text:
    The Title Guarantee & Trust Co., Trustee, Appellee, v. Wilby et al., Appellants.
    (No. 6624
    Decided May 20, 1946.)

      Mr. Curt E. Stern and Mr. Conrad Magrish, for appellee.

      Mr. Clark Wilby and Mr. Mitchell Wilby, for appellants.
   Matthews, J.

In 1906, the plaintiff was made a trustee of certain real estate under a trust agreement for the benefit of certain named creditors of Hiram B. Mathers. Its duties were to hold the legal title, to place all the real estate upon the market, to lend its assistance in making sales and to receive and handle all proceeds of sales. However, the parties made Hiram B. Mathers the sole selling agent, without compensation and with power to determine whether sales should be public or private and all the other terms including the price. After' a sale had been made by him it was his duty to report the fact to the trustee which would then execute and deliver a deed upon payment of the purchase price. There was a provision that if Mathers failed to realize a net amount of $3,000 in any year,, the trustee was given full power and authority to sell and convey any unsold portion for the best cash price obtainable and to have the right to act solely in that behalf as it may deem best; and from then on Mathers would have no authority. Upon payment of all other beneficiaries the residue, if any, was payable to Anna B. Mathers as the ultimate beneficiary.

In 1921, the plaintiff filed suit to be relieved of this trust, but, on the request of the beneficiaries that the plaintiff continue to act as trustee, the suit was dismissed and a new agreement entered into in 1922. All the acts of the trustee were approved to the date of the 1922 agreement and the corpus of the trust described and agreed to. There was no substantial change in the duties of the trustee, but it was agreed that if Mathers should become incapacitated the beneficiaries ' and the trustee should have the right to choose his successor. They were also given the right to terminate his authority and choose his successor for any cause.

There was a provision for compensation to the trustee of $15 per month and other provisions not necessary to mention here. The agreement was described as a modification of the original agreement and, as between the parties signing it, was to take the place of the original.

The primary relief sought by the present .action is to secure the approval of the resignation of the trustee and of the accounting which it made in its petition showing its acts and proceedings as trustee and the remaining trust assets in its name.

The defendants, appellants herein, filed an answer admitting the creation and existence of the trust and certain details unimportant now, and then denied all other allegations. This was followed by a statement that they ought to be informed by the plaintiff of the exact amount due to them on their claims against the trust fund and what assets remain and “what is the present fair value of the trust estate.” They also said the court should inquire and determine whether a certain claim against Gilman, mentioned in the petition, should be settled on the basis recommended by the trustee and also should inquire as to whether the trustee had performed all its duties.

The transcript shows that this cause came on to be heard on the pleadings on February 2, 1945, and that “the court having heard the testimony adduced and the argument of counsel, said cause was submitted to the court for decision.” Notwithstanding this recital, the defendants assert that what took place at that time was so lacking in all the attributes of a trial that the judgment based thereon deprives them of the due process of law guaranteed to them by Section 16 of Article I of the Ohio Constitution and the Fourteenth Amend-' ment of the United States Constitution. As this contention challenges the validity of the judgment appealed from, we will consider it before taking up the assertions of errors in the exercise of lawful jurisdiction.

. Now what does the record show as to what took place at the time the docket recites that this cause was heard and submitted ?

In the narrative bill of exceptions it is recited that “at the trial of this cause -— the following proceedings were had upon the issues joined” and then appears a recital of the presence of attorneys representing the plaintiff and the defendants and an attorney representing the debtor Gilman. This is followed by a narration by Magrish, attorney for the plaintiff, of what he expected the evidence to prove and then a statement by Clark Wilby and Mitchell Wilby of what they expected the evidence -to show and what they thought the court should require of the plaintiff.

The bill of exceptions then continues as follows:

“Thereupon counsel for plaintiff handed up to the court the Instrument of- Trust dated February 29th, 1923,-and stated to the court that said document is the Trust Agreement-. The same having been admitted in evidence is now marked plaintiff’s exhibit ‘A’ and is hereto attached and made part of this bill of exceptions.”

Thereupon plaintiff’s counsel asked the defendants to produce a photostatic copy of 14 pages from plaintiff’s books which one of their counsel did, explaining that plaintiff’s counsel had given them to him on July 2,1943, and that the first nine pages were- titled ‘ Anna B. Mathers’ Trust Account,” the next two, “Anna B. Mathers” and the last three, “Control Account Anna. B. Mathers.” The bill of exceptions then recites that “counsel for plaintiff handed up to the court these said fourteen (14) pages and states to the court that they show everything in plaintiff’s books pertaining to this trust. The said photostats, having been admitted in evidence, are now marked as plaintiff’s exhibit B.”

The bill of exceptions then shows that the defendants’ counsel produced a plat as requested by plaintiff’s counsel and “thereupon attorney for plaintiff handed up to the court said photostat plat and stated to the court that it is a plat of the said trust property and that the part within the said heavy white lines which is the remaining property consists of a partly filled ravine with no access to any made street and is of small value. The said photostat plat having been submitted in evidence is now marked plaintiff’s exhibit C.

“Thereupon the court stated that the matter would be taken under advisement.”

The record shows that on July 12, 1945 — more than five months thereafter — a judgment entry was presented to the trial judge bearing the endorsement of one of defendants’ attorneys. This judgment entry, reserving' the general exception of the defendants, was entered on the journal that day.

Within three days thereafter the defendants filed a motion for a new "trial on the grounds that the judgment was contrary to law, was not sustained by sufficient evidence, was against the manifest weight of the evidence, and on the grounds “of irregularity in the proceedings of the court and * * * abuse of discretion by the court” preventing a fair triar and denying to them due process of law. As a part of this motion and in support of it there is an affidavit of one of defendants ’ counsel in which he purports to portray what took place at the hearing on February 2, 1945, concluding with the words, “and thereupon counsel for plaintiff rested his case and affiant also rested.”

It will be observed that during the entire hearing on February 2, 1945, there was not a single objection or exception to the manner in which the proceedings were conducted. It will also be noted that, although the judgment entry bears the endorsement showing that it had been submitted to one of defendants’ counsel, at no place in the record is there any intimation that then or at any time previously had he requested the court to be permitted.to introduce any additional evidence, or that he considered the trial still in progress, but, on the contrary, his affidavit of July 13, 1945, filed with the motion for a new trial, recites that both sides had rested after the introduction of the evidence.

However, the defendants’ counsel contend in this court that this record shows that no trial took place and point particularly to the fact that the record does not show the administering of the oath to any witness, as support for their contention.

From what we have said we think it clear that a trial did take place, that all parties so understood, that the cause had been finally submitted, and that not only a trial in fact but also in law did take place, unless the fact that no oath was administered defeats the common understanding of all. Disregarding the informality, it is clear that evidential matter was presented to the court. Does the omission of the oath invalidate all this notwithstanding the failure of the defendants to object to the informality? There is no doubt that adherence to established forms of procedure is desirable as tending to clarity and avoidance of objection later, but can a litigant who has participated in such disregard of form and has taken his chance at a favorable ending object later to the method of procedure when he is disappointed in the result? That is the question here.

We repeat that the defendants made no objection and took no exception whatsoever at this trial. In 2 Ohio Jurisprudence, 207, Section 185, it is stated:

“* * *it is a well-settled rule that one cannot urge for the first time in a reviewing court objections which could have been obviated if they had been made below. This result is based largely upon a . kind of estoppel, since a party who fails to raise an objection in the lower court which might have been' there corrected should not be allowed to wait until the case comes before the reviewing court.” . .

There is no dispute as to the genuineness of the trust agreement, which was introduced, the photostatic copy of the book account, relating to this trust, and the photostatic plat. It seems to us that as to the method pursued as to them, the defendants did more than merely refraining from objecting. .They actively participated in the method pursued. It is a general rule that one who has by his conduct induced the court to pursue a certain course cannot later object, even though the course did not conform to the law. In 2 Ohio Jurisprudence, 640, Section 593, it is said:'

“A plaintiff in error cannot attack a judgment for errors committed by himself, nor for errors which he induced the court to commit or into which he either intentionally or unintentionally misled the court and for which he is actively responsible.”

These general rules that prevent an appellant froir taking advantage of errors which he invited or t which he did not object at the time preclude the d»fendants from questioning the course pursued by th trial court, unless the failure to administer an oatl to a witness is a condition precedent to the receipt of testimony, which is not within the power of the parties to waive.,

It is stated in 42 Ohio Jurisprudence, 298, Section 297, that “a stipulation by parties as to what certain witnesses would testify cannot properly be received in lieu of their testimony,” and Hocking Valley Ry. Co. v. Helber, 91 Ohio St., 231, 110 N. E., 481, is given as the supporting authority. A reference to that case will disclose that the subject is not mentioned in the syllabus, and while a stipulation is mentioned in the opinion at page 245, no such ruling was made. And, of course, it is familiar practice for lawyers in a case to stipulate as to what a witness, if called, would say, and thus dispense with the presence of the witness altogether.

