author: Horn beck, J. By the Court.

text:
    Brown, Appellee, v. Wackman, Appellant.
    (No. 168
    Decided May 14, 1949.)

      Mr. C. G. Grabbe, Messrs. Garek dt Sillman and Mr. II. II. Grabbe, for appellee.

      Messrs. Wiles ($> Boucher and Mr. Forrest E. Sidener, Jr., for appellant.
   Horn beck, J.

This appeal is from a judgment for $16,000, entered on a verdict of a jury in favor of plaintiff and against defendant, for damages for personal injuries suffered by plaintiff when a car in which he was riding collided with a truck.

Upon plaintiff’s opening statement to the jury at the conclusion of his testimony and at the end of all the testimony, defendant moved for a directed verdict and, after verdict, for judgment non obstante veredicto, which motions were overruled.

It was the claim of defendant at the trial, and is here, that, upon the facts appearing, the assured-clear-distance-ahead provision of Section 6307-21, General Code, precludes any recovery on behalf of plaintiff. To resolve this question upon the developments in their most favorable light to plaintiff, are the following facts:

Plaintiff and his brother were partners in farming operations. On the night of February 6, 1948, they left their home, moved over to route 70 and started to Jeffersonville. Glendon Brown, brother of plaintiff, was driving a 1934 Ford sedan. To his right was Merle Jones and to Jones’ right, plaintiff was seated with his right arm in the window of the car. They had traveled from South Charleston and had reached a place a short distance from South Solon, moving in a southeasterly direction on the highway, which is 18 feet wide, at a rate of speed of about 40 miles per hour. Their headlights were burning. On the night of the collision the driver of a 1940 GMC one-and-one-half-ton truck, belonging to defendant, James Wackman, abandoned it on the right side of the highway about three-tenths of a mile from South Solon. The truck was empty and most of it had been moved off the highway proper but there was left projecting about 10 inches over the paved portion of the highway a part of the rear left side of the bed of the truck. The truck had no signals of any kind on it and no flares or lights had been put along the highway to warn of its presence. At a distance of about 400 feet to the southeast of the place where the truck was parked there is a turn in the roadway. As plaintiff’s driver approached the parked truck, an automobile moving to the northwest, the opposite direction from that in which plaintiff was moving, made the turn in the highway- and when snch vehicle had straightened up upon the.-thoroughfare its front lights were so bright that they blinded the driver of plaintiff’s car. The driver immediately applied his brakes and materially lessened- his - speed, but, before he stopped, the left rear portion ¡of the truck projecting over the highway “came over-his right fender,” as he put--it, resulting in the collision and very serious injuries to plaintiff’s arm. Plaintiff’s driver says that because of the blinding lights his vision was materially cut off and that he could not, and did not, see the projecting truck until he was almost upon it.

. It is conceded that the negligence, if any, of the driver of the automobile may be imputed to plaintiff because of their partnership. As to the negligence of defendant, which was flagrant, there is no issue.

The sole determinative question here is whether, as a matter of law, plaintiff was chargeable with contributory negligence.

Defendant cites and relies upon two cases: Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. (2d), 427, and Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960.

The trial judge instructed the jury upon the assured-clear-distance-ahead provision of Section 6307-21, and that it enjoined a specific requirement of law upon the driver, a violation of which constituted negligence per se. He further charged the jury:

“That the law, however, does not require the driver to do that which is impossible in the face of an emergency which he could not foretell and over which he had no control. And a driver who has failed to comply with these provisions of the statute may excuse such failure and avoid the legal imputation of negligence per se by establishing that, without his fault and because of circumstances over which he had no control,, compliance with the law was rendered impossible.”

This charge is in conformity with the third paragraph of the syllabus of Kormos v. Cleveland Retail Credit Men’s Co., supra.

The Kormos case recognizes that there may be a legal excuse for the failure to observe the assured-eleardistance-ahead provision. In the opinion, Judge Jones said, at page 477:

“If he [plaintiff] were blinded many moments before the collision, it was his duty to immediately decrease his speed and, if necessary, to stop until he recovered his vision. In the Wosoba case, supra [Wosoba v. Kenyon, 215 Iowa, 226, 243 N. W., 569], the syllabus reads: ‘The failure of the driver of an automobile to drive at such speed as will permit him to bring the car to a stop “within the assured clear distance ahead” constitutes, in the absence of some legal excuse, negligence per se. And such excuse is not made to appear by evidence that the driver met a car and was temporarily blinded by the lights shining in his face, but did, not slacken Ms speed.’ There is no evidence that plaintiff made any effort to decrease his speed until a moment before the collision occurred.”

There is evidence in the instant case that plaintiff’s driver did decrease his speed as soon as he appreciated his inability to see the road ahead of him, but before he came to a stop the collision occurred.

Smiley v. Arrow Spring Bed, Co., supra, is the ultimate in strict construction of the assured-clear-distance-ahead provision. However, even in that case, Judge Hart, at page 87, said:

“Notwithstanding the strict construction given the assured clear distance statutes by this court, and by the supreme courts of other states in the cases just cited, this court in the cases of Gumley, Admr., v. Cowman, supra; Kormos v. Cleveland Retail Credit Men’s Co., supra; and Hangen v. Hadfield, 135 Ohio St., 281, 20 N. E. (2d), 715, suggested that situations may arise and collisions occur under circumstances which provide legal excuse to the person charged with the violation of the statute.”

The opinion continues and, characteristic of the writer, many cases are cited, coming within the exception to the strict construction. No one of them presents such similarity of facts to the instant situation as to be especially applicable. However, the second paragraph of the syllabus of the Smiley case recognizes that to give application to the statute the driver must not operate his automobile at a speed greater than will permit him to bring it to a stop within the distance between his automobile and a discernible object obstructing his path.

No good purpose will be served to engage in a prolonged discussion of the application of the assured-clear-distance-ahead provision in the many other cases in which it has been considered. Our Supreme Court has, in several of its opinions discussing the subject, relied upon Iowa cases.

In Kadlec v. Al. Johnson Construction Co., 217 Iowa, 299, 252 N. W., 103, decided since Lindquist v. Thierman, 216 Iowa, 170, 248 N. W., 504, 87 A. L. R., 893, and cited in Smiley v. Spring Bed Co., supra, in commenting on Lindquist v. Thierman, the judge writing the opinion said, at page 309:

“It is not inconsistent to say that, if there are other peculiar circumstances present, which, added to the unlighted truck, make it indiscernible, then the question of contributory negligence might well be for the jury.”

And in Kimmel v. Mitchell, 216 Iowa, 366, at page 369, 249 N. W., 151, it is said:

‘ ‘ The failure of appellee to timely discover and avoid colliding with the truck may have been due to the position in which the truck was parked on the highway and the diversion of attention caused by the light of the truck in' the adjoining field.”

Upon the factual development here, there is a ques^ tion whether, under the circumstances confronting plaintiff’s driver, that part of the truck which projected into the highway was a discernible object. The circumstances over which plaintiff’s driver had no control were the brilliant lights on the approaching automobile and the nature of the obstruction in the highway and the small part thereof, if any, which would be visible. Prom the statement of the driver of the truck as to the place where and the manner in which it was parked, it is inferable that no one of the wheels was on the surface of the highway and that the truck upon which the bed rested was not over the highway.

When the vision of the driver of plaintiff’s car was impaired, he was moving 40 miles an hour and the exercise of the reflexes necessary to stop his car took some time. The speed of the oncoming car is not fixed but at any ordinary driving rate it would be only a matter of seconds from the time it was straightened up on the highway until it came alongside the truck and the place of the collision. Plaintiff’s driver, in braking his car and attempting to bring it to a stop, observed the precaution which was missing in both the Kormos and Smiley cases.

The obligation of plaintiff’s driver must be determined upon the physical facts with which he was confronted. The oncoming lights were to his left and certainly were of first concern in preserving his own safety. His attention must have been diverted for a period of time to those lights. Notwithstanding the visibility of the highway produced by the headlights of the automobile, that portion of tbe truck which was struck would not be as discernible as other objects of greater size or extending on to the surface of instead of over the highway. It is not sound to assume that all objects on or above the highway under all conditions are equally discernible. Our military authorities have developed the art of camouflage to such a degree that objects are made largely indiscernible or are made to appear to be that which they are not. Changing and varying lights, shadows, objects and atmospheric conditions do affect visibility on the highway. The courts have said that a stake or a wire in a highway is not a discernible object within the contemplation of the assured-clear-distance-ahead statute. We have already held in Farris v. City of Columbus, 85 Ohio App., 385, 53 Ohio Law Abs., 369, 85 N. E. (2d), 605, that a defect in a street may or may not be such an obstruction in the highway as to be visible to the driver of an automobile. Manifestly, there are many degrees of visibility between freight cars standing across the full width of a road, as in Skinner v. Penna. Rd. Co., 127 Ohio St., 69, 186 N. E., 722, and a wire on or above the highway. It is those objects that come between the extremes that present the factual question whether or not they are discernible.

The Kadlec case, supra, is worthy of careful reading. It abounds with common sense and appreciation of the practical operation of automobiles on highways. So much of it is germane to this ease that it could be impractical to quote from it. The court defined assured clear distance ahead in the same terms as our Supreme Court but, as does our court, recognized that there are legal excuses for failure to observe the requirements of the statute. Four of such excuses are set out, three of which are applicable here, (1) anything that would make it impossible to.comply with the statute, (2) anything over which the driver has no control which places his car in a-position contrary to the provisions of the statute, and (3) where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.

(Decided June 15, 1949.)

In our judgment, there was an issue properly presented to the jury whether plaintiff’s driver presented a legal excuse for the failure to observe the assured-clear-distance-ahead statute. The jury resolved this issue in favor of the plaintiff, a conclusion which is supported by the record.

