author: Fess, J.

text:
    Casanova, Appellee, v. Wagner, Appellant.
    (No. 619
    Decided April 11, 1949.)

      Messrs. Catri é Catri, for appellee.

      Messrs. Flynn, Py & Kruse and Mr. B. G. Zeiher, for appellant.
   Fess, J.

This is an appeal on questions of law from a judgment entered on a verdict in the sum of $7,500 against the defendant.

Plaintiff was a passenger in an automobile traveling in a westerly direction on Monroe street in San-dusky, Ohio. When the ear in which she was riding in the rear seat reached a point immediately under a traffic light with approximately one-half of the car beyond the center line of the intersection of Monroe and Decatur streets, the ear was struck at the left rear by a northbound car operated by the defendant and thereafter crashed into a telephone pole at the northwest corner of the intersection, resulting in serious injury to the plaintiff.

Monroe street runs generally east and west and Decatur street runs north and south. Traffic at the intersection was controlled by the usual green, yellow and red signals. Plaintiff’s evidence tended to show that the car in which plaintiff was riding had the green light iu its favor until it reached the easterly crosswalk or until it reached a point directly under the traffic light in the center of the intersection. Defendant’s evidence tended to show that the car driven by the defendant had the green light as it proceeded in a northerly direction into the intersection on Decatur street.

The evidence further disclosed that, immediately before the accident, skid marks were left by defendant’s car on the east side of Decatur street, 17 feet in length and extending in a northwesterly direction from about a foot north of the southerly crosswalk of Monroe street to the point of impact a foot or so northeast of the center .of the intersection. Skid marks were also inf eren tially made by plaintiff’s car, running from the center of the intersection to a telephone pole with which such car collided at the northwest corner of the intersection.

Defendant’s car struck the left rear of the ear in which plaintiff was riding. Plaintiff’s car thereafter crashed into the telephone pole at the northwest corner of the intersection. Photographs disclose a substantial dent in the left-hand door and that the left rear fender was torn from the body. The right rear corner of plaintiff’s car was severely crushed in from top to bottom from colliding with the telephone pole. As a result, of the collision, the rear trunk door or lid was knocked off but the evidence is not clear as to whether this was caused by the impact of defendant’s car or by the collision with' the telephone pole. So far as speed is concerned, the evidence on behalf of each party was to the effect that each car was traveling between 20 and 25 miles per hour. The only evidence from which excessive speed on the part of the defendant might be inferred were the skid marks and the condition of the left side of plaintiff’s car.

One of the assigned errors is that the court refused to charge upon the subject of defendant’s right of way as requested after the genera] charge.

Plaintiff pleaded six allegations of negligence in her petition, and in his charge the judge submitted four of these:

(a) Driving against the red light contrary to an ordinance of Sandusky.

(b) Driving at a speed greater than was reasonable and proper.

(c) Failure to ascertain the presence and position of the automobile in which plaintiff was riding.

(d) Failure to exercise ca.re in season to avoid striking the automobile in which plaintiff was riding.

Two interrogatories submitted by plaintiff were answered by the jury:

“Do you find the defendant, Harold J. Wagner, was negligent? Answer: ‘Yes.’
“If your answer to interrogatory No. 1 is ‘yes’ please state of what such negligence consists. Answer: ‘Skidding proves speed was too great.’ ”

The finding that defendant’s speed was too great indicates that the jury found against the plaintiff upon the other allegations of negligence. Masters v. N. Y. C. Rd. Co., 147 Ohio St., 293, 70 N. E. (2d), 898. Since proceeding against the red light was one of the allegalions of negligence submitted to the jury, it is therefore presumed that the defendant had the green light. It may be also inferred that plaintiff’s driver ran the red light but this is immaterial, since contributory negligence of her driver cannot be imputed to plaintiff as a passenger.

During the trial, plaintiff introduced the following portion of section 57 of the Sandusky traffic ordinance:

“Section 57. Whenever traffic at an intersection is controlled by traffic control signals exhibiting colored lights or the word ‘go’ or ‘caution’ or ‘stop’, said lights and turns shall indicate as follows:
“Red or stop: Traffic facing signal, shall stop before entering the nearest crosswalk at the intersection, or at such other point as may be designated by the director and remain standing until green or go is shown alone.
“Red or caution: When shown alone or together with the green or go, traffic facing the signal shall stop before entering the nearest crosswalk, or designated line at the intersection.’'

In his general charge, the judge read the first two above-quoted paragraphs and said:

“The portions of section 57 of this particular ordinance which the court has read to the jury, mean just what they say. Applied to this case, they mean simply this, that if, as defendant proceeded in a northerly direction in and along Decatur street and approaching Monroe street, either red or caution shown alone or together with the ‘green’ or ‘go’ signal, then it was the duty of defendant, as he approached said intersection to stop before entering the nearest crosswalk— that would be the crosswalk on the south side of Monroe street.
“And further, that as he approached in a northerly direction along Decatur street, toward Monroe street, the color ‘red’ or the word ‘stop’ was exhibited by the traffic light, then it was the duty of the defendant to stop his automobile before entering the crosswalk on the south side of Monroe street, and not to proceed northerly until the green light was shown by such traffic signal.
“These portions of section 57 are expressive of a specific, mandatory and positive requirement, and it therefore follows that if, from a preponderance of the evidence in this case, the defendant violated the requirements of this ordinance, such proven violation would constitute negligence in and of itself, and you would be warranted in concluding that the defendant was guilty of negligence in such respect claimed by the plaintiff.
‘ ‘ On the other hand, it of course follows that if from all the evidence in the case, the defendant did not violate this portion of section 57, you would be compelled to conclude that defendant was not guilty of negligence as to this first claim made by the plaintiff.’’

The court then proceeded to charge upon the applicable portion of Section 6307-21, General Code, relating to speed, without any reference to the right or duty of a party entering an intersection having the green light. With respect to the remaining two claims of negligence, the court said in part:

“With respect to the nature, character and effectiveness of lookout maintained with respect to the stopping of his automobile and abating the speed thereof or diverting the course thereof, it was the duty of the defendant as to each and all of those particular matters to exercise that degree of care which a person of ordinary care and prudence is accustomed to exercise under circumstances the same or similar to those existing at the time and place in question.”

At the conclusion of the general charge, defendant requested the court to charge that “if the defendant was proceeding lawfully, with a green light, he had a right to proceed through the intersection until such time as it became apparent the driver of the car in which the plaintiff was riding was going to enter said intersection. ’ ’

Since no part of the city ordinance relating to green or go lights was introduced in evidence, Section 6307-13 (a), General Code, is applicable and reads in part as follows:

“ (a) Green alone or ‘go.' * * *
‘ ‘ 2. All other traffic facing the signal * * * may proceed straight through * * *. But such traffic shall yield the right of way to vehicles * * * lawfully within the intersection * * * at the time such signal is exhibited.”

Although there is no express statutory duty imposed upon the court to give instructions after the general charge, under the practice a party' has the right at the conclusion of the general charge to request instructions on any material issue not covered in charges previously given. Union Central Life Ins. Co. v. Hoyer, 66 Ohio St., 344, 64 N. E., 435; Cleveland Punch & Shear Works Co. v. Consumers Carbon Co., 75 Ohio St., 153, 169, 78 N. E., 1009. It was defendant’s contention, supported by evidence, that he was driving at a prima facie lawful speed and entered the intersection on the green light. It was plaintiff’s contention, supported by her evidence, that her car entered the intersection on the green light which changed to yellow as her car reached the center of the intersection, although the driver of her car stated the light changed from green to yellow when he reached the easterly crosswalk.

A person entering an intersection with a green light in his favor is subject to the provisions of Section 6307-21, General Code, with respect to speed, but the fact that he may have had the green light is an important element in determining whether he was negligent and also whether the proximate cause of a passenger’s injury was the negligence of the driver or that of another.

A requested instruction before argument must be in writing and must be literally correct in the form presented. But under the practice, requests for additional instructions after the general charge has been given may be made orally. Such a request is proper if it is sufficient to call the court’s attention to a material omission in the charge or charges previously given. It is error to refuse a requested instruction in a proper case. Whitaker, Admr., v. Michigan Mutual Life Ins. Co., 77 Ohio St., 518, 522, 83 N. E., 899. The request presented in the instant case may not have been literally correct, but it was sufficient to require the court to charge upon the subject requested.

We find no other error assigned prejudicial to defendant, but for refusal to charge on the subject requested, the judgment is reversed and the cause remanded for new trial.

.Judgment reversed and cause remanded.

Conn and Carpenter, concur.


source: Caselaw Access Project

author: Doyle, P. J. Stevens, J.,

license: Public Domain

text:
    Snodgrass, Appellant, v. Snodgrass, Appellee.
    (No. 3889
    Decided April 9, 1948.)

