author: By PHILLIPS, J.

text:
    STATE, Plaintiff-Appellee, v. HECKATHORNE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 693.
    Decided December 13, 1951.

      J. L. MacDonald, Pros. Atty., Lisbon, for plaintiff-appellee.
    Donald E. Smith, East Liverpool, for defendant-appellant.
   OPINION

By PHILLIPS, J.

On April 20, 1950, a jury in the court of common pleas found defendant guilty as charged, jointly with John Martin Wasson, of armed robbery upon an indictment laid under §13432-1 GC; guilty of operating a motor vehicle without the owner’s consent on the first count of the indictment, and not guilty of stealing that automobile upon the second count of the same indictment laid under §12619 GC.

Those indictments read respectively as follows:—

“State of Ohio, Columbiana County, SS.
“Court of Common Pleas. Case No. 6276.
“Of the Term of January in the Year of our Lord, one thousand nine hundred and fifty.
“The Jurors of the Grand Jury of said county, on their oaths, in the name and by the authority of the State of Ohio, do find and present that John Martin Wasson and Gerald Heckathorne on the 17 day of September in the year of our Lord one thousand nine hundred and forty-nine, at the County of Columbiana aforesaid, being then and there armed with a 22 cal. automatic pistol and a tear gas pen unlawfully and by putting in fear robbed one Ruth McGill of Nineteen Dollars ($19.00) in money. Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

The second indictment reads as follows:—

“State of Ohio, Columbiana County, SS.
“Court of Common Pleas. Case No. 6285.
“Of the Term of January in the year of our Lord, one thousand nine hundred and fifty.
“The Jurors of the Grand Jury of said County, on their oaths, in the name and by the authority of the State of Ohio, do find and present that John Martin Wasson and Gerald Heckathorne on the 17 day of September in the year of our Lord one thousand nine hundred and forty-nine, at the County of Columbiana aforesaid, unlawfully stole from one Mike Turk a motor vehicle, to-wit: a 1949 Station Wagon, Buick, Model No. 59 automobile, of the value of Three Thousand Seven Hundred and no/100 Dollars.
“Second Count:—
“And the Jurors of the Grand Jury aforesaid, on their said oaths, in the name and by the authority of the State of Ohio, do further find and present that said John Martin Wasson and Gerald Heckathorne on the date aforesaid and at the County aforesaid, unlawfully drove and operated a motor vehicle, to-wit, a 1949 Station Wagon Buick, Model No. 59 automobile, being the property of Mike Turk and being of the -value of Three Thousand Seven Hundred and no/100 Dollars without the consent of the owner thereof. Contrary to the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”

By agreement of counsel both of such indictments were joined as separate counts of one indictment and tried together.

In his opening statement in that trial the state’s attorney said:—

“Also the court has instructed you that although there are two Indictments returned here, by agreement of counsel, the Indictments are both presented to you and this case is being tried as if the Armed Robbery Indictment were made a third count or as if it was all one Indictment, and the various offenses are separate counts in the Indictment, that is, Stealing a Motor Vehicle, Driving the Same Without the Owners Consent and Armed Robbery.”

Defendant filed a general motion for a new trial. On May 15, 1950, the trial judge caused the following entry to be spread upon the docket of the court of common pleas:—

“This day this cause coming on to be heard on the motion of the defendant, Gerald Heckathorne, for a new trial. The defendant, Gerald Heckathorne, appeared in open court together with his counsel; also appeared the Prosecuting Attorney on behalf of the State of Ohio.
“The matter was argued by counsel for the defendant and by the Prosecuting Attorney on behalf of the State of Ohio; •and upon consideration, the defendant, Gerald Heckathorne’s motion for a new trial in the Armed Robbery count is sustained and the verdict of the Jury is set aside and a new trial is ordered. Exceptions to the State.
“The motion of the defendant, Gerald Heckathorne, for a new trial in the count of operating a motor vehicle without the owner’s consent is overruled. Exceptions to the defendant.
“And this cause is continued.”

Upon retrial on the charge of armed robbery a jury found defendant guilty on June 23, 1950, of armed robbery upon the following indictment laid under §12432-1 GC:—

“Indictment for robbery.
“The State of Ohio, Columbiana County, SS.
“Court of Common Pleas. Case No. 6276.
“Of the Term of January in the year of our Lord, one thous- and nine hundred and fifty.
.“The Jurors of the Grand Jury of said County, on their oaths, in the name and by the authority of the State of Ohio, do find and present that John Martin Wasson and Gerald Heckathorne on the 17th day of September in the year of our. Lord one thousand nine hundred and forty-nine, at- the County of Columbiana aforesaid, being then and there armed with a 22 caliber automatic pistol and a tear gas pen unlawfully and by putting in fear robbed one Ruth McGill, d. b. a. Truckers Inn of Nineteen Dollars ($19.00) in money. Contrary to the statute in such case made and provided and against the peace and dignity of the State of Ohio.”

The trial judge entered judgment of conviction upon the verdict of the jury and sentenced defendant “to be imprisoned in the Ohio State Penitentiary at Columbus, Ohio, for a term of not less than ten nor more than twenty-five years, said sentence to begin at the expiration of his sentence for operating a motor vehicle without the owner’s consent, heretofore pronounced by this court, in case No. 6285. Judgment against the defendant for costs.”

Defendant appealed from that judgment on questions of law, and by assignments of error contends:—

“1. The court erred by not granting the motion for a directed verdict of not guilty at the end of the case in the first trial of said case and particularly erred by not granting the same at the end of the entire case.
“2. The court erred in bringing the jury back for further instructions and more particularly the manner in which he did comment concerning the evidence, in both the first and second trial when the same had not been requested by the jury or anyone else.
“3. The court further erred in refusing defendant’s plea of former jeopardy, and in not permitting the defendant a trial on this plea in accordance with §13444-5 GC.
“4. The court further erred, as a matter of law, in the additional instructions that were given to the jury in both the first and second trial.
“5. For other errors apparent in the records to which the defendant objected.”

The amended bill of particulars filed by the state’s attorney on June 12, 1950, in accordance with defendant’s request, stated, among other things:—

“That the defendants, John Martin Wasson and Gerald Heckathorne, on the 17th day of September, 1949, at or about the hour of 6:00 o’clock, A. M., being masked to conceal their identity, and one of said defendants being armed with a 22 caliber automatic pistol, the other defendant being armed with a tear gas gun (fountain pen type), unlawfully and by putting in fear, robbed one Ruth McGill, d. b. a. Truckers Inn of $19.00 in money.”

The amended bill of particulars stated further, among other things, that Ruth McGill, named in the indictment, “was put in fear by the said John Martin Wasson and Gerald Heckathorne, through and by virtue of the action of John Martin Wasson and Gerald Heckathorne, in pointing, exhibiting and brandishing the 22 caliber automatic pistol and the tear gas gun,” (shaped like a fountain pen), “in a manner which threatened personal harm and violence to her,” about six o’clock on the morning of September 17, 1949, when the evidence discloses two men, wearing masks entered the Truckers Inn, situated on Eighth -and Main Streets in Wellsville, Columbiana County, Ohio, owned and operated by her as sole proprietor, and announced “this is a stick up,” and ordered those in the Truckers Inn at the time not to move.

There is evidence that when the masked men announced “this is a stick up” a customer in the Truckers Inn offered resistance, whereupon the tear gas gun was discharged, and that customer was incapacitated temporarily; that a waitress in the Truckers Inn, who witnessed such encounter and who had access to the cash register and acted as cashier, notified Ruth McGill, who was then dosing in a chair in the back room, of such robbery; that Ruth McGill’s husband was washing dishes in an adjoining room; that meanwhile the masked men had taken $19.00 in currency from the cash register in the Truckers Inn and escaped.

Further there is evidence that a station wagon automobile owned by Turk Motor Sales, Inc., had been parked by an executive of that corporation in East Liverpool on the evening of September 16th, and its disappearance had not been discovered until the morning of the 17th; that shortly after such armed robbery that wrecked station wagon automobile was found about a mile east of the Truckers Inn; that defendant Heckathorne was lying unconscious by the side of that automobile with a 22 caliber automatic pistol and two pieces of black cloth shaped like masks lying beside him; that upon arrival at the hospital a search of defendant Heckathorne’s person revealed, among other things, a tear gas gun, shaped like a fountain pen, $19.00 in currency and a quantity of 22 and 38 caliber tear gas shells.

Subsequently a search of defendant Heckathorne’s home revealed two pieces of black cloth, which appeared identical to the material from which such masks were made; that a laboratory examination of that cloth revealed that the mask pieces could have come from the same pieces of cloth as those found in defendant’s home; that the cut edges of one of the pieces of cloth found in defendant’s home matched perfectly with one of the cut edges of one of the cloth masks.

On retrial defendant denied that he was one of the masked .men who participated in the armed robbery of Truckers Inn. He testified that he was kidnapped by three masked men, who forced him to exchange clothes with one of them, to remain in the station wagon, to which reference has been made, by another of them, while presumably two of the three committed the armed robbery; that later the same evening he was forced to dress in his own clothing, ordered into the station wagon, and struck upon the head with a gun, after which he remembered nothing until he regained consciousness in a hospital in East Liverpool.

