author: Fess, J.

text:
    Ellis, Appellee, v. Ellis, Appellant.

      (No. 488
    Decided January 19, 1953.)

      Mr. Gerald P. Openlander, for appellee.

      Messrs. Taylor, Cruey S Kelb, for appellant.
   Fess, J.

This is an appeal on questions of law from an order of the Common Pleas Court entered after hearing on a motion of the plaintiff-appellee for an order to construe and implement certain provisions of a divorce judgment, with a separation agreement incorporated therein, entered at a prior term on August 15,1951.

Pursuant to the terms of the separation agreement, defendant conveyed to plaintiff two parcels of real estate located in Lucas county, Ohio. With respect to this property, the separation agreement provides as follows:

“In the event the wife decides to sell either of the aforementioned properties and receives a bona fide offer for the same which she desires to accept, the husband shall have the right to purchase said property at the price and upon the terms provided for in said offer within five (5) days of receipt of written notice of such offer. In the event such right is not exercised by the husband within five (5) days of such notice, the wife shall be free to accept said offer and dispose of said property. If the husband elects to purchase said property he shall do so by executing and delivering to the wife a binding agreement to purchase such property upon the same terms and conditions as contained in said offer and shall thereupon comply with the same. ’ ’

On April 29, 1952, plaintiff advised defendant that she desired to sell one of the parcels of real estate in accordance with the terms of an offer to purchase it for the sum of $56,000, which offer she had received from one Overmyer. On May 1, 1952, defendant offered in writing to purchase the property from plaintiff on the same terms and conditions of the offer of Overmyer, to wit, for the sum of $56,000 payable $100 therewith, $2,500 upon acceptance of the offer, and the balance upon the date of closing, the ‘ ‘ real estate commission, if any, to be paid by seller.” On May 6,1952, plaintiff accepted such offer and acknowledged receipt of $2,500.

Thereafter, a disagreement arose between the parties with respect to deducting from defendant’s offer an amount equal to a broker’s commission. On May 13, 1952, defendant was advised by his attorney that the title to the property was approved. On May 17, 1952, plaintiff filed a motion for a citation for contempt upon the ground that defendant had failed to comply with the terms of the original decree by failing to complete the payment of the purchase price. Upon appeal from an order adjudging defendant in contempt, such judgment was reversed, and the cause was remanded with directions to discharge the defendant.

On August 6, 1952, plaintiff filed her motion herein, alleging in substance that defendant had stated he would not pay the full purchase price contained in the Overmyer offer and he insisted he be allowed to purchase the property without payment of the broker’s commission; that defendant had cast a cloud on the title of the premises by placing on record in the recorder ’s office of Lucas county certain letters between himself and plaintiff; and that, incident to the possible sale of the other parcel of property covered by the separation agreement, it was desirable and necessary for the court to construe and implement the original decree as regards the rights of the parties in connection therewith, and to define the rights of the defendant and the length of time within which he should complete the purchase of either parcel of property. Plaintiff prayed for an order construing the decree, defining the rights of the parties and any third party offering to purchase the real estate, fixing the length of time which may elapse before the defendant may lose his right to purchase said property, and, if necessary, implementing the final decree to such extent as may be necessary. The judgment from which this appeal was taken was entered upon this motion on September 13, 1952. In the judgment, the court found that the wording of the paragraph of the separation agreement is plain and clear; that the words, “and shall thereupon comply with same,” should be construed to mean that, in the event defendant should exercise his option to purchase, he thereby agreed to purchase such real estate in strict accordance with the terms and conditions of any offer made by any third person; and that upon the showing of good title in the plaintiff the defendant should “immediately and in no event more than three days after the showing of good title in the plaintiff, complete the transaction in strict accordance with any agreement which may have been executed by him, ’ ’ such construction to apply to both parcels of real estate mentioned in the settlement agreement.

The court found further that under date of May 13 the defendant was notified by his attorney that- plaintiff had good title to the premises; that plaintiff in open court had tendered to the defendant a good and sufficient deed for the premises; that defendant for a period of four months had failed and refused to purchase the same in accordance with his offer and in accordance with the terms of the settlement agreement; that by virtue thereof the defendant lost any and all right which he may have had to purchase such real estate; and that the plaintiff is free to sell and transfer the real estate to Overmyer free and clear of any right the defendant may have therein.

The court found further that the plaintiff suffered damages by virtue of the defendant’s failure to complete his agreement, but made no finding as to the right of plaintiff to retain the entire sum of $2,600 .deposited by defendant, or as to the extent of damages suffered by plaintiff.

No specific reservation of continuing jurisdiction was made in the original decree.

Beyond peradventure of doubt, a court has no jurisdiction to modify a divorce judgment after term, except for fraud or upon other grounds enumerated in Section 11631, General Code. Law v. Law, 64 Ohio St., 369, 60 N. E., 560; Kettenring v. Kettenring, 29 Ohio App., 62, 163 N. E., 43; Jelm v. Jelm, 155 Ohio St., 226, 98 N. E. (2d), 401, 22 A. L. R. (2d), 1300. A judgment concludes all matters that were controversial between the parties prior to its rendition and substitutes new obligations upon the parties, based upon antecedent but recently ascertained rights and duties. It must be regarded as final and conclusive of the litigated matters therein adjudged. The salutary principle of the finality of judgments has long been recognized by the courts as well as the people through the General Assembly. Under the Ohio General Code, it is only in exceptional instances, specifically set forth, that the judgment of any court may be affected by any subsequent proceeding after term. Cf. City of Cincinnati v. Cincinnati Inclined Plane Ry. Co., 56 Ohio St., 675, 47 N. E., 560.

The contract incorporated in the original decree provides that, upon executing and delivering a binding agreement to purchase the property, the husband “shall thereupon comply with same.” In the judgment from which this appeal was taken, the court, in an attempt to construe the quoted phrase, actually amended the agreement to provide “immediately and in no event more than three days after the showing of good title in the plaintiff.” Assuming (but not deciding) that the court in which a divorce judgment is entered has jurisdiction at a subsequent term on application of one of the parties to construe its former judgment, in the absence of evidence disclosing a contrary intention on the part of the parties, the court in the instant case, by way of construction, could only determine that compliance was required within a reasonable time in the light of the circumstances existing at the time of the exercise of the option.

In the light of all the facts and surrounding circumstances, it is our opinion that the trial court erred in determining that a reasonable time was not more than three days, and in terminating all right, title and interest of the defendant in said real estate.

We have found no authority supporting the proposition that a court in which a divorce judgment is entered may, at a subsequent term upon application in the same case, enforce provisions of its former decree. With respect to judgments for alimony only, the court has continuing jurisdiction to enforce payment because jurisdiction is expressly or impliedly reserved. Meister v. Day, 20 Ohio App., 224, 151 N. E., 786. Likewise, where a decree of divorce provides for the support of minor children, the jurisdiction of the court is continuing in character, and no express reservation in the decree is necessary to support such continuing jurisdiction. Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10; Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212. A court of chancery has power to entertain an action which has for its purpose the enforcement of a judgment previously rendered, in order that complete justice may be done to the parties in interest as the exigencies of the case may require. 31 American Jurisprudence, 367, Section 888; Degenhart v. Harford, 59 Ohio App., 552, 18 N. E. (2d), 990; Local Loan Co. v. Hunt, 292 U. S., 234, 78 L. Ed., 1230, 54 S. Ct., 695, 93 A. L. R., 195.

With respect to judgments in general, in 49 Corpus Juris Secundum, 1072, Section 585, it is said that the rule with reference to the court’s loss of jurisdiction over its judgments after term merely bars the court’s right to alter, modify or change them but does not preclude their enforcement as originally rendered. The author cites Lincoln Bldg. & Loan Assn. v. Humphrey, Judge, 274 Ky., 359, 118 S. W. (2), 736, which was an equity case in which the court expressly retained jurisdiction.

Although no authorities directly in point have come to our attention, it would seem to follow that where a divorce judgment contains provisions with respect to property rights in futuro or of an executory nature, the court entering the judgment would likewise have continuing jurisdiction, impliedly reserved, to enforce or implement the rights secured by such provisions. Since the defendant has appeared in the present proceeding, the question of jurisdiction of the person is not presented.

Although the jurisdictional question is not free from doubt, we reach the conclusion that upon an appropriate application and evidence in support thereof, a court which at a prior term has entered a divorce judgment has jurisdiction to enter a judgment ancillary in nature to enforce compliance with the terms of the original judgment. Since the motion in the instant case has the attributes of a petition for specific performance, it is equitable in nature and should be determined upon equitable principles.

In the interests of justice between the parties, equitable considerations require that a reasonable time be given to defendant to complete the contract of purchase. Under the facts presented by the record before us, we conclude that the defendant should be given 30 days from the entry of the judgment in this court to comply with the terms of his agreement to purchase the property in question by the payment of the balance of the purchase price, $53,400, upon delivery to him of a good and sufficient deed, and that in event of failure of defendant to make such payment within said period of 30 days he shall forfeit any and all rights with respect to the premises in question and his agreement to purchase pursuant to the provisions of the divorce judgment.

Judgment accordingly.

Conn and Savord, JJ., concur.

      The writer of the opinion seriously doubts the jurisdiction of the Court of Appeals to enter an order upon an appeal-on questions of law only in compliance with the finding in the last paragraph, and is of the opinion that the court could only reverse the judgment below.


source: Caselaw Access Project

author: Hunsicker, J. Doyle, P. J.,

license: Public Domain

text:
    Waters et al., Appellees, v. Novak et al., Appellants.
    (No. 245
    Decided May 6, 1953.)

      Mr. Virgil D. Allen, Jr., and Mr. Wm. G. Batchelder, Jr., for appellees.

      Messrs. Bennett é Dannley, for appellants.
   Hunsicker, J.

This is an appeal on questions of law.

Robert B. Waters and his wife, Blanche L. Waters, the appellees, herein called Waters, purchased a house and lot in a suburban village from Walter J. Novak and his wife, Virginia (Julia) Novak, the appellants, herein called Novak. After Waters had occupied the home for approximately 30 days, the pump which drew the household water supply from a drilled well, ceased to function. It was then discovered that the well was not of sufficient capacity to supply the home, and it became necessary to drill another well.

