author: Matthews, J.

text:
    Rosselott, Appellee, v. Rosselott, Appellant.
    (No. 7535
    Decided October 13, 1952.)

      Messrs. Dolle, O’Donnell & Gash and Mr. John Hahn, for appellee.

      Messrs. Cors, Scherer, Hair é Hardsoclt and Mr. Louis J. Schneider, Jr., for appellant.
   Matthews, J.

This is an appeal on questions of law and fact from a judgment declaring the defendant a trustee of the proceeds of a certain insurance policy issued by the Columbus Mutual Life Insurance Company and directing him to hold such proceeds in a separate account as trustee and use the fund to defray the expense of a college education of his son— the plaintiff in this action. By agreement of the parties, the case was heard in this court on the evidence adduced in the trial court.

On July 20, 1936, the defendant made application to the Columbus Mutual Life Insurance Company for this policy for $2,000. The policy was described in the application as an “Educational endowment at age 18” policy. The defendant was named as the original beneficiary and Mae Bosselott, his wife at that time, was designated as the “contingent beneficiary.” It was on this application that the policy was issued on July 29, 1936. The application was attached to the policy upon which was endorsed the legend “Childs educational endowment at 18.”

The policy recites that the Columbus Mutual Life Insurance Company “insures the life of John Dale Bosselott and agrees to pay two thousand dollars to Millard C. Bosselott, father of the insured, if living, otherwise to Mae Bosselott, mother of the insured, in four annual installments of five hundred and 00/100 dollars each, the first installment being due on the 29th day of July, 1950, and the subsequent installments annually thereafter, provided the insured, for whose education this is intended is alive on the aforesaid date and this policy is then in full force. ’ ’

The policy contains a provision that should the insured die before July 29, 1950, the insurer would pay to the beneficiary $1,520 if death occurred during the first year and $1,900 if death occurred thereafter during the term of the policy.

The policy also contained a provision that the death of the beneficiary would terminate the obligation to pay premiums to keep it in force.

By the terms of the policy the beneficiary was given the right during the lifetime of the insured to the cash surrender value of the policy, as well as the right to its loan value and also all dividends declared by the insurer on the policy.

The stipulated premium was $143.95 annually until 14 payments had been made or until the death of the insured.

The policy contained no provision for a change of the original beneficiary — the defendant — but did vest in him the right to change the contingent beneficiary. The provisions to this effect were followed by the provision that “if there be no designated original or contingent beneficiary surviving all interest in the policy shall vest in the insured or his estate. ”

The foregoing are all the provisions of the policy that have any bearing upon the issue in this case. A reading of the policy discloses that all the rights, options and privileges arising during the term of the policy were vested in the original beneficiary, the defendant in this action, during his lifetime. He is given complete control over it. He could terminate it at will and appropriate to his own personal use its entire value. The policy was issued on his application and purports to be a contract between him and the insurer and no one else. The insured — plaintiff herein — was given no control over or rights of any sort in the policy or its cash loan or cash surrender value during the term of the policy. As long as there was either an original or contingent beneficiary in being, the insured was given no right whatever against the insurer. It was only in the event of the nonexistence of both the original and contingent beneficiaries that the insured was given the right to the benefits created by the policy.

The testimony discloses that the defendant obtained a similar policy upon the life of an older son and that upon its maturity the insurer paid the proceeds by check to the defendant and that he endorsed the check to the mother of their two sons. The evidence is conflicting as to whether this identical money was used to defray the expenses of the college education of the older son. He did receive a college education. The evidence shows that the defendant and Mae Rosselott were divorced prior to the maturity of the policy. By a separation agreement approved by the court the care, custody, control and education of the plaintiff was awarded to his mother, Mae Rosselott, and their property was divided in such a way that Mae Rosselott’s share was variously valued by the parties at from $50,000 to $125,000. No mention was made of this insurance policy or the one upon the older son’s life, although other policies were mentioned in the agreement of separation.

There was evidence that before this family relation was dissolved, on various occasions when their sons made requests which the parents regarded as beyond their means to grant, they cited these insurance policies to their sons as a reason for their inability to gratify their immediate desires.

We think the foregoing is a correct summary of the evidence in this case. It seems to us that the evidence extraneous of this policy has very little, if any, probative value and leaves the case to be determined by a consideration of the terms of the policy alone. Does it give to this plaintiff a vested right in the proceeds ?

The application for this insurance was made by the defendant. He was the offeror. The insurer was the offeree. They were the parties to the contract of insurance. The plaintiff was in no sense a party to that contract.. It was not necessary that he should be. The defendant, as the plaintiff’s father, had an insurable interest in his life and could and did take out this insurance without plaintiff’s consent. As the insured, he incurred no obligations and clearly is entitled to no benefits as long as there exists an original or contingent beneficiary, unless the recital in the policy that the insurance was intended for his education overrides the many provisions of the policy giving the defendant the absolute control during the running of the term with power of life and death over its obligation, and at the end of the term the right to receive payment from the insurer. We do not think the mere expression of an intention to apply the proceeds to the education of the plaintiff has any such controlling effect. To so hold would require us to conclude that it was the purpose of the defendant to reserve to himself the absolute power over this policy and its proceeds during the term of the policy and then instantly upon the ending of the term to strip himself of all power.

To “intend” means, as defined by Webster “To take or regard in a certain mode or sense; to apprehend, understand or conceive; — To have in mind as a design or purpose. ’ ’ There is nothing in the definition to indicate irrevocability — just the contrary.

And when it is considered that it is sought to establish a binding gratuity against the father in favor of the son, it would seem reasonable to require that the language should be clear and convincing to that end. Our research has convinced us that such is the law. Woods v. Fifth Third Union Trust Co., Exr., 54 Ohio App., 303, 6 N. E. (2d), 987.

It is sought to support the plaintiff’s claim on the theory that the defendant declared himself a trustee in favor of the plaintiff. We find nothing in the record that justifies such a conclusion. To constitute a declaration of trust, the language must relate to the present. Language expressing future purposes, plans, designs or intentions are inappropriate to create a trust. This is the rule stated by Scott on Trusts, and we know of no conflict on the subject.

We shall consider the cases relied upon by plaintiff’s counsel.

The first is Norris v. Norris (Ohio App.), 57 N. E. (2d), 254. The first distinction between that case and the case at bar is that in Norris v. Norris the court was not considering a gratuitous declaration. The action was between a divorced couple. The wife had entrusted her property to her husband. It was admitted that the husband became obligated to her thereby. The only dispute was whether a debt or a trust had been created. The court found that the husband had agreed to keep the wife’s property as a separate fund which was inconsistent with the idea of a debt and consistent with the idea of a trust, and so held. The case certainly does not require a holding that a trust is created by a declaration by one starting to create a fund by using his own money which is intended for a certain purpose.

Counsel rely also on DeLeuil’s Exrs. v. DeLeuil, 255 Ky., 406, 74 S. W. (2d), 474. The facts in that case are involved and it would extend this opinion unduly to consider them in detail, but they show an unmistakable intent to constitute the declarant a trustee of specifically identified property immediately. All his words and actions indicated that he intended to become bound at once as a trustee to hold the property for the beneficiary.

Flanders v. Blandy, 45 Ohio St., 108, 12 N. E., 321, sheds much light upon the principles that should govern in the decision of this case. In that case a father set apart certain United States bonds as a gift to his daughter, but he never delivered them to her. Later he wrote his daughter that he had invested the proceeds of the bonds in a certain business and that if she did not want that investment he would pay her the face value of the bonds and enclosed his written promise to that effect, which the daughter accepted and retained. After the father’s death, the daughter filed suit on this promise. The court discussed the subject of gifts and trusts, and held that, as no gift was effected because of a failure to deliver tbe bonds to the donee and as no trust was intended,' the promise of the father was without consideration and unenforceable.

At pages 116 and 117 the court says:

“It is obvious and well settled by authority that before the owner can be held as a trustee for the benefit of a mere volunteer, there must be a distinct, perfect and unequivocal declaration of trust. There should be an expression of an intention to become a trustee, not that the owner should use technical words or language, but he should declare in unmistakable terms that he means to stand in a fiduciary relation to the object of his bounty.”

We find no such unmistakable language in this policy.

For these reasons, the court finds for the defendant.

Judgment for defendant.

Hildebrant, P. J., concurs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ware, an Infant, Appellant, v. City of Cincinnati, Appellee.
    (No. 7301
    Decided January 28, 1952.)

      Messrs. Wetland,. Solinger & D’Angelo, for appellant.

      Mr. Henry M. Bruestle, city solicitor, Mr. J. B. Qrause and Mr. Maurice W. Jacobs, for appellee.
   Per Curiam.

The trial court sustained a demurrer-to the petition herein for failure to state facts sufficient to constitute a cause of action, and the plaintiffs not desiring to plead further, the court dismissed the petition. The appeal is, therefore, one on questions of law only.

