text:
    Speidel, Admr., Appellant, v. Schaller et al., Appellees.

      (No. 154
    Decided April 22, 1943.)

      Messrs. Nichols, Speidel é Nichols and Messrs. Nichols, Wood, Marx é Ginter, for appellant, Russell F. Speidel.

      Messrs. Nichols, Wood, Marx & Ginter and Mr. A. J. Zanone, for Theresa Schaller.

      Messrs. Garrett S Ruarh, for Lillian S. Berkson.

      Mr. W. B. Mente, for appellant, Edith W. Thrasher.

      Messrs. Marble é Vordenberg, for Christina F. Harris and others.

      Mr. Harry Britton, for Cora W. Hayden.
   Matthews, J.

We are considering an appeal and cross-appeals from an order of the Prohate Court determining the rights of the parties in the real and personal property owned by Edith B. Harris, intestate, at the time of her death, reserving, however, for future consideration and adjudication the issue of the rights of the parties in two items of personal property.

The jurisdiction of the Probate Court to make such an order is assailed in this court on the one hand and the jurisdiction of this court to entertain this appeal is assailed on the other. We must dispose of these jurisdictional questions before considering any other question.

It is urged that because the Probate Court did not determine the rights of the parties as to all the decedent’s property, but reserved its decision as to some, no judgment or final order was made from* which an appeal could be taken to this court. There can be no doubt as to the definiteness and finality of the language used by the court in its determination of the rights of the parties to the extent that the court assumed to act. The sole reason for the assertion that it is not final is that the court reserved its adjudication as to other and different property of the decedent. We do not believe the reason is sound. Bach item of property was separate and distinct and a decision as to the devolution of one piece could by no possibility have any effect upon the judgment as to any other. Each was as separate and distinct as separate and distinct causes of action, and it is clear that the finality of a judgment is not destroyed by a reservation of another cause for future adjudication. The court reserved no control over its judgment as to the'devolution of the property involved in this appeal. We believe we stated the correct test of finality in the case of Ryan v. Kroger Grocery & Baking Co., 56 Ohio App:, 469, 11 N. E. (2d), 204, in this language, quoted from 2 American Jurisprudence, 862:

“ ‘In other words, a final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court, and must be final in all matters within the pleadings.’ ”

The Probate Court has three terms annually for the purpose of securing relief after judgment. Section 11643, General Code.

Applying that test, there can be no doubt about the finality of the judgment under review. In 2 American Jurisprudence, 860, it is said:

“A judgment, order, or decree, to be final for purposes of an appeal or error, must dispose of the cause, or a distinct branch.thereof.”

And, at page 864:

1 “The fact that other proceedings of the court may be necessary to carry into effect the rights of the parties, or that other matters may be reserved for consideration, the decision of which one way or another cannot have the effect of altering the decree by which the rights of the parties have been declared, does not necessarily prevent the decree from being considered final, unless there is some further judicial action contemplated by the court.”

The order appealed from determined the rights of the parties in all the property described in the petition. It was disclosed in the answers and at the trial that the decedent had certain rights under the will of her deceased husband, who was domiciled in Canada at the time of his death, and in certain annuities and insurance policies. It was as to these items that the court directed a continuance. The decision of the rights of the parties as to these items could not possibly affect the question as to the rights of the parties in the other items to which the judgment relates. We are of opinion that the reservation of decision as to' those items does not affect the finality of the court’s determination as to the items specifically covered by the judgment.

We are, therefore, of the opinion that this court has jurisdiction to review this judgment.

It is urged that the Probate Court exceeded its jurisdiction by adjudicating the rights of the parties in specific property. The claim is that as the plaintiffs describe tbeir pleading as a “Petition to Determine Heirship,” the power of the Probate Court is limited to the authority conferred by the sections of the General Code under the heading “Determination of Heirship,” and that those sections confer authority only to identify by name the next of kin without any determination of the ratio in which they share the estate and without any direction to the fiduciary in that regard. If that is the correct construction, the remedy provided is wholly inadequate for the purposes of the fiduciary. Let us see whether that construction is required.

Under the caption “Determination of Heirship” are Sections 10509-95 to 10509-101, General Code, both inclusive. By Section 10509-95, General Code, it is provided that:

“Whenever property passes by the laws of intes- . tate succession, or under a will to a beneficiary or beneficiaries not named in such will, proceedings may be had in the Probate Court to determine, the persons entitled to such property.”

In Section 10509-96, General Code, is set forth the essential parties, form, and contents of the petition concluding as follows:

“The petition shall contain a concise statement of the pertinent facts and shall conclude with a prayer for the determination of the heirs and distributees of such decedent or of the devisees or legatees not named in the will, as the case may be, and their respective interests in the estate.”

By Section 10509-99, General Code, it is made the duty of the court, if satisfied by the evidence, to “find and adjudge who are or were the heirs or next of kin of the decedent, and entitled by the law of this state to inherit the estate of the deceased.” (Italics ours.)

And by Section 10509-101, it is enacted that the fiduciary may make a final distribution upon such determination free from “liability arising from such determined interest, and the title to any property thereupon purchased from such fiduciary shall be free from such determined interest.”

We believe we have quoted enough from the statute to make it clear th^t the General Assembly intended to clothe the Probate Court with more than the power to make an abstract declaration of the names of those persons standing in a certain relationship to the decedent as determined by the statutes of descent and distribution. The language imports that it was the legislative intent to authorize the Probate Court to relate that declaration to the interest in the decedent’s estate taken as a result of the heirship.

But is it true that the Probate Court could not draw authority from any other source in this action W e do' not think so.

Certainly, the mere fact that the pleader described his petition as one to declare heirship has no such limiting effect upon the court’s jurisdiction. The substantive allegations are more comprehensive and the prayer is for a determination not only of the names of the heirs, but also of the interest which each inherits. They and not the caption would control the extent of the relief if within the jurisdiction of the court — and we think it is.

Among other powers conferred upon the Probate Court by Section 10501-53, General Code, it is given jurisdiction:

“3. To direct and control the conduct, and settle the accounts of executors and administrators, and order the distribution of estates; * * *

“12 To render declaratory judgments;

“13. To direct and control the conduct of fiduciaries and settle their accounts.

“Such jurisdiction shall he exclusive in the Probate Court unless otherwise provided by law.

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

It is seen from this that the Probate Court is given not only plenary power but that that power is made exclusive unless otherwise provided by law; and in Unger v. Wolfe, 134 Ohio St., 69, 15 N. E. (2d), 955, the court held that Section 11215, General Code, conferring jurisdiction generally upon the Common Pleas Court in existence at the time of the enactment of Section 10501-53, General Code, could not be regarded as coming within the meaning of the, phrase “unless otherwise provided by law” so as to give the Common Pleas Court concurrent jurisdiction over a claim for services rendered by an attorney in an attempt to remove the guardian of an incompetent.

So we hold that the Probate Court had jurisdiction to make the order appealed from. We, therefore, proceed to determine whether any error intervened in the exercise of this jurisdiction.

The issue in this case is. between the heirs of the decedent claiming under the -general statutes of descent and distribution (Section 10503-4, General Code), and the heirs of her deceased husband claiming under the “half and half” statute (Section 10503-5, General Code, in effect at decedent’s death).

Edith B. Harris died intestate on May 7, 1941. Her husband died on March 18, 1941. Neither left surviving children. The husband had a sister who died many years before his death. He left surviving as his next of kin certain descendants of his grandparents, and they are claiming one-half of all the property that came to Editli B. Harris by descent, devise, or deed of gift from her husband, George R. Harris. Some question was raised as to whether they would take per capita or per stirpes, but as they come within paragraph 8 of Section 10503-4, General Code, being descended from the grandparents of the deceased husband of the intestate, they take per stirpes, as they are of unequal degree of consanguinity and therefore do not come within Section 10503-7,. General Code, providing for per capita descent when all are of an equal degree of consanguinity.

In the petition the administrator alleged his belief that certain items of property had come to the decadent by gift from her deceased husband. The heirs of the deceased husband admitted this, and claim that there is therefore no issue as to such property. But this contention ignores the denials made by the heirs of the intestate. The administrator could not have bound them by his positive admission and his expression of an opinion based on information certainly does not have that effect. The task therefore devolved upon the Probate Court- to determine from the evidence what, if any, of the decedent’s property came by devise, descent, or deed of gift from the deceased husband. And this court would not be justified in disturbing its findings unless manifestly against the weight of the evidence.

