text:
    The United States Bung Mfg. Co., Appellant, v. City of Cincinnati, Appellee.

      (No. 6277
    Decided July 12, 1943.)

      Messrs. Bettinger, Schmitt & Kreis, for appellant.

      Mr. John D. Ellis and Mr.. Edward F. Alexander, for appellee. .
   Matthews, J.

The question developed by the trial of this appeal on questions of law and fact is whether the plaintiff, a taxpayer, has established a right to an injunction on the ground that the defendant will, unless restrained, commit an “abuse of its corporate powers” within the meaning of that phrase as used in Section 4311, General Code. The plaintiff alleges in its petition that the city council has passed a resolution authorizing the United States to construct a flood wall in West Eighth street, a public street in the city of Cincinnati, and will permit the structure to be built, unless restrained ; that such flood wall will constitute a permanent obstruction of the street and a diversion from the use for which the street is held by the defendant in trust for the public; that the plaintiff has demanded in writing that the city solicitor institute an action to enjoin this abuse of corporate power; that the city solicitor has refused; and that this action was brought after such refusal. Although not expressly alleged it is manifest that the alleged right which the plaintiff seeks to assert is not its private right, but rather the right of the body politic, and the authority for so doing is found in Section 4314, G-eneral Code.

As there is no substantial dispute as to the.facts, we will not concern ourselves with the specific issues raised by the pleadings other than to say that they were adequate for the development of the facts.

It appears that prior to 1870 the west terminus of Eighth street was at the west line of Evans street In that year the owner of the land lying to the west dedicated a strip eighty feet wide to the use of the public so that Eighth street could be projected westwardly several hundred feet. The dedication was accepted by the city of Cincinnati and it became a part of Eighth street which extends across the basin of the city of Cincinnati to the hills on either side, and is now a part of the transcontinental highway known as the Atlantic and Pacific highway.

Mill creek, a tributary of the Ohio river, crosses Eighth street several hundred feet to the east of the section that was dedicated in 1870. It is a shallow stream which overflows its banks when water from the Ohio river backs up, covering with water and rendering. impassable Eighth street at its original grade. A bridge or viaduct was constructed early on Eighth street spanning Mill creek itself and a considerable part of the flood area on either side. It was found that the approaches to the original viaduct were flooded at times, and by 1926 it had also become inadequate to accommodate the traffic. Because of this situation the city, the county, and the state co-operated to improve Eighth street, so that it would take care of the traffic and be available all the time. As the result of the cooperation, the county commissioners built a concrete viaduct extending from McLean avenue on the east to Burns street on the west. It was seventy feet wide (much wider than the original viaduct) and much longer. The western end was built on the section of Eighth street that was dedicated in 1870. Some of the abutting property owners on that section had improved their property with reference to the existing grade and as this viaduct was about 30 feet above that grade and was supported by large concrete pillars, their right of ingress and egress was affected. Because of this, the county instituted an action against the property owners to appropriate their rights and assess the damage to them resulting from the construction of the viaduct in front of their premises. They were compensated in an amount fixed by agreement or judgment of court.

From Evans street westwardly for a distance of 450 feet, the viaduct was supported by fifteen concrete pillars along the center line of Eighth street and an equal number on a line near the sides of the viaduct, and these pillars were connected by arches supporting the superstructure. The pillars along the center line were five feet, two inches, measured transversely of the center line and the side pillars were three feet, six inches. The other horizontal dimension varied from two feet, six inches to five feet, four inches. They extended upward tc- the viaduct floor which was 30 feet above at Evans street, but sloped downward so that at a point 450 feet west it was 21 feet above. The floor above and these pillars formed a subway that came to an end at Ihe west end of the viaduct.

No proceeding to vacate any part of Eighth street was instituted. Although not a part of the original plan, a ramp was built from a certain point on this section whereby traffic could proceed from the viaduct down the ramp to a public street, to the west, and thence to this portion of Eighth street under the viaduct, which has been maintained as a public street and used as a means of access to the abutting property, although some have entrances from the viaduct. The space really formed two streets — one, 21 feet wide south of the center pillars, and one of equal width north of those pillars.

As a result of the flood of 1937, the desirability of some protection of the people and property in the Mill creek valley against the recurrence of such a disaster became apparent. A flood wall across that valley to prevent water from the Ohio river from backing up was decided upon. Under the plan, the city of Cincinnati was to furnish the site and the United States was to build it. The location first selected required the acquisition of property from private owners, including the plaintiff. It was found that the cost would be excessive in the view of the city officials. The result was that the city officials concluded to connect the center pillars supporting the viaduct with a concrete wall twelve feet high and about two feet thick, and use it as a part of the flood wall, thereby making it unnecessary to acquire certain property from the owners in that vicinity The city council passed a resolution relocating the flood wall at that point and authorizing the United States to proceed with the construction. It should be said here that a gate was provided so that traffic could pass from one side of the wall to the other and the gate would be closed only during floods requiring its closing, but the closing of the space between the pillars will prevent using the street as freely for turning and maneuvering vehicles.

Now should this use of the street be enjoined at the suit of a taxpayer?

By the original dedication and its acceptance the city of Cincinnati acquired the fee simple title in trust for street purposes. The beneficiary of that trust was the public and not the dedicator or his successors in title of the abutting property. As long as it used it for street purposes its title could not be questioned by any one. The right of the abutter was a mere possibility of reverter upon finding of the fact by the city — the trustee — that it was no longer used or useful for street purposes. It owed the duty to the public imposed by statute to keep the street open, in repair, and free from nuisance. It owed no such duty to the dedicator; and it owed no duty to the public to maintain the space open for travel for its entire width. Its title would not have been in jeopardy or liability incurred to the public had it maintained a street for travel at the original grade at a minimum, expense instead of expending the large amount required to construct viaducts to raise the traveled portion above the flood level. And had it done this by constructing an embankment or levee instead of a viaduct no one would have suggested that it had abandoned the street or diverted the land to another use notwithstanding it would have completely excluded the public from its use at the original street level. It would have been an excessive use beyond the terms of the original dedication, entitling the abutting owners to compensation for interference with access, but the property originally dedicated would still be used for street purposes. And the fact that the embankment upon which the road was constructed would also serve as a flood wall would not change the legal aspect, even though it should appear that the public authorities had its utility as a flood wall in mind at the time.

And then this almost complete title by virtue of the original acquisition has been added to by payment to the abutting property owners when the viaduct was constructed.

It is thus seen that the plaintiff is seeking to enjoin the use for a public purpose of property, the title to which is almost complete in the public; and this injunction, if it is granted, must be on the ground that it involves an abuse of power.

Now will the joining of these concrete columns by the described concrete wall constitute a street purpose? The purpose is not described in such terms. It seems usually to have been referred to as “The Mill Creek Barrier Dam Project.” To. determine whether the members of the city council actually considered specifically the relation it would bear to the use of Eighth street as a street would require resort to psychoanalysis, which is beyond the judicial function. We can consider the meaning of what was said and done under the circumstances and the natural effect of the accomplishment of the plan. .

We can see that the purpose was to confine flood water to the area south of the flood wall, so that the a.rea north of the wall would not be inundated. By this means a part of the area would be saved from the ravages of the flood and retained for use during the flood, whereas, in the absence of the wall, the entire area during a flood would be covered with water and its use by the private owners and the public ex-eluded. Eighth street was within this area and subject to be rendered unusable as a street at any time. If the flood wall were located north of Eighth street the entire street would have remained in the flood area. Should it be located entirely south, Eighth street for its entire width would be freed from the hazard of inundation. The public authorities decided to do neither, but to place'the wall along the middle line of the street so that the north half would be available under the viaduct at all times and the south half available as it had always been, that is, subject to the hazard of floods. We cannot say that this wall will not serve a purpose incidental to the use of Eighth street as a street.

So upon the completion of this wall, we find that the defendant has improved this land held by it in trust for street purposes, that traffic can proceed over the viaduct at all times for a width of seventy feet and under the viaduct at all times for a width of approximately the same width, subject to the hazard of floods on the south half and on the north half free of the hazard of floods.

In the light of these facts can it be said that the defendant has diverted, or contemplates diverting, this land to purposes other than street purposes, or has abused corporate power by violating the trust upon which it holds title? We do not think so.

In 21 Ohio Jurisprudence, 1046 et seq., it is said:

“Inconvenience to third persons and to the public at large is also to be considered in determining an application for an injunction. An injunction will not be granted where it might be a serious detriment to the public without corresponding benefit to the plaintiff. For this reason a taxpayer’s application for an injunction against the issuance of bonds by a city may be denied where it does not appear that he will suffer any serious injury from such denial, while serious and possibly irreparable loss to the city would attend the allowance of the injunction.

‘ ‘ The avoidance' of inconvenience and loss to the public is, of course, the basis of the rule previously stated, requiring special caution in granting injunctions interfering with or suspending the operation of important public works. An important public improvement, the prevention or postponement of which will greatly imperil, inconvenience, or injure the public, ought not to be enjoined on application of one whose injury or inconvenience if the injunction is denied will be slight or doubtful, or capable of being adequately compensated at law.”

