author: Griffith, J. Nichols, J.

text:
    Anderson, Appellee, v. May, Appellant.

      (No. 696
    Decided December 15, 1951.)

      Mr. J. M. MacDonald, for appellee.

      Mr. F. W. Springer and Mr. Ralph Atkinson, for appellant.
   Griffith, J.

The appellant here, Leona Anderson May, is seeking the reversal of the judgment of the Probate Court of Columbiana County, Ohio, entered on the 21st day of September 1951. That court allowed a writ of habeas corpus ordering the three minor children of Leona Anderson May and Owen Anderson released to the custody of the father.

The habeas corpus proceeding is based upon a decree of a county court of Waukesha County, Wisconsin, wherein the custody and control of the children were awarded to the father, the petitioner in this case. The appeal was filed on questions of law and fact, but it has- been submitted to this court by counsel upon questions of law only, it appearing that the action is not a chancery case.

The following facts were stipulated:

“That the defendant, Leona Anderson May, is a native of the state of Wisconsin and that the plaintiff and defendant were married in the state of Wisconsin and were residents of and domiciled in that state up to the latter part of the month of December, 1946, at which time the defendant left the state of Wisconsin with the aforesaid children and came to the state of Ohio; that the said children which are the subject of this action in habeas corpus, to wit: Ronald Anderson, Sandra Anderson, and James Anderson, were born in the state of Wisconsin and at all times resided in that state with their parents, plaintiff and defendant, up until the latter part of December, 1946, at which time the defendant brought them into the state of Ohio; that the plaintiff, Owen Anderson, at all times has been and is now a resident of and domiciled at Waukesha county in the state of Wisconsin.

“That said defendant, Leona Anderson May established a separate domicile in the state of Ohio the latter part of December, 1946, and has ever since that time been domiciled in Lisbon, Columbiana county, Ohio.

“That on February 5, 1947, the plaintiff herein was granted a divorce in the county court of Waukesha, state of Wisconsin. That- at the time said divorce was granted, and at the time the petition for said divorce was filed, as well as at all other times in between, the defendant, Leona Anderson May, was in Lisbon, Co-lumbiana county, Ohio, and had with her at all said times the three minor children aforesaid, Ronald Anderson, Sandra Anderson and James Anderson.

“That the only service made on the defendant in connection with said divorce proceedings, was tliat made by the sheriff of Columbiana county, Ohio, in which he personally handed the defendant a copy of the summons from Waukesha county, Wisconsin, and a copy of the divorce petition filed in the county court of said Waukesha county, Wisconsin. That the defendant never entered her appearahce in the county court of Waukesha county, state of Wisconsin, and filed no waiver, answer or demurrer therein. That the plaintiff obtained a decree of divorce, which among other things, adjudged and decreed that the care, custody, management and education of the minor children of the parties was awarded to the plaintiff, subject to the right of the defendant to visit said children at any and all reasonable times. That said decree was entered by default in the absence of any appearance by the defendant.

“That thereafter the plaintiff came to Lisbon, Co-lumbiana county, Ohio, and, accompanied by a police officer of the village of Lisbon, Ohio, demanded and obtained the aforesaid minor children from the defendant. That the plaintiff has retained the custody of said minor children since February of 1947, having taken them back with him to Waukesha county, Wisconsin.

“That no further legal proceedings of record have been filed in said divorce case since the aforesaid divorce decree was entered.

“That on July 1, 1951, the plaintiff brought the aforesaid children with him on a visit to Columbiana county, Ohio, and voluntarily permitted the children to go on a visit for a limited period of time to their mother’s, the defendant herein. That the mother, the said defendant, has refused to surrender said children to the plaintiff, and the plaintiff has filed this action to recover the possession and custody of said children.”

Testimony of Mrs. May and Mr. Anderson was taken and, so far as the issues in this case are concerned, that is all the record that is pertinent to the solution of the instant problem. The conduct of the father and the mother of the children following the Probate Court’s announcement of its decision, reprehensible as that conduct may jbe on. the part of each, has no bearing on the decision of this case. .

The testimony of the father and mother bears directly upon the conditions under which Mrs. May took the children from Wisconsin to Ohio,

Anderson testified as follows:

“A. I agreed that she could take them with her after arguing the statement pro and eon she could take them with her. And if her mind was made up, she could settle things at home. That was the understanding I had when she left.

“Q. Did she say she would bring the children back? A. She agreed to it when she left.

‘1Q. When you had this telephone conversation with her on New Year’s Day, what was said? A. The only thing I can remember is, ‘Owen, I’m not coming-back.’ ”

“A. I called her up and asked her to bring the children back. I asked them all to come back. ’ ’

Mrs. May testified that at the time she left Wisconsin the children’s.ages were eight years, five years, and 18 months.

“Q. What was the purpose in coming- to Ohio? A. He told me to get away by myself to think it over or what I wanted to do. Either come back to live or separate.

‘ ‘ Q. When you left Wisconsin, what was said about the children? A. Nothing was said. He said it was up to the court. He said he would never separate the three of them.

“Q. Was there anything said about bringing the children back to Wisconsin? A. Nothing was said.

“Q. What was your understanding? A. To come here to think it over and I decided to stay.

“Q. What was your understanding about the children? A. There was no understanding. All I know was that I had them with me. When the napers were served I asked the attorneys what to do.

‘.‘Q. At the time you left Wisconsin, had ypu made up your mind that you would not come back to Wisconsin? A. At the time I left I really didn’t know what I was going to do.”

From the record before us, it is apparent that Leona Anderson May was a native of Waukesha, Wisconsin: that she and Owen Anderson were married in the middle thirties and took up residence in Waukesha where they lived their entire married life: that their domicile and permanent home, freely chosen by both, was fixed in Waukesha up to December 26, 1946; that on December 26, 1946, Leona Anderson May left Wau-kesha with the three children and came directly to Lisbon, Ohio, where she established her domicile; that she brought the children to Lisbon with the knowledge and consent of the father to think over her domestic differences with her husband, and decide whether she would longer live with him; that on New Year’s day she told her, husband she was not coming back; and that the father thereupon requested the return of the children as he had stated to the mother that the matter of their custody “was up to the’court”; that on January 6, 1947, Owen Anderson filed his action in Waukesha, Wisconsin, for divorce and custody of the children; that a divorce was granted to him on February 5, 1947, which decree was made in the absence of the mother and the children from the state of Wisconsin and without service or jurisdiction over them other than the substituted service in the divorce case.

The court awarded custody of the children to the father. The only service made on Leona Anderson May in the divorce case was through the sheriff of Cohlmbiana county, Ohio, who served her with summons and a copy of the petition. No personal service of any nature was made upon Leona Anderson May in the state of Wisconsin. Neither she nor the children were in Wisconsin at the time the divorce petition was filed or until long after the decree of custody and divorce was granted. They at all times remained in Lisbon,. Ohio. In February 1947, after the decree of divorce was granted, Owen Anderson came to Lisbon with a copy of the Waukesha county court order and demanded and obtained tbe children from Mrs. May and took them with him back to Wisconsin.

Nothing happened during 1947,1948, 1949, 1950, and the first half of 1951. The children remained with the father in Waukesha from 1947 until July 1951. On July 1, 1951, Owen Anderson brought the children to Columbiana county and permitted them to visit the mother for a limited period of time. The mother now refuses to surrender the children to the father, hence this proceeding.

When Mrs. May brought the children- to Ohio in December 1946, it was understood between her and her husband that it was a temporary and conditional taking until she could make up her mind regarding their marital difficulties. He permitted her to take them on this basis and if she did not return to Wisconsin, then the court would determine the matter of custody. “The court” unquestionably meant the Wau-kesha County Court which was the only court having-jurisdiction over them at the time of their discussions. She came to Ohio for a special and temporary purpose when she left Wisconsin. She was uncertain as to her ever coming back. Something occurred after she left which induced her to adopt Ohio as her permanent home.

Did the court of Waukesha county, Wisconsin, in the divorce proceeding on substituted service against the mother when both the mother and children were in Ohio, have power or control over the children ?

Did the mother’s change of domicile effect a change of domicile for the children?

The summons served in the divorce case amounted to constructive service or service by publication, although the sheriff of Columbiana county, Ohio, personally handed Mrs. May the summons and copy of the petition.