The judgment is affirmed.

Judgment affirmed.

Wiseman, J., concurs.

Miller, P: J., not concurring.

On- Motion to certify record.

By the Court.

This cause is submitted on motion to certify the record in this case to the Supreme Court on the ground that the judgment in the instant case is in conflict with the judgment in Buddenberg v. Kavanaugh, 17 Ohio App., 252, Court of Appeals for Cuyahoga county. The syllabus of the Buddenberg case holds:

“1. It is the duty of a driver of an automobile to stop his car when for any reason he cannot see where he is going.

‘ ‘ 2. Where a petition recites that plaintiff was blinded by the lights of an approaching machine so as to be unable to see the street ahead of him, and that while so driving he collided with another machine negligently left in the street, the contributory negligence of the plaintiff is apparent and there is nothing to submit to the jury.”

The facts in that case were that the plaintiff did not si op his motor vehicle but changed its course and thereupon the accident occurred. There was no finding that the plaintiff was making any attempt to stop as was developed in the instant case. Manifestly, there is a period between the time when a person prepares to stop and the moment when the car comes to rest. It was the claim here that it was during the period of time that the car was being brought to a complete stop that the accident occurred.

We are also referred to Becker v. Dayton Power & Light Co., 56 Ohio App., 140, 10 N. E. (2d), 36, wherein the opinion was by a member of this court. In the Becker case the object with which the plaintiff came in contact was an electric wire pole which was not in the street but on the pavement thereof which was not separated from the street by a curb. We determined that under the physical facts appearing there was no issue as to the discernibility of the pole, the object which was struck. In the instant case we are of opinion that there was such an issue.

The motion is denied.

Motion denied.

Hornbeck and Wiseman, JJ., concur.

Miller, P. J., dissents.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    O'Leary, Exr., Appellee, v. Burnett, Appellant.
    (No. 2040
    Decided March 2, 1949.)

      Mr. Paul H. Blum, for appellee.

      Messrs. Jacobson S Burst and Mr. Eugene B. Bacher, for appellant.
   By the Court.

This cause is submitted on motion of plaintiff-appellee to dismiss the appeal on questions of law and fact; also on motion of plaintiff-appellee to strike from the files the answer brief of defendant-appellant.

The point is made that this is not a chancery case. In his petition the plaintiff alleges that the defendant orally agreed to pay plaintiff 5 per cent of the gross sale price, at least $500 each calendar year, on all motors manufactured and sold by the defendant for plaintiff’s decedent; that the defendant agreed to use the trade name, “Rotor,” on all products which incorporated the motor; that defendant manufactured and sold motors in large quantities; that the defendant failed to use the trade name, “Rotor,” as agreed; and that the defendant made certain payments but refused to make further payments and has refused the plaintiff an accounting. The plaintiff prays for judgment against defendant in the amount of $50,000 as damages for failing to use the trade name, for an accounting of all motors sold and for a judgment in an additional amount of money as may be disclosed by such accounting to be due.

The defendant filed an answer in the nature of a genera] denial and set up the statute of frauds and statute of limitations.

The character of the action must be determined by the pleadings and the issues presented therein. Whether the action is one at law or in chancery is determined by the primary relief sought. There is no allegation showing, and it is not contended, that a fiduciary or trust relation existed between the parties. It appears that the relation was that of debtor and creditor. The action is essentially one at law for the recovery of money only. The primary relief sought is legal and the equitable redress is merely incidental.

An action for the recovery of money only is an ac-lion at law, and where no fiduciary or trust relation existed between the parties, such action will not be converted into an action in chancery on the ground that plaintiff has no knowledge as to the true amount due and requests an accounting to determine such amount. In support of this principle of law the following authorities are cited: In re Estate of Stafford, 146 Ohio St., 253, 261, 65 N. E. (2d), 701; Nordin v. Coulton, 142 Ohio St., 277, 51 N. E. (2d), 717; Complete Building Show Co. v. Albertson, 99 Ohio St., 11, 121 N. E., 817; Chapman v. Lee, 45 Ohio St., 356, 13 N. E., 736; Relief Assn., Union Works, Carnegie Steel Co., v. Equitable Life Assur. Soc. of the United States, 63 Ohio App., 91, 95, 25 N. E. (2d), 352; Fitzgerald v. Cleveland Cadillac Co., 17 Ohio App., 12, 15; Bonnell v. B. & T. Metals Co., 52 Ohio Law Abs., 1.

The motion to dismiss the appeal on questions of law and fact will be sustained. The case will be retained as an appeal on questions of law. An order will be made respecting the filing of a bill of exceptions, assignment of error and brief in conformity to the provisions of Supplement to Rule VTI of the Courts of Appeals.

The defendant-appellant failed to file answer brief within ten days after receipt of motion and supporting brief as required by Supplement to Rule III of the Courts of Appeals. The record shows that defendant-appellant’s answer brief was filed 18 days thereafter but contained no acknowledgment that a copy had been given to opposing counsel as required by Supplement to Rule III. This rule serves a salutary purpose and was adopted by the court to expedite the disposition of preliminary motions and demurrers. It must be observed that there is no penalty, provided for failure to comply with the rule such as is found in Rule VII. The rule provides that when the ten-day period has expired the motion or demurrer together with the briefs which are then on file shall be transmitted by the clerk to the court for disposition. In practice, counsel who fails to file an answer brief in time may be penalized by Ms own delay in presenting Ms brief to the court before a disposition is made of the matter.

The motion to strike is overruled.

Motion overruled.

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


text:
    O’Leary, Exr., Appellee, v. Burnett et al., Appellants.
    (No. 2040
    Decided July 16, 1949.)

      Mr. Paul FI. Blum, for appellee.

      Messrs. Jacobson S Durst and Mr. Eugene B. Backer, for appellants.
   By the Court.

This cause is submitted on motion to strike tbe bill of exceptions from tbe files and to dismiss tbe appeal for tbe reason that tbe bill of exceptions was not filed witbin tbe time provided by law and former order of tbis court.

Tbe record shows that on March 15, 1949, tbe appeal on questions of law and fact was dismissed and the appeal retained on questions of law. Tbe court ordered that defendant-appellants be permitted to file their bill of exceptions witbin 30 days from tbe date tbe entry was journalized. Tbe bill of exceptions was filed in tbe trial court within tbe 30-day period, to wit, on April 11, 1949. Witbin ten days after the bill of exceptions was settled in tbe trial court, it was filed in tbis court in compliance with tbe provisions of Supplement to Rule VII of tbe Courts of Appeals. Thus it appears that tbe former order and rule of court have been complied with, and that tbe motion is not well taken.

Moreover, the appeal may not be dismissed on tbe ground that there is no bill of exceptions on file where it appears that a bill of exceptions would not be required to exemplify all tbe errors assigned.

Motion overruled.

Miller, P. J., 'Hornreck and Wiseman, JJ., concur.


author: Matthews, J.

text:
    Armstrong, Appellee, v. Feldhaus, Sr., Appellant.

      (No. 7190
    Decided January 10, 1950.)

      Messrs. Paxton & Seasongood, Mr. Robert H. Hinds and Mr. J. Griffin Murphey, Jr., for appellee.

      Mr. Charles K. Pulse and Mr. Vernon W. McDaniel, for appellant.
   Matthews, J.

The defendant owned a farm of 204 acres. He made an arrangement with the plaintiff, whereby the latter was to conduct the activities thereon for an indefinite period. The plaintiff was to furnish all machinery and labor and each was to furnish one-half of the seed, and they were to share equally the yield of crops and animals. Fifty acres of corn and fifty acres of wheat were to be planted. The defendant prepared a written agreement containing these and other terms, and both parties signed it. It provided that “all profits should be shared equally.”

The plaintiff took possession and proceeded to operate the farm. As they proceeded, they verbally agreed as to many of the details. The season was late and the corn planting was not completed till the middle of June. The plaintiff says 48 acres were planted.

The writing provided that if “they became dissatisfied, he is to give 120 days notice.” About six months after the date of the contract the plaintiff verbally notified the defendant that he wanted to end the relation. About two months thereafter, they reached a settlement of all matters, according to the plaintiff. By this settlement, the only unfinished business between them was the gathering and division of the 48 acres of corn, which, at that time, had not fully matured. The plaintiff was to pay the cost of gathering it, and this was to be done for him by a new tenant, obtained by the defendant, who took possession of the farm on the day the plaintiff vacated. It was this corn that formed the principal subject of dispute between these parties.

The plaintiff alleged in his petition that under the agreement made when he vacated the farm, each of the parties was to have one-half of the corn after it had been harvested by the new tenant, but he alleged that the new tenant failed to harvest it, and that when he,, the plaintiff, discovered that the new tenant was allowing the harvesting time to go by without doing so,, he went to the defendant about the matter and the-defendant told him it was none of his concern and refused to allow the plaintiff to go upon the farm for the purpose of harvesting the corn.

The plaintiff alleged further that the defendant harvested a small part of the corn and fed it to his andi the new tenant’s stock and allowed the remainder to remain in the field unharvested during the winter and only salvaged a small part of it the following spring, and “that in effect the defendant converted the same to his own use. ’ ’

The plaintiff alleged also that his one-half of the corn was reasonably worth $3,000; that, if permitted,, he could have harvested the entire crop for $240; that he had been damaged in the sum of $2,760, with interest; and that as the defendant’s conduct had been intentional and malicious, punitive damages in the sum, of $2,000 should be awarded. He prayed for judgment accordingly.

The defendant answered, setting forth his version which was that the plaintiff abandoned the farm while the corn was growing, without giving the notice required by the contract, and that the defendant, “in order to save himself loss, was required to contract with a third party to operate said farm.” In his amended answer, he cross-petitioned for damages caused by plaintiff’s alleged failure to harvest a part of the hay on the farm.

