author: Hildebrant, J.

text:
    Trimble, Admr., Appellee, v. The Western & Southern Life Ins. Co., Appellant.
    (No. 937
    Decided July 12, 1948.)

      Mr. J. T. Lamb, for appellee.

      Mr. John D. Andrews, for appellant.
   Hildebrant, J.

This is a suit to recover the accidental death benefits provided for in two policies of insurance.

The cause was submitted to the court, without a jury,, on the admissions contained in the answer and the following agreed statement of facts :

“Melvin Trimble, plaintiff’s deceased, was enlisted or enrolled as a member of the navy of the United States of America on or about May 1, 1945, and had not been discharged therefrom at the time of his death. After his enlistment, he received so-called boot training at the Great Lakes Naval Training Station in. II-. linois; on the 25th day of August, 1945, he duly received a furlough from the United States Navy, which furlough had not expired at the time of his death. On August 28, 1945, while driving his father’s private automobile on a public highway known as Verity Parkway between the city of Middletown and the home of his parents and himself at Excello, Ohio, and while returning from a trip made from his parents home ■earlier in the day for purely social reasons, personal to himself and unconnected with any interest of the United States Navy, the vehicle which he was driving was accidently overturned and caused to fall on the body of the said Melvin Trimble, thereby causing him personal injuries, which injuries caused his death about 2:00 a. m. on September 1, 1945.

“At the time of his death, the said Melvin Trimble was 18 years of age.

“Both policies of insurance mentioned in the petition were issued by the defendant upon the life of the ■said Melvin Trimble at the date stated in the petition and both said policies were in full force and effect at the time of his injury and death as hereinabove set forth.

“After the death of the said Melvin Trimble and before the institution of this action, defendant received ■due proof that the said Melvin Trimble had died as hereinabove set forth and refused to pay the accidental death benefits provided in said policies, or any part thereof, and at no time offered to return the premiums paid on said policies or any of them or any part thereof.”

The defense is based on the military exemption clauses contained in each policy, which read:

‘ ‘ Provided further that, in any event, this accidental death provision shall not apply * * * are sustained while the insured is in the military or naval service in time of war * # #.

“Provided further that, in-any event, this accidental ■death provision shall not apply * * * are sustained while the insured is in the military or naval service of any country at war *• *

The trial court took judicial notice that active hostilities or the so-called shooting war with Japan ended on August 14, 1945, with the presidential announcement of the surrender of Japan and the subsequent holidays proclaimed for August 15 and 16, 1945, and the announcements in press and over radio to the effect that the war was over, and found the issues joined' for the plaintiff, although likewise noticing that the-formal surrender ceremony on the battleship Missouri did not take place until September 2, 1945, one day-after the death of the insured.

In construing these exemption clauses as no defense-to liability, the court followed a line of cases arising for the most part after the first world war, where the phraseology of the so-called war clauses varied and included such language as “in consequence of,” “.resulting from,” “engaged,” “risk,” “active service,” etc., and the courts found such language to be ambiguous and proceeded to apply the familiar rule of construction against the insurer, which resulted in the upholding of the right to the benefits.

The problem presented by such cases is well stated” in 137 A. L. R., 1268, 1270, 1271, as follows:

The primary question in connection with the nature- and character of the risks contemplated by the parties to a policy of life or accident insurance containing a provision relating to military service on the part of the insured is whether the parties intended that the provision should be applicable to relieve the insurer from liability, or lessen its liability, merely on the basis of the status of the insured as a member of the nation’s armed forces, or, instead, contemplated that, before the provision should be applicable, it must appear that death occurred as a result of the insured’s military activities, and was attributable, directly or indirectly, to his participation in military service.

“It is, of course, obvious that the wording of the ■particular contract to be construed is of primary importance in this connection. The policy may, for example, be so worded that there can be no doubt that the parties intended that the insured’s mere status as .a member of a military organization would be insufficient to make the provision operative and that causation between the participation of the insured in military service and his subsequent death must be established. * * *

“A policy may, on the other hand, be so worded that it is clear that the parties intended that the mere ■status of the insured as a member of the armed forces should be sufficient to make the provision relating to military service operative, and that the insured’s -death while such a member should be enough to relieve the insurer, irrespective of whether or not it was attributable to his military activities. ’ ’

On reason and the great weight of authority these war clauses are held not to be against public policy, and from the language under consideration here it is •clear to the court that the parties intended the mere status of the insured as a member of the armed forces to be sufficient to make the war clauses operative. This -court likewise takes judicial notice of a state of war -existing between this country and Japan which actually was not terminated by the ceremonies aboard the battleship Missouri on September 2, 1945, but was followed with active hostilities in a different theater -of action thereafter.

There is no ambiguity in the clauses here under construction and the court is bound to give effect to the •clear intent of the parties and apply the general and first rule of construction expressed in 22 Ohio Jurisprudence, 330, 331, Section 174, as follows:

“Accordingly, an insurance company is liable according to the terms and provisions of its contract and not otherwise; and where the language used is clear,, plain, and certain, no other meaning can be added by-implication or intendment. This means that the terms-of an unambiguous insurance policy cannot be enlarged or diminished by judicial construction; in other-words, that the court cannot make a new contract for-the parties where they themselves have employed express and unambiguous words. So it has been said’ that the courts cannot rewrite contracts of insurance for either party no matter how illiberal may be their terms, provided there be no fraud and an absence of legislation nullifying their provisions; rather, they are compelled to interpret them as written, subject only to the rule that provisions may be strictly construed against the company by which they were written, and in favor of the insured; also that courts are not privileged to make contracts for others, or to-change conditions of contracts lawfully made, because of some personal notion of what good morals and fair, dealing may require in a particular case.”

Again, at page 339, Section 183, ibid., in reference-to construction and in inveighing against forfeiture,, it is said:

“On the other hand, if conditions invalidating policies are unambiguous and are such as affect the rislc of the insurer without violating the law, they should be-enforced.”

And, at page 339, Section 184, ibid., it is said:

“If the language in which an exception or limitation is couched in plain words and is not inconsistent with-other clauses or provisions, the rule which calls for a strict construction against the insurer is qualified by the rule that effect must be given to such exceptions or-limitations as are of plain meaning and not inconsistent with other provisions of the contract. In other words, where an exception clause is plain, specific, and unambiguous, there is no room for construction and the language used must be given effect without contradiction. ’ ’

We cite with approval Bending v. Metropolitan Life Ins. Co., 74 Ohio App., 182, 58 N. E. (2d), 71; Eggena v. New York Life Ins. Co., 236 Iowa, 262, 18 N. W. (2d), 530; State Mutual Ins. Co. v. Harmon, 72 Ga. App., 117, 33 S. E. (2d), 105; Life & Casualty Ins. Co. v. McLeod, 70 Ga. App., 181, 27 S. E. (2d), 871; Lindsey v. Life & Casualty Ins. Co., 70 Ga. App., 190, 27 S. E. (2d), 877 (with facts almost identical with the instant case); 137 A. L. R., 1263 et seq.; Reid v. American Nat. Assurance Co., 204 Mo. App., 643, 218 S. W., 957.

Accordingly, the judgment is reversed, and final judgment may be entered in this court for the defend-ant.

Judgment reversed.

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


source: Caselaw Access Project

author: Guernsey, J.

license: Public Domain

text:
    The State, ex rel. Sparling, v. Bronson, Mayor.
    (No. 137
    Decided October 21, 1947.)

      Mr. Otto W. Hess and Mr. David Meehison, for relator.

      Mr. Victor L. Mansfield, for respondent.
   Guernsey, J.

This is an action in mandamus instituted in this court by the state of Ohio on relation of George H. Sparling, for an order commanding Ed. S. Bronson, as mayor of the city of Defiance, to correct the entries in the criminal docket kept by him as such mayor, in the case entitled “The State of Ohio, plaintiff, v. George H. Sparling, defendant,” in which case the relator, George H. Sparling, by affidavit filed in the cause on June 25, 1947, was charged with indecent exposure in the presence of the opposite sex, in violation of the provisions of Section 13032-1, General Code, by expunging from the docket the entries therein to the effect that the relator had pleaded guilty to the charge, and for such other relief as may be proper.

As the basis for the relief asked for by him, the relator alleges in his petition that upon being arrested upon the charge contained in the affidavit, he was brought before the mayor of the city of Defiance, and the mayor, notwithstanding the fact that he, Sparling, did not plead guilty to the charge, made entries on his docket in the cause to the effect that he, Sparling, pleaded guilty to the charge, and he, the mayor, therefore, fined him the sum of $50 and the costs of prosecution.

The relator, in his petition, alleges further that he has taken an appeal from the judgment and proceeding, as shown on the docket of the mayor’s court.

