author: By ROSS, J.:

text:
    J. C. HOCKETT CO., etc., Plaintiff-Appellee, v. SIMMONDS, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7021.
    Decided January 10, 1949.

      Louis R. Schear, for plaintiff-appellee.
    Freiberg & Simmonds, Cincinnati, for defendant-appellant.
   OPINION

By ROSS, J.:

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County, affirming a judgment of the Municipal Court of Cincinnati, in favor of the plaintiff.

The plaintiff, a corporation engaged in the business of owning and operating an elaborate jewelry store in the heart of the business district of the City of Cincinnati, accepted a check drawn by the defendant in payment of a thirty dollar purchase and gave the person presenting and endorsing the check $119.25, the difference between the amount of the purchase, plus tax, and $150.00, the face value of the check. When the check was presented through channels to the drawer’s bank for credit it was found that payment had been stopped by the drawer. The Plaintiff now brings this action against the drawer of the check to recover the sum of $150.00, plus interest and costs.

The answer was essentially a general denial.

It appears from the evidence that the defendant was induced to give the check in question to a person who represented herself to be “Sarah McMillan,” who was accompanied by another woman. Shortly after such person with her companion had left with the check it was discovered that the consideration for the check did not exist and that the representations made by the women inducing the defendant drawer to part with the check were wholly false and fraudulent. The check was given to the woman representing herself to be “Sarah McMillan” at the request of her companion, late Friday afternoon after banking hours. Payment was stopped on the check by the defendant drawer at the opening of the drawee bank Saturday morning, the next day following. That same Saturday afternoon, after the close of banking hours, two women entered the store of the plaintiff, made a purchase of a pen priced at thirty dollars. One of the women represented to the sales lady that she was “Sarah McMillan” and tendered the defendant’s check for $150.00 to the sales lady in payment of her purchase, endorsing the check in the latter’s presence, “Sarah McMillan, William H. Taft Road.”

It. is admitted by all concerned that the person so endorsing the check and tendering it as “Sarah McMillan” was not the person to whom the check was given by the drawer, as “Sarah McMillan.” Nor was such endorser present when the check was given to “Sarah McMillan.” The payee of the check receiving the check from the drawer defendant, understood by the drawer to be “Sarah McMillan” in no way resembled the endorser of the check from whom the plaintiff’s employee received the check. This endorser identified herself to the sales lady by presenting a “billfold”, containing a photograph, a driver's license, containing the signature “Sarah McMillan,” and “other documents.” The “billfold” and its contents were taken to the manager of the store, who authorized acceptance of the check after examination of its contents, and glancing at the endorser. No other attempt was made by the plaintiff’s employees to ascertain whether the person, to whom was given the merchandise and the balance of the amount of the check, was the actual payee intended by the drawer.

The trial court found as a fact that the companion of payee at the time the check was delivered by the drawer was the companion of the person who represented herself to be “Sarah McMillan” to the plaintiff’s employees, and who endorsed the check, but that the recipient of the check from the drawer was not present in plaintiff’s store at the time plaintiff made payment thereon. In other words, the companion of the real payee was also the companion of the endorser of the check who received the value of the check in merchandise and cash from plaintiff’s employees.

There was other evidence introduced indicating that this “companion” was present at other times and places when other checks given by the drawer defendant to the payee “Sarah McMillan,” coincident with delivery of the $150.00 check herein involved, were cashed by storekeepers, but that these women impersonating the payee were different in each case.

If the plaintiff had paid value upon the endorsement of the actual payee of the check, it would have been protected as a holder in due course. 10 C. J. Sec. p. 1089, Sec. 494 B. Bills and Notes; 8 Am. Jur. p. 314, Section 602, Bills and Notes.

See: Continental-American Bank & Trust. Co v. United States, 161 Fed. (2) 935, 42 Cal. App. (2) 536

The fact remains that the plaintiff did not pay to the actual intended payee of the check, who may have been an imposter. Nothing that the drawer did can be construed as an act misleading the plaintiff into paying to a person other than the real payee.

It is almost inconceivable that astute persons engaged in business, daily dealing with the public, conscious of the prevalence of persons who prey upon the credulity of citizens, could pay a woman entirely unknown, the proceeds of a check, presented after banking hours when it was impossible to check the validity of the instrument presented, and with but a cursory examination of papers, easily forged, which might or might not identify such person. The presence of signs in many establishments upon which is stated “No checks cashed here" indicates that not all persons engaged in business are so credulous.

The law requiring payment to the actual person whom the drawer intends and designates In a check as payee is well established. Beattie v. National Bank of Illinois 174 Ill 571, 43 L. R. A. 654. In this case it is stated at pages 656 and 657, L. R. A.:

“Nothing is better settled than that a forged indorsement does not pass title to commercial paper negotiable only by indorsement, and does not justify the payment of such paper. Here, whether the indorsement of the payee’s name was technically a forgery, or was merely a spurious and false indorsement, in either case it was inoperative to change the title to the instrument. Graves v. American Exch. Bank, 17 N. Y. 205. In Graves v. American Exch. Bank, 17 N. Y. 205, it was held that the drawee of a bill of exchange is bound to ascertain that the person to whom he makes payment is the genuine payee, or is authorized by him to receive it, that it is no defense against such a payee that the drawee, in the regular course of business, with nothing to excite suspicion, paid the bill to a holder in good faith and for value, under an indorsement of a person bearing the same name as the payee. There it was said by the court: ‘The defendants, on whom the draft was drawn paid it upon the indorsement of another Charles F. Graves, residing at or near La Salle, who wrongfully took it from the postoffice at Mendota. Such a payment, although made in good faith, did not devest or impair the title of the owner who had not seen or indorsed the paper.’ In Mead v. Young 4 T. R. 28, the action was brought by the indorser of a bill of exchange against the acceptor, the bill having been drawn by one Christian on the defendant in London, payable to Henry Davis or order; and having been put into the foreign mail, inclosed in a letter from Christian, it goes into the hands of another Henry Davis than the one in whose favor it was drawn. The defendant accepted the bill, and it was discounted by the plaintiff. It was held that it was competent for the defendant to prove that the person who indorsed to th.e plaintiff was not the real payee, though he was of the same name, and though there was no addition to the name of the payee on the bill; and it was also held that if a bill of exchange payable to A or order got into the hands of another person of the same name with the payee, and such person, knowing that he was not the real person in whose favor it was drawn, indorsed it, he was guilty of a forgery. In that case Ashhurst, J., said: ‘In order to derive a legal title to a bill of exchange, it is necessary to prove the handwriting of the payee: and therefore, though the bill may come by mistake into the hands of another person, though of the same name with the payee, yet his indorsement will not confer a title.’ In the same case Buller. J., said: I am of opinion that it is incumbent on a plaintiff who sues on a bill of exchange, to prove the indorsement of the person to whom it is really payable. * * * Now, here it is clear that the indorsement was not made by the same H. Davis to whom the bill was made payable, and no indorsement by any other person will give any title whatever.”

In Cohen v. Lincoln Savings Bank, 275 N. Y. 399, at pages 405 and 406 of the opinion it is stated:

“The rule that the payee of the check is the particular person who was intended by the drawer to be the payee can hardly be questioned. The name by which he is designated is merely the tag by which the intended person may be identified. 4 person, though bearing that name, if not the person intended, has no title to the check and cannot indorse or transfer title to it. (Graves v. American Exchange Bank, 17 N. Y. 205.) When an instrument is made ‘payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable,’ -the instrument is payable to bearer. (Negotiable Instruments Law, Sec. 28, subd. 3.) Even before the Negotiable Instruments Law was adopted, a bill payable to a fictitious payee was payable to bearer without being indorsed by the maker or the person to whom it was delivered. (Piets v. Johnson, 3 Hill, 112; Central Bank of Brooklyn v. Lang, 1 Bosw. 202; Irving Nat. Bank v. Alley, 79 N. Y. 536.) When the instrument is payable to the order of a fictitious or non-existent person, and the person making it so payable has been induced to believe that he is describing an existing person as payee, no other person can acquire any right or title to the instrument. (United Cigar Stores Co. v. American Raw Silk Co., 184 App. Div. 217; affd., 229 N. Y. 532; Shipman v. Bank of State of New York, 126 N. Y. 318.)

“Every valid instrument which is not payable to bearer must be payable to a determinate payee and where it appears that the maker intended a particular person to be the payee, the payee so intended even though designated by a wrong name and even though he induced the maker to deal with him through fraudulent misrepresentation as to his responsibility, character or name, is the real payee and can by indorsement transfer title to the instrument. ‘Although one may be deceived as to the name of the man with whom he is dealing, if he dealt with and intended to deal with the visible person before him the check may properly be indorsed by the impostor.’ (Halsey v. Bank of New York & Trust Co., supra, p. 139.)”

We are concerned here with a payer of a check asserting that it is a holder in due course, but upon an admittedly forged indorsement.

The indorser of the check was not the actual payee of the check intended by the drawer to be such payee. In such case, where a person other than the actual payee of a check indorses the same, even though bearing rightfully the name of the payee, the indorsement is ineffective to pass title to a payer and constitute him a holder in due course.

In 8 Am. Jur., p. 319, Section 605, “Bills & Notes” it is stated:

“Thus, where a bill is payable to the order of a person, and another person of the name of the payee obtains possession of it and indorses it to a party who takes it in good faith and for value, such party acquires no title to the bill. If the indorsement so made by a person who is not the real payee, but has the same name as the real payee, is made by such person with full knowledge that he is not the real payee, and with intent to perpetrate a fraud, his indorsement cannot be regarded otherwise than as a forgery.”