The pleaded facts are set forth in the opinion of the trial court, reported in 98 N. E. (2d), 102, with which this court is in substantial accord.

Supplementing the conclusions reached by Bader, J., we distinguish this case from previous similar ones decided by this court, together with others cited to the court, involving the duty of a municipality under Section 3714, General Code, to keep its streets and public ways open, in repair, and free from nuisance, by pointing out that, the public generally did not have free and open access to the area here involved, wherein it is alleged the nuisance existed, but was excluded therefrom by a substantial, effective, ornamental concrete wall, approximately four feet high and a foot in width.

In 28 Words and Phrases (Perm. Ed.), 945, nuisance is defined as:

“A nuisance is something wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights. The unauthorized or unlawful obstruction of a street is a nuisance, while that which is authorized by competent legal authority cannot in law constitute a nuisance.”

Construction of the ventilator was authorized by competent legal authority and the area about it was enclosed and barred to the public so that it was not a public ground or public way mentioned in Section 3714, General Code, and the plaintiff, be he child or adult, had no legal right to enter the area in which the ventilator was located. And, of course, the doctrine of attractive nuisance does not obtain in Ohio.

We recognize that a municipality may be liable for negligence in performing or failing to perform a corporate duty (City of Hamilton v. Dilley, 120 Ohio St., 127, 165 N. E., 713; Yackee, Admx., v. Village of Napoleon, 135 Ohio St., 344, 21 N. E. [2d], 111; Kocher v. City of Barberton, 140 Ohio St., 240, 42 N. E. [2d], 977), and on the basis of qualified nuisance, as set forth in paragraph two of the syllabus to Wall v. City of Cincinnati, 150 Ohio St., 411, 83 N. E. (2d), 389, which is as follows:

“As distinguished from absolute nuisance, a qualified nuisance or nuisance based on negligence consists of anything lawfully but so carelessly done or permitted as to create a.potential and unreasonable risk of harm which results in injury to another. (Paragraph three of the syllabus in the case of Taylor v. City of Cincinnati, 143 Ohio St., 426, approved and followed.)”

Decision of the instant case is, therefore, reduced to a consideration of the fundamental concepts of negligence and proximate cause.

In 39 Ohio Jurisprudence, 219, Section 5, it is stated :

“In order that the injury constitute an actionable tort, there must be a legal duty — imposed by statute, by ordinance, by the principles of the common law, or otherwise — owing, by the one committing the injury, to the one injured, which he has failed to discharge or perform. In the absence of such a duty, any damage caused is injury without wrong, damnum absque injuria. Unless there is some contract, duty, or service which a party is bound to fulfill, there can be no negligence, fault, or breach of the obligation.”

Extended discussion which will not be reiterated here is contained in the following sections, to which reference is made.

Paraphrasing the text, at page 224, we state that liability depends upon the natural and probable connection between a breach of duty toward the plaintiff, in other words, a tort, and the alleged injurious consequences, and does not extend to consequences which cannot be regarded as the natural results of any given conduct and which, on that account, could not by ordinary forecast be anticipated.

Had there been no screen at all around the aperture between the ventilator covering and the sidewalk level, we fail to see that any condition would have existed creating a potential and unreasonable risk of harm.

Plaintiff was a trespasser and the ventilator was capped, so that it was not an open pit. In order to fall into the subway, one had to crawl through space between the sidewalk level and the cover, so that it seems too far fetched and unforeseeable that even the whim of a child would induce crawling through the opening into the darkened space.

Without reference to questions of contributory negligence, which have a place herein, under the allegations of this petition, giving every favorable intendment to the pleader, we are of the opinion that the allegations contained therein are insufficient to state a cause of action based on either nuisance or negligence.

The judgment is affirmed.

Judgment affirmed.

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


author: Ahl, J.

text:
    Ridenour, Appellant, v. Lile, Appellee.
    (No. 937
    Decided October 17, 1952.)

      Messrs. Campbell, Thompson é Finefrock, for appellant.

      Mr. Howard A. Traul, for appellee.
   Ahl, J.

Plaintiff in the trial court instituted an action against the defendant on an account, claiming there was due him from the defendant the sum of $1,764.24, with interest from April 25, 1951, for seven oows sold and delivered by plaintiff to defendant.

To this petition, defendant filed an answer and cross-petition.

Defendant’s answer denies each and every allegation in plaintiff’s petition.

For his cross-petition, defendant adopts the allegations of his answer, and alleges that on April 25,1951, plaintiff sold at a public sale held on plaintiff’s farm near London, Ohio, certain cows which plaintiff represented to be free from tuberculosis and Bangs disease; that plaintiff represented further that such cattle had been tested by the state of Ohio, and tested negative; that defendant attended such sale and, relying upon plaintiff’s published and oral representations concerning the cattle, purchased seven cows, all of which were either afflicted with Bangs disease or had been exposed to the same.

Defendant alleges further that the cattle were delivered to him at the Spot Farm, Logan county, Ohio, where defendant conducts a registered cattle sales business, that the cattle shortly after arrival at the farm showed the effects of Bangs disease, and that upon being tested they were found to be afflicted with such disease or to have been exposed thereto.

Defendant avers that by reason of the false and fraudulent representations of plaintiff, defendant’s registered cattle were afflicted and defendant’s premises were contaminated with the dangerous, communicable and infectious Bangs disease; that his business of selling registered cattle has been disrupted and curtailed; and that he has been compelled to sell a substantial number of registered breeding cattle for slaughter on account of said cattle being afflicted with Bangs disease, which was communicated to them from the cattle purchased by defendant from plaintiff.

Defendant alleges further that by reason of plaintiff’s false, fraudulent and wrongful conduct defendant has been compelled to expend $1,000 for the testing and treatment of his cattle, and that he has been damaged in the amount of $30,000 by reason of the loss in value of his cattle and the disruption and curtailment of his business of selling registered breeding cattle.

Defendant, in his cross-petition, prays for a judgment against the plaintiff in the sum of $31,000.

To this cross-petition, plaintiff filed a reply wherein he denies each and every allegation contained in the cross-petition.

At the conclusion of plaintiff’s case in chief, defendant’s motion for a verdict in his favor was overruled by the court.

At the conclusion of all the testimony, plaintiff’s motion that the jury be instructed to return a verdict in favor of the plaintiff upon defendant’s cross-petition was overruled by the court.

Upon the issues raised by the pleadings, testimony, exhibits, and the charge of the court, the cause was submitted to the jury which returned the following verdict, agreed to by all twelve members thereof:

“We, the jury, being duly impaneled and sworn, find upon the issues joined between the plaintiff and defendant upon the matters set out in the plaintiff’s petition, in favor of the defendant.

“We further find upon the issues joined between the defendant and the plaintiff upon the matters set up in the defendant’s answer and cross-petition, in favor of the defendant, and that there is due to the defendant from the plaintiff the said E. M. Ridenour, the sum of no dollars.

“And we do so render our verdict upon the concurrence of 12 members of our said jury, that being three-fourths or more of our number. Each of us said jurors concurring in said verdict signs his name hereto this 1st day of May, 1952.”

Plaintiff’s motion for a judgment notwithstanding the verdict was overruled by the court and judgment was rendered as follows:

“This matter came on for further hearing on plaintiff’s motion for judgment upon the pleadings, notwithstanding the said verdict, and the court having heard the arguments of counsel and being fully advised, finds that said motion is .not well taken and is accordingly overruled.

“It is therefore ordered, adjudged and decreed by the court that plaintiff’s motion be and is hereby overruled.

‘ ‘ The jury in this action having, on a former day of this court, rendered a verdict against the plaintiff and for the defendant.

“It is therefore considered, ordered and adjudged by the court that the said defendant go hence without day, and recover from plaintiff his costs herein expended to all of which plaintiff excepts.

“Approved: Elmer M. Godwin, Judge.

“Campbell, Thompson & Finefrock, attorney for plaintiff.

“Howard A. Traul, attorney for defendant.”

Thereafter, a motion for new trial filed by plaintiff was overruled by the court, with exceptions saved for plaintiff. From that judgment, plaintiff appeals to this court on questions of law.

Plaintiff assigns three grounds of error.

1. The trial court erred in improperly allowing defendant’s exhibit E to be introduced into evidence.

2. The trial court erred in not granting the motion for judgment notwithstanding the verdict.

3. The trial court erred in not granting a motion for a new trial.

Plaintiff’s first assignment of error is not well taken, as defendant’s exhibit E was admissible and could properly be considered by the jury in determining the extent of defendant’s business, which, in his cross-petition, he claimed was disrupted and curtailed by the presence of the diseased cattle on the Spot Farm.

