author: By SKEEL, J:

text:
    RIDGEWAY, Plaintiff-Appellee, v. RIDGEWAY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23123.
    Decided April 7, 1954.

      Louis Fernberg, Louis P. Fernberg, Jr., L. E. Appleton, Cleveland, for plaintiff-appellee.
    Alexander H. Martin, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law. The action is one in divorce. The trial court entered a decree of divorce for plaintiff and filed findings of fact and conclusions of law upon request of the defendant timely made. The plaintiff filed her petition for divorce in which the only allegations of fact as grounds for divorce were:

“Defendant, in violation of his marital obligations toward the plaintiff, has been guilty of gross neglect of duty and extreme cruelty:—testimony of which will be produced at the trial. * *

The defendant filed an answer denying the allegations of plaintiff’s petition, and filed a cross-petition setting forth alleged grounds for divorce in his favor against the plaintiff. The plaintiff did not file a reply to defendant’s answer, or an answer to defendant’s cross-petition. The case went to trial on the pleadings, without motion or objection, and at the conclusion of the trial the court found facts sufficient to justify a decree for divorce for the plaintiff, and against the defendant on his cross-petition, and found such findings of fact as supporting the following conclusions of law:

“The defendant is guilty of gross neglect of duty and plaintiff is granted divorce and is awarded the Clearview Road property, the automobile now in her possession, and $1000.00 by way of attorney fees.”

The findings of fact and conclusions of law were filed with the papers in the case and journalized on January 4, 1954. A motion for new trial- was filed January 5, 1954. The court did not pass on this motion for new trial, but signed and filed for journalization a decree granting plaintiff a divorce on February 2, 1954. Thereafter a second motion for new trial was filed on Feb. 4th and overruled February 10, 1954.

The defendant’s first notice of appeal was filed January 25, 1954 on questions of law and a second notice of appeal was filed on February 23,1954.

The errors assigned are as follows:

“1. Dismissal of defendant’s cross-petition when the allegations thereof stood on the record conclusively admitted to be true, because no denial thereof was made by the plaintiff.
“2. Failure and refusal to grant the prayer of defendant, requesting the dismissal of the amended petition, the defendant having fully answered—pleading new matter, and no reply having been filed, putting allegations thereof in issue.
“3. Granting divorce and other relief incident thereto, to the plaintiff when a divorce and general relief should have been granted to the defendant on the admitted charges of gross neglect of duty and extreme cruelty in his cross-petition.
“4. The special findings transcend the issues made by the pleadings and are foreign to and irrelevant to the issues presented on the pleadings.
“5. Facts found, do not sustain the conclusions of law.
“6. Error in not promptly granting defendant’s motion for a new trial filed January 5, 1954.
“7. The entry of a general judgment and decree under date of Feb. 2, 1954, when the court was mandatorily required to return special findings in the case.
“8. The facts found and the conclusions of law have no competent evidence in the record to sustain the same, because of the factual insufficiency of said amended petition.
“9. The overruling of defendant appellant’s motion for a new trial.
“10. Other errors, defects and irregularities too numerous to here detail the indulgence and perpetration of which ousted the court of jurisdiction and rendered its decree of divorce and alimony void.”

It is clear from the record that the court did not intend that its conclusions of fact and law should constitute the decree for divorce. The journalizing of such findings on January 4, 1954, did not constitute the judgment of the court. For that reason there was no judgment which could be the basis for the filing of a motion for new trial on Jan. 5, 1954. The defendant’s attempt to file such a motion on Jan. 5, 1954 was of no legal effect.

We have examined the bill of exceptions and the transcript and we find that on the record this appeal does not entitle the appellant to the relief he seeks.

First, it is claimed that no answer having been filed to the defendant’s cross-petition, constitutes an admission of the allegations of fact contained therein, and if such facts be admitted the plaintiff is not entitled to a divorce as a matter of law.

There is no such thing as judgment by defalut in a divorce action. The failure to controvert or put in issue the allegations of a petition answer or cross-petition by answer or reply, in no sense constitutes admissions of the truth of the allegations contained in such pleadings in a divorce action.

The statute (Sec. 3105.11 R. C.) on the right of a plaintiff to a divorce on the allegations of a petition not put in issue by answer provides:

“A judgment for divorce or for alimony shall not be granted upon the testimony or admissions of a party unsupported by other evidence. No admission shall be received which the court of common pleas has reason to believe was obtained by fraud, connivance, coercion, or other improper means. The parties, notwithstanding their marital relations, shall be competent to testify in actions and proceedings under §§3105.01 to 3105.31, inclusive, R. C., to the same extent that any other witness might.”

This section has application to the allegations of a cross-petition. A divorce action is one provided for by statute and is based on an appeal to the sound discretion of the trial (common pleas) court for the determination of facts in support of one or more of the grounds for divorce as provided by statute, which, if established by sufficient evidence, authorizes the judge to enter a decree accordingly, and technical rules of pleading, or the failure to plead by answer or reply, cannot be considered as admissions or take the place of required proof in such an action. It should also be noted that no objection was made to proceeding on the pleadings as they were when the case was called for trial.

It is next claimed that the petition which charges gross neglect of duty and extreme cruelty without allegations of fact which, if established, would constitute proof of such charges, does not state a cause of action. This contention 'is not supported by the cases. While a petition so drawn is subject to a motion to make definite and certain, it is not subject to demurrer. Kelley v. Kelley, 74 Oh Ap 225.

An examination of the bill of exceptions shows that the court’s conclusions of fact are well supported by credible evidence.

The claim that the court committed reversible error in failing to rule on defendant’s first motion for new trial, is not well taken because the motion was filed before judgment .and was therefore not one which the court need consider, and if further appearing that the court ruled on a second motion for new trial filed after judgment was entered.

For the foregoing reasons the judgment of the common pleas court is affirmed. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


source: Caselaw Access Project

author: By NICHOLS, J.

license: Public Domain

text:
    WHITE CROSS HOSPITAL, Plaintiff-Appellant, v. CHESAPEAKE & OHIO RAILWAY CO., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4916.
    Decided November 9, 1953.

      Walter Siemer, Columbus, for plaintiff-appellant.
    Wilson & Rector, Harrison W. Smith, Jr., of Counsel, Columbus, for defendant-appellee.
    NICHOLS, J, of the Seventh District, PUTNAM, PJ, MONTGOMERY, J, of the Fifth District, sitting by designation.
   OPINION

By NICHOLS, J.

Plaintiff instituted this action in the Municipal Court of Columbus, Ohio, against the defendant, a common carrier engaged in transporting persons and property, praying for .damages to goods in transit over defendant’s railroad from Kenosha, Wisconsin, to Columbus, Ohio, under a Uniform Bill of Lading provided for in the Federal Act governing such carriage.

After alleging the corporate capacities of the parties, plaintiff in its petition alleged that

“on or about July 8, 1950, Simmons Company of Kenosha, Wisconsin, delivered to defendant at its siding in Kenosha, Wisconsin, a shipment of furniture, represented by invoice number K 50474 L, to be safely transported to Columbus, Ohio, a station on said railroad and to be delivered to White Cross Hospital, the plaintiff herein; that said furniture was subsequently received and accepted by plaintiff; that defendant was paid the regularly authorized scheduled rates for the transportation of said furniture.”

Plaintiff further alleged that

“the defendant did not safely carry and transport said furniture from Henosha, Wisconsin, to Columbus, Ohio, and deliver the same without damage to said plaintiff as it agreed to do, but that the following articles of furniture were damaged as described below.”

The petition then sets forth a list of the furniture claimed to be damaged.

Plaintiff further alleged that

“said furniture was reasonably worth $286.60, at the time of delivery to defendant at Kenosha; that said furniture was valueless to plaintiff at the time of delivery to it; that defendant was notified of such damage and that defendant accepted said damaged furniture from the plaintiff. Plaintiff has since demanded payment of the sum of $286.60 from defendant and the defendant has refused and still refuses to pay said sum.”

Plaintiff prays judgment against the defendant in the sum of $286.60 with interest and costs.

The defendant answered and after admitting the corporate capacity of plaintiff, its own corporate capacity, and that it was operating a railroad as a common carrier for the transportation of freight and passengers for hire, into and through and out of the State of Ohio and to various points within and without the State of Ohio, for its first defense denied each and every allegation of the petition.

For its second defense the defendant says

“that, if the shipment was made as alleged in the petition, the carriage of said goods by the defendant was pursuant to. a contract known as a Uniform Domestic Straight Bill of Lading. By the terms of said contract it was provided that as a condition precedent to recovery by the plaintiff, claim must be filed in writing with the receiving or delivering carrier or carrier issuing the bill of lading or carrier on whose line the loss, damage, injury, or delay occurred, within nine months after delivery of the property.”

Defendant further alleged:

“that plaintiff failed to comply with the terms of said contract in that it filed no claim for loss or damage with defendant or any other carrier within nine months after delivery of the property.”

The defendant prayed that it may go hence without day and recover its costs.

For reply to defendant’s second defense plaintiff alleged

“that defendant did not furnish said plaintiff with a copy of the alleged contract under which the carriage of said goods was supposedly made; that on or about July 8, 1950, plaintiff notified defendant of possible damage to the said goods, the extent of which could not reasonably be ascertained for some time; that defendant’s agent informed plaintiff that when the extent of the damage could be ascertained the defendant should be notified; that on or about May 20, 1951, the earliest time within which the full extent of the damages could be ascertained, plaintiff did so notify the defendant of the extent of said damages; that defendant’s agent investigated the said damage at that time and did represent that the claim would be paid in due time. Plaintiff relied on the conduct and representations of said defendant in not presenting its claim in writing within nine months after delivery of the said goods.
“Wherefore, plaintiff prays that the defendant be estopped from setting up the second defense and that plaintiff recover according to the prayer in its petition.”

