author: By SKEEL, J:

text:
    SCHUMACHER, d. b. a. PERFECTION HEATING AND ENGINEERING CO., Plaintiff-Appellee, v. IRON FIREMAN MANUFACTURING COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23609.
    Decided April 25, 1956.

      Richard J. Moriarty, for plaintiff-appellee.
    Davies, Eshner, Johnson & Miller, Francis B. Douglass, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment entered on the verdict of a jury for the plaintiff, the action being for money only.

The plaintiff, a heating contractor, alleges that he bought an FGF-120 Gas Furnace from the defendant. He further alleges that he sold the furnace to one Gunter and installed it in Mr. Gunter’s home, together with the necessary sheet metal piping or ducts and performed all of the other work necessary to provide a proper hot air heating system in the Gunter home, including connecting the fume outlet built into the furnace to the vent or chimney constructed by Gunter.

It is the claim of the plaintiff that when put in operation, the furnace emitted oily soot, dirt and vile and dangerous and noxious gas through the hot air registers, damaging the walls and furnishings of the Gunter home.

The petition alleges the defendant tried to adjust the operation of the furnace without success. The petition then asks damages in the amount of $741.00, which is alleged to be the cost of the furnace—$241.00, and the cost of the duet work and service of the plaintiff in making adjustments, totaling $500.00.

The evidence, not in dispute, establishes that the plaintiff, a heating contractor, fully cognizant of what he was buying, purchased the furnace by the manufacturer’s designation of FGF-120 Iron Fireman from the defendant. After the purchase, the plaintiff contracted with one, Dean Gunter, to install the heating system in a new home he was constructing, located at 563 Humiston Drive in Bay Village, Ohio, that the plaintiff showed Dean Gunter several furnaces and that he picked out the furnace above described. Dean Gunter testified that he was in the business of selling kitchen equipment and some furnace equipment. The plaintiff installed the furnace, together with all necessary hot air pipes, cold air drops and the like, and a mason sub-contractor of Gunter built the chimney according to specifications furnished by him and that the furnace was vented by a six inch galvanized pipe to this chimney. The furnace was installed “a little early because we got to the plastering stage” and the furnace was needed to dry the plaster. The installation was finished sometime in November, 1948. Thereafter, a hot water heater with a three inch vent and an incinerator with a six inch round metal vent were both vented to the same chimney.

The furnace was put into immediate operation, that is, before the owner moved in (which was in February, 1949), and within three weeks or a month there was a deposit of black oily soot on the plaster above the hot air registers and in other places about the house. This fact was noted both by Gunter and the plaintiff. The house was completed after noting this condition, the papering being put over the soot covered plaster.

After the owner moved in, he complained to the plaintiff about the continued emission of oily soot. He testified: “At that point, I asked if he (the plaintiff) would be good enough to replace the furnace or take it out and get something else.” This was in March or April of 1949. Thereafter, the defendant was contacted and a service man was sent out to the Gunter home who recommended, and there was subsequently installed, a cold air return on one side to take the place of one of the cold air drops. The owner then testified that the same condition continued. It is also clear that other heating men were called to make changes in the furnace subsequent to the service call of the defendant and at some subsequent time (1953) a metal chimney six inches in diameter was installed and used exclusively to vent the furnace. The furnace unit as originally installed, with the exception of some renewed electrical controls, was still in use in the Gunter home upon the filing of this case on April 12, 1954, or five and one-half years after the first complaint was made that it did not operate properly.

The plaintiff testified that he put in the duct work at an expense of $400.00. There is no denial of the fact that the installation of the duct work was satisfactorily done and that it was and still is a necessary part of the heating system of the house. There is direct conflict as to whether there was a leak in the combustion chamber of the furnace. The plaintiff testified that he conducted a “Wintergreen” test which disclosed to him that there was a leak in the combustion chamber. He had testified previously that when the furnace was put in operation, he ran a COa test to be sure everything was all right and in answer to the question: “Was the furnace of the Gunter’s as installed by you and tested by you operating properly?” He answered: “Yes, it was.”

The defendant’s engineer, just shortly before this case came to trial, made an examination of the furnace combustion chamber for leaks with the light test and found no leaks. This evidence is given great support by the fact that the plaintiff did not replace the combustion chamber and it was still in use as originally installed three months before this trial.

Another serious conflict in the evidence has to do with, the sufficiency of the chimney as installed by Gunter. The plaintiff and other witnesses who testified in his behalf said the inside of such masonry chimney measured 6x8 inches and was without any obstructions when tested by the use of a mirror. They would not swear, however, that they made measurements to make sure of its size. The defendant produced two witnesses who testified that they measured the chimney and the measurements were 12 x 16 inches on the outside which with the flue lining would make it 3 x 7 inches on the inside and that by the use of a mirror, they could tell that the flue was partially blocked with plaster. These witnesses testified a 21 square inch flue opening was not sufficient to vent the furnace. It was testified that the furnace is provided with what is called a “draft converter or diverter” to safeguard against flue obstructions and down drafts; that when the venting of the furnace was changed from the masonry chimney to the metal chimney, the draft diverter was moved from one side of the furnace to the other and that on the ceiling above where it had been installed when vented to the masonry chimney, there was a large deposit of soot but that there was no discoloration of the ceiling above the place where it was located when the metal chimney of proper size was installed (1953), the witnesses having made the inspection before trial in 1955.

The defendant claims the following errors:

“1. The Court erred in overruling Defendant-Appellant’s Demurrer to the territorial jurisdiction of the Court;
“2. The Court erred in overruling Defendant-Appellant’s objection to the introduction of testimony on the ground that the Petition did not state a cause of action;
“3. The Court erred In failing to grant Defendant-Appellant’s Motion for a Mistrial because of improper statements made by the PlaintiffAppellee in the presence of the jury;
“4. The Court erred in admitting testimony of conversations between Dean W. Gunter and Fred Fenker not in the presence of the Defendant-Appellant;
“5. The Court erred in ruling that Ardon Barnes qualified as an expert witness on furnace equipment, installation and operation;
“6. The Court erred in permitting hypothetical questions in the forms submitted to be asked of and answered by Ardon Barnes and Edwin Schumacher;
“7. The Court erred in permitting Plaintiff-Appellee to introduce evidence over the objection of Defendant-Appellant, which rulings were prejudicial to the rights of the Defendant-Appellant;
“8. The Court erred in excluding evidence offered on behalf of the Defendant-Appellant;
“9. The Court erred in overruling Motion for a Directed Verdict by the Defendant-Appellant at the close of Plaintiff-Appellee’s testimony;
“10. The Court erred in refusing to submit special findings of fact numbers 1, 2 and 3 to the jury;
“11. The Court erred in overruling a Motion by Defendant-Appellant for judgment non obstante veredicto;
“12. The Court erred in overruling Defendant-Appellant’s Motion for a New Trial;
“13. The Court erred in its charge to the jury;
“14. The verdict of the jury is contrary to law;
“15. The verdict of the jury is manifestly against the weight of the evidence;
“16. And further errors apparent on the face of the record.”

Error No. 1 must be overruled. It is true that the Municipal Court of Parma was without jurisdiction of the defendant, a resident of Cleveland, as determined by this Court in the case of Gibson v. Summers Construction Co., 96 Oh Ap 307, 119 N. E. 2nd 637 (affirmed by the Supreme Court 163 Oh St 220). But the defendant submitted to the court’s jurisdiction by seeking and being granted leave to plead. See also: Brundage v. Biggs, 25 Oh St 652.

In the case of Long v. Newhouse et al., 57 Oh St 348, the second paragraph of the syllabus provides:

“2. In order to enable a defendant to object to the jurisdiction of the court over his person, the objection must be made at the earliest opportunity of the party. If before making such objection, the party appears and makes a motion that the plaintiff be required to attach an account of the items of his claim to his petition, or, that he be required to separately state and number his causes of action, or, that he be required to strike certain matter from his petition, in either of these cases, the party voluntarily submits himself to the jurisdiction of the court, and he cannot afterwards be heard to object thereto.”

The defendant’s claim that the plaintiff’s petition does not state a cause of action is well taken. The petition alleges that defendant warranted the furnace but alleges no defect in the furnace which would constitute a breach of such alleged warranty, which as pleaded, constituted a legal conclusion and not a statement of fact. No defects in the furnace are alleged as facts causing the emission of soot to his damage. The damage, if any, was likewise pleaded as • being suffered by Gunter, not the plaintiff. In the case of Federal Ins. Co. v. International Harvester Co., 91 Oh Ap 369, this Court said in the first paragraph of the syllabus:

“1. Where a manufacturer sold trucks under a written contract containing an express warranty that they were free from defect in material and workmanship and reciting that the seller’s obligation under the warranty was ‘limited to making good at its factory any part or parts thereof which shall be returned to it with transportation charges prepaid, and which its examination shall disclose to its satisfaction to have been thus defective,’ and a petition by the subrogee of the buyer against the seller alleged that it was impossible to comply with the condition in the warranty regarding the return of the defective parts and that defendant, by its conduct, waived compliance with the condition, the allegations constituting legal conclusions were not admitted by demurrer and the petition fails to set forth a cause of action, in that it fails to allege circumstances constituting a waiver of the conditions of the express warranty pleaded.”

The question of damages will be considered hereafter.- Because of the failure to allege damages as a result of specific defects, the petition is also defective and does not state a cause of action. Willeke v. Neuenschwander, 55 Oh Ap 527.

