text:
    DeHart, Admx., Appellee, v. The Ohio Fuel Gas Co., Appellant.
    (No. 552
    Decided May 17, 1948.)

      Messrs. Young S Young, for appellee.

      Messrs. Eagleson & Laylin, Mr. Henry P. Huston and Mr. G. Ray Craig, for appellant.
   Carpenter, J.

In this action for the wrongful .death of plaintiff’s decedent, Edwin C. DeHart, a judgment for $12,000 against the defendant, The Ohio Fuel Gas Company, was the occasion for this appeal on questions of law.

From the facts alleged in the pleadings and those later established in the trial, it appears that in the summer of 1930 DeHart was employed by a contractor who was engaged in paving several streets in the village of Crestline, Ohio. In preparation for the paving, a power shovel was used in grading the streets. As the shovel scooped up the earth and swung it over the haul-away trucks, it was DeHart’s work to trip the scoop with a rope and dump the contents into the truck..

In the street there were two gas lines of the defendant. One was a pipe, four inches in diameter and called a medium pressure line, carrying natural gas at a pressure of about ten pounds to the square inch. The other line carried a pressure of five ounces per square inch, and from it there were one-inch service lines leading into the residences and business places served by the defendant.

In the course of the grading, these pipes, especially the service lines, were occasionally bfioken, and the defendant had a force of from 20 to 30 workmen standing by to stop the escaping gas by plugging the breaks and to repair the pipes. At noon these laborers were accustomed to spend one hour at lunch, some of them nearby, others away from the job. The paving men took but a half hour for their lunch period.

On August 4, while most of the defendant’s employees were still at lunch and their foremen were away, the grading work was resumed and the shovel pulled up and broke the ten-pound-pressure pipe. The gas could not be plugged in by the men then at hand, and before it could be shut off a spark from the nearby dirt truck ignited the escaping gas and an explosion occurred in which DeHart and the truck driver, Elmer Hough, were seriously burned. It is alleged that DeHart inhaled some of the flames and that he was permanently injured.

On May 16, 1932, DeHart commenced an action against the defendant in the Court of Common Pleas of' Richland county, Ohio, seeking damages for his injuries. He alleged that certain acts of the defendant, were negligent and caused his injuries. The judgment in that action was for the defendant, and no appeal was • taken from it.

Following this, DePIart developed tuberculosis and died February 12,1942. His widow was appointed administratrix of his estate, and on April 2, 1942, commenced this action in behalf of herself and three minor children. In her petition she alleged that her decedent’s death was caused by the negligent acts of the-defendant in connection with the gas explosion and fire. Those negligent acts were described in substantially the same terms as decedent alleged them in his-action against the defendant.

A general demurrer to the petition was overruled.. This action is assigned as one of the errors. As the le|>-al principles involved in this question are so closely related to those in a later action of the court in striking; from the amended answer the third defense, discussion of it will be had in that connection.

By its answer the defendant admitted the fiduciary-authority of the plaintiff, her dependence and that of' her children, and that there was an explosion and some ■ injury to decedent. It then denied all other allegations ■ of the petition.

As a second defense, it was alleged that the explosion and resulting damage to decedent was “due solely to the careless and negligent conduct and acts of' decedent and the operator of the power shovel.” On¡ motion of plaintiff this defense was ordered stricken. This was immaterial and was properly eliminated!. Montanari v. Haworth, 108 Ohio St., 8, 140 N. E., 319; Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44; Leopold v. Williams, 54 Ohio App., 540, 8 N. E. (2d), 476; Bickley v. Sears, Roebuck & Co., 62 Ohio App., 180, 23 N. E. (2d), 505; Hatsio v. Red Cab Co., 77 Ohio App., 301, 67 N. E. (2d), 553.

As a third defense in the amended answer, the judgment of the Richland county court in DeHart’s action for damages was alleged as a plea in bar to the instant action. On motion, such defense was stricken.

A second amended answer was limited to the admission as to the authority of plaintiff and defendant, a general denial and a charge of contributory negligence. On these issues the cause was tried to a jury. ■

The first assignment of error combines the overruling of the demurrer to the petition and the striking of the plea in bar.

Both such orders challenge attention to the nature of the death action and the personal injury action and their relation to each other.

The right of action for wrongful death had its origin in Lord Campbell’s Act in 1846. The act has been adopted in various forms in all the states. It was adopted in Ohio in 1851 (49 Ohio Laws, 117) in nearly the same form as the English statute, and is now expressed in Sections 10509-166 and 10509-167, General Code, the material parts of which are as follows:

Section 10509-166. “When the death of a person is caused by wrongful act, neglect or default such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, the corporation which, or the person who would have been liable if death had not ensued, * * * shall be liable to an action for damages, notwithstanding the death of the person injured,

Section 10509-167. “An action for wrongful death must be brought in the name of the personal representative of the deceased person, but shall be for the exclusive benefit of the surviving spouse, the children and other next of kin of the decedent.

“The jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought. Except as otherwise provided by law, every such action must be commenced within two years after the death of such deceased person. * * *’’

Concerning this type of action, tomes have been written in judicial decisions, by text writers and annotators. In the last class alone we have L. R. A., 1915E, 1100; 39 A. L. R., 579; 72 A. L. R., 1313; 99 A. L. R., 259 and 167 A. L. R., 894. From these we see that there are varying applications made of the statute. This is due in some measure to differences in the language used in the statutes, which give rise to different conclusions. However, in jurisdictions where the statute is like ours, which follows closely the original Lord Campbell’s Act, there are two distinct lines followed in the decisions. One of these is to the effect that the death action is but a continuation of the decedent’s right of action for conscious pain and suffering and settlement or adjudication (either favorable or unfavorable) of the personal injury action or its bar by lapse of time defeats the death action. The other line is that the death action is an entirely new right of action which does not arise until the death and is for the benefit of decedent’s dependents and is not affected by what he may have done, or what may have happened to his right of action.

Lord Campbell’s Act was prompted by a humane purpose,- to relieve the real victims of the death of the austere rule of the common law that whatever rights existed against the wrongdoer died with the injured person. This seems to be the spirit adopted by the courts of Ohio and many other states as they have adopted the latter line in the application of the statute. It is indeed a realistic viewpoint of the problem, which the courts of Ohio have followed with increasing clarity as time has developed adjudications of varying fact situations. In Mahoning Valley Ry. Co. v. Van Alstine, Admr., 77 Ohio St., 395, 83 N. E., 601, 14 L. R. A. (N. S.), 893, a recovery by the decedent in her lifetime was pleaded in bar of the death action. That defense was denied and the decisions in Ohio and other jurisdictions to that time, 1908, were considered. That case was followed in Cincinnati Traction Co. v. Ginnochio, Admr., 87 Ohio St., 511, 102 N. E., 1120. In May Coal Co. v. Robinette, Admr., 120 Ohio St., 110, 165 N. E., 576, 64 A. L. R., 441, a judgment of this court in Robinette, Admr., v. May Coal Co., 31 Ohio App., 113, 166 N. E., 818, was affirmed. There a judgment adverse to the administrator in the survivorship action for conscious pain and suffering of decedent was pleaded in bar to the death claim. That plea was rejected. The separate character of the two actions, and the difference in parties were pointed out in Gorman, Admx., v. Columbus & Southern Ohio Electric Co., 144 Ohio St., 593, 60 N. E. (2d), 700, wherein a deposition taken by decedent in his action was held not admissible in the death action.

Again, this court in Phillips, Admx., v. Community Traction Co., 46 Ohio App., 483, 189 N. E., 444, had before it a death claim where the decedent had settled with the defendant for her damages and this did not bar the cause of her children. A motion to certify the record was overruled by the Supreme Court. To the same effect is Maguire, Admx., v. Cincinnati Traction Co,, 14 C. C. (N. S.), 431, 23 C. D., 24, the judgment in which was affirmed without opinion in 87 Ohio St., 512, 102 N. E., 1121. The Van Alstine case was cited and followed.

It is contended that this results in a double recovery. This is not true. The injured person could only release his claim, which could only extend to his death, or that which might survive it under Section 11235, General Code. The rights of the next of kin begin where those of the injured person end, and are rights over which he could have no control.

In support of its demurrer to the petition, the defendant urges that the statute of limitations had barred the right of DeHart “to maintain an action and recover damages,” two years from his injury, hence, under Section 10509-166, General Code, in 1942 this plaintiff had no right of action. In support of this contention it cites Solar Refining Co. v. Elliott, Admx., 15 C. C., 581, 8 C. D., 225, which was decided in 1898, before the Van Alstine and later cases.

The' Supreme Court does not seem to have spoken on this particular question except indirectly by overruling a motion to require the Court of Appeals of the Third Appellate District to certify its record in the unofficially reported case of McKee, Admx., v. New Idea, Inc., 36 Ohio Law Abs., 563, 44 N. E. (2d), 697. The court correctly pointed out that the comments of the court in the Solar Refining Co. case on the subject of limitation of actions was obiter, and it proceeded to follow the decisions cited above. The Solar Refining Go. case was decided by the same Circuit Court which decided the McKee case.

