author: JONES, O. B., J. Swing, J.

text:
    CIVIL SERVICE — OFFICERS.
    [Hamilton. (1st) Court of Appeals,
    October 17, 1914.]
    Swing, Jones and Jones, JJ.
    State ex rel. John Weiss v. Edward S. Keefer et al.
    Subsequent Board Bound by Determination as to Eligibility for Promotion.
    A municipal civil service commission having once determined that a member of the police force is eligible for promotion is without power, after promotion is duly made by competitive examination, subsequently to reverse its decision with respect thereto, and a subsequent board is bound by such former action.
    Mandamus.

      Denis F. Cash, Alfred Bettman and Henry Hunt, for relator.

      Walter M. Schoenle, city solicitor, and Charles A. Groom,, assist, city solicitor, for defendants.
   JONES, O. B., J.

This is an action in mandamus brought by relator to order the defendants, as civil service commissioners, to certify in connection with the pay rolls of the police department that relator had been appointed and was during the period beginning August 1, 1912, and ending September 15, 1914, employed in pursuance of the act passed April 28, 1913, to regulate the civil service (as found in 103 O. L. 698), as a sergeant in the police department of the city of Cincinnati, such a certificate to be given under a requirement found in Sec. 21 of said act.

Defendants filed an answer in which they admit that the relator was duly appointed and acted as a corporal in the police department from August 1, 1912, till March 19, 1913, and that since the latter date he had been performing the duties of a sergeant in the police department, but they question the regularity and legality of his appointment, and ask for a dismissal of the petition.

There is no dispute as to the facts, between the parties, but defendants contend that because the relator had not, at the time he was examined for promotion, served two years in the department as a corporal, that he was ineligible for an examination at that time and was improperly placed upon the eligible list by the civil service commission and that therefore his appointment, which was then made by the director of public safety from the eligible list, was illegal.

Under the rules of the police department and civil service at that time promotions were made from the position of corporal to that of sergeant by appointment from an eligible list which was prepared by the civil service commission upon promotional examinations held by it. Such an examination was held on March 10, 1913, in pursuance of a resolution of the commission passed February 28, 1913, as follows:

‘ ‘ The chief of police has made a verbal request that all corporals in the police department at the present time be admitted to the competitive examination for sergeancy, as only three corporals are now in the service who are eligible under the rules. Safety Director Cash had made requisition for certification for appointment to the position of sergeant, and there is no eligible list.
“The secretary was directed to hold the promotional examination for this grade as soon as possible and notify all corporals that they are eligible for the examination. ’ ’

This resolution was adopted without dissent, at the meeting, by the three commissioners who at that time made up the civil service commission.

At that time one of the rules and regulations which had been adopted by said civil service commission was rule 84:

“No corporal who has not had at least two years’ service as corporal in the police force of the city of Cincinnati shall be permitted to take an examination for promotion to the position of sergeant.”

These rules also contained rule No. 110, as follows:

“No amendment of these rules shall be made, nor shall any rule be repealed, nor any new rule adopted at the same meeting at which it is proposed, and no final action' to amend, repeal or supplement these rules shall be taken in less than seven days after its proposal and until after a public hearing, of which the commission shall give notice in at least two newspapers of general circulation in Cincinnati.”

The sections of the civil service law in existence in March, 1913, providing for this promotional examination, which it is necessary to consider in this ease, are Sees. 4480, 4481, 4482, 4483 and 4486 G. C., and under their provisions the commission was given full power to prepare rules and regulations to provide for the “grading of offices and positions similar in character in groups and divisions, so as to permit the filling of offices and positions in the higher grades as far as practicable through promotions. ’ ’ In pursuance of this power the commission had provided, by rule 84, that no corporal who had served less than two years as such school be eligible for examination for sergeant. There is, however, no statutory requirement as to the length of time a corporal should serve as such before being eligible for examination for sergeant.

From the action taken by the commission on February 28, 1913, it appears that at that time there were but three corporals then in the service who had been there the necessary two years to make them eligible for certification to the position of sergeant, and that there was then no eligible list. As under Sec. 4481, it was the duty of the commission, upon being notified by the safety director of a vacancy to be filled in the position of sergeant, to certify to him the three candidates graded highest on snch an eligible list, it is apparent that if the rule requiring two years’ service as corporal had not been waived or suspended, only three corporals could have taken the examination and if all three had successfully passed such an examination there would have been but three names to be certified on the eligible list for the making of one appointment as sergeant. The evidence shows that more than one sergeant was to be appointed at that time — the relator himself being the second appointment made under that examination — and it is therefore clear that as a matter of convenience it was then desirable for the commission to waive or suspend that rule if they had the power. No formal amendment or change in rule 84 was made at that time by the commissioners and no steps were taken to that end as provided by rule 110, but the action taken by the commission in its proceedings of February 28, 1913, in providing for the holding of the promotional examination for sergeants while not constituting an amendment or change of its standing rules, was, in effect, a suspension or waiver of the provisions of rule 84.

We are of the opinion that the civil service commission had the power to so waive or suspend this rule, and that its action in making all the corporals then on the force eligible to this examination was within its power, and that the examination was within its power, and that the examination was held according to law. Nor was it necessary to note on its minutes that a rule had been suspended, there being no objection on the part of any member and all members being present. Cushing, Law of Leg. Assemb. Secs. 794 and 1478; Wyman, Admin. Law 108; State v. Board of Education, 1 Circ. Dec. 614 (2 R. 510); Greeley v. Hamman, 17 Colo. 30[28 Pac. Rep. 460].

The record .shows that the statute was complied with in all particulars with regard to the examination which relator passed, and in making of his appointment. Upon a requisition made by the director of public safety for an eligible list, Weiss was duly certified upon that eligible list by the civil service commission itself, and he was duly appointed by the director of public safety, and the commission was notified of his appointment by the director of public safety, and Weiss’ name was then placed upon the official roster of the commission kept in pursuance of Sec. 4483 G. C., and has been so continued up to the time it is now questioned.

The civil service commission having been invested by law with the power to determine the eligibility of Weiss, and having determined him to be eligible, is without power to subsequently reverse its decision. Lazenby v. Civil Service Commission, 116 App. Div. 135 [101 N. Y. Supp. 5]; affirmed, Lazenby v. Homer, 188 N. Y. 588 [81 N. E. Rep. 1172]; People v. Cobb, 13 App. Div. 56 [43 N. Y. Supp. 120]; People v. Preston, 62 Hun. 185 [16 N. Y. Supp. 488]; affirmed, People v. Myers, 131 N. Y. 644 [30 N. E. Rep. 864].

In 29 Cyc. 1433:

“If the power has by law been given to any officer to determine a question of fact, his determination is final, provided he has not been guilty of an abuse of discretion. Such a determination is binding upon the successors in office of the officer who made it.”

Justice Brown, in the opinion of the court in Noble v. Railway, 147 U. S. 165 [13 Sup. Ct. Rep. 271; 37 L. Ed. 123], discusses the power of an officer acting in a quasi judicial capacity to reverse the decision of his predecessor in the same office.

In the case of Ptacik v. People, 194 Ill. 125 [62 N. E. Rep. 530], which is relied upon by defendants, the title of the assistant superintendent of police in Chicago was attacked directly by quo warranto, the statute requiring the promotional examination to be limited to members of the next lower rank; the officer whose title was attacked was not a member of the next lower rank, and was therefore rendered by statute ineligible to examination, and was held to have been illegally appointed. This case can not apply to the case at bar, as it was there not a mere waiver of rule on the part of the commission, but a violation of the statute.

If it was desired to raise the question of the regularity or legality of his appointment, Sec. 29 of the act furnishes an opportunity for a direct attack upon his title, and it would be conducive to a stronger feeling of reliance upon the stability of their tenure by civil service employees, to have any question raised as to tbeir titles by such a proceeding, rather than by a refusal of the civil service commission to certify on the pay roll names that have been placed and so long maintained by them upon their official roster.

The name of the relator being properly upon the roster, and his employment as sergeant having been made in pursuance' of law, it was the duty of the civil service commission to furnish the certificate required under See. 21 of the civil service act.

A writ of mandamus, as prayed for, will therefore be allowed.

Jones, E. H., J. concurs.

Swing, J.

Judge Swing concurs in the above decision, for the reason that the civil service commission having been invested by law with the power to determine the eligibility of Weiss, and having determined him to be eligible, it is without power subsequently to reverse its decision, and the present board is bound by this former action.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    ASSAULT — CRIMINAL LAW.
    [Lucas (6th) Circuit Court,
    November 16, 1912.]
    Wildman, Kinkade and Richards, JJ.
    W. D. Cromley v. State of Ohio.

      1. Omitting Material Element in Stating Law to Jury Erroneous though Correctly Stated in Earlier Proposition.
    It is reversible error to state a proposition of law incorrectly in the charge to the jury by leaving out one material element, notwithstanding the same proposition was correctly stated in an earlier part of the charge.
    2. Authorizing Verdict upon Assault with Dangerous Instrument Erroneous if Count Makes no Such Charge.
    It is also error to so charge the jury as to authorize them to return a verdict of guilty “under the third count of the indictment if they should find simply that the defendant made the assault with a dangerous instrument,” when the third count of the indictment contained no charge of assault made with a dangerous instrument.

      3. Abiding Conviction of Defendant's Guilt not Sufficient to Satisfy Mind Beyond Reasonable Doubt.
    To charge a jury that “if you can say that you have an abiding conviction of defendant’s guilt, then you are satisfied beyond a reasonable doubt,'’ is error for the reason that the statement does not contain all the requirements as to the degree of evidence necessary to satisfy the mind beyond a reasonable doubt.
    [Syllabus by the court.]
    Error.

