text:
    AS TO THE RIGHT OF AN ACCUSED PERSON TO A PUBLIC TRIAL.
    Court of Appeals for Summit County.
    Frank Colletti v. State.

    Decided, May 23, 1919.

      Criminal Law — Waiver by Defendant of Right to Accompany Jury to View the Premises — Dying Declarations — Exclusion of Public from Trial Because of Existence of Epidemic — Not Necessary to Find Defendant Guilty Beyond “All” Reasonable Doubt.

    1. The defendant in a criminal case has the right to accompany the jury upon a view of the premises, but this privilege may be waived or declined by the defendant, and he must then be deemed to have voluntarily absented himself. The court of common pleas having granted him the privilege of accompanying the jury is not bound to compel him to accept.
    2. It is the better practice for the trial court to interrogate the witness in the absence of the jury, as to alleged dying declarations, and determine their admissibility; but where such dying declarations are admissible and shown to be such, it is not error to admit such evidence in the presence of the jury without first ascertaining its admissibility.
    3. The accused is entitled to a public trial. This requirement is for his benefit that the puhlic may see that he is fairly dealt with and not unjustly condemned; but where at the time of the trial a general epidemic prevails, under the police power the trial court upon its own motion may exclude the general public from the trial when the public health and welfare justify such exclusion and such exclusion does not operate unreasonably beyond the occasion of its enactment.
    4. It is not error for the trial court to refuse to charge that the defendant must be found guilty beyond all reasonable doubt. This is requiring the state to produce a higher degree of proof than necessary .for a conviction, and the state is required only to prove the accused guilty beyond a reasonable doubt. .

      Anderson, Ormsby & Kennedy and Muser, Kimber d? Huffman, for plaintiff in error.

      C. O. Roetzel, Pros. Atty., for defendant in error.

      Motion to require the Court of Appeals to certify its record' in this case overruled by the Supreme Court, Novemiber 25 1919.

   Patterson, J.

Heard on error.

The plaintiff in error, Frank Colletti, ,the defendant below, was indicted by the grand jury of Summit county for murder in the first degree, the indictment containing three counts, the first charging in 'brief that on the 10th day of August, 1918, the accused shot the decedent, Frank Abruzzi, on the left side of the abdomen, which wound caused his death. The second and third counts of the indictment charged the accused with shooting said Frank Abruzzi and inflicting two mortal wounds upon his back.

The proof shows that the shooting took place about nine o’clock in the evening, near the corner of Howard and Lods streets in the city of Akron, and that the decedent after the shooting was taken to the hospital and died there that night.

The jury found the defendant guilty of murder in the first degree, with a recommendation of mercy.

A motion for a new trial was duly filed, which was overruled by the trial court, and a petition in error was filed in this court to reverse the judgment of the court below.

Many errors occurring in the trial are assigned by counsel for plaintiff in error, of which the principal ones are the four following:

1. That the defendant below was not present when' the jury viewed the premises.

2. That the alleged dying declarations of the decedent were not submitted, in proper form, and were not admissible.

. 3: ’That the defendant did not have a public trial.

A. Errors in the'charge of the court to.the jury.

With regard to the first error complained of, the record at page 2 shows that before' the statements of the prosecutor and the defendant were, made the prosecutor requested that the jury view the premises. • Thereupon the court inquired whether counsel for defendant “would prefer that, too,” and the reply was, “We have no objection. We join in the request.” The trial, court proceeded to admonish the jury as to their duties and conduct during this view of the premises, and then inquired of counsel for the accused, “Do you want to take the defendant down, too?” To this Mr. Kiraber, of counsel for the defense, replied, “No we waive that right to take the defendant down. ’ ’

It is now contended on the part of the accused that neither he nor his counsel could waive the right of being present while the jury viewed the premises; that a view of the premises is a part of the trial and the accused must necessarily be present; and that his constitutional rights have therefore been violated, •as well as his rights under Sec. 13676, G. C., in that this part of the trial was conducted without his presence.

Had the accused requested to be present upon a view of the premises, and the court refused this request, it would have been clearly error to have conducted this view against his objection. This is discussed in Hotelling v. State (3 C. C., 630; 2 Circ. Dec., 366), the third proposition of the syllabus of which is as follows:

“Where an order made by the court on motion of, the prosecuting attorney, under See. 7283, R. S., that the jury view the premises where the alleged crime was committed, in charge of the sheriff and a person appointed by the court to point out the premises, it is error to permit such view in the absence of the accused and against his objection.”

And at page 369 (634) et seq. in the opinion of the above case the court say:

“The counsel for the state then moved the court for an order that the jury view the premises where it was claimed the murder had ben committed; the prisoner objected, the objection was overruled, and he excepted. The court made the order that the jury be conducted to the place in a body, in charge of the sheriff and a person appointed by the court, to point out the premises; and gave instructions tha,t no other persons should be permitted to speak to the jury upon any matter connected with the trial, while thus absent from the court room. The view was had, and the jury returned. This objection and exception is assigned for error. Section 7283 (R. S.), provides that whenever in the opinion of the court it is proper for the jurors to have a view of the place at which any material fact occurred, it may order them to be conducted in a body, under the charge of the sheriff, to the place which shall be shown to them by some person appointed by the court. And while the jurors are thus absent, no person other than the sheriff having them in charge, and the person appointed to show them the place, shall speak to them on any subject connected with the trial. Counsel for the prisoner contends that this section of the statutes is in violation of Art. 1, Sec. 10, of the Constitution, which provides that ‘in any trial in any court, the party accused shall be allowed to appear and defend in person and with counsel; tó demand the nature and cause of the accusation against him; to have a copy thereof,' and to meet the witnesses face to face.’
“We do not think it necessary to pass upon the question whether this statute is in violation of the Constitution, unless its operation would necessarily preclude the accused from being present during the view of the premises. This it does not do. There is nothing to prevent him from being present, if permitted by the court, unless he would voluntarily waive such right. It is not his constitutional right to be present during the trial, but Sec. 7301 (R. S.), of the statute provides among other things ‘that he shall not be tried unless personally present.’ If the view of the premises was a part of the trial, it is certain he should have been present when the view was had.”

In the above case it will be noted that the accused was not allowed the privilege of being present during the view of the premises by the jury, and that he duly excepted to his deprivation of this privilege. The record in this case shows no desire upon the part of the accused to be present at this view of the premises; he expressly waives his right to be present, and no exception is filed thereto. This would bring him under the rule laid down in Blythe v. State, 47 Ohio St., 234, in which case the entire opinion per curiam is as follows:

“A view of the place where the homicide occurred is expressly authorized by Section 7283, R. S., which makes no provision for the defendant on trial to accompany the jury when it is made. Section 7301, R. S., prescribes that, except in cases of misdemeanors, no one charged with an offense shall be tried in his absence.
“This section does not require the actual presence of the accused in court at all times during his trial, but prescribes'that one out of the jurisdiction or control of the court can not be tried for a felony, and notwithstanding this section (7301, R. S.), one on trial for a felony and not in actual custody may pass in and out of the courtroom, and remain absent for considerable periods of time, without rendering the progress of the trial during his absence erroneous. Therefore, if a view such as is authorized by Sec. 7283, R. S., be a part of the trial within the meaning of Sec. 7301, R. S., yet, as the court of common pleas expressly granted to plaintiff in error, permission to accompany the jury when the view was taken, which privilege, under advice of counsel he declined to accept, he must be deemed to have voluntarily absented himself, and thereby waived his right and privilege to be present when the view was taken. The court of common pleas, having granted him the privilege to accompany the jury, was not bound to compel him to accept it.”

It is clearly the established law in Ohio that the accused has the right to be present at such view of the premises, and it is error to deprive him of the right to be there if he so desires. On the other hand, it is equally clear that he may refuse to accompany the jury, that he may waive the right to be present. In either event, refusal to be present or a waiver of his right to be present, there is no error.

The entire testimony with reference to the question of the dying declarations of the decedent will be found upon pages 12 and 13 of the record, and the record in full upon this question is as follows:

“Q. Where did you see your husband? A. At the hospital.
“Q. And did he say anything to you at the hospital? A. Yes, sir.
“Q. What did he say to you?
“Mr. Kimber: I object.
“Mr. Laybourne: What did he say to you at the hospital?
“Mr. Kimber: I object to the question.
“The Court: You claim this is a dying declaration?
“Mr. Laybourne: Yes.
“Mr. Spencer: We will qualify this as a dying declaration.
“The Court: Will you show he believed he was in a dying condition ?
“Mr. Spencer: Yes, that he realized he was dying and died a moment afterwards.
“Mr. Kimber: I still say it is objectionable. That must be shown first in this kind of a case.
“Mr. Spencer: It’s all in this conversation, as to what he said about dying.
“The Court: You may answer and we will see whether it is competent or not.
“Defendant excepts.
“A. I said to him: ‘Bernardino, who wounded you? Who hurt you?’ He said: ‘Frank Colletti.’
“Defendant asks to have answer excluded. Answer allowed to stand. Defendant excepts.
“Mr. Laybourne: Q. What else did he say? A. He said: ‘When I got near him he shot me without any talk or anything.’ Defendant objects to the answer and asks that it be excluded. Answer allowed to stand. Defendant excepts. ‘He told me to send him to the electric chair.’' Defendant asks to have the answer excluded. Answer allowed to stand. Defendant excepts. ‘He sent for me at my house to assassinate me. Good-bye. I am dying.’
“Mr. Kimber: I ask to exclude this last part of the answer.
“The Court: It may stand. Defendant excepts.
“Mr. Kimber: And I ask to have all of the answer excluded now.
“The Court: No, I think the last answer qualifies the rest of it now. Defendant excepts.”

