text:
    BOY ELECTROCUTED BY INSULATED WIRE.
    Court of Appeals for Richland County.
    John Wolf, as Administrator of the Estate of George Wolf, Deceased, v. S. N. Ford, as Receiver of the Mansfield Railway, Light & Power Company.

    Decided, April 2, 1917.

      Negligence—Boy Who Had Climbed a Tree on Outside of Sidewalk Not a Trespasser—Proximate Cause of His Death From Coming in Contact With an Uninsulated Electric Wire—Charge of Court.

    1. A hoy who, while at play, climbs a tree standing between the sidewalk and the curb of the street is not a trespasser as against an electric railway company, one of whose wires passes between the branches of the tree.
    2. The maintenance of a wire of high voltage, uninsulated at the point where it passes through a tree standing on the edge of the sidewalk, must be regarded as the proximate cause of the death of a boy who was electrocuted by coming in contact with it in climbing the tree while at play.

      'Brucker, Voegele <& Henkel, for plaintiff in error.

      W. 8. Kerr and McBride & Wolfe, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, July 3,1917.

   Houck, J.

Error to tbe Court of Common Pleas of Ricbland County. The material facts necessary for a proper inquiry as to the errors complained of in this case are as follows:

That on the 13th day of August, 1915, George Wolf, the plaintiff’s decedent, was about eleven years of age; that on the evening of said day, after dark, he was playing with other boys a certain game, and in so doing climbed into a shade tree in front of the property of William Schwier, located at No.- 297 East Fourth street, Mansfield, Ohio. .Said tree was located between the sidewalk and curbing along said street. Some of the limbs of the tree were within four or five feet of the ground, and on the evening in question there was, and had been for some days prior thereto, a large number of brick piled around the body of said tree within two or three feet of the lower limbs. That on the aforesaid 13th day of August, 1915, and for a long time prior thereto, one of the electric light wires belonging to the. defendant • company, and carrying a high voltage, was located in said tree about, twenty feet from the ground, and about three feet from the body of the tree; that at the particular point where said wire was about three feet from the body of the tree the wire had become uninsulated, and was so on said 13th day of August, .1915, and had been in such condition for a period of more than six weeks prior thereto; that .the decedent at no.time.knew of any impairment in said wire; that on said day and at the time aforesaid the decedent climbed into said tree,-; and when he had reached the place where said wire passed through the limbs of the tree, about twenty feet from the ground and about threé feet' from’ its body, the decedent came in contact with said wire where it was uninsulated, and by reason thereof the electric current from said wire passed through his body causing .instant death.

The case before us for review was submitted to a jury upon the evidence offered by the parties to the suit, and under the proven facts and the law, as given to the jury by the trial judge, it returned a verdict for the defendant, and the court, after overruling a motion for a new trial, entered a judgment on the verdict.

From- a careful examination of the bill of exceptions in this case with reference to the evidence admitted and rejected by the court, below, and from the propositions of law given to the jury, .as.well as those refused, bearing upon the question as to whether or not the decedent was a trespasser, we are bound to find that from early in the trial in the’ court of common pleas, and to the end thereof, the learned trial judge was of the opinion that the decedent was a trespasser in fact and in law, .and was not entitled to a judgment against the defendant.

The trial court in the general charge to. the jury gave the following:' .....

“'Then you will further inquire as to why plaintiff’s intestate was in said tree; and if you further find that the decedent was in said tree without invitation or permission on the part of the defendant company, and that defendant company had no reason to believe or anticipate that children would climb into said tree and come in contact with said wire, and that the decedent knew that the wire running through said tree was the property of the defendant company, and you find that plaintiff’s intestate took hold of said wire, and came in contact with it, knowing it was the property of the defendant company, I. charge you that plaintiff’s intestate, George Wolf, by his own act made himself a trespasser against defendant company, and if you so find, plaintiff can not recover.”

From the language thus used it will be seen that the court assumed that the decedent had no right, as a matter of law, to be-in said tree, as plainly indicated by the following language: “Then you will further inquire as to why plaintiff’s intestate was in said tree.”

We think that the decedent had a legal right in the tree; that the tree was not the property of the defendant company, and therefore, so far as the decedent was concerned, he had a clear right to be just where he was at the time he met his death. True, the defendant company was within its rights when it placed the wire in question in the tree, but when it did so the burden of keeping it free from danger, properly insulated, and clear from any defects that the law’requires of those who own or operate such dangerous agencies as an electric wire charged with a high voltage of electricity, continued with the company, and this duty vested in it at the time the decedent came in contact with the wire.

The language used in'said charge further states that “if the decedent was in said tree without invitation or permission on ' the part of the company, then no recovery can be had.” This instruction would have been proper if the tree had been on the lands of the company and owned or controlled by it, but such is not the fact, as conceded by the parties hereto. We think this instruction is and was misleading, and not responsive to any issue raised by the pleadings and the facts, especially by the-proof :in the ease, and therefore is prejudicially erroneous- -to. the rights of the plaintiff in error.

The court further charged the jury that “in order to charge defendant company with liability you must further find that defendant company knew that children were in the habit of playing in the streets and climbing into the trees,-and had reason to believe or anticipate that children might come in contact with said wire by climbing into the trees, and be injured thereby. If you fail to so find your verdict will be for the defendant.”

We find this part of the charge erroneous and prejudicial to the plaintiff in error,, because it easts upon the plaintiff the burden of proving actual knowledge upon the part of the defendant of the fact—if it be a fact—that children were in the habit of playing in the streets and climbing into the trees, and by reason thereof might come in contact with the wire in question. We hold that the degree of proof required by this instruction .is greater than the law requires under the proven facts and circumstances in the case.

'The plaintiff below (the plaintiff in error here) requested the court to charge the jury as follows, but it was refused:

‘ ‘ I charge you, as a matter of law, that it was the duty of the Mansfield Eailway, Light & Power Company, under the circumstances shown in this ease, to have anticipated that boys of tender years would climb into trees of the size of the one in question, and that if the Mansfield Eailway, Light & Power Company maintained lines of wires through such trees, and through it they conveyed currents of electricity of high voltage, dangerous io life, it was the duty of the company to so insulate and otherwise protect said wires so as not to cause injury to others who are not trespassers coming in contact therewith from injury.”

In our judgment the law, as embodied in the above request, is sound, and clearly pertinent to. a proper determination of the facts by the jury, as shown by the evidence in the case. Taking this view of it and without further discussing the same we find the trial judge was in error, to the prejudice of the plaintiff in error, when he refused to give to the jury said request.

In the summing up of the case before us on the state of facts as presented by the record, and admitting that plaintiff’s intes-. tate was lawfully in this tree when he met his death, and that defendant had a right to the use of the tree for its electric light wires, yet neither while in the exercise of these rights could escape the legal liability resulting from a failure of one to perform a duty which the law requires and in failing to do so resulted in the injury of the other. Applying this rule, which to us seems sound, to the facts in the present case, how stands the issue ? The defendant company was bound to exercise the highest degree of care in transmitting the electric current through its wire, in order to protect the lives and save from injury those who without negligence or fault on their part might come in contact with it; and to do this it was necessary that such wire be properly insulated, which in this case was not done, and as a result of such failure on the part of the defendant company plaintiff’s intestate, George Wolf, came to his death.

What negligent act on the part of decedent was done by him that caused his death? We fail to find any. We are bound to conclude from the very nature of the business of an electric company, which in the conduct of its business uses highly charged wires, that it owes a legal duty, outside of and irrespective of any contractual relation, towards all persons who are engaged in a lawful business, or are in a place where they have a lawful right to be, and are liable to come in contact with the wires, to see that they are properly insulated.

It being the duty, and incumbent upon the defendant company to keep the wire in question properly insulated, we are of the opinion that George Wolf, at the' time he climbed into said tree, and at the time he came in contact with said wire, had, as a matter of law, the right to assume and believe that the wire was properly insulated.

This leads us to inquire, what was the proximate cause of the death of George Wolf? Our answer, based upon the facts and the law governing them, is and must be, the failure of the defendant company to have said electric wire properly insulated.

As to the proximate cause of a death, it is not necessary that the exact or precise result which occurred should have been anticipated. It is sufficient if in the light of all the surroundings such a result might have been anticipated or expected.

This brings us to a determination of what seems to us to be the real problem to be solved, and really the one question here presented under the conceded facts, namely: Was there a breach of duty on the part of the defendant company which it owed to the plaintiff’s intestate? In the face of the facts presented by the record in this case, .and in the application of the law governing same, we are bound to answer this question in the affirmative.

The mischief here was caused by the defendant company maintaining an uninsulated electric wire, which was the proximate cause of the death of George Wolf, and who, at the time of his sudden departure, was not a trespasser in fact or in law.

Having pointed out the foregoing errors of law, as they appear to us from an examination of the record here presented, and finding them prejudicial to the legal rights of the plaintiff in error, we must therefore reverse the judgment of the court of common pleas, as entered in this case, and remand it to that court for a new trial.

. Judgment reversed and cause remanded.

Shields, J., concurs; Powell, J., not participating.


source: Caselaw Access Project

author: Richards, J. Kinkade, J.

license: Public Domain

text:
    EVIDENCE IN THE FORM OF A MOVING PICTURE FILM.
    Court of Appeals for Lucas County.
    William M. Duncan, as Receiver of The Wheeling & Lake Erie Railroad Company, v. Thomas N. Kiger.