The third claim of error has to do with the refusal to declare a mistrial because of plaintiff’s conduct in the presence and hearing of the jury. The record shows that as the jury was dismissed for the noon recess on May 26th, which was the first day of' trial, before the jury had left the courtroom, the attorney for the plaintiff, in a loud voice, said: “We are pulling another Iron Fireman burner next week.” A motion for mistrial was made and overruled. The argument on this question when presented to us was factually quite different as to the speaker and the circumstances then existing but we are bound by the record certified to us by the trial judge which is as just stated. Such a statement, in the hearing of the jury, would indeed be prejudicial. We must, therefore, sustain this claim of error.

Assignment of error No. 4 is overruled. It is based on receiving in evidence conversations between Gunter and the salesman of the defendant who sold the furnace to the plaintiff. While in a technical sense this evidence was hearsay, yet the greater part of it received, together with the conduct of the parties with respect thereto, shows that the defendant was not prejudiced by its submission to the jury.

Errors No. 5 and No. 6 deal with the qualification of an expert witness presented by the plaintiff, permitting the witness and the plaintiff to answer a hypothetical question dealing with the color of the flame produced by the gas burner in the furnace and the conclusions to be deducted as to whether or not soot would be formed in the combustion chamber because of the absence of a primary air adjustment in the construction of the burner which burned with a yellow ñame. These questions were for the jury under proper instructions by the court. These claims of error are, therefore, overruled.

Errors No. 7 and No. 8 deal with the admissibility of evidence, first as to the evidence of damage tendered by the plaintiff and second as to a descriptive booklet describing the construction of PGP series radiant gas furnaces of the defendant, one of which is the subject of this case.

The evidence of damage objected to by the defendant was highly prejudicial to it. The plaintiff’s evidence received by the court on this subject was the selling price of the furnace and the expenses incurred by the plaintiff in installing the duct work in the Gunter house as representing his damage. These costs were in no way related to the damages claimed for an alleged breach of warranty as to the suitability of the furnace as a house heating unit.

The defendant had absolutely nothing to do with the hot air pipe or duct work installed in the Gunter home by the plaintiff and whether the furnace purchased was usable or not, the cost of such work was no more related to the question of plaintiff’s damage as the issues are here presented than the cost of the plumbing or the construction of any other part of the house. To heat a house with hot air, hot air pipes are necessary. They were installed by the plaintiff and are now in the house as a necessary part of it. If they were improperly installed, the defendant who took no part in their construction could not be held responsible. The introduction of such evidence cannot be justified on any grounds.

Permitting evidence to be presented to the jury as to the cost of the furnace as evidence of damage in a breach of warranty case was equally prejudicial. Whether the plaintiff paid too much or too little for it can never be an issue in an action claiming a breach of warranty. The measure of damages in an action of this kind is spelled out in the Uniform Sales Code of this State. Secs. 1315.70 and 1315.71 R. C. The first of these sections provides three remedies for an action claiming breach of warranty, each one of which is exclusive of the other. They are: “recoupment,” “action for damages” or “counterclaim against action for the price,” and “rescission.” In this case the facts preclude the possibility of seeking either recoupment or rescission. The measure of damages permitted in an “action for damages” is provided for in the last two paragraphs of the section.

“The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events from the breach of warranty.

“In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.”

Sec. 1315.71 R. C., provides:

“Secs. 1315.01 to 1315.76, inclusive, R. C., do not affect the right of a buyer or a seller to recover interest or special damages in any case where interest or special damages may be recoverable, or to recover money paid when the consideration for the payment of it has failed.”

The measure of damages that is applicable here, therefore, is the difference between the value of the furnace if it had been as represented by express or implied warranty and the value of that which was actually delivered, plus any consequential damage as may have resulted from the use of the furnace sufficiently long to discover a defect, if any, and a reasonable time thereafter to replace the defective part or if necessary, to replace the furnace.

Here the plaintiff’s rights can rise no higher than those of the owner of the property who must act with due diligence so as not to increase the damages resulting from a claimed breach of warranty. The facts in this case conclusively show that the claimed defective part is still in use more than five and one-half years after it was alleged that both the plaintiff and Gunter discovered it. Under these facts, any consequential damage recoverable could not extend beyond a time that would be reasonably necessary to correct or replace the furnace if in fact such action could be justified. Nor may the plaintiff, as purchaser, make a settlement with the owner as sub-purchaser that is satisfactory or agreeable to them and allege such settlement as his measure of damages against the original seller. The measure of damages for alleged breach of warranty in the sale of personal property is one of legal determination under the rules provided by the Sales Code and not otherwise. Evidence of any repayment of the purchase price or cost to him by a purchaser of alleged warranted goods voluntarily made is not admissible to establish damages against the original seller under any circumstances without showing that such amount is in fact the damages recoverable under the law and the facts.

In the case of Lucas v. Kemmerling Co., 115 N. E. 2nd 17, this Court said on page 18:

“This action is an original one by the buyer seeking damages, for breach of warranty so that his damages, if established, would be the difference between the value of the truck, if it had been as represented, and its value as received.”

In the case of Hedeen v. Bausinger, 28 Oh Ap 336, 162 N. E. 650, the first paragraph of the syllabus provides:

“1. In action for breach of contract of warranty in sale of secondhand truck, measure of damages, so far as general damages are concerned, is difference, if any, between actual market value of truck at time and place of sale, and what would have been its fair market value at time and place of sale if it had been as warranted.” and in Hirschl, etc. v. Richards, 28 Oh Ap 38, 162 N. E. 616, the court said on page 41:
“Now the record shows that this furnace was installed under a contract of warranty, and the evidence from the experts shows that it would have cost in all about $50.00 to put this furnace in such a condition that it would comply with the warranty. It must be remembered that this furnace was installed, and still remains installed, in that house, and, so far as it appears, is doing the work for which it was purchased and installed. There never was any offer to return this property, and the result of the lawsuit is to the effect that the defendants have the furnace installed in their house and have a judgment to recover the money that had been paid upon it, and this, too, it must be remembered, without any rescission of the contract, offer to rescind, or offer to put the other person in statu quo. If there was a breach of the warranty as to what this furnace would do, that could be compensated as damages. The defendant should have proven his damages, and would have been entitled to recoupment to that extent, and no more. In any event, he was not entitled to recover the money back and keep the furnace, too.”

Any claim for consequential damages in the sale of personal property where breach of warranty is claimed must be limited to such damages as are suffered when ordinary care is exercised in discovering the defect, if any, and like care in providing against such defect by repair or replacement with reasonable dispatch. Reasonable conduct is required on the part of the purchaser in claiming damages for breach of warranty where the right of rescission is waived and where the goods have been resold by the original purchaser, he is limited, in an action against the original seller, in any claim for damages for breach of warranty to the actual damage that could legally be recovered against him by the sub-purchaser under like warranty obligations.

In the case of Foundry Co. v. Stone Co., 92 Oh St 76, paragraphs 2, 3, and 4 of the syllabus provide:

“2. Where, in an action for damages for breach of warranty, it is claimed by the purchaser that the defective machinery, covered by the warranty, delayed the operation of the factory of which it is a part, and it appears from the evidence offered by the purchaser that other causes contributed to the delay, the burden is upon the purchaser to show, by a preponderance of the evidence, what part of the delay was caused by the defect in the machinery warranted and what damages, if any, were sustained by reason of the delay so caused.
“3. Where an article covered by a contract of warranty is purchased for the purpose of being used as a separate unit in a factory, and the operation of the whole factory depends upon this unit properly performing its part, both in quantity and kind, with the other parts, the purchaser cannot retain this article in place in his factory for an unlimited time after discovering that it is defective and recover as damages the daily loss in the operation of the entire factory, but must within a reasonable time substitute a machine, in place of the defective one, that will do its part of the entire work without delaying the operation of the other parts.
“4. If the purchaser elects to retain such defective machinery as a part of his factory, notwithstanding its failure to produce the quantity of the product manufactured by the factory that it is warranted to do, his recovery is limited by the provisions of division (a), paragraph (1) of §8449 GC, to a recoupment in diminution or extinction of the price paid therefor.”

Many cases in support of these rules of law will be found in 33 A. L. R. 2nd 501 in the Annotations beginning at page 511. Also 64 A. L. R. 881, Annotations at page 883; 46 Am. Juris. 863 and 884. We hold that the plaintiff offered no admissible evidence of damage and that the court's action in overruling the defendant’s objection to evidence of the cost of the furnace and installing air ducts was clearly prejudicial.

Assignment of error No. 9, whereby it is claimed the court erred in overruling defendant’s motion for directed verdict for defendant at the conclusion of plaintiff’s case must be overruled because the defendant then proceeded with its evidence, waived the right to rely on such motion. City of Zanesville v. Stotts, 88 Oh St 557, Halkias v. Wilkoff Co., 141 Oh St 139, Wilkcson v. Erskine & Son, 145 Oh St 218. The defendant did renew the motion at the conclusion of the taking of all the evidence which motion was overruled but no error is claimed or presented as the result of overruling such motion.

Assignment of error No. 10 concerns the refusal to submit special finding of fact Nos. 1, 2, and 3, as requested by the defendant.. These requests involved the question of whether the plaintiff asked the defendant for advice on the method of installing the furnace; did the defendant participate in its installation and was such furnace in accordance with and approved by the American Gas Association? We hold the court was correct in refusing these requests because answers to these questions would in no way assist in testing the verdict on the sole issue here presented of a breach of warranty of the furnace manufactured and sold by the defendant. It is also true that there is no dispute in the record insofar as there is any evidence dealing with these questions.

