text:
    The State of Ohio, Appellee, v. Haase, Appellant.

      (No. 22928
    Decided December 7, 1953.)

      Mr. Roger A. Zucker, for appellee.

      Messrs. Ulmer, Berne, Laronge, Olickman S Curtis and Mr. Robert L. Lewis, for appellant.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment entered in the Police Court of the city of Cleveland Heights, Ohio, finding the defendant guilty of a violation of Section 13044, General Code (Section 3773.24, Revised Code). The defendant is a part owner of a hardware store located at 2078 South Taylor Road, and known as the Barr Hardware Store. On April 5,1953, which was Sunday, or the first day of the week, an officer of the police department of the city of Cleveland Heights went to defendant’s hardware store and found it open for business, with the defendant in charge. One of the state’s witnesses testified that defendant told him the store was open for business seven days a week. The defendant did not take the witness stand in his own defense or by his own testimony dispute any of the material allegations of the affidavit which was filed on April 5, 1953, as the basis of this action. The defendant before trial filed a motion to qnash, claiming Section 13044, General Code (Section 3773.24, Revised Code), to be unconstitutional, and that the affidavit did not state an offense punishable under the laws of Ohio. The motion should have been designated, ‘ ‘ demurrer, ’ ’ particularly in raising the question of the constitutionality of Section 13044, General Code (Section 3773.24, Revised Code), as provided by Section 2941.58, Revised Code. Davis v. State, 32 Ohio St., 24; State v. Bateman, 7 N. P., 487, 10 O. D. (N. P.), 68. The trial court overruled the motion.

Upon trial, the defendant proffered testimony that hardware stores in cities and villages contiguous to the city of Cleveland Heights were open on Sunday, that his opening on Sunday was necessary to meet such competition, and that the following businesses were permitted to operate in the city of Cleveland Heights without being arrested for violating the Sunday closing law (Section 3773.24, Revised Code.): Drug

stores in which items of hardware (such as are for sale in defendant’s store) are offered for sale on Sunday; gasoline stations; garages; a radio and television sales and repair shop; real estate offices; a shoe store; a store selling garden and lawn equipment, seeds, fertilizers and the like; and other stores of like character, all of which evidence was excluded by the court.

The defendant claims the following errors:

“1. In overruling motion to quash.
“2. In exclusion of evidence of other businesses being operated and allowed to remain open on Sunday [said evidence being proffered by cross-examination of state’s witnesses and witnesses offered by the defendant] .
“3. In excluding the testimony of the arresting officer proffered on cross-examination as to what, in his opinion, was a work of ‘necessity.’
“4. In refusing to enter judgment for defendant at the close of all the evidence.
“5. In overruling defendant’s motion for new trial. ’ ’

Three questions are presented:

1. Did the state make out a case without proof that defendant’s business was not, as operated by him on April 5, 1953, one of “necessity” under the saving clause of the statute?
2. Is the statute constitutional? (Section 3773.24, Revised Code.)
3. Does the enforcement of the statute unequally, that is, causing defendant’s arrest for conducting his hardware business on Sunday, without interfering with others who conduct like businesses on Sunday which are not such as come within the saving clause of the act, constitute a violation of defendant’s constitutional rights under the Fourteenth Amendment of the Constitution of the United States and of Section 2, Article I of the Constitution of Ohio, guaranteeing to him equal protection under the law?

There is some authority in other states that one or more of the exceptions contained in the saving clause of the Sunday closing law, according to the facts of the case, must be negatived in the complaint and such negative fact established by the state in making out its case. 50 American Jurisprudence, 828. " But under the law of Ohio, unless such negative averment is necessary as a part of the description of the crime charged, it need not be alleged in the complaint or established by evidence as a part of the state’s case. In Billingheimer v. State, 32 Ohio St., 435, paragraph two of the syllabus provides:

“ 2. A negative averment to the matter of a proviso in a statute, is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it. ’ ’

See, also, Hirn v. State, 1 Ohio St., 15; Cheadle v. State, 4 Ohio St., 477; Becker v. State, 8 Ohio St., 391; Strenglien v. State, 17 Ohio St., 453; Moody v. State, 17 Ohio St., 111; Hale v. State, 58 Ohio St., 676, 51 N. E., 154; and 153 A. L. R., 1277 (paragraph 111, “exception not in the enacting clause”).

In the opinion of the Strenglien case, supra, at page 461, the court quoted from 1 Wharton’s American Criminal Law, Section 378, as follows:

“ ‘If provisos and exceptions are contained in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the provisos it contains. ’ ‘For all these are matters of defense, which the prosecutor need not anticipate, but which are more properly to come from the prisoner.’ ”

At the time this prosecution was commenced, Section 13044, General Code, defined the elements of the crime charged against defendant as keeping his hardware store open on Sunday for the transaction of general business. The exceptions to the statute were contained in separate sections, that is, Section 13045, General Code, and Section 13046, General Code, the first of these sections providing for the exception contended for by defendant. So that here not only is the exception contained in a separate clause of the statute, but in a completely separate section. The fact is that in the Revised Code, effective in Ohio as of October 1, 1953, these three sections have been put into a single section (Section 3773.24, Revised Code), but in separate paragraphs, and the recodification did not change the meaning or interpretation of our statutes.

Under the bigamy statute, Section 13022, General Code (Section 2905.43, Revised Code), the exception extends to one whose husband or wife had been absent continuously for five years next preceding the second marriage without being known to such person to be living within that time. The state need not negative such exception in the indictment and a defendant claiming to come within the exception must establish such claim as a defense. Strenglien v. State, supra.

Under the carrying concealed weapons statute, Section 12819, General Code (Section 2923.01, Revised Code), an exception is provided in Section 13448-4, General Code (Section 2945.76, Revised Code), that if a prudent person would be justified in carrying a weapon in defense of himself, property or family, under the circumstances, and the defendant was engaged in a lawful business such circumstances should require a jury to acquit defendant. The courts have been unanimous in holding that this exception to the carrying concealed weapons charge constituted an affirmative defense and that the state had no burden to negative it either in the indictment or on trial of the action. Porello v. State, 121 Ohio St., 280, 168 N. E., 135; Fink v. State, 40 Ohio App., 431, 178 N. E., 700; Hart v. State, 42 Ohio App., 501, 182 N. E., 534.

There is no doubt that conducting a general hardware business on Sunday does not come within the exception of “necessity” under the saving clause of the statute any more than would be true of carrying on a general drygoods business, a millinery business, a bakery business or grocery business, and all businesses of like character on Sunday. Of course, these businesses are very necessary as a part of our economic and social requirements, but this is not the meaning of the words, “work of necessity or charity,” as used in Section 3773.24, Revised Code (Section 13045, General Code). People can, by ordinary foresight, provide themselves with whatever goods seem convenient or necessary for their needs on days of the week other than Sunday. To provide against such business transactions on Sunday was the very purpose of the law. Judge Lieghley (formerly of this court), while on the Common Pleas Court of Cuyahoga County, in the case of Straka v. State, 16 N. P. (N. S.), 554, 25 O. D. (N. P.), 436, in holding the operation of a bakery on Sunday to be a violation of Sections 13044 and 13045, General Code (Section 3773.24, Revised Code), said:

“It is my opinion that ‘necessity,’ as comprehended by this section of the statute, with few exceptions, arises from conditions or circumstances caused by an agency, either in whole or in part, over which man has no control. For instance, it has been held that the distribution of milk on Sunday is a necessity in view of the fact that the production of fresh milk is by nature’s decree daily, and therefore daily distribution of the same is necessary (58 Kans., 328-30). Again, it would doubtless be regarded as a necessity that probably all stores might be open on Sunday, temporarily, following a catastrophe like the Dayton flood, or the Collingwood tragedy. For other instances, see authorities cited above.”

We are, therefore, compelled to conclude that the state produced sufficient evidence to make out a case against the defendant under Section 3773.24, Revised Code, in opening his hardware store for regular business on Sunday, and if it was the defendant’s claim that what he was doing at the time of his arrest comes within the exception of necessity, such claim constitutes an affirmative defense which the defendant must establish by the greater weight of the evidence. This he did not attempt to do.

The next claim of the defendant challenges the constitutionality of the statutes (Sections 13044 and 13045, General Code, now Section 3773.24, Revised Code). It is the claim of defendant that these sections, together with the remaining sections in Chapter 13, “Sabbath Desecration” (which sections must be considered in pari materia), áre unconstitutional:

(a) As an arbitrary exercise of the police power of the state.
(b) In depriving the defendant of his property without due process of law.
(c) That its enforcement as against him and not others similarly situated, is a denial of the equal protection of the law, in violation of the Fourteenth Amendment of the Constitution of the United States and Section 2, Article I of the Constitution of the state of Ohio.
(d) That the administration and enforcement of the the statute renders it a denial of the equal protection of the foregoing constitutional provisions.
(e) That said statutes constitute an unreasonable interference with rights of private properties in violation of Section 19, Article I of the Constitution of Ohio.

