text:
    Booth, Appellee, v. Krouse, Appellant.
    (No. 1868
    Decided January 3, 1946.)

      Mr. Irvin Carl Delscamp, for appellee.

      Mr. Mason Douglas’s, for appellant.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of plaintiff and against defendant in the sum of $7,500 and costs. The action is for alienation of affections and upon issue joined the cause was submitted to a jury which returned a verdict for the plaintiff in the sum of $15,000. Upon motion for new trial, the trial judge found the verdict to be excessive and ordered a remittitur in the sum of $7,500 which the plaintiff accepted and judgment was entered on the verdict accordingly. The motion for new trial was overruled.

There are nine errors assigned but the brief of appellant is devoted to argument under three headings:

1. The judgment of the court.

2. The size of the verdict indicates passion and prejudice.

3. Misconduct of counsel for plaintiff in argument to the jury.

We will, in general, follow the order adopted in the brief of plaintiff in the consideration of the questions presented.

We state enough of the operative facts as are necessary to an appreciation of the legal questions involved in the errors discussed in the briefs and, particularly, as they reflect upon the correctness of the judgment and the amount thereof.

The Booths were married January 1, 1919. The husband was of an inventive turn of mind and throughout the years prior to his coming to Dayton had followed the course of many inventors, the results of which had not been especially lucrative. The plaintiff wife was more fortunately situated financially in that her parents were able to and at times during the Booths’ married life did assist them in meeting their necessary expenses. The Booths lived together at several places throughout the United States. For several years prior to the institution of the action herein they had lived at Glencoe, Illinois, in the family home of plaintiff’s parents whence they had moved upon the death of plaintiff’s mother. Plaintiff met her obligations as a wife and did the household work, including cleaning, washing, ironing and cooking, and at times eared for one or more boarders and roomers who were associated with the husband in his experimental ventures. At one time for several months there were three such persons living with the Booths. The husband converted into á shop a barn on the premises where he and plaintiff lived and completely equipped it with machinery. To accomplish this, plaintiff’s father assisted bim financially.

In July 1941, the husband took employment at Dayton, Ohio, as a consulting aeronautical engineer with United Aircraft Products Company and was in this employment at the time of the trial of the cause.

The record is comprehensive and voluminous respecting the experiences of the Booths during their married life, reflecting upon the husband’s affection for his wife, the conduct of defendant and the husband and his movements during the period after he came to Dayton.

It appears that defendant met the husband in July 1942, and thereafter until after the suit was instituted, they were together quite frequently, uninterrupted by any lengthy intervals. They met socially at homes of their friends, at the apartment of each, and took trips to cities and eating places outside Dayton. Eventually, in June 1943, Booth went to the home of the defendant to take his breakfast and dinner, which arrangement continued even after this suit and a divorce action were .instituted. Booth spent parts or all of many evenings at the home of defendant where she lived with her mother, and, when plaintiff made her last visit to Dayton, she saw her husband at the home of defendant several times.

The plaintiff was quite ill in October 1942 and a surgical operation was required. Her husband returned to their home, took her to the hospital in Chicago and attended her faithfully during her stay there and drove her to their home when she left. During this sickness and while Booth was in Chicago, defendant had occasion to make a business trip there with her employer, Elder. They were quartered at the Morrison hotel. On this occasion Booth visited defendant and dined with her and Elder and they arranged for her tó return to Dayton with Booth in his automobile, which she did. The record is fully developed as to this and other events and it may be fairly stated that there is no proof of any illicit relations between Booth and defendant. Booth told his wife nothing about his association with the defendant, or about her return to Dayton with him from Chicago, but wrote to plaintiff giving an account at variance with his testimony as to what actually occurred. Booth did not return to their home at Glencoe after his visit to Chicago when he and the defendant returned to Dayton by automobile.

On January 3, 1943, Booth notified his wife by letter that he no longer loved her and instructed her to get in touch with a friend to work out the “mechanics of the situation.” Plaintiff attempted a reconciliation by correspondence and later came to Dayton October 24, 1943, where she and her husband had several meetings, at the last of which, it is testified by plaintiff, Booth indicated a purpose to return to her. This intention was changed the next day after he had gone to the apartment of defendant and talked to her, after which he communicated his change of mind to plaintiff by telephone from the apartment of defendant.

Booth insists that when he first left his home to come to Dayton he no longer had affection for plaintiff, and that this condition had been cumulatively brought about by the refusal of plaintiff to bear children although it had been definitely agreed before their marriage this was to be done; by plaintiff’s continual complaint about her state of health, largely fanciful; by her assumption of a superior attitude toward him because he was an inventor and she had money; and by her attempted interference with his profession. All these defenses together with the claim of the plaintiff were developed at great length and the issues submitted to the jury.

Upon this appeal we must give that construction to the facts which is most favorable to the support of the verdict and judgment. So doing, we may draw many logical'inferences to refute Booth’s testimony as to his state of affection for his wife.

It reasonably appears that plaintiff had been a faithful, dependable, industrious and co-operative wife. The fact that she had access to money was the one factor which, no doubt, made it possible for Booth to carry on his experiments. Whether the failure to bear children was the fault of the plaintiff is in doubt. Whether she was obnoxious in stressing the difference in their financial resources does not project clearly from this record. More persuasive than all these permissible inferences is the tenor and purport of the letter itself, of January 3, 1943, which Booth wrote to his wife indicating a purpose to sever their marital relations. The letter contained this language:

"You may recall that a long time ago I promised that if ever the time came that I didn’t love you any more I would tell you so. I have taken a long time to think it over, and now knoiv that this is true.”

The italicized portion of' the letter permits the interpretation that the conclusion stated had been reached only at about the time the letter was written. Booth says that he put off the notification contained in the letter to his wife until it could be done with the least shock to her. But the time selected for the notice was not propitious because his wife was still suffering from the after effects of her operation.

The jury could reasonably have concluded that no one of the reasons assigned by the husband to account for the alienation of his affections for his wife satisfactorily explained it. When Booth was in attendance on his wife at the time of her hospitalization and when he made his last visit to her, there was no intimation of any change in his regard for her.

It is insisted that the association of Booth with the defendant was but social, and that there were no immoral relations and no evidence of love between them. The relation may have been nothing more than, as characterized by the defendant, “a lovely friendship.” Even so, the test as to the right of the plaintiff to recover is whether the defendant, by her conduct, intentionally accomplished the alienation of the affections of plaintiff’s husband. It is not necessary in Ohio to support the action that adulterous relations appear although it is in some states.

The court in its general charge, in stating the elements of the cause of action pleaded, permitted the jury to consider two aspects, whether the acts and conduct of the defendant (1) caused plaintiff to lose the affection of her husband or (2) prevented plaintiff from regaining her husband’s affection. The court throughout the charge carried this two-fold theory of the factual questions presented to the jury for consideration.

It is urged by the defendant that that portion of the charge which permitted the jury to consider whether the acts of the defendant prevented plaintiff from regaining her husband’s affection is a departure in the law, unsupported by a “single authoritative decision in the state of Ohio”; and that the “charge abrogates the general law in that: 1. It presumes' a prior cessation of affection. 2. It reaches to the elements of reestablishment of affections already lost * * etc.

An examination of the Ohio cases supports the claim of defendant that in no case has the trial court charged the jury in the manner and by the exact terms employed in the charge here under consideration.

It is commonly accepted that in an action for alienation of affections, if it appear that there is no affection to alienate, recovery may not be had. However, a little nicer analysis of'the factual situation is convincing that there is nothing revolutionary or unjustified by prior adjudication in the principle announced in the language of the charge.

Normally a husband and wife, so long as they maintain that relation, have affection one for the other and there is a presumption in law that such affection attends. 42 Corpus Juris Secundum, 332, Section 687. When, then, affection has been alienated, there is always the possibility so long as the relation of husband and wife exists that affection will be resumed and if a third person by malicious conduct prevents the return of that affection when it fairly appears that it would have occurred but for such acts, that person must respond in damages.

This case presents factually the question of the correctness of the charge because of the testimony of the plaintiff that her husband, who prior to that time may have had his affection for her alienated by the defendant, after a conference had agreed with his wife to a resumption of the normal marriage relation but that this attitude of mind was changed after he had met with and talked to the defendant relative to the subject matter of the conference.

In 3 Restatement of Torts, 488, Section 691, the principle is recognized that an element of proof is not only the inducing of a spouse to separate from the other spouse but also the inducing of the spouse not to return to the other. The charge as given, in our judgment, did not project into the case any new principle of law but merely separated into two parts that which would have been included in a general statement that if affection at any time existed between the husband and the plaintiff which by the malicious acts of the defendant was alienated, the plaintiff is entitled to recover.

It is next urged that the court erred in charging on punitive damages for the reason that there is no proof from which an inference may be properly drawn of actual malice on the part of the defendant.

The defendant testified that soon after she met Booth she learned that he was a married man but that he informed her that his wife was estranged from him. If this statement was made to defendant, it does not appear that she took any other steps to determine whether it was true, and in her association thereafter with Booth she must have relied upon that one assertion only. Legal malice may be assumed if it appears that by reason of the acts of the defendant the affections of the husband were alienated from the plaintiff. Westlake v. Westlake, 34 Ohio St., 621, 32 Am. Rep., 397; Brison v. McKellop, 41 Okla., 374, 138 P., 154, citing 3 Elliott on Evidence, Section 1643; Bresch v. Wolf, 243 Mich., 638, 220 N. W., 737; Allard v. LaPlain, 147 Wash., 497, 266 P., 688. This principle, as we understand it, is not challenged, but it is urged that to support an award of punitive damages actual or overt malice must appear and that there is no proof from which such an inference may be drawn.