The subject of failure to administer an oath to a witness is discussed in 28 Ruling Case Law, 585. The cases seem to fall into two classes — one where the objecting party supposed the oath had been administered and.the other where the objecting party knew at the time that the oath had not been taken and made no objection then. As to this latter class it is said: “Where, however, a witness is permitted to testify without having been previously sworn, and that fact is known at the time, the defect must be taken advantage of at once, and a failure to do so is such acquiescence in the testimony as will preclude objection after verdict. ’ ’

This question was presented in the case of State v. Hope, 100 Mo., 347, 13 S. W., 490, 8 L. R. A., 608, where a witness for the state testified, without objection, without being sworn. The court at page 612 of the L. R. A. report discussed this subject, saying:

“The next assigned error rests on the claim that a witness testified on behalf of the state at the trial without having first been sworn. No objection on this ground was made at the hearing. It appears for the first time in the motion for a new trial, and nothing in the record shows when the fact was discovered by defendant or his counsel. Had the point been suggested when the witness began his statement or during his examination, the irregularity or oversight of permitting him to testify, unsworn (if it existed), could have been easily and promptly rectified. But it was not suggested. After the witness had been examined in chief he was fully cross-examined on the part of defendant. Thus was- he treated by both parties as in all respects fully qualified to testify. It has been held by other courts, as well as our own, that where an oath is requisite to qualify a person as á trier of the facts or of law, it may be waived by the competent parties in interest, either expressly (Howard v. Sexton, 4 N. Y., 157; Tucker v. Allen, 47 Mo., 488; Grant v. Holmes, 75 Mo., 109), or by going forward in the matter without inquiry or objection. Arnold v. Arnold, 20 Iowa, 275; Merrill v. St. Louis, 83 Mo., 244; Cochran v. Bartle, 91 Mo., 636, 8 West Rep., 707.” See, also, Associated Employers’ Reciprocal v. Indus. Comm., 88 Okla., 249, 251, 212 P., 604; State v. Williams, 49 W. Va., 220, 222, 38 S. E., 495; Ogden v. State (Tex.), 58 S. W., 1018, 1021.

We conclude that the claim that a trial did not take place is not sustained by the record, and that as the defendants not only failed to object at the time, but actively took part in the proceedings as conducted, they are not in a position to object to the informality on this appeal.

It is urged that as the burden rested upon the plaintiff it was not incumbent upon the defendants to do more than to insist that it make a complete disclosure and accounting. There is no doubt that a trustee is under a duty to keep an account of his- receipts and .disbursements and to render an accounting to the beneficiaries (Restatement of Trusts, Section 172), but an examination of the photostatic exhibit shows that this duty was meticulously performed. The exhibit bears every evidence of an account kept in the usual course of business, and in fact there was no objection on the ground that the account was not so kept or on any other ground. Every item is described by indicating the source of the income and the purpose of the expenditure. The money remaining is set forth and there is no dispute whatever as to the unsold real estate which is specifically described in the petition and shown on the plat that was introduced in evidence, and defendants have verified it by recourse to the public records. No request was made at the trial for an inspection of vouchers or receipts. As a matter of fact, as the items consisted of money received from the selling agents designated by the beneficiaries and payments to the beneficiaries, for taxes and to itself for agreed compensation, there could hardly be a doubt raised concerning the correctness of any of them. Proof by production of vouchers is not indispensable. Villa Site Co. v. Copeland, 91 N. J. Eq., 503, 111 A., 39, 13 A. L. R., 356.

While the burden of proof rested upon the plaintiff, by'this showing it had presented a prima facie case and the burden of going forward and producing some evidence, by cross-examination or otherwise, falsifying or surcharging the account rested upon the defendants.

The record shows that the defendants made certain specific requests at the trial and one was that the plaintiff be required to continue as trustee, thereby implying that it was a suitable trustee, which could hardly be regarded as consistent with any claim of dereliction. But the defendants had no absolute right to insist that the plaintiff continue as trustee. The court had discretion to determine that question, which it did by accepting the plaintiff’s resignation. Restatement of Trusts, Section 106.

Another specific request made by defendants at the trial was that the court fix the compensation of the plaintiff as trustee. But the amount of compensation was fixed by the trust instrument. It is not a case of determining the reasonableness of compensation. It is said, however, that the trustee should have taken steps to terminate the trust sooner, and that its failure to do so resulted in monthly compensation accruing without any advantage to the beneficiaries. But here again the duration of the trust is definitely fixed by the trust instrument. It is to endure until all claims have been paid, and only then is the trustee to convey the remaining real estate, if any, to Anna By Mathers, her heirs or assigns. The trustee could not and cannot terminate the trust. It requires a court decree even to change the trustee.

Nor can it be said that the trustee, in violation of its duty, prolonged the duration of the trust by lack of diligence in effecting sales, because the trust instrument imposed the active primary duty of effecting sales upon an appointee of the beneficiaries, other than the plaintiff.

Complaint is made that the trustee has allowed the taxes to become delinquent. The total amount of the taxes and assessments is $350 and there is no evidence as to the penalty resulting from delinquency. If the plaintiff failed in its duty in not paying the taxes, it could only be charged with the damage resulting, that is, the amount of the penalty. And as the plaintiff waived a part of its fee for services in a sum more than twice the entire tax claim, it is apparent that the defendants have suffered no prejudice or loss.

It is urged that the court should not have authorized the settlement of the claim against Gilman for less than its total. We are of the opinion that that rested in the sound discretion of the trial court, and that there was no abuse of discretion.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    The State, ex rel. Snyder, v. Board of Elections of Lucas County et al.
    (No. 4161
    Decided April 5, 1946.)

      Messrs. Lord, Hayward & Smith, for relatrix.

      Mr. Joel S. Rhinefort, prosecuting attorney, Mr. Harry Friberg and Mr. Lehr Fess, for respondents.
   Carpenter, J.

This is an action in prohibition, originating in this court, by a taxpayer as relatrix to re7 strain the Board of Elections of Lncas county from submitting to the electors of Toledo, a charter city, at a special election on April 11, 1946, a referendum on an ordinance passed - by the city council on February 28, 1946, imposing a one per cent tax on payrolls and incomes within the city.

The petition alleges that a referendum petition was filed and certified as sufficient by the clerk of council to the board and election date fixed, all as provided in the city charter. To the petition a general demurrer was filed. As the case is thus submitted, the sole question presented is whether the provisions of the charter purporting to give the people of the city the right to a referendum vote upon such an ordinance are in conflict with Section lcl of Article II of the Constitution of Ohio and, therefore, void.

It is not contended that this ordinance is invalid; in fact, the relator’s claim is that it is so valid it cannot be vetoed even by an adverse referendum vote, and that, therefore, the city should not spend money on an election.

Toledo became a charter city on January 1, 1915. The following charter sections are material in this consideration: ,

“Sec. 26. The Council. Except as reserved to the people by this charter, the legislative power of the city shall be vested in a council of nine (9) members. # # *

“Sec. 81. Referendum on Petition. Every ordinance passed by the council shall be subject to the referendum if at any time within thirty days a petition signed by electors equal in number to at least fifteen percent of the total number of ballots cast for councilmen at the preceding municipal election be filed with the clerk, requesting that such ordinance be submitted to the people for consideration.

“Sec. 83. Special Referendum Elections. The ordinance on which a referendum vote is demanded by petition, shall be submitted at a. special election held not later than thirty days after the cleric has certified to the election authorities that the petition for submission is in accordance with the requirements of this charter; but if a regular election is to be held within six months, such ordinance shall be submitted, at the regular election, unless the council directs that an earlier and special election be held.

“Sec. 85. Emergency Measures Subject to Referendum. An emergency measure shall be subject to referendum as other ordinances or resolutions. If, upon a referendum, it be not approved, it shall stand repealed, but any expense incurred in accordance with the provisions thereof and before the disapproval by referendum shall be paid under the authority thereof as if the measure were still effective. Until repealed upon referendum it shall continue effective.”

The details of the petition and election are provided for in the charter.

The Constitution of Ohio provides:

Section 3, Article XVIII. “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”'

Section 7, Article XVIII. “Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government. ”

“The general laws referred to [in Section 3, Article XVIII of the Constitution] are obviously such as relate to police, sanitary and other similar regulations, and which apply uniformly throughout the state.” Fitzgerald et al., Bd. of Deputy State Supervisors, v. City of Cleveland, 88 Ohio St., 338, 359, 103 N. E., 512, Ann. Cas. 1915B, 106.

Article II of the Constitution,.in Sections -la to 1 g, makes detailed self-executing provisions for the subjection to referendum of laws passed by the General Assembly.

Section Id, of Article II, supra, reads as follows:

“Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and emergency laws necessary for the immediate preservation of the public peace, health or safety, shall go into immediate effect. Such emergency laws upon a, yea and nay vote must receive the vote of two-thirds of all the members elected to each branch of the General Assembly, and the -reasons for such necessity shall be set forth in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon. The laws mentioned in this section shall not be subject to the referendum.”

Section 1/ of Article II, supra, reads as follows:

“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.”

It is the contention of the relatrix that Section Id, supra, precludes a referendum on the ordinance because (a) it levies a tax and (b) it was passed as an emergency measure, as it recites “for the immediate preservation of the public safety and welfare.”

The specific question thus presented is: Does the charter by section 81 thereof, making-“ every ordinance passed by the council * * * subject to the referendum,” and by section 85 thereof, making “an emergency measure * * * subject to referendum as other ordinances or resolutions,” violate Section Id of Article II of the . Constitution as to the referendum on this ordinance?