      Mr. Fred E. Renkert, for appellant.

      Mr. Don Isham, for appellee.
   Doyle, P. J.

This was an action for a declaratory judgment, filed in the Court of Common Pleas of Summit County, which sought a declaration of the marital status of Gladys Louise Snodgrass, the defendant therein. The action was instituted by Georgia Snodgrass, who, as contingent beneficiary in a policy of National Service life insurance on the life of her son, James L. Snodgrass, Jr., sought §uch declaration, to the end that the defendant be declared not the wife of the insured and therefore not entitled to take the proceeds of the policy as principal beneficiary.

The controlling facts before us in this appeal may be stated in chronological order as follows:

1. June 10, 1941. Gladys Louise Simovic (now Snodgrass) filed an action for divorce, alimony and custody of child against her husband, Andrew Simovic, in the Court of Common Pleas of Summit County.

2. June 10, 1941. Personal service of summons was made on the husband Simovic, and return made of the same.

3. June 23, 1941. Andrew Simovic appeared in court and was ordered by journal entry to pay alimony pendente lite.

4. September 15, 1941. The divorce action was tried by the court, and at the conclusion thereof the court orally pronounced a decree of divorce to the petitioning wife, ordered the husband to pay alimony, and awarded to the wife the custody of their child. There was made by the court the following notation on the envelope containing the papers in the case: “9/15/41. Case heard. See J. E.” This notation was signed by the trial judge.

A journal entry, however, was not filed for record.

5. June 10, 1942. Gladys Louise Simovic married James L. Snodgrass, Jr., a soldier in the army, by formal ceremony in the state of Kentucky.

6. December 18, 1942. The divorce action, filed on June 10, 1941, and heard and orally decided on September 15, 1941, was dismissed by the court. The journal entry of dismissal stated that the ease was dismissed under authority of Rule 13 (a) of the rules of the court. (Rule 13 [a] provided, inter alia, that the “decision’'' of the court may be “vacated and set aside” if counsel for the prevailing party has not presented to the judge a journal entry of the decree within the time therein specified.)

7. October 1, 1944. A National Service life insurance policy was issued upon the life of James L. Snodgrass, Jr., designating his wife, Gladys L. Snodgrass, as principal beneficiary, and Georgia Snodgrass, his mother, as contingent beneficiary.

8. November 6,1945. James L. Snodgrass, Jr., died while a soldier in the army, and at a time when the policy was in full force and effect.

9. February 2, 1946. Gladys (Simovic) Snodgrass filed a motion in the same Court of Common Pleas which had previously heard, orally decided, and later dismissed, her case, in which she sought an order of the court for the reinstating of the case, “and for permission to file a decree of divorce in accordance with the court’s finding of September 15, 1941.” In support thereof, she alleged that “the court directed that defendant immediately pay the costs of the divorce action, and that she was under the impression the defendant had complied with said order but now finds that her decree of divorce was not filed, and that the matter inadvertently was dismissed by the court by reason of defendant’s failure to pay the court costs.”

10. February 5, 1946. The court recorded a journal entry in the following terms: “On motion of plaintiff and for good cause shown, the defendant having been notified by registered mail of the filing of said motion, the court finds that said motion is well taken and hereby orders that the journal entry dismissing said cause be vacated and that this cause be reinstated, and hereby grants the plaintiff permission to file her decree of divorce in accordance with the decision and finding of the court made September 15, 1941.” (Italics ours.)

11. February 5, 1946. A short time subsequent to the filing of the above order for record, the court entered for record its judgment granting a divorce to the petitioner. It was ordered nunc pro tunc,, or retroactive to the date of the original decision — to wit, September 15, 1941.

The Court of Common Pleas, pursuant to a trial in which the above facts were before it, denied the prayer of the petitioner (the mother), who sought a declaration (1) “That * * * Gladys Louise Snodgrass was without legal capacity to enter into marriage with James L. Snodgrass, Jr., on June 10, 1942”; (2) “That the pretended marriage between said parties was a nullity and void ab initio under the laws of Ohio”; '(3) “That the defendant was at no time the lawful wife of James L. Snodgrass, Jr.”; and (4) “That the judgment and order entered by this court on February 5, 1946, * * * reinstating said cause and granting a decree of divorce to the defendant herein, shall not operate so as to validate the pretended marriage between the defendant herein and James L. Snodgrass, Jr.”

The appeal on questions of law, here under consideration, is from that judgment.

1. It is within the legitimate and familiar exercise of the power of the court to enter a judgment nunc pro tunc.

“2. The function of an entry nunc pro tunc is the correction of judicial records insofar as they fail to record, or improperly record, a judgment rendered by the court, as distinguished from the correction of an error in the judgment itself, or in the failure to render the judgment.” Caprita v. Caprita, 145 Ohio St., 5, 60 N. E. (2d), 483, 158 A. L. R., 1201.

And see, Herman v. Ohio Finance Co., 66 Ohio App., 164, 32 N. E. (2d), 28.

“One purpose of entering a judgment now for then is to supply a matter of evidence, and not to alter or create facts. If the court had failed to act, * * * the matter cannot be corrected by a judgment at a later term; but if it had acted, * * * but there was not made sufficiently formal evidence of the fact, the evidence may be made to conform to the truth as shown by record.” Hoffman v. Shuey, 223 Ky., 70, 2 S. W. (2d), 1049, 58 A. L. R., 842.

A judgment which has been entered nunc pro tunc and is offered in evidence in another or different action is presumed to have been entered regularly and upon competent and sufficient evidence, and if the court had jurisdiction it cannot be collaterally impeached for insufficiency of the evidence or error in its finding. 1 Freeman on Judgments (5th Ed.), Section 139.

It was the view of the trial court that the decree nunc pro tunc was “a proper and final order,” and for that reason the record was “unimpeachable by any collateral attack and * * * not subject to further review by means of any declaratory judgment or * * * other proceedings.”

With this conclusion the majority of this court agrees, in so far as the parties to the action are concerned.

In the case of Katanic v. Katanic—No. 3864, Court of Appeals for Summit County (decided by the Court of Appeals of the First District on November 4, 1947, and unreported; motion to certify record overruled by the Supreme Court on March 3, 1948) — it was determined that, under facts similar to those here existing, the court, in the furtherance of justice, could treat the entry of dismissal as a nullity and void ab initio,-and that inherent power reposed in the court to record an entry speaking the truth, effective as of the time of the first pronouncement of the court’s decision.

We determine that the divorce decree in the case under consideration cannot be, collaterally attacked in this proceeding, and is binding on all persons except third persons who have acquired rights without notice of the rendition of the decision of the court, which rights are adversely affected by the decree subsequently entered for record, effective as of the time of the first pronouncement of the decision.

2. In a decree nunc pro tunc, “Generally, such conditions will be imposed as may seem necessary to save the interests of third parties, who have acted bona fide and without notice; but if such conditions are not expressed in the order of the court, they are, nevertheless, to be considered as made a paid of it by force of the law. The public are not expected nor required to search in unusual places for evidences of judgments. They are bound to take notice of the regular records, but not of the existence and signification of memoranda made by the judge, and upon which the record may happen to be afterwards perfected. The expression so frequently made that a nunc pro tunc entry is not to affect the rights of third persons must not be understood as signifying that effect must be denied to such an entry in all cases where third, persons have acquired interests. Courts in determining whether or not to amend or perfect their records are controlled by considerations of equity. If one not a party to the action has, when without notice of the rendition of the judgment or of facts from which such notice must be imputed to him, advanced or paid money or property, or in other words, has become a purchaser or encumbrancer in good faith and upon a valuable consideration, then the subsequent entry of such judgment nunc pro time will not be allowed to prejudice him. Otherwise its effect against him is the same as if it had been entered at the proper time.” 1 Freeman on Judgments (5th Ed.), Section 138, and cases cited.

And see, Webb v. Western Reserve Bond & Share Co., 115 Ohio St., 247, and, at pp. 260-261, 153 N. E., 289, 48 A. L. R., 1176, comment on Coe v. Erb, 59 Ohio St., 259, 52 N. E., 640, 69 Am. St. Rep., 764.

Recognizing the text-book rule heretofore stated as sound in law, the question now arises whether the plaintiff in this action — a contingent beneficiary in a life insurance policy — comes within the class of persons who are entitled to protection against the retroactive effect of the decree nunc pro tunc.

It is argued that Gladys Louise Snodgrass, at the time of her marriage and at the date of maturity of the policy (death of the insured), was not the wife of the insured because she was a bigamist and that her marriage was void ab initio. The law of Kentucky (where the marriage in question took place), as well as the law of Ohio, renders a marriage between two persons, one of whom has a husband or wife living at the time of the marriage, void. Section 402.020, Kentucky Revised Statutes; Section 11181, General Code of Ohio. (Federal law required the beneficiaries in policies of the kind under consideration to bear a certain relationship to the insured, such as wife, mother, etc.)