In arguing his first assignment of error defendant contends that in the first trial the state did not prove that Ruth McGill, the proprietor of Truckers Inn, was in the presence of the armed robbers when the armed robbery was committed, and accordingly was not put in fear by the armed robbers; that' the armed robbery was not established, and that therefore defendant’s motion for acquittal should have been sustained, or the “trial judge should have charged the jury respective to lesser crimes which may have been incorporated in the more serious offense, to-wit: petit larceny.”

By brief the state’s counsel said:—

“As a matter of fact, Ruth Magill was in the presence of the armed robbers and was put in fear, exactly as stated in the Bill of Particulars, as is shown in the record of the second trial of this case. (Record No. 2, Page 88). Although it is true that the evidence failed to disclose this on the first trial of the case, due to the fact that Ruth Magill did not appear as a witness and her deposition was not taken or offered by the State, in evidence.”

In the interest of accuracy in presenting defendant’s contention urged in his second assignment of error that the trial judge “erred in bringing the jury back for rurther instructions and more particularly the manner in which he did comment concerning the evidence, in both the first and second trial when the same had not been requested by the jury or anyone else,” we quote verbatim from the brief of counsel, as follows:—

“For the second trial the jury retired at 10 o’clock and without a request from the jury or counsel, the court did recall the jury to the jury box at 3:30 P. M. where they reported they could not agree. Whereupon the court recharged the jury by reviewing the evidence as submitted on behalf of the plaintiff and defendant. During the course of said charge the court did review certain items of evidence as being uncontradicted (pp. 458-459, Record No. 2) whereas in truth said evidence was contradicted either in fact or by inference. In particular the court did state that it was uncontradicted that Ruth Magill, the alleged victim, was in the presence of the robbers and that she was afraid. Yet her presence in the restaurant proper was unseen and unnoted by any other of the State’s witnesses and in particular they had testified that Mrs. Magill was not present at the time said robbers were in the restaurant. Only her testimony placed her in the restaurant. Hence the court did present to the jury a false picture wherein they could reach no other conclusion other than the fact that Mrs. Magill had been a victim as advocated bv the State.
“The court’s statement was such as to indicate that the jury could not disregard the testimony of the State’s witness, simply because the defendant did not produce evidence to dispute it. Since the defendant’s plea was to the effect that he was not present in the room then he could not know what took place so as to contradict the state’s testimony. The jury still had the right to disregard any or all the testimony of the state’s witnesses.”

In returning the jury to the jury room for further deliberations the trial judge said:—

“Now, Ladies and Gentlemen, you have the duty of determining whether a witness is telling the truth or whether he isn’t. If Mr. Heckathorne is telling the truth then, of course, he is not guilty. If he wasn’t telling the truth, you, of course, have the testimony, which I explained to you has not been contradicted by other testimony.
“As I explained to you in my charge, in determining what degree of credibility is to be attached to the testimony of the various witnesses you may observe and take into consideration the appearance and demeanor of the witnesses upon the stand, their manner of testifying, their candor, their intelligence, their knowledge of the things concerning which they testify, the correctness of their memory, their opportunity for observation, the reasonableness and probability of their story, their interest, if any, in the outcome of the suit, and their temper and feeling or bias, if any appeared.
“In other words, Ladies and Gentlemen, there is no question but that two armed, masked men came into the Truckers Inn; that before they came there was some money in the cash register; that after they came the bills had disappeared and the change was left. The question is was Mr. Heckathorne one of those men or was he not? I am going to send you back to the jury room Ladies and Gentlemen. I think you should consider this case further. You may retire to the jury room.”

Defendant contends that by the foregoing claimed erroneous statement the trial judge shifted the burden of proof from the state to the defendant, and placed upon the defendant the burden of authenticating his testimony by positive proof; and further contends that: —

“This, in effect, shifted the burden of proof from the State to the defendant, placing upon the jury the necessity of believing or disbelieving the defendant’s story in order to determine his guilt. Having been clothed with a presumption innocence, it would appear to be unique application of such a presumption to ask the defendant to authenticate his story by positive proof and to require the state only to present circumstantial evidence in order that they maintain the burden of proof beyond a reasonable doubt.
“The clear impact of the court’s statement on page 464 of the Record No. 2 was to say: ‘The State has proven all the elements of its case but, if the defendant can prove to your satisfaction that he was not one of the robbers, then he is innocent. If he can’t prove it then he is guilty. This was tantamount to depriving the jury of its right and duty to determine all the facts in the case, to determine if a crime was committed at all, and to relieve the State of so proving. It deprived the jury of all rights to disregard the testimony of any of the states witnesses, even the testimony of one ‘Dude’ Johnson, a confessed stool pigeon and character about town.’ (pp. 308, Record No. 2)
“Prom the entire charge as rendered by the court at this it was clearly evident the court believed the defendant guilty and further believed it was the duty of the jury to so And. By inference he did clearly state that the defendant had presented an implausible story and that the jury had no alternative but to render a verdict as requested by the prosecution.”

By his third assignment of error the defendant urges that “the court further erred in refusing defendant’s plea of former jeopardy, and in not permitting the defendant a trial on this plea in accordance with §13444-5 GC.”

With reference to that assignment of error the state’s attorney argues by brief:—

“However, it is conceded that the proof as adduced on the first trial (Record No. 1) is at variance with the statement contained in the Bill of Particulars as filed by the Prosecuting Attorney. Therein it was stated that “ * * the said Ruth Magill was put in fear * * *.’ It is admitted that the state did not prove on the first trial that Ruth Magill was put in fear, or was in the presence of the armed robbers. This was the reason the trial court was disposed to sustain the defendant’s motion for a new trial.”

Answering defendant’s argument advanced in behalf of his third assignment of error the state’s attorney said in his brief:—

“The necessary result of granting the defendant’s motion for a new trial is to set aside the whole verdict, and this, being at the defendant’s own instance, does not operate as either an acquittal or a bar to further prosecution of any part of the offense charged. See 12 O. Jur., at page 214, Section 184 and authorities quoted therein, especially State v. Behimer—20 Oh St 572 and §13449-4 GC.”

The trial judge refused to charge the jury after argument in writing and before charging the jury generally, as requested by defendant’s counsel, that:—

“First, if you find from all the evidence, that the defendant was one of the armed men in the restaurant known as Trucker’s Inn, and if you further find from all the evidence that Ruth McGill was not in the restaurant proper and not in the physical presence of the armed men, and if you find that one of these two armed men took some money from the cash register then the defendant would not be guilty of Armed Robbery, but would be guilty of Larceny. If you find him guilty of Larceny you shall then find the amount of money that was so taken from said cash register.”
“Second, if you find from all the evidence that the defendant was one of the armed men in the restaurant known as Trucker’s Inn, but find from all the evidence that Ruth McGill was not in the restaurant proper and not in the physical presence of the armed men then you shall find the defendant not guilty of robbery.”

In refusing to charge the jury the first request as submitted to him the trial judge said:—

“This matter was brought up at the close of the state’s evidence and again at the close of all the evidence on a motion to take the matter from the jury, but it is the court’s opinion that even if Ruth McGill was not in the room, if an employee was in the room and such employee had control of the cash register, that is, the right to use the cash register by putting money in it or making change from it and that this employee was frightened from the room by the robbers and then the robbers took money from the register that would be robbery. For that reason this charge will not be given, and the defendant may have his exception.”

In refusing to charge the jury the law stated in the second request as submitted to him the trial judge said:—

“That is practically the same principal as the first special request and will be refused for the same reason and the defendant may have his exception.”

Appellant’s counsel has failed to call our attention to “other errors apparent in the records to which the defendant objected,” as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

We have considered all of defendant’s assigned grounds of error upon which we have passed carefully, and conclude it is sufficient to say that as a result thereof we find no error prejudicial to defendant in any of the respects urged by him therein.

NICHOLS, PJ, GRIFFITH, J, concur in judgment.


source: Caselaw Access Project

author: By MILLER, CJ.

license: Public Domain

text:
    HAMILTON FOUNDRY & MACHINE CO., Appellant, v. INTERNATIONAL MOLDERS & FOUNDRY WORKERS UNION et, Appellees.
    United States Court of Appeals, Sixth Circuit.
    No. 11349.
    Decided December 11, 1951.

      Before SIMMONS, McALLISTER and MILLER, Circuit Judges.
   OPINION

By MILLER, CJ.

Appellant, The Hamilton Foundry and Machine Company, brought this action against the appellee labor organizations under the provisions of Section 301 of the Labor Management Relations Act of 1947, Title 29, U. S. Code, Section 185, for damages caused by an alleged breach of a no-strike provision in a contract between the appellant and the appellees. Following a jury trial and a verdict for $37,500, in favor of the appellant, the District Judge sustained motions of the appellees for judgment notwithstanding the verdict. This appeal followed the entry of such judgments.

Appellant operates a gray iron jobbing foundry at Hamilton, Ohio. The appellees, International Molders & Foundry Workers Union of North America (A. F. L.) and Local No. 68 International Molders & Foundry Workers Union of North America (A. F. L.) are labor organizations within the meaning of the Act. Certain employees of the appellant working in the molding, core making, and core assembly departments and in two miscellaneous job classifications were members of Local No. 68, the membership of which also included employees in other companies in Hamilton, Butler County, Ohio.

