author: Hurd, J. Morgan, J.,

text:
    In re Estate of Schneider : Schneider, Appellant, v. Rodgers et al., Appellees.
    (No. 20374
    Decided February 17, 1947.)

      Messrs. Woodle & Wachtel, for appellant.

      Mr. Paul Mancino, for appellees.
   Hurd, J.

This case originated in the Probate Court of Cuyahoga county and is now before this court on an appeal on questions of law from an order of the Common Pleas Court wherein that court dismissed an appeal on questions of law and fact taken from such Probate Court.

The facts which are not in dispute are as follows:

“Anna Schneider, the decedent herein died -a resident of the city of Cleveland on June' 25, 1942. She was survived by her husband,” John Schneider, who filed, with the Probate Court of Cuyahoga county, an application for letters of administration which was heard and granted on July 16, 1942, and letters of administration were issued to him on that date.

“John Schneider was the second husband of the decedent and a controversy arose between him, as administrator of his wife’s estate, and the appellees herein, who are the children of the deceased wife of her former husband. As the result of that controversy, two lawsuits were filed in the Court of Common Pleas of Cuyahoga county in 1942 against the appellees herein as defendants, by John Schneider, as administrator of his wife’s estate. Those cases are still pending in the Court of Common Pleas and have never been brought, to trial.

“John Schneider died on December 29, 1943. He was survived by two children, one of whom is Prank P. Schneider, the appellant herein.

“Thereupon Prank P. Schneider, who had acquired by inheritance a part of the interest of his father, John Schneider, in the estate of Anna Schneider, deceased, filed, an application in the Probate Court on November 8, 1944, for letters of administration de bonis non.

“The transcript of proceedings before this court discloses the following entry in the journal of the Probate Court:

“ ‘November 20, 1944. To court: On this 20th day of November, 1944, this case came on to be heard on the application of Frank P. Schneider to be appointed administrator de bonis non of the estate of Anna Schneider, deceased, late of the city of Cleveland in this county. Whereupon, the court having considered the said application and being fully advised in the .premises, orders that the application of the said Frank P. Schneider be and it is hereby refused.’

“Thereafter, upon the appeal being assigned for hearing in the Common Pleas Court, the trial judge dismissed the appeal on the ground that the court did not have jurisdiction to entertain the same and thereupon entered judgment for the appellees and it is from this judgment that an appeal is taken.”

■ The single question presented involves the construction and application of the following provision contained in Section 10501-56, General Code:

“If, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in courts of common pleas, then an appeal on questions of law and fact may be taken to the Court of Common Pleas by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the Probate Court in the manner provided by law for the prosecution of such appeal from the Court of Common Pleas to the Court of Appeals.”

This provision has had considerable attention from our courts on the question of constitutionality. In three separate cases it was declared unconstitutional. See State, ex rel. Ellis v. McCabe et al., Judges (Court of Appeals, Sixth Appellate District, unreported), reversed on other grounds in State, ex rel. Ellis, v. McCabe et al., Judges, 138 Ohio St., 417, 35 N. E. (2d), 571. See, also, Kline v. Kline, Admr., 71 Ohio App., 182, 48 N. E. (2d), 875, and In re Estate of Magdzicki, 71 Ohio App., 282, 49 N. E. (2d), 205.

However, the constitutionality of this provision was settled by the Supreme Court in a unanimous decision on March 8,1944, in the case of In re Estate of Bates, 142 Ohio St., 622, 53 N. E. (2d), 787, the syllabus of which is as follows :

“The provision of Section 10501-56, G-eneral Code (119 Ohio Laws, 396), that: ‘If, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas, then an appeal on questions of law and fact may be taken to the Court of Common Pleas by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the Probate Court in the manner provided by law for the prosecution of such appeal from the Court of Common Pleas to the Court of Appeals, ’ is not violative of either Section 26 of Article II, or Section 6 of Article IV of the state Constitution.”

This section applies even though the case, so appealed is not a chancery case. See page 623 et seq.

The question of constitutionality having thus been definitely settled, we have now to consider only the procedural difficulties presented by the issues in the instant case.

Counsel by way of brief state that it is somewhat remarkable that in spite of the fact that-the foregoing section has been in effect since August 22, 1941, the procedural questions therein presented, which are of far-reaching importance to the-bench and bar, have not heretofore been raised and there appears to be no-precedent for their solution.

■ It is the contention of the appellant that compliance with this section of the General Code entitled him to proceed to the Common Pleas Court with an appeal on questions of law and fact. The appellees argue that such section “clearly provides that, first, if a bill of exceptions cannot be prepared, or, secondly, if a complete record cannot be prepared, then the party aggrieved may take an appeal to the Court of Common Pleas as provided by law.”

We cannot agree with the appellees’ contention in this respect. There is nothing ambiguous about the-provision. All that is necessary in construing the section is to give to the-words used by the Legislature their plain and ordinary meaning. The language of the statute is plain and simple. We see no reason for any strained or tortuous interpretation and no reason, to read into the statute words that are not there.

The proposition was. well stated by Matthias, J., in his opinion in In re Estate of Bates, supra, at page 627, where he said:

“Section 10501-56, General Code, provides in very plain and simple language that when no record is made in the Probate Court ‘an appeal on questions of law and fact may be taken to the Court of Common-Pleas by a person against whom it is made, or. whom it affects.’

“It is to be observed, also, that the legislation involved in the present controversy provides merely an optional method of procedure to be pursued by a litigant.

“Appeal is thereby authorized to the Court of Common Pleas under the conditions therein prescribed^ but the jurisdiction of the Court of Appeals as conferred by the Constitution is in nowise restricted or modified.”

In an appeal to the Court of Common Pleas from the Probate Court, the jurisdiction of the Common Pleas Court is properly invoked by the filing of a notice of appeal in accordance with Section 12223-4, General Code,, which provides as follows:

“The appeal shall be. deemed perfected when written notice of appeal shall be filed with the lower court * * *. After being duly perfected, * * * no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.”

Further, the use o'f the words, “bill of exceptions or a complete record,” must mean a transcribed record of the proceedings in the Probate Court, thus granting the right, to a party aggrieved, to invoke the jurisdiction of the Court of Common Pleas, where a record may be taken, after which appeal may be takén to the Court of Appeals by any party on the basis of such record and the judgment of the Court of Common Pleas rendered therein. It is the fact that a record was not talcen which gives right to the person aggrieved, rather than what could have been done. Therefore, Section 10501-56, General Code, does not require a party to prepare a narrative bill of exceptions, as contended by the appellees.

In the case of In re Estate of Long, 76 Ohio App., 321, 64 N. E. (2d), 261, the converse of the situation here presented was before the court, the syllabus being as follows :

“When a record has been taken on a hearing in Probate Court, under Section 10501-56, General Code, an appeal on questions of law and fact to the Court of Common Pleas does not give that court jurisdiction of the cause and the appeal must be dismissed.”

At page 322, Carpenter, J., speaking for the court said:

“In this case, a record was taken and a complete bill of exceptions was filed in the Probate Court by the administratrix. Such being the record, the court did not err when it dismissed the appeal, and' its judgment is affirmed.” (Italics ours.)

. In the instant case no such showing is made. Nowhere in the proceedings, either in the Probate Court or the Common Pleas Court does it appear that a record was-taken in the Probate Court. On the contrary, it is conceded by all parties to this appeal that a record was not taken — rather it is argued that a record could have been taken and for this reason a right of appeal does not lie. We do not so read the statute. But, if such an admission were not made, it is our view that, inasmuch as the record of the proceedings in the Probate Court before us shows conclusively that all procedural steps required by Section 12223-4, General Code, were, taken, the Court of Common Pleas, under Section 10501-56, General Code, acquired, jurisdiction for all purposes and could not be ousted of such jurisdiction unless and until there was affirmative evidence showing a lack of jurisdiction.

The provisions of Section 10501-56 were enacted to enable a party, who feels aggrieved by a judgment or final order of the Probate Court where no record was taken, to make a record in a trial de novo in the Common Pleas Court. Frequently hearings in Probate Court are, of necessity, of a more or less informal nature. Court reporters are not assigned to the court to take records of all proceedings, as is true in the Common Pleas Court. It would be unduly burdensome to require parties to have a record made in every one of the great number of proceedings that daily take place in the Probate Court.

This section provides an optional method of procedure which may be pursued by a litigant. With the wisdom of such provision we are not concerned. The duty of courts in such cases is “ jus dicere, et non jus dare” — to interpret the law rather than to make the law.

We conclude, therefore, that the Court of Common Pleas was in error in granting- the appellees ’ motion to dismiss the appeal in this case. The judgment of the Common Pleas Court' is, therefore, reversed, and the cause remanded for further proceedings according to law.

Judgment reversed.

Skeel, J., concurs.

Morgan, J.,

dissenting. No bill of exceptions was filed in this case. After the case had been called for trial in the Common Pleas Court, the defendant moved the court to dismiss the case for the reason that “this court has no jurisdiction to entertain the same. ’ ’ The judgment of the trial court is as follows:

This cause came on for hearing upon the appeal of the appellant to this court from the decision rendered by the Probate Court of Cuyahoga county Ohio, upon questions of law and fact. Upon motion made by the appellees that said appeal be dismissed for the reason that this court has no jurisdiction to entertain the same, said motion is well taken and the appeal of the appellant upon questions of law and fact to this court from the decision rendered by the Probate Court of Cuyahoga county dismissing the application of Frank P. Schneider for appointment as administrator de bonis non is hereby dismissed and judgment entered for the appellees herein.”

The above judgment is a finding that the Common Pleas Court had no jurisdiction to entertain the case. ■In the absence of a bill of exceptions, that finding cannot be challenged, and we must conclude that the Common Pleas Court had before it facts which justified the finding. '■


source: Caselaw Access Project

author: Jackson, P. J.

license: Public Domain

text:
    Rospert, Appellee, v. Old Fort Mills, Inc., Appellant.
    (No. 993
    Decided June 3, 1947.)

