author: Hornbeck, P. J.

text:
    Scheu et al., Appellants, v. Scheu at al., Appellees.
    (No. 1870
    Decided December 14, 1945.)

      Mr. Logan W. Marshall, Messrs. Roland E. <& FL. E. Beery, for appellants.

      Mr. Wayne F. Lee, Mr. James D. Herrman, Mr. Rodney R. Blake and Miss Gertrude M. Bonholser, for appellees.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, entered on the verdict of a jury finding that the last will and testament of Charles W. Scheu, deceased, was his last will and testament.

Five errors are assigned, which will be considered in order.

1. Misconduct of juror.

^ Etta Schultz qualified and served as a juror and with the other jurors signed the verdict. Upon her voir dire examination, she stated that she knew none of the parties, one of whom was Luesetta Caroline Scheu Lee, a plaintiff. The trial proceeded and on the third or fourth day, Luesetta Lee discovered, from a short talk with Etta Schultz, that she knew the latter and, upon the motion for new trial, testified that in 1917, some 28 years before the trial, she had met and conversed with the juror under circumstances which created a feeling of animosity between them. Etta Schultz stated that she did not know Luesetta Lee personally, had no conversation with her in 1917, and had no ill feeling toward her. The answer of Etta Schultz on her voir dire examination to the effect that she did not know Luesetta Lee is assigned as the first ground of error.

There are two aspects to the question presented, one, did Etta Schultz knowingly answer improperly the question under consideration without stating the circumstances of the acquaintance of those parties, if any attended. It is probable that even though Etta Schultz at one time knew Luesetta Lee, the former did not appreciate the fact when interrogated on the voir dire examination. The second aspect of the question presented relates to the obligation enjoined upon Luesetta Lee when she realized the acquaintance to which she testified on the motion for new trial. Certainly, it was her obligation to bring to the attention of the court any fact of which she had knowledge which, in her .judgment, might affect the qualification of a juror to sit impartially in judgment on her case. She could not hazard the possibility of favorable or unfavorable action by the juror and, in the event that it was unfavorable, urge it after such action developed. The obligation which devolved upon such appellant when she discovered the fact, which in her judgment may have disqualified the juror, is set forth with citation of authorities in 24 Ohio Jurisprudence, 230, Section 102. The determinative question in the consideration of this claimed error is whether the trial judge erred'in concluding that no prejudice appeared to have resulted to plaintiffs’ cause by reason of the statement of the juror or by reason of her service as a juror. The trial judge was well within his province in concluding that no prejudice appeared.

2. The verdict is contrary to the weight of the evidence.

It is necessary to observe on this assigned error that, in the most favorable view to the appellants of the testimony developed, there was presented only á jury question. It became necessary, under the facts, for the jury to resolve them in favor of or against the claim of the appellants, and they held the burden of proof. There is nothing in the factual development which would require this court to hold that the jury disregarded its obligation or that its verdict is so manifestly against the weight of the evidence as to shock the conscience of a reviewing court.

3. Abuse of discretion on the part of the court.

It is claimed that the court abused its discretion in refusing to grant continuance of the cause when the chief counsel of appéllants could not be present at the time it was tried. It is also asserted that Logan W. Marshall of counsel was ill during the trial of the cause. There is not sufficient showing of any abuse of discretion on the part of the court in requiring counsel to proceed with the trial in the absence of Fricke, who no doubt had ample notice of the date fixed for trial and it does not appear that he was physically unable to be present. Manifestly, courts may not cease to function because one of counsel, even though chief counsel, as suggested, chooses to remain away from the place of trial at the time set for the hearing. The physical condition of Marshall was not brought to the attention of the trial judge and he, therefore, was given no opportunity to act in the situation presented.

4. Other errors occurring at the trial which were excepted to by plaintiffs at the time and which are apparent on the record.

W. J. Emmons, counsel for decedent in-his lifetime, who testified that he had prepared and witnessed the will, stated in his deposition that the purported will was executed on July 9,1939, whereas the true date was July 3, 1939. At the time of the taking of the deposition, the will under contest was not. presented to the witness although a photostatic copy of the last page thereof was available to him. The jury had to determine the probative effect of the testimony of Emmons. All the circumstances incident to the signing of the will were testified to fully by the witness.

The ultimate question was whether the instrument, which was exhibited to the jury and which had been probated, had been executed and was the -valid last will and testament of decedent. The mere fact that the scrivener may have been mistaken in his testimony at the trial as to the date of the execution of the will was not so material as to preclude the jury from finding in favor of the appellees on the question presented and from concluding that the witness had attested the signature of the decedent to the instrument which was exhibited to the jury. It'is also asserted that the witness stated that it was signed at night whereas the probability is that it was signed in the morning. We do not find that Emmons so testified, but if he did, this also merely went to the wfeight of the witness’ testimony and not to its competency.

5. Errors committed by the court in its charge to the jury and other errors manifest from the face of the record.

Counsel set forth a párt of the general charge given to the jury before it retired, wherein are stated the essentials to constitute due execution of the will, and also a part of the charge as given to the jury at its request after it had been in deliberation, and from these statements it is urged that the court modified its general charge by the special charge given at the request of the jury. We do not so find.

It must have been obvious to jury and counsel that the court in its latter charge confined the law, as announced, to the one question propounded by the jury and, properly, did not restate the law controlling all of the issues presented in the case.

A careful examination of this record and a reading of the testimony are convincing that the appellants had a fair trial; that the issues drawn by them were properly presented to the jury; that their cause was capably conducted by their counsel; and that the verdict returned is well supported by the evidence, if that which is favorable to the appellants is given credence, which was within the province of the jury.

We have not cited cases at length in passing upon this appeal because there is no legal question involved which is in doubt on the authorities.

We find no prejudicial error occurring in this record in any of the particulars assigned.

The judgment will be affirmed.

Judgment affirmed.

Miller and Wiseman, JJ., concur.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    Holtzman, Appellee, v. Hopwood Realty, Inc., et al., Appellants.

      (No. 3870
    Decided February 16, 1946.)

      Mr. Allen I. Pretzman, for appellee.

      Messrs. Williams, Williams $ Reynolds, for appellants.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin .county. The defendants, appellants herein, have filed 25 assignments of error. The court does not believe it would serve any useful purpose to treat each assignment of error separately.

With respect to the first cause of action, the main contention of defendants is that the settlement and dismissal of two actions in the Court of Common Pleas, Franklin county, constitute res judicata. The record shows that in 1942 Ida Earnhart held a note against the plaintiff, appellee herein, Holtzman, which was secured by mortgage on certain real estate owned by Holtzman. After the note and mortgage were executed, Holtzman conveyed the property to ¿he Suburban Home Mortgage Company. The note and mortgage became in default and Holtzman employed the defendant, Hopwood, as his attorney to negotiate for a settlement of the note and mortgage. The negotiations extended over a period of many months and during the negotiations Hopwood represented to Holtzman that in order to settle the note and mortgage liability Holtzman would be required to deed certain lots to the Earnharts, a portion of which real estate was covered by the mortgage. The title at that time stood in the name of the Suburban Home Mortgage Company. Later, during the negotiations, Hopwood represented to Holtzman that in order to settle the note and mortgage liability Holtzman would be required not only to deed the above mentioned property to the Earnharts, but he would also be required to pay to them $2,000 in cash. The record shows that thereupon the Suburban Home Mortgage Company, of which Holtzman was president, executed a deed to certain lots to Hopwood and later Holtzman paid to Hopwood $2,000 in cash on the representation that the lots in turn would be conveyed to the Earnharts and the $2,000 would be paid to them in settlement of the note and mortgage liability. The Earnhart note and mortgage was not settled by Hopwood, and Helen Harley, the daughter of Ida Earnhart to whom the note and mortgage had been assigned and transferred, instituted a foreclosure suit in the Common Pleas Court of Franklin county, being case numbered 164137. Holtzman commenced the present action against Hopwood for the recovery of the money, in May 1943. The Suburban Hotue Mortgage Company commenced an action against Hopwood to recover the lots (case numbered 167838) in October of 1944. The foreclosure action went to trial and during the trial of that case a compromise and settlement was entered into whereby the lots in question were conveyed to a purchaser at a price sufficient to discharge the mortgage liens and pay the taxes. As a part of the Settlement agreement between the parties, the action instituted by the Suburban Home Mortgage Company against Hopwood to recover the lots was likewise settled and dismissed. The foreclosure action, being case numbered 164137, was also settled and dismissed.

The defendants contend that the settlement and dismissal of the two actions referred to constitutes res judicata. We do not believe that the facts support that contention since those actions were not between the same parties and the same evidence would not sustain both. True, the matters were related, but they were different causes of action. Neither the settlement of the note and mortgage liability between the Earnharts and Holtzman nor the recovery of the lots by the Suburban Home Mortgage Company in settlement of Holtzman’s indebtedness to the Earnharts constitutes a bar to the present action in which Holtzman seeks to recover $2,000 in cash which he paid to his attorney, Hopwood, for the purpose of effecting a settlement with the Earnharts, but which was never paid to the Earnharts, it being retained by Hopwood and converted to his own use. Those facts do not operate as an estoppel, neither does the doctrine of res judicata apply. 30 American Jurisprudence, 918; 23 Ohio Jurisprudence, 973; Norwood v. McDonald, 142 Ohio St., 299, 52 N. E. (2d), 67.

