text:
    In re Estate of Stevenson.
    (No. 3918
    Decided October 4, 1946.)

      Mr. R. W. Kilbourne, for appellee.

      Mr. C. Russell Younger and Mr. Harry L. Margulisr for appellants.
   Miller, J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin county on exceptions, filed to the inventory and appraisement of the estate of Mae Stevenfon, deceased, by Everett O. Newman, one of the coexecutors who claimed to be the owner of certain personal property consisting of stocks and bonds which had been included as a part of the inventory and appraisement and a part of the assets of the estate of Mae Stevenson.

The trial court sustained the exceptions and ruled that the exceptor was the owner of the personal property claimed by him and included as a part of the assets in the inventory and appraisement filed in the estate, finding that the property had been the subject matter of a gift by the decedent to the exceptor.

The question in dispute herein is whether the exceptions to the' inventory and appraisement shall be sustained. The error assigned is that the finding of the Probate Court is not sustained by the evidence and is contrary to law.

The following facts were stipulated by and between counsel for all the parties and with the approval of the court:

That Mae Stevenson, deceased, during her lifetime rented a safety deposit box at the Huntington National Bank in Columbus, Ohio; that. Prank S. Graves was, on or about the 19th day of May, 1945, duly appointed and qualified as guardian of Mae Stevenson; that upon the first examination of the contents of the safety deposit box he found a sealed envelope, upon the face of which was written the following language — -“All of the contents of this envelope belongs to Everett O. Newman” — signed “Mae Stevenson”; and that in addition to the writing above set forth on the envelope there was attached to the outside of the envelope a note which reads as follows: “Everett’s sister, Mrs. Walker Stansbury, 1309 Holley street, Dayton 10, Ohio. In case of my death turn this over to his sister, above address,” signed “Mae Stevenson.”

. The contents of the envelope were as follows:' A number of gold debenture bonds, payable to bearer; certain shares of common stock issued in the name of Mrs. Mae Stevenson and endorsed “Mae Stevenson” in the presence of a witness, not dated and in blank. Attached to those shares was the following: “Everett: if anything happens to me take this to Clark Burt at Yercoe and have him transfer it to you: I am giving it to you now three-sixteen-forty-four,” signed “Mae Stevenson.”

Also in the envelope there were found three City Service Company bonds payable to bearer. Attached to those bonds was the following: “$300. This is the property of Rose Riley, 143 Woodrow avenue. Everett if I do not need any of this to pay my last bills will you see that Rose gets it; it is the same as money.” Signed “Mae Stevenson.”

It was stipulated further that Everett O. Newman and Frank S.-Graves were authorized by the deceased to enter the safety deposit box; that neither of them ever at any time entered the box for any purpose whatsoever; and that the last entry in the safety deposit box was made by the deceased on or about the 16th day of March, 1944. There were numerous other envelopes found containing stock certificates and personal property with statements designating others as being the owners, but the ownership of which property is not involved in this action.

It was stipulated and agreed further that all writing contained on the envelope and other slips of paper and purporting to be the signatures of Mae Stevenson are her genuine signatures.

• Kathleen Preston who was called as a witness testified that Mae Stevenson, deceased, gave to Everett O. Newman on the-day prior to the appointment of the guardian, a key to her safety deposit box with instructions to go “and. get what was his out of her lock box.”

The trial court held that the record was sufficient to show that there was an intention of Mae Stevenson to give the property under consideration to Mr. Newman and that the, giving of the key and acceptance of the same by Mr. Newman constituted a delivery and acceptance. The court points out. that had she died before delivering the key to Mr. Newman her whole plan would have had no legal effect.

Perhaps the most extended and comprehensive definition of the necessary elements to constitute a completed gift inter vivos is found in the case of Flanders v. Blandy, 45 Ohio St., 108, 12 N. E., 321, where it is said:

“A gift inter vivos has been defined as an immediate, voluntary and gratuitous transfer of his personal property, by one to another. It is essential to its validity that the transfer be executed, for the reason that there being no consideration therefor, no action will lie to enforce it. A gift inter vivos has no reference to the future, but goes into immediate and absolute effect. To render the gift complete; there must be .an actual delivery^of the chattel, so far as the subject is capable of such a' delivery, and without such a delivery the'title does not pass. If the subject be not capable of actual delivery, there must be some act equivalent to it. ‘The necessity of delivery,’ says Chancellor Kent, ‘has been maintained in every period of the English law.’ The donor must part not only with the possession, but with the dominion and control of the property. An intention to give is not a gift, and so long as the gift is left incomplete, a court of equity will not interfere and give effect to it. ’ ’

“Gifts inter vivos, like gifts causa mortis, are watched with caution by Ihe courts, and to support them clear and convincing evidence is required.” Flanders v. Blandy, supra, at page 113.

Counsel for appellants refer to the case of Bolles v. Trust Co., 132 Ohio St., 21, 4 N. E. (2d), 917, to support their contention. The facts in that case disclose that George A. Bolles and Clara C. Bolles were husband and wife and that they rented a lock box in the name of the corporation which they controlled and to which both had access. The husband left certain securities in the box, and testimony was offered which would establish the fact that he had given those securities to his wife. The evidence disclosed that Mr. Bolles visited the safety box some 49 times between the time of its rental and his death, and that during the same period of time Mrs. Bolles visited it only on two occasions. On pages 28 and 30, the court said:

“The real stumbling block we meet in this case is the matter of delivery. Is there clear and convincing evidence of the delivery of the securities involved, with relinquishment of dominion and control over them? Where is the definite and tangible proof as to how, when and where any such delivery occurred? * * * Certain undisputed evidence in this case is indicative that there was no such delivery, including surrender of dominion, as the law demands. Among the indicia are the facts that the securities were contained in a box to which George A. Bolles had free access and to which he made frequent visits; that they were kept and found in a folder bearing his name or initials; that they stood in his name without .endorsement or assignment; that he exercised incidents of ownership in the manipulation of certain of the securities at different periods and that he collected the dividends and interest’ therefrom and deposited the same to his individual account in the bank. ’ ’

The facts in that case are different from those in the case at bar in that the donor at no time surrendered complete possession of the safety deposit box to the donee as in this case. One of the requirements to constitute a valid gift is the severance of all control or dominion, over the property. In the case'at bar we think that the evidence supported the finding of the trial court that Mae Stevenson released all her control over the property when she gave the key to the lock box to Everett O. Newman. The record does not- disclose that she was possessed of a duplicate key, and in the absence of such a showing the presumption is that she was not.

We find very similar to the case at bar, Rule v. Fleming, 85 Ind. App., 487, 152 N. E., 181, where the delivery to the donee by a donor who was about to undergo a serious operation, from which' she did not expect to recover and which proved fatal, of her duplicate key to a safe deposit box in a bank taken,in the names of the donor and donee, or survivor, was held to be sufficient delivery to constitute a valid gift causa mortis of the contents of the box. It was there said that the donor thereby had done all things which were necessary to invest the donee with the right and power to have exclusive possession of the property, and that nothing in this behalf remained to be done after the death of the donor.

In the case of Braun v. Brown, 14 Cal. (2d), 346, 94 P. (2d), 348, 127 A. L. R., 773, it was held, as. reported in paragraphs one and eleven of the headnotes appearing in 127 A. L. R.:

“1. The delivery essential to a gift of the contents of a safe-depósit box may be made by a transfer of the key; and the fact that there is a duplicate key is immaterial where such duplicate is locked in the box.”

‘ ‘ 11. The fact that one to whom another handed the key of a safe-deposit box with the statement, ‘everything in the box belongs to you,’ and who retained the key, did not use the key to take possession of the property before the death of the donor twenty days later does not make the gift ineffective for want of acceptance.”