The rule is recognized generally, as is shown by the text in 28 American Jurisprudence, 254:

“The paramount interests of the public may have some bearing on the matter of granting injunctive relief to protect private rights. The fact that an important public interest would be prejudiced by the granting of the injunction sought in a particular case may be a compelling reason for denying the injunction. The existence of such public interest will, at least, furnish a court of equity sufficient ground for exercising its discretion to refuse the remedy, and the court would seem bound to stay its hand in the public interest, where it reasonably appears that the private right will not suffer by the refusal of the writ or order, where the damage to the complainant from denying the injunction will be slight, where the right invaded is merely a technical or unsubstantial one or where the injury is one which can readily be compensated in damages, while the issuance of the writ or order may or would occasion public inconvenience. Courts will not enjoin the construction or use of public utilities and improvements at the suit of private individuals, unless the damage is both serious in amount and irreparable in character.”

Thus it is seen that a court of equity would not enjoin a great and desirable public improvement to protect a mere technical or unsubstantial private right and it seems to us that there are stronger reasons for denying an injunction where no private right is asserted.

The evidence in this case does not convince us that any property right of the original dedicator or abutting property owners or successors to his rights has been violated by what has been done or what is contemplated. It certainly does not convince us that the defendant has abused or contemplates abusing its corporate power.

We take notice of other specific objections to the maintenance of this action in the form in which it is prosecuted, but as we have found on the merits for the defendant, we do not pass upon those objections.

For these reasons, the court finds for the defendant. A judgment entry may be presented dismissing the action at the cost of the plaintiff.

Decree accordingly.

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


source: Caselaw Access Project

author: Phillips, P. J.

license: Public Domain

text:
    Lamarr, Appellant, v. W. T. Grant Co., Appellee.
    (No. 2881
    Decided April 14, 1943.)

      Mr. Morris Mendelssohn, for appellant.

      Messrs. Wilson £ Wyatt, for appellee.
   Phillips, P. J.

Plaintiff appeals to this court on questions of law from a judgment for defendant entered by the Court of Common Pleas upon defendant’s motion for judgment in its favor notwithstanding the verdict. Plaintiff’s action was to recover damages for personal injuries. She assigns the sustaining of. such motion as the sole ground for the reversal of the judgment of the trial court.

Defendant in its answer admitted its corporate identity, location and operation of the store in question, denied that it carelessly and negligently allowed ‘ ‘ slippery foreign matter to remain on the floor of its store,” knew of or failed to warn plaintiff of its existence thereon, or failed to maintain such floor in a reasonably safe condition for “customers to walk upon,” and alleged that if it should transpire that it was negligent in any respect as pleaded, then and in that event plaintiff was guilty of negligence which directly and proximately caused and contributed to any injury she received.

We learn from defendant’s admissions and plaintiff’s testimony offered upon direct examination, which constitutes the only evidence submitted to us for review, that defendant’s “-department store” is situated on the southerly side of West Federal street in downtown Youngstown; that among other aisles situated therein are two aisles, referred to herein as the easterly and westerly aisles, extending in a general northerly and southerly direction, which are approximately fifty to seventy-five feet long and five feet apart; that on the day alleged in her petition plaintiff entered defendant’s store through its westerly entrance at a time when its store was “open to the public for the purpose of carrying on defendant’s business;” that she walked along the westerly aisle to the rear thereof and made purchases, at which time she had been in the store “about twenty or twenty-five minutes;” that she then crossed over to the easterly aisle and walked thereon to the front of the store; that “she was anxious to get home;” that, upon reaching the front of the store, she changed her mind about leaving and immediately walked toward the rear of the store in a southerly direction along the easterly aisle and had reached'a point about the middle thereof, near what she described as “a notion counter,” when she ‘ stepped on a piece of candy in cellophane paper ’ ’ and “just slipped that way” when “her ankle went under her;” that she went forward about five or six feet and “stumbled” into and against such counter, sustaining personal injuries; that the day was rainy and the floor of defendant’s store was wet near the front thereof “right at the door;” and that she had passed the place where she slipped and stumbled only that length of time before she slipped, which she consumed in walking from that point to the front of the store and return to the place where she stumbled, which in no event could have been more than a few minutes, since the distance she walked was no more than 150 feet.

There is no evidence that the floor of defendant’s store was wet where plaintiff stepped when she slipped and stumbled, or that there was ‘ ‘ candy in cellophane paper” on the floor when plaintiff walked in the easterly aisle to the front of the store; that defendant sold candy “in cellophane papers;” that the candy or cellophane paper upon which she allegedly slipped were the property of or were sold or placed on the floor by the defendant, its servants or employees; and there is no evidence as to the length of time such candy was there before plaintiff was injured.

Without further discussion it is obvious, upon such evidence, that plaintiff failed to prove that defendant was responsiblé for the presence of the “candy in cellophane paper” in the aisle in question or that it failed to discharge the duty owed to her “to exercise ordinary care to have and keep the floor in question in a reasonably safe condition” for her use.

The judgment of the lower court is affirmed.

i

Judgment affirmed.

Carter, J., concurs.

Nichols, J., concurs in judgment.


author: Carpenter, J.

text:
    Freese, Appellant, v. Streicher, Admr., et al., Appellees.
    (No. 3898
    Decided June 1, 1942.)

      Mr. Ben L. Levine and Mr. Edwin J. Lynch, for appellant.

      Messrs. Streicher, Gorman $ Jenne and Mr. John E. Daniells, for-appellees.
   Carpenter, J.

This was an action on a promissory 'note. The plaintiff, Hollice Freese, the payee, asked a judgment against defendant August M. Streicher as administrator of the estate of the maker, Victor N. Martin, and against the defendant Aetna Life Insurance Company, claiming that in the note the maker assigned to her to secure her loan to him a part of the proceeds of an ordinary life insurance policy he then held with that company. A jury was waived and on trial the judgment was for the plaintiff against the administrator, but against her claim as to the insurance. The plaintiff appealed on questions of law, assigning as error that the judgment for the company is against the weight of the evidence and contrary to law. The essential facts are undisputed.

The note in question is as follows:

“$1,000.00. Toledo, O., May 13, 1936.

“On death after date I promise to pay to the order of Hollice Freese one thousand and no/100 dollars. Payable from insurance policy Aetna Co.

“Value received with interest at no per cent per annum.

“Due on Death. Victor N. Martin.”

At the date of the note there was in effect only one life insurance policy issued by the defendant Aetna Life Insurance Company on the life of Victor N. Martin, and that was an ordinary life policy for $5,000. Ilis wife, Hilma C. Martin, was the named beneficiary therein, but the insured, at that time, had reserved the right to change the beneficiary. A deferred settlement plan by payment in installments, irrevocable by the beneficiary, was provided for in the policy.

The policy was in effect at the death of the insured in 1940, and defendant August M. Streicher was appointed administrator of his estate. A proof of claim was duly presented to the administrator and was rejected and this action was commenced in due time against the administrator and the insurance company. The prayer was a judgment against the administrator for the $1,000 “and for all proper relief.” The further prayer was that the company “be enjoined from paying over to any person any of the proceeds of policies of insurance insuring the life” of Victor N. Martin until final order herein.

The answer of the company admitted the insurance, the death and administration, but denied the other allegations of the petition and pleaded that Hilma C. Martin was the “duly designated beneficiary”; that, by the terms of the policy, the beneficiary could be changed only on written request to and acceptance by the company; and that all monies due were to be held in trust by it for the beneficiary and were not subject to claims of any creditors of the insured, or of the beneficiary.

Only $1,150 of the $5,000 had been paid by the company to Hilma C. Martin when this action was comineneoJ and no further payments have been made to her.

The answer of the administrator admitted the formal allegations of the petition and denied generally the debt and claims as to insurance.

The only express relief asked against the company is an injunction. From the arguments of counsel this court had the impression that a judgment at law against the company was sought. The judgment entry recites that the parties “waived trial by jury and consented that this case be tried by the court,” thus indicating they then regarded it as an action at law. The brief asks a lien on the insurance funds. Whatever relief was desired could have come only under the “and for all proper relief” feature of the prayer.

At most, the note in question could be regarded only as an assignment of a part of the debt the company owed on the death of the insured, and it is not claimed that either the company or the beneficiary, Hilma C. Martin, accepted the assignment or had any notice of it before this claim was presented to the administrator, if then.

This being an assignment of but part of the debt, a chose in action, the plaintiff cannot recover on it in an action at law. Pittsburg, C., C. & St. L. Ry. Co. v. Volkert, 58 Ohio St., 362, 50 N. E., 924, settles that. On page 369 of the opinion, Spear, C. J., says:

“It is conceded that an assignment of a part of a debt cannot be enforced at law unless assented to by the debtor. This principle is held in Mandeville v. Welch, 5 Wheat., 277, opinion by Mr. Justice Story. The reason is that it might subject the debtor to a multiplicity of suits at the instance of each assignee of separate portions of the debt; * * # it would be impossible in a court of law, to protect the rights of all the parties. The principle is universally recognized, and has been applied in many adjudicated cases.”

That the latter statement is true is evidenced by the note in 80 A. L. R., 413. In Pennsylvania Co. v. Thatcher, 78 Ohio St., 175, 85 N. E., 55, paragraph one of the syllabus, the Volkert decision was approved and followed. However, in both the Volkert and Thatcher cases it was recognized that such partial assignment may be made effective in a suit, in equity where all persons interested in the fund are before the court as parties and their rights can be determined and protected in the one suit.