The defendants contend also that the trial conrt erred in its findings of fact numbered eight, nine and ten on the first cause of action. This assignment of error raises the question whether the contention of Hopwood that after the negotiations for the settlement of the Earnhart note and mortgage were terminated, Holtzman thereupon agreed that Hopwood should retain the $2,000 as attorney’s fees. On that issue it was Holtzman’s word against that of Hopwood. The trial court found in favor of Holtzman. Furthermore, we are of the opinion that the judgment of the trial court is not against the manifest weight of the evidence; neither is it contrary to law'. We find no error in the record relative to the admission or the exclusion of evidence on the first cause of action of which the defendants complain. We are of the opinion that the trial court did not commit error in overruling the motion for new trial and in rendering judgment for the plaintiff in the amount prayed for, to wit, $2,000, with interest from March 24, 1942.

The defendants have filed 12 assignments of error relative to the third cause of action, the first being that the trial court erred in its findings of fact numbered seven. In that finding the trial court found that Hopwood was not entitled to receive any further credits over and above $1,415.60 allowed by the court out of the proceeds of the insurance company refund check. After reading the record, this court is of the opinion that the trial court properly allowed credits in the amount of $1,415.60, and the evidence does not support the contention of Hopwood that additional credits should be allowed.

Defendants contend also that the trial court erred in its conclusions of law numbered one, two, three, four, five, eight and nine; also that the judgment of the court was against the manifest weight of the evidence and contrary to law. The record shows that in May 1939, Holtzman decided to sell certain shares of stock which he held in the Columbus & Southern Ohio Electric Company. Holtzman contends that he employed Hopwood to sell the stock, and, at the suggestion of Hopwood, authorized him to' invest $10,000 of the proceeds in a single premium life insurance policy. The stock was sold for approximately $11,000. Hopwood invested $8,000 in a single premium life insurance policy with the American United Life Insurance Company and retained the balance of the proceeds and converted the same to his own use. There is a dispute as to who were to be named as beneficiaries in such policy, the defendant Hopwood contending that he, his wife and his children were to be named as beneficiaries, whereas the plaintiff contends that he gave the names of six of his cousins and two sisters to Hopwood on a slip of paper for the purpose of inserting those names in the beneficiary clause. The policy as written named Hopwood, his wife and children as beneficiaries. No right wás reserved in the policy to change the beneficiaries. The trial court found, and rightly so, that by reason of the letter of authority which Holtzman gave to Hopwood instructing him to sell the .stock and invest $8,000 of the proceeds in a single premium life insurance policy and further to retain the balance as attorney fees, Holtzman could not complain relative to Hopwood retaining the balance of the proceeds.

The record shows that Holtzman made repeated efforts to gain possession of the insurance policy but Hopwood refused to deliver the policy or even show the policy to Holtzman unless Holtzman would execute an agreement to pay Hopwood a sum of money which was stated to be approximately $2,700. About 'nine months after the policy was issued, at the insistence of Hopwood, Holtzman executed such an agreement, whereupon the policy was turned over to Holtzman. He testified that he then first learned that the beneficiaries in the policy were members of the Hopwood family rather than members of his own family and that it was an $8,000 rather than a $10,000 policy. Within a short time, Holtzman and Hopwood mutually agreed that the policy should be cancelled and in order to recover a substantial part of the money which was paid in the purchase of the policy they agreed on making a loan, which was consummated. The loan amounted to $7,564.70. The policy was allowed to lapse by mutual agreement. Furthermore, the record shows that out of the proceeds the defendant. Hopwood paid for the use and benefit of the plaintiff certain of his obligations totaling $1,415.60, which the trial court allowed as proper credits against the proceeds of the refund cheek. The trial court found that there was due to Holtzman from Hopwood the sum of $6,149.10, which represents the difference between the proceeds of the life insurance refund chock and the credits which were allowed by the court.

The defendant Hopwood in his answer and also during the trial of the case contended that he retained the $6,149.10 as attorney’s fees; however, the trial court found that the evidence did not support the contention that there were any attorney’s fees due him which* would justify the retention of that sum of money in payment thereof.

There is ample evidence in this case to support the contention of Holtzman that the proceeds of the insurance refund check were regarded both by Holtzman and Hopwood as money belonging to Holtzman. The fact that Hopwood paid a number of bills of Holtzman and applied the balance on account of attorney’s fees is sufficient evidence to sustain the claim of Holtzman that both persons regarded the fund as belonging to Holtzman. The claim of Hopwood that the money belonged to him by reason of being named beneficiary in the insurance policy, a contention which was made for the first time in his brief in this court, is disposed of by the factual situation in this case. The record does not support the defendant Hopwood’s contention and we approve of the finding of the trial court, both with respect to its findings of fact and its conclusions of law.

During the trial of the case there was introduced into evidence a document which was offered as defendant’s Exhibit “T,” signed by Holtzman and dated September 30, 1940, in which Holtzman acknowledged an indebtedness to Hopwood “in a sum in excess of $2,500, the exact * * * of which indebtedness not having been agreed upon between the undersigned and said Hopwood * * The defendants contend that that document constituted an account stated. The trial court found that the document did not meet the legal requirements of an .account stated. An account stated is an affirmative defense and must be pleaded, which was not done in this case. See Bates’ Pleadings, Practice, Parties and Forms, Section 773; 31 Ohio Jurisprudence, 740, Section 175. Furthermore, we are of the opinion that the document did not constitute an account stated. In 1 American Jurisprudence, 272, is -found this statement:

“An account stated properly exists only where accounts have been examined and the balance admitted as the true balance between the parties, without having been paid.”

In 1. Corpus Juris Secundum, 704, the general rule is stated as follows:

“Account stated must be understood as final adjustment of demands and amount due; and an account rendered for another purpose, or showing that it is not final, is not sufficient on which to predicate an account stated.

“To constitute an account stated the transaction must be understood by the parties as a final adjustment of the respective demands between them and the amount due; and an account rendered for some other purpose will not be given the force and effect of an account that can be converted into an account stated. So a statement expressly providing’ that the balance shown therein does not indicate the amount to be paid or credited is not an account stated.”

The record is silent as to a meeting of the minds of the parties involved before the execution 'of that document. Holtzman testified that Hopwood requested him to sign the document so that Hopwood could settle certain lawsuits in which Holtzman was involved. Clearly, this document was not intended by the parties to be a settlement of their accounts. This court approves the judgment of the trial court in finding that the document in question did not constitute an account stated.

This litigation arises between attorney and client, wherein the client has brought an action against his attorney to recover money in the possession of the attorney for which he should account to his client. The relationship between attorney and client is of the highest fiduciary character. A relation of trust and confidence exists between the parties. Under the law the attorney is required to exercise a high degree of fidelity and good faith. 4 Ohio Jurisprudence, 447, Section 42; 5 American Jurisprudence, 285; 7 Corpus Juris Secundum, 964.

When an issue arises between attorney and client, such as has arisen in this case, the burden of proof rests upon the attorney to prove that he is entitled to retain his client’s money or property. 5 American Jurisprudence, 289; 7 Corpus Juris Secundum, 966; McAdams v. McAdams, Sr., 80 Ohio St., 232, 88 N. E., 542; Berkmeyer v. Kellerman, 32 Ohio St., 239, 30 Am. Rep., 577. See, also, Simmons v. Becker, Admr., 63 Ohio App.j 374, 26 N. E. (2d), 939. In the instant case the burden of proof rested upon Hopwood to show that he had rendered legal services to Holtzman for which he had not been compensated, and that he was justified in retaining the moneys involved in the first and third causes of action and applying the same on his claim for attorney’s fees. The record shows that both counsel and the court interrogated Hopwood at length in an effort to ascertain whether there was due him any amount of money from Holtzman for legal services rendered. The record shows that Hop-wood at no time kept any records in his office or elsewhere which he produced in court. In testifying he relied on his memory but was not able to give the court any facts from which the court would have been justified in finding that there was anything due Hop-wood. After reading the record, this court is of the opinion that on the whole justice has been done between the parties. We find that the trial court in rendering judgment for Holtzman on the third cause of action did not commit error, and that such judgment was not against the manifest weight of the evidence or contrary to law.

The judgment of the trial court is affirmed. ,

Judgment affirmed.

IIornbeck, P. J., and Miller, J., concur.


author: Hildebbant, P. J.

text:
    Heiden, Appellee, v. Howes et al., Appellants.
    (No. 6543
    Decided October 22, 1945.)

      Messrs. Kunkel £ Kunkel and Mr. Wm. H. Buether, for appellee.

      Mr. Robert A. Ludeke and Mr. Walter M. Locke, for appellants.
   Hildebbant, P. J.

This is an appeal on questions of law from a decree awarding partition of real estate.

By virtue of a deed to them jointly, plaintiff and wife each owned an undivided one-half interest in the' real estate involved as tenants in common, and, of course, were entitled to a judicial partition thereof.

The wife died testate, and item III of her will provided as follows :

“All the real estate of which I may die possessed I give to my husband, Henry Heiden, for life, but with the right to sell the same at any time he may see fit, however if he should sell any of such real estate one-half of the sale price thereof, less expenses of sale, shall be paid to Hermine Howes, Margaret Schneider, Jake Heiden and Frederick Heiden in equal shares.”