Counsel for appellants cite the case of Gano v. Fisk, 43 Ohio St., 462, 3 N. E., 532, 54 Am. Rep., 819, to support their contention that the delivery of a key to a lock box does not constitute delivery of the contents. We do not believe the facts in that case are similar to those in the case at bar, they being as follows:

“2. Gr. was a man of advanced age, having a wife and daughters by a first wife, and, by the present wife, a son, with whom he boarded; his property consisted partly of a farm and stock thereon, but mostly of promissory notes of various amounts; before his last sickness he had expressed a desire ‘that his children should have his notes and his son should have his farm’; on the morning of the day of his death, and in the presence of a daughter’s husband, herself and a sister, Gr., called the daughter and said to her: ‘My notes are in a little box on the bureau there; I want you to take them and divide them equally among you, children.’ He told her to get the key to the box, and she got the key and tried it in the box, and gave the key to her husband for safe-keeping. After his death intestate, she took the box and did not divide the notes, but returned them to the administrator, and they were appraised and held as part of the estate. In an action by the daughters, claiming for themselves and the son, the notes and their proceeds, as against the administrator and the widow. Held: 1. These facts do not show such a delivery as constitutes a valid gift causa mortis. 2. These notes and their proceeds are assets of the estate, and the widow is entitled to her proper part thereof.”

In discussing the case, the court said, on page 472:

“Was she to collect the money due on the notes, and then divide the proceeds equally among them? If so, the gift was not complete, and no title passed. His death revoked the gift.

“Or was Mrs. Fisk to divide the notes into four equal amounts in value, and then deliver to each child a definite parcel of these thirty-eight notes? This was never done, and these notes, it seems, could not be so divided. So there never was a separation of the notes made so as to vest in each donee an ownership in particular notes.

“But, had the notes been so that they could be equally divided, how could the doubtful or worthless notes be disposed of? Who would take them? Or should she disregard them? Gano did not hand the notes to Mrs. Fisk, and say, ‘I give these notes to you four children’; neither did he say, ‘I give these notes to you children equally, one-fourth part to each.’ Something more must be done to complete the gift.”

The appellants are contending further that the key was given to Mr. Newman after the application for a guardian had been made and on the day before the actual appointment, and that since Newman had knowledge of the pendency of the guardianship, the gift was invalid under Section 10507-4, General Code. That section, after providing for the service to be made on certain individuals in the matter of the' appointment of a guardian, provides:

“From the service of such notice until the hearing, as to all persons having notice of such proceeding, no sale, gift, conveyance or encumbrance shall be valid, of the property of such incompetent, habitual drunkard, idiot, imbecile, lunatic or confined person.’’

It is true that section, would be a bar to a valid gift, provided Mr. Newman had knowledge of the pendency of the proceeding. We have examined the record carefully and find that Newman was told by Mr. Graves of the application being made for the appointment of a guardian, but the record is not definite as to when he acquired that information. If it was acquired after the presentation of the key, then the section would not apply. Since that information is not contained in the record, the section cannot be further considered.

We are in full accord with the findings of fact and conclusions of law as announced in the decision of the trial court, and the judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Wiseman, J., concur.


source: Caselaw Access Project

author: Sherick, P. J.

license: Public Domain

text:
    Heid et al., Board of Edn. of Lawrence Twp., Tuscarawas County, Appellants, v. Hartline et al., Board of Edn. of Tuscarawas County, et al., Appellees.
    (No. 744
    Decided December 10, 1946.)

      Mr. Clarence W. Ferrell, for appellants.

      Mr. Arthur B. Cunningham, prosecuting attorney, for appellees.
   Sherick, P. J.

The cause as tried in the Court of Common Pleas was a suit in equity for injunction. The matter, however, comes to this court as an action on appeal on questions of law. Only such portions of the facts as appear in the agreed statement of facts as are necessary to display the error complained of will be set forth.

The members of the board of education of Lawrence township, Tuscarawas county, sought to enjoin the board of education of Tuscarawas county from carrying out a plan of territorial reorganization of subordinate school districts within the county, which plan the county board had initiated, prepared and adopted under authority of Sections 4831 to 4831-14, inclusive, General Code. Appellants plead and contend that the proposed plan was from its inception and is illegal and void, and that the county board and the state Superintendent of Public Instruction were without power or jurisdiction to proceed thereunder. The question presented is dependent upon the construction of Section 4831-1, General Code, and an agreed fact. The section reads:

“The plan of organization adopted .by a county board of education shall be in writing and include the following:

“1. Definite and certain boundaries of any new school district to be created;

“2. Definite and certain boundaries of all territory to be transferred from one district to another;

“3. The number of pupils affected by each transfer of territory or creation of a new school district, showing:

‘‘a. The grades attended by such pupils ;

“b. The school district attended by such pupils.”

The pertinent agreed fact is that the adopted plan did not contain any reference or matter responsive to subsection 3, supra. Appellees excuse the omission first by a concession that the word, "shall," insofar as it applies to subsections 1 and 2, supra, imposes a mandatory duty upon the county board to embody the matters, of which subsections 1 and 2 treat, in any such plan of organization; but conclude that the word, "shall,” insofar as it relates to subsection 3, has the force and effect of the word, “may,” and is merely directory, that the county board, in the exercise of its discretion and judgment had authority to disregard such- provisions, and that observance of such- provisions is not necessarily decisive of the proceedings’ validity. Appellees’ claimed construction is rather startling. However, the claim is not without,partial precedent. Such a precedent is found in the early case of Howard v. Shields, 16 Ohio St., 184, 191, wherein, in an election contest, it was held that “such provisions may be considered directory for one purpose and vital for another.”

37 Ohio Jurisprudence, 325, Section 28, states, as follows, what this court considers to be the guiding rule in such cases :

"Whether a statute is mandatory or directory does not depend upon its form, but upon the intention of the Legislature, to be ascertained from a consideration of the entire act — its nature, its character, its reason, its object, and its subject-matter, as well as the language used.”

There exists another applicable rule of construction, which finds expression in State, ex rel. Myers, v. Bd. of Edn., 95 Ohio St., 367, 373, 116 N. E., 516, and other state Supreme Court cases, that, whenever the word “shall” or “may” is used in a statute and the rights and interest of the public or third persons depend upon the exercise of the power or the performance of the duty to which such word refers, it is to be construed as mandatory and not directory.

When such a word is employed in the granting of power and authority to an administrative body for the doing of certain acts, and the rights and interest of the-public hinge upon the performance by that body of certain directed requirements, compliance with such legislative direction is mandatory. Performance of such legislative requirements 'is in fact the foundation of such body’s power and authority to exercise jurisdiction over the subject matter on which the body presumes to act. If this were not true then such a body might as well be given carte Manche authority to exercise the power delegated in such fashion as it may deem expedient. This the General Assembly did not do.

It was intended by the enactment, of subsection 3, supra, that any such subsequently planned county school system, adopted and advertised, should contain the matters designated. It was not left to the county board to legislate or to conclude upon its whim that the matters and things contained in the statute were not necessary and purely surplusage. Had the plan adopted contained those figures it would have advised the various local boards and the electorate that certain grades in certain schools would have only so many pupils left, and that to maintain the grades would be inadvisable, or that a certain school had a teacher or a school room that it no longer needed. It would have further advised the local board and the electorate of an old or newly created district of changed financial needs; that certain schools, both old and newly created, would require additional teachers; and that new school rooms might become necessary, necessitating new structures, bond issues and increased tax levies. Surely that knowledge was of vital interest to the existing local boards and the county’s electorate.

It is the conclusion of this court, not only that the word, “shall,” is mandatory, as it relates to subsection 3, supra, but that compliance with its requirement was indispensable in the plan of county school reorganization in order to confer upon the county board power and authority to do the thing contemplated, which is tantamount to the conferring of jurisdiction over the subject matter of county school organization.

The trial court concluded that the word, “shall,” was mandatory, but that the appellants had waived the requirement, when they filed a remonstrance with the state superintendent after he had modified the plan and approved it as modified, for the reason that it did not set forth specifically therein objection to the plan’s omission. Examination of that document however, discloses that it specifically raises such issues as would have been disclosed had the county board complied with the requirements of subsection 3, supra. It is observed that Section 4831-3, General Code, provides only for protest by the electorate to the county board; and that a local board’s first opportunity to object to the plan is conferred by Section 4831-8, General Code, which objection is to the state superintendent after modification of the plan by him. Inasmuch as the state superintendent had denied a hearing on appellants’ filed objections, the trial court held that the county board’s subsequent actions, furnishing of maps to the county auditor for tax purposes, allocation of future tax collections and adjustment of outstanding indebtedness, were premature, but in the judgment entry those matters were left for subsequent correction. So stands the record.

