author: By STEWART, Circuit Judge.

text:
    UNION PIPE & MACHINERY, Ltd., Appellant, v. LURIA STEEL & TRADING CORPORATION, Appellee. LURIA STEEL & TRADING CORPORATION, Cross-Appellant, v. UNION PIPE & MACHINERY, Ltd., Cross-Appellee.
    United States Court of Appeals, Sixth Circuit.
    Nos. 12297, 12298.
    Decided September 20, 1955.

      Robert M. Hammond, Youngstown, Maurice F. Hanning, Cleveland, for Luria Steel & Trading Corp.
    Harold K. Bell, James L. Pedler, Jr., William M. Nelson, Jr., Spieth, Spring & Bell, Cleveland; Rudenko & Gross, Montreal, Canada, for Union Pipe & Machinery, Ltd.
    Before SIMONS, Chief Judge, MARTIN and STEWART, Circuit Judges.
   OPINION

By STEWART, Circuit Judge.

Union Pipe & Machinery, Ltd. (hereinafter called Union), a Canadian corporation, brought this action in the district court against Luria Steel & Trading Corporation (hereinafter called Luria), an Ohio corporation, for damages growing out of Union’s purchase from Luria of a quantity of steel tubes. The complaint was based upon a claimed breach of an express warranty that the material sold was seamless tubing. Luria filed a counterclaim for breach of contract. From the district court’s judgment awarding Union a partial recovery, both parties have appealed.

In 1947 when this controversy arose Luria was a dealer in scrap steel and Union a dealer in new and used pipe and tubing. In May of that year one of Union’s buying agents, a Miss Pins, having heard that Luria had some war surplus steel tubes for sale and having ascertained that one of Union’s customers was in the market for seamless steel tubing, telephoned Luria’s office in Cleveland. In this conversation Luria’s agent, a Mr. Schachtel, confirmed the fact that Luria did have approximately five hundred tons of tubes for sale, but he told Miss Pins that, the material having been originally made for Bailey bridges for the Army, the tubes had attachments at each end. Schachtel said the material was for sale at $50 a ton. Miss Pins told Schachtel that before she could decide on the purchase she would have to inspect the material to determine how much waste or scrap there was on the ends of the tubes.

Accordingly, Miss Pins went to Cambridge, Ohio, where the material was stored, and there met by arrangement a representative of Luria who took her to the storage yard. The tubes were piled in bundles, containing from five to nine tubes apiece. Each bundle was framed with a wooden form on each end. Immediately in front of the stacked bundles there were two broken bundles of fourteen tubes, and the Luria representative assisted her in measuring the dimensions of the attachments on their ends. At her request he also removed the paint from a part of one of the tubes. She was in the storage yard not more than three-quarters of an hour.

The evidence was clear that Miss Pins was interested in buying only seamless tubing. However, while some of the material in the storage yard at Cambridge was seamless tubing, a great deal of it was butt weld pipe and a small quantity of it was lap weld pipe, both of substantially lower value than seamless tubing. The evidence showed that butt weld pipe is rather difficult to distinguish from seamless tubing, but that an experienced observer can readily distinguish lap weld pipe. The Luria representative testified that he knew that the material at the storage yard in Cambridge was not all seamless tubing, but both he and Miss Pins testified that the question of whether or not the material was all seamless tubing was not discussed by them. Whether because of a careless inspection, or because the fourteen tubes actually inspected were in fact all seamless, Miss Pins did not realize that all the material at the storage yard was not seamless tubing.

The next day Miss Pins went to Luria’s Cleveland office, where she talked with Schachtel. She advised him that she thought the attachments on the ends of the tubes would present no problem. She also testified that she told Schachtel that the material had to be seamless because it was going to a customer for redrawing purposes, and that Schachtel assured her that the material was all seamless tubing. Schachtel repeated that the price for the tubing would be $50 a ton, and stated that Luria would require that a $25,250 deposit accompany the purchase order if Union decided to buy the material.

Miss Pins then returned to Canada, and, after arranging to sell the tubing to Union’s customer at $55 a ton, sent a telegram to Schachtel stating: “Cannot Get Through By Phone. Am Buying Tubes. Will Call Tomorrow Morning.” Miss Pins did not call the following morning, but four days later sent another telegram: “Mailing Cheque and Purchase Order, Air Mail, Special Delivery, Monday Morning.” On the following Monday Union sent Luria its purchase order for the tubes, accompanied by its check for $25,250. The tubes were described in the purchase order as follows: “4" OD Seamless Steel Tubing 14" wall, 8'7" in length, including attachments, as seen and accepted by our Miss Pins.” Before acknowledging the purchase order, Schachtel made certain language revisions as to weight and price formulations and also added the War Assets Administration’s coded description of the tubes. These modifications clarified but did not in any way vary the terms of the order. Schachtel then signed and returned the order to Union.

About a month later the first nine freight cars of the material arrived in Welland, Ontario, where they were inspected by a representative of Union’s customer to whom they had been consigned. It was immediately apparent to him that the tubing was not all seamless, but largely butt weld and lap weld, and Union was promptly notified of that fact. Accordingly, that same day, Union’s president telephoned Luria and sent Luria a letter stating:

“Further to our telephone conversation of even date, we wish to advise you that the 4" tube you shipped us is not in accordance with our Order No. 1226, namely ‘seamless,’ which you signed and acknowledged. Our Miss Pins’ function was purely to examine the fabrication and condition of these tubes, which she did. The Mill in Welland, Ontario, has rejected this material as it is not seamless. We are therefore holding these cars in bond for your instructions, and any and all freight and demurrage will be charged to your account. Please guide yourself accordingly.”

Two days later Luria sent Union the following telegram: “Material Shipped Is Exactly As Inspected And Accepted By Your Agent We Are Holding Balance Of Material Pending Your Determination.” Subsequently Miss Pins and Schachtel had several telephone conversations. Miss Pins testified that in these conversations it was finally agreed that Union would take and pay for at the contract price all the seamless tubing contained in the nine-car shipment, that Union would endeavor, as Luria’s bailee, to arrange for the sale of the butt weld and lap weld pipe at the highest available price, but would assume no other obligation with respect to it, that Luria would take responsibility for stopping the remainder of the shipment in transit, and that Union would be relieved from any obligation with respect thereto.

After the last of these telephone conversations, Luria sent Union a telegram reading in part: “Confirming Our Telephone Conversation Today * * * You Are To Handle The Nine Cars delivered We Are To Handle The Seven Cars In Transit * * * The Equities Are To Be Worked Out And Determined When The Material Is Disposed Of.” The same day Luria stopped the remaining seven freight cars of the material in transit at Buffalo, New York, and arranged for its sale in that city at a gross price of $44 per net ton, Luria paying all demurrage, switching, and reconsignment charges.

