author: By HORNBECK, PJ.

text:
    McMULLEN et, Plaintiff-Appellant, v. F. & R. LAZARUS & COMPANY et, Defendants-Appellees.
    Nos. 4640, 4641.
    Decided February 6, 1952.
   OPINION

By HORNBECK, PJ.

The appeals in these cases were submitted upon one record and they were tried as one case in the trial court. No. 4641 is an action for damages for personal injuries claimed to have been suffered by plaintiff, Stella McMullen, while a passenger in an escalator of defendants-appellees’ store by reason of the alleged negligence of said defendants.

No. 4640 is an action of W. L. McMullen, husband of Stella McMullen, arising from the same accident for damages for loss of services.

The accident sued upon occurred on the 23rd of January, 1948, when plaintiff, Stella McMullen, and her mother, Catherine Sovill, were customers in appellants’ store. They had boarded the escalator at the first floor and were moving to the second floor. The mother, for some unexplained reason, fell against her daughter and both were precipitated heads downward and carried from the place of the falls to the second floor where they were removed from the escalator. It was the claim of. plaintiffs that while Stella McMullen, “plaintiff, was in said prone position, the defendants negligently and carelessly continued to operate said escalator and thereby ■ rolled and bumped plaintiff a distance of approximately sixty feet to the level of the second floor of said department store.”

Five specifications of negligence are set up in the petition but in this Court principal reliance for reversal of the judgment is based upon the claim that plaintiffs were entitled to go to the jury on this fifth specification:

“At the time of said injury defendants failed to have said escalator equipped with an emergency stop button or switch accessible to the public and conspicuously located at the top and bottom of each landing and marked ‘Escalator Stop Button’ or ‘Escalator Stop Switch,’ as required by law.”

The basis of the fifth specification is a rule promulgated by the. Industrial Commission substantially as set forth in the part of the petition quoted.

At the conclusion of plaintiff’s case the trial judge sustained a motion of defendants to direct a verdict in their behalf. This action of the Court is the subject of the first three assignments of error. The fourth, was the refusal to permit the Superintendent of defendants’ store to testify as upon cross-examination. The fifth is that” the Court erred in refusing plaintiffs “permission to re-open their case seconds after it was rested for the purpose of producing further evidence as to whether or not the escalator' stop button was or was not conspicuously located,” and the sixth is that the Court erred in declining to permit the jury to view the escalator and stop button, if accessible; in operation.

The only evidence in the record touching the question whether or not the escalator was equipped with automatic stop buttons, as required by the rule of the Commission, at the first and second landings of the escalator is in the testimony of plaintiff, Stella McMullen, who says that she did not see any stop button. If her evidence is probative as to the non-presence of a stop button, it could only be so as to such button at the first floor because the accident occurred on the escalator between the first and second floors. Manifestly, there could have been a stop button conspicuously located at the landing of the second floor which would not be within sight of passengers on the escalator moving upward between the first and second floors. Assuming that plaintiffs’ testimony affords some support for the claim that there was no stop button conspicuously displayed at the landing of the first floor, such proof would afford insufficient basis for submission of the case to the jury because there is no proof that the absence of such stop button was a proximate cause of plaintiff’s, Stella McMullen’s, injuries.

In the most favorable view of the evidence for- plaintiff the only place near the escalator where any employee of defendants’ companies was located, was at the second floor. If there was any negligence on the part of any such employee it cannot be referred to the absence of a stop button. If there were proof that no stop button was conspicuously displayed at the second floor it would not justify the inference that want of knowledge of the location of the stop button was the reason why an employee did .not stop the escalator. To indulge in such inference would require first an inference that because the stop button was not seen by plaintiff it was not conspicuously displayed and because it was not seen, the employees of the store did not know it was there and that was the reason they did not press the button and stop the escalator. ‘ This would require inference upon inference which is not permissible under the case of Sobolovitz v. Lubric Oil Co., 107 Oh St 204.

There is no necessity to consider the probative effect of negative testimony or those cases wherein such testimony has been held to be probative where a witness was in a situation where he was under obligation to look and did not do so, or was in position to hear a signal but did not hear it. These questions are not presented because there is no proof whatever on the material issue, viz., whether or not there was a conspicuous stop button at the landing on the second floor, the only place where it could have been effectively used to protect the plaintiff under the facts appearing.

We are satisfied that Judge King was correct in directing the verdict.

The fourth assignment is not well made. The Superintendent of defendants’ companies was not shown to be an officer of the companies.

Upon the fifth assignment the bill of exceptions discloses that plaintiff, Stella McMullen, had rested her case, defendants then interposed their motion and the following appears:

“MR. FRERICKS: If the Court please, we would ask leave of the Court to reopen our case for one point of evidence.

THE COURT: What is that?

MR. FRERICKS: To put in evidence that the stop button was not and is not conspicuously located.

THE COURT: The motion is sustained. Call the jury.”

Evidently, the Court was referring to the motion of the defendants to direct a verdict. Nothing more appears.

The right of a trial judge to open the case to permit the offering of further testimony is within his discretion. It is seldom and only under unusual circumstances resulting in manifest prejudice to the complaining party, that such action is reversed. No facts appear which would justify our conclusion that the Court improperly exercised its discretion in overruling the motion. To what extent the matter was argued or the nature of the testimony to be offered' does not appear.

The sixth assignment is based upon the refusal of the Court to permit the jury to view the stop button and. escalator in operation. This motion was made at the conclusion of the testimony and not at its beginning, the time when such motions customarily are filed. The view of the escalator, had it been granted, would not have been appropriate for the purpose assigned, namely, to determine whether or not there was a stop button and, if so, if it was conspicuously located. Such testimony would be proper only for the purposes of applying testimony on the subject adduced in the trial of the cause. However, upon any view of the action of the Court it does not appear that its discretion was abused in refusing to sustain the motion.

A careful reading of this record in its entirety is convincing that the plaintiffs did not present sufficient facts to require the Court to submit their cases to the jury under the test of Hamden Lodge, No. 517, I. O. O. F. v. Ohio Fuel Gas Co., 127 Oh St 469.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By THOMPSON, J:

license: Public Domain

text:
    GUNDERSEN, Plaintiff-Appellee, v. SOUTH EUCLID (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22207.
    Decided July 2, 1951.
    Davies, Eshner, Johnson & Miller, Cleveland, for plaintiffappellee.
    L. J. McGurk, E. A. Plazer, Cleveland, for defendants-appellants.
   OPINION

By THOMPSON, J:

This case comes into this Court on appeal on law and fact by the defendant, City of South Euclid, from an injunction granted to plaintiff in the Common Pleas Court, enjoining defendants from collecting certain assessments and reassessments against plaintiff’s property which were declared invalid by the trial court. The facts are somewhat involved but, for the purpose of stating the issues in the case and the applicable principles of law, as we see them, it will be unnecessary to recite the numerous allegations of the pleadings.

This action was commenced under date of January 15, 1948, by plaintiff, Gundersen, against the defendants, City of South Euclid, and the Treasurer and Auditor of Cuyahoga County, Ohio. The facts were presented mainly by stipulation in the court below and were submitted on that record in this Court. The admitted facts- show that plaintiff is the owner in fee simple of seventeen separate parcels of real estate in South Euclid,-each of which.is registered under the Torrens Law Five of the parcels plaintiff purchased at County Auditor’s forfeited land sale on April 15, 1947 and twelve he purchased from one Millar who had in turn bought these twelve parcels at County Auditor’s forfeited land sale under the same date.

The record shows that before buying any of the properties involved in this action, plaintiff checked the Torrens records as to each parcel at the County Recorder’s office and observed that no notations of any assessments or re-assessments appeared upon the records in that office. ' The facts further show that as long ago as December 3, 1918, with respect to Belvoir Boulevard lots, the City of South Euclid passed an assessing ordinance for sidewalks and on July 20, 1920 for water improvements. In addition, on September 8, 1925, Council passed an assessing ordinance for storm and sanitary sewers applying to all of the lots involved in this action.

An assessment for a Cedar Road storm and sanitary sewer improvement was passed by Council on November 21, 1931; storm, sanitary sewer and water improvements for Acacia, Temblethurst, Langerdale, Laurelhill and Temblett Terrace parcels were assessed on January 28, 1926 and paving on April 11, 1927. Lighting assessments were passed in 1926 for a five year period applying to all lots in this action and again in 1931 for another five year period. Lighting assessments were again enacted in 1936. All of the foregoing were assessed by Council pursuant to petitions of then property owners along the streets and premises to be improved, with the exception of the lighting assessments for Belvoir Boulevard and Temblett Terrace sewer and water assessments.

No notation of the passage of any of the assessments was ever filed with the County Recorder, except lighting assessments in 1936 and subsequently. All of the special assessments referred to have been delinquent at least since 1932 and all of them apply to some or all of plaintiff’s parcels.

It was stipulated in the trial court that in March, 1937, the City of South Euclid passed an ordinance respreading all of the unpaid original assessments under the provisions of §2293-5 (k) GC and following; that no notice thereof was given other than that which appeared at the time in certain local papers; and that on January 16, 1940, all of the unpaid special assessments of the City of South Euclid were merged into a single reassessment ordinance, and that to the total of all the unpaid special assessments was added interest and the costs of the reassessment bonds. At the time of the enactment of the original assessment ordinances above mentioned, one of the provisions of the Ohio Torrens Act in effect since 1913 provided as follows:—

’ “Section 8572-56. When, in a city, village, township or county, an ordinance, resolution or order is passed or made by a council, board or other authority, to lay out, establish, alter, widen, grade, re-grade, re-locate or construct or repair a highway, road, street, sidewalk, drain or sewer, or to make any other public improvement or to do any work, the whole or a portion of the expense of which will be assessed or levied upon real estate, if any registered land or any land included in an application for registration then .pending is affected by the act or proceeding, and liable to such assessment, or if an ordinance or resolution is passed making or levying any such assessments on registered real estate, or certifying to the auditor or other official or board any such assessment to be made or levied on any registered land, the clerk of the board or council passing such ordinance, resolution or order, or issuing such certificate, shall file with the recorder’s office a notice of the passage or issuance thereof, giving a list of the lands assessed or to be assessed, and a memorial thereof shall thereupon be noted by the recorder on the register of each certificate of title of such land. Unless there is filed with the Recorder such notice and a list of lands, registered lands shall not be liable for such assessments. In case of the repeal or nullification otherwise of such ordinance, resolution or order, such clerk or officer or board shall within 5 days thereafter notify the recorder thereof, who shall thereupon cancel such memorial.”