      Mr. Kenneth P. Foco and Messrs. Guthery> Harmon & Gonhle, for appellee.

      Messrs. Moore i& Myers and Messrs'. Donithen, Michel (& Davis, for appellant.
   Jackson, P. J.

This cause is here on appeal on questions of law.

From the record, the following are the facts: On the 15th day of June 1942, an employee of the plaintiff, appellee herein, drove a tractor-trailer outfit, loaded with soy beans, to the plant of the defendant, appellant herein, located at Marion, Ohio. After the. tractor-trailer outfit was placed on the unloading pit of the defendant, the front of the trailer loaded with soy beans was slightly raised, and the tractor itself, in charge of the employee of the plaintiff, was moved some distance from the unloading pit. Thereupon the defendant, through its employees; attempted to unload the trailer containing the soy beans, by means of a hoist, lifting one end of the trailer to such a height that approximately a 45-degree angle would obtain between the front and rear end, and in that way by tilting the trailer the soy beans would roll down the incline into the pit and in that manner the unloading would have been accomplished. However, at some period during the lifting of the front end of the trailer with the hoist, something gave way before the beans were unloaded, and the front end of the trailer dropped from its elevated position. The beans were not unloaded but were later shoveled from the bed of the trailer. The property damage upon which the suit is based occurred to the trailer when it dropped.

The petition of the plaintiff recites: “That the defendant, acting through its agents and' employees while in the.course of their employment, were careless and negligent in the handling of such trailer in the following ways, to wit: Said defendant failed to properly attach and affix the fasteners or sling, to such trailer, in a safe manner; said defendant at all times, well knowing the weight of such trailer and the load contained therein, used a power hoist with the tackle necessary to raise it, which said power hoist and tackle were insufficient to support the weight of said trailer and load, all of which was the direct and proximate cause of the damage to the plaintiff’s trailer.”

The plaintiff called.as a witness the driver of the truck who was not close enough to the scene of the accident to be able to describe what caused the trailer to drop, but did testify that the trailer dropped while he was standing behind the trailer, and later the beans were required to be shoveled from the trailer. No further testimony was offered by either the plaintiff' or the defendant in explanation of the cause of the dropping of the trailer.

In consideration of the evidence that the manipulation of the hoisting of the trailer was entirely under the control of the employees of the defendant, the court charged in effect that the doctrine of res ipsa loquitur applied.

We are of the opiniqn that the charge is correct, and all assignments of error pertaining to the charge of the court are overruled.

Our attention has been invited to the case of Shadwick v. Mills, 79 Ohio App., 143, 69 N. E. (2d), 197, wherein it is stated that “the rule of res ipsa loquitur does not apply where the plaintiff in his-petition does not rely on such rule and charges the defendant with specific acts of negligence. ’ ’

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.

- However, in the instant case we are of the opinion that the plaintiff presented all the evidence reasonably within his power to explain the cause of the injury.

Where the plaintiff alleges negligence generally as to the cause of his injury he can rely on the maxim res ipsa loquitur to establish such negligence.

The doctrine does not dispense with the rule that the party who alleges negligence must prove it. It merely determines the mode of proving it. Therefore, It is proper to permit the jury to infer negligence from the occurrence of an accident but it does not compel such an inference; that is, the accident furnished circumstantial evidence which is sufficient to go before the jury, and is to be weighed but not necessarily to be accepted as sufficient. The necessary results of this view call for an explanation or a rebuttal by the defendant but do not require it, and if the explanation or rebuttal is not made the defendant takes the risk since the jury might draw an inference of negligence from the facts and circumstances of the accident.

It would seem clear that the permissible inference is always evidence and must be weighed as evidence and remains to be considered by the jury since the inference may reasonably be inferred from all the facts presented, but the circumstantial evidence is entitled to consideration only so long as reasonable men might base a conclusion upon it. The underlying reason for the rule of res ipsa loquitur is that the facts of the injury are solely within the knowledge of the defendant and are not accessible to the plaintiff.

“That doctrine [res ipsa loquitur] being a rule of evidence, it is not necessary to be pleaded.” Beeler v. Pouting, 116 Ohio St., 432, 433, 156 N. E., 599. See, also, 29 Ohio Jurisprudence, .617, Negligence, Section 144; 29 Ohio Jurisprudence, 633, Negligence, Section 155.

The above-cited case is quoted with approval in Scovanner v. Toelke, 119 Ohio St., 256, 260, 163 N. E., 493.

The doctrine of res ipsa loquitur is founded on the absence of specific proof of acts or omissions constituting negligence. Welch v. Rollman & Sons Co., 70 Ohio App., 515, 519, 44 N. E. (2d), 726; Weller v. Worstall, 129 Ohio St., 596, 600, 601, 196 N. E., 637; Fink v. New York Central Rd. Co., 144 Ohio St., 1, 56 N. E. (2d), 456.

With reference to the proof of the amount of damage, the plaintiff testified as to the value of the trailer prior to the accident and its value-after the accident, and testified also as to the value of the loss of the use of the trailer between the dates of the accident and the time it was returned to him for use.

It is unquestionably the right of the plaintiff to testify as to the value of his own property, both before and after the accident, and the value of the loss of use, but such testimony is not conclusive and is subject to various tests as to the credibility to be attached to it. One of the tests properly available to the defense is a cross-examination of the witness as to the actual cost of the repairs and what repairs, in detail, were made.

Needless and additional repairs might be made which are in no wise connected with the repairs required by reason of the damage caused upon which the litigation is founded. Otherwise, exorbitant and excessive costs of repairs, remodelling or replacement •could be ascertained only with difficulty.

By the witness Wayne Shawaker and the deposition of Glen Scott an attempt was made to introduce an estimate made by Glen Scott as to the. cost of repairs required for the damaged trailer. This estimate was excluded by the court.

The ruling of the court in respect to the admissibility of the testimony of Wayne Shawaker on that subject was correct, as the evidence sought to be introduced was hearsay; and the ruling of the court as to the admissibility of the testimony of Scott upon that subject was also correct, as the, proffered testimony of Scott showed that such estimate did not reflect the cost of such repairs and would only tend to confuse the jury.

The plaintiff did not in any part of his testimony testify as to the cost of repairs. The defendant had the right to examine plaintiff as to the various items of damages to the trailer through the alleged negligence of the defendant, and as to whether the trailer could be restored, through repairs, to the condition it was in immediately prior to the time the damages were sustained, and if such restoration was possible, the cost of such restoration and the time reasonably required for the making of such repairs, as a means of testing the plaintiff’s estimates of the value of the trailer immediately preceding and immediately following the. damages thereto, and of the loss of use of the trailer resulting from such damages. Instead of doing this, the defendant, by cross-examination of plaintiff, for the announced purpose of reflecting on the damages to the trailer, endeavored to show that in addition to having the trailer repaired, the plaintiff had caused some changes to be made therein, amounting to a remodelling of the trailer. As the plaintiff had not testified as to the amount either required, or the amount expended by him for repairs, and the announced purpose of the evidence was limited, as mentioned, the court properly excluded the evidence sought to be brought out on cross-examination.

Defendant further inquired of plaintiff on cross-examination whether plaintiff had gotten an estimate from the Fruehauf people (manufacturers of the trail-" er) for repairs. The court sustained an objection to this question. The evidence conclusively showed that such repairs as were made were made by the Fruehauf people and the defendant conld have properly inquired of the plaintiff the nature and extent of the necessary repairs and the cost thereof, but failed to do so. Under these circumstances it was immaterial whether plaintiff had secured an estimate of cost of repairs, as the actual cost, rather than an estimate, vgould be determinative of the cost. The court did not err in sustaining the objection.

The court erred ip its refusal to allow the defendant to cross-examine the plaintiff as to the statement made by plaintiff to his attorney, on the value of the use of the trailer during the time it was being repaired, but as the verdict'in this case, covering both the damages to the trailer and the loss of the use of the trailer, is only $750, which is fully supported by the evidence, regardless’ of whether the used trailer was worth $5 per day as testified by plaintiff, or $2.75 per day as plaintiff is. claimed to have told his attorney, it would appear that this error did not affect the amount of. the verdict and, therefore, is not prejudicial. *

When the plaintiff offered himself as a witness as to the' value of the use, then any statement he made to his attorney as to-the value of the use is not protected by Section 11494, General Code. Spitzer v. Stillings, 109 Ohio St., 297, 301, 142 N. E., 365; Foley v. Poschke, 137 Ohio St., 593, 594, 31 N. E. (2d), 845.

Therefore, assignments of error Nos. 1, 2, 3; 4, 5, 6, 7 and 8 are overruled.

Our attention has not been directed to any errors in connection with assignment of error No. 9 and it is, therefore, overruled.

Under the provisions of Section 11364, General Code, it is the duty of this court to certify on its journal whether in its opinion substantial justice has been done to the party complaining, as shown by the record of the proceedings of the judgment under review. McClintock v. Sweitzer, 138 Ohio St., 324, 34 N. E. (2d), 781; Nicholl, Exr., v. Bergner, 76 Ohio App., 245, 249, 63 N. E. (2d), 828.

In consideration of the fact that the plaintiff suffered considerable damage to his trailer and was deprived of its use for 158 days, we are unable to certify that the defendant has not received substantial justice. *

Judgment affirmed.

Guernsey and Middleton, JJ., concur.

(Decided August 6, 1947.)

On Motion to certify.

By the Court. In the case of Whipp v. Industrial Commission, 136 Ohio St., 531, on page 533, 27 N. E. (2d), 141, the Supreme Court lays down this rule: “But after this court has established the rule, any such conflict with a decision of another Court of Appeals is of no consequence.” '

It appears that the judgment of this appellate court is in conflict with the judgment in the case of Shadwick v. Hills, 79 Ohio App., 143, 69 N. E. (2d), 197, but the Supreme Court established the principle of law in which the conflict apparently appears, in the cases of Beeler v. Ponting, 116 Ohio St., 432, 433, 156 N. E., 599; Fink v. New York Central Rd. Co., 144 Ohio St., 1, 5, 6, 56 N. E. (2d), 456; Winslow v. Ohio Bus Line Co., 148 Ohio St., 101, 73 N. E. (2d), 504.

