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    KAY, Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD CO. et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21822.
    Decided February 13, 1951.

      Harrison, Thomas, Spangenburg & Hull, Cleveland, for plaintiff-appellee.

      Squire, Sanders & Dempsey, McConnell, Blackmore, Cory & Burke, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment of the common pleas court of Cuyahoga County, against both defendants and in favor of the plaintiff, the action being one in negligence.

The plaintiff was an employee of the defendant, The Pennsylvania Railroad Company. He was a brakeman. At the time of the accident, he was engaged with a crew of five others, in shifting a box car from the Root Lumber Company in the City of Piqua, Ohio. The industrial track that serves the Root Lumber Company turns into the property of the defendant, The Orr Felt & Blanket Company from Wayne Street, proceeds westerly through the Orr Felt & Blanket Company property between two of its buildings and then turns south along Main Street to the Lumber Company. There were gates erected over this industrial track at each of the entrances into the Felt & Blanket Company property which were kept locked and the only way a switch engine could enter was by unlocking the gates either with a key carried by the conductor, or getting a key from an employee of The Orr Felt & Blanket Company. In 1939 The Orr Felt & Blanket Company built a draw bridge over this track, the hinge side of which was on the north building and operated from that side. The draw-bridge when lowered was about 13.5 feet above the rail of the industrial track so that when the track was in use it was necessary to raise it to provide sufficient clearance for the switch engine and box cars to pass. When fully raised, the clearance over the north rail was 17.51 feet and over the south rail 20.82 feet.

When the defendant, The Pennsylvania Railroad Company, used this industrial track, an employee of the Orr Felt & Blanket Company after notification by the ringing of a bell provided for that purpose, would cause the draw-bridge to be raised.

On the 29th day of May, 1947, the defendant, The Pennsylvania Railroad Company desired to remove a box car that had been spotted at the Root Lumber Company. The plaintiff was one of the crew in charge of the switch engine assigned for that task. The plaintiff had worked on this industrial track at least six times prior to May 29, 1947. He, therefore, knew about the bridge of the Felt Company over the switch track and that there was limited or low clearance when the bridge was in a raised position.

When the switch engine reached the box car, it was coupled on to the head end of the engine by some member of the crew other than the plaintiff. As the train started to back over Main Street and to turn into the Felt Company’s property, the plaintiff without direction from the conductor, took a position in Main Street to flag traffic. As the box car was passing, the plaintiff testified that it sounded like the brakes had not been released. The duty to check the brakes of a car when coupled on to a train or engine to be moved, was said to rest with the member of the crew who made the coupling. However, and again without instructions, the plaintiff boarded the box car as it passed into the Felt Company’s property, climbed up the ladder on the north front end and seated himself on the roof with his feet hanging over the side. The height of the box car was fourteen feet five inches at the eaves which would be about two feet outside the rail and fifteen feet one inch in the center. The clearances between the top of the car and the bridge when raised, was approximately six feet five inches over the south rail, four feet over the middle, three feet one inch over the north rail and one foot eight inches at the point where the plaintiff placed himself after climbing the ladder. At this time the train had moved forward so that the box car was from fifteen to twenty feet from the draw bridge (or as stated by plaintiff in his brief, the box car was passing under the shed connecting the two buildings) and proceeding at a speed of about ten miles per hour.

Instead of gauging the clearance to determine whether it was safe for him to ride under the bridge, in the position in which he was seated, the plaintiff testified that he looked over the side of the box car to see if there was sufficient clearance for the car to pass some gas tanks that were standing near the tracks at a point just beyond the bridge. As he straightened up, his head came in contact with the side of the draw-bridge whereby he was rendered unconscious for a few minutes, falling to his back on the top of the car. He was taken to the hospital from Piqua Station for observation and was released the next afternoon after a stay of about seventeen hours.

The plaintiff in testifying as to what he did, said:

“Q. Did you know whether or not a man could ride through underneath that draw bridge while riding on top of the car?

“A. I knew — I thought it ought to clear you sitting down. I knew the bridge was low, I knew the bridge was there.

“Q. You knew the bridge was there. You knew it was low?

“A. Yes, I did.”

And on cross-examination the plaintiff testified:

“Q. So that you never had any previous experience of riding under there and knowing that you would clear sitting down?

“A. I just took it for granted it would clear sitting down. I didn’t think they would build a bridge that low.”

After release from the hospital, the plaintiff returned to his home where he made frequent requests to return to work but was not permitted to do so until about October 12th. Thereafter he worked for fifteen months except for time off of three or four weeks because of a sprained ankle. The plaintiff testified that during this period he suffered frequent headaches, dizzy spells, and nausea and that his sleep was restless and disturbed. He suffered a heart deraignment known as Auricular Fibrillation just before Christmas, 1948. The plaintiff has not worked since that date.

The first claim of error of The Orr Felt & Blanket Company is that the plaintiff was guilty of negligence as a matter of law and a plea of distraction cannot excuse such negligence because plaintiff voluntarily put himself in a place of immediate known danger. As has been indicated, the plaintiff was by the undisputed evidence about fifteen to twenty feet from the draw-bridge when he reached the top of the box car. At the rate of speed the train was moving it would cover the remaining distance within, at the most, one and one-half seconds. A vehicle moving ten miles per hour proceeds at about fifteen feet per second. The tanks which plaintiff claims were so close to the track to endanger the train, were at the north side of the track at about the point of the bridge. The engine had passed them without danger a few minutes before in passing through the Felt Company’s property to get the box car near the lumber company on Main Street. Two other members of the crew, the engineer who was looking out of the cab window of the engine on the north side of the cab, and a brakeman riding the footboard on the same side of the train, were checking clearances so that there was no need for the plaintiff to concern himself about the tanks, and even if he did, at the time he reached the top of the box car the car was so close to them as to render any signal he might give, useless. In any event he placed himself in a place of immediate known danger. Such conduct has been held under similar circumstances to be evidence of the fact that the injured party assumed the risk of such known danger.

Pennsylvania Railroad Co. v. Snyder, 55 Oh St 342.

Masters v. New York, Chicago R. R. Co, 147 Oh St 293.

The fourth paragraph of the syllabus of the last cited case holds:

“4. A person, who brings about a condition or situation obviously dangerous to himself by voluntarily exposing himself to a hazard created by another, assumes the risk of injury so created, and thereby relieves such other of legal responsibility for an injury resulting from such exposures.”

The plaintiff, by his own testimony, placed himself on the box car, not to check clearances, but to examine the brakes. There was nothing about such duty that could relieve the plaintiff of the duty to exercise reasonable care to avoid a known immediate danger, which by his own testimony he failed to do. But the question of fact- as to whether or not his conduct, under the circumstances, was negligent and whether such negligence if shown, was a proximate cause of the injuries which he sustained, is still a jury question, it might be argued that a verdict for the plaintiff under these circumstances would be manifestly against the weight of the evidence requiring a reversal on that ground, but that would not justify taking the case from the consideration of the jury. The defendant, Felt Company’s first assignment of error is therefore overruled.

The Orr Felt & Blanket Company’s second claim of error is the failure to read to the jury requests to charge before argument Nos. 1 and 3.

The record discloses that the Felt & Blanket Company presented three requests in writing for instructions upon the law before argument. These requests were presented to the court in chambers where numbers one and three were approved and number two was refused. The record shows that the trial had proceeded for eight days and at 4:00 P. M. of the eighth day.which was Friday, both parties rested their oase. The court’s bailiff then informed the court that some of the jurors had expressed the hope that the case could be concluded that night. A poll of the jury was conducted twice and on the second poll nine of the jurors indicated that such was their desire. The trial then proceeded through the evening until the jury, after deliberating less than one hour, returned a verdict for $50,000.00 the full amount prayed for, at about 10 P. M.

The record as originally transcribed by the official court reporter, did not record that the court gave the instructions requested in writing before argument by the Pelt Company. The defendant, The Orr Pelt & Blanket Company, presented such claim of error on motion for new trial and supported such claim by affidavits. The official court report’s record showed that the papers received from the jury, when the verdict was returned, did not include said instructions. Defendant’s counsel by affidavit testified that they were found by him after trial, among papers he picked up after the case was submitted to the jury.

The court, in overruling the motion for new trial, clearly indicated that he had no positive recollection as to whether or not the special instructions were given. The court said in part:

“* * * The court, relying on his recollection alone, would say that he did read the two charges to the jury before argument. He always does and we see no reason why, in the thousands of cases tried, he should make a different rule or take a different attitude in this case; and the court believes, and relying upon its recollection alone, would say that he did read the two charges to the jury before argument and later read the two interrogatories also.

“The court’s recollection in this respect is also fortified by the deducting thought that if the court had in fact failed to read them then surely astute counsel would have noted the failure * * *."

Also at pages 1019, 1020 and 1020-a of the Bill of Exceptions where, after the bill of exceptions had been filed as written from the notes of the official court reporter, which did not mention the said charges or record that such charges were given to the jury in his presence, the court thereafter inserted substitute pages showing the special instructions as having been read and explains such change by saying.

“Court has substituted its own version of what transpired by taking out pages 1019 and 1020 of the record and by substituting the following three pages each of which is herewith o.k’d. It is done to correct the record as the court understands it.”

The record thus discloses a marked uncertainty as to whether or not the defendant was afforded his absolute legal right to have the two requests to charge, which were approved by the court, read to the jury before argument. The haste with which the case was concluded undoubtedly added to the confusion and uncertainty. A case of such magnitude, or any case for that matter, should not be subject to any uncertainty whatever as to the procedural steps provided for by law as well as to the preservation of a party’s substantive legal rights.