In other words, does Section Id, supra, limit the apparently very broad and absolute power given by Section 3, Article Xyill of the Constitution to municipalities “to exercise all powers of local self-government” and the referendum power reserved by Section If of Article II, supra, to the people of each municipality “on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action?”

In support of the affirmative answer for which t-he relatrix contends, she cites some of the record of the discussion of those sections in 1 Constitutional Convention of 1912, Proceeding and Debates, 554, 733, 851, 943, 945.

. Prom the cited record it appears clear, by their discussion and several drafts of these sections relating to the referendum, that the members had in mind restrictions on state-wide measures enacted by the General Assembly, and not restrictions on the powers of the people of municipalities over the ordinances passed by their councils relating solely to their local affairs.

Another authority, strongly relied upon by the relatrix, is Shryock, a Taxpayer, v. City of Zanesville, 92 Ohio St., 375, 110 N. E., 937, where Chief Justice Nichols in his opinion, on pages 384 to 386, used some language which relatrix s counsel contend indicates he thought Section Id, supra, did so limit the referendum powers of the people of municipalities.

The question at bar was not before the court in that case, and the judge’s comments are in some respects obiter; at least that case differs from this case in that Zanesville was a non-charter city and it had no provision for a referendum upon its ordinances. The court in that case was applying the procedural provisions of Section 4227-1 et seq., General Code (103 Ohio Laws, 211), and particularly the limitations of Section 4227-3.

Earlier in the opinion in the Shryock case, the Chief Justice said on page 380:

“All of the sections dealing with the subject [the initiative and referendum in Article II of the Constitution], with the exception of the particular section in question (1/), deal with it exclusively as a statewide proposition.”

Again, on page 383, after enumerating the details which the Constitution contains to make its initiative and referendum provisions self-executing, he said:

“# * * an¿[ finally provides, in Section Id, as to just what laws shall be exempt from the referendum, among others, ‘emergency laws necessary for the immediate preservation of the public peace, health or safety.’

“All of these have reference to state laws and none to the ordinances or resolutions of the councils of municipalities. ’ ’

In this connection the important provision of Section Id of Article II is the last sentence: “The.laws mentioned in this section shall not be subject to the referendum.” In the first sentence we find the laws referred to are of three classes:

“[1] Laws providing for.tax levies, [2] appropriations for the current expenses of the state government and state institutions, and [3] emergency laws necessary for the immediate preservation of the public peace, health or safety * * «

Prom the next sentence it is manifest that “emergency laws” allude only to those passed by the General Assembly, and of course those mentioned in class 2 could only come from that source. The context of the section and the comment of the Chief Justice in the Shryock case, although obiter, very well warrant the conclusion that Section Id has reference to state laws only and not to ordinances or resolutions of the councils of municipalities.

It should also be noted that Section 4227-12, General Code, indicates that the General Assembly contemplated that municipalities had or could adopt charter provisions providing for a referendum on their “own ordinances and other legislative measures.” This was pointed out in Dillon v. City of Cleveland, 117 Ohio St., 258, 158 N. E., 606, and Chief Justice Marshall, on page 276, speaking of the word “law” in the filial phrase of Section If, said that a city charter “is a ‘law’ as much as if it were enacted by the Legislature of the state.”

Here attention should be called to the fact that the closing clause of that section, i. e., “such powers shall be exercised, in the manner now or hereafter provided by law,” does not place a limit on the power of the referendum, but only on the manner of its exercise. Applying the reasoning of Chief Justice Marshall in the Dillon case, such “manner” may be provided either by laws as in Section 4227-1 et seq., General Code, or by charter, and Toledo has adopted the latter. On page 385 of the Shryock ease, Chief Justice Nichols said this clause “provides merely that the manner of exercising the right or power shall .be provided by law. ’ ’

The constitutional provision for the referendum in municipalities is not made self-executing, as it is as to state laws, and Section 4227-1 et seq., General Code, were enacted to implement the power where such is not done by charter.

The Supreme Court in opinions and syllabi has pleaded eloquently for a liberal construction of the powers of the people over the measures enacted by legislative authorities. Chief Justice Nichols, at the end of bis opinion in the Shryoch case, speaking of the initiative and referendum, said at page 386:

“* ® * it is the solemn duty of all courts to keep hands off and to avoid giving to the provisions of the Constitution on that subject a strained construction which, by reason of its very burdensomeness and unreasonableness, would tend to depopularize it.”

In the very recent case of the State, ex rel. City of Middletown, v. City Commission, 140 Ohio St., 368, 44 N. E. (2d), 459, the Supreme Court said, in paragraph one of the syllabus:

“The provisions of the state Constitution authorizing and providing the manner of submission of. municipal ordinances to a referendum vote should be so construed as to permit rather than preclude the exercise of the right conferred. The object clearly sought to be attained by such provisions should be promoted rather than prevented or obstructed.”

Looking to the broad — near absolute — powers con-' ferred upon municipalities by Section 3, Article XVIII of the Constitution “to exercise all powers of local self-government” and safeguarded to the people by referendum as expressed in Section If, Article II, “on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action,” this court can but conclude that the charter provisions expressly reserving to the people of Toledo the right of a referendum vote on this tax ordinance are valid and are not in any way repugnant to the Constitution. To hold otherwise would be “giving the Constitution a strained construction,” would be obstructing “the object clearly sought to be attained by such provision” and would be denying to the voters of the city a right which the Constitution expressly gives them in Section 1/ of Article II of the Constitution.

The prayer for a writ of prohibition is denied.

Writ denied.

Stuart and Conn, JJ., concur.


author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. Laswell et al., Appellants.

      (No. 117
    Decided April 9, 1946.)

      Mr. Julian E. Clark, prosecuting attorney, and Mr. John M. Kiracofe, for appellee.

      Messrs. King & Young, for appellants.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Preble county, Ohio. The defendants, Arlie Laswell and Tillman Laswell, brothers, were jointly indicted for second degree murder for the killing of Eddie Settles on September 3, 1945, at the Buckeye Gardens in Preble county, Ohio, tried and found guilty of the offense charged.

For their first assignment of error, the defendants contend that the trial court committed error in charging the jury as to the penalty for second degree murder, assault and battery, and assault, and in failing to include in the charge a statement, “that in determining the question of guilt, it must not consider the punishment but that punishment'rests with the judge, as may be provided by law,” as provided by Section 13442-9, General Code. It is contended that the failure of the court to charge relative to the punishment for manslaughter confused the jury, which caused it during the deliberations to make an inquiry of the court as to the penalty for manslaughter. In answer to this inquiry the court informed the jury as follows: “The court cannot give you any instructions on the information requested in your note. You will retire to the jury room for further consideration.”

It is contended that the failure of the court to inform the jury as to the penalty for manslaughter led the jury to believe that manslaughter was not involved in the case. We do not believe that the fact the court did not inform the jury as to the penalty for manslaughter led the jury to believe manslaughter was not one of the lesser crimes of which the defendants may have been found guilty, inasmuch as the court charged the jury as to the elements of manslaughter and explained to the jury the form of verdict for manslaughter. The failure of the court to charge the jury that they must not consider the punishment did not work to the prejudice of the defendants but rather of the state. In the case of State v. Moon, 124 Ohio St., 465, 179 N. E., 350, it was held:

“The omission of an instruction, that the jury must not consider the punishment, may be prejudicial to the rights of the state, but is not to the detriment or disadvantage of a defendant charged with an offense to which such provision applies, and he is therefore not prejudiced thereby or prevented from having a fair trial. ’ ’

It was also held in that case that a judgment of conviction would not be reversed unless it affirmatively appeared from the record that the accused was prejudiced thereby or was prevented from having a fair trial as provided in Section 13449-5, General Code. See State v. Huffman, 131 Ohio St., 27, 1 N. E. (2d), 313; Makley v. State, 49 Ohio App., 359, 197 N. E., 339; State v. Hobbs, 59 Ohio App., 274, 17 N. E. (2d), 937, affirmed by the Supreme Court in 134 Ohio St., 56, 15 N. E. (2d), 775. In the case at bar the court is of the opinion that the defendants were given a fair trial, and that the failure of the court to charge in the respect mentioned did not constitute reversible error.

For their, second assignment of error, the defendants contend that the charge of the court on manslaughter was wholly inadequate and failed to divide the subject into its two natural divisions of voluntary and involuntary manslaughter. Counsel cite the case of State v. Carter, 75 Ohio App., 545, 58 N. E. (2d),. 794, in which it was held:

“It is prejudicial error for a court, in its charge to the jury as to manslaughter, in a case involving an indictment for murder in the second degree, to neglect to divide such subject into its two natural divisions, voluntary and involuntary manslaughter, and to fail to give a correct statement of the necessary elements which must be shown beyond a reasonable doubt to make a case, when so required by the evidence.”