In Home Indemnity Co. v. State Bank, 233 Iowa, 103, at page 157 of the opinion it is stated:

“As noted in American Sash & Door Co. v. Commerce Trust Co., supra, 332 Mo. 98, 121, 56 S. W. 2nd. 1034, 1044, checks put in circulation often pass through many hands, and the drawer is not expected to verify the endorsements. ‘On the other hand, the bank by the simple expedient of requiring the last indorser to be identified and responsible, can protect itself.’ The bank may require that they furnish it security or guaranties to protect it from any loss. As said in Hays v. Lowndes Sav. Bk. & Tr. Co., 118 W. Va. 360, 366, 190 S. E. 543, 545 (quoting from Citizens Nat. Bk. v. Reynolds, 72 Ind. App. 611, 615, 126 N. E. 234, 236):

“ ‘For its own protection the bank may go further. It may refuse payment until the stranger brings in a person whom the bank knows to be financially responsible and who is willing to become an indorser.’”

“Section 9483 of the 1939 Code is simply a statutory embodiment of a rule of the ‘law merchant’ evidenced by judicial decisions from the early English courts down through the years. In Tatlock v. Harris, 3 T. R. 174, 181, Lord Kenyon said:

“ ‘* * * there is no doubt, but that the endorsee of a bill of exchange, payable to order, must in deriving his title, prove the hand-writing of the first endorser.’

“A forged endorsement nullifies the instrument as to all parties against whom the forgery is committed. The doctrine of bona fides does not apply to such a holder. He acquires no interest in it, although he may be ignorant of the forgery. The moment such a draft or check is paid by the drawee, the holder becomes liable as for money had and received. As a corollary to this rule, the holder of a check payable to order must trace his title through genuine endorsements, including that of the payee. See 8 Am. Jur., Bills and Notes, 318, 319, sections 604, 605; Citizens Nat. Bk. v. City Nat. Bk., supra, 111 Iowa 211, 216, 82 N. W. 464; annotation, 67 A. L. R. 1535 et seq.”

In 10 C. J. Sec. p. 1087, Section 494, Bills and Notes, it is stated:

“One acting on an indorsement must ascertain its genuineness at his own risk; and, where indorsement is essential to recovery, there can be no recovery if it was forged. So forgery of the payee’s name is a defense in a holder’s action against the payee, maker, or drawer; and a payee whose name has been forged may in proper circumstances recover from the drawer, drawee, or indorsee.”

See also (C) p. 1090, Id.

See: Acceptance Corp. v. Saunders, 50 Oh Ap 123.

It is true the drawer through negligence may mislead the payer and in such case the drawer is liable to the payer, even though the indorsement may be forgery by a person bearing the same name as the payee.

See, Weisberger Co. v. Savings Bank, 84 Oh St, 21. This case is cited in 10 C. J. S. 1090, supra.

In no way did the drawer in the instant case lead the payer to believe that the indorser who forged the payee’s name had any right to so indorse the check or attempt to pass title thereto.

The Common Pleas Court sustained its conclusion affirming the judgment of the Municipal Court in favor of plaintiff upon the basis of conspiracy, and authority in the indorser to sign for the real payee, and the “one of two innocent persons” rule. It must be remembered that as far as the actual payee is concerned, the evidence is silent as to what became of her. It requires the employment of conjecture to account for the presence of the check in the hands of the indorser accepted by plaintiff. It is true the “companion” was present, but how, or by what means she secured the check from the actual payee may be only surmised. There is no evidence of either conspiracy or authority. Were the loss to be thrown upon the defendant drawer, it would seem that the gross negligence of the plaintiff in paying such an amount as is herein involved to two strange women on the slightest identification, after banking hours on Saturday afternoon, to a person not the actual payee, would do violence to all the rules applicable to negotiable instruments. Certainly, the use of customary care in requiring introduction and identification of the indorser by a mutual acquaintance, as before noted, would have, to some degree at least, indicated care tending to secure the plaintiff from loss. The absence of the actual payee from this drama is a matter of speculation.

The record in this case fails to show any ground for relief in the plaintiff under the provisions of Section 8128 of the Ohio Code of Negotiable Instruments. This section provides:

“When a signature is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative. No right to retain the instrument, give a discharge therefor, or to enforce its payment against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.”

The “one of two innocent persons” rule has no application to these facts. This rule is based upon estoppel. The drawer did nothing to induce the payer to accept a forged indorsement, as has been said hereinbefore. That action was predicated entirely upon the credulity of the plaintiff payer, who failed to use the necessary precaution available to it.

An examination of the record shows no evidence upon which the plaintiff was entitled to recover, and the judgment of the trial court should have been rendered for the defendant in response to the motion of the defendant made at the conclusion of all the evidence.

Judgment may be here rendered for the defendant,

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur in syllabus, opinion & judgment.


source: Caselaw Access Project

author: By. CRAWFORD, J.

license: Public Domain

text:
    PORTNEY, Plaintiff, v. PORTNEY JEWELRY CO., Defendant.
    Common Pleas Court, Montgomery County.
    No. 101342.
    Decided November 28, 1949

      I. L. Jacobson, Dayton, for plaintiff and receiver.
    Estabrook, Finn & McKee, Dayton for movants.
    Harold Shellenbarger, Dayton, for receiver.
   OPINION

By. CRAWFORD, J.

Several manufacturers have moved for orders restraining the receiver from selling their products for less than the minimum prices established by contracts under the Fair Trade Act (§6402-2 to 6402-9 GC). Regardless of whether this is the correct procedure for raising the point, let us consider its merits.

Movants’ argument is based upon §6402-7 GC, entitled “Definitions,” and particularly upon the final paragraph thereof, which reads:

“ ‘Person’ includes individuals, partnerships, corporations, and any other business unit and/or receiver, trustee or assignee of such business units.”

Hence, it is argued that every receiver is a “person” within the provisions of the act, and is therefore bound to observe the contract prices.

The definition is not an enacting clause, but an explanation of what has been enacted elsewhere. The substance of the act itself, declaring, among other things, what a “person” may or may not do, is contained in §6402-3 GC. Therefore, let us replace the word “person,” as it appears in that section, with the pertinent adaptation of the definition of “person” from §6402-7 GC, distinguishing the definition by underscoring it.

When thus explained, §6402-3 GC is found to provide that “No contract relating to the sale or resale” of a fair trade commodity “shall be deemed in violation of any law of the state of Ohio by reason of any of the following provisions which may be contained in such contract: * * *

“(b) That the vendee or producer require any Corporation or its receiver to whom he may resell such commodity to agree that he will not, in turn, resell such commodity at less than the minimum price stipulated by such vendor or by such vendee.

“Such provisions in any contract shall be deemed to contain or imply provisions that such commodity may be resold, without reference to such agreement, in the following cases

“(c) When the commodity is sold by the order of any court of record.”

This renders the meaning clear and unmistakable that a receiver, like any other “person,” must observe the stipulated minimum prices except “When the commodity is sold by the order of any court of record;” so that the existence of the exception relieves him of the requirment to conform to such prices.

In order to sustain the movants’ contention we would have to add to the definition of “Person” in §6402-7 GC the words “or any court of record,” or to add to exception (c) in §6402-3 GC the words “except by a receiver,” or the words “on execution or foreclosure,” (movants claiming that the excepted orders of court are thus limited). Of course, we cannot legislate in any such manner, but must construe the act as framed.

The Fair Trade Act is itself and by its very terms an exception to the anti-trust act which immediately precedes it (§6390 to §6402-1 GC). It must, therefore, be strictly construed. (See case cited of Rayess v. Lane, 138 Oh St 401 at 409, 20 O. O. 514 at 518.)

The several motions are, accordingly, overruled, and the liquidation may proceed in the regular manner, in accordance with the order heretofore made.


author: By HORNBECK, J.

text:
    PIERCE, Plaintiff-Appellant, v. GOODING AMUSEMENT COMPANY, Inc., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4244.
    Decided October 17, 1949.
    W. S. Lyman, Raglan R. Reid, Columbus, for plaintiff-appellant.
    Knepper, White & Dempsey, William E. Knepper, Kline L. Roberts, of Counsel, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

The appeal is from a judgment on a directed verdict for the defendant at the conclusion of plaintiff’s case in chief.

The petition averred and the answer admitted that plaintiff, together with a young child, for both of whom tickets-had been purchased, went upon a merry-go-round operated by the defendant. It was further alleged that after the merry-go-round had started and when it was revolving at a high rate of speed the plaintiff was thrown off and injured. The averment of the petition was, “Plaintiff further says that all of the injuries which she sustained as aforesaid were directly and proximately caused by the neglect of defendant, to wit: that the defendant company failed and neglected to keep the fixtures on the said merry-go-round on which plaintiff was riding securely fastened as a consequence of which one of the fixtures came loose, striking and throwing plaintiff off said merry-go-round, * * * The answer, after admitting certain averments of the petition, plead that the plaintiff assumed the risk of her ride on the merry-go-round, and further, that the plaintiff fell or jumped from the merry-go-round to the ground. This last averment was denied in the reply.