Sections 13044, 13045 and 13046, General Code, provide :

“Section 13044. Whoever being over fourteen years of age, engages in common labor or opens or causes to be opened a building or place for transaction of business, or requires a person in his employ or under his control to engage in common labor on Sunday, on complaint made within ten days thereafter, shall be fined twenty-five dollars, and for each subsequent offense, shall be fined not less than fifty dollars, nor more than, one hundred dollars, and imprisoned not less than five days nor more than thirty days.”
‘ ‘ Section 13045. The next preceding section shall not apply to work of necessity or charity and does not extend to persons who conscientiously observe the seventh day of the week as the Sabbath, and abstain thereon from doing things herein prohibited on Sunday. ’ ’
“Section 13046. The provisions of Section thirteen thousand and forty-four shall not prevent emigrating families from travelling, watermen from landing their passengers, or keepers of toll-bridges, toll-gates or ferries from attending them on Sunday.”

As stated above, these sections have now by the re-codification of the Ohio statutes been incorporated into Section 3773.24, Revised Code, without change in the subject matter. The balance of the sections in Chapter 13 of “Part Fourth: Penal” of the General Code of Ohio, entitled “Sabbath Desecration,” provide against sporting, rioting, quarrelling, hunting, fishing, or shooting, participating in exhibitions to the public with or without charge, in a building, room, grounds or garden, a theatrical or dramatic performance or an equestrian or circus performance of jugglers, acrobats, rope dancing, or sparring exhibitions, variety shows, negro ministrelry, living statutary, ballooning, baseball in the forenoon, exhibition of moving pictures in the forenoon, etc. These provisions permit baseball and moving picture shows in the afternoon on Sunday, trap-shooting in a regular gun or fishing club, and conducting regular business on Sunday, if the one claiming the right, by reason of his religious belief, to conduct such business, observes the seventh day of the week as the Sabbath, and also permits works of necessity or charity, and does not prohibit emigrating families from travelling, watermen from landing their passengers, or keepers of toll-bridges, toll-gates or ferries from attending them on Sunday.

It is to be noted that except for attending the means of public travel and engaging in sports (professional baseball being held to be a sport and not business by the United States Supreme Court, in Toolson v. New York Yankees, Inc., [1953], 346 U. S., 356, 98 L. Ed., 20, 74 S. Ct., 78) or other forms of public entertainment or recreation, the only permissible Sunday business activities are works of necessity and charity. The statutes of Ohio, therefore, do not permit some businesses to operate on Sunday and deny the same right to others of like character and the decisions holding Sunday closing laws unconstitutional because they permit some businesses to operate on Sunday and deny the same right to others are not applicable. Allen v. City of Colorado Springs, 101 Colo., 498, 75 P. (2d), 141; Henderson v. Antonacci (Florida, 1952), 62 S. E. (2d), 5.

In the case of Allen v. Colorado Springs, supra, Allen was convicted of operating a grocery store on Sunday in violation of a Sunday closing ordinance in which exceptions were made as to some businesses, including within the exceptions a drugstore. The court in holding the ordinance unconstitutional said in paragraphs one and three of the syllabus:

“1. A city, in the exercise of the police power, has authority by general ordinance to prohibit the carrying on within its limits of all businesses or occupations on Sunday, except those of necessity or charity.”
“3. A municipal ordinance which makes it unlawful to keep open any store for the sale of merchandise on Sunday, but which exempts from its operation certain establishments, including drugstores, the latter dealing in many articles, the sale of which on Sunday by other houses is prohibited under the terms of the ordinance, held discriminatory and invalid.”

Many cases are not in accord with the foregoing authorities and hold that where discriminations are contained in an ordinance or law restricting business on Sunday, that the legislative body acted on the facts within its knowledge which justified its classification as reasonable and proper.

These cases are collected in a comprehensive note in 46 A. L. R., 290 (see paragraph II, page 292). The purpose of Sunday closing laws being in the interest of the public welfare, and in support of the religious and devotional life of the community, providing for a day of rest and possibly recreation, they must be liberally construed in favor of their validity and as being within the constitutional powers of the Legislature. In 38 Ohio Jurisprudence, 349, Section 9, the author says:

“Laws relating to the observance of Sunday have been uniformly recognized as a legitimate exercise of the police power. These laws, fixing regularly running days of rest for all secular pursuits, are within the power of the Legislature to adopt such wholesome regulations as may be necessary to promote the peace, health, and well-being of society. In fact, the state may, as a police regulation for the promotion of the physical, mental, and moral welfare of its citizens, establish as a civil and political institution the first day of the week as a day of rest and prohibit the performance upon it of all labor or business except works of necessity or charity. Accordingly, Sunday legislation, including both statutes and ordinances, prohibiting common labor, barbering, baseball, hunting, etc., on Sundays, has been upheld.”

The constitutionality of Ohio laws passed in the interest of the observance of Sunday as a day of rest, has been upheld by the Supreme Court in the following cases: State v. Powell, 58 Ohio St., 324, 50 N. E., 900, 41 L. R. A., 854; Stanfeal v. State, 78 Ohio St., 24, 84 N. E., 419.

We conclude, therefore, that Section 13044, General Code (Section 3773.24, Revised Code), is not in conflict with any of the provisions of either the federal or state Constitutions.

The claim of error in rejecting evidence as to probable violation of the Sunday closing laws by others, who were not prosecuted by the authorities, thereby depriving defendant of equal protection under the law, is not well taken.

From the record and the proffered evidence in this case it is probable that many violations of the Sunday closing laws are not challenged by the enforcement agencies of the city of Cleveland Heights. It was claimed in argument that the provisions of the law in many respects seem not to fit into the pattern of modern living. It will come as a surprise to many ardent fishermen that the law prohibits them from enjoying such recreation on Sunday. No one, however, need come to the defense of the need for Sunday closing laws. In proper form they speak the will of the people. They have had a long history of supporting the public will that Sunday should be devoted to rest and religious devotion. Such laws are to be found in the history of legislation almost from the beginning of modern civilization, finding their support no doubt from the Third Commandment, “Remember that thou keep holy the Sabbath Day.”

In 83 Corpus Juris Secundum, 800, Subdivision II, “Regulation and Enforcement of Sunday Observance,” under the heading, “General History,” we find the following:

“The observance of Sunday is recognized by Constitutions and legislative enactments, both state and federal, and Sunday prohibitory laws are said to have been enacted in all the states. Such laws are said to have a religious or divine origin.
“Sunday legislation is more than fifteen centuries old; it originated in Rome in A. D. 321, when Constantine the G-reat passed an edict commanding all judges and inhabitants of cities to rest on the venerable day of the Sun. Sunday statutes were passed at an early date in England and 29 Charles II c 7 has been made the basis of similar legislation in many of the states # # * > ?

It might be said that a greater acceptance by the people of the fundamental purpose of these statutes would help in solving many of our difficult social problems. Courageous leadership in bringing about a greater understanding of their value would indeed be most beneficial.

But these are matters which come exclusively within the jurisdiction of law enforcing officers, legislative bodies and educational leaders. Courts must impartially interpret the law in cases commenced within their respective jurisdictions. The fact that one person is prosecuted and another is not is a subject with which the court cannot deal.

In the case of State v. Corologos, 101 Vt., 300, at page 307, 143 A., 284, 59 A. L. R., 1541, the court, in dealing with this question as a defense, said:

‘ ‘ If so, it was a discrimination in the administration of the law and not in the law itself, and manifestly had no bearing on the question of respondents’ guilt or innocence. One offender cannot excuse his conduct by showing that someone else equally guilty has not been prosecuted.”

We find no error in excluding such evidence.

For the foregoing reasons, the judgment of the Police Court of the City of Cleveland Heights, finding the defendant herein guilty of violating Section 13044, General Code (Section 3773.24, Revised Code), is affirmed.

Judgment affirmed.

Hurd, P. J., and Kovachy, J., concur.


source: Caselaw Access Project

author: Deeds, J. Fess, J.,

license: Public Domain

text:
    Evangelista, Appellant, v. Black et al., Appellees.
    (No. 4724
    Decided June 22, 1953.)

      Mr. George R. Effler and Mr. John J. Barone, for appellant.

      Messrs. Shumaker, Loop & Kendrick, for appellees.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Lucas County.

The parties will be referred to in this opinion as they stood in the trial court — the appellant as plaintiff and the appellees as defendants.

The action was for damages for alleged malpractice, and proceeded to trial on the amended petition of the plaintiff and the separate answers of the defendants.

At the conclusion of the introduction of evidence by the plaintiff, on motion of the defendants, the court directed the jury to return a verdict for the defendants. A motion for a new trial by the plaintiff was overruled and a final judgment entered by the court in favor of the defendants.

The assignments of error are that the trial court committed error in directing the jury to return a verdict for the defendants, in overruling the motion for a new trial, and in entering judgment for the defendants.