Before this action in mandamus was submitted to this court on its merits, the respondent moved the court to dismiss the petition herein for the following stated reasons, to wit:

a. That the performance of the act by the respondent mayor sought to be enforced in this action is not one which the law specifically enjoins as a duty resulting from the office, trust or station of the respondent as mayor.

b. That the relator has a plain and adequate remedy in the ordinary course of law by way of appeal from the judgment in the mayor’s court of which he has heretofore availed himself, precluding the issuance of a writ of mandamus as prayed for.

c. That the entry complained of, if a plea of guilty was not made by the relator as set forth in entry, is an error of judgment in the cause and mandamus is not a proper remedy to correct such an error.

The court reserved its decision on that motion, and, subject to the decision it should thereafter render on the motion and without prejudice to the right of the movant to have the court rule on the motion, heard the case upon the merits.

The motion, accordingly, will be first considered,

a. Section 12283, General Code, defines mandamus as follows:

“Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

The following pertinent comment is made on that statutory definition, under the subject of mandamus, in 25 Ohio Jurisprudence, 974, Section 2, to wit:

“This definition does not require the act to be one enjoined by statute, but one enjoined by law. Attention to Blackstone’s definition, from which the statutory definition was taken, and to the cases, shows that the act which the writ directs to be performed is one that the courts determine it is the duty of the respondent to do, because it appertains to his office, trust, or station; and it is especially enjoined by law, within the meaning of the definition, where it is so determined. ’ ’

Under the provisions of Sections 4528, 4532, 4534, 4548, 4550, 1740, 13422-1, 13432-9, 13433-9, 13433-10, .and 13433-18, General Code, it is clear that the mayor had and has jurisdiction of the case of the state against the relator in his court, and was and is required to keep a docket showing the proceedings had in the cause before him.

A judgment on the docket of the mayor’s court, until reversed or modified by a reviewing court, is entitled to full faith and credit to the same extent as the judgments of other courts of the state. Consequently the law requires that the docket entries made by the mayor must correctly reflect the proceedings had before him and the judgments rendered by him.

It is, therefore, clear that the making of correct docket entries in the case before the mayor was a duty appertaining to his office, trust or station and is specially enjoined by law and enforceable in mandamus.

b. The remedy by appeal, of which the relator availed himself, is not a plain and adequate remedy in the ordinary course of law, as the reviewing court, on appeal, would be required to give full' faith and credit to the entries on the mayor’s docket which show a plea of guilty by the relator, and a judgment of conviction on such plea, precluding the relator from asserting error in the judgment of the court.

c. The entry ’on the docket of the plea of guilty, where, as alleged, no such plea was made, did not constitute an error in judgment. An error in judgment is one arising from the improper exercise of judicial discretion on the hearing of a cause, on weighing the evidence or rendering a decision upon it. State, ex rel. Morgenthaler, v. Crites, 48 Ohio St., 460, at page 465, 28 N. E., 178.

The entry of the plea did not involve the exercise of any judicial discretion on the part of the mayor, as it was his positive ministerial. duty to enter the plea, whether guilty or not guilty, as made by the relator.

The subject matter of the plea as entered by the mayor constitutes a confession of guilt equivalent to a conviction, and a waiver of defenses other than that no offense is charged, and also a waiver of the right to trial and the incidents thereof, and all defects in the affidavit in the matter of form. 22 Corpus Juris Secundum, 655, Criminal Law, Section 424.

Consequently the entry, if uncorrected, would have the effect of depriving the relator of any right to have the judgment of the mayor reversed notwithstanding the judgment is wholly based on a plea of guilty which was not actually made.

The remedy of mandamus sought by the relator is the only remedy available to him for the wrong of which he complains.

For the reasons mentioned, the respondent’s motion to dismiss the case will be overruled, and we will proceed. to a consideration of the merits of this proceeding in mandamus.

The pertinent parts of Section 13032-1, General Code, upon which the charge against the relator, mentioned in the petition, is based, reads as follows:

“Whoever, being eighteen years of age or over, wilfully exposes his or her private parts in the presence of two or more persons of the opposite sex * * * shall be fined not more than two hundred dollars or imprisoned not more than six months, or both. * # *

“As used in this section, the term ‘private parts’ shall be construed to mean the external genitalia of the human body. ’ ’

The affidavit filed in the mayor’s court of the city of Defiance charges:

“That on or about the 24th day of June, A. D. 1947, at the county of Defiance, one George H. Sparling in the city of Defiance aforesaid being over the age of eighteen years did unlawfully and wilfully expose his private parts in the presence of persons of the opposite sex from himself.”

From an inspection of the above quoted provisions of Section 13032-1, General Code, it will be noted that in order to constitute an offense, the exposure must be wilful; and it will be further noted that the affidavit purports to charge wilful exposure. Consequently, unless the exposure in question was wilful, no offense was committed by the relator.

On the trial of this case in this court it appeared that late at night, the relator, who was alone in a hotel room occupied by him in the city of Defiance, took off all his clothes and stood naked in the hotel room; that the view to the hotel room from the street was partially obscured by the foliage of trees in front of the hotel room, but that on account of the shades to certain of the windows in the room not being lowered, persons on the street adjacent to the hotel in which the room was located, could and did observe the relator in his naked condition in the hotel room.

Relator, on the trial, testified that upon his arraignment before the respondent mayor, and after the mayor had read the affidavit charging him with the offense, the mayor requested him to enter his plea to the charge; and that in answer to the request he, Sparling, said that he was guilty of exposure of his person but that he had not wilfully or intentionally done so. This testimony on the part of the relator is fully corroborated by the testimony of a newspaper reporter, the chief of police, and a patrolman who were present at the arraignment of the relator in the mayor’s court. The mayor himself was the only person who testified to^ the contrary. The mayor testified positively that the relator plead guilty, but was apparently unable to state the exact words used by the relator in making his plea, and admitted that during the arraignment the relator stated that he had not wilfully or intentionally exposed his person.

From such evidence we find that the relator pleaded as testified by him.

A plea of guilty need not be in writing and its form is not of vital importance provided the admission of guilt is clear, definite and unconditional. 22 Corpus Juris Secundum, 653, Criminal Law, Section 423.

As the relator, in his plea, expressly denied that he had wilfully or intentionally exposed his person, and wilfulness is an essential element of the offense charged in the affidavit, the plea, instead of constituting a plea of guilty,' constituted a plea of not guilty.

Relator is, therefore, entitled to have a writ of mandamus issued herein commanding the respondent mayor to correct entries on his docket in the cause to show that he entered a plea of “not guilty” instead of “guilty” to the charge in the cause, and to have ail subsequent entries on the docket, other than the entry reflecting waiver by him of right to trial by jury,, expunged therefrom, and a writ of mandamus will b'e issued accordingly. The case in the mayor’s court then stands for trial on the plea of not guilty entered by the respondent.

Writ allowed.

Jackson, P. J., and Middleton, J., concur.


author: Wiseman, P. J. By the Court.

text:
    Suburban Home Mortgage Co., Appellee, v. Hopwood et al., Appellants.

      (No. 4092
    Decided February 3, 1948.)

      Mr. Allen 1. Pretmian, for appellee.

      Messrs. Williams, Williams <& Reynolds, Mr. O. C. Ingalls and Mr. W. A. Walter, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin county, ordering one of the defendants, The Hopwood Realty, Inc., an appellant herein, to convey to the plaintiff certain property located in the city of Bexley.

The action is one in equity to compel the reconveyance to the plaintiff of certain real estate conveyed by it to Minerva D. Hopwood in 1938 and subsequently conveyed by her to the defendant, The Hopwood Realty, Inc.

The petition alleges that the conveyance of the property by the plaintiff to Minerva D. Hopwood, defendant, was made to secure the payment of a commission to her husband, Harry L. Hopwood, defendant, for selling certain real estate belonging to the Henry Holtzman & Sons Company, defendant, and was made to Minerva D. Hopwood at his request; that prior to July 12,1938, Harry L. Hopwood was the attorney for Suburban Home Mortgage Company, the appellee herein, and the Henry Holtzman & Sons Company; that Hopwood proposed to sell certain real estate belonging to the Henry Holtzman & Sons Company, stating that in the event he sold the property he could not collect compensation in the way of a commission since-he was not a licensed real estate broker, and in order that he might have security for the payment of his commission, in the event he effected a sale, he requested the-Suburban Home Mortgage Company to convey to him, or his nominee, a number of lots owned by that company; that it was agreed between Minard Holtzman,. who was the president of both the Henry Holtzman &. Sons Company and the Suburban Home Mortgage-Company, and Hopwood that in the event no sale-was effected, all of such lots would be reconveyed to-the Suburban Home Mortgage Company; that at the-request of Hopwood these lots were conveyed by the-company to Minerva D. Hopwood; and that Hopwood: did not find a purchaser for the property of Henry Holtzman & Sons Company and has refused to reconvey the property to the Suburban Home Mortgage-Company as agreed. The plaintiff alleges further that, with the exception of lot No. 10, all the lots were-conveyed by Minerva D. Hopwood to the Hopwood' Realty, Inc., on July 17, 1940, without consideration.

