author: Conn, J. Fess, J., Deeds, J.,

text:
    Swankowski, Appellant, v. Diethelm, Appellee.
    (No. 4747
    Decided December 7, 1953.)

      Mr. William D. Driscoll and Mr. Dave Topper, for appellant.

      Messrs. Marshall, Melhorn, Bloch é Belt, for appellee.
   Conn, J.

The trial court sustained the demurrer of defendant to plaintiff’s petition and, plaintiff not desiring to plead further, her petition was dismissed and judgment of dismissal and for costs was entered.

The material allegations in plaintiff’s petition disclose that an earlier action had been filed in the Court of Common Pleas by plaintiff against defendant and that the demurrer of defendant to her petition in that action was sustained and said action dismissed September 9, 1952.

It appears further that within one year from the date of dismissal of the earlier action, plaintiff filed her petition herein and for a cause of action alleged that on March 1, 1943, defendant performed a surgical operation on plaintiff for which professional services he was paid a stipulated amount; that defendant carelessly and negligently permitted a surgical needle, which he had employed in the performance of such operation, to remain in plaintiff’s abdomen after the incision had been closed; and that subsequently, on November 30, 1950, said needle was removed by another surgeon.

Plaintiff alleges further that defendant “knowingly, intentionally and fraudulently” failed to remove said needle and knowingly permitted it to remain in the abdomen of plaintiff with intent to deceive plaintiff; that plaintiff relied on defendant to employ proper and accepted means known and employed by the medical and surgical profession in performing said operation and was not advised and did not learn of the alleged negligence of defendant until November 18,1950; and that plaintiff sustained damages as the direct result of defendant’s negligence and deceit.

Prom the judgment of the Common Pleas Court sustaining the demurrer of defendant and dismissing plaintiff’s petition, plaintiff appealed on questions of law and assigns as error that the judgment sustaining the demurrer was contrary to law.

It is admitted that a prior action had been begun against defendant for malpractice and that a demur-rer to the petition in that case had been sustained on the ground that the action was barred by the one-year statute of limitations. (Section 2305.11, Revised Code.)

Where a petition is challenged by a general demurrer, as in the instant case, the issue thus raised is the legal sufficiency to state a cause of action against the defendant.

It is contended by plaintiff that the petition sets forth a right of action in deceit and that plaintiff is entitled to recover on the ground of fraud. Under the statute of limitations, an action for fraud may be brought within four years after the cause of action accrued, or the fraud is discovered. (Section 2305.09, Revised Code.)

A right of action in deceit, as in torts generally, is grounded on “a primary legal right in plaintiff, a corresponding primary legal duty on defendant to observe that right, and a breach of that duty by defendant,” by reason of which plaintiff sustained damage.

In contrast with a right of action as above defined, a cause of action has been defined as comprising “every fact necessary to the right of relief prayed for.” (Bouvier’s Law Dictionary.) Or as defined in Tinker v. Sauer, 105 Ohio St., 135, 136 N. E., 854:

“A cause of action is the matter for which an action may be brought, and embraces the facts which it is necessary to establish in order to sustain a claim for judicial relief.”

The form or right of action should not be confused with cause of action. They are not interchangeable. 1 Ohio Jurisprudence, 272, Section 2; McGuire v. Corn, 92 Ohio App., 445, 449, 110 N. E. (2d), 809.

Is the cause of action set up in plaintiff’s petition one in deceit or one in malpractice? A correct answer to this question is necessary to precisely determine the issue before us.

When plaintiff obtained the services of defendant as physician to perform a surgical operation, she had the legal right and was entitled to the exercise of reasonable care, skill and knowledge on the part of defendant as such physician, in the practice of his profession and, coextensive with that right, the defendant owed plaintiff the legal duty to use recognized standards of professional knowledge and skill and also to exercise reasonable care and requisite diligence for the safety and physical well-being of plaintiff, failing in which the defendant was answerable in damages.

Assuming the foregoing is a correct statement of the rights of plaintiff and duties of defendant, would not a violation of duty on the part of defendant, with resulting damages, fall within the definition and meaning of the term “malpractice”? It is our opinion that this question should be answered in the affirmative.

As further bearing on the issue presented, it is pertinent to, keep in mind that a general demurrer tests the substance of a pleading and searches its character substantially more than its form. In other words, a demurrer is not concerned with the form of action pleaded, but rather with the substance of the claim asserted and the relief prayed for. 31 Ohio Jurisprudence, 678, Section 118.

In Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639, the court gave recognition to this principle of procedural law and adjudged the issue presented on this basis — the substance and not the form of the action. In the above case, notwithstanding the relationship between a doctor and his patient was contractual, it was held that where the patient brings an action for alleged breach of contract, arising by reason of negligence in its performance, such action is not one on the contract but one for malpractice.

See, also, Andrianos v. Community Traction Co., 155 Ohio St., 47, 97 N. E. (2d), 549, whore it was held:

“1. A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.”

In the above action, Andrianos was a fare-paying passenger of defendant and sustained personal injuries by reason of the manner in which the bus was operated. For such breach of contract for safe passage, an action was brought to recover damages more than two years after the plaintiff received his injuries. The trial court sustained the demurrer of defendant on the ground that the two-year limitation was applicable.. This court reached the conclusion that the six-year limitation applied. The Supreme Court affirmed the judgment of the Common Pleas Court.

In the opinion of a majority of the court, the petition of plaintiff, when taken by the four corners, sets up a cause of action in malpractice, and the allegations of fraudulent misrepresentation and of intentional concealment of the fact that the needle had been intentionally left in the abdomen of plaintiff do not transmute or change the cause of action from one in malpractice to one in deceit.

The judgment is affirmed and the cause remanded for execution for costs.

Judgment affirmed.

Fess, J., concurs.

Deeds, J., dissents.

Fess, J.,

concurring. The period of limitation within which an action must be commenced is to be determined from the nature of the demand and the ground of action as set forth in the pleadings. State, ex rel. Lien, Supt., v. House, 144 Ohio St., 238, 58 N. E. (2d), 675. The limitation is imposed on the cause of action, and the form in which it is brought is immaterial. Andrianos v. Community Traction Co., 155 Ohio St., 47, 97 N. E. (2d), 549. The majority rule applies this principle to actions for malpractice. 74 A. L. R., 1256; 151 A. L. R., 1028; Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639. Thus, in determining this appeal, we look to the substance rather than to the form of the action.

A fraudulent concealment by which a plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations, nor may the bar of the statute be avoided ordinarily by pleading fraudulent concealment. Fee’s Admr. v. Fee, 10 Ohio, 469; Marblehead Bank Co. v. Raridon, 4 Ohio App., 468; Howk v. Minnick, 19 Ohio St., 462, 2 Am. Rep., 413; Minster Loan & Savings Co. v. Laufersweiler, 67 Ohio App., 375, 36 N. E. (2d), 895; Tulloch v. Haselo, 218 App. Div., 313, 218 N. Y. Supp., 139.

The alleged failure of the defendant to disclose to plaintiff his negligent conduct in itself involved a breach of duly constituting malpractice. Plaintiff’s cause of action is therefore barred by Section 11225, General Code.

Deeds, J.,

dissenting. T do not concur in the judgment of the majority of the court in this case.

The judgment in the Court of Common Pleas was entered on the ruling of that court on a general demurrer to the petition of the plaintiff, consequently the question to be determined is whether the petition contained sufficient well-pleaded facts to constitute a cause of action.

The action was commenced July 11, 1953, pursuant to Section 11224, General Code (now Section 2305.09, Revised Code), which is as follows:

“An action for either of the following cases, shall be brought within four years after the cause thereof accrued:
‘ ‘ 1. For trespassing upon real property;
“2. For the recovery of personal property, or for taking or detaining it;
“3. For relief on the ground of fraud;
“4. For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated.
“If the action be for trespassing underground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it be for fraud, until the fraud is discovered.”

It is important to keep in mind that the action is based on fraud and deceit and arose not at the time of the alleged negligent performance of the surgical operation by the defendant, but on the date of the discovery of the fraud and concealment as provided in the foregoing statute that the right of action shall not accrue “if it be for fraud, until the fraud is discovered” and “shall be brought within four years after the cause thereof accrued.”

The pertinent allegations of the petition, in substance, are that the defendant is a physician and surgeon and that prior to March 21, 1943, plaintiff as a patient was treated by the defendant in reference to an internal disorder; that plaintiff’s condition was diagnosed by the defendant as tumor of the bladder, requiring a surgical operation; that on March 21, 1943, while plaintiff was under an anaesthetic, the defendant performed an operation for the purpose of removing the tumor; that defendant knowingly left a surgical needle in plaintiff’s abdomen and with knowledge of the presence of the needle in plaintiff’s abdomen closed the incision by sewing, without informing plaintiff of the presence of the needle in her abdomen; and that “thereafter, while plaintiff still continued under defendant’s care, and while the relationship of doctor and patient continued, defendant beguiled plaintiff to believe that the doctor-patient relationship between plaintiff and defendant would continue indefinitely with respect to the aforesaid surgery in that defendant advised plaintiff to return to him if at any time she felt any ill effects resulting from the surgery, although defendant knew that plaintiff would so suffer and that he had not removed his surgical needle which he had sewn in her abdomen within the field of operation prior to the closing of said incision.”

Plaintiff alleged further that she did not learn of the presence of the needle in her abdomen until November 18, 1950; that after learning of the presence of the needle in her abdomen she requested the defendant to treat her concerning same but the defendant refused and neglected to render plaintiff any further service; and that thereafter plaintiff underwent another surgical operation performed by another surgeon on November 30, 1950, for the purpose of removing the surgical needle.

There are many other statements and allegations contained in the petition relating to knowledge on the part of the defendant, deceit and fraud on account of his relationship as physician to the plaintiff, and allegations in reference to damage, unnecessary to be stated here.