A review of the proceedings and judgment on the basis of the claimed errors will require a consideration of pertinent facts as disclosed by the record.

It appears from the evidence that on January 12, 1951, the plaintiff, Thelma Evangelista, 25 years of age, married and employed as a meat wrapper at a Kroger store, sustained serious injuries about her face, including a fracture of her lower jawbone, as the result of an automobile accident, following which she was removed to the Toledo Hospital where she remained as a patient until January 28, 1951.

At her suggestion, the defendant Dr. English was • called as the attending physician to assume general charge of her treatment, after which, at the suggestion of Dr. English, the defendant Dr. Black, a member of the staff of Toledo Hospital specializing in dental and oral surgery, was engaged on behalf of the plaintiff to treat her for the injuries to her mouth and jaw.

The defendant English first saw the plaintiff at the Toledo Hospital on January 14 after an X-ray examination of her face had been made and from his observation of the plaintiff he concluded that she was probably suffering from injuries not revealed by the first X-ray examination, which was made soon after her entrance into the hospital. He ordered that another X-ray examination be made, which was done.

The defendant Black saw and examined the plaintiff on January 12 and it appears from the testimony of the defendants that, due to a considerable amount of swelling about plaintiff’s face, the defendants agreed that a reduction of the fractured bones and in particular the lower jaw should be delayed until the swollen condition of plaintiff’s face had subsided, with appropriate treatment being administered in the meantime.

Dr. English saw the plaintiff each day following January 14 during her confinement in the hospital until her discharge on January 28, 1951, and Dr. Black saw her on several occasions during that time, although the defendants did not see the plaintiff together nor did they meet at any time for a conference in reference to her condition. All communications between them were made by telephone.

On January 22, the defendant English informed the defendant Black that plaintiff had sufficiently recovered from the swollen condition that a reduction of her lower jaw might be made, and on January 23 Dr. Black made the reduction and placed archbars and elastic traction bands in plaintiff’s mouth for the purpose of holding the fractured bone in position. No further X-ray examination was made at the hospital following the reduction of the fracture of the lower jaw.

After being discharged from the hospital on January 28, plaintiff visited the office of the defendant Black for observation and adjustment of the elastic bands on four occasions during the first week and once each week during the three following weeks. Dr. Black made an X-ray examination of the plaintiff’s jaw at his office on January 29, the day following her discharge from the hospital and again on February 16, and he saw her at his office on the last- occasion on February 21 when she informed him that her face was crooked, including a hard projection from her chin, a buckling outward of her left cheekbone, jaw overlapping and nose pushed over to left side, which she described as being very obvious.

The defendants testified as if on cross-examination that the only fractures sustained by the plaintiff which they found from examinations by X-ray and otherwise were a fracture of the symphysis of the mandible, being to the right side of the central portion of the lower jaw, a fracture of the eondyle or upper part of the lower jaw on the right side, and a fracture of a bone in her nose which extended into the sinus, also referred to as a congenital condition. It was assumed by the defendants that the latter fracture was not to be treated by them,' although as we view the legal relation between physician and patient, the defendant English had a responsibility respecting the result in the overall recovery of the plaintiff from the injuries she had sustained. It was in the contemplation of the plaintiff and the defendants that when the defendants had completed their treatment, plaintiff was to be referred to a plastic surgeon for the repair of the scars on her face and, according to the testimony of the defendants, the injury to her nose.

In accordance with this understanding, following February 21, arrangements were made for the plaintiff to see Dr. John C. Kelleher, a specialist in plastic and reconstructive surgery. The plaintiff went to his office on February 24, 1951, where she was examined by Dr. Kelleher, who found a number of abnormalities. On March 1 she was sent by Dr. Kelleher to Mercy Hospital for X-ray examination, and it was found that there was very little formation of bony union of the fractures and a general abnormal condition respecting recovery from the facial and jaw injuries was presented.

In summing up the findings of Dr. Kelleher from his examination and the records at Mercy Hospital, which were admitted in evidence by stipulation, and all of which was revealed within a few days following the termination of the treatment of plaintiff by the defendants, it appears that there were a malunited fracture of the symphysis of the mandible, malunited fracture of the left zygomatic arch, a malunited fracture of the left malar bone, a loose spicule of bone below the orbit of the left eye, discoverable by palpation or feeling with the hand, a buckling outward of the left cheek bone, poor occlusion or malocclusion of the teeth and mouth, asymmetry of the face, and a hard projection on the interior of the mouth as well as a hard projection at the chin outward, which was evidence of the overriding or overlapping fracture of the lower jaw, referred to as the mandible.

The injuries to the nose were in addition to the foregoing described results after the treatment of the plaintiff by the defendants had ended, and it was understood, according to the testimony of the defendants, that they were not expected to repair the injury to plaintiff’s nose, and the defendants, at least, testified that they did not assume responsibility for the disputed fracture of the malar bone which formed a part of the zygomatic arch.

On March 2, 1951, Dr, Kelleher performed an open operation on plaintiff’s lower jaw, refractured and reset that fracture and also the bones of the cheek, and performed other work in connection with the abnormal conditions which he had found.

It should be noted that prior to seeing Dr. Kelleher, the plaintiff, in addition to calling the attention of the defendant Black to the abnormal condition of her face and mouth, also went to see the defendant English and called his attention to what she termed the crooked condition of her face, and both defendants informed plaintiff that the condition of her injuries was satisfactory.

Called as if for cross-examination by the plaintiff, the defendants testified that at the time of the termination of their treatment of the plaintiff they considered her injuries to be in a normal condition with a functional recovery, which testimony was in direct conflict with the testimony of Dr. Kelleher who testified as to the result which he found concerning plaintiff’s injuries as referred to herein.

A majority of the court in their interpretation of the law as announced in decisions of the Supreme Court of the state in actions for damages for malpractice are of the opinion that the trial court erred in directing the jury to return a verdict for defendants.

The relationship existing between the physician or dentist and the patient has been defined by the Supreme Court in the case of Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238, the first paragraph of the syllabus being as follows:

‘ ‘ The relation of surgeon and patient is one arising out of contract, express or implied. The surgeon is not an insurer or guarantor, but does agree to exercise the average degree of skill, care and diligence exercised by members of the same profession in the given situation. ’ ’

The rule of law applicable in Ohio controlling the ruling on a motion for a directed verdict at the close of plaintiff’s evidence in an action for malpractice has been announced clearly by the Supreme Court in the syllabus of the case of Hubach, a Minor, v. Cole, 133 Ohio St., 137, 12 N. E. (2d), 283, as follows:

“In a malpractice action against a physician, involving a claim of negligent treatment with injurious results, it is reversible error to arrest the evidence from the jury at the close of plaintiff’s case in chief and render judgment for the defendant physician, where, viewing plaintiff’s evidence in the light most favorable to her contention, she has presented a chain of circumstances and events from which an inference may reasonably arise that the physician was negligent and that such negligence was the proximate cause of an impaired physical condition.”

Considerable emphasis has been placed on the necessity for medical or expert testimony on behalf of a plaintiff by counsel for the defendants in their very able and comprehensive brief, but we believe counsel have failed to give proper consideration to the testimony of the specialist, John C. Kelleher, who testified on behalf of the plaintiff, as we consider the fact that Dr. Kelleher testified to the finding of a number of abnormalities which both of the defendants either failed or neglected to find in their examinations and to other facts relating to hospital records and other matters from which reasonable inferences could be drawn.

The law in Ohio, however, as in most of the states, does not make expert testimony necessary in all. cases to require the submission of a case for malpractice to a jury. The rule in Ohio is stated as follows in 31 Ohio Jurisprudence, 489, Section 247:

“Expert testimony has been held not to be essential in all cases to enable the jury to determine whether a physician, surgeon, or dentist has been guilty of malpractice, and if violation of the physician’s duty to the patient appears otherwise, the plaintiff may refrain from calling expert witnesses.”

The weight of authority in the states of the Union on the question has been stated in 41 American Jurisprudence, 240, 241, Section 129, as follows:

“And it is the accepted rule that expert testimony is not necessary for the proof of negligence in nontechnical matters or those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary, but that expert testimony is admissible in malpractice cases, in which the plaintiff must prove by members of the defendant’s profession the standard of care or skill ordinarily used in the practice of that profession at a particular place, since they alone know such standards. Generally speaking, the same rule applies in actions for malpractice against dentists.”

In the case before the court, a majority of the court have considered that while expert testimony is not necessary in all cases, the plaintiff did produce very substantial expert testimony by her witness Dr. Kelleher. She also furnished other evidence, including the hospital records which were admitted by stipulation, which disclosed the maladjustments and abnormalities concerning which the plaintiff and her husband testified were brought to the attention of the defendants but which they either ignored or to which they neglected to give any attention.