Assignment of error No. 13 deals with the charge of the court. Two special instructions before argument were requested by the defendant. The record is incomplete as to what the requests for special charges before argument were as requested by the defendant, such special request not being found in the transcript. It is, therefore, difficult to determine why the court, after reading what was said to be request No. 1, upon objection by the defendant who presented the request said: “I beg your pardon. Withdraw that last portion. The only part that will remain is this.” The court then read a charge in some respects contradictory to what had been read, substituting the word manufacturing for the word installation and adding a third clause to the charge. The court then directed the court reporter to strike from the record and the jury to disregard the special instructions thus far given because “there has been a slight change in those instructions.” The court then proceeded to give two special instructions before argument. Without the complete transcript, it is impossible to pass on the error here claimed by the defendant. It must be observed that there is considerable confusion in the record as to what was intended by the court under the foregoing circumstances but without a complete record, we must overrule the claimed error.

The defendant complains of the court’s charge on the subject of damages. The subject of damages was referred to on two occasions in the charge, first in explaining the issues presented by the pleadings and the admissions therein contained, the court saying that the defendant admitted receiving $241.00 for the furnace; the second occasion was where the court read from §1315.70 R. C. as follows:

“The measure of damages for a breach of warranty is the loss directly and naturally resulting in the ordinary course of events from the breach of warranty.”

The court then reread this part of the section and that ended all reference to damages in the charge. It is indeed incomplete and by its incompleteness, inaccurate and prejudicial.

The defendant further complains that the court’s charge on the subject of expert witnesses was erroneous and prejudicial for the reason that the jury was instructed that when considering the' testimony of expert witnesses, they are to determine the weight to be given to such testimony based on the qualifications of a witness to testify as an expert, which duty the defendant contends comes within the sole province of the court. The defendant misconstrued the meaning of this part of the charge. What the court here told the jury was that they should weigh and determine the evidence of expert witnesses by considering their background, knowledge and experience on the subject, and whether the facts upon which the opinion was based were established by the evidence. The court here correctly stated the rule.

We find that the charge, when considered in its entirety, does not clearly state the issues as pleaded and goes, in some instances, outside the case pleaded by the plaintiff. While some of the complaints about the charge set forth in assignment of error No. 13 cannot be sustained, such as the one on the expert witness, we find, when considering the charge in its entirety that the charge was incomplete, inaccurate and prejudicial to the rights of the defendant requiring this court to sustain this claim of error.

Assignment of error No. 15 is that the judgment is against the manifest weight of the evidence. In considering this question, it will be necessary to set forth the evidence in greater detail than has heretofore been done. It is the claim of the plaintiff that the defendant breached its implied warranty of merchantability of the furnace sold to him because it had a leak in the combustion chamber and the flame of the burner produced excessive oily soot and dangerous gases. In support of this claim, the plaintiff’s evidence was to the effect that shortly after the furnace was put in operation (to dry the plaster) oily soot formed on the plaster above the warm air registers and other places about the house; that even though the plaster above the hot air registers was covered with black, oily soot in less than a month after the furnace was started, the house was finished, wallpaper being put on over the sooty spots and the owners moved in. Upon complaints to the plaintiff by the owner about the operation of the furnace, he, the plaintiff, conducted a “Wintergreen” test which he said indicated a leak in the combustion chamber. The defendant was called and notified of the sooty condition and some adjustments were made by it and a cold air return recommended to be placed from one of the four cold air drops to the furnace which was done. The plaintiff and an expert witness presented by the plaintiff testified that there were no primary air intakes for the burners and that the flame was yellow, indicating poor cumbustion. thereby creating soot, and that such poor combustion and the leaky condition of the combustion chamber was the cause of the trouble. They also testified that the chimney to which the furnace was vented, had a flue, the inside measurements of which were 6x8 inches although they did not produce the chimney specifications or have any recollection of actually measuring it. The owner’s testimony was also to the effect that upon advice of others, and following his own judgment, he installed a new metal chimney, the same size as the furnace vent. This was done early in 1953. He also testified that the furnace was still in operation at the time of trial in 1954 and no changes had been made except for the chimney and except for replacing one of the electrical controls because the thing started to buzz. The plaintiff testified that on demand from the owner, he paid back all the money he had received for the installation, including the cost of the furnace but the owner in his testimony did not mention such demand or acknowledge the return of the money.

The defendant’s evidence was to the effect that there was no leak in the combustion chamber as disclosed by a light test which is the approved way to test for a leak in a combustion chamber of a furnace. The test was made three months before the trial of this case in 1955. The original combustion chamber was still in the furnace unchanged and in use. An expert witness for the defendant testified that the owner built the chimney too small to properly vent the furnace, having an inside opening of 3 x 7 inches by measurements made by the witness, which opening was partly obstructed by plaster, and that there were an incinerator and hot water heater operated by gas which were likewise vented to this undersized chimney. This witness testified that the flue opening was wholly inadequate; that the furnace is equipped with a relief draft divert to allow products of combustion to escape in case the flue is obstructed or in the event of a sudden down draft; that over the draft divert, as originally installed and connected to the chimney built by the plaintiff, the ceiling was covered with large quantities of soot, in some places one quarter inch thick; that when the owner put in the new chimney in 1953, the draft divert was moved to the other side of the furnace and that when inspected by the witness in 1955, there was no soot on the ceiling over its (the draft divert) new location. The defendant’s experts also testified that the burner furnished for this furnace was of the radiant type which naturally produces a yellow flame, the burner not being constructed with and cannot use a primary air intake; that either the insufficient size of the chimney vent or the blocking of air to the combustion chamber would cause soot to form when the burner was in operation. This witness also said that after the new chimney of a proper size was installed in 1953, the furnace had operated in a satisfactory way. This statement was not rebutted or denied in any way by the plaintiff. Such conflict as there is in the evidence as above detailed, when considered with the undisputed fact that the furnace, as installed, except for venting it to a new chimney, had been in use for over five and one-half years before this case came to trial and two years since the new chimney was installed, so that under all the circumstances, no other conclusion could be reached, but that a judgment for the plaintiff could not be sustained and is against the manifest weight of the evidence.

The remaining assignments of error, Nos. 11, 12, 14 and 16, which concern the overruling of defendant’s motion for new trial, its motion for judgment non obstante veredicto, that the judgment is contrary to law, and other errors manifest on the face of the record, will be sustained for the reason that the petition does not state a cause of action and for the further reason that the plaintiff failed to present any evidence that he suffered any damage.

For the foregoing reasons, the judgment is reversed and final judgment entered for the defendant. Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    ARMSTRONG, Plaintiff-Appellant, v. ARMSTRONG, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5362.
    Decided March 1, 1956.
    Brownfield & Malone, Columbus, for plaintiff-appellant.
    Louis H. Wedemeyer, Columbus, for defendant-appellee.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court, Division of Domestic Relations, sustaining the motion of the appellee and ordering that the appellant contribute to the support of the parties’ three minor children. The record reveals that on August 25, 1952, the Court granted a divorce to the appellee on his cross-petition, and gave him custody of their three children; that a separation agreement was executed by the parties and made a part of the divorce decree which provides that the appellant in return for the payment to her of one hundred dollars surrendered to the appellee all her right, title and interest in and to the parties’ former home, furniture and household equipment. It further provides that the appellee shall have the custody and control of the children and concludes with the words,

“* * * each of the parties hereto releases and discharges the other from all obligation of support and maintenance, and from all other claims, rights and duties arising out of the marital relationship.”

On April 21, 1955, the appellee filed a motion seeking an order requiring the appellant to contribute to the support of the children. The appellee alleged in said affidavit,

“that due to increased living costs for the care, maintenance, education and support of said children, he is unable to continue the same standard of living for these children without some contribution from the mother of the children, who is fully capable of contributing to said children’s support.”

The Court referred the matter to a Referral Officer who, after analyzing the testimony, made the following factual conclusion:

“I am satisfied in my mind that defendant testified truthfully and forwardly respecting his financial position. He established to my satisfaction, an inability to maintain the children upon their present standard of living without additional assistance. He should not be obliged to first seek such assistance from relatives or benefactors other than the mother of the children.”

The Court sustained the motion upon the finding and recommendation of the Referee, and ordered the appellant to pay the sum of $12.00 per week toward the support of the children.

We have examined the entire record and are of the opinion that it fully supports the findings of fact made by the referee. The question therefor presented is whether or not the Court had authority to modify the support order for these children. Sec. 3103.03 R. C., places the primary responsibility upon the husband to support his minor children out of his property, but if he is unable to do so the wife must assist him so far as she is able. Although provision was made in the divorce decree for the support of the children, the same is subject to a change upon a proper showing being made. It is a well established principle of law in Ohio that a separation agreement which is made a part of the decree may be modified at a later date by increasing the amount specified for the support of the children in order that they may receive adequate support, but with respect to the rights between the parties themselves, the provision made in the separation agreement with respect to permanent alimony and which was approved and ratified by the Court and made a part of its decree cannot thereafter be modified in the absence of fraud or mistake. Campbell v. Campbell, 46 Oh Ap 197; Ferger v. Ferger, 46 Oh Ap 558; Law v. Law, 64 Oh St 369. In Tullis v. Tullis, 138 Oh St 187, at page 192 the Court said:

“This court has also held that even though such a contract has been made a part of the decree of divorce, yet because of the continuing jurisdiction of the court and because of the demands of public policy, the court may subsequently increase the support allowance for children if changed circumstances require it, since a parent cannot by his own contract relieve himself of the legal obligation to support his minor children. 14 O. Jur., 546, Section 141. In the case of Corbett v. Corbett, supra, the wife sought to have the amount allowed her for the support of her two minor children increased and this court held that the lack of a reservation of jurisdiction in the original decree did not deprive the trial court of continuing jurisdiction, and affirmed a judgment increasing the allowance for the support of minor children.”