That same evening Union sent a telegram to Luria, as follows: “Must Have Confirmation Immediately That The Nine Cars Of Tubing At Welland Can Be Unloaded And Segregated As To Seamless Lapweld and Buttweld Contract Price To Stand For Seamless Price on Buttweld And Lapweld To Be Arranged Please Wire Confirmation Immediately Cars On Demurrage.” Not having received a reply to this telegram, Union sent Luria another telegram the following day as follows: “We Have Decided In The Best Interests Of All Concerned To Ship The Nine Cars Now In Welland Back To You And To Absorb Part Of The Freight On Same Which We Will Adjust Please Let Us Have Your Shipping Instructions No Later Than Monday Noon Letter Following.” On the following Monday Luria sent Union a telegram reading in part: “* * * Our Wire 27th Confirmed Agreement You Are To Handle The Nine Cars Delivered Welland Stop Handle Them In Your Own Way We Will Handle Balance * * * And Work Out Equities Based Upon Original Contracts.”

Thereafter Union sent Luria letter stating that:

“When we originally sent you our wire advising you that we thought it best to ship the nine cars in Welland back to you, we were of the opinion then, as now, that it would be the best and most reasonable way out of our difficulties. However, since you insist that we unload and segregate the material we are doing so. The Seamless will be segregated and weighed, and paid you according to our contract. The Butt-weld and Lapweld will be adjusted, however, at a much lower price.”

Union then succeeded in selling the butt weld and lap weld pipe at $40 a ton and so notified Luria. Thereafter, a statement of the segregation and sale of the nine carloads in question was communicated to Luria. In this accounting, Union charged Luria with all freight, duty and demurrage costs of the lap weld and butt weld pipe, and credited Luria with the amount of seamless tubing in the shipment at the contract price and with the amount of the lap weld and butt weld tubing at $40 a ton. This resulted in a claim by Union for the return of over $15,000 of its $25,250 deposit. Luria did not return any part of the deposit, nor did it further communicate with Union.

This litigation ensued, in which Union demanded not only the return of a portion of its deposit as above computed, but also damages for loss of profits. In its counterclaim Luria averred that it had fully performed or tendered performance of its contract of sale by shipping the specific goods seen and accepted by Miss Pins, and sought damages for Union’s alleged breach of its contract to purchase the material at $50 per ton.

In a lengthy opinion, later designated as findings of fact and conclusions of law, the district court concluded that there was no warranty that the material sold was seamless tubing. Schachtel had died prior to the trial, and the court did not credit Miss Pins’ testimony that Schachtel had made an oral express warranty. The court further concluded that the phrase “seamless tubing” in the purchase order did not constitute a written warranty, because the contract of sale had been made and the goods accepted prior to the execution of the purchase order, and because the -language “as seen and accepted by our Miss Pins” “effectively withdraws any implication of warranty from the descriptive designation.” The court concluded that the contract of sale was complete when Miss Pins sent the telegram stating, “Am buying tubes,” and that the goods had previously been accepted by Union. However, the court further concluded that at the time of the contract the parties shared the mistaken belief that the material was in fact seamless tubing, and that after this mutual mistake of fact was discovered, the parties, instead of rescinding the contract as they had a right to do, entered into a new agreement. The district judge did not credit Miss Pins’ testimony as to the terms of this new agreement worked out in the telephone conversations with Schachtel, but, relying upon his conclusion that there had been no warranty, and upon his interpretation of the correspondence between the parties, decided that the parties had agreed that Luria should be placed in the position it would have occupied had it sold the mixed tubing at its fair market value f. o. b. Cambridge, Ohio. Accordingly, the court found that as to all of the material shipped to Welland, Union was entitled to an adjustment of the contract price downwardly to the fair market value of mixed tubing, but that Union was obligated to pay the freight, duty, and demurrage on that shipment. As to the material shipped as far as Buffalo, the court found that Union was under no further obligation with respect to the material itself, it having been sold in Buffalo for its fair market value as mixed tubing, but that Union was obligated to pay the freight and demurrage costs of that shipment. The court accordingly entered judgment in favor of Union in the amount of $7,087.44 with interest.

On this appeal the parties are agreed that the case is governed by the law of Ohio. That state has enacted the uniform sales act. Secs. 1315.01 to 1315.76 R. C.

The statute defines an express warranty as “Any affirmation of fact or any promise by the seller relating to the goods * * * if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon.” Sec. 1315.13 R. C. If the testimony of Miss Pins be accepted, it is clear that Schachtel in his conversation with her made an express oral warranty that the material was seamless tubing. However, the district court did not credit her testimony on this phase of the case. Although her testimony remained largely unrebutted, Schachtel having died prior to the trial, we cannot say that the district court’s finding of no oral warranty was clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, 28 U. S. C. A.; Quock Ting v. United States (1891), 140 U. S., 417, 11 S. Ct., 733, 35 L. Ed., 501.

The question, however, of whether or not the words in the purchase order amounted to a written warranty is one of law. If the district court was correct in the conclusion that the purchase was completed when Miss Pins sent the “Am buying tubes” telegram, the court was also correct in concluding that the words “seamless tubing” in the purchase order did not amount to a warranty. If Union had already bought the tubes before the formal purchase order was sent, clearly the purchase was not made in reliance upon anything said in the order.

We cannot, however, accept the district court’s conclusion that the purchase contract was completed upon the sending of the telegram. While the price for the material was apparently agreed upon during the conversation between Schachtel and Miss Pins in Cleveland, both Miss Pins and a witness for Luria testified that Schachtel stated in the conversation that Luria would require a deposit if the purchase was to be made. Since the required deposit was not sent at the time of the telegram, there was then no acceptance of any offer. See Restatement of the Law of Contracts, §59. Nor did Union’s sale of the material to its customer on that day constitute acceptance of any offer of Luria’s This was simply a short sale, in no way a manifestation of assent which created a contract with Luria.

We think rather the correct analysis to be that what Miss Pins ascertained in Ohio was that Luria had a quantity of steel tubes for sale at $50 a ton f. o. b. Cambridge, and that Union’s offer for the tubes had to be accompanied by a $25,250 deposit. Her telegram was merely an expression of the intent of her company to make such an offer. That offer was made with the sending of the purchase order and accompanying deposit, and was accepted by Schachtel on behalf of Luria. We come therefore to the question of whether or not the words “seamless tubing” in the purchase order constituted an express warranty.

As stated by Williston, “The law * * * is now convincingly settled that descriptive statements do constitute a warranty, whether the seller makes them or whether the buyer in ordering goods makes them and the seller furnishes goods in response to such order.” See 1 Williston on Sales, §205, and cases collected in footnote 17. This general rule was recognized by the district court. However, in addition to finding that the purchase had been completed before the written purchase order was sent, the district court also relied on the exception to the general rule stated in the same section of Williston on Sales: “Doubtless a description of goods by the seller which taken by itself would amount to a warranty may be so qualified by other language as to be deprived of the effect that it would have if it stood alone.”