The law applicable to the necessity for expert testimony was stated in the opinion of the Supreme Court by Judge Zimmerman in the case of Hubach, a Minor, v. Cole, supra, as follows:

“In a malpractice action, the issue as to whether the defendant physician has proceeded in the treatment of the particular case with the requisite standard of care and skill is a matter which must ordinarily be determined from the testimony of medical experts. But the statements and acts of the defendant physician, as well as external appearances and manifest conditions which are observable by anyone, may be given by non-expert witnesses. And such testimony by lay witnesses may show a course of conduct with ensuing results of such a character as to warrant the inference of want of care. 31 Ohio Jurisprudence, 489, Section 247; Benson v. Dean, 232 N. Y., 52, 56, 133 N. E., 125, 126; DeGroot v. Winter, 265 Mich., 274, 251 N. W., 425, 426; Stockham v. Hall, 145 Kan., 291, 65 P. (2d), 348, 349.
“A motion for a directed verdict or for judgment by the defendant accepts as true every fact offered in evidence by the plaintiff with the reasonable inferences deducible therefrom. The rule of evidence in establishing the facts of negligence and proximate cause is the same as applied to the determination of any other question of fact. And negligence and proximate cause become questions of law only when the evidence is such that reasonable minds cannot reasonably draw different conclusions either as to the facts or as to the deductions from the facts.”

The Supreme Court announced the rule controlling the decision of the case before us in the third and fourth paragraphs of the syllabus in Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, as follows:

“3. Upon motion to direct a verdict the' party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him.
“4. Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence. ’ ’

Again in the opinion of the Supreme Court by Judge Zimmerman, in the case of Hubach, a Minor, v. Cole, supra, the law applicable to the case before us was announced as follows:

“Viewing plaintiff’s evidence in the light most favorable to her claim, she presented a chain of circumstances and events from which the ultimate facts of negligence and proximate cause could be reasonably inferred. Plaintiff having thus made a prima facie case, it was reversible error for the trial court to take the case from the jury and render judgment for the defendant, as was done.
“Lending support to this conclusion are the following cases: Gunning v. Cooley, 281 U. S., 90, 74 L. Ed., 720, 50 S. Ct., 231; Hess v. Millsap (Tex. Civ. App.), 72 S. W. (2d), 923; Goddaire v. Sibley, 270 Mass., 41, 46, 169 N. E., 797, 799; Hafeman v. Seymer, 195 Wis., 625, 219 N. W., 375; Butler v. Rule, 29 Ariz., 405, 242 P., 436, 33 Ariz., 460, 265 P., 757, 758.”

Finding that there was error in the ruling of the Court of Common Pleas in directing the jury to return a verdict for the defendants and in entering judgment in favor of the defendants, the judgment is reversed, and the cause is remanded to the Court of Common Pleas for a new trial.

Judgment reversed.

Conn, J., concurs.

Fess, J.,

dissenting. With regard to Dr. English, a general practitioner, there is no evidence from which an inference of negligence proximately contributing to plaintiff’s damage can be drawn, nor am I willing to concede that the negligence of a surgeon who may be recommended or whose advice may be obtained by a general practitioner may be imputed to the latter.

With regard to Dr. Black, an oral surgeon, the evidence discloses a poor result from his treatment in contrast with a favorable result of the second operation by the plastic surgeon. There is no evidence to indicate the standard of care which the defendant Black should have exercised. Cf. 162 A. L. R., 1275; Ewing v. Goode, 78 F. 442, 443.

A presumption of negligence is never indulged from the mere fact of injury, and the burden is on the plaintiff to prove the negligence of the defendant and that such negligence is a proximate cause of injury and damage. The plaintiff must show by a preponderance of the evidence that the defendant in the performance of his service either did some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would not have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing or things which • physicians and surgeons of ordinary care, skill and diligence would have done under the same or similar circumstances. Ault v. Hall, 119 Ohio St., 422, 164 N. E., 518, 60 A. L. R., 128; Kuhn v. Banker, 133 Ohio St., 304, 13 N. E. (2d), 242, 115 A. L. R., 292. In the case of Bradshaw v. Wilson, 87 Ohio App., 319, 94 N. E. (2d), 706, it was held that in the absence of evidence to support the technical proposition that the reduction of the fracture was negligently performed, the judgment would have to be affirmed. The judgment was reversed upon the ground that there was sufficient evidence of neglect of the patient without expert medical testimony upon which to draw an inference of negligence.

In Hall v. Nagel, 139 Ohio St., 265, 39 N. E. (2d), 612, there was expert testimony that the break was of snch a nature that it could have been set with good results in the usual and ordinary way. By way of contrast, in the instant case there is no showing that Dr. Black failed to pursue the usual and normal procedure in the reduction of the fracture.

The judgment should be affirmed.


author: Wiseman, P. J.

text:
    Campbell et al., Appellees, v. The Prudential Ins. Co. of America et al., Appellants.
    (No. 724
    Decided September 17, 1954.)

      Messrs. Spidel, Staley é Hole, for appellees.

      Messrs. Myers, Mills, Boesch & Cline and Mr. Anthony A. McCarthy, for appellants.
   Wiseman, P. J.

This matter is submitted on the motion of appellees to dismiss the appeal on the ground that the order appealed from is not a final order.

To the amended petition of the plaintiffs, the appellant, one of the defendants, filed a special demurrer which was overruled. The last paragraph in the entry overruling the demurrer is as follows:

“In the alternative of the defendant, Virginia P. Campbell, desiring not to plead further, then said defendant, Virginia P. Campbell, is hereby granted twenty days from the journalization of this entry in which to plead. ’ ’

There is nothing in the record which shows appellants’ desire not to further plead; neither has judgment been rendered against appellant. Until this is done there is no final appealable order.

In 2 Ohio Jurisprudence, 188, Section 98, the rule is stated:

“It is well settled that there is no final order which can be made the basis of an appeal on questions of law, formerly error proceedings, where a cause has proceeded no further than the mere overruling or sustaining of a demurrer to a pleading of one side or the other, since such an order, without more, leaves the action still pending in the lower court. This rule has been applied in many instances to an order overruling a demurrer to a petition where the defendant answers or has leave to answer. ’ ’

In our judgment the order appealed from is not a final order within the meaning of Section 2505.02, Revised Code.

The motion to dismiss the appeal is sustained.

Motion sustained.

Miller and Hornbeck, JJ., concur.


author: Per Curiam..

text:
    The State, ex rel. Halpin, v. Hamilton County Board of Elections et al.
    (No. 7869
    Decided March 9, 1954.)

      Mr. Harry M. Hoffheimer, Mr. Sidney J. Weil, Jr., ánd Mr. Robert S. Marx, for relator.

      Mr. G. Watson Hover, prosecuting attorney, Mr. Carl B. Rubin and Mr. George S. Heitsler, for respondents.
   Per Curiam..

By original petition in mandamus, relator seeks to compel the Hamilton County Board of Elections to accept relator’s declaration of candidacy and petition for candidate, and to certify his name io be printed upon the official Democratic Party primary election ballot, as a candidate for the office of member of the county central committee from the 26th ward in the city of Cincinnati, to be voted upon at the primary election to be held May 4, 1954.

On January 29, 1954, relator tendered to and filed with the respondent board his declaration of candidacy and petition for candidate, as executed by him upon a printed form supplied by respondent board, containing declaration of candidacy, party primary .election for member of county central committee, followed by petition for candidate containing a form of certificate to be signed by the circulator of such petition.

Following the line for signature of the candidate to the declaration, the printed form of verification provided :

‘ ‘ The state of Ohio, County of......, ss.
“...................., being duly sworn, deposes
(Name of candidate)
and says that he is the candidate named in the above declaration of candidacy and that the statements and declarations therein contained are true as he verily believes.
(Signature of candidate)
“Subscribed and sworn to before me this .... day of....................,19....
( C
(Signature of officer administering oath)”
Relator executed that verification as follows:
“State of Ohio, County of Hamilton, ss.
“William R. Schumacher, being duly sworn, deposes and says that he is the candidate named in the above declaration of candidacy and that the statements and declarations therein contained are true as he verily believes.
“ (signed) Vincent Halpin
(Signature of candidate)”

On February 8, 1954, relator was notified by respondent as follows:

“Please be advised that at a meeting of the board of elections held February 8, 1954, your declaration of candidacy and petition for the office of member of the democratic county central committee was rejected because the name of William R. Schumacher appears as being sworn on the declaration of candidacy instead of the name of candidate.”

In spite of the obviously defective verification, relator contends the form as executed fully complies with the law, so that no discretion is vested in the board, but only a ministerial duty remained to accept the filing and certify the printing of the relator’s name upon the party primary ballot, which duty is enforceable in mandamus. Or, in the alternative, the refusal of the board to accept the filing and act favorably upon it amounts to an abuse of discretion, for which the remedy of mandamus will lie.