Sections 262.12 and 262.13 of the Wisconsin Statutes (1949) provide, in part, as follows:

Section 262.12 “When the summons cannot with due diligence be served within the state, the service of the summons may be made without the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or proper party to an action or special proceeding as provided in Rule 262.13, in any of the following cases:

C Í * * #

“ (5) When the action is for a divorce or for annulment of marriage. ’ ’

Section 262.13 “* * *

“ (4) In the cases specified in Rule 262.12 the plaintiff may, at his option and in lieu of service by publication, cause to be delivered to any defendant personally without the state a copy of the summons and verified complaint or notice of object of action as the case may require, which delivery shall have the same effect as a completed publication and mailing. ’ ’

Where were these children domiciled during the period of time between the filing of the divorce petition and the granting of the decree?

Two elements must concur to establish domicile— (1) residence and (2) intention of remaining.

The domicile of a minor child normally is that of the father. A minor cannot change his domicile. Was the removal of these three children from Waukesha, Wisconsin, under the circumstances, such as to effect a termination of their domicile with the father there in Wisconsin? We do not think so.

The mother brought them to Ohio on a temporary and conditional basis with the understanding that they should be returned if she decided to separate from her husband. She decided to separate, and it was then that the temporary permission ended. Until she said to him over the phone on New Year’s day of 1947, “Owen, I’m not coming back,” she had not changed her domicile.

The children were domiciled in Wisconsin until December 26, 1946, where the Wisconsin court had exclusive jurisdiction and that court did not lose its jurisdiction by reason of their going with the mother who went to Ohio to meditate and decide her program of life for the future. Temporary absence of the children from Wisconsin could not change their legal settlement. The Wisconsin court did not lose jurisdiction while they were temporarily in Ohio.

While the facts in each of these cases are entirely different from those in the case before us, we believe the reasoning in the cases of Cohen v. Judge, 13 Ohio App., 449, 32 C. C. (N. S.), 457; Keenan v. Keenan, 5 N. P. (N. S.), 12, 17 O. D., 581; Black v. Black, 110 Ohio St., 392, 144 N. E., 268, supports our conclusions.

The children were in Ohio with their father’s consent and permission. After that announcement on New Tears day, “Owen, I’m not coming back,” he demanded that she return the children, which demand was ignored. The children from that time forward were in Ohio against his will and without his permission. It was during that period of time that the divorce proceedings were commenced and concluded. The change of the domicile of the mother under these circumstances did not in any wise effect a change of the domicile of the children.

The court had no alternative but to order the release and its judgment on that order will be affirmed.

Judgment affirmed.

Phillips and Nichols, JJ., concur in the judgment.

Nichols, J.

I cannot concur in holding that the court of Waukesha County, Wisconsin, had jurisdiction to award custody of the minor children of the parties to the divorce action, for the reason that such children were not within the jurisdiction of 'that court at the time the petition for divorce was filed or at the. time the decree was rendered.

However, if I am right in my finding that the Wau-kesha County Court did not have- jurisdiction, then this habeas corpus proceeding in Columbiana county was one solely to determine which of two narents having equal rights to children should be awarded custody thereof since the parents are not living together and cannot have joint custody and control thereof.

In this case, in the proceeding in Columbiana county, the court’s judgment awarding custody to the father is entirely supported by the evidence and is for the best interests of the children.

I, therefore, concur in the judgment for the reasons stated.


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    Schultz et al., Appellants, v. Meyerholtz, Appellee.

      (No. 260
    Decided November 5, 1951.)

      Mr. John B. Morton, for appellants.

      Messrs. True & Meyer, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment entered upon a verdict for defendant returned by the jury upon direction of the court at the conclusion of plaintiffs’ case.

The action was brought on behalf of Ra!ph Schultz and The Grain Dealers National Mutual Fire Insurance Company (under an alleged subrogation agreement)-against the defendant for damages to Schultz’s truck resulting from a collision with a steel shovel or bucket moving or hanging over the highway, obstructing plaintiff’s line of travel. At the time of the collision, defendant was engaged in digging or cleaning a ditch running along the westerly side of the highway (a county road) with a large caterpillar ditcher with a shovel having a 3/4-yard dragline and a 40-foot boom. The operation was proceeding in a northerly direction and consisted of depositing the earth and debris on a field farther to the west of the ditch and highway. When the ditching was in the neighborhood of a telephone pole, the boom and shovel would be operated over the road to the right or east and around the rear of the outfit over onto the field; otherwise the shovel would be lifted from the ditch over to the field on the left or west. Plaintiff was aware that the ditch-er was operating along the highway. He saw it first when about a half mile away. He stopped his truck about 100 yards south of the ditcher and spent a half hour or so conversing with a Mr. G-rau, who was engaged in repairing a corn picker in the field along the road. During this interval, the ditcher was visible to the plaintiff but he said that at no time did he observe the shovel over the highway. After talking to Mr. Grau, plaintiff got into his truck and started north. He stated he was traveling in second gear and that he was going 5 or 6 miles per hour when he saw the shovel, possibily 10 or 15 feet ahead. He made no effort to apply his brakes but when he saw the bucket he laid down on the seat. ‘ ‘ The only thing I could do was lay down. I didn’t have time * * * didn’t have time to stop.”

On cross-examination defendant said that he had a man on the road watching traffic. Plaintiff testified that he saw no one in the road between him and the shovel but there was a man sitting in the ditch alongside the bank, and “If he had been there to warn traffic he would have had a flag, or something.”

Defendant said that he would scoop up a shovel full of dirt and deposit it about twice a minute: that where a telephone pole was in the way he had to swing the scoop around over the highway; and that he had seen the plaintiff’s truck parked on the side of the road.

He said:

“I didn’t see it when he got into it; I looked down the road, there was nothing coming, and when I swung around this way, of course, and naturally he was right there, and that is the first I saw it. * * * I saw bim and then I stopped it (the boom) and started to reverse it. Of course, I could not reverse it fast enough to be out of the way.”

Defendant contends that there was no evidence of negligence on the part of the defendant. Plaintiff had the right to proceed lawfully upon the highway, but the right of transit in the use of a public highway is subject to such incidental, temporary, or partial obstructions as manifest necessity requires, and among these are the temporary impediments necessarily occasioned by the digging of a ditch along the highway. Such temporary impediments are not invasions but qualifications of the right of transit on the highway and, when guarded with due care to prevent danger to the public, are not nuisances. Cf. Clark v. Fry, 8 Ohio St., 358, 72 Am. Dec., 590. Defendant was engaged in a lawful operation, but his operation of the boom and bucket over and into the traveled portion of the highway presented a hazard to the traveling public and the possibility of injury by the sudden injection into the highway of an obstruction. Defendant was bound to exercise ordinary care to prevent injury. Ho had a watchman, but, under the evidence which the trial court was bound to believe, the watchman was not performing his duty to warn the plaintiff as a traveler on the highway. Whether defendant failed to exercise ordinary care under the circumstances and, if so, whether such failure proximately caused plaintiff’s damage were questions for the jury.

Defendant contends further that the petition does not state a cause of action in favor of the plaintiff Schultz, inasmuch as it alleges that all his rights were assigned to the insurance company. But the petition alleges that the insurance company became subrogated to the extent of its payment to Schultz, to all of Schultz’s claim against the defendant. Under the liberal rule of construction of pleadings, it can not be held that Schultz assigned all his claim to the insurance company.

Defendant contends further that the insurance company failed to prove its right to subrogation or its right to prosecute the action.

Plaintiff Schultz testified that his truck was worth $1,500 before and $600 after the accident, that he paid $100 on the repair bill, and that the insurance company paid the balance. When asked about the subrogation agreement, the witness became confused. When asked whether a certain instrument was a copy of a receipt he signed for the insurance company at the time the truck was repaired he said yes, but the objection of the defendant was sustained on the ground that the question related to a copy rather than the original document. He was then asked whether he had signed any agreement with the insurance company and he said, “No.” Later on, after a recess, he was again asked and he said that he probably signed some papers but had no recollection of having done so. Counsel’s request to continue the trial to the following morning, when he could produce the original subrogation agreement which was in the mail from the company, was denied. The denial of this request was within the discretion of the court. The local agent for the insurance company testified that the truck was insured under a policy issued by the plaintiff insurance company for collision, with $100 deductible, and fire and theft for $1,200. Evidence concerning the office records regarding the disposition of Schultz’s claim was excluded. Under the proffer, it appears that the Western Adjustment Company, under date of December 15, 1947, wrote the local agent: “Included herewith find bill for the repair of Ralph Schultz’s truck in the amount of $587.71. Mr. Schultz has paid the hundred dollars deductible collision to the body shop in order to get his truck out of the garage.” The witness was not asked whether the claim was paid by the insurance company.