      C. W. Meek, Byron F. Ritchie and Ralph Emery, for plaintiff in error.

      H. C. Webster, Pros. Atty., and A. F. Connolly, for defendant in error.
   RICHARDS, J.

The plaintiff in error was indicted at the September term, 1911, the indictment containing three counts. The first count charged him with an assault with intent to kill one Rezin Orr; the second count with intent to wound said Rezin Orr, and the third count contained a charge of mayhem committed on said Rezin Orr.

The prosecuting attorney on the trial in the court- of common pleas elected to proceed upon the first and third counts and the jury returned a verdict of guilty on the third count contained in the indictment. Upon that verdict the defendant was sentenced to the penitentiary.

Numerous errors are assigned in this court for which it is contended the judgment of the court below should be reversed. Among other errors insisted upon by counsel are those relating to the charge of the court as given to the jury. During the course of the charge the trial judge properly stated to the jurj?the essential elements constituting the crime of mayhem as charged in the third count in* the indictment, and among others, that before the jury returned a verdict of guilty under that count, they must find from the evidence, beyond a reasonable doubt, that the left eye of the complaining witness, Rezin Orr, was destroyed or put out as a result of the claimed assault. Elsewhere in the charge the trial judge again recurs to the elements necessary to constitute this crime and undertakes to restate them, and in this restatement he omi^s the requirement that the burden rests upon the state in order to justify a conviction under the third count to satisfy the jury beyond a rea,sonable doubt that an eye of said Rezin Orr was destroyed or put out. The court in the concluding portion of this restatement says to the jury, “Unless you find, and before you can find a verdict against the defendant on this count in the indictment, you must find these facts established to your satisfaction beyond a reasonable doubt by the evidence.” By so stating, the trial judge thus emphasized the essential facts as just recited by him, which recital omitted the fact already stated. Tn view of this state of the charge, the jury may have concluded that it was unnecessary, in order to justify a conviction under the third count in the indictment, that they should find that an eye of the complaining witnesses had been destroyed or put out.

The indictment is returned under See. 12416 G. C., which requires that before the defendant can justly be convicted of the particular offense set forth in the third count of the indictment, the eye must be put out or destroyed. The evidence in the case was of such character that it became important for the jury to determine, as one of the essential elements of the crime, the averment contained in the indictment which was omitted in. the restatement made by the trial judge.

I call attention to two cases which shed light upon the question under consideration: Northern Ohio Ry. v. Rigby, 69 Ohio St. 184, 191 [68 N. E. Rep. 1046]; Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289, 298 [88 N. E. Rep. 642; 131 Am. St. Rep. 709].

In each of these cases the correct proposition of law had been given to the jury in charge, but elsewhere in the charge the law was improperly stated. Under that state of the case the Supreme Court say on page 298 of the case last cited that it is impossible for the court to determine which of the instructions the jury followed, and that the court can not assume that the jury selected the one statement which was substantially correct and rejected the other statements which were erroneous, and that under such circumstances the rule that error without prejudice is not ground for reversal can have no application.

We conclude that the charge is erroneous in thus restating the elements and leaving out one material element of the offense as contained in this charge.

The court further charging the jury gives this proposition:

“Before they can find the defendant guilty under the third count of this indictment, they must be satisfied beyond a reasonable doubt from the evidence that the defendant, if he did make this assault, made it with the malicious intent to maim or disfigure the said Bezin Orr, or that he made it with a dangerous instrument,- — that he did make the assault with a dangerous instrument. ’ ’

The language is subject to the infirmity of the earlier part of the charge to which reference has been made, and also to the further objection that it apparently authorized the jury to return a verdict of guilty under the third count of the indictment if they should find simply that defendant made the assault with a dangerous instrument, whereas the third count of the indictment contains no charge of an assault made with a 'dangerous instrument, and we therefore hold that this proposition of law in view of the language in the indictment is erroneous.

The court in defining reasonable doubt uses some language, doubtless inadvertently, to' which we think' it important that attention should be called. He said to the- jury “This doubt should not be speculative or imaginative nor be based on conjecture or fancies; it arises, or may arise from that state of the proof which, after you have considered and compared all the •evidence, and having in mind the presumption of defendant’s innocence, leaves your minds in that condition that you can say that you have an abiding conviction to a moral certainty of defendant’s guilt.” By omitting the word “not” after the word “can” and in front of the word “say,’’-the court states to the jury the opposite of the proposition which he doubtless intended to give in the charge. The charge should have stated in substance that under the circumstances stated the doubt would arise if the minds of the jury were left in such eondition that they could not say they had an abiding conviction to a moral certainty of defendant’s guilt. The language used by the court is, with the correction suggested, substantially the same as was used in the charge as found in Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 [52 Am. Dec. 711], cited with approval in Morgan v. State, 48 Ohio St. 371 [27 N. E. Rep. 710], See also Clark v. State, 12 Ohio 483 [40 Am. Dec. 481].

The trial judge stated to the jury further as follows: “If you can say that you have an abiding conviction of defendant’s guilt, then you are satisfied beyond a reasonable doubt.” This statement contained in two lines in effect justifies a verdict of guilty so far as the degree of evidence is concerned if the jury have an abiding conviction of the defendant’s guilt. We think the language is not sufficiently clear and does not contain all the requirements relating to the degree of evidence that are necessary in defining a reasonable doubt.

The verdict returned by the jury in this case specifically finds the defendant guilty as charged in the third count of the indictment, without making any reference to the first count. The case was submitted to the jury upon both the first and third counts and proper practice would require that the verdict should respond to the issues made on both the first and third counts of the indictment. Wilson v. State, 20 Ohio 26; Jackson v. State, 39 Ohio St. 37.

We have examined the evidence contained in the bill but as the case will have to be reversed and remanded for a new trial, we refrain from passing upon the weight of the evidence.

Judgment reversed and cause remanded for a new trial.

Wildman and Kinkade, JJ., concur,


author: PER CURIAM.

text:
    NEGLIGENCE — TRIAL.
    [Richland (5th) Circuit Court,
    January, 1913.]
    Taggart, Voorhees and Shields, JJ.

      J. P. Arras, Admr. v. Baltimore & O. Ry.
    Question of Contributory Negligence Becomes One for the Court after Showing of Danger Warning to Decedent.
    The testimony indicating that the decedent had warning of his danger in time to have saved himself, the question of his contributory negligence becomes one for the court, and as such not to be submitted to the jury; hence there was therefore no error in directing a verdict for the defendant.
    [Syllabus by the court.]
    Error.

      W. J. Bissman and W. S. Kerr, for plaintiff in error.

      McBride & Wolfe, for defendant in error.

       Affirmed, no op., Arras v. Railway, 89 O. S. 420.

   PER CURIAM.

TMs was an action in the court of common pleas to recover damages for the wrongful death of one Adam Arras, charged to have been caused by reason of the negligent acts of the defendant in error.

The averments of the petition are that the defendant owns, operates and controls a track leading from the main line of its road to and among the shops of the Barnes Manufacturing Co. near the city of Mansfield, in Richland county, Ohio, and that said track was so used by the defendant for the accommodation of said Barnes Manufacturing Co. in shipping its products; that said track was so located that the employees of the manufacturing company were compelled, in the performance of their duties, to pass over said track, and for that purpose they had established a regular place for crossing the same; that said crossing has long existed and was well known to the defendant, its agents and servants; that the time of moving cars upon said track is unfixed and is at the discretion of said company, and ¡that the said decedent, Adam Arras, had no knowledge or notice thereof; that the advance of the cars, by reason of the noise of the factory, can not be heard separate and apart from the other noise of the factory, all of which had a tendency to fender said track extremely dangerous; that, by reason of such dangerous condition, the defendant had caused a flagman or watchman to be stationed at said crossing, at the time of moving cars, to give notice to the employees of said Barnes Manufacturing Co. and to notify and warn them of danger, and that the defendant relied upon such notice being given.

It further recites that on or about June 1, 1910, the said Adam Arras was pulling a large truck along the passage way leading to and over the said crossing above specified; that the approach to said crossing was obstructed by buildings and that the crossing itself was left unguarded by defendant at that time, and no one placed by it to give warning of the approach of ears, and with no one on the front of the moving ears alopg said track to give warning to persons who had occasion to cross said track at said crossing; and without notice, knowledge or warning, and while exercising care on his part, and without negligence on his part, he entered on said crossing and was struck by a box car that was being pushed by an engine that was owned and controlled by the defendant and operated by the defendant, its agents and servants, and received injuries by reason of such collision which caused his death and which occurred on the day last mentioned.

The case was submitted to the jury upon the evidence of the plaintiff and at the close of plaintiff’s testimony, the court on motion directed the jury to return a verdict for said defendant. It is this action of the court in directing a verdict for the defendant that is complained of in the petition in error filed in this court to review the proceedings of the court of common pleas.

It is claimed by the defendant that the said Adam Arras was guilty of negligence contributing to his own injury and that by reason of such contributory negligence, the plaintiff would not be entitled to recover in this action.

The testimony discloses that, just prior to the accident, a foundry foreman of the Barnes Manufacturing Co. passed the decedent, Adam Arras, who was then pulling a large truck towards the track of the railroad company, which truck was being pushed from behind by one Rudolph; that Rogers, the foreman, when he reached the middle oif the railroad track, saw for the first time that the cars were being backed along the track from the south and towards the crossing, and immediately turned and gave warning to the decedent, throwing up his hands and saying to him “Go back,” and at the same time he almost immediately turned and stepped across the track, supposing that the decedent was in a place of safety.