In the case of Booksbaum v. Christian, 53 Oh Ap 384, the court held:

“1. It is prejudicial error for a trial court through inadvertence to fail to give, before argument, a submitted request to charge which contains a correct statement of the law applicable to the case at bar, until after the general charge to the jury. The giving of the substance of the request in the general charge does not cure the error.

“2. In such case the duty imposed upon the trial court is mandatory, and counsel requesting the charge need not inquire whether the court has overlooked the request, but may assume, on the court’s failure to give the instruction, that it refused so to do.”

From the record it is far more probable than not that the written instructions requested by the Felt Company before argument did not go with the exhibits, pleadings and other papers with the jury when they retired to deliberate at the conclusion of the court’s general charge. Sec. 11420-1 GC. Paragraph 5 and Paragraph 7, provide as follows:

“Sec. 11420-1 GC: When the jury is sworn, unless for special reasons the court otherwise directs, the trial shall proceed in the following order except as provided in the next following section. * * *

“5. When the evidence is concluded, either party may present written instructions to the court on matters of iaw and request them to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced. * * *

“7. The court, after the argument is concluded, before proceeding with other business, shall charge the jury; any charge shall be reduced to writing by the court if either party, before the argument to the jury is commenced, request it; a charge or instruction when so written and given (,) shall hot be orally qualified, modified or in any manner explained to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement and 'returned with their verdict into court, and shall remain on file with the papers of the case.”

The syllabus of the case of Cone and O’Dell v. Bright, 68 Oh St 543, provides:

“On the trial of a cause to a jury, if a party thereto presents written instructions to the court on matters of law and requests the same to be given to the jury before argument is commenced, as provided for in sub-division 5 of Sec. 5190, Revised Statutes, which is done and such party, at the close of the general charge asks the court to permit the jury to take the written instructions so given, in their retirement or send the same to the jury during its deliberations, as provided for in sub-division 7 of said section, a refusal by the court to grant the request is error, for which a judgment against the party making the request will be reversed.”

And at page 553 of the opinion, the court says:

“And the fact that the general charge is not in writing does not relieve the court of the duty imposed by statute as to written instructions which have been presented and given before argument. It must be noted that the statute provides that * * * ‘such instructions shall be taken by the jurors in their retirement.’ ”

From the foregoing circumstances, considerable doubt is evidenced as to whether The Orr Felt & Blanket Company was afforded the protection of the procedural rules provided by law. But on the trial of this appeal we have before us a bill of exceptions certified by the court to exemplify what took place at the ferial. By such certification we are bound. It is not within our jurisdiction to settle the bill of exceptions in this proceeding. We must, therefore overrule the Felt Company’s second assignment of error.

The third claim of error is based on the refusal of the court to give request No. 2 to charge before argument. The request was as follows:

“I charge you that if you find that the plaintiff knew of the location and existence of the drawbridge, and knew that the clearance between the drawbridge and the box car was close, and that despite this knowledge the plaintiff placed himself in a position of potential danger, then you shall find the plaintiff guilty of contributory negligence and your verdict must be for the defendant, The Orr Felt & Blanket Company.”

This request is a modification of this defendant’s claim of error for not granting its motion for judgment, on the ground that plaintiff’s evidence disclosed that he was guilty of negligence as a matter of law in placing himself in a place of immediate known danger without using ordinary care to avoid injury therefrom, which conduct on his part was the proximate cause of his injury.

In the claim of error now being considered the question of whether the plaintiff knowingly placed himself in a place of danger is made a jury question, but the need to show that such negligence, if shown, was a proximate cause of the plaintiff’s injuries, is not mentioned as a necessary element in entering judgment for the defendant.

In the case of Coal Co. v. Estievenard, 53 Oh St 43, the plaintiff filed a claim for personal injury because of the negligence of his employer' in failing to furnish a supply of timber as provided by Revised Statute, Sec. 6871, to enable him to prop the roof of the mine in which he was working. The plaintiff had gotten some timber from a workman in a room next to him, which he used to prop the roof. After propping the roof he made tests and found there was a loose stone in the roof. He testified, however, that after putting in the posts he thought the room was safe enough. Props were thereafter delivered to him which he did not use, saying that after he had set the props he thought he was in security, or safe and that he had no need of other props. The court held:

“4. One who enters or remains in a room of a coal mine, knowing the roof thereof to be unsafe, or having the means at hand of knowing the unsafety of such roof, is guilty of such negligence as will prevent a recovery for any injury he may sustain by the falling of such roof.

“5. If one party has been negligent and the other party has knowledge thereof, or is chargeable with such knowledge, he must thereafter act with reference to such negligence and cannot shut his eyes and claim that he relied upon a proper performance of duty by the other party.”

The first part of the second charge as requested is supported by the foregoing authority but when such charge is taken in its entirety, it does not state a correct proposition of law. It was not error therefore to refuse to give special request number two to charge before argument and the Felt Company’s third assignment of error is overruled.

The fourth claim of error of the defendant, Orr Felt & Blanket Company, has to do with the court’s general charge on the subject of distraction and further that the charge incorrectly commented on the facts.

The charge of the court complained of upon this assignment of error was as follows:

“In the event your finding is for the plaintiff, you will next consider the question of contributory negligence. If you find that the plaintiff failed to exercise ordinary care to preserve and protect his own safety, then you will find him guilty of contributory negligence. Every person is under a duty to exercise his senses, including his sense of sight, to the extent an ordinarily prudent person would exercise his senses under the same or similar circumstances in order to preserve his safety. All the surrounding circumstances must be considered. Ordinarily, a person who proceeds into a known danger without maintaining a lookout, and is injured under conditions where there would have been no injury had a lookout been kept, is deemed guilty of contributory negligence. However, there is an exception to this rule. If there is a known or obvious danger, which could be seen and guarded against, but the attention of the person is momentarily distracted by another danger, and the person is injured while his attention is distracted, then his failure to guard against the first danger may be excused.

“Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with the exercise of ordinary care, or where the situation requires one bo give undivided attention to other matters, or is such as to produce hurry or confusion or where conditions arise suddenly which are calculated to divert one’s attention momentarily from the danger.

“The test remains the test of ordinary care under all the circumstances. In this case, the plaintiff claims that he did not know that the bridge was low enough to strike him while he was in a sitting position on the box car. He admits that he could have seen the bridge if he had looked, and could have avoided it if he had seen it in time.

“He further claims that his attention was momentarily distracted by certain metal tanks close to the tracks and near the draw-bridge. It is up to you to determine the facts as to plaintiff’s conduct and the surrounding circumstances, under the rules of law I have given you.

“If you find that plaintiff’s attention was in fact distracted from the drawbridge and further find that a person of ordinary prudence, with the duties of a brakeman similar to the plaintiff’s, acting under the same or similar circumstances, would have had his attention distracted so as to momentarily forget or fail to see the drawbridge, then you will find the plaintiff not guilty of contributory negligence. But if you find that plaintiff’s attention was not distracted or find that he failed to exercise ordinary care despite the distraction, then you will find that plaintiff was guilty of contributory negligence.”

The charge proceeds upon the theory that the circumstances under which the plaintiff places himself in a place of danger is of no significance. His failure to guard against an immediate danger in which he knowingly places himself is said, because of distraction, to relieve him of what otherwise would admittedly constitute negligence proximately contributing to the cause of his injury. The cases relied upon by the plaintiff do not support such a rule. For example, the case of Kane v. Northern Central Ry. Co., 128 Oh St 91; 32 O. Ed. 339, involved circumstances where a brakeman had observed a broken or missing step on a freight car on the train upon which he was working. He had reported the defective condition of the car to the conductor. At a later time while making his. way from the caboose to his station on the train, the train having started while he was eating his breakfast, in his hurry to get to his post he forgot the location of the car with the defective step and was injured because of such defect. Under the facts the court held that the question of contributory negligence was one for the jury. The facts of this case are clearly distinguishable from those here being considered where the plaintiff knowingly placed himself in a place of immediate danger before the facts upon which distraction was claimed diverted his attention. It is not the law that one is excused from negligently putting himself in a place of immediate known danger because of claimed distractions. The charge makes no distinction between a danger which comes about without the plaintiff’s fault and which he fails to observe because of claimed distraction, and a circumstance where a party knowingly puts himself in a place of immediate danger.

It will be noted also in the part of the charge above quoted that the court in commenting on the plaintiff’s evidence said:

“The plaintiff claims that he did not know that the bridge was low enough to strike him while he was in a sitting position on the box car.”

The plaintiff testified that he knew the bridge was low and at one point said:

“* * * just took it for granted it would clear sitting down. I didn’t think they would build a bridge that low.”

This part of the charge in mis-stating plaintiff’s evidence was prejudicial.

The Felt Company’s fourth claim of error is therefore sustained.

The defendant, Orr Felt & Blanket Company’s fifth assignment of error is based upon the court’s charge that the violation of §8903 and §8976-1 GC, constituted negligence as a matter of law.

Sec. 8903 GC, provides:

“Except cases in which the state railroad commission finds that such construction is impracticable, bridges, viaducts, overhead roadways, foot bridges, wire or other structures hereafter built over the track or tracks of a railroad * * * by a corporation * * * shall be not less than twenty-one feet in the clear from the top of the rails of such track * *

Sec. 8976-1 GC, provides in part:

“* * * except in cases in which the public utilities commission of Ohio finds that such placements or construction is impracticable, material of all kinds and all permanent structures such as * * * bridges * * * placed adjacent or contiguous to a track of a railroad by a * * * corporation or person, shall not be less than eight feet in the clear from the center of the track measured horizontally therefrom and such lateral clearances shall be uniformly maintained vertically upward a distance of twenty-one feet from the top of the rail. * * * The public utilities commission is hereby given full power and authority to prescribe rules and regulations governing all such placements and construction.”