We refer to one factual development which, in our judgment, will support an inference of express malice, vie., the conduct of the defendant after she must have known that the plaintiff was claiming that defendant was responsible for alienating the husband’s affections. This was made, known to the defendant during the final visit of plaintiff to Dayton, prior to and at the time of plaintiff’s institution of this action against her. Notwithstanding ■ this information, defendant chose to continue her association with Booth as it was carried on before. With such knowledge she was put on notice that at least it was the claim of the wife that defendant’s conduct had brought about the separation. When defendant persisted, the jury might properly have found that such conduct was malicious in tiñe sense required to justify an award of exemplary or punitive damages.

It is also objected that the court in its general charge, among other things, said:

"Or, if you find by a. preponderance or greater weight of the evidence that defendant’s acts and conduct, taken in conjunction with the acts and conduct of plaintiff or the acts and conduct of Harry Booth, or both, contributed to alienate the affections of Harry Booth from plaintiff, * * * then you must return a verdict for plaintiff in some amount * * (Emphasis ours.)

The language of the charge is supported by 42 Corpus Juris Secundum, 321, Section 669, and certain cases there cited, namely, Plourd v. Jarvis, 99 Me., 161, 58 A., 774; Sullivan v. Valiquette, 66 Colo., 170, 180 P., 91; Dunbier v. Mengedoht, 119 Neb., 706, 230 N. W., 669.

It is urged that the verdict was stimulated by passion and prejudice; that the jury was made up of women only; and that the charge of the court on punitive damages incited the full prejudice of the jury.

We have discussed the propriety of the charge as to punitive damages. The fact that the jury was comprised of women does not in itself suggest susceptibility to passion and prejudice. A reading of this record is convincing that the trial was conducted by the court and counsel in an orderly and well poised manner and the witnesses, to a marked degree, testified without acrimony or feeling. Nothing occurred in the presence of the jury, which we may properly consider, that would support the claim that it acted under the influence of passion or prejudice unless it would be the amount of the verdict itself and we do not so find.

The constituent elements of damage to the plaintiff, i. e., loss of affections, society and companionship, mental suffering and distress, were of considerable magnitude. The first steady lucrative employment which Booth ever held, the jury may have believed, was made possible only by the assistance, financial and otherwise, which his wife gave him during 25 years of their married life. The Booths had reached the place when the wife could have fully enjoyed the consortium of her husband. If, by the act of the defendant, this assurance was taken from the plaintiff, she lost much of worth and the jury had the right to exercise its discretion as to its fair value in money. We cannot say that the verdict in the sum originally returned of itself indicated passion and prejudice and certainly the amount of the judgment as entered does not require such conclusion.

It is urged that in argument to the jury, counsel for the plaintiff stated that the plaintiff would have been justified in killing the defendant and Booth. This alleged statement does not appear in the bill of exceptions and is attempted to be brought into the record only by affidavit in support of a ground of the motion for new trial. To consider these affidavits would be going beyond the record, which we are not permitted to do. Simes v. Dayton-Xenia Ry. Co., 24 Ohio Law Abs., 595, 36 N. E. (2d), 517.

It is assigned that the court erred in the admission of evidence objected to by defendant, and attention, is particularly directed to the admission in the testimony of plaintiff of the statement that her husband made to her on the morning he telephoned to her from defendant’s apartment. This statement was to the effect that the husband said to his wife, “Ruth [the defendant] says she loves me too much and-1 can’t give her up.” It is urged that this did not show the state of mind of the husband but was merely a hearsay statement of what defendant was purported to have said and was clearly incompetent. An examination of the record discloses that when the question was propounded which would have elicited th.e testimony heretofore stated, objection was interposed and the court refused to permit the question to be answered. The answer was then proffered for the record only. Later when Booth on cross-examination and plaintiff on rebuttal were interrogated respecting the claimed statement of defendant, they were permitted to answer without objection.

Upon careful consideration of all the errors assigned, we find none established which prejudiced the defendant in her right to a fair trial of the issues joined.

The judgment will be affirmed.

Judgment affirmed.

Miller and Wiseman, JJ., concur.


source: Caselaw Access Project

author: Washburn, P. J.

license: Public Domain

text:
    Robertson, Appellee, v. The City Produce & Commission Co., Appellant.

      (No. 1118
    Decided November 30, 1945.)

      Mr. D. W. Myers and Messrs. Qlitsch é Stack, for appellee.

      Mr. Frank E. Stevens and Messrs. Duncan & Thomas, for appellant.
   Washburn, P. J.

John H. Robertson, an accountant, while performing professional services on the premises of his client, The City Produce & Commission Company, in the city of Lorain, was injured by falling over a small, low-platform hand truck, used by said company in the prosecution of its business.

He suffered said injuries as he stepped from the office into a narrow hallway, which, according to the evidence, was poorly lighted.

He sued the company to recover damages for such injuries.

After issues were joined and the company had taken the deposition of Robertson, he died from causes not connected with his injuries, and the action was revived in the name of his wife, who was the administratrix of his estate.

The injuries were severe, and were of a permanent nature.

The jury trial resulted in a verdict against the company for $1,500 damages; and the jury, in answer to interrogatories submitted at the request of the company, found that Robertson did not look to see what was ahead of him before he stepped from the office into the hallway, and that, if he had looked to see what was ahead of him before he stepped into the hallway, he would have seen the truck in front of him.

The company filed a motion for judgment in its favor notwithstanding the verdict, and a separate motion for a judgment on the special findings of fact; and then later, but within time, a motion for a new trial. The trial court denied all of the motions, and rendered judgment on the verdict.

The case was submitted upon the evidence adduced by the plaintiff, except for some photographs introduced by the company.

One claim of counsel for the company is that there was no evidence of negligence on the part of the company. We hold that they are mistaken in that claim. We regard this as a case where active negligence on the part of the company was proved.

Another claim is that' the court errecf in not granting a motion of the company for a judgment upon the answers to the interrogatories.

Such judgment could not have been properly entered upon said special findings unless the facts therein found justified a verdict for the company and such facts were clearly irreconcilable with the general verdict; if the answers to the questions submitted to the jury were, upon any reasonable hypothesis, consistent with the general verdict, the general verdict cannot be disregarded and a ‘judgment entered upon the special fundings of the jury.

In determining whether the special findings of the jury are inconsistent with the general verdict, the trial court is not permitted to take into consideration the evidence in the case, and in determining whether the trial court committed error in granting or refusing to grant said motion, this court is not permitted to look to the evidence in the case. In determining whether the trial court was in error in this respect, we can consider only the issues made by the pleadings, the general verdict and the special findings.

The ultimate fact that would justify the granting of the motion for judgment on the findings is that Robertson was guilty of negligence by not looking to see what was ahead of him before he stepped from the office into the hallway. The jury did not so find, because they rendered a judgment in favor of Robertson, which, under the charge of the court, they could not have done if they had found he was guilty of contributory negligence. The matter is therefore resolved into the question of whether or not Robertson, in doing what the interrogatories found he did do, was guilty of negligence as a matter of law.

In support of the claim that he was, counsel for the company argue that one who, in an office building, opens a door and walks into the hall, is guilty of negligence as a matter of law if he fails to look down to the floor in front of him — and this, too, regardless of any knowledge on his part, or any circumstances which should lead him to suppose or expect, that there would or might be an obstruction in his path.

We do not agree with that statement. The mere facts revealed by the answers to said two questions, unaided by any evidence of other facts and surrounding circumstances, do not indicate negligence to such a degre.e of certainty as to justify the conclusion that reasonable minds could reach no other conclusion than that of negligence.

We'find that the court did not err in refusing to render judgment on the interrogatories in favor of the company. The jury in this case, notwithstanding the answers they made to the interrogatories, determined that the circumstances were such that Robertson’s failure to look was not negligence.

Error is also claimed because the court failed to grant the company’s motion for a judgment notwithstanding the verdict.

In justification of the general verdict, the evidence in the record is available for consideration, and from that we learn that the only evidence as to the conduct of Robertson was furnished by a reading of the deposition of Robertson, taken by the company; and his evidence was plain and understandable, and there was no evidence to the contrary. He testified that when he came back to the office that noon, there was one of the low trucks that were used in the business of the company standing in the hall between the opposite hall doors of the two offices, and close to the hall door to the office which he was using, and that he put that truck out of the hallway and into the large storeroom, and that he then entered his office, and then, after about three to five minutes, he had occasion to cross the narrow hallway, which had no artificial light and which was poorly lighted by natural light, and that he opened the door and looked ahead of him, but that he did not look down to the floor, and that he fell over,the low track and was injured.

After a consideration of the evidence, a substantial part of which has been narrated, we are of the opinion that whether or not Robertson was negligent was a question concerning which reasonable minds could reach different conclusions, and for that reason the court did not commit prejudicial error in overruling the motion filed by the company for judgment notwithstanding the verdict.

We are also of the opinion that the findings of the jury that the company was negligent and that Robertson-was not guilty of contributory negligence are not manifestly against the weight of the evidence, and that the court did not commit error in rendering judgment on the verdict.

Judgment affirmed.

Doyle and Stevens, JJ., concur.


author: Miller, J.

text:
    City of Columbus, Appellee, v. Lewis, Appellant.
    (No. 3852
    Decided February 19, 1946.)

      Mr. J obi L. Davies, city attorney, and Mr. Glenn E. Kemp, for appellee.