(1) At the trial the court concluded that the plaintiff’s action was in tort for conversion of the corn and the case was presented on that theory by the plaintiff, against the defendant’s contention that the action was ex contractu.

The court properly charged the jury on the measure of compensatory damages, whether the action be regarded as ex delicto or ex contractu, and then told the jury it could add to that in the event it found for plaintiff, and also that “if that wrongful taking was maliciously done, or, in other words, done in a wanton and reckless manner,” it could assess punitive damages.

The jury returned a verdict for $4,980.80, which was the full amount prayed for with interest. The court overruled defendant’s motion for judgment notwithstanding the verdict, but granted his motion for a new trial. Upon the plaintiff’s motion to set aside the order granting a new trial and for a reconsideration of defendant’s motion for a new trial, the court made an order setting aside the order granting a new trial and, upon reconsideration of the motion for a new trial, found the verdict excessive to the extent of $2,900, and, upon the plaintiff accepting a remittitur in that sum, overruled the motion for a new trial and entered judgment in the sum of $2,080.80. All this occurred at the same term of court, and so, while the court still had power to correct its journal in the exercise of a sound discretion. We do not find any abuse of discretion in this case.

As the jury found for the full amount of the plaintiff’s prayer, it is manifest it found that his actual damage was $2,760, with interest, and as the court reduced the verdict to $2,080.80, it is manifest that the judgment is for less than the compensatory damage suffered by the plaintiff, as found by the jury. However, the court in ordering a remittitur did not indicate what items were being eliminated and we have no way of knowing in what respect the court found the verdict to be excessive.

Many errors are assigned, but most of them stem from the defendant’s contention that the plaintiff’s action was for breach of contract and that in any event it was not the kind of case in which the awarding of punitive damages is allowable.

The plaintiff made no attempt in his petition to classify his cause of action, and the law did not require him to do so. Even if he had done so and made a mistake, he would not have been bound thereby. In 31 Ohio Jurisprudence, 573 and 574, Section 37, it is said:

“Undoubtedly a pleading should proceed upon some definite theory, but generally speaking the theory is not required to be stated in the pleading except as it is disclosed by the facts themselves. Moreover, under the Code, although the pleader may be mistaken in Ms theory, — in what he conceives the nature of his cause of action to be, — he nevertheless is entitled to relief if the facts alleged show Mm to be entitled to relief of a different nature than that which he asked for.”

The important thing is the allegations of fact. The litigant is entitled to the relief which the facts justify, regardless of Ms theory of Ms case. However, if it should be necessary to find a theory in the petition, we think an analysis of the allegations justifies the conclusion that the pleader’s theory was that it was an action ex delicto for conversion. To be sure, there were averments of the terms of a contract hut the effect of all the allegations was to disclose that the plaintiff was the owner of a one-half interest in a field of corn standing on defendant’s land, title to which corn he could get only by the permission of the defendant, and that although there may have been an implied license to enter, it wa,s revocable at defendant’s will and he, defendant, refused to allow the plaintiff to exercise the license and took advantage of his ownership of the land to exclude the plaintiff and appropriate in part and waste the balance of the plaintiff’s corn.

Forms of action were abolished by the Code of Civil Procedure. It may be that prior thereto the plaintiff could have sued in either contract or tort, but whether in one or the other, the measure of his compensatory damage would have been the same.

In Ketcham v. Miller, 104 Ohio St., 372, 136 N. E., 145, the court held that punitive damages were not recoverable in an action for breach of contract. The allegations in the amended petition in that case rather clearly disclosed that the pleader’s intent was to state a cause of action for breach of contract. There was no express prayer for punitive damages. In the case .at bar, the allegations are that the original contract had been performed, and the rights of the parties adjusted, leaving the plaintiff the owner of a one-half interest in this corn, which the defendant made it impossible for the plaintiff to harvest by refusing bim access to it — and the plaintiff expressly prayed for punitive damages. If it is necessary to psycho-analyze the pleader, we find, as best wo can, that his intent was to charge the defendant with the commission of a wrong or tort.

The question is whether the facts justified the awarding of punitive damages, should the jury conclude to do so.

While there is a great conflict in the authorities as to the soundness of the doctrine of allowing punitive damages in any civil action, Ohio is committed to the rule that in certain cases involving fraud, malice, insult, or wanton, or reckless disregard of the legal rights of others, the awarding of such damages is permissible. In Saberton v. Greenwald, 146 Ohio St., 414, 66 N. E. (2d), 224, it is said in the second paragraph of the syllabus:

“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. (Roberts v. Mason, 10 Ohio St., 277, approved and followed.) ”

And, at page 425:

“Punitive damages also are recoverable .in many causes of actions eoo delicto where the defendant’s conduct shows a wanton or reckless disregard of the legal rights of others, even where the gist of the cause of action is negligence.”

Again, at page 426 :

“Where the acts constituting a breach of contract also amount to a cause of action in tort, there may be a recovery of exemplary damages upon proper allegations and proof. As sometimes stated, exemplary damages are recoverable for a tort committed in connection with, but independently of, the breach of contract, where the essentials of an award of such damages are otherwise present, the allowance of such damages being for the tort and not for the breach of contract. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse, or gross negligence which amounts to an independent tort.”

In 53 American Jurisprudence, 895, Section 104, the author says:

“Many courts recognize that exemplary or punitive damages, which in most jurisdictions are recoverable in tort actions involving ingredients of malice, fraud, or wanton and reckless disregard <of the plaintiff’s rights, in addition to compensatory damages for the injury done, are properly recoverable in an action for the conversion of personal property, or, at least, recognize the propriety of submitting the question of the award of such damages in such action to the jury. This result has been reached where the act of the defendant was accompanied with fraud, ill will, recklessness, wantonness, oppressiveness, wilful disregard of the plaintiff’s rights, or other circumstances tending to aggravate the injury.”

In addition to Ketcham v. Miller, supra, the defendant relies upon Stockyard Bank v. Seal, 27 Ohio App., 179, 161 N. E., 35, and Harrison v. Spitz, 16 C. C. (N. S.), 493, 31 C. D., 660. We find nothing in either of those cases inconsistent with our conclusion that the plaintiff alleged a cause of action for conversion and that punitive damages are recoverable in such an action.

So we conclude that the court did not err in its instructions to the jury on the subject of damages, including punitive damages.

However, if we are wrong about this, there are other rules of appellate review that restrain us from predicating a reversal on this ground, and one is that every reasonable presumption must be indulged in favor of the validity and regularity of the judgment under review, and that only prejudicial errors clearly appearing upon the record will be considered.

As already noted, this verdict was for the full amount. It included $2,000 — no more and no less— as a penalty, and the rest was compensatory damage. The court granted a remittitur of $2,900, without indicating whether it found the punitive damages unjustified as a matter of law and the compensatory damages excessive to the extent of $900, or whether there was some other basis for the reduction. In this situation under the rule just stated, if it should be necessary to sustain this judgment, this court would presume that the court intended to remit the punitive damages entirely and to remit $900 from the amount of the compensatory damages found by the jury. That would leave only the question of whether there was any error in the manner of the submission of the issues relating to the actual damages and whether the evidence of actual damage supports the judgment.

In 3 American Jurisprudence, 685 and 686, Section 1176, it is said:

“When a case has been fully and carefully tried, and the only errors found on appeal require the plaintiff’s recovery of punitive damages to be disallowed, substantial justice demands that the plaintiff should be given an opportunity to accept the reduced verdict, in lieu of reversal on account of errors in instructions on the question of punitive damages.”

For these reasons, we find no reversible error in the judgment in relation to the original inclusion of a penalty as an allowable element of damage.

(2) The defendant assigns as error the refusal of the court to. give a special charge, to the effect that there was no evidence of intentional and malicious wrongdoing and, therefore, punitive damages should not be considered. We are of the opinion that there was evidence of intentional and malicious wrong and, therefore, the court was justified in refusing to give the special charge. Furthermore, from what has already been said, it can be seen that whatever prejudice would otherwise have resulted has been removed by the remittitur.

(3) The next assignment of error is that the court erred in refusing to give a special charge that if the jury found the plaintiff abandoned the farm, in violation of the written agreement, it should find for the defendant. We think the court properly refused to give this charge, for the reason that there was no substantial evidence upon which to predicate it.

(4) Many other assignments of error raise in one form or another the questions whether the cause of action is ex contractu or ex delicto, and whether the issue of punitive damages should have been submitted to the jury. We believe that what we have said sufficiently indicates our reasons for our conclusion that no prejudicial error was committed by the court in these respects.

(5) The remaining question is whether the evidence of actual damage is sufficient to sustain the judgment.

The plaintiff prayed for $2,760 as compensatory damages, with interest. The jury awarded him $2,980.80 compensatory damages, which was the full amount prayed for with interest. The judgment is for $2,080.80. There was abundant evidence that the plaintiff’s one-half of the corn had a net worth of more than the amount of the judgment.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Hildebrant, J.

text:
    Readnour, Appellee, v. Cincinnati Street Railway Co., Appellant.
    (No. 7181
    Decided January 10, 1950.)

      Messrs. Peterman, Calhoun & McPherson, for appellee.

      Mr. Leo J. Brumleve, Jr., for appellant.
   Hildebrant, J.

This appeal on questions of law is taken hy the defendant from an adverse verdict and judgment for damages for personal injuries received in a collision between plaintiff’s automobile and a streetcar of the defendant.

The first error assigned is as to the general charge.

One of the specifications of negligence in the petition is that defendant operated its streetcar at a rate of speed greater than was reasonable and proper under the circumstances and in violation of the state law and of Section 506-8 of the Ordinances of the city of Oincinnati, which ordinance was pleaded and proven.

One of the questions for the jury was whether the collision occurred in a business district, where the prima facie lawful speed limit contained in the ordinance was 25 miles per hour, or in a residential district, where the prima facie lawful speed limit was 35 miles per hour.