It was for the purpose of affording justice to individuals that the policy of entering judgments and decrees nunc pro tunc was commenced. It has been exercised by courts of law and equity from the earliest times. It need not be argued that a wise and just procedure has made it possible to legitimate a questionable marital status which innocently came into existence; that as between the parties to the relationship and generally the world at large the order nunc pro tunc has legitimated from the beginning the status which the parties desired and thought they had.

The mother now claims as an innocent third party whose rights vested in the policy at the time of the death of her son. She claims as a contingent beneficiary because there was no “wife” to take. Certainly she paid neither money nor property for her contingent interest. She has not been injured or damaged as those terms are used in law, because her only position under any circumstance was that of a possible gratuitous beneficiary. If it be assumed that, under a strict interpretation of the law and the provision of the insurance policy, she should be given the proceeds of the policy because of the vesting of a right to such proceeds at the time of the death of her son prior to the entry of judgment nunc pro tunc, nevertheless a court of equity, if called upon later to declare a constructive trust for the benefit of the wife on the theory of unjust enrichment, would seem to be entirely justified in so doing. It is the conclusion of the majority of this court that the law would not require such a circuitous procedure in seeking justice.

Gladys Louise Snodgrass was the person intended by the now-dead soldier to receive primarily the benefits of his insurance policy. The law has permitted this intent to be fulfilled by an entry nunc pro tunc, “for good cause shown” and in the interest of justice.

The Supreme Court of Iowa had before it in 1943 a case similar in many respects to the case now here for decision. A marriage took place hi Iowa (1938) and several years later (May 8, 1941) the husband was killed in an accident arising out of and in the course of his employment. The wife filed with the Industrial Commissioner an application for arbitration against the employer and its insurance carrier. The mother of the killed workman intervened and alleged that the applicant was not the deceased’s surviving spouse and prayed that the workman’s compensation be awarded to her. It was admitted that the death was compensable, and the only issue was between the mother and her who claimed as wife.

The material and undisputed facts were that the claiming wife had been previously married and domiciled in Ohio, where she in 1935 petitioned the Knox County Court of Common Pleas for divorce; after personal service of summons on her then husband, she was, after trial, granted a divorce in the same year; the decree was not journalized; on June 10, 1941, approximately a month after the death of the insured, a mmc pro tuno entry was approved by the Ohio judge and entered for record; it ordered that the divorce decree be retroactive to 1935, the date of the original pronouncement. Opon these facts the court held:

“13. Where Ohio divorce decree of one claiming compensation as wife of deceased employee from her first husband obtained prior to her marriage to deceased employee was invalid because decree was not journalized as required by statute, ‘nunc pro tunc entry’ made by Ohio court after employee’s death rendered divorce decree effective as of date decree should have been journalized and entitled claimant to compensation as employee’s surviving spouse, as against contention that employee’s mother, who was asserting right to compensation on ground that employee’s wife was not legally married to employee, was an ‘innocent third person without notice’ who had acquired vested interests before nunc pro time entry was made which could not. be affected by entry thereof.” Hobson v. Dempsey Const. Co., 232 Iowa, 1226, 7 N. W. (2d), 896.

In addition to what has been stated heretofore, reference is made to the following statute of Ohio (Section 11604, General Code) :

“All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. The entry must be written into the journal as soon as the entry is filed with the clerk or directed by the court and shall be journalized as of the date of the filing of said entry or of the written direction by the court.”

It is the conclusion of a majority of this court that the petitioner’s interest does not come within the class of interests which may be asserted despite the retroactive order of the court, and that the trial court correctly held that the decree nunc pro tunc could not be collaterally attacked in this proceeding.

Judgment affirmed.

Hurd, J. (of the Eighth Appellate District, sitting by designation in place of Hitnsioker, J.), concurs.

Stevens, J.,

dissenting. I find myself unable to agree with the conclusion reached by my associates.

The facts as stated in the majority opinion are complete and accurate, except that Rule 13 (a) of the Court, of Common Pleas of Summit County is not therein fully set forth. That rule provides:

“The journal entries of all orders, judgments and decrees shall be furnished by counsel for the prevailing party and must be presented to the judge making such order, judgment or decree for his approval within seven days after the decision is announced unless further time is given. Upon failure to so present such journal entry, the decision may be vacated and set aside by such judge, or such judge, upon such failure, may enter the action ‘dismissed for want of prosecution’ * *

At the outset of the trial of this .action in the Court of Common Pleas, counsel agree that defendant objected to the introduction of any evidence under the petition, for the reason that such a proceeding constituted a collateral attack upon the nunc pro tunc judgment entered in the Simovic divorce case. The trial court reserved that question, and after hearing, held as stated in the majority opinion .

This appeal on questions of law followed.

While the rule announced by the trial court might, under some circumstances, be the correct rule as between persons who are parties to the action, does the same rule pertain to third persons, not parties, whose rights are affected by the entry of the nunc pro tunc judgment ?

Here, this appellant’s rights under the National Service life insurance policy on the life of her son, attached and vested on the happening of the contingency insured against — viz., the death of her son, on November 6, 1945. Oetting, Gdn., v. Sparks, 109 Ohio St., 94, 143 N. E., 184, syllabus 2. Katz v. Ohio National Bank, Exr., 127 Ohio St., 531, 191 N. E., 782, syllabus 1.

At that time there was not even a pending divorce action between the Simovics, the divorce action having been dismissed for want of prosecution by the Common Pleas Court under Rule 13 (a) on December 18, 1942.

The attempted marriage between Gladys Louise Simovic and Snodgrass, Jr., took place at a time and under such circumstances that it could not even be claimed to be anything other than void ab initio.

So, at the time of Snodgrass, Jr’s., death, he had no legal wife, and it follows that his mother’s rights, as contingent beneficiary, immediately attached.

Thereafter, on February 5, 1946, the dismissal of the Simovic divorce action was vacated, the action “reinstated,” and the nunc pro tunc entry of a divorce decree spread upon the journal of the court. Such a proceeding, however, could not breathe the breath of life into a marriage contract between this defendant and Snodgrass, Jr., for that contract was void when executed, and continued so up to the time of Snodgrass’ death, and thereafter, of course, was incapable of ratification.

When the entry nunc pro tunc was journalized on February 5, 1946, this plaintiff could not intervene in that action to protect her vested rights, because she was not a party thereto. Sbe then did one of the things which she could do, when she filed the action under review.

If this action as filed below is held to constitute a collateral attack upon a valid judgment, then this plaintiff’s case is the inadmissible one of a clear legal right without a remedy.

The writer of this opinion is convinced that the opinion of Spear, J., in the case of Coe v. Erb, 59 Ohio St., 259, 52 N. E., 640, 69 Am. St. Rep., 764, clearly permits the action filed by this plaintiff, and justifies the conclusion that this action does not constitute a collateral attack upon a valid judgment, but on the contrary is a legally justifiable attempt by this plaintiff to protect her vested right to the proceeds of the policy in question. It is stated in that opinion (pp. 268-272):

“While it is true that the parties must resort for relief from the judgment, to a direct attack, as by appeal, motion to correct, or proceeding in error, yet strangers to the judgment, not being entitled to impeach it directly, and who if the judgment were given full faith and effect, would be prejudiced in some preexisting right, are placed upon a different footing. It is said by Professor Freeman, in his work on Judgments, section 335, that ‘being neither parties to the action, nor entitled to manage the cause nor appeal from the judgment, they are allowed to impeach it whenever it is attempted to be enforced against them.’ * * * It is a general and established rule of law, that when a party’s right may be collaterally affected by a judgment, which for any cause is erroneous and void, but which he cannot bring a writ of error to reverse, he may, without reversing, prove it so erroneous and void, in any suit, in which its validity is drawn in question. * * *
“* * * * Id Downs v. Fuller, 2 Met., 135, it is held that: ‘When a judgment, recovered contrary to law, is prejudicial to a third party, he may avoid it by plea and proof.’ ”

See, also, Eldridge & Higgins Co. v. Barrere, 74 Ohio St., 389, at pp. 394-395, 78 N. E., 516.

In my opinion, the entry nunc pro tunc of the judgment of divorce in this case was highly erroneous and void, for three reasons:

First, because the entry of dismissal was regularly made and finally disposed of the case, unless proper proceedings were instituted to set aside that entry and reinstate the case.

