author: By HORNBECK, PJ.

text:
    TAYLOR et, Plaintiffs-Appellees, v. SHIELDS, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2163.
    Decided December 7, 1951.

      Froug & Froug, Jack Froug, of Counsel, Dayton, for plain - tiffs-appellees.
    Coolidge, Becker, Wall & Wood, Pierce Wood, of Counsel, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court granting, in part, the relief sought by plaintiffs in their petition. Plaintiffs’ next of kin of Leon W. Taylor, deceased, sought to have a deed for certain property described in the petition from Leon W. Taylor to defendant Mary L. Shields cancelled because at the time that the deed was executed the grantor was of unsound mind, incapable of appreciating the nature of the transaction and the defendant exercised undue influence upon Taylor to cause him to make the deed.

On request of counsel the trial judge made separate findings of fact (28) and conclusions of law (8) and thereafter amended findings of fact Nos. 14, 20 & 25 and made additional findings of fact Nos. 29, 30, 31 & 32 and amended conclusion of law No. 4. After judgment, motion for new trial was filed and overruled.

The errors assigned are that the findings of fact, conclusions of law and judgment of the court were not sustained by sufficient evidence and are contrary to law. A. I. That the Court’s finding that Taylor “was in poor physical condition, of weak mind and was not clearly capable of thoroughly understanding and appreciating the nature of. a transaction entered into by him on that date with the person standing in a confidential relationship with him,” is not sustained by the evidence and is contrary to law and the evidence. A. 2. That the Court’s finding that the value of Mrs. Shields promise to provide living quarters for Taylor and his father for the former’s life, was only nominal, is not sustained by the evidence and is contrary to law and the evidence. A. 3. The Court’s inferential finding that there were circumstances of undue influence and advantage, is not sustained by the evidence and is contrary to law and the evidence. B. The Court’s conclusion of law that a confidential relationship existed, is not sustained by its findings of fact; is not sustained by the evidence, and is contrary to law and the evidence. C. The final decree of the Court is not sustained by sufficient evidence, and is contrary to law. II. The Court erred in admitting the testimony of Dr. Abe Perry.

Upon the assignments directed to the insufficiency of proof or that the findings and judgment were against the weight of the evidence, every reasonable intendment must be indulged in favor of the findings if they are consistent one with the other. It would serve no good purpose to elaborate in detail the evidence appearing in the record which is voluminous. We have read it in its entirety and find no one of the assignments of error under 1, AI, 2, 3 & B, well made.

It is urged by the appellant that a confidential relationship between the defendant and deceased Taylor did not appear from the evidence and is not supported by the findings of fact. Many cases are cited wherein the relationship under consideration was held to be confidential and in no one of them do the facts parallel those found in the instant cause. That a confidential relationship could exist between Taylor, the decedent, and Mrs. Shields, is evident. In 15 C. J. S. it is said that the term “confidential relationship”:

“is a very broad one, and is not at all confined to any specific association of the parties to it. In its broadest connotation, the phrase embraces those multiform positions in life wherein one comes to rely on and trust another in his important affairs, both technical fiduciary relations and those informal relations which exist whenever one man trusts in and relies upon another. While its more frequent illustrations are between persons who are related as trustee and cestui que trust, guardian and ward, attorney and client, parent and child, husband and wife, it embraces partners and co-partners, principal and agent, master and servant, physician and patient, and, generally, all persons who are associated by any relation of trust and confidence.”

It is said, that:

“it involves two elements, that of secrecy, and that of trust and confidence;” (15 C. J. S. 822, 823.)

In Addis v. Grange, Illinois Supreme Court, 357 Ill. 127, 192 N. E. 774, 96 A. L. R. 607, the President of a bank was held to be in a fiduciary relationship to a widow under the circumstances there appearing. In the 5th syllabus of this case it is said:

“A fiduciary relation and the duties there involved are not necessarily legal, but may be moral, social, domestic or merely personal.”

and in the 6th syllabus:

“A transaction between a party and one toward whom he occupies a fiduciary relationship is prima facie voidable by the latter, and, the relation being established, the burden is upon such party to show absence of undue influence by establishing that the transaction was in good faith upon his part and was equitable and just between the parties.”

What constitutes a confidential relationship between parties is a question of fact dependent upon the circumstances of each case.

It appears here that there not only was a close business relationship between Taylor and Mrs. Shields but there was a warm, personal friendship accompanied by marked affection. In certain fields it might be said Taylor would have superior knowledge but in the realm of business Mrs. Shields had superior qualification. She was a white woman, more mature in years than the defendant, a colored man. She had a better education, a wider experience than Taylor and she had been and was at the time of the transaction under consideration successful financially. On the other hand, Taylor had not been able to get ahead in money matters, was in debt, was owing Mrs. Shields a considerable sum of money, his health impaired to the extent that he was not and had not been for a long time gainfully employed and his future offered no reasonable hope for any betterment of his condition. Mrs. Shields was in close and intimate contact with Taylor and it was permissible for the trial judge to infer that she may have appreciated that his expectancy of life was short. Mrs. Shields was well and active. Taylor was and had been for months very ill and rapidly failing in health. His illness had its source in the brain. Admittedly he had a cerebral hemorrhage two days succeeding the signing of the deed. There was evidence that he had another such an attack in July, 1950, and possibly still another at an earlier date. In the transaction immediately involved it appears that counsel who prepared the deed and escrow agreement was first contacted by Mrs. Shields and given the facts from which these documents were prepared. The purpose to be accomplished by the transaction between the parties as communicated to counsel was to assure Mrs. Shields repayment of money that she had theretofore advanced or would later advance for Taylor. Instead there eventuated an agreement and a deed the result of which was to consummate a sale of the real estate of Taylor to Mrs. Shields in return for which Taylor had the assurance only that his mortgage indebtedness of $3500.00 and his indebtedness to Mrs. Shields of $1865.00 would be liquidated together with the promise of Mrs. Shields to provide quarters for Taylor and his father so long as Leon W. Taylor should live. It is true that Mrs. Shields also agreed-to expend $1000.00 in improving the real estate. But this was of no benefit to Taylor. Had Taylor been in normal health, the value of the promise to provide quarters for him and his father would have been substantial but the trial judge had the right to find, as he did find, that in the situation as presented to Mrs. Shields at the time that the deed was executed, this promise on her part was of little consideration to Taylor.

The Court was well within its province in concluding that Taylor had no independent advice respecting his rights under the escrow agreement and the deed. At the time that they were signed Taylor also executed a Will wherein Mrs. Shields was the principal beneficiary, all other bequests in the Will totaling $20.00 and she was made his sole executrix without bond. Prior to the time that the instruments were taken to the home of Taylor he had received no explanation of their purpose or content except that which was given to him by counsel for Mrs. Shields, who was escrow agent, by telephone.

On the occasion when the instruments were signed, which disposed of all of his estate here and hereafter, the total time taken by Taylor to consider their import and effect was fifteen minutes to one-half hour. The trial judge had the right to conclude upon the findings thus developed that Taylor did not appreciate the full import of the deed and escrow agreement when he signed them; that Mrs. Shields was in a superior and dominant position to Taylor not only individually but through her attorney; that Taylor was not on an equal footing with Mrs. Shields.

It is significant also that Taylor as late as July, 1950, expressed a purpose, in his own right, to convert his home into apartments. By the deed and escrow agreement, this purpose was completely abandoned and taken over by Mrs. Shields. This change of purpose further supports the conelusion that Taylor may not have understood that he was losing all title to the real estate, all authority as to the conversion of the property into apartments, its rental, the management thereof and the income therefrom.

But is is said that the findings of fact do not support the conclusion of law that there was a confidential relationship between Taylor and Mrs. Shields. Appellants point out particularly findings of fact Nos. 4, 5, 7, 8 & 13 as being all of such findings as could have any bearing upon the conclusion of the confidential relationship of Mrs. Shields to Taylor. There are others for instance Nos. 3, 27 and those pertaining to Taylor’s state of health. We are of the opinion that No. 4 as set out in the original conclusions of law and the amendment thereto support the ruling of the Court that the burden rested upon the defendant to prove that the grantor understood the nature and effect of the transaction involved.