To plaintiff’s reply the defendant demurred “because on its face it is insufficient at law.” The trial Court sustained this demurrer, and the plaintiff not desiring to plead further and the case coming on further to be heard on the motion of the defendant made in open court for judgment on the pleadings, the trial Court sustained such motion and ordered and adjudged that the petition be dismissed and that the defendant go hence without day and recover its costs. Exceptions were duly entered by the plaintiff and appeal was duly prosecuted to this Court of Appeals.

There can be no doubt but that the action is governed by the Federal Act. Much time and effort has been expended by counsel for the parties in attempting to differentiate between waiver and estoppel, but both parties agree that the carrier cannot waive the provisions of the contract of carriage. However, plaintiff earnestly contends that by its conduct as related above, defendant became “estopped” from defending the action on the ground that plaintiff failed to file written notice of its claim within nine months from the date of delivery of the goods. Thus the issue before this Court is clearly defined as follows: “Under the contract designated as the Uniform Domestic Straight Bill of Lading may the carrier be estopped by its alleged conduct inducing the plaintiff to fail to have written notice given to defendant of its claim for damages within nine months from the date of the delivery of the goods upon which conduct the plaintiff relied?”

The demurrer admits that plaintiff did notify defendant on July 8, 1950, a day within nine months from the delivery of the goods, of possible damage to the goods, the extent of which could not be ascertained for some time and that defendant’s agent informed plaintiff that when the extent of the damage could be ascertained the defendant should be notified. The demurrer also admits that plaintiff did notify defendant of the extent of the damage on or about May 20, 1951, which was the earliest time within which the full extent of the damage could be ascertained. The demurrer also admits that the defendant at that date, to wit, May 20, 1951, investigated the damage and at that time did represent that the claim would be paid in due time.

The demurrer also admits that plaintiff relied on the conduct and representations of the defendant in not presenting its claim in writing within nine months after delivery of the goods.

It will be noticed that nowhere in the reply of the plaintiff to the second defense of the answer does the plaintiff claim that the defendant’s agent told the plaintiff that it need not file its claim in writing when the extent of the damage would be ascertained. It follows that there was no conduct of the defendant’s agent upon which plaintiff could rely for its failure to file its claim in writing.

Whether the defendant furnished plaintiff with a copy of the alleged contract under which the carriage of the goods was made is immaterial since plaintiff was bound with knowledge of the provisions of the Uniform Bill of Lading which had been filed with the Commission and approved by it. There is no denial that the shipment was made upon a Uniform Bill of Lading, as required by the law. Plaintiff was, therefore, bound with knowing that it was required to make its claim for damages in writing and apparently there was nothing said by the agent of the Railroad Company from which the plaintiff could properly claim that it was misled by the defendant in failing to make its claim in writing. It may well be that estoppel does not arise in this case at all. That plaintiff did rely upon what was said by the agent of the Railroad Company is admitted but whether it had the rignt to rely thereon is not admitted by the defendant. It seems perfectly clear that while the plaintiff may have relied upon the representations of the defendant’s agent that it need not file its claim within nine months, the plaintiff, under the circumstances shown in this case, did not have any right to claim that the Railroad Company had estopped itself from requiring that the plaintiff’s claim be filed in writing. The provision in the contract of carriage requiring any claim of damage in course of the transportation be made in writing is a reasonable requirement, to the end that the Commission may have specific knowledge whether there has or has not been any conduct upon the part of the Railroad Company tending to show that it has given or granted some privilege to one shipper which it would not give to another, the purpose of the Act being to prevent discriminations in any manner between shippers.

However, it seems from the briefs and arguments of counsel for the Railroad Company that its sole contention is that the Railroad Company can neither waive any provision of the contract of carriage, estop itself from claiming violation of the provisions of the contract or in any other manner permit deviation from the requirements of the contract as approved by the Commission. . As stated above, the Act is to be construed by the Federal Courts and not by the State Courts. The State Court is not privileged to determine that the requirement of the carriage contract as to filing claims in writing or within nine months from the date of delivery is an unreasonable rule or requirement. Indeed, in Chesapeake & Ohio Railway Co. v. Martin, 283 U. S. 211, Mr. Justice Sutherland criticized the State Court of Virginia because it followed its own prior decision and ignored the decision of the United States Court, saying,

“This lawfully it could not do, and the question, as we have shown being a Federal question to be determined by the application of Federal law. The determination by this Court of that question is binding upon the state courts and must be followed, any state law, decision, or rule to the contrary notwithstanding.”

In the last cited case it is held in the syllabus:

“1. The question whether a provision in an interstate bill of lading limiting the time for filing claim for loss of property has been complied with is a federal question, to be determined by the application of federal law.”

In the opinion, at page 222 the Court states:

“It is held by this court that the shipper may not invoke the doctrine of estoppel against the right to collect the legal rate, because to do so would be to avoid the requirement of the law as to equal rates. Pittsburgh, C., C. & St. L. Ry. Co. v. Fink, 250 U. S. 577, 582; Louisville & N. R. Co. v. Central Iron Co., 265 U. S. 59, 65, and cases cited. These decisions lend support to our conclusion in respect of the matter here. Whether under any circumstances the shipper may rely upon that doctrine in avoidance of the time limitation clause of the bill of lading, we need not now determine. But the Blish Company case makes clear that the fact that delivery was made contrary to instructions, due to the misunderstanding or negligence of the carrier, cannot successfully be set up as an estoppel against the claim of a failure to comply with the requirement of the bill of lading here involved. To allow it would be to alter the terms of a contract, made in pursuance of the Interstate Commerce Act and having, in effect, the quality of a statute of limitation, and thus to open the door for evasions of the spirit and purpose of the act to prevent preferences and discrimination in respect of rates and service. Compare A. J. Phillips Co. v. Grand Trunk Western Ry. Co., 236 U. S. 662, 667.”

By analogy of reasoning we believe it is safe to assume that the Federal Court would hold that the doctrine of estoppel cannot apply in this case.

Counsel for the plaintiff has urged that at least indirectly the Federal Court in the cited case has held that under certain circumstances the doctrine of estoppel may apply since that Court in the last quoted paragraph of the opinion says:

“Whether under any circumstances the shipper may rely upon that doctrine in avoidance of the time limitation clause of the bill of lading, we need not now determine.”

It would seem, however, that this Court of Appeals may not undertake to say that the provision in the bill of lading involving the shipment in this case may be ignored, since to do so would be to usurp the functions of the Federal Court. We believe the Supreme Court of the United States. has determined the precise question involved in this appeal. In the case of Georgia, Florida & Alabama Railway Company v. Blish Milling Company, 241 U. S. 190, the Supreme Court stated in the opinion:

“There is, however, a further and controlling consideration. We are dealing with a clause in a bill of lading issued by the initial carrier. The statute cast upon the initial carrier responsibility with respect to the entire transportation. The aim was to establish unity of responsibility. * * * The clause (with respect to notice of claims) * * * gave abundant opportunity for presenting claims, and we regard it as both applicable and valid. * * * the parties could not waive the terms of the contract under which the shipment was made pursuant to the Federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct, and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed. * * * We are not concerned in the present case with any question as to the applicability of the provision, and its validity, and as we find it to be both applicable and valid, effect must be given to it.” (Emphasis supplied.)

There can be no doubt that the provision of the bill of lading requiring the plaintiff to file any claim it may have for damages in shipment is an applicable and valid requirement, and in accordance with the cited case this Court must give effect thereto. This is but another way of saying that neither by waiver, by conduct creating an estoppel or in any other manner can the Railroad Company deviate from the requirement of the contract. It is the conclusion of this Court that even though the act of the agent of the Railroad Company in doing the things alleged in plaintiff’s reply to the second defense set up in its answer may have been sufficient to create an estoppel in a case where only state law is to govern, nevertheless we are not privileged to recognize that any such estoppel can in any manner affect the provisions of the Uniform Bill of Lading.

It is proper to observe that although the plaintiff may have in fact relied upon the conduct of the defendant in failing to file its claim in writing within nine months as provided in the bill of lading, the question of the right of the plaintiff to so rely is to be determined by the Federal Act.

It is the conclusion of this Court that the plaintiff cannot prevail and that being the judgment of the Municipal Court wherein it sustained the demurrer filed by the defendant, its judgment must be and is affirmed.

PUTNAM, PJ, MONTGOMERY, J, concur.


author: By BADER, J.

text:
    McCRARY et. v. KNIGHT et.
    Common Pleas Court, Hamilton County.
    No. A-123099.
    Decided February 6, 1951.

      Mitchell Wilby, R. T. Dickerson, Cincinnati, for plaintiffs.
    William J. Creed, Cincinnati, for defendants.
   OPINION

By BADER, J.

This case came before the Court on the demurrer of the defendants to plaintiffs’ petition.

Plaintiffs allege that plaintiffs purchased the real estate in the petition described in 1946 and that the lot immediately' westwardly fronting on the north side of St. Clair Street is owned by the defendants.

Plaintiffs allege further that about August 1946 they began certain alterations in the residence constructed on their lot and found that the wall in “back of the plaster was rotted away by moisture that had long permeated said wall.”