I believe that Rule 13 (a) of the Common Pleas Court (corresponding to some extent to Rule VIII of the Court of Appeals) is a valid rule, that the divorce case was rightly dismissed, and that all proceedings after such dismissal were void, as more fully set forth in the next heading.

I further believe that, while the court, as the maker of Rule 13 (a), might have refused to enforce it, whatever right there might have been in the court to enter judgment nunc pro tunc before dismissing the action, was lost when the court determined to enforce the rule rather than enter judgment nunc pro tunc.

Second, because no proper proceedings were instituted to vacate the entry of dismissal and ‘ ‘ reinstate ’ ’ the case.

It will be noted that, not only was no ground of Section 11631, General Code, set forth in the motion attempting to vacate the judgment of dismissal, but that no semblance of a valid reason for vacation was offered; the purported reason being that plaintiff was “under the impression that defendant had paid the court costs.” It will at once be evident that, even though payment of the costs had been made by the husband, the plaintiff would still have remained undivorced.

In addition, the proceedings were not commenced within the time limited for such proceedings by Section 11640, General Code.

Third, because courts are not authorized to enter judgments nunc pro tunc where, as here, the only reason advanced for the request is the party’s own negligence.

Though courts have inherent power to enter judgments nunc pro tunc, the power in its proper use is limited primarily to delays attributable to the court, or at least in the interest of justice where no blame rests on the petitioning litigant; it is not, or at least should not be, used as a means of obviating the plain negligence of litigants.

“The power of the court to enter judgment nunc pro tunc should be used sparingly * * *; relief by entry nunc pro tunc will not be granted where the failure to enter the judgment at the proper time was due to the party’s own carelessness or negligence. * * *

“So too such an entry will not be allowed where it will prejudice the rights of third persons who are without notice of the original rendition of the judgment * * 49 Corpus Juris Secundum, Judgments, Section 118 a.

And see 30 American Jurisprudence, Judgments, Section 103. 1 Freeman on Judgments (5th Ed.), Section 122.

Of course, great leeway is afforded courts during the same term.

In this case, no claim was made that plaintiff endeavored in any way whatsoever, before the proceedings here in question, to have the divorce judgment entered, or even that anyone had ever represented to her that the entry had been filed, or misled her in any way as to the status of the divorce proceeding.

It does not seem to me that the Caprita case, cited by the majority, has any application to the case at bar. There, one of the parties died two days after the announcement of the decision. Some two weeks later, and apparently at- the same term of court, and particularly without any claimed negligence on the part of anyone, the trial court entered the judgment nunc pro tunc, although over the objection at that time of the surviving party.

There is another reason why 1 think the entry nunc pro Pune herein is void, but which only the Supreme Court can recognize at this time. That is the generally-accepted rule that, before a judgment nunc pro tunc can be entered under any circumstances after the end of the term, some memorial of a specific judgment must appear on the judge’s docket or other court record. In this case no such record appears. The jacket of the original case contains only the information that the case liad been heard and that a journal entry was to be furnished; indicating, it seems to me, that the judgment in the case — whatever- it was — was to be entered when the entry was furnished.

The Supreme Court of this state considered, in 1897, the question of extrinsic evidence where no such memorial was in existence, and decided that parol evidence could be admitted to ascertain what the judgment of the court was. Jacks v. Adamson, 56 Ohio St., 397, 47 N. E., 48, 60 Am. St. Rep., 749. However, since the weight of authority is contrary to that decision (49 Corpus Juris Secundum, Judgments, Section 120 c), the Supreme Court of this state may now desire to adopt the majority rule. See: Puccinelli v. United States, 5 F. (2d), 6 (where it was said that the “overwhelming weight of authority” supports the “memorial” rule); Gagnon v. United States, 193 U. S., 451, 48 L. Ed., 745, 24 S. Ct., 510; DuPree v. Hart, 242 Ala., 690, 8 So. (2d), 183; and especially Young v. Young, 165 Mo., 624, 65 S. W., 1016 (where it was held that a nunc pro tunc entry in violation of this rule is void).

It might also be observed in passing that the case of Hoffman v. Shuey, cited in the majority opinion, held that this record memorandum was necessary, and cited many cases where that court refused to enter judgments nunc pro tunc where such records did not exist.

And in the Hobson case, relied upon by the majority, it definitely appears from the opinion that the nunc pro tunc entry was made on the basis of a written memorandum by the judge who decided the case, and that the absence of the entry was due to inadvertence (it does not say of whom), rather than by reason of negligence of the petitioner. Also, in neither the Cuprita case nor the Hobson case had the action been dismissed, and then purportedly reinstated for the express purpose of entering a nunc pro tunc judgment^ as in the ease at bar.

If there be any vitality remaining in the rule that, a court .speaks only through its journal, then the Simovies were not divorced at the time of Snodgrass, Jr’s.,, death, and Mrs. Simovie and Snodgrass were not legally married upon said date.

The only person then eligible to take under the law governing National Service insurance was this plaintiff, as contingent beneficiary, there being no legal wife.

I am not persuaded that a mother who brings a son into the world is relegated to a position of “gratuitous beneficiary” inferior to that of a woman who enters into a legally meretricious relationship with that son,, nor am I convinced that any court would declare a constructive trust for the benefit of Gladys Simovie to-deprive this plaintiff of the proceeds of an insurance-policy on the life of her son, to which this plaintiff was legally entitled.

It is my opinion that the judgment under review-should be reversed, and this plaintiff accorded the relief for which she prays in her petition.

I accordingly dissent from the conclusion announced' by my colleagues.


author: Ross, P. J.

text:
    In re Deye.
    (No. 7112
    Decided June 27, 1949.)

      Mr. Ferd Bader, Jr., for appellant.

      Mr. Nathan Solinger, for appellee.
   Ross, P. J.

On January 18,1949, Emanuel S. Marks filed a petition in the Common Pleas Court of Hamilton County.

In this petition, lie alleged that lie purchased an eight-story building from The Kruse & Bahlman Hardware Company on October 15, 1948; that at that time The Quality Engraving & Electrotype Company was a tenant in such building and that coincident with the transfer of title to the building, Marks acquired the lease of The Quality Engraving & Electrotype Company by assignment from the former-owner grantor,. The Kruse & Bablman Hardware Company, and that such former owner had permitted The Quality Engraving & Electrotype Company to install a certain “panel board and interior distribution arrangement” which is now located in that part of the premises under the sole control and in the possession of the new owner, Emanuel S. Marks, plaintiff in the principal action.

In the petition, this plaintiff alleges further that The Quality Engraving & Electrotype Company used this panel board and accessories so occupying the premises of the plaintiff for the purposes of distributing- electricity to other cotenants in the building, and that it paid a gross rate to The Cincinnati Gas & Electric Company and charged its cotenants a retail and higher rate for distribution of electric current to them.

The prayer is for an accounting of profits so made by The Quality Engraving & Electrotype Company, and for injunction against continued occupation of the property of Marks by the panel board and accessories.

It may be well doubted whether under such allegations the plaintiff ever will be entitled to any accounting. It would appear that his damages are limited to the reasonable rental value of the space unlawfully occupied, if it be shown that The Quality Engraving & Electrotype Company had no legal right to occupy the space used for the panel board and accessories.

Now, the plaintiff proceeded to take the deposition of one Charles E. Deye, president of The Quality Engraving & Electrotype Company, and the president was served with a subpoena duces tecum in which he was ordered to “bring with you all books, records, memoranda and documents reflecting income of The Quality Engraving & Electrotype Company from the sales of electric current at the building at 424 Commercial Square, Cincinnati, for the period from November 1, 1948, to date, and reflecting also the payments made by The Quality Engraving & Electrotype Company to The Cincinnati Gas & Electric Company for electric current during the period November 1, 1948, to date, also records, memoranda or documents reflecting the volume of separate use of electricity by each of the tenants in the building at 424 Commercial Square, Cincinnati, including The Quality Engraving & Electrotype Company, for the period of November 1, 1948, to date; also all records, memoranda or documents reflecting billings for electricity made by The Quality Engraving & Electrotype Company to other tenants of the building at 424 Commercial Square, Cincinnati, during the period November 1, 1948, to date.”

In the bill of exceptions, the testimony of the president of The Quality Engraving & Electrotype Company (which company was the defendant in the principal action) is quoted. It is to be noted that the president was called as a witness and his deposition “taken as on cross-examination.”