Even if this branch of this cause be treated as one in equity, the absence of the beneficiary, the real party in interest and the one who would suffer by the deduction of plaintiff’s $1,000 from the insurance money, makes it impossible to protect the insurance company against an action by the beneficiary who would not be barred by any sort of a judgment herein. In this respect it is similar to the Thatcher case, supra, where a real party in interest was not before the court.

This principle decisively precludes the plaintiff’s recovery in this action of any relief from the insurance company, and hence, without discussion or decision of the other questions raised in the pleadings and argument, the judgment must be affirmed.

Judgment affirmed.

Overmyer and Lloyd, JJ., concur.


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

text:
    In re Burch.
    (No. 3571
    Decided October 13, 1943.)

      Mr. Clyde F. Beery, Mr. Robert Guinther and Mr. C. G. Roetsel, for appellant, Frank B. Burch.

      Mr. Carl M. Myers, Mr. Clarence Becker and Mr. Kenneth B. Baker, prosecuting committee, for appellee.
   Stevens, P. J.

By an amended statement of charges prepared and filed by a committee of the bar, Frank B. Burch was charged as follows:

“Now come * * *, and do hereby submit, file and charge against said Frank B. Burch the following matters:

“1. That Frank B. Burch has been convicted of a crime involving moral turpitude as follows:

“On October 14, 1941, in the District Court of the United States for the District of Columbia, said Frank B. Burch entered an unqualified plea of guilty to an indictment (a copy of such indictment being attached heieto and made a part hereof, marked Exhibit A) charging him with knowingly and wilfully committing a felony against the United States in that he acted as public relations counsel, agent, representative, and attorney for, and received compensation from, the government of the German Reich, without filing the registration statement required by the Act of August 7, 1939.

“2. That Frank B. Burch has been guilty of misconduct and unprofessional conduct in office involving moral turpitude as follows:

“In the period from January 1, 1940, to July 15, 1941, or thereabouts, as agent and attorney for the government of the German Reich, he accepted funds from a consul of said government for the purpose of promoting the political interests of said government by distributing and disseminating certain pamphlets, books and other literature clandestinely, and in a manner , designed to conceal from the recipients thereof, and all other persons, his true identity and the identity of the said government, which acts, and others, are more specifically set forth in Exhibit A attached hereto and made a part hereof. Said acts and conduct, performed in behalf of the government of the German Reich, were inimical and in opposition to the interests of the United States of America and in particular the promotion of the defense of the United States of America.

“3. That Frank B. Burch has been guilty of mis: conduct and unprofessional conduct in office involving moral turpitude, as follows:

“That in an investigation of his activities by the federal grand jury, held at Washington, D. 0., in September, 1941, the said Frank B. Burch, when called as a witness before said grand jury, obstructed justice, and failed to assist the government officials in eliciting the truth in the matter then under consideration by the grand jury — (a) by withholding pertinent facts within his knowledge until confronted by written or documentary evidence of such facts; (b) by failing to produce exhibits called for by subpoena duces tecum issued by the United States District Court for the District of Columbia, which exhibits were within his possession, and destroying correspondence; (c) by denying the nature and extent of his correspondence with Dr. Kapp until confronted with the letters revealing such correspondence; (d) by denying the preparation and forwarding of mailing lists to Dr. Kapp until confronted by the letters showing that he had done so.

“ Said [committee members] pray this honorable court for an order fixing the time for hearing the matters herein complained of, and upon final hearing thereof that an order be entered suspending or removing the said Frank B. Burch as an attorney at law from all courts of record of the state of Ohio, or reprimanding said-Frank B. Burch, all as provided by Section 1707 of the General Code of the state of Ohio, and for such other and further orders herein as the court may deem advisable in the premises.”

These charges, it will be observed, were in part predicated upon Burch’s conviction, in the United States District Court for the District of Columbia, of wilful failure to file the registration statement required by the Act of Congress of June 8, 1938, as amended August 7, 1939, pertaining to registration where one acts as agent of a foreign principal; and in part upon alleged failure, when appearing before the federal grand jury, to disclose facts, to produce certain exhibits, correspondence and lists alleged to have been required to be produced by subpoena- du,ces tecum, and by destroying certain correspondence.

It seems fair to state, in view of the objections made by counsel for Burch at the outset of the hearing, that the charges made by the committee were ordered to be filed by the same jurists who sat in judgment upon the accused.

Disbarment proceedings, under the Ohio law, are governed by Section 1707, General Code, which is in part as follows:

“The Supreme Court, Court of Appeals or Court of Common Pleas may suspend or remove an attorney at law [from office] or may give private or public reprimand to him as the nature of the offense may warrant, for misconduct or unprofessional conduct in office involving moral turpitude, or for conviction of a crime involving moral turpitude. * *

After a very full hearing before a court composed of six Common Pleas judges, a judgment of disbarment was entered against Burch.

It is from that judgment that the instant appeal on questions of law has been taken.

We may here state that the entire record, including the exhibits, has been read by the court, and from that reading, and independent study, certain conclusions of the court have emerged with crystal clarity.

This proceeding naturally divides itself into two branches: First, that dealing with the defendant’s conviction of a crime alleged to involve moral turpitude; and second, that involving alleged misconduct or unprofessional conduct in office, involving moral turpitude.

As to the first branch: Did the offense to which Burch pleaded guilty involve moral turpitude?

The Act of Congress (Section 2 of the Act of June 8, 1938, as amended August 7, 1939, Section 612, Title 22, of the Federal Code) which requires the filing of a registration statement and specifies what such statement shall contain, does not indicate the purpose of the act, nor does a reading of the act in its entirety disclose in terms the end sought to be attained by its enactment. The court is therefore at liberty to attach to the wording of the act such reasonable purpose as its contents and the circumstances existing at the time of its enactment seem to indicate.

To us it seems apparent that the act is political in character, and regulatory in purpose.

The failure of Burch to register as the agent of a foreign principal, which he concededly was,-did not contravene any accepted code of morals, nor did it manifest inherent baseness or vileness of principle, or depravity. It was merely a failure to comply with a political regulatory enactment, which in no sense dealt with questions of morality.

Webster’s New International Dictionary (2 Ed.), defines “turpitude” as “Inherent baseness or vileness of principle, words, or actions; depravity. ” “ Moral, ’ ’ used in such connection, is defined as “4. Pertaining to character, conduct, intentions, social relations, etc.” And the legal term “moral turpitude” is defined as “The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.” These are precisely the definitions which have been used by the courts in defining “moral turpitude.”

The definition given in 2 Bouvier’s Law Dictionary, Rawle’s Third Revision, page 2247, is as follows:

“Moral Turpitude. An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”

The moral turpitude that may be involved in the commission of a crime does not exist merely because there has been a crime committed — a mere violation of law — on the theory that it is immoral to violate any law. The use of the term “moral turpitude” in our statute providing for disbarment (Section 1707, General Code) clearly contemplates something more than conviction of a crime; otherwise the use of the words would be the introduction of mere surplusage into the statute.

If a crime is one involving moral turpitude, it is because the act denounced by the statute offends the generally accepted moi’al code of mankind.

In a disbarment proceeding based upon conviction of a crime, where the nature of the crime is not such as plainly and unquestionably offends the generally accepted moral code, evidence as to all the circumstances of the crime, including the actor’s knowledge and intention, is admissible, even though he has pleaded guilty; and, likewise, evidence is admissible as to the circumstances under which such plea was entered.

The record in this case covers very fully all of the activities of Burch in connection with the transactions involved in his prosecution, and we are unable to comprehend wherein his failure to register as the agent of a foreign principal contravened any mandate of a moral code with which any of the members of this court are familiar.

The charge that Burch acted “with the purpose of promoting the political interests of the German Reich” is just not true; on the contrary, the evidence conclusively establishes that he was trying to promote the interests of the United States and was seeking the same end as millions of other honest and patriotic citizens of this country.

No law forbade what he did. The only wrong-charged against him was, that by reason of his relations with the German consul, he should have registered. Had he done that, no act of his was of such character as could not have been lawfully performed by any American citizen.

Such failure to register had in it no element of moral turpitude.

It is our unanimous conclusion that the crime of which he stands convicted, was not one involving moral turpitude, and hence furnishes no basis for disbarment; and in finding that said crime was “a felony which in all the circumstances involved moral turpitude/’ the Court of Common Pleas erred to the prejudice of the appellant.

As tt the second branch of the charge: Was the conduct and testimony of Burch in his appearance before the federal grand jury “misconduct or unprofessional conduct in office involving moral turpitude”?

We might here state that, after having read the testimony taken before the federal grand jury, the members of this court are all of the belief that that proceeding more nearly approached the character of a political inquisition, than an orderly investigation before an examining body. Almost no phase of the accused’s personal, professional or political activities or life was immune from searching, sarcastic and impertinent inquiry by the government attorneys, although in the investigation the only pertinent question was, Did Burch act as the agent of a foreign principal? — a fact which he readily admitted.

If the record which the Supreme Court of the United States had before it in the case of Vierick v. United States, 318 U. S., 236, 87 L. Ed., 529, 63 S. Ct., 561 (which, as we understand, was prosecuted by one of the attorneys who examined Burch), showed such conduct on the part of the government attorney as appears in the transcript before us, then we can well understand the merited rebuke to said attorney contained in the opinion of Mr. Chief Justice Stone.