Plaintiff’s second assignment of error is not well taken. The pleadings raise an issue of fact as to damages sustained by defendant. An examination of the record shows substantial credible evidence from which a reasonable conclusion might be drawn that defendant was damaged by the delivery of the seven cows to the Spot Farm. The action of the trial court in overruling plaintiff’s motion for a judgment notwithstanding the verdict was not erroneous and was in line with the decisions of the courts. Krueger v. Schoenling Brewing Co., 82 Ohio App., 57, 79 N. E. (2d), 366; McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225; Kenny v. Metropolitan Life Ins. Co., 82 Ohio App., 51, 80 N. E. (2d), 677; Robertson v. City Produce & Commission Co., 78 Ohio App., 471, 70 N. E. (2d), 778; Ames and Buckingham v. Sloat, Wright, 578.

Plaintiff’s third assignment of error, namely, that the trial court erred in not granting plaintiff’s motion for a new trial, is well taken as to ground six contained in the motion for a new trial. Ground six is as follows: “The verdict of the jury is contrary to law.”

It will be noted that the jury, in its verdict herein, found upon the issues joined between the plaintiff and defendant on the matters set out in plaintiff’s petition in favor of the defendant, and further found upon the issues joined between the defendant and the plaintiff, on the matters set up in defendant’s answer and cross-petition in favor of the defendant, and that there was due the defendant from the plaintiff, E. M. Ridenour, the sum of no dollars.

Section 11420-19, General Code, provides as follows:

“When by the verdict either party is entitled to recover from the adverse party, the jury must assess the amount of the recovery in its verdict. ’ ’ '

In this action, plaintiff sought to recover money from the defendant and the defendant sought to recover money from the plaintiff. When the jury found in favor of the defendant on defendant’s cross-petition it was required to assess the amount to which defendant was entitled to recover, and its failure to do so was contrary to law.

This court has not been able to find any cases interpreting Section 11420-19, General Code. However, the Supreme Court of Oregon in the case of Klein v. Miller, 159 Ore., 27, 77 P. (2d), 1103, 116 A. L. R., 820, involving the interpretation of a similar statute, held, as disclosed by the first A. L. R. headnote:

“In a personal-injury action wherein defendant set up a counter-claim, a verdict reading: ‘We, the jury, * * * find * * * for the plaintiff and assess his damages at the sum of $ no damages, ’ is not sufficient to support a judgment for defendant, where a statute provides that a jury returning a general verdict in an action for the recovery of money shall also assess the amount of recovery.”

Also, in the case of McLean v. Sanders, 139 Ore., 144, 7 P. (2d), 981, a verdict reading, “We, the'jury, duly impanelled to try the above entitled cause, find our verdict for the plaintiff and against the defendants, and assess plaintiff’s general damages in the sum of no dollars, and further assess punitive damages against defendants in the sum of no dollars,” was held to be insufficient to support a valid judgment because it was impossible to ascertain from such verdict whether the jury intended to find for the plaintiff or the defendants.

In the present case, upon the return of the verdict the trial court erred in accepting same. It. was the duty of the trial court to point out this defect to the jury and send it back with instructions either to assess the damages recoverable by defendant from plaintiff or else return a verdict finding a certain definite sum due plaintiff from defendant on plaintiff’s petition, a certain definite sum due defendant from plaintiff on defendant’s cross-petition, strike a balance and make a finding of a definite sum in dollars and cents due éither plaintiff or defendant, as the computation showed.

This error rendered the entire verdict invalid both as to the issues raised by the petition and the answer thereto and as to the issues raised by the cross-petition and the reply.

Furthermore, defendant, answering plaintiff’s petition by general denial, could not offer evidence proving or tending to prove that the cows purchased by him were not as represented and that he was damaged thereby. Such a defense is an affirmative defense and must be affirmatively pleaded. His evidence, as shown by the record, shows without conflict that the defendant received the cows set forth in plaintiff’s petition and that he did not pay for the same.

It therefore follows that that part of the verdict wherein the jury found for defendant and against plaintiff upon the matters set out in plaintiff’s petition is against the manifest iveight of the evidence.

For the reasons mentioned, the judgment of the trial court is reversed and the cause remanded to that court for a new trial and further proceedings according to law on the issues joined between the plaintiff and defendant upon the petition and cross-petition and the reply to the cross-petition, or upon amended pleadings.

Judgment reversed.

Middleton, P. J., and Guernsey, J., concur.


author: Wiseman, J.

text:
    United Electrical Radio & Machine Workers of America, Local 755, et al., Appellants, v. Kraft et al., Appellees. Local 801, United Electrical Radio & Machine Workers of America et al., Appellants, v. Elsmer et al., Appellees.
    (Nos. 2098 and 2099
    Decided December 11, 1952.)

      Messrs. Davis, Davis & Handelman and Mr. Bussell N. Chase, for appellants.

      Messrs. Matthews & Alticlc, for appellees.
   Wiseman, J.

These cases are submitted on motions of defendants, appellees herein, to dismiss the appeals on questions of law and fact on the ground that the order appealed from is not a final order, and for the failure to file appeal bonds.

Identical questions are raised in cases Nos. 2098 and 2099. Therefore, one opinion will suffice.

If the order appealed from is a final order, the failure to file appeal bonds as provided by Section 12223-6, General Code, requires this court to dismiss, the appeals on questions of law and fact, and retain the causes as appeals on questions of law (Section 12223-22, General Code), and fix the time within which the appellants may prepare and file bills of exceptions, assignments of error and briefs. Supplement to Rule YII of the Rules of the Courts of Appeals and Section 11564, General Code.

Is the order appealed from a final order ? The order appealed from, among other things, overruled the motion of plaintiffs for a preliminary injunction. There is case law in Ohio to the effect that an order overruling a motion to vacate a temporary injunction in a suit where the ultimate relief sought is an injunction is not a final order. May Co. v. Bailey Co., 81 Ohio St., 471, 91 N. E., 183; Jones, Treas., v. First National Bank of Bellaire, 123 Ohio St., 642, 176 N. E., 567. In the cases at bar, the ultimate relief sought is permanent injunctions. In our opinion, the rule applicable to an order overruling a motion to vacate a temporary injunction should apply to an order refusing a temporary injunction.

In other jurisdictions, it is held that an order refusing a temporary injunction is not a final order. In 2 American Jurisprudence, 925, Section 123, it is stated:

“On the other hand, no appeal lies from decrees which are merely interlocutory, such as the granting or refusing of a temporary injunction, some courts basing their decisions on the ground that the action of the trial court is discretionary and will not be reviewed in the absence of an abuse of discretion. The granting or refusing of an injunction pendente lite or of an order made on a motion to dissolve an injunction, which does not otherwise dispose of the case, is also an interlocutory decree and not appealable.” (See cases cited.)

In 1 High on Injunctions (Fourth Ed.,), 1639, Section 1693, it is stated :

“The right of appeal from an order of a court of original jurisdiction, granting or refusing an interlocutory injunction, has given rise to much apparent conflict of authority. Such conflict is, however, largely due to the difference in legislation prevailing in the different states touching the right of appeal in general, and the nature or character of the order from which an appeal will lie. Independent of legislation, and upon principle as well as authority, it is believed that the true doctrine is, that an order either granting or refusing a preliminary injunction, being merely an interlocutory order, made during the progress of the cause, does not partake of the nature of a final judgment or decree to such an extent as to warrant an appeal therefrom, or to justify a court of review in revising the action of the inferior court upon such question.” (See eases cited.)

In our opinion the action taken was not a final order within the meaning of Section 12223-2, General Code.

Other matters embraced in the order appealed from unquestionably do not constitute a final order from which an appeal may be taken.

The motions to dismiss the appeals are sustained.

Motions sustained.

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


author: Doyle, J.

text:
    Schwartz, Appellee, v. Gross et al., Appellants.

      (No. 4313
    Decided December 10, 1952.)

      Mr. J. Edward 8chens, for appellee.

      Messrs. Holub & Holub, for appellant.
   Doyle, J.

Robert Schwartz instituted an action in the Municipal Court of Akron, in which he asserted that Emil C. and Rose K. Cross (husband and wife) expressly warranted that a grand piano which they sold to him “was in good condition and had an excellent tone, and the plaintiff was induced to purchase said piano upon said representation.” The plaintiff further claimed that, at and before the sale, the piano was not in good condition, “by reason of it having a split in the sound bridge and a dry pin block, which prevented it from keeping in tune”; that the defects were not discovered until the elapse of about six months; that the plaintiff has rescinded the sale and offered to return the instrument; and that, because of the breach of warranty, damage has accrued in the amount of $375 — the amount paid for the piano.

The defendants denied a warranty, and, among other things, alleged “that the plaintiff was given an opportunity to and did fully and completely examine the * * * piano at the time he took possession, and that said piano was in good condition at that time. ” They prayed for judgment in their favor.

Under the issues so joined, the trial judge, without the intervention of a jury, .entered judgment for the plaintiff in the amount requested. This judgment is the final order from which the appeal has been taken. We are asked to reverse the judgment and enter final judgment for the defendants below, the appellants here.