The evidence of the plaintiff was to effect that she purchased a ticket for herself and the young baby, got onto the merry-go-round, placed the baby astride an outside horse, stood on the inside of the horse holding the baby on with her right hand and supporting herself by holding with her left hand to a pole which extended up and through the front part of the horse. She says that while in this position “this pole started wiggling and all at once something hit me and it knocked me off”. On cross-examination she stated that although the pole did not come off it did not remain rigid but wiggled, and further, that it must have been the head of the horse which struck her suddenly and knocked her off. Prom a number of witnesses it appeared that when the merry-go-round started on the ride during which the plaintiff was injured, the horses were in the usual position headed with the circular track upon which they moved; that after the plaintiff left the ride the horse upon which the baby was riding and alongside which the plaintiff was standing was turned around, the head facing the inside and the tail the outside of the merry-go-round. A number of witnesses for the plaintiff saw the position of the horse before and after the accident and Carol Mickens, who was close to the merry-go-round, said that he saw the plaintiff hit the ground and answered affirmatively to this question: “You can’t tell, but the horse came loose, and knocked her off?” It also appeared that the plaintiff watched the merry-go-round a short time before she boarded it.

The defendant at the conclusion of plaintiff’s case moved for a directed verdict on the grounds that there had been a failure of proof on the part of the plaintiff and in the alternative that if the court found that there was any evidence of negligence that it appeared as a matter of law that she was chargeable with contributory negligence. '

The trial judge sustained the motion upon both grounds and in his opinion cites Englehardt v. Phillips, 136 Oh St 73; Smith v. Puritan Springs Park Company, 26 Abs 505; Shadwick v. Hills, et al., 79 Oh Ap 143; and 20 R. C. L. 56. This latter citation to effect that,

“The basis of liability” of an owner to an invitee on his premises for the purpose of amusement “is the owner’s superior knowledge of existing dangers or perils to persons going upon the property. It is only when there are perils or dangers known to the owner and not known to the person injured that liability may be established and recovery permitted.”

The court adverted to the fact that neither actual nor constructive notice of the unsafe condition of the merry-go-round was plead.

Our question is whether or not the trial judge was correct in holding that the evidence on behalf of the plaintiff in its most favorable light to her did not require the submission of her cause to the jury.

The questions presented may be considered under four headings:

(1) Proof of the negligence if specifically charged.

(2) The right of plaintiff to the benefit of the res ipsa loquitur doctrine.

(3) Assumed risk.

(41 Contributory negligence of the plaintiff.

(1) It is doubtful if the averment of negligence is specific. It is a general statement of all the occurrences leading up to plaintiff’s injury of which she had knowledge. Although the petition charges that the defendant failed to keep the fixtures securely fastened, it does not state of what the specific negligence consisted, whether it was a failure to tighten a nut on a bolt, set a screw or do any other act which would have prevented the accident. There is no averment of notice to the defendant. Nor could there have been proof as to a failure to inspect or of any notice to the defendant’or of its knowledge of a dangerous condition other than would be inferred from the occurrences alleged and the inferences to be drawn from them. There is some authority outside of Ohio and at least one case in Ohio which would lend support to the conclusion that if the averment here was a charge of specific negligence the plaintiff made sufficient proof thereof to require the submission of her case to the jury.

It is evident that the plaintiff established the factual averment of her petition to the effect that “one of the fixtures, a horse, came loose, sriking and throwing plaintiff off said merry-go-round”.

“The owner or proprietor of a place or instrumentality of public amusement is under legal duty to his patrons to discover and remedy defects or conditions which may be hazardous to them, and to inspect and test the premises and equipment properly and frequently to ascertain whether it is safe for patrons to use.” 52 Am. Jur. 293; citing Stephens v. Akron Palace Theatre Corp. 53 Oh Ap 434; Durning v. Hyman, 286 Pa. 376, 53 A. L. R. 851.

“The owner or proprietor of a place of public amusement impliedly contracts that except for unknown defects not discoverable by reasonable means, the appliances intended for the use of patrons are safe.” 52 Am. Jur. 293, and Durning v. Hyman, supra.

“Want of knowledge of an unsafe condition in the facilities of a resort, or of defects in the construction or materials of the amusement device, which by ordinary care and proper inspections and tests could have been discovered, whether the condition or defect was latent or apparent, does not relieve the owner or proprietor for injury resulting therefrom to a patron.” 52 Am. Jur. 293, citing Birmingham Amusement Co. v. Norris, 216 Ala. 138, 112 So. 633, 53 A. L. R. 840; Firszt v. Capitol Park Realty Co., 98 Conn. 627, 120 A. 300. 29 A. L. R. 17; Waddel v. Brashear, 257 Ky. 390, 78 S. W. (2d) 31, 98 A. L. R. 553.

If, however, the condition or defect was such that the proprietor was in no way responsible or of which he did not know, and which by the exercise of reasonable care and diligence he could not have discovered, he is not liable. In Durning v. Hyman, supra, the plaintiff had entered a moving picture theater and placed herself upon a seat provided for the use of patrons. It broke and caused her to fall. The court held that the duty devolved upon the proprietor to show that reasonable diligence had been used to provide safe accommodations and that a proper inspection was made to insure their suitable condition. In Stephens v. Akron Palace Theater Corp., supra, the plaintiff in attendance at the theater of the defendant tripped over a seam of the carpet at the top of stairs leading from the foyer of the theater to the first floor. The defendant insisted that it was not liable unless it had knowledge of such defect, or unless such defect had existed for a sufficient length of time to charge defendant with notice of said defect. The court in holding against this contention cited 1 Thompson on Negligence, 2nd Edition, 996:

“Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial.”

There is analogy between the instant cause and Hilleary v. Bromley, et al., 146 Oh St 212. In this ease the Supreme Court held, although not suggested in the lower courts, that the parties sustained the relationship of bailor and bailee to each other and that both being benefited by the transaction it became the bailor’s duty to exercise ordinary care to make the chattel, the subject of the bailment, safe for its intended purpose, or to inform the bailee of any unsafe condition in the chattel which it was the duty of the bailor, in the exercise of ordinary care, to discover. We had held, 42 Abs 632, that the trial judge committed no error in directing a verdict for the defendant. Among other specifications of negligence No. 1 was that the defendants were negligent in that they failed to furnish a ladder which plaintiff could use with safety. We had relied largely upon our conclusion that plaintiff did not prove that the claimed defect in the ladder was such that it should have been discovered by the defendant in the exercise of ordinary care. Or, in other words, that notice or knowledge by the defendants of the defect claimed was not shown by plaintiff’s proof. The defendant offered no testimony because the jury was instructed at the conclusion of plaintiff’s case and there was no showing by the plaintiff of failure to inspect. Judge Hart in the opinion of the Supreme Court said that the defendant claimed that the ladders had been inspected before they were delivered to plaintiff, but the record discloses no evidence of any particular inspection by any particular person. (Emphasis ours.) Res ipsa loquitur was not involved in the case and this expression in the opinion leads to the conclusion that the defect appearing in the ladders raised an inference, at least, that they had not been inspected. The court cited Blakemore v. Bristol & Exeter Ry. Co. 8 E. & B., 1035, and Coughlin v. Gillison, 1 Q. B. 145, for the proposition that,

“such bailor is under obligation to use reasonable effort to anticipate danger by discovering defects which may exist in the chattel bailed.”

Reliance was also placed on 1 Thompson, Commentaries on Law of Negligence (2 Ed.) 619, Section 679; Mayhew v. Sullivan Mining Co., 76 Me. 100; Hozian, an Infant, v. Crucible Steel Casting Co., 132 Oh St, 453, 9 N. E. (2d) 143, 112 A. L. R., 333, to the effect that the plaintiff, standing in the relationship of invitee of the defendants, was entitled to be protected from unreasonable risks resulting from the condition of disrepair of the ladder or its inadequacy for the purpose for which it was supplied, and also upon 2 Restatement of Torts, 1064, Section 392, which quotation see at pages 217 and 218 of the opinion. The obligation of the bailor as to the exercise of reasonable care to have a ladder which he provides bailee under contract is that he is chargeable if he knew or should have known, or from a careful examination could have known, of the defective condition. Page 220 of the opinion.

Englehardt v. Phillips, etc., 136 Oh St 73, was determined, in part, because there was insufficient showing that any conduct of the defendant involved unreasonable risk to the plaintiff. It also appeared that the plaintiff had as full knowledge of the unsafe condition of the premises as the defendant.

The plaintiff does not urge in this court that- she made proof of specific negligence or as error the failure of the trial judge to submit this question to the jury. The defendant claims specific negligence is pleaded but not proved. Assuming that specific negligence is not proven prima facie, we are satisfied that upon the facts adduced the plaintiff had the right to go to the jury upon the application of the rule of res ipsa loquitur.

All of the elements of the doctrine appear in this record. The instrumentality which produced the injury was under the sole control and management of the defendant. The means of explaining the accident, if it occurred as testified by the plaintiff, was within the knowledge of the defendant and the extent, sufficiency and timeliness of inspections of the device obviously could be known only to the defendant. Upon the facts adduced the accident is one which the jury could have found would not have occurred had the defendant used ordinary care to maintain the merry-go-round in a safe condition. The plaintiff, therefore, was entitled to the benefit of the inference of the negligence of defendant which the jury may have drawn by the showing of the happening of the accident and the manner in which it occurred.

In Eldred v. United Amusement Co. (Ore.) 2 Pac. (2d) 1114, it was held that where a safety chain gave way on a device known as “Merry-Mix-Up” proof of this fact invoked the res ipsa loquitur rule, as did the breaking of a stirrup on a wooden steeplechase horse, Reinzi v. Tilyou, (N. Y.) 169 N. E. 101, and the breaking of an iron pipe on a rail along which a mechanical horse travelled, Greenberg v. Steeplechase Amusement Company, 291 N. Y. Supp. 512, and the failure of a moving belt to function properly, Murphy v. Steeplechase Amusement Company, (N. Y.) 166 N. E. 173, and a break in cable, Firszt v. Capitol Park Realty Company, 29 A. L. R. 29.

