text:
    Antonik et al., Appellees, v. Chamberlain et al. ; Chamberlain Engineering Corp., Appellant. Antonik et al. ; Ake et al., Appellants, v. Chamberlain et al., Appellees. Antonik et al. ; Old Trail School, Appellant, v. Chamberlain et al. ; Chamberlain Engineering Corp., Appellee.
    (Nos. 3842, 3846 and 3847
    Decided December 23, 1947.)

      Messrs. Buckingham, Doolittle £ Burroughs and Messrs. Slabaugh, Gtiinther, Jeter £ Pflueger, for appellees Sam Antonik et al. and appellants Merline E. Ake ot al.

      Mr. James E. Alpeter and Messrs. Brouse, McDowell, May, Bierce & Wortman, for appellant and appellee Chamberlain Engineering Corporation.

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellant Old Trail School.
   By the Court.

In these appeals on questions of law and fact, plaintiffs, who are the owners of, and- reside in, their properties located west of Akron, Ohio, in the vicinity of property of defendants, and also Old Trail School, likewise in the vicinity of said property, seek an injunction to restrain defendants from using their premises as a class I, privately owned, airport, and from constructing or operating such airport thereon.

Of the three defendants, Chamberlain Engineering-Corporation is the only one involved in this controversy; and hereinafter, where the word “defendant” is used, it shall refer to said corporation.

Defendant’s premises are located approximately one-fourth mile west of the westerly corporation limits of the city of Akron, are unrestricted and unzoned, and consist of approximately 450 acres of vacant land.

It is defendant’s intention to construct upon its premises a class I airport, from which will be flown airplanes of a rating of 190 and under, and also to erect thereon such buildings as may he necessarily incident to the operation of such airport.

The Common Pleas Court issued the injunction on behalf of thirteen of the plaintiffs, representing the ownership of seven of the various properties. Thereafter, all of the losing parties filed appeals in one or another of the three cases now-before us.

Defendant’s plans for the location of its runways, and for grading its premises, are shown by the evidence introduced in this court to be materially different than were its plans of construction when this case was heard by the Common Pleas Court.

The present plan of defendant, as shown by the evidence, contemplates a relocation and lengthening of its runways, and the adoption of a mixed flight pattern in the operation of the airport, which it is claimed will almost, if not entirely, eliminate flying-over the buildings of any of the parties plaintiff.

The basis of plaintiffs’ claim for relief, as disclosed by the pleadings and briefs, is “that the operation of an airport upon defendants’ property would of necessity create a nuisance to all of the plaintiffs, and would further result necessarily in repeated trespasses upon plaintiffs’ properties by airplanes using defendants’ property. * * * that by reason of the nuisance and trespasses the plaintiffs would be seriously interfered with in the peaceful enjoyment of their homes, and that the value of their properties would be substantially impaired, and they would suffer irreparable injury.”

It is conceded that before the defendants had performed any substantial work upon their premises, a considerable number of plaintiffs notified defendants in writing of their objections to the location and operation of an airport upon the site in question.

To the petitions (original and intervening), the defendants have demurred, for the reasons:

First, that there is a misjoinder of parties plaintiff.

Second, that several causes of action are improperly joined in said petitions.

Third, that the petitions do not state facts. which show a cause of action.

As to the first and second grounds of demurrer, we-find that there is no misjoinder of parties plaintiff or of causes of action.

As to the third ground, the demurrer is overruled, because “ordinarily, a party is entitled to the preventive remedy by injunction against a threatened wrong to his property rights, by one having the power to commit it, which, if consummated, would cause him. irreparable injury, for which courts of law can afford no adequate redress. He need not wait until the injury is done, since, to require him to do so, would defeat the remedy. It is, however, well settled, that the party who seeks the remedy, must not only show some clear legal or equitable right, but also, a well grounded apprehension of immediate and substantial injury to such right.” Reemelin v. Mosby, 47 Ohio St., 570, at pages 573-574, 26 N. E., 717. And, see, 55 A. L. R., 880, annotation, and cases there cited.

The petitions herein, in our opinion, contain allegations sufficient to constitute a cause of action for injunction.

To the petitions of the plaintiffs, defendants have filed answers, wherein, after'certain admissions, general denials of the allegations of the petitions are made.

The federal statutes which must be considered herein are as follows:

“The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the air space above the United States, including the air space above all inland waters and the air space above those portions of the adjacent marginal high seas, bays, and lakes, over which by international law or treaty or convention the United States exercises national jurisdiction. * * *” Title 49, Section 176 (a), U. S. Code.

“As used in this subchapter, the term ‘navigable airspace’ means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority, and such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation in conformity with the requirements of this subchapter.” Title 49, Section 180, U. S. Code.

“There is hereby recognized and declared to exist in behalf of any citizen of the United States a public-right of freedom of transit in air commerce through; the navigable air space of the United States.” Title-49, Section 403, U. S. Code.

The Civil Aeronautics Board regulations which must be considered herein are the following, which. Avere effective as of October 8,1947:

“60.00 Scope. The following air traffic rules shall apply to aircraft operated anywhere in the United States, including the several States, the District of Columbia, and the several Territories and possessions-of the United States, including the Territorial waters- and the overlying airspace thereof, except:

“(a) military aircraft of the United States'armed forces when appropriate military authority determines-that noncompliance with these rules is required and prior notice thereof is given to the Administrator, and

“(b) aircraft engaged in special flight operations,, requiring deviation from these rules, which are conducted in accordance with the terms and conditions of a certificate of waiver issued by the Administrator.”

“60.100 Application. Aircraft shall be operated at all times in compliance Avith the following General Flight Rules and also in compliance with either the-Visual Flight Rules or the Instrument Flight Rules, whichever are applicable.”

“60.107 Minimum safe altitudes. Except • w(ien necessary for take-off or landing, no person shall operate an aircraft below the following altitudes:

“(a) Anywhere. An altitude which will permit, in the event of the failure of a power unit, an emergency landing without undue hazard to persons or property on the surface.

“(b) Over congested areas. Over the congested areas of cities, towns or settlements, or over an open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft. . Helicopters may be flown at less than the minimum prescribed herein if such operations are conducted without hazard to persons' or property on the surface and in accordance with (a) above; however, the Administrator, in the interest of safety, may prescribe specific routes and altitudes for such operations, in which event, helicopters shall conform thereto;

“ (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely'populated areas. In such event, the aircraft shall not be operated closer than 500 feet to any person, vessel, vehicle, or structure. Helicopters may be flown at less than the minimums prescribed herein if such operations are conducted without hazard to persons or property on the surface and in accordance with (a) above # * *.”

“60.108 Operation on and in the vicinity of an airport. Aircraft shall be operated on and in the vicinity of an airport in accordance with the following rules:

“(a) When approaching for landing, all turns shall be made to the left unless the airport displays standard visual markings approved by the Administrator and which indicate that all turns are to be made to the right, or unless otherwise authorized by air traffic control.”

The pertinent Ohio statute (Section 6310-42, General Code), which refers to the Ohio Aviation Board, is as follows:

“It shall be the duty of the board to, and it shall, administer and enforce the provisions of this act [Sections 6310-38 to 6310-506, General Code]. For such purpose the board is authorized and empowered, subject to and in accordance' with the provisions of the administrative procedure act, to adopt and promulgate such rules and regulations as it deems necessary' to carry out and enforce the provisions of this act.

* . * # # *

“All rules, regulations and amendments thereto, prescribed by the board, shall conform to and coincide with, so far as possible, the provisions of the Civil Aeronautics Act of 1938, and acts amendatory thereto, passed by the Congress of the United States, and air commerce regulations issued pursuant thereto.”

Under the above federal statutes, the determination of what shall constitute the “navigable airspace” above the earth is left to the Civil Aeronautics Authority (Section 180 of Title 49, U. S. Code, supra), and that body, by one of its regulations (paragraph 60.107, supra), has declared:

“Except when necessary for take-off or landing, no person shall operate an aircraft below the following altitudes: ■

“ (b) Over congested areas * * * 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft. * * *

“(c) Over other than congested areas * * * 500 feet above the surface, except over open water or sparsely populated areas.” In the latter event, “the aircraft shall not be operated closer than 500 feet to any person, vessel, vehicle, or structure.”

It is urged by the plaintiffs that the above limits preclude the flying of aircraft over the property of another at a height of less than 500 feet when taking off or landing, and the cases of United States v. Causby, 328 U. S., 256, 90 L. Ed., 1206, 66 S. Ct., 1062, and Swetland v. Curtiss Airports Corp. (Sixth C. C. A.), 55 F. (2d), 201, 83 A. L. R., 319, are cited as leading authority supporting that contention.

Plaintiffs concede that their respective properties are not in a “congested area,” as that term is used in the regulations.

1. In our consideration of the implications of this case, we are first met with the maxim familiar to the profession: “Cujus est solum, ejus est usque ad coelum •et ad inferos” (Whose is the land, his is also that which is above and below it). This maxim has been applied through the ages to a variety of circumstances, and many courts in this country and England, in considering a landowner’s right in the airspace above, have given it the sanctity of an axiom or corollary in the field of mathematics.

We find that the maxim has not been generally applied in cases which establish rights in airspace occupied by aviators in the operation of aircraft. The federal government has, in fact, rejected the doctrine and has placed navigable airspace, as prescribed by the Civil Aeronautics Authority, in the public domain, and hence not subject to private ownership or control. United States v. Causby, supra.

By the provisions of Title 49, Section 176 (a), U. S. Code, it is provided:

“The United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the air space 'above the United States * *

“Sovereignty” is defined as meaning “2. Supremacy in respect of power, domination, or rank; supreme dominion, authority, or rule.” Oxford English Dictionary.

In flying below the “navigable airspace,” does the aviator commit trespass while landing- and taking off, if, in so doing, he flies over the lands of others?

The chief characteristic of ownership is the right to complete dominion, and when ownership is applied to land it means the land itself and what pertains to-it, and the right for the time being to possess and. enjoy it. _

_ The boundaries of a man’s private domain cannot be crossed without permission. In law this permission is called a license. If the permission is lacking,, the invasion of the property is a trespass, even.though unaccompanied by damage. Lawful license to enter-one’s premises may be given either (1) .impliedly by the owner; (2) expressly by the owner; (3) by law.

There is no unanimity of opinion among courts respecting the rights or the extent of ownership, if any,, of the landowner in the superadjacent airspace above his land. Many formulae have been advanced, extending from the “ad coelum” doctrine above mentioned,, to no ownership at all in airspace not then presently used. Hinman v. Pacific Air Transport, 84 F. (2d), 755.

Be that as it may, assuming that the pronouncement of the Supreme Court of the United States in United States v. Causby, supra, is and should be the law, that “The landowner owns at least as much of the space-above the ground as he can occupy or use in connection with the land..* * * The fact that he does not occupy i.t in a physical sense — by the erection of buildings and the like — is not material,” and that because of such ownership his boundaries may not be crossed at an altitude below 500 feet without permission, does not law give the aviator the right to cross the boundaries in the superadjacent airspace, when landing or taking-off, and in so doing obviate what would otherwise bean act of trespass? What do the Civil Aeronautics Authority regulations mean when they provide: ‘ ‘ Except when necessary for take-off or landing, no person shall operate an aircraft below the following altitudes,” etc., if they do not mean that an aviator is-given permission to use the airspace above another’s land, in landing or taking oft, at heights below those altitudes later specified to be minimum safe altitudes? The regulations would be difficult indeecl to understand if they were construed to mean that by federal authority one may fly over another’s land without trespass if operating in the “navigable airspace,” whereas fie becomes a trespasser when taking off or landing, if he flies over another’s land at a lower height in reaching or leaving the “navigable airspace.”

In order that effect may be given to the regulations permitting flight in the public domain, the words of the •regulations — “Except when necessary for take-off or landing” — must be construed to mean that a right is given to fly over the lands of others at heights of less than 500 feet, when necessary for take-off or landing.

Inasmuch as the United States has declared itself to be possessed of complete and exclusive national sovereignty in all of the airspace above the United States, and inasmuch as “sovereignty” means “supreme dominion,” the United States thereby has reserved to itself the right, “when necessary for takeoff or landing,” to grant to aviators licenses to reasonably use the airspace below the “navigable airspace.”

We reject the theory of trespass under these circumstances, unless the acts of landing and taking off are done under such circumstances as to constitute an abuse of the license. This on the theory that, if the authority to cross the boundaries of one’s property is conferred by law, abuse of that authority not only terminates the license, but revokes it. And by abuse is meant the kind of abuse considered in the Causby case, supra, which constituted the appropriation of property for' public use in contravention of the Fifth Amendment of the Constitution of. the United States, or, such abuse as would constitute a nuisance.

2. Has there been a sufficient showing of a threatened nuisance to warrant an order for injunctive relief?

Nuisance, in law, for the most part consists in so using one’s property as to injure the land or some incorporeal right of one’s neighbor. An act which is wrongful in itself may be adjudged wrongful before it is committed, as well as afterwards. But an act which is in itself rightful, and may become wrongful only because of some effect which it produces, is generally not proved wrongful by a ■priori reasoning. Even when it appears that a given act or acts done in a certain way are wrongful, it does not follow that some part of the act or acts may not be rightfully done, or even that the entire operation may not be later done in such a way as to be rightful. It is often found that the damage to the defendant which the interference of a court, through injunction, would cause, will be out of all proportion to the damage to the plaintiff or to the public in general.

The law of nuisance plys between two antithetical extremes: the principle that every person is entitled to use his property for any purpose that he sees fit, and the opposing principle that everyone is bound to use his property in such a manner as not to injure the property or rights of his neighbor. For generations, courts, in their tasks of judging, have ruled on these extremes according to,the wisdom of the day, and many have recognized that the contemporary view of public policy shifts from generation to generation.

In our business of judging in this case, while sitting as a court of equity, we must not only weigh the conflict of interests between the airport owner and the nearby landowners, but we must further recognize the public policy of the generation in which we live. We must recognize that the establishment of an airport of the kind contemplated is of great concern to the public, and if such an airport is abated, or its establishment prevented, the consequences will be not only a •serious injury to the owner of the port property but may be a serious loss of a valuable asset to the entire •community.

The necessities of a' social state, especially in a .great industrial community, compel the rule that no •one has absolute freedom in the use of his property, because he must be restrained.in his use by the existence of equal rights in his neighbor to the use of his property. This rule has sometimes been erroneously interpreted as a prohibition of all use of one’s property which annoys or disturbs his neighbor in the enjoyment of his property. The question for decision is not simply' whether the neighbor is annoyed or disturbed, but is whether there is an injury to a legal right of the neighbor. The law of private nuisance is .a law of degree; it generally turns on the factual question whether the use to which the property is put is a reasonable use under the circumstances, and whether there is “an appreciable, substantial, tangible injury resulting in actual, material, physical discomfort, and not merely a tendency to injure. It must be real and not fanciful or imaginary, or such as results merely in .a trifling annoyance, inconvenience, or discomfort.” 39 American Jurisprudence, Nuisances, Section 30. And, see, Eller v. Koehler, 68 Ohio St., 51, 67 N. E., 89.

“It is not everything in the nature of a nuisance ' which is prohibited. There are many acts which the ■owner of land may lawfully do, although it brings annoyance, discomfort or injury to his neighbor, which .are damnum absque injuria. # * *

* * The test of the permissible use of one’s own land is not whether the use or the act causes injury to his neighbor’s property, or that the injury was the natural consequence, or that the act is in the nature of a nuisance, but the inquiry is, Was the act or use a reasonable exercise of the dominion which the owner of property has by virtue of his ownership over his property, having regard to all interests affected, his own and those of his neighbors, and having in view also public policy?” Booth v. Rome, W. & O. Terminal Rd. Co., 140 N. Y., 267, 35 N. E., 592, 37 Am. St. Rep., 552, 24 L. R. A., 105.

All systems of jurisprudence recognize the requirement of compromises in the social state. Members of society must submit to annoyances consequent upon the reasonable use of property. “Sic utere tuo ut alienum non laedas” is an old maxim which has a broad application. If such rule were held to mean that one must never use his own property in such a way as to do any injury to his neighbor or his property, it' could not be enforced in civilized society. People who live in organized communities must of necessity suffer some damage, inconvenience and annoyance from' their neighbors. For these annoyances, inconveniences and damages, they are generally compensated by the advantages incident to living in a civilized state.

3. A brief summary of the contentions of the plaintiffs is that the defendants, if permitted to build and operate the airport, will inflict irreparable damage because of (1) noise, (2) dust, (3) attraction of crowds, who will trespass upon their premises, (4) annoyance in the peaceful enjoyment of their homes, (5) fright and fear of physical harm from low flying and the crashing of planes, (6) depreciation of property values.

The long record of testimony and exhibits is replete with evidence offered in support of and against these claims. It is impossible, from this maze of evidence, to state with any degree of accuracy just wbat legal injury to the plaintiffs the evidence proves. To find that irreparable damage will follow from the operation of the port would be but guess and speculation. Arid to find that the use as an airport of approximately 450 acres of land beyond the city limits and away from the closely-búilt-up and congested part of the city is an unreasonable use of the land, would, we think, under the circumstances of this case, obstruct the development of aviation, as a legitimate and necessary industry, to an unreasonable extent.

Undoubtedly the plaintiffs will experience some discomfort, but that is one of the incidents or results of residing in a heavily-populated, highly-industrialized state. It is an incident of living in an age of progress, in which there are erected huge rubber factories, with their accompanying smells and noises; in which the streets and highways are used by great, noisy trucks for transportation; in which commercial airliners ply the skies continuously, for the speedy transport of persons and freight; and in which thousands of various industries throughout the cities and countryside contaminate and defile the former natural beauty, peacefulness and quiet of the vicinage.

Apropos of the claim of diminution in the value of plaintiffs’ real property, because of the proposed construction and operation of the airport, it has been stated in Hassinger v. Kramer, 28 Ohio App., 449, at page 451, 162 N. E., 752, that: “It must be borne in mind that the remedy invoked here is that of injunction, which is summary, and out of the ordinary, and should never be granted save and except in cases for the prevention of great and irreparable injury or mischief. Before an injunction should be granted, the injury must be so great as to be incapable of compensation in damages.” See, also, 7 A. L. R., 762, and 26 A. L. R., 939.

If plaintiffs’ claim contemplates a diminution in the value of plaintiffs’ property, because of 'a lessening of the sale value thereof, due to the construction and operation of an airport, then such damages as may be proved, are capable of compensation in money, and furnish no basis for granting the extraordinary remedy of injunction. And in connection with this claim, in a case where an anticipatory injunction is sought, the damages resulting from the future construction and operation of the airport would be so speculative as to be incapable of definite ascertainment, because no one can know in what manner the airport will be operated, and hence what damage, if any, would result from its operation.

The case before us presents legal and equitable principles of far-reaching importance. Whatever we decide here has a bearing upon every airport in this state. On the part of the plaintiffs it is in most part a question of comfort. On the part of the defendants it is a question of the life or death of a legitimate and necessary business. The inconvenience to" be experienced by the plaintiffs from the erection of the airport does not appear to be any greater than the inconvenience or damage resulting to the owners and occupiers of residential property in the vicinity of or adjacent to any airport erected in this state. Powell v. Craig, 113 Ohio St., 245, at page 249, 148 N. E., 607.

Upon the evidence here presented, we are unable to conclude that defendant’s contemplated use of its property is an unreasonable use, or that, through the construction and operation of the airport in question, the- plaintiffs will suffer irreparable injury, as alleged, oi- that they have shown by the required degree of proof such substantial damage and injury as calls for injunctive relief from this court.

The petitions of the plaintiffs are dismissed.

Petitions dismissed.

Doyle, P. J., Stevens and Hunsicker, J J., concur.


source: Caselaw Access Project

author: Doyle, P. J.

license: Public Domain

text:
    Gill, Exrx., Appellant and Appellee, v. Leach, Admx. d. b. n., et al., Appellees and Appellants.
    (No. 205
    Decided May 19, 1947.)

      Mr. John A. Weber and Mr. Harold L. Williams, for appellants and appellees Mary Almeda Gill, executrix, Mary Almeda Gill, Melva Louisa Smith and Mildred Eldridge.

      Mr. R. E. Snedclen and Messrs. Brouse, McDowell, May, Bierce ds Wortman, for appellees and appellants Elizabeth R. Leach, administratrix, Elizabeth R. Leach, Roy S. Rollins, Frank Lyle Rollins, Frank P. Rollins and Helen Rollins Curtice.
   Doyle, P. J.

The cause out of which the present controversy grows was tried in the Probate Court of Medina county on pleadings which called for the construction of the will of Frank Spellman,' deceased. The wife, who survived the testator, was appointed executrix, and she continued in such capacity until her death.

At the time of the testator’s death (in 1932) he was possessed of both real and personal property, which passed into the possession of the executrix for administration under the will. Upon the death of the executrix in 1945, she had a substantial part of the property ’ which came to her in the capacity of executrix.

The questions posed are: What, if any, interest does the wife’s estate now have in the property? Did she have an absolute estate and could she devise and bequeath it by will as a part of her estate, or did it pass to the claimed residuary legatees under the will of the husband? *

The Probate Court adjudged a life interest only to the wife under the husband’s will, and awarded the remainder at her death to the persons named in the instrument of the husband. The appeal to this court of Mary Almeda Gill, executrix, Mary Almeda Gill, Melva Louisa Smith, and Mildred Eldridge, challenges that judgment.

Frank Spellman willed:

“Item 3. All the rest and residue of my property and estate, real and personal, of every kind and description, and wherever situated, I give, bequeath and devise to my wife, Mabelle H. Spellman.

“Item 4. At the decease of my said wife, Mabelle H. Spellman, or in the event that she shall die before I do, then at my. decease, I give, bequeath and devise all of my property and estate, real and personal, of every kind and description that shall remain unused at the decease of my said wife, or at my decease, to the following named persons, to wit: one-fourth (14) part thereof to my niece, Elizabeth Leach; one-fourth (!4) part thereof to my nephew, Roy Rollins; one-fourth (14) part thereof to my nephew, Lyle Rollins; and one-fourth (14) part thereof to the children of my nephew, Paul Rollins.”

It is asserted that the above two items are inconsistent and repugnant and the latter one cannot stand.

Tax Commission v. Oswald, Exrx., 109 Ohio St., 36, 48, 141 N. E., 678, is authority for the general statement that “# * * it is rudimentary in the construction of wills that the intention of the testator is to be ascertained, and the wholé will given force and‘effect, if such a construction can be reached consistent with the application of legal principles, and that, when an instrument is open to tm> constructions, one of which will give effect to the whole instrument and the other will destroy a part of it, the former must always be adopted.” (Italics ours.)

In Robbins v. Smith, Jr., Admr., 72 Ohio St., 1, 73 N. E., 1051, appears the following part of the syllabus:

“2. The will of Edward’ Harwood provided that the remainder of his estate (two-thirds) should be equally apportioned amongst his children, but should not be paid over to them, but be safely invested for their behoof; and the annual income arising to each child be subject to her control, whether married or unmarried, and in no instance should the husband of any such child have any power or control over the principal or interest of such share; nevertheless, each to have power and authority to will-and devise her portion of said inheritance in such manner as she shall see fit. In case of either dying without leaving a will her portion to be equally divided between her children who may survive her, or if she have no children surviving her, then the said portion to be paid to the testator’s children who may survive her, share and share alike. The children referred to were three daughters, one of whom has since deceased. Held:

“(a) That under this will the children of the testator took absolute title to the income but only an estate for life in the corpus of the estate, with powbr in each to finally dispose by will of the portion devised for her benefit, and with remainder in the children surviving such child, and, failing those, in the surviving children of the testator in case the- corpus should not be disposed of by will. * * *” (Italics ours.)

The claim of repugnancy was made in that case, and the erudite Judge Spear answered (at pages 16-17):

“The real question at the bottom of the inquiry so far as the claim of repugnancy is concerned is akin to that presented in Baxter v. Bowyer, 19 Ohio St., 490, and in Johnson v. Johnson, 51 Ohio St., 446. Those cases establish the rule that conflicting provisions of a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either should be rejected. And where, by one clause in a will, property is devised or bequeathed, by words prima facie importing an absolute estate, and by subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate, and the limitation over is valid.” (Italics onrs.)

The challenged items and the holding of the court in Baxter v. Bowyer, supra, were:

“3. * * *.

“ ‘Item 1. — I give and devise all my property to my beloved wife, Deborah Baxter, both real and personal, of every description, with full power to collect, ..by law or otherwise, all debts due me, and to adjust and pay all expenses resulting from my last sickness and demise, and all other just claims whatsoever. I also expressly desire that she shall have unlimited power in the possession of all property, real and personal, thus bequeathed to her; to sell at public or private salé, on such terms as she may think best, or use in any manner as she may deem proper, any or all of the property, real or personal; and deeds to purchasers to execute, acknowledge, and deliver in fee-simple.

“ ‘Item 2. — I do hereby devise that, at the death of my beloved wife, the sum of .two hundred dollars be placed in the hands of the Treasurer of “Union Cemetery” as a perpetual fund, to be by him placed at interest, the interest to be annually collected and expended in taking care of our graves.

“ ‘Item 3. — I do hereby devise and bequeath, at the death of my beloved wife, after all expenses resulting from her last sickness and demise, and expenses of tombstones and item second shall have been adjusted, all the property then' remaining to the Presbytery of Cincinnati; said principal to be placed by the said Presbytery in a fund where it will be permanent, and the interest thereof to be annually collected and equally divided between the Boards of Foreign and Domestic Missions. ’

“Held: That under this will the wife took only a life estate, and life support, with power of sale for the benefit of the estate, and that the remainder goes to the parties and uses specified in the last two items. ’ ’

And in Johnson v. Johnson, supra, the controversial will provided and the holding was:

“1. * * * ‘Second — I-give and devise unto my beloved wife, and her assigns, all of the remainder of my property, both real and personal, however the same may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the-same be equally divided between my brothers and sisters, and their children, if deceased, the children to have the same amount the parent would be entitled to if living.’ Reid: That under this will the widow

took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life .support, and that what' remained at the time of her death, unconsumed in supporting her, belongs to the remaindermen designated in the will.”

In the cases above mentioned, as well as in the many cases cited by Judge Day in Tax Commission v. Oswald, supra, the testamentary provisions seem in most instances to follow a similar pattern. In these cases, in addition to a devise and bequest, the will further grants various powers to the taker, such as the power to “use,” “possess,” “sell” or “consume,” ■or directs that the property shall be used for certain definite purposes, etc., which language the Ohio courts have said discloses an intention of limiting the estate; because if the testator had intended to make one an absolute owner, why should he make any provision as to the manner of using the property, or give other powers inconsistent with an estate absolute? In fact, say the courts, after a clause bequeathing or devising-property, the introduction of specific limitations or the granting of powers would seem to negative the idea that the testator supposed that he had already vested the absolute property in the person named. The words only prima facie import an absolute fee, and under such circumstances other provisions seemingly in conflict may be reconciled, thereby giving effect to the entire will.

The instrument which is now the subject of litigation differs materially, however, from the instruments under consideration in all of these cases. It does not contain the words “during her natural life,” or “for her use during life,” or words giving power to sell “for her use and benefit,” or'similar expressions familiar to the profession, which • are referred to in the decisions in this state as aids in arriving at the intention of the testator, or in determining whether words later used in the instrument indicative of reserving a remainder over are. repugnant to an earlier devise. To the contrary, the bequest and devise in item 3 is declarative, absolute, positive and direct.

The case must be governed by the .well-settled principle that, when the absolute and unrestricted ownership of property is given by a will, a limitation over is void, because such a limitation is inconsistent with the full and complete title already given. The testator gave to bis wife his entire estate, real and personal. He granted her no specific powers, nor did he impose any limitations. She was given the title in fee to the real estate, and an absolute ownership of the personal property in unequivocal terms under item 3. The limitation in item 4 of “all * * * that shall remain unused at the decease of my said wife” is clearly inconsistent with and repugnant to the already-given title in fee to the real estate and gift of the personalty.

“If the estate which is given to the first taker is a fee,, an attempt to give any part of the property of-which the first devisee has- not disposed, does not cut the fee down to a life estate. * * *” 3 Page on Wills (Lifetime Ed.), Section 1111.

“Every devise in a will of lands, tenements or hereditaments, shall convey all the estate of the devisor therein, which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate.” Section 10504-72, General Code.

The conclusions heretofore reached are not without authority of reported cases in this state. And while it is not generally profitable to place too much reliance on previously decided cases, because scarcely any two instruments present language precisely alike, the words in the instruments under inspection in the following cases were held to support an absolute estate and not an estate for life. And while in three of the cases cited below precatory words were specifically used in the devise or bequest of the remainder over, in the others such language was not employed. Steuer v. Steuer, 8 C. C. (N. S.), 71, 18 C. D., 145; Tracy v. Blee, 22 C. C. (N. S.), 33, 28 C. D., 461; Robraham v. Gregg, 2 Ohio App., 108; Hull v. Chisholm, 7 Ohio App., 346; Watkins v. Price, 16 Ohio App., 27; Stophlet, Exrx., v. Stophlet, 22 Ohio App., 327, 153 N. E., 867; Trumbull v. Stentz, 30 Ohio App., 34, 164 N. E., 57; Krumm, Exr., v. Cuneo, 71 Ohio App., 521, 47 N. E. (2d), 1003; Powell, Jr., v. Layton, 79 Ohio App., 279, 69 N. E. (2d), 444; Pealer, Admr., v. Cruit, 3 Ohio Law Abs., 325; Jahnke v. Jahnke, 10 Ohio Law Abs., 597; Baker v. Van Arsdale, 22 Ohio Law Abs., 42. See, also, Widows’ Home v. Lippardt, 70 Ohio St., 261, 71 N. E., 770; annotation, 75 A. L. R., 72.

The persons who claim as residuary legatees under the will (Elizabeth R. Leach, administratrix de bonis non, Elizabeth R. Leach, Roy S. Rollins, Frank Lyle Rollins, Frank P. Rollins, and Helen Rollins Curtice) have also filed a “notice of appeal” in this case.. Their appeal is in effect a cross-appeal, and arises by reason of their claim that the trial court erred in excluding evidence tending to show “the practical construction” given to the will by the wife of the testator ; they assert the evidence would tend to show that the wife recognized a life interest only as having been given her under the instrument.

We recognize that under certain circumstances a rule of practical construction has been adopted by some courts in other states of the Union. Ohio has as yet adopted no such rule. However, in no state where the rule exists has a court applied it to a case where the quality and quantity of a devise or bequest is clear and unmistakable, the rule having been applied only in cases where an ambiguity was present in the provisions of the will. And it may be said that, where an- absolute estate is given in unequivocal terms by a husband to his wife, an interpretation of the will by the wife contrary to the legal meaning is of no effect to cut down the estate previously granted; provided, of course, that the element of estoppel or contract is not present (4 Page on Wills [Lifetime Ed.], Section 1614), or some circumstance extraneous to the will which would have an effect similar to that created by estoppel or contract (Winder et al., Exrs., v. Scholey et al., Trustees, 83 Ohio St., 204, 93 N. E., 1098, 33 L. R. A. [H. S.], 995). See Powell, Jr., v. Layton, supra.

On the appeal of appellants Mary Almeda Grill, ex•ecutrix' of the will and estate of Mabelle Spellman, •deceased, Mary Almeda Gill, Melva Louisa Smith and Mildred Eldridge, the judgment will be reversed because contrary to law, and final judgment will be •entered in their favor; and it appearing that there is no error apparent on the face of the record to the prejudice of appellants Elizabeth R. Leach, administratrix de bonis non, etc., Elizabeth R. Leach, Roy S. Rollins, Frank Lyle Rollins, Frank P. Rollins and Helen Rollins Curtice, and that the judgment to be •entered on the appeal of appellants Mary Almeda Gill, executrix, et al., will fully dispose of all matters in connection with, the case, the appeal of appellants Elizabeth R. Leach, administratrix, et al., will be. •dismissed.

Judgment accordingly.

Stevens and Hunsicker, JJ., concur.


author: Htjnsicker, J.

text:
    Hewes, Admx., Appellee, v. Mead et al., Appellees; Fox et al., Appellants.
    (No. 1149
    Decided December 1, 1947.)

      Mr. Thos. E. O’Hern, for appellee Grace Mary Hewes, administratrix.
    • Mr. Walter R. Harlan and Mr. A. W. Cinniger, for appellees Georgia Mead and Cecile H. Lees.

      Mr. R. H. Rice and Mr. L. R. Boyson, for appellants.
   Htjnsicker, J.

This appeal from an 'order of the Probate Court of Lorain county, Ohio, was submitted to this co.urt by counsel on questions of law. The action was one .to construe the will of Harriet Cobb, deceased.

.Item 2 of decedent’s will, the subject for consideration by this court, reads as follows:

“Item 2. I give, devise and bequeath to my husband,, John Cobb, if he survive me, all the rest’and residue of my estate whether real, personal or mixed bf every character, kind and description that I may die seized of after the payment of prior items to be his absolutely and forever; in the event that my husband John Cobb does not survive me then in that event I give, devise and bequeath to Rose Pox, of Chicago, 111., my' husband’s sister, whatever.interest I should have or receive of every nature, character and description through the will of my said husband, John Cobb, to be hers absolutely and forever. ■ And the. residue or remainder I give, devise and bequeath to my sister, Georgia E. Mead, and my foster sister, Cecile H. Lees, of Henrietta township, Lorain county, Ohio, such remainder, equally, share and share alike, absolutely and forever.”

On June 29, 1929, Harriet Cobb, the decedent herein, made her will. On October 7, 1941, Harriet Cobb was declared incompetent, and John Cobb, her husband, was until his death on April 2, 1942, her guardian. Harriet Cobb remained under guardianship until her death on January 26, 1946, with Grace Mary Hewes the successor guardian. Rose Fox, the sister of John Cobb, died on October 8, 1944, leaving as her children and sole heirs at law, the appellants herein, Paul Fox, John P. Fox, Mrs. Helen Keipp and Mrs. Olive Tezla.

The Probate Court held that the devise and legacy to Rose Fox lapsed and passed to Georgia Mead and Cecile H. Lees, appellees, as a part of the residuary estate of Harriet Cobb, deceased.

Appellants in their assignment of errors say that the court erred in ruling that:

“1. * * * the devise and bequest to Rose Fox lapsed and became void, rather than vesting in her heirs.

“2. * * * the property devised and bequeathed to Rose Fox passed as part of the ‘residuary estate,’ since no residuary estate was set up by the will of Harriet Cobb.

“3. * * * the portion of the estate of Harriet Cobb which came to her under the will of her deceased husband passed in its entirety t'o Georgia Mead and Cecile H. Lees, rather than one-half to them and one-half to appellants under Sec. 10503-5, General Code.”

The questions raised are:

1. Does the phrase “to be hers absolutely and forever” vest the estate in the heirs of Rose Fox?

2. Does the will of .Harriet Cobb establish a class bequest?

3. Does the bequest to Rose Fox lapse under Section 10504-73, General Code?

4. Is the residuary estate set forth in Item 2 herein of a particular or a general nature? (If of a particular nature, it would, under certain circumstances, pass as intestate property. If of a general nature, it would, under certain circumstances, pass .under the will as of a part of the residuum.)

Until the death of Harriet Cobb, no rights conld arise in Rose Fox or any one claiming under her, for the will speaks only from the death of the testatrix. Such rights as do arise are limited by the terms of the will which creates them. Patton v. Patton, 39 Ohio St., 590, at page 597; Ohio National Bank, Trustee, v. Boone, 139 Ohio St., 361, 40 N. E. (2d), 149, 144 A. L. R., 1150.

In order for the title to vest in the appellants herein, it would be necessary to say that the phrase “to be hers absolutely and foreyer” really means “to her or her heirs absolutely and forever.” The general rule is that, where the will uses the words “or her heirs” following a devise or bequest to a named devisee or legatee, there is a substitutive or alternative-provision preventing a lapse in case such devisee or legatee predeceased the testatrix. 41 Ohio Jurisprudence, Wills, Section 822; 78 A. L. R., 1008, and cases, there cited; 128 A. L. R., 94, and cases there cited.

Absolutely means “without limitation or qualification.” ' Forever means “at all times, always.”

We cannot write into the will something which the-testatrix did not say, and which she could have said- at the time of its execution, had she so desired. The-words “absolutely and forever” characterize the-quality of the estate given but do not create an estate.

In the second question raised by appellants — that there was created herein a class bequest — it is to be-noted that a. direct bequest was made to a named individual. There is nothing in the will to indicate that Harriet Cobb, the testatrix, intended to create a class, to include the heirs of Rose Fox.

“« * * <a testamentary gift is one to a class where-the aggregate property given to the group, or the several items assigned to the members, may, according to the intent of the testator, be taken by such of the persons indicated as are in being at the time of testator’s decease, or at such time subsequent to the date of the will as the membership of the class.is to be effectually ascertained.’ ”

41 Ohio Jurisprudence, Wills, Section 579, quoting 75 A. L. R., 779; and see following sections; also cases' cited thereunder.

The third question is answered by reading Section 10504-73, General Code (lapsed legacy statute). Rose Fox was not the child of testatrix, neither can she be classed as “other relative.” Schaefer v. Bernhardt, 76 Ohio St., 443, paragraph one of the syllabus, 81 N. E., 640; Kegler, Admx., v. Kempter, 74 Ohio App., 279, 58 N.E. (2d), 701.

The section of the code construed in the Schaefer v. Bernhardt case, supra (Section 5971, Revised Statutes) is the predecessor statute to Section 10504-73, General Code, now in force and effect. The bequest under consideration herein to Rose Fox lapsed at her death.

A “residuary estate” or “the residue” means everything that remains of an estate not otherwise disposed of. Jewett v. Jewett, 21 C. C., 278, 12 C. D., 131; Huffman v. Berry, Exr., 15 Ohio App., 372, at page 374.

Where a residuary clause refers to a balance after other gifts, or to a specific fund, or to a certain class of property, or words of like import, the courts have uniformly interpreted the language to limit the residuary estate to the particular property. If, however, the residuary clause contains no such clearly expressed intention to* limit the property given, then it is deemed to be of a general nature, and lapsed gifts pass as designated in the will. Davis v. Davis, Exr., 62 Ohio St., 411, 57 N. E., 317, 78 Am. St. Rep., 725; In re Stewart, 37 Ohio Law Abs., 105, 45 N. E. (2d), 792; 41 Ohio Jurisprudence, Wills, Section 833 et seq., and cases, there cited; 10 A. L. R., 1522.

When Harriet Cobb used the words “And the residue or remainder I give, devise and bequeath,” did she contemplate the possibility of a lapse of the Rose Pox bequest? Certainly no presumption can arise as to her intent under the rule in Foreman, Admx., v. Medina County National Bank, 119 Ohio St., 17, 162 N. E., 42. She was, prior to the death of Rose Pox, and up to the time of her own death, an incompetent, and hence could not be charged with knowledge of a changed situation. It is to be noted, however, that the bequest to her sisters came at the end of Item 2; it specifically mentioned residue and remainder; if. it had been her intention to give only what was her property, exclusive of that which came to her from her husband, she could have so stated. She chose to use the words “residue or remainder,” and it must be assumed that she used them advisedly, knowing what the force and effect of the statute would be in the event of the death of Rose Pox.

As was said in Flynn, Admr., v. Bredbeck, 147 Ohio St., 49, at page 53, 68 N. E. (2d), 75:

“Testatrix chose the words used in item six of her will and the presumption exists that she was acquainted with the quoted statutes,- their judicial interpretation and the effect they might have on the devolution of her estate. 41 Ohio Jurisprudence, 649, Section 520.”

See, also, Everhard, et al., Trustees, v. Brown, 75 Ohio App., 451, 62 N. E. (2d), 901.

The words Harriet Cobb used created" a residuary estate of a general nature.

We have examined all the claimed errors and find none prejudicial to the rights of the appellants.

Judgment affirmed.

Doyle, P. J., and Stevens, J., concur.


author: Skeel, J. Morgan, J.,

text:
    Byrum et al., Appellees, v. The Red Star Transit Co., Appellant.
    (No. 20820
    Decided March 8, 1948.)

      Mr. A. 11. Budnik and Messrs. Conners S Clarke, for appellees.

      Mr. John H. McNeal, Mr. Harley J. McNeal' and Messrs. Burgess, Fulton & Fullmer, for appellant.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment for the plaintiffs entered in the trial court. The case involves a collision between Byrum’s automobile and defendant’s truck at the intersection of routes 21 and 18.

Ike S. Byrum, a man between 74 and 75 years of age, was driving his automobile north on route 21 some time between four and five o’clock p. m. on February 1, 1945, and at that time had come to the intersection of route 21 with route 18. This intersection is controlled by a traffic signal light. As he approached the intersection, the signal light was red or stop for north- and-south-bound traffic on route 21 and green, or go for east-and-west-bound traffic on route 18. He testified that he thereupon brought his automobile to a stop and looked in both directions on route 18 to observe traffic. He testified further that he observed the defendant’sN truck some distance to the west, being-driven in an easterly direction toward the intersection. The last time he observed the truck was just before he started forward when he estimated its distance from the intersection to be about 450 to 500 feet; his testimony being- in part as follows:

“When 1 first stopped at the intersection, I looked both ways; I saw nothing coming this way and dojvu there was the tractor, way down there, and I looked back at the light and watched the light, because if the light turned green or changed, then I had a right to g-o ahead, but before I went ahead, when it flashed caution the other way east and west, then I went into gear, released my-clutch and started, at that time looking straight ahead * *

Court: “About how far?” (referring to distance truck was to west.)

Witness: “I didn’t pay any attention because I looked back at the light to watch it.”

Court: “That doesn’t tell me anything. Do you have any opinion how far it was?”

Witness: “I could just say I remember seeing it, nothing this way and then I looked back to the light, and saw it flash and I looked down and saw it 450 feet and started on. That is the best I can do, Your Honor.”

As he proceeded into the intersection he suddenly saw the truck over his left shoulder, swerved and then the collision occurred.

The defendant had three fact witnesses; the driver of the truck involved in the collision, another truck ■driver of the defendant who was following the truck that collided with the plaintiff’s automobile and a pedestrian who was walking toward the intersection. The truck drivers both testified that the light was green for east-and-west-bound traffic on route 18 when the first truck entered the intersection at a speed of about 25 miles per hour. These witnesses also testified that the plaintiff was approaching from the south and did not stop but that his automobile seemed momentarily to hesitate and then came on at about 40 miles per hour, thereby causing the collision. The pedestrian testified that as he was walking toward the intersection, he heard the crash, looked up and observed that at that time the light was green for route 18. He was “at the time walking west on route 18, about 150 feet from the intersection.