As a result of such will, plaintiff is now the owner of two estates in the land, one being the undivided one- . half interest in fee, with title derived by deed, and the other a life estate with power of sale in the remaining undivided one-half interest subject to a division of one-half the net proceeds of sale with the remainder-men in event of sale, with the title derived from the will. The defendants are the four children of plaintiff and his deceased wife and hold the remainder of the undivided one-half interest by virtue of the laws of intestate succession.

The decree in partition, excepted to, reads in part:

“Thereupon the court further finds that the plaintiff and the defendants herein named are tenants in common in the estate described in the petition; and that the plaintiff, Henry Heiden, has a legal right to the undivided four-eighths (4/8) of said estate, the defendants, Hermine Howes, Margaret Schneider, Jake Heiden and Frederick Heiden each has a legal right to the undivided one-eighth (1/8) part thereof, subject to the life estate of the plaintiff herein thereto and if sold subject to the right of the plaintiff to one-half of the proceeds of such sale; and that the plaintiff is entitled to have partition made of said premises as prayed for in his petition:

“It is therefore ordered, adjudged and decreed that partition of said estate be made and Gordon E. Morgan, Edward C. Lovett and Don Burkholder, three judicious and disinterested freeholders of the vicinity are hereby appointed commissioners to make and set off the same, but it is ordered that if in the opinion of said commissioners said estate cannot be divided by metes and bounds without injury to the value thereof, that said premises be appraised and of his proceedings said sheriff shall make due return to this court.”

Defendants claim that the right to partition does not exist under the statute and the facts of this case for lack of the requisite unity of possession; that defendants have no present right of possession, due to the intervening life estate to which their moiety is subjected; and that a decree of partition could award no greater possession to plaintiff than he now has by virtue of owning one moiety with a life estate in the other. They also claim the remedy of partition with power of incidental sale may not he used as a substitute for the power of sale derived under the will..

Section 12026, General Code, provides:

“Tenants in common, and coparceners, of any estate in lands, tenements, ©r hereditaments within the state, may be compelled to make or suffer partition thereof in the manner hereinafter described.’'’ .

The nature and object of statutes providing for partition of real estate are stated in 30 Ohio Jurisprudence, 833, Section 2, in part, as follows: ■

“The object of the statutes providing for the partition of real estate is to enable each owner tp possess and control his own share of the estate, exclusively, and for that purpose to have the estate divided among the several owners, where that can be done without manifest injury, and thereby avoid the inconvenience that results from a joint or common and united possession, and enable the persons entitled, to know, take possession of, enjoy and improve their respective shares.”

That partition is a right much favored and reasons therefor is set forth in 40 American Jurisprudence, 5, Section 4. In Black v. Sylvania Producing Co., 105 Ohio St., 346, 137 N. E., 904, it is stated in the first paragraph of the syllabus:

“The right of partition, either under the statute, or in equity, is remedial in its nature, and should be liberally construed.”

In English v. Monypeny, 6 C. C., 554, 562, 3 C. D., 582, a case where plaintiff owned a moiety in fee and had possession of the other moiety as trustee, and which presented a possessory situation similar to the instant case in awarding partition, the following appears in the opinion of Judge Shauck:

“The conclusion that the court had jurisdiction of the persons of these plaintiffs furthers the inquiry as to its ‘jurisdiction over the subject of the action,’ as it has been called in the argument. The claim is, not that the court of common pleas did not have jurisdiction to apart lands among tenants in common, but that because Monypeny, alone, was entitled to the possession of the lands, he holding one moiety in his individual right and the other as trustee under the will of English, the court did not have before it a proper case for the exercise of that jurisdiction. This is upon the theory that an order in partition does not affect title, but possession only. Most of the decisions cited by counsel for plaintiffs upon this point and of their deductions from them are without application to suits in partition' since the revision of the statutes in 1880. It has been repeatedly held by this court that all suits in partition are now civil actions, and that I believe to be the uniform holding of the courts of the state. ‘ The civil action of the code is a substitute for all such judicial proceedings as were previously known either as actions at law or suits in equity.’ Chinn v. The Trustees, 32 Ohio St., 236 * *

In Morgan v. Staley, 11 Ohio, 389, it was held the owner of a life estate in the entire premises who also owned an undivided interest in fee in the remainder could compel partition. In Tabler v. Wiseman, 2 Ohio St., 207, holding that, where there is an outstanding life estate vested in a third person on the whole premises sought to be partitioned, the reversioners or remaindermen could not have partition either at law or in equity, it is stated in the tenth paragraph of the syllabus : “But where the life estate covers only a part of the premises, the case is different, owing to the provisions of the statute. Thus, section 13 expressly authorizes a partition of the whole of a tract, though dower may be assigned therein by the commissioners making partition.” The doctrine denying partition at the suit of reversioners or remaindermen where there is an intervening life estate on the whole of the premises is reaffirmed in Eberle v. Gaier, Jr., 89 Ohio St., 118, 105 N. E., 282, and Embleton v. McMechen, 110 Ohio St., 18, 143 N. E., 177, 34 A. L. R., 689.

In Fitts v. Craddock, 144 Ala., 437, 39 So., 506, 113 Am. St. Rep., 53, the facts are identical with the facts in the ease at bar. On page 438 of the opinion the following appears:

“The real estate sought to be sold for partition, prior to the acquisition by complainant of any interest therein, was owned jointly by Berry and Craddock each owning an undivided one-half interest.

“Complainant acquired Berry’s interest. Craddock died leaving a will, by which he devised to his wife a life estate in the property and a remainder to a certain named person or persons, who are made parties respondent to the bill. Complainant acquired this life estate. It is shown that the property could not be equitably divided.”

The court in the Fitts case awarded partition and quoted from 4 Pomeroy’s Equity Jurisprudence (3 Ed.), paragraph 1387, wherein it is stated:

‘ ‘ The remedy in equity is not confined to the tenants in possession, but extends to all persons interested, whether presently or in expectancy, and remainder-men, reversioners, infants and persons not in esse may be bound by the decree.”

In 30 Ohio Jurisprudence, 839, Section 9, it is stated: ‘ Obviously the holder of a fee simple title is entitled to partition.” Citing Kecheley v. Kecheley, 38 Ohio App., 61, 175 N. E., 237.

In Wyman v. Newberry, 31 Ohio App., 317, 167 N. E., 414, plaintiff there derived title to an undivided half in fee simple by purchase and became owner of a life estate in the other half by virtue of the will of his wife, as in the case at bar, and the court found he was entitled to partition and stated- at page 319:

“The plaintiff owned in his own right, at the time he acquired his life estate, one unincumbered undivided half of said property, and he was in the lawful possession thereof, with the right to ask for a partition and have his one-half set off in severalty, or the whole property sold, as provided by the partition laws of this 'state. There was not then, and is not now, a prior life estate upon the whole of said premises, nor upon the half which he owns in fee, and his election to take under his cotenant wife’s will, and the rights which accrued therefrom, were not related to, or connected with, the rights which he previously possessed as the independent owner in fee of the other one-half of said property, and the will did not contain any provision, which, by his election to take thereunder, estopped him from asserting the rights which he possessed as such independent owner. And the mere fact that he owned one-half of said property, and that he acquired the life use of the other half thereof, does not affect or prevent him from asserting those precedent rights which were attached to his interest in the property at the creation of said life estate.”

In Lauer v. Green, 99 Ohio St., 20, 121 N. E., 821, the first and second paragraphs of the syllabus are:

“1. The provisions of Section 12026, General Code, confer upon every tenant in common having the possession or an immediate right to the possession of lands, the right to compel partition of the same.

“2. The estate of such tenant in common cannot be affected or his right to compel partition defeated, deferred or limited by the provisions of the will of his cotenant whereby he attempts to entail his estate including the lands owned as a cotenant.”

Arid, at pages 24 and 25 of the opinión, the following appears:

“It has long been settled^that when there is an outstanding estate for life vested in a third person in the whole premises of which partition is sought, the reversioners or remaindermen cannot have partition; but that one, who owns in fee simple an undivided interest in real estate can maintain an action-to compel partition as against his cotenants who have only a life estate in another undivided interest. (Tabler v. Wiseman et al., 2 Ohio St., 208, and Johnson v. Brown et al,, 74 Kansas, 346.) Here there is no outstanding estate for life vested in a third person in the ivhole of the premises of which partition is sought; nor is the plaintiff disabled to prosecute partition by reason of being prevented by some intervening estate from recovering possession in an action at law, unless that has been accomplished by the terms of the will of the cotenant of his predecessor in title. But it is fundamental that a tenant in common cannot convey or encumber the interest of his cotenant, nor by any act of his divest his interest as cotenant in the entire tract, or defeat, defer or limit his rights as a tenant in common, and any attempt to do so is ineffectual. Freeman on Cotenancy and Partition,'Sections 172 and 183, and 7 Ruling Case Law, page 879, and cases cited.

“If a tenant in common by creating a contingent remainder or by entailing his estate may affect the right or interest of his cotenant, it would be within the power of any tenant in common, by creating such an interest, to prevent partition and deprive his cotenant of his right thereto conferred by statute, which, of course, cannot be permitted. The difficulty of making partition and the inconvenience resulting to other tenants furnish no sufficient reason for denying it. Taylor v. Blake, 109 Mass., 513, and Scovil et al. v. Kennedy et al., 14 Conn., 349.”