It is the conclusion of this court that- the trial court was wrong in its conclusion on the question of waiver and in its conclusion that the proceedings might subsequently be corrected. It is elemental that jurisdiction of the subject matter of any court or any administrative body can never be waived. A question as to such jurisdiction may be raised and asserted at any stage of a proceeding. The principle is so well settled that citation of authority is definitely unnecessary. Jurisdiction over the person, which may always be waived, is subject to entirely different rules. Estoppel cannot accomplish a waiver of jurisdiction of subject matter.

The requirements of Section 4831-1, General Code, not having been complied with, the county board, was without authority, power and jurisdiction to adopt or promulgate the plan. The act in so doing was illegal and void from its inception, as were the acts of the state superintendent in respect thereto. This court holds, as was held in Anderson v. Bd. of Edn., 137 Ohio St., 578, 31 N. E. (2d), 850, that “the county board of education has no power to modify or change a plan of organization previously adopted except in the same manner provided for its adoption.”

The decree of the trial court in the respects noted must be reversed and injunction is allowed as was prayed for.

Decree reversed.

Putnam and Montgomery, JJ., concur.


author: Stevens, J.

text:
    Collins, Appellant, v. Collins, Appellee.
    (No. 1096
    Decided February 26, 1947.)

      Mr. Robert Merkle, for appellant.

      Messrs. Myers, Mills, Boesch & Cline, for appellee.
   Stevens, J.

On May 29, 1928; Robert Collins filed an action for divorce against Ms wife, Ethel, Collins, in the Court of Common Pleas of Wayne county, Ohio.

That action came on to be heard, and on July 29, 1929, a decree of divorce for plaintiff was entered on the journal of said court. That decree provided in part as follows:

“* * *. It is further ordered that the care, custody and control of said children be vested in the defendant until further order of the court.

“It is further ordered that the plaintiff pay to the clerk of this court on or before the 15th day of August, 1929, the sum of $52.50, and on or before the -1st day 'of September, 1929, the sum of $52.50, and on or before the 1st and 15th day of each month the sum of $22.50; i. e., the plaintiff shall pay to the clerk of this court the sum of $22.50 for the support of said children, every two weeks, payable on the 1st and 15th day of each month until further order of this court.” -(Italics ours.)

Nothing further appears on the transcript of docket and journal entries until, May 31, 1946, when the following entry appears (the transcript erroneously shows the entry to have been filed May 13, 1946):

“The court being fully advised in the premises finds that a decree of this court was entered on July 29,1929, allowing an alimony judgment to be made in installments, and the court now finds that there is due and owing on said decree the amount of $7,427.60 and $-costs.

“Wherefore, the court grants leave to the defendant, Ethel Collins, to have a certificate of judgment issued in the amount of $7,427.60 and $-costs.”

On August 31, 1946, appellant filed his motion to vacate said purported judgment of May 31, 1946, for the following reasons:

“First: He was not served with summons or any other process or notice of the hearing nor did he have any actual notice or-knowledge whatsoever of said hearing of May 31,1946.

“Second: Said judgment was based on an order made on or about August 15, 1929, for the support of children then minors and that there are defenses available to mover which he should be permitted to set up, and which he had no opportunity to bring to the attention of the court because of lack of notice of said hearing.

“Third:- The court was without jurisdiction to enter judgment on said order after the lapse of. over sixteen years without notice to the plaintiff.

“Fourth: Said judgment having been entered without service upon the plaintiff is a nullity.

“Fifth: Said judgment if permitted to stand will do irreparable damage to the plaintiff.”

Proof of service of said motion and notice was duly made by appellant.

Upon hearing of said motion to vacate, the same was overruled, as follows:

¡ t ft ft ft

“The court on due consideration finds that the decree made and entered on July 29, 1929, was a valid decree signed by the judge and counsel for both plaintiff and defendant; and that said decree provided on the record of this court for the three minor children and constituted a valid and continuing judgment against the plaintiff for the amount specified therein; and that the amount of $7,427.60 showing in said decree as entered on May 31, 1946, was the amount then appearing due and unpaid on the records of the clerk of this court, the medium through which said payments were to be made; that said decree operates as a judgment lien for the support of the minor children and is a continuing and subsisting lien against the plaintiff which does not become dormant and may be enforced by execution at any time, and that by reason thereof no notice to the plaintiff was necessary to give the court jurisdiction to make the summation and to-baling of the balance due on May 31, 1946, on said original decree.

“It is, therefore, considered, ordered and adjudged that the motion to vacate and set aside the entry of judgment of May 31, 1946, be and the same is hereby overruled.

“It is further ordered that the plaintiff be given leave to set up and file any valid and substantial defense to said judgment within a period of twenty days from the filing of the within entry, to all of which plaintiff by his counsel excepts.”

Within the statutory period an appeal from the order next above set forth was duly filed.

It will be observed from a reading’of the original-entry providing for the payment of support for the min- or children that the order provided for payment in installments, and that the court reserved a continuing jurisdiction over that subject by the express terms of the entry.

In Van Almsick v. Van Almsick, 69 Ohio App., 425, 42 N. E. (2d), 228, it was decided that an order for support of minor children, payable in installments, is to be considered as in the same category as an alimony award payable in installments, “unless otherwise provided in the judgment entries.”

It is not “otherwise provided” in the entry under consideration.

The case of Meister v. Day, 20 Ohio App., 224, 151 N. E., 786, dealing with alimony payable in installments, states the following:

“1. An order for alimony, not for a fixed sum, but payable in installments, over which the court expressly or impliedly reserves the right of modification, will not, without modification, support an action for a money judgment.

“2. The remedy is to seek a modification of the order for alimony by reducing it to an order for the payment of a lump sum.

“3. The jurisdiction of the court which entered the order for alimony may be invoked for modification,, either by motion filed in the same cause or, in a prope case, by petition for that purpose filed in a separate action in the same court.

“4. When reduced to an order for the payment of a lump sum, the order for the payment of alimony may be sued in the same manner as a judgment for money only.”

From the foregoing it seems apparent that an order . for support, payable in installments, over which the court reserves the right of modification, does not, as said by the trial court, without modification, “operate as a judgment lien for the support of the minor children,” and is not “a continuing and subsisting lien against the plaintiff,” nor may it be “enforcéd by execution at any time”; and it is not true that “no notice to the plaintiff was necessary to give the court jurisdiction to make the summation. ’ ’

The rule is that an order for support, payable in installments, over which the court reserves a continuing jurisdiction, must first be modified by proper pro-' ceedings, so as to reduce the installment order to a lump sum award, before a judgment may be entered thereon.

The “proper proceedings” to procure a modification may be by motion filed in the same court which entered the order and in the same case in which the original order was made, or by petition filed in a separate action in the same court.

In either event, whether by motion or petition, notice to the adverse party is essential to invest the court with jurisdiction to determine the question presented. What constitutes proper notice is not here involved, as no notice whatever was given.

Without such notice, unless waived, or appearance entered by the adverse party, the court is without jurisdiction, and an order made by the court under such circumstances is a nullity.

See Reynolds v. Reynolds, 12 Ohio App., 63.

The purported judgment entered by the trial court in the instant case was entered without notice of any kind to appellant, and no waiver or entry of appearance by appellant is shown or urged.

The purported judgment was a nullity, and void, and the court prejudicially erred in entering it.

The judgment is reversed because contrary to law, and the cause remanded to the Court of Common Pleas for further proceedings according to law.

Judgment reversed.

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


author: Putnam, J.

text:
    The State, ex rel. Ickes, Appellant, v. Slinger et al., Appellees.

      (No. 2236
    Decided October 21, 1946.)

      Messrs. Amerman, Mills, Mills, Jones <&. Mansfield, for. appellant.

      Mr. Robert K. Willison, for appellees.
   Putnam, J.

The relator, appellant herein, is a retired policeman in the city, of Massillon and the respondents, appellees herein, are the trustees of the police relief and pension fund. The action was instituted in the court below by the relator to compel the. respondents by a writ of mandamus to restore him to the pension rolls and to pay him certain monthly installments which had theretofore been withheld. The respondents, by answer, set up certain rules and regulations in force at the time the pension was granted, which provided in substance that if the relator became gainfully employed at a salary exceeding $50 per month he would cease to be eligible for such pension during the. time of such employment. A demurrer was filed to the answer and overruled in the court below and the relator, not desiring to plead further, appeals to this court on questions of law.