Sec. 8976-1 GC was considered by the Supreme Court of Ohio in the case of Cooperative Legislative Committee etc. v. Public Utilties Commission of Ohio, 150 Oh St 270. It was the claim of the committee that the close clearances of sthe tracks of the New York Central Railroad Company’s Hayes Avenue Yard in Sandusky, Ohio, violated the provisions of §8976-1 GC. The clearance between said tracks was less than thirteen feet center to center. The court said at page 275, after quoting in full §8976-1 GC:

“It is conceded by all parties to this case that there is no specific requirement law of the state which the railroad is violating by the manner in which it maintains its tracks at the yard * * *.”

■ The Public Utilities Commission of Ohio by the terms of §8976-1 GC is given power to determine whether or not it is impractical to comply with the vertical and lateral clearances specified by the section in a particular case, before there can be a violation. Sec. 8903 GC is very similar except that the railroad commission is given authority to determine what is practical in a particular case. It cannot be said, therefore, that the draw-bridge constructed so that the vertical or lateral clearances were less than specified would constitute negligence as a matter of law. These statutes prescribed a standard of conduct but do not lay down an absolute rule or duty. The court’s charge which in effect stated that this defendant was guilty of negligence as a matter of law in constructing the draw-bridge with vertical and lateral clearances less than twenty-one and eight feet respectively, was therefore prejudicially erroneous.

The defendant’s sixth assignment of error is directed to the court’s charge on lateral clearances. The court in part said:

“* * * did not provide a clearance of eight feet laterally measured horizontally from the center of the track, with lateral clearance maintained for a distance of twenty-one feet, measured upward from the top of the rail; then I charge you that the defendant, The Orr Felt & Blanket Company was guilty of negligence as a matter of law and you will so find.”

This charge is subject to the same objection as was found with regard to that part of the charge considered under this defendant’s fifth assignment of error and was therefore prejudicially erroneous.

The seventh assignment of error of the Orr Felt & Blanket Company is concerned with the court’s charge on the subject of this defendant’s failure to exercise ordinary care with regard to warning signs, overhead clearances and certain tanks near the switch track. The amended petition of the plaintiff contains four allegations of negligence, all of which are directed to the overhead drawbridge with which plaintiff came in contact, causing his injury. It is not alleged nor is there any evidence that the presence of the tanks on the north side of the switch track in any way contributed to or was a proximate cause of the plaintiff’s injury.

The court, in explaining the plaintiff’s charges of negligence to the jury, said that they really presented only two questions:

«* * * grs^) a charge of negligence in the construction and maintenance of the drawbridge; and second, a charge of negligence with respect to the whole area surrounding the scene of the accident, including the presence or absence of warning signs, low overhead clearances, and certain tanks near the tracks.” * * *and * * * “placed and maintained metal tanks similar to acetylene tanks close to the railroad track and that such tanks constituted an unreasonable hazard to the plaintiff, and further find that a person of ordinary prudence acting under the same or similar circumstances would not have done so, then you will find the defendant, The Orr Felt & Blanket Company guilty of negligence.”

The plaintiff’s reply to the defendant’s charge or error, because it is claimed that side clearances were not in the case, is to the effect that the plaintiff was a frequenter upon defendant’s premises, and as such the defendant was bound to exercise ordinary care to maintain its premises in a reasonably safe condition, for the safety of the plaintiff while lawfully on the premises and that the close proximity of the tanks to the switch track constituted a hazard or danger which reasonable care on the part of The Orr Felt & Blanket Company would have avoided. There can be no doubt but that the Felt Company owed the duty of due care for the safety of the plaintiff, when acting in the exercise of his duties as a switchman on a train moving over the switch track while passing through the Felt Company’s property. However, unless the claimed danger of the tanks being close to the switch track was a contributing factor in causing plaintiff’s injury, and such claim is properly pleaded and supported by evidence, it would constitute error to charge the jury as was done in that part of the charge above quoted.

The claim of the plaintiff is that the presence of the tanks was the factor that distracted the plaintiff’s attention from the danger of the bridge which he could have observed had he looked in the direction in which the train was moving as required by the rules. We therefore sustain the Felt Company’s seventh assignment of error.

The eighth assignment of error concerns the court’s charge on the subject of warning signs. The charge complained of is as follows:

“If you find that this defendant failed to exercise ordinary care with respect to the presence or absence of warning devices reasonably adequate to give the plaintiff effective warning of the location and height of the drawbridge, you will find the defendant, Orr Felt & Blanket Company guilty of negligence.”

This is certainly a correct statement of law in a proper case. The only question is as to its applicability to the facts claimed by the plaintiff in the case.

The plaintiff testified that he knew of the low clearance of the bridge. He also knew that it was close at hand when he seated himself on the top of the box car. Likewise, there is no showing that if tell-tales or other warning devices had been installed at a proper place that they would have been of any value to plaintiff because he did not reach the top of the box car until he was at the edge of the overhead shed or about fifteen to twenty feet from the bridge. Under the facts as presented by the plaintiff, warnings, or warning devices would not have been of help to him. The charge was therefore erroneous.

The ninth claim of error is that the verdict is excessive.

The plaintiff’s prayer asks for $50,000.00 damages. The jury, with less than an hour’s deliberation beginning about 9:00 P. M., returned a verdict for the full amount asked for. The evidence as to the extent of plaintiff’s injuries, when considered in its most favorable light, could not sustain such a verdict. The trial court, upon ruling on the motion for new trial, said:

“I was concerned and bothered and stirred by two questions; one was the size of the verdict.”

He thereupon granted a remittitur of $10,000.00.

We are of the opinion that the verdict is not sustained by the evidence and is excessive to such an extent that it cannot be corrected by a remittitur. The court should, therefore, have granted a new trial because the verdict is grossly excessive.

The tenth claim of error is founded upon the trial court’s failure to grant a new trial on the ground of newly discovered evidence. We find that such,claim is not well taken and the Felt Company’s tenth claim of error is therefore overruled. As to the Felt Company, the cause for the reasons herein set forth is reversed and remanded for further proceedings.

Coming now to the errors claimed by The Pennsylvania Railroad Company. It is the claim of the Railroad Company;

“1. That the court erred and invaded the province of the jury when in its general charge it undertook to lay down rules of conduct by which specific acts enumerated by the court would, in and of themselves, constitute negligence.

“2. The court erred in its general charge with respect to the warnings which it asserted the Pennsylvania Railroad should have given Kay, in that the effect of such charge was to make the Pennsylvania an insurer of Kay’s safety.”

The charge as to the Railroad Company’s negligence was as follows:

“The plaintiff says that the defendant, Pennsylvania Railroad Company was negligent in two respects, or specifications.

“The first specification is: ‘In failing to provide for the plaintiff a reasonably safe place to work.’ It is conceded that as to this defendant the controlling law is the Federal Employers’ Liability Act. The federal statute provides that a railroad, such as the defendant, is liable in damages to an employee such as the plaintiff if the employee suffers injury resulting in whole or in part from the negligence of any of the officers, agents, or other employees of the railroad; or for injury suffered by reason of any defect or insufficiency due to its negligence; in the track, road-bed, works or equipment of their railroad. Under the Federal Employers’ Liability Act a railroad company in the exercise of ordinary care has the duty not to require or permit its employees to conduct switching operations on a track which is obstructed by low overhead clearance to such an extent that the lives or safety of its brakemen upon its cars are imperiled or put in danger.

“And even though an overhead obstruction is built or maintained by another, the railroad company will still have the duty not to direct or permit its employees to conduct train operations under the obstruction if the obstruction constitutes a hazard or danger to its brakemen and if the railroad knows of the hazardous condition or in the exercise of ordinary care ought to know, of the condition. In determining whether a railroad company, through its employees and agents knows or ought to know of a dangerous obstruction, you may consider the length of time the obstruction has been in existence prior to an accident.

“However, even though a railroad company might otherwise be considered negligent in sending an employee under a low overhead obstruction, such negligence could be overcome by proper safeguards, used by the railroad company and proper warnings to the employee.

“Proper safeguards or warnings would be such signs, telltales, instructions or devices as you find would be reasonably adequate to prevent accident and injury and which ought, in the exercise of ordinary care, to be provided.

“Plaintiff’s second specification of negligence charges the Pennsylvania Railroad Company with negligent failure to warn the plaintiff of danger incidental to train operation by reason of the overhanging drawbridge.

“It is my opinion, and I so charge you, that the two charges or specifications of negligence, against the Pennsylvania Railroad Company must be considered together.

“You will find that the Pennsylvania Railroad Company was guilty of negligence if you find that the drawbridge over its tracks constituted an unreasonable hazard or danger to employees such as the plaintiff; and further find that before the accident the Company, through its employees, knew, or in the exercise of ordinary care ought to have known of the existence, location and hazard or danger of the bridge; and further, find that the Company directed or permitted its train crews to conduct train operations under said bridge; and further find that the Company failed to exercise ordinary care to provide warnings, warning devices or safeguards reasonably adequate to prevent accident and injury.

“On the contrary, if you do not find each of the above listed elements of negligence to be established by the préponderarme of the evidence, then you will find that the Pennsylvania Railroad Company was not negligent and will return a verdict in favor of the Railroad against the plaintiff.”