The defendants Minerva D. Hopwood and Harry L.. Hopwood filed a joint answer in which they allege that the conveyance of the lots to Minerva D. Hopwood’ by the plaintiff was in partial payment of fees owed by the plaintiff to Harry L. Hopwood, for money paid’ out by him at plaintiff’s request, and the assumption- and payment of taxes and assessments on the lots. In-their second and third defenses they set up the statute-of frauds and statute of limitations, and in their fourth defense they set up a plea of res judicata.

The Hopwood Realty, Inc., filed an answer in which .it admitted that certain lots were conveyed to it by Minerva D. Hopwood and that it is the owner and holder of the real estate and for want of knowledge denied every allegation in the petition not admitted to be true.

The record shows that lot No. 10 was sold by Minerva D. Hopwood, which gave rise to a suit brought by the Suburban Home Mortgage Company against the Hop-woods, being case No. 167208 in the Common Pleas Court of Franklin county in which the Suburban Home Mortgage Company sought to recover the purchase price thereof. The court in that action found for the plaintiff. On appeal this court sustained the judgment of the Common Pleas Court. A motion to certify was overruled by the Supreme Court. The judgment in that case is set up by the Hopwoods in this case as res judicata, contending that there was one cause of action existing between the parties which could not be split and that the matters arising out of the transaction alleged in the petition have been completely adjudicated.

The trial court in the instant case found: First, that the defendants’ demurrer to the petition upon the ground that it did not state a cause of action and that the judgment in case No. 167208 was res judicata of the issues in this case should be overruled; second, that defendants’ motion for judgment on the pleadings should be overruled; third, that the first defense of the defendants Minerva H. Hopwood and Harry L. Hop-wood to the effect that the lots were conveyed in partial payment for services theretofore rendered by Harry L. Hopwood to the plaintiff is not supported by the evidence; fourth, that the second defense is not supported by the evidence and this action is not barred by the statute of limitations. The trial court found further that an express oral trust was engrafted on the deed dated July 12, 1938, when the lots were conveyed to Minerva D. Hopwood, and that the transfer of the lots by Minerva D. Hopwood to the Hopwood Realty, Inc., was without consideration, and unlawful.

The trial court ordered, adjudged and decreed that the defendant, the Hopwood Realty, Inc., convey to-the plaintiff, the Suburban Home Mortgage Company,, all the real estate involved in this action.

The defendants, Minerva D. Hopwood, Harry L. Hopwood and the Hopwood Realty, Inc., appellants-herein, have assigned 11 separate grounds of error, to-wit, that the trial court erred (1) in overruling the-demurrer to the petition; (2) .in overruling the motion for judgment on the pleadings; (3) in holding that Minerva D. Hopwood took the real estate as trustee-under an oral agreement; (4) in finding that the parol trust had been established by clear and convincing evidence; (5) in finding that the judgment of the Common-Pleas Court of Franklin county in case No. 167208 is not res judicata and a bar to the prosecution of this-case; (6) in finding that the cause of action upon which the judgment in case No. 167208 was based is not the same cause of action as that set forth in the petition in the present action; (7) in finding that the conveyance of the real estate in question from Minerva D. Hopwood to the Hopwood Realty, Inc., was unlawful,-(8) that the finding and judgment is against the-weight of the evidence; ('9) that the finding and judgment is contrary to law; (10) in overruling the motion for a new trial; (11) that the finding and judgment should have been in favor of the defendants.

We do not deem it necessary to discuss every-assignment of error. We are in accord with the judgment of the trial court in its rulings on the pleadings and in overruling the motion for new trial. After a consideration of the entire record in this case this court is in accord with the judgment of the trial court in holding that an express oral trust was engrafted on the deed executed on July 12, 1938, by which the Suburban Home Mortgage Company conveyed the lots to Minerva D. Hopwood. We-have no difficulty in finding that by clear and convincing evidence the conveyance was made for the reasons alleged in the plaintiff's petition. The evidence presented by the plaintiff supports the allegations of the petition on this issue. It is well settled in Ohio that where an absolute conveyance of land is made by deed and there is nothing in the deed which would be inconsistent with an oral trust a parol express trust may be engrafted upon such deed. 40 Ohio Jurisprudence, 166, Section 33. We also hold that the evidence meets the requirement that such oral trust must be proven by clear and convincing proof as held in Merrick v. Ditzler, 91 Ohio St., 256, 267, 110 N. E., 493, or “beyond a reasonable doubt” as held in Russell v. Bruer, 64 Ohio St., 1, 59 N. E., 740, and that the declaration of the trust must be made prior to or contemporaneous with the execution of the deed. 40 Ohio Jurisprudence, 168, Section 34.

The evidence does not support the several defenses interposed by the defendants. On the other hand there is ample evidence to support the claim made by the plaintiff to the effect that the deed given by the plaintiff to Minerva D. Hopwood was not supported by the consideration as alleged in «defendants’ answer, that the purpose of its execution was to give security to Harry L. Hopwood in the event he sold the property of the Henry Holtzman & Sons Company, and that if no sale was effected the property would be reconveyed. The evidence shows that no sale was effected and that according to the agreement the plaintiff is entitled to a reconveyance.

The defendants contend that the judgment in case-No. 167208 is a bar to the prosecution of this action. Before the court can find that the judgment in the other action is res judicata it will be required to find that the issues were identical, involving the same parties,, and sustained by the same evidence. 23 Ohio Jurisprudence, 961, 974, Sections 730, 743; Leonard v. Murdock, 147 Ohio St., 103, 68 N. E. (2d), 86; Vasu v. Kohlers, Inc., 145 Ohio St., 321, 61 N. E. (2d), 707, 166 A. L. R., 855; Norwood v. McDonald, 142 Ohio St., 299, 52: N. E. (2d), 67. The evidence in support of the plea of res judicata does not meet the test applied in the cases just cited. In the other action the plaintiff sued theHopwoods for an accounting for the purchase price of Lot No. 10 which was sold by Minerva D. Hopwood. This sale was made prior to the time of the transfer of the lots from Minerva D. Hopwood to the Hopwood' Realty, Inc., which was not and could not have been a party to that action. In the instant case, the plaintiff is seeking a reconveyance of the remaining lots. While-it is true both actions arise out of the same transaction there are different parties defendant, the character of the action is different, a different remedy is sought,, and the evidence introduced on the issues made in the-two actions between the parties is different. Moreover, the Hopwood Realty, Inc., is not and never has been interested in Lot No. 10. If it be conceded’ that both actions relate to the same subject matter, which we question, a plea of res judicata cannot be-supported. Leonard v. Murdock, supra; Norwood v. McDonald, supra.

A plea of res judicata when proven binds parties- and those in privity with them. Parties in privity are those who acquire an interest in the subject matter-after the beginning of the action or the rendition of' the judgment; and if their title attached before that. fact, they are not bound unless made parties. Vasu v. Kohlers, Inc., supra. Since the deed to the Hopwood Realty, Inc., was executed before either action was ■commenced, no privity exists. Neither is the plaintiff precluded by election of remedies. The doctrine of •election of remedies is applicable only where, at the time of election, there are available to the litigant for the assertion of a single right, two or more coexisting remedies which are repugnant to and inconsistent with •each other. 15 Ohio Jurisprudence, 239, Section 14; Norwood v. McDonald, supra; Frederickson v. Nye, 110 Ohio St., 459, 144 N. E., 299, 35 A. L. R., 1163. In •our judgment the remedies are not repugnant but ■entirely consistent.

In case No. 167208 the plaintiff was given judgment for an accounting as prayed for. On appeal the judgment was affirmed by this court. In the instant case, this court again is required to consider the evidence in “that case since by stipulation of counsel the entire record in that case was submitted as part of the record in this case with the reservation as to certain matters in defense which were not considered material, relating to attorney’s fees. Additional testimony was presented in the trial court in the instant case supporting the ■claim made by the plaintiff. After a review of all of the evidence in this case we are of the opinion that the judgment of the trial court was not against the manifest weight of the evidence and was not contrary to law.