    Decided, February 28, 1916.

      Evidence—Moving Picture Film Attached to Bill of Exceptions—Ordered Reproduced Before the Reviewing Court—Refusal to Grant a New Trial After Term.

    1. When a bill of exceptions contains the film of a moving picture which was reproduced in the trial court, a reviewing court has power to order a reproduction of the same before it, by a competent expert, this course being á metlipd of unfolding the exhibit so as to make it visible to the reviewing court.
    2. It is not error to refuse to grant a petition for a new- trial, filed after the term at which the verdict was rendered based on the claim that the plaintiff in a personal injury case concealed an X-ray plate giving a view of his injured ankle, where such plaintiff denies ever having had possession of the plate which was made under the direction of a surgeon employed by the defendant, and there is no evidence to show what the missing plate, if produced, would disclose as to the condition of plaintiff’s ankle.
    O. A. Seiders, for plaintiff in error.

      C. A. Thatcher and G. B. Eeppel, contra. ■

      Dismissed in the Supreme Court on the motion of the defendant.

   Richards, J.

Error to the court of common pleas.

This is a proceeding in error to reverse a judgment of-the court of common pleas, refusing to grant a petition for a new trial filed in that court after the term at which .the original judgment -was rendered. In the original case, a verdict and judgment were rendered in favor of the plaintiff in the sum of $17,000, by reason of personal injuries received by him, and that judgment was affirmed in this court upon the plaintiff consenting to a remittitur of such a sum as reduced the judgment to $9,000.

'The petition for a new trial was filed under authority of .Section 11580, General Code, on the claim that the defendant could not, with reasonable diligence, have discovered until after the trial term the evidence which has since come to his knowledge The grounds for new trial are succinctly stated in the brief of counsel for plaintiff in error, and are, as there set forth, three prime matters, namely: the conduct and posturing of Eiger in the presence of the jury, whereby he sought to give a certain impression as to the condition of his injured foot, and upon which posturing certain witnesses based their evidence; his suppression of knowledge as to where a certain X-ray plate was, and why it was not produced by the receiver, and his evidence relating to a certain pair of shoes worn by him as- switchman. The receiver also claims to have discovered, by the aid of certain detectives, evidence since the trial that Eiger used his foot in such a way as to show a practically normal condition, and that he, Kiger, had possession of the missing X-ray plate before the original trial. A large mass of evidence was taken in the common pleas court on the hearing of this petition for a new trial, all of which evidence, together with much of the evidence used on the first trial, has been embodied in a bill of exceptions filed in this court.

One of the items of evidence introduced in the trial court by the receiver was the film of a moving picture, and in that court these pictures were reproduced before the trial judge. Against the objection of counsel for Kiger, this court ordered the reproduction, by a comptent expert, of these moving pictures in the presence of this court on the hearing of the case, the record showing the speed at which they were reproduced in the'trial court, and the same speed being used in this court. We have no doubt of the power of a court in reviewing a ease on error, involving this class of evidence, to order such reproduction, as it is no more than a method of unfolding an exhibit so as to make it visible to the court and to place the reviewing court in possession of all the evidence which was used in the trial court. These moving pictures show Kiger walking along the street with the aid of a crutch and cane, and it is contended that they show that he was able to, and did, place his left foot flat upon the sidewalk, which, if true, contradicts his testimony at the trial that he was unable to do so. In the judgment of this court, the moving pictures do not distinctly show how he used his foot in walking, and it is not distinctly apparent from these pictures that he did place his left foot flat upon the surface of the pavement.

Much evidence was introduced relating to the existence of an X-ray plate showing a view of the left foot or ankle of Kiger. The evidence discloses that the receiver was not guilty of any want of due diligence in failing to discover the facts with reference to this X-ray plate, before the first trial, but the serious fact remains that it does not appear that the condition of the foot or ankle disclosed by this plate would be material on a retrial of the ease. In fact, there is no evidence to disclose what the missing plate would show as to the condition. Neither does the evidence disclose that any unfair advantage of the defendant was taken in the trial court on the first trial by reason of the failure to produce this missing plate. It is insisted by counsel for the receiver,0 however, that such improper argument was used on the hearing of the original ease in the court of appeals, and it is contended that this fact is made to appear by introducing in evidence on the hearing of the petition for new trial a portion of the brief which was filed by counsel for Niger and used by the court of appeals in the original case. Niger, however, denies that he ever had possession of the missing plate, and his counsel may well have believed the position thus taken by him; and, so believing it, was not overstepping the bounds of proper argument in commenting on the failure of the receiver to produce the missing plate, that plate having been made under the direction of a surgeon acting for the receiver of the company. Even if we should assume that unfair argument had been used in the court of appeals with reference to the missing plate, that would not justify the common pleas court in granting the petition for a new trial.

Much of the evidence relates to two pairs of shoes, one of which was found by detectives, after the trial, in the cellar or basement of the premises occupied by Niger, and which pair, it is claimed, were his shoes and had been worn by him. Both Niger and his wife deny that they were his shoes. Many circumstances appear to indicate that they were his. It is claimed, on behalf of the receiver, that the 'method of wear on these shoes, and the repairs made to them, indicate that Niger’s manner of walking was the same before the injury for which this action is brought as afterwards. 'The significance to be given to the evidence disclosed by these shoes, and the manner in which Niger walked, was a matter depending very largely upon the credit given by the trial court to the various witnesses who testified on the subject, and that testimony was in serious conflict. A number of witnesses testify that, before the last injury, Niger walked normally, and it also appears from the evidence that, before his last injury, being the one on which this action is based, he was performing regularly the work of a railroad switchman. So far as this branch of the case is concerned we can not, therefore, interfere with the action of the trial court.

Two detectives employed by tbe receiver after the first trial testify that when he walked, and believed he was not under observation, he placed the bottom of his left foot flat upon the ground or walk; while numerous neighbors and several medical witnesses called by Kiger testify that he walked with the inside of his left foot raised and the foot turned outward; and the medical witnesses further say that it was impossible to straighten his foot or ankle so that it could be placed in a natural position flat upon the ground. If the claim made by the receiver in this respect was sustained by the evidence, it would follow that Kiger was guilty of malingering and attempting thereby, both before and at the trial, to deceive the court as to the nature and extent of his injuries.

The rule announced by the courts in cases where it is attempted to secure a new trial by reason of newly-discovered evidence is that such new trial ought not to be granted unless the legitimate effect of such evidence, when considered in connection with that produced on the trial, ought to have resulted in a different verdict. See C., C.,C. & I. R. R. Co. v. Long, 24 O. S., 133.

. Many of the authorities so state the rule as to prohibit the granting of a new trial for newly-discovered evidence, unless the evidence is of such a character as to require a different verdict or finding, and this language is used in the opinion of Judge Mcllvaine in giving tlie' reasons on which the Supreme Court based the judgment in the ease just cited.

This court laid-down the rule that the new evidence must be of such a character as to require a different verdict before it would justify a new trial in the case of Bridge v. State of Ohio, 20 C.C.(N.S.), 231. See also Searles v. State, 6 C. C., 331, 344, and Cincinnati Traction Co. v. Fesler, 31 C. C., 631. The authorities are collected in 29 Cyc., 901.

Furthermore, it is said in Kroger, Adm’r, v. Ryan, 83 O. S., .299, 306, that new trials on the ground of surprise are, and should be, granted with great caution, and the granting or refusing of motions on this ground rests largely in the sound discretion of the trial court. The same subject’is fully considered by the Supreme Court in Hurley v. State of Ohio, 6 Ohio, 399, 404, and in Smith v. Bailey, 26 O. S., 1. See also Stuckey v. Bloomer, Adm’r, 2 C. C., 541, 542, and Weber v. Wiggins, 11 C. C., 18.

After a careful review of the evidence, we are unanimously of the opinion that the judgment is not so manifestly against the weight of the evidence as to require or justify a reversal, and the same will therefore be affirmed.

Chittenden, J., concurs.

Kinkade, J.

I concur in the judgment of affirmance of the judgment below, denying the prayer of the petition for a new trial, but I desire to add that the evidence offered upon the hearing of this petition strongly confirms my former opinion in the main case that the verdict returned was the result of passion and prejudice on the part of the jury.


author: Metcalfe, J.

text:
    ACCEPTANCE OF BENEFITS BARS RIGHT TO CONTEST WILL.
    Court of Appeals for Mahoning County.
    Bessie Fuhr Patterson, Executrix of the Will of Delos Patterson, v. A. L. Atkinson, Executor of the Will of T. H. Patterson et al.
    Decided, October 19, 1917.

      Wills—Contest of—Can Not he Maintained hy Executor Who Has Accepted Benefits Thereunder.

    A party appointed and qualified as' executor of a will, administering an estate in accordance with its terms and taking the benefit of the provisions therein in his favor, can not afterward maintain-an action to contest the validity of the will.

      David G. Jenkins, V. L. Fishel and McCray & McCray, for plaintiff in error.

      Hart & Koehler, Harrington, DeFord. Heim & Osb.orne, contra.

   Metcalfe, J.

The plaintiff in error was plaintiff below and brought this action to contest the validity of the will of 'T. II. Patterson.

