author: Shohl, P. J.

text:
    PROVISION FOR A WIFE DIVORCED FOR HER OWN AGGRESSION.
    Court of Appeals for Hamilton County.
    Robert O. Heflebower v. Helga V. B. Heflebower.
    Decided, February 24, 1920.

      Divorce and Alirnony — Decree Making a Division of the Husband’s Property — Distinguished from an Allowance of Alimony — Allowance of a Monthly Sum for an Indefinite Time — Where Neither Fixed or Ascertainable is not a Share of the Husband’s Estate.

    1. In an action for divorce and alimony the power of the court to make provision in favor of a wife, against whom a divorce has been ordered for her aggression, is fixed by Section 11993 of the General Code. It is authorized to order the transfer to her of a share of real or personal property, owned by the husband at the time of the decree, but it may not order alimony based on future personal earnings.
    2. Whether a decree entered constitutes an order for the payment of alimony or a share of the husband’s estate, is to be determined by the legal effect of the judgment entry as a whole.
    3. An order for alimony can be modified upon a change of circumstances and conditions and differs from an order adjudging a share of the husband’s real or personal property, which is a final determination of the rights of the parties.
    4. Where the court makes an order for the payment of a monthly sum for an indefinite time, not out of property then owned by the husband, the total amount of which is neither fixed nor ascertainable, the award is not a “share of the husband’s real or personal property.”
    5. If a court makes ia decree which is not within the powers granted to it by the law of its organization, the decree is void and it may be attacked collaterally in proceedings in contempt to enforce it.

      Closs & Luebbert and Dempsey c& Nieberding, for plaintiff in error.

      Pech, Shaffer & Williams, contra.-
    Heard on error.
   Shohl, P. J.

This is a proceeding in error to the judgment of the court of insolvency finding plaintiff in error guilty of contempt of court because of disobedience of an order directing him to pay $35 per month to defendant in error, against whom he had been granted a divorce.

In January, 1910, the plaintiff in error brought an action against the defendant in error, praying for a divorce and for general relief. Defendant filed a cross-petition praying for alimony. In September, 1910, the court entered a decree in favor of the plaintiff finding the defendant guilty of wilful absence and dissolving the marriage relation between the parties. The court reserved all questions of alimony and support of children and attorneys’ fees for further hearing. After the further hearing, the court entered the following:

“This cause coming on further to be heard upon the matter of alimony allowance to the defendant and upon the evidence, the court find that the defendant is entitled to alimony, and it is ordered, adjudged and decreed that the plaintiff pay to the defendant the sum of $35 per month upon the first day of each and every month, and the further sum of $100, to be paid to the counsel for said defendant as an allowance of counsel fees herein.
“And it is further ordered that the custody and support of the children be committed to the defendant until further order of the 'Court, and that the support of said children, during their minority, be borne by the defendant.”

In September, 1918, the defendant filed charges of contempt against plaintiff for failing to pay the sums ordered. The plaintiff answered alleging that the plaintiff had been granted a divorce against the defendant by reason of her aggressions; that the plaintiff at the time of the decree had no property or estate of any kind, except his ability to earn money in his profession, and that there was no order, decree or judgment awarding to the defendant any property or estate belonging to the plaintiff; that the court was without power or authority to enter a decree for weekly alimony and for other reasons. All of- the pleadings an¿l orders of the court in the divorce case were placed in evidence.

It is admitted that after January 1st, 1917, plaintiff has made no payments under the order of court.

The case raises several questions.

First. May a court grant to a wife, against whom a divorce has been ordered for her aggression, alimony payable periodically for an indefinite time, and is this an order for the payment of a share of the husband’s real or personal property?

Second. ■ Does it appear from the record that the trial court did so decide?

Third. If the court did so decide, and if such decision is incorrect, can it be questioned in an action for contempt?

Jurisdiction in matters of divorce and alimony is purely statutory. Marleau v. Marleau, 95 O. S., 152.

General Code, Sections 11990 and 11991 fix the rights of a wife to whom a divorce is granted because of the husband’s aggression. Th,e rights of a wife against whom a divorce is granted by reason of aggression are fixed by Section 11993. These sections are as follows:

Section 11990. “When a divorce is granted because of the husband’s aggression, by force of the judgment the wife shall be restored to all her lands, tenements and hereditaments, not previously disposed of, and the husband barred of all right of dower therein. If she so desires the court shall restore to her any name she had before such marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce. ’ ’
Section 11991. “Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court deems equitable. If the wife survives her husband, she also shall be entitled to her right of dower in his real estate not allowed to her as alimony, of which he was seized during the coverture, and in which she had not relinquished her right of dower. ’ ’
Section 11993. “When the divorce is granted by reason of the aggression of the wife, she shall be barred from all right of dower in the lands of which her husband is seized at the time of filing the petition for divorce, or which he thereafter acquires, whether there is issue or not. The judgment of “divorce shall restore to her the whole of her lands, tenements or hereditaments not previously disposed of and not allowed to her husband as alimony, subject to the dower right of her husband therein. The court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just; * *

' Unless the wife, who is adjudged to be in the wrong, acquires her rights under Section 11993, there is no foundation for a provision in her favor. It is necessary, therefore, to examine the language of that section. The statement “the court may adjudge to her such share of the husband’s real or personal property as it deems just,” seems plain. Its power to make an award in her favor is to order the transfer to her of a share of certain existing property.

It is urged on behalf of the defendant in error that the Supreme Court in the case of Lape v. Lape, 99 O. S., —, in construing Section 11990 held that jurisdiction to grant alimony “hut of her husband’s property” permitted the allowance of alimony based on future earnings or wages of the husband. The decision in that case holds that as the court has power to order “alimony” the phrase “out of her husband’s property” is not of controlling force. In determining what the legislature meant by ‘ ‘ alimony, ’ ’ the court reiterates the statement in Fickel et al v. Granger, 83 O. S., 101, that it is founded on-the obligation which grows out of the marriage relation that the husband must support his wife, which obligation continues after legal separation, without her fault. The decision as a whole is an application of the doctrine stated by Judge Thurman in the case of Tracy v. Admr. of Card, 2 O. S., 431, and referred to in the Lape opinion, that “it is by no means unusual in construing remedial statutes to extend the enacting words beyond their natural import and effect in order to include cases within the same mischiefs. ’ ’ The construction there given was required to prevent injustice to a wife who had been wronged. Those considerations can not fairly be said to be applicable to a case where the marital relation is terminated by reason of the misconduct of the wife. The language of the statute, Section 11993, is plain and the sole function of the courts is to enforce it according to its terms. Elmwood Place v. Schanzle, 91 O. S., 354, 357; Slingluff v. Weaver, 66 O. S., 621; Woodbury & Co. v. Berry, 18 O. S., 456; Caminetti v. United States, 242 U. S., 470, 485; United States v. Detroit First National Bank, 234 U. S., 245, 258; United States v. Lexington Mill & Elevator Co., 232 U. S., 399; Lake County v. Rollins, 130 U. S., 662, 670, 671.

We are of opinion, therefore, that under Section 11993 a court may award to a wife, for whose aggression a divorce has 'been granted to her husband, a share of such property only as the husband may own at the time of the rendering of the decree. It is not empowered to order payments out of future personal earnings or wages of the husband.

It is urged, however, that the court is bound to presume that the decree, the enforcement of which is sought in these contempt proceedings, included a determination that the husband then owned the property which was ordered to be paid. While it will be presumed in the absence of a showing to the contrary that the court proceeded in accordance with law and found the husband to be possessed of property out of which the payments could' legally be decreed, the record is inconsistent with the contention that the decree is an order for the payment of a share of existing real or personal property. On its face it purports to be an alimony allowance. That statement alone is not conclusive. The legal effect of the judgment entry as a whole and not the mere language used must govern. It is not payable from any existing property owned by the husband, nor is the total sum payable fixed or ascertainable. In the case of Hassaurek v. Markbreit, Admr., 68 O. S., 554, at 578’ Judge Shauch said:

“The finding of the court * * * that the wife had been absent for more than three years * * * excluded her right to alimony. ’ ’

He had in mind a distinction between “alimony” and “share of the husband’s property,” as appears from page 580 of the same case where a reference to what was then Section 5700, R. S.: “And the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable. ’ ’

Counsel for defendant in error offer the ingenious suggestion that the court in presuming such a state of facts to have .existed as would justify the judgment, might assume that the plaintiff at the time of the original trial had an annuity or other fixed source of monthly income without possession or right of possession of the principal or corpus of the estate from which it was derived, and without power of anticipation of the principal. The right to receive such income would undoubtedly be property and a portion thereof would be literally a share of the husband’s property. Had such a state of facts existed and had the court adjudged to the wife a share of such property, his obligation would have been limited to the payment of that income, so long as it was received. Insolvency of an obligor of the annuity or other loss of source of income, might destroy the property and would excuse further payments, if the court had merely transferred to the wife an interest in such property. The terms of the decree in the case at bar preclude such possibility. Under its terms, the payments go on indefinitely.

It appears, therefore, that the order of the trial court in the divorce case was not a direction for the payment of a share of the property) but was an order for the payment- of permanent alimony. They are different in their nature. If the order were alimony, it might b.e modified upon a change of circumstances and conditions. If it were in the nature of a permanent-division of the husband’s property, it would be a final determination of the rights of the parties in that respect. Fenn v. Fenn, 23 C. C. (N. S.), 205 (affd. 83 O. S., 731); Lally v. Lally, 152 Wis., 56; Norris v. Norris, 162 Wis., 356, and note in 1 A. L. R., 1106.