Counsel are in disagreement as to the construction of Section 10503-5, General Code. It is argued that in construing that section the word “deed” must be given the meaning which it has in legal nomenclature, that is, a sealed instrument, or, as we understand the implications of the argument, at least an instrument that complies with the Ohio recording act, requiring two witnesses and a certificate of acknowledgment; and that as there was no evidence to indicate that any of the personal property was so conveyed by the husband to tbe decedent, tbe heirs of the former can have no possible right even assuming that the transfer was by way of gift. We cannot adopt this reasoning. It violates the entire spirit and purpose of Section 10503-5, General Code. Clearly, the test established by that section as to gifts inter vivos or causa mortis between husband and wife, is whether the transfer from the deceased spouse to the intestate spouse whose estate is being distributed was with or without consideration, and not whether the mode of transfer was in one way or another. If it was for a consideration, the chain of descent was completely broken. If it was a gratuity it was thought to be just that the heirs of the donors should share equally in the event of intestacy. We think it clear that the word “deed” in this statute should be given its ordinary primary meaning of “act; action; thing done; a word of wide application, including whatever is done, good or bad, great or small.” Webster’s New International Dictionary. Any act of the donor that is effective to transfer the property— real or personal — to his or her spouse comes within the meaning of the word as used in this statute. As to most personal property, intent and delivery are the only essential elements. No writing whatever is required to effect a transfer of title. To construe this statute to contemplate more would limit its applicability to those transfers between such husbands and wives as had a prevision of this effect of the transfer upon the distribution of the property upon the death of the donee, and, therefore, made provision against it. by some sort of a written document not otherwise required to make effective their act.

The cases construing Section 10503-5, General Code, make it clear that it applies only to the identical property which descended from, or was devised, bequeathed, or given by the deceased spouse to the intestate. Unless the same property has continued to be owned by the intestate and forms an asset of his or her estate, the statute has no application. The doctrine of tracing property into a transmuted form familiar in the law of trusts, has no relevancy to this inquiry. Guear v. Stechschulte,, Admr., 119 Ohio St., 1, 162 N. E., 46; Wilson v. Eccles, 119 Ohio St., 184, 162 N. E., 797; Murphy, Admr., v. Niehus, 50 Ohio App., 299, 198 N. E., 197.

But, it is said that Section 10503-5, General Code, can have no application to this estate because the deceased spouse left no brother or sister surviving him. He did have a sister who predeceased him by many years. If she had survived him and this intestate, she would have come within the terms of the statute and would have inherited one-half of the property that came to the intestate from her brother. The statute provides that if there are deceased brothers or sisters, their next of kin shall take. It does not provide that the right of the next of kin shall be dependent upon a brother or sister surviving the deceased spouse and predeceasing the intestate, and we know of no rule of statutory interpretation that would justify the court imposing that condition. It would be judicial legislation.

The question as to the burden of proof was debated at the'bar. In 20 American Jurisprudence, 148, it is said:

“The burden rests upon the party who, as the basis of his claim or defense, asserts that he is within an exception or an exemption in a contractual stipulation or a statute to prove all the facts necessary to bring himself within such exception or exemption.”

See, also, annotation to the case of Sullivan v. Ward, (304 Mass., 614, 24 N. E. [2d], 672), in 130 A. L R., 437, at pages 443 and 478. The Ohio cases are in accord. Mathews v. Krisher, 59 Ohio St., 562 at 573, 53 N. E., 52; Ritter v. Ritter, 62 Ohio App., 488 at 494, 24 N. E. (2d), 603, and 14 Ohio Jurisprudence, 283.

It should also be noted that the statute provides that it shall be applicable to property that came to the intestate from the deceased spouse in one of three ways —by devise, descent, or by deed of gift. It is not suit ficient for the claimant to point to property of the estate that was once owned by the deceased spouse. This right is dependent entirely upon the manner in which the title was transferred from the deceased spouse to the intestate. If the transfer was not by devise, descent, or deed of gift, the identity of the property confers no right of inheritance upon him.

It frequently happens that when transfers from husband to wife are the subject of judicial inquiry, no evidence is available of the circumstances under which the transfer was made. Frequently, the court is forced to resort to legal presumptions in order to decide the issue of fact involved. That is the situation here.

One of the presumptions resorted to where a transfer is made from a husband to his wife is that he intended a gift. In Dunn v. Mullan, 211 Cal., 583, 296 P., 604, 77 A. L. R., 1015, it is said:

£iIt is well established that, if a husband conveys to his wife his separate or community property, the mere fact of the conveyance itself will raise the prima facie presumption that he intended the conveyance to be a gift.”

This rule prevails in Ohio. 21 Ohio Jurisprudence, 493.

Let us test the judgment of the Probate Court by these rules.

The court found that a Clermont county farm had been acquired by purchase, and, therefore, its- descent was not governed by Section 10503-5, General Code, but by Section 10503-4, General Code, under which it passed to the intestate’s next of kin. The evidence shows that this farm was acquired from one Schuholz. The transaction involved the exchange of a residence property, the title to which was in the intestate’s name, and a money consideration, which was paid by the intestate’s check. The deed, from Schuholz, however, $ras made to the intestate and her husband. A survey disclosed that the acreage was very much less than that stated in the contract and litigation resulted which continued for several years. Upon the termination of this litigation the deed from Schuholz to the intestate and her husband was recorded and on the same day a deed from the husband to the intestate conveying his one-half interest was also recorded, the consideration recited being one dollar and other considerations. There was no evidence that the husband paid any part of the consideration for this farm.

The Probate Court held that the entire title to this farm passed under Section 10503-4, General Code, to the next of kin of the intestate.

We are of the opinion that the court was justified in concluding that the husband never had any beneficial interest in this farm. The fact that he paid no part of the consideration and immediately conveyed to his wife the legal title for which she had paid furnishes sufficient foundation for the inference. This court would certainly not be justified in disturbing the finding.

Next, the Probate Court found that certain stocks and bonds belonging to intestate were the identical property that had been owned by her husband and that such property passed under Section 10503-5, General Code, one-half to the next of kin of the intestate and one-half to the next of kin of the deceased husband, parties to this action. The objection to this finding by the intestate’s next of kin is that there is no evidence that this property had been given by deed of gift or otherwise by the husband to the wife. From what we have said, it is seen that it is our view that any effective transfer of the title satisfies the statutory requirement of “deed of gift” and that in the absence of evidence to the contrary, as here, there is a presumption of gift. We find no error in this regard.

Finally, the court held that the remaining projjerty was not property that had-come to the intestate from her deceased spouse. It was conceded that Section 30503-5, General Code, applied only to the identical property. As to all except one item the most the evidence proved was that the proceeds of property that had come to the intestate from her husband had been used in the purchase of such property. It was not the same property.

Of course, the rights of the parties became fixed as of the date of the intestate’s death. Any change in the property after that date could not affect the application of the statutes of descent and distribution. As to Item 30 in the inventory (Forney Creek bonds) the evidence is not entirely clear, but it can be deduced from it that in the intestate’s lifetime she had agreed to accept refunding bonds and had actually surrendered the original bonds to the treasurer of the political district that issued them, who, sometime after the intestate’s death, delivered the refunding bonds to the administrator. The Probate Court found that the intestate had transferred title to the original bonds in her lifetime and at her death she owned not those bonds but a contract right to the refunding bonds, which were thereafter delivered to the administrator. We would not be justified in disturbing this finding.

For these reasons, the judgment of the .Probate Court is affirmed in all respects.

Judgment affirmed.

Ross, P. J., and Hildebrant, J., concur.


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    Katz, Appellant, v. Preston et al., Appellees. (Two cases.)
    (Nos. 6289 and 6290
    Decided July 6, 1943.)

      Mr. Joseph Schwarts and Mr. Benjamin S. Schwarts, for appellants.

      Mr. Henry B. Street and Messrs. Harmon, Colston, Goldsmith & Iloadly, for appellees.
   Hildebrant, J.

These are actions ex delicto by a wife for injuries, and by her husband for loss of services, expenses, etc., originally against co-owners in possession and control of premises, part of which was occupied by plaintiffs as tenants.

Along a cement walk used for ingress and egress, defendants maintained a barberry bush serving as a fence and protection against an excavation nearby. While using the walk, the wife pierced her hand with thorns from the barberry bush, with the alleged injuries resulting. One of the co-owners having died, her administrator' was dismissed, on demurrer, for failure of plaintiffs to file the unliquidated tort claim against the estate within the time prescribed by the Probate Code.