We cannot agree with the district court the phrase “as seen and accepted by our Miss Pins” so qualified the unambiguous description of the material as “seamless tubing” as to deprive that description of its effect as a warranty.

Giving effect to all the language of the purchase order, we think the phrase “as seen and accepted by our Miss Pins” operated to identify as the subject of the sale the specific tubes with atttachments on their ends which Miss Pins had seen. On the other hand, the word “seamless” inserted in the purchase order by Union for its protection operated to state an attribute of quality concerning these specific goods. The two phrases served unrelated purposes and did not qualify each other. Thus viewed, the phrase “seamless tubing” retained its vitality as an express warranty.

Nor did the fact that Miss Pins actually had inspected the goods serve in any way to obliterate that warranty. As stated by the Ohio Court of Appeals in Schwartz v. Gross (1952), 93 Oh Ap 445, 452, 51 O. O. 190, 114 N. E. (2d), 103, 107, “ ‘The buyer may rely on the affirmation of the seller rather than his own inspection where * * * the inspection fails to reveal to him defects, either because of their being latent and concealed or because of the buyer’s inability to perceive and appreciate the defects from such inspection.’ ”

“There is no reason in the nature of things why a buyer should not rely both on the seller’s statements and on his own judgment. Observation shows that buyers constantly do this, and accordingly it is generally and rightly held that inspection by the buyer does not excuse the seller from liability for words which amount to an express warranty, if the difference between the true condition of the goods and the seller’s statements concerning them was not detected.” 1 Williston on Sales, §§2-8. See Refinery Equipment, Inc. v. Wickett Refining Co. (5 Cir., 1947), 158 F. (2d), 710; Schlottman v. Pressey (10 Cir., 1952), 195 F. (2d), 343.

When the nine-car shipment arrived in Welland, Ontario, and it was discovered the goods did not conform to the warranty, Union’s right to reject them was unaffected by the fact that title to the goods had passed to it when the cars had been loaded in Cambridge and that it had prepaid $25,250 of the purchase price. Lazarov v. Arnold Schwinn & Co. (6 Cir., 1950), 183 F. (2d), 673, certiorari denied 1951, 340 U. S., 932, 71 S. Ct., 494, 95 L. Ed., 672. Union could have accepted that part of the shipment which was seamless tubing and rejected the rest, or it could have rejected the whole shipment. Sec. 1315.45 R. C. On the other hand, Union was free to accept the goods and, providing it gave Luria notice of the breach of warranty within a reasonable time, could have held Luria liable for damages. Sec. 1315.50 R. C. If Union had chosen to reject the material, it would have been under no obligation to return it to Luria, but only to notify Luria of its refusal to accept. Sec. 1315.51 R. C. Lazarov v. Arnold Schwinn & Co., supra, 183 F. (2d), at page 676. Depending upon what course Union chose to pursue upon discovery that the material was not all seamless tubing, the law gave Union several alternative remedies against Luria, including the right to rescind the contract of sale, and if Luria had refused to accept an offer to return the tubes, to hold them as Luria’s bailee, with an immediate right to a return of its $25,250 deposit. Sec. 1315.70 R. C. Wilson & Co. v. M. Werk Co. (1922), 104 Oh St 507, 136 N. E., 202, 24 A. L. R„ 1438. If Union had chosen to rescind the contract of sale it would have been entitled to recover not only the price paid for the goods, but also its expenditures for freight, duty, and demurrage, in order to be restored to the status quo. See Brandtjen & Kluge, Inc. v. Shonka (1954), 2 Utah (2d), 223, 272 P. (2d), 155; J. L. Owens Co. v. O’Keeffe (1918), 141 Minn., 275, 170 N. W., 204, 174 N. W., 224; International Harvester Co. of America v. Olson (1932), 62 N. D., 256, 268, 243 N. W., 258, 263.

What Union actually did upon arrival of the shipment in Welland was promptly to notify Luria of the claimed breach of warranty and of Union’s consequent refusal to accept the goods. In its responsive telegram Luria promptly notified Union of its position that there had been no breach of warranty and of its intention to hold Union to its contract to purchase the goods which Miss Pins had inspected. The parties consistently held to these respective positions throughout the subsequent negotiations and have continued to do so throughout the present litigation. That the issue between them was from the outset a close one is well illustrated by the differing conclusions reached by the district court and ourselves upon the question of whether or not there was an express warranty.

Throughout the subsequent exchange of correspondence each party was making a conflicting claim of legal right, and it is against that background that the nature of their negotiations must be understood. Against that background the scope of the new agreement which they reached is reasonably clear. Each of the parties obviously realized that there was some risk in the position it was asserting. It was therefore to their mutual interest to avoid unnecessary demurrage or additional freight charges. Although Union at first insisted on rescission, which would have involved the return of the shipments to Cambridge, the terms of the agreement eventually reached are summarized in Luria’s final confirmatory telegram, “You Are To Handle The Nine Cars Delivered Welland Stop Handle Them In Your Own Way We Will Handle Balance * * * And Work Out Equities Based Upon Original Contracts.” Union agreed to waive any claim it might have had for loss of profits on the material which was not seamless and undertook the responsibility of having the cars unloaded and the material segregated. Beyond that, the parties simply agreed to dispose of the butt weld and lap weld tubes as expeditiously as possible, each taking responsibility for selling a part of them, and afterwards to settle upon the division of the burden of the loss, in the light of their relative rights and duties based upon the original purchase contract. That they were never able to agree on what their relative rights and duties were this litigation has made apparent.

If there was a breach of warranty, as we have concluded there was, the relative rights of the parties are clear. Union was entitled to be relieved from any burden of loss resulting from the breach. It follows that Luria must be charged all freight, duty and demurrage on both the Welland and Buffalo shipments, except those costs attributable to that part of the Welland shipment which was in fact seamless tubing, and thát Union is entitled to the return of its deposit, less the contract price of the seamless tubing it did receive and also less the amount received by it upon the sale of the butt weld and lap weld pipe in Welland.

The judgment of the district court is reversed and the case is remanded for proceedings consistent with the views expressed in this opinion.


source: Caselaw Access Project

author: By HUNSICKER, PJ.

license: Public Domain

text:
    STATE, Appellee, v. MEADOWS, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4710.
    Decided June 5, 1957.
    John S. Ballard, Pros. Atty., Anthony Kazlouskas, Asst. Pros. Atty., for appellees.
    E. Guy Hammond, for appellant.
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment, entered on a verdict of guilty, rendered against Billy Meadows, the appellant herein.

The grand jury of Summit County, Ohio, returned an indictment against Meadows containing six counts. One count was dismissed by the trial court, and the jury found Meadows not guilty of one count. The trial court combined the other counts to set out only two charges; one count charged Meadows with unlawfully and maliciously cutting and/or stabbing with intent to wound; and the other count charged Meadows with unlawfully and maliciously cutting and/or stabbing with intent to kill. The jury found Meadows, the defendant, guilty on these two counts.

