author: By McALLISTER, Circuit Judge.

text:
    CLARK v. BALTIMORE & O. RD. CO.
    United States Court of Appeals, Sixth Circuit.
    No. 11437.
    Decided April 10, 1952.
    Martson G. Bergmann and Robert H. Dawson (Martson G. Bergmann, on the brief), Cleveland, for appellant.
    Dwight B. Buss (William F. Martseller, Dwight B. Buss, on the brief; Baker, Hostetler & Patterson, counsel), Cleveland, for appellee.
    Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
   OPINION

By McALLISTER, Circuit Judge.

This is an appeal from a directed verdict of no cause of action in a personal injury suit arising out of a collision between a Baltimore & Ohio Railroad locomotive and an automobile at a grade crossing in the Village of Middleburg Heights, Ohio.

On March 24, 1948, Edna Clark, a girl thirteen years old, for whom this suit was brought, her younger sister, and another girl of about the same age, were walking along a main traveled highway in the village at about four o’clock in the afternoon, when they were offered a ride by Oliver J. Proteau, who was driving by in his automobile. Proteau was known by the children, and the girls got into the back seat of the car. Proteau, alone in the front seat, started down the highway. He lived in the vicinity, residing between 1,000 and 2,000 feet from the intersection of the railroad and the highway. As he progressed, he drove at a rate of speed of at least sixty miles an hour — perhaps seventy — down toward the railroad crossing. He successively overtook two other automobiles, passing them on the left-hand side of the yellow line in the center of the highway on the approach to the tracks, in violation of the law forbidding such passing on the approach to the crossing. At a point 470 feet from the crossing, Proteau had driven over to the left-hand side of the highway to pass the first car, which he overtook at a point later fixed at 415 feet from the crossing. At this point, there was another car ahead about 200 feet, slowing up for the crossing, and Proteau passed this car on the wrong side of the road. Apparently an instant after Proteau passed this second car, he became aware that the locomotive and train were approaching the crossing. He locked his brakes and from the evidence of the tire marks on the highway, skidded 110 feet, passing, in the course of the skid, back to the right-hand side of the highway. He crashed into the side of the locomotive as it passed over the intersection with great force, the impact killing Proteau and causing serious injuries to the three girls in the rear seat. The train had been coming down the track approaching the crossing at a speed of about thirty miles an hour, and was brought to a stop after the collision with its third car on the roadway.

There is no issue as to the negligence of Proteau. But appellant claims that the railroad was also guilty of negligence contributing to the accident; and, since it is conceded that the negligence of Proteau is not imputable to appellant, she contends that the court was in error in directing a verdict of no cause of action, and that the question of the railroad’s negligence presented an issue of fact for the jury.

The alleged negligence of the railroad is based upon the claim that the accident was due to its maintenance of a dangerous crossing in violation of the law of the State of Ohio; that, further, the engineer of the locomotive did not blow the whistle or ring the bell on his approach to the crossing, as required by state law; that this claimed negligence contributed to the accident; that the evidence presented a question of fact for the jury; and that the district court was in error, as a matter of law, in directing a verdict of no cause of action.

From an examination of the record, it is obvious that appellant has much to overcome in order to sustain the contention that the claimed failure of the railroad company to give warning signals, or the claim of maintaining an “extra-hazardous crossing” contributed to the collision. Proteau. as has been stated, lived near the crossing. He was in the habit of driving his car on the highway in question, and certainly knew of the intersection of the railroad tracks at that point better than most of the people who drove over it. Moreover, on each side of the crossing, facing the traveler on his right as he approached', were the large, familiar railroad crossarm warning signs that could be seen 1,200 feet away. On the right-hand side of the highway, 400 feet from the crossing, was the usual highway disk sign warning travelers that they were approaching a railroad crossing. Almost opposite this sign was painted on the highway a large cross with a railroad sign, “RR,” to warn oncoming automobile .traffic. Down the center of this straight highway was a yellow line, warning vehicles not to pass.

In the face of the foregoing, Proteau, who must be presumed to have known the crossing, approached it at a speed of between sixty and seventy miles per hour, passing the other cars on the wrong side of the yellow warning line, disregarding his own knowledge of the crossing, as well as ignoring the three different warning signs along the highway. When he applied his brakes, leaving tire marks on the highway for a distance of more than 100 feet, he skidded into the side of the locomotive with the sound of an explosion and an impact that wrecked his car.

The law of the State of Ohio, upon which appellant relies, which requires extra precautions to bé taken by a railroad for the safety of travelers at extra-hazardous, or peculiarly dangerous grade crossings, was not pleaded in the complaint, and it is only by language in certain of the cases cited in the briefs on appeal that we are made aware, specifically, that such a statute exists. The district court held that there was no evidence that the statutory precautions or provisions which are incumbent on the railroad to take were not complied with; that, on the contrary, the testimony was to the effect that all such precautions were taken; that because of the failure to introduce evidence to the effect that the crossing was of an extra-hazardous nature, there was no proof of negligence in this respect for which the railroad might be charged; and that there was no evidence in the case that the crossing wa's of an extra-hazardous nature.

Appellant submits that a traveler could see only 100 feet down the track from a point 121 feet from the crossing; 200 feet from a point 61 feet from the crossing; and that a clear view of 1,200 feet down the track in the direction from which the locomotive was approaching could only be had from a point on the highway 35 feet from the track because of the obstruction of a building. Because of these circumstances, counsel for appellant submits that the question as to whether the crossing was extra-hazardous should have been submitted to a jury.

It may, however, be said that the obstruction to Proteau’s view down the track had nothing to do with this accident. The skid marks of his tires on the highway show that he knew of the oncoming train at least 110 feet from the crossing, and since the Ohio courts hold that the reaction time of a driver in applying his brakes when approaching a railroad crossing, as a matter of judicial notice, is from % of a second to one second, an additional 66 feet is to be added to the distance which Proteau would travel during % of a second, at the speed at which he was driving. He, therefore, knew of the approaching train when he was at a point at least 176 feet from the crossing, which, as far as this case is concerned, is the same as though he had seen the train approaching when he was that distance from the crossing.

In Carter v. Pennsylvania Railroad Co., 6 Cir., 172 F. 2d 521, this court held that, under Ohio law, where a clear view of the railroad track could be had at a distance of 2614 feet from it, the failure of a driver of an automobile who was familiar with the crossing to look and listen for any approaching train before crossing was negligence; and since it was clear that the driver’s attempt to make the crossing without stopping was the negligence which caused the accident, there was no contributory negligence on the part of the railroad; and a verdict of no cause of action was properly directed against the plaintiff, who had been a guest in the automobile and to whom no negligence was imputed. In Lacey v. New York Central Railroad Co., 1948, 85 N. E. 2d 540, 541, the Court of Common Pleas of Montgomery County, Ohio, held in order to raise the question of a railroad’s negligence in failing to furnish additional safeguards at an extra-hazardous crossing, “Not only must the pleading contain the allegation of ‘peculiarly hazardous,’ but the facts which make it so must be pleaded”; and under the doctrine of Erie Railroad Co. v., Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, and West et al. v. American Telephone & Telegraph Co., 311 U. S. 223, 61 S. Ct. 179, 85 L. Ed. 139, we are constrained to follow such adjudication as the Ohio law here controlling on the subject. It is, moreover, to be said that the crossing-in question was in open country, although it was within the limits of the village; and this fact differentiates the case from those referred to by appellant in which extra-hazardous crossings consisted of many tracks in closely built-up parts of metropolitan cities where a view of oncoming trains could not be had at a distance of more than six or eight feet from the crossings.

Under the foregoing authorities, we are of the opinion that the district court was not in error in refusing to submit to the jury as a question of fact whether appellee was guilty of negligence in maintaining a grade crossing of an extra-hazardous nature, without additional warnings or safeguards for the public.

We come, then, to appellant’s contention that there was evidence to submit to the jury for its determination whether the railroad was guilty of contributory negligence because of the failure of the engineer to blow the whistle and ring the bell as required by law.