What transpired before the notary public is shown from the following quotation from the bill of exceptions :

“Q. Mr. Deye, you are the president of The Quality Engraving & Electrotype Company, the defendant in this case, are you not? A. Yes.
“Q. And you are actively engaged in the day to day conduct of the business. A. Yes.
“Q. You have access to the books and records and documents, etc.? A. Yes.
“Q. Those books, records, papers and memoranda, Mr. Deye, are subject to your control and supervision, are they not? A. In the main, yes, I control them, insofar as I know the records are there as far as 1 know.
“Q. Did you bring with you today for this deposition, in response to the subpoena that was issued and served on you, all of the books, records, memoranda and documents reflecting income of The Quality Engraving & Electrotype Company from the sale of electric current in the building at 424 Commercial Square, Cincinnati, for the period from November 1, 1948, to date, and reflecting all of the payments made by The Quality Engraving & Electrotype Company to The Cincinnati Gas & Electric Company for electric current during the period November 1, 1948, to date, and also records, memoranda or documents reflecting the volume of separate use of electricity by each of the tenants in the building at 424 Commercial Square, Cincinnati, including The Quality Engraving & Electrotype Company, for the period November 1, 1948, to date, and also all records, memoranda or documents reflecting billings for electricity made by The Quality Engraving & Electrotype Company to other tenants of the building at 424 Commercial Square, Cincinnati, during the period November 1, 1948, to date. Did you bring those various records? A. For the reason that it was private, privileged business in which the plaintiff has no concern other than infringing, see, upon my rights, for that reason it is privileged business, it is my business in which he has no interest. 1 definitely refuse to answer.
“Q. I take it that you did not bring those? A. 1 did not bring the records, I brought none of the stuff you mentioned there, I have nothing with me outside of my person.
“Q. I will request of you that you immediately proceed to produce those books, records, memoranda and documents at this time, as requested in the subpoena. A. I will refuse to do so for the reasons mentioned heretofore.
“Mr. Solinger (to the notary): Miss Brown, I ask you as notary conducting this deposition to repeat to the witness the request that 1 have just made and in the event of his failure thereupon to comply, to proceed with proceedings in contempt for the refusal of the witness. A. You can dispense with reading it, my answer will be the same.
‘ ‘ Mr. Bader: Let the record also show in addition to the reasons given by Mr. Deye for failing to bring the records as requested is that the records are privileged, they are the private property of The Quality Engraving & Electrotype Company and they are the secret records of the company, and that the production of the records is irrelevant and immaterial as far as the issues in this case are concerned and not pertinent thereto. Also, it would create an unusual and extraordinary burden on the witness to deliver those records to this office.
“Q. Mr. Deye, I understand that some of those books are of some bulkiness, is that correct? A. Well, it all depends what you want; sure, the books of any corporation are of size.
“Q. Now, would it be satisfactory with you and would you be willing to give us the opportunity if Mr. Marks or I or some other representative of Mr. Marks examined those books, records, memoranda and documents in your office? A. Absolutely no.
“Q. You would not make them available to Mr. Marks or his representative in your office? A. Not unless I am legally compelled to do so.”

Without any further order of the notary an order of commitment was issued. A habeas corpus proceeding was instituted in which the Common Pleas Court sustained the commitment. From such judgment, this appeal on questions of law is taken.

In the case of In re Martin, Jr., 141 Ohio St., 87, 47 N. E. (2d), 388, it is stated in the fourth paragraph of the syllabus:

“A witness who is not a party has no legal right, upon the taking of his deposition, to refuse to answer any question, upon the advice of his attorney, merely because the attorney believes that the testimony sought is irrelevant, incompetent or immaterial. ’ ’

Now, it is to be noted that the deposition of this witness was taken “as on cross-examination,” and while the president of the corporation was not the defendant corporation, still the corporation speaks through its officers and if their evidence is taken on cross-examination they should have all the privileges of a party, including the right to question the relevancy of books and papers required to be produced, which are the property and within the privilege of the corporation. It is the corporation-defendant that is speaking through its president in questioning the relevancy of the books and papers demanded.

Whether further development of the original action may sustain the right to an .accounting, it is perfectly manifest that, at the time the deposition was taken, no facts were alleged showing the existence of such right. The facts alleged in the petition show nothing which would entitle the plaintiff to pry into the relations existing between the defendant and the Cincinnati Gas & Electric Company or its co-tenants.

No more typical case could be presented illustrating the injustice of requiring a corporation to produce through a subpoena duces tecum issued to an officer a mass of books and papers wholly irrelevant to any issue that could be presented by the pleadings in existence at the time the subpoena was issued.

While the right of the notary to pass upon matters of relevancy and materiality may be limited and his obligation to commit mandatory, certainly, when it is made to appear to a court in a habeas corpus proceeding that the books and papers involved have no relevant connection with the issues presented by the pleadings, it would be a travesty on justice if a court should be required to sustain a commitment based upon a refusal to produce that which it, as a court, would be bound to exclude as not being material and relevant evidence.

The last expression of the Supreme Court in anyway relevant to the issues here presented is found in In re Keough, 151 Ohio St., 307, 312:

“Petitioner maintains that there is a real and valid distinction between a subpoena ad testificandum and a subpoena duces tecum, but we need not pass upon the question involved in his thesis for the reason that we hold, on authority of the Hyde case, that the information required in the subpoena involved here is pertinent in the Gebauer case.
“The identity of the operators of a transportation vehicle involved in an accident is relevant in an action concerning such accident by one who claims to have been hurt therein. The kind of person an operator is, with reference to his competency or lack thereof or training or lack thereof, bears directly upon the question of the due care of the transportation company with reference to the operators to whom it entrusts its vehicles.
“We are not holding that an accident record of such an operator would shed any light upon his competency or incompetency, because that would require a collateral investigation as to the cause of other accidents not concerned with the one on trial.
“Assuredly it would be pertinent to a plaintiff’s case, in the trial of a negligence action as the result of an accident in which a public transportation vehicle was concerned, to have information as to what vehicle was involved, as to its schedules on the day of the accident and as to its route. All these matters have a direct bearing upon the question of the operating speed.
“Since petitioner’s whole argument with reference to Section 11551, General Code, is bottomed upon a question of relevancy, Gebauer was entitled under that section to the information he seeks in the subpoena with which the present case is concerned.”

In the instant case, the witness, having been called as on cross-examination and being the president of the defendant corporation, had the right to question "the relevancy and materiality of the books and papers of the defendant corporation, which he was ordered to produce.

Although the witness in questioning the right of the notary to require production did not use the terms, “relevancy and materiality,” the witness, in effect, questioned such right upon those grounds.

Other than the original subpoena, there is no order of the notary to produce the records in question.

For the reasons given, the judgment of the Common Pleas Court is reversed and the petitioner, Charles E. Deye, is released from custody, as prayed for in the petition.

Judgment reversed.

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


author: Hornbeck, J.

text:
    Deweese et al., Trustees, Appellees, v. The Piqua Memorial Hospital Assn., Appellee; Krug et al., Appellants.
    (No. 445
    Decided November 24, 1948.)

      Mr. A. W. Deweese, for plaintiff-appellees.

      Mr. J, Cameron Dungan, for appellant Morton H. Krug, executor.
   Hornbeck, J.

Plaintiffs are the trustees under the will of Miles K. Brown, deceased, and seek the direction of the court as to the distribution of certain assets of the estate to beneficiaries of life estates and upon the death of Harry ,1. Krug, the last survivor of the life tenants under the will.

Miles K. Brown left á will and a codicil thereto which was duly probated and under which the trustees are acting. The first paragraph of the second item of the will names plaintiffs as trustees. The second paragraph defines their powers and indicates the purpose of the testator respecting his estate. The third and fourth paragraphs define the trust and the authority of the trustees. The fifth paragraph names the beneficiaries, their interest, states the conditions under which and the proportions in which they shall share in the estate, namely, life interest in “the entire net income of my estate,” and directs the trustees as to manner of distribution to the named beneficiaries. This paragraph provides that the net income shall be paid to the beneficiaries “in semi-annual installments for and during the natural lives” of each of them.

The sixth paragraph of the second item reads:

“Upon the death of all my beneficiaries of my net income, to wit, Mary L. Kerns, Nellie B. Krug and Harry ,J. Krug, I hereby direct * * * my said trustees * * * to transfer the whole of said trust estate, both principal and accrued earnings, to the trustees * * * of the Memorial Hospital Association of Piqua, Ohio * % # ? J

In the codicil, at the end thereof, this language is employed,

“I hereby ratify all remainder of my last will and testament outside of this substitution for the fifth paragraph of item second thereof.”

The effect of this latter language is to expunge from the will all the fifth paragraph of the second item thereof, not adopted by reference, and to substitute therefor the provisions of the codicil.