The foreman further testifies that, when he was in the middle of the track, the decedent, Adam Arras, was from six to eight feet behind him when the warning was given, and that, supposing that he would protect himself and make himself safe, he himself crossed the track to the west side and the cars backed between him and the decedent and the other party who was pushing the truck. After the car had passed about half the length of itself, he heard a crash and learned that the decedent had been struck.

The court is of the opinion, from the testimony of the witness- Rogers, that the decedent had warning in sufficient time to have saved himself from collision with the moving ears; that the car was about thirty feet to the south when the warning was given, as shown by the evidence, and that he could have saved himself from injury; and that, as a matter of law,' he was guilty of contributory negligence in proceeding toward the track after the warning had been received, and in coming in collision with the moving cars, by reason of which he was injured.

The court is of the opinion that whether or not the decedent was guilty of contributory negligence is not a question of fact to be submitted to the jury but is a question of law to be determined by the court; and that, for this reason, the action of the court in sustaining a motion to direct a verdict was proper and was not error. The judgment of the court of common pleas is affirmed with exceptions.


author: JONES, E. H., J.

text:
    CIVIL SERVICE — OFFICERS.
    [Hamilton (1st) Court of Appeals,
    October 24, 1914.]
    Swing, Jones and Jones, JJ.
    (Swing, J., not sitting.)
    State ex rel. Edward Mugavin et al. v. Edward S. Keefer et al.
    Valve-Man Being Unskilled Laborer Becomes “Incumbent of the Place” under Present Act and Entitled to Remain on Passing Noncompetitive Examination.
    A valve-man employed in the municipal service under the former civil service law being in the unskilled class, his appointment by the director of public service was legal and he becomes an “incumbent of the place” under the present act; and as such is entitled to remain in the position and to receive pay for his services, subject to his successfully passing a noncompetitive examination when called upon to do so by the commission.
    Error.

      Nelson & Hickenlooper, for plaintiffs in error.

      ’Walter M. Schoenle, city solicitor, and Chas. A. Groom, assist, city solicitor, for defendant in error.
   JONES, E. H., J.

This is an action which involves the construction of the so-called civil service act passed by the eightieth general assembly of the state of Ohio and found in 103 O. L. 698. The action is one for mandamus, the prayer being, in effect, that the defendant civil service commission for the city of Cincinnati be required by the court to certify to the pay roll containing the names of relators, under Sec. 21 of said act.

The facts with regard to the two relators are not identical. It is conceded that the recent decision of this court in Keefer v. State, 37 O.C.C.77 (20 N.S.474), disposes of the questions raised on behalf of the relator, ¥m. S. Boyd. We find, from an examination of the record, that such is the case, and a peremptory writ will issue in favor of Mr. Boyd on the authority of the case above referred to.

Edward Mugavin was appointed, or employed, by the direct- or of public service as a valve-man, under a former civil service law which was repealed by the enactment of the present law. Under the former law “unskilled laborers” were not in the classified service. The rules adopted by the civil service commission under that law classed valve-men as unskilled laborers and not falling within the provisions of the civil service act. It is contended that this-classification is incorrect and that the duties of valve-men are such as to require skill and experience, and that valve-men should be classified and are not within the purview of the word “unskilled.” It is further contended that if this view is correct, then the director of public service had no authority to appoint Mugavin to the position or place which he fills.

With this contention we can not agree. There is no dispute between counsel as to the duties of valve-men and as to the nature of the work which they are required to perform. Upon the agreed statement, in argument, or what these duties are, we are clearly of the opinion that the labor is such as is designated as “unskilled” by the civil service act in force at the time of Mugavin’s appointment, said work requiring no special training, practical experience, or apprenticeship. Having reached this conclusion, it follows that his selection or appointment by the director of public service was legal, and that at the time of the taking effect of the act under consideration he was an “incumbent of the place” under the meaning of Sec. 10 of said act.

It is further contended that even if such be the case he is not now entitled to hold the position or to any compensation for labor performed in such position since August 8, of this year, for the reason that on said date the twelve months’ period within which he would be subject to a noncompetitive examination had passed, and no examination has been taken by him. In this connection it is conceded that no such examination has been held by the civil service commission. It does not appear why this apparently liberal time has been allowed to pass without an examination but there is no intimation, nor indeed can there be any, that Mugavin or any other employee of the city is responsible for this delay.

We believe that the reasonable construction of the last paragraph of Sec. 10, which contains this limitation of twelve months, is to hold that should the commission for any reason delay the noncompetitive examination beyond the ■ time prescribed, it must be held at the earliest time practicable, and that until such time the employees holding over as incumbents of “offices or places” at the time of the taking effect of the act, would continue to hold their places. If the examination is unreasonably or unnecessarily delayed by the commission, the proper remedy would be to proceed against the members in the way provided by statute for compelling officers to perform the duties imposed upon them by law.

Under the undisputed facts in this case as disclosed by the record, we find that the law supports the claim made by counsel for Mugavin, and that he is entitled to remain in his position and receive pay for services rendered, subject to his successfully passing a noncompetitive examination when called upon to do so' by the commission.

The judgment will be reversed, and judgment given here for both of the relators, plaintiffs in error. Writ of mandamus to issue.

Jones, O. B.„ J., concurs.


author: POLLOCK, J.

text:
    CONVERSION — LIMITATIONS.
    [Guernsey (7th) Court of Appeals,
    April Term, 1914.]
    Pollock, Metcalfe and Norris, JJ.
    Gillespie & McCulley v. James Holland et al.
    1. Assertion of Ownership by Party Wrongfully Taking Property not Prerequisite to Action for Conversion.
    It is not necessary for the party taking wrongful possession of personal property of another to assert absolute ownership of the property in order to give the owner, who is entitled to the immediate possession, the right to an action for conversion, but any unauthorized act which deprives the owner of the possession of his property, or the exercise of any dominion over the property inconsistent with his possession, is sufficient.
    2. Bar of Four Years' Limitation Runs from Accrual of Right of Action for Conversion.
    The statute of limitations begins to run at the time the right of action accrued, and an action for the conversion of personal property is barred within four years after that time.
    [Syllabus by the court.]
    Error.

      R. T. Scott, for plaintiffs.

      Rosemond, Bell & Dugan, for defendants.
   POLLOCK, J.

The defendants in error brought an action in tbe court of common pleas of this county, in which they alleged that on or about the — day of October, 1908, the plaintiffs in error wrongfully converted to their own use certain articles of household furniture owned by the defendants in error.

The answer of the defendants below contained two defenses, but it is now only necessary to refer to the second defense, which was a plea of the statute of limitations, alleging that the cause of action did not accrue within four years prior to the bringing of the action.

The case went to trial to a court and jury, resulting in a verdict and judgment in favor of the plaintiffs below, and to reverse that judgment this action is prosecuted.

The plaintiffs below had been residents of the city of Cambridge, and the defendants were engaged in the furniture business in that city. While the plaintiffs below were living in that city they purchased from defendants below some articles of furniture and failed to pay the entire purchase price, leaving unpaid $25.85. Sometime after the purchase of this furniture plaintiffs below stored this and other furniture which they owned, in a room in the city, and moved to the state of Illinois. After plaintiffs below left the city the defendants below took this furniture from the room where plaintiffs had stored it, into their own possession and placed it in their storeroom. They had no lien on any of the furniture but only an account against plaintiffs below for the amount referred to above.

On January 22, 1907, after defendants below had taken possession of the furniture, they wrote to plaintiffs below stating that they had taken possession of their furniture, and that there was a balance due then of $25.85, and "one dollar storage, and that they were willing to sell sufficient of these goods to pay their claim, and to send plaintiffs below the balance of the goods.

After this the defendants below wrote plaintiffs below a number of letters saying that they would sell the furniture, and apply the amount received therefor to the payment of their claim, unless plaintiffs below paid the claim. The last letter was written on May 5, 1908, saying that if plaintiffs below did not promptly comply with this request that defendants below would take judgment and sell this property. In all these letters defendants below say that the furniture is the property of plaintiffs below, but they always asserted their intention to hold this property until the debt which plaintiffs below owed them was paid, and if their demand was not complied with they would sell the property. Plaintiffs below gave defendants below no right to take the property from the room in which it was stored to their storeroom. The defendants below retained possession of this furniture until some time after July 12, 190S, and then sold it.

At the close of the testimony the defendants below requested the court to give the jury in charge the following:

“If you find that the defendants took unlawful possession of the personal property in the petition described, then the court says to you that the cause of action in favor of the plaintiffs accrued at the time of the taking, if plaintiffs then knew of the same, but if they did not know, then as soon as they discovered'that the goods had been taken,'and the party who had taken them.”

This was refused by the court and exceptions noted. In the general charge the court said in substance that if defendants were holding these goods hs goods of plaintiffs, then a cause of action would not accrue until after defendants sold such goods, and if that were after July 12, 1908, then the statute of limitations would not have run against the action, the petition having been filed July 12, 1912.

The only question to be determined by this court in this action is whether the cause of action accrued at the time defendants below took the furniture from the room in which it had been stored by plaintiffs below into their possession, and removed it to their storeroom, or at the time defendants sold this furniture.