The complaint alleged that on or about March 26, 1949, the appellees negotiated a contract with the appellant with respect to wages, hours and other conditions of employment, effective March 28, 1949, and to continue in effect until March 27,1950; that Section VII of the contract provided — “A. During the life of this Agreement, the Union agrees that it will not cause or permit any of its members to cause or take part in any strikes, stoppage or slowing down of work, and the Company agrees that there shall be no lockouts”; and that on April 4, 1949, in violation of the no-strike agreement the appellees permitted their members employed by the appellant to take part in a strike at the appellant’s foundry in Hamilton, Ohio, which made it impossible for the appellant to operate its foundry, with a resulting loss to the appellant in the sum of $75,500 with additional damage in the amount of $3,000 for each working day that the strike continued thereafter.

Thereafter, following motions by appellees, the appellant filed a More Definite Statement of Claim which stated that the contract was negotiated orally between a committee representing the Local and the International Union and representatives of the Company, which was then reduced to writing and presented to members of the Union, following which the appellant was notified verbally by the appellees that the contract was approved, but that the appellees thereafter refused to sign the contract. This pleading stated — “The termination date of said contract was midnight March 26, 1950.” There was attached and made a part of the pleading a copy of the alleged unsigned contract, which was later introduced in evidence as Exhibit 3. Appellees denied the making of the contract with the appellant and also pleaded affirmatively, as one of several affirmative defenses, that no action could be brought upon the alleged contract under the Ohio Statute of Frauds (§8621 GO), in that the contract was not in writing and could not be performed within one year from the making thereof. After the start of the trial, the appellant filed an “Amended More Definite Statement of Claim” which stated that the terms of the contract were set forth partially in a written proposal presented by the Company to the representatives of the Unions, and partially in oral statements made by the Company to representatives of the Unions; that the full terms contained in the alleged contract were set forth in the attached exhibit with certain specified changes; that none of the provisions of the contract was conditional on the signing of a written agreement; and that said contract was entered into on March 26, 1949 effective March 28, 1949 and that its termination date was midnight March 26, 1950.

The evidence at the trial showed the following: The 1948 agreement between the Company and Local No. 68 was executed on February 24, 1948, effective March 1, 1948, and was to continue in effect until February 28, 1949 and for each succeeding year thereafter unless either party gave sixty days written notice previous to the expiration date. By letter of December 13, 1948, serving as the official 60-day notice in the matter, the Company was notified that it was the desire of Local No. 68 to open negotiations on changes in the agreement. The parties entered into collective bargaining negotiations in February 1949. Five meetings were held between the Company and a' committee representing Local No. 68. The real issue in dispute was the Company’s insistence that Local No. 68 accept its proposal that a so-called Industrial Engineering Method of computing th§ piece work wage rates of the employees engaged in production molding be put into effect in the foundry, which the employees refused to accept. Local No. 68 applied for a strike sanction from the International Union which was granted. At a meeting on March 3, the Company presented a draft of a proposed contract, which was introduced as Exhibit 19. This was not accepted by the employees. At a meeting on March 17, the Company modified the proposal by making an offer of one week’s retro-activity. This was not acceptable to the employees, although the Company was notified at the time that the parties were not Tar apart. At a meeting on Thursday, March 24, the same proposal was discussed with the modification of a change in the percentage for the core roll over machine operator, together with two weeks’ retroactivity instead of one. This was to be effective Monday, March 28. At the close of this meeting, the Union representatives advised the Company that they would present the amended proposal to a meeting of the members employed by the Company to be held on Friday night, March 25, and that a Union representative would notify the Company on Saturday morning, March 26, whether the proposal had been accepted or rejected.

The evidence about what occurred at the meeting on March 25, and what notification the Union representative gave to the Company in a telephone call on Saturday morning, March 26, is conflicting. McDaniel, a vice president of the Company, testified that McCune, a Union representative, advised him that the Company’s offer had been accepted. McCune testified that he told McDaniel that the employees voted not to put the strike sanction into effect, and that the employees would begin to work under the proposed plan on Monday, March 28, and that if it proved to be fair without a cut in wages, the agreement could be signed on Wednesday.

The Company immediately began correcting the piece work price tags in order that the workers would have them when they started to work on Monday morning. The men returned to work on Monday morning and started work under the new contract rates. The new rates proved unsatisfactory, in some instances resulting in a reduction in the daily pay. At the regular weekly meeting of Local No. 68 on Monday night, the committee reported to the Union the action taken at the meeting on Friday night. The Local approved of the plan of continuing at work for awhile instead of striking, and rejected the Company’s proposal. Negotiations were continued during the following week. On April 2, 1949, the employees voted to strike. The strike began Monday, April 4, 1949.

At the close of appellant’s case, the appellees moved for a directed verdict. The motions were overruled. At the close of all the evidence, the appellees renewed their motions for a directed verdict. The motions were again overruled, and the case was submitted to the jury following instructions by the Court. The jury returned a verdict against both appellees in the amount of $37,500. The appellees filed motions for judgment notwithstanding the verdict in accordance with their motions for a directed verdict and in the alternative also moved for a new trial without specification of any grounds therefor. The District Judge sustained the motions for judgment notwithstanding the verdict and entered judgments for the defendants. The judgments also stated that the motions for a new trial were well taken on the grounds assigned in the motions for a directed verdict, that the appellant had failed to sustain the burden of proof, and “that in the event of a reversal of the final judgment rendered herein * * * said verdict for the plaintiff is set aside and a new trial granted.”

In entering said judgments, the District Judge filed Findings of Fact and Conclusions of Law, in which he found that the action of the employees at the Friday night meeting at its best represented the action of appellant’s employees who were members of the Union and did not represent the official action of Local No. 68, a necessary party to the contract; that the correct version of what actually took place at the Friday night meeting was a vote “to not invoke the strike sanction”; that both parties fully intended that neither would be bound unless and until the agreement was signed, and since Local No. 68 did not sign the agreement, no valid contract was entered into between the parties.

Appellant complains of the action of the trial judge in making such Findings of Fact, in that Rule 52 of the Rules of Civil Procedure providing for such Findings does not authorize them when a case has been tried with a jury, and that in ruling on a motion for judgment notwithstanding the verdict the trial court is not permitted to weigh the evidence or find the facts. We agree with this contention, and accordingly do not apply to the Court’s Findings of Fact the established rule that they are to be accepted unless found to be clearly erroneous. They will be considered on this appeal as merely indicating to the Court the reasons of the trial judge for making the ruling herein complained of. In reviewing the ruling, we will apply the established rule that upon a motion of a defendant for a directed verdict the trial judge should overrule the motion unless, viewing the evidence in the light most favorable to the plaintiff, there would be no substantial evidence to support a jury verdict if returned for him. Hinton v. Dixie Ohio Express Co., 188 Fed. (2) 121, C. A. 6th; O’Donnell v. Geneva Metal Wheel Co., 183 Fed. (2) 733, 739, C. A. 6th; Tennant v. Peoria R. R., 321 U. S. 29; B & O. v. Postom, 177 Fed. (2) 53, C. A. D. C.

We also agree with appellant’s contention that a contract may be validily entered into even though the written instrument evidencing the terms of said contract has not been executed by the parties. Although the general rule is settled that an unsigned contract cannot be enforced by either of the parties, however completely it may express their mutual agreement, if it was also agreed that the contract should not be binding until signed-by both of them, it is also a recognized exception that if the party sought to be charged intended to close a contract prior to the formal signing of a written draft, and such written draft is viewed by the parties merely as a convenient record of their previous contract, he will be bound by the contract actually made though the signing of the written draft be omitted. American Bentonite Corp. v. Clark Equipment Co., 43 Fed. (2d) 392, affirmed 43 Fed. (2) 1023, C. A. 6th; Restatement, Contracts, Sec. 26. It is essentially a question of intention. The evidence was conflicting on this factual issue. The testimony of McDaniel and Rentschler to the effect that it was agreed that the contract was to be in effect upon oral notification that it had been accepted, and that the signing would follow later, was sufficient to take this issue to the jury. The trial court was not justified in making the finding that the parties fully intended that neither would be bound unless and until they signed the agreement.

We do not agree with appellees’ contention that the National Labor Relations Act as amended requires the collective bargaining agreement to be reduced to writing and signed in order to be valid. The Act does not so state. In H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514 and Cox v. Gatliff Coal Co., 59 Fed. Supp. 882, affirmed 152 Fed. (2) 52, C. A. 6th, it was stated that the Act contemplated that a collective bargaining agreement be in writing. Since those decisions, the Act has been amended by the Labor Management Relations Act of 1947, by which collective bargaining was defined as including “the execution of a written contract incorporating any agreement reached if requested by either party.” Section 158 (d), Title 29 U. S. Code. In our opinion, this contemplates valid oral agreements where neither party requests a written instrument. N. L. R. B. v. Scientific Nutrition Corp., 180 Fed. (2) 447, 449, C. A. 9th; United Shoe Workers v. Le Danne Footwear, 83 Fed. Supp. 714, D. C. Mass.

Nor do we agree with appellees’ contention that the District Court lacked jurisdiction because the alleged cause of action, not being based on diversity of citizenship, did not arise under any law of the United States. Article III, Sec. 2, U. S. Constitution. Treating the contract as one recognized by the Act, even though an oral one, the cause of action upon it arises out of a law of the United States. A. F. L. v. Western Union Telegraph Co., 179 Fed. (2) 535, 538, C. A. 6th. The “no-strike” clause in the agreement does not impair any constitutional right of the employees and does not defeat the jurisdiction of the National Labor Relations Board. Shirley-Herman Co. v. International Hod Carriers, Etc., 182 Fed. (2) 806, 809, C. A. 2nd.