In the pertinent part of the codicil it is provided,

“It is my will that the said trustees * * *, shall pay the net income of my estate Jn their hands as designated in the fifth paragraph of the second item thereof in the following proportions. ’ ’

The testator then names those who shall take the life interests and how they shall pass upon the death of one or more of the life tenants and concludes:

“The intention of said trust is to apply the net income to said beneficiaries herein named [in] equal portions, and to the survivor or survivors thereof until the last beneficiary will have died.
“The net income herein mentioned shall mean, (after all administration expenses have been paid, and deducting all annual expenses, including taxes, assessments, repairs and flowers for my family mausoleum or necessary repairs thereto and also a reasonable compensation to my trustees as designated in my last will and testament.) ’ ’

The codicil removes the direction to the trustees to pay the entire net income of the estate to the named beneficiaries “in semi-annual installments,” and the time when the net income should be paid to them was not fixed. The trustees, in 1924, made application to the Probate Court to reduce their bond, which application was allowed and at the same time the court directed the trustees to make payment of the income due the beneficiaries of the life estate at intervals of six months, or in semi-annual installments.

Prom the petition it appears that Nellie B. Krug died on January 24, 1942, leaving Mary L. Kerns and Harry J. Krug her survivors, that Mary L. Kerns died on March 18, 1943, leaving Harry J. Krug, her sole survivor, and that Harry J. Krug died on April 24, 1946. The petition continues:

“Plaintiffs are in doubt as to the right of the distribution to Harry Krug and cannot safely proceed without direction of the court and especially to what is ‘ net income and accrued earnings ’ as the will states that upon the death of all the aforesaid named parties the trust shall be transferred to the Memorial Hospital Association of Piqua, Ohio, both the principal and accrued earnings in their hands. That a question arises that upon the death of any of these parties during the interim between the semi-annual settlement whether the cestui que trust is entitled to the net income up to the time of the death. ’ ’

It is the claim of the plaintiffs that upon the death of any beneficiary, his share is restricted to that which was distributed to him on the date of the last distribution at the six-month period prior to his death; that upon the death of the last survivor of the beneficiaries, Harry J. Krug, his right to income ceased as of the date of the last six-months distribution of net income prior to his death; and that the net income accruing on his share subsequent to the last distribution to him prior to his death should, with the principal of the estate, be transferred to the Memorial Hospital under the true meaning of paragraph six of item second of the will. It is the further contention of the plaintiffs that the last six months distribution regularly made to the last surviving beneficiary, Harry J. Krug, was all to which his estate was entitled.

It is the claim of the defendant, appellant herein, the executor of the estate of Harry J. Krug, that the estate of Harry J. Krug should take any net income that had accrued at his death which he would have taken had he lived.

The Probate Court held with the contention of the plaintiffs for two reasons: First, that their claim was supported by the provisions of the will and codicil, and second, that upon the application of the trustees to reduce their bond, the court had held that distributions of the net income should be made to the holders of the life interests by the trustees each six months, which order is in the nature of res judicata in this action to construe the will.

The first obligation of the court is to ascertain the meaning of the language employed by the testator in his will. In observing this obligation, every word used by him should be given meaning and application, if possible. When he said that the trustees should pay the “net income” of his estate to the named beneficiaries for their respective lives, he intended that it should- harmonize with the further provision for the distribution of the remainder of his estate to the hospital, which he defined as “both principal and accrued earnings. ’ ’

If a beneficiary is entitled during his lifetime, without qualification, to the income of a testator’s estate, he is technically entitled every day that he lives, and as long as he lives, to his share that has accumulated. But for practical purposes distribution must be made at appropriate intervals. Of course, it is within the power of a testator to limit the payment of income to a beneficiary, so that it would not extend beyond that allocable to him at a certain fixed date prior to his death. Here, we have no such limitation in the will and certainly not in the codicil. Without such limitation, unless the language of the will is irreconcilable with full distribution to the beneficiary for the full period of his life, it must be so construed.

The fifth paragraph of the second item of the will as set out in the codicil is definite and creates life estates in the named beneficiaries. Testator says that “the net income of his estate,” which he defines, shall be paid to each of them in equal portions “during their natural lives ’ ’ and that it is his intention to apply ‘ ‘ the net income to said beneficiaries herein named [in] equal portions, and to the survivor or survivors thereof until the last beneficiary will have died. ’ ’

But it is said that paragraph six of item two directed the trustees upon the death of the beneficiaries to transfer the whole of the trust estate “both principal and accrued earnings, to * * * the Memorial Hospital Association of Piqua, Ohio.” However, the testator begins this paragraph -with this language, “üpon the death of all my beneficiaries of my net income.” It is manifest to us and must have been to the testator, who was a businessman with extensive holdings, that it would not only be impracticable, but impossible for his trustees to close the administration of his estate and to make distribution to the remainderman, the hospital, immediately upon the death of the last survivor of the life estates and because of this fact, there would be some accrued earnings on the principal when final distribution could be made. It is this added increment to the principal which, in probability, the testator meant when he used the term “accrued earnings.” If it be so construed, there is consistency and harmony between the terms “net income” and “accrued earnings” and both may be given full application.

In Matter of Watson, 262 N. Y., 284, 186 N. E., 787, the court held a will providing that income for life should be paid to certain named beneficiaries and “upon his or her death to pay over and deliver the principal of the fund with all accumulated income to his or her issue, per stirpes, * * *” required that accumulated income on trust estate due at time of life tenant’s death should go to his estate and part accruing thereafter should go to remaindermen. Sixth paragraph of the syllabus. The language of Crane, Judge, who wrote the opinion, at page 300, is interesting—

“The reference to ‘principal and accumulation’ is sort of a ‘ stock phrase ’ and means the accumulation to which the remaindermen are entitled according to law.”

Page, in his work on Wills, Volume 4, page 536, says,

“If the beneficiary dies between the periods for the payment of income, it is now held that in the absence of any provision of the will showing a contrary intent, the income should be apportioned and the part accrued up to his death paid to his estate, provided it is an absolute gift of income and not a gift of support merely.”

Citations are made to seven states and England. See particularly Welch v. Apthorp, 203 Mass., 249, 89 N. E., 432, 27 L. R. A. (N. S.), 449. In Boggs, Admr., v. Taylor, 29 Ohio St., 172, the estate was not held m trust but a life interest was given to the wife in certain income and the residuum was to be divided at her death among named remaindermen. The court held that the interest on income which accrued from the funds named in the will during the lifetime of the life tenant subject to named charges, passed absolutely to her estate. In Lamb v. Lehmann, Trustee, 110 Ohio St., 59, 143 N. E., 276, 42 A. L. R., 437, the will gave to a trustee, in trust, certain shares of stock in a corporation, with power of sale and reinvestment, and instructions to pay “the entire net income thereof” to one person for life, with remainder to another. It was held that “all cash or property dividends declared thereon shall be payable to the person holding the life estate, and all stock dividends, so called, shall become a part of the corpus of the estate and be held by the trustee during the life of the life tenant, and be distributed at his death to the remainderman.” First paragraph of the syllabus. The second paragraph of the syllabus reads:

“All cash or property dividends declared and paid upon stock dividends shall likewise be payable to the owner of the life estate during his life.”

We do not have in the pleadings a statement of the present holdings of the trustees. If such holdings are stocks and bonds the income from which is properly distributable to the holders of the life estate is well defined by adjudications in Ohio, and if there is any difficulty in making this determination the matter wili have to be presented to the Probate Court in proper form because it is not so presented on this appeal.

We have not discussed all the cases cited and commented on by counsel, principally because we are in no doubt as to the proper construction of this will, upon well recognized legal principles, as to which there is no doubt, and a discussion of more eases would add little to this opinion and prolong it unnecessarily.

The judgment will be reversed in accordance with this opinion and cause will be remanded.

Judgment reversed.

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


author: Conn, J.

text:
    Sherer, Appellant, v. Smith, Appellee.

      (No. 310
    Decided May 16, 1949.)

      Messrs. Newcomer & Newcomer, for appellant.

      Messrs. Gebhard & Rogue, for appellee.
   Conn, J.

This is an appeal by plaintiff from a judgment of $350 entered in his favor in the Common Pleas Court. The action grew out of a collision between the motor vehicles of plaintiff and defendant on November 28, 1945, at the intersection of Monroe and Main streets in the village of Montpelier, Ohio.

The issues were made up by the petition of plaintiff, answer and cross-petition of defendant and the reply and answer of plaintiff.

It is admitted in the pleadings, or shown by the evidence, that plaintiff was operating his motor vehicle north on Monroe street and approaching the intersection of that street with Main street at the same time the defendant was operating his motor vehicle west on Main street and approaching such intersection; and that a collision occurred between the motor vehicles of the parties and each vehicle sustained damage. Plaintiff received certain personal injuries, to wit, cut on left wrist, severing of artery with consequent loss of blood and injuries to his right arm, shoulder and back.

It appears further that immediately following his injury plaintiff was taken to a physician and later to a hospital, and that as a result of his injuries plaintiff sustained a partial and permanent loss of function in his left hand, to wit, partial loss of gripping power and some limitation of movement of the wrist.