Section 3501.11, Revised Code, provides, inter alia, that boards of elections shall perform all the duties imposed by law, and shall “ (K) Review, examine and certify the sufficiency and validity of petitions, and nomination papers. ’ ’

Elections belong to the political branch of the government, so that provisions for the conduct thereof are well within the legislative power, and respondent in determining the sufficiency of relator’s filing was acting in a political rather than a judicial capacity.

The well-settled general rule is that the courts have no authority to control the actions, conclusions, or determinations of boards of elections, except in cases of fraud, mistake, or an abuse of discretion.

There is no claim of fraud or corruption in this case.

The function of the court in this case is .to determine whether the administrative board has performed its duty under the law. The only possible basis for judicial intervention is that the board flagrantly misinterpreted the statute, or clearly disregarded an applicable legal provision.

We find that the board was regarding the applicable statute and construed and applied its provisions in accord with its clear intent.

The burden of fully complying with the election laws rests upon the relator. The statute requires a verification of the declaration. Upon examination by the board, relator’s filing revealed no such 'verification. Another person’s name, that of the notary, appears as swearing and deposing to the verification signed by relator and then notarizing his own oath" and deposition. Relator’s filing is without the verification required by law. How could the board do otherwise ?

In State, ex rel. Burgstaller, v. Franklin County Board of Elections, 149 Ohio St., 193, 197, 78 N. E. (2d), 352, it is stated:

“ ‘Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, • board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an' office, trust, or station.’
“There is no claim of fraud or corruption in this case, and the only possible basis for judicial intervention would be that the board flagrantly misinterpreted the statute, or clearly disregarded an applicable legal provision. In our opinion, the board took cognizance of the applicable statute and did not disregard it, but, on the contrary, construed and applied it in accordance with its natural and fundamental meaning, thereby fully performing the act which the law specially enjoins as its duty.
“We hold, therefore, that because the relator has not established a clear, legal right to the issuance of a writ of mandamus, the demurrer is sustained and the writ denied. ’ ’

As in the above cited case, we hold relator has not established a clear, legal right to the issuance of a writ of mandamus, and the same is, therefore, denied.

Writ denied.

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


author: Griffith, P. J.

text:
    Taylor, Appellee, v. Robishaw et al., Appellants.
    (Two cases.)
    (Nos. 509 and 510
    Decided June 10, 1954.)

      Mr. Hoioard M. Nasor and Messrs. Payer, Bleiweiss, Crow é Mollison, for appellees.

      Mr. Harry Wagner and Messrs. Keep é Schols, for appellants.
   Griffith, P. J.

These two suits, on appeal on questions of law and fact from the Common Pleas Court of Ashtabula County, are for the specific performance of separate contracts and have been consolidated for the purpose of trial, since they arise out of the same set of facts. One suit, by Daisy Taylor, seeks to require the heirs at law of Jennie May Merrill to specifically perform an oral contract evidenced by a written instrument, and the other suit, by Ray H. Taylor, is of like tenor against the same defendants.

The plaintiffs are mother and son. The facts of these two cases are all-important. The law applicable thereto is plain and in no wise complicated.

Jennie May Merrill, in the spring of 1947, was past 70 years of age. She had been ill and under I)r. Faus’s care the previous winter. That winter, she resided with her aged sister in Wellington. The doctor treated her for shingles. She was a widow, her husband having died in 1941. Following his death, she remained on the homestead farm until she went to reside with her sister, Ida Lowrey, that winter in Wellington.

She was the owner of two farms, one the homestead farm of 130 acres, and the other a 40-acre farm on Jones Road, both farms being located in Brighton Township, Lorain County, Ohio, about 12 miles from Wellington.

That winter, she advertised for tenants to move onto her farm. The two Taylors, Ray and his mother, Daisy, who were total strangers to Mrs. Merrill, applied in response to the advertisement and entered into a memorandum of lease. The lease memorandum was in the handwriting of Ray H. Taylor and was signed by himself and Mrs. Merrill and none other.

The memorandum reads as follows:

“This farm is to be leased for five years. This farm is located 1% miles north of Brighton on route 511 on west side of road, 130 acres. Lessee is to do all labor; lessor is to furnish all material; lessee is to get the first years rent free; and after that lessee is to pay four dollars per acre for period of four years according to price; and then to have first chance to buy this farm regardless.
“Ray H. Taylor “Mrs. May Merrill.”

Following the execution of the lease, the Taylors went into possession on or about April 1, 1947. While the written lease was made only to and signed only by Ray H. Taylor, his wife, Dora, his parents, Daisy and Witsell Taylor, and his younger brothers and sisters all moved onto and occupied the 130-acre farm.

In the latter part of April, Mrs. Merrill moved back to the farm, living with the Taylors under some understanding with them and occupying a room in the house and having her meals with the family. Just what that arrangement was is in dispute, but there is some evidence that it was Mrs. Merrill’s intention to live in the farm house with the tenants and eat at their table.

The writing discloses that no reservation of any room or any provision for Mrs. Merrill’s care and keep were set out in this meager memorandum. When she returned to the farm in the latter part of April 1947, Mrs. Merrill was a sick old lady. She had a running sore on one leg; needed assistance during the nights; was suffering from so severe an attack of shingles that part of her scalp was removed; and was in a terribly weakened condition.

On August 15, 1947, the day before she entered the Lodi Hospital and while in the bedroom off the kitchen in the farm house, in the presence of Dora Taylor and Ray Taylor, with Daisy and Witsell Taylor in the kitchen, she wrote, with some difficulty due to physical weakness, the following memorandum:

“I want Ray and mother Taylor to have my farms for taking care me.
“May Merrill.”

Regarding the execution of this memorandum, Mr. Witsell Taylor testified:

‘ ‘ Q. Did you hear any conversation or statement or talk by Jennie May Merrill immediately before that was written? Just answer the question yes or no. A. Yes, I heard some talk.
“Q. What, if anything, did you hear said? A. Well, I heard Ray say to May — he was talking about this farm deal, you know, that she was going to deed it to him — and he said to her, he says, ‘I don’t have anything to show that you are going' to deed me this farm, ’ and he says, ‘I am liable to get kicked around by the Lowreys or somebody,’ and she says to him, she says, ‘I’ll fix that.’
“Q. Was that — when she said, ‘I’ll fix that,’ is that when she commenced to write the memorandum? A. That’s right.
“Q. How soon after the memorandum was written did you see it? A. Well, Ray read it when she handed it to him.
“Q. No, the question is how soon did you, yourself, see it? A. And he come out with it and I was right there in the kitchen and he handed it to me and he said, ‘ this is what May give me. ’ I said ‘ observe it. ’ ”
Mrs. Merrill remained in the hospital until August 30, 1947, at which time she returned to the farm. On September 16, 1947, in her own handwriting, she executed the following:
“September 16, 1947
“I want Ray to have this farm and what in house for take care my business.
“May Merrill.
“Give to Wagner.”
Also, the following:
“I want mother Taylor to have my farm on Jones Road.
“M. Merrill.”

On September 17, 1947, May Merrill died of toxic pneumonia. Following the funeral, the defendants, or at least some of them, assembled at the farm. There is testimony that at that time Ray Taylor asked the defendánt, Lee Robishaw, one of the heirs, “for the first chance to buy the farm.”

This request was consistent with the terms of the lease. This testimony is denied by the Taylors. There is testimony that after the administrator was appointed the Taylors contacted him relative to obtaining funds from the estate for the payment of fencing on the farm.

On January 19, 1948, the plaintiffs presented to the administrator separate claims against the estate of May Merrill, deceased, one of $10,000 for Ray, and one of $3,000 for Daisy for personal services rendered. • The administrator rejected these claims and two separate suits were commenced on March 17, 1948, against the administrator in Lorain County Court of Common Pleas, that being the same date that these two suits were filed in the Court of Common Pleas of Ashtabula County asking for specific performance.

We believe the lease, coupled with occupancy by Ray Taylor, was a valid lease to Ray Taylor under the terms contained therein for a period of three years.

The first memorandum of August 15, which reads, “I want Ray and mother Taylor to have my farms for taking care me,” was executed by this old lady on the day before she entered the hospital and while she was suffering from pneumonia; it was written in the presence of the Taylors only, without a single outside witness. Is it likely that one of her age and condition would be making provisions for her care and keep for the rest of her life on the eve of her leaving her homestead farm and entering a hospital?

Two of the Taylors were in the bedroom, two others were in the kitchen next to the bedroom, and no one else was around. She had a lawyer by the name of Wagner in Wellington at the time, and she said in the second memorandum, ‘‘give to Wagner.” Did she not have in mind his counsel or advice or approval?

Likewise, the second memorandum that she wrote the day before her death was executed in the presence of Ray and Dora Taylor, and no one else.

