Dow Drug Co. v. Nieman
| Decision Date | 17 February 1936 |
| Citation | 13 N.E.2d 130,57 Ohio App. 190 |
| Parties | DOW DRUG CO. v. NIEMAN et al. |
| Court | Ohio Court of Appeals |
Bert H. Long and Milton M. Bloom, both of Cincinnati, for plaintiff in error.
Leo J Brumleve, Jr., of Cincinnati, for defendant in error Clem H Nieman.
Cohen Mack & Hurtig, of Cincinnati, for defendant in error S Frieder & Sons Co.
The defendant in error, Clem H. Nieman, was the plaintiff in the court of common pleas of Hamilton county, and the plaintiff in error, the Dow Drug Company, and the defendant in error, the S. Frieder & Sons Company, were defendants. The court of common pleas entered judgment in favor of Clem H. Nieman against the Dow Drug Company for $800, and against him in favor of the S. Frieder & Sons Company for its costs.
The Dow Drug Company filed this proceeding in error to secure a reversal of the judgment against it. Clem H. Nieman, by cross-petition in error, asks the court to reverse the judgment in favor of the S. Frieder & Sons Company.
The Dow Drug Company operated a retail drug store in the city of Cincinnati, at which it sold cigars. It purchased cigars at wholesale from the S. Frieder & Sons Company of the same city. One of the brands sold by the latter company to the former company was the ‘ Tiona.’ This trade-name was printed on the box in which the cigars were delivered, and immediately thereunder, and on the inside of the box, was the legend, ‘ Title and design owned by S. Frieder & Sons Company.’ At the time of delivery to the Dow Drug Company each cigar was wrapped in a cellophane wrapper.
The evidence of the S. Frieder & Sons Company was to the effect that it was not the manufacturer of these cigars, that they were manufactured in the Philippine Islands by the Helena Cigar Company, which wrapped, stamped, and packed them, and then shipped them to the warehouse of S. Frieder & Sons Company in Chicago, where they were stored until sold by it, whereupon they were shipped directly to its customers.
It is undisputed that Nieman purchased four cigars at the store of the Dow Drug Company, took them home with him, and on the same day proceeded to smoke one of them, when it exploded, causing substantial physical injury. These cigars were taken from a box of cigars that had been purchased by the Dow Drug Company from the S. Frieder & Sons Company. The evidence shows that the explosion was caused by a firecracker that was inside the cigar.
It is not claimed that there was any express warranty.
Two issues raised as to the regularity of the trial in certain procedural respects will be noticed before considering the substantial issue raised by this proceeding:
The record shows that the trial court instructed the jury on the subject of the forms of verdicts as follows:
‘ Forms of verdict will be submitted for your convenience, the first to be used in the event that you find in favor of the plaintiff against both defendants, reading as follows: * * *’
‘ The next form of verdict to be used in the event that you find in favor of the plaintiff against the defendant, The S. Frieder & Sons Company, reading * * *.’
In similar language the court instructed the jury with reference to forms furnished in the event it found in favor of the plaintiff against the Dow Drug Company, and in the event it found in favor of both defendants.
The jury returned its verdict on the form which it was instructed to use in the event it found in favor of the plaintiff against the Dow Drug Company.
The claim is that under these circumstances it cannot be said that the jury had passed upon the issues between Nieman and the S. Frieder & Sons Company. Midland Steel Products Co. v. Kehoe, 49 Ohio App. 338, 197 N.E. 246, is the principal reliance for this position. As we view it, that case did not involve that specific question. It is true that no formal verdict had been rendered against one defendant, but, whether under the circumstances it could be said that as a matter of law a verdict had been returned the record does not disclose. The parties and the trial court considered that a verdict had been returned as to both defendants, and, on the hearing of a motion to set it aside, the court granted the motion and directed a new trial. No judgment was entered. On that state of the record the defendant prosecuted error, claiming that the court had erred in overruling his motions for an instructed verdict at the close of the plaintiff's evidence and at the close of all the evidence. It will be seen that the question was not whether a verdict had been returned, but whether error could be prosecuted at that stage. The court recognized this, saying, 49 Ohio App. 338, at page 340, 197 N.E. 246, 247:‘ The serious question appearing upon the record is whether this proceeding in error will lie while the case is still pending in the court of common pleas against the Midland Steel Products Company’ ; and the court then held that it would not. In other words, it was the same question that was finally decided in Cincinnati Goodwill Industries v. Neuerman, 130 Ohio St. 334, 199 N.E. 178, adversely to the conclusion reached in Midland Steel Products Co. v. Kehoe, supra. The statements made in this latter case on the subject under consideration in the case at bar were made in arguendo, did not relate to an issue involved, and were therefore obiter dicta.
Likewise in Foos v. Teeters, 8 Ohio Laws Abs. 735, the same court expressed the same view by way of obiter dictum.
But in Strassner v. D'Atri, 44 Ohio App. 36, 184 N.E. 255, the issue was squarely raised and the court came to a contrary conclusion. In that case there were two defendants. The court submitted four forms of verdicts-one for the plaintiff against both defendants, one for the plaintiff against the defendant Harsh, one against the defendant D'Atri, and one for the defendants. The jury returned the verdict that it was to use in the event it found for the plaintiff against Harsh alone. The report does not show what instructions were given by the court as to the use to be made of these forms, but it is seen that the situation bears a strong similarity to that in this case. The court held that the jury had returned a verdict in favor of D'Atri, and speaking of Foos v. Teeters, supra, the court, 44 Ohio App. 36, at page 39, 184 N.E. 255, 256, said:
‘ It is contrary to the weight of authority. In other jurisdictions this matter has been determined many times, although so far as we know no other court in Ohio has ever passed upon the question, and counsel in open court say that a careful search by them fails to find any Ohio authorities, other than the one quoted.
‘ As stated, however, in many other jurisdictions the matter has been determined adversely to the contention of the plaintiff in error, and the rule has been stated to be that a verdict against but one defendant imports a finding in favor of a co-defendant.
This seems to us sound. No other reasonable inference could be drawn from the action of the jury in returning a verdict against one defendant and remaining silent as to the other when the case was properly submitted to the jury upon all the issues presented and the several verdicts were submitted to the jury for its consideration. We think that the trial court in the instant case was right in holding that the matter was res judicata, and sustaining the motion.’
The legal effect of the action of a jury depends not alone upon the exact language of the verdict. The circumstances under which the verdict was returned, and particularly the charge of the court, must be taken into consideration. The great preponderance of the decisions in other jurisdictions is to that effect. In Durst v. Southern Ry. Co., 161 S.C. 498, at pages 506 and 508,159 S.E. 844, 848, it is said:
‘ We think the construction of a verdict should, and can, depend upon, not only the language used by the jury, but other things occurring in the trial may be, and should be, properly regarded in determining what a jury intended to find. In a quite recent case, this court followed the latter suggested course. * * *
‘ Taking the language in which the verdict was couched in connection with the instructions as to the right of the jury to find against one or both of the defendants, and the instructions as to the forms of the verdict, it is our opinion that the verdict rendered in the first trial clearly indicated the intention of the jury to find against the railway company alone, and to acquit its codefendant, Williams, and to that extent we agree with the view of the appellants.’
To the same effect are Pittsburg C., C. & St. L. Ry. Co. v. Darlington's Adm'r, 129 Ky. 266, 111 S.W. 360; Wabash R. Co. v. Keeler, 127 Ill.App. 265; Cox v. Ellsworth, 97 Neb. 392, 150 N.W. 197; James v. Evans, 3 Cir., 149 F. 136.
We conclude that, in...
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