Counsel for the appellant relies upon the case of Kintner v. Kinter, 78 Oh Ap 324. It appears that in this case the husband and wife were divorced and their minor child was placed in the custody of a third person, and the husband ordered to pay $10.00 per week for its support. Later, the Court modified the order and required the wife to contribute to the support of the child without any finding that the husband was unable to provide such support. This Court held that it was within the province of the trial court to modify its former order with respect to the support allowance of the child, but it had no authority to modify the former order with respect to the rights already fixed between the plaintiff and defendant regarding alimony. These rights had been previously fixed by contract and which was made a part of the decree of divorce. The Court held that under the facts presented in this case the wife could not be required to contribute to the support of the child. The Court held, however, that the wife is secondarily liable for such support. The first paragraph of the syllabus of this case provides:

“Under the provisions of §7997 GC, the liability of the husband to support his minor children is primary and that of the wife is secondary; the wife is not required to support her minor children unless the husband is unable to do so.”

It is our conclusion that the record supports the factual findings of the trial court and therefore the Court did not err in ordering the wife to render some assistance in the support of these minor children.

The judgment is affirmed.

HORNBECK and DEEDS, JJ, concur.


author: By HOY, J.:

text:
    WILHELM, Plaintiff, v. LANDT et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-147696.
    Decided December 7, 1955.
    John J. Rivers, for plaintiff.
    Augustus Beall, Jr., for defendants.
   OPINION

By HOY, J.:

This cause is before the Court on the motion of the plaintiff to make The Fifth Third Union Trust Company of Cincinnati, Ohio, as trustee under an agreement dated January 6, 1949 by and between the said The Fifth Third Union Trust Company and Harry Landt, a new party defendant and also upon the motion of the defendants to dismiss the action upon the following facts:

The action is one to contest the will of Helen Meis, deceased. The will and probate and the affidavit of Harry W. Niehaus, Trust Officer of The Fifth Third Union Trust Company, offered in evidence in support of the motion to dismiss, show that the will was admitted to probate on November 12, 1954. Item VII of said will is in part as follows:

“I give and bequeath to the Fifth Third Union Trust Company of Cincinnati, Ohio, and Harry Landt, of Cincinnati, Ohio, as Trustees, all the rest, residue and remainder of my property, real and personal, wheresoever situate, which I may own or have the right to dispose of at the time of my death, including lapsed legacies, in trust nevertheless, for the following uses and purposes: * * *”

Item VI, paragraph G of said will is as follows:

“In the event the said Harry Landt has predeceased me, or surviving me, has predeceased his children, Stephanie and Alice Jean, then the balance shall be paid over to The Fifth Third Union Trust Company, of Cincinnati, Ohio, as Trustee, under an agreement dated January 6, 1949, by and between the said The Fifth Third Union Trust Company and Harry Landt, to be added to and distributed as a part of said Trust Agreement, in accordance with its terms.”

The Trust Company is named in the caption of the case in its capacity as executor and also as trustee under the will of Helen Meis, deceased and was properly served in each of these capacities. It is not, however, mentioned in the caption as trustee under the living trust created by Harry Landt on June 6, 1949, nor is it mentioned in this capacity in the petition, nor was service upon it ever obtained in such capacity.

Two questions are presented by this state of facts:

1. Can service upon the Trust Company in its capacity as trustee under the will of Helen Meis, deceased be considered to include service upon it in its capacity as trustee under the Landt trust?

2. If not, does §2305.17 R. C. apply to will contest cases so as to permit the making of the Trust Company as trustee under the Landt trust a new party defendant and ordering service of summons upon it after the expiration of the six months period following the probate of the will?

As to the first question, it seems to me to be quite clear that the Trust Company as trustee under the will and the Trust Company as trustee under the Landt trust cannot be considered as one person any more than an executor who is also a devisee or legatee under the will can be considered as one person. The Supreme Court in the case of Bynner v. Jones, 154 Oh St 184 seems to have made this clear when it sustained the dismissal of a will contest action because of the failure of the plaintiff to sue or serve Jones as executor even though he was properly sued and served individually as a devisee under the will. The Court holds, therefore, that The Fifth Third Union Trust Company as trustee under the Landt trust is a necessary party and that service upon it as trustee under the will cannot be considered service upon it in its capacity as trustee under the Landt trust.

The second question is, however, much more difficult. The Trust Company, as trustee under the Landt trust, is a legatee and, as such, is united in interest with other duly served legatees. The Supreme Court of Ohio has repeatedly held that §11230 GC was applicable in will contest cases so as to permit service upon a defendant in such cases after the expiration of the statutory period of limitation provided that others who were united in interest were served within such period. (See Gravier v. Gluth, 163 Oh St 232.) It is contended by the defendants, however, that the legislature, in substituting the phrase “within the meaning of §§2305.03 to 2305.22, inclusive, and §1307.02 R. C.,” which appears in §2305.17 R. C., for the phrase “within the meaning of this chapter” which appeared in former §11230 GC, thereby clearly intended to exclude will contest actions from the “united in interest” provisions of §2305.17 R. C. Defendants argue that by the use of the substituted language the legislature intended that the “united in interest” provision should be applied only to cases under the general statute of limitations and to one other specifically named class of cases, to wit: actions under a forged or raised check, and that by including one special type of action, all other special type actions such as will contests were to be •excluded.

With this contention the Court cannot agree. Very frankly, I cannot understand why the legislature referred to §1307.08 R. C. when it enacted §2305.17 R. C., because this latter section simply sets forth the conditions under which an action may be deemed to have been commenced. Sec. 1307.08 R. C., provides that a bank may not be liable to a depositor for money paid on a forged or raised check on the account of such depositor unless it has been notified by the depositor of such forgery within one year. It makes no reference to the time within which such depositor may bring an action against the bank and, provided that proper notice has been given by the depositor, the time within which such an action could be commenced would be entirely governed by the general statute of limitations. Consequently, the reference to §1307.08 R. C. in §2305.17 R. C., is utterly meaningless and cannot be considered as any evidence of an intention upon the part of the legislature to exclude will contest actions from the “united in interest” provision of said §2305.17 R. C.

Furthermore, it must be noted that at the same time it enacted §2305.17 R. C., the legislature also enacted §1.24 R. C., which is as follows:

“That in enacting this act it is the intent of the General Assembly not to change the law as heretofore expressed by the section or sections of the General Code in effect on the date of enactment of this act. The provisions of the Revised Code relating to the corresponding section or sections of the General Code shall be construed as restatements of and substituted in a continuing way for applicable existing statutory provisions, and not as new enactments.”

Finally, in passing upon this question, the Court must indulge every reasonable presumption and resolve every doubt in favor of affording rather than denying the plaintiff her day in court.

For these reasons, the motion of the plaintiff to make the Trust Company as trustee under the Landt trust a new party defendant will be granted and the motion of the defendants for a dismissal of the action will be denied.

Entries may be submitted in accordance herewith saving exceptions to the defendants.


author: Per CURIAM:

text:
    ZWICK & ZWICK, Plaintiff-Appellee, v. SUBURBAN CONSTRUCTION CO., Defendant-Appellant. ZWICK & ZWICK, Plaintiff-Appellee, v. ALL-STATE HOME EQUIPMENT CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23712, 23714.
    Decided May 23, 1956.
    Daus & Schwenger, Harry Kottler, of Counsel, for plaintiff-appellee.
    Albert C. Nozik, for defendant-appellant.
   OPINION

Per CURIAM:

In these two actions for accounting services here appealed from Municipal Court on questions of law from judgments in favor of plaintiff, a partnership, we shall consider first Appeal No. 23712. and secondly, Appeal No. 23714,

Considering first Appeal No. 23712, the first assignment of error is that the court erred in entering judgment for plaintiff as assignee of the claim sued upon when there was no allegation of assignment set forth in the petition.

The record shows that the court entered a judgment for plaintiff, part of which was on a presumed oral assignment for services which had been performed by one of the individual partners prior to the claimed assignment and who failed to testify in support of same. In our opinion, this assignment of error must be sustained. The general rule is that an assignee of a claim must allege and prove the assignment. In 4 American Jurisprudence 330, Sec. 126, the author states:

“The plaintiff, when suing in his own name, must set out facts necessary to show title in himself; he must allege the assignment of the claim sued upon and upon which his right of recovery depends.” and again in Section 127, it is stated:
“. . . an objection that the plaintiff’s pleading fails to show a valid assignment, and therefore does not state' a cause of action, is not waived by failure to demur, but may be taken at any stage of the proceeding.”

To the same general effect, see the Ohio cases of: Lowther v. Lawrence, Wright 180, and B. & O. & C. R. R. Co. v. Gibson, 41 Oh St 145.

The third assignment of error is that the court erred in refusing to permit appellant to cross-examine the adverse party after the court had permitted the plaintiff to reopen his case. This assignment of error must be sustained as the defendant, as a matter of right, should have been permitted to call the adverse party for cross-examination under the provisions of §2317.07 R. C. See Bates v. Flath, 81 Oh Ap 188, 36 O. O. 511, 78 N. E. (2d) 56.

The seventh assignment of error is that the trial judge failed to file written findings of fact stated separately from his conclusions of law. This assignment of error must likewise be sustained. The defendant made a seasonable request for separate findings of fact and conclusions of law as shown by the record but instead of complying with the request, the court merely dictated into the record what appears to be an opinion which, in our view, does not conform to the requirements of §2315.22 R. C., which provides as follows:

“When the questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, before the journal entry of a final order, judgment, or decree has been approved by the court in writing and filed with the clerk of the court for journalization, one of the parties requests otherwise, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

The Uniform Municipal Court Act authorizes application of this system to all civil actions in Municipal Court—§1901 R. C. See also: Levick v. Bonnell, 137 Oh St 453, 19 O. O. 150, 30 N. E. (2d) 808.