In 40 American Jurisprudence, 94, the following appears :

“The statute or rule allowing partition between joint tenants and tenants in common has been held applicable where the life estate is only in an undivided portion of the estate and the petitioners are the tenants in common of the remainder of such portion and of the other portions, the theory being that in such a case there is no intervening estate in the entire property to exclude the complainants from the immediate right to the use and enjoyment of at least a portion of the estate.” See, also, 12 A. L. R., 644; 25 A. L.'R., 770; 7 Ruling Case Law, 815 et seq.; Bachscheider v. Bachscheider, 23 N. P. (N. S.), 521; Jackson v. Brown, 17 Ohio Law Abs., 414.

We find no exception in the law to the right of an owner in fee to compel partition, and, since plaintiff here owns an undivided one-half interest in fee .with the right to immediate possession and to have that part set off in severalty, the fact that he is entitled to the immediate possession for life of the remaining interest will not be a bar to his right of partition, because the decree can operate to put him in exclusive possession of his undivided one-half in fee with the opportunity to úse and improve it unhampered by joint ownership.

Plaintiff being entitled to maintain the action, the partition should, of course, be coextensive with his greatest title and the provisions of the will of plaintiff’s former cotenant given full force and effect.

This case may be distinguished on this point from Maher v. Johnston, 70 Ohio App., 351, 46 N. E. (2d), 442, where plaintiffs lacked title, and the incidental sale in partition would have defeated the terms of the will, whereas, in the instant case those objections are not present.

There being no error in the record, prejudicial to the appellants, the decree is affirmed.

Decree affirmed.

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


author: Conn, J.

text:
    Brownlee, Appellee, v. Pratt, Appellant.
    (No. 512
    Decided January 21, 1946.)

      Messrs. Young S Young, for appellee.

      Messrs. Carpenter é Freeman, for appellant.
   Conn, J.

Tliis case is here on appeal from the Court of Common Pleas of Huron county on questions of law by defendant, Elsie Hume Case Pratt, and on questions of law and also law and fact by plaintiff, Bertha Case Brownlee, and the parties will be referred to as they appeared in the trial court.

From the issues raised by the pleadings and from the character of the relief sought, it. appears that- this proceeding is one in chancery and is appealable on questions of law and fact. The paramount relief being equitable, it follows that the appeal on questions of law and fact invokes the chancery jurisdiction of this court and the issues raised are triable ele novo. The appeal on questions of law by each party is dismissed.

On motion of defendant, the Common Pleas Court required plaintiff to separately state and number her causes of action. The case went to trial on plaintiff’s second amended petition which contains three causes of action. However, no specific relief is prayed for on the first and second causes of action. It is our opinion that only one cause of action is pleaded in plaintiff’s second amended petition; that the prayer for a mandatory injunction is the dominant relief sought; -and that the issue of damages and prayer therefor are incidental to the equitable remedy prayed for by plaintiff.

The material allegations in plaintiff’s second amended petition, briefly stated, are as follows:

Francis B. Case, father of plaintiff, died testate in 1921, leaving his widow, the defendant, and his only child and heir at law, the plaintiff. Defendant was appointed executrix pursuant to decedent’s will and was to act in a fiduciary capacity toward plaintiff. Defendant .accepted- the trust. She, as such fiduciary, was authorized in the will to secure the highest rent obtainable from property known as the Case Block and pay same to plaintiff on the first day of each calendar month and, in addition thereto, pay an annuity to plaintiff from the income of property other than the Case Block. Defendant intentionally and maliciously and with the purpose and intention of causing plaintiff mental suffering, damage and injury disregarded the duties as such fiduciary. Defendant refused to deliver to plaintiff, among other things, the Bible of plaintiff’s mother and a picture of plaintiff’s grandmother and the conduct of defendant in this regard was arbitrary and malicious. On or about November 4, 1941, defendant entered into the burial vault of plaintiff’s father and mother, and placed therein the body oí defendant’s second husband, in total disregard and in defiance of the rights of plaintiff. Defendant caused physical changes to be made in the burial vault, for the purpose of bringing therein the body of her second husband, and she has persistently continued in her 'Course of conduct.

Plaintiff prays for a judgment against the defendant in the sum of $50,000, a mandatory injunction against defendant ordering her to remove the body of her second husband from the burial vault, and all other relief.

In defendant’s answer, she admits, among other things, that she has in her possession the Bible and picture claimed by plaintiff, but avers that the Bible was presented to her by Francis B. Case and that no claim for the picture had been made by plaintiff prior to the commencement of this action. Defendant admits further that she‘placed for burial the body of her second husband in the Francis B. Case burial vault. The answer of defendant contains a general denial and further affirmative averments that shortly after the probate of the will of Francis B. Case, plaintiff commenced two actions against defendant and others to determine the rights and interests of the parties in and to the property of such decedent; and that subsequently, on April 7,1923, the cases were fully settled by stipulations providing for mutual releases and that each of the parties should have at all times access to the Case burial lot and vault and the right to be buried therein. There are further allegations respecting the manner in which defendant managed the property of the estate, respecting the extensive repairs to the burial vault, and respecting the full performance of her duties by defendant.

No reply was filed to the answer of defendant, but the case has been presented as if all affirmative allegations in the answer had been denied by plaintiff.

A jury was impaneled in the Court of Common Pleas and at the conclusion of plaintiff’s evidence, on motions of defendant, the qourt withdrew.from the consideration of the jury the first and second causes of action and overruled defendant’s motion for a directed verdict on the third cause of action. The jury returned a verdict for plaintiff on the third cause of action and assessed plaintiff’s damages at $8,000.

The Court of Common Pleas refused to grant a mandatory injunction for the removal of the body of defendant’s second husband from the Case burial vault and dismissed the petition and prayer for such relief.

The answer of defendant admits that the body of defendant’s second husband was placed in the Case burial vault, and the evidence discloses that this was done without the knowledge or consent of the plaintiff. It further appears from the evidence that the mother of plaintiff died in 1883, the burial vault was constructed the same year and the body of plaintiff’s mother was placed therein for burial. Plaintiff testified that her father built the vault for “my father, mother and myself. ’ ’

It further appears from the record that Francis B. Case and the defendant were married in 1892; that he died in September 1921; and that his body was placed in the Case vault for burial. To accomplish the latter some changes had to be made on the inside of the vault by reason of the size of the casket. At the same time, needful repairs and structural changes . in the upper part of the vault and roof were made, the cost of such repairs and remodelling being paid by defendant. All this was done without consulting the plaintiff.

The defendant testified that there were only three places for burial in the Case vault as originally constructed; that after the body of Francis B. Case was placed in the vault there was only one place remaining; and that after the remodelling was completed there was room for an additional crypt.

In 1928, the defendant married Worthing 0. Pratt, who passed away November 1,1941, leaving defendant as surviving spouse. By defendant’s direction, the body of her second husband was placed in the Case burial vault for burial in a crypt over and above the crypts of plaintiff’s father and mother. Slight alterations in the vault were necessary to place the casket therein. Defendant caused the name, “W. C. Pratt,” to be engraved on the front of the vault in large letters and above the name, “Case,” previously engraved thereon. Plaintiff testified that she, upon discovering what defendant had done, became ill and was shocked.

It further appears from the evidence that plaintiff notified defendant to remove the body of her second husband from the Case burial vault, which she refused to do; that there was ill feeling of long standing between the parties; and that plaintiff had a desire to be reconciled to the defendant, but defendant voluntarily chose to continue the strained relationship.

However, in this kind of action, the right of recovery is not predicated alone upon the ground of malice and it is not necessary to show actual malice. It is sufficient if it appears that the act complained of was a gross, wanton, reckless or intentional disregard of the rights of the plaintiff.

It is well settled that a court of equity will exercise its jurisdiction to secure to any person the right to discharge a duty which he owes to the dead by reason of his relationship to such deceased.

The policy of the law to protect the dead and preserve the sanctity of the grave comes down to us from ancient times, having its more immediate origin in the ecclesiastical law. This salutary rule recog- ' nizes the tender sentiments uniformly found in the hearts of men, the natural desire that there be repose and reverence for the dead, and the sanctity of the sepulcher.

Defendant claims she had consulted an attorney before she adopted the course of action of which plaintiff complains. However, even if the record does disclose that defendant had acted in good faith in giving her attorney a full and fair statement of all the facts and obtained his advice and counsel in relation thereto, such defense could not defeat the claim of plaintiff in this action. The acts and things done by defendant, and of which plaintiff complains, are in themselves wrongful; and for them there is no cloak and against them there is no shield.

However, advice of counsel may be shown in mitigation of exemplary or vindictive damages, and, where malice is an essential element, the fact that defendant acted in good faith upon advice of counsel may be a good defense. 13 Ohio Jurisprudence, 203, Section 112; 15 American Jurisprudence, 612, Section 195.

On the record before us, it appears that plaintiff does not have a full and adequate remedy at law, and that she is entitled to injunctive relief as prayed for. 16 Ohio Jurisprudence, 197, Section 85; Fraser v. Lee, 8 Ohio App., 235, and authorities cited; 15 American Jurisprudence, 855, Section 36; 25 Corpus Juris Secundum, 1031, Section 9; 21 A. L. B., 651.