It, therefore, appears that the duty of the jury was to determine what was a reasonable and proper speed under the circumstances under complete instructions of the court, including instructions as to what speeds were prima facie lawful or unlawful in both the business and residential zones, as fixed by the ordinance.

Pertinent parts of the general charge of 'the court are:

“No person shall operate a motor vehicle, trackless trolley or streetcar in and upon the streets and highways at a speed greater or less than is reasonable and proper, having due regard to the traffic, ^surface and width of the street or highway and of any other conditions then existing.”

“Now then, with-respect to speed, the statute continues : it shall be prima facie lawful for the operator of such an instrumentality to operate the same at a speed not exceeding the following: 35 miles per hour on highways within municipalities outside of business districts; 25 miles per hour in other portions of a municipal corporation. It shall be prima facie unlawful for any person to exceed any of the speed limitations in this or other sections of this act.

“Now you are going to have to determine ladies and gentlemen of the jury as another issue — and incidentally too, a necessary issue in this case — the question of whether or not this particular section of Erie avenue in the city of Cincinnati within those two blocks as shown by the evidence, is a business district or whether it is a residence district because if it is a residence district, then the prima facie limitation in this section is 35 miles per hour and if it is a business district, the prima facie speed limitation is 25 miles per hour as set forth in this section. The question of whether this is a business or residence district is in dispute in this case. You must decide from the evidence under the rules which I have given you what district these particular blocks are in determining whether or not there was a violation of this statute with respect to the speed at which motor vehicles or streetcars should be operated upon the highways.”

“Now in determining whether he was or was not operating at a speed which was greater than was reasonable and proper under the circumstances in the case as set forth in the statute, you are to be guided by this provision, the prima facie rule. If it was a residence district, you would find that it was a residence district, then if he was going over 35 miles per hour or more, then that would be prima facie evidence, but only prima facie evidence of a speed that was greater than was reasonable and proper. If it was a business district and he was going 25 miles an hour or more, then that would be prima facie evidence of the fact, but only prima facie evidence of a speed that was greater than was reasonable and proper.

“Prima facie evidence of a fact is such as, standing alone, proves the fact and is conclusive of that fact unless rebutted and explained by other evidence. Therefore if you find that the automobile, or that the streetcar — where I said several times I may have said automobile, I am referring to the streetcar operated by the motorman of the defendant company — therefore if you find that the streetcar of the defendant company was being operated as I have stated to you 35 miles an hour or more, if that is a residence district or 25 miles an hour or more if that is a business district, such fact affords only prima facie evidence of a rate of speed that is greater than is reasonable and proper under the circumstances; such fact becomes conclusive unless met by evidence of equal or countervailing force. ’ ’

It will be noted on reading the above otherwise excellent charge, the court has included a correct charge on the subject of prima facie lawful and unlawful speeds, as set forth in the ordinance and also included in the italicized portions of the charge an incorrect statement of the principle of law involved on the same subject matter. A correct statement also appears further on in the charge.

Where the court states both a correct rule and also an incorrect rule with reference to the same subject matter in a charge, our Supreme Court has said in Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, 62 N. E. (2d), 305, in the fifth paragraph of the syllabus :

‘ ‘ Generally, where, in instructing the jury, the court states a correct rule or principle of law and also states an incorrect rule or principle of law with reference to the same subject matter, no presumption arises that thé correct rule was applied by the jury in the consideration of the issue presented, and the error in giving the incorrect rule will be deemed prejudicial.”

And at page 550, it is stated:

‘ ‘ The charge of the court in other respects was complete and commendable, and the correct rule as to conduct and liability was stated elsewhere in the general charge. However, it is well settled in this state that where the trial court in one part of the instructions stated a correct principle of law and in another part with reference to the same subject matter stated an incorrect rule, or in different parts of its charge stated rules and principles contradictory of or inconsistent with each other, or gave more than one rule for determining the rights of a party, it cannot be presumed that the jurors were able to determine which of the conflicting declarations of the law by the court was the correct one, or the one that they should have followed, or that they ignored or disregarded the erroneous instructions given, and selected and applied the correct rule. 39 Ohio Jurisprudence, 929, Section 254; Montanari v. Haworth, 108 Ohio St., 8, 140 N. E., 319; Marcoguiseppe v. State, 114 Ohio St., 299, 151 N. E., 182; and Industrial Commission v. Ripke, 129 Ohio St., 649, 196 N. E., 640.”

The sixth paragraph of the syllabus in Westropp v. E. W. Scripps Co., 148 Ohio St., 365, 74 N. E. (2d), 340, holds:

“Where in instructing the jury the court stated a correct rule or principle of law and also stated a prejudicially incorrect rule or principle of law with reference to the same subject matter, no presumption arises that the correct rule was applied by the jury in the consideration of the issue presented, and the error in giving the incorrect rule will be deemed prejudicial. (Paragraph five of the syllabus in the case of Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, approved and followed.)”

This court recently applied the rule in Cohen v. Goodman, 85 Ohio App., 85, 87 N. E. (2d), 370. The rule on conflicting and contradictory instructions is further stated in the text of 39 Ohio Jurisprudence, 928, Section 254.

Apparently, conceding error in the criticized portions of the general charge — plaintiff contends it is so slight as to be only a trifle, hence, not to be noticed by this court as being within the maxim “de minimis non curat lex.” We deem that maxim, that the law does not concern itself with trifles, refers to the subject matter of causes which the courts will notice and has no application in attempting to measure the degree or quantity of error in a charge to a jury.

By charging the prima facie lawful speeds as being unlawful, if those words may be considered to be diametrically opposed in meaning — the charge may be said to be completely wrong. Further, plaintiff, in his answering brief, quotes the motorman as testifying that the streetcar was going 25 miles per hour. If the jury considered the point of collision as being in other than a residential area of the city, it might well consider that evidence as an admission of a violation of the ordinance, in which case the error would clearly appear prejudicial.

Plaintiff further contends that the two-issue rule applies to the several specifications of negligence so as to relieve against the error in the charge if it exists. They cite Schmidt v. Kinney, 19 Ohio Law Abs., 269, decided May 6, 1935, and the recent case of Knaff v. N. Y. Central Rd. Co., 55 Ohio Law Abs., 193, 86 N. E. (2d), 814, decided May 9, 1949, both by the Second District Court of Appeals, wherein that court applied the two-issue rule to different, specifications of negligence. In neither case, however, does that court make any reference to the case of H. E. Culbertson Co. v. Warden, 123 Ohio St., 297, 175 N. E., 205, wherein the second paragraph of the syllabus is:

“The rule declared in Sites v. Haverstick, 23 Ohio St., 626, has no application to specifications of negligence, separately stated and numbered, but which in fact constitute a single negligent act resulting in a single loss and damage.”

And, at page 302, the court said:

“It is true that the petition alleged five specifications of negligence, which were separately stated and numbered: (1) Failure to place lights upon the plank; (2) permitting and suffering the plank to be placed where it was dangerous to travel; (3) negligence in failing to remove the plank; (4) failing to construct the poles, gates, and guards so that persons using the highway would be informed of its dangerous condition; (5) failing to employ a watchman to warn the public of the existence of the obstruction.

“The majority of the Court of Appeals therefore adopted and applied the well-known rule which originated in Sites v. Haverstick, 23 Ohio St., 626, and which has been followed in numerous subsequent cases. This rule as generally applied is that, where there are two causes of action or two defenses, thereby raising separate and distinct issues, and a general verdict has been returned, and the mental processes of the jury have not been tested by special interrogatories to indicate which of the issues was resolved in favor of the successful party, it will be presumed that all issues were so determined; and that, where a single determinative issue has been tried free from error, error in presenting another issue will be disregarded.

“This rule has prevailed for approximately sixty years in all the courts of review of this state, and, while it has not met with universal favor, it has nevertheless been a settled rule, and in proper cases universally applied. It is not deemed expedient to further extend the operation of the rule, and the majority of this court are not willing to apply the rule where only a single cause of action for negligence is pleaded, involving a single damage, and therefore a single recovery, though there may be more than one specification of negligence.

“In the instant case, a careful examination of the five specifications of negligence discloses that, though they are separately stated and numbered, they constitute but a single specification of negligence. They might all have been stated in a single sentence by reciting that the defendants constructed poles and attached thereto an unlighted and unguarded plank which obstructed a portion of the traveled highway. It was evidently the theory of the majority of the Court of Appeals that the failure to guard by lights or watchman was an act of negligence separate and distinct from the existence of the plank. In this view we do not concur. There was but a single issue of negligence, and the error in the court’s charge upon Sections 7472 and 13421, General Code, was prejudicial.”

The petition herein alleges defendant was negligent in the manner in which it operated its streetcar and then specifies six derelictions of duty. Our view is that but a single cause of action for negligence is stated, involving a single damage, for which there can be but one recovery, and, therefore, the two-issue rule cannot apply, as held in the Culbertson case, supra. In so holding, we seem to be in direct conflict with the cited holdings of the Second District Court of Appeals, and this case is, therefore, certified to the Supreme Court of Ohio, for decision of that conflict.

This court is aware of the protracted history of litigation in this case and of the court’s duty in according a presumption of validity to all judgments under review, so that litigation may not be unduly extended without substantial reason, but for‘the reasons stated above we feel bound to decide, in conformity with the Supreme Court cases cited, that the apparently inadvertent erroneous language in the charge constitutes prejudicial error.

We find no other error in the record prejudicial to the defendant.

The instant judgment is therefore reversed and the cause remanded for further proceedings.

Judgment reversed.

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


text:
    Welge, Appellee, v. Welge, Appellant.
    (No. 7213
    Decided January 30, 1950.)

