author: Wiseman, J.

text:
    Toulmin, Jr., Appellant, v. Becker, Appellee.
    (No. 2191
    Decided October 29, 1952.)

      Messrs. Pickrel, Schaeffer ds Ebeling and Mr. William E. Selva, for appellant.

      Messrs. Landis, Ferguson, Bieser d Green, for appellee.
   Wiseman, J.

This matter is submitted on the application of plaintiff, appellant herein, to refer this cause to a referee. The defendant, appellee herein, opposes the application on the ground that the Court of Appeals has no statutory or inherent authority to make such reference.

The case is one in chancery, and it is in this court on an appeal on questions of law and fact.

There is no statute which expressly confers authority on the Court of Appeals to refer a chancery matter to a referee. In Section 12223-21, General Code, it is provided:

“An appeal taken on questions of law and fact shall entitle the party to a hearing and determination of the facts de novo and shall be upon the same or amended pleadings.”

De novo means “anew” or “afresh.”

The question of reference is not a jurisdictional matter but one of procedure. Dillon v. City of Cleveland, 117 Ohio St., 258, 266, 158 N. E., 606. The Court of Appeals sits as a trial court in an appeal on questions of law and fact. In the trial of cases de novo, the Court of Appeals must necessarily be controlled by the Code of Civil Procedure applicable to the Court of Common Pleas. An intolerable situation would result if the Court of Appeals in a trial de novo applied certain rules of procedure and rejected others.

Powers of reference are conferred on the Common Pleas Court. Section 11475, General Code, provides for reference by consent of the parties. Reference without consent is controlled by Section 11476, General Code, which provides:

“When the parties do not consent, the court, or a judge thereof in vacation, upon the application of a party, or of its or his motion, may direct a reference in any case in which the parties are not entitled by the Constitution to a trial by jury. ’ ’

Under this section, the trial court would have the authority to order a reference. Before the recent amendment to Section 6, Article IY of the Ohio Constitution, effective January 1, 1945, the court in Kiriakis v. Fountas, 109 Ohio St., 553, 143 N. E., 129, held:

“In a chancery case in the Court of Appeals, the parties have a constitutional right to have their case tried de novo, being permitted to introduce competent evidence under the legal rules applicable in the trial of questions of fact in trial courts. ’ ’

In Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849, the court, on page 418, said:

‘ ‘ However, in the plenary grant found in the constitutional provisions heretofore referred to, the parties in the trial of chancery cases have a right to have their case heard before the court de novo and to submit their evidence under the same legal rules applicable in the trial courts.”

See, also, Tinker v. Sauer, 105 Ohio St., 135, 136 N. E., 854.

In Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St., 221, 70 N. E. (2d), 649, the court, in discussing the effect of the amendment to Section 6, Article IV of the Ohio Constitution, held that unless and until there is legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted. It is logical to conclude that in the exercise of that jurisdiction the Courts of Appeals have the same authority with respect to procedural matters as before the amendment.

However, it should be noted that prior to the passage of the Appellate Procedure Act, which became effective January 1, 1936, Section 12223, General Code (103 Ohio Laws, 429), provided that:

“The Court of Appeals shall have jurisdiction of certain cases, as hereinafter provided, by appeal; and the trial therein shall be conducted in the same manner as in the Common Pleas Court * * *.”

The substance of that section is now embodied in Section 12223-21, General Code, which does not expressly provide that the trial shall be conducted in the same manner as in the Common Pleas Court. However, it does provide that there shall be a hearing de novo.

Under Section 12223-21, General Code, there is found a comment as follows :■

“It also provides that appeals upon questions of law and fact shall be tried de novo which would include all the common-law incidents of an original hearing as formerly included in General Code Section 12223.”

In our opinion, the provision in Section 12223-21, General Code, requiring a trial de novo in the Court of Appeals when an appeal is taken on questions of law and fact, confers on the Court of Appeals all powers incident to the trial of such cases in the Court of Common Pleas. However, we do not choose to rest the determination of the question of the authority of the Court of Appeals on the statutory authority of the trial court, but, also, we predicate such authority on the inherent power of courts of chancery to order a reference.

The right to a trial de novo in the Court of Appeals exists only in chancery cases. While the pronouncements of the courts of Ohio on this question are in the form of dicta, it has been consistently held that a court of chancery has the inherent power to order a reference. It should be noted that the preclusion of a compulsory reference in a jury case (See 11475, General Code) is due to the constitutional guaranty of the right to a trial by jury. 35 Ohio Jurisprudence, 106, Section 8; 45 American Jurisprudence, 543, Section 5. This constitutional guaranty does not extend to equity eases. Therefore, the statute (Section 11476, General Code) provides for a compulsory reference only in chancery cases. Without tracing the history of this section of the Code, we are convinced that it simply expresses the inherent power which chancery courts were permitted to exercise at common law. 45 American Jurisprudence, 552, Section 11.

In Johnson v. Wallace, 7 Ohio, pt. 2, page 62, the court in 1836, in a dictum, on page 63, said:

“The difficulties arising in cases of this kind, however, may be avoided by a resort to a court of equity, which has concurrent jurisdiction with the courts of law in cases of this description. Those long and perplexing accounts might then be referred to a competent master, and be far more satisfactorily adjusted.”

In Dillon v. City of Cleveland, supra, which was an action in equity, the fifth paragraph of the syllabus is as follows:

‘ ‘ The Court of Appeals has both inherent and statutory authority to direct a reference in chancery cases pending in that court on appeal from the Court of Common Pleas and has power to direct a referee to make findings of fact and report conclusions of law.”

However, in that case the reference was by consent of parties. In a dictum, Marshall, C. J., on page 267, said:

“Upon the inherent power of the court to direct a ■reference to a master, without statutory authority and without consent of the parties, judicial precedent is not lacking in Ohio.”

On page 268, in discussing the power to order a reference, the court said:

“If the power of the Court of Appeals to direct a reference is denied, it would create an anomalous situation. The Court of Common Pleas clearly has the right to direct a reference in chancery cases, and an appeal from the Common Pleas Court vacates the judgment. The case must then be tried de novo in the Court of Appeals. It would create an intolerable situation if complicated cases involving accounting were required to be heard in the Court of Appeals by all the judges without a reference.”

Again, on page 269, it is stated:

“The power of the Court of Appeals to direct a reference must be upon as firm a footing as the power of the Supreme Court to direct a reference in an original suit in this court, because there is no statutory authority for the Supreme Court to direct a reference. This court has, however, in numerous cases directed a reference, with authority to- make findings of fact and report conclusions of law, and in many of these instances without the agreement or express consent of the parties. The earliest reported case on this subject is Hays v. Jones, 27 Ohio St., 218, in which a case appealed from the Common Pleas Court of Payette County to the District Court, and by that court reserved to the Supreme Court, was sent by the Supreme Court to a master to report upon certain disputed facts. The latest cases in which a master has been appointed by this court are State, ex rel. Schultz, v. Carrel, Aud., 105 Ohio St., 351, 137 N. E., 915, in which a master was appointed to take testimony and make findings of fact, and State, ex rel. Crabbe, Atty. Gen., v. Wead, Aud., 113 Ohio St., 692, 150 N. E., 80, in which a referee was appointed, with power to make findings of fact and conclusions of law. ’ ’

In discussing the divergence of authority on the subject, the court, on page 270, said:

“The courts of some of the states of the Union have held that chancery courts have power to direct a reference, where not forbidden to do so by statutes. The courts of other states hold that there must be statutory authority. A third class holds that there is inherent power. In this state the courts have recognized the inherent power to direct a reference * * *. ”

In 45 American Jurisprudence, 551, Section 11, it is stated:

“The general rule applicable in equitable actions is that even in the absence of a statute authorizing it, a court of equity has inherent power to enter an order of compulsory reference.” (See references cited.)

In view of the pronouncements of the Supreme Court of Ohio on this subject and the statement of the general rule, we hold that this court in a de novo hearing as provided in Section 12223-21, General Code, has the inherent power to order the matter referred to a referee.

Application granted.

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


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Wolfson et al., d. b. a. Wolfson Realty Co., Appellants, v. Horn, Appellee.
    (No. 7728
    Decided May 18, 1953.)

      Messrs. Rosen & Rosen, for appellants.

      Mr. Allen Brown, for appellee.
   Matthews, P. J.

This is an appeal of an action commenced in the Municipal Court of Cincinnati to recover judgment for services rendered by the plaintiff as a real estate broker for and on behalf of the defendant. The Municipal Court rendered judgment for the plaintiff. On appeal to the Common Pleas Court, the judgment was reversed and final judgment rendered for the defendant. This appeal on questions of law is from that judgment.

A preliminary question is presented as to the sufficiency of the notice of appeal from the Municipal Court to the Common Pleas Court. It was recited in the notice of appeal that the appeal was “from the final order and judgment rendered herein on the 4th day of April, 1952.” A reference to the docket discloses that the judgment was rendered on March 3, 1952, and that April 4, 1952, was the date upon which a motion for a new trial was overruled. It is urged that this is an attempt to appeal from the order overruling the motion for a new trial, that such an order is not a final order, and that, therefore, no appeal can be taken therefrom.

We find the objection untenable for two reasons.