The foregoing section of the Ohio General Code, enacted in 1913, continued without substantial change in language until 1933 when the next to the last sentence was amended to read as follows:

“Unless there is filed with the recorder within ninety days after the passage or issuance of such ordinance, resolution or order, such notice or list of lands, registered lands shall not be liable for such assessments.”

On April 27, 1937, §8372-56 GC, was repealed in its entirety, and, by the same act, §§8572-25 and 8572-89 GC, were amended so as to include taxes and assessment liens within the exceptions not protected by a Torreps Certificate.

One of the principal claims of plaintiff is based on the language of §8572-56 GC, as in effect until 1937. Plaintiff claims that by virtue of that section, none of the original assessments for improvements against the various parcels now in his possession, and levied prior to the repeal of the section in question, and none of the successive annual installments falling due under said assessments or under any re-assessment of said assessments, either before or after repeal of §8572-56 GC are valid because of the failure of the Clerk of the City of South Euclid to file with the recorder’s office a notice of the passage of the various assessment ordinances, and in view of the consequent absence of any notation thereof by the recorder on the register of the certificates of title of the parcels involved.

Defendant, City of South Euclid, disputes this claim of plaintiff, as well as plaintiff’s interpretation of §8572-56 GC, and further relies on the respreads and reassessments on the part of the Council of the City of South Euclid in 1937 and 1940.

It is stipulated that the lots subject to this lawsuit were forfeited to the State of Ohio for non-payment of taxes and assessments and that they were sold by the County Auditor. At the time of the forfeited land sale conducted by the County Auditor in 1947 when five of the sublots involved in this action were purchased by plaintiff and the others by Millar, who then in turn sold his acquisitions to plaintiff, the conditions of sale announced as the Auditor’s Rules of Sales included the following:

“(d) These parcels are offered and will be sold free of all liability for any arrearages of taxes, assessments, penalties, interest and costs for 1946 and prior tax years, but subject to the taxes for 1947, and to the lien for the unpaid installments of special assessments or re-assessments for 1947 and future tax years, not yet due.”

. “The above statement, is merely a general explanation of the provisions of the statutes as applied to the 1947 Forfeited Land Sale, and is not to be considered as a binding condition of sale in the cases of property registered under the Torrens- Law so as to validate a lien for special assessments which otherwise would be held to be unenforcible under certain Supreme Court decisions already rendered.”

“Besides the taxes and special assessments for 1947 and thereafter, these parcels are sold subject to such easements, building restrictions or covenants running with the land as were created prior to the time the taxes or assessments, for the non-payment of which the land was forfeited, became due and payable.”

At the time of purchase of the five parcels at Auditor’s sale, and at the time of purchase from Millar of the other twelve parcels, plaintiff received the usual owner’s duplicates of Torrens Certificates of Title evidencing his ownership of the respective parcels. It was stipulated by the parties that the certificates of title contain no memorials of special assessments or lesser estates or liens or encumbrances. Certain restrictions are noted on the certificates of title, applicable to all of plaintiff’s lots, which are in a subdivision known as the Belvoir Gardens sub-division. The only restriction conceivably having any importance so far as the present litigation is concerned is No. 9, dealing with “Reservations” as follows:

“The Grantor expressly reserves in the original owners of Belvoir Gardens Subdivision, Fred J. Langer, William H. Temblett, Ernest Reker, Mills G. Clark and Stanlee T. Bates for themselves, their heirs and assigns, the sole right to legislate or grant consents, or install any improvements as storm sewers, sanitary sewers, water mains, street curbing or paving, or to grant consents for the operation of street railways, electric lights, telephone and telegraph pole lines and conduits in and upon any or all of the highways existing, or hereafter created upon which any portion of said premises shall abut, together with the right to grant permission to lay and maintain conduits and lines and poles for carrying electric wires in, through or over the rear 5 feet of said premises; also the only and exclusive right to establish grades and slopes upon the land herein described and to fix the grade at which any building shall be erected or placed thereon, so that the same shall conform to' a general plan, for the mutual benefit of all purchasers, and the sole right at all times to grant consents or to petition the proper authorities for the installation of any and all improvements, which in their opinion are necessary for the proper development of Belvoir Gardens Subdivision, of which the above described land is a part. The grantee hereby consents to and affirms any agreement that may be entered into between the said original owners, their heirs or assigns, and any authorities, providing for the installation of any of said improvements and the grantee shall be bound together with the lands herein described for the payment of the cost of said improvements hereby waiving all notice with reference to said petition and shall consent to all things or acts which may be necessary in the matter, hereby granting and ratifying all agreements or acts on the part of the said original owners, or their heirs or assigns in regard thereto.”

It may also be noted by the record (page 39) that it was stipulated that the owner’s duplicates of certificates of title received by plaintiff as result of the Auditor’s Sale, bore language substantially the same as plaintiff’s exhibit 2(d). The latter carries the following notation:

“ACT OF MAY 6,1913, 103 O. L. 914. (Land Registration Law) Section 25.

“Section 25: Every applicant who without fraud on his part receives a certificate of title in pursuance of a decree of registration, and every subsequent purchaser of registered land who takes a certificate for value and in good faith, shall hold the same free from all estates and encumbrances except those noted on the certificate and any of the following estates and encumbrances which may be existing:

“First. Such liens, claims or rights arising- or existing under the laws or constitution of the United States as the statutes of this state cannot require to appear of record in the recorder’s office.

“Second. Taxes, within six years after they have been entered upon the tax duplicates and become due and payable.

The foregoing language inscribed on plaintiff’s duplicate certificates of title is actually copied from §8572-25 GC in its form prior to amendment, effective August 18, 1937. In present form, since its 1937 amendment, the last sentence quoted above reads as follows:

“Second. Taxes and assessments levied by the United States of America, the State of Ohio, or any taxing district of said state.”

Plaintiff’s action for injunction and equitable relief was based on the claim that all assessments and reassessments not abated by the Auditor’s Sale, representing installments of special assessments and reassessments not due at the time of said sale, are null and void as liens against the seventeen parcels owned by him, by virtue of the failure of the City of South Euclid to file a notice of such assessments with the County Recorder, as provided by §8572-56 GC, in effect until its repeal in entirety on August 18, 1937. Plaintiff in his petition alleged that, despite the fact that said assessments and'reassessments were void, the City of South Euclid, if not enjoined, would cause such assessments and reassessments as had not yet become due to be certified to the County Auditor for collection and that the latter, unless restrained, would enter the same on the tax duplicate and place them in the hands of the County Treasurer for collection. Plaintiff’s petition prayed that the assessments and reassessments on said premises be declared null and void and that, the City of South Euclid, the County Auditor and County Treasurer be enjoined from collection of said assessment and reassessments.

Defendant, the City of South Euclid, by answer alleged that the original owners of the parcels acquired by plaintiff had signed the petitions requesting the installation of the improvements and had asked that the costs be assessed against their abutting properties. Defendants by answer admitted failure to comply with §8572-56 GC, but recited the original assessments and reassessments in 1937 and 1940 and alleged that plaintiff was estopped to complain of the assessments levied and averred that plaintiff had accepted a Torrens Certificate of Title subject to assessments levied by the defendant and consented to by plaintiff’s predecessors in title.

The trial court referred the case to a special master who, after hearing, filed findings of fact and conclusions of law. The conclusion of the special master was as follows:

“Therefore, based on the facts of this case and the applicable law, the plaintiff is entitled to an injunction as prayed for except as to assessments for street lighting, which are held.to be valid liens on the property involved.”

The trial court, pursuant to the special master’s report, granted plaintiff’s prayer for injunction, except with respect to street lighting assessments which were held to be valid liens on plaintiff’s parcels.

On appeal on law and fact to this Court, defendant, City of South Euclid, urges that the plaintiff is not entitled to an injunction; insists that the trial court misconstrued the law, and argues that lands acquired by plaintiff at Auditor’s Sale in 1947, ten years after the repeal of §8572-56 GC, became subject to future installments of taxes not due at the time of the sale, in view of the 1945 amendment of §5762 GC, regardless of whether the assessments were levied prior to 1937 and without compliance with §8572-56 GC. Examination of the pertinent statutes and decisions leads us to the conclusion that the position of defendant appellant, City of South Euclid, is sound.