      Mr. E. E. Addison and Mr. Abraham Gertner, for appellant.
   Miller, J.

This matter comes before this court on appeal on questions of law from a judgment of the Municipal Court of Columbus, wherein the defendant was convicted of violating the provisions of Section 1089-1 of the Ordinances of the City of Columbus, Ohio. The ordinance provides as follows:

“Whoever shall within the city of Columbus have in his possession, or in his custody, or under his control, any ticket, check, writing, slip, paper or document, which represents or is a memorandum of, or is evidence of, or is intended to be used as a memorandum or evidence of, or which is designed or intended to be used in the process, of making, settling, paying, registering, evidencing, or recording, a number of shares or an interest in a lottery, ‘policy,’ or scheme of chance, by whatever name, style, or title denominated or known, whether located or to be drawn, paid, or carried on within or without this city, shall be guilty of a misdemeanor * *

The affidavit charges that the defendant ‘ ‘ did unlawfully have in his possession memorandum slips of a number of shares in a scheme of chance in violation of Section 1089-1, city ordinance.”

The record discloses that on the 31st day of March 1945, at about 11:00 a. m. the accused was driving a passenger automobile in the city of Columbus, Ohio. Two members of the vice squad of the Columbus Police Department noticed the defendant and followed him in their car for a short distance, when the defendant, realizing lie was being followed by tbe police, pulled his ear to tbe curb and aslced them wbat they wanted. Tbe officers bad no search warrant at tbe time, but tbe defendant told tbe officers to search him and bis car if they so desired, as be bad nothing illegal in bis possession. Tbe officers made tbe search and found concealed under tbe beater of tbe defendant’s car a package of slips which were introduced in evidence. Tbe defendant made a motion to suppress tbe evidence on tbe ground that it was illegally obtained. Tbe court overruled tbe defendant’s motion, and we think properly so, because tbe defendant waived bis constitutional rights by suggesting that tbe officers make tbe search.

At tbe close of tbe city’s case, tbe defendant moved for a dismissal for failure of proof, which motion was also overruled.

We are of the opinion that tbe court should have sustained this motion. A careful examination of tbe record discloses that tbe prosecution failed to prove that tbe package of paper writings removed from tbe defendant’s automobile contained any memoranda or writing in violation of Section 1089-1 of tbe ordinances of tbe city of Columbus, Ohio.

Tbe only evidence in tbe record with reference to this package is tbe following:

“Q. I will band you a bunch, or some paper, with some writing and numbers on it, wbat we call slips which I will ask tbe stenographer to mark. I will ask tbe stenographer to mark this city’s exhibit ‘A,’ and I will ask you, officer, if you can identify that exhibit. A. These are tbe number slips that I removed.

“Mr. Gertner: Object to tbe conclusion those are number slips and ask it be stricken from tbe record.

“Tbe Court: I will sustain tbe objection.

“Q. All right. Can you identify exhibit ‘A?’ A. It’s the paper I removed froin the heater hose in the defendant’s automobile.

“Q. What, if anything, are those paper slips in your hand? A. What is commonly known as a number slip.

“Mr. Gertner: Object to the conclusion and ask it be stricken from the record. What it is commonly known as is not the question. Your Honor, we are not going to convict this man on hearsay evidence or what people generally know, or what is commonly known as. The problem is, is he guilty of a specific offense prohibited by this specific ordinance. Common knowledge is immaterial and not admissible.

“The Court: Sustain the objection to that part of the answer designating that it is a number slip.”

That was all the evidence offered to establish the illegality of the city’s exhibit “A.”

In the case of City of Toledo v. Johnson, 72 Ohio App., 46, 50 N. E. (2d), 675, the court properly held:

“In order to sustain a conviction on a charge of unlawfully engaging ‘in a game of chance for money, to wit, number game,’ in violation of an ordinance making it unlawful to engage in a game of chance, there must be proof that a ‘number game’ is a game or scheme of chance or gambling, there being no such ‘game of chance’ recognized by statute or ordinance as a ‘number game.’ ”

We quote from the opinion of Overmyer, J., at pages 48 and 49:

“* * * No description of any kind is given of the ‘slips’ nor the purposes for which they are used nor that they have any connection with gambling. * * *

“The prosecution herein was laid under an ordinance which does not define what shall constitute a game of chance, and the affidavit merely alleged the defendant engaged ‘in a game of chance for money, to wit, a number game.’ No proof whatever was offered to show what a ‘number game’ is or that a number game ‘is a game of chance’ for money, and we are not aware that the courts of Ohio have waived the requirements of criminal law and procedure — whether it is in a gambling prosecution or for burglary, forgery or murder— that the essential elements of the crime charged must be proven. The attack here made is not upon the sufficiency of the affidavit to charge an offense but upon the taking of judicial notice by the lower courts of the guilt of defendant of the essential elements of the offense charged, in lieu of proof thereof.

“* * * we have not reached that point where it is unnecessary to prove in a criminal case that a man has committed a crime in order to convict him of it, as against a plea of ‘not guilty.’ ”

We find there is no evidence that the slips in city’s “exhibit A” are slips which represent, or are memoranda of, or are evidence of, or are intended to be used in the'process of, making, settling, paying, registering, evidencing or recording a scheme of chance.

There was nothing upon which to predicate the finding of guilt except the conclusions of the witness, which the trial court had ruled to be improper and had ordered stricken from the record.

The presumption of the innocence of the defendant was not overcome by the evidence, and the motion to dismiss should have been sustained.

The judgment is reversed, the defendant is ordered discharged and the cause remanded for execution.

Judgment reversed.

Hornbeck, P. J., and Wiseman, J., concur.


author: Hornbeck, P. J.

text:
    Bilenkin, Appellee, v. Bilenkin, Appellant.
    (No. 1873
    Decided November 26, 1945.)

      Messrs. Landis, Ferguson, Bieser & Greer, for appellee.

      Messrs. Jacobson d> Durst, for appellant.
   Hornbeck, P. J.

This is an appeal on questions of law from an order of the Court of Common Pleas, Montgomery county, Division of Domestic Relations, which found that the defendant was in contempt of court for failure to observe a former order of the court requiring the payment of $50 a month for the support of his child, Barbara Bilenkin, the arrearage at the time of the filing of the charge being in excess of $500. The order further recited the overruling of a motion of the defendant to vacate the former order of the court relative to payments to be made by the defendant to the plaintiff for the support of Barbara Bilenkin and a motion of defendant for an order restraining the plaintiff from registering Barbara Bilenkin under the name of Barbara Salesky in school, Sunday school or any other place, etc.

The parties in this cause were formerly husband and wife and a decree of divorce was awarded to the plaintiff for the aggression of the defendant. The custody of the two minor children of the parties was awarded to the plaintiff and at the time of the entering of the decree of divorce the court approved and adopted an agreement wherein the defendant agreed to pay to the plaintiff for the support of each of the children, Barbara and Gilbert, Jr., the sum of $50 per month. Prior to the institution of the contempt proceedings, Gilbert, Jr., the son, having reached the age of ten years had elected to choose his father as his guardian and was living with his father.

The plaintiff married Bernard L. Salesky who with the plaintiff and Barbara was living at Elkins Park, Pennsylvania, a suburb of Philadelphia.

The contempt charge asserted that the defendant was in arrears in payment of support money for Barbara in the sum of $500.

The defendant did not orally or in writing enter any formal denial of the charge of contempt, but at about the time of the hearing on the contempt charge filed two motions. The first was for vacation of the support order for two reasons, first, that “plaintiff has deliberately changed the name of Barbara Bilenkin to Barbara Salesky” and, second, that plaintiff had deliberately violated the court order requiring her to deliver the child into the possession of the defendant. The second motion, with which was incorporated an affidavit supporting the second ground of the first motion, prayed the court for an order restraining plaintiff from registering such child as Barbara Salesky either in the school, Sunday school, or at any other place. The court determined the contempt charge and the motions as hereinbefore stated and such action is made the subject of this appeal.

The inherent power of a court as well as statutory authority recognizes “disobedience of * * * a * * * order, rule, judgment, or command of a court” as contempt. Section 12137, General Code.

The first motion was not a defense to the contempt charge unless the court vacated the support order. This the court had no authority to do, it not being claimed that the order was made without jurisdiction or induced by fraud or mistake. Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212. That case holds that where a contract for support for minor child entered into by the parties to a divorce proceeding “is specifically approved by the court and made a part of the decree,” it “may not, in the absence of fraud or mistake, be subsequently modified by the court so as to lessen the amount of support for such minor child.” A fortiori, if the court may not lessen the amount in such contract, it may not determine the contract to be invalid.

Neither of the two grounds of the motion was a defense to the contempt charge because manifestly neither affected the material question involved, namely, whether the defendant had violated an order of the court. Nor was a citation requested because of the claimed violation of the visitation order.

Of course, the fact that the court could not modify or vacate the support decree because it was an embodiment of the contract between the parties would not have prevented the finding that the defendant was not in contempt because to support the charge the court must have further found that the violation was wilful. But this element was not in dispute, nor is there anything to indicate that the defendant was unable to comply with the order.

The two grounds of the first motion were not defensive because the violation by the plaintiff of a court order, if true, afforded no justification for the defendant’s violation of an order directed to him. The court could, in determining the punishment of defendant by reason of his violation of the support order, have given consideration to the question whether the plaintiff also had violated an order, but the court found that the plaintiff had not violated any order. Neither ground of the motion to vacate afforded any reason to support a modification or a vacation of the support order even though the court had the power to vacate it.