The right to an action of conversion of personal property depends upon the wrongful possession by one party of the property of another. It is the wrongful taking of the property that gives the right of action to the owner of the property against ,a wrongdoer. The mere fact that the wrongdoer says, “I have taken possession of your property,” does not relieve him from the action of conversion when he has wrongfully taken possession of the property and is asserting the right to retain that possession until some demands of his are complied with. It is not necessary for the party taking wrongful possession of property to assert absolute ownership of the property in order to give the owner of the property the right to an action for conversion. If the owner, entitled to the immediate possession of his property, has been deprived of that possession by the unauthorized act of another, or by the exercise of dominion over the property inconsistent with the right of possession of the owner, it is a conversion of the property.

“Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion. ‘The action or trover being founded on a conjoint right of property and possession, any act of the defendant which negatives or is inconsistent with such right, amounts, in law, to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by tbe defendant; it is not necessary that it should be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff’s right? If he does, that is in law a conversion, be it for his own or another person’s use.’ While, therefore, it is a conversion where one takes the plaintiff’s property and sells or otherwise disposes of it, it is equally a conversion if he takes it for a temporary purpose only, if in disregard of the plaintiff’s right.” Cooley, Torts *p. 448.

Of the numerous cases sustaining the principle referred to above we will only cite the following: Bristol v. Burt, 7 Johns. (N. Y.) 254 [5 Am. Dec. 264]; Thorp v. Rollins, 68 Vt. 53 [33 Atl. Rep. 896]; University of N. C. v. Bank, 96 N. C. 280 [3 S. E. Rep. 359]; Omaha, & G. S. & Ry. v. Tabor, 13 Colo. 41 [21 Pac. Rep. 925; 5 L. R. A. 236; 16 Am. St. Rep. 185].

The defendants below took possession of these goods and removed them to their storeroom prior to July 22, 1907. They did this without the permission of the plaintiffs below. This act was a wrongful taking possession of. these goods. It is true that they acknowledged the furniture to be the property of the plaintiffs, but they claimed the right to retain that possession nnt.il their account against the plaintiffs below was satisfied, and if not paid by plaintiffs below they claimed the right to sell this property, or sufficient of it, to pay their claim, and after-wards did sell the property.

It is claimed on the part of the plaintiffs in error that the right to an action of conversion did not accrue until 'the disposal of the property by them. The sale of this property by the defendants below did not affect the title of the plaintiffs below in the property in any way. They had title to the property at the time that it was wrongfully taken, arid that title continued after the sale of the property, until they brought the action to recover damages for the wrongful conversion.

The defendants below had no right to take possession of the property, and they had no right to sell it after taking possession; but the act of the defendants below in selling the property did not in any way change the right of the owners to take possession of the property, or if they saw fit, to recover damages for its wrongful conversion.

“An action for either of the following causes shall be barred within four years after the cause thereof accrued— for the recovery of personal property, or for taking, detaining or injuring.” Sec. 11224 G. C.

“The statute of limitations begins to run from the time the plaintiff’s cause of action accrues, unless some recognized exception postpones its operation.” 19 Am. & Eng. Enc. 193.

“Our attention has been called by the defendants in error to the case of Glidden v. Bank, 53 Ohio St. 588 [42 N. E. Rep. 995; 43 L. R. A. 737], as sustaining their position that the cause of action did not accrue until the sale. In that case the property had been pledged, and the pledgee sold the property to himself. All the court decides in that case is that the statute of limitations did not begin to run until the- pledgee did some act that put it beyond his power to perform the conditions of the pledge. The difference between that case and the one we are now considering is that the pledgee in that case had the rightful possession of the property, and the statute did not begin to run until he violated the conditions of the pledge. Tn the case we are considering the defendants below never had rightful possession of the property, and the wrong was committed at the time they took possession of this furniture.

Our attention has been called by the defendants in error of Sammis v. Sly, 54 Ohio St. 511, 519 [44 N. E. Rep. 508; 56 Am. St. Rep. 731]. The only- question the court is there discussing is when the title to property which has been wrongfully taken possession of by another passes from the rightful owner, and they hold that the mere intermeddling with another’s property in a way to deny his title does not of itself divest his title, but that he may treat it as such by commencing an action for conversion. We do not think that this in any way affects the question now before us.

- It follows that the right to maintain this action accrued at the time the goods were taken possession of by the defendants below, that it was error for the court to refuse the request to charge, and also error to charge as stated. Further, as there is no dispute in the evidence as to the time the furniture was taken possession of by the defendants below, the verdict is against the weight of the evidence.

The judgment of the court below is reversed and the case remanded for further proceedings.

Metcalfe and Norris, JJ., concur.


author: JONES, E. H., J. Jones, O. B., J.,

text:
    CONTRACTS — ERROR—LIMITATIONS.
    [Hamilton (1st) Court of Appeals,
    March 14, 1914.]
    Swing, Jones and Jones, JJ.
    John R. Sayler, Exr. v. Lucy E. Sellers.
    1. Action on Agreement to Make Testamentary Provision for Compensation for Services in Caring for an Aged Couple Barred by Statute.
    An action does not lie on an agreement to make testamentary provision for compensation for services in caring for the decedent and his wife in their old age, where the suit to enforce the agreement was not filed for more than two years after the appointment of the executor and more than six months after the rejection of the claim by the executor.
    2. Judgment for Quantum Meruit Embodying Substantial Justice Sustained.
    But where the court found on all the issues, including quantum meruit, for plaintiff and rendered judgment in an amount which embodied substantial justice based upon conclusions which were substantially correct, a reviewing court will not set the judgment aside on the ground that the court erred in a matter of law or logic.
    [Syllabus by the court.]
    Error.

      Peak, Shaffer & Peck and Sayler & Sayler, for plaintiff in error:

      Healy, Ferris & McAvoy, for defendant in error.
   JONES, E. H., J.

The amended petition filed by. the plaintiff, Lucy E. Sellers, in the court below concluded with an alternative prayer for one of three different orders or judgments: first, for an order compelling the defendant executor to deliver to her one hundred and fifty shares of the capital stock of the First National Bank of Cincinnati; second, “if this relief can not by law be granted that she recover of defendant the sum of $37,500 the value of said shares”; third, if such relief can not be granted that she recover from defendant the sum of .$28,921, being the value of her services less the amount received by her with interest from August 11, 1909. There were allegations in the amended petition upon which this alternative prayer was predicated.

Answers were filed by each of the defendants setting forth substantially the same defense to the amended petition of the plaintiff. The answers are long, containing eight separate defenses, which we will not take space to set out verbatim. The contents of the answer will sufficiently appear from the discussion which follows.

The prayer for delivery of the bank stock or judgment for the value thereof was based upon a -written instrument signed by Mr. Yan Wormer September 16, 1907, of which the following is a copy:

“Sept. 16, 1907.
“In addition to the seven thousand dollars invested in 3 1-2 per cent Oin’ti viaduct bonds, one hundred dollars invested in a United States Government bond and sixty shares of Cin’ti Street Bailway stock, I Asa Yan Wormer, give and bequeath to Lucy E. Sellers for taking care of me and my home, at my death, one hundred and fifty shares of First National Bank stock. If Lucy E. Sellers should die before I do, then at my death the one hundred and fifty shares of First National Bank stock goes to her daughter Stella Sellers.
“(Signed) Asa Yan Wormer.”

This was not witnessed', and although testamentary in form no claim is made that it should be treated as a codicil to testator’s will. It is claimed, however, in the amended petition that, at the time of its execution, Mr. Van Wormer agreed to make a codicil to his will incorporating its provisions and bequeathing to Mrs. Sellers the bank stock therein mentioned. It is upon this alleged promise that the prayer for the delivery of the stock is based, the claim being that the executor since the death of Mr. Van Wormer has held said stock in trust for Mrs. Sellers.

The testator, Asa Van Wormer, died August 11, 1909. John R. Sayier, named as executor in the will, was appointed September 18, 1909. On September 22. 1910, Mrs. Sellers presented to said executor a claim for $28,921 for labor performed and services rendered to Asa Van Warmer from April 13, 1897, until August 11, 1909. This claim was disallowed October 20; 1910, and on November 30, 1910, the original petition of Lucy E. Sellers, plaintiff below, was filed against said Sayier, executor, in which she sought to recover said sum of $28,921, with interest from August 11, 1909.

The defendant below admitted in his amended answer the presentation and rejection of this claim. In his sixth defense he admits that plaintiff, Lucy E. Sellers, exhibited to him a paper purporting to be the original of said instrument of date September 16, 1907, set out above, and says that:

“Thereupon this defendant orally disputed and rejected the same, and said to the plaintiff that the instrument was of no validity, and refused to indorse thereon his allowance of it as a valid claim, against the estate.”

Further answering, he claims:

“That the said plaintiff failed to bring an action against this defendant on a cause of action growing out of a failure and neglect on the pan; of Asa Van Wormer to perform any agreement under or evidenced by said instrument with respect to one hundred and fifty shares of the First National Bank stock within six months thereafter.
“That no other exhibition of said instrument or of a claim under said instrument was made to this defendant.
“Wherefore this defendant says that any claim growing out of or evidenced by said instrument is barred.”

In the seventh defense the executor denies that said Asa Yan Wormer agreed to make a will giving plaintiff at his death one hundred and fifty shares of stock of the First National Bank of Cincinnati, or that he agreed with the plaintiff that he would have a codicil to his will executed in due form, etc.

In the eighth defense the executor says that he was appointed September 18, 1909; that he caused notice of his appointment to be published in a newspaper of general circulation, commencing on September 19, 1909, as required by statute; that the said plaintiff failed to bring action against said defendant within two years, on a cause of action growing out of a failure and neglect on the part of Asa Yan Wormer to perform an agreement, as set out in the petition.