If the court was without power to grant alimony to the defendant, and, if what it did grant constituted alimony, can the validity of the decree be brought in question in this case? If the court which has jurisdiction renders a judgment -which it has the power to make, but which is merely erroneous, its decision can not be attacked collaterally. Bly v. Smith, 94 O. S., 110. Though a court may possess jurisdiction of a cause, of the subject matter, and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments, and, if it makes a decree which is not within the powers granted to it by the law of its organization, the decree is void. Standard Oil Co. v. Mo., 224 U. S., 270, 281, 282; Works on Courts, 2nd Edition, Section 8; Windsor v. McVeigh, 93 U. S., 274, 282; 15 R. C. L., 853.

The power of the court is limited to adjudge a share of the husband’s real or personal property. Its attempt to do more than that being in excess of its powers, is of no legal effect. It follows, therefore, that the order of committment by the court of insolvency for failure to obey that part of the decree which was void was improper.

The judgment will be reversed.

Hamilton and Cushing, JJ., concur.


source: Caselaw Access Project

author: Richards, J.

license: Public Domain

text:
    RIGHTS OF UNPAID SELLER OF GOODS IN POSSESSION AS BAILEE.
    Court of Appeals for Lucas County.
    The Toledo Pulp Plaster Co. v. Chambers et al.
    Decided, March 10, 1019.

      Unpaid Seller Holding Mortgage on Goods Sold — Bights of as Against Subsequent Purchaser Before Becording of Mortgage.

    1. By virtue of the provisions of Section 8560, General Code, the rights of a mortgagee of chattels are superior to those of a subsequent purchaser, who became such before the mortgage was deposited with the proper recording officer, but with knowledge of its existence.
    2. Under Section 8434, General Code, the unpaid seller of goods, may exercise his right of lien even though he is in possession as bailee of the purchaser.

      Warren J. Diiffey and George G. Bryce, for plaintiff in error.

      Edward II. Bay, contra.
   Richards, J.

Heard on error.

The Toledo Pnlp Plaster Company commenced an action in the court of common pleas for the replevin of a two-ton Yelie automobile truck, claiming to own the same, and to be entitled to the immediate possession, and. that the truck was wrongfully withheld by the defendants. The plaintiff secured the possession of the truck by virtue of the replevin thereof, and the trial resulted in a judgment in favor of the defendants in the sum of $876.64, the defendants not having executed a bond for the return of the property.

We are asked to reverse this judgment as being contrary to law and the evidence. The bill of exceptions discloses that the truck was sold by the defendants, who were the owners of it, to one John Johnson, on the morning of April 17, 1917, and that in part payment of the same they took from Johnson a chattel mortgage on the truck, in the amount of $800, securing certain notes, and plac.ed the mortgage on file in the proper office at 11:45 o ’clock,. a. m., of that day. Immediately after the sale of the truck to Johnson he caused it to be driven to the office of the plaintiff company, and there consummated an agreement which had been discussed between him and the plaintiff, by which he sold the truck to the plaintiff, the value of the same to be credited upon a pre-existing indebtedness owing from him to the plaintiff, excepting that plaintiff advanced to Johnson a check of $280 to enable him to pay that amount to the defendants. Some six or eight months after the purchase by the plaintiff of the truck, it delivered the same to the defendants for the purpose of having certain repairs made, and upon the completion of the repairs tendered to the defendants the reasonable value of the repairs and demanded the return of the truck. The defendants, however, refused to deliver it to the plaintiff without payment of the mortgage held by them, amounting to $800 and interest, which was then past due, and on such, refusal this action in replevin was brought. The controversy between the parties is oyer the matter of priority, the plaintiff contending that it purchased the truck in good faith, before the mortgage which had been given by Johnson to the defendants had been deposited by the defendants with the county recorder, as required by statute. The plaintiff further contends that even if the mortgage of the defendants is prior, they are estopped from asserting the same as a ground for withholding the delivery of the truck, because they had received the same as a bailee for the purpose of repair simply, and on tender of the proper charge for repairs, the defendants would, in no event, have the right to retain possession of the truck. The defendants contend that the mortgage held by them is the prior-lien, and that the plaintiff had knowledge of their mortgage when it purchased, and therefore did not purchase the truck of Johnson in good faith, and that the amount represented by the notes and mortgage held by defendants being past due they were justified in retaining possession until their claim was paid.

The priorities as between the parties to this action are to be determined by the provisions of Sec. 8560, G. C., which reads as follows:

“Section 8560. A mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which is not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the'mortgagor, subsequent purchasers, and mortgagees in good faith, unless the mortgage, or a true copy thereof, be forthwith deposited as directed in the next succeeding section.”

If this section were to be given its grammatical construction, and due consideration given to the comma which appears after word “purchasers,” there is basis for argument that the requirement of good faith, which is imposed 021 mortgagees, does not apply to purchasers, and if such construction were adopted then a purchaser who buys property which.is under chattel mortgage, even with knowledge thereof, the mortgage not having been left with the proper recording officer, would be entitled to priority over the mortgage. In view, however, of -the history of this section, we can not give it the construction suggested. The section was originally enacted by the General Assembly on February 24, 1846, and is found in 44 O. L., 61, and as there published the section contains no comma after the word “purchasers.” This section is printed in the same form in 1 S. & C. Statutes, 475, and met with no change from the date of its enactment until it appears in the general revision of .the statutes in 1880, where it is designated as Sec. 4150. The evident legislative intent, evidenced by the section as originally enacted, was to group subsequent purchasers with mortgagees and to require that each should act in good faith in oider to be entitled to. priority over a chattel mortgage which, had,not been deposited- as contemplated by that section. We can not hold that the insertion in the revision of 1880 of a comma after the word “purchasers” is sufficient to change the meaning of the act and to exempt such purchasers from the requirement of good faith. It is said in State, ex rel Nimberger v. Bushnell, 95 Ohio. St., 203, that the re-enactment of a statute in a code or revision does not change its meaning or construction unless the language of the revision clearly manifests the legislative intent to make such change.

Reason indicates that subsequent purchasers and mortgagees should be grouped together in the statute. Purchasers invest relying on their judgment as to the value of property, and secure title thereto by their purchase. Mortgagees take their security, relying on their judgment as to the value of the property and become the general owner, as laid down in Robinson v. Fitch, 26 Ohio St., 659. This suggestion strengthens the view that the section quoted was intended to group purchasers and mortgagees and make them subject to the same provision of good faith, and this view is further strengthened by the language of See. 8565, G. C. ' That section provides for the refiling of a chattel mortgage within the thirty days next preceding the 'expiration of the first filing, and contains a provision rendering it void against certain classes of persons unless so refiled, the classes of persons mentioned being creditors, subsequent purchasers and mortgagees in good faith; and the section contains no comma after the word “purchasers.” The two sections must be construed together; each section to impose the same duty and confer the same rights on purchasers.

We hold, therefore, that in order to entitle the plaintiff to protection as a purchaser of the truck he must have become such in good faith, and it has been so stated in the course of the opinion in Cooper v. Koppes, 45 Ohio St., 625. The court, speaking through Owen, C. J., uses the following language on page 630:

“The penalty which the statute had denounced against every unfiled mortgage, or conveyance intended to operate as a mortgage, of chattels unaccompanied by immediate delivery, and followed by continued change of • possession, is that it shall be absolutely void as against creditors and Iona fide- purchasers and mortgagees.”

The evidence as to knowledge of the plaintiff at the time of purchase is in conflict. The defendant Chambers testified that before the sale from Johnson to the plaintiff was effected, he notified the plaintiff over the telephone that the defendants held a mortgage upon the truck, and there are some circumstances tending to corroborate this claim. The telephone conversation is denied by the plaintiff, but the trial judge found with the defendants on this proposition, and there being sufficient evidence in the record to sustain such finding we must decline to interfere therewith.

It is, however, insisted that the defendants, having received the truck as bailees, and for the purpose of repair, were not entitled to withhold the delivery of the same from the plaintiff on tender of their proper charges for making the repairs. Counsel contend that the case falls within the general rule announced in 6 Corpus Juris, 1108, and that the defendants are estopped from setting up any claim under their mortgage without first having redelivered the property to the plaintiff, who was the bailor. Other authorities are cited which announce the same doctrine, but we hold the rights of the defendants are controlled by the language of paragraph 2 of See. 8434, G. C., and that the sellers, in this case the defendants, may exercise their right of lien, notwithstanding they were in possession of the truck as bailee of the buyer. It is not neeessarv. to inquire what the rule of law might be in the absence of this statute, but by reason of the language of this statute the defendants were not estopped to set up their claim as they did, under the mortgage, insisting that by the provision of the mortgage, they were entitled to take or hold possession because they considered their security endangered.

We call attention to the state of the record in this case. The journal entry shows that the judgment was rendered on the 28th day of September, 1918, while the motion for new trial was filed on May 13, 1918. Suspecting that counsel for plaintiff would be unlikely to file a-motion for new trial before they were defeated, we have examined the trial docket of the court of common pleas and find, according to the notation on that docket, that this case was decided on May 9, 1918. Counting from that date, the motion for new trial was in time, the 12th day of May having been Sunday. We suggest that the record could be corrected by a nunc pro tunc order in the trial court.