' The facts are hot in dispute. The sole question is. one of statutory interpretation and involves Section 4628-1, General Code. The facts as shown by the pleadings are as 'follows: The relator served as a patrolman in the employ of the city of Massillon from April 10, 1930, to April 30, 1945, at which time he resigned and was granted a pension under the rules and regulations of the police relief and pension fund. During the rponth of April 1946 relator was in the employment of a private corporation and received compensation therefor in excess of $50 per month. By reason of such employment the respondents, under the rules in force at the time the pension was granted, discontinued the pension during such period of employment. Rule 25, regulating.the'distribution of the fund, adopted November 3, 1942, some two and a half years prior to the relator’s retirement, is as follows:

Rule 25, Sec. A. — “At any time after November 3, 1942, any member of the Massillon police department who becomes eligible to receive a pension from the police relief fund, other than a pension for disability, and who after receiving such pension becomes employed in any manner whatsoever so as to receive more than $50 per month for his services, shall forfeit all claims to said pension as long as this employment exists.

Sec. B — “Any member of the Massillon police department who applies for and receives a pension, other than a pension for disability, and who becomes employed and receives compensation of more than $50 per month for his services and who forfeits his right to receive said pension as long as said employment exists, shall at the end of such employment be restored to the same pension that he received before said employment was assumed. This restoration of pension is to become effective the day following the cessation of the other employment.

Sec. C — “Sections A and B of Rule 25 shall he in effect only as long as the base pay of patrolmen in the city of Massillon, Ohio, remains at or above $157.50 per month. At any time that the base pay for patrolmen in the 'city of Massillon, Ohio is less than $157.50 per month, Sections A and B of Rule 25 shall immediately become null and void. ’ ’

Section 4628, General Code, provides as follows:

“Such trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid, and the amount thereof, with power also to give credit for prior continuous actual service in the fire department or in any other department of the city rendering service in fire prevention, but, no rules or regulations shall be in force until approved by a majority of the board of trustees.” •

Section 4628-1, General Code, provides as follows:

“The granting of a pension to any’person hereafter pursuant to the rules adopted by the trustees shall operate to vest a right in such person, so long as he shall remain the beneficiary of such pension fund, to receive such pension at the rate so fixed at the time of granting such pension.” (This section was effective May 26, 1937.)

lit is to be noted that the vested right statute (Section 4628-1) and Rule 25 were both in effect at the time the relator was granted a pension.

The relator claims that the phrase “pursuant to the rules adopted by the trustees” can mean only the rules and regulations granting the pension and not rules an,d regulations that may modify it in any way under certain contingencies, irrespective of when the rules may have been passed.

Respondents maintain that the only rights which vest under such section are rights defined by the rules in force when the pension was allowed.

The Supreme Court has stated in the case of State, ex rel. Lemperle, v. McIntosh, 145 Ohio St., 107, at 111, 60 N. E. (2d), 786:

“A pension, granted after the statute took effect, is vested insofar as the power of the trustees is concerned. The provision deprives the trustees of power to take away or impair the right to a subsequently granted pension but does not affect the trustees’ right to pass rules altering pensions previously granted. It cannot be denied that there are now two classes of pensioners, those whose pensions are gratuitous and those whose pensions are vested. This classification or distinction was created not by the rule but by the enactment of the vested-interest statute. Previous to its adoption certain pension rights were outstanding and subsisting, but subject to change by rule * *

In that case the court was considering a rule passed subsequent to the effective date of the vested interest statute but as applying to a person whose pension was granted prior to its passage. The court held it to be valid and applicable.

In the case of State, ex rel. Wunderly, v. Sine, 77 Ohio App., 275, 67 N. E. (2d), 131, the Court of Appeals for Summit county held that subsequent to the effective date of the vested interest statute, the trustees, after granting a pension, could not by a newly enacted rule deprive the recipient of his right to continue to receive the installments thereof.

The situation in the instant case is different from those above mentioned or cited by counsel in that the rule in question, though passed subsequent to the effective date of the vested interest statute, was in effect when relator was granted a pension.

A careful reading of that section (4628-1) shows that “pursuant to” modifies “granting.” “Pursuant to” means “conformable to,” “agreeable to,” “in accordanee with,” “in conformity with.” (35 Words & Phrases, 558.)

We cannot see that the granting “in conformity with” or “pursuant to” should apply to some rules and not to others then in force.

However, this “granting” shall operate to vest a right in such person. Is this unlimited? No. It is not until death, but qualified as to the time, “so long as lie shall remain the beneficiary of such pension fund.” How is it to be determined how long he shall remain a beneficiary? The only way is by rules and regulations in effect at the time. Those rules and regulations did stipulate the conditions under which be ceased to be a beneficiary, vis., one who is entitled to benefits. The relator having knowledge of those rules by his own act placed himself within those conditions.

No question is made as to the reasonableness of the rules. If such a question were raised it seems to us that it has been answered in the McIntosh case, supra.

That statute is plain and unambiguous and the intention of the Legislature is clearly expressed. Under that statute any right that vests is circumscribed by the rules and regulations, reasonable and not arbitrary, in force at the time of the granting of the pension.

The answer stated a defense. The demurrer was properly overruled. The judgment is affirmed.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.


author: Miller, J.

text:
    The State of Ohio, Appellee, v. Stewart, Appellant.
    (No. 1876
    Decided December 10, 1945.)

      Mr. Mathias H. Heck, prosecuting attorney, and Mr. Robert Schroeder, for appellee.

      Mr. Merritt E. Schlafman, for appellant.
   Miller, J.

The defendant was charged, under Section 1639-45, General Code, with contributing to the delinquency of a minor. After.the jury had been impaneled and sworn and before the opening statements of counsel or any evidence had been introduced, it was moved by the state that the affidavit be amended as follows;

“It is further charged that the defendant has been formerly convicted, sentenced and imprisoned for a misdemeanor under the laws of Ohio.”

The motion was sustained and the amendment allowed. The amendment was made in order to comply with the requirements of Sections 4130 and 4131, General Code. Section 1639-39, General Code, provides that the affidavit may be amended at any time before or during trial.

The errors assigned may be summed up as follows:

(1) Sections 4130 and 4131 are in violation of Section 10 of Article I of the Constitution of Ohio.

(2) The court erred in not granting a new trial.

(3) No venue was established.

The amendment to the affidavit was made in conformance with Section 4130, General Code, which reads as follows:

“Every person who, after having been convicted, sentenced and imprisoned, in any workhouse * * *, is convicted of a second misdemeanor * * *, shall for such second offense, be punished by imprisonment for not less than double the penalty imposed for the first offense * * *. But no greater punishment shall be inflicted for the second or third misdemeanor, than the maviumni penalty provided by law or ordinance for the particular offense committed.”

Section 4131, General Code, provides the penalty for conviction of a fourth misdemeanor for those having been three times convicted, and then provides:

“The fact of former convictions shall be charged in the information or complaint and, if proved, shall be stated in the commitment.”

It is the contention of the defendant that those sections are in violation of Section 10, Article I of the Constitution of Ohio, which provides that a person shall not be twice put in jeopardy for the same offense. We cannot agree with counsel that the defendant as charged in the affidavit is being tried or punished again for the prior offense. Our statutes merely provide that on a conviction for a violation of a city ordinance or state law for a second or third time, the penalty shall be greater than for the prior offense, but not in excess of the maximum penalty provided for the particular violation, providing the offense is punishable by an imprisonment in any workhouse. This view is supported by the case of Larney v. City of Cleveland, 34 Ohio St., 599, in which it was held:

“Where a greater punishment may be inflicted on a conviction for a second or subsequent violation of a criminal law, than for the first, the fact that the offense charged is a second or subsequent offense must be averred in the indictment or information, in order to justify the increased punishment."

In Blackburn v. Stale, 50 Ohio St., 428, 36 N. E., 18, in speaking of the Habitual Criminal Act (82 Ohio Laws, 237), the court said, in the third paragraph of the syllabus:

“The statute does not create a new offense, but attaches an additional penalty to the commission of any felony, where the perpetrator thereof has been twice previously convicted * *

It is further contended that Sections 4130 and 4131, General Code, are in conflict with Section 13444-17, General Code, which provides:

“When the defendant offers evidence of his character or reputation, the prosecution may offer in rebuttal thereof, proof of his previous conviction of a crime involving moral turpitude, in addition to other competent evidence."