In his twelfth ground in the motion for a new trial the accused eomplains of “errors of law and abuse of discretion in the admission of evidence as to a so-called dying declaration.” In 1 Ruling Case Law, at page 527, dying declarations are defined as follows:

“In its broadest meaning a dying declaration is a statement made by a person under the fixed belief and moral conviction that his death is impending and certain to follow almost immediately. However, in the sense in which it is now used in law, a dying declaration is a statement made by a victim of a homicide while in articulo mortis and without hope of recovery,' concerning the facts and circumstances under which the fatal injury was inflicted, where the statement is offered in evidence on the trial of the person charged with having caused the death of the declarant.”

Dying declarations may be proven by any competent witness, and may be proven by the declarant’s wife if she is a competent witness. The statements of the decedent should be limited to the res gestae. 1 Ruling Case Law, page 534:

“When it is remembered that by the admission in evidence of dying declarations the defendant is deprived of being 'brought face to face with the witness and of the benefits of cross-examination, and. the declarant’s statements are admitted without reference to the form of the questions to which they are responsive, which, in many instances, are leading as well as misleading to one in a weakened and dying condition, the protection of the liberties of the innocent, as well as in many cases the conviction of the guilty, demands that statements admitted under such circumstances be limited to the res gestae, and that the deceased be permitted to speak only of the transactions causing the death, with such accompanying statements and conduct as may throw light upon it. Dying declarations are, however, always admissible for the purpose of identifying the person who committed the crime.”

Each and all of the answers and questions with reference to the alleged dying declarations are excepted to upon the part of the accused and great stress in the argument of counsel is laid upon the answer, “He told me to send him to the electric chair.” That this was not properly a dying declaration, 'but showed- rather a spirit of revenge.' But it would seem that another view might be taken of this answer, .because if the injured man were not dying, and did not feel that he was then in extremis, the accused could not be sent to the electric chair, because there would be no murder. Objection is also made to the answer, “When I got near him he shot me without any talk or anything.” And it is claimed that this is not a part of the res gestae.

Declarations that are merely .matters of opinion are not incompetent. In the ease of Wroe v. State, 20 Ohio St., 460, the third proposition of the syllabus is as follows:

“In making a dying declaration, the defendant, in speaking of the fatal wound, said it was done without any provocation on his part. Hela, that this declaration was not incompetent as being mere matter of opinion. ’ ’

Objection is also made to the form in which the alleged dying declarations were received. It being claimed that the court should have examined the widow without the presence of the jury, to see whether these declarations were admissible as dying declarations, and, if the court so found, that then the jury should be recalled and the evidence given to them; and, if not found to be competent by the court, that the jury, in that event, should not hear any of the purported evidence upon this line. Counsel for the state, however, claim that these were dying declarations, that the trial court found that they were, and that if the court so found there could be no error in their admission in the manner in which they were introduced. The last words, “Good-bye. I am dying,” would certainly show that the decedent himself thought that he was in extremis, and if he so thought, and in fact was in a dying condition, and shortly thereafter did die, the alleged dying declarations were admissible and properly submitted to the jury for their consideration along with the rest of the evidence in the case.

It is further contended on the part of the pláintiff in error that he was deprived of the right of a public trial as guaranteed him by the Constitution, and page 231 of the record shows that the following proceedings were had with reference to the conduct of the trial:

“The Court: This morning the court made an order that no person should be permitted in the court room excepting the witness on the witness stand, the members of the bar, the officers of the court and the defendant and attorneys in the case, and the jurors and the newspaper men, on account of the health conditions that prevail. The court had no conference with counsel before it made that order and has just taken it up with counsel, and counsel on both sides agree that is the order that should go on, and with their consent the court will enforce that order rigidly.
“Mr. Kimber: I would say in that connection, your Honor, the only man we would like is an interpreter, this gentleman that has been here.
“The Court: You may permit him to remain.”

It will be observed that on account of health conditions the trial court made this order without consulting either the state or the defense, and that some little time after making the order the court took the matter up with counsel, and the record shows that counsel on both sides agreed that the above order should go on and that with their consent the court should enforce the order. Thereupon counsel for the plaintiff in error requested that the interpreter be allowed to remain, which accordingly was done.

It is contended on the part of the plaintiff in error that neither he nor his • counsel could waive the constitutional right to a public trial, and in support of this contention counsel cite the Constitution of Ohio, Art. 1, Sec. 10; the Federal Constitution, the 6th and 14th Amendments; also Davis v. United, States, 247 Fed., 394; and, further, the case of State v. Hensley, 75 Ohio St., 255 (79 N. E., 462; 9 L. R. A. (N. S.), 277; 116 Am. St., 734; 9 Ann. Cas., 108).

In the case last cited the proceedings had are set forth as follows, at page 261:

“After the examination of the first witness, on the reassembling of court after the noon adjournment, the first day of the trial, the court announced that in view of the testimony expected to be given by the next witness he would continue the trial during the taking of the testimony of witnesses likely to give immoral or obscene testimony in the small court room, the probate court room, and directed the sheriff to admit no one to said room except the jury, defendant’s counsel, members of the bar, newspaper men, and Grimes, defendant’s witness. The order was made in open court in the presence and hearing of defendant and his counsel. No objection was made other than the statement by one of the defendant’s counsel that the defense knew of no testimony that would be improper to be heard in a public trial. Thereupon the trial was transferred to the small room, and the judge, the jury, defendant, his counsel, a number of the bar and newspaper men, and the witness Grimes, went to the small room, where the court was opened and by order of the court the general public was excluded during the taking of the testimony by the state in chief, and in reply or rebuttal, save as to one witness, a physician.”

At page 263, in the same opinion, the court quote from Cooley’s Constitutional Limitations (6 Ed.), 379:

“It is also requisite .that the trial be public. By this is not meant that every person who sees ht shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.”

The court further discuss the question of a public trial, at pages 265 and 266:

“It is not intended here to indicate that the trial judge is without power to exclude from the court room during the trial of a criminal case individuals, though adults, who are, by reason of habits or physical condition, personally obnoxious, or persons who by their conduct interrupt the orderly course of business, or the power to clear the room of general spectators who, as in Grimmett v. State, 22 Texas App., 36 (2 S. W., 631), were so boisterous and insubordinate as to intimidate witnesses, and where it was impossible to distinguish those who participated from thoe who did not; nor is it doubted that persons whose attendance is for the express and only purpose of using the information thus obtained in a way calculated to directly obstruct the administration of justice may be excluded. Perhaps, too, the character known as the ‘court room loafer,’ whose attendance would be induced only by prurient curiosity, might be excluded without harm to the defendant, or prejudice to the state, although the matter of determining with certainty just who should, and who should not, be included in this category in the given instance, might not always be easy of solution. Much should be, and we think is, necessarily and properly left to the trial judge, who is obliged to insist upon the orderly conduct of the public business, and whose highest duty is the securing to the parties, the defendant as well as the state, a fair and impartial trial; but the people have the right to know what is being done in their courts, and free observation and the utmost freedom of discussion of the proceedings of public tribunals that is consistent with truth and decency tends to the public welfare. We agree with the holding of the circuit court in the case'at bar that the order of exclusion was too general in character and its limitations of admission too restrictive, and that the defendant was not accorded such a public trial as is guaranteed by the Constitution.
“It is, however, insisted by counsel for the state that because no specific objection or exception was entered by the defendant at the time the order was made or was being enforced, the error, if any was committed, can not now be taken advantage of. This objection ignores the force and effect of the constitutional provision. The right to a public trial is guaranteed. It is of the same' high order of right as the other guarantees embodied in the section: that to appear and defend in person and with counsel; that to meet the witnesses face to face and have compulsory process, and that to a trial by jury. The right can not be waived by silence any more than can the right to be tried by jury where thei accusation is a felony and the plea is not guilty.”

It will be observed that in the above ease the defendant did not agree to the adjournment of the court to a small room and the exclusion of the general public, but simply remained silent, unless the statement of counsel that he knew of no such testimony should be considered as an objection.

In the case at bar the trial court, upon his own motion, recognized the fact that there was prevalent in the country and in the city an epidemic of Spanish influenza, and any power that the trial court should have to exclude the general public from the trial or to prevent the assemblage of a large number of people on account of the then prevailing epidemic would arise by virtue of the police power. In 6 Ruling Case Law, at page 183, the nature of police power is defined as follows:

“Nature of Police Power. The police power is an attribute of sovereignty, possessed by every sovereign state, and is a necessary attribute of every civilized government. It is inherent in the states of the American Union and is not a grant derived from or under any written constitution. It has been said that the very existence of government depends on it, as well as the security of social order, the life and health of the citizen, and the enjoyment of private and social life and the beneficial use of property. It has been described as the most essential, at times the most insistent, and always one of the least limitable of the powers of government.
“Difficulty of Definition. While there have been many attempts to define the police power, it has not yet received a full and complete definition. The difficulty has been frequently commented on, and it has been said that the police power is from its nature incapable of any exact definition or limitation, because none can forsee the ever-changing conditions which may call for its exercise. The boundary line which divides the police power of the state from the other functions of government, is often difficult to discern, and the limitations of the power’ have never been drawn with exactness. It has been said repeatedly that it is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise.”

On page 189 in the same work police power is further discussed as follows:

“Plasticity of Police Power. The police power of the state, never having been exactly defined or circumscribed by fixed limits, is considered as being capable of development and modification within certain limits, so that the powers of governmental control may be adequate to meet changing social, economic, and political conditions. It is very broad and comprehensive, and is liberally understood and applied. The changing conditions of society may make it imperative for the state to exercise additional powers, and the welfare of society may demand that the state should assume such powers.”