An examination of the record indicates there are many things lacking in the opinion dictated by the court in order to bring it in conformity With the statute. For example, the court did not give any consideration to the lack of pleading of an assignment of the claim nor to the question of proof of the same. The court likewise did not include the fact that no answer and reply was filed by plaintiff to defendant’s answer and cross-petition. Likewise, the court made no reference to the affirmative defense of defendant pleading payment to one of the parties who was the original accountant.

The court erred further in not finding for the defendant on his cross-petition, there having been no answer filed thereto by plaintiff for which reason the allegations thereof should have been taken as true or in the alternative, the court should have required the filing of proper pleadings to make up the issues.

For the foregoing reasons, the judgment in Appeal No. 23712 is reversed and the cause remanded for further proceedings according to law.

Coming now to a consideration of Appeal No. 23714, between the same parties, we find there is likewise a failure by plaintiff to plead an assignment of the cause of action sued upon. The accounting partnership of plaintiff was formed in July 1950; the account attached, marked Exhibit (A) and made a part of plaintiff’s petition, covers the period from the formation of the partnership in July 1950 to January 1951. The amount asked for on a quantum meruit basis in the petition and the amount set forth in Exhibit (A) attached, is $440.00. However, the plaintiff was given leave to amend his petition to read: “the sum of Forty Dollars ($40.00) per month from November 1, 1949 to October 31. 1950.” The sum prayed for was changed to $480.00. Also an invoice was referred to by plaintiff’s witness which was sent to defendant for services rendered, dated February 1950. The plaintiff’s witness, Philip Zwick, testified that the partnership was formed in July 1950 and that prior to that time, it had no contact with the defendant; that Irving Zwick, who in his individual capacity had done the work sued for prior to July 1950, and had made the contract with defendant, was added to the partnership in July 1950. However, Irving Zwick did not testify and there was no evidence of an assignment introduced by plaintiff. Consequently, because there was neither a pleading of an assignment nor proof of the same, this assignment of error No. 1 must be sustained.

The fifth assignment of error is that the trial court erred in failing and refusing to make written findings of fact and conclusions of law separately stated in accordance with the request of appellant. The court stated that the findings of fact and conclusions of law would be available to defendant but for some reason failed to file the same with the papers in the case as provided by law. This assignment of error must be sustained.

For the reasons stated, the judgment in Appeal No. 23714 must also be reversed and the cause remanded for further proceedings according to law.

Exceptions. Order see journal.

KOVACHY, PJ, SKEEL and HURD, JJ, concur.


author: By CONN, J.

text:
    GANNON, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant,
    Ohio Appeals, Second District, Franklin County.
    No. 5320
    Decided February 10, 1956.
    Russ Bothwell, Curtis H. Porter, Knepper, White, Richards, Miller & Roberts, Dale F. Miller, of Counsel, Columbus, for plaintiff-appellee.
    Chalmers P. Wylie, City Atty., John W. E. Bowen, Asst. City Atty., Columbus, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By CONN, J.

This action was originally begun in the Common Pleas Court, on October 16, 1951. It is an action to recover damages for certain personal injuries alleged to have been sustained by plaintiff when she fell into a hole, located in the parkway between the sidewalk and the paved portion of Kerr Street, in the City of Columbus, about 25 feet south of the intersection of Kerr Street and Warren Street.

In the amended petition, plaintiff alleges she sustained personal injuries as the proximate result of defendant’s permitting said nuisance to exist after notice thereof.

On the first trial, the jury returned a verdict for defendant. A new trial was granted by the trial court. On the second trial, the jury returned a verdict for plaintiff and assessed her damages at $3000.00. Judgment was entered on the verdict. The trial court overruled defendant’s motion to vacate and set aside the verdict and judgment. Thereupon defendant appealed to this Court on questions of law.

Defendant assigns as errors of the trial court:

1. That the verdict and judgment are against the “great weight” of the evidence and contrary to law.

2. Other errors on the face of the record, and also error in overruling defendant’s motion for new trial.

Plaintiff testified that on the night of August 2, 1951, at about 9:00 P. M., she had been riding with her husband in an automobile, which had stopped at the curb on Kerr Street so that plaintiff could alight therefrom, and that, in doing so, she opened the door and stepped in a hole near or adjacent to said curb and sustained an injury to her ankle; that she was taken to the hospital for X-ray examination and treatment, and thereupon returned to her home, where she continued to receive medical treatment.

Plaintiff further testified that she suffered pain and some physical incapacity during all the time following her injury to the time of the second trial.

The medical testimony tended to show that plaintiff sustained a serious injury and that in some measure her physical incapacity would be permanent.

The evidence received at the trial was in conflict as to the dimensions of the hole and also as to the length of time it had existed. The testimony on the latter issue, covered different periods of time, extending from a few weeks to several months. However, a special interrogatory was submitted to it by defendant, as follows:

“Do you find that the defect existed for a sufficient length of time to have come to the city’s attention?”

And in response to which, the jury unanimously answered “Yes.”

It is the conclusion of the Court that there is evidence of probative value, disclosed on the record, tending substantially to support plaintiff’s right to recover damages on the issues joined and that, as the character of the evidence is such that reasonable minds may arrive at different conclusions, it follows that the verdict and judgment are not against the manifest weight of the evidence; and that defendant’s assignment of error No. 1 should not be sustained.

Under the assignment of other errors on the face of the record, defendant claims that the trial court erred, to the prejudice of defendant, in its general charge to the jury, on the issue of notice.

The Court charged the jury that the City must have notice of any defect and that notice may be “either actual or constructive.” Immediately following, the Court said to the jury that when a complaint is called in and made to a proper authority of the City,

“* * * that is actual notice, of course, to be followed up by making needed repairs or remedying whatever the defect is,—but that isn’t the full duty of the City. This is a mandatory duty of the City to keep the streets in repair and free from nuisance and the City can’t sit idly by and wait until somebody makes a complaint, then go out and do something. * *

Defendant contends that the foregoing comment, “You can’t sit idly by and wait until somebody makes a complaint, then go out and do something,” was prejudicial to the defendant. It is the opinion of the Court that, when the above comment is examined in relation to its setting and not taken out of context, the language used by the Court in nowise could be considered prejudicial. Moreover, taking the Court’s charge by the four corners, it appears to be a fair and complete charge on all the issues joined in the case. See Centrello v. Basky et al, 164 Oh St 41.

From what we have said, it follows that defendant’s motion for a new trial was properly overruled by the trial court.

Judgment of the Common Pleas Court affirmed and cause remanded thereto for execution.

MILLER, PJ, HORNBECK, J, concur.


author: By BARTLETT, J.

text:
    DRUGAN, Plaintiff, v. FLALER, Dir. DEPARTMENT OF PUBLIC WORKS, Defendant.
    Common Pleas Court, Franklin County.
    No. 192712.
    Decided November 9, 1956.

      David E. Morgan, Columbus, for plaintiff.
    C. William O’Neill, Atty Geni., Larry H. Snyder, Asst. Atty Geni., Columbus, for defendant.
   OPINION

By BARTLETT, J.

The pleadings and the evidence disclose that the plaintiff has operated since 1933, a stand in the State Office Building under various leases, for the vending of newspapers, confections, tobaccos, etc. On March 7, 1955, plaintiff received a letter from the defendant as Director of Public Works, advising her that her lease would expire on June 30, 1955; and would not be renewed; and on May 24, 1955, this defendant Director returned plaintiff’s check for six months rent, and requested her to vacate the premises, as it was the intention of his department to give the canteen privileges of her stand to the Blind Commission of Ohio. Since then plaintiff has tendered to the clerk of this court her rent to November 1, 1956, as a tender of the amount due to the State of Ohio from her, for the privileges of the stand in question.

Counsel for the defendant admitted there was no complaint concerning the operation of the stand by the plaintiff, and the only reason for requesting that she vacate the premises, was the desire of the defendant and his department to give the privilege of the stand to the benefit of the blind.

This is an action for a declaratory judgment as to the right of plaintiff to remain in said premises and operate said stand, so long as she complies with any and all reasonable regulations of the State and pays her required rent.

In September, 1941, the General Assembly of Ohio enacted the present §5109.11 R. C. (formerly §1369-1 GO, which is as follows:

“Operation of newspaper and tobacco stands in public buildings by the blind.
“Whenever, in the judgment of the head of any department, board, agency, or governing body in charge of any state, county, or municipal building or property, it is desirable and proper to permit the operation of a stand as described in this section, such department head shall grant to the commission for the blind or any other welfare association for the blind, a permit to operate in such building or on such property, under its control, a stand for the vending of newspapers, periodicals, confections, tobacco products, and such other articles as may be approved by such department head. In buildings where a stand now exists, the present operator shall not be removed, but if and when such operator ceases to operate such stand the concession for further operation shall be granted to the commission or any other welfare association for the blind.
“No license fee, rental, or other charge shall be demanded, exacted, required or received for the granting of such permit.”
“The line of demarcation between statutory provisions which are mandatory and those which are directory is not a clear one, and it is therefore difficult to lay down any general rule as to when the provisions of a statute are merely directory, and when mandatory or imperative. In other words, no precise or universal rule can be given. Whether a statute is mandatory or directory does not depend upon its form, but upon the intention of the legislature, to be ascertained from a consideration of the entire act—its nature, its character, its reason, its object, and its subject-matter, as well as the language used.” 37 O. Jur. Statutes, Sec. 38, p. 324.