An examination of that case discloses that the court failed to define manslaughter in general or voluntary and involuntary manslaughter. In the case at bar, the court did charge the jury with respect to manslaughter and, although we believe the court should have elaborated on the definition, nevertheless, we are of the opinion that the judge clearly gave the elements of voluntary and involuntary manslaughter, when he charged the jury as follows:

“Should you find the defendants, or one of them, not guilty of murder in the second degree, then you will inquire whether the killing of Eddie Settles by these defendants, or one of them, if you find that they, or one of them, did kill him, was done unlawfully without malice, either upon a sudden quarrel, or unintentionally while the defendant was engaged in the commission of an unlawful act.”

This charge concisely states the essential elements of voluntary and involuntary manslaughter. Voluntary manslaughter is the unlawful and intentional killing of another while the one who commits the crime is under the influence of a sudden passion or heat of blood produced by an adequate and reasonable provocation before a reasonable time has elapsed for the blood to cool and reason to assume its habitual control. Involuntary manslaughter, is the unlawful and unintentional killing of a human being while the slayer is in the commission of an unlawful act. See State v. Carter, supra; Johnson v. State, 66 Ohio St., 59, 63 N. E., 607, 90 Am. St. Rep., 564, 61 L. R. A., 277.

We do not believe that the defendants were prejudiced by the charge as given.

For their third assignment of error, the defendants contend that the court erred in its charge to the jury in not fully charging on the matter of self-defense. The court instructed the -jury relative to.the issue of self-defense and there is nothing in the charge prejudicial to the rights of the defendants. The court did not go very much into detail with respect to the elements of proof which would sustain a plea of self-defense, however, the charge as given was correct, and if counsel believed at the time that the court did- not fully instruct the jury in regard to self-defense, it was the duty of counsel to call the court’s attention to the omission. At the end of the charge, the court made the following-inquiry of counsel: “Is there anything further from counsel for either side at this time?” Counsel did not request the court to give additional instruction. Counsel only reserved a general exception to the charge. It has been held that a general exception to the charge is effectual only as to errors of law existing-in the charge as given and does not bring in review an omission or failure to give further proper instructions. Furthermore, it is the duty of counsel to call the court’s attention to any omission and make a request for further instructions. Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, 65 N. E., 613; State v. McCoy, 88 Ohio St., 447, 103 N. E., 136; Rucker v. State, 119 Ohio St., 189, 162 N. E., 802; 2 Ohio Jurisprudence, 909.

For their fourth assignment of error, the defendants contend that the court committed error in charging the jury on the principle of aiding and abetting, because the evidence in the cause furnished no foundation for such charge.

Section 12380, General Code, provides:

“Whoever aids, abets, or procures another to commit an offense may be prosecuted and punished as if he were the principal offender.”

After reading the record in this case, the court is of the opinion that the trial court very properly charged the jury on this question. This assignment of error applies particularly to Tillman Laswell who did not strike the fatal blow. However, there was evidence introduced by the state from which the jury could have reasonably concluded that Tillman Laswell aided and abetted his brother and acted in concert with bi-m in the commission of the crime. The jury evidently believed the testimony given by the witnesses called by the state, which strongly supported the contention of the state that Tillman Laswell did commit an overt act by striking the decedent over the head with a beer bottle during the scuffle at which time the decedent was stabbed in the neck and other places in the body, which caused his death. It was not incumbent upon the state to prove a prior conspiracy between the two defendants to commit the crime. It was sufficient for the state to prove that at the time the crime was committed the two defendants acted in concert in accomplishing their felonious act or that Tillman Laswell committed an overt act with a view to accomplishing their purpose, as held in the case of Goins v. Stale, 46 Ohio St., 457, 21 N. E., 476, and Woolweaver v. State, 50 Ohio St., 277, 34 N. E., 352, 40 Am. St. Rep., 667.

For their fifth and sixth assignments of error, the defendants contend that they, were not accorded a fair and impartial trial, and that the verdict of the jury was not sustained by sufficient evidence and was contrary to law. The defendants contend that they were not given a fair and impartial trial due to the alleged errors complained of in their first four assignments of error, which have already been determined. On the question of the weight of the evidence it was the peculiar province of the jury to disbelieve the testimony of the defendants and believe the testimony of the witnesses presented by the state. A judgment on a verdict of guilty will not be reversed as not sustained by sufficient evidence unless the verdict and judgment are clearly and manifestly contrary to the weight of the evidence. Breese v. State, 12 Ohio St., 146, 80 Am. Dec., 340; Scaccuto v. State, 118 Ohio St., 397, 161 N. E., 211; State v. DeWine, 31 Ohio Law Abs., 693; 2 Ohio Jurisprudence, 752, Section 663.

Was the verdict of the jury against the manifest weight of the evidence? There was evidence introduced on behalf of the state which strongly supported the claim of the state, that approximately ten weeks prior to September 3, 1945, Arlie Laswell was involved in trouble at the Buckeye Gardens; that the next morning his brother, Tillman Laswell, went to the Buckeye Gardens to inquire about the purse of Arlie’s wife, which had been lost when the trouble occurred on the night before; that on September 3, 1945, the two defendants and several other persons went squirrel hunting some distance south of Richmond, Indiana; that in the evening the two defendants and a third person by the name of Brock came to the Buckeye Gardens by automobile; that after the two defendants entered the place of business and ordered some beer, Kinney, the proprietor, asked them to leave; that the Laswells had done some drinking that day; that the conversation of Arlie Laswell with Kinney showed hostility; that the proprietor asked Brock to cooperate with him in getting the Laswells to leave the premises; that when Eddie Settles and Junior Fleenor, both employees of the Buckeye Gardens, came on duty and were engaged in waiting on customers, Arlie addressed these two employees in vile and provocative language in a manner which indicated hostility; that an argument ensued between Eddie Settles and Arlie Laswell and blows were struck; that Tillman Laswell approached the deceased from his rear and hit him over the head with a beer bottle; that there was. evidence to indicate that Settles had Arlie Laswell on the floor and was on top of bim holding him down when Tillman Laswell struck Settles over the head with the beer bottle; that about that time it was observed that Arlie Laswell had a knife and as Settles was struck over the head with the bottle he, as the witness put it, “gave away,” and at that moment Arlie cut him in the neck; that as Settles got up and walked away Arlie followed him across the floor and stabbed him in the back; that a free-for-all fight then took place between the two Laswells and Kinney, Fleenor and the two Baker boys who were customers at the time; that the Laswell boys were driven into a small enclosure near the door, through which they attempted to escape; that their escape was prevented by the door being locked; that they asked permission to leave and one witness testified that “Tillman would say, we’ll leave, but we’ll be back”; that after the affray had gone on for a period estimated to be some 20 or 30 minutes, the proprietor permitted the Laswells to cross the floor and to leave through another door; that thereupon several persons assisted Settles to an automobile which was parked in the parking space, intending to take him to the hospital; that while Settles was being placed in the automobile, Tillman Laswell was observed standing near the Laswell automobile loading a shotgun; that Arlie said, “get that soldier and sailor”; that Tillman fired, according to his own testimony, three, four or five times; that he fired several shots toward the building, knocking the glass out of the doorway, and also fired at least once and perhaps twice, striking the automobile in which Settles was placed; that Settles was taken to the hospital and was pronounced dead upon arrival; that examination showed' he died as a result of the stab in the neck which severed the jugular vein; that the defendants secreted themselves until the next day when they fled to California; and that a few weeks thereafter they returned and surrendered to the sheriff.

We are of the opinion that from the evidence in this case the jury was- justified in finding both defendants guilty of murder in the second degree. We do not believe that the verdict of the jury was against the manifest weight of the evidence, or that the verdict of the jury or the judgment of the court was contrary to law.

We find that this case was fairly tried and ably presented, and that substantial justice was done. We find no errors in the record prejudicial to the rights of the defendants. The trial judge was fair in his rulings on the admission and exclusion of evidence and committed no prejudicial error in giving instructions to the jury.

The judgment of the trial court will be affirmed.

Judgment affirmed.

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


author: Montgomery, J.

text:
    Saeger et al., Appellants, v. Canton City Lines, Inc., Appellee, et al.
    (No. 2218
    Decided May 4, 1946.)

      Messrs.. Lynch, Day, Lynch, Cope & Kétterer, for appellants. . ■

      Messrs. Black, McGuskey, Sou,ers & Arbaugh, for appellee.
   Montgomery, J.

The plaintiffs, appellants herein, brought an action in the Court of Common Pleas against the defendant Canton City Lines, Inc', appellee herein, and one Ernest Guess for property damage sustained to an automobile belonging to the plaintiff Saeger. In the petition there were various specifications of negligence against both defendants and the claim was made in the petition that the damage sustained by the plaintiff Saeger was caused directly and proximately by tbe joint and concurrent negligence of the defendants in the respects set forth.

There was no substantial dispute of facts and no question raised as to the amount of the property damage. • The defendant Guess made no defense. The defendant Canton City Lines, Inc., defended chiefly upon the ground that the driver of its bus involved in the collision was confronted with an emergency and did what he could to avoid a collision and did no more than he ought to have done under the circumstances.

The cause was submitted to a jury, which rendered a verdict against both defendants. As to the defendant Guess judgment was rendered on the verdict and it is in full force and effect. The Canton City Lines, Inc., filed a motion for new trial and also filed a motion for judgment notwithstanding the verdict. In the opinion rendered on those motions by the trial judge, he announced that both motions would be sustained. However, there was never any order journalized so far as the motion for new.trial was concerned. There was an order journalized granting judgment for the Canton City Lines, Inc., notwithstanding the verdict, and from that judgment of the trial court this appeal was perfected.