On page 193 there is the following on the subject:

"Where appellate courts are called on to determine the validity of police regulations they frequently incline towards acquiescing in the opinion of local tribunals and bodies, because the latter are familiar with local conditions and are in a better position to judge of the necessity of such enactments. Considerable latitude is sometimes allowed for possible peculiar conditions as to which the appellate court may have but little knowledge.”

And also on page 195 as follows:

“Constitutional Bights as Limiting Police Power. A police regulation, obviously intended as such, and not operating unreasonably 'beyond the occasions of its enactment, is not rendered invalid by the fact that it may affect incidentally the exercise of some right guaranteed by the Constitution.”

The police power has been referred to in a great many Ohio decisions and we will refer to only a few of them.

In Phillips v. State, 77 Ohio St., 214, at page 216, the court say:

"It is almost an axiom that anything which is reasonable and necessary to secure the peace, safety, morals and best interests of the commonwealth may be done under the police power; and this implies that private rights exist subject to the public welfare.”

In Mirick v. Gims, 79 Ohio St., 174, at page 178, the court say:

"The police power is an attribute of sovereignty and has its origin, purpose and scope in the general welfare, or as it is often expressed, the public safety, public health and public morals. These terms indicate its field, yet its boundaries are necessarily vague and indefinable.”

The question is further discussed in the case of State v. Boone, 84 Ohio St., 346, at page 351:

"The police power is inherent in sovereignty; and its exercise is justified by the necessity of the occasion. Its foundation is the right and duty of the government to provide for the common welfare of the governed. If is tersely expressed in the maxim, ‘8alms populi suprema lex.’ ”

And in the case of Toledo Disposal Co. v. State, 89 Ohio St., 230, the first proposition of the syllabus is:

“In the exercise of the police power, the state and municipal authorities may make all such provisions as are reasonable, necessary and appropriate for the protection of the public health and comfort, and when any such provision has a real and substantial relation to that object and does not interfere with the enjoyment of private rights beyond the necessities of the situation, every intendment is to be made in favor of its lawfulness.”

It is recognized that the accused is entitled to a public trial, and that the trial of criminals and their punishment has a two-fold effect not only to punish the one convicted, but that his trial and punishment may deter others from committing similar offenses, so that the accused and the public, in a sense, are interested in a public trial.

In the ease at bar the trial court familiar with local conditions took the view under the prevalence of an epidemic that the public health and welfare, not only of the spectators themselves, but of the court, officers and jury as well, required that there be no assemblage of the people at that time in the court room. We are all familiar with the fact that at and about this time schools and churches were closed, the right of public assemblage was prohibited to the people and these were all necessary police regulations designed to stamp out the further extension of the then existing epidemic. In this respect the ease at bar differs from the authorities cited. No authority has been cited to us raising the question of the right of the court to exclude the general public from the court room in case of an epidemic such as existed at or about the time of this trial. And we are inclined to the view that the court acting for the general public welfare exercised his privilege, and that it was his duty for the promotion of public health and welfare to proceed with the trial as he did. And it is evident from the record that the counsel for the accused recognized that these conditions existed and consented to the further exclusion of the public from the trial, and that there was no error prejudicial to the plaintiff in error in thus excluding them.

It is insisted by counsel in their brief and also in oral argument that the words “beyond all reasonable doubt” should have been used in the charge of the court instead of the words “beyond a reasonable doubt.” No authority is cited to us showing wherein the word all has ever been used in this connection, and an examination of the reported cases in Ohio discloses the fact that the words “a reasonable'doubt” are used in the following cases: Clark v. State, 12 Ohio 483; Farrar v. State, 2 Ohio St., 54; Adams v. State, 31 Ohio St., 462; Morehead v. State, 34 Ohio St., 212; Morgan v. State, 48 Ohio St., 371; McGuire v. State, 3 C. C., 371; 2 Circ. Dec., 318; Breck v. State, 4 C. C., 160; 2 Circ. Dec., 477; Ditzler v. State, 4 C. C., 551; 2 Circ. Dec., 702; Altschul v. State, 8 C. C., 214; 4 Circ. Dec., 402 Neifield v. State, 3 C. C. (N. S.), 551; Lindsey v. State, 69 Ohio St., 215; State v. Schiller, 70 Ohio St., 1; Hutchinson v. State, 8 C. C. (N. S.), 313; Ryan v. State, 10 C. C. (N. S.), 497; and Wray v. State, 5 C. C. (N. S.), 437.

The term “beyond a reasonable doubt” is also used in Sec. 12399, G. C., being the section which defines murder in the first degree.

In the light of these authorities had the word “all” been used before “reasonable doubt,” we think it would have been error in the charge of which the state would have had just right to complain, and that there was no error in the charge as given with reference to the degree of proof required in a criminal case, namely, beyond a reasonable doubt.

Further complaint is made that the court erred in not charging the jury with reference to the alleged dying declarations admitted in evidence in the case. The record does not show any special request for such a charge by the counsel for plaintiff in error, and it was admitted in the argument that no special request as to this evidence was made to the court. In regard to this contention we think the rule is well established that counsel for the plaintiff in error can not complain of the omission of the court to charge in this respect when no request for the same was made at the time of the trial. The rule is aptly stated in the case of State v. Schiller, supra, where at page 8 the court say:

“No request was made by defendant, or Ms counsel, for any further or additional charge on this subject, and no objection was made or exception taken to this particular portion Of the charge as given, the only exception taken or noted by counsel for defendant, being a general exception to the charge as a whole. It is a familiar and very general rule of practice, applicable alike to criminal and civil cases, that mere partial non-direction, or incomplete instruction, as to a particular matter or issue, does not of itself constitute reversible error, in the absence of a request for more specific and comprehensive instructions upon the particular point or issue involved.”

We have examined the entire charge of the court and think that in his charge the court stated the law correctly and that there were no errors in it prejudicial to the rights of the plaintiff in error.

This disposes of the principal contentions made on .behalf of the plaintiff in error. Many other errors are assigned, but we have examined the entire record and find no errors therein prejudicial to the rights of the plaintiff in error, and the judgment of the court of common pleas is therefore affirmed,

Washburn and Vickery, JJ., concur.


source: Caselaw Access Project

author: Shohl, P. J.

license: Public Domain

text:
    LIFE TENANT TAKES AS A REVERSIONER.
    Court of Appeals for Fayette County.
    (Shohl, P. X, Hamilton and Cushing, X X, of First District, sitting by designation in the places of Allread, P. X, Ferneding and Kunkle, JX, of the Second District.
    Herschel D. Chaffin v. Tryphena Dixon et al.

    Decided, March, 1920.

      Wills — Seisin in Deed as Distingtiished from, Seisin in Law — Boot or Stock from which an Inheritance, by Bight of Blood is Derived— Son of Testator, Made a Life Tenant under the Will. Takes an Interest in the same Property as a Beversioner.

    The testator devised certain real property to his son F for life and then over to the heirs of his body forever, With no residuary clause or other disposition of the demised property. The son survived the testator and died testate without issue.

      Held: The testator died intestate as to the reversion, and the son F became vested immediately with his undivided share of the reversion, and title thereto was transmitted by his will.

      Sidy &• Sanderson and Post <S¡ Reid, for plaintiff in error.

      Gregg, Patton & Gregg, for defendants in error.

      Motion to require the Court of Appeals to certify its record in this • case overruled by the Supreme Court, May 17, 1920.

   Shohl, P. J.

Solomon Chaffin, the father of the parties, died in March, 1914, leaving á will whereby he devised the premises in controversy in the following language:

Item 1. “I give .and devise to my son Franklin A. Chaffin, during his natural life, and then to the heirs of his body forever, the following described real estate, situate in the county of Fayette, state of Ohio. * *

The will contained no residuary clause and made no disposition of the premises except the foregoing.

Solomon Chaffin left surviving him four children, one of whom was Franklin. Franklin A. Chaffin was childless at the death of his father and remained so until his death in May, 1919, leaving no heirs of his body and leaving a will which was duly probated in the probate court of Fayette county, whereby he devised to his brother, Herschel D. Chaffin, any and all interest that he had or was entitled to in the property in controversy. Thereafter, Tryphena Dixon brought an action in the court of common pleas of Fayette county, praying that the premises in question be partitioned, and for such proceedings as are authorized by law, claiming to own a one-third part of the premises, as heir at law of Solomon Chaffin, deceased. Herschel D. Chaffin by answer and cross-petition set up the facts hereinbefore recited. Plaintiff demurred to the answer and cross-petition. The court sustained the demurrer and ordered partition finding that Tryphena Dixon, Herschel D. Chaffin and Loten W. Chaffin, each have a legal right to the undivided one-third part of the real estate. Error is prosecuted to the judgment by Herschel D. Chaffin.

The controversy is as to the legal effect of the will of Solomon Chaffin. The defendants in error claim that each of the three children of Solomon Chaffin surviving Franklin is entitled to one-third of the premises. The plaintiff in error contends that he is entitled to one-half of the premises, one-fourth as heir of Solomon Chaffin and one-fourth as devisee of Franklin A. Chaffin, who inherited one-fourth as one of the heirs at law of Solomon Chaffin.

The following propositions are not disputed:

First. All the parties derive their title either mediately or immediately by descent from Solomon Chaffin and not by devise under his will.

Second. That under the will of Solomon Chaffin, Franklin A. Chaffin, by virtue of General Code, Section 1067?, took a life estate with remainder over in fee to the heirs of his body, and that upon the death of Franklin A. Chaffin, without heirs of his body, the remainder failed for want of any one qualified to take it.

Third. That Solomon. Chaffin died intestate as to the reversion in the property in the event of Franklin A. Chaffin’s death without heirs of his body.