.In the common pleas court John II. Humphrey, as guardian of Catherine Humphrey, a minor defendant in the case, filed a motion to dismiss and abate the action. The court of common pleas sustained the motion and entered a,n order abating the action, which is the error now complained of.

It is first objected that the matters set out in the so called motion properly constitute a plea in abatement, and should have been plead by answer. We think this objection would have been good if made in time, but the record shows that the parties went to hearing upon it without objection; hence, any objection to the form of the pleading was waived.

Briefly stated, the facts as they appear upon this record are, that the plaintiff was the wife of Delos Patterson and is the executrix of his will and his sole heir and devisee. Delos Patterson was the son and sole heir at law of Theodore Patterson whose will it is sought to contest. He was also named as one of the executors of the will which contained a substantial provision for his benefit; that the only interest which the plaintiff has in the will of Theodore Patterson she derives through her husband, Delos Patterson; that Delos Patterson, after the death of Theodore Patterson appeared in the Probate Court of Ma-honing County and presented his father’s will and made the usual application for its admission to probate; that with A. L. Atkinson he was appointed one of the executors and duly qualified as such, and thereupon took upon himself the duties of an executor, collected the assets of the estate, paid debts and legacies in the due course of the administration to the amount- of several thousand dollars; that he made an application to the probate court for the payment to him, in money, of a legacy and received full payment thereof, and afterwards made an application to the probate court for a certificate under the statute which would entitle him tó a transfer of certain real estate devised to him, received the certificate and caused the real estate to be transferred to him.

'The judgment of the trial court found the above matters to be true. We have no evidehee before us upon which to review the finding.

The right of the plaintiff to maintain this action depends entirely upon the right of her husband, Delos Patterson. She succeeded to his right in the estate and is a party in interest, under Section 12079, General Code, and would have the same right to make the contest that he had, but her right is no greater than his. If he lost the right to make a contest, then her right is also gone.

After having performed all the acts he performed as shown by the record, could Delos Patterson have maintained an action to contest the validity of his father’s will? That is to say, could he take all of the provisions made for him in the will and have the right to say that the instrument under which he received them was invalid? Can he say, “I will take all I can get and after I get all I can, under the will, I will exercise my statutory right to contest it?”

To state this proposition is sufficient tó refute it The law is clearly stated in the case of Utermahle v. Norment, 197 U. S., 40:

“The rule of law is, that the party taking the benefit of a provision in his favor under a will is estopped from attacking the validity of the instrument.”

On page 57 the court says:

“ As to what is the law relating to a party taking the benefit of a provision in his favor under a will, there is really no foundation to dispute the proposition that he thereby is precluded from at the same time attacking the validity of the very instrument under which he receives the benefit.”

And, in commenting further upon the question the court cites the following authorities, Hyde v. Baldwin, 17 Pick., 303; Drake v. Wilde, 70 Vt., 52; Brenson v. Watkins, 96 Ga., 55; Smith v. Smith, 14 Gray, 532; Frye v. Morrison, 159 Ill., 244, and many other cases.

The only case cited to us from Ohio is Leedy v. Cockley, 14 C. C. Rep. (N.S.), 72, where it is held:

"A daughter who went into possession of land devised to her by the will of her father and leased the land and collected the rent under the lease from the date of the probate of the will, is estopped thereby from contesting the validity of the will.”

Counsel have cited us a large number of eases in which it was held that acts of acceptance of certain provisions in wills by parties interested did not preclude them from afterwards contesting the will, but these cases nearly or quite all went' off on particular facts which the courts held in those eases :did not' estop the parties from making the contest. They do not conflict with the rule adopted in the case at bar.

Judgment affirmed.

Pollock, J., and Farr, J., concur.


author: Jones (Oliver B.), J.

text:
    FINDINGS WITH REFERENCE TO ARREARAGES UNDER A JUDGMENT FOR ALIMONY.
    Court of Appeals for Hamilton County.
    Carrie E. Collard v. Martin T. Collard.
    Decided, June 14, 1916.

      Divorce and Alimony—Findings by a Court of Another .State as to Arrearages—Binding on Reviewing Court of This. State, When.

    In the absence of a bill of exceptions, a finding of facts made by the trial court is. conclusive on the court of appeals'. The .trial, court having found in the instant.case that a Kentucky court having given judgment for alimony' payable in monthly installments, that judgment is 'as' to installments already past due “subject to modification, alteration and change, and that said amount already due was and is at all times under the control of the chancellor making the same,” this court is bound by such finding.

      Harper, Allen & Curts, David Lorbach and Leonard Carver,. Jr., for plaintiff in error. ;

      John Nichols and Matt. Herold, contra.
   Jones (Oliver B.), J.

The action in the court below was to recover a judgment for arrearages due in monthly payments of alimony allowed by a judgment of the Circuit Court of Campbell County, Kentucky.

'The defense made in the answer was that the alimony was payable in installments, and that under the law of the state of Kentucky all judgments for alimony are subject to modification and change by the court thereof making the same and’that said" judgment would not support an action as on a final judgment for a fixed sum, in this state, and said judgment is subject to modification by the courts of Kentucky, and is not a final judgment for a fixed sum.

These allegations were denied by reply; a jury was waived; and the eaúse was tried to the court, which, on request of the parties, made a separate finding of its conclusions of fact and conclusions of law. No bill of exceptions was taken.

The conclusion of facts so found by the court áre as follows:

‘ ‘ That the plaintiff by the consideration of the Campbell Circuit Court of the county of Campbell and state of Kentucky, on the 18th day of May, A. D. 1905, recovered a judgment for alimony against the defendant herein, payable in monthly installments of fifty ($50) dollars each, on the first day of each month after the-making of said order; that at the time of the filing of this action, the defendant had failed to pay said monthly installments of alimony until the payments then in arrears amounted to the sum of $1,200, and that up to the time of the filing of the petition herein there has been no modification, alteration or change in the judgment rendered -by the Circuit Court of the county of Campbell and state of Kentucky.

“The court further finds as a matter of fact that at the time, and ever since the said decree was rendered against the defendant in the Campbell Circuit Court of the county of Campbell and state of Kentucky for said monthly payments of alimony, that said decree as to installments of alimony already due, under the decree, are subject to modification, alteration and change, and that said amount already due was, and is, at all times under the control of the chancellor making the same. ’ ’

The law of another state must be proved as a fact, and such fact to be considered by an appellate court must be made a part of the record. In the absence of a bill of exceptions, a finding of facts made by the trial court is conclusive upon this court. We are therefore bound in this case by the finding of the trial court that the judgment for alimony being in monthly payments is, as to installments already past due, “subject to modification, alteration and change, and that said amount already due was and is at all times under the control of -the chancellor making the same.”

It might be stated that if we were free to consider the statutes of Kentucky and the numerous cases cited in oral argument and in the briefs of counsel, we might probably arrive at a different conclusion in regard to the finality of the judgment so far as past due installments are concerned, in view of the fact that no application has been made for any modification, alteration or change. But being bound by the finding of facts, as we have stated, we must find that the judgment for alimony is so discretionary with the Circuit Court of Campbell County, Kentucky, that even in the absence of an application to modify the decree, no vested right exists upon which the court here can act. In other-words, the judgment, in the condition in which it is found to be by the trial court, is one to which the case of Lynde v. Lynde, 181 U. S., 187, will apply, and not a case in which the later and broader doctrine announced in the case of Sistare v. Sistare, 218 U. S., 1, would be applicable.

The judgment below is therefore affirmed.

Jones (E. H.), J., and Gorman, J., concur.


author: Shields, J.

text:
    PROSECUTION FOR. CAUSING DEATH BY ALLEGED VIOLATION OF THE SPEED STATUTE.
    Court of Appeals for Stark County.
    Joseph W. Jones v. State of Ohio.

    Decided, September Term, 1917.

      Charge of Court—Instruction as to the Included Offense of Assault and Battery—Warranted in a Prosecution for Manslaughter, Based on Alleged Violation of the Speed Statute, When—■Finding by the Jury as to the Facts a Finality, Notwithstanding Contrary View of the Court..

    Where a prosecution for manslaughter results from a death caused by collision of automobiles, and the defendant contends that he is not criminally liable on account of his alleged violation of the speed statute, but on the contrary that the driver of the machine in which the decedent was riding was guilty of disregard of a rule of the road, it is not error for the trial judge to submit to the jury the question whether or not the defendant, if guilty at all, was guilty of manslaughter or assault and battery under the evidence of the case.

      Webber & T-urner, for plaintiff in error.

      Frank N. Sweitzer, Prosecuting Attorney, and Thos. H. Leahy, Assistant Prosecuting Attorney, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, December 11, 1917,

   Shields, J.

At the September (1916) term of the Court of Common Pleas of Stark County, Ohio, the plaintiff in error w,as indicted by the grand jury of said county for the crime of manslaughter and, upon trial had, the jury returned a verdict of not guilty of manslaughter but guilty of assault and battery. A motion was filed to discharge the defendant below from further custody on the ground that a verdict and judgment of assault and battery did not lie under said indictment, under the evidence in the case, which, said motion was by the court overruled and thereupon the said defendant was sentenced according to law.