The liability of a railroad, because of injuries suffered by its employees in the exercise of their duties, is governed by The Federal Employers Liability Act (Title 45 U. S. C. Sec. 50). The basis of the liability of a common carrier to his employees, under the Act, is the failure to exercise ordinary care under the circumstances of a particular case, to furnish a reasonably safe place in which to work. Liability is founded on common law negligence and in interpreting the Act state courts are bound to follow the rulings of the Federal Courts.

The instructions of the court above quoted as to the duty of the railroad company to furnish a reasonably safe place in which to work and as to the warnings of danger to which the plaintiff was entitled, go beyond the standard of the exercise of ordinary care.

The jury was told that the railroad company owed the duty not to direct switching operations “on a track which is obstructed by a low overhead clearance to such an extent that the lives or safety of its brakemen upon its cars are impaired or put in danger.” It was likewise told that if an obstruction constituted a hazard to its employees to its knowledge the railroad company owed the “duty not to direct or permit its employees to conduct train operations under the obstructions.” In effect these instructions, under the uncontroverted facts of the case, was a direction to the jury that the railroad company was guilty of negligence as a matter of law. The charge as above quoted is subject to the same objections as the plaintiff presented against the defendant, Orr Felt & Blanket Company’s claim of error No. 1, heretofore considered.

The Federal cases cited by all the parties in their briefs do not depart from the general rule that the question of whether negligence is established under the circumstances of a particular case is a jury question.

In the case of Ellis v. Union Pacific Railroad Company, 329 U. S. 649, the plaintiff was crushed between the wall of a building and the side of a railroad car, in a train of which the plaintiff was a member of the crew. There was a big warning sign at the point of the close lateral clearance. The plaintiff testified that he did not see the sign or know of the close clearance and that he placed himself at the point of injury to enable him to signal the engineer. Certainly the physical circumstances of the close lateral clearance on one side of the track to the building in this case was no more dangerous than the close clearance on the north end of the drawbridge. The court held that the question of whether the plaintiff was afforded a safe place to work was a jury question.

In the case of Krause v. Reading, 167 Fed. (2d) 313, the engineer was killed because his head struck the side of a tunnel which had a thirteen inch static clearance and a six inch motion clearance. It was claimed in this case that the defendant was guilty of negligence as a matter of law.

The Court of Appeals overruled the plaintiff’s contention and said:

“Here we have an experienced engineer who made this trip with this type of engine on numerous occasions * * *. We think, moreover, there is nothing in a thirteen inch static and six inch motion clearance in this tunnel which permits us to declare as a matter of law that the place was an unsafe place to work.”

The case of West v. Chicago B & O Railroad Co., 179 Fed. 801 where the plaintiff, a brakeman, was killed, his head coming in contact with a girder of an overhead bridge while he was riding on top of an extraordinary high furniture box car. The court said:

“Evidence is in the record tending to prove that the bottom of the girder was 19 feet, 8-% inches above the rails; that ordinary box cars are 12 feet high; that the furniture car in question was 14 feet 1 inch; that West was 6 feet tall in his shoes; that the company maintained this bridge as an overhead highway crossing; and that the company had a standard or usual clearance of 22 feet between track and overhead permanent structures. This was sufficient to make a prima facie case under the first charge of wrongful conduct. The ways of these great roads of commence are maintained for the indefinite future. To erect permanent structures in such locations and relations that employees when discharging their duties are likely to be killed indicates an almost wanton disregard of human life. Under its denial the company did not conclusively overcome the prima facie showing.. Such a death trap is not to be excused except by a necessity that cannot reasonably be avoided.”

The court further stated at page 805:

“But, concerning permanent obstructions, (the maintenance of which, unless reasonably unavoidable, is negligence per se) we think a further principle is involved, namely, that in law an employee is not bound at his peril to keep his consciousness continually charged with memories of the locations and relations of such obstacles, and that his engrossment in his duties at the time may excuse his failure to recall the impending peril.”

The plaintiff herein, cites this case as holding that the maintenance of the bridge, with a low clearance (where its standard bridges had a clearance of 22 feet) was negligence as a matter of law. But it must be noted that the court says that, “such death trap is not to be excused except by a necessity that cannot reasonably be avoided.” (Emphasis ours.)

And again in the last paragraph quoted, the court says that

“an obstruction unless reasonably unavoidable, is negligence per se.” (Emphasis ours.)

The court did not hold that the question was one of law for the court on the undisputed facts but rather that the facts made out a “prima facie showing” to be considered by the jury.

The plaintiff’s contention that he was entitled to an instruction that the low clearance of the drawbridge constituted negligence as a matter of law on the part of the railroad company in conducting switching operations thereunder is bottomed primarily on the case of Chotaw Okla. & Gulf R. R. Co. v. McDade, 191 U. S. 64. This case was decided five years before the Federal Employers’ Liability Act became the law of the United States.

In the McDade case, the deceased was riding on top of a boxcar on the main line of the railroad company in the open country at night when because of a low water spout maintained over the track he was knocked off and killed. The court in effect held that maintaining a water spout in such a low position as to constitute a danger or hazard to employees, constituted negligence as a matter of law in the employer’s failure to provide a safe place to work.

Since that decision, except for one or two lower court cases it has never been cited for the purpose of showing that low or close clearances, either vertical or lateral, constituted negligence as a matter of law.

The following cases hold, contrary to the McDade case, supra, that the question of whether or not either lower or narrow clearances or defective equipment constitute negligence in failing to provide a reasonably safe place to work is a jury question to be determined by giving consideration to all the circumstances of a particular case:

Seaboard Airlines v. Horton, 233 U. S. 492. Explosion of a water gauge.

Southern Pacific v. Berkshire, 254 U. S. 415. Engineer put his head out window of engine cab striking a mail crane which cleared the passing engine by fourteen inches.

Atlantic Coast Line R. R. v. Powe, 283 U. S. 401 where it was held that a signal semaphore which had a clearance of four feet between a passing train was not close enough to raise a jury question of negligence.

Wilkinson v. McCarthy, 336 U. S. 53.

In Kanawha v. Michigan Railroad Co. ; Kerse, Admr. 239 U. S. 576, the deceased was struck by a beam or timber two inches thick by three to six inches wide which had been placed over the private switch track between two buildings of the Kanawha Brewing Company by employees of the brewing company. The deceased was working as a brakeman and was riding on top of a box car in a switching operation then being conducted upon said private switch track in the brewing company’s property. The plaintiff, in citing this case, asserts that the court held that such obstruction constituted negligence as a matter of law and it was so published in 60 Law Ed. 575 in the first paragraph of the headnotes. But in the official report in the third paragraph of the syllabus, the court held:

“To conduct switching operations upon a switch obstructed in such a manner as to endanger the lives of brakemen upon its cars, is evidence of negligence, on the part of the railroad company, and the existence of such an obstruction for a considerable period of time is presumptive evidence of notice to the company.” (Emphasis ours.)

The plaintiff further quoted from the opinion (page 879) as follows:

“The action of the railroad company, through its employees, in conducting its switching operations upon a switch obstructed as this one was, in such manner as to endanger the lives of brakemen upon its cars, speaks so clearly of negligence that no time be spent upon it.”

It is claimed by this statement (upon the admitted facts) that the court intended to say that negligence was shown as a matter of law. This statement in the opinion, however, was made to dispose of the defendant’s contention that it was entitled to a directed verdict at the conclusion of plaintiff’s case.

In considering the claims of error of the railroad company in the light of the foregoing authorities, it must also be kept in mind that the facts are quite different than those of the McDade case, supra, and the one or two lower court decisions which seem to follow the rule of negligence as a matter of law, pronounced in the McDade case. In the instant case, that part of the switch track upon which the accident happened was between locked gates on either side of the Orr Felt & Blanket Company’s property, entrance to which could only be obtained by unlocking the gates. A switch engine could not move through the property at all until the drawbridge was raised which could only be accomplished by some member of the crew ringing a bell notifying the Felt Company employees that they wished to use the track. Under the circumstances the speed of any switching operation must, of necessity, be very slow. Under these circumstances it is hard to understand how any member of a crew who had been on this switch track could be unmindful of the clearances. The jury under these circumstances might well find that there was' a safe place to work furnished and that because of the plaintiff’s knowledge of the surrounding circumstances no warning was necessary or because of the short distance from the point where the plaintiff got on top of the box car to the point of danger warning signs or devices would have been valueless.

The defendant railroad company’s assignments of error are therefore well taken.

The railroad company has not claimed error because of the amount of the verdict and judgment entered thereon. But since the co-defendant, The Orr Felt & Blanket Company, has raised this question and such assigned error has been sustained, it must result as a matter of course that the railroad company would be prejudiced because the amount of the judgment is not sustained by the evidence and therefore is excessive to such an extent as to prejudice the rights of both defendants.

For the foregoing reasons the judgment against The Pennsylvania Railroad Company is reversed and remanded for further proceedings. Exc. Order see journal.

McNAMEE, J, HURD, J, concur.


source: Caselaw Access Project

author: By SKEEL, PJ.

license: Public Domain

text:
    KAY, Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD CO. et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21823.
    Decided February 13, 1951.

      Harrison, Thomas, Spangenburg & Hull, Cleveland, for plaintiff-appellee.
    Squire, Sanders & Dempsey, McConnell, Blackmore, Cory & Burke, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered in favor of the defendant, The Pennsylvania Railroad Company, and against the defendant, The Orr Felt and Blanket Company, on the Pennsylvania Railroad Company’s amended counterclaim. This is a companion case to the appeal of both of these defendants from a judgment rendered against them in favor of the plaintiff which appeal is separately considered and to which reference may be made for a more complete statement of the facts.