The testimony of Ray Taylor and Dora Taylor should be closely scanned and tested by its own probability or improbability. The memoranda of August 15 and September 16 have the earmarks of undue influence exercised upon this feeble old lady for the following reasons:

1. As to the first memorandum, Ray requested it of her.
2. There is no witness to it except the four Taylors.
3. It is not probable, by ordinary rules of human conduct under circumstances present in the case, that she freely and understandingly made such a memorandum.
4. As to the second memorandum made the day before her death, again only in the presence of the Taylors, we feel that the facts justify the conclusion that either undue influence was exercised upon her or at least it was not a deliberate judgment on her part and was, therefore, invalid under the law.

Dr. Faus, Mrs. Merrill’s doctor during the six-month period before her death and one of the plaintiffs’ own witnesses, said he had been treating Mrs. Merrill both mentally and physically in 1947; that he would sooth her and quiet her down; and that she was eccentric.

She leased the homestead farm to Ray and never cancelled it and her clauses in the two memoranda are consistent with the clause in the lease that Ray was to have the first chance to buy the farm.

She was suffering from pneumonia on August 15, the day before she entered the hospital, and she died of pneumonia September 17. It is quite apparent that in the interim of only one month, her physical and mental capacities were seriously impaired. This all transpired while the Taylors were occupying the homestead farm under the terms of a lease written by Ray Taylor in his own hand.

The conduct of Ray Taylor and Daisy Taylor following Mrs. Merrill’s death is wholly inconsistent with their instant claims for specific performance. In the claims against her estate filed in Lorain County, they prayed for a money judgment only, for services rendered.

In Ray Taylor’s case, he says, “plaintiff provided for her; devoted himself to the management and care of her properties; provided assistance to her in banking matters; caused her to be transported to and from the office of her physician and otherwise provided for her companionship, care and attention.”

In Daisy Taylor’s case, she said in her petition, “the plaintiff, pursuant to said understanding, devoted herself to providing and rendering nursing and other care and attention to the decedent; in ministering to her needs during her illness and in providing comfort and companionship. ’ ’

Ray claims his services were worth $10,000, and Daisy makes claim for $3,000. At the time these two claims were filed against the estate it is apparent that the Taylors did not recognize the oral contract sued upon in this case. Later, suit was instituted on each of the claims for money only in Lorain County and on the same day the two suits in this case were instituted in Ashtabula County for specific performance.

The circumstances surrounding the execution of these oral contracts, evidenced, at least in part, by the written memoranda of August 15 and September 16, require this court to look upon such evidence in support of the contracts in a scrupulous manner. Such contracts can be enforced only when they are clearly proved by positive testimony, and the interests of the witnesses in the outcome of the case may be considered.

One of the parties to this lease and to these alleged contracts, which are the bases of these two suits, is dead, and she is unable to give her understanding of the matter. Therefore, unless the evidence in support of the contracts is clear and coilvineing, and its terms definite and certain, the contract fails.

In view of the whole record, our conclusion is that Jennie May Merrill did not have sufficient mental and physical capacity to execute the memoranda of August 15, 1947, and September 16, 1947; that the making of such memoranda was brought about through undue influence; that she did not exercise a deliberate judgment in the execution of the same; that, since the memoranda are of no legal effect, the plaintiffs’ cases fail by reason of the statute of frauds (Section 1335. 04, Revised Code); and that the prayer of the petitions should be denied and judgments entered for the defendants.

Judgments for defendants.

Phillips and Nichols, JJ., concur.


author: Deeds, J.

text:
    Roback, Appellee, v. Roback et al., Appellants.
    (No. 22720
    Decided July 13, 1953.)

      Mr. William A. Weiss, for appellee.

      Mr. George J. McMonagle and Mr. Anthony G. Carlin, for appellants.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County.

The parties to this proceeding will be referred to herein as they stood in the trial court, the plaintiffappellee, Frank Boback, as plaintiff, and the defendant-appellant, Louis K. Sitko, as defendant.

The action was commenced in the Court of Common Pleas by the plaintiff for the partition of certain real estate owned jointly by plaintiff and a former wife, then deceased, against plaintiff’s then present wife and a daughter and son-in-law, the defendant appearing as attorney for the plaintiff in the action.

It appears from the evidence, hereinafter considered more in detail, that following the performance of legal services in numerous difficulties as attorney for plaintiff, defendant, pursuant to leave of court, became a party defendant in the action and filed an answer and cross-petition, alleging that the defendant was the holder and owner of a promissory note in the principal sum of $5,000, secured by a mortgage covering the real property, and that the note and mortgage had been duly executed and delivered by plaintiff to the defendant as payee. Defendant prayed for judgment and for marshaling of liens.

To this answer and cross-petition of the defendant, the plaintiff filed a pleading denominated a reply, in which the plaintiff alleged that defendant secured the signature of plaintiff to the note and mortgage when they were in blank form, and that plaintiff was induced to sign through fraud, misrepresentation and undue influence and by reason of the fiduciary relation of attorney and client existing between plaintiff and defendant. Plaintiff prayed for a cancellation of the instruments.

To this pleading of the plaintiff, defendant filed a reply alleging that the defendant had performed many legal services for the plaintiff, that the note and mortgage were executed in consideration of those services, and denied all unfair dealing by defendant.

The case was tried before the court as a case in equity, following which the Court of Common Pleas decreed that the note and mortgage were null and void by reason of fraud and undue, influence having been practiced by defendant upon plaintiff and decreed that same be canceled- and held for naught; that defendant be barred from all claims; and that the cross-petition be dismissed and that a decree for partition be allowed.

The review by this court is on the bill of exceptions containing the evidence, the transcript of the proceedings in the Court of Common Pleas, and the oral arguments and briefs of counsel.

The evidence discloses that during the period of time from August 5,1948, to June 26, 1951, the defendant as the attorney for plaintiff, performed substantial legal services involving a contested action for divorce and alimony; claims against the plaintiff for damages on account of alleged assaults and batteries; claim by a daughter on account of an interest in and for the occupancy of the real property; defense of plaintiff on an indictment charging assault with a knife with intent to kill, and many domestic and personal matters, all of which services are evidenced by office memoranda kept by the defendant over said period of time, showing an aggregate of 276-t4 hours of legal services rendered by defendant on behalf of plaintiff, which memoranda, marked as exhibits, were received in evidence.

It appears further from the evidence offered by the defendant that on April 30,1949, plaintiff was involved in an altercation, to which reference has been made, with a step-son, a step-daughter and her husband, at which time many knife stabs were inflicted upon the step-son and a lesser number upon the husband of the step-daughter, with damage to the clothing of the latter, resulting in a criminal indictment charging the plaintiff with stabbing with intent to kill and claims being made by all such persons for damages on account of the alleged assaults and batteries.

On May 3, 1949, following the release of the plaintiff from jail, plaintiff accompanied the defendant to defendant’s office, where plaintiff’s difficulties were discussed, wdiich conference resulted in, the dictation of an employment contract by the deféndant to the office secretary of the defendant, in the presence and hearing of plaintiff, according to the testimony of defendant and said office secretary. The contract, in typewritten form bearing the admitted signature of the plaintiff, appears in the record as defendant’s exhibit and provided in substance for the execution by plaintiff of a promissory note in the principal sum of $5,000, to be secured by a mortgage covering the real estate in consideration of legal services rendered and to be rendered by the defendant in all plaintiff’s difficulties.

The testimony of the defendant, corroborated by the testimony of Margaret Janitelli, the office secretary, and attorney Orlin F. Goudy who was a notary public also, is that plaintiff returned to defendant’s office on May 4, 1949, at which time the contents of the note and mortgage were discussed by defendant with the plaintiff, that the instruments were signed by the plaintiff in the presence of the defendant, Margaret Janitelli, and attorney Goudy, that the signatures of the two last mentioned appear as witnesses to the execution of said mortgage, and that the attorney also acted as the notary public to plaintiff’s acknowledgment of the execution of the mortgage, both of which instruments appear in evidence as defendant’s exhibits.

The defendant and the witnesses, Margaret Janitelli and attorney Orlin F. Gondy, each testified that at the time of the signing qnd execution of the note and mortgage by plaintiff, the instruments were fully completed and not in blank in any particulars.

It should be noted as appearing from the evidence that on May 3, 1949, it was necessary for plaintiff to execute a promissory note in the sum of $3,000, required also to be signed by the defendant, to indemnify the surety executing the bond in a like amount in order to secure the release of the plaintiff from confinement in jail on bond, this incident being pertinent in connection with the testimony of the plaintiff, who acknowledged the affixing of his signature appearing upon the contract of employment, the note and the mortgage, but denied that he knew the contents of those instruments at the time of signing them and testified that he signed the papers because he was told to do so by the defendant or he would have to remain in jail. It was admitted by the defendant in his testimony that the plaintiff was told that unless the note was executed indemnifying the surety he would have to be returned to jail, but denied by the defendant, and the testimony of the witnesses Margaret Janitelli and attorney Orlin F. Goudy contradict very forcibly the claim that any undue influence or misrepresentations concerning jail were brought to bear in connection with the signing of the note payable to the defendant and the mortgage securing the payment of same.

