author: By THE COURT.

text:
    HARRIS, Guardianship, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4970.
    Decided February 3, 1954.
    Dale D. Rapp, Columbus, Guardian of Rhea W. Harris, for appellee.
    Horace S. Kerr, Columbus, for Dr. William B. Harris, Appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Probate Court appointing a guardian for the person and estate of one Rhea W. Harris, an incompetent person now confined in the state institution for the insane. The incompetency of the ward is admitted by the appellant, but he denies the necessity for the appointment, urging that there is nothing in the record which supports such a determination. Clearly, if the record supports the appellant’s contention, there was an abuse of discretion and the judgment should be reversed in so far as it relates to the estate of the ward. Sec. 10507-2 GO provides that the Probate Court shall upon the application of an interested party appoint a guardian for the person or estate of an incompetent person who is a resident of the county when the same is found to be necessary. The record discloses that an application was properly filed in the Probate Court alleging that said Rhea Harris was an incompetent person, possessed of personal property of the probable value of $2000.00, and interest in real property of the approximate value of $10,000.00; that after the application for a guardian was filed but before the appointment was made, the Court of Common Pleas, in a divorce action wherein said Rhea Harris was the defendant and represented by a guardian ad litem, appointed by the Court, although §2307.13 R. C. (§11249 GC), designates the same as a “trustee for the suit,” granted a decree of divorce to the husband and in disposing of the property rights, awarded him a three-fourths interest in the home which stood in the wife’s name, and also awarded to him the remaining one-fourth interest, the same to be held in trust by him for said Rhea Harris under certain specified terms and conditions. She was awarded her clothing, jewelry and several pieces of furniture, all of which were to remain in the custody of the former husband until further order of the Court. This, it appears, disposed of all the property in which Rhea Harris had any interest.

The record also discloses that a prior divorce action between the same parties was dismissed several days before the above mentioned divorce action was instituted. In that proceeding a different guardian ad litem was appointed who refused to sign a judgment entry very similar to the one approved in the second case. Instead he objected most strenuously to the same and filed a motion to reconsider, after which the action was dismissed without prejudice at the plaintiff’s request. Immediately after this dismissal the guardian ad litem in the first action filed the application for a guardian which is now being considered. It is apparent that there was a conflict between the guardians ad '.item as to the proper procedure in the divorce actions, the one taking exceptions to the order of the Court, and the other, concurring.

In giving consideration to this factual situation and others presented in the record we cannot say that the Court abused its discretion in making the appointment. This being a law appeal we may not substitute our judgment for that of the trial court. The power is one which rests within the sound discretion of the Probate Court. In re Guardianship of Wilson, 23 Oh Ap 390.

We find no error in the record and the judgment will be affirmed.

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


source: Caselaw Access Project

author: By DOYLE, J:

license: Public Domain

text:
    CLEVELAND TRUST CO., Trustee etc., Appellee, v. MANCHESTER et al, Appellants, et al.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23231.
    Decided July 27, 1955.

      Baker, Hostetler & Patterson, Cleveland, for appellee.
    Van Aken, Whiting, Arnold & Nash, Cleveland, Amerman, McHenry, Jones & Morgan, Canton, for appellants Ida Austin Manchester, et al.
    Jamison, Ulrich, Hope. Johnson & Burt, Cleveland, for appellant Fred O. Burkhalter, Guardian ad Litem for Robt. Mack, a minor, etc., et al., etc.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for appellants Ida Stewart Austin, et al.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

The Cleveland Trust Co., in its capacity as trustee under two substantially identical trusts created by Samuel and Sarah J. Austin, during their lifetimes, brought this action in the Common Pleas Court of Cuyahoga County, in which it prayed for instructions in respect to the settlement of several controversial matters, included in which were instructions relative to certain first rights of purchase of corporate stock allegedly granted by the trust instruments to the wife and children of Wilbert J. Austin, deceased, the only son of five children of the settlors.

The trust instrument of Sarah J. Austin contains the following provisions pertinent to the issues:

“I do further provide that in the event that the trustee, after my decease, proposes to sell, or otherwise dispose of, or to distribute any part or all of the capital stock of the Austin Company which may be part of the trust estate, the trustee shall, before otherwise selling, disposing of or distributing the same, offer such stock to my son, Wilbert -3 Austin, or if he be deceased, to his executor or administrator, or if there be no such executor or administrator then acting, to his wife and children, or such of them as may then be living, at such price and upon such terms and conditions of sale as the trustee, in its discretion, may deem proper, it being my hope and belief that in such event the trustee and my son, or his said representatives, as the case may be, will be able to come to such an agreement as will prove mutually satisfactory, and that in any case my said son, or his said representatives, shall have the first right to purchase such stock so to be sold, disposed of or distributed under any of the terms of this instrument, at as favorable a price and upon as favorable terms as the trustee shall offer to anyone else, and in case of his purchase of any of such stock which may be distributed to any of said daughters at any time hereunder, at such price as the trustee and he may agree upon, or failing so to agree, then at the price determined in the manner hereinafter set forth with respect to fixing the price for the purchase by him of any real estate he and I may own jointly or as tenants in common or otherwise.
“In the event that my said son, or his said representatives, as the ease may be, shall be unwilling to purchase some or all of the stock at a price and upon terms and conditions deemed proper by the trustee, the trustee shall be free to sell the said stock to such other parry or parties as the trustee may see fit, at and upon the said price and terms deemed proper by the trustee, and in case at the time hereinbefore fixed for the distribution to any of my children and/or their issue or other representatives hereinbefore provided, any of the stock of the Austin Company shall remain in the trust estate unpurchased by my son or otherwise unsold or undisposed of, the trustee may distribute such shares in kind to the distributees * * *.
“I also direct that my son, Wilbert J. Austin, shall have the sole option and right for six months following my decease to purchase the City Mill property, so-called, being premises now occupied by the Austin Company, and also any interest which I may own or which may be held hereunder jointly or as tenant in common with him or his wife, being that interest in the premises now known as the office property and the Bliss Mill property, occupied by the Austin Company, and in the event he so elects to purchase the said parcels, or any of them, he shall pay therefor such sum as he and the trustee may agree upon, and in the event of their failure so to agree, then such price shall be determined by arbitration as follows:
“Three arbitrators shall be chosen, who shall name such price, one arbitrator to be selected by the trustee, one by my son, Wilbert J. Austin, and the third by the remainder of my children. The amount thus determined shall be considered the price and value of the said premises which my son shall pay to the trustee therefor. The terms of payment shall be such as shall be determined to be fair and just by said trustee.
“I direct that such of my daughters, viz.: Ida Austin Manchester, Florence Austin Shimmon, Lillian E. Ferguson, and Ethel Austin Whiting, who may survive me, and in the order so named, shall have the right and option to purchase, for six (6) months following my decease, the real estate in Willoughby, Ohio, now occupied by my husband and myself as a homestead, at such price as may be agreed upon by the daughter so purchasing and the trustee, and in event of their failure to agree, then such price shall be determined by arbitration precisely as hereinbefore provided in respect of the purchase of real estate jointly owned by my said son, except that the daughter so purchasing, instead of my son, shall name one arbitrator. The terms of such purchase shall be the same as above provided for a purchase of real estate by my said son, and the daughter so purchasing shall have the same right above provided for my son in respect of having her share of the trust estate applied toward the purchase price.”

The Samuel Austin trust, in so far as the terms thereof apply to the questions presented, is identical with terms heretofore set forth in the instrument of his wife, Sarah J. Austin.

The trustee in its petition alleges:

“4. That under said trust agreements certain provisions are made extending to the wife and children of Wilbert J. Austin, deceased, a prior right of purchase of shares of the Austin Company held in said trusts upon sale or distribution of said shares of the Austin Company: that stock of the Austin Company, both common and preferred, constitutes the principal asset of said trusts; that under said trust agreements * * *, a life estate was created for each of the five children of settlors with general testamentary power of appointment in each of said children of his or her share, and in default of the exercise of said power, a gift of the remainder to the issue of each said child of said settlors; that Wilbert J. Austin died without exercise of his testamentary power of appointment and each of the four daughters released said power for tax reasons; that in accordance with the terms of said trusts, the share of Wilbert J. Austin therein held for his benefit during his lifetime, including common and preferred stock of the Austin Company, was distributed to his children following his decease in December of 1940 and that since said date no shares of the Austin Company have been sold or distributed from said trusts.
“5. That Florence Austin Shimmon, a daughter of the settlors and a life beneficiary under said trusts, died on or about June 6, 1951, leaving as her sole children two daughters, namely, the defendants, Florence Shimmon DeGuerre and Katherine Shimmon Crowther; that since the death of Florence Austin Shimmon, the widow and children of Wilbert J. Austin, deceased, on their part have demanded that plaintiff fix a price upon both the common and preferred shares of the Austin Company which are otherwise distributable to the said daughters of Florence Austin Shimmon, deceased, as her issue, and proceed with arbitration if it becomes impossible to work out an agreement upon price between the trustee and said widow and children of Wilbert J. Austin, deceased; that the widow and children of Wilbert J. Austin, deceased, have further requested withholding of distribution of dividends upon shares of the Austin Company to the daughters of Mrs. Shimmon upon the theory that said dividends will follow the purchase of said shares when, as and if said purchase is made; that on the other hand, the two Shimmon daughters have indicated opposition to the alleged right of first purchase in the Wilbert J. Austin family and have insisted upon immediate distribution to them of the dividends accruing since the death of their mother upon the Austin Company stock allocable to Florence Austin Shimmon’s life interest; that plaintiff has distributed to the two Shimmon daughters their share of the trust assets allocable to Mrs. Shimmon’s life estate other than stock in the Austin Company but that, because of the conflicting claims of the defendants herein, plaintiff is not able to make distribution or otherwise proceed as to the shares of stock in the Austin Company; that large dividends are accumulating which should be distributed to the rightful owners of them at an early date, and that complex income tax problems for the trusts and the individuals who may ultimately be held entitled to said dividends have arisen and will become more involved the longer said dividends are obliged to accumulate.
K:]c $ *
“7. That in connection with the administration of the trusts above mentioned, and particularly since the death of Florence Austin Shimmon, deceased, serious questions have arisen which require the plaintiff, as trustee, to ask the instruction and direction of this court; that in preliminary discussions with representatives of the Wilbert J. Austin family, it has become evident that if the prior right of purchase of the Austin Company shares, both preferred and common, exists with reference to the shares allocable to Mrs. Shimmon’s life estate, then agreement between the trustee and the Wilbert J. Austin family appears unlikely, either as to the preferred or the common, and that the questions submitted by the plaintiff as trustee under said trust agreements are as follows:
“(a) Do the widow and children of Wilbert J. Austin have a first right of purchase upon any or all shares of the Austin Company sold or distributed by the trustee in the administration of said trusts, including shares distributable in kind upon the death of one of settlors’ daughters?
“(b) Are shares of the Austin Company which are distributable upon the death of one of settlors’ daughters to her issue in kind distinguishable from or in a different category than shares * * distributed to any of said daughters at any time * * *’?
“(c) Does the arbitration provision set out for fixing the price for the purchase of certain real estate apply to stock distributable in kind upon the death of one of settlors’ daughters?
“(d) What procedure shall arbitrators follow in the course of their consideration, if any; as of what date shall they fix a value; how shall they vote; will a majority vote control; how shall they be compensated; and when, if at all, does a decision of said arbitrators become binding upon the parties to said arbitration?
“(e) Who is entitled to dividends accruing after the death of one of settlors’ daughters upon the common and preferred stock of the Austin Company held in said trust but distributable in kind to the issue of such deceased daughter?
“(f) What rate of interest, if any, should be paid upon the purchase price, and for what period by the widow and children of Wilbert J. Austin, if the dividends mentioned in (e) above become payable to them?
“(g) When shall the dividends mentioned in (e) above be distributed?”