An issue was raised between the two defendants by the amended counterclaim of the Pennsylvania Railroad Company against the defendant, The Orr Felt & Blanket Company, seeking a declaratory judgment with regard to an alleged agreement of indemnity upon the part of The Orr Felt & Blanket Company to save the Pennsylvania Railroad Company harmless from the obligation to pay any judgment that might be rendered in this action in favor the plaintiff and against either or both defendants. After the jury was impanelled and sworn, the court proceeded to hear the arguments on the issues between the two defendants out of the hearing of the jury. The Court found for the defendant, The Pennsylvania Railroad Company, on its amended counterclaim holding that the defendant, The Orr Felt & Blanket Co., was bound to hold the Railroad Company harmless from any judgment for the plaintiff in this action.

The amended counterclaim alleges that on May 27, 1920, these defendants entered into an agreement with respect to the Orr Felt & Blanket Company constructing an unloading machine over the switch track which runs through the Felt Company’s property from Wayne Street to Main Street and known or designated as “side track No. 16” in the agreement.

On February 5, 1918, the defendants had entered into an agreement with regard to the use of said side track by The Orr Felt & Blanket Company and providing that they could build a shed across the track connecting two of the buildings of the Felt Company. In this agreement side track No. 16 is designated as a part of “commercial street side track,” because, as is indicated by the evidence, the property between the buildings of The Orr Felt & Blanket Company upon which a part of the side track was built was a public highway known as Commercial Street. However, it seems now to be used as private property for the use of the defendants with a fence at the property line of Wayne Street and also at Main Street and gates over the track. These gates are kept locked except when the track is in use.

The agreement of February 5, 1918 in part provided:

“The second party, (The Felt Company), shall have the right, subject to the requirements of public authority, to make use of said side track adjacent to its property between Wayne Street and Main Street for loading and unloading cars, when such use does not interfere with other use of said track by the first party, (The Pennsylvania Railroad Company). It is further agreed that the second party shall have permission and the right to construct and maintain, subject to the requirements of public authority and in a manner satisfactory to the first party, a shed or covering over and across said side track and connecting the two buildings of the second party as shown in ‘Exhibit A.’ ”

(Exhibit A shows the shed which was constructed had a clearance of 21' above the tracks. The drawbridge, subsequently constructed, was built under this shed.)

The agreement further provided in part:

“The second party agrees not to erect or allow to be erected any building structure or fixture of any kind in dangerous proximity to said track, and will protect, indemnify and save harmless the first party against loss, damage and expenses in consequence of injury to person or property by reason of such structure or fixture.”

The Pennsylvania Railroad Company’s first counterclaim was' founded on this contract in seeking a declaratory judgment holding The Orr Felt & Blanket Company bound to indemnify the Pennsylvania Railroad Company to the extent of any amount it might be compelled to pay the plaintiff, Kay.

The amended counterclaim, as above indicated, abandoned the 1918 agreement (although it included a recitation of its terms) and stated its cause of action on the provisions of the 1920 agreement which had to do with the building of an unloading machine.

The 1920 agreement provided in part that The Orr Felt & Blanket Company was granted the temporary right to erect an overhead unloading machine with all appurtenances connected therewith. The Orr Felt & Blanket Company was to keep covered all pit openings in a substantially safe manner and the overhead connections when not in use to be kept a safe distance from the track. The unloading machine was not to be used by any other shipper without the written consent of the Pennsylvania Railroad Company. The Orr Felt & Blanket Company agreed to “assume all expense of securing and complying with any necessary ordinance, order, permit or consent of public authority for the construction, maintenance and operation of said side track or unloading machine * *

The 1920 agreement also provided:

“The second party agrees to indemnify, protect and save harmless the first party, its successors and assigns, from all liens, actions, costs, loss and damage growing out of or resulting from injuries to persons or damages to property which may arise or result from the location, maintenance and operation of said unloading machine and appurtenances or other buildings, structures or fixtures by said second party or any other person or persons in its behalf, regardless of whether or not the negligence of the servants, agents and employees of the first party caused or contributed to any such injury to person or damage to property.

“This agreement shall not supersede or annul any part of the agreement between the first party and the second party hereto dated February 5, 1918, permitting the use of the side track adjacent to the said unloading machine.”'

On July 5, 1921, the same parties entered into a contract for an additional side track designated as No. 40, the drawing or plan of which shows the unloading machine in a different place. This contract was abrogated by an agreement of Nov. 25, 1941 which was drawn at the request of The Orr Felt & Blanket Company. This agreement specifically provides that it should not abrogate or supersede both the 1918 and 1920 agreements and designates the 1920 agreement as, “covering the erection, operation and maintenance of an overhead unloading machine.”

The unloading machine was never built.

In 1939, without a contract but with full knowledge and at least the implied consent of the railroad company, The Orr Felt & Blanket Company built the overhead drawbridge with the clearances above set forth. This is the only improvement connected with or about the railroad company’s switch tracks which was not preceded by a written agreement between the parties. The railroad company addressed a letter to The Orr Felt & Blanket Company on March 24, 1938, calling attention to the fact that the Public Utilities Commission had sent out administrative order No. 9 which dealt with the subject of clearance including therein a copy of §8976-1 GC. This letter was undoubtedly sent as a result of the Felt Company’s letter to the Railroad Company dated September 28, 1936, in which they included a drawing of the proposed drawbridge.

The trial court found that the provisions of the 1920 contract obligated the Felt Company to indemnify the Railroad for any loss or damage assessed against them by judgment or otherwise occasioned by an injury to persons or damage to property proximately resulting from the maintenance and operation of the drawbridge. From this judgment the Felt Company instituted this appeal and assigned the following errors:

1st. The trial court considered the declaratory judgment before any actual controversy existed between the parties.

2nd. That the trial court erred in holding The Orr Felt and Blanket Company was obligated to indemnify the Railroad Company for any loss, expense or judgment recovered by George H. Kay against the Railroad Company.

The first assignment of error of the Felt Company is not well taken. The declaratory judgment act (§§12102-1 to 12 GC inclusive), provides for the right to a judicial determination of the rights of the Railroad Company under its contract of 1920 with the Felt Company. A real justiciable controversy existed between these defendants. The question of the extent to which the Felt Company was bound to indemnify the Railroad Company under the 1920 agreement, that is, whether its provisions extended to loss suffered because of the overhead drawbridge built in 1939 was a matter of immediate importance to the Railroad Company in determining the extent to which it would be required to conduct a defense to the principal action. To settle controversies such as this, was the purpose for which the act was passed.

Schaefer v. The First National Bank, 134 Oh St 511; Insurance Company v. Jones, 152 Oh St 287.

The defendant Felt Company’s first assignment of error upon this branch of the case must therefore be overruled.

Coming now to the second assignment of error, it must be noted that there is but one question and this is whether the indemnity provisions of the agreement of 1920 which was entered into for the purpose of granting the Felt Company the right to build an unloading machine over the Railroad Company’s switch track can, by construction, be said to include loss or damages resulting from personal injuries caused by the overhead bridge constructed by the Felt Company eighteen years later. The provisions of the 1920 contract relied upon by .the Railroad Company as quoted above, is as follows:

“The second party agrees to indemnify * * * and save harmless the first party * * *, from all liens, actions * * * and damage * * * resulting from injuries to person * * * resulting from the location, maintenance and operation of the said unloading machine and appurtenances or other buildings, structures or fixtures by the second party * * * regardless of whether or not the negligence of the servants, agents and employees of the first party caused or contributed to such injury * * (Emphasis ours.)

When the 1920 agreement is considered “from its four corners,” one cannot escape the conclusion that the only thing the parties were then concerned with was the unloading machine. Its purpose clause after reference to the 1918 agreement granting the right to use side track No. 16 provides:

“Whereas, the second party also desires to erect, maintain and operate an overhead unloading machine for the purpose of conveying the loading of cars to conveyances of the second party, to be located as shown on said “Exhibit A,” with the minimum dimensions and clearances thereon given.

“Now, therefore, in consideration of the sum of Fve Dollars ($5.00), the receipt whereof is hereby acknowledged, it is agreed between the parties that the first party is willing to grant temporarily the right to erect, maintain and operate the said unloading machine, upon the following terms and conditions: * * *”

It must be also noted that the 1941 revision of the 1921 contract which was executed two years after the drawbridge had been constructed refers to the 1920 agreement as above indicated “covering erection, operation and maintenance of an overhead unloading machine.” Such 1941 revision of the 1921 contract makes no reference however, to the overhead bridge although it had then been constructed, which strongly indicates that the parties had no intention of including it within the provisions of the indemnity provision of the 1920 agreement.

Contracts of indemnity which seek to exonerate the indemnitee from the consequences of his own negligence must be strictly construed. The circumstances under which the indemnitee is to be exonerated must be expressed in clear and unequivocal terms. Where words of a general nature follow words dealing with a specific subject, the general words should be held to include only things of the same nature as the subject specifically dealt with.

In the case of Dingledy Lumber Co. et al v. Erie Railroad Company, 102 Oh St 236, it was held:

(1) Public policy requires that contracts of indemnity purr porting to relieve one from the results of his failure to exercise ordinary care shall be strictly construed, and will not be held to provide such indemnification unless so expressed in clear and unequivocal terms.