(1) An order overruling a motion for a new trial is an appealable order at the present time. In Jolley v. Martin Brothers Box Co., 158 Ohio St., 416, 109 N. E. (2d), 652, the Supreme Court, at pages 427 and 428, quoting from the Court of Appeals opinion, said:

‘ ‘ ‘ * * * Prior to recent amendments of the Code it was held that an order overruling a motion for new trial was not a final order from which an appeal may be taken. Under the amended sections of the Code motion for new trial is directed to the judgment as well as the verdict. State, ex rel. Simons, v. Kiser, 88 Ohio App., 181, 96 N. E. (2d), 306; Liebrand v. Butler, 88 Ohio App., 185, 97 N. E. (2d), 80. See Sections 11575, 11576 and 11578, General Code, as amended effective October 11, 1945. In McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225, the court held that in an action commenced after October 11, 1945, an order overruling a motion for new trial is a final order. This same ruling has been followed in Williams v. Martin, 82 Ohio App., 395, 81 N. E. (2d), 806; Caswell v. Lermann, 85 Ohio App., 200, 88 N. E. (2d), 405; Miller v. Miller, 56 Ohio Law Abs., 280, 91 N. E. (2d), 804. * # * This action being commenced in 1947, the order of the court overruling the motion to set aside the judgment and granting a new trial was a final order. ’ ’ ’

And on page 430, ibid., speaking for itself, the court said:

“This court is in agreement with the Court of Appeals in holding that an order of a trial court overruling a motion for judgment notwithstanding the verdict, if perfected as a final order, and a subsequent order by the same court in the same action overruling a motion for a new trial are subject to separate appeals which may be prosecuted in the sequence of such orders, and that appellant has a right to pursue successively, if necessary, but not concurrently, both remedies. ’ ’

(2) No objection was made in the Common Pleas Court to that court exercising jurisdiction under this notice of appeal. It is raised for the first time in this court. Had an objection been made in the Common Pleas Court, the defect, if any, could have been cured by amendment. It clearly comes too late when raised for the first time on appeal to this court. 2 Ohio Jurisprudence, 1684, Section 897.

The defendant owned real estate in Elmwood and was also a duly licensed real estate broker. Associated with him as a licensed salesman was Jack Mutchnik. The defendant authorized Mutchnik to secure an offer for his Elmwood real estate. Mutchnik sought the plaintiff’s services in obtaining a purchaser. He solicited Thelma Kaplan and G-orey Kaplan to make an offer, which they did. The plaintiff prepared an offer of $45,000 in triplicate on the standard printed form adopted by The Cincinnati Real Estate Board, which offer was signed by the Kaplans. This offer was presented to the defendant who objected to the price.' Negotiations as to price and agent’s commissions followed. During these negotiations, the price was changed by cancelling the original offer of $45,-000, which was typewritten, and inserting in longhand $47,500, and then at a later date again changed by cancelling the figure $47,500 and inserting $46,000. At some point, the defendant and his wife signed the acceptance. This probably occurred when the writing showed that the offer was $47,500. When the purchase price was changed from $47,500 to $46,000, it was presented to the Kaplans and they agreed to the change.

, A payment of $2,500 on the purchase price was made by check payable to the plaintiff and defendant jointly, and on defendant’s demand, the plaintiff endorsed and delivered the check to defendant, who deposited it in his bank account.

There is no doubt that the defendant became bound to sell his real estate to the Kaplans, unless his wife was not bound as claimed, and that that fact vitiated the entire transaction. In fact, he admits it and, in fact, later paid them $250 for his release.

The defendant and his wife testified that she signed when the purchase price was $47,500, and that she never consented to its reduction to $46,000. The plaintiff and defendant’s salesman, Mutchnik, testified that Mrs. Horn, in their presence, told the defendant that she left the matter of the price for his determination. The defendant’s subsequent conduct supports their testimony. He delivered the contract to the plaintiff with Mrs. Horn’s signature appended, took the payment of $2,500, and deposited it in his bank account. We believe the evidence that Mrs. Horn authorized her husband to bind her to this contract far outweighs the evidence to the contrary.

However, it is upon this state of the record that the defendant contends that the plaintiff is entitled to no commission, because, as one of the ostensible sellers was not bound, the buyers were not bound, and, therefore, he had not negotiated a binding contract by a willing and able purchaser, and, furthermore, as the wife refused to join in the deed and was not bound by the contract, a conveyance free of her right could not be specifically enforced. It should be said that the purchasers never raised this question. It should be noted too that this offer was not made to Harold E. Horn and Betty Horn by name. It was addressed to the “owner” represented by the plaintiff. It is admitted that the defendant was the owner and that the only interest his wife had was an inchoate right of dower.

But before the defendant could be heard to make this contention, it was necessary that it be found as a matter of fact that the wife was not bound by the contract. There was no such finding. On the contrary, as the Municipal Court found generally for the plaintiff, we must assume that all facts necessary to support that conclusion were so found. And, as already noted, such a finding is abundantly supported by the evidence in the record.

We, therefore, hold that, as under the finding of the trial court the wife was bound by the contract and could have been compelled to specifically perform by releasing or by being barred of her dower right, it is unnecessary to consider what effect her failure or refusal to join in the contract or her unauthorized signature thereto would have had upon the obligation of the purchaser or upon the defendant’s duty to pay a commission to the plaintiff.

As the written offer was prepared and submitted by the plaintiff, it contained the usual printed provision that the seller would pay the commission established by The Cincinnati Real Estate Board. This provision was never cancelled, but it is admitted that in the negotiations relating to the price the subject was discussed and that, to induce the defendant to agree to take $46,000 -for the property, the plaintiff agreed to reduce his share of the commission to $825. The contract bears the date of October 8,1951. In a letter dated October 9,1951, from the plaintiff to the defendant, the plaintiff stated: “I agree to accept eight hundred and twenty-five dollars as my broker’s share of the commission in the event the sale is made at $46,000.” This letter was sent to the defendant on his insistence, so that there would be no uncertainty on the subject of the commission. The defendant retained this letter and made no objection as to its not stating the agreement correctly. The record leaves no doubt that this reduction of plaintiff’s share of the commission was agreed to before the Kaplans agreed to raise their offer to $46,000. It appears also that the defendant retained the original and one copy of the contract and gave the buyers one copy, and that when they released him from his obligation, their copy was delivered to him. He produced all three copies at the trial. As produced, these contracts contained the provision following the printed provision relating to the commission, that “no commission due or payable until transfer of deed.” It is admitted that the defendant wrote it. He testified that he wrote it after he had told the plaintiff, and that plaintiff had agreed to it. The plaintiff denied that any such conversation took place and denied that the contract contained any such provision. Mutchnik corroborated the defendant’s testimony on this subject.

The retention of the plaintiff’s letter without protest was an implied admission that it correctly stated the agreement between the parties on the subject of commission for effecting the sale. The probative effect of this letter is increased by the fact that, according to the defendant’s own testimony, he requested the plaintiff to sign the statement that he would take $825 in full for his commission. If the plaintiff was to receive no commission in the event no deed was delivered, even though it resulted through the fault of the defendant, it would seem that the natural place for such a limitation upon his right would have been in the letter, the only purpose of which was to limit the plaintiff’s right to a commission.

We, therefore, conclude that there was certainly substantial evidence that the provision, “no commission due or payable until transfer of deed,” was not a part of the contract at the time plaintiff signed, and that he never agreed to that limitation upon his right.

The Municipal Court was the sole trier of the issues of fact in this case. The appeal to the Common Pleas Court was and the appeal to this court is on questions of law only. Neither court has jurisdiction to retry the facts.

It is true that on appeal on questions of law, the appellate court has jurisdiction to reverse the judgment when it finds that it is manifestly against the .weight of the evidence, but in determining that question, the Common Pleas Court is governed by the rule of law that every reasonable presumption must be indulged by it in favor of the validity and regularity of the judgment under review.

As is said in 2 Ohio Jurisprudence, 1152, Section 634:

“ * * * if the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”

There are many valid reasons for this rule. In Spangler v. Brown, 26 Ohio St., 389, at 393, this rule is placed in the category of law.

This case involves successive appeals on questions of law, in which the intermediate court reached a conclusion on the facts contrary to that reached by the trial court. It presents to this court the question of the rule governing this court on appeal from the judgment of reversal by the intermediate court.

In 2 Ohio Jurisprudence, 1150, Section 623, it is said on this subject:

‘ ‘ The rules relating to reversal on the weight of the evidence have special application in a case of succesive appeals on questions of law, as where a case is taken from a Municipal Court to the Common Pleas Court, and thence to a Court of Appeals, on such questions. In such a case, where the intermediate appellate court has reversed the judgment of the trial court on the weight of the evidence, the higher reviewing court will reverse the intermediate court and restore and affirm the judgment of the trial court if it determines that there was some evidence which was competent and credible in the record to sustain every element of the party who won in the trial court or if it finds that there was a conflict in the evidence, or, generally speaking, if it concludes that the judgment of the trial court was not against the manifest weight of the evidence, even though upon its previous review and examination of the record the intermediate court had reached a contrary conclusion. At least one Court of Appeals, however, has held that where it reviews a judgment of the Common Pleas Court which reversed a judgment of the Municipal Court as being against the weight of the evidence and remanded the case for new trial, it would not reverse such intermediate judgment of the Common Pleas Court although the testimony was conflicting in various respects and different inferences might be drawn from such conflict, although in a still later case, the same Court of Appeals, in deciding a case originating in the same Municipal Court which had been reversed by the same Common Pleas Court, held, without mentioning its earlier decision, that a judgment of the Municipal Court as trial court would be affirmed and that of the intermediate reviewing court would be reversed where the higher reviewing court was unable to say that there was not sufficient proof in the directly conflicting testimony to sustain the conclusions of the trial court.”

This text is based on three opinions by Courts of Appeals in one of which (Duberstein v. Globe Tool & Engine Co., 16 Ohio Law Abs., 350) some importance seems to be placed on the distinction between a reversal with a remand for a new trial and a reversal with a direction for final judgment for the appellant. The distinction is unimportant here, because final judgment was directed.

The Court of Common Pleas reached the conclusion that the defendant’s wife had not signed the modified contract, and that, as the purchasers supposed that they were making a contract with both Mr. and Mrs. Horn, no contract resulted, and, therefore, that the plaintiff had not produced a buyer who was ready, willing, and able to buy. As we have already pointed out, the Municipal Court could have very reasonably concluded that Mrs. Horn authorized her husband, in his discretion, to deliver this offer signed by her. If she did, she, of course, would be bound by the contract. If she did not, the defendant Horn, having delivered the written offer to the buyer, is in no position to take advantage of his own wrong. It is said that the plaintiff knew the defendant’s wife had declared that she would not join in a sale for less than $47,500, and owed a duty to inform the buyer. However, there is no evidence that he knew she had not authorized the defendant to deliver the modified offer with her signature appended, or that he was charged with the duty of so informing the buyer. The defendant’s agent, Mutchnik, was present at all times.