We also agree with appellant’s contention that the trial judge erred in making the finding that the correct version of what actually took place at the Friday night meeting was to not invoke the strike sanction, in that there was substantial evidence to show that the employees voted to accept the Company’s proposal. Three witnesses, Bicknell, Sherman and Johnson, testified for the appellant that the Company’s proposal was voted on and accepted by the employees at this meeting. Other witnesses testified that there was much confusion, that “Everything blew up,” and that no such vote was taken. This presented a factual issue for submission to the jury, whose verdict in that respect should have been accepted.

However, if the District Judge was correct in his ruling that the action of the employees at the Friday night meeting at its best represented the action of appellant’s employees who were members of Local No. 68, and did not represent the official action of the Union, the judgment must be affirmed. We agree with the ruling. It is undisputed that the Friday night meeting was not a meeting of the Union, but was only a meeting of the employees of the appellant who were members of the Union; that the Union membership included employees of six or seven other plants in that area; that the chairman of the meeting was an employee of the Company rather than the President of Local No. 68; and that there was no consideration of the Company’s proposition by the entire Union membership until the regular weekly meeting of the Union on Monday night March 28th, at which time it was rejected. The written proposal names Local No. 68 as the other party to the contract. It is a fundamental rule of contracts that a contract, in order to be binding on a party thereto, must be accepted by such party. It seems clear that Local No. 68 did not, by any action of its own, accept the contract. We find no substantial evidence, considering the record as a whole, to sustain the contention that the committee of employees who negotiated with the Company, or the officers of the International assisting the committee, had any authority to bind Local No. 68 to such a contract prior to its approval by the Local itself, or represented to the Company that they had such authority. We recognize the logic of the proposition that Local No. 68 would in all probability accept the contract if approved by the employees of the Company, but the probability of such action does not dispense with its necessity. Appellant contends that the strike was put into effect by vote of the employees of the Company on April 2, without a meeting of the Local, and that the meeting on March 25th was equally as binding on the Union. The fact that the employees of the Company voted to strike and did so, does not mean they had authority from the Union to do so or that such action bound the Union. The argument may work more against the appellant than for it. If Local No. 68 did not call or authorize the strike, Local No. 68 is not liable for breach of the alleged contract. We think it is more consistent with legal principles, and in fact necessary to keep appellant in court, to consider the strike action as having been ratified by the Union’s silence or failure to repudiate it. Gold Mining Co. v. National Bank, 96 U. S. 640, 644; Leviten v. Bickley, Mandeville & Wimple, 35 Fed. (2) 825, C. A. 2nd. In the present case, Local No. 68 promptly rejected any “acceptance” of the contract by the Company’s employees. Nor do we consider it material that employees of the Company called for and cashed their pay checks for the work performed on Monday. They were entitled to pay for the work performed on that day at the rate in effect for that day, whether a contract for a longer period was in effect or not. Again, it was the action of individuals, not the action of the Union.

The District Judge did not rule upon the defense of the Ohio Statute of Frauds, although it was raised by the pleadings. It is strongly pressed by appellees on this appeal, and will be considered in that in our opinion it furnishes another ground for the affirmance of the judgment. In re Barium Realty Co., 154 Fed. (2) 562, 566, C. A. 6th. Although the contract and federal jurisdiction to enforce it arise out of a federal statute, the enforcement of the right must conform to the remedy prescribed by the law of the state where the action is brought. We agree with appellant that a state statute cannot change or diminish a substantive right created by a federal statute, as was the case in Hill v. Florida, 325 U. S. 538 and Shirley-Herman v. International Hod-Carriers Union, 182 Fed. (2) 806, and similar cases, but a state statute is applicable where it deals with the remedy rather than with the substantive right. Campbell v. Haverhill, 155 U. S. 610, 618; Chattanooga Foundry & Pipe Works v. Atlanta, 203 U. S. 390, 397; Cope v. Anderson, 331 U. S. 461, 463; Republic Pictures Corp. v. Happier, 151 Fed. (2) 543, C. A. 8th. The Ohio Statute of Frauds affects the remedy only. Heaton v. Eldridge, 56 Oh St 87; Ohlendiek v. Schuler, 30 Fed. (2) 5, C. A. 6th; Continental Collieries v. Shober, 130 Fed. (2) 631, 633-634. See also Hamilton v. Glassell, 57 Fed. (2) 1032, C. A. 5th, Straesser-Arnold Co. v. Franklin Sugar Refining Co., 8 Fed. 12) 601, C. A. 7th, cert. denied 270 U. S. 642.

Sec. 8621 GC provides that no action shall be brought “upon an agreement that is not to be performed within one year from the making thereof” unless it is in writing and signed by the party to be charged. Appellant’s pleadings and evidence provide much confusion about the length of time covered by the alleged contract involved in this case. The original complaint alleges that the contract was negotiated “on or about March 26, 1949 * * * to be in effect * * * until March 27, 1950.” Apparently realizing that this allegation might be vulnerable to the defense of the Statute of Frauds, it filed a More Definite Statement of Claim, which alleged that the contract was entered into on March 26, 1949, effective March 28, 1949, and terminated at midnight March 26, 1950. Such a contract would not be covered by the Statute of Frauds since the date of execution is not included in the computation. Restatement, Contracts, See 198 (d); State v. Elson, 77 Oh St, 489, 495-496; Nickerson v. Harvard College, 298 Mass. 484. It filed with this amendment Exhibit 3, alleging it to be a copy of the contract entered into. Exhibit 3, however, provided that the contract was to be effective March 28, 1949 and “continue in effect until March 27, 1950 and for each succeeding year thereafter,” subject to modification upon renewal. Appellant’s first witness testified that Exhibit 3 was the contract agreed upon. In addition to there being no evidence about a contract with a termination date of midnight March 26, 1950, the exhibit contradicted the allegations of the Amended Complaint and was controlling. Rule 10 (c), Rules of Civil Procedure; Simmons v. Peavy-Welsh Lumber Co., 113 Fed. (2) 812, C. A. 5th, cert. denied 311 U. S. 685; American Surety Co. v. Federal Reserve Bank, 29 Fed. Supp. 940, D. C. Mo.; Kessler v. Grasser, 300 Ky. 89. After the first witness, appellant’s evidence was to the effect that Exhibit 19, with certain oral modifications, was the written proposal submitted by it to the Union and agreed to on March 26th. This exhibit provided that it was effective March 14, 1949 and would “continue in effect until March 13, 1950 and for each succeeding year thereafter,” subject to modification upon renewal. Some contention is made that since the contract terminated by March 13, 1950, as stated in Exhibit 19, it was not covered by the statute. But obviously Exhibit 19 was not the agreement of the parties insofar as the beginning and termination dates were concerned, even assuming some agreement was made. It was a draft of a proposed agreement submitted to the Union on March 3rd, rejected by the Union at that time, resubmitted with some modification on March 17th and again rejected, and again used as a basis for negotiations at the meeting on March 24th without taking the trouble to change the dates contained therein, although both parties understood that they were outmoded and not applicable to the current negotiations. This is conclusively shown by the testimony, after appellant’s first witness, that Exhibit 3 was drafted after the meeting of March 25th and represented what the appellant thought was agreed to by use of Exhibit 19 with oral modifications. Accordingly, we rule as a matter of law that Exhibit 3 controls the termination date of the contract. Rules 10 (c) and 15 (b), Rules of Civil Procedure.

Appellant contends that the words “until March 27, 1950” as used in Exhibit 3 are words of exclusion with the result that the contract terminated at midnight March 26th. The general rule appears to be that the word “until” is usually a term of exclusion, but will be treated as a word of inclusion if such was the intention of the parties. Kendall v. Kingsley, 120 Mass. 94; Houghwout v. Boisaubin, 18 N. J. Eq. 315; Rogers v. Cherokee Iron & R. W. Co., 70 Ga., 717. In the present case, both the past history of annual agreements between the parties and the current negotiations show the clear intent of the parties to make collective bargaining agreements of a year’s duration, not for a day less than a year. The 1948 agreement, which ran until. February 28, 1949, provided that it was to continue in effect for each succeeding year thereafter, unless modified upon renewal. Both Exhibits 3 and 19 contain the words “and for each succeeding year thereafter.” We hold that the duration of the contract included March 27, 1950 and since, if made at all, it was made on March 26th, it was not to be performed within a year from the making thereof.

In view of the above rulings, it becomes unnecessary to review that portion of the judgments granting appellees a new trial in the event the judgments should be reversed.

So much of the judgments as sustains appellees’ motions for judgment notwithstanding the verdict and enters judgments for them is affirmed.


author: By DOYLE, J: NICHOLS, J,

text:
    BOWMAN, Plaintiff-Appellee, v. GOLDSMITH BROS. CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22298.
    Decided February 25, 1952.

      Sieman, Sieman & Sieman, Cleveland, for plaintiff-appellee.
    McConnell, Blackmore, Cory & Burke, Cleveland, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of 9th District: NICHOLS, J, of the 7th District sitting by designation.)
   OPINION

By DOYLE, J:

Hilda Bowman, a tenant, was injured by slipping and falling on ice-and-snow-covered steps of a stairway leading to her rented apartment on the second floor of the defendant’s apartment house. In her suit for damages against her landlord, based upon claimed tort liability, she recovered a verdict at the hands of a jury in the Court of Common Pleas of Cuyahoga County in the amount of $4,000. The appeal to this court stems from the judgment entered thereon. There are various grounds of error claimed, some of which will be here discussed.