It appears further from the evidence that attorney Anthony C. Carlin represented plaintiff’s wife, her daughter, son and son-in-law on account of the do^ mestic difficulties and the alleged felonious assaults, and that conferences were had between plaintiff, plaintiff’s wife, the defendant and attorney Carlin; and that at least at one of those conferences concerning a settlement in reference to alimony and claims, attorney Carlin testified, that the existence and purpose of the $5,000 note secured by a mortgage covering the real estate were discussed with plaintiff, who appeared to be fully informed concerning same.

A situation is therefore presented by the record where the relation of attorney and client existed between the plaintiff and defendant and it is claimed by the client that the execution of the note and mortgage in question was brought about by the practice of fraud and undue influence by the defendant in his relation as attorney for the plaintiff.

The only evidence in support of the charges of fraud and undue influence, having been brought to bear in the transaction by the defendant, is the uncertain and indefinite testimony of the plaintiff that he did not know the contents of the papers in question and that he was told that he would have to sign same or be returned to jail.

As against this meager and indefinite testimony of the plaintiff, the defendant is corroborated in his testimony and contention that the transaction was fully known and understood by the plaintiff, by the testimony of attorneys Goudy and Carlin and the office secretary, Miss Jan-itelli, all of whom gave clear and definite testimony to the effect that the transaction was fully understood by the plaintiff and that the execution of the instruments was free from fraud, misrepresentation and undue influence.

In addition, we have before us the instruments in regular form and the admission of the plaintiff that his signature appears upon same, together with the evidence of extensive legal services having been rendered by the defendant and plaintiff’s inability to pay for same in the ordinary manner, all which logically support the claim of the defendant and refute the charges of the plaintiff. It therefore appears to this court that the clear and manifest weight of the evidence is against the charges of fraud and undue influence.

The law of Ohio controlling the decision in this case has been stated in 6 Ohio Jurisprudence, 605, 606, Section 53, as follows:

“Since each case involving the rescission or cancelation .of an instrument depends very greatly on its own facts and circumstances, the courts have not attempted to apply arbitrary or precise rules for the determination of the weight and sufficiency of the evidence requiring or justifying such relief in any particular case. It is established that the evidence must be clear and convincing. Schauck, J., speaking on the question of the degree of proof required in the case of actions for the rescission of deeds, said [In a decision by the Supreme Court of the state]:
“ ‘It is the settled policy of the state, as indicated by a uniform course of practice in its courts, and by repeated decisions of this court, that instruments of this solemn character, executed in conformity to the provisions of the deeds act, shall not be set aside or defeated of their natural purpose, except upon proper allegations which are supported by evidence of a clear and convincing character. The mere preponderance of evidence, which is sufficient to determine the verdicts of juries in civil actions, is not sufficient. ’ ’ ’

The law applicable in this state to the case presented by the record before us has also been announced by the Supreme Court in the syllabus of the case of McAdams v. McAdams, Sr., 80 Ohio St., 232, 88 N. E., 542:

“1. In an action by the grantor in a deed, to reform the instrument upon the ground that the grantee fraudulently concealed and misstated the contents of the deed to the grantor, when it appears that the grantee is a son of the grantor and an attorney at law, and that such grantee was entrusted with the drafting of the instrument upon his own suggestion, such facts raise a presumption of the existence of relations of trust and confidence between the parties and put upon the grantee the burden of showing that no undue advantage was taken of the grantor in the execution of the deed.
“2. But when it also clearly appears in such case that such deed is in apparent accord with previous declarations of the grantor as to his intentions and his subsequent declarations as to what he had done, and that he could read and had ample opportunity before, at, and after, signing the deed to read the same, the presumption of undue advantage by reason of confidential relations is rebutted, and the burden rests upon the grantor to show by clear and convincing proof that .the deed is fraudulent.
“3. In such case declarations of the grantor, made in the absence of the grantee, are not competent evidence to prove the alleged fraud; but statements of the grantor which tend to rebut the claim of fraud, whether made before or after the signing of the deed, are admissible.”

The Supreme Court of the state again stated the principle of law applicable and reaffirmed the prior announcement of the court in the opinion in the case of Kroeger, Supt., v. Brody, Trustee, 130 Ohio St., 559, 566, 200 N. E., 836:

“Ordinarily, one of full age in the possession of his faculties and able to read and write, who signs an instrument and remains acquiescent to its operative effect for some time, may not thereafter escape the consequences by urging that he did not read it or that he relied upon the representations of another as to its contents or significance. Or as Judge Davis remarks in McAdams v. McAdams, 80 Ohio St., 232, 240, 88 N. E., 542, 544:
“ ‘A person of ordinary mind can not be hqard to say that he was misled into signing a paper which was different from what he intended, when he could have known the truth by merely looking when he signed. ’ ’ ’

We therefore are compelled to the conclusion that the charges of fraud and undue influence made by the plaintiff against the defendant in the execution of the instruments in question, are not supported by any evidence of a substantial character and that the manifest weight of the evidence supports the contention of the defendant that the note and mortgage were executed and delivered by the plaintiff with full knowledge of the purpose and legal effect of same and that, therefore, the judgment of the Court of Common Pleas is contrary to law and should be and is reversed and the cause is remanded to the Court of Common Pleas for further proceedings.

Jitdgment reversed.

Fess and Conn, JJ., concur.

Fess, Conn and Deeds, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.


author: Ross, J.

text:
    Raskin Hotel Co., Appellant, v. City of Cincinnati, Appellee.

      (No. 7883
    Decided July 12, 1954.)

      Mr. Irving Harris, for appellant.

      Mr. Henry Brensile, city solicitor, and Mr. Edgar Holts, for appellee.
   Ross, J.

This is an appeal on questions of law and fact from a decree of the Court of Common Pleas of Hamilton County.

The plaintiff filed a petition for injunction, in which it is stated that plaintiff is the owner of a hotel abutting on Fourth Street and Broadway in the city of Cincinnati, which are public thoroughfares in such city and which hotel has entrances on Fourth Street and Broadway; that the employees of such city have caused certain “No Parking” signs to be installed and maintained in front of the entrances to such hotel; that such signs “substantially interfere with plaintiff and plaintiff’s customers’ access to and right of egress and ingress to the hotel; that the effect of this is to materially obstruct the plaintiff’s use of its property; and to deprive the plaintiff of the property rights in Fourth Street, and the private rights and easements which they respectively now have in same.”

It is claimed in the petition also that municipal ordinance No. 508-14 is unconstitutional.

The prayer is for an injunction abating such signs and that such ordinance be declared unconstitutional.

The answer of the defendant admits the installation and maintenance of “No Parking” signs, and that their existence is authorized by sections 502-10 and 508-14 of the Cincinnati municipal ordinances.

Further answering, the defendant states that “the plaintiff’s only right to the streets, other than the rights enjoyed by other members of the public, is the right of ingress and egress and that such right is granted to the plaintiff and fully protected.”

In the reply of the plaintiff, it is stated that Section 508-14 of the Municipal Ordinances of the City of Cincinnati, authorizing the city manager to erqct traffic signs prohibiting parking or stopping of vehicles, is unconstitutional.

From the evidence it appears that the council of the city of Cincinnati has enacted ordinances in force and applicable to the facts here presented.

Section 508-14 of such ordinances provides:

“Parking and Stopping Restrictions. Authorisation. The city manager is hereby authorized and required to ascertain upon what highways and parts of highways the accommodation of traffic or the safety of the public requires the restriction as to time, or the prohibition, of the parking or stopping of vehicles; and he shall erect and maintain appropriate traffic signs plainly indicating the purpose of such restrictions. It shall be unlawful to park or stop a vehicle in violation of a traffic sign so erected. ’ ’

Section 501-P-l defines parking as follows;

‘ ‘ The standing of a vehicle, whether occupied or unoccupied, within a highway. The term shall not apply to the temporary stopping of a vehicle for the purpose of and while actually engaged in loading or unloading passengers or merchandise.”

Section 502-10 provides:

“Traffic Signs and Signals. ,Authorisation. It shall be the duty of the city manager to place and maintain traffic signs and signals required by the traffic code, and he is hereby authorized to place and maintain such other traffic signs and signals as he shall deem necessary for the proper control of traffic. ’ ’■

It does not appear in the evidence that the city council has defined the terms, “standing” or “stopping.”

The plaintiff operates a hotel on the northwest corner of Fourth Street and Broadway in the city of Cincinnati. The hotel has entrances, for the coming and going of guests and those having business with the hotel, on Fourth Street and on Broadway. Over each entrance, signs are maintained announcing that the property is operated as a hotel.