The use of the word “shall” is usually interpreted to make the provision in which it is contained mandatory. 37 O. Jur. Statutes, Sec. 29, p. 326, and numerous cases cited.

“The state expresses its will by means of statutes enacted by the general assembly.” 37 O. Jur. Statutes, Sec. 2, p. 298.

A statute has been called a rule of action prescribed by the supreme power in a state, which all persons, within the sphere of its operation, are compelled to obey. Milan and R. Pl. Road Co. v. Husted, 3 Oh St 578.

“In the absence of a legislative declaration to the contrary and in the absence of any constitutional restriction, a right conferred by statute is taken away by the repeal of the statute. A fortiori, an express provision in the new statute which makes it applicable to rights previously acquired is followed in the absence of the applicability of any constitutional inhibition.” 37 O. Jur. Statutes, Sec. 189, p. 436.

Counsel for the defendant apparently rest their defense on the theory that the defendant has the right to refuse a renewal of plaintiff’s lease, and since her last lease has expired, the defendant has the right to oust the plaintiff from the premises occupied by her concession stand.

Counsel for the plaintiff depend on the mandate of the statute, supra, that “the present operator shall not be removed,” lease or no lease.

Counsel for the defendant contend that a literal interpretation of the statute would produce a totally absurd result, since the plaintiff would thereby acquire a perpetual lease on the premises. “In determining whether an ambiguous statutory provision is intended to be mandatory or directory, it is sometimes proper to take into consideration the consequences which would result from construing it one way or the other.” 37 O. Jur. Statutes, Sec. 35, p. 332; State, ex rel. Smith v. Barnett, 109 Oh St 246.

However, there appears no ambiguity in the plain words of the statute that “the present operator shall not be removed,” and the result portended by counsel for the defendant does not necessarily follow from the application of the ordinary meaning of the words chosen by the sovereign in formulating the statute in question. If proper consideration is given to the spirit and purpose of this statute, commendable results are attained. One must remember that this statute expresses the will of a benevolent sovereign rather than a harsh despot. While it seeks to serve the worthy cause of aid to the blind, in the same benign spirit it affords protection to those persons, such as the plaintiff, whom the state has already intrusted with the possession of such concession stands, and thus has encouraged the incurring of expenses and assuming of obligations, not only to make these ventures profitable to themselves, but desirable to the public.

The dean of this court, Judge Reynolds, in his opinion overruling the demurrer to the plaintiff’s petition in the instant case, held that if plaintiff’s right in the premises depended upon a lease, it would seem that the statute should have expressly provided “at the expiration of existing lease the concession for further operation shall be granted to the commission.” In other words, plaintiff’s right in the premises does not depend upon a lease, but is a statutory right, bestowed upon her by the General Assembly of Ohio.

“In the absence of a legislative declaration to the contrary and in the absence of any constitutional restriction, a right conferred by statute is taken away by the repeal of the statute.”

State, ex rel. Shafer v. Washington Twp., 24 Oh St 603; 37 O. Jur. Statutes, Sec. 189, p. 436.

In other words, the General Assembly, having conferred on the plaintiff the right to remain in the premises and to operate her stand, may, by subsequent legislation, modify or terminate such right; and consequently, this construction of the statute does not result in a perpetual lease which is not favored by the law, as stated by J. Stewart in the case of Wilgus et al, v. Horvath et al, 162 Oh St 75, 84.

See also Hallock v. Kintzler, Jr., 142 Oh St 287.

Instead of creating a perpetual lease, the right conferred on the plaintiff by the statute, is in the nature of an estate or tenancy by will, to have and to hold at the will of the sovereign state itself, as expressed by legislation enacted by the General Assembly.

“An estate at will is an estate so created as to continue during the will of the parties. It may be created by express grant, or by implication of law; and, generally, whenever a person is let into land by the owner thereof, without the grant of a freehold interest or of a certain term, and not under circumstances which show an intention to create an estate from year to year, * * *, the person so let in has an estate at will.” Robinson’s Elementary Law, Sec. 95, p. 55; 2 Blackstone’s Commentaries, pp. 140-150.

“A tenant at will has no certain indefeasible estate, nothing that can be assigned by him to any other, because the lessor may determine his will, and put him out whenever he pleases.” Say v. Stoddard, 27 Oh St 478; 20 O. Jur. (2d) Estates, Sec. 109, p. 348.

However, this authority to put the plaintiff out rests with the General Assembly.

The mandate of the statute that, “the present operator shall not be removed,” is a direct command to the defendant Director not to interfere with the right of the plaintiff to operate such stand; and, therefore a permanent injunction is hereby allowed the plaintiff, restraining the defendant Director and his successors, from ousting her from the premises or interferring with her operation of said concession stand, so long as plaintiff pays the required rent and complies with any and all reasonable regulations imposed by the State. Entry accordingly with exceptions by counsel for the defendant Director.


author: By THE COURT. By THE COURT.

text:
    CRAFT, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 5022.
    Decided February 8, 1954.
    Jesse G. Dickinson, Edmund B. Paxton, Columbus, for petitioner.
    Hon. C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT.

This is an action in habeas corpus wherein the petitioner is seeking ■his release from the Ohio Penitentiary for the alleged reason that he was never charged with the offense to which he entered a plea of guilty. The indictment reads in part as follows:

“that Percy Craft * * *, did unlawfully, purposely and while in the perpetration of a robbery, kill * *

To this charge a plea of guilty of murder in the second degree was entered and sentence pronounced. The question therefore presented is whether a person charged with murder in the first degree committed while in the perpetration of a robbery may be found guilty of murder in the second degree. It will be noted that the indictment does not charge a malicious killing, which is one of the necessary requirements as defined by §12403 GC, to wit:

“Whoever, purposely and maliciously kills another, except in the manner described in the next three preceding sections is guilty of murder in the second degree and shall be imprisoned in the penitentiary during life.”

In the case of Lindsey v. State, 69 Oh St 233, the Court held that when an intentional killing is proved malice may be presumed. The indictment here charges that the killing was “purposely,” which means intentionally, and it was therefore not necessary to charge that it was malicious. Judge Spear in the cited case says at page 232:

“Now, when it is remembered that the rule in Ohio, is and from the earliest time, as shown by the holdings in The State v. Turner, Wright, 20, and The State v. Town, same vol., 75, down to Davis v. The State, 25 Oh St 369 has been that ‘where the fact of killing is proven, malice is presumed,’ and Weaver v. The State, 24 Oh St 584, that ‘the shooting with intent to kill being established, the law implies malice; and the malice thus implied can only be rebutted by showing circumstances of justification or excuse,’ it would seem that the absence of the word malice from the indictment ought not to render it insufficient as to a charge of murder in the second degree. What necessity, we ask, can there be of incorporating a specific word in an indictment when the full meaning and purpose of such word is conclusively to be inferred from the words which are therein used?”

Decided February 19, 1954.

Similar pronouncements were made in the case of State v. Childers, 133 Oh St 508, and by this Court in State v. Stallings, 82 Oh Ap 337. See also, 21 O. Jur. pp. 39, 60.

The application will be denied.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.

No. 5022.

OPINION

By THE COURT.

This is an application for a rehearing wherein it is urged that one charged with murder in the first degree, committed while in the perpetration of a robbery, may not plead guilty to murder in the second degree; that if this petitioner purposely and maliciously killed another while in the perpetration of a robbery, then under the statute he would be guilty of murder in the first degree and of no less offense. The question here raised has recently been passed upon in the case of State v. Muskus, 158 Oh St 276, the first paragraph of the syllabus of which provides:

“Murder in the first degree in the perpetration of a robbery may include the lesser offenses of murder in the second degree and manslaughter, and where, in the trial of a defendant for murder in the first degree in the perpetration of a robbery, there is substantial evidence tending to support a charge of murder in the second degree or manslaughter, the court should charge the jury on murder in the first degree and on the included lesser offenses. (Bandy v. State, 102 Oh St 384, approved and followed.)”

Further citations should not be necessary.

The application will be denied.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.


text:
    BAUS, Petitioner, v. ALVIS, Warden, Respondent.
    Common Pleas Court, Franklin County.
    No. 196495.
    Decided November 29, 1956.
    James A. Baus, No. 99617, in propria persona.
    C. William O’Neill, Atty. Geni., John W. Shoemaker, Asst. Atty. Geni., for respondent.
   OPINION

By BARTLETT, J.

This is a proceeding in habeas corpus. The petitioner was indicted with two other men on September 15, 1955, on a charge of unlawfully killing Glenn Farmer, a guard in the Lima State Hospital, on the 21st day of July, 1955, while said defendants were prisoners in the custody of the guards of said hospital, contrary to §2901.03 R. C.

The record shows that the defendant Baus, having previously entered a plea of not guilty by reason of insanity, the Court designated two disinterested persons to examine said defendant; a hearing was had on December 19, 1955, upon the insanity of said defendant; and thereupon the Court found the defendant legally sane and the defendant was remanded to jail.

On the same day the defendant came into open court in the custody of the Sheriff and represented by counsel, and in writing withdrew his former plea of not guilty and not guilty by reason of insanity to the indictment, and entered a plea of guilty to second degree murder and waived his right to a trial by jury. Thereupon the Prosecuting Attorney and the Court accepted said plea of guilty to second degree murder, and the Court sentenced the defendant to be imprisoned for life in the Ohio Penitentiary.