It appears that after a petition in error was filed in this court a motion was filed by the defendant in error to strike the same from the files for the reason that no motion for a new trial, or a motion in arrest of judgment, had been filed in the court of Common pleas after said verdict, and for other reasons therein stated, which said motion was by this court overruled. No cross-petition having been filed on behalf of the defendant in error, the sole question presented on the record for consideration is, therefore, the question made by the motion of the plaintiff in error to discharge him after verdict, as stated.

"We do not feel called upon to review all the evidence in this case, npr is it necessary for a solution of the question presented, except to bear in mind such portions of it as have been referred to and regarded as material by counsel, for the contention made involves a question of law mainly, if not wholly.

It appears that on the 29th day of August, 1916, the plaintiff in error owned what is termed a seven-passenger Buick automobile, and that in the afternoon of said day while driving said automobile on the streets of the city of Canton he invited two girls, Gladys Crawford and Fay Carnes, one of whom he had met before that time and the other was unknown to him, to take a ride, which invitation was accepted by them. In returning from Massillon to Canton in said automobile on the Canton-Massillon road, going eastwardly, said automobile was being driven by the said Gladys Crawford and the plaintiff in error who were riding side by side in the front seat of said automobile; that at the same time on said day one B. L. Thomas was driving westwardly on said road a Dodge automobile with his wife and son .and one Thomas Ellis, his father-in-law, therein; that at a point near to what is called Calvary Cemetery on said road, said two automobiles being driven in opposite directions collided, when the plaintiff in error was assisting the said Gladys Crawford in operating his said automobile; that at the time of said collision the said Thomas was driving his ear at the rate of from fifteen to eighteen miles per hour and that the plaintiff in error was driving his said automobile greatly in excess of said rate of speed atid in violation of Sections 12603 ,and 12604 of the General Code, and that as a result of said collision the wife and son of said Thomas and the said Thomas Ellis were seriously injured, and as a result of said collision and the injuries received by him through the alleged negligence, carelessness and recklessness of the plaintiff in error the said Thomas Ellis on said day died.

Said Sections 12603 and 12604, General Code, were enacted by the Legislature in the interest of public saftey on public highways and it requires no close analysis of the evidence in this record to show that the automobile of the plaintiff in error at the time of said .accident was being operated in violation of the provisions of said sections. It appears that the speed said automobile was traveling at said time was not only unreasonable and unlawful, but that said automobile was being recklessly driven; hence it is laid down as a wholesome and sound proposition of law that ‘ ‘ one who is engaged in the performance of an unlawful act must take the criminal consequences of whatever happens to third persons as a result of that act. The necessity for the application and enforcement of this rule for the protection of life and limb is apparent when applied to the nfodern mode of travel upon the public highways and elsewhere. Automobiles may be employed as a means of travel and they have become recognized as the popular means of travel upon the public highways and elsewhere, but like all other agencies thus employed, proper care .and discretion should be exercised in their use. It requires no sophistry to persuade us that these high-powered machines were never intended to render life and .limb secure upon the public highway when under the control of an inexperienced novice, nor that the safety of others, perhaps traveling upon the same highway in an opposite direction, is rendered any more secure thereby. Regard for the safety of human life requires that automobiles when traveling upon the public highway, where people have the right to travel in their own way, should be under the control of persons capable of managing them and that they should be held to the performance of speed not in excess of that prescribed by the sections referred to. Commenting upon the need and propriety of legislation to be found in these two sections of our statutes, and of the urgent necessity of proper protection being afforded to life ,anl limb against the indiscriminate and reckless operation of automobiles on the public highways and elsewhere, Judge Wanamaker, speaking for the court in the case of State v. Schaeffer, recently decided by our Supreme Court, says:

“'The first year for which official statistics are available .as to the number of automobiles operated on the public highways of this state is 1908, when 18,000 were in operation. Today the total number is over 300,000. If there was need for some such statute in 1908, there is more than ten times the need of it today.

“Statisticians have calculated that when you vest average men with large power, you make either a tryant or fool out of ten per cent, of them. The estimate is very conservative. Indeed, if it err at all, it is upon the .ground that it is too low, and it may well be doubted if the ratio is appreciably reduced in the case of putting 300,000 automobiles, with their tremendous speed, power and impact, under the direction .and control, or lack thereof, of the usual drivers. Ten per cent, of the 300,000 would make 30,000 that are in the hands of tyrants, fools or incompetents, speed-maniacs, that are a constant menace and danger to the same and conservative 90 per cent, of automobile drivers, to other vehicle drivers, and to the millions of foot passengers.

“ ‘Safety first’ must not be sacrificed for ‘speed first.’ •

The daily press is full of hairbreadth escapes and casualties, from slight injuries on the one hand to instant death on the other. It may well be said, ‘that the railroad locomotive has killed its hundreds, but the automobile is killing its thousands.’

‘ ‘ The day has long been here when the authorities should exercise every power under every law of the state to protect the safety of the public, its life, its limb; and in order to meet every possible situation of danger, some such general comprehensive and elastic statute as Section 12603 is absolutely necessary.

“'The careful, conservative driver need have no fear of it. The reckless, wanton speed-maniac needs to be kept in fear of it. 'The life of the humblest citizen must be placed above the gratification of the motor-maniac who would turn the public highways into a race course. Mere civil liabilities are not sufficient to protect the public. Five dollars fine and costs is a joke in most' cases.

“Some statutes have undertaken to fix a rate of speed which would be prima facie dangerous, but a rate of speed dangerous in one situation would be quite safe in another situation, and if the rate of speed were definitely fixed, naturally it would have to be the minimum speed at which cars might be safely driven; because that speed would bave to be a safeguard against every possible situation which would be perilous even at a speed of six or eight miles an hour.

‘ ‘ There is no place in all the public grounds and parks where a situation is not constantly changing from comparatively no traffic to a most congested traffic; from no foot travelers to a throng of them; from open and clear intersections, private drives and street crossings, to those that are crowded; from free and unobstructed streets to streets filled with crowds of foot travelers and others getting off and on street ears and other vehicles. In order to meet these varying situations and impose upon the automobilist the duty of anticipating them and guarding against the dangers that arise out of them, this statute was evidently passed in the interests of the public safety in a public highway. ’ ’

Here as claimed by the state, and as we think the evidence shows, the plaintiff in error was engaged in an unlawful act prohibited by the statute law of Ohio at the time of said collision when Thomas Ellis was injured from the effects of which he died. His unlawful act was the violation of said sections. He was afterward indicted for manslaughter and found guilty of assault and battery only and sentenced therefor. It is contended in his behalf that the trial court erred in instructing the jury that they were authorized to return a verdict for assault and battery, if the facts warranted such verdict, and further, in overruling the motion for his discharge from further custody after said verdict, and that the judgment and sentence upon said verdict of the jury for assault and battery is therefore a nullity. Error is here prosecuted to reverse said judgment.

Under our statutes criminal homicide consists of different degrees, and murder in either the first or second degree may be reduced to manslaughter, or even to an assault and battery, or an assault, in a proper case, upon the theory that the lesser is included in the greater of the crime charged. This theory at an early day found its way into the criminal jurisprudence of this country and has since been generally if not universally recognized and adopted as a sound and safe principle to apply in the administration of the criminal law. Citation of authorities is not necessary to show that in this state it has been so recognized and repeatedly declared by the courts. While admitting that the principle is sound as applied to cases generally, it is urged on the part of counsel for the plaintiff in error that under the evidence in this case the crime here committed, if any was committed, was manslaughter and that only, and that the element of assault and battery was entirely foreign to the case. It appears that no objection was made or special exception taken to the charge of the trial court at the time said charge was given to the jury, except a general one, including an exception to the refusal of the court to give certain special requests submitted on behalf of the defendant below before argument. In passing, and by way of referring to the contention of counsel, it may be remarked that if the deliberations of the jury had been eon-' trolled by the logic of the evidence and the charge of the court, another and different verdict might have been returned by the jury, but we are admonished by the repeated holdings of our Supreme Court that the jury ,are the sole judges of the- facts, when a case is presented to them, under proper instructions by the court. Not that it necessarily follows that the jury are always right and that their action may not be reviewed and corrected by the court, in a proper case, but it goes unchallenged that their latitude of inquiry and judgment upon the facts, under the issues raised, is not circumscribed by the limitations of any rule. True, the issue raised should be kept in mind and not lost sight of by the jury when considering the evidence, and that a verdict unsupported by any evidence should not be allowed to stand, but in a case “where the evidence justifies it,” with the jury acting under express instructions of the trial court, will it be said that the action of the jury in returning a verdict of guilty of assault and battery in a manslaughter case, should be disregarded and ignored? Scarcely, in view of past precedents resting upon adjudications erystalized into recognized law since the organization of courts. There may be cases where courts have refused to disturb verdicts because the character of the ease forbade the submission of a lesser degree than that charged in an indictment, but not so, under the investigation we have made, when without objection a lesser degree is expressly and properly authorized by the charge of the trial court.

Section 13692 provides that “when the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree.”