In reaching this conclusion we recognize that for' a period of several years the law in this state, was unsettled and confusing both to property owners and to officials of Ohio municipalities, because, under the Ohio statutes, special assessments automatically became liens against unregistered lands, while under the Torrens Act, until the amendment of August 18, 1937, notice to the recorder and affirmative action by him was called for by the statute, in order to affect registered lands. It was not until the decision of Adams v. Nibbor Realty Co., 57 Abs 241, decided by this Court on May 8, 1950, subsequent to the filing of the present law suit, that there was any clear indication as to the effect of Auditor’s Sales on assessments not yet due in the case of registered lands, where such assessments had been originally levied prior to August 18, 1937. We have reached our decision in this case primarily on the basis of Adams v. Nibbor Realty Company, supra, and §5762 GC as amended on October 11, 1945, with reference to Auditor’s Sales, it appearing to us that other Ohio cases decided prior to amendment of the statute in question and cited in the. briefs can be of little help in the present determination. Sec. 5762 GC referred to, effective Oct. 11, 1945, declared as follows:

“The county auditor on making a sale of a tract of land to any person, under this chapter, shall give such purchaser a certificate thereof. On producing or returning to the county auditor the certificate of sale, the county auditor, on payment to him by the purchaser, his heirs or assigns, of the sum of one dollar and twenty-five cents shall execute and deliver to such purchaser, his heirs, or assigns, a deed therefor, in due form, which deed shall be prima facie,evidence of title in the purchaser, his heirs, or assigns. When a tract of land has been duly forfeited to the state and sold agreeably to the provisions of this chapter, the conveyance of such real estate by the county auditor shall extinguish all previous title thereto and invest the purchaser with a new and perfect title, free from all liens and encumbrances, except taxes and installments of special assessments and reassessments not due at the time of such sale, and except such easements and covenants running with the land as were created prior to the time the taxes or assessments, for the non-payment of which the land was forfeited, • became due and payable.”

Plaintiff’s parcels were acquired through Auditor’s Sale in April, 1947. At that time §5762 GC as amended, in 1945, governed Auditor’s Sales. That statute, by its terms, applied to all Auditor’s Sales and was notice to buyers of the nature of the title to be acquired. The important words of this statute bear repetition and we herewith underscore them:

• “When a tract of land has been duly forfeited to the state and sold agreeably to the provisions of this chapter, the conveyance of such real estate by the county auditor shall extinguish all previous title thereto and invest the purchaser with a new and perfect title, free from all liens and encumbrances, except taxes and installments of special assessments and reassessments not due at the time of such sale * *

At the time of the Auditor’s Sale in 1947, the decision in the Adams v. Nibbor Realty Company case, 57 Abs 241 had not been rendered but, in the light of that case, we believe it to be now clear that a purchaser at Auditor’s Sale, whether of registered or unregistered lands, buys the property subject to installments of special assessments or reassessments not due at the time of the sale. The Adams case involved special assessments levied by the Village of Parma during the years 1925 to 1930. Parma failed to file with the county recorder notice of the assessment ordinances as required by then §8572-56 GC, and Torrens property in Parma was therefore not affected by installments of assessments falling due prior to April 27,1937, at least in the absence of circumstances creating what the courts have referred to as an estoppel on the part of the land owner.

In the Adams case, after the repeal of §8572-56 GC, Parma, in 1938, reassessed and respread the unpaid portion of said installments and the remaining future installments over twenty-eight annual payments, commencing with 1938 and ending in 1965. In 1948 the Parma lands involved in the Adams case were sold at Auditor’s Sale for delinquent taxes. In the respects cited, the facts of that case are identical with the instant case, since in the present case South Euclid, after the repeal of §8572-56 GC, did exactly what Parma had done. On January 16, 1940, City of South Euclid passed its reassessment ordinance, as we have seen, to include all unpaid original assessments and reassessments. It has been here argued in behalf of plaintiff, that the original assessments, prior to 1937, never became liens on registered lands within the municipality and that, therefore, the reassessments could not become liens, since, it is said, “the source of the reassessments is in the lien of the original assessments.” It is urged that if the assessments were invalid, the reassessments must be likewise, since the latter is merely a renewal of the former. The error in this argument lies in the major premise.

In the Adam,s ease, in answer to the argument of the invalidity of the original assessments prior to 1937 and the consequent invalidity of the reassessment, after repeal of the statute, the corirt effectively dispelled this claim by pointing out that the original assessments were not invalid but merely inoperative as liens. There was no proof offered in that case, and there has been none furnished in this case, to show that the original assessment ordinances were without authority or beyond the power of the municipality to enact. There has been, and there can be no claim that the original assessments prior to 1937 were in any way void or ineffective to bind unregistered land. There being no illegality about the original proceedings, the only matter preventing the operation of the assessments as liens on registered lands was the failure of the municipality to comply with the provisions of §8572-56 GC, prior to its repeal in 1937.

In the Adams case, the court declared:

“The assessments and reassessments in question are not invalid. They are merely inoperative as liens against the registered title of the former owner. These assessments and reassessments being valid, it was competent for the state in conveying title to the forfeited land to make the future installments thereof a lien upon the new title of plaintiff as purchaser at the tax sale. The statutes governing forfeited land sales apply with equal force to registered and unregistered lands alike.”

See, to the same effect, the opinion of the court in Village of Beechwood v. The F. B. Company et al, 15 O. O. 80 (affirmed by this court on December 16, 1940, 33 Abs 126; motion to certify overruled.) It is there stated with reference to the notice required by §8572-56 GC as follows:

“* * * There appears to be no provision of law which relates the serving of the notice therein provided to the legality of the assessment proceedings. The failure to serve the notice does not affect the legality of the assessment proceeding in any manner. It affects only the lien of such assessment * * *.”

For the reasons indicated in the two cases from which we have quoted, the reassessment proceedings in the present case are valid under §2293-5 (k) and §2293-5(1) GC, and following, and §3902 GC is inapplicable, reassessment under the latter section being provided for only when the special assessment is “invalid, by reason of informality or irregularity in the proceedings, or when an assessment is adjudged to be illegal.”

What we have heretofore stated appears to us dispositive of the present case. We shall, therefore, not attempt to analyze earlier Ohio cases cited in the briefs of counsel, decided prior to the amendment in 1945 of §5762 GC. In view of the more recent clarification of our statute law, evidenced in the repeal of §8572-56 GC, and the simultaneous amendment of §8572-25 and §8572-89 GC (117 Ohio Laws 479), followed shortly thereafter by the amendment of §5762 GC, we have found it unnecessary to rely for our decision on any theory of estoppel, even though aspects of such nature may be discernible. The extra-legal warning by the Auditor of possible pitfalls for his bargain basement customers was scarcely in this category, but it was a good deed in a confused world, not yet illumined by judicial decision. Courts of equity have sometimes stressed estoppel as a basis for their judgments when, realistically, they could as well admit an understandable reluctance toward aiding a litigant to receive something for nothing, where such assistance would thereby transfer a heavier burden to other taxpayers to absorb. On this subject, see Judge Morgan’s comment in the case of State ex rel F. B. Company v. Village of Beechwood, 37 Abs 366, where he points out the increased burdens imposed upon the general taxpayer by special benefits when- payment is not borne by the properties benefited.

For the foregoing reasons, a decree is entered for the defendants. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.


text:
    WHITEHALL (Village), Plaintiff-Appellant, v. LAUDERBAUGH et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4532.
    Decided March 1, 1951.
    George L. Dixon, Carl H. Valentine, Columbus, for appellant.
    Ralph J. Bartlett, Pros. Atty., Robert P. Barnhart, Joseph J. Poorman and Donald B. Leach, Asst. Pros. Attys., Columbus, for appellees.
   OPINION

By THE COURT.

This is an appeal from the judgment of the Common Pleas Court sustaining a demurrer to the petition for the reason that the same did not- state a good cause of action. The plaintiff not desiring to plead further, the action was dismissed. The only question raised concerns disposition of one-half of the fines and bond forfeiture in cases prosecuted by the State Highway Patrol before a justice of the peace who lived and conducted his court within the limits of the incorporated village of Whitehall and which is also located within the township.

The question arises under §1183-4 GC, the pertinent portion of which is as follows:

“Disposition of fines. All fines collected from, or moneys arising from bonds forfeited by persons apprehended or arrested by state highway patrolmen shall be paid one-half, into the state treasury and one-half to the treasury of the incorporated city or village where such case is prosecuted. Provided, however, if such prosecution is in a trial court outside of an incorporated city or village such money shall be paid one-half into the county treasury.”

It is the plaintiff’s position that the statutory language requires one-half of said fines and bond forfeitures to be paid by said justice of the peace to the Village of Whitehall, because the locus of the justice’s court is in that village.

It is the position of the defendants that the statutory language requires such one-half of fines and bond forfeitures to be paid to the county treasury, because cases before a justice of the peace are prosecuted in a trial court which is a township court, and so is outside of an incorporated city or village. For a determination of this question the pertinent part of §1183-4 GC is the following: “Provided, however, if such prosecution is in a ferial court outside of an incorporated city or village such money shall be paid one-half to the county treasury.” The lower court was of the opinion that the term “trial court” was not intended to refer to the geographical location where the trial was held, but rather the particular type of court that was conducting the trial. Citing and quoting from the case of Barth v. State, ex rel. Zielonka, 107 Oh St 154. We are in full accord with the reasoning and logic set forth in the well considered opinion of Judge Gessaman. The fundamental inquiry in all judicial construction is to ascertain the intention of the Legislature and the objects to be attained by the particular enactment. As was stated by Judge Matthias in the Zielonka case, supra, at page 158,

“Surely it was not contemplated by the legislature that the subdivision which should receive one-half of the fines assessed in such cases could be arbitrarily determined by the officer before whom the prosecution was instituted by the mere physical change of his own location at the time of the hearing of the case. The fact that such magistrate is authorized to hear anywhere in the county a case of the character of that here involved does not operate to make such magistrate an officer of the subdivision where the case is actually heard.”

The Court later cited the case of City of Mt. Vernon v. Mochwart, 75 Oh St 529, which is also applicable' to the case at bar. If the plaintiff’s position were correct with respect to disposition of this money it would follow that at least some fines levied by the Common Pleas Court in cases where arrest was made by a highway patrolman would be payable to the municipality in which the court was located, which certainly was not the legislative intent. The judgment will be affirmed.

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


text:
    ERMAKORA, Plaintiff-Appellee, v. DAILLAKIS, Defendant, DEARBORN NATIONAL CASUALTY CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22199.
    Decided October 22, 1951.
    Malvern E. Schultz, Cleveland, for plaintiff-appellee.
    J. R. Kistner, Cleveland,' for defendant-appellant.
    (DOYLE, J, of the 9th District, sitting by designation in place of HURD, J.)
   OPINION

By THOMPSON, J:

This case has been appealed to this Court on a question of law from a decision of the Common Pleas Court.