Motion overruled.

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


author: By the Court.

text:
    Stough, Appellant, v. Industrial Commission of Ohio, Appellee.

      (No. 3925
    Decided December 4, 1946.)

      Mr. Thomas Joseph, for appellant. •

      Mr. Hugh 8. Jenkins, attorney general, Mr. G.' G. L. Yearick and Mr. Albertus B. Conn, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, which directed a verdict for the defendant.

The case was filed as an appeal from an order of the Industrial Commission of Ohio disallowing plaintiff’s application for death benefits as the result of the death of Carl Stough, deceased, the husband of the plaintiff.

At the first trial, a verdict was rendered for the plaintiff and judgment entered thereon. The defendant appealed to this court, which reversed the judgment of the trial court for error in the admission of certain testimony. The judgment of the Court of Appeals was affirmed by the Supreme Court and the cause remanded.

The matter was tried to a jury the second time and at the close of the case the court directed a verdict for the defendant. This appeal is taken to reverse the judgment on that verdict.

For an extended recital of the facts and the cause for reversal of the former judgment, reference is made to the ópinion of this court in 41 Ohio Law Abs., 400, 58 N. E. (2d), 489, and also the opinion of the Supreme Court in 142 Ohio St., 446, 52 N. E. (2d), 992.

The plaintiff, appellant herein, assigns as error:

1. The court erred in the exclusion of evidence offered by the plaintiff.

2. The court erred in sustaining defendant’s motion to strike testimony.

3. The court erred in sustaining defendant’s motion for directed verdict.

4. That the verdict of the jury and judgment of the court are contrary to law.

5. Other errors apparent on the face of the record.

It must be observed that the plaintiff bases her right to receive compensation for an injury alleged to have been sustained by her husband in November 1936, previous to the amendment of Section 1465-68, General Code, which now defines “injury.” Section 35, Article II of the Constitution of Ohio, provides that compensation may be received for injuries or death occasioned in the course of employment.

Plaintiff claims that the decedent while in the course of his employment was assigned to perform certain work which was not his usual duties, that while so engaged he was overcome by gas fumes, that as a result he suffered an “injury” which contributed to Ms death, and that compensation should be awarded. On the trial of the case a fellow workman of the decedent was asked the question, “Did he say anytMng to you at the time he left?,” The trial court sustained the objection to this question and the following answer was proffered: “He said he had a headache ; we all had headaches. ’ ’ The evidence shows that decedent left his work early that day and after he returned to his home he vomited numerous times and was unable to return to his place of employment for a period of two weeks.

Did the trial court commit prejudicial error in excluding that testimony? The burden was on the plaintiff to show that the decedent suffered á compensable “injury.” The inhalation of gas fumes was not incidental to the decedent’s regular employment. On the day in question he was assigned to other duties and was subjected to the inhalation of gas fumes.

' Thus, we find inhalation of the gas was accidental and unforeseen. If the decedent suffered disability therefrom which contributed to his subsequent death, compensation should be awarded. Industrial Commission v. Roth, 98 Ohio St., 34, 120 N. E., 172, 6 A. L. R., 1463; Industrial Commission v. Burckard, 112 Ohio St., 372, 147 N. E., 81; Industrial Commission v. Palmer, 126 Ohio St., 251, 185 N. E., 66; Industrial Commission v. Bartholome, 128 Ohio St., 13, 190 N. E., 193.

In the Palmer case the court, on page 255, said:

“If the presence of the gas is shown, one circumstance of probative value to indicate its presence 'in unusual quantity is the effect upon the person subjected thereto.”

In the instant case, the statement made by the decedent as he left his employment was admissible as part of the res gestae. It is a circumstance which tends to show the effect the inhalation of the gas fumes had on the decedent, and that decedent suffered an injury during the course of his employment. Boze v. Industrial Commission, 32 Ohio Law Abs., 238. The law is stated in an annotation to the case of Lowery v. Jones, 219 Ala., 201, 121 So., 704, in 64 A. L. R., 557, as follows:

“It is a well settled general rule that, where the bodily or mental feelings of a person are to be proved, the usual and natural expressions and exclamations of such person which are the spontaneous manifestations of pain, and naturally flow from the pain being suffered by him at the time, are competent and original evidence, which may be testified to by any party in whose presence they are uttered.”

The evidence shows that decedent had been suffering from an organic heart lesion. There was some expert testimony to the effect that inhalation of gas fumes would aggravate a heart condition. In the death certificate, it is stated that death was caused by ‘ ‘ myocarditis, decompensation and enlarged heart.”

We are of the opinion that the rejection of such evidence constituted prejudicial error. That evidence and other evidence of probative value, from which an inference could have been drawn by the jury that the decedent suffered compensable injury which contributed to and hastened his death, should have been submitted to the jury. In view of the record, the trial court committed prejudicial error in directing a verdict for the defendant.

"The judgment is reversed and the cause remanded.

Judgment reversed.

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


author: Wiseman, P. J.

text:
    Craft, Exrx., et al., Appellees, v. Shroyer et al., Appellants.

      (No. 1928
    Decided July 25, 1947.)

      Messrs. Routsohn & Kevin and Mr. Miles 8. Kuhns, for appellees. 1

      Mr. Baird Broonihall and Messrs. Iddings, Jeffrey, Wcisman & Rogers, for appellants.
   Wiseman, P. J.

This is an appeal on questions, of law from a judgment of the Common Pleas Court of Montgomery county in an action to construe the will of ’Susan A. Shroyer, deceased, instituted by Sophie Craft; as executrix, and the three trustees named in the will, in which action the heirs at law of the testatrix are named parties defendant. The will provides that the entire estate of the testatrix be used to establish a home for full orphans of the United Lutheran Church in America of Miami County, Ohio, at her old home in such county, east of Tipp City.

The plaintiffs, appellees herein, alleged in their amended petition that “it is impracticable and inex'-• pedient to execute and carry out the specific terms of said trust as set forth in said will, and it is, therefore, necessary to invoke the doctrine of cy pres in order that the corpus of the trust estate may be applied to the promotion of or merged with the assets of or completely paid over to” the Oesterlen Home for Children of the United Lutheran Church in America, located in Clark county, Ohio, near the city of Springfield.

The defendants, appellants herein, in their answer “admit that it is impracticable and inexpedient to execute and carry out the specific terms of said trust, ’ ’ and deny the right of the • plaintiffs .to have the doctrine of cy pres invoked for the reason “that said will does not create a general charitable trust, but that the devise and bequest contained therein is limited specifically and definitely to the use' of the home of said testatrix as a strictly private home under the definite, specific, narrow, and exclusive terms and conditions provided in said will; that, therefore, said devise and bequest and trust have lapsed and are void and have no effect; and that said property of the testatrix descends as intestate property to the defendants as heirs at law and next of kin of said testatrix. ’ ’

On the issues joined, the trial court took testimony on the impracticability and inexpediency, of the execution of the trust according' to its terms. Evidence was also admitted relative to the organization, administration, character and location of the Oesterlen Home; that such home is supported by the United Lutheran Church and admits children from the states of Ohio, Michigan, Indiana, Kentucky, West Virginia and Tennessee; and that under its regulations children may be admitted who are not orphans or who are not affiliated with the United Lutheran Church. Testimony was also admitted showing that thé testatrix, during her lifetime,- taught children in the lower grades of the public schools of the community; that she was fond of children; that she was a member of the United Lutheran Church; and that family differences had arisen between the testatrix and certain members of her immediate family which caused an estrangement.

The trial court found that the will created a charitable trust; that it is impossible, impracticable and inexpedient to carry out the terms of the trust; that the purposes" of the trust can be served by the Oesteríen Home at Springfield, Ohio; that the doctrine of cy pres should be invoked; and that the fund in the hands of the executrix, after the administration of the estate is concluded, should be turned over to the Oesterlen Home of Springfield, Ohio, to be used in carrying on the work- at that home.

The defendants assign as error that the judgment is against the manifest weight of the evidence and is. not sustained by sufficient evidence; that the judgment is contrary to law; and that the court erred in the admission and rejection of evidence. Othér errors were assigned as apparent, on the face of the record.

. The doctrine of cy pres operates in the field of charitable trusts. If-the court finds that the execution of a charitable trust is inexpedient or impracticable, a court of equity will execute it, as nearly as it can, according to the original plan.

In 7 Ohio Jurisprudence, 175, Section 38, it is stated:

“ ‘The general principle upon which the court acts is that, if the testator has manifested a general intention to give to charity, the failure of the particular mode in which the charity is to be executed shall not destroy the charity; but, if the substantial intention is charity, the law will substitute another mode of de'voting the. property to charitable purposes, though the formal intention as to the mode cannot be accomplished.’ ” (Emphasis ours.) See, also, 3 Scott on Trusts, 2098, Section 399; 2 Restatement of Trusts, 1208, Section 399; 14 Corpus Juris Secundum, 514, Section 52.

It is conceded that the will created a charitable trust. In the pleadings it was admitted that it would be impracticable and inexpedient to carry out the terms of the trust. Thus, the sole remaining issue is whether the testatrix manifested a general charitable intent. This is a legal rather than a factual matter. While there was evidence taken qn several matters, we fail to understand how the judgment of the trial court can be attacked on the weight of the evidence as the issue drawn was legal and not factual.

Extrinsic evidence was admitted, to which the defendants interposed an objection. The trial court reserved its ruling. The record does not disclose a ruling at any stage of the case. Evidence introduced over objection is regarded as admitted and considered by the court, unless the record affirmatively shows the court sustained the objection.

