author: Wiseman, P. J.

text:
    Kitchens, Appellant, v. Duffield, Appellee. (Two cases.)
    (Nos. 4016 and 4017
    Decided October 6, 1947.)

      Messrs. McGhee, Rowe & Evans and Mr. Frank J. 'Gollopy, for appellant.

      Messrs. Vorys, Sater, Seymour & Pease, for appellee.
   Wiseman, P. J.

These two actions have been appealed from the Common Pleas Court of Franklin-county, and are consolidated as the same rulings were made in both actions and the questions of law involved are identical. While the opinion herein rendered is understood to apply to both actions, the court will use-terms in the singular.

The plaintiff, Mary Eleanor Kitchens, while a passenger in an automobile owned and driven by the defendant without payment therefor, was injured when-the automobile in which she was riding collided with-an army truck then in operation within the confines of Lockbourne Army Air Base located in Franklin county, Ohio. In her second amended petition the plaintiff alleged that the land comprising the air base was acquired by the United States from private owners, ceded to the United States by the state of Ohio,, and accepted by the United States War Department; that at all times referred to the air base was operated by the United States War Department as a military reservation and.the United States was in a state of" war; that within the military reservation there were passageways upon which vehicular traffic moved; that the collision took place at the intersection of two-of such passageways, to wit, avenue “C” and 5th street; and that the collision resulted proximately from the carelessness and negligence of the defendant in certain particulars which are set out.

The plaintiff, William F. Kitchens, the husband of Mary Eleanor Kitchens, instituted a separate action, making the same allegations • as above set forth, in which he seeks to recover for expenses incurred by-him by reason of injuries suffered by his wife.

To the second amended petition the defendant filed a demurrer for the reason that the petition does not state facts sufficient to constitute a cause of action under the guest statute of .Ohio, as there is no allegation that the injuries suffered were caused by the wilful or wanton misconduct of the defendant. The demurrer ■was sustained ■ and the plaintiff not desiring to plead further, the second amended petition was dismissed.

Plaintiff has assigned as error:

1. The sustaining of defendant’s motion to strike out certain allegations in plaintiff’s petition and first .amended petition.

2. The sustaining of defendant’s demurrer to the plaintiff’s second amended petition.

In the briefs, matters are discussed which we do not regard pertinent except on trial of the case. In our judgment there is only one question presented: Does the guest statute apply to the operation of motor •vehicles on the roadways at Lockbourne Army Air Base?

The guest statute (Section 6308-6, General Code) provides as follows:

“The owner, operator or person responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries or death are caused by the wilful or wanton misconduct of such operator, owner or person responsible for the operation of said motor vehicle.”

It is conceded that the second amended petition is demurrable, if the guest statute applies, as there is no allegation that the injury was caused by wilful or wanton misconduct of the operator of the automobile, the defendant herein. Vecchio v. Vecchio, 131 Ohio St., 59, 1 N. E. (2d), 624. However, the plaintiff contends-that the guest statute does not apply to the operation of motor vehicles at the air base. More specifically,, the plaintiff contends that Section 6308-6, General Code, applies only to the operation of motor vehicles on public highways; and that the passageways, roads- and driveways within the confines of the air base are-not public highways.

For the purpose of decision on the demurrer, the-allegations, that the lands occupied by the air base-were acquired by the .United States, ceded to the-United States by the state of Ohio and accepted by the United States War Department, and that the air base-was operated by the United States War Department as a military reservation, must be taken as true. At this point, application must be made and effect given to Section 457, Title 16 of the United States Code, entitled “Action for death or personal injury within national park or other place under jurisdiction of' United States; application of state laws.” That section provides:

“In the case of the death of any person by the neglect or wrongful act of another within a national park or other place subject to the exclusive jurisdiction- of' the United States, within the exterior boundaries’ of any state, such right of action shall exist as though-the place were under the jurisdiction of the state-within whose exterior boundaries such place may be; and in any action brought to recover on account of injuries sustained in any such place the rights of the-parties shall be governed by the laws of the state within the exterior boundaries of which it may be.” (Emphasis ours.)

That section became effective February 1, 1928, and’ was in full force and effect at the time the collision occurred. The section requires the application of the laws of the state of Ohio. The Ohio guest statute became effective June 15, 1933. However, “the laws of the state” as used in the federal statute have been construed to mean existing law as declared from time to time. Murray v. Gerrick & Co., 291 U. S., 315, 319, 78 L. Ed., 321, 54 S. Ct., 432, 92 A. L. R., 1259; Capetola v. Barclay-White Co. (Pa.), 48 F. Supp., 797. Thus the laws of Ohio are applicable to personal injury claims arising at the Lockbourne Army Air Base. The Ohio guest law, therefore, is applicable if the guest statute is construed to apply to both public and private roads or driveways.

Are the roadways or driveways within the confines of the Lockbourne Army Air Base private or public roads, driveways or highways? It will serve no useful purpose to refer to common-law definitions as this will only lead to a confusion and contradiction of terms. The terms, “private roads,” “ways,” and “public highways,” carry a different meaning at common law than under modern case law or statutes governing the operation of motor vehicles. In our opinion definitions given to “public” and “private” roads, driveways or highways under the Uniform Traffic Act, effective September 6, 1941, are helpful, but not controlling, in determining this question. Reference is made to Section 6307-2, General Code, which defines “street or highway” as follows:

“The entire width between the boundary lines of every way open to the use of the public as a thoroughfare for purposes of vehicular travel.” (Emphasis ours.)

The same section defines “private road or driveway” as follows:

“Every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other persons.” (Emphasis ours.)

In our judgment we may take judicial notice that a military reservation owned and operated by the United States government is under the exclusive jurisdiction of the War Department; that during wartime the public is excluded and persons may enter only by permission of the commanding officer; that the roadways and driveways in the military reservation are not open to the public as a thoroughfare for purposes of vehicular travel; and that the roadways or driveways, although constructed at public expense, were constructed for the sole use of the personnel of the air base and of the persons having business or missions therein. Without question, the roadways or driveways in the air base were under the exclusive jurisdiction and control of the War Department and were not “open to the use of the public as a thoroughfare for purposes of vehicular travel,” but were “used for vehicular travel by the owner,” which in this case was the United States government, “and those having express or implied permission” from the government acting through the War Department “but not by other persons.”

In State v. Root, 132 Ohio St., 229, 6 N. E. (2d), 979, wherein the defendant was charged with manslaughter for killing a person while driving an automobile on a roadway in the grounds of Longview Hospital, a determination of the question whether the roadway was a public highway was required. The court held that such roadway was not a public highway, and the conviction for manslaughter was reversed. The test applied is found in the opinion of the court. On page 231 the court said:

“The essential facts as to the driveway in this case were not disputed. The driveway was located wholly on hospital grounds. It was built and maintained by the hospital. It could be relocated or vacated at any time by the hospital and the ground used for other purposes. According to the record, it was never supervised or controlled by the traffic or highway authority of city, county or state. It appears to have been built by the hospital primarily for the use of the hospital, its employees and whoever else might have business with the hospital. In this respect it may be said to be a hospital driveway rather than a road or highway to be traveled by the public generally.”

The court then discussed the fact that the hospital driveway was constructed with public funds without special permission of the General Assembly of the state of Ohio. However, the court, on page 232, made this comment:

‘ ‘This does not mean, of course, that Longview Hospital had no right to construct this driveway for its own use and that of the public, but it does clearly indicate that such driveway is not to be regarded as a public road or highway in the sense in which such terms are generally used.”

On page 233, the court concluded as follows:

“We are obliged to conclude, therefore, that where a driveway, leading into and located wholly upon state hospital grounds, is built, maintained and controlled by the hospital for its own use and the public having business therewith, and where such driveway was never dedicated or legally accepted as a public thoroughfare, it does not come within the purview of ‘roads or highways’ as found in Section 12404-1, General Code, defining manslaughter in the second: degree.”

As we view it, the fact that a road, highway or driveway has been constructed at public expense does not necessarily mean that such a road, highway or driveway will be open to the use of the public as a thoroughfare for purposes of vehicular travel.

In a general way, roads, highways or driveways may be classified in at least four classes with respect ■to the expense of construction and use, as follows, (1) constructed at public expense for unrestricted use of the public, (2) constructed at public expense for limited or restricted use by persons given express or implied permission by the owner, (3) constructed at private expense for public purpose, and (4) constructed at private expense for private purpose.

In our judgment a public road, highway or driveway may be defined as a way open to the public at large without distinction, discrimination or restriction, except such as is incident to regulations calculated to secure to the general public the largest practical benefit therefrom and enjoyment thereof. The prime essential of a public highway is the right to travel on it by all the world, and not the actual exercise of the right. The proper test is the use to which such roadways or driveways are put. In our opinion when the proper test is applied to the facts in this case, the roadways or driveways at Loekbourne Army Air Base do not properly fall in either class 1, 3 or 4, but in class 2 as stated above. In our considered opinion such roadways or driveways are private roadways or driveways and not public highways.

Does the guest statute (Section 6308-6, General Code) apply to private roadways and driveways? As there are no reported cases in Ohio determining this question, this case becomes one of first impression. In Ohio, at common law a driver of a motor vehicle was liable to a guest for ordinary negligence, whether such motor vehicle was operated on a public highway or a private roadway or driveway. This statute being in derogation of the common law it must be strictly construed. Miller v. Fairley, 141 Ohio St., 327, 48 N. E. (2d), 217. It must be observed that the guest statute does not expressly limit its application to public highways. It is significant that no such limitation is found in the statute; its provisions are broad and all inclusive.