      Mr. Harry Falk, for appellee.
    ■ Mr. John A. Thorburn, for appellant.
   By the Court.

This is an appeal from a judgment granting a divorce to the plaintiff and awarding alimony.

The answer of the defendant contains a general denial, which includes a denial of the jurisdictional fact that the plaintiff had been a resident of the state for one year and of the county for 30 days immediately preceding the filing of the petition. The decree contains a finding of the existence of the jurisdictional facts, but the bill of exceptions, certified to as containing all the evidence, shows no evidence on the subject of residence. The judgment must be reversed for lack of proof of the jurisdictional facts.

The ground of divorce alleged is gross neglect of duty, and that was the ground upon which the divorce was granted.

The bill of exceptions shows that the hearing was very brief. It required only four double-spaced typewritten pages to record it. We do not criticize brevity per se, but a reading of these four pages discloses a complete inadequacy of proof. Only the barest outline of their domestic relation was given by the parties' themselves. The statute (Section 11988, General Code) precludes the granting of divorce or alimony upon the testimony of the parties alone, even when it is full and clear and nonconflicting. In this case the meager testimony of the parties was conflicting and there was no corroboration by any other witness of any of the essential elements of gross neglect of duty.

But it is said that another ground for divorce was proven, to wit, wilful absence for three years. It is true that the record shows that these two parties had not lived together for fifteen years, but whether the defendant’s absence was wilful, or with the consent of, or caused by plaintiff’s misconduct had no corroboration from any other witness. Without intimating that the court would have jurisdiction to allow, by amendment, the substitution of one ground for divorce for another in a case where the proof of the unpleaded ground was proven, we could not allow such a substitution here for the reason stated.

It was said in oral argument that the court had before it a report of an investigation made under the provisions of Section 11979-4, G-eneral Code. The investigation provided for by that section covers character, family relations, past conduct, earning ability, and financial worth of the parties. The section does not in express terms authorize an investigation of the jurisdictional facts. Perhaps that omission was for the reason that all courts require, on their own motion, that their jurisdiction be made to appear before proceeding to hear the cause.

But in the case at bar, we are precluded from assuming the existence of such a report. It could have been considered as evidence only if it had been “filed in the case before trial.” The transcript of the docket and journal entries shows the. filing of no such report, and it is not found among the original papers in the case. The bill of exceptions does not show it was offered in evidence. There is no cross-examination of the person making the report, and, as the certificate recites that it contains all the evidence, we must assume that the report was not offered in evidence, and, therefore, the court could not consider it.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


text:
    Welge, Appellee, v. Welge, Appellant.
    (No. 7213
    Decided March 13, 1950.)

      Mr. John A. Thorburn, for appellee.

      Mr. Barry Falk, for appellant.
   By the Court.

In its opinion (Welge v. Welge, ante, 93) this court stated that “the bill of exceptions, certified to as containing all the evidence, shows no evidence on the subject of residence.” (Emphasis added.)

The action was for divorce, and, under the statute, the court should have rendered judgment for the defendant, in the absence of some substantial evidence showing statutory residence of the plaintiff. This court ordered a new trial. Is the defendant entitled here to final judgment?

■ It has long been the rule of reviewing courts that action or inaction of a trial court cannot first be assigned as error in such reviewing courts. In other words, the trial court must be given the opportunity of avoiding error by having the claimed error brought to the attention of the court. 2 Ohio Jurisprudence, “Appellate Review” (Pt. I), 296, Section 150; Id., 311, Section 155.

The divorce case was submitted by the parties at the conclusion of the evidence, without comment, and the trial court’s attention was not directly called to the dearth of evidence upon the issue of domicile.

The problem presented by this motion is what action should the defendant have taken to raise this assignment of error in the trial court?

Obviously, under the practice applicable, the action having been filed after September 27, 1947, no motion non obstante veredicto could be filed after the judgment, even if such motion were appropriate in a trial to the court without a jury. Section 11599-1, General Code, effective September 27,1947. Also, it is obvious under such circumstances that a motion for an instructed verdict would have been inappropriate, there being no jury to so instruct.

What would have been the effect of a motion for judgment? Would not such motion under the circumstances have been mere surplusage, if not also wholly inappropriate, in view of the fact that upon final submission of the case by the parties at the conclusion of the evidence, both parties were claiming the right to a judgment?

It is true that by such submission, the weight of the evidence is involved, but certainly under the state of the record at that time, the defendant was also entitled to judgment by reason of the absence of any evidence upon an essential element of the case of the plaintiff.

Is the defendant, at his peril, bound to indicate to the court then that he is by submission of the case relying on both grounds — no evidence and the weight of the evidence? Again, how would he do this?

In Euclid Arcade Building Co. v. H. A. Stahl Co., 99 Ohio St., 47, it is held that a motion for judgment at the close of plaintiff’s evidence in a trial to the court without a jury raises the question of the weight of the evidence, as well as the question of the absence of any evidence. In the opinion at page 49, it is stated:

‘ ‘ The trial of a law case to the court without the intervention of a jury is tantamount to the trial of a chancery case. If the plaintiff at the close of his ease has offered no evidence upon a material fact required to be proved, or has offered evidence of such a character as to overwhelm any prima facie case made by him, common sense would require that at the instance of the defendant the litigation should be then terminated. There is no presumption that later in the trial the defendant would offer more substantial evidence in the plaintiff’s favor than plaintiff himself offered.”

Does not this same situation exist at the close of the case? A motion for judgment would, therefore, raise no issue of law or fact not raised by mere submission of the case to the trier of the facts and law.

In McKellips v. Industrial Commission, 145 Ohio St., 79, 60 N. E. (2d), 667, a case was tried to the court without a jury — no motion of any kind was made at the conclusion of the evidence. In the per curiam opinion, at page 80, it is stated:

“An examination of the record herein shows that no motion for a directed verdict or for nonsuit was made by the defendant after all the evidence had been introduced. By such failure to move for a directed verdict, which would challenge the legal sufficiency on the entire evidence adduced, the defendant submitted the issues to the trial court as a question of fact. ‘Without such challenge the whole case goes to the jury.’ Cincinnati Traction Co. v. Durack, Admx., 78 Ohio St., 243, 85 N. E., 38.

“Unless a motion for a directed verdict is renewed at the close of all the evidence, error cannot be predicated upon the refusal of the court to direct a verdict.

“Upon appeal to the Court of Appeals, the issue presented was simply whether the judgment of the trial court was sustained by sufficient evidence. The defendant was not entitled to a judgment in its favor based on the legal insufficiency of the evidence, since he had made no such challenge by appropriate motion. This court, in the case of Whitaker, Admr., v. Michigan Mutual Life Ins. Co., 77 Ohio St., 518, 83 N. E., 899, paragraph two of the syllabus, held:

“ ‘Although a party against whom a verdict is returned and a judgment is rendered in the Court of Common Pleas may have been entitled to an instruction to the jury to return a verdict in his favor, he is not, on that account, entitled to a final judgment in his favor in a reviewing court unless upon the trial he has requested that such instruction be given.’

“The Court of Appeals found the judgment not to be ‘against the weight of the evidence.’ This court does not weigh the evidence. It follows, therefore, the judgment of the Court of Appeals should be and is hereby affirmed.”

References to the cases cited by the court show that in those cases a jury was actually employed. Under such circumstances the trier of the facts (the jury) is not the trier of mere issues of law.

It is true that Section 11421-3, G-eneral Code, provides :

‘ ‘ So far as in their nature applicable, the provisions of this chapter respecting trials by jury, apply to trials by the court. ’ ’

However, it is apparent that an entirely different situation prevails in a jury case from that existing in a case tried only to the court. Where a jury is employed, the court, on motion, may deprive the jury of the right to pass upon the facts because the issue of law (the existence of any substantial evidence) is decided by the judge alone. Would any motion, therefore, split the judge into a trier of facts and law? It may be presumed that the judge is able to determine both the issues of law and fact and, if there is no evidence, will predicate his judgment upon the absence of proof. The record shows no evidence, and it may be presumed also that the judge when considering the evidence presented becomes aware of such absence of proof and enters his judgment accordingly.

It has been repeatedly held that where it appears that by reason of absence of proof the trial court should have rendered a judgment and has failed to do so, the Court of Appeals is required to enter the judgment which the trial court should have rendered. Leighton v. Hower Corp., 149 Ohio St., 72, 77 N. E. (2d), 600; Greyhound Lines, Inc., v. Martin, 127 Ohio St., 499, 189 N. E., 244; Majoros v. Cleveland Inter. Rd. Co., 127 Ohio St., 255, 187 N. E., 857. However, in each of these cases, and especially in McKellips v. Industrial Commission, 145 Ohio St., 79, 60 N. E. (2d), 667, it is apparent that the absence of evidence as a ground for nonsuit was called to the attention of the trial court, by a motion for instructed verdict at the conclusion of all the evidence, a motion for judgment based upon a failure of the plaintiff to sustain an element of the plaintiff’s case or a motion non obstante veredicto.

Regardless of what has been said, therefore, herein it seems clear that under our present practice before final judgment may be entered in this court by reason of a total failure of proof of an essential element of plaintiff’s case, the trial court must be given an opportunity to enter such judgment upon the dearth of proof being called to the attention of the court, and the record must show that the parties took appropriate action to permit such action by the trial court.

It would seem the appropriate motion should be made before submission, and that a motion for non-suit would be proper in a case tried to the court without a jury.

No motion of any kind having been made before submission by the defendant in the instant case, this court feels bound to follow the rule sustained by the authorities noted and cannot, therefore, now, in the state of the record here, enter final judgment.

It is suggested the rule does not apply where the court lacks jurisdiction to enter judgment. This is, however, not the same as lacking jurisdiction over the subject matter or the person of the defendant, ab initio. See 2 Ohio Jurisprudence, “Appellate Review” (Pt. I), 309, Section 154, supra.