But it is said that the plaintiff having plead a specific act of negligence on the part of the defendant, may not rely upon the res ipsa doctrine. This court has recently, in the case of Shadwick v. Hills, et al., etc., 79 Oh Ap 143, held against the claim of the plaintiff, who had secured a judgment, that she was entitled to the benefit of the res ipsa loquitur rule in her behalf when there were specific charges of negligence in the petition and the cause had been submitted upon that theory. We are of opinion that our judgment was correct in this case because at no time before the cause reached our court on appeal was it indicated by the plaintiff that any reliance was placed upon the doctrine. Specific charges of negligence were averred and sufficient proof made as to these charges to carry the case to the jury. The pronouncement in this case is supported by Glowacki, a minor, v. N. W. Ohio Ry. & Power Company, 116 Oh St 541, first syllabus, and Beeler v. Ponting, 116 Oh St 432.

We appreciate also that in Fink v. New York Central Ry., 144 Oh St 1, and Hiell v. Golco Oil Company, 137 Oh St 180, the plaintiffs relied entirely upon the res ipsa loquitur rule and no specific averments of negligence were involved. Therefore the pronouncement of Judge Bell in the former case at page 7 was obiter, “that if the allegations of the petition and the proof in support thereof call for the application of the rule res ipsa loquitur it should be applied irrespective of whether the petition contains allegations of specific acts of negligence”. But the statement seems to be well supported by other adjudications.

It is said that res ipsa loquitur, being a rule of evidence, need not be pleaded. Fundamentally, this is true but the opposing party and the court must determine from the petition and the nature of the averments whether or not the plaintiff in the first instance is depending upon res ipsa and when the proof is in, if specific averments have been made, the trial judge must determine if there is proof tending to establish one or more of such averments. If the plaintiff, having charged specific negligence, makes sufficient proof to go to the jury there is no necessity of invoking the res ipsa doctrine which would accomplish no more than the plaintiff is already entitled to by her specific proof. Soltz v. C. R. Center, 151 Oh St 511; Winslow v. The Bus Co., 148 Oh St 101; Welch v. Rollman & Sons Co. 70 Oh Ap 515, 36 Abs 610.

(3) But it is urged that the plaintiff assumed the risk of the accident which occurred. The plaintiff assumed only such risks as were inherent in the amusement, not the risk of injury by the proprietor’s negligence. 52 Am. Jur. 300. It appears that the plaintiff had opportunity to observe the operation of the merry-go-round before she went upon it. But there is nothing in the record from which it may be inferred that when she went upon the device she had any reason to know that it was not in normal working condition. She did not assume the risk which arose by the dangerous condition caused by the loose pole and horse which developed, in so far as she knew, after the merry-go-round had started.

(4) But it is said that the plaintiff is chargeable with contributory negligence as a matter of law. We readily concede that because of some unusual circumstances appearing, namely, the fact that the plaintiff was a short person, very heavy, and that she was taking a young baby on the merry-go-round, and placed it upon a horse and stood alongside it herself, instead of taking her place in a stationary seat provided, there is presented a factual question for the jury whether or not she was chargeable with negligence contributing to her injury. Plaintiff was an athletic type of person and the jury may have been of opinion that had the device operated in a normal manner she was neither subjecting herself nor the baby to any unusual danger in the manner in which she rode on it.

However, if she is to be charged with negligence it does not follow as a matter of law because on her case it does not appear that she had notice that there was anything unsafe in any part of the amusement device before she entered upon it. The record does not disclose that there was any instability in the horse upon which she placed the child nor in the pole which she held until shortly before the time that she was thrown from the merry-go-round.

The judgment will be reversed and cause remanded.

MILLER, PJ, and WISEMAN, J, concur.


author: By THE COURT.

text:
    BENNETT, Plaintiff-Appellee, v. ALLEN et, Defendants, and ALLEN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4260.
    Decided September 28, 1949.
    Gale R. King, Columbus, for plaintiff-appellee.
    John F. Carlisle, Columbus, for defendant-appellant, Clinton E. Allen.
   OPINION

By THE COURT.

This is an appeal from an order of the court denying a motion of defendant-appellant to dismiss a petition to revive a judgment and certain proceedings in aid of execution.

Eight errors are assigned to the order of the court but they may be encompassed under two headings:

First. That the order of revivor was void for several reasons, assigned and briefed.

Second. That the proceedings in aid of execution and order to the defendant to appear and answer concerning his property was void because if it be granted that there was a revived judgment, no execution had issued thereon prior to the order-in aid.

Without setting forth the operative facts, which are somewhat extended, or discussing the questions raised by the comprehensive and complete briefs of the parties, we are agreed that the revivor of the judgment was not a void proceeding and are also in agreement with the conclusions of JudgeGessaman as to the objections urged to its validity.

Upon the second question a majority of the members of the court are of opinion that the failure of the judgment, creditor to have execution issued on the revived judgment was not essential as a prerequisite to the granting of the order in aid of execution. One member of the court is of opinion that such action was essential and necessary before the proceedings in aid of execution were in order.

The majority holds that the judgment being revived, the-executions which had been issued prior to its dormancy met the language of the statute defining proceedings in aid of execution and therefore were sufficient to support the action of the court. The member in the minority believes that proceedings in aid of execution are, as the name implies, in aid of execution. It is held in Smith v. Hogg, et al., 52 Oh St 527, that a lien may not be obtained after a dormant judgment is revived unless levy is made after its revivor. The purpose-of the proceedings in aid of execution is that first the remedy accorded the judgment creditor by execution shall be exhausted before the judgment debtor may be required to answer further concerning his property.

Sec. 11760 GC supports this conclusion in the language,

“When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment”, etc.,

the interests or property therein defined,

“Shall be subject to the payment of the judgment, by action.”

One of the statutes which follows §11760 GC, and a part of the chapter relating to proceedings in aid of execution, is §11768 GC, which provides for the examination of the debtor after return of execution. In the instant cause, no levy was ever made. In thes many years the judgment was dormant the appellant may have acquired property which could be reached and subjected to plaintiff’s judgment by execution and levy.

Because of the division of the court and the opinion of the majority that neither the revivor of the judgment nor the proceedings in aid of execution was void, the judgment must be affirmed.

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


author: By McNAMEE, J.:

text:
    MAIMONE, Plaintiff-Appellant, v. MAIMONE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21316.
    Decided December 19, 1949.
    A. R. Fioretti, Cleveland, for plaintiff-appellant.
    Ralph R. Levinson, Steubenville, for defendant-appellee.
   OPINION

By McNAMEE, J.:

This appeal on questions of law by the plaintiff husband presents important issues relating to the trial and disposition of contested actions for divorce. The record before us does not include a bill of exceptions of the proceedings at the original trial but does contain the bill of exceptions setting forth the arguments of counsel and statements of the trial court made at the hearing upon plaintiff’s motion for a new trial. From this record.the following facts appear:

Plaintiff and defendant were married in October, 1926. Three children, all of whom were minors at the times herein mentioned, were born as the issue of the marriage. On March 15, 1948 plaintiff filed a petition for divorce. On March 22, 1948, defendant filed her answer and cross-petition for divorce, alimony, support and custody of the minor children. On April 12, 1948 plaintiff filed a pleading designated as "Reply and Answer.” While the case was pending in its regular order on the docket of common pleas court, counsel who then represented defendant, decided to move to California and take up his residence in that state. For this reason defendant’s counsel sought and obtained an advancement of the case for trial. Accordingly on the 11th day of October, 1948, the case was assigned for trial and both parties with their counsel appeared in court prepared to contest tñe issues made by their respective pleadings. Thereupon as related by the trial judge at the hearing on the motion for new trial the following occurred:

“(By trial judge:) The case came into the room and following the practice that I have, I called, noting that each side petitioned for a divorce, that is to say, a petition for a divorce and a cross-petition for a divorce, we called counsel in and said to them that in my experience when — I asked whether both parties wanted to be divorced and they told me that they did and that there was no possibility of a reconciliation, and I told them that if the case went to trial the probability was, from my experience, that no divorce would be granted by me to either side, inasmuch as I do follow the law in contested cases and the law is that one side or the other must make out that the opposite side was the one who was the cause of the marital disagreement and that the other side was without fault and that evidence is very seldom produced. I said if a divorce was refused the parties would be in a very difficult situation, being married and unable to get along with one another, and suggested that they discuss the possibility — I asked them what the controversy was about, if both sides wanted a divorce and they informed me that it was on the question of alimony and I suggested that they retire and discuss that question and if -that could be settled between them then one side or the other could withdraw the petition or cross-petition and the divorce could be granted.

They discussed the matter for at ieast an hour and then told the Court that they had arrived at a conclusion and the petition was withdrawn and the case was heard on the cross-petition.” * * *

Thus it appears that acting upon the suggestion of the trial court the parties and their counsel conferred at length and then advised the court that they had agreed upon a division of property and a settlement of the claims for alimony and support. Pursuant to the suggestion made, plaintiff dismissed his petition and the defendant was permitted to proceed in an exparte hearing upon her cross-petition. Defendant was granted a decree of divorce embodying the agreement of the parties in relation to the alimony and a division of the property.