To warrant disbarment of an attorney under our statute, the evidence must show that his misconduct or unprofessional conduct was “in office”; in other words, his misfeasance or malfeasance must have been in his capacity as an attorney.

Was Burch acting professionally as an attorney when he appeared before the federal grand jury as a defendant in response to a subpoena?

We believe not. His appearance there was under coercive process, he represented no one but himself, and in so doing he accomplished no outstanding performance in preserving rights guaranteed to him by the federal Constitution.

In times of stress and strong emotion engendered by the war and its inevitable consequences, it is of primary importance that the scales of justice remain in balance, unweighted by other than the calm, dispassionate judgment of the courts, reached after proper consideration of the law and the evidence, and uninfluenced by extraneous matters.

It is to the courts that the people must look for the preservation of those rights which are constitutionally theirs, provided for them by farsighted forebears.

As we view this record, there was nothing which Burch did, which any high-principled, patriotic American might not lawfully have done, except his failure to register as the agent of a foreign principal. Had he so registered, no act of his would have come within the proscription of the law, nor would it have contravened the moral code.

As to contradictory statements, we are astounded that, in the face of the type of inquiry to which he was subjected, he told so thoroughly consistent a story. Minor and inconsequential inconsistencies there were, to be sure, but in the main, and as to important points, there was no material variance.

We conclude that, on no. charge made against Burch in this disbarment proceeding, did the evidence warrant a finding of guilt.

The judgment is reversed, and the charges are ordered dismissed.

Judgment reversed.

Washburn and Doyle, JJ., concur.

Washburn, J.,

concurring. I fully concur in the foregoing opinion, but it does not seem to be improper for me to express some additional personal observations, as follows:

The pamphlets circulated by Mr. Burch were copies of speeches and documents which were being circulated by many genuinely patriotic organizations of American citizens. In most part the pamphlets consisted of copies of speeches by senators and other public men, articles published and freely circulated in American-published magazines, and printed matter taken from the Congressional Record; they contained no matter that any citizen of the United States was not privileged to express and advocate, and the articles were designed to keep us from entering the war. At that time we were not at war, and a citizen who did not want the United States to get into war was not a traitor.

Mr. Burch unquestionably had a constitutional right to try to influence public sentiment against war, and to do each and every thing which the record shows he did do, including, so far as the law was concerned, a right to accept money from the German consul to assist in furthering his own efforts to keep us out of war. I do not approve of his exercising this latter right, but the propriety of doing so is a matter of opinion and is not a violation of law nor a matter for which he could be called to account in a disbarment proceeding.

What Mr. Burch did made him technically an agent of the German consul, and his failure to register was a violation of the law requiring him to do so. Notwithstanding- his plea of guilty, he had a perfect right, in a disbarment proceeding, to establish, if he could, that he did not know that there was any such law, and, if he succeeded in establishing that fact, there was no moral turpitude in his act which would make him subject to disbarment for the violation of such law; and in my judgment he fully established his nonknowledge of the existence of that law, and that the circumstances under which his plea of guilty was made, which are fully shown by the record, did not deprive him of the benefit of such nonknowledge in determining the existence or nonexistence of moral turpitude in the disbarment proceeding.

Doyle, J.,

concurring. The offense to which Mr. Burch pleaded guilty is generally known as a political crime. It is mal/um prohibitum and not malum in se. It cannot under any fair legal construction come within the term “moral turpitude” as that term is used in the disbarment statute.

The activities of the appellant which formed the basis of the disbarment proceedings occurred before this country’s entrance into the war, and while the United States was at legal peace with the nations of the world.

It must be at all times rémembered that the right of free speech is a guarantee embodied in the Constitution of the United States. And while this writer vigorously dissents from some of Mr. Burch’s political views and activities as revealed by the record, nevertheless his right to express his views must be respected by the courts so long as his activities do not contravene the laws of the state and nation. This record does not reveal any such contravention.


text:
    Dick, Admx., Appellant, v. Bauman et al., Appellees.
    (No. 406
    Decided June 21, 1943.)

      Mr. Harry E. Gam and Mr. R. A. Hunsinger. for appellant.

      Mr. A. L. Hyser and Mr. G. A. Culbert, for appellees.
   Carpenter, J.

When Shakespeare’s King Lear was about to divide his property among his three daughters he assigned as the reason that he might “unburthen’d crawl toward death.”

Men and women have been doing this since human history began, and Harry Lilley’s case, which is here on appeal on questions of law and fact, is not an unusual one.

Twice a widower, with three children by the first marriage, in 1930 he married Anna Stine, a childless widow. On May 31, 1941, they were both aged and in poor physical health and her mind impaired so much that she was that day adjudged an incompetent and a guardian of her person and estate was appointed.

On June 4, 1941, Mr. Lilley, by warranty deed, conveyed all of his real estate to his three children and assigned to them his bank accounts, about $1,500. This was all the property he possessed and he had no creditors.

On November 15, 1941, Harry Lilley died. Anna Lilley died intestate February 8, 1942, and plaintiff, Catherine Dick, was appointed administratrix of her estate. As such, she brought this action alleging that the Lilley deed was given without consideration and was “a fraud on the marital rights” of her decedent. She prayed that it be set aside, that the property be sold and that she be given her decedent’s distributive share, year’s support, exemptions and other claims against the proceeds as property of the estate of Harry Lilley.

The answer denied that the deed was without consideration, and alleged that on the grantor’s death his widow “became endowed with an estate for life in one-third of said real estate,” hut that “upon her death (she) lost any right or claim that she might have had therein. ’ ’ The only consideration proven was the subsequent oral promises of the grantees to see that the grantor and Ms wife were cared for as long as they lived.

While the Probate Code Act of 1932 enlarged the share of a surviving spouse in the real estate of the one predeceased in lieu of the former dower, it placed no new restraints upon the rights of one in life to dispose of his or her property, and only preserved to the survivor a vested dower estate in any lands conveyed during the marriage in which such survivor had not relinquished or been barred of dower. (Section 10502-1, subdivision (a), General Code), and if conveyance was made in fraud on the survivor, only a dower interest remains (Section 10502-6, General Code). Newman v. Dore, 275 N. Y., 371, 9 N. E. (2d), 966, 112 A. L. R., 643, and note following. In Ward v. Ward, 63 Ohio St., 125, 57 N. E., 1095, and other decisions cited by plaintiff, it was only the unrelinquished dower interest that was protected.

Section 10509-54, General Code, provides for the twenty percent exemption right, and Section 10509-74, General Code, makes provision for the year’s support of a widow, but these only contemplate payments from the estate of the husband, and no right to either arises until his death leaving an estate. Lockwood v. Krum, 34 Ohio St., 1. They were not debts of Harry Lilley on June 4, 1941, when the deed was executed and delivered.

The dower interest Anna Lilley had in the real es-' tato in question was a personal right to her which she could have asserted during her lifetime. That this did not survive to her estate is indicated by Section 12008, General Code, in the chapter on assignment of dower, which provides in part:

“When a plaintiff dies before the assignment of dower, or before.entry of the final judgment, the action may be revived in the name of the executor or administrator. The court shall proceed to hear and determine, if not before decided, whether the plaintiff was entitled to dower in such action. If found so entitled, it shall adjudge in favor of such executor or administrator a sum equal to one-third of the rental value of the real estate in which the plaintiff was entitled to dower, from the filing of the petition until death * * V’

As Anna Lilley in her lifetime did not sue to have her dower assigned, no part of her right to it survived to her estate.

The petition is dismissed at the cost of the plaintiff.

Decree accordingly.

Lloyd and Stuart, JJ., concur.


author: Hornbeck, J.

text:
    In re Griffin.
    (No. 1756
    Decided March 22, 1943.)

      Mr. Benjamin Horn, for appellee.

      Mr. J. H. Patricoff, for appellant. •
   Hornbeck, J.

This cause was submitted on motion of Elizabeth Griffin, mother of Marie Anna Mae Griffin, to dismiss the appeal for the following reasons:

(1) That the Court of Appeals is without jurisdiction to grant or hear an appeal in the above matter.

(2) No appeal can be taken from the order of the Juvenile Court made in this matter.

(3) The appeal has not been properly approved.

(4) Good cause has not been shown and neither have the motion and notice to the prosecuting attorney been served for such appeal, nor has the motion been allowed by the court.

For all practical purposes, grounds Nos. 1 and 2 may be combined as may grounds 3 and 4, and we discuss them jointly. Counsel for the motion cites Section 1639-51, General Code, which, among other things, provides that as to prosecution of adults under the Juvenile Court Code, appeals on questions of law7 may be taken to the Court of Appeals of the county in which the proceeding originated. Then there follows this language:

"An appeal shall not be taken to the Court of Appeals except upon good cause shown, upon motion and notice to the prosecuting attorney, as in civil cases, or unless such motion is allowed by such court.”

No motion for allowance to appeal has been filed in this court and, of course, no notice has been given to the prosecuting attorney.

If this is an appeal under the Juvenile Court Code by an adult such procedure is prerequisite to the taking of the appeal to this court. It appears from the transcript of docket and journal entries and the bill of exceptions that this is not an appeal from a prose-ration of an adult under the Juvenile Court Code and therefore the statute has no application.