The second motion sought an order restraining the plaintiff from using the name of Barbara Salesky for Barbara Bilenkin, the child of the parties. The plaintiff or her husband may not accomplish a change in the name of the child by her or his acts in registering such child in school, Sunday school and other places as Barbara Salesky. Under the facts appearing, we may not hold that the court committed prejudicial error in refusing to grant the relief sought.

Judge Nicholas in his written opinion which we have before us gives sufficient reasons, in our judgment, to support his refusal to compel the plaintiff to carry the child’s name as Barbara Bilenkin in school, Sunday school and other places. The trial judge points out that this practice of registering the minor daughter of the parties in the name of Salesky had been followed from the time the plaintiff had moved with her husband to their present residence. The home of the child is hundreds of miles removed from that of her father and it does not reasonably appear that he will be materially affected, one way or tbe other, by reason of the fact that his child carries the name of Salesky. On the other hand, it may be very embarrassing and the source of some humiliation to the daughter if at this time the plaintiff should be required to no longer carry the daughter’s name as heretofore known among her associates. Had the request been made of the court when the facts first came to the attention of the defendant, it would present a different and more difficult question. The ruling on the motion, when made, was not prejudicially erroneous.

The order appealed from will be affirmed.

Order affirmed.

Miller and Wiseman, JJ., concur.


text:
    The State of Ohio, Appellee, v. Ferguson, Appellant.
    (No. 3878
    Decided January 31, 1946.)

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. Henry L. Holden and Mr. Edmund B. Paxton, for appellee.

      Mr. Stanley U. Robinson, Jr., for appellant.
   Miller, J.

This is an appeal from a judgment of the Common Pleas Court of Franklin county, Ohio, wherein the defendant, Frank Ferguson, wa's convicted of rape without consent.

The record discloses that Betty Lou Bowman, the prosecuting witness, was a girl 16 years of age, had only recently, come to Columbus and was employed as a waitress at a restaurant. It was here that she met the defendant, who had just been released on parole from the Ohio Penitentiary. Prior to the night in question she had had several dates with the accused, which were very brief and consisted mostly of the defendant walking home with her. On the night of the alleged assault she met the defendant by appointment at her place of employment where he and a friend of his became engaged in a fight and he threatened to kill one of the persons with a butcher knife. Those persons escaped to a pool room across the street, where the defendant and his friend followed and continued the fight. Prior to going across the street, Betty Lou asked defendant to take her home, but he ordered her to go into the restaurant and await his return or it would be too bad for her. The defendant soon returned and the two, together with another couple, went to several restaurants downtown, and, after the other girl had left the party, the remaining three went to a suite of rooms in a hotel occupied by the friend of the defendant, who was with them. Here Betty Lou met-a Mr. and Mrs. Pierce, under very unusual circumstances,' Mrs. Pierce having come out of the bath room in the nude, talked with her and asked her if she was a “hustler.” Betty Lou said that soon after this the defendant pulled her into an adjoining room and there asked to have relations with her, which she refused. He then pulled and tore her clothing off and committed the acts complained of. She cried and resisted as much as she could, which was not enough. No one in the adjoining room came to her assistance. She said that she was afraid of defendant and in fear for her life. As soon as she was able to get away from him-she related her experiences to her employer, who reported the alleged offense to the police.

The defendant testified in his own behalf. At first, he denied having had relations with the girl, but later admitted the same and said that they were had with her consent.

The first assignment of error is that the court erred in admitting irrelevant and highly prejudicial evidence over the objection of the defendant. In this assignment of error the defendant objects to the testimony showing the conduct of the defendant on the night of the alleged rape, which conduct consisted of the fight begun in the restaurant and ended in the pool room across the street and of his drawing a butcher knife pn one of the employees in the restaurant. The defendant contends that this testimony had nothing to do with the alleged rape and was, therefore, not admissible. The prosecuting witness testified that she was raped through force and fear. The basis of this placing in fear was that the defendant did not permit her to exercise her freedom of going home, because he claimed that she might inform the police about his fight and get him in trouble. The acts of the defendant in drawing the butcher knife and threatening to kill a person showed to the prosecuting witness a vicious side of' the defendant and constituted reasonable grounds for her fear as to her own safety. Under this theory of the case, it is our opinion that the evidence offered was admissible.

The second assignment of error is that the court erred in excluding evidence over the objection of the defendant. The evidence excluded was offered by a record clerk at a hospital. The clerk brought in a record of the examination of Betty Lou Bowman, which was made the day following the alleged, assault. The examination of Dorothy Vanderberg was as follows:

“Q. Will you state your name to the court and jury? A. Dorothy Vanderberg.

“Q. And what is your occupation? A. I am record clerk at St. Francis Hospital.

“Q. Do you have the record with you of the examination that'was made of Betty Lou Bowman? A. I do.

“Q. And what'date and what time was that examination made? A. It was made on February 2, 1945, at 3:25 a. m.

“Q. Will you state to the jury what that examination revealed in the way of force or violence having been used? A. Well,-

“Mr. Holden: Wait a minute. I object to that.

“Q. Please state to the court and jury what that examination revealed.

“The Court: Wait a minute. Don’t answer that question as you have it there. You may make inquiry as to the competency of the record to ascertain how the record was made out.”

In response to this instruction of the court, counsel did nothing further to qualify the report. The report itself was not offered in evidence at any time. The question asked for a conclusion by the witness as to what the report showed. This was clearly inadmissible. The report itself would have been admissible if the proper foundation had been laid by showing who had made the report and that that person was not available to testify. We find no error in this assignment.

The third assignment of e'rror is that the court erred in overruling the motion of the defendant for a directed verdict after the plaintiff and defendant had both rested. This motion was properly overruled as there was sufficient evidence in the record tending to show the guilt of the accused to warrant submitting the question to the jury whose function it was to weigh, the evidence and determine the credibility of the witnesses. The defendant refers to the case of Frey v. State, 22 C. C. (N. S.), 607, 34 C. D., 78, but an examination of that case discloses a somewhat different state of facts. The element of fear or threats was not involved there, while in the instant case the prosecuting witness testified that she was in fear for her life. HoAvever, the Frey case is not authority for the proposition that a motion for a directed verdict in the instant case should have been sustained. The court there held that the evidence presented was not sufficient to sustain a conAdction and the verdict was against the manifest Aveight of the eAddence.

The fourth assignment of error is that there Avas misconduct of the prosecuting attorney in his argument to the jury. This argument is not included in the record and Ave have not sufficient facts to consider this assignment.

The fifth assignment of error is that the verdict of the jury Avas manifestly against the weight of the evidence and contrary thereto. Crimes of this nature are seldom committed in the presence of witnesses and it is generally the word of the prosecuting witness as against that of the defendant. It was the function of the jury to consider all the testimony and the circumstances surrounding the case to determine which of the witnesses was telling the truth. The jury was fully and properly instructed as to its duties and as to the laws of this state and its verdict shows that it was convinced beydnd a reasonable doubt of the guilt of the defendant. It is our conclusion that the verdict was in accord with the evidence and not against its manifest weight. The judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Wiseman, J., concur.


text:
    City of Columbus, Appellee, v. Meadley, Appellant.
    (No. 3863
    Decided March 5, 1946.)

      Mr. Glenn E. Kemp, police prosecutor, for appellee.

      Mr. E. E. Addison and Mr. Abraha-m Gertner, for appellant.
   Hornbeck, P. J.

Defendant was convicted and sentenced for possessing slips intended to be used as evidence of ownership of a number of shares in a scheme of chance in violation of Section 1089-1 of the Ordinances of the city of Columbus, Ohio.

We do not state the exact offense of which the defendant was convicted because neither the affidavit nor the specific finding of the judge is in the transcript of docket and journal entries nor is it found among the files in the case.

The appeal raises two questions:

The first is whether the admission of evidence obtained by unlawful search and seizure deprived the defendant of his liberty or property without due process, contrary to the provisions of the Fourteenth Amendment to the federal Constitution. We have heretofore, in the case of City of Columbus v. Smith, 78 Ohio App., 66, held against the contention of defendant as to this question on the authority of State v. Lindway, 131 Ohio St., 166, 2 N. E. (2d), 490, paragraphs four and five of the syllabus.

The second question arises from the claimed error that “the defendant was denied the right to know upon whose accusation he had been arrested and that the court erred in refusing to allow the officers to divulge the source of their information.”

No authorities are cited in support of this assignment of error. It is not specifically directed to any violation of statute or constitutional provision. The only provision of either of our constitutions which could be in contemplation by the claim of defendant is Section 10, Article I of the Ohio Constitution. The Sixth Amendment to the federal Constitution has application only to procedure in federal courts.

The applicable section of the Ohio Constitution, insofar as pertinent to the question here, provides:

“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf * * V’ (Emphasis ours.)

It does not appear that this provision was violated in any particular.

The gist of the claim of defendant is that he had the right to know the name of any person who informed the police or law-enforcing officials of the connection of the defendant with the offense for which he was prosecuted. We know of no such assured right.

It is claimed that the affidavit in the case did not meet essential requirements in particulars. The form of affidavit is provided by Section 13432-18, General Code. There is nothing in this case to indicate that the affiant was not qualified to make the affidavit, or any irregularity or. invalidity respecting it. We find no right of the defendant violated as claimed under the second error assigned.

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


text:
    The F. A. Requarth Co., Appellant, v. Holland et al., Appellees.
    (No. 1884
    Decided April 10, 1946.)

      Messrs. Shively, Shively & Shell, for appellant.

      Mr. George F. Holland, for appellees.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment for the defendants after a trial, a finding for defendants and the overruling of a motion for new trial.

