author: Skeel, J.

text:
    The State of Ohio, Appellee, v. Carter, Appellant.

      (No. 19739
    Decided October 2, 1944.)

      Mr. Frank T. Gullitan, prosecuting attorney, for appellee.

      Mr. A. L. Steuer, for appellant.
   Skeel, J.

The defendant was indicted for the crime of murder in the second degree. It was the claim of the state that the defendant, Jimmie Carter, purposely killed Dorothy Carroll.

The defendant, with his wife and two other persons, had been drinking during the evening of December 26, 1943. About one o’clock a. m. of the 27th they all went in search of more liquor. When they arrived at a cafe on Scovill avenue, in the city of Cleveland, a quarrel developed between the defendant and his wife, and Dorothy Carroll who was a close friend of Mrs. Carter became involved in the argument. A fist fight between Dorothy Carroll and the defendant resulted. In the course of the fight the defendant is alleged to have stabbed Dorothy Carroll, as a result of which she died. The cause was tried to a jury and a verdict of guilty to the included offense of manslaughter was returned.

It is the claim of the defendant that :

1. The verdict is against the manifest weight of the evidence.

2. The court erred in admitting certain evidence over defendant’s objection, and in the exclusion of evidence offered by defendant.

3. The court erred in refusing to direct a verdict of “not guilty” as to the principal crime charged of murder in the second degree, on defendant’s motion made at the conclusion of all the evidence.

4. The court erred in overruling defendant’s motion for a verdict of not guilty at the conclusion of the state’s case and at the conclusion of the taking of all the evidence.

5. The court erred by invading the province of the jury as to the probative value of some of the evidence by saying in the jury’s presence that the police officer has “no interest whatsoever except to tell the truth in the matter and let the jury do the rest.”

6. The court erred in restricting the defendant in the number of character witnesses that he could call in his behalf, and in commenting on what such witnesses would say.

7. The court erred in its charge to the jury and also in refusing to charge applicable rules of law as was timely requested by the defendant.

8. The defendant was not'accorded a fair, and impartial trial.

Defendant’s assignments of error Nos. 1, 3 and 4 are overruled for the reason that an examination of the record discloses that some evidence was introduced by the state in support of all the elements of the crime of murder in the second degree, which evidence was of sufficient probative value to require the case to be submitted to the jury.

The defendant’s second claim of error involves the ruling of the court in sustaining the state’s objection to a question propounded to a state’s witness on cross-examination by defendant’s counsel. The record is as follows:

“Mr. Steuer: Have you ever been convicted of a crime of any kind? A. No, sir, not like that.
“Q. Well, have you ever been convicted of any crime ?
“The court: Just a moment. You know the rule. Let’s not take advantage of the situation. You know the rule.
“Mr. Steuer: Does the court say the question is an improper question or not?
“The court: You certainly know that.
“Mr. Steuer: No, I don’t, Your Honor.
“The court: If you don’t, it’s about time you started getting acquainted with the rules.
“Mr. Steuer: Well, have you ever been convicted of a felony * * *. Have you been convicted of anything else than what you have told us?
“Mr. Miner: Objection.
“The court: Sustained.
“Mr. Steuer: Exception.
“The court: In case you don’t understand, Judge Steuer—
“Mr. Steuer: I do not, Judge.
“The court: I will state the rule to you very plainly and simply. You may inquire of a witness as to whether or not he was ever arrested and convicted of a felony and that only — not a misdemeanor.
“Mr. Steuer: May I have an exception to that ruling?
“The court: You may have your exception.”

The rule as thus stated by the court is erroneous. Section 13444-2, General Code, provides in part:

“No person shall be disqualified as a witness in a criminal prosecution by reason of his interest in the event thereof as a party or otherwise, or by reason of his conviction of crime * * *. Such interest, conviction or relationship may be shown for the purpose of affecting the credibility of such witness.”

It is to be noted that the Legislature does not say that the conviction of a witness for a felony may be shown as affecting his credibility, but rather it is provided that his conviction of a crime may be shown for that purpose.

In the case of Harper v. State, 106 Ohio St., 481, 140 N. E., 364, the defendant had been arrested and convicted of pocket picking. During the course of the trial the prosecutor, while cross-examining the defendant, asked him if he had not been arrested and convicted of purse-snatching and when the defendant answered that he had not been convicted and fined for such crime the prosecutor, upon rebuttal, introduced the record of the then Criminal Court of the city of Lima,'to show his conviction of a violation of a state statute, to all of which the defendant objected. The testimony of such previous conviction thus relied upon, in part at least, to challenge the defendant’s credibility, involved a case which was a misdemeanor under state laws. The court, on page 484, in holding that such evidence was competent for that purpose, said:

“In order to aid the jury and the judge in determining this question, to enable them to rightly and justly weigh the evidence, large latitude has been allowed in the cross-examination of those who are particularly interested in the result of a-verdict or judgment, and, in all such cases, convictions of high crimes and misdemeanors, convictions of crimes under state and federal laws, have been considered by courts as competent when limited solely to the credibility of the witness, unless, of course, they bear some causal connection to the crime charged in the indictment upon which the instant trial is proceeding; or unless competent in chief to prove some specific intent.”

The following cases also support this statement of the rule: Coble v. State, 31 Ohio St., 100; Kent v. State, 42 Ohio St., 426.

• In the Coble case, supra, Judge Mellvaine explains the reason why conviction under a municipal ordinance could not be shown for the purpose of affecting the credibility of a witness. On page 102 of the opinion the court says:

‘ ‘ Convictions for violations of city ordinances never disqualified a person from testifying in any cause, and, therefore, such convictions cannot be shown under favor of this section (referring to what is now Section 13444-2, General Code) for the purpose of affecting the credibility of the witness.”

Whether, under modern trends whereby the cities in Ohio have the right of home rule under charters adopted by the people upon constitutional authority, conviction of a crime, defined by the ordinances of such city which have the effect of law and not just simple police regulations as earlier considered, should be excluded as a means of challenging the credibility of a witness, presents a serious question. At least the reason why such a conviction could not be shown does no longer exist.

The defendant’s fifth assignment of error is concerned with a statement made by the court in the presence of the jury during the concluding arguments. Defendant’s counsel, while addressing the jury, said: “Remember this, that the police officers are anxious for a conviction.” The court then interrupted him, as disclosed by the record, as follows:

“The court: Just a moment * * * there is no testimony here that the police officer is anxious for a conviction. You are completely outside the record, and you are directed to withdraw that statement from the jury.
“Mr. Steuer: I shall do as the court directs.
‘ ‘ The court: Police officers have no interest whatsoever except to tell the truth in the matter and let the jury do the rest.
“Mr. Steuer: Well, is the jury bound to take the testimony of the officers as true?
“The court: We will instruct the jury on the question of credibility of witnesses.”

The court in its general charge instructed the jury as to their duty in considering the credibility of the testimony 'of the several witnesses. It seems clear, however, that such charge could not correct the prejudice that the defendant’s case must have suffered by the court’s statement that certain of the witnesses “had no interest but to tell the truth.” Such a statement invades the province of the jury and constitutes prejudicial error. ,

The sixth claim of error is directed against the court’s refusal to permit some of the character witnesses produced by the defendant to testify. The record discloses that after five character witnesses had been called and testified a Mr. Stewart was called to the stand to testify as a character witness. We quote from the record:

“-Mr. Steuer: Call Mr. Stewart.
“The court: Another character witness? You have had five or six now. You don’t have to bring more. Nothing added by parade of witnesses, all of whom will say he had a good reputation.
“Mr. Steuer: Except that they themselves are very highly respectable citizens, Your Honor, and the jury should know that.
“The court: We think you have had enough of that sort of testimony.
“Mr. Steuer: All right. Exception. May I show a proffer of three more character witnesses and the order not to use them? Exception.”

Section 13444-18; General Code, provides in part that:

“ * * * Not more than ten witnesses upon each side shall be permitted to testify upon the question of character or reputation in a criminal cause, except.as herein provided, unless his full per diem and mileage fee has been so deposited or paid by the party in whose behalf he is sworn * *

While this section is concerned with preventing “the squandering of the public revenue and a waste of the time of the courts, ’ ’ as stated by the Supreme Court in the case of State v. Stout, 49 Ohio St., 270, at page 278, 30 N. E., 437, yet from the text of the statute it is made clear that the court is without power to limit unreasonably the number of witnesses called to give character or reputation testimony. It might be added that in commenting on such evidence, the statement that “nothing is added by parade of witnesses, all of whom will say he had a good reputation” would, in all probability, minimize the value of such evidence and mislead the jury in its consideration. Such court’s ruling was, therefore, prejudicial to the defendant.

The seventh assignment of error concerns the refusal of the court to give certain instructions to the jury, as requested by defendant, and also claimed errors with regard to parts of the charge as given by the court.

The requests to charge presented were all upon the subject of the necessity for the state to show that the defendant, before he could be found guilty of murder in the second degree, must be shown to have acted with intent and purpose to kill; that is, that the act which caused the death of the deceased, must have been committed by the defendant with the specific purpose and intent to cause the death of the deceased. Each request was a correct statement of the law. But the court overruled the requests on the ground that the subject had been fully covered in the charge as given. In this the court was correct. While the charges requested were more explicit than that given by the court, yet the charge as given was sufficiently complete so that the court did not commit prejudicial error in refusing the defendant’s request. Likewise, the court’s charge on the law of self-defense was an accurate and complete statement of the law.