As hereinbefore stated, there was no substantial disagreement about the facts. Saeger was proceeding-in a northerly direction on Mahoning road in the city of Canton and on his right side of the center of the street. The bus of the defendant company was proceeding southerly on the same street and also to the right of the center of the road. On both sides of the street, cars were parked almost continuously on lines parallel with the curbs. As the bus approached in a southerly direction one of Chose cars parked along the street pulled out from the west curb, perhaps a distance of three feet, and, as testified by the witness Bracken, pulled out about three feet and stopped two or three car lengths in front of the approaching bus. To avoid the collision with this car which belonged to Guess, the bus driver swerved his bus to the left, crossing the center of the highway, and there was a collision between the bus and the car of Saeger. From the record we agree with the trial court that from the time the Guess car pulled out and the bus driver was confronted with the emergency, he did all that could reasonably have been expected from him and did what a reasonably prudent driver would have done.

The undisputed testimony is that this happened in the night season on a rainy night, one witness at least testifying that it was raining hard. The pavement was slippery and the street not too well lighted. The evidence is that the bus was traveling anywhere from 25 to 35 miles an hour just prior to the swerving of it. The bus was heavily loaded with passengers, all seats were taken and some of the passengers were standing in the aisle, just back of the railing to the rear of the operator of the bus. The record does not disclose what rate of speed would have been prima facie lawful at the point of this collision. The trial court arbitrarily stated that it was 35 miles. Counsel argue that it was 25 miles. There is no evidence upon the subject.

The sole question presented to us, as we view it, is, in view of this evidence, the propriety of rendering a judgment notwithstanding the verdict. Except in one respect, we agree with the trial judge. He had properly submitted this -case to the jury under a charge complete in all details covering the specifications of negligence as to which there was any evidence at all. In sustaining the motion, however, he in effect held that there was no evidence of negligence on the part of the driver of the bns. As we have stated, we find none at the exact time of the collision. There is, in onr judgment, evidence of negligence prior to the collision in the matter of speed, as, we have above indicated.

Section 6307-21, General Code, provides in part':

“No person shall operate a motor vehicle, trackless trolley or street car in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing * * *. ’ ’

Here- it was incumbent upon the driver of this bus to have due regard for the traffic and other conditions then existing, to wit, the character of the night, the condition of the pavement, the lighting situation, the parking of cars along the curbs, and the possibility of a car looming up before the driver, which he could not see in time to avoid a collision, unless his bus was under control and being operated at a speed which would make this reasonably possible. Were not these questions questions for the jury?

The Supreme Court, in the case of Pennsylvania Rd. Co. v. Lindahl, Admr., 111 Ohio St., 502, 146 N. E., 71, which was however a crossing case, concludes its opinion with the following statement:

“When Lindahl was confronted with the sudden emergency of finding himself in an automobile crossing a track upon which a train was bearing down, he was required to use only that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. It was a question of fact whether Lindahl saw the train in time to avoid the accident so far as he was concerned, and used the requisite degree of care, and that question was rightly submitted to the jury.”

Counsel for appellants, with considerable propriety, stress the holding in Boenke v. Cincinnati Street Ry. Co., 56 Ohio App., 227, 10 N. E. (2d), 232, the second paragraph of the syllabus of which is:

“A special charge to the effect that if a motorman of a street ear, after being placed in a position of emergeney by the approach of a police auto patrol, did or attempted to do what ordinarily prudent persons would do under similar circumstances, then he was not negligent, is properly refused since it fails to consider the duty of the motorman to exercise a proper degree of care to discover the approaching auto patrol before he placed the street car in the position of emergency. ’ ’

In 1 Blashfield Cyclopedia of Automobile Law and Practice (Perm. Ed.), 480, Section 669, it is stated:

“The rule of sudden emergency as above stated cannot be invoked by one who has brought that-emergency upon himself by his own wrong or who has not used due care to avoid it.”

We direct attention to the case of Montgomery v. City of Philadelphia, 270 Pa., 346, 113 A., 357, the fourth paragraph of the syllabus of which is:

“One is not to be held responsible for an error of judgment, when an accident arises in an attempt to escape from a position of peril; but this rule is subject to the qualification that the one injured must have been placed in the dangerous situation without negligence or fault of his own.”

In the case of Casey v. Siciliano, 310 Pa., 238, 165 A., 1, the first and second paragraphs of the syllabus are:

‘ ‘ 1. The sudden emergency rule will not apply if the emergency arises through the prior negligence of him who seeks the protection of the rule.

“2. The question of the prior negligence of him who claims the emergency is usually one for the jury to determine, under proper instructions.”

The trial court in rendering judgment relied oh the two Ohio Supreme Court cases of Cleveland City Ry. Co. v. Osborn, 66 Ohio St., 45, 63 N. E., 604, and Cleveland Ry. Co. v. Orwig, 124 Ohio St., 134, 177 N. E., 201. The latter is more nearly in point than the former and there is some similarity between the facts in the Onvig case and the facts in the instant case. However, in that case the record failed to disclose any such traffic conditions or objects in the street or along the curb, or any such condition of the weather or whether or not the place of the accident adjoined highly built-up portions of the community, as are shown in the instant case, and is silent as to the hour of the day or night in which the accident happened. We think the facts in the instant case-are sufficiently different from the facts in the Onvig case to justify us in adhering to the law as hereinbefore stated.

It follows that the judgment of the Court of Common Pleas is reversed and this cause is remanded to that court with instructions to take such action as it may deem best on the pending motion for new trial and to render judgment accordingly.

Judgment reversed.

Sherick, P. J., and Putnam,- J., concur.


author: Matthews, J.

text:
    Neyer, Trustee, Appellee, v. The Reuben H. Donnelley Corp., Appellant.

      (No. 6638
    Decided April 8, 1946.)

      Mr. Alfred G. Klein, for appellee.

      Mr. Walter K. Sibbald, for appellant.
   Matthews, J.

The Common Pleas Court sustained the plaintiff’s motion for judgment on the pleadings and entered judgment accordingly. This appeal to this court is from that judgment.

Frederick W. Schmidt filed a petition and schedules in bankruptcy in the United States District Court in and for the Southern District of Ohio, Western Division, on the 15th day of September 1942, and was adjudged a bankrupt by that court on that day. Thereafter, on the 19th day of October 1942, Leo B. Neyer was appointed trustee in bankruptcy in such proceeding and filed this action as such trustee.

Prior to the filing of his petition in bankruptcy, the bankrupt owned a Dodge truck upon which The Guardian Bank & Savings Company held a mortgage to secure a balance due of $128.08.

On September 15, 1942, when the petition in bankruptcy was filed and the adjudication in bankruptcy entered, an unsatisfied judgment, rendered on September 2, 1942, existed against the bankrupt in the Municipal Court of Cincinnati, upon which an execution had been issued and levied on the Dodge truck, and on September 15, 1942, an officer sold it for $428. On September 18, 1942, such officer distributed the proceeds in payment of the mortgage debt and costs of suit and paid the balance of $281.55 to the judgment creditor, the defendant in this action.

These facts and the fact that plaintiff had demanded payment from defendant of the amount received by it are admitted.

It is also admitted that the bankrupt was insolvent at all times material to this inquiry, but there is no admission that defendant knew it.

The .question is whether the defendant is entitled to hold this money as against the judgment debtor’s trustee in bankruptcy.

It is admitted that whatever lien the defendant acquired by its judgment and levy upon this Dodge truck, having been acquired within four months, would have been avoided by the filing of the petition in bankruptcy and the subsequent adjudication thereon. Section 67 of the National Bankruptcy Act. It is also conceded that if the execution lien had existed at the time the petition in bankruptcy was filed, the trustee would be entitled to recover for general creditors the amount subsequently realized by the judgment creditor thereon. Ibid.

But it is urged that as the truck had been sold when the petition in bankruptcy was filed, no lien existed to be nullified. That the title to the truck had passed to an innocent purchaser, free of all claims of the trustee in bankruptcy, is not doubted, but that is not the property here involved. It is the proceeds of the sale of the truck in the hands of the sheriff or bailiff at the -time the bankruptcy proceeding was commenced that is the subject of this controversy.

The question is whether the defendant’s title had become so complete and absolute at that time as to make it paramount to the claim of the trustee in bankruptcy. We think not.

In 6 American Jurisprudence, 623, relative to the effect of filing a petition in bankruptcy, it is said: “Upon the filing of the petition, in general, all power of inchoate rights to become consummated or vested rights ceases.” And it is stated further at page 725: “Where the possession of the state court has created a lien by legal proceedings within four months of the bankruptcy and while the debtor is insolvent, the state court does not retain jurisdiction; the property affected must upon adjudication of bankruptcy, be surrendered ’to the bankruptcy court. ’ ’

Money realized on execution remains in the custody of the law so long as the executing officer retains it under the writ.

In Keating v. Spink, 3 Ohio St., 105, 124, 62 Am. Dec., 214, the court, quoting from an earlier case, said: “While the money remains in the hands of the officer, it is in the custody of the law. It does not become the property of the judgment creditor till it is paid over * * *.” That case is a leading one on the subject, and the principle stated is uniformly set forth as a part of the text statement of the law. 17 Ohio Jurisprudence, 979; 21 American Jurisprudence, 169.