It is urged that the term, ‘£ operator, ’ ’ as used in the guest statute should be given the meaning of “operator” defined in paragraph 14, Section 6290, General Code, as including “any person who drives or operates a motor vehicle upon the public highways”; and that the words, “motor vehicle,” as used in the guest statute should- be given the same meaning found in Section 6290, General Code. It must be noted that Section 6290, General Code, reads: “Definition of terms, as used in this chapter and in the penal laws, except as otherwise provided,” while the guest statute and Section 6290, General Code, are both found in Chapter 21, entitled “Motor Vehicles.” It must also be observed that the word, “operator,” is also defined in Section 6307-2, General Code, which is in the same chapter and is a section of the Uniform Traffic Act, as follows:

“ ‘Driver or operator.’ Every person who drives or is in actual physical control of a vehicle, trackless trolley or street car.”

It will be observed that that definition does not confine the meaning of “operator” to a driver of a motor vehicle on a public highway. The Uniform Traffic Act did not become effective until September 6, 1941. It would be more appropriate to consider the definition of “operator” as defined in Section 6290, General Code, as amended in 1933 at the same session of the Legislature at which the guest statute was passed, and which is found in 115 Ohio Laws, 454, wherein “operator” is defined as follows:

“ ‘Operator’ includes any person who drives or operates a motor vehicle upon the public highways.”

That section was passed as a regulatory measure undér the police power of the state. See State, ex rel. City Loan & Savings Co., v. Taggart, 134 Ohio St., 374, 17 N. E. (2d), 758. The state has never adopted the policy of passing regulatory measures relative to the operation of motor vehicles on private property, private roadways or driveways. For this reason, definitions given in other parts of the Code, such as Section 6290 and the Uniform Traffic Act (Sections 6307-1 to 6307-110, inclusive), although parts of the same chapter in which the guest statute (Section 6308-6, General Code) is found, have little or no controlling force in determining the intention of the Legislature when it enacted the guest statute. The guest statute is not a part of the Uniform Traffic Act, and is not in pari materia with sections in that act or with Section 6290. The guest statute operates in the field of substantive law.

The purpose of the guest statute, as assigned by text writers and authors on the subject, is to remedy an evil or mischief which arose by a guest pressing claims for personal injuries against the driver in which both the guest and the driver were guilty of collusion or fraud in effecting recovery. The same motive, which prompted the Legislature to deprive a guest of his common-law right of action when the accident occurred when the motor vehicle was being operated on a public highway, applies with equal force to the operation of a motor vehicle on a private roadway, highway or driveway. We approve of the observation made by the lower court on a motion to strike that it is just as reprehensible for a guest to sue his host for ordinary common-law negligence in the operation of his motor vehicle on a private way as it would be on a public thoroughfare. No reason is assigned why the state Legislature should make a distinction. Unquestionably it lay within the power of the Legislature to make such distinction. If it had intended to do so it would have used apt language to accomplish such purpose. As hereinbefore stated, it is significant that the guest statute contains no prgvision with respect to place of operation.

In interpreting a statute and in giving effect to what appears to be the legislative intent, such statute should be given a fair and reasonable construction in conformity to its general object, in order to effectuate such object and purpose, and should not be given such an interpretation as would thwart such purpose. 37 Ohio Jurisprudence, 657, Section 362. Courts should and frequently do refer to the legislative purpose, aim or motive, and the design to be accomplished thereby. 37 Ohio Jurisprudence, 662, Section 363. In interpreting a statute the mischief or evil to be remedied should be given great consideration by the court. In 37 Ohio Jurisprudence, 668, Section 368, is found the following statement:

“The terms of a statute are to be interpreted in the light of its historical background. That is to say, where the language of a statute is obscure or of doubtful meaning, the court, in construing such statute, may with propriety recur to the history of the times when it was passed, to the attending circumstances at the time the law was adopted, to the cause, occasion, or necessity for the law, to the imperfections to be removed, or, in other words, to the mischief sought to be avoided and the remedy intended to be afforded. Indeed, the mischief to be remedied has been declared to be the greatest subject for the court’s consideration when it comes to pass upon the interpretation of doubtful provisions. Where a statute is designed to give a substantial remedy for an admitted evil, the language should be given a fair construction in order to advance the remedy and correct the evil sought to be abated. However, if the Legislature has not made the remedy coextensive with the evil by the terms of their act, the court may not do it by construction. On the other hand, the language, when clear and comprehensive, is not to be limited in view of the particular instances which may be supposed to have led to the adoption of the rule, but the 'act should be held to embrace all cases fairly coming within its terms if they are also within its reason and spirit.” (Numerous Ohio cases cited.)

In Miller v. Fairley, supra, the court had before it the construction of the guest statute. On page 335 the court said:

“The language of a statute, designed to provide a substantial remedy for an admitted evil, should be given a fair construction in order to advance the remedy and correct the evil sought to be abated. Iroquois Co. v. Meyer, 80 Ohio St., 676, 89 N. E., 90. However, if the General Assembly has not made the remedy coextensive with the evil by the terms of the act, a court cannot do so by construction. State, ex rel. Peters, v. McCollister, 11 Ohio, 46, 56.

“The statute must be construed to effectuate its purpose, but, being in derogation of the common law and the rights of those who may be injured by the negligent operation of an automobile while being transported therein, its general provisions must be strictly construed, while the exception under consideration in this case must be liberally construed in favor of those who come within the purview of such exception.” (Cases cited.)

While the court held that exceptions to the statute-should be liberally construed, it had before it the question whether the plaintiff had made payment for transportation. In the case at bar the plaintiff does not fall in the category of an exception and such a contention cannot be successfully supported.

In giving consideration to applicable rules of statutory construction and in considering the mischief or evil to be remedied and the intent of the Legislature-as drawn from all inclusive provisions of the statute,, we are of the opinion that the guest statute applies-to the operation of motor vehicles on private roadways,, highways or driveways, as well as on public highways. The demurrer to the second amended petition was properly sustained.

Because of the view we take of this matter and the-construction given to the guest statute, we are of the-opinion that the trial court did not commit error in sustaining motions to strike certain allegations from the petition and the first amended petition.

The judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


source: Caselaw Access Project

author: Ross, J.

license: Public Domain

text:
    In re Moreno. In re Lunce.
    (Nos. 6980 and 6981
    Decided July 8, 1948.)

      Mr. Louis G. Gapelle, for appellants.

      Mr. Henry M. Bruestle, city solicitor, Mr. Robert J. Paul, city prosecutor, and Mr. Don Burkholder, for appellee.
   Ross, J.

These appeals on questions of law from judgments of the Court of Common Pleas of Hamilton county are considered together. They involve similar questions. The appellants appealed to the .Court of' Common Pleas for writs of habeas corpus, upon the-ground that their conviction and commitment to the-Cincinnati Workhouse were unauthorized and contrary to law. From the record it appears that the-commitment upon which Helen Moreno is held is in the following terms:

“The State of Ohio “State of Ohio, “Hamilton county, “City of Cincinnati, J

SS The Municipal Court of Cincinnati.

“To the City Manager of the city of Cincinnati, Ohio, Greeting:

“Whereas, Helen Moreno, hereinafter referred to-as the defendant, having been arrested on a sworn complaint of one John Fahnbach, charging said defendant with Section 4131, General Code, habitual offender, said offense having been committed in the city of Cincinnati, county .of Hamilton and state of Ohio, on the —— day of Jan. 12/48, and this day the above named defendant having been tried and convicted of the charge before the Honorable Frank M. Gusweiler, Judge of the Municipal Court of Cincinnati, said defendant not having demanded the right of a trial by jury, and sentenced by said court to be imprisoned in the work house of Cincinnati, Ohio, under the direction, management, and control of the city manager of Cincinnati, Ohio, and kept for the term of 3 years from the date of the within commitment, and pay a fine of-dollars, and the costs of prosecution 4 dollars and-cents, and that he stand committed to the work house of Cincinnati, Ohio, until said fine and costs are paid, or until he is discharged therefrom by allowing ■ a credit of three dollars per day on such fine and costs for each day’s imprisonment in such work house, or until otherwise discharged by due course of law.

“Therefore, in the name of the state of Ohio we command you as city manager of Cincinnati, Ohio, and keeper of the work house of Cincinnati, Ohio, to receive the said Helen Moreno, the above named defendant in your custody in the work house of Cincinnati, Ohio, there to remain until he has fully executed the terms of the sentence set out in this commitment or until otherwise discharged by due course of law.

“In Testimony whereof, I have hereunto set my hand, and affixed the seal of this court at Cincinnati, Ohio, this-day of Jan. 16,. 1948.

“Elmer P. Hunsicker “Clerk of the Municipal Court “By (Signed) J. Diekhoner, “Deputy Clerk.”

The commitment of Charles Lunce is in like terms.