Error is assigned in the following respects:

“1. In * * * finding that the advertisement in the Akron Beacon Journal, stating that the piano was in ‘good condition’ was a warranty on which the plaintiff could rely.

“2. In finding that there was a breach of warranty.

“3. In finding that there is an implied warranty in the sale of secondhand goods.

“4. In finding that plaintiff attempted to rescind the sale within a reasonable time.”

At the outset of our consideration of the case, the motion of the appellee to “strike” the bill of exceptions from the record must be sustained. It was not filed in the trial court within the time limitation. Under such circumstances, this court is incapacitated “to consider the contents * * * for any purpose.” Jarboe v. Workingmen’s Overall Supply Co., 60 Ohio App., 540, 22 N. E. (2d), 416; 2 Ohio Jurisprudence (Part 1), Appellate Review, Section 374.

There has been, however, entered of record, findings o'f fact and conclusions of law made by the trial court pursuant to the provisions of Section 11421-2, General Code. The facts so found to exist are therefore brought upon the record, and this court is under duty to consider them notwithstanding there is no bill of exceptions. 2 Ohio Jurisprudence (Part 1), Appellate Review, Section 294, and cases therein cited.

The findings and conclusions appear as follows:

“Conclusions of Fact

“This cause now coming on for hearing and a jury - being by the parties in open court waived, was submitted on the pleadings and evidence.

“The court on the request of the defendants that its conclusions of fact be stated separately from its conelusions of law, finds as its conclusions of fact that on May 7,1950, the defendants, who were the owners of a Schumann grand piano, caused to be published in the Akron Beacon Journal an advertisement which read as follows:

'Baby Grand Piano, good condition, excellent tone. Call Un. 7044 after 6 p.m.’

‘ ‘ That the plaintiff, after reading the advertisement, looked at the piano at the defendant’s home; that on July 5, 1950, the plaintiff agreed to purchase the instrument for $375 and a payment of $25 was made; that on July 10,1950, the balance of purchase price was paid and the plaintiff caused the piano to be delivered at his home at 551 Palisades Drive, Akron, Ohio, which was a newly-built home, but was not yet carpeted; that the piano was out of tune; that he did not have the piano tuned because the carpet had not yet been laid in the new home. The carpeting was completed on or about November 1,1950, and as soon as the carpet was laid, the plaintiff undertook to have the piano tuned; that the tuner was unable to come to the plaintiff’s home until in December, 1950, and upon examination of the instrument, found that tuning would not hold because the pinblock had dried out. The tuner applied fluid treatment and returned on January 12,1951, for tuning and then found that the pinblock had not responded to the fluid treatment and also found that the treble-string bridge was cracked about % of an inch; that the split was more than one year old; that the piano was entirely unfit for use without being repaired ; that it will cost about $400 to repair the piano; that on or about February 17, 1951, plaintiff offered to return the piano and demanded return of his down payment; that down payment was not returned to plaintiff; that plaintiff still has possession of the piano; that the defendants represented the piano to be in good condition except it needed tuning; that the plaintiff knew nothing about pianos, and that an examination by the plaintiff would not have revealed the existing defects. The court further finds that, prior to the sale of this piano, it was represented and warranted by the defendants to the plaintiff that the piano ‘is in good condition’; that in truth and fact the piano was not in good condition but it had a % of an inch crack in the treble-string bridge and that the block had dried out; that it would cost about $400 to repair piano; that such representations and warranty made by the defendants to the plaintiff were false; that the plaintiff was justified in relying upon such representations and warranty, and that by reason of such reliance upon said representations and warranty the sale was made.”

“Conclusions of Law

“The purchaser of the used piano, relying upon representations of the seller that the piano ‘is in good condition’ is entitled to rescind the sale and recover the full amount of the purchase price and return the piano to the seller when the piano was found to have a dried pinblock and a ^-inch crack in the treble-string bridge.

“A party selling articles for a specific purpose implies and warrants that they are fit for that purpose and the failure of such warranty is ground for rescission of a contract based upon it.

“Upon breach of warranty, the buyer may at his election rescind the contract, then return or offer to return the goods and recover the price or any part thereof which has been paid, but notice must be given within a reasonable time of the election to rescind.

“Notice by the buyer was made within a reasonable time where the contract was entered into on July 10, 1950, and a notice of election to rescind was made on February 17, 1951, where the evidence shows that the buyer, because of not having carpet in his new home and because of delay in getting a piano repair man, was unable to discover the existing defects and where the buyer made a reasonable effort to ascertain the defects. ’ ’

Discussion will not be made of the common-law rules relative to warranties of quality, condition or fitness in the sale of secondhand articles, because the statutes of Ohio in the language of the Uniform Sales Code are applicable to such sales. See: 151 A. L. R., 446, annotation; Meyer v. Packard Cleveland Motor Co., 106 Ohio St., 328, 140 N. E., 118, 28 A. L. R., 986.

In looking to the statutes, we find Section 8392, General Code, which provides:

. “Express warranty. Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.”

The first “conclusion of law” set forth above indicates that the court found that the language of the advertisement in the newspaper was an express warranty, and that it induced the sale. Ergo, the court determined that the language constituted an ‘ ‘ affirmation of fact” and was not “a statement of the seller’s opinion” under the terms of the statute. To this question, we now direct our attention.

The distinction between what are statements of fact and what are expressions of opinion involves a discrimination, as pointed out by Professor Samuel Williston, between expressions which gradually shade from one to the other. 21 Harvard Law Review, 555. The statements that a horse is sound or that an article is in good condition, and other similar statements, have been a prolific source of controversy over the generations. While many of the older cases held that such statements might be a matter of opinion, the cases in recent years, in a majority of instances, have held that such statements, positively made in such a way as to form a part of the inducement of a sale, are warranties, or at least that they present questions of fact for a jury to decide. In many of the cases, nothing is said about the seller’s intention. In other cases, it is stated: “Any affirmation made at the time of sale as to the quality or condition of the thing sold will be treated as a warranty if it was so intended.” Polhemus v. Heiman, 45 Cal., 573, 578. In McLennan v. Ohmen, 75 Cal., 558, 17 P., 687, the court, after stating the foregoing rule, said (at p. 561): * * whether it was so intended, and the purchaser acted upon it, are questions of fact for the jury.” It appears that, under the Sales Code of this state, the question of intention is not of controlling importance. See: 35 Ohio Jurisprudence, Sales, Section 130, and cases therein cited.

With this background, we again look to the Code and find Section 8456 (definitions of words and phrases), where it is stated: “ ‘Quality of goods’ includes their state or condition.”

The newspaper advertisement may reasonably be determined to relate to the quality of the piano, which, by statute, included its “state or condition.” When the word “good” is used to describe the “quality” or “condition” of a chattel, it may be found to be an affirmation of fact that the chattel is sound, reliable and right, as opposed to the characterization “poor condition.” Saunders v. Cowl, 201 Minn., 574, 277 N. W., 12, 13-14.

The Supreme Court of Minnesota in the above cited case (Saunders v. Cowl), when treating the question of the express warranty of a tent, said:

“1. Provision in written contract that goods are to be in good condition when delivered is a warranty of quality.

“2. Where a buyer examined goods prior to contract of sale and the examination did not disclose the particular defects later complained of, it will be presumed that the buyer relied on a written warranty in the contract of sale.”

In the case before us, we hold the law to be that quality and' condition relate to the same thing, and may be the subject of express warranty; and when representations and statements of and concerning the quality and condition of chattel property, the subject of a sale, are made, a representation that the chattel is “in good condition” may be reasonably found to be an affirmation of fact and an express warranty. In other words, it may be found to be an affirmation that the chattel has in adequate degree those properties which a thing of the kind ought to have.

We are of the opinion that the finding by the trial court on the question of express warranty is not contrary to law. Whether it is against the weight of the evidence, under the circumstances extant, we are unable to determine, because of our incapacity to look to the bill of exceptions.

It is stated by the defendant that the plaintiff did not rely on the newspaper representation, but that he inspected the chattel and ascertained for himself its condition. The finding of fact is that “the plaintiff knew nothing about pianos, and that an examination by the plaintiff would not have revealed the existing defects.” (In this review, we must accept this finding as true.) The rule applicable to this situation is stated as follows: ‘ ‘ The buyer may rely on the affirmation of the seller rather than his own inspection where * * * the inspection fails to reveal to him defects, either because of their being latent and concealed or because of the buyer’s inability to perceive and appreciate the defects from such inspection.” Saunders v. Cowl, supra. And see: 1 Williston on Sales (Revised Ed.), Section 208; Crescent Cotton Oil Co. v. Union Gin & Lumber Co., 138 Tenn., 58, 195 S. W., 770; Woods v. Thompson, 114 Mo. App., 38, 88 S. W., 1126; Foote v. Wilson, 104 Kan., 191, 178 P., 430.