Furthermore, the buyers did not repudiate the contract when informed that the defendant’s wife claimed she was not bound. On the contrary, they insisted that defendant was bound, and only desisted when defendant secured his release by paying them $250.

Defendant’s counsel cites certain cases, of which Pfanz v. Humburg, 82 Ohio St., 1, 91 N. E., 863, 29 L. R. A. (N. S.), 533, is typical. We regard the cited cases as inapplicable, for the reason that in each of those cases no binding contract was effected, and the broker’s employer was free to withdraw from the transaction. The brokers were employed to sell, and no sale or contract to sell was consummated.

For these reasons, the judgment of the Common Pleas Court is reversed, and that of the Municipal Court of Cincinnati is affirmed.

Judgment reversed.

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


author: Ross, J.

text:
    The State of Ohio, Appellee, v. Dean, Appellant.
    (No. 214
    Decided May 29, 1953.)

      Mr. Raymond Bradford, prosecuting attorney, and Mr. Forrest E. Ely, for appellee.

      Mr. Hugh C. Nichols, Mr. B. N. West and Mr. John L. Watson, for appellant.
   Ross, J.

In this appeal on questions of law from a judgment of the Court of Common Pleas of Clermont County, this court is called upon to pass upon assigned errors alleged to have occurred in the trial and sentence of the defendant on an indictment charging that she did ‘ ‘ willfully, purposely, and by means of poison kill and murder one Hawkins Dean, by then and there knowingly, purposely, and unlawfully administering, and causing to be administered to the said Hawkins Dean, a large quantity of a certain deadly poison, called arsenic trioxide, with the intent willfully, purposely, and by means of poison, the said Hawldns Dean to kill and murder, and by reason of said poison administered on August 5, August 6, August 19 and on August 21, 1952, that the said Hawkins Dean died on August 22, 1952, contrary to Section 12400 of the General Code of the state of Ohio.”

The defendant was found guilty of the charge, without recommendation of mercy.

Motions for a new trial, including one on the ground of newly discovered evidence, were overruled, and the death penalty was imposed.

The gravity of the offense and the presence of the death penalty require a careful consideration of each and every claim of error asserted by counsel for the defendant.

At the outset of such consideration, however, the mandate of Section 13449-5, General Code, must also be borne in mind. The presence of error alone is not sufficient. It must also have been so prejudicial to the rights of the defendant that she “was prevented from having a fair trial.” With this preliminary comment, the assignments of error are now considered, without a statement here of the facts.developed from the evidence, which facts will be disclosed in the consideration of the several assignments of error.

I. It is claimed that “the trial court erred in overruling the defendant’s motion for new trial” in that “the trial court should have granted defendant’s request to charge in the general charge on the lesser degrees, to wit: Murder in the second degree and manslaughter. ’ ’

This claim is untenable for the reason that there is no evidence in the record which would sustain a conviction of either of such lesser offenses. The case of the prosecution was solely predicated upon the charge that the defendant willfully administered poison to her husband with intent to kill. The defense was predicated upon a flat denial that defendant so administered poison. She was either guilty of the principal charge, or she was not guilty of any crime.

The basis for the defendant’s claim of error under this heading is that it is asserted that she represented to the prosecution that she might have accidentally poisoned her husband, or that she gave him poison to make him sick so he would quit work. In her testimony, she categorically denied that she ever gave her husband poison for any purpose. She was asked the following questions by her counsel and gave the following answers:

“Q. Just one more question, Mrs. Dean, I want to ask you one more time, did you at any time give Hawkins Dean any thing * * *. A. You mean in the way of poison?

“Q. * * * in the way of poison, which would kill him or intend to kill him? A. No.”

The defendant made some reference to a “white powder” which she gave the deceased and which was supposed to be some sort of medicine he was taking. There never was any positive charge or proof that such medicine contained arsenic. It was never found. On the other hand, the defendant confessed to having given her husband rat poison from a certain bottle which was placed in evidence. Analysis showed the type of poison in the bottle to be identical with the type of poison found in the liver, brain, muscles, stomach, spleen, kidneys, lungs, heart, blood, and even the bones of the deceased.

Even if it were in evidence that defendant had given the deceased such rat poison or any other poison accidentally, such fact would not have justified a charge on lesser offenses, since, in effect, the introduction of such evidence would still be a denial of willful intent to murder and not an admission of any lesser offense, there being no claim that the accidental administration of poison occurred in connection with some unlawful act. The defense consisted of a repudiation of repeated confessions of guilt and a flat denial of any guilt of the charge set forth in the indictment.

No error intervened in the refusal of the court to charge on lesser offenses. Malone v. State, 130 Ohio St., 443, 200 N. E., 473; Bandy v. State, 102 Ohio St., 384, 131 N. E., 499, 21 A. L. R., 594; State v. Hahn, 59 Ohio App., 178, 17 N. E. (2d), 392, appeals dismissed, 133 Ohio St., 440, 14 N. E. (2d), 354, 305 U. S., 557, 83 L. Ed., 351, 59 S. Ct., 75.

Included under this first assignment is a claim that the court erroneously refused to charge that “if you find that the confession was made for the purpose of shielding some other person and did not set forth the true facts then such confession should be disregarded. ”

The general charge of the court on confession and admission of guilt shows that the court fully and fairly covered the proper and required instructions upon this subject. The court conducted an extensive examination, in the absence of the jury, covering the circumstances surrounding the confessions, and the jury also was later made fully aware of all that occurred incident thereto. It was for the jury to determine whether the defendant had been influenced to make an untrue statement for the protection of another’s guilt. An examination of the whole record is conclusive that such was not the case. The defendant repeated her admission of guilt many times, both before and after her written confession. Particularly is this true in the case of her conversation with the examining magistrate, who gave her every opportunity to state the truth.

There was no error in refusing the request, in view of the extent and character of the general charge.

11. The second assignment of error is: “The trial court erred in allowing state’s exhibit No. 5 to be introduced into evidence. This was the alleged written confession of the defendant.”

This assignment is predicated on three main contentions :

1. That defendant was induced to confess, because she was led to believe that her son was charged with the crime.

2. That the defendant was assured there would be no death penalty if she confessed.

3. That she was kept in custody for'nine days and subjected to constant questioning, and, after a long tedious experience, including a trip to London and submission to a lie-detector test, followed by questioning until five o’clock in the morning, she confessed from sheer exhaustion.

These several bases for this assignment are so involved with each other that they must be considered together.

The evidence shows that the defendant went to work for the deceased as a housekeeper; that sometime prior to April 12, 1952, they became engaged; that on April 12, 1952, the deceased was induced to make a will in favor of the defendant, leaving her a life estate in all his property; and that they were married on April 13, 1952. There is evidence that this was not a happy marriage; that on August 7, 1952, the deceased was taken violently ill and was taken to the hospital; that he was treated for symptoms then apparent and returned home on August 15, 1952; that thereafter he appeared in good health; that on August 21, 1952, he was again taken violently ill, and died at his home August 22, 1952; and that an autopsy was performed showing arsenic poisoning.

The defendant was taken into custody on September 3, 1952, and kept in custody until September 12, 1952, when she confessed. No charge of any kind was filed against the defendant until after her confession. Her son and son-in-law also were under suspicion during this period. On September 12, 1952, the defendant was taken to London, Ohio, for a lie-detector test, the result of which is not in evidence. She was returned to the jail in Batavia, Ohio, where, after a short time, she was again questioned. She had a private conference with the prosecutor, which will be the subject of later c'omment. She was confronted with the statement, “It is down to you or your son.” And she then was told, “All right then you are accusing your son,” and she then said, “All, right, if it is my son or I, I’ll say I did it.” She then signed a written confession which was signed by her son as a witness. During the examination she stated, “I have become a Christian and I want to tell you the whole story. ’’

It appears that the poison she administered to the deceased was purchased by him for the purpose of exterminating rats. The defendant described the bottle from which she took the poison and upon being shown a bottle said that this bottle was not the one she used, and that the one from which she took the poison had a black cap; and she told where it could be found. It was later found and on September 12 shown her, and she identified it as the one she used. She was requested to show what dosage she gave the deceased arid, according to the witness, it was apparently a teaspoonful. In this connection, on being asked to show how she poured out the poison, a glass was given her to demonstrate, and the defendant made the following significant statement in her cross-examination:

“Q. Did you pour from one glass to another, indicating how much you gave him? A. I tried to but I couldn’t pour out of a glass like I could out of a bottle.”

Before making her confession, the defendant was fully cautioned as to her rights and the consequences of a confession. At no time did the defendant make any objection to her restraint or to questioning. She admitted that she had been treated “correctly” during the day of her trip to London. At no time did the defendant complain of fatigue, and in fact stated during the evening when she made her confession: “I can stay here for two or three days if you want me to. ’ ’

It is true that had the evidence shown that the defendant had been abused during her stay in jail previous to confessing, or that she had requested counsel and been refused, or that she was suffering from fatigue and exhaustion when she made her confession or before, such ground for error would have been present. None of these conditions existed. It is only in her statements in support of her motion for a new trial on the ground of newly discovered evidence that any suggesteion of duress is apparent.

It is strange that any suggestion of this contention first appears at this stage of the proceedings. In this connection, this motion was properly overruled, no ground having been shown for the granting of same.

As to the claim that the confession should have been excluded because induced by a desire to protect her son, the record is replete with evidence that the defendant was not confessing to a crime she did not commit, and that she did not want her son charged with a crime which she knew she had committed. An entirely different slant is shown in her position where, in her testimony, she stated: “Well they told me that .Carl said he knew I done it and they told me my children had turned against me and I didn’t feel I had anything to live for.” This certainly does not bear out the claim that the defendant confessed to save Carl from an unjust charge.

The claim that the defendant was induced to confess by promises of immunity from death rests upon an outburst by her daughter on the witness stand, which seems to have been unconnected with the course of the examination then taking place. Certainly, at no time did the defendant make any such claim. Some attempt was made to show that the defendant was subject to mental strain. It is to be noted that she had been taken to Lima State Hospital and was found to be fit for trial under the indictment. In no respect did the evidence of her psychiatrist (who conferred with her for only half an hour) sustain any claim that she was of such a mentality as not to comprehend the nature and consequences of her confession.