At the time Waters were examining the home with a view to purchase, they inquired of Novak concerning the quantity of water. Novak assured them that there was an abundant flow of water, sufficient in fact to supply two families, to operate a dishwasher, an automatic washing machine, and other household facilities.

When the failure of the water developed, the appellees, Waters, also le.arned that Novak had had trouble with the water supply, that the well did not have a good flow of water, and, as at least one witness indicated, Novak wished to sell the property because of the trouble he was having with the well.

Waters filed an action for both compensatory and punitive damages against Novak, based on the fraud, malice and insult which they claimed was committed upon them in inducing the purchase of the Novak house and lot.

The issue of compensatory and punitive damages for the fraud was submitted to the jury by the trial court, and a general verdict in the sum of $3000 was returned in favor of Waters. From the judgment rendered on such verdict, Novak has appealed to this court — claiming, among other errors, that the verdict and judgment are not sustained by the evidence, and that the trial court should not have submitted the question of punitive damages to the jury.

There was a great conflict in the testimony, but after a careful reading of the bill of exceptions, this court cannot come to a unanimous conclusion that the verdict was against the manifest weight of the evidence submitted to the jury.

The principal problem in this appeal is: May punitive damages be allowed in this case of fraud in the sale of the real property in question?

The rule in Ohio, with respect to the liability of a vendor, who, by reason of false representations as to character, utility, value and quality of land, disposes of such land, is found in the case of Drew v. Christopher Construction Co., Inc., 140 Ohio St., 1, 41 N. E. (2d), 1018, wherein the first paragraph of the syllabus says:

“1. Where false representations of a vendor made as positive statements of facts clearly implying his knowledge of the truth thereof induced a purchaser to buy and pay for a residence property and such representations were material, being of such a nature as to affect the character, utility and value of the property, and were then known by the vendor to be untrue, but were relied upon by the purchaser as true, he may maintain an action to recover the damage sustained as a result thereof.”

An annotation and collation of cases on the subject of liability for fraud, predicated upon the vendor’s misrepresentation of the physical condition of real property, is found in 174 A. L. R., 1010. Ohio has consistently followed the general rule on this subject.

In the ease of Molnar v. Beriswell, 122 Ohio St., 348, 171 N. E., 593, the court said:

“1. The measure of damages resulting from a sale induced by a vendor’s fraudulent representation is the difference between the actual value of the property at the time of the purchase and its value had it been as represented. ’ ’

See also: Citizens Banking & Savings Co. v. Spitzer, Rorick & Co., 65 Ohio App., 309, at p. 333, 29 N. E. (2d), 892; Fiebig v. Brofford, 58 Ohio Law Abs., 494, 97 N. E. (2d), 52; Henschel v. Schreiber (Ohio App.), 72 N. E. (2d), 107.

In the case of Saberton v. Greenwald, 146 Ohio St., 414, 66 N. E. (2d), 224,165 A. L. R., 599, the court said:

“2. In an action to recover damages for a tort which involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages. ’ ’

The Supreme Court of Ohio again stated the rule with respect to punitive damages in tort cases in the case of Smithhisler v. Dutter, 157 Ohio St., 454, at p. 459, 105 N. E. (2d), 868; saying:

“The rule in Ohio seems to be that ordinarily, in tort actions, punitive damages are allowable in cases in which fraud, malice or insult appears, that such damages may be allowed even though the defendant may have been punished criminally for the same wrong, and that reasonable counsel fees for the prosecution of the action may be included therein. ’ ’

In the first paragraph of the syllabus of that case, the court said:

“1. In tort actions, the question of punitive damages may not ordinarily be submitted to a jury in the absence of actual malice. ’ ’

In the well-considered case of Greene v. Keithley, 86 F. (2d), 238, decided by the Federal Circuit Court of Appeals of the Eighth Circuit, the court said, at p. 242, after a review of the leading authorities:

“We conclude that exemplary damages may be recovered in tort actions on the case based on conspiracy or on deceit, provided, of course, a petition contains the necessary averments showing a right to recover such damages in addition to compensatory damages.”

The court in that case examined the case of Peckham Iron Co. v. Harper, 41 Ohio St., 100, wherein it was determined that:

“2. Exemplary damages may be allowed, where an agent by false and fraudulent representations to his principal, obtains possession of his principal’s goods and converts them to his own use. ’ ’

In the instant case the petition alleged that the fraudulent misrepresentations of Novak “were made maliciously and fraudulently by defendants (Novak), with insult and intent to deceive and defraud these plaintiffs (Waters).” The petition also alleged in other instances the fraud, malice and insult of Novak in mailing the sale of the property in question.

The trial court, after submitting the issue of compensatory damages according to the rule established in Ohio, said:

“If you find that compensatory damages are due the plaintiffs, then you will consider further as to the claim of the plaintiffs for exemplary or punitive damages. Bare fraud never entitles the parties injured to exemplary or punitive damages, but such damages may be recovered only where the preponderance of all the evidence shows a gross or malicious fraud, or something showing a very corrupt condition of affairs. Malice consists of bad motive, or such wanton and reckless disregard of the rights of others as to show evil intent. If you find by a preponderance of all the evidence these elements which are a basis for exemplary or punitive damages to be present in this case, then, if you think proper, you may go beyond mere compensation and award exemplary or punitive damages as a matter of right, even though you find fraud and misrepresentation on the part of the defendants. Punitive damages are entirely within your discretion, to allow or refuse, for the purpose of punishment to the defendants, and as a deterrent or preventative for committing like acts in the future, if you find that the evidence discloses such conduct on the part of the defendants to make it proper to punish the defendants therefor. In no event will the plaintiffs be entitled to recover more than the amount claimed in their petition.

“As previously stated, you will not consider or award any punitive damages unless you have first found damages otherwise due the plaintiffs.

“If you find that the plaintiffs are entitled to exemplary or punitive damages, you may include in the amount of your verdict a reasonable attorney’s fee for plaintiffs’ counsel, but sucb attorney’s fee, if any, is to be included as part of the compensatory damages, and not as part of the exemplary damages.”

Did the trial court, therefore, by this charge, define the malice that was necessary to submit the issue of punitive damages in the instant action? For we conclude that, upon proper allegations and proof, punitive damages may be awarded in a tort action based upon the sale of real property, where such sale wats procured as a result of the fraudulent representations of the vendor. We therefore return to the question as to whether implied malice or actual malice was the essential ingredient which would justify the submission of the issue of punitive damages in the instant case.

As was said in the case of Smithhisler v. Dutter, supra, at p. 459 — “There is a division in the authorities as to whether there must be actual malice upon the part of a defendant or merely legal malice in order to justify punitive damages.” And the court said further at p. 461:

“The rule as to malice is stated as follows by Judge Hart in his dissenting opinion in the Saberton case, supra, and there was no division upon this statement:

“ ‘This court has, over the years, recognized the propriety of submitting to a jury the question of the assessment of punitive damages in certain tort cases where the defendant’s wrongdoing has been intentional and deliberate, or has the character of outrage frequently associated with crime.

“ ‘Not all tort actions are of such a character as to warrant the assessment of punitive damages. G-enerally the application of the doctrine is confined to cases where there is involved actual malice, interference with marital relations, or wanton personal injury, such as in cases of seduction, assault and battery, false imprisonment, or wrongful expulsion from public passenger vehicles or places of public entertainment.’ ”

In the case of Cable v. Bowlus, 21 C. C., 53, 11 C. D., 526, affirmed without opinion in Bowlus v. Cable, 69 Ohio St., 563, 70 N. E., 1115, the court said:

“6. Punitive damages for fraud can only be recovered where there is a gross or malicious fraud, or something showing a very corrupt condition of affairs, but not for a bare case of fraud.”

The Supreme Court of the United States has recognized that “whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person.” Scott v. Donald, 165 U. S., 58, at p. 89, 41 L. Ed., 632, at p. 638, 17 S. Ct., 265, at p. 268.

Some states, such as Missouri, are committed to the proposition that in cases of fraud inducing the sale of real or personal property, the malice necessary to be shown to justify an award of punitive damages is legal malice and not actual malice (Finke v. Boyer, 331 Mo., 1242, 56 S. W. [2d], 372; Menke v. Rovin, 352 Mo., 826, 180 S. W. [2d], 24), while in others, such as New York, the rule as set out in Oehlhof v. Solomon, 73 App. Div., 329, at p. 333, 76 N. Y. Supp., 716, at p. 719, is that actual malice must be shown in cases similar to the instant action. In some states, such as California and Oklahoma, there are special statutes on this subject.

The textwriters on the subject also point out the wide variety of opinions on this subject of what the nature of the malice shall be which justifies the award of punitive damages for a fraudulent representation inducing the sale of real property.

2 Sutherland on Damages (Fourth Ed.), Section 393, says (at p. 1280):

“These damages [i. e., punitive damages] are allowable only when there is misconduct and malice, or what is equivalent thereto. A tort committed by mistake, in the assertion of a supposed right, or without any actual wrong intention, and without such recklessness or negligence as evinces malice or conscious disregard of the rights of others will not warrant the giving of damages for punishment where the doctrine of such damages prevails.”

In 1 Sedgwick on Damages (Ninth Ed.), Section 364, the author says:

“Actual malice in the commission of a wrongful act is a cause for exemplary damages. * * *

“The existence of such malice as will justify the infliction of exemplary damages is of course a question of fact; and the malice must be actual, not constructive or, as it is often called, implied.”

See also, 4 Restatement of the Law of Torts, Section 908, Comment “b.”

We conclude, therefore, on the question as to the nature of the malice in actions of the kind involved in the instant case, that the better rule is that such malice must be, as was determined in the case of Greene v. Keithley, supra, at p. 243, construed to be “not simply the ‘doing of an unlawful or injurious act,’ * * * but as going further and meaning ‘evil motive, actual malice’ * * * in the sense of ‘a spirit of mischief or criminal indifference to civil obligations’ * *

Did the trial court, in its charge on the subject of the nature of the malice necessary to be established in the instant case, correctly state the issue?