The defendants contend that since the transaction between the plaintiff and the defendant, Harry L. Hop-wood, was illegal, being in violation of the provisions •of the Real Estate Brokers Act, the court cannot accord plaintiff equitable relief but must leave the par-dies where it finds them. In the case of Suburban Home Mortgage Co. v. Hopwood, 47 Ohio Law Abs., 596, 73 N. E. (2d), 519, this court in affirming the judgment of the Common Pleas Court of Franklin county in-case No. 167208 held that the plaintiff in that case was-entitled to recover “since the acts precluded by the-Brokers’ Act are mala prohibita and not mala in se.” We confirm the judgment of this court in that case and’ adopt it as our judgment on this issue in this case.

The evidence shows that Minerva D. Hopwood paid' taxes and assessments on the property in the amount of $492. The defendants contend that the plaintiff is not entitled to a decree inasmuch as there has been no-tender of the sum of money paid for taxes and assessments. There was no legal obligation resting on Minerva D. Hopwood to pay the taxes and assessments. The deed to her recites that “the said premises are free- and clear from all incumbrances whatsoever, except unpaid taxes and assessments.’’ She did not assume- and agree to pay the taxes and assessments. The payment of taxes and assessments by her constituted a voluntary payment. A pure volunteer who pays the-debt of another is not entitled to recover from him-whose debt he pays.. 31 Ohio Jurisprudence, 213, Section 134. Neither can money paid under a mistake-as to a person’s legal liability be recovered. 31 Ohio-Jurisprudence, 234, Section 163; City of Cincinnati v. Gas Light and Coke Co., 53 Ohio St., 278, 41 N. E., 239.

The defendants contend further that since the plaintiff in its petition prays for a cancellation of the deeds-the court may not order a reconveyance. The prayer is no part of the cause of action alleged and cannot restrict the nature of the relief which facts alleged authorize. 31 Ohio Jurisprudence, 627, 629, Sections 79, 80. This action is one in equity in which the plaintiff' prays for general equitable relief. Under the prayer for general equitable relief, the court may grant any relief that is consistent with the pleadings and the-evidence. 16 Ohio Jurisprudence, 316, Section 154; State, ex rel. Masters, v. Beamer, 109 Ohio St., 133, 141 N. E., 851; Schaefer v. First Natl. Bank, 134 Ohio St., 511, 18 N. E. (2d), 263; Triff, Admx., v. National Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131; Coffinberry v. Sun Oil Co., 68 Ohio St., 488, 67 N. E., 1069.

The evidence shows that the Hopwood Realty, Inc., took title to these lots by transfer from Minerva D. Hopwood without consideration. The title of the Hop-wood Realty, Inc., is burdened by all the infirmities -which attached to the title of the Hopwoods. The Hop-wood Realty, Inc., holds title to the property unlawfully. The trial court very properly decreed a reconveyance of the property.

The judgment of the trial court is affirmed in all fits particulars.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.

(Decided March 12, 1948.)

'On Application for rehearing.

By the Court.

The defendants contend that an or•der should be made reimbursing Minerva D. Hopwood for taxes paid by her on the real estate in the amount ■of $492. This court found that Minerva D. Hopwood 'held the legal title to. the property in trust for the plaintiff. It is contended that a trustee is entitled to Tie reimbursed for expenditures made in connection with the administration of the trust, including the payment of taxes. Defendants cite 54 American Jurisprudence, 413, Section 520; 124 A. L. R., 1416; Mannix, Assignee, v. Purcell, 46 Ohio St., 102, 19 N. E., 572, 15 Am. St. Rep., 562, 2 L. R. A., 753.

The defendants contend that the court was in error in holding that the payment of taxes on the property by Minerva D. Hopwood was a voluntary payment. We do not deem it necessary to discuss the law in regard to this matter. After a reconsideration of this question, we are of the opinion the trustee should be reimbursed for taxes paid by her with six per cent interest from date of payment. Such an order appears to this court as being equitable and just and more in accord with the maxim that “he who seeks equity must do equity.” Plaintiff will be granted a decree upon making such reimbursement. The former opinion is confirmed in every other respect.

Judgment accordingly.

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


author: Skeel, J.

text:
    Schwenger-Klein, Inc., Appellant, v. Pacific Mutual Life Ins. Co., Appellee.
    (No. 20925
    Decided May 24, 1948.)

      Messrs. Miller, Daus é Schwenger, for appellant.

      Messrs. McKeehan, Merrick, Arter & Stewart} for appellee.
   Skeel, J.

This appeal conies to this court on questions of law from a judgment entered for defendant in the Municipal Court of Cleveland.

The plaintiff, appellant herein, is the beneficiary under a policy of life insurance issued by the defendant, appellee herein, on the life of one Arthur Mailing. The policy was issued on January 3, 1921. The annual premium for the life insurance provided for in the policy was $287 per annum, the policy providing:

“In consideration of the application for this policy, a copy of which is attached hereto and made part hereof, and the payment in advance of the annual premium of two hundred eighty-nine and 50/100 dollars and the payment of a like premium on the third day of January in each year during the continuance of this policy until the death of the insured [the difference in premium above to be noted is occasioned by the fact that the policy provided for disability benefits up and until the assured reached sixty years of .age]; promises to pay * * * on receipt of said home office of due proof of the death of Arthur Mailing, •herein called the insured, ten thousand dollars, less .any indebtedness hereon to the company and any unpaid portion of the premium for the then current policy year to The Schwenger-Klein Company, a corporation, its successors or assigns beneficiary * *

The insured died at 10 o’clock a. m. on January 3, 1947. The premium had been paid for the policy year •beginning January 3, 1946. The defendant, upon notice of the death of the assured, paid the face value of the policy, less the premium for the policy year beginning January 3, 1947. Such payment was received by the plaintiff without prejudice to its right to litigate the question here presented — whether the defendant, under the above facts, which are not in dispute, had the right to deduct the premium for the policy year beginning January 3, 1947, from the proceeds of the policy.

It is the contention of the plaintiff that “where a premium is to be paid on a day certain, but no particular hour is specified, the policy remains in force during the whole of the day and until midnight thereof without payment of an additional premium. The protection period purchased by the payment of the previous premium does not expire until midnight of the premium date. If the insured dies on such premium date, the company is liable for the face amount of the policy without light of deducting an extra year’s premium. ’ ’

The following authorities are cited in support pf such claim: Douglas v. Mutual Life Assurance Co., 13 Alta. L. R., 18, 38 D. L. R., 459; Greulich v. Monnin, 142 Ohio St., 113, 50 N. E. (2d), 310, 149 A. L. R., 477; Bouvier v. Craftsman Ins. Co., 300 Mass., 5, 13 N. E. (2d), 619.

There can be no doubt that, by virtue of the contract of insurance calling for the annual payment of premiums, upon the expiration of a year for which the premium has been paid the policy is not in default oil the first day of the succeeding year. But this is not because the premium paid for the previous year’s insurance extends beyond the year for which it was paid. An annual premium payment is the consideration of one year’s coverage for 365 days, not 366 days. The reason that on the anniversary day upon which the premium becomes payable the insured is not in default is because the insured has all of that day in which to pay if he desires to continue the contract of insurance.

In 39 Ohio Jurisprudence, 196, Section 10, under the heading, “Computation of Time,” the rule is stated as follows:

“The term ‘day,’ in law embraces the entire day, and refers to a day as a unit of time, not as an aggregation of a certain number of hours, minutes, or seconds. In this sense, and for the purpose thus used, a day is not capable of subdivision into hours, minutes, or seconds, but is to be taken as a whole. In such computations the hours are not counted to ascertain whether a period of twenty-four hours or a given number of such periods have elapsed between the act to be done and the day from which the time is to begin running. The fractions of the days are no more taken into consideration than are the fractions of the seconds. The consequence is that every day and every part of that day is, by this rule, one day before every part of the succeeding day. The last moment of any day is, in contemplation of law in such cases, one day before the first moment of the next day, although the elapsed time is infinitesimal. The rule is strictly one of convenience. Any other method of computation would require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable. ’ ’

The policy provision as quoted above, as to what shall be deducted from the face value of the policy, when, under' the terms of the contract the insurance becomes payable, provides that in addition to other debts due the insurer, from the insured, there shall be deducted ‘ ‘ any unpaid portion of the premium for the then current policy year.” The current policy year at the time of the death of the insured on January 3, 1947, was the term of one year beginning January 3, 1947.

The plaintiff’s contention that because the policy would not be in default (not giving consideration to the thirty-day grace period) until after the entire day of January 3, 1947, had passed, the current policy year did not begin until after such day had fully passed, cannot be supported. The beginning of the “current policy year” and the time when, because of the nonpayment of premiums, the policy is in default are not the same. Because there can be only one January 3 in any one year, and because the policy provides that the obligation of the insurer begins January 3, 1921, and for each subsequent year for which the premium is paid, the “current policy year” of each succeeding year begins on January 3.

For the foregoing reasons the judgment of the Municipal Court of Cleveland is affirmed.

Judgment affirmed.