Testimony of Dr. A. Perry. Without stating the evidence to support our conclusion we are satisfied that the testimony of Dr. Perry was improperly received. Sec. 11494-1 GC. It clearly appears, although Dr. Perry was related by blood to Taylor and received no compensation for his services on behalf of Taylor, he secured the information to which he testified from his relationship as a physician to Taylor, his patient. It is true that he did not thus receive all of his information but the questions propounded required answers based upon the information which he secured from his patient as his physician. He was incompetent to testify in that regard.

A full consideration of the cases upon the admission or rejection of evidence as to privileged communications are set forth in three groups in Carson v. Beatly, Exrx., etc., 86 Oh Ap 173, 54 Abs 399, 82 N. E. (2d) 745. The communication to Dr. Perry comes within the first group.

But the determinative question respecting this testimony improperly received, is whether or not it was prejudical to the defendant upon all the facts appearing. In the original findings of fact No. 25 it is said:

“On August 2, 1950, Leon U. Taylor was in poor physical condition, of weak mind, was incapable of knowing and appreciating the nature of the transaction entered into by him on this date and was incapable of being dealt with equitably by a person in a confidential relationship with him.”

In the amended finding of fact No. 25, this appears: “Standing alone- without the other facts and circumstances, with respect to his physical condition and relationship to the defendant, surrounding the conveyance of this property, Leon W. Taylor, on August 2, 1950, was sufficiently competent to dispose of his property by deed, but the Court must consider all of the other evidence in this case, to determine whether or not this conveyance should be set aside under the rules and principles of equity; although on August 2, 1950, Leon W. Taylor was sufficiently competent to dispose of his property by deed, he was in poor physical condition, of weak mind and was not clearly capable of thoroughly understanding and appreciating the nature of a transaction entered into by him on that date with a person standing in a confidential relationship with him.”

Upon the testmony of Dr. Perry, Taylor, at the time of the transaction in question and for a considerable period of time prior thereto, was suffering from cerebral neurasthenia, progressive paralysis, was insane and entirely incapable of appreciating the nature of any business transaction and was unable to sign his own name to a document. It is manifest that the Court did not accept this testimony because he finds to the contrary. He also makes a statement to this effect in his written opinion. Upon this whole record it is manifest that the conclusions which the trial judge reached were from testimony from sources other and entirely independent of the evidence offered by Dr. Perry.

The Court held that under all the circumstances appearing, notwithstanding that Taylor had the mental ability to execute the deed under consideration, he acted without full appreciation of its import and effect because he depended upon Mrs. Shields and that the result of the transaction was highly inequitable to Taylor, a condition not realized by him. The Court found no overt fraud but that constructive fraud was established and found no breach of ethics by counsel for Mrs. Shields.

As we have heretofore said, we have resolved the evidence in its most favorable light to appellant. We realize that upon every material issue there was direct conflict in the testimony. Nor are we unmindful that there is much in this record to support a bona fide purpose on the part of Mrs. Shields to act to the benefit of Taylor. For the considerable sum of money which had been advanced to him she had no security whatever prior to the execution of the deed and Taylor could, in probability, have prevented her collection of this money due. It may be that had Taylor lived, Mrs. Shields would have done much more for him than was required under the obligation of the escrow agreement. Be that as it may, the trial judge and this Court had under consideration only the business transactions involved in the deed and the escrow agreement, the relationship of the parties thereto and their effect upon Taylor in the light of the equitable principles controlling.

The Court did not err to the prejudice of, the defendant in any of the particulars assigned.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By MERRICK, J:

license: Public Domain

text:
    MAHONEY, Plaintiff, v. SHAKER SQUARE BEVERAGES, INC., a Corporation, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 607194.
    Decided November 29, 1951.

      Kitchen & Messner, Cleveland, for plaintiff.
    Griswold, Kapp & Johnson, Cleveland, for defendant.
   OPINION

By MERRICK, J:

Plaintiff contends she was employed in the household of the purchaser of a case of ale. While removing one of the bottles from the case carton, one of the bottles exploded, injuring the plaintiff.

Plaintiff’s complaint is brought against the retailer of the ale which was manufactured and bottled in Canada under the name “Black Horse Ale.”

The theory of plaintiff’s case is bottomed upon a claim of implied warranty. Defendant demurred on the ground that no cause of action was stated. This raises two very interesting questions:—

(1) Was there an implied warranty by the retailer for the benefit of the purchaser such as would embrace a right of action growing out of damages occasioned by the unexplained explosion of the bottle?

(2) If there was such warranty, did it extend to include the servant in the household of the purchaser?

In recent years, great confusion has arisen in the attempted application of these theories, especially the one concerning the basing of a claim upon the contention that something dangerous was contained in a package of food or drink which passed through the hands of the retailer unnoticed or not possible of being noticed upon inspection and into the hands of the purchaser who was injured in its use in the ordinary and accepted way or was injured by the consumption of some portion of its contents.

Most of such confusion comes from an interpretation of or the application of the pronouncement in the year 1927 in the 4th Syllabus of the case of McMurray v. Vaughn, 117 Oh St, 236, which reads as follows:—

“Where a dealer sells an article of merchandise in the original package as it comes from the manufacturer, and the customer buys it knowing there has been no inspection by the dealer, there is no implied warranty, and, in the absence of an express warranty or representation, such dealer is not liable to the purchaser for damages caused by any deleterious substance in such merchandise, the presence of which he had no knowledge.”

A casual reading of this declaration of the law of the case would lead to a first impression that it was dispositive of the question in the instant case. However, a reading of the opinion in the case, written by Judge Matthias, gives some explanation for the theory set forth, and leads one to believe that, while the syllabus and opinion are to be considered in the light of the facts before the court in that particular case, there is much explanation and elaboration necessary to avoid the adoption of those theories as the controlling law of Ohio today.

In the MeMurray case, supra, fertilizer was purchased from a retailer and shipped on such order direct from the manufacturer to the purchaser without passing through the hands of the retailer. The purchaser contended that he used the fertilizer with the result that it killed his crop, rather than enhancing its growth, due to the fact that the bags of fertilizer contained some foreign substance which remained as a result of carelessness in not cleaning them after such substance had been previously contained in such bags. The retailer sued the purchaser on an account for the price of the merchandise. The purchaser cross-petitioned and pleaded a cause in tort for the injury sustained. Much of the opinion of the court is contained in a discussion of the error of permitting the defendant to set up a “counter-claim” in tort in an action which arose out of contract. On page 241 of the opinion the court recites that in that case there were no averments of warranty, express or implied, and the defendant’s averments were only such as constitute a cause of action in tort and no reliance upon a cause of action ex contractu. The court then follows with the most interesting dictum in the case and the one which explains the reasoning and ultimate decision of the court. On page 242 of the opinion is contained this language:—

“The defendant’s cross-petition not only set out a cause of action in tort, but it failed to state any cause of action in contract. If defendant had attempted to set up an action upon contract, then the provisions of the uniform sales act would apply thereto.” (Emphasis ours.)

There is much additional dicta in the opinion on .the subject of the retailer’s liabilty where the goods are sold in the original package prepared by the manufacturer and not possible of inspection by the retailer. To these expressed opinions and conclusions, the text writers and later decisions have directed their criticisms mostly upon the side of the theory that the law laid down in the MeMurray case is not to be adopted as a general rule but is rather to be criticised as going too far in declaring a doctrine that should be closely confined as the law of the case. Other versions seem to indicate that the trend is away from the theory of that case and that modern trends, customs and usages have compelled a change in the application of the old common law theory that there could be no warranty without a privity of contract directly between the party producing the goods and the one using the same.

Within a few months after the decision in the McMurray case, A. C. Brightman, Professor of Law, Western Reserve University, presented an analysis and criticism of the opinion and the statement of the law contained in the syllabus. The professor’s attack upon the reasoning of the court is contained in Volume 1 of the University of Cincinnati Law Review, page 461. It concludes with the trite statement that the rule of law laid down in paragraph four of the syllabus of the case does not represent the law in any Sales Code state.