As if acting under the authority conferred by this statute, the trial court, among other things, charged the jury as follows:

“So that if you fail to find from the evidence beyond the existence of a reasonable doubt that the defendant is guilty of the crime of manslaughter, you may then go forward and find whether or not the evidence satisfies you beyond the existence of a reasonable doubt that defendant is guilty of the offense of assault and battery, or of assault. Therefore, if you find beyond the eixstence of a reasonable doubt that the defendant, Joseph W. Jones, at the county of Stark and in the state of Ohio, on or about the 29th day of August, 1916, unlawfully committed an assault and battery upon Thomas Ellis, then and there being, then you should return a verdict of guilty of the offense of an assault ,and battery. If the evidence fails to so show, then you should return a verdict for defendant, to-wit, not guilty of an assault and battery. If the evidence fails to show beyond a reasonable doubt that defendant on or about the date named in the indictment committed unlawfully an assault upon Thomas Ellis, then and there being, then you should return a verdict of guilty of assault. If you fail to so find your verdict should be not guilty of assault. If the evidence fails to satisfy you beyond the existence of a reasonable doubt of the offense of manslaughter, assault and battery, or assault, your verdict should be for the defendant, to-wit, not guilty.” * * *

“The indictment for manslaughter includes within its terms the lesser offense of assault and battery, and under Section 13692 of the General Code of Ohio, the jury may find a defendant guilty of such inferior and lesser offense, if the evidence warrants, and only warrants such conviction. But notwithstanding such right of the jury, it is the duty of the jury to receive the law as given to it by the court, and if the facts proved are such as to make the offense manslaughter as hereinbefore defined and explained to you and warrants a conviction thereof under these instructions, it is the sworn duty of the jury to make such finding, without reference to their power to find .a lesser offense to which they might be influenced, by something extraneous to the real facts as found by them. The law does not include these lesser offenses of assault and battery and assault in order to relieve the jury from the performance of what might otherwise be a disagreeable or unpleasant duty, or to reach a compromise verdict and enable them to evade their sworn duty 'by finding a lesser offense simply because they may, but it is held proper so that there may not be a failure of justice if the evidence did not sustain the offense charged in the indictment, but would support a finding of guilty of a lesser offense than the one charged in the indictment.”

ITere the jury were duly cautioned against losing sight of the material issue in the case, and of their obligations as sworn jurors to fearlessly meet and discharge duty. That the admonition thus given was both direct and pertinent admits of no question, but how the facts in the case were regarded and treated by the jury in the jury-room we- do not know, except as shown by the verdict. It can not be said that the jury acted contrary to the instructions of the court, if in their judgment a, verdict of assault and battery was warranted by the facts, because the court expressly so instructed them. But counsel on behalf of the plaintiff in error argue that the death of Ellis was caused by the collision and therefore the crime was manslaughter, if anything, relying in support of their contention on the cases of State v. Vancak, 90 O. S., 211, and State v. Schaeffer, heretofore referred to. It appears that the first case mentioned involved the defense of self-defense. Logically and legally the defendant in that case was either guilty of the crime charged— manslaughter-—or not guilty of any other crime. There was no pretence of any claim made but that death resulted from the blow struck, and indeed the killing was admitted by the defendant. The rule of law announced in that case is far from being applicable to the facts in the ease before us for review, in our judgment. In that case there was no issue raised as to the cause of death. In the Schaeffer case, there too the killing of the child was admitted, but the defendant contended that he was not criminally liable because he was not violating the speed ordinance at the time. Unlike the case before us, where the plaintiff in error claims that the death of Ellis was caused by the unlawful conduct of Thomas in not observing the rules of the ro.ad, which was denied by the state. While the plaintiff in error- denied that his car was being driven recklessly or in excess of a lawful rate of speed at the time of the collision, the state contends that it was so driven. So here was an issue and here was a conflict of evidence on the question as to how the collision occurred and who was responsible for it—a question of fact to be determined by the jury. In the cases cited the killing and the facts and circumstances leading up to the death were admitted, but not so here. While the fact that death was the result of the collision is admitted, the facts causing the collision are disputed. The isolated fact of death resulting from the collision does not answer or satisfy the question at issue, but the question remains, Who and what caused the collision? Leaving out the evidence that Ellis’ body was placed on the side of the highway after the collision and there suffered to remain until it was placed in an automobile and later on transferred to an ambulance to be conveyed to the Massillon Hospital several miles distant, and that death resulted en route, leaving out these circumstances which were before the jury and the effect of which were for the determination of the jury, it would seem that the finding of the jury was referable to the manner of driving the automobile of the plaintiff in error and its speed at the time of said collision.

In his behalf counsel for plaintiff in error also refer to the ease of Marts v. State, 26 O. S., 162. In this case the defense was self-defense, and it appears that the defendant requested the trial court to instruct the jury that they might return a verdict for assault and battery, if the facts warranted it, which request was refused, but the Supreme Court says ‘1 that the court should have instructed the jury as requested; that it was competent if in their opinion the evidence justified it, to find the defendant guilty of assault and battery only, and that the refusal of the court to give such an instruction was error to the prejudice of the defendant.”

Juries sometimes differ in their judgments and reach different conclusions upon the same state of facts, as do courts, but whatever the judgment of this court of the merits of this casg and of the verdict of the jury, we are not unmindful that facts are the exclusive property of the jury to deal with and that the constitutional right of trial by jury is still ‘ ‘ the great safeguard of life, liberty and property. ’ ’• Discussing the institution of the trial by jury, Judge Ranney fittingly refers to it as ‘ ‘ the glory of the English law,” and as an important integral part of our, system of jurisprudence. In Gibbs v. Village of Girard, 88 O. S., 47, Judge Wanamaker also says:

“So lopg as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be ■ jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our Constitutions.”

For the reasons stated, we think the trial court was authorized to submit to the jury the question whether or not the defendant below was guilty of manslaughter or assault and battery, under the evidence in the case, and in so instructing the jury said ■ court did not err, nor did said court err in overruling the motion to discharge the said Jones from further custody after said verdict of assault and battery was rendered.

While the requests made before argument to the jury were not argued to this court, nor even referred to, it is sufficient to say that we have examined all the grounds of error assigned, and keeping in mind the uniform rule of the courts in this state that judgments of conviction are not to be set aside except “in cases where the grounds of error are clear and the -error manifestly prejudicial,” we find no such prejudicial error in the record as to require a reversal of the judgment of the court of common pleas, and said judgment of said court will therefore be affirmed, and said cause will be remanded to said court for execution.

Exceptions noted.


author: Richards, J.

text:
    INJURY DUE TO FALL ON SIDEWALK COVERED WITH ICE.
    Court of Appeals for Lucas County.
    Frances Ritter v. City of Toledo.
    Decided, March 27, 1916.

      Sidewalk—Icy Condition—Pedestrian Injured by Falling—Liability of Municipality—Walk Structurally Defective—Distinguished from One Built on an Incline.

    A petition to recover damages for personal injuries caused by slipping on an icy sidewalk, where the only complaint made against the walk is that it has an incline of ten inches in seven feet, and was covered with ice produced by natural causes, does not state a cause of action.

      Graves & Stahl, for plaintiff in error.

      Harry S. Commager, Director of Law, and Charles T. Law-ton, contra.
   Richards, J.

The action was commenced in the common pleas court to recover damages for a personal injury resulting from falling on an icy sidewalk. The petition was met with a demurrer, which was sustained in the trial eonrt, and, the plaintiff not desiring to plead further, final judgment was rendered dismissing her petition, and to this action of the court she prosecutes error.

The allegations in the petition as to the precise location and situation of this walk are somewhat complicated, but for the purpose t>f determining the point involved it is only necessary to say the petition discloses that the walk was a slanting or inclined walk, extending a distance of seven feet from the outer line of the sidewalk to the curb line, and that in said seven feet the extent of the incline is ten inches. The petition alleges that five or six days before the injury this sidewalk became covered with ice and was very slippery, and that the plaintiff had no knowledge of its dangerous condition, but that its condition was known to the defendant or would have been known to it in the exercise of ordinary care.

The simple question for determination is whether these allegations show such a condition as casts a liability on the city. Counsel for plaintiff insist that the petition is sufficient and that the allegations, if established by evidence, would require that the case be submitted to a jury, and to sustain this position they rely very largely on the case of Gibbs v. Village of Girard, 88 O. S., 34. In that case the record disclosed what is called in the opinion a “sudden and immediate two inch drop” in the sidewalk, and it was held that the ease should have been submitted to the jury to determine as to the negligence of the village. 'That case was disposed of on a motion for a directed verdict, and the Supreme Court held that, for the purposes of the motion, the defect must be admitted. We can not extend the doctrine of the Girard case, founded, as it is, on a defective walk, to one where the only criticism of the walk is that it is built on an incline, as set forth in this petition. The ease there under consideration was one of a defective walk, and we have, therefore, to inquire whether the condition of the walk, as set forth in the petition in this ease, discloses that the walk was defective.

We can not hold that a walk which is built on an incline of ten inches in seven feet is a defective walk, nor one which of itself renders the municipality liable in damages to persons injured by falling thereon. To so hold would result in the bankruptcy of municipalities which were so unfortunate as to be built in hilly localities. A sidewalk in order to have drainage must be built either on a slant or crowning, and it could hardly be said that it was negligence for a municipality to permit a walk to remain in such condition; and neither can it be said that it is negligence to construct a walk on a street which is not level.