The evidence relied upon by appellant to show negligence on the part of the railroad company in failing to cause the whistle to be blown and the bell to be rung when the locomotive was approaching the crossing is as follows: One witness for appellant testified: “I couldn’t say I heard a whistle blown.” When asked if she heard a bell ring, just before the accident, she replied: “No, I didn’t hear the bell ring.” This witness was the driver of one of the cars proceeding toward the crossing which Proteau passed just before the collision. She had seen the smoke of the engine as it came down the track when she was 1,000 feet from the crossing. As she came to a stop, she watched the Proteau car speeding toward the tracks and stated that she was stunned because she thought: “I bet that man doesn’t see the train.” She was not asked whether she was listening to the bell of the locomotive just before the crash. Another witness for appellant was a boy who was thirteen years old at the time of the accident, and who was delivering papers along the highway that afternoon. When the Proteau car came by, overtaking the other two cars, the boy was at a point about 500 feet from the crossing. As he delivered a paper to the house at that location, he heard the whistle of the locomotive and knew that the train was approaching the crossing. He was asked whether, as Proteau turned to the left to pass the other cars, he had heard a whistle blown “at that time,” and he answered: “No, it didn’t.” To the question, “Did a bell ring at that time?” he replied: “No.” These questions were directed to an attempt to prove that although the whistle may have been blown before, it had not been blown within eighty rods of the crossing, as required by law. However, the boy testified that since he knew a train was coming toward the crossing and Proteau was driving toward it at such a high rate of speed, he expected a wreck and was, therefore, excited, and that after hearing the first whistle, he wasn’t listening for any further whistle or ringing of the bell. On cross-examination, three years after the accident, he testified that he couldn’t tell whether a whistle was blown after Proteau passed him because of his excitement in knowing that an accident was going to happen. Appellant Edna Clark, the girl who was injured in the wreck, was asked to explain what took place just before the accident, from the place Proteau passed the other cars 500 feet from the crossing Her testimony, upon which counsel for appellant so greatly relies, was that she was riding in the back seat of the automobile, talking to the other girls, when suddenly “this big black thing, the train, we were right on top of it.” She was asked: “did a whistle blow at that time?” And she answered: “No, it didn’t,” and gave the same reply to a question whether a bell had rung at that time. On cross-examination, she was asked:

“Q. As you were down there by the Scholz driveway (500 feet from the crossing) * * * did you know you were approaching a railroad crossing? * * "A. I wasn’t paying any attention

“Q. And there were three of you girls in the back seat * * *? A. Yes, there was.

“Q. You three girls were talking? A. Yes, we were. We were talking.

“Q. So you werén’t paying any attention until you saw the engine, is that right? A. I think so, yes.

“Q. So you weren’t listening for any whistle or bell? A. I mean I wasn’t talking. I think if there was a whistle I would have probably heard it. We weren’t talking and laughing that loud. I could have heard it.

“Q. But you weren’t listening for one? A. No, I wasn’t.

“Q. You weren’t looking for one? A. No, I wasn’t.

“Q. And you didn’t realize you were approaching a railroad crossing? A. No, sir.

“Q. That whistle could have sounded but due to the radio and you talking and not paying any attention and you not heard it, isn’t that correct? A. Well, no, I think if it would have blown I would have heard it because the radio wasn’t playing that loud and we weren’t talking and laughing that loud.

“Q. Edna, on the 20th of May, 1948, do you recall talking to one of the claim agents of the railroad company when there was a court reporter * * * taking it down? A. Yes.

“Q. And to refresh your recollection, Edna, didn’t he say this: ‘You state you did not hear an engine whistle being sounded,’ and didn’t you answer: ‘No, I didn’t?’ A. That’s right.

“Q. You remember that, don’t you? A. Yes.

“Q. And didn’t he ask you: ‘Could it have been sounded but you just didn’t hear it due to the radio playing?’ and didn’t you answer: ‘Yes’? A. I don’t know. I can’t remember.

“Q. You can’t remember whether that was true or not? A. 1 don’t know.”

The foregoing constituted only negative testimony. The district court held that the only testimony in support of appellant’s contention of negligence because of failure to blow the whistle and ring the bell was entirely negative in character, as contrasted to appellee’s overwhelming evidence to the effect that the whistle was blown and the bell rung. No witness in support of appellant’s claim testified that he was listening for any warning signals at any time prior to the accident. Where a witness testifies that warning signals were not given or that he did not hear such warning signals, and it appears that the witness was not listening to hear such signals or not paying attention as to whether they were given or not, such testimony is negative, and in the face of substantial uncontradicted testimony that the signals were given, the evidence is not sufficient to present to the jury the question as to whether such signals were given. Carter v. Pennsylvania Railroad Co., 6 Cir., 172 F. 2d 521; Strider v. Pennsylvania Railroad Co., 6 Cir., 60 F. 2d 237; The Continental Baking Co. v. Pennsylvania Railroad Co., 87 Oh Ap 505, 43 O. O. 306, 96 N. E. 2d 258; Toledo & Indiana Railroad Co. v. Yhalkee, 51 Oh Ap 378, 5 O. O. 299, 1 N. E. 2d 163. There was. substantial uncontradicted testimony that the signals were given, as required by law. Under the authorities above cited, the evidence of claimed negligence on the part of appellee in failing to give the warning signals was not sufficient to take the case to the jury.

In accordance with the foregoing, the judgment of the district court is affirmed.

      . Ohio General Code, Section 8853:
      “Every company shall attach to each locomotive engine passing upon its road, a bell of the ordinary size in use on such engines, and a steam or compressed air whistle. When an engine in motion and approaching a turnpike, highway or town road crossing or private crossing where the view of such crossing is obstructed by embankment, trees, curve or other obstruction to view, upon the same line therewith, and in like manner where the road crosses any other traveled place by bridge or otherwise, the engineer or person in charge thereof, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from such crossing, and ring such bell continuously until the engine passes the crossing.”


source: Caselaw Access Project

author: By NICOLA, J:

license: Public Domain

text:
    STATE, ex rel. RAYDEL, Complainant-Plaintiff, v. RAIBLE, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 631251.
    Decided February 3, 1953.

      Sindell & Sindell, Corrigan, McMahon & Corrigan, Cleveland, for complainant-plaintiff.
    Wm. J. Kraus, Edw. Lurie, Cleveland, for defendant.
   OPINION

By NICOLA, J:

The action against the defendant was brought under favor of §8006-1 et seq GC. The complainant, Alice E. Raydel, an unmarried woman, alleged in her complaint that the defendant was the father of a child born to her on December 28th, 1949. The jury found the defendant guilty of being the putative father of said minor child, and this Court entered judgment on said verdict. The further duties of the Court are set forth in §8006-17 GC as follows:

“* * * if the child is alive the Court shall adjudge that he (the defendant) pay to the complainant such sum as the Court may find to be necessary for her support, maintenance, and necessary expenses caused by pregnancy and childbirth, together with costs of prosecution, and that a reasonable weekly sum be paid the complainant for support and maintenance of the child up to 18 years of age.”

Pursuant to this statutory command, after the verdict was returned and judgment entered thereon, the Court sought at once to adjudicate the two matters called for, but the hearing for good cause was continued to January 26, 1953, at which time the testimony of the parties was taken. In the light of said testimony the Court now proceeds to solve as best he can the two matters involved.

I. What shall complainant be allowed for her support, maintenance and necessary expenses caused by pregnancy and childbirth?

At the hearing the complainant herself could actually itemize her outlay for the above purposes at about $846. No mention was made by complainant in her itemization of expenses incurred in being taken by automobile to the doctors during pregnancy, to the hospital before, and from the hospital after the child was born. Also she must have expended something' for help and assistance immediately before the birth of her son. However, these facts were developed in the trial of the bastardy action and will be taken into consideration in arriving at the amount to be fixed. We, therefore deem it just that she be allowed for her support, maintenance and expenses the sum of $1,000. Judgment will be entered in that sum.

II. Coming to a consideration of the second phase of the statutory provision — the adjudication of a reasonable weekly sum to the complainant for the “support and maintenance” of the child up to the age of 18 years — we are confronted with two legal questions, as follows:

(a) When does the support and maintenance of the child commence, and (b) does the statute permit the allowance of attorney fees for complainant’s counsel?

We will consider the above questions in the order propounded.

(a) The defendant asserts that under the ruling of Griffin v. Zimmerman, 67 Oh Ap 273, no award may be made for support of an illegitimate child until the accused is found guilty of being the putative father. The case cited so holds and proceeds- on the theory that this provision of the Code is in derrogation of Common Law and must be strictly construed. Then, construing the Code strictly the Court decides that support of the child starts from the date of the adjudication of paternity.

The last decision of lower courts on the subject is by the Common Pleas Court of Hamilton County in Davis v. Brown, 60 Abs 183, decided April 1, 1951. This trial court follows the Zimmerman case first above cited.