At the death of Solomon Chaffin, he left four children surviving him. Had he made no disposition whatever of his estate in the land, except to give a life estate therein to Franklin, an intestacy as to the reversion would have been immediately apparent, and each of the four children would then have had a vested interest in one-fourth of the reversion. The statute, General Code, Section 8573, provides:

"When a person dies intestate, having title or right to any real estate or inheritance in this state * * * such estate shall descend and pass in parcenary to his or her kindred in the following course; 1st, to the children of such intestate or their legal representatives * *

What is the effect, therefore, of the further gift to the heirs of the body of Franklin A. Chaffin? General Code, 'Section 10758 abrogates the rule in Shelley’s case as to wills.

Upon principle and authority there is. a contingent remainder to the heirs of the body of Franklin. 1 Tiffany on Real Property, .Section 120, page 283. The descent was east upon the death of Solomon Chaffin. A reversion in fee, therefore, upon the death of Solomon passed to and vested in his heirs at law, subject to 'being divested upon the birth of children of the life tenant. Gilpin v. Williams, 25 O. S., 283, 295, 296; In re Youtsey, 260 Fed., 423; Fearne on Remainders, 351; Jeffers v. Lampson, 10 O. S., 101; Garver v. Jackson, 4 Peters, 1, 89, 90; Doe v. Considine, 6 Wall., 458, 477.

Franklin A. Chaffin, therefore, as one of the heirs of his father, was vested with a one-fourth interest in the premises by descent, just as were his brothers and sisters. The fact that Solomon Chaffin by will limited, the estate of Franklin to an estate for life does not exclude him from any further interest which might come by reason of an intestacy. Even had the testator made an express provision to that effect, he could not exclude one of his heirs at law from .participation in property which he had not disposed of. Crane v. Doty, 1 O. S., 279, 283; Needles, Executor, v. Needles et al, 7 O. S., 432, 445; Bane v. Wick, 14 O. S., 505, 508; Gilpin v. Williams, 17 O. S., 396; Leopold, Exec., v. Weaver, 9 App., 379.

Reference was made in the argument to the common law rule summed up in the maxim seisina facit stipitem or “seisin makes the stock of descent.” The rule is thus stated in 24 A. & E. Ency. of Law, 1st Ed., 357:

“The effect of the common law rule that descent must be traced from the first purchaser, together with its auxiliary doctrine expressed in the maxim seisina facit stipitem is, then, that the claimant must show kinship to the person who last died seized in deed. Though the law passes an inheritance upon the heir immediately upon the ancestor’s death, he thereby only-acquired a seisin in law, and this alone would not enable him to transmit the inheritance to his heirs; for at common law, no one could be a stirps from whom a descent could be derived, unless he had been actually seized. * * * He could not ’be counted an ancestor who had only a bare right or- title to enter, or be otherwise seized * * It may, then, be stated as the clear result of all the authorities that, whenever a person succeeds to an inheritance by descent, he must have obtained an actual seizin or possession, or seizin in deed, as contradistinguished from seizin in law, in order to make himself the root or stock from which the future inheritance by right of blood must have been derived; that is, in other words, in order to make the estate transmissible to his heirs. If, therefore, the heir on whom the inheritance has been cast by descent-, dies before he has acquired the requisite seizin, his ancestor, and not himself, becomes the person last seized of the inheritance, and to whom the claimants must make themselves heirs.”

Under this rule, the heirs of the reversioner can not have seisin until the determination of the particular estate, and if one of those heirs had died during the existence of the particular estate, he would not have died seized and could not be the stock or stirps through whom descent could be derived; but the same authority says:

“But this common law doctrine is now changed by statute in England and is generally rejected throughout the United States, where ownership or title to property is substituted for seisin, and the heir takes all the real estate owned by the ancestor at the time of his death. So, the heirs of a reversioner or remainderman take as absolutely as if their ancestor were actually seised as of a free hold in possession; the word “seised,” when applied to such an interest, becomes equivalent to owning and “seisin” to ownership. A remainderman or reversioner, therefore becomes a proper stock of descent, and the remainder or reversion of one dying intestate will go among his heirs in the same manner as an estate in possession.” 24 A. & E. Ency., page 358, 359.

As has already been noted under General Code, .Section 8573, the heir inherits from an ancestor “having title or right to any real estate,” and without regard to seisin. See Gibson v. McNeely, 11 O. S., 131; 3 Washburn on Real Property, 6th Ed. Section 1847 ; 2 Tiffiany on Real Property,, page 983.

It is insisted, however, that the claim of plaintiff in error is in conflict with the decisions in the cases of Bunnell v. Evans, 26 O. S., 409, and Cultice v. Mills, 97 O. S., 112. Each of those eases contain language not in harmony with the view herein-before expressed. The actual decision in the case of Bunnell v. Evans as shown by the syllabus is that where a gift is made to a' son of the testator for his natural life and then to his heirs, and in another part of the will the word “heirs” is used in the sense of “children” that the son took a life estate only with remainder to his 'children, or issue, and not to his heirs generally, that upon his death without issue the devise in remainder failed, and the estate reverted to the heirs of the testator. While Welch, C. J., in the course of the opinion stated those persons whom he considered the heirs of the testator, the proposition was not actually decided.

In the case of Cultice v. Mills, the facts were practically the same as in the case of Bunnell v. Evans. The controversy turned upon the meaning of the term “heirs” as used in the will. The wife of the life tenant, John Mills, claimed to be the owner of the real estate in fee simple under the will of Thomas Mills as the “heir” of John. The briefs and records in the Supreme Court, to which we have had access, show that the claim made in this ease was not presented to the court there. The widow of John never made the contention that she was entitled to John’s share which he got by reason of the partial intestacy of his father. The Supreme Court never having passed upon the precise point, the decision ought not to be regarded as changing the rule established by decisions which are the settled law of Ohio.

We are of opinion, therefore, that upon the death of Solomon Chaffin he was intestate as to a reversion. The right of Franklin A. Chaffin to an undivided fourth in this reversion vested immediately subject to being divested by the happening of the contingencies provided for in the will, and Franklin was able to and did transmit his interest to his brother Herschel D. Chaffin. See Gillis v. Long, 10 O. D., 253, 269, 270. Herschel D. Chaffin under the facts admitted ’by the demurrer was the owner of a one-half interest in the land.

The judgment will be reversed.

Hamilton and Cushing, JJ., concur.


author: Allread, J.

text:
    BINDING NATURE OF A JUDGMENT IN AN ACTION BY A MINOR.
    Court of Appeals for Cuyahoga County.
    Judges of the Second Appellate District sitting by designation in place of the Judges of the Eighth District.
    Isabel L. Cunningham v. The Cleveland Consolidated Bottling Works Company.
    Decided, March 17, 1920.

      Infant — Judgment in an Action dy — May Be Impeached for Fraud, or Unfairness Only — Irregularities not Appearing on Face of the Record not Ground for Vacation — Injuries Prove More Serious than was Supposed at Time Judgment was Taken.

    1. A judgment in an action by a minor by next friend is valid and binding upon the minor, unless vacated for errors appearing on the record or impeached for fraud or unfairness in obtaining the judgment.
    2. C, a minor by next friend, brought 'suit and recovered judgment for $500 for personal injuries. The judgment was paid. The minor after arriving at full age brought suit to vacate and open up the former judgment for certain alleged irregularities not appearing upon the face of the record. No fraud or unfairness in obtaining the judgment is charged: held, no cause of action.
    3. Evidence showing that since the trial and judgment the injuries to the minor have developed more seriously than was or could have been anticipated at the time of said trial and judgment does not sustain a claim of newly discovered evidence nor form the basis for an equitable impeachment of the judgment.
    4. The averment that the former judgment was rendered by consent and without evidence of the nature and extent of the injuries is not of itself sufficient to require the vacation and opening up of the judgment, where the record shows affirmatively' that evidence was offered and where no fraud or unfairness in the rendition of the judgment is shown.

      A. B. Oakes, for plaintiff in error.

      Bernstein & Bernstein, contra.
   Allread, J.

The judgment sought to be reviewed was rendered in an action or proceeding to vacate or modify a former judgment. The petition for modification of the former judgment contains a full recital of the record in said former ease. From this record it appears that Isabel L. Cunningham, by her next friend, brought suit against the Cleveland Consolidated Bottling Works Company in the court of common pleas and on December 12th, 1906, recovered a judgment for the sum of $500 and costs. The judgment entry shows that the parties waived a jury and submitted the ease upon the pleadings and evidence. The plaintiff complains of the former judgment upon the grounds

(1) That the court erred in rendering said judgment for only $500 as that amount is grossly inadequate.

(2) That the court erred in that it heard no evidence in the ease other than the pleadings.

(3) That the court erred in determining the ease without knowledge of the extent of plaintiff’s injuries; and

(4) That the court erred in rendering judgment in favor of plaintiff for only $500 for the reason that the injuries are more serious than they appeared to be at the time said judgment was rendered and the damages could not have been reasonably anticipated, and were not anticipated or taken into consideration by said court in fixing the amount of said judgment, and the said injuries have since proven to be more serious and permanent than was anticipated; also that the plaintiff- is now in possession of newly discovered evidence to show that her injuries were much more serious than were or could have been anticipated by her physician at the time.

Plaintiff relies upon Section 11631, G-. 0., which provides:

‘ ‘ The common pleas court or the court of appeals may vacate or modify its own judgment after the term at which it was made * * -* (5) for erroneous proceedings against an infant, * * * when the condition of-such defendant does not appear in the record nor the error in the proceedings * * * (8) for errors in the judgment sought by an infant within twelve months after arriving at full age as prescribed in Section 11603.”

Section 11603, provides:-

“It shall not be necessary to reserve in the judgment or order, the right of a minor to show cause against it after attaining the age of majority; but in any case in which, but for this section, such reservation would have been proper, within one year after his majority a minor may show cause against such judgment or order.”