It was expressly stated that this evidence was not introduced to explain an 'ambiguity, but rather to show the intention of the testatrix. The general rule is well established that where the language of the will is plain and unambiguous extrinsic evidence is inadr missible to show an intention not expressed in the will. Townsend’s Exrs. v. Townsend, 25 Ohio St., 477; Sommers v. Doersam, 115 Ohio St., 139, 152 N. E., 387; Steinbrenner v. Dreher, 140 Ohio St., 305, 43 N. E. (2d), 283; 41 Ohio Jurisprudence, 610, Section 478; 94 A. L. R., 39 (note d.); Ann. Cas. 1915B, 16. However, in some jurisdictions the» courts have followed the rule that, where the court is in doubt or is uncertain as to the true intention of the testator as expressed by the language of the will, evidence as to conditions and surrounding circumstances may be admitted. This rule is best stated/in 41 Ohio Jurisprudence, 630, Section 498, as follows:

“It may be stated that generally evidence may be received as to any facts known to the testator which. may reasonably be supposed to have influenced. him in the disposition of his property, and as to all the surrounding circumstances at the time of making the will. In other words, the courts do not commonly reject any evidence which in any fair view may be presumed to have a bearing upon the construction of the will.”

The admission of such evidence does not do. violence to the general rule. In the final analysis the court must gather the intention of the testator from the words of the will in light of the conditions and circumstances surrounding the testator at the time of the making of the will. A fine statement as to the extent to which such evidence may' be considered, and the purpose of its introduction, is found in Ann. Cas. 1915B, 11, as follows:

“It is self-evident that the words of a document are never anything but indices to extrinsic things, so that all the circumstances must be considered which go to make clear the sense of the words, — that is, their association with things. Therefore, with reference to every dispute respecting which it can be shown that a knowledge of extrinsic facts cap aid in the right interpretation of the will, parol evidence of the facts and circumstances surrounding and concerning the testator, his property, and the claimants of his bounty at the time of, or prior to the time of, making the will, is admissible in evidence, not to add to, vary or contradict the meaning of the will, but to enable the court to place itself in the situation of the testator and see things as he saw them, and to apply his language as he understood and intended it.”

In Zanesville Canal & Mfg. Co. v. City of Zanesville, 20 Ohio, 483, 490, the court said:

“If we travel out of the will, however, and take a survey of the position that the testator occupied in respect to the inhabitants of Zanesville, at the time he conceived the generous purpose of making this bequest, every doubt, it seems to us, must be put at rest. This the law permits us to do. ’ ’

In Lessee of Worman v. Teagarden, Jr., 2 Ohio St., 380, it was held' as follows:

“In construing a will, grammatical accuracy need not be observed, and it should be read with a view to the situation and circumstances of the testator, in reference -to the subjects of his dispositions, and the objects.of his bounty.

“With these collateral aids to a correct interpretation, the will must speak for itself, and the'intention of the testator be gathered from what appears on its face. ’ ’

In Bowen, Admr., v. Kollar, 18 Ohio App., 10, 15, the court held:

“It is proper to look not only to the language of the will, but to the facts surrounding the testator, with which he was familiar at the time of executing the will.”

In Allen, Admr., v. City of Bellefontaine, 47 Ohio App., 359, 191 N. E., 896, the court held:

“In determining testatrix’s intention, conditions surrounding testatrix at time of execution of will, as well as phrasing of will itself, may be considered.” See, also, Fitzgerald v. Bell, 34 Ohio Law Abs., 631, 634, 39 N. E. (2d), 186.

However, in the instant case, evidence was admitted to show family differences and discord. This evidence did not reach and had no probative effect on the sole issue in the case, to wit, did the testatrix manifest a general charitable intent. On this issue such evidence was wholly irrelevant and immaterial. It should have been excluded on that ground.' We are of the opinion that, while this evidence was inadmissible, it was not prejudicial and in no way controlled the judgment of the trial court in its application of the doctrine of cy pres. We find no prejudicial error in regard to the admission or the exclusion of evidence.

The defendants contend that the judgment of the trial court was contrary to law. It is pointed out that the trial cburt did not find that the testatrix manifested a general charitable intent. The judgment of. the court was silent with respect to a finding on such issue. However, the failure of the trial court to make such a finding’ would not require a reversal if the judgment in every other respect was proper.

We come to a consideration of the principal question: Did the testatrix manifest a general eharitable intent?

The will of the testatrix is as follows:

“I, Susan A. Shroyer also known as Susie Shroyer of Bethel township, Miami county, Ohio do give and bequeath all my real and personal property including any money which I may have at my death to be a home for full orphans of the United Lutheran Church of Miami county, Ohio. By full orphans is meant children whose father and mother are dead under the age of 18 years and who also have no stepfather or stepmother.

“Item II. To administer the above property I hereby establish a trusteeship consisting of the minister of the First United Lutheran Church of . Troy, Ohio, and the minister of the United Lutheran Church of Tipp City, Ohio, and the minister of the United Lutheran Church of Brandt, Ohio. I hereby bequeath to the above named trustees the above property in trust for the purposes mentioned.

“Item III. These trustees are to select the superintendent of the home who must be a member of the United Lutheran Church between the ages of 30 and 50 years of age. His wife is to be matron of the home. This is to be done as soon after my death as possible.

“Item IV. There are to be no signs or inscriptions of any kind placed on the buildings or on the grounds. The home is to be maintained as a strictly private home at the site of my present home east pf Tipp City, Ohio. The home is to be kept in good repair in every way at all times. Furnishings are to be kept intact and replaced when needed. The children are to be kept in the home until they reach the age of eighteen years. Each article of my possessions is to be kept on my present property.”

From the will the court must determine whether the 'testatrix manifested a general intention to give to charity or expressed an intention which was restrictive and exclusive and limited to a specific purpose. A line of demarkation between the two classes of cases is not well defined. A research of authorities does not disclose any particular tests which have been applied. 2 Bogert on Trusts, 1307 to 1312, Section 436. In the application of the doctrine of cy pres to a proper case, the court is permitted to change the charitable purpose and to enlarge the class of beneficiaries, or even to designate an entirely new class of beneficiaries. 3 Scott on. Trusts, 2098, 2099, 2104, Sections. 399 and 399.2. In such case, if the court finds that the settlor of a trust expressed a general intention to give to charity, the court will execute the purpose of the settlor as nearly as it can according to the original plan. The theory underlying the application of the doctrine of cy pres is that the court is doing and fulfilling the intent of the testator. Consequently, in the case at bar, before the court can find that the testatrix manifested a general charitable intent, it must find that the charitable purpose expressed was general and broad enough in its scope to embrace beneficiaries not designated in the trust instrument; that the desire to make a charitable gift was primary and the gift would have been made in all events; and that the particular class benefited was secondary and incidental to the general charitable purpose. t

In 4 Pomeroy’s Equity Jurisprudence (5 Ed.), 43, Section 1027, it is stated that “where the donor has not expressed his charitable intention generally, but only providing for one specific particular object, and this object cannot be carried out,” the doctrine will not be invoked. See 2 Bogert on Trusts, 1308, Section 436.

In the instant case, it being impracticable and inexpedient to do that which the testatrix had in mind, can we discover a purpose to do something else of a similar character? We think not. There is nothing to indicate that she intended to make provision for the care of orphan children generally. Provision for the care of orphan children generally would seem to include a charity much broader than anything in her' contemplation. It appears that the plan and scheme of administration of the trust is such an essential part of the gift that one cannot distinguish any general purpose of charity. We are obliged to hold that the particular mode of doing a charitable act was the only one the testatrix intended or at all contemplated.

The dominant purpose of the testatrix in the creation of the trust is expressed in the first item of her will in which she provided for the establishment of a home for “full orphans of the United Lutheran Church of Miami County, Ohio.” We cannot gather a general charitable intent from that language. We must not confuse the dominant purpose expressed with a general charitable intent. In the first item of her will, in which testatrix expresses a trust purpose, she has imposed three definite restrictions: First, ’ the

trust is restricted for the benefit of “full orphans” who are defined to be “children whose father .and mother are dead, under the age of 18 years and who also have no stepfather or stepmother”; second, the orphans benefited must be members of, or connected with, the United Lutheran Church; and third, the beneficiaries must reside in Miami county, Ohio. • In our opinion, item I, which embraces the dominant purpose for the creation of the trust, reveals a narrow, restricted and specific charitable intent rather than a general charitable intent. However, if there is any doubt as to whether the testatrix had a general charitable intent as revealed in item I, all donbt is removed when we consider the other items of the will. The will must be construed from its four corners. The lack of a general charitable intent is reflected and emphasized in the other items of the will wherein the testatrix very definitely places restrictions on the manner in which the trust is to be administered. The testatrix very carefully selects three ministers of three United Lutheran Churches to act as trustees and provides that the property is bequeathed to them* in trust “for the purposes mentioned.” The fact that she appointed three ministers of the United Lutheran Church as trustees shows her intention to safeguard the administration of the trust for the particular and specific purpose designated. Another restriction which indicates that the intention of the testatrix was narrow and specific is found in item III, in which she prescribes the qualifications of the superintendent of the home. He is required to be a “member of the United Lutheran Church between the ages of 30 and 50 years of age.” Here again the testatrix .shows that she has no general charitable intent. Furthermore, as if to remove all doubt about her intention, the testatrix, in item IV, provides that “the home is to be maintained as a strictly private home” (Emphasis ours) and that.“there are to be no signs or inscriptions of any kind placed on the buildings or on the grounds.” She further provides that the home to be established shall be “at the site of my present home east of Tipp City, Ohio.” From that language we do not gather a general charitable intent, but rather an intent to provide for the establishment of a strictly private home, limited in its capacity, and different in character from the traditional orphans’ home. In support of this conclusion, we note other provisions in item IV, in which the testatrix provides that “furnishings are to be kept intact and replaced when needed,” and that “each article of my possessions is to be kept on my present property.” Furthermore, in support of onr conclusion that the intention of the testatrix was narrow and specific rather than general, we point out that she restricted the class of beneficiaries to a point where few children could qualify over a.»period of years. In view of the limited capacity of the home which she sought to establish and the narrow, restricted and specific charitable purpose expressed, we can understand why she restricted the class of beneficiaries as she did.