The gist of the action is fraud and deceit on the part of the defendant, thereby depriving plaintiff of her alleged right of action for malpractice. The rules of law controlling a decision on demurrer to the petition have been stated clearly in decisions by the Supreme Court of the state: State v. Ford Motor Co., 114 Ohio St., 221, 151 N. E., 171; Humphries v. Wheel ing Steel Corp., 132 Ohio St., 263, 7 N. E. (2d), 230; Gugle v. Loeser, 143 Ohio St., 362, 55 N. E. (2d), 580.

So far as 1 have been able to determine, there has been no decision by an appellate court or our Supreme Court involving an analogous state of facts, or where the principal question involved the charge of fraud and deceit practiced by a physician upon a patient for the purpose of taking advantage of the statute, limiting the time within which actions for malpractice may be commenced.

The demurrer to the petition presented the question as to whether the petition contained facts sufficient to charge fraud or deceit on the part of the defendant.

If the answer to that question should be in the affirmative, then it follows under the established rules of law applicable that the demurrer should have been overruled.

It is undisputed that plaintiff did not learn of the presence of the needle in her abdomen until November 18, 1950; that defendant knew that he had carelessly lost a needle in plaintiff’s abdomen; that defendant knowingly left the needle in her abdomen; that following the operation the defendant advised plaintiff to return to him if she experienced any difficulty resulting from the operation; that she did return to defendant after discovering the presence of the needle; and that defendant refused to treat plaintiff at that time.

In my view of the record before us, the cases of Gillette v. Tucker, 67 Ohio St., 106, 65 N. E. 865, 93 Am. St. Rep., 639; McArthur v. Bowers, 72 Ohio St., 656, 76 N. E., 1128; Bowers v. Santee, 99 Ohio St., 361. 124 N. E., 238; Amstuts v. King, 103 Ohio St., 674, 135 N. E., 973, and the recent case decided by the Supreme Court of this state, DeLong v. Campbell, Exrx., 157 Ohio St., 22, 104 N. E. (2d), 177, are not controlling in a decision in the case before us for the reason that in none of those cases was relief sought on the ground of fraud.

The same may be said concerning the principal case relied upon by counsel for the defendant and the cases cited in the opinion in that case, being: Pickett v. Aglinsky, 110 F. (2d), 628.

The rule respecting the time at which the statute of limitation for malpractice commences to run has been determined by the Supreme Court in Bowers v. Santee, supra, approving and following the case of Gillette v. Tucker, supra, in that regard. Paragraph two of the syllabus is as follows:

“In an action for a breach of the contract in such case, the statute of limitations does not begin to run until the contract relation is terminated. (Gillette v. Tucker, 67 Ohio St., 106, approved and followed. McArthur v. Bowers, 72 Ohio St., 656, disapproved.)”

Unquestionably there are allegations in the petition in this case to the effect that the relationship of physician and patient was not terminated until the plaintiff discovered the presence of the needle in her abdomen on November 18, 1950, and that the defendant refused thereafter to treat the plaintiff.

The question whether concealment or misrepresentation amounting to fraud could be proved by the plaintiff is not necessary to be determined here. However, in considering whether the petition is sufficient in that regard, the duty of the defendant as a physician under the circumstances as shown by the allegations in the petition should be taken into consideration.

In 19 Ohio Jurisprudence, 345, Section 35, the duty of one in a fiduciary relation is defined:

“Where confidential relations exist in general. Where parties dealing directly stand toward each other in a fiduciary or quasi-fiduciary relation, the obligation not only to abstain from false suggestions, but to make full disclosure, is imperative. One standing in a confidential relation who conceals or fails to make a full disclosure of facts within his knowledge, knowing the other party to be ignorant of those facts, is guilty of fraud, both in law and equity. The relationship of confidence and trust, wheteunder it becomes the duty of one party not to conceal fraudulently or misrepresent the true facts of the situation is not confined to those well-known relations of trustee and beneficiary, guardian and ward, and attorney and client. It applies to every case where influence is acquired and abused and where confidence is reposed and betrayed. The duty rests upon parties in the relationship of trustee and cestui que trust, guardian and ward, attorney and client, and such like because the court presumes confidence put and influence exerted. In all other cases where these relations do not exist, the confidence and influence must be extrinsically proved; but once so proved, the rules of reason and common sense and the rules of equity are just as applicable in one case as in the other.”

Concerning the question of concealment generally, as supplying the place of an actual false statement, it is stated in 19 Ohio Jurisprudence, 339, Section 29, as follows:

“Concealment in general. Concealment or suppression of the truth may supply the place of an actual false statement and be the equivalent of a false representation. It seems obvious enough that the nondisclosure of a material fact with the object of inducing one to act in a way different from the way he would have acted had he known the truth is a representation that that which is actually true does not exist. And it has been held in Ohio that allowing a party to proceed upon an erroneous belief contributed to by one’s acts is active concealment, equivalent to misrepresentation. A false impression may be produced by the concealment or nondisclosure of facts which there is a duty under the circumstances to disclose.
“Accordingly, inasmuch as fraud may be committed by the suppression of the truth as well as by the suggestion of falsehood, suppression or concealment of a materia] fact is fraud.”

The distinction applicable here, where the plaintiff charges fraud in addition to her lack of knowledge concerning the action of the defendant and the presence of the needle in her abdomen, in reference to the bearing of such fraud upon the running of the statute of limitations, was recognized by the Supreme Court in State, ex rel. Watson, Atty. Genl., v. Standard Oil Co., 49 Ohio St., 137, 30 N. E., 279, 34 Am. St. Rep., 541, 15 L. R. A., 145, where, in the opinion of the court, page 188, it is stated as follows:

“It is further contended that the provision does not apply by reason of the fact, as averred in the petition, ‘ that the plaintiff had no knowledge of the existence of either of the aforesaid agreements, or of the acts hereinbefore recited, until the latter part of the year 1889.’ The general rule is that a party’s want of knowledge does not prevent the running of the statute of limitations against an action that has accrued in his favor; and the only exception is concealment or fraud on the part of the defendant, which is expressly confined by our statute to ‘an action for relief on the ground of fraud.’ Section 4982, Revised Statutes. This is not such an action; and fraud in fact is not averred, it is simply want of knowledge on the part of the plaintiff.”

It seems to me in harmony with the foregoing statement of the Supreme Court to be inconceivable that fraud, if proved as alleged, would not effectually toll the running of the statute of limitations in this case.

Especially must it be true that fraud may be shown as an effective bar to the running of the statute of limitations in malpractice, since no exception appears in the provision contained in Section 2305.09, Revised Code, supra, and that provision relates specifically and exclusively to the time limitation applicable in actions involving fraud, although our Supreme Court has not determined the specific question involved in this case.


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    The State, ex rel. Euverard, v. Miller, Inspector.
    (No. 218
    Decided December 20, 1954.)

      Mr George B. Elliott and Mr. Clinton D. Boyd, Jr., for relator.

      Mr. Marvin E. Young, for respondent.
   Hildebrant, J.

By an original petition in mandamus, containing two causes of action, relator seeks to compel the issuance of a building permit by the Franklin Township Zoning Inspector for the erection of a gasoline and oil service station on the premises of relator, located in Franklin Township, Warren County, Ohio, and consisting of a corner lot at the intersection of U. S. Route 25 and Coles Road in Warren County.

The cause is presented to this court upon the pleadings and an agreed statement of facts, set forth in full herein as follows:

“The parties to this action by their counsel duly authorized, hereby stipulate and agree that the following facts are true; that the following are all the material facts involved in this controversy and that neither party hereto will offer evidence tending to vary the same:

“1. Relator is the owner in fee simple of the real estate described in the petition.

“2. Relator acquired title to such real estate on April 16, 1952, subject to the following provision, .duly recorded in the office of the Warren County Recorder:

“ ‘(1) All or any part of said lots may be used for business or dwelling purposes.’

“3. Said real estate is located at the intersection of U. S. Route 25 and Coles Road, in Franklin Township, Warren County, Ohio. Said intersection lies approximately 3 miles south of the city of Franklin and approximately 1.14 miles east of the city of Middletown.

“4. U. S. Route 25 is a major arterial north-south highway of the United States, heavily traveled by interstate and intrastate commercial and private vehicles. Traffic at the point where relator’s property abuts on U. S. Route 25 is especially heavy, as such point lies, approximately 25 miles south of the metropolitan area of Dayton, Ohio, and approximately 35 miles north of the metropolitan area of Cincinnati, Ohio. U. S. Route No. 25 is one [of] the major commercial highways of the United States.

“5. Coles Road is a heavily traveled road, the same being an extension of the primary east-west thoroughfare of the city of Middletown.

“6. Immediately adjacent to relator’s real estate, and fronting on U. S. Route No. 25, a grocery store is located; directly across U. S. Route No. 25 and facing the property of relator, a gasoline and oil service station which also sells groceries and meats is situated; diagonally across said intersection a restaurant and truck stop is located. All of said commercial establishments are currently in operation.

“7. Relator’s property, being located at a heavily traveled intersection and in the midst of commercial establishments, has little suitability for residence purposes, but is very suitable for business purposes.

“8. The Board of Township Trustees of Franklin Township, Warren County, Ohio, pursuant to the provisions of Chapter 519, Revised Code, adopted a resolution providing for zoning regulations for Franklin Township, Warren County, Ohio, on August 27, 1953; such zoning resolution was approved by the electors residing in the unincorporated areas of said township at the general election held November 3, 1953, and such approval was certified by the Board of Elections of Warren County, Ohio, on November 12, 1953. Said zoning regulations are now in full force and effect and designated as the Franklin Township, Warren County, Ohio, Zoning Code. An accurate copy of said zoning code is attached to the petition herein and marked ‘Exhibit.’