Plaintiff originally commenced an action against one Dailliakis for injuries allegedly sustained when hit by an automobile operated by Daillakis. Plaintiff recovered a judgment against Daillakis in the sum of $2,000.00 in the Common Pleas Court. This judgment not having been satisfied within thirty days after the date when it was rendered, and Daillakis being covered by liability insurance, plaintiff, proceeding under §9510-3 and §9510-4 GC, thereupon filed a supplemental petition in the Common Pleas Court in the same action in which said judgment was rendered, making the Insurance Company. a new party defendant. It may be observed that §§9510-3 and 9510-4 GC provide in part as follows:

“Sec. 9510-3 GC. Liability of Insurance Company for Bodily Injury or Death.

“In respect to every contract of insurance made between an insurance company and any person, firm or corporation by which such person, firm or corporation is insured against loss or damage on account of the bodily injury or' death by accident of any person for which loss or damage such person, firm or corporation is responsible, whenever a loss or damage occurs on account of a casualty covered by such 'contract of insurance, the liability of the insurance company shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against him for loss, or damage or death occasioned by such casualty * *

“Sec. 9510-4 GC: Insurance Money Applied to Judgment, When; Insurer as Party Defendant.

“Upon the recovery of a final judgment against any firm, person or corporation by any person, including administrators and executors, for loss or damage on account of bodily injury or death, * * * if the defendant in such action was insured against loss or damage at the time when the rights of action arose, the judgment creditor or his successor in interest shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor or his successor in interest, to reach and apply the insurance money to the satisfaction of the judgment, may file in the action in which said judgment was rendered, a supplemental petition wherein the insurer is made new party defendant in said action, and whereon service of summons upon the insurer shall be made and returned as in the commencement of an action at law. Thereafter, the action shall proceed as to the insurer as in an original action at law.”

For convenience, the plaintiff in the trial court, appellee in this court, will be referred to as Plaintiff; while the Insurance Company, defendant in the supplemental petition, appellant in this court, will be referred to as the Insurance Company. Trial was had in the Common Pleas Court and judgment was rendered in favor of plaintiff and against the insurance company.

Counsel agree that the sole question before this Court is whether there has been such breach of the condition of the insurance policy, requiring cooperation of the insured, as to release the Company. Briefs of counsel cite the language of the Insurance Policy of Daillakis as controlling the question before us. The language is as follows:

“12. Assistance and Cooperation of the'Insured: Coverages A, B, C, D, E, F, G, H, I, and J. The insured shall cooperate with the Company and, upon the Company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits, the insured shall not, except at his own cost, voluntarily make any payment, assume any obligation, or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.”

The insurance policy was introduced in evidence in the trial court and is attached to the Bill of Exceptions as Plaintiff’s Exhibit A. We direct attention to Coverage A, whereby the Company agrees

“to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon the insured by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons other than the insured, caused by accident and arising out of the ownership, maintenance or use_ of the automobile.”

Before discussing the language of the insurance policy, facts recited in the pleadings (the supplemental petition of plaintiff in the trial court, the separate amended answer of the insurance company and the reply of plaintiff! and the evidence in the 'trial court become important.

Plaintiff’s supplemental petition under §9519-4 GO, recited his personal injuries and his recovery of judgment for $2,-000.00, and further alleged that, prior to and on the date of the accident, there was in full force and effect an automobile insurance policy covering the operation of the automobile owned and operated by Daillakis, issued by defendant insurance company. Plaintiff further recited that said judgment against Daillakis had become final and unsatisfied and that, more than thirty days having elapsed since the rendition of the judgment, plaintiff made demands on the insurance company to pay the judgment and that the demand was refused. Plaintiff further alleged that he was entitled to have the insurance money under the policy applied to the satisfaction of his judgment against Daillakis.

The insurance company filed an answer and subsequently a separate amended answer, admitting that on September 3, 1948, there was in full force and effect a policy of liability insurance of the company issued to Daillakis with respect to any liability imposed by law upon the insured for damages because of bodily injury arising out of the ownership and use of the automobile of Daillakis. Further answering, the insurance company denied all of the allegations of the supplemental petition.

Although other defenses in addition to a general denial were pleaded, the only one asserted in this Court is violation by the assured of the condition of the insurance policy with respect to cooperation.

The Bill of Exceptions sets forth the evidence before the trial court on this subject. The only witness called at the trial on the supplemental petition was plaintiff’s attorney, Mr. Schultz.

The testimony discloses that at the time of the accident, the assured in a policy report, gave his address as “8304 Lexington Avenue, Cleveland, Ohio.” Six days later, on Sept. 9, 1948, the plaintiff’s attorney addressed a letter to the assured at 6304 Lexington Avenue, concerning the injuries and claims of his client. No answer having been received, Mr. Schultz, the attorney for plaintiff, checked the City Directory and noted that the individual living in the house at the address in question was shown to be one Kariotakis. He therefore wrote to the said Kariotakis, under date of Oct. 7, 1948, the letter sent being identical with the letter previously addressed to Daillakis except as to salutation. Plaintiff’s attorney testified that, a few days later, he received a telephone call from a man who said he was Daillakis and who stated over the telephone, “You sent the letter, to the wrong place * * I live at 9014 Lexington Avenue but not at 6304.” Plaintiff’s attorney said that the main thing he wanted was to discuss the accident and the man talking over the telephone agreed to come to his office a few days later. No one ever came to see Mr. Schultz, so the latter, on Jan. 21, 1949, filed a petition issuing summons to Daillakis at 9014 Lexington Avenue, this being the address mentioned in the telephone conversation. Mr. Schultz further testified that after waiting a reasonable length of time for service by the Sheriff, he checked with the Sheriff’s office and learned that no service had been obtained upon Daillakis and the office reported there was no such address as 9014 Lexington Avenue. Mr. Schultz then testified that he made further investigation to locate the address of Daillakis, inquiring through friends in the Greek colony in Cleveland. He learned that Daillakis had been keeping company with a woman, had planned to marry her, and that then, shortly prior to the accident, the two had quarreled. Testifying as to his investigation, Mr. Schultz stated:

“The theory was that he had left town, that this Daillakis had left town as a result of this quarrel, or whether the automobile accident had anything to do with his leaving town or not, I am not so sure. I am not even sure that this was Daillakis that called me up. It may have been some other Greek covering up for him.”

Plaintiff’s attorney, further testifying in the hearing on the supplemental petition, said that shortly after the accident, having learned that Daillakis had insurance, he had telephoned Mr. Andrew Strek, agent admittedly representing the defendant insurance company with offices in the Williamson Building. The latter asked Mr. Schultz to telephone Mr. R. S. Lewis, declaring: “He is the attorney that represents these matters for us.” Mr. Schultz testified that he then telephoned Mr. Lewis, and, under date of Oct. 12, 1948, confirmed by letter the fact that he represented plaintiff. On Oct. 20, 1948, Mr. Schultz received a letter signed by Lewis on the letterhead of The Automobile inspection & Adjustment Company, 502 Newman-Stern Bldg. 1740 East 12th St. Cleveland, Ohio, in which was enclosed an attending physician’s report blank. Mr. Schultz was asked to have his client’s attending physician complete and return the form. Under date of Oct. 25, 1948, plaintiff’s attorney talked by telephone with the office of the Automobile Inspection & Adjustment Company and upon being told that he must submit the completed medical report he thereupon, on Oct. 27, 1948, sent a letter to the hospital to obtain further information. On Jan. 10, 1949, Mr. Schultz had another talk with the Adjustment office. On Feb. 17, 1949, Mr. Schultz talked with the Adjustment office concerning a settlement of the case, having previously forwarded to that office a copy of the petition when he filed suit (Jan. 21, 1949).

On March 10, 1949, Mr. Schultz called at the' Adjustment Company’s office and talked with Mr. Hyland and delivered a copy of the medical report, narrating his client’s injuries, and settlement was again discussed. On July 13, 1949, Mr. Schultz had a telephone talk with the representative of the insurance company and a small offer of settlement was made at or about this time. On Aug. 9, 1949, Mr. Schultz testified that he issued an alias summons and arranged for service on Daillakis through the Secretary of State of Ohio. He also informéd Mr. Hyland of the Adjustment Company’s office of what he was doing. Under date of Sept. 1, 1949, plaintiff’s attorney received a copy of the sheriff’s return from Franklin County, showing service on Daillakis through the Secretary of State.

On Sept. 30, 1949, the case against Daillakis came on for trial and it was postponed to October 5th for medical testimony. On October 10, 1949, the trial court hearing the testimony rendered judgment for $2,000.00 against Daillakis. Mr. Schultz testified that he immediately called the Adjustment Company’s office, informing Mr. Hyland that he had obtained a judgment against Daillakis. Plaintiff’s attorney thereupon, at the expiration of thirty days, filed the supplemental petition against the insurance company which is here involved. Trial'on the supplemental petition took place on March 15, 1951. Sole witness for plaintiff was his attorney, who narrated to the court his efforts to reach Daillakis and his conferences with the insurance company hereinbefore noted. On cross-examination, by the insurance company’s attorney, Mr. Schultz stated that in his investigation he found no evidence of any collusion between plaintiff and defendant. Daillakis, and no evidence of collusion between Daillakis and the insurance company. Upon termination of the cross-examination of Mr. Schultz by the attorney for the insurance company, plaintiff rested. The insurance company having thereupon asked for judgment in its. favor, the Court overruled the motion and defendant rested without calling any witnesses in its own behalf.

The detailed statement of facts here set forth and summarized from the Bill of Exceptions, has been made necessary because of the issue raised by the parties with respect to the cooperation clause of the insurance policy and its effect on the ultimate question of the liability, of the insurance company.