Meadows, on October 3, 1956, cut and stabbed one Ann Brackmyer many times. Some of these wounds were flesh wounds, others were wounds which pierced the skin and flesh. All were administered with a paring knife.

After the entry of judgment, an appeal was prosecuted to this court, and many assignments of error have been set out by counsel for Meadows.

We have examined all of these assignments of error and find none prejudicial to the substantial rights of the appellant, Meadows, under the facts and circumstances herein as shown by the bill of exceptions.

We do wish to comment on one assignment of error: to wit, “* * * the jury found defendant guilty of two separate crimes on the proof of but one delictum.”

There was a finding of guilty of two offenses growing out of the acts which Meadows committed on October 3, 1956. Admittedly, Meadows cut and stabbed Mrs. Brackmyer numerous times. Some of the cuttings were not serious, while others pierced her body. One wound, apparently the last (because the knife was in her body at the time Meadows fled from the scene of the crime), pierced her breast, but did not strike a vital organ. Meadows thus committed many acts, not just one.

It has been held in this state that such acts, as we have in the instant case, may give rise to a charge of two separate offenses. Thus, in Barber v. State, 39 Oh St 660, the Supreme Court, in interpreting a predecessor statute (§68.20 R. S.), which is strikingly similar to the present §2901.23 R. C., said that one charged with maliciously cutting with intent to kill could not be found guilty of maliciously cutting with intent to wound. They are not of inferior degree, but of the same degree and may be punished with equal severity.

In the case of State v. Hreno, 162 Oh St 192, at p. 197, the court said:

“In Barber v. State, 39 Oh St 660, the defendant was indicted for maliciously cutting with intent to kill. That indictment was based on §6820 R. S., which provided that ‘whoever maliciously shoots, stabs, cuts or shoots at, another person, with intent to kill, wound or maim such person, shall be imprisoned in the penitentiary not more than twenty nor less than one year.’ The verdict was guilty of ‘maliciously cutting with intent to wound.’ It will be noted that the same statute made ‘cutting with intent to kill’ and ‘cutting with intent to wound’ two separate offenses with a different intent in each.” (Emphasis ours.)

In the instant case, we have several acts committed on the same person on a day certain; but even if it were one act, it might constitute several offenses. State v. Martin, 154 Oh St 539.

A case very similar to the case now before us may be found in State v. Benjamin, 132 N. E. 2d 761. In that case there was one act, and the. court there determined (at p. 763) that “The fact that a single act of the defendant * * * violated two of the three crimes defined by this section L§12416 GC] will not relieve him of prosecution upon each count.” See also: 22 C. J. S., Criminal Law, Sec. 285.

Meadows, in this case, committed several offenses, and he was properly indicted, tried and convicted of the oflense charged in each of the two counts of the indictment.

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

The judgment must therefore be affirmed.

Judgment affirmed.

DOYLE and STEVENS, JJ, concur.


author: By THE COURT:

text:
    STATE, ex rel. NOVACK, Plaintiff, v. ECKLE, Supt., et, Respondents.
    Ohio Appeals, Second District, Madison County.
    No. 207.
    Decided July 12, 1956.
    Cecile Shapiro, Columbus, for plaintiff.
    C. William O’Neill, Atty. Geni., John W. Shoemaker, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By THE COURT:

This is an original action in this Court wherein the petitioner is seeking his release from imprisonment in the Ohio Penitentiary and/or London Prison Farm on a writ of habeas corpus for the following reasons which have been well epitomized by counsel for the respondents:

CU There was no waiver of jury trial.

(21 There were not three judges to try the cause or pronounce sentence as provided for in §13442-5 GC.

(31 The term of sentence on the first count of the indictment is too indefinite and not according to law.

(41 Two sentences were imposed for but a single act.

(51 He has not been given a hearing for parole on the sentence on the second count — which was the only lawful sentence pronounced upon him.

(6) His constitutional rights have been infringed in the ways set forth in the above sections of this paragraph.

We understand that subsequent to the service of process upon the Superintendent of the London Prison Farm the petitioner was transferred to the Ohio Penitentiary and by agreement of counsel, Warden Alvis has been made a party defendant and filed a return in which he states that he has the . prisoner in his custody in the Ohio Penitentiary pursuant to a certain mittimus issued by the Court of Common Pleas of Fayette County, Ohio.

The record reveals that the petitioner was indicted on two counts: (11 Kidnapping; (2) Armed robbery, to wit:

“The jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present that NICHOLAS NOVACK, on the 23d day of October, 1946, at the County of Fayette aforesaid did unlawfully, wilfully, maliciously and forcibly did take and carry away one Dominic Guliano for the purpose of extorting from him the said Dominic Guliano, money, goods or chattels of the value of $1700 with the intent then and there and thereby to extort from the said Dominic Guliano the said money, goods or chattels as aforesaid.

“SECOND COUNT: The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, in the name and by the authority of the State of Ohio, do find and present that Nicholas Novack on the 23rd day of October, 1946, at the County of Fayette aforesaid did in and upon the boyd [sic.] of one Dominic Guliano, unlawfully and forcibly, and while armed with a dangerous weapon, to wit, a revolver, did make an assault and then and there did steal, take and carry away of the value of $1700 the personal property of the said Dominic Guliano, from the person against the will of the said Dominic Guliano, unlawfully, forcibly, by violence and by putting in fear the said Nicholas Novack, did steal, take and carry away, with intent then and there the personal property aforesaid unlawfully to steal, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

The judgment entry recites that the plea of not guilty was retracted and that a plea of guilty was entered to both counts. The following sentence was thereupon pronounced:

“It is, therefore, considered, adjudged and decreed by the court that the defendant, Nicholas Novack, under the first count in said indictment, be imprisoned in the Penitentiary of the State and kept at hard labor without any solitary confinement for a period of not less than twenty years;

“And that it is, therefore, considered, adjudged and decreed by the court that the said defendant, Nicholas Novack, under the second count in said indictment be imprisoned in the Penitentiary of the State and kept at hard labor without any solitary confinement for a period of not less than ten nor more than twenty-five years;

“It is further ordered by the court that the sentence in both counts run concurrently; and that the defendant pay the costs of the prosecution in said action for which execution is awarded.”

It appears that no written waiver of a jury trial was signed by the petitioner and for this reason it is urged that the Court was without jurisdiction to pronounce sentence. This conclusion is not in accordance with the case of State, ex rel. Scott v. Alvis, 156 Oh St 387. Here the Court said at page 391:

“In the absence of a statute to the contrary, where accused enters a plea of guilty or of nolo contendere the court has the power and duty to pronounce judgment or sentence as though a verdict of guilty had been found against him, and with the same effect. A judgment so rendered is not violative of accused’s constitutional right of trial by jury.”

See also State, ex rel. Evans v. Eckle, 163 Oh St 122.