“9. The respondent herein, Marshall Miller, is the Franklin Township Zoning Inspector, having been duly appointed as such by the Board of Township Trustees of Franklin Township pursuant to the said zoning code.

“10. Pursuant to said zoning code, the entire unincorporated area of Franklin Township, with the sole exception of the land abutting on U. S. Route No. 25 north of the city of Franklin for a distance of approximately 2-1/4 miles, was zoned ‘Rural Residence A.’

“11. The reason the entire township, with the lone exception set out in item 10 hereof, was zoned for residence purposes only was that it was the opinion of the Franklin Township Zoning Commission and the Board of Trustees of Franklin Township that good policy indicated strict zoning throughout the township, the zoning plan to be amended to include commercial establishments as each case arose.

“12. Subsequent to the adoption of the said zoning code, relator made application to the Franklin Township Zoning Commission, requesting that, under the provisions of Chapter 519, Revised Code, the zoning plan be amended so that his property could be used for business purposes. On .January 11, 1954, the Franklin Township Zoning Commission granted relator’s application and rezoned his said real estate for business ‘B.’ A public hearing on the proposed rezoning of relator’s property was held on February 22, 1954, and on February 25, 1954, the Board of Township Trustees of Franklin Township unanimously adopted a resolution confirming the action of the Township Zoning Commission and amended the zoning plan so that the property of relator be zoned for business,' B.’

“13. Within 30 days after the adoption of the said amendment by the Board of Township Trustees, a petition was presented to the Board of Township Trustees under the provisions of Section 519.12, Revised Code, signed by voters residing in the unincorporated area of said township equal to not less than eight per cent of the total vote cast in such area for all candidates for governor in the last gubernatorial election, requesting that said amendment be submitted to the electors residing in the unincorporated area of Franklin Township, Warren County, Ohio, for approval or rejection at the next primary or general election.

“14. Pursuant to the provisions of the said Section 519.12, Revised Code, the said amendment to the zoning plan was submitted to the voters residing in the unincorporated areas of Franklin Township at the primary election held May 4, 1954.

“15. The unincorporated area of Franklin Township, Warren County, Ohio, includes approximately 33 square miles.

“16. At the primary election of May 4, 1954, the amendment to the zoning plan, rezoning relator’s property for business uses, was rejected and the action of the Franklin Township Zoning Commission and the Board of Trustees of Franklin Township, was thereby overruled.

“17. On August 17, 1954, relator made written application in accord with the provisions of the said zoning code to the respondent, as Franklin Township Zoning Inspector, for a permit to erect a gasoline and oil service station on lots numbered one (1) and two (2), East Plains Subdivision, Warren County, Ohio. The respondent refused to issue such building permit for the sole reason that relator’s said lots are zoned ‘Rural Residence A’ under the Franklin Township Zoning Code.”

In the comprehensive and helpful brief of relator, the questions presented are stated to be:

“First cause of action:
“Is the Franklin Township Zoning Code, in so far as it restricts relator’s land to residential uses only, an improper exercise of the police power because such restriction bears no reasonable relationship to the public health, safety, morals or general welfare?
“Second cause of action:
“Does that part of Section 519.12, Revised Code, which provides for the submission of amendments to the township zoning plan to a vote of the electors residing in the unincorporated areas of such township, constitute an unlawful delegation of legislative authority?”

The law of zoning has developed rapidly from its comparatively recent origin until now certain well defined principles have become fixed in the law to guide the courts in their consideration of current zoning cases.

To reiterate those fixed principles applicable here in the language of this court would serve only to unduly extend this opinion. We, therefore, call attention to the applicable principles dispositive of this case, as set forth in the following citations, to wit:

“All zoning laws and regulations must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delineation. It varies with circumstances and conditions. But it may be stated as a well-settled general rule that before the court will declare a zoning ordinance invalid, it must clearly appear that it has no substantial relation to the public health, safety, or morals, or to the general welfare. The converse of this proposition is equally true, and a zoning ordinance will be declared invalid where it has no relation to public health, safety, or morals, or to the general welfare. Thus, the inclusion of private land in a residential district under a zoning ordinance, with the resulting inhibition of its use for business'and industrial buildings, to the serious damage of the owner, violates the Fourteenth Amendment of the United States Constitution if the health, safety, convenience, or general welfare of the part of the city affected will not be promoted thereby.” 42 Ohio Jurisprudence 812, Section 13.

• This Court held in Mehl v. Stegner, Dir. of Dept. Bldgs., 38 Ohio App., 416, 175 N. E., 712, as stated in the syllabus: ‘‘The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment of the United States Constitution, if the health, safety, convenience or genera] welfare of the part of the city affected will not be promoted thereby.”

In 42 Ohio Jurisprudence, 813, Section 14, it is stated:

‘‘It is well settled that the power to enact zoning regulations cannot be exercised in an arbitrary, unreasonable, or unjustifiable manner.”

In Nectow v. City of Cambridge, 277 U. S., 183, 72 L. Ed., 842, 48 S. Ct., 447, the syllabus reads as follows :

‘‘The inclusion of private land in a residential disr trict under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment, if the health, safety, convenience or general welfare of the part of the city affected will not be promoted thereby.”

In the landmark case of Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 71 L. Ed. 303, 47 S. Ct., 114, 54 A. L. R., 1016, it is stated in the third paragraph of the syllabus:

“The question whether the power exists to forbid the erection of a building of a'particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined by considering the building or the thing, not abstractly but in connection with the circumstances and the locality.”

And, at page 395, it' is stated:

“If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all respects of those restrictions which we have indicated as pertinent to the inquiry, at least, the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”

Obviously, the converse of that statement is likewise true.

In connection with the question of reasonableness, 58 American Jurisprudence, 953, Section 21, states:

“In considering the validity of zoning laws, the courts must determine whether they are arbitrary or unreasonable in their conception or application, since the zoning power does not extend to unreasonable or arbitrary intermeddling with the private ownership of property.”

Taking into account the character of this location and the uses of the real estate adjacent, immediately and diagonally across therefrom, and the natural development thereof, this court has no difficulty in finding that relator’s real estate, situated as it is on the heavily traveled thoroughfares, has little suitability for residential use, but rather is a prime business site, so that the zoning thereof as residence liA” has no tendency to promote the public health, safety, morals, convenience, or general welfare, and bears no reasonable relation thereto.

We, therefore, find that the application of the zoning regulation in question here as applied to relator’s real estate is arbitrary, unreasonable, and beyond the zoning power.

In view of the foregoing, this court finds it unnecessary to consider the second cause of action.

A writ of mandamus may issue, requiring respondent to issue the permit upon compliance by relator with the established rules and regulations.

Writ alloived.

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


author: Hunsicker, J.

text:
    Shuff, Appellee, v. Shuff, Appellant.
    (No. 4462
    Decided November 3, 1954.)

      Messrs. Carson, Roderick & Holden, for appellee.

      Mr. Stanley Uenlmger, for appellant.
   Hunsicker, J.

This is art appeal on questions of law from a judgment of divorce entered by the Common Pleas Court of Summit County, Ohio, on September 11, 1950.

Ethel Shuff filed an action for alimony only, against her husband, Raymond Shuff, who, after service of summons filed a cross-petition for divorce. Personal service was obtained on these pleadings. Raymond Shuff then moved from Summit County, presumably to Toledo, Ohio.

Ethel Shuff thereafter filed an amended petition for divorce and alimony, and an affidavit for service of summons by publication based on the claim that the residence of Raymond Shuff was “unknown and cannot with reasonable diligence be ascertained.”

The judgment entry of September 11, 1950, so far as máterial herein, recites that:

“This matter came on for hearing on January 3, 1950, on the amended petition of the plaintiff * * *. The court commenced to hear said case on its merits on January 3, 1950, said cause having been duly assigned for trial on said date. Thereafter, said hearing was recessed to January 13, 1950, at which time the court resumed the hearing of the issues in said cause on its merits. * * * the court does order this final judgment to be an order nunc pro tunc, operative in all respects and binding as of the January term of court, 1950, to wit: January 3, 1950.”

On September 7, 1950, Ethel Shuff filed an affidavit which stated, in part, that “the whereabouts of the defendant is unknown to this plaintiff and though she has made diligent inquiry his present address could not be determined and that service of summons and a copy of the petition could not be made upon the defendant in this state of Ohio.”

Thereafter, on August 19, 1953, Raymond Shuff filed his petition to vacate the judgment of divorce granted to Ethel Shuff, saying in such petition that:

“The affidavit required by the foregoing was not filed before the hearing and as shown by the records of the clerk of courts of this county was filed September 7, 1950, at 11:32 a. m., eight months after hearing and purported judgment. Moreover at said time the contents of said affidavit were wholly false and untrue. By reason of which said judgment is a nullity, wholly void and invalid.”

The trial court refused to set aside the judgment, and dismissed such petition to vacate. It is from this judgment that Raymond Shuff appeals to this court.

Under the rule announced in Cox v. Cox, 104 Ohio St., 611, 136 N. E., 823, and Caswell v. Lermann, 85 Ohio App., 200, 88 N. E. (2d), 405, a judgment overruling a petition to vacate a prior judgment of divorce is a final order from which an appeal oh questions of law may be taken. See: 2 Ohio Jurisprudence, Appellate Review, Section 71.

We have examined the record and find but one question that needs to be discussed in these proceedings, and that is: Where the residence of a defendant in a divorce action is unknown, and cannot with reasonable diligence be ascertained, is it mandatory, where service of summons is made by publication, that the second affidavit required by statute, be filed before the taking of testimony in the trial of the divorce action, in order to confer jurisdiction on the trial court?

Or, to state the problem in another way: Does the phrase “before the hearing,” as used in former Section 11294, General Code (now Section 2703.16, Revised Code), mean that, at the time of trial, but before taking any testimony, the affidavit must, be executed and filed; and, if such order is not strictly complied with, the court is without jurisdiction to conduct the trial?