Many courts have distinguished cases involving the principle of law since the decision in the McMurray case and a few have directly and inferentially questioned its soundness. Still others have indicated that parts of the opinion and the fourth paragraph of the syllabus must be considered as mere dicta when weighing its legal impact. Sicard v. Kremer, 133 Oh St, 291; Wolfe v. A. & P. Tea Co., 143 Oh St, 647; Dow Drug Co. v. Nieman, 57 Oh Ap, 199; Goljatowska v. Albrecht, 17 Abs, 294.

In the opinion in the case of Goljatowska v. Albrecht, supra, at page 295, Judge Stevens makes the following observations in reference to the decision in the McMurray case:—

“A close scrutiny of that case, however, leads us to the conclusion that, notwithstanding some obiter dicta observations therein, it is not authority for the position taken by the defendant in error .... We are aware of a diversity of opinion among courts of last resort in the different states, as indicated in the opinion of Judge Matthias in the McMurray case, supra. Washington and Kentucky are aligned with those states holding that there is no implied warranty either as to fitness or merchantability where dairy food is sold in original packages as received from the manufacturer, without -any representation upon the part of the seller . . . . There is another line of cases, however, holding that where a sale of food for human consumption is made, such sale being in sealed containers, where no opportunity of inspection is given to the retailer, yet the retailer is liable upon his implied warranty of merchantability if the artcle sold contains a deleterious substance and damage results therefrom.”

In the case of Dow Drug Co. v. Nieman, supra, the syllabus makes the following statement as the law of the case:—

“In the sale of a cigar there is an implied warranty of merchantability by virtue of §8395 paragraph 2, GC, although the cigar is in a sealed container under a trade name; and where the vendee is injured as a result of an explosion of such cigar an action will lie against the immediate vendor.”

On page 199 of the opinion in this case, Judge Matthews discusses the McMurray case in the following comment:

“It is true that there appears in the opinion expressions to the effect that there is no implied warranty by a dealer who sells articles in the original packages as they come from the manufacturer, where the buyer knows there has been no inspection by the dealer. This statement is carried into the syllabus. No reference whatever is made to §8395 GC, and an examination of the briefs filed in the case shows that the question was not presented to the court in any way. The Supreme Court has frequently announced that the expressions in their opinions must be regarded as the opinions of the judges who wrote them, the concurrence of the other members of the court being limited to the law as stated in the syllabus, and that as to the latter it must be limited by the facts, and that when obiter creeps into a syllabus it must be recognized and so considered. Heater Co. v. Radich, 128 Oh St, 124; B & O. Rd. Co. v. Baillie, 112 Oh St, 567.”

Continuing further on page 200 Judge Matthews writes:—

“We are confronted in this case with what we consider the plain language of the statute, on the one hand, and this obiter dictum on the other. Under such circumstances it seems to be our duty to follow the statute. We are supported in our belief in the correctness of our construction of the statute by the decisions in other jurisdictions and by the decision of the Court of Appeals of the Ninth Appellate District in Goljatowska v. Albrecht (supra), after the decision in McMurray v. Vaughn, (supra). In that case (Goljatowska v. Albrecht) the court reached the conclusion that the expression on this subject in McMurray v. Vaughn was obiter dictum and, therefore, not controlling, although, of course, entitled to great weight, and, after considering the statute in the light of all the authorities, held that it imposed an implied warranty of merchantability, notwithstanding the dealer bought the goods from the manufacturer in a sealed container, under a trade name, and sold them in the same condition without any opportunity for inspection. We reach the same conclusion.”

O. Jur. in Volume 35, at page 879, discusses the McMurray case as follows:—

“There is a dictum in an important Ohio case to the effect that ‘where a dealer sells an article of merchandise in the original package as it comes from the manufacturer, and the customer buys it knowing there has been no inspection by the dealer, there is no implied warranty, and in the absence of an express warranty or representation, such dealer is not liable to the purchaser for damages caused by any deleterious substance in such merchandise, of the presence of which he had no knowledge.’ There is nothing in the Sales Act that lends sanction to such a statement. No exception is made in §8395 (1) and (2) GC, either in case of goods sold in original packages or in case of dealers in their sale of such goods. The element that is required is reliance upon the seller’s skill and judgment. The only basis upon which the dictum can stand is that in such cases a buyer is never justified in relying upon the seller’s skill or judgment. Obviously, for the effective protection of buyers, it is quite as necessary to hold the seller in these cases as in fact situations where there is an implied warranty of fitness for a particular purpose, when the defect is a latent one not discoverable by the seller or buyer at the time of the bargain, and in cases where there is a warranty of merchantability which is not lived up to because of a similar defect. It is quite as hard in such cases for the seller to discover the defects as it would be in the case of goods sold in the original package. There is no injustice done to the seller, for he, in turn, has his cause of action for breach of warranty against the manufacturer or dealer who sold him the article.”

Continuing in 35 O. Jur. pages 879 and 880, we find these observations:—

“But can it be said that the buyer, under such circumstances, is not justified in relying upon the seller’s skill and judgment? The dealer is certainly in a better position to know and ascertain the reliability of the manufacturer or wholesaler than is the purchaser. And is not this what the seller relies upon when he buys? He depends upon the seller to deal with the manufacturers and wholesalers or dealers who will supply an article reasonably fit for the purpose for which it was sold, whether the article be food in a can or tennis balls in an hermetically sealed container. However, if the buyer makes a selection on the basis of fitness for his particular use, it is obvious that he relies upon his own judgment, and §8395 (1) GC, would not be applicable. However, while such a choice upon the basis suggested would remove the possibility of an implied warranty for a special purpose, there is still the chance of holding the seller under §8395 (2'j GC, on an implied warranty of merchantability.”

To better understand the application of the facts to the statute it is necessary only to appreciate the plain meaning of §8395 (2) GC, a section of the Ohio Sales Code which has to do with conditions and warranties in contracts. The section is as follows:—

“When the goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer or not, there is an implied warranty that the goods shall be of merchantable quality.”

In the consideration of the facts in the instant case, certain statutes sometimes referred to as “pure-food laws” must be understood and applied. The sections involved are as follows:—

Sec. 5774 GC. “No person, within this state, shall .... offer for sale, sell or deliver, or have in his possession with intent to sell or deliver, a drug or article of food which is adulterated within the meaning of this chapter.

Sec. 5775 GC. “. . . . The term ‘food’ as used in this chapter, includes all articles used by man for food, drink . . . . or condiment, whether simple, mixed or compound. . . .”

Sec. 5778 GC. “Food, drink, confectionery or condiments are adulterated within the meaning of this chapter, . . . . (7) if it contains any added substance or ingredient which is poisonous or injurious to health. . . .”

Sec. 12758 GC. “Whoever .... offers for sale or sells a drug, article of food, or flavoring extract which is adulterated or misbranded as the terms .... ‘food’ . . . . ‘adulterated’ .... are defined and described by law .... shall be fined not less than twenty-five dollars nor more than one hundred dollars.”

A sale of food which is “infected” within the meaning of the Ohio pure food laws, even though the seller has no knowledge that it is so infected, violates the statute and is negligence as a matter of law. Leonardi v. Habermann, 143 Oh St, 624; Kurth v. Krumme, 143 Oh St, 638; Wolfe v. Great A & P Tea Co., supra; Rubbo v. Hughes Provision Co., 138 Oh St, 178; Portage Markets Co. v. George, 111 Oh St, 775.

Consideration is now directed to determine whether or not a bottle of ale which explodes upon ordinary handling is “of merchantable quality” within the meaning of the Ohio Sales Code. Likewise, it must be ascertained whether such bottle of ale under such circumstances contains “any added substance or ingredient which is ... . injurious to health.”