The action ivas to set aside a deed from defendant Fred L. Holland to defendant Sarah V. Holland, his wife, as in contravention of Section 8618, General Code. Issue was drawn as to the correctness and, amount of the claim of plaintiff against the defendant husband, and as to his insolvency. It was denied that the deed was made without consideration, and it was the claim of defendants that a consideration had moved from the wife to her husband, at the time the property was deeded to them, jointly, and by later payments made by her for the benefit of the property.

Upon trial both defendants testified as to statements made and acts done by them during coverture-relative to the consideration for the deed. It does not appear whether a third person, competent to testify, was present when such statements were made and acts done.

Two errors are assigned, first, that the court should have set aside the deed as being in violation of Section 8618, G-eneral Code, and, second, that the court erred to the prejudice of the plaintiff in admitting the testimony hereinbefore mentioned.

It may be observed at the outset that if the second assignment is not well made the first fails by reason thereof because the testimony not only of defendant Fred L. Holland but also of his wife affords support for the conclusion of the trial judge that there was a valuable consideration moving from the wife to the husband for the deed to the property.

Defendants 'urge that the second error assigned is not properly presented for the reason that no objection was made to the admission of the testimony of defendants on the specific ground that it involved confidential communications between husband and wife. . An examination of the record at the time the testimony was taken lends much support to the claim of defendants.

We will not take up necessary space in this opinion to demonstrate that conclusion, but refer to the record which will disclose not only that the objections were made general in form but that they were not made at the place where the testimony was accepted. From the observations of court and counsel it might logically be concluded that no one at the time the objections were offered had in mind the application of the confidential-communications statute to the testimony sought to be elicited. Apparently the attention of all was directed to the question whether the testimony as to the payment of a part of the purchase price of the property in question when made would, if true, he a valuable consideration for the conveyance. It is difficult to understand why, if the testimony as tendered was to be questioned because of its confidential character, the uncertainty as to its admissibility was not cleared up, which could have been accomplished by one question as to the presence of a third person. However, there was a lapse of considerable time, and possibly some argument between the submission of the cause and its decision by the trial judge, and prior to such rendition the judge took cognizance of the objection as being directed to the specific question whether the testimony was admissible under the provisions of the privileged-communications statute, namely, Section 11494, G-eneral Code. In disposing of the question the trial judge said:

“Plaintiff’s objections appearing on pages 96, 97, 98 and 121 in reference to conversations between Fred Holland and his wife are overruled, for the reason that these witnesses were not interrogated concerning the presence or hearing of a third person competent to testify during the conversations, and unless the contrary is shown there is a presumption that a third person was present.”

We, therefore, consider and express opinion on the admissibility of the testimony to which objection is now made. Upon the narrow question presented by the state of the record, is a presumption to be indulged in favor of, or against, the admissibility of the testimony, the record being silent whether a third person was present when the conversations were had between 'husband and wife?

If the question were one of first impression we frankly admit we would have much difficulty with it. There is no authority from our court of last resort or' outside Ohio, which we have been able to find, that is directly in point. One Ohio case holds with the contention of defendants here, namely, Losh, Exr., v. Brunk, 18 Ohio App., 412. The second proposition of the syllabus of that case is:

“The admission of testimony of a divorced wife cannot be made the basis of an error on the ground that the matters testified to were privileged communications under the statute (Section. 11494, General Code), where the record fails to disclose that the communications were not made or the acts not done in the known presence of a third person competent to testify, and counsel for the complaining party at the trial made no objections on the ground that the communications and acts attempted to be proved were privileged. ’ ’

Judge Hamilton, writing the opinion, said at page 418, as a predicate for his conclusion:

“There is nothing in the record to show that the communications were not made or the acts not done in the known presence of a third person competent to be a witness.”

That case is directly in point and is the judgment of a court of eminence and is entitled to very serious consideration.

In the first paragraph of the syllabus of Westerman v. Westerman, 25 Ohio St., 500, the court had under consideration the Act of April 18, 1870 (67 Ohio Laws, 113), as related to the admissibility of communications made by husband or wife one to the other, which act was substantially the same as Section 11494, General Code. The court there treated that part of the section following, “unless the communication was made,” etc., as an exception to the earlier part of the section. This lends some support to the construction adopted by the court in Losh, Fxr., v. Brunk, supra.

Plaintiff cites 42 Ohio Jurisprudence, 251, 257, Sections 247, 253. The notation from Section 247, ibid., is-taken from the opinion of Upson, J., in Sessions v. Trevitt, 39 Ohio St., 259, at pages 267 and 268, and manifestly is sound but is not especially helpful on the narrow question presented. Nor is In re Wood (D. C.), 4 O. F. D., 684, 5 F., 443, from which the notation is taken in Section 253, supra.

In view of the fact that we have here a judgment presumed to be valid and 'that such authority as we have, meager though it is, supports the ruling of the trial judge upon the controverted question, we hold that the court did not err in admitting the testimony of the defendants.

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: By the Court.

text:
    Sawbrook Steel Castings Co., Appellee, v. United Steel Workers of America, C. I. O. Dist. 25, et al., Appellants.
    (No. 6665
    Decided June 24, 1946.)

      Mr. James G. Manley, Messrs. Gatch, Geisler & Kleinmann and Messrs. Rendigs & Fry, for appellee.

      Mr. J.. W. Brown and Mr. Kenneth D. Troy, for appellants.
   By the Court.

This is an appeal on questions of law from an order of the Court of Common Pleas of Hamilton county, adjudging Raymond G. Sowder guilty of contempt of court and, by way of punishment, committing him to the county jail of Hamilton county for 10 days and adjudging that he pay the costs of the contempt proceeding.

The correctness of the conviction is not raised by this appeal, and, for that reason, no bill of exceptions was filed showing what took place at the hearing of the contempt charge. The’ only question raised is whether the punishment exceeded the power of the court.

By Sections 11887 and 11888, General Code, which are found in Part Third, Title IV, Division VI, Chapter 4, a court granting an injunction is authorized to enforce obedience to an injunction or restraining order by punishing disobedience’ as a contempt. The penalty provided in Section 11888, General Code, may be a fine not exceeding $200, for the use of the county, a requirement that immediate restitution be made to the party injured and security for future obedience.

By Sections 12137 and 12142, General Code, found in Division VIII, Chapter 3 of the same Part and Title of the General Code, courts are authorized to impose a fine of not exceeding $500, or imprisonment of not more than 10 days or both for contempt for disobedience or resistance to any lawful writ, process, order, rule, judgment, or command.

It will be observed that the punishment imposed in this case combs within the power conferred by Section 12142, General Code (the penalty section), but is greater than that authorized by Section 11888, General Code.

At the hearing in this court it was contended on the one hand that the Common Pleas Court was limited to punishment for disobedience of an injunction by Section 11888, General Code, and, on the other hand, it was contended that the court had the power .to impose a greater punishment, as provided in Sem tion 12142, General Code. We have examined the law applicable to these contentions, but have reached the conclusion that this court is bound by the decision of the Supreme Court of Ohio in the case of Pilliod v. Searles, 115 Ohio St., 694, 155 N. E., 231. In that case, Pilliod was adjudged guilty of contempt, in that he violated an injunction and was ordered to pay a fine of $209, two-thirds of the costs and to be confined in Hie county jail for 10 days. The,testimony had been taken before a master commissioner, appointed by the court, and the right to do so was challenged by Pilliod, and that was the only subject discussed in the syllabus. However, at page 697, the court, in its opinion, said:

“Sections 11887 and 11888, prescribing the penalty for disobeying an order of injunction, are not exclusive, but are cumulative with Sections 12137, 12142 and 12147, General Code, relating to contempt and the punishment therefor.

“In this instance the record shows that the Court of Appeals found upon the evidence, which it considered and deemed competent when it came to consider the report of the testimony ordered taken by the commissioner, appointed at the request of both parties, that the said plaintiff in error had violated its order in injunction, and proceeded to enter what it deemed to be the proper judgment in the premises. Surely this power was not only inherent in the court, but was also within legislative enactment, and in this instance the only objection which the plaintiff in error urges is as to the manner of producing the testimony to, which he consented in open court in the first instance.”

An examination of the printed record discloses that Pilliod raised the issue of whether Section 12142, Greneral Code, applied to a contempt resulting from the violation of an injunction and counsel for defendant in error in his brief took notice of the claim, saying:

“Code Sections 11887 and 11888 are not inclusive but are cumulative with Code Sections 12137, 12142 and 12147 and these combined sections could be applied by the Court of Appeals in the contempt proceedings.

Hayes v. Hayes, 11 Ohio App., 10.

“I call attention to this rule of law for the reason that plaintiff-in-error claims in his brief that the court is limited to the provisions of Code Sections 12137, 12142 and 12147. His position is wrong.”

Furthermore, as the contention involved the jurisdiction and power of the court, it would have been considered even in the absence of any contention by either of the parties.

For these reasons, we are of the opinion that, while it is not contained in the syllabus in the Pilliocl case, supra, the statement in the opinion must be regarded as the deliberate conclusion of the court upon a point necessary to the disposition of the case before it.

We, therefore, follow that decision and affirm the judgment.

<Judgment a-flrmed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the opinion and judgment.


text:
    Colley, Appellant, v. Village of Englewood et al., Appellees.
    (No. 1887
    Decided September 10, 1946.)

      Mr. 7. C. Dels camp, for appellant.

      Mr. Webb 7?. Clark, for appellees.
   By the Court.