At the outset it should be stated that the construction of §§9510-3 and 9510-4 GC, is no longer in doubt, in view of the long line of Ohio cases in which these actions have been discussed by our Ohio Supreme Court. The leading case declaring the meaning and validity of these sections is Stacey v. Fidelity & Casualty Co. of New York, 114 Oh St 633, and in numerous subsequent decisions the Supreme Court has further defined various aspects of these statutes. (See: State Automobile Mutual Ins. Assn. v. Friedman, 122 Oh St 334; State Automobile Mutual Ins Assoc. v. Lind, 122 Oh St 500; Hartford Accident & Indem. Co. v. Randall, 125 Oh St 581; Luntz v. Stern, 135 Oh St 225; Conold v. Stern, 138 Oh St 352; Miller v. Jones, 140 Oh St 408; In re Estate of Basmajian, 142 Oh St 483; Hendershot v. Ferkel, 144 Oh St 112; Hendershot v. Ferkel, 147 Oh St 111; Conner v. Miller, 154 Oh St 313.) These sections are not unique to Ohio. The Massachusetts statute from which the Ohio statute was taken practically verbatim was 'analyzed and upheld in Lorando v. Gethro, 228 Mass, 181, and similar statrites are found in a number of other states. On this point, see excellent note in 22 O. O. 77, at page 80 by Robert C. Grisanti.

In Luntz v. Stern, 135 Oh St 225, the Ohio Supreme Court held that by the provisions of §9510-4 GC, a judgment creditor is entitled to a direct action against the insurance company after obtaining a'judgment against the assured and after the lapse of thirty days after judgment is rendered, provided that any valid conditions or requirements in the contract of insurance which would he binding upon the assured are likewise binding upon such judgment creditor. In Miller v. Jones, 140 Oh St 408, it was held that the failure of an assured to comply with the provisions of a policy of liability insurance requiring the cooperation of the assured in the preparation and trial of any claim or suit against him and forbidding him to make settlement thereof except at his own cost without the written authorization of the insurer, constituted a good and valid defense in a supplemenal proceeding to recover from the insurer pursuant to the provisions of §9510-4 GC. To similar effect, note Conold v. Stern, 138 Oh St 352, wherein Judge Hart'pointed out (page 358) that while §9510-4 GC, provides,

“that an injured person may, by supplemental petition, proceed against the insurance company after judgment is obtained against the insured who was responsible for the injury, this must be interpreted to mean that such right is subject to the limitations and conditions of the insurance contract entered into between the insurance company and the insurer, including conditions subsequent to be performed by the insured after an injury covered by the policy occurs, which conditions become conditions precedent to a right of action on the policy.”

Attention is further directed to the analysis of such a situation by Judge Hart at page 359 of the opinion, as follows:

“A clause in an insurance policy requiring the insured’s cooperation, aid and assistance in a defense of an action against him is a material condition of the policy, the violation of which by the insured forfeits his rights to claim indemnity under the policy. It is a condition precedent, failure to perform which, in the absence of waiver or estoppel, constitutes a defense to liability on the policy. Stacey v. Fidelity & Casualty Co of New York, supra; Royal indemnity Co. v. Morris, 37 F. (2d) 90, certiorari denied; Morris v. Royal Indemnity Co. 281 U. S. 748, 74 L. Ed. 1160, 50 S. Ct. 353; Bachhuber v. Boosalis, 200 Wis. 574, 229 N. W. 117; Metropolitan Casualty Ins. Co. v. Blue, 219 Ala. 37, 121 So. 25; Guerin v. Indem. Ins Co. of N. America, 107 Conn. 649, 142 A. 268; Coleman v. New Amsterdam Casualty Co. 247 N. Y. 271, 160 N. E. 367, 72 A. L. R. 1443.

And the insured’s failure to comply with the cooperation clause in his indemnity insurance policy constitutes a good defense to his insurer as against a person injured by the fault of the insured, seeking, under and by virtue of the statutes in question, to recover against the insurer for his injury.”

It seems that in the light of past decisions interpreting §§9510-3 and 9510-4 GC, the only question for decision by this'Court is whether the defense of lack of cooperation by the assured set out in the insurance company’s answer is an affirmative defense to be established by defendant or whether, under the pleadings, this defense having been first raised by defendant, the matter of cooperation becomes an essential element of plaintiff’s case to be proved by plaintiff.

The burden of proof in establishing lack of cooperation by the assured in a suit by the judgment creditor against the insurance company, under statutes similar to §9510-4 GC, is discussed in a note in 72 A. L. R. 1446, entitled: “Liability Insurance: Clause requiring assured’s cooperation, aid and (or) assistance.” Under subdivision IV of the foregoing note, with respect to burden of proof, it is declared as follows:

“Defense on the ground of the assured’s violation of cooperation clause is an affirmative one on which insurer carries the burden of proof. United States Fidelity & G. Co. v. Remond, (1930) — Ala. —, 129 So. 15; Francis v. London Guarantee & Accid. Co. (1927) 100 Vt. 425, 138 Atl. 780. Somewhat differently stated, there rests upon insurer the burden ,of proving the facts alleged and relied upon by it as constituting a breach of the clause. Cowell v. Employers’ Indem. Co. (1930) — Mo. App. — 34 S. W. (2d) 705. A lack of good faith, where relied upon as a ground of defense, must be proved. Conroy v. Commercial Casualty Ins. Co. (1928) 292 Pa. 219, 140 Atl. 905 — citing Roth v. National Auto. Mut. Cas. Co. (1922) 202 App. Div. 667, 195 N. Y. Supp. 865 (appeal dismissed without opinion in (1923) 235 N. Y. 605, 139 N. E. 752) infra, subd. V.v.

“The foregoing rule, or rules, is so little subject to debate as to need no further citation of cases.”

See further and more recent annotations on the same subject in 98 A. L. R. 1485 at page 1468 and 139 A. L. R. 771 at page 777. The latter citation declares as follows:

“As stated in the earlier annotations, it is generally held that an assured’s breach of the corporation clause being an affirmative defense is one on which the insurer carries the burden of proof.”

. That the foregoing statements represent the general law, see 46 C. J.'S. Insurance, Section 1321(f), as follows:

“Ordinarily, and sometimes under statute, insured’s violation of the ‘cooperation clause’ of a liability policy is regarded as an affirmative defense which the insurance company has the burden of proving.”

Attention is also called to the article on “Insurance” in 22 O. Jur. p. 854, Sec. 759, as follows:

“Matters of Defense,»Conditions Subsequent, and Exceptions.

“As a general rule, one suing on a policy of insurance need not aver in his petition any facts which are matters of defense, such as noncompliance with conditions subsequent and excepted risks. * * * Nor need conditions subsequent that are matters of defense be proven in.chief or alleged in the petition, especially as the plaintiff may not be advised which condition subsequent the insurance company claims was violated. So, provisions in a policy that it shall become void, or inoperative, or that the insurer shall be relieved wholly or partially from liability, upon the happening of some event, or the doing or omission to do some act. are matters of defense, and to be available must be pleaded, and their breach alleged, by the defendant.”

See also, Benoy’s Ohio Insurance and Negligence Law, 1936, Sec. 699 as follows:

“Conditions subsequent such as conditions that provide that a policy shall become void or inoperative, or the insurer relieved wholly or partially from liability upon the happening of some event or doing or omission to do some act, are matters of defense. To be availed of, the insurance company has the burden of proving a breach thereof. That is, the burden is on the defense to prove the breach of conditions by affirmative evidence.”

The Ohio cases under §9510-4 GC are in line with the general law that the cooperation clause in a liability insurance policy constitutes a good defense to the insurer as against a party injured by fault of the insured seeking to recover against the insurer and that the burden, of sustaining the affirmative defense that the cooperation claus.e has been violated rests with the defendant as it does in the case of other affirmative defenses.

Two cases decided by this Court have discussed conditions subsequent in actions under §9510-4 GC involving insurance policies. In State Auto. Mutual Ins. Assoc. v. Friedman, 34 Oh Ap 551 (affirmed 122 Oh St 334), it was held in the fifth paragraph of the syllabus that conditions precedent must be proved by plaintiff who seeks to recover on an insurance policy, but not conditions subsequent.

In another case decided by this Court, Medical Protect. Co. v. Light, 48 Oh Ap 508 (Motion to Certify overruled Jan. 16, 1935) an action was brought by an administratrix to recover in a malpractice action for alleged negligent treatment of plaintiff’s .decedent. A judgment was obtained against the doctor and action was then brought by supplemental petition against the insurance company. The insurance company set forth in its answer an alleged breach of the insurance policy with respect to attendance upon the trial and cooperation by the doctor. Under the terms of the policy, the assured had agreed to “attend, assist and cooperate in the preparation and defense of any claim or suit.” This Court made the following comment:.

“If the company is to avoid liability, it would be merely upon the ground that the assured * * was guilty of a breach of a condition subsequent.”

Upon review of the evidence, the court affirmed the trial court that the evidence failed to establish, a breach of the condition subsequent.

See also, Wasserman v. Zurich General Accid. & Liab. Ins. Co., 39 Oh Ap 33.

The California statute provides that when a judgment is obtained against the assured in an action brought by the injured person, an action may be brought against the insurer on the policy “subject to its terms and limitations” by such judgment creditor. Deering’s California Codes, (1950) Insurance, Sec. 11580. A federal case involving such an action is Western Casualty & Surety Co. v. Weimar, 96 Fed. (2d) 635, C. C. A. 9, 1938. In its answer, the company set up the affirmative defenses that the assured had voluntarily assumed liability to plaintiff and had failed to cooperate with the company in the defense of the suit brought against him. The Court declared:

“Either of these defenses, if sustained by proof, would exculpate the company from liability, under condition C. of the policy * * *. The requirements imposed by the quoted paragraph are not conditions_ precedent. They outline conditions subsequent, affirmative matters of defense which the insurer must plead and prove in order to defeat recovery on the policy.”