It appears that in February 1942, complaint was filed in the Juvenile Division of the Court of Common Pleas of Montgomery county, Ohio, by Mary E. Kramer, supported by affidavit charging that Marie Anna Mae Griffin was a dependent child then in the custody of her mother, Elizabeth Hampton Griffin. Paul Kenneth Griffin was stated to be the father of such child, residing at Jep Hill, Kentucky. Thereafter, citation was issued for the mother and the child and a citation was issued to the father at the address given in the affidavit. Later, it appearing by affidavit of Mary E. Kramer, that the residence of Paul Kenneth Griffin was unknown, that his last known place of residence was Jep Hill, Kentucky, and that citation could not be served upon him, it was ordered that he be served by publication by virtue of Section 1639-25, General Code. It appears that such publication was carried in the Daily Court Reporter for the requisite period of time.

On March 10, 1942, the Juvenile Court made two orders; it is probable that chronologically the orders were made in reverse order from that in which they appear in that transcript: One was an adjudication that such minor is a dependent child and temporary custody was given to Mrs. Elizabeth Hampton Griffin; the other order awarded the exclusive custody of such minor child to Elizabeth Griffin, the mother of the child.

Thereafter, on July 25, 1942, Paul Kenneth Griffin by his counsel filed a motion to vacate previous orders and to dismiss proceedings. This application, reciting the former orders of the court, stated that all proceedings were illegal and contrary to law and that the applicant had no notice of such proceedings and no opportunity to be heard before any orders were made in the cause. It asserts that the minor child was not and is not a dependent child, and prays that all previous orders made in the case awarding the custody of the child to its mother be vacated and set aside, and that all proceedings therein be dismissed for the reason that they are void.

The matter came on for hearing upon the motion and at the inception thereof this appears in the bill of exceptions:

“By the Court: Let the record show that at a conference of the attorneys with the court, in chambers, it has been agreed and stipulated that the sole issue at the hearing today is whether this court did or did not have the jurisdiction to hear, decide and make the order made herein on March 10, 1942. ’ ’

We have heretofore directed attention to the fact that there were two orders made on March 10, 1942, but we are of opinion that the -motion was directed particularly to the order awarding the custody of the dependent child because the court had no jurisdiction to make such order.

On December 8,1942, the motion to vacate was overruled and on December 14, 1942, notice of appeal was filed from the order rendered December 8, 1942. The notice continued: “Said appeal is on question of law attacking the jurisdiction of said court in rendering-previous orders therein and declaring said child a dependent child”. That is to say, the appeal attacks the judgment on two grounds: (1) Want of jurisdiction in the court to enter any order; and (2) in adjudging that the minor was a dependent child. We have held in the case of Baker v. State, 17 Ohio Law Abs., 384. that an order adjudging a minor to be a dependent or delinquent child is not appealable.

The case of In Matter of Hayes, 62 Ohio App., 289, 23 N. E. (2d), 956, in the second paragraph of the svllabus (opinion by Geiger, P. J.), asserts that the order adjudging a minor to be a delinquent child is a final order and it does not affect the question as to the right of an adult to prosecute appeal from that order.

We now have the question clearly made by the motion in this case and it is whether the proceeding which it is sought to review here may be classified as a prosecution of an adult under the Juvenile Court Code and specifically under Section 1639-51, General Code, and whether, therefore, the father, the adult, may appeal from the order.

If the proceeding sought to be lodged in the Domestic Relations Court and the restricted purpose of the hearing as defined by the court relate only to the jurisdiction of the court to make an order respecting the dependency of the minor, then we are of opinion that the appellant misconceived his remedy in the lower court and in this court. It is an anomalous situation for a court which has pronounced a judgment or final order, thereafter, without any specific statutory authority being invoked, to entertain a motion, the determination of which presents but one question, namely, did the court have jurisdiction to enter the former order.

If the court had no jurisdiction whatever of the person or the subject matter, then the order was void and could have been tested by habeas corpus proceedings wherein the sole question for consideration would be the jurisdiction of the court to make the order.

The motion to dismiss the appeal will be sustained.

Motion sustained.

Barnes, P. J., and Geiger, J., concur.


author: Guernsey, P. J.

text:
    The State of Ohio, Appellee, v. Houser, Appellant. (Three cases.)

      (Nos. 453, 454 and 455
    Decided April 7, 1942.)

      Mr. Harlan F. Burket, assistant prosecuting attorney, for appellee.

      Mr. W. S. Snook, for appellant.
   Guernsey, P. J.

These are separate appeals upon questions of law, from separate judgments of the Common Pleas Court of Hancock county, Ohio, in separate actions therein, each based upon a separate indictment returned by a grand jury of such county, wherein the appellee, the state of Ohio, was plaintiff, and the appellant, Bruce Houser, was defendant.

By stipulation of the parties filed in each of the cases, the three cases were tried and submitted together to the court and a jury, and separate verdicts returned, separate judgments entered upon the verdicts, and separate appeals taken, and all the testimony, evidence and exhibits introduced at the trial embodied in one bill of exceptions bearing the title of each of the cases and filed in each case.

The judgments appealed from were of conviction and sentence entered upon the separate verdicts of the jury finding the defendant guilty as charged in the respective indictments upon which the respective actions are based.

Cause number 453 in this court is an appeal from the judgment in cause number 4783 in the Common Pleas Court based on an indictment charging the defendant with a violation of the provisions of Section 6370, General Code.

Cause number 454 in this court is an appeal from the judgment in cause number 4784 in the Common Pleas Court based on an indictment charging the defendant with a violation of the provisions of Section 6371, General Code.

Cause number 455 in this court is an appeal from the judgment in cause number 4785 in the Common Pleas Court based on an indictment charging the defendant with a violation of the provisions of Section 6373, General Code.

The defendant filed, 'in cause number 4783 in the Common Pleas Court, which cause is now designated as number 453 in this court, a motion for a new trial, setting forth various grounds therefor, in the caption of which motion the numbers of all three cases in the Common Pleas Court, to wit, 4783, 4784 and 4785 are set forth. The clerk of courts noted on the appearance docket the filing of this motion in cause number 4783, and in causes numbers 4784 and 4785 made a notation on the appearance docket, “See papers filed in number 4783.”

The Common Pleas Court considered such filing as equivalent to the filing of a separate motion for a new trial in each of the cases, and overruled the same.

The defendant assigns error in each of the cases, in the following particulars:

1. The court erred in overruling the defendant’s plea in abatement.

2. The court erred in overruling defendant’s motion to quash the indictment filed in the case after defendant’s plea to the indictment.

3. The court erred in overruling defendant’s demurrer to the indictment.

4. The indictment found by the grand jury is illegal and is in violation of the Constitution of Ohio and deprived the defendant of his constitutional rights and guaranties.

5. The offense which is charged and stated in the indictment is not such an offense as is indictable under the Constitution of the state of Ohio and the statutes.

6. The court erred in refusing to exclude all evidence from the consideration of the jury at the beginning of the trial.

7. The court erred in overruling defendant’s motion for a directed verdict of not guilty.

8. The court erred in refusing to give defendant’s requested instruction before argument to the jury.

9. The court erred in refusing to include and give in the court’s general charge to the jury, the defendant’s request to charge.

10. The court erred in overruling defendant’s motion in arrest of judgment.

The plaintiff has filed a motion in this court to dismiss the appeals in causes numbers 454 and 455 upon the ground that the defendant did not file motions for new trials in such causes, and upon the theory that the filing of such a motion for a new trial is a condition precedent to an appeal from a judgment of conviction in a criminal action.

While no paper writing designated as a separate motion for a new trial was actually filed by the defendant in causes numbers 4784 and 4785 in the Common Pleas Court, the captioning of the paper writing designated as and constituting a motion for a new trial with the numbers of the three causes, 4783, 4784 and 4785, with the reference on the appearance docket in causes numbers 4784 and 4785 to the paper writing filed in cause number 4783, constituted a substantial compliance with tbe requirements of law with reference to tbe filing of motions for new trial and tbe filing of such motion in each case, so that the ground stated for dismissal of the appeal is without merit.

Furthermore, there is not incorporated in the assignments of error any assignment to the effect that the verdict is not sustained by sufficient evidence, or any assignment based on misconduct of the prevailing-party, or accident or surprise which ordinary prudence could not have guarded against, or newly discovered evidence, for the review of which the overruling of a motion for new trial based on any of such grounds is a condition precedent, and all the assignments of error are such that they are subject to review irrespective of whether a motion for new trial has been filed and overruled. Searles v. State, 6 C. C., 331, 3 C. D., 478; 2 Ohio Jurisprudence, Appeal and Error, pages 263, 264, 269, 270, 271; Weaver v. Rd. Co., 55 Ohio St., 491, 45 N. E., 717; Bauer v. Heaton, 68 Ohio App., 181, 38 N. E. (2d), 413; Travelers’ Indemnity Co. v. M. Werk Co., 33 Ohio App., 358, 169 N. E,, 584.

For the reasons mentioned the motion to dismiss the appeal in causes numbers 454 and 455 will be overruled.

We will now.proceed to a consideration of the assignments of error.

As assignments of error numbers one, two, three, four, five and ten are argued together, they will be considered together.