Malice, as we speak of it in the law of Ohio, is of two kinds — express, or, as it is also called, actual, and implied, or, as it also is called, legal, malice.

Legal malice has been stated to be “the intentional doing of a harmful act without legal justification or excuse or, in other words, the wilful violation of a known right.” Reichman v. Drake, 89 Ohio App., 222, 100 N. E. (2d), 533.

“3. Hatred, ill will or actual malice towards the injured party is not a necessary ingredient of legal malice as applied to torts, nor is it necessary that the act complained of proceed from a spiteful, malignant or revengeful disposition. If it be wrongful, unlawful and intentional and the natural and probable result of the act is to accomplish the injury complained of, malice is implied.” Flandermeyer v. Cooper, 85 Ohio St., 327, 98 N. E., 102, 40 L. R. A. (N. S.), 360, Ann. Cas. 1913A, 983.

An approved definition of express or actual malice is stated as “an actual feeling of ill-will, and a desire to injure another; an act done with a bad motive, or with a wicked intention. ” Alliance Review Publishing Co. v. Valentine, 9 C. C., 387, at p. 389, 6 O. D., 323, 2 O. D., 646, affirmed without opinion, Standard Review Publishing Co. v. Valentine, 56 Ohio St., 784, 49 N. E., 1117. See also, Simpson v. McCaffrey, 13 Ohio, 508, at p. 522.

In the case of Pfoh v. Whitney (Ohio App.), 62 N. E. (2d), 744, at p. 754, Judge Morgan of the Eighth Appellate District declared express malice to be spite, ill-will, malevolence or hatred. An examination of the authorities in this and other jurisdictions with respect to the definition of malice, express malice, actual malice, malice in law, implied malice, and constructive malice, all of which have at various times been defined, shows a great confusion of terms and a lack of the clarity which we desire herein.

In an article by Ernst Freund, of the University of Chicago, on ‘ ‘ Malice and Unlawful Interference, ” in 11 Harvard Law Review, 449, at p. 461, the author says:

‘ ‘ To say that malice is an unlawful purpose to cause damage and loss, without right or justifiable cause, is to tell us nothing that is specific of malice, for these elements belong to every intentional tort, and it is desirable to define malice as a tort sui generis. As such malice ought to mean in law what it means in fact, the intentional infliction of damage through personal ill-will or spite, for purposes of revenge, or for illegitimate and corrupt personal ends.”

The subject of express and implied malice is discussed in' 34 American Jurisprudence, Malice, Section 3, wherein the author says :

“The line of demarcation between express and implied malice is not always clearly defined, and in some instances the distinction lies only in the evidence by which the existence of malice is established.”

It might be well to point out. the definition of actual malice in two' prominent jurisdictions in this country. New York says in Hoeppner v. Dunkirk Printing Co., 254 N. Y., 95, at p. 106, 172 N. E., 139, at p. 142, 72 A. L. R., 913:

“By actual malice is meant ‘personal spite or ill will, or culpable recklessness or negligence.’ ”

And Massachusetts says in Gott v. Pulsifer, 122 Mass., 235, at p. 239, 23 Am. Rep., 322, at p. 325:

“Malice [active] in uttering false statements may consist either in a direct intention to injure another, or in a reckless disregard of his rights and of the consequences that may result to him. ’ ’

Viewed in the light of the recognized definitions of actual malice, the trial court, in the instant case, gave to' the jury a sufficiently accurate definition and required of the jury that they find such malice to exist before they could award punitive or exemplary damages. There was no request that the court elaborate on this definition or requirment, and no special requests before argument on this subject were submitted by either of the parties. Under the circumstances herein, we do not consider that the trial judge committed prejudicial error in charging the jury as he did on the subject of actual malice.

We therefore determine that, where a vendor of real property makes false and fraudulent representations concerning the available supply of water on the premises he is selling, which representations the vendor knows to be untrue and which representations the vendee relies upon, and by means of such false and fraudulent representations induces a vendee to buy and pay for the real property, an action in tort for damages may be maintained against the vendor; and that, where the vendor was motivated by actual malice, the jury may, if the allegations and proof establish such malice, properly consider the issue of exemplary damages and make an award therefor.

The judgment is affirmed.

Judgment affirmed.

Stevens, J., concurs.

Doyle, P. J.,

dissenting. I respectfully dissent from the conclusions of my associates.

While recognizing the authority of the Ohio cases cited, I find none of them authority for an allowance of punitive damages growing out of breach of contract in the sale of real property.

The petition of the plaintiff was apparently drawn to sound in tort; nevertheless, the operative facts sound in contract.

I do not favor the extension of the rule of punitive damages to cases falling within this pattern. No Ohio precedent compels it.

See: Ketcham v. Miller, 104 Ohio St., 372, 136 N. E., 145; and 84 A. L. R., 1345, annotation.

       Since the announcement of this decision, we have been informed by the trial judge that the bill of exceptions does not accurately set forth the middle sentence of the first paragraph of the charge above quoted. The trial judge states that that part of the charge, as given by him, was as follows:
      “If you find by a preponderance of all the evidence these elements which are a basis for exemplary or punitive damages to be present in this case, then, if you think proper, you may go beyond mere compensation and award exemplary or punitive damages. The plaintiffs are not entitled to exemplary or punitive damages as a matter of right, even though you find fraud and misrepresentation on the part of the defendants.”
      The charge as actually given was, of course, a more complete and more accurate way of stating the proposition involved.


author: Per Curiam.

text:
    The Elder & Johnston Co., Appellant, v. Commercial Motor Freight, Inc., of Indiana, Appellee.
    (No. 2230
    Decided April 2, 1953.)

      Messrs. Marshall & Smith, for appellant.

      Messrs. Pickrel, Schaeffer & Ebeling and Mr. H. Thomas Haacke, Jr., for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Municipal Court of Dayton for defendant in an action for damages growing out of a shipment of mirrors which were found to be broken when the crates were opened in plaintiff’s place of business. !

The trial court found that negligence of the defendant had not been proven. We give due recognition to the well established rule that where a shipper offers proof that the goods were delivered to the carrier in good condition, and that the carrier delivered the goods to the consignee in a damaged condition, a prima facie case of negligence is raised against the carrier and the burden is upon the carrier to rebut the prima facie case by producing evidence that such damage was not due to its negligence. Grosjean v. Pennsylvania Rd. Co., 146 Ohio St, 643, 67 N. E. (2d), 623; Sugar v. National Transit Corp., 82 Ohio App., 439, 81 N. E. (2d), 609; 6 Ohio Jurisprudence, 868, Section 231. The plaintiff rested its right to recover on the pleadings and the evidence on the principle of law just stated.

In the case at bar three questions of fact are presented :

Were the mirrors in good condition and propeifiy packed when delivered to the carrier at the place of shipment? Were the mirrors damaged when delivered to consignee?

The trial court found generally against the plaintiff. The evidence would warrant a finding that the shipper delivered the mirrors to the carrier in good condition, although by the evidence produced a question was raised as to improper packing by the shipper. The defendant would not be liable for any fault of the shipper in improper packing. However, we are reluctant to rest the case on this issue, because of the unsatisfactory state of the record.

Were the mirrors damaged when delivered to the consignee 1

The defendant, a tracking company, transported the mirrors from Louisville, Kentucky, to plaintiff’s store in Dayton, Ohio, where the crates containing the mirrors were unloaded from the truck onto a loading platform on the first floor of plaintiff’s store. The three crates, which in the aggregate weighed 1,215 pounds, were then put on skids, placed on the elevator and taken to the third floor of the store, where the crates were removed from the elevator and placed on the floor to be opened. A hammer wras used to pry open the crates, which had been nailed. There were no marks on the outside of the crates showing damage or indicating mishandling. There is not a scintilla of evidence showing the care exercised by the plaintiff’s employees in handling the crates from the time they were taken from the truck until they were opened on the third floor. Before the presumption of negligence rule could have application it would have been necessary to rule out the possibility of damage to the crates after they were removed from the truck. This was not done. Under the facts in this case a presumption of negligence on the part of the carrier did not arise, and, therefore, the plaintiff was unable to fix liability on the carrier in the absence of facts showing its negligence.

As we find no error in the record prejudicial to the rights of the plaintiff, the judgment is affirmed.

Judgment affirmed.

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


author: Stevens, J.

text:
    Bean, Appellant, v. Local Union No. 698 et al., Appellees.
    (No. 4368
    Decided July 1, 1953.)

      Mr. Stanley Denlinger, for appellant.

      Mr. Robert E. Shuff, for appellees.
   Stevens, J.

Plaintiff brought an action in the Court of Common Pleas as an individual and on behalf of all other employees of Bill and Prank’s Pood Market in Barberton, Ohio, wherein was sought an injunction against defendants from picketing plaintiff’s employer ’s place of business.

The answer of defendants was in effect a general denial.

Trial to the court resulted in a judgment for defendants, from which judgment this appeal on questions of law has been perfected.

There are presented two assignments of error:

“1. The finding, judgment and order of the court are against the weight of the evidence and contrary thereto.

“2. The finding, judgment and order of the court are contrary to law.”

This court heretofore, in the cases of Smith and Gerhart, Inc., v. Retail Clerks’ Int. Protective Assn. (unreported), No. 1034, Lorain county, and Iacomini’s Restaurant, Inc., v. Hotel & Restaurant Employees & Bartenders Local No. 118, et al., 63 Ohio Law Abs., 258, has taken the position that, because of the decisions of the Supreme Court of the United States in Milk Wagon Drivers Union of Chicago, Local No. 753, v. Meadowmoor Dairies, Inc., 312 U. S., 287, 85 L. Ed., 836, 61 S. Ct., 552, 132 A. L. R., 1200, and American Federation of Labor v. Swing, 312 U. S., 321, 85 L. Ed., 855, 61 S. Ct., 568, where there was no dispute between the employer and his employees, nor between employer, or employees, and the union, still a labor dispute could be created between the employer and the union, under the claim of protection of the right of free speech, which gave the union the right to peacefully picket the employer’s place of business.