It will serve no useful purpose to discuss at length the numerous cases cited in which the cy pres doctrine has been invoked. There are only a few reported cases in Ohio in which the question of a general charitable intent was the determinative issue. In Bowen, Admr., v. Kollar, supra, wherein a bequest was left to the “Old Folks Home for men in the city of Kansas City, Missouri, ’ ’ the court, on page 15, held:

“It is apparent that he did not intend that any of his property should go for the maintenance of any persons except old men, and it does not appear that any of the charities which are making claim for this fund have any provision for separation of the funds which they control, so that a portion has been or may be used for the benefit of women exclusively, and another portion for the benefit of men, exclusively.”

In Ward v. Worthington, 28 Ohio App., 325, 162 N. E., 714, where the testatrix gave her residence property to a church to be used as a parsonage for the church, and provided that the portraits of her husband’s mother and of the daughter of testatrix and her husband, and a clock should remain in a proper place in the residence, the court, on page 334, said:

“We do not find in this will any general charitable intent. The lack of such intent is emphasized by the specific provisions relative to-the family portraits.”

In the case at bar, the testatrix provided that her furnishings and each article of her possession should be kept intact on the property.

In Allen, Admr., v. City of Bellefontaine, supra, wherein the testatrix gave her home to be used by physicians as a meeting place, for research, and as a private lying-in hospital, and at the time of the execution of her will there was in existence a local public hospital, the court, on page 371, said:

“As the Mary Rutan Hospital was in existence at the time of the execution of the will, it would appear that it was the intention of the testatrix not to adopt that hospital as the beneficiary of her bounty, but to create an institution separate and distinct from and furnishing services of a different class and character from those furnished by such hospital.”

In adopting that reasoning and applying it to the facts in the instant case, we hold that, since the testatrix was a devoted member of the United Lutheran Church, and since the Oesterlen Home, which is located within a few miles of her home, was in existence at the time of the,, execution of the will and its work and needs were widely publicized among the members of the church, it would appear that it was the intention of the testatrix- not to adopt that home as the beneficiary of her bounty, but to create an institution separate and distinct from, and furnishing services of a different class and character than those furnished by, such home.

In Heinlein v. Elyria Savings & Trust Co., Exr. and Trustee, 75 Ohio App., 353, 62 N. E. (2d), 284, where the testator in his will provided for the creation and maintenance of two small parks upon two designated plots of ground within the corporate limits of Elyria, 'and where'the city of Elyria sought the application of the- doctrine of cy pres and an order of the court to use the funds for the care and maintenance of an old and established park within the corporate limits, the court refused to invoke the doctrine of cy pres and re; quired the creation of the parks under the terms of the will. The court, on page 362, said:

“Suffice it to say, however, that the record before us does not show that the testator, in the giving away of his property, had a general charitable or benevolent intent. A reading of the will exhibits a clear and unqualified expressed intention to restrict his gift; and the use of particular' property for a particular, specified purpose. It was no part of his plan, in the event of the failure of the charity, which he so meticulously arranged, that that part of his estate should be used in any other manner. The purpose and intent of the testator, we believe, is not left to inference or doubt. His. choice of location and improvement was a vital one, and he had no secondary or broader plan.”

Our search has revealed no language which can be applied with more force to the facts in'the instant case than the language used by Judge Doyle in the Heinlein case. An examination of the authorities and statements of recognized writers on charitable trusts reveals that the courts are more disposed to find a general charitable intention where the trust purpose benefits the public at large. In the case just cited the establishment of parks was for the public benefit, and' yet the court found, from the language used, that there was no general charitable or benevolent intent expressed.

A consideration of a few cases in other states shows that courts of our state are in accord with the ruling which prevails in other jurisdictions. In Penick v. Thom’s Trustee, 90 Ky., 665, 14 S. W., 830, where a legacy was left to a trustee for the use and benefit of “the Orphans’ Home of the Episcopal Church of the Ascension in Frankfort,” the court, on page 671, said:

“It was not the intention .of the testator to make any other disposition of this fund than that contemplated by the devise. * * *

“That this was not a devise to orphans generally will be admitted, but that it was a devise to orphans connected with or under the care and patronage of the Episcopal Church in Frankfort, is manifest. He connects the home by the devise with his church, calling it ‘The Orphans’ Home of the Episcopal Church of the Ascension in Frankfort places it under the control of the rector of that church with the power in the latter to appoint his successor.”

A similar provision is found in the will of our testatrix, in which she provides that the trust shall be administered by three ministers of three congregations of the United Lutheran Church, of which she is a member.

In McBride v. Murphy, 14 Del. Ch., 242, 124 A., 798, .where the testator gave his property to a charitable corporation to be used “for the support and maintenance of the orphan girls under its care and charge,” and such corporation ceased to exist before the testator’s death and an effort was made to give the fund to another similar institution, the court, on page 250, said:

“In the first place there is nothing in the will which shows that the class of persons intended by the testator' to be the objects of his bounty was 'female Catholic orphans of the Diocese of Wilmington,’ as stated by the solicitor for the defendants. It may have been and doubtless was true that the corporation named drew from this class in selecting the particular orphans whom it would maintain and support. It is stated that the testator knew this. If he did, he nevertheless chose language which confined his bounty to those only of the class who happened to be in the care and charge of the specifically named corporation. It is difficult to see how an interest could at any time have been asserted on behalf of any orphan children who were not at the time in the care and charge of this • institution. * * *

And on page 253, the court stated:

“It cannot make any difference whether the gift was to the charitable institution absolutely, or upon trust to use it for the benefit of the particular class of individuals to whom it administers its aid. In neither case can a general charitable intent be inferred. ’ ’

In Chicago Daily News Fresh Air Fund v. Kerner Atty. Genl., 305 Ill. App., 237, 27 N. E. (2d), 310, where the testator bequeathed a part of his residuary estate to a specific charity by name, and the charity renounced the bequest, the court held that the cy pres doctrine was not applicable to give the property to another charity of a similar character. The court, on page 242, approved a former opinion which held that “a general charitable intent cannot be deduced from the sole fact that the organization named in the will is engaged in a particular charitable work.” The court, on page 242, in approving the former opinion (Quimby v. Quimby, 175 Ill. App., 367), stated:

“We sustained this, saying that a general charitable intent to benefit needy boys and girls, generally, cannot be deduced from the sole fact that the Chicago Waif’s Mission and Training School was engaged m charitable work for needy boys and girls. We there said (p. 373) that the doctrine of cy pres should be applied ‘if the bequest is to a cause or for a purpose or to aid and further a plan or scheme of public benefit, ’ for then there .is evidence of a general charitable intent. But where the gift is not to any cause, plan or scheme of charity, but to a specific or particular organization, no general charitable intent by the testatrix is indicated and the doctrine of cy pres does not apply.”

In Waterbury Trust Co., Trustee, v. Porter, 131 Conn., 206, 38 A. (2d), 598, where the testator left the residue of his estate to trustees to establish a school or college to be operated according to a plan laid down in the will, and where the fund was not adequate to. carry out this purpose and the trustees requested that the fund be used for the purpose of erecting a trade- school building, the court held that there was no general charitable intent expressed. The court in that case had under consideration the application of the doctrine of “approximation,” which was considered in the same manner as the doctrine of cy pres. The court, on page 215, said:

“It may be employed only where, upon the failure of the trust, the court finds in the terms of the will, read in the light of the surrounding circumstances, a general intent to devote the property to a charitable use to which the intent that it go to the particular purpose named is secondary.”

The court, on page 216, said:

“But the restrictions he imposed, including that as to the site of the school upon his ancestral land, are couched in language too strong to be ignored. His will is, in effect, an order to carry out his educational program and none other. Because of the absence of a general charitable intent, the doctrine of approximation is not applicable.”

In Rohlff v. German Old People’s Home, 143 Neb., 636, 10 N. W. (2d), 686, where the testator made a bequest to a home for old people of German descent, to he erected, and which was never built, the court, on page 642, said:

“It is evident to us upon an examination of plaintiff’s petition that the testator made the gift by his will for the purpose of assisting aged people of German extraction in the city of Omaha, by aiding in building and maintaining a home for that purpose. The gift was for.charity, with a narrow trust intent. The provision in the will indicates no general charitablé intent.”

The authorities are legion where the courts, in construing wills containing trust provisions much more general in character than in the will here, have found no general charitable intent. When we consider the trust provisions of the will under consideration, in the light of the authorities on this subject, we are led to conclude that the gift was for charity with a narrow trust intent. We cannot conceive of a will being drafted establishing a trust which could contain more restrictions and a more narrow and specific intent than that found in the will of the testatrix here. In our judgment, the testatrix did not manifest a general charitable intent to aid orphans generally, but rather expressed an intention which was restrictive, exclusive and specific in its purpose. The absence of a general charitable intent precludes the application of the doctrine of cy pres. Heinlein v. Elyria Savings & Trust Co., supra; Bowen, Admr., v. Kollar, supra.