A few days thereafter, and with the consent of the attorneys who represented him at the trial, plaintiff engaged his present counsel with a view of obtaining a rehearing and an opportunity to testify in the case. Present counsel for plaintiff attempted without success to intervene in his client’s behalf before the signing and Sling of the divorce decree. The journal entry was signed and filed on October 19, 1948. Two days thereafter, not being certain whether the journal entry had been filed for record, counsel for plaintiff filed two motions,— (1) asking the court to vacate its calendar entries in the case, and (2) requesting the court to vacate the decree. In support of these motions, plaintiff asserts that he is unfamiliar with the English language and that at the time of trial he did not fully comprehend the nature and effect of the agreement suggested by the court. Accompanying each of his motions is the affidavit of plaintiff reciting “that he was confused and bewildered at the time he gave his assent to withdrawing his petition and other arrangements and that he did not fully understand same and that in the interest of justice the case should be reinstated for trial on the merits.”

Meanwhile, original counsel for defendant had moved to California and when the motions of plaintiff came on for hearing both parties were represented by counsel who were not present at the trial.

Both motions were treated by the court as tantamount to a single motion for new trial. They will be so considered upon this appeal. The trial court heard arguments on the motion from counsel for both parties and then made the statement hereinabove quoted. Plaintiff offered to testify in support of his motion but the court refused to hear him. At the hearing on the motion it was contended vigorously by counsel for plaintiff that his client’s deficient knowledge of the English language and his “confusion and bewilderment” caused him to misapprehend the effect of the agreement he had made at the suggestion of the court. Counsel for defendant argued that plaintiff’s motion was an effort to secure a modification of that part of the agreement relating to the division of property and alimony but there is nothing in the record that supports defendant’s assumption in this regard. In his motion and affidavit plaintiff made no direct reference to the financial aspects of the settlement and his counsel expressly disclaimed any purpose to obtain a modification of the decree. Plaintiff made no claim that he had been misled or deceived by his former counsel. The trial court held that by reason of the absence of such a claim plaintiff’s motion was not based upon any of the statutory grounds for a new trial and that the court was without authority to grant the relief sought. The trial court also expressed the view that plaintiff was bound absolutely by the agreement he had made.

The action of the trial court in overruling plaintiff’s motion for new trial is one of the grounds of error upon which plaintiff appeals. He also complains that serious error intervened at the original trial in the action of the trial judge in suggesting that the parties agree upon an ex parte hearing in order to permit one of them to procure a divorce. Further error is predicated on the alleged failure of the trial court to examine and inquire into the fairness of the agreement of the parties in respect of alimony and division of property.

By his affidavit plaintiff directed the court’s attention pointedly to the fact that he was a confused and unwilling collaborator in a plan that had for one of its objects the procurement of a divorce by the suppression of evidence. Had plaintiff and defendant secretly conceived and executed an agreement to suppress evidence so that either of them might obtain a divorce they would have been guilty of perpetrating a fraud upon the court by their collusive conduct. Such an agreement openly arrived at is no less repugnant to the settled policy of the law. The evil of collusion lies not alone in its secrecy but in the suppression of evidentiary facts which ought to be examined by the court and without which no true judicial determination of a party’s right to a divorce can be made.

“Collusion is a conspiracy of the husband and wife to obtain a divorce by suppression of the facts or by false and manufactured testimony.” 14 O. Jur. page 406, Section 25.

A succinct definition of collusion appears in Stewart v. Stewart 93 N. J. Eq. 1, 114 Atl. 851 as follows:

“Collusion includes any agreement between the parties as a result of which no defense shall be made to the dissolution of the marriage tie which would not otherwise be dissolved.”

From the time the legislature vested jurisdiction of divorce in the judicial branch of the government, the supreme court of the state repeatedly has denounced and warned against collusive decrees.

Paragraph 1 of the syllabi in Stoutenberg v. Lybrand, 13 Oh St 228 reads:

“1. An agreement that a defendant in a proceedings for divorce shall withdraw his or her papers and make no defense in the case, is against public policy and therefore void; and a promissory note executed in consideration and pursuance of such agreement is without valid consideration.”

In Tucker v. Tucker, 143 Oh St at page 660, Judge Williams speaking for the Supreme Court said:

“One of the aims of those protective enactments is the prevention of collusion between the parties. The court will always scan waiver of process, entry of appearance, withdrawal of answer, consent to a trial without contest, and like steps in determining whether in the light of all the circumstances collusion exists between the parties and will dismiss the action when collusive conduct is shown. * * *”

And in State ex rel Haun v. Hoffman, 145 Oh St 31, Judge Zimmerman expressed the unanimous view of the Supreme Court as follows:

“Because of the interest of the public in the preservation of the marital status, divorce suits are accorded different treatment from ordinary civil actions, and it becomes the duty of the court in such cases to be vigilant against collusion and to see that there is compliance with the applicable statutes. 14 O. Jur., 377, Section 3; 20 Ann. Cas. 341; Divorce of course is entirely a statutory matter.”

It is inconsistent with the duty of judicial vigilance against collusion for a trial court to advise or encourage the withdrawal of one of the parties to a contested action for divorce to permit the other party to obtain a decree in an ex parte hearing. It is not the business of courts to facilitate the procurement of divorce decrees. The function of a trial court in divorce actions is to hear all the evidence and determine whether a true case for divorce has been made upon one or more of the grounds set forth in the statute. This does not mean that a party to a divorce action may not withdraw a pleading where he or she is unable to support the allegations thereof by evidence, or for other proper reasons. Neither does it mean that a party may not refuse to assert a meritorious defense. The law cannot compel parties to defend actions. But the law does forbid a husband and wife from altering their legal relations by contract “except that they may agree to an immediate separation and make provision for the support of either of them and their children during the separation.” §8000 GC.

A husband and wife may not agree upon a divorce nor may they agree that either of them shall obtain a divorce upon a partial presentation of facts in an uncontested hearing. Because of the importance of the subject it may not be inappropriate to restate at length the most recent declaration of the Supreme Court in respect of the public policy of the state with regard to divorce.

In Calvert v. Calvert, 130 Oh St at page 376, the Court said:

“Gathered from all the statutes, the legislative intent was plainly to give expression to well recognized legal policy. The state is concerned in the administration of justice in divorce cases and in every such case there is involved a question of public policy. Marriage is the foundation of society, and out of the nuptials there arises a social status. Marriage is therefore more than a mere contract, and to many, due to their religious belief, and the nature of the marriage ceremony, it is a sacrament. The policy of the law is to fully protect the institution of marriage, by decree of court, against dissolution through fraud, collusion or connivance or without full opportunity for investigation and hearing * *

It has been suggested that the law against collusive decrees is more honored in its breach than in its observance. We are told in argument that the enormous number of divorce cases on the docket of the Common Pleas Court and the multitude of complex social problems arising therefrom make necessary the adoption of short cut measures to insure the efficient and prompt disposition of pending cases. We answer these arguments by asserting that it is our duty to declare and apply the law as we find it. Also, it is the duty of this court and of courts of original jurisdiction to uphold the public policy of the state as declared in the authoritative pronouncements of the Supreme Court. Any action of a trial court calculated to subvert that policy is an abuse of discretion.

In a strict technical sense, the trial judge was correct in asserting that plaintiff’s motion was not based upon any of the statutory grounds for new trial. No reference was made therein to any “irregularity in the proceedings” or “an abuse of discretion of the trial judge” both of which grounds appear in the record and both of which are among those specified in §11576 GC. But the statutory grounds for a new trial are not exclusive. Where the ends of justice imperatively require it, courts in the exercise of their inherent powers may grant new trials on other than statutory grounds upon motion filed within term. 30 O. Jur., 31, Section 3. Brenzinger v. American Exchange Bank, 19 O. C. C. 536, affirmed in 66 Oh St 242. Hunkier v. Mathews 13 Abs 543.

An excellent statement of this principle as applied to divorce cases is found in 17 American Juris. 371, Section 451 as follows:

“All courts of record possess inherent powers to set aside or vacate their own judgments, orders and decrees at the term at which they were rendered. Accordingly a court which grants a decree of divorce has inherent power exercisable at its judicial discretion, either upon its own motion or upon an application of a party to the divorce proceeding, for good cause and upon due notice to open, vacate or set aside a divorce decree at any time during and before the end of the same term. It has this power as a part of its necessary machinery, for the due administration of justice.”

Plaintiff is not seeking relief from a collusive compact with the defendant. If he were, there would be reason for denying it. Fultz v. Fultz, 19 Abs 331. Plaintiff claims that without understanding its full effect, he acquiesced in a plan that denied him his day in court. His affidavit supporting this claim is unimpeached. It is no answer to say that he acted upon advice of counsel. Neither counsel nor the court may author or advise an agreement between parties to a divorce action that contravenes the settled public policy state. The consequences of such an agreement are no less mischievous than those resulting from a collusive agreement between the parties. It would be a strange anomaly of logic .and policy that would approve such an agreement when openly arrived at but condemn it as a fraud upon the court if consummated secretly by the parties.

For the reasons above stated, we hold that the trial court erred, in suggesting an agreement between the parties that among other things contemplated a withdrawal of one of them from the contest to permit the procurement of a decree of divorce by the other. Also that the trial court was in error in overruling plaintiff’s motion for a new trial. While it is not claimed, nor does it appear, that the agreement of the parties in respect of alimony, support and division of property is unfair, we reaffirm the well settled rule that in actions for divorce it is the duty of the trial court to determine whether such agreements are -fair before permitting their incorporation into a decree of divorce.

Accordingly, this case is reversed and remanded with instructions to grant plaintiff’s motion for a new trial and for further proceedings according to law. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By HUNSICKER, J.

text:
    VERPLANCK, Appellee, v. MORGAN, Appellant.
    Ohio Appeals, Ninth District, Summit County,
    No. 3897.
    Decided January 23, 1948.
    Gottwald, Hershey & Hatch, Akron, for appellee.
    E. Guy Hammond, Akron, for appellant.
   OPINION

By HUNSICKER, J.