Judgment affirmed.

Kinkade and Chittenden, JJ., concur.


author: Cushing, J.

text:
    MISREPRESENTATION IN APPLICATION FOR ACCIDENT INSURANCE.
    Court of Appeals for Hamilton County.
    Connecticut General Life Ins. Co. v. Richardson.

    Decided, June 18, 1919.

      Contracts of Insurance — Controlled by Law of the Place Where Made-Construction of Section 9391, Relating to Misrepresentations by an ■ Applicant for Insurance.

    1. The validity, nature and effect of a contract are governed by the law of the .place with reference to which such contract is made.

      2. Where a statute relates to a remedy the law of the place where the court sits governs.
    3. Section 9391, General Code, relating to misrepresentations hy an applicant for insurance, is applicable to a .policy of accident insurance.

      W. J. Ilammersly, Louis B. Sawyer and Robertson, Buck-waiter & Oppenkeimer, for plaintiff in error.

      Robert Ramsey, contra.

       Motion to require the Court of Appeals to certify its record in this case overruled hy the Supreme Court, November 25, 1919.

   Cushing, J.

Heard on error.

Defendant in error, Gertrude Galt Richardson, recovered a judgment on an accident insurance policy issued by plaintiff in error, insuring Charles C. Richardson against loss resulting from bodily injuries and death through external, violent and accidental causes.

The petition stated that Charles C. Richardson died, December 31, 1915, from external, violent and accidental means, viz., by drowning; that he had performed his part of the contract; that proofs of loss were made according to provision of the policy, and that the company refused payment under the policy.

The amended answer admitted incorporation and undisputed facts. It defended on three grounds: that the statement in decedent’s application that he had not been refused insurance in this or any other company was false; that the answer to question M in the application was false; and that the answer to question P in the application was .false. The reply to the answer was a general denial.

Four questions are presented by this record:

1. That the policy was a New York contract and the court erred in holding that the issue of misrepresentation was to be determined by the law of Ohio.

2. That the Ohio statute regarding misrepresentation has no application to accident insurance.

3. That the plaintiff failed to meet the burden of proving accidental death and in overruling defendant’s motion for a peremptory instruction.

4. That the alleged misrepresentations in the application were shown without a conflict of testimony, and the refusal of the court to give a peremptory instruction on that ground was error.

These questions will be considered in the order stated. Section 9391, G-. C., provides;

“No answer to any interrogatory made by an applicant, in his or her application for a policy, shall bar the right to recover upon any policy issued thereon, or be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer -is willfully false, was fraudulently made, that it is material, and induced the company to issue the policy, and that but for such answer-the policy would not have been issued; and, also that the agent or company had no knowledge of the falsity or fraud of such answer.”

The claim is made that as the agent of Richardson resided in New York and the policy was countersigned and delivered there, it ivas a .New York contract and the statute of Ohio was inapplicable. There is no question as to the validity of the contract raised in this case. The section under consideration provides what must 'be established before any answer in an application will bar a recovery, and under what condition such an application may be used in evidence on a'trial to recover on a policy of insurance.

The validity, nature and effect of a contract are governed by the law of the place with reference to which it is made. Where a statute relates to the remedy the rule is that the law of the country where the court sits shall govern.

“But not that portion which relates to matters of procedure only, such as the admission of evidence, and the rules of evidence. The latter are matters which affect the remedy and are governed by the law of the country where the court sits which is asked to enforce the contract.” Union Central Life Ins. Co. v. Pollard, 94 Va., 146 (26 S. E., 421; 36 L. R. A., 271; 64 Am. St., 715) ; Massachusetts Benefit Life Assn. v. Robinson, 104 Ga., 256, 287 (30 S. E., 918; 42 L. R. A., 261) ; Nelson v. Nederland Life Ins. Co. Ltd., 110 Ia., 600 (81 N. W., 807); and New York Life Ins. Co. v. Block, 12 L. R., 224.

Section 9391, G. C., is remedial, It provides when an application for insurance may be used in evidence, and when it will bar a recovery in an action on a policy based on such application.

Counsel for plaintiff in error contend that Sec. 9391, G. C., is not applicable to a policy of accident insurance, and thé history of the statute is traced to establish that the intent of the Legislature was to confine the operation of that section to life insurance. An examination of the arguments and authorities in support of them is foreclosed by the affirmance by the Supreme Court, in 73 Ohio St., 340, of the case of Standard Life & Accident Ins. Co. v. Sayler, 2 N.P.(N.S.), 305. Counsel for plaintiff in error represented the insurance company in that case. It established the law that an insurance company doing a business of “life” and “accident” insurance is within the purview of old Sec. 3626, Rev. Stat., the predecessor of See. 9391, G. C., The presumption is that the codification of that section did not change its meaning or effect. State v. Stockley, 45 Ohio St., 304, 309; Allen v. Russell, 39 Ohio St., 336; Warren v. Davis, 43 Ohio St., 447; State v. Shelby Co. (Comrs.), 36 Ohio St., 326, 330, and 2 Sutherland on Statutory Construction (2 ed.), Sec. 451.

The court did not err in applying that section in the trial of this case.

On the question that the plaintiff failed to meet the burden of proof that death was caused through external, violent and accidental means. The deceased, when last seen alive, was at the reservoir getting a drink of water, which act required him to reach a short .distance over the concrete wall toward the center of the reservoir. Some hours afterwards his body was found in the water.

In submitting the fact to the jury on this issue the trial court correctly stated the law. It required the jury to consider and determine whether the death was caused by external, violent and accidental means, or whether disease or other cause directly contributed to the death.

If the contentions of plaintiff in error are correct, when a human being is last seen standing near a body of water, and some .hours later his drowned body is found in the water, suicide will be presumed, in the absence of direct proof of accident.

It is the law of Ohio that when a person is drowned, the presumption is against suicide. Travelers’ Ins. Co. v. Rosch, 3 C. C. (N. S.), 156, affirmed 69 Ohio St., 561.

The fourth ground urged by plaintiff in error, that the policy was void for misrepresentations in the application and error of the trial court in refusing a peremptory instruction on that ground', will not be discussed. The basis'of counsel’s contention is that this is a New York contract and that Sec. 9391, G. C., is not applicable. We have found that the law of Ohio on insurance policies relates to the remedy, and that by a decision of the’ Supreme Court of Ohio, above referred to, Sec. 9391 is applicable to injuries resulting in death. The court, therefore, properly overruled the motion for a peremptory instruction. The materiality of the representations by decedent was fairly submitted to the jury. Its verdict will be regarded as a finding that any untrue representations were not material.

Judgment affirmed.

Shohl and Hamilton, JJ., concur


author: Washburn, J.

text:
    VALUATION OF GOODS LOST THROUGH MISDELIVERY.
    Court of Appeals for Cuyahoga County.
    New York, Chicago & St. Louis Ry. v. Euclid Builders Supply Co.
    Decided, June 27, 1919.

      Carriers — Shipment Lost to Consignee Through Misdelivery — Liability Therefor may not be Limited to Yalue at Shipping Point, Including Freight Charges, When.

    The provision of a bill of lading that, in case of loss, the damage for which the carrier is liable shall be computed on the basis of the value of the goods at the time and place of shipment, including freight charges, is against public policy and will not be enforced, where such provision was not agreed to in consideration of a reduced freight rate, and the freight rate was not based on the value of the goods, and where the goods were misdelivered without fault on the part of the shipper or consignor.

      M. B. & 11. U. Johnson, for plaintiff in error.

      E. B. Fuller, for defendant in error.
   Washburn, J.

Heard on error.

Defendant in error, The Euclid Builders Supply Co., had consigned to it a carload of lime, to be shipped from one point in Ohio to another point in Ohio, over the road of the plaintiff in error, The New York, C. & St. L. Ry.

The shipment arrived at the place of destination, which was Cleveland, but instead of the railway company delivering the lime to consignee, it delivered the same to a competing concern, and the consignee not having consented to such delivery and not being at fault brought this suit to recover the value of the lime.

The case was submitted upon an agreed statement of facts, and the only question to be determined is as to whether or not the provision of the bill of lading, that the amount of loss or damage should be computed on the basis of the value of the property at the place and time of shipment, is a valid provision, binding upon the parties. If that provision is not valid, the judgment of the municipal court for $205.97, the value of the property at the place of destination and time of delivery, is correct; and if said provision is valid then the judgment of the lower court should have been for $121.72, the value of the property at the place and time of shipment.

The provision of the bill of lading in question is as follows:

“The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including the freight charges, if paid.”

This provision was hot agreed to in consideration of a reduced freight rate, nor was the freight rate based upon the value of .the goods.

The misdelivery of the goods, when neither the shipper nor consignee were at fault, was a conversion of the property by the carrier, 'and but for the above provisions of the bill of lading the carrier would be liable, at common l>aw, for the value of the goods at the place of conversion, which was the place of delivery stipulated in the bill of lading.