Pursuant to trial and judgment in the Court of Common Pleas of Cuyahoga County, separate appeals have been perfected to this court on questions of law and fact. We now entertain the action for trial de novo.

The members of this court have examined with great care the several hundreds of pages of briefs, in the light of the evidence presented. While a detailed analysis of the arguments would perhaps be of academic interest, it is the purpose of this court, in view of the fact that the case has been heard de novo and there will undoubtedly be a request made for separate findings of fact and conclusins of law, to instruct the trustee without extended comment. The respective claims of the adversaries are well known to counsel and need not be here repeated.

In answer to requests:

(a) Under the terms of the instruments the widow and children of Wilbert J. Austin have the first right to purchase any of Austin Company stock to be sold or distributed by the trustee in the administration of the trusts, and such right extends to shares distributable in kind upon the death of any one of the settlors’ daughters.

(b) The shares of the Austin Company which are distributable upon the death of one of the settlors’ daughters to her issue are not placed in a different category than shares distributed to any of the daughters at any time. The right to purchase applies to any circumstances under which the trustee might sell or distribute the stock.

(c) The arbitration provision set out for fixing the price for the purchase of certain real property specified in the instruments, equally applies to stock distributable in kind upon the death of one of the settlors' daughters.

The instruments provided that the trustee should “offer” the stock to the settlors’ son, or, if he be deceased, to his legal representative, or to his wife and children, “at such price and upon such terms and conditions of sale as the trustee in its discretion may deem proper.”

It may be assumed, we think, that the settlors were entirely familiar with the duties of a trustee, included in which is the duty to conduct the affairs of his relationship with a view to the best interests of the beneficiaries; and when they specified that the trustee could sell the stock at a price that it, the trustee, “shall deem proper,” in its discretion (not abuse of discretion), the power was given the trustee to sell at a price reflecting a fair and reasonable value; and if then Wilbert J. Austin or his family failed to agree with the price fixed by the trustee, resort should be had to arbitration.

The settlors were important persons in the business world, and it is reasonable to believe that they anticipated a situation in which two thoroughly honest and competent individuals could not mutually agree upon the fair and reasonable value of an unlisted stock. They solved this problem by providing for arbitration.

(d) The word “arbitration” has been used in this decision. It is used in a loose sense. Strictly speaking, we are not dealing with arbitration, but with a closely related subject, that of the determination of the value of property by appraisement. If such “arbitrators” or appraisers, are selected, it would be their duty to conduct a hearing, in which they should examine into the question of the fair market value of the stock. This market value of the stock should be established as of the time of the death of the settlors’ daughter, Mrs. Shimmon. They should have for their consideration the financial state of the company, its earnings, the book value of the stock, the corporation’s good will, and the many other factors which enter into a determination of the fair market value of corporate stock. We have thus detailed above only some of the factors which should be taken into account in determining the value of this stock. These appraisers should have the benefit of the testimony of experts in the field of corporation finances and corporate investments.

The statutory rules for arbitration are not here involved. The “arbitrators” must as a unit determine the valuation. The power conferred by the instruments is as follows: “Three arbitrators -shall be chosen, who shall name such price * * *. The amount thus determined shall be considered the price and value * *.” This matter we hold to be within the rule that, “where a power or authority is entrusted to several persons to be exercised in relation to matters of a private nature, as distinguished from those of a public character, all must concur in order to its valid execution.” Lowe v. Brown, 22 Oh St 483, at p. 466. It is obvious that a “majority vote” will not control.

In the absence of any provision in the instrument specifying the persons who shall pay the “arbitrators,” principles of equity and fair dealing would, we think, require that each arbitrator be paid by those who made the selection. The compensation of the arbitrator selected by the trustee should be charged to the trusts.

A decision of the “arbitrators,” as to the value of the stock, shall be binding as fixing the price at which the Wilbert J. Austin family may purchase the stock.

(e) The right to purchase the shares in controversy at a price to be fixed, came into existence at the time of the death of Mrs. Shimmon. Until the shares are purchased upon a satisfactory price under the terms of the trust instruments, the right to the dividends in the interim are in the equitable owners, and do not follow the stock into the hands of possible purchasers who may or may not find the price satisfactory and who may or may not purchase the shares.

(f) Deciding (e) above in the manner indicated, the answer to this question is obvious.

In further consideration of the case before us, The Cleveland Trust Co. is authorized to secure the assistance and advice of independent experts in its work of administering these trusts. Experts so employed should be paid reasonable fees out of the trust estate. It is further entitled to a 5% fee on gross income received by it, including the now-accrued dividends on the Shimmon stock. The expenses incurred in this litigation, including counsel fees, court costs, and other necessary expenses, shall be borne by the trust estates.

A decree shall be drawn incorporating the above conclusions.

STEVENS, PJ, HUNSICKER, J, concur.

      For subsequent opinion in this ease modifying these statements seg post pg. 513,


text:
    XANDERS, Plaintiff-Appellee, v. BOBST, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4837.
    Decided September 25, 1953.
    A. Millard Armstrong, Columbus, for plaintiff-appellee.
    Arthur L. Spielmann, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus, rendered in favor of the plaintiff.

Plaintiff in her petition alleged that, at defendant’s request, she loaned the defendant $375.00 in July, 1949, and at his request made eight monthly payments on a motorcycle, said payments aggregating $593.92; that defendant agreed to repay- said loans, but failed so to do. The trial court entered judgment for the amount prayed for.

Defendant-appellant claims the trial court erred in overruling the motion for new trial; that the judgment is against the manifest weight of the evidence, is not sustained by the evidence, and is contrary to law.

There is a direct conflict in the evidence on the question of the loans. The trial court resolved this issue in favor of the plaintiff, which was within the province of the trial court. We cannot say that the conclusion of the trial court that plaintiff loaned to the defendant $968.92 is against the manifest weight of the evidence. There was some corroborating evidence supporting plaintiff’s claim.

The trial court found that the loan of $375.00 was to be repaid to the plaintiff. We are not disposed to disturb the finding. However, a question is presented as to whether defendant agreed to repay the full amount paid by the plaintiff on the motorcycle. On this issue the testimony of the plaintiff in chief is as follows:

“Q77. Did you and he discuss what was to be done about the money that you were paying on the motorcycle?
“A. Well, we made an agreement when I said that I would help pay part on the motorcycle, that when he sold it we would go ahead and split — I mean he wouldn’t pay back the full amount, but we would split the amount of money that was gotten after it was.sold.”

On cross examination she repeated the same statement. She further testified that when the motorcycle was sold she asked the defendant for the money and he said he would use the money to pay his wife’s hospital bills. There is no evidence which would justify a conclusion that defendant agreed to repay the entire amount paid on the motorcycle, or that the plaintiff made the payments with that understanding. The motorcycle was sold for $570.00. Under the evidence plaintiff would be entitled to recover one-half the sale price, to wit, $285.00, Plaintiff was entitled to judgment in the amount of $660.00,- together with six per cent interest on $375.00 from July first, 1949, and six per cent interest on $285.00 from July first, 1950, the approximate date of the sale of the motorcycle.

We find the judgment as entered to be against the manifest weight of the evidence; is not sustained by the evidence, and is contrary to law. The motion for new trial should have been sustained.

Unless plaintiff enters a remittitur for the amount in excess of the amount herein found due the plaintiff, judgment will be reversed and cause remanded for further proceedings according to law. If a remittitur is entered, then judgment will be affirmed for the amount stated.

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


author: By FULTON, J:

text:
    BILEK, Appellee-Claimant, and SCANLON, Admr., BUREAU OF WORKMEN’S COMPENSATION, Appellee-Administrator, v. CLEVELAND (City), CLEVELAND TRANSIT SYSTEM, Appellant-Employer
    Common Pleas Court, Cuyahoga County.
    No. 678780.
    Decided March 14, 1956.