In consideration of this appeal on questions of law, we review a judgment of the Court of Common Pleas of Summit County, Ohio, which affirmed a judgment for the plaintiff (appellee herein) granted on a verdict of a jury in the Municipal Court of Akron.

The plaintiff claims that the oven of a gas stove used by her in her apartment, but owned by the defendant landlord, exploded, causing her to be injured.

Plaintiff rented and occupied an apartment in a building owned by the defendant, the gas stove being a part of the furnishings and under the plaintiff’s sole control. The oven of the stove exploded in January, 1943, after which the custodian and agent of the landlord made certain adjustments on the oven and said to the plaintiff that it was in fit condition to be used. The next time the plaintiff had occasion to use the oven — in May of 1943 — it again exploded, causing her injury.

There was no agreement on the part of the landlord to keep and maintain the stove in good working order.

We therefore have the question as to what liability attaches to a landlord who, having furnished an appliance, such as the stove, the tenant having complete control of such appliance, gratuitously adjusts the appliance, which, the next time it is used after the adjustments, explodes, causing the tenant injury.

We recognize the general rule to be that a lessor out of possession and control is not liable to a tenant for the condition of the premises, or for damages resulting therefrom, in the absence of deceit or of any agreement, or warranty, or liability created by statute.

Goodall v. Deters, 121 Oh St 432.

24 O. Jur., Landlord and Tenant, Sec. 189, p 924, and cases there cited.

Where; however, a landlord voluntarily and gratuitously undertakes, during the tenant’s occupancy of the premises, to repair the demised premises, he is bound in so doing to use reasonable and ordinary care and diligence, and will be liable for injuries caused by want of due care or skill in the execution of the work on the part of himself or his agent.

34 L. R. A. (N. S.) 806.

Horton v. Early, 134 Pac. 436; 47 L. R. A. (N. S.) 314.

48 L. R. A. (N. S.) 921.

Kirshenbaum v. General Outdoor Adv. Co., 258 N. Y. 489; 180 N. E. 245; 84 A. L. R. 645.

Gill v. Middleton, 105 Mass. 477.

32 Am. Jur., Landlord and Tenant, Sec. 679, and cases there cited.

1 Tiffany on Landlord and Tenant, Sec. 87 f(3) (p. 608).

The word “repair” according to Webster’s New International Dictionary, Second Edition, means “(1) To restore to a sound or good state after decay, injury, dilapidation or partial destruction * * *. (3) To remedy, heal, make right, or mend * * These definitions of “repair” are sufficiently comprehensive to include the adjustment of the burners on the landlord’s stove in the possession of the tenant.

In this case the inference may be properly drawn from the established facts that the repairs were insufficient, and that the tenant, by reason of the agent’s assurance that the oven was fit for use, attempted to operate it, to her damage. In the case of ineffectual repairs, if they are made to appear sufficient and lead the tenant to use the appliance so repaired, to her damage, a liability may arise against the landlord for his negligence. We believe, as was said by Judge Cardozo in Marks v. Nambil Realty Co., 245 N. Y. 256, at p. 258, that: “The tenant does not have to prove that by the negligent making of the repairs what was wrong has been made worse. His case is made out when it appears that by reason of such negligence what was wrong is still wrong, though prudence would have made it right.”

Although an interval of time elapsed between the date of the repairs and the next use of the oven, at which time it exploded, the lapse of time in and of itself did not make the receipt of the evidence of the second explosion improper.

“When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period.

“* * * the interval of time to which an inference will be allowable must depend upon the nature of the thing and the circumstances of the particular case.”

II Wigmore on Evidence (1940 Ed.), Sec. 437.

The fact that the landlord’s agent voluntarily undertook to make the repairs to the oven after the first explosion, and stated that it was then in good shape after completion of his work, and that the next time it was used it exploded, is a fact from which the jury could properly draw the inference that the repairs so made were negligently done.

The transcript of testimony does not contain the charge of the court to the jury, and hence we must assume that the matter was properly presented on the law applicable thereto.

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

Judgment affirmed.

DOYLE, PJ, and STEVENS, J, concur.


text:
    McCORMICK, Plaintiff-Appellee, v. LAKE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4261.
    Decided September 28, 1949.
    Willis H. Liggett, Columbus, for plaintiff-appellee.
    Adams, Rapp & McCann, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This action was one in forcible entry and detention originating in the Municipal Court of Columbus, Ohio. Judgment was rendered for the plaintiff and appeal taken to the Court of Common Pleas, which affirmed the judgment. Judge Randall, in a well-considered opinion, discusses all of the errors assigned, which we approve in its entirety.

When this case was assigned for hearing, counsel for the appellee appeared, but counsel for appellant was absent. He now files a motion that the case be re-assigned for hearing. This cannot be done as the court calendar is filled for the remainder of the term. As the case was well briefed and the nature of the case requires an early disposition, the motion will be overruled. Finding no error in the record, the judgment is affirmed.

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


author: By DULL, J.

text:
    STUBBS et, Plaintiffs, v. DICK et, Defendants.
    Common Pleas Court, Mercer County.
    No. 14152.
    Decided December 10, 1949.
    Short & Dull, Celina, for applicants.
   OPINION

By DULL, J.

The Trustees of the Richardson and Bretz Memorial Endowment created under the will of David Herbert Richardson, deceased, have asked this court for a declaratory judgment interpreting and construing the following provision appearing on page 3 of the will at lines 19, 20 and 21, “Games of chance, whether for pleasure or profit, shall never be permitted at any time whether sociably or otherwise”, and again on page 5 at lines 28, 29 and 30, “Games of chance whether for pleasure or profit shall never be permitted in said building at any time, whether sociably or otherwise.”

The Trustees state that certain clubs or societies, who might otherwise be entitled to the use of the Richardson and Bretz Memorial building by the provision of the will creating the trust, have asked the Trustees to permit the playing of social card games such as bridge, with or without the awarding of prizes furnished by the club, society, host or hostesses at occasional meetings in the building; and that under the provisions of the will quoted above the Trustees are uncertain as to their powers and duties in such cases. The Trustees, therefore, ask this court for direction and guidance.

All of the named defendants, having waived the issuance and service of summons and voluntarily entered their appearances, the matter has been submitted to the court on the memorandum of counsel for the Trustees and by authority of §§12102-1, 12102-4, 10504-66 and 11257 GC.

The basic question to be answered is: what is a game of chance? It matters little whether the game is for pleasure or profit, whether social or otherwise inasmuch.as the language of the will prohibits any game of chance.

On this point, one of the earliest leading cases states: “Universal acceptance of a ‘game of chance’ is such a game as is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted by chance.” State v. Gupton, 30 N. C. 271 (1848); Commonwealth v. Plissner, 4 N. E. (2d) 241 (Mass.); U. S. v. McKenna, 149 Fed 252 (1906); Vol. 4, No. 2 O. S. L. J. 238.

. But the real test is whether chance is the determining element in the outcome of the game, and not whether the game contains elements of chance or skill. Vol. 4, No. 2 O. S. L. J. 238. If chance is the determining element in the outcome of the game, then it is a game of chance. Further, if prizes or money are awarded to the winner or winners of the game, the game becomes gambling and within the prohibition of the gaming statutes of Ohio, §13054 GC et seq.

But if skill, judgment, practice or adroitness is the determining element in the outcome of the game, then it is a game of skill. “A game of skill is one in which nothing is left to chance, but superior knowledge and attention, or superior strength, agility, and practice gain the victory. Of these kinds of games chess, draughts, or checkers, billiards, fives, bowls and quoits may be cited as examples; and it is true that in these latter instances superiority of skill is not always successful. The victory is not necessarily to the swift. Sometimes an oversight, to which the most skillful is subject, gives an adversary the advantage, or an unexpected puff of wind or an innocent gravel in the way may turn aside a quoit or a ball and make it come short of the aim. But, if those instances were sufficient to make the games in which they may occur games of chance, there would be none other than games of that character. Games of skill are distinguished from games of chance in that the latter are games dependent upon chance or luck, and in which adroitness has no office at all.” State v. Gupton, 30 N. C. 271, 274; 18 Words and Phrases 64.

Further, if prizes are awarded by a host as a matter of courtesy and favor, as a reward for skill, to the winner or winners of such a game, it does not become gambling or gaming. In one of the leading Ohio cases on this question, it is stated: “If the contestant, or player risk nothing, as where prizes are offered in school by the teacher to scholars for the best essay, or in society by the host or hostess as an inducement to guests to attend social gatherings and indulge in games innocent in themselves, the winners to receive prizes as a matter of grace and favor, and as a reward for skill, it is not considered that the function embraces any gambling element, whatever other objectionable features, if any, are present; but where .the players make up by the payment of money, or other thing of value, a purse which affords the prizes, as in the ordinary raffle, the game is a gambling game, whether skill enters into the result or not.” Stevens v. The Times-Star Co. 72 Oh St 112.

Are bridge, and similar social card games, games or chance or skill?

THE ENCYCLOPEDIA AMERICANA, 1946 Edition, Vol. 5 at page 604 under the heading of Cards, by John Hubert Cornyn of the editorial staff of THE AMERICANA states:

“An immense variety of games may be played with cards, some involving chance only, others combining chance and skill, the best furnishing intellectual amusement. There are round games, in which any number of persons may join, as poker, hearts, loo, etc.; games for four persons, as whist, in its different forms, and euchre; for two, as piquet, ecarte, bezique, cribbage and pinochle, closely resembling bezique, and at present much played in the United States; and there is one game, solitare, played in many ways, at which a single person often finds both restful diversion and pleasant occupation for the mind.”