Pursuant to the powers vested in the city manager and under his orders, certain traffic signs were installed and are maintained, applicable to the property of the hotel abutting on Fourth Street and on Broadway. On Broadway, these signs are placed a short distance to the north of the hotel entrance and contain the following words: ‘ ‘ Hotel Zone — Parking 15 Minutes— All Hou^s — Guests Only While Checking In and Out.” An arrow points south to the portion of the street immediately in front of the entrance to the hotel. Below this sign is another sign containing the following words: “Bus Stop. No Standing or Parking Any Time.” An arrow points to the north. Thirty-eight feet south of these signs is another sign bearing the inscription: “Hotel Zone — Parking 15 Minutes — All Hours — Guests Only While Checking In and Out. ’ ’ An arrow points north to the 38-foot area in front of the entrance to the hotel. Below this sign is another bearing the inscription: “No Stopping or Parking Any Time.” An arrow points to the south, covering the area between the sign and the corner of Fourth and Broadway.

These signs contain regulations affecting the entire frontage of the hotel on Broadway, which is a street extending in a north and south direction and defined in traffic regulations as a “ two-way street. ’ ’

On Fourth Street, which extends in an east and west direction and is designated as a “one-way” street west, three signs are placed upon a single pole, located 51 feet west of the northwest corner of Fourth and Broadway. The area includes the area opposite the Fourth Street entrance to the hotel. The upper of these three signs bears the incription: “No Standing or Parking 7-9 A. M., 4-6 P. M.” An arrow points to the east, indicating the area immediately in front of the Fourth Street entrance to the hotel. The left of the two signs below bears the inscription: “Bus Stop —No Standing or Parking Any Time.” An arrow points to the west and indicates an area abutting on the hotel property. The right of these two lower signs contains the inscription: “No Parking Any Time.” An arrow points to the east, indicating also an area immediately in front of the Fourth Street entrance to the hotel.

Under the definition of parking, supra, the temporary stopping of a vehicle for the purpose of and while it is actually engaged in loading or unloading passengers or merchandise, those representing the city would have no right to interfere with those seeking entrance to or egress from the hotel for such purposes. From the evidence, however, it appears that the police have not recognized the exception, particularly within the hours of 7 to 9, a. m. and 4 to 6, p. m. So far as such is the case, the representatives of the defendant are interfering with the rights of ingress and egress a,ppurtenant to the plaintiff abutting-property holder. These rights have long been recognized as being inherently appurtenant to such abutting-property holder. State, ex rel. McKay, Exr., v. Kauer, Dir., 156 Ohio St., 347, 102 N. E. (2d), 703; Greenberg v. L. I. Snodgrass Co., 161 Ohio St., 351, 119 N. E. (2d), 292.

It will be noted that the defendant has failed to protect the rights of the plaintiff on Fourth Street, as it has done on Broadway, where the area in front of the hotel is designated by appropriate signs, indicating a hotel zone, and the police in their interpretation of the ordinances and the signs maintained by the city manager have interfered with the rights of the plaintiff and the patrons of the hotel.

It is the claim of the plaintiff that the ordinance delegating power to the city manager to erect such signs is unconstitutional and void. This claim cannot be sustained. It may be inferred that council in the delegation of such power had the right to presume that the city manager would operate under such power in a manner consistent with the lawful and reasonable rights of abutting-property owners. In failing so to do, he has not vitiated the power of council to enact the ordinance, but rather has demonstrated that his interpretation of such power and performance thereunder have been arbitrary, unreasonable, and in conflict with the inherent rights of the holder of the property abutting on the street to have reasonable ingress and egress to and from its property, and to have such privileges extended to those having lawful business with the operator of the abutting property.

The ordinance is neither unconstitutional nor an unreasonable exercise of the police power vested in the city but, on the contrary, only becomes inoperative when the power vested in the city manager is unconscionably exercised. Peculiar to the particular business here involved, such unreasonable exercise of power becomes most oppressive. The signs indicate that, particularly during the hours mentioned, a prospective guest in stopping a vehicle for the purpose of entering the Fourth Street entrance to the hotel is in danger of police interference and the consequences following his stopping to enter the hotel and discharge his baggage. It appears that even if he knew the way, it would be necessary for him to travel many city blocks, over a tortuous course of one-way streets, with many inhibitions against left turns, to finally reach the alternate Broadway entrance.

It seems apparent that, by the use of the signs on Fourth Street and the action of enforcing officers, the business of plaintiff, as the operator of a public hotel, will be severely curtailed. If guests are not permitted to stop at an entrance to the hotel long enough to leave their vehicles and discharge their baggage, or enter such vehicles and load baggage, that entrance might just as well be closed as far as such guests or prospective guests are concerned.

The conclusion is inescapable that, owing to the absence of proper signs and the presence of signs which are, to say the least, misleading as to the rights of the plaintiff, and owing to the interference by representatives of the city, the.rights of the plaintiff have been unlawfully curtailed, and an injunction will be granted against such unlawful interference by either such signs or by the representatives of the defendant.

Injunction granted.

Matthews, P. J., and Hildebrant, J., concur in the syllabus, opinion and judgment.


author: Per Curiam.

text:
    DeJarnette, Appellee, v. Eastman, Admr., Appellant.
    (No. 677
    Decided October 18, 1954.)

      Messrs. Young & Young, for appellee.

      Mr. George Coolc Ford and Mr. Frank C. Lyons, for appellant.
   Per Curiam.

This appeal on questions of law from a judgment of the Court of Common Pleas of Huron County originated by an action being instituted in that court by plaintiff, appellee herein, against the defendant, appellant herein, as the administrator of the estate of Mattie Vick, deceased.

The parties will" be referred to herein as plaintiff and defendant respectively, as they appeared in the Court of Common Pleas.

Following the formal allegations referring to the appointment and qualification of the defendant as administrator, the plaintiff in his petition alleged in three separate causes of action the performance of services at the request of the decedent Mattie Vick, for which it is alleged decedent promised to pay, as follows:

From December 1946 to July 1, 1951, services as a' nurse and domestic servant, comprising 282 weeks at $10 per week, totalling $2,820. From July 1, 1951, to December 31, 1952, services as a nurse and also as a domestic servant at $25 per week, totalling the sum of $650. From January 24, 1946, to the time of decedent’s death in January 1952 for labor performed and materials furnished for improving and remodelling the dwelling house owned by the decedent and alleged to have been reasonably worth the sum of $2,000, all which aggregated the sum of $5,420, for which sum plaintiff prayed judgment against the defendant.

The defendant, by answer, specifically denied that any request for the performance of the services or promise to pay therefor was made by the decedent, and alleged further that if such services were performed by the plaintiff, they were performed without any expectation of remuneration. The reply of the plaintiff denies the affirmative allegations of defendant’s answer.

The trial resulted in a verdict in the sum of $1,000, which, as was indicated by answers to interrogatories submitted on behalf of the plaintiff, was found by the jury to be due as “the reasonable value of such services” performed by the plaintiff, as “necessarily required by the decedent by reason of her last illness.” Upon this verdict, the judgment here for review was entered by the trial court.

Motions for a directed verdict at the close of plaintiff’s case, and at the conclusion of all the evidence on behalf of plaintiff were overruled by the trial court.

Although the court has given consideration to each of the 20 specifications in defendant’s assignment of errors, nevertheless in view of the conclusion reached by the court on the evidence in the record before us, an analysis or any comment concerning same becomes unnecessary.

The evidence in the record discloses, in part, that plaintiff and the decedent lived and cohabited in the residence of decedent, sleeping together in the same bed as man and wife during the period of time beginning in the year 1938 until the death of decedent in the month of January 1952.

It is disclosed also by the record that following the appointment of the defendant as administrator of the estate of Mattie Vick, the plaintiff filed a verified application in the Probate Court of Huron County, charging the defendant with misconduct and seeking defendant’s removal as such administrator for the reasons following:

“First: In procuring his appointment as such administrator without giving notice to the surviving spouse.
“Second: In representing to the court that there was no surviving spouse of said decedent, when he well knew that said decedent was survived by a husband, to wit: this applicant [plaintiff].”

It appears further from the record that plaintiff filed verified exceptions as the surviving spouse of the decedent to the inventory and appraisement of the defendant as administrator in the Probate Court.

The determination of the Probate Court upon plaintiff’s application as surviving spouse seeking the removal of the defendant was that plaintiff was not the surviving husband of Mattie Vick, following which plaintiff presented his account for services, which was rejected by the defendant as administrator, resulting in the filing by the plaintiff of the action on such account and the judgment now before us for review.

In view of the undisputed relationship which existed between the plaintiff and the decedent for many years and the insistent representation by plaintiff that he was the surviving husband of the decedent, this court concludes that there is no evidence of a substantive character on the record before us tending to establish the existence of contractual relations in support of the verdict of the jury and judgment of the court, and that, therefore, the trial court should have granted defendant’s motions for a directed verdict and rendered judgment for the defendant. Columbus, Hocking Valley & Toledo Ry. Co. v. Gaffney, 65 Ohio St., 104, 61 N. E., 152.

The judgment of the Court of Common Pleas is, therefore, reversed and final judgment for the defendant is rendered herein.

Judgment reversed.

Fess, P. J., Conn and Deeds, JJ., concur.