The petition further states that the defendants had changed “the natural surface of the ground by erecting and maintaining a stone wail immediately ajacent to the premises of the plaintiffs and in contact with the plaintiffs’ house * * * that the defendants and their predecessors in title maintained a fill about seven (7) feet in depth * * * and * * * there was a cement covering over the top of said fill with a drain designed and intended to drain the cement surface * * * and to cause said water to collect in the ground underneath the cement covering * * * and from there to flow and escape from their premises into and' upon the house on the premises of the plaintiffs.”

The plaintiffs further state that “the water so caused to flow and to be discharged * * * was concealed by the cement covering and was not capable of being ascertained by the observation of a person of ordinary care and experience” and was not discovered “* * * until they made the said opening in the west wall of their house for the installation of bathroom water pipes in said wall” in August 1946.

The defendants set forth four reasons for demurrer:

1. Plaintiffs do not state a cause of action against the defendants.

2. Plaintiffs have no cause of action against the defendants.

3. Plaintiffs have failed to bring their action within the time required by the Statute of Limitations.

4. Plaintiffs are guilty of laches in filing their action.

The Court does not agree with defendants that the plaintiffs do not state a cause of action or that plaintiffs do not have a cause of action. The petition clearly sets forth that the water was diverted and allowed to collect and that by reason thereof the plaintiffs were damaged.

The defendants for their third reason for demurrer contend that plaintiffs failed to bring their action within the time required by the Statute of Limitations.

It very clearly appears from the petition that the drainage complained of was surface watér diverted and “permitted to flow into the ground beneath said paving and from thence into and through the wall of the defendants and in and upon the premises of the plaintiffs as aforesaid * * * that the plaintiffs did not discover and could not have discovered, by any reasonable inspection, * * *” and further that it was not discovered until August 1946. This may or may not be within the four year period wherein plaintiffs can recover inasmuch as the petition was filed on August 11, 1950.

Sec. 11224 GC provides, among other things, the following: “If the action be for trespassing under ground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it be for fraud, until the fraud is discovered.”

It appears to the Court that the alleged drainage was a continuous nuisance and that the Statute of Limitations would not begin to run until it was discovered, and until the trespass or nuisance by adverse use ripens into and becomes a presumptive right in the state, the plaintiffs may bring their action. Louisville Brick & Tile Co. v. Calmelat, 6 Oh Ap 435; Gill v. Fletcher, 74 Oh St 295, 78 N. E. 433; Valley Railway Co. v. Franz, 43 Oh St 623, 4 N. E. 88; Nafzger v. Nieman & Toker, 12 Abs 735; 25 O. Jur. 521, Sec. 144; §11224 GC.

There is nothing in the pleadings to contradict the fact averred in the petition that they had no notice of the original trespass and nuisance until it was discovered in August 1946.

I know of nothing in the law, nor have any cases been cited by counsel, that prevents the assignment of a claim, good or bad, either before or after judgment. The assignee will receive no more or less than the assignor has a right to assign.

The fourth ground for demurrer presented by defendants is that the plaintiffs are guilty of laches. Laches is primarily a defense and may be pleaded as such but where it is given as a ground for a demurrer, it becomes a general demurrer and searches the record. It is true that the petition alleges that the nuisance has continued for many years but they also allege that the trespass and nuisance could not and was not discovered until August 1946.

This case is before the Court on a demurrer and the Court is of the opinion, in view of the allegations in the petition, that the demurrer is not well taken and should be overruled.


author: By HUNSICKER, J.:

text:
    STATE, ex rel. RAYDEL, Plaintiff-Appellant and Cross-Appellee, v. RAIBLE, Defendant-Appellee and Cross-Appellant. STATE, ex rel. RAYDEL, Plaintiff-Appellee, v. RAIBLE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 22823, 22824.
    Decided February 4, 1954.

      Corrigan, McMahon & Corrigan, Cleveland, for plaintiff-appellant and cross-appellee in Case No. 22823, and plaintiff-appellee in Case No. 22824.
    William J. Kraus, Edward Lurie, Cleveland, for defendant-appellee and cross-appellant in Case No. 22823, and defendant-appellant in Case No. 22824.
    (DOYLE, PJ, HUNSICKER, J, of the 9th District: GRIFFITH, J, of the 7th District, sitting by designation in the 8th District.)
   OPINION

By HUNSICKER, J.:

This court has before it an appeal on questions of law filed by C. Greif Raible, defendant below, docketed as case number 22,824, in the Court of Appeals of Cuyahoga County, Ohio. This is known as the paternity case, and in this matter State of Ohio, on relation of Alice E. Raydel, was the plaintiff and is now the appellee.

There is also before this court an appeal on questions of law filed by State of Ohio, on relation of Alice E. Raydel (The appellee in case No. 22,824), docketed in the same Court of Appeals as case No. 22,823. C. Greif Raible filed a cross-appeal in case No. 22,823, and hence, as to such case, he is a cross-appellant.

Inasmuch as the appeals arose out of the same controversy, viz., a judgment declaring C. Greif Raible to be the father of a child born to Alice E. Raydel, an unmarried woman, the cases were argued jointly; and, consequently, one opinion is written to set forth the conclusions of the court.

In this opinion, the parties will be designated by name, in order to avoid the confusion that would arise if we spoke only of appellant and appellee.

On December 28, 1949, there was born to Alice E. Raydel, an unmarried woman, a male child.

On July 9, 1951, Alice E. Raydel filed a complaint in bastardy before Myron J. Penty, Jr., a justice of the peace for Warrens-ville Township, Cuyahoga County, Ohio, in which complaint she alleged that C. Grief Raible, a resident of Geauga County, Ohio, was the father of such child. The justice of the peace caused a warrant to issue for the arrest of C. Grief Raible, and, pursuant to such warrant, C. Greif Raible came to the office maintained by justice of the peace, Myron J. Penty, Jr., at 1230 Ontario Street, Cleveland, Ohio, Cuyahoga County, such office not being located in Warrensville Township.

Justice of the peace Penty then proceeded with the preliminary hearing, entered the plea of not guilty made by C. Greif Raible, who entered his personal appearance, administered the required oath to the complainant, Alice E. Raydel, and presided at the hearing while she gave her testimony, which was done in the presence of the defendant. A lengthy cross-examination of Alice E. Raydel was conducted by counsel for C. Greif Raible. At the conclusion of the testimony of Alice E. Raydel, the justice of the peace found probable cause to believe that the child, born to Alice E. Raydel, was the child of C. Greif Raible, and bound C. Greif Raible to the next term of the Court of Common Pleas for Cuyahoga County, Ohio.

Up to this time there was no objection to the acts or jurisdiction of the justice of the peace. After the case was transferred to and docketed in the Court of Common Pleas, and after many motions and hearings were had before the said Common Pleas Court, C. Greif Raible filed a demurrer and plea in abatement, wherein he challenged the jurisdiction of the said Common Pleas Court over the subject matter of the action, alleging in such pleadings that the justice of the peace had no authority, while outside of his township, to act in the bastardy case, or to bind C. Greif Raible over to the Court of Common Pleas of Cuyahoga County.

On motion of Alice E. Raydel, the Common Pleas Court ordered such demurrer and plea in abatement stricken from the flies.

C. Greif Raible, notwithstanding the long and intense cross-examination of Alice E. Raydel at the time of the hearing on her complaint before the justice of the peace, sought to take her deposition and the deposition of other witnesses. Counsel for Alice E. Raydel filed a motion to stay, and restrain the taking of the depositions. This motion to restrain C. Greif Raible from the taking of depositions of witnesses, including the deposition of Alice E. Raydel, was granted. On appeal to the Court of Appeals, the order restraining the taking of depositions was modified. The judgment of the Court of Appeals permitted the taking of depositions of witnesses other than Alice E. Raydel.

Just before the time of trial. C. Greif Raible asked for a continuance of the trial, in order to permit him to take the deposition of Alice E. Raydel. The trial court refused this request and ordered the case to proceed to trial.

At the beginning of the trial and before opening statements were made by either party, C. Greif Raible filed a second demurrer on the ground that the court had no jurisdiction of the subject matter of the action. The trial court overruled this demurrer. C. Greif Raible then objected to the introduction of any testimony, which objection was also overruled by the trial court.

The matter before the court was bitterly contested by C. Greif Raible, for the transcript of docket and journal entries shows numerous appeals, on preliminary matters, to the Court of Appeals and the Supreme Court of Ohio. The record of testimony taken at the trial and the numerous exhibits introduced, or sought to be introduced, cover nearly 2000 pages.

At the trial, C. Greif Raible did not testify in his own behalf, and the trial judge, at the request of counsel for Alice E. Raydel, read, over the objection of counsel for C. Greif Raible, the following special written charge before oral argument to the jury:

“The court instructs the jury that the defendant is entitled to be a witness in this action for himself, and that the failure of the defendant to testify may be considered by you in determining the issue in this cause.”

The jury returned a verdict of guilty, and the trial court entered a judgment on such verdict. The judgment also ordered C. Greif Raíble to pay, to Alice E. Raydel, $7400 from the date of birth of the child to the date of the entry of the judgment of paternity; $1000 for the necessary expenses of pregnancy and childbirth; $50 per week from January 29, 1953, to December 1961, and $60 per week thereafter until the child reaches the age of 18.

The appeal numbered 22,823, as instituted by Alice E. Raydel, is based upon the refusal of the trial court to: first, award counsel fees for the prosecution of the bastardy action; and second, to give to Alice E. Raydel a substantially larger sum for the support of the child and for expense of pregnancy and childbirth. The cross-appeal is based on the award by the trial court of: first, the sum of $7400 for support of the child from the date of birth to the date of adjudication of paternity; second, the claim that a portion of the weekly payment of $50, and later $60, is to help support Alice E. Raydel; and third, that the weekly payments for support of the child are excessive.