Also among the exhibits is an affidavit forming the basis for the commitment of Charles Lunce as an habitual offender. This affidavit is in the following terms:

“ State of Ohio, “Hamilton county, * ‘ City of Cincinnati,

Affidavit fSS The Municipal Court of Cincinnati

“John Pahnbach, being .first duly cautioned and sworn,- deposeth and said that one Charles Lunce having been sentenced to the Cincinnati workhouse on July 7, .1947, for 13 days being case No. 87462 and having been sentenced to the Hamilton county jail on Sept. 6, 1946, for 30 days being case No. 54700 and having been sentenced to the Cincinnati workhouse on Aug. 11,1945, for 30 days being case No. 53693, and having been sentenced to the Cincinnati workhouse on August 11, 1945, for 12 months being case No. 53699, on or about the 12 day of January, A. D., 1948, at and in the city of Cincinnati, county of Hamilton, and state of Ohio, shall be deemed to be an habitual offender each previous conviction having been for a violation of a city ordinance or state misdemeanor, contrary to and in violation of Section 4131 of the General Code and against the peace and dignity of the state of Ohio.

John Fahnbach.

“Sworn to and subscribed before me and filed this court this 12 day of January, A. D., 1948, iu

“Elmer F. Hunsicker,

“Clerk, of the Municipal

“Court of Cincinnati,

“By R. Underwood,

“Deputy Clerk.”

The affidavit applying to Helen Moreno reads:

“State of Ohio, “Hamilton county, “City of Cincinnati,

Affidavit SS: The Municipal Court of Cincinnati

‘John Fahnbach, being first duly cautioned and sworn, deposeth and said that one Helen Moreno having been sentenced to the Cincinnati workhouse on January 21, 1937, for 30 days being case No. 33781, and having been sentenced to the Hamilton county jail on March 3, 1937, for thirty days being case No. 42977, and having been sentenced to the Hamilton county jail on Sept. 6, 1946, being case No. 54700 for 30 days, and having been sentenced to the Cincinnati workhouse on July 7, 1947, for the 13 days being case No. 87464 on or about the 12 day of January, A. D., 1948, at and in the city of Cincinnati, county of Hamilton, and state of Ohio, shall be deemed to be an habitual offender, each previous conviction having been for a violation of a city ordinance or state misdemeanor, •contrary to and in violation of Section 4131 of the ■General Code and against the peace and dignity of the state of Ohio.

“JOHN FAHNBACH.

“Sworn to and subscribed before me and filed in "this court this 12 day of January, A. D., 1948.

“Elmer F. Hunsicker,

“Clerk of the Municipal

“Court of Cincinnati,

“By R. Underwood,

“Deputy Clerk.”

Those affidavits formed the basis for the charges resulting in the commitment of the appellants to the workhouse.

It will be noticed in each of those affidavits that ■four separate, distinct offenses are listed, resulting in four separate sentences and that each is under a separate number of the Municipal Court docket and was a •separate prosecution. It will be noted also that the •affidavit upon which commitment is predicated is under a distinct, separate number, to wit: As to Charles Lunce, No. 98139, and as to Helen Moreno, No-. 98138, and appear to constitute separate prosecutions. These numbers are found on the backs of the affidavits ad■mitted in evidence.

Section 4131, General Code, provides:

“Every person who, after having been three times convicted, sentenced and imprisoned in any workhouse or workhouses for offenses committed in this ■state, whether in violation of law or ordinance, shall be convicted of a fourth misdemeanor, whether committed in violation of an ordinance of a municipality or-law of the state, punishable by imprisonment in any workhouse within this state, shall, upon conviction for such offense be held and deemed to be an habitual offender and shall be imprisoned in a workhouse for a period of not less than one year nor more than three-years. In all such cases the court may order that the-offender stand committed to such workhouse until the-costs of prosecution are paid. The fact of former convictions shall be charged in the information or complaint and, if proved, shall be stated in the commit-ment. A pardon for a former offense granted on the-ground of innocence shall operate as a full defense-in any charge under this section of a prior conviction-for such offense.”

In State v. Stewart, 79 Ohio App., 340, 64 N. E. (2d), 252, the court had Section 4131, General Code, under-consideration, and it is evident properly construed that statute as merely providing for a heavier penalty upon conviction of the fourth misdemeanor. There is no-provision in the statute upon which can be predicated a distinct and separate offense and prosecution, to-wit, of being an “habitual offender” such as is charged in the affidavits quoted herein. On page 342' of the opinion in the Steivart case, quoting from Blackburn v. State, 50 Ohio St., 428, 36 N. E., 18, court says-as to the Habitual Criminal Act:

“ ‘The statute does not create a new offense, but attaches an additional penalty to the commission of' any felony, where the perpetrator thereof has been twice previously convicted.’ ”

The commitments, contrary to the requirements of" Section 4131, General Code, do not carry therein “the-fact of former convictions.”

In addition, it appears from the affidavit of Helen Moreno that two of the four sentences charged were to the “Hamilton county jail.” The statute refers •only to incarcerations in the “workhouse.”

In the case of Charles Lunce, one of the four sentences charged was to the “Hamilton county jail.”

Criminal statutes applicable to creation of crimes •and offenses and procedure thereunder are strictly construed. 12 Ohio Jurisprudence, 53, Criminal Law, Section 12; City of Cleveland v. Jorski, 142 Ohio St., 529, 53 N. E. (2d), 513; State v. Associates Investment Co., 136 Ohio St., 456, 26 N. E. (2d), 457, 129 A. L. R., 1074.

Confinement in a county jail is not confinement in a workhouse.

The statute in question involves — by repeated use •of the term — only confinement in workhouses.

It is contended that the improper, unlawful commitment can not be questioned in a habeas corpus proceeding. The conclusion of the Court of Appeals for Franklin county to the contrary seems to state the better rule. State, ex rel. Bailey, v. Henderson, Warden, 76 Ohio App., 547, 63 N. E. (2d), 830. One cannot be convicted or imprisoned for an offense, which is not made the subject of a statute or ordinance. There Is no such crime as being an habitual offender. The repeated confinement in the workhouse for previous ■offenses should have been stated in the fourth affidavit ■charging an offense, thus, upon proof, justifying the heavier penalty provided by Section 4131, General Code, for a fourth conviction. A charge, conviction, and commitment under such a charge is, therefore, void, and the appellants are unlawfully restrained of their liberty.

The judgment of the Common Pleas Court is reversed and a writ may issue as prayed for by each appellant.

Writs allowed.

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


author: By the Court.

text:
    Smith et al., Appellants, v. Ray, Supt. of Public Instruction, et al., Appellees.

      (No. 137
    Decided April 26, 1947.)

      Mr. Philip C. Ebéling, Mr. Taylor Cummins and Mr. R. E. Boiler, Jr., for appellants.

      Mr. Hugh S. Jenkins, attorney general, and Mr. R.

      Brooke Allow ay, for appellee Superintendent of Public Instruction.

      Mr. Harry K. Forsyth and Messrs. Knepper, White ■S Dempsey, for appellee Board of Education of Shelby •County School District.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of ¡Shelby county, denying injunctive relief to the plaintiffs, appellants herein.

This is an action in which the plaintiffs, who are ■electors and residents of the East Salem Rural School District of Shelby county, sought to enjoin Kenneth C. Ray, Superintendent of Public Instruction of the state ■of Ohio, and the members of the Board of Education of Shelby County School District, from carrying into ■effect a plan of territorial organization of the Shelby ■countv school districts. The action was begun October 17, 1944.

The Board of Education of the Shelby County School District will hereinafter be referred to as the “county board,” and the Superintendent of Public Instruction of the state of Ohio will hereinafter be referred to as the “superintendent.”

On January 15, 1944, the county board, pursuant to the provisions of Section 4831, General Code (effective September 16, 1943), adopted its plan of organization for the Shelby county schools. Before any other action was taken by the county board, on February 29, 1944, the plaintiffs herein and other electors of the East Salem Rural School District of Shelby county filed their petition with the county board, containing the signatures of more than 75 per cent of the qualified electors residing in such school district, requesting the transfer of a substantial part of such school district to the adjoining Sidney City School District, as provided by Section 4831-13, General Code (effective September 16, 1943). After the petition was filed the county board, on March 3, 1944, amended its plan of organization and transferred the territory as requested by such petition. The county board duly published the plan of organization as amended, as required by Section 4831-2, General Code. No publication was made of the original plan of organization adopted by the county board on January 15, 1944. On April 28, 1944, the county board, pursuant to the provisions of Section 4831-4, General Code (effective September 16, 1943), transmitted its plan of territorial organization, as adopted on March 3, 1944, to the superintendent. Pursuant to the provisions of Section 4831-6, General Code, the superintendent, on August 17, 1944, gave notice to the county board that he had approved the plan of territorial organization, as submitted by the county board, with certain modifications, stating in writing his reasons for such modifications. In the plan as modified by the superintendent the territory which was requested to be transferred to the Sidney City School District was eliminated, and such territory, together with the territory in the J ackson Center Village School District and in the Perry Local School District, was placed in one school district.

On August 25, 1944, objections to such modification of the plan of organization were filed with the superintendent by the Board of Education of the East Salem Sural School District, and the Board of Education of the Perry Local School District. These objections were filed under authority of Section 4831-8, General Code, which provides for a hearing on the objections. After the objections were filed the superintendent, one of his assistants, and the director of school finance in the state Department of Education, conducted an investigation of the school situation in Shelby county and held a hearing. However, a second hearing was held on October 2, 1944, pursuant to the provisions of Sections 4831-9 and 4831-10, General Code. At .this hearing all three school districts involved were represented by electors and were given an opportunity to state their views on the plan of organization.

On October 6, 1944, the superintendent, pursuant to the provisions of Section 4831-11, General Code, approved a plan of territorial organization of the school districts under the supervision of the Shelby County Board of Education. The plan, as finally approved by the superintendent, eliminated the East Salem Rural School District by transferring a part of that district to the Jackson Center Village School District, and the remaining portion thereof to the Perry School District. Thereupon the superintendent notified the county board that he had approved a plan of organization as required by the provisions of Section 4831-11, General Code, after which the county board notified the boards of education of the local school districts, in compliance with the provisions of the last paragraph in that section.