Does the corpus of the trust estate descend as intestate property to the defendants as the only heirs at law of the testatrix? In their petition plaintiffs pray not only for the application of the doctrine of cy pres, but also for general equitable relief. Thus the general equity powers of the court are invoked. It is contended by plaintiffs. that a court of equity may, to a limited extent, permit a modification of the trust in order to prevent a failure of the trust purpose. The court will order a deviation from the terms of the trust if it appears to the court that compliance with the terms of the trust is impossible, illegal, impracticable or inexpedient, or that, owing to circumstances not known to. the settlor and not anticipated by him, compliance would defeat or substantially impair the accomplishment of the purposes of the trust. Findley et al., Trustees, v. City of Conneaut, 145 Ohio St., 480, 486, 62 N. E. (2d), 318; 2 Restatement of Trusts, 1176, Section 381; 3 Scot't on Trusts, 2044 and 2098, Sections 381 and 399. In such cases the court applies the rule or doctrine of deviation. In Findley v. City of Conneaut, supra, the court, on page 486, said:

“In some cases, under proper circumstances, the doctrine of deviation has been applied; in other cases, where the. facts and circumstances warranted, the doctrine of cy pres has been invoked. However, the doctrine of deviation or of cy pres has been applied only in cases where exact compliance with the provisions of the will would defeat or substantially impair the accomplishment of the purposes of the trust. ’ ’

We must distinguish between the application of the doctrine of cy pres and an analogous but not as extensive a principle which permits a deviation from the terms of the trust in matters relative to the administration of the trust. See 2 Restatement of Trusts, 1208, Section 399. The cy pres doctrine is a rule of judicial construction under which the court is required to first find a general charitable intent in the instrument creating the trust; the general charitable purpose of the settlor moves the court to substitute a different charitable purpose for the one which has failed. Cy pres is applied only in the field of charitable trusts, whereas, a court of equity may order a deviation in private as well as charitable trusts. See 2 Bestatement of Trusts, 1176 and' 1208, Séctions 381 and 399. In ordering a deviation a court of equity is merely exercising its general power over the administration of trusts; it is an essential element of equity jurisdiction. In ordering a deviation the court does not touch the question of the purpose or object of the trust, or vary the class of beneficiaries, or divert the fund from the charitable purpose designated. 7 Ohio Jurisprudence, 185, Section 42. The cy pres doctrine requires the exercise of a more extensive power than the ordinary power of a court of equity in ordering deviation. See 3 Scott on Trusts, 2100, Section 399; 2 Bestatement of Trusts, 1208, 1209, ‘Section 399. The. jurisdiction merely to vary the details of the administration of a trust is more liberally exercised, more firmly established and more widely recognized than the cy pres power of the court. 14 Corpus Juris Secundum, 511, Section 50. Thus, we are dealing here with the manner of the administration of the trust as distinguished from the purpose of the trust. As a prerequisite to the exercise of the power to order a deviation the court is not required to first find a general charitable intent.

In 7 Ohio Jurisprudence, 184, Section 42, the rule which permits a court of equity to deviate from the terms of the trust relative to its administration is stated, and in the footnote reference is made to the case of Gearhart v. Richardson, 109 Ohio St., 418, 142 N. E., 890, where the court, on page 435, says:

“We think the rule to be well established in this country, in construing charitable trusts, that if the founder thereof describes in the instrument by which he creates the charitable trust the general nature thereof and names the class of beneficiaries, he may leave the details of its administration to. be settled by the trustees, under the ° guidance of a court of equity (In re Upham Estate, 127 Cal., 90, 59 Pac., 351), and that where exact conformity to the plan of the person who has provided by his will for the charitable trust cannot be carried out in exact detail such object will be attained and duty performed with as close approximation to the original plan as is reasonably practicable, provided the same is in conformity and consistent with the charitable purposes named by the founder; that at least, a court of equity will not permit such charitable trust to fail because pf some slight deviation or change from the original plan, if the general purpose named by the creator of the trust is still attained,.” (Emphasis ours.)

In that case the court, on page 434, stated the issue presented: “All must concede the clearness of the charitable purpose of the testator, but the difference arises over the trust’s administration.” (Emphasis ours.)

The syllabus in that case holds that the trust would be enforced regardless of “a small change incident to the method of administration, which does not alter the purpose or object of the trust, nor vary the class of beneficiaries, nor divert the fund from the charitable purposes named by the donor.” See, also, McIntire’s Administrators v. City of Zanesville, 17 Ohio St., 352; Carr v. Trustees of Lane Seminary, 21 Ohio Law Abs., 107, 114.

In the instant case the testatrix, in the first paragraph of her will, manifested very clearly her intention to create a charitable trust, the beneficiaries of which should be “full orphans of the. Uni ted Lutheran Church of..Miami County, Ohio.” Charitable trusts have always been favored in equity, and should be given a liberal construction to carry out the intention of the testator. Zanesville Canal & Mfg. Co. v. City of Zanesville, supra; Landis et al., Exrs., v. Wooden, 1 Ohio St., 160, 164, 59 Am. Dec., 615; Palmer v. Oiler, Exrx., 102 Ohio St., 271, 131 N. E., 362; Gearhart v. Richardson, 109 Ohio St., 418, 142 N. E., 890; Findley ét al., Trustees, v. City of Conneaut, supra; Graham v. Bergin et al., Trustees, 18 Ohio App., 35.

It is admitted that it is impracticable and in'expedient to administer the ti'ust in the manner outlined by - the testatrix and that due to circumstances not known to her, and not anticipated by her, compliance with the terms of the trust would substantially impair the accomplishment of the purposes of the trust. However, it is the duty of the court to maintain this trust if a,t all possible even though the method or'plan of administering the trust must be altered. A court of equity will devise some other reasonable plan for its administration in order to carry out the intention of the testatrix. '

In deviating from the plan or method outlined by the testatrix, the court is not permitted to change the charitable purpose or divert the funds from the charitable purpose designated in the will. 3 Scott on Trusts, 2099, Section 399.

.In the instant case we are of the opinion that a court of equity, in the exercise of a broad discretion in the administration of this trust, may make an order which will not change the original charitable purpose or divert the funds from the charitable purpose designated in the'will. In the éxercise of its discretion the trial court should have made an order: Requiring the trust to be maintained for the benefit of full orphans of the United Lutheran Church of Miarni County, Ohio;_ to require the trustees named in the will to preserve and invest the trust funds and to hold the trust funds for such trust purpose only; to expend such trust funds for the care, maintenance and support of full orphans of the United Lutheran Church of Miami County, Ohio, as defined by the will of the testatrix, during their residence in the Oesterlen Home near Springfield, Ohio, or any other similar institution, or any private home.

In the administration of the trust it may become necessary to sell the home of the testatrix which she intended should be‘used as a private home for such orphans, or other property in the trust. A court of equity, in the exercise of a broad discretion, may authorize the sale of such property, even though the sale is not authorized under the terms of the will. See 3 Scott on Trusts, 2044, Section 381.

In our opinion the judgment of the trial court was contrary to law and is hereby reversed. We find no other error apparent on the face of the record. The court orders this case remanded to the lower court with instructions to make the order which it should have made and in conformity to the ruling and holding of this court.

Judgment reversed and cause remanded.

Miller, J., concurs.

Hornbeck, J., concurs in the judgment.


text:
    The State, ex rel. Clements, v. Babb, Chief of Div. of Aid for the Aged, et al.
    (No. 4011
    Decided April 29, 1947.)

      Mr. Frank J. Richter and Mr. Jerome Goldman, for relator.

      Mr. Hugh S. Jenkins, attorney general, and Mr. James A. Bope, for respondents.
   By the Court.

This matter is before this court on the demurrer of the respondents claiming a misjoinder of parties respondent. The action is one in mandamus, originating in this court, in which there appear as parties respondent: (1) The Chief of the Division of Aid for the Aged in the Department of Public Welfare; and (2) The two members of the State Civil Service Commission of Ohio.

The petition seeks the reinstatement of Owen F. Clements who was removed at the end of a 90-day probationary period under the civil service law. The position of the relator is that the respondent civil service commissioners, in addition to Karl R. Babb, Chief of the Division of Aid for the Aged, Department of Public Welfare, are necessary parties in order to give the relator cqmplete relief. It is the contention of the respondents -that these civil service commissioners are not necessary parties and that there is, therefore, a misjoinder of parties respondent.

Section 11255, General Code, provides the general rule under code pleading as to who may be joined as defendants. That section provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. ’ ’

Under the old age pension law of Ohio the power of appointment over the employees of the division of aid is vested in the chief of the division by Section 1359-11, General Code. The respondents contend that since it is the duty of only the chief of the division to appoint and reinstate, it is upon him only that the power and duty of reinstatement, if found proper by this court, is incumbent, and such person is, therefore, the only proper party defendant. We are not concerned, however, in this case, with the manner of an appointment, but we are concerned only with. a removal after a probationary appointment has been made. The manner in which that may be done is provided for by Section 486-13, General Code, as follows:

“* # * All original and promotional appointments shall be for a próbationary period of not to exceed three months to be fixed by the rales of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employee’s service, and if such service is unsatisfactory, the employee may, with the approval of the commission, be removed * *

Now, the Supreme Court of Ohio has decided upon several occasions that in a mandamus action it is proper to join all parties necessary to give the relator complete relief..

In the case of State, ex rel. Price, Atty. Genl., v. Huwe, 103 Ohio St., 546, 134 N. E., 456, the relator sought a writ of mandamus to enforce payment of a claim against the county. In the amended petition the county auditor and county treasurer were joined with the county commissioners as defendants 'and a demurrer was filed alleging misjoinder. The court overruled the demurrer and found that to obtain complete relief the joinder was proper.

Again, in State, ex rel. Turner, v. Village of Bremen, 115 Ohio St., 510, 154 N. E., 526, the court held that in a petition in mandamus seeking to enforce payment of a judgment against a village there is a defect of parties where relator does not join as defendants all officials necessary to bring about complete relief; and that the relator may join all officers haying control of the legal machinery to effect that purpose although they act by separate and successive stages.

In the instant case in order to remove an employee under Section 4§6-13, General Code, two steps are necessary: (1) The appointing officer shall transmit to the commission a record of the employee’s service; (2) the act of removal must be approved by the civil service commission.

Another case holding to similar effect is Riegel v. State, ex rel. Weaver, Pros. Atty., 20 Ohio App., 1, 151 N. E., 784, where the court says in the third paragraph of the syllabus:

“* * * A peremptory writ of mandamus may be allowed against all officials and official boards necessary to give full, adequate, and complete relief, and all such officials and boards may properly be joined as parties to the proceeding.”