The Court of Common Pleas had jurisdiction over divorce, the subject matter of the instant action now considered. It had jurisdiction over the person of the defendant. Failure to establish residence merely required the court to enter judgment for the defendant. The absence of proof appearing at the conclusion of the case upon submission could not relate back and render the court unable to entertain the action. The question, therefore, presented is one of proof and evidence, not jurisdiction over either the subject matter of the action or jurisdiction over the person of the defendant.

The judgment was voidable, not void, and a motion by the defendant of some sort was required, as hereinbefore indicated, to call the attention of the trial court to the defect in proof.

The motion of the defendant for final judgment, therefore, must be denied.

Motion denied.

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


author: Hornbeck, J. Wiseman, J.,

text:
    The State, ex rel. Clark, v. Allaman et al.
    (No. 2082
    Decided January 20, 1950.)

      Mr. A. W. Schulman, for relatrix.

      Mr. Mathias R. Heck, prosecuting attorney, and Mr. Herbert M. Jacobson, for respondents.
   Hornbeck, J.

This is a proceeding in habeas corpus instituted originally in this court by Betty Clark to have restored to her the custody of her child which is now in the custody of the respondent Allaman, superintendent of the Montgomery County Detention Home, under order of the Juvenile Court of Montgomery County.

The matter is submitted to this court on an agreed and a supplemental statement of facts which show that the child in question was born out of wedlock on the 27th day of March, 1949; that the father of the child is unknown; that after the birth of the child the mother, Betty Clark, the petitioner herein, and the child resided in the home of Mr. and Mrs. Arthur Brendel, Dayton, Ohio; that on April 21, 1949, the Brendels filed a petition in the Probate Court of Montgomery County, for adoption of the child; that the mother gave her consent in writing to such adoption; and that on August 12, 1949, a hearing was held in the Probate Court on the petition for adoption and at that time the Brendels, through their counsel, withdrew their petition for adoption and thereupon the court made the following order, which was journalized:

“The court finds that the petitioners herein desire to withdraw' their petition for this adoption.

“Therefore, it is hereby ordered that said petition be withdrawn and that this cause be dismissed. It is further ordered that this cause be certified to the Montgomery County Juvenile Court for appropriate action and disposition as provided by Section 10512-21 of the G-eneral Code of Ohio.”

The facts further show that certification was made to the Juvenile Court of Montgomery County.

On August 18,1949, a preliminary hearing was held in the Juvenile Court and on that date the court ordered the child removed from the home of the Brendels and placed in a licensed foster home. On September 12, 1949, a second hearing was held in the Juvenile Court, at which time the court found that the child was a dependent child and that it would be for the best interests of the child that the mother be deprived of its custody temporarily; “that by journal entry, the temporary care and custody of said child was given to the Catholic Charities of Dayton, Ohio, and said child at the request of the Catholic Charities is now in the control of Richard Allaman, superintendent of the Montgomery County Detention Home,” a respondent herein; “that all of said proceedings in the Juvenile Court was taken over the protest and without the consent of the relatrix.” “No charge as against the relatrix concerning the dependency of said child has been made in the Juvenile Court and that the Juvenile Court assumed jurisdiction over said child solely by virtue of the order of the Probate Court * * * certifying said cause under the provisions of Section 10512-21, General Code.”

There are certain salient facts that should be noted at the outset of this case.

The respondents rely entirely upon the proposition that the Juvenile Court had jurisdiction to commit the child for dependency on the certification of the Probate Court.

The probate judge made no interlocutory order of adoption, or otherwise, affecting the custody of the child.

The custody and right of custody was, at all times prior to certification, in the mother, the petitioner.

There were two hearings respecting the child. The first on August 18, 1949, the second on September 12, 1949. The commitment complained of was made at the second hearing. At no time was there any complaint filed charging the child to be a dependent child or1 any other form of complaint originating in the Juvenile Court.

The respondent holds the child upon a commitment predicated on an adjudication “that said child is a dependent child” and for that reason it is for the best interests of the child that its parent be deprived of its custody temporarily. The temporary aspect of the order does not affect the question presented because the adjudication of dependency has been made, which, if proper, will support permanent as well as temporary commitment.

The court will modify its temporary order only upon change of circumstances as to which, if the application be made by the mother, the burden will be upon her. Upon a charge of dependency, the burden is upon the state.

Did the Juvenile Court have jurisdiction to make the order upon which the commitment to respondents rests? We think it did not, for two reasons.

The first is that there was no proper basis for the certification from the Probate Court to the Juvenile Court under Section 10512-21, General Code, which, so far as applicable, provides:

“If for any reason whatsoever the petition shall be dismissed * * *, the following disposition shall be made of the child: (a) * * *. (b) Otherwise the cause shall be certified to the juvenile court * * (Emphasis ours.)

The entry reads:

“The court finds that the petitioners herein desire to withdraw their petition for this adoption.

“Therefore, it is hereby ordered that said petition be withdrawn and that this cause be dismissed. * * *”

The petition was not dismissed but was withdrawn by the petitioners. The court did not act on the petition and at the time of the certification there was nothing pending' and no “cause” upon which the certification could be based.

In the position we take, we are not relying on the technical difference between “-withdrawal” and “dismissal” and realize that those terms may be used synonymously, and under certain situations a party has the right to dismiss a cause of action.

It is probable upon consideration of the adoption code that the dismissal of the petition mentioned in Section 10512-21 (b), General Code, is intended to be made by the court after some adjudication on the adoption proceeding. Section 10512-18 and .Section 10512-20, General Code, each provides for a full hearing and defines the orders that may be made at its conclusion. Section 10512-21, General Code, which follows immediately, should be read in the light of the preceding sections.

The petition for adoption, which is brought into the record by a supplemental stipulation of facts, recites that “said child is living in the home of the petitioners” (which was also the home of the mother) “and is in the permanent custody of Betty Marie Clark, natural mother and sole parent of the child sought to be adopted,” etc.

The withdrawal of the petition was in effect the same as if done the day after it was filed. What reason was there for a certification to the Juvenile Court? Two of the best citizens of Dayton decide to begin an adoption proceeding involving a child of one of them and the parent files consent, but before any order is made respecting the adoption these parties for reasons satisfactory to themselves decide to withdraw all proceedings, to which the court consents. Is it contemplated by the adoption statutes that in such a situation the child must first be certified to Juvenile Court, a hearing had affecting its custody and an adjudication made thereon before the parent may have the custody of his own child? We do not believe that certification is contemplated or proper in such situation.

Our second reason, and of more consequence than the first, assumes the regularity and validity of the certification from the Probate Court to the Juvenile Court.

The commitment is grounded upon an adjudication that the minor is a dependent child. If that is made without jurisdiction the commitment is void. The finding as to the best interest of the child is not an independent but a dependent conclusion based upon the primary and essential adjudication of the dependency. The Juvenile Court did not have jurisdiction to determine that the minor was a dependent child because its jurisdiction was not properly invoked to make such an adjudication.

The statute under which the certification was made provides that if the petition be dismissed “(b) * * * the cause shall be certified to the Juvenile Court * * * for appropriate action and disposition by such court.”

What then was appropriate action of the Juvenile Court as to what disposition should be made?

The jurisdiction of the Juvenile Court is not fixed, defined, or enlarged by this certification statute but is conferred by the Juvenile Court Act. Section 1639-16 (d), General Code, provides:

“The court shall have jurisdiction to hear and determine the case of any child duly certified to the court according to law by any court of competent jurisdiction, and to make disposition of said child in accordance with the provisions of this chapter.''’ (Emphasis ours.)

The chapter referred to is .the Juvenile Court Act. In the act are defined delinquent child, neglected child, dependent child and crippled or otherwise physically handicapped child, and the court is given exclusive jurisdiction concerning such children.

It is stipulated that the court assumed jurisdiction over the child solely by virtue of the certification from the Probate Court and without any complaint charging that it was a dependent child.

Section 1639-23, General Code, provides that jurisdiction of the court shall be invoked by the filing of a sworn complaint that the child is dependent, etc. Section 1639-24, General Code, requires that a citation shall be given to parents, reciting the substance of the complaint, etc. The citation which was issued must have been based on the certification. No citation in compliance with this section could have been made upon the petitioner for the obvious reason that no complaint had been filed. Section 1639-24 further provides that after such citation if it appears “that the child is in such conditions or surroundings that his welfare requires that his custody be immediately assumed by the court * * the court may order that the child be taken into custody at once. Apparently the custody was assumed by the court on the first hearing but no complaint had then, or later, been filed.

It should be noted that the record shows no order of the Probate Court in the adoption proceeding (Section 10512-18, General Code) affecting the custody of the child, and though it had been living with those who sought to adopt it, as was its mother, this did not affect the right of the mother to its custody until some such order had been made or until the state, by some appropriate proceeding, had intervened. Rarey v. Schmidt, 115 Ohio St., 518, 154 N. E., 914. No such proceeding was followed, but the court, without complaint filed and over the protestations of the mother, conducted a hearing, adjudicated the infant to be a dependent child and awarded custody to another than the parent. This procedure is not contemplated in any situation wherein the dependency of a child is to be adjudicated.

We recognize that the acts of minors, or their parents, defined in the Juvenile Court Act and of which the judges of that court are given jurisdiction, are not to be classified as criminal but are so related that there is analogy between the procedure in both classes of cases.

“The juvenile court has just such jurisdiction as is conferred upon it by statute.” 24 Ohio Jurisprudence, 561, Section 17.

They are “courts of special jurisdiction over delinquent and neglected children, their jurisdiction being limited by the terms of the constitutional or statutory provisions under which they are created. ’ ’ 43 Corpus Juris Secundum, 53, Section 6. “And” (their) “jurisdiction must be strictly construed, and cannot be enlarged by a provision in the statute requiring the statute to be liberally construed, so that its purposes may be carried out.” 43 Corpus Juris Secundum, 54, Section 6.