The claims in the cross-appeal in case No. 22,823 are also made claims of error in the appeal taken by C. Greif Raíble, numbered 22,824.

The first and principal matter to be examined is case No. 22,824, designated above as the paternity case. If error prejudicial to the substantial rights of C. Greif Raíble has intervened in such case, all questions which arise in case No. 22,823 (which we shall call the “money” case), obviously need not be considered.

C. Greif Raíble, as appellant in case No. 22,824, sets out 24 assignments of error. These assignments need not be listed hei’ein, for they may be set out under the following groupings: first, claimed errors relating to jurisdiction and the denial of due process; second, claimed errors in refusing the right to take depositions; third, claimed errors involving the admission and refusal to admit certain evidence and examination of witnesses; fourth, claimed errors in the special request to charge before argument and in the general charge; fifth, claimed error in refusing to award judgment to the defendant (C. Greif Raíble), and overruling the motion for a new trial; and sixth, claimed errors with respect to the award of support.

We first turn our attention to the question of jurisdiction. The case, it must be remembered, did not originate in the Court of Common Pleas. The preliminary proceedings and the way in which C. Greif Raíble got into the Common Pleas Court, was through the process originally begun in the justice of the peace court.

It seems almost superfluous to say that at common law a child born out of lawful wedlock was “filius nullius”—the son of nobody. Such a child was, of course, the child of its mother, but no man could be charged with its support. This was the law in Ohio until in 1805, when the Ohio legislature enacted laws to require the one who had fathered such child to provide a measure of support to the child. (The act of 1805—3 Ohio Laws 167—indicates that a prior act was in effect as passed in 1800, which was before the state was admitted to the Union.)

At the time the complaint was filed herein before justice of the peace Myron J. Penty, Jr., the statutes then in effect (§12110, et seq, GC) were found in Division VIII (Quasi- Criminal Actions) of Title IV (Procedure in Common Pleas Court) of Part Third (Remedial). Thereafter, effective August 28, 1951, matters relating to bastardy (§8006-1, et seq, GC) were found in Chapter 6 (Bastardy) of Title VI (Domestic Relations) of Part Second (Civil). Now such matters are found in §3111.01, et seq, R. C~

The transcript of docket and journal entries of the Court of Common Pleas shows that, on October 22, 1951, the transcript from the docket of the justice of the peace was filed in the Court of Common Pleas.

On December 1, 1951, Alice E. Raydel filed a motion to advance the case for hearing; on December 13, 1951, C. Greif Raible filed a motion, asking the trial court to order blood grouping tests of Alice E. Raydel, the child, and himself.

From the date when the transcript of the docket of the justice of the peace was filed in the Court of Common Pleas, and the first objection to jurisdiction was advanced by C. Greif Raible, twenty or more motions, briefs, journal entries, and other papers, were filed in these proceedings. Hearings were had on many of such matters so filed. Some of the papers so filed were in behalf of C. Greif Raible, and the others in behalf of Alice E. Raydel.

On March 7, 1952, the brief of C. Greif Raible, filed that day in opposition to the motion of Alice E. Raydel, to require C. Greif Raible to appear in court on a date certain and enter his plea, said that C. Greif Raible had “entered his appearance in this case,” and further that, in accord with §8006-14 GC (formerly §12121 GC), the appearance docket of the Court of Common Pleas of Cuyahoga County “will show that the defendant (C. Greif Raible) has appeared by counsel duly appointed by the defendant.”

Sec. 10223 GC (now §1909.01 R. C.), said:

“Unless otherwise directed by law, the jurisdiction of justices of the peace in civil cases, is limited to the township wherein they have been elected, and wherein they reside. No justice of the peace shall hold court outside of the limits of the township for which he was elected.”

If “jurisdiction,” as used in this section, means the right and power of a justice of the peace to hear and determine a cause, only when physically within the geographical limits of his township, then the meaning of such section is clear, and the act of the justice of the peace in this matter is void.

In the case of Loftus v. Pennsylvania Rd. Co., 107 Oh St 352, at p. 357, the court, in discussing the word “jurisdiction,” said:

“Jurisdiction may exist to hear and determine causes of a certain class, and yet that jurisdiction may not be permitted to attach to certain cases by reason of limitations of venue. Venue signifies the geographic division where a cause shall be tried. Both jurisdiction and venue depend upon constitutional and statutory provisions. While certain provisions may give the courts power to hear certain causes, other provisions may limit the rights of certain parties to avail themselves of that jurisdiction.”

We recognize that, as stated in the early case of McCleary v. McLain, 2 Oh St 369 at p. 371:

“The legislature has wisely limited the civil jurisdiction of justices’ courts to the subjects mentioned in the ‘act defining the powers and duties of justices ***’***; and any attempt by such court to exercise judicial authority, not therein delegated, or in a manner different from that prescribed, is utterly void.”

See also, State, ex rel. Maag, Jr., v. Schuller, etc., 154 Oh St 465.

In the recent case of State, ex rel. Gill, v. Volz, 156 Oh St 60, at p. 73, the court said:

“This court, in view of the historical background of the legislation relating to this matter and in view of what appears to be the long settled practice of the inferior courts of this state, is constrained to hold that a bastardy proceeding is essentially a civil action and that the trial court committed no error in the instant case in accepting the verdict of guilty concurred in by nine members of the jury.”

While we recognize the authority of the cases cited above, none of them decides the problem now before this court, The facts herein are entirely different.

As we view the statute which limited the territory within which the jurisdiction of the justice of the peace could be exercised (§10223 GC), it was in the nature of a limitation of venue. A justice of the peace had and has jurisdiction in bastardy cases, and hence the subject matter of this action was properly a matter to be commenced in a justice of the peace court. (Sec. 12110 GC, now §3111.01 R. C.)

“* * * it has nevertheless long been a universal rule that an objection to the jurisdiction of the ‘subject-matter’ can not be waived; because while parties may voluntarily submit their persons to the jurisdiction of a court which has jurisdiction over the cause, they cannot confer power on the court as to the subject matter * * *.” Baltimore & Ohio Rd. Co. v. Hollengerger, 76 Oh St 177, at 182.

Jurisdiction over the person, however, may be waived by entry of appearance. O’Neal v. Blessing, 34 Oh St 33; Railroad Co. v. Morey, 47 Oh St 207. The provision in the statute, limiting the geographical area in which the justice of the peace may exercise his authority, is for the benefit of those sued, and is such a provision that may be waived by the defendant.

This is not a case where the justice of the peace does not have jurisdiction over the subject matter of the preliminary action brought by Alice E. Raydel, but is such a matter where the defendant is exempt from being required to submit to the jurisdiction of the court except within the township of such justice.

C. Greif Raible, by his appearance before justice of the peace Penty, his cross-examination of Alice E. Raydel, his request in the Court of Common Pleas for blood grouping tests, and by many other matters he submitted to the trial court, waived the privilege to except to the place where the justice of the peace conducted the preliminary hearing in this bastardy action.

The similarity between the matter before us and the case of Stark v. Treat, et al., 27 Ohio Circuit Decisions 282, is very striking. We believe such case to be persuasive in the instant action.

The trial court did not commit prejudicial error in determining that jurisdiction over C. Greif Raible had attached in the Court of Common Pleas.

We next pass to the claim that prejudicial error intervened when the trial court gave to the jury the following special written requested charge before argument:

“1. The court instructs the jury that the defendant is entitled to be a witness in this action for himself, and that the failure of the defendant to testify may be considered by you in determining the issue in this cause.”

In the case of Reams v. State, ex rel. Favors, 53 Oh Ap 19, at p. 22 (a bastardy action), the court said:

“Under the law, counsel have a right to comment on the failure of the defendant below to testify. The conduct of a party to a cause may be of importance in determining whether the ground of defense is honest and just, and anything from which such an inference can be drawn is cogent, and so it has become a well established rule that where evidence which would properly be part of the case is within the control of the party whose interest it would naturally be to produce it, and without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him.”

Some of the general rules with respect to the subject we now consider may be stated as follows:

1. No inference may be drawn by a jury because a party fails to call as a witness one who is equally available to the opposing party.

Hayden v. New York Rys. Co., 223 N: Y. 34; 134 N. E. 826; Branch v. Mashkin Freight Lines, 134 Conn. 278; 57 A. 2d 136; Century Indemnity Co. v. Arnold, 153 Fed. 2d 531.

2. Where a party fails to produce, or to explain the omission of, relevant evidence within his control, the jury may infer that such evidence would be unfavorable to him. (This rule does not apply generally where a party has failed to call a privileged witness or has invoked the privilege to exclude the testimony of such a witness.)

Robinson v. Doe, et al., 224 Mass. 319; 112 N. E. 1007; Griggs v. Saginaw & F. Ry. Co., 162 N. W. 960 (Mich.); Sherman v. Ross, 62 Pac. 2d 1151 (Colo.); Heck v. Henne, 238 Mich. 198; 213 N. W. 112; Bennett v. Duffle, 198 S. W. 2d 287 (Tenn.); Masterson v. Solomon, 89 N. Y. S. 2d 261; 275 App. Div. 861.

3. In a civil action, a jury may properly be instructed that the unexplained failure of a party to testify, concerning facts peculiarly within his knowledge, may give rise to an inference that, had he testified, his testimony would have been unfavorable to his cause.

Plunkett, et al v. Levengston, 258 Fed. 889; U. S. v. Grannis, 172 Fed. 2d 507; Rentschler v. Hall (Ind.), 69 N. E. 2d 619.