It will be noted that that section refers to the admission of evidence after the defendant has offered evidence as to his character. Sections 4130 and 4131 are not on this subject and, therefore, there can be no conflict.

The defendant filed a motion for a new trial supported by the affidavit of an officer of the state Department of Liquor Control who says he had the place of business of the defendant under surveillance and did not see any minor under the age of 18 years in or about the premises. '

The overruling of such motion was not error, as the newly discovered evidence was of an entirely negative nature. The affidavit of the witness does not state that he was present on the specific occasions complained of. The record discloses that numerous witnesses testified that the acts complained of were committed in their presence. The motion was properly overruled.

The third error complained of is that the record does not disclose that the offense was committed in the county of Montgomery and state of Ohio. It is true that this direct question was not asked of any of the witnesses, but the venue is apparent from a reading of the whole record. Numerous witnesses testified that the offense was committed at 1007 Germantown street. Lillian Lee, the first witness called, tóstified that she resided at 540 South Summit street, which is about 12 blocks • from 1007 Germantown street. On cross-examination she testified that she had lived in Dayton ever since 1936. Since she testified that her residence at 540 South Summit street was only about 12 blocks from the scene of the crime it would necessarily follow that it also was in the city of Dayton, Montgomery county, Ohio.

The record further discloses that H. A. Reed, a police officer of the city of Dayton, testified that his duties, often took him to 1007 Germantown street, and that he was dispatched there in a police cruiser when the offense was alleged to have been committed and the arrest made.

Harry Price, another witness, testified that he lived at 1007 Germantown street, and that he had lived in Dayton since 1929.

In view of the testimony of these and other witnesses, the jury was justified in concluding that the offense was committed in the county of Montgomery and state of Ohio.

In State v. Dickerson, 77 Ohio St., 34, 82 N. E., 969, 122 Am. St. Rep., 479, 13 L. R. A. (N. S.), 341, this subject was under consideration. Paragraph one of the syllabus thereof says:

“•In the prosecution of a criminal case, it is not essential that the venue of the crime be proven in express terms, provided it be established by all the facts and circumstances in the case, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the indictment.”

See, also, Whalen v. State, 26 Ohio App., 335, 159 N. E., 481.

Finding no error in the record, the judgment is affirmed and the cause ordered remanded.

Judgment affirmed.

Hornbeck, P. J., and Wiseman, J., concur.


author: Ross, J.

text:
    Readnour, Appellee, v. Cincinnati Street Ry. Co., Appellant.
    (No. 6705
    Decided November 25, 1946.)

      Mr. James M. McPherson and Mr. Wm. B. Petermann, for appellee.

      Mr. Leo J. Brumleve, Jr., for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of-Hamilton county in favor of the plaintiff.

The plaintiff loaned her automobile to her husband who used it in his business as a real estate agent. The plaintiff was the bailor of the vehicle, the husband, the bailee.

The husband drove the car from a parked position at the curb of Erie avenue in the city of Cincinnati into the path of a streetcar operated by employees of the defendant. There is evidence that in so doing he was guilty of negligence. There is substantial evideuce that the defendant was also guilty of negligence in that the streetcar was proceeding at an unreasonable speed and that the operator thereof was not keeping a proper lookout.

In other words, there is evidence that the negligence of the husband and the defendant concurred in causing the damage to the automobile of the plaintiff.

The defendant claims that the trial court should have instructed a verdict for the defendant — (1) be- • cause the plaintiff was not the real party in interest.

The basis for such contention is that the automobile of the plaintiff was taken to a garage for repairs, that the repairs were made, and that the husband paid the repair bill; hence, the plaintiff suffered no damage, and if there is any claim against the defendant, it would be that of the husband who would be subrogated to the rights of the plaintiff.

From the evidence it appears that a representative of the garage testified that the husband had paid the bill for repairs. The plaintiff testified that she paid $973.56 for the repairs. Without further amplification of the evidence, the jury was warranted in concluding that the husband paid the bill for his wife, and that she either reimbursed him or gave him the money to pay the.bill. Her testimony is positive that she paid the bill. This disposes of that contention adversely to the defendant.

(2) It is asserted by the defendant that the collision occurred solely through the negligence of the husband. .The evidence does not sustain such contention. There was substantial evidence that the streetcar was operated at an unreasonable speed and that the motorman was not keeping a proper lookout, had his head turned, and was talking to a man near him just before the collision occurred.

(3) It is claimed by the defendant that the husband was guilty of contributory negligence. Sucb negligence, even if it existed, could not be imputed to tbe bailor, plaintiff. 5 Ohio Jurisprudence, 121, 122; Conart Motor Sales, Inc., v. Shullo, 70 Ohio App., 423, 46 N. E. (2d), 415.

It is claimed also by the defendant that tbe court erred in giving special charges in effect stating tbat tbe negligence, if any, of tbe husband, bailee, could not be imputed to tbe plaintiff,. bailor. Tbe court committed no error in so instructing tbe jury.

Tbe defendant claims error also in tbe refusal of tbe trial court to give tbe following special charge:

“Tbe court charges you tbat tbe motorman had a right to assume tbat tbe plaintiff’s husband would see what ordinarily prudent persons, situated in tbe same or similar circumstances as those of tbe operator of tbe automobile, would see; and, if you find that* ordinarily prudent persons so situated would have seen tbe approach of tbe streetcar and would not have started tbe automobile until tbe streetcar bad passed and plaintiff’s husband failed so to do, then be was negligent.”

There were only three issues in tbe case: (1) Was tbe defendant negligent? (2) Was tbe plaintiff damaged as tbe proximate result of sucb negligence? (3) Tbe amount of damages.

If tbe defendant was not negligent, then tbe plaintiff could not recover. If tbe defendant was negligent and sucb negligence was a proximate or contributing cause of tbe damage to tbe automobile of plaintiff, whether tbe negligence of some person other than defendant concurred in causing sucb damage is wholly immaterial.

Tbe proper defense of tbe defendant was limited to a denial of its negligence. Allegation of tbe negligence of a third party had no place in the case. That charge, therefore, which dealt with the negligence of a third party applied to an extraneous issue. Whether the jury under the special charge would find negligence could make no difference. Suppose a special interrogatory had been predicated upon that special charge. An answer of negligence or no negligence would not have been pertinent to issue properly presented to the jury which was whether the defendant was negligent. The court properly refused the special charge.

Contrary to the claim of the defendant, evidence appears in the bill of exceptions sustaining the amount of the verdict.

The defendant makes some claim also that the action of the jury constituted a “quotient verdict.” Even if there were any substantial evidence to this effect, which does not appear, there is no showing that the jury agreed in advance that it would be bound by a quotient finding or that the verdict was not the verdict of the jury. 39 Ohio Jurisprudence, 1104; Kidwell v. McPherson, 28 Ohio Law Abs., 157; Smith v. Lightfritz, 22 Ohio Law Abs., 181.

For these reasons, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

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


author: Doyle, P. J.

text:
    Hershey, Appellee, v. Jacobs, Appellant.
    (No. 1095
    Decided March 19, 1947.)

      Mr. Alton H. Etling and Mr. Raymond O. Morgan, for appellant.

      Mr. Willis Horn and Mr. Karl E. Hoover, contra.

   Doyle, P. J.

The following motion is before this court for ruling:

“Now comes D. G. Jacobs, appellant, and moves the court for an order to stay execution of the final judgment in this proceeding, to reverse which an appeal has been filed:”

' It appears that this court affirmed a judgment of the Court of Common Pleas of Wayne county, which ordered the restitution of certain lands and buildings to the petitioner and awarded the sum of $1,000 as rent for the premises. The judgment of affirmance in this court also “ordered that a special mandate be sent to the Court of Common Pleas of Wayne county to carry this judgment into execution,” in accordance with the provisions of Section 12223-40, General Code.

The above motion and a supersedeas bond, regular on its face, is now presented to this court, with the request that, upon the filing of the said bond in this court, the “execution of final judgment * * * be stayed until determination of this case by the Supreme Court of Ohio.” It is claimed by the movant’s adversary that this court is without authority to order a stay of execution upon the filing of a supersedeas bond under the statutes extant; that only the trial court or the Supreme Court has such right.