III. The third assignment of error deals with charges of misconduct by the prosecuting attorney and his assistant. Only one of the several charges requires comment.

In the closing argument of the prosecution, there appear statements wholly improper, especially in a closing argument to the jury. The prosecutor related a private conference with the defendant as to which he stated facts which he had not testified to as a witness, and which, by reason of the fact that only the prosecutor and defendant were present, could be proved only by the sworn testimony of the prosecutor or admissions of the defendant. A part of the statements made by the prosecutor as to this conference was admitted by the defendant. She admitted that this private conference took place, and that the prosecutor said: “Mrs. Dean, I don’t want anything in this case but what is the truth.” The defendant, however, did not admit that she had confessed to the prosecutor, as he stated in his argument.

The action of the prosecutor in making statements in his closing argument, which were not sustained by the record, constituted misconduct on his part. Objection to this was made by the defendant’s counsel. The court merely said, “Confine your argument to the facts and proceed,” and did not then instruct the jury to disregard the statements of the prosecutor. Even after such mild statement by the court, the prosecutor continued to narrate matters that were not in evidence. Unquestionably, all this constituted error. Was it of such a character as to be prejudicial and to warrant setting aside the verdict? Although the court failed to instruct the jury to disregard the statements of counsel as it should have done at the time objection was made, it did instruct the jury in its general charge to that effect, as follows:

“At the conclusion of all of the evidence, counsel for both sides are permitted to argue the case to you of the jury. The purpose of these arguments is to aid the jury in arriving at a correct solution of the questions presented. The legitimate scope of argument is confined to the evidence and what counsel claim are reasonable inferences to be drawn from that evidence. If counsel for either side have gone outside of the evidence and the reasonable inferences to be drawn therefrom, you are to disregard the arguments insofar as that was done, in arriving at your final conclusion.

“You must distinguish between mere arguments which are made before you and the evidence upon which these arguments rest. You may carefully distinguish and analyze the basis of the assertions which are made to yon by either side and see what basis they have in the evidence.”

Aside from this, the evidence is conclusive as to the guilt of the defendant. Her confessions were repeated many times to different persons. One statement, as follows, is significant:

“Q. Now, I will ask you whether or not you asked her about the administering of the poisoning on the 5th and 6th days of September and his consequent hospitalization? A. The 5th and 6th of August you mean.

“Q. 5th and 6th of August, yes, sin — excuse me. A. She said that after having given him the poison on the 5th and 6th of August'that he had gone to the hospital and returned apparently a well man. She said that ‘having been to the hospital for a week and they didn’t find out what was wrong with him, I was reasonably sure I could get away with poisoning him.’ ”

No serious claim is made by the defendant that she was tortured or mistreated at any time, or that she made her several statements admitting guilt under strain or duress. She described in detail the several circumstances involved in the administration of the poison. The jury had before it the witnesses and could fully judge as to their credibility and veracity. A reading of the entire record leaves the conviction that the defendant had a fair and impartial trial and is guilty of the offense with which she was charged.

While the misconduct involved and the inaction of the court may have constituted error, in view of the inescapable conclusions from the entire record, such error cannot be said to have been prejudicial to the rights of the defendant to a fair and impartial trial. State v. Nevius, 147 Ohio St., 263, 284, 71 N. E. (2d), 258, certiorari denied, 331 U. S., 839, 91 L. Ed., 1851, 67 S. Ct., 1521; State v. Moon, 124 Ohio St., 465, 470, 179 N. E., 350; Section 13449-5, General Code.

It may properly be added here that each of the judges of this court conducted an independent and individual perusal of the record, exhibits and briefs, and, as will appear, reached the same conclusion of guilt.

The judgment is affirmed.

Judgment affirmed.

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


author: Per Curiam.

text:
    A. E. F. Veterans Association, 37th Division, Appellant, v. Bd. of Liquor Control et al., Appellees.
    (No. 4833
    Decided March 20, 1953.)

      Mr. Paul F. Ward, Mr. James S. Kimble and Mr. Robert R. Shaw, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Ralph N. Mahaffey, for appellees.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Franklin County affirming an order of the Board of Liquor Control revoking a D-4 permit under which the A. E. F. Veterans Association, 37th Division, operated as a “club” in Steubenville, Ohio.

The Board of Liquor Control, after a hearing, revoked the permit on the ground that the permit holder did not operate a bona fide private club, and also on the ground that in its application for a permit it made certain false material statements, all in violation of the provisions of the Ohio Liquor Control Act.

Upon appeal the Common Pleas Court affirmed the order of the board.

In the application for a permit the statement was made that the permit holder was a corporation not for profit, whereas in truth and in fact it was not a corporation but was an association. Under the provisions of Section 6064-25, General Code, the board may revoke a permit “for making any false material statement in an application.” The statement was false. Was it a false material statement? A statement made in an application may be material or immaterial, depending on the circumstances. Where it clearly appears that the substance of the false statement consists of information as to which the board will not exercise discretion or which will have no bearing in determining whether the permit shall be granted, such false statement wi,ll not be regarded as material; but where the false statement affects the procedural steps to be taken by the board in arriving at a decision on the application or where the board is required to exercise some discretion on the information given, such statement will be regarded as a false material statement. The false statement cannot be regarded as immaterial simply because Section 6064-1, General Code, defines a club as a corporation or an association. If the club is an association as distinguished from a corporation, additional information is required by the board as indicated in the record before making a decision on the application.

Since we find no error in the record prejudicial to the appellant, the judgment is affirmed.

Judgment affirmed.

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


author:
Fess, J.
      Conn, J.,

text:
    The Sandusky Elks Home Assn., Appellee, v. Szendery et al., Appellants.
    (No. 659
    Decided April 13, 1953.)

      Mr. C. E. Moyer, Mr. B. O. Zeiher and Mr. Wilbert O. Schwer, for appellee.

      Messrs. Clarke é Costello, for appellants.
   Fess, J.

This cause came on for hearing on an appeal on questions of law and fact, and the plaintiff offered as evidence on its behalf the transcript of the testimony taken in the Common Pleas Court. Defendants, appellants herein, object to the introduction of the transcript as evidence. This court has not adopted the rules of procedure which were adopted by the judges of the Courts of Appeals at their annual meeting on September 21, 1948.

Rule XIII of this court provides as follows:

“On trial of actions originally commenced in the Court of Appeals and of cases appealed thereto on questions of law and fact, no oral testimony will be received. If testimony other than that preserved in the lower court is required by either party, it may be taken in manner and form as the parties agree, or by a referee or master appointed by the court, or by depositions according to law.

“Either party may offer any written agreed statement and such parts or the whole of any transcript of testimony taken in the lower court or as aforesaid, and of any deposition or other written documentary or record evidence or other exhibit as he may desire, reserving all questions of competency to the court. The costs of any such transcript of testimony shall be paid, in the first instance by the party procuring the same, subject to any final order or judgment of the court.

“Unless testimony of witnesses to be presented on the trial of actions originally commenced in this court, and in cases appealed thereto on questions of law and fact, be reduced to writing as aforesaid and filed in the court before such case is assigned for trial, the cause will be referred for trial or the taking of sucb testimony according to law. ’ ’

Under the provisions of this rule, the plaintiff is entitled to offer on its behalf such parts of the transcript of the testimony taken below as it may see fit. But the Supreme Court has held that, although the procedure contemplated by a similar rule is commendable, under the plenary grant of the Constitution permitting the parties in chancery cases to be heard de novo on appeal, litigants have the right to submit their evidence to the appellate court under the same legal rules applicable in trial courts. Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849; Dehmer v. Campbell, 124 Ohio St., 634, 180 N. E., 267. The objection is, therefore, sustained.

This court possesses inherent power to adopt such reasonable rules as it may deem necessary to govern its proceedings and to facilitate the administration of its business, provided such rules do not conflict with the Constitution or a valid statute. Meyer v. Brinsky, 129 Ohio St., 371, 195 N. E., 702; Brown v. Mossop, Admr., 139 Ohio St., 24, 37 N. E. (2d), 598. That portion of the rule which permits a party to offer the transcript has been declared to be in conflict with the Constitution, but the provision that no oral testimony shall be received and that the testimony shall be taken by a referee or master appointed by the court, or by deposition according to law, is a valid exercise of the rule-making power in the interest of facilitating the business of the court. The demand that oral testimony be taken is, therefore, denied, and the case will be referred to a master for further proceedings.

Judgment accordingly.

Deeds, J., concurs.

Conn, J.,

dissenting. Defendants have appealed to this court on questions of law and fact from a judgment of the Court of Common Pleas. A transcript of the evidence taken in the court below was filed in this court. When the case was reached for trial, plaintiff offered this transcript in evidence. Thereupon, the defendants objected to the receipt of the transcript and moved the court to appoint a referee to take testimony.

The motion of defendants raises an issue as to the validity of Rule XIII of this court.

It is uniformly recognized that courts have the inherent right to formulate and adopt reasonable rules to govern their proceedings, providing such rules do not contravene a valid statute or the Constitution. Pursuant to this power, the Court of Appeals of this district on February 10, 1923, adopted a rule, then known as Rule XVI, the pertinent provisions of which were as follows:

“On trials of cases appealed to the Court of Ap: peals, no oral testimony will be received. If testimony other than that preserved in the lower court is required by either party, it may be taken in manner and form as the parties agree, or by a referee or master appointed by the court or by depositions according to law.

“Either party may offer any written agreed statement and such parts or the whole of any transcript of testimony taken in the lower court or as aforesaid. # # # J >

The foregoing provisions of Rule XVI have been retained through the years without successful challenge. Changes have been made in numbering, and the rule containing the above provisions is now known as Rule XIII.

In the new Appellate Procedure Act, the Legislature confirmed the rule-making power of the courts by expressly authorizing the Courts of Appeals to make rules, subject to the approval of the Supreme Court “for the purpose of making this act effective for the convenient administration of justice or of, otherwise, simplifying judicial procedure.” Section 12223-47, General Code.