It is of interest to note that our Wrongful Death Act contains three time limitations. Under Section 10509-166, General Code, in a part not quoted above, if the action is based on a wrongful act in another state, the limitations of that state shall apply; and in Section 10509-167, General Code, “except as otherwise provided,” a two-year limitation is laid down. Then, when these sections were re-enacted in the revision of the Probate Code of 1932, a new section was added (Section 10509-169) in which the same provision is made as in the general section (Section 11233, General Code) for a one-year extension of time in case of reversal or “if the plaintiff fail, otherwise than upon the merits.” These carefully drawn limitations are in harmony with the principles so clearly established in the above-cited cases to the effect that the right to bring a wrongful death action is an entirely new right created in the interest of the victim of the wrong that caused the death, and that it has its beginning with the death.

Confronted, as it was, with this array of decisions by the Supreme Court and this court, the trial court had no alternative but to overrule the demurrer to the petition and strike the plea in bar from the amended answer.

One of the specifications of negligence in the petition was “that said defendant gave no warning whatever to this plaintiff’s decedent of the presence of said natural gas in said pipes and excavation.” By an instruction to be given before argument, the defendant asked the court to withdraw this allegation from the consideration of the jury for the reason that “there was no evidence that such notice was not given.” The request was refused and the refusal is assigned as error. The testimony of the witness, Edwards, who was the job foreman of the paving contractor, supports the ■court’s ruling. Speaking of the information given by the defendant’s foreman on the job, Edwards testified:

“Q. If you had known there was a four-inch main there, would you have used the shovel over that place where the main was? A. I would not.

“Q. Did this gas company foreman tell you there was such a main as that in there? A. No, I had no idea of it.

“Q. Did he tell you there was such a main there? A. No.”

Substantial evidence was received tending to prove that DeHart was ill and disabled from the time of the accident to his death, and that his injuries caused his. death. The plaintiff and the attending physician at the death testified to this. In addition to this evidence, plaintiff offered and the court admitted, over defendant’s objections, photostatic copies of two records of the Industrial Commission of Ohio. One was. of a record made in 1939 in which the commission found DeHart still disabled and it continued compensation. The other was the order allowing a death claim.

The court has concluded that these were irrelevant and incompetent and should not have been received,, but, from a survey of the whole record on this subject, that the defendant was not prejudiced by them.

The only other error assigned is that the judgment was against the weight of the evidence, which contention is not sustained. Shortly after this accident, Elmer Hough, the driver of the truck the spark from which ignited the gas, brought and successfully maintained an action against the defendant for his personal injuries. This court affirmed that judgment, expressly finding it was not against the weight of the evidence. From the unreported opinion of Judge Richards, it appears that the evidence as to negligence was substantially the same as in this record.

As we find no error prejudicial to the defendant, the judgment is affirmed.

Judgment affirmed.

Conn and Fess, JJ., concur.


source: Caselaw Access Project

author: Skeel, J.

license: Public Domain

text:
    Uhinck, Appellee, v. Boyle, Treas., Appellee; Klonowski, Appellant.
    (No. 21044
    Decided November 8, 1948.)

      Messrs. Locher, Woods, Lausche £ Wilmot, for appellee Bernice Uhinck.

      Mr. Frank T. Cullitan, prosecuting attorney, for appellee John J. Boyle, county treasurer.

      Mr. James C. Maher, for appellant.
   Skeel, J.

This action comes to this court on appeal •on questions of law from a judgment in favor of the plaintiff, appellee, entered by the Court of Common Pleas of Cuyahoga county.

The plaintiff was the owner of Sublot No. 601 in the Clayton C. Townes Company’s Orchard Acres Subdivision No. 4, of part of Original Lots Nos. 4, 6 and 21 in the City of Parma Heights, Ohio. The taxes and special assessments- in the total sum of $1,533.15 became delinquent on or before December 28, 1945. Because of such delinquency in the payment of the general taxes and special assessments due on the lot, it was ordered forfeited on December 28, 1945, by the-Court of Common Pleas in a proceeding as provided by Sections 5718, 5718-1, 5718-la, 5718-16 and 5718-le,. General Code. On March 15, 1946, while the proceeding to sell the lot as forfeited land, as provided by Sections 5751 and 5752, General Code, was pending, the-plaintiff filed an action in the Common Pleas Court of Cuyahoga county seeking to enjoin the collection of the special assessments levied against the lot, for the reason that the necessary procedural steps had not been-complied with in levying such special assessments. Upon hearing the court on April 24, 1946, enjoined' the collection of such assessments. The finding that the special assessments had been illegally assessed reduced the amount of the delinquent taxes, penalties and interest due on the lot to $350. The county auditor failed to note the injunction against the collection of such special assessments and proceeded to advertise and sell such property as forfeited lands.

On June 12, 1946, the property was sold by the county auditor to defendant Stanley Klonowski, the highest bidder, for $800, and upon payment of the purchase price to the county treasurer a certificate of sale of forfeited lands was issued to Klonowski.

On August 27, 1946, the plaintiff demanded of the county treasurer a tax bill showing the correct balance of taxes due, and tendered payment, which request and1 tender were refused. The instant action was then in•stituted seeking to enjoin the county auditor from completing the sale of the property to defendant Stanley Klonowski, and to compel the county treasurer to issue .a bill for the taxes, penalties and interest due and permit the plaintiff to redeem her property by paying the amount legally due.

The Common Pleas Court issued a temporary injunction preventing further proceedings by the county auditor to sell the lot as forfeited land. Upon final hearing a decree was entered enjoining the sale of the lot to the defendant Stanley Klonowski and directing the county auditor to vacate such sale. The decree further provided that the plaintiff be permitted to redeem her property upon the payment of the amount of the taxes so found to be legally due and ordered returned to Stanley Klonowski $800, the amount deposited by him with the county treasurer under the forfeited land sale proceeding.

It will be noted that in the proceeding to sell the lot of the plaintiff as forfeited land, the deed had not been issued to the purchaser, Klonowski, at the time the county officials were enjoined from proceeding further in such forfeited land sale proceeding.

We are, therefore, presented with two questions: First, whether the county auditor had the right to proceed with the sale after the county was enjoined from collecting the special assessments charged against the lot, and, second, whether the county auditor’s sale of plaintiff’s lot as forfeited land had proceeded far enough to divest her of title, so that she would be precluded from redeeming the lot by paying the taxes then legally due.

It should be noted that, after the court had determined that all the special assessments were illegally charged against the lot and enjoined their collection, the amount of delinquent taxes, penalties and interest was reduced to an amount far below the then appraised value of the lot of $800. Therefore, the sale of the lot as forfeited land should have been stopped by the county auditor at that point.

Section 5718-1, General Code, in part provides: “Before making the certificates provided for in Section 5718 of the General Code, the county auditor shall submit the list of lands on the delinquent list and subject to foreclosure to the county board of revision, and if, in its judgment and discretion, such board is of the opinion that such list contains property or properties so certified which will not bring upon a sale a sufficient amount of money to pay the total amount charged against it on the tax duplicate, together with the costs of foreclosure, such board may order the same to be omitted from the foreclosure proceedings hereinafter provided; and as to such land so ordered to be omitted, no delinquent land tax certificate shall be made * * *.”

It is, upon the agreed facts, clear that the value of the lot was far in excess of the taxes then legally due and delinquent and the reasonable cost of foreclosure. Section 5746, General Code, provides:

“If the former owner of a tract of land or town lot, which has been so forfeited, at any time before the state has disposed of such land, or lot, shall pay into the treasury of the county in which such land or lot is situated, all the taxes, assessments, penalties and interest due thereon at the time of such payment, the state shall relinquish to such former owner or owners, all claim to such land or lot. The county auditor shall then re-enter such land or lot on his tax list, with the name of the proper owner.” (Italics ours.)

Foi-feitures are not favored under the law, and, therefore, the foregoing statute should be construed liberally in favor of an owner whose land is being sold under this and the other statutes providing for the sale of forfeited land.

Section 5762, General Code, provides in part:

“When a tract of land has been duly forfeited to the state and sold agreeably to the provisions of this chapter, the conveyance of such real estate by the county auditor shall extinguish all previous title thereto and invest the purchaser with a new and perfect title.’’

In other words, forfeited lands are not “disposed of” under Section 5746, General Code, until there has been a conveyance under Section 5762, General Code. The certificate provided for by Section 5762 does not convey the title to the property to the purchaser at a forfeited land sale. The certificate is simply evidence that he was the highest bidder entitling him to a deed for the property. Upon this point that section provides :

“The county auditor on making a sale of a tract of land to any person, under this chapter, shall give such purchaser a certificate thereof. On producing or returning to the county auditor the certificate of sale, the county auditor, on payment to him by the purchaser, his heirs, or assigns, of the sum of one dollar and twenty-five cents shall execute and deliver to such purchaser, his heirs, or assigns, a deed therefor, in due form, which deed shall be prima facie evidence of title in the purchaser, his heirs, or assigns.”

We conclude, therefore, first, that the auditor was without authority to proceed with the forfeited land sale after the special assessments had been found to be illegally assessed, thus reducing the amount of taxes due far below the value of the lot, and, second, for the reason that until the county ■ auditor delivered his deed for property bought at a forfeited land sale the property had not been “disposed of,” and until Such deed was delivered to the purchaser the owner of such land may redeem the same by paying the taxes,, penalties and interest then legally due, as provided by law.

For the foregoing reasons, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Hurd, P. J., and Nichols, J., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.


author: Hunsicker, J.

text:
    Lupi et al., Appellees, v. Flack, Appellant. Lupi et al., Appellees, v. Shilke, Appellant.
    (Nos. 21194 and 21198
    Decided October 18, 1948.)

      Mr. Paul Mancino, for appellees.

      Mr. Gerald A. Doyle, for appellants.
   Hunsicker, J.