How about the game of bridge in particular?

THE ENCYCLOPEDIA AMERICANA, 1946 Edition, Vol. 4 at pages 494 and 495, under the heading of Bridge by Ely Culbertson, bridge authority and author, states:

“Bridge — a partnership game of cards played by four persons, the successor of whist and the forerunner of auction bridge in popularity; also called “bridge whist.” Bridge came into vogue about 1894, when it was introduced in the Portland Club of London by Lord Brougham, and the game remained popular for about a decade, when auction bridge quickly usurped its place.
Auction Bridge — This form of bridge was the third in succession of the partnership games of the whist family, its predecessors being whist and bridge whist. While there are still many playing auction, it has been largely supplanted by contract bridge, particularly in the larger cities. The feature of auction bridge, which gained for it almost instant popularity when the game was first introduced, was the element of competitive bidding for the privilege of naming the trump suit, this privilege being won by the player contracting to take the largest number of tricks.
Auction bridge differs from contract only in some phases of the bidding and scoring; the play is the same. The salient point of difference between auction and contract bridge is that in auction all tricks made over the book of six are scored below the line, whereas in contract only the actual number of tricks bid are scored below the line and count toward game, any extra tricks made over the number contracted for being scored above the line and not counting toward game or toward slam or rubber premiums.
Contract Bridge — This was the fourth in the succession of partnership games of the whist family, the list starting with whist and continuing with bridge whist, auction, and then contract. The essential feature of contract bridge and the point which distinguishes it from other games of similar basic makeup is that no tricks are counted toward game except those which are actually contracted for in the bidding.
If the declarer fulfills his contract, he enters “below the line” on the score sheet the point value of the number of tricks called for by the contract. These points count toward game. At the same time he enters “above the line” the points made by taking extra tricks above the number required in his contract as well as premiums for bidding and making slams (12 or 13 tricks), for winning rubbers and for honors held. These points above the line do not count toward game.
If the declarer fails to fulfill his contract, his opponents are awarded points above the line according to the number of tricks by which he fell short of keeping his prediction. One hundred points for tricks bid and made constitute a game. The rubber premium is 700 points if the rubber is won in two games with the opponents winning no game at all, and 500 points if the opponents win one of the three games. A premium of 300 points is awarded for a single game if the rubber is unfinished.”

It is, therefore, the studied and sincere opinion of this court that bridge in any form and similar social card games are games of skill and not games of chance.

It is not the intent of this court by naming one game, the game of bridge, to call into play the maxim of EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, whereby the express mention of the one game is tantamount to an express exclusion of all others. The very opposite is the intent: games, and the interest taken in them, change as does everyone and everything. There cannot be, nor should there be, any limitation on the exercise of reason and judgment on the part of those whose privilege and duty it is so to do.

Keeping firmly in mind the fundamental principles of will construction, the first in importance of which is, that the sole end in construing a will is to ascertain the testator’s intention, and others of almost equal importance, that the testator’s intention must be ascertained from the language he used in the will, that every part of the will is construed from its four corners, and that wills are liberally construed to give effect to the testator’s intention;

There appearing in the will the following significant language: On page 3, line 5, “The income from said investment, to be forever used not for profit, but for charitable and benevolent purposes — .” On page 6, line 24, “I am bequeathing all my earthly possessions for the benefit of the present and coming generations of Celina,”;

And, “Of all instruments that need the benefit of liberal construction — a construction that prefers substance to mere form — wills need it the most.” Thompson v. Thompson 4 Oh St 333, 351;

It is again the studied and sincere opinion of this court that the testator intended by his use of the words, “games of chance” to forbid gambling in any form in the Richardson-Bretz Memorial building. Further, that he intended to forbid the playing in the Richardson-Bretz Memorial building of any games of chance, per se, that is to say, games in which chance is the. determining element in the outcome of the game or games in which people ordinarily take no pleasure in them unless money or other thing of value is at stake. Further, that he did not intend to forbid the playing in the Richardson-Bretz Memorial building of games of skill, that .is to say, games ip which skill, judgment, practice or adroit-mess is the determining element in the outcome of the game. Further, that he did intend to forbid the playing in the Richardson-Bretz Memorial building of games of skill if there was any gambling connected with such playing.

Therefore, so far as it is within the power of this court to do so, this court authorizes and directs the Trustees of the Richardson-Bretz Memorial Endowment to inform the persons, clubs, societies or organizations using or which may use the Richardson-Bretz Memorial building that:

1. Gambling in any form is not permitted.

2. The playing of any game of chance, per se, is not permitted.

3. The playing of games of skill such as bridge and similar social card games with or without the awarding of prizes is. permitted, provided that any prize or prizes awarded must be furnished by the club, society, organization, host or hostess and not by the players themselves contributing money or other thing of value to a pot or purse which affords the prize or prizes.

4. The playing of games of skill such as bridge and similar social card games is not permitted if there is any gambling connected with such playing.


author: By HILDEBRANT, J.:

text:
    GARDELL, Plaintiff-Appellant, v. CINCINNATI STREET RAILWAY CO., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7062.
    Decided April 4, 1949.

      J. G. Williams, Cincinnati, for plaintiff-appellant.
    Leo J. Brumleve, Cincinnati, for defendant-appellee.
   OPINION

By HILDEBRANT, J.:

Plaintiff was injured in a collision between the automobile in which she was seated and one of defendant’s street cars. On trial, on the question of damages alone the jury returned a verdict for plaintiff, upon which a judgment was pro forma entered.

On defendant’s motion for new trial, duly filed, the following entry, entitled “Entry Setting Aside Judgment and Ordering New Trial” was journalized:—

“This cause coming on to be heard upon the defendant’s motion for new trial and the plaintiff’s motion for reconsideration of decision on motion for new trial, was argued by counsel and submitted to the Court, who, being fully advised in the premises, finds that the statements of counsel for the defendant in his argument and the statements of counsel for the plaintiff in his closing argument ‘were improper and prejudicial and are of such a nature as to prevent a fair and impartial trial’, by reason of all of which the court hereby sets aside the judgment heretofore rendered .herein and orders a new trial.
“To all of which the plaintiff excepts.”

This is the order appealed from to this Court. Defendant ñas moved to dismiss the appeal as not being predicated upon a final order.

By judicial construction of the Amended Constitution of 1912, Section 6, Art. IV, defining the jurisdiction of the Courts of Appeals, the term “Judgments” was held to comprehend all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of the parties affected thereby. Chandler & Taylor v. Southern Pac. Co., 104 Oh St, 188. In the second paragraph of the syllabus it is stated:

“An order vacating a default judgment upon motion of the defendant, filed at the same term, but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless, the court abuses its discretion in making it.”

The Appellate Procedure Act, §12223-27 GC, in providing for the exercise of the Appellate jurisdiction in law appeals refers to judgments and final orders, so that both by judicial and legislative construction, not only judgments in the technical sense, but final orders also are reviewable on appeal.

Effective 8/23/37 the legislature amended §12223-2 GC, by providing that vacating or setting aside a general verdict of a jury and ordering a new trial was a final order. Hoffman, et al. v. Knollman, et al., 135 Oh St, 170, held the amendment unconstitutional, and stated in the 2nd and 3rd paragraphs of the syllabus:

“An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.
“The jurisdiction of the Court of Appeals is conferred by Section 6, Article IV of the Constitution, and cannot be enlarged or curtailed by legislative action.”

The present amended §12223-2 GC, passed after the Constitutional Amendment of November 7th, 1944, effective January 1, 1945, became effective on September 30, 1947. The petition herein was filed October 15, 1946, so that §12223-2 GC, in its present form has no application to this case. Von Gunten. v. New Justice Coal Co., 147 Oh St, 511.

In Steiner v. Custer, 137 Oh St, 448, it is stated in the first and second paragraphs of the syllabus:

“The granting of a motion for a new trial is not such a final order as may be reviewed on appeal, unless it clearly appears that the court granting such motion abused its discretion in so doing.
“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

It thus clearly appears that under the Constitution as amended in 1912, in the absence of an abuse of discretion, the granting of a motion for new trial is not an appealable order.

The Constitution as amended November 7, 1944, effective January 1, 1945, now provides:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the court of appeals within the district, * * *. All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed; provided, that all cases, actions, or proceedings pending before or in any board, commission, officer, tribunal, or court on the first day of January, 1945, shall be heard, tried, and reviewed in the same manner and by the same procedure as is now authorized by law.”

It is contended that since the legislature may now by law provide the jurisdiction of the Court that the statutes now in force, §12223-2 GC, defining a final order, and §12223-27 GC, providing for appeal on questions of law of a judgment or final order, and §12223-3 GC, making every final order reviewable, as later provided, somehow make the order here reviewable as a final order.

It has been pointed out hereinbefore that §12223-2 GC, as amended, effective September 30, 1947, does not apply in this case, and that the law under the statute in its earlier form was fixed in Hoffman, et al. v. Knollman, et al., 135 Oh St, 170, supra.

In Youngstown M. Ry. Co. v. Youngstown, 147 Oh St, 221, it is stated in the syllabus:

“1. Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Court of Appeals.
“2. Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

The Court has not overlooked the query which occurs as tb' the effect of the amended statutory definition of a new trial, §11575 GC, and the changed character of the motion as being addressed to the vacation of a judgment as set forth in §11578 GC. This Court has expressed its views on that query in McAtee v. Western & Southern Life Ins. Co., 82 Oh Ap, 131, to which reference is hereby made.