But there was evidence that the plaintiff insurance company carried the risk and Schultz did say that he paid $100 on the repair bill and that the insurance company paid the rest. The truth of his statement and means of knowledge of the payment presented a question of credibility for the jury. In a controversy between insured and insurer, it would be necessary for the latter to prove subrogation; but the defendant is not prejudiced by the failure to prove a subrogation agreement, and a recovery can be had in the absence of proof of such an agreement. Northwestern Ohio Natural Gas Co. v. First Congregational Church of Toledo, 126 Ohio St., 140, 184 N. E., 512.

Defendant further contends that without the application of the ‘ ‘ assured-clear-distance ” rule, plaintiff was-guilty of contributory negligence as a matter of law in making no attempt to stop his truck after seeing the shovel in front of him in the highway. Defendant takes the • position that since plaintiff was driving at only six or seven miles per hour when he saw the shovel ten or fifteen feet away, he could have stopped the truck immediately and thus avoided the collision. This argument could be presented in every case involving the exception to the assured-clear-distance rule, i. e., the sudden emergence of a moving object within a driver’s line of travel. But the question whether the driver could have stopped in time and also whether such driver failed to exercise due care under the circumstances when confronted with an emergency are matters for the jury under appropriate instructions of the court. The question is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do, when confronted with peril, and is one of fact for the jury. Pennsylvania Rd. Co. v. Snyder, 55 Ohio St., 342, 45 N. E., 559, 60 Am. St. Rep., 700.

Finally defendant contends that plaintiff is guilty of negligence per se in violating the assured-clear-distance rule, upon authority of Schroff v. Foley Construction Co., 87 Ohio App., 277, 94 N. E. (2d), 641; Bickel v. American Can Co., 154 Ohio St., 380, 96 N. E. (2d), 4; and McFadden, Admx., v. Breuer Transportation Co., 59 Ohio Law Abs., 163, recently decided by the then members of this court. The Schroff and McFadden cases involved static discernible objects in the highway. In the Bichel case, the Court of Appeals sought to apply the exception to the rule to the sudden stopping of an automobile in the path of a following vehicle. The Supreme Court, in reversing the judgment of the Court of Appeals, held there is no distinction to be made with reference to a discernible object within the assured clear distance, based upon whether that object is moving at a normal speed, a slow speed or is static. It did not modify but approved the rule announced in the second paragraph of the syllabus in Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960.

Construing the evidence most strongly in favor of the plaintiff (Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246; Wilkeson, Admr., v. Erskine & Sons, Inc., 145 Ohio St., 218, 61 N. E. [2d], 201; Purdy, Admr., v. Kerentoff, 152 Ohio St., 391, 89 N. E. [2d], 565), it does not disclose a violation of the assured-clear-distance rule and contributory negligence as a matter of law.

Judgment reversed.

Conn and Savord, JJ., concur.

       Reversed, 156 Ohio St., 430, subsequent to the rendering of the opinion in the instant case.


author: Doyle, J.

text:
    Hartford Accident & Indemnity Co., Appellant, v. Procter & Gamble Co., Appellee.
    (No. 7587
    Decided June 30, 1952.)

      Mr. Sol Goodman, for appellant.

      Messrs. Dinsmore, SJtohl, Sawyer & Dinsmore, for appellee.
   Doyle, J.

To a petition of the Hartford Accident & Indemnity Company, seeking damages for personal injury in the amount of $50,000, alleged to have been suffered by one Zelma C. Clarke as the result of the negligence of the Procter & Gamble Company, a demurrer was sustained and a judgment was entered for the defendant company, on the ground that the action was not commenced within two years from the time the cause of action accrued. From such final order in the' Court of Common Pleas of Hamilton County, the present appeal has been taken.

It appears in the petition that the claimant, at the time of her alleged injuries (received on or about September 28, 1948, in the state of New York), was employed by the “Hearst Magazines and/or InterNational Circulation Service Co.” In the course of her employment, she was required to “handle” and did use a product manufactured by the Procter & Gamble Company, of Ohio. It is asserted, inter alia, that, as a result of the delict of the manufacturing company, she was injured by inherently dangerous ingredients in the compound.

Following her injuries, she sought and received workmen’s compensation, which was paid to her by the Hartford Accident & Indemnity Comoany, an authorized insurance carrier; all pursuant to the laws of the state of New York. After the New York statutory time had elapsed within which she could have brought suit against the claimed third person tort-feasor (Procter & Gamble Company), the Hartford Accident & Indemnity Company commenced the present action, under a right claimed to exist in it as an assignee of the cause of action by virtue of New York law.

The New York law bearing upon these claimed rights appears in Section 29 of that state’s workmen’s compensation legislation (Chapter 67, Article 2, Section 29, Consolidated Laws of New York), and is to the effect that an employee injured by the negligence of a third person may “take * * * compensation and medical benefits and at any time either prior, thereto or within six months after the awarding of compensation * * * pursue his remedy against such other [third person] * * *.” The statute continues by providing that “If such injured employee * * * has taken compensation * * * but has failed to commence action against such other within the time limited therefor * * *, such failure shall«operate as an assignment of the cause of action against such other to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person, association, corporation, or insurance carrier liable for the payment of such compensation.” Continuing, the statute provides that, if a judgment is obtained against the tort-feasor in an amount greater than the compensation previously awarded to the injured employee plus the cost of medical treatment and reasonable expenditures, the employee shall be paid two-thirds of such excess “and to the extent of two-thirds of any such excess such recovery shall be deemed for the benefit of such employee * * (Italics ours.)

The trial court sustained a demurrer to the petition, as heretofore stated, on the theory that the action was controlled by Section 11224-1, General Code of Ohio, which limits the time to two years for the institution of actions for personal injuries.

It is here claimed to the contrary that the action should be governed by Section 11222, General Code of Ohio, which is in the following terms:

“An action upon * * * a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued.” (Italics ours.)

As has been noted, the action was instituted in this state by an assignee to recover for injuries sustained in the state of New York by. the assignor. In actions of this character, the trial court is governed by the substantive law of New York and the adjective law of Ohio. Freas v. Sullivan, 130 Ohio St., 486, 200 N. E., 639; Collins, a Minor, v. McClure, 143 Ohio St., 569, 56 N. E. (2d), 171.

Governed as we are by the adjective law of this state, we have, then, this question: Whether the right of the plaintiff to sue is a common-law right to sue for personal injuries arising out of tort, or whether it is a right to sue upon a liability created by statute.

It is generally held that workmen’s compensation statutes relate solely to the relationship of employer and employee; and that an injured employee may, in addition to receiving compensation from his employer for injuries received in the course of his employment, sue for and recover damages for the same injuries from a third person tort-feasor whose negligence has proximately caused his damage. Trumbull Cliffs Furnace Co. v. Shackovsky, 111 Ohio St., 791, 146 N. E., 306; George v. City of Youngstown, 139 Ohio St., 591, 41 N. E. (2d), 567. Such is also the law of New York.

This common-law right to sue the third person tort-feasor is specifically preserved to the injured workman by the New York statutes — with the provision, however, that, if he fails to prosecute his right within a specified time, ‘ ‘ such failure shall operate as an assignment of the cause of action” against such third person, to (in the .case under consideration) the insurance carrier which paid the state compensation.

The case law in New York, in treating this general subject, is to the effect that, by operation of the statute, the insurance carrier becomes the absolute assignee of the cause of action which originally belonged to the injured employee, the ownership of which he, by his failure to prosecute, relinquished. Commissioners of State Insurance Fund v. Clark Carting Co., Inc., 274 App. Div., 559, 86 N. Y. Supp. (2d), 313; Shakandy, Admx., v. State, 274 App. Div., 153, 80 N. Y. Supp. (2d), 849.

It is the conclusion of this court that, m applying the adjective law of this state to the substantive law of New York, the bar of the statute (Section 11224-1, General Code — two-year statute of. limitations) is complete, for the reason that the cause of action is for personal injuries predicated upon common-law negligence; and “Where the bar of the statute is complete against the person from whom right or title was derived, it is operative and binding against the successor.” 53 Corpus Juris Secundum, Limitation of Actions, Section 18 b, and cases cited. See? also, Squire, Supt., v. Guardian Trust Co., 79 Ohio App., 371, paragraph seven of syllabus, 72 N. E. (2d), 137.

The cause of action in the injured workman existed independent of the statute as a common-law right to recover for personal injuries. By statute, the owner-, ship was assigned. The assignment did not change the character of the cause of action into one “created” by statute. The assignee stands in the shoes of his assignor with respect to the subject of the assignment.