      Shapiro, Kendis & Petro, Cleveland, for appellee-claimant Bilek.
    Robert F.. Mooney, Cleveland, for appellant-Employer Transit System.
   OPINION

By FULTON, J:

The present question arises in an employee-appeal from the Industrial Commission.

The employer filed a notice of appeal purportedly conformable to the provisions of §4123.51 R. C. The notice of appeal set forth the names of the claimant, the administrator and the employer, the number of the'claim and the fact that an appeal was taken.

The notice stated that the appeal is “from an order of the Industrial Commission dated October 11th, 1955.” The statute requires that “the date of the decision be set forth.”

The employee requests that the notice of appeal be made definite and certain by setting forth the date of the last hearing of the Industrial Commission, to-wit, October 3rd, 1955, together with the order as made on said date.

Should this motion be granted or denied?

At first blush the conclusion is readily reached that a notice of appeal is not subject to such motion. The answer, however, is not so easy. It becomes necessary, in reaching the answer, to consider the appellate procedure in Workmen’s Compensation cases under the old law and under the new law.

The old law (§4123.51 R. C.) provided for an appeal by an employee only. Such appeal came after a rehearing and was later determined upon the record of that rehearing. The appeal was required to be filed “within sixty days after receipt of notice of such action of Commission.” It was effected by filing “a petition in the Court of Common Pleas” and upon which “summons shall be issued to the Commission and also to the Attorney General” or “to such employer” if the latter be a “self insurer.”

The issues were then made by filing an answer to the petition; and “within ten days after” filing the answer a “transcript of * * * such rehearing” before the Commission should be filed. The case then was determined upon the rehearing record only, less elimination of received incompetent evidence or plus receipt of previously eliminated evidence.

Beyond the foregoing the old law provided that “further pleadings shall be had in accordance with the rules of civil procedure.”

The new law, §4123.51 R. C., became effective October 5th, 1955. It allows an appeal to the Common Pleas Court from a “decision” (as distinguished from “action”) of either the Industrial Commission or of “a regional Board” from which an appeal to the Commission has been refused by the latter. Such appeal to the Court shall be commenced, if not also effected, by notice of appeal which shall state “names of claimant and the employer, the number of the claim, the date of the decision appealed from and the fact that the appellant appeals therefrom.”

The notice of appeal in this case covers all required factors except date of decision. Instead it recites the date of an or the “order” appealed from.

After notice of appeal is received by the Commission the latter causes notice to be given “to all parties who are appellees.” Thereafter “Further proceedings shall be had in accordance with the rules of civil procedure” (as distinguished from the old law which recites “further pleadings shall be had in accordance with the rules of civil procedure;”) and the Court, if a jury is not demanded, or the jury, if demanded, shall determine claimant’s rights of participation in the fund.

The foregoing procedure under the new law applies to all decisions made after October 5th, 1955, the effective date of this amended law.

The foregoing appeal procedure also applies to claims pending before the Commission upon rehearing on October 5th, 1955.

Claims denied “within 30 days prior to” October 5th, 1955, shall be deemed pending on appeal under §4123.516 E. C. to either the Workmen’s Compensation or to a regional Board of Review, and the Commission’s decision thereon may be appealed to the Court.

Any claim pending on rehearing before the Commission shall be deemed to be pending before the Commission on appeal under §4123.516 R. C. from which presumably an appeal may be taken to Court.

Any appeal pending in the Common Pleas on appeal under the old law and any “claim * * * denied within 60 days” before October 5th, 1955, “shall not be affected by the repeal” of the old appeal section. Conversely, the old section respecting appeals applies in these situations.

Summarizing, it may be stated that appeals—

:I. Under the old law may be taken to the Court—

1. If done by employee claimant only;

2. If a rehearing precedes the Court appeal;

3. If effected by—

a. The filing of a petition;

b. Transcript of rehearing proceedings;

4. If the appeal hearing is conducted—

a. Upon the pleadings and such “further pleadings” which shall be “in accordance with the rules of civil procedure.”

b. And upon evidence, plus or minus that received or not received; contained in the transcript but not supplemented by additional oral evidence.

5. If the cases were pending on appeal on October 5th, 1955, or if a claim had been denied upon rehearing within 60 days prior to October 5th, 1955.

II. Under the new law appeals may be taken to Court—

1. In cases decided after October 5th, 1955; upon claims pending on or filed after October 5th. 1955; and upon claims which have been denied by the Commission within 30 days before October 5th, 1955, regardless of whether rehearing has been requested.

2. By either employee or employer (Commission):

3. Via intermediate appeal, in some cases through the Regional Board of Review;

4. Upon filing of a notice of appeal (rather than a petition);

5. The appeal hearing is conducted—

a. Upon notice of appeal (no provision is made for pleadings);

b. Upon evidence adduced de novo in accordance with rules of civil procedure.

What does the expression in the new law “in accordance with the rules of civil procedure” mean? Does it include pleadings? Since the new law does not refer to “pleadings in accordance with the rules of civil procedure” as in the old law, but refers only, after notice of appeal, to further proceedings in accordance with the rules of civil procedure, it appears to follow that the notice of appeal is the only pleading, so-called, and that thereafter the trial shall be in accordance with the rules of civil procedure (i. e., not on a transcript of oral testimony and of other evidence).

Parenthetically speaking, an employee on appeal might supply a petition. What, however, may an employer or the Commission supply? A pleading-answer is of value only if there is a pleading-petition to which there needs to be a response. An employer never would be permitted to furnish the petition or complaint for the employee.

It seems, therefore, that the legislature intentionally omitted reference to and the need for any pleadings beyond or after notice of appeal in connection with the appeal under the new law.

Furthermore pleadings are contained in a chapter (§2309 et seq. It. C.) separate from evidence (§2317 R. C.) or trial procedure. (§2315 et seq. R. C.)

Whether the rules of civil procedure encompass pleadings and evidence, parties, etc., or only trial procedure under §2315 R. C., may be generally debatable.

It would appear therefore that the notice of appeal is the only paper essential to bring the case to the Common Pleas Court for hearing in accordance with “trial procedure” and now used by the writer as synonymous with civil procedure. If this conclusion is correct, then after the employer, as in this case, files his notice of appeal, he will be required at trial to produce his evidence first, because §2315.01 (C) R. C., provides that “the party who would be defeated if no evidence were offered on either side, first, must produce his evidence, and then the adverse party must then produce his evidence.

The notice of appeal is the only pleading in this case. It recites an appeal “from an order” rather than from “the decision” of the Industrial Commission and fixes the date as October 11, 1955.

The motion of claimant-appellee in the form and substance as presented, is denied; but, the motion in substance is granted. The appellant will be required in his order to state the date upon which the decision was made from which the appeal was made; and the appellant will be allowed to substitute in the notice of appeal the words “the decision” for the words “an order.”

The effort has been to construe §4123.51 R. C., to make it operative and carry out the general objective of appeals to the Court by employers (Commission) as well as employees. Trial courts over the state should adopt rules for pleadings within a stipulated time after the filing of the notice of appeal.

Unfortunately these new provisions for appeal are in many respects vague and indefinite. The reviewing courts on proper presentation of the question might reach the conclusions §4123.51 R. C., is so vague and indefinite as to be inoperative and unconstitutional.


author: By HANNA, J.

text:
    CRUM, Plaintiff, v. HOWARD, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 672704.
    Decided February 1, 1956.
   OPINION

By HANNA, J.

This cause is before the Court on the demurrer of the defendant to the petition of plaintiff urging that this Court does not have jurisdiction of the subject matter of the action.

The jurisdiction of the Court is that power conferred upon it by law to hear and determine a cause. It includes both jurisdiction of the subject matter of the action and jurisdiction of the litigants.

Defendant by his demurrer has challenged the right of this tribunal to entertain the petition which plaintiff files against him or to make any valid order with respect to the relief sought.

Plaintiff’s petition alleges in substance that when she and the defendant were divorced in a proceeding had in the Circuit Court of Martin County, Kentucky, the decree of the Court made no provision for the custody of their minor children. She has petitioned the Court of Common Pleas of this County to award her “full, complete, exclusive and permanent custody” of the children.

It is essential to the exercise of jurisdiction in any cause that the subject matter of the action — the right asserted and the relief sought— must be such as falls within the cognizance of the Court as fixed by the Constitution and the laws. II O. Jur. 622. Article IV, Section 4, of the Constitution of Ohio provides:

“The jurisdiction of the Courts of common pleas and of the judges thereof shall be fixed by law.”

Although this language hardly permits of misunderstanding, the Supreme Court of Ohio was called upon to consider it in the case of Mattone v. Argentina, 123 Oh St 393, in which the Court stated:

“Syl. 1. — -In this State, pursuant to constitutional provisions, Article IV, Section 4, the jurisdiction of the Common Pleas Court is fixed by legislative enactment.”

The jurisdiction of the Common Pleas Court in actions for divorce is conferred by §3105.01 R. C., the pertinent part of which reads:

“The court of common pleas may grant divorces for the following causes: * *

Jurisdiction in actions for alimony is granted by §3105.18 R. C., which reads in part:

“The court of common pleas may allow alimony as it deems reasonable to either party * *

Were this an action for divorce or alimony, the Court of Common Pleas would have jurisdiction to make a valid order as to the custody of the children of the marriage. This jurisdiction is conferred by §3105.21 R. C., which reads:

“Upon satisfactory proof of any of the charges in the petition for divorce or for alimony, the court of common pleas shall make such order for the disposition, care, and maintenance of the children of the marriage, as is just, and in accordance with §3109.04 R. C.”

However, the petition in this case contains no prayer either for divorce or alimony and we are constrained to hold with the Court of Common Pleas of Lawrence County which in Cable v. Cable, 70 Abs 187, determined that:

“this court has no jurisdictiori to make any order respecting the care and custody or visitation with minor children unless in the prayer Of the petition the plaintiff asks for a divorce or alimony.”