Morgan, J., concurs.

Hurd, P. J., dissents.


author: By the Court.

text:
    Williams, Appellee, v. Martin, Appellant.
    (No. 6987
    Decided May 24, 1948.)

      Messrs. Ginocchio é Ginocchio, for appellee.'

      Mr. James N. Martin, in propria persona.

   By the Court.

The plaintiff, having acquired title to the premises occupied by the defendant, served him with legal notice to vacate before instituting this action in forcible entry and detainer, and for rent.

No answer was filed by the defendant, and, so far as the record shows, he never asserted that he had a lease other than one from month to month.

At the trial, the only issue that developed was as to the payment of rent for the month of December 1947. As the notice to leave did not require the defendant to quit the premises till January 3, 1948, the payment or nonpayment of the rent for the month of December 1947 was immaterial upon the issue of the right to possession. Payment of rent for December would give the defendant no right of occupancy in January under a lease from month to month. It would be material only upon the right to a judgment for the unpaid rent, if any.

The record seems to indicate that the defendant may have been in.some doubt as to whom to pay the rent. In 32 American Jurisprudence, 378, Section 461, it is said: “After notice to the tenant that the premises have been conveyed by the lessor, the tenant must pay accruing rents to the grantee.”

Rent that had accrued and remained unpaid at the time of sale is due and payable to the grantor, in the absence of an agreement between the grantor and grantee that it shall be payable in whole or in part to the latter. 32 American Jurisprudence, 360, Section 442. In the case at bar there is evidence that an agreement existed whereby the grantee ivas entitled to the rent for December, subject to a duty to apportion it with the grantor.

If the defendant was in doubt as to whom to pay the rent, the law provided him with a remedy. He could have paid the money into court and interpleaded the parties who were making claims against bim for the same debt. 32 American Jurisprudence, 126, Section 123.

Whatever doubt the defendant had as to whom to pay the December rent, it was no defense to the forcible entry and detainer action.

There is no certificate that the bill of exceptions contains all the evidence. That fact alone prevents this court from reversing the judgment. There is also another reason and that is, that the bill of exceptions shows that the judgment appealed from was rendered with the consent and agreement of the defendant. If any error was committed in entering the judgment he, therefore, induced it and cannot complain.

■ We find no prejudicial error in the record and, therefore, affirm the judgment.

Counsel for plaintiff, appellee herein, have asked us to assess a penalty against the defendant for prosecuting this appeal and we have given serious consideration to this request.

The defendant had a basis for his doubt as to whom to pay the December rent. It seems to this court that the parties were about equally to blame for not resolving that doubt to the satisfaction of the defendant. It was that misunderstanding that seems to have dictated the conduct of the defendant throughout.

Although the judgment appealed from was by consent, the defendant’s consent was given by his attorney, and the record does not show that defendant knew of it or consented personally.

In this court, the defendant appeared in his own proper person, without benefit of counsel at the hearing.

Under all the circumstances, we have concluded that the ends of justice would not be subserved by assessing a penalty. We are of the opinion that the appeal was taken in good faith, and with some hesitation we find that there was reasonable ground for prosecuting the appeal so far as it related to a money judgment for rent.

Judgment affirmed.

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


author: Wiseman, P. J.

text:
    Keifer, Exr., Appellee, v. Kissell, Admx., Appellant.
    (No. 468
    Decided November 1, 1947.)

      Messrs. Keifer é Keifer, for appellee.

      Mr. Abe Gardner, for appellant.
   Wiseman, P. J.

Tliis is an appeal on questions of law from a judgment of the Common Pleas Court of Clark county, rendered in favor of the plaintiff, William W. Keifer, in an action in which the plaintiff, as-executor under the will of Webb W. Witmeyer, deceased, sought to recover from Olive M. Kissell, administratrix of the estate of Floyd Maxwell Kissell,, deceased, a sum of money which the estate of Witmeyer was required and did pay to the Lagonda National Bank of Springfield, Ohio, as the amount due on a note on which the Kissells and Witmeyer were co-signers, the Kissells being the principals, and Witmeyer a surety.

A jury being waived, the matter was tried to the court on an agreed statement of facts wherein it was stipulated: That the averments of facts in the petition are true; that the notes given in renewal of the indebtedness after February 5, 1944 (the date of death of Floyd M. Kissell), were signed only by Olive M. Kissell and Webb W. Witmeyer; that Olive M. Kissell was appointed administratrix of the estate of Floyd M. Kissell, deceased, on April 5, 1945; and that the plaintiff presented the first written proof of claim to the administratrix on April 11, 1946.

It appears that the original note was signed by Floyd M. Kissell, Olive M. Kissell, and Webb W. Witmeyer, and the indebtedness was secured by mortgage on real estate owned by Witmeyer. Payments were made on the note from time to time, and renewal notes were given.

The real estate mortgaged to secure the'debt was sold in a land sale proceeding in the Probate Court of Clark county by the executor of the estate of Webb W. Witmeyer, and the executor was required and did pay to the bank the sum of $3,955.17, being the balance due on the note.

The payment to the bank was made on April 10,1946. The executor presented proof of claim to the administratrix of the Kissell estate on April 11, 1946. The -administratrix of the Kissell estate having been appointed on April 5, 1945, more than four months had •expired before the claim was presented.

The defendant, appellant herein, contends that the court erred in rendering judgment in favor of the plaintiff on that state of facts. More specifically, the ■defendant contends that since the claim was not presented until after the expiration of four months after the date of the appointment of the administratrix, the ■claim is barred under the provisions of Section 10509-112, General Code, which in part provides:

“All claimants shall present their claims to the •executor or administrator in writing, * * * whether ■due or not due, secured or unsecured, liquidated or unliquidated. All claims shall be presented within four months after-the date of the appointment of the -executor or administrator.”

In support of the contention that the presentment of the claim within the four-month period is mandatory, the following eases are cited: Prudential Ins. Co. v. Joyce Bldg. Realty Co., 143 Ohio St., 564, 56 N. E. (2d), 168; Beach, Recr., v. Mizner, Exr., 131 Ohio St., 481, 3 N. E. (2d), 417; Akron Commercial Securities Co. v. Ritzman, Admx., 79 Ohio App., 80, 72 N. E. (2d), 489; Breen, Admx., v. Conn et al., Exrs., 64 Ohio App., 325, 28 N. E. (2d), 684; Hampton, Admr., v. Replogle, 47 Ohio App., 394, 191 N. E., 885; In re Estate of Christopher, 26 Ohio Law Abs., 422, 35 N. E. (2d), 454. We -approve the principle of law for which these cases are authority. However, this principle of law has no application to the facts in the instant case.

The last sentence in Section 10509-112, General 'Code) is as follows:

‘ ‘ Claims which are contingent need not be presented •except as otherwise provided in this chapter. ’ ’'

By an amendment to the Probate Code, effective-August 22, 1941, provision was made for the presentment of a contingent claim in the enactment of Section 10509-216, General Code, which provides:

“If a claim is contingent at the time of the decedent’s death and a cause of action subsequently accrues thereon, such claim must be presented to the executor or administrator, in the same manner as other claims,, before the expiration of four months after the appointment of the executor or administrator or before-the expiration of two months after the cause of action accrues, whichever is later, except as hereinafter provided. The executor or administrator shall allow oiré ject such claim in the same manner as other claims are allowed or rejected. If the claim, on being presented, is allowed, the executor or administrator shall proceed to pay such claim according to law. If the claim is rejected, the claimant shall commence am action thereon within two months after such rejection or be forever barred from maintaining an action thereon.” (Italics for emphasis.)

The exception mentioned in the above quoted section is found in Section 10509-2166, General Code, and has no application to the instant case. The plaintiff in this case properly proceeded under Section 10509-216, General Code. No cause of action accrued to the plaintiff until payment was made by the executor of decedent’s estate. 38 Ohio Jurisprudence, 590, 592; Henderson-Achert Lithographic Co. v. John Shillito Co., 64 Ohio St., 236, 60 N. E., 295, 83 Am. St. Rep., 745; Poe v. Dixon, 60 Ohio St., 124, 54 N. E., 86, 71 Am. St. Rep., 713; Barger v. Gething, 39 Ohio Law Abs., 221, 223. The claim was presented the day after the cause of action accrued, and suit was instituted within two months after the claim was rejected.

Unquestionably the claim of plaintiff’s decedent was •a contingent claim. In Pierce v. Johnson, Exr., 136 Ohio St., 95, 23 N. E. (2d), 993, 125 A. L. R., 867, the court says on page 98:

“Authorities agree that a contingent claim is one, the liability upon which is dependent upon some uncertain future event which may or may not occur. It is this element of dependency upon an uncertainty which renders a claim contingent.”