Subdivision 3 of Section 1 of the act (Section 12223-1, General Code), defines an appeal on questions of law and fact as a “ rehearing and retrial of a cause upon law and the facts * * The evident purpose of the Legislature in enacting the statute providing the new procedure on appeal was to simplify the review and rehearing of cases on appeal. The rule under consideration has a like purpose.

It is contended by defendants that the right to a trial de novo includes the taking or retaking of all evidence in this court, in the manner prescribed by Rule XIII, without regard for the transcript of testimony taken in the Common Pleas Court, and to its complete exclusion.

Defendants rely on the cases of Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849, and Dehmer v. Campbell, 124 Ohio St., 634, 180 N. E., 267. These cases appear to lend support to defendants’ contention. Both preceded the enactment of the Appellate Procedure Act, which expressly confirmed the rule-making power of the courts “for the convenient administration of justice.”

In the Union Trust Co. case, supra, both appeal and error proceedings were involved and the primary issues related to -the character of the appeal. No issue was raised as to the conduct of a trial de novo, notwithstanding references thereto were made in the opinion at page 419 and in the syllabus. In Dehmer v. Campbell, supra, the court approved and followed the Union Trust Co. case without further exposition.

It is my opinion that the cases relied on by defendants are not decisive of the question presented by defendants’ motion. The question before us relates to the validity of Rule XIII. Is this rule invalid on the ground that it denies defendants a trial de novo? It takes away no right of defendants to amend pleadings, introduce additional evidence, or complete their record in this court. It does prevent interminable delays and unnecessary expense, as either party has the option to use any part or all of the transcript.

It is not apparent how a litigant in any case on appeal on questions of law and fact can be prejudiced at this late date by Rule XIII, honored as it has been with many years of fruitful service in its reasonable application to procedure in this court.

I would deny the motion of defendants and immediately appoint a master or referee to take such additional testimony as the parties or either of them wish to introduce, unless the parties agree on some other method, and thereby avoid further delay in adjudication of the issues in this case.


text:
    Federal Telephone & Radio Corp., Appellee, v. Wysong et al., Appellants.
    (No. 2241
    Decided May 14, 1953.)

      Messrs. Wasserman & Talbot, for appellee.

      Mr. D. H. Wysong, for appellants.
   Per Curiam.

This matter is submitted on the motion of appellee to dismiss the appeal for the reason that the appeal was not perfected within 20 days of the filing of the final order.

An appeal on questions of law was taken from the Municipal Court of Dayton to the Common Pleas Court, which latter court affirmed the judgment of the Municipal Court on February 14, 1953. This entry was approved by counsel for appellee, and a mandate was issued to the Municipal Court. On March 9, 1953, counsel for appellant filed in the Common Pleas Court an application for reconsideration. The court passed on this motion and on March 25, 1953, an entry was journalized in the Common Pleas Court overruling the application for reconsideration. In this latter entry, the court again affirmed the judgment of the Municipal Court. However, the court, in its order journalized February 14, 1953, had exhausted its jurisdiction, and since this order was never vacated, it stands as the only appealable final order.

The fact that the court in a later entry again affirmed the judgment did not have any legal effect and would not extend the time within which an appeal could be perfected. The order of March 25, 1953, was not a final order.

The notice of appeal having been filed on March 26, 1953, it was not filed within 20 days of the final order dated February 14,1953.

The motion to dismiss is sustained.

Motion sustained.

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


author: Gillen, P. J.

text:
    Morrison, Appellant, v. Steppe’s Beauticians, Inc., Appellee.
    (No. 516
    Decided March 24, 1953.)

      Messrs. Rowland, Bridgewater & Gray and Messrs. Rowland & Rowland, for appellant.

      Mr. John W. Bolin, for appellee.
   Gillen, P. J.

Plaintiff instituted this action in the Court of Common Pleas of Athens County to recover damage for certain injuries sustained by her while she was receiving a machineless permanent wave in defendant’s beauty shop.

The petition alleges in part:

‘ ‘ On and prior to October 20,1950, defendant owned and operated a beauty shop in the city of Athens, Athens county, Ohio, and employed therein, among others, one Genevieve Reigle, who, as such employee of defendant, on said date, undertook to give plaintiff’s hair what is commonly known as a ‘permanent wave’ and in so doing and while in the exclusive use, application and control of defendant’s equipment and chemicals negligently caused plaintiff to suffer a third degree burn in the hair covered portion of plaintiff’s neck to the left of the midline thereof. ’ ’

It is claimed that an infection developed from the burn, and that the poison from such infection spread through plaintiff’s body, causing her to suffer a complete nervous and physical prostration.

The answer filed by defendant denies the allegations of the petition and avers that plaintiff’s nervous condition existed prior to the alleged injury and resulted from causes other than the burn.

At the close of plaintiff’s testimony, counsel for defendant moved for a directed verdict and requested the court to remove the doctrine of res ipsa loquitur from the case. This motion was taken under advisement by the court. At the close of defendant’s testimony the motion was renewed. At that time the trial court ruled that the doctrine of res ipsa loquitur was not applicable, but refused to direct a verdict for defendant. The case was submitted to the jury on the theory of actionable negligence, resulting in a verdict for plaintiff in the sum of $8,250.

Seven interrogatories were submitted to the jury, some of which were signed by fewer than nine members thereof upon the advice of the court that only those members agreeing upon each interrogatory should sign.

Thereafter, the trial court sustained defendant’s motion for judgment notwithstanding the verdict and rendered final judgment for defendant on three grounds, namely, (1) that the petition did not state a cause of action, (2) that the jury’s answer to interrogatory No. 1 was inconsistent with the general verdict, and (3) that substantial justice had been done.

The record discloses that while plaintiff was receiving the permanent wave she complained to the operator that her neck was becoming too hot. The operator admitted this fact, and there is no dispute about the complaint having been made. Plaintiff testified that the operator had left the room, that she called to the operator to advise about the heat, and that, after some delay, the operator returned and placed some cotton under the pad. The operator claimed, however, that she did not leave the room, and that she immediately removed one of the chemical sachets to relieve the situation. There is no conflict in the testimony on two points, i. e., (1) the complaint about the heat, and (2) the operator’s effort to render relief. There is dispute about the manner of relief and the promptness of the operator in furnishing it. The method of giving a maehineless wave is best described by the witness, Eula Mae Olasin, as follows :

“Q. In a machineless wave how is it applied? A. Machineless, with a chemical pad that has been saturated with water.

“Q. What happens to the chemical pad after it has been moistened with water in regard to generating heat? A. It gets hot.

“Q. If you put the chemical pad and moisten it and put it on the hair of a customer incident to giving a machineless wave would the heat burn the customer unless there was some protective device used to protect the scalp? A. Yes.

“Q. Is the protective device that is used, is it commonly referred to as a pad that is placed next to the scalp of the person? A. Yes. A pad.

“Q. And the pad is between the heat and the scalp^ is that right? A. It is one of the items between the heat and the scalp, yes.

‘ ‘ Q. Then the use of the pad is the normal and usual means and method to protect the scalp from the heat? A. Right.

“Q. And is it your statement that without the protection the heat would burn the scalp ? A. Yes.

• “Q. Now in the giving of a machineless wave in a beauty shop who controls the preparation of the hair for waving, the placing of the protective devices between the heat and the scalp and the application of the heat? A. The operator.”

The evidence reveals that the maximum temperature generated by the chemical sachets- used in giving a machineless wave is 212 degrees Fahrenheit. It establishes, also, without contradictiojn., that defendant’s operator had exclusive use, application and control of all equipment and chemicals used in the process.

The petition does not allege any specific act or acts of negligence, but does allege in general terms that the work was performed in a negligent manner. Plaintiff did not attempt to prove any specific act of negligence, nor did she attempt to explain how the injury occurred. She offered proof, however, that the mechanical devices used and the performance of the work were under the exclusive management and control of the operator, and that during the process she received the burn.

It was said in the case of Rospert v. Old Fort Mills, Inc., 81 Ohio App., 241, 243, 78 N. E. (2d), 909, that:

“The doctrine of res ipsa loquitur is one of evidence and not of substantive law. It is a common-sense appraisal of the probative value of circumstantial evidence. It was not intended to exempt a plaintiff from the general burden of proving the negligence of the defendant or from proving such facts and circumstances which would make negligence a legal inference. In other words, until the plaintiff has presented all the testimony reasonably within his power he can derive no benefit from this doctrine. ’ ’

In the instant case, we are of the opinion that plaintiff presented all the evidence reasonably within her power to explain the cause of the injury. The ease is one in which the application of the res ipsa loquitur doctrine is eminently just and proper. The devices used in the process were under the exclusive control of the defendant. The injury was one which in the natural course of things would not have occurred had defendant used due care, and plaintiff was, therefore, entitled to recover, unless the defendant offered a satisfactory explanation to overcome the inference of its negligence.

It is said in the case of Glowacki, a Minor, v. North Western Ohio Ry. & Power Co., 116 Ohio St., 451, 157 N. E., 21, 53 A. L. R., 1486, that:

“1. The rule of res ipsa loquitur is not a substantive rule of law. It is rather a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury is under the exclusive management and control of one of the parties and an accident occurs under circumstances where in the ordinary course of events it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury, but to be considered by the jury under proper instructions. A like inference under like circumstances may be drawn by the court when the court is the trier of the facts.”

In the case at bar defendant sought to prove that the work was performed in strict compliance with the established custom, and that due care was exercised by the operator. Whether this evidence was sufficient to overcome the inference of negligence was a proper question for the jury to decide. It was incumbent upon defendant to overcome the inference of negligence with some satisfactory explanation or proof, since the circumstances were such as to warrant the jury in drawing such inference. Numerous cases referring to the doctrine of res ipsa loquitur have been cited by counsel, each of which has been carefully examined by us. The case of Chauvin v. Krupin, 4 Cal. App. (2d), 322, 40 P. (2d), 904, presents a factual situation paralleling the case at bar. We are in full accord with the reasoning of the court in that case. We are of the opinion that plaintiff was entitled to recover unless the defendant offered a satisfactory explanation to overcome the inference of its negligence. By refusing to apply the doctrine of res ipsa loquitur, the trial court deprived the jury of its right to determine that issue from the evidence. We are of the opinion, therefore, that prejudicial error was committed, thereby depriving plaintiff of a fair trial.