Such reasoning is consistent with the legislative trend toward enlarging the Juvenile Court’s jurisdiction in dealing with juveniles. It is likewise indicative of such trend that the legislature has provided the means whereby courts other than the Juvenile Court having jurisdiction over juveniles may certify the record of its proceedings in a case to the Juvenile Court which shall thereupon have exclusive jurisdiction. See §3109.04 and §3109.08 R. C.

We are of the opinion that any order made by this Court under the allegations of the petition would transcend the limits which the law prescribes and would be an invasion of the jurisdictional powers conferred by statute on the Juvenile Court in respect of custody of children.

Sec. 2151.23 R. C. provides inter alia:

“(A) The juvenile court has exclusive original jurisdiction under the Revised Code:
“(1) * * *.
“(2) To determine the custody of any child not a ward of another court.
“(3) * *

This statute is fully discussed and interdependency of its three subsections examined by the Supreme Court in the recent case of In re Tor ok, 161 Oh St 585. In this ease separate orders and judgments of the Juvenile Court were before the Supreme Court by reason of the allowance of motions to certify. One of these judgments found the appellees guilty of contempt for failure to deliver the child to the mother as ordered by the Court. The substantive question of law presented to the Supreme Court was whether the Juvenile Court lacked jurisdiction to determine the right of custody of the child in view of the decision that the child was neither neglected nor dependent. It is clearly and simply stated in the Syllabus that:

“(1) Under the provisions of §1639-16 GO (§2151.23 R. C.), the Juvenile Court is invested with original jurisdiction to determine the custody of any child not a ward of another court.
“(2) In order to determine such right of custody, it is not necessary for the court to find first that such child is delinquent, neglected, dependent, crippled, or otherwise physically handicapped.”

In an appeal from a judgment of the Common Pleas Court dismissing a petition in habeas corpus involving the same child as In re Torok, 161 Oh St 585, the Court of Appeals for Cuyahoga County in 93 Oh Ap 251, had before it for consideration the same question in a case entitled In re Lorok (sic) and the second syllabus of that case reads:

“Under the provisions of §1639-16 GO, the Juvenile Court is given original jurisdiction in a proper proceeding to determine the right of custody of any child where such child is not a ward of another court, and it is not necessary in the exercise of such jurisdiction that the juvenile court first determine that such child is a dependent, neglected or delinquent child as defined by §§1639-2, 1639-3 and 1639-14 GC.”

With these clear expressions by the Court of last resort of this State and the Court gf Appeals of this District, of the principle that- the Juvenile Court has exclusive original jurisdiction under the law to determine the custody of any child not a ward of another court, we are impelled to hold that the demurrer of defendant challenging the jurisdiction of this Court over the subject matter of the action alleged in plaintiff’s petition should be sustained.


author: By NICHOLS, PJ.

text:
    TRINITY UNIVERSAL INSURANCE COMPANY, Plaintiff-Appellant, v. PURE OIL COMPANY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5266.
    Decided November 18, 1955.
    Wiles & Doucher, Columbus, for plaintiff-appellant.
    Sebastian, Fais & Durst, Columbus, for defendants-appellees.
    (NICHOLS, PJ, GRIFFITH, J, of the Seventh District, and FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By NICHOLS, PJ.

This action was instituted in the Municipal Court of the City of Columbus wherein the plaintiff recovered judgment against the defendants for damages occasioned to the automobile of one Clarence Hedrick v/hile it was parked in a shed located on real estate owned by the Pure Oil Company and leased by it to the defendant, Martin A. Michel who operated thereon a filling station at which products of Pure Oil Company were advertised and sold.

The defendant, Pure Oil Company, had filed a demurrer to the amended petition of the plaintiff which demurrer was overruled by the Municipal Court and the case was tried therein to the Judge without a jury upon such amended petition, the separate answers of the defendants and the evidence. At the request of the defendants the Municipal Court made separate findings of fact and conclusions of law upon which defendants’ judgment was rendered. On appeal on questions of law to the Common Pleas Court of Franklin County that judgment was reversed and final judgment entered for the defendants, from which judgment appeal has been duly prosecuted to this Court of Appeals upon questions of law. Trinity Universal Insurance Company is the subrogee of Clarence Hedrick, owner of the damaged automobile which was damaged on the 8th day of July, 1950, while it was parked in a shed on the filling station premises. On oral arrangement only between Hedrick and Michel, Hedrick was permitted to park his auto on such premises after the filling station closed for business each evening until eight o’clock the following morning. For such privilege he paid Michel $3.00 a month.

As a matter of law there is no basis for a recovery against the Pure Oil Company in this action and the demurrer interposed by that company to the amended petition of plaintiff should have been sustained under authority of James R. Burdick v. Gilman Cheadle, 26 Oh St 393, a leading case in Ohio which has been consistently followed by our Supreme Court. In the instant case Pure Oil Company was out of control of the premises leased by it by Michel, and the fact that its products were advertised and sold on such premises by the lessee did not amount to control of the shed wherein Hedrick’s car was parked at 'the time it was damaged. Arrangements for the parking of Hedrick’s automobile were entered into solely between Hedrick and Michel, as clearly alleged in the amended petition of plaintiff as well as by the evidence in this case, there being no allegation thereof that Pure Oil Company had any control of the premises at the time the roof over the shed where Hedrick’s car was parked fell and damaged it.

The question of liability of the defendant, Michel, depends upon the relationship existing between Hedrick and Michel at the time the shed roof fell in and damaged Hedrick’s car. If that relationship was one of bailor and bailee the judgment against Michel should be sustained. If that relationship is one of lessor and lessee Michel is not liable for the damages to Hedrick’s car in the absence of any proof of any duty upon the part of Michel to keep the shed in repair, and in the absence of any proof that Michel was guilty of negligence causing the roof to fall.

An examination of the evidence contained in the record discloses beyond question that Hedrick’s rights amounted only to the privilege of parking his auto in the shed, the roof of which fell in. Hedrick had at all times kept control of his car, placed the same in the shed, locked the car, retained the keys thereof and removed it at his pleasure each morning during a period of three years, Michel never having had custody or control of the car, had no keys for it, never parked it, and never removed it from the premises. Hedrick testified that he parked the car after the filling station was closed; that he did not have to park it at any particuluar place, but could park it any place that was open, that he locked the car and kept the keys; that he did not give the keys to Michel or anybody at the station; that he had the only keys to the car.

The Common Pleas Court found that the relationship between Hedrick and Michel was not that of bailor and bailee; that the cited case of Agricultural Ins. Co. v. Constantine, 144 Oh St 275, has no application to the facts of this case. The Common Pleas Court further found there was no evidence of negligence on the part of the defendants and accordingly reversed the judgment of the Municipal Court and rendered final judgment for the defendants. With the findings and judgment of the Common Pleas Court we are in accord and make reference to the thorough opinion rendered by Harter, Judge.

The judgment of the Court of Common Pleas is affirmed.

GRIFFITH and FESS, JJ, concur.


author: By CONN, J. By CONN, J.

text:
    CLARK et, Plaintiff-Appellee, v. HIATT et, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 525.
    Decided November 12, 1955.

      William E. Bailey, Bayley, Meals & Taggart, Springfield, for plaintiffappellee.
    McKee & Schwer, Springfield, Wiles & Doucher, Columbus, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By CONN, J.

Upon the trial of this case in the court of common pleas, the jury returned a verdict for plaintiff in the sum of $7,700.00. Judgment was entered on the verdict and defendant appeals to this court.

Plaintiff in his amended petition alleges that he is a minor, 19 years of age and brings this action by Charles A. Clark, his father and next friend.

For cause of action, against defendant, plaintiff says that State Route No. 70 is a public highway running northwest and southeast between Springfield and S. Charleston, Ohio, and for at least four miles southeast of Springfield it is a smooth, macadam surfaced, two-lane highway.

That defendant is a minor, 19 years of age; that on the night of December 20, 1953, plaintiff was a passenger in the rear seat of a 1952 Oldsmobile sedan, being driven by defendant; that Jack Gaier, Jr. at said time was also riding in the rear seat and Edmond Rice was on the right front seat.

That defendant thereupon drove his auto, so occupied, from Springfield southeasterly on said State Route No. 70 towards South Charleston; that said highway was not lighted and there was snow on the ground adjoining the highway.

Plaintiff further alleges that defendant alternated the speed of his automobile between fast and slow to induce a race with another automobile immediately following; that defendant proceeded at a high rate of speed, to wit: 70 miles per hour, passing another vehicle and crossing the tracks of the new New York Central Railroad as a train was approaching; that defendant increased his speed in excess of 80 miles per hour, passing the point where said highway is entered by Titus Road; that at this point said road is narrow, “high crowned, bumpy, smooth surfaced, and makes a turn to the left” at which point defendant lost control of his automobile, which continued southeasterly, partly on the berm, a distance of 215 feet, colliding with an automobile parked on the west side of the berm and thereafter travelled a further distance of 90 feet, stopping partly on the berm and throwing all the occupants out of defendant’s automobile and injuring plaintiff.

Plaintiff’s injuries set forth in detail were of a serious and permanent character; that plaintiff incurred large expenses for medical and hospital services, sustained lost wages, and was damaged in the total sum of $27,543.82, for which he prays judgment.

The defendant, by his guardian ad litem, admits that on said date the 1952 Oldsmobile was driven by him; that plaintiff was a passenger in the rear seat of his automobile; and for further answer denies all the material allegations therein prejudicial to defendant.

This action is brought under the guest statute (§4515.02 R. C.) and is predicated on the claim that the wanton misconduct of defendant was the proximate cause of plaintiff’s injury and damage.

The evidence is voluminous. It is not practical here to give a detailed recital. On one or more material issues of fact, the evidence is in conflict. Plaintiff’s evidence tends to support the allegations in his petition that defendant operated his automobile at an excessive rate of speed as he drove from the city of Springfield to the place in the highway where defendant lost control of his automobile. One of plaintiff’s witnesses, who was following defendant’s automobile, testified that he observed the tail lights on defendant’s automobile began to swerve as he rounded the curve south of Titus Road.