See, also, 21 American Jurisprudence, 582, 583; 11 Ruling Case Law, 205; 34 Corpus Juris Secundum, 171.

A contingent claim must not be confused with an unmatured claim. In the 1941 amendments to the Probate Code, unmatured and contingent claims were ■carefully distinguished. Section 10509-112, General Code, provides that all claimants shall present their •claims “whether due or not due.” This provision relates to matured and unmatured claims. An un■matured claim is one where the liability is certain but the maturity or due date has not arrived; whereas, a contingent claim is one where the liability depends upon some indefinite or uncertain future event which may never happen and liability may never arise. The claim of the plaintiff was a typical contingent claim which is controlled by Section 10509-216, General Code. The plaintiff was not required to proceed under Section 10509-134, General Code, which prescribes the procedure for presenting claims which are not presented within the time prescribed by law; neither was the plaintiff amenable to other provisions of that seciion.

It is urged by defendant that the renewal of the notes by Olive M. Kissell and Webb W. Witmeyer, after the death of Floyd M. Kissell, operated as an extinguishment of the debt of Floyd M. Kissell. With this contention we cannot agree. It is well established that the renewing of notes from time to time in no way extinguishes the original debt. It is simply an extension of the time of payment and a change as to the-evidence of the debt. 31 Ohio Jurisprudence, 183; Chase v. Brundage, 58 Ohio St., 517, 51 N. E., 31; Leach v. Church, Admr., 15 Ohio St., 169; First Natl. Bank v. Patton Co., 13 C. C. (N. S.), 289, 22 C. D., 627; Minerva Savings & Trust Co. v. Lyder, 9 Ohio Law Abs., 20, 21, 34 O. L. R., 73.

Finding no error in the record, the judgment is-affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    Enos, Appellee, v. Enos, Appellant.
    (No. 4022
    Decided October 3, 1947.)

      Mr. Horace S. Kerr, for appellee.

      Mr. B. N. Murray, for appellant.
   By the Court.

This is an appeal from a judgment •of the Common Pleas Court of Franklin county in which the plaintiff was granted a decree of divorce from the defendant and an order was made respecting .a division of property.

The notice of appeal states that the appeal is on “question of law and fact.” No appeal bond was given as required by Section 12223-6, General Code. Because of the failure to give an appeal bond as required by that section, the appeal is ineffective as an appeal on questions of law and fact.- The appeal is not dismissed but stands for hearing as an appeal on questions of law.

No bill of exceptions has been filed. When an appeal on questions of law and fact is ineffective and the •ease is retained as an appeal on questions of law, and no bill of exceptions has been filed, the reviewing court is required under the provisions of Section 11564, General Code, to fix a time for the preparation and settlement of a bill of exceptions, which shall not exceed 30 days. Loos v. Wheeling & Lake Erie Ry Co., 134 Ohio St., 321, 16 N. E. (2d), 467; Parker v. Ingle, 56 Ohio App., 62, 10 N. E. (2d), 166; Olsen v. Watson, 42 Ohio Law Abs., 411, 60 N. E. (2d), 621; Krause v. Henry, 30 Ohio Law Abs., 386, 20 O. O., 351, 35 N. E. (2d), 169.

The court orders this case to stand as an appeal on questions of law and grants to defendant 30 days after the filing of the entry journalizing this decision within which to prepare and settle a bill of exceptions.

Judgment accordingly.

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


text:
    Enos, Appellee, v. Enos, Appellant.
    (No. 4022
    Decided December 5, 1947.)

      Mr. Horace 8. Kerr, for appellee.

      Mr. B. N. Murray, for appellant.
   Wiseman, P. J.

This is an appeal on questions of' law from a judgment of the Common Pleas Court,. Division of Domestic Relations, of Franklin county,, granting a decree of divorce to the plaintiff and ordering a division of property.

Four grounds of error are assigned by the defendant, appellant herein, all of which require the review of the evidence. In effect the contention is made that' the judgment is contrary to the manifest weight of the-evidence, is not sustained by sufficient evidence and is-contrary to precedent.

The document filed in this court, designated a “bill of exceptions,” was not signed by the trial judge on. the ground that “it fails to embody the evidence sufficiently to give a true and full report.”

In the absence of a bill of exceptions, we are required to indulge the presumption that there was sufficient evidence presented to support the judgment.

As we find no error in the record, the judgment is-affirmed.

Judgment affirmed.

Mtt.t.er and Hornbeck, JJ., concur.


text:
    Bachman, Appellant, v. Ambos, Appellee.
    (No. 140
    Decided October 30, 1947.)

      Mr. H. K. Forsyth and Mr. U. R. Doorley, for appellant.

      Mr. Taylor Cummins and Mr. R. E. Boiler, Jr., for appellee.
   By the Court.

This is an appeal on questions of law from a judgment on a verdict, entered by the Common Pleas Court of Shelby county in favor of the defendant.

The plaintiff, appellant herein, brought an action for damages arising out of a collision between the plaintiff’s automobile and the defendant’s truck, which collision occurred on September 20, 1944, at 7:30 a. m. on a public highway in Shelby county, extending in an easterly and westerly direction. The plaintiff alleged that as he was driving his automobile in an easterly direction on the right or south side of the highway, the defendant, who was driving his light pickup truck in a westerly direction, upon approaching the point of collision, suddenly swerved his truck from the north side to the south side of the highway, and, without reducing its speed and without keeping a proper lookout for approaching vehicles on the highway, crashed into the plaintiff’s automobile.

The defendant in his answer and cross-petition denied any negligence on his part and charged the plaintiff with contributory negligence, the specific charge of such negligence being that the plaintiff abruptly swerved his automobile from the south or his right side of the highway, across the center line to the north side or defendant’s right side of the highway. Defendant alleged that plaintiff while facing a low, rising sun failed to maintain a lookout for other vehicles and, after seeing the defendant’s truck, failed to stop, reduce the speed or change the course of his automobile in time to avoid a collision.

In his reply the plaintiff denied the essential allegations in defendant’s answer and cross-petition.

The jury returned a general verdict for the -defendant upon which the court entered judgment.

The plaintiff has assigned seven separate grounds of error, several of which are related and may be considered together.

The plaintiff contends that the trial court committed prejudicial error in permitting counsel for the defendant to interrogate the plaintiff on cross-examination, over objection, relative to prior automobile accidents, and that counsel for defendant were guilty of misconduct in conducting the cross-examination of the plaintiff.

The record of the examination is as follows:

“Q. Have you been involved in other automobile accidents ?

“Mr. Forsyth: Object.

“Court: Overruled.

“Q. Have you been involved in other automobile accidents ?

“Mr. Forsyth: Object.

“Court: Overruled.

“A. No, I haven’t — no serious automobile accidents.

“Q. No serious automobile accidents? Have you been involved in minor automobile accidents?

“Mr. Forsyth: I object to all this line of questioning.

£ £ Court: Overruled.

“Q. Go ahead and answer. A. Not that I recall of any. I got bumped into in Jackson Center—

“Q. Didn’t you have an accident in Maplewood?

“Mr. Forsyth: I object.

£ ‘ Court: Overruled.

“A. That was not intentional — ”

The genera] rule in such cases is that evidence relating to prior accidents is inadmissible. 17 Ohio Jurisprudence, 233, Section 180. But it is claimed that under an exception to the general rule such evidence is admissible to show a dangerous condition or defect. Brewing Co. v. Bauer, 50 Ohio St., 560, 35 N. E., 55, 40 Am. St. Rep., 686; Cottman v. Federman Co., 71 Ohio App., 89, 47 N. E. (2d), 1009; Hiller v. Shaw, 45 Ohio App., 303, 307, 187 N. E., 130.

The questioning relative to prior accidents followed an examination of the plaintiff relative to his impaired vision. The medical testimony showed that plaintiff’s vision without glasses was 20/400 and with glasses 20/70, or about one-third normal vision.

In Hiller v. Shaw, supra, on pages 307, 308, Judge Sherick stated:

“It is claimed that the trial court erred in the rejection of evidence. Upon cross-examination of the defendant in error, this question was asked, ‘Have you ever had any other automobile accidents except this one?’ An objection was interposed thereto, and was sustained. An exception was then noted. To our notion this question was proper. This was cross-examination. It might have led to proof that the plaintiff’s admitted impaired vision had caused prior accidents of like kind, from which it might be reasonably inferred that this collision was all or in part due to the same cause. The jury had a right under the defense made to weigh any such probability and indulge any reasonable inference therefrom. We are able to conjecture situations where it might be negligence for one of impaired .vision to drive an automobile at any time.”