Jurisdiction must be determined from the charge against a defendant and until it is lodged with the court it has no jurisdiction of the person or the subject matter. 14 American Jurisprudence, 918, Section 215; 22 Corpus Juris Secundum, 235, Section 143. Jurisdiction of parties may be determined by consent but jurisdiction of the subject matter is always fixed by law. 12 Ohio Jurisprudence, 103, Section 59. Jurisdiction of one charged with an offense before courts of limited jurisdiction can be acquired only by filing an affidavit or requisite complaint. 12 Ohio Jurisprudence, 102, Section 59. In an annotation to Sinquefield v. Valentine (159 Miss., 144, 132 So., 81), 76 A. L. R., 247, it is concluded:

“It has been uniformly held in cases based on statute and principle, that a parent cannot be deprived of the custody of a child in commitment proceedings, without notice and an opportunity to be heard.” Authorities from fifteen states, including Ohio, are cited.

That a complaint is a prerequisite to the jurisdiction of the Juvenile Court to adjudge a minor to be a dependent child is decided, inferentially, at least, in Rarey v. Schmidt, supra, paragraph two of the syllabus. It holds that, with certain exceptions, not applicable here, a parent whose residence is known must be served with a citation of the pendency of the complaint before the Juvenile Court has jurisdiction to declare a child of the parent to be dependent. In the opinion, at page 521, Judge Robinson says:

“While the section [Section 1648, General Code] as a whole is inartfully drawn, it quite definitely appears that before the jurisdiction of the court to deal with the child attaches one of three classes of persons —the parent, the guardian, or the person having custody of the child — shall have legal notice of the pendency of the complaint.”

See, also, Ex parte Province, 127 Ohio St., 333, 188 N. E., 550; Lewis v. Reed, 117 Ohio St., 152, 157 N. E., 897; In re Corey, 145 Ohio St., 413, 61 N. E. (2d), 889; In re Hobson, 44 Ohio Law Abs., 86, 62 N. E. (2d), 510,

The filing of a complaint charging the dependency of the child was the sine qua non to the jurisdiction of the Juvenile Court to adjudicate as to such dependency. Without such complaint and notice to the mother of the charge therein set forth she was denied her basic right to defend against the claim.

There is at least one other section of the Code, Section 1639-29, providing for certification of certain criminal cases to the Juvenile Court. That section provides analogy to and requires differentiation from Section 10512-21 (b). But where certification is made in criminal cases there has been already filed a complaint setting out in due form a charge of an offense and the statute provides that after certification the Juvenile Court shall thenceforth have exclusive jurisdiction which ‘ ‘ shall be deemed to be upon a complaint filed in such court as fully as if the appearance of such' child had been upon a complaint filed in and a citation or warrant of arrest originally issued out of and by such court.”

When citation is made under this section all jurisdictional steps have been taken in the originating court. This is also true as to cases ■ certified under Section 8034-1, General Code, and the paragraph (c) of Section 1639-16, General Code. In the instant case no claim was, or could have been, made in the adoption proceeding that the child was a dependent child. ,

It is true that in State, ex rel. Sparto, v. Williams, ante, —86 N. E. (2d), 501, we said that certain jurisdiction was conferred upon the Juvenile Court to determine custody of a child by the certification made by the Probate Court in an adoption proceeding. We said too much and a close reading of the section authorizing the certification is convincing that it does not ex vi termini confer the jurisdiction exercised here. Nor was the language just adverted to necessary to the adjudication because admittedly, when the court acted it had before it an affidavit in which it was •charged that the minor was a neglected child.

We do not discuss Paddock v. Ripley, 149 Ohio St., 539, 80 N. E. (2d), 129, because, if the syllabus is given full effect, it does not reach our question. Here there is a purported finding that the infant is a dependent child, which was not found in the cited case. The invalidity of the judgment, we consider, is further back in the proceeding in that there is no foundation upon which the adjudication can rest. We do not agree that the syllabus of Paddock v. Ripley is but a reiteration of obiter dictum in the opinion. It responds to a vital issue urged and litigated in the Supreme Court.

The Juvenile Court being without jurisdiction to make the finding and adjudication that the minor was a dependent child, the custodial order predicated on such judgment by which the child is how held is ineffective. The custody of the child is ordered restored to petitioner.

Custody restored.

Miller, P. J., concurs in the judgment.

Wiseman, J.,

dissenting. I regret that I cannot concur with the conclusion of the majority of this court. This dissenting opinion, which is of some length, is written in the belief that a statement as to the other view of the law applicable to the issues presented may be helpful.

The sole question for determination is whether the Juvenile Court had jurisdiction to determine the question of custody of the child. If the Juvenile Court had jurisdiction habeas corpus does not lie.

I cannot agree with the majority that there was no proper basis for the certification of the cause to the Juvenile Court under Section 10512-21, General Code. What was the legal effect of the withdrawal of the petition and the dismissal of the action for adoption? Section 11586, General Code, controls the disposition of an action after it is instituted. This section in part provides:

“An action may be dismissed without prejudice to a future action:

“1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court * *

The Code of Civil Procedure makes no provision for voluntary withdrawal of an action by a plaintiff. Under the Code the legal effect of a voluntary withdrawal of an action is a voluntary dismissal of the action. Siegfried v. New York, Lake Erie & Western Rd. Co., 50 Ohio St., 294, 297, 34 N. E., 331.

We recognize the general rule that when an action is dismissed the court is without jurisdiction to make any further order. Schaffer v. Schaffer, 114 Ohio St., 309, 151 N. E., 186. However, the general rule is subject to the power of the Legislature to confer jurisdiction on the court to act after dismissal of the action. Certainly the Legislature has the power to grant authority to the court dismissing the action to certify such cause to another court. In the instant case the Probate Court had authority, after the dismissal of the petition for adoption, to certify the cause to the Juvenile Court under Section 10512-21, General Code.

In the majority opinion the point is made that there was no cause pending upon which the certification could be based. Under Section 10512-21, General Code, it is not intended that a pending matter be certified to the Juvenile Court. The certification of the record in the Probate Court, when filed in the Juvenile Court, effectually opens up a custody case in the Juvenile Court. However, the record in the Probate Court does show on its face that the question of the custody of the child was not determined. The situation presented is this: The record, on its face, shows that there was an illegal placement of the child in the •home of the petitioners. The record fails to show a compliance with the provisions of Section 1352-13, General Code. The mother had given her consent in writing to the adoption. For some reason the adoption proceeding was dismissed and the child continued to reside in the home of the petitioners who obviously were not the parents of the child. The Probate Court did not have jurisdiction to determine the question of custody of the child; the question of custody had to be determined by a court of competent jurisdiction. In the opinion of the probate and juvenile judges of this state the situation which is presented here occurred so often and was of such seriousness that legislation providing for a procedure certifying the cause to the Juvenile Court and conferring jurisdiction on the Juvenile Court to hear and determine the matter of custody was proposed and enacted. See 1949 Supplement to Addams and Hosford, Ohio Probate Practice and Procedure, page 95.

It is immaterial whether the adoption proceeding is dismissed before or after a hearing on the merits. The provisions of Section 10512-21, General Code, are sufficiently comprehensive to embrace actions dismissed before a hearing as well as after a hearing has been had.

In the majority opinion it is stated that the custody of the child was, at all times prior to certification, in the mother and that there was no reason for the certification under the facts stated. While it is true permanent custody was in the mother, the child resided in the home of the Brendels with whom it was placed by the mother for adoption. Residence of the child in the home of the petitioners is required, otherwise the petitioners cannot proceed with the adoption. See Sections 10512-11, 10512-12 and 10512-18, General Code. It will be observed that under the first order of the Juvenile Court the child was removed from the Brendel home and placed in a licensed boarding home. The record does not show where the mother resided at the time the case was certified to the Juvenile Court. The majority opinion infers that certification may be proper in certain cases and under certain conditions and not proper in other cases. There are no exceptions in Section 10512-21, General Code, and its provisions are mandatory.

The majority opinion states that, assuming the legality and validity of the certification from the Probate Court, the commitment by the J uvenile Court was grounded upon an adjudication that the minor was a dependent child and that the Juvenile Court was without jurisdiction to make the order. The point is made that before a minor can be found to be a dependent child, a complaint of dependency must first be filed. With this abstract principle I agree. However, the proceeding instituted in the Juvenile Court was not a dependency proceeding. The recital in the order of commitment that the child was dependent did not convert the proceeding into a dependency proceeding and the record need not show a compliance with the legal requirements of a dependency proceeding. The child cannot be said to be a dependent child within the meaning of the Juvenile Court Code. The order of the Juvenile Court, in depriving the mother of the custody of her child, is not given validity by reason of the recital in the order that the minor was a dependent child. This statement neither adds to nor detracts from the legal effect of the order which, in my opinion, was a valid order based upon other grounds.

Did the Juvenile Court have jurisdiction to make the order? The jurisdiction to determine the question of custody of a child in a matter certified under Section 10512-21, General Code, is clearly conferred on the Juvenile Court under Section 1639-16, paragraph (d), General Code, which provides:

“The court shall have jurisdiction to hear and determine the case of any child duly certified to the court according to law by any court of competent jurisdiction,” etc.