A general discussion, with citation of authorities, of the rules above set out may be found in 131 A. L. R. 706; 135 A. L. R. 1375; 1 Reid’s Branson Instructions to Juries, Sec. 73; II Wigmore on Evidence (Third Ed.), Sec. 289; 53 Am. Jur., Trial, Sec. 694; 31 C. J. S., Evidence, Sec. 156 (d).

A search of the authorities in Ohio discloses three cases bearing on the subject herein: Zane Development Syndicate v. Kurtz, 3 Abs 41; Akron Taxicab Co. v. Dawson, 12 Abs 316; and Hubbard, Admx., v. C. C. & C. Highway, Inc., 81 Oh Ap 445. These cases support the general rules above set out as being applicable especially to a party in presenting evidence in support of his own case.

We therefore determine herein that the trial judge did not commit error prejudicial to the substantial rights of C. Greif Raible in his charge to the jury.

As to the claim that C. Greif Raible was denied the right to take the deposition of Alice E. Raydel, the record before us shows that C. Greif Raible conducted a long and searching interrogation of Alice E. Raydel at the time the preliminary complaint in bastardy was heard before the justice of the peace, and that every effort on the part of the complainant to take the deposition of C. Greif Raible was effectually prevented by his remaining outside of the jurisdiction of the court, and, according to the judgment entry of the Common Pleas Court, beyond the borders of the United States. The order of the trial court staying the taking of the deposition of Alice E. Raydel was only to be effective until C. Greif Raible made himself available for a deposition. As we view this voluminous transcript of docket and journal entries, on the matter of the deposition, we are compelled to say no error prejudicial to the rights of C. Greif Raible is found in this claim.

We have examined all other claimed errors set out by the appellant, C. Greif Raible, in case No. 22,824 (except those relating to money matters, which we consider in the appeal No. 22,823), and find none prejudicial.

We pass now to a consideration of the claimed errors in what, for want of a better term, we call the “money case,” or the appeal and cross-appeal in case No. 22,823

In this appeal, Alice E. Raydel says that the trial court, as a result of a judgment entered February 11, 1953, awarded an inadequate amount of money for the expenses of pregnancy and childbirth and for support of the child, and failed to award her any sum of money for attorney fees and expense of the bastardy action.

The cross-appeal in this case (No. 22,823) claims that: the trial court erred in awarding support for the child from the date of its birth to the date of adjudication of paternity; the award of $50 per week for the support of the child is excessive; and, the trial court considered improper matters in making such award of support.

The trial court submitted the case to the jury on January 13. 1953, and the journal entry of judgment on such verdict was signed by the trial judge and filed with the clerk of courts for journalization on January 23, 1953. The transcript of docket and journal entries, and the verdict itself, shows that such verdict was filed with the clerk on January 16, 1953, although the bill of exceptions shows that, on January 15, 1953, the trial court held a hearing on the question of support, in the course of which it is clearly indicated that the jury returned a verdict of guilty prior to this hearing. (Counsel, in the bill of exceptions, state that the verdict was returned on January 14, 1953.) On January 23, 1953, a further hearing on matters relating to support was held. On 'January 26, 1953, another hearing on the same question came before the trial court. At this hearing, testimony was submitted to the trial judge, whose province it was, under the statute, to determine the money compensation involved in this type of case.

First, we shall consider the award of $1000 to Alice E. Raydel, for the expense of pregnancy and childbirth.

The record of testimony shows a payment of $200 to Dr. Stone, $210 to the nurse, Mrs. Barlow, plus her room and board, which Alice E. Raydel computed at $90; $88.50 to the •Doctor’s Hospital; and some other payments for medical expense, the amount of which could not be definitely ascertained. The total of all definite payments made by Alice E. Raydel, as a result of pregnancy and childbirth, do not equal the amount awarded. There was no award for the illness which Alice E. Raydel claims she suffered during pregnancy, except these indefinite payments for medical expense.

We do not find that the trial judge committed prejudicial error in this award of $1000.

Second, we now consider the question of awarding support for the child from the date of his birth to the date of adjudication of paternity.

The Ninth District Court of Appeals, in the unreported case of State of Ohio, ex rel Rosemary Fisher, v. Elmer H. Davis, Summit County case No. 3687, decided on November 6, 1944, held that a complainant in a bastardy action is entitled to recover support for the child from the date of birth to the date of adjudication. This principle was adopted and firmly established in the case of State, ex rel. Gill, v. Volz, 156 Oh St 60. The trial court did not commit prejudicial error in awarding support for the child of C. Greif Raible, from the date of birth to the date of adjudication of paternity.

Third, was the award of $50 per week for the support of the child grossly inadequate, unfair, and unrealistic? Did the trial court grant too large a sum for the support of this child, by taking into account facts that were not proper to consider in making such an award?

We must bear in mind that the case is before this court as an appeal on questions of law. We do not have the case to try de novo. It is not a question of what we would or would not do if we were sitting as the trial judge; instead, we have, among other questions, the problem of determining whether the judgment of the trial court is manifestly against the weight of the evidence; whether the trial judge committed an abuse of discretion herein; whether the trial judge committed prejudicial error in his application of the law; and the questions which ordinarily arise in an appeal on questions of law.

It is not our province to discuss the social implications which may arise if the child herein is reared as the son of a very wealthy man during youth, and at 18 years of age such support is suddenly ended and the child then forced to earn his own livelihood. What is the “moral duty” (as mentioned in the case of State, ex rel. Gill, v. Volz, supra), that the court shall enforce? This question is attractive and one which we might enjoy discussing, but do not deem it a proper matter in this opinion.

The trial judge conducted a lengthy hearing on the question of support and the ability of C. Greif Raible to pay any order the court would make. The defendant admitted he was worth more than one million dollars, that he had a net income, after taxes, of $35,000, which was obtained from salary as an officer of several corporations, and from a trust fund in which he was the principal beneficiary. The trial judge did not commit prejudicial error in refusing to accept a detailed analysis of the life, habits and financial standing of C. Greif Raible.

The Court of Common Pleas of Cuyahoga County has continuing jurisdiction to modify the order of support for this child when a proper showing is made in this case. State ex rel. Niven v. Tomblin, 82 Oh Ap 376.

The award of weekly support, which the trial court entered herein, is, under the circumstances, as shown by this record, not an unreasonable or arbitrary award. We find no abuse of judicial discretion in this phase of the case, and no error prejudicial to the rights of either party therein.

Fourth, Did the trial court err in refusing to award attorney fees to Alice E. Raydel for prosecution of this action?

Sec. 12123 GC, which was in effect at the time the complaint in bastardy was filed, said in part:

“* * * the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution * * *. The court shall require the reputed father to give security for the payment of the support, maintenance and necessary expenses of the complainant caused by the pregnancy and childbirth together with the cost of prosecution. If he neglects or refuses to give it, and pay the costs of prosecution, he shall be committed * *

Thereafter (effective August 28, 1951), §12123 GC was amended, and became §8006-17 GC, and the same phrase “costs of prosecution” set out above was carried into the newly numbered section of the statutes. (This section is now §3111.17 R. C., and the same phrase “costs of prosecution” is a part of the new Revised Code.)

The Supreme Court of Ohio did not, in the case of State, ex rel. Beebe v. Cowley, 116 Oh St 377, construe this phrase as permitting a court to award attorney fees as a part of the costs of prosecution. The court in that case said, at pgs. 381-382, in construing this exact language in a statute which was thereafter amended:

“We all agree that §12123 GC, does not authorize the trial court to charge the defendant with attorney fees as ‘costs of prosecution.’ It is well known that ‘costs of prosecution’ do not include attorney fees unless there be a statute explicitly making such a part of the costs. The statute under consideration does not do that, and, of course, they cannot be said to be necessary expenses caused by pregnancy and childbirth.”

This same principle was announced in the case of City of Euclid v. Vogelin, 152 Oh St 538, at pgs. 544-545.

The law on the subject of awarding attorney fees unless expressly authorized by statute is well settled, and any change from the rule so firmly established must be made by the proper authority.

The trial court committed no error prejudicial to the rights of Alice E. Ray del, when it refused to her an award of attorney fees.

We have examined all the claimed errors raised by the appellant and cross-appellant in case No. 22,823, and find none prejudicial.

We therefore determine that the judgment in case No. 22.823 should be affirmed, and that the judgment in case No. 22.824 should be affirmed.

Judgment in case No. 22,823 and in case No. 22,824 is affirmed. Exceptions. O. S. J.

DOYLE, PJ, GRIFFITH, J, concur.


author: By EARHART, J.

text:
    FRAZER, Plaintiff, v. SPORTSMAN et, Defendants.
    Common Pleas Court, Lawrence County.
    No. 33645.
    Decided June 10, 1954.
    Leon O. Wolfe, Columbus.
    James B. Collier, Ironton.
   OPINION

By EARHART, J.

This cause is before the Court on an appeal on questions of law from the decision of John S. Taylor, Referee from the Bureau of Unemployment Compensation rendered by said Referee on November 30, 1953 denying the appellant Harry Lawrence Frazer unemployment compensation.

The appellant claims that said Referee errored in his decision because appellant was not discharged for just cause, that appellant was discharged due to slack working conditions, and that said Referee unlawfully refused the Appellant compensation.

In the transcript of the testimony taken before the said Referee John S. Taylor, the appellant claimed that he had been required to work a double shift, had become tired and walked off the job which was tending bar at The Sportsman, and that he had then been discharged by Leo Dunworth, the owner of said establishment. Subsequent to the hearing, Leo Dunworth, owner of The Sportsman sent a letter to the Bureau claiming that the appellant had been laid off due to lack of business. This certainly is inconsistent with the testimony of the appellant before the Referee.