The Supreme Court held in Chase v. City of Cleveland, 44 O S., 505, that it was not actionable negligence for a city to suffer ice and frozen snow to accumulate on a sidewalk and be beaten smooth and slippery, and for that reason dangerous to those passing along it; and it is said in that case that the condition was transient in character and not such as to ordinarily require the interference of the city authorities for its abatement, the duty of the municipality being only to exercise ordinary care. To prohibit the construction of such a walk as is described in the petition in this case, or to hold municipalities liable by •reason thereof, would be impracticable.

Another case to which I call attention -is City of Norwalk v. Tuttle, 73 O. S., 242. In that case a recovery was denied the plaintiff for damages suffered by falling on an icy sidewalk, because the conditions did not disclose any structural defect in the walk, and the city was not liable for the icy surface, that slippery condition being the result of natural causes.

Under the doctrine of the two cases last cited, a recovery would be impossible in the case at bar without holding that the walk as constructed was structurally defective; and to so hold would overturn fundamental principles and be manifestly unjust to municipalities. A petition to recover damages for an injury caused by slipping upon an icy sidewalk, where the only complaint made against the walk is that it has an incline of ten inches in seven feet, and was covered with ice produced by natural causes, does not state a cause of action and the demurrer thereto was properly sustained.

The judgment of the court of common pleas will be affirmed.

Chittenden, J., and Kinkade, J., concur.


author: Allread, J.

text:
    JURISDICTION IN AN ACTION TO-MODIFY AN ORDER FOR ALIMONY.
    Court of Appeals for Licking County,
    George Graff v. Louisa Graff.
    Decided, March Term, 1917.

      Divorce and Alimony—Allowance of Alimony Made on Appeal to the Old Circuit Court—Is Within the Jurisdiction of the Court of Appeals, When—Such an Allowance Must he Considered as Alimony and Not a Division of Property, When.

    1. The constitutional amendment creating the courts of appeals clothed them with jurisdiction, not only over active cases . which were pending in the circuit courts on January 1, 1913, but also with any continuing jurisdiction which the said courts had over judgments theretofore rendered by them; and the fact that alimony cases are not now appealable in nowise affects the jurisdiction of a court of appeals over a case properly appealed to the circuit court and now coming on for consideration by the court of appeals as the successor of the circuit court.
    2. In an action to modify the allowance made to a divorced wife and in the absence of anything in the petition to indicate that the divorce was granted to the plaintiff on the aggression of the wife, the court is bound to assume that the allowance was in the nature of alimony and therefore subject to the continuing jurisdiction of the ■court, rather than that it was in the nature of a division of the property under the provisions of Section 11993. But regardless of whether the judgment was technically one for alimony or otherwise, the fact that it directed the payment of a specified amount per month to the wife during her life or until further order of court creates a continuing jurisdiction, which in the present case is now in the court of appeals.
    3. An order for payment of alimony to a divorced wife of a specified sum each month during her life or until further order of court, is not abated by the death of the former husband.

      Stasel é Cornell and Flory & Flory, for plaintiff.

      Kibler & Kibler, Fitzgibbon, Montgomery de Blach ancl Phil. B. Smythe, contra.
   Allread, J.

Elizabeth Mary Graff, executrix of the last will and testament of George Graff, deceased, seeks by a petition filed in this court to vacate or modify a judgment rendered by the circuit court on appeal at the March term, .1900, ordering the plaintiff, George Graff, now deceased, to pay as alimony for the support of said Louisa Graff the sum of $25 per month during her natural life or until the further order of said court.

The defendant first objects to the jurisdiction of the court of appeals. It is contended that final judgment having been rendered in the circuit court when the amendment providing for the court of appeals became effective, that this court is without jurisdiction to disturb the original judgment.

The judicial amendment creating the court of appeals provides that:

“The court of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit court shall proceed to judgment and be determined by the respective courts of appeals, * * * and the circuit courts shall be merged into, and their work continued by, the court of appeals. ’ ’

The first clause treats of the work of the circuit court and the disposition of pending cases and proceedings, in the conjunctive. The new court was to continue the work of the circuit court as well as to dispose of pending cases.

The draftsman of this section, with a view evidently of securing a broad interpretation, added the second paragraph above quoted. By such paragraph the circuit courts were not in a legal sense abolished, but were merged into the courts of appeals. The court of appeals, therefore, represents the circuit court not only as to active cases pending on January 1st, 1913, but as to all jurisdiction which the circuit court had over judgments theretofore entered.

This we think is the reasonable and natural interpretation of the terms employed in the constitutional amendment and is in line with the decision in the case of State, ex rel Chittenden, v. Harmon, Governor, 87 O. S., 364. The fact that alimony cases are not now appealable does not affect the jurisdiction of the court of appeals over a case properly appealed to the circuit court and coming up for consideration by the court of appeals as successor of the circuit court.

It is next contended that the judgment of the circuit court in 1900 was not one for alimony, but was for a division of the property under Section 11993, General Code, and, therefore, not subject to the continuing jurisdiction of the court in which the judgment was rendered. Counsel for defendant cite the case of Hassaurck v. Markbreit, Administrator, 68 O. S., 554.

Counsel for plaintiff cite the case of Ulney v. Watts, 43 O. S., 499. There will probably be no conflict between the Hassaurek case and the case of Ulney v. Watts when the exact judgment sought to be modified comes before the court. The case of Ulney v. Watts was disposed of on demurrer to the petition, wherein it was alleged that the judgment was one for alimony and there was nothing in the petition to indicate that it was not a judgment for alimony. That is the condition of the present case when we consider only the petition. It does not appear in the petition that the divorce was granted to the plaintiff upon the aggression of the wife, and consequently the court will have to assume at this stage that the judgment is what the plaintiff claims, to-wit, a judgment for alimony and subject to the continuing jurisdiction of the court. Furthermore, the original judgment directing the payment of $25 per month to the defendant during her life or until the further order of the court, amounts, by implication, to a reservation of the jurisdiction of the court over the original judgment. Independent, therefore, of the question whether the judgment of 1900 was technically a judgment for alimony, the court would have continuing jurisdiction under the reservation in the entry.

It is next contended by the administratrix ,of the plaintiff that the fact of plaintiff’s death alone terminated the liability of his estate. We can not, however, agree with that contention.

The former judgment expressly provides that the payments shall continue during the life of the defendant or until the further order of the court. Until, therefore, the administratrix obtains an order from the court modifying the former judgment, the liability of the estate to pay the amount provided for remains.

The court has, therefore, reached the opinion that the case should proceed to trial upon the evidence.

ITouck, J., concurs.


author: Chittenden, J. Kinkade, J.

text:
    PROCEDURE FOR ENJOINING ANNEXATION OF TERRITORY.
    Court of Appeals for Lucas County.
    Emil Hacker et al v. Albert W. Payne et al.
    Decided, June 19, 1916.

      Annexation—Petition by Tax-Payers and Property Owners—To Enjoin Reporting Plat or Transcript to Council—Construction of the Statute Relating to the Filing of such a Petition.

    Section 3553, General Code, requires a petition to enjoin further proceedings in the annexation of territory to a municipality to he presented to the court of common pleas or a judge thereof, and the filing of a petition for that purpose with the clerk of the court of common pleas is not a compliance with the statute, and it is not error to grant a motion to strike such petition from the files.

      L. H. Wilkinson, for plaintiffs in error.

      H. 8. Commanger, Director of Laws, and G. A. Irwin, contra.
   Chittenden, J.

This action was begun to restrain further proceedings in the, matter of the annexation of certain territory to the city of Toledo. On the 22d day of March, 1915, the city council of the city of Toledo passed an ordinance authorizing the annexation to the city of Toledo of certain territory including West Toledo. Thereafter, on the 29th day of November, 1915, the city solicitor, having been authorized so to do, presented to the commissioners of Lucas county a map of the territory to be annexed, and the petition of the city of Toledo setting forth that under the ordinance of the council the territory described in the ordinance was authorized to be annexed to the city, and praying for an order of the board of county commissioners for the annexation of such territory. On the hearing of the matter by the county commissioners on November 29th a resolution was passed authorizing such annexation, and on the same day a transcript of the proceedings of the commissioners, together with the petition and the map or plat thereto attached, were deposited in the office of the auditor of the city of Toledo, who placed the same on file.

The plaintiffs, being owners of land and tax-payers within the district proposed to be annexed, on behalf of themselves and others, on the 28th day of January, 1916, filed their, petition with the clerk of courts of Lucas county in which they set forth the various proceedings had in the matter of the annexation of such territory, and set forth certain claimed errors by reason of which it was asserted that further proceedings should be enjoined, and they prayed for an order restraining the defendants, Albert 'W. Payne, clerk of the city of Toledo, and Peter J. Kranz, director of finance, from reporting the petition,, plat and transcript to the council of the city until after final hearing; upon the petition, and they asked that upon such hearing the injunction be made perpetual. A summons was issued upon the filing of the petition and was personally served upon the defendants on the same day.

On the 19th of February, 1916, the defendants filed a motion to strike the petition from the files for the reason that said petition had not been presented to the court of common pleas, or a judge hereof, as required by law. This motion was heard on the 21st day of February, 1916, and granted, and judgment entered against the plaintiffs for costs. To this order the plaintiffs excepted and prosecuted error here to such action of the court.

