author: By the Court.

text:
    Snyder, Admr., Appellee, v. Rowe et al., Appellees; LePontois et al., Appellants.
    (No. 1442
    Decided November 15, 1943.)

      Mr. Kenneth M. Petri, for appellee William R. Snyder, Administrator.

      Mr. Dean C. Talbott, for appellees Arlo Rowe and others.

      Mr. Walter C. Bohrbacher and Mr. Charles F. Schaber, for appellants;
   By the Court.

This is an appeal upon questions of law, from a judgment of the Court of Common Pleas of Crawford county, Ohio.

The action is for declaratory judgment. It was brought by William R. Snyder, administrator of the estate of Edith A. Seeman, deceased, against Arlo Rowe, Neva R. Barg, Dorothy Post, Walter B. Snyder and William R. Snyder, heirs at law of Ed. W. Seeman, deceased; the unknown heirs at law of Ed. W. See-man and Edith A. Seeman, both deceased; and Helen LePontois, Harold J. Seeman, Lela Randall, Roy Linton, Ida Hothem Weaver, John C. Hothem, Harry Hothem, Victor Hothem, Edwin Hothem, lone Hothem, Elma E. Whitmer, Herman E. Seeman, Dennis Deible, Leslie Deible, and Henry Mayer, heirs at law of Ed. W. Seeman, deceased.

While the pleadings present a number of matters as to which a declaratory judgment, was asked, and while the declaratory judgment rendