author: Carter, J.

text:
    Kercher, Appellee, v. City of Conneaut, Appellant.

      (No. 462
    Decided March 14, 1945.)

      Mr. Howard M. Nasor and Mr. W. L. Countryman, for appellee.

      Mr. Harold E. Kauffman, city solicitor, and Mr. Stephen F. Perry, for appellant.
   Carter, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Ashtabula county. The parties will be designated as plaintiff and defendant. Due to the numerous issues involved, we shall state the facts quite fully from the pleadings.

The cause was tried in the Common Pleas Court and a verdict was rendered in favor of plaintiff for $5,000. Motion for a new trial was overruled and judgment was rendered on the verdict. The operative facts, as alleged in the petition of plaintiff, are substantially as follows: The defendant is a municipal corporation. Among certain dedicated streets under its control is one known as Broad street which extends in a northerly and southerly direction, is paved and is about 40 feet in width from curb to curb. Broad street is depressed to a considerable degree in order to enable the passage of the street under the railway right of way of the New York Central Railway Company. ■ The tracks of the railway company are carried over Broad street by means of certain cement construction. At a point about twenty-five feet north of the railway underpass, the west side of the street was out of repair and dangerous in that at the time herein mentioned and for many months prior thereto there existed in Broad street a hole irregular in shape, about thirty inches in width, thirty-five inches in length and about eight inches in depth, which hole constituted a nuisance in the street and should have been repaired, lighted, or in some way guarded. The defendant knew of this dangerous condition of the street, or in the exercise of its duty imposed by law should and could have known of such nuisance, but failed and neglected to in any way remove, light or guard the nuisance. At about the hour of six o’clock a. m. on April 18, 1943, as plaintiff was proceeding southerly on his bicycle oil the above-mentioned portion of Broad street, it being then dark, his bicycle was caused, by reason of the open, unlighted and unguarded nuisance in the street, to go into the hole and plaintiff was precipitated down to and upon the pavement, wrenching and twisting the muscles and ligaments of his body generally and of the bones of liis left hand and wrist in particular. He sustained a transverse fracture in the middle of the index metacarpal bone of the left hand, n fracture of the middle finger, concussion of the brain, laceration of the right side of the temple requiring stitches, contusions at and about the right eye, all of which have resulted in injury to his nervous system generally. He has secured surgical and medical treatment in connection with which the bones of his left hand were set, but, by reason of having been fractured in fragments, his hand has been left in a permanently deformed and weakened condition. The laceration of his temple was closed, and injuries medically treated ■generally. He is 25 years of age and at the time the injuries were received was in a healthy condition, employed at manual labor earning and able to earn the sum of $150 per month, and he lost three months time by reason of the injuries and has been unable to resume his former employment. He believes and avers that his injuries have incapacitated him from earning such livelihood and progressing in his employment as was possible before the receipt of his injuries and that defendant was unlawfully negligent and careless in the following respects: In permitting a place of danger to remain in the public street, when the defendant knew or in the exercise of ordinary care could and should have known thereof; in failing and neglecting to inspect the street to the end of ascertaining its condition and dangers, as aforesaid; in failing and neglecting to repair the hole in the street and to remove the nuisance under the circumstances as aforesaid; in failing and neglecting to place a guard of some description about the place of danger in the public street j and in failing and neglecting to place a light at the place of danger so that persons lawfully using the street might be warned thereof. He further avers that each of the unlawfully negligent and careless acts and omissions of defendant was the proximate cause of his injuries; and that plaintiff had no knowledge of any of these acts of omission on the part of defendant. He prays judgment in the amount of $15,000'..

An answer was filed, the material parts of which are as follows:

Defendant admits that it is a municipal corporation as alleged in the petition but denies all and singly the other allegations in the petition contained, and by Avay of separate defense says that if it should be found, that the defendant Avas guilty of any negligence in any respect, which it denies, the accident and injuries, if any, which plaintiff received were proximately contributed to by his negligence; that one of the acts of negligence of the plaintiff which contributed to his injuries was that plaintiff rode the bicycle on the street between sunset and sunrise of April 18, 1943, Avitliout having the bicycle equipped with a lamp and without keeping a lamp lighted, in violation of section 191 of the revised ordinances of the city of Conneaut,, which ordinance Avas then and there and still is in full force and effect, and provides:

“Section 191. It shall be unlawful for any person or persons to ride a bicycle within the city of Conneaut, Ohio, Avithout having such bicycle equipped with a good bell, which shall be rung at all times when necessary to Avarn people of the approach of such rider, and Avithout having such bicycle, between sunset and sunrise, and being ridden upon the streets of Conneaut,, equipped with a good lamp, which shall be kept lighted between such times.”

Defendant further alleges that plaintiff was guilty also of other acts of negligence not herein specified in detail which directly contributed to his injuries, and prays that the petition be dismissed.

A reply was filed denying each and every allegation contained in the answer except allegations which are admissions of allegations contained in plaintiff’s petition.

Twelve separate assignments of error are urged in the brief of defendant. They are as follows :

First, the trial court erred in overruling defendant’s motion for a directed verdict upon plaintiff’s opening statement.

Second, the trial court erred in excluding competent testimony offered on behalf of the defendant.

Third, the trial court erred in refusing to instruct the jury that the testimony of Thomas Spellacy on cross-examination with relation to his convictions in Municipal Court could be considered as reflecting on his memory and testing his recollection.

Fourth, the trial court erred in overruling defendant’s motion for a directed verdict at the close of the plaintiff’s case.

Fifth, the trial court erred in refusing to charge the jury before argument as requested by defendant in the second request to charge.

Sixth, the trial court erred in refusing to charge the jury before argument as requested by defendant in the fourth request to charge.

Seventh, the trial court erred in refusing to charge the jury .before argument as requested by defendant in the sixth request to charge.

Eighth, the trial court erred'in refusing to charge the jury before argument as requested by defendant in the eighth request to charge.

Ninth, the trial court erred in the general charge to the jury.

Tenth, the trial court erred in overruling the defendant’s motion for a new trial.

Eleventh, the judgment was excessive.

Twelfth, the judgment is against the manifest weight of the evidence.

As to the first error assigned, that there should have been a directed verdict upon plaintiff’s opening statement, suffice it to say that we have read plaintiff’s opening statement and, assuming a cause of action is set out in plaintiff’s petition, which we will discuss later on in this opinion, we are satisfied that the court was not in error in overruling defendant’s motion on that ground.

As to the second error urged, that the court erred in excluding competent testimony offered on behalf of defendant, the testimony of a witness by the name of Spellacy was presented by way of deposition, the deposition having been taken at the insistence of plaintiff. The following question in the deposition was propounded to the witness by counsel for defendant on cross-examination:

“Q. Had he been looking right straight ahead all the time you watched him? All the time you watched him he was looking that way, right straight ahead, he wasn’t looking down at the pavement?”

On the trial plaintiff objected to the form of the question and the court sustained the objection. Defendant excepted and read into the record the following answer the witness gave to the question in the deposition:

“A. I didn’t say he was looking down at the pavement. I did say that he was looking straight ahead.”

It is claimed that no objection on any ground was made to this question at the time of. taking the deposition but that objection was made for the first time at the trial and it is urged that to exclude the answer was highly prejudicial to defendant. We are cited to Section 11547, General Code. Assuming thal the court should have overruled the objection by reason of the provisions of Section 11547, we think no prejudicial error intervened in this regard. It is hardly conceivable that, had the question been answered, the jury would have found for defendant; in such a situation wo think the provisions of Section 11364, General Code, apply. The witness testified that the plaintiff was looking straight ahead when he struck the hole. That question was answered and in the record, i. e., “He was looking straight ahead.” There was no prejudicial error in this regard.

As to the third error urged, that the trial court erred in refusing to instruct the jury that the testimony of Thomas Spellacy developed on cross-examination with relation to his convictions of certain offenses in Municipal Court could have been considered as reflecting on his memory and testing his recollection, this error is predicated upon the theory that Spellacy was unable to remember any of these convictions while lie could remember occurrences very vividly on April 18, 1943, that defendant was entitled to have the jury consider the inference from this testimony, and that if the witness could not remember these convictions which affected him personally, he certainly could not remember the accident in such detail without a great deal of prompting by some one. It is claimed that, inasmuch as the court did not so instruct the jury, the defendant could not even comment on that point of argument without being guilty of misconduct. We are unable to understand the logic in the claim that the defendant could not comment on that point in argument. Nowhere was there any instruction' that counsel could not comment on that fact to the jury. Certainly counsel could have so commented without being guilty of any misconduct; counsel have the undoubted right in their arguments to draw inferences from established facts and argue those inferences. Secondly, we know of no law that required the court to give that instruction. We do think that the court in its discretion, on application having been made by counsel, could have instructed the jury that it could take into consideration the fact that the witness apparently could not remember all of these convictions. However, the court refused to do so. Such was not an abuse of discretion on the part of the trial court. The court in its general charge charged on the question of weight of the evidence and informed the jury that it was to weigh the evidence, which of course we must assume it did, and in ■weighing the evidence without doubt the jury took that fact into consideration. We must assume that jurors ■will take into consideration testimony which indicates untruth without being instructed by the court that they may do so. There is no reversible error in this regard. We find nowhere in the record where evidence was introduced that there were any convictions of offenses. Further, the evidence discloses that the witness did not deny all the convictions claimed but admitted arrests for certain offenses in the city of Conneaut. The court at the time made the following comment:

“By the court: Well, the only purpose would be testing his recollection of things that happened of more recent date than matters to which he testified. It might be admitted for that purpose. Do you claim any other purpose for it?
“Mr. Kauffman: No.”

The fourth assignment of error is that the court erred in overruling defendant’s motion for a directed verdict at the close of plaintiff’s case. We might suggest that this assignment -of error was waived by reason of the fact that the case proceeded and defendant’s evidence was introduced. Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199. However, an examination of the record discloses that a similar motion was made at the conclusion of all the evidence. Therefore, we are disposing of this claimed error, it being urged that plaintiff’s evidence failed as a matter of law to show a cause of action against defendant, under the provisions of Section 3714, General Code. It has been held in this state repeatedly that municipal corporations are not liable for common-law negligence when operating in a governmental capacity unless made so by statute. We must look, therefore, to the statute fixing liability of municipal corporations. Section 3714, General Code, provides:

“Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, acqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

This statute has been construed many times by the courts of this state, not always harmoniously. Some courts have laid down the doctrine that it is the duty of the court to define a nuisance, and the function of the jury to determine whether a condition or situation presented constitutes a nuisance. It is somewhat difficult to comprehend just what is contemplated by that holding. Is it always a jury question whether a nuisance exists in a particular case? We think there might be instances wherein the court would be entirely justified in holding as a matter of law that a certain condition existing in the street did not constitute a nuisance. The true rule as we understand it is: If the condition of the street is in such a state of disrepair or otherwise wherein reasonable minds might differ as to whether a nuisance exists, in that event a jury question is presented. Of course, the city must have actual or constructive notice of such condition and a reasonable length of time thereafter to repair same before liability arises. There has existed over the years some apparent misunderstanding with reference to the use of the word negligence in charges to the jury and as used in decisions of our courts, and it has been urged that negligence has no place iñ a charge under Section 3714, General Code, the liability being created by statute. It is the view of the writer of this opinion that this confusion is due largely to a possible misunderstanding of the word, negligence, as used in charges and decisions. We think it clear from these decisions that the negligence referred to therein refers to the failure or neglect on the part of the city to repair or remove such nuisance after knowledge, actual or constructive, of its existence. A nuisance in the street, without knowledge actual or constructive, creates no liability as against the municipality. There must he knowledge as well as the existence of a nuisance and no doubt this is the negligence to which reference is made by our Supreme Court in the recent case of Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, wherein the court speaking through Judge Hart held that Section 3714, General Code, provides a general rule of conduct and makes negligence the basis of liability for its violation unless an absolute nuisance is proven to exist. City of Cleveland v. Amato, 123 Ohio St., 575, 176 N. E., 227; City of Cleveland v. Pine, 123 Ohio St., 578, 176 N. E., 229, 74 A. L. R., 1224. Those cases are referred to in the Taylor case, supra, with the observation by the court, that those eases have never been modified or reversed and in the judgment of the court clearly state the basis of liability under Section 3714, General Code. It is, therefore, clear that negligence is involved in an action prosecuted under Section 3714, General Code. The negligence may furtiier consist of a failure on the part of the municipalities to keep their streets in a reasonably safe condition for travel in the ordinary modes; when not so kept, of course, a. nuisance exists; if so kept, no nuisance exists. With these general observations let us now pass to the errors urged in the instant case.

It is urged that the duty imposed by Section 3714, General Code, is not ah absolute duty, that its duty ends if it keeps its streets in a reasonably safe condition for travel. In this statement we concur unhesitatingly. It is urged further that the reasonably safe condition does not mean such under all circumstances, but only when the highway is used for travel in the usual mode, and counsel cite Taylor v. Cincinnati, supra, wherein the court so holds. Conceding such to be the law, it is urged that the hole in question created no liability as against the city for the reason that the hole, even talcing the testimony of plaintiff’s witness that it was three by two and one-half feet in length .and width and eight inches deep, as a matter of law would create no liability to the plaintiff for the reason that the street was reasonably safe for public travel in the ordinary mode. .It is urged further that plaintiff in using a bicycle at the time was not using the highway in accordance with the usual mode of travel; that had he been driving a car or other ordinary vehicle commonly used on the highway the accident would not have happened and therefore there would have arisen no liability on the part of the city. That is an ingenious argument, one never before raised during my nineteen years of service- on the bench. Some authorities outside Ohio have been cited apparently supporting to some extent that argument. It is a well-known fact that bicycles have been in use in this state for many years and quite extensively used upon our streets and highways as a means of transportation. The Legislature, in adopting the Uniform Traffic Act, Section 6307-2 et seq., General Code, recognized a bicycle as a kind of vehicle. Bicycles are also recognized in Sections 6307-40 and 6307-50, General Code, and in other sections of our Uniform Traffic Act. In the case of Sherburn v. Armstrong, 36 Ohio Law Abs., 66, 42 N. E. (2d), 716, it is held that a bicyclist approaching an intersection in a lawful manner has the right to proceed uninterruptedly through the intersection in preference to a motor vehicle approaching from the opposite direction and attempting to make a left-hand turn across the path of the bicyclist. In 20 Ohio Jurisprudence, 630, Section 1, is found the following:

“A highway is a road or way open to the public at large, for the purpose of travel or the transportation of persons or property, without distinction, discrimination or restriction.”

It is, therefore, quite clear that the Legislature of this state has recognized bicycles as a means of transportation over our highways, afforded protection to a bicyclist and subjected him to restraints. As civilization advances new methods of transportation upon and over our highways will no doubt be developed. A bicycle is one of those new developments and if they are to be excluded from the provisions of Section 3714, General Code, the Legislature should so provide. The statute makes no exception but provides that the streets be kept free from nuisance. We think the statute includes one riding a bicycle. Plaintiff had the undoubted right to travel over this street on a bicycle.

There is another matter to be noted in passing. There is an ordinance of Conneaut prohibiting the riding of bicycles upon the sidewalks. A bicyclist, therefore, is required either to cease using same or operate it on the street. While this fact would not alone impose liability on the city provided a bicyclist was not of a class included in Section 3714, General Code, it is mentioned as a circumstance in the case. This court in the case of City of Girard v. Smrek, 52 Ohio App., 135, 3 N. E. (2d), 560, held that coasting might be considered an ordinary mode of travel in the absence of a restricting ordinance. While the facts in that case are not identical with the instant case, a principle is announced therein. The judgment in that case was refused certification by the Supreme Court.

We might observe further that, assuming this hole was four, five or six inches in depth and the size as indicated by the evidence, to hold such would not be a nuisance as a matter of law would be in our judgment exceeding our authority. Such hole might not seriously damage a car passing over it. On the other hand, no doubt every car traveling over a hole of this size and depth would to some extent be damaged, particularly a tire, although the hole might not be of sufficient depth to cause a wheel to collapse, or the cutting of a tire causing a blowout; nevertheless, such a hole would without doubt damage to a certain extent every car traveling over it in the usual mode. It could hardly be said that if a tire was cut by being driven over the hole that a cause of action would not arise. A nuisance need not be of such proportions as to cause the smashing of a wheel or overturning of a car or cause personal injury in order to constitute an actionable nuisance; as said by our Supreme Court in the case of Taylor v. Cincinnati, supra: “ ‘Nuisance’ is a term used to designate the wrongful invasion of a legal right or interest.”

It is urged that a bicycle could be easily upset or damaged by a hole which would in no way interfere with an automobile or horse-drawn vehicle, and in order to keep the streets in reasonably safe condition for bicycles it would make it expensive for the municipalities. We might observe that it is a rare occasion when a bicyclist brings an action in damages against a municipality. As I now recall, this is the only case ever brought to my attention while serving upon the bench. If this be the general rule then municipalities are not overcrowded with actions of this character. We think the court committed no error in refusing to state to the jury that Section 3714, General Code, had no application to one riding a bicycle. We think that under all the evidence in this case a jury question was presented as to whether a nuisance existed in the street which was the proximate cause of plaintiff’s injuries, and that reasonable minds might differ on that issue and as to whether plaintiff was guilty of contributory negligence.

It is urged further that a verdict should have been directed on the ground that plaintiff’s evidence raised a presumption of contributory negligence which was not refuted or counterbalanced by evidence of equal weight or countervailing effect. It is pointed out that plaintiff admitted he rode the bicycle down towards the subway in semidarkness, the bicycle not being equipped with a good lamp as required by an ordinance of the city of Conneaut. The ordinance provides that a bicycle must be equipped with a good lamp and kept lighted between sunset and sunrise. Nothing is said about the candle power of such light, neither is there any reference made in the ordinance to the fact that the lamp must be attached to the bicycle. It is stipulated that the sun rose in Conneaut on the particular morning at 6:40 and it is claimed that the evidence is undisputed that the accident occurred around 6:20 and not later than 6:25 a. m. We have read the testimony of the witnesses bearing on the question as to just what time the accident happened. There is some testimony by the plaintiff himself that it happened about 6:20 to 6:25. However, a perusal of his entire examination and cross-examination makes it somewhat doubtful under his testimony as to just what minute the accident happened. The court left that issue to the jury. Under the evidence we think there was no prejudicial error in the court’s action in this regard.

Disposition has heretofore been made in this opinion as to the duty of the municipalities to keep their streets in repair and free from nuisance, and we have held that this requirement applies in favor of a bicyclist using the street. Not only must a municipality keep its streets free from nuisance, but it must keep its streets in reasonably safe repair. Was the street in question in reasonably safe repair? One of the witnesses for the city testified that in his judgment the street was dangerous. It is urged that the witness meant in the operation of bicycles thereon. However, the witness did not so limit his answer and we find no place in the record where such intention is expressed.

As to driving into the fog, the testimony by the plaintiff is substantially as follows: There was a layer of fog which extended a short distance above the street at the place in question. It was not a general heavy fog.

Under the circumstances could it be said that, by so driving, plaintiff was guilty of negligence as a matter of law or was that question properly submitted to the jury? Under these circumstances as disclosed by the evidence would an ordinarily prudent person not knowing the hole was there, as plaintiff so testifies, dismount from- his bicycle and walk through this small amount of fog or would an ordinarily prudent person have proceeded as did plaintiff? We think that under these circumstances for one to have dismounted and walked through this layer of fog would have been extraordinary care; that plaintiff did exactly what an ordinarily prudent person would have done under the same or similar circumstances; that reasonable minds might reach different conclusions as to negligence on the part of the plaintiff in so doing; and that we could not hold' as a matter of law that plaintiff was guilty of contributory negligence, such being a jury question.

Now, as to the bicycle not being equipped with a good lamp as required by the city ordinance, it is claimed by counsel for plaintiff that this ordinance was not in effect at the time. The court charged the jury that the ordinance was in effect. We think the court was not in error in so doing. We are, therefore, assuming it was a valid ordinance which provided that the bicycle must be equipped with a good lamp which must be kept lighted, and let us assume further that the plaintiff was guilty of negligence as a matter of law in operating the bicycle without it being equipped with a good lamp. Such would not as a matter of law preclude plaintiff’s recovery, as proximate cause is involved which was a jury question. Smith v. Zone Gabs, 135 Ohio St., 415, 21 N. E. (2d), 336, a Trumbull county case wherein this court held as now urged by defendant in this case. The Supreme Court reversed the judgment of this court, however, by a divided court and held that the fact the plaintiff concededly violated an ordinance in crossing a street at a place where prohibited did not as a matter of law defeat recovery, and the court permitted recovery. In conformity with that holding, if plaintiff in this case was operating his bicycle without it being equipped with a good lamp or with no light at all, a jury question would bo presented as to proximate cause.

It is further claimed that as a matter of law the bicycle was not equipped as required by ordinance and that the court should have so charged the jury instead of permitting the jury to pass on that question. Black’s Law Dictionary (3 Ed.), 672, under “Equipment,” states, “an exceedingly elastic term, the meaning of which depends on context,” and cites a number of authorities sustaining the statement. It will be observed that the ordinance does not provide that the lamp must be attached to the bicycle nor whereon the lamp shall be attached. We are of the view that “equipped” does not require attachment to the bicycle. What is the meaning of lamp as used‘in this ordinance. A lamp is defined as any device for producing artificial light. In this case, plaintiff had in his hand clasped to the handlebar a two-cell flash light which cast its rays, according to some of the testimony in the record, a number of feet upon the pavement ahead of the bicycle. Let us assume, that plaintiff carried on this bicycle a large light which illuminated the pavement ahead much better than the ordinary lamp used upon a bicycle, and sustained the injuries, could it be said that because he did not have a bicycle lamp attached that he could not recover ? Such could hardly be urged. There is nothing in the ordinance requiring the light to be of any particular candle power, but a good lamp which shall be kept lighted. Who is to determine whether such lamp is a good lamp and whether the bicycle was equipped with such? Unquestionably the jury. Having reached the above conclusion, we are of the opinion that the court was not in error in submitting the questions as to whether the bicycle was equipped with a good lamp and whether the ordinance was violated.

The fifth assignment is that the trial court erred in refusing to charge the jury before argument as requested by defendant in the second request to charge. The record fails to disclose that these requests were presented as a series, or separate and independent of each other. However, the court proceeded to give and refuse some of these requests.

The second request is:

“The court instructs you that an ordinance of the city of Conneaut, Ohio, has been introduced in evidence, which, so far as the same is applicable to the facts of this case, reads as follows: ‘It shall be unlawful for any person or persons to ride a bicycle within the city of Conneaut, Ohio, without having such bicycle, between sunset and. sunrise, and being ridden upon the streets of Conneaut, equipped with a good lamp, which shall be kept lighted between such times.’ I further instruct you that at the time of this accident said ordinance was a valid and binding ordinance of the city of Conneaut, Ohio; that at the time said accident occurred the plaintiff violated said ordinance, and that such violation was negligence as a matter of law on the part of the plaintiff, and if such negligence proximately contributed to plaintiff’s injury he cannot recover in this action, and your verdict should be for the defendant.”

This request was properly refused, clue to the observations made above, as it was requested therein that the court say to the jury that plaintiff violated the city ordinance.

The sixth assignment of error is that the trial court erred in refusing to charge the jury before argument as requested by defendant 'in the fourth request to charge. The fourth request is:

“The court instructs you that if you find that the plaintiff carried a lighted flashlight in his hand at the time of this accident, without having said bicycle equipped with a lighted lamp or light at the time of said accident, and you further find that said accident occurred before sunup on April 18, 1943, that would be a violation of this ordinance on the part of the plain,tiff. ’ ’

It will be observed in this requested charge that it was left to the jury to determine whether the accident occurred before sunup. In the light of the above observation no error was committed by the trial court in refusing this request as the requested charge contains therein the words, “Without having said bicycle equipped with a lighted lamp or light at the time of said accident,” in other words, that the bicycle must be equipped with a lighted lamp and that the lighted flashlight would not be sufficient. This charge as requested also would be confusing to the jury.

The seventh assignment of error is that the trial court erred .in refusing to charge the jury before argument as requested by defendant in the sixth request to charge. The sixth request is:

“The court instructs, you that the following ordinance was a valid and binding ordinance of the city of Conneaut, Ohio, at the time of this accident, so far as the same is applicable to the facts of this case: ‘It shall be unlawful for any person or persons to ride a bicycle within the city of Conneaut, Ohio, without having such bicycle, between sunset and sunrise, and being ridden upon the streets of Conneaut, equipped with a good lamp, which shall be kept lighted between such times. ’ I instruct you that the duty of the city of Conneaut imposed by Section 3714 of the General Code of Ohio to keep its streets open, in repair and free from nuisance requires only that it keep its streets in a reasonably safe condition for ordinary lawful travel over the same. And if you find that plaintiff at the time of said accident was violating said ordinance, then I say to you that plaintiff’s use of said street at the time of said accident was not an ordinary lawful use thereof, and in that event he cannot recover in this action and your verdict should be for the defendant.”

It will be observed that there is contained in this request the following language: “If you find that plaintiff at the time of said accident was violating said ordinance, then I say to you that plaintiff’s use of said street at the time of said accident was not an ordinary lawful use thereof, and in that event he cannot recover in this action and your verdict should be for the defendant.” We are not inclined to hold that if one violates a traffic statute or a city traffic ordinance, however insignificant the violation, he cannot thereafter maintain an action or recover against another who was or might have been negligent or failed to perform a statutory duty. 'We would eliminate proximate cause entirely from the picture in so holding. In the instant case, suppose that the city admitted a nuisance existed in the street in question, that the city had knowledge and sufficient time to repair, and that plaintiff admitted he violated the city ordinance as claimed, would that in and of itself preclude the right of plaintiff to bring his action and submit the question of proximate cause to the jury? The failure to have the bicycle equipped, as claimed by defendant, might not have been the proximate cause and the jury might have properly found that the hole in the street constituted the proximate cause. Smith v. Zone Cabs, supra. To hold that, when established or admitted, violations of statutes or ordinances preclude recovery as a matter of law would be flying in the face of all the holdings wherein recovery was permitted even though a violation of specific requirements was established or admitted. The case of Mossman v. City of Cincinnati, 26 Ohio Law Abs., 61, 34 N. E. (2d), 246, has been cited which holds that the use of a street in violation of law can not be characterized as a use in the ordinary way. We can not concur in that holding. Could it be said that these violations when admitted preclude recovery even though they be specific requirements? We think not, neither do we think such is the established rule in this state. Many states do not make violations negligence per se and Ohio has adopted that rule.

The eighth assignment of error is that the trial court erred in refusing to charge the jury before argument as requested by defendant in the eighth request to charge. That charge is as follows:

“One who voluntarily goes upon a street which he knows to be dangerous is guilty of such negligence as to preclude a recovery in case of injury. And so I say to you that if you find that at the time of the accident the plaintiff kfiew of the- existence of the hole in the pavement, and you further find that at the time of the accident said hole was dangerous, and that plaintiff knew, or in the exercise of reasonable care should^have known of said danger, then I say to you that it was negligence for the plaintiff to have run into said hole, and that such negligence would prevent the plaintiff from recovering in this action, and your verdict should be for the defendant.”

The first sentence states that one who voluntarily goes out on a street which he knows to be dangerous- is guilty of such negligence as to preclude a recovery in case of injury. We think that is a dangerous doctrine to lay down and is misleading to the jury. We all know that, due to modern traffic, the street or highway is a dangerous place to be. Must we stay off the highway because of that fact and if we do not, but go upon the. street, in case of injury must we be precluded from recovery even though we might have been at the time in the exercise of ordinary or the greatest degree of care? We think not, as again proximate cause is eliminated. At the present time and for the last month or so our highways in many places are and have been in a dangerous condition for traffic. If we have knowledge of that fact and go upon the highway and are injured must we be precluded from recovery? We think that the charge was misleading and properly refused. As to the fog, we have already made reference to this urged error; suffice it to say that plaintiff testified he had no knowledge of the hole in the street. On motion for directed verdict we must resolve the evidence most favorable to the one against whom the motion is directed. The case of Davis v. Shutrump Co., 140 Ohio St., 89, 42 N. E. (2d), 663, cited, was a case which arose in Mahoning county. That case is clearly distinguishable from the instant case.

The ninth assignment of error is that the trial court erred in the general charge to the jury. In such charge the court charged that the defendant was not only liable under Section 3714, General Code, to keep its streets open, in repair and free from nuisance, but was also liable for negligence as specified in the petition, for common-law negligence and for failure to perform other duties not contemplated by Section 3714, General Code.- The first specification of negligence is as follows: Permitting a place of danger to remain in the public street when defendant knew or in the exercise of ordinary care could and should have known thereof. This specification contemplates a nuisance. The court charged the jury as follows:

“As law applicable to this case, you are further instructed that as a municipal corporation, the defendant city had the care, supervision and control of its streets and that by the provisions of General Code Section 3714, it was its duty to cause them to be kept open, in repair and free from nuisance. The court says to you that the negligence, if any, of the defendant, as alleged by the plaintiff would, in effect, be the failure to exercise ordinary care on its part in keeping its streets open, in repair and free from nuisance and in a reasonably safe condition as required of it under Section 3714, General Code, heretofore called to your attention, and in that connection, the court says where there is a permitted maintenance on behalf of the city or a continued condition which renders travel thereon dangerous, a municipality is liable for the injuries which are a direct and proximate result of the maintenance of that condition for such time that it should have acquired knowledge thereof and had a reasonable time thereafter to remedy same. Therefore, if Broad street, in this particular action, at the time complained of, was in a dangerous and unsafe condition, then such condition was a nuisance and its continued existence negligence. Bear in mind, however, that the city must have had notice of such condition or same must have existed for such a time that it was charged with 110- . tice and upon this question of notice you are further instructed that the existence of a dangerous defect in the street in order to be sufficient to constitute a liability on the part of the defendant city, it was necessary that such defendant city or the officer or officers whose duty it was to repair such defect or abate such nuisance should have, as I have heretofore stated, actual notice of the same or it must have existed for such a length of time and under the conditions that the city, in the exercise of ordinary care, would or should have had knowledge of its condition.
“Nuisance in this connection means something done or omitted to be done which has the effect of prejudicially and unwarrantably affecting the rights of another person and works damage or injury to such person. In other words, the term, nuisance, as used herein means anything wrongfully permitted which injures or annoys another in the enjoyment of his legal rights. To permit a street or a portion thereof to be in a condition dangerous to persons passing over it in the usual and ordinary modes or so as to seriously interfere with the convenient use of same would be to permit a nuisance to exist. The defendant corporation was, therefore, charged with the duty of not permitting a nuisance dangerous to the safety of persons using said street in some usual or ordinary mode to exist upon Broad' street, wThere it is claimed by the plaintiff the accident in this case occurred. A failure of the defendant corporation to exercise this requisite degree of care in the maintenance of the portion of Broad street described in this case would be an act of negligence on the part of the defendant, however, by a preponderance of the evidence and that same was a proximate cause of the accident in order to recover.

In any event, this obligation of the city included the entire traveled portion of the street'at the location of ■said accident or, in other words, all that portion or portions used by a prudent person thereon in the usual and ordinary modes of travel or use and a duty to keep the street at that place with regard to its location, its surroundings and environment in a reasonably safe and suitable condition for persons passing along or lawfully using the same. This duty required a reasonable vigilance in view of all the surroundings, that is, ordinary care, but did not exact that which was impracticable.

“Municipal corporations are not insurers of the safety of their public ways or of the lives and limbs of persons passing over them. The defendant city was not required to exercise such extraordinary care as would absolutely prevent accidents but it was the duty of the defendant city to exercise ordinary care as herein defined, to keep all portions of its streets open for public use and at the place where this accident occured, in a reasonably safe condition for the use of users of same, and in determining whether such care was exercised by the defendant city you should consider the surroundings and conditions at this point, including the condition of the street, the lighting and the conduct of the city in providing or failing to provide lights at this place or other safeguards to prevent users of this street in the exercise of ordinary care for their own safety from falling over any unnatural obstruction or defect known by it to exist or charged with knowledge of the same, in said street, and all other facts and conditions appearing in the evidence relating to this proposition.”

We discover nothing fundamentally wrong in this part of the charge dealing with nuisance. However, we prefer the definition of nuisance as found in Taylor v. City of Cincinnati, supra, which is as follows:

“ ‘Nuisance’ is a term used to designate the wrongful invasion of a legal right or interest. It comprehends not only the wrongful invasion of the use and enjoyment of property, but also the wrongful invasion of personal legal rights and privileges generally.”

The second specification of negligence is the failure and neglect to’ inspect the street to the end of ascertaining its condition and dangers. The third is the failure and neglect to repair the hole in the street and remove the nuisance. The fourth is the failure and neglect to place a guard of some description about the place of danger. The fifth is the failure and neglect to place a light at the place of danger so that people might be warned thereof. As td specifications two, four and five, we know of no statutory provisions requiring the city to inspect or place a guard or a light at a place of danger in the street. , One of the portions of the charge objected to is as follows:

“By these "pleadings are made up the issues of fact for your determination * _* *. You will further note that plaintiff alleges * * * that the defendant knew of, or in the exercise of its duty imposed by law, should have known thereof and had failed to remove, light or guard the same, and that said hole was a nuisance in said street. *! * * Plaintiff has alleged that defendant was thus negligent: in permitting a place of danger to remain in said street, in failing and neglecting to inspect said street to ascertain its condition, in failing and neglecting to repair said condition after it knew of same or should have known of same, in failing and neglecting to safely guard said place of danger, or cause a light at said place that would warn persons lawfully using said street in its condition. You will note that plaintiff, therefore, has alleged that defendant was negligent, in failing to exercise ordinary care in the discharge of its duties over the streets of said city.”

Under the holding in the Taylor case, supra, and other Ohio eases cited therein, we can see no objection to this charge. The court nowhere charged that it was the statutory duty to inspect, guard or light the particular place in question, but did state that plaintiff has alleged that defendant was negligent in failing to exercise ordinary care in the discharge of its duties over the streets of the city, in other words, that the city did not exercise ordinary care in these respects in the maintenance of its streets, in repair and free from nuisance. Undoubtedly this is the law in this state and so held by a long line of decisions of our highest court down to and including the Taylor case, supra. We are referred to the cases of Rudibaugh v. City of Niles, 56 Ohio App., 451, 11 N. E. (2d), 193, and Dzuracky v. City of Campbell, 64 Ohio App., 521, 29 N. E. (2d), 49, which were cases arising in Trumbull and Mahoning counties, disposition of which was made by this court on appeal from the Common Pleas Court. In the Dzuracky case we held that there was no specific duty to guard, inspect or light; but that a failure or neglect to do so might be taken into consideration by the jury in determining whether a nuisance existed, that is, if a nuisance did exist in the street and the place was guarded or lighted and one nevertheless was injured the question would be then presented as to whether the city exercised ordinary care in keeping its streets free from nuisance. Although there is no statutory reqirement that there must be guards or lights placed about a dangerous place in the street, nevertheless, such neglect to do so might be a failure to exercise ordinary care in the keeping of its streets free from nuisance. Negligence is involved when a nuisance exists. Selden v. City of Cuyahoga Falls, 132 Ohio St., 223, 6 N. E. (2d), 976. In the Rudibaugh case this court held that no liability was presented and rendered final judgment for the defendant and what was said with reference to negligence in that case was not necessary in the disposition thereof. However, as stated in the Rudibaugh case, to wit, “a municipality not being liable in tort for common-law negligence but only for a violation of Section 3714, General Code, a charge to the jury which bases the liability of the municipality on the proof of one or more of the ‘grounds of negligence’ alleged in the petition is highly prejudicial and erroneous.” We still adhere to the doctrine that a municipality is not liable in tort for common-law negligence but only for a violation of Section 3714, General Code. However, a failure to keep its streets free from nuisance does constitute negligence and a failure to remedy a nuisance in the street after knowledge and a reasonable time to repair constitutes negligence, that is, a failure to repair or abate the nuisance and a failure to exercise ordinary care to keep its streets in a reasonably safe condition for travel in the usual mode. However, as said in the Rudibaugh case, the liability is fixed by virtue of Section 3714, General Code. In the Rudibaugh case we find no statement to the effect that the court charged the provisions of Section 3714, General Code. In fact Judge Nichols, speaking for the court, stated in the opinion that an examination of the general charge of the court as well as the special charges given upon request of plaintiff makes it apparent that the trial court based the liability of the municipal corporation upon the ground of common-law negligence. Of course, such would be erroneous. There must be a violation of Section 3714, General Code, before liability is involved and the jury must necessarily be so charged. As said in the case of Selden v. City of Cuyahoga Falls, supra, Section 3714, General Code, does not by implication impose liability for negligence not involving nuisance, the inference being that if nuisance is involved then the question of negligence arises. Undoubtedly plaintiff had the right to set up want of inspection and failure to guard and light, and if so, evidence introduced to substantiate same would be proper and it would be proper to charge the jury on the issues of lack of inspection and want of guard or light as bearing on the question of the exercise of ordinary care in keeping the municipality’s streets free from nuisance. If the hole in question had been guarded or lighted it could hardly be claimed that such could not have'been plead by the city and established by evidence even though a dangerous condition of the street existed. The next portion of the charge objected to is as follows:

“If you find the plaintiff has proved to you by a preponderance of the evidence that the defendant corporation was negligent as alleged in the petition and submitted for your consideration and that such negli‘gence was a proximate cause of the injury * * * then your verdict will be for the plaintiff.” (Italics ours.)

Of course, this part of the charge must be considered in connection with the whole charge. The court properly charged Section 3714, General Code, and as hereinbefore indicated we conclude that the charge was proper in that regard, and the court further charged it was the duty of the municipality to exercise ordinary care to keep its streets free from nuisance. If the city failed to inspect, light or guard the hole, and such evidenced negligence on the part of the city, then such failure or neglect might be a contribution to the nuisance. Had there been guards or lights and the plaintiff was injured, the jury might have properly found under those circumstances that there was no nuisance in the street which proximately brought about plaintiff’s injuries. A jury question was thus presented and the court was not in error in giving this particular part of the charge. Taking the whole charge into consideration we think there was no error therein as urged. If these specifications are proper, and we hold they are, there was therefore presented for the consideration of the jury the question of whether Section 3714, General Code, had been violated and also the question of negligence in failing to exercise ordinary care as hereinbefore indicated. Both propositions were charged by the court which makes this case unlike Simko v. Miller, 133 Ohio St., 345, 13 N. E. (2d), 914, a case in which the judgment of this court was reversed. In the instant case there was a differentiation between simple negligence and duties imposed by statute which was not done in the Simko case.

The tenth assignment is that the court erred in ov-erruling a motion for new trial. This urged error has its basis in the things and matters which have been urged and of which disposition has been made in this opinion. There was no error in refusing to grant a new trial.

The eleventh assignment of error is that the verdict is excessive. We have examined the record in this regard and cannot say that the verdict is so large as to so shock our conscience as to require a reversal on that ground. A jury question was presented as to the seriousness of his injuries and that body concluded that $5,000 was proper damages. Neither is the verdict against the manifest weight of the evidence as urged in the twelfth error assigned. Clearly the jury under the evidence could properly have found in favor of plaintiff.

These being our conclusions, the judgment of the Court of Common Pleas is hereby affirmed.

Judgment affirmed.

Nichols, P. J., and Phillips, J., concur.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Hollos et al., Appellants.
    (No. 4035
    Decided July 12, 1944.)

      Mr. Joel 8. Rhinefort, prosecuting attorney, Mr. Jerome Jesionowski and Mr. Eclwarcl P. Buckenmyer, for appellee.

      Messrs. Hackett S Lynch, for appellant August A. Hollos.

      Mr. Mark Winchester, for appellant Lloyd H. Mercer.
   Carpenter, J.

In a joint indictment it was charged that the defendants, August A. Hollos and Lloyd H. Mercer, conspired to and did on April 20, 1943, perform an abortional operation upon Lucille Denesik from which she died on May 10, 1943. On trial, both were convicted and from that judgment separate notices of appeal on questions of law brought the case to this court.

The separate assignments of error, in most respects, raise the same questions. One group of these relates to the admission of evidence concerning a similar transaction by defendants, the operation of which was alleged to have taken place at'Monroe, Michigan, about the same time as the Denesik incident. The evidence in both cases tends to prove that by concerted action the operation was performed crudely by defendant Hollos, who was not licensed in any medical practice in Ohio, and that the care of the patients before and after the operation was handled by defendant Mercer, who was a licensed medical doctor in Ohio.

Conspiracy, though pleaded, was not an integral part of the offense charged, which was that Hollos and Mercer committed the abortion. In Ohio we have no criminal conspiracy. The conspiracy element in pleading and proof is important only as it may extend the liability for the wrong done by the unlawful act of the one to the other who did not commit such act, if it was done in’pursuance of a conspiracy to which both were parties. In other words, it creates liability against one when, in the absence of the conspiracy, it could only be several against the one who actually did it — lienee the importance of the proof of the conspiracy between these defendants, if snch existed.

To prove that both defendants had a part in the commission of the alleged crime as to Lucille Denesik, it was necessary for the state to prove, as was alleged, that they conspired to do it, and to do this the evidence of the similar Monroe transaction was offered to show the scheme or pattern of their procedure.

Section 13444-19, General Code, makes competent evidence of such other acts for that purpose. That statute is a codification of a well-established common-law principle, which was applied in Barnett v. State, 104 Ohio St., 298, 309, 135 N. E., 647, 27 A. L. R., 351, and Lyon v. State, 116 Ohio St., 265, 155 N. E., 800. In Scott v. State, 107 Ohio St., 475, 141 N. E., 19, and Curtis v. State, 113 Ohio St., 187, 192, 148 N. E., 834, it was pointed out that substantial evidence of such other offenses was all that is required, i. e., not proof beyond a reasonable doubt.

It is complained that the court, at the time this evidence was received, did not limit the jury in the use of it to that purpose. In Clyne v. State, 123 Ohio St., 234, 174 N. E., 767, it is suggested that this statute does not expressly limit the jury’s consideration of the evidence of other like acts to their bearing on the question of such * * scheme.” But even if such limitation was in order, at no time did either defendant request the court to impose such limitation, and unless so requested, its absence was not error. Patterson v. State, 96 Ohio St., 90, 104, 117 N. E., 169, L. R. A. 1918A, 583; Nappi v. Wilson, 22 Ohio App., 520, 526, 155 N. E., 151; Morton v. Murry, 20 C. C. (N. S.), 481, 29 C. D., 635.

Both defendants stood squarely upon their contention that such evidence was not proper for any purpose. In its general charge to the jury the .court did properly limit the use the jury could make of evidence of other crimes.

Defendant Hollos offered himself as a witness in his own defense and testified at length as to his past life, and denied that he knew, ever saw or ever had anything to do with Lucille Denesik. On cross-examination, he was asked about phases of the Monroe affair and refused to answer any questions that had any connection with it on the ground that his answers might incriminate him in that case. The court overruled his objections and those of his counsel and insisted-that he answer the questions. Notwithstanding the court’s orders and even his attorney’s advice that he answer, he continued to refuse to do so and finally answered all, “stand mute.”

He and his counsel based his refusal on Section 10, Article I of the Constitution of Ohio — “No person shall be compelled, in any criminal case, to be a witness against himself.”

From the indictment and the issues it presented, and from the state’s evidence in chief, defendant Hollos knew that this material issue was in the case and lie could have avoided questions about it by not taking the stand, and the Constitution would have protected him in so doing — no one could have compelled him to testify. In this respect his rights were different from and superior to those of an ordinary witness who, under subpoena, could be required to take the stand and testify on material issues. Such witness could then avail of this constitutional protection and refuse to give answers to questions which he thought might be used to incriminate him.

The precise question here is: Could the accused Hollos, having taken the stand in his own defense and testified generally on the issues on which he wished to-speak, refuse to answer questions‘on the material subject of the Monroe incident because his testimony thereon might tend to connect him with another crime?

The defendant having made himself a witness, inquiries testing his credibility as a witness were in order. Hanoff v. State, 37 Ohio St., 178, paragraph one of syllabus, 41 Am. Rep., 496; Sabo v. State, 119 Ohio St., 231, 242, 163 N. E., 28.

The Monroe affair was not merely a collateral crime, and the inquiry concerning it was not made merely to affect his credibility. It bore upon the ultimate issues in this case.

The particular question thus presented in this record has not been directly answered by the reported decision of any court in this state, but it has been considered in other jurisdictions. Michigan has a similar provision in its Bill of Rights, and its Supreme Court in People v. Dupounce, 133 Mich., 1, 94 N. W., 388, 103 Am. St. Rep., 435, 2 Ann. Cas., 246, held that when the accused takes the stand in his own behalf, he waives his constitutional right to refuse to answer any questions material to the case, though the answers to such questions tend to prove him guilty of some other crime than that for which he is on trial. This principle was recently reiterated in People v. Kouhol, 262 Mich., 529, 247 N. W., 738, 87 A. L. R., 878. That this is the general rule is indicated in the numerous cases cited in the note to the report of the Dupounce case in 2 Ann. Cas., 247, and such is the rule in the federal jurisdiction. Raff'el v. United States, 271 U. S., 494, 70 L. Ed., 1054, 46 S. Ct., 566.

The state offered in evidence and the court received over the objections of both defendants, a black leather bag containing numerous instruments, which was taken from Hollos by a police officer in connection with the Monroe transaction wherein the evidence indicated he had used some instruments taken from the bag in the two operations alleged to have been performed on that subject. There was also evidence that he had that bag ixx Ms possession when it was contended he operated upon Lucille Denesik. A doctor testified that the iixstruxnents in the bag were such as were used by doctors in vaginal and womb operations. With the state of the evidence connecting this bag with the alleged operations and the identification of the use made of the instruments in it, the court did not err in receiving it in evidence.

Defendant Hollos was arrested by the Michigan authorities on axi abortion charge in connection with the Monroe case. Over the objection of Mercer, the police officer who arrested Hollos was permitted to testify at length in the state’s case concerning a statement Hollos made in the absence of Mercer in the office of the prosecuting attorney of that county about his connection with the subject of that alleged abortional, operation.

In rebuttal the stexiographer in that prosecutor’s office who took in shorthand the Hollos statement, over the objectioix of Mercer, testified also as to the contents of that statement.

A Toledo police officer, Ralph Mxxrphy, who investigated the Denesik case, questioned Hollos after his arrest at length about that case in the absence of Mercer, axxd was permitted to testify as to the statements then made by Hollos.

The court in no way coxifined the juxy’s consideration of all this statemexxt evidence to Hollos, but it did overrule several timely-made motions by Mercer to exclude it as to him. That was dearly prejudicial error as to Mercer. Granting that the evidence of conspiracy was sufficient to warrant the admission against both defendants of evidence of acts done aixd statements made by either in the absence of the other in furtherance of the purpose of the conspiracy, subsequent statements made by one in the absence of the other were not admissible against the- absent one. Pat ton v. State, 6 Ohio St., 467, paragraph two of the syllabus; Fonts v. State, 7 Ohio St., 471; Preston v. Bowers, 13 Ohio St., 1, 13, 82 Am. Dec., 430; Clawson v. State, 14 Ohio St., 234; Tatu v. State, 43 Ohio App., 68, 182 N. E., 681.

One of the most seriously urged assignments of error is “misconduct of the prosecuting attorney and abuse of discretion by the court.”

Many of the complaints in this respect relate to or are connected with the evidence of the Monroe, Michigan, case. While the arguments over the admissibility of this was at times strenuous, as indicated above, the state was within its rights in offering it, and the court did not err in admitting it.

All through the trial many objections were made to the leading-character of the state’s questions and to side remarks made in the presence of the jury by the prosecuting attorney about the evidence or the witnesses. In both of these respects the prosecutor was, to say the least, exceedingly careless and more or less persistent. This court has often expressed its disapproval of such trial tactics and pointed out the duty of the trial court to use measures to effect its discontinuance. Machaterre v. Dusha, 30 Ohio App., 242, 164 N. E., 783.

Of the frequent occurrences of these things and of the manner in which the court handled them, a fair illustration is the following quoted from the record of the cross-examination by the prosecutor of defendant Mercer when a card bearing his pencil record of the Denesik case was under consideration:.

“Q. I notice this is in pencil, this record that you have? A. I got ten thousand like it in pencil.
“Q. And you make all those in pencil? A. Practically.
“Q. Well, you are the first doctor I knew that — to make it in pencil.
“Mr. Winchester. To that we object and aslc to strike it.
‘ ‘ The Court: It may go out.
“Mr. Winchester: I think this gentleman ongAt to be told, if the court please, the remarks he made should not be made.
“The Court: I will tell you, I will tell you to make your objection and then stop. You object, I sustain your objection, and instruct the jury to disregard the remark of the attorney. Now that should be sufficient.
“Mr. Winchester: No, it isn’t quite, if the court please, I—
‘ ‘ The Court: All right — .
“Mr. Winchester: Sir?
“The Court: I haven’t concluded. It isn’t necessary for you attorneys to comment upon any ruling of the court after the ruling.
“Mr. Winchester: I wasn’t commenting upon the ruling, if the court please. I was just suggesting that the court might—
“The Court: Now, if you are making further suggestions, it will require the court, then, to instruct the jury to disregard your suggestions.
“Mr. Winchester: All right.
“The Court: So you don’t say anything—
“Mr. Young: I move for a mistrial, Your Honor.
“The Court: Upon what ground?
“Mr. Young: Upon the ground that the prosecutor has continually made these improper remarks.
“The Court: Well, the court has continually told the jury to disregard the remarks made by the attorneys, whether they are deemed improper by the court. Again I tell you to disregard the remarks made by counsel one to the other or to the court, or the court back to counsel. Your duty, as I have told you before, is to listen to the witness, the words which come from the mouth of the witnesses is the evidence in the case.
“Mr. Young: Will the court please rule on my motion?
“The Court: You may proceed.
“Mr. Young: Will the court please rule on my motion?
“The Court: Overruled — Exception.”

A more specific and serious instance of such error occurred when the state called as a witness Sergeant Margaret M. Slater, Head of the Women’s Bureau of the Toledo Police Department, ánd inquired about her contacts with Hollos on two occasions, both of which were in 1937. On one of these she said she called upon him as a “supposed patient” with a state medical inspector to arrange for massage and chiropractic treatments. It was apparent that this was some effort by the State Medical Board to entrap PIollos for unlicensed practice. The court ordered the testimony stricken, apparently because it was all so indefinite, remote and irrelevant.

The other contact was on August 3, 1937, when she took her stenographer with her to see Hollos in connection with a police investigation of “a note found on a girl’s body that had died in the County Plospital with Mr. Hollos’ name on it.” With the impression that this was something and that the stenographer would be called to testify, this witness was excused by the state. A motion to strike this testimony was overruled. The stenographer was not called and no effort was made to present any further evidence on this subject.

The net result of the vague testimony of the witness Slater could very well have been an impression in the minds of the jurors that as long ago as 1937 Hollos was, (1) engaged in unlicensed or illegal medical practice; and, (2) under suspicion in connection with the death of a girl at County Hospital, where Lucille Denesik had died.

No justification is apparent for the prosecuting attorney presenting such an unfair and prejudicial situation as thus resulted. There are times when a witness may not testify as counsel may expect, or prove not to have admissible information, but there could be no excuse for the office of the prosecuting attorney not knowing what Sergeant Slater, an officer of the state, knew about Hollos, and the court should have excluded the incident of the death note. Even the court’s admonition to the jury, had it been given in such a situation, could hardly have erased the poison that.may have been left by her testimony about these two incidents.

Various other assignments of error are urged, including the sufficiency of the evidence, but none-of these appears prejudicial.

For the reasons stated the judgment is reversed and the cause is remanded to the Court of Common Pleas for a new trial.

Judgment reversed and cause remanded.

Lloyd and Stuart, JJ., concur.


author: Miller, J.

text:
    Crabbe, Admr., Appellee, v. Lingo et al., Appellees; White, Appellant.

      (No. 154
    Decided June 1, 1945.)

      Mr. H. II. Crabbe, for appellee H. H. Crabbe, ancillary administrator.

      Mr. Franlc J. Murray, for appellee George E. Lingo.

      Messrs. Tanner & Tanner, for appellant.
   Miller, J.

This is an appeal on questions of law and fact from a judgment of the Probate Court of Madison county, Ohio, ordering the sale of decedent’s real estate situated in such county.

The facts presented in evidence in the Probate Court are set forth in the agreed statement which by stipulation has been made part of the record. The only exception is that the relief granted on the admitted facts is contrary to law.

Briefly stated, the facts are as follows:

Mrs. Lucy L. Lingo died testate iii December, 3943, in the county of Los Angeles, California, and her will was probated in the Superior Court of that county. She being- seized of property in Ohio, an authenticated copy of her will was filed in the Probate Court of Madison county, which will is set forth in the agreed statement of facts. George E. Lingo, surviving spouse, was appointed domiciliary executor of her estate and H. H. Crabbe was appointed the ancillary administrator, both of whom are acting in their respective capacities.

Decedent in her will devised and bequeathed, among other things, real estate in Glendale, California, the sum of $500 to Marie M. Taylor, a niece by marriage, and to her husband, George E. Lingo, a life estate in the remainder with power of sale and recourse to principal for his care. Upon the death of the husband the remaining estate was to be sold and the net proceeds thereof paid to several persons, among them being the appellant, Bert E. White, who was devised the sum of $400 and “a sum equal to one-half of the net sale price of my farm in Ohio.” The certificate of assets and liabilities of decedent’s estate, filed by the ancillary administrator* shows the appraised value of her Ohio estate to be $18,880 in real estate and no personal property. Her California property was appraised at $21,549.80 and is composed of personal property of $3,049.80 and of real estate in the value of $18,500. The liabilities scheduled by the ancillary administrator show the Ohio indebtedness to be in the sum of $1,334.82, and the California indebtedness, including a mortgage on same real estate in California and a bequest to Mary M. Taylor of $500, to be in the sum of $10,036.49. The total liabilities amount to $11,371.31. The ancillary administrator filed a petition in the Probate Court of Madison county, Ohio, to sell 238.59 acres of land in Deercreek and Jefferson townships, Madison county, Ohio, to pay the indebtedness of the decedent. The surviving spouse, George E. Lingo, in the Probate Court of Madison county, Ohio, elected not to take the provisions made for him in the will, but to take under the laws of descent and distribution. The appellant elected to take the real estate described in the petition at its appraised value upon the condition that he be given credit for one-half of the value of the sale price thereof.

Iii seeking a reversal the appellant argues:

(1) That the Ohio real estate cannot be ordered sold in these proceedings because the debts of the estate are largely California debts and Ohio real estate should only be sold to pay debts due to Ohio creditors.

(2) That the election of the surviving spouse to take under the law instead of under the will accelerates the legacy of the appellant but not the other legacies.

(3) That the real estate should have been ordered transferred to the appellant because he elected to take the whole farm and offered to pay therefor one-half of the appraised value in cash and give a receipt for his legacy in payment of the other one-half of the appraised value.

(4) That he should be found to be the owner of one-half of the real estate in Madison county.

Considering first the status of the estate with respect to the relationship of debts to personal estate, we find the personal estate to be $3,049.80 and the debts to be $11,371.31. From this financial set up it was apparent to the executor in California that real estate had to be sold. Thereupon he caused an authenticated copy of the will to be recorded in Madison county, Ohio, procured the appointment of an ancillary administrator in that county, had all the California claims presented to such ancillary administrator, and, when the present proceedings were instituted, entered his appearance, filed an answer showing' the personal property to be insufficient to pay the debts and prayed the court to order the sale, of the Ohio property to pay such debts. The purpose of the ancillary administration is to clear the title to property and, of course, to protect and pay Ohio creditors and, if necessary, to create a fund to pay the debts and legacies of the deceased.