It undoubtedly was under these decisions that the trial court reached the conclusion from which this appeal has been taken.

More recently, however, the Supreme Court of the United States appears to have experienced a change of mind on the question of the paramount sanctity of the constitutional guaranty of the right of free speech, so far as unions are concerned.

As expressed by the Supreme Court of Ohio in W. E. Anderson Sons Co. v. Local Union No. 311, 156 Ohio St., 541 (at p. 556), 104 N. E. (2d), 22:

“Suddenly, the view of the federal Supreme Court seemed to change to a recognition of rights in certain instances which would warrant an injunction against picketing or bannering notwithstanding the constitutional protection of free speech. On May 8, 1950, the Supreme Court decided three cases, Building Service Employees Intl. Union, Local 262, v. Cassam, 339 U. S., 532, 94 L. Ed., 1045, 70 S. Ct., 784; Hughes v. Superior Court, 339 U. S., 460, 94 L. Ed., 985, 70 S. Ct., 718; International Brotherhood of Teamsters Union, Local 309, v. Hanke, 339 U. S.,*470, 94 L. Ed., 995, 70 S. Ct., 773, which dealt with vital phases of this question and which indicated a distinct departure from the view taken in the Senn, Thornhill and Carlson cases.”

The court then announced the following conclusion (at p. 561):

“Court decisions now seem to firmly establish the rule that picketing or bannering as a means of the exercise of the right of free speech will be afforded constitutional protection so long as it is lawfully conducted, but if it becomes unlawful then it falls within the category of a civil wrong and must be governed by the law of torts. In other words, the constitutional guaranty of the right of free speech is predicated upon the lawful exercise of such right and if, through conspiracy or unlawful conduct, the result of its exercise unlawfully injures another in his property rights, the guaranty ceases and the exercise of the claimed right by such means may be enjoined or prohibited.”

In Crosby v. Rath, 136 Ohio St., 352, 25 N. E. (2d), 934, the court held that peaceful picketing or bannering for the purpose of bringing pressure upon an employer to compel his employees to join a union, is for an illegal purpose and will be enjoined.

The public policy of Ohio has been determined by the above pronouncements of the Supreme Court of Ohio, and such determination accords with the rule announced by the Supreme Court of the United States in Hughes v. Superior Court, 339 U. S., 460, 94 L. Ed., 985, headnote 10, 70 S. Ct., 718, and International Brotherhood, etc., v. Hanke, 339 U. S., 470, 94 L. Ed., 995, headnote 5, 70 S. Ct., 773, 13 A. L. R. (2d), 631.

The above decisions make it necessary to overrule and abandon the position previously taken by this court in the Smith and Gerhart and Iacomini cases, supra.

The sole question for determination here is' this: May a union, in the absence of a dispute between employer and employees, or between the union and the employer or employees, engage in peaceful picketing for the purpose of bringing pressure to bear upon the employer to require his employees to join the union? In other words, may peaceful picketing for organizational purposes of the union be lawfully conducted?

We think the question stated has been completely answered in the negative by the decision in Crosby v. Rath, supra.

It is therefore the conclusion of this court that the trial court prejudicially erred when it dismissed plaintiff’s petition, and denied the relief sought therein.

The judgment is reversed as contrary to law, and, there being no dispute in the evidence, this court will enter the judgment which the trial court should have entered.

An injunction as prayed for in the petition may issue.

Judgment for appellant.

Doyle, P. J., and Hunsicker, J., concur.


author: Hornbeck, P. J.

text:
    In re Pullins.
    (No. 4786
    Decided November 3, 1952.)

      Miss Mildred 1. Givets, for petitioner.

      Mr. C. William O’Neill, attorney general, and Mr. Larry H. Snyder, for respondents.
   Hornbeck, P. J.

Petitioner seeks by writ of habeas corpus his release from the Ohio Penitentiary upon the claim that his sentence of five to thirty years upon conviction of burglary and larceny has expired. Petitioner was received at the penitentiary on July 2, 1915.

The facts developed are that petitioner was sentenced on July 1,1915, was received at the penitentiary on July 2, 1915, escaped from the penitentiary on September 16,1917, was committed to the penitentiary of the state of South Dakota on March 16, 1921, was released by writ of habeas corpus on February 2, 1944, and was immediately returned to the Ohio Penitentiary, where he has been continuously incarcerated since his return.

Manifestly, the petitioner has been imprisoned for more than 30 years, the maximum duration of the original sentence. However, of the total period served in prison, 23 years, 10 months and 16 days were served in South Dakota. The total period served in the Ohio Penitentiary is something over ten years.

It is the contention of counsel for the petitioner that the sentence served in the South Dakota Penitentiary should be considered as having run concurrently with the sentence served in the Ohio Penitentiary, and that Section 13453-6, G-eneral Code, does not have application to require the further retention of petitioner in the Ohio Penitentiary.

Counsel for respondents cite cases from several states, tending to support the contention that the petitioner is not entitled to release independently of statutory provision. Counsel for petitioner attempts to distinguish the facts in this case from those found in Henderson v. James, Warden, 52 Ohio St., 242, 39 N. E., 805, 27 L. R. A., 290, in which it was held:

“An escaped convict who is convicted and sentenced to the penitentiary for another crime, may, at the expiration of the latter sentence, be held to serve out the remainder of his first sentence. ’ ’

In that case, Henderson had been received at the Ohio Penitentiary on September 18, 1879, to serve a five-year sentence from Warren county. In about two years he escaped from the penitentiary and was at large until March 16, 1891, when he was again received at the penitentiary, under the name of Carrol Scott, on a five-year sentence from Cuyahoga county. The court which sentenced Henderson did not know that Scott was one and the same person as Henderson, and it was claimed, although not proved, that the warden at the penitentiary knew of the real identity of Scott. At the termination of the sentence from Cuyahoga county, the warden held Henderson for further imprisonment under his first sentence. Thereupon, Henderson instituted his action in habeas corpus with the result as hereinbefore quoted. It is obvious that Henderson had a more plausible reason to urge that his sentences were concurrent than does the petitioner here. Both sentences had been imposed in Ohio and both sentences were being served in the same institution. Had the court in Cuyahoga county known that Scott and Henderson were the same person and had it not fixed any period of time of the sentence imposed, the presumption would have been under the common law that the terms were to run concurrently. In the instant case the judge who sentenced the petitioner in South Dakota would have had no power to make any order affecting the duration of the sentence imposed in the Ohio court.

Independently of any adjudication, we are satisfied that the express terras of Section 13453-6, General Code, control and determine this action. That section reads:

“If a convict escape from the penitentiary or reformatory, the time such convict is so absent shall not be credited as a part of the time for which he was sentenced. ’ ’

The language, “is so absent,”'is referable to “escape from the penitentiary. ’ ’ That is to say, if a convict is absent by reason of escape from the penitentiary, the time of such absence shall not be credited as a part of the time for which he was sentenced. There cannot be the slightest doubt that the period during which petitioner was away from the penitentiary, either at large or in the South Dakota Penitentiary, was an absence from the Ohio Penitentiary because of his escape therefrom.

The petitioner is properly held by the respondent warden under the mittimus from Clark county.

Petitioner remanded to custody.

Wiseman and Miller, JJ., concur.


author: Younger, J.

text:
    DeCamp, Appellant, v. Beard, Exr., Appellee.

      (No. 535
    Decided January 8, 1953.)

      Mr. John A. Robenalt, for appellant.

      Mr. Richard J. Rinebolt and Mr. Garver Oxley, for appellee.
   Younger, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hancock County in an action wherein the appellant, Clara DeCamp, was plaintiff and the appellee, Thomas L. Beard, executor of the estate of John O. Armbruster, deceased, was defendant.

The plaintiff, on J anuary 21, 1952, filed her petition which, omitting caption, signature of attorney, exhibits thereto attached, and verification, is in the following words and figures:

“Now comes the plaintiff, Clara DeCamp, and for her cause of action says that she was formerly Clara Armbruster having been married to the now deceased John 0.. Armbruster on the 9th day of November, 1913, in Auglaize county, Ohio. The plaintiff says that she and the said John O. Armbruster during his lifetime were divorced in the Common Pleas Court of Allen County, Ohio, by decree of that court in case number 18550 on the 31st day of May, 1919.

‘ ‘ The plaintiff further says that the above mentioned divorce decree provided for the payment of the sum of twenty-five dollars ($25) per month for the support of Vaila Armbruster, the minor child of the marriage of the plaintiff and the said John O. Armbruster, such payments to begin on June 15, 1919, and to contiliue until the said minor child reached the age of 16 years.

“The plaintiff alleges that no part of the support ordered by the Common Pleas Court of Allen County, Ohio, in the above mentioned divorce action has ever been paid and that as a result the amount of three thousand and twenty-five dollars ($3,025) with interest thereon is due and owing the plaintiff.

“This plaintiff has caused her sworn statment of the amount due her to be presented to the defendant, the duly appointed and qualified executor of the estate of the said John O. Armbruster within four (4) months from the time of his appointment and qualification as the executor of the estate of John O. Armbruster, deceased, and upon such presentment the defendant has rejected the claim of the plaintiff under date of November 28, 1951. This action is filed within two months of the date of such rejection. A copy of the claim of the plaintiff and the rejection of said claim by the defendant is attached hereto and marked ‘exhibit A.’

“Wherefore, the plaintiff prays judgment against the defendant in the amount of three thousand and twenty-five dollars ($3,025), plus interest and the costs of this action.”

The defendant filed a demurrer to the petition upon the ground “that it appears upon the face of the petition that the cause of action therein set forth, did not accrue within fifteen years next prior to the commencement of this action. ’ ’

Upon hearing thereafter had, the court found the demurrer well taken and sustained the same and, the plaintiff not desiring to plead further, rendered judgment dismissing plaintiff’s petition. That is the judgment from which this appeal is taken.