The Supreme Court of Ohio said, in State v. Stevens, 161 Ohio St., 432, 119 N. E. (2d), 616, that: “1. In the construction of a legislative enactment, the question is not what did the General Assembly intend to enact but what is the meaning of that which it did enact. ’ ’

According to Black’s Law Dictionary (3 Ed.), the word “hearing” has an established meaning in equity cases, and is broad enough to include the judicial examination of the issues between the parties, whether of law or of fact.

Although we have.been unable to find a judicial, definition of the word “hearing” in the decided cases in Ohio, we do discover that other jurisdictions have had occasion to give this word the meaning employed by the law.

In the case of West Chicago Park Commissioners v. Riddle, 151 Ill. App., 487, at pp. 505-506, that court said:

“Our Supreme Court has held that, in legal contemplation, the word ‘hearing,’ when used in connection with the trial of a lawsuit, includes not only the listening to the examination of the witnesses but the entire judicial examination of the issues, both of law and of fact, between the parties. * * * Consequently the word embraces the listening to the arguments of counsel on both sides if oral arguments are made and the reading of the arguments if written or printed arguments are presented; and, also, the consideration of these arguments in respect to both points of law and of fact. A less comprehensive meaning of the term would not give to parties such ‘hearing’ as they are entitled to under the law.”

The following cases sustain the position of the Illinois Court of Appeals: Babcock v. Wolf, 70 Iowa, 676, at p. 679, 28 N. W., 490, at p. 491; Chicago Ry. Equip ment Co. v. Blair, 20 F. (2d), 10; Juster Bros., Inc., v. Christgau, Dir., 214 Minn., 108, at p. 120, 7 N. W. (2d), 501, at p. 508; Anthony v. Gilbrath, 396 Ill., 125, at p. 128, 71 N. E. (2d), 84, at p. 85; People v. Richetti, 302 N. Y., 290, at p. 297, 97 N. E. (2d), 908, at pp. 911-912; Morgan v. United States, 304 U.S., 1, at p. 19, 58 S. Ct., 773, 82 L. Ed., 1129, at p. 1133; Keown v. Keown, 231 Mass., 404, at p. 405, 121 N. E., 153, at p. 154.

We must assume that, when the Legislature used the word “hearing” in this statute, it had in mind the legal definition of the word and the sense in which the word is used in our jurisprudence. On that assumption, the word as used in former Section 11294, General Code (now Section 2703.16, Revised Code), embraces not only the listening to the examination of witnesses, but the entire judicial examination of the issues between the parties, both of law and of fact, and the determination of those issues.

Consequently, when the statute said “before the hearing [the party who makes the service], must make and file an affidavit,” the General Assembly meant that such affidavit shall be filed before the hearing is complete. Hence, an affidavit filed before the judicial determination — that is, before the judgment entry is filed with the clerk of courts for journalization — is filed before the hearing as required by such statute.

In the consideration of the problem before this court, we have recognized that the journal entry filed September 11, 1950, was a nunc pro tunc entry, to take effect as of -January 3, 1950, the first day of the -January, 1950, term of court; whereas the affidavit of the plaintiff, Ethel Shuff, stating that the residence of the defendant, Raymond Shuff, was then unknown and could not with reasonable diligence be ascertained, was filed September 7, 1950.

Did this nunc pro tunc entry take effect, so far as the time when such affidavit was required to be filed, on January 3, 1950, or September 11, 1950? We think this question is answered by the pronouncement of the Supreme Court of Ohio in the case of Belden v. Stott, 150 Ohio St., 393, 83 N. E. (2d), 58, wherein the court said:

“1. The power of a court to enter a judgment nunc pro tunc is available in furtherance of justice only, and such judgment is not effective as of the date to which it relates back if that would deny the right of review to any proper party. To preserve such right of review, the date upon which such judgment is actually filed will control. (Fifth paragraph of syllabus in the case of Porter, Exr., v. Lerch, 129 Ohio St., 47, approved and followed.)

“2. A judgment entered nunc pro tunc may be given effect from different dates for different purposes. For some purposes, the judgment may be given effect fiom the actual date of its nunc pro tunc entry. Generally, however, a nunc pro tunc entry of judgment or a nunc pro tunc correction of the records of a judgment is given a retrospective operation as between the parties thereto.”

In the judgment of this court, the affidavit herein was filed within the time contemplated by the statute then in force and effect.

We have examined all of the claimed errors, and find none prejudicial to the substantial rights of the appellant.

The judgment is affirmed.

Judgment affirmed.

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


author: Per Curiam.

text:
    In re Estate of Brown.

      (No. 272
    Decided October 30, 1954.)

      Messrs. Lovell é Woodmcmsee, for exceptor.

      Mr. Reed M. Winegardner and Mr. Otis B. Core, for administrator.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Probate Court of Fayette County sustaining exceptions to the first and final account of Harry Warfield, administrator of the estate of Howard L. Brown.

The widow, Goldie Brown, filed ten exceptions. Exceptions Nos. 2 and 4 were overruled. The court sustained exceptions numbered 1, 3, 5, 6, 7, 8, 9 and 10. The assignments of error in the main follow the rulings of the trial court on the various exceptions which were sustained. The court does not deem it necessary to discuss at length the applicable legal principles, but will briefly apply them to the essential facts, which will be stated in the discussion of the several assignments of error. A detailed statement of the facts which give rise to the controversy is found in the opinion of the trial court, in the case of In re Estate of Brown, which is published in 67 Ohio Law Abs., 291.

The probate judge called the Judge of the Common Pleas Court to hear and determine the issues presented. In his first assignment of error the administrator contends that the acting probate judge had no authority to reverse, vacate or modify the former orders of the probate judge. The order of the court approving the inventory, the order of the court confirming the sale of persona] property at private sale, and the order determining inheritance tax, did not deprive this exceptor of the right to file exceptions to the first and final account.

In his second and third assignments of error the question as to the legality and sufficiency of .the accounting is raised. A part of the assets of the estate consisted of a junk yard, including equipment aqd approximately 700 junked cars. The administrator filed an application and secured an order authorizing him to sell the junk at private sale, which was done over a period of several months. In the liquidation of such assets the administrator employed a bookkeeper, a manager, and several other employees for the purpose of preparing the junk for sale, the sale of the same, and the transportation. In some instances the purchaser paid for the junk by check, and in other instances by cash. The checks were immediately deposited in a bank by the administrator. The cash was retained at the office in a cash account, out of which cash disbursements were made for various purposes, such as wages to the employees, licenses for trucks, insurance and various other items. A detailed record of these receipts and disbursements was kept in a book provided for that purpose at the office of the junk yard. As the cash would accumulate, lump sums of such cash were turned over to the administrator, which he deposited in the bank. In his accounting he charged himself with the receipt of such lump sum payments. He did not account in detail for the receipt of cash for sales made to various purchasers; neither did he ask credit for the various items of cash disbursements. The administrator contends that he is not required, under the circumstances, to give a detailed statement of such cash receipts and cash disbursements; that the matter of the liquidation of this estate was well known to the widow and to his wife, the daughter of the decedent, the only other heir at law; that no charge of fraud or misappropriation of funds is made; and that as a practice the administrator is not required to account for each and every item of cash received and cash disbursed, otherwise the Probate Court, records would become too voluminous. This court recognizes the established practice countenanced by the members of the bar and the various Probate Courts in the reporting of sales of personal property, and in making an accounting to the court in which the fiduciary is not required to give a detailed statement of receipts and disbursements. In most instances this is satisfactory, not only to the court but also to the interested parties. However, where an objection is raised and an issue is presented the court must require the fiduciary to comply with the provisions of Section 2109.30, Revised Code, formerly Section 10506-34, General Code, which section provides in part:

“Every account shall include an itemized statement of all receipts of the fiduciary during the accounting period and of all disbursements and distributions made by him during such period, verified by vouchers or proof.”

The trial court sustained these two exceptions and ordered the administrator to file an amended and supplemental account, itemizing such cash receipts and cash disbursements. The record shows that counsel for the administrator, on two occasions during the hearing, indicated the willingness of the administrator to render such supplemental account. In view of the exceptions and the manner in which the assets were liquidated and the records kept at. the junk yard, this court is of the opinion that the trial court very properly sustained these two exceptions.

In his fourth assignment of error the administrator contends that the trial court erroneously sustained exception No. 5 in which the question was raised as to the right of the administrator to pay himself as wages during the liquidation of the assets at the junk yard the sum of $75 per week. The record shows that the widow and exceptor, who at that time was represented by her personal counsel, agreed that for a period of 60 days the administrator should be permitted to compensate himself at the rate of $75 per week for his services iri the liquidation of the assets at the junk yard. The record shows also that this liquidation process extended over a period of more than six weeks. The administrator took credit for $75 per week for a period of thirteen weeks. The trial court sustained this exception, principally on the ground that the administrator could not compensate himself for his services without first having filed a written application with the Probate Court and securing a court order. Aside from the fact that the record shows that the exceptor agreed to such compensation for a limited period, thinking at the time that during such period the liquidation would be completed, we do not believe that the failure of the ex-ceptor to agree to compensation for a longer period is material. About two months after the administration was opened, the administrator filed a written application with the Probate Court to sell the assets of the junk yard at private sale. The Probate Court, on March 27, 1953, in granting the order authorized the administrator to “proceed according to law to sell said personal property at private sale, for the best price obtainable.” The administrator at that time was in the process of liquidating such assets at private sale. The record shows that subsequently the administrator had numerous conferences with the probate judge relative to his conduct of the administration of this estate and particularly the liquidation of the assets at the junk yard. The administrator called as a witness the probate judge and sought to produce evidence to the effect that the administrator, together with his counsel, had made a verbal application to the probate judge for authority to compensate himself at the rate of $75 per week during the time the junk yard was being liquidated, and that the probate judge verbally made such an order. The trial court sustained an objection to this line of testimony, and a proffer was made as follows: “If the witness had been permitted to answer- he would have stated that he did verbally authorize the payment of $75 per week to the administrator for extra compensation, and he believed that it would be reasonable and proper.” In our opinion this testimony should have been admitted and prejudicial error was committed in the failure to admit such testimony. Upon the basis of this testimony a nunc pro tunc order would have been proper. A nunc pro tunc order can be made at this time, journalizing the verbal order which was made by the probate judge. 23 Ohio Jurisprudence, 673, 678, Sections 249, 256. The trial court was in error in sustaining this exception, and this assignment of error is well made.