The court’s charge defining manslaughter is wholly inadequate. The court, after reading Section 12404, General Code, which defines first degree manslaughter, said:

“So, should you find this defendant is not guilty of murder in the second degree, you will then turn your attention and see whether or not he may be guilty of manslaughter, and in connection with your consideration of this degree of crime, I must advise you that the elements of deliberation, premeditation and malice do not enter into the offense of manslaughter. A purpose to kill is not necessary for the completion of this crime', though the purpose to kill may exist where the killing was unlawful but without malice, as for instance, upon sudden quarrel, or under the influence of sudden passion and of course, in this regard the same degree and certainty of proof is necessary that is, beyond a reasonable doubt.”

The charge as thus given neglects to divide the subject into its two natural divisions, that is, voluntary and involuntary manslaughter, or to give a correct statement of the necessary elements which must be shown beyond a reasonable doubt to make a case.

Involuntary manslaughter is the unlawful and unintentional killing of a human being, such death directly resulting from the slayer’s committing an unlawful act. The committing of the unlawful act must have been a proximate cause of the death. The evidence in this case required that the jury be instructed on the subject of involuntary manslaughter.

Voluntary manslaughter is the unlawful and intentional killing of a human being while the slayer is under the influence of a sudden passion or heat of blood produced by an adequate and reasonable provocation and before a reasonable time has elapsed for the blood to cool and reason to assume its habitual control. Mai-ice is not an element of the crime, because though the killing is unlawful and intentional, it is considered that the adequate provocation resulting in sudden passion or heat of blood has momentarily deprived the accused of his reason and he is impelled to act by reason of the provocation and is, therefore, without the capacity to reflect. But the provocation must have produced such a degree of passion or'rage that the mind is incapable of forming a malicious intent.

There are three -questions to be considered in determining whether a purposeful killing should be reduced from murder to manslaughter:

1. The adequacy of the provocation; that is, was the provocation such as would produce a degree of anger, rage, passion or terror, sufficient so that a man of reasonable temper would be incapable of reflection?

2. Did such provocation result in hot blood or uncontrollable passion on the part of the defendant?

3. Did the killing take place as a result of such provocation, while the slayer was in the heat of blood caused thereby and before a reasonable time had elapsed for the blood to cool, and reason to resume its habitual control? John v. State, 16 C. C. (N. S.), 316, 31 C. D., 512; Zeltner v. State, 13 C. C. (N. S.), 417, at page 426, 22 C. D., 102.

Although these questions were directly drawn into the case by the evidence, the court’s charge failed to define the elements of either voluntary or involuntary manslaughter, whereby the jury was left without- a proper guide in its deliberations. While it may be that the court’s failure was to the greater prejudice of the state, than of the defendant, yet, inasmuch as the case is to be retried, the inaccuracy of the charge should not go unnoticed.

The court further concludes that defendant was not granted a fair trial because of the errors which have been enumerated herein and therefore we sustain the defendant’s eighth assignment of error.

For the foregoing reasons the judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Morgan, P. J., and Lieghley, J., concur'.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Smith, Appellant, v. Duracraft Products Co., Appellee.

      (No. 6528
    Decided May 21, 1945.)

      Messrs. Dolle, O’Donnell & Gash, for appellant.

      Messrs. Stewart & Beirne, for appellee.
   Matthews, J.

The plaintiff sued to recover damages for breach of a contract to pay him five per cent on all business secured by him in Louisville and Jefferson county, Kentucky, in consideration of his services as its sales representative in that territory. He alleged that he rendered the services and secured $135,652.03 worth of business in that territory, and prayed for judgment for five per cent thereof with interest.

The defendant admitted entering into the contract and that the plaintiff had secured orders in the sum of $132,363.86 from Curtiss-Wright Corporation for the manufacture of certain articles; that it manufactured and delivered to Curtiss-Wright Corporation a part thereof totaling $1,044.65, a part of which was returned by Curtiss-Wright Corporation, and that thereupon Curtiss-Wright Corporation cancelled the residue of such orders, as it was authorized to do by the terms thereof. The defendant offered to confess judgment for five per cent of the contract price of the articles delivered, not exceeding $55.57.

A jury was waived. At the trial the plaintiff introduced the writing which the parties had signed as the evidence of their contract. This writing is as follows:

“April 19, 1943.
“Duraeraft Products Co.,
2339 Gilbert Avenue
Cincinnati, Ohio.
‘ ‘ Gentlemen:
“This letter is confirmation of recent verbal agreement between W. J. Smith, 209 Martin Brown Building, Louisville, Kentucky, and Duracraft Products Co. of Cincinnati, Ohio, to the effect that the latter named firm will pay to W. J. Smith for his personal services as your engineer and local representative a sum of'five percent (5%) on all business secured either directly or indirectly from the territory of Louisville and Jefferson county, Kentucky, for the Duracraft Products Co. during a period of ninety (90) days beginning from this date; and the continuation of said contract thereafter will be subject to mutual agreement of both parties, and to be determined at the expiration date of the above stated ninety (90) days.
“Furthermore, it is agreed that W. J. Smith is to assume all of his own operating expenses and that the Duracraft Products Co. is not obligated to compensate or to remunerate to W. J. Smith for the latter’s services, other than the above stipulated five percent (5%) on business actually obtained.
“ Signed
“W. J. SMITH
“Sig. Witnessed by
“Vera Reynolds
“.Above agreement approved by "'Duracraft Products.
Division Cincinnati Venetian Blind Co.
“By J. W. Watthall,
“Sig. Witnessed by
“Thomas Hendy..’’

Evidence was introduced showing that the plaintiff was in a position to solicit orders or sub-contracts with concerns engaged in manufacturing war supplies for the United States Government, and particularly was in a position to solicit from Curtiss-Wright Corporation, which was engaged in manufacturing aeroplanes under contract with the government. In fact, he had an arrangement with Curtiss-Wright Corporation and had been furnished with blue-prints and specifications by it before he started negotiations with the defendant.

The evidence shows that under *a regulation of the War Department, authorized by act of Congress, the United States Government reserved the right to terminate its contracts for war material a-t its discretion, upon which termination it would pay for the executed portion upon a certain basis but make no payment of damages for the part unperformed.

Curtiss-Wright Corporation was producing aeroplanes for the government and the orders which the plaintiff obtained were for parts which it needed to enable it to fulfill its contract. Because of the power reserved by the government to terminate the contract for aeroplanes, Curtiss-Wright Corporation incorporated in all these orders obtained by the plaintiff a provision, in effect, making them subject to this right to terminate and authorizing Curtiss-Wright Corporation to terminate them upon giving written notice upon which it would be liable only to the extent that it was reimbursed by its customer for actual pending obligations and inventory purchased for fabrication into goods called for in the orders, and upon such payment the materials were to be delivered to Curtiss-Wright Corporation.

After holding the letter for about two weeks, the defendant signed its name to the acceptance and returned the letter with the acceptance to the plaintiff.

Those were the circumstances under which the plaintiff and defendant contracted.

The evidence also shows that Curtiss-Wright Corporation did cancel the orders after a small quantity had been delivered and that this cancellation resulted from the fact that the government had terminated its contract with Curtiss-Wright Corporation for the special type of aeroplane for which the parts included in these orders were intended.

There was evidence introduced by the defendant, over the objection of the plaintiff, of a conversation between the plaintiff and two of the defendant’s officers before they signed the contract and while they had its signing under consideration. In this conversation, the plaintiff was told that they were hesitating ■about signing because they were uncertain about when plaintiff was to be paid under the terms of the writing and that they did not want the contract to bind defendant to pay before the defendant was paid by its customer, or, at least, until merchandise was delivered to its customer. Upon being told this, the plaintiff, according to this testimony, assured them that it was his understanding that he was not to be paid until defendant was paid, and thereupon they signed on behalf of the defendant.

The trial court found that the right of the plaintiff to receive a commission on the Curtiss-Wright Corporation orders was contingent upon it not terminating the contract following the termination of its contract with the government, by the government. The court .rendered judgment for the plaintiff for five per cent of the contract price of the materials delivered to Curtiss-Wright Corporation on the orders.

The plaintiff appealed from that judgment, assigning several errors. The decision, however, depends entirely upon the correct interpretation of the contract.

It is claimed that the court erred in the admission of the conversation between the plaintiff and the defendant’s officers as-to when and under what circumstances the plaintiff would receive his commission. The contention is that this violated the parol evidence rule ■in that its purpose was to vary or add to the agreement, as evidenced by the writing.

It will be observed that the writing makes no reference to the time of payment of any commissions earned. Without doubt in that situation the law would imply that payment should be made at the time -the commissions were earned. And the commissions — - according to the writing — -were to be computed ‘ ‘ on all business secured,” or as stated at the close of the letter, “on business actually obtained.”

The question presented is whether under all the circumstances resort can be had to the prior oral communications between the parties for the purpose of arriving at the meaning of the words used by the parties in the writing, and not solely, or at all, for the purpose of fixing the time of payment or of imposing a condition of payment, when the writing contains no provision on the subject.

The authorities disclose some confusion as to whether evidence of prior oral declarations of intent are admissible on the terms of a written contract not expressed in the writing, but imported into it by implication of law only — such as the time of payment when the writing is silent on that subject. It is broadly stated in 17 Ohio Jurisprudence, 530, that implied contracts, and terms implied by law, are subject to the parol evidence rule. However, the Ohio cases cited for the statement furnish a shaky foundation for the statement. In 3 Williston on Contracts (Revised Ed.) at 1839 (Section 640) the author says that it is the general rule,, although he criticizes it.