It has been held in this jurisdiction that the bottler of beverages is liable to a person injured by an explosion of the bottle on the theory of res ipsa loquitur if the evidence negatives any reasonable inference that the explosion was caused by the plaintiff or anyone else who handled the bottle after it left the control of the manufacturer and that both logic and experience support a rebuttable inference of negligence by the manufacturer while the bottle was in its possession and control. Fick v. Pilsner Brewing Co., 54 Abs 97. In the opinion of Judge McNamee is found the following language at page 104:—

“The present trend of judicial thinking is definitely toward application of the doctrine in cases involving the explosion of bottles of carbonated beverages, where the evidence excludes any efficient cause of injury except the permissible inference of defendant’s negligence. . . . Defendant’s exclusive control of the causative force of an injury may be and frequently is the concomitant of his exclusive possession and physical control of the offending thing at the time of injury. But it is true also that defendant’s control of the causative force of an injury may exist independently of another’s exclusive possession and manual control of the offending thing at the time an accident occurs. ... A manufacturer or processor may create and set in motion the causative force of an injury which those subsequently in possession of the offending product are powerless to control. It is difficult to perceive a difference in principle between these latter cases and those where a defendant’s sole power to prevent injury, by the exercise of reasonable cs«fe, results from his exclusive .possession and control of the offending thing at the time of the occurrence. In both classes of cases the defendant has exclusive control of the causative force of the injury. Whether this essential control results from manufacturing, processing or compounding a product, or inheres in defendant’s exclusive possession and control of the offending thing at the time of injury would seem immaterial. In either such circumstances there is equal warrant for the application of the doctrine.”

It is readily observed from this reasoning that the laibility in tort for the act of creating the danger in the bottle of beverage is laid directly at the door of the bottler and does not detach itself from him, regardless of the number of hands through which the usages of trade may pass the product. In the absence of some circumstance or fact showing actual knowledge on the part of the retailer or other dealer no liability could attach because of the manner of manufacture unless such liability is fixed by law. This requires an analysis of the Ohio pure food statutes referred to above to determine whether the sale of a bottle of ale containing gas, air or other pressure or ingredients such as would explode the bottle on ordinary handling would come within the comprehension of any of such prohibitive statutes. This leads us directly to the questions:—

Is high pressure in the bottle part of the drink when sold and if so, is it an adulteration? Is it an ingredient which is injurious to health? Is the high pressure a component that makes the drink one which contains a deleterious substance?

If the answer to any of these questions is in the affirmative, then the bottle as sold is not of merchantable quality and the transaction would constitute a breach of warranty under the sales code.

While courts have not given much satisfaction concerning the real meaning of the word “merchantability,” it has been suggested that the word connotes “medium quality” or “fair average quality.” 35 O. Jur., 875. A warranty of such merchantability is a warranty that the goods are reasonably fit for the general purpose for which they are sold. Dunbar v. Consolidated Iron-Steel Co., 23 F. (2d) 416, writ of certiorari denied in 277 U. S., 599; Cullen v. Bimm, 37 Oh St, 236.

As most of the reported cases concerning exploding bottles of beverages are brought in tort, there is a dearth of cases which might be relied upon as precedent. A good discussion is found in the case of Tennebaum v. Pendergast, 55 Abs 231. This is a common pleas court citation in the language of Judge Leach of Franklin County. A quotation of some extracts from his opinion are helpful and I draw upon them as follows:—

“While this court would not go so far as to hold that there is an implied warranty as to containers of all goods sold and would confine such warranty to the goods alone, in some cases, yet where, as here the thing purchased is a bottle of Royal Crown Cola- — a soft drink or beverage the consuming or drinking of which drink is by common knowledge ordinarily from the bottle itself, the court is of opinion that the purchaser’s use of both bottle and the liquid therein contained are so closely associated and related that he cannot ordinarily consume the one without at the same time handling and using the other It is common knowledge that the drink is kept in the bottle till the purchaser wishes to consume the liquid. The bottle and the contemplated use thereof is much more closely related to the contents than, for instance, a crate and oranges therein contained. The court is therefore in agreement . . .-as to the applicability of the doctrine of implied warranty.”

New York has a sales statute in form almost identical with Ohio. In its application we find the interesting case of Cooper v. Newman, 11 N. Y. S., 2nd, 319 (year 1939). In the syllabus the court holds the seller liable to buyer on ground of breach of warranty for injuries sustained by buyer of syphon bottled soda water, when one of bottles exploded a few days after delivery to her apartment as buyer approached place where it had been stored. Some quotations from the opinion of the court found on page 320 are very pertinent here:—

“. . . . The doctrine of a seller’s liability for breach of warranty was for the first time extended to a defective container in Haller v. Rudmann, 2nd Dept. 249 App. Div. 831, 292 N. Y. S., 138. In that case the plaintiff sued the retail druggist from whom she purchased a bottle of alcohol. In removing the cap she cut her finger on a defective thread of the glass bottle. The opinion of the court was to the effect that the bottle was just as much a part of the sale as the contents and that the provision of the statute defining the seller’s liability for breach of warranty were applicable to the container with a latent defect .... A syphon bottle that explodes through no fault of the user, after it is filled with aerated water is unfit for the purpose for which it was made and is unmerchantable.....The fact remains that the container was an essential part of the transaction. Under the circumstances the mere fact of the explosion points to the conclusion that the bottle harbored a weak point not readily ascertainable by inspection. Here the sale was by description, the defect was wholly latent,, and inspection was impossible. In such circumstances the law casts the burden on the seller who may vouch in the manufacturer, if the latter was to blame.”

Connecticut likewise has a sales statute almost identical with our own Ohio Sales Code. In 1940, the Supreme Court of Errors of Connecticut reported a case which poses the identical question at hand: —Naumann v. Wehle Brewing Co., 127 Conn. 44, 15 Atlantic 2nd 181. The syllabus in part reads as follows:—

“Application of the statute providing that, when goods are bought by description from a seller who deals in goods of that description, whether he be the grower or manufacturer, there is an implied warranty that goods shall be of merchantable quality, is not confined to foods, but applies to bottled goods.”

In the opinion of the court at page 182 is found this language:—

“The statute makes the implied warranty that the goods are of merchantable quality a term of the contract. The furnishing of a bottle so defective that it exploded without fault on the part of the plaintiff was a breach of this warranty. There is no reason for confining the application of the doctrine to food, as claimed by the defendant.”

One of the most interesting and helpful cases cited on this subject is Ryan v. Progressive Grocery Stores, 255 N. Y., 388, 175 N. E., 105. It is a unanimous judgment of six judges then sitting (1931) in the Court of Appeals of New York. The opinion is by Judge Cardozo, then Chief Justice of that court. In the syllabus is found this paragraph:—

“Under implied warranty that bread was of merchantable quality, dealer was liable not only for price of bread containing pin, but also for special damages foreseen.”

At page 106 is this language in the opinion:

“Where the buyer specifies what he wants, he can, of course, not rely upon any superior knowledge of the seller that it will serve his purposes. If he did he must give the seller some latitude of selection. But he may still insist that it must be of a quality which will pass in the market under that description, and he may rightly rely upon the seller to secure him such a quality. The result has not been different in cases where the consumer rather than another dealer has been the victim of the wrong. Thus in Wren v. Holt (1903) 1 K. B. 610, the plaintiff was made ill through the presence of arsenic in beer, which he had bought from the defendant who was not the manufacturer. In buying the beer he asked for the product of a particular firm of brewers. A recovery was upheld for breach of an implied warranty of merchantable quality as upon a purchase by description and this though there had been no reliance on the skill and judgment of the seller. Again in Morelli v. Fitch (1928) 2 K. B., 636, there was a recovery for breach of a like warranty upon a sale of a bottle of ginger ale by the keeper of a public house. The customer had asked for ale of a particular make, trusting to his own judgment rather than to the experience of the seller. Even so, the warranty of merchantable quality was held to be a sufficient basis for the recovery of damages .... For damages thus foreseen, the buyer has his remedy, whether the warranty is one of fitness or of merchantable quality.”