Plaintiff testified that immediately previous to his injuries and for a long time prior thereto he had been employed by the Wabash Railroad Company, at Montpelier, Ohio; that by reason of the loss of function in his left hand and wrist he was unable to perform his customary labor; that his injuries were painful; and that he has continually suffered pain in his left hand and wrist and some loss of sensation. '

The jury returned a verdict in favor of plaintiff for $350, on which judgment was entered. Plaintiff appeals on questions of law.

Taking up first the alleged error in the general charge of the court, it appears that in his general charge to the jury the court commented on the subject of insurance, as follows:

“If you find for the plaintiff you should not diminish his damages by reason of the fact, if it be a fact, that hi's expenses or a part thereof, were taken care of by any insurance or hospital benefits. Further, there is no evidence whatever in this case that either party had insurance of any kind and any reference to insurance during the trial or in the arguments of counsel should be entirely disregarded by you.”

Plaintiff testified that deductions from his wages were regularly made by his employer to provide a benefit fund for plaintiff to be used in defraying any medical and hospital expenses he might incur, and that in the instant case his medical and hospital expenses were paid by the employer out of this fund. Plaintiff claims that since the benefit funds for medical and hospital expenses were created by deductions from his earnings, such benefits thus accruing to plaintiff were in the nature of insurance, and that the court in “giving any instructions relating to insurance” should have pointed this out to the jury and so instructed it.

We do not find any authorities in support of the contention of plaintiff that the Wabash Railroad Company in setting up the plan creating the medical and hospital fund for the benefit of employees of that company was engaged in the business of insurance within the contemplation of the provisions of the statutes of this state or that the contract of membership of plaintiff was a contract “substantially amounting to insurance. ’ ’

The court correctly charged the jury that, if plaintiff was entitled to recover, his damages should not be diminished by reason of the hospital benefits he might have received. Klein v. Thompson, 19 Ohio St., 569; Gries v. Zeck, 24 Ohio St., 329; McDowell v. Rockey, 32 Ohio App., 26, 167 N. E., 589; Ohliger v. City of Toledo, 20 C. C., 142, 10 C. D., 762; Truscon Steel Co. v. Trumbull Cliffs Furnace Co., 120 Ohio St., 394, 166 N. E., 368; 13 Ohio Jurisprudence, 204, 206, Sections 113, 115.

It does not appear that the charge complained of was prejudicial to plaintiff, and this assignment of error is not sustained.

The second error assigned is that the verdict is grossly inadequate and for this reason is against the weight of the evidence.

The statutory grounds for a new trial enumerated in Section 11576, General Code, do not specifically include inadequacy of verdict. However, subdivision 6 of that section provides that a new trial may be granted on application of the aggrieved party when the judgment “is not sustained by sufficient evidence.’’ Furthermore, it -may be noted that the statutory grounds for which new trials may be granted are not deemed to be a limitation on the inherent power of the courts to grant new trials in furtherance of justice or to prevent injustice. Brenzinger v. American Exchange Bank of Duluth, 19 C. C., 536, 10 C. D., 775; 30 Ohio Jurisprudence, 31, Section 3.

The jury returned a general verdict for plaintiff and by its verdict determined that the injury and loss sustained by plaintiff resulted proximately from the negligence of the defendant.

The evidence disclosed that plaintiff received medical attention and was hospitalized for a period of two weeks; that the reasonable value of the services of the physician was $15 and that of the hospital was $10 to $12 per day; and that plaintiff’s automobile was of the reasonable value of $200 before the collision and “about fifty” dollars after the collision.

Plaintiff testified that upon being discharged from the hospital he was unable to return to work and perform the labor incident to his job; that ever since bis injuries he has suffered pain; that at the time he was injured he was earning $9.08 per day; and that he returned to work on April 23, “which would be about 145 days from the accident until that time.”

The medical testimony tended to establish that, plaintiff has some limitation of motion at the wrist joint and some loss of gripping power of the left hand, and that these limitations of the use of the wrist and the hand are permanent.

It requires merely a simple calculation to demonstrate that, the amount of the verdict, and judgment thereon is inadequate to compensate plaintiff for medical and hospital expenses, loss of wages during the time he was in the hospital and property damage. This calculation does not embrace such further loss of wages, as plaintiff’s evidence tends to show he may have sustained, or any award for pain and suffering or partial loss of use of left hand and wrist.

The issue of inadequacy of verdict has had the consideration. of the courts of this state in a number of cases through the years. Among the earlier cases which we have examined is Dougherty v. Gilbert (1816), Tappan, 6, where it was held in a case of trespass and false imprisonment:

“4. The court has power to grant new trials for excessive small as well as large damages.”

Of the subsequently reported cases in this state, involving such issue, we cite the following: Toledo Rys, & Light Co. v. Mason, 81 Ohio St., 463, 91 N. E., 292, 28 L. R. A. (N. S.), 130; Salisbury v. Frank, Admr., 7 Ohio App., 454; Rognon v. City of Zanesville, 24 Ohio App., 536, 157 N. E., 299; Greer, Admr., v. Board of Commrs., 33 Ohio App., 539, 169 N. E., 709; Brannon v. Bowers, 65 N. E. (2d), 676, 46 Ohio Law Abs., 444; Bailey v. Cincinnati, 12 Dec. Rep., 225; Ferrich, Admx., v. Mellas, 139 Ohio St., 495, 40 N. E. (2d), 908. See 30 Ohio Jurisprudence, 133, Section 83; 15 American Jurisprudence, 663, Section 231; 25 Corpus Juris Secundum, 912, Section 196.

It appears to be well settled in this state that where the inadequacy of the verdict is so gross as “to shock the sense of justice and fairness,” or where the amount of the verdict cannot be reconciled with the undisputed evidence in the case, or where it is apparent that the jury failed to include all the items of damage making up plaintiff’s claim, the judgment entered on such verdict may be set aside by a reviewing court as being manifestly against the weight of the evidence and contrary to law. Toledo Rys. & Light Co. v. Mason, supra; 2 Ohio Jurisprudence (App. Rev., Pt. I), 1660, Section 877.

Although in the instant case the amount of the verdict may not be shocking, yet it is clear that it cannot be reconciled with the damage and loss plaintiff sustained.

The jury having found for plaintiff and that he was entitled to recover, it is our opinion that, on the undisputed evidence as to the extent of loss sustained by plaintiff and the character of plaintiff’s injuries, the finding and judgment are manifestly against the weight of the evidence, and that the judgment of the trial court should be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Carpenter and Fess, JJ., concur.


author: Wiseman, P. J.

text:
    Reef et al., Appellees, v. Nagle et al., Appellants.

      (No. 4203
    Decided February 1, 1949.)

      Mr. W. B. Cockrell, for appellees.

      Mr. Daniel E. Bevis, for appellants,
   Wiseman, P. J.

This is an appeal on questions of law from the Municipal Court of Columbus, which rendered a judgment for the plaintiffs in an action to recover a real estate brokerage commission.

The defendants, appellants here, assign as error: That the court excluded evidence offered by defendants; that the court admitted evidence over objection of the defendants; that, the finding of the court is not sustained by sufficient evidence, is contrary to law, and is against the manifest, weight, of the evidence.

Plaintiffs, in their petition, allege that defendants listed their property for sale with plaintiffs as agent; that, pursuant to such listing, plaintiffs showed' the premises to Oreweiler and Hubble, who purchased the property from defendants, and that by reason thereof, the defendants owe the plaintiffs the. regular commission on the sale price. The defendants in their answer admit that Oreweiler and Hubble, purchased the property, and deny each and every other allegation in plaintiffs’ petition.

The agency contract on which plaintiffs base their right of recovery was verbal, the terms of which are much in doubt. The evidence when construed most favorably to the plaintiffs, supports the plaintiffs’ contention that one Ohivers, agent, for Central Realty Company, in a conversation with J. Clinton Nagle, the owner of the property, secured his permission to advertise the property for sale. Chivera testified that Nagle gave him an exclusive listing for thirty days. No other terms were agreed upon. The Central Realty Company advertised the property in a Columbus newspaper. Observing the newspaper advertisement, an agent of the Wm. P. Zinn Company, one James Arnold, -a few days thereafter showed the property to Oreweiler and Hubble. Arnold testified that he did so with the knowledge and consent of Central Realty Company and that the two brokerage firms were acting in co-operation in securing a purchaser. Arnold priced the property at $12,500 which the purchasers were not willing to pay. One of the occupants of the property stated to Oreweiler and Hubble that the property could be purchased for $12,000. At this point Arnold, Oreweiler and Hubble entered into a •conversation respecting the payment to Arnold of a certain sum of money for his services. The evidence clearly shows that Arnold had been trying for several weeks to find a property for Oreweiler and Hubble. It was then agreed that Oreweiler and Hubble would pay Arnold for his services. There is evidence supporting the conclusion that the amount agreed upon was $200. Arnold thereupon withdrew, and the occupants of the property took Oreweiler and Hubble to the Nagles where the sale was made for $12,000. Shortly after the sale was made, Nagle learned that Arnold had taken the two purchasers to the property. Nagle stated to the purchasers that he would not go through with the sale at $12,000 if he had to pay a commission. The purchasers stated they had agreed to pay for the services of Arnold. Nagle requested the purchasers to sign a written statement to that effect, which they executed and which was introduced into the evidence as plaintiffs’ exhibit A, which is as follows:

“We, the undersigned hereby agree, in the transfer of property at 1557-9 Doten avenue to us this day, to pay to James Arnold for his services rendered to us in the purchasing of this property.”