The issue of damages, the basis of recovery and the amount of damages, if any, have received much attention.

In this state, the general rule is recognized, that damages cannot be recovered for mental pain and anguish alone, unaccompanied by contemporaneous physical injury. The reason for the rule is that in such cases damages are too speculative and remote. 13 Ohio Jurisprudence, 164, Section 81.; Miller v. B. & O. Southwestern Rd. Co., 78 Ohio St., 309, 85 N. E., 499, 125 Am. St. Rep., 699, 18 L. R. A.,(N. S.), 949; Davis v. Cleveland Ry. Co., 135 Ohio St., 401, 21 N. E. (2d), 169.

However, where the act complained of is not only wrongful but was done intentionally and wilfully, mental suffering and anguish resulting proximately therefrom are recognized elements of damage and may be considered in determining the amount of recovery. 13 Ohio Jurisprudence, 168, Section 84; Cincinnati Northern Traction Co. v. Rosnagle, 84 Ohio St., 310, 95 N. E., 884, 35 L. R. A. (N. S.), 1030, Ann. Cas. 1912C, 639.

The rule under consideration was recognized in the cases of M. J. Rose Co. v. Lowery, 33 Ohio App., 488, 169 N. E., 716; Koontz v. Keller, Admx., 52 Ohio App., 265, 3 N. E. (2d), 694. See, also, 15 American Jurisprudence, 603, Section 185; 25 Corpus Juris Secundum, 550, Section 64.

This rule has application where there is a wilful and intentional invasion of the right of burial of the dead. 25 Corpus Juris Secundum, 1029, Section 8; 15 American Jurisprudence, 852, 853, Sections 34 and 35.

In the instant case, it was clearly shown by the evidence that plaintiff’s right of burial of the dead was transgressed by the intentional and wrongful acts of defendant, i. e., the continuing trespass and acts of indignity committed by her in and upon the place of burial of plaintiff’s parents.

Plaintiff may recover from defendant damages in an amount that will reasonably compensate plaintiff for the mental pain and anguish suffered and for the indignity felt and borne by her as the proximate results of the acts complained of.

On the is'sues joined, plaintiff is entitled to a mandatory injunction against defendant for the removal of the body of her second husband from the Case burial vault and for the removal of the name, “W. C. Pratt,” therefrom; plaintiff is.entitled to recover from the defendant damages in the sum of twenty-five hundred ($2,500) dollars; and defendant is to pay costs.

Decree and judgment accordingly.

Stuart and Jackson, JJ., concur.

Jackson, J., of the Third Appellate District, sitting by designation in the Sixth Appellate District.


author: Ross, J.

text:
    McKibben, Appellee, v. Stuhlbarg, Appellant.

      (No. 162
    Decided January 28, 1946.)

      Messrs. Nichols, Speidel & Nichols and Messrs. Hoover, Beall & Whitman, for appellee.

      Mr. Eli G. Frankenstein, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Clermont county, awarding the plaintiff compensation from the defendant, a'noncomplying employer.

The plaintiff, appellee herein, has filed a motion to dismiss the appeal on the ground that no bill of exceptions was filed in the trial court and that the only assignment of error advanced by the defendant, appellant herein, is that there is no evidence in the transcript of the record on rehearing before the Industrial Commission sustaining plaintiff’s right to compensation from the defendant.

After verdict, the defendant filed a motion for judgment in his favor notwithstanding the verdict in favor of the plaintiff. That motion was overruled and judgment was entered directing the clerk of the Common Pleas Court to certify to the Industrial Commission the verdict of the jury finding in favor of the right of the plaintiff to recover compensation from the defendant, under the Workmen’s Compensation Act.

The defendant filed no- bill of exceptions, but now claims that such filing was unnecessary to raise.the assignment of error now advanced, which'is that there is no substantial evidence in the transcript of the record of the proceedings on rehearing before the Industrial Commission showing (1) that the defendant regularly employed three or more employees and (2) that plaintiff’s disability was the result of an injury sustained in the course of and arising out of his em-employment.

It must be admitted that at first it seemed that in the-absence of a bill of exceptions not even such a contention could be. sustained, but upon further consideration, the logic of the defendant’s position seems to be unanswerable. It does not need citation of authority to sustain the statement that the Court of Appeals will in an appeal from a judgment in an ordinary civil action consider no assignment of error requiring an examination of the evidence presented to the trial court in the absence of a bill of exceptions.

If the statute (Section 1465-90, General Code) as it existed at the time this claim was filed, to wit, on July 10, 1942, had contained the provision now found therein, which became effective June 15, 1943, providing that * * Either party in any of such proceedings shall have the right to prosecute error as in the ordinary civil cases, provided that in any such proceedings the transcript of the record of rehearing before the industrial commission need not be rewritten in the bill of exceptions but the transcript of said record may be attached to and made a part of said bill of exceptions and the rulings of the court with respect to exclusion or admission of evidence shall be shown on the margin of the pages of said transcript on which objections and motions appear * * the position of the defendant would at least have been much more difficult. The status of the law at the time- the claim for compensation is originally filed governs all proceedings thereafter. State, ex rel. Longano, v. Industrial Commission, 135 Ohio St., 165, 20 N. E. (2d), 230.

Section 1465-90, General Code, as in force on July 10, 1942, did however provide:

* * Within ten days after the filing of the answer the Industrial Commission shall certify to such court a transcript of the record of snch rehearing, and the court, or the jury, under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in such fund upon the evidence contained in such record and no other evidence; * * *”

Now it is perfectly manifest that if such transcript of the record failed to contain a recital of substantial evidence sustaining the claim that the defendant was within the provisions of the Workmen’s Compensation Law as a non-complying employer, or that the plaintiff’s disability was due to an injury received in the course of and arising out of his employment, then no such evidence could have possibly been produced in the Common Pleas Court for that court can only, under the provisions of Section 1465-90, General Code (quoted), consider such evidence. Drakulich v. Industrial Commission, 137 Ohio St., 82, 86, 87, 27 N. E. (2d), 932. Any bill of exceptions which might have been filed might have contained less evidence, but could not possibly contain more.

The defendant by answer put in issue the right of the plaintiff to compensation. The defendant’s denial of such right raised among other matters the question of whether the defendant regularly employed three or more persons. It raised the question also whether the plaintiff’s disability was caused by an injury incurred during and arising out of his employment with the defendant. The defendant by filing a motion non obstante veredicto raised the question as to whether there had been presented to the trial court any substantial evidence sustaining every element of the plaintiff’s claim to compensation. Now if the transcript of the record on rehearing failed to contain substantial evidence upon ány of such necessary elements, then no such evidence could have been presented to the trial court, and the motion should have been granted. Why then would a bill of exceptions in this particular proceeding be required to determine whether such substantial evidence could have been presented under the law applicable to this review?

In McKenzie v. Industrial Commission, 24 Ohio App., 455, 155 N. E., 704, it appears that a claimant’s application for compensation was denied by the Industrial Commission on rehearing and a transcript of the record was properly certified to the Court of Common Pleas. In the opinion of Houck, J., it is stated at page 456:

“The case coming on for trial in the lower court, a transcript of the testimony taken before the Industrial Commission was offered by the plaintiff. Thereupon the defendant made a motion for a directed verdict, which motion the court sustained..

“Question: Did the trial judge commit prejudicial error in sustaining the motion for a directed verdict? This court must determine this question upon the testimony contained in the transcript offered in the trial.”

In Willett, Admr., v. N. Y. Central Rd. Co., 73 Ohio App., 59, 54 N. E. (2d), 317, this court suggested the instances in which a bill of exceptions might not be necessary in order that the Court of Appeals might consider questions concerning matters which had otherwise been properly filed in the action or proceeding.

This court in the instant review took the motion to dismiss under advisement and heard the appeal on the merits. The motion to dismiss will be overruled.

Examining the transcript of the record certified by the Industrial Commission to the Court of Common Pleas and properly filed in that court, it appears that the plaintiff was employed by the defendant as a caretaker and general handy man about his farm, title to which was in his wife’s name, and that while so employed the plaintiff was injured when he slipped upon wall paper covered with wet glue, lying upon the dining room floor of the farm house. His duties as caretaker required him to be about the entire place and while it does not appear just what the plaintiff was doing or about to do at the time he was injured, however, it may be reasonably inferred that he was engaged upon his employer’s business. The plaintiff stated further his disability was directly due to his injury so received, that while he continued self-treatment for some time, he later became incapacitated due to the continuing effects of his fall. He further states there were at least three other persons employed with him during the time he remained in his employer’s service. It appeared from other evidence in the case that such employees were independent contractors or the employees of such contractors. However, this evidence was introduced by the defendant at the rehearing and upon the approach to the matter, this court may not consider the weight of the evidence.

If the evidence presented to the trial court were before this court in a bill of exceptions, the conclusion upon same might be radically different from that now reached to the effect that while the evidence is in sharp conflict on many essential points and its preponderance in favor of plaintiff doubtful, there is substantial evidence sustaining the conclusion of the jury that the plaintiff was entitled to compensation.