See similarly, State Farm Mutual Auto. Ins. Co. v. Koval, 146 F. (2d) 118. (C. C. A. 10, 1944)

It may be observed in the case now under consideration that the cooperation clause provided that “the insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements securing and giving evidence, obtaining the attendance of witnesses.” At the close of plaintiff’s case in the trial court, the defendant insurance company rested. Having alleged lack of cooperation as an affirmative defense in its answer, it failed to introduce any evidence at the trial, having contented itself with asking for a directed verdict at the close of plaintiff’s testimony. Giving the most favorable interpretation to defendant of plaintiff’s evidence, as is required on motions for directed verdict at the close of plaintiff’s case, was lack of cooperation shown by plaintiff’s evidence sufficient to require the granting of defendant’s motion? We think not. Plaintiff’s evidence discloses that the insured was not present at the original hearing in court when judgment was obtained against the insured, but failure to appear in court is not proof of failure to cooperate. If mere failure to appear constituted proof of non-cooperation, it would be within the power of the insurance company and the assured, by acting in concert, to defeat any litigant. Here it should be stressed that there was no evidence that the assured had actual notice of the suit. Despite this fact, the regularity of the judgment against the assured was not attacked and could not successfully be attacked by the insurance company in view of §§6308-2 and 6308-5 GC, permitting service through the office of the Secretary of State, not only on non-resident automobile drivers using Ohio roads, but also, on residents who subsequently become non-residents or who conceal their whereabouts. Hendershot v. Ferkel, 144 Oh St 112, second paragraph, of syllabus. Whereas the insurance company had the burden of sustaining the affirmative defense of lack of cooperation by the assured, it offered no evidence in the trial court to show that the assured was ever requested at any time to cooperate or that he refused to cooperate when requested. Plaintiff’s evidence did not supply this missing proof.

■ If any conclusions are to be drawn from failure of the assured to accept with alacrity the invitation to the office of plaintiff’s attorney or from his failure to place himself in the path of a deputy sheriff for seiwice of process, it may be suggested that these hesitations merely indicated a defendant genuinely reluctant to be sued and conforming his 'conduct to practices not ordinarily deemed unfriendly to the defense. There was no testimony in the trial court that the assured failed to forward to the insurance company a copy of the petition or that he failed to report the accident or failed to cooperate in other respects desired. The plaintiff had no means of knowledge on this subject and the behavior of the assured was necessarily known only to and could be testified to by the insurance company alone. Yet the latter elected to remain silent. We note from the evidence that plaintiff’s attorney at every stage of the trial informed the insurance company of developments and furnished the company with a copy of 'the petition when suit was filed, doubtless having in mind the language of the opinion in Hartford Accident & Indem. Co. v. Randall, 125 Oh St 581 declaring as follows (page 585):

“It must be held that by virtue of §9510-4 GC, an injured person has a potential interest and a substantial right in the policy from the very moment of his injury, and, although it does not develop into a vested right until a judgment is secured, his rights are such,' even before judgment, as to entitle him to comply with the terms and conditions of the policy, and thus make them effective in his behalf in the event the insured fails to discharge his duty under the policy.”

,The only testimony bearing upon the matter of cooperation or lack of cooperation by the assured was that of plaintiff’s attorney that he failed to locate the assured and that testimony cannot by any means establish failure of the latter to cooperate with the insurance company which, so far as the record shows, may have been in touch with the assured throughout the entire litigation in the Common Pleas Court.

The insurance company having asserted an affirmative defense which it failed to substantiate, we find no error in the judgment of the trial court prejudicial to its rights. The judgment must be and is therefore affirmed.

Judgment affirmed. Exe. Order see journal.

SKEEL, PJ, DOYLE, J, concur.


text:
    FISHBACK, Plaintiff-Appellant, v. BALDASARRO et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4654.
    Decided September 17, 1951.
    Key, Butler & Harrison, Paul Thomas Key, of Counsel, Columbus, for plaintiff-appellant.
    W. B. Bartels, Edward F. Lynch, Columbus, for defendantsappellees.
   OPINION

By THE COURT.

Submitted on motion by the defendants-appellees seeking an order dismissing the appeal herein for the reason that the said appeal is not based upon final orders. The record reveals that the notice of appeal is directed to two orders of the trial court, one of which was entered on June 8, 1951, vacating and suspending the default judgment for $1600.00 entered by it on May 15, 1951, in favor of the plaintiff and against the defendants. The other order appealed from was dated Jupe 12, 1951, which permitted the refiling out of rule of a demurrer to the interrogatories attached to the petition.

Counsel for the appellees cite the case of Green v. Acacia Mutual Life Ins. Co., 156 Oh St 1, the fourth syllabus of which provides:

“An order granting a new trial upon motion made in accordance with §11578 GC, is not a final determination of the rights of the parties and does not constitute a judgment or final order, the General Assembly has no power or authority to provide for an appeal from such order, and §12223-2 GC, providing that ‘an order vacating or setting aside a judgment and ordering a new trial, is a final order,’ is in conflict with Section 6, Article IV of the Ohio Constitution.”

The appellants have no quarrel with the principle of law announced in tlie Green case, supra, but are contending that the order sought to be vacated there was not based upon an abuse of discretion but that the motion was made in accordance with §11578 GC. An examination of the factual situation supports the appellant in this contention. The orders made in the case at bar were made during the same term of court, and it is fundamental that a trial court- has control of its judgments and orders during the term provided that in so doing it does not abuse its discretion.

In 2 O. Jur. Pt. 1, Section 110, p. 222, it is said:

“Under the old practice in vogue before the enactment of the latest statutes, in determining whether rulings made on motions to set aside, vacate, or modify judgments were final orders, distinctions were made between orders sustaining such motions and orders overruling them. Moreover, as to orders sustaining such motions, a distinction had to be made between motions filed during the term at which the judgment was rendered and those filed during a subsequent term.

“An order of court sustaining a motion filed during the term a judgment was rendered to vacate it or to set it aside was not regarded as a final order unless the court was shown to have abused its discretion in sustaining the motion. And in some of the' authorities it was merely stated more broadly that such an order is not final, but there seemed to be little doubt that the order was reviewable where abuse of discretion could clearly be shown.”

Also, 2 O. Jur. p. 1109, Section 619, it is stated:

“The rule is firmly established in Ohio that the control of a reviewing court over the discretion of a lower court in vacating or modifying its judgments or orders during term time is limited to cases where an abuse of discretion is clearly shown; in this connection it has been pointed out that no language, however strong, will take away 'the right of review where there is shown an abuse of discretion.”

In the Green case, supra, the court seemed to recognize the exception wherein it said at page 9:

“By the same line of reasoning the trial court in the present case had control of the judgment on the verdict until it passed upon the motion for a new trial, and since the granting of a new trial was not erroneous, there being no abuse of discretion upon the part of the court, there is no final order, for the plaintiff has the right to a retrial of the ease in the same court and might well obtain a judgment against the defendant.” (Emphasis ours.)

Our Supreme Court again seemed to recognize the exception in the more recent case of Mele v. Mason, 156 Oh St 118.

The motion will, therefore, be overruled.

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


text:
    FISHBACK, Plaintiff-Appellant, v. BALDASARRO et, Defendants-Appellees.
    No. 4654.
    Decided February 6, 1952.
   OPINION

By THE COURT.

This is an appeal on questions of law from two orders of the Common Pleas Court of Franklin County:

First, in vacating and suspending during term a default judgment taken by plaintiff;

Second, in granting leave to defendants to fjle out of rule a demurrer to the interrogatories attached to the plaintiff’s petition.

In our opinion the second order is not a final order from which an appeal may be taken.

An order, vacating and suspending during term a default judgment is not a final order (Green v. Acacia Mutual Life Insurance Company, 156 Oh St 1, OA 57 Abs 43) unless an abuse of discretion' is shown. Nowhere in appellant’s assignments of error or brief is it contended that the court abused its discretion. The court is not legally required to consider errors which are not presented in appellant’s brief. Sec. 12223-21 GC. However, the court in its discretion may consider and decide errors which are not assigned or specified. Accordingly, the court does not choose to rest its opinion on the technicality that abuse of discretion has not been claimed, but will exercise its discretion and determine whether or not an abuse of discretion has been shown.

In support of the motion to vacate the judgment counsel for defendants filed his affidavit which stated that at the time the default judgment was taken counsel for plaintiff was attempting to compromise and settle the difficulties between plaintiff and defendants. Counsel for plaintiff filed a counter-affidavit denying that this was true. The trial court had before it these two affidavits, together with tendered answers of the defendants and affidavits of both defendants. Plaintiff claims that the answer tendered by each defendant was in the nature of a general denial and that more is required to be stated than simply a general denial, citing Canal Winchester Bank v. Exline, 81 Oh Ap 353 (Horn-beck, JJ, the third syllabus of which holds:

“The prerequisites to an adjudication of a valid defense, in an action to vacate a judgment, require more than a general denial of the averments of the petition which would be sufficient to state a defense before judgment.”

We are of the opinion that the tendered answers in which the defendants denied that the plaintiff had expended and paid to them the sum of $16,000.00 or any sum whatever in schemes of gambling, was more than a general denial.

The trial court had authority to vacate and suspend the judgment, during term in the exercise of a sound discretion. In The First National Bank of Dunkirk, Ohio, v. Smith, 103 Oh St 120, the court in the second syllabus held: “The procedure announced in Chapter 6, Division 4, Title IV, Part Third, of the General Code, entitled ‘Other relief after judgment,’ relates to the vacation and modification of judgments by the court, after the term at which they were made, and does not limit a court of general jurisdiction in the exercise of its control over its judgments during the term.”