Demurrer to the fourth amended petition, on grounds of nonjoinder, was sustained by the court below. Plain-' tiffs, not desiring to plead further, appeal to this court on questions of law.

Admittedly, the general rule at common law and under the statute and rules of practice in Ohio is that, one injured by the wrongful act of two or more joint tort-feasors may elect to sue each of them separately or join them as parties defendant in a single action.

Defendant contends that this case comes under an exception to the general rule with reference to a tort action growing out of the joint ownership of land, wherein it is required the joint owners be joined on the theory that the tort consists of an omission to act, a nonfeasance of duty incumbent by reason of ownership, therefore bringing in question the title to the real estate. Defendant cites 30 Ohio Jurisprudence, 768, Section 45, and 783, Section 55; 5 Durnford & Bast’s Reports; Low v. Mumford, 14 Johns. (N. Y.), 426, 7 Am. Dec., 469; Sumner v. Tileston, 21 Mass. (4 Pick.), 308; Southard v. Hill, 44 Me., 92, 69 Am. Dec., 85; and Gould on Pleading (4 Ed.), 194-195,- in support of that contention.

In Gibson v. Johnson, 69 Ohio App., 19, 42 N. E. (2d), 689, this court examined some of those authorities in connection with this same question and held that “liability for injury caused by defective condition of real estate results from occupation and control and not upon title,” and the injured person could elect to sue any one without joining the others.

In 4 Restatement of the Law of Torts, 445, Section 878, it is stated:

“Each of two or more persons who fail in the performance of a common non-contractual duty is liable for the entire harm of which such failure is the legal cause.”

It is further stated on the same page that the above rule applies to co-owners, and that the rule as to joinder of such persons in one action is stated in Section 882, which is as follows:

“Where each of two or more persons is liable for the full amount of damages which are allowed for a single harm resulting from their tortious conduct, the injured person can properly maintain a single action against one, some, or all of them.”

While included in the demurrer below was the ground that the petition did not state facts sufficient to show a cause of action, it was sustained, so far as the record shows, solely upon the ground of nonjoinder, so this court expresses no opinion as to the sufficiency of the allegations in the petition to state a cause of action.

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

Judgment reversed and cause remanded.

Ross, P. J., and Matthews, J., concur.


author: Ross, P. J.

text:
    Sweeney, Appellee, v. Schneider, Appellant.

      (No. 6251
    Decided May 24, 1943.)

      Mr. Henry E. Beebe and Mr. John D. Shields, for appellee.

      Mr. August A. Rendigs, Jr., for appellant.
   Ross, P. J.

This case is in this court on an appeal *on questions of law from a judgment of the Court of Common Pleas of Hamilton county in favor of the plaintiff, which judgment was entered upon a verdict for $2,500.

The facts in this cáse, as far as the same involve the collision of the automobiles .of plaintiff and defendant, are developed from the testimony of two disinterested witnesses and of the plaintiff and defendant.

Columbia Parkway is a wide, laned boulevard running in a general east and west direction in the city of Cincinnati. Kemper Lane is a street which intersects the boulevard in what is commonly known as a “jog.” In other words, Kemper Lane, which drops down bill from the north, meets the boulevard and then some fifty feet to the west on the boulevard proceeds to the south. A traffic light is maintained at the first intersection to the east where Kemper Lane meets the boulevard as it drops down from the north. There is a light at the point where it again leaves the boulevard and proceeds south continuing down the hill, on the east side of Kemper Lane and the south side of the parkway.

On tbe 10th of June, 1941, at about 5 :45 p. m., a number of automobiles had passed the point where Kemper Lane dropping from the north meets the boulevard. The traffic light showing green, these cars proceeded past this point at a speed of some 25 to 35 miles per hour, the latter the permitted speed ai this point. All of the cars in question were in the lane of traffic next to the line separating the eastbound and westbound traffic. The driver of the first of these cars wished to turn south or to the left after passing the light, and proceed southwardly across the boulevard into the continuation of Kemper Lane as it descended the hill to the south from the boulevard. Traffic proceeding eastwardly along the boulevard prevented the first car from proceeding immediately across the boulevard to the south and this first car came to a stop The car behind it stopped and the car, operated by the plaintiff, next following, stopped also. What then liapj)ened is best stated in the testimony of one of the disinterested witnesses who was proceeding eastwardly in the lane of traffic adjoining the dividing line between east and west traffic. The driver of this vehicle desired to make a left-hand turn, proceeding northwardly up Kemper Lane, and had stopped his truck waiting for the westbound traffic to pass and thus permit him to cross the boulevard from south to north and thence up Kemper Lane. The record contains the following:

“Q. Tell this jury what you saw at the intersection of Kemper Lane and Columbia Parkway this night? What time was it, do you know? A. About five thirty or a quarter to six.

“Q. What.did you see? A. Here was two cars nearest us, both coming to a normal stop, and down the road a pretty7 good piece was another car coming at a terrific speed * * *

“Q- Tell what happened there. A. The next thing I heard was the scream of brakes and this man slid into the back of Mr. Sweeney’s car, knocking Mr. Sweeney’s car into the car in front of Mr. Sweeney.

‘ ‘ Q. Did you stop ? A. "We made our turn and pulled on Kemper Lane and parked and came back.

“Q. Did you see this man there? A. Yes, sir.

“Q. Did you talk to him? A. Yes, sir.

“Q. What did he say if anything? A. Well, I suggested calling an officer, which they generally do in accidents and he seemed to get pretty nervous and said ‘It is all my fault and I will assume all responsibility.’ I even gave the man my name and address. Mr. Sweeney was sort of nervous and after he got my name and address he was the first gentleman to leave the scene of the accident.

“Q. Had the officers gotten there yet? A. No, no officer arrived.

“Q. I want to ask you if you saw any skid marks there? A. Yes, I did.

“Q. Did you measure them? A. No, but I would say anywhere about — about the length of this room, about thirty-five or forty feet probably.

“Q. Where did they lead? A. Right up to Mr. Sweeney’s car and where he hit him. He didn’t stop at all, he was still sliding when he hit him.

“Q., Do you know either one of these men? A. I didn’t before then, no. Never seen either one of the gentlemen in my life that I can recall.”

And another witness, companion of the first in the truck, stated:

“Q. Tell the jury what you saw with your own eyes? A. I am driving east on the Parkway and traffic going west; in order for me to make a left turn up Kemper Lane I slowed up; I wasn’t stopped, but waited for traffic to clear up so I could make a left turn in Kemper Lane and about that time I heard tires screeching and brakes and the traffic in the left lane going west was stopped and this car struck the rear end of the stopped traffic.”

The testimony of the plaintiff is to the same effect. The defendant claims that plaintiff stopped his car suddenly with no signal except the flash of a stop light just before the collision and that it did not give him sufficient warning, although he states he was driving at some 25 miles per hour, with an intervening space of some twenty feet upon a dry street and on a clear day.

The defendant states:

‘ ‘ Q. Will you tell the jury in your own words what happened? A. I was following along in the back of Mr. Sweeney’s car at a distance of possibly 20 to 25 feet and suddenly, without warning whatsoever, Mr. Sweeney came to a sudden stop without signaling, without giving any sort of warning, except that I did see the stop light flash. I attempted to apply the brakes but was unable to stop before I ran into the back end of Mr. Sweeney’s car.

“Q. What is your best judgment as to how fast you were going at that time? A. I would say between 25 and 30 miles an hour, not exceeding thirty at any time.

“Q. That is a 35-mile zone at that point? A That is right.”

. In his petition the plaintiff charged that the defendant was negligent, in “that he was driving his automobile without regard to the general and usual rules of the road as above set forth; second, that he failed to have his automobile under control.”

No “general and usual rules of the road” are “above set forth,” in the petition.

The answer admitted the collision and wms otherwise a general denial.

The defendant assigns as error, prejudicial to him,, that the trial court included in the general charge the following excerpt therefrom:

“Before the plaintiff is entitled to recover in this case he must prove by a preponderance of the evidence that the accident and the resulting injuries of which he complains were caused by the negligence of the defendant, and he must also prove by a preponderance of the evidence that such negligence was the proximate cause of his injuries.”