We think these defenses as to the agreement to make a will or codicil giving Mrs. Sellers the bank stock are a bar to her recovery upon that claim, as it is conceded that the amended petition in which said claim was first sued upon was not filed until more than two years after the appointment of the executor and nCore than six months after the rejection of said claim by him; the court below was therefore not warranted in basing its judgment in favor of the plaintiff upon this alleged agreement.

The case was submitted below upon all the issues joined, without the intervention of a jury. We say this mindful of the fact that it is contended by counsel for plaintiff in error that the case was tried below only upon the new matters set up in the. amended petition, viz., upon the claim for the bank stock or its equivalent.

The record however discloses that evidence was offered in the trial below as to the terms of the contract of employment, and not only describing the services rendered thereunder by Mrs. Sellers for twelve years as the nurse and housekeeper for Mr. and Mrs. Yan Wormer, but detailing with particularity the arduous and exacting labor and constant attention that were required of Mrs. Sellers. We can see no reason why it would have been considered necessary by plaintiff to have offered this testimony nor by the court to have spent the time in receiving it, unless it was to be applied to a determination of the claim for services upon quantum meruit as originally presented to the executor and as alone sued upon in the original petition and incorporated in the amended petition in the action in the court below'. The court in the judgment entry found as follows:

“This cause having heretofore been heard upon the pleadings and evidence and submitted to the court, the court upon consideration thereof finds the issues joined in favor of the plaintiff and that the facts stated in her amended petition are true. ’ ’

This language is not ambiguous, and embraces with certainty a finding for plaintiff on her claim for quantum meruit, as well as upon other issues.

There is no rule which authorizes a reviewing court to reverse a judgment simply because the court which rendered it erred in a matter of law or logic. Section 11364 G. C. provides :

“In every stage of action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. No judgment shall be reversed, or affected, by reason of such error or defect. In the judgment of any reviewing court upon any petition in error in any civil action, when it is sought to reverse any final judgment or decree, or obtain a new trial upon the issues joined in the pleadings, such reviewing court shall certify on its journal whether or not in its opinion substantial justice has been done the party complaining, as shown by the record of proceedings, and judgment under review. In case such reviewing court shall determine and certify that in its opinion substantial justice has been done to the party complaining as shown by the record, all alleged errors occurring at the trial shall by such reviewing court be deemed not prejudicial to the party complaining and shall be disregarded and such judgment or decree under review shall be affirmed or it shall be modified if in the opinion of such reviewing court a modification thereof will do more complete justice to the party complaining.”

The questions therefore for this court are: has substantial justice been done; and are the conclusions ultimately reached, regardless of the reasons given, substantially correct?

Following, as we think, the letter and spirit of the section quoted a majority of this court are constrained to affirm the judgment below and to answer these questions in the affirmative.

We have reached this conclusion after careful consideration of all the evidence in the case. Mrs. Sellers under the statute was incompetent as a witness, and her daughter, Mrs. Blaesi, was the only witness to the conversation which took place between Mr. Yan Wormer and Mrs. Sellers at the time the contract was made. She testified that Mr. Yan Wormer said:

“He wanted my mother to take care of him. Oome out there and take care of him, and do for him and Aunt Julia as long as they lived; that if they did this, at his death she would' be rewarded, and he knew that she could do anything for him, and that she would be satisfactory in every way, and he would satisfy her in return by giving her at his' death enough to keep her the rest of her life without doing any work. So mama came, and I am not quite sure about the date, but I think it was along about the eleventh of April that mama and I went there and took charge of Aunt Julia and Uncle Asa in his home. * * * so he said if she would remain and do for him, at his death she would get stocks or bonds that would yield an income from $150 to $200 a month, if she would stay and take care of him.” (Bill of Exceptions, pages 8 and 9.)

This evidence is corroborated by the testimony of James Yan Wormer and Mrs. Atherton as to what Mr. Yan Wormer had told them as to his arrangement with Mrs. Sellers and what he had agreed to do in conformity, thereto, and is not disputed by a word or circumstance in the record. The conversation detailed by James Yan Whrmer, and found on pages 85, 86 and 87 of the bill of exceptions, shows that the old gentleman at that time (August, 1907, one. month before the execution of the unattested codicil) recognized an indebtedness to Mrs. Sellers, and contemplated making some arrangement by which she would receive at his death $50,000 from his estate for her services performed and to be performed.

Within fifteen months from the date of her employment he had made provision for her in his will to the extent of $8,000 and had given her a $1,000 bond. At that time he was seventy-eight years of age. He outlived his expectancy, and it is not likely that he then expected to live to be ninety years of age. While the bequests and the gift inter vivos thus made can not be taken as absolute proof of the value of her services, they show that the old gentleman recognized the extraordinary nature of her labors and did not measure the value thereof by the usual standards or by any prevailing rule or custom. The evidence shows that these bequests were made in compliance with his agreement or promise as testified to by Mrs. Blaesi, and when we, witness them, made, as they were so shortly after she entered upon her work, it serves to remove any feeling of surprise or doubt as to his purpose expressed nine years later to give the $37,500 worth of bank stock in further payment under his contract.

The record shows further that Mrs. Sellers knew of each of the testamentary bequests made for her at the time or soon after they were made. She objected strenuously to them as being inadequate and not a fulfillment of his promise or of the contract of employment. What did he say or do ? Did he deny the agreement as she claimed it existed? No. On the contrary he gave her bonds, stocks, and made codicils in an effort to satisfy her, but to no avail. There was constant trouble about it. He may have thought her demands were unreasonable or exorbitant, but she insisted that he had not kept faith and at one time left him, removing her furniture and apparel to the city. He soon after induced her to return. Her services were apparently considered by him as almost if not quite indispensable. There were quarrels, a fight and much domestic turmoil in the household up to the time that the paper of September 16, 1907, was signed. The record is silent as to any trouble afterwards and the inference follows that both parties looked upon that paper as a settlement of the difficulty. The amount named therein was less than that fixed by him in the conversation with his friend a month before. It must be accepted as his estimate of what his agreement, made in 1897 and since recognized by him-, required him to do. We can not see how any better evidence could have been offered as to the value of her services, and as to its admissibility for such purpose there can be no doubt.

Plaintiff below was not required to offer opinion evident as to the value of the services. He expressly agreed to provide liberally for her, insuring an income sufficient to meet her needs. This promise, together with the unusual and diversified duties of her employment, its uncertain duration, the postponement of payment until his death, all make obvious the futility of such evidence in this case and the reason same was not offered. Evidence as to the nature of the services was evidence of their value. It is not necessary in a suit on a quantum meruit to offer more. McIntyre v. Garlick, 4 Circ. Dec. 429 (8 R. 416); Duhme Jewelry Co. v. Hazen, 27 O. C. C. 679 (6 N. S. 606).

The amount claimed in the amended petition is $28,921 with interest. This sum was arrived at by charging for the number of days from April 13, 1897, until August 11, 1909, to-wit, 4503 days, at seven dollars per day, and crediting thereon the sum of $2,600 which Mrs. Sellers had received in cash on account during this time.

On December 14, 1898, Mr. Van Wormer made a codicil to his will by which he gave to Mrs. Sellers United States government bonds of the face value of $7,000. This codicil expressly provided that this bequest was made in consideration of her services in keeping house for him and that it was to be paid to her upon his death in the event that she remained with him until that time. This codicil' was afterwards revoked or became inoperative for the reason that the bonds named therein were about to be called for redemption, and on May 25, 1907, in lieu thereof he entered into a trust arrangement by which he placed said bonds in care of the Third National Bank of Cincinnati, Ohio, with power to reinvest the amount received for such bonds in other bonds of the United States or of the city of Cincinnati.

Under the powers contained in said deed of trust the trustee at the maturity of the United States bonds surrendered the same and reinvested the proceeds in Cincinnati viaduct bonds to the amount of $7,000, and one United States 3 per cent coupon bond in the sum of $100, and held the same until a f'ter the death of Asa Yan Wormer, and until February 7, 1910, when the said trustee transferred and delivered said bonds to Mrs. Sellers.

The trust instrument above referred to contained a copy of said codicil of December 14, 1898, and expressly recited that the trust was created for the purpose of carrying out the said bequest, and as á payment to Mrs. Sellers for services which she had rendered and might render in the future.

Under these circumstances we think that the sum of $7,100 heretofore received by Mrs. Sellers should have been credited upon said account presented to the executor as aforesaid, and the same not having been done, it should now be considered as a credit upon said account in the same manner as the item of $2,600 deducted therefrom by claimant. This reduces the claim of defendant in error to $21,821 and the judgment of the court below should be modified to the extent that it is in excess of this amount.

Plaintiff is entitled to recover the said sum of $21,821 with interest from August 11, 1909.

Judgment affirmed as modified.

Swing, J., concurs.

Jones, O. B., J.,

dissenting.

The original petition in this ease was the usual one for services on quantum meruit. It was superseded by the amended petition which still embodied’ all that was contained in the original petition, setting up plaintiff’s claim under an implied contract and then proceeding further sought in payment for the same services to show an express contract for the transfer and delivery of certain bank stock, and prayed in the alternative, first, for the delivery of that stock; or, if that could not be had, for a judgment for the value of the stock; and if that could not be had, for the value of the services rendered on a quantum meruit.

It will be seen that the new matter in the amended petition is not in explanation or in furtherance of that contained in the original petition, but is actually inconsistent with it. If plaintiff had an express contract for this bank stock in payment for her services, she had no implied contract for seven dollars per day, or whatever their value might be. In Creighton v. Toledo, 18 Ohio St. 447, 451, the first paragraph of the syllabus is as follows:

“Where there is an express contract between parties, none can be implied. The maxim expressum facit cessare taciturn applies in such eases.”