It is to be borne in mind that, in this consideration of the appeal of the defendant, confined as it is solely to the transcript of the record upon rehearing, this court is greatly limited in its examination and that every reasonable presumption and inference must be extended the plaintiff. He has a verdict in his favor. It is only upon a showing that such verdict could not be sustained because no substantial evidence could have been presented to the jury that the defendant may prevail. An examination of the transcript sustains no such conclusion and the judgment is, therefore, affirmed.

Judgment affirmed.

Hildebrant, P. J., Matthews and Róss, Jj., concur in the syllabus, opinion and judgment.


author: Miller, J.

text:
    Snouffer, Appellee, v. The Potter Lumber & Supply Co., Appellant.

      (No. 3840
    Decided October 25, 1945.)

      Messrs. Nolan é Young, for appellee.

      Messrs. Burr, Porter, Stanley é Treffinger, for appellant.
   Miller, J.

This case is here on appeal on questions of law from a judgment of the Court of Common Pleas of Franklin county, entered upon a verdict in favor of Stephen Snouffer, plaintiff, appellee herein, and against The Potter Lumber & Supply Company, defendant, appellant herein, in the sum of $500.

The plaintiff alleged in his-petition that on December 19, 1941, at about 8:15 a. m., his automobile, a school bus, was damaged to the extent of $500 in a collision with a truck being operated by an employee of the defendant. The accident happened on Gran-ville road east of Worthington. The specifications of negligence are:

1. Defendant carelessly and negligently failed to exercise any care to safeguard the lives and property of those in the lawful use of the highway.

2. Defendant failed to keep the truck on the right side of the road.

3. Defendant failed to keep a lookout for persons using the highway.

4. Defendant emerged from a private driveway without yielding the right of way to the plaintiff.

The answer is a general denial and an allegation of contributory negligence on the part of the plaintiff.

The record discloses that a private driveway was located on the defendant’s property, which driveway intersected Granville road. The defendant’s track was proceeding south in this driveway and then turned to the right and was proceeding slowly in a westerly direction on Granville road when the rear end of defendant’s truck was struck by the front end of the plaintiff’s school bus which also was proceeding in a westerly direction on Granville road. Granville road is wide and well paved and is a main highway running in an easterly and westerly direction. It was an extremely foggy morning. The witnesses placed the visibility at anywhere from 30 to 50 feet.

Interrogatories were submitted to the jury and the jury’s answers to such interrogatories comprise a complete finding of facts. The interrogatories and answers read as follows:

(1) “Did Mr. Snouffer see the truck at the extreme range of his vision, that is, as soon as the foggy condition of the atmosphere would permit? Answer: Yes.

(2) “How far, in feet, was Mr. Snouffer from the truck when he first saw the truck? Answer: 30 feet.

(3) “Was Mr. Snouffer going 20 to 25 miles per hour when he first saw the truck? Answer: No.

(4) “If your answer to the foregoing question is ‘No,’ at what rate of speed was Mr. Snouffer traveling in miles per hour when he first saw the truck? Answer: 15 to 20.

(5) “Did the front end of Mr. Snouffer’s bus collide with the rear end of the truck? Answer: Yes.

(6) “Was the collision point under the railroad bridge about 40 to 45 feet west of the driveway from which the truck emerged? Answer: 40 feet.

(7) “At the time that Mr. Snouffer first saw the truck, was it about two-thirds into Granville street with about one-third still in the driveway? Answer: Yes.”

The first assignment of error is that the court erred in overruling defendant’s motion for judgment notwithstanding the verdict, for the reason that the jury’s special findings of fact are inconsistent with the general verdict for plaintiff and entitle defendant to final-judgment in its favor as a matter of law.

We are of the opinion that this assignment of error ' is well founded and should have been sustained. The defendant is entitled to a judgment notwithstanding the Verdict because the jury’s special findings of fact are inconsistent with the general verdict for the plaintiff, to wit, the jury found that the plaintiff saw defendant’s truck on the highway ahead of him when it was 30 feet away; that the plaintiff saw the truck at the extreme range of his visibility of 30 feet (that being as far as he could see in the fog); and that the plaintiff’s bus struck the rear end of defendant’s truck at a point 40 feet beyond the position of the truck when the plaintiff first saw it, that is, plaintiff could see only 30 feet because of the fog, but, he went 70 feet and his bus struck the rear end of the defendant’s truck. If a person driving in a fog can see only 30 feet he miist drive so that he can stop within 30 feet. If he is driving at such a speed that he cannot stop within that distance, then he is violating the law. The assured-clear-distance-ahead rule is clearly laid down in the case of Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, the second paragraph of the syllabus of which reads as follows:

“To comply with the assured-clear-distance-alfead provision of Section 12603, General Code, the driver of a motor vehicle must not operate' it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith. ’ ’

The jury found that the defendant’s truck entered the main highway when the plaintiff was 30 feet away and, therefore, the assured clear distance ahead for the plaintiff was not cut down because his visibility in the fog was only 30 feet ahead, but the jury found further that the defendant’s truck had proceeded westerly on the highway 40 feet before the actual impact occurred. Therefore, the plaintiff’s school bus traveled not only 30 feets the range of his visibility, but traveled an additional 40 feet, making a total of 70 feet, before the collision occurred.

The plaintiff is contending that the defendant violated Section 6307-43, General Code, which reads as follows:

“The operator of a vehicle, street car or trackless trolley about to enter or cross a highway from a private road, driveway, alley or building shall stop and yield the right-of-way to all traffic approaching on said highway.”

From the jurors’ answers to interrogatories it is our conclusion that this section of the General Code was not violated by the defendant. The jury found that the defendant’s truck was two-thirds into the intersection when the plaintiff was 30 feet away. Naturally, when the defendant’s truck arrived at the intersection, the plaintiff was over 30 feet away, because his bus was moving at a speed of 15. to 20 miles an hour. That would be beyond the vision of the defendant’s employee, he had a right to enter the intersection, and all oncoming traffic was bound to comply with the assured-clear-distance-ahead rule. The Smiley case, supra, has been uniformly .followed and we see no necessity of citing other cases laying down the same rule. Holding as we do that the court erred in overruling the defendant’s motion for judgment notwithstanding the verdict, the other assignments of error become academic and will not be considered further.

The judgment of the trial court is reversed and judgment entered for the defendant.

Judgment reversed.

Hornbeck, P. J., and Montgomery, J., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


author: Hildebrant, P. J.

text:
    Jones, Appellant, v. Jones, Appellee.
    (No. 6553
    Decided October 22, 1945.)

      Mr. Wm. B. Petermann, for appellant.
    No appearance for appellee.
   Hildebrant, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas refusing to grant an uncontested divorce.

The petition merely.sets forth that defendant had been guilty of extreme cruelty and gross neglect of duty toward the plaintiff.

Plaintiff testified as to the jurisdictional facts and merely that defendant left the house, that plaintiff had been and still was providing, and that he knew of no reason for defendant so leaving. Two witnesses corroborated the evidence of plaintiff by testifying that he provided a proper home and support, that defendant left the home, and that the witnesses knew of no reason for defendant’s leaving.

The trial court found that the evidence disclosed merely a wilful absence of one year and three months without any aggravating circumstances constituting gross neglect of duty or extreme cruelty, and that, therefore, plaintiff failed to sustain the allegations of the petition.

In order to reverse a judgment, it should be plain to the reviewing court that the conclusions of the trial court cannot be supported by any rational view of the evidence. On the contrary, in the instant case, it is plain to this reviewing court that the trial court did take a rational view of the evidence disclosed by the record.

On authority of Porter, Exr., v. Lerch, 129 Ohio St., 47, 193 N. E., 766, with attention directed to the body of the opinion at page 64, the "judgment of the trial court is affirmed.

Judgment affirmed.

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


author: Doyle, J.

text:
    The State of Ohio, Appellee, v. Martin, Appellant.
    (No. 3764
    Decided March 13, 1946.)

      Mr. Alva J. Russell, prosecuting attorney, Mr. Robert Asar and Mr.'Gilbert A. Harts, for appellee.

      Mr. J. P. Riddle, for appellant.
   Doyle, J.

The case before this court is an appeal on questions of law from the Court of Common Pleas of Summit county, and is predicated upon a judgment which convicted »the appellant herein of the crime of having - carnal knowledge of the prosecutrix, forcibly and against her will (Section 12413, General Code).

The record shows that a jury was waived by the accused and the trial had to the court.

The only error claimed is that the judgment rendered is against the weight of the evidence.

This court is a court of review, restricted in this case to a pronouncement of the law, and without power to act as a trier of the facts.

If those charged with the duty to pass judgment upon the facts might say not unreasonably that the accused (1) had carnal knowledge of the prosecutrix, and (2) committed it forcibly and against her will, beyond a reasonable doubt, the members of this court are not at liberty to substitute their judgment for that of the judge of the Court of Common Pleas empowered by law to determine the facts.

A different question would be here if'we could say as a matter.of law that there was no evidence to justify the conviction, or that the judgment was manifestly against the weight of the evidence. We cannot say that here.

We may presume that the trial court believed the testimony of the prosecuting witness,, shown in the following question and answer:

“Q. What is the fact: did you try to resist him from having sexual intercourse ¶ A. I tried. all I could, ’ ’ and that this evidence, coupled with a fantastical array of facts, among which was the farcical arrest of the prosecutrix by the accused, who claimed that he was a police officer acting in the line of his duty, in which he unlawfully restrained her of her liberty and subjected her to a series of frightful experiences, which finally culminated in sexual intercourse, was sufficient in its judgment to establish the guilt of the accused beyond a .reasonable doubt.