On page 123 the court in its opinion said:

“We find that in cases of this character the lower courts have followed a practice of holding that the procedure laid down in Chapter 6, supra, is the proper procedure to be followed upon an application to vacate or suspend a judgment made at the same term in which the judgment'was rendered; and, further, that in some jurisdictions a rule of court exists making it necessary as a matter of practice to follow the procedure outlined in Chapter 6 in seeking to vacate or suspend a judgment, where the application is made at the same term in which the judgment was rendered.

“We think this is a wholesome rule in furtherance of good practice, especially in reference to judgments taken on cognovit instruments and by confession. Bat we are constrained to hold that in the face of such a rule the court may not be limited or concluded to the grounds enumerated in §11631 GO; and, in the absence of such a rule of court, the court may not be limited or concluded by the method of procedure outlined in Chapter 6.

“We therefore hold that the court had control over this judgment during the term at which it was entered, and had the power to suspend it without reference to the method of procedure outlined in Chapter 6.” (Emphasis ours.)

In the instant case a rule of court is not involved. In Moherman v. Nickels, 140 Oh St 450, the court in the first syllabus held:

“A court of general jurisdiction has control of its own orders and judgments during the term at which they are made or rendered, and the inherent power, in the exercise of a sound discretion, to vacate or modify them.”

On page 455 the court in its opinion in referring to §11631 GC said:

“The action of the trial court in the instant case was taken at the same term and hence the Code section above mentioned does not specifically apply. There is no corresponding statutory authority granting the trial court power to vacate a judgment within the same term at which it was entered, but it is inconceivable that a court should have power to vacate its judgment after the term within which it was entered, and have no power to vacate one entered within the same term.

“At common law, a court of general jurisdiction has power to control its own orders and judgments during the term at which they are made or rendered, and the power, in the exercise of a sound discretion, to vacate or modify them. 31 American Jurisprudence, 272, Section 727. This is an inherent power of the court independent of any statutory authority therefor. 31 American Jurisprudence, 268, Section 718. The power of the trial court in this respect has been recognized by this court on numerous occasions.”

(Numerous cases cited, including The First National Bank of Dunkirk, Ohio, v. Smith, supra.)

We are of the opinion that the trial court in the exercise of a sound discretion was justified in concluding that the defense as averred, if supported, constituted a valid defense to plaintiff’s action.

We find no abuse of discretion in the action of the trial court. •

Judgment affirmed.

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


author: By GRIFFITH, J. By NICHOLS, J.

text:
    ANDERSON, Plaintiff-Appellee, v. MAY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 696.
    J. M. MacDonald, Lisbon, for plaintiff-appellee.
    F. W. Springer, East Palestine, Ralph Atkinson, Salem, for defendant-appellant.
   OPINION

By GRIFFITH, J.

The appellant here, Leona Anderson May, is seeking the reversal of the judgment of the Probate Court of Columbiana County, Ohio, entered on the 21st day of September. 1951. That Court allowed a writ of Habeas Corpus ordering the three minor children of Leona Anderson May and Owen Anderson, released to the custody of the father.

The Habeas Corpus proceeding is based upon a decree of a county court of Waukesha County, Wisconsin, wherein the custody and control of the children was awarded to the father, the relator in this case. The appeal was filed on questions of law and fact, but it has been submitted to this Court by counsel upon questions of law only, it appearing that the action is not a chancery case. The following facts were stipulated:

“That the defendant, Leona Anderson May, is a native of the State of Wisconsin and that the plaintiff and defendant were married in .the State of Wisconsin and were residents of and domiciled in that state up to the latter part of the month of December, 1946, at which time the defendant left the State of Wisconsin with the aforesaid children and came to the' State of Ohio; that the said children which are the subject of this action in Habeas Corpus,' to-wit: Ronald Anderson, Sandra Anderson, and James Anderson, were born in the State of Wisconsin and at all times resided in that State with their parents, plaintiff and defendant, up until the latter part of December, 1946, at which time the defendant brought them into the State of Ohio; that the plaintiff, Owen Anderson, at all times has been and is now a resident of and domiciled at Waukesha County in the State of Wisconsin.

“That said defendant, Leona Anderson May established a separate domicile in the State of Ohio the latter part of December, 1946, and has ever since that time been domiciled in Lisbon, Columbiana County, Ohio.

“That on February 5, 1947, the plaintiff herein was granted a divorce in the County Court of Waukesha, State of Wisconsin. That at the time said divorce was granted, and at the time the petition for said divorce was filed, as well as at all other times in between, the defendant, Leona Anderson May, was in Lisbon, Columbiana County, Ohio, and had with her at all said times the three minor children aforesaid, Ronald Anderson, Sandra Anderson and James Anderson.

“That the only service made on the defendant in connection with said divorce proceedings, was that made by the Sheriff of Columbiana County, Ohio, in which he personally handed the defendant a copy of the summons from Waukesha County, Wisconsin, and a copy of the divorce petition filed in the County Court of said Waukesha County, Wisconsin. That the defendant never entered her appearance in the County Court of Waukesha County, State of Wisconsin, and filed no waiver, answer or demurrer therein. That the plaintiff obtained a decree of divorce, which among other things, adjudged and decreed that the care, custody, management and education of the minor children of the parties was awarded to the plaintiff, subject to the right of the defendant to visit said children at any and all reasonable times. That said decree was entered by default in the absence of any appearance by the defendant.

“That thereafter the plaintiff came to Lisbon, Columbiana County, Ohio, and, accompanied by a police officer of the Village of Lisbon, Ohio, demanded and obtained the aforesaid minor children from the defendant. That the plaintiff has retained the custody of said minor children since February of 1947, having taken them back with him to Waukesha County, Wisconsin.

“That no further legal proceedings of record have been filed in said divorce case since the aforesaid divorce decree was entered.

“That on July 1,' 1951, the plaintiff brought the aforesaid children with him on a visit to Columbiana County, Ohio, and voluntarily permitted the children to go on a visit for a limited period of time to their mother’s, the defendant herein. That the mother, the said defendant, has refused to surrender said children to the plaintiff, and the plaintiff has filed this action to recover the possession and custody of said children.”

Testimony of Mrs. May and Mr. Anderson was taken and so far as the issues in this case are concerned, that is all the record that is pertinent to the solution of the instant problem. The conduct of the father and the mother of the children following the Probate Court’s announcement of its decision, reprehensible as that conduct may be on the part of each, has no bearing on the decision of this case.

The testimony of the father and mother bears directly upon the conditions under which Mrs. May took the children from Wisconsin to Ohio.

Mr. May testified:

A. I agreed that she could take them with her after arguing the statement pro and con she could take them with her And if her mind was made up, she could settle things at home. That was the understanding I had when she left.

Q. Did she say she would bring the children back?

A. She agreed to it when she left.

Q. When you had this telephone conversation with her on New Year’s Day, what was said?

A. The only thing I can remember is, “Owen, I’m not coming back.”

A. I called her up and asked her to bring the children back. I asked them all to come back.

Record, pages 11 and 12.

Mrs. May testified that at the time she left Wisconsin the children’s ages were 8 years, 5 years, and 18 months.

Q. What was the purpose in coming to Ohio?

A. He told me to get away by myself to think it over or what I wanted to do. Either come back to live or separate.

Q. When you left Wisconsin, what was said about the children?

A. Nothing was said. He said it was up.to the Court. He said he would never separate the three of them.

Q. Was there anything said about bringing the children back to Wisconsin?

A. Nothing was said.

Q. What was your understanding?

A. To come here to think it over and I decided to stay.

Q. What was your understanding about the children?

A. There was no ■ understanding. All I know was that I had them with me. When the papers were served I asked the attorneys what to do.

Q. At the time you left Wisconsin, had you made up your mind that you would not come back to Wisconsin?

A. At the time I left I really didn’t know what I was going to do.

From the record before us, it is apparent that Leona Anderson May was a native of Waukesha, Wisconsin; that she and Owen Anderson were married in the middle thirties and took up residence in Waukesha where they lived their entire married life. Their domicil and permanent home, freely chosen by both, was fixed in Waukesha up to December 26, 1946; that on December 26, 1946, Leona Anderson May left Waukesha with the three children and came directly to Lisbon, Ohio, where she established .her domicil. That she brought the children to Lisbon with the knowledge and consent of the father to think over her domestic differences with her husband, and decide whether she would longer live with him. That on New Year’s Day she told her husband she was not coming back. That the father thereupon, requested the return of the children as he had stated to the mother that the matter of their custody “was up to the Court.”

That on January 6, 1947, Owen Anderson filed his action in Waukesha for divorce and custody of the children and said divorce was granted to him on February 5, 1947, which decree was made in the absence of the mother and the children from the State ofAWisconsin and without service or jurisdiction over them other than the substituted service in the divorce case. ■

The Court awarded custody of the children to the father. The only service made on Leona Anderson May in the divorce case was through the Sheriff of Columbiana County, Ohio, who served her with summons and a copy of the petition. That no personal service of any nature was made upon Leona Anderson May in the State of Wisconsin. That neither she nor the children were in Wisconsin at the time the divorce petition was filed nor until long after the decree of custody and divorce was granted. That they at all times remained in Lisbon, Ohio. That in February, 1947, after the decree of divorce was granted, Owen Anderson came to Lisbon with a copy of the Waukesha Court Order and demanded and obtained from Mrs. May the children and took them with him back to Wisconsin.

Nothing happened during 1947, 1948, 1949, 1950, and the first half of 1951. The children remained with the father in Waukesha from 1947 until July 1951. On July 1, 1951, Owen Anderson brought the children to Columbiana County and permitted them to visit the mother for a limited period of time. The mother now refuses to surrender the children back.to the father, hence this proceeding.

When Mrs. May brought the children to Ohio in December, 1946, it was understood between her and her husbánd that it was a temporary and conditional taking until she could make up her mind regarding their marital difficulties. He permitted her to take them on this basis and if she did not return to Wisconsin, then the Court would determine the matter of custody. “The Court” unquestionably meant the Waukesha Court which was the only Court having jurisdiction over them at the time of their discussions. She came to Ohio for a special and temporary purpose when she left Waukesha. She was uncertain as to her ever coming back. Something occurred after she left which induced her to adopt Ohio as her permanent home.