Likewise, in State, ex rel. Belknap, v. Board of Elections, 3 Ohio App., 190, the court held that where a board of elections refused to act by reason of a direction of a secretary of state, even though the secretary of state did not have a right to direct a board of elections in regard to the subject matter, nevertheless the secretary of state was properly joinable as a party defendant in a proceeding in mandamus -to require the board of elections to issue a certificate of election, as the relator would have the right to join the secretary of state as k party respondent to obtain ultimate and complete relief.

The respondents have cited several Ohio cases, but we find on examination that the facts are not similar to those of the case at bar.

We, therefore, hold that, since action by the civil service commission as required by Section 486-13, General Code, is a necessary condition precedent to a probationary removal, and as all parties necessary to obtain complete relief are properly joinable in a mandamus action, the demurrer should be overruled.'

Demurrer overruled.

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


author: Middleton, P. J.

text:
    In re Estate of Dickman : Allison et al., Appellants, v. Allison, Jr., et al., Appellees.
    (No. 481
    Decided December 20, 1946.)

      Mr. B. A. Myers, Mr. O. J. Myers and Mr. Robert D. Touvelle, for appellants.

      Mr. Kerns Wright, Mr. Don Short and *Mr. Ed. L. Bryson, for appellees.
   Middleton, P. J.

This cause comes into this court on appeal on questions of law from a judgment of the Probate Court of Mercer county.

The action was filed to determine heirship in the estate of Rose Dickman.

The petition avers that the defendants, except Edrice Hiatt, are the heirs at law of Rose Dickman, deceased.

The defendant Edrice Hiatt filed answer in which she admits the death of Rose Dickman; that the plaintiffs are the brothers of the deceased; and that the deceased died seized of certain real estate and personal property. 'She then denies all the other allegations set out in the petition. v

By further answer she alleges that on February 3, 1927, by virtue of a decree of the Probate Court of Mercer county she was duly adopted by the decedent, Rose Dickman, and her husband; and that by reason of such adoption she is the sole heir at law of Rose Dickman.

Plaintiffs’ reply denies the adoption and the jurisdiction of the Probate Court of Mercer county to enter any decree of adoption of the defendant, as set forth in her answer.

Hearing was had and the court below found on the issues joined in favor of the defendant Edrice Hiatt. From that order the plaintiffs appeal.

In their assignments of error the plaintiffs complain of the following errors:

1. In rejecting evidence offered by the plaintiffs •to which the plaintiffs duly excepted.

2. That the decision and judgment of the court is contrary to the evidence and should have been for the plaintiffs.

3. That" the decision and judgment of the court is contrary to law and should have been for plaintiffs.

4. Error on the part of the court in overruling plaintiffs’ motion for a new trial.

5. That the decision and finding of the court is contrary to both the evidence and the law.

The courtAwill consider the first assignment separately and the last four assignments together.

The sole question at issue in this case is the validity of the order of adoption made by the Probate Court of Mercer county.

The defendant offered in evidence the. order of adoption, dated February 3, 1927, and rested. Plaintiffs then attempted to offer in evidence the following original papers filed in the case: First, the original petition for adoption; second, the order of the court made on the petition; third, the answer of the next friend; and, fourth, the decree of adoption. Those papers were marked plaintiffs ’ exhibits A, B, C and D, respectively. The court rejected such evidence and refused to admit the exhibits.

It is the rejection of - that evidence by. the court, which is the plaintiffs’ first assignment of error.

An attempt to show that a judgment is void because of lack of jurisdiction of the court which rendered it is a collateral attack upon the judgment, when made in a subsequent action in which the judgihent is evidence relative -to an issue thereof.. 23 Ohio Jurisprudence, 1145, Section 999.

‘ ‘ The record of a judgment of the Court of Common Pleas showed that ‘the defendants, by C., their attorney, came into court, and by virtue of his power of attorney, filed in this court, confessed judgment for the defendants for the sum of,’ etc. It was sought, in a collateral proceeding, to show that the only power of attorney among the papers in the case, and which was marked with the proper-number of the case, did not appear to be signed by some of the defendants, and that such defendants were at the time married women, and thereby to show that the judgment was rendered without jurisdiction and void. Held: That evidence of such facts could not be received to impeach the validity and effect, of the judgment.” Callen v. Ellison, 13 Ohio St., 446, 82 Am. Dec., 448.

We think there is no question that plaintiffs’ claim, in this proceeding, that the Probate Court did not have jurisdiction, is a collateral attack.

Plaintiffs offered, and the court admitted in evidence, pages 34 to 37, inclusive, of the adoption record No. 1 of the Probate Court of Mercer county, and pages 144 to 149, inclusive, of civil docket No. 8 of such court, which set forth the complete record of the adoption of the defendant.

The records required to be kept by the Probate Court are set forth in subdivision 4 of Section 10501-15, General Code (former Section 1594, General Code), as follows:

“4. A civil docket, in which shall be noted the names of parties to actions and proceedings, a minute of the time of the commencement ,of such actions and proceedings, and of the filing of the papers relating thereto, a brief note of the orders made therein, and the time of entering them.”

Section 8030, General Code, in effect at the time of the adoption in 1927, provided what records must be.made in connection with adoption proceedings, as follows:

“The petition, decree and proceedings shall be recorded in a book kept for that purpose and properly indexed; such book shall become part of the records of the Probate Court and all reports and affidavits shall be properly filed.”

The plaintiffs were, therefore, permitted to and did offer in evidence the entire record of the Probate Court in relation to the adoption of Edrice Hiatt.

A record of a judicial proceeding is made for the purpose of preserving the evidence of what was transacted in the proceeding. The record contains and is a history of the case from its beginning to its end.

.' A complete record having been made by the court, as provided by the Code above set out, the original papers were not submissible as a part of tbe record. Lessee of Morgan v. Burnet, 18 Ohio, 535.

The original papers could not be used to impeach the record and the court properly excluded them, and this court finds the plaintiffs ’ first assignment o.f error not well taken. Callen v. Ellison, supra.

As hereinbefore stated, the court will consider the remaining assignments of error together.

Plaintiffs attack the jurisdiction of the court to decree the adoption of defendant, on two grounds. First, that the court did not comply with the provisions of Section 10512-10, General Code (114 Ohio Laws, 471), formerly Section 8024-1, in that the court did not, upon the filing of the petition, ‘ ‘ appoint a day for the hearing of said petition and the examination, under oath, of the parties in interest, not less than ten nor more than thirty days from the filing of the petition.”

The record of adoption, as offered by the plaintiffs, does not support such claim.

The civil docket of the court shows the petition was filed on January 20, 1927; that the order for hearing on the petition was filed January 20, 1927; that the decree of adoption was filed February 3, 1927; and that, on February 3, 1927, all the foregoing were recorded in volume 1, at pages 34 to 38.

The adoption, record, volume 1, at pages 34 to 38, sets forth the petition dated January - 20, 1927, the order for hearing dated January 20, 1927, fixing February 3, 1927, as the day for hearing of the petition, the answer and consent of' next friend appointed by the court dated February 3, 1927, and the decree of adoption dated February 3, 1927.

The record, therefore, affirmatively shows on its face that all provisions of Section 10512-10, General Code, supra, were complied with by the court.

The plaintiffs further claim that the court did not have jurisdiction to decree' adoption, as the record fails to show on its face that the child sought to he adopted gave her written consent and that such written consent was witnessed and acknowledged.

It will be observed by a reading of Section 8025, G-enéral Code (109 Ohio Laws, 178), that .there was no. requirement that the consent of the minor be-filed of record. That section required written consent, but such consent could be offered in evidence at the time of hearing.

Further, Section 8030, General Code (109 Ohio Laws, 179), set out the record to be made by the court on adoption, and it is not required that such consent of the child be recorded.

Paragraphs three and four of the syllabus in the case of Martin v. Fisher, 25 Ohio App., 372, 158 N. E., 287, read as follows:

“3". A presumption of law arises from a decree of adoption that all the provisions of law relating thereto have been legally complied with. . ,

“4. Said presumption subsists until overcome by proof to the contrary.”

At page 375 of the opinion by Judge Justice is found the following statetaent:

CSaid Section 8025 of the General Code, in part, provides:

“ ‘All such consents to such adoptions shall be acknowledged and witnessed.’

‘1 This section' of the General Code is mandatory, and, in order to perfect a legal adoption, it must be strictly followed. But a careful examination of the record fails to reveal that it has not been complied with. It is true that the consent of the mother to the adoption, as shown by the paper writing marked plaintiff’s exhibit A, is neither acknowledged nor witnessed. It is also true that the record is silent as to an approval of the mother’s consent to the adoption by the court which granted the divorce decree. But the r'ecord does not show that such consent and approval were not, in fact, otherwise¿ and in accordance with the statute, given and obtained; and, in the absence of such a showing, it must be presumed that they were.” (Italics óurs.) .A motion to certify the record was overruled.

“A record of adoption imports absolute verity in a collateral proceeding, and it will be presumed that the provisions of law relating to adoption have been legally complied with.” Lawson v. Thomas, 48 Ohio App., 311, 193 N. E., 655.

“1. Attack on an order of court, entered in a case in which the petition was jurisdictionally sufficient, is in the nature of a collateral attack and is subject to the rules applicable thereto.

“2. Where a petition asked for relief which the court had the power to grant, and a decree was entered in accordance therewith, it will be presumed in subsequent collateral proceedings that all incidental questions were duly considered.

“3. The right to inherit from a foster parent is not defeated by the absence from the proceedings of adoption of assent thereto on the part of both of the natural parents.” Taylor v. Bushnell, Exr., 29 C. C. (N. S.), 497, 35 C. D., 642.