Many cases raise the question as to whether or not a person injured by some article of food or other merchandise which is not of merchantable quality under the statute has a cause of action in contract for breach of warranty or whether the action is one in tort for actionable negligence. In Kniess v. Armour & Co., 134 Oh St, 432, at page 441, of the opinion of Judge Gorman is contained the following language:—

“However, the liability of Burmeister as a retailer might sound in tort as well as in contract for as has been well said the action on a ‘warranty is a hybrid between tort and contract.’ ”

In Yocham v. Gloria, 134 Oh St, 427, the subject was treated in the syllabus as follows:—

“1. Under the provisions of §8395 GC, relating to the subject of warranty, a restaurant owner who supplies his customers with water for drinking purposes from his own well impliedly warrants the reasonable fitness of such water for its intended use. 2. Under such circumstances the supplying of water that is unfit for human consumption constitutes a violation of §12758 GC, of the pure food laws of Ohio. 3. Such a violation is negligence per se.”

It seems to be the law of this state that when the ultimate consumer of goods may maintain an action in tort and one for violation of the warranty, he may choose which course to pursue or may join the two causes of action in the same complaint. Dow Drug Co. v. Nieman, supra; Baking Co. v. Trizzino, 27 Oh Ap, 475; Sicard v. Kremer, supra.

In the instant case it is to be especially noted that the plaintiff was not the purchaser of the bottle of ale which allegedly caused the injury complained of. She was a servant in the household of the purchaser and claims she was injured in the ordinary handling of the bottle in the course of her duties as such servant. In the strictest interpretation of the law of sales, there was no privity between her and the retailer whom she now sues.

Sec. 12758 GC, making it unlawful to sell diseased or adulterated provisions without making the condition thereof known to the buyer, is for the protection of persons, members of the family or guests of the buyer, who may sustain injuries by reason of eating such provisions, and its protection is not limited to the buyer alone. Drock v. A. & P. Tea Co., 61 Oh Ap, 291.

In Portage Markets Co. v. George, supra, the second syllabus reads as follows:—

“The violation of the pure food laws of this state by the sale of unwholesome meat is negligence per se, and may be the basis of recovery for damages by the user of said unwholesome meat, who suffers injury proximately resulting therefrom, provided the user is not himself guilty of negligence, in the care, preparation, cooking or in any other manner which contributes directly to his injury.” (Emphasis supplied.)

In Rubbo v. Hughes Provision Co., supra, the second syllabus reads as follows:—

“A cause of action arises in favor of the injured party against one who sells provisions in violation of §12760 GC, where such sale is made to a husband who takes the provision home for preparation and cooking, and a member of his family suffers injury proximately resulting from such, sale, there being no contributory negligence on the part of the injured party. (Emphasis supplied.)

A similar decision is found in the syllabus of A. & P. Tea Co., v. Hughes, 131 Oh St, 501.

In Sewing Machine Co. v. Feisel, 28 Oh Ap, 152, the second syllabus is as follows:—

“Manufacturer of electric sewing machine is liable to members of family in buyer’s home irrespective of contract, for negligence in failure to use ordinary care in manufacture and inspection to end that article may be properly insulated, since danger to members of family from defective appliance should be foreseen.”

Liability of bottle making company for injuries to waitress on soda bottle’s explosion held for jury under evidence of inadequate inspection. Liability may follow, though privity is lacking. Smith v. Peerless Glass Co., 259 N. Y., 292, 181 N. E., 576.

Where Coca-Cola was ordered and paid for by plaintiff’s friend, bottled beverage consumed by plaintiff was a gift and carried with it title authorizing recovery for injuries from broken glass therein on manufacturer’s implied warranty relative to purity of drink, Coca-Cola Bottling Works v. Lyons (Mississippi Supreme Court), 111 Southern 305.

In the case of Roberts v. Anheuser-Buesch Brewing Assn., (Supreme Court of Massachusetts) 98 N. E., 95, we find the following syllabus:—

“Where one buys a mixture from a druggist, who has procured it through a wholesale house from the manufacturer, and in doing so realies upon the manfacturer’s advertisement representing, as of its own knowledge, that the mixture is healthful and harmless, and where the plaintiff’s family is poisoned through using the mixture in the manner intended, he is entitled to recovery against the manufacturer in an action in tort; such representations being regarded as continuous, and intended to be relied on by all persons, down to the ultimate consumer.”

Consolidating all of the theories cited herein and applying them to the facts pleaded in the instant case, this court has arrived at the following conclusions:—

1. A bottle of ale which contains pressure or any other ingredient which causes it to explode upon ordinary handling is a dangerous instrumentality.

2. It is not of merchantable quality.

3. It is adulterated because it contains an ingredient injurious to health.

4. Its sale is a breach of warranty under the Ohio Sales Code.

5. Its sale is an act of negligence in violation of the Ohio pure food law which bans and punishes the sale of adulterated food or drink.

6. A cause of action for breach of warranty lies against the retailer.

7. A cause of action for negligence lies against the retailer.

8. The liability in either contract or tort extends to a member of the household of the purchaser.

9. A servant is. a member of the household.

10. The causes in tort and in contract may be pleaded in the same action.

The demurrer to the second amended petition is overruled and defendant required to plead under rule of Court. Exceptions may be noted.


author: By MILLER, J:

text:
    HOLETON et, Plaintiffs-Appellants, v. ELLISON et, Defendants-Appellees.
    Ohio Appeals, Second District, Shelby County.
    No. 163.
    Decided March 12, 1952.

      Blake & Lewis, Sidney, for plaintiffs-appellants.
    Frank H. Marshall, Sidney, for defendants-appellees.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Common Pleas Court rendered on the verdict of a jury in favor of the defendants. The action was one for damages for trespass upon the property of the plaintiffs.

The record reveals that the plaintiffs and defendants were the owners of adjoining farms; that there was a three acre wooded section along the common boundary, the ownership of which was in dispute; that after the alleged trespass had been committed the Common Pleas Court in an action to quiet title to this tract found the same to be in the plaintiffs.

The evidence was in conflict as to the amount of the damages incurred although the defendant, Marshall J. Ellison, admitted having entered upon this tract and removed a portion of a fence, by pulling approximately seven' posts from the ground, placing them on a pile and rolling into a roll the wire fence, which had been detached from these posts.

The first error assigned is that the verdict is not sustained by the law applicable to the evidence. We think this assignment is well made for the reason that the defendant admitted the entry and the removal of a portion of the fence. Every entry upon the land of another without a license or authorization is unlawful and constitutes a trespass for which damages may be recovered, and if not substantial, it may be only nominal. Cooper v. Hall, 5 Ohio, 321. But regardless of the amount, the unlawful entry warrants a verdict in favor of the plaintiffs. It is urged by the appellee that the Court recognized this principle when it rendered its judgment in favor of the defendants but ordered the costs taxed against them “for the reason that the jury could have found nominal damages for a trespass on plaintiffs’ land.” The trial court was of the opinion that by taxing the costs against the defendants the error in the verdict was corrected. Citing 13 O. Jur. 67, as follows:

“Reversal for Failure to Give. Although the law presumes nominal damages from the infringement of a legal right, and holds the party whose right is infringed entitled thereto without proof of actual damage, such damages are damages in name only, and it is held that, notwithstanding the case is a proper one for the allowance of nominal damages, if no actual damages are proved, the failure of the court to allow nominal damages constitutes no ground for reversal, on error, if such failure does not affect the question of costs. If, however, a judgment for the defendant carries costs, and the case is one where the plaintiff is entitled to nominal damages, the failure to grant nominal damages constitutes reversible error. But in no case will a judgment in favor of the defendant be reversed to allow a recovery of nominal damages, in the absence of a specific assignment or complaint on the ground.”

The above citation is authority for such procedure only when no actual damages have been proven, which is not the fact in the case at bar because of the admissions of the defendant.

It is next urged that the Court erred in its general charge to the jury in instructing that “the plaintiff would be entitled to recover if you find that the defendants herein caused any damages to the plaintiffs as a result of any unlawful conduct upon plaintiffs’ land.” Whether- or not the conduct of the defendant, Marshall J. Ellison (Alice E. Allison having been dismissed), was lawful was not a jury question for upon the admission of this defendant the illegality was established. The Court instructed the jury properly that title to the property was in the plaintiffs but should have further charged that the admitted entry thereon by the defendant was an unlawful entry, for which a verdict should be returned for the plaintiffs for the amount of actual damages suffered, if any, and if none, the verdict should be for the plaintiffs for nominal damages. Under the instruction given the verdict may have been returned for the defendant upon the theory that the entry was not unlawful, and. not upon the premise that the plaintiffs had suffered no damages.