And on page 451, in its opinion, the court says:

“The plaintiff’s right to recover is not founded upon a quantum meruit, but solely upon an express contract, which provides a stipulated mode of payment, and thus excludes the idea of a recovery upon an implied assumpsit. When there is an express contract between parties, none can be implied; the maxim expressum facit cessare taciturn applies in such cases.”

And in Crist v. Dice, 18 Ohio St. 536, 542, in the opinion of the court the following language is used: “No implied obligation inconsistent with the actual agreement can arise,” etc., *. # * “for expressum facit cessare taciturn.”

The allegations of the express contract and the implied contract in the same petition are inconsistent. They are in no sense the same, but are repugnant to each other. They> do not constitute two separate causes of action, but are two distinct causes of action pleaded together in the alternative, and relief under one cause of action would prevent the obtaining of it under the other. Plaintiff being uncertain as to which cause of action she might be able to prove and maintain, out of abundance of caution pleaded them both in the one amended petition. And they were both met by distinct denials.

As to the cause of action under the unexecuted codicil for an express consideration, the defendant interposed the bar of the statute both that the action had not been begun within six months after its rejection under Sec. 10722 G. C. nor within two years after the appointment, under Sec. 10746 G. C.

I concur with the majority of the court that these sections both constituted a complete bar. Shahan v. Swan, 48 Ohio St. 25 [26 N. E. Rep. 222; 29 Am. St. Rep. 517]; Delaplaine v. Smith, 38 Ohio St. 413; Pollock v. Pollock, 1 Circ. Dec. 410 (2 R. 140).

The only recovery would, therefore, be sustained under an implied contract, as set out in the original petition.

In my opinion there was no consideration given by the court below to the claim under the implied contract, nor any determination by it as to the value of the' services rendered or the amount which plaintiff was entitled to receive for same. On the contrary, the court below found that plaintiff was entitled to recover as damages the value of the bank stock which had not been delivered to her in accordance with the agreement which she was barred by the statute from setting up in this case. To my mind this is clear from the words alone of the judgment, and becomes doubly so when we refer to the language of the court below in its opinion as reported in Sellers v. Sayler, 24 Dec. 441 (14 N. S. 1). The judgment below was based upon the finding of the court made in the following language:

“This cause having heretofore been heard upon the pleadings and evidence and submitted to the court, the court upon-consideration thereof find the issues joined in favor of the plaintiff, and that the facts stated in her amended petition are true.
“The court further find that the estate of Asa Van Worm-er is liable in damages for the value of the stock delivered, to the plaintiff in accordance with the agreement in the amended petition, the sum of $35,250 and that the plaintiff is entitled to owing to the plaintiff from the defendant John R. Sayler, executor of the last will and testament of Asa Van Wormer, deceased, upon the cause of action set forth in the amended petition, the sum of $35,250 and that the plaintiff is entitled to have said sum paid to her out of the personal property belonging to the estate of the said Asa Wormer,” etc.
Surely this judgment must be read as an entirety, and it will not do to simply rely upon the general language of the first paragraph of the finding, and from it determine that the court below had necessarily found upon the claim based upon the implied contract for a quantum meruit.
It is true that the language states that the court upon consideration of the pleadings and the evidence “find the issues joined in favor of the plaintiff, and that the facts stated in her amended petition are true.”

If this language is to be construed as broadly as it has been by the majority of the court, then it necessarily means that the court below found that the express contract to pay bank stock for services had been established, and that the implied contract to pay the reasonable value for the same services had also been established. These two findings are absolutely inconsistent, and this is shown conclusively, to my mind, by the specific language which follows, wherein the court finds “that the estate of Asa Van Wormer is liable in damages for the value of the stock not delivered to the plaintiff in accordance with the agreement in the amended petition set forth, and that therefore there is justly due and owing to the plaintiff,” etc.

Construing these two paragraphs together shows specifically which one of the two inconsistent causes of action put in the alternative in the amended petition ivas found in favor of the plaintiff to be true. And the value of this stock, as fixed by the testimony of the witnesses, shown in the record, is the amount for which the judgment was entered.

In other words, the cause of action which has been barred is used as a basis for the foundation of the judgment below. While it is true that there is sufficient evidence shown in the record to have enabled a jury or court on submission to determine the value of the services rendered by plaintiff in her aetion on an implied contract for the value of such services, the record fails to show any consideration of that evidence for the purpose of fixing such value. It will not do to say that the unexecuted codicil furnishes in itself a basis of value, as we have seen, it is eliminated from the case by reason of the bar of the two statutes above mentioned except in so far as it might furnish evidence that the decedent recognized some obligation, whether as a legal liability or as a moral duty.

This paper is not contractual in its form, but is of a testamentary character. The record shows that testator was constantly considering how he should dispose of his large fortune, and it is but natural that plaintiff" should have been considered among others as well worthy of his benefaction. The testimony of James Yan Wormer as to his conversations with testator indicates that he was not considering the value of plaintiff’s services to himself, but rather undertaking to determine what portion of his estate he should bestow upon her, while making generous gifts to other individuals and to numerous charities.

The opinion of the court may be resorted to, to show what was adjudicated. Topliff v. Topliff, 4 Circ. Dec. 312 (8 R. 55).

In the syllabus of the opinion of the court below it is stated:

* * * “The compensation thus provided was larger than she could have expected on a quantum meruit.
* * “The agreement must be regarded as established and the estate as liable in damages for the value of the stock so promised, notwithstanding her mercenary motive, the excellent bargain she drove, and the defective character of the agreement upon which she relies.”

And in the body of the opinion, the following language is used:

“Except that the agreed compensation is large, and greater probably than could be given in an action for the reasonable value of such services, there would be little hesitation in finding the agreement to be as claimed.”

It therefore seems to me that the judgment below was based entirely upon a wrong hypothesis; that the court found an express contract and therefore gave no attention to any proof as to the value of services under an implied contract. And while it is the duty of this court, under Sec. 11364 G>. C. to “disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party,” I can not bring myself to believe that a trial based upon a wrong theory, wherein the real issue that can be determined by the court is disregarded, and a judgment rendered on an issue which can not under the law be considered, is one where the “substantial rights of the adverse party” are not affected, and this even though the amount of that judgment might possibly coincide with the amount which could have been rendered under an implied contract. It was certainly “the substantial right” of the defendant below to have the trial court consider and determine separately the only claim which plaintiff was entitled under.the law to submit to the court, viz.: the claim made under q-uantum meruit, and when the trial below consisted only of the determination of the claim under the express contract (which all the judges of this court agree could not be considered), it can not be said that “substantial justice has been done” to defendant.

The record shows that the plaintiff has rendered services to the decedent for which she should receive liberal compensation, and it would be unfortunate that the settlement of the estate should be unnecessarily delayed by the sending back of this case for retrial. But where the amount plaintiff may be entitled to receive as the value of the serviées rendered by her has, as I believe, not been considered or determined by the court below, it is, in my opinion, not the province of this court on error to take up that question and determine it from the record as though this were a trial court; nor is it correct for this court to now modify the judgment of the court below by fixing it at the amount claimed in the petition reduced only by the payments which have been admittedly received by plaintiff on account of her services.


text:
    WILLS.
    [Wood (6th) Circuit Court,
    October 28, 1911.]
    Wildman, Kinkade and Richards, JJ.

      Frank White (Admr.) v. John White et al.
    Determination as to Amount Widow of Deceased Son Should Receive Where Son Died Before Testator.
    Under the provisions of the will construed in this case, the widow of the deceased son is held to be entitled to receive the share which would have gone to the said son had he survived the testator, less the amount specially provided to be paid by her in the codicil appended to the will after the death of said son.
    [Syllabus by the court.]
    Appeal.

      Rheinfrank & Ohlinger and Edward Beverstock, for plaintiff.

      Edgar H. Johnson and Jos. W. Lane, for defendants:
    Cited and commented by the following authorities : Worman v. Teagarden, 2 Ohio St. 380; Fainter v. Painter, 18 Ohio 247; Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408] ; Richards v. Miller, 62 111. 417; Armistead v. Armistead, 32 Ga. 597; Defreese v. Lake, 109 Mich. 415 [67 N. W. Rep. 505; 32 L. R. A. 744; 63 Am. St. Rep. 584]; Gilmore, In re, 154 Pa. St. 523 [26 Atl. Rep. 614; 35 Am. St. Rep. 855] ; Bates v, Alexander, 127 Ala. 32S [28 So. Rep. 415] ; Grimms v. Harmon, 35 Ind. 198; Davis v. Taul, 36 Ky. (6 Dana) 51; Miller v. [Miller; 29 O. C. C. 451 (9 N. S. 242); Weston v. Wbston, 38 Ohio St. 473; Eby’s Appeal, 84 Pa. St. 241; Hochstein v. Berghanser, 123 Cal. 681 [56 Pac. Rep. 547] ; St. Mark’s Lodge afi F. & A. M. v. Darrow, 16 Dec. 120; Jones v. Lloyd, 33 Ohio St. 572; Reif v. Ulmer, 20 Dee. 342 (9 N. S. 234) ; Lincoln v. Perry, 149 Mass. 368 [21 N. E. Rep. 671; 4 L. K. A. 215] : Clark v. Hardwick Seminary (Tr.), 2 Giro. Dee. 87 (3 R. 152); Lester’s Estate, In re, 115 Iowa 1 [87 N. W. Rep. 654].

      Affirmed, no op., White v. White, 88 O. S. 589.

   RICHARDS, J.