The sections of the General Code prescribing the separate offenses charged in the separate indictments are as follows:

“Section 6370. A person purchasing, selling, exchanging- or receiving second-hand articles of any kind, scrap-iron, old metal, canvas, rope, branded bottles, junk or lead pipe, except plow irons, old stoves and furniture, shall post in a conspicuous place in or upon his shop, store, wagon, boat or other place of business, a sign having his name and occupation legibly inscribed thereon, and keep a separate book, open to inspection by a member of a police force, city marshal, constable or other person, in which shall be written, in the English language, at the time of the purchase or exchange of such articles, a description thereof, the name, description and residence of the person from whom purchased and received, and the day and hour when such purchase or exchange was made. Every entry shall be numbered consecutively, commencing with number one.’'’

“Section 6371. Such articles so purchased or exchanged, as provided in the next preceding section, shall be retained by the purchaser thereof, for at least thirty days before disposing of them, in an accessible place in the building where such articles are purchased or received. A tag shall be attached to such article in some visible and convenient place, with the number written thereupon corresponding to the entry number on such book. Such purchaser shall prepare and deliver each day to the mayor of the city in which such business is carried on, before twelve o’clock noon, a legible and correct copy, written in English, from such book containing a description of each article-purchased or received during the preceding day, the hour at which the purchase was made and a description of the person from whom it was purchased.”

“Section 6373. No person shall purchase or receive by sale, barter, exchange or otherwise, an article mentioned in this chapter, of a minor or apprentice, knowing or having reason to believe him to be such, or from any person between the hours of nine o’clock p. m. and seven o’clock a. m.”

The penalty for the violation of these several sections is prescribed by Section 13398, General Code, which reads as follows:

“Section 13398. Whoever violates any provision of sections 6370 to 6373 inclusive of the General Code, shall be fined not less than twenty-five dollars nor more than one thousand dollars and the costs of prosecution, and upon the default of payment of fine and costs shall be committed to the jail of the county or to some workhouse and there be confined one day for each dollar of fine and costs against him.”

In his brief herein filed, the defendant, in support of these assignments of error, contends:

1. That prior to the return by the grand jury of the indictments upon which the defendant was tried and convicted, affidavits were filed in the mayor’s court of the city of Findlay, Hancock county, Ohio, which has no police court, charging the defendant with the commission of the offenses charged in the several indictments, and the defendant was arrested on warrants issued on such affidavits and brought before such may- or’s court where he entered a plea of not guilty to the offense charged in each affidavit, and demanded a jury trial which was refused and he was held to answer to the grand jury of such county.

That the offense charged in each of the indictments is a misdemeanor not punishable by imprisonment, and as the accused is not by the Constitution entitled to trial by jury, the mayor of the city of Findlay, which has no police court, had exclusive jurisdiction under the provisions of Section 4528, General Code, to hear and determine any prosecution therefor.

2. That the mayor’s court is an inferior court of limited jurisdiction and may not in general assume a power by implication but must remain within the limits of the powers granted, and exercise such powers in the mode prescribed. 21 Corpus Juris Secundum, 446, 447, Courts, Section 244.

That in misdemeanor cases in which final jurisdiction is conferred on the mayor’s court by the provisions of Section 4528, General Code, such jurisdiction must be exercised in the mode prescribed by law, that is, by voluntary dismissal of the complaint or by hearing the complaint and either acquitting or convicting and sentencing the accused, and does not comprehend the power to bind the accused over to the grand jury to answer. 22 Corpus Juris Secundum, 186, 187, Criminal Law, Section 111; also Section 165, at page 261.

That if the jurisdiction of the mayor’s court over the offenses charged in the indictments is not exclusive but is concurrent with the jurisdiction of the Common Pleas Court, once jurisdiction of the mayor’s court of the person and subject matter attaches it continues until final determination of the case in the mode prescribed by law. 22 Corpus Juris Secundum, 186, 187, Criminal Law, Section 111; also Section 165, at page 261.

And an order entered by the mayor’s court in such a case binding the accused to the grand jury to answer, is void and leaves the case pending in such court. State v. Raaf, 16 Idaho, 411, 101 P., 747.

As prosecutions of the offenses charged in the several indictments were pending in the mayor’s court of the city of Findlay at the time of the return of the indictments and trial thereof, the grand jury was precluded from exercising its jurisdiction to indict and the Common Pleas Court was precluded from exercising its jurisdiction to try the defendant on the indictments.

Section 4, Article IV of the Constitution prescribes:

“The jurisdiction of the Courts.of Common Pleas, and of the judges thereof shall be fixed by law.”

Section 13422-5, General Code, provides:

“The Court of Common Pleas shall have original jurisdiction of all crimes and offenses, except in cases of. minor offenses, the exclusive jurisdiction of which is vested in courts inferior to the Court of Common Pleas.”

Section 4528, General Code, which is one of the sections of Chapter 1, Subdivision II [III] of Division V of Title XII of the General Code, relating to the jurisdiction of mayor, prescribes as follows:

“He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the Constitution, entitled to a trial by jury, and his jurisdiction in such cases shall be coextensive with the county, and in keeping his dockets and files, making report to the county auditor, disposing of unclaimed monies, and in purchasing his criminal docket and blanks for state cases, shall be governed by the laws, pertaining to justices of the peace.”

It is the contention of the defendant that the term “final jurisdiction” in Section 4528, General Code, is the equivalent of “exclusive jurisdiction” as used in Section 13422-5, General Code, and that the grant of final jurisdiction to the mayor was an exclusion of such cases from the general jurisdiction of the Common Pleas Court.

The use of the word “final” to describe the jurisdiction of the mayor’s court is not sufficient to preclude the general original jurisdiction of the Common Pleas Court as granted by Section 13422-5, General Code. That section, when read in the light of Section 13436-5, General Code, which invests the Common Pleas Court with general authority, through the grand jury, “to inquire of and present all offenses committed within the county,” is so expressive of an intent on the part of the Legislature to vest such jurisdiction in the Common Pleas Court that it cannot lightly be disregarded. The jurisdiction so clearly granted cannot be taken away by an inference or implication. Small v. State, 128 Ohio St., 548, 192 N. E., 790.

The fact that the offense charged was of such a character that the accused had no constitutional right to trial by jury did not preclude the Legislature from providing for a jury trial for the accused upon such charge.

The Common Pleas Court, therefore, had concurrent jurisdiction with the mayor’s court, of the offenses charged in the indictments, and defendant’s first contention under these assignments of error, that the Common Pleas Court was without jurisdiction, has no basis in law.

In order to pass upon defendant’s second contention with reference to this assignment of error it is necessary to consider the state of the record before us relating to this contention.

'The plea in abatement filed in each case, omitting the caption, signature and affidavit thereto, and omitting the number of the section of the General Code, the violation of which is charged, is in the words and figures following, to wit:

“Now comes the said Bruce Houser, in his own proper person and, having heard the aforesaid indictment read, says that he ought not be charged on said indictment and the state of Ohio ought not further to proceed and to prosecute said indictment against him because he says that Section --of the General Code of Ohio does not define or declare an offense against the state of Ohio which could be prosecuted by indictment as a crime or misdemeanor for any alleged violation thereof.

“The affidavit filed in the mayor’s court of the city of Findlay, on which the indictment is based does not charge the said defendant with any alleged offense that constitutes a crime or misdemeanor that an indictment could be brought against the defendant, certified to this court by the mayor’s court as in this case.

“Wherefore he prays judgment that he the said Bruce Houser may be dismissed and discharged from said indictment and that the same be quashed.”

The motion to quash the indictment in each case is based on two grounds: (a) That the indictment is improper and illegal and the court has no jurisdiction to try the defendant or place him on trial before a jury; and (b) that no offense is charged in the indictment for which a legal indictment could be found.

The demurrer to each indictment is on the ground that the indictment does not state facts constituting a crime against the state of Ohio, charging a felony of an indictable misdemeanor punishable by the state of Ohio.

The motion in arrest of judgment is based on the following grounds:

“1. That the facts stated in the indictment [do] not constitute an offense under the laws of the state of Ohio.

“2. That the offense charged in the indictment is not within the jurisdiction of the court because the grand jury which found the indictments had no legal authority to inquire into the offense charged.

“(a) That said indictments are irregular, insufficient and illegal in that the offense charged in said several indictments is not indictable under the laws of the state of Ohio.

“ (b) That the defendant was forced to trial under the indictments and deprived of his constitutional rights and guaranties. That said trial was irregular and illegal and defendant’s conviction was irregular and illegal.”

Section 13439-7, General Code, prescribes that,:

“Plea in abatement may be made when there is a defect in the record shown by facts extrinsic thereto.” Section 13439-6, General Code, prescribes:

“A motion to quash may be made when there is a defect apparent upon the face of the record, within the meaning of the provisions of the chapter relating to the indictment, form and sufficiency thereof, including defects in the form of indictment and in the manner in which an offense is charged.”

Section 13437-28, General Code, among other things, provides:

“No indictment * * * shall be quashed, set aside or dismissed, or motion to quash be sustained, * * * on account of any. defect in form or substance of the indictment * * *, unless the objection to such indictment * * * specifically stating the defect claimed, be made prior to the commencement of the trial, or at such time thereafter as the court shall in its discretion permit.”

Section 13439-9, General Code, provides:

“The accused may demur when the facts stated in the indictment do not constitute an offense punishable by the laws of this state, or when the intent is not alleged and proof thereof is necessary to make out the offense charged, or when it appears on the face of the indictment that the offense charged is not within the jurisdiction of the court.”