In these appeals on questions of law the same problem is presented in each appeal and hence they are considered together.

The controlling facts, as they apply to each case, are as follows:

Nellie Lupi and Peter Lupi, plaintiffs, appellees herein, owners of a four-family apartment building, filed an action in the Municipal Court of Cleveland, in forcible entry and detainer, against Myron Flack, defendant, appellant herein, in case No. 21194, and a similar action against Charles Shilke, defendant, appellant herein, in case No. 21198. Plaintiffs, Lupi, alleged that they desired to make substantial alterations- and repairs to each of the suites occupied by defendants, which suites when completed they desire to occupy for themselves and their families. The notice to-leave the premises was served in each instance on May 17, 1948, requesting compliance with this notice by June 1, 1948. Defendants failed to comply with the notice and the actions in forcible entry and detainer were then filed.

The trial in the court below, before a jury, resulted in a verdict of guilty, and the following judgment was rendered thereon:

“June 18, 1948.

“The jury having returned a verdict of guilty herein, judgment is therefore rendered for plaintiffs and: for the costs of this proceeding.”

The Act of March 30, 1948, Public Law 464, 80th Congress, 2nd Session, subsection (c), as added to-Section 209, Rent Control Regulations, amended effective April 1, 1948, 50 U. S. Code, Appx. Sec. 1899 (c), reads as follows:

“No tenant shall be obliged to surrender possession-of any housing accommodations pursuant to the provisions of paragraph (2), (3), (4), (5), or (6) of subsection (a) until the expiration of at least sixty days-after written notice from the landlord that he desires to recover possession of such housing accommodations for one of the purposes specified in such paragraphs.”

The cause of action herein is based on one of the paragraphs specified above, to wit, Subsection (a), paragraph 4.

The principal question presented in the instant cases is: Is a landlord, who seeks to recover possession of premises, required to give a tenant, against whom he has a proper cause of action, a sixty-day notice to leave the premises before an action in forcible entry and detainer may be filed or may he file such action, as permitted by the Ohio statutes, after the giving of a three-day notice to leave the premises?

The only case brought to our attention bearing on the interpretation of this section of the Rent Control Regulations as it applies to the time in which the action to evict may be brought after notice to leave premises is given, is the case of Porea v. Moses, decided by the Louisiana Court of Appeals, Parish of Orleans, April 26, 1948, and reported in 35 So. (2d), 152.

The Court of Appeals in Louisiana says:

“A careful reading of the above quoted proviso of the act [Section 209, subdivision c] indicates that counsel endeavors to place a construction on the language used therein not contemplated by the Congress. If it was the lawmakers’ intention to require that a sixty-day notice must be served upon the tenant, and that an ejectment suit cannot be brought until the sixty-day period had expired, unequivocal language to that effect would undoubtedly have been ■employed. The section in question states that ‘no tenant shall be obliged to surrender possession * * * ■until the expiration of at least sixty days after written notice * * V (Italics ours.) It seems clear to us that the word ‘obliged’ as used is a synonym of the words * compelled,’ ‘forced’ and ‘required.’ The plain and reasonable meaning is that no tenant can be evicted until sixty days have expired counting from the date of the written notice, and that in any suit the judgment of eviction will not and cannot become operative or executory until sixty days after the notice to vacate had been served. There is nothing in the section which prohibits a landlord from bringing his proceeding against a tenant, after the notice required by local law, and all that the section intends is that under no circumstances can the tenant be ejected until sixty days after the vacate notice was served.” (Part in parentheses ours.)

We believe the reasoning of the Louisiana court to be sound and logical. The Congress did not seek to outline the procedural steps by which the right to secure a judgment of eviction is to be obtained. That procedure was left to the legislative body in each state. The federal legislation does not say that no action in forcible entry and detainer shall be filed by a landlord until after a sixty-day notice to the tenant is given, but it does say that the tenant cannot be dispossessed until sixty days after written notice to leave the premises is given.

A judgment of eviction should provide for such sixty-day period from the date of the notice. More than the necessary sixty-day period has elapsed in the instant case and hence it is not necessary that we remand for the purpose of modifying such judgment.

We have examined all other claimed errors and find none prejudicial. The judgment is affirmed.

Judgment affirmed.

Hurd, P. J., and Skeel, J., concur.

Hunsicker, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: Stevens, J.

text:
    Kepler et al., Appellants, v. Industrial Disposal Co. et al., Appellees.
    (No. 3893
    Decided March 8, 1948.)

      Messrs. Gottwald, Hershey d Hatch, for appellants.

      Messrs. Walker d Alpeter, for appellees.
   Stevens, J.

This proceeding came into this court as an appeal on questions of law and fact by the plaintiffs below, from a judgment denying an injunction sought by them.

Plaintiffs are the owners or occupants of various properties lying adjacent or in proximity to the premises owned and used by defendants as a site for disposing of industrial waste. The disposal is accomplished by burning.

The waste so burned consists of paper, wood, floor sweepings, rubber, and chemicals, naptha and grease used in the manufacture of rubber products, and originates at the plants of The B. P. Goodrich Company :a¡nd The General Tire & Rubber Company, in Akron.

The operation is carried out under the terms of a -contract whereby defendant Industrial Disposal Company is paid by the Goodrich company on the basis -of the amount of waste material delivered by Goodrich to defendant for disposal, and under a contract with The General Tire & Rubber Company, the terms of which do not appear in the evidence.

Incident to the burning of the materials so delivered, there arise, from the burning pits, smoke and odors, which are claimed by plaintiffs to be noxious, offensive, and which, dependent upon wind direction and velocity, and general weather conditions, at times envelop plaintiffs’ properties so as to make their occupancy disagreeable, and sometimes impossible.

Plaintiffs were residents of the area in question before the defendant company started its operations in November, 1946, and the area may be said, from the evidence, to be an agrarian residential community.

There are in this case no questions of laches or estoppel, for plaintiffs promptly objected to defendants’ operations, and in less than two months from the outset thereof instituted the present action.

Defendants have not made any large investments in equipment by reason of plaintiffs’ failure to act promptly.

The business conducted by defendants is not one tinged with a public interest, as is the case with a disposal plant or garbage incinerator, but is conducted solely for defendants’ financial benefit.

The question presented is: May the defendant company, in the conduct of a business which in and of itself is perfectly lawful, so conduct that business as to cast smoke, soot, ashes and odors upon the properties of its neighbors, at frequent intervals, in such amounts and of such intensity as to make the occupancy of the neighbors’ properties not only disagreeable, but sometimes impossible, without subjecting itself to injunctive intervention?

The answer to the above question, of course, involves a determination of whether or not the activities of the defendants constitute the maintenance of an actionable nuisance.

The rule to be drawn from examination of the various authorities on the subject of nuisance is rather tersely stated in 39 American Jurisprudence, Nuisances, Section 54, as follows:

“* * * To constitute smoke a nuisance, the annoyance and inconvenience suffered must be of a substantial character, and must be such as to produce actual, tangible, and substantial injury to neighboring property itself, or such as to interfere sensibly with its use and enjoyment by persons of ordinary sensibilities. But it is not essential that it should be emitted continuously; it may constitute a nuisance although occasioned only at intervals.” (Italics ours.)

The rule as to fumes and gases, and stenches and smells, is substantially the same as the rule stated, above. In order to constitute nuisances, they must, result in “a material injury to the comfort of the owner of adjacent property and his family.” Ibid., Section 59.

So, too, has the rule been stated by the Supreme Court of Ohio in Eller v. Koehler, 68 Ohio St., 51, at page 55, 67 N. E., 89:

* * it has always been the law that in order to-subject one to an action for nuisance the injury must be material and substantial. It must not be a figment of the imagination. It must be tangible.”

In the instant case, the members of this court are in-unanimous agreement -that the operation of defendants’ business, as it is shown by the evidence to be operated, does give rise to' conditions which not only are nuisances, but actionable nuisances. There is shown substantial injury to the owners and occupiers of surrounding property, which interferes sensibly with their use and enjoyment of their respective abodes, they being persons of ordinary sensibilities; and the injury is of such character as to be incapable of being compensated by an award of damages. The-injury is therefore irreparable, and plaintiffs have no adequate remedy at law.

From this evidence we conclude that plaintiffs have clearly shown that an actionable nuisance is maintained by defendants, and that the plaintiffs are entitled to the relief which they seek.

A ■ decree in accordance with this finding may be prepared.

Decree accordingly.

Doyle, P. J., and Htjnsicker, J., concur.


author: Doyle, P. J.

text:
    Seabold, Appellee, v. Seabold, Gdn., et al., Appellants.
    (No. 1172
    Decided May 12, 1948.)

      Messrs. Keep & Schols, for appellee.

      Messrs. Myers, Horan & Ashenbach and Mr. Frank E. Stevens, for appellants.
   Doyle, P. J.