In this posture of the authorities, we would hesitate to hold that these prior oral statements were competent if the writing were definite in all other respects. But this writing is indefinite in perhaps the most important -term of the contract, that is, as to the time when the duty to pay attaches and not merely to the time when that duty should be discharged. At no place in the writing is it stated that the plaintiff would earn his commission by obtaining orders accepted by defendant. The basis of his right to commissions was “business secured * * * business actually obtained.” Reference to any English dictionary will disclose that the word “business” has a very broad meaning. It means anything that engages time, attention, or labor. It may be used in many different connotations. It seems plain that the declarations of the parties as to the particular sense in which they used the terms in a writing is competent to explain, not to vary, the writing. 12 American Jurisprudence, 757.

Furthermore, the plaintiff’s commission was to be computed on the amount of the business obtained. It would seem that that language would limit the base for calculation to the opportunity which the plaintiff had secured for the defendant to pursue its business and, where, without its fault and in accordance with the terms of the orders obtained by plaintiff, it was less than the parties had hoped, there would be no right to commissions for the unfulfilled hope. That seems to be the case.

Suppose the order had been for the “requirements” of Curtiss-Wright Corporation and defendant had accepted it. Could it be said that the plaintiff had earned his commission upon the acceptance of such an order? If so, upon what basis, would it be calculated? Or suppose it had been for “requirements” not exceeding a specified amount. Upon acceptance of such an order would the agent be entitled to a commission on the maximum? We cannot think so.

We are of the opinion that the oral statements were competent and that the trial court placed the correct construction upon this contract.

The cases relied on by plaintiff do not justify a contrary conclusion.

In Lockwood v. Levick, 8 C. B. N. S. (Eng.), 603, 141 Eng. Rep. (F. R.), 1303, the agency contract expressly provided that the agent should have no duty beyond securing the orders. . He secured absolute orders. The principal accepted the orders, but was unable to fill them because of lack of machinery. The purchaser was able and willing to take the goods. It was only because of the principal’s breach of contract that the goods were not delivered.

It is not suggested that either the defendant or Curtiss-Wright Corporation violated any term of the contract between them negotiated by the plaintiff.

In Davy Pocahontas Coal Co. v. Kaylor, 118 Va., 296, 87 S. E., 549, the agency contract contained in a letter authorized Kaylor to “close with” the buyer on certain terms, for which he was to receive a commission of five cents per ton for “obtaining this business.” The court said: “There is no doubt that Kaylor secured the business referred to in this letter, but for some reason the company did not furnish the coal, and no sufficient reason for its not having done so appears in this record.”

In the ease at bar no unconditional order was obtained, and the fact that the buyer exercised its right to cancel furnished an entirely valid reason, in fact a perfect reason, for discontinuance. The business relation ceased according to the terms of the contract, and without fault on the part of either buyer or seller.

In Vellore S. S. Co., Limited, v. Steengrafe, 229 F., 394, recovery was sought of a commission for obtaining a charter of a British steamship for four and one-fourth years. The case was disposed of on demurrer to an answer in which the defendant alleged that the charter was nullified because of war between Great Britain and Germany. The provision which the court construed provided that “A commission of * * * payable * * * upon the signing” of the charter. Clearly, the commission was earned upon the signing of the charter. To decide the case before the court upon the authority of that case would be begging the question here presented.

In Meilink Steel Safe Co. v. Vaughn, 141 F. (2d), 389, the court reviewed and affirmed a judgment for the agent. The facts showed that he was much more than a mere selling agent. He could be directed and assigned any duty within the discretion of the principal. The contract provided that his compensation should be measured by the amount of “business developed” in the territory to which he was assigned. The trial court found in favor of the agent that his commission should be based on orders obtained without regard to whether they had been filled. The Circuit Court of Appeals found that was a reasonable interpretation of the contract and the fact that government regulations prevented filling the orders did not prevent a recovery. However, there was no suggestion that the orders obtained contained any provision limiting the obligation of the buyer. It was reasonable to conclude that the parties considered absolute orders obtained as “business developed,” as the basis of the agent’s compensation, under the circumstances of that case. We are reviewing a judgment based on a different conclusion as to the intention of the parties under the circumstances of this case which are different from the circumstances in that case. We cannot say that the trial court’s .conclusion as to the intention of the parties is unreasonable.

In Suter v. Farmers Fertilizer Co., 100 Ohio St., 403, 126 N. E., 304, the court construed this language: “brokerage of one per cent, on this sale to be paid by seller to Eugene Suter as payments are received” in the contract of sale that the agent had negotiated. The absolute character of the contract of sale was not in dispute. The court held that the brokerage was earned upon the signing of the contract, that only the payment to the agent was deferred until the principal had received payment, and that as its failure to receive payment was the result of its own subsequent action, and not because of any provision in the contract negotiated, the plaintiff was entitled to recover.

The characteristics that distinguish the case at bar are the words used and the circumstances under which they were used, particularly the circumstances that to their knowledge at the time, the orders would provide for termination without fault before all or any of the material had been delivered.

As already stated, we believe that the court placed the right interpretation upon the words and actions of the parties. Certainly, we would not be justified in disturbing its finding.

Some question has been raised as to the sufficiency of the finding to support the conclusions of law and the judgment. This is based on the assumption that the court, by referring to the date on the letter, fixed that as the date of the contract. It is true that the letter bearing that date is the memorial of the contract, but the evidence is that it was not accepted and did not become a contract until about two weeks thereafter. While it is the memorial, its meaning could be determined only in the light of all the competent evidence. And the court in its finding clearly stated the meaning of the written contract as to when the commission was earned.

Finding no prejudicial error, the judgment is affirmed.

Judgment affirmed.

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


author: Hornbeck, J. Nichols, J.

text:
    Luebkeman, Appellant, v. Luebkeman, Appellee.
    (No. 1828
    Decided February 1, 1945.)

      Messrs. Pichrel, Schaeffer & Ebeling, for appellant.

      Messrs. Beigel & Mahrt, for appellee.
   Hornbeck, J.

This is an appeal from an order of the Common Pleas Court, Montgomery county, Division of Domestic Belations, awarding the custody of the minor child of the parties, William Bichard Luebkeman, to William K. Luebkeman and Bertha C. Luebkeman, the paternal grandparents of the child. The custodial order was a part of the decree of the court' granting a divorce to the plaintiff from the defendant, and awarding another minor child of the parties, Marlene Evelyn, to the plaintiff, the mother of the child. The decree makes no specific finding that either party to the divorce action is an improper person to have the care, custody and control of the minor, William Biehard Luebkeman.

The errors assigned are that the custodial order is contrary to law, is not sustained by sufficient evidence and is against the weight of the evidence.

At the outset, it should be said that this court is always hesitant to interfere with the judgment of a trial judge as to the custody of young children because he has a better advantage than we in that he has personal touch with the parties. So in this case, if upon this record we can find any authority of law upon which the order of the trial judge, who has had a wide and varied experience, may be supported, we would be reluctant indeed to vacate the decree which he has made.

The jurisdiction, judgments and orders of the trial court in divorce, alimony and custodial proceedings are controlled by statute. If the court is invested with chancery power it is such only as is declared by statute. Varsey v. Varsey, 25 C. C. (N. S.), 229, 26 C. D., 385. No claim is made by the defendant, appellee herein, that the court had any authority, as to the order here under consideration, over and beyond that to be found in the General Code. It thus becomes necessary to examine the controlling statutes.

Under Part Second, Title VI, Domestic Relations, are three chapters, (1) Husband and wife; (2) Apprentices; and (3) Infants, and under the third chapter is found Sections 8032 and 8033, General Code. Section 8032 provides in part that:

“When husband and wife * * * are divorced and the question as to the care, custody and control of the offspring of their marriage is brought before a court of competent jurisdiction in this state, they shall stand upon an equality as to the care, custody and control of such offspring, so far as it relates to their being either father or mother thereof.”

The next section, Section 8033, is controlling of the question presented on this appeal and provides in part:

“Upon hearing the testimony of either or both of such parents, corroborated by other proof, the court shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which would be for their best interests, * * *. If upon such hearing it should be proved that both parents are improper persons to have the care, custody and control of their children, in its discretion, the court may either designate some reputable and discreet person to take charge thereof, * * (Emphasis ours.)

The meaning of this section is plain and in conjunction with Section 8032, General Code, it appears that, primarily, the parties are on an equal footing with respect to the right to the custody of their minor children. Within this limitation the court will take into account that which would be for the best interest of the children. Unless and until the court finds that both parents are unfit persons to have the custody of their children the court may not award their custody to any other person, even though of opinion that the best interest of the children would be subserved by so doing. See 27 Corpus Juris Secundum, 1162, 1168.

It is probable that, as a prerequisite to an order awarding a • child to one other than its parents, the journal entry should recite the finding of the unfitness of the parents to have the custody of their child. However, if we indulge the presumption that the order of the trial judge is valid and is predicated upon proper and necessary findings, then we would be required to say that the record does not support a finding of the unfitness of the parties to have the custody of their children. The fact that one child was awarded to the mother tends strongly to overcome any conclusion that she is an unfit person, nor does the record justify such determination.

Counsel for plaintiff, appellant herein, insists that the finding of the court was tantamount to a determination of the unfitness of the father. We do not accede to this conclusion.

Defendant cites two cases, In re Taylor, 19 N. P. (N. S.), 438, 26 O. D., 596, and Graviess v. Graviess, 7 C. C. (N. S.), 135, 18 C. D., 26, to support the proposition that the welfare of the children is the controlling factor. These cases support that contention only to the extent that such determination be made as between the parents and do not extend the right to apply that principle to support an award of the custody to a third party. We know of no pases wherein an award of custody of children to one other than a parent has been supported unless predicated upon the essential finding of the unfitness of the parents to have the care, custody and control of their children as provided by Section 8033, General Code.