I note in the case of Craig v. Bureau of Unemployment Compensation, 148 Oh St 614, the following:

“The jurisdiction of the Courts on appeal from the Board of Review is limited by §1346-4 GC to a determination of whether the decision was ‘unlawful, unreasonable, or against the manifest weight of the evidence.’ If the decision is found to offend in any one of the respects named, the Court must reverse, vacate or modify.”

“The most that can be said contrary to the Referee’s conclusion is that reasonable minds might have reached different conclusions. We ara of the opinion that the conclusion of the Referee was the right one.”

This Court finds from a review of the above cited case and other authorities cited that the conclusion reached by the Referee cannot be said to be unlawful, unreasonable or against the manifest weight of the evidence, that there are no grounds upon which to reverse, modify or vacate the order of the Referee and the appeal is hereby dismissed.


author: By VAN BUREN, J.

text:
    SCHROEDER, Appellant, v. LaCHOY FOOD PRODUCTS DIVISION OF BEATRICE FOODS COMPANY, Appellee.
    Common Pleas Court, Fulton County.
    No. 13297.
    Decided December 2, 1953.
    James L. Frey, James W. Williamson, Wauseon, for appellant.
    C. William O’Neill, Atty. Genl., John W. Hardwick, Asst. Atty. Genl., Columbus, for Bureau of Unemployment Compensation.
   OPINION

By VAN BUREN, J.

In this case, claimant was in the employment of the LaChoy Products Division of the Beatrice Foods Company, Archbold, Ohio, for a period of time from 1946 until December, 1952.

Due to lack of work, claimant was separated from that employment on December 12, 1952.

She duly filed notice of claim for benefits with the Wauseon office of the Ohio Bureau of Unemployment Compensation, which claim was then questioned by a firm of so-called “consulting actuaries,” representing the Beatrice Foods Company.

Thereafter, a hearing was had before a referee of said bureau of Wauseon, Ohio, the county seat of Fulton county, at which hearing the testimony of claimant was taken. No other witness than claimant testified at this hearing. She was not represented by counsel at that time, although the LaChoy Food Products Division of the Beatrice Foods Company appeared and participated in the examination and cross-examination of claimant by a representative of said firm of so-called “consulting actuaries.”

In this respect, the case is almost identical with the facts and law appearing in the Nofzinger case, 52 O. O. 396, being numbered 13295 in the docket of the Fulton County Common Pleas Court, which was decided yesterday, December 2, 1953, and to which decision specific reference is herein made. The cases and statutes there quoted are similarly applicable and determinative of the issues in this case, in the opinion of the court.

Here, too, it was the clear, undisputed testimony of Mrs. Schroeder that she made regular efforts to find employment in the village of Archbold, Ohio after she was laid off by the LaChoy Products Division of the Beatrice Foods Company. Sometimes two possible places of work were visited each week, and, at times, she said: (Record page 7)

“I went as high as three places a week and asked for work.”

Mrs. Schroeder testified: (Record page 9)

“They (the Wauseon office of Unemployment Compensation) said that we should at least ask two people so I aimed each week to ask two and sometimes if it came in handy and I had to go to town, I would ask there again. A couple of times, I asked three places.”

It is clear from her testimony tnat she contacted, in the village of Archbold, local markets, bakeries, hardware stores, the A & P and Kroger grocery stores, and a number of other places. She said: (Record page 12)

“Our town is so small that there are just not too many places to ask, and if they required two, well you thought that was what you were to ask, really, and if you had two, you really did your duty, because there are not too many places in our small town at which a lady can work.” (Emphasis ours.)

Again, on page 18 of the record, the question was asked of claimant:

“Then you stated that the opportunities for employment are highly limited in the Archbold area?
“A. Yes.”

Claimant’s physical condition is something again, which appears in the record, and concerning which apparently no attention was paid by the referee or reviewing authorities.

Claimant testified: (Record page 12)

“Q. Now, I believe you said you have high blood pressure?
“A. I have. I lost the eyesight of one eye through it. That was when I was candling eggs at Eicher’s. That is when I lost the eyesight of one eye.”

Specific attention should be called, also, in the opinion of the court, to the examination of the claimant by the representative of the so-called “consulting' actuaries” employed by the LaChoy Products Division of the Beatrice Foods Company (Record page 19) asking about possible employment in towns or villages other than Archbold, Ohio. The question was asked:

“Now in reporting to the Wauseon office each week, were you interested in securing employment in Wauseon if it were available to you?
“A. Not too interested. I had been to a couple of factories the year before, and of course, the one factory up north won’t hire women of my age any more.”
“Q. How far is it from Archbold to Wauseon?
“A. Is it eighteen? I couldn’t exactly tell you.
“Q. Is it about twelve miles?
“A. I think it’s a little further than that, if I ain’t mistaken. See, in quite a few factories they have an age limit, and you can’t get in if you’re so old.” (Emphasis ours.)

It seems to the court that such inquiry is beyond the proper, legal scope of examination on a question of allowance or dis-allowance of benefits after lay-off from work.

Carried out a little further, claimant could have been asked about going to Toledo, or Detroit, or Chicago. The reductio ad absurdum of such an inquiry is that claimants in these cases would have to conduct their search for employment to other towns and cities until they actually found employment, in which event, no claims for benefits would ever be allowed.

For the above reasons and the reasons set forth in the Nofzinger case, cited supra, it is' the opinion of the court that the decision of the referee in this case, and the decision of the Board of Review of the Bureau of Unemployment Compensation affirming such decision of the referee, one member of said board having dissented, are unreasonable, unlawful and against the manifest weight of the evidence.

Judgment will be given for the appellant in this case.


author: By GRIFFITH, J.

text:
    COSTON, Plaintiff-Appellant, v. CARNEGIE-ILLINOIS STEEL CORPORATION, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3518.
    Decided September 30, 1952.
    Traxler & Beil, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellee.
   OPINION

By GRIFFITH, J.

The plaintiff-appellant was an employee of the Carnegie-Illinois Steel Corporation and on October 10,1947, he purchased a piece of pie from a Factory Stores restaurant located on the premises of the defendant. That while eating said pie he sustained internal injuries from glass which was in the pie. The restaurant was operated by the Factory Stores and the defendant did not participate in the operation or management of the restaurant. There was no rule or regulation that compelled employees of the defendant to patronize the restaurant. The defendant-appellee provided the restaurant for the benefit of the employees and it was permissible for the employees to patronize said restaurant and the same was encouraged by the defendant-appellee. The plaintiff-appellant was not furnished his meals as part of his contract of hire nor were his meals furnished to him at the restaurant at a discount. The facts further show that the plaintiff-appellant has no specific time off for his meals.

Jury was waived and cause tried by court. The common pleas court held that the record did not show that plaintiff’s disability was the result of an injury sustained in the course of or arising out of his employment.

Plaintiff has appealed to this court on questions of law.

In the case of Sebek v. Cleveland Graphite Bronze Co., 148 Oh St 693 (1947), the supreme court at page 697 said:—

“Accordingly, an injury occurs in the course of and arises out of the employment, within the meaning of the Workmen’s Compensation Act, if such injury followed as a natural incident of the work and as a result of exposure occasioned by the nature, conditions or surroundings of the employment.”

The rule laid down in the case of In re: Employers’ Liability Assur. Corporation, Limited, In re: McNicol et al, In re: Patterson, Wilde & Co., 215 Massachusetts 497 (102 N. E., 697), is:—

“An injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It arises ‘out of’ the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.”

The Ohio Supreme Court has approved this rule in the case of Walborn v. The General Fireproofing Co., 147 Oh St 507, 72 N. E. (2nd) 95.

We do not believe that the facts in the instant case satisfy this rule nor conform to its essential requirements. Plaintiff’s employment can not be said to be a contributing proximate cause of his injury. His injury can not be said to have followed as a natural incident to the work and to have been contemplated by a reasonable person familiar with the whole situation.

In the case of McNees v. The Cincinnati Street Railway Co., 152 Oh St 269, the court says:—

“Furthermore, majority opinions of this court have quoted, in support of their conclusions, the statement of Chief Justice Rugg in McNicol’s case, 215 Mass., 497, 102 N. E., 697, L. R. A. 1916A, 306, that ‘an injury which can not fairly be traced to the employment as a contributing proximate cause’ is excluded from being one which ‘arises out of’ the employment.

“This court has also indicated that an injury to be compensable must be ‘caused * * * in substantial part by the hazard of the employment’ (Industrial Commission v. Hampton, 123 Oh St 500, paragraph 3 of the syllabus, 176 N. E., 74); and three of the present members of this court concurred in a dissenting opinion stating that an injury will not be compensable when it ‘cannot fairly be traced to the employment as a substantial contributing cause.’ Outland v. Industrial Commission, 136 Oh St 488, 494, 26 N. E. (2d), 760.”

Plaintiff’s injury was not received in the course of or arising out of his employment with the Carnegie Illinois Steel Corporation, and accordingly judgment of the court of common pleas is affirmed.

Judgment affirmed.

PHILLIPS, J, concurs in the judgment.

NICHOLS, PJ, dissents.


author: By MILLER, J.:

text:
    GALLIHER, Plaintiff-Appellant, v. CAMPBELL et, Defendants-Appellees.
    Ohio Appeals, Second District, Clark County.
    No. 506.
    Decided April 15, 1954.