The action here on appeal from the Court of Common Pleas of Lorain county was brought by the appellee herein, Julia Seabold, under authority of the Uniform Declaratory Judgments Act (Section 12102-1 et seq., General Code), to have declared “that the marriage contract between herself and * * * Edward Anthony Seabold * * * constituted a valid and legally binding marriage upon both of the parties thereto, and that by reason thereof she became the lawfully wedded wife of the said Edward Anthony Sea-bold * *

It appears in the pleadings and the evidence that Edward Anthony Seabold in 1935 was committed to the Toledo State Hospital for the mentally ill, following an adjudication in the Probate Court of Lorain county that he was an incompetent person; in 1938 he was released from the hospital on a “trial visit” and returned to his home in Elyria; in 1939, his brother,. Carl Seabold, was appointed by the Probate Court to-be guardian of his person and estate; in 1940 he entered into a marriage contract with Julia Nagy, and they were ceremonially married in the city of Covington, Kentucky, under authority of a license there obtained from the public official in charge; they lived together as husband and wife until April, 1942, when he returned to the state hospital for treatment; in-June, 1942, he was again released and resumed a. marital relationship until July, 1943, when he again returned to the hospital, where he remained until his release in November, 1943; on February 24, 1944, he was taken back to the institution, where he has been since confined.

It was claimed by the wife that an uncertainty has been cast upon the validity of her marriage, for the reason that her husband was under guardianship at. the time of their marriage, and that through this uncertainty she is placed in a position of peril and insecurity; that “her status as the lawful wife of the said Edward Anthony Seabold is uncertain and undetermined, and might later lead to a controversy between the parties or their heirs * * * unless the matter is settled by this court * *

Issues were joined by the respective answers of the-guardian of the ward, Seabold, and his various children by a former marriage.-

At the conclusion of the trial, in which many witnesses were heard on the question of the mental capacity of the ward at the time of the marriage, the court found that the parties had entered into a valid and subsisting marriage. From that judgment the present appeal, on questions of law, has been taken.

Section 12102-1 et seq., General Code, authorize the rendition of declaratory judgments. By virtue of authority therein granted, a declaratory judgment may be resorted to when it will serve some practical' end in quieting or stabilizing an uncertain or disputed' jural relation, growing out of a ceremonial marriage,, when the competency of one of the parties to enter into such a relationship is in dispute.

It is asserted that, under Ohio law, the ward,. Seabold, was incompetent to enter into a valid contract of marriage, because of the provisions of Section 1890-68, General Code (as in force in 1940, the-year of the marriage). This section in part provided:.

“Excepting a sane epileptic, or a patient upon voluntary admission, no patient in an institution as defined in section 22 of this act [Section 1890-22, General1 Code] or a patient on trial visit therefrom, shall1 be competent to enter into any agreement or execute a contract, deed or other instrument unless it has been approved and allowed by the court committing him. to the institution by an order entered on the journal ■of said court.”

It is held generally in this country that the validity ■of a marriage is determined by the lex loci contractus. This rule generally includes as an integral part thereof the capacity of the parties to contract. Courtright v. Courtright, 11 Dec. Rep., 413, 26 W. L. B., 309, affirmed, Courtright v. Scringem, 53 Ohio St., 685, 44 N. E., 1134; Peefer v. State, 42 Ohio App., 276, 182 N. E., 117; 32 Ohio Jurisprudence, Private International Daw, Section 62 et seq.

There are certain exceptions, however, to the general rule in respect to the capacity of the parties — to wit:

“Except as stated in Sections 131 and 132, a marriage is valid everywhere if the requirements of the marriage law of the state where the contract of marriage takes place are complied with.

‘ ‘ Comment:

*****

“e. * * * the law of the state in which the marriage is celebrated, governs the validity of the marriage in regard to:

* * * ‘ * *

“5. the capacity of the parties to enter into the contract of marriage.”

Restatement of the Law, Conflict of Laws, 185, 186, Section 121.

The exception in Section 131, referred to in the above-quoted part of the Restatement of the Law, has no application to the instant case. However, Section 132 makes a marriage invalid, even though entered into in another state, if a statute in the domicile state makes such marriage void.

The question then arises: Does Section 1890-68, General Code, supra, or any other section of the statutes of Ohio, make a marriage void by reason of the fact that one of the parties to the marriage agreement is under guardianship or is on trial leave from a mental institution established under authority of the state of Ohio?

In our search of the statutes, we find none. Certainly Section 1890-68, General Code, does not make such a marriage void. It does not attempt to give any extraterritorial operation to its provisions by a declaration that a marriage entered into in a sister state, in violation of its terms, shall be void. In the absence of an express prohibition, a marriage, even though in violation of the statutes of this state, is valid in this state if it was valid where contracted, unless it con-travenes the declared public policy of this state as set forth in Section 131 of the Restatement of the Law, supra.

This conclusion brings us, then, to the next problem. Do the facts here presented justify a finding that the marriage was valid in Kentucky ? Because, if it was invalid there, it is invalid in Ohio.

Section 2097 of the Kentucky statutes, in force in 1940, in part provided:

“Marriage is prohibited and declared void:

“1. With an idiot or lunatic.”

This statute declares the rule of the common law, and its principles have been traditionally followed in Ohio in numerous cases, on the theory that “Marriage is a contract relation founded in the mutual consent of the parties; on which account consenting capacity is essential to its consummation. Consequently the want of such capacity, in either party, renders the relation meretricious, not matrimonial. Such is the immemorial and universal judgment of civilized society. * * * Hence, the marriage of parties, either of whom lacks the capacity to consent, is ineffectual and void ab initio." Waymire, Gdn., v. Jetmore, 22 Ohio St., 271, at page 273. The state of Kentucky likewise shares with Ohio this view of the law of marriage.

If, however, a person who is mentally ill, fully comprehends the nature and consequences of his or her act in getting married, the marriage is valid.

“In determining whether one has mental capacity sufficient to contract a valid marriage, the test usually applied is whether there is a capacity to understand the nature of the contract and the duties and responsibilities which it creates.” Gellert v. Busman’s Admr., 239 Ky., 328, at page 331, 39 S. W. (2d), 511.

It also appears in this decision of Kentucky’s highest court that the marriage under consideration was held valid even though at the time of its commencement one of the parties was subject to an adjudication of insanity.

Although it is not important here for this decision, it is interesting to note that the rule in Ohio is the same.

“Guardianship, coupled with a decree of lunacy, is prima facie evidence of the incapacity of the ward to contract marriage, but such an adjudication is not ■conclusive, and guardianship does not of itself render the marriage contract void.” 26 Ohio Jurisprudence, Marriage, Section 50.

Applying to the facts of this case the law of Kentucky as we find it to be, and the law of Ohio in so far as applicable, we do not find that the judgment of the Court of Common Pleas is contrary to law or is manifestly against the weight of the evidence. The trial court was empowered to weigh the conflicting evidence and the presumptions. That court was the trier of the facts. We find its judgment to be within the limits of its authority.

From a consideration of all of the other errors claimed, we find none to be of a prejudicial nature.

Judgment affirmed.

Stevens, J., and Hunsicker, J., concur.


author: Matthews, P. J.

text:
    Mallow, Appellee, v. Mallow, Appellant.
    (No. 6937
    Decided March 22, 1948.)

      Mr. Carson Hoy, for appellee.

      Mr. John M. Renner, for appellant.
   Matthews, P. J.

This is an appeal from an order-modifying a final judgment for alimony payable in instalments. The divorce was granted to the wife because of the aggression of the husband and he was ordered to pay $11 per week. The order appealed' from reduced the alimony to $8 per week.

The bill of exceptions discloses that no substantial. change had taken place in the earning capacity and financial condition of the husband since the award of $11 per week was made. Neither had there been any substantial change in the situation of the wife. The only change materially affecting the husband’s ability to pay results from his subsequent remarriage.

The appeal, therefore, presents the question of whether the remarriage authorizes the reduction of the award.

By the great weight of the authorities, the remarriage of the husband furnishes no basis for a change in an alimony decree theretofore entered. Myers v. Myers, 62 Utah, 90, 218 P., 123, 30 A. L. R., 74; Cropsey v. Cropsey, 104 N. J. Eq., 187, 144 A., 621, 64 A. L. R., 1266; Kirkbride v. Van Note, 275 N. Y., 244, 9 N. E. (2d), 852, 112 A. L. R., 243, at 246 et seq., and the Ohio case of Nash v. Nash, 77 Ohio App., 155, 65 N. E. (2d), 728, the second paragraph of the syllabus to which is as follows:

“The changes in the circumstances of the parties that may be considered in such a request for modification, must be material and not purposely brought about by the complaining party, and must be considered on the basis that the judgment sought to be modified was proper when made.”

As no change in conditions justifying a modification of the alimony was shown, the order appealed from is reversed.

Order reversed.

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


author: By the Court.

text:
    The State of Ohio, Appellee, v. Moore, Appellant.
    (No. 1992
    Decided November 18, 1948.)

      Mr. Irvin Carl Delscamp, for appellee.

      Mr. Walter L. Connors, for appellant.
   By the Court.

The cause is submitted on motion of appellee to dismiss the appeal for failure to comply with the provisions of Section 13459-3, General Code, in that appellant failed to file his brief with the transcript.

The provisions of Section 13459-3, General Code, are mandatory and a motion to dismiss the appeal will be sustained for failure to comply therewith. State v. Trimmer, 80 Ohio App., 545, 547, 76 N. E. (2d), 896; State v. Jarcho, 65 Ohio App., 417, 30 N. E. (2d), 444; State v. Parnell, 56 Ohio App., 77, 10 N. E. (2d), 18; State v. Bell, 52 Ohio App., 11, 2 N. E. (2d), 786; State v. Davis, 47 Ohio Law Abs., 415; State v. Barber, 44 Ohio Law Abs., 381, 65 N. E. (2d), 669; City of Columbus v. Balzan, 38 Ohio Law Abs., 141, 49 N. E. (2d), 592; State v. Smith, 33 Ohio Law Abs., 612, 35 N. E. (2d), 968.