This cause is submitted on motion of the defendants, appellees herein, to dismiss the appeal for the reason that the plaintiff, appellant herein, is not the real party in interest.

The plaintiff, William E. Colley, instituted the action on September 28, 1944, on his own behalf and on behalf of all other persons similarly situated, and at that time was the owner of real estate situated in the village of Englewood. After the action was disposed of in the Court of Common Pleas and subsequent to taking an appeal to this court-, the plaintiff, on January 5, 1946, sold the property which he owned in the village of Englewood.

The defendants contend that the appeal should be dismissed by reason of the provisions of Section 11241, General Code, which, in part, provides that “an action must be prosecuted in the name of the real party in interest.” We are of the opinion that Section 11261, General Code, is controlling. It, in part, provides:

“On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him. ’ ’

We are of the opinion that this action may be prosecuted by the original party, and that the motion to dismiss the appeal should be overruled. We cite as authority in support of this position the cases of Cullen & Vaughn Co. v. Bender Co., 122 Ohio St., 82, 170 N. E., 633, 68 A. L. R., 1332; Lowry v. Anderson, 57 Ohio St., 179, 48 N. E., 810; Detroit & Ironton Rd. Co. v. Vogeley, 21 Ohio App., 88, 153 N. E., 86; and American Bonding Co. of Baltimore v. Second Natl. Bank of Cincinnati, 22 C. C. (N. S.), 177, 33 C. D., 502.

The motion to dismiss the appeal is hereby overruled.

Motion overruled.

IIornbeck, P. J., Wiseman and Miller, JJ., concur.


author: Conn, J.

text:
    Dodson, Appellee, v. The New England Trust Co., Trustee, Appellant, et al., Appellee.
    (No. 4151
    Decided May 6, 1946.)

      Messrs. Cotter & McFellin and Mr. Percy R. Taylor, for appellee Helen Wenner Dodson.

      Mr. Gerald P. Openlander, for appellant.

      Mr. George H. Lewis and Mr. Ralph Emery, for appellee Toledo Service Parking Company.
   Conn, J.

The plaintiff, an appellee herein, brought an action in the Court of Common Pleas against The New England Trust Company, defendant, appellant herein, as successor trustee, and Toledo Service Parking Company, Inc., defendant, an appellee herein, to recover damages which it is alleged she sustained when a defective sidewalk adjacent to the premises owned or occupied by defendants broke and gave way, whereby she was precipitated into an areaway underneath the alleged defective sidewalk and injured.

The jury returned a verdict in favor of plaintiff for $15,000 against the defendant-appellant and judgment was entered thereon. An appeal to this court was taken by the trust company seeking a reversal of the judgment of the trial court.

The plaintiff and defendant-appellant will be referred to as plaintiff and defendant, respectively, and the defendant-appellee ás parking company or lessee.

No verdict having been returned against the parking company and no motion for a new trial having been filed by plaintiff, the trial court adjudged that the case be dismissed as to the parking company, and that it recover its costs herein.

The parking company has filed in this court a motion for an order dismissing the appeal as to it, and we have come to the conclusion that this motion is well taken and should be sustained.

If the defendant and the parking company were liable in damages to plaintiff, such liability would be joint and several and defendant cannot be heard to complain that no verdict was found against the parking company, a joint tort feasor and co-defendant in the trial court. The appeal is dismissed as to the parking company.

Briefly, the errors relied on by defendant are as follows:

1. The verdict is not sustained by the evidence and is contrary to law.

2. Error in the admission of evidence and refusal to admit evidence, and in the admission of certain exhibits.

3. Error in refusal to give special requests of defendant and in giving a special request of plaintiff for instructions before argument.-

4. Errors in the general charge of the trial court and in the refusal of the court to give further instructions as requested by the jury.

5. Misconduct of counsel in argument to the jury and excessive verdict indicating passion and prejudice.

The defendant concludes its brief with vthe broad claim that this case should not have gone to the jury as against the defendant and the parking company and that, in the light of the law, the defendant should have been discharged as a party defendant, as there was no evidence to go to the jury that the premises were in a defective condition when the parking company entered into possession, all of the evidence offered as to defective condition being of a highly speculative character; that there was no showing that the defendant knew of the existence of the subspace under the sidewalk prior to plaintiff’s injury; that under the law and ordinances of the city of Toledo the owner of premises is under no obligation to effect repairs unless and until he is ordered to do so by the proper city officials and no such order was made in this case; that defendant parking company, as lessee in full possession and control of the premises was primarily responsible for the defective condition of same; and that the plaintiff being entitled to one recovery only, the court is compelled to hold that the parking company, as lessee, by virtue of the terms of the lease, agreed to assume any and all obligations of the defendant as lessor. This summation of defendant’s claims calls for an examination of the issues raised on the pleadings and the evidence adduced upon the trial.

Plaintiff alleges in her petition, as amended by interlineation, that on February 25, 1944, at about eight o’clock in the evening, she was walking in an easterly direction on Jackson street in Toledo and, when she had reached a point about 90 feet from the intersection of Jackson and Superior streets, one of the slabs of the sidewalk upon which plaintiff stepped broke in the middle and she was precipitated into the areaway beneath the sidewalk, whereby she sustained injuries of a painful and serious character; and that the sidewalk was defective and constituted a public nuisance.

It is also alleged by plaintiff that the defendant was appointed successor trustee under the will of Robison Locke, deceased, October 28, 1936, and as such trustee owned and controlled the property adjacent to and abutting the defective sidewalk; that at the time of defendant’s appointment as successor trustee and many years prior thereto such premises were improved by a commercial building with a basement approximately ten feet deep which extended under the sidewalk to the northeasterly curb line of Jackson street; that such building, basement and the sidewalk above referred to wore constructed by the predecessors in title to defendant; and that the subspace under the sidewalk was constructed for the uses and purposes of defendant and its predecessors in title.

It is alleged also that in July 1937 the defendant caused the commercial building to be torn down and removed, the basement to be filled in level with the sidewalk, and the areaway underneath the sidewalk to be blocked off without filling same; that at the time plaintiff received her injuries, the parking company wás a tenant of defendant and in possession of the premises above referred to; that defendant and the parking company knew or should have known of the existence of the areaway underneath the sidewalk, the defective manner in which the sidewalk was constructed, and the dangerous condition of the sidewalk at and prior to the time of plaintiff’s injury; and that the negligence of defendant and the parking company was the proximate cause of plaintiff’s injury.

Further, it is alleged that, subsequent to the construction of the building, basement and sidewalk by the predecessor in title of defendant, to wit, December 2, 1918, the council of the city of Toledo passed an ordinance establishing requirements for the use, by abutting property owners and users, of subspaces under sidewalks, which ordinance was amended January 17, 1921. Plaintiff pleads certain sections of the ordinance relating to the construction of any space under a sidewalk and the covering of same, so as to render the sidewalk over such subspace safe and convenient for public travel, and providing that if subspace be constructed otherwise or permitted to get out of repair, the same shall be rebuilt by the occupant or person in possession thereof upon proper notice by the director of public safety, and that “the provisions of this article shall apply to said subspaces that have heretofore been constructed or may be hereafter constructed. ’ ’

The ordinance provides also that no person shall use any such subspace without first obtaining a permit from the director of public safety, and that the application therefor shall show the location and intended use of such subspace and the manner it is constructed or is to be constructed.

It is alleged that, subsequent to the enactment of the ordinance, the defendant and its predecessor in title and their tenants used the subspace and it continued to exist as part of the commercial building; and that the defendant and its predecessor in title failed and neglected to make application for and obtain a permit to use or maintain the subspaee and covering for same.

The answer of defendant, after certain admissions and a general denial, contains a second and a third defense. In the second defense it is alleged that at the time plaintiff received her injuries and prior thereto the premises were occupied by the parking company under a written lease and such company was in the exclusive possession, management and control of the premises. In the third defense, the defendant alleges that under the terms of its lease, the maintenance, control and repair of the sidewalk were made the duty and obligation of the parking company.

The answer of the parking company contains certain admissions, specific denials and a general denial.

It is undisputed that the defendant, as successor trustee, held the legal title to the real estate upon which the sidewalk, causing the plaintiff’s injury, abutted; that, at the time defendant acquired the title, the premises, consisted of a commercial building, basement and subspace under the sidewalk on Jackson street abutting such property; that the defendant razed the building in the summer of 1937, filled up the basement and leveled off the lot but did not fill the space under the sidewalk on Jackson street; that the unimproved lot was leased to the parking company on September 2, 1942, for the purpose of open air automobile parking; and that such company was in possession of the lot at the time the sidewalk collapsed.

In addition to these admitted facts, the evidence shows or tends to show that the building on the property, including the basement and subbasement under the sidewalk, was constructed more than 50 years prior to the time plaintiff received her injuries; that in the construction of the building an areaway, about 3% feet wide, for light and air was provided between the main wall of the building and a wall parallel thereto, which, together with another wall along the curb line of the street, supported the sidewalk over the subspace; that there were openings as a means of egress from the basement into this areaway, and from it into the subspace under the sidewalk; and that this subspace could be and was used as additional basement space by the occupants of the building.

The evidence shows or tends to show also that there was a defect in the sidewalk stone or slab which subsequently broke and injured plaintiff; that the defect was due to some foreign material or deposit through the center of the stone slab; that this caused the lower portion, by action of the elements, to separate from the upper, over a period of years, and break or scale off, and caused the broken parts to fall into the subspace; and that the stone originally was about 10 inches thick but at the time it broke it was less than half of its original thickness.