An analysis of the facts of Clarke v. Larremore, 188 U. S., 486, 47 L. Ed., 555, 23 S. Ct., 363, discloses no substantial difference between the facts of that case and the facts of the case at bar. In that case the sheriff had the money in his hands at the time of the institution of the bankruptcy proceedings, which money was realized from the sale of personal property under an execution to satisfy a money judgment. While there had been an injunction restraining him from disbursing the money, such injunction had been dissolved. It is true that upon the filing of the bankruptcy proceeding in that case, the court issued a restraining order, but if the title of the judgment creditor was good, the restraining order could not affect it. It would only hold the money in the hands of the sheriff, while the right thereto was determined. At page 488, of the opinion in the Clarke case, the court said:

“It is said that that money was not the property of the bankrupt but of the creditor in the execution. Doubtless as between the judgment creditor and debtor, and while the execution remained in force, the money could not be considered the property of the debtor, and could not be appropriated to the payment of his debts as against the rights of the judgment creditor, but it had not become the property absolutely of the creditor. The writ of execution had not been' fully executed. Its command to the sheriff was to seize the property of the judgment debtor, sell it and pay the proceeds over to the creditor. The time within which that was. to be done had not elapsed, and the execution was still in his hands not fully executed.”

At page 490, the court did distinguish the case before it from a case in which the “writ had been fully executed by payment to the execution creditor, ’ ’ but that distinction is irrelevant here as the money was in the hands of the sheriff, and he had not fully executed the writ.

Counsel cites and relies on In re Clinton Wine & Liquor, Inc., 40 F. Supp., 106, but in that case the trustee failed because of lack of proof of insolvency which is admitted in the case at bar. Nothing was said in that case that could be construed as a criticism of Clarke v. Larremore, supra. All the court said was that it did not agree with the referee’s conclusion that it controlled in the case before it, as manifestly it did not because of the difference in the facts on the subject of the financial condition of the bankrupt at the time.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Conn, J.

text:
    Cassidy, Appellant, v. The Ohio Public Service Co., Appellee.
    (No. 592
    Decided March 25, 1946.)

      Messrs. Murray & Murray, for appellant.

      Messrs. Flynn, Frohman, Bucliingham, Py S Kruse, for appellee.
   Conn, J.

This is an appeal to this court by the plaintiff, appellant herein, on questions of law from a judgment of the Court of Common Pleas entered on a directed verdict for the defendant, appellee herein, The Ohio Public Service Company. This action is one for damages for personal injuries sustained by plaintiff and the parties will be referred to herein as they appeared in the trial court.

In his petition as amended, plaintiff alleges that on February 10, 1941, and prior thereto, he was in the employ of The Kalill Company, which was engaged in constructing a storm sewer on Buchanan street in the city of Sandusky, Ohio; that at such time the construction work had proceeded easterly on Buchanan street to a point where that street intersects Mills street at approximately right angles; that one block south of the intersection, Mills street intersects Perkins avenue and that on the south side of the last mentioned intersection the defendant maintained a substation and the employees of defendant had a clear and unobstructed view from the substation to the intersection of Mills and Buchanan streets; and that the defendant had knowledge of the construction work as it progressed to and into the intersection of Mills and Buchanan streets.

Plaintiff alleges further that on such date and prior thereto the defendant maintained high tension wires on potes on the east side of Mills street starting at defendant’s substation and running north therefrom; that the construction company used a crane with a long boom to lower the reinforced tile into position and that as plaintiff had his hands on the tile which was thus being lowered, electricity from the high tension wires jumped to the boom of the crane, which was one or two feet west of the high tension wires, and approximately 33,000 volts of electricity passed through plaintiff’s body, severely injuring him whereby he sustained damages; that the injury and damage sustained by plaintiff were the proximate result of defendant’s negligence in that defendant violated Section 101 of the city ordinances of the city of Sandusky, Ohio, which ordinance granted to The Sandusky Gas Light Company of San-dusky, Ohio, a right of way through and upon the streets of that city for the purpose of erecting and maintaining poles and necessary wires to convey electrical current for light, power and heating and the further right to operate and maintain the poles and wiring now in use and heretofore operated by The Sandusky Electric Light, Fuel, Gas & Supply Company and The Western Electric Company, assigned to The Sandusky Gas Light Company; that defendant could or should have seen that the machinery of the construction company would come within proximity of the high tension wires; that defendant had knowledge thereof and failed to warn plaintiff; that defendant failed and neglected to shut off the current as the machinery approached the high tension wires; that defendant failed and neglected to properly insulate its high voltage wires; that defendant failed and neglected to raise its wires to such a height as to protect the plaintiff from injury, though it undertook to do so; and that defendant failed to raise its wires in accordance with the customary and usual methods employed in raising wires of like nature.

The amended answer of defendant contains a general denial and a specific denial that defendant had violated the ordinance in failing to insulate its wires at or near the intersection of Mills and Buchanan streets and avers that the provisions in the ordinance for weatherproof insulation is ah “unreasonable, illegal, impractical and unsafe requirement”; that even though compliance with the ordinance was required of it, failure to insulate its wires was not the proximate cause of plaintiff’s injuries; that plaintiff’s injuries were due solely to the negligent manner in which the employees of The Kalill Company, including plaintiff, used the machinery in operating same in close proximity to the power lines; and that the wires and lines were erected and maintained in a safe manner and in full compliance with the provisions of the National Electrical Safety Code issued by the Department of Commerce of the United States of America and in accordance with the customs and usage of utility companies. The affirmative allegations in the answer of defendant were denied by plaintiff in his amended reply.

The six assignments of error relied on by plaintiff are, in substance, that the trial court erred in directing a verdict for defendant at the close of plaintiff’s case and that the judgment of, the court is against the weight of the evidence and contrary to law.

We shall first give attention to the alleged violation by defendant of the ordinance of the city of Sandusky known as Section 101 of the recodification of original ordinance No. C-386. This ordinance granted a franchise to The Sandusky Gas Light Company and its successors and assigns to erect and maintain in the streets and alleys of the city of Sandusky, Ohio, poles and wires for a system of electric light, power and heating purposes and contained the following proviso:

“Provided that all wires erected and operated by said The Sandusky Gas Light Company shall be covered with weatherproof insulation * *

At the time this ordinance was enacted, Section' 3471-3, of the Revised Statutes of Ohio (Section 9195, General Code), expressly provided that all wires for conducting electricity be covered with waterproof insulation. In 1929, the Legislature amended Section 9195, General Code, and eliminated the provision for waterproof insulation.

The. alleged violation of the ordinance raises two questions, to wit: Were the provisions of the ordinance as to insulation applicable to the defendant’s high tension lines on Mills street at said intersection and, if so, was any duty imposed at such time and place, the violation of which was the proximate cause of plaintiff’s injuries?

The provision for weatherproof insulation is limited to “all wires erected and operated by said The San-dusky Gas Light Company.” The record does not disclose when the high voltage lines on Mills street were constructed. If these lines were constructed before the ordinance became effective, the requirement for insulation would not apply.

In view of the conclusions we have reached in this case and" finding that it must be remanded for further proceedings, it appears to be proper to consider further the legal duty, if any, of defendant to insulate its wires. If, upon a subsequent trial of this case, it is shown that the high voltage lines on Mills street were constructed since the ordinance went into effect, then the further question would arise as to whether the defendant was required to cover each of its high voltage lines on the street with weatherproof insulation, as provided for in the ordinance. Defendant answers that question in the negative.

The charter of the city of Sandusky, adopted on July 28, 1914, limits the time of any franchise given a public utility to 20 years. The franchise under consideration was granted prior to the adoption of the city charter and its duration is not expressly fixed by its ternas. Defendant contends that the ordinance relied on by plaintiff has expired by reason of its passage more than twenty years prior to the time plaintiff was injured.

It appears to be well settled in this state that where the contract between the municipality and the corporation is silent as to the duration of the franchise, the grant is not perpetual but indeterminate, “existing only so long as the parties mutually agree thereto.” 19 Ohio Jurisprudence, 302, Section 21; Parks v. Cleveland Ry. Co., 124 Ohio St., 79, 96, 177 N. E., 28; East Ohio Gas Co. v. City of Akron, 81 Ohio St., 33, 90 N. E., 40, 26 L. R. A. (N. S.), 92, 18 Ann. Cas., 332.

It appears also well settled that a franchise which has been accepted and utilized is contractual in character and that the grantee or assignee takes it subject to its burdens and that the duties and conditions prescribed will be discharged. 19 Ohio Jurisprudence, 284, Section 4; page 293, Section 12; 37 Corpus Juris Secundum, 178, Section 25; 23 American Jurisprudence, 743, Section 35.

It is further contended by defendant that it has no common-law duty to insulate its high voltage lines and no statutory duty, as the requirement to do so had been repealed by the^ Legislature in 1929 when it amended Section 9195, General Code.

By virtue of the provisions of Section 3,. Article XVIII of the Constitution of Ohio, municipalities are given “authority to exercise all powers of local self-government and to adopt and .enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” The Home Rule provisions of the Ohio Constitution are self-executing. Perrysburg v. Ridgway, 108 Ohio St., 245, 140 N. E., 595.