Motion to dismiss the appeal is sustained.

Motion sustained.

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


text:
    Wells et al., Appellees, v. Friend et al., Appellants.
    (No. 1991
    Decided December 1, 1948.)

      Messrs. Harslvman & Young and Mr. Mason Doug'ilass, for the motion.

      Messrs. Beigel é Mahrt, contra.
   By the Court.

This appeal is submitted on motion •of plaintiffs, appellees herein, to dismiss the appeal for failure to file assignments of error and brief with-in 50 days after filing notice of intention to appeal on •questions of law, as required by Rule VII of the Courts •of Appeals.

The motion to dismiss is supported by the record .and it is hereby sustained.

Motion sustained.

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


text:
    The State, ex rel. Moore, Appellant, v. Smith, Sheriff, Appellee.
    (No. 1993
    Decided November 18, 1948.)

      Mr. Walter L. Connors, against the motion.

      Mr. Irvin Carl Delscamp, for the motion.
   By the Court.

This cause is submitted on motion of appellee to dismiss the appeal for failure to comply with Rule VII of the Courts of Appeals.

Where the appellant has failed to file a bill of exceptions, assignments of error and brief within 50 days after filing of notice of intention to appeal on questions of law, a motion to dismiss the appeal will be sustained. Section 12223-21, General Code; Anderson v. Indus. Comm., 135 Ohio St., 77, 19 N. E. (2d), 509; Parrett v. Parrett, 42 Ohio Law Abs., 413, 60 N. E. (2d), 736; Lair v. Lair, 33 Ohio Law Abs., 544, 35 N. E. (2d), 850; Tucker v. Fergus, 30 Ohio Law Abs., 508; Fulkerson v. Roxanna Canning Co., 26 Ohio Law Abs., 607.

The motion ix> dismiss the appeal will be sustained.

Motion sustained.

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


text:
    Maxwell Finance Co., Appellee, v. Morton Show Case Co., Appellee; Whiteneck et al., Appellants.
    (No. 2030
    Decided December 1, 1948.)

      Messrs. Harshman & Young, for appellee Maxwell Finance Company.

      Messrs. Shaman, Winer <3 Shulman, for appellee Morton Show Case Company.

      Messrs. Jacobson & Durst, for appellants.
   By the Court.

The cause is submitted on motion of plaintiff, an appellee herein, to dismiss the appeal for failure to file assignments of error, brief and bill of exceptions, within 50 days after filing notice of intention to appeal on questions of law, as required by Rule VII of the Courts of Appeals.

The motion to dismiss is supported by the record and it is hereby sustained.

The judgment is affirmed.

Appeal dismissed.

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


text:
    Bussard, Appellee, v. Kennedy et al., Appellants.
    (No. 2023
    Decided November 11, 1948.)

      Mr. C. J. Stoecklein, for appellee.

      Mr. D. H. Wysong, for appellants.
   By the Court.

This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal on ■questions of law and fact. The only question involved is whether the Common Pleas Court of Montgomery county erred in affirming the judgment of the Municipal Court of Dayton, in a civil action for money only.

Obviously an appeal on questions of law and fact does not lie. The motion to dismiss the appeal on questions of law and fact is sustained. The case will be retained as an appeal on questions of law.

The record discloses that a bill of exceptions has been settled in the trial court and, also, has been filed prematurely in this court. The court allows defendants, appellants herein, ten days from the date of the ■entry journalizing this decision within which to refile the bill of exceptions in this court, and the same time is given within which to file their assignments of error and brief. The plaintiff is given ten days after the date of the filing of briefs by defendants within which to file an answer brief; and the defendants are given five days after the date of the filing of the answer brief within which to file a reply brief, should they desire to do so.

Counsel will draw the proper entry.

Judgment accordingly.

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


text:
    Wysong, Appellant, v. Bussard, Appellee.
    (No. 2024
    Decided November 11, 1948.)

      Mr. D. H. Wysong, against the motion.

      Mr. C. J. StoecJdein, for the motion.
   By the Court.

This cause is submitted on motion of the defendant, appellee herein, to dismiss the appeal on questions of law and fact.

The order appealed from is a judgment on the verdict of the jury returned in favor of the defendant in a civil action for money only. Obviously this is not a chancery action, and an appeal on questions of law and fact does not lie. The motion to dismiss the appeal on questions of law and fact is sustained. The case will be retained as an appeal on questions of law.

The plaintiff, appellant herein, is allowed 30 days from the date of journalizing this decision within which to prepare and settle in the trial court his bill of exceptions, and ten days after the bill of exceptions is settled in the trial court within which to file in this court his bill of exceptions, assignments of error and brief. The defendant is given ten days after the date of filing of brief of plaintiff within which to file answer brief; and plaintiff is given five days after the filing of the answer brief within which to file a reply brief, should he desire to do so. *

Motion sustained.

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


text:
    Kohler, Appellant, v. Sears, Roebuck & Co., Appellee.
    (No. 2017
    Decided October 12, 1948.)

      Messrs. Pickrel, Schaeffer db Ebeling, for appellant.

      Messrs. Harshman db Young, for appellee.
   By the Court.

This cause is submitted on motion of defendant, appellee herein, to dismiss the appeal on questions of law and fact on the ground that plaintiff, appellant herein, has not filed an appeal bond as required by Section 12223-6, General Code, and on the additional ground that the matter is not appealable on questions of law and fact.

The record shows that the appeal bond which is required to be filed under the provisions of Section 12223-6, Genera] Code, in order to perfect an appeal on questions of law and fact has not been filed.

The action is one at law for the recovery of money only, and not an action in chancery.

The motion to dismiss the appeal upon questions of law and fact is hereby sustained on both grounds. Under the provisions of Section 12223-22, General Code, whenever an appeal on questions of law and fact is dismissed, the case shall stand for hearing on appeal on questions of law.

The plaintiff is granted 30 days within which to prepare, settle, and file a bill of exceptions, and, also, file assignments of error and brief. Section 11564, General Code.

An entry may be drawn accordingly.

Judgment accordingly.

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


author: Bn the Court.

text:
    Nickerson, Appellee, v. Nickerson, Appellant.
    (No. 2027
    Decided November 29, 1948.)

      Mr. Irvin Carl Delscamp, for the motion.

      Mr. Gus W. Byttner, contra.
   Bn the Court.

This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal on the ground that the defendant, appellant herein, failed to file an appeal bond as required by law. This is an appeal on questions of law and fact. The failure to file an appeal bond as required by Section 12223-6, General Code, does not require the dismissal of the appeal. Under Section 12223-22, General Code, when an appeal on questions of law and fact is dismissed, the appeal shall stand for hearing on questions of law. However, the appeal on questions of law and fact will be dismissed.

Under the provisions of Section 11564,’ General Code, this court is now required to make an order relative to the time within which the bill of exceptions shall be filed. Accordingly, this court allows the defendant 30 days from the date of the entry journalizing this decision within which to prepare and settle in the trial court a bill of exceptions. The court further orders that the defendant shall be required to file such bill of exceptions in this court within ten days after it is settled in the trial court. The defendant is allowed 50 days from the date of the entry journalizing this decision within which to file his assignments of error and brief in this court. The plaintiff will be allowed 15 days after the filing of defendant’s brief within which to file an answer brief, and the defendant will be allowed ten days thereafter within which to file a reply brief, if he desires to do so.

Motion sustained.

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


author: Ross, J.

text:
    The State of Ohio, Appellee, v. Curnutt, Appellant.
    (Nos. 6974 and 7003
    Decided October 11, 1948.)

      Mr. Carson Hoy and Mr. Samuel Rubenstein, for appellee.

      Mr. Chester R. Shoolc and Mr. Stanley A. Silversteen, for appellant.
   Ross, J.

Two appeals on questions of law are presented.

The first is from the judgment of the Court of Common Pleas of Hamilton county, in which the defendant was sentenced to death. The second is from an order of the Court of Common Pleas of Hamilton county, overruling a motion for new trial upon the ground of newly discovered evidence. Both appeals were considered at the same time by this court and will be so regarded in this opinion. ,

The indictment upon which the defendant was convicted and sentenced charged that “Ova B. Curnutt, alias Ova B. Cornett, on or about the second day of December in the year nineteen hundred and forty-seven at the county of Hamilton and state of Ohio,, aforesaid, did aid, abet or procure one Elmer Curnutt to unlawfully, purposely and in perpetrating a robbery, kill one Thomas Wilson, then and there being,, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the’ state of Ohio. ’ ’

This indictment clearly charged the defendant with' the crime of murder in the first degree as defined in Section 124-00, General Code, for by the provisions of Section 12380, General Code, an aider and abettor “may be prosecuted and punished as if he were the-principal offender.” The defendant was not only charged with aiding and abetting the principal in the-commission of the robbery, but also was definitely charged with aiding and abetting the principal in killing the deceased.

No bill of particulars was requested by the defendant. The trial court did not err in refusing to quash •the indictment upon motion of the defendant.

The principal evidence in the case, sustaining the conviction, involves a confession of the defendant and the testimony of his accomplice, Elmer Curnutt, the principal in the crime, each of which sustains the verdict beyond any reasonable doubt.

The defendant on the stand denied that he had at any time made any admission of guilt. The confession was testified to by at least four police officers who .agreed upon the main points of the statement. At the •time Elmer Curnutt, nephew and accomplice of the defendant, testified, he was under sentence of death, having been convicted as a principal in the commission of the crime of which the defendant was charged as an aider and abettor.