The delivery to another was either knowingly wrongful or plainly the fault and negligence of the carrier, and in a shipment of the character shown in this record it is against public policy to permit the carrier to limit his liability, in whole or in part, for the loss occasioned by his negligence or wilful act:

“1. "Where a common carrier claims immunity for the loss of goods with which he had been intrusted, on the ground that such immunity is. secured by a special agreement, the burden is on him to prove that the loss was occasioned without his fault.
“2. The only effect of such an agreement is to relieve the carrier from the liabilities imposed by the common law where he is free from fault or neglect.” Union Express Co. v. Graham, 26 Ohio St. 595.
“Where the action against the carrier is to recover on his common-law liability for losses occurring at the point of delivery, after the transit is ended, but before notice of delivery to the consignee, and the defendant claims exemption from such loss by virtue of a condition of the bill of lading to that effect, he must aver and prove, not only that this condition was assented to, but that the loss happened without any fault or neglect on his part, and the failure to establish such assent or show due and proper care to prevent the lass, entitles the plaintiff to •recover.” Gaines v. Union Transportation & Ins. Co., 28 Ohio St., 419.
“A common carrier is liable for the value of the goods lost through its negligence, notwithstanding the bill of lading provides that the carrier shall not be liable beyond an amount, named therein, when it is understood by the parties that the sum so agreed on is less than the value of the goods. Such an agreement can at most cover a loss arising from some cause other than the negligence or default of the carrier or his servants, and the rule of damages is the same, although less is charged and paid for the transportation than when the exempting clause is omitted.” United States Express Co. v. Backman, 28 Ohio St., 144.

It is true that in Ohio, as elsewhere, in cases where the loss was not occasioned by the wilful act or negligence of the carrier, an agreement fixing the amount of recovery in case of loss, entered into in consideration of a reduced freight rate, has been upheld. Such was the case of Baltimore & O. Ry. v. Hubbard, 72 Ohio St., 302 (74 N. E., 214), where the court pointed out that the provision in that case was not a stipulation to exempt from liability for negligence. The same principle is applied in Pennsylvania Co. v. Shearer, 75 Ohio St., 249 (79 N. E., 431; 116 Am. St., 730; 9 Ann. Cas., 15).

But we hold that the doctrine of these cases does not apply where the loss is occasioned by such wilful act or gross negligence of the carrier as amounts to a conversion by him, and where there was no reduced freight rate granted as a consideration for the stipulation

Wev are the more readily led to this conclusion by a consideration of the growth and development of public policy in reference to this general subject as shown by the decisions of the United States courts, the courts of the various states, and the laws passed by Congress and the Legislature of Ohio. Before there was any statutory enactments on the subject the provision involved in the case at bar was upheld in many cases, and even after there was legislation by Congress the Interstate Commerce Commission approved such a provision, particularly where there was a reduced freight rate to support it. which led to further legislation by Congress, and recently the Interstate Commerce Commission on its own motion made another investigation on the subject, and, “upon investigation of all the facts of record and of the common law affecting bills of lading, its modification by federal statutory law, and the duties and powers of the commission thereunder,” found -that the provision here in question was unlawful and void in respect to property not shipped under rates dependent upon declared or agreed values, as in the case at bar.

This ruling is supported by many well-reasoned cases, one of which is the case of M’Caull-Dinsmore Co. v. Chicago, M. & St P. Ry., 252 Fed., 664, which was decided after the recent enactments by the United States Congress on the sxibjeet. In that ease, in view of the fact that the liability of the carrier would have been at common law the value of the goods at the point of' destination at the time when they should have been delivered, and in so much as that was the actual loss to the shipper caused by the failure of the carrier to deliver the goods at-that time and place, it was determined that the stipulation in question in a bill of lading was a limitation of the liability of the carrier and of the amount of recovery, and was, therefore, unlawful and void.'

In view of the federal legislation on the subject, the holdings of the United States courts thereafter, and the action of the Interstate Commerce Commission, if the shipment in the-instant case had been made from one state to another the validity of the provision in question would not be claimed. The desirability of uniformity in such matters is recognized as a matter of public policy in a recent case in the Supreme Court of Ohio, Erie Ry. v. Steinberg, 94 Ohio St., 189, 223 (113 N. E., 814; 1917 E Ann. Cas. 661).

Moreover, we think that this same public policy is indicated by the laws enacted by the Legislature of Ohio in recent years. Section 8993-1, G. C., provides that bills of lading for intrastate shipments shall contain certain provisions; See. 8993-2, G. C., provides that other terms and conditions may be inserted in such bills of lading provided they are not contrary to law or public policy; and See. 8994-1, G. C., provides that a carrier shall be liable for any loss, damage or injury to- the property shipped, and. that, “No contract, receipt, rule or regulation shall exempt, such common carrier, railroad, or transportation company from the liability hereby imposed.”

If the doctrine of the earlier cases in Ohio to the effect that a carrier can not, by contract, exempt himself from liability for full damages for loss occasioned by his negligence or wilful act, was in any degree modified by Baltimore & O. Ry. v. Hubbard, supra, and Pennsylvania Co. v. Shearer, supra, that doctrine is restored by the above acts of the Legislature, and the public policy of the state is thereby established.

It is not necessary to determine the effect of such a provision in. a case where the loss was not occasioned by the gross fault or neglect of the carrier. We hold that the provision in question, as applied to the facts of this ease, where there was no reduced freight rate and the loss was occasioned by the gross negligence of the carrier, is contrary to the public policy of the state, as evidenced by the acts of the Legislature and the decision of the courts-of the state, and the court below was right in not enforcing it.

Judgment affirmed.

Duntjáp and Vickery, JJ., concur.


author: Dunlap, J.

text:
    SUBCONTRACTORS’ LIENS UNDER THE MECHANICS’ LIEN LAW.;
    Court of Appeals for Cuyahoga County.
    Gannon et al v. Potter, Teare & Co.
    Decided, March 20, 1919.

      Mechanics’ Liens — No Privity Between Owner and Subcontractor Prior to the Mechanic’s Lien Law — Effect of Subcontractor’s Failure to File Notices — Material Furnished Direct from Workshop or Factory■ — Omission of Name of Materialman — Invalid Affidavit.

    1. Prior to the enactment of the mechanics’ lien law no privity of contract existed between a principal owner and a subcontractor or materialman who furnished labor or material to a principal contractor, and hence a subcontractor could not maintain an action against an owner for labor and materials.
    2. The amendment to Section 8312, General Code (106 O. L., 522), providing that the failure of a contractor to furnish affidavits required by the mechanics’ lien law should not be a bar or defense in any action to collect claims after the sixty days for filing liens had expired, does not permit suit by a subcontractor who has failed to file the notices required by such law.
    3. Since Section 8328-8, General Code, declares the mechanics’ lien law to be a remedial statute which is to be liberally construed, a valid lien is established by a subcontractor who had furnished materials from his own workshop or factory and paid for the same, although his affidavit does not state such facts or set forth the names of any materialmen, but merely recites “paid in full” in the space provided for the names of materialmen.
    4. Where a materialman has in fact furnished material, but his name is omitted from the affidavit by a subcontractor, such omission is fatal to the creation of a lien in favor of such subcontractor.
    5. An affidavit which contains the name of the subcontractor only at the beginning and end thereof, -but elsewhere contains the name of the party not seeking to perfect a lien, is not executed in compliance with the law and is equivalent to no affidavit.

      S. V. McMahon and F. W. Zimmerman, for plaintiffs in error.

      Dorr E. Warner, for defendants in error.
   Dunlap, J.

Heard on error.

This canse conies into this court on .error to the municipal court of the city of Cleveland. That court rendered a decree finding that the cross-petitioners, defendants in error, had valid mechanics’ liens for the amount of their claims. The case was heard on an agreed statement of facts. The essential parts thereof will appear in this opinion.

The Gannons, plaintiffs in error, made a contract with the firm of Berry Brothers to construct a dw.elling on premises owned by them. Berry Brothers constructed the building and thereafter became bankrupt, owing these cross-petitioners for labor and material furnished in the construction of the building. All of the defendants in error filed mechanics’ liens for the amount of their claims. Before filing their liens each of the cross-petitioners paid in full for the labor and material used by them respectively in the construction of the building, and no lien was filed for labor and. material furnished to any of the cross-petitioners.

The legal questions involved in the case are, first, as to the necessity, for the validity of these liens, of the subcontractors’ affidavits or sworn notices, which are apparently required by See. 8312, G. C.; and, second, as to whether such affidavits or sworn notices as were given are sufficient under the law, assuming that they are necessary.

As to the first proposition it is to be noted that the cross-petitions filed in this case were brought to establish the validity of the liens; that is, to foreclose them. No action is brought on any one of them to collect by law, as other claims are collected, consequently the amendment to See. 8312, G. C. (106 O. L., 522), which provides as follows: “When the sixty days within which any liens can be filed have expired, and no liens on account of such improvement exists, then the failure of the contractor to furnish such affidavit as herein provided shall not act as a bar or defense in 'any suit or cause of action to collect any claim or claims by law as other claims are collected,” has no application, because these liens existed by force of the statute alone. They have no existence at common law,' and this statute can not be used to create a claim that is enforceable otherwise than as a lien. As a lien it must either stand or fall. There is no debt existing between the principal owper and the subcontractor or materialman outside of or independent from this lien. It is purely a matter in rem. This amendment was made necessary, or at least advisable, on account of some unfortunate words in the original section which apparently took away from the original contractor the right to sue for work done and materials furnished until the “statements provided for in this section are made and furnished in the manner and form as herein provided” even after the period in which liens for subcontractors and materialmen could be filed; a right which he had always enjoyed and which was undoubtedly taken away from him by inadvertence. In our view the amendment simply restored this right. It never gave, and never, was intended to give, the subcontractors and materialmen, who had no privity of contract with the owner, a right to sue independent of their lien. Indeed, we are not clear that such right is so claimed for this amendment in argument, but it is claimed that this amendment permits suit upon liens 'after the sixty-day period regardless of whether or not the notices required by the statute, and which are said to be prerequisite to a lien, are filed. As we have indicated, we regard this amendment as doing nothing but restoring a right which the contractor had apparently lost, and these claimed liens must stand or fall upon their own validity, which is to be determined by whether or not they substantially comply with the provisions of the statute.