In his fifth assignment of error the administrator contends that the trial court erroneously sustained exception No. 6, which raises the question as to the right of the manager of the business to draw a weekly salary as set out in the account, which shows that he took part of his salary in cash and part by check and that the cash payment amounted to $25 per week. At the time the administrator took charge of the administration of this estate, according to the record, he agreed with the manager to pay him an additional $25 weekly salary in cash for the additional responsibilities which the manager would assume over and above the responsibilities which he carried during the lifetime of the decedent. No question is raised as to the reasonableness of such compensation. The exception was sustained by the trial court on the ground that the administrator was first required to secure an order from the Probate Court. The record shows that all parties concerned recognized the fact that in the liquidation of the assets of the junk yard the administrator would not only be required to expend time and effort himself, but would require the assistance of the former manager who was acquainted with prospective purchasers, who knew the junk yard business, and whose services were needed to expedite the liquidation. In our opinion the absence of a court order did not deprive the administrator of the right to employ and compensate the necessary workmen to conduct the liquidation; and so long as no question is raised as to the reasonableness of such compensation, the administrator should be entitled to take credit for such items. In our opinion the trial court erroneously sustained this exception.

In his sixth assignment of error the administrator contends that the trial court erroneously sustained exception No. 7, which raises the question as to the authority of the administrator to grant vacation periods to the employees, during which time they were compensated at the regular rate. Here again the Probate Court sustained this exception on the ground that the administrator had not first secured a court order. The same legal principle applies to this matter as to the matter discussed under assignment of error No. 5. The record shows that at the time the administrator took charge of the business he agreed with his employees that they should have a vacation period with pay. He carried out this agreement and took credit in his account for compensation paid to three employees for a one-week vacation period. In our opinion the trial court erroneously sustained this exception.

In his seventh assignment of error the administrator contends that the trial court erroneously sustained exception No. 8, which raises the question as to the amount of compensation to which the administrator is entitled for the administration of the estate. The administrator took credit for compensation which exceeded that, allowed by Section 2113.35, Revised Code, formerly Section 10509-192, General Code. The administrator did not file an application for additional compensation for extraordinary services as provided in Section 2113.3(5, Revised Code, formerly Section 10509-193, General Code. Although it is a practice for an administrator to file a written application and secure a court order, either upon notice to the parties interested or at an ex parte hearing, prior to filing the account, the statute does not require a formal written application. Section 2113.36, Revised Code, authorizes the Probate Court to grant an additional allowance over and above that provided for in Section 2113.35, Revised Code, for actual and necessary expenses and for extraordinary services not required of the administrator in the common course of his duty. When the administrator filed his.account and asked the court to allow a credit for compensation over and above that allowed under Section 2113.35, Revised Code, the matter of determining whether such an allowance should be granted was before the court. Upon exception being filed to this credit, an issue of fact was made which the Probate Court could try and determine. The acting probate judge took testimony on this exception, but did not attempt to fix compensation, reserving it for future determination. In view of the reservation we do not find this assignment of error well made.

In his eighth assignment of error the administrator contends that the trial court erroneously sustained exception No. 9, which raises the question as to the reasonableness of counsel fees. The record shows that according to the minimum fee schedule adopted by the bar of Fayette County and followed as a matter of practice by the Probate Court the counsel fees for services rendered would amount to approximately $1,388. The administrator took credit for $2,243. Under Section 2113.36, Revised Code, “reasonable attorney fees paid by the executor or administrator shall be allowed as a par* of the expenses of administration. The court may at any time during administration fix the amount of such fees and, on application of the executor or administrator or the attorney, shall fix the amount thereof.” The trial court, in rejecting the item for counsel fees, to a large extent based its dis-allowance of this item on the fact that no application had been filed to fix such fees. While it is the practice in most Probate Courts to file an application to fix counsel fees prior to the filing of an account, the statute does not expressly provide that the filing of an application is essential. The statute gives the right to the Probate Court at any time during the administration to fix the amount of such fees. When the administrator sought to take credit in his account for the payment of $2,243 to counsel for legal services the matter was before the court. Upon an exception being filed to this credit an issue of fact was made which the Probate Court could try and determine. Testimony was taken as to the extent of services rendered by counsel and what would be reasonable compensation for such services. However, the court did not determine the amount of fees for which the administrator was entitled to take credit, but reserved this matter for future determination. In view of the reservation this assignment of error is not well made.

In his ninth assignment of error the administrator contends that the trial court erroneously sustained exception No. 10, which raises the question as to the amount for which he should be charged for sale of the remaining portion of the junk to Helen Warfield. It appears that the highest bid was $2,850, and that it was agreed that the administrator would sell for the highest bid. The administrator takes the position that in view of the fact that there were certain moneys due Helen Warfield from her mother, the exceptor herein, for rents collected on certain pieces of real estate, he should not be required to charge himself for the full amount of said sale, until exceptor properly accounted for rents. The trial court was correct in sustaining this exception on the ground that the failure of the exceptor to account for rents collected does not relieve the administrator of his duty to correctly report the full amount of the sale price of $2,850. This assignment of error is riot well made.

In his tenth assignment of error the administrator contends that the trial judge erroneously held that the administrator failed to comply with the provisions of Section 2113.30, Revised Code, formerly Section 10509-9, General Code, which states that after the expiration of one month following the date of his appointment an administrator is required to apply to the Probate Court for authority to continue the business. The court held that the facts in this case placed the administrator within the provisions of this section. This section has no application where the administrator is not continuing the business but is in the process of the liquidation of assets under a court order for the sale of the assets at private sale. The record is very clear that at no time did any of the parties in interest claim that the business was being continued, but at all times recognized that the business was being liquidated. Unquestionably this liquidation was being conducted under an order of court for the sale’of the assets at private sale. In our opinion, the trial court was in error in ruling that the administrator failed to comply with the provisions of Section 2113.30, Revised Code.

The judgment of the trial court is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Wiseman, P. J., Miller and Horn beck, JJ., concur.


author: Wiseman, P. J.

text:
    Sinclair, Appellant, v. Sinclair, Appellee.

      (No. 131
    Decided December 31, 1954.)

      Mr. Lloyd B. Bennett and Mr. Eugene B. Backer, for appellant.

      Mr. Waldo E. Young and Mr. R. William Patterson, for appellee.
   Wiseman, P. J.

Tliis cause is submitted on motion of defendant, appellee herein, to dismiss the appeal on the ground that the order from which the appeal is taken is not a final order. The order from which the appeal is taken is an order allowing the defendant temporary alimony, temporary support for their minor child, and expense money pending the suit.

An order allowing temporary alimony is not a final order within the provisions of Section 2505.02, Revised Code, unless the record shows an abuse of discretion. McMahon v. McMahon, 156 Ohio St., 280, 102 N. E. (2d), 252; 2 Ohio Jurisprudence (2d), 663, Section 80. Appellant contends that the record shows an abuse of discretion on the part of the trial court. A hearing was had on the motion and evidence presented. The factual situation which the appellant contends shows an abuse of discretion was this: In 1943, in the Common Pleas Court of Warren County, Ohio, the wife obtained a decree for permanent alimony, and a separation agreement entered into between the parties was approved and adopted by the court and incorporated in the decree. In the separation agreement the wife, in consideration of the payment of a cash sum of money and the transfer to her of certain property, released the husband from the claim for alimony, either temporary or permanent; agreed not to apply for any allowance for counsel fees or alimony, either temporary or permanent, in any action for divorce; released the husband from all obligations of future support for her minor children; and covenanted that she would provide the proper maintenance, support and education for such minor children.

The action now pending in the Common Pleas Court of Preble County was instituted by the husband for divorce, to which the wife filed an answer and cross-petition asking for a divorce and other relief. The wife filed a motion for temporary alimony, expense money to maintain the suit, and a reasonable allowance for temporary support of the minor child. The court granted $10 per week as temporary alimony, $10 per week as temporary support for the child, and $150 as expense money.

Appellant contends that the trial court was guilty of an abuse of discretion in granting the order, in view of the provisions of the separation agreement and the decree entered by the Common Pleas Court of Warren County. Does such act constitute an “abuse of discretion’’ subject to review at this state of the proceeding? “Abuse of discretion” is difficult of precise definition. It has been defined differently by the courts of this state. The definition which is most favorable to appellant is given in State v. Shafer (1942), 71 Ohio App., 1, 47 N. E. (2d), 669, where the court, on page 4, said:

‘ ‘ In our judgment it does not of necessity mean, and in the instant case certainly does not mean, ulterior motive, arbitrary conduct, or a willful disregard of the rights of a litigant.
“It does mean, in our judgment, the failure to apply the principle of law applicable to a situation, if thereby prejudice results to one of the litigants.”

This principle of law was quoted with approval in State v. Virgi, 84 Ohio App., 15, 81 N. E. (2d), 295.