Our attention has been directed to the manner in which the special interrogatories were submitted. It is apparent from the record that considerable confusion existed in the minds of the jurors in regard to this matter. After the jury had deliberated for some time, a request was made for additional instructions as to the manner in which the interrogatories should be signed. The trial court endeavored to clear up this situation and, in our opinion, the jury was properly advised in relation thereto. However, after the jury returned to its deliberations and reached a general verdict, it failed to sign the interrogatories and had to be ordered back to the jury room to perform that duty. The entire situation indicates that the jury failed to understand its clear duty in regard to answering the interrogatories. Under such circumstances, we can not say that the answers to the interrogatories provided a fair test of the general verdict. In our opinion, the trial court was in error in sustaining defendant’s motion for judgment notwithstanding the verdict. We have carefully considered plaintiff’s request to have the verdict of the jury reinstated and final judgment rendered thereon. It is our opinion, however, that justice requires the granting of a new trial. The judgment of the court below is, therefore, reversed, and the cause is remanded to that court.

Judgment reversed.

McCurdy and Collier, JJ., concur.


author: Fess, J.

text:
    Widmer et al., Appellants, v. Fretti et al., Appellees.

      (No. 4586
    Decided January 28, 1952.)

      Messrs-. Ohlinger, Holes, Wolf & Flues, for appellants.

      Mr. Dan H. McCullough, Mr. Harry B. Illman, Messrs. Farter, Cochrane, Oreen é Schrader and Messrs. Hayward & O’Connor, for appellees.
   Fess, J.

Plaintiffs, George L. and Marie Widmer, husband and wife, bring their action against Joe Fretti and 15 other defendants to enjoin the maintenance and operation of a gambling resort known as the Benore Eoad Club and located on Benore road in Washington township, Lucas county, Ohio; and, as an incident to equitable relief, seek $40,000 damages for deprivation of property right's and of the quiet, peaceful and comfortable enjoyment of their home on Benore road, and for attorney fees. Upon the filing of the petition, the Common Pleas Court granted a temporary injunction. Upon final hearing, the petition was dismissed, the injunction bond released, and the temporary injunction vacated and dissolved.

Plaintiffs own a 144-acre farm fronting on the north side of Benore road, situated partly in Ohio and partly in Michigan. The property is intersected by the tracks of the New York Central Railroad, which extend for a half mile or so through the farm, the major portion of the farm being west of the railroad. It has a total frontage on Benore road of 1,200 feet. The Widmer home sets back from Benore road a distance of 469 feet, and is 491 feet west of the railroad. The house, comprising 10 rooms, was built in 1820, and has since been completely modernized.

Although there are a number of modest small homes in the vicinity of the Widmer property, the surrounding area is nonresidential and is not conducive to residential development. Under the Washington township zoning ordinance, the property north of Benore road is zoned for agricultural uses and that to the south is zoned for industrial uses. A manufacturing establishment occupies the property formerly operated as the Club Devon. West of the Widmer home is a. small township cemetery. Benore road dead-ends at the Dixie highway (a main thoroughfare), about one-quarter mile west of the Widmer property. On the south side of Benore road near the Dixie highway are four small homes which were built some years ago. At the end of Benore road on the west side of the Dixie highway is a tavern with a trash dump adjacent thereto. Between the Benore Club and the Widmer home is a three-track main line of the New York Central Railroad, crossing Benore road at grade, and about one-half mile further to the east is the viaduct of the hump leading into the classification yard of the Michigan Central Railroad. Between the old Club Devon property and the New York Central Railroad crossing and opposite the Widmer farm are the remains of dog kennels of an abandoned dog-racing track, one or two trailers, several sheds and a small packing plant with adjacent stock pens. West of and adjacent to the New York Central Railroad tracks are two fairly large greenhouses. The one-half mile distance between the two railroad crossings is occupied by three residences to the south and, also, two to the north of Benore road. In 1925, Marquette Place, lying west of the Club Devon, was platted for residential purposes, but only one house has been built therein. Within a mile or so south from the Widmer property, along the Dixie highway, are several automobile “junkyards” used for the storage of wrecked or worn-out motor vehicles, and, also, three notorious gambling resorts.

A great volume of testimony was received pro and con as to the possibility of developing the Widmer property for residential purposes. But the character of the surroundings and the expense of development incident to the platting and installation of water, sewer and other utilities does not warrant the conclusion that plaintiff’s property has any potential value for future platting and sale of lots. The evidence fails to show that the operation of the gambling house impairs the value of the Widmer property for industrial development or for agriculture.

Evidence with regard to a number of civil and criminal proceedings in which certain of the defendants were involved, and wherein no admissions or pleas of guilty appear, has been rejected. The record comprises over 600 pages. Page after page relates to extraneous issues, such as whether the proximity of a railroad to property has any effect upon its future development for residential purposes. The court was fully enlightened to the extent of boredom regarding various and sundry real estate promotions running the gamut of blighted areas to Ottawa Hills village. Nevertheless, we have endeavored to sift the grain from the chaff and apply the law to the pertinent facts as disclosed by admissible evidence. An attempt was made to introduce testimony with respect to admissions made by the defendant Joe Fretti before the so-called Kefauver committee. The objection to this evidence is sustained because of lack of identification of the voice of Fretti by the witness who attended the hearing but who was not present in the room where the hearing was conducted.

In 1941, certain of the defendants constructed a large gambling casino, known as the Club Devon, across Benore road from plaintiffs’ home. Mrs. Widmer’s efforts to close the place proved unavailing. In 1942, plaintiffs sold the gamblers 33 acres of their farm south of Benore road for $12,500, and the Club Devon continued to operate as a gambling place until padlocked by order of the Common Pleas Court in the spring of 1944. In the criminal proceedings brought against certain of the defendants herein, each was given a workhouse sentence, and imposition of part of the sentences was suspended and the defendants placed - on probation during good behavior for a period of three years. Following the closing of the Club Devon, plaintiffs further improved their home and the grounds surrounding it. In November 1946, the defendant Joe Fretti told the plaintiffs that “our parole will soon be over. We want to open up. again. It will either be on State Line road or east of the track.” In May 1947, two parcels of property comprising nine acres south of Benore road and immediately east of the underpass of the Michigan Central Railroad were conveyed to the defendant Hyman Chait, and in 1948 he acquired 15 additional acres. The Benore Club was erected upon this property, and the evidence is conclusive that extensive gambling was continuously conducted on the premises. The “club” was eight-tenths of a mile from the Widmer home. By reason of the underpass, the building can not be seen from the plaintiffs’ home. The club was also surrounded by a high board fence which insured privacy.

The evidence tends to show that after the club opened, traffic on Benore road past plaintiffs’ property increased materially, particularly over the weekend. “Fish wagons” and taxicabs contributed to increase the flow of traffic on the highway. One witness testified that when the club was not operating, traffic decreased by 50 per cent. On occasion, when traffic was blocked by the New York Central Railroad crossing, it would back up as far as the Widmer lane, with resulting honking of horns, which disturbed the plaintiffs. Plaintiffs were pestered by autoists stopping and inquiring as to the whereabouts of the Benore Club. Occasionally, persons parked in the grounds, drinking and “necking.” The grounds were littered with racing forms, beer cans and whiskey bottles. Plaintiffs testified that on returning home they would find their driveway blocked by these intruders. The Widmers were also annoyed by telephone calls inquiring for Joe Fretti.

Evidence that a substantial gambling resort was conducted at the Benore Club from June 1946 to July 1949 is uncontroverted. Whatever may have been the rule at common law with respect to gaming as a nuisance, statutory enactments denouncing gaming and the keeping of gambling houses make the keeping of such establishments a public nuisance. By the recent enactment of Section 13054-1, General Code, it is declared an absolute public nuisance per se. The mere fact that the General Assembly had not theretofore in haeo verba declared that the operation of a gambling house constituted a public nuisance did not prevent it from being such. Gambling was declared unlawful and it's conduct in violation of public rights was made an unlawful public nuisance.

The operation of a gambling house also constitutes an absolute nuisance, and, as such, imposes upon the operator strict or absolute liability for resulting harm without regard to the care exercised to prevent harm. Metzger v. Pennsylvania, Ohio & Detroit Rd. Co., 146 Ohio St., 406, 66 N. E. (2d), 203; Interstate Sash & Door Co. v. City of Cleveland, 148 Ohio St., 325, 74 N. E. (2d), 239. As a public nuisance, the operation of a gambling house may be abated in an action brought for such purpose by public authority. To establish public authority’s right to enjoin a nuisance per se, it is necessary to prove only commission of the act which constitutes a nuisance as a matter of law, and it is not necessary to prove that the maintenance of the nuisance interferes with the comfortable enjoyment of life and property by the public, since such is conclusively presumed from the commission of the act itself. Engle v. Scott, City Mgr. (1941), 57 Ariz., 383, 114 P. (2d), 236.

Although as a general rule a criminal act will not be enjoined, nevertheless an injunction will issue to inhibit a criminal act where such act invades civil or property rights and where there is no other adequate remedy available. 43 Corpus Juris Secundum, 762. The mere fact that the commission of a crime must be enjoined as an incident to the protection of civil or property rights does not deprive the court of jurisdiction. The criminality of the act neither gives nor ousts the jurisdiction. People v. Seccombe, 103 Cal. App., 306, 284 P., 725; Cranford v. Tyrell (1891), 128 N. Y., 391, 28 N. E., 518; State v. Ehrlich, 65 W. Va., 700, 64 S. E., 935, 23 L. R. A. (N. S.), 691; Renner Brewing Co. v. Rolland, 96 Ohio St., 432, 118 N. E., 118; City of Cleveland v. Division 268 of Amalgamated Assn. of Street Ry. & Motor Coach Employees, 85 Ohio App., 153, 85 N. E. (2d), 811.