It is our conclusion that the judgment of the trial court comes within the bounds of the findings of fact— viz., a breach of an express warranty, a rescission of the contract within a reasonable time, and damages.

Whether the facts found to exist justify the judgment on the theory of an implied warranty, we do not decide. We find it unnecessary, in affirming the judgment on the theory of a breach of an express warranty, to determine whether the facts found to exist could form the basis of a breach of an implied warranty under the provisions of Section 8395, General Code.

Judgment affirmed.

Htjnsicker, P. J., and Stevens, J., concur.


author: Savoed, J.

text:
    The State of Ohio, Appellee, v. Johannsen, Appellant.
    (No. 631
    Decided April 21, 1952.)

      Mr. Herbert B. Freeman, prosecuting attorney, for appellee.

      Messrs. Miller é Miller, for appellant.
   Savoed, J.

On October 5, 1951, a jury in this cause returned a verdict finding the defendant guilty of rape with consent. The entry journalizing such verdict was filed as of October 8, 1951. On the same date, motion for new trial was overruled and the court, proceeding pursuant to Section 13451-20, General Code, referred defendant to the Lima State Hospital. The defendant was ultimately returned from the state hospital and on November 10, 1951, was adjudged by the court to stand committed to the Ohio Penitentiary for an indeterminate period of time. On the same day defendant filed notice of appeal on questions of law, thus seeking a review of this cause. The bill of exceptions was filed in the trial court on November 28, 1951. As of November 30, 1951, the trial court sustained objections filed on behalf of the state to the filing, allowance and signing of the bill of exceptions on the grounds that more than 30 days had elapsed since the date of the overruling of the motion for new trial, and as so disallowed, the bill of exceptions was returned to the clerk of courts.

The cause is now before this court on the motion of the state for an order dismissing the appeal of defendant and affirming the judgment of the trial court on the ground that the bill of exceptions was not filed in the trial court within the period provided by statute.

The last sentence of Section 13445-1, General Code, and the construction accorded thereto by the courts, is dispositive of the question here presented. That sentence reads as follows:

‘ ‘ The court shall fix the time within which such bill of exceptions or objections, shall be filed, which, in no case, shall be more than thirty days from the overruling of the motion for a new trial.” We italicize the significant portion of the section.

The provisions of Section 13459-4, General Code, permitting an appeal as a matter of right within 30 days after sentence and judgment are undoubtedly productive of confusion and tend to mislead counsel. in accomplishing strict compliance with the provisions of Section 13445-1, General Code. Nevertheless, the provisions of Section 13445-1 have necessarily been construed as mandatory and failure to file a bill of exceptions in the trial court within the time therein provided has been held fatal. State v. Edwards, 157 Ohio St., 175, 105 N. E. (2d), 259; Luff v. State, 112 Ohio St., 102, 146 N. E., 892; State v. Wildermuth, 86 Ohio App., 307, 89 N. E. (2d), 705; State v. Jarcho, 65 Ohio App., 417, 30 N. E. (2d), 444; State v. McFarland, 36 Ohio Law Abs., 97, 42 N. E. (2d), 923; State v. Kenney, 43 Ohio Law Abs., 63, 61 N. E. (2d), 895.

The achievement of more marked similarity with respect to the provisions of Sections 13445-1 and 13459-4, General Code, can be accomplished only by legislative intervention. In a circumstance such as presented by the instant case, the rights of the defendant might be preserved by the court foregoing ruling-on the motion for a new trial until after termination of the observation period.

By reason of the foregoing, we are required to sustain the motion to dismiss the appeal and, there being-no proper bill of exceptions before this court presenting the errors complained of, we can only affirm the sentence and judgment of the trial court.

Judgment affirmed.

Fess and Conn, JJ., concur.


author: Eoss, J.

text:
    Burnside, Appellee, v. The Cincinnati Street Ry. Co., Appellant.
    (No. 7703
    Decided February 24, 1953.)

      Mr. Robert F. Dreidame, for appellee.

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

The facts are stated in the syllabus.

There was no appeal from the action taken by the trial court upon the exceptions to the bill of exceptions, nor is there anything other than the statement of counsel in the briefs and oral argument to show what such action was and what occurred upon the hearing of such exceptions.

The trial resulted in a disagreement of the jury, and the appeal here upon questions of law is predicated upon the overruling by the trial court of motions for judgment for the defendant as a matter of law.

The defendant bases his claim for diminution of the record upon the theory that the plat upon the blackboard was drawn by counsel for plaintiff; that plaintiff constantly referred to same in his testimony; that the plat was referred to by counsel for plaintiff and defendant in argument; that the jury considered it during the trial; that such plat was thus incorporated automatically by reference as a part of the evidence in the case; and that it was, therefore, not necessary to formally offer the same in evidence in order to have it included in the bill of exceptions.

On the other hand, it is apparent that defendant had the right to offer the blackboard in evidence at the conclusion of all the evidence and to substitute a photograph thereof, and if he had done that the court would have committed error had it excluded the photograph from the bill of exceptions, it appearing that the same was a correct duplication of the drawing and necessary to an intelligent understanding of the testimony of a witness.

This matter is discussed in an annotation found in 9 A. L. R. (2d), 1044, 1124, but no support for defendant’s position is found therein.

This court considered the use of a blackboard during a trial in Cincinnati Street Ry. Co. v. Waterman, 50 Ohio App., 380, 198 N. E., 494, but the instant question was not there presented.

In O’Leary, Excr., v. Burnett, 87 Ohio App., 368, 95 N. E. (2d), 267, it was held that the provisions of Section 11572-0, General Code, may not be used to correct a bill of exceptions where the correction sought is to remedy a defect in such bill of exceptions, which was due to a mere failure of counsel to present the omitted matter to the court for admission in evidence. The case of Elser v. Parke, 142 Ohio St., 261, 51 N. E. (2d), 711, was cited by the court in that case as supporting authority for its conclusions therein.

The facts as presented by the defendant in this case show only that he failed to avail himself of an action which would have rendered his present application unnecessary.

The claim that there was an automatic introduction of the plat in evidence simply because it was referred to in the testimony and the arguments cannot be sustained.

The defendant has not brought himself within the provisions of Section 11572-a, General Code, and his application for diminution of the record must be denied.

Application denied.

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


text:
    The State of Ohio, Appellee, v. Thrash, Appellant.
    (No. 7608
    Decided November 24, 1952.)

      Mr. C. Watson Hover, prosecuting attorney, Mr. Robert N. Ziegler and Mr. Raymond E. Shannon, for appellee.

      Mr. A. Bruce McClure and Mr. Robert F. Oroneman, for appellant.
   Per Curiam.

The defendant, appellant herein, was indicted for and convicted of manslaughter. On defendant’s demand, the state filed a bill of particulars and later an amended bill of particulars, in which it was set forth that the defendant unlawfully killed one Mary Green while in the act of violating two criminal statutes, to wit, Sections 12512 and 6064-54, General Code.

Section 12512, General Code, makes it a crime to intermeddle maliciously and without the owner’s consent with the pipes and equipment used by another in the transmission of gas.

Section 6064-54, General Code, makes it an offense to manufacture intoxicating liquor without a permit to do so.

The evidence is abundant that the defendant did maliciously intermeddle with a gas valve or meter belonging to The Cincinnati Gas & Electric Company, knowing that a service pipe had corroded and that gas when turned on escaped from the pipe into a building. His act resulted in an explosion, causing the death of Mary Green and seriously injuring several others.

It is urged that Section 12512, General Code, being-in that division of the Criminal Code headed, “Offenses pertaining- to property,” is not the kind of a statute, the violation of which will furnish the unlawful act necessary to make an unintentional homicide manslaughter. While the offenses catalogued and defined under that heading relate or pertain to property, nevertheless, they involve the safety of the public and their violation may result in personal injury or death.

It requires very little reflection to conclude that the escape of gas is a menace to the safety of persons in the vicinity. What happened in this instance was to be reasonably anticipated as the direct result of the tampering with this equipment under the circumstances.

It is urged that the making of intoxicating liquor had nothing to do with this explosion and that the incorporation of that offense into the bill of particulars and allowing evidence to be introduced on the subject, although later excluded, was prejudicial.

There was evidence that at the time the defendant had equipment that could be used for making intoxicate ing liquor in the room to which this gas pipe led.

The defendant also took the witness stand and admitted that with knowledge that the pipe leaked he turned on the gas. He was subject to impeachment on cross-examination by evidence of his prior convictions of crime. Under all the circumstances, we are of the opinion that no error prejudicial to the defendant was committed.

By Section 13449-5, General Code, it is provided that no conviction shall be reversed “for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

For these reasons, the judgment is affirmed.

Judgment affirmed.

Hiluebrant, P. J.. and Matthews, J., concur.


author: Hurd, J.

text:
    In re Estate of Bowles: Morgan et al., Appellants, v. Heirs at Law of Bowles, Appellees.
    (No. 22564
    Decided October 27, 1952.)