In our opinion the statute requires the delivery of the .sworn statements provided for therein to the owner, showing the names of every laborer in his employ who has not been paid in full, and also showing the name of every subcontractor in his employ and of every person furnishing machinery, material 'and fuel, and giving the amount, if any, that is due or to become due to them or any of them for work done, or machinery, material or fuel furnished, etc., as provided for by the statute. We adopt this, then, as one of the legal premises necessary in reaching what we consider a logical conclusion of the questions involved in this ease.

This consideration disposes of the claims of J. J. Lynch and John Weenik & Sons, who we hold have no lien, because, according to the agreed statement of facts, they did not make out and deliver to the owner any affidavits at all, but relied solely upon filing their mechanics’ liens with the recorder. In our opinion the allowance of their liens by the court below was erroneous.

Now in the claims of Foley & Bean and H. C. Adams there were no subcontractors or materialmen. The agreed statement of facts shows that such materials as these two subcontractors used came out of their own shops, their own warehouses or stores. It is plain that no affidavit that could be presented could show the names of materialm.en under such a situation, if there were none to show. It is not argued or claimed that this impossible statement should have been made. It is only claimed that the affidavit or sworn statement should state that fact instead of stating, as the sworn statements in those cases did state, “paid in full.” This objection to these affidavits seems to us to be too technical and to be a fine splitting of hairs. If the statute were to be strictly construed, and if no liens could be obtained except by most strictly complying with each requirement,' then there would be force in the argument, but Sec. 8323-8 provides:

“This act is hereby declared to be a remedial statute and to be construed liberally to secure the beneficial results, intents and purposes thereof; 'and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for and to give jurisdiction to the court to enforce the same.”

Surely a liberal construction would allow an affidavit to be used such as used in this case; that is to say, assuming that it complied in all other respects with the statute and simply omitted the names of materialmen for the reason that there were no names that could be given; then the simple use of the words “paid in full,” while perhaps not the most available words to describe the situation, would not be misleading, and ought, therefore, nevertheless to be sufficient, and we feel that a different holding would violate the spirit of the law and especially the directions contained in the section just quoted. We therefore hold that the affidavits of the two subcontractors or materialmen just mentioned are not defective upon the grounds just stated, and that in that particular respect they sufficiently comply with the requirements of the law. We shall consider later the claim of H. C. Adams upon another objection raised.

With regard to the sworn statement supplied by the cross-petitioner Yates, in this particular respect a different situation exists. In his ease there was a materialman, and his name could have been inserted in the affidavit, but was not. We hold, following the 'construction placed upon this law by Judge Sater, of .the United States district court for the southern district of Ohio, in a case entitled, In the Matter of the Kinnane Co., 62 Bull., 37 (14 O. L. R., 532), that such sworn statement insufficient for the reason that it does not contain the name of the materialman.

It is to be mentioned that Judge Sater’s opinion in that case was rendered before amendment of the statute above quoted, but we think in that respect the statute was not changed by 'this amendment and that his ruling, if correct, still applies. It was, therefore, error on the part of the court to allow the claim of William Yates.

We must at this point go back and consider further upon another question, the claim of H. O. Adams, which we have held correct upon one of the objections raised. Another objection is raised to it which is of a very peculiar nature. The scrivener who prepared the affidavit in that case evidently prepard the affidavit both of Foley & Bean and H. C. Adams, and the H. C. Adams affidavit is a carbon copy of the Foley & Bean affidavit, but all of the body of the affidavit, excepting only the opening, which changes the name from Foley & Bean to H. C. Adams, is identical with the Foley & Bean affidavit, and as an illustration the part of the affidavit which relates to materialmen says as follows:

“Said affiant further says that the following shows the names of every persons furnishing machinery, material or fuel to Foley and Bean."

Indeed, in every place where the name “H. C. Adams" should be, the name “Foley and Bean" appear, excepting at the end of the affidavit, where it is signed by IT. C. Adams. We are forced to hold that this affidavit does not in any respect comply with the provisions of the law; that it is in fact equiv-lent to no affidavit at all; and that for that reason the lien of Ii. C. Adams should not have been allowed by the court below, and its allowance was error.

We have now disposed of the claims of each of the cross-petitioners, finding that the court erred in the allowance of all of the claims excepting only in the allowance of the lien of Foley & Bean. We therefore reach the conclusion that this judgment should be reversed and the cause remanded to the municipal court with instructions to disallow the claims of H. C. Adams, William Yates, John Weenink & Sons and J. J. Lynch, and to allow the claim of Foley & Bean.

Judgment reversed, and cause remanded.

Washburn and Vickery, JJ., concur.


author: Richards, J. Kinkade, J.

text:
    LIABILITYfcFOR)EXISTENCE OF A NUISANCE.
    Court of Appeals for Wood County.
    Perrysburg Banking Co. v. Deshler (Vil.).
    Decided, March 10, 1919.

      Nuisance — Injuries Resulting from — Holder Without Knowledge of Legal Title to the Premises — Not Liable for Claim for Damages Settled by the Municipality.

    A hank which has never been in possession of real estate nor exercised any dominion over it, but holds the legal title thereto for the mere purpose of securing an indebtedness owing to it and has no knowledge of the existence of a nuisance thereon, is not required to reimburse a municipality for damages for personal injuries which the municipality has been compelled to pay by reason of the existence of the nuisance.

      Thomas L. Gifford and Fries &■ Hatfield, for plaintiff in error.

      W. W. Campbell, Fred Gribbel and B. W. Cahill, contra.
   Richards, J.

Heard on error.

On March 19, 1914, Beatrice A. Cox, a child then about seven years of age, was injured on Keyser avenue in the village of Deshler, while passing along a sidewalk. In an action brought to recover damages therefor, she recovered a judgment against the village for $500.

The present action was ¡brought by the village against the Perrysburg Banking Co., which is claimed to have been the owner of the property at the date of the injury and to have been responsible for the defective condition, to reimburse the village for the amount of said judgment and costs and for $150 attorneys’ fees incurred in defending the action.

The case was tried to the court without the intervention of a jury, resulting in a judgment in favor of the village and against the banking company in the amount of $860.26.

We have .examined all of the errors claimed to exist in the record, but find it necessary in this opinion to discuss only one of them, as the decision on that assignment of error will necessarily dispose of the whole controversy.’

One of the defenses in the answer of the Perrysburg Banking Co., is that it was not, at the time of the injury of Beatrice A Cox, the owner of the property, and never had been such owner, but that it had the mere legal title to the property, as security for an indebtedness of $1,120 owing to it, and that therefore it is not liable,, in any event, for the existence of the claimed defect.

It appears from the record that the Sibert Mercantile Co. became the owner of this property in the year 1910 and continued to occupy and use the same for business purposes. The Sibert Mercantile Co. was indebted in the amount of about $9,000, which was secured toy sundry mortgages on this property, one of the mortgages in the amount of $2,000 being held by the Perrysburg Banking Co, An action in foreclosure was commenced by one of the mortgagees against the Sibert Mercantile Co., making other lienholders parties defendant, and such proceedings were had in that case that a decree was rendered finding the amount due the various lienholders, and the property was advertised to toe sold at sheriff’s sale. Immediately before the day of sale, an agreement was made whereby the Sibert Mercantile Co. borrowed $8,000, giving a mortgage to secure .the same upon the property, and as this amount was insufficient to pay the entire indebtedness, it agreed with the Perrysburg Banking Co., in consideration of $1,000 paid to the bank on its claim, to convey the property to Thomas L. Gifford, as trustee. This transaction was carried out, a deed made to Thomas L. Gifford, as trustee, for the consideration of $1 named therein, and a written declaration of trust was executed by the trustee, showing the terms under which he held the conveyance of the property, these terms being, in substance, that upon the payment of the balance of the indebtedness due to the Perrysburg Banking Co., within one year from the date of the deed, which was April 19, 1912, the trustee would re-convey the property to the Sibert Mercantile Co., but in default of such payment within the time named, the trustee agreed to convey the property to the Perrysburg Banking Co. The amount remaining due the bank was not paid within the year and on the expiration of the time named, Gifford, as trustee, in consideration of $1, executed a deed of the property to the Perrysburg Banking Co., which deed bears date of April 21, 1913. All these deeds were placed on record.

The Sibert Mercantile Co. continued all this time to occupy the premises. The consequences flowing from possession are stated in the following terms in 20 Ruling Case Law, 352:

" It is a general rule of law that the possession of real property is a fact putting all persons on inquiry as to the nature of the occupant’s claims as well as the claims of the person under whom he occupies.”