We do not think i't necessary to set forth the historical background of' the law regulating the stay of execution of judgments. Suffice it to say that the statute now regulating such procedure is in this language (Section 12223-9, General Code):

“No appeal shall operate as a stay of execution except as hereinafter provided, unless and until a super- • sedeas bond be executed on the part of the appellant to the adverse party with sufficient surety in such sum, not loss than the amount of the judgment and interest, as is directed by the court making the order which is sought to be superseded or by the court to which the appeal is taken, conditioned as hereinafter provided in Section 12223-14.” (Italics ours.)

Section 12223-14, General Code, speaks of the conditions of such bond only.

The order “which is sought to be superseded’ ’ by the present notice of appeal to the Supreme Court of Ohio is the judgment of this Court of Appeals, which affirmed the judgment rendered in the Court of Common Pleas. It therefore follows that the statute authorizes the filing of the bond in this court, and that this court is empowered to issue such stay.

It appearing that a sufficient bond is presented and filed, the motion will be sustained.

Motion sustained.

Hunsicker, J., concurs.

Stevens, J., not participating.


author: Wiseman, J.

text:
    Foureman et al., Appellees, v. Foureman et al., Appellants, et al., Appellees.
    (No. 647
    Decided November 15, 1946.)

      Mr. T. A. Billingsley and Mr. Floyd D. Smith, for appellees Roy B. Foureman and Alma B. Foureman. Mr. Walter F. Rhynard, for appellants.

      Mr. Qeorge W. Porter, for appellee The Peoples Savings Bank of G-reenville, Ohio.
   Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Darke county, Ohio, wherein the court construed the will of Lazarus Foureman, deceased, and issued a decree for the partition of certain lands known as the “home farm.” Under the will, the widow, Elizabeth B. Foureman, was given a life estate with a remainder to the children share and share alike. The will further provided in item 5 that “should any child or children become dissatisfied with this my will and cause any trouble in the settlement of my said estate, or go into court for the purpose of contesting this will or to partition said real estate, or otherwise interfere with the proper administration of my said estate, then it is my desire that such child or children shall forfeit to the estate the undivided one-third part of his, her, or their shares on distribution; and that the portions so forfeited to my said estate shall pass to and vest absolutely in my child or children satisfied with my said will, share and share alike. ’ ’

Testator died on March 25, 1925, leaving surviving him his widow and three children, Roy B. Foureman, Alma B. Foureman and Howard L. Foureman, all of whom are living adults. The will was admitted to probate by the Probate Court of Darke county, Ohio, on May 9, 1925. No executor was appointed and no fur-ther steps, were taken in the administration of the estate. On December 16, 1938, Howard L. Foureman and his wife, Carrie Foureman, together ' with the widow, Elizabeth B. Foureman, executed and delivered to the defendant, The Peoples Savings Bank óf Green-ville, Ohio, a certain real estate mortgage conveying to that bank their interest in the farm. The mortgage was given to secure a note on which there was due $3,580. On March 11, 1944, the widow by deed conveyed to the.plaintiffs, Roy B.-Foureman and Alma B. Foureman, all her right, title and interest in the farm.

In the original petition the plaintiffs prayed for an accoimti'ng and an order of partition. In their amended petition for their first canse of action, plaintiffs seek the construction of the will of Lazarus Foureman, and in their second cause of action pray that if the court should find that the restrictions in the will against partitioning of the real estate are invalid and ineffective, in that event, the plaintiffs be granted a decree of partition. To the amended petition the defendants Howard L. Foureman and Carrie B. Foureman, appellants herein, filed their third amended answer and cross-petition in which they set up numerous defenses. They invoked the forfeiture clause contained in the will and asked the court to construe the will and declare that plaintiffs had forfeited their interest in the real estate.

The court held that the widow took a life estate which was transferable; that the three children took an absolute fee simple estate in remainder, subject to the life estate of the widow; that the restraint placed by testator upon the right of the children to partition the “home farm” was for the protection of the widow so long as she retained her life estate, and was not intended to be a continuing and permanent restraint upon the right of the children to partition; and that the provision in item 5 in the will which attempts to prevent any of the children from partitioning the real estate is null and void and does not operate to restrict the rights of the remaindermen. The court found further that the interest of Elizabeth B. Foureman, Howard L. Foureman and Carrie Foureman in the real estate is subject to the mortgage lien in favor of The Peoples Savings Bank of Greenville, Ohio; that plaintiffs are entitled to have partition of the real estate.

For their assignments of error, the appellants claim that the judgment of the court is contrary to law; that the judgment is not sustained by sufficient evidence; that the court erred in the exclusion and omission of testimony; that the court erred in admitting evidence over their objection; that the judgment is against the manifest weight of the evidence; that the court erred in permitting plaintiffs to amend their petition from a suit in partition to a suit to construe a will; that the court erred in entertaining a suit to construe a will under Section 10504-66, General Code, as the action was not instituted by them as fiduciaries; that the court erred in entertaining a suit under Section 12102-2, General Code (Uniform Declaratory Judgments Act), as all questions involved were moot; that the court erred in denying the defendants a trial on their answer and cross-petition; that the defendants Howard B. Foureman and Carrie B. Foureman were not given an opportunity to interpose a defense; and all other questions on the face of the record.

On the issues drawn by the pleadings, the principal question for the court to determine was whether the restrictive clause in the will which attempted to deprive a remainderman from bringing a partition suit was valid. Whether the court finds in determining the intention of the testator, which is the cardinal rule to follow in all will construction suits, that the restrictive clause was for the protection of the widow and ceased to operate when' she conveyed her interest, or that the provision was repugnant to the devise of a fee simple estate, the result would be the same as to the rights of the plaintiffs to partition. An unlimited right of disposition is the essence of an estate in fee simple, and the law of Ohio is fairly well settled that any attempt to restrict the right of the holder to alienate his interest is null and void. See 31 Ohio Jurisprudence, 330; 16 Ohio Jurisprudence, 391; 28 Ruling Case Law, 316; Anderson v. Cary, 36 Ohio St., 506, 38 Am. Rep., 602; Baker v. Alexander, 24 Ohio App., 117, 156 N. E., 223; Toledo Loan Co. v. Larkin, 1 C. C. (N. S.), 473, 15 C. D., 209; Minor v. Shippley, 21 Ohio App., 236, 152 N. E., 768; and Persinger v. Britton, 10 Ohio App., 164. See, also, 2 Page on Wills (2 Ed.), 1787; 3 Tiffany on Real Property (2 Ed.), 2307; and 5 Thompson on Real Property, Section 2716.

We approve the judgment of the trial court that the restrictive clause in the will was for the protection of the widow’s interest and ceased to operate after she conveyed her interest. That disposes of the principal issue in the case.

We hold that the trial court did not abuse its discretion in permitting the plaintiffs to-amend their petition to include a cause of action in which they asked the court to construe the will. The journal entry recites that the right to amend was granted in open court in the presence of counsel. Counsel did not reserve objection to the court order. Furthermore, the defendants Howard L. Foureman and Carrie B. Foureman joined issue by filing thereto their amended answer and cross-petition. In their cross-petition they asked the court to construe the will and thus they pray for the same relief as the plaintiffs ask in their amended petition. The contention is made that the plaintiffs could not maintain a will construction suit as they did not bring such suit as a fiduciary of an estate as provided under Section 10504-66, General Code. This action was brought under the provisions of Sections 12102-2 and 12102-4, General Code, which are a part of the Uniform Declaratory Judgments Act and provide that any person interested in the estate or trust may bring such action.

We have examined the bill of exceptions and cannot find where the court committed prejudicial error either in the admission or exclusion of evidence. Furthermore, we are of the opinion that the judgment is sustained by sufficient evidence, and that the judgment is not against the manifest weight of the evidence. The record does not show where the defendants Howard L. Foureman and Carrie B. Foureman were denied the right to interpose a defense or to introduce any evidence pertinent to the issue.

Finding no error in the record prejudicial to the appellants, the judgment of the trial court is affirmed.

Judgment affirmed.

Hornbeck, P. J., concurs.

Miller, J., not participating.


author: By the Court.

text:
    Foureman et al., Appellees, v. Foureman et al., Appellants, et al., Appellees.
    (No. 647
    Decided December 14, 1946.)

      Mr. T. A. Billingsley and Mr, Floyd D. Smith, for appellees Roy B. Foureman and Alma B. Foureman.

      Mr. Walter F. Rhynard, for appellants.

      Mr. George W. Porter, for appellee The Peoples Savings Bank of Greenville, Ohio.
   By the Court.