However, it does appear affirmatively from the record in this case that the written consent of the child was given. The/entry of the court dated January 20, 1927, states:

“This day Charles C. Dickman and Rose Dickman, husband and wife, appeared in open court and filed herein their petition for leave to adopt and change the name of' Edrice Shroeder, aged 20 years, child of John Shroeder. and Christina Shroeder, to the name .of Edrice Dickman with the answer and consent in writing of Edrice Shroeder.” This appears on the adoption record at page 34.

Holding the view that we do that all the requirements of the Code were complied with, that the judgment of the court below was not contrary to the evidence nor contrary to the law,' and that the court properly overruled plaintiffs’ motion for a new trial, the. judgment of the court is affirmed.

Judgment affirmed.

Jackson and Guernsey, JJ., concur.


author: Hildebrant, J.

text:
    Friedrich, Appellee, v. Nolan et al., Appellants.
    (No. 6859
    Decided November 17, 1947.)

      Messrs. Bauer é Breyer, for appellee.

      Mr. Hyman B. Rosen and Mr. Lester B. Butter-worth, for appellants.
   Hildebrant, J.

This is an appeal on questions of law from a judgment for plaintiff, following a jury verdict finding plaintiff entitled to a commission for selling defendants’ real estate.

Number six of the seven assignments of error is directed at the giving of the following special charge, requested by the plaintiff:

“I charge you, members of the jury, that if you find that the evidence most favorable to plaintiff’s case, tends to prove that the broker and the owner entered into an oral agreement, whereby the broker was employed to sell the owner’s property at a fixed commission, and the broken thereupon made an effort to procure a purchaser and presented an offer from a prospective purchaser to the owner, and áfter the offer was presented, the owner and purchaser consummated the sale, then and in that event the broker is the procuring cause of the sale and is entitled to recover the agreed commission based on the actual sale price, and your verdict must therefore be for the plaintiff.”

That charge violates the rule as stated in Van Demark v. Tompkins, Exr., 121 Ohio St., 129, at page 132, 167 N. E., 370:

“It is, of course, the general rule that the jury is to determine the issues from all the evidence in the case, not that produced and offered exclusively by one side or the other, but from the testimony of all witnesses, the depositions, and any other items of evidence admitted at the trial. ’ ’

See, also, Cincinnati Traction Co. v. Williams, 115 Ohio St., 124, 152 N. E., 30; Travelers’ Ins. Co. of Hartford, Conn. v. Gath, 118 Ohio St., 257, 160 N. E., 710. This court has followed the general rule in City of Cincinnati v. Tuke, 70 Ohio App., 47, 44 N. E. (2d), 748; Sweeney v. Schneider, 73 Ohio App., 157, 53 N. E. (2d), 820; Estridge, Admx., v. Cincinnati Street Ry. Co., 76 Ohio App., 220, 63 N. E. (2d), 823.

In 39 Ohio Jurisprudence, 985, it is stated:

“The jury, in weighing the evidence with the view of determining in whose favor it preponderates, should weigh and consider all of the evidence introduced by both parties, and they should be instructed so to do by the court. The charge should not be drawn so as to confine the jury, in weighing the evidence in favor of one party, to that offered by such party, excluding any benefit that might be derived from his adversary’s evidence, or from that of any witnesses. The jury should be instructed to consider, in weighing evidence for either party, all the evidence introduced by both.”

The above charge would seem to deny to the defendants the right to have the jury consider all the evidence on the issues submitted and to tend to mislead the jury into considering only a part or less than all the evidence introduced which might bear on those issues, and, therefore, constitutes prejudicial error.

There are no other errors prejudicial to defendants in the record.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Carpenter, J.

text:
    Schwab, Appellee, v. Keeler, Appellant.
    (No. 601
    Decided April 21, 1947.)

      Mr. Lewis L. Marquart and Mr. George A. Beis, for appellee.

      Messrs. Krueger, Rosino, Moyer & O’Hara, for appellant.
   Carpenter, J.

After dark on November 28, 1942, while traveling as a pedestrian north on the east side of Columbus avenue in the city of Sandusky, plaintiff was struck on the crosswalk of East Park street by a motor vehicle driven by the defendant northeasterly from Hayes avenue across Columbus avenue into East Park street. The intersection is a fiveLpoint one and East Park street is very nearly an extension of Hayes avenue crossing Columbus avenue diagonally in a northeasterly direction.

For the injuries plaintiff sustained, he was awarded a verdict and judgment of $10,000, from which judgment defendant’s appeal on questions of law brings this case to this court.

Traffic at that intersection was controlled by a light, and each party contends that he had the green light as he entered the intersection. There was some street illumination at that corner. Defendant said that the lights on his truck were on dim and cast light a hundred feet ahead, yet neither party saw the other before the collision. He testified also that his brakes were “poor” and did not hold at times, and that his horn was “inoperative.” The left front fender of the truck was dented and the left headlights bent, circumstances indicating that those spots struck the plaintiff, and that he had walked in front of the truck the width of it before he wasi hit.

The principal assignment of error concerns the court’s charge to the jury on the subject of plaintiff’s negligence. Defendant complains that the charge and the instruction given on request of the jury after it had deliberated “eliminated the issue of sole negligence of the plaintiff.” This court has twice said that “sole” negligence of any one other than the defendant could not be an issue in a negligence case. It is an immaterial matter. Leopold v. Williams, 54 Ohio App., 540, 8 N. E. (2d), 476; Hatsio v. Red Cab Co., 77 Ohio App., 301, 67 N. E. (2d), 553.

In Bush, Admr., v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851, the Supreme Court has told us recently in paragraph four of the syllabus that “the issue of contributory negligence does not arise unless the issue of negligence on the part of the defendant is first found adverse to the defendant.”

On page 667 of the opinion in that case, Judge Hart cited four cases decided by the Ohio Supreme Court, supporting the above statement and said:

‘ ‘ The jury must.first consider whether the defendant was negligent. If it finds the defendant was not negligent there is no further issue to be considered. ’ ’

If the defendant is found negligent, the jury’s next consideration should be whether such negligence caused the alleged, damages. If the ánswer is negative, the jury’s work is done. Glass v. William Heffron Co., 86 Ohio St., 70, 75, 98 N. E., 923. Unless the findings on both those issues are positive, it does not concern the defendant, the jury or the court who or what caused the damage. Contributory negligence on the part of the plaintiff and its causal connection with the damage can only claim attention after both of the above issues have been resolved against the defendant.

In connection with the charge on the subject of speed of defendant’s truck, the court included “the assured clear distance ahead” provision of the speed statute. This the defendant contends was error. A similar charge was approved in Glasco v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210, where the pedestrian plaintiff was in the street between intersections, a situation less favorable than that of plaintiff in the instant case.

The charge of the court in all these respects and under the record herein was not erroneous.

It is contended also that the verdict and judgment were against the weight of the evidence, but that claim is not sustained.

As we find no error in the record prejudicial to the defendant, the judgment is affirmed.

Judgment affirmed.

Stuart and Conn, JJ., concur.


text:
    The State, ex rel. City of Toledo, v. Board of Elections of Lucas County et al.
    (No. 4160
    Decided March 22, 1946.)

      Mr. W. G. Christensen, director of law, and Mr. J. Slater Gibson, for relator.

      Mr. Harry Friberg and Mr. Lehr Fess, for respondents.

      Mr. David A. Gliberman, amicus curiae.

   By the Court.

This is an action in mandamus, originating in this court, hy the city of Toledo, as relator, against the board of elections of Lucas county and its members, as respondents, to require them to provide for a special election in that city on or before April 11, 1946, to submit to the electors thereof a referendum on an ordinance enacted by the council of the city on January 28, 1946, levying what is popularly known as a payroll income tax. On February 27, 1946, a referendum petition was duly filed as provided for in section 81 of the city’s charter, and on March 12, 1946, the clerk of council certified to the council and to the hoard of elections that the petition was sufficient and requested the board to provide for an election on the same, as required by section 83 of the charter.

Included in the certification was a copy of that section which reads as follows:

“The ordinance on which a referendum vote is demanded by petition shall be submitted at a special election held not later than thirty days after the clerk has certified to the election authorities that the petition for submission is in accordance with the requirements of this charter; but if a regular election is to be held within six months, such ordinance shall be submitted at the regular election, unless the council directs that an earlier and special election be held.”

By answer, the board admitted' the facts above stated, but alleged that it “found and determined that it was impossible to comply with the several provisions of the election laws of Ohio and conduct a special election on said referendum prior to May 7, 1946, and thereupon resolved to submit the question of the, approval or rejection of the said ordinance to the voters of the city of Toledo at a special election to be held on May 7, 1946.”

The validity of the ordinance in question is not involved in this case.

No general law has been cited and the court has found none which prohibits_ or conflicts with the charter provisions. The city had the power by charter to make these provisions. Sections 3 and 7, Article XVIII, and Section 1/, Article II, Constitution of Ohio; Fitzgerald et al., Board of Deputy State Supervisors, v. City of Cleveland, 88 Ohio St., 338, 103 N. E., 512, Ann. Cas. 1915B, 106. Having been made, the provisions must govern. Dillon v. City of Cleveland, 117 Ohio St., 258, 158 N. E., 606.

No express provision of law invests the board of elections with authority to provide a date for a special election other than that fixed by the charter, nor does this court have such power.

At this time, the court cannot anticipate the physical difficulties the board may encounter in its attempt to legally comply with the charter provision. The evidence offered in this case does not establish such an impossibility of performance as under the law would require denial of the writ.

In the oral argument it was contended that the board is an instrumentality of state government and as such is not bound to follow the directions of the charter of the municipality. In State, ex rel. City of Lakewood, v. Bernsteen et al., Deputy State Supervisors, 115 Ohio St., 722, 156 N. E., 213, the Supreme Court decided otherwise.

In the light of the clear direction of the charter, this court has no alternative but to order a peremptory writ as prayed for.

Writ allowed.

Carpenter, Stuart and Conn, JJ., concur.