It is asserted that the language incorporates the vice in special charges criticized in Plotkin v. Meeks, 131 Ohio St., 493, 3 N. E. (2d), 404, and Binder v. Youngstown Municipal Ry. Co., 125 Ohio St., 193, 180 N. E., 899 (See 39 Ohio Jurisprudence, 997), in that the court assumes facts to exist concerning which the evidence develops a controversy. The quotation contains a redundant statement of the obligations of the plaintiff to establish that his injuries were proximately caused by the negligence of the defendant. This clause is a part of the general charge and must be considered as it is framed by other parts of the general instruction. Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St., 33, 140 N. E., 644; Ohio Farmers Ins. Co. v. Cochran, 104 Ohio St., 427, 135 N. E., 537; Ohio & Indiana Torpedo Co. v. Fishburn, 61 Ohio St., 608, 56 N. E., 457.

An examination of the charge as a whole shows that' the jury could not have been misled by this language into any belief that the negligence of the defendant was other than a controverted issue in the case.

The rule laid down in Plotkin v. Meeks, supra, and Binder v. Youngstown Municipal Ry. Co., supra, it is to be noted, is applicable to special instructions given before argument-at the- request of a party.

The defendant makes a like complaint as to language used by the' court in charging upon ‘the issue of contributory negligence. What has been said as to the first complaint applies to this instance also. Apparently (for the language is not quoted in the brief) the portion of the charge of which complaint is made is:

“You will hear the term ‘contributory .negligence’ used during this charge. Contributory negligence is an act or omission on the part of the plaintiff amounting to a want of ordinary care on his part and concurring and corroborating with the negligent act of the defendant as a proximate cause or occasion of the injuries complained of.

“To constitute contributory negligence in law there must be a want of ordinary care on the part of the plaintiff which had a direct connection between- the want of ordinary care of the defendant and the1 resulting injuries.” •

It is to be noted also that in both of these instances the language used has an abstract quality which would not .be present if couched in terms, producing an objectionable, specific direction toward this defendant in particular. The latter definition of the parties is not overlooked, but is not so connected with the particular charges as to lead the jury to a conclusion that the court considered the negligence of the defendant definitely established.

A further complaint is made of the general charge in the use of the following language:

‘ ‘ The law further provides that the drivers of motor vehicles must operate such vehicles on the public roads or highways with due regard for the safety and rights of drivers and occupants of all other vehicles and must not endanger the life or property of any other person while in the lawful use of the roads, and you are instructed that the failure on the part of any driver of a motor vehicle to drive in accordance with this rule of law would constitute negligence.”

Section 12603-1, General Code (110 Ohio Laws, 138), provided:

“Whoever operates a motor vehicle on the public roads or highways without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, and so as to endanger the life, limb or property of any persons while in the lawful use of the roads or highways shall be deemed guilty of a, misdemeanor and upon conviction thereof shall be fined as hereinafter provided.”

The effect of the charge is to state to the jury that a violation of the section quoted constitutes negligence. The violation of this section is a misdemeanor.

At page 337 of the opinion in the case of Makranczy v. Gelfand, Admr., 109 Ohio St., 325, 142 N. E., 688, it is stated:

“Both of these instructions are based upon the principle of law announced in Schell v. Du Bois, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A., 1917A, 710:

“ ‘The violation of a statute passed for the protection of the public is negligence per se, and where such act of negligence by a defendant is the direct and proximate cause of an injury not directly contributed to by the injured person, the defendant is liable.’ ”

See, also, Scott, Admx., v. Hy-Grade Food Products Corp. 131 Ohio St., 225, 2 N. E. (2d), 608; Buckeye Stages, Inc., v. Bowers, 129 Ohio St., 412, 414, 195 N. E., 859; Mahoning Savings & Trust Co., Exr., v. Kellner, Admx., 131 Ohio St., 69, 76, 1 N. E. (2d), 616.

At page 22 of the opinion in the case of Werner v. Rowley, 129 Ohio St., 15, 193 N. E., 623, it is stated:

“The charge of the court is more prolix than necessary and is challenged by defendant, plaintiff in error here, for various reasons. The court read Sections 12603 and 12603-1, General Code, to the jury. It is now contended that, while the court charged that violations of those sections were negligence per se, it did so without explaining the circumstances or defining what was meant by prima facie lawful or unlawful speed There was no prejudicial error in this respect, since the defendant below did not request a charge upon that feature.”

The defendant, however, relies upon the rule pronounced in Heidle v. Baldwin, 118 Ohio St., 375, 161 N. E., 44, and reaffirmed in Times Square Garage Co. v. Spencer, 121 Ohio St., 77, 166 N. E., 901. Paragraph 4 of the syllabus in .the case of Heidle v. Baldwin, supra, is :

“4. The duty imposed by the statute upon the driver of a vehicle on the intersecting highway is not a specific requirement to do or to omit to do a definite act but rather a rule of conduct and the rule of per se negligence is not applicable thereto.”

These cases construed the so-called right of way statute, Section 6310-28, General Code (110 Ohio Laws, 137). It will be noted that this- statute was not a penal statute such as the one under consideration. No decision of the Supreme Court is found-construing Section 12603-1, General Code, as being merely a “regulatory provision” or as merely incorporating “a rule of conduct. ’ ’ Until such pronouncement, this court is fully justified in applying the rules to Section 12603-1, General Code (110 Ohio Laws, 138), which are applied in the violation of other penal statutes enacted for the safety of the public.

By such charge the court does not deprive'the defendant of his right to have the jury pass upon the issue of fact as to whether he operated his motor vehicle with “due regard” to the rights of others and whether he did endanger the lives and property of others.

Again, complaint is made of the construction placed by the court upon the language of Section 6310-22, General Code (110 Ohio Laws, 137), which read as follows:

“Drivers of vehicles before turning, stopping or changing their course shall make sure such movement can be made in safety and shall cause signals to be made of their intention in a way visible outside the vehicle ”

The trial court charged:

“The court first wishes to tell you in connection with that section that in considering whether or not a visible signal was made outside of the vehicle that such signal within the purview of that law may be made either by hand or mechanical device, either of an automatic type or an electrical device, and if a driver causes signals to be made of his intention to stop in a way visible outside the vehicle by a hand, mechanical or electrical device, he would be complying with this section of the law.”

No fault'is apparent in this amplification of the statute which merely required the giving of some appropriate signal “visible outside the vehicle.” The court read the statute. • It is to be remembered the plaintiff testified he gave an arm signal also.

Again, the following language of the general charge is criticized:

“Further, I charge you, members of the jury, along with these other rules that I have stated, this rule— it is the duty of the driver of a motor vehicle which is following another motor vehicle and which latter motor vehicle was clearly visible to the driver in the rear, to keep such vehicle at a safe distance from the vehicle in front and to drive same at such a speed as would permit him to stop before colliding with the car in front. If a driver fails to do so he would be considered to be negligent, unless he proved, of course, that some extraneous power moved him other than the motive power of his own motor and vehicle.”

The court here was apparently attempting to state the rule in Section 12603, General Code (117 Ohio Laws, 398), and apply it specifically to the facts in the case. This statute also was a penal statute and what has been said hereinbefore as to penal statutes is here applicable to this section, the pertinent part of which read as follows:

“* * * no person shall drive any motor vehicle in and upon any public road or hig’hway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. # # Any person who violates the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined as hereinafter provided.”

Its violation constituted negligence per se. Gumley, Admr., v. Cowman, 129 Ohio St., 36, 193 N. E., 627; Skinner v. Pennsylvania Rd. Co., 127 Ohio St., 69, 186 N. E., 722.

The rule laid down in that section did make it an absolute duty on the driver of the following vehicle to so drive his vehicle as to be able to stop in the “assured clear distance ahead.” What is such distance is a question for the jury. The statute did not gain by amplification, but did the court commit error prejudicial to the defendant in so charging is the question. The collision of the plaintiff’s and defendant’s vehicles was admitted by defendant. The charge left open the question of “safe distance” and “such speed.” These were essential questions which the defendant had a right to present to the jury and they were presented by the charge. The vice noted in Binder v. Youngstown Municipal Ry. Co., supra., did not exist in the charge given.

The correct rule is stated in Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960. At page 87 of the opinion, it is stated:

“In this connection, however, this court has specifically held that in order to enjoy the benefit of the legal excuse and to avoid the legal imputation of negligence per se, the motorist must establish that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible. Hangen v. Hadfield, 135 Ohio St., 281.

“The composite rule then may be stated as follows:

“To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is suddenly cut down or lessened, without his fault, by the entrance within such clear distance ahead and into his path or line of travel of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith. Spencer v. Taylor, 219 Mich., 110, 188 N. W., 461; West Construction Co. v. White, 130 Tenn., 520, 172 S. W., 301; Steele v. Fuller, 104 Vt., 303, 158 A., 666; Wosoba v. Kenyon, 215 Iowa, 226, 243 N. W., 569; Kisling v. Thierman, 214 Iowa, 911, 243 N. W., 552; Greenland v. City of Des Moines, 206 Iowa, 1298, 221 N. W., 953; Peckinpough v. Engelke, 215 Iowa, 1248, 247 N. W., 822. See list of cases in 87 A. L. R., 898.”