It is contended that the county board failed in one particular, to wit, to publish its original plan of organization adopted on January 15,1944, as required by Section 4831-2, General Code. The -original plan of organization was not published; however, the county board did cause to be published the plan of organization as modified and adopted by it after the petition was filed containing more than 75 per cent of the qualified electors residing in the East Salem Rural School District. Section 4831-13, General Code (effective September 16, 1943), in part, provides:

“The proposed transfer of territory shall be included in the forthcoming plan of territorial organization of the school districts to be made and adopted under the provisions of section 4831 of the General Code.'” (Emphasis ours.)

Under the express provision of Section 4831-13, General Code, it was incumbent upon the county board to include such transfer in the plan of territorial organization of the school districts to be made and adopted by the county board, as provided by Section 4831, General Code. Accordingly, the plan, as amended, became the adopted plan of the county board, under Section 4831, General Code, which was the plan of organization required to be published under the provisions of Section 4831-2, General Code.

It is urged that Section 4831-11, General Code, delegates to the superintendent legislative power and, therefore, this statute is unconstitutional. That section provides:

“Within sixty days after such hearing the superintendent of public instruction shall approve a plan of organization of the local school districts under the jurisdiction of such county board of education. Such approved plan may be the original plan as submitted by the county board of education or any modification thereof, and such plan shall be final and no territory shall be transferred except in accordance with such plan of organization.

“Upon the approval of a plan of organization of local school districts under the jurisdiction of a county board of education, upon which a hearing has been held, the superintendent of public instruction shall notify the county board of education that he has approved a plan of organization of the local school districts and such notification shall be accompanied by the plan of organization approved by the superintendent of public instruction.

“Within fifteen days after a county board of education receives such approved plan of territorial organization of local school districts under its supervision it shall notify, in writing, the boards of education of local school districts under its supervision of the decision of. the superintendent of public instruction relative to the plan of territorial organization of such local school districts. ’ ’

It is true that the Legislature cannot delegate its authority. Belden v. Union Central Life Ins. Co., 143 Ohio St., 329, 55 N. E. (2d), 629; State, ex rel. Foster, v. Evatt, 144 Ohio St., 65, 56 N. E. (2d), 265. The constitutional grant of power to the Legislature is found in Section 3 of Article VI of the Ohio Constitution, which, in part, provides:

“Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds:”

■ Under this constitutional grant of power the Legislature has enacted a school code, and has amended such code from time to time as conditions warranted. Do the provisions of Section 4831-11, General Code, transgress the constitutional grant of power? We do not think so.

In the case of State, ex rel. Maxwell, Pros. Atty., v. Schneider, 103 Ohio St., 492, 134 N. E., 443, the court had under consideration the constitutionality of former Section 4736, General Code, and on page 497 the court says:

“Section 3, Article VI of the Ohio Constitution, confers upon the legislature full power and authority over the organization, administration and control of the public school system of the state. Whether notice should or should not be given, either prior or subsequent to the action of the county board of education, is a question entirely of legislative policy, and the argument which counsel for respondents make relative thereto might well be directed to the legislative rather than to the judicial branch of the government. ’ ’

In Kneale v. Jennings, 111 Ohio St., 637, 146 N. E., 87, in discussing the question of constitutionality of former Section 4736, General Code, the court, on page 640, held:

“The power to arrange school districts necessarily must be given to some agency, and the General Assembly under Section 3, Article VI, of the Constitution, has delegated that duty to the county board of education.”

On page 645 the court stated:

“The arranging of districts is an administrative matter. ’ ’

In Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220, the court on page 282 says:

“There are a number of cases in this jurisdiction that discuss delegation of power and they emphasize the principle that, if the authority conferred is administrative, constitutional limitations are not transgressed. ’ ’

In Belden v. Union Central Life Ins. Co., supra, on page 347 the court held:

“It seems clear, both upon reason and authority, that while, the General Assembly may not delegate the exercise of its discretion as to what the law shall be, it may confer discretion in the administration of the law.”

In Ex Parte Company, 106 Ohio St., 50, 139 N. E., 204, the court, on page 57, says:

“It is claimed further in behalf of the petitioners that the legislature is without power to delegate its lawmaking authority. The distinction between power granted to legislate and power granted to administer marks the difference between the contention urged and the true question herein to be considered.”

These cases, and others cited in the opinions, hold that while the Legislature cannot delegate its power to make a law, it can make a law delegating power to a person or board to determine some fact or state of things upon which the execution and administration of the law depends.

“The true distinction is between the delegation of power to make the law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” 1 Lewis’ Sutherland on Statutory Construction (2 Ed.), 148, ■Section 88.

We are of the opinion that the superintendent, in •approving or modifying a plan of organization under the provisions of Section 4831-11, General Code, performs an administrative function. The powers conferred, being administrative, that section is constitutional.

It is further contended that the provisions of Section 4831-11, General Code, which confer on the superintendent authority to approve a plan of organization, which may be the “original plan as submitted by the •county board of education or any modification thereof,” do not confer on the superintendent authority to initiate or set up a new and entirely different plan, after a hearing has been held, as provided in Sections 4831-9 and 4831-10, General Code. The point is made that the superintendent, in announcing his approval of ■a plan of organization, entirely different from either the original plan submitted by the county board or the plan as modified by him under date of August 17, 1944, exceeded the authority conferred on him under Section 4831-11, General Code. In determining this matter we are not concerned with the plan approved by the superintendent under date of August 17, 1944.. This plan is not an issue in this case. We are required only to test the validity of the final plan approved by the superintendent under date of October 6, 1944.

Did the superintendent exceed his statutory authority? The answer is found in the provisions of the act itself. Section 4831-2, General Code, provides for a publication of the plan adopted by the county board. Section 4831-4, General Code (120 Ohio Laws, 510),. provides that on or before the first Monday in May, in the year 1944, and each biennium thereafter, the-county board shall file with the superintendent the plan of organization adopted by the county board. Section 4831-6, General Code, provides that the plan may be approved or modified by the superintendent. If he modifies the plan he shall state in writing to the-county board his reasons for such modification. Likewise, under the provisions of Section 4831-7, General Code, the county board is required to notify the local boards of such modification, including the reasons for such change, as set forth by the superintendent. Section 4831-8, General Code, provides for the filing of' objections to modifications of the plan and request for a hearing. In the case at bar objections were-filed by two local boards, and a hearing was requested. It is significant that this section provides that if no-protest is filed “such plan shall be final.” Section 4831-9, General Code, provides that if a hearing is required “on the plan of organization of local school districts as modified by the Superintendent of Public-Instruction,” the superintendent shall set a time and place and give notice to all local boards of such hearing. Section 4831-10, General Code, provides the-course of procedure to be followed at the hearing; The-•county board, each local board and any elector of the •affected districts “shall be given time to state their views on the plan of organization as modified by the Superintendent of Public Instruction.” Finally, Section 4831-11, General Code, provides what action shall be taken by the superintendent after such hearing. 'This section requires the superintendent within 60 days after the hearing to “approve a plan of organization of the local school districts,” and also expressly provides that ‘ ‘ such approved plán may be the original plan, as submitted by the county board of education ■or any modification thereof, and such plan shall be final,” etc. All these sections (Sections 4831 to 4831-14, General Code, inclusive) are in pari materia and must be construed together. We gather from these •sections a legislative intent that no plan of organization shall be adopted, approved or modified unless and •until publication has been made, or, in case of protest, a hearing has been held, and an opportunity given to the county board, local boards or electors of affected ■districts to be heard on the objections. It was the legislative intent, as we view it, that no plan of organization shall be approved and made final if objections are filed unless the boards and electors of the affected •districts have been heard thereon. The provisions of Section 4831-9, General Code, contemplate that the hearing shall be on the question as to whether the original plan submitted by the county board, or the plan as modified by the superintendent, shall be the final plan to be approved. Also Section 4831-11, General Code, contemplates that the superintendent may not approve a plan of organization unless a hearing has first been held on the plan which he approves. ■Support for this construction is found in 'the second paragraph of that section, which, in part, provides: “Upon the approval of a plan of organization of local school districts under the jurisdiction of a county board of education, upon which a hearing has been held, the superintendent of public instruction shall notify the county board of education that he has approved a plan of organization,” etc. (Emphasis ours.)

In the instant case, after the hearing, the superintendent announced his approval of a different plan than that on which a hearing had been held. The effect of the action of the superintendent was to put into-operation a plan on which a hearing had not been held, and a plan which had never been presented to-persons or parties affected. The notice given to the-boards of the local school districts affected gave no-intimation that any plan other than the one adopted by the county board, or as modified by the superintendent, would be considered at the hearing. After the hearing the superintendent, under the provisions of Section 4831-11, General Code, is given authority to do one of two things. He could approve either the original plan as submitted by the county board, or such plan as modified by him. He did neither; after the hearing he initiated and approved a new plan. To-permit this to be done would deprive the electors of a local school district affected all statutory benefits of a protest and hearing on the plan vouchsafed to them-by the; school code. In taking this action the superintendent exceeded the authority conferred on him under Section 4831-11, General Code.