On the other hand the complainant points to the former cases of Willis v. Wilson, 83 Oh Ap 311, and Gill v. Volz, 85 Oh Ap 207, which hold the contrary — that the putative father after conviction must pay for the support of the child from its birth.

Judge Hornbeck in the Gill v. Volz case says:

“The whole trend of the legislation is to lend assistance of the law to the enforcement against the father as his obligation to support and maintain his child, and it is not probable, and to us it seems a strained construction of the statute to hold, that it was intended this obligation shall not begin from the date of the birth of the child.”

That the opinion of the eminent jurist is sound is, in our judgment supported by the latter part of the same statute which is quoted above.

“In the event said child is not born alive, or is not living at the time of said plea or finding of guilty, the court shall order the accused to pay * * * including therein a reasonable amount for maintenance of said child until its death, * * *.” The legislative intent must be gathered from the entire statute. Surely our solons did not mean that if the child died a week before the finding, the complainant would be paid for the child’s support during its lifetime, but if he lived, the complainant could not recover for his support during the same period of time. The rule of reason runs through all statutes as Judge Taft of the Supreme Court of the United States once remarked, and here it compels us to conclude that payment for the child’s support starts from the time of its birth.

There being a difference in the views of the Courts of Appeals, the Gill v. Volz case supra, was certified to the Supreme Court of Ohio for its decision. The errors involved in the case before the Supreme Court were, first, whether the verdict of the jury could be returned by nine members thereof, or whether it should be a unanimous one: second, — whether the court erred in entering judgment for the complaining mother in a given sum without hearing any evidence, and third, whether the court erred in ordering payment of support for the child from the date of his birth.

The syllabus of the Supreme Court, found in Gill v. Volz, 156 Oh St, 60, decided in July, 1951, refers only to the first ground of error, and settles the law in Ohio that such a case is civil in its nature and therefore, a verdict signed by nine of the jurors is sufficient.

The syllabus does not refer to the other two grounds but Judge Hart in the concluding paragraph of his oninion says.—

“On examination we do not find any reversible error as to the other assignments by the accused, therefore the judgment of the Court of Appeals is affirmed.”

It is clear to us that the Supreme Court considered all the assignments of error and from the language of Judge Hart the judgment of the Court of Appeals stands as the judgment of the Supreme Court. Consequently all doubts are removed from the conclusion that the time for which the support of the child starts is from the day of its birth.

(2) May attorney fees be included in the award to the complainant?

Counsel for the complainant have expended a great deal of time in the preparation and trial of this case, as well as in solving the preliminary questions that arose. Their diligent persistent efforts were crowned by the successful conclusion of the case before the jury. There is no question that counsel should be paid handsomely for their efforts, but may we order the defendant in this case to pay them under the laws of Ohio? “Support and maintenance” have never been interpreted to include attorney fees nor interpreted to exclude them. This is a new question in Ohio under this part of the statute.

Counsel for the complainant argue that in this enlightened age it is unjust to so narrowly construe our statute on the subject as to exclude compensation for those who have brought about justice to a little child. Fallow ground lies before us and we should be bold to furrow deep in the law and provide a precedent for the compensation of lawyers as an includable item under the words “support and maintenance of the child until he arrives at the age of 18 years.”

They claim that in California the courts have declared that attorney fees may be granted under a statute containing the same words as used in §8006-17 GC; California having set the pace we should follow in its wake.

Examining the California decisions we find that the wording of Section 186A as enacted in 1913 contains the words “support and education.”

Basically they mean the same as the language used in our statute. Under its statute, the California Supreme Court permitted recovery of attorney fees in Arias v. Kalensnikoff, 74 Pac. 2d, 1043-7, on the authority of Paxton v. Paxton, 89 Pac. 1083; 150 Cal. 667. Upon examining this latter case we And that it is a decision interpreting Section 206 of the then code of said state which provides “it is the duty of the father and mother and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability.

“* * * Suit was brought by John A. Paxton, an adult person, against his father and mother. He alleged he was blind, poor and unable to support himself, and further that he was unable to proceed with the litigation unless paid certain sums of money pendente lite for his support, counsel fees, etc. After commencement of the action the court entered an order that the defendants on a day named show cause why they should not pay said sums pendente lite. * *

Under the above statute (206) after a hearing the trial court ordered defendants to pay plaintiff pendente lite $50 per month for maintenance, $10 for costs and $150 for counsel fees. The defendants demurred to the complaint and alleged that the Court had no jurisdiction to entertain the motion and suit. In said case the Supreme Court held that Section 206 granted a right to the plaintiff but provided no remedy, — no way of enforcing it. It reasoned quite logically that if the statutes granted the plaintiff a right, it did not leave him without a remedy, even though no remedy was specifically set forth in said section or any other section of their code. Therefore the court deemed that it had jurisdiction to enforce the provisions of Section 206 and if it had such jurisdiction it had “power to make all orders necessary for that purpose, including orders for suit money, counsel fees and maintenance pendente lite.”

It was stated by the same court in Shallman v. Haas, 164 Pac. 336, that it could not grant support and expenses pending appeal under the law of 1913. After the amendment of 1939 to said Section 196A it could make such an order since the amendment referred to and made a part thereof Section 137 and 137.5 of the code. Section 137.5 contains a specific provision for allowance of attorney fees for prosecuting the action.

Other cases, notably Andrade v. Newhouse, 128 Pac. 2d 927 (1942), seem to indicate that attorney fees were allowable before the code provisions of 1913 were enacted, nevertheless steps were taken to fully settle the question through legisla-, tive action by amending Sec. 196A in 1939.

In Ohio a remedy is provided for payment of the amount allowable for the child’s support and maintenance. If the award is not paid it may be reduced to a judgment and payment of said judgment be enforced as in any other case. Also contempt proceedings by the criminal provisions are still available to the complainant to compel the putative father to support his child. In any event we are compelled to closely examine our own statutes and decisions to reach a proper conclusion.

Sec. 8006-17 GC referred to above, insofar as it relates to the payment to the complainant after adjudication of paternity is concerned, may be divided as follows:

If the child is alive the court:—

(1) Shall adjudge that he (the defendant) pay to the complainant such sum as the court may find necessary for her support, maintenance, and necessary expenses caused by pregnancy and childbirth, together with costs of prosecution; and

(2) that a reasonable weekly sum be paid complainant for support and maintenance of the child up to 18 year of age.

It will be observed that the court shall adjudge to the complainant support for some time before the birth (during pregnancy) and for some time after the birth of said child. In the second part of that statute the court must adjudge her weekly a reasonable sum for support of said child for a certain time after its birth up to 18 years of age. Are not the two parts of the above provision of the statute parallel as to wording except that one limits the support of the mother to a relatively short period of time, that is during pregnancy and childbirth, while the other limits support of the child for a long period, to-wit, — from childbirth up to 18 years of age?

The wording is exactly the same and the question is whether we must interpret the parallel wording in the statute in the same manner or in a different manner.

We have an interpretation of the first part of the above sentence in the case of State ex rel., Beebe v. Cowley, 116 Oh St, 377; at the time this decision was handed down a weekly sum for the support of the child was not included in the statute, so that the court had to interpret the meaning of “support, maintenance, necessary expenses, and cost of prosecution” allowable to the complainant in the first section of the above statute.

The court said:

“Syl. 1. A sum which includes attorney fees for the prosecution of a bastardy proceedings * * * cannot be awarded to the plaintiff under the provisions of §12123 GC. (Provision same as in §8006-17 GC.)

The Supreme Court in the above case as well as counsel in the instant case made no claim that attorney fees were included in the words “support and maintenance and expenses of pregnancy and childbirth.” The court then adverted only to “costs of prosecution” and decided that the General Code does not authorize the trial court to charge the defendant with attorney fees as such “cost of prosecution.” If the words “support and maintenance” of the complainant could have possibly borne the interpretation that attorney fees were includable, would the court not have said so? Since the court did not include attorney fees under the same words that are now also contained in the second part of the sentence, may we do so in this case? All of counsel know that under the Common Law illegitimate children had no claim against their putative father.’ Statutes for ameliorating the condition of such children in derogation of the Common Law, therefore, must be construed strictly. The statutory history and the above conclusion have been repeatedly pronounced by our courts so that we need not repeat the same in this opinion.

We must keep in mind that no matter how bold the trial court may be, it is not within his province by casuistry to argue himself into a wording clearly contrary to the apparent decision of the Supreme Court of Ohio. We would like to see the attorneys paid but the Court cannot legislate for that purpose. We must declare the law as we see it and consequently we are constrained to the conclusion that attorney fees may not be allowed in this case.