So far as the record shows, the bank never paid any taxes or insurance, or made any repairs on the property, or exercised any act of dominion over the same in any manner. Neither does the record disclose that the bank ever received any rent for the property or expected to receive any.

We have no hesitancy in reaching the conclusion that the device adopted of securing the indebtedness to the bank left the bank in the position of a creditor of the Sibert Mercantile Co., and the whole transaction must be construed to be, in fact, a mortgage to secure the indebtedness held by the bank.

The answer of the bank alleges that the transaction was so construed by the court of appeals of Henry county in certain litigation pending therein. That decision can not be res adjudicada in this case, for the reason that the village of Deshler was not a party to the proceedings. Nevertheless we reach the same conclusion as was announced by the court of appeals in that action.

The defect which caused the injury to Beatrice A Cox arose from a stairway leading to an upper story, along the side of the building qu this property. This stairway projected some two feet over the sidewalk, and from the outer edge of the stairway a portion of the railing, consisting of a strip of iron about two inches wide and from one-eighth to one-half an inch thick, and several feet long, had become detached at the lower end, and this end projected out still further over the sidewalk, and the iron being still attached at the upper end, the lower end could be swung back and forth over the walk, and was at times out over the walk a considerable distance and at other times remained against the side of the stairway. This condition had existed for some six or eight months prior to the injury to the child. The bank is located in the village of Perrysburg, which is situated in another county and approximately 30 miles distant from Deshler, and it does not appear' that it or any of its officers, ever had any actual notice of the defect. Without doubt a jury would be justified in finding that the condition existing amounted to a nuisance, and it is insisted that under the doctrine announced in Morris v. Woodburn, 57 Ohio St., 330, the bank is liable to respond to the village for the amount of damages recovered by the injured person and for the attorneys’ fees incurred by the village in making the defense. The case cited is explained and its application limited in Wilhelm v. Defiance, 58 Ohio St., 56. We can not, however, extend the doctrine, which is limited to an owner, so as to include one who has made a loan to the real and beneficial owner and has taken a conveyance merely for the purpose of securing the indebtedness, and where the transaction amounts merely to a mortgage for the purpose of securing the indebtedness. The bank exercised no act of dominion over the property and had no knowledge of the defect. It never had been in possession of the property, nor received any rents therefrom. It was in no sense the beneficial owner of the property. The doctrine announced in Morris v. Woodburn, supra, can not be applied to a case involving such circumstances.

The judgment which was rendered in the court of common pleas includes $150 attorneys’ fees, but the record contains no evidence showing the value of such services. In the absence of evidence, it is error to include an allowance for the amount of the attorneys’ fees.

The trial court declined to admit in evidence the written declaration of trust executed by Thomas L. Gifford, trustee. This instrument, when executed, having been submitted to the parties, was competent evidence and should have been received. However, the record contains no prejudicial error in this- respect as oral testimony was received showing the entire transaction.

Judgment reversed and cause remanded for further proceedings.

Chittenden, J., concurs.

Kinkade, J.

I concur in the judgment of reversal and in the opinion, except that part of the opinion which cites 20 Ruling Case Law, 352, .as applicable here. I can see no proper application in this case of the principle there announced.


text:
    RECOVERY OF AMOUNT PAID ON A FALSE CLAIM.
    Court of Appeals for Cuyahoga County.
    Burton v. Greif et al.

    Decided, March 3, 1919.

      Administrator — Payment of a False Claim By — Recovery Not Barred by the Filing of a Final Account.

    The settlement of the final account of an executor or administrator, which shows a false payment of a debt against the estate, no such debt having existed, is no bar to a subsequent action against such executor or administrator for the recovery of such money by one who is legally entitled thereto.
    Error.

      Bartholomew, Beeper & McGill and Florence E. Allen, for ■ plaintiff in error.

      Fadder & Woods, for defendants in error.

      Motion to require the Court of Appeals to certify the record in this case overruled by the Supreme Court, 'June 10, 1919.

   Washburn, J.

In January, 1918, Katherine Kurz Burton filed a petition in the common pleas court, in which she alleged that she was entitled, as residuary legatee, to a certain part of the estate of Katherine Hoffman, of which estate the defendant, William Greif, was the executor; that said executor in 1904 and 1905 wrongfully misapplied funds of said estate, and for the purpose of deceiving plaintiff and the probate court in reference to such misapplication of funds, filed an account in 1906 in the probate court in which he falsely and fraudulently took credit for having paid a debt against the estate, which did not exist, by which means funds of the estate belonging to plaintiff were wrongfully and fraudulently diverted and lost; that said account was duty approved by the probate court in December, 1906; and that plaintiff did not discover said fraud until 1917. The prayer of the petition is for judgment for damages caused by said fraud.

There are four other causes of action of a somewhat similar nature set forth in the petition.

To this petition a demurrer was filed for the reasons, as stated therein, that it appeared on the face of the petition: first, that the court had no jurisdiction of the subject of the action; second, that several causes of action were improperly joined; third, that the action was not brought within the time limit for the commencement of such action; and, fourth, that the petition did not state facts sufficient to constitute a cause of action.

The court below overruled the demurrer as to the second and third grounds, and sustained the demurrer as to the first and fourth, and it appearing that the plaintiff did not desire to amend or plead further judgment was rendered in favor of the defendant.

That judgment is now before this court for review on error proceeding's duly prosecuted by the plaintiff below.

We fail to see wherein the petition does not state a cause of action to recover damages for a fraud practiced by the defendant. The only claim made in this behalf, so far as we can see, is that insomuch as the petition alleged that the fraudulent account was approved by the probate court no right of action could grow out of the transaction until the account was attacked and set aside. This contention gives to the approval of the account an altogether too all-embracing and conclusive character. The approval of such an account is not an adjudication of the rights of a person who has a right to a distributive share of an estate and has not been paid. The statute is merely for the purpose of perpetuating evidence of payments and is not intended as a means by which a right to receive payments is adjudicated.

“The settlement of the final account of an executor or administrator showing the payment of money to a person not entitled thereto, is no bar to a subsequent action against him for the recovery of the money by one who is legally entitled to the same.” Banning v. Gotshall, 62 Ohio St., 210 (56 N. E., 1030).

Especially would this be so where it was claimed that the executor filing the account practiced a fraud not only upon the plaintiff but also upon the probate court.

We see nothing in the mere approval of the account which prevents an action to recover damages for the fraud practiced upon the plaintiff and the court, by means of which the approval of said account was obtained and the property of the plaintiff misapplied, and, if a cause of action is stated, we do not see how there could be any question about the common pleas court having jurisdiction to try the case.

We think the court below was right in its ruling on the question of the statute of limitations. The statute does not begin to run until the discovery of the fraud, which the petition alleges was discovered in 1917, and the petition was filed in January, 1918; and likewise the court was right in overruling the demurrer based on the ground that several causes of action were improperly joined.

For error in sustaining the demurrer on the first and fourth grounds thereof, and in rendering judgment for the defendant, the judgment is reversed and the cause remanded.

Judgment reversed, and cause remanded.

Dunlap and Vickery, JJ., concur.


author: Siiohl, J.

text:
    ADVERSE POSSESSION OF A RAILWAY RIGHT-OF-WAY.
    Court of Appeals for Warren County.
    Schenck v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co.
    Decided, May 28, 1919.

      Court Clothed with Function of a Jwry — •Where Both Parties Request a Directed Verdict — Prescriptive 'Right-of-Way — Color of Title not, Essential to — Adverse Possession of a Right-of-Way — Non-user Essential to Abandonment of — Use of Right-of-Way for Other than Main Trades.

    1. Where, at the conclusion of all the evidence in the case, each party requests the court to instruct a verdict in his favor, the parties thereby clothe the court with the functions of a jury. Where plaintiff does not request that the case go to a jury upon the facts, the verdict rendered under the instruction of the court will not be set aside unless clearly against the weight of the evidence.
    2. It is not necessary to the acquisition of a right-of-way by prescription that the occupancy be under color of title.
    3-, The possession of a right-of-way which was not permissive, but continuous, open, notorious and exclusive, was necessarily adverse.
    4. To constitute an abandonment of a right-of-way there must be nonuser together with an intention to abandon. The intention can be established by unequivocal and decisive acts clearly indicative thereof.
    5. Where a railroad moves its main trades from a right-of-way, but continues to use the right-of-way for railway purposes in storing cars and for access to certain stock pens, non-user is not established.

      Patrick Gaynor, for plaintiff in error.

      H. N. Quigley and Eltzroth <& Maple, contra.
   Siiohl, J.

Heard on error.

Plaintiff in error, Cornelia B. E. Scbenck, who was likewise plaintiff below, brought an action against the defendant for occupying a strip of land, us,ed by it for railroad purposes,' from March 29, 1913, to the date of the petition in June, 1913.

The defendant below .pleaded, first, the general issue; second, title in it by prescription; and third, want of jurisdiction.