The State Patrolman who arrived at the scene of the accident quite promptly, testified that from his inspection of the premises he estimated the speed of defendant’s automobile prior to the collision at 65 miles an hour and up, with a maximum of 35 miles an hour. This witness also stated that the travelled portion of the road was dry; that snow had drifted almost entirely across the road at one point about 150 feet westerly from Titus Road; at this point, the drift was a car and a half or two car lengths long; that the road was slippery and at this point defendant’s automobile went out of control, and that from this time on, defendant’s car was out of control until it finally came to rest.

This witness also testified that defendant’s car was out of control before he came to the curve and that the paved portion of the road at this point was 20 feet wide.

The defendant testified that the road was dry; that he drove his automobile 50 to 55 miles per hour from the time he had crossed the railroad tracks to the scene of the collision; that he lost control of his automobile at a point in the road where there was snow and ice just before he reached Titus Road; that his automobile started sliding and collided with an automobile parked on the berm. Defendant also testified that he did not race with any other automobile and that no one riding in his car protested his manner of driving.

Defendant’s testimony was corroborated by Edward Rice, who rode in the front seat, as to defendant’s manner of driving and speed; that defendant did not race and that in the vicinity of Titus Road defendant’s automobile started skidding; that defendant straightened his car up and it continued skidding, with the front of the car pointed to the lefthand side of the road, and then it slid into a parked automobile.

The principal conflict in the evidence relates to speed and the place where defendant lost control of his automobile.

The jury returned a general verdict for plaintiff and also returned answers to interrogatories on questions of fact submitted to it by defendant. The trial court entered judgment for plaintiff as above indicated.

Defendant’s assignments of error (somewhat abridged) are:

“1. The court erred in overruling defendant’s motion for a directed verdict at the close of plaintiff’s case and at the close of all the evidence, and also erred in overruling defendant’s motion for judgment notwithstanding the verdict and entering judgment for plaintiff.
2. The court erred in failing to give special instructions requested by defendant before argument and erred in the court’s general charge to the jury; also in failing to further instruct the jury as requested by counsel for defendant and in overruling defendant’s motion for a new trial.”

1. Upon the overruling of defendant’s motion for a directed verdict at the close of plaintiff’s case, defendant introduced evidence in his own behalf. In so doing, the alleged error was waived and that issue cannot be raised on this appeal.

The overruling of defendant’s motion for a directed verdict at the close of all the evidence and the issue raised deserve careful study. Defendant’s motion is predicated on two grounds: first, the amended petition does not state a cause of action against defendant, and, second, the facts disclosed by the evidence do not constitute wanton misconduct on the part of this defendant.

The sufficiency of plaintiff’s petition was not raised before trial, by demurrer or otherwise. This does not preclude defendant raising this issue later.

Thomas v. Foody, 54 Oh Ap 423; Bozzelle v. Ind. Comm., 122 Oh St 201; Young v. Featherstone Motors, Inc., 97 Oh Ap 158.

The rule is well established that the plaintiff in this action must plead facts that expressly reveal the element of wantonness. Mere acts or omissions, though violative of statutory or common law duties, do not provide a basis for wanton misconduct.

Murphy v. Snyder, 29 Abs 59; Starr. Admx. v. Gebhart, 71 Abs 33.

We first call attention to the case of Reserve Trucking Co. v. Fairchild, 120 Oh St 519. This case was decided following the enactment of the guest statute, but the cause of action arose prior to its enactment. In its opinion, the court defines a wanton act as:

“* * * implying the failure to exercise any care for the safety of those to whom a duty of care is owing when the wrongdoer has knowledge of the great probability of harm to such persons, which the exercise of care might avert, and exhibiting a reckless disregard of consequences.”

Unfortunately, the court in the Fairchild case used the phrase “wanton negligence,” as in the earlier case of Higbee Co. v. Jackson, 101 Oh St 75. However, in the later case of Universal Concrete Pipe Co. v. Bassett, 130 Oh St 567, the court pointed out that the term “wanton negligence” is a misnomer and its use unwarranted.

In the Bassett case; the Supreme Court again defined wanton misconduct, as follows:

“Wanton misconduct is such misconduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that a party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probablity result in injury.”

As we read the later cases in the Supreme Court, it appears that wanton misconduct is defined in substantially the same manner as was done in the Fairchild and Bassett cases. We do not believe that the Supreme Court intended to modify or add to the definition of wantonness by the use of the now famous phrase “manifests a disposition to perversity” or that wantonness is a synonym for “cussedness,” which term is defined as manifesting a disposition to willful perversity. However, see Major v. Liggett, 72 Oh Ap 71.

It should be noted that the court did not say that “wanton misconduct” was perverse misconduct, a phrase defined as being “willfully disposed, perverted or wicked.” In other words, the distinction between willfulness and wantonness remains unaltered. Cases in tort arising opt of the misuse of public highways may be grounded on negligence, wanton misconduct or willful misconduct. The boundary lines are well defined and there is no blending, such as the colors of the rainbow appear to do.

Even if it were assumed that plaintiff’s amended petition could have been successfully attacked before the case was at issue, it is our opinion that the evidence tends to supplement plaintiff’s pleading to such an extent that a jury question is raised, having particular reference to that evidence (though somewhat meager and conflicting), which tends to show that defendant lost control of his car at the bend in the road of which curve defendant had prior knowledge.

In passing on defendant’s motion for judgment, this court may not weigh the evidence. McNees v. C. St. Ry. Co., 152 Oh St 269; Jenkins v. Sharp, 140 Oh St 80.

We conclude that the trial court did not err in overruling defendant’s motion for a directed verdict.

If we are right in not sustaining defendant’s assignment of error on the ground that a jury question was presented at the close of all the evidence, then it follows that the trial court did not err in overruling defendant’s motion for judgment non obstante veredicto; unless, as contended by defendant, the answer to the second interrogatory is irreconcilably inconsistent with the general verdict, in which event it was the duty of the trial court to set aside the verdict of the jury.

The defendant requested the trial court to submit two interrogatories to the jury, as follows:

“1. Does the jury find by a preponderance óf the evidence that the defendant at or immediately prior to the accident was guilty of wanton misconduct?”
(Answer) “Yes.”
“2. If your answer to interrogatory No. 1 was ‘yes,’ then state of what acts or omissions of the defendant such wanton misconduct consisted.”
(Answer) “Complete disregard for Ohio highway speed law and wanton disregard of safety conditions prescribed by Ohio law pertaining to secondary highways.”

The reported cases hold that it is the duty of the trial court to reconcile, if possible, the answers to interrogatories with the general verdict. If this can be done, then the general verdict will stand.

Klever v. Reid Bros. Express Co., 151 Oh St 467; McNees v. Cinc. St. Ry. Co., 152 Oh St 269.

In our procedure, the rule is well established that the interrogatories should elicit ultimate facts of probative character as will test the correctness of the general verdict, or at least find probative facts from which ultimate facts, as a matter of law, may be inferred. Furthermore, where there is no finding of probative facts of an ultimate character, it is inferrable that such failure is due to the insufficiency of the evidence.

Kennard v. Palmer, 143 Oh St 1; Masters v. N. Y. Central R. Co., 147 Oh St 293; Bradley v. Rapid Transit, 154 Oh St 154; Johnson v. Gernon, Jr., 91 Oh Ap 529; Miljak v. Boyle, 93 Oh Ap 169.

As already pointed out, there is evidence of some probative value that tends to show that the curve in the road was the place where defendant lost control of his automobile. Under the rule of liberal construction, which we must apply, it is our opinion that the ultimate facts found are not wholly irreconcilable with the general verdict, and that the trial court did not err in overruling defendant’s motion for judgment.

Defendant assigns as error the refusal of the trial court to give the jury before argument defendant’s request No. 2. This requested charge is lengthy and somewhat cloudy. An examination of its contents discloses that it is a discussion of a number of rules of law related to wanton misconduct rather than a clear and concise rule that the jury could apply. Also that it would in all probability confuse the jury by reason of its abstract character. We find this assignment is not well taken.

In its general charge to the jury, the court read the pleadings and the statutory provisions of the Guest Act, limiting the right of a guest passenger in an automobile to recover damages for injuries proximately caused by the willful or wanton misconduct of the operator or owner of such vehicle.

The plaintiff, before the arguments of counsel, requested the court in writing to instruct the jury on the law of Ohio relating to speed, assured clear distance ahead and that speed of 50 miles per hour is prima facie unlawful. The jury was so charged over the objection of defendant.

In its general charge to the jury, the court again brought to the jury’s attention the provisions of the same speed statutes, after reading plaintiff’s petition and the averments of excessive speed of the automobile of defendant.

Thereafter, the court called the jury’s attention to the provisions of the Guest Act and also defined wanton misconduct in approved form. However, it does not appear that the court charged the jury that operating an automobile at an excessive rate of speed does not, in and of itself, constitute an act of wantonness. Furthermore, the jury was not fully instructed as to the application of the evidence to the issues raised on plaintiff’s petition, particularly in relation to the speed statutes, as an aid to the jury in arriving at a verdict on the evidence and the law. Akers v. Stine, 136 Oh St 245.

Following the general charge, the defendant requested the court to charge the jury that neither speed, absence of ordinary care, bad judgment or the violation of safety statutes, alone, are sufficient to constitute wanton misconduct. This request was refused.

The court’s attention was directed to its frequent use of the phrase “willful and wanton misconduct” throughout the general charge, and counsel for both plaintiff and defendant pointed out that no claim is made of any willful misconduct on the part of defendant. The court thereupon undertook to clarify the court’s language on that point, and concluded its statement as follows:

“* * * and I think what we have said to the jury pertaining to the willful and wanton misconduct can be applied and construed as to either willful or wanton misconduct.”