This is an action brought for the purpose of obtaining a construction of the will of Henry Rudolph White, deceased. The will was executed on July 23, 1894, on which date the testator had five children then living. The will, after making various preliminary dispositions of property, contains the following clause:

“The remainder of my estate, real and personal, shall be divided equally between my children or their heirs share and share alike.”

One of the children of the testator by the name df Henry White died intestate on June 3, 1895, without issue, but leaving surviving him a widow, Rose White. On December 21, 1895, the testator, Henry Rudolph White, executed a codicil to his will, which codicil contains the following language:

‘ ‘ The sum of $88 lawful money of the U. S. bearing interest at 6 per cent, from the first day of July, 1895, till paid shall be paid to my daughter Carolina White, her heirs or assigns, out from the share of the inheritance of my son Henry White, deceased. The residue of said share shall be the only bequest to the heirs or assigns of said Henry White.”

Held: That under the terms and provisions of the will and codicil, the widow, Rose White, is entitled to receive the share which would have gone to her husband, Henry White, if he had survived the testator, less the sum of $88 and interest thereon as provided in the codicil.

This construction of the will is not changed by the extrinsic evidence offered. So much of that evidence as tends to show the situation, circumstances and condition of the testator and the natural objects of his bounty, is competent, the remaining portion of it we hold to be incompetent, and we cite the following cases: Lester’s Estate, In re, 115 Iowa 1 [87 N. W. Rep. 654]; Lincoln v. Perry, 149 Mass. 368 [21 N. E. Rep. 671; 4 L. R. A. 215]; Clark v. Hardwick Seminary (Tr2 Circ. Dec. 87 (3 R. 152).

A decree may be drawn construing the will in accordance with the views expressed in this opinion.

Wildman and Kinkade, JJ., concur.


author: HOUCK, J.

text:
    JUDGMENTS AND DECREES.
    [Morrow (5th) Court of Appeals,
    October 15, 1915.]
    Shields, Femeding and Houck, JJ.
    (Judge Ferneding of the 2nd district sitting in place of Judge Powell.)
    B. M. Meredith et al. v. Butler Manufacturing Co.
    Vacation of Joint Judgment Entered without Personal Representative of Joint Defendant Dying after Submission.
    The vacation of a joint judgment as to one of the joint judgment debtors vacates it as to all, where the subject-matter of the action is such that the plaintiff could not have prosecuted several actions; and a trial court in such a case, a prima facie case having been tendered, should grant a vacation as to all the defendants but suspend the order pending a new trial on the merits.
    [Syllabus by the court.]
    Error.

      Mitchell & Bruce, for plaintiffs in error.

      J. M. Schooler and Harlan & Wood, for defendant in error.
   HOUCK, J.

The plaintiffs in error have filed in this court a supplemental petition in error, alleging that since the trial of this cause in the common pleas court, and since the same was partly heard in this court, the plaintiffs in error, Sarah J. Huntington, as administratrix of the estate of R. N. McMahon, deceased, filed their petition in the common pleas court of Morrow county, Ohio, asking for a vacation of and suspension of a judgment formerly made and entered by said court in said proceedings below, and for leave to file answer therein, for the reasons set forth, and upon the grounds stated therein.

The common pleas court refused to grant the relief prayed for, but entered a judgment affirming the former judgment' of the court therein, save and except as to R. N. McMahon, and as to the judgment against him enjoined the plaintiff below from issuing an execution against or in any way attempting to collect said judgment, or any part thereof, from the estate of the said R. N. McMahon, deceased.

Plaintiffs in error claim that there is error in the record and proceedings in said common pleas court, in said supplemental proceedings, to their prejudice, in the following particulars, to-wit:

1. In refusing to vacate the judgment against all tho plaintiffs in error, the defendants below.

2. After vacating the judgment against McMahon, the court’s refusal to suspend the judgment against all of the defendants below, and set the cause down for trial.

3. The court’s refusal to permit the plaintiffs in error, the defendants below, to file an answer which contained two new and additional defenses.

4. Modification of the original judgment without a trial.

Upon these grounds the plaintiffs in error seek a reversal of the judgment below.

The original action out of which this proceeding arises was commenced in the common pleas court of Morrow county, Ohio, in December, 1909, by the defendant in error, the Butler Manufacturing Company, against the plaintiffs in error, A. E. Bell, R. N. McMahon, since deceased, and others.

The issue was duly made, jury waived, and the cause wns tfied to the court, and judgment rendered against the defendants below for $2650, with interest. A motion for a new trial was filed, heard and overruled, and error was prosecuted to this court, the petition in error alleging that after said cause was tried and submitted, R. N. McMahon, one of the defendants died on or about November 4, 1912, before the cause was tried in common pleas court, and before judgment was entered; that no suggestion of the death of said R. N. McMahon was made to the court, and no personal or legal representative of the decedent was made a party to the action, but the case was tried and a joint judgment rendered against said R. N. McMahon and the other defendants in said cause, after the death of said McMahon, and without his legal or personal representative being made a party defendant therein.

The petition in error came on for hearing in this court at the June term, 1913, and the above alleged error not appearing in the record, this court was without jurisdiction to hear and determine the same, and the cause was continued to give plaintiffs in error an opportunity to proceed under the provisions of Sec. 11631 G. C., or other similar provisions, to obtain their remedy.

This case is an important one, relating to questions of practice that are of vital importance to the bench and bar.

From an examination of the record wé find that the original suit upon which this proceeding is based was founded upon a joint contract, and the judgment rendered therein in the trial below was a joint judgment, and therefore the only question presented to this court for determination is, Does the vacating of a joint judgment against one defendant and joint judgment debtor vacate it as to all?

Section 11631 G. C. provides:

“The common pleas court, or the circuit court, may vacate or modify its own judgment or order, after the term at which it was made: * * *
(6) For the death of one of the parties before judgment in the action.”

Under this section, and Secs. 11636 and 11637 G. C., the successive steps required to vacate a judgment after term are as follows:

“1. An application filed in the original case, stating the ground of vacation and the defense, upon which summons shall issue, and no further pleading^ is required.
“2. Hearing on the application. ,
“3. If ground for vacation is found to exist and a valid defense is averred in the application, the judgment shall be vacated, but the lien of the original judgment saved by suspending the order of vacation pending trial on the merits.
“4. A pleading setting up a defense, and a trial upon the issues made, as if no judgment had been rendered.
“5. The rendering of a judgment which shall either restore the old judgment or extinguish it, as the facts found on the trial demand.”

In determining whether there is error in this record it is proper to inquire as to whether or not the plaintiff in the original action below could have maintained a separate action on the contract against each of the obligors, had they elected so to do, or was their sole remedy on the contract against them jointly?

There can be little doubt that the eases wherein it is proper Lo render a several judgment against one or more of the defendants in the suit, thereby leaving the cause to proceed against the others, are limited, as a general rule, to certain actions. The difficulty, however, is in determining whether these cases wherein such judgment is forbidden includes actions on joint and several contracts, on which the plaintiff might have elected to prosecute several actions. Some courts have held that they are confined to actions on joint contracts, when the plaintiff had no election as to the joinder of defendants, and therefore was compelled to bring a joint suit, and that his only remedy was such; others have held the contrary to be the rule.

We think that See. 11584 G. C. will materially aid us in the proper determination of the question before us. The section provides:

“In an action against several defendants the court may render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper.”

A fair construction^ of this statute, with the’ facts presented in this case, and applying thereto what seems to us to be the rule of law applicable to the same, should aid us in reaching a proper conclusion. A court in its discretion may render a judgment against one or more of the defendants, leaving the action to proceed against others, whenever it appears that the plaintiff might have demanded a several judgment on the contract if he had elected to sue the defendants separately. On the other hand, if the subject-matter of the action is such that the plaintiff could not have prosecuted several actions, then and in that event his only remedy would be to demand a joint judgment, and in a joint action, and in such case he cannot have a several judgment against any of the defendants until the liability of each and all of the defendants has been determined upon final trial of all the issues in the case.

In the case at bar the vacating of the judgment against one of the plaintiffs in error, the defendants below, thereby vacated it as to all. This being so, and ground for vacation having been found to exist, and a pHma facie defense having been tendered by the plaintiffs in error, the defendants below, the judgment as to all of them should have been vacated, and the order of vacation suspended pending a trial on the merits.

The judgment is reversed, and cause remanded to common pleas court for a new trial.

Shields and Ferneding, JJ., concur.


text:
    ERROR — ESTOPPEL—NEGLIGENCE.
    [Holmes (5th) Court of Appeals,
    November 1, 1915
    Shields, Powell and Houck, JJ.
    Robert S. Torbet v. Nora Young.
    1. Party Estopped on Error First to Complain of Trial of Issue for Money Only without Jury.
    Where so far as the record discloses, a party sat by in silence and permitted an action for money only to be tried without the intervention of a jury without interposing an objection thereto, he is estopped from complaining for the first time in a court of review that he was prejudiced thereby.
    2. Bailee Loaning Money to Stranger on Unrecorded Deed with Abstract of Perfect Title, Guilty of Gross Negligence and Liable for Full Loss on Forgery of Deed Shown.
    An agent or bailee, serving without pay, made a loan on farm property to a stranger the title whereof was shown by an abstract to be perfect in the grantee of the borrower, who exhibited an unrecorded deed to the property which was placed on record before the loan was consummated. The deed proved to be a forgery, and the owner of the funds loaned brought an action against the party who acted for her in making the loan for the amount of her loss. Held:
    The making of the loan to a stranger, without further inquiry than as to the validity of the title in his grantor, was gross negligence, and plaintiff is entitled to judgment for the full amount of the loss.
    [Syllabus by the court.]
    Error.