The plaintiff assigns error in a number of particulars which may be summarized as an assignment that the judgment of the Common Pleas Court is contrary to law.

There is no statute prescribing that judgments or actions on judgments are subject to any limitation. However, there is a statute of limitations as to actions upon specialties. This statute is Section 11221, General Code, which reads as follows:

“An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued.”

The Common Pleas Court apparently considered that this statute applied to judgments of the character upon which this action is based and rendered its judgment accordingly.

In an early Supreme Court case, Stockwell v. Coleman, 10 Ohio St., 33, it was held that a judgment of a justice of the peace in Indiana was a specialty within the purview of the statute of limitations above set forth, but in a later case, Tyler’s Exrs. v. Winslow, 15 Ohio St., 364, it was held by the Supreme Court that a domestic judgment (which is a judgment of the character involved in this action) is not a specialty and does not come within the purview of the statute of limitations above mentioned. This latter holding is the settled law of Ohio upon the question. 23 Ohio Jurisprudence, 805, 1344, 1345, Sections 492, 1347, 1348.

As the judgment upon which this suit was predicated is not a specialty, action on it was not barred by the provisions of Section 11221, General Code, relating to specialties.

While the judgment upon which the instant case is predicated is not a “judgment for the recovery of money” in the sense in which that phrase is used as applying to an ordinary judgment, and while it differs from an ordinary judgment in that it is payable in installments, is subject to modification as to unaccrued installments, and is essentially a judgment for the enforcement of a duty, it still constitutes a judgment within the meaning of the Constitution of the United States and the laws of this state so far as the collection of accrued installments thereof is concerned.

In the case of Armstrong v. Armstrong, 117 Ohio St., 558,160 N. E., 34, it was held:

“1. A judgment for alimony payable in installments rendered upon entering a decree for divorce constitutes a final judgment within the full faith and credit clause of the federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction wherein the decree was granted that the power of modification expressly retained extends to accrued as well as to future installments of alimony.

“2. Where a divorce was regularly decreed by a Kentucky court and a sum payable in installments was awarded as alimony and for the support and mainte.nance of children of the parties and there has been no modification of such judgment it will be enforced by the courts of Ohio under the full faith and credit clause of the federal Constitution.”

In the case of McPherson v. McPherson, 153 Ohio St., 82, 90 N. E. (2d), 675, involving a judgment for the support of a minor child, payable in installments, it was held that the unpaid installments were not subject to modification, and that the doctrine enunciated in the last above-cited case is applicable to such a judgment.

While, as above stated, there are no statutes prescribing limitations on the enforcement of judgments or actions thereon, there are statutes prescribing when judgments of courts of record become dormant and how and within what period of time such judgments may be revived. These are in the nature of statutes of limitation on the judgments to which such statutory provisions apply.

The question then arises whether the judgment upon which this cause is based is of such a character that it became dormant after the period prescribed by said statutes and is subject to revivor as provided in said statutes.

In considering this question we must keep in mind the fact that judgments for support payable in installments have the same legal standing and effect as judgments for alimony payable in installments.

Such judgments for support, therefore, come within the purview of the decision of the Supreme Court in the ease of Lemert v. Lemert, 72 Ohio St., 364, 74 N. E., 194, 106 Am. St. Rep., 621, wherein it was held that a judgment of this character is not one subject to becoming dormant or subject to revivor under the sections of the General Code relating to dormant judgments and the revivor thereof.

In its decision the Supreme Court affirmed and approved the holding of the Circuit Court in said cause, appearing in 2 C. C. (N. S.), 233, 236, 15 C. D., 253, which holding is as follows:

“An adjudication of alimony by a Court of Common Pleas is, in a sense, a judgment, to the enforcement of which the parties are entitled to execution and proceedings in aid thereof. A claim for alimony, while it is a judgment, the fixed amount of which is to be paid by the husband out of his property for the support of the wife, rests not only upon the adjudication of the court fixing that amount, but upon the higher obligation of the common-law liability of a husband to support his wife, and the authorities go so far as to say that it is a continuing obligation which exists not only at the time of the judgment, but continues after-wards. ’ ’

The judgment upon which the action in the instant case is based is not a specialty within the meaning of the statute of limitations relating to specialties and is not such a judgment as comes within the statutes relating to dormant judgments and the revivor thereof. There are ño statutory or common-law rules limiting the enforcement of a judgment of this character or actions thereon. It is, however, a judgment within the meaning of the federal Constitution and the laws of this state, all installments being past due.

Consequently, the Common Pleas Court erred in sustaining the demurrer of the defendant and dismissing the petition, its action being contrary to law. For this error the judgment of the Common Pleas Court is reversed at the costs of the defendant, and the cause is remanded to the Common Pleas Court with instructions to overrule the demurrer and for further proceedings according to law.

Judgment reversed.

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


author: Collier, J.

text:
    In re Estate of McKitterick.
    (No. 168
    Decided June 11, 1953.)

      Mr. Frank DeLay, for exceptor-appellant.

      Messrs. Eubanks <3 Slovens, for appellees.
   Collier, J.

This is an appeal from a judgment of the Probate Court of Jackson County overruling certain exceptions to the inventory and appraisement of the estate of Samuel G. McKitterick, deceased.

The first question which requires our attention is a matter of procedure. The administratrix, appellee herein, claims that the notice of appeal was not filed within the time limited by Section 12223-7, General Code. The judgment of the Probate Court overruling said exceptions was entered on April 17, 1952, and on the same day a motion for a new trial was filed, which motion was overruled on April 28, 1952. The notice of appeal was filed by the exceptor on May 9, 1952. The appellee contends that, since a motion for a new trial is not now necessary to perfect an appeal, the notice of appeal should have been filed within 20 days after the judgment entry of April 17, which time would have expired on May 7; and that the only question presented by the appeal, notice of which was filed May 9, is whether the trial court committed error in overruling the motion for a new trial.

This identical question was decided and the statutes involved were construed in the case of Duemer v. Duemer, 86 Ohio App., 192, 88 N. E. (2d), 603, 55 Ohio Law Abs., 33. On page 199, Ross, J., said:

“The motion [for new trial] was, therefore, properly and duly filed, and the motion to dismiss the appeal, because the notice of appeal, although filed within 20 days from the overruling of the motion for a new trial, was not filed within 20 days from the judgment of the court, is overruled.”

Section 11575, General Code, as amended effective October 11, 1945, provides for a new trial not only on issues of fact, but also on issues of law. Section 12223-7, General Code, amended at the same time, in express terms provides that the time for filing a notice of appeal does not commence to run until the motion for a new trial, if one is filed, is overruled. There is no merit in appellee’s claim of irregularity in procedure. The notice of appeal in the present case was duly filed, and the appeal to this court was properly perfected under the present statutes.

Counsel agree that in disposing of this case it is necessary that we consider only one question, which is presented by the overruling of exception No. 2 to the inventory and appraisement. That question is whether Samuel G. McKitterick, the decedent, at the time of his death was the owner of the lands described in schedule E of the inventory and appraisement. The answer to this question depends upon whether there was a valid delivery of the deed of June 29, 1934, conveying the land, which is the subject matter of this action, from the decedent to his son, the exceptor. The proper execution of the deed by the decedent and his wife, Margaret McKitterick, parents of the exceptor, is admitted. If the deed was delivered from the father to the son, the land belongs to the exceptor in fee simple and is not an asset of the father’s estate. On the other hand, if there was no valid delivery of the deed, as required by the formalities of the law in such a transaction, the mere execution of the deed by the parents would be ineffective to convey title to the son. Both proper execution and delivery of the deed are necessary to transfer title to real estate by deed. 13 Ohio Jurisprudence, 873, Section 58, reads:

“In a legal sense, the word ‘execution’ implies signing, sealing, and delivering. ’ ’

The controlling factor in this case is whether there was a delivery of said deed, and the test of that question is whether the decedent, the grantor, by his acts, words and conduct in his lifetime, as shown by the record, signified an intention to vest title to the lands in the grantee, the exceptor. It is said in 13 Ohio Jurisprudence, 876, Section 63:

“No particular form or ceremony is essential; delivery may now be made by words and acts, or either, if accompanied with the intention that they shall have that effect.” See, also, 16 American Jurisprudence, 501, Deeds, Section 115 et seq.

Thus, it becomes necessary that we examine the facts and circumstances as disclosed by the record to determine whether such intention was manifested by the decedent. The facts are substantially as follows:

Samuel Gr. McKitteriek, the decedent, on June 29, 1934, and for many years prior thereto was the owner of about 76 acres of farm land in the township of Lick, Jackson county, Ohio, where he and his family had long resided. The father and son, decedent and ex-ceptor, cultivated the farm on equal shares and there was a close relationship between them which continued until the death of the father. On that date the decedent and his wife executed a deed, exceptor’s exhibit A, conveying the farm to their only son, John McKitteriek, the exceptor, but reserving a life estate to both the father and the mother. The deed was prepared and acknowledged in a lawyer’s office and was taken by the decedent to his home and placed in a strong box with his other private papers, where it remained until after his death. A short time after the deed was executed, the decedent handed the deed to the son who examined it and handed it back to the father who then said: “I will take it back for safe keeping, ’’ and “this will make you a present one day. ’ ’ From that time until the date of his death, June 27, 1948, the decedent often referred to the deed in conversations with his son and other members of his family and made such statements as, “this is yonr dad’s when I am gone.” Margaret McKitterick, wife of the decedent and mother of the exceptor, who was 95 years of age when she gave her testimony in this case and is now deceased, said, “the land belongs to Johnny when I am done with it.” There was no testimony in the record of a contradictory nature, but it is contended that a different intention is shown by the further facts that the decedent continued in possession of both the land and the deed until the time of his death in 1948, that in 1941 the decedent conveyed an easement for highway purposes through the land, that in 1946 he executed two deeds for fractional acre tracts to his two granddaughters, daughters of the exceptor, and that in 1947 decedent executed a deed for a small tract to one Buel Harris; it being claimed that these acts indicated an intention by the decedent not to deliver the deed to the son but to retain title and revoke the deed which he had executed.