The question presented involves a construction of several sections of the General Code. The proceedings for the annexation of territory are governed by sections of the General Code found in Chapters 2 and 3, Division I, Title XII of the General Code. Those chapters relate to the organization of villages and to the annexation of territory. That these sections must be construed together is not only apparent from a reading of the sections, but such is the holding of the Supreme Court in Shugars, Cleric, v. Williams et al, 50 O. S., 297, where it is said that these chapters "relating to the general subject of the creation of villages and hamlets, and the annexation of territory to those already created, are to be treated, for the purpose of construction, as one act.” Provision for the annexation of territory is made under two heads: First, annexation upon application of citizens; and, secondly, annexation on application of the corporation. The proceedings taken for the annexation of the territory known as "West Toledo were under the latter head. The method of procedure is provided by Section 3561, General Code, as follows:

“When the petition is presented to the commissioners, like proceedings shall he had, in all respects, so far as applicable, as are required in case of annexation on application of citizens in this chapter.”

This is the only provision for procedure in the annexation of territory on application of the corporation. It is, therefore, necessary to ascertain what proceedings are required in annexation on application of citizens. This is found in Section 3549, General Code, which section, so far as it need be quoted, reads as follows:

‘ ‘ The petition shall be presented to the board of commissioners at a regular session thereof, and when so presented the same proceedings shall be had as far as applicable, and the same duties in respect thereto shall be performed by the commissioners and other officers, as required in ease of an application to be organized into a village under the provisions of this division. ’ ’

It therefore becomes necessary to recur to the provisions for the organization of a village under Chapter 2, which contains the only statutory provisions governing .the procedure in such case. Section 3533, General Code, is as follows:

“When the petition is filed, the person filing it shall give notice thereof, in writing, to the recorder and the agent of the petitioners for the corporation. On receiving such notice, the-r.ecorder shall forthwith transmit to the clerk of the court where the petition for injunction is pending, all the papers relating to the matter on file in the recorder’s office, and, in that event, no record of the papers shall be made by the recorder, or transcript certified by him as hereinbefore provided, unless he receive a certificate from the clerk of the court, showing 1hat the' injunction has. been denied, ” .. . .

■ Section 3534, General Code, provides:

‘■‘The court or judge shall cause the petition to be filed and docketed in the office of the clerk of the courts, and shall hear the petition at such time as he shall appoint, not less than twenty-days from the filing thereof. ” * * *

The petition in this case was filed by virtue of Section 3553,-General Code, which is found under Chapter-3, relating to the annexation of territoy, and is as follows:

‘ ‘ If, within sixty days from the filing of such transcript, map, or plat and petition in his office, the auditor or clerk receives notice from any person interested that he has presented to the court of common pleas, or a judge thereof, a petition to énjoin further proceedings, he shall not report to the council such transcript, map, or plat and petition, until after the final hearing and disposition of the petition so presented to such court or judge.”- ■ • • ■

The single question presented for decision is as to whether or not the filing of the petition by the plaintiffs with the clerk of the courts is a compliance with Section 3553, which in effect provides that notice must be given to the auditor or clerk that a petition for injunction has been “presented to the court of common pleas or a judge thereof” within sixty days from the filing of such transcript, map or plat and petition, in the office of the auditor or clerk. The common pleas court held that the filing of the petition with the clerk of courts was not a compliance with the statute, which required the petition to be presented to the common pleas court or a judge thereof. It will be observed that Section 3534 provides that the court or judge shall cause the petition to be filed and docketed in the office of the clerk of the courts. The language quoted from Sections 3553 and 3534 clearly shows a legislative intent that the petition shall bé presented to the court or a judge, and that thereafter the judge or court shall cause the petition to be filed and docketed, and a filing with the clerk of courts, which would not necessarily bring the petition to the attention of the court or judge at the time of the filing is not a compliance with the statutes. It is perhaps unnecessary for this court to inquire into the purpose .of thus legislating, but it is obvious that a petition, of which notice to the auditor or clerk of its presentation to the court of .common pleas or a judge thereof shall operate as an injunction, should not be simply filed with the clerk and allowed to -have this effect without first being brought to the attention of the court or a judge thereof. Furthermore, an intent to have a prompt disposition of the petition is evident, for Section 3534 also provides that the court shall, at the same time that it-causes the petition to be filed and docketed, fix a time for the hearing of the petition which shall be not less than twenty days from the filing thereof.

'This same conclusion was reached by the circuit court in Hamilton county in the ease of Ritter v. Falkinburg, 49 Bull., 277.

We think that a reading of these various statutes, which are to be construed as though they were one act, as held by the Supreme Court, makes' it clear that the action of the court of common pleas was right in striking'the petition from the files, and the judgment of that court will, therefore, be affirmed.

In what has been said we are not holding that, if the petition was filed with the clerk of the court but was in fact brought to the attention of the court within sixty days, that would not be a substantial compliance with the statute.

Richards, J., concurs.

Kinkade, J.

(dissenting).

I can not concur in the views entertained by the majority of the court. The sole question here is whether the filing of the petition with the clerk .of the court is a presentation of the -petition to the court. No one contends that there is any other question in this ease. It seems to me that to hold that the filing of the petition with the clerk of the court is not a presenting of the petition to the court is to write just such a technical opinion as gives rise to much criticism of the courts that their, opinions are too often based on bare technicalities. If it should happen •that on the last day upon which such a petition was to be presented to .the court the judge was absent, or was ill, or had'fallen dead with heart disease, .or for any other one of many reasons that might be assigned, he could not be met personally and handed the petition, then the party who had the right to present it to the court would lose his right to present it, although the office of the clerk of the court was open and the officer there that records all the proceedings of the court and receives all papers filed in court of every kind, unless this be one that he should not receive.

I think the filing of the petition with the clerk in this case was a full and complete compliance with the requirements of the statute, and that the court was clearly in error in striking it from the files.


author: Houck, J.

text:
    RESPONSIBILITY FOR COLLISION BETWEEN AUTOMOBILES.
    Court of Appeals for Licking County. °
    Ellis Beeson v. David Criss et al.
    Decided, April 21, 1917.

      Negligence—Driver Causing Accident Through Bad Judgment—Not Excused Because the Judgment Upon "Which He Acted Was Honest —Whether His Action Was Reasonadle Under the Circumstances a Question for the Jury—Competency of Testimony of Expert as to Whether Machine Was Under Control at Time of the Accident.

    1. Where the plaintiff has alleged that the automobile which collided with his own was being driven at a furious, unlawful and reckless rate of speed, contrary to the laws of the state, and that the . driver had no control over said machine at the time of the collision, it is prejudicial error to sustain an objection to the ■testimony of an expert who, if permitted, would have testified that in his opinion the defendant driver did not have his machine under control.'
    2. Where the driver of an automobile traveling east on the south side of the road sees another machine, coming from the opposite direc-

      tion on the same side of the road, and fearing that the approaching machine will not turn out of his way the driver of the first machine himself turns to the north and in so doing causes a collision, the question whether he was negligent in so doing was for the jury, and a charge is erroneous which instructs them that if the driver of the first named car in the exercise of ordinary care believed it was dangerous for him to continue on- the side where he belonged, his judgment in that matter controlled and he is relieved of negligence, notwithstanding his action in turning to the north was a mistake.

      Fitzgibbon, Montgomery & Black, for plaintiff in error.

      Phil. B. Smythe, contra.
   Houck, J.

The plaintiff in error was the plaintiff below and the defendants in error were the defendants below.

Plaintiff in his suit in the court of common pleas sought to recover damages in the sum of $7,000 from the defendants for personal injuries, which he claimed as the result of a collision between a Ford automobile driven by him and a motor ambulance driven by an employee of the defendants.

In the common pleas court the cause was submitted to-a jury and a verdict returned for the defendants. A motion for a new trial was filed, heard -and overruled, and a judgment entered on the verdict.

Plaintiff in error seeks a reversal of the judgment below and in his petition in error sets forth numerous grounds of alleged prejudicial error.

After a careful reading of the bill of exceptions and the record here presented we find errors in the record prejudicial to the rights of the plaintiff in error as hereinafter set forth.

A. P. Hess was sworn and examined as a witness on behalf of plaintiff, and on pages 88, 89, 90 and 91 we find the following:

“Q. What is your name?' A. My name is.A. P. Hess.

“Q. What business are you in, Mr. Hess? A. I am in the automobile business.

‘ ‘ Q. How long have you been engaged in the automobile business? A. About ten years.'

“Q. Do you remember the time of the collision on the Gran-ville road near Sixteenth street some time in March, 1915? A. I do; yes, sir. # * *

“Q. About how far were you behind these machines at the time of the collision? A. About one block.

“Q. At what speed was it coming? A. Well, I couldn’t judge the speed from where I was, but it was coming fast.

‘"Q.' What did you-hear? A. 1 heard them strike.

“Q. How much experience have you had in handling automobiles? A. About ten years.

“Q. I will ask you to state from your experience as an automobile salesman or driver whether the driver of the ambulance when this collision occurred, just from the way he was coming and the way the collision occurred or happened, whether or not in your opinion he had his ear under control?

“By Phil B. Smythe: I object.

‘ ‘ The Court: I think you may show the facts. I don’t think it is subject to an expert opinion. The objection is sustained. .