Section 11603 is found substantially in the same form in Section 386 of the Practice Code adopted March 11, 1853.

In Long v. Mulford, 17 O. S., 485, it was held that the remedy of an infant to open up or vacate a judgment against him in infancy was either by bill of review to review the record or by bill in equity to impeach the judgment.

In the case of Carey v. Kemper, 45 O. S., 93, it is held that the remedy of the infant under the 6th paragraph of Section 5354, R. S. (now 11631, G-. C.), was by a proceeding in the nature of a bill of review. It is further'held in that case, as in the case of Long v. Mulford, that the infant was not confined to that remedy but might resort in a proper case to a bill in equity to impeach the judgment. In the case of Roberts v. Roberts, 61 O. S., 96, a petition was filed in the court of common pleas of Crawford county to set aside a judgment of the probate court rendered during minority. The Supreme Court held that petition to be under the statute for a review of the regularity of the judgment, and not a bill in equity. We do not feel that we are called upon to determine whether the petition under consideration in the present case is one to review the regularity of the proceedings against the minor in the first ease or a bill in equity to impeach the judgment.

We have considered the averments of the petition under both forms of procedure with the view of determining whether the facts are sufficient under either form of remedy.

The Supreme Court was at first uncertain as to the scope of inquiry under a bill of review. In some instances the pleadings including the depositions were considered, but it was finally held in the case of Helman v. Riddle, 8 O. S., 384, that:

“On bill of review in such case the court can only examine such matters as appear upon the record; the testimony before the jury in regard to the validity of the will, being oral and forming no part of the files or record, can not be reviewed.”

It is true that Section 11603, G-. C., was adopted subsequent to the decision in Holman v. Riddle, but the provisions of Section 11603, were held in the case of Carey v. Kemper, supra, to be a statutory substitute for the prior practice in courts of equity requiring such reservation to be entered in the decree.

Paragraph 5, Section 11631, G-. C., provides for vacation or modification of a judgment against an infant where the fact of infancy does not appear in the record. In proceedings under this paragraph the fact of infancy may be shown upon the record.

The theory of the law is that whére the disability does not appear in the pleadings, the infant does not have the protection which the law requires and the special consideration which the court is accustomed to give in such cases.

Where the disability appears in the pleadings and the infant is represented as provided by statute, there is a presumption in favor of the regularity of the judgment.

It is claimed in the petition in the present case that there was no evidence offered. The- record of the former case shows, however, that evidence was offered and considered by the court in the rendition of the judgment. We are bound by the recitals of this judgment so far as the petition in the present action may be considered as a bill of review. Rankin v. Kemp, 21 O. S., 651. See Paulin v. Sparrow, 91 O. S., 279. The case of Sawitske v. Peters Machine & Manufacturing Co., 29 O. C. A., 515, involved fraud and unfairness by the defendant in procuring the judgment against the minor.

Upon full consideration we are of opinion that so far as the petition in this case may be regarded as a bill of review or proceedings in error, it is not sufficient as there is no error appearing upon the face of the record.

We now come to the second phase, to-wit, is the petition sufficient as a bill in equity to impeach the judgment?

There is no showing of fraud, collusion or unfairness in the proceedings leading up to the original judgment. In fast the petition negatives this idea because it avers that the present-situation as to the plaintiff’s injuries could not have been anticipated at the time of the original proceedings. There is no showing of collusion such as appeared in the case of Long v. Mulford. The next friend of plaintiff, who represented her in the original proceedings, is not claimed to have had any adverse interest or was otherwise disqualified to act in the capacity of next friend. We can not subscribe to the view expressed by counsel for plaintiff in error that the infant upon arriving at age had the rights of an adult who files a motion for a new trial within the statutory period. We think the infant is bound to show some equitable ground for the vacation of the original judgment. It will be noticed that Section 11603 does not preserve to the infant the right to file a motion for a new trial. The reservation is to show cause against the judgment.

In the ease of Johnson v. Pomeroy, 31 O. S., 247, a judgment had been rendered against an insane person without the intervention of a trustee or guardian and in favor of one having knowledge of the insanity. It was held that such judgment was not void and ‘ ‘ can not be impeached by the guardian of the judgment debtor without showing some fraud or unfairness on the part of the creditor in obtaining the judgment.” In the absence of such a showing we think the petition in this ease is not good as a bill in equity.

There is an averment in the petition of what is styled newly discovered evidence.. Taking all of the averments of the petition we do not consider that the petition contains a sufficient statement of newly discovered evidence to justify the infant in opening up the judgment upon that ground. The sum and substance of the claim in this particular is that there have been developments of the injuries not anticipated at the time of the proceedings and judgment. Almost every case involving personal injury has an element of uncertainty as to the future. The ’court or jury trying the case consider the testimony upon this subject and determine the possibilities. If the fact as to injury turns out to be less or more than the jury estimates, such facts could hardly be relied upon in later years to overthrow the judgment. If the courts were to so hold it would give a great advantage to the infant. If the verdict and judgment were greater than the actual damages the infant copld stand on the judgment and the other party would have no remedy, whereas if the verdict and judgment were less than the amount of damages as determined from the future then the infant would not be bound by the judgment but could open it up and recover the greater damages. This, we think, would be unfair to the opposite party and give the infant an advantage not contemplated by the law. Upon full consideration we are of opinion that the petition did not state a cause of action and that the judgment dismissing the petition was not erroneous.

Judgment affirmed.

Ferneding and Kunkle, JJ., concur.


author: Ferneding, J.

text:
    AUTOMOBILE STRUCK BY TRACTION CAR AT A PRIVATE ROAD CROSSING.
    Court of Appeals for Pickaway County.
    Allread, Ferneding and Kunlde, JJ., of the Second District sitting in the Fourth District by designation.
    Rohr, Administrator, v. Scioto Valley Traction Co.
    Decided, March 17, 1920.

      Negligence — Alterations Made after Accident not an Admission of Responsibility — -No Implied Invitation to a Grade Grossing over . a Private Road — Contributory Negligence of a Guest — Contributory Negligence Raised as an Inference though not Pleaded.

    1. Alterations or repairs to equipment, machinery and the like, made after an accident as a precaution against future accidents, are not admissible in evidence as an admission of responsibility for the past or that defendant had been negligent before the accident, or had knowledge of any defects.
    2. In an action for negligence growing out of a grade-crossing accident, it is proper for the court to refuse to charge the jury that there exists a license or implied invitation for the public to use a crossing constructed and maintained by the traction company, where the road and crossing are private.
    3. A passenger riding as guest of the driver of an automobile is required to exercise ordinary care for his own safety,. therefore the court may properly refuse to give a special charge which ignores the question of contributory negligence on the .part of such passenger.
    4. Contributory negligence may arise as an inference from plaintiff’s own evidence and be recognized as an issue in the case although not pleaded by defendant.

      Barton Walters, for plaintiff in error.

      Oscar W. Newman and Charles Oerhardt, for defendant in error.
   Ferneding, J.

Heard on error.

Tbe administrator of Gertrude Perrill brought this action originally to recover damages for wrongful death.

Decedent, it appears, was riding in the rear seat of an automobile owned by Kate Decker and driven by Harold Decker. The automobile contained the driver, Harold Decker, his father, Clifford Decker, both of whom occupied the front seat, and Kate Decker and the decedent, occupying the rear seat. The party were driving north from Circleville on the Columbus pike and" turned to the east into what defendant claims to be a private road, but which plaintiff denies is a private road. This road crosses the tracks of the Scioto Valley Traction Company, and it was at this crossing the automobile was struck by a traction ear of the defendant company running at a high rate of speed. The two women in the automobile were killed, one instantly, and the other died a short time thereafter as a result of the accident; Harold Decker, the driver, was severely injured, but recovered, and his father, Clifford Decker, although thrown a considerable distance by the collision, was practically uninjured. The case was tried to a jury, resulting in a verdict and judgment in favor of defendant. The assignments of error upon which counsel for plaintiff in error chiefly rely are:

1. Errors in ruling upon the admission and rejection of evidence.

2. Errors in refusing to limit the application of said evidence.

3. Errors in refusing to give certain charges requested by plaintiff before argument.

4. Weight of the evidence.

The plaintiff objected to the exclusion of certain evidence which related to the alleged changed conditions due to the relocation of certain poles. The witness, Charles Bell, was asked:

“Q. Now, Mr. Bell, what if anything, did you notice at that time and place with reference to any telephone poles or telegraph poles extending along the highway of the Scioto Valley Traction Company in a northerly direction?
“A. Well, there was a string of poles out there; they had been changed since 1916.
“Q. What changes has been made in those poles since July, 1916?”

To have permitted him to answer would have been a violation of a well-known rule of evidence and incompetent. The ■court admitted the evidence so far as it related to the location of the poles at the time the accident occurred. This was the material question involved.

Subsequent alterations or repairs to equipment, machinery and the like, taken in precaution, to safeguard the future against accidents, are not to be accepted or construed as an admission of responsibility for the past; nor taken to mean that the defendant had been negligent before the accident happened, or had knowledge of such defects, if any existed.

To admit such testimony would tend to distract the, mind of the jury from the real issue and create a prejudice against the defendant. It might also serve as a check upon remedying defects and discourage future improvements and betterments. Bacon v. Noble, 20 C. C., 281 (11 Circ. Dec., 49); Columbia & Puget Sotmd Ry. v. Hawthorne, 144 U. S., 202, and 29 Cyc., 616.

In the case at bar the record discloses it was not proposed to prove that such change in the relocation of poles was actually made by the defendant company, but by a telephone company Avhich had poles constructed near by.'