This duty is manifestly an absolute duty.

In Higbee Co. v. Lindemann, 131 Ohio St., 479, 3 N. E. (2d), 426, in a per curiam opinion the court say:

“Though the statement was at some length, the essential and controlling facts may be briefly stated. On April 13,1933, between nine and ten o’clock in the forenoon, while plaintiff was driving her automobile north on Hall avenue in Lakewood in the rear of the truck cf the defendant traveling in the same direction, her automobile came into collision with the rear end of such truck, resulting in certain injuries. She had followed the truck a few hundred feet and was driving in second gear. The driver of the truck, without signal or other warning, and without being required to do so by any obstacle in its path, but for the purpose of making delivery of some merchandise, brought it to a stop with its right hand wheels four or five feet from the curb. At the time of the collision and during the progress of her automobile from the intersection of Detroit avenue, a few hundred feet to the south, the plaintiff ‘was at such a distance behind the Higbee truck as that she could have brought it to a stop within the assured clear distance ahead’ óf her automobile. The brakes of her automobile were in good condition; and immediately upon discovering the stopping of the truck she made every effort to bring her automobile to a stop. There was not room to pass the truck on the right, and she could not pass on the left because of the south-bound traffic.

“This statement discloses either a manifest violation of Section 12603, General Code, by the plaintiff in the operation of her automobile, or that the plaintiff was driving at such speed that she could have stopped within the assured clear distance ahead and, for some unexplained reason, failed to do so. The facts stated were such as to require the direction of a verdict against the plaintiff. The Common Pleas Court, therefore, did not commit error. It follows that the judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.”

The facts in the instant case clearly show also that any just criticism of this portion of the charge could not have constituted error, prejudicial to the defend-, ant.

The language used by the court “unless he proved,” however, ignored the rule that each party is entitled to all the evidence in the case and not merely the facts, “he proved.” Cincinnati Traction Co. v. Williams, 115 Ohio St., 124,152 N. E., 30; 39 Ohio Jurisprudence, 985. As there.was no attempt on the part of the defendant to rely upon the intervention of any “extraneous power ’ ’ this error was not prejudicial.

The defendant complains of the action of the trial court in permitting the introduction in evidence of a written statement of a witness in which the witness expresses an opinion that the fault of the defendant was the cause of the collision.

The matter developed in the cross-examination of a witness for the plaintiff. The witness had previously testified in chief that: “He [the defendant] said it was his fault.” The defendant desired to impeach the witness and asked him if he had not previously in his own hand writing stated nothing was said by defendant. The witness admitted this. As noted herein-before, there was clear evidence that the defendant had admitted the collision was due to his fault. The testimony of the witness in question clearly showed that the collision was solely due to • the negligence of the defendant. The court did commit error in permitting the introduction of the written statement of the witness expressing an opinion upon the ultimate issue in the case, the negligence of the defendant, but to consider such error prejudicial to defendant in view of the evidence in this case, including the defendant’s own testimony, would be a direct violation of the mandate to tbis court contained in Section 11364, General Code.

Complaint is also made that the trial court permitted counsel to question the defendant as to whether he had made any claim against the plaintiff. This also was error, but again, it does not appear in view of the facts established here, such error could be considered prejudicial.

The evidence against the defendant in this case considering its character and source was so overwhelmingly conclusive as to the negligence of defendant and absence of contributory negligence on the part of plaintiff that the errors noted could not have had any effect upon the verdict. • This also applies to the claims of misconduct on the part of the court and counsel in bringing into the case the interest of an insurance company.

The final complaint is that the verdict is excessive. The injury to the plaintiff of which he complains involved a sacroiliac sprain. The serious character of such an injury is a matter of common knowledge. The permanent, though fluctuating character, is also known. There was substantial evidence sustaining the conclusion that the plaintiff had suffered such an injury. That at times he may have shown normal activity is not at all evidence that the permanent injury does not exist or will not at any time become so severe as to incapacitate the plaintiff from pursuing his usual vocation of a lineman. The amount of the verdict was not, therefore, excessive.

With full cognizance of the errors noted herein, it is the conclusion of the court, for the reasons given, that the judgment of the Court of Common Pleas must be affirmed.

Judgment affirmed.

Hildebrant and Matthews, JJ., concur.


author: Matthews, J.

text:
    Scherder, Appellant, v. Industrial Commission of Ohio, Appellee. (Two cases.)

      (Nos. 6295 and 6298
    Decided July 6, 1943.)

      Mr. Frank J. Richter, for appellant, Dora B Scherder.

      Mr. B. Wm. Heidkamp, for appellant, Dora K. Scherder.

      Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Edward A. Schott, for appellee.
   Matthews, J.

These two plaintiffs have' appealed from judgments, based on instructed verdicts, for the defendant, denying to them, or either of them, the right to compensation from the workmen’s compensation fund, as the widow of George Scherder, deceased.

George Scherder was an employee of The Red Top Brewing Co., a complying employer under the Workmen’s Compensation Act. He is described as having been a very heavy man, and at the time of his injury was 61 years of age. In May, 1938, in the course of his employment he slipped and was thrown violently to the floor, landing in a sitting position. His whole body was undoubtedly severely jarred, causing great pain in many parts of his body and his left knee cap was broken, apparently without coming in contact with any object. He was removed to a hospital where an operation was performed upon his knee. He developed bronchial pneumonia and was confined to his bed for several weeks. At the time he entered the hospital his general condition was diagnosed as good. He was not able to work at any time after he left the hospital. He re-entered the hospital in November, 1939, when the diagnosis showed that he was suffering from arterio sclerosis, myocarditis, and many other specific local manifestations of .a general breakdown of the circulatory system, the most alarming being, of course, the sclerosis of the coronary artery. His condition became worse gradually until his death on December 17, 1939. His death was caused by the climaxing of this general condition as coronary thrombosis, causing an occlusion.

On May 3,1940, Dora Keichler Scherder filed an application for compensation with the Industrial Commission, basing her right thereto on the claim that she was the widow. The proceeding thus initiated was given the number of 1459350 by the Industrial Commission.

On May 18,1940, Dora Burlin Scherder filed her application for compensation, likewise basing her right on the claim that she was the widow. Her application was given the same number and filed in the pending proceeding, thus designated.

Notwithstanding the fact that the caption and number would indicate only one proceeding, the Industrial Commission seems to have treated them as having no relation to one another. It heard the evidence relating to the claim of Dora Burlin Scherder, apparently without notice to Dora Keichler Scherder, including evidence as to the injury and whether that injury caused or accelerated the death, and found that George Scherder’s death was not the result of the injuries and that Dora Burlin Scherder was not his widow. On rehearing, her claim was denied on the same grounds on April 29, 1942.

The commission had previously denied Dora Keichler Scherder the right to compensation on the ground that the proof that she was the widow was insufficient ¡and on rehearing on April 27, 1942, had again denied her the right to compensation on that ground and on the additional ground that George Scherder’s death was not the result of “the injury in this claim.”

In due time, each claimant filed petitions in the Common Pleas Court, appealing from the denial of compensation and these petitions were docketed as independent actions.

On January 23, 1943, the Common Pleas Court sustained a motion of the defendant to consolidate the actions, to which there was no objection or exception.

On February 10, 1943, the consolidated cases came on for trial. At the threshold of the trial, counsel for Dora Burlin Scherder objected to a consolidation of the record of his client with that of Dora Keichler Scherder. That objection was overruled on the ground that the consolidation had already been made. Counsel then objected to the introduction of any of the evidence relating to Dora Keichler Scherder in the case of Dora Burlin Scherder v. The Industrial Commission of Ohio. On this objection, the court ruled as follows:

“I have indicated I will regard this as two cases tried together and I am going to hear the evidence of both claimants or plaintiffs, and I am going to hear the evidence of defendant, or motion of defendant if he has a motion to direct a verdict and if that is overruled, I will hear his defense.”

The case or cases then proceeded to trial and on conclusion of the evidence the court, on motion of the defendant, instructed verdicts for the defendant Separate verdicts were returned and recorded in each case. Separate judgments were rendered on the verdicts, as though the cases had not been consolidated.

Each plaintiff has appealed from the adverse judgment, and in this court the appeals were docketed as distinct appeals, but were heard at the same time.