It should be remembered that the decedent retained a life estate in the deed for himself and his wife and both occupied the farm as a home as long as they lived. Is the retention of the deed and possession of the land by the decedent under these circumstances inconsistent with intention to make delivery, and are such acts strong enough to overcome the declarations of decedent as above quoted, the last of which statements were made about two weeks before his death?

It is stated in 26 Corpus Juris Secundum, 238:

“Grantor’s retention of manual custody of the deed does not necessarily indicate nondelivery, if a contrary intent on his part is established. ’ ’

In McDevitt v. Morrow, 57 Ohio Law Abs., 281, it was held:

“A deed is not rendered inoperative because the grantor retains possession of the property during his life, or because grantor had access to that deed.”

And in the case of Payne v. Henderson, 340 Ill., 160, 172 N. E., 173, it is held that a grantor’s retention of a deed reserving a life estate in and possession and control of property is not inconsistent with an intent to make delivery, and that such reservation raises a presumption that the deed is intended to operate immediately as a conveyance of a future estate vesting in possession at the termination of the life estate.

The Payne case is very similar in all respects to the present case, both in legal and factual questions. However, from a factual viewpoint on the question of delivery of the instrument by the grantor, the present case is much stronger. In the present case, there is evidence of actual delivery of the deed. When it was handed by the grantor to the grantee and when it was returned to him, he said, “I will take it back for safe keeping.” No such evidence appears in the Payne case. The grantor, having reserved a life estate, had the right of dominion and control of the land and possession of the deed. The decedent lived 14 years after the execution of the deed, during which time he was in daily contact and working with the grantee, but there is no evidence in the record that decedent ever intended any other disposition of his property. Under these circumstances, our conclusion is that retention of the deed and control of the land by the father are not sufficient to show an intent different from that expressed by him.

We place little importance upon the subsequent conveyances which were made mostly with the knowledge, consent and approval of the grantee and without objection by him. Two of these conveyances by the grantor were made to the daughters of the exceptor and the tracts conveyed were very small in proportion to the entire acreage, a farm of 76 acres. In the Payne case, a similar situation was considered and it was held that a conveyance of land, including an eleven-foot strip of a five-acre tract previously conveyed to another, did not show an intent to revoke a previous deed or negative an intent to make it effective when executed.

After a consideration of all the evidence, we are convinced that the decedent intended the deed of June 29, 1934, to his son to become effective at that time to convey a future estate after the termination of the life estates reserved in said deed, and intended the son to have the farm after the death of the parents.

The land described in schedule E of the inventory and appraisement is the property of the exceptor and no part of the assets of the estate, and should not have been included in the inventory and appraisement.

The judgment of the Probate Court, therefore, must be reversed. Since the other questions presented are determined by the decision on exception No. 2 to the inventory and appraisement, no further comment is necessary.

Judgment reversed.

Gillen, P. J., and McCurdy, J., concur.


author: Wiseman, P. J.

text:
    Dennison, Appellant, v. Buckeye Parking Corp., Appellee.
    (No. 4777
    Decided February 19, 1953.)

      Mr. Wilmore Brown and Mr. Russ Bothwell, for appellant.

      Messrs. Wiles & Doucher, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from the judgment of the Common Pleas Court striking certain allegations from the petition and, upon an election of the plaintiff not to amend, dismissing the action.

Plaintiff alleged that she was injured while walking on a defective sidewalk abutting defendant’s automobile parking lot. The plaintiff pleaded the ordinance of the city of Columbus which makes it the duty of the abutting property owner “to keep the paved sidewalk in front of and abutting upon such lot or parcel of land constantly in good order and repair.” A motion to strike that portion of the petition referring to the ordinance was sustained. The trial court cites the text in 28 Ohio Jurisprudence, 632 et seg., and the case of McCarthy, Admr., v. Adams, 42 Ohio App., 455, 182 N. E., 324, as supporting authority.

In the instant case it is not alleged that the defendant constructed an obstruction, or that the defect was created by the affirmative negligence of the defendant, such as constructing a manhole in the sidewalk and leaving it uncovered. This case does not fall in that category. In the instant case the wear and tear of ordinary vehicular traffic across the sidewalk caused the sidewalk to become in need of repair.

We are in accord with the opinion of Judge Randali and the application by the trial court of the well-established principle of law that the failure of the abutting owner to maintain a sidewalk in good repair in compliance with an ordinance, without more, does not give rise to a right of action on the part of a pedestrian who is injured by reason of such defect.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    The State, ex rel. Meyers, v. Baldwin.
    (No. 852
    Decided April 15, 1953.)

      Mr. Elliott E. Meyers, in propria persona, for relator.

      Mr. A. J. Layne and Mr. J. Earl Pratt, for respondent.
   Collier, J.

The relator, an attorney, by this action seeks to invoke the jurisdiction of this court in quo warranto to determine the validity of the appointment of respondent as a member of tbe Board of Education of Lawrence County. Tbe question of relator’s right to maintain this action has been waived by the respondent, and the cause has been submitted upon an agreed statement of facts which, briefly stated, are that on September 29,1952, there was a vacancy on the board; that at a regular meeting of the board on that date the remaining four members were present; that after ordering the payment of certain bills, one member, George G. Hunter, left the meeting in answer to a professional call from the hospital; that thereupon, Robinson, another member of the board, moved to increase the salary of two clerks in the county superintendent’s office, whereupon a second member, De Priest, left the meeting, leaving only two members present, Robinson and Baker; that no action was taken by the board excusing Hunter and De Priest from the meeting; that Robinson, one of the two members then present, moved to appoint the respondent, Dewey Baldwin, as a member of the board to fill the vacancy in its membership; that Baker, the other member present, seconded the motion and both Baker and Robinson voted “yes”; and that at the meeting of the board on October 7,1952, the respondent, Baldwin, was present and participated as a member thereof and voted with Baker and Robinson on several matters of business, the other two members, Hunter and De Priest, not voting.

These facts present only the one question whether the two members who remained in the meeting after the other two had left had the power to make the appointment to fill the vacancy.

The manner of filling a vacancy on a board of education is controlled by Section 4832-10, General Code, which provides as follows:

“Any such vacancy shall be filled by the board at its next regular or special meeting. A majority vote of all the remaining members of the board may fill any such vacancy * #

As a matter of simple arithmetic, a vote of two members of a board of four members is not a majority. However, the respondent contends that all four members were present when the meeting opened, and that when two members left without being properly excused, they acquiesced in the action taken by the two members who remained.

Respondent relies on the case of State, ex rel. Shinnich, v. Green, 37 Ohio St., 227, decided in 1881, in which common-law principles were applied to determine the election of a clerk of the city of Zanesville. In that case it was held that, a quorum being present, a majority of those members who vote is all that is necessary to elect the clerk. That case is easily distinguished from the present one, both on law and facts. In the Shinnich case all eighteen members were present when the voting took place, and nine members refused to vote because of the method followed in electing a clerk. In the instant case only two members of the board were present when the motion was made and the vote on the appointment was taken. In the case cited the action of the board was not controlled by statute and common-law rules were applied, but in the instant case the situation is controlled by Section 4832-10, G-eneral Code, above quoted, which provides that “a majority vote of all the remaining members of the board may fill any such vacancy, ” and not ‘ ‘ a majority of those voting” which was held in the Shinnich case to be the common-law rule.

A statute enacted in derogation of the common law displaces or supersedes common-law principles. See 37 Ohio Jurisprudence, 344, 588, Sections 51, 328, and 8 Ohio Jurisprudence, 242, Section 138; Leis v. Cleveland Ry. Co., 101 Ohio St., 162, 128 N. E., 73; Drake v. Rogers, 13 Ohio St., 21; Knapp v. Thomas, 39 Ohio St., 377, 48 Am. Rep., 462; Miller v. Fairley, 141 Ohio St., 327, 48 N. E. (2d), 217. Referring to a former comm on-law rule, Okey, J., in the opinion in the Knapp case said:

“Possibly it was in force here during our territorial existence (1 Chase, 190, 512, 528), but if so, clearly since the state was formed, it has been as completely obsolete as the rule which formerly existed (2 Strange, 1203; 1 Chitty’s Cr. L 469), requiring a man charged with felony to plead his pardon kneeling, and pay four guineas to each of the judges.”

The plain, unambiguous provisions of Section 4832-10, General Code, may not be avoided except by repeal or by enactment of another statute by the Legislature, and may not be extended by implication. The respondent, having received only the votes of two members of a four-member board, is short of a majority of the remaining members of the board as required by statute, and therefore his appointment is illegal. It follows that all actions of the board at the meeting of October 7, 1952, under the conditions stated in the agreed statement of facts, are invalid and a nullity, and must be set aside and held for naught.

Judgment accordingly.

Gillen, P. J., and McCurdy, J., concur.


author: Matthews, P. J.

text:
    Conner, Appellee, v. Republic Light & Furniture Co., Appellant, et al.
    (No. 7711
    Decided April 13, 1953.)

      Messrs. Bradley, Foiles £ Baeman, for appellee.

      Messrs. Paxton £ Seasongood, for appellant.
   Matthews, P. J.

This is an appeal from a judgment of the Municipal Court of Cincinnati. The appeal is by The Republic Light & Furniture Company. Its codefendant did not appeal from the judgment against it.

The appeal was, in form, on questions of law and fact and an appeal bond was given. On motion, the appeal was reduced to one on questions of law.

The plaintiff alleged in his bill of particulars or petition that he had purchased a Norge electric refrigerator from the defendant The Republic Light & Furniture Company and had given his note for $282.25 therefor, secured by á chattel mortgage thereon; that as an inducement to said purchase The Republic Light & Furniture Company represented that the refrigerator had a freezing compartment capable of holding and freezing 35 to 40 pounds of foodstuff; that when he commenced to use it, he discovered that it would not freeze any food in the compartment; and that upon making such discovery, he elected to rescind the contract and demanded that the seller accept return of the refrigerator and restore the status quo.