The trial court was right in all respects in its judgment. It will be affirmed.

Judgment affirmed.

Hildebrant, P. J., and Metcalf, J., concur.

Doyle, J., of the Ninth Appellate District, and Metcalf, J., of the Fourth Appellate District, sitting by designation in the First Appellate District.


text:
    The State of Ohio, Appellee, v. Havens, Appellant. (Two cases.)
    (Nos. 474 and 475
    Decided October 22, 1951.)

      Mr. Thomas F. Dewey, prosecuting attorney, for appellee.

      Mr. J. B. Palmquist, for appellants.
   Fess, J.

These are appeals on questions of law from judgments of conviction of the defendants of forgery. In case No. 474, the defendant, Olin M. Havens, was indicted and convicted' for uttering a false, forged and counterfeited check with intent to defraud. In case No., 475, the defendant, Mary Y. Havens, wife of Olin M. Havens, was convicted under an indictment charging that she falsely made, forged and counterfeited a check with intent to defraud.

The evidence tended to show that Mary Havens signed her own name to a check upon a bank in which she had no funds or even a deposit account, and that her husband delivered such check to a merchant in payment for a pair of trousers. Defendants contend that, although they may have been guilty of false pretenses or of drawing a check without funds, since the maker signed her own name to the check, the defendants are not guilty of forgery.

One is reminded of the story concerning the colorful Lew Shanks who, in his campaign for mayor of Indianapolis, was charged with having stolen chickens while market master. He loudly proclaimed that it was a dirty lie. “I stole no chicken. It was a goose.” No authorities are referred to in either brief. Nevertheless, there is authority in support of defendants’ contentions in Snyder v. State (1894), 8 C. C., 463, 1 O. D., 207, 4 C. D., 279, and State, ex rel. Bailey, v. Henderson, Warden, 76 Ohio App., 547, 63 N. E. (2d), 830. The Henderson case holds that one who signs his own name to a check upon a bank in which he has no checking account and tenders the same for cashing is not by such act guilty of the offenses of forging a check and uttering a forged check. The decision is in line with the weight of authority in the United States that under the common law and under statutes defining forgery -in the substantial language of the common-law definitions, the genuine making of an instrument for the purpose of defrauding does not constitute forgery. 41 A. L. R., 229. See, also, 46 A. L. R., 1529, and 53 A. L. R., 568.

Forgery at common law is defined by Blackstone as the fraudulent making or altering of a writing to the prejudice of another’s right, and by East as the false making or altering, malo animo, of any written instrument for the purposes of fraud and deceit. In 1865, in In Re Windsor, 6 Best & Smith, 522, Cockburn, C. J., declared that forgery “by universal acceptation * * * is understood to mean, the making or altering a writing so as to make the writing or alteration purport to be the act of some other person, which it is not.” But in 1869, in Rey v. Ritson, 1 Law Reports, Crown Cases, 200, it was held that forgery is the fraudulent making of an instrument in words purporting to he what they are not, to the prejudice of another’s rights. In the same case, Blackburn, J., adopted Comyn’s definition that forgery is where a man fraudulently writes or publishes a false deed or writing to the prejudice of another. 2 Wharton’s- Criminal Law (12 Ed.), 1162, Section 859. It is apparent that the cases in the United States have departed from the broad common-law definition and have followed the more narrow rule pronounced by Cockburn in In re Windsor. In its ordinary sense, forgery is the false signing of another’s name, but in the Snyder and Henderson cases the courts overlook the fact that Section 13083 of the Ohio General Code is much broader and more inclusive than the Cockburn definition. It recites that “whoever, with intent to defraud, falsely, makes, alters, forges, counterfeits, prints or photographs * * * bank bill or note, check, bill of exchange, contract, promissory note * * * or, with like intent, utters or publishes as true and genuine such false, altered, forged, counterfeited * * * matter, knowing it to be” such, is guilty of forgery.

No language is to be found in the section denouncing in explicit terms the false making or forging of another’s signature. No such language was necessary, because the statute says “forges,” which includes forgery in the limited sense of forging another’s signature. But in addition to the word, “forges,” the Legislature says, “falsely makes, alters, counterfeits, prints,” etc. In construing the statute, regard must be had to the additional language employed.

It is true that criminal statutes are to be strictly construed. City of Cleveland v. Jorski, 142 Ohio St., 529, 53 N. E. (2d), 513; State v. Conley, 147 Ohio St., 351, 71 N. E. (2d), 275. But the rule of strict construetion is subordinate to the rule of reasonable, sensible and fair construction according to the expressed legislative intent, having due regard to the plain, ordinary and natural meaning and scope of the language employed. Woodworth v. State, 26 Ohio St., 196; Inglis v. Pontius, Supt., of Banks, 102 Ohio St., 140, 148, 131 N. E., 509; Richards v. State, 110 Ohio St., 311, 314, 143 N. E., 714.

In other words, although it is settled that a penal statute is not to be extended by construction to persons or acts not within its descriptive terms, yet it is just as well settled that the provisions of a penal statute are to be fairly construed according to the expressed legislative intent, and mere verbal nicety or forced construction is not to be resorted to in order to exonerate persons committing acts plainly within the terms of the statute. Barker v. State, 69 Ohio St., 68, 68 N. E., 575; State v. Vause, 84 Ohio St., 207, 95 N. E., 742, Ann. Cas. 1912C, 513. To hold that the making of a false instrument is not within a criminal statute directed against the false making of an instrument (as was held by the Supreme Court of Nebraska in Goucher v. State, 113 Neb., 352, 204 N. W., 967, 41 A. L. R., 227) requires an artificial and narrow interpretation which, it seems to us, would defeat the apparent purpose and intent of the Legislature to include as forgery the making of a false instrument regardless of whether the signature itself was genuine. Conrad v. State, 75 Ohio St., 52, 78 N. E., 957, 6 L. R. A. (N. S.), 1154.

The state of Illinois has a statute defining forgery somewhat similar to the Ohio statute. It provides that every person who shall falsely make, alter, forge or counterfeit any one of a specified number of instruments shall be guilty of forgery. In People v. Kramer (1933), 352 Ill., 304, 185 N. E., 590, the Supreme Coui-t held that the essence of forgery is the making of a false writing with intent that it be received as the act of another, and can not be committed by the making of a genuijie instrument though the statements made therein are untrue. But in People v. Kubanek (1939), 370 Ill., 646, 19 N. E. (2d), 573, the court held that the Illinois statute was not directed solely against the forgery of signatures, but includes false making, uttering and counterfeiting, when done with intent to defraud. In People v. Mau (1941), 377 Ill., 199, 36 N. E. (2d), 235, the court held that a person may be guilty of a “false making” of an instrument within the meaning of the common-law definition of “forgery” where the instrument is false in any material part and calculated to induce another to give credit to it as genuine and authentic, notwithstanding the fact that the person signs and executes the instrument in his own name.

We, therefore, are inclined to disagree with the conclusion reached in the Snyder and Henderson cases, and hold that under Section 13083, General Code, a person is guilty of the false making of a check where the check is drawn upon a bank in which the maker has no funds or deposit account and is calculated to induce another to give credit to it as genuine and authentic, even though such person signs his own name thereto and likewise that one who utters such a check-is guilty of forgery. In so holding, we do not decide that one who draws a check in violation of Section 710-176, General Code, is guilty of forgery.

The judgment in each appeal is affirmed.

Judgments affirmed.

Conn and Savord, JJ., concur.


text:
    The State of Ohio, Appellee, v. Curry, Appellant.
    (No. 4289
    Decided May 14, 1952.)

      Mr. Boy E. Browne, director of law, and Mr. Hollis P. Allan, for appellee.

      Mr. Paul C. Laybourne, for appellant.
   Doyle, J.

The appellant, Nathaniel Curry, was charged by affidavit in the Municipal Court of Akron with conduct as follows: that “on or about the 17th day of January, 1952, at the city of Akron, in the county of Summit * * *, and for a long time next previous thereto, at the county of Summit aforesaid, did engage in gambling for a livelihood, and was then and there, and at the time aforesaid, a common gambler, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio * * V’

Upon the issue joined by his plea of not guilty, the accused went to trial and was convicted and sentenced. The appeal to this court is from this judgment, and the following claimed errors are assigned as prejudicial, for which a reversal is here sought:

“1. In the admission of testimony offered by the appellee and excepted to by the appellant.