After the plaintiffs’ petition had been filed, the defendant filed an answer verified by Charles J. Smith, one of the lawyers in charge of the case. The authority for such a verification on behalf of a corporation is provided for by Section 11358, General Code. This answer contained an allegation admitting that the signal light at the intersection of routes 21 and 18 at the time of the collision was not operating, the plaintiffs having alleged that to be the fact in their petition.

When the case was called for trial, counsel who then had the defendant’s case in charge, by stipulation with the plaintiffs and with the consent of the court, agreed to the following entry:

“That the Red Star Transit Company be given leave instanter to file an amended answer and amended cross-petition in said case and that the answer and cross-petition filed previously by the Red Star Transit Company be stricken.from the record.”

By its amended answer, the defendant directly alleges that the traffic light was “functioning and in operation.” Upon trial the court permitted the plaintiffs to introduce into the evidence the first answer and cross-petition of the defendant as part of the plaintiffs’ rebuttal evidence, to which the defendant objected. The plaintiffs offered such answer and cross-petition, without offering any evidence tending to show that such answer containing the statement that the defendant admitted the traffic light was not in operation or functioning at the time of the collision as alleged by the plaintiffs, was authorized by the defendant, or that the defendant had knowledge that such admission was .contained therein and consented thereto. In this connection, it must be remembered that the answer was verified by the lawyer for the defendant then having the case in charge and not by an officer of the defendant corporation.

The defendant claims that the court committed prejudicial error:

1st. In overruling defendant’s motion for judgment at the conclusion of the plaintiffs’ case and also at the conclusion of the entire case.

2nd. In overruling defendant’s motion for new trial.

3rd. In that judgment is contrary to law.

4th. In that the judgment is against the manifest weight of the evidence.

5th. In that’the total judgment for the plaintiffs is excessive.

6th. In receiving into evidence the defendant’s original answer and cross-petition as rebuttal evidence on behalf of the plaintiffs; the evidence of both plaintiffs and defendant being in agreement that such light was operating, there being no evidence controverting such fact.

7th. In receiving such answer and cross-petition into evidence without first introducing some evidence that the defendant authorized that admission that the traffic light was not operating or had knowledge that said admission was contained therein and consented thereto.

The record discloses there is not a word of testimony from either side that at the time of the collision the traffic light was not functioning, nor is there any evidence that any of the witnesses who testified for the defendant ever informed the lawyer who verified the answer and cross-petition of the defendant corporation containing the admission that it was not functioning at the time of or just before the collision. When an abandoned pleading which was verified by one of the lawyers having charge of such party’s case, as provided by law, is offered into, evidence upon rebuttal, it is error to permit the introduction of such pleading into evidence without first requiring the party offering, such pleading to introduce evidence tending to establish that the allegations of such pleading depended upon as rebuttal were authorized by such party or that such party had knowledge that such allegations were-contained therein and consented thereto.

The cases relied upon by the plaintiffs, appellees herein, in conflict with the rule as thus stated have for the most part to do- with pleadings verified by -the party himself. There can be no question that the great weight of authority is that an abandoned pleading verified by a party and not by his agent or attorney is always admissible in evidence against him. (90 A. L. R., 1402.) The rule applicable under the undisputed facts of the case now before us, where the abandoned pleading of the defendant corporation was verified by the lawyer of record, which pleading was offered as containing declarations against interest of such defendant without introducing evidence tending to show that such party either authorized the allegations claimed to be - declarations against interest contained in the pleading or had knowledge that they were contained therein and consented thereto, is under such circumstances inadmissible, is supported by the following authorities:

20 American Jurisprudence 537, last sentence of Section 634:

“It seems, however, that a verification by the attorney of the party who files a pleading does not have the effect of a verification by the party himself in respect of the admissibility of statements in the pleading against him.”

14 A. L. R., 35:

“® * * Verification, however, will not render a pleading admissible against the pleader where the oath is merely that of the attorney, or where it is specifically otherwise provided by statute.”

In the case of Buehman v. Smelker, 50 Ariz., 18, 68 P. (2d), 946, paragraph 16 of the syllabus, the court says':

“Party offering abandoned or'superseded pleadings signed by attorney only as evidence has burden to satisfactorily show that pleadings offered are those of party, or that party approved them.”

And on pages 28, 29 and 30 of the opinion we-find the following:

“* * * The very best of lawyers sometimes omit from their pleadings essential facts, or misstate in some respect the facts constituting their client’s cause of action, or include as facts things not essential or -nonexistent, for which the client is in no way responsible. If the lawyer has misstated the facts and, after being so advised by his client, amends the complaint to state the true facts, should the mistake of his attorney .be charged against him and go to the jury as his statement when it is not true? If so, the right of amendment would be of doubtful value. On this feature of the question we quote from Vogel v. D. M. Osborne & Co., 32 Minn., 167, 20 N. W., 129, 130, as follows:

“ ‘It is a well-known fact that attorneys often have-to interpose pleadings, in the absence of their clients,, with only an imperfect knowledge of the facts. Their-information is not always, or necessarily, derived from, the parties themselves. A subsequent and fuller investigation shows that errors of fact have been committed which render amendment necessary. If, after a party has indicated himself dissatisfied with the original pleading by substituting a new one, he is to-be confronted with the original, interposed by his attorney, as an admission by himself of the facts therein stated, without it being made to appear that he authorized or directed the insertion of these allegations of fact, it would often work unfairly* and although he would have the right to explain, would, in effect, deprive him, to some extent, of the full benefit of his right to amend.’

* # * * *

“The correct rule, we believe, should place the onus on the party offering as evidence abandoned or superseded pleadings signed by the attorney only to satisfactorily show that the pleadings offered are those of the party or that he approved them, rather than on the party against whom they are offered to show he was not personally responsible for such superseded pleadings.

‘ ‘ The onus is always on the party offering a writing of any kind to prove its authenticity. If it is a letter containing admissions against interest, the signature must be proved or, if it is not signed by tbe party, it must be shown that he authorized it or subsequently approved or ratified it. Abandoned pleadings as.evidence are in the same category as other admissions in writing. The burden is always on the person offering them to first establish their authenticity.

“It is an elementary rule of evidence, in order that evidence be competent, that it shall be relevant and material to the issues involved. Jones’ Commentaries on Evidence (2d Ed.,) vol. 3, p. 1823, §993. That is true of superseded or abandoned pleadings. Everybody who saw the accident testified plaintiff was traveling north and defendant Barbara Smellier was traveling east. It was therefore obvious that the allegation in the complaint that the plaintiff was traveling south was a mistake and should have been corrected, as it was. No one could be misled or hurt thereby.’’

See, also, Corbett v. Clough, 8 S. D., 176, 65 N. W., 1074; Carpenter v. Tri-State Telephone & Telegraph Co., 169 Minn., 287, 211 N. W., 463.

We conclude, therefore, that the court committed prejudicial error in receiving the defendant’s first answer and cross-petition into evidence over the objection of the defendant when offered by the plaintiffs in rebuttal without first requiring the plaintiffs to show that allegations therein were in fact authorized by the defendant.

The court in coming to its conclusions of fact gave considerable weight to the fact that the defendant in its first answer and cross-petition had pleaded that at the time of the collision the traffic light was not operating. The court said:

“Now, not giving to McCullough and Williford any too great consideration, along with the testimony of Cos, there would still, in the opinion of the court at least, not be present a record in which one could say that the evidence of the plaintiff preponderated over the evidence of the defendant. The best yon could say for him would be that it was somewhat balanced, and more properly you could say that the defendant had the weight of the evidence.

“Now comes, however, that proposition that the court was not at times advised on, and that was of great importance, and perhaps, it is said sometimes, perhaps determinative. The original answer in this case, which was filed by a reputable, competent lawyer, that answer shows the lights were not working, which distinctly contradicts the testimony of both Mr. McCullough and Mr. Williford.

“Now, where did counsel get the information that caused them to put that statement in the pleadings? Certainly nobody would be willing to entertain the idea that counsel of that character just put it in because they thought it would be a good idea. They got it from the only person from whom they could get it, either McCullough or Williford, or both, the only witnesses to the accident, or through some representative of the defendant who may have gotten it from these two. individuals.

“If there was any explanation, the counsel are easily available, and that explanation could have been" made, so that in my opinion it rather wipes out the testimony of McCullough and Williford. I don’t think you can give it any weight whatever.

“In reference to the defendant’s case, and the witness Cox — as to the witness Cox, either the original counsel thought his statement was false, or else it was not presented to them, one way or the other, so while the court cannot — well, I want to comment on one other thing, although I don’t know that it is of material importance.