The cause is submitted on motion to have this matter heard by a three-judge court. At the time this matter was submitted to the court it was stated in open court that Judge Miller had decided not to participate for valid reasons. Thereupon the presiding judge asked counsel whether they were willing to submit the matter to a two-judge court. All counsel, in open court, agreed to do so. We find nothing improper or illegal in that procedure. The agreement of counsel appears in the record. The constitutional provision (Section 6, Article IV) requiring a concurrence of all three judges in a reversal of the judgment of the trial court on the facts has no application here, as the judgment of the trial court was affirmed and not reversed. Furthermore, this appeal was one on questions of law and the questions raised were not factual. The weight of the evidence was not involved.

The application will be denied.

Application denied.

Hornbeok, P. J., and Wiseman, J., concur.

Miller, J., not participating.


text:
    Gatton, Appellant, v. F. J. Egner & Son, Inc., Appellee.
    (No. 742
    Decided December 10, 1946.)

      Messrs. Bowers, Stafford & Bowers, for appellant.

      Messrs. Fisher, TAmbach, Smith & Renner, for appellee.
   Sherick, P. J.

This appeal complains of the trial court’s action in sustaining a motion, interposed by defendant at the conclusion of plaintiff’s statement of his cause of action, for dismissal of the petition for the reason that plaintiff’s petition and statement of his case does not state or constitute a cause of' action, and that the petition and statement disclose that plaintiff was guilty of negligence which contributed to and proximately caused the damage of which he complains.

Briefly, the pleaded facts and statement of what plaintiff proposed to prove are that on a dark and rainy fall night plaintiff was driving northerly on state route No. 250; that several cars passed him going in the same direction, the last of which after cutting in, in front of him in the same line of traffic, suddenly-swerved, to the left and passed'defendant’s truck which was standing in plaintiff’s path, without having displayed any lights, fusees, flares, torches or lanterns as required by law; and that the standing truck was of dark olive color and was invisible to plaintiff, and by reason thereof, and the intervening car having obstructed his vision, he was unable to stop, which caused his car to collide with the rear end of the truck standing in his lane of travel.

It is agreed that solution of the controversy is dependent on the applicability of the “assured clear distance ahead” statute, Section 6307-21, General Code, formerly found incorporated in Section 12603, General Code, as it is popularly denominated. That section, enacted for the benefit of the public, directs as an absolute rule of conduct, that' one shall not drive, his vehicle on a public highway “at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead”; and that a failure to conform thereto is negligence per se, as is held in Glasco v. Mendelman, 143 Ohio St., 649, 653, 56 N. E. (2d), 210.

The courts of this state, and also those of Michigan,. Pennsylvania and Iowa, which have similar, in fact identical statutes, hold to the rule that the object which obstructs traffic in one’s lane of travel must be a “discernible object,” before the statute can apply; and that if the state of facts appearing in any particular case, discloses a situation which presents a justifiable legal excuse, the statute shall not apply.

Was defendant’s parked, olive-colored and unlighted truck standing in plaintiff’s lane of travel on that dark and rainy night a discernible object? In Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. (2d), 427, that question is answered in the affirmative. We see no need in quoting therefrom, other than to say that the court followed the rule stated in a like case in Lindquist v. Thierman, 216 Iowa, 170, 248 N. W., 504, 87 A. L. R., 893. The same conclusion is reached in Dalley v. Mid-western Dairy Products Co., 80 Utah, 331, 15 P. (2d), 309. This court has previously subscribed to the same view in Beal v. Erie Rd. Co., 51 Ohio App., 397, 1 N. E. (2d), 328.

Do the facts pleaded and proposed to have been developed constitute a justifiable legal excuse which makes the statute inapplicable? In answering that qu¡ery, it must be kept in mind that plaintiff was not forced out of his lane of travel into- a parked vehicle, but that defendant’s truck was parked in plaintiff’s lane of traffic. Plaintiff argues that the intervening automobile was the discernible object within his range of vision, and that it obscured and cut off his view so that he could and did not see the parked truck in time to avoid colliding with it. The admitted fact is, however, that the driver of the intermediate car saw it in time, swerved to the left and avoided it. When that car swerved it was in closer proximity to the truck than was plaintiff’s car. Ought not plaintiff, in the exercise of ordinary care, to have been able to do likewise?

Drivers of motor cars well know that other vehicles are using the public roads, that other vehicles precede and follow them in the same lane of traffic, and that such vehicles may be driven slowly or fast and for some reason may come to an abrupt stop. Those are the facts which without doubt in part prompted enactment of the statute which directs that one shall be able to stop within the assured clear distance ahead. Section 6307-76, General Code, and related sections require that driving light be of sufficient illuminating power to enable a driver to see discernible objects in tbe public highways. If one chooses to drive so fast or so close in traffic that he cannot see or stop within the assured clear distance ‘ahead he ought not to seek reimbursement for his own folly. If one so drives upon the public road and is unable to stop when discernible objects suddenly loom up in his lane of travel, even if the other be negligent, he may not recover damages when his own .negligent act contributes to and is a proximate cause of his injury. This court deems it proper to point out that the provisions of Section 6307-21, General Code, contemplate discernible objects that may be seen or ought to have been seen by a driver in the exercise of due care and compliance with statutory requirements, rather than when such objects are seen by a careless driver.

In Smiley v. Spring Bed Co., 138 Ohio St., 81, 88, 33 N. E. (2d), 3, the court, because of the statute’s requirements, goes so far. as to disturb the then understood rule and to hold that one may not assume that other drivers using the highway will obey the law. It will be noted that it is said in the Smiley case that “it is highly desirable that the statute be given a similar interpretation by the courts of the several states wherein it is in force”; and cites with approval, Moore v. United States Truclt Co., 260 Mich., 56, 244 N. W., 228. Examination of that authority discloses that it is upon all fours with the facts in the present case. 'This court, therefore, considers it a precedent which it ought to follow.

The recent case of Bush v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851, restates in its second paragraph of the syllabus what are justifiable legal excuses for non-application of the assured clear distance ahead statute. It is held that there “must be something which makes it impossible to comply with the safety legislative enactment, something over which the driver has no control, an emergency not of the driver’s making causing failure to obey the statute, or an excuse or exception specifically provided in the enactment itself.” We cannot find that any excuse offered by plaintiff falls within any exception therein stated. It follows that the judgment must be and is affirmed.

Judgment affirmed.

Putnam and Montgomery, JJ., concur.


author: Conn, J.

text:
    Ward, Appellee, v. Bickerstaff et al., Appellants.
    (No. 720
    Decided December 9, 1946.) .

      Mr. Alva TV. Bachman, for appellee.

      Mr. Karl E. Mollenberg and Mr. Kenneth Adams, for appellants.
   Conn, J.

This cause was submitted to this court as an appeal on questions of law from a judgment entered by the Court of Common Pleas of Wood county for the plaintiff and against the defendants, in an action for specific performance of a contract for the purchase of real estate by the plaintiff from the defendants. The defendants appeal.

It appears from an examination o'f the transcript of the docket and journal entries that the finding and judgment entry was filed on March 18, 1946, and that the motion for a new trial was filed on March 26, 1946, which was more than three days from the entry of the finding and judgment. ' Under the provisions of Section 11578, General Code, prior to the recent amendment of such section, a motion for a new trial must have been made within three days after the rendition of the verdict or decision complained of. Such amendment became effective October 11, 1945. The petition in this case was filed on October 10, 1945, and, under the provisions of Section 26, General Code, the amendment does not affect pending actions, as it is not otherwise expressly provided in the amending act. Therefore the amended statute does not here apply.

Notwithstanding the state of the record already referred to, we have examined the assignments of error and considered the case on its merits. Defendants claim that the judgment is not sustained by the evidence and is contrary to law, and that the plaintiff is not entitled to specific performance because the alleged memorandum is insufficient under the statute of frauds. They claim, also, that the alleged memorandum is insufficient as a'basis for any action for specific performance for the reason that there is no mutuality of remedy and equity will not decree specific performance where the remedy is not mutual.

Defendants claim that the receipt or memorandum does not comply with the statute of frauds and is insufficient as a matter of law for the reason that the memorandum is uncertain and incomplete. The statute referred to, Section 8621, General Code, provides that no action shall be brought on a contract for the sale of lands “unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to he charged therewith * * V’ We observe that the requirement that the agreement must he in writing is stated alternatively. Either the agreement must be in writing or some memorandum or note thereof.