“2. In the rejection of testimony offered by the appellant.

“3. In failing to direct a verdict and judgment in favor of the appellant at the conclusion of appellee’s case.

“4. In failing to direct a verdict in favor of the appellant at the conclusion of all the testimony.

“5. Other errors apparent on the face of the record. ’ ’

The charge in the affidavit was made pursuant to Section 13065 of the General Code of this state (as set forth in Chapter 14, Gambling, of Title I, Felonies and Misdemeanors, of Part Fourth of said Code). It provides:

“ Common Gambler. Whoever engages in gambling for a livelihood, or is without a fixed residence and in the habit or practice of gambling, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned not less than ten days nor more than ninety days, and shall give security in the sum of five hundred dollars for his good behavior for one year.”

It is to be observed that the statute is written in the disjunctive, and the offense with which we are here concerned is the engagement in gambling for a livelihood. The affidavit does not charge, nor does the evidence show, that the accused comes within the classification of a person “without a fixed residence.”

It has long been the law of this state that certain offenses under the criminal statutes or ordinances need not be confined to specific acts of commission or omission. Morgan, Supt., v. Nolte, 37 Ohio St., 23, 41 Am. Rep., 485 (ordinance providing for the punishment of a known thief).

“5. The offense of ‘being a suspicious person’ does not consist of particular acts, but of the mode of life, the habits and practices of the accused in respect to the character or traits which it is the object of the ordinance creating the offense to suppress.” City of Youngstown v. Aiello, 156 Ohio St., 32, 100 N. E. (2d), 62.

The statute under consideration seeks to suppress the activities of men and women who engage in gambling for a livelihood and whose mode of life, habits and practices are directed at least in part to that end. An offense under the statute does not require gambling to be the sole means of livelihood. It may be in conjunction with another and legitimate business, from which a livelihood is in part derived, or in addition to such business. The primary object of the ordinance is to suppress the professional or commercial gambler. Casual gambling for amusement, unconnected with a commercial or professional aspect, does not come within the prohibition of the statute.

Briefly, there is evidence in this record indicating (1) the arrest and plea of guilty of this appellant, on twenty-two different occasions between the years 1940 and 1951, for the possession of lottery slips contrary to the gambling ordinance of the city of Akron; (2) an admission by the accused to a police officer that he had been engaged in the “numbers business” and that as a “numbers writer” he had taken bets up to fifty dollars in amount in one day; (3) the return to the United States Treasury Department of a “Special Tax Return and Application for Registry — Wagering,” presently required by the federal government from those engaged in gambling, and his statement in the application that he receives wagers for or on behalf of .one John Alex, in Akron; and (4) the return in his federal income tax reports for 1949 and 1950 of income from the “numbers business.”

The record further show's that the accused is engaged in the dry cleaning business and that this business venture is exceedingly profitable to -him and his partner wife, both of whom undoubtedly can and do live well from money so legitimately obtained.

The actual fact may be that the appellant’s livelihood in chief is derived from legitimate business and that his gambling activities have returned to him but a small amount of revenue in comparison. (There is evidence showing a profit of $436.66 from the “numbers business” in the year 1950.) Be that as it may, the law under which this affidavit was filed was directed toward professional and commercial gamblers who derive a livelihood in whole or in part from commercial gambling. Whether all of one’s livelihood is derived from professional gambling or whether only a small part is so derived, the statute makes no exception, and a mode of life, habits and practices prejudicial to the public welfare which generally accompany the professional gambler, bring a culpable person within the law’s prohibition.

The appellant raises the question of the failure of proof of corpus delicti.

The corpus delicti of the offense here charged is the engagement in commercial gambling for a livelihood in full or in part, which creates a mode of life inimical to the public welfare. It is a rule of general application in this state that there must be some evidence outside of admissions of the accused, tending to establish the corpus delicti, before such admissions are admissible in evidence. The quantum of the evidence is not important as long as it tends to prove some material element of the offense charged outside of the admissions of the accused. State v. Maranda, 94 Ohio St., 364, 114 N. E., 1038.

“The character of the evidence to prove the corpus delicti, and its sufficiency for that purpose, depend largely upon the circumstances of each ease. No universal rule can be laid down, except the general principle that it must be proved by the best evidence that can be adduced; it may be by circumstantial evidence, when direct evidence is not available, but such evidence, whether direct or circumstantial, must establish the fact in each case, beyond a reasonable doubt. ’ ’ 12 Ohio Jurisprudence, Criminal Law, Section 431,

The so-called “numbers” is a gambling system based upon a scheme for the distribution of money or property, in which a valuable consideration is paid on chance alone, with no admixture of skill. Whether the scheme is called a lottery, raffle, numbers, gift enterprise, or by some other name, is of no consequence. It is one of the schemes of gambling invented by human ingenuity and used in varying forms to reap a harvest from an unwary public.

In the judgment of the members of this court, there was sufficient proof presented in the trial, not only by extra-judicial admissions but by corroborative' evidence, to justify a finding of guilt of the offense charged; and the trial court’s ruling in that respect came well within the limits of the testimony and the exhibits.

It is claimed by the appellant that the various convictions for the mere possession of lottery slips “are not for gambling. * * * All of the convictions were for the possession of articles designed to facilitate gaming.”

As heretofore stated, specific acts of commission or omission are not necessary for conviction. Whether or not the defendant himself engaged in gambling as a principal is of no particular consequence, because in this state any one who aids, abets or procures another to commit a criminal offense may be prosecuted as a principal offender; and whether one conducts a gambling enterprise as a proprietor or only acts as agent in soliciting or accepting bets from customers for his principal, he is nevertheless engaged in the business of gambling.

It is reasonable to infer that one who has been arrested and fined on numerous occasions over a period of years for the possession of lottery slips, had possession of the slips or tickets for the purpose of furthering the business of gambling; and especially is this so when these facts are weighed in the light of various admissions by the person charged that he had been engaged in the “numbers” business and that he accepted wagers on behalf of other persons.

It is also asserted that the “Special Tax Return and Application for Registry — Wagering” made by the appellant has no probative value; that “it was merely an expression of an intent to perform an illegal act in the future if certain situations developed.”

While this evidence alone does not suffice to prove one a common gambler, nevertheless it has probative value, and is admissible in evidence as bearing upon the question of the intent of the accused, upon the theory that a subsequently intended course of conduct showing a then existing state of mind is admissible in evidence from which the inference may be drawn of a previous intention to pursue a similar course of conduct, when coupled with proof of prior conduct (possession on numerous occasions of illegal lottery slips) tending to prove the offense charged. Such evidence is admissible not only under the rules of the common law but under the provisions of Section 13444-19, G-eneral Code. This section is as follows:

“In any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant.”

The statement made by the accused in the application that he received wagers for or on behalf of one John Alex is not privileged against self-crimination. He voluntarily made this statement when seeking to comply with the federal government’s taxing mandate governing all persons engaged in the business of accepting wagers. Such statement came within the rule of an admission against interest.

We find no error in the record before us, prejudicial to the rights of the defendant, and, as a consequence thereof, the judgment will be affirmed.

Judgment affirmed.

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


author: Matthews, J.

text:
    City of Cincinnati, Appellant, v. Rost et al., Appellees. Reitz et al., Appellants, v. Morr et al., County Commrs., Appellees.
    (Nos. 7578 and 7580
    Decided April 14, 1952.)

      Mr. Henry M. Bruestle, city solicitor, and Mr. Edward F. Alexander, for appellant city of Cincinnati.

      Messrs. LeRoux & Weber, for appellants Howard Reitz and Steve G. Budai.

      Mr. C. Watson Hover, prosecuting attorney, and Mr. William J. Schmid, for appellees county commissioners.
   Matthews, J.

In each of these cases, the court sustained a demurrer to the petition and rendered judgment dismissing the action. The appeals on questions of law are from those judgments.

In case No. 7578, the plaintiff sets forth in its amended petition that Sections 3518 to 3525, inclusive, General Code, provide the only lawful constitutional method whereby a village may be incorporated, and in great detail sets forth the proceedings necessary to be taken under such statutes. It then sets forth in equal detail Sections 3526 to 3531, both inclusive, General Code, providing another method of incorporating a village. It then characterizes this latter method as unconstitutional and void, as lacking due process of law.

The amended petition then recites that thirty or more residents of a certain area, a majority of whom are freeholders, have filed a petition with the defendant trustees of Columbia township, requesting the trustees to hold an election to determine whether the area should be incorporated as a municipality under the name of Village of Fairfax.