The judgment will be reversed and cause remanded.

Judgment reversed.

Geiger and Nichols, JJ., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.

Nichols, J.

Somewhat reluctantly I concur in the judgment of reversal in this case.' Under Section 8032, General Code, the parents shall stand upon an equality as to the care, custody and control of their offspring, so far as it relates to their being either father or mother thereof.

In my view of the language of this section, the Legislature simply intended that the sex of either parent would not give one parent any greater right to the custody than the other. The provisions of Section 11987, General Code, seem in a measure to be in conflict with the provisions of Section 8033, General Code. Section 11987, General Code, is the older of the two and provides that in granting a divorce and dissolution of the marriage, the court shall make such order for the disposition, care and maintenance of the children, if any, as is just. The only limitation upon the court under this section is that the order shall be “just.” It is this language that has given rise to the statement in many opinions that the court sits as a court of chaneery in awarding the disposition of the children of divorced parents.

In Breisach v. Breisach, 37 Ohio App., 34, 173 N. E., 317, the court says in the opinion:

“There seems to be a wide discretion reposed in the trial court in providing, in divorce cases, for the care and maintenance of children; but the order must be just. ’ ’

In Schwalenberg v. Schwalenberg, 65 Ohio App., 217, 29 N. E. (2d), 617, in an opinion by Phillips, J., concurred in by Judge Carter and myself, the Court of Appeals of the Seventh Appellate District states:

“It is conceded by both parties that where the custody of a child is in dispute and the parents cannot agree thereon, the welfare of the child is of the paramount consideration.”

Both parents were proper in that case.

In Godbey v. Godbey, 70 Ohio App., 450, 44 N. E. (2d), 810, in an opinion by Matthews, J., the Court of Appeals for Hamilton county says:

“By Section 8032, General Code, the parents are placed upon an exact equality as to the custody of the children. Neither is given by law a superior claim to custody, and the welfare of the child is the sole test by which the issue is determined. 14 Ohio Jurisprudence, 549, Section 144 et seq.
“It is clear, therefore, that unless the mandate of this statute is so compelling as to supersede this long-established rule, the trial court in the exercise of a sound discretion could award the child’s custody to either the mother or father, or to neither, dependent entirely upon his determination of what would be for the welfare of the child, under all the circumstances, and the child’s preference would be just one such circumstance, but not necessarily the controlling one.”

A strict reading of the provisions of Section 8033, General Code, would seem to be in conflict with the provisions of Section 11987, General Code; would seem to' limit the power of the court to award the custody of' offspring to the parents, since that section provides that “the court shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which would be for their best interests, * *

In the opinion written by Judge Hornbeck herein, this language is given compelling force since it is not definitely ascertainable from the order made by the Court of Domestic Relations that either parent is unfit to have the custody of the children.

The very fact that the trial court did not give both children to the mother indicates to me that the court did not consider the mother a proper person to have the custody of both children. It is quite conceivable that a mother could furnish an adequate and proper home for one child but be utterly incapacitated from earing and providing for two children, so that the best interest of the children would not be conserved by awarding both of them to her. It is also conceivable that the trial court took into consideration the fact that the marriage relation between the parties had been dissolved and that the father would not at the time be capable of providing proper care for either child, being without a wife in his home.

It must be kept in mind that the father is not making complaint because the trial court awarded the custody of one of these children to his parents. The trial court doubtless gave consideration to the fact that the father would naturally reside with his parents after the dissolution of the marriage relation between the parties, and evidently found the grandparents were the proper persons to have the custody of one child. In strict compliance with the provisions of Section 8033, General Code, it may have been more proper for the trial court to have awarded the custody of the hoy to the father hut designating that the father’s parents would look after its welfare until the future order of the court.

The judgment of reversal in this case will give the lower court opportunity to make a proper order in conformity to what I believe was the intention of that court in the first instance, and for that reason alone I am concurring in the judgment of reversal, as I do not give to the language of Section 8033, General Code, the compelling effect which Judges Hornbeck and Geiger have given.

I note that in Blaisdell v. Blaisdell, 7 Ohio Law Abs., 685, the Sixth District Court of Appeals allowed the children to remain with the maternal grandparents at Hudson, Michigan, the children having been originally awarded to the mother and it appearing that the mother at time of modified order lived with her parents. In that case, as in this, there was no proof that either parent was unfit or-improper to have their custody.

I have read with interest the very able article of Judge Weinman of the Common Pleas Court of Jefferson county, Ohio, published in Yol. X, No. 5, Law and Contemporary Problems, School of Law, Duke University, in which the judge very properly, I believe, arrives at the conclusion that the welfare of the child is of the paramount consideration of the court in awarding the custody of children of divorced parents.


author: Miller, J.

text:
    Reeves, Appellee, v. The Joe O. Frank Co., Appellant.
    (No. 635
    Decided April 30, 1945.)

      Mr. Wilbur D. Spidel, for appellee.

      Messrs. Mar chal é Tillman, for appellant.
   Miller, J.

This is an appeal on questions of law from the Court of Common Pleas of Darke county, Ohio, wherein a judgment in favor of the plaintiff, appellee herein, was rendered on the verdict of the jury. The substance of the errors complained of consists of the failure of the court to instruct the jury to return a verdict, at various stages of the trial; the failure of the court to sustain the motion for a new trial and render judgment for the defendant, appellant herein, notwithstanding the verdict; and that the verdict of the jury is against the manifest weight of the evidence.

There is also an assignment for misconduct of counsel for the plaintiff in examining witnesses and asking improper questions solely for the purpose of informing the jury that the defendant was insured in a casualty company. Concerning this assignment of error counsel for defendant have made no reference in their brief, and we are of the opinion that this objection is not well taken. In qualifying the jury each juror was asked whether he was the owner of any stock in an insurance or casualty company, and the record discloses that one of the jurors was challenged for this reason.

The record further discloses that one of the defense witnesses testified that he conducted an investigation of the accident on behalf of an insurance company. This fact was disclosed by one of the defense witnesses, and it can in no way reflect upon the conduct of counsel in the case.

The action was one for damages brought by George 0. Reeves, the plaintiff, as the result of injuries he sustained in a collision between an automobile driven by himself and the rear end of a truck owned by the defendant, The Joe 0. Prank Company, a corporation. The collision took place on October 29, 1943, at or about 6:25 p. m., on state route No. 71, approximately two miles southeast of Greenville, in Darke county, Ohio. State route No. 71 at the place of collision is a two-lane highway of black top construction, 20 feet wide, and there is a level berm, approximately 10 feet wide, on each side of the road. The road is level and straight and was free from any obstruction except that of the defendant’s truck, the exact position of which was in dispute.

The defendant asserts that the left wheels- of the truck were parked two or three feet on the traveled portion of the highway, and that the right side of the truck was on the berm of the road. The plaintiff claims, however, that the entire truck was parked off of the highway and on the berm of the road. The automobile driven by the plaintiff was being operated in a northwesterly direction on the highway toward Greenville, Ohio, and just prior to the collision was being-operated at a speed of 30 to 35 miles per hour. Its headlights were lighted and dim at the time of and prior to .the collision.

The defendant’s truck was a 1936 Chevrolet, ton and a half, flat bed truck, loaded with 21 empty barrels held in place by ropes, tied around them. The driver of the truck had stopped for the purpose of adjusting the ropes around these barrels. There is a conflict in the,testimony as to whether the truck was in motion at the time of the collision. The defendant contends that the truck was stationary, while it is the claim of the' plaintiff that the truck suddenly - pulled onto the highway and into and across the traveled portion of the road and immediately in front of the plaintiff’s automobile. The collision occurred on the right side of the highway, the right front of plaintiff’s automobile colliding with the left rear end of the truck.

There was an automobile approaching from the opposite direction and the plaintiff had dimmed his lights -in conformity with the requirements of Section 6307-88 (b), General Code. Just as these two automobiles had passed each other, and while the plaintiff’s lights were still dimmed the truck appeared in front of the plaintiff about 25 feet away. The plaintiff testified that as this automobile was approaching him he could see the entire highway, and that .there was no obstruction between him and the approaching automobile. The plaintiff was asked the following questions:

,“Q. How far could you see? A. I made it very clear . that between myself and the lights of the approaching car I could see him from the time that he came over the brow of the hill at McMiller’s.
“Q. You could see the lights? A. I could discern anything between those lights and mine that was on the highway that would be silhouetted against these lights.
“Q. You didn’t see this truck until you were 25 feet from it? A. I didn’t see that car until I was passing the car when it approached. The truck wasn’t on the highway before that.
“Q. It wasn’t on the highway until you were 25 feet away? A. That truck wasn’t upon the highway until I was 25 feet' from it.
“Q. How far could you see the highway at that time with your lights? A. Normally with dim lights, or lights deflected down for approaching traffic you could probably see sixty to seventy-five feet ahead. With lights on the upper dim you could probably see within the vision of your lights at least couple hundred feet.
“Q. Could you stop your automobile within the vision that you could see at that time? A. Why definitely anything that was there to see.”

Testifying further, the plaintiff said:

“I know up until the time that the car was almost directly opposite me in passing me that there was nothing between him and myself. However, as soon as the car flashed by and I passed on, that instant this truck loomed up across the road in front of me. It was merely a brief moment. I had no chance to avoid the car to swerve or effectively apply my brakes or anything else. He merely came ont of nowhere and was suddenly across the road in front of me.”