It further appears from the evidence that the defect in the stone which collapsed could have been detected from an inspection of its edges, but after the stone was put in place, this defect was not apparent upon view’ of the surface; that the deterioration of the stone vas apparent from the subspace underneath, many years before the collapse; that at the time of plaintiff’s injury there was nothing to direct the attention to the existence of the sub space under the sidewalk except the two or three manholes some distance westerly from the place where the stone walk collapsed; and that at the time the defendant was appointed as successor trustee it sent an agent to Toledo to inspect the property and to ascertain its condition.

First, we shall consider the assignment of error that the verdict is not sustained by the evidence and is contrary to law.

The defendant contends that a landlord out of possession and control owes no duty to a third person sustaining injuries as a result of the defective condition of the leased premises, and that in the instant case the parking company as lessee, by virtue of the terms of its lease, knew of the existence of the subsidewalk space and was charged with notice of any defects in the premises. The soundness of this contention appears to have a narrow application and rests upon a limited factual basis.

If the owner of premises is out of possession and control, as where the premises are in the possession and control of a tenant, the owner is not liable as a general rule to third persons who come upon the premises as invitees or licensees of the tenant and while there sustain injuries by reason of some defect in the promises. The rule of nonliability of the owner under this state of facts is recognized in a number of cases. Burdick v. Cheadle, 26 Ohio St., 393, 20 Am. Rep., 767; Shindelbeck v. Moon, 32 Ohio St., 264, 30 Am. Rep., 584; Stackhouse v. Close, 83 Ohio St., 339, 94 N. E., 746; Marqua v. Martin, 109 Ohio St., 56, 141 N. E., 654; Berkowitz v. Winston, 128 Ohio St., 611, 193 N. E., 343; Rippie v. Mahoning National Bank, 143 Ohio St., 614, 56 N. E. (2d), 289.

In the instant case, the plaintiff was not an invitee or licensee of the parking company and did not enter upon the premises owned by the defendant and by it leased to the parking company. When injured, plaintiff was on the sidewalk of a public street. This fact is the focal point of the case. If any latitude is assumed at this point, the reported cases confuse, rather than clarify. The rule is well settled in this state that a pedestrian has an action for damages for personal injuries proximately caused by a defective condition in the sidewalk created or negligently maintained by an owner or occupier of the abutting property for his own use and benefit, such as an opening in the sidewalk or an excavation underneath where same is defectively constructed or covered or is negligently maintained in a defective condition, and such pedestrian may maintain such action against the owner of the abutting property or against the occupier thereof, or both, subject to the relationship and corresponding duty each had as to the alleged defect. Hawver v. Whalen, 49 Ohio St., 69, 29 N. E., 1049, 14 L. R. A., 828; Morris v. Woodburn, 57 Ohio St., 330, 48 N. E., 1097; Herron v. City of Youngstown, 136 Ohio St., 190, 24 N. E. (2d), 708; Globe Indemnity Co. v. Schmitt, 142 Ohio St., 595, 53 N. E. (2d), 790; Mooney v. Hauck, 1 Ohio App., 432; 28 Ohio Jurisprudence, 632, Section 400; 62 A. L. R., 1067, annotation.

Defendant contends further that “even assuming that the premises were in a defective condition at the time the lease was entered into,, the parking company is chargeable with the trust company for the maintenance of such defective condition from and after the date of the lease”; and that “the parking company, as lessee of the premises, could under no circumstances escape liability.” This contention deserves consideration and a careful review of the authorities.

Broadly speaking, “the obligation owed to third persons by a tenant in possession of demised premises is the same as the obligation owed to third persons by an owner of premises who is in possession thereof.” 24 Ohio Jurisprudence, ,1001, Section 253.

It appears from the decided cases that the owner of a building adjacent to a public street owes a duty to the public to exercise ordinary care in the management and use of the property and to inform himself of its condition, and if a potentially dangerous condition is created by the owner or negligently maintained, such as a subspaee under the sidewalk adjacent to the property, the owner is liable in damages to a pedestrian wbo sustains injuries proximately caused by such defect. Under the foregoing situation, if the owner leases the premises and the lessee takes possession and control of same and continues such defective condition after actual or constructive notice of its existence, such lessee may also be liable and a joint or several action may be maintained by the injured pedestrian. Debar, Admr., v. Walsh et al., Exrs., 11 Ohio App., 75; Yackee, Admx., v. Village of Napoleon, 135 Ohio St., 344, 21 N. E. (2d), 111; Freyer v. White, 21 C. C. (N. S.), 225, 33 C. D., 324; Friedl v. Lackman, 136 Ohio St., 110; 24 Ohio Jurisprudence, 966, Section 218; 32 American Jurisprudence, 641, Section 757; 36 Corpus Juris, 243, Section 954; Restatement of Torts, 1013, Section 379.

This action is predicated on an alleged joint tort of defendant as owner and the parking company as tenant. The issue of joint and several liability thus raised was for the jury. It determined the issues of fact against the defendant and in favor of the parking company. Its verdict is sustained by credible evidence and does not appear to be manifestly against the weight of the evidence. Under the great weight of authority, the verdict and judgment thereon in the instant case are not contrary to law. Furthermore, the cause of action being the alleged “joint or concurrent wrongful acts” of the defendant and parking company, the defendant cannot complain in this action that there was no finding and judgment against the parking company. 39 Ohio Jurisprudence, 232, Section 23; Counter v. Tiedman, 29 Ohio App., 489, 163 N. E., 915; Armour & Co. v. Reams, Admr., 31 Ohio App., 390, 166 N. E., 592.

We will now consider the remaining assignments of error.

First, there was claimed error in admitting and refusing to admit certain evidence, and in admitting certain exhibits.

The errors complained of in admitting testimony relate to the testimony as to tax valuations for the years, 1883, 1884 and 1885. This evidence tends to show that within this period the property was substantially improved. It is not apparent how this evidence was material, but it does not appear to be prejudicial.

Testimony over defendant’s objection was received relative to the issuance of permits for the construction or maintenance of subspace under the sidewalk abutting on the premises in question and which tended to show that there was no ordinance prior to December 2, 1918, requiring a permit from the city before any one could construct a subspace under a sidewalk. Further, complaint is made that, since the ordinance, or that part of it pleaded, related to subspace “used in connection with the adjacent building” and since the building was subsequently razed, the ordinance had no application to this case. However, there is evidence in the record that the subspace was so used. It does not appear that the admission of this evidence was erroneous.

Defendant complains that the trial court erred in refusing to admit in evidence the entire lease between defendant and the parking company and in admitting two sections thereof. Only sections 18 and 27 of the lease were brought to the attention of the jury. Those sections related to the right of the lessor and its agents to enter upon the premises and “examine the condition thereof” and to the matter of the payment by lessee of any fees imposed by the city for use as rental of subspace under any walk “in connection with said demised premises.”

The trial court stated to the jury that the lease would be admitted for a limited purpose, that is, as bearing on the question whether as a matter of law the parking company leased the subspace and for what purpose the jury might consider sections 18 and 27 of the lease. The court in its general charge instructed the jury that section 18 might be considered for the purpose of determining whether the defendant exercised any control over the leased premises, including the subspace, and that section 27 might be considered by the jury in determining whether the parking company had actual or constructive notice “of the existence or maintenance and manner of control of such subspace.” In view of the issues raised on the pleadings and the evidence adduced in this case tending to show that the subspace and the covering of the same were in a defective condition prior to the execution of the lease, we conclude that no error was committed by the trial court in excluding the lease or in bringing to the attention of the jury sections 18 and 27 thereof for the purposes limited by the instructions.

Exhibits admitted over the objection of defendant have received consideration. The defendant admitted in its answer and disclosed in the testimony of one of its officers that it was appointed successor trustee in 1936, had caused the premises to be' inspected, later the building thereon razed, and, after the sidewalk collapsed, had the same repaired. The purpose of offering and receiving the building permit for authority to raze the building and the correspondence between the defendant and its agent in Toledo concerning those matters and the matter of repairs to the sidewalk after its collapse is not apparent. However, we. do not feel that any prejudice to the defendant resulted from the admission of any of the exhibits complained of.

Defendant complains that prejudicial error was committed by the trial court in its general charge to the jury and in its failure to give certain instructions specially requested before argument. The defendant’s • numerous objections to the charge' as given and its requests to charge are centered on its claim of non-liability as a matter of law. The claim of nonliability rests on the contention that the city ordinance pleaded and introduced in evidence had no application to the defendant; that no duty was cast upon it with regard to the subspace and defective covering, for the reason that the parking company, as lessee,, was in possession and control of the premises upon which the collapsed sidewalk abutted; and that no notice to repair the sidewalk prior to its collapse had been given the defendant by the city. We can not agree with this contention.

As already pointed out, the question of liability of the defendant and parking company on the issues raised on the pleadings and the evidence was for the jury. The utility of the subspace in relation to the building as it once existed is not only inferable from the means of ingress and egress provided in the original construction, but there is credible evidence in the record that it was so used by defendant’s predecessors in title. The defendant’s possession of the building .from the time of its appointment as successor trustee to the time the building was razed not only creates an inference of knowledge of the utility of the subspace but also an inference of knowledge of its existence and of the deteriorated condition of the sidewalk at the time the lease was executed, and prior thereto.

Furthermore, in view of the provisions of the ordinance expressly applicable to the construction and maintenance of sub space under a sidewalk and the covering over the same, so as to render the surface of the sidewalk “over such subspace safe and convenient for public travel,” this being a specific requirement and its violation negligence per se, the charge of the trial court in this regard was not erroneous.