The amended petition recites also that the area includes certain territory with reference to which there was pending before the commissioners of Hamilton county prior to and at the time of filing the petition for incorporation, a petition by certain residents for the annexation of such territory to the city of Cincinnati.

The plaintiff shows also by allegations that because of the proximity of the area involved to the perimeter of Cincinnati, the city of Cincinnati is concerned or interested in what it regards as the proper development of the area, and that it would better serve all concerned to annex the area to Cincinnati, rather than to have it incorporated as a village.

Nevertheless, as plaintiff alleges, the defendants— the trustees of Columbia township and the members of the board of elections — will act upon the petition to incorporate, unless enjoined, and that because of the time schedule prescribed in the statutes, the incorporation will be an accomplished fact before the county commissioners can act upon the petition for annexation and such annexation effected. Therefore, the plaintiff seeks an injunction.

Those seeldng the incorporation of the area as a village were allowed to intervene and demur to this amended petition on the ground that “it appears on the face thereof that the plaintiff has not stated facts which show a cause of action in said plaintiff.”

The court sustained this demurrer, and, finding that the amended petition could not be amended to state a cause of action, entered judgment dismissing the action at the plaintiff’s costs. That is the judgment appealed from.

The institution of a state government — its form and powers — falls within the political domain involving the exercise of no judicial power except to enforce conformity to the Constitution of the United States. Similarly, the institution of subdivisions of a state and the distribution of state powers thereto is an exercise of the political power and raises no judicial issue, so long as the agencies to whom such state power is delegated do not exceed their authority. This delegated authority must be found in the express provisions of the state Constitution and the statutes made in pursuance thereof. There is no common law involved or inherent right vested in any one in the creation of the instruments of local self-government. Any action that conforms to the state Constitution and the statutes that conform thereto is due process of law.

The Ohio Constitution recognizes both municipalities and townships as agencies of local government, and, as to the former, contains provisions whereby they can acquire all the powers of local self-government by means of regulations operative within their limits, not in conflict with general laws. Section 3, Article XVIII, Constitution. The power thus conferred is expressly limited to the territory within the municipality.

The Ohio Constitution also expressly recognized that the territory of the state would be divided into counties, and the counties into townships, with such power within their limits as the G-eneral Assembly should see fit to confer upon them. We find no constitutional provision enabling either a municipality, a county, or a township to exercise extraterritorial powers. It would seem clear that any such claim to extraterritorial power by a “home-rule” city would find no support in Section 3, Article XVIII of the Constitution. It has been so held by the Court of Appeals of the Second Appellate District, sitting in Franklin County, in the case of Schultz v. City of Upper Arlington, 88 Ohio App., 281, 97 N. E. (2d), 218, wherein it was held that matters involving annexation were not proper functions of local self-government. "We approve the conclusion.

Therefore, if the plaintiff has any right to maintain this action it must be found in the statutes. The only statutes on this subject are Sections 3531 and 3532, General Code, which authorize “any person interested” to make application for an injunction on-certain grounds within ten days of the filing of the papers with the county recorder. It should be said here that the papers of incorporation have not been filed with the county recorder, and as the election has not been held it may very well be that a majority of the electors may vote against incorporation. Aside from this, however, it seems to us that “person interested” cannot be given an interpretation so broad as to include a contiguous municipal corporation and enable it to interfere with and control the action of the electors in an area beyond the municipal boundaries in the exercise of their political powers.

We also agree with the interpretation of “person” as used in Section 3532, General Code, made by the court in City of Lockland v. Shaver, 44 Ohio Opinions, 189, 98 N. E. (2d), 643. A municipal corporation is not within the definition as interpreted. Furthermore, the plaintiff is not “interested” within the juristic sense.

Assuming, however, that the plaintiff is vested, by Section 3532, General Code, with the right to maintain this action, we are of the opinion that the amended petition, fails to state a cause of action. The only ground alleged is that Sections 3526 to 3531, inclusive, General Code, under which the incorporation proceedings are conducted, are unconstitutional because, as is claimed, they attempt to delegate to the electors of the territory the unrestricted right to determine whether they shall organize as a village. It is said there is no provision for judicial review. ’ We find this assumption to be unfounded. A broad judicial review is provided by Sections 3531 and 3532, General Code. However, we are of the opinion that had no judicial review been expressly provided, the statutes would not be open to criticism that they delegate legislative power. The General Assembly has performed its function when it has provided alternative plans of local government, and the rules under which a choice may be made by the electors. If the statutory rules are not followed by those who employ them, the ordinary and extraordinary remedies would be available to coerce compliance. And if different governmental agencies collide in the exercise of the powers delegated to them, these same remedies are available to determine which is entitled to proceed, i. e., which is entitled to priority of action. The facts pleaded do not present an occasion for the exercise of such judicial power. The plaintiff challenges only the constitutionality of the statutes under which the defendants have been and are proceeding.

For these reasons, the judgment in case No. 7578 is affirmed.

In case No. 7580, the plaintiffs allege that they are the designated agents of the freehold electors of the territory; that they have petitioned the trustees of Columbia township wherein the territory is situated that said territory may be incorporated as a village; that their petition is still pending; that there is pending before the board of county commissioners a petition for the annexation of a portion of the territory to the city of Cincinnati; that the city of Cincinnati has instituted an action to enjoin them from proceeding with the incorporation and has obtained a temporary restraining order; that the plaintiffs herein have intervened in that action and have moved to dissolve the temporary restraining order, but the motion has not been heard; and that the city of Cincinnati — the sole plaintiff in such action — has no interest in the incorporation of territory outside its corporate limits, and its petition states no basis for enjoining said incorporation proceedings. The plaintiffs in this action (No. 7580) allege further that unless the defendants therein, who are the city of Cincinnati and the county commissioners of Hamilton county, are enjoined, they will proceed with said annexation proceedings, and thereby render moot the proceedings for incorporation. Plaintiffs seek an injunction against proceeding with the annexation proceedings until the validity or invalidity of the incorporation proceeding is determined. The trial court sustained a demurrer to this petition, and the plaintiffs not desiring to plead further judgment was rendered dismissing the action at plaintiffs’ costs.

As already noted, there is an allegation in the amended petition in case No. 7578 that the annexation proceedings were commenced prior to the commencement of the proceedings to incorporate the village. The court having sustained the defendants’ demurrer to this amended petition and entered judgment for them, the truth or falsity of that allegation has not been adjudicated. The allegation was challenged at the bar, but we find no allegation of priority in the petition in case No. 7580. This, we believe, renders that petition fatally defective. The petition presents a case of a clash between two agencies of the state without furnishing any basis for deciding which has the prior right to proceed.

The principle announced in the first paragraph of the syllabus to Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Ohio St., 247, 171 N. E., 241, is controlling. It is:

“Where power is given under the statutes to two different governmental boards to act with reference to the same subject matter, exclusive authority to act with reference to such subject matter is vested in the board first acting under the power. ’ ’ See, also, State, ex rel. Chisholm, v. McKenzie, 16 C. C. (N. S.), 172, 31 C. D., 475.

For these reasons, the judgment in case No. 7580 is also affirmed.

Judgments affirmed.

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


text:
    Hay, Admx., Appellant, v. Norwalk Lodge No. 730, B. P. O. E., et al., Appellees.

      (No. 621
    Decided October 22, 1951.)

      Messrs. Catri & Catri, for appellant.

      Mr. G. Bay Craig, Messrs. Miller & Miller and Messrs. Carpenter & Carpenter, for appellees.
   Fess, J.

This is an appeal on questions of law from a judgment sustaining a demurrer to the second amended petition, on the ground, that it fails to state a cause of action. Plaintiff not desiring to further plead, the action was dismissed.

Plaintiff, as administratrix, brought her action against the Norwalk Lodge of the Benevolent and Protective Order of Elks, five individuals as trustees of the lodge, and one Harry E. Sanders. It is alleged that the five individual defendants are the trustees of a nonincorporated organization known as Norwalk Lodge No. 730, Benevolent and Protective Order of Elks. The first ground of the demurrer, which was overruled, was a defect of parties defendant and want of legal capacity in the defendants named as trustees to be sued.

It is elemental that an unincorporated organization or association, in the absence of statute, is not a legal entity subject to be sued. State v. Fremont Lodge of Loyal Order of Moose, 151 Ohio St., 19, 84 N. E. (2d), 498; Koogler et al., Trustees, v. Koogler, 127 Ohio St., 57, 186 N. E., 725. In the absence of statutory authority to sue the organization, the action may be brought against the individual members.