In our opinion, the defendant was prejudiced by reason of the failure of the trial court clearly to define the issue and its refusal upon request to instruct the jury fully in the matter of the application of the evidence in this case to the issues raised on the pleadings, and that the judgment of the trial court should be reversed and the cause remanded for a new trial.

Decided January 6, 1956.

MILLER, PJ, HORNBECK, J, concur.

No. 525.

OPINION

By CONN, J.

Defendant-appellant has filed an application for rehearing and reconsideration of the decision of this court, previously announced, on the ground that the court should have entered final judgment for defendant-appellant. The application is supported by an exhaustive and carefully prepared brief.

It is appellant’s contention that the decision is erroneous and further that it is contrary to the prior decisions of this court and other courts of appeal, and also the supreme court.

We have re-examined the opinion and decision of this court to determine whether or not this sweeping premise is well taken. The following summation will set forth the court’s conclusion and the basis upon which is rests.

In the first instance, it may be observed that the issue here is not raised by a demurrer to the petition or by a motion for judgment on the pleadings. Furthermore, there is no line of demarcation between the contention of appellant, relative to what acts, on the part of an operator of a motor vehicle, constitute wanton misconduct under the reported cases in Ohio, and the consideration given the same subject matter in the instant case, as appears in the court’s opinion.

The application before us is grounded on two of the issues heretofore raised on the record, and presented on the original hearing, to wit: that the trial court erred in overruling appellant’s motion for a directed verdict and his motion for judgment notwithstanding the verdict.

It appears to be appellant’s claim that “knowledge of only, one condition, which was the bend in the road,” is an insufficient fact situation upon which to predicate wanton misconduct on the part of the defendant, in the absence of other conditions which were set forth in plaintiff’s petition.

When defendant made his motion, at the close of all the evidence, for a directed verdict, and subsequently his motion for judgment notwithstanding the verdict, the trial court was required to construe and apply the evidence, and the inferences that arose thereon, most strongly in plaintiff’s favor, and after doing so, if the court could find that “reasonable minds can come to but one conclusion and that conclusion is adverse” to the party against whom the motion is directed, then such motion must be sustained. (Hamden Lodge case, 127 Oh St 469.)

However, after a reconsideration of the issues raised by defendant’s motions, and without again setting forth the basis of our conclusions, we are of the opinion that reasonable minds may reach different conclusions upon the evidence and that the fact issues presented were for the jury. On this thesis, the motions for judgment were properly overruled by the trial court.

Relative to the claim that the jury’s finding on the special interrogatories was irreconcilable with the general verdict, we incorporate herein, by reference, what was said on this issue in the court’s opinion and the consideration given therein.

Therefore, the court re-affirms the conclusion previously reached that the trial court did not err in finding that the answers of the jury to the interrogatories submitted were not irreconcilable with the general verdict and that said court did not err in overruling defendant’s motion for judgment.

It may be said that the issues presented on the record of this case, and again raised on appellant’s application, are of serious import and not free from difficulty. However, it is the conclusion of the court, that the decision previously announced in this case, should be re-affirmed.

Appellant’s application for rehearing is denied.

MILLER, PJ, HORNBECK, J, concur.


author: By MARTIN, Circuit Judge.

text:
    PENNSLYVANIA RAILROAD COMPANY, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12355.
    Decided October 19, 1955.
    John W. Hackett, Jr., Robert B. Gosline, Toledo, on the brief; Shumaker, Loop & Kendrick, Toledo, of Counsel, for appellant.
    Wayne E. Stichter, Erwin R. Effler, Jr., Toledo, on the brief; Effler, Eastman, Stichter & Smith, Toledo, of Counsel, for appellee.
    Before ALLEN, MARTIN and STEWART, Circuit Judges.
   OPINION

By MARTIN, Circuit Judge.

The Pennsylvania Railroad Company has appealed from an order of the United States District Court adjudging that there is no legal obligation upon the Travelers Insurance Company, under a certain policy of insurance, to defend on behalf of the railroad company against claims asserted against the carrier by two of its employees, Cook and O’Hara. The order adjudged further that there is no duty or obligation upon the insurance company to pay, in whole or in part, any judgment that these two employees may recover against the railroad company for damages sustained by them arising out of a bus accident on October 8, 1951, or any costs or expenses incurred by the railroad company in connection with its defense or settlement of the claims.

Cook and O’Hara brought separate actions against the Pennsylvania Railroad Company under the Federal Employers’ Liability Act, 45 U. S. C. A. §51 et seq. They allege that, at the time of their injury, they were performing their duties with the repair and maintenance crew of the railroad company. The carrier filed third-party complaints against an individual, L. A. West, and the Travelers Insurance Company. A contract was in existence between West and the railroad company, under which West agreed to procure and maintain automobile liability insurance on vehicles leased by him to the railroad company during specified operations which were under way at the time of the accident. The pertinent clause of this policy of insurance provided, inter alia, that the Travelers would pay, on behalf of the railroad company, all sums which the carrier should become legally obligated to pay as damages resulting from bodily injury caused by accident sustained by any of the railroad company’s employees “while being transported to or from work in or on any vehicle insured” under the policy.

Vehicles insured under the policy were buses and trucks owned by L. A. West and leased by him to the Pennsylvania Railroad Company. The bus involved in the accident in which Cook and O’Hara were injured was included in the coverage of the policy and was in possession of the railroad company and operated exclusively by it and its employees.

On October 8,1951, Cook and O’Hara, and other supervisory personnel, were quartered at a railroad camp site at Bucyrus, Ohio. The rest of the track maintenance and repair crew was quartered at a railroad camp site at Upper Sandusky, Ohio. For several months prior to and inclusive of that date, Cook had been acting as camp overseer. His duties included general maintenance and repair of camp cars, preparation of noon lunches for supervisory personnel, and driving of busses. For a like period, O’Hara had performed miscellaneous duties, including those of track repairman, bus driver, and machine operator. During the same interim, Klinefelter had served as general foreman of the track maintenance and repair crew, and in that capacity, was authorized to assign members of the crew to particular duties.

Before October 8, 1951, the date of the accident, the two railroad camps had been moved respectively from Dunkirk to Upper Sandusky, and from Ada to Bucyrus. The camp at Upper Sandusky was located on the railroad right-of-way and embraced some railroad cars which were used as living quarters for the crew. Other cars were used for kitchen and dining purposes. Wooden frames and screens had been constructed and used between the dining cars and the kitchen cars at the Dunkirk camp site. When the cars were moved from Dunkirk to Upper Sandusky, this screening equipment was dismantled and removed. Upon establishment of the camp at Upper Sandusky, it was observed that the wooden frames and the screening equipment were missing.

On the morning of October 8, Cook and O’Hara reported for work at the Bucyrus camp site. From there, they proceeded in buses owned by West and leased to the railroad to the Upper Sandusky camp site, where each picked up labor personnel housed there and drove the workers to the job site a mile and a half or two miles away.

After the laborers had been transported to the job site, General Foreman Klinefelter ordered Cook and O’Hara to drive one of the leased buses to the former camp site at Dunkirk to pick up the wooden frames and the screening equipment left there and bring them to the camp site at Upper Sandusky, and to install them between the kitchen and dining cars at the new camp site. O’Hara was ordered to accompany Cook on the trip and to assist in the performance of the work assignment. The two men proceeded directly to Dunkirk, with Cook driving the bus. On arriving there, they did not find the screen equipment, but did find air hoses, pipe couplings, and pipe fittings, all of which were placed in the bus for use in the repair and maintenance of the new camp. With Cook at the wheel, the two men then started in the bus by the most direct route to the Upper Sandusy camp site. At about ten-thirty o’clock in the morning, while they were thus riding, Cook and O’Hara were injured in a road-way accident.

After conducting a hearing, at which evidence was received, the district court, in an oral opinion delivered from the bench, decided that at the time of the accident Cook and O’Hara were not being transported to or from work within the meaning of the Travelers Insurance Company policy covering the liability of the Pennsylvania Railroad Company. The judge stated that, if the men had been injured while being transported in the bus from Bucyrus to Upper Sandusky, where they were to go to work early that morning, the policy would have covered; but that, at the time of the accident, they were “at work” and were not being transported to or from work.

We think this finding is clearly erroneous. By his holding, the district judge construed the ambiguous terms of the policy strictly in favor of the insurer rather than in favor of the insured, as the law demands where there is ambiguity in a policy of insurance. In Bobier v. National Casualty Co., 143 Oh St 315, 38 O. O. 138, 54 N. E. (2d), 798, an excellent and soundly reasoned opinion was written by Judge Bell stating the principle that in case of ambiguity in the language used by the insurer in an indemnity insurance policy, the language will be construed most favorably to the insured. In the third syllabus to this case, the Supreme Court of Ohio held that, where an insurer “drafts and issues an automobile indemnity policy, providing therein for insurance against liability resulting from injury to or destruction of property, arising out of the ownership, maintenance or use of an automobile including loading and unloading thereof, but fails to define in the policy what shall constitute ‘loading and unloading,’ such phrase is ambiguous and will be given the construction most favorable to the insured.” See also American Policyholders Insurance Co. v. Michota, 156 Oh St 578, 46 O. O. 476, 103 N. E. (2d), 817. This court has said: “If two constructions may reasonably be employed, the courts uniformly enforce the one favorable to the assured.” [Citing cases.] Preferred Acc. Ins. Co. v. Rhodenbaugh (6 Cir.), 160 F. (2d), 832, 836.

It is important to observe that the Supreme Court of Ohio has held that the “duty of a liability insurance company under its policy to defend an action against its insured is determined from the plaintiff’s petition, and when that pleading brings the action within the coverage of the policy of insurance, the insurer is required to make defense regardless of its ultimate liability to the insured.” Socony Vacuum Oil Co. v. Continental Casualty Co., 144 Oh St 382, 29 O. O. 563, 59 N. E. (2d), 199 (first syllabus). See also Bloom-Rosenblum-Kline Co. v. Union Indemnity Co., 121 Oh St 220, 167 N. E., 884; and London Guarantee & Accident Co. v. Shafer (D. C. S. D. Ohio), 35 P. Supp. 647, citing the Ohio authority just mentioned.