It developed that the litigants in preparing their bills of exceptions have used the transcript certified to the Common Pleas Court by -the Industrial Commission. In the Dora Burlin Scherder appeal, it appears that there was incorporated into the bill of exceptions that part of the Industrial Commission record that related to the injury, the cause of death, the relation, if any, of the injury to the death, and the evidence of the relation of Dora Burlin Scherder to the decedent, but none of the evidence as to the relation of Dora Keichler Scherder to him. By the certificate of the trial judge and stipulation of counsel, it appears that all the evidence in the bill was offered in evidence, but the rulings of the court on its admission or exclusion are not shown. In view of the instructed verdict, we do not regard the absence of these rulings as material.

The bill of exceptions filed in the appeal of Dora Keichler Scherder contains the evidence relating to the relation between her and the decedent, but no evidence as to the injury or its relation to George Scherder’s death, and the certificate of the trial judge recites that the bill contains all the evidence.

The method used to bring upon the record the evidence offered in these cases is certainly not a model to be recommended. Recourse to it here probably was made necessary by the inability of the plaintiffs to pay the cost of a transcript of the testimony. However, the determination of the form of the bill of exceptions rests with the trial court. This court accepts it in the form presented and passes upon the issues raised by the substantial matter brought upon the record by the certificate of the trial judge.

Counsel have directed our attention to the inconsistent attitude taken at different times by the Industrial Commission and the Common Pleas Court as to whether these rival claims to widowhood were being asserted in one or two proceedings. The General Assembly does not seem to have anticipated snch a situation. From the fact that the right asserted is based entirely on statute, the method of its assertion before the Industrial Commission can be regulated by that body, unhampered by the due process or other constitutional provision. The difficulty arises when the rival claimants appeal to the Common Pleas Court from the denial of their conflicting claims by the Industrial Commission. The statute provides that the claimant shall be the plaintiff and the Industrial Commission the defendant. There is no provision for making a rival claimant or any other person having an interest a party. So separate actions are instituted by the filing of the petitions and they are separately docketed and numbered. There is no statutory provision for their consolidation. Usually, the wisdom and convenience of consolidation are so strong as to bring that result by agreement of the parties or without objection from them as was done in the case of Industrial Commission v. Dell, Exrx., 104 Ohio St., 389, at 392, 135 N. E., 669, but in the case at bar the issues raised prevented consolidation by agreement and both parties insisted on regarding the actions as independent of one another. It would seem that legislation would be efficacious.

However, there is no doubt that in this court the appeals are entirely distinct, and although presented together, each appeal will be disposed of on its own record, without reference to the record in the other appeal.

We will consider the appeal of Dora Burlin Scherder first.

She claims to have been the common-law wife of the decedent and to have lived with him as such during the last three or four years of his life. Without detailing the evidence, it is sufficient to say that there is substantial evidence that they agreed to live and did live together as man and wife, and held themselves out as husband and wife. There was sufficient evidence to require that issue to be submitted to the jury.

In the petition, the plaintiff alleged that the decedent “fell violently to the garage floor, causing him to receive injuries which resulted in his death on December 17, 1939.” There was no allegation of a preexisting disease which the fall aggravated and thereby caused his death to be accelerated. It is urged that evidence of an acceleration of a pre-existing disease was irrelevant under the issue as made by the petition and answer, and Ackerman v. Industrial Commission, 131 Ohio St., 371, 3 N. E. (2d), 44, is cited as so deciding. The syllabus contains no such decision, and what was said in the opinion on the subject was not necessary to the decision. In Lidyard v. General Fireproofing Co., 62 Ohio App., 500, 24 N. E. (2d), 635, we had occasion to consider the scope of the decision in Ackerman v. Industrial Commission, supra, and reached the conclusion that it was not an authority on the point-for which it is cited here. We will not restate our reasons. We still believe they are sound and adhere to the view that in an action against the Industrial Commission, before which the issue was whether the injury had aggravated a pre-existing disease, the issue in the Common Pleas Court is not narrowed by an allegation that death resulted from the injury. :

Now was there sufficient evidence of an acceleration of this disease to require the issue to be submitted'to the jury?

On this subject, one physician testified:

“He gave a history of having had an injury in May, 1938, which was followed immediately by so-called bronchial pneumonia and in view of the fact that he had had, apparently, a normal heart throughout his gall bladder operation and his hospitalization for the gall bladder trouble, I am of the opinion that the pneumonia precipitated the heart trouble. I think the pneumonia was quite a definite factor and that it entered into this man’s decline of health arid the progress of his heart condition.”

Another physician-testified that:

“Q. Doctor, are you able to give us an opinion as to whether or not his death from heart trouble was the result of his injury to his knee in May, 1938 and subsequent confinement in the hospital? A. In my opinion, in surveying this man’s history, as I knew him and knowing that he was in good health in 1937, that he was in sufficiently good health to withstand a major operation and get a complete recovery, and knowing that he had quite a severe injury and knowing that he had, following that, a bronchial pneumonia, and knowing that immediately following that he had these various conditions pertaining to the heart, I am of the opinion that his accident was a direct factor in his decline.

“Q. Will you state whether or not in your opinion unusual causes, such as a severe fall followed by bronchial pneumonia would have a tendency to aggravate and accelerate such a sclerotic condition? A. In my opinion there is no question about the condition brought on by Mr. Scherder’s accident, that the subsequent bronchial pneumonia would hasten the process. The fact that he was quiet and had to be in bed, even the mental effect of a man who is ambitious and wanting to work and having to be confined to the house for a year would have a definite effect upon his sclerotic process.”

Our conclusion is that the court erred in sustaining the defendant’s motion for an instructed verdict in the case of Dora Burlin Scherder, and that the judgment must be reversed in her case.

Turning now to the case of Dora Keichler Scherder, we find the record presents entirely different issues for consideration. There is no evidence whatever on the subject of the relation of the injury to the death, and if that was an issue on the rehearing before the Industrial Commission, the dearth of evidence is fatal to the appellant, Dora Keichler Scherder. The appellant’s claim is that there was no such issue. Her claim is that when the Industrial Commission rejected her claim on the sole ground that she was not the widow, that made the only issue before the commission on her application for a rehearing, and the only issue in the Common Pleas Court on appeal, and that the rejection of her claim on rehearing on the additional ground that the death did not result from the injury was null and void. Counsel claims that result is produced by the application of the provisions of Section 1465-90, General Code, as amended, effective July 3, 1937, requiring the Industrial Commission to specifically state the ground or grounds of rejection. He argues that the purpose must have been to develop the issue or issues on the original hearing on the application for compensation and to limit the inquiry thereafter both before the commission and the court to the issue or issues thus developed.

We think it is true that the purpose of the amendment was to require that the ground of the rejection should be developed and clearly stated by the Industrial Commission. The history of the times makes it clear that the amendment was in response to dissatisfaction with the denial of compensation without clearly stating the ground, the result being that the claimant was often in a quandary as to whether the rejection was on a jurisdictional ground, entitling him to a review on appeal, or whether the rejection resulted after an inquiry into the extent of the disability from which there could be no appeal, as the commission had assumed and acted within its continuing jurisdiction. By specifying the grounds of rejection from which an appeal could be taken and requiring the Industrial Commission to specifically state the ground of rejection, it was hoped the uncertainty theretofore arising in many cases as to whether rejection had been on a jurisdictional ground would be avoided.

But we find nothing in the amendment that in any way limits the jurisdiction of the Industrial Commission on the rehearing of the claim. That the original rejection of the claim should have no such crystallizing effect on the issues on rehearing is indicated by the provision in Section 1465-90, General Code, that upon the filing of the application for a rehearing “the former action of the commission * * * shall be vacated.”

Counsel relies on State, ex rel. Moore, v. Industrial Commission, 141 Ohio St., 241, 47 N. E. (2d), 767. "VYe do not think it supports his contention. That case did not involve the permissible issues before the Industrial Commission on rehearing or the actual issues litigated on appeal to the Common Pleas Court. The Common Pleas Court had found that the plaintiff was entitled to participate and had so certified to the Industrial Commission. Notwithstanding that, the Industrial Commission refused to make an award and the case was an original action in mandamus in the Supreme Court to compel an award. In that action the Industrial Commission attempted to defend on grounds that it might have asserted, but did not assert in the appeal from its rejection of the claim. All the Supreme Court decided was that the judgment of the Common Pleas Court was res judicata not only of the issues and defenses that were asserted, but all that might have been asserted. Clearly, the case is no guide to a conclusion in this case.