It is next urged that the petitioner was charged with a capital offense and that upon a plea of guilty being entered it was necessary that the degree of the same be determined by a court consisting of three judges as provided in §13442-5 GC (§2945.06 R. C.). The indictmént was returned under §12427 GC (§2901.27 R. C.) which imposes the death penalty upon a conviction for kidnaping, subject, however, to the following exception:

,<* * * if the person so abducted or kidnaped has been liberated unharmed prior to the commencement of the trial, the said person so convicted shall be imprisoned in the penitentiary for not less than twenty years.”

The question presented here does not become vital for the reason that is is obvious that the court gave the petitioner every benefit that he could have received if a jury or three member court had been permitted to pass upon the question. There was no factual issue for determination by such a court which would sit in lieu of a jury. When all of the pertinent facts were admitted, the question became one of law for the determination of the Court. The petitioner was therefore deprived of none of his constitutional rights or lawful privileges.

We find no merit in any of the other claims advanced by the relator; hence the relief prayed for will be denied.

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


author: By THE COURT.

text:
    SHEARS, d. b. a. EARL SHEARS, Contractor, Plaintiff-Appellant, v. VonTULGANBURG, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5486.
    Decided March 5, 1957.
    Phillip V. Stout, Columbus, for plaintiff-appellant.
    Russell E. Lamm, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the defendant-appellee on the cross-petition for the sum of $1124.50 and costs of suit. The action was one on an account wherein the plaintiff was seeking to recover for labor and material in the remodeling of a certain house owned by the defendant.

To this petition the defendant filed an answer, which was a general denial, and a cross-petition for damages for the reason that the work was performed in such a careless, unskillful and negligent manner that she was compelled to have part of the work done over and which resulted in certain damage to her property.

It was the plaintiff’s theory of the case that he was an employee of the defendant engaged to furnish labor and materials for the work under the control and supervision of the defendant, and he testified to this effect. The defendant, on the other hand, asserted that the plaintiff was an independent contractor who represented that he had had 35 years experience in this type of construction. She testified that he was instructed only as to what work was to be done but not as to the manner in which it was to be performed, that she relied entirely upon his skill and experience. There was, therefore, a direct conflict in the testimony which had to be resolved by the jury under proper instructions from the court. These we have carefully examined and find that the court did not err in defining these two relationships and pointing out the respects in which they differed.

The jury was then instructed that if the relationship was that of employer and employee, it must find in favor of the plaintiff on the cross-petition. From the verdict returned in favor of the defendant on the cross-petition it is apparent that the jury found that the plaintiff was an independent contractor and therefore liable to the defendant for any damages she may have suffered because of the negligent manner in which the work was performed. The bill of exceptions supports the verdict and we cannot say that it is against the manifest weight of the evidence.

The appellant further urges that the court committed prejudicial error in admitting into evidence certain photographs of various parts of the building some two years after the plaintiff’s employment had ceased and additional work had been done on the premises. The photographs were properly identified as correctly reflecting the conditions at the time they were made and there was evidence in the record as to the changes that had been effected. Their admission into evidence rested within the sound discretion of the trial court. Bailey v. Greeley, 52 Abs 469.

We find no abuse in the exercise of this discretion and therefore the photographs were properly admitted into evidence.

Finding no prejudicial error in the record, the judgment will be affirme'd.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By STEVENS, J.

text:
    SLAMEY, etc., In re: SLAMEY, Appellant, v. RIZZO, Guardian, etc., et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24353.
    Decided December 13, 1957.
    Cerrezin & Cerrezin, for appellant.
    A. H. Dudnik. for appellee, Joseph V. Rizzo, Guardian, etc.
    Allen N. Corlett, for appellee, Mark L. McCave.
    (HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By STEVENS, J.

This appeal on questions of law challenges the propriety of a judgment of the Probate Court of Cuyahoga County, wherein it found Joseph P. Slamey to be “an incompetent person by reason of mental disability within the meaning of the definition of §2111.01 (D) R. C., and is incapable of taking proper care of himself and his property * *

An application for letters of guardianship for Joseph P. Slamey was filed on August 7, 1957, by Elizabeth Krieg.

On August 30, 1957, Mark L. McCave filed a similar application, and on August 30, 1957, Rudolph Rizzo also filed an application for letters of guardianship for said Joseph P. Slamey.

All of said applications were consolidated for hearing, and on September 6, 1957, the Probate Court made an order finding said Slamey to be an incompetent person by reason of mental disability, and appointing Rudolph V. Rizzo to be guardian of the person and estate of said Joseph P. Slamey.

On September 11, 1957, Joseph P. Slamey filed a notice of appeal on questions of law and fact from the above order.

On November 7, 1957, the appeal on questions of law and fact was dismissed by the Court of Appeals, and the cause retained as an appeal on questions of law, and was so submitted to this court.

Five assignments of error are urged:

“1. The Probate Court erred prejudicially in appointing a guardian of the person and estate of Joseph P. Slamey when the unanimous medical evidence of three eminent psychiatrists was that he was competent to take care of himself and manage his property, and likewise the overwhelming testimony of lay witnesses was to the same effect.

“2. The Probate Court erred prejudicially in denying appellant his constitutional right to conduct and present his defense by his attorney when the court denied his attorney the right to examine him.

“3. The Court erred in substituting photostatic copies of exhibits for the originals, thereby precluding the appellant from having a handwriting expert examine them for the purpose of establishing whether the exhibits were forgeries.

“4. The Probate Court erred prejudicially in admitting, over objection, a multitude of hypothetical questions and answers based on legally inadmissible evidence, evidence not in the record, and evidence based on the opinions and assumptions of others.

“5. The judgment and order appointing a guardian are contrary to law, and against the weight of the evidence.”

This record discloses that Slamey, a man 76 years of age, had accumulated, through the operation of a dry cleaning business, together with other business activities, an estate of between a half and three-quarters of a million dollars.

While Slamey was confined in the hospital by illness in 1955, the applicant Mark L. McCave, who had long been his attorney, prepared, and purportedly had executed by Slamey, a will (Krieg Exhibit B), by the terms of which Slamey left one-half of his estate to McCave and one-half to Lee P. Wallace, neither of whom were related to Slamey.

No testimony of the alleged incapacity of Slamey was introduced by any of the applicants except McCave.

The overwhelming weight of the testimony, prior to cross-examination by counsel for McCave, was that Slamey was competent to care for himself and his property.

Upon cross-examination of the two experts appointed by the court, who were called early in the hearing and before the evidence which it was asserted by counsel for McCave would be produced, so as to furnish a factual basis for hypothetical questions, certain hypothetical questions were propounded to the experts, wherein they were required to assume as true the facts therein stated.

The court-appointed experts, upon examination by the court, expressed the opinion that, from their examination of Slamey, he was competent.

Upon cross-examination by counsel for McCave, in response to hypothetical questions, the experts testified that, if the facts they were required to assume as true were actually true, then those facts would cause them to modify their previously-expressed opinions that Slamey was competent, and to conclude that he was incompetent.