The evidence shows that the truck tracks ran diagonally across the road from the point of impact. The truck came to rest after the collision in a diagonal position, with the front wheels on the berm'across the road and the rear wheels extending to about the middle of the highway. There was some conflict as to whether the truck lights had been lighted prior to the collision, but this is not important. The evidence showed that the truck was in gear after the collision and that the ignition was on.

The driver of the truck.testified that he was not in the cab, or just getting in at the time, while several witnesses testified that approximately five minutes elapsed after the accident before the cab door was opened, and then the driver fell out of the cab onto the ground. The record discloses that the truck was eight feet wide and that there was ample room for the truck to park completely on the berm.

The defendant attempts to invoke the assured clear distance ahead statute on the theory that the truck was parked on the main traveled portion of the highway and did not pull across immediately in front of the oncoming automobile. We have quoted quite extensively from the record to show that there was a dispute as to the location of the truck just prior to the collision. This, we believe, was a question of fact for the jury to determine, and the court was correct in submitting it to the jury. The assured clear distance rule does not apply when a discernible object obstructing the path or line of driving suddenly enters within the clear distance ahead, and into the path or line of driving, suddenly cutting down or lessening the assured clear distance ahead, without the fault of the plaintiff.-

The court below instructed the jury fully as to the law and the special instructions requested by the defendant and permitted the jury to determine the facts in this case.

The case of Smiley v. Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, is one of the leading cases under the assured clear distance ahead statute. The composite rule as set forth in that case reads:

“The composite rule then may be stated as follows: To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a' discernible object obstructing his path or line of travel, unless such assured clear distance ahead is suddenly cut down or lessened, without his fault, by the entrance within such clear distance ahead and into his path or line of travel of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith. Spencer v. Taylor, 219 Mich., 110, 188 N. W., 461; West Construction Co. v. White, 130 Tenn., 520, * * * 87 A. L. R., 898.”

In applying the rule laid down here it is of vital importance whether the truck was parked on the main portion of the traveled highway or whether it was parked completely on the berm and then started up and cut across the highway in front of the plaintiff. If the latter was the case, then the assured clear distance rule would not apply and there would be no violation of Section 6307-21, General Code, by the plaintiff.

The latest pronouncement of our Supreme Court seems to be that made in the case of Glaseo v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210, decided on July 26, 1944. The first paragraph of the syllabus ithat case reads as follows:

“In an action for personal injury where the jury determined that the negligence of the defendant was the sole proximate cause of the injury (even though plaintiff admittedly was guilty of, negligence) and judgment was entered upon such verdict, on appeal on questions of law alone, a Court of Appeals is without authority to reverse such judgment and to render final judgment in favor of the defendant, where the evidence is such that reasonable minds could come to different conclusions upon the question of proxima-te cause.”

If all the evidence of the plaintiff is considered in its most favorable'light to the plaintiff, as the court must do in considering a motion to direct a verdict, plaintiff’s evidence shows that the assured clear distance ahead rule does not apply and that this case falls within the excepted class of cases.

The defendant makes reference to the case of Marchal, Admr., v. Frankman, 41 Ohio Law Abs., 336, 58 N. E. (2d), 679, decided by this court, and being case No. 612 on the docket of the Court of Appeals of Darke county, Ohio. The reviewing court held in that case that Frankman, the defendant, was guilty of negligence as a matter of law in striking a huge road roller, a discernible object moving at the speed of some two or three miles an hour on the main traveled portion of the highway. In that case, Frankman stated that he first observed the road roller just at the moment he collided with it. He could not give definitely the position of the road roller as to the center line of the road, but it ivas to the right of the center line. The instant case is distinguishable on the facts in that much of the evidence shows that the motor truck was parked off of the main traveled portion of the highway, and pulled onto the highway immediately in front of the plaintiff’s automobile.

The defendant urges further that the plaintiff was guilty of contributory negligence as a matter of law in that his speed did not conform with the requirements of Section 6307-89, General Code, as he was traveling in excess of twenty miles per hour. We are of the opinion that this section of the Code has no application in the case at bar, for the reason that such section is applicable to vehicles which are lighted with lighted lamps capable only of revealing persons and substantial objects seventy-five feet ahead. The plaintiff’s automobile was not equipped with such lights.

The evidence in this case was undisputed that the automobile of the plaintiff was equipped with good headlights which would show objects more than 200 feet ahead; that it was equipped with dimmers and was being operated in compliance with Sections 6307-76 and 6307-88, General Code, at the time.

With reference to the exception to the general charge to the jury, which is also complained of as one of the errors, counsel for. the defendant make no comment in their brief, and we believe such charge contains a correct statement of the law.

The verdict of the jury is, we believe, in accord with the evidence adduced, and is not against the manifest weight of the evidence.

The judgment of the trial court is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Geiger, J., concur.


author: Doyle, J.

text:
    Meier et al., Appellees, v. Peirano et al., Appellants.
    (No. 6445
    Decided January 15, 1945.)

      Mr. John M. McCaslin, for appellees.

      Miss Jule Laughlin, Mr. Bert II. Long and Mr. Milton M. Bloom, for appellants.,
   Doyle, J.

There is presented to this court for review a judgment of the Court of Common Pleas of Hamilton county (based upon a verdict of a jury), which set aside and invalidated a paper writing which purported to be the last will and testament of Louis S. Peirano, deceased. The jury found and the judgment reflected that the deceased was without the required mental capacity to dispose of his property by will. The question decided was the sole issue in the case.

No attempt will be made to discuss the claimed errors in the order presented. Attention will be directed, however, to some of them which we believe dispositive of the appeal.

1. The appellants assert that the trial court erred in excluding from the consideration of the jury the testimony of Dr. Joseph DeCourcy, who had treated the deceased for years prior to the making of the will, and up to and including his last illness, that the deceased was a man of sound mind. A part of the testimony follows:

££Q. Now, doctor, from your contact with Louis Peirano over these years, the visits that you have described, I want you to state whether or not, in your opinion, he was a man who had sufficient mind and memory to understand the nature of the business in which he was engaged? * * *A. Yes, sir. .
££Q. I will ask you to state whether he.had sufficient mind and memory to comprehend generally the nature and extent of his property? * * * A. Yes, sir.
££Q. And whether he had sufficient mind and memory to hold in his mind the names and identity of those who have natural claims on his bounty? * * * A. Yes, sir.
££Q. And I will ask you next, doctor, whether he had sufficient mind and memory to be able to appreciate his relation to the members of his family? * * * A. Yes, sir. * * *
££Q. Doctor, in your opinion, was he a man of sound or unsound mind? * * * A. I would say a sound mind. I have no reason to believe he was of unsound mind.”

The record reveals that the doctor had never treated the patient for nervous or mental disorders and that he had observed his patient frequently in a nonprofessional capacity. On this point I here give several of the many statements of the doctor which rer veal his general observation of the deceased:

“Oh, he would just come in, talk about the weather and different things. He used to be around that neighborhood quite a bit for some reason or other, I don’t know why. I frequently met him on the street.”
“Q. Did you ever discuss current events with him or any matters of that kind? A. Yes, sir, I would say in the general course of conversation.”

Without going into further detail, it may be properly said that the doctor knew his patient well, not only in a professional but in a nonprofessional capacity.

The trial court seemed to predicate the order of exclusion upon provisions of the General Code of Ohio and the following question and answer of the doctor on cross-examination:

“Q. Other than your professional contacts and communications with him, that is, physical or oral communications with him in the relationship of physician and patient, you would not have — if you eliminated that — you would not have a sufficient basis to express an opinion as to his soundness or unsoundness of mind, would you? A. No, I would say no.”

Section 11494, General Code, in part provides:

“The following persons shall not testify in certain respects:
“1. * * * a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient. * * *”

The above statute has been construed to mean “that a communication by the patient to the physician may be not only by word of mouth but also by exhibiting the body or any part thereof to the physician for his opinion, examination or diagnosis, and that that sort of communication is quite as clearly within the statutes as a communication by word of mouth.” Ausdenmoore et al., Exrs., v. Holzback, 89 Ohio St., 381, 106 N. E., 41. And, see, Baker v. Industrial Comm., 135 Ohio St., 491, at p. 496, 21 N. E. (2d), 593.

It would appear from the wording of the statute that, when the words “in that relation” were used, the Legislature intended to follow the generally accepted doctrine that the “communication” must be made to the doctor in Ms professional capacity at the time. And the professional capacity at the time has to do only with communications which have a relationship to an examination, diagnosis or treatment of the particular malady or maladies which brought about the relationship. The relationship in the instant case had no connection with a mental disorder.

In support of the conclusion that the evidence is admissible, reference is made to a decision of the Supreme Court of Ohio. In that case an insurance company sought to show that an insured was not “in sound health” at the time of the issuance of an insurance policy upon her life, by offering as its witness a doctor who had examined and treated the insured. I here quote, from the opinion (at p. 620), the evidence there under consideration:

“Q. From your treatment of Mrs. Sarah Howie, and the facts you have testified to, what do you say was her state of health * * *? A. She was not in sound health on that day. Q. You may state what was her condition on that day. Objected to; objection sustained. Q. What, if anything, did you prescribe for her, if you remember * * *1 Objected to; objection sustained.”

The opinion then observes:

“In each instance the defendant company by its counsel excepted, and stated what the answer would he, and the same was in each instance pertinent and competent. The evidence so offered was not a communication by the patient to the physician, but was as to the independent knowledge of the physician, and was clearly competent, and the court erred in excluding the same.”