Apparently, the district judge considered that the words in the policy, “to and from work,” meant a specific trip in the bus from the camp site to the job site. These words, however, are not defined in the policy; and the interpretation given them by the district court would, in our opinion, be strictly against the insured and in favor of the insurer. If the insurer had intended the limited construction, it should have put definitive words into the policy issued by it. The trial court based its interpretation of the policy terms upon the fact, as it stated, that Cook and O’Hara were already “at work” at the time of the occurence of the accident and that they could not be going to and from work if they were actually “at work.” If this were a correct interpretation, there would be small coverage supplied the Pennsylvania Railroad by the policy, for its employees could just as reasonably be said to be “at work” when they boarded the buses at the Bucyrus camp site.

We think that the correct interpretation of the policy is that, when making the trip to Dunkirk, they were traveling in the bus to a job site and that, when making the return trip from Dunkirk to Upper Sandusky, they were making the trip from one job site to another. Such interpretation conforms to the accepted rule of liberal interpretation which has been discussed. We have been referred to no authority construing the phrase, “being transported to or from work,” but we think, as appellant contends, that the following cases, decided by the Supreme Court of Ohio or by this court, support the conclusion which we have reached. Wood v. Vena, 147 Oh St 91, 100, 101, 33 O. O. 264, 68 N. E. (2d), 80; Leonard v. Murdock, 147 Oh St 103, 108, 109, 33 O. O. 269, 68 N. E. (2d), 86; Mitchell v. Great Eastern Stages, Inc., 140 Oh St 137, 142, 23 O. O. 359, 42 N. E. (2d), 771, 141 A. L. R. 624; Constitution Indemnity Co. v. Lane (6 Cir.), 67 P. (2d), 433, 435; Employers Liability Assurance Corp. v. Accident and Casualty Insurance Co. (6 Cir.), 134 P. (2d), 566, 569, 146 A. L. R. 1186; Fidelity & Casualty Co. v. Standard Oil Co. (6 Cir.), 162 F. (2d), 715, per curiam affirmance of D. C. W. D. Ky., 66 F. Supp. 603, Shelbourne, D. J.; St. Paul-Mercury Indemnity Co. v. West Michigan Dock & Market Corp. (6 Cir.), 179 F. (2d), 242, per curiam affirmance of D. C. W. D. Mich., 82 F. Supp. 403, Starr, D. J.

The order of the district court is reversed; and the cause is remanded for further proceedings in conformity with this opinion.


author: By HORNBECK, J.

text:
    MUNGER et, Plaintiffs-Appellants, v. FOUREMAN, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4710.
    Decided March 6, 1953.
    Paul A. Griffith, William J. Lowry, Columbus, for plaintiffs-appellants.
    E. S. Morton, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment entered on behalf of defendant after the trial judge had sustained a demurrer to plaintiffs’ reply to the amended answer, plaintiffs electing to plead no further.

The action by plaintiffs was for damages which they claimed to have sustained by reason of the failure of defendant to perform what the plaintiffs contend is an option contract.

The facts are that plaintiffs had listed for sale certain real property which they owned, with a broker by the name of Will King. The listing was not exclusive but was made generally with the brokers of Columbus. On the 25th of August, 1950, defendant, in a written offer to King, proposed to buy the real estate for the sum of $20,000.00 in cash. By the further provisions of this proposal, plaintiffs were given until midnight, August 26, 1950, to accept or reject the offer to purchase. It is averred that prior to the expiration of the option date plaintiffs accepted the offer. It is further averred that on the 25th of August, 1950, defendant, by telephone, informed one of the plaintiffs that he would not perform the terms of his proposal. Plaintiffs plead readiness and willingness to perform and the refusal on the part of the defendant and plead a loss of $2,000.00 by reason of a sale of the property to another purchaser at a sum less than the listed price.

The answer to the amended petition in a first defense is a general denial. For a second defense, the defendant pleads the execution of the written offer on the day alleged, the notification to the plaintiffs at 7.00 P. M. December 26, 1950, before their acceptance of his proposal, of his withdrawal of the written offer to purchase the real estate. To this answer the plaintiffs replied setting up a clause of the contract of purchase as follows:

“Duration of Offer: In consideration of your services and your agreement to submit this offer promptly, the Buyer hereby agrees that this offer shall be open for acceptance to midnight, August 26th, 1950.”

It is alleged that this provision of the contract is a valid and binding option for a consideration and that by its terms the attempted withdrawal of defendant from his proposal to purchase the property was invalid. To this reply a general demurrer was interposed which was sustained.

Judge Reynolds, who passed on the demurrer, wrote two short opinions in the first of which he relied upon the general proposition that the defendant had the absolute right to withdraw his offer at any time before it was accepted by plaintiffs. Upon reconsideration in a second opinion, he held that no consideration moved to the plaintiffs by that provision of the contract which we have heretofore quoted.

We are in accord with these opinions of Judge Reynolds and affirm the judgment for the same reasons as therein expressed.

Judgment affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By EARHART, J.

text:
    KLEIN, Receiver, Plaintiff, v. CLARK et, Defendants.
    Common Pleas Court, Lawrence County.
    No. 34652.
    Decided December 21, 1955.
    H. M. Edwards, for defendant Charles Vidt.
    James B. Collier, for defendant Citizens National Bank.
    Elliott Meyers, for defendant R. R. Circle.
    Harold Spears, for defendant Treasurer, Lawrence County, O.
    Charles Klein, for receiver and plaintiff.
   OPINION

By EARHART, J.

This case is before the Court on the report of the receiver Charles Klein and also for determination of priority of liens.

Charles Klein was duly appointed receiver by this Court and pursuant to order of this Court, sold certain real estate belonging to William Clark located at the corner of Sixth and Spruce Streets in Ironton, Ohio. The Court has examined the proceedings, including the sale of this real estate and finds the same to be correct and in accordance with law, and said sale is confirmed. The property in question was sold for the sum of $13,275.00 and rental received before the sale of $560.00, making total receipts of $13,835.00. There were various expenditures made by the receiver totaling $395.72 as more fully appears in the account of his administration leaving cash on hand of $13,439.28. The Court hereby approves the expenditures of said receiver and finds that the same are in conformance with law, and previous orders of this Court.

The question remaining in this case involves the distribution of the $13,439.28 amongst the various creditors. Before discussing the priority of liens in this case, it might be well to dispose of certain so-called liens which in the opinion of the Court are not liens at all, and thereby eliminate said claims from this estate, realizing of course, that they will still be entitled to share as general creditors.

The first such lien is the purported lien of the County Treasurer for personal property taxes accrued in the sum of $4933.73. The County Treasurer as County Treasurer’s Exhibit “B” introduced a copy of the lien records of the Recorder’s Office of Lawrence County, Ohio showing unpaid personal property tax from the years 1942 to 1954 inclusive in the sum of $4933.73. There is no doubt as to whether these personal property taxes constitute a lien on these premises.

The lien which the Treasurer acquires, if any, is by virtue of §5719.04 R. C. (former §5694 GO. This Statute, although rather lengthy, provides in substance that immediately after each October settlement, the County Auditor shall make a tax list and duplicates thereof of all taxes except those upon real estate which remain unpaid as shown by the County Treasurer’s books, together with delinquent taxes from the August settlement and also taxes assessed by the Auditor under §5711.37 R. C. It is then provided that such tax list, eliminating taxes which total less than $100.00, be published in the newspaper. There are two duplicates made of this list, one of which is sent to the Auditor who causes it to be published twice within sixty days after delivery of said list, and the other duplicate shall be filed by the Auditor on the first day of December annually in the office of the County Recorder and the same shall constitute a notice of lien and operate as of the date of delivery as liens on the lands and lease hold interest of each person named therein having such real estate in the county.

It is admitted that these delinquent land lists are not published by the County Auditor of this County. It is my opinion that the failure to publish these lists as required by law is a fatal defect and that the County Treasurer does not acquire a lien on the premises when such lists have not been published. The publishing of such a list is a condition precedent to the obtaining by the Treasurer of a lien for the amount of unpaid personal property tax, and the delinquent land list not having been published, it is my opinion that no lien has been perfected in the sum of $4933.73 or any other sum.

In this connection I should also like to cite the unreported case decided by Judge Collier in the Common Pleas Court of Lawrence County dated October 9th, 1950, in the case of Estate of Simon R. Reitz, Deceased. In this case Judge Collier held that it was a condition precedent to acquisition of a lien under §5694 GC, that the lists of delinquent taxes be published.

This case must be distinguished from the cases where the County Treasurer has undertaken to foreclose on property for non-payment of personal property taxes. The Courts have held in these cases those cases that publication of the list is not mandatory since the defendant receives a summons as provided by law, and therefore, has notice of the pendency of the suit. However, we are dealing here with the acquisition of a lien and before the County Treasurer can acquire a lien, he must comply strictly with the provisions of the Statute which require publication and which admittedly has not been done in this case.

It is my opinion therefore, that the County Treasurer does not have a lien on said real estate in the amount of $4933.73, and is entitled to share in this fund only as a general creditor.

The Collector of the Bureau of Internal Revenue has filed with the Receiver a claim in the sum of $1,114.25 and it was the position of the Bureau of Internal Revenue that this constituted the first, highest and best lien on said premises, despite the fact that no lien had been properly recorded in the office of the County Recorder of Lawrence County, Ohio. I am advised now by letter from the United States Attorney that the Bureau of Internal Revenue is not now. claiming a priority and are asserting a claim only as general creditors and therefore, the Court determines that the Bureau of Internal Revenue does not have a lien on these premises.