One of the facts, which the experts were required to assume as true, was that Slamey, on July 8, 1957, deeded a property on 118th Street in Cleveland to Martha Ann Semerano for a reported consideration on the conveyance of $12,500, the property being reasonably worth not less than $25,000.

The only evidence as to the value of that property was the testimony of McCave, who upon examination was shown, as a matter of law, to be completely unqualified to express an opinion as to the value thereof.

What has been said above applies also to the vacant lot on 118th Street, which was alleged to have been sold for $5,000, when it was worth $10,000.

We consider the testimony of McCave, as to the value of said properties, to be of no probative effect, because of lack of qualification to express an opinion.

There was, accordingly, no factual basis for the hypothetical question dealing with the sale price and value of the premises above mentioned, and the answer to the questions should not have been considered.

Another hypothetical question dealt with seven checks, totalling $11,040, allegedly made payable to Mr. Semerano and Heights Monumental Company, and allegedly signed by Slamey. The question required the expert to assume as genuine the signatures on all seven checks, which, with the exception of McCave’s Exhibit 7, were denied by Slamey.

The proof established only the genuineness of the signature on Exhibit 7. As to the other six check exhibits (McCave Exhibits 3, 4, 5, 6, 8 and 9), there was no proof as to the genuineness of the signatures thereon; and the answer to the hypothetical question should have been disregarded.

Still another hypothetical question asked of the experts required them to assume that Slamey collected rents from one of his apartments, went out to the car, and threw over a thousand dollars in cash upon the floor of the car.

From our reading of this record, there is nothing therein which furnishes a factual predicate for the asking of the hypothetical question above mentioned, and the answer thereto should have been disregarded.

There are other instances appearing in this record where the facts are absent, upon which hypothetical questions propounded to experts rested.

As to the foregoing hypothetical questions and answers, the answers given to the questions were incompetent where the questions were not based upon facts which the testimony tended to prove. Board of Foreign Missions, etc., v. Bevan, etc., 2 Oh Ap 182, paragraph 2 of syllabus (affirmed, Bevan v. Board of Foreign Missions, etc., 91 Oh St 395).

Omitting from consideration the incompetent answers of Doctors Grossman and Hunter, where the hypothetical questions propounded to them were not based on facts which the testimony tended to prove, we are relegated to their conclusions reached after their examination of Slamey, that he was competent.

Such conclusions, announced by all the experts, and by all lay witnesses except Tincher, the handwriting expert employed by McCave, who had seen Slamey on but three occasions, and McCave, an interested witness, compel the conclusion that the finding of the Probate Court, holding Slamey to be incompetent, was manifestly against the weight of the evidence.

As to assignment of error No. 2, it is our opinion that the Probate Court erred when it denied to counsel for Slamey, at a time when Slamey was presumed to be competent, the right to examine his client. However, in view of the fact that the prejudicial errors, hereinabove set forth, require a reversal of this judgment, we do not determine whether or not the denial to counsel of a right to examine his client under the circumstances here appearing was prejudicially erroneous.

We find- no prejudicial error, under the circumstances shown by this record, in substituting photostatic copies of exhibits for the originals.

For error prejudicial to appellant, as hereinabove set forth, and because the judgment is manifestly against the weight of the evidence, the judgment is reversed, and the cause remanded for further proceedings according to law.

Reversed and remanded.

HUNSICKER, PJ, DOYLE, J, concur.


author: By MERRICK, J.

text:
    KEST, Admr., v. STATE et.
    Probate Court, Cuyahoga County.
    No. 540848.
    Decided December 30, 1957.
    Marvin L. Kest, for plaintiff.
    John T. Corrigan, Margaret J. Spellaey, Ralph S. Loeher, Joseph H. Crowley, Louis V. Corsi, Lawrence O. Payne, Harry E. Bonaparte, for defendants.
   OPINION

By MERRICK, J.

This is an action for declaratory judgment to determine the manner in which this estate shall descend. This Court has determined from the evidence that the one claiming as distributee was the bastard child of decedent’s wife who had pre-deceased him. There are no next of kin found to be in existence. If claimant fails to establish himself as a distributee under the statute, then the estate will escheat to the State of Ohio.

Claimant’s mother bore him out of wedlock to an unknown father. Several years later she married the decedent in this case. After living with decedent for a number of years, she died. Subsequent to her death, decedent died leaving the estate in question.

The law of Ohio as to intestate succession is contained in §2105.06 It. C. Paragraph (I) reads as follows:—

“If there are no next of kin, to stepchildren or their lineal descendants, per stirpes;”

then follows paragraph (J) as follows:—

“If there are no stepchildren or their lineal descendants, escheat to the state”

This is a case of first impression in the State of Ohio, so far as reported decisions are available in the reports.

The State of Ohio contends that an illegitimate child cannot be considered as a stepchild under the statute and contends that the estate must escheat.

The determination of this question must revolve around the interpretation placed on §2105.17 R. C., which reads as folows:—

“Bastards shall be capable of inheriting or transmitting inheritance from and to the mother and from and to those from whom she may inherit or to whom she may transmit inheritance, as if born in lawful wedlock.”

At common law an illegitimate child is nullius filius and cannot inherit from anyone. This rule was early superseded by statute in Ohio giving the right to the illegitimate child to inherit from the mother. This Was the rule under the statute of 1831 (29 Ohio Laws, 254) and the amendment of 1853 (51 Ohio Laws, 502) and has been expanded so that now in Ohio an illegitimate child can inherit both from and through his mother, either directly or collaterally. (Sec. 2105.17 R. C. supra.) Blackwell v. Bowman, 150 Oh St 37. Lewis v. Eutsler, 4 Oh St 355.

Thus it may be seen that collaterals, as well as descendants of the mother, may inherit the estate of the bastard child. 7 O. Jur. 2nd 481. The right of the natural mother to inherit from the bastard has been recognized in Ohio for more than one hundred years. This because of the statute (§2105.17 R. C.) and case law on the subject, Upson v. Noble, 35 Oh St 655; Gibson v. McNeely, 11 Oh St 131.

If the bastard is entitled to take under the statute it can only be by virtue of a relationship of affinity. Affinity means relationship by marriage. State, ex rel. v. School, 151 P. 2d 168. A kinship by affinity arises through marriage and exists only between each spouse and the blood relatives of the other spouse. State v. Thomas, 174 S. W. 2d 337. A husband holds the same relationship to his wife’s relatives by affinity as she does, and she stands in the same relation to his relatives. Chase v. Jennings, 38 Me. 44; Davidson v. Whitehill, 89 A. 1081.

A stepfather is a relative by affinity and the relationship continues after the death of his wife, on whom the relationship depends. Brotherhood v. Hogan, 5 F. Supp. 598. The legislature intended that stepchildren shall inherit irrespective of the dissolution of the marriage by divorce. In re McGraff’s Estate, 38 O. O. 187. 17 O. Jur. (2nd) 506.