In Fessenden v. Fessenden, 32 Ohio App., 16, 165 N. E., 746, the court, on page 19, said:

“As laid down in the books, there are different kinds of discretion that may be exercised by the trial court. There is the discretion in the sense of the exclusive right to decide as that court pleases, which will not be reversed by an appellate court. There is a discretion in the decision as to what is just and proper under the circumstances. The latter kind of discretion will not be reversed unless there was an abuse of it; that is, when it clearly appears it was exercised on grounds or for reasons clearly untenable, or to an ex tent clearly prejudicial to the rights of the complaining party. That would be its abuse. In all cases courts must exercise a discretion in the sense of being discreet, just, circumspect, prudent, and exercising cautious judgment.”

In State v. Ferranto, 112 Ohio St., 667, 148 N. E., 362, the court, on page 676, quotes with approval from Bouvier’s Law Dictionary as follows:

“ ‘ Abuse of discretion. A discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ”

That court, at page 677, also quoted from Murray v. Buell, 74 Wis., 14, 41 N. W., 1010, as follows:

“ ‘The term * * * as used in the decisions of courts and in the books, implying, in common parlance, a bad motive or wrong purpose, is not the most appropriate. It is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.
“ ‘Where the court does not exercise a discretion in the sense of being discreet, circumspect, prudent, and exercising cautious judgment, it is an abuse of discretion.’ Words and Phrases.”

Under the facts presented in the instant case “abuse of discretion” does not mean a bad motive, a wrong purpose, or an intentional wrong on the part of the trial court, but rather the exercise of a discretion to an end or purpose not justified by, and clearly against reason and the evidence. Whatever the term “abuse of discretion” implies, one of the essentials, in order for the action of the lower court to constitute reversible error, is that its action must plainly appear to effect an injustice to the appellant.

See, also, Sunshine Bus Lines, Inc., v. Craddock (Tex. Civ. App.), 112 S. W. (2d), 248, 252; Long v. George, 296 Mass., 574, 7 N. E. (2d), 149; Wilson v. Michigan State Board of Registration in Medicine, 228 Mich., 25, 199 N. W., 643; McNeil v. McNeil, 46 Ohio Law Abs., 244, 68 N. E. (2d), 338; 1 Corpus Juris Secundum, 402; 27 Corpus Juris Secundum, 135; 3 Ohio Jurisprudence (2d), 715, Section 746.

In finding that the record in this case shows an abuse of discretion, we are not unmindful of the ruling in Steiner v. Custer, 137 Ohio St., 448, 31 N. E. (2d), 855, the second paragraph of the syllabus being as follows:

“The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for a new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court.”

In our opinion more appears in the record in this case than an error of law. In the misapplication of the law, the trial court made an order which, if given effect, precludes the possibility of placing the parties in statu quo upon the final hearing of the cause. Once the money is paid under the order, it would be beyond the power of the court to correct the error if eventually it be found that the order was not justified.

The undisputed facts in the instant case require the application of well-established principles of law. The general rule is that a decree for permanent alimony which approves and incorporates in it a separation agreement providing for an award of alimony to the wife is not subject to modification by a court after term, in the absence of fraud, misrepresentation or mistake. Law v. Law, 64 Ohio St., 369, 60 N. E., 560; Newman v. Newman, 161 Ohio St., 247, 118 N. E. (2d), 649; Mozden v. Mozden, 162 Ohio St., 169, 122 N. E. (2d), 295; Kintner v. Kintner, 78 Ohio App., 324, 65 N. E. (2d), 156.

However, we are here concerned with an order for temporary alimony rather than a modification of a former decree granting permanent alimony. In the instant case the wife in a separation agreement relinquished her right to temporary as well as permanent alimony. No charge of fraud, misrepresentation or mistake is made.

In Norton v. Norton, 111 Ohio St., 262, 145 N. E., 253, the wife brought an action for alimony in Lucas County, Ohio, in which action a decree was entered awarding alimony, and the evidence showed that the husband had made full satisfaction of the award. Subsequently, the husband filed a suit for divorce in Lo-rain County, Ohio, in which action the wife filed a motion for temporary alimony. An order for the payment of temporary alimony was granted. The first paragraph of the syllabus is as follows:

“A judgment for alimony rendered in an action solely for permanent alimony brought by the wife, which judgment is fully satisfied, does not bar an application for alimony pendente lite made by the wife for the purpose of obtaining funds with which to enable her to make a defense in a suit for divorce brought by the husband subsequent to the alimony suit instituted by the wife, where it appears that such wife has not sufficient means of her own to make a defense.”

On page 270 of the opinion the court discussed the purpose of granting temporary alimony and said :

“Temporary alimony js granted the wife upon the theory that she is entitled to make her defense, and that she has no means to defend herself during the pendency of the suit. In the case herein ample evidence exists of the wife’s financial inability to conduct the defense.”

In that case temporary alimony was granted as expense money to defend the suit. The Norton case is not authority for the proposition that temporary alimony may be granted when the wife by a separation agreement had relinquished it, and such agreement had been approved and incorporated in a decree for alimony. In the Norton case a separation agreement was not involved.

In Davis v. Davis, 39 Ohio Law Abs., 29, 51 N. E. (2d), 288, the court cited and followed the Norton case. In that case the husband filed a suit for divorce. The wife filed a motion for temporary alimony and counsel fees, which motion was sustained. An appeal was taken from that order. On the hearing on the motion a separation agreement was introduced. It appears that in a former action the separation agreement had been approved and confirmed by the court in its decree. In the agreement the wife relinquished all right to alimony. In that case it is stated that the order appealed from was an order allowing $75 for expenses incident to the action. Apparently no temporary order for support of the wife was involved. In that case abuse of discretion was not claimed, and doubt was expressed as to whether the order appealed from was a final order and, therefore, reviewable. However, the court did make certain observations which consist of obiter dicta. The court pointed out the statutory limitation on the right of the husband and wife to contract respecting alteration of their legal relations. The court observed that the exception mentioned in the statute (Section 8000, General Code) permits the husband and wife to agree only to an immediate separation and make provision for the support of either of them and for minor children during the separation. In 1951, Section 8000, General Code, became Section 8002-6, General Code, and now is Section 3103.06, Revised Code. There has been no substantial change in the provisions of the section. In the Davis case the separation agreement did not provide for the relinquishment of any rights by the wife in the event either brought an action for divorce. To that extent the separation agreement in the instant case differs from, and is much broader in its provisions than, the agreement in the Davis case. In that case the court, in commenting on the legal effect of the statute, on page 31, said:

“Insofar as the contract undertook to preclude the defendant from seeking an order of the court for an allowance for her expenses incident to temporary alimony, it is beyond the statute and probably would be against public policy.”

At the time the separation agreement was executed in the instant case, Section 8000, General Code, provided as follows:

“A husband and wife cannot by any contract with each other alter their legal relations, except that they may agree to an immediate separation, and make provisions for the support of either of them and their children during the separation.”

In the instant case we hold that it lies beyond the power of the wife to release in a separation agreement her right to expense money in a subsequent divorce case, which may be granted under authority of Section 3105.14, Revised Code, which in part provides :

“On notice to the opposite party of the time and place of the application, the Court of Common Pleas, or a judge thereof in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit and * * * during the pendency of the action for divorce * * *.” (Emphasis supplied.)

Any provisions in the separation agreement whereby the wife relinquishes her right to expense money pending a suit is against public policy and void. The trial court very properly ignored this provision in the separation agreement. The order for expense money, being based on a proper showing of need on the part of the wife, and the ability of the husband to respond, was in all respects proper and legal, and was within the province of the court to grant, as provided in Section 3105.14, Revised Cod.e. The courts in other jurisdictions are not in accord on this question. See 116 A. L. R., 947, and 15 A. L. R. (2d), 1270.

With respect to that part of the order granting temporary alimony for the support of the wife, we find that the separation agreement embraced such allowances; that the parties, under Section 8000, General Code, were competent to contract with reference thereto ; and that the wife relinquished her right to support “during the separation” as permitted by Section 8000, General Code. The award for alimony made by the Warren County Common Pleas Court is binding on both parties in the absence of fraud, misrepresentation or mistake. The Common Pleas Court of Preble County was without authority to grant temporary alimony for the support of the wife, which would in legal effect operate as a modification of the decree of the Warren County court. In our opinion the general rule heretofore stated is controlling. In Newman v. Newman, supra, the court had before it the question of a modification of an alimony decree. The language of the court on page 250 has equal application to the factual situation here presented. The court said:

“The parties voluntarily entered into a valid contract without mistakes, misrepresentation or fraud. At their instance the agreement was submitted to the court and was duly approved. It properly was incorporated into the decree, and plain justice would seem to require that it be considered as binding both parties thereto.”

The motion for temporary alimony for the sustenance of the wife pending suit should have been overruled. In sustaining that branch of the motion the trial court abused its discretion.

We come now to consider that part of the order granting a temporary allowance for the support of the minor child. There is a real distinction between alimony and an allowance for the support of a minor child. Pretzinger v. Pretzinger, 45 Ohio St., 452, 15 N. E., 471, 4 Am. St. Rep., 542; 17 American Jurisprudence, 531, Section 695. Where a decree of divorce provides for the support of minor children, the jurisdiction of the court granting the decree, with respect to support and custody of the children, is continuing. Seitz v. Seitz, 156 Ohio St., 516, 103 N. E. (2d), 741; Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212; Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10; Neil v. Neil, 38 Ohio St., 558. We can make no distinction between a decree of divorce which provides for support of minor children, and a decree for permanent alimony which provides for their support. In either case the jurisdiction of the court granting the decree with respect to the custody and support for the children is a continuing one.

The factual situation here presented raises a jurisdictional question. The proper forum in which to raise the question respecting a modification of the decree is the Common Pleas Court of Warren County, the court which granted the decree. Corbett v. Corbett, supra; In re Crist, 89 Ohio St., 33, 105 N. E., 71; Rogers v. Rogers, 51 Ohio St., 1, 4, 36 N. E., 310; Collins v. Collins, 79 Ohio App., 329, 333, 73 N. E. (2d), 814; Rauth v. Rauth, 73 Ohio App., 564, 569, 57 N. E. (2d), 266; 14 Ohio Jurisprudence, 544, Section 141. The Common Pleas Court of Preble County was without jurisdiction to make an order. This branch of the motion should have been overruled.