The third assignment of error charges prejudicial and misleading statements by counsel for the defendants in arguing to the jury. The bill of exceptions does not contain the arguments of counsel; therefore this assignment cannot be considered.

The last error assigned relates to an omission in the Court’s charge. This alleged error was not called to the attention of the trial judge and therefore may not be taken advantage of in error proceedings. State v. Schiller, 70 Oh St 1, 8; State v. McCoy, 88 Oh St 447, 453.

The judgment is ordered reversed and cause remanded for further proceedings according to law.

HORNBECK, PJ, WISEMAN, J, concur.


author: By McNAMEE, District Judge.

text:
    In re MITCHELL.
    United States District Court N. D. Ohio, E. D.
    No. 68366.
    Decided April 22, 1952.
    Marvin L. Gardner, Cleveland, for trustee Theodore R. Spilka.
    Robert Merkle, Cleveland, for Michigan Nat. Bank.
    Milton M. Lang, Cleveland, for bankrupt.
   OPINION

By McNAMEE, District Judge.

The sole issue presented in this proceeding is — Does the issuance of a certificate of title to a motor vehicle in Ohio by the Clerk of Courts of a county other than the county in which the purchaser resides operate to invalidate the lien of a chattel mortgage noted upon the face of such certificate of title?

The Referee in Bankruptcy held that the lien of the chattel mortgage was void. To test the correctness of that decision the mortgagee, the Michigan National Bank, filed its petition for review in this court.

The facts are not in dispute. Early in the year 1950 P. W. Mitchell became the owner of a house trailer, in which he and his family resided. The trailer was situated in a trailer camp on Lorain Avenue in the Village of Ridgeville in Lorain County, Ohio. The westerly limits of Cuyahoga County, in which Cleveland is located, is less than one mile east of the trailer camp. ' In December 1950, the house trailer was destroyed by fire. Mitchell thereafter temporarily resided in the home of the operator of the trailer camp, also located in Lorain County. On January 6, 1951, Mitchell purchased another house trailer from C. N. Littlefield, d. b. a. The Roamer Trailer Mart, located at 13720 Lorain Avenue, Cleveland, Cuyahoga County, Ohio. Mitchell made a small down payment on the trailer, executed his promissory note secured by a chattel mortgage on the trailer to C. N. Littlefield for the balance of the purchase price. Mitchell also signed an application for a certificate of title to the house trailer. There was no address of the purchaser on the application at the time it was signed by Mitchell. For a valuable consideration Littlefield transferred the note and mortgage to the Michigan National Bank. The application for the certificate of title was filed with the Clerk of Courts of Cuyahoga County, Ohio, at which time the address of the purchaser appeared on the application as being 13720 Lorain Avenue, Cleveland, Ohio. This is the address of the dealer and it is clearly apparent that the insertion of this address as the residence of the applicant was a mistake, no charge of fraud or misrepresentation being made. The Michigan National Bank presented the chattel mortgage to the Clerk of Courts of Cuyahoga County for notation upon the certificate of title. On March 20, 1951, the Clerk of Courts of Cuyahoga County issued a certificate of title to' Mitchell and noted thereon that the Michigan National Bank was the holder of a chattel mortgage for the balance due thereon of $3,090. The certificate of title was delivered to the mortgagee.

On June 29, 1951, Mitchell was adjudicated a bankrupt. The Trustee in Bankruptcy instituted proceedings to sell the house trailer. The Michigan National Bank, asserting its mortgage was the first and best lien upon the trailer, filed a cross-petition praying that it be granted possession of the trailer, or, in the alternative, that upon a sale of the trailer it be paid the proceeds thereof to the extent of the balance due on the note and mortgage.

The Referee held that the mortgage of the Michigan National Bank was void because it was not filed in Lorain County, Ohio, which the Referee found to be the residence of the mortgagor, and ordered the Trustee to sell the house trailer “free and clear of such mortgage lien.”

Except for the issuance of a certificate of title in Cuyahoga County upon the erroneous recital of the applicant’s address in the application, the transaction was in all respects bona fide and valid.

Concededly. if the filing of the application for certificate of title in Cuyahoga County instead of Lorain County was such a non-compliance with the certificate of title law of Ohio as to render the certificate void, the mortgage of the cross-petitioner also must be held to be invalid.

Whether the certificate of title issued to Mitchell was valid is to be determined by an examination and consideration of the applicable sections of the certificate of title law of Ohio.

By express provision in §6290-2a GC, a house trailer is a motor vehicle. The certificate of title law of the State of Ohio, §§6290 to 6290-20 GC, became effective in 1938. It provides a uniform system of registering titles to and liens upon all motor vehicles transferred within the state. By virtue of its provisions no person can acquire title to or any interest in a motor vehicle until he shall have had issued to him a certificate of title or have delivered to him a manufacturer’s or importer’s certificate for the same. Sec. 6290-4 GC. This latter section also provides:

“No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.”

Sec. 6290-5 GC, requires that an application for a certificate of title “shall be filed with the clerk of courts oí the county in which the applicant resides if the applicant be a resident of this state or if not such resident, in the county in which the transaction is consummated.”

In the case of the sale of a motor vehicle by a dealer to a purchaser, it is the duty of the dealer to obtain the certificate in the name of the purchaser.

Certificates of title are issued in triplicate, one copy being retained by the clerk, the other copy being forwarded to the registrar of motor vehicle at Columbus, Ohio, and the original certificate being delivered to the purchaser, except where one or more liens are noted upon the certificate, in which case the original certificate must be delivered to the holder of the first lien. Sec. 6290-6 GC.

The registrar of motor vehicles is required to file all certificates and other instruments forwarded to him by the clerks of courts and to maintain indexes thereof covering the state at large. Sec. 6290-7 GC.

The section of the Act dealing with liens provides in part that mortgages, conveyances intended to operate as mortgages, trust receipts, conditional sales contracts, or other similar instruments noted by the clerk of courts on the face of a certificate of title “shall be valid as against the creditors of the mortgagor whether armed with process or not, and subsequent purchasers, mortgagees and other lien holders or claimants but otherwise shall not be valid against them.” Sec. 6290-9 GC.

In respect of the duty of lien holders, §6290-9 GC, provides:

“The holder of a chattel mortgage, trust receipt, conditional sales contract or similar instrument, upon presentation of said instrument to the clerk of courts of the county where such certificate of title was issued, together with the certificate of title * * * may have a notation of such lien made on the face of such certificate of title. The clerk of courts shall enter said notation and the date thereof over his signature and seal of office, and he shall also note such lien and the date thereof on the duplicate of same in his files and on that day shall notify the registrar who shall do likewise.” (Emphasis supplied.)

This section expressly declares that the provisions of the chattel mortgage general recording act, §§8560 to 8572 GC, shall not apply to the filing of chattel mortgages on motor vehicles. In Ohio a certificate of title is the sole evidence of title to a motor vehicle. The Act provides a system of dual recording of instruments in the respective counties oí the state and in the office of the registrar of motor vehicles at the state capitol in Columbus, Ohio. The registrar of motor vehicles is authorized and empowered to administer and enforce the certificate of title law, §6290 GC, and among the powers conferred and the duties imposed upon him are those set forth in the second paragraph of §6290-7 GC, which in part reads:

“The registrar shall check with his record all duplicate certificates of title received in his office from the clerks of courts. If it appear that a certificate of title has been improperly issued the registrar shall have the power and it shall be his duty to cancel same. Upon cancellation of any certificate of title the registrar shall notify the clerk of courts, who issued same, and said clerk of courts shall thereupon enter said cancellation upon his records. The registrar shall also notify the person to whom such certificate of title was issued, as well as any lienholders appearing thereon, of said cancellation and shall demand the surrender of such certificate of title, but said cancellation shall not affect the validity of any lien noted thereon.” (Emphasis Supplied.)