      Messrs. Baker, Hostetler £ Patterson, Mr. H. F. Burns, Mr. R. T. Sawyer, Jr., Mr. A. P. Hadley, Mr. T. G. Thompson, and Messrs. Amerman, McHenry, Jones £ Morgan, for appellants.

      Messrs. Sayre, Vail £ Steele, Messrs. Pickrel, Schaeffer £ Ebeling, Mr. William A. Finn and Messrs. Klein, Diehm £ Farber, for appellees.
   Hurd, J.

This cause comes before this court at this time on a motion of the appellees for an order dismissing appellants’ appeal on questions of law and fact from an order of the Probate Court denying probate of a lost will and codicil, on the ground that the appeal does not invoke the chancery jurisdiction of this court, and that, therefore, the appeal, of necessity, must proceed only on questions of law.

With commendable zeal, able counsel have filed voluminous briefs arguing for their respective positions on the issues raised by this motion.

For the purposes of this discussion only, we quote without affirming the “statement of facts” contained in the original brief of appellants, as follows:

‘‘ Susan Harkness Bowles died resident of Cuyahoga County, Ohio, November 17, 1951. She had executed her last will and testament November 9, 1946 and a codicil thereto August 17, 1948. Following her death the original of the will could not be found; the original codicil was found. An accurate copy of the original will, conformed at the time the will was executed, was produced and received in evidence. In the Probate Court Charles A. Morgan filed an application to probate the lost last will and testatment and the original codicil.

“After a hearing in which none of the parties interested in sustaining the will or codicil other than Mr. Morgan were represented by counsel, and of which certain of the parties so interested had neither notice nor knowledge, including Geraldine Hart Brooks and Dorothy E. Hart, appellants herein, the court denied probate of either the lost will or the original codicil. The court, however, specifically found these documents ‘were duly executed and attested as a will and codicil thereto, respectively, by the said Susan Harkness Bowles, according to the provisions of law in force at the time of their execution, and that at the times of executing the same, the said Susan Harkness Bowles was of full age, of sound mind and memory and not under any restraint. * * V

“Miss Bowles in her will, so far as pertinent to the present problem provides as follows:

“In Item III she gives household furniture, jewelry and like personal effects to Mr. Morgan, directing that he dispose of it to other persons and [in] Item V she gives him $100,000.

“Item IY. ‘To each person employed by me at the time of my death I give and bequeath one hundred dollars ($100) for each full year during which he or she shall have been employed by me. ’

“Item YT devises the entire residue to the National City Bank of Cleveland, as trustee. Comprehensive powers of management are conferred. The trustee is directed to pay annuities from the net income and/or principal of the trust estate in sums ranging from $100 to $200 per month to then named individuals, but since some persons so named only receive an annuity upon the death of another, and because some are in ‘joint and survivorship’ form, there are, in fact, only six annuities.

“Continuing, Miss Bowles directed that all of the net income of the trust not expended in paying annuities shall be paid to Western Reserve University in memory of her uncle, John Reynolds Harkness, and his wife, to ‘maintain or assist in maintaining, a professorship at said University in some field, division or department of learning to be specified by its board of trustees. The name, ‘ ‘John Reynolds Harkness ’ ’ shall be used to identify said professorship, when reference is made to it, and I request that it be in the college of arts and sciences of said university.’

“The estate is inventoried at inore than $600,000. Upon the payment of the Morgan legacy, there will remain a gross estate of nearly a half million dollars, which, subject to taxes and expenses, is to be held in perpetuity for charitable purposes, subject only to the annuities.

“The codicil, the signed and duly executed original of which was presented and denied probate, reads in its entirety, except for formal introductory and closing paragraphs, as follows: !

“Item I. In item VI of my said last will and testament, and especially on page 3 and 4 thereof, I named certain persons to whom I directed the trustee of the residue of my estate to pay annuities from the net income and/or principal of the trust estate in certain specified amounts, payment of each amount to begin on the first day of the first calendar month following my death.

“1 now add to said list of persons, the name of Rose Tulley and direct said trustee to pay to her a similar annuity, in the amount of four hundred dollars ($400) per month, so long as she shall live. I make this provision for her, in addition to any amount which she may be entitled to receive pursuant to a general provision now in item IV of my said last will.

“Item II. In all other respects, I hereby ratify and confirm my said last will and all the provisions thereof.’

“ The Probate Court rendered no opinion * * * as to why the court refused to admit the duly executed original codicil to probate, except for a single sentence in the journal entry which says,

“ The court finds that the codicil dated August 17, 1948, was so dependent upon the terms and provisions of said last will and testament that it cannot be probated alone as a new or independent will. ’

“Geraldine Hart Brooks and Dorothy E. Hart, two of the annuitants under.the trust created by the will, knew nothing of the provisions' made for them in the will until April 8,1952, the time of the court’s entering its order overruling the application to probate the will and codicil. They first engaged counsel subsequent to April 8, 1952. The facts herein stated with respect to the lack of notice, lack of representation, and exclusion, all appear of record in the transcript of the hearings of February 14,1952, and April 8,1952 and in the affidavits attached to the motions 'of the appellants for a new trial, all of which motions were overruled by the Probate Court, April 30,1952.”

The single question here presented is whether, under the Constitution and laws of Ohio, appeals to' this court from a denial of the admission to probate of lost, destroyed or spoliated wills are appeals on questions of law and fact (chancery) or on questions of law only.

The procedure in such cases is defined by Sections 10504-35 to 10504-38, inclusive, General Code.

Section 10504-35, General Code, reads as follows:

“The Probate Court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated or destroyed subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, or before the death of such testatoi if testator’s lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, and it cannot be produced in court in as full, ample and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate.”

Section 10504-38, General Code, provides:

“If upon such proof, the court is satisfied that such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming incapable as aforesaid; or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, such court shall find and establish the contents of such will as near as can be ascertained, and cause them and the testimony taken in the case to be recorded in such court.”

Counsel for appellants argue that an action to probate a will is essentially and historically equitable in nature and, therefore, remains and partakes of the nature of a chancery action. They also argue that the “lost” will of decedent contained provisions for a testamentary charitable trust and that an action to establish, enforce, construe or terminate such a trust is equitable in nature and, therefore, requires that we consider this as a chancery case within the meaning of Section 6, Article IV of the Constitution of Ohio.

They argue further that because the codicil requires the “trustee” to pay an annuity and no trustee is named therein, the Probate Court was presented with the question whether, as a court of general equitable jurisdiction, it should appoint a trustee so that the trust would not fail. They argue further that the Probate Court, in denying probate to the codicil, necessarily construed it, and that since both the will and codicil create or involve trusts, the Probate Court in interpreting them was exercising its chancery powers.

This court recently had occasion to pass upon the historical argument and related questions in the case of In re Estate of Miller (unreported), No. 22447 in this Court of Appeals. In that case we decided (on April 14, 1952) that the proceeding to probate a lost, spoliated or destroyed will, under the applicable provisions of the General Code above cited and quoted, is purely statutory in nature and necessarily a proceeding on questions of law alone which includes consideration of the degree of proof required by statute. In principle, we see no real distinction between the instant case and the Miller case, on the single question here presented. In the Miller case, we had only the question of a partially destroyed or spoliated will, while here we have the question of an alleged lost will and an existing codicil thereto, as to both of which instruments the Probate Court denied admission to probate, as is set forth in the journal entries herein-before quoted in part.

We think that the assumed facts that the lost will creates a testamentary charitable trust and that the codicil “requires the ‘trustee’ to pay an annuity,” the trustee not being named, do not necessarily imply that the legal aspect of the proceedings is thereby changed from one of law to one of law and fact.

In our opinion, the character of a lost, destroyed or spoliated will, whether it be a simple will or one containing trust provisions, does not operate to change the nature of the statutory proceeding in which the proponents seek to cause it to be probated. In such case, the court does not look to the contents of the lost, destroyed or spoliated document for the purpose of determining whether the same may be admitted to probate under the provisions of Section 10504-35 et seq., General Code: The issue on this question is determined according to the applicable provisions of the Code upon the “proof” adduced upon hearing as to whether, to quote the statute, “such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming incapable as aforesaid; or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony.” Section 10504-38, General Code.

The proof in such cases is derived from evidence of surrounding facts and circumstances relevant to the claims of loss, destruction or spoliation of sufficient quantum, and quality to “satisfy” the court acting within the limits of sound discretion. We conclude, therefore, that the Probate Court was not required to “establish, enforce, construe or terminate a trust” nor was the Probate Court faced with the question of appointing a trustee “so that the trust would not fail” where, in pursuance of the applicable statutes, the court was not satisfied that documents containing such provisions should be admitted to probate.