“* * * He feels that upon the evidence here, under the circumstances of this original statement in the pleading, that he is compelled to find, or does find, that the plaintiff here has produced a preponderance ■of the evidence, and that there is a liability against the defendant.”

The evideiiee of both parties supported the fact that the signal light was in operation ;and there was no direct evidence from either side that it was not in ■operation. It is hard to understand just why the allegations of the first answer and cross-petition admitting plaintiffs’ claim that the signal light was out •of operation should destroy the weight to be given the testimony of its witnesses-who said the light was in operation, there being nothing in the record to warrant the conclusion that defendant’s lawyers were led to admit such fact upon information received from-these witnesses as suggested by the court and that the weight to be given to the plaintiffs’ testimony should not be likewise destroyed when the petition, verified by Byrum, upon which the case was tried, contains the direct allegation that the signal light was not burning and Byrum’s own testimony does not support such allegation. In any event,-the trial court concluded, as was indicated by the opinion, that were it not for the introduction of the defendant’s answer and cross-petition he would have concluded that “* * * the defendant had the weight of the evidence.”

We conclude, from an examination of all the competent evidence, that the judgment is manifestly against the weight of the evidence.

The defendant to maintain its claim for damages in the cross-petition offered the testimony of a witness to establish the earnings of the equipment as an element of the damages sustained from the loss of use of the equipment, there being some evidence that there was no othei’ equipment of the kind that could be substituted during the time required for repairs. The court sustained the plaintiff’s objection to .such testimony. In this the court committed prejudicial error.

In-the cáse of Cincinnati Traction Co. v. Feldkamp, 19 Ohio App., 421, the court held:

“The value of the use of an automobile which has been damaged by the negligence of another is the expense of hiring the property which the owner is forced to substitute for it, providing it can be replaced. If there are no cars on the market for hire, the value of its use to the owner in his business at the time of the tort complained of is the basis for estimating damages, and the owner’s books, showing the earnings of the car about the time of the tort, are competent evidence of probable earnings during” the time used for repairs. ’ ’

Finding no. other prejudicial errors in the record, the judgment is reversed for error of law in the admission of evidence and for excluding evidence offered by the defendant to establish damage on its cross-petition and for the reason that the judgment is manifestly against the weight of the evidence, and the cause is remanded for further proceedings according to law.

Jibdgment reversed.

Hurd, P. J., concurs.

Morgan, J.,

concurs in the judgment for the reason that the judgment is manifestly against the weight of the evidence, but does not concur in the majority holding that the court committed prejudicial error in admitting into evidence the defendant’s abandoned answer and cross-petition.


author: Wiseman, P. J.

text:
    Nunlist, Appellee, v. Motter, Appellant.
    (No. 1944
    Decided November 17, 1947.)

      Messrs. Scharrer, Scharrer & Hanaghan, for appellee.

      Mr. Daniel L. Dwyer, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, affirming a judgment for the plaintiff rendered by the Municipal Court of Dayton.

The defendant, appellant herein, assigns as error that the judgment is contrary to law and is not sustained by sufficient evidence.

The action is one in forcible entry and detainer. The sole question for determination is whether the notice to leave the premises, which is required to be served on the tenant by the provisions of Section 10451, General Code, may be served by registered mail. The case was tried on an agreed statement of facts in which it was stipulated that a copy of the notice to leave the premises was sent by registered mail, in an envelope addressed to the defendant, toller residence, which copy was mailed at the post office in Dayton, Ohio, with a return receipt requested, and that thereafter the receipt was returned.

The return receipt is as follows:

“Return Receipt.

“Received from the postmaster the registered or insured article, the original number of which appears on the face of this card.

“S/ Helen Motter “(Signature or name of addressee)

“Date of delivery 9-19, 1946.”

The production of this receipt bearing the signature of Helen Motter established a prima facie case of the fact of delivery of the notice to the defendant personally by the post office department. Since no effort was made to rebut the presumption, the court had a right to conclude that the notice was handed to the defendant personally by the postman.

Do the facts show a compliance with the requirements of Section 10451, General Code, which provides:

‘ ‘ A party desiring to commence an action under this chapter, must notify the adverse party to leave the premises, for the possession of which action is about to be brought, three or more days before beginning the action, by handing a written copy of the notice to the defendant in person, or by leaving it at his usual place of abode.” (Italics ours.)

It is urged by the defendant that since the General Assembly failed to expressly provide for the giving of .such notice by registered mail, the service of such notice by registered mail is not permitted, under the accepted rule of statutory construction that expressio unius est exclusio alterius. However, it must be observed that the statute does not expressly provide by whom the service shall be made. If the statute provided that the notice shall be served by the sheriff, such contention could be urged with some force. Again, it is urged that since the General Assembly has seen fit to provide for service of notices by registered mail, in the Probate Code (Sections 10507-4 and 10509-59, General Code), in the section of the Code pertaining to the adoption of children (Section 10512-12, General Code), in the section which provides for the giving of notice prior to the institution of garnishment proceedings (Section 10272, General Code), and in the Mechanics’ Lien Law (Section 8323-3, General Code), the omission to expressly provide for registered mail, service in Section 10451 forbids such service. However, it was held under the provisions of Section 10272, General Code, prior to the amendment which provided for service of notices by registered mail, that the service by registered letter of the written demand on the debtor prior to the institution of garnishment proceedings, if the letter was delivered to the debtor personally, was a sufficient compliance with the statute. Hughes v. Shields, 15 O. D., 255; Ostrander v. Norris, 20 C. D., 643. Those sections are not in pari materia with Section 10451, General Code, and have no controlling effect in determining the construction to be placed on the latter section. However, it is interesting to note that the Supreme Court of Ohio, in considering Section 10272, General Code, after the amendment which provided for service by registered mail, in the case of Stein-Orebaugh v. Andre, 140 Ohio St., 182, 184, 42 N. E. (2d), 904, held:

“This case falls within a very narrow compass. The basis of the motion to dismiss the proceedings in aid of execution urged in the Common Pleas Court was that the notice of demand for personal earnings was delivered by ordinary mail and that such delivery did not comply with the provisions of Section 10272, General Code. The Court of Common Pleas considered this contention well founded and dismissed the proceedings in aid on that ground. This was the single issue considered in the Court of Appeals. That court took the view that under Section 10272, General Code, the delivery bf the creditor’s demand was permissible-by ordinary mail, and so remanded the cause for further proceedings'. This action wa.s clearly correct since the record indicates that the demand was in fact served ‘by leaving it at defendant’s (debtor’s) usual place of residence by means of the postman by regular mail,’ which was clearly one of the permissible methods of service under the provisions of Section 10272, General Code.”

Also, see, Coleman v. Levinson, 11 Ohio Supp., 35.

In applying the principle of law laid down in the ease of Stein-Orebaugh v. Andre, supra, to the facts in this case, the service made on the defendant would .be a sufficient compliance with the requirements of Section 10451, which provides for service “by leaving it at his usual place of abode.” However, in our opinion the facts in this case show personal service on the defendant.

It may be conceded that the notice to leave the premises required to be served on the tenant under Section 10451, General Code, may be served by an agent of the landlord. In 32 Ohio Jurisprudence, 101, is found this statement:

“It is quite well settled by a long line of authorities that the United States mail is the agent of the sender, unless, by a contract between the sender and the addressee, the former is required only to mail the Letter' or article, when the mails become the agent of the addressee.”

The author of Ohio Jurisprudence refers to the case of State v. Douglas, 114 Ohio St., 190, 192, 150 N. E. 733, in which the court held:

It is quite well settled by a long line of authorities that the United States mail is the agent of the sender.”

See Colyear v. Tobriner, 7 Cal. (2d), 735, 62 P. (2d), 741, 109 A. L. R., 191.

In the case at bar the United States mail was the agent of the plaintiff in making the service on the defendant. In our opinion registered mail service "is "permitted under the provisions of Section 10451, General Code. In Ostrander v. Norris, supra, Judge' Winch asked the question: “What difference does it make, so long as the debtor personally receives thg written demand, whether it is handed to him by the creditor, his attorney, the attorney’s clerk, a messenger boy, or a letter-carrier?” The undisputed facts in this case show that the service made effectually complied with both provisions in Section 10451, General Code, which provides that notice may be given either “by handing a written copy of the notice to the defendant in person” or “by leaving it at his usual place of abode.”

Finding no error in the record, the judgment is affirmed. Case is remanded for further proceedings according to law.

Judgment affirmed.

Miller and PIobnbeck, JJ., concur.


author: Ross, J.

text:
    Vekoske et al., Appellees, v. The Cleveland Trust Co., Appellant.
    (No. 20614
    Decided February 14, 1948.)

      Messrs. Roth é Pollack, for appellees.

      Messrs. Reiser & King, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga county.