Diligent and exhaustive research by counsel has failed to disclose any reported case in Ohio or elsewhere that decides the precise issue presented. In support of the Referee’s decision the Trustee cites and relies upon an opinion of the Attorney General of Ohio (No. 1867, February 17, 1940), the syllabus of which reads:

“A lien against a motor vehicle is not valid where the certificate of title on which the said lien is noted was issued in a county other than the county in which the owner of such motor vehicle resided at the time the application for said title was made.”

In his opinion the Attorney General reasons that the provisions of §6299-5 GC, requiring that an application for a certificate of title “shall be filed with the clerk of courts of the county in which the applicant resides” is a mandatory requirement, non-compliance with which renders the certificate invalid. The opinion further holds that where the applicant for certificate of title is a resident of Ohio, a mortgage lien must be noted upon a certificate of title issued by the clerk of courts of the county where the applicant for the certificate of title resided. While the above-quoted portion of §6299-5 GC, is mandatory in terms, neither in that section nor in any other section of the certificate of title law is there any express language declaring a certificate of title mistakenly issued in the wrong county to be void. In the absence of an express declaration of invalidity or a clearly implied legislative intent of like effect, there is no sound reason for declaring a transfer of title invalid where through mistake the purchaser’s address was incorrectly stated in the application. The applicable rule is stated in 60 C. J. S., Motor Vehicles, Sec. 41, pp. 168-169 as follows:

“Where the legislature has not expressly provided that the sale or transfer without compliance with the statute shall be void or fraudulent, in order for the courts to invalidate such transfers for non-compliance it must clearly appear from the statute that the legislature so intended.”

An examination of the sections of the certificate of title law of Ohio discloses that it is not the legislative intent to render transfers of motor vehicles evidenced by certificates of title void where through mistake or inadvertence the certificate is improperly issued. The second paragraph of §6290-7 GC invests the registrar of motor vehicles with power to cancel certificates of title improperly issued, but expressly preserves the validity of liens noted upon such cancelled certificates. These provisions effectively repel the suggestion that certificates of title improperly issued are void. Manifestly, if all improperly issued certificates were void, there would exist no legal basis for the preservation of liens noted on the face of such certificates. While §6290-7 GC, refers to the powers of the registrar of motor vehicles and the effect of his cancellations of certificates “improperly issued,” the provisions of this section are binding upon the courts. They evidence a clear legislative purpose to protect lienholders whose liens are otherwise valid and who have complied with the certificate of title law in having their liens noted upon the certificate by the clerk of courts of the county where the certificate was issued. The provisions of §6290-7 GC, are m harmony with §6290-9 GC. This latter section imposes no duty upon a lienholder to ascertain or determine that the certificate of title upon which his lien is to be noted was issued in the county of the residence of the applicant for the certificate. The lienholder is not required to look behind the certificate to determine whether its issuance was in strict conformity with the formal requirements of the statute. The duty imposed upon the lienholder is that he present the instrument evidencing his lien to the “clerk of courts of the county where such certificate of title was issued.” The courts are without authority to enlarge the duty thus imposed. The chattel mortgagee here complied strictly with the requirements of §6290-9 GC. It was required to do no more. While the certificate of title upon which the lien was noted might be subject to cancellation by the registrar of motor vehicles or by the courts, such cancellation, in the absence of fraud or forgery or substantive considerations that would invalidate the title of the mortgagor, would not affect the validity of the lien of the chattel mortgagee.

While defective, the certificate of title to Mitchell was sufficient to convey title to the house trailer. There can be little doubt that if this certificate had been cancelled before Mitchell was adjudicated bankrupt he could have compelled the issuance of a certificate of title to him by the clerk of courts of Lorain County. The chattel mortgage of the Michigan National Bank was noted on the certificate of title which was in the possession of the mortgagee. The record of the mortgage appears in the office of the clerk of the courts in Cuyahoga County and also in the office of the registrar of motor vehicles at Columbus. Ohio. Notice to creditor’s subsequent lienholders and purchasers was adequate, complete, and in strict conformity to the requirements of law.

In these circumstances it must be held that the lien of the mortgagee Michigan National Bank is a valid first lien upon the house trailer. Bankruptcy courts are courts of equity. As was said in In re Lowry, 4 Cir., 40 F. 2d 321, 322:

“Under the circumstances here to take that which in all equity and justice is the property of appellant for the benefit of general creditors would not be doing equity.”

For the reasons assigned, the decision of the referee is reversed and the cause remanded with instructions to enter an o'rfler decreeing that the Michigan National Bank has the first and best lien upon the house trailer.


text:
    MITCHELL, Bankrupt, In re: SPILKA, Appellant, v. MICHIGAN NATIONAL BANK, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 11662.
    Filed February 19, 1953.
    John W. Dilgren, Lorain, Marvin L. Gardner, Cleveland, for trustee.
    Murray A. Nadler, Youngstown, Amicus Curiae, also on behalf of the trustee.
    Robert Merkle, Cleveland, for Michigan National Bank.
    Before SIMONS, Chief Judge; MARTIN and MILLER, Circuit Judges.
   This appeal having been heard upon the record, briefs and argument of counsel for the respective parties,

And the Court being of the view that the opinion of the Attorney General of Ohio construing the statute herein involved, is not controlling in the decision of this case within the meaning of the rule announced in Erie Railroad Co v Tomkins, 304 U. S. 64; In re Avery, 114 Fed (2) 768, 770, C. A. 6th; In re Zaeppel & Russell, Inc., 49 Fed. Supp. 709, 710, affirmed 135 Fed. (2) 215, C. A. 6th; Leddy v. Cornell. 52 Col. 189, 120 Pac. 153; Follmer v. State, 94 Neb. 217, 142 N. W. 908; Jones v. Williams, 121 Tex. 94, 45 S. W. (2d) 130;

And that the construction and application of the statute to the facts of this case, as made by the District Judge, is not erroneous;

IT IS ORDERED that the judgment of the District Court be affirmed on the grounds and for the reasons stated in the opinion of the District Judge.

APPROVED FOR ENTRY:


author: By SKEEL, PJ. THOMPSON, J.,

text:
    STATE, ex rel. DINELLA, Plaintiff-Relator, v. JUSTICE OF THE PEACE et, Defendant-Respondent.
    Ohio Appeals, Sixth District, Wood County.
    No. 763.
    Decided December 10, 1951.
    Cobourn, Notnagel, Smith & Moran, Toledo, Bowman, Hanna & Middleton, Bowling Green, for relator.
    Floyd A. Coller, Pros. Atty., Bowling Green, for respondent.
    (SKEEL, PJ, HURD, J, THOMPSON, J, sitting by designation from 8th Appellate District.)
   OPINION

By SKEEL, PJ.

This is an original action in this Court, seeking a writ of prohibition preventing the respondent from proceeding with the trial of an action filed in his Court, styled, State of Ohio v. Joseph Dinella. The facts in this case are not in dispute and are established by admissions in the pleadings or by stipulation.

The relator was charged in the respondent’s court with a violation of §13032 GC. It is alleged in his petition for a writ of prohibition that the respondent, Earl E. Bailey, is the duly elected and presiding Justice of the Peace for Plain Township, Wood County, Ohio, and that on February 5, 1951, a proceeding was filed in his Court charging the relator with having used licentious and obscene language in the presence of Mrs. Robert Leady, a female person, by words spoken to her over the telephone and heard by her at her residence at 705 Fifth Street, Bowling Green, Ohio, which is in Center Township, in which township there is a duly elected and qualified Justice of the Peace. Upon the relator’s arrest (without a warrant at the residence of the prosecutrix) he was taken before the respondent on complaint of the party injured, for a hearing on said charge. He plead guilty and was fined $200.00 and sentenced to six months imprisonment, five months of which were suspended upon condition that he leave Bowling Green at the expiration of one month’s imprisonment.

A motion for new trial was filed and execution of sentence was arrested pending a hearing thereon, and defendant released on a $500.00 bond. It is further alleged that the Justice of the Peace of Plain Township is without jurisdiction to entertain the cause of action herein charged against the relator and unless prohibited will act beyond his jurisdiction.