Nevertheless, the object of the motion remains the same, viz., to secure a retrial free from prejudicial error, and the fact that a pro forma judgment, tentatively entered, is set aside is incidental to the object of the motion, and, on its being granted, the order does not in effect determine the action and prevent the judgment, since, on retrial, the same result, for ought that is known, may obtain.

Attention is also directed to the language of §12223-2 GC, in effect at the time of the adoption of the 1944 Amendment of Article IV, Section 6 of the Ohio Constitution, and representing the conception of the bench and bar at that time as to the definition of a final order, to-wit: — An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment. This Court adheres to the view taken by it in Ryan v. Kroger G. & B. Co., 56 Oh Ap, 469, wherein it is stated in syllabus 1:—

“A judgment or final order from which an appeal may be taken to the Court of Appeals is one that divests some right in such a manner as to place it beyond the power of the court making it to place the parties in their original position. after the expiration of the term at which it is made.”

From an examination of the record, this Court finds no abuse of discretion on the part of the trial court in granting a new trial.

The appeal is, therefore, dismissed.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in. syllabus, opinion. & judgment.


author: Per CURIAM.

text:
    SMITH v. DULDNER.
    United States Court of Appeals Sixth Circuit.
    No. 10825.
    Decided July 5, 1949.
    E. F. Woodle, Cleveland, for appellant.
    Ed Dupree, Hugo V. Prucha, William A. Moran, Washington, D. C., Paul Marshall, Sanford S. Sims, Cleveland, for appellee.
    Before SIMONS, McALLISTER and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

Appellant operates a rooming house containing approximately twenty rental units. On November 3, 1947, acting under the Housing and Rent Act of 1947, 50 U. S. C. A. Appendix, §1881 et seq., the Area Rent Director gave appellant notice that he proposed to reduce the maximum rents for the rooming house units, and appellant filed objection to such action. Thereafter, the Area Rent Director issued an order reducing the rents of the units in question to what he considered were the maximum rents for comparable housing’accommodations. Appellant then filed a petition in the district court, praying that the Area Rent Director be enjoined from enforcing the order reducing rents. The petition was denied by the district court on the ground, among others, that a proceeding in equity for an injunction could not be maintained when the party seeking the injunction had an adequate remedy at law; that under Rent Procedural Regulation No. 1, issued by the Housing Expediter, appellant was entitled to review of and appeal from the order of the Area Rent Director; and that at the time the petition for injunction was filed, such remedy at law must be presumed to be adequate.

Proceedings in equity for an injunction can not be maintained where the complaining party has a plain, adequate, and complete remedy at law, and, generally, where an administrative remedy is provided by statute, it is such an adequate legal remedy as bars injunctive relief. The Housing and Rent Act of 1947 provides that the Housing Expediter shall, by regulation or order, make such adjustment in maximum rents as may be necessary to correct inequities, and that he may issue such orders as he deems necessary to carry out the policy of rent control enunciated by Congress in the Act. Furthermore, in Rent Procedural Regulation No. 1, an orderly procedure is prescribed for the Rent Control authority in making the various kinds of determination in connection with the establishment of maximum rents. For a landlord aggrieved by a determination there is provided the right of administrative appeal from the Rent Director to the Regional Rent Administrator and from him, to the Housing Expediter. Appellant never attempted to avail herself of these administrative remedies. She argues that the procedure provided under the Act and the regulations adopted thereunder do not satisfy the requirements of due process of law, and are invalid and unconstitutional, in that under the Act and the regulations, two essential requirements of due process are lacking, namely, the right to compel the attendance of witnesses and the production of documents, and the right to cross examine witnesses.

The rule, however, as to the exhaustion of administrative remedies applies just as forcibly when, as here, the contention is made that the regulations, in not providing for the right to compel attendance of witnesses, and the right of cross examination, are invalid and unconstitutional. Appellant’s claim that the order of the Area Rent Director is concerned with her constitutional rights and deprives her of due process of law, does not .relieve her of the necessity of exhausting the administrative remedies which are afforded to her under the regulations of the Expediter and the Housing and Rent Act, of 1947. See Bourjois v. Chapman, 301 U. S. 183, 185, 57 S. C. 691, 81 L. Ed. 1027; Independent Warehouse v. Scheele, 331 U. S. 70, 67 S. Ct. 1062, 91 L. Ed. 1346; Gates v. Woods, 4 Cir., 169 F. 2d 440; Koster v. Turchi, 3 Cir., 173 F. 2d 605. In the absence of any proceedings before the Expediter, there is no reason to conclude that he would fail in his performance of any duty imposed on him by the Constitution and laws of the United States; nor can it be assumed that if petitioner had .applied to the Expediter, she would not have secured all the relief to which she was entitled. Yakus v. United States, 321 U. S. 414, 64 S. Ct, 660, 88 L. Ed. 834, 28 O. O. 220. Courts will not usually anticipate a question of constitutional law in advance of the necessity of deciding it. Liverpool, N. Y. & P. S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 58 S. Ct. 352, 28 L. Ed. 899; Gundling v. Chicago, 177 U. S. 183, 20 S. Ct. 633, 44 L. Ed. 725.

Where a party has not resorted to the procedure prescribed by Congress in rent control laws, he can excuse his failure to do so, and can show a denial of constitutional right, only by showing that that procedure is incapable of affording him due process of law; and in the absence of any application to the Administrator, it can not be assumed that he will deny due process to any applicant. Moreover, the Emergency Court of Appeals, and the Supreme Court upon certiorari, have full power to correct any denial of due process of other procedural error that will occur in a particular case. Yakus v. United States, supra. As to other questions of due process in matters of federal emergency rent and price control, see Bowles v. Wilingham, 321 U. S. 503, 64 S. Ct. 641, 88 L. Ed. 892.

Appellant refers to the language of the Supreme Court in the Yakus case [321 U. S. 414, 64 S. Ct. 672, 28 O. O. 220], to the effect that “Only if we could say in advance of resort to the statutory procedure that it is incapable of affording due process to petitioners could we conclude that they have shown any legal excuse for their failure to resort to it or that their constitutional rights have been or will be infringed.” Appellant concludes this court is obligated to find, from a consideration of the law and the procedural regulations, that the law and the regulation are incapable of affording due process to petitioner. We find no merit in this contention. The regulation, in carrying out the objectives of the Act, is designed for the purpose of affording appellant a plain, adequate, and complete remedy at law for the rights she relies upon. Until she has availed herself of these administrative remedies and been deprived of rights guaranteed her under the constitution, it can not be said she has been denied due process. Since appellant did not exhaust her administrative remedies, her petition for an injunction was properly denied, and her complaint dismissed. Determination of other questions raised in the arguments is unnecessary to decision.

The judgment of the district court is, accordingly, affirmed.


author: By DOYLE, J.

text:
    In Re Estate of BROOKS, Deceased.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21431.
    Decided December 5, 1949.
    R. E. McMonagle, Cleveland, for plaintiff-appellee.
    Bernsteen &' Bernsteen, Jos. S. Kreinberg, Cleveland, for defendant-appellant.
    (GUERNSEY, PJ, MIDDLETON, J of 3rd District; DOYLE, J, of 9th District sitting by designating in 8th District.)
   OPINION

By DOYLE, J.

Curtis D. Brooks, Administrator of the estate of Curtis F. Brooks, deceased, charged one Florence Bartell, by proceedings in the Probate Court of Cuyahoga County, with having concealed, embezzled or conveyed away moneys, goods, chattels, things in action or effects belonging to the estate of said Curtis F. Brooks, deceased. Pursuant to trial, the eomplainee, Florence Bartell was adjudged guilty “of the complaint against her as to specific property, to-wit, note to Curtis F. Brooks from Palley-Pierce Inc.” and she was ordered to return the .said note to the administrator of the estate. Following the •overruling of a motion for new trial, appeal on questions of law was perfected to this court from the judgment rendered.

The action was bro'ught under the provisions of §10506-67 GC which is in the following terms:

“Upon complaint made to the Probate Court or Common Pleas Court of any county by a fiduciary, creditor, devisee-, legatee, heir or other person interested in the trust estate, ■or by the creditor of any devisee, legatee, heir or other person interested in the trust estate, against the fiduciary or any other person suspected of having concealed embezzled or conveyed away or of being or having been in the possession of any moneys, goods, chattels, things in action or effects of such estate, said court shall cite the person so suspected forthwith to appear before it to be examined, on oath, touching the matter of the complaint. The Probate Court shall also have power to initiate proceedings on its own motion.”

Under the provisions of §10506-73 GC.

“the court shall have * * * authority to hear and determine questions of title relating to such assets”

and

“in its discretion may order the return of the specific thing or things concealed or embezzled * * *.”

While we do not deny the right of the Probate Court to hear evidence and determine the question of .title to property in an action properly brought under the statute quoted above and under proper circumstances to order a return of a specific thing, we find no evidence in the case before us to justify the court in finding that the complainee “concealed, embezzled or conveyed away” a promissory note, the right to the possession of which is here claimed by the administrator. In fact the evidence shows that the person charged, at all times openly and notoriously admitted possession of the instrument under a claim of right and in fact produced it in court at the time of the trial.

If, under the language of the statute, the complaint had charged the complainee with “being or having been in the possession of” the promissory note the title to which is claimed by the administrator, and an order had been made against her on that ground, then a different question would be here presented. See, In re Guardianship of Sanderson, State ex rel Ellsworth Guardian, appellant, v. Perry, appellee, 64 Oh Ap 177.

Judgment reversed and final judgment for appellant. Exc.

GUERNSEY, PJ, MIDDLETON, J, concur.