Metropolitan Life Ins. Co. v. Howle, 68 Ohio St., 614, 68 N. E., 4.

It appears in the above case that the statute was invoked by the objector, and that it was in identical form with the one in force at the time of the present controversy. It further appears that the doctor was one engaged by the insured and not by the insurance company.

In further support of our conclusion, the following cases are cited: Bahl v. Byal, 90 Ohio St., 129, 106 N. E., 766 (decided subsequent to Ausdenmoore et al., Exrs., v. Holzback, supra), and Heiselmann v. Franks, 48 Ohio App., 536, 194 N. E., 604.

The second paragraph of the syllabus of Bahl v. Byal, supra, is in the following terms:

“2. It is competent for the physician of a testator to express an opinion as to the actual condition of his patient’s mind, founded on his study and observation of the testator while in professional attendance on him at the time and prior to the date of the will, and whether he was capable of comprehending large and complicated business propositions or the distribution of a large estate.”

In terminating the discussion of this assignment of error, it is observed that if the deceased had communicated with the doctor for examination, diagnosis or treatment of a mental disorder, the privilege might be invoked, but that when the only purpose of such communication was for examination and treatment of bodily ailment, and related in no way to a mental condition, the privilege cannot be invoked by the contestants in a will contest case who seek to disprove the capacity of a testator to make a will.

On this general subject see VIII Wigmore on Evidence (3rd Ed.), Section 2380 et seq.

2. The testator left his property in the challenged will to his three nephews, who were residents of Columbus, Ohio, and excluded his two nieces, who are the present contestants. The above-mentioned five nephews and nieces were his only next of kin.

The will provided:

“All of the property of whatsoever kind and de'scription which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath absolutely and in fee simple in equal portions to my three nephews, Stephan Peirano, Frank L. Peiibl.no and Walter Peirano, who are all at this time residents of Columbus, Ohio, and to the survivors or survivor of them at the time of my death.”

It is admitted that the given name “Walter” is an error and that the thi-rcl nephew’s name is Albert.

In view of this error in the given name, the proponents requested and the court refused to charge, before argument, the following proposition of law, to which exception was taken:

.■ “I charge you as a matter of law that it is not the actual remembering of the names of those who have natural claims upon one’s bounty, but the capacity and ability to remember such persons, and if you find from all the evidence that Louis Peirano, at the time he drew ■his will, did possess such capacity to remember such persons, then the said Louis Peirano was possessed of testamentary capacity in such respect.”

However, at the request of the contestants, and over the objection of the proponents, the following charge was given to the jury before argument:

“Members of the jury, I charge you that according to the law of Ohio, mental capacity sufficient to en-table a person to make a will only exists when the person making a will has sufficient mind and memory—
“First: To understand the nature of the business in which he is engaged;
“Second: To comprehend generally the nature and extent of his property;
“Third: To hold in his mind the names and identity of those who have natural claims upon his bounty; and
“Fourth: To be able to appreciate his relation to the members of his family.
“If you find from all of the evidence that Louis S. Peirano, on April 24, 1943, did not have sufficient mind and memory to meet any one or more of the foregoing four tests, then he would be deemed not to have testamentary capacity, and it would be your duty in such event to render a verdict for the plaintiffs, holding the paper writing submitted in evidence was not the. last will and testament of Louis S. Peirano.” (Italics ours.)

It is apparent from the foregoing that the case of Niemes v. Niemes, 97 Ohio St., 145, 119 N. E., 503, was-the subject of interpretation and application by counsel and the court.

The fourth paragraph of the syllabus of this famous will ease provides:

“4. Testamentary capacity exists when the testator has sufficient mind and memory:
“First, to understand the nature of the business in which he is engaged;
“Second, to comprehend generally the nature and extent of his property;
“Third, to hold in Ms mind the names and identity ' of those who have natural claims upon his bounty;
“Fourth, to be able to appreciate his relation to the members of his family. ’ ’

While the Niemes case holds that one possesses testamentary capacity who has sufficient mind and memory to he able to meet the four tests specifically set forth, it does not hold, nor does it logically follow, that one does not possess testamentary capacity who has forgotten the correct first name of a.nephew, but at the same time has properly designated him as one of his only three nephews “who are all at this time residents of Columbus, Ohio.” A valid bequest may be made to the members of a family of a person without specifically designating each individual. And in the instant case the mere designation of his only three nephews would have been sufficiently definite and certain without attempting to name them.

In view of the facts of this case and the giving of the contestants’ request to charge before argument, We determine that it was prejudicial error not to have • given the request of the proponents. The mere failure to correctly remember a given name is not sufficient to create the incapacity; and especially is this true where the testator did remember the surname of the beneficiary and his address, as was the case here.

While a temporary failure of memory might exist, nevertheless the solid power of understanding may remain. The law looks primarily to the competency of the understanding. Bearing in mind these legal concepts, the charge requested by the proponents became especially pertinent to explain to the jury the legal significance of the Niemes case.

As we view the charge given on this subject at the request of the contestants, the court, in the giving thereof, went far beyond the holding in the Niemes case. It is not correct to say that “mental capacity sufficient to make a will only exists” when the four tests are met, and then to say in the same charge that testamentary capacity does not exist if the testator ‘ ‘ did n'ot have sufficient mind and memory to meet any one or more of the foregoing tests.” The effect of the charge as given under the circumstances of this case, was to lead the jury to believe that, if a testator could not remember the given name of one of his beneficiaries, although he did properly remember the surname, address and relationship, this fact was sufficient to invalidate the will. Of course such is not the case. The fact is only an item of evidence to be considered in determining' mental capacity. It would be absurd to claim that the mental capacity of a testator is controlled by the testator’s inability to remember the given name of one' of his beneficiaries.

3. It is alleged that the court erred in failing to properly charge the jury on the burden of proof.

The rule is:

“In an action to contest a will, the jury should be instructed that, before it would be justified in setting aside a will, the evidence tending to invalidate the will must outweigh both the evidence tending to sustain the will and the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of the testator. Instructions should not limit the determination of such issue to the evidence introduced by either party exclusively, but the issue should be determined by the preponderance of all the evidence adduced in the case, regardless of which party may have called a witness or adduced the evidence.”

Van Demark v. Tompkins, Exr., 121 Ohio St., 129, 167 N. E., 370.

And further:

“In a will contest, by virtue of the statute, the burden of proof is cast upon the contestant of the will and such burden never shifts from him # *

Kennedy, Exr., v. Walcutt, 118 Ohio St., 442, 161 N. E., 336.

While the charge given by the court did not in terms pronounce the above rule, we do not find that prejudicial error exists in the respects claimed. In a retrial of this case, the above rules should be carefully followed, as they set forth the last pronouncement of the court of last resort in this state on the subject.

4. We do not find that the' court erred “in overruling defendants’ motion for a'directed verdict at the conclusion of the entire case,” or “in overruling defendants’ motion for a judgment in their favor notwithstanding the verdict of the jury.”

We are of the opinion that the errors noted above were prejudicial and tended to influence the jury into returning a verdict in favor of the contestants. It is the opinion of the writer of this opinion that the evidence in the record fails to justify under any circumstances the verdict rendered. However, in view of the fact that the case must be retried, we find it unnecessary to pass upon the remaining charges of error, which include the weight .of the evidence.

The judgment is reversed and the cause rémanded.

Judgment reversed and cause remanded.

Stevens, P. J., and Guernsey, J., concur.

Stevens, P. J., and Doyle, J., of the Ninth Appellate District, and Guernsey, J., of the Third Appellate District, sitting by designation in the First Appellate District.


text:
    Petrey, Appellee, v. Liuzzi et al., Appellants.
    (No. 6500
    Decided April 16, 1945.)

      Mr. William Isaacs and Mr. B. Wm. Heiclhamp, for appellee. 1

      Mr. Oliver W. Hardin and Messrs. Brumleve, DeCamp & Wood, for appellants.
   Matthews, J.

This is an appeal from a judgment upon a verdict in favor of the plaintiff in an action for damages on account of personal injuries.

There is no dispute that the plaintiff was a lessee and occupant of rooms on the first floor of a dwelling house owned by the defendants. It was a two-story building with attic. The second story was occupied by another tenant and the attic had been used as living quarters 'while plaintiff occupied the first story, but at the time in question h§re it was not so used.

On the first floor there was a hallway leading from the front toward the rear and at the rear end of the hall there was a door opening onto a stair leading down to the cellar.

There is substantial evidence that this hall, stair, and cellar were for the use of all the tenants and remained under the control of the defendants as the owners and lessors. ■

The plaintiff alleged and testified that she had occasion to go to the cellar and that while proceeding down the stairs, fell from some point on the stairs to the cellar floor and received the injuries of which she complains. In her petition, she describes the incident as follows:

“That she opened the cellar door and found that there .was no light in the cellar; that she then attempted to descend the stairs, feeling her way and fell and was thrown to the bottom of the steps.”

This was followed by the allegation:

“Plaintiff states that the direct and proximate cause of her injuries was the negligence and carelessness of the defendants in not properly lighting the cellar and stairway; and that this negligence was in violation of ordinance No. 1710 of the Code of Ordinances of the city of Cincinnati, Ohio, which was at all times in full . force and effect and which provides as follows:
“ ‘No. 1710. Every stairway, corridor, passageway or other means of egress including exterior open spaces to or through which exits lead shall be kept adequately lighted at all times during which a floor served by such means of egress is occupied. Artificial lighting shall be provided wherever natural light is inadequate to see exit signs or other details.’
“Plaintiff further states that the defendants were, careless and negligent in not providing adequate lighting for the stairway thereby violating the provisions of ordinance 1586-D of the Code of Ordinances of the city of Cincinnati, Ohio, which was at all times in full force and effect,' which ordinance provides as follows:
“ ‘All portions of group H buildings, including basements and cellars shall be provided with adequate artificial illumination for the intended use of each room, companionway or hall. ’
“Plaintiff states that this negligence on the part of the defendants was wilful in that they had deliberately removed the bulbs and turned off the current in the cellar, and that this condition was so serious as to constitute a nuisance.”