Furthermore, if it be conceded that the superintendent is given discretionary power under the provisions-of Section 4831-11, General Code, to approve a modified plan, which differs from the two plans presented at the hearing, it is contended that the action taken amounted to a gross abuse of discretion. On this issue the trial court found that the superintendent was not guilty of an abuse of discretion. The rule which is •controlling in such matters is stated in 32 Ohio Jurisprudence, 930, Section 73, as follows:

“The rule is firmly established that the courts will not interfere with executive officers or boards in the performance of duties which are discretionary in their nature or involve the exercise of judgment, unless the' •action is such as to amount to fraud, bad faith, or a .gross abuse of the judicial discretion conferred upon such officer or board.” (Numerous authorities are -cited.)

Again it is stated in 21 Ohio Jurisprudence, 1279, Section 202:

“The courts will not presume wrong, illegality, collusion, or fraud upon the part of public officials, and if an act or decision, a result of an exercise of discretion, be attacked on these grounds, the facts showing the wrong complained of must be specially set out. ’ ’

In Kneale v. Jennings, supra, it was contended that the board of education proceeded arbitrarily, whimsically and unreasonably in the merging of two school •districts. On the question as to whether the school board acted arbitrarily, the court held that the presumption was otherwise. The court quotes with approval the case of State, ex rel. Maxwell, Pros. Atty., v. Schneider, supra, at page 498, as follows:

“The action of a public officer, or of a board, within the limits of the jurisdiction conferred by law, is not ■only presumed to be valid but it is also presumed to be in good faith and in the exercise of sound judgment. Before a court will take cognizance of a claim that the •action of such officer or board is unlawful, arbitrary, unreasonable, or of such character as to constitute an ■abuse of discretion, facts must be set forth which would warrant such conclusion.”

See, also, State, ex rel. Wilms, v. Blake, 144 Ohio-St., 619, 60 N. E. (2d), 308.

Did the act of the superintendent constitute a gross-abuse of discretion? It is contended that, conceding the superintendent-is given power to “modify” the-plans proposed and presented at-the hearing, the plan which he finally approved went far béyond mere modification. The plan finally approved by the superintendent was the elimination of the East Salem Rural School District by transferring a part to Jackson Center Village School District, and the remaining portion thereof to the Perry school district. Obviously the words, “any modification thereof,” as used in Section-4831-11, General Code, refer to a modification of the original plan submitted by the county board. The-original plan submitted by the county board provided for transferring the' entire East Salem Rural School District to Sidney City School District. Can it be-claimed that the plan, as finally approved, was a modification of the original plan submitted by the county board? We do not think so. In 27 Words and Phrases, 425, the word “modify” is defined to mean “to change,” “to qualify,” “to vary,” “to moderate,” “to alter,” “to limit or restrict,” “to modify the details.of a plan.” In Webster’s Unabridged Dictionary (1941 edition) the word “modify” is defined tornean “to limit,” “to reduce in extent or degree,” “to moderate,” “qualify,” “to change somewhat the form or qualities of,” “to alter somewhat.” Certainly, to “modify” means to accept in part and reject in part. This the superintendent did not do. The plan finally approved by the superintendent was a completely new and different plan and went beyond anything within the concept of the term “modification.” The power to modify does not confer the power to destroy. Linn v. Linn, 242 Ala., 688, 8 So. (2d), 187; Van Deu sen v. Ruth, 343 Mo., 1096, 125 S. W. (2d), 1. The superintendent has the authority to vary, limit, or restrict the application of the original plan submitted by the county board, but he cannot substitute a completely new plan. Such act constituted a gross abuse of discretion.

It is urged that the plan submitted by the county board was a county-wide plan, which embraced seventeen local school districts, that only three of the local school districts were affected by the modified plan finally approved by the superintendent. The point is made that since the action of the superintendent only affected three out of seventeen local school districts in the county, a change in the school system of three local districts should be regarded as a slight modification of the entire county plan. Objections were not filed and no controversy arose as to fourteen local school districts in the county plan. The issue.made did ¡affect most vitally three of the local school districts. We are of the opinion that the validity of the act of the •superintendent must be tested by the manner in which 'the plan, finally approved by him, affected the area composing the three local school districts in controversy.

We are of the opinion that prejudicial error was committed by the trial court in holding that the superintendent did not exceed his statutory power, and further in holding that the superintendent was not guilty of gross abuse of discretion. The judgment of the trial court will be reversed. A mandate may issue to the trial court with instructions to grant to the plaintiffs the injunctive relief prayed for. An entry may be drawn accordingly.

Judgment reversed.

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


author: Miller, J.

text:
    The State of Ohio, Appellee, v. Taylor, Appellant.
    (No. 4034
    Decided November 3, 1947.)

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. William G. Bryant and Mr. T. Vincent Martin, for appellee.
    Mr. Horace 8. Kerr and Messrs. Grabbe, Gar eh & Sillman, for appellant.
   Miller, J.

This is an appeal on questions of law from the Court of Common Pleas of Franklin county.

The defendant, Alfred A. Taylor, was indicted for the alleged violation- of Section 12412, General Code, it being charged that the defendant administered and injected a substance into the body of a pregnant woman with the intent to procure a miscarriage, resulting-in her death.

The case was tried to a jury which returned a verdict of guilty. The first three assignments of error, for convenience, will be epitomized and considered together as they all relate to the insufficiency of the evidence. The case is predicated entirely on circumstantial evidence and it is for that reason that such' assignments of error are being pursued. The defendant, appellant herein, is especially contending that the-state utterly failed to prove criminal intent.

We have examined the entire record in this case and are of the opinion that the evidence was sufficient to sustain the verdict. While intent to procure a miscarriage is an essential element of the crime under the statute, positive proof is not necessary, but the intent may be inferred from all the disclosed facts and circumstances. Intent is a design or purpose. It is a subjective fact. It is the secret of one’s mind, and unless he discloses his purpose by words as to why he did a particular act, the only way his purpose may be determined is from the proven facts and the logical inferences therefrom. The courts have been liberal in the admission of testimony tending to prove intent where intent is an essential part of the offense. Harrison v. State, 112 Ohio St., 429, 147 N. E., 650; 12 Ohio Jurisprudence, 312, Section 306.

Briefly stated, the facts are that on the afternoon of October 20, 1942, a Mrs. Thrall entered the office of the defendant and* several hours later she was dead, death having resulted from asphyxia due to emboli. An autopsy was performed ,and the presence of a foreign substance was found in various organs. This substance appeared to be a white, soapy-type cream and was found in the uterus, the placenta, the veins, the walls of the uterus, the veins of the uterus, the vena cava, the interior vena cava, the lungs and the brain.

The evidence disclosed that the circulation of this white, soapy cream in the blood stream caused the pulmonary embolus or clot. The examination showed that this foreign substance entered the body of the deceased by being injected into the uterus through the cervix.

The autopsy disclosed further that the deceased was pregnant, the length of pregnancy being estimated as approximately 17 or 18 weeks.

Among the many exhibits offered was a partially collapsed tube similar to a metal tooth-paste container, on which was inscribed, “Use under the direction of your physician,” and which contained a paper label with the words, “Eugenic Cream (not a jelly).” This exhibit contained white material with a cream-like consistency and a rose-water odor. The record discloses that when this material was placed in a syringe it could be readily expelled through the small opening of the syringe by pressure on the plunger; that when allowed to stand for eight hours in an open jar, it became flaky in appearance, retaining its white color. This creamy substance was identified as the foreign substance found in the body of the deceased. This “eugenic cream” was .found in the office of the defendant upon immediate investigation after the death. There were found also numerous instruments such as those ordinarily used in a physician’s office and several catheters, each of which had deposits of soapy-like material which was identified as “eugenic cream.” Upon consideration of these and all other facts and all the exhibits, we are of the opinion that the jury was justified in finding that the defendant intended to perform an abortion. All the other requirements of the statute were fully met by the proof offered by the state, and the verdict was not against the weight of the evidence.

The next assignment of error is that the trial court erred in denying counsel for defendant on their cross-examination of one Martha Bauman the right to examine or inspect the paper writing from which the witness read in the course of her direct examination. The record discloses that Martha Bauman was called as a rebuttal' witness for the state. She was a stenographer in the Columbus police department and took shorthand notes of the questions asked of the defendant and numerous other witnesses during the investigation. The witness was questioned at length as to specific questions asked of Taylor and others at police headquarters and the answers given. She stated that she had no recollection and in each instance referred to the paper writing which she had previously described as being a typewritten transcript of her stenographic notes. A particular issue was made at the trial on the’ subject of whether one Simms was questioned the same night and whether Taylor was present during the questioning of Simms. Taylor testified that Simms was not questioned in his presence to his knowledge. Bauman was in a position to rebut Taylor’s statement on this subject. She refreshed her memory from her notes and testified that Taylor was in fact present. Numerous questions asked of the defendant and answers given by him were read from this record and Bauman testified affirmatively as to their correctness. Many of these questions and answers were in direct conflict with the testimony of Taylor.