Our conclusion in the case of Dora Keichler Scherder is that the court did not err in directing the jury to return a verdict for the defendant.

For these reasons the judgment in the case of Dora Burlin Scherder (No. 6295) is reversed and the cause remanded for further proceedings according to law, and the judgment in the case of Dora Keichler Scherder (No. 6298) is affirmed.

Judgment reversed in cause No. 6295.

Judgment affirmed in cause No. 6298.

Ross, P. J., and Hildebrant, J., concur.


author: Montgomery, P. J.

text:
    The State of Ohio, Appellee, v. Cocco, Appellant.

      (No. 2096
    Decided May 21, 1943.)

      Mr. D. Deane McLaughlin, prosecuting attorney, and Mi. D. Bruce Mansfield, iov appellee.

      Mr. Oscar M. Abt and Mr. James M. Aungst, for appellant.
   Montgomery, P. J.

The defendant, appellant herein, was indicted, tried, convicted of murder in the first degree without recommendation of mercy, and sentenced. From that judgment of conviction an appeal was perfected to this court.

There are six assigned errors. Numbers five and six relate to the charge of the court. In that charge we find nothing prejudicially erroneous and those assignments may be disregarded. The others in their order are:

1. It is urged that the defendant was so badly represented in the Common Pleas Court as to have been in effect without representation. His then counsel was of his own choosing. The record would indicate that this counsel handled himself well enough in the presentation of evidence and the examination of witnesses.

For reasons of his own, and to develop a theory, this counsel evidently was guilty of gross errors in judgment and did prejudice luis client thereby.

In the voire dire examination of jurors and in his opening statement he indicated that the defense would be an alibi. He offered no evidence in support of such defense and no explanation of such failure to do so.

He volunteered and reiterated to the jury the proposition that his client had a criminal record. In the course of his argument he referred to the use of aliases by his client.

These matters are the ones to be discussed under the other assignments of error. Present counsel for defendant are obliged to rely on three lines of alleged erroneous conduct on the part of the state, to all of which this former counsel made his contribution.

Ordinarily there would be no reversal on the basis of chosen counsel proving himself inept and injudicious. Plowever, the fact that he made such contributions to the cause of the state is to be taken in connection with the assigned errors and does in fact magnify them. That fact imposed an additional burden on the trial court and increased his duty to insure the defendant a fair trial.

2. Claim is made that there was abuse of discretion and error in permitting the reopening of the state’s case after it had rested, for the admission of evidence as to another alleged similar offense, and in the charge of the court concerning it.

The charge of the court made immediately following the introduction of this evidence was not erroneous, if the evidence were competent. It is based squarely on the holding of the Supreme Court in Whiteman v. State, 119 Ohio St., 285, 164 N. E., 51, 63 A. L. R., 595. And of course the reopening of the case on application of the state did not constitute an abuse of discretion. Was it error to admit this evidence?

As Judge Marshall stated on page 291 of the White-man case-.

“In a number of cases in this court convictions have been reversed because of the admission of testimony of collateral offenses, but in each instance this court has recognized that there are well-defined exceptions to the general rule of exclusion. It is only fair to say that there has not been unquestioned harmony or clear logic in all the cases where judgments have been reversed on that ground.”

That case discusses at length the relevancy of such testimony, and in the first paragraph of the syllabus and in the opinion on page 290, it is held that testimony of other unconnected crimes may be received, where the sole purpose of such testimony is to establish identity, and the testimony is relevant to that issue.

The Whiteman case was decided November 14, 1928. Section 13444-19, General Code, became effective July, 1929. That section makes proof of other like acts competent to show motive, intent, absence of mistake or accident, or a scheme, plan or system in doing an act. It does not by its terms make the evidence competent to show the identity of the defendant. But this court has held, and in effect it is stated in 12 Ohio Jurisprudence, 336, Section 323, that evidence of other offenses were admissible under established rules of evidence before the passage of this section and that such section is declaratory and procedural.

However, the second paragraph of the syllabus in the Whiteman case is in this language:

“Where other offenses of like character are committed by the same persons in the same locality within a period of time reasonably near to the offense on trial, and where the same plan, system and methods are followed, testimony of such other offenses is relevant to the issue of identity.”

In the instant case, the other offense as to which testimony was admitted was not committed in the same locality as the one for which the defendant was being tried. The latter was committed in Canton, Ohio, the other in Hamtramek, Michigan. In the local case, two footpads waylaid and murdered, by shooting, the decedent at this own garage while he was alighting from his car. In the Hamtramek case, two men attempted to stage a holdup in a public street, just outside a bank, and Coceo’s admitted or professed connection with it was- that he drove the car in which those who attempted the robbery had intended to make their “get-away.”

We hold that even under the language of the White-man case, which broadened the understood rule, the evidence was not competent and its admission constituted prejudicial error.

3. In the course of the opening argument for the state, the prosecuting attorney read to the jury a notice which had been served upon him that evidence would be offered to prove an alibi, to wit, that at the time of the alleged offense the defendant was in Bellaire, Ohio. This notice had been given in accordance with Section 13444-20, General Code. It was signed “Dominic Coceo by Joseph E. Julius his attorney,”■ It had not been filed with the papers in the case. It was not offered in evidence. When it was read to the jury, the statement was made, that it was ‘ ‘ signed not only by the defense attorney, but by the defendant himself,” obviously a misstatement.

Counsel for defendant objected to the admission of this document, then withdrew the objection for some reason not understandable. And again the court was confronted with an instance of manifest lack of understanding on the part of counsel as to his client’s rights and his danger.

Under no . conceivable theory should this document have been presented to the jury. It could not do otherwise than prejudice the jury, when there had been no evidence of an alibi. And the act of defendant’s counsel in discussing the matter of alibi before the prospective jurors and the impaneled jury did but aggravate the prejudice. The court should on its own motion have protected the defendant from this reading of the notice and the failure so to protect him was erroneous and prejudicial.

4. The final assignment of error to be discussed is the reference in argument by counsel for the state to the matter of aliases charged to the defendant. The assistant prosecutor in his argument to the jury said:

“Did he take the stand in his own behalf? I don’t have to tell this jury why he didn’t take the stand. That should be obvious. Dominic Coceo; Mimi Coceo; Nick Coceo; Jack Risko; Frank Bartoni; Nick Russo; that speaks for itself, ladies and gentlemen. He couldn’t take the stand.

“Any man who uses that many aliases, and who don’t do a legitimate business — it’s only a criminal who needs to use aliases. If he were honest, he wouldn’t do it. Oh no. Six of them. Now you can see why he didn’t take the stand.”

True, the indictment was returned against Dominic Coceo alias these other five names. That is a not uncommon practice. But there is an utter absence of proof in the record that this man ever used these other names or any of them. There is no evidence that this man “don’t do a legitimate business.” Again there was a failure to protect him and his rights were prejudiced. The only purpose of such an argument under the state of the record would be the prejudicing of the jury.

It seems to us that there can be no doubt of the error committed in the respects mentioned, and that this man did not have a fair trial, a trial to which he was entitled under the rules of law prescribed and which should have been understood.

The state contends that these matters, even if erroneous, should be ignored. The proposition is advanced that this defendant is guilty of the crime charged and that such guilt is proved by unquestioned evidence. The record would so indicate although it is to be observed that the proof of the killing of the deceased was by circumstantial evidence.

But it is not sufficient to say that there is adequate proof of guilt. It does not follow that the defendant was not prejudiced erroneously by the injection into the case of the matters we have discussed. Who can say tc what extent the conviction may have been due to incompetent evidence and improper argument? There is no “substantial justice” statute such as applies to civil actions.

Ours is not an arbitrary or autocratic government It is a matter of contract between the state and the individual. The latter is bound to defend, support and maintain the government. The state is bound to guarantee to the individual, life, liberty, and the right to pursue happiness, and the greatest of these is life.

The state prescribes the conditions under which the individual may be deprived of any of these rights. The individual by retaining his citizenship or his residence accepts these limitations upon the governmental guaranties. But in doing so, he reserves the right to insist that the state, in working such deprivation, shall proceed according to the rules prescribed by its agents, the Legislature and the courts. He is entitled by natural right and by compact to safeguard himself against any violation by the state of the rules it has adopted.

To put it succinctly, a man on trial for his life, his most valuable possession, the most sacred of his guaranteed rights, is entitled to have strict compliance with the rules of law, regardless of the probability or even the proof of his guilt.

The judgment is reversed and cause remanded.