The plaintiff alleged also that the note and mortgage were in the possession of Welfare Finance Company, upon whom he had made demand that the note and mortgage be cancelled, to which demand it had refused to accede.

The plaintiff prayed that “his rescission of the sale be absolute; that the said note and mortgage * * * be cancelled.” No other relief was sought.

The Republic Light & Furniture Company answered, admitting the sale and denying all other allegations.

Welfare Finance Company, by answer, admitted it was the holder of the note and chattel mortgage and denied all other allegations. By cross-petition, it alleged its ownership of the note and that it had acquired it before maturity in the regular course of business for a valuable consideration without notice of any defect, and that the note was due and unpaid. It prayed for judgment for $282.25, the amount of the note. There was no prayer for a foreclosure of the mortgage.

■ The plaintiff’s reply placed the affirmative allegations of the answer and cross-petition in issue.

The case went to trial on these pleadings.

Upon conclusion of the trial, the court found on the issues raised by the plaintiff’s petition in favor of the plaintiff and declared the sale rescinded. On consideration of the cross-petition, the court found also for the plaintiff and granted “judgment for the plaintiff Nelson Conner on said cross-petition at the costs of the defendants.”

The Republic Light & Furniture Company filed a motion for a new trial, which was overruled. Thereupon, it filed its notice of appeal on questions of law and fact and gave its appeal bond.

At no time before, at, during, or after the trial did either defendant challenge the jurisdiction of the court to hear and determine this action. It was not until the first call of this appeal in this court that the question of the trial court’s jurisdiction was raised with the result that the appeal was reduced to one on questions of law only because of the conclusion of this court that the Municipal Court did not have jurisdiction under Section 1594, General Code, of an action in which the only relief sought was rescission and cancellation of a contract and that, therefore, the appeal could be on questions of law only.

(1) The defendant The Republic Light & Furniture Company now asserts on this appeal for the first time that the entire judgment is beyond the jurisdiction of the court, and, for that reason, void. That contention is based on subdivision (C) of Section 1594, General Code, which reads:

“(C) In any action at law based on contract, the court shall have jurisdiction to determine, preserve, and enforce all rights, legal and equitable, involved therein, and to decree an accounting, reformation, or cancellation of the contract, and to bear [hear] and determine all legal and equitable remedies necessary or proper for a complete determination of the rights of the parties thereto.”

It will be noted at once that the jurisdiction conferred is limited to actions at law, based on contract. In such actions broad power is conferred upon Municipal Courts to grant full relief, including equitable relief, even reformation and cancellation of the contract upon which the action is based. But to clothe the court with this power, the action not only must be legal in its nature but must also be ex contractu. That is, the action remains one at law, notwithstanding incidental equitable relief may be granted. A reference to the allegations and prayer of the petition in this case is sufficient to disclose that it presents no such cause and seeks no such relief. It alleges a cause of action disaffirming the contract and prays for no legal relief. The only relief sought is equitable, that is the rescission and cancellation of the contract.

So, had the jurisdiction of the court been raised by a demurrer or other attack on the petition on the ground that the court had no jurisdiction of the cause, the court would have sustained the contention. Whether it could have been cured by amendment at that stage, we need not stop to consider.

Instead of raising the issue the defendant saw fit to answer, raising issues of fact which have been tried and judgment rendered. That presents a different situation.

The defendant Welfare Finance Company filed a cross-petition asking for a money judgment upon the note which was one of the written instruments the plaintiff sought to have cancelled. Jurisdiction over actions for judgments for money not exceeding $2,000 is expressly conferred by Section 1593, General Code.

It is a familiar rule that a defective petition may be aided by the allegations of an answer or other pleading. 31 Ohio Jurisprudence, 625, Section 78. Under this rule, jurisdictional facts may be supplied by other pleadings. Gerend v. Akron, 137 Ohio St., 527, 30 N. E. (2d), 987; 41 American Jurisprudence, 498, Section 301. This rule, it seems to us, bears an analogy to the situation here presented. Where, by other pleadings, relief in due form is invoked within the court’s jurisdiction, such relief is not withheld because of the failure of the prior ineffective attempt.

By its cross-petition, the Welfare Finance Company prayed for relief which was within the power of the court to grant. The decision was adverse. Its prayer for a money judgment was denied, but no appeal was taken by it. Had Welfare Finance Company succeeded in obtaining tbe judgment for which it prayed, neither its codefendant nor the plaintiff could have been heard to say that the court had no jurisdiction. And so long as the judgment remained unreversed, it would be conclusive as to the ownership of the note and mortgage and their validity. A contrary judgment is equally conclusive.

We find that on the state of the pleadings at the time of trial, to determine the issues raised and to give the appropriate relief, required the court to exercise the jurisdiction conferred by subdivision (C) of Section. 1594, General Code.

This appeal is by The Republic Light & Furniture Company. It is trite to say that for it to secure a reversal of this judgment, it must show that its rights were prejudiced thereby. Now assuming error, was The Republic Light & Furniture Company prejudiced thereby? It certainly was not prejudiced by the failure of Welfare Finance Company to obtain a judgment on the note. As it had endorsed the note without recourse, it was not prejudiced by the order directing its cancellation, or at least no prejudice has been shown.

Furthermore, as already indicated, we are of the opinion that on the state of the pleadings at the time of trial, the court had full jurisdiction under Section 1594, General Code, to decide that the note and mortgage should be cancelled and to so adjudge.

For these reasons, the judgment is affirmed.

Judgment affirmed,

Ross and Hildebrant, JJ., concur.


text:
    Goodman, Jr., et al., Appellees, v. Sullivan, Appellant.
    (No. 4723
    Decided March 14, 1952.)

      Mr. Robert L. Mellman, for appellees.

      Mr. Edward A. Moriarity, for appellant.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of the city of Columbus in favor of the plaintiffs against the defendant for the sum of $840 and costs. Defendant appeals.

Two errors are assigned: 1. The judgment is contrary to law. 2. The judgment is against the manifest weight of the evidence.

We may not consider the second assignment of error for the reason that we do not have a record of the evidence taken in the trial court. Although there is a purported bill of exceptions in the files, it is not settled and allowed by the trial judge, nor is it authenticated in any other manner provided by law. Section 11571, General Code.

We then give attention to the first error assigned.

Plaintiffs sued for two months’ rental claimed to be due them as lessors, by the terms of a written lease between the parties. The lease was for a period of five years, the rental was $150 per month, and the leased premises was a storeroom located at 304 East Main street, Columbus, Ohio. Defendant, in his amended answer, admitted the execution of the “alleged lease’’ but averred that it contained a provision, as found by ■the trial judge, that the rented premises were to be used by lessee for the sale of beer, wines, liquor and food and that because of the refusal of the Board of Liquor Control to approve a transfer of a liquor permit then held by defendant, to the leased premises, performance of the lease by the lessee was made impossible.

Prom the briefs we learn that the Board of Liquor Control had refused to permit the defendant to operate a place for the sale of beer, wine and liquor in the rented premises because of the proximity thereto of a public school building. It also appears that the lease carried no exception or condition that if the liquor permit was not granted to the defendant the lease „ would not be binding upon him. It is not contended, nor does it appear, that the premises could not have been used as a restaurant for the sale of food.

The trial judge, upon request of defendant, made special findings of fact, from which he drew his conclusions of law as follows:

“The terms of the lease must prevail. Defendant knew the Board of Liquor Control would have to approve the transfer of his license before he could sell liquor upon the demised premises. He failed to provide for that contingency in his lease. Plaintiff is entitled to judgment for his rent. ’ ’

This succinct conclusion of law is supported by the findings of fact which, in part, are that defendant, planning to move his liquor business from North High street, in the city of Columbus, to 304 East Main street in said city, on August 11, 1950, executed a lease with plaintiff for a period of five years; that the rental was to be $150 per month and defendant was to use the rented premises for the sale of beer, wines, liquor and food; and that both parties knew, when the lease was signed, that the use of the property for the sale of liquor was subject to an order of the Board of Liquor Control allowing or disallowing the transfer of defendant’s liquor license to the demised premises.

In the factual situation developed by the admissions in the pleadings and the findings of fact, the lessee could not elect to treat the lease as ineffective to require the payment of the rent therein provided.

The legal question presented is considered in an annotation in 22 A. L. R., 821, to Imbeschied, Trustee, v. Lerner, 241 Mass., 199, 135 N. E., 219, under the topic, “Effect of Interference by Law with Liquor Business on Lease of Property for that Purpose.” The annotator, in his introductory remarks, says:

“The cases upon this question fall into two main classes, depending upon whether or not the lease is solely for the transaction of the liquor business. If it is not, the courts are practically unanimous in holding that the prevention of such business by law does not affect the tenant’s liability for rent. If the sole purpose of the lease is that the leased property shall be devoted exclusively to the liquor business, there is a conflict of authority as to whether or not the liability for rent is affected by prevention of the business by law.”

The annotation is well supported by cases cited from many states. It is evident that the lease here under consideration falls in the former of the two main classes discussed by the annotator and that the lessee may not be relieved from liability to pay rent.

.Appellees cite the case of Montgomery v. Board of Education, 102 Ohio St., 189,131 N. E., 497,15 A. L. R., 715, which, though not a blue bottle case, is helpful, as Judge Matthias, in the opinion at page 193, enunciates a principle which is applicable:

“The contingency which here occurred was one which might well have been foreseen and provided against in the contract,’ but was not. The law will not insert by construction for the benefit of one of the parties an exception or condition which the parties either by design or neglect have omitted from their own contract.”

The judgment of the Municipal Court is not contrary to law.

Plaintiffs request this court to correct the amount of the judgment in their behalf to the sum of $960, instead of $840 as carried into the judgment entry of November 21, 1951, and cite Section 11363, General Code, as authority for the correction of an error, in computation in the amount of the judgment. As we view this, it is more than the correction of an error in computation. Plaintiffs chose to reduce the amount of the monthly rental claimed from $150 per month to $120 per month, as appears from the amended and supplemental petition. The half-sheet of the trial judge notes the amount of the judgment as “$820 (7 mos. @ $120 per mo. See entry of 11-21-51.) ”■ Plaintiffs’ counsel in his brief states:

“We inadvertently approved the journal entry of November 21, 1951, after which we requested the trial court to make the correction, but he refused to do so because he was of the opinion that the month commencing May 16, 1951, should not be included, which we submit is contrary to the amendment he approved at the opening of the trial.”