(2) Where, in a contract of indemnity, general words are used after specific terms, the general words will be limited in their meaning to things of like kind and nature as those specified.

(3) Such principle of construction should be applied to the contract of indemnity involved in this case, and an undertaking to save harmless from loss, damage or injury “by fire or otherwise” includes only loss, damage or injury arising from fire or causes kindred thereto and does not include injury caused to an employee of the lessee by the negligent operation of the lessor’s locomotive.

On page 242 of the opinion the Court says:

“Public policy clearly requires that such contracts shall be restricted rather than extended. It is a fundamental rule in the construction of contracts of indemnity that such a contract shall not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in clear and unequivocal terms. (14 Ruling Case Law, 47.)

“The liability of such indemnitee is regarded to be so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the liability unless the contract puts it beyond doubt by express stipulation. It cannot be established by inference from words of general import.”

And on page 245 the court says:

“It is clear that the parties did intend that the indemnification agreement should cover loss or damage by fire. That purpose is plainly expressed by the contract. It is not clear what other causes of loss or damage were contemplated. The principle of construction known as ejusdem generis therefore should be applied in determining what is included in the term “by fire or otherwise.” The application of that rule would require that where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase should be held to include only things of the same general nature as those specified. If that rule of construction be applicable here, 'then the indemnity provision would cover only such loss, damage or injury as was occasioned by fire or kindred causes, such as smoke, water, etc.”

See also — Insurance Co. v. Westinghouse, 148 Oh St 139; Insurance Co. v. Liberman, 47 Abs 300.

We come, therefore, to the conclusion that the indemnity provisions of the 1920 agreement cannot be construed to mean that The Orr Felt & Blanket Company agreed to indemnify the railroad company from the consequences of the action brought by George Kay. The judgment for the defendant, The Pennsylvania Railroad Company, against defendant, The Orr Felt & Blanket Company, upon the railroad company’s counterclaim against the Felt Company for a declaratory judgment is reversed and final judgment entered for the defendant, The Orr Felt & Blanket Company.

Judgment reversed and final judgment for defendant, The Orr Felt & Blanket Company. Exceptions. Order see journal.

McNAMEE, J, HURD, J, concur.


author: By McNAMEE, J:

text:
    KAY, Plaintiff-Appellee, v. ORR FELT & BLANKET CO. Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21822.
    Decided March 16, 1951.
    Harrison, Spangenburg & Hull, Cleveland, for plaintiffappellee.
    McConnell, Blackmore, Cory & Burke, S. Burns Weston, Cleveland, for defendant-appellant.
   ON MOTION FOR A LIMITED REHEARING

DISSENTING OPINION

By McNAMEE, J:

I am of the opinion that plaintiff’s motion for a limited rehearing ought to be granted and that upon rehearing this court should declare that defendant’s violation of §8903 GC, was negligence per se. Cooperative Comm, etc v. P. U. C. O. 150 Oh St 290, is not in point. In that case there was no evidence of a violation of the terms of §8976 GC, by the railroad. In view of this, the statement in the opinion referring to the concession by all parties that “there was no specific requirement of law of the state which the railroad is violating * * *” cannot be considered as implying that §8976 GC does not establish specific requirements of law.

The argument of defendant that there can be no specific requirement where the legislature authorizes exceptions by independent bodies is not in harmony with the existing statutory law. For example — to crash a traffic light showing “red” is negligence per se. Surely it cannot be claimed that such conduct is merely evidence of negligence because §6307-12 GC, which requires obedience to the instructions of a traffic control device contains the exception that permits one to disregard the traffic signal “if otherwise directed by a police officer."


author: By MILLER, J.

text:
    BUSH, Plaintiff-Appellant, v. COLUMBUS (City), Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4431.
    Decided February 20, 1951.
    Louis A. Gertner, A. M. Sebastian, Columbus, for appellant.
    Richard W. Gordon, City Atty., Hugh K. Martin, Edward J. Cox, Asst. City Attys., Columbus, for appellee.
   OPINION

By MILLER, J.

This is an action against the City of Columbus, wherein the plaintiff is seeking to recover for personal injuries received as a result of a fall upon an alleged unsafe sidewalk.

The first question presented is whether §3714 GC which imposes upon a municipal corporation the burden of keeping its sidewalks in repair and free from nuisances has application to an unimproved pathway located upon premises dedicated and accepted for highway purposes, but which has never been open to public travel, although it has been used as a public way for an extended period of time. The statutory duty under such circumstances is not imposed upon a municipality until it opens the same to public travel or otherwise invites the public to use it. City of Dayton v. Rhotehamel, 90 Oh St 175; 28 O. Jur. 544, Section 341. The appellant is claiming that the permissive use of the way by the public for a long period of time is some evidence tending to establish an opening up for public travel, or an invitation for the same and it therefore became a question for the jury to determine the ultimate fact. The trial court held that permissive use of the same could impose no liability upon the defendant and therefore instructed the jury to return a verdict in its favor. We think the ruling of the Court is well supported by the case of Dering v. City of Cleveland, 102 Oh St 94, wherein the only apparent difference in facts is that in this case the public had constructed a footbridge while in the case at bar it was a pathway. The Court said at page 96:

“The city cannot be saddled with a liability in this manner. The city did not build the footbridge. There was no act shown upon the part of the city accepting it and its burdens, nor any act of the city inviting the public to use it as part of its public highway system. City of Dayton v. Rhotehamel, Admr., 90 Oh St, 175.

“The trial court did not err in arresting the case from the jury. The judgment of the court of appeals is affirmed.”

It will be noted that the Court held that the trial Court did not err in directing a verdict because there was no act of the City shown accepting the improvement and none such inviting the public to use it as a part of its highway system. The Court cited the case of City of Dayton v. Rhotehamel, 90 Oh St 175, which appellant relies on as authority for submitting the case to the jury. Therefore the appellant is not correct in the conclusion that it is always a jury question. Our interpretation of the Rhotehamel case, supra, is that it only becomes a jury question when there is some evidence tending to prove such facts. In the case at bar there was no evidence produced which could impose liability upon the

It is further claimed that the Court erred in striking cerdefendant; hence there was no question for the jury to decide, tain allegations from the petition. The plaintiff did not elect to stand upon his original petition, but elected to amend and in so doing abandoned the original one. 2 O. Jur. 184, Section 97. Any error committed by an erroneous ruling on the motion is cured by the filing of an amended petition. Bower v. Travelers Insurance Co., 21 Abs 49; White v. Page, No. 4425, decided by this Court but not reported.

The Court did not err in denying plaintiff’s request to have the jury view the scene of the accident. This was purely within the discretion of the Court and there is nothing in the record tending to show an abuse of such discretion.

Finding no error in the record the judgment will be affirmed.

HORNBECK, PJ, and WISEMAN, J, concur.


author: By DOYLE, J:

text:
    SHORT, Plaintiff-Appellee, v. SHORT, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22117.
    Decided March 19, 1951.
    Gassoway, Collum & Tyler, Cleveland, for plaintiff-appellee.
    Martin & Martin, Cleveland, for defendant-appellant.
    (DOYLE, J, of the 9th District sitting in place of McNAMEE, J.)
   OPINION

By DOYLE, J:

This case was originally commenced by the filing of a petition for divorce by Sadie Short, against her husband, William T. Short. An answer and cross-petition was then filed by the defendant husband. Each prayed for a divorce and an award of alimony. Pursuant to trial judgment was entered granting a divorce to the plaintiff wife, coupled with a division of property by way of alimony. After term, the judgment was duly vacated upon a showing that the plaintiff at the time of her marriage to the defendant was bound by matrimonial ties to a living undivorced husband, and was therefore unmarriageable. The defendant husband then amended his answer and cross-petition and sought an annulment of the meretricious union and prayed “for the awarding of the property referred to and described in the original cross-petition to him * * *.”

In a second amended cross-petition defendant described three parcels of real property, the title to which he alleged “he placed * * * in himself jointly with said plaintiff” for the “purpose of providing a homestead for himself and her, as his wife and to render as husband and wife their economic status more secure.” The pleading then renewed the prayer of the original cross-petition in which he asked for alimony and specifically inter alia asked that “the plaintiff be required to convey all of said interests in said property to the defendant by a good and sufficient warranty deed * * * and in default thereof that * * *(the) decree operate as such conveyance.”

He further asked for an annulment of the union, an accounting of money received from rentals and from other sources which he claimed should be awarded to him. He concluded the pleading by asking “that he may have all such other and further relief necessary and proper in law and equity in the premises.”

The plaintiff answered the cross-petition as amended and among other things, pleaded a joint agreement to purchase the property and that “this property is now completely paid for * * * all through the efforts and frugality of the plaintiff.” She further prayed that “the rights of the parties herein be equitably adjusted * * * and for all such other and further relief as is necessary and proper in the premises.”

On the pleadings so filed, the case came on for trial in the Court of Common Pleas of Cuyahoga County and at the conclusion thereof, the court annulled the marriage and awarded one parcel of real property to the plaintiff, Sadie Short, but decreed that “the defendant has an equity of One Thousand Dollars ($1000.00) in (it) * * * which plaintiff may pay off at the rate of twenty-five ($25.00) dollars per month.” The court further awarded two other parcels of real property to the defendant, William T. Short, and to the plaintiff Sadie Short was also awarded “all of the household goods.”

It must be observed from the foregoing that the court in granting a so-called equitable relief, in truth and fact divided and awarded the property in the nature of an award of alimony.

In this state, divorce and alimony are prescribed only by statute, and alimony is a legal right which attaches only to a valid marriage. So, when a marriage has been declared void from its very inception by way of an annulment, neither party to the action has a right to an award of alimony.