Having resolved these two perplexing legal questions at least to our own satisfaction we come to the question of the allowance to the complainant of a sum for the support and maintenance of the child until he is 18 years of age. Here we are also confronted with perplexing questions.

What measuring rod shall we use in fixing a reasonable sum weekly for his support and maintenance?

Both parties being present at the hearing, the Court at its own instance ordered defendant to take the stand and give testimony under oath of his financial worth, over the objection of his counsel. We also asked his income for the year 1952. Then being satisfied from the testimony under oath that the defendant was worth more than one million dollars, and that he could carry out any order we might issue, the court felt that it was useless to permit plaintiff’s counsel to compel the defendant to disclose the intimate affairs of his business and business connections, the value of his house, his spending for its upkeep, his real estate, his holdings in various companies in the United States and foreign countries. This might do the defendant harm without gaining any advantage for the complainant. However, the complainant was permitted to make proffer of all testimony she sought to solicit in order to save her exceptions.

We have before us a little child 37 months old who was brought into the world by the voluntary action of both the complainant and the defendant. We are not characterizing their past conduct; we are certain, however, that both parents should provide the best that each can give to this boy so that when he arrives at the age of 18 and payments for his support cease, he will be strong in body and mind and spirit, so that he will be able to face the world. The mother should dedicate herself to his upbringing while the putative father should provide all the financial help necessary to properly maintain him. That the boy should not live in penury goes without saying; neither should he live in luxury, for that would beget habits of idleness, softness and general disregard for the things that make for character.

To the end of making a man of this boy in 18 years, we have on the one hand a woman whose upbringing was in an humble home presided over by honest, hard working parents. We have seen the mother and the brothers as they testified in this case. We also know from what was shown during the trial and from the testimony of the defendant himself given during this last hearing, that his financial status is comparatively quite high. If there is a proper combination of dedication on her part to raise these children properly and sufficient financial assistance by the defendant to that end, then we may be reasonably certain that the child will become a good strong young man and a good citizen.

We can compel the defendant by our order to contribute the proper financial help but the success of this venture in making a man out of the boy will depend on the mother, over whose activities this Court may have little or no control. It will depend upon her in the final analysis whether a man shall be raised by the time the child arrives at the age of 18 and ceases to receive support from his putative father.

Applying our views to the past support and maintenance of the child, we are concerned only with awarding the complainant the sum that she has actually expended for the 37 months that she has kept this child. We must take into consideration that she has had another child, by the defendant, who is approximately 2 years older than he, and that a settlement was made for said first child’s support, though we do not legally know what that settlement was. The children of the defendant surely ought to be raised together in a home and not in an institution. Therefore the defendant should make it possible for the complainant to occupy a home for her boys and he should provide the means for keeping up a home including support of the mother, if she takes care of the boys, otherwise a nurse would have to be hired.

We therefore are concerned with what the mother has spent to keep up the home during the past 37 months, and then divide the cost thereof in two, one half to be borne by the first child and one’ half to be borne by the defendant for the second child with whom we are directly concerned.

The complainant and her two children and her brother have been living in a home on Invermere Road, Cleveland. This home is in a good neighborhood being east of Lee Road and two streets south of Scottsdale, near the Shaker Heights line. We have some evidence as to the cost of keeping this home during the said 37 months. The complainant herself stated that she spent $500 per month to keep the family of four, but could not fully justify that sum in her itemization. We do know that she lives in a $15,500 home and we should take this into consideration in fixing the amount due her. However, in doing so we must keep in mind that she was not quite fair with the Court. She stated that she drove her automobile since the latter part of June, 1950, more than 55,000 miles for the children, her reason being that the distance to her mother’s home is 20 miles while the distance to her friend’s home is about 10 miles, so that if she made a trip to both places it would be 60 miles. If you calculate 60 miles per day for 2 Vs years during which time she owned the automobile, she would have to make a trip to her mother’s house and to her friend’s house every day during that time in order to arrive at 55,000 miles.

This to our mind is ridiculous. Certainly the child should visit his grandmother, possibly once or maybe twice a week. Whether a baby should be taken to a friend’s home is doubtful, but he should not be taken there very often. She also stated that the child would need psychiatric treatment because of the situation in which it found itself. I do not know where she got such information or learned of such terms. The only thing that a little child of 3 years of age needs is good, substantial food, proper care and the love that the mother only can give. The complainant, in figuring her costs since the child was born, has made the figures just a little high.

Figuring the cost of rent of such a home at about $1200 (about 8% return on the investment), food at $1800, medication at $200, automobile at $250, clothes at $800, makes a total of $4250, or $2125 for each child; adding $275 for washing, dry cleaning and incidentals, including extra medical care, makes a total of $2400, which the defendant should pay per year, or a total of $7400.00 for the 37 months to January 28, 1953. This may seem high to some and low to others, but we have taken into consideration the situation as it was unfolded before us in reaching the above figure.

Judgment will be entered for the complainant for the above amount.

We believe that up to the period when the boy becomes 12 years of age the complainant should receive the sum of $50 per week for his support and maintenance. For the period between 12 and 18 years of age, the complainant should receive the sum of $60 per week. A proper order will be made for the payment of above sum weekly.

Ijn passing it must be noted that the defendant sent his girls to private schools, to-wit: Hathaway Brown and Laurel in the city of Cleveland. These schools rate very high. Equally high is the rating of University School if it is desired to send the boys to a private school. The cost of board, lodging and tuition at University School is well known to be $1500 for a period of 9 months which is for 7 days per week board and lodging, and less if the student only stays 5 school days per week. We have considered that the boy when he becomes 12, 14 or 16 years of age will need spending money and more costly clothes and so we have graduated the weekly payments to take care of the situation. The sum allowed is sufficient to send the boy to summer camp in Canada if it should be so desired. Thus the complainant will have enough to properly rear him to become a young man of character.

We believe our finding is thoroughly supported by the case of Berry v. Chaplin, 169 Pac. 2d 453, where an allowance of $75.00 per week for the maintenance of Chaplin’s child was entered. There the rent was $150.00 per month and there was only one child’s support to pay for it. There it was “conceded that unless a nurse should be engaged the child must be eared for by either the mother or the grandmother. The maintenance of one of them is a necessary part of the support of the child.”

But complainant’s counsel cry that the child may be stricken with some dread disease like polio. We have included a very liberal allowance for medical attendance. If a very serious malady attacks the child, recourse may be had to this Court for its jurisdiction is continuing as it relates to illegitimate children and the present order is subject to modification if the circumstances change. Nash v. Nash, 77 Oh Ap 155; Nivin v. Tomblin, 82 Oh Ap 376.

A journal entry may be drawn accordingly.


author: By METCALF, J:

text:
    BENES, Plaintiff-Appellant, v. HICKOX BUILDING CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22088.
    Decided October 20, 1952.
    John J. Tetlow, Wm. J. Tetlow, Cleveland, for plaintiff-appellant.
    Krueger, Gorman & Davis, Mooney, Hahn, Loeser, Keough & Freedheim, Cleveland, for defendant-appellee.
    (HUNSICKER, PJ, DOYLE, J, of the 9th District; METCALF, J, of the 4th District, sitting by designation in the 8th District.)
   OPINION

By METCALF, J:

Plaintiff, a building contractor, brought suit against the defendant for loss of profits claimed to have been occasioned by the defendant’s alleged wrongful repudiation of a building contract.

The defendant is the owner of premises located at the corner of Euclid Avenue and East 9th Street in the City of Cleveland upon which formerly was located the Hiekox Building. On March 22, 1946, and while the Hiekox Building was being razed to permit the construction of a commercial building especially adapted for the use and occupancy of Bond Stores, Inc., hereinafter referred to as “Bond” as lessee of the defendant under a long term lease, the parties to this action entered into a written contract for the construction of the building in question. The contract between the parties hereto provides in Article I:

“Section 1, Scope of the Work. The Contractor shall furnish all necessary labor and materials required to perform and shall perform all the work shown on the drawings entitled ‘Building for Bond Stores, Inc., Euclid Avenue and East 9th Street, Cleveland Ohio,’ (except such portions of the work of this Contract by the provisions of Section 1 of Article I hereof) as prepared by Walker & Weeks, Architects, hereinafter called the ‘Architects,’ whose address is 1240 Huron Road, Cleveland, Ohio.