Whether or not the court was correct in the amount for .which the judgment was entered, it was a formal judgment, knowingly made, and if plaintiffs were aggrieved by the entry, as made, they should have filed a cross-appeal and tested the correctness of the order in this court.

The judgment will be affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Wiseman, J.

text:
    DeWees, Appellee, v. Spiliotis, Appellant.
    (No. 4760
    Decided February 5, 1953.)

      Messrs. Yorys, Safer, Seymour S Pease, Mr. Byron E. Ford and Mr. John C. Elam, for appellee.

      Mr. Guy R. Martin and Mr. Carl H. Young, for appellant.
   Wiseman, J.

This is an appeal from a judgment of the Court of Common Pleas of Franklin County in favor of the plaintiff in an action growing out of a contract of sale of a piece of real estate in which the plaintiff was the purchaser and the defendant was the seller.

Defendant gave notice of an appeal on questions of law and fact but he proceeded thereafter to regard it as an appeal on questions of law. When the matter was orally argued to this court, counsel for defendant stated that to be consistent the appeal must be regarded as one on questions of law and it could not conscientiously be claimed to be an appeal on questions of law and fact. The court will regard it as an appeal on questions of law. An appeal on questions of law may be taken in an equity action.

The plaintiff’s petition asks for two forms of relief: First, the cancellation of the contract of sale on the ground of fraud, and recovery of money advanced; second, reformation of the contract of sale on the ground of mutual mistake of fact, and recovery of money advanced.

The case was tried to the court without the intervention of a jury. A motion for new trial was filed and overruled. No demand was made for a jury trial.

The question whether the defendant was entitled to a jury trial was raised for the first time in this court. The record inferentially discloses that all parties regarded the action as one in equity, and the parties acted accordingly.

Conceding, without deciding, that the action was one at law and that the defendant was entitled to a jury trial, the objection as to such matter was not seasonably interposed.

Under the state of the record, the defendant is held to have waived his right to a jury trial by proceeding to submit the matter to the court. In Bonewitz v. Bonewitz, 50 Ohio St., 373, 34 N. E., 332, 40 Am. St. Rep., 671, the court, on page 378, said:

“It was not until after the court had found and adjudged against the defendant that he discovered he had been prejudiced by not having his cause tried to a jury. His objection to the mode of trial, we think, comes too late. To sustain his claim would seem to be trifling with justice. He proceeded to trial, without objection, to a court having jurisdiction of the parties, and capable of being clothed with jurisdiction of the subject matter for all purposes, taking his chance of a favorable result, and can not, now that the chance has turned against him, be heard to question the authority of the tribunal to which he consented to submit his cause. He must be held to have waived his right to a jury trial, if he had such right. Nicholson v. Pim, 5 Ohio St., 25; Ellithorpe v. Buck, 17 Ohio St., 72; Arville v. Verner, 22 Ohio St., 372; Miller v. Longrave, 26 Ohio St., 298; Culver v. Rodgers, 33 Ohio St., 537.

“We think it was not error for the trial court to assume jurisdiction and try the issues. And as this holding disposes of the case, it is not important to consider whether, as a matter of law, either party had the right, under the pleadings, to demand a jury. ’ ’

In Hamilton v. Miller, 22 Ohio Law Abs., 55, it was held that when the objection is made at the end of the first day of trial the objection comes too late and a jury is waived.

In the instant case the trial court had jurisdiction of the subject matter and the parties and, therefore, had jurisdiction to hear and determine the matter.

On the issues made, parol evidence was admissible to determine the terms of the contract of sale. 17 Ohio Jurisprudence, 510, Section 414; 2 Pomeroy, Equity Jurisprudence (4 Ed.), Section 866.

The trial court resolved the issues in favor of the plaintiff. There is ample evidence to support the judgment of the trial court. We find no assignment of error well made.

Judgment affirmed.

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


text:
    In re Glatz.
    (No. 4721
    Decided April 20, 1953.)

      Mr. Robert N. Zanville, for petitioner.

      Mr. John J. McCarthy, director of law, and Mr. Louis R. Young, for respondent.
   Per Curiam.

Petitioner was charged with being drunk and disorderly on September 30, 1952. Upon hearing, at the suggestion of the court, the police prosecutor amended the affidavit by writing therein “same being alleged as a fourth offense.” After a plea of guilty, petitioner was sentenced to serve a year in the house of correction.

Section 17-5-14 of the ordinance provides:

“[Intoxication], Whoever is found in a state of intoxication or whoever, being intoxicated, shall disturb the peace and good order, or shall conduct himself or herself in a disorderly manner shall be fined or imprisoned in the workhouse at hard labor, or both, at the discretion of the Municipal Court, but no such person shall be fined for a single offense to exceed fifty dollars and such imprisonment at hard labor shall not, for the first offense, exceed thirty days, for the second offense ninety days, for the third offense six months, and for the fourth or any further repetition of the offense one year. ”

Neither the court nor the prosecutor could amend the affidavit. City of Toledo v. Harris, 56 Ohio App., 251, 10 N. E. (2d), 454. The amendment is a nullity and must be disregarded. However, the court retained jurisdiction of the person of the petitioner under the original unamended affidavit and, upon his plea of guilty to the charge, the court had jurisdiction to impose sentence. If, in the light of the provisions of the ordinance, the sentence was excessive, petitioner had the right to appeal therefrom. Habeas corpus can not be employed as a remedy by a person who has been convicted of a criminal offense and subjected to a fine and imprisonment which he claims to be in excess of the maximum provided by law. Birns v. Sweeney, 154 Ohio St., 137, 93 N. E. (2d), 562.

Petitioner remanded to custody.

Fees, Conn and Deeds, JJ., concur.


text:
    Monetta, Appellant, v. Metropolitan Life Ins. Co., Appellee.
    (No. 4656
    Decided December 8, 1952.)

      Messrs. Shoemaker, Loop <& Kendrick and Mr. Robert B. Go slime, for appellant.

      Messrs. Doyle, Lewis & Warner and Mr. George J. Gould, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment for defendant entered by the court after trial without the intervention of a jury.

The action was brought by plaintiff against the defendant to recover $4,000 under a policy of insurance insuring the life of his son, who met his death while in the air corps as a result of the- crash of a training plane. By way of an affirmative defense, defendant sets forth in the answer that a war risk and aviation provision rider excludes the following risk:

“ (b) Death as a result of travel or flight in any kind of aircraft, or of descending therefrom, unless the insured is being transported on such aircraft without duties relating to such aircraft or descent therefrom.”

Defendant alleges further that the insured was killed in an airplane crash while on a combat training flight as a member of a plane crew and, therefore, denies liability under the policy.

In his reply, plaintiff admits that the rider is contained in the policy and that the insured was killed as the result of a crash, of an airplane of the United States Army Air Corps in which he was being transported prior to such crash and avers that the insured was being transported in such airplane prior to the crash without duties relating to the aircraft or descent therefrom.

It will be noted that under the pleadings an issue of fact was presented as to whether, prior to the crash, the insured was being transported with or without duties relating to such aircraft. At the commencement of the trial, the court overruled a motion of the plaintiff that a jury be impaneled and that the case be tried to the jury. The case then proceeded to trial before the court, resulting in a finding and judgment for defendant.

■Under Section 11378, General Code, an issue of fact arises upon new matter presented in the answer and denied by the reply and, also, upon new matter in a reply which is deemed controverted. Section 11379, General Code, provides that “issues, of fact arising in actions for the recovery of money only * * * shall be tried by a jury, unless a jury trial be waived.” It is to be conceded that at a trial the evidence may be such as to present no issue for a jury, but only a question of law for the court. Whether the evidence presented to the court in the instant case is contradictory or is uncontradicted evidence disclosing circumstances from which different minds might reasonably draw different conclusions is not herein decided because it is apparent that plaintiff’s right to a trial by jury has been denied.

The judgment is, therefore, reversed, and the cause is remanded for a new trial.

Judgment reversed.

Conn and Savord, JJ., concur.


author: Hildebrant, P. J.

text:
    The State of Ohio, Appellee, v. Collins, Appellant.
    (No. 7575
    Decided November 17, 1952.)

      Mr. C. Watson Hover and Mr. Henry C. Schoettmer, for appellee.

      Mr. Thomas C. Spraul, for appellant.
   Hildebrant, P. J.

Defendant appeals from his conviction by a jury of shooting with intent to wound. He complains of the charge of the court on his plea of self-defense, which charge reads, in part, “if the evidence favorable to the plea of self-defense preponderates, then you may find the defendant had the right to resort to self-defense. But if the defendant failed to prove he had the right to self-defense, then you must not consider the defense of self-defense.”

Defendant requested the court to change the word, “may,” appearing in the first sentence to “must,” or, in the alternative to change “must” to “may” in the last sentence of the quoted portion of the charge. The court refused the request.

Judicial recognition of the distinction in connotation between the words, may and must, the former being permissive, the latter mandatory, requires no citation.

If the evidence favorable to the plea of self-defense preponderates, then it becomes mandatory upon the jury to find that the defendant had the right to r eso it to self-defense.

It, therefore, appears that the word, “must,” connoting the mandatory duty should have been used In that portion of the quoted charge wherein the word, “may,” appears.

While the constitutional phrase, “due process,” eludes exact definition, it would seem to require in a criminal case, where the liberty of a defendant is at stake, accuracy, clearness, and certainty in the charge of the court to the jury.

We, therefore, find that it was error, prejudicial 10 the defendant, for the court to refuse to make the charge mandatory, as requested by the defendant.

We find no other error, prejudicial to defendant.

The judgment is reversed, and the cause is remanded for a new trial.

Judgment reversed.

Matthews, J., concurs.