From the evidence it appears that Elmer Curnutt visited his uncle, the defendant, on the morning of December 2, 1947; that during the day the robbery and death of Thomas Wilson were planned; that the defendant’s residence was at 1517-19 Race street, Cincinnati, and Wilson’s place of business was located at 1521 Race street; that the defendant supplied his nephew with a blackjack, flashlight and glove; that the defendant took his nephew to Wilson’s cafe; that defendant in detail described how the nephew could effectively strike Wilson by requesting a bottle of beer, thus requiring Wilson to lean over in securing it from •an ice chest; that he cautioned his nephew that Wilson’s death was necessary, since Wilson had met the nephew in the defendant’s presence; that the nephew came to the defendant’s room after committing the crime and was transported by defendant in his automobile out of the city; and that the defendant received $63 from the nephew, a little more than half of the proceeds of the robbery which the defendant expected! would produce some $20,000, it being thought that Wilson was a miser and had at least that sum on his- ■ premises.

The evidence fully justified the conclusion of the-jury, and the degree of proof required was fully met.

In this appeal first considered, the defendant has-presented eight assignments of error. The seventh, and eighth only require comment. No error prejudicial to the defendant is found in the incidents of' the trial and the preliminary proceedings covered by the first six assignments of error.

The seventh assignment of error is concerned with, the refusal of the trial court to give certain special charges. Under the law governing criminal procedure-in this state, the defendant is not entitled as a matter of right to have the court give such charges. As to the mere requests for instruction in the general charge, it appears that the court covered in its general charge those instructions to which the defendant was entitled.

The eighth assignment of error is concerned with' the refusal 'of the court to present to the jury a form-, of verdict for murder in the second degree. The evidence in the case justified only three possible verdicts,, guilty as charged, guilty as charged with a recommendation of mercy, and not guilty.

It is impossible to conceive how the defendant could' have been found guilty of murder in the second degree,, involving under its definition (Section 12403, General Code) a purposeful, malicious killing, without requiring necessarily the conclusion that the defendant was-guilty as charged, in view of the fact that the robbery was clearly proved. The only possible justification for a verdict of guilty of murder in the second degree-would be that the jury believed that the defendant conspired with his nephew merely to unlawfully and maliciously kill Wilson, but not while perpetrating a robbery. Such a finding would be directly contrary to the evidence in the case. It will be noticed that in Section 12403, General Code, the crimes discussed in “the next three preceding sections” are excluded from the .application of Section 12403, General Code. Section 12402-1, General Code, was not in effect when Section 12403, General Code (Section 6810, Revised Statutes), was enacted and is therefore not included in such “three preceding sections.” The trial court committed no error in refusing to submit a form of ver•dict for murder in the second degree.

The general exception did not present any error in •the failure to submit other forms of verdict. Todor v. State, 113 Ohio St., 377, 378, 149 N. E., 326.

It is the conclusion of this court that the defendant 'had a fair trial before an impartial jury, and that no •error prejudicial to the defendant intervened.

In the second appeal, the action of the trial court in refusing to grant a new trial on the ground of newly discovered evidence is advanced as error prejudicial to the defendant.

In an opinion of the trial court, the evidence submitted upon the motion for new trial upon the ground •of newly discovered evidence was reviewed, and the finding is supported by the record.

Judge Morrow stated:

“A self-confessed murderer, now in death row, retracts his previous account of the crime wherein he 'had named his uncle as an aider, abettor, and fellow •conspirator. Accordingly, this court is asked to grant a new trial on newly discovered evidence, in behalf of the uncle, now also in death row, and who was convicted as such aider, abettor and fellow conspirator, in a trial wherein the self-confessed murderer (and nephew) testified against his uncle.

"The nephew has spoken and written rather often-concerning this crime. Evidence of the prosecution indicates as follows:

"He told a girl in Kentucky he had committed murder; he admitted the murder to police officers in Arkansas, and he involved his uncle when conversing on-a plane en route to Cincinnati from Arkansas. When in the Hamilton county jail after arrival in Cincinnati he wrote a 20-page account in his own handwriting-again involving his uncle, and which was given to a detective for the prosecuting attorney. He was questioned in the prosecuting attorney’s office in the presence of his uncle by the prosecuting attorney, his assistant, and also by detectives. During this oral examination he again involved his uncle by his statements,, and as an aider, abettor and conspirator. As noted above, he testified twice against his uncle after his own-conviction of the murder, and he made remarks to the-criminal bailiff indicating his uncle’s guilt as an aider, abettor, and conspirator.

"Furthermore, as noted above, he expressly denied' in writing a statement set forth on the wall of the Hamilton county jail ascribed to him whereby it was made to appear that his uncle was innocent of participation in the crime.

"Uncle and nephew since early April have been imprisoned in the same cell block in Columbus, and since-that time this retraction of previous testimony by the nephew has occurred. It appears from an affidavit of a penitentiary guard that communication between the-nephew and uncle has been possible since the time above mentioned.

"The affidavit by the nephew Elmer on the 20th of April, repudiating his previous testimony and statements, and as expanded by his testimony on the stand’, on the 21st of May, is an extraordinary effort.

“For the first time since December 2nd, the night •of the murder, we learn of a new actor — a George, -whose last name ‘is something like Warfield’ — who said he was from the nephew’s birthplace, Catliff, Kentucky. He now appears as an archvillian. He it was who butchered the victim while Elmer held the flashlight, and he it was who compelled Elmer thus to participate in the crime, by threatening his life and the life of his mother. He also threatened the saíne penalty if Elmer told on him. So Elmer now states.

“The uncle, Elmer says, knew nothing of the murder — had nothing to do with it. Not until April 20th in his statement of retraction did Elmer say a word to anybody about George. He claims he started to dell the Arkansas police but they abused him and would not believe him. The Arkansas police deny this. He claims he also tried to tell Cincinnati detectives who came to Arkansas for him, but they paid no attention. This is also denied. Elmer testified on the 21st of May, 1948, that the lawyers appointed to defend him were never told by him about George, and no relative or friend or well-wisher since Elmer’s conviction has been asked by Elmer to locate George.

“In short, until the 20th of April Elmer has kept •locked in his bosom the information that he was an unwilling participant in the murder, and that George ■did it. The information supplied by him up to that time included a confession that he himself robbed and •did the victim to death, and at the instance of his uncle who helped him escape, and with whom he divided the loot obtained from the victim.

“Elmer’s past statements, that is to say prior to his repudiation, are explained as follows:

“(1) He was threatened and abused by the Arkansas police immediately after his arrest;

“ (2) He was alternately threatened and made false promises by the Cincinnati detectives who brought him from Arkansas, and who thereby procured him tosíate his uncle was his aider and abettor;

“(3) He made statements on the stand in the two-trials of his uncle at the instance of detectives who had threatened him, and who also led him to believe ‘they would help him when the time came,’ if he involved his uncle.

“The above is a resume of the situation presented to the trial court at this time by the retraction of Elmer, the nephew.

“The Court of Appeals approved Elmer’s conviction.

“We are asked to grant a new trial to one named as an aider and abettor by the self-confessed murderer, and who now repudiates such statements. The self-confessed murderer is facing imminent execution, and' it is submitted that he is a penitent facing death.

“Elmer states he gave perjured testimony at the-trial wherein his uncle was convicted. The question in a case of this sort, wherein a new trial is asked on the ground of such newly discovered evidence, is: When did the witness tell the truth?

“In effect, we are asked now to determine whether the nephew told the truth at the trial of the uncle, the story then stated being plausible, and, furthermore-corroborated by admissions of the uncle and other-circumstances ; or are we to believe the story the nephew now tells, which is so improbable in view of its background as to be almost incredible, and which not only exculpates his uncle entirely but the nephew himself as well.”

In some respects, the evidence given by the nephew at the hearing of the motion for new trial complied' with the specifications applicable to evidence justifying the granting <of a new trial. The evidence could not have been ascertained before or during the trial since the nephew did not divulge his repudiation of his testimony given at the trial until some considerable time thereafter. It might have affected a verdict, if submitted upon retrial. It was competent, material, relevant, and not merely cumulative. The recanting witness could not be prosecuted for perjury, since he was executed shortly after making his statement of repudiation. The question here presented is, did the trial court commit error by refusing a new trial, under the circumstances set forth in the record. Is the trial court bound to grant a new trial simply because of the repudiation by a principal witness of testimony given .at the trial, the new evidence meeting the requirements applicable to newly discovered evidence, or may the trial court exercise a sound discretion in appraising the value of the new7 evidence in determining the right to a new trial? If the court cannot so exercise discretion, then any conviction is subject to attack, and such conviction must be set aside merely because a critical witness tells one story at the trial and another conflicting story at the hearing of a motion for new trial.

It must be remembered that, although the evidence given by the nephew, a fellow conspirator with the defendant, was most effective in securing the conviction of the defendant and was repudiated, still the state had introduced the confession of the defendant as well as other incriminating evidence. The probable effect of the absence of the nephew’s testimony upon the case of the state is speculative and problematical.

If the nephew had made pretrial statements similar to those for the first time presented at the motion hearing, he would certainly not have been called as a witness for the state. He might have been presented as a witness for the defendant.

In 39 American Jurisprudence, 175, Section 169, it is stated:

“In a criminal prosecution, recantation by tbe state’s witnesses will support an application for a new trial. It has been said to be tbe duty of a trial court to grant a new trial where a witness at the original trial subsequently admits on oath that he committed perjury, or even that he was mistaken in his testimony, provided such testimony related to a material issue, and was not merely cumulative.”