However, private persons may not resort to equity to prevent criminal acts unless they are threatened with irreparable injury to their property, separate and distinct from that suffered by the public generally, and the relief must be such as only equity can give (43 Corpus Juris Secundum, 760, 766; 66 Corpus Juris Secundum, 833; 30 Ohio Jurisprudence, 400, Section 130; 4 Sutherland on Damages [4 Ed.], Section 1058), because a citizen whose civil or property rights are not specially injured may not usurp the duty imposed by law upon the duly constituted law-enforcement officers. Cf. Hill v. Pierson, 45 Neb., 503, 63 N. W., 835; People, ex rel. L’Abbe, v. District Court of Lake County, 26 Colo., 386, 58 P., 604, 46 L. R. A., 850. Nor does apathy or dereliction of duty upon the part of public officials accord a citizen the right to enjoin the criminal conduct. Therefore, in order to prevail in the instant case, plaintiffs must establish that they have suffered irreparable injury to their civil or property rights distinct from that suffered by the public at large.

A plaintiff seeking to enjoin an unlawful nuisance must show that he has suffered or is threatened with irreparable injury distinct from that suffered by the public, but his right to relief is not necessarily to be determined under the same principles as are applied to the abatement of a nuisance per accidens, such as, for example, was present in Goodall v. Crafton, 33 Ohio St., 271, 31 Am. Rep., 535; Eller v. Koehler, 68 Ohio St., 51, 67 N. E., 89; Powell v. Craig, 113 Ohio St., 245, 148 N. E., 607; Stothfaugh v. Cincinnati Aluminum Castings Co., 13 Ohio App., 334; Antonik v. Chamberlain, 81 Ohio App., 465, 78 N. E. (2d), 752; Haywood v. Federated Lutheran Benevolent Society, 29 O. L. R., 423; Hazen v. Perkins, 92 Vt., 414, 105 A., 249, 23 A. L. R., 748; World Realty Co. v. City of Omaha, 113 Neb., 396, 203 N. W., 574, 40 A. L. R., 1313; Klaber, Admr., v. Lakeman, 64 F. (2d), 86, 90 A. L. R., 783; Board of Commrs. of Green County v. Usrey (1943), 221 Ind., 197, 46 N. E. (2d), 823; Bell v. Pollack Steel Co., 28 O. D., 50, 19 N. P. (N. S.), 531. In the case of a nuisance per accidens, a clear case of nuisance and irreparable injury must be established and conflicting equities must be weighed, but in the case of a nuisance per se, the liability is absolute and injury to the public is presumed. If the evidence tends to show irreparable injury to the plaintiff, separate and distinct from that suffered by the public, by reason of the unlawful conduct, the injunction should issue.

In the instant case, the evidence fails to disclose that the value of the property of the plaintiffs has been impaired by the operation of the nuisance. Plaintiffs testified that before the opening of the Benore Club the rental value of their house was $300 per month, which was reduced to nothing during the period when the club was operating. Where the owners do not occupy the premises alleged to have been damaged, their measure of damages is diminution of rents and cost of repairs to the property incident to the injury. Such nonoccupying owners would have no claim for injury to peace and enjoyment. However, in the instant case, plaintiffs occupied their property. It was not rental property and the testimony that it could have been rented for $300 per month is speculative and does not tend to prove injury to the property itself. Loss of rentals may not be considered as an element of damage where no rental contract is terminated. City of Youngstown v. Horn, 14 Ohio Law Abs., 249; 25 Corpus Juris Secundum, 545, Section 55.

Does the evidence tend to show that the peace, comfort and enjoyment of plaintiffs were impaired to such an extent as to indicate irreparable injury different from that suffered by the public at large? The personal inconvenience, annoyance or discomfort to the occupant of real estate caused by the maintenance of a nuisance in the immediate vicinity is a separate and distinct element of damage from that of the depreciation of the real estate itself. Phillips Petroleum Co. v. Ruble, 191 Okla., 37, 126 P. (2d), 526, 142 A. L. R., 1303, and annotations; Ohio Stock Food Co. v. Gintling, 22 Ohio App., 82, 153 N. E., 341; Frey v. Queen City Paper Co., 79 Ohio App., 64, 66 N. E. (2d), 252.

The casino was located eight-tenths of a mile from plaintiffs’ home. By its very nature, its operation was secretive and the club could not be observed from plaintiffs’ home. The evidence is conclusive that vehicular traffic substantially increased during the operation of the gambling club, which traffic increase, plaintiffs say was annoying. However, when a right of way has been dedicated or is taken for a highway, an abutting owner must accept whatever increased volume of traffic results thereon. Although the purpose of a public highway is for the passage of the public, it may be conceded that land forming such highway was not taken for the purpose of enabling the public to pass over it only in the then known vehicles or for using it in the then known methods for the conveyance of property. Eels v. American Telephone & Telegraph Co., 143 N. Y., 133, 38 N. E., 202, 25 L. R. A., 640, cited in Ohio Bell Telephone Co. v. Watson, 112 Ohio St., 385, 393, 147 N. E., 907. Thousands of householders are seriously annoyed by the juggernauts of modern transportation, but have no right at law or in equity to abate the traffic or obtain damage resulting from such increased use of the highway. The annoyance resulting from trespassers engaged in drinking and “necking” is one of the vicissitudes of country life, and the evidence with respect thereto is purely speculative so far as having any connection with the gambling operation. Furthermore, it was within the province and power of the plaintiffs to exclude those trespassers from their property and prevent such intrusion. Koontz v. Keller, Admx., 52 Ohio App., 265, 3 N. E. (2d), 694. With regard to persons inquiring as to the location of the Benore Club and the telephone calls for Joe Fretti, damages asserted are also too remote and speculative. The injury is more fanciful than substantial and there is no standard by which it can be even approximately compensated. Bartow v. Smith, 149 Ohio St., 301, 78 N. E. (2d), 735. Cases supporting-recovery for personal discomfort or annoyance involve either excessive noise, dust, smoke, soot, noxious gases, or disagreeable odors as a premise for awarding compensation. Cf. 142 A. L. R., 1307. Cases relating to amusement and baseball parks refer to the attraction of large and boisterous crowds as a basis for recovery, but the premise upon which an injunction issues or damages are awarded is the noise emanating from the occurrence rather than the congestion of the street or highway. Cf. 33 A. L. R., 719, 725; 4 Restatement of the Law of Torts, 263, Section 831, Illustration 2. It should be noted that the foregoing cases relate to nuisance per accidens.

Irreparable injury from a nuisance which a court of equity will enjoin includes that degree of wrongs of a repeated and continuing kind which produce hurt, inconvenience or damage that can be estimated only by conjecture, and not by any accurate standard of measurement. Irreparable injury does not necessarily mean that the injury is beyond the possibility of compensation in damages, or that it must be very great; and the fact that no actual damage can be proved, so that in an action at law the jury could award nominal 'damages only, often furnishes the very reason why a court of equity should interfere in a case where the nuisance is a continuing one. 39 American Jurisprudence, 426, Section 156; 66 Corpus Juris Secundum, 767; Field v. Barling (1894), 149 Ill., 556, 37 N. E., 850. Cf. Olp v. Hocking Valley Ry. Co., 31 O. D., 453, 22 N. P. (N. S.), 433. The Ohio authorities are in accord with the proposition that an injunction may issue in a case where the nature of the damages is not susceptible of proper assessment by the trier of the facts. Stines v. Dorman, 25 Ohio St., 580, 584; Brown v. Huber, 80 Ohio St., 183, 207, 88 N. E., 322, 28 L. R. A. (N. S.), 705; Dales v. Albrecht, 11 Ohio App., 368, 371; Arthur v. Bender, 90 Ohio App., 187. An adequate remedy is one which affords relief with reference to the controversy, and which is appropriate to the particular circumstances of the case. City of Mt. Vernon v. Berman & Reed, 100 Ohio St., 1, 15, 125 N. E., 116.

Although some significance may be attached to the fact that, notwithstanding plaintiffs complained about the operation of the Club Devon, no similar action was taken by them to enjoin its operation directly opposite plaintiffs’ property for a period of several years, nevertheless plaintiffs have testified that they were constantly annoyed as a result of the proximity of the resort to their home. This evidence is uncontradicated except by the testimony of several residents of the neighborhood that they themselves were not disturbed.

In Powell v. Craig, supra, the Supreme Court denied relief to a property owner seeking to enjoin the construction of a filling station (a nuisance per accidens) on the principle that whatever injury may have been suffered by such owner did not differ in degree or kind from injury resulting to others residing within the immediate vicinity. This principle is somewhat inaccurately stated, since the principle upon which relief is denied is that the plaintiff must show that whatever injury he suffered is different in degree and kind from that suffered by the public at large, as illustrated in Barkau v. Knecht, 9 Dec. Rep., 66, 10 W. L. B., 342. The mere fact that others in the community may be specially damaged and have not elected to seek to abate an unlawful nuisance does not defeat the right of one who is similarly specially injured to obtain relief. Story v. Hammond, 4 Ohio, 376.

Plaintiffs are not seeking relief from annoyances and discomfort affecting the quiet enjoyment of their home as a result of the encroachment of lawful business and industry. The fact that the character of the neighborhood has changed over the years does not provide a shield behind which defendants may conduct an unlawful enterprise to the injury of the plaintiffs. The evidence tends to show that plaintiffs are persons of normal sensibilities, and specific instances were disclosed showing that as a result of the nuisance complained of, the use and enjoyment of their property was substantially lessened and the comfort of their home was invaded. That the damages sustained thereby are not susceptible of being ascertained and computed in money, does not defeat plaintiffs’ right to relief. The operation of the gambling resort was an absolute public nuisance per se. Liability for its conduct is absolute and damage to the public, including the plaintiffs as members thereof, is presumed.

Although the plaintiffs have been unable to show that they have sustained compensable damage as a result of the operation of the resort, it is concluded that, by reason of the proximity of their home to the resort, they have suffered injury different in degree and kind from that resulting to the public at large and that they are entitled to have the operation of the nuisanee enjoined. The evidence discloses further a reasonable probability that, if not enjoined, the unlawful operation may be resumed and, therefore, the question of the right of plaintiffs to relief has not become moot by reason of the discontinuance of the operation.