In actions of this nature, the status of the parties established by the decree relates back to the time of the contract of marriage and is based upon facts existing at the time of the marriage. A lack of capacity of one or both of the parties to contract marriage renders a ceremonial marriage void ab initio and creates only a meretricious relation and not a matrimonial status.

The rights of the respective litigants to the property in question are only such as attach to persons in an individual capacity and are not the rights which attach to a husband and wife. In a proper proceeding and under proper pleadings the rights of the litigants to the various properties may be litigated but under the pleadings before us no such relief can be granted even under a general prayer for “equitable relief.”

That part of the judgment decreeing an annulment will be affirmed, and the balance of the judgment awarding the property, both real and personal, will be reversed and final judgment entered denying an adjudication of the property rights of each of the litigants.

Affirmed in part and reversed in part. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By THE COURT:

text:
    WASHINGTON, Plaintiff-Appellant, v. WASHINGTON, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2106.
    Decided December 11, 1950.
    Gus W. Byttner, Dayton, for plaintiff.
    Jacobson & Durst, Dayton, for defendant.
   OPINION

By THE COURT:

This is an appeal on questions of law from a decree of the Common Pleas Court awarding “temporary and permanent alimony” to the plaintiff after she had been granted a decree of divorce from the defendant for his aggression on the ground of gross neglect of duty.

The defendant had filed a cross-petition in which he sought a decree on the grounds of gross neglect of duty and extreme cruelty.

Upon trial had, although there was some testimony offered by the defendant himself which, if true, could have been held to have been extreme cruelty, he had no corroboration and no decree could have been granted to him upon that ground. He made no proof to support his claim of gross neglect of duty.

The plaintiff’s testimony established gross neglect of duty on the part of the defendant in that he failed to provide for her during practically all of their married life except, in part, during the period when he was in the military service. Plaintiff was corroborated by other witnesses.

The error assigned is that the court failed to award alimony to the plaintiff.

The decree recites the award to the plaintiff of the “defendant’s share in certain household furniture and furnishings” and “any and all interest that the defendant may have or claim to have in and to a 1939 model automobile, the legal title to which is now in the plaintiff.” The joint title of the parties to certain real property was not disturbed. The court fixed as reasonable attorney’s fee $250.00 to counsel for each of the parties, made the total a lien upon the real estate and thus required that each pay for the legal services of his own counsel.

The automobile was a 1939 model Ford, original cost something over $500.00, upon which there was a down payment reducing the amount to $396.75 which was secured by a mortgage loan. The only testimony as to the value of the car was that, at the time of the trial, it was worth $150.00. It was purchased in September, 1943, and the defendant took title in his name. One month later, in October, 1943, the defendant was called into the Army, served until March, 1945, was temporarily released from March to August, 1945, returned in August, 1945, and was finally discharged in October, 1945. Plaintiff testifies, and it is probable and not disputed, that of $50.00 allowance made to her by the Government on the order of the defendant, she paid $35.50 per month on the purchase price of the automobile. If so, the automobile was, with the exception of the down payment, completely paid for by the plaintiff out of her own personal funds before the defendant returned from the service. It was wrecked and it cost $79.50 to repair it which plaintiff testifies she paid. At that time the title was taken in her name after the loan company re-possessed the car. It is obvious that the award to the plaintiff of any interest that the defendant had in the automobile was of little or no monetary value.

In April, 1946, the parties acquired jointly a piece of real estate at 251 Conover Street, Dayton. $500.00 was paid down and a G. I. Loan taken back for the balance of $3,500.00. It is impossible to tell exactly how much each party paid of this $500.00 or whether all of it was borrowed because the agent of the Progress Finance Company which made this original loan said that it advanced but $375.45. It does, however, appear that when the parties separated there was a balance due of $339.53, which the plaintiff testifies, and it is not denied, that she has paid. Thus, of the total sum advanced to the parties on the original loan there had been paid at the time of separation the sum of $38.93. From the time of the purchase of this property until the date of trial there had been paid on the loan the sum of $36.00 per month, leaving $9.00 per month for taxes, repairs, up-keep, etc. The balance due had been reduced at the time of the trial to approximately $2500.00. The plaintiff testifies, and it is not denied, that two months’ rental, or $90.00, was collected by the defendant and no part of it applied on the mortgage loan. Thus, if it be granted that the defendant advanced all of the $500.00 down payment over and above the $378.45 secured from the loan company he paid of the original purchase price but $122.00. If he paid one-half of the $38.93 which was paid between the time of the original loan and the amount due when the parties separated this would amount to $19.46, or a total of $141.46. If he retained $90.00 in rentals, this leaves the sum of $51.46 as representing the sum total of the amount that the defendant paid on the purchase price of this property out of his own funds. Although we grant that our computation may be inaccurate because of the state of the record, it is reasonably certain that any substantial reduction in the principal sum due on the mortgage loan has been accomplished by rents from the property. The only other interest then, of substance, that the defendant had in this real estate was in the advance, if any, in the value of the property. Against the plaintiff’s interest in this real estate the trial judge has required her to pay for the services of her attorney, the cost of which ordinarily would be taxed as costs and required to be met by the defendant.

The parties had furniture and furnishings the value of which both fixed at $800.00 to $900.00. The plaintiff had some of these effects when they were married. She said she had $300.00 worth. However that may be, the maximum value of defendant’s interest in this furniture would be less than $400.00. There is some testimony that part of the money secured on one of the loans represented purchase price of some of the furniture and plaintiff says she paid $155.00 of its cost. In any event, the only part of the award which may be determined to represent a detriment to the defendant was his interest in the furnishings which at most was probably less than $300.00.

The parties were married about six and one-half years prior to the decree. Plaintiff had been married three times before and her age seems to be somewhat in dispute. Neither did the defendant know his age; however, he is much younger than the plaintiff and has much more earning power. Plaintiff was a minister. The church which she served was a part of the same structure in which she lived for which the rent was $20.00. She was paid $65.00 per month and did one ironing a week.

During all of the time that the defendant was in civilian life he was employed at a good weekly wage. Testimony is that it has been as high as $80.00 per week. It is testified by the plaintiff and corroborated in part by one of her witnesses that all that the defendant ever gave her out of his earnings was $10.00 per week. Prom the date of their separation, about two and a half years before the trial, defendant admits that he gave her nothing. During his military service she received $50.00 per month, $35.50 of which, as we have heretofore said, she paid upon balance due on their automobile. Defendant testifies that he gave her each week all but $10.00 of the proceeds of his work checks. As to this there is no corroboration.

At no time was the plaintiff awarded alimony pendente lite or attorney’s fees. It cannot be said that the plaintiff in the decree was awarded nothing of value but surely what she was awarded was of little value and did not touch his share of the real estate nor his earnings. Plaintiff’s share in the real estate was encumbered with a lien for $250.00, her attorney’s fees.

This case is somewhat unusual in that the record probably affords as sound a basis for determining the equity of the decree as the actual trial of the case.

Sec. 11990 GC provides:

“When a divorce is granted because of the husband’s aggression, the court shall, * * *, allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce.”

Sec. 11991 GC provides:

“Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or instalments, as the court deems equitable.

In Fickel v. Granger, 83 Oh St 101, it is said:

“Alimony is awarded by the Court upon considerations of equity and public policy and is founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.”

And in Lape v. Lape, 99 Oh St 143, it is stated:

“Where a decree for divorce is granted to a wife on account of the aggression of her husband, an allowance of alimony may be based on future personal earnings or wages of the husband. In such a case the court is not necessarily limited to a consideration of property in possession of the husband at time of decree.”

Thus, here, the court could have awarded to the plaintiff the one-half interest of the husband in the real estate and could have fixed alimony payable in periodical instalments. It is highly probable that this defendant at the time of the trial was earning as much as $80.00 per week because his wife testified that at one time his check was in that amount and he did not see fit to state specifically what his earnings were.

We are satisfied that considering the sections of the Code, which we have heretofore quoted, and the authorities cited the award of alimony in this case was grossly inadequate. If the plaintiff was to be required to pay her own counsel out of her share of the real estate then the trial judge should, at least, have awarded her the defendant’s one-half interest in the real property, especially as there was no provision made for alimony by weekly instalments out of his earnings.

It will be the order of this Court that, if the defendant will accept a decree awarding to plaintiff, as alimony, his half interest in the real estate to the plaintiff, and pay his own attorney independent of the real estate, the decree in Common Pleas Court may be modified accordingly. Otherwise the cause will be remanded for new trial. This order will still require the plaintiff to pay her own counsel fees, and certainly is as little as should be awarded.

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


author: By THOMPSON, J:

text:
    STATE, Plaintiff-Appellee, v. WEBSTER, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22071.
    Decided May 21, 1951.
    B. J. Conway, Pros. Atty., Vatro J. Grill, Asst. Pros. Atty., Cleveland, for plaintiff-appellee.
    Martin & Martin, Cleveland, for defendant-appellee.
   OPINION

By THOMPSON, J:

This case comes into this court on an appeal on law by the defendant-appellant from the judgment of the Municipal Court of Cleveland, sentencing him to pay a fine of $500.00 and costs, pursuant to a jury verdict finding him guilty of practice of medicine without a license.