This question is not a novel one, and has been considered by courts of last resort. Such discretion to refuse a new trial has been recognized in Bolton v. State, 223 Ind., 308, 60 N. E. (2d), 742, 158 A. L. R., 1057, wherein it is stated in the syllabus:

“Recantation by an important witness of his or her testimony at the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial, but the determination of such matters rests in the sole discretion of the trial court whose action will not be set aside except for clear and manifest abuse.”

Again, in People v. Shilitano, 218 N. Y., 161, 112 N. E., 733, L. R. A. 1916F, 1044, it is stated in the fifth and sixth paragraphs of the syllabus:

“Evidence of recantation on the part of a witness is newly-discovered evidence, and, therefore, of a character which would justify granting a new trial, but it cannot be said, as a matter of law, that a new trial ■should be granted whenever an important witness against the defendant shall make an affidavit that he •committed perjury in his testimony, since there is no form of proof so unreliable as recanting testimony. 'The question in such case is whether the evidence of recantation which is presented is of such a character .and weight as to justify this court in setting aside the judgment entered upon the verdict of the jury.

‘*The recanting statements presented a question primarily for the trial judge, who had seen and heard the witnesses upon the trial, to determine whether they were of such weight as to justify him in setting aside the verdict, and in view of the character of the evidence offered to impeach the judgment, and the decision of the trial judge denying the motion for a new trial, the case fails to present a situation in which this eourt should substitute its judgment for that of the jury and the trial judge.”

In People v. Smallwood, 306 Mich., 49, 58, 10 N. W. (2d), 303, 147 A. L. R., 439, it is stated:

“The motion was mainly based on a claim of new testimony — that the girl had later repudiated her former testimony. We have frequently looked with disfavor on later admissions by a witness, that he or she had committed perjury in the trial, as a ground for granting a new trial. There was no abuse of discretion by the trial court in the case at bar in denying the motion. Plainly, a new trial (if one were held) would result in acquittal, if the complaining witness should adhere to her subsequent repudiation of her testimony. Under quite similar circumstances, this court upheld the lower court’s denial of a new trial in People v. Van Den Dreissche, 233 Mich., 38.”

The report of Bolton v. State, supra, is followed by an annotation in 158 A. L. R., 1062, in which it is stated editorially:

“A study of the cases in the original annotations and those decided subsequently indicates that the courts, with their experience with witnesses, generally pay but little regard to the statements of a recanting witness, and only in extraordinary and unusual cases will a new trial be allowed because of the recanting statements.

I i * * *

“When a new trial is sought upon the ground that a witness subsequently states that he gave perjured testimony, the question is, when did the witness tell the truth? Recantation by an important witness of his or her testimony at the trial does not neeessárily, or as a matter of. law, entitle the defendant to a new trial, the determination of such matters resting in the sound discretion of the trial court, whose action will not be set aside except for clear and manifest abuse. Moore v. State (1939), 59 Ga. App., 456, 1 S. E. (2d), 230; Bolton v. State (Ind.) (reported herewith), ante, 1057; State v. Zeilinger (1938), 147 Kan., 707, 78 P. (2d), 845; State v. Wynn (1934), 178 Wash,, 287, 34 P. (2d), 900; State v. Snyder (1939), 199 Wash., 298, 91 P. (2d), 570.”

To the same effect is the case of Henderson v. State, 135 Fla., 548, 185 So., 625, 120 A. L. R., 742, where it is stated in the ninth and tenth paragraphs of the syllabus:

“Motion for new trial is addressed to sound discretion of trial court, and presumption is that he exercised such discretion properly.

“Generally, unless it clearly appears that trial court abused its discretion, trial court’s action on motion for new trial will not be disturbed by the appellate court. ’ ’

In the instant case, the trial court was presided over by an experienced judge who had spent many years upon the bench. It may be presumed that he knew that the justice of a sentence of death was before him, and that the heavy responsibility attendant upon his continuing to sustain such sentence was fully apprehended. He had before him the witnesses whom he had opportunity to observe, when they were giving their testimony at the trial. He patiently listened to the new evidence in which there was, as hereinbefore noted, much to refute the repudiation by the principal in the crime.

It cannot be said, in view of all the circumstances in this case, that he abused his discretion in refusing a new trial.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Williams et al., Appellants, v. The Goodyear Aircraft Corp., Appellee.
    (No. 3940
    Decided July 9, 1948.)

      Mr. Stanley Denlinger, for appellants.

      Messrs. Buckingham, Doolittle & Burroughs, for appellee. ■
   Hunsicker, J.

This case arises as an appeal and cross-appeal on questions of law from an order of the Common Pleas Court of Summit county, sustaining in part and overruling in part a demurrer filed by the cross-appellant, Goodyear Aircraft Corporation, to the petition of the plaintiffs, Weldon M. Williams and others.

Williams and others commenced an action against their former employer, Goodyear Aircraft Corporation, hereinafter called corporation, to recover, in their own behalf and in behalf of all persons similarly situated, a money judgment under a claim for time spent by them in going from the entrance to the corporation property to the place where the employees rang their clock cards to begin the day’s work, and the time spent in leaving the corporation premises after they had rung the clock cards at the end of the day’s work.

After this petition was filed, 213 additional employees, by leave of court, were made parties plaintiff and sought relief on the same claim as the original plaintiffs.

The corporation filed a demurrer to the petition claiming that (1) the petition did not state a cause of action and (2) there was an apparent misjoinder of parties plaintiff.

The trial court sustained the demurrer to the claim that the petition did not state a cause of action and overruled the demurrer to the second claim of misjoinder of parties plaintiff.

This appeal on questions of law has been taken by all of the plaintiffs from the order made against them, and a cross-appeal has been perfected by the corporation from the order with respect to misjoinder of parties plaintiff.

The plaintiffs alleged that this action did not arise under the provisions of the Fair Labor Standards Act and was not a claim for minimum wages, unpaid overtime, or liquidated damages arising by reason of nonpayment of minimum wages or overtime compensation. The plaintiffs did say that their claim was for compensation on defendant’s promise implied in law to pay plaintiffs for all time spent in discharging plaintiffs’ duty to the defendant which was necessarily incident to the day’s work.

The plaintiffs alleged that they were former employees of the corporation, but were no longer employed by it. The plaintiffs alleged further that, for the entire period covered by plaintiffs’ employment, the corporation was under contract with the United States Government on a cost-plus fixed-fee agreement, in which contract, as a part.of the labor cost charged by the corporation to the United States Government, the time of plaintiffs and all others employed by the corporation in going to and from the entrance to the time clock for purposes of ringing in and out of work was used as a basis for computation of the corporation profits on its government contract.

There was no direct, allegation that the plaintiffs, and other employees, for whom they claimed compensation, had not been paid for the time spent in the corporation employment after ringing in and before ringing out at the time clock. The only inference that can necessarily follow is that they had been so paid, and that this claim was for additional compensation.

The plaintiffs have disclaimed, in their petition, briefs and oral arguments, any intention to ask for ■compensation under the so-called portal-to-portal cases. Plaintiffs, in their brief and in oral argument, also specifically deny that they seek compensation based on a contract implied in fact, but do say that their claim is based on a common-law doctrine which in law implied a promise to compensate the employees for time spent on the corporation premises, over and beyond that compensation which these employees received for work done between the period of ringing in and ringing out at the time clock. We direct our attention, then, to this claim of the plaintiffs.

All true contracts grow out of the intentions of the parties, and it is essential that there be a meeting of the minds in an implied as well as an express contract. Columbus, H. V. & T. Ry. Co. v. Gaffney, 65 Ohio St., 104, 61 N. E., 152; Price v. Cleveland Trust Co., 45 Ohio Law Abs., 606, 68 N. E. (2d), 133.

“Contracts are express when their terms are stated by the parties. Contracts are often said to be implied when their terms are not so stated. The distinction is not one of legal effect, but in the way in which mutual assent is manifested.” 1 Williston on Contracts (Rev. Ed.), Section 3.

Under the common law, all rights enforced by actions ex contractu, such as actions of assumpsit, were regarded as based on contract. Some of those rights were created not by mutual assent but were imposed by law.

' Mutual assent was not a necessary element to establish the rights, so they were said to have arisen from contracts implied in law. In this class of cases the notion of a contract is fictitious, for there are none of the elements of a contract necessarily present. As a result, there has developed considerable confusion in the decisions through the use, by the courts, of the words “implied contract” to designate what is not a real contract.

The term now used to describe obligations enforcibleby an action ex contractu where there has been no-mutual assent is “quasi contract.” 17 Corpus Juris Secundum, Contracts, Section 6; 1 Restatement of Contracts, Section 5.

It is necessary, then, to realize the difference between the way in which rights arise under real contracts and the way they arise under quasi contracts,, and to distinguish the legal relations created by them.

Quasi contracts developed from the desire of the-law to bring about justice without any reference to-the intention of the parties, and sometimes contrary to their intention. The principle upon which they are-founded is prevention of unjust enrichment, and the-remedy provided is by an action as though it were upon a contract. 12 American Jurisprudence, Contracts,. Section 6.

Typical examples of quasi-contract rights are the-right of recovery for money paid by mistake, the right of obtaining payment for the value of property or services obtained by fraud, the right to recover money expended by a political subdivision for the support of paupers whose legal settlements are in a different subdivision and the right to recover the value of necessities furnished an infant or married woman.