It is also contended that the trial court erred in admitting the testimony of Rev. E. A. Cush, Dr. Dunton and Vernon R. Stout, as to the declarations of Clifford Decker made shortly after the accident. We think a proper foundation was laid in the cross examination of Clifford Decker to' warrant the admission of such testimony. The trial court was asked to instruct the jury that the testimony of Rev. Cush, Dr. Dunton and Mr. Stout should be limited to reflect upon the credibility of the witness, Clifford Decker. The trial court, we think, did not err in refusing to so limit such testimony. Had the court erred in not limiting such testimony at the time of its admission, it was the duty of counsel for plaintiff in error to have presented the matter to the trial court either in a request for a special charge before argument, or at the time of the general charge, in order to lay the foundation for error. This was not done.

The court gave special charge No. 1 requested by plaintiff before argument as to the duties of the defendant in approaching the Fairview crossing. This charge sufficiently covered that question and the other special charges on that subject were properly rejected. Limbaugh v. Western Ohio Ry., 94 Ohio St., 12 (113 N. E., 687).

Special charge No. 2 was as follows:

“An invitation to the public is implied to come upon the premises of the traction company, at proper places to do business with it, and a license or even an invitation may be implied where the company constructs, maintains and permits the use of a crossing not originally public under such circumstances that all persons who desire to use it may do so in-the well-founded belief that it is a public crossing.” •

The court properly refused this charge, as the evidence disclosed that the roadway and crossing were not public, but private.

Counsel for plaintiff in error particularly complained of the refusal of the court to give special charges Nos. 6 and 7, which were as follows:

“Even though you should find that there was some act of negligence upon the part of the driver of the automobile. I charge you that Gertrude Perrill can not be held responsible for such nor can it be imputed to her if you further find that said automobile was the property of Kate Decker and that Gertrude Perrill at the time of the accident was simply riding in the same as the invited guest of Kate Decker.”
“Notwithstanding the fact that you may find that the death of Gertrude Perrill resulted from the negligence of the traction company combined or concurring with negligence on the part of the driver of the automobile in which she was riding, the plaintiff would, nevertheless, be entitled to your verdict, if you find that the automobile was the property of Kate Decker and that Gertrude Perrill at the time of the accident was simply riding in the same as an invited guest.”

We think both of these charges ignore the question of contributory negligence. In the case of Toledo Railways & Light Co. v. Mayers, 93 Ohio St, 304 (112 N. E., 1014), syllabus 2, it was held: i

“Though plaintiff was required to exercise ordinary care for his own safety and to reasonably use his faculties of sight and hearing to observe and avoid the dangers incident to crossing such tract, an instruction that he 'was not exonerated from any duty at all by reason of the fact that he himself was not driving the machine,’ is erroneous.”

The contributory negligence .of the deceased, it is claimed, was not made an issue by the pleadings. The failure of the defendant to plead contributory negligence is not conclusive. If contributory negligence arises as an inference from the plaintiff’s own evidence it must be recognized as an issue in the case. In Rayland Coal Co. v. McFadden, 90 Ohio St., 183 (107 N. E., 330), it is held:

“In such case, the issue of contributory negligence is not made by the pleadings, but is raised by the evidence properly offered by the parties in support of their respective claims as made in the pleadings. The issue of contributory negligence thus raised is to be determined by the same rules as to burden of proof and otherwise as if made by the pleadings.”

We think such an inference may arise from the plaintiff’s evidence and the court would not be justified in giving a charge which would ignore that inference. No prejudicial error is found in the general charge. The issues were fully stated and explained by the trial court and the instructions given covered the essential features of the case.

The evidence has been earef/nlly -/considered and, without analyzing the same in detail we are of the opinion that the verdict and judgment are sustained by sufficient evidence.

Finding no prejudicial error, the judgment is affirmed.

Allread and Kunkle, JJ., concur.


author: Shohd, P. J.

text:
    ACCELERATION OF THE BOUNTY PROPOSED BY A TESTATOR.
    Court of Appeals for Hamilton County.
    Franklin Alter and George T. Alter v. Robert S. Alter et al.
    Decided, June 28, 1920.

      Wills — Vested Interests — Policy of the Law as to Time of Vesting — Bequest in the Form of a Direction to Pay — Acceleration of Bequest— Where Warranted by Unforeseen Exigencies and the Evident Intention of the 'Testator — Discretion of Trustees, Authorised to Hold, Manage and Reinvest — Authority of Trustees as to Reinvest ment not Lost by Delay, When.

    1. A vested interest is one in which there is a present fixed right either of present enjoyment or future enjoyment.
    2. The law favors the vesting of estates, and unless a condition precedent to vesting is clearly expressed, courts incline to that construction which treats interests given under the will as vested in the donee at the death of the testator.
    3. A bequest in the form of a directon to pay or to pay and divide at a future period .vests immediately, if the payment he postponed for the convenience of the estate, or to let in some other 'interest.
    4. Where a testator gives an absolute and vested bequest, hut provides for a postponement of the enjoyment thereof, and when an exigency, non-existent at the creation of the trust, arises, which is one not then anticipated by the testator, a court of equity may substitute another course of management of the trust fund in order to bring about a more complete realization of the purposed bounty. It may order an acceleration of the enjoyment of income or principal of the trust which neither expressly nor impliedly authorizes such a course to be taken. It -is not the mere convenience or 'even the benefit of the beneficiaries which will move the court to hasten enjoyment of trust funds, but the necessity of varying the terms of the trust in order to give effect to the ultimate intention of its creator.
    5. Where trustees under a will are authorized “to hold, manage, control and from time to time, as need be, re-invest,” so long as the ■trustee acts in good faith, he is not subject to the control of the beneficiaries, nor of the courts in the reasonable exercise of the discretionary power conferred upon him.

      6. A power given to trustees under a will to sell certain stocks three years after the death of testator is not lost by delay on the part of the trustees to exercise it pending an action to determine the existence and extent of such powers.

      WilUs M. Kemper, for George S'. Alter.

      Rufus B. Smith, for Franklin Alter.

      Pogue, Moffheimer <& Pogue, for Robert S. Alter and Lueien W. W. S. Alter.

      J ames E. Robinson, for Blanche Alter, Elizabeth T. Alter and Rebekah Alter.

      W. S. Little and J. L. Kohl, for Walter B. Hofer et al, Trustees.
   Shohd, P. J.

This cause is heard here on appeal.

The action was 'brought under the provisions of Sections 10857 and 10858 of the General Code to obtain the direction of the court respecting the property to be administered under the trust created by the will of Franklin Alter, deceased.

The testator, a resident of Cincinnati, Hamilton county, Ohio, executed his will in August, 1909. He died in February, 1916, and the will was duly admitted to probate in March, 1916. It is a document of some twelve printed pages. The questions arise under Item YI, which disposes of the residue of the property. It is devised and dequeathed to the trustees herein in trust for a period of ten years from the date of the testator’s death “to be held, managed, controlled and invested, and from time to time as need be reinvested by my said trustees for the period of ten years from and after my death (for the benefit and advantage of my eight children) namely Franklin Alter, George A. Alter, Henry T. Alter, Robert S. Alter, Lueien AY. Alter, Blanche Alter, Elizabeth T. Alter, and Rebekah AY. Alter.” The trustees are directed to pay to each of said children $2,500 per annum.

It is further provided: “Should the net income of my estate be more than sufficient to pay each of my said children the sum of $2,500 per annum, such excess shall go in augmentation and become a part of the principal of my estate.”

The will provides that in the event of the death of any particular child before or after the death of the testator (leaving issue), the trustees shall .pay annually to its issue per stirpes the portion of the parent. In the event of the death of any child leaving no issue, or leaving issue all dying before the period of final distribution, that part of the income which was to have been paid to such child shall go in augmentation and become a part of the principal of the estate.

The trustees are directed to sell and dispose of the stock in the American Tool Works Company of Cincinnati, Ohio, within one year after the testator’s death, unless they shall unanimously agree to hold it for a period of three years “then and in that event, I direct that said stock be sold and disposed of at the end of the last mentioned .period. ’ ’

The will then provides: “ At the end of ten years after the date of my death, I hereby authorize, direct and empower my trustees and executors, to convert my entire estate then remaining into money, except as hereinafter provided, and for that purpose I authorize and empower my trustees and executors to sell all my real estate then undisposed of and to convey the same by good and sufficient deeds to the purchaser' of purchasers thereof. When my estate is so converted into money, I direct that my trustees and executors, after the payment of all costs and expenses incident to the administration of my estate (shall pay the same out) subject to the advancements made by me as hereinafter set forth, as follows :

One-eighth part thereof to my son Franklin Alter, and his heirs.”

The other seven-eights are given to the other seven children by language identical to that with reference to Franklin Alter. One of the children, Henry T. Alter, predeceased his father. He was childless, unmarried and intestate.

The first cause of action in the petition asks instructions as to the following matters.

(a) Whether or not the estates created by Paragraph 6 of Item VI of said "will to each of testator’s children and their heirs is a vested estate, in fee simple in each of said children.

(b) 'Whether or not the estates so created by said paragraph 6 of Item VI of said will, for said children, can be mortgaged, encumbered, sold, and transferred by said children; or passed by their wills.

(c) Whether or not said children may by instruments in writing duly executed transfer or assign their interest in the estates so given to them by said paragraph 6 of Item VI of said will, to take effect at once, and what form of instrument is necessary to effect said transfer and protect said trustees.

(d) Whether or not the now surviving children of said testator, each of them own absolutely and in fee simple, the one-seventh of the one-eighth of testator’s estate given by testator to his son Henry T. Alter by said paragraph 6 of Item VI of said will.

(e) Whether or not said trustees now have the power under said will to sell the shares of stock owned by the estate in the American Tool Works Company of Ohio.