A child born out of wedlock to the mother is to be considered a stepchild of the husband whom she subsequently marries and who is not the father of the child. Jones v. Jones, 292 N. Y. S., 224; Lipham v. State, 53 S. E. 817; Lunceford v. Fegles, 239 N. W. 673; Larson v. Harris, 230 N. Y. App. Div. 281; Hernandez v. Woodmen, 80 S. W. (2nd) 346; Simpson v. State, 174 S. E. 329.

An interesting case is found in our own appellate district in the year 1942, under the citation of Porsberg v. Klein, 39 Abs 470. The syllabus reads as follows:—

“Sec. 10503-14 GC (now §2105.17 R. C.) removes the disabilities of illegitimates in inheriting from their mother and from any others from whom the mother could inherit and should be given a liberal construction.”

In the above case the inheritance was held to pass from a legitimate child of a pre-deceased mother to an illegitimate child of such mother born before her marriage to the father of the decedent.

Consolidating the reasoning herein, it is the opinion of this Court that the claimant is entitled to the estate in question, by virtue of the statute giving him the status of a child of his mother, who if alive would take the estate of the decedent who was a stepfather to the claimant.

A decree may be drawn accordingly, saving exceptions to all parties.


author: By DOYLE, J.:

text:
    SMITH, Plaintiff-Appellant, v. SMITH, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24213.
    Decided December 6, 1957.

      William A. Vidmar, for plaintiff-appellant.
    Richard H. Woods, for defendant-appellee.
    (HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.:

In this appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County, we are concerned primarily with the propriety of a ruling denying a motion for a lump-sum judgment for unpaid overdue installment payments for the support of a minor child pursuant to a court order in a divorce action; and, as incident thereto, what is the law or what should be the law applicable to securing such lump-sum judgment when the divorced wife has delayed for fourteen years after the last payment was due in bringing her suit.

The following facts are important. We state them chronologically:

December 15, 1936. Katherine E. Smith (appellant here) was granted a divorce from Earl O. Smith (appellee here), and in the entry the husband, Earl, was ordered to pay seven dollars a week for the support of a minor son until the son reached the age of eighteen years.

January 13, 1942. The minor child attained the age of eighteen years.

October 23, 1956. The following motion was filed in the divorce action of 1936 by the creditor-wife:

“Now comes the plaintiff and moves the court for judgment on the order of support granted in the above-entitled action for the reason that the said defendant failed to pay any sum whatsoever upon said order.”

October 24, 1956. A copy of the above motion was duly served on the former husband and father.

March 1, 1957. The motion for lump-sum judgment on order for support was overruled.

April 24, 1957. The motion for a new trial and for a rehearing was denied.

Upon hearing it was argued by counsel for the former husband that the court had no longer jurisdiction to entertain the motion because the child was over eighten years of age, and as a consequence the jurisdiction of the court had terminated. The rule of law known as “laches” was also argued. The factual question of payment was not before the court, and, for the purposes of this decision, we are justified in assuming that the former husband and father was in complete default.

The record does not reveal the basis for the ruling of the court in denying the motion, but it does show that the child was twelve years of age on January 13, 1936, which would have made him eighteen years old on January 13, 1942; and the motion for a lump-sum judgment was filed more than fourteen years later, on October 23, 1956.

In Roach v. Roach, 164 Oh St 587, at p. 590, the Supreme Court of' this state declared that;

“* * * an order to pay installments for * * * support of minor children, incorporated in a decree of divorce, is a ‘judgment’ for the amount of the installments which are accrued and due, within the definition of that term as contained in * * * §2323.01 R. C. Armstrong v. Armstrong, 117 Oh St 558, 160 N. E., 34; McPherson v. McPherson, 153 Oh St 82, 90, N. E. (2d), 675.”

Sec. 2323.01 R. C., to which reference is above made, in so far as pertinent, reads: “A judgment is the final determination of the rights of the parties in action.”

It follows, we believe, that execution may issue to enforce payment of each single installment as it falls due. However, as to a multiple of due and unpaid installments, under the execution statute in this state (§2329.09 R. C.), such unpaid and delinquent installments must be added together and reduced to a lump-sum judgment before execution may issue thereon. This pronouncement is reflected in the syllabus of Roach v. Roach, supra. It is:

“2. Where a court in a divorce action makes an order for the support of a minor child of the parties, payable in installments, over which order the court retains expressly or by implication continuing jurisdiction, such order must be reduced to a lump-sum judgment as to unpaid and delinquent installments before an execution may be lawfully levied thereunder.”

Therefore, under the facts of the instant case, it became necessary to total the installments in default and secure a single judgment for the entire amount before execution could be levied. This is what the motion attempted to accomplish.

In some jurisdictions, statutes relating to dormancy or limitations have been applied to alimony and child support judgment; however, in this state such statutes are deemed to be inapplicable.

For instance, in Lemert v. Lemert et al, 72 Oh St 364, 74 N. E. 194, the second paragraph of the syllabus observes:

“2. Such decree for alimony does not become dormant because of the failure to issue execution thereon for more than five years.”

And in DeCamp v. Beard, Exr., 94 Oh Ap 367, at p. 372, the court stated:

“In considering this question we must keep in mind the fact that judgments for support payable in installments have the same legal standing and effect as judgments for alimony payable in installments.

“Such judgments for support, therefore, come within the purview of the decision of the Supreme Court in the case of Lemert v. Lemert, 72 Oh St 364, 74 N. E., 194, 106 Am. St. Rep., 621, wherein it was held that a judgment of this character is not one subject to becoming dormant or subject to revivor under sections of the General Code relating to dormant judgments and the revivor thereof.”

From the above observations, it appears obvious that Ohio case law reflects the rule that a judgment in a divorce and support action for installment payments for the support of a minor child possesses such finality as to warrant an action upon it as to amounts or installments already due, and therefore not subject to change or modification (McPherson v. McPherson, 153 Oh St 82), and that such action upon such judgment is not subject to Ohio statutes relating to the revivor of judgments or to any statute of limitations.

We expressly disapprove of the following statement in 20 O. Jur. 2d, Equity, Sec. 89, at p. 184: “A divorced wife who after default by her husband in payments of support money as ordered makes no demand and takes no action for eleven years is guilty of laches.” (We recognize, however, that this statement reflects the holding in In re Shipley, 26 O. O. 217, 38 Abs 181.)

An action of this nature may be brought in an independent suit in the Court of Common Pleas; or it may be maintained by motion in the original suit after proper notice to the delinquent party, on the theory that the court retains, by implication, jurisdiction to reduce its installment orders for payment to a lump-sum judgment upon which execution may later issue.

The judgment under review will be reversed, and the cause remanded to the Court of Common Pleas for trial.

Reversed and remanded.