The defendants claim this statement was erroneously admitted. While it is true that this statement has little or no probative value in support of plaintiffs’' claim, it is not prejudicial to defendants. In fact, it is evidence supporting the claim of defendants that Arnold was acting as the agent of Oreweiler and Hubble.

The defendants attempted to show a course of dealing between Chivers and Nagle to which the court sustained an objection. Since no proffer was made of the evidence, this assignment of error is not well made.

Before the plaintiffs have a right to recover they must show by a preponderance of the evidence that the defendants entered into a contract of employment the terms thereof, and that under such contract they are entitled to a commission. The terms of the contract of employment are so meager and so'indefinite that counsel for plaintiffs in presenting this case was prompted to make the statement that the plaintiffs were required to rely on quantum meruit.

Two obstacles to a recovery by plaintiffs are presented: First, plaintiffs did not consummate the sale. In such a situation the plaintiffs would be required to show that their efforts were the procuring cause of the sale. In order to make out a case plaintiffs must rely on the services and efforts of Arnold. However, the evidence shows that Arnold was guilty of attempting to serve two masters. Section 6373-42, General Code. When a dual agency is shown, there can be no recovery, in the absence of evidence that the parties had knowledge of the dual agency and consented thereto. 6 Ohio Jurisprudence, 206, Section 35; Capener v. Hogan, 40 Ohio St., 203; Bell v. McConnell, 37 Ohio St., 396; Carter v. Leininger, 49 Ohio App., 503; Lass v. Meinhart, 15 Ohio Law Abs., 272. No evidence was presented to establish knowledge and consent. True, the evidence shows that Arnold realizing that he had committed an error, notified the parties, but it. was too late. The sale had been made, and the validity of the agency relationship had been impaired. Second, assuming, without conceding, that the efforts of the plaintiffs were the procuring cause of the sale, there is no evidence in the case from which the court could evaluate the services rendered. In the petition the plaintiffs failed to allege any promise of defendants to pay a commission of any amount. Moreover, no evidence was presented on the question- as to the amount agreed upon as the reasonable value of the services. In the absence of evidence on this issue there cannot be a recovery.

We find that the judgment of the trial court is not sustained by sufficient evidence, is contrary to law and is against the manifest weight of the evidence.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


author: Hunsicker, J.

text:
    Nahas, Admx., Appellant, v. George, Appellee.
    (No. 3976
    Decided April 12, 1949.)

      Messrs. Brouse, McDowell, May, Bierce & W ortman, for appellant.

      Messrs. Slabaugh, Guinlher & Pfhieger and Mr. Albert F. Schwartz, for appellee.
   Hunsicker, J.

Lillian Nahas, as administratrix of the estate of Elias Nahas, deceased, commenced an action in Common Pleas Court, praying for an accounting of partnership profits and an undivided one-half interest in a partnership which she claims existed between her deceased husband, Elias Nahas, and Solomon George, the appellee herein. Mr. George denies that any partnership ever existed between Elias Nahas and himself, as claimed by the administratrixappellant.

This appeal from the judgment of the Common Pleas Court is here on law and fact. We have carefully read and considered the transcript of testimony and the exhibits introduced herein, and are unanimously of the opinion that appellant has established the existence of a partnership between Elias Nahas and Solomon George, as claimed in the petition.

This partnership having been dissolved by the death of Elias Nahas on February 22, 1942, the question immediately facing us concerns the application of Section 8085 at seq., General Code, to the facts of this case.

We have considered the case of McShaffrey, Exrx., v. McShaffrey, 10 Ohio Law Abs., 408, decided by the Court of Appeals of this district on June 5, 1931. but find that it has no application to the facts of the instant case.

Section 8085, General Code, provides:

“When a member of any partnership in this state dies, the surviving partner or partners, upon the appointment of an executor or administrator of the estate of such deceased partner, shall, forthwith, make application to the probate court of the county in which the partnership existed, upon first giving notice of the time of the bearing of such application to the executor or administrator, for the appointment of three judicious disinterested appraisers, who shall make out, under oath, a full and complete inventory and appraisement of the entire assets of the partnership, including any real estate, together with a schedule of the debts and liabilities thereof, and deliver it to the surviving partner or partners, to be by him or them forthwith filed in the probate court of the county in which such appraisers were appointed.”

By the terms of this and the related following sections, the mode of procedure is set out whereby a surviving partner winds up the partnership business. The provisions of these sections are mandatory, and the exclusive jurisdiction lies in the Probate Court to complete the affairs of this partnership.

We believe the reasoning followed in the case of Fissell v. Morris, 9 Ohio Law Abs., 625, is proper and persuasive, and, in that case, the court said, at page 626:

“The mode of procedure mapped out by the statute is full and complete to give the plaintiff ample relief and a full opportunity to have his claim adjudicated. The provisions of Sec. 8085 G. C. are mandatory and exclusive. The Probate Court has complete jurisdiction and full authority to adjudicate the rights of the parties in this case.”

A decree may be prepared dismissing the petition herein, for the reason that jurisdiction of the subject matter of this action is vested exclusively in the Probate Court.

Decree accordingly.

Stevens, P. J., and Doyle, J., concur.


text:
    Kirkbride et al., Exrs., Appellees, v. Hickok et al., Appellees; Toledo Society et al., Appellants.
    (No. 4344
    Decided February 7, 1949.)

      Messrs. Kirkbride. Cole, Frease é Mittendnrf, for appellees Walter G. Kirkbride and others, executors.

      Messrs. Welles, Kelsey, Fuller, Cobourn & Harrington, for appellees Daisy S. Hickok and others.

      Mr. Leroy E. Eastman, Mr. Harry Levison, Mr. Henry R. Bloch, Rlr. Bert P. Hebenstreit, Mr. Richard D. Logan, Mr. Josiah T. Herbert and Rlr. John R. Eastman, committee of counsel, for appellants.
   Fess, J.

Appellees moved to dismiss an appeal on questions of law and fact from a judgment of the Probate Court construing a will. The motion is based upon the contention that the action does not involve the validity or construction of the terms of a trust and, therefore, the appeal presents only a question of law. Clark v. Clark, 110 Ohio St., 644, 144 N. E., 743; Crowley, Admr., v. Crowley, 124 Ohio St., 454, 179 N. E., 360.

That portion of the judgment below from which an appeal is taken relates to a finding and conclusion that the provisions of the will bequeathing certain gifts to charities are invalid by reason of the fact that the will was executed within one year prior to testator’s death. Appellees contend that this question does not involve the construction of the- trust, and only questions, of law are involved in the appeal.

An examination of the .petition discloses that the executors asked the advice and instructions of the court concerning numerous questions relating to the rights of various persons as income beneficiaries of the trust, the rights, powers and duties of the executors as well as the trustees in the administration of and distributions from the trust, and the rights and powers of the trustees to determine t.he persons entitled to receive the trust income. It is apparent that the executors as well as the trustees (who intervened) asked advice and instruction concerning matters involving the trust which presented equitable issues for determination by the Probate Court.

For the purpose of deciding the motion, it is unnecessary for this court to determine whether the question of the validity of these charitable gifts presents a question of law or one in equity. The instruction sought with respect to that particular question was included with a number of instructions relating to the administration of the trust. Since the petition, to a major extent, calls for the determination-of equitable questions, the action was and remains one-in chancery.

“A court of equity having jurisdiction of a case will retain jurisdiction of all issues therein, even-though part of them are legal, and administer full relief, both legal and equitable, so far as it pertains to-the same transaction or subject matter.” Clark v. Clark, supra, 656.

Even though the appeal may call for the determination only of questions of law, the filing of the notice-of appeal on questions of law and fact in a chancery case below appeals the entire case.

The motion is, therefore, overruled.

Motion overruled.

Conn, P. J., and Carpenter, J., concur.