“In general the work covered by this Contract contemplates a complete building, ready for use by Bond Stores Inc., hereinafter called ‘Bond’ as lessee of the Owner under a certain Indenture of Lease dated as of June 1, 1944 and hereinafter called the ‘Lease,’ but in no event shall the work covered by this Contract include the following terms:

“(a) The demolition of the existing structure known as the Hiekox Building.

“(b) The furnishing of the structural steel; and

“(c) The furnishing and installation of the store fixtures and equipment;

“and the Owner reserves the right to obtain proposals on the following items (which are not at the date of this Contract included in the work covered hereby);

“(1) Plumbing work;

“(2) Heating and air-conditioning work;

“(3) Electrical work;

“(4) Elevators (2) and sidewalk lift;

“(5) Pneumatic tube system; and

“(6) Sprinkler system;”

The defendant reserved the right to include any or all of these excepted items within the scope of the work to be performed by the contractor.

Article n of the Contract provides for the commencement of the work and the time of its completion as follows:

“The Contractor shall commence work on the foundations at once and shall proceed with the same as rapidly as permitted by the Progress of the work of demolition of the Hickox Building.

“The Contractor shall commence the balance of the work covered by this Contract forthwith upon the approval of this Contract by Bond and the deposit with the Disbursing Agent, in accordance with the provisions of Section 3 of Article I of the aforesaid Lease, of the cost of the New Building.

“All work covered by this Contract shall be completed by the Contractor within One Hundred (100) working days after the first delivery by the Owner to the Contractor of structural steel; * * *”

Article III of the contract provides for the contract sum to be paid to the contractor as follows:

“Section 1. The Owner shall pay the Contractor for the performance of this Contract, in current funds, as follows:

“(a) The cost of the work performed by the Contractor hereunder as such cost is defined and restricted by the provisions hereinafter contained in Section 2 of this Article III; and

“(b) The Contractor’s fee which shall be Twenty Five Thousand Dollars ($25,000.00) plus an amount equivalent to Five Percent (5%) of the cost as defined and restricted in Section 2 of this Article III, of such Item (1) to (6) inclusive, as set forth in Section 1 of Article I hereof, as the Owner, m accordance with the provisions of said Section, causes to be included in the work covered by this Contract; provided, however, in no event shall such additional fee of the Contractor exceed Ten Thousand Dollars ($10,000.00), and provided further, anything in this Contract to the contrary notwithstanding, if this Contract is not approved by Bond, then the Contractor’s fee shall not exceed Five Percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the Contractor hereunder.”

Section 2 of this Article sets forth the items that shall be included “For the purposes of determining the cost of the work performed by the Contractor. hereunder.”

The above are the pertinent parts of the contract involved in this litigation. At the end of the written instrument and following the signatures of the parties thereto there is a form to be signed by Bond approving the contract, which approval was not given.

Pursuant to the first paragraph of Article II the contractor did some work on the foundation and was paid therefor under the terms of the contract. Bond not having approved the contract the defendant refused to permit the plaintiff to commence the balance of the work of constructing the building. Subsequently a contract was let .to a third party who constructed the building. This action is brought by the plaintiff under his claim that the defendant refused to permit him to carry out his obligations under the .contract, claiming damages in the sum of $45,000.00, which he alleges to be the fair value of his profit, benefits and rights under the contract. It is defendant’s contention that unless and until the contract had the approval of Bond the plaintiff had no right under the contract to commence the construction of the building.

The case was tried to the Common Pleas Court of Cuyahoga Cbunty, without the intervention of a jury, and the court found in favor of the defendant, from which judgment this appeal stands on questions of law.

There are ten separate assignments of error; and while we have examined the record with all of them in view, perhaps the sixth covers the position of plaintiff more clearly. It reads:

“The trial court erred in admitting under the guise of surrounding circumstances, parol evidence and in using said evidence to off-set an intention expressed in the written contract.”

The question, the answer to which is dispositive of this appeal, is whether the approval of Bond of the building contract is essential to its enforcement as between the parties to this action?

In order to determine the importance or unimportance of the approval of the construction contract by Bond, it seems to this court that the Lease given by the defendant to Bond becomes most important. This Lease is referred to in the contract under consideration. The commencement of the construction work was to begin forthwith “upon the approval of this contract by Bond and the deposit with the Disbursing Agent in accordance with the provisions of Section 3 of Article I of the aforesaid Lease, of the cost of the New Building.”

This section of the Lease refers to the cost of the New Building and expressly sets forth that the cost shall not be less than $400,000.00, and that the Lessor shall not be required to expend in excess of that amount plus the amount of cash, if any, received by the Lessor from the salvage of the Hickox Building. It further provides that any cost of constructing the New Building in excess of this aggregate amount shall be paid by the Lessee in the manner therein provided. It further sets forth the various items that shall be included in the-estimate of cost and then it provides, that prior to the commencement of the demolition of the old building, for the deposit by the Lessor with a named Disbursing Agent, or one to be selected by Lessor, with the Lessee’s approval, of the $400,000.00. There was no money received from the salvage of the old building. This Section of the Lease specifically states: “All contracts for the demolition and removal of the Present Building and for the construction of the New Building shall be approved by the Lessee.” (Emphasis supplied.)

When it is appreciated that the New Building was completed at a cost of $909,641.44, and that the sum of $910,000.00 for the cost was deposited with the Disbursing Agent and that only $400,000.00 of this amount was deposited by the defendant, leaving the balance of $510,000.00, the amount deposited by Bond at various times during the progress of the construction of the building, it becomes apparent why Bond reserved the right in the Lease to approve both the Disbursing Agent and the Construction Contract. Further, the New Building was to be constructed to fulfill the obligations of a particular Lease for a special purpose that of Bond Stores, Inc.

Section 1 of Article I of the Lease provides, among other things that:

“The New Building shall be designed for the exclusive use of the Lessee in such manner as shall, in the sole discretion of the Lessee, meet with the requirements and needs of the Lessee’s business, * *

The trial court admitted the Lease in the record as well as oral testimony tending to establish that the plaintiff knew when he entered into the contract the special purpose and use for which the New Building was to be constructed. That he knew the intricate provisions in the plans and specifications indicating clearly the importance to the Lessee, Bond, of the construction in accordance with its needs and usage. It is unnecessary to relate or recapitulate the evidence in the record establishing the knowledge of the plaintiff of the limitation placed upon the defendant in its Lease with Bond both as to the financing and the construction. This testimony and the Lease were not introduced to vary the terms of the written contract in any way, nor does this evidence do so. Of course, this evidence must be limited to the subject matter of the agreement thereby placing the court in the position of the parties to the contract, so that it may determine the meaning as expressed in the written agreement. It is not for the purpose of giving effect to an oral agreement. The trial court so limited it. The question the court was seeking to answer is the meaning of the writing at the time and place when the contract was made. The surrounding circumstances relative to the subject matter at that time necessarily throw light upon the meaning of the expressed words in the contract and such circumstances and the Lease were properly admitted.

In Williston on Contracts, Revised Edition, Volume 3, Page 1777, Section 618 (,4), it is said:

“The circumstances under which a writing was made may always be shown. The question the court is seeking to answer is the meaning of the writing at the time and place when the contract was made; and all the surrounding circumstances at that time necessarily throw light upon the meaning of the contract.”

See also, Section 629, page 1804 of this volume.

Wigmore on Evidence, Third Edition, Volume E, discusses this question under the heading “Sources of Interpretation” beginning on page 224, Sec. 2470. At the bottom of page 227 it is said:

“Once freed from the primitive formalism which views the document as a self-contained and self-operative formula, we can fully appreciate the modern principle that the words of a document are never anything but indices to extrinsic things, and that therefore all the circumstances must be considered which go to make clear the sense of the words — that is, their association with things.”

In discussing the admissibility of parol evidence tending to prove the circumstances under which the written instrument was executed, the Court of Appeals (California) in Central Heights Improvement Co. v. Memorial Parks, Inc., 105 Pac. (2d) 596, said on page 605:

“The trial court admitted, over the objection of appellant, parol and extrinsic evidence consisting of conversations between the parties * * * and occuring before, during and subsequent to the execution of the agreement of April 14th. The rulings were proper. The evidence was admissible, not to vary or modify the terms of the contract * * * but for the purpose of aiding the court in ascertaining the true intent and meaning of the language used there.”

The court points out that this is so, “not by showing that the parties meant something other than what they said, but by showing what they meant by what they said.”