The Court coming now to consider the claim of the Citizens National Bank in the sum of $11,130.00 finds that on June 15, 1953 the Citizens National Bank of Ironton, Ohio recorded a mortgage in Mortgage Record 166 page 535; said Mortgage according to its terms securing a note for $14,531.88. A note was executed by William M. Clark doing business as the Clark Buick Company and the mortgage is signed by William M. Clark and Phyllis Clark, his wife. The defendant Citizens National Bank has introduced in evidence a copy of the original note which has been designated “Defendant Citizens National Bank Exhibit No. 3.” The original of this note apparently is missing.

Subsequently on February 11, 1954 a new note was issued by Clark Buick Company and Clark Buick Motor Sales, Inc. and William Clark, individually to the Citizens National Bank in the sum of $9,342.82. It is the claim of the Citizens National Bank that this represents a renewal of the unpaid balance of the note given by William M. Clark doing business as the Clark Buick Company and dated June 6, 1953. I note from this exhibit that the ledger card has been stamped paid and the following now appears on the note of February 11, 1954, “The terms and conditions of this chattel mortgage having been fully complied with is hereby released.” This of course, indicates that this note of $9,342.82 was secured by a chattel mortgage and apparently has no reference to the note executed on June 6, 1953. Furthermore, the note is signed by the Clark Buick Company, Clark Buick Motor Sales, Inc. and William Clark.

There is introduced as defendant Citizens National Bank Exhibit 1, a note dated November 16, 1954 in the sum of $11,130.00. This is signed by Clark Buick Motor Sales, Inc., William M. Clark, President, William M. Clark, individually and Phyllis M. Clark.

In substance, the claim of the Citizens National Bank is that the mortgage given on June 6, 1953 was to secure a note of $14,531.88 given the same date by William M. Clark, d. b. a. Clark Buick Company. It is the further claim of the bank that this note was not paid according to its terms and that there was a balance of $9,342.82 and a new note was issued in said amount on February 11, 1954, which bears the notations referred to above, and which indicates that this note was secured by a chattel mortgage having no reference to the real estate mortgage given on June 6, 1953. Defendant Citizens National Bank Exhibit 1 represents the note given February 11, 1954 in the sum of $9342.82 plus certain unsecured obligations of William Clark, all of which were incorporated in the defendant Citizens National Bank Exhibit 1 and which totaled $11,130.

It is well established law of Ohio that the mortgage is merely evidence of indebtedness and that the note is the actual obligation of the parties. The Court is unable to find any relationship between the note of June 6, 1953 in the sum of $14,531.88 and the notes given February 11, 1954 and November 16, 1954. Furthermore, they could not be considered as renewals of the $14,531.88 note by reason of the fact that they are signed by different parties. It is my opinion that the oblgation for which this mortgage was originally given has been extinguished and that by reason thereof, the Citizens National Bank has lost its lien in so far as the mortgage of June 6, 1953 is concerned.

The Court coming now to consider the claim of R. R. Circle finds that a mortgage was given by William M. Clark and Phyllis Clark husband and wife in March of 1952, in the sum of $2100.00; said mortgage having been recorded April 23rd, 1952 in Mortgage Record 165. Page 62. The original note of $2100.00 has not been offered in evidence but instead the defendant R. R. Circle has introduced in evidence a note in the sum of $600.00 given January 1, 1954 by the Clark Buick Company and William Clark. It appears that the $600.00 note was given by Russell R. Circle to the Second National Bank of Ashland, Kentucky to pay off a note of the Clark Buick Company.

It is my opinion that there is no relationship between the note introduced in evidence and the mortgage in the sum of $2100.00 and the Court finds that by reason thereof, R. R. Circle does not have a lien by reason of said mortgage.

The Court coming now to consider the priority of liens finds that the receiver from the funds in his hands should pay the claims of the respective parties in the following priority. (1) The costs of this action. (2) The fees of the Receiver and Receiver’s counsel which will be a total of ten percent of the gross amount which passed through the hands of the receiver, (3) The real estate taxes now due and payable. (4) The mortgage to the First National Bank of Ironton, Ohio. (5) The judgment lien of Charles Vidt in the sum of $66,659.52 dated June 3, 1955.

It is hereby ordered that the receiver pay these amounts according to the priorities set forth above.


author: Per CURIAM:

text:
    CHADER, Plaintiff-Appellee, v. KNECHT et, d. b. a. PETER PAUL MECHANICAL SERVICE, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23628.
    Decided February 15, 1956.
    Paul P. Sogg, for plaintiff-appellee.
    Woodle & Wachtel, for defendants-appellants.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

In an amended petition filed in the Municipal Court of Cleveland, the plaintiff alleged that (1) the defendant gave him a check for the payment of an automobile, and (2) that “after defendants obtained possession of said automobile, said defendants maliciously and without probable cause and with the intent to defraud * * * plaintiff, stopped payment on said check, and that stopping payment on said check was maliciously done.” Wherefore, plaintiff prayed for judgment against the defendants “in the sum of two thousand five hundred dollars ($2,500) five hundred dollars ($500) for the check on which defendants stopped payment, and two thousand dollars ($2,000) as and for punitive damages, and costs of suit.” A copy of the check for $500 was attached to the pleading and made a part thereof.

Issues were joined, and the case came on for trial before a judge of the court, a jury having been waived. Upon completion of the trial, judgment was rendered for the plaintiff and against the defendant in the amount of “$500 and costs,” and, in addition thereto, the court, upon request, stated in writing “the conclusions of fact found separately from the conclusions of law.” Sec. 2315.22 R. C.

The conclusions are as follows:

“As findings of fact the court finds: That the plaintiff purchased a certain Buick automobile on August 26, 1948. That on August 28, 1948, said plaintiff met the defendants and a discussion was had as to the sale of said automobile. That on August 28, 1948, the plaintiff stated to the defendants that he had owned the automobile two days and had purchased it from an estate. That said automobile had been in storage up to that date. That on August 28, 1948, the plaintiff and the defendants drove said automobile and while they were driving, the said automobile overheated. That the plaintiff asked six hundred dollars ($600) for his automobile. That the defendants stated that the automobile needed many repairs and they would pay five hundred dollars ($500). That the defendants thereupon gave the plaintiff a check in the sum of five hundred dollars ($500) and the plaintiff endorsed the certificate of title. That the defendants took possession of said automobile. That thereafter the defendants claimed there was something mechanically wrong with the automobile and stopped payment on the check which they gave to the plaintiff. That the plaintiff was not an automobile dealer and gave no specific warranty for said automobile.
“And as conclusions of law in this case based on the foregoing findings of fact the court finds: That on August 28, 1948, the plaintiff was the owner of a certain automobile, that he was not a dealer, that he gave no warranty for said automobile. That the defendants purchased said automobile after examining it and driving it. That after the conclusion of the sale the defendants stopped payment on the check and therefore the plaintiff is entitled to a judgment in the sum of five hundred dollars ($500) against the defendants.”

Appeal was taken from the Municipal Court judgment to the Court of Common Pleas. The judgment was there affirmed. We encounter the case on appeal from the judgment of that court.

The appellant poses the following:

“When the plaintiff presents and proceeds to trial upon a cause of action in tort, he cannot be permitted to recover in contract, and the reverse of this proposition is equally true, namely, if the plaintiff presents and proceeds to trial upon an action in contract, he assuredly cannot recover damages for a tort.”

In answer to this statement of the appellant, we adopt the language of Matthews, J., in Armstrong v. Feldhaus, Sr., 87 Oh Ap 75, at p. 79. It is:

“The plaintiff made no attempt in his petition to classify his cause of action, and the law did not require him to do so. Even if he had done so and made a mistake, he would not have been bound thereby. In 31 O. Jur. (Pleading), pg. 573, * * * Sec. 37, it is said:
“ ‘Undoubtedly a pleading should proceed upon some definite theory, but generally speaking the theory is not required to be stated in the pleading except as it is disclosed by the facts themselves. Moreover, under the Code, although the pleader may be mistaken in his theory, —in what he conceives the nature of his cause of action to be, — he nevertheless is entitled to relief if the facts alleged show him to be entitled to relief of a different nature than that which he asked for.’
“The important thing is the allegations of fact. The litigant is entitled to the relief which the facts justify, regardless of his theory of the case.”

We find the evidence, which is contained in the bill of exceptions, sufficient to sustain the judgment, which was undoubtedly predicated upon the theory of breach of contract. We find no error prejudicial to the rights of the appellant in this respect.

It is further claimed that the court failed to properly “state in writing the conclusions of fact found separately from the conclusions of law,” as seasonably requested by the appellant.

Sec. 2315.22 R. C., provides:

“When the questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court’s decision upon questions of law involved in the trial, 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.”

Of this section, the Supreme Court stated, in Bauer v. Cleveland Ry. Co., 141 Oh St 197, at page 201, the following:

“This statute confers a substantial right, is mandatory in character, and a refusal of the court in a proper case to comply with the request provided for therein is reversible error unless it appears from the record that the party making the request is not prejudiced by such refusal. Oxford Co. v. Columbia, 38 Oh St 87; Cleveland Produce Co. v. Dennert, 104 Oh St 149, 135 N. E., 531.” (Emphasis ours.)

Inasmuch as we have before us a complete bill of exceptions, which shows that the judgment is amply supported by the evidence, it does not appear that “the party making the request” is prejudiced by the failure, if it may be said to be a failure, of the court to find on material issues in the above case and to properly pronounce its conclusions of law.

It is our conclusion, therefore, on this claim of error, that, if it may be said that the trial court did not make complete findings of fact and law, such failure did not prejudice the appellant in this case, and was not error of a prejudicial character.

We have considered all of the errors claimed, and we find none prejudicial to the rights of the appellant.

The judgment will be affirmed.

STEVENS, PJ, HUNSICKER and DOYLE, JJ, concur.