It is a well-known rule that, while consent negatives rape, where a woman is affected by terror or is in fear of great bodily injury and harm, brought into being by an accused, who has placed his victim within ■his power and control, intercourse under such circumstances without consent is rape, even though the victim might have used greater physical resistance or cried out, when it is. shown that her will was overcome by the fear or duress.

We' do not think it necessary to set out the evidence . in the record, but deem it sufficient for this court to tersely state that it is of such a character that the ' court which determined the facts had before it sufficient evidence to convict the appellant.

Judgment affirmed.

Washburn, P. J., and Stevens, J., concur.


text:
    In re Trust of Marshall.

      (No. 3862
    Decided February 13, 1946.)

      Mr. J. Paul McNamara and Mr. H. E. Gingher, for appellee, John L. Marshall.

      Mr. Ray W. Kilbourne, for appellant, Mary M. Von Schmidt.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin county which ordered the removal of Mary M. Von Schmidt as trustee under the will of Alma F. Marshall, deceased. The record shows that Alma F. Marshall died testate in July 1942; that her will was duly admitted to probate; and that on July 14, 1942, Mary M. Von Schmidt was appointed executrix. The will also appointed her as trustee but she failed to qualify as trustee until December 31, 1943. The appellant, Mary M. Von Schmidt is the daughter, and the appellee, John Marshall, is the son of the testatrix. During the latter part of 1943, the appellee conducted an investigation of the administration of the estate which he believed was not being administered according to law. The executrix filed her first and second accounts, and in January 1944, the appellee raised objections to certain items of disbursements in such accounts. The Probate Court directed the appellant, in March 1944, to file amended accounts, which she did on April 6, 1944.

On April 20, 1944, the appellee filed exceptions to these accounts. The exceptions and the accounts were referred to a special master commissioner who took evidence in regard thereto and rendered to the court a comprehensive report in which he sustained the exceptions to certain items in the account and found that the executrix should be surcharged as to those items. Judge McClelland of the Probate Court modified the findings of the special master commissioner with respect to one item and confirmed the report with respect to’all other matters. The court surcharged Mary M. Yon Schmidt in the sum of $5,259.32. A judgment was rendered against her personally on December 22, 1944, for that amount.

Thereafter, on April 5, 1945, the appellee filed his motion in the Probate Court for the removal of Mary M. Von Schmidt as trustee, on the ground that she had been guilty of neglect of duty as trustee, and that the interest of the trust demanded that she be removed as trustee. That motion was filed under - the •provisions of Section 10506-53, General Code. Proper notice was given to the trustee of the hearing, which was continued at the request of the trustee until May 3, 1945, at which time the Probate Court heard the evidence on the motion. The appellant appeared with counsel and opposed the motion. The trial court found that the appellant had been guilty of neglect of duty as trustee and the interest of the trust demanded that she be removed. The order of removal was entered on July 25, 1945.

In her assignments of error the appellant contends that the Probate Court erred in permitting the institution of the proceeding for removal by motion rather than by petition. Section 10506-53, G-eneral Code, which provides for the removal of a fiduciary or trustee does not specify the form of pleading which is required in instituting a removal proceeding. The third and fourth paragraphs of that section provide as follows:

“The Probate Court may remove any such fiduciary, he having not less than ten days’ notice thereof, for habitual drunkenness, neglect of duty, incompetency, fraudulent conduct, because the interest of the trust demands it, or for any other cause authorized by law.

“The Probate Court may remove a trustee upon the written application of more than one-half of the persons having an interest in the estate controlled by such trustee, but the trustee himself is not to be considered as a person having an interest in such estate under such proceedings; except that no trustee appointed under a will shall be removed upon such written application unless for a good cause.” (Italics ours.)

Appellant contends that, since this section requires a filing of a “written application,” a petition should be filed as in an adversary action. In 18 Ohio Jurisprudence, 134, Section 90, there is found a statement that an application for removal may be made by motion in writing or by a formal complaint. It has been the common practice in Ohio to institute removal proceedings by the filing of a motion, which practice this court approves. See Marshall v. Heckerman, 103 Ohio St., 559, 134 N. E., 449; In re Breckinridge, 7 C. C. (N. S.), 86, 17 C. D., 688; and Gorsuch v. Stabler, 16 Ohio Law Abs., 250. Upon a proper showing the court may act sua sponte. In re Estate of Adams, 71 Ohio App., 113, 48 N. E. (2d), 127.

The appellant contends that the court erred in refusing to make the remaindermen in the trust parties to the action. Section 10506-53, General Code, does not provide for giving notice to any persons other than the fiduciary or trustee. In the instant ease the trustee alone was a necessary party to the determination of the issue.

The appellant contends that the court erred in not sustaining the motion of the trustee to make the motion for removal definite and certain. It is the contention of the appellant that the court should have required the movant to set forth in detail the facts on which he relied in seeking the appellant’s removal. Again it must he observed that a removal proceeding is controlled entirely by statute (Section 10506-53, General Code) which neither prescribes the procedure nor the particularity of the pleading which may be filed to effect a removal. The trial court found that any proper complaint which would bring to the attention of the court the matters complained of would he sufficient to meet the requirements of the statute, and that the matter of definiteness and certainty of the allegations set forth in the motion is a matter within the sound discretion of the court. We approve of the judgment of the trial court in this regard and further hold that upon the examination of the record there is no evidence to indicate that the appellant was in any way inconvenienced, surprised or prejudiced by the failure to sustain her motion to make the motion for removal definite and certain. The record clearly discloses that the appellee relied on the record of the hearing, which took place on exceptions to her accounts as executrix, and the judgment of the Probate Court in surcharging her personally for a large sum of money.

The appellant contends that the trial court committed error in the admission of certain evidence, to wit,, the file and records in the estate of Alma P. Marshall, deceased, the record of the hearing before the special master commissioner on exceptions to the accounts of the executrix, and a copy of a letter addressed to the executrix and her attorney. The administration of the estate by the appellant in her capacity as executrix and the administration of the trust by her in the capacity of trustee are closely related and it was proper to present to the court at the hearing on a motion to remove, the record of her administration of the estate as executrix and the record before the special master commissioner on exceptions to the account.

The record in this case discloses that, under the will of the testatrix, the appellee and the appellant each shared one-half of the income arising from the estate. Under the law, they were entitled to. the income from the date of death of the testatrix, payable quarterly or oftener, as provided in the will. The record shows that the executrix did not qualify as trustee for a period of approximately seventeen months after the death of the testatrix. It was not until the appellee pressed the matter in the Probate Court that the appellant qualified as trustee. During this interval, the appellee was receiving no income from the estate as he was entitled to receive under the law and under the provisions of the will.

While it is true that the appellant acted in two capacities, one as executrix and the other as trustee, nevertheless, if the court should have found, which it did in this ease, that the executrix had been guilty of neglect in the administration of the estate, and in fact was' surcharged personally for a large sum of money, the court, in a hearing on a removal of the appellant as trustee, had the power to take such matters into consideration in determining whether the interest of the trust required her removal. Suppose a fiduciary is convicted of embezzlement in a matter not involving the trust. Upon being properly informed of that fact, can it be disputed that the court would be justified in removing the fiduciary after due notice and hearing on the ground that the interest of the trust demanded it?

On the question of the power of the court to take into consideration the conduct of Mary M. Von Schmidt in her capacity as executrix, see Scott on Trusts, Section 107, which uses the following language:

“Where a person is both executor and trustee, and he is guilty of such misconduct as executor as to cause his removal as executor, ordinarily he will be removed also as trustee, even though the two offices are not inseparably connected. * * * Where the same person is executor and trustee, evidence of his misconduct as executor is admissible in a suit to remove him as trustee/’

In the case of In re Estate of Adams, 71 Ohio App., 113, 48 N. E. (2d), 127, wherein it was sought to revoke the letters of appointment of an administrator de bonis non, the court, on page 120, said:

“After a consideration of the authorities, we are of the opinion, and so hold, that Hooffstetter had a right to file and prosecute said motion in the Probate Court. We are further of the opinion that the Probate Court was fully justified in removing said administrator upon the motion of Hooffstetter; indeed, if the conduct of the administrator, after the judgment of this court, had come to the knowledge of the Probate Court in any manner, and the administrator had been given an opportunity to defend his conduct, the Probate Court could have sua sponte removed said administrator, and it would have been the court’s duty to do so.”

The appellant contends that the judgment of the trial court is not sustained by sufficient evidence and is contrary to law, and that the court abused its discretion in ordering her removal. This proceeding was instituted under the provision of Section 10506-53, General Code, which provides for the removal of a “fiduciary.” The term “fiduciary” as used in that section includes “trustee.” Section 10506-1, General Code. It will be observed that that section, after enumerating specifically certain causes for removal, provides that any such fiduciary may be removed “because the interest of the trust demands it.” In regard to a trustee, the section provides that “no trustee appointed under a will shall be removed upon such written application unless for a good cause.” Notwithstanding the provisions of that section, it is well established that the Probate Court is given a broad discretion in a proceeding for the removal of a fiduciary or trustee. In 18 Ohio Jurisprudence, 129, Section 86, it is stated:

“A very broad discretion in the matter of removal is given the court by the statute, which, after enumerating specific causes, states, in addition, ‘because the interest of the trust demands it.’ ” See Gorsuch v. Stabler, supra; Speer v. McKee, 21 Ohio Law Abs., 77; Boedeker v. Herr, 30 Ohio Law Abs., 374.