The assumption of jurisdiction by the Common Pleas Court of Preble County on the question of a temporary allowance for the support of the minor child, under the facts in this case, amounted to an abuse of discretion as herein defined.

As there was an abuse of discretion on the part of the trial court, the motion to dismiss the appeal is overruled.

Motion overruled.

Miller and IIornbeck, JJ., concur.


author: Deeds, J.

text:
    Cashen, Appellee, v. Dunkel et al., Appellants.
    (No. 656
    Decided October 13, 1953.)

      Messrs. Ramsey cB Dirlelius and Messrs. Merrhner <fi Unizaepfel. for appellee.

      Messrs. Flynn, Py <B Kruse and Mr. Clarence E. Moyer, for appellants.
   Deeds, J.

This appeal is on questions of law from a a judgment of the Court of Common Pleas of Erie County. The parties will be referred to herein as they appeared in the Court of Common Pleas, the plaintiffappellee as plaintiff, and the defendant-appellants as defendant Dunkel and defendant Kaufman.

The judgment was awarded against the defendants as damages for personal injuries sustained by the plaintiff as the result of being struck by a truck on January 3, 1950, brought about as claimed by the plaintiff as the result of a collision of two automobiles at the intersection of Gamp and West Jefferson Streets in Sandusky, Erie County, Ohio.

Camp Street, in that city, is an improved main thoroughfare extending in a northerly and southerly direction and is intersected on the easterly side by West Jefferson Street, which extends in an easterly and westerly direction and terminates at Camp Street. It is conceded that there was a “stop sign” located on the northerly side of West Jefferson Street at the approach to Camp Street.

The negligence charged by the plaintiff is that the defendant Dunkel operated an automobile from West Jefferson Street into such intersection, in violation of an ordinance of the city, without yielding the right of way, resulting in a collision with the automobile of Mildred L. Puglisi then being operated in a northerly direction .on Camp Street, thereby causing a truck being operated by one Weske following the Puglisi automobile to be diverted from its course striking the plaintiff; and that the defendant Kaufman was negligent in having a large truck parked in violation of an ordinance of the city at the southeast corner of the intersection, which obstructed the view of the operators of the automobiles as they were approaching the intersection and thereby contributed to the causing of the collision and plaintiff’s injuries.

The answer of the defendant Kaufman was a general denial of negligence. The answer of the defendant Dunkel was in substance that the Weske truck struck the plaintiff about two minutes after the collision, while plaintiff was walking near or standing in the street at the left rear of plaintiff’s automobile then parked on the west side of Camp Street about 50 feet south from the place of the collision of the automobiles, and that any injuries suffered by plaintiff were the result of plaintiff’s own negligence in getting out of the automobile and walking on the travelled portion of the street without observing traffic and the negligence of Weske in operating the truck which struck plaintiff.

On the trial to a jury, at the conclusion of all the evidence, each defendant made a motion for a directed verdict, following which motions the plaintiff also made a motion for a directed verdict. Thereafter, the defendant Dunkel withdrew his motion for a directed verdict, which withdrawal was acknowledged by the court, following which the court arrested the case from the consideration of the jury and entered a judgment in favor of the plaintiff against both defendants.

Motions for judgment notwithstanding the findings of the court and for a new trial by each defendant were overruled.

The motion of the defendant Kaufman for a directed verdict followed by the motion of the plaintiff for a directed verdict was a submission of the issues between those parties to the court, and, in effect, both of those parties thereby requested the court to determine the issues without a jury.

In the case of First National Bank v. Hayes & Sons, 64 Ohio St., 100, 59 N. E., 893, the first paragraph of the syllabus is as follows:

“Where, at the conclusion of the evidence in a case, each party requests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence.”

It appears from the evidence of the plaintiff, contained in the record, that at about 3 o’clock p. m. on January 3, 1950, the plaintiff parked an automobile headed in a southerly direction on the west side of Camp Street a short distance south from the intersection where the collision subsequently occurred, and at the time of the collision plaintiff was standing near the left rear end of the automobile intending to cross over Camp Street to the Blade Cafe, located on the opposite side of Camp Street at the southeast corner of the intersection, for the purpose of performing repair work on a cigarette machine; and that while standing-in that position observing the street respecting traffic, plaintiff was struck by the Weske truck, resulting in the injuries of which plaintiff complained.

The testimony of Weske, the operator of the truck, is that his truck was following the Puglisi automobile at about 18 or 20 miles per hour and was to the rear of that automobile a distance of 150 feet when the collision occurred; that it was raining and the surface of Camp Street was wet and slippery; that he considered the situation presented an emergency; that to control his vehicle he applied and released the brakes and attempted to turn same; but. that the truck skidded and was brought into collision with the plaintiff and the parked automobile.

The defendant Kaufman testified that the Kist truck was 24 feet in length, seven and one-half feet in width and seven feet, eight inches in height and that at the time of the collision such defendant had the truck parked on the east side of Camp Street next' to the curb at the southeast, corner of the intersection, with the forward end about three or four feet from the south curb of West Jefferson Street. There was testimony by other witnesses from which it might be found that the forward end of the truck was beyond the curb and projecting into the intersection.

Both operators of the automobiles involved in the collision testified that their views while approaching the intersection were obstructed by the parked truck, and it is clear from the undisputed physical facts that the truck was an obstruction to the views of both operators as they approached and entered the intersection. The pertinent provisions of the ordinance, prohibiting the parking of trucks, relied upon by plaintiff are as follows:

“(d) Within twenty-five feet of the curb of an intersecting street, or, if none, then within fifteen feet of the property line of said intersecting street, except at alleys.
“(e) On a cross-walk.”

The violation of the provisions of the ordinance would amount to negligence per se. Schell v. Dubms, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A. 1917A, 710; Patton, Admx., v. Pennsylvania Rd. Co., 136 Ohio St,, 159, 24 N. E. (2d), 597.

While there was a conflict in the evidence respecting the time which elapsed between the instant of the impact of the collision of the automobiles and the striking of plaintiff by the truck, nevertheless, there was substantial evidence and testimony to the effect that the two occurrences were practically, if not altogether, simultaneous. In our view, the issue on that subject presented a question of fact.

Counsel for both defendants contend with forceful emphasis that under the evidence the plaintiff was guilty of contributory negligence as a matter of law for the reason that plaintiff did not undertake to cross Camp Street at a strip of walk referred to by counsel for defendants as being a crosswalk, at the intersection, located a short distance north from plaintiff’s parked car.

As we view the situation presented by the record, this contention of counsel for the defendants becomes immaterial in view of plaintiff’s testimony, if believed, that at the time plaintiff was struck the plaintiff was not in the act of crossing the street but was standing at the rear of the automobile observing traffic and considering the feasibility of crossing the street.

The issue of contributory negligence under such circumstances presented a question of fact in harmony with decisions of the Supreme and appellate courts in Ohio presenting analogous circumstances and conditions. Standard Motor Sales v. Miller, 30 Ohio App., 7, 164 N. E., 55; Giglio v. Lasita, 73 Ohio App., 207, 55 N. E. (2d), 666; Mansperger v. Erhnfield, 59 Ohio App., 74, 17 N. E. (2d), 271; Glasco v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210.

It is our conclusion also on consideration of all the evidence contained in the record that the question of proximate cause presented a question of fact to be determined under the established rules of law applicable to the determination of fact issues as announced by the Supreme and appellate courts of Ohio. Glasco v. Mendelman, supra; Mudrich, a Minor, v. Standard Oil Co., 153 Ohio St., 31, 90 N. E. (2d), 859; Gedeon, Admr., v. East Ohio Gas Co., 128 Ohio St., 335, 190 N. E., 924; Franz v. Levine, 72 Ohio App., 280, 51 N. E. (2d), 219; Blessing v. Welding, 226 Iowa, 1178, 286 N. W., 436; Rubin v. Rainbo Baking Co., 36 Ohio Law Abs., 476, 44 N. E. (2d), 483; Yungbluth v. McDonald, 35 Ohio Law Reporter, 403.

Therefore, the record in this case presents a situation where at the conclusion of the evidence the defendant Kaufman, by a motion for a directed verdict, in effect requested that the court weigh the evidence and determine the issues. The defendant Dunkel, in withdrawing a similar motion made prior to a motion by the plaintiff of a like character for a directed verdict, indicated an objection to a submission of the issues of both fact and law to the court for final determination.

We find, therefore, that since the record presented a conflict in the evidence on disputed issues of fact, as hereinbefore indicated, the court was without authority and committed prejudicial error in arresting the evidence from the consideration of the jury as related to the issues between plaintiff and defendant Dunkel and the judgment against Dunkel must be and is reversed and the cause remanded to the Court of Common Pleas for a new trial.

First National Bank v. Hayes & Sons., supra. Satterthwaite v. Morgan, ,Jr., 141 Ohio St., 447, 48 N. E. (2d), 653; Perkins v. Bd. of County Commrs. of Putnam County, 88 Ohio St., 495, 103 N. E., 377; Nead v. Hershman, 103 Ohio St., 12, 132 N. E., 19, 18 A. L. R., 1419; Pittsburgh, Chicago & Rt. Louis Ry. Co. v. Luthy, Admr., 112 Ohio St., 321, 147 N. E., 336; Steelmaterials Corp. v. Stern, 82 Ohio App., 89, 77 N. E. (2d), 272.

After a consideration of all the evidence contained in the record, together with the assignments of error presented by the defendant Kaufman, we find no error prejudicial to Kaufman and the judgment as to him is hereby affirmed.

Judgment accordingly.