Section 10511-16, General Code, provides:

“A domiciliary executor or administrator may file in the court by which the ancillary administrator was appointed information showing that it will be necessary to sell Ohio real estate of the decedent' to pay debts and legacies, and the court may thereupon authorize the ancillary administrator to sell such part or all of such real estate as may be necessary. The ancillary administrator shall proceed to sell such real estate in the manner provided by law.”

It is, therefore, our conclusion that under the provisions of that section the court was authorized to sell the land in Madison county.

The next question arises as to the effect upon the remaindermen of the election of George E. Lingo, the surviving spouse, not to take under the provisions made for him in the will, but to take under the laws of descent and distribution of Ohio. The effect of this election upon the estate is the same as though the life tenant had died the day he made the election. Davidson v. Miners & Mechanics Savings & Trust Co., Exr., 129 Ohio St., 418, 195 N. E., 845, 98 A. L. R., 1318. This, therefore, accelerated the legacies of all the remaindermen. The appellant claims the effect would be the acceleration of his legacy only, but with this view we cannot agree. Item II of the will reads as follows:

“Upon the death of my husband I direct that all my remaining estate be sold and that the net proceeds therefrom be paid to the persons and in the proportions, as follows, to wit.”

Then follows a list of fourteen names after each of which is placed in figures an amount of money varying from $150 to $1,500. Among those included in the list is the name of the appellant, which appears as follows:

“Bert E. White, nephew, $400 and a .sum equal to one-half of the net sale price of my farm in Ohio.”

This bequest to Bert E. White does not giye him a one-half interest in the farm in Ohio, but it gives him only $400 plus one-half of the net sale price of the farm. This bequest is similar to the thirteen others named, except that the amount of the bequest is not determined. Since all the legacies have been accelerated, how are they to be paid unless that is done which the Probate Court has done, namely, order the farm sold so that the debts and legacies might be paid as far as possible. The legacies and debts in Ohio and California total the approximate sum of $25,000, and the personal property which could be applied on this amounted to only $3,049.80, which shows the absolute necessity of selling the real estate in order that these debts and legacies might be satisfied. The appellant claims that the land in Ohio should be transferred to him because he has elected to take at the appraisement and offers to pay one-half in cash and to pay for the other half by giving a receipt for his legacy. It is true that the case of Holt v. Lamb, 17 Ohio St., 374, holds that where land is directed to be sold and the proceeds divided, the beneficiaries may elect to take the land, but it does not hold that any one of fourteen such beneficiaries has such right individually, especially where gross inequities would result therefrom. An examination of the assets and liabilities of this estate shows that the total assets amount to some $40,000, and debts and legacies amount to approximately $25,-000. It will be seen that, after the allowance to the husband of his interest in this estate under the laws of descent and distribution, there may not be a sufficient balance to pay these bequests in full. Should such be tbe case, then it would become necessary that each one of these fourteen beneficiaries receive their proportionate share. That the appellant be allowed to take his bequest in full and thereby deny the other beneficiaries their full amount was not the intent of the will.

It is our conclusion that the ruling of the Probate Court in ordering the Ohio farm sold was correct and proper under the agreed statement of facts, and the judgment will be the same in this court.

Judgment accordingly.

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


author: Montgomery, J.

text:
    The Greene County Law Library Assn., Appellee, v. Curlett, Aud., et al., Appellants.
    (No. 489
    Decided October 25, 1945.)

      Mr. Marcus Shoup and Mr. Robert H. Wead, for appellee.

      Mr. Morris D. Rice, for appellants.
   Montgomery, J.

The action in the Court of Common Pleas was one for a declaratory judgment construing Sections 3056, 3056-3, 3055, 5625-21 and 1181-5 (now 1183-4), General Code. To the trial court there were propounded in the petition 13 questions based upon those several statutes, which questions the court was asked to answer and which it did answer.'

The notice of appeal to this court recites that it is on questions of law and fact. Obviously, such an appeal will not lie. The action is one for the construction of certain statutes, not an equitable matter, and the Uniform Declaratory Judgments Act is remedial and does not establish or change substantive rights. See Kochs, Admx., v. Kochs, 49 Ohio App., 327, 197 N. E., 255.

The cause is retained as an appeal on questions of law. •

And since no error is predicated upon the construction given to these statutes by the trial court or upon any of his several answers to the questions, it is assumed that counsel are satisfied with the same and it becomes unnecessary for us to discuss them.

Three propositions are presented in the briefs submitted :

(1) The right of the Greene County Library Association to maintain this action.

(2) That there is a defect of parties defendant.

(3) The constitutionality of these involved sections.

Of these propositions in their order:

(1) There is not in the record any evidence of any incorporation of the plaintiff, or of any formal organization of any kind or description, and of course it is the general rule that “an unincorporated association cannot sue or be sued in its own name.” 3 Ohio Jurisprudence, 758, Section 8.

However, this organization has been in existence for more than 40 years, recognized as such, with orders made from time to time by the Court of Common Pleas of Greene county in pursuance of the authority vested in it by the statutes of Ohio.

There is a chapter of the General Code entitled “Law Libraries,” and this covers Sections 3054 to 3058, inclusive. There is a recognition of such associations, without any definite or specific provision or requirement as to how they shall be organized.

It seems to us that the proposition is answered by the pronouncement in 4 American Jurisprudence, 487, Section 47, wherein it is stated:

“Aii express statutory provision is not indispensable to an association’s capacity to sue or be sued in’its association name; such a suit may be maintained by virtue of a necessary implication arising from statutory provisions, as in cases where an unincorporated association is recognized as a legal entity by statutes which do not in terms authorize it to sue or be sued as such. Thus, an unincorporated association authorized by statute to contract in its own name for.certain purposes, has a legal capacity to be sued on such contracts in its association name.”

We hold, therefore, that the plaintiff liad capacity to maintain this action. ■

(2) The defendants named in the petition were the auditor of Greene county, Ohio, the clerk of the Municipal Court of Xenia, Ohio, and the. mayors of the eight named villages of Greene county. It is contended by the appealing mayors that their several municipalities and the officials thereof, the city of Xenia, and Greene county, as such, were necessary parties defendant, on the theory that these political subdivisions are of themselves directly affected by and concerned with the application of these funds to law library associations.

With this contention we cannot agree. These funds never were the funds of the political subdivisions. They come from fines and penalties obtained in pursuance of statutory laws of Ohio which laws direct their application. The clerk of the Municipal Court of Xenia, Ohio, and the mayors of the several villages, who are clerks of their own courts, have a duty imposed upon them to make collection of these fines and penalties and to disburse them as required by statute. In this respect they are collecting and disbursing agents for particular funds, having no connection with the assets of their several political subdivisions.

(3) The trial court in upholding the constitutionality of these questioned sections relied upon the case of the State, ex rel. Pugh, v. Sayre, Auditor, 90 Ohio St., 215, 107 N. E., 512.

And as stated in our discussion of the second defense, supra, these funds never were the property of the political subdivisions, and hence the enforcement of these statutes would not result in the use of the credit of municipalities for some purpose other than municipal purposes.

The judgment may be affirmed.

Judgment affirmed.

Hornbeck, P. J., and Miller, J., concur.

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


author: Hornbeck, P. J. By the Court.

text:
    United Aircraft Products, Inc., Appellee, v. Cruzan, Appellant.
    (No. 1824
    Decided March 26, 1945.)

      Mr. Joseph D. Chamberlain and Messrs. E. H. & W. B. Turner, for appellee.

      Mr. Gus W. Byttner and Mr. Henry G. Dybvig, for appellant.
   Hornbeck, P. J.

This appeal, although originally noted as an appeal on questions of law and fact, proceeds as an appeal on questions of law because of the failure of defendant to file an appeal bond. The appeal in this court has at all times been considered as on questions of law and we have a bill of exceptions and briefs wherein.are set forth and discussed assignments of error. The appeal is directed to a decree of the trial court permanently enjoining- defendant and requiring specific performance of a contract, all as prayed in plaintiff’s petition. The decree operates upon the ownership of four inventions or iüaprovements’ of which defendant is the inventor or co-inventor. It is’ agreed that the effect of the decree is to order the defendant to assign to the plaintiff all his right, title and interest in and to the applications for United States letters patent for an automatic oil conditioner, an oil control valve, an elliptical type oil cooler and a direct action shutter control with surge pressure protector. Further, defendant was permanently enjoined-from disclosing any secret or confidential information concerning plaintiff’s products, etc., disclosed to or gained by him during the period of his employment by plaintiff.

Seven errors are assigned which may be encompassed in two, i. e., the decree is manifestly against the weight of the evidence and is contrary to law.

The petition was predicated, primarily, upon an alleged breach"of a written contract known as a “put on contract” between the parties and, secondarily, upon an implied contract growing out of the confidential relationship of employer and employee. The right to the injunction was grounded upon the fact that defendant, who had left the employ of plaintiff to accept • a managerial position with another company in like enterprise to that of plaintiff, might divulge information secured by him by reason of his access to the experimental equipment, secret information and ideas growing out of the character of the work carried on by the plaintiff, namely, the manufacture of aircraft accessories, and engineering to develop and test such parts.