      Grace Fern Heck, William E. Bailey, Springfield, for plaintiff-appellant.
    Harshman, Young, Colvin & Alexander', Dayton, McKee & Schwer, Springfield, Ernest W. Kruse, Dayton, for defendantappellee, LeRoy G. Campbell.
    James M. Gorman, Springfield, for defendant-appellee, Lena R. Petschler.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the defendants upon the verdict of a jury. The action was one for damages alleged to have been. suffered by the plaintiff while a passenger in the automobile of the defendant, LeRoy G. Campbell. The guest statute is not involved herein for it is admitted that the plaintiff and Campbell had the same place of employment; that arrangements had been made wherein Campbell was to transport the plaintiff each day to her work in consideration of the plaintiff sharing in the expenses, which amounted to three dollars per week.

The record discloses that the defendant, Lena R. Petschler, was driving her automobile in a westerly direction on state route No. 4; that she was being followed by a second car and that the defendant Campbell was operating his automobile at a short distance behind the second car; that as the automobile of the defendant Petschler was proceeding down a small incline in the roadway near Enon, a right rear tire blew out causing her to lose control of her automobile. The defendant Campbell saw the car wobbling in the road ahead of him. He testified that he could have stopped at this time and avoided a collision, but on seeing the Petschler car veer to the right side of the road he pulled into the left lane and attempted to pass her. The second car pulled to the right of the roadway and succeeded in safely passing the Petschler car. The three cars were traveling at this time at a speed of approximately 45 miles per hour. The traffic was heavy in their direction, the road was wet and it was raining slightly or misting at the time of the accident.

The record discloses, however, that as the Campbell car was passing the Petschler car the latter swerved from the right side of the road striking the Campbell car at about the right front door. In order to do this it was necessary for the Petschler car to cross over into the left lane of traffic wherein the Campbell car was proceeding. As the result of this collision tire plaintiff was severely injured. The appellant is urging that since Campbell admitted he could have stopped when he first saw the Petschler car wobbling, instead of swerving into the left lane, that it was an admission of negligence on his part and that the jury should have been so instructed, leaving for its determination only the question of proximate cause. We are of the opinion that the Court properly refused the instruction; that it was a factual question for the jury to determine whether or not the defendant exercised ordinary care under all of the facts presented.

The record also reveals that the defendant, Petschler, testified that she had no knowledge her right rear tire was defective; that it had never been punctured or blown out before; that it appeared to her to be in good condition. A member of the State Highway Patrol who arrived after the accident testified that the tire appeared to be “worn.” At one time this defendant testified that she had never looked at the tire, but our examination of the record discloses that she made the statement with reference to the time of the accident, that she had never examined it after the accident. The appellant urges that because she made this statement that it was also an admission of negligence on her part and the jury should have been so instructed. We do not think the evidence warrants this conclusion and no error was committed by the Court in refusing to give the instruction.

The appellant next urges that the Court erred in instructing the jury that the defendant was required to exercise ordinary care for the safety of the plaintiff; that since she was a paying passenger she was entitled to the highest degree of care. This would be the rule were the defendant Campbell a common carrier, that is, one who holds himself out to the public as engaged in the business of transporting persons from place to place for compensation, offering his services to the public generally. But there was no proof that Campbell was a public carrier; hence the rule is not applicable. He was only a private carrier whose duties were the same as those of an ordinary bailee. 9 Amer. Jur. 661, p. 815. Since he was receiving compensation his obligations would be the same as •those of a bailee for hire and as such he would become liable only in case he failed to exercise ordinary care for th* safety of this plaintiff. 6 Amer. Jur. 248, page 351. In the following cases it was held that the driver of a motor vehicle owed his passenger a duty to exercise ordinary care for his safety: Sprenger v. Braker, 71 Oh Ap 349; Bolser v. Smalley, 89 Oh Ap 161. We find no error in this assignment.

It is also urged that the Court erred in giving the following special instructions before argument:

“1. The Court charges you that the mere fact that an accident occurred in which the plaintiff sustained injuries does not give the plaintiff the right to recover in this action.
“2. The Court instructs you that by the term ‘proximate cause’ is meant that cause which in a natural and continued sequence contributes to produce the result, without which said result would not have happened.
“3. The Court instructs you that by ‘negligence’ is meant the failure to use ordinary care and that by ‘ordinary care’ is meant such care as a reasonably prudent person would exercise under the same or similar circumstances.
“4. Before you can return a verdict for the plaintiff in this case against the defendant, LeRoy G. Campbell, alone, or against him jointly with the other defendant you must find by a preponderance of the evidence that he was negligent in one or more of the respects alleged in plaintiff’s amended petition and also that his negligence was a direct and proximate cause of the collision in which the plaintiff sustained the injuries of which she here complains. Therefore, if you find by a preponderance of the evidence that the defendant, Campbell, was not negligent, it will be your duty to return a verdict in favor of the 'defendant, Campbell. Likewise, if you find by a preponderance of the evidence that he was negligent in one or more of the respects alleged in the amended petition but that such negligence on his part was not a proximate cause of the collision it will be your duty to return a verdict in his favor.
“5. If you find by a preponderance of the evidence that the defendant, LeRoy G. Campbell, was confronted by an emergency not created by any fault of his own, he was required in such emergency to exercise only such care as a reasonably prudent person would exercise in the same or in a similar emergency and in making his choice of action he is only required to make such choice as a person of ordinary prudence placed in the same position might have made.
“6. If you find by a preponderance of the evidence that the assured clear distance ahead of the automobile of the defendant, LeRoy G. Campbell, was suddenly cut down and lessened, without his fault, by the entrance within such clear distance and into his path and line of travel of the automobile of the defendant, Lena Petschler, which rendered the defendant, Campbell, unable, in the exercise of ordinary care, to avoid colliding with the automobile of Lena Petschler, there was no violation on the part of the defendant, LeRoy Campbell, of the rule of law which prohibits the operation of a motor vehicle at a greater speed than will permit it to be brought to a stop within the assured clear distance ahead.”

We think these instructions contained correct statements of the law, and were applicable to the issues as made by the pleadings and proof; that each was complete in itself and so covered the case as not to give a one-sided view of some particular theory of counsel or to attach undue importance to some particular item of the evidence. The special charge must be complete in itself, but this does not require that it contain all of the law of the case. Curlis v. Brown, 9 Oh Ap 19. It merely requires that the proposition of law embodied in the requested charge should be complete on that subject. The request must be confined to a single proposition of law and the Court may refuse to give a charge which is a correct statement but contains more than one legal proposition. Central Casualty Co. v. Fleming, 22 Oh Ap 129.

The Court did not err for failing to give certain instructions as charged for the reason that no request was made for the same. In order to predicate error upon the omission of the Court to give a charge to the jury counsel must indicate clearly what he claims the law to be and what charge he desired the Court to give. Haley v. Dempsey, Exr., 14 Oh Ap 326.

It is further urged that the Court erred in giving the following charge after quoting from §§6307-20, -21, -27, -34, -38 GC:

“Whether either or both defendants were violating one or more of these state statutes at the time of the accident and whether or not such violation, if it took place, was a proximate cause of the accident and injuries are questions of faGt for the jury to determine from the evidence along with other questions of fact in the case, applying the instructions as to the law given you by the Court upon these and other points.”

The appellant is contending that, the aforesaid statutes were enacted for the safety of the public; that they set out specific requirements of conduct and that a violation of any one of them constitutes negligence per se. In Koppelman v. Springer, 157 Oh St 117, the Court held that a violation of the provisions of §6307-20 GC, does not constitute negligence per se Likewise, in Rice v. Hancock Mfg. Co., 87 Oh Ap 333, it was held that a violation of the terms of §6307-38 GC was not negligence per se where the “turn” is made at a point other than at an intersection. The turn in the case at bar was not made at an intersection; hence, the rule announced in the Hancock case, supra, applies.

Any failure to charge negligence per se with respect to violation of §6307-27 GC for the failure of Campbell to sound his horn in passing could not be prejudicial error for the reason that such a violation could not have been a proximate cause of the plaintiff’s injury. A signal on the part of Campbell to Mrs. Petschler could have meant nothing. There was no intention on her part to make a turn and certainly she could not have prevented the turn or the spin whether Campbell signalled her or whether he did not signal. Sec. 6307-34 GC is not specific as to the distance one car should follow another. It only provides a general rule of conduct, to wit, “the operator of a motor vehicle * * * shall not follow another vehicle * * * more closely than is reasonable and prudent,” etc., and its violation does not constitute negligence per se. Koppel-man v. Springer, supra. It should also be noted that no request was made for a further charge upon the aforesaid sections of the General Code. The charge was certainly proper as far as it went and any failure to charge on “negligence per se” would be an act of omission and not commission.

We find no error in charging on the “assured clear distance” statute and also in charging on “unavoidable accident” as they were clearly issues in the case made by the pleadings and the evidence.

We find no merit in the charge that the Court failed to separately state and define the issues and to make his charge complete. An examination of the same discloses that the Court consumed approximately twenty pages of the record in explaining the issues, the duties of the jurors, the law applicable and the conditions under which recovery may be had against either of the defendants. The case was well tried and fairly presented to the jury. An examination of the entire record discloses that the judgment is neither contrary to law nor against the manifest weight of the evidence.

We find none of the assigned errors well made and the judgment is affirmed.