On the cross-examination of Bauman, counsel for the defendant requested permission to inspect the paper writing or transcript from which the witness had testified on direct examination. Counsel for defendant were denied this request, which denial is the foundation for the alleged error. The authority for the court’s refusal was the case of State v. Rhoads, 81 Ohio St., 397, 91 N. E., 186, 27 L. R. A. (N. S.), 558. That case holds that where a stenographic record is made by the prosecutor in a private interview with a witness who later testifies before the grand jury and on the defendant’s trial, it is error for the court to require the prosecutor to deliver the transcript of the interview to counsel for the defendant. That case holds also that a person charged with crime is not entitled ■to a transcript of the evidence taken before the grand jury. However, it must be borne in mind that the witness in the Rhoads case, supra, did not testify from the transcript of his former interview, nor did he use it to refresh his memory. The court commented on such a state of facts, as follows:

“This transcript was not evidence, and of itself could never become such under any circumstances of which we can have any present conception, certainly not independent evidence. If the witness Gannon had been using the transcript from which to testify, or to refresh and aid memory in giving testimony on the issue between the state and Rhoads, it might have been entirely proper and justifiable on the part of counsel for the accused to ash on cross-examination the opportunity to inspect the paper being referred to by the witness. [Italics ours.] In that situation, the witness may be interrogated as to the character of the paper being used or referred to, and it became a subject of examination in connection with cross-examination.”

It is not contended by counsel for the defendant that they are entitled to inspect the private files and records of interviews in the possession of the prosecutor or to examine the minutes of the grand jury meetings, but they do contend that when a witness testifies from such an instrument they have the privilege of examining it. We find this view supported as follows in 5 Jones’ Commentaries on Evidence (2 Ed.), 4705, Section 2392:

“In instances where an attempt to awaken present recollection fails, and it is sought to permit use of the memorandum by the witness in order that he may testify therefrom, upon demand of opposing counsel the memorandum must be submitted to him for inspection in order that he may adequately cross-examine. Although there do not appear to be many American decisions directly to the point, it seems to be the rule that opposing counsel have the right to examine the writing as soon as it is identified, and if the witness announces that his memory is not refreshed thereby, they have the right to cross-examine the witness. The reasons are obvious. The witness may not want to have his memory refreshed after having looked at the writing. The writing may contain cross-examinable matter. It may be required in evidence. It may contain matter relevant to some other issue. It may contain matter which should not have been brought under the notice of the witness at that stage. In brief, if there is ground for suspicion that the writing was exhibited disingenuously, the matter calls for explanation which cross-examination alone will yield. If it appears that the document contains matter which might suggest an answer to the witness, and no showing of propriety of the memorandum for such purpose or of the necessity of refreshing the memory of the witness has been made, or if for other reasons the document contains matter which should not be made known to the witness, we think that cross-examination should then and there be permitted. It may be said to be a general rule that the opposite party should be permitted to inspect whatever is put into the hands of a witness on the stand.”

Practically the same rule is stated in 28 Ruling Case Law, 596, Section 186, as follows:

“It is the well settled rule that the opposing party or counsel has the right, on proper demand, to inspect and use for purposes of cross-examination, any paper or memorandum which is used by a witness while on the stand for the purpose of refreshing his memory upon the matters as to which he is testifying, and which in fact does tend to refresh his memory. The opposing party is accorded this right in order that he may ascertain whether the paper or memorandum used has any legitimate tendency to bring the fact in controversy to the mind of the witness, and in order that he may be in a position to cross-examine as to the testimony given and thereby test the candor and integrity of the witness. But where a witness has refreshed his present recollection prior to the time of giving his testimony by the use of papers or memoranda out of court, he will not be obliged to produce them for the purpose of allowing the opposing party to make an inspection. And before the opposing counsel or party is entitled to an inspection of memoranda or papers used by a witness for the purpose of refreshing his memory, it must appear that the witness is actually using the papers for that purpose, and further that such papers do tend to refresh his memory. No attorney could claim to be entitled to an inspection of every paper which a witness might have in his custody or even in his hand while giving testimony.”

In 42 Ohio Jurisprudence, 309, Section 310, it is stated:

“It is a well-settled rule that the opposing party or counsel has the right, on proper demand, to inspect and use for purposes of cross-examination any paper or memorandum which is used by a witness while on the stand for the purpose of refreshing his memory upon the matters as to which he is testifying and which, in fact, does tend to refresh his memory. The opposing party is accorded this right in order that he may ascertain whether the paper or memorandum used has any legitimate tendency to bring the fact in controversy to the mind of the witness and in order that he may be in a position to cross-examine as to the testimony given and thereby test the candor and integrity of the witness. Hence, before it may be used to refresh the witness’ recollection, the writing itself must be produced in court, in order that the other party may, by cross-examination, share the benefit of the witness by refreshing his memory of every part. But before the opposing counsel or party is entitled to an inspection of memoranda or papers used by a witness for the purpose of refreshing his memory, it must appear that the witness is actually using them for that purpose and that they tend to refresh his memory; and if the witness used them out of court to refresh his present recollection prior to the time of giving his testimony, he will not be obliged to produce them for the purpose of allowing the opposing party to make an inspection. ’ ’

It is stated in 125 A. L. R., 192 that “a record of past recollection, used as such, must, as a general rule, not only be produced in court as a prerequisite to such use, but must on demand be produced for inspection by opposing counsel and his use in cross-examination.” The leading case on this question seems to be that of Kinsey v. State, 49 Ariz., 201, 65 P. (2d), 1141. See, also, Jewett v. United States, 15 F. (2d), 955; Taylor v. United States, 19 F. (2d), 813, and numerous other cases cited in 125 A. L. R.

Counsel for the state seem to contend that, since Martha Bauman was testifying in rebuttal, a different rule has application, but we can find no authority which supports such contention. We find that the assignment of error is well taken and that by not allowing defendant the right of inspection of the document used by the witness, he was deprived of a fair trial, for which reason the judgment must be reversed.

Another error assigned is the alleged misconduct of counsel in the closing argument. The control of counsel during the trial of a case is in some measure a matter of discretion with the trial court. • The scope of a closing argument depends somewhat upon what preceded it. We think, after giving consideration to the prior arguments in this case, the statements by counsel for the state in the closing argument were not prejudicial to the rights of this defendant. A reviewing court should not reverse on the ground of misconduct of counsel in the argument of the case unless from the whole record it is clear that the trial court abused its discretion to the prejudice of the complaining party. We find no error under this assignment.

The last error assigned is that the trial court erred in refusing to permit the defendant to show the manner of acquisition and source of numerous exhibits which the state offered in evidence and which were admitted over the defendant’s objection. The record discloses that the state offered in evidence numerous instruments found in the office of the defendant upon investigation by the police department immediately after the death. Many of these were surgical instruments which the defendant claimed he had never used and had no use for in his practice. It is claimed that such exhibits were intended to impress the jury, to appeal to their passion and to cast suspicion upon the defendant who was engaged in a limited practice as a chiropractor. The record discloses that the defense offered to show by the testimony of the proprietor of a local auction house that a sale was conducted of the office effects of a Dr. McCafferty after the latter’s death; that at the sale the defendant purchased a box lot of miscellaneous used instruments, many of which were the same exhibits as received in evidence; and that the defendant acquired these shortly before October 20, 1942. The court sustained an objection to this testimony for the reason that it was immaterial. Where the used instruments were acquired certainly could throw no light upon the manner in which they were being used on October 20, 1942, but it might have been of some value in explaining just why these instruments were in the possession of the defendant. The manner in which they were acquired might have carried some weight with the jury. We think this evidence should have been admitted although its refusal was not of such a nature as to constitute prejudicial error.

For the foregoing reasons, we find prejudicial error in the record. The judgment is reversed and cause is ordered remanded for a new trial.

Judgment reversed.

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


text:
    Gugle, Admr., Appellee, v. Gugle et al., Appellees; et al., Appellant.
    (No. 4083
    Decided February 17, 1948.)

      Mr. Richard G. Addison, -for appellee George L.. Gugle, administrator.

      Mr. Paul B. Warnick, for appellee Fred B. Gugle.

      Mr. Gottis Gundy Lane and Mr. James G. Kahle, for-appellant Anne C. Gugle.
   Wiseman, P. J.

This is an appeal on questions of" law from a judgment of the Probate Court of Franklin-county, in an action instituted by George L. Gugle, administrator of the estate of Zoa B. Gugle, deceased, for a declaratory judgment determining the rights of' interested parties in 150 shares of "stock in the Ohio Finance Company. The case was' submitted tQ the Probate Court on the pleadings, in which certain facts were admitted, stipulations of counsel and exhibits. The Probate Court found the decedent to be the owner •of the stock on the date of her death and entered judgment accordingly.

Defendant Anne C. Gugle, appellant herein, claims "the trial court erred in its findings of fact and conclusions of law and in overruling her motion for a new trial.

The facts found by the Probate Judge from the admissions in the pleadings and the stipulations of counsel, which facts are supported by the record, are as follows: Zoa B. Gugle died intestate on September 28, 1946, having in her possession at the time of her ■death a so-called strong box, in which were found two certificates, one issued by the Ohio Finance Company ■on September 24, 1942, for 50 shares of the common stock without par value, in the name of Zoa B. Gugle •and Anne Gugle as joint tenants with the right of survivorship and not as tenants in common, and an■other certificate issued by the Ohio Finance Company ■on November 12, 1943, for 100 shares of the common stock without par value in the name of Zoa B. Gugle and Anne C. Gugle as joint tenants with right of survivorship and not as tenants in common. Anne C. Gugle paid no consideration for the shares but the entire consideration was paid by Zoa B. Gugle. On the back of each one of the certificates was the signature of Anne C. Gúgle, which is at the end of a blank assignment form.