This provision was proposed by the probate and juvenile judges of the state and enacted by the Legislature for the purpose of conferring jurisdiction on the Juvenile Court to determine the custody of a child after the matter had been certified by a court of competent jurisdiction. It was meant to cover a situation such as is presented in the instant case. Unquestionably the Legislature has the power to confer jurisdiction on the Juvenile Court in a custody case which is instituted by the filing of a certification from the Probate Court when a petition for adoption is dismissed as provided in Section 10512-21, General Code. The moment the certification of the record is filed in the Juvenile Court, that court is immediately aware that it has a custody case before it. Upon a certification duly made by the Probate Court, what further jurisdictional step was required to authorize the Juvenile Court to hear and determine the question of custody? Jurisdiction having already been acquired under paragraph {cl) of Section 1639-16, General Code, no further jurisdictional step was required. Furthermore, the Legislature did not provide that any other jurisdictional step should be taken. After service of citation on the mother the court had the authority to proceed and determine the issue.

Paragraph {d) of Section 1639-16, General Code, confers jurisdiction on the Juvenile Court to hear and determine the case of any child certified to it and “to make disposition of said child in accordance with the provisions of this chapter.” This last provision does not refer to the jurisdiction of the court, but rather to the procedure to he followed in the exercise of the jurisdiction conferred. We need not look beyond the provisions of Section 1639-16, General Code, to find complete authority to determine the question of custody. The applicable part of that section is as follows:

“(a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code: * * *

“2. To determine the custody of any child not a ward of another court.”

The power to hear and determine the question of custody of a child includes the power to deprive one person of the custody and award it to another. The best interests of the child must always be the guide to be used by the Juvenile Court in determining questions of custody. In the instant case the Juvenile Court made a finding that it was for the best interests of the child that the mother be deprived of its custody, temporarily. In making the order the court used a blank form which required certain inapplicable provisions to be stricken; some inapplicable provisions were not stricken. While the order is not artfully drawn, it is nevertheless a valid order.

In the majority opinion great stress is laid on the fact that the court found the minor to be dependent. However, these words could have been omitted without affecting the validity of the order. When the court found that, it was for the best interests of the child that its parent be deprived of its care and custody, temporarily, the court had made an order which was legally sufficient and valid. This was the determinative and controlling finding on the issue presented. The reason assigned by the court for the finding and order is immaterial. 23 Ohio Jurisprudence, 817, Section 512. The court may have assigned any one of a number of reasons for its finding, to wit: That the child was neglected, delinquent, crippled or otherwise physically handicapped, that the mother was incompetent or any other good and valid reason. A “dependent child” is defined in Section 1639-4, (General Code, which provides that a dependent child includes any child who is homeless or destitute or without proper care or support, through no fault of its parents; who lacks proper care or support by reason of the mental or physical condition of its parents; or whose condition or environment is such as to warrant the state, in the interest of the child, to assume its guardianship. Let us assume that the evidence presented to the J uvenile Court in the instant case would have justified a finding that the child lacked proper care or support by reason of the mental or physical condition of its parents. Could it then he successfully contended that such recital in the order of the court would vitiate the whole proceeding, oust the jurisdiction of the court, and render null and void an otherwise valid judgment? The only order which the Juvenile Court could make in the instant case was whether the best interests of the child required the court, to deprive the mother of its care and custody. The court, made this finding and incorporated it in its order. The judgment of the court can be sustained on this ground. A judgment of a court having jurisdiction of the subject matter and the parties is not null and void by reason of the fact that the court which rendered it. based it on erroneous grounds, if it can be supported on some valid ground. 23 Ohio Jurisprudence, 814, Section 511, 816, Section 512 (cases cited).

Assuming the Juvenile Court had jurisdiction and conceding that in the exercise of such jurisdiction the Juvenile Court made an unwarranted or erroneous order, which I do not concede, the jurisdiction of the court would not be ousted and such error could be taken advantage of only on appeal. Habeas corpus would not lie. In re Burson, 152 Ohio St., 375, 383, 89 N. E. (2d), 651.

The petitioner cites the case of Paddock v. Ripley, 149 Ohio St., 539, 80 N. E. (2d), 129, in support of the contention that the Juvenile Court lacks jurisdiction to proceed to determine the custody of the child or make any order, temporary or permanent, until and unless an affidavit is filed charging the child to be a delinquent, neglected or dependent child. The statement in the Paddock case, supra, which appears in the opinion of the Court on page 541, that “Under the Juvenile Court Code, such courts have jurisdiction only of delinquent, neglected or dependent children,” is purely obiter dictum. In so holding did the Supreme Court intend to exclude from the jurisdiction of the Juvenile Court hearings in all matters involving children other than delinquent, neglected or dependent children? We do not think so. While it is true the Supreme Court, in its opinion did refer to Section 1639-16, General Code, which is the general section conferring jurisdiction on the Juvenile Court, it mentioned only delinquent, neglected or dependent children. It failed to take into consideration that under Section 1639-16, General Code, jurisdiction is also conferred respecting crippled or otherwise physically handicapped children; also, “to determine the custody of any child not a ward of another court,” and “to determine the paternity of any child alleged to have been born out of wedlock.” If the Juvenile Court has jurisdiction only over delinquent, neglected or dependent children, then the Juvenile Court may not exercise jurisdiction over children in matters in which jurisdiction is conferred specifically by other sections of the Code. Reference is made to Sections 1352-8, 1639-29, 8034-1, 11181-1 and 10512-16, General Code.

The factual situation presented in the case at bar was not presented to the Supreme Court in the Paddock case, supra. In that case the Juvenile Court had not intervened by making an order respecting the custody of the child; the jurisdiction of the Juvenile Court was not directly involved. Since the announcement of the opinion in the Paddock case, the Juvenile Courts of this state have continued to exercise jurisdiction, and rightly so, in many matters involving children who are neither delinquent, neglected or dependent.. If a complaint charging a child to be delinquent, neglected or dependent is a prerequisite to the exercise of jurisdiction by the Juvenile Court in such cases, then the provisions for certification under Section 10512-21, General Code, and paragraph (d) of Section 1639-16, General Code, are meaningless for the reason that such complaint in the proper case could have been filed before the enactment of these provisions. It was to avoid the necessity of filing such complaints in the proper cases, and the impropriety of doing so in others, in case the adoption was uot granted, that these provisions were enacted. It is a source of satisfaction to know that not all children sought to be adopted are delinquent, neglected or dependent. Such complaints could not be properly filed in all cases where adoption petitions are dismissed. The Legislature recognized this situation in the enactment of Section 10512-21 and paragraph (d) of Section 1639-16, General Code.

In my opinion, jurisdiction is clearly conferred on the Juvenile Court to determine the custody of the child in question and the filing of a complaint charging the child to be a delinquent, neglected or dependent child was not a necessary prerequisite to the exercise of such jurisdiction.


text:
    Hinsman, Appellee, v. Uthoff, Appellant.
    (No. 21553
    Decided December 5, 1949.)

      Messrs. Schaefer & Schaefer, for appellee.

      Messrs. Frank, Gering & Gering, for appellant.
   By the Court.

In Case No. 429875 in the Court of Common Fleas of Cuyahoga County a judgment in favor of the Superintendent of Banks was rendered against Gilbert Uthoff in sum of $990.12, and judgment in the same amount was rendered against Ruth R. Hinsman. The judgments were predicated upon their respective liabilities under the provision of -Section 710-75, General Code (115 Ohio Laws, 126), as then in effect as stockholders of an insolvent bank. There is a recital in the judgment entry in that cause: ‘ ‘ That as to the judgments rendered against Gilbert Uthoff and Ruth R. Hinsman, the said Gilbert Uthoff is as between himself and the said Rnth R. Hinsman the principal, and Ruth R. Hinsman, the surety.”

It will be noted that separate judgments in the same amount were rendered against Uthoff and Hinsman, and that it is prescribed in the judgment entry that it is as to them, and not as between them and the Superintendent of Banks, that the relationship of principal and surety exists.

Under the provisions of Section 710-75, General Code (115 Ohio Laws, 126), in effect at the time the judgment was rendered, Hinsman was liable upon the claim for which the judgments were rendered for such an amount as Uthoff failed to meet on such liability.

Separate judgments having been rendered for such liability, payment by Uthoff of the entire amount owing on such liability was the only manner or method by which Hinsman could be relieved of liability..

The court had jurisdiction of the subject matter and the parties in the action in which the judgments were rendered, so it is immaterial whether the court had authority to render separate judgments, as above set. forth, as error proceedings were not prosecuted from the judgments.

Under the judgments as rendered, the Superintendent. of Banks had authority to enter satisfaction of, and release and discharge either of the separate judgments without releasing or discharging the other, either in terms or by operation of law. The only duty imposed upon the superintendent in such a case was to allow credit on the liability to the extent of the payment made for the release and discharge of such judgment.

This judgment fixed the rights of the parties thereto.

Rutli R. Hinsman was not a party to the compromise agreement thereafter entered info between Gilbert Uthoff and the Superintendent of Banks and such agreement does not purport to and did not have the effect of releasing Ruth R. Hinsman from the operation of the judgment or of changing in any way the relationship of principal and surety existing between Uthoff and her as to the judgment. The written instrument of satisfaction of judgment executed pursuant to the compromise agreement and entered upon the journal of the Common Pleas Court in case No. 429875 does not purport to and does not release Ruth R. Hinsman from the operation of the judgment or in any manner affect the relationship of Uthoff and her as principal and surety to the judgment as prescribed therein.

Such instrument of satisfaction of judgment contains a provision: ‘ ‘ That this satisfaction shall not in any way be considered as waiving, releasing or affecting the liability of any person or persons arising out of the ownership of the stock which is the subject matter of the action.”

This provision had the effect of preserving in every respect the judgment against Ruth R. Hinsman which she was thereafter compelled to pay in her capacity as surety to Uthoff as principal.

Having paid said judgment in her capacity as surety, Ruth R. Hinsman is entitled to reimbursement as prayed for in her petition.

For the reasons mentioned the judgment of Common Pleas Court is affirmed.

Judgment affirmed.

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

Guernsey, P. J., and Middleton, J., of the Third Appellate District, and Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.