“By J. R. Fitzgibbon: Note an exception; and we offer to prove that the witness will say that in his judgment at the time of this accident the driver of the ambulance did not have the ambulance under control, and we wish an exception.

“The court refused to permit the plaintiff to so prove, to which refusal of the court counsel for the plaintiff then and there excepted. ’ ’

We think that this testimony should have gone to the jury and that its exclusion by the court was clearly prejudicial to the rights of the plaintiff below. The plaintiff alleges in his petition that “the employee of the defendants, driving said motor ambulance, was driving the same at a furious, unlawful and reckless rate of speed, which rate of speed was in violation of the laws of the state of Ohio, and so reckless that the driver of said motor ambulance had no control over the machine.”

This testimony tended to prove one of the material allegations in the petition and to establish negligence on the part of the defendants, as claimed by plaintiff, and it seems to us that it being necessary for the plaintiff to prove the essential allegations in his petition, that it was clearly competent to show by the witness, Hess, who qualified as an expert, just what plaintiff attempted to prove by this testimony; and therefore we hold that it was improperly excluded by the court.

Before counsel argued the case to the jury, and at the request of counsel for the defendants, the court instructed the jury as follows:

(а) “Jf yo.u find from the evidence that the plaintiff’s car approached the scene or point at which the collision took place on the south side of Granville street traveling westwardly, and you find from the evidence that the defendants’ ambulance approached the scene or point where the collision occurred on the south side of Granville street or road traveling eastwardly, and plaintiff’s car approached said point on the south side of said Granville street so close that in the exercise of reasonable care it appeared to the driver of defendants’ ambulance that the plaintiff intended to continue on the south side of Granville street or road, and you find that the driver of defendants’ ambulance turned the same to the left to avoid a collision, and you further find that at the same time plaintiff turned his car to the right, thereby causing the collision, the court charges you that in so doing the driver of defendants’ ambulance was not negligent in the operation and driving of said ambulance by turning to the left, even if you find that the driver of said ambulance erred in his judgment upon being confronted by said state of facts, and that defendant in the exercise of due care was not bound to bring his ambulance to a stand-still.”

(б) “Every person has a right in governing his own conduct to assume that others will perform their duty, and also act accordingly, until he sees, or by the exercise of ordinary care might see that it is dangerous to do so. Therefore, if you find from the evidence that the defendants’ ambulance approached the scene of the accident on the south side of the road, traveling eastwardly, he had a right to assume that the plaintiff would bear to the right and pass him on the north side of the road. That if in the exercise of ordinary care it appeared to him that it was dangerous to continue driving on the south side of said road, the defendant was not negligent in attempting to avoid such threatened danger by attempting to pass plaintiff’s car on the north side of the road, if you find from the evidence that he did so attempt to pass the plaintiff’s car; and the defendant would not be guilty of negligence in so doing, even though you find that his judgment was bad in said respect, if you find that he had reasonable grounds for believing that the course he pursued would be the safest. A person in a place of danger is not to be held to such a course as would seem most judicious on deliberate survey of the situation after the accident. The question is not what a careful person would do, but what he might reasonably be expected to do in the presence of the peril, and this is for the jury.”

It is the duty of a trial court to submit to the jury propositions of law before argument, if they are correct propositions and applicable to the issues in the case.

The language used in the above charges, as we construe it, simply left it with the driver of the motor ambulance to de-' termine the fact as to whether or not he believed, or had a right so to do, that the plaintiff intended to continue on the south side of Granville street, and whether or not he could have avoided the collision. These were questions of fact to be submitted to the jury to be passed upon and determined by it, and not by. the driver of the motor ambulance. These questions were for the jury to decide under all the circumstances of the case, taking into consideration the rapidity with which both cars were traveling at the time, their relative position to each other, and whether the driver of the car of the defendants had it under proper control, all of which must be determined by the jury under the evidence submitted.

These propositions of law, as given to the jury, left nothing for it to pass upon as to whether the driver of the car of the defendants was negligent or not, because the force and effect of the instruction was that this question was to be determined by the driver, and if he so believed, then the plaintiff could not recover.

It necessarily follows from what we have already said that the judgment of the court of common pleas should be reversed.

Judgment reversed and cause remanded for a new trial.

Powell, J., concurs.


author: Lieghley, J.

text:
    MOVING PICTURES WITHIN THE CATEGORY OF THEATRICAL PERFORMANCES.
    Court of Appeals for Medina County.
    William Standen v. State of Ohio.
    Decided, October, 1917.

      Sunday Laws—Construction of the Statute Relating to the Giving of Exhibitions on—Moving Pictures Within the Prohibited Class-— And Not Affected by the Amendment Covering Ball Playing on Sunday.

    The fact that Section 13049, penalizing the giving of dramatic and certain other performances on Sunday, was recently .considered by the Legislature without moving pictures being added to the list of performances therein specified must be construed to mean that the language theretofore used in the statute was sufficiently comprehensive to cover moving picture shows, rather than that moving pictures were not mentioned because it was not intended by the Legislature that the prohibition should cover them; and a moving picture show must be regarded as within the prohibition relating to the giving of theatrical performances on Sunday.

      , Siebler & Siebler, for plaintiff in error.

      Fred 0. Smoyer and A. B. Underwood, contra.
   Lieghley, J.

Error to the Court of Common Pleas.

For convenience "William Standen will hereinafter be called “defendant” and the State of Ohio “plaintiff.”

William Standen was charged by affidavit before a justice of the peace in and for Wadsworth township, Medina county, Ohio, with unlawfully exhibiting a theatrical performance, to-wit, a motion picture show, on Sunday. 'The defendant waived examination and was bound over to the probate court of Medina county. Trial was had in said court without the intervention of a jury and resulted in conviction and sentence. Error was prosecuted from said court to the court of common pleas which resulted in an affirmance of the judgment below Error is prosecuted to this court to. reverse the judgment of the court of. corn-: mon pleas.

The affidavit was founded upon Section 13049, General Code. Complaint is made that a moving picture show is not comprehended within the language of said statute a “theatrical or dramatic performance” and, therefore, said conviction is contrary to law. -

Section .13049, General Code, was enacted in substantially the present language of the act in 1881, which was long before the moving picture show was- generally known. For this reason it is urged that a moving picture show was not contemplated. at the time of the enactment and can not now fairly be said to be comprehended within its language. This section was amended in 1911, after show houses had become prevalent, in respect to Sunday base ball, but no phrase or clause was added to expressly include the moving picture. It was, therefore suggested, on the one- hand, that the act having received recent consideration of the Legislature and no mention being made in the act of moving pictures, it was not intended to control and regulate the same; and, on the other hand, it is urged that upon consideration of the act by the Legislature in 1911, it is just as reasonable to assume that it was concluded that the language theretofore employed in the act fully comprehended and covered the subject.

What does the phrase “theatrical or dramatic performance” mean? According to Webster, “theatrical” means “of or pertaining to a theater or scenic or dramatic representations.” Standard dictionary defines it “of or pertaining to the theater; of the nature of dramatic or scenic representations; befitting the stage; dramatic.” Century dictionary defines it “of or pertaining to a theater or scenic representations resembling the manner of dramatic performers.”

Quoting from the syllabus in the case of Kalem Co. v. Harper Bros., 222 U. S., 55:

“An exhibition of a series of photographs of persons and things, arranged on films as moving pictures and so depicting the principal scences of an author’s work as to tell the story is a dramatization of such work. ”, * * *

'The conclusion irresistibly follows that one who conducts the exhibition is exhibiting a theatrical or dramatic performance. In this case a moving picture film of scenes and descriptions of certain portions of Gen. Lew Wallace’s book “Ben ILur” was held to be an infringement of the copyright upon said book and that “Ben Hur” was dramatized by the moving picture film, The opinion is written by Mr. Justice Holmes of the Supreme Court of the United States, and attention is called to the language employed by him as bearing upon a definition of what ‘ ‘ a theatrical and dramatic performance ” is.

In the case of Ex parte Lingenfelter, 142 S. W., 555, at page 562, as follows:

Being of the opinion that a moving picture show of the character and kind presented in this state comes within the definition of amusements of like character, kind and species as a theater, and while not a theater, is of the same genus.”

We are satisfied that the rule of statutory construction in this state permits and. requires the. conclusion that a moving picture show is included within the language of the statute and that the said statute was intended to operate to forbid the mischief intended to be remedied thereby, i. <?., to prevent certain public exhibitions on Sunday. , ...

“A statute may include by inference a case not originally contemplated when it deals with a genus within which a new species is brought.” State v. Cleveland, 85 O. S., 61.

We feel that this judgment should be affirmed. In view of' the fact that the Court of Appeals of Ross County has decided the same question and published its opinion, w7e deem it unnecessary, to prolong this opinion. , Myers v. State, 25 C.C.(N.S.), 556. Motion to certify record in that, casé was overruled by. the Supreme Court, April 25, 1916.

While it is claimed that said court did not support its opinion by citations of authorities, we think the reasoning of that court is amply .supported by the authorities herein, cited.

See, also, State v. Norris, 76 Atlantic, 479;. Moore v. Owen, 109 N. Y. S., 585; Jacko v. State, 22 Alabama Rep., 73.

The judgment is affirmed at the costs of plaintiff in error.

Grant, J., and Carpenter, J., concur.