Likewise, we think that the argument of appellants to the effect that the court in denying probate to the codicil and the will was necessarily construing and interpreting such instruments, and, therefore, exercising chancery powers, is untenable. In relation to the codicil, the court, through its journal stated in substance that it (the codicil) was so dependent upon the terms and provisions of the alleged lost will, that it could not be probated alone as a “new and independent will. ” Item I of the codicil refers particularly to item VI of the lost will and adds the name of a life beneficiary as an annuitant. It should be emphasized that we are not here deciding any questions pertaining to the merits of the case, and, therefore, we expressly disclaim any opinion as to whether the court erred in its conclusion in this respect. We simply declare that in determining the question, the trial court was not called upon to exercise chancery jurisdiction.

We have given attention also to the asserted claim that certain of the interested parties were not properly notified of the proceedings by reason whereof it is alleged that they were deprived of an opportunity to be present and to be represented at the hearing. These matters present questions of law only, which if properly raised may be considered if the cause comes to this court for trial on the merits.

The appellants, in addition to other arguments presented, have urged that the doctrine of dependent relative revocation applies in this case. It is argued that this doctrine is one of equitable origin where a testator revokes a will because he believes that another testamentary disposition of his is effective, when in fact it is not, and that in such cases a court of equity will not suffer the revocation to stand. Appellees, on the other hand, contend that this is an English doctrine “which is not the law in Ohio, nor in this country, and that it is not involved in this appeal, as it was not invoked or even referred to by the proponents before the Probate Court, and if arguable at all, it goes to the merits and not the nature of the appeal which is statutory and not equitable.”

At this stage of the case we do not have the benefit of either a transcript of the evidence or a bill of exceptions, but assuming the facts to be as presented by appellants, as set forth in their original brief, we are of the opinion that the doctrine of dependent relative revocation has no application. Furthermore, we are in accord with the contention of the appellee that this doctrine, if arguable at all, must be considered in relation to the merits of the case and not to the nature of the appeal which we conceive to be purely statutory.

We emphasize the proposition that the Probate Court as well as this court must be governed in these special proceedings by the applicable provisions of the General Code, and that deviation therefrom may not have judicial sanction.

The appellants have cited, among others, the following cases: Myers v. City of Defiance, 67 Ohio App., 159, 36 N. E. (2d), 162 (an action for declaratory judgment in Common Pleas Court where the relief prayed for affirmatively was equitable in nature); Sowers v. Cyrenius, 39 Ohio St., 29, 48 Am. Rep., 418 (an action originating in Common Pleas Court for the construction of a will containing a charitable trust); Gearhart v. Richardson, 109 Ohio St., 418, 142 N. E., 890 (an action originating in Common Pleas Court to construe a will creating a charitable trust); Palmer v. Oiler, Exr., 102 Ohio St., 271, 131 N. E., 362 (an action arising in this county to construe a will containing a valid testamentary charitable gift).

These cases bear no close analogy to the instant case on the issue here presented. In the matter of the construction of wills it is clear that the wills involved had already been admitted to probate and contained charitable or trust provisions which naturally invoke the jurisdiction of a court of equity. In the Myers case, sufra, the dominant relief prayed for being injunction, the action was clearly equitable in nature.

Appellants appear to rely strongly upon the case of Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397, which originated in the Common Pleas Court and was an action praying for partition of certain real estate and accounting for rents and profits. The court there held, in substance, that as all partition cases were originally cognizable in courts of chancery only, they must still be regarded as chancery cases and, therefore, appealable under such terms and procedures as may be provided by law. Prom this it is argued that an action to probate a will in the Probate Court was historically an equitable action and, therefore, that it remains and partakes of the nature, benefits and appealable rights of a chancery action. This argument is clearly untenable by reason of the holding in the early case of Morningstar v. Selby, 15 Ohio, 345, 45 Am. Dec., 579, decided in 1846, commented upon at length in appellees’ brief, the first paragraph of the syllabus reading:

“1. A court of chancery cannot entertain jurisdiction to set up and establish a lost or destroyed last will and testament. ’ ’

It is our view that that ease disposes of the contention that a proceeding to probate a copy of a lost, spoliated or destroyed will was historically a chancery action now appealable on questions of law and fact.

In addition to the Morning star case, supra, and the case of In re Estate of Miller, supra, we cite, but do not discuss, the following cases which, by analogy, are persuasive of our conclusion herein. Missionary Society of M. E. Church v. Ely, 56 Ohio St., 405, 47 N. E., 537; In re Estate of Gurnea, 111 Ohio St., 715, 146 N. E., 308; Squire, Supt., v. Bates, 132 Ohio St., 161, 5 N. E. (2d), 690.

We hold, therefore, that in Ohio, proceedings to admit to probate lost, spoliated or destroyed wills are purely statutory in nature and that irrespective of the contents of such documents, appeals to the Court of Appeals from a denial of the admission thereof to probate are not equitable in nature and, therefore, do not invoke the chancery powers of this court, requiring trials de novo.

For the reasons stated, the motion to dismiss the appeal on questions of law and fact will be granted, the appeal to be retained as one on questions of law, and appellants will be given a period of 30 days within which to file a bill of exceptions, in pursuance of Sections 12223-22 and 11564, General Code.

Judgment accordingly.

Skeel, P. J., concurs.

Thompson, J., not participating.


text:
    The State of Ohio, Appellee, v. Hollingsworth, Appellant.
    (No. 7663
    Decided October 6, 1952.)

      Mr. C. Watson Hover, prosecuting attorney, and Mr. Thomas Stueve, for appellee.

      Mr. Fred Murphy, for appellant.
   Per Curiam.

This is an appeal from a judgment on final hearing in a proceeding in habeas corpus, denying the petition and thereby leaving Leonard Hollingsworth in the custody of the sheriff of Hamilton county, Ohio, who, it was alleged, was unlawfully depriving him of his liberty.

At the trial, the sheriff produced the prisoner and the mittimus constituting his authority for the prisoner ’s detention. This mittimus was duly executed by a justice of the peace, reciting that the offense charged against him was “assault and battery,” that he had been found guilty as charged and sentenced to imprisonment in the county jail for “the term of fifty-five (55)” and ordered into the custody of the sheriff to remain until the expiration of his sentence.

Neither the docket of the justice of the peace nor a certified copy thereof was produced at the trial. The justice of the peace was permitted to and did testify that the commitment correctly sets forth the final judgment, as shown by his docket. It appears from his testimony that on February 8,1952, he had ordered a commitment of Hollingsworth for this same offense and that after Hollingsworth had been in jail for five days he was allowed his liberty on certain conditions and that he had violated these conditions by committing various offenses — failure to provide, a traffic violation, leaving the scene of an accident, reckless driving, crossing a double line and ignoring a stop sign. Hollingsworth pleaded guilty to these offenses, and the justice of the peace thereupon recommitted him to the county jail in the custody of the sheriff to serve the balance of his term. In the caption of the entry as copied into the commitment order is the parenthetical statement “(probation violation)” but there is nothing to indicate that that was the offense for which he was committed. The sheriff produced both commitment orders.

In the first commitment order the term of sentence is clearly stated as “sixty (60) days.”

We are of the opinion that the petitioner has failed to sustain the burden of proving that Hollingsworth was unlawfully deprived of his liberty. We are of the opinion that the production of the two commitment orders established a prima facie authority justifying his detention.

It is true that the second commitment does not expressly state that the fifty-five indicates the number of days, but when it is considered that he was convicted of assault and battery the maximum punishment for which is imprisonment for six months and a fine of $200, and when it is also considered that the law does not recognize parts of days in such situations, it does not seem unreasonable to hold that days were intended. This point was not raised by the petitioner.

Furthermore, we are of the opinion that the original commitment is sufficient authority for holding Hollingsworth for the balance of the term as provided therein without any credit for the time he was at large. Petticrew v. Webster, Supt., 63 Ohio App., 456, 27 N. E. (2d), 151. If the justice had no authority to place Hollingsworth on probation, his assumption of such authority would not invalidate the original commitment. Municipal Court of Toledo v. State, ex rel. Platter, 126 Ohio St., 103, 184 N. E., 1.

Our conclusion is that whatever errors or irregularities may be found in the proceeding before the justice of the peace, his jurisdiction to enter the judgment and commitment was not destroyed. They were errors committed while he was acting within his jurisdiction and are to be reviewed, if at all, by appeal and not by habeas corpus.

The judgment is affirmed.

Judgment affirmed.

HhjDebrant, P. J., and Matthews, J., concur.


author: Phillips, J.

text:
    La Flash, Appellant, v. Tiger et al., Appellees.

      (No. 3508
    Decided April 15, 1952.)

      Mr. Harry T. Rapport, Mr. William E. Pfau and Mr. William E. Pfau, Jr., for appellant.

      Mr. Michael A. Del Bene, for appellees.
   Phillips, J.

In this opinion plaintiff, appellant herein, will he called plaintiff, and defendants, appellees, Robert Tiger and his partners George Seefred, Jr., and William T. Wilson, who, while originally not sued, were by agreement of counsel made codefendants of Robert Tiger, will be referred to as defendants.