After the court overruled a demurrer, the defendants filed a general denial.

As the plaintiff was the only witness who testified in support of her cause of action, it becomes necessary only to analyze her testimony to reach a conclusion as to whether error intervened in overruling the defendants’ motion for an instructed verdict and for judgment. In response to the question as to what happened, she said:

“A. I had been running around all day, I had a colored man cutting wood for me and he had it in the back part, that is where the doors are, and he carried it all back and put it in the cellar — He called to me after he got the wood in for me to look at it and before I paid him, and I said, all right, I will be down, and I got a handful of matches and started and I struck a match and it went out and the next thing I come to myself I was at the bottom of the steps and he caught hold of me and that was the last—
“The court: You started down and struck a match; did the match continue to burn all the way down? A. No, it went out and I fell to the bottom of the steps and I never knew no more until I was in the hospital. * * * J ?

The record does not disclose what hour of the day this occurred, but it is manifest from the facts that it occurred during the daytime.

There was evidence that the cellar was wired for lighting with electricity, but that sometime before the accident the defendants had removed the bulb and had the current turned off; and that the plaintiff had known this had been done for several months prior to the accident.

Two ordinances of the city of Cincinnati were put in evidence. One ordinance required all portions of “group £H’ buildings, including basements and cellars ’ ’ to be provided with adequate artificial illumination for the intended use of each room, compartment or hall. The other required all means of egress to be adequately lighted, and the lights in hallways of certain types of buildings to be kept burning after sunset until midnight as to some and from sunset till sunrise as to others. These ordinances lacked probative value to impose a duty upon defendants, because the record fails to show upon whom the duty was imposed, and also failed to show that they were applicable to the time when and to the site where the accident occurred.

In 24 Ohio Jurisprudence, 934, the law is stated that:

“The owner of an apartment house being rented to several tenants, with halls and stairways in common, owes no common-law duty to keep such, halls and stairways lighted during the night season. The mere allegation that halls and stairways were in a state of darkness at the time of the accident, in the absence of a duty on the part of the owner to keep them lighted, is not actionable negligence.”

If no duty exists to maintain lights in the night season, certainly there is no common-law duty to maintain them in the daytime.

Reliance is based on Section 1027, General Code, to' impose a duty to maintain lights. • That section is found in Chapter 12 of Division II of Title III of Part First of the General Code. Title III is confined to the organization of the executive department and chapter 12 relates to the office of chief inspector of workshops and factories. Section 1027, General Code, imposes certain duties upon the owners and operators of shops and. factories, and, among other duties, requires them to light the hallways, rooms, and all other places wherein sufficient daylight is not obtainable. It is contended that this two- or three-family dwelling comes within the definition of a shop or factory contained in Section 1002, General Code. That section provides that for the purposes of that chapter the terms shall include manufacturing, mechanical, electrical, mercantile, art, and laundering establishments; printing, telegraph, and telephone offices, railroad depots, hotels, memorial buildings, tenement and department houses.

It is possible that the statutory definition is broad enough to include a dwelling of this sort, but a reading of Section 1027, General Code, shows that its provisions were never intended to protect tenants from injuries occasioned in this way. It is expressly stated in the section that its requirements were imposed £<to prevent injury to persons who use or come in contact with machinery therein or- any part thereof.” The plaintiff was not injured by coming in contact with machinery.

Doster v. Murr, 57 Ohio App., 157, 12 N. E. (2d), 781, decided by this court, is cited as requiring a different construction. That case did not involve Section 1027, General Code, or require a construction of the meaning of the phrase “shops and factories.” It involved Section 1006, General Code, found in the same chapter, but expressly made applicable to tenement houses, apartments, and many other establishments, in addition to shops and manufacturing institutions. Its provisions were not limited to shops and factories. As it expressly applied to tenement houses and apartments, the only question presented was whether the evidence described such a structure. Indeed, Section 1006, General Code, does not contain the word factory, and, instead of it indicating that the definition of Section 1002, General Code, would cause “shops and factories” to include a dwelling, the contrary is true. It would seem to indicate that when the Legislature intended its provisions to extend to dwelling places, it used apt language and did not rely on the omnibus definition of Section .1002, General Code.

Assuming, however, that a duty to maintain a light rested upon the defendants either by ordinance or statute or both, we are of the opinion that the evidence fails to show that the failure to perform that duty caused the plaintiff’s injuries. The evidence is completely devoid of any circumstance that would lead the mind to conclude that the absence of lights caused her to fall. She was on the stairs with a lighted match in her hand. The match ceased to be ignited and she fell to the cellar floor at once. The mere extinction of the light could not have caused her to fall, and there is no other cause suggested. The cause of her fall is left entirely to speculation.

It is not left in doubt that the plaintiff with full knowledge that the defendants had not provided any way of lighting this stairway and that it was dark, proceeded to use the stairway, trusting to her ability to use it safely by means of light supplied by matches with which she had provided herself. Under such circumstances, it must be held that she was the author of her own misfortune.

In 24 Ohio Jurisprudence, 935 and 936, it is said:

“Negligence on the part of the tenant, which is a contributory cause of the damage, bars any relief against the lessor. Thus, a tenant cannot recover for an injury received through a defect in property under the control of the landlord, where the defect is as apparent to the tenant as to the landlord.”

It has been frequently held by the Supreme Court that a tenant or invitee who is injured by taking “a step in the dark” ordinarily has no cause of action. The bar to a recovery is usually phrased as contributory negligence. In the third paragraph of the syllabus to Flury v. Central Publishing House, 118 Ohio St., 154, 160 N. E., 679, it is said:

“The testimony of a plaintiff invitee, in an action for negligence, that from a lighted room he opened a closed metal-covered sliding door, was confronted with total darkness beyond the door, that he then stepped into such total darkness, to his injury,, without any knowledge, information or investigation as to what such darkness might conceal, raises an inference of negligence on his part which, in the absence of any evidence tending to refute such inference, will require a directed verdict for the defendant.”

If a step in the dark in ignorance of the conditions confronting him defeats recovery, it would seem that, for stronger reasons, entering a dark area with full knowledge of all the facts and surrounding conditions would preclude a recovery for injuries sustained by some failure to adjust to those conditions in order to insure safety.

Flury v. Cent. Publishing House, supra, and Kahn’s Sons Co. v. Ellswick, 122 Ohio St., 576, 172 N. E., 668, seem to be conclusive against a recovery in this action. Unlike Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683, at no place in the plaintiff’s testimony can be found any explanation of her fall, from which an inference could be drawn that she was in the exercise of due care. To so conclude would be a mere assumption just as it would be to conclude that her fall was caused by the failure of defendant to furnish light.

While the record requires that final judgment be entered for defendants, we take notice of an error in the charge that would require a reversal of the judgment in any event.

The plaintiff based her cause of action upon negligence of the defendants in not properly lighting the cellar and stairway, and then alleged that the condition created “was so serious as to constitute a nuisance.” This, however, did not enlarge the issue. By describing the default in one place as negligence and at another as a nuisance, did not create two defaults. Nomenclature is not decisive of the rights of the parties. However, counsel argue that the situation presented two issues for the jury and that, therefore, the two-issue rule applies. As there was but one issue— the default of defendants in not lighting the cellar and stairway — there is no basis for the application of the rule. Furthermore, as the error related to the measure of damage, it would affect all the issues no matter how many.

. After charging on compensatory damages, the court instructed the jury “that in addition, if you find there was wilful negligence you will add to those sums such sum as in your judgment will teach them a lesson not to do that again.”

Of course, if the defendants intended to injure the plaintiff by their act, it would have presented a case for the jury, in its discretion, to award punitive damages. But the wrongful act could not be both wilful and negligent. If the injury was intended, it would be wilful. If not intended, but, nevertheless, resulted from a wrongful act, it would be caused by negligence —that is, by a failure to use due care.

In 13 Ohio Jurisprudence, 241 et seq., it is said: .

“In accord with the general rule elsewhere, Ohio courts deny the recovery of exemplary damages for mere negligence or omissions of duty.”

Of course, if the default is wilful and manifestly a gross and reckless disregard of consequences, there is authority for the proposition that exemplary damages may be awarded, but that is not the kind of case presented by this record. At most, it shows a failure to perform a duty imposed by law.

Assuming that a charge of punitive damages would have been appropriate, there was manifest error in this charge in that it made it the duty of the jury to award punitive damages under given circumstances.

In 13 Ohio Jurisprudence, 242, it is stated:

“In Ohio, in accord with the well-established rule, exemplary damages are recoverable in no case, as a matter of right; their allowance is discretionary with the jury. The jury is not required to award exemplary damages, although they find that the defendant was moved by actual malice.”

For these reasons and for error in overruling the defendants’ motion for an instructed verdict and for judgment notwithstanding the verdict, the judgment is reversed and final judgment entered for the defendants.

Judgment reversed.

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


author: By the Court.

text:
    Shedenhelm, Appellee, v. Myers, Appellant.
    (No. 301
    Decided January 17, 1944.)

      Messrs. Carpenter & Carpenter and Messrs. Spitler é Flynn, for appellee.