Sections 9462 to 9509, General Code, dealing with fraternal organizations, make no provision for suits by or against such organizations. In the Koogler case, supra, the opinion recites that the defendant lodge was a fraternal benefit society under Section 9462, General Code, and that by virtue of Section 10060, General Code, such society could be sued. But an examination of Section 10060, indicates that it refers to secret benevolent associations referred to in Section 10057, General Code. Cf. 77 Ohio Laws, 146. But in passing upon the demurrer, a court may not take judicial notice of the fact that the defendant lodge is a secret benevolent association or a fraternal benefit society. The demurrer must be decided on the allegation of the petition, which in the instant case is that the defendant is a nonincorporated organization. It follows that, as to the lodge and the individual defendants as trustees, the demurrer was properly sustained.

As indicated above, the trial court overruled the demurrer on the ground of want of capacity to be sued, but sustained it on the ground that the petition fails to state a cause of action.

The more pertinent allegations of the petition are as follows:

The decedent was operating a truck in a northerly direction on New State road when a large limb or limbs fell from a tree located on the land of the defendants on the easterly side of the highway and struck the top of the cab, forcing the same onto decedent’s body, injuring him so that he lost control of the truck, crashed into a tree, and died as a result of his injuries. The defendant lodge was the owner of land on the east side of the road and the defendant Sanders was the owner of land south of and adjacent to the land of the lodge; and there was an established fence line thirty feet east of the center line of the highway.

Plaintiff alleges further that for a number of years a tree was located at the intersecting point of the established boundary line between the defendants ’ properties and the established fence line running parallel to the New State road; that said tree had grown very large and parts of the many large limbs of the tree owned by the defendants extended over and above the traveled portion of the New State road; that several years prior to July 20, 1949, said tree was struck by lightning, extensively damaged and weakened; that the damage to the tree was visible and apparent to these defendants for a period of several years; that after said tree was struck and damaged by lightning,' apparent natural processes of decay set in and further weakened said tree and its branches which extended over and above the traveled portion of the road; that at all times herein mentioned defendants had knowledge that portions of said tree extended over the highway; that for a period of several years the defendants had knowledge that the tree had been struck by lightning, and had knowledge that the tree had been damaged and weakened; that the defendants negligently allowed and permitted said tree to remain in a damaged, weakened and defective condition near said highway when they knew that portions of said tree were damaged, weakened and defective and would fall in said highway and injure travelers thereon; and that defendants failed and neglected to remove the tree or the damaged or weakened portions thereof, failed and neglected to wire or brace the damaged or weakened portions thereof or to do anything by way of making said tree secure, and failed and neglected to give notice to the traveling public of the defective, weakened and damaged condition then and there existing.

Upon this phase of the appeal we are required to determine whether the above allegations state a cause of action against the owner of the property abutting the highway.

It is singular that no reported decision in Ohio, directly in point, has been brought or has come to our attention. Gschwind, Admx., v. Viers, 21 Ohio App., 124, 152 N. E., 911, holds merely that a charge that the owner of property upon which a tree was situated had the duty to exercise ordinary care for the safety of pedestrians using the sidewalk is as favorable as plaintiff had a right to ask. Since the verdict was for the defendant, the court was not called upon to determine the correctness of the charge, nor was it incumbent upon the court to grant final judgment.

2 Restatement of the Law of Torts, 985, Section 363, recites:

“Neither a possessor of land, nor a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others outside the land by a natural condition of the land other than trees growing near a highway.”

The caveat to the rule is significant:

“The Institute expresses no opinion as to whether a possessor of land who permits trees not planted by himself or his predecessors to remain on a part of the land near a public highway is or is not under a duty to exercise reasonable care to prevent their condition becoming such as to involve a grave risk of causing serious bodily harm to those who use the highway and the burden of making them safe is not excessive as compared to the risk involved in their dangerous condition. ’ ’

We start with the premise that every person may make such use as he will of his own property, provided he uses it in such manner as not to invade the rights of others.

Carmen v. Steubenville & Indiana Rd. Co., 4 Ohio St., 399, 415; Frazier v. Brown, 12 Ohio St., 294, 299; City of Tiffin v. McCormack, 34 Ohio St., 638, 644, 32 Am. Rep., 408; Louden v. City of Cincinnati, 90 Ohio St., 144, 152, 106 N. E., 970, L. R. A. 1915E, 356, Ann. Cas. 1916C, 1171.

Conversely, the law does impose upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact and to use his own property in such a manner as not to injure that of another. Philadelphia Fire & Marine Ins. Co. v. Hirschfield Printing Co., 73 Ohio App., 27, 29, 53 N. E. (2d), 827. The cases upon which this principle is based relate to negligent acts resulting in injury to another’s property as distinguished from passive acquiescence in respect to a hazardous condition upon the owner’s premises.

With respect to the liability of the owner of a decayed tree to persons injured off the premises, the English and American cases are in conflict. A distinction is drawn between the liability of an owner of an artificial structure toward one injured in the street or highway by a falling object, and the owner of a decayed tree. The maintenance of an artificial structure, such as a sign or shutter overhanging a sidewalk over which the owner has control, imposes liability upon such owner for injury to a pedestrian with the attendant evidence rule of res ipsa loquitur. In a case where an object is suspended over a street or highway, and in the course of events must fall unless suspended by artificial means employed by the owner, such owner is absolutely bound to make it secure. But no such liability is imposed upon the owner of a growing tree. A branch of a growing tree is not kept from falling by artificial means employed by its owner, but it is kept intact and firm by natural processes. It is only when injury or decay interferes with the natural processes that human intervention is required. Nor is the principle of Rylands v. Fletcher, L. R. 3 House of Lord’s Cases, 330, 1 English Ruling Cases, 235, applicable. As pointed out by Rowlatt, J., in Noble v. Harrison, 2 K. B., 332, 49 A. L. R., 833, 836, a tree is not like an artificial reservoir which the owner is bound to keep from escaping at his peril. To grow a tree is a natural use of the soil. It is not in itself a dangerous instrumentality, although through age and decay it may become a dangerous object. Neither is a tree whose branches overhang a highway a nuisance unless such branches obstruct the free passage of the users of the highway.

A number of cases on the subject are reviewed in the annotations found in 19 A. L. R., 1021, 49 A. L. R., 840, 72 A. L. R., 615, and 11 A. L. R. (2d), 626. A review of those decisions leads to the conclusion that in the absence of knowledge of a defective condition of a branch of a tree which in the course of natural events is likely to fall and injure a person in the highway, no liability attaches to the owner of the tree. On the other hand, where the owner has knowledge of the dangerous condition of the tree or its branches, it is his duty to exercise reasonable care to prevent the fall of the tree or its branches into the highway.

Two cases are cited, taking the position that there is no duty on the owner of premises abutting a rural highway to examine trees growing either on the premises or along the highway to determine whether, through natural processes of decay, such trees have become dangerous to users of the highway. It may be noted, in passing, that whether the tree is on the owner’s premises or on the untraveled portion of the right of way is immaterial in Ohio since the owner of the fee retains the exclusive right to the trees growing thereon for all purposes not incompatible with the right of way. Phifer v. Cox, 21 Ohio St., 248, 8 Am. Rep., 58; Daily v. State, 51 Ohio St., 348, 37 N. E., 710, 46 Am. St. Rep., 578, 24 L. R. A., 724; Ohio Bell Tel. Co. v. Watson Co., 112 Ohio St., 385, 147 N. E., 907. Cf. Hofius v. Carnegie-Illinois Steel Corp., 146 Ohio St., 574, 67 N. E. (2d), 429.

The two cases relieving the owner of premises abutting a rural highway from liability are Zacharias v. Nesbitt (1921), 150 Minn., 369, 185 N. W., 295, 19 A. L. R., 1016, and Chambers v. Whelan (1930), 44 F. (2d), 340, 72 A. L. R., 611. The decisions rest upon two grounds: First, that it is unreasonable to require the owner of rural land to inspect his property with regard to naturally arising defects because of the burden thereby imposed upon the owner of large and unsettled tracts of land; second, that the safety of a highway is a duty imposed upon public authorities.

In the Zacharias case the tree, which was obviously old and decayed, was within the limits of the highway, and a number of years prior to the accident the owner had received notice from the authorities to remove the tree from the highway limits. The court said the notice was merely a warning that if the owner desired to remove and appropriate the tree, he might do so, otherwise the authority would do it, and that the law did not compel the owner to do any affirmative act in respect to natural objects found in or upon the highway limits in order to protect travelers thereon.