In the case at bar, the evidence relative to prior accidents was admitted, but counsel did not offer such ■evidence for a limited purpose, and the court did not ■so instruct the jury. A general objection was overruled. In Cottman v. Federman Co., supra, it was held that while “it is better practice to limit the evidence at the time it is received, with or without a request, the failure to do so does not constitute prejudicial error if, after request, the court properly limits it in its general charge.” In the case at bar, the court did not limit the evidence in its general charge and made no comment in regard thereto. In Brewing Co. v. Bauer, supra, it is stated in the syllabus that the jury should be so instructed at the time the evidence is received. But in that case the record shows that the jury was instructed at the time the evidence was received and, therefore, no question was raised relative to the omission to limit the evidence at the time it was introduced. The court, in Jaffe v. Powell, 121 Ohio St., 355, 169 N. E., 31, quotes with approval the second paragraph of the syllabus in the ease of Brewing Co. v. Bauer, supra. In the instant case the evidence was received generally. The admission of such evidence generally was erroneous and would constitute reversible error but for the application of the “two-issue” rule. The record does not disclose upon which issue the verdict was based, and no error is disclosed in presenting or submitting the issue of the defendant’s negligence. The evidence relates to the issue of contributory negligence. In view of the defense of contributory negligence and a general verdict without interrogatories, the. “two-issue” rule is applicable. Knisely v. Community Traction Co., 125 Ohio St., 131, 180 N. E., 654; Binder v. Youngstown Municipal Ry. Co., 125 Ohio St., 193, 180 N. E., 899; Kihlken, Admr., v. Barber, 129 Ohio St., 485, 196 N. E., 164; Moody v. Vickers, 79 Ohio App., 218, 230, 72 N. E. (2d), 280; Chevalley v. Degar, 39 Ohio Law Abs., 301, 52 N. E. (2d), 544.

The charge of misconduct of counsel was based on the following question put to the plaintiff on cross-examination immediately following his examination relative to prior accidents.

“Q. Has not your insurance been cancelled on your car as a result of this accident?

“Mr. Forsyth: I object and ask that the jury be specifically instructed to disregard the question. It’s said only to prejudice the case. I should ask for a mistrial !

‘ ‘ Court: Sustained.

“Q. That’s all.”

The question being objected to and the objection sustained, we fail to find any misconduct of counsel which tended to prejudice the minds of the jurors and prevent a fair trial. The rule that reference to insurance is prejudicial does not apply here. The rule applies where it is attempted to show that there is an insurance policy to indemnify the litigant against loss. The question raised does not fall within the rule.

Plaintiff claims error was committed in admitting evidence which tended to impeach the testimony of the plaintiff without first laying the proper foundation. On cross-examination plaintiff was asked whether he had ever made a statement to anyone, without specifically mentioning the person, time or place, that the sun was shining in his eyes and that he became confused by.it. The plaintiff answered: “I did not.” A witness was called by the defendant who testified that the plaintiff had stated to him that “the sun was in his eyes.” One of the specifications of negligence in the defendant’s cross-petition was that the “plaintiff, while facing a low, rising sun, was proceeding east on said highway, failed to maintain a look-out to observe approaching vehicles.” In view of such charge of negligence in the cross-petition, it was proper for the defendant to present this evidence in making out his case. Declarations or admissions against interest may always be given in actions against the declarant. 17 Ohio Jurisprudence, 300, Section 232. No foundation for the admission in evidence against á declarant, of his own declaration against interest, is necessary. 17 Ohio Jurisprudence, 303, Section 235; DeGroodt, Exrx., v. Skrbina, Admr., 111 Ohio St., 108, 114, 144 N. E., 601, 38 A. L. R., 591. In our opinion the evidence presented by the defendant was competent and would have been admissible without the cross-examination of the plaintiff on the subject.

It is claimed that the court erred in refusing plaintiff’s request, at the end of the general charge, to charge on “sudden emergency.” The record does not show that counsel formulated a specific charge on this subject or presented any definite proposition of law applicable to the issue presented. In order to predicate error upon the court’s refusal to charge as requested, if the charge as given is correct and not misleading to the jury, such omission must be called to the attention of the court, and there must be some specific rule of law formulated and presented. 39 Ohio Jurisprudence, 1008 et seq., Section 297; Cincinnati Traction Co. v. Lied, 9 Ohio App., 156, 160; Haley v. Dempsey, Exr., 14 Ohio App., 326 (motion to certify record to Supreme Court overruled on June 21, 1921). See, also, Portney v. Frank, 77 Ohio App., 357, 65 N. E. (2d), 290, and cases therein cited.

The instant case was thoroughly tried and the parties were represented by competent counsel. We have carefully considered all the evidence. There was a conflict in the evidence on the important issues presented. The factual situation presented a case for the consideration of the jury. The jury resolved the evidence in favor of the defendant. There is ample evidence to support the verdict. We cannot say, after consideration of the entire record, that the verdict is not sustained by sufficient evidence; neither can we conclude that the verdict and judgment thereon are contrary to law.

The judgment is affirmed.

Judgment affirmed.

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


author: Matthews, P. J.

text:
    Streeton, Appellant, v. Roehm et al., Appellees.

      (No. 6935
    Decided April 19, 1948.)

      Messrs. Armstrong, Englender <& Jansen, for appellant.

      Mr. Albert Spievach and Mr. Robert G. McIntosh? for appellees.
   Matthews, P. J.

On motion of defendant Marie Roelim, made at the conclusion of the plaintiff’s evidence, for an instructed verdict in her favor, the court instructed the jury to find for Marie Roehm and her codefendant, Helen Miller. Judgment was entered on that verdict. Thereafter, in due time, the plaintiff moved to set aside the judgment and verdict, and for a new trial, which motion the court overruled. It is from that judgment that this appeal was taken.

The plaintiff alleged in his amended petition that the defendants on the 17th day of April 1946 were the-joint owners and operators of a multiple dwelling house in the city of Cincinnati, of which they were in possession and control, and were engaged in renting furnished rooms therein to various tenants, of which the plaintiff was one, occupying rooms on the third floor.

The plaintiff alleged that on the date stated at about 8 o’clock at night he descended the stairs to the second floor “and that as he proceeded to go from the second floor to the first floor there was no light, either natural or artificial in the stairway and that as he proceeded to attempt to descend the stairs in the darkness his foot missed the first step and he fell down the stairs -and was severely injured.” The negligence alleged .■against the defendants was that they “failed to cause the stairway to be properly lighted as required by 'Sections 1710 and 1580 of the Building Code of the Code of Ordinances of the city of Cincinnati,” which were set out in full. These ordinances required stairways, corridors, passageways, or other means of egress in certain buildings of the kind described in the amended petition and where this accident occurred, ■to be kept adequately lighted"at all times by “not less than one approved light on each floor, in the public hallway near the stairs. Additional approved lights •shall be provided where necessary for safety in the opinion of the commissioner of buildings. . All such lights shall be kept burning from sunset until sunrise except that in group £H-L.’ building 3 stories or less in height, such lights shall be kept burning from sunset until midnight. If lights are provided and then become extinguished without the knowledge or consent of the owner or his agent, said owner or agent shall- be presumed to have complied with the provisions of this section provided he shall have restored the same within a reasonable time.”

It was alleged that defendants refused to provide light in the stairway though requested by the plaintiff so to do and failed to restore lighting within a reasonable time after having knowledge of the lack of light.

There was no specific allegation that the stairway was used in common by the plaintiff and other tenants or that any special control over it was reserved by the -defendants. Nor was there any evidence on that subject.

There was no allegation or proof of any defect in the stairs other than the absence of adequate light.

Marie Roehm answered admitting that the premises-described were rented to tenants and that plaintiff was a tenant in the building, and then denied all other-allegations, and, as a second defense, alleged contributory negligence.

The plaintiff replied denying contributory negligence.

Summons was issued to the sheriff to be served on both Marie Roehm and Helen Miller. The sheriff’s-return shows that Helen Miller was not found and no-service was made upon her. Later her interest in the-real estate where the accident is alleged to have occurred was attached on the ground that she was a-nonresident, and she was duly served with notice by-publication of the attachment. She did not appear in-the action and at the time of the trial was in default for answer. As no personal service was had upon Helen Miller, no personal judgment could be rendered against her in any event. It is urged that the attachment conferred no jurisdiction over her interest in-the real estate, for the reason that the law does not authorize an attachment on the ground of nonresidencein an action to recover damages for personal injuries, and Pope v. Hibernia Ins. Co., 24 Ohio St., 481, is cited in support of that position. However, • that case was-decided in 1874, at' a time when the statute only authorized attachment on the ground of nonresidence in-actions on contracts, judgments and decrees. In 1891,. the section (now Section 11819, General Code) was-amended to provide for attachment on ground of' nonresidence in actions for damages for causing personal injury by a negligent or wrongful act. 88 Ohio-Laws, 65. See, also, Smith v. Buck, 119 Ohio St., 101, 162 N. E., 382, 61 A. L. R., 1343, where the only question discussed was whether a “slander” was a “personal injury” as that phrase is used in Section 11819, General Code, and the court held it was and sustained the attachment.

