Lamb v. Sebach

• Decision Date: 04 March 1935
• Citation: 3 N.E.2d 686,52 Ohio App. 362
• Parties: LAMB et al. v. SEBACH.
• Court: Ohio Court of Appeals

3 N.E.2d 686

52 Ohio App. 362

LAMB et al. v. SEBACH.

Court of Appeals of Ohio, Fifth District, Knox.

March 4, 1935

Syllabus by the Court .

1. Where plaintiff was not present when his case was called for trial, whereupon it was dismissed for want of prosecution his failure to appear is not an abandonment of the cause of action, but is a failure otherwise than upon the merits, and he may commence another action within one year under favor of section 11233, General Code.

2. In an action by a fireman to recover for personal injuries received in the course of his duty as a fireman while extinguishing a fire on defendant's premises on which gasoline storage tanks were maintained, it is proper to submit to the jury the question whether the affirmative act of defendants in restricting the size of the vents on certain gasoline tanks, below the known custom demanded for safety was the proximate cause of plaintiff's injuries.

Arnold, Wright, Purpus & Harlor and Earl F. Morris, all of Columbus, and Columbus Ewalt, of Mt. Vernon, for plaintiffs in error.

Harrison & Marshman, of Cleveland, for defendant in error.

SHERICK, Judge.

This is an action originally instituted by Henry Forest Sebach for damages against the members of the partnership known as the Knox Oil Company. At the time of injury the plaintiff Sebach, was engaged as a city fireman, and in the regular course of his duty was attending a fire upon the premises of the defendants. It is claimed that he was grievously injured by reason of a hidden and concealed danger concerning which he was given no notice or warning, and that this was the proximate cause of his injury. On the other hand, it was then and is now maintained by the defendants that as owners of the premises they were not obligated to so keep their property that the plaintiff, a mere licensee, would not be injured thereon, and that they owed him no duty further than to refrain from doing a willful or wanton act which might cause him injury, and, further, to give him reasonable warning of a dangerous condition created by the active negligence of the owners, of which they had knowledge and which was unknown to and not discoverable by Sebach. It is urged in defense that the proximate cause of injury was the likelihood of a gasoline storage tank explosion, which did occur; that this possibility was open and apparent to the plaintiff; and that he knowingly put himself in a place of danger and assumed the risk of that which did occur. It is also urged that the plaintiff or his chief was notified in time to withdraw from the dangerous situation. It should here be stated, however, that no claim is made of willful or wanton negligence, wherefore that question is not present in this controversy.

Upon submission of the cause to the jury a verdict was rendered in favor of the plaintiff fireman, and of this verdict and the judgment thereon entered the partners, as plaintiffs in error, now complain in several respects.

It appears that this cause has previously been twice tried, that in each instance the jury was in disagreement, and that when the cause was called for trial for a third time the plaintiff was not present. Thereupon the court dismissed the cause. The journal entry of dismissal as prepared by defendants' counsel recites in part that the action is hereby ‘ dismissed for failure to prosecute,’ at plaintiff's costs. Thereafter, under favor of section 11233, General Code, the plaintiff commenced the present action within the year. It is claimed by the partners that the plaintiff's failure to appear was an abandonment of the cause of action and not a failure otherwise than upon the merits of the cause, and that hence this action was barred by the statute, that their motion for dismissal should have been sustained, and that the trial court erred in overruling the same.

The ruling of the court thereon was right. Two significant facts conclusively establish the correctness of the court's ruling. It is beyond dispute that a court of record speaks only through its journal entries. If the entry of dismissal ‘ by the court’ did not speak the...