The record shows that in 1866 one C. A. Brown, the then owner of the property in question, gave a mortgage to R. P. Evans, which mortgage remained unpaid until 1872. In 1871 Brown executed a quitclaim deed to a right of way 100 feet wide to the Cincinnati & Springfield Railroad, which contained the proviso: “Whenever the said railway company shall abandon the project of constructing said railway, then this release shall be null and void.” In 1872 Evans brought suit to foreclose the mortgage. The parties in interest having appeared, a sale of the property was had under orders of the court, and the property was sold unincumbered. The railroad therefore was without any right in the premises, but it and its successors continued to hold, occupy and use them until 1911, a period greatly in excess of the prescriptive statutory period. In 1911 the railroad relocated part of its line between Dayton and Cincinnati, and removed its tracks, ties, etc., from the land in question, which is within the limits of Franklin, Warren county. However, it left two sidetracks on the land, using them to store cars and to load stock in a pen there. The land was always used for railroad purposes. In 1913 part of the main line was destroyed in the flood and the defendant railroad company, the successor of the Cincinnati & Springfield Railroad, returned and relocated its main tracks on the premises in controversy, in substantiaEy the same place that they had been originally constructed.

At the close of all the evidence the defendant renewed a motion for an instructed verdict, which the court then granted.

The record shows:

“At this point, the plaintiff moves the court to instruct the jury that plaintiff! is entitled to a verdict, and the only thing that they must consider is the amount of damages to which plaintiff is entitled.”

They thereby submitted their case to the court.

Where, at the conclusion of all the evidence in the case, each party requests the court to instruct a verdict in his favor, the parties thereby clothe the court with the function of a jury. First National Bank v. Hayes & Sons, 64 Ohio St., 100 (59 N. E., 893). The plaintiff did not request to go to the jury upon the facts, and the verdict rendered by the jury under the instruction of the court will not be set aside by the reviewing court unless cfearly against the weight of the evidence. This is not inconsistent with the rule in Gibbs v. Girard, 88 Ohio St., 34, because the right of the plaintiff to a determination by the jury was waived by her when she joined in the request that the matter be decided by the court. Perkins v. Putnam Co. (Comrs.), 88 Ohio St., 495.

On the facts shown in record, after the sale of the property in question free from incumbrances, the railway was without right in the land. It is not necessary to the acquisition of a right of way by prescription that the occupancy be under color of title. Paine’s Lessee v. Skinner, 8 Ohio, 159; McNeely v. Langan, 22 Ohio St., 32, 37; Humphries v. Huffman, 33 Ohio St., 395, 403, and Smith v. Pittsburg, C. C. & St. L. Ry., 5 C. C. (N. S.), 194, 198.

The possession of the railroad was not permissive, but was continuous, open, notorious and exclusive. It was. necessarily adverse to the purchaser at the foreclosure sale. Pavey v. Vance, 56 Ohio St., 162; 2 Corpus Juris., 128, and James v. Indianapolis & St. L. Ry., 91 Ill., 554.

The conduct of the defendant does not establish an abandonment of the right of way. That would require non-user together with an intention to abandon. The intention could be established by unequivocal and decisive acts clearly indicative thereof. Cleveland & Pittsburgh Ry. v. Ward, 23 C. C. (N. S.), 465; 33 Cyc., 221; People v. Southern Pacific Co., 172 Cal., 692, 700 (18 Pac., 177); Stannard v. Aurora, E. & C. Ry., 220 Ill., 469 (77 N. E., 254); Kansas City & S. E. Ry. v. Kansas City & S. W. Ry., 129 Mo., 62 (31 S. W., 451); Roby v. New York Central Ry., 142 N. Y., 176 (36 N. E., 1053); Townsend v. Michigan Central Ry., 101 Fed., 757, and 1 Corpus Juris., 8, 9.

Moreover, the record falls short of establishing a ease of non-user. The defendant was using the right of way for railway purposes in storing cars and for access to the stock pen, even though the main track had been moved. (Cleveland & Pittsburgh Ry. v. Ward, supra.) The plaintiff had never made an entry on the land after 1911. It remained separated from hers by a fence that stood continuously for over thirty-three years.

The judgment will be affirmed.

Cushing, J., concurs.

Hamilton, J., not participating.


author: Hughes, J.

text:
    WIFE NOT ENTITLED TO EXEMPTION IN CHATTEL MORTGAGED PROPERTY.
    Court of Appeals for Henry County.
    Patrick Donnelly v. William Lulfs et al.
    Decided, December 12, 1918.

      Husband and Wife — Exemption in Lieu of Homestead, — Hot Allowable to Wife from Property Covered by Chattel Mortgage.

    The wife is not entitled to five hundred dollars in lieu of homestead out of proceeds of sale on foreclosure of chattel mortgage given by husband on his property.

      Donovan & Donovan, for plaintiff in error.
    ' George S. May, O. E. Mosier, Fred Gribbell and Donovan é Warden, for defendants in error.
   Hughes, J.

There was taken into the custody of the receiver appointed in this cause, being an action to foreclose a chattel mortgage, the chattel property of the defendant Lulfs and, at a sale- ordered by the court, the property sold for $941.16.

There were three chattel mortgage liens and one judgment with execution lien, against the property. The wife, who signed none of the notes or chattel mortgages, demands $500 in lieu of homestead as exempt.

It is conceded by all parties that she is entitled to this exemption, if the liens above mentioned do not foreclose the same. It is also conceded by the parties that the first lien is Rothenberger Brothers chattel mortgage for $61.90. That the second lien is The International Harvester Company’s chattel mortgage for $274.60. That the third is the judgment and execution lien of The Corn City State Bank of .Deshler of $240.42; and that the fourth lien is Patrick Donnelly’s chattel mortgage of $929.20.

The question presented to this court is whether or not the wdfe is entitled to an exemption in lieu of homestead, notwithstanding her husband has executed chattel mortgages to the full value of the property.

The court below ordered the distribution of the fund in the following,order: First, the payment of costs. Second, $500 to the wife of the defendant Lulfs in lieu of a homestead, and the balance to be distributed to the defendants according to priority of their liens as above set forth.

We find no authority which would prevent a husband from making an absolute conveyance or incumbrance of his chattel property without joining with him in the transaction, his wife. Neither do we find any authority which would preserve to her in such circumstances, any of such chattels as exempt from the operation of such mortgages.

We do not here make any reference to any particular items of chattel property that are particularly exempted, because it is conceded by all parties that none of the chattels involved herein were of such character.

We are constrained, therefore, to hold that this allowance to the wife, prior to the payment of the chattel mortgage, was erroneous. 29 O. S., 523, 25 O. S., 549.

It will be observed, however, that the third lien, which .is superior to the Patrick Donnelly chattel mortgage lien, is the Corn City State Bank’s judgment lien of $240.42.

There can be no question but that the exemption claim of the wife in this case is superior to this judgment lien. The distribution should be, therefore, as follows:

First. The payment of costs.

Second. The claim of Rothenberger Brothers.

Third. The claim of The International Harvester Company.

These three items should then be added, and taken from the proceeds of sale. The Corn City State Bank judgment would then be entitled to participate in any remainder after the $500 in lieu of homestead was set aside to the wife of the defendant Lulfs. The claim of Patrick Donnelly, however, being for more than enough to consume the entire balance of the proceeds of sale and being superior to the claim for this exemption, there would be no fund left out of which any amount could be paid to Mrs. Lulfs. The amount then remaining should be applied to the Corn City State Bank judgment, and the balance should then be paid to the Patrick Donnelly claim. AVe make no further observation regarding other claims because it is apparent that this distribution more than consumes the proceeds of sale.

To clarify this opinion, it may be illustrated as follows: Assuming the costs to be $50; Rothenberger’s claim $61.90; The International Harvester Company’s claim $274.66, these being the first claims paid in their order and amounting to $386.50; deducting this amount from the selling pric.e of- the property, $941.60, would leave $554.66. Taking from this amount, the $500 in lieu of homestead, would leave $54.66, the amount to be applied on The Corn City State Bank judgment, and this item of $54.66, added to the distribution made in the three first items would amount then to $441.16 which, taken from the proceeds of sale, would leave $500 to be paid on the Patrick Donnelly claim. In other words, assuming that the items of costs and the amounts of the various claims are stated correctly, the distribution would be as follows: Costs, $50; Rothenberger Brothers, $61.90; International Harvester Company, $274.60; Corn City State Bank, $54.66; Patrick Donnelly, $500. See, 31 O. S., 273.


text:
    ; STAY OF A PROCEEDING UNTIL COSTS ARE PAID.
    Court of Appeals for Lucas County.
    'Judges Shohl, Hamilton and Cushing, of the First District, sitting by designation in place of the Judges of the Sixth District.
    State, ex rel Kohn, v. Manton, Judge. Kohn v. Wheeling & L. E. Ry.
    Decided, June, 1919.

      Costs — Adverse Party May Ash for a Stay of Proceedings until Paid, 'When — Discretion of Trial Judge in Granting Such an Order— Mandamus.

    1. Where in a former action, between the same parties and in the same cause, costs have been adjudged against a party, the court upon motion of the adverse party may grant an order staying a subsequent proceeding until such costs are paid.
    2. The granting of such an order lies in the sound discretion of the court and is reviewable on error.
    3. Where a party against whom .such an order has been issued fails to. prosecute error proceedings therefrom, a writ of mandamus will not lie to compel the trial court to proceed contrary to the discretion already exercised by such court.

      Charles A. Thatcher, for relator in cause No. 804.

      Allen J. Seney, Pros. Atty., and Nolan J. Boggs, Asst. Pros. Atty., for respondent.