In the second cause of action the plaintiffs allege that at the time of the making of the said will, the income from the estate of the testator was not substantially more than sufficient to pay the eight children, then living, the sum of $2,500 per annum each, but that since the making of the said will, expecially since about one year before testator’s death, his estate was greatly increased in value, so that at the time of his death and ever since, the income of the trust estate has been vastly more than sufficient to pay the sum of $2,500 to each of his (now) seven children, the income being in excess of the sum of $100,000 per annum.

By amendment to the amended petition it is further alleged that the plaintiff, Franklin Alter, is fifty years of age, George T. Alter is forty-nine years of age; that Franklin Alter was formerly in the Revenue Service of the United 'States Government, and that at about the time of the death of his father he was deprived of his said office and salary, and it has been impossible for him to find employment; that he has a wife and children to support, and he has no other income than said $2,500 per annum, which, under present circumstances and conditions is wholly inaedquate for the support of himself and -his family. That George T. Alter is now afflicted with heart trouble, and in consequence thereof is unable to engage in any business or calling that will enable him to earn his own support; that he is required to support his daughter, and that under present circumstances and conditions, the sum of $2,500 per annum is wholly inadequate for his needs.

The facts are not seriously in dispute. It is contended on behalf of the trustees that the testator’s children do not take a vested interest, but that they have, in the language of Holt v. Lamb, 17 O. S., 374, 387, an equitable right to have the property sold. Applying this doctrine, they maintain that the will in question creates gifts contingent upon their surviving the ten year period. They cite Barr v. Denney, 79 O. S., 358, and the eases therein referred to, A vested interest is one in which there is a present fixed right either of present enjoyment or of future enjoyment. Page on Wills, Section 656.

What, then, was the intention of the testator as evidenced by the language of the entire will ? Undoubtedly the law favors the vesting of estates and unless a condition precedent to vesting is clearly expressed, courts incline to that construction which treats interests given under the will as vested in the donee at the death of the testator. See Bolton v. Bank, 50 O. S., 290; Linton v. Laycook, 33 O. S., 128; Brasher v. Marsh, 15 O. S., 103.

It will be noted that the testator has directed the division of an estate among specified persons, only by a direction to divide and pay. A bequest in the form of a direction to pay or to pay and divide at a future period vests immediately, if the payment be postponed for the convenience of the estate, or to let in some other interest. Hawkins on Wills, 232. The whole subject is treated in the note in L. R. A., 1918 E., page 1097.

It appears from the entire will, however, that the testator intended that each of his children was to be the owner of one-eighth of his residuary estate, even though he stipulated that for ten years the management should be withheld from them, and híj 'further desired to restrict their enjoyment of it during that period. Unlike the ease of Barr v. Denney, supra, the distribu tion is to beneficiaries now known. In the event that all of his children should have died during the ten year period, there is no disposition of the estate by the testator. If their gifts are contingent, and the conditions not fulfilled, the construction contended for on behalf of the trustees would make possible an intestacy as to the residuary estate. We hold that the will gives each of the surviving children a vested equitable interest. This conclusion disposes of the first four questions propounded. It is, however, only preliminary to the consideration of the application to increase the allowances of $2,500 to each of the children as the claim of plaintiffs is based upon the absolute ownership of the share, the income of which it is now sought to anticipate.

The evidence shows that plaintiff, George T. Alter, is a man now fifty years of age. He is afflicted with heart trouble, which not only impairs his ability to earn a livelihood, but tends to increase his requirements. His condition is such that there is a possibility, if not a probability, that a delay in the enjoyment of his father’s bounty may nullify the benefits to him of the gift itself.

The older brother, Franklin Alter, is now past fifty years of age, and has a family to support. In view of the increase in the cost of living, the amount provided by his father will not provide the bind or character of a livelihood which a testator, writing his will in 1909, would have contemplated as the result of a gift of that magnitude. In arriving at the intention of the testator the court should as far as possible try to put itself in the position of the testator at the time of making the will. Jewett v. Jewett, 21 C. C., 278. It appears .from the will that Franklin Alter in his ■lifetime made advances to those of his children whose necessities required it.

A review of the authorities, many of which are set out in the note in 46 R.R.A.(N.S-), 43, leads us to conclude that where a testator gives an absolute and vested bequest, but provides for a postponement of the enjoyment thereof, and when an exigency, non-existent at the creation of the trust, arises, which is one not then anticipated by the testator, a court of equity may substitute another course of management of the trust fund, in order to bring about a more complete realization of the purposed bounty. It may order an acceleration of the enjoyment of income or principal of a trust which neither expressly or impliedly authorizes such a course to be taken. See Bennett v, Nashville Trust Co., 127, Tenn., 126; Pitts v. Rhode Island Hospital Trust Co., 21 R. I., 548; Rhoades, Executor, v. Rhoades, et al, 43 Ill., 239; Longworth v. Riggs, 123 Ill., 208; Knorr v, Millard, 52 Mich., 542; Curtiss v. Brown, 29 Ill., 201.

It is not the mere convenience or even the benefit of the beneficiaries which will move the court to hasten enjoyment of trust funds, but the necessity of varying the terms of the trust in order to give effect to the ultimate intention of its creator.

In the case at bar the income which the estate is required to pay the beneficiaries is $17,500 per year. The record shows that for the past four years the average annual income has been in excess of $150,000. The principal is piling up, and belongs indefeasibly to the children of the testator, who stand by and are unable to procure the wherewithal to meet their obligations, and to educate their children in accordance with the station of life which is now their proper expectancy. Indeed, as the interests of the children are vested, they might be subject to execution, and the refusal of the court to accelerate the enjoyment of the fund might result in loss of the fund in which no person has any ixiterest but the legatees.

The court is of opinion that the case of George Alter presents a clear instance for the application of the doctrine set forth, and that the situation of Franklin Alter, while perhaps not so strong, likewise requires a similar order. The court will order an increase in the annual amounts directed under the will to be paid to each of them to $6,000, subject to the further order of the court.

It will be noted that as to the share of each, no other person can by any possibility have any interest in the fund except those who are the “issue” of the children of the testator, and their interest is only a contingent interest in the income during the remainder of the ten year period. Our decision, therefore, can not prejudice any person who might be interested, nor lessen the interest of any parties in the estate in any way whatsoever. It dees not increase the quantum of the inheritance of George or Franklin.

As to the other children of the testator, their present situation shows no reason for the interposition of a court of equity. The trustees will be directed to charge the additional payment hereby ordered against the shares of George and Franklin respectively, so that on final distribution each of the brothers and sisters will get his full share with its accumulations.

Let us now take up the question as to whether the trustees now have power under the will to sell .the shares of stock in the American Tool Works Company, now owned by the estate. It is urged that they no longer have the right to sell the stock.

At the time of the death of the testator, The American Tool Works Company was a corporation organized under the laws of West Virginia. Thereafter, in 1918, its directors caused a corporation of the same name to be incorporated under the laws of the state of Ohio. The property of the West Virginia corporation was transferred to the Ohio corporation and each of the stockholders thereupon received the same number of shares of the same par value in the Ohio corporation that they had previously held in the West Virginia Company. The assets of the corporations were identical. It is contended that this constitutes a sale and that the trustees have, by consenting to the foregoing, exercised and spent the power of sale given to them under the will.

It is apparent to the court sitting in equity that the change was one of form and not of substance, so far as constituting a sale was concerned. It was in effect the procuring of naturalization of the foreign corporation. The conduct of the trustees, in not taking action, while the question of their power to do so was being litigated in the courts, was not improper. The trustees are directed by the will to sell “at the end of” the three year period. The power granted to the trustees was monitory in its nature and is not defeated by the delay in its exercise shown by the facts in this case. See 2 Perry on Trusts, Section 490 and note 5.

It further appears that all of the beneficiaries desired that the stock now held by the trustees be not sold. They all join in urging that no sale be made. They contend that by their, conduct they have now estopped themselves from calling the trustees to account, if 'the trustees should comply with their request, and that therefore the trustees should be required to carry out their wishes since they now incur no liability thereby. It is not necessary for this court to determine whether the trustees would be protected if they should acquiesce in the position of the legatees and carry out their request. The sole question upon which the direction of the court is asked, is, whether the trustees now have the power to sell.

In addition to the specific direction to sell the stock of the American Tool Works Company, the will authorizes the trustees to “hold, manage, control, and, from time to time, as need be, reinvest.” So long as a trustee acts in good faith he is not subject to the control of the beneficiaries, nor of the courts in the reasonable exercise of the discretionaiy power conferred upon him. See 2 Perry on Trusts, Section 509; also note 8 L.R.A. (N.S.), 398.

The court, therefore, will not enjoin the trustees from making sale of the stock of the American Tool Works Company.

A decree may be drawn embodying the foregoing.

Hamilton and Cushing, J. J., concur.

      For opinion below see 22 N.P. (N.S.), 517.


author: Allbead, J.

text:
    TITLE NOT PASSED BY DELIVERY TO CARRIER UNDER CONSIGNMENT.
    Court of Appeals for Shelby County.
    Motch & Merryweather Machine Co. v. Sidney Machine Tool Co.
    Decided, December 12, 1919.
    1. A manufacturer at Sidney, Ohio, ordered machinery “Net f. o. b. cars at Cincinnati, Ohio, deliverd October.” The order was accepted “f. o. b. Oakley (Cincinnati), delivery October, terms, draft attached to B. L.” The modified terms were acquiesced in. The machinery was delivered to the carrier at Cincinnati, October 31, consigned to the order of the seller with directions to notify the purchaser. The bill of lading was forwarded to the seller at Cleveland, Ohio, - who, on November 4 forwarded the same, with draft attached, to a collecting bank in Sidney. The shipment and payment of the draft were refused. Held, the delivery was not made in October as per contract and the purchaser was not bound to accept delivery.
    2. Delivery to a carrier under a consignment to the seller (the bill of lading being forwarded to a collecting bank) does not pass title to the purchaser at the time of delivery to the carrier, but the title is thereby reserved to the seller until actual tender or delivery of the machinery to the purchaser.