The principal question for determination is the legal effect of the signature of Anne C. Gugle on the reverse side of the certificates. The record is silent as to the reason for her indorsement. These certificates were regularly issued in conformity to the provisions of Section 8623-30, General Code, which in-part provides:

“A joint estate with the incidents of a joint estate-as at common law (including right of survivorship) may be created in shares by issuing the same to two- or more persons as joint tenants, provided that the words ‘as joint tenants’ are written after the names-of such persons on the certificate.”

The indorsement of a certificate of stock is controlled by Section 8673-20, General Code, which provides:

“A certificate is indorsed when an assignment or a power of attorney to sell, assign, or transfer the certificate or the shares represented thereby is written-on the certificate and signed by the person appearing by the certificate to be the owner of the shares represented thereby, or when the signature of such person is written without more upon the back of the certificate. In any of such cases a certificate is indorsed though it has not been delivered. ’ ’

It is contended by the defendant Anne C. Gugle that a legal indorsement was not effected under the provisions of that section since it was indorsed only by one-of the persons “appearing by the certificate to be the-owner of the shares represented thereby.”' We have-not been able to find a reported case in Ohio wherein this precise question has been determined. It is conceded that the signatures of both joint owners would be required to effect a transfer on the books of the-corporation. However, that is not the situation here presented. The issue is between two joint owners. The certificate ceased to be a certificate of joint ownership when the indorsement was made. As between the two joint owners the signature of one joint owner operates as a legal indorsement, under the provisions of Section 8673-20, General Code. To hold otherwise-would deprive one joint owner acting alone from effecting a transfer of Ms interest. An indorsement in :blank which was made in this case is permitted under that section.

The transfer of title to a certificate of stock is controlled by Section 8673-1, General Code, which in part provides:

‘ ‘ Title to a certificate and to the shares represented thereby can be transferred only, (a) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be •the owner of the shares represented thereby * * *.

“The provisions of this section shall be applicable • although the charter or articles of incorporation or code of regulations or by-laws of the corporation issuing the certificate and the certificate itself, provide that the shares represented thereby shall be transferable only on the books of the corporation or shall be registered by a registrar or transferred by a transfer agent.”

The evidence shows a compliance with the requirements of that section. The certificates were indorsed in blank and were found in a strong box in the possession of decedent at the time of her death and of which the •decedent had the sole custody and control. Delivery is conclusively shown by the indorsement and the exclusive custody and control of the certificates by the decedent. It is observed that such section required the indorsement to be made by the person “appearing by the certificate to be the owner of the shares represented thereby.” This provision calls for the same interpretation as given to a similar provision in Section 8673-20, General Code. In Bolles v. Toledo Trust Co., Exr., 132 Ohio St., 21, 4 N. E. (2d), 917, the court had under consideration the question of a gift inter vivos •of securities which were not assigned or indorsed. The court, in discussing the effect of the Uniform-Stock Transfer Act, on page 28 held:

“An examination of a number of authorities, with-due regard for their reasoning, is persuasive that a transfer of certificates of corporate stock on the books of the corporation is not requisite to a valid completed' gift of such certificates as between the donor and' donee, and further that the provisions of the Uniform-Stock Transfer Act (Sections 8673-1 to 8673-23, General Code), to the effect that title to certificates shall pass by endorsement as of the time of the registration of the transfer, do not alter the rule, because such provisions were inserted for the protection of the corporation alone, so that it might safely deal in the payment of dividends, or otherwise, with the person in whose-name the stock was registered.”

In adopting the reasoning of the court in the Bolles case, supra, we are constrained to hold that in the-case at bar, the indorsement and delivery having been effected according to the legal statutory requirements as between the two joint owners, the indorsement of' Anne C. Gugle operated as a transfer of her interest to Zoa B. Gugie. The issue raised is determined by a finding that the decedent on her death was the sole owner of the certificates of stock. In our opinion this-finding is supported by the evidence and the law applicable thereto.

The defendant Anne C. Gugle contends that before-the court can find the ownership of the stock to be in the decedent it must first find by clear and convincing-evidence that Anne C. Gugle made a gift inter vivosto the decedent Zoa B. Gugle, and cites the Bolles case,, supra. However, in that case, as already pointed out,, the question raised related to an attempt to make a gift inter vivos of securities without an assignmentr or indorsement. A different situation is presented in-the instant case. We fail to find in the pleadings or the evidence an issue raised relative to the question of a gift.

. Finding no error in the record the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Conn, J.

text:
    Bellows, Appellee, v. Bowlus, Appellant.

      (No. 4293
    Decided March 15, 1948.)

      Mr. Harold J. Kehoe, for appellee.

      Mr. W. T. Reecl, for appellant.
   Conn, J.

This is an appeal by defendant on questions of law from a judgment of the Court of Common Pleas in an action on a promissory note, with warrant of attorney attached, authorizing any attorney at law to enter appearance of defendant, waive the issuance of service of process and confess judgment.

The note was executed on August 3,1922, in the principal sum of $2,250 due in one year after date, with interest at 6fo per annum. The action was begun on July 10, 1947, and judgment was entered on the same day. On July 31 following, the defendant filed his petition in the same action, alleging that judgment was entered for more than was due; “that the statute of limitation had run on said note on 3rd day of August, 1937”; that at the time the judgment was taken there was a valid defense to the action; and that defendant is entitled to have the judgment vacated and set aside. Summons on defendant’s petition was-issued to plaintiff.

To that petition, plaintiff filed an answer containing a general denial and affirmative defenses. The defendant filed a general demurrer to the answer of plaintiff, which demurrer was overruled. Thereafter,, defendant filed a reply denying the affirmative allegations in plaintiff’s answer.

The case went to trial on the petition of defendant,, the answer of plaintiff and the reply. At its conclusion, the trial court dismissed the petition of defendant to vacate and set aside the judgment, and entered a judgment in favor of plaintiff for costs.

Errors assigned by defendant are substantially as ■follows: That the court erred in rendering judgment for plaintiff on the cognovit note when it appeared on 'the face of the instrument that the action thereon was 'barred by the statute of limitations; in overruling defendant’s demurrer to the answer of plaintiff to defendant’s petition; in its separate findings of fact and law; and in dismissing defendant’s petition.

An interesting question of procedure is presented by the record. The application to vacate was made during the term the judgment was rendered, but the procedure adopted by defendant for that purpose is found in Sections 11631 to 11637, inclusive, General •Code, providing for the vacation and modification of .judgments after term.

It is well settled, however, that the provisions of the ■Code relating to the vacation of judgments after term ■do not abrogate or abridge the power of a court of .■general jurisdiction in the exercise of control over its .judgments entered within the term. In other words, a court of general jurisdiction is not limited to the •grounds enumerated in Section 11631, General Code, in the exercise of its control over judgments entered during term. 23 Ohio Jurisprudence, 1152, Section 1022; Huntington & McIntyre v. Finch & Co., 3 Ohio St., 445; First National Bank of Dunkirk v. Smith, 102 Ohio St., 120, 130 N. E., 502; Moherman v. Nickels, 140 Ohio St., 450, 45 N. E. (2d), 405, 143 A. L. R., 1174; Canal Winchester Bank v. Exline, 61 Ohio App., 253, 22 N. E. (2d), 528.

The procedure to open, vacate or modify a judgment ■during term is less formal and may be made by mo-lion or upon the court’s own motion in the exercise of ‘its inherent power. Kornick v. Hahn, Admx., 11 Ohio App., 388; Rabb, Admr., v. Board of Commrs., 36 Ohio App., 481, 173 N. E., 255.

The fact that the defendant followed the procedure for vacating judgments after term, by filing a duly verified petition setting forth the judgment and grounds for its vacation and upon which summons was issued and served on plaintiff, invited no procedural departure. The parties being constructively in court during the entire term, the filing of a petition and the issuance of summons were each unnecessary and irregular, even though the grounds relied on for vacating the judgment were identical with one or more of those specified in Section 11631, General Code. Furthermore, the issues raised by the petition were in all respects like the issues that would have been raised if defendant had filed a motion and thus brought to the attention of the court his grounds for the vacation of the judgment.

It may be further noted that a proceeding under Section 11631 et seq., General Code, is a special proceeding in the original action after judgment and not in and of itself an independent civil action. 23 Ohio Jurisprudence, 1154, Section 1023; Taylor v. Fitch, 12 Ohio St., 169.

Notwithstanding this well settled procedure, the plaintiff filed an answer to defendant’s petition for the vacation of the judgment and the trial court heard the case on the merits and without a jury, as if the issues had been raised on the original petition and an answer thereto.

The answer of plaintiff, so-called, raised no issues of fact or law. This answer and the pleadings it inspired might well have been stricken from the files. In other words, under the settled practice in this state, when proceeding either by petition or by motion to va■cate a judgment during term, the trial court, upon preliminary hearing, should determine whether the alleged grounds to vacate or modify exist and also if thev are sufficient in law to constitute a valid defense. When defendant has made a prima facie showing that he has a defense, he should thereupon tender his answer setting up such defense or obtain leave to file same. Frazier v. Williams, 24 Ohio St., 625; Watson v. Paine, 25 Ohio St., 340; Lee v. Benedict, 82 Ohio St., 302, 92 N. E., 492; Bulkley v. Greene, 98 Ohio St., 55, 120 N. E., 216; Minetti v. Einhorn, 36 Ohio App., 310, 173 N. E., 243; Canton Implement Co. v. Rauh, 37 Ohio App., 544, 175 N. E., 230.