The petitioner bases his claim of unlawful imprisonment upon two grounds:

1. Sec. 2901.03 R. C., is a violation of the 14th Amendment to the United States Constitution. Habeas Corpus will not lie to test the constitutionality of a statute in favor of the convict, since the trial court had jurisdiction to determine the question of constitutionality; and the Writ of Habeas Corpus cannot be made a substitute for an appeal. Yutze v. Copelan, 109 Oh St 171.

2. The petitioner asserts that second degree murder is not an included offense in the crime of first degree murder for killing a guard, as defined by §2901.03 R. C.; and since he was sentenced for a crime not included in his indictment, his present commitment is void.

“In all cases of criminal homicide, the crime is graduated, and may be one or the other of the three degrees;”

and the jury

“must determine or ascertain, from the evidence before them, of which of the three degrees of the crime the defendant is guilty as he stands charged in the indictment. * * * Murder by means of poison cannot be made an exception.” Robbins v. State, 8 Oh St 131, 195.
“The current of decision in this state justifies the conclusion that an indictment good as to murder in the first degree embraces, necessarily, the lower grades of homicide, and that when this is the case presented, the jury may, if the facts proven warrant it, acquit of the graver offense and convict of the lower.” (Citing numerous Ohio cases.) Lindsey v. State, 69 Oh St 215, 235.

In the Lindsey case, murder, while attempting to commit a robbery, was not an exception to the rule.

The indictment in the instant case was based on §2901.03 R. C., which in part is as follows:

“No convict or prisoner employed at work or at a place provided by law, in the custody of guards or officers, shall kill one of such guards or officers or inflict injuries upon him which result in death.
“Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life. * *

Sec. 2901.05 R. C., provides:

“No person shall purposely and maliciously kill another. Whoever violates this section, except in the manner described in §§2901.01. 2901.02, 2901.03, and 2901.04 R. C., is guilty of murder in the second dégree and shall be imprisoned for life.”
“Where the defendant is indicted and tried for ‘purposely and wilfully’ killing an officer under §12402-1 GC (now §2901.04 R. C.), and he offers testimony tending to prove that the killing was not done purposely or wilfully, but in a scuffle and unintentionally, it is the duty of the court to charge a lesser degree than murder in the first degree; * * Freeman v. State, 119 Oh St 250.

It may be argued that the indictment in the instant case, and the statute on which it is based, do not use the words “purposely and maliciously,” to describe the killing; and that consequently, murder in the second degree is not an included offense of first degree murder as defined by that statute. A similar argument was advanced in the Lindsey case, supra, but Judge Spear in delivering the opinion of the court on p. 231, says:

“The specific claim is that the word malice in defining the act of killing, is not found in the indictment. This statement is true. It is true, also, that §7217 R. S., provides that in an indictment for murder in the second degree it shall be sufficient to charge that the defendant did purposely and maliciously kill the deceased. This section does not, however, provide that the words stated are indispensable, and are the only words that may be sufficient in an indictment in defining that crime. The section makes it unnecessary ‘to set forth the manner in which, or the means by which, the death was caused,’ but an inference does not follow that the indictment may not set forth the manner or the means by which the death was caused, nor that, if such manner and means, as set forth, necessarily import malice and that the killing was therefore maliciously done, that is not the equivalent of a direct charge that the defendant did maliciously kill. It is held in Robbins v. The State, 8 Oh St 131, that ‘intentional killing by means of administering poison, includes and per se imports malice.’ If the inference follows in a killing by administering poison why not in a killing while committing, or attempting to commit, a robbery, as both offenses are covered by the same section of the statute (§6808 GC), which reads: ‘Whoever purposely and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate, any rape, arson, robbery, or burglary, kills another, is guilty of murder in the first degree and shall be punished by death, unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.’ Evidently the legislative purpose, in enacting this section, where the murder is charged as murder in an attempt to rob, was to cause an averment of that fact to become a substitute for the averment of deliberation and premeditation required to be charged in terms in the usual indictment for murder in the first degree. The indictment does charge in apt words the attempt to rob, and then that the defendant, with others, did unlawfully and purposely discharge their revolver, loaded with gunpowder and a leaden bullet, and by that means of the shooting, strike, penetrate and wound him with the intent to unlawfully and purposely kill and murder him. thereby giving to-him a mortal wound from which he instantly died; and that, by these means, they did unlawfully and purposely kill and murder him. Now, when it is remembered that the rule in Ohio, is and from the earliest time, as shown by the holdings in The State v. Turner, Wright, 20, and The State v. Town, same vol., 75 down to Davis v. The State, 25 Oh St 369, has been that ‘where the fact of killing is proven, malice is to be presumed,’ and Weaver v. The State. 24 Oh St 584, that ‘the shooting with intent to kill being established, the law implies malice; and the malice thus implied can only be rebutted by showing circumstances of justification or excuse,’ it would seem that the absence of the word malice from the indictment ought not to render it insufficient as to a charge of murder in the second degree. What necessity, we ask, can there be of incorporating a specific word in an indictment when the full meaning and purpose of such word is conclusively to be inferred from the words which are therein used?”

“In Ohio, where there are degrees of murder, the presumption of law against a pi’isoner, arising from the fact of killing, would only hold him guilty of murder in the second degree.” State v. Turner, Wright 20.

“It is the law, that if the killing be proved or admitted, a presumption arises therefrom of guilt of murder in the second degree. If the jury * * * were satisfied by the necessary degree of proof that the defendant shot Corry, then that state of the proof standing alone would have been sufficient to have warranted a verdict of guilty of murder in the second degree, unless circumstances of extenuation or justification appeared from the record in its entirety.” Shinkman v. State, 7 Abs 518, 521—(Coxxrt of Appeals 2nd District, sitting in Cuyahoga County. Hornbeck, J.)

“1. In a prosecution for murder in the first degree, where the crime was committed by means of poison, a jury may render a verdict of murder in the second degree, under the provisions of §13692 GC.

“2. Where the jury in the exercise of its discretion returns a verdict of a lesser degree than that charged in the indictment, the defendant can not be heard to complain.” Cowdrey v. State, 11 Oh Ap 291.

Motion for leave to file petition in error overruled, November 11, 1919.

In the foregoing case, Judge Cushing, delivering the opinion of the court on p. 292, says;

“When murder has been committed by means of poison, it seems logically incorrect to find the offender guilty of murder in the second degree. Sec. 13692 GC (now §2945.74 R. C.), provides that when an indictment charges an offense, including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof. These statutory provisions relating to crimes must be construed together. * * *”
“When a jury in the exercise of its discretion returns a verdict of a lesser degree than that charged in the indictment, the prisoner will not be heard to complain.”

We find the same conclusion was reached in the Lindsey case, supra.

The defendant Lindsey was charged with first degree murder while attempting to commit a robbery, and the jury found murder in the second degree. Defense counsel claimed that the verdict could not be sustained because it should have been either murder in the first degree or an acquittal; and that the trial court erred in submitting verdict forms for lesser degrees.

Spear, J., speaking for the court, answered on page 233:

“We see no error in this action of the court prejudicial to the defendant.” (Emphasis ours.)

In the Cowdrey case, supra, Judge Cushing, speaking for the court, on p. 293, says:

“In the absence of a bill of exceptions this court will assume that the trial established a state of facts that would support the verdict and judgment. * * *
“ ‘In such a case, the reviewing court will presume that the judgment was founded on proper proof.’ Sidener v. Hawes, 37 Oh St 532,

By parity of reasoning in a first degree murder case, where a plea of guilty to second degree murder was accepted by the court and sentence pronounced thereon, it will be presumed that there was a proper presentation of facts to the court that would support such sentence and judgment.

This court, therefore, rules that second degree murder is an included offense, where the facts warrant it, in first degree murder as defined by §2901.03 R. C.

The petitioner, having been indicted with two other men, September 15, 1955, on a charge of first degree murder, in the unlawful killing of Glenn Farmer, a guard in the Lima State Hospital, on the 21st day of July, 1955, while said defendants were prisoners in the custody of said guards of said hospital, contrary to §2901.03 R. C.; and thereafter said defendant Baus, the petitioner in the instant case, came into open court represented by counsel, entered a plea of guilty to second degree murder, which plea the court accepted, and then sentenced said defendant Baus to life imprisonment in the Ohio Penitentiary.

This court holds said petitioner cannot complain as to said sentence for life on his plea of guilty to second degree murder; that the petitioner is confined in a legal manner in the Ohio Penitentiary, and, therefore, remands him to the custody of the respondent warden and dismisses the petition herein.

Entry accordingly with exceptions of petitioner.


author: By STEVENS, PJ.

text:
    McINTYRE, Appellee, v. B. F. GOODRICH COMPANY, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4522.
    Decided June 15, 1955.
    Rossetti & Zwick, for appellee.
    Wise, Roetzel, Maxon, Kelly & Andress, for appellant.
   OPINION

By STEVENS, PJ.

This proceeding is an appeal on questions of law from a verdict and judgment of the Court of Common Pleas of Summit County.

In the trial below a verdict was returned by the jury in favor of plaintiff, finding him to be entitled to participate in the Workmen’s Compensation Fund of Ohio, upon which verdict judgment was duly entered. The legal propriety of that judgment is here challenged.

The evidence of record discloses that the claimant became an employee of defendant employer at its Akron plant on December 23, 1945. He was given the position of a helper on a bias machine, moving stock from the machine to a table. While -so engaged, on December 28, 1945, he suffered injury to his right leg and knee.

On June 26, 1946, the employer reported said accident to the Industrial Commission of Ohio, and claimant made application to his employer for compensation and medical service for injuries claimed to have resulted from said accident.