The evidence shows the apartment house contained (1) a basement apartment in which the janitor lived, (2) a first-floor apartment in which a tenant, Mrs. Short, lived and (3) a second-floor apartment in which the plaintiff lived with her daughter. At the rear of the building, an outside stairway extended downward from the ground level, several steps to the rear entrance of the basement apartment; the stairway also extended upward, from the ground level platform, seven steps, to a platform serving the entrance to the first-floor apartment of Mrs. Short; from this platform the stairway continued upward to a platform or small porch which served the entrance to the second-floor apartment of the plaintiff, Mrs. Bowman. Here the stairway ended.

It thus appears that the stairway descending from the ground level served only the basement apartment; the stairway from the ground level to the first-floor platform served both of the tenants of the first and second floors; and the stairway upon which the accident occurred, from the first-floor platform to the second-floor platform, served only the second-floor apartment, in which the plaintiff lived.

As a majority of this court views the record, there was presented for determination, among other things, the question of whether the landlord, in its rental of the apartment to the plaintiff, reserved possession and control of the stairway leading from the first-floor landing to the second-floor landing. If it did, and had assumed the duty of keeping the stairway clean and free from ice and snow, then it was required to exercise ordinary care to render the stairway reasonably safe for use by the plaintiff. Oswald v. Jeraj, et al, 146 Oh St 676. If it did not have the right to possession and control of the stairway in question, then it had no legal duty to keep it free from ice or snow. And if there was no legal duty to keep it in a reasonably safe condition, then tort liability would not arise from a mere breach of contract, either express or implied, to keep the premises clean and safe. Cooper v. Roose, 151 Oh St 316.

It has long been the general rule and so recognized in this state, that, when the only relation between the parties is contractual, the liability of one to the other, in an action of tort, must arise out of some positive duty which the law imposes because of the relationship, or because of the negligent manner in which some act which the contract provides for is done; and the mere omission to perform a contract obligation is never a tort unless the omission is also the omission to perform a legal duty. In other words, an action of tort for negligence cannot be maintained unless the defendant’s conduct constituted the breach of a duty imposed by law, apart from it being a breach of an obligation created by agreement of the parties, either express or implied.

The rule here pronounced finds support in a host of cases. In Tuttle v. Gilbert Mfg. Co. 145 Mass. 169, 13 N. E. 465, it is stated that “there must be some active negligence or misfeasance to support a tort. There must be some breach of duty distinct from breach of contract.” This was the rule, we believe, which Judge Taft was establishing by citing this Massachusetts case in Cooper v. Roose, supra.

Returning now to the record, it was claimed by the plaintiff that “the defendant * * * maintained control of the * * * stairway, and of the part thereof on which plaintiff fell, by the fact that its janitor, housed in the basement of said apartment building, was given the duty by the defendant to keep the stairway free and clear of ice and snow and was provided by the defendant with a shovel, scraper, salt and other necessary equipment for accomplishing this result. Furthermore, said janitor, on behalf of the defendant, was given the further duty of removing garbage from the porches of the various tenants by the use of said common stairway, and other additional duties relating thereto.”

It appears that such services had been performed by the janitor, and that the stairway in question was used by various persons who had business and social dealings with the plaintiff.

The trial court, in submitting the case to the jury, apparently was not concerned with the question of whether the stairway upon which the accident happened was or was not a common stairway, as that term is used in law, or whether any control thereof was in the lessee. The court’s appraisement of the legal questions involved was summarized by its statement as follows:

“I am simply submitting to the jury whether or not the evidence shows that the landlord had the care of that stairway under the implied contract as indicated by the plaintiff’s evidence, and, if so, then they are to go to the matter of whether or not he [it] exercised ordinary care in the removal of the ice and snow.”

The court then submitted the case to the jury on the issues only of negligence, proximate cause and contributory negligence, without explaining the legal effect of the evidence bearing on the question of occupation and control of the stairway. The “implied contract” incorporated in the statement above, apparently referred to evidence indicating an implied contract to clean, repair and maintain the stairway in a safe condition.

As indicated in prior paragraphs of this opinion, a mere omission to perform a contract, whether express or implied, in and of itself cannot be made the predicate for an action in tort, unless the omission is also the omission of a legal duty. Therefore, assuming that the evidence gives rise to an implied contract to maintain this stairway free from dangerous ice and snow, where do we find the evidence indicating the legal duty of the landlord to do so, in addition to a possible contractual obligation which may be implied?

Proceeding to situations where the landlord retains control, there may be found the well-recognized rule that, where premises are let to several tenants who occupy different parts thereof, but who enjoy and use certain parts in common— such as walks, driveways, porches, entrances, halls and stairways — as a means of access to their respective tenancies, these approaches and passageways are generally presumed to be in the possession and control of the landlord, in the event that specific evidence shows nothing to the contrary. Under such circumstances, the landlord in effect invites the use of such passageways, etc., by the tenants, and such other persons whose relation to the tenants involves their use to obtain access to the demised rooms or apartments, and the landlord may be held liable for personal injury to a tenant proximately resulting from his failure to exercise ordinary care in keeping such parts of the property in proper repair and in a reasonably safe condition. Under circumstances of this nature, there arises a legal duty on the part of the landlord which would supply the necessary predicate for an action in tort growing out of the omission to perform an express or implied contract to keep the premises reasonably safe by the removal of ice and snow.

On the other hand, where passageways and stairways or substantial parts thereof lead only to rooms or apartments under demise to one tenant, and under the physical conditions extant could not be used as a means of ingress to any part of the premises not rented to such tenant, there is no presumption of possession or control by the landlord. The mere fact -that there may be a contract, either express or implied, in which there is a reservation exclusively for the purpose of repairing the stairway or passageway, or the doing of janitor work, such as transporting garbage, sweepings, elimination of ice and snow, and other things of a similar nature, does not render the lessor liable in tort to the lessee for injuries sustained from falling on ice-covered steps, on the theory of the possession and control being lodged in the landlord. There must be more than this to create the duty in the landlord. See: Ripple v. Mahoning National Bank, 143 Oh St 614.

As a majority of this court views the record, the part of the stairway leading only to the plaintiff’s apartment was in the control of the tenant. It had no purpose except to serve the plaintiff’s apartment; there is no evidence indicating a reservation of control in the landlord except the implied reservation for the specific purposes mentioned above —which, as stated, are not sufficient to create a duty over and beyond a possible implied contract to keep the premises safe from the hazards of ice and snow. This being our conclusion, an omission to perform a contract obligation, either express or implied, is never a tort, unless the omission is also the omission of a legal duty.

Finding no legal duty on the part of the landlord to remove the ice and snow from the stairway, we find that this case was wrongly submitted to the jury on the theory of an implied contract of control and an implied contract to keep the premises safe.

The judgment will be reversed and final judgment entered for the defendant.

HUNSICKER, PJ, concurs.

NICHOLS, J, dissents. (See dissenting opinion.)

NICHOLS, J,

(dissenting).

In this case much of the contention between counsel for the respective parties relates to whether the stairway upon which plaintiff fell and was injured constituted a “common stairway.” In my opinion it was a common stairway leading from the ground level to apartments on the first and second floors of the building, the stairway being one structure used in common by all tenants, as well as by the defendant landlord, acting by its employee.

The fact that the first floor tenants did not need the entire stairway for access to their apartments is immaterial since the second floor tenants could not possibly have reached their apartments except by the use of the entire stairway including that portion used by the first-floor tenants. As stated above, it was all one structure, so recognized by the landlord by the use made by it in assuming the burden of keeping the stairway free from ice and snow, as well as the use made by it in removing the garbage for all the tenants and in making repairs thereto.

However, this case was not submitted to the jury upon the issue of the stairway being a “common stairway.” The issue upon which the court submitted the case to the jury is definitely stated by the trial judge on pages 232 and 233 of the bill of exceptions as follows:

“I am not submitting to the jury whether or not this is a common stairway * * *. I am simply submitting to the jury whether or not the evidence shows that the landlord had the care of that stairway under the implied contract as indicated by the plaintiff’s evidence and, if so, then they are to go to the matter of whether or not he exercised ordinary care in the removal of the ice and snow.”

In furtherance of that statement of the trial judge, the court, on motion of the defendant, struck from the petition all allegations thereof relating to unlawful construction of the stairway and negligence as to repairs thereto, and in his charge to the jury the judge read the allegations of the petition other than the matter deleted therefrom, and read the allegations of the answer and of the reply, and thereupon stated:

“In other words, the petition, the answer and the reply which the court has just brought to your attention, make up the issues of the case.”

(Appellant in its assignment of error No. 4 claims that the court did not define the issues in the case, to which assignment of error further reference will be made hereinafter.)

By reference to such petition, as deleted, it is seen that the court submitted to the jury the question whether the plaintiff has established that the defendant retained possession and control of the stairway, and if so, whether the defendant exercised ordinary care in its duty to remove the ice and snow under the implied contract shown by the evidence, the court correctly stating in the charge the rules as to the preponderance of the evidence and proximate cause. The court also correctly charged on the issue of plaintiff’s contributory negligence, raised by the answer and denied by the reply, all such issues being decided by the jury in favor of plaintiff.