      C. A. Thatcher and G. B. Keppel, for plaintiff in error in cause No. 805.

      G. A. Seiders, for defendant in error.
   Cushing, J.

In mandamus and error.

In cause No. 805 above, plaintiff in error seeks to reverse an order of the common pleas court of September 17, 1918, staying proceedings in said cause until the costs in cause No. 75535, common pleas, are paid.

Leroy H. Kohn filed an action in the common pleas court, docketed as No. 75535, against Wheeling & L. E. Ry. to recover a judgment for negligence of the company. The case was tried to a jury. It disagreed and a second trial was had. The plaintiff recovered a judgment of $5,000 against the railway company. This judgment was reversed by the Court of Appeals for Lucas county, and the case came on for trial for a third time before John P. Mantón, judge of the court of common pleas for Lucas county, and a jury. At the trial, William Lawler was called as a witness on behalf of the plaintiff. He was examined in chief, cross-examined, ■ re-examined and dismissed. Plaintiff recalled Lawler, and counsel stated that he desired to correct the testimony he had given on cross-examination. On objection by counsel for the railway 'company, and statements by counsel for plaintiff, the court asked the witness at two different times whether he desired to correct anything in his testimony. To each inquiry Lawler answered “No.” Kohn then dismissed his action without prejudice to a future action.

August 12, 1918, a motion was made to stay proceedings in cause No. 77967 until the costs taxed against Kohn in cause No. 75535 were paid. The motion- was granted.

September 17, 1918, it was made to appear to the court that the order of August 12, 1918, had not been entered on the journal. On September 17, 1918, the court stayed proceedings as of August 12, 1918.

November 12, 1918, Judge Mantón signed and allowed a bill of exceptions to this order in cause No. 77967. The bill of exceptions has never been filed, in the court of appeals. Neither the original papers nor a transcript of the docket and journal entries have been filed in the court of appeals. The petition in error was filed in the court of appeals December 19, 1918. This was ninety-two days after the order of September 17, 1918. There is nothing before this court to review on error.

The order of Judge Mantón in staying proceedings until the costs were paid was the exercise of a discretion vested in the court, and reviewable on error. Arnold v. Pittsburg Coal Co., 5 N. P. (N. S.), 329. That such orders are reviewable on error as affecting a' substantial right of litigants has been decided in both Indiana and New, York.

"The only penalty we know of for the bringing and the voluntary dismissal of a civil action, including one of this class, is that the plaintiff shall pay all costs he has occasioned. ’ This, generally, he must do before he is authorized to renew his suit. While the costs of a dismissed action remain unpaid, the commencement of a subsequent suit for the same matter * * * will be stayed by the court upon a proper application until paid.” Wait v. Westfall, 161 Ind., 648, 651 (68 N. E., 271).
"Where costs have been adjudged against plaintiff in a former action in the Supreme Court between the same parties for the same cause of action, defendants were entitled to an order staying subsequent proceedings until such costs wer.e paid, in the absence of any proof authorizing the court to deny a motion for such stay in the exercise of its discretion.” Lederer v. Krausz, 90 N. Y. Supp., 402.

In cause No. 804, wherein it is sought to mandamus Judge Mantón to hear cause No. 77967, this action can not be maintained. As we have pointed out, the discretion vested in Judge Mantón was exercised in his stay of the proceedings. That order was reviewable. The plaintiff failed to prosecute error within the time provided by the statute. Section 12285, G. C., provides:

"The writ [mandamus] may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it can not control judicial discretion.”

These two eases were tried together. The court exercised discretion, and it now sought by mandamus to compel bim to proceed contrary to the discretion already exercised. This can not be done. The proceeding in error will be dismissed. The writ of mandamus wall be denied.

Petition in error dismissed.

Writ of mandamus denied.

Shoi-il and Hamilton, JJ., concur.


text:
    RACE DISCRIMINATION.
    Court of Appeals for Cuyahoga County.
    Francis Young v. F. J. Pratt.
    Decided, March 3, 1919.

      Civil Rights — Colored Man Refused Accommodation at a Restaurant— Whether he Applied for Accommodation in O-ood Faith Immaterial.

    In an action to recover a penalty under Section 12941, General Code, providing against racial discrimination in public places, good faith upon the part of such guest or patron is immaterial.

      E. E. Davis, for plaintiff in error.
    . David & Eeald, contra.
   Dunlap, J.

Heard on error.

The plaintiff in error, Francis Yonng, who was plaintiff below, brought this action in the municipal court to recover a penalty under Sec. 12941, G. C., also called the Civil Rights Act, for alleged wrongful discrimination, in that the defendant, F. J. Pratt, who was the proprietor of a restaurant, refused to serve plaintiff, a colored man, a meal, because of his color, thereby denying to him the advantages and privileges specified in said action. The trial resulted in a verdict and judgment for the defendant, and it is here sought to reverse that judgment.

There are two errors alleged, one upon the admission of evidence and the other upon the charge of the court. The two matters may be treated together, as the error, if there was any, can hardly be claimed if the charge of the court was correct.

The part of the charge complained of as .erroneous is as follows :

“Was he a tona fide guest or patron of that place for that purpose, and was he refused on account of his color? That is the issue for you to determine. If you do detei'mine that he was a tona fide guest and a parton of that place and was refused on account of his color, if you determine it by the greater weight of the evidence, then it will be your duty to find in his favor in a sum of not less than fifty dollars and in a sum not to exceed five hundred dollars. However, I charge you that in the event you find that the plaintiff in this action did not seek the public accommodation of this defendant as a tona fide guest or as a tona fide patron and went there solely and only for the purpose of attempting to obtain a refusal, solely and only for the purpose of stirring up litigation, then I say to you that he can not recover under this statute, because this statute was enacted for the sole and only purpose of protecting tona fide guests and patrons of public accommodation plaees and not for the purposes of financial benefit to any one who attempted to stir up litigation by the use of this statute.”

This novel doctrine of tona fides, so far as our own research, aided also by the diligence of counsel, discloses, has never before been charged or maintained in any reported case of a similar nature, and we hesitate to stamp so novel a doctrine with the seal of our approval.

The section of the statute under which this suit is brought is unambiguous, and a recovery under the same 'can not be made to depend upon the intent in the mind of the person seeking the accommodation. In our opinion, if such had been the intent of the Legislature in the passing of this law, the same would have been set out in appropriate words therein. We find no words in this statute that give a colorable right to a court to charge as was done in this case, and we think that to so charge was prejudicial error for which this judgment must be reversed.

Judgment reversed, and cause remanded.

Washburn and Vickery, JJ., concur.


text:
    DISCRETION OF COURT IN SETTING ASIDE A JUDGMENT DURING TERM.
    Court of Appeals for Cuyahoga County.
    Kornick v. Hahn, Administratrix.
    Decided, May 29, 1919.

      Judgment — Setting Aside of During Term Discretionary — Facts Justifying such Action.

    1. The setting aside of a judgment upon, motion filed during the term such judgment was rendered is a matter which rests within the sound discretion of the court, and is not subject to review unless an abuse of such discretion be shown.
    2. Where a judgment is rendered in the absence of one of the parties, ■and during the same term such party files a motion to set aside isueh judgment, showing to the satisfaction of the court that there is substantial merit in his claims, the setting aside of such judgment is not an abuse of discretion, even though such complaining party shows little merit in his excuse for his absence.

      Howell, Roberts & Duncan, for plaintiff in error.

      Locher, Green <& Woods, contra.
   Washburn, J.

In this ease a judgment was rendered in the court below, and, afterwards, upon a motion filed during.the same term, said judgment was set aside and vacated for reasons which the trial court found to be sufficient.

It is urged in this court that there was no good and sufficient reason for setting aside the judgment, and that the trial court abused its discretion in so setting aside the judgment.

There is a marked difference between the power of the court over its judgments during the term at which they were entered, and its power over its judgments when its action is invoked by an application filed at a term subsequent to the term at which the judgments were rendered.

In the former class of eases the court may act on its own motion, and its power is inherent, and its exercise is not controlled by statutory provision; while in the latter class of cases the procedure is entirely statutory and the power of the court depends upon and is controlled by the statute. In the former the court exercises a discretionary power; in the latter a statutory power, although in the exercise of the statutory power there is more or less discretion vested in the court.

Oases arising under the latter class are not controlling, and, indeed, are of little assistance in disposing of a case falling within the former class.

The record here presents a case of the former class, one in which, so far as this court is concerned, the controlling question is, does it clearly appear that the court below abused its discretion ?

In reviewing the action of the court in exercising during the term its discretionary power in setting aside a judgment, which was entered in the absence of one of the parties, there are two questions of prime importance to be considered:

1. The reason or excuse of the complaining party for his absence.

2. Whether or not the claims of the complaining party in the controversy have substantial merit!

'If the record discloses that there is substantial merit in the claims of the complaining party, and that in all probability a grave injustice has been done, the court’s action in setting aside the judgment and giving the complaining party a chance to be heard will not be considered an abuse of discretion, even though there is little merit in the excuse for his absence.

A consideration of the record in this case leads us to the conclusion that there is substantial merit in the claims of the party in whose behalf the court below exercised its discretion, and that it does not clearly appear that the court below abused its discretion.

Judgment affirmed.

Dunlap and Vickery, JJ., concur.