At the conclusion of plaintiffs ’ case, it was conceded that the evidence failed to disclose that defendants Harry Devine, Joseph Marzie, Edward Warnke and A1 Schaib were connected with the Benore Club and they were therefore dismissed as parties defendant. The court finds further that the evidence has failed to show that defendants Mike Rodney, Bill Paul, Tony Paul, Nick Paul, Pittsburgh Lefty, Joe Muscles, Ben Fretti, Ben Aranoff, Joe Reno and Chalky Red, acted in a proprietary capacity at the resort, and as to them the petition is dismissed. The court finds further that the defendant Joe Fretti was one of the proprietors of the resort and that the defendant Chait was the owner of the premises and that such defendants should be enjoined from using, keeping or operating any gambling resort or establishment upon the premises described in the petition, and that the costs of this action in this court and in the Common Pleas Court should be assessed against such defendants.

Upon the claim of the plaintiffs for damages incidental to the granting of equitable relief, the court finds for the defendants.

After the filing of the petition, on June 29, 1949, the Common Pleas Court issued a temporary restraining order as prayed for in the petition. On final hearing, June 11, 1951, the petition was dismissed, the injunction bond released, and the temporary injunction was vacated and dissolved. Notice of appeal on questions of law and fact and an appeal bond were filed on July 16, 1951. On December 8, 1951, plaintiffs filed in this court a motion for an order to show cause why the defendants should not be punished for contempt in disobeying tbe order entered by tbe Common Pleas Conrt on June 29,1949.

An appeal on questions of law and fact entitles a party to a hearing and determination of the facts de novo upon tbe same or amended pleadings (Section 12223-21, General Code), and tbe perfection of an appeal on'questions of law and fact removes tbe case in its entirety from the Common Pleas Court to tbe Court of Appeals for a trial de novo. But where a judgment granting an injunction is appealed from, it may be suspended only by order of tbe Court of Appeals or two judges thereof. Section 12223-18, General Code. When tbe injunction has been allowed and, during tbe pendency of tbe action in tbe Common Pleas Court, has been vacated either by a judge thereof in vacation, or by tbe court previous to the trial of tbe action, and where, after such trial an appeal is taken from tbe judgment or final order of tbe Common Pleas Court to the Court of Appeals, an injunction may be granted before judgment or final order in tbe action by tbe Court of Appeals in which it is pending, or a judge thereof. An injunction may also be allowed by tbe Supreme Court or Court of Appeals as a temporary remedy during tbe pendency of a case on appeal in such courts. Section 11879, General Code. Although probably inherent in tbe jurisdiction of tbe Court of Appeals, ample statutory authority is conferred upon tbe court to grant or dissolve temporary injunctions. Neither tbe granting nor dissolving of a temporary injunction constitutes a final order which may be reviewed by an appellate court. Tbe perfection of the appeal herein did not reinstate tbe temporary restraining order which was vacated incident to tbe final judgment of tbe Common Pleas Court. We do not determine, of course, whether tbe defendants are guilty of contempt of tbe Common Pleas Court for violation of the temporary order during tbe period it was in force.

Inasmuch, as no temporary injunction was sought or issued by this court, the motion for an order to show cause is overruled. See Currie v. Baltimore & Ohio Rd. Co., 54 Ohio App., 505, 8 N. E. (2d), 453.

Our finding and judgment is for plaintiffs and against defendants Joe Fretti and Hyman Ohait on the issue of granting an injunction, and a permanent injunction is granted. Our judgment is for the defendants on the claim for incidental damages. Costs are assessed against defendants Joe Fretti and Hyman Chait, and the petition is dismissed as to the other defendants. The cause is remanded to the Common Pleas Court for execution for costs.

Judgment accordingly.

Conn and Savord, JJ., concur.


author: Hurd, P. J.

text:
    The State of Ohio, Appellee, v. Davis, Apellant.
    (No. 22664
    Decided March 9, 1953.)

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Dennis McGuire, for appellee.

      Mr. Dan W. Duffy, Mr. Bernard Friedman and Mr. A. L. Kearns, for appellant.
   Hurd, P. J.

The defendant, Thomas J. Davis, appealed from a judgment of the Juvenile Court rendered on a verdict finding him guilty of contributing to the delinquency of a minor, in violation of Section 1639-45, G-eneral Code.

The affidavit, in substance, charges that the defendant, an adult person, on May 26, 1952, and on numerous occasions prior thereto, did aid, abet, induce, cause, encourage and contribute toward the delinquency of Richard Sipos, a minor, 17 years of age, by causing him to have in his possession, custody and control, unlawfully, certain clearinghouse slips, and did receive from Richard Sipos certain clearinghouse slips used and intended to be used in a lottery, “policy” or scheme of chance, sometimes called clearinghouse, contrary to law.

The record shows that defendant and one John Sipos, of Lorain, Ohio, the father of the minor, were both engaged in policy or clearinghouse operations. In carrying on these unlawful operations they first used Raymond Sipos, the adult son of John Sipos, as a messenger to carry clearinghouse slips from Sipos at Lorain to Davis in Cleveland. On March 4, 1952, Raymond, the adult son, discontinued the delivery of the slips and for three or four days thereafter Sipos, the father, delivered them, after which he commenced to use his 17-year-old son, Richard, in making daily deliveries thereof to Cleveland by use of the father’s automobile. The operation was carried on with great secrecy. Sipos first took his son Richard to a garage building at 1200 East 105 street in Cleveland, which was under lease to defendant, and showed him how and where to deliver the clearinghouse slips.

On May 26, 1952, the minor was apprehended by Cleveland police officers about a block away from the place of delivery. They searched the automobile and found therein a bag containing clearinghouse slips indicating $586.86 worth of business. The minor was taken into custody and on June 20, 1952, was adjudicated a delinquent in the Juvenile Court of Cuyahoga County. The father, John Sipos, was thereafter convicted in Lorain county of contributing to the delinquency of his minor son, and was sentenced to the house of correction in Lucas county, Ohio.

The theory of the state in this prosecution is that a conspiracy existed between defendant, Davis, and Sipos, Sr., to engage in clearinghouse operations in violation of law; that in the furtherance of the common design and purpose of the conspirators, the minor was used as a messenger and runner; and that proof of the existence of the conspiracy was merely incidental to proof of the crime charged.

Defendant assigns error as follows:

1. That there is no evidence of conspiracy between defendant and Sipos.

2. Error in the charge on the law of conspiracy.

3. Error in the admission of evidence.

4. Defendant did not have knowledge that Richard Sipos was a minor.

5. Misconduct on the part of the prosectuting attorney.

6. The defendant did not have a fair trial.

In our opinion, there is ample evidence in the record showing that a conspiracy existed between defendant and John Sipos to engage in the business of “policy” or clearinghouse. This being true, the court did not err in charging on this subject, nor do we find error in the charge. We find also that there was evidence in the record, properly admitted, showing that defendant knew Rickard Sipos was used to further the conspiracy between the parties by delivering the clearinghouse slips.

It is fundamental that once a conspiracy has been established, the acts of one of the conspirators toward the accomplishment of the unlawful purpose are the acts of all and are, therefore, imputable to all. Claw-son v. State, 14 Ohio St., 234; Goins v. State, 46 Ohio St., 457, 21 N. E., 476; Seville v. State, 49 Ohio St., 117, 30 N. E., 621, 15 L. R. A., 516; State v. Doty, 94 Ohio St., 258, 113 N. E., 811; Patterson v. State, 96 Ohio St., 90, 117 N. E., 169, L. R. A., 1918A, 583; Curtis v. State, 113 Ohio St., 187, 148 N. E., 834; Richards v. State, 43 Ohio App., 212, 183 N. E., 36.

Whether Davis knew that Richard Sipos was a minor is immaterial, because, upon the evidence disclosed by the record, he is charged with such knowledge.

In certain types of cases, ignorance of fact, like ignorance of law, is no excuse. Such is the instant case. The statute defining the crime of contributing to the delinquency of a minor does not permit ignorance of minority as a defense. In such cases one deals with a minor at his peril. The numbers, or policy racket is a hazardous business at best. One who engages in it, in conspiracy with another, under the circumstances here shown where a runner is used, is bound to have in contemplation the fact that the runner may be a minor. Ignorance of the fact will be of no avail as a defense. State v. Kelly, 54 Ohio St., 166, 43 N. E., 163; Zent v. State, 3 Ohio App., 473; White v. State, 44 Ohio App., 331, 185 N. E., 64; State v. Hannawalt (Ohio App.), 26 Ohio Law Abs., 641; State v. Kominis, 73 Ohio App., 204, 55 N. E. (2d), 344.

Defendant’s complaint that there was misconduct on the part of the prosecutor is based on the charge that the court permitted him to cross-examine John Sipos, a state’s witness, with respect to a statement made previously by Mm to the police, which statement is inconsistent with Ms testimony. Although we think the claim of the prosecutor that he was taken by surprise could have been more definitely stated, and the request for permission to cross-examine more clearly expressed, yet there was no misconduct.

The witness having been convicted of contributing to the delinquency of his own minor son and having been charged with being a conspirator, was not friendly to the state, and his obvious reluctance to testify is indicated by his admission of contradictory statements. In view of the circumstances of the case and the antagonistic attitude of the witness, the state was entitled to adduce this testimony. See Hurley v. State, 46 Ohio St., 320, 21 N. E., 645, 4 L. R. A., 161.

Defendant also claims error because the statement of the witness made in the presence of the police, typed by them bnt unsigned by the witness, was not introduced in evidence. The record shows that defense counsel objected to the introduction of the statement and that the objection was sustained by the court. Defendant may not now complain of this. There was no prejudicial error in this respect.

Upon a review of the entire case, we conclude that under the provisions of Section 13449-5, General Code, this court may not reverse and remand for a new trial because it does not affirmatively appear in the record that the accused was prejudiced by any action of which complaint is made, and because it appears upon the face of the record that substantial justice has been done.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

Kovachy and Skeel, JJ., concur.