Warrant was issued against the defendant in this case, based upon an affidavit filed by an inspector for the State Medical Board charging the following violation of law:

“* * * that on or about the 6th day of April, A. D. 1950, at the City of Cleveland in said County of Cuyahoga, one Franklin D. Webster, alias Franklyn D. Webster, did unlawfully practice medicine and surgery at 5005 Euclid Avenue, before the said Franklin D. Webster, alias Franklyn D. Webster, had obtained a certificate to practice medicine and surgery or any of its branches from the State Medical Board of Ohio, in the manner required by law, except a certificate to practice chiropractic and mechanotherapy which does not permit the use of drugs, in this, to-wit: the said Frank D. Webster, alias Franklyn D. Webster, did then and there prescribe, advise, recommend and dispense, for a fee, to-wit, the sum of $25.00, certain drugs, the nature of which are pills, powders and fluids and labelled ás follows: No. 52 Estrogen, No. 5 Vegetable tablets, No. 40 Vitamin B-l-Ox bile extract, No. 42 OrthoPhosphoric acid, No. B81, Vegetable tablets, No. 41 Glycerine solution, No. 91 and sulphur fumes for the bodily infirmities and diseases of Mrs. Carl Kaufman, to-wit, arthritis, excessive systemic content of aluminum, arsenic and strychnine, improper functioning of kidney and further deponent says not; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Ohio.”

Defendant pleaded not guilty and subsequently, after demurrer filed and overruled, and after motion for bill of particulars was denied, trial to the jury was had.

The evidence at the trial showed that defendant has possessed a license to practice chiropractic and mechano-therapy since 1916 and that his license is on file with the Probate Court of Cuyahoga County but no license to practice medicine was ever granted to him. The testimony further shows that one Mrs. Kaufman having an arthritic condition lasting for eighteen years and being referred to defendant, consulted him at his office on March 28, 1950, where x-rays were taken, a diagnostic machine employed and instrument readings taken. The patient returned two days later to receive the defendant’s analysis of her condition. She came back a third time with a representative of the Better Business Bureau whom she introduced as her husband. This representative asked the defendant to go through his previous examination and demonstrate the diagnostic machine. At this third consultation, the patient received from defendant State’s Exhibits 4 through 10, consisting of seven bottles of pills and written instructions as to when and how many she was to take. The patient some days later received by mail a bill for $25.00 from the defendant, which she failed to pay.

A chemist in the food and drug division of the City of Cleveland identified the contents of the bottles as follows:

Glycerine solution of iodine and vegetable extractions (State’s Ex. 4) mixture of thiamine hydrochloride or Vitamin B-l, or ox-bile (State’s Ex. 5); Estrogen preparation (State’s Ex. 6); phosphoric acid, corn starch, acacia and possibly phytin (State’s Ex. 7); non-specific volatile oils, tannin, gallic and malic acids, resins and mucilages (State’s Ex. 8); complex pulverized mixture of vegetable substances, specifically identified as starch granules of arrow root or variety and a mucilagious gum identical to that found in psyllium seed, (State’s Ex. 9); complex pulverized mixture of vegetable substances (State’s Ex. 10).

The defendant took the stand and testified to Mrs. Kaufman’s visits to his office and admitted delivery of the bottles to Mrs. Kaufman but he insisted the contents were “food supplements” given for the purpose of building up nutritional deficiencies and to ready her for subsequent body treatments.

State’s Exhibit 6, one of the bottles marked “45 tablets Estrogen Seroyal Brands” has a label declaring “Directions: To be dispensed only by or on the prescription of a physician.” After the finding of guilty by the jury and entry of judgment against defendant, the defendant-appellant filed thirteen assignments of error in this court, but his brief concerns itself primarily with three principal claims:

1. That the affidavit was fatally defective and failed to state an offense;

2. That the State failed to prove the charge;

3. That §12694 GC is inapplicable to one holding a license for the practice of limited branches of medicine or surgery.

With reference to the first claim we call attention to the statutes involved in this case. These include §§12694, 1274-1 through 7, GC, and §1286 GC. The pertinent provisions of §12694 GC are as follows:

“Whoever practices medicine or surgery, or any of its branches, before obtaining a certificate from the state medical board, in the manner required by law .... shall, for the first offense be fined not less than $25.00 nor more than $500.00

By §1274-1 GC, the State Medical Board shall

“examine and register persons desiring to practice any limited branch or branches of medicine and surgery and shall establish rules and regulations governing such limited practice. Such limited branches of medicine or surgery shall include .... chiropractic .... mechano-therapy . . . .”

Sec. 1274-3 GC describes the method of conducting examinations for particular limited branches of medicine and surgery and then declares:

“If the applicant passes such examination and has paid the fee of twenty-five dollars as required by law, the state medical board shall issue its certificate to that effect. Such certificate shall authorize the holder thereof to practice such limited branch or branches of medicine or surgery as may be specified therein, but shall not permit him to practice any other branch or branches of medicine or surgery, nor shall permit him to treat infections, contagious or venereal diseases, nor to prescribe or administer drugs, or to perform major surgery, except that the state medical board may adopt rules and regulations permitting in the practice of chiropody the use of such drugs as are necessary to such practice.”

Sec. 1286 GC is important as defining what constitutes the practice of medicine and surgery. This section declares:

“A person may be regarded as practicing medicine, surgery, or midwifery, within the meaning of this chapter, who uses the words or letters, ‘Dr.,’ ‘Doctor,’ ‘Professor,’ ‘M. D.,’ ‘M. B.,’ or any other title in connection with his name which in any way represents him as engaged in the practice of medicine, surgery or midwifery, in any of its branches, or who examines or diagnoses for a fee or compensation of any kind, or prescribes, advises, recommends, administers or dispenses for a fee or compensation of any kind, direct or indirect^ a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a wound, fracture or bodily injury, infirmity or disease. The use of any such words, letters or titles in such connection or under such circumstances as to induce the belief that the person who uses them is engaged in the practice of medicine, surgery or midwifery shall be prima facie evidence of the intent of such person to represent himself as engaged in the practice of medicine, surgery or midwifery.”

Having these sections in mind, and also the provisions of §§13437-1 through 13437-34 GC, pertaining to the sufficiency of indictments and informations, we may note the language of the affidavit in this case directly charging the offense, i. e., that defendant “did prescribe, advise, recommend and dispense for a fee to-wit, the sum of $25.00 certain drugs for the bodily infirmities and diseases of Mrs. Carl Kaufman.”

The defendant in originally demurring to the affidavit, and in charging error on the part of the trial court, has urged in effect that §1286 GC, requires the intent to be alleged that any drug or medicine was prescribed or dispensed “for the cure or relief of a wound, fracture or bodily injury, infirmity or disease” in view of employment of these precise words in the section in question. Apparently having in mind §13437-34 GC, defendant cites §13439-9 GC, providing that a defendant may demur “when the intent is not alleged and proof thereof is necessary to make out the offense charged.” We recognize that whenever a particular intent constitutes an element of a crime, such intent must be substantially averred in the indictment. 21 O. Jur., “Indictment and Information” Sec. 80, p. 772. That is the purport of the cases cited by defendant and all that is involved by §13934-9 GC. We find in the instant case that even though the precise words of the statute were .not used in their entirety, the affidavit was sufficient. See: State of Ohio v. Henning, 83 Oh Ap 445 (Second District 1948).

It is to be borne in mind that the General Assembly of Ohio has in many respects relieved criminal charges of the exactness of averment formerly necessary. 21 O. Jur., “Indictments and Information” Sec. 27, p. 707. Suffice it to say, that we find the affidavit in this case sufficient under §§13437-4, 13437-5 and 13437-7 GC, and sufficient to apprise the defenadnt of the charges he was called upon to meet. Giving the defendant the benefit of the presumptions to which he is entitled in a criminal case, we are constrained to keep in mind the admonition that while a trial must be fair to the defendant in a criminal case, it must also be fair to the people of the State whose welfare is similarly involved. State v. Schaefer, 96 Oh St 215, 219.

The second claim of error strenuously urged by counsel for defendant is that there is failure of proof. We have read carefully the bill of exceptions and we find no such failure of proof as is urged upon us. Counsel for defendant refers to the uncontradicted testimony of defendant that the articles delivered to Mrs. Kaufman were nutritional supplements and nothing more. That was the defendant’s defense and his testimony was uncontradicted by himself, but it was not the testimony of others and the jury disbelieved him. Nor do we incline to the interpretation of the statute suggested by able counsel for defendant that the services were not performed for a fee, an essential element of the crime under §1286 GC, for the mere reason that the bill for $25.00, sent by defendant to the patient, was never paid.

The third claim of error appears more substantial, that §12694 GC, does not apply to a chiropractic or mechanotherapist, holding a limited certificate under §1274-3 GC, and that either the sole method or at least the first method required in proceeding against such individual improperly practicing medicine is that outlined in §1274-6 GC, authorizing the State Medical Board to revoke or suspend a limited certificate “upon proof of violation of the rules and regulations established by the Board governing such practice.” Unfortunate for this contention, however, is the provision of the next following section of the General Code, §1274-7 GC, which expressly declares that “nothing in §§1274-1 to 1274-6 GC, both inclusive, shall be so construed as in any way amending §1286, 1287 and 12694 GC, or as in any way limiting the application of said sections or any other provisions of the laws of the state to practitioners of such limited branches of medicine or surgery save as hereinbefore specifically provided.” In other words, the very sections of the General Code providing for the licensing of individuals engaged in the limited branch of chiropractic and mechano-therapy expressly recognize the applicability to this group of limited practitioners of other sections of the Code prohibiting general practice of medicine by those who have failed to procure a license so to do.

The judgment of the trial court is therefore affirmed. Exc. Order see journal.

SKEEL, PJ, HURD, J, concur.