An incomplete stipulation was filed with respect to the use of exhibits 1 and 2, being the records of the administration of the estate and the transcript of the hearing before the special master commissioner. Such exhibits are not available for the purpose of examination by this court, as they are not attached to the bill of exceptions and as the stipulation was not signed by both counsel. The trial court had all these matters before it and this court must proceed on the assumption that the trial court on consideration of all of the evidence was justified in ordering the trustee removed by reason of incompetency and neglect of duty. Her removal was also justified because of proof of hostility toward her brother, the appellee. She was surcharged for a large sum of money and by reason thereof the interest of the trust demanded her removal.

For this court to reverse the judgment of the trial court, it would be encumbent upon this court to find that the trial court, after hearing all of the evidence, abused its discretion in ordering the removal of the appellant. This we cannot do on the record before us. We are of the opinion that the record discloses no prejudicial error, and that the judgment is not contrary to law.

The judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    The State of Ohio, Appellee, v. Amman, Appellant.
    (No. 6651
    Decided May 29, 1946.)

      Mr. John D. Ellis, city solicitor, Mr. Robert J. Paul, city prosecutor, and Mr. Ralph E. Gors, for appellee. Mr. John W. Driskill, for appellant.
   Doyle, J.

Jacob Amman was convicted in the Municipal Court of Cincinnati of violating Section 13059, General Code. Appeal is prosecuted direct to this court on questions of law.

The charge upon which he was tried, alleged that he did “unlawfully and purposely, then and there, accept a wager for money, on the speed and endurance of a beast, to wit: $2 to win and $1 to place on a certain race horse, to wit: ‘Brass Man,’ entered and scheduled to run in the 4th race at Rockingham race track, Salem, N. H., on October 15, 1945.”

It is argued that this section of the Code has no application to the offense charged, and that the acts of which complaint is made are covered only by another section of the Code — to wit, Section 13062, General Code.

The accused contends that Section 13059, General Code, “is not a general statute, and that, even if some latitude of construction should be allowed a trial court relative to General Code 13059, the statute, at most, could only be construed to mean to make the act of playing a game not elsewhere specifically described, or making a wager not elsewhere specifically described, an act punishable as a crime. In other words, existence of a statute specifically describing an offense would preclude construction of General Code 13059 to include such specifically described acts.”

Section 13059, General Code, provides:

“Whoever plays a game for money or other thing of value or makes a wager for money or other thing of value, shall be fined not more than one hundred dollars or imprisoned not less than ten days nor more than six months, or both.”

Section' 13062, General Code, provides:

“Whoever keeps a room or building, or portion thereof, or occupies public or private grounds with apparatus, books or, other device for recording wagers or selling pools, or records wagers or sells pools upon the result of a trial or contest of skill, speed or power of endurance of man or beast, or, being the owner, lessee or occupant of such room, building or portion thereof, knowingly permits it to be so used or occupied, or keeps, exhibits or employs therein a device or apparatus for recording such wagers, or for selling such pools, or becomes the custodian or depositary for hire or reward of money, property or other thing of value so staked, wagered or pledged, shall be fined not less than five dollars nor more than five hundred dollars or imprisoned in jail not less than ten days nor more than six months, or both.”

Inspection of the latter statute will reveal that it specifically makes unlawful the offense charged in the affidavit, and the courts have so ruled. See: State v. Pearlman, 136 Ohio St., 36, 23 N. E. (2d), 499, and In re Sulzmann, Sheriff, 125 Ohio St., 594, 183 N. E., 531. The prosecution in the case under consideration could have been brought under this statute.

Is it a fatal error to bring it under the former (Section 13059, General Code) ?

This section makes it unlawful to make a wager for money or other thing of value.

What is a wager? Judge Spear, in Stevens v. Cincinnati Times-Star Co., 72 Ohio St., 112, 73 N. E., 1058, 106 Am. St. Rep., 586, has cited with approval (at pp. 148-149) Bouvier’s definition: “Wager is: ‘a bet; a contract by which two parties or more agree that a certain sum of money, or other thing, shall be paid or delivered to one of them on the happening, or not happening of an uncertain event. * * * A wager is something hazarded on the issue of some uncertain event; a bet is a wager, although a wager is not necessarily a bet.’ ”

Under this definition of the word, if A gives B money under an agreement that A will forfeit or lose the money to B in the event that a certain horse loses a race, but will, if the horse wins, not only get his money back but also receive an additional amount, both A and B are engaged in making a wager. And it is of no importance that B is acting in the capacity of a “bookmaker” and telephones the agreement or sends the money wagered and the agreement on to a principal with whom he is associated.

It is of no consequence that the two Ohio statutes may cover the same set of facts. They are not inconsistent with each other, nor are they ambiguous, and both are in full force and effect.

It is sometimes said that, under proper conditions and with important limitations, the express mention of a person,' thing or consequence in a statute is tantamount to an express exclusion of all others. (The student of Latin will recognize the maxim “expressio unius est exclusio alterius.”) However, this rule is useful only as a guide in detérmining the probable intention of the Legislature. Stated in other language, the special mention of one thing or circumstance sometimes indicates that it was not intended to be covered by a general provision which would otherwise include it. Our problem deals with two separate statutes, and in interpreting them we reach the conclusion that it was not the intention of the Legislature, when it enacted or amended Section 13062, General Code, to limit in any way the general application of Section 13059, General Code. If there had been such an intention, a few simple words could have expressed it. Courts do not favor the repeal of a statute nor the curtailment of its scope by implication. Nor will courts establish Procrustean standards, to which all statutory language must be made to conform.

Of course, a different situation would be presented if prosecution under the statutes^ were directed toward a gambler operating under the authority of the state law (Section 1079-8, General Code), because “No criminal prosecution can be sustained in Ohio except for an act done in violation of a statute or ordinance legally passed; and the courts will not construe that to be a crime punishable under one statute which was done under authority especially granted by another statute.” Toledo Disposal Co. v. State, 89 Ohio St., 230, 106 N. E., 6, L. R. A. 1915B, 1207.

It is contended that there is no evidence that a horse called “Brass Man” ran a race at a track called “Rockingham”; and that “If such a race did not take place and if such a horse did not run, the essential elements of ‘chance’ and ‘prize’ are not proved by any evidence. ’ ’

On this question: (a) The offense which the statute designs to punish is the act of wagering and not the winning or losing of money. The wager is complete when the contract is made, and whether or not the scheduled event which is its subject takes place, does not make the contract or agreement any less a wager.' (b) There is some evidence in the record of the existence of a so-called “Racing Form,” which scheduled entries of horses, including the horse in question, which were to be run at Rockingham track on that day. The “Form” was a part of the equipment in the defendant’s place of business, and was there examined by the bettor. But if, under the statute, it was necessary to prove that “Brass Man,” a horse, was actually scheduled to run a race at a track called “Rockingham,”, that fact, in the absence of evidence Mo the contrary, was sufficiently established by the evidence of the bettor, who testified that he gave his money to “win and place” on such a horse at the indicated track to the defendant, that the defendant accepted it and thereby completed' a contract of wager on that horse at that track.

The evidence shows that the bettor, a policeman, after stating his bet to the accused, handed him a ten-dollar bill, and the accused “counted out” seven dollars in change and placed the money on the bar. Thereupon the officer identified himself as a policeman and informed the accused that he was under arrest. The astonished accused thereupon attempted to dispose of the ten-dollar bill and fled from the premises.

It is claimed that these circumstances establish the abandonment of a plan to commit a crime, on the theory that a crime had not-yet been completed. Defense counsel states: “There is in every design or plan to commit a crime a place of legal repentance or locus penitentiae, whereby the one planning to' commit may abandon the idea and tbns avoid criminal liability. Tbis is true where one of tbe persons who has entered into a conspiracy, necessarily involving an overt act; abandons tbe plan before tbe act is done.”

Tbe weakness of tbis argument is that tbe offense of wagering was committed and tbe contract thereof was made when tbe money was accepted, as heretofore stated in this opinion, and tbe theory of abandonment is untenable after an offense is committed. Tbe evidence shown above indicates rather “flight” after the commission of tbe crime. Beference is made to 12 Ohio Jurisprudence, Criminal Law, Section 313, and cases therein cited, as bearing upon tbe legal significance of “flight.”

If those charged with the duty to pass judgment on the facts (in this case a jury, and the trial judge later on the motion for a new trial) might not unreasonably say that the accused made a wager for money with another, the members of this court are not at liberty to substitute their judgment for the judgment of those empowered by law to determine the facts.

A different question would be presented if we could say as a matter of law that there was no evidence to justify the conviction, or that the judgment was manifestly against the weight of the evidence. We cannot say that here.

Directing attention specifically to each and every error claimed, we find none of a prejudicial nature.

The judgment is affirmed.

Judgment affirmed.

Skeel, P. J., and Morgan, J., of tbe Eighth Appellate District, and Doyle, J., of tbe Ninth Appellate District, sitting by designation in tbe First Appellate District.