Section 3637, General Code, authorizes municipalities “to regulate the construction and repair of wires, poles, plants and all equipment to be used for the generation and application of electricity * * That statute is found in the chapter of enumeration of powers of municipalities and was enacted in 1902. It appears to confer on municipal corporations the “right of a continuous reasonable regulation.” 15 Ohio Jurisprudence, 530, Section 46.

Our attention has not been called to any general statute limiting a municipality in this state in the matter of setting up reasonable regulations governing the construction and maintenance of high voltage lines within a municipality. The amendment to Section 9195, General Code, repealing the provision requiring insulation of all wires conducting electricity could hardly have that effect. There being no general statute requiring the insulation of high voltage wires and none making provision as to the manner or character of insulation and none prohibiting it, the field remains open and municipalities, within their respective territorial limits and in the exercise of the powers of local self-government, may make all reasonable regulations therein, subject to constitutional requirements and limitations. 28 Ohio Jurisprudence, 228, Section 120, and cases cited.

It is urged further by defendant that the provision for weatherproof insulation is unreasonable and impracticable and that compliance with these provisions bf the ordinance was not required. Defendant claims further “that said lines were erected in full compliance with the provisions of the National Electrical Safety Code issued by the Department of Commerce of the United States of America and in accordance with the customs and usage and ordinary procedure of utility companies.” As these defenses are factual in character, they can not be considered and determined on the present record.

The question presented by the record, simply stated, is: Does the record contain credible evidence of defendant’s negligence or have such facts and circumstances been shown from which an inference of such negligence may be reasonably drawn, and which \yas the proximate cause of plaintiff’s injury and damage?

Plaintiff having a right to be at the place where he received his injury, it appears to be well settled that defendant owed him the duty to exercise ordinary care in the conduct of its business and the maintenance of its high voltage lines. The -dangerous character of electricity of high voltage, when conveyed over uninsulated wires, and its natural tendency to escape, enjoined upon the defendant, in the exercise of ordinary care, the duty to use care commensurate with the danger; that is, such care as a reasonable person would use under the same or similar circumstances. If the defendant failed in this respect, and such failure was the proximate cause of plaintiff’s injury and damage, then under well established rules, the defendant would be liable. 15 Ohio Jurisprudence, 514, 515, Sections 27, 28; 18 American Jurisprudence, 441 to 446, Sections 47, 48; 29 Corpus Juris Secundum, 575, Section 39.

The evidence in this case discloses that the defendant had knowledge of the building of the sewer in Buchanan street and the progress of the work as it approached the intersection of such street with Mills street, on' which the defendant’s high voltage lines were located, and also knowledge of the character of the equipment employed in the construction of the sewer. It appears that a week or ten days before the construction work reached the street intersection and when the construction work was about 100 feet therefrom, the defendant caused all its wires to be raised at the street intersection and that when this work was completed, the employee of the construction company in. charge of the crane inquired of one of the employees of defendant if that was as high as they were going to put the wires and his reply, in substance, was that they could not raise them any higher unless “they lashed the poles to the other poles and put them up on them. ’ ’

The evidence also tends to show that in view of the equipment used in the construction work, the method employed by defendant in raising its wires at the street intersection was not the customary method used by utility companies; that it would have been practicable to raise the wires higher by lashing two poles together or to have cut the circuit completely on Mills street by building a line around the intersection and taking the lines out of service entirely at that point.

At the time plaintiff received his injury, he was guiding a large concrete tile into position as it was being lowered into the ditch by the operator of the crane. The evidence shows that the crane was set in position, centered with the ditch and blocked, and the operator swung the boom around to see if it would clear the wires before the concrete tile was picked up by the crane. It appears from the evidence that the end of the boom did not come in direct contact with the high voltage wires; that as the plaintiff undertook to guide the tile into position by placing his hands upon it as it was lowered, the electric current jumped across to the boom. The evidence also tends to show that the plaintiff at and prior to the time of his injury had no control of the operation of the crane and no authority over the operator and did not know that the wires at the street intersection carried high voltage electricity.

It is a rule of procedure in this state that upon a motion by defendant for a directed verdict the trial court must give the evidence offered by plaintiff, with all reasonable inferences that may be drawn therefrom, “the most favorable construction and interpretation of which it is susceptible.” Bauer v. Cleveland Ry. Co., 141 Ohio St., 197, 47 N. E. (2d), 225.

' On the record before us it appears that plaintiff has introduced some evidence of a credible and substantial character tending to establish. the negligence of defendant as the proximate cause of the injury and damage complained of. Construing this evidence most strongly in favor of plaintiff, we come to the conclusion that plaintiff, at the conclusion of his testimony, had made out a prima facie case of negligence against the defendant. A jury question being presented, it was incumbent on the trial court to overrule the motion of defendant for a directed verdict. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246.

The cases relied on by defendant appear to be distinguishable on the facts from the instant case. We have considered also the doctrine of reasonable anticipation of danger urged by defendant as a standard of diligence. The facts and circumstances presented when plaintiff rested his case were hardly of such character as to preclude a person of ordinary prudence and care from anticipating that plaintiff and other workmen at the street intersection might be injured by the high voltage current - escaping to the boom of the crane.

- It is claimed also by defendant that the evidence tends to show negligence on the part of plaintiff. If this be true, the negligence or contributary negligence of plaintiff on the record presented here would be for the jury.

Judgment reversed and cause remanded.

Carpenter and Stuart, JJ., concur.


author: Ross, J.

text:
    Williams et al., Appellees, v. Village of Deer Park, Appellant.

      (No. 6680
    Decided May 20, 1946.)

      Messrs. Burlce $ Cooney, for appellees.

      Mr. J. Louis Warm, for appellant.
   Ross, J.

This is an appeal on questions of law from a decree of the Court of Common Pleas of Hamilton county, granting ^an injunction whereby the defendant was enjoined from interfering with plaintiffs in completing the construction of a certain building in conformity with a permit issued by the Hamilton county building inspector.

A petition, amended answer and reply were filed. The defendant made a motion for judgment on the pleadings before any evidence was introduced by either party. On this motion of the defendant, the trial court rendered final judgment for the plaintiffs. It is stated in such judgment that the cause came on to be heard upon the motion of the defendant for judgment on the pleadings. It is further stated that the court found that the parties were in agreement upon the essential facts. As will later appear, such is not the case. The court then stated: “The court finds on the issues joined for the plaintiffs, and the plaintiffs are entitled to the relief prayed for.” (Emphasis added.) The court then proceeded to enter judgment enjoining the defendant from interfering with the plaintiffs.

The plaintiffs had filed no motion for judgment on the pleadings, and there is no recital in the judgmeat entry that the defendant did not desire to plead further. In view of the issuable facts existing in the pleadings, the plaintiffs would not have been entitled to such judgment, even if they had filed such a motion. It cannot be considered that the defendant by filing such motion automatically caused a similar motion for judgment on the pleadings to be considered by the court in favor of the plaintiffs.

The court upon the state of the pleadings, upon defendant’s motion for judgment, had only two courses open to it, i. e., to overrule the defendant’s motion or grant it. Certainly, there was no power in the court to render judgment for the plaintiffs upon defendant’s motion for judgment on the pleadings, in the absence of a statement by defendant that it did not desire to plead further.

The judgment of the court is prejudicially erroneous as against the defendant and must be vacated. A question, however, remains: Was the defendant entitled to judgment on the pleadings? This question is now considered.

The effect of the motion of the defendant is to admit the well pleaded facts in the petition and reply, and such facts are to be construed most favorably to the plaintiffs. The plaintiffs also are entitled to the advantage of any well pleaded facts alleged in the answer, which may aid them and which are not denied by the plaintiffs.

Where, however, the plaintiffs have denied facts alleged in the answer, it would be permitting an inconsistent position to allow the plaintiffs to claim any advantage from such controverted facts. Certainly, the plaintiffs may not deny such facts and still assert they are true. Such allegations involve issuable facts, issues which must be presented to the trier of the facts. 31 Ohio Jurisprudence, 876, et seq.

From such a view of the pleadings, it appears that the plaintiffs in their petition allege that they, in September 1945, purchased a certain parcel of ground in Concord Park subdivision for the purpose of constructing thereon a building to be used for business purposes; that they employed an architect who prepared plans and specifications for such building; that plaintiffs entered into a contract with a builder for the erection of such building; that the basement of such building has been excavated and the footings completed; that other materials have been ordered; and that delivery thereof must be immediately accepted by plaintiffs or their commitments for the same will be lost.

It is further alleged in the petition .that, prior to January 25, 1946, such parcel of ground, so purchased by plaintiffs, was not located within the corporate limits of any village or city; that on such day an area including such parcel of ground was annexed to the village of Deer Park, the defendant in this case; and that upon the same day the defendant adopted a ‘ stop gap” zoning ordinance restricting the construction of buildings on the lands so annexed (including the plaintiffs’ property) “to residential property.”