Fess and Conn, JJ., concur.


author: Collier, J.

text:
    Ruff, Appellee, v. Brown et al., Appellants.

      (No. 423
    Decided May 4, 1953.)

      Mr. J. F. Outright, for.appellants.

      Mr. Thomas A. Boulger and Mr. Robert L. Perdue, for appellee.
   Collier, J.

The parties to this action will be referred to as the plaintiff and the defendants as they appeared in the trial court. The plaintiff instituted this action in the Common Pleas Court of Ross County, claiming to be the owner in fee simple of the land in question, and seeking to have her title quieted as against all adverse claims of the defendants and to have the defendants enjoined from interfering with plaintiff’s rights or the rights of other lot owners in the use of the land.

The trial court found that the plaintiff was not the owner of the land, but did find that the two disputed tracts were dedicated as streets for the use of the public and enjoined the defendants from interfering in any manner with the use of the land as public streets. From this judgment, the defendants appealed to this court on questions of law

This controversy arose from the following factual situation: On March 11, 1924, George L. Brown

owned five parcels of land, consisting of approximately 39 acres, in Scioto township, Ross county, Ohio, and on that date,.he subdivided 4.4 acres into the George L. Brown subdivision. All statutory requirements were complied with, the plat of the subdivision was duly acknowledged by the subdivider, certified by the county auditor, and recorded in the Ross County plat records, volume 3, page 189.

The subdivided land fronted on the Cincinnati pike and included the entire frontage of the land owned by the subdivider. The remaining land in acreage owned by George L. Brown lay to the south and rear of the plat. The plat shows 17 lots numbered one to 17 inclusive from west to east along such highway, with an alley reserved in the rear of the lots and two irregular tracts or lots marked “reserved,” one be tween lots 8 and 9, the other on the east end of the subdivision adjacent to lot number 17.

The plat contains this statement:

“Said plat sets forth in detail and describes with accuracy all lands laid out and here granted and dedicated by George L. Brown for streets for use of The public: also the lots intended for sale by numbers and the precise length and width of each and every lot thereon.”

George L. Brown died in December 1927, and after the exchange of deeds between his widow, the defendant Maggie M. Brown, and his children and only heirs and their respective spouses, on October 25, 1928, the widow and heirs conveyed four of the five párcels of land to J. F. Alley and Hazel Alley (plaintiff), including parcel four,' which is the George L. Brown subdivision. On January 26, 1929, J. F. Alley and his wife conveyed an undivided one-half interest in parcel four to C. C. Morgan, who later conveyed to Hazel Alley Ruff (plaintiff) and Harold Ruff, her husband. Harold Ruff died on February 8, 1948, intestate, and thus Hazel Alley Ruff, the plaintiff, acquired title to this land, and is an abutting owner of both tracts marked “reserved” on the plat and the subject of this lawsuit.

The defendant heirs of George L. Brown now claim, as such heirs, to be the owners of the tract marked “reserved” lying between lots eight and nine, and the defendants Frank M. and Lucille M.- Nichols claim to be the owners of the other “reserved” tract on the east end of the plat by reason of a deed from said heirs of George L. Brown, dated October 22, 1948, conveying to them the eastern “reserved” tract adjacent to lot. number 17. Since the date of this deed, the defendants Nichols have exercised dominion and control over this “reserved” tract by cultivating it, 'digging ditches, etc.

All the deeds of conveyance between the widow and the heirs of George L. Brown and from them to the plaintiff, following the description of the lots, contain the statement, “and also all streets, avenues and alleys that are a part of said subdivision.”

The issue is well defined by the pleadings, and the single question for determination in this cause is the ownership of the two tracts marked “reserved” on the plat of the subdivision.

The defendants in their assignments of error claim there was no dedication of the “reserved” tracts for street purposes; that the defendant widow and heirs of George L. Brown, as such widow and heirs, are the owners of the middle “reserved” tract; that the defendants Nichols are the owners of the other “reserved” tract as grantees of such widow and heirs; that the trial court erred in the admission and rejection of evidence; that the decision of the trial court is not sustained by and is against the manifest weight of the evidence; and that the trial court misinterpreted the meaning of the word, “reserved.”

To determine whether the trial court erred in its conclusion that the disputed areas were dedicated streets of the subdivision, we must consider the plat, the deeds of conveyances, the evidence tending to show the intention of the subdivider, and the transaction as a whole. An examination of the plat, plaintiff’s exhibit No. 3, a photographic copy thereof, shows that the alley in the rear of the lots, about which there is no dispute, is marked and described as “16' alley reserved.” (Emphasis ours.) On the disputed tracts is simply the word “reserved.” In the use of the same terminology, “reserved,” did not the subdivider express the same intent and purpose? The plat contains also the statement, “all lands laid out and here granted and dedicated for streets for use of the public: also all lots intended for sale by numbers.” This statement on the plat clearly indicates there are streets in the subdivision, but if the “reserved” tracts which bear no number are eliminated, there are no streets. The subdivision extends the full distance along the highway from the west to the east boundary lines of the property. Had there been no streets intended for the subdivision, no such statement would have been inserted on the plat.

Another important fact is that when the 4.4 acres were laid out into lots the subdivider owned approximately 35 acres of land lying to the south and rear of the subdivision, most of which is now owned by the plaintiff. If the “reserved” tracts were not intended for streets, there is no other means of ingress to and egress from the remaining acreage in the rear. It is not probable that Brown would have sealed off his remaining land from access to the highway, but, on the contrary, it is probable that he intended the “reserved” tracts to be used as streets, not only for the lot owners and the public, but for his own use and purpose.

It should be observed also that the deeds above referred to, convey “all streets, avenues and alleys that are a part of said subdivision.” The defendant heirs of George L. Brown are grantors or grantees in these instruments, and apparently by such statement, at the time the deeds were executed, recognized the existence of such streets.

Furthermore, the plaintiff testified that when she purchased the land from defendants, they told her the “reserved” tracts were for street purposes. The trial court may have relied upon this testimony, and a reviewing court, not being in as good position to judge the credibility of the witnesses as the trial court, may not substitute its judgment for that of the trial court.

The defendants lay great stress upon the literal meaning of the word, “reserved.” Courts no longer adhere to the technical or literal meaning of particular words in a deed or contract, but gather the intention of the parties from the whole instrument. Long v. Fewer, 53 Minn., 156, 54 N. W., 1071. The word, “reserved,” literally means, “to retain,” “to hold back,” “to except.” However, had Mr. Brown intended to except or retain the areas in dispute for his individual use, the most natural thing for him to have done would have been to so indicate on the plat, and not use the same word, “reserved,” as he employed to describe the undisputed alley.

Another fact shown by the evidence throws some light on the question of the intention of all concerned in the use of the word, “reserved.” From the date of the certification of this plat by the county auditor, March 11, 1924, until October 1948, the “reserved” tracts were omitted from the tax duplicate, and only the numbered lots were listed thereon. Had the sub-divider intended to except or retain title to these areas, doubtless they would have been carried on the tax duplicate.

The defendants contend that the statements of the subdivider when the lots were laid out, as testified to by the witness Stanhope, were improperly received in evidence.

One answer of this witnéss shows the nature of his testimony:

“A. After he explained about my land he said he was willing to lay it out in lots, and down at the east end of the land they would put — run a roadway, and also one about the center of the land.”

This testimony is clearly admissible under the following authorities: 26 Corpus Juris Secundum, 119; Davis v. Epstein, 77 Ark., 221, 92 S. W., 19; Poole v. Commrs. of Rehoboth, 9 Del. Ch., 192, 80 A., 683. Quoting from 26 Corpus Juris Secundum, 119, “Besides being admissible as a part of the res gestae, these declarations are admissible as declarations against interest. ’ ’

See, also, 17 Ohio Jurisprudence, 332, Section 264, on the subject of Evidence:

“It may be stated as a broad general rule that declarations against interests, relating to title to or ownership or possession of real property, made by a former owner thereof before he parted with title, which would have been admissible against the declarant, are admissible against subsequent grantees or vendees, or those in privy with such former owner — his heirs — in favor of anyone whomsoever.”

Also, it is held in Tipton’s Lessee v. Ross, 10 Ohio, 273: “The title of the owner of property is bound by his admissions. While one holds title, admissions he makes may be given in evidence against him and against his privy.”

All the defendants as heirs and subsequent grantees and successors in title of George L. Brown are in privy with him and are bound by his declarations relinquishing title to the disputed tracts.

Did the trial court err in rejecting the testimony of the witness, Florence Schiff, as contended by the defendants? This witness is the daughter of the sub-divider and one of the defendants. She was asked these questions: “Why did he mark these lots ‘reserved’? Did your father have any particular purpose in mind when he .marked those lots ‘reserved’? What was that purpose?” Objections to these-questions were either sustained or the answers excluded, and properly so for two reasons: In the first place the witness was not asked to repeat what her father said, but for her own opinion as to his intention and purpose. Secondly, such answer by a party to the action is a self-serving declaration and for that reason not admissible. See 17 Ohio Jurisprudence, Evidence, Section 237.

The plat itself, together with the fact that all statutory requirements were complied with, is sufficient to establish a statutory dedication. However, if for any reason a statutory dedication has not been shown, the intention of the subdivider to lay out the “reserved” tracts as public streets has clearly been shown both by his own declarations and by facts and circumstances which positively' imply such intention. Furthermore, giving full weight to plaintiff’s testimony as to the representations made to her by the defendant heirs of George L. Brown when she purchased the land from them concerning the “reserved” tracts, and this is for the trial court to determine, such agreement may be enforced in equity. Seegar v. Harrison, 25 Ohio St., 14. The judgment of the trial court is well supported and sustained by the evidence, and, since we find no substantial error in the.trial of the case, the judgment is affirmed.

Judgment affirmed.

Gillen, P. J., and McCurdy, J., concur.