In discussing the admissibility of the general surroundings in which the contract was written, Judge Learned Hand, while District Judge, in the case of Eustis Mining Co. v. Beer, Sondheimer & Co. Inc. (District Court Southern Dist. New York, 1917), 239 Fed. Rep. 976, summed up the rule as to admitting such evidence with these words:

“Yet, as all language will bear some different meanings, some evidence is always admissible; the line of exclusion depends on how far the words will stretch, and how alien is the intent they are asked to include.”

In O. Jur., Vol. 9, page 408, Sec, 183, it is said:

“In construing a contract consideration should be given to all the circumstances under which the contract was made. That construction and effect should be given which shall best accord with the apparent intention of the parties as manifested by its terms taken in connection with the subject matter to which it relates and the circumstances accompanying the whole transaction.”

In Merchants National Bank v. Cole, 83 Oh St 50, 93 N. E. 465, it is said on page 59:

“In such cases the instrument is to be construed in the light of the surrounding circumstances, but this does not mean as some cases would seem to indicate, that the written instrument is to be supplanted by a new contract evolved by the court from the parol evidence. Attention should be given to what is meant by surrounding circumstances and it should be remembered that they may not be used to contradict or vary the terms of the instrument. In The Cambria Iron Co. v. Kenyes, et al, 56 Oh St 501, it is held: ‘In construing a contract of guaranty, the object should be to ascertain the intention of the parties; and as in construing all contracts the words employed by the parties should be construed in the light afforded by the circumstances surrounding them at the time it was made.’ ”

The first syllabus in Norfolk & Chesapeake Coal Co. v. John, Trading as Citizens Coal Syndicate, 18 Oh Ap 512, reads:

“Parol evidence may not be introduced to vary, modify or contradict the provisions of a written contract, where the language is clear and unambiguous, but parol evidence is admissible to show the situation of the parties and the circumstances under which a written instrument was executed, for the purpose of ascertaining the intentions of the parties and properly construing the writing.”

In Monnett v. Monnett, Admr., 46 Oh St 30, 17 N. E. 659, it is said on page 35.

“Though the rules of evidence exclude oral testimony to contradict or vary the terms of written agreements, they permit proof of the circumstances under which they were made, the surroundings of the parties, their relations to each other, and to the subject matter of the contract, to enable the court called upon to interpret them, to put themselves in the place of the parties, with all the information possessed by them, the better to understand the terms employed in the contract, arrive at the intention of the parties, and give effect to the agreement.”

The testimony in the record in the instant case together with the Lease admitted by the trial court are not alien to the written agreement under consideration. The evidence goes no further than the proper application of the written instrument to the subject matter of the contract.

The record would indicate that the trial court in the admission of much of the parol evidence labored under the impression that the contract before us is ambiguous. While we do not so hold, being of the opinion that the contract itself justifies the construction of the trial court, yet none of the parol testimony violates the rules hereinabove laid down. Therefore, this claim of error is without merit.

Plaintiff urges that the failure of Bond to approve the contract did not impair or defeat his contractual right to construct’ the building but merely changed the formula determining his compensation. He contends that the phrase in the last sentence of Section (b) of Article iri reading

“and provided further, anything in this Contract to the contrary notwithstanding, if this Contract is not approved by Bond, then the contractor’s fee shall not exceed five percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the contractor hereunder” is merely a limitation upon the stipulated fee of $25,000.00, which was to be paid in the event Bond approved the contract. That this phrase together with the first sentence in Section 2 of Article III reading,

“For the purpose of determining the cost of the work performed by the Contractor hereunder, the following items shall be included:”

indicate clearly that because the words “work performed by the contractor hereunder” are used in both sections the parties intended that plaintiff should construct the building in any event. We cannot so construe the contract. Until Bond had approved the contract the only work plaintiff was authorized to do was with regard to the foundation and for this work he was paid the cost of the materials and labor, plus five percent, as defined and restricted in Section 2 of Article III. This section, in our opinion, cannot be stretched beyond the measurement of fixing the five percent plaintiff was to receive not to exceed $10,000.00 in addition to the stipulated fee of $25,000.00. To hold that without the approval of Bond, plaintiff was entitled to construct the New Building and be paid under Section 2, is to re-write the provisions of the contract hereinabove quoted.

No doubt, both parties expected Bond’s approval of their agreement. And when it was forthcoming that the plaintiff would construct the building. They made provisions for his compensation in such event fixing it at not more than $35,-000.00. They set forth specifically how that part of the compensation represented by the five percent was to be calculated. Under the record neither party contemplated that without Bond’s approval plaintiff would erect the building and receive therefor a possible compensation in excess of the maximum amount fixed in the contract.

There is no error in the record prejudicial to appellant.

None of the assignments of error are well made and the judgment must be affirmed.

Judgment affirmed. Exceptions noted.

HUNSICKER, PJ, DOYLE, J, concur.


author: By MILLER, J:

text:
    WORLEY, d. b. a. HILL TOP SALES, Plaintiff-Appellant, v. STOLTZ, Defendant-Appellee.
    Ohio Appeals, Second District, Miami County.
    No. 464.
    Decided March 17, 1952.

      Richard H. LeFevre, Troy, for plaintiff-appellant.
    Ellis W. Kerr, Troy, for defendant-appellee.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Common Pleas Court finding for the defendant. The action was one for damages for the breach of an express warranty as to the condition of an automobile sold by the defendant. The petition alleges that the plaintiff was employed by the defendant to sell his 1947 Chevrolet automobile; that the plaintiff showed the automobile to one Arthella Walters in the presence of the defendant, and that the defendant represented to the said purchaser that the automobile was in A-l condition.

The petition alleges further that such representation was made by the defendant with the intent that the said purchaser rely thereon; that she did rely thereon and purchased the same for the- sum of $1875.00.

Plaintiff further alleges that the automobile was not in A-l condition; that the motor block on said vehicle had been cracked and an attempt made to weld the same; that the said condition was discovered approximately two weeks after the sale and plaintiff immediately notified the defendant of the same; that because of said misrepresentation the plaintiff has been- damaged in the sum of $240.00.

Plaintiff alleges further that the purchaser for a valuable consideration assigned to him all her claims, demands and causes of action against the defendant arising out of the contract for the sale of said automobile by said defendant to the said Arthella Walters.

The trial court made a separate finding of fact and conclusion of law. The Court found that the plaintiff acted as the agent of the defendant for the sale of his 1947 Chevrolet automobile; that he consummated the sale to Arthella Walters for the sum of $1875.00; that in order to aid the said sale the defendant expressly warranted that it was in “A-l condition”; that the term used, “A-l condition” was a representation that the motor block had not been cracked or welded; that the purchaser relied upon the representation made; that the damage arising out of the misrepresentation was the sum of $240.00.

In his conclusions of law the Court found that the cause of action was assignable but that this plaintiff may not maintain the action for the reason that it is in violation of the fundamental principle that an agent must be loyal to his principal. The Court quoted the following from 2 Amer. Jur., Agency, Section 252, page 203:

“The relation implies that the principal has reposed some trust or confidence in the agent. Therefore, the agent or employee is bound to the exercise of the utmost good faith and loyalty toward his principal or employer. He is duty bound not to act adversely to the interest of his employer by serving or acquiring any private interest of his own in antagonism or opposition thereto. His duty is to act solely for the benefit of the principal in all matters connected with his agency. There is a rule of common sense and honesty as well as of law. Any custom subversive to this principle must be deemed to be unreasonable, opposed to the policy of the law, and hence of no effect.”

The Court was of the opinion that the plaintiff was employed for the purpose of making the sale and when the sale was consummated the agency terminated, but

“the duty of the agent to be faithful does not cease when the employment does and cannot be renounced * * *; that the plaintiff was acting in good faith in everything that was done by him. His motives were partly selfish, however, in that it was to his interest to do what he did to maintain his reputation for fair dealing as a used car dealer. He made things right because he thought they should be made right with Mrs. Walters, f * * but even so, I don’t believe he can acquire by assignment, or if he does acquire by assignment, I don’t think he can sue his former principal as he has done in this case.”

The question presented is whether or not the Court erred in its legal conclusion concerning the relationship of these parties after the sale was consummated, there being no question but what the rule was correctly stated during the existence of the agency. We are of the opinion that the authorities support the view that when the sale was completed the agency terminated, no further duty remained to be performed under the facts presented and the plaintiff was at liberty to enter a contract with the purchaser of the automobile without reference to his former employment. It should be noted that the Court found that the plaintiff acted in good faith at all times. The principle seems to be well stated by the Court in Lum, et al. v. Clark, et al., 295 Ill. 22, 128 N. E. 825 (1920), in which an agent for the sale of^eal estate entered into a profit splitting agreement with a purchaser twelve days after the sale, the court in holding the agent not answerable to his principals for his share of the profits says:

“When the sale has been completed no duty to the principal remains to be performed, and the agent is at liberty to deal with a purchaser of the property without reference to his former agency.”