In my judgment the trial court did not err to the prejudice of defendant in so limiting the issues. Nor did the jury err in finding for the plaintiff upon the issues submitted to it. The question of the weight of the evidence is involved, but even if this court would unanimously agree that the verdict is against the weight of the evidence, only a reversal and not final judgment would follow. I do not agree that the verdict is against the manifest weight of the evidence. The defendant offered no evidence in this case (other than a photograph of the stairway and building) except by way of cross-examination of plaintiff’s witnesses. It is interesting to note that the trial judge, as shown on page 241 of the bill of exceptions, expressed his opinion in the absence of the jury as follows:

“The state of the evidence is such that there is an implied contract.”

It is manifest from the evidence in this case that as an incident to the contract of lease the landlord impliedly agreed with its tenant, for the consideration named in the lease, that it would keep the stairway free from ice and snow so as to make the same safe, for the evident and recognized purpose of lessening the danger of the tenant falling thereon. The landlord over the previous duration of the lease had recognized his obligation to his tenant in that respect, having consistently theretofore performed his duty in removing the ice and snow, providing its own employee the implements used for that purpose. Would anyone contend that the plaintiff, designated here as tenant, would not be entitled to such damages as would reasonably be contemplated by the parties if she had made a contract with a stranger to the landlord, by the terms of which contract the stranger, for a consideration, had agreed to keep the stairway free from ice and snow and had not used ordinary care to perform his contract and as a proximate result of such failure the plaintiff fell and suffered injuries to her person? Of course, any contributory negligence of the plaintiff in using the stairway with knowledge of its condition would be for the jury in determining the proximate cause of her injuries. Could it be said that her only right of recovery would be limited to the amount which she might have to pay to have the ice and snow removed, under the theory that her action is not in tort but solely upon contract? There is but one form of action in Ohio for relief under such circumstances, a civil action, and the damages for violation of contract are measured by what was reasonably contemplated by the parties as the natural consequence of a breach.

Why did the landlord in this case undertake to keep the stairway free from ice and snow? What was in the minds of both parties at the time this lease arrangement was entered into, as shown by the evidence in this record? This was not an action for failure to make repairs. Personal injury to the tenant as a result of the failure of the landlord to remove the ice and snow was not a remote consequence: the inherent nature of ice and snow is a matter of common knowledge, and especially is its dangerous propensities known when a person of the advanced age of plaintiff is subjected thereto.

That tort may arise out of the violation of a contract, either by reason of negligence in performance or in failure to perform when personal injury is reasonably contemplated as a natural result of such negligence or failure, is fundamental. See II Restatement of the Law of Torts, Sec. 357 (p. 967). My respect for the eminent authorities responsible for the Restatement gives me confidence in relying thereon. See also 163 A. L. R. 300, where it is stated in the Introductory to the Annotation on the subject of “Breach of Lessor’s Agreement to Repair as Ground of Liability for personal Injury to Tenant or One in Privity with Latter”:

“At the time the earlier annotations on the present subject were written there was clearly a majority and a minority view as to the liability of a landlord for personal injuries where there was a total failure to perform an agreement to repair the leased premises. The majority rule was that the landlord was not liable. However, there is now a pronounced trend toward the view that the landlord is liable for personal injuries under such circumstances and the American Law Institute’s Restatement of the Law of Torts accepts this view (See Sec. 357.) It now seems improper to say that it is the majority rule that the landlord is not liable for personal injuries, for it is doubtful whether a majority of the courts adhere unqualifiedly to this view.”

I cannot recognize any right of a landlord, as such, to a halo over his head which makes him immune to the consequences of his violation of contract where personal injuries result to one with whom he has directly contracted, as distinguished from-one not in privity, where personal injuries were reasonably contemplated by the parties as a natural result of such violation.

The cases most strongly relied on by appellant for its claim to reversal and final judgment in its favor, are: Ripple v. Mahoning National Bank, 143 Oh St 614, and Cooper v. Roose, 151 Oh St 316.

This case is clearly distinguishable from Ripple v. Bank, supra, where the plaintiff was injured in the private office of one of defendant’s tenants and not on the stairway of the building. The Mahoning County Court of Appeals, of which the writer was a member sitting in that case, found that although the landlord had agreed with its tenant to make repairs to such office, there was no privity of contract between plaintiff and the landlord, and based its decision, which was affirmed by the Supreme Court, on Burdick v. Cheadle, 26 Oh St 393, Marqua v. Martin, 109 Oh St 56 and Berkowitz v. Winston, 128 Oh St 611. The controlling factor in that case was the lack of privity of contract between plaintiff and the landlord; nothing else was necessary to the' decision of the case and the court believed it would be mere obiter dicta if we attempted to express an opinion as to the law applicable had the plaintiff been injured on the stairway.

The case most strongly relied on by appellant for final judgment in its favor is Cooper v. Roose, supra. In my opinion that case is clearly distinguished from this. That case was based upon a claimed contract to make repairs, the evidence disclosing that the landlord at no time had possession, occupation or control of the porch after the lease to the tenant. The element of occupation or control was held to be necessary to liability of the landlord for personal injuries resulting from the condition of the premises, and that holding, among others, distinguishes that case from this. In his opinion in the cited case at page 319, Judge Taft states:

“From the evidence in this case, it is clear that there was no occupation of this porch by the landlord after rental of the second and third floors to the plaintiff. The plaintiff’s testimony clearly showed that, from the time of the rental until after the accident, the landlord never appeared on the premises and never, either himself or through others, took any steps to occupy or take possession of the porch.”

And on page 321 of the opinion Judge Taft states:

“In the instant case there is, and on the evidence there can be, no claim that defendant was negligent in making repairs. The evidence discloses that he did nothing about make repairs."'

Nor were there any facts in that case which disclosed that the parties had in mind that the mere failure of the landlord to make repairs would subject him to liability for personal injuries. The plainest interpretation of the agreement was that the parties had in mind only the asthetic appearance of the respective portions of the building, the plaintiff to be responsible for the appearance of the inside and the landlord of the outside. Certainly it was not contemplated by the parties, that the tenant would be liable to the landlord for personal injuries which might result from the failure of the tenant to redecorate or repair the interior of the leased premises, and at most the evidence disclosed only mutual promises with reference to the asthetic appearance of the property.

On page 321 of his opinion, Judge Taft states that the reason for denial of recovery against the landlord of damages for breach of his contract to make repairs is that personal injuries are not a natural and probable consequence which ordinarily and reasonably could be anticipated from a breach of an agreement to make repairs. The corollary of that statement implies that where personal injuries are a natural and probable consequence which ordinarily and reasonably could be anticipated from the breach, liability attaches.

The stated rule and the operative facts clearly distinguish this case from Cooper v. Roose, supra. The supreme court of this state has repeatedly held that the syllabus of a decision of that court states the law of Ohio with reference to the facts upon which the syllabus is predicated, and that it must be interpreted with reference to those facts and the questions presented to and considered by the court. Williamson Heater Co. v. Radich, 128 Oh St 124; Maryland Cas. Co. v. Frederick Co., 142 Oh St 605, 609; Leube v. Prudential Ins. Co., 147 Oh St 450, 456; Midvale Coal Co. v. Cardox Corp., 152 Oh St 437, 445. As stated by the learned trial judge in Whitney v. American Shipbuilding Co. 23 O. Dec. 1 at page 9:

“The authority of a decision is found, not in the language of the opinion, nor of the syllabus, nor in the judgment pronounced, but in the doctrine of the case, the reason of the decision, the ratio decidendi. It is found in the proposition of law necessarily involved in the decision; and the proposition of law necessarily involved is one without which the case could not be decided as it was decided. The jurisdiction of the court is restricted to the decision of such proposition, and its decision is not a precedent for anything beyond this. State v. Baughman, 38 Oh St 455, 459.”

Thus it is seen that nothing in the language of the opinions or in the syllabi of - the cases relied upon by appellant was binding upon the trial court or upon this Court of Appeals, because of the distinguished character of the operative facts of this case and the law applicable thereto.

There being no claim by plaintiff of an express contract binding the defendant to remove the ice and snow from the stairway, it is apparent that the jury found from the evidence that an implied contract to keep the steps free from ice and snow arose from the conduct of the defendant, the use made by it of the stairway, the location and construction thereof, its availability for use for the benefit of all the tenants, and particularly that at all times previous to the injuries of plaintiff, defendant had retained control of the stairway for use by its agents and servants, to whom it had furnished the implements which were used by its employee for the removal of the ice and snow, and the jury was justified in finding that the parties reasonably contemplated that the landlord would be liable for personal injuries to plaintiff, by reason of defendant’s breach. Photographs of the building and stairway were in evidence, from which the jury could observe that there was not one stairway for the plaintiff and another for the other tenants of the building, but that the stairway was erected as a whole structure for the accommodation of all the tenants and the landlord.

There are but four assignments of error, the first three and a part of the fourth urging error in the refusal of the trial court to sustain motions for final judgment for defendant. Such assignments are not well taken.

The fourth assignment of error raises the question whether the trial court properly submitted the issues to the jury by reading the pleadings and telling the jury they make up the issues in the case. We do not recommend this method of stating the issues provided there is a more definite or specific method of stating them. Although called upon for suggestions as to the charge counsel did not suggest a more definite or specific method of stating the issues. Error in this respect would only call for reversal and not final judgment. It is my conclusion that the jury fully understood the issues in the case and that no prejudicial error intervened warranting a reversal. I further conclude from the whole record that substantial justice has been done the parties in the trial court and that the judgment should be affirmed.


author: By REYNOLDS, J.

text:
    ADKINS v. ADDISON et.
    Common Pleas Court, Franklin County.
    No. 173752.
    Decided May 31, 1950.
    L. P. Henderson, Columbus, for plaintiff.
    Marion Ross, Columbus, for defendant.
   OPINION

By REYNOLDS, J.