The fabts upon which the petition of the relator is based being undisputed, two questions of law are presented:

1. Where is the situs of the crime charged against relator?

2. Does a Justice of the Peace of Plain Township have jurisdiction under the circumstances of a crime alleged committed in Center Township?

The jurisdiction of a justice of the peace is as provided by statute, §13422-2 GC, which in part provides:

“A justice of the peace shall be a conservator of the peace and have jurisdiction in criminal cases throughout the township in which he is elected and where he resides, and countywide jurisdiction in all criminal matters only upon affidavit or complaint filed by the prosecuting attorney or upon affidavit or complaint made by the sheriff, the party injured, or any authorized representative of. a state of federal government, in the event there is no other court of concurrent jurisdiction other than the common pleas court, police court, or mayor’s court. * * *.”

This part of the section, in dealing with the jurisdiction of a justice of the peace in criminal matters, seeks to make available to the county prosecutor, the law enforcing officer of the state or federal government, or the party injured, who institutes the prosecution, the right to prosecute a criminal action in the court of any justice of the peace elected within any township of the county, except where another court of concurrent jurisdiction is provided by law with county-wide jurisdiction, or within the township wherein the action arose.

The words “there is no other court” refers to courts other than that of a justice of the peace. The limited interpretation contended for by relator that only in the event a township is without a justice of the peace, is county-wide jurisdiction conferred upon other justice courts, cannot be sustained.

Under the admitted facts of the case, there being no court other than the common pleas court, or the mayor’s court, in the county, with county-wide concurrent jurisdiction with that of a justice of the peace or of concurrent jurisdiction, in Plain or Center Townships, the respondent is vested with authority to hear and determine the issues in the case of State of Ohio v. Joseph Dinella, the complaint having been made by the person alleged to have been injured by the alleged unlawful conduct of defendant.

Having come to this conclusion, we find it unnecessary to determine the situs of the crime, that is, whether it occurred in Center Township, where it is alleged the prosecutrix heard the unlawful conversation of defendant, or in Plain Township from which the answer alleged the defendant made the call. We are of the opinion, however, that the situs of the crime was the township where the prosecutrix was when she received the telephone call. It was there that the words were spoken in her “hearing.”

In denying the writ of prohibition, we do not want to be understood as giving approval to the arrest of a defendant for a misdemeanor by a police officer, without a warrant, where the alleged criminal conduct of the defendant did not take place within the view of the arresting officer.

The writ is denied. Exceptions. Order see journal.

HURD, J, THOMPSON, J, concur.

THOMPSON, J.,

concurs in the decision on the ground that the offense was committed as well in Plain Township where the words were uttered, as in Center Township where the words were heard.


author: By SKEEL, PJ.

text:
    STATE, ex DINELLA, Plaintiff-Relator, v. JUSTICE OF THE PEACE COURT et, Defendant-Respondent.
   OPINION

By SKEEL, PJ.

The motion for rehearing in the above entitled case came on for hearing upon the briefs, counsel having waived argument thereon.

The Court overrules said application, because the Municipal Court Act creating the Municipal Court of Fostoria, does not confer upon that Court, under the provisions of §1579-409 GC, concurrent jurisdiction throughout the County for the trial and final disposition of misdemeanor cases. The only countywide jurisdiction conferred upon said Court in Wood County is what is known in law as committing jurisdiction, where the right to final disposition of the cause is not provided for.

Motion for rehearing overruled. Exceptions noted.

HURD, J, THOMPSON, J, concur.


author: By WATTERS, J.

text:
    HARDY v. HORST et.
    Common Pleas Court, Summit County.
    No. 177610.
    Decided April 11, 1951.

      George R. Platt, Barberton, for plaintiff.
    Gilbert Hartz, Asst. Pros. Atty., Akron, for defendants.
   OPINION

By WATTERS, J.

This matter comes before the court under the provisions, of §3180-39 GC, which in part and in substance provides:

“Any person adversely affected by a decision of a township board of zoning appeals may appeal to the Court of Common Pleas * * * on the ground that such decision was unreasonable or unlawful. The court may affirm, reverse or modify the decision complained of in the appeal.”

The statutes covering Township Zoning are §3180-26 to §3180-50 GC, both inclusive.

Sec. 3180-26 GC declares that the purpose of the legislature is “promoting public health, safety, morals or general welfare, to conserve and protect property and property values.”

Sec. 3180-39 GC provides that all meetings of the Board of Appeals shall be open to the public, which is also set forth in the Stow Township Zoning Ordinance in Article 12, Section A-2 (at page 16 topi.

The meeting held at Mr. Horst’s home, in response to his letter, as chairman, to the board members, just prior to the public meeting of May 29th, was not a public meeting, and was improper. In calling this non-public meeting, Mr. Horst wrote in part — “at which time we can completely discuss what the law is and any other factors which might come up.”

This meeting prior to the regular public meeting of the board was truly improper and should not have been called.

Of the five members on the board only three were present, one of which was the chairman, and all three voted against the appeal.

“A township board of zoning appeals is required to render findings of fact and conclusions of law, which must be journalized and included in the transcript of journal entries filed in the Common Pleas Court.”

DiCillo & Sons Inc. v. Board of Zoning Appeals, 44 O. O. 44, 59 Abs 513. This is an opinion by Judge Thomas of the Common Pleas Court of Geauga County decided on September 13, 1950. (See, also, 158 Oh St 302.)

The court also holds that the Common Pleas Court has no jurisdiction to try the matter de novo, but that the matter is an appeal on law only to the court. The appeal is governed by §12223-1, et seq., GC.

There is in the case at bar no finding of fact and conclusions of law by the board. No reason for the rejection was given.

The letter of the secretary of the board to Mrs. Hardy bases the whole denial of the appeal before the board on the grounds as contrary to Article VI, Section A-l and A-1A, to-wit:

“A building or premises within an R-2 Residence District .shall be used only for the following purposes: Single family dwelling.”

The. lot in question, No. 52 Stow Acres, was of record at the adoption and effective date of Article II, Section 1-c, page 14, which in part is as follows:

“Any lot of record on the effective date of this resolution may be used for any single family dwelling irrespective of the area of said lot; the width of the side yard of any such lot need not exceed ten percent of the width of the lot: * * * provided, however, that in no instance shall the minimum dimensions of the side or the rear yards be less than (5) and (20) feet respectively * *

In my opinion this lot being of record at the time of adoption of the above quoted section, said section applies.

The term “any such family dwelling” does not mean that only one single family dwelling can be built on a given lot.

Where there are doubts and ambiguities in any language employed, all doubts should be resolved in favor of the free use of the property involved. In other words restrictions must be strictly construed with a free use of the property in mind.

See Hunt v. Held, 90 Oh St, 280; Frederick v. Hay, 104 Oh St, 292.

Under the above section, if the lot is considered as a unit one hundred feet in width, the side yard width need not exceed ten percent of the width, or ten feet, and also the minimum side yard shall not be less than five feet.

If you treat the lot as divided equally into two lots, fifty feet in width each, then the side yard need not exceed ten percent of the fifty feet width or five feet.

The plan as proposed (See drawing, Court’s Exhibit Z) prepared by the contractor, provides a west side line for the proposed new house of seven feet.

Attention is called to the case of Utopia Realty Co. Inc. v. Cleveland Heights, 12 O. O. 332 (Common Pleas, Cuyahoga County).

(2) Syllabus.

“The court is warranted in giving relief where the zoning restrictions as applied to particular property, amount to confiscation, without any resultant benefit to the health, morals or general welfare of the community.”

The declared purpose of the legislation (§3180-26 GC) is to promote public health, safety, morals, general welfare, etc.

I believe that to prevent Mrs. Hardy from building another single residence on this 100 by 300 foot lot is unreasonable and unlawful, and confiscatory and a real hardship.

The east side line can be made ten feet instead of seven feet, which should be done.

Proper journal entry will be drawn by counsel for plaintiff to allow the house to be built with the side yard modification indicated.