We feel the court’s charge adequately covered the issues presented and is free from prejudicial error.

Time and space do not permit a discussion of the remaining errors assigned. We have given each of them careful consideration and do not feel that the claims made are well taken or that the amount awarded plaintiff is excessive. The evidence tends to show that the plaintiff sustained serious injuries. It was the province 6f the jury to deal with the diverging medical testimony as to the nature and extent of the injuries. - The amount of the verdict does not appear to be excessive, and does not appear to have been awarded under passion and prejudice.

Judgment affirmed.

Carpenter and Stuart, JJ., concur.


author: Doyle, P. J. Stevens, J.,

text:
    Keath, Appellee and Cross-Appellant, v. Keath, Appellant and Cross-Appellee.
    (No. 3768
    Decided July 29, 1946.)

      Messrs. Davis & Lipps and Mr. Amos H. Englebeck, for appellee and cross-appellant.

      Mr. Carl M. Myers, for appellant and cross-appellee.
   Doyle, P. J.

The action was commenced in the Court of Common Pleas (Division of Domestic Relations) of Summit county, by Evelyn Keath against her husband, G-ordon Keath, in which she asked for a divorce, alimony, custody of their children, etc. The husband by his answer and cross-petition also sought a divorce, alimony, custody of their children, etc. Thus stood the parties, with their respective denials of the charges, at the time of trial.

On July 25, 1945, the trial commenced and continued for a week and more. Prior to the finding of the court on the issues made and the subsequent journal entry of judgment — to wit, on September 25, 1945 — -the plaintiff wife, through counsel, moved for an order of the court to compel the defendant “to pay the plaintiff, for expenses and counsel fees incurred by her during the suit, * * * such sum of money as the court finds to be necessary, fair and reasonable.”

The bill of exceptions and the court’s “finding” show that on November 13, 1945, the court announced its dismissal of both the plaintiff’s petition and the defendant’s cross-petition, and ordered the costs to be borne equally by the parties. Then continuing, the court said: “The court, on application of the plaintiff for an allowance for expenses of suit incurred by her, recognizes the responsibility to award a sum which will compensate for the defense to the cross-petition •of the defendant, and therefore awards to plaintiff for such purpose the sum of $2,711.50, which may be taxed as additional costs chargeable to the defendant. ’ ’

On November 21, 1945, the court journalized in part the finding, and ordered the defendant to pay to the attorneys $2,711.50, the same to be taxed as costs. The judgment entry is in the following terms:

“This cause came on to be heard on the pleadings, the evidence, and the arguments of counsel, and was submitted to the court.

‘ ‘ On consideration thereof, the court dismisses plaintiff’s petition and defendant’s cross-petition, and orders that the court costs be paid equally by the parties. The injunction heretofore allowed to issue is dissolved.

“The cause came on further to be heard on plaintiff’s motion for an order requiring defendant to pay for expenses and counsel fees incurred by plaintiff during the suit.

“On consideration thereof, the court sustains the motion and orders that defendant pay to Davis & Lipps, as attorneys for plaintiff, the sum of two thousand seven hundred eleven and 50/100 dollars ($2,-711.50) for expenses and counsel fees incurred by plaintiff during the suit in defense to the cross-petition of defendant, which sum the court orders to be taxed as additional court costs chargeable to defendant. * * *”

The defendant appealed and has alleged the following errors:

“The decision of the court is against the manifest weight of the evidence. The defendant clearly proved that he was entitled to a divorce on the manifest misconduct of the plaintiff.

“The court was guilty of error in granting attorney fees and expenses to counsel after dismissing the petition and the cross-petition. The court having found against both parties, the only remaining power vested in him was to fix the costs. * * *”

The plaintiff filed a cross-appeal and has alleged the following errors:

“The judgment of the court is manifestly against the weight of the evidence and contrary to law.

“The court erred in refusing to order an allowance to plaintiff for expenses of suit and counsel fees incurred by her in the prosecution of her action.”

It is apparent from the foregoing recitation of facts, including the judgment from which this appeal is taken, that the trial court committed prejudicial error when it, after dismissing the petition and the cross-petition, sustained the properly-filed motion for alimony pendente lite and ordered that the defendant “pay to Davis & Lipps, as attorneys for plaintiff, the sum of * * * $2,711.50 for expenses and counsel fees incurred by plaintiff during the suit in defense to cross-petition of defendant, which sum the court orders to be taxed as additional court costs chargeable to defendant.”

In the first place, there is no provision in the statutes for taxing attorney fees as a part of the costs in the case, and such an order, when challenged, cannot stand. See 11 Ohio Jurisprudence, Costs, Section 52, and cases therein cited.

The authority for the award of attorney fees is found in Section 11994, General Code, in the following language :

“On notice to the opposite party of the time and place of the application, the court, or a judge thereof, in vacation, may grant alimony to either of the parties for his or her sustenance and expenses during the suit * * * J ?

This statute has been and is construed to mean that a court in the exercise of discretion may grant alimony to a wife for her expenses in connection with the retaining of attorneys to represent her. Stuart v. Stuart, 144 Ohio St., 289, 58 N. E. (2d), 656.

The voluminous record has been re.ad, with its recitation of the tangled lives of the litigants. Unfortunate as it may be for the parties, this state has not adopted the doctrine of comparative rectitude, but has strictly adhered to the rule that if the conduct of both parties to a divorce action has been such as to furnish grounds for divorce, neither of the parties is entitled to relief. Logic cannot permit the weighing of the quantum of guilt and award the divorce to the one loss guilty, for to ¡do so would repudiate the principle that divorce is a remedy provided for the innocent.

The trial court heard many witnesses and had the opportunity to hear and observe the parties. It is not our right, as a reviewing court, to usurp the duties of a trier of the facts. We can but look to the printed record, and from it determine whether the evidence and the reasonable and probable inferences to be drawn therefrom justify in law the judgment. It is our conclusion that the judgment refusing a divorce to either party is neither contrary to law nor manifestly against the weight of the evidence. See 2 Bishop on Marriage, Divorce and Separation, Sections 395, 396, and 63 A. L. R., 1132, annotation.

This court is compelled to reverse the judgment for the prejudicial error indicated, and remands the cause to the Court of Common Pleas with instructions to pass upon the motion of the appellee for “expenses and counsel fees incurred by her during the suit,” and then to re-enter the judgment rendered on the merits.

Consideration has been given to the argument of counsel for the appellant that the case of Schaffer v. Schaffer, 114 Ohio St., 309, 151 N. E., 186, precludes the award of fees by way of alimony pendente lite in a journal entry which has in a prior paragraph thereof dismissed the pleadings. The following language in the per curiam opinion is given in argument of the claim: “The trial court having found that neither the allegations of the amended petition nor of the cross-petition had been sustained, and having for that reason dismissed both the amended petition and the cross-petition, had jurisdiction left to enter judgment for costs, and none other.” (Italics ours.)

This language in the Supreme Court’s opinion dealt solely with the facts of the case then under review, and of course is a correct pronouncement applicable to those facts. It is not our belief, however, that the Supreme Court intended that pronouncement to prohibit a proper allowance of alimony pendente lite to the wife for expenses of counsel after motion properly made, in a same journal entry which dismisses a divorce proceeding. It would, we think, be better practice, however, to rule first on all interlocutory is.sues and then dismiss the action.

As heretofore stated, the judgment is reversed for the reason that the court taxed counsel fees in the costs of the case and ordered it paid direct to the attorneys. The cause is remanded for a proper decision on the motion for alimony pendente lite, and then the re-entering of the judgment on the merits.

Judgment reversed and cause remanded.

Montgomery, J., concurs.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Ninth Appellate District.

Stevens, J.,

dissenting. The facts as stated by Doyle, J., need not be here repeated.

There is one question to be here decided:

Where an allowance of attorney fees to plaintiff wife’s counsel has been made and taxed as costs, must the judgment be reversed for such error, or may the reviewing court correct the judgment of the trial court by deleting the improper part of the judgment?

We agree that there is no statutory or legal justification for ordering an allowance of attorney fees to be taxed as costs; that Section 11994, General Code, furnishes the basis for the allowance of fees, but does not provide for the fees being taxed as costs.

It therefore follows that the order to tax the attorney fees as part of the costs was beyond the power of the court to make, and for that reason invalid.

Under such circumstances, it seems to me that a reviewing court ought to exercise its constitutionally-granted power of modification, modify the judgment, and affirm it as modified. I do not believe that reviewing courts ought to seize upon all irregularities, merely to accomplish a reversal of a judgment, when, without prejudice to either party,- the judgment which the trial court should have rendered can be attained by the aforementioned procedure.

Section 11994, General Code, provides that the court “may grant alimony” to a wife “for * * * her * * * expenses during the suit,” and in Stuart v. Stuart, 144 Ohio St., 289, 58 N. E. (2d), 656, the Supreme Court held (p. 290) that “The term ‘expenses’ properly includes attorney fees.” An allowance of alimony to plaintiff’s attorneys is not authorized by the statute, and the allowance should have been made to the wife for her expenses during the suit.

In this case, if the words “Davis & Lipps, as attorneys for” were deleted from the second and third lines of the last paragraph of the entry, and also the words “which sum the court orders to be taxed as additional court costs chargeable to defendant” from the last three lines of said paragraph, there could then be no valid objection to the allowance as made by the court.

I am of the opinion that the entry should be modified as above suggested, and as modified the judgment should be affirmed.

I therefore dissent from the conclusion announced by a majority of the court, and from the 'opinion, except in so far as agreement is above indicated.