On February 19, 1946, employer reported to the Indusgtrial Commission payment to claimant of $71.19 as compensation for temporary total disability of 3-4/7 weeks—from January 12, 1946, to February 5, 1946. In the interim between 1946 and March 8, 1949, numerous applications were filed by the employee and denied by the Commission.

On March 8, 1949, claimant filed with the Commission an application for modification of award and additional compensation beyond the date of last payment, by reason of his injury of December 28, 1945; and on August 30, 1950, the Commission denied said application, for the reason that “proof of record fails to show claimant has suffered any disability in excess of that for which he has been previously compensated.”

On September 5, 1950, claimant filed an application for a rehearing of his claim.

On September 19, 1950, the Commission entered the following order:

“On this day, to wit, September 19, 1950, this claim came before the Commission and it was ordered that the Commission’s record of its findings herein of August 30, 1950, be corrected to conform to the Commission’s order and intention and made to read as follows, to wit:
“ ‘This day, to wit, August 30, 1950, this claim coming on for further hearing for consideration of the Commission upon an Application for Modification of Award and Additional Compensation Beyond the Date of Last Payment, filed March 8, 1949, by the Claimant herein, together with the other proof of record, upon consideration thereof it is the finding of the Commission that proof of record does not show that the Claimant’s disability was due to or the result of the injury upon which this claim is predicated.
“ ‘It is, therefore, ordered that the Application for Modification of Award and Additional Compensation, filed herein by the Claimant under date of March 8, 1949, be and the same are hereby dismissed.’” (Emphasis ours.)

On September 25, 1950, the Commission entered this order:

“On this day this claim came before the Commission upon an Application for Rehearing filed on September 5, 1950, and in accordance with the provisions of §1465-90 GC of the Workmen’s Compensation Act, and upon consideration thereof the Commission grants the Claimant a rehearing and appoints a Referee to take testimony.”

After the hearing, the Commission, on January 28, 1952, ordered the claim to be dismissed because the claimant was not disabled as the result of an injury sustained in the course of and arising out of employment.

On March 4, 1952, claimant filed his petition on appeal in the Court of Common Pleas of Summit County, Ohio, and thereafter, on June 5, 1952, an amended petition was filed, wherein it was alleged that a rehearing was had upon the denial of his application, filed March 8, 1949, for modification of award and additional compensation beyond date of last payment and that same was disallowed.

To that petition employer filed an answer, setting up the following special defenses:

1. That the Commission was without right or authority to make its order of September 25, 1950.

2. That there was no legal authority for such a rehearing proceeding.

3. That the trial court did not have jurisdiction of the subject matter of the appeal.

Upon trial, the matter was submitted to a jury, which found that claimant was “entitled to compensation according to the Workmen’s Compensation Laws of Ohio.” Judgment was entered upon the verdict as returned by the jury on January 12, 1954. Motions for judgment notwithstanding the verdict, and for a new trial, were filed and overruled.

These errors are assigned by appellant:

1. The Common Pleas Court erred in assuming jurisdiction of the appeal.

2. Error in the admission of evidence.

3. The verdict and judgment are manifestly against the weight of the evidence.

4. Error in refusing to submit appellant’s requested findings of fact Nos. 4, 5, 6, 7 and 8.

5. Error in giving appellee’s special request to charge before argument, and error in the general charge.

6. Error in refusal to direct a final judgment for defendant, and in overruling appellant’s motion for a new trial.

We address ourselves first to the claim of appellant that the Common Pleas Court was without jurisdiction to entertain the appeal from the order of the Industrial Commission.

Sec. 4123.51 R. C., in part, provides:

“The Industrial Commission shall have full power and authority to hear and determine all questions within its jurisdiction, and its decisions thereon are final, except as provided in this section. * * * In all claims for compensation on account of injury, or death resulting therefrom, if the Commission denies the right of the claimant to receive compensation or to continue to receive compensation, the order ol the Commission shall state the grounds on which the claim was denied. If the claim was denied on any of the following grounds:
“(D) The claimant’s disability is not the result of the injury.
“* * * the claimant may, within thirty days after the receipt of notice of such finding of the Commission, file an application with the Commission for a rehearing of his claim * *

Sec. 4123.52 R. C., provides, in part:

“The jurisdiction of the Industrial Commission over each case shall be continuing, and the Commission may make such modification or change with respect to former findings or orders with respect thereto, as in its opinion is justified. * * *
“This section does not deprive the Commission of its continuing jurisdiction to determine the questions raised by any application for modification of award which has been filed with the Commission after June 1, 1932 * *

It seems to us scarcely debatable that, under the provisions of §4123.52 R. C., the Commission had an express statutory grant of authority to modify or change its former finding or order, if, in its opinion, such change was justified.

The change made by its order of September 19, 1950, indicates the Commission’s belief that such change was justified, and there is no showing to the contrary.

We need inquire no further than the order of September 19, 1950, to determine that the dismissal of plaintiff’s application for modification of award and additional compensation beyond the date of last payment was based upon the Commission’s conclusion that “proof of record does not show that the claimant’s disability was due to or the result of the injury upon which this claim is predicated.”

Such a determination falls within exception “D” of §4123.51 R. C., and hence furnishes the predicate for a rehearing. All of the proceedings occurred within the ten-year limitation imposed by §4123.52 R. C. See: State, ex rel. New Idea, Inc., v. Blake, et al., 145 Oh St 209.

The trial court, in passing upon defendant’s objection that it had no jurisdiction to entertain the appeal, was required to examine the orders of the Commission to ascertain whether the order from which the appeal was taken fell within any of the exceptions enumerated in §4123.51 R. C.

It appearing from the record that said order did fall within exception “D” of said section, so as to lay the foundation for a rehearing, and that the Commission, upon rehearing, denied upon a jurisdictional ground the relief which claimant sought, the trial court’s conclusion that it did have jurisdiction to entertain the appeal was not erroneous, nor contrary to law. The Commission’s order was a denial, upon a jurisdictional ground, of the right to participate. Mummert v. Cincinnati & Suburban Bell Telephone Co., 56 Oh Ap 511.

It is next asserted, in assignments of error 2, 3 and 6, that, in the testimony of claimant’s experts, the questions asked of them as to causal relationship between plaintiff’s injury of December 28, 1945, and his subsequent claimed disability, and the answers permitted to be given, were not confined to direct and proximate causal relationship, but to “causal relationship.”

That complaint is conclusively answered by the Supreme Court of Ohio in Fox v. Industrial Comm., and Schiele v. Industrial Comm., 162 Oh St 569, at p. 577, as follows:

“The first medical witness was asked whether there was a causal relationship between the plaintiff’s injury and the heart ailment. The court sustained an objection to this question for the reason that it did not require the witness to answer whether there was a direct or proximate causal relationship. A proffer was made that the witness, if permitted, would answer that T believe there is a causal relationship.'
“The exclusion of this question and answer was error. If admitted, the answer would constitute some evidence of causal relationship, since a proximate causal relationship is a causal relationship.”

There was in this record, however, testimony as to “probable causal relationship,” which indeed has a bearing on the issue of proximate causal relationship, and was proper for the consideration of the jury in determining the issue of proximate causal relationship between the injury and resulting disability. Fox v. Industrial Comm., supra.

We find no prejudicial error as to appellant’s assignments 2, 3 and 6.

It is next contended that the trial court erred when it refused to submit, to the jury, appellant’s requested special interrogatories Nos. 4, 5, 6, 7 and 8.

Interrogatory No. 4 required of the jury an answer as to whether or not claimant’s disability was of such character as to prevent him from doing the kind of work which he had performed prior to his admitted injury.

The answer to that question could not test the propriety of a general verdict for plaintiff.

The fact of disability, subsequent to the period for which plaintiff had been compensated, was the thing sought to be established.

There is no provision in the Workmen’s Compensation law which indicates that, if claimant is able to do the same work which he performed prior to his injury, he may not, by reason thereof, show compensable disability.

“Disability” has been defined in Cleveland Provision Co. v. Hunter, 35 Oh Ap 170, as follows:

“6. ‘Disability,’ within meaning of Workmen’s Compensation Act, is inability to work with same degree of ease and competency as before injury irrespective of fact of compensation payments * *

Whether claimant could or could not perform the “same kind of duties that he was performing on December 28, 1945,” was a matter of no consequence in a determination of whether or not he was disabled subsequent to the date of the last payment of compensation to him.

The requested finding was properly refused.

Interrogatory No. 5 read:

“If your answer to Question No. 1 is ‘Yes,’ was plaintiff disabled as a direct and proximate result of any new and changed conditions arising subsequent to February 5, 1946?”

The question asked was one which it was the sole province of the Industrial Commission to answer, and, accordingly, was not properly submissible to the jury.

The only question for determination by the jury was whether or not, as a direct and proximate result of the injury of December 28, 1945, plaintiff suffered any disability after January 25, 1946, that being the last day for which he was compensated.

Interrogatories 6 and 7, being based upon an answer to No. 5, were properly refused, when No. 5 was refused.

Interrogatory No. 8 inquired of the jury as to what percentage of the disability of claimant was the proximate result of the injury sustained on December 28, 1945.

This interrogatory was also properly refused because the inquiry therein made was one solely for the determination of the Industrial Commission and not of the jury. Fisher Body Co. v. Cheflo, 122 Oh St 142, paragraph 1 of syllabus.

We find no prejudicial error in any of the respects charged with reference to plaintiff’s special instructions before argument, or in the general charge of the court. In our opinion, substantial justice has been accomplished in this case, and the judgment will accordingly be affirmed.

Affirmed.

HUNSICKER and DOYLE, JJ, concur.