Plaintiffs further state that on January 21, 1946, prior to such annexation of such area and the adoption of such zoning ordinance, the plaintiffs filed with the Hamilton county building inspector an application for a permit to construct a building on the premises in accordance with the plans and specifications prepared by their architect, and submitted such plans and specifications with their application for permit; that on January 24, 1946, such building inspector issued to the plaintiffs a permit authorizing the construction on such parcel of ground of a building, to be two stories high and to contain storerooms on the first floor and two apartments on the second floor; and that on January 25, 1946, the marshal of the village, acting under such “stop gap” ordinance, ordered the plaintiffs to cease further construction of such building and threatened arrest if plaintiffs failed to comply with such order.

The defendant filed an amended answer containing many allegations all of which are denied by plaintiffs in their reply except the allegation in the answer that the plaintiffs did not apply to the defendant or its building inspector for a permit to erect any structure upon plaintiffs’ property.

The contention of the plaintiffs is that by virtue of the permit issued to them by the building inspector of the county, who had jurisdiction of the premises prior to the annexation by defendant, they acquired a vested right to proceed with the construction of the building, even though in violation of a “stop gap” zoning ordinance of the village later adopted on the day the annexation was perfected, it not appearing or being alleged that such building would interfere with or be detrimental to the health, morals, or safety of any person.

The position of the defendant is that after annexation the permit issued by the county inspector had no effect whatever and that it became incumbent upon plaintiffs to request a permit from the village and, it being admitted they did not do so, their prayer for injunction should be refused.

The plaintiffs admit that the construction of the building contemplated by them would be in violation of the “stop gap” ordinance “adopted” by the village on the date of annexation of the area here involved. It is further admitted by plaintiffs that no permit to erect any kind of structure was requested of the village authorities, but it is not admitted by plaintiffs that any ordinance of the village required or now requires such permit.

The defendant has alleged the terms of such an ordinance in its amended answer and the necessity for a permit, but such allegations are denied in the reply, hence, the terms of such ordinance and the fact that a permit is required may not be considered in favor of the defendant upon its motion for judgment on the pleadings, involving issuable facts. Central Community Chautauqua System v. Rentschler, 31 Ohio App., 525, 166 N. E., 698.

The net result of all this is that the plaintiffs, acting under a permit from the county building inspector, are trying to construct a building which by a“stop gap” ordinance of the village, adopted upon the date of annexation, is forbidden to be constructed in the zone in which the plaintiffs’ property is located. What a “stop gap” ordinance is does not appear from the admitted fact. The plaintiffs have admitted the existence of such an ordinance forbidding the erection of the type of building contemplated. While the question of permit from the village is not an issue, since there is no allegation to this effect by plaintiff, this court may consider, in view of the denial by plaintiffs that a permit- is required, that it may be presumed that the village would not issue a permit in violation of the terms of such “stop gap” ordinance. What then is the effect of the mere allegation of the existence of snch an ordinance upon the rights of ¿he plaintiffs under their permit issued by the county authorities the day before annexation?

The plaintiffs seek to enjoin the enforcement of this; ordinance by the village. The day before this ordinance was adopted the plaintiffs were proceeding lawfully. If the mere existence of such an ordinance is effective to make such procedure unlawful, then they are not entitled to an injunction, and the motion of the' defendant should have been granted.

A question almost identical in principle with that here involved was considered by the Court of Appeals of the Eighth Appellate District in the case of Cahn v. Guion, Commr. of Bldgs., 27 Ohio App., 141, 160 N. E., 868, decided May 30, 1927. Judge Vickery wrote the opinion which was concurred in by Judge Sullivan, Judge Levine dissenting. In that case, a permit granted by the city of Cleveland was later revoked under the provisions of a “stop gap” ordinance. The case is similar to the one here considered, in that the permit was obtained just before the dead line when the “stop gap” ordinance became effective. That case also resembles the instant case in many other respects. The majority of the court held that a permit issued by the building inspector, after a “stop gap” ordinance was adopted but before it became effective, could be revoked, and the ordinance restricting building of stores enforced. The reasoning of Judge Vickery at pages 145 and 146 of the opinion is directly pertinent, and all the contentions of the plaintiffs in this action were considered and answered adversely to them. In an exhaustive note in 86 A. L. R., 685 et seq., in which the Cahn case is noted, a number of cases are cited bearing upon the instant question.

It appears from those cases that the extent of operation and commitment under and after the issued permit has a direct bearing upon the rightJ;o enforce the new restrictive ordinance.

It is not alleged by plaintiffs that they incurred expense after they received the permit from the county, nor can any justifiable inference be drawn to such effect from the allegations. As the plaintiffs deny the terms .of the “stop gap” ordinance alleged in the answer, this court does not have such terms of the ordinance before it. As before stated, the ordinance may be considered as forbidding the erection of the type of structure proposed by plaintiffs — they having so pleaded.

In State, ex rel. Fairmount Center Co., v. Arnold, 138 Ohio St., 259, 34 N. E. (2d), 777, 136 A. L. R., 840, decided May 21, 1941, the Supreme Court held in the first paragraph of the syllabus:

“A municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application for such permit. ’ ’

It is apparent there that the municipality endeavored to advance the effect of a pending permanent ordinance. Just what the “stop gap” ordinance here involved was, or what it attempted to do, cannot be considered. All that is apparent by the motion for judgment is that the ordinance was “adopted” and pro-, hibited the structure of which complaint is made. That it was legally passed and was an effective law is not denied by plaintiffs. Again referring to plaintiffs’ admission — the ordinance was “adopted” and may be considered to be effective on the day of annexation. Had this matter been presented upon a stipulation of facts, this court could definitely pass upon a number of questions which are suggested hut which may now he reached only by the employment of conjecture and speculation.

It may be considered, however, - that the plaintiffs are attempting to erect a structure which is definitely prohibited by an ordinance of the village “adopted” the day the .village acquired jurisdiction over the property of the plaintiffs by the perfection and completion of annexation proceedings. It may, therefore, be considered that the court has before it the question of whether the plaintiffs may place reliance upon their permit received from the county building inspector as giving them a status which cannot be affected by a valid village ordinance.

It may be considered also, from the factual allegations under consideration, that the annexation of the area involved and the adoption of the ordinance were simultaneous; and that such ordinance became effective at once under the provision of Section 4227-3, General Code, and was adopted as provided in Section 4224, General Code.

In State, ex rel. Bolce, v. Hauser, 111 Ohio St., 402, 145 N. E., 851, the court there considered the right of a municipality to exempt from the operation of a zoning ordinance those who had applied for or received permits under a previous regulation. At page 408 of the opinion in that case, it is stated:

“The principal question presented is whether the city council at the time of the passage of the zoning ordinance had the power to make a classification which would exempt those who had applied for or secured permits prior to or at the time of its adoption. If there be a real basis for such classification, and if the same be not unwarranted, or arbitrary, the city council undoubtedly could recognize such class and exempt it from the operation of the zoning ordinance.”

If the Supreme Court considered such a question, it seems it must have done so upon a predicate that the zoning ordinance, without the exception,' would have destroyed the effect of the previously granted permits. It seems, therefore, even clearer that the municipality has power to ignore a permit which was granted by authority of the county before annexation.

Section 3574, General Code, relied upon by the plaintiffs, has no application to the instant matter, in that such section applies to annexation of property in one corporation to another corporation.

The applicable section is Section 3564, General Code, which provides:

“When the annexation of such described territory has been completed, it shall be deemed a part of the municipal corporation, and the inhabitants residing on the territory shall have all the rights and privileges of the inhabitants residing within the original limits of the corporation.”

The question of the incurring of expense or proceeding'to complete a structure under and after a permit is not involved. No such allegation appears to be made by plaintiffs. The fact is the permit was granted on January 24,1946, and on January 25, the annexation became effective and the ordinance was admitted by the petition to be then operative.

In view of the statutory provisions and necessary requirements as to publicity, the plaintiffs had due notice of the possibility at least' of advance legislative requirements as to zoning. Although this would not have affected their legal right to a permit under applicable regulation, it may be taken into consideration in their appeal to a court of chancery to grant them relief.

It is to be noted further that the statute under which the plaintiffs applied to the county for a permit (Section 2480, General Code, effective September 5, 1941) applies only to “residential buildings,” and that the plaintiffs in their petition state “that the purpose of said purchase was to construct thereon a building for business purposes.” While it is also stated in the petition that only the lower floor is to be used for nonresidential purposes, it is also apparent that the provision of the ordinance, as alleged in the petition, restricts “the construction of buildings on the lands annexed including £he above described property to residential property.”

It is also apparent from a reading of Section 2480, General Code, that only building regulations as applied to health and safety are therein considered, and such section of the General Code has no application or reference to zoning provisions. It would appear, therefore, that the plaintiffs acquired no vested rights under such a permit and that their property became amenable to a zoning ordinance which came into existence concurrently with the annexation of plaintiffs’ property, and, it not appearing that plaintiffs would suffer any great injury by enforcing such ordinance or that they had incurred any expense by virtue of and after the issuing of the permit from the county but it appearing that they had, under statutory requirements, due notice of the imminence of annexation, such permit constitutes no bar to enforcing the ordinance of the village.

The motion of the defendant for judgment on the pleadings should have been granted, and this court orders the decree entered in this court, which the trial court should have entered, in favor of the defendant.

Judgment accordingly.

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