Did the Court of Waukesha County, Wisconsin, in the divorce proceeding on substituted service against the mother when both the mother and children were in Ohio, have power or control over the children?

Did the mother’s change of domicil effect a change of domicil for the children?

The summons served in the divorce case amounted to constructive service or service by publication, although the Sheriff of Columbiana County, Ohio, personally handed Mrs. May the summons and copy of the petition.

WISCONSIN STATUTES, 1949

Section 262.12

“When the summons cannot with due diligence be served within the state, the service of the summons may be made without the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or proper party to an action or special proceeding as provided in Rule 262.13 in any of the following cases: (1) (21 (3) (4) (5) when the action is for divorce or for annulment of marriage.”

Section 262.13

“In the cases specified in Rule 262.12 the plaintiff may, at his option, and in lieu of service by publication, cause to be delivered to any defendant personally without the state a copy of the summons and verified complaint or notice of object of action as the case may require, which delivery shall have the same effect as a completed publication and mailing.”

Where were these children domiciled during the period of time between the filing of the divorce petition and the granting of the decree?

Two elements must concur to establish domicil — (1) residence, and (2) intention of remaining.

The domicil of a minor child normally is that of the father. A minor cannot change his domicil. Was the removal of these three children from Waukesha under the circumstances, such as to effect a termination of their domicil with the father there in Wisconsin? We think not. '

She brought them to Ohio on a temporary and conditional basis with the understanding that they should be returned if she decided to separate from her husband. She decided to separate and then it was that the temporary permission ended. Until she said to him over the phone on New Year’s Day of 1947, “Owen, I’m not coming back.”

The children were domiciled in Wisconsin until December 26, 1946, where the Wisconsin Court had exclusive jurisdiction and that Court did not lose its jurisdiction by reason of their going with the mother to Ohio to meditate and decide her program of life for the future. Temporary absence of the children from Wisconsin could not change their legal settlement. The Wisconsin Court did not lose jurisdiction while they were temporarily in Ohio.

While the facts in each of these cases are entirely different from the case before us, we believe the reasoning in the cases of Cohen v. Judge, 13 Oh Ap 449, Keenan v. Keenan, 17 Ohio Dec. N. P. 581, Block v. Block, 110 Oh St 392, supports our conclusions.

The children were in Ohio with his consent and permission. After that announcement, he demanded that she return the children, which demand was ignored. The children from that time forward were in Ohio against his will and without his permission. It was during that period of time that the divorce proceeding's were commenced and concluded. The change of the domicil of the mother under these circumstances, did not in any wise effect a change of the domicil of the children.

The Court had no alternative but to allow the writ and its judgment on that order will be affirmed. Judgment affirmed.

PHILLIPS, J, concurs.

By NICHOLS, J.

I cannot concur in holding that the Court of Waukesha, Wisconsin, had jurisdiction to award custody of the minor children of the parties to that action, for the reason that such children were not within the jurisdiction of that Court at the time the petition for divorce was filed, or at the time the decree was rendered.

Plowever, if I am right in my finding that the Waukesha Court did not have jurisdiction, then this Habeas Corpus proceeding in Columbiana County was one solely to determine which of two parents having equal rights to children should be awarded custody thereof since the parents are not living together and cannot have joint custody and control thereof.

In this case, in the proceeding in Columbiana County, the Court’s judgment awarding custody to the father is entirely supported by the evidence and is for the best interests of the children.

I, therefore, concur in the judgment for the reasons stated.


text:
    REISER et, Plaintiffs-Appellants, v. OMAR BAKING COMPANY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4479.
    Decided October 18, 1950.
    Wiles & Doucher, Jack R. Alton, of Counsel, Columbus, for plaintiffs-appellants.
    O. C. Ingalls, Gene A. Jones, Fred C. Hauck, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is an appeal from a judgment of the Common Pleas Court affirming a judgment of the Municipal Court of Columbus for defendant, Omar Baking Company, and dismissing plaintiff’s petition.

The cause was tried to a judge without a jury who found upon the evidence that the plaintiff was chargeable with contributory negligence which precluded a judgment in his favor.

There was an issue whether or not plaintiff had violated §6307 GC in leaving his automobile standing in the traveled portion of the highway which issue the trial judge evidently resolved against the plaintiff.

That plaintiff left his automobile parked in the traveled part of the highway is established. How long it was so parked is in dispute. Whether or not it was practicable to seasonably move the auto from the highway, or if it was disabled in such a manner and to such an extent that it was impossible to avoid stopping and temporarily leaving it on the highway were factual questions.

Likewise, the effect of §12606 GC upon the conduct of plaintiff with respect to the observance of §6307 GC was for the consideration and determination of the trier of the facts. These sections are not inconsistent in their provisions. Of course, the trial judge may have found that the evidence would not support the conclusion that plaintiff was at the time and place of the accident observing the duties enjoined upon him by §12606 GC. If so, the section had no application, but, if he found with the plaintiff on this contention, that fact should, and no doubt was considered as it reflected upon the practicability of his removing his car from the highway. ■ Upon the record as it pomes to us the judgment of the trial judge was not against the manifest weight of the evidence or contrary to law and the judgment affirming it must be affirmed. It will be so ordered.

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


author: By BADER, J.

text:
    LAWSON v. HUDEPOHL BREWING COMPANY.
    Common Pleas Court, Hamilton County.
    No. A-12690.
    Decided October 19, 1951.
    Alfred D. Meitus, Cincinnati, for plaintiff.
    Elmer E. Strasser, Cincinnati, for defendant.
   OPINION

By BADER, J.

This case comes before this court to be heard on the “Petition of Discovery” wherein the defendant alleges that plaintiff has in his possession certain evidence which is necessary for it to have before it can prepare its answer.

The original petition in the case contains the following allegation:

“Plaintiff says that defendant impliedly warranted said quart bottle of Hudepohl Beer to be pure, safe and reasonably fit for human consumption but that said beer contents were unwholesome, impure and contaminated with two dead flies and unfit for human consumption; that by reason of such foreign bodies present, the quality of said beer contents was injuriously affected.”

Defendant further alleges that demand has been made on the plaintiff for the right to inspect and analyze the contents of the bottle to determine whether or not the beer was contaminated and impure. The action is brought by virtue of the authority in §11555 GC which reads in part as follows:

“When a person claiming to have a cause of action, or a defense to an action commenced against him, without a discovery of the fact from the adverse party, is unable to file his petition or answer, he may bring an action for discovery, setting forth in his petition the necessity therefor, and the grounds thereof, with such interrogatories relating to the subject matter of the discovery as are necessary to procure the discovery sought, which, if not demurred to, must be fully and directly answered under .oath by the defendant. Upon the final disposition of the action, the costs thereof shall be taxed in such manner as the court deems equitable.”

In Pomeroy’s Equity Jurisprudence, 5th Ed. p. 357, par. 209, it is said:

“Upon all matters affecting the merits, the disclosures that may be compelled, materiality, privilege, etc., the courts uniformly hold that these statutory proceedings take the place of the equity suit for a discovery, and are governed by substantially the same rules.”

Also Driver v. Woolworth Co., 58 Oh Ap. p. 299, 12 O. O. 188, syl. 3.

The questions for this court to determine are:

1. Is the knowledge of the actual physical content of the beer bottle important and necessary for the preparation of defendant’s case? and

2. Is the defendant entitled to know the actual ingredients of the bottle which is alleged to be “unwholesome, impure and contaminated- — unfit for human consumption and — injuriously affected”?

The subject matter about which the whole cause of action evolves is the contents of one of defendant’s bottles.

In Wigmore on Evidence, Vo). VIII, 3rd Edition, p. 209, Section 2221 is found the following statement:

“The testimonial duty for witnesses in general requires disclosure of facts in any and every feasible form, including such evidence as is available through inspection of the witness’ premises or chattels, either by the tribunal itself or by other witnesses under order of the Court (ante, Sections 2194, 2216). There is no reason why a party should be privileged more than other persons in this respect. Not only, as in the case of corporal exhibition (ante, Section 2220), is the absence of such a privilege deducible by implication from the statutes making parties compellable generally.”

In Section 2194 is found the following:

“If a person, by virtue of his very existence in civilized society, owes a duty to the community to disclose for the purposes of justice all that is in his control which can serve the ascertainment of the truth, this duty includes not only mental impressions preserved, in his brain and the documents preserved in his hands, but also the corporal facts existing on his body, and the chattels and premises within his control. There- can be no discrimination. The latter forms of disclosure, though more rarely asked for, may be not a whit the less necessary. They are included in the general duty.” Inasmuch as the plaintiff’s whole case depends on the contents of the bottle it appears to the court that the physical content of the bottle is important to defendant’s case also, and in view of the allegations in plaintiff’s petition, the jury at the time of the trial should know the analysis of the contents and use that evidence for whatever it may be worth.

Counsel for the plaintiff contends that an analysis at this time would be to no avail because the bottle has been in a vault since March 1951, and a chemical analysis would not be the same now as it was in March. The question before the court is whether or not defendant .has the right to inspect and analyze the contents of the bottle. The chemical content can only be determined after it has been inspected.

The court is of the opinion that the actual physical content of the bottle is important and necessary for the preparation of defendant’s case and the defendant is entitled to know the actual ingredients of the bottle.

Accordingly the relief prayed for in defendant’s “Petition for Discovery” is allowed if the inspection and analysis can be made without the destruction of plaintiff’s evidence.

It is suggested by the court that if the chemical analysis is to be made that the plaintiff and defendant agree as to who should make the analysis. If such an agreement cannot be made the court will appoint a reputable chemist to make the analysis upon the deposit of the cost of the analysis.