The law does not recognize the coexistence of a-quasi contract and an express contract covering the-same subject. Cale v. Kiner, Exr., 44 Ohio Law Abs., 407, 63 N. E. (2d), 839; 17 Corpus Juris Secundum, Contracts, Section 6; 3 Page on Contracts (2 Ed.),. Section 1438.

The plaintiffs alleged that they were former employees of the corporation, which in effect was an allegation that a contract of employment had been entered' into between the plaintiffs and the corporation.

A contract includes not only the terms set forth in-express words, but by implication all the provisions indispensable to effectuate the intention of the parties, without which the contract itself could not be performed. Therefore, in order to completely perform the contract of employment into which the parties had entered, it became necessary to pass over a portion of the corporation property to get to the place where productive work could begin.

The parties in the instant case made a contract covering the whole subject matter, and no promise can be implied to pay for travel and time-clock ringing over and beyond that which was inherent in the original contract of employment. The only logical conclusion which can be reached is that it was the intention of the parties that the work to be performed would require going to and from the place of productive work, and that the pay received was the full compensation contemplated by the parties for all time expended by plaintiffs in performing their customary services for the defendant.

The plaintiffs did hot allege facts which set forth •a cause of action, and hence the demurrer, on that ground, was properly sustained.

In our consideration of the cross-appeal, we think the trial court was in error in overruling the demurrer .as to an apparent misjoinder of parties plaintiff. Section 11254, General Code, reads:

“All persons having an interest in the subject of the .action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided.” Section 11257, General Code, is:

“When the question is one of a common or general interest of many persons, or the parties are very numerous, and is impi'acticable to bring them all before the court, one or more may sue or defend for the benefit of all.”

This was an action at law to recover a judgment for money only. The plaintiffs were employed at the same-place, it is true, but their duties were different, their travel and clock-ringing times were different, and their rates of pay per job or hour were different. Each cause of action, if any existed, was peculiar to the individual as to days worked, time spent, and all the-other matters relating to each employee individually.

This was not a class suit, as that term is used, for the interest of each was separate from the claim of the-other, and, notwithstanding the allegation of the petition to that effect, the facts as pleaded demonstrate that it was not a proper case for the joinder of the parties as plaintiffs. Pemberton v. Board of Edn., Toledo, 67 Ohio App., 175, 36 N. E. (2d), 170; Brown v. Ginn, Trustee, 66 Ohio St., 316, 64 N. E., 123.

There was no liability of the corporation to the-plaintiffs jointly, but only a claimed liability to each severally, and their joinder in this action was improper.

The judgment of the trial court, sustaining the demurrer on the ground that the petition did not state-a cause of action, is affirmed.

The judgment overruling the demurrer as to misjoinder of parties plaintiff is reversed, as being contrary to law. This court will enter the judgment which the trial court should have rendered. The demurrer is sustained upon the second ground thereof for misjoinder of parties plaintiff.

Judgment accordingly..

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


author: Wiseman, P. J.

text:
    Palmer, Appellant, v. Roof et al., Appellees.
    (No. 1964
    Decided April 1, 1948.)

      Messrs. Pickrel, Schaeffer & Ebeling, for appellant.

      Mr. Charles R. Boesch, for appellees.
   Wiseman, P. J.

TMs is an appeal on questions of law from the Court of Common Pleas of Montgomery county. The action grew out of a collision between the plaintiff’s automobile and a truck owned and driven by the defendant, Roy J. Roof, on route 48, commonly known as the Dayton and Covington pike, at a place approximately four miles north of Dayton.

The plaintiff alleged that Roof was negligent in the following respects: Failing to keep a lookout ahead, failing to yield the right of way to plaintiff, crossing onto plaintiff’s side of the road, and failing to have the truck under control.

Roof denied any negligence on his part, and in his cross-petition alleged that the damage was caused by the negligence of the plaintiff in the following respects: Operating his automobile at an excessive speed in violation of the statutes of Ohio, failing to keep his automobile under proper control and upon the right side of the center line of the highway, unlawfully driving his automobile to the left of the center line of the highway in violation of the laws of Ohio, unlawfully failing to give to the vehicle passing in the opposite direction one-half of the main travelled portion of the roadway in violation of the laws of Ohio, and carelessly, negligently and unlawfully colliding with Roof’s truck while he was operating the same on his right side of the highway.

The case was tried to the jury resulting in a verdict for Roof, on his cross-petition against the plaintiff, in the amount of $2,500.00, and a verdict in favor of the Illinois National Casualty Company, which had been made a party defendant, having been subrogated to the rights of Roof, on its cross-petition against plaintiff, in the amount of *$482.61.

On motion for new trial, the court being of the opinion that the damages assessed in favor of Roof were excessive ordered a remittitur in the amount of $1,000, with the consent of Roof, and thereupon overruled the motion for new trial and entered judgment accordingly.

The plaintiff has assigned nine separate grounds of error, eight of which relate to erroneous statements claimed to have been made by the court in its general1 charge. The court will not take up each separate ground of error but will discuss generally the separate-assignments of error relating to the charge.

The trial court in the beginning of its general charge-read the pleadings to the jury and then summarized the issues made by the pleadings. Although the issues--of fact may have been more clearly stated, the court .did charge on all the issues in the case. After considering the charge in its entirety we do not believe the charge in this regard was misleading to the jury, and-the failure to more clearly define the issues was not prejudicial.

The plaintiff claims that the trial judge placed the burden on him to prove that he was free from negligence. At several places in the charge, language was used which seems to place that burden upon the plaintiff. The court charged as follows:

“In other words, each must establish that burden by preponderance of the evidence in order to recover ¡damages from the other, and each must show, in order to recover, that he was free of any negligence proximately causing the collision and resulting damages.”

That charge was erroneous with respect to both the ¡plaintiff and the defendants.

The court further charged:

“To entitle the plaintiff to recover in this action he must prove by preponderance of the evidence that he was damaged in the manner set forth in his petition ¡through the negligence of defendant in the respects ■set forth, some one or all of them, and he must further ■prove that he was, himself, in the exercise of ordinary •care.”

The pleadings did not raise an issue of contributory negligence. However, under the evidence, the court •could have properly charged on contributory negligence but did not do so. On an issue of contributory ■negligence it would have been proper to charge the jury that, where the plaintiff’s own evidence raises a presumption or inference of contributory negligence, the burden would rest on the plaintiff to remove that ■presumption or inference. Contributory negligence is an affirmative defense, and the burden of proving It rests on defendant. At no time did the burden of proof rest upon the plaintiff to prove that he was free of negligence. However, the portion of the charge above quoted did not relate to an issue of contributory negligence and was misleading to the jury as it imposed an undue burden upon the plaintiff to prove that he was free from negligence. To so charge the jury under the issues made constituted reversible error.

The court in its charge quoted Section 6307-21, General Code, which contains provisions relative to speed of motor vehicles and also embodies the “assured clear distance ahead” rule. The court then charged on the question of speed but made no application of the “assured-clear-distance-ahead” rule. We are of the opinion that the mere reading of the quoted portion of the statute did not constitute reversible error, although it had no application to the facts in this case. See Thompson, Admx., v. Kerr, 39 Ohio Law Abs., 113, 127, 51 N. E. (2d), 742.

After quoting Section 6307-21, General Code, the court immediately quoted Section 6307-26, General Code, which provides that operators of vehicles proceeding in opposite directions shall pass each other to the right so as to give each other one-half of the main travelled portion of the roadway. The court then stated, “the violation of a statute passed for the protection of the public1 is negligence per se, ’ ’ and immediately charged, “No particular rate of speed is conclusive of the violation of the statute, and no rate of speed, is, therefore, an act of negligence per se.” . That charge was followed by the following statement:

“It is the claim of the defendant that the provisions of the General Code heretofore given you were violated by the plaintiff and that such violation was proximate cause of the damage.

“I say to you in this respect, members of the jury, "that if plaintiff violated the provisions of the General Code as read to you, then such violation on the part of plaintiff would be negligence in itself, etc.”

Such charge was not limited to Section 6307-26, but -embraced also Section 6307-21. From that portion of the charge the jury would be led to believe that the 'violation of either one of those sections constitutes negligence per se. The violation of Section 6307-21 is only prima facie evidence of negligence. The court made a correct and an incorrect statement relative to the application of that section. Where the court states •a correct rule and also states an incorrect rule with reference to the same subject matter, no presumption •arises that the correct rule was applied by the jury, and the error in giving the incorrect rule is prejudicial. Westropp v. E. W. Scripps Co., 148 Ohio St., 365, 74 N. E. (2d), 340; Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, 62 N. E. (2d), 305; Seward v. Schmidt, 30 Ohio Law Abs., 684; 2 Ohio Jurisprudence, 938, Section 770 (numerous cases cited).

There are other claimed errors which, after a consideration of the charge as a whole, we find were not misleading and were not prejudicial.

For his ninth assignment of error, plaintiff contends that the verdict is against the manifest weight of the -evidence. There was evidence of a substantial character offered in support of the allegations of negligence set forth in the defendants’ cross-petitions. After a careful consideration of all of the evidence in this case, the court cannot say that the verdict was against the manifest weight of the evidence. However, because of the erroneous and misleading statements made in the charge to the jury, the judgment is reversed and the case remanded for new trial.

Judgment reversed.

Miller and Hornbeck, JJ., concur.