1

Judgment reversed and cause remanded.

Sherick and Putnam, JJ., concur in paragraphs 1, 3, 4 and 5 of the syllabus and in the judgment.


author: Sherick, J.

text:
    Hurst, Appellee, v. Haak et al., Appellants.
    (No. 2114
    Decided October 6, 1943.)

      Mr. Clayton Hoffman, for appellee.

      Mr. George J. Burke, Mr. James C. Gruener, Mr. Robert H. Trenkamp and Mr. Robert P. Wilson, for the Administrator.

      Mr. Herschel Kriger, for appellants Harry and Lena Haak.
   Sherick, J.

This is an eviction action between landlord and tenants owning and occupying living quarters' in a defense-rental area, so declared by the price administrator. It was commenced in the Municipal Court of Canton. Soon thereafter the administrator requested leave to be made a party defendant. The request was granted and thereafter the price administrator assumed and bore the major portion of the defense. Upon trial the court found that inasmuch as the tenancy was on a month to month basis the landlord may terminate it at will. In other words, it was found that in such a case it was unnecessary for the plaintiff to give preliminary notice, as prescribed in Section 6(d) (1) and Section 6 (d) (2) of Maximum Rent Regulation No. 15 as promulgated by the price administrator pursuant to the Emergency Price Control Act and the amendment thereto; and that, inasmuch as plaintiff had fully complied with the provisions of the state law, Section 10451, General Code, respecting the giving of notice in actions of forcible entry and detainer, which was controlling, plaintiff was entitled to a writ of' restitution which was ordered. Thereupon the administrator and the tenants, independent of each other, gave notice of their intention to appeal, the tenants upon questions of law and fact, the administrator upon questions of law alone. The court granted a stay of execution pending these appeals.

The appeal of the administrator has -been dismissed for failure to file briefs in accordance with Rule 7. The tenants’ appeal was also attacked by motion to dismiss. The fact feature of their appeal has, of course, been dismissed and the cause retained as one on questions of law. The tenants, appellants, having filed no briefs, ask leave to adopt and refile the administrator’s brief. This request was not only granted but counsel for the administrator were permitted to argue and present the tenants’ appeal. This was done because of the importance of the matter in issue.

Certain phases of the parties’ position, as. disclosed by argument, briefs and the record, require comment preliminary to consideration of the question for solution. Plaintiff tried her case upon the theory of nuisance. The record displays ample proof thereof, even though the tenants assert the contrary. The defendants placed their main reliance on lack of notice in conformity to the administrator’s regulations. The plaintiff does not concede this point. Whether the regulations were complied with is relatively of little importance, as we shall hereinafter demonstrate. It appears from the files before us that the trial court took the view that plaintiff’s action was properly triable on the issue of one’s right to contract, which was untouched by the federal act and the administrator’s regulations. This was provoked by the court’s desire to conform to a prior judgment of the Court of Common Pleas of Stark county. As we see the matter, plaintiff’s complaint was predicated on nuisance. She was entitled to have her cause so tried. If the court was right in its conclusion, even though its judgment was questionable on its theory of the case, its judgment should be affirmed. We shall treat this review just as if plaintiff had proved that her tenants had committed a nuisance, because of which she would ordinarily be entitled to a restitution of her property.

It must further be understood that the constitutionality of the federal act is not involved. The real query is whether the trial court, or this court, may question or consider the propriety of the administrator’s regulation, which defendants say may be done only by the Emergency Court created and so empowered by the federal act, and that the Emergency Court alone possesses siich jurisdiction. If the regulations are responsive to the purpose and powers properly delegated to the administrator by the act, then it must follow that the defendants have the right of it, and the landlord must strictly pursue the administrator’s regulations as to notice, upon the arbitrary rule that such aii act is an imperative war measure necessary to control rent inflation which was recognized in a like act in Block v. Hirsh, 256 U. S., 135, 65 L. Ed., 865, 41 S. Ct., 458, 16 A. L. R., 165.

If, on the other hand, the regulations go beyond the purpose of the act and the powers thereby delegated, and thereby arbitrarily abrogate and temporarily nullify provisional remedies created by state statutes, then the question presented is neither one of interpretation of the regulations nor a questioning of their propriety; but the inquiry goes to the power of the administrator to make any 'regulations covering a subject which is not within the scope and purpose of the act under which they purport to be promulgated. Such a subject is always one for judicial inquiry in any court wherein constitutional rights are sought to be enforced. If this were not true, then one who has been delegated certain powers may assume to exercise others that were never embraced within the grant or intended to be exercised.

Our attention has been called to three cases wherein federal courts have considered the constitutionality of the act. The first, Henderson v. Kimmel, 47 F. Supp., 635, holds it constitutional. The other two, Roach v. Johnson, 48 F. Supp., 833, and Payne v. Griffin, 51 F. Supp., 588, hold the act unconstitutional. All three of these adjudications have to do with maximum rent provisions. They are'not responsive to the inquiry which this court now encounters.

The rule concerning the right to delegate legislative powers is thus stated in United States v. Rock Royal Co-Operative, 307 U. S., 533, 83 L. Ed., 1446, 59 S. Ct., 993, headnote 26:

“For the purpose of determining whether legislation involving questions of economic adjustment involves an invalid delegation of legislative power, each enactment must be considered to determine whether it states the purpose which the legislature sought to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those charged with the enforcement of the law to understand these limits.”

From which it must follow that if an act clearly states its purpose, it can and does not authorize a delegation and exercise of power not embraced within its declared purpose. The mere fact that congressional policy directs that rents shall be stabilized does not confer power upon an administrator to control all litigation in the forcible entry and detention field, which is not concerned with maximum rent.

Just what is the purpose of the Emergency Price Control Act insofar as it affects rents ? Its title reads:

“To further the national defense and security by checking speculative and excessive price rises, price dislocations, and inflationary tendencies, and for other purposes.”

Section 1 (a) which defines its purpose insofar as it respects rents, states that:

“* * * the purposes of this Act are, to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents.”

The section proceeds on to recite the evils of inflation which the act proposes to check, and declares that it shall be the policy of other affected boards “to work toward a stabilization of prices.”

Sections 2 (a), (b) and (c) confer powers upon the price administrator to promulgate regulations. Subsection (b) particularly authorizes the administrator to create defense-rental areas, and to “establish such maximum rent or maximum rents for such accommodations as in his judgment will be generally fair and equitable and will effectuate the purposes of this act.” All these subsections throughout, as well as the prohibitions found in Section 4 (a), (b) and (d), are addressed to the common end that Congress was concerned with maintenance of the price structure, and prevention of inflation, by the establishment of maximum rents that might be charged within a declared rent-area. It clearly intended to curb all manner of rent pyramiding in order that the war effort might not be hampered by such practices, and nothing more.

In Section 302, subsection (g) it defines the term “rent” to mean “the consideration demanded or received in connection with the use or occupancy or the transfer of a lease of any housing accommodations.” In subsection (i) of the same general section, it defines the term “maximum rent” to mean “the maximum lawful rent for the use of defense-area housing accommodations. ’ ’

There is not one positive provision within the entire act which warrants an assumption that Congress ever intended to dispossess landlords of their lawful right to resort to state courts for redress of a wrong done to their property by a tenant during the course of the tenancy when price was not also an issue involved. The act did not delegate power in the administrator over non-defense areas. Neither does it confer power in defense areas to its administrator to stifle rights which alone concerned matters other than price, or to say to the landlord in every case that warranted ejectment that he must not move to procure restitution until the administrator or someone under him capriciously .consents thereto.

Did Congress propose to initiate a policy, to promote the war effort, that a property owner might not eject a duplex tenant engaged in operating a house of prostitution therein, without the administrator’s consent, when that tenancy made it impossible to retain tenants in the other half of the property? The absurdity of the question admits of but one answer, which is an emphatic no.

The evidence in the record before us discloses that plaintiff is á widow, dependent on the rents from her two-suite apartment; and that defendants’ Haaks’ acts and conduct in their occupancy have made it impossible to keep her second apartment rented. There is no present or contemplated evidence of violation of maximum rent regulations. The intervention of the administrator in the parties’ controversy is uncalled for and unauthorized.

It is the judgment of this court that the administrator has assumed the power to regulate a matter that, was not granted under the act. His interference therein is not sanctioned by law. He is without power or authority to promulgate regulations that supersede state law which is alone controlling. The trial court reached the correct conclusion. Its judgment is therefore affirmed.

Judgment affirmed.

Montgomery, P. J., and Putnam, J., concur.