There was evidence that Helen Miller owned or had some interest in the real estate attached. The court, therefore, acquired jurisdiction in the cause to the extent of such ownership or interest.

At the opening of the trial the plaintiff moved for a default judgment against Helen Miller. The court overruled the motion and the trial proceeded against both defendants. It is. urged that the court erred in overruling the plaintiff’s motion.

We find that whether a court shall render a default judgment with or without requiring evidence in support of the plaintiff’s claim rests in the sound discretion of the trial judge. Dallas v. Ferneau, 25 Ohio St., 635, and Van Ingen v. Berger, 82 Ohio St., 255, 261, 92 N. E., 433. That discretion is peculiarly appropriate in an action for damages for personal injuries where the amount of recovery is not admitted by failure to answer, but must be determined from the evidence on the trial. See Sections 11329 and 11593, General Code.

Having discretion to require evidence to support the plaintiff’s allegations, it follows that the court should make its decision conform to the law as applicable to the facts proven, and if no cause of action is shown no default judgment in plaintiff’s favor should be rendered; Indeed, no court has jurisdiction to render judgment where the proof shows no cause of action exists.

We, therefore, hold that the court did not err in overruling the plaintiff’s motion for judgment by default against Helen Miller.

The remaining question is whether the plaintiff produced substantial evidence of a violation of duty by defendants directly cansing damage to plaintiff as alleged by him. We have already set forth the allegations of the plaintiff’s amended petition that as he was descending the stairs in the darkness, he missed the step and fell, and was injured. We do not stop to consider whether a cause of action is alleged. The question was not raised. We proceed to consider the evidence.

The plaintiff testified that he had lived in this third floor apartment for 18 months, that he rented the premises from Mrs. Roehm, that the stairway where he fell was the only means of reaching the third floor, that it was an inside stair well, that there was no light from the outside, that he had gone up and down these stairs every night during his tenancy, that it was eight o ’clock and he went down to the second floor landing and tried to turn on the electric light there located, but the light did not turn on when he operated the switch, that the light had operated for the first 16 months of his tenancy, but had failed to operate for the last two months, and that on the night in question he tried the light, but it would not turn on and then “I started back to the landing and was going to proceed down the steps — when I lost my balance. There is a ledge sticking out about four inches from the wall and my foot struck on that and that is what threw me.” He testified that there was a banister on the left side and that he was feeling for it when he lost his balance. At that time he was on the second floor landing.

Mrs. Roehm, called on cross-examination, testified that Helen Miller owned the premises and that she, Mrs. Roehm, leased them from Helen Miller. In the process of developing this evidence the court sustained objections to certain questions and that is assigned as error. However, as the sole purpose of the questions was to prove ownership and as that was fully developed and uncontradicted, the plaintiff could not have been prejudiced by the court’s rulings in any •event. It was not because of any defect in the proof as to ownership or control that the court based its decision in sustaining the defendant Roehm’s motion for .an instructed verdict. In sustaining the motion the court said that the verdict should be for both defendants “for the reason that as far as the other defendant, who was served by publication, is concerned, she-was not in possession or, if she was in possession, the •same rule would apply to her as applies to the defendant Marie Roehm.” And that rule the court said was .announced in Petrey v. Liuzzi, 76 Ohio App., 19, 61 N. E. (2d), 158. While there are many differences in the facts of that case and those in the case at bar, they are identical in the one crucial point that in each case the plaintiff with full knowledge of all the facts proceeded to use an unlighted stairway. In one case, matches ■ceased to burn and the plaintiff fell, and in this case the plaintiff missed a step, lost his balance and fell.

In holding that the plaintiff could not recover in Petrey v. Liuzzi, supra, this court relied upon Flury v. Central Publishing House, 118 Ohio St., 154, 160 N. E., 679, and Kahn’s Sons Co. v. Ellswick, 122 Ohio St., 576, 172 N. E., 668. In so doing we quoted the third paragraph of the syllabus of Flury v. Central Publishing House, supra, as follows:

“The testimony of a plaintiff invitee, in an action for negligence, that from a lighted room he opened a -closed metal-covered sliding door, was confronted with total darkness beyond the door, that he then .-stepped into such total darkness, to his injury, with•out any knowledge, information or investigation as to what such darkness might conceal, raises an inference of negligence on his part which, in the absence of any evidence tending to refute such inference, will require a directed verdict for the defendant.”

The plaintiff in the present case took many steps-in the dark before he finally missed a tread’ and fell. He was not lured into the darkness by anything the-defendants did. He was proceeding with full knowledge of all the circumstances. Under such circumstances, the plaintiff’s misfortune cannot be ascribed' to the conduct of another. His own action — negligent or otherwise — caused his injuries.

We are of the opinion that the court did not err in-sustaining the defendant Roehm’s motion for an instructed verdict at the close of the plaintiff’s evidence..

For these reasons, the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concurro the syllabus, opinion and judgment.


text:
    Pfister et al., Appellants, v. Walter, Admr., Appellee.
    (No. 6883
    Decided May 3, 1948.)

      Miss Sarah O. Krusting, for appellants.

      Mr. Robert F. Dreidame and Mr. Milton M. Bloom, for appellee.
   By the Court.

Three notices of appeal were filed in the Probate Court of Hamilton county, covering appeals on questions of law from orders of such Probate Court, all orders being entered in that court on the 15th of August 1947.

The notices of appeal were filed by creditors of the ■estate.

The first notice of appeal is addressed to an order of the Probate Court overruling the appellants’ exceptions to the amended final account of Edward A. Walter, administrator. ’

The second notice of appeal is addressed to an order of the Probate Court overruling appellants’ exceptions to the inventory of the administrator.

The third notice of appeal is addressed to an order of the Probate Court approving and settling the amended and corrected final account of such administrator and discharging such administrator and his ■surety.

One contention of the appellants may be disposed of at once. It is claimed that the issues considered in the orders under attack were previously adjudicated by orders of the court involving the same parties. Be that as it may, the court did grant a hearing on the issues disposed of by the orders under consideration, and it must be presumed, in the absence of a showing to the contrary, that it heard evidence upon such issues after “good cause shown.”

The authority of the court so to do is contained in Section 10506-40, General Code. No abuse of discretion appeared in the action of the court in granting the appellants leave to present issues, even though they were formerly considered by the court.

The controversy between the parties arises by reason of a contention on the part of the appellants that the administrator has continuously, from the very first, refused to consider himself liable on certain notes bearing his signature.

It is the contention of the appellants that such signatures of the administrator were placed upon the notes in the capacity of a comaker. It is the contention of the administrator that he was merely an accommodation maker.

If the administrator was a joint maker and joint obligor upon the notes, then he, in paying the obligations created by the notes, entirely out of the assets of his father’s estate, of which he was the administrator, rendered himself liable for a contribution to the estate covering his proportion of such obligations, unless such status was qualified by special agreement.

The appellants, by exceptions to the inventory and final account, sought to obtain from the Probate Court a ruling that the administrator had depleted the assets of the estate by paying his share of the obligations created by the notes out of the estate. This was the issue considered by the court, whose final decision was adverse to the appellants.

The only evidence in the bill of exceptions upon this issue is that of the administrator, who was permitted to testify that his signature was placed upon the notes merely as an accommodation maker and that the notes were, therefore, paid out of the estate assets.

It is the claim of appellants that the administrator was prevented from testifying because of the provisions of Section 11495, General Code. The appellee invokes the provisions of the same section, claiming the appellants, by calling the administrator for cross-examination, opened the door to a complete disclosure of the circumstances under which the notes were signed by the deceased and his son, the administrator.

Reference to the bill of exceptions shows that the administrator was called for cross-examination, but that the questions propounded to him involved merely the identification of his signature upon the notes.

The appellee contends that, such signatures having been placed upon the notes prior to the death of the decedent, all evidence in connection with the execution of the notes was admissible.

The administrator was not asked how or when he placed his signature upon the notes. He was merely asked to admit or deny his signature. He admitted it. Certainly, this cannot be considered as testimony of matters that occurred before the death of his decedent.’ This evidence referred only to an instant fact — the genuineness of the administrator’s signature. The facts in In re Estate of Alger, 10 Ohio App., 93, are clearly distinguishable from those involved herein.

In permitting the administrator to testify as to matters excluded by the provisions of Section 11495, General Code, the court committed error prejudicial to the appellants, and the orders from which appeals have been taken are set aside, and the cause remanded to the Probate Court for further proceedings in accordance with law.

Judgment accordingly.

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