On December 15, 1949, plaintiff sold to George Cawley, in Detroit, Michigan, a 1945 International tractor and a 1942 Fruehauf, flat-bed, tandem trailer, for the total sum of $3,300. Cawley paid $300 in cash, and evidenced the balance .of his indebtedness to plaintiff by his note for $3,000 secured by a chattel mortgage on the trailer.

On December 24, 1949, Cawley sold the trailer to defendants for $600, after advising them that it was free and clear of all incumbrances, that he held a certificate of title to it, and that plaintiff was paid in full. Late in the afternoon of December 24, 1949, defendants found some tools in the trailer, as a result of which they telephoned plaintiff at Detroit and learned that plaintiff held Cawley’s note and unrecorded mortgage.

The evidence discloses that such mortgage subsequently was duly filed on December 27,1949.

Plaintiff sued defendants in the Court of Common Pleas to replevin the trailer. By answer, defendants contested plaintiff’s right of possession and by cross-petition prayed for damages for wrongful detention thereof.

At the close of all the evidence, the trial judge found as a matter of law that defendants had the right to possession of the trailer in question and directed the jury to return a verdict for the defendants on their cross-petition. The court submitted to the jury the question of the value of the trailer at the time of taking (which the sheriff appraised at $1,600, and bond in double the amount of which was posted by plaintiff), and the question of amount of damages to be fixed against plaintiff for the wrongful replevin of such trailer.

The jury fixed the value of the trailer at $1,200, returned a verdict for defendants in that amount, and found that defendants had suffered damage for the wrongful detention thereof in the amount of $3,300. The trial judge overruled plaintiff’s motion for judgment notwithstanding the verdict, entered judgment in favor of the defendants against the plaintiff for $4,500, and overruled plaintiff’s motion for a new trial.

Plaintiff appealed to this court on questions of law from the final judgment of the trial court, and by assignments of error contends that the trial judge erred to his prejudice in directing the jury to return a verdict for the defendants on the cross-petition as to the right of possession of the vehicle in question; in failing to submit the issue of the right to the possession of the vehicle to the jury; in submitting to the jury the issue of the loss of use of the vehicle claimed; in his general charge to the jury made after argument; in failing to sustain the plaintiff’s motion for judgment notwithstanding the verdict; in overruling the motion for new trial filed by the plaintiff; in failing to order a remittitur of such portion of the recovery which the defendants recovered on their cross-petition for the value of the trailer, which was not sustained by evidence; and contends there are “many errors appearing in the record to which objection and exception were taken.”

Arguing his assignments of error numbers one and two, plaintiff contends that the trial court erred in directing “a verdict in favor of defendant on the issue of the right of possession for the reason that he did not feel there was any evidence to submit to the jury on the issue of any bad faith, or notice on the part of the defendants.” Plaintiff claims there is testimony that defendants purchased such trailer “for less than one-third of its market value, from a total stranger,” a nonresident of the state, without complete investigation, when “the trailer itself gave evidences of being owned by someone other than the seller, according to the testimony of Bobert Tiger himself who said that the tires were ‘branded’ ”; that defendants called plaintiff only after the circumstances stated aroused their suspicion; that the jury “found that the trailer had a value of $1,200 which was double the amount paid for it by the defendants”; and that “all in all the purchase, rather than appearing to be bona fide, appears from the record to be most suspicious.”

Plaintiff supports his assignments of error numbers three and four that the trial judge erred to his prejudice “in submitting to the jury the issue of the loss of use of the vehicle claimed,” and “in failing to sustain the plaintiff-appellant’s motion for judgment n. o. v., ” by the citation of the rule allegedly applicable as announced in the first paragraph of the syllabus of the case of Hayes Freight Lines, Inc., v. Tarver, 148 Ohio St., 82, 73 N. E. (2d), 192, as follows:

“One who recovers the full value of a motor vehicle completely destroyed by the negligent acts of another, or the full value thereof less wreckage or salvage value where the vehicle is damaged beyond repair, may not also recover for the loss of the use of the vehicle.”

Counsel for plaintiff frankly admit that no Ohio court has passed upon the question presented as it applies to an action in replevin such as the one we review, but argue that “to hold that a different rule of damages applies in a replevin action to that which applies in a negligence action would be to ignore the basic rule that compensatory damages are to be awarded in both types of actions. ’ ’

In commenting upon the case of Romberg v. Hughes, 18 Neb., 579, 26 N. W., 351, plaintiff contends that the decision and rule announced in that case control and are applicable to the case we review, and by brief argues:

“The instant case graphically illustrates the absurdity of any other rule. As the record shows, defendants’ witnesses testified that the trailer had a value of between $300 and $600, yet in their cross-petition and argument defendants claim to be entitled to $8,100 for one year’s wrongful detention of this trailer. This is based on the testimony to the effect that the trailer had a reasonable rental value of $150 a week and that defendants were deprived of the use of the trailer for approximately one year before the case came on for trial.

“* * * For ho apparent reason the jury felt that the sum of $3,300 was proper for damages, though on the basis of this record, if damages are permitted for the wrongful detention of this property on the basis set forth in the trial court, there seems to be no reason why the jury should not have given the defendants the entire $8,100 claimed.”

With reference to the plaintiff’s assigned grounds of error numbers five and six that the trial court erred in ‘‘ overruling the, motion for new trial filed by the plaintiff-appellant herein” and erred “in failing to order a remittitur of such portion of the recovery which the defendants-appellees recovered on their cross-petition for that amount awarded for the value of the trailer which was not sustained by evidence,” plaintiff contends that since defendants testified that the trailer had a value of but $600, and there is no credible evidence that the trailer had a value of $1,200, the trial court should have ordered a remittitur of the amount of the verdict over and above $600; that “if there was any credible evidence that the trailer had a value of $1,200 then a new trial should have been ordered because clearly if defendants were able to purchase this trailer for half its actual value it should have created a jury question as to whether or not defendants were acting in good faith”; that “if the testimony of defendants is to be taken as conclusive as to the value of the trailer, the judgment should be in accordance with that testimony”; and that “a new trial should be granted as the issue of right of possession should have been submitted to the jury.” Finally, plaintiff contends that “in the event that this court finds that the trial court properly directed a verdict as to the right of possession, then” this “court should order a remittitur of” $600; that “the judgment for damages should be made contingent upon the return of the trailer”; and that\“if the trailer is returned the amount of the damages to be paid should be remitted to some figure commensurate with the value of the trailer.”

Upon the facts submitted to us for review, some of which are stated, supra, and the law applicable thereto, we conclude that the trial judge did not err to plaintiff’s prejudice “in directing the jury to return a verdict for defendants on their cross-petition as to the right of possession of the vehicle in question” or in failing to submit that issue to the jury, there being no evidence of fraud or bad faith.

By direction of the trial judge, the jury found for defendants on their cross-petition as to their right of possession of the trailer in question. Section 12069, General Code, provides that under such condition the jury “shall assess to him [them] such damages as they [it, the jury] think proper, for which, with costs of suit, the court shall render judgment in his [their] favor.”

Defendants were bona fide purchasers of snch trailer for value and without notice of any prior incumbrances, which incumbrances at such time were not a matter of record, and which mortgage was not filed until after purchase and sale of such trailer were consummated fully. See Sections 8560 and 8561, General Code; and Section 26.929, Michigan Statutes.

We cannot arrive at the conclusion which counsel for plaintiff ask us to reach that the trial judge erred in submitting to the jury the issue of the loss of use of the vehicle claimed. See 34 Cyclopedia of Law and Procedure, 1562.

While plaintiff contends by assignment of error that the trial judge erred to his prejudice in his general charge to the jury made after argument, he has not argued that claimed error orally or by brief. Accordingly, we do not pass upon that assigned ground of error.

We have not had too much trouble determining that the trial judge did not err to plaintiff’s prejudice in overruling his motion for a judgment to be entered in his favor notwithstanding the verdict of the jury returned against him, for the reason that, in our opinion, the record discloses no evidence warranting submission of the case we review to the jury on the question of fraud.

Prom a careful study of the evidence and the law applicable thereto, we conclude that the verdict of the jury is excessive in the amount of $2,000, and that the judgment of the Common Pleas Court should be reversed as against the manifest weight of the evidence and for failure to grant a remittitur, unless within 30 days of the date of the entry of this decision upon the docket of this court, the defendants accept a remittitur of the amount of the verdict in excess of $2,-500. In that event the judgment of the Couit of Common Pleas is affirmed in the amount of $2,500; otherwise it is reversed and the cause is remanded for further proceedings to be had in accordance with law.

Appellant’s counsel have failed to call our attention to “many errors appearing in the record to which objection and exception were taken,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon. ” Accordingly, we will not pass upon this assigned ground of error.

Judgment accordingly.

Nichols, P. J., and Griffith, J., concur.