      Wicoff & Tmrnons and Wilkin, Cross & Dcmst, for plaintiff in error.

      P. B. Taylor, for defendant in error.
   Allbead, J.

Heard of error.

The original action was brought to recover the purchase price of certain machinery claimed to have been sold by the plaintiff in error to the defendant in error. The answer, among other things, denies that the property was delivered according to contract.

From the record it appears that the machinery in question was ordered upon open account “Net f. o. b. ears at Cincinnati, Ohio. Delivery October.” There is a statement in the order showing that the time of delivery was important. The order was accepted by plaintiff in error subject to the following: “F. O. B. Oakley, delivery October, terms, draft attached to B. L.” The added terms were inferentially accepted by defendant in error.

It also appears that the goods were shipped on October 31 from the Cincinnati Planer Company, Oakley, Cincinnati, Ohio, consigned to the order of the plaintiff in error, with direction to notify the defendant in error. The bill of lading was evidently forwarded from Cincinnati to the plaintiff in error at Cleveland, Ohio.

On November 4 the plaintiff in error wrote the defendant in error that the shipment had been made as above stated, and that the bill of lading, duly indorsed, together with a sight draft, had been forwarded by the plaintiff in error to the First National Bank of Sidney for collection.

On November 7 the defendant in error by letter notified the plaintiff in error that the shipment had arrived in Sidney and awaited unloading by the defendant in error, which the defendant in error was prepared to do on the basis outlined in the letter. The substance of the letter was that the defendant would accept the shipment if the terms were changed from a sight draft to a credit of thirty days. This credit was denied by the plaintiff in error, and the defendant in error thereupon canceled the order and refused acceptance of the goods.

The first question for determination is whether there was a delivery within the month of October; the second, whether the delivery as made was accepted by the defendant in error.

It is claimed by counsel for plaintiff in error that delivery was made under the provisions of the sales act (99 O. L., 413) when the goods were delivered to the carrier at Oakley, Cincinnati, on October 31.

The defendant in error contends that the delivery to the carrier on October 31, was not a delivery to the defendant in error, and that the goods were for the first time tendered for delivery when the same reached Sidney some days later, and when the bill of lading and draft were presented by the Sidney bank.

The important feature of this transaction is the consignment under a bill of lading to the order of the plaintiff in error instead of to the order of the defendant in error.

The effect of delivery to a carrier under a bill of lading is defined by paragraphs 2 and 3, Sec. 8400, G-. C., as follows:

“(2) When goods are shipped, and by the bill of lading they are deliverable to the seller or his agent, or to the order of the seller or of his agent, the seller thereby reserves the property in the- goods. But if, except for the form of the bill of lading, the property would have passed to the buyer on shipment of the goods, the seller’s property in the goods shall be deemed to be only for the purpose of securing performance by the buyer of his obligations under the contract.
“(3) When goods are shipped, and by the bill of lading the goods are deliverable to the order of the buyer or of Ms agent, but possession of the bill of lading is retained by the seller or his agent, the seller thereby reserves a right to the possession of the goods, as against the buyer.”

By the first sentence of paragraph 2 the transaction in question would have the effect of reserving the property in the goods to the seller.

The second sentence of paragraph 2 is designed to relieve against the mere form of the bill of lading, where, the real intention was to transfer title subject only to the performance of certain conditions, such as payment, etc.

We think, however, that provision does not apply for the reason that the transaction here does not have the effect of passing title. The seller did not surrender control of the bill of lading at the time of the shipment. The bill of lading was evidently sent from Cincinnati to the seller at Cleveland and was in the possession and control of the seller on November 4. On that date the bill of lading with sight draft was mailed to a collecting bank at Sidney. This bank was the agent of the plaintiff. The bill of lading and sight draft arrived at Sidney on November 7. Up to that date the bill of lading was in the control of the seller. In order that the transaction itself should pass the title to the buyer it should appear that the seller had surrendered control of the property.

By paragraph 2 above quoted the retention of the bill of lading even where the shipment is to the order of the buyer is a reservation of the right of possession. For a stronger reason the retention of the bill of lading would be a reservation of the right of possession where the seller also makes the shipment to his own order. We are, therefore, of opinion that the second sentence of paragraph 2 above quoted does not apply to the case at bar and that under the first sentence of paragraph 2 the seller reserved title to the property shipped.

AYe are confirmed in this view by the case of Petersburg Fire Brick & Tile Co. v. American Clay Machinery Co., 89 Ohio St., 365 (106 N. E., 33). The facts in the Brick Company case were somewhat similar to those in the ease at bar. In the opinion this significant statement is found, at page 373:

"This merchandise was not delivered f. o. b. cars at Bueyrus, or Willoughby, or factory where made, for shipment to the brick company at Goal Grove, but was delivered to the common carrier for shipment to the machinery company at Coal Grove. The delivery to the common carrier was not actual or constructive delivery to the purchaser. There was no time in the history of this transaction when the machinery company parted with the possession or right of possession of this machinery, nor was there a time when the brick company had a right to demand or require the common carrier to deliver this machinery to it.”

Likewise, it may be said that the machinery in the case at bar was not delivered to the common carrier at Cincinnati, Ohio, for delivery to The Sidney Machine Tool Company; but the delivery was to the common carrier for shipment to the plaintiff in error. The delivery to the common carrier was not actual or constructive delivery to the purchaser. There was, within the stipulated period, no delivery, actual or constructive, to the defendant in error. When a delivery was actually tendered subsequently to the month of October the said machine tool company had the right to reject the same.

We think thé letter of The Sidney Machine Tool Company of November 7 was not an acceptance of the machinery, but was an offer to accept the same upon certain conditions. When the plaintiff in error rejected the conditions The Sidney Machine Tool Company had the right to unqualifiedly reject the machinery, and this we think it did by its telegram of November 14.

It therefore follows, first, that there was no delivery, actual or constructive, to The Sidney Machine Tool Company within the stipulated period; second, The .Sidney Machine Tool Company did not accept, but on the contrary rejected the subsequent delivery of the machinery. The court of common pleas did not err in holding for the defendant.

Ferneding and Kunkle, JJ., concur.

       Motion to require the Court of Appeals to certify its record in this case overruled in the Supreme Court, March 2, 1920.


author: By the Court.

text:
    PROCEEDING TO ENFORCE STOCKHOLDERS LIABILITY.
    Court of Appeals for Hamilton County.
    The Cincinnati & Columbus Traction Co. v. The Union Savings Bank & Trust Co.

    Decided, April 22, 1918.

      Corporations — Suit to Collect Unpaid Stock Subscriptions — Not a Chancery Case and Not Appealable — Jurisdiction of Court of Appeals...

    An action to collect unpaid subscriptions to the capital stock of a corporation is not a chancery case within the meaning of Section 6, Article IV of the Ohio Constitution, and is not appealable.

      D. W. Murphy and Thos. L. Michie, for appellant.

      Murray Seasongood and Robert P. Goldman, for appellees.

      J. Schroder,'for A. G. Schwab, and John G. Mealy, for Virginia R. Burch.

       For subsequent opinion in on another branch of the same litigation, see Cincinnati & Columbus Traction Co. v. Union Savings Bank & Trust Company, post.

   By the Court.

Heard on motion to dismiss appeal.

The original proceeding in this ease was an action for the appointment of a receiver, marshaling of liens and the foreclosure of a mortgage. A cross petition was filed on behalf of Daniel W. Murphy, administrator of the estate of Otto Smith, deceased, setting up a judgment obtained against the Cincinnati & Columbus Traction Company for wrongful death and seeking to secure payment of balances due on subscriptions for stock made by numerous stockholders of said traction company. An order had been made in this case directing the receiver to proceed to the collection of any balances that might be due upon said stock subscriptions.

The court of common pleas sustained the demurrers to the amended supplemental cross-petition of said Daniel W. Murphy, administrator, and, said cross-petitioner having elected to stand on the averments of said amended supplemental cross-petition, and declining further to amend or plead, a judgment was entered dismissing such amended supplemental cross-petition at the cost of said cross-petitioner. To this judgment notice of appeal was given by said Murphy, administrator, and proceedings taken to perfect an appeal in this court.

The case coming on to be heard in this court a motion to dismiss the appeal for want of jurisdiction is filed.

The jurisdiction in appeal, of the court of appeals, is fixed by Section 6, Article IV of the amended Constitution, which gives the right of appeal only in chancery cases. The case of Wagner v. Armstrong et al, 93 Ohio St., 443, has discussed and defined this right.

An action to collect an unpaid subscription to capital stock of a corporation is a suit at law to recover a money judgment. (Smith, Recr., v. Johnson et al, 57 Ohio St., 486.)

“A court of equity has no jurisdiction, on the ground of avoiding a multiplicity of actions at law, of an action against a corporation which his been adjudicated a bankrupt, to enforce collection of unpaid subscriptions by stockholders of such corporation, as the liability of each stockholder presents a separate controversy unconnected with that of any other. ’ ’ Kelley, Trustee, v. Gill, 62 L. Ed., 185 (245 U. S., 116). See also Hale v. Allison, 188 U. S., 56.

The cross-petition upon which appeal is sought does not raise a chancery question, and the court is therefore without jurisdiction.

The motion to dismiss the appeal is granted.

Jones, P. J., and Hamilton, J., concur.

Wilson, J., not participating.