In the case of Curry v. Marquart, 133 Oh St 77, the Court held that an employee upon taking up new employment would not be restrained at the instance of his former employer from soliciting his former customers for the new employer. Judge Matthias said at page 80:

“This case involves no question of trade secrets or confidential information. True, the decisions are not in accord; but no well considered case has gone so far as to hold that one may be enjoined from séeking to do business with friends, though they bepome such in the course of and as a result of previous employment.

“As said by the court in Fulton Grand Laundry Co. v. Johnson, 140 Md., 359, 117 A., 753, 23 A. L. R., 420: ‘Under such a rule, a traveling salesman, every time he changed employers, if in a like business, would be compelled to give up all the friends and business acquaintances made during the previous employment. Such a rule would tend to destroy the freedom of employees and to reduce them to a condition of industrial servitude.’ ”

Although a different question was presented in the Curry case we think the legal principle is applicable to the case at bar.

A similar pronouncement is found in Soeder v. Soeder, 50 Abs 84, the first syllabus of which provides:

“In the absence of an express contract not to do so, an employee in engaging in a competitive business, may solicit the trade or business of his former employer and will not be enjoined where there is no disclosure or use of trade secrets secured in the course of his employment.”

In Robertson v. Chapman, 152 U. S. 673, the court held that where an agent sells without any understanding or expectation of becoming interested in the purchase he is at liberty later to buy the property from the purchaser. The appellee seems to admit that the plaintiff was at liberty to repurchase the automobile but that the taking of the assignment of the cause of action involves an entirely different situation. We are not able to arrive at this conclusion. The appellant used no confidential information which he acquired by reason of his employment, so there could be no betrayal of any interest which was reposed in him. He did only what the appellee should have done, to-wit: make an adjustment for the breach of the express warranty. The court found all the facts exist'ing which were necessary for the purchaser to maintain the action against the appellee. So it makes no material difference whether this appellant takes the assignment or some stranger to the transaction. The only difference we are able to observe would extend to the matter of proof and weight of the evidence, all of which would have to be resolved by the trial court. This court will render the judgment that should have been rendered in the lower court. Judgment reversed and judgment rendered for the plaintiff for $240.00 and costs.

HORNBECK, PJ, WISEMAN, J, concur.


author: By HORNBECK, PJ:

text:
    TALBOT et, Plaintiffs-Appellees, v. RESLER et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2171.
    Decided April 10, 1952.
    Miller & Compton, Dayton, for plaintiffs-appellees.
    Shaman, Winer & Shulman, Dayton, for defendants-appellants.
   OPINION

By HORNBECK, PJ:

This is an appeal from a judgment of the Common Pleas Court affirming an order of the Municipal Court of the City of Dayton, Ohio, granting a writ of restitution of premises to plaintiffs on an action in forcible entry and detainer.

The record is made by a stipulation of the parties.

Four errors are assigned, the first and fourth of which are dependent upon the determination of the second and third.

The second assignment is:

“The court erred in overruling appellants’ motion to dismiss appellees’ action for its having been continued longer than eight days after the appearance date.”

The statute invoked by the appellants to support the second assignment of error, is §10455 GC:

“No continuance (in forcible entry and detainer cases) shall defendant, applying therefor, gives a- bond to the adverse defendant, appllying therefor gives a bond to the adverse party, * * * conditioned for the payment of rent that may accrue, if judgment be rendered against him.”

This section is controlling only if defendant, by application, invokes its provisions. It is for the benefit of the plaintiff to make certain that if a continuance is granted for more than eight days he will be assured of his rent, if he eventually prevails in his action. It has no application to the situation here stipulated, viz: that

“Before trial, and at the request of the plaintiffs and on the consent of the defendants, the trial was continued from the 20th of March, 1951 to April 6, 1951.”

There would be some analogy to §10378 GC, which defendants cite had they without the consent of the plaintiffs made application for a continuance from the date set for the hearing. However, the cited section does not purport to affect or control the jurisdiction of the Court to hear and dispose of the action.

The continuance was granted on the application of the plaintiffs and even though the defendant had not consented no prejudice to them appears. But defendants consented to the continuance. How then can he be heard to question its regularity and validity?

The third assignment of error is:

“The Court erred in overruling appellants’ motion to dismiss appellees’ action at the conclusion of appellees’ case for failure to prove a copy of their Statement of Claim had been sent to the Dayton Area Rent Office.”

A reading of Section 825.6 (b) (2) of the Rent Regulations under the Housing and Rent Act of 1947, as amended, upon which the appellants rely, is convincing that a copy of notice to tenant was not required to be sent to the Dayton Area Rent Office because the forcible detention action was not instituted on any grounds set out in Par. (a) of Section 825.6, a prerequisite to the necessity of the presentation of such copy to said office.

No error assigned is established.

The judgment of the Common Pleas Court will be affirmed and the cause remanded to the Common Pleas Court.

WISEMAN and MILLER, JJ, concur.


author: By HOOVER, J.

text:
    STATE, ex rel. HANRAHAN et, Relators, v. ZUPNIK et, Respondents. STATE, ex rel. BARRETT et, Relators, v. ZUPNIK et, Respondents. STATE, ex rel. HORN et, Relators, v. BATH et, Respondents. STATE, ex rel. ANKLAM et, Relators, v. BATH et, Respondents.
    Common Pleas Court, Cuyahoga County.
    Nos. 602097, 602098, 602099, 602100.
    Decided June 19, 1952.

      Green, Lausche & Wilmot, A. F. Gallagher, Cleveland, for relators.
    Joseph H. Crowley, Director of Law, James M. McSweeney, Asst. Director of Law, Cleveland, for respondents.
   OPINION

By HOOVER, J.

These are four mandamus cases. Each is a group action to enforce pensions. Two cases involve police pensions. Two eases involve firemen’s pensions. In each case, the respondents are the particular pensions fund’s trustees, its custodian and the City of Cleveland. The facts are all agreed. Only questions of law are presented. Firemen’s pensions are governed by §4600 GC, et seq. Police pensions are governed by §4616 GC, et seq.

One of the police cases and one of the firemen’s cases involves pensioners who were qualified and placed on the respective pension payrolls prior to May 26, 1937. The other police case and the other firemen’s case involves pensioners who were qualified and placed on the respective pension payrolls after May 26, 1937.

May 26, 1937 is an important date because it was the effective date of the so-called “vested rights” statutes (§4612-1 GC as to firemen pensions and §4628-1 GC as to police pensions). The rights of those who became pensioners before that date and the rights of those who became pensioners after that date are governed by slightly different principles. Two classes of pensioners were created by those statutes. State, ex rel. Cunst v. Trustee et al, 150 Oh St 377, 379. These two groups will be referred to as the “before vested right statute group” and the “after vested right statute group.”

Due to lack of funds, there were certain months in between the years 1940 to 1946 when no payments or only partial payments were made to police pensioners; and certain months in between the years 1945 to 1946 when no payments or only partial payments were made to firemen pensioners. However, during those years the pension trustees of each fund did distribute to pensioners all the money that was in the fund. At the time these actions were brought in 1949, due to replenishment there were on hand in the respective pension funds sufficient money to pay these so-called past delinquencies as well as all other presently due obligations.

Defendants say that during each so-called delinquent year every step required by law to be taken to raise money to pay pensions was taken; that all money raised was wholly distributed during each such year; and that whenever the trustees in any one year have distributed all the money on hand during that year, their obligation to the pensioner for that year is forever discharged even though the distribution was not sufficient to pay him the full amount of his pension for that year. The relators deny any such automatic chopping-off of their rights at the end of. each calendar year. Relators say that these pensioners have a vested right to a definite amount, that the inability of the fund in any one year fully to pay that amount does not destroy the obligation and that the delinquencies must be paid at any later time when sufficient money is available to pay them.

To the defendants, a pension is a matter of each calendar year being a separate little compartment of business unto itself. To the relators, each year cannot hide behind its own little sort of corporate entity; it is a matter of one, continuing single business being responsible for its obligations whether they were incurred this year or last year or the year before.