Section 13450-1, General Code, prescribes:

“A judgment may be arrested by the court upon motion of the defendant, or on the court’s own motion, for either of the following causes:

“1. That the offense charged is not within the jurisdiction of the court;

“2. That the facts stated in the indictment or information do not constitute an offense.”

An examination of each of the indictments discloses that each indictment correctly charges an offense under the section of the General Code upon which it is based, and, as we have heretofore set forth, the offense charged in each of the indictments is an offense of which the grand jury had cognizance, and the Common Pleas Court had jurisdiction, which disposes adversely to the contention of defendant, of all questions raised by the plea in abatement, motion to quash, demurrer, and motion in arrest of judgment, except the general contention of defendant, hereinbefore mentioned, that prosecutions of the offenses charged in the several indictments were pending in the mayor’s court of the city of Findlay at the time of the return of the indictment and the trial thereof, precluding the exercise of the jurisdiction of the grand jury to indict and the exercise of the jurisdiction of the Common Pleas' Court to try the defendant on such indictments.

There is no bill of exceptions of the hearing had on the plea in abatement, and as shown by the bill of exceptions taken on the trial in the Common Pleas Court in the actions there are no facts in evidence on the trial of such cause tending to prove that any affidavits, were filed in the mayor’s court of the city of Findlay charging the defendant with the commission of any of the offenses charged in any of the indictments, or that any prosecution of the offenses was pending in the mayor’s court at the time the indictments were returned or trial had thereon, and nothing appears on the face of any of the indictments indicating in any way that they were predicated on any affidavits filed in the mayor’s court of the city of Findlay, or on any prosecution in the mayor’s court for the offenses charged in such indictment.

If the plea designated as “plea in abatement” is considered as designated, it must be considered as pleading facts extrinsic of the record which necessarily must be proved by evidence adduced at the hearing of such plea.

As there is no bill of exceptions of the hearing on snch plea it must be presumed that the facts before the court on such hearing warranted the court in overruling the plea.

On the other hand, if the plea, although designated a plea in abatement, constitutes a motion to quash, it reaches only such defects as are apparent on the face of the record.

However, an examination of the so-called plea discloses that it does not specifically charge that an affidavit charging the defendant with the same offense he is charged with in the indictment, was filed in the mayor’s court of the city of Findlay, or that the defendant was arrested upon a warrant issued by such court upon such affidavit, or that the defendant entered a plea to such charge, or that the court bound the defendant over to the grand jury to answer the charge contained in such affidavit, or that the mayor was without jurisdiction to bind the defendant over to the grand jury for the offense charged in such affidavit, or that the prosecution of the offense charged in such affidavit was pending in the mayor’s court at the time the indictment was returned, but merely charges that the section of the General Code for the violation of which such indictment was returned does not define or declare an offense against the state of Ohio which could be prosecuted by indictment as a crime or misdemeanor, and that the indictment is based upon an affidavit filed in the mayor’s court of the city of Find-lay and certified to the' Common Pleas Court by the mayor’s court, which does not charge the defendant with any offense that constitutes a crime or misdemeanor for which an indictment could be brought against the defendant and raises no question as to the grand jury being precluded from exercising its jurisdiction to indict and the Common Pleas Court being precluded from exercising' its jurisdiction to try the defendant on such indictment by reason of the pendency of any prosecution of the defendant in the may- or’s court for the offense charged in the indictment. The plea fails to specifically state, as required by the provisions of Section 13437-28, General Code, the defect the defendant now claims in the indictment, and was therefore ineffective to require the court to consider such claimed defect.

But if the plea in each case, treated as a motion to quash, had been effective to require the court to consider the contention now made by the defendant that the grand jury and the Common Pleas Court were precluded from exercising jurisdiction in the premises by reason of the pendency of a prosecution in the mayor’s court on the same charge, the record in each ease is such as not affirmatively to show error on the part of the court in overruling such plea.

. When an accused is held to answer to a grand jury on an affidavit charging an offense, filed in mayor’s court it is the duty of the mayor, under the provisions of Section 13433-18, General Code, to make a record of his proceedings upon the docket of the mayor’s court and to file transcript thereof in the office of the clerk of Common Pleas Court, and under the provisions of Section 13435-13, General Code, upon such transcript being filed, it is the duty of the clerk to enter the same upon the appearance docket of the court, with the date of filing, and costs.

If such transcript had been filed in Common Pleas Court in each of the cases under consideration it would have constituted the commencement of a proceeding in such court of which the indictment would have been an incident and of which the Common Pleas Court would have been required to take judicial notice on proper motion being-made to quash the indictment •upon the ground that prosecution for the offense charged in the indictment was pending in the mayor’s court at the time of the return of the indictment. State v. Morrow, 90 Ohio St., 202, 107 N. E., 515.

But the filing of a transcript is not the only way in which prosecutions for crime may be commenced. The accused may be arrested and discharged by the examining magistrate, yet the grand jury would have a right to inquire into the offense, or where there has been neither an arrest nor a commitment, the grand jury may call witnesses before it and inquire into the probable guilt of the accused, the same as if he had been recognized to the Common Pleas Court or committed to the jail of the county to await the action of the grand jury, and in either case, where no transcript is filed, the prosecution would not be deemed commenced until the return of the indictment into the court. State v. Morrow, supra, at page 208.

An inspection of the record in each of the cases discloses that the clerk of the Common Pleas Court made no entry on the appearance docket of such court as to the filing of any transcript or proceedings had before the mayor’s court on any affidavit filed in the mayor’s court, as required by the provisions of Sections 13433-18 and 13435-13, General Code, in cases where a defendant before a judge or magistrate is held to answer to the grand jury. However, there is among the files in each case, not referred to in the docket or journal entries but bearing the file mark of the Common Pleas Court, what appears to be an original affidavit sworn to before the mayor of the city of Findlay, charging the defendant with the commission of an offense identical with the offense charged in the indictment, with state warrant issued thereon to the chief of police of the city of Findlay, and return of the warrant signed by the chief of police showing that he took the body of the defendant before the mayor’s court This paper writing bears an unsigned indorsement as follows: “7-31-42. Warrant returned. Accused arraigned. Plea of not guilty entered. Request for jury trial. Bound to Hancock county grand jury.”

This paper writing is not in any way brought into the record of the case and does not purport to be and does not constitute transcript of proceedings before the mayor, or a part of the record of the case of which the Common Pleas Court would be required to take judicial notice on the hearing of such plea, or a part of the record which may be reviewed by this court.

As there is no bill of exceptions of the hearing had on such plea and nothing appears in the record showing that prosecutions for the offenses charged in the several indictments were pending in the mayor’s court at the time such indictments were returned, it does not appear from the record that the court erred in overruling such pleas to any of the indictments.

For the reasons hereinbefore mentioned no prejudicial error appears of record in the overruling of the motion designated “motion to quash,” or in the overruling of the demurrer. And for the same reasons and the additional reason that the bill of exceptions on the trial of the cause discloses no evidence tending to prove the pendency of any prosecutions for the offenses charged in the indictments, in the mayor’s court at the time the indictments were returned and the cause tried, no prejudicial error appears of record in the overruling of the motion in arrest of judgment. Assignments of error numbers 1, 2, 3, 4, 5 and 10 are therefore without merit.

6. The record discloses .that no request was made, at the beginning of the trial, by the defendant for the exclusion of evidence from the consideration of the jury, and consequently there is no foundation for the assignment that the court erred in failing to do so.

7. A motion for directed verdict was made at the close of the state’s evidence. The defendant, instead of standing on his motion, introduced evidence in his own behalf and failed to renew his motion for directed verdict at the close of all the evidence. In this situation the motion for a directed verdict is deemed waived, and being waived, no claim of error may be predicated upon the overruling of the motion.

8. 9. These assignments are to the effect that the court erred in refusing to give defendant’s requested instructions before argument to the jury and in refusing to include and give such instructions in the general charge to the jury.

There is no provision of law requiring a court to give a request to charge before argument in a criminal case, so that if any error occurred it was in the refusal of the court to include the requested instruction in its general charge to the jury. Section 13442-8, General Code; State v. Weger, 25 Ohio Law Abs., 49; Grossweiler v. State, 113 Ohio St., 46, 148 N. E., 89; Wertenberger v. State, 99 Ohio St., 353, 124 N. E., 243; Blackburn v. State, 23 Ohio St., 146; 39 Ohio Jurisprudence, 1023, Trial, Section 308.

The defendant submitted two requests to charge. Both are predicated upon the theory that the provisions of Section 6370, General Code, apply only to dealers in secondhand articles. While such section, as it appears in the General Code, bears a descriptive designation of “Duty of dealer in second-hand articles,” such descriptive designation was not incorporated in the statute as enacted by the Legislature and was simply placed there for index purposes. An inspection of the provisions of the statute clearly shows that it applies to others than dealers in secondhand articles, comprehending a person purchasing, selling, exchanging or receiving secondhand articles of any kind.

The requests to charge, limiting the operation of the statutes to dealers in secondhand articles were, therefore, properly refused by the court, and an inspection of the general charge discloses that the court properly charged as to the application of the provisions of the statute.

Finding no error in any of the particulars assigned and argued, the judgments of the Common Pleas Court will he affirmed.

Judgments affirmed.