HUNSICKER, PJ, STEVENS, J, concur.


author: By MILLER, Presiding Judge:

text:
    GARDINER, a Minor, Plaintiff-Appellant, v. BEIRISE et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    Nos. 2390, 2392.
    Decided December 6, 1956.

      McLeran, Kelly & McLeran, Dayton, for plaintiffs-appellants.
    Hyers, Leyland, Patterson & Kruse, Dayton, for defendants-appellees.
   OPINION

By MILLER, Presiding Judge:

These are identical law appeals, each from a judgment of the Common Pleas Court ordering certain portions of the fifth amended petitions stricken from the files and entering final judgment, as the plaintiff did not desire to plead further.

The petition in case No. 2390 alleges that the plaintiff is a minor four years of age, and the action is brought by the father and next friend; that the defendants are the owners of the premises upon which the plaintiff was injured and on which “the children of the neighborhood frequently play.”

The petition further alleges:

“Plaintiff says that Defendants maintained on said premises, in the rear of their residence and being part of said open area, a trash pile where, on occasion, defendants burned their trash, and that defendants were burning trash at this location during the afternoon and evening of February 10, 1954.

“Plaintiff further says that the next morning, at about 10:00 a. m., February 11, 1954, he was playing around the above trash pile, that there was no smoke or flame emanating from the trash pile, but that ashes and embers ignited plaintiff’s clothing, resulting in 3rd degree burns to the right leg of plaintiff.

“Plaintiff says that the above trash pile, so arranged and so located, constituted a hidden danger; that defendants knew of the presence of said hidden danger and knew or should have known that plaintiff was playing around the trash pile, at the time and place aforementioned.

“Plaintiff says that the injury was the direct and proximate result of the defendants’ negligence in the following respects:

“1. In allowing and permitting said hidden danger to remain upon the premises without proper guard or attendant, knowing that the area was frequented by children in the neighborhood.

“2. In failing to warn this plaintiff of the hidden danger upon premises.

“4. In failing to extinguish all danger of fire before leaving the trash pile unattended.” (Emphasis ours.)

We have emphasized the allegations objected to and which were ordered stricken by the judgment of the court. We are of the opinion that pleading the burning of the trash on the previous day is evidentiary and properly stricken. The remaining allegations are all grounded upon the plaintiff’s conclusion that the smouldering ash pile was a “hidden danger.” The only facts attempted to be pleaded to warrant the conclusion allege that it was “so arranged and so located” as to constitute a “hidden danger.” This is too indefinite and uncertain to warrant the conclusion, and the same was properly ordered stricken. Facts should have been pleaded relating to the arrangement of the ash pile and its location from which the conclusion was justified. This was not done. The court therefore did not err in ordering these allegations stricken from the petition. Even if we should be incorrect in the foregoing conclusion, we are of the opinion that the petition does not state a good cause of action under the “hidden danger” theory for the reason that it contains no allegation that the alleged danger was intentional, wanton, willful or negligently created. Therefore, the sustaining of the motion could not have been prejudicial. Under a most favorable interpretation the plaintiff could be only a bare licensee. In Elliman v. Gombar, 86 Oh Ap 352, the court in stating the rule applicable to a bare licensee, at page 355 said:

“In so far as the latter class is concerned, Ohio, as well as many other states, charges the owner with the duty only of abstaining from active negligence, as distinguished from passive negligence; for it is assumed that the bare licensee, knowing that the owner has no interest in his visit, and, therefore, cannot be expected to have made special preparations for his coming, will be on the alert to discover for himself the true condition of the premises.

“It is the conclusion of the members of this court that the only duty owed the injured person in this case by the owners was to not intentionally, wilfully, wantonly, or, through active negligence, create pitfalls or hidden dangers, or cause such conditions to arise; that reasonable minds could conclude only that this duty was not violated by the property owners; and, that the trial court should, as a matter of law, have arrested the case from the jury and entered a judgment for the defendants, or failing that, should have entered judgment for the defendants non obstante veredicto.”

See also paragraph 3 and 4 of the syllabus; also, Moran v. Wehrung, 61 Abs 212; Scheibel v. Lipton, 156 Oh St 308; Signs v. Signs, 161 Oh St 241.

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

HORNBECK and WISEMAN, JJ, concur.


author: By McCRYSTAL, J.

text:
    HERSCH, Plaintiff, v. ANDERSON ACRES, INC., Defendant.
    Common Pleas Court, Erie County.
    No. 30475.
    Decided November 4, 1957.
    Charles S. Fox, Huron, for plaintiff.
    Flynn, Py & Kruse, Sandusky, for defendant.
   OPINION

By McCRYSTAL, J.

The plaintiff in her petition alleges that the defendant for many years was the owner and operator of a lakefront acreage and beach and that the defendant rented cottages, trailer and tent space to the public for vacationing, camping, picnicking, etc. Plaintiff further alleges that she rented trailer space during June 1955 and that unknown to her, growths of poison oak and ivy were being allowed by the defendant to exist on the premises and that as a result of such noxious weeds being allowed to exist by the defendant, the plaintiff sustained a severe case of infection with said poisoning about her body and head which resulted in her being incapacitated from her work and caused her to incur medical bills. Plaintiff claims that the defendant was negligent in not removing said poison weeds and careless in allowing them to exist and in not destroying them and that said negligence was the proximate cause of the plaintiff’s injuries.

The defendant filed an answer and denied the essential parts of the plaintiff’s petition relating to any negligence on its part in not removing or eradicating the poison ivy.

The case was called for trial and the defendant filed a motion for judgment on the pleadings. The defendant’s position is that the petition does not state a cause of action in that there was no duty on the defendant to remove the poison ivy or to warn the plaintiff of its existence on the premises.

The court and counsel have made a diligent search of the authorities and were unable to find any cases dealing with the liability of a landlord to his tenant arising out of the existence of poisonous or noxious weeds upon the leased premises. The general rule appears to be that a landlord is not responsible to the tenant for injuries to person or property caused by defects in the demised premises where the landlord has not made any warranty or contract as to the condition of the demised premises or as to the repair of defects. 32 Am. Jur. 526. See also Am. Law Institute, Restatement, Torts, Vol. 2, Sec. 355 and 356. This general rule appears to apply to cases of sickness due to unsanitary condition of the premises. LRA 1917A 994.

It is the opinion of this court that the owner and operator of a camp site or of a resort where cottages and trailer spaces are rented is under no common law duty to warn the tenant of the existence of poison ivy, poison oak or other noxious weeds on the premises and further he is under no duty to remove said weeds from the premises when they grow and exist there. The owner or operator of camping areas are not obligated to maintain their camp sites in the same manner as a municipal park system is maintained. The city dweller who chooses to spend his vacation in the great outdoors must in addition to accepting the fresh air and lake breezes assume the risks of the natural hazards of the outdoors such as flies, mosquitoes, snakes, poison ivy and other natural conditions not found in the urban communities.

Defendant’s motion for judgment on the pleadings is sustained. Exceptions saved to the plaintiff.