The statute does not deal with the substance of the agreement or prescribe its form or manner of execution. It does provide that no action can be maintained on an oral agreement for the sale of lands or upon parol evidence alone.

If the writing be merely a memorandum or note, it would not be a complete contract and no inference would arise that it was so intended by the parties. Rather, it would indicate a degree of nakedness which later on might he clothed with factual details, within the. sound discretion of the court.

In an action for specific performance on such memorandum, the trial court, subject to the rules of evidence and in the exercise of its sound discretion, may, in the furtherance of equity and justice, admit parol evidence to amplify the memorandum so as to enable the party claiming thereon to show the contract between the parties. 37 Ohio Jurisprudence, 189, Section 173.

In the instant case, the writing is as follows:

“Bowling Green, Ohio, Sept. 22,1945.

“Received of Ellswprth Ward one hundred dollars $100 part payment on inlot 1136 and inlot 1137, at a cost of $5,000.

“Robert Bickerstaph

“Helen Bickerstaph.”

It is apparent that the writing is not a formal written agreement for the sale of lands. That if is “some memorandum or note ’ ’ in writing, signed by the parties to be charged therewith, is also apparent, and, under the statute (Section 8621, General Code), an action thereon may be brought.

The defendants in their answer denied the allegations of plaintiff’s petition, and by way of second defense pleaded that the alleged contract was not in writing as required by the statute of frauds. No further defense was pleaded. Upon the trial, the signing of the memorandum and the receipt of the partial payment on the purchase price were admitted by defendants. Helen Bickerstaff testified that she did not know the sale price was $5,000, although it was so stated in the memorandum which she and her husband signed. No defense of fraud or mistake was made, or that the plaintiff had failed to perform or had made default in any manner in respect to the contract. The evidence affirmatively shows that the plaintiff promptly arranged for the payment of the remainder of the purchase money, that a definite date for closing the transaction was fixed, but that defendants refused to perform.

We have examined the cases cited by the defendants, including the case, of Kling, Admr., v. Bordner, 65 Ohio St., 86, 61 N. E., 148, which is regarded as a leading case in this state. In that case, however, the facts bear but slight similarity to those in the instant case, and the rules of law contained in the syllabus of the former case do not have unlimited application. In other words, the rule of law announced in the syllabus of a decision by the Supreme Court must be read in the light of the facts of that particular case and may not be given application in a subsequent case where the facts are substantially dissimilar.

It is contended by defendants further that one of the tests that plaintiff must meet in this case is that the right to the remedy of specific performance must be mutual. The doctrine of mutuality of remedy, as illustrated in the reported cases, is somewhat confused. While mutuality of remedy may be a satisfactory test in some cases, it is not a rule of universal application to which all other principles of equity jurisprudence pay homage, nor is it a limitation on the power of a court of equity to decree specific performance in a particular case. 49 American Jurisprudence, 46, Section 34; 2 Restatement of Contracts, Section 372; 4 Pomeroy’s Equity Jurisprudence (5 Ed.), 1040, Section 1404.

We call attention to the general rule as announced in the first paragraph of the syllabus in City of Tiffin v. Shawhan, 43 Ohio St., 178, 1 N. E., 581, as follows:

‘ ‘ The duty of a court of equity to decree specific performance of a contract to convey real estate, can not be determined by any fixed rule, but depends upon the peculiar facts and equitable considerations of each case, and rests in the sound discretion of the court, guided and regulated, however, in the exercise of that discretion, as far as may be, by precedent and established practice. ”

In view of the authorities cited and numerous reported cases, the right to have a contract specifically enforced abides in the sound discretion of the court. 37 Ohio Jurisprudence, 24, 203, Sections 20, 187.

It appears that there has been no inequitable conduct on the part of the plaintiff, and that the relief prayed for is in harmony with the principles of equity jurisprudence. It appears from the record also that the judgment of the trial court makes effective the. actual intent of the parties and is grounded upon justice and fair dealing.'

Judgment affirmed..

Carpenter and Stuart, JJ., concur.


author: Washburn, P. J.

text:
    Mattucci, Admr., Appellant, v. The Ohio Edison Co., Appellee, et al.
    (No. 3811
    Decided October 23, 1946.)

      Mr. B. E. Mustek, for appellant.

      Messrs. Slabaugh, Ouinther, Jeter é Pfiueger, for appellee.
   Washburn, P. J.

Appellant, Angelo Mattucci, administrator of the estate of Joseph Mattucci, brought this action, and will be hereinafter referred to as plaintiff.

The action as tried was against The Ohio Edison Company, appellee, which will hereinafter he referred to as defendant.

The relief sought was damages for the death of Joseph Mattucci, which was caused by a collision between an automobile in which he was riding-as a guest, and an electric light pole of the defendant, which was located, not in the traveled portion of the street, but on a grass strip, six feet wide, between the sidewalk and the curb of a street in Akron, which portion of the street was lighted by a light attached to an arm extending a short distance over the street from a pole, and the pole was located on the outside of a curve in the road at that point. The traveled portion of the street was 36 feet wide and paved with brick, and the pole was close to the curb, as were all the poles along the street in that vicinity, and had been so maintained for many years, with at least the consent and approval of the city of Akron.

After the plaintiff had introduced his evidence, and the defendant had introduced certain exhibits without objection, the plaintiff rested, and, on motion of the defendant, the court arrested the case from the jury and entered a judgment in favor of the defendant.

That being the situation, this court can properly affirm the judgment only in the event that it is found that reasonable minds, after a consideration of the evidence, could reach but one conclusion in reference to the controlling facts, and that such facts were such as to preclude, as a matter of law, a recovery by the plaintiff.

Before referring to the controlling facts, we call attention to the provisions of Section 9180, General Code, which, by virtue of Section 9192, General Code, apply to companies which, like the defendant, are organized for the purpose of supplying the public in general with electric light and power. That section (9180) provides that snch companies may construct upon and along the -public roads and highways, poles and other appliances for the transmission of electricity, provided the poles, etc., are not so constructed “as to incommode the public in the use of the roads or highways.” The use referred to in said section is the use of the traveled portion of the highway, but it is recognized that, in some instances, poles or other obstructions which are maintained in close proximity to the traveled portion of the highway, may incommode the public in such use.

The general rule, which is supported by the authorities, is, as stated in 98 A. L. R., 487, that “a company lawfully maintaining poles in or near a public highway is not liable for damages to person or property resulting from a road vehicle striking such a pole, unless it is erected on the traveled portion of the highway or in such close proximity thereto as to constitute an obstruction dangerous to anyone properly using the highivay, and the location of the pole is the proximate cause of the collision.” (Italics ours.)

Having these principles of law in mind, we will now state the facts that we find to be established with the certainty hereinbefore indicated.

Plaintiff’s decedent was riding as a guest in the rear seat of an automobile which was being driven by the owner thereof in January, 1942, in the early evening but after dark, along the street where said pole was located, when there was no other traffic on the street in the vicinity of said pole.

There was a person in the car sitting beside the driver, and three persons in the rear seat, one of whom was plaintiff’s decedent. The weather was clear'and the pavement was dry, and the driver lived in the vicinity and was familiar with the highway at the curve iii question. He was driving at a very high rate of speed, and so drove the car as to cause it to collide with said pole, which was 14 inches in diameter at the place where it was' broken oft, and which was just above the ground, and in addition the pole was broken in two about six feet above the ground, and the upper part was held by the wires in an upright leaning position, with the bottom end of the pole resting on the pavement close to the curb; and the car traveled about 80 feet beyond the pole, along the grass strip, and knocked down a tree before it came to rest. The automobile was completely demolished, and the three persons in the rear seat were instantly killed, and the driver and the person sitting beside him were injured.

We find that said pole was not maintained so as to incommode the public in the reasonable and proper use of the street. We further find that the evidence established beyond peradventure that the driver was not properly using the highway, and that the sole proximate cause of the death of plaintiff’s decedent was the improper manner in which the automobile in which he was riding was operated, and that the existence of the pole at the point where it was maintained was not a proximate cause of such death.

We hold that the trial judge' was fully warranted in rendering judgment on the facts in the record in favor of the defendant.

Judgment affirmed.

Doyle and Stevens, JJ., concur.