Jackson, J., concurs.


author: Matthews, J.

text:
    Bolser, Appellant, v. Arnold, Appellee.
    (No. 864
    Decided November 1, 1943.)

      Mr. Echo. Everett Rice, for appellant.

      Mr. E. J. Kauts, for appellee.
   Matthews, J.

The Common Pleas Court sustained in part the defendant’s motion to strike from the second amended petition and the plaintiff not desiring to plead further, the court made an order dismissing the action “with prejudice to any future action at the costs of the plaintiff.”

This appeal therefore presents two questions:

(1) Did the court err in making the order to strike? and, .

(2) Was the form of the judgment in compliance with law?

Error in the first respect would require a reversal of the judgment. Error in the second respect would require a modification and an affirmance as modified.

Error in both respects would also require a reversal.

The pleadings in this case 'were intended by the plaintiff to state a cause of action in her favor on account of personal injuries received by her while she was riding in an automobile as a guest of the defendant on a journey from Plamilton, Ohio, to Richmond, Indiana. After they had traveled about fifty minutes and had reached a point in Indiana on the public highway a short' distance east of Boston, defendant lost control of the automobile which skidded and struck a concrete pole causing plaintiff’s injuries. The theory of the plaintiff was that the defendant had lost control because of his wanton and wilful misconduct. No reference to the law of Indiana on the subject was made in the pleadings.

There are eight distinct items in the defendant’s motion to strike. In passing on these separate items, we apply the rule that if any part of the item is well pleaded the motion to strike the allegations embraced in that item should be overruled. In other words, if the motion is too broad the defect is fatal. 31 Ohio Jurisprudence, 899.

The first item covers the following allegations:

“And that on or about February 11, 1940, the-plaintiff and her husband, Earl Bolser, and her minor child,Nancy L. Bolser, then five years of age, were invited by the defendant, to accompany him and his wife, Marie Arnold in the defendant’s new Oldsmobile sedan automobile on a trip from Hamilton, Ohio, to Richmond, Indiana; that the plaintiff and her. husband and child did accompany them on said auto trip; that plaintiff’s husband rode in the car to the right of the driver, that the child rode immediately behind the driver, that plaintiff sat next to the child, and Mrs. Arnold to her right on the rear seat. The plaintiff says that the weather was very inclement, that the roadway was wet, slippery and icy, and the branches of the' trees were heavily bent down with sleet and ice; that this condition was general between Hamilton, Ohio, and Richmond, Indiana. Plaintiff says they started from Hamilton about 10:45 a. m., e. s. t.”

Now, it is no doubt true that the plaintiff could have omitted some of the details without sacrificing anything of substance, but can anyone doubt that it was material to plaintiff’s cause that she had been invited by the defendant to ride in the automobile from Hamilton to Richmond, that she accepted the invitation, that they started on the journey and that at the time the roadway was wet, slippery and icy? Those allegations were necessary to show the relation of the parties and the duty of the defendant toward the plaintiff in the operation of the automobile. We are of the opinion that the court erred in ordering these allegations stricken.

The second item covers the following allegations:

“The plaintiff further says that on said date, between 10:45, a. m. and 11:35, a. m., the said defendant drove and operated his automobile with wanton and wilful misconduct and recklessness at a high, dangerous and unlawful rate of speed of at least seventy (70) miles per hour, and at a rate of speed greater than was reasonable or proper having due regard to the traffic, the surface and icy condition of said roadway then known to him to be dangerous. The plaintiff says that the' defendant’s wife and she, the plaintiff, cautioned the defendant at different times, not to drive so fast and to be careful; that the car skidded a number of times on the road. She says that he disregarded these requests and continued to operate said car in the same wanton, reckless and wilful manner.”

These allegations are part of a lengthy paragraph that described the conduct of the defendant on the journey to the point of the accident. If true, his misconduct was wilful and wanton in the extreme.

In Jenkins v. Sharp, 140 Ohio St., 80, 42 N. E. (2d), 755, the court said: “Wantonness is essentially an attitude of mind and imparts to an act of misconduct a tortious character.” Certainly, the allegations disclose the defendant’s attitude of mind on that journey. We are of the opinion that the court erred in striking these allegations.

The third item asks that the phrase “in disregard of evident danger” be stricken and the court so ordered. The plaintiff had alleged the circumstances of the dangers that were present and we are of the opinion that it was proper pleading for the plaintiff to characterize them as evident danger. We hold that this phrase should not have been stricken.

The next item covers-these allegations: “And the defendant kept pressing this other car to permit him to pass, which the other driver declined to do, all of which increased the danger, bnt the defendant failed to heed said danger.” This allegation referred to an automobile just in front of defendant’s automobile.

Bearing in mind that wantonness is an attitude of mind, we fail to find anything objectionable in this, allegation.

The motion also attacked other parts of the amended petition. The only criticism that can apply to them is that they are more detailed than is usual in pleading and to a certain extent repetitious. Within legal limits the style of a pleading rests in the art of the pleader and the fact that an unusual style is used does not invalidate the pleading.

It is urged that the plaintiff is prevented from complaining of the striking from the amended petition, because the court had previously stricken the same allegations from the prior pleading. But the court did not strike the amended petition from the files, because it had been filed in violation of a prior order, and the usual rule is that an amended pleading supersedes the prior pleading, so that any ruling that may have been made as to it becomes immaterial. Had the amended petition been stricken from the files the ruling on the prior pleading would have continued to be material as it would have related to the only operative pleading and the validity of the ruling as to it could have been brought under review by an appeal from the judgment of dismissal on refusal to plead further. As the court did not strike the amended petition from the files it continued to be the operative pleading of the plaintiff and the ruling on the motion to strike from it is brought under review by this appeal and the court holds that it was error to sustain it.

The judgment under review is for costs on failure of the plaintiff to amend further, resulting in the involuntary dismissal of the action. It was not a disposition of the case upon the merits and, therefore, could not be the basis of a plea of res judicata to a subsequent action on the same cause. 14 Ohio Jurisprudence, 340 et seq.; 17 American Jurisprudence, 95. The inclusion of the words “with prejudice” could not make that a judgment on the merits which was not such in law and fact, when directly attacked. By Section 11586. General Code, a dismissal by the court for disobedience of an order concerning the proceedings in the action must be without prejudice. The words “with prejudice” should not have been included in the dismissal of this action.

The judgment is reversed and the cause remanded with instructions to overrule the motion to strike and for further proceedings according to law.

Judgment reversed and cause remanded.

Ross, P. J., and Hildebraht, J., concur.


text:
    Frudiger et al., Appellees, v. The National Life & Accident Ins. Co., Appellant.
    (No. 3885
    Decided May 18, 1942.)

      Messrs. Cline & Bischoff, for appellees.

      Messrs. Beams, Bretherton é Neipp, for appellant.
   Carpenter, J.

Plaintiffs were the beneficiaries in a policy of industrial insurance on the life of their nine-year old daughter. It was dated February 5,1940, and premiums were paid to June 10, 1940. The insured died March 22,1940. Proof of claim was duly filed and rejected. The petition pleaded and the answer admitted these facts. A separate defense alleged a provision in the policy that the defendant would be liable only for premiums paid if the insured was “not in sound health on the date hereof,” and that on February 5, 1940, she was “suffering from malignant cancer.”

The verdict and judgment were for plaintiffs for the face of the policy, and defendant appealed on questions of law.

The material errors assigned all'relate to the refusal of the court to charge correctly the effect of the “sound health” provision of the policy, and its refusal to submit the interrogatory, “Did Phyllis Frudiger have a malignant tumor on February 5, 1940?”

The following facts were undisputed:

On January 22,1940, plaintiffs applied for the insurance. On January 30th, insured was examined by a physician on her complaint of soreness in her left side and was ordered to a hospital for observation where she was confined from February 1st to the 7th, but there was no evidence that during that time she was suffering from any illness or that her health was in any way then impaired. On February 5th the policy was dated, and on the 10th it was delivered to plaintiffs. On February 21st insured was again ordered to the hospital by her physician, and on February 24th the plaintiffs were told by the doctor that she had a malignant tumor on the spleen, a fast-spreading cancer, from which she died on March 22,1940.

Plaintiffs, who were the only witnesses, testified that they did not know and were not told that anything afflicted the child until February 24th, and so far as they knew she was in sound health on February 5th; that when she returned home from the hospital on the 7th she acted and played about as usual, but did not go to school; and that her teacher came to the home and instructed her.

The sole fact issue was whether the insured was in sound health February 5, 1940. On this the defendant had the burden of proof. Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St., 1, 119 N. E., 132; Prudential Ins. Co. v. Zimmer, 97 Ohio St., 14, 119 N. E., 136.

As the proof stood before the jury, there was no evidence to support the defense. The jury might have surmised and this court might surmise, that the fast-spreading cancer that was reported on February 24th was present on the 5th or even on January 30th when she was first ordered to the hospital, but only a medical witness could do more than surmise such conclusion. The attending physician was called but the privilege objection precluded him from testifying, and no other medical witness was called by defendant.

There having been no evidence to support the defense, the court, had it been, asked, could very well have directed a verdict for the plaintiffs. Such being the case, it was immaterial what the jury was charged, and it had no evidence .from which it could have answered the interrogatory. No prejudice resulted from these things and the judgment is affirmed.

Judgment affirmed.

Overmyer and Lloyd, JJ., concur.