      Taggart & Ross and N. Stilwell, for plaintiff in error.

      C. R. Cary, for defendant in error.

   HOUCK, J.

This is a proceeding in error seeking to reverse a judgment of the court below in a suit in which the present defendant in error, Nora Young, was plaintiff, and the plaintiff in error, Robert S. Torbet, was defendant. The petition of the plaintiff below is as follows:

“Plaintiff in her petition avers that some time prior to the fourteenth day of October, 1910, the defendant was employed as the agent of plaintiff to obtain and make for plaintiff safe' loans secured by mortgage on real estate of which plaintiff had knowledge in the vicinity of defendant’s home in Ripley township, Holmes county, Ohio, and on or about September 12, 1910, the defendant received from plaintiff about $2800 in money to be held by him in trust for plaintiff, and to be used by defendant for said purposes, and for no other purpose; that defendant has failed and refused to comply with and carry out the terms and conditions of said agency and trust, and refused to account for said money on demand, and prays for an accounting and for judgment for the amount found to be due, and for other relief, and for costs.”

The defendant below filed an, answer setting j.orth two defenses, the first defense being a general denial and the second defense being in substance as follows:

“That on or about September 10, 1910, and for a long time prior thereto he received from plaintiff divers sums of money and at her request made loans and investments in her name; that on or about September 12, 1.910, he received $2800 for said plaintiff, and informed her of the fact, and at her request retained said money, to be loaned and invested for her; that he loaned said money to one William Hoover who represented himself to be the owner of a farm of ninety-seven acres situated near the village of Dalton in Wayne county, Ohio; that Hoover executed his promissory note for $2800 with interest at six and one-half per cent due in three y.ears and his mortgage deed conveying said farm to plaintiff to secure said'note, and delivered said note and mortgage to defendant, and that said defendant placed said note and mortgage with other papers and evidences of indebtedness belonging to plaintiff, which were deposited in the Farmers’ Bank at Shreve, Ohio; that all of said defendant’s acts relating to the loaning of said money were in good faith, without compensation and wholly gratuitous, and that in all of his acts pertaining thereto he exercised reasonable care and prudence.”

The answer further alleges,' and in detail, that notwithstanding the fact that it was afterwards learned that the deed to said ninety-seven acre farm upon which said $2800 loan was made had been forged by said Hoover, and although Hoover had not the legal title to said farm, yet said loan having been made in good faith, and he (Torbet) having exercised reasonable care and prudence, prays to go hence without day.

A reply in the nature of a general denial was filed by plaintiff below to this answer, and upon the issue joined the case was submitted to the court upon the evidence, without the intervention of a jury. The record is silent as to anything relating to the submission of the cause to a jury. The court found for the plaintiff below in the sum of $2800 with interest from October 14, 3 D10. The plaintiff in error seeks a reversal of this judgment upon two grounds: First, that the cause being one triable to a jury the court below erred in permitting the same to be tried without the intervention of a jury. Second, that the judgment is manifestly against the weight of the evidence and is contrary to law.

Proceeding now to the alleged errors let us first determine whether or not the action at bar is for the recovery of money only. This must be determined from the language of the petition and the relief sought therein. Without discussing the question further we think the allegations of the petition constitute a cause of action for the recovery of money only which, therefore, is triable to a jury. Having arrived at this conclusion the next inquiry is, Have the rights of the plaintiff in error been prejudiced by the court trying the case and rendering a judgment without a jury having been first waived? The record shows that both parties appeared and without objection o'r question as to the light of the court to try and determine the cause submitted the same to the court, and the first objection in that regard is made in this court. No question is made here that the court below was without jurisdiction to hear and determine the rights between the parties, but it is claimed that being an issue triable by jury that it could not be tried by the court without a waiver by the parties of a jury, and there being no waiver by the parties of record the judgment should be reversed.

So far as appears from the record here presented the defendant below preferred to have the case tried to the court and not submitted to a jury; he made no demand for a jury trial; he sat by in silence and permitted a trial to the court without interposing any objection thereto, and made none until after the issues were found against him, and he certainly is now estopped from making any such claim. We think the rule of law here laid down is well established in Ohio, and we need refer to but two cases: Bonewitz v. Bonewitz, 50 Ohio St. 373, 377, 378 [34 N. E. Rep. 332; 40 Am. St. Rep. 671], where the court say:

‘ To submit a cause to a court is an affirmative act. It .is to ask the court to hear the evidence, consider it, and apply the law. What more potent ‘consent’ could be given than this? A jury was not demanded because, in all probability, the counsel and the court alike regarded it as a court, and not a jury, case. * * But actions sometimes speak louder than words. It was not until after the court had found and adjudged against the defendant that he discovered he had been prejudiced by not having his cause tried to a jury. His objection to the mode of trial, we think, comes too late. To sustain his claim would seem to be trifling with justice. He proceeded to trial, without objection, to a court having jurisdiction of the parties, and capable of being clothed with jurisdiction of the subject-matter for all purposes, taking his chance of a favorable result, and cannot, now that the chance is turned against him, be heard to question the authority of the tribunal to which he consented to submit his cause. ’ ’

And also the case of Lingler v. Wesco, 79 Ohio St. 225 [86 N. E. Rep. 1004; 21 L. R. A. (N. S.) 182; 128 Am. St. Rep. 714], where the court say:

“Therefore it appears that no one objected to the court hearing the evidence and passing upon it. No one asked for a jury, but the parties proceeded with the submission of the case. The condition of the record here warrants the use of the rule established in Bonewitz v. Bonewitz, 50 Ohio St. 373. A party may waive his right to a jury trial by acts as well as by words. ’ ’

Coming now to the second ground of alleged error, namely, Is the judgment manifestly against the weight of the evidence and contrary to law? Counsel for plaintiff in error contend that the said plaintiff in error occupied the position of agent or bailee of the defendant in error, without pay, and being a gratuitous agent or bailee could only be held liable for acts of gross negligence. Admitting that to be the law do the facts in the case at bar as disclosed by the record, and applying thereto the well established elements necessary to constitute gross negligence, warrant the finding of this court that the plaintiff in error was guilty of gross negligence; or did Re, under all the circumstances and surroundings, act and do in the premises and exercise such care as a person of common prudence should have done? Counsel for plaintiff in error inquire, “What could Torbet have done that he did not do to be more careful in negotiating this loan? He was informed by Judge Weiser of the character and value of the land; he acquired an abstract of title which, showed the title to be perfect; he insisted that the abstract be made by attorneys in whom he had confidence and who had been attorneys for Mrs. Young in her claims and partition suit; he saw the note and mortgage signed; took it to the recorder’s office and had it recorded; saw that Hoover had the deed transferred at the auditor’s office and duly recorded, and retained the abstract in his possession, placing the note with the rest of Mrs. Young’s papers.”

We think these inquiries would be pertinent if the loan that Torbet was about to make for Mrs. Young was being made to the Mosers, the alleged grantors in the deed to Hoover, but the loan was being made to Hoover, and it seems to the court that the real foundation or basis o'f the loan was the strength of the title in William Hoover. The loan was being made to him, and Torbet’s inquiries and investigations should have at least been directed as to the title in Hoover. Hoover was a perfect stranger, and we might ask, what inquiry did Torbet make as to him? Not any! What inquiry, if any, did any of the persons in interest make as to the standing, honesty or integrity of William Hoover? Not any! A stranger, unknown to Torbet or any one connected with the transaction was entrusted with the duty of seeing that the deed from Moser to him was properly executed — which afterwards proved to be a forgery. Hoover stated that he was a widower, and without any inquiry on the part of Torbet to ascertain as to the truthfulness or untruthfulness of that statement he was permitted to sign the mortgage alone, and received the $2800 from Tor-bet. Without any acquaintance with or knowledge of Hoover on the part o'f Torbet prior to this transaction he assigned the $2800 certificate of deposit over to him, and at least stood by and saw him receive the money from the bank on this certificate of deposit. All of this was done with á stranger; no one had recommended him to Torbet, and so 'far as the record shows he made no inquiry concerning Hoover. What inquiry did Torbet make of the grantors in the deed, or of the witnesses to it, or of the notary who was reputed to have acknowledged it? Not any! In the face of these facts can it be properly claimed that plaintiff in error exercised that care and prudence required of a gratuitous agent or bailee? Certainly not. What constitutes gross negligence has been defined by our Supreme Court in the ease of Johnson v. State, 66 Ohio St. 59, 67, 68 [63 N. E. Rep. 607; 61 L. R. A. 277; 90 Am. St. Rep. 564], where the court say:

“Negligence may consist of acts of omission as well as commission, and what may be mere ordinary negligence under one class of circumstances and conditions may become gross negligence under other conditions and circumstances. Negligence is the failure to exercise ordinary care. Gross negligence may consist in failure to exercise any or every slight care. There are other definitions, but these are sufficient now for our purpose. So we may truly say that negligence differs only in degree. With this, we cannot overlook what experience has taught for many years: that what may seem ordinary negligence when contemplated by one mind may be regarded by another as very gross negligence. The inferences drawn from the same facts by different minds may often greatly differ.”

Applying this rule of negligence to the facts in the present case the plaintiff in error certainly was guilty of such negligent acts of omission as well as commission as would not justify a reversal of the judgment below. We think the claim made by the plaintiff in error is untenable, and finding no error in the record prejudicial to the rights of plaintiff in error the judgment of the common pleas court is affirmed.

Shields and Powell, J.J., concur.