The other case relating to a rural area is Chambers v. Whelan, supra, which involved an obviously decayed tree standing upon defendant’s property, which fell across a country road upon the plaintiff while driving thereon. The opinion is written by an eminent authority, Judge John J. Parker. The decision turns, however, upon the duty of the owner of a large tract of land to inspect. The court interpreted the allegations of the petition that the defendants knew, or in the exercise of reasonable care could have known, of the dead and decayed condition of the tree as an allegation of failure to inspect. It was held that the allegation was not good as an allegation of knowledge, bnt merely as one that the dangerous condition of the tree was discoverable by the exercise of due care, i. e., by reasonable inspection.

The court stated that the case did not involve the liability of one who, with knowledge of the dangerous condition of a tree, maintains it on his property when it is liable to fall and injure persons upon a highway.

The opinion recognizes that even though a duty may be imposed upon public authorities to maintain the safety of a highway, an abutting property owner is not necessarily absolved from his duty with respect thereto. But in West Virginia a statute imposes upon the highway officials the duty of removing all dead timber standing within fifty feet of a highway and no like duty is imposed upon the owner. No such statute is found in Ohio. It may also be noted that the duty imposed upon a municipality by Section 3714, General Code, does not absolve the abutting property owner from his duty to the traveling public. Herron v. City of Youngstown, 136 Ohio St., 190, 24 N. E. (2d), 708.

The Zacharias and Chambers cases are the only authorities, referred to in the annotátion in 11 A. L. R. (2d), 626, 633, holding that there is no liability on the part of the owner of premises abutting a rural highway. However, in Brandywine Hundred Realty Co. v. Cotillo (C. C. A. 3), 55 F. (2d), 231, the court in a case arising in Delaware held that the owner of a dead tree standing in a suburban forest was liable to an autoist injured by the falling of the tree.

It has been said that there is no common-law duty imposed upon the owner of trees abutting a highway. Nevertheless, the time-honored principle that one shall so use his own property as not to injure another is of ancient origin. Plaintiff’s decedent ha,d the lawful right to drive upon the public highway. Responsibility for the control of one’s property is one of the burdens of ownership. Since the abutting property owner has the right to enjoy his property without interference by the traveling public and has the control of structures located on and trees growing upon his property, so, also, the traveling public is entitled to pass without any injury which the owner by reasonable care and diligence may prevent. The answer does not rest upon an asserted responsibility of the owner of private property for the same condition of a public highway.

An owner of property abutting a highway has the obligation to use reasonable care to keep his premises in such condition as not to endanger travelers in their lawful use of the highway. If he fails to do so and thereby renders the way unsafe for travel, he should be liable therefor. It is, therefore, concluded that, although there is no duty imposed upon the owner of property abutting a rural highway to inspect growing trees adjacent thereto to ascertain defects which may result in injury to a traveler on the highway, an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway. If the danger is apparent, which a person can see with his own eyes, and he fails to do so with the result that injury results to a traveler on the way, the owner is responsible because in the management of his property he has not acted as a reasonably prudent landowner would act.

According to the allegations of the petition, the tree was upon the division line between adjoining owners. As to the tree itself, the owners are tenants in common (1 American Jurisprudence, 539, Section 58) and as such are answerable for such injury as may be attributable to their failure to exercise ordinary care.

As to the lodge and the individual defendants as trustees thereof, the judgment is affirmed. As to the defendant Harry E. Sanders the judgment is reversed and the cause remanded for further proceedings.

Judgment accordingly.

Conn and Savord, JJ., concur.

      Under the liberal rule in Ohio applicable to the construction of pleadings, the interpretation made in the Chambers case would not prevail, but in the case before us the allegation is that the defendant knew of the defective condition of the tree.


author: Ross, J.

text:
    Reiser, Appellant, v. The Cincinnati Street Ry. Co., Appellee.

      (No. 7531
    Decided February 4, 1952.)

      Mr. Harry Kasfir, for appellant.

      Mr. John M. McCaslin, Jr., for appellee.
   Ross, J.

The appeal here considered on questions of law is from a judgment of the Court of Common Pleas of Hamilton County, wherein a judgment of the Municipal Court of Cincinnati was reversed. The latter judgment was predicated upon a verdict for plaintiff.

The action was based upon the claim of plaintiff that she was injured while a passenger on a bus operated by defendant, when she was thrown to the floor of the bus.

In her bill of particulars, plaintiff states three charges of negligence:

“First: The driver of the bus, who was the employee of the defendant company, so carelessly, negligently and intentionally caused said bus to be operated in such a violent and unusually jerky manner and veered to the right and brought it to a stop with such suddeness as to throw this plaintiff backwards.

“Second: The defendant company’s employee failed and neglected to give any warning whatsoever that said bus was to be operated with such a sudden, unusual and violent jerk.

“Third: The defendant through its employee, the driver, failed and neglected to have said bus under his control and to operate it in a careful and proper manner. ’ ’

In the judgment entry of the Court of Common Pleas it is stated that the judgment of the trial court is reversed because of failure of such court to give special charge No. 8, requested by the defendant. This is the sole ground of reversal. This charge is as follows:

“I charge you that the injuries to the passengers caused by jerks or jars which are necessarily incident to the proper operation of motor busses, impose no liability on the street railway company, and if you find that the plaintiff on the occasion in question, was injured by reason of such a jerk or jar, then the defendant is not liable in this case, and your verdict must be for the defendant.”

This charge constituted a correct statement of law applicable to the facts in the case. Cleveland Ry. Co. v. Olsowa, 3 Ohio Law Abs., 526, 527; Yager, Recr., v. Marshall, 129 Ohio St., 584, 587, 196 N. E., 375; Washington Fidelity National Ins. Co. v. Herbert, 125 Ohio St., 591, 183 N. E., 537. The charge should have been given by the trial court. The refusal to give it constituted error, prejudicial to the defendant. Chesrown v. Bevier, 101 Ohio St., 282, 128 N. E., 94; Yager, Recr., v. Marshall, supra.

In addition to the ground selected by the Court of Common Pleas for reversal of the judgment, we agree with the appellee that the trial court also erred, to the prejudice of the defendant, in giving a special charge (No. 9) requested by plaintiff. This charge is as follows:

“I charge you, as a matter of law, that you may determine from the evidence if there was or was not an unusual jerk in the instant case and in determining that question you may consider the evidence as to the force of Mrs. Reiser’s fall, if any.”

Although in this instruction there are used the words, “as a matter of law,” it contains no statement of a rule of law, but, on the contrary, is merely a commentary on the effect of certain evidence, and refers merely to the possible mental processes of the members of the jury. It unduly emphasizes the evidentiary value of a mere item of evidence, and the inferences to be drawn therefrom.

Subdivision 5 of Section 11420-1, General Code, provides:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request them to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced. ’ ’

Prom the evidence contained in the bill of exceptions, it appears that there was a sharp conflict involving the conduct of the plaintiff just prior to her fall to the floor of the bus. There was substantial and credible evidence that she was reading a letter and merely lost her balance as the bus proceeded over a rough pavement. The plaintiff denied this, stating she could not read without glasses. The statement, therefore, by the court in a special written instruction, which the jury had before it in its consideration of the evidence, that the jury could consider “the force of” the plaintiff’s fall in determining whether the jerk was “’unusual” or not, could have no other effect than to impress upon the jury the importance of the fall, not as reflecting upon the extent of plaintiff’s injuries, but, on the contrary, whether her fall was due to a usual jerk or jar, made necessary by the proper operation of the bus over a rough street, or to an unusual jerk or jar, unnecessary in the proper operation of the bus.

In view of the conflict in the evidence as to what was responsible for plaintiff’s fall, such statement of the court as to the importance of the force of plaintiff’s fall was improper and could not help but prejudice the case of the defendant. The jury, in other words, was told that from the force of the fall, it could determine the character and extent of the jerk or jar. Even if such statement constituted sound reasoning, which is not admitted, such statement by the trial court exceeds its prerogative as set forth in the section of the law hereinbefore set out. This error, prejudicial to the defendant, also required a reversal of the judgment of the trial court.

The judgment of the Court of Common Pleas should have included this error also as a predicate for its reversal of the judgment of the trial court, and this court, therefore, modifies such judgment of the Court of Common Pleas by including the giving of such charge No. 9, requested by plaintiff, as a ground for reversal, and, as so modified, affirms such judgment of the Court of Common Pleas.

Judgment modified and as modified affirmed.

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