In the action; the plaintiffs, appellees herein, sought a declaration by the court holding a judgment secured by the defendant, appellant herein, unenforceable by reason of the provisions of Section 11663-1, General Code.

The real question here presented is whether the property tendered, and accepted by the appellant as security for a debt, constituting the predicate for the judgment in question, and encumbered by a mortgage to the appellant to secure such indebtedness “at any time was or is now held as a homestead” by the appellees.

The appellees’ contention that such judgment is unenforceable is based upon the application of the provisions of Section 11663-1, General Code, to the facts-showing tli,eir relation to the mortgaged property.

From the record it appears that the appellees purchased, on March 1, 3926, a two-family apartment house on 81st street in the city of Cleveland, and gave a mortgage to the appellant covering such property. This mortgage was foreclosed. The proceeds of the-sale of such property were insufficient to pay the-amount of the mortgage debt.

It appears further that the appellees in 1924 had purchased another house on 76th street in the city of Cleveland, which house they occupied as a home and residence for some two years, when they moved to a house on Ansel road, where they lived after the purchase bf the 81st street property.

It is clear that no part of t'he 81st street property, which was mortgaged to the appellant, and which constitutes the basis of the claim of appellees that the provisions of Section 11663-1, General Code, render the judgment for the deficiency of the mortgage debt on such 81st street property unenforceable, was ever at any time occupied by the appellees as a‘ home, homestead, or in any other way.

The claim of the appellees is based upon the assertion that they intended to occupy one of the apartments in the 81st street property as a home, and' certain other facts and circumstances which they insist show that they had such intention.

Before discussing these, it is well to examine the-terms of the statute in question as far as they are applicable.

Section 11663-1, General Code, provides that any judgment for money rendered in a court of record in this state upon any indebtedness, which is secured or evidenced by a mortgage on real property, upon which r,eal property there has been located a dwelling for not more than two families which has been used in whole or in part as a home, or which at any time was held as a homestead by the person who executed such mortgage shall be unenforceable as to any deficiency remaining due thereon after the expiration of two years from the date of the confirmation of any judicial sale of such property.

There are two significant provisions in this section when considered as pertinent to the instant question:

(1) Which has been used as a home by the mortgagor.

(2) Was at any time held as a homstead.

It is admitted that the premises were never occupied or used by appellees as a home or homestead, so that the first provision just noted may be eliminated from consideration.

It is, however, strenuously asserted by appellees that ever since the purchase of the 81st street property they held it as a homestead until it was sold on foreclosure.

Attention is now directed to the pertinent facts to determine whether it may be considered that any part of the premises was at any time so held by appellees as a homestead.

There is substantial evidence that the appellees purchased the property in question (the 81st street apartments) with the avowed intention of occupying the second floor apartment as a home. Under contract with the vendor, they permitted the occupying tenant, their grantor, to remain for some two years pending the acquisition of another home. This agreement was evidently a factor in the purchase. Efforts were made by appellees to secure possession of the second floor apartment, but were unsuccessful by reason of the agreement to permit the grantor tenant to remain until a new location could be secured.

At the time the tenant (grantor) did vacate the premises Matchay or Adair Vekoske, one of the appellees, was suffering from the effects of an explosion in his place of employment, which rendered him unable to work for several years.

It further appears that the premises occupied by appellees during their ownership of the 81st street property were unsuitable in many ways and that the' latter location would have been more convenient for their children in attending school.

In opposition to the implications arising from these facts it appears that the appellees could have occupied the ground floor apartment of the 81st street property at any time, no contract or agreement as to continued occupancy thereof having been entered into between the appellees and the tenant of the lower floor apartment.

The appellees moved from a home they occupied on 76th street to another home on Ansel road, while owning the mortgaged premises.

Turning again to the statute herein involved — Section 11663-1, General Code — it is doubtful if language more comprehensive could have been selected for the purpose of defining the character of premises, which, through the operation of a mortgage thereon would effect a limitation upon the collection of a deficiency judgment due to the inadequacy of the sale price of such mortgaged premises.

This is not a statute creating a homestead. It is a statute of limitations affecting the life of a judgment. Lash v. Mann, 141 Ohio St., 577, 49 N. E. (2d), 689.

In Montalto v. Yeckley, 138 Ohio .St., 314, 34 N. E. (2d), 765, Section 11663-1, General Code, was held constitutional, but was held not to apply to a building primarily devoted to business purposes.

In State, ex rel. Squire, Supt. of Banks, v. Pejsa, 148 Ohio St., 1, 72 N. E. (2d), 374, it is held that the statute applies even though such a property so sold is only a portion of the parcel of land originally mortgaged.

This statute involves consideration of several different tenures of real property- — (1) a home, (2) a farm dwelling, (3) a homestead, (4) a homesite. The statute provides that (1) and (2) cause the application of the limitation where such property has been used in whole or in part as such and that (3) and (4) cause such application of limitation where such property was or now is so held.

Now it is difficult to imagine a mere homesite being used or occupied as a homestead or home or a place of residence.

“Homesite” is defined by “Webster’s New International Dictionary” (1945) as being “a location suitable for a home.” Manifestly, if such location is so held, it is simply because the owner at some time intends to erect a homestead or building thereon which he will occupy as a home for himself and family.

The application of the limitation is dependent here upon the intention of the owner. Paralleling the provisions as to homestead and homesite in the statute, it is apparent that either may, therefore, be merely held as such and that user or occupancy is not made a sine qua non for the application of the limitation.

It must be inferred, therefore, that the Legislature intended application of the limitation even though the building mortgaged was not actually occupied as a homestead, if it be made clearly to appear that the owner entertained a bona fide intention to occupy the building at some later time as a homestead.

The evidence submitted in the record unquestionably shows that appellees entertained such intention as to the property herein involved.

Some question is made as to the name of the owner, but it clearly appears that the parties against whom the judgment is sought to be enforced were the mortgagors of the property involved. The judgment is affirmed.

Judgment 'affirmed.

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

" Matthews, P. J., Ross and Hildebrant, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District. -


author: By the Court.

text:
    The American Druggists’ Fire Ins. Co., Appellant, v. Boeckh, Appellee.
    (No. 6917
    Decided February 9, 1948.)

      Messrs. Becker & Loeb, for appellant.

      Mr. Aubrey M. Foiles, for appellee.
   By the Court.

Notice of appeal was filed on questions of law and fact. The action was not a chancery •case. The appeal is reduced to an appeal on questions of law.

The plaintiff sued to recover the balance due on an account, using the ‘ ‘ short form ’ ’ of petition.

The answer was in effect a general denial.

Verdict was instructed for defendant at the close of nil the evidence.

From the bill of exceptions it appears that the plaintiff was the owner of an office building; that early in the year 1934 the defendant, Elmer H. Boeckh, made arrangements with an employee of plaintiff for the rent of an office in plaintiff’s building; that defendant told such employee he and his associates intended to incorporate; that he occupied the office for some months without being required to pay rent; that later, after having so occupied the office, for several months, an incorporation of defendant and his associates was effected under the name of E. H. Boeckh & Associates, Inc.; that from the time rent was charged in 1934 until 1941, monthly bills were rendered this defendant personally and never in the name of the corporation; and that at no time did defendant object to bills being so rendered. A letter dated March 14, 1941, was offered in evidence by plaintiff. This letter was written by' defendant to plaintiff’s employee and in it defendant stated:

“I am not down in Washington on my own volition. I have been drafted into active duty by the Army, through no fault of my own. Before you start any wrecking without giving me an opportunity to protect my interest, it might be a good plan to look into the fact that Congress has passed a Soldiers and Sailors Relief Act to cope with such situations.

“I am sending Miss Ward in with a check Saturday, I assume no obligation for the period in which you prevented access to the office. I am endeavoring to go to Cincinnati the latter part of next week.”

The letter was signed “E. IT. Boeckh, Major (C. A. C.) Q. M. C.”

The court refused to permit it to be introduced in evidence. The letter is attached to the bill of exceptions, being properly identified.

It also appears-from the evidence that payment of rent was made by checks signed in the name of the corporation, that the name of the corporation was carried on the office door and in the building directory in the ground floor lobby, and that an actual incorporation existed after several months occupancy of the office by the defendant.

The court committed error, prejudicial to plaintiff, in excluding the letter of defendant to plaintiff. This letter did not mention the corporation, but from its terms apparently recognized a personal relationship between the defendant and plaintiff.

A factual issue was presented by the evidence, whether the defendant was a tenant of plaintiff.

The action of the court in instructing a verdict for defendant could be justified only if there was no substantial evidence supporting 'the cause of action of plaintiff.

There was such substantial evidence, and, as indicated, the court excluded other evidence which should have been admitted.

The judgment is reversed and the cause remanded for further proceedings.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.