      Messrs. Schroth & Schroth and Messrs. Hall & Naus, for appellant.
   By the Court.

This is an appeal upon questions of law and fact, from a judgment of the Common Pleas Court of Seneca county, in an action in which Adella M. Shedenhelm was plaintiff and appellant Ray C. Myers, was defendant. It is submitted to this court upon the motion of the appellee to dismiss the appeal upon questions of law and fact for the reason, as charged in the motion, that the court is without jurisdiction to entertain the appeal.

Under the provisions of Section 6, Article IY of the Constitution, the appellate jurisdiction of the Court of Appeals, that is, the jurisdiction to try appeals upon questions of law and fact, is limited to the trial of chancery cases, so the question to be determined upon this motion is whether the cause in which the appeal is taken is a chancery case within the meaning of the constitutional provision.

Whether a cause is appealable upon questions of law and fact is determinable solely from the pleadings. The right of appeal does not rest upon the sufficiency of the pleadings, however, but depends on the nature of the ease. 2 Ohio Jurisprudence, 87, 88, Appeal and Error, Section 42.

The pleadings in this case, from which such determination must be made, are the amended petition and amendment to the amended petition of the plaintiff, the answer thereto of the defendant, and the reply of the plaintiff.

In her petition the plaintiff avers:

That she was married to the defendant on August 29, 1928; that at the time the net financial worth of the defendant who was engaged in business in the city of Tiffin, Ohio, as an embalmer and undertaker was* less than $1,000; that in the years following the marriage of the parties and until the month of September 1938, the plaintiff assisted the defendant in the conduct of his business which grew and prospered; that on September 20, 1938, plaintiff instituted an action for divorce and alimony against the defendant in the Court of Common Pleas of Seneca county, Ohio, because of the wrongdoing and misconduct of the defendant; that shortly thereafter, she was induced and persuaded by the promise of the' defendant with reference to his future conduct, to discontinue and dismiss the action; that following the dismissal of the action by the plaintiff, it became impossible for the parties to longer live together as man and wife, because of the aggressions of the defendant; and that on March 4, 1939, the parties agreed upon an immediate separation and entered into a property settlement agreement which purported to adjust, settle and determine the rights of the plaintiff in the jointly accumulated property of the parties, by way of alimony and otherwise.

A copy of such agreement consisting of three pages is attached to the amended petition and marked “Exhibit A, page 1,” “Exhibit A, page 2” and “Exhibit A, page 3,” and made a part thereof.

It is further alleged in the petition that on March 20, 1939, the plaintiff fded an action for divorce in the Common Pleas Court of Seneca county, Ohio, being cause No. 24168, praying for a divorce from the defendant, restoration to her maiden name, and approval of the property settlement agreement; that on May 5,1939, the prayer of her petition was granted, she was divorced from the defendant upon the ground of extreme cruelty, was restored to her maiden name, and the alimony property settlement was approved by the court and made a part of the decree in that action; and that plaintiff was induced to enter into the property and alimony settlement agreement aforesaid on March 4, 1939, through the false and fraudulent representations of the defendant with respect to his then financial condition, which representations were made at that date and immediately prior thereto.

The primary representation pleaded by plaintiff in her petition with respect to the then financial condition of the defendant is that defendant falsely and fraudulently represented to the plaintiff that his net financial worth was $15,000 or less, when in truth and fact the defendant was worth $50,000 or an ámount substantially in excess thereof.

In support of this primary representation, the plaintiff in her amended petition pleads further specific and detailed false and fraudulent representations of the defendant with reference to his financial condition, and also pleads facts in detail showing that on the 4th day of March, 1939, the net worth of the defendant was $50,000, or an amount substantially in excess thereof instead of $15,000 or less, as represented by the defendant.

Plaintiff further avers that the property described by her as constituting the net worth of the defendant was accumulated solely through the joint efforts of the parties during their married life; that the defendant would never discuss business matters with her; that she had no means of knowing the true financial condition of the defendant on March 4, 1939, or shortly prior thereto, except through his representations; that she relied solely upon his fraudulent representations as in the amended petition set forth when she signed the agreement in question; that she first discovered the fraud practiced upon her by the defendant, on or about May 27, 1940; and that the alimony and property settlement in question is grossly inadequate and a fraud upon her marital rights.

Plaintiff further avers that defendant paid to her under the provisions of the purported contract, the sum of $6,000, and a payment was made to her to apply upon the purchase of an automobile; that defendant paid the further sum of $60 temporary alimony as provided by the purported contract, but that he failed to comply with the terms of item 9 thereof in that he retained in his possession certain paper writings referred to therein; and that the defendant has remarried since the granting of the divorce to plaintiff.

Plaintiff further avers that following the payments to her as aforesaid it was necessary for her to expend a portion of such money for maintenance and living expenses; that she does not now have in her possession the amount she received and that it is impossible for her to make a tender to the defendant of the sum so received; that she is willing to and herewith offers to abide by the judgment of the court upon final hearing and to pay the defendant such sum or sums as the court may order in case it be found she has received a greater sum than the amount to which she is entitled.

In her amended petition the plaintiff prays that the contract purporting to adjust the property rights of the parties, and the judgment confirming the property settlement -entered by the court be set aside for the fraud of the defendant; that upon final hearing the plaintiff may be granted fair and reasonable alimony from the property of the defendant; that the amounts she has received be applied as a credit thereon; and for all other, further and proper relief to which she may be entitled in the premises.

In her amendment to the amended petition the plaintiff pleads in detail facts showing that the amount remaining in her hands of the sums paid her by the defendant is insufficient for the purpose of a tender of the return of such sum to defendant. This amendment does not contain any other or further prayer for relief.

In his answer to the amended petition and amendment thereto, the defendant admits certain facts and denies other facts pleaded in the amended petition, and avers certain other facts; but none of such pleaded facts are of such character as to entitle the defendant to any affirmative relief and no affirmative relief is asked.

In her reply to the answer of the defendant the plaintiff denies each and every allegation contained therein which does not admit, either expressly or by implication, the averments and matter of her amended petition.

The nature of the case as pleaded in the amended petition and amendment thereto is therefore not in any way changed by the other pleadings therein.

As the right of appeal does not rest upon the sufficiency of the pleadings, the sufficiency of the pleadings is not a matter for consideration on the motion to dismiss the appeal.

The nature of the case, as disclosed by the pleadings, is an action, not filed in the case in which the judgment sought to be impeached was rendered, by a party at whose instance a judgment for divorce and incidental relief was procured, against the other party to such judgment, to set aside, for fraud practiced on her by the other party to the judgment, an agreement purporting to adjust the property rights of the parties, and that part of such judgment confirming the property settlement prescribed by the agreement, and having fair and reasonable alimony granted to her from the property of the other party.

While the plaintiff in her amended petition asks that the property, settlement agreement entered into between the parties be set aside, the setting aside of such agreement is not a condition precedent or essential to the primary relief sought by plaintiff, which is the setting aside of that part of the judgment confirming the agreement, and having fair and reasonable alimony granted to her, for the 'reason that upon the setting aside of that part of the judgment the court in the divorce action would be vested with exclusive jurisdiction under the laws of Ohio to make a full and complete settlement of the property rights between the parties, and to affirm, modify, cancel or annul said agreement. Stark v. Stark (Common Pleas Court of Richland county), 28 N. P. (N. S.), 36, 8 Ohio Law Abs., 287 (affirmed by Court of Appeals of Richland county, February 10, 1930; motion to certify record overruled by Supreme Court, April 16, 1930).

While an action to set aside an agreement upon the ground of fraud ordinarily constitutes a chancery case, the instant case in which such relief together with other relief is sought does not constitute a chancery case as such relief may be granted only after the judgment in the divorce action is set aside, and only in the divorce action which is not a chancery case.

The matter to be determined then resolves itself into the question whether the facts pleaded and the other relief asked in the instant case constitute a chancery case.

An action to impeach a judgment upon the ground of fraud constitutes a chancery case only when the relief sought, warranted by the pleaded facts, is not obtainable in a proceeding to vacate or modify such judgment pursuant to the provisions of Section 11631, General Code. Coates v. Chillicothe Branch of the State Bank of Ohio, 23 Ohio St., 415; Seeds v. Seeds, 116 Ohio St., 144, 155, 156 N. E., 193, 52 A. L. R., 761.

The relief warranted by the pleaded facts and sought in the instant case is all obtainable by a proceeding to modify the judgment- in question pursuant to the provisions of Section 11631, General Code, and for this reason the case is not a chancery case in its nature.

Furthermore, while actions to enjoin the enforcement of or to impeach judgments upon the ground of fraud are subjects of chancery jurisdiction, such jurisdiction has never extended to cases such as the instant case in which the relief sought is the partial vacation or modification of a judgment.

For the reasons mentioned, the instant ease is not a chancery case within the purview of Section 6, Article IV of the Constitution, and this court for that reason is without jurisdiction of the appeal upon'questions of law and fact.

The motion to dismiss the appeal upon questions of law and fact will therefore be sustained and such appeal dismissed, but the cause will be retained and will stand as an appeal upon questions of law only. '

As bill of exceptions has been heretofore filed herein, no time will be fixed for the preparation and settlement of a bill of exceptions. However, it is ordered that the appellant shall file his brief and assignments of error herein within fifteen days from the announcement of this decision and that the appellee shall file her answer brief herein within thirty days from the announcement of this decision and that the appellant shall file his reply brief herein within thirty-five days from the announcement of this decision.

Judgment accordingly.

Guernsey, P. J., Jackson and Middleton, JJ., concur.