WISEMAN, PJ, HORNBECK, J, concur.


author: By THE COURT:

text:
    GOLDITZ, Plaintiff-Appellee, v. BLANKENSHIP, Exr., Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 484.
    Decided April 13, 1954.
    Roger C. O’Donnell, Covington, Leo H. Faust, Troy, for plaintiff-appellee.
    Forrest L. Blankenship, Troy, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from a ruling of the Common Pleas Court on defendant’s motion to separately state and number the causes of action in the petition. Two errors are assigned, both seeking to test the correctness of the action of the court in overruling defendant’s motion.

At the outset we are met with the contention of appellee that the order from which the appeal is sought to be taken is not a final order and, therefore, not appealable. The test which is to be applied to the order is set out in so much of §2505.02 R. C. (§12223-2 GC), as could be applicable:

“(1) An order affecting a substantial right in an action which in effect determines the action and prevents a judgment, or (2) an order affecting a substantial right made in a special proceeding, * * *, is a final order * * (Numbering ours.)

If it may be said that the order here affects a substantial right of defendant, it was not made in a special proceeding; therefore the second part of the section may not be given application, and the first part must control as to which it is essential that the order in effect determines the action and prevents a judgment. Neither of these consequences follows by the order under consideration here.

It is not necessary to cite any supporting cases because the letter of the controlling statute is plain and requires no aid to its construction. The action here was not a final order and, therefore, the attempted appeal may not be accomplished.

Other errors are assigned, but because of the fstfet that there is no appeal before this Court we may not consider them.

The appeal will be dismissed.

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


author: By SKEEL, PJ.

text:
    AMERICAN FIDELITY & CASUALTY CO., Plaintiff-Appellee, v. BENNETT, d. b. a. BENNETT BRAKE SERVICE CO., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3446.
    Decided December 31, 1952.

      William E. Pfau, Youngstown, for plaintiff-appellee.
    Comus M. Beard, Youngstown, for defendant-appellant.
    (SKEEL, PJ, HURD, J, KOVACHY, J, of the 8th District sitting by designation in the 7th District.)
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment for the plaintiff entered upon the verdict of a jury. The action is one in negligence. The plaintiff was the insurer upon a policy of insurance issued to The McCullough Transfer Company of Youngstown, Ohio. On October 29, 1947, a truck owned by one James Cooper and then being operated on the business of the McCullough Transfer Company, was involved in a collision with an automobile at the intersection of State Routes 82 and 91 at Twinsburg, Ohio. The tractor-trailer of the plaintiff’s subrogor was being driven easterly over Route 82. The automobile with which it came into collision was being driven northerly over Route 91. The intersection is controlled by a signal light. As both vehicles came toward the intersection the light changed to green or “go” for north and south bound traffic, and red or “stop” for east and west bound traffic. The tractor-trailer then was about 200 feet from the traffic light. When about 100 feet away, it is the claim of plaintiff that the right front wheel of the tractor came off and rolled across the intersection, stopping some seventy-five feet east in the ditch. The driver testified his service brakes which had been working perfectly up and until then, were thus rendered useless, that he was thereafter unable to control the forward motion of the tractor-trailer with the other brakes in time to avoid proceeding through the intersection against the red light. The tractor struck the north bound automobile in the intersection, whereby the driver and his passenger (who was the owner of the automobile) were injured and the automobile damaged. Suit was filed by the owner of said automobile and also by the driver against the McCullough Transfer Company. Before trial, the plaintiff as insurer settled said cases for a total of $10,000 00, including legal fees and claims expense and was thereupon subrogated to the rights of the insured.

About eight weeks before the accident, the defendant was engaged to reline the brakes of the tractor. It is the claim of plaintiff that the sole proximate cause of the accident was the negligence of the defendant in failing to replace a cotter-pin in the right front wheel assembly after relining the brakes and that such negligent failure to replace the cotter-pin resulted in the wheel coming off, rendering the brakes useless.

The second amended answer of the defendant admitted that the plaintiff, by reason of a policy of insurance issued to the McCullough Transfer Company settled two actions for damages filed against the transfer company because of the accident déscribed in plaintiff’s petition. After the foregoing admissions, the first defense of the ■ defendant is a general denial. The second defense affirmatively alleges that the accident between the McCullough Transfer Company tractor-trailer and the automobile moving north on Route 91, was caused through the negligent conduct of a driver of the tractor, setting forth the specifications of negligence charged against the plaintiff’s subrogor in the petitions of the cases against the transfer company that were settled and alleged that said settlements were conclusive of plaintiff’s subrogor’s negligence and constituted an admission of the negligence of plaintiff’s subrogor.

The third defense alleges that in the accident for which settlements were made by plaintiff, the negligence of the driver of the tractor-trailer was the proximate, primary and active cause of the accident in that the driver of subrogor failed to maintain proper control of the tractor-trailer, failed to properly apply the brakes to enable him to stop within the assured clear distance ahead, and failed to abate the speed or divert the course of said tractor-trailer to avoid the accident, when, in the exercise of ordinary care, he should and could have done so and in negligently failing to inspect said tractor-trailer as required by PUCO and ICC permits of the transfer company.

The plaintiff filed a reply in which it denied all allegations of the answer, affirmative or otherwise, that are inconsistent with the allegations of plaintiff’s petition.

Upon trial, the court charged the jury fully upon the issues, in which it was stated that if the plaintiff has shown by the proper degree of proof that the accident was caused solely and directly by reason of defendant’s negligence in failing to replace a cotter-pin in the front wheel assembly, then plaintiff is entitled to recover, but if plaintiff has failed to show the defendant to have been thus negligent, which negligence proximately caused the accident, by the proper degree of proof, or having shown such circumstances, yet if it is also shown that the driver of the tractor-trailer was also negligent in the operation of the tractor-trailer, which negligence proximately contributed in causing the accident, then the jury should find for the defendant, because joint tort feasors cannot seek recovery one from the other. As was stated above, the verdict and judgment was for the plaintiff.

There is no claim in the record but that the settlements were fairly made after notice to the defendant, and a request that she defend the actions which she admittedly refused to do.

The defendant claims the following errors:

“1. The trial court erred in overruling defendant’s motion for judgment on the pleadings.
“2. The verdict of the jury is contrary to law.
“3. That the judgment for the plaintiff in this cause is not sustained by sufficient evidence and is contrary to the weight of the evidence.
“4. For error on the part of the trial court in overruling defendant’s motion for a directed verdict at the close of plaintiff’s evidence.
“5. For error on the part of the trial court in overruling defendant’s motion for a directed verdict at the conclusion of all the evidence.
“6. For' error on the part of the trial court in overruling defendant’s motion for judgment notwithstanding the verdict.
“7. For error on the part of the trial court in ruling out defendant’s second defense in her answer prior to closing argument.
“8. For error on the part of the trial court in its general charge to the jury after argument.”

The elaim that errors were committed by overruling defendant’s motion for judgment on the pleadings and for directed verdicts cannot be maintained. The allegations of the petition state a cause of action and there is sufficient credible evidence to support all of the necessary allegations that, when established, would entitle the plaintiff to judgment. The plaintiff’s subrogor employed defendant to make repairs to a tractor used in its business. The subrogor had the right to rely on the defendant to exercise reasonable care in the performance of the work necessary to make the repairs (Balridge v. Gas Co., 154 Oh St 453), and, while the plaintiff’s subrogor cannot be relieved of liability to third persons who are injured because the repairs were so negligently done as to make the operation of the tractor dangerous to other street users, on the ground that the negligence was that of an independent contractor, yet, as between them, by the allegations of the petition, if the work was negligently done the liability of the defendant by reason of such dangerous condition of the vehicle would be primary and that of the subrogor secondary. This must follow for the reason that from the character of the negligence charged in the petition and supporting • evidence, as disclosed by the record, which includes a complete description of the construction of the front wheel assembly, it is clear that reasonable inspection of the front wheel assembly by the subrogor, after the work had been done, would not have revealed the absence of the cotter-pin. The allegations of the petition and th6 evidence presented bring the case within the rules of law pronounced in the case of Indemnity Co. v. Schmitt, 143 Oh St 595. The case of Insurance Company v. Dingle-Clark Co., 142 Oh St 346, strongly relied upon by defendant is not in point as to the facts here presented, the principal distinction being that the action of Henzi went to judgment against the plaintiff’s subrogor, the Carnegie-IUinois Steel Co., wherein it was judicially determined that the Steel Company was actively negligent in failing to protect the safety of Henzi, the court holding in the fourth paragraph of the syllabus as follows:

“Where two persons, acting jointly or concurrently, have negligently injured a third person, for which injury both became liable in tort, to a third person, one of them who has made expenditures in discharge of their liability, is not entitled to contribution from the other.”

In the case now being considered, the lawsuits were settled before trial and there was no judicial determination of the alleged active negligence claimed against the subrogor by the third persons injured. A settlement of the lawsuits cannot be construed as an admission of the subrogor of the allegations of fact contained in the pleadings. Many considerations motivate a settlement other than the question of legal liability, as charged in the petition. In this case, for example, the fact that the subrogor considered himself secondarily liable because of the alleged negligence of defendant in omitting a cotter-pin from the right front wheel assembly, most probably was the reason for agreeing to a settlement.

When the court submitted this case to the jury, the question as to whether or not the active negligence on the part of plaintiff’s subrogor was the proximate cause, or a contributing proximate cause of the accident, or whether the defendant was negligent and such negligence, if established, was the sole proximate cause thereof, was properly and clearly submitted to the jury. A verdict for the plaintiff, based upon credible evidence, conclusively establishes that the defendant’s negligence was the sole proximate cause of the accident.

The judgment must, therefore, be affirmed. Exceptions allowed. Order see journal.

HURD, J, KOVACHY, J, concur.