In this action plaintiff is seeking partition of certain real estate in the city of Columbus in which he claims to be the owner in fee of an undivided half interest and the defendant the owner of the other half. The Home Owners Loan Corporation holds a mortgage on the entire premises and the Division of Aid for the Aged holds a trust mortgage given to it by Anna M. Addison, on her application for old age pension, and by reason of same and the money advanced to the said Anna M. Addison by the Division of Aid for the Aged, said department has a lien on the said property, which had belonged to Anna M. Addison.

Anna M. Addison was the mother of plaintiff and she died intestate, leaving defendant her husband, and plaintiff as her only heirs, and it is as such that the parties each inherited a one-half interest in the premises, subject, of course, to the liens aforesaid.

In his answer to plaintiff’s petition defendant Addison alleges that by the trust agreement between Anna M. Addison and the Division of Aid for the Aged, he was to have the use and enjoyment of the property during his lifetime.

In a cross-petition he seeks to recover for money loaned by him to plaintiff in 1921 and for support of plaintiff’s daughter for 18 years beginning in 1921.

A demurrer to the cross-petition was overruled by another branch of this court for the reason that it did not appear from the pleading that the claims were barred by the statute of limitations.

In his reply plaintiff denies that there was any provision in the trust agreement whereby defendant Addison was to have the use and enjoyment of the trust property after the death of the grantor and asks for an accounting of the rents and profits of the property, which defendant has occupied since the death of Mrs. Addison in 1945.

It now appears that there has nothing taken place since the obligations set out in defendant’s cross-petition became due which tolled the running of the statute of limitations and the court can therefore not allow these claims as against plaintiff’s right to partition.

Sec. 1359-6 GC, provides as follows:

“Any applicant for or recipient of aid, or his or her spouse who is the owner of any interest in real or personal property * * * may convey, transfer, assign or mortgage such property to the Division of Aid for the Aged in trust, reserving to the recipient of aid and his or her spouse the right to use or reside upon, any such real property for life; and upon the death of either, leaving a surviving wife or husband who is eligible for aid, the right of the survivor likewise to use or reside upon said property for life. All real property assigned to the Division in trust under this section or any other section of law shall be conveyed to the division by a deed of trust or trust mortgage which instruments shall be construed as a conveyance in the nature of a mortgage and not as an unconditional transfer of title.”

It is the contention of counsel for plaintiff that since the trust deed made no specific reservation in favor of defendant that there can be no right in said defendant to occupy the property during his life.

The argument is advanced that the reservation in favor of the surviving spouse is permissive only and that unless the reservation is specifically stated, that there is no such right.

The court cannot agree with this interpretation of the statute. It provides that an applicant may convey, assign, etc. property to the Division in trust, reserving to the recipient and his or her surviving spouse the right to reside upon the real property for life.

The permission relates to the conveyance and not to the reservation.

An examination of the Trust Deed in question discloses that no specific reservation even in favor of the grantor is contained in the deed, but the reservation is a matter of law, as evidenced by the following in the habendum clause of the trust deed:

“To have and to hold with all the privileges and appurtenances thereunto belonging to the said Division of Aid for the Aged as Trustee, its assigns and successors in trust forever, but for the uses and purposes and upon the trusts as set forth in §1359 et seq, GC.
The said Division of Aid for the Aged as Trustee is hereby given and shall have power to sell all or any part of said property on the death of the grantor herein, providing the surviving spouse is not entitled to aid.”

It is clear, therefore, that upon any transfer to the Division of Aid for the Aged, a reservation in favor of the grantor and his or her spouse is provided by statute, and this is the interpretation adopted and followed by the department. It is also in keeping with the purpose of the law which is to care for aged and needy persons and insure them homes during the latter years of their lives when otherwise they might become completely dependent on public care.

Since Mrs. Addison died in March of 1945, and the Department of Welfare made no effort to realize on its security as provided in §1359-6 (b) GC, but permitted the surviving spouse of the grantor of the trust agreement to occupy the premises without any interference, it must be concluded that the Department considered him eligible for aid. While counsel in his brief argues that defendant is not eligible for aid and therefore not entitled to occupy the premises after the death of the recipient of aid under the statute, no issue of their claim was made in the pleadings, and nothing in the record supports the claim.

It is therefore the conclusion of the court that under the statutory provision of §1359-6 GC, to which specific reference was made in the deed of Anna M. Addison to the Division of Aid for the Aged, defendant Thomas Addison is to have the use and enjoyment of the premises during his life and that therefore plaintiff is not entitled to have partition of the same at this time.


author: By THE COURT.

text:
    ADKINS, Plaintiff-Appellant, v. ADDISON et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4501.
    Decided March 1, 1951.
    L. P. Henderson, Columbus, for appellant.
    Marion A. Ross, Columbus, for appellee, Thomas Addison. Herbert S. Duffy, C. William O’Neill, Attys, Geni., John A. Robenalt, L. C. Bliss, Asst. Attys. Geni., Columbus, for appellee, the Division of Aid for the Aged.
    William J. O’Hear, New York, N. Y., for appellee, Home Owners’ Loan Corporation.
   OPINION

By THE COURT.

We have examined the record in this case, the briefs of counsel and the opinion of the trial court. In our opinion Judge Reynolds has entered the correct judgment upon consideration of the whole of §1359-6 GC, which must be read into the trust deed.

The appellee, Thomas Addison, urges certain errors in his behalf but as no cross-appeal was filed, the same will not be considered, for holding as we do, the same could not be prejudicial. These errors complained of related only to defensive matters.

The judgment will be affirmed.

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


author: By MILLER, J:

text:
    THOMPSON, Plaintiff-Appellant, v. THOMPSON, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2144.
    Decided April 9, 1951.
    Melvin A. Scott, Dayton, for plaintiff-appellant.
    Routzohn, Routzohn & Nevin, Dayton, Culbert, Hyzer & Culbert, Fremont, for defendant-appellee.
   OPINION

By MILLER, J:

The only question presented by this appeal is the adequacy of the alimony awarded to the appellant, Susannah Thompson, upon her being granted a divorce from the defendant-appellee.

The record reveals that the parties hereto were married approximately twenty-six years ago; that neither of them was possessed of any property at that time, but over the period of years the following was acquired, which it is agreed is valued as follows:

(1) Home, jointly owned, $20,000.00
(2) Household goods, $3,500.00
Also the following property which was not appraised:
(3) U. S. Savings Bonds $1,100.00
(4) One Cadillac automobile
(5) A small amount of life insurance on the life of the appellee.

The home was encumbered by a mortgage to the extent of $3,583.49.

The plaintiff-appellant is fifty-one years of age, has never been employed since the marriage, her time being required in the home raising three children, each of whom is now past the age of majority. The appellee is employed as President of a corporation and also as a salesman on a commission basis. In the course of his employment he is required to pay his own traveling expenses but after deducting these his net income for the past three years has been: 1947, $18,694.39; 1948, $18,081.20; 1949, $15,191.40. At the time of the trial in October, 1950, the evidence did not establish what his earnings would be for the year, but it appears that in probability his earnings would be somewhat reduced because of the failure of one of his employers to pay him a bonus for the year. It will be noted that over the past three years his average annual net income has been approximately $17,300.00. The Court awarded the appellant the husband’s one-half interest in the home, subject to the mortgage, all of the household goods and $50.00 per month for ten years or until she shall remarry. Básed upon the agreed valuations it will be observed that the net value of the alimony awarded to the wife is approximately $17,700.00, figuring the husband’s equity in the real estate at $8,200.00.

Now the question presented is whether the award is an equitable allowance of alimony such as she is entitled to under §§11990 and 11991 GC. The appellee urges that consideration may not be given to the husband’s future earnings in making the award, citing Rahn v. Rahn, 48 Oh Ap 179, wherein it was held that an alimony award can be based only on the value of the real and personal estate of the defendant at the time of the divorce. An examination of this case revealed that future earnings were not involved. Hence, as to the property involved the rule laid down is correct.

The appellee also cites Lape v. Lape, 28 O. C. A. 108, as supporting his views, but this case was reversed in 99 Oh St 143, the first syllabus of which provides:

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

An examination of the figures involved herein discloses that the wife was awarded as alimony approximately the equivalent of one year’s net earnings of the husband. This was held to be an inadequate award and we think properly so in the case of Mooney v. Mooney, 48 Abs 229.

It is our conclusion that the alimony awarded to the wife is inadequate and manifestly against the weight of the evidence. The judgment is therefore reversed and the cause remanded to the Common Pleas Court for a redetermination of the alimony to be allowed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By HUNSICKER, PJ:

text:
    CORNELL, Admr. Bureau of Unemployment Compensation, Plaintiff-Appellant, v. WOLF, The Frankelite Co., Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22491.
    Decided June 23, 1952.