The issue drawn by the answer of the defendant was raised by a general denial and by the averment that there had been no meeting of the minds of the parties to the terms of the contract. The defenses which have been argued are varied. One was based upon the claim that there was an executed verbal contract by the terms of which an arrangement as to division of profits from the inventions was set up between the parties and that, therefore, the subsequent written contract would not operate upon the ownership of the four devices under consideration. In conjunction with this claim it is urged that these devices were conceived by defendant jointly or as co-inventor during his own time, with his own material, in his own home and entirely independent of his employer, the plaintiff; and that the written, contract does not include the devices under consideration because of the fact that the patentable ideas were conceived prior to its execution. It is further urged that a permanent injunction should not be granted because of failure of proof of any purpose on the part of the defendant to do those things which he is sought to be enjoined from doing, and, finally, that because of the refusal of the plaintiff to carry out the terms of the oral contract, as testified* by the defendant, the equitable arm of the court should not be made available to the plaintiff.

Tlie trial judge not only entered a general decree in favor of the plaintiff but also made special findings of fact and handed down a written opinion.

We may not disturb the findings , of fact because there is support in the record for all of them. Nor is there anything in this record which would require the court to apply any other than the customary rule to the evidence because there is presented upon the main factual dispute contrariety of testimony. In this situation the trial court had full right to accept the evidence of the plaintiff as against that offered by the defendant.

The central and determinative factor in this case is the written contract. That it was a subsisting, valid and binding agreement upon the parties is manifestly true and the trial judge so found. It is not claimed that there was any duress or fraud in inducing its execution. There is no prayer for its reformation. It is developed by the evidence that the contract was prepared, and required to be signed by the employees of the plaintiff company, in part, to bring about the very -result which is sought to be accomplished in this action.

The defendant entered the employ of the plaintiff in 1939. His former employment was with The National Cash Register Company and was entirely unconnected with aircraft parts development. There is some dispute as to the exact nature of his employment with plaintiff but, whatever it was, it is obvious that it was confidential and that he had the opportunity to, and did, in his employment absorb information which grew out of his contacts with the products of plaintiff company, its developments and the experimental work that it was carrying on in aircraft procedure. This likewise was true to a greater or lesser extent with all of the employees. If out of this relationship the defendant conceived inventions which were patentable, whether he did the work incident to bringing them to a patentable'stage in the plant of the plaintiff or elsewhere, the law of implied contract would determine the respective rights of the parties to any invention so patented. But the plaintiff had the further right, of which it availed itself, to put in specific language the obligation of its confidential employees as to patentable ideas which were conceived during the time they were in its employ. The parties having reduced their agreement to writing, it alone fixed their respective rights.

The contract under consideration was prepared in the summer of 1941 and was distributed among the employees who were requested to sign it. Two of the devices under consideration had been, under the testimony, completed on May 15, 1941, prior to the date -of the contract, and defendant upon its receipt, in connection with another experiment which he was required to carry on and which he thought might involve the ideas carried into his inventions, became concerned as to his rights under these inventions. This resulted in a conference with the snanagement of plaintiff granted upon defendant’s request. As to what occurred at this meeting there is a divergence of testimony. It is plaintiff’s claim, and its witnesses testify, that the defendant was told uneqivocally that he would be required to sign over to the company all patents or patentable devices the ideas of which he had conceived at any time during his employment with the company and that if he did not do so he could no longer maintain his employment with the company, and that, as to the devices under discussion, he would be required to assign his rights to the plaintiff. Defendant states that he was told he would receive a proper share of the benefits of the idea accruing to the company.

The net effect of the acts of the parties after the defendant received the written contract from his employer is that he was put on notice that if he signed it he would be yielding up all his rights to the devices under consideration. After the conference with the management of the plaintiff, defendant did sign the contract. By its terms, he was hound to transfer to the company all his rights in and to the devices under consideration.

The pertinent and determinative language of the contract is found in paragraph No. 6, as follows:

“ (a) The party of the first part further agrees that any and all inventions, discoveries or improvements in any way relating to aircraft parts and accessories, or other items of manufacture, manufactured and/or sold by said company during the term of said employment * * *
“(d) which inventions or discoveries or improvements
“ (e) are noio Imown to the party of the first part, or discovered or made by the party of the first part, either in whole or in part, during the term of said employment
“(f) shall immediately become the absolute property of the company * * (Emphasis ours.)

By the expression “now known to the party of the first part” and the language “during the term of said employment” it becomes evident, even to a layman, that it was meant that if the contract was-observed the devices under consideration became the absolute property of the company. The latter-quoted language, under all the circumstances and upon consideration of the whole of the written instrument, certainly means the period of employment. These inventions then were conceived during the period of defendant’s employment with the plaintiff and clearly the contract must be given effect to determine their ownership.

The trial judge finding that the “put on contract” was subsisting, valid and controlling of the rights of the parties as to the inventions under consideration, it becomes unnecessary to consider the application' of the parol evidence rule as it affects .the oral agreement asserted by the defendant, or the doctrine that as the written contract covers the entire agreement between the parties the parol agreement is merged in the written contract. Inasmuch as the written contract clearly controls the rights of the parties, it is not necessary or advisable to discuss what their obligations may have been had they been relegated to their respective rights under their employment agreement.

The claim of the defendant that- there was an executed oral contract may not be supported because, obviously, if all that is claimed by the defendant is true, it was nothing more than an executory contract.

We have not cited or specifically discussed the many cases set out in the helpful and complete briefs of counsel because the controlling legal principles are so well known, and in deciding this appeal we have hot resorted to the more technical phases of the law as discussed in the briefs.

There is ample support for the decree of the trial judge and no error assigned is well made. We are in accord with the written opinion of Judge Cecil and could well base our judgment upon it. The decree is affirmed.

Decree affirmed.

Geiger and Nichols, JJ., concur.

(Decided April 30, 1945.)

On Application for rehearing.

By the Court.

The cause is submitted on application for rehearing.

No reason is set forth sufficient to require a rehearing on this appeal. In our original opinion although we confined our discussion to the principal and determinative question before us, we also said that “no error assigned is well made.” The journal entry may be prepared to conform to our finding that no error assigned is established.

Application denied.

IIornbeck, P. J., G-eiger and Nichols, JJ., concur.

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


text:
    The State, ex rel. Bailey, v. Henderson, Warden.
    (No. 3837
    Decided October 22, 1945.)

      Mr. Richard G. Deeg, for petitioner.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. Henry 8. Zwolinski, for respondents.
   Montgomery, J.

According to the evidence introduced on oral hearing in this court, the petitioner, Baxter W. Bailey, on or about April 22, 1944, tendered to a certain business firm in tbe city of Alliance, Ohio, a cheek which is in the following language:

“Alliance First National Bank Alliance, Ohio 4-22-44
“Pay to the order of Klein and Rodfrick $38.11
“Thirty-eight and 11/100 dollars
“No.-- Baxter W. Bailey.”

According to his testimony he had signed his own name to this check. The employees of the store, becoming suspicious, delayed cashing it, caused an investigation to be made, and it was found that Bailey had no checking account in the Alliance First National Bank. He may have been guilty of an offense under the provisions of Section 710-176, General Code, i. e., drawing or delivering a check upon a bank, with insufficient funds or credit in such bank.

However, the grand jury of Stark county indicted him on two counts, one for forging this check and the other for uttering and publishing as genuine a forged check. Some of his relatives employed-counsel, and this counsel advised him to plead guilty, which he did. This plea was accepted and he was thereupon sentenced to the Ohio penitentiary for a period of from one to twenty years under the provisions of Section 13083, General Code. This doubtless was through inadvertence of the trial court whose attention presumably was not directed to the facts.

This proceeding, an action originating in this court, is one in habeas corpus, directed toward the warden of the Ohio penitentiary.

Section 13083, General Code, which purports to define forgery, does not give a definition of any value for our present purposes. It seems to assume too much. Webster’s dictionary defines forgery as “the crime of fraudulently making or altering a writing or signature purporting to be made by another.” This definition obviously is correct. A man does not commit forgery by using his own name. The signature must purport to have been made by another.

The state of Ohio in theory at least is jealous of the rights of its citizens. Without impropriety, we think we may direct attention to another Stark county case, State v. Cocco, 73 Ohio App., 182, 55 N. E. (2d), 430, the first and fifth paragraphs of the syllabus of which are:

“1. A person indicted for murder in the first degree is entitled to be represented by efficient counsel.”
“5. When the state undertakes to deprive an individual of life or liberty it must conform to the rules of procedure which it has itself established.”

In this situation, what is to be done ? The petitioner, if he had been properly advised, could have availed himself of the facts at the time of the hearing. Ordinarily a writ of habeas corpus should not issue where the petitioner has had an opportunity of presenting his contention in the regular course of procedure. See Section 12165, General Code, and the case of In re Poage, 87 Ohio St., 72, 100 N. E., 125. The second paragraph of the syllabus of that case, however, which sets forth the law denying the right to a writ of habeas corpus when the court issuing the capias has jurisdiction of the offense, is based upon the proposition that the indictment charged the petitioner with an offense against the laws of this state. Although the petitioner in the instant case may have been guilty of an offense under the laws of this state, the indictment did not charge such. It charged a thing not a crime.

We direct attention to the annotations in 57 A. L. R., 96, 97.

Upon this indictment, the petitioner is unlawfully restrained of his liberty and is entitled, under Section 12161, General Code, to apply for a writ of habeas corpus.

We direct attention also to In re Remus, 119 Ohio St., 166, 162 N. E., 740, wherein such a writ was ordered allowed in view of the fact that the petitioner had no other remedy. And in the recent case of In re Clendenning, 145 Ohio St., 82, 60 N. E. (2d), 676, the Remus case was followed, although distinguished.

It is ordered that the petitioner be discharged.

Petitioner discharged.

Hobnbeck, P. J., and Miller, J., concur.

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