It appears upon the face of the petition of plaintiff that this action was not “brought within fifteen years after the cause thereof accrued” (Section 11221, General Code). The petition also discloses that no payments were made on the note. The defendant testified on the preliminary hearing that he resided in Idaho, Ohio; that he had never made a payment or acknowledged in writing any obligation on the note; and that he claims the defense of the statute of limitations. (Section 11223, General Code.)

The defendant having made a prima facie showing that he had a valid defense to plaintiff’s action, the judgment should have been suspended and the defendant given leave to file an answer. On the issues thus raised, the parties were entitled to a jury trial. The premature disposition of the issues of fact upon which the defense to the note was predicated was erroneous and prejudicial to the defendant.

It appears that the foregoing considerations in effect dispose of all the assignments of error.

Finding that the procedure in the trial court and the judgment entered there were erroneous and prejudicial to the rights of the defendant, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Carpenter and Fess, JJ., concur.


text:
    Bemis, Appellant, v. Bemis, Exrx., Appellee.
    (No. 4247
    Decided February 2, 1948.)

      Messrs. Taylor, Cruey & Kelb, for appellant.

      Messrs. Welles, Kelsey, Fuller, Cobourn & Harrington, for appellee.
   Conn, J.

The Common Pleas Court entered judgment in this case for defendant on her motion for judgment on the pleadings. Plaintiff appealed on questions of law. The pleadings consist of the petition, amended answer and reply. It is alleged in the motion “that upon the statements in the pleadings herein, defendant is entitled by law to a judgment in her favor. ’ ’

A motion for judgment on the pleadings is analogous to a general demurrer. The issue raised is one of law and goes to the substance of the pleadings. Under the situation present in this case, it becomes expedient to examine the pleadings with a degree of liberality in favor of plaintiff and at the same time indulge every reasonable inference that may arise in his favor as to their sufficiency.

It is alleged in the petition that William R. Bemis, in his lifetime, was the owner of a lumber business consisting of buildings, sheds, equipment, merchandise and certain real estate; that prior to April 1, 1934, plaintiff was the owner of a valuable trucking business in Toledo from the earnings of which he supported his family; that on or about such date plaintiff entered into a contract not in writing with William R. Bemis, by the terms of which William R. Bemis agreed to pay plaintiff one-half the profits of the lumber business during the lifetime of William R. Bemis, and to give, devise and bequeath by last will and testament the lumber business, in consideration of plaintiff devoting his full time to the lumber business and relinquishing the trucking business in which he was then engaged.

It is further alleged that pursuant to such agreement, plaintiff did devote all his time to the lumber business for more than 11% years and continued to do so until after the death of William R. Bemis and has fully performed the contract; that plaintiff received certain profits from the business from time to time, but that the amount received was less than half of the profits thereof and that his services over such period had a reasonable value of more than $35,000.

It is alleged also that William R. Bemis failed to give, devise and bequeath the lumber business to plaintiff by last will and testament, but on October 16, 1942, by his will, devised and bequeathed the lumber business, one-half to plaintiff and one-half to Katherine Bemis, his widow, and that there is due plaintiff the sum of $20,000 for which he prays judgment.

Defendant, in her amended answer, admits, among' other things, that William R. Bemis in his lifetime was-the owner of the lumber business referred to in plaintiff’s petition and that the property and business were devised and bequeathed as alleged by plaintiff; that plaintiff is a son of William R. Bemis; that plaintiff performed somé services for his father at the lumber yard, for which he was paid the sum of $7,202.68; and that neither she as executrix nor the estate of William. R. Bemis is indebted to plaintiff in any sum whatsoever. The amended answer of defendant contains also» a general denial.

In plaintiff’s reply to the amended answer of defendant, it is alleged that he had reached his majority in the year 1917 and was fully emancipated by his father; that he had not lived with his father as a member of his father’s household or family since about the year 1929; that, excepting the payments made to him from the lumber business, his father had contributed nothing toward plaintiff’s support or the support of his family since that date; and that at the time of making the agreement and many years prior thereto and at all times thereafter, plaintiff maintained his own home independent of the home of his father.

The foregoing recital of the material allegations of the pleadings discloses that issues of fact are raised thereon. It follows that defendant’s motion for judgment should have been overruled, unless upon the issuable facts plaintiff was not entitled to recover as a matter of law.

It is contended by the defendant that “the relationship of father and son is in and of itself so close that no further factors need be present to establish a family relationship,” and that “it is immaterial whether they reside in the same household or not or whether the services were of a personal or domestic nature. The allegation of an unenforcible oral contract to will property does not fulfill the requirement of an express contract, inasmuch as the action must be upon an enforeible express contract.”

Opposed to this view is the claim of plaintiff that the family-relationship doctrine has no application to this case for the reason that the son maintained a home for his family separate from and independent of his father’s home, and that since he does not rely on an implied contract, the family-relationship doctrine is no bar.

It is clear that the agreement relied on by plaintiff, not having been in writing, is within the statute of frauds and that no action can be maintained thereon either for specific performance or for damages. However, the statute, being procedural in its application, does not render a contract void or illegal, but its true construction is to render the kind of evidence required indispensable when it is sought to enforce it. 2 Willis-ton on Contracts, 1517, Section 527; 19 Ohio Jurisprudence, 655, Section 144.

The well known case of Hinkle et al., Exrs., v. Sage, 67 Ohio St., 256, 65 N. E., 999, has received much consideration by both plaintiff and defendant. As pointed out in the opinion, that case turned upon the charge of the Common Pleas Court to the jury. That part of the charge pertinent here is as follows:

“The plaintiff cannot recover in this cause unless you find from the evidence that there was an express contract between her and the decedent providing that she should be paid for her services.”

The jury returned a verdict for the defendant and judgment was entered. On error to the Circuit Court, that judgment was reversed.

In the Sage case, it clearly appeared that the services rendered by claimant, Mrs. Corwin Sage, whose husband was the son of George R. Sage, the decedent, were personal services as housekeeper and nurse, and that those services were performed while claimant and her husband lived with George R. Sage as members of his household. We quote from the opinion of the court on page 262:

“ * * * and that from 1890 the family consisted of deT cedent and his wife, the plaintiff and her husband. So that, without regard to the finding of the jury, the family relationship of the' plaintiff and the decedent, and the dependency of her and her husband is incontrovertible. Under such circumstances, where compensation for services is claimed from the head of the family, or his estate, the law does not imply a promise and no recovery can be had unless an express contract is shown.”

The law of that case is stated in the syllabus as follows :

“1. In an action to recover compensation for services, when it appears that the plaintiff was a member of the family of the person for whom the services were rendered, no obligation to pay for the services will be implied; and the plaintiff cannot recover in such case unless it be established that there was an express contract upon the one side to perform the services for compensation, and upon the other side to accept the services and pay for them.

“2. Such contract may be in writing or it may rest entirely in parol, and it may be proved by direct or indirect evidence; but to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof.” See, also, Thompson v. Jones, 13 C. C. (N. S.), 493, 23 C. D., 182; 42 Ohio Jurisprudence, 497, Section 14.

The family-relationship doctrine announced in Hinkle v. Sage, with some deviation, has been followed in an unbroken line of decisions by the courts of this state, except as to the quantum of proof. (Merrick v. Ditzler, 91 Ohio St., 256, 110 N. E., 493.) This doctrine, however, is limited in its application to those cases wherein it is disclosed that the claimant is “a member of the family of the person for whom the services were rendered,” that is, where claimant and the person against whom the claim is made are members of the same household. It follows that where the parties do not live together as one household with reciprocal rights and duties, or where the claimant relies on an express contract, all of which appears on the face of the pleadings in the instant case, the rule in Hinkle v. Sage does not circumscribe the right of recovery. 42 Ohio Jurisprudence, 499, Section 17.

It may be observed further that the “opportunity for fraud” and the “temptation to perjury,” to which defendant calls attention, are not augmented by the factual situation disclosed in the pleadings, for the reason that plaintiff relies on an express contract, and, upon the issues arising, his evidence must be clear and convincing. In other words, plaintiff’s right of recovery under the pleadings is not limited by the fact that the alleged contract was entered into with his father. He stands before the law in this respect equal with a stranger and with rights undiminished by the fact of his relationship. Pelzer v. Woolley, Admr., 16 Ohio App., 328; Struble, Admr., v. Struble, 42 Ohio App., 353, 182 N. E., 48; Sokolowski v. Lucey, 47 N. E. (2d), 627; Thompson v. Jones, supra.

Having alleged an express contract, but one not en-forcible under the statute of frauds, is plaintiff entitled to recover on quantum meruit the fair and rea■sonable value of his services'? Under the authorities it appears that the answer to this inquiry must be in the affirmative. In the instant case, it is alleged that plaintiff has fully performed his undertaking. From facts and circumstances of this character, a quasi-contract arises and the law implies a promise to pay the fair and reasonable value of the services rendered. 'This rule of law has wide recognition and has been applied in numerous instances where there has been a breach of an oral contract to leave property by will as compensation for services rendered by permitting a recovery of the fair and reasonable value thereof. Towsley v. Moore, 30 Ohio St., 184, 27 Am. Rep., 434; Hummel v. Hummel, 133 Ohio St., 520, 14 N. E. (2d), 923; 41 Ohio Jurisprudence, 272, Section 15; 12 American Jurisprudence, 502, Section 6; 17 Corpus Juris ■'Secundum, 322, Section 6.

It is our opinion that plaintiff has pleaded a cause ■of action, and that the judgment of the trial court should be reversed and the cause remanded for further proceedings.

Judgment reversed and cause remanded.

Carpenter and Fess, JJ., concur.