      C. William O’Neill, Atty. Geni., Columbus, C. E. McLeod, of Counsel, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., Columbus, J. E. Olsen, of Counsel, for defendant-appellees.
    (HUNSICKER, PJ, DOYLE, J, of the 9th District; METCALF, J, of the 4th District, sitting by designation in the 8th District.)
   OPINION

By HUNSICKER, PJ:

Phyllis R. Wolf, appellee herein, filed a claim for benefits with the Bureau of Unemployment Compensation. Her claim was denied by the administrator. Upon appeal to the referee, the claim was allowed. The Board of Review affirmed the decision of the referee. Upon appeal to the Common Pleas Court, the decision of the Board of Review was reversed for the reason that such decision is “unlawful, unreasonable and against the manifest weight of the evidence.”

From the Judgment of reversal by the Common Pleas Court, the Board of Review of the Bureau of Unemployment Compensation appeals to this court on questions of law.

Phyllis R. Wolf lost her employment and thereafter registered for work at the proper employment office. The employment office referred her for work to a company located within the City of Cleveland in the same general area where she resided. Mrs. Wolf was divorced from her husband and had the care and custody of her four year old child.

Mrs. Wolf accepted the referral paper and noted from such paper that the work to which she was referred required her to be at the office of the prospective employer at 8 o’clock A. M. to begin work. She also knew that the Day Nursery where she placed her child did not open until 7:30 o’clock A. M. From knowledge which the referee possessed and upon inquiry made by him, he found the time necessary to travel by the public transportation system from the nursery to the office of the prospective employer would consume “about thirty minutes.”

No attempt was made by Mrs. Wolf to contact the prospective employer and, except from statements made to her by unknown and unidentified persons, she did not make any effort to see if she could get from the Nursery to the prospective employer’s place of business within the time available to her.

Under these facts, was there some obligation imposed on Mrs. Wolf to determine her ability to comply with the referral?

“Unemployment compensation is based upon the philosophy that employment and not unemployment is the goal to be attained * *

Chambers v. Owens, A. K. Co., 146 Oh St 559 at 570.

From the statements contained in her claim for compensation, Mrs. Wolf did make an effort to secure employment at places other than the one to which she was referred by the employment office. This, of course, she was required to do under the terms of the statute. (Sec. 1345-6-4 GC.)

This statute, in sub-section (5) requires a showing that the claimant, before being entitled to receive benefits under the Unemployment Act “is unable to obtain suitable work.”

The Supreme Court of Ohio in the recent case of Shannon v. Bureau of Unemployment Compensation, 155 Oh St 53, said:

“The burden of proof is upon the claimant to establish the right to unemployment benefits under the unemployment compensation law of Ohio.”

The circumstances of each case should be considered in arriving at a determination of the question whether the claimant is unable to obtain suitable work. It may be that if Mrs. Wolf had tried to get to the prospective employer’s place of business from the Nursery she could have done so within the time available to her. It is also very probable that a conference with such employer would have resulted in arrangements satisfactory to all parties. Mrs. Wolf was content to depend on her own conjecture and with no effort on her part to comply with the requirement that she “actively” seek work. To hold that the claimant to whom a referral for work has been given may do nothing where the distance to be travelled to such work it not “an unreasonable distance from her residence” (§1345-6-[d] 2 GC) and hence receive compensation would be placing a premium upon inaction.

We believe that under the circumstances of the instant case, Mrs. Wolf did not comply with the provisions of the Unemployment Compensation Law. The judgment of the Common Pleas Court was proper. Judgment affirmed. Exceptions noted. Order see journal.

DOYLE, J, METCALF, J, concur.


author: By THE COURT. By HORNBECK, PJ,

text:
    McCUNE, Plaintiff-Appellant, v. INDUSTRIAL NUCLEONICS CORPORATION et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4549.
    Decided September 27, 1951.
    Russ Bothwell, Columbus, for plaintiff-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Rudolph Janata, Jr., of Counsel, Columbus, for defendant-appellee, Robert A. Minch. u
    Folkerth & Folkerth, Columbus, for defendant-appellee, Industrial Nucleonics Corporation.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court dismissing the petition for the reason that counsel for the plaintiff refused to comply with the court order sustaining a motion to strike certain matters from the petition. The material part of plaintiff’s petition reads as follows:

“Plaintiff says that at about 5:25 P. M. on August 29. 1950 she was driving a DeSoto auto going west on Fourth Avenue approaching and crossing Summit Street; that at said time and place defendants were driving a Chrysler auto going south on Summit Street approaching and crossing said Fourth Avenue. Fourth Avenue is an east-west street and Summit Street is a north-south street and said streets intersect each other in the residential district of the city of Columbus, Ohio. Defendants caused the front end of their Chrysler to crash into the right side of the DeSoto then stopped in the said intersection, as more fully hereinafter described. Defendants were negligent in the following respects in proximately causing the aforesaid collision to wit:
“Defendants failed to stop within their assured clear distance ahead in that, plaintiff had brought her DeSoto to a stop headed west in the center of the intersection and remained in that condition all the time while defendants were driving their Chrysler going south in Summit Street approaching and entering the said intersection and crashed their automobile into the side of plaintiff’s standing automobile.
“2. Defendants did not keep any lookout ahead of them.
“3. Defendants continued on at unabated speed after becoming aware of the aforesaid position of plaintiff’s car and failed to cheek their speed or to divert the course of their car after becoming aware of the peril of the impending collision.” (Emphasis ours.)

The defendant, Robert A. Minch, filed a motion to strike from the petition the words underscored in the first and third specifications of negligence, alleging that the same was “surplusage, argumentative, repetitious, duplicitous; conclusions, improper and prejudicial.” The trial court in sustaining the motion to the first specification was of the opinion that the matter sought to be stricken was evidentiary in character. He stated further that the operative fact to support alleged violation of the assured clear distance ahead rule is pleaded in the body of the petition.

We find no error in this ruling and are in accord with this legal conclusion.

It is the duty of the pleader to allege ultimate facts as distinguished from the evidence which would be adduced in support of the allegations. Kerr v. Bellefontaine, 59 Oh St 446, 52 N. E. 1024. The court also sustained the motion to the third specification for the reason that the words stricken were repetitious. We are also in accord with this conclusion for the reasons given. These words may be classified as being redundant and the ruling on such a motion is addressed to the sound judicial discretion of the trial court whose ruling will not be disturbed unless that discretion is shown to have been abused. The Cleveland Punch & Shear Works Co. v. The Consumers Carbon Company, 5 O. C. C. (N. S.) 258; 25 O. C. C. 307, reversed on other grounds in 75 Oh St 153.

The record reveals that there was a second defendant in the action, to wit, Industrial Nucleonics Corporation, which filed an answer to the plaintiff’s petition. In so doing it has waived any defects which may have been contained in the petition.

We are of the opinion that the order of dismissal should have been directed only to the defendant, Robert A. Minch, and not to both parties defendant. The order dismissing the Industrial Nucleonics Corporation will be reversed and the cause ordered remanded to the trial court for further proceedings.

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

By HORNBECK, PJ,

concurring.

I concur in the action of the majority in affirming the dismissal of the petition against defendant-appellee, Robert A. Minch, but for a different reason than that asserted in the majority opinion.

The petition stated a cause of action in the second specification of negligence “that the defendants did not keep any lookout ahead of them” and had the appellant complied with the dismissal order he had the right to proceed upon the second specification of negligence and, in probability, the Common Pleas Court was of opinion that the first specification of negligence stated a cause of action without the matter ordered stricken in sustaining the motion. However, appellant, with knowledge of his rights, elected to refuse to comply with the order of the Court and there is thus presented only the question whether the judge abused his discretion in sustaining the motion. I believe that he acted within his discretionary power although he may have erred in sustaining the motion. Harrison v. Knight, Admr., 19 O. C. C. (N. S.) 457.

In my judgment the court erred in sustaining the motion in both particulars challenged on this appeal. It is of course basic that a pleader must set up operative facts which constitute a cause of action. In a negligence case it is not sufficient nor proper to plead only the violation of a statute in terms of the statute. Goldsberry v. Lefevre, 24 Abs 146. Thus, the mere averment in the petition that defendants failed to stop within their assured clear distance ahead is not good pleading and there must be set forth other ultimate facts which require the conclusion that the assured clear distance ahead provision of the statute has been violated. I am unable to find any subject matter in the allegations of the petition prior to that which the court ordered stricken which would require the conclusion that the defendant violated the assured clear distance ahead statute. There is but a recitation of the fact that the parties were approaching the intersection where the collision occurred; that the plaintiff had stopped her automobile in the intersection without designating the exact place where she had stopped and that defendants driving a Chrysler crashed into the right side of the DeSoto. Indulging the presumption of due care on the part of the defendants we find no operative facts in that part of the petition which we are now discussing which invokes the application of §6307-21 GC. Manifestly, the pleader had no purpose to charge a negligent act up to the language objected to by the motion because thereafter he sets out what he asserts constitute the specifications of negligence. There may be some question if the language stricken is a charge of violation of the assured clear distance ahead statute, although it may be so construed; without it there is, in my judgment, no such averment.

The court erred in striking from the third specification the averment “and failed to check their speed” and “after becoming aware of the peril of the impending collision.” The averment “after becoming aware of the peril of the impending collision” is material to the stating of a cause of action and the language in its entirety conforms closely enough to the fifth syllabus of Morris v. Bloomgren, 127 Oh St 148, to be good as against the motion to strike.

I also concur in the reversal of the judgment in dismissing the defendant Industrial Nucleonics Corporation.