We first discuss the “after vested right statute group.” Secs. 4612-1 and 4628-1 GC, applying respectively to firemen’s pensions and police pensions and known as the “vested right” statutes, provided in the forms thereof that became effective on May 26, 1937:

“The granting of a pension to any person hereafter pursuant to the rules adopted by the trustees shall operate to vest a right in such person, so long as he shall remain the beneficiary of such pension fund, to receive such pension at the rate so fixed at the time of granting such pension.” There is no denying it because the statutory words are specific — the effect of the statute is to “vest a right” — The standard definition of “vest” is “To give an immediate fixed right of present or future enjoyment.” Accordingly he who became a pensioner on or after May 26, 1937 (unless there was some statutory modification before he became a pensioner) got an immediate fixed right. It was a right to receive a pension. It was a right to receive it at a fixed rate. It was a right to receive it at the rate fixed at the time the pension was granted.

The only conditions to vesting imposed by the statute are (1) that a pension be granted and (2) that this granting be pursuant to rules adopted by the trustees. These conditions were met as to this “after vested right statute group.” The vested right continues so long as the grantee remains a beneficiary of the fund. This requirement too was met by this group.

Note that the statute does not impose any other condition. The vested right to receive a pension payment due in any year at a fixed rate is not made dependent upon the size or condition of the fund in any year, nor upon the amount of collections in any year, nor upon payment from collections made in any year, nor upon there being enough in the fund in any year to meet all the pension payments coming due that year, nor upon payment out of money derived from any particular source. The statute does not say that this vested right to receive fixed pension payments due in any year is discharged if there is no money in the fund or if the money is all paid out in any year.

We have no right to clutter this clear statute with conditions. If we started reading into this statute any one of these conditions that are not there we could just as well read into it all the others that are not there, and a right that the statute intended to guarantee would vanish instead of vest. The purpose of pension statutes is the humane one of caring for people. The purpose of the “vested right” statutes is to make that care effective by providing these people with something definite on which they can count. Their purpose is to do away with the gnawing, destructive, nerve-wracking peril of uncertainty. Respondents would have us restore the uncertainties that the “vested right” statutes remove. These statutes remove this awful business of constantly being kicked around by harrowing uncertainty. They do it by imposing a fixed obligation. The fixed right of a pensioner to receive a fixed pension is not destroyed by the fund being temporarily out of money, any more than is a creditor’s right to payment impaired because his debtor is temporarily embarrassed.

A pension fund is only one fund. It is not a series of separate funds made up of money received in separate calendar years or a series of separate funds made up of money derived from separate sources or a series of separate funds with separate beneficiaries. All money goes into one till un-earmarked except to pay fund obligations. To quarter or carve up the fund would be to quarter or carve up some needy persons’ human rights.

There is no doubt that the present size of the pension funds and the present availability of money to pay past delinquencies are in great measure due to contributions made by the state pursuant to the state subsidy statute, §4631-4 GC, which became effective on September 25, 1947. Respondents contend that money derived from this source cannot be used to pay such delinquencies. We fail to find that the legislature has clamped any such shackles on its use. Essentially the statute merely says that the subsidy money shall be paid to the pension fund. The statute does not specify for what the subsidy money shall be used or for what it shall not be used. We take it therefore that the legislature intended that it should be used for any legitimate purpose of the fund. What more legitimate fund purpose is there than paying fund obligations whether they became obligations five minutes or five years ago or whether they become obligations fifty minutes hence.

A legislature which had been solicitious enough of pensioners to protect them with vested rights to fixed payments could not have been blind to the fact that payments were delinquent and that the pension funds had unpaid obligations. In providing state subsidy, we believe the legislature was just as concerned in seeing that these vested obligations were paid as it was in making provision for them to be vested in the first place. Care is the guiding concept. We think the legislature was just as intent in providing money to pay what was vested and due the pensioned veteran, his widow and orphan of the years 1945 and 1946 as it was those of 1948 and 1949. If the legislature had intended to shut out the former from state benefits it would have said so.

Defendants’ theory of the purpose of the “vested right” statutes is that they were meant but to take away from the pension. trustees the power to impair the right to a pension which was granted after the statutes’ effective date (State ex rel. Lemperle v. McIntosh, et al., 145 Oh St 107, 111) and that the trustees have done nothing to impair relators’ rights here. Doubtless that is one of the purposes, but it is only one and not the only one. The existence of that purpose does not rule out other purposes. In fact the Supreme Court has revealed another purpose in holding that rights which have vested under such statutes cannot later be impaired even by the legislature. State ex rel Cunat v. Trustees, 149 Oh St 477, 483. The Supreme Court came to this conclusion even though such statutes do not even mention the legislature. On their face and in the plainest terms these statutes make too clear to be denied — whatever else may be their purpose — the conspicuous, unmistakable purpose to give a vested right at a fixed rate. Other purposes do not destroy this specifically-worded, featured, dominating purpose. In quest of hidden meanings, we must not lose sight of the obvious meaning. In the case last cited it is said (p. 481-82):

“s * ♦thg effect of these statutes (vested right statutes) is to make the engagement of public authorities to pay a pension, upon conditions fulfilled, a contractual obligation founded upon a valid consideration, giving to the pensioner a vested right in his pension which cannot afterwards be impaired or revoked.”

The “after vested right statute group” fulfilled the conditions and their rights vested. The “vested right” statutes give them a fixed pension instead of an “iffy” pension.

Next we discuss the “before vested right statute group.” Pensions granted before the effective date of these statutes in 1937 were held to be gratuities and not vested rights. State ex rel Carrell v. McCarthy, 139 Oh St 654, 655. Though that is the general rule long recognized by most authorities, it has an exception long recognized by most authorities, namely, that “where a particular installment of a pension has accrued there is a vested right in the pensioner to that installment ” 137 A. L. R. 249, 255; 112 A. L. R. 1009, 1010; 98 A. L. R. 505, 507; 54 A. L. R. 943, 945; 40 Am. Jur. (Pensions) 981: 21 R. C. L. (Pensions) 242-243, Sec. 7; 3 McQuillin on Municipal Corporations (3rd ed., 1949) 516, Sec. 12.145; 50 L. R. A. N. S. 1018, 1021; Thompson v. Marion, 27 Abs 341, 348, syl. 4, affirmed 134 Oh St 122. The “before vested right statute group” seeks payment only of installments that had accrued to them under trustees’ rules that existed at the time of accrual. Under the authorities the right to such installments is vested. Being vested it becomes a fund obligation payable out of the fund just the same as rights that vest under the statutes

Question is raised as to whether mandamus is the proper remedy to enforce these pensions. Defendants remind us that relators must establish a clear right, also establish that there is no plain and adequate remedy in the ordinary course of the law. State ex rel Stanley v. Cook, 146 Oh St 348. We think these requisites are met. Relators have a clear right to payment of money out of a fund in which there is sufficient money to make such payments. The trustees and the custodian are under a clear duty to set the machinery into operation to make such payments. Effective in 1939 (long before the present suits were brought) is this clause in the present form of §4612-1 GC, relating to firemen’s pensions:

“The right to obtain and receive the relief or pension herein granted may be enforced by an action in mandamus instituted in the court of common pleas * * *”

Admittedly this statute applies only to firemen’s pensions and not police pensions, but it really created no new right. The legislature merely did what a legislature frequently does — that is — legislatively affirms an existing right. It is hardly thinkable that the legislature intended to play favorites giving the firemen a remedy and denying it to the police. There are too many high court cases in Ohio and throughout the United States wherein pension rights were enforced by mandamus for a trial court to assume to overrule its superiors on this point.

Finally, we consider the six year statute of limitations (§11222 GC) set up by defendants to certain of the causes of action. State ex rel Delaney v. Holmes, 5 Oh Ap 1, affirmed 93 Oh St 480. According to this authority, a pensioner’s right to mandamus accrues every month as to that month’s installment, and remedy is barred as to every installment that is six years overdue. That is the general rule, but here again there is an exception, namely, where no money is available to make payment an action in mandamus does not accrue and does not lie to compel payment, and the statute of limitations does not begin to run until money is available for payment. The court will not compel a vain, idle act. One of the points most strongly urged by defendants is that “in each year both pension Boards of Trustees made distribution of all the pension money on hand, and available to pay pensions.” The statute of limitations does not begin to run until funds are available to pay, and here there is no showing that funds were available six years prior to the commencement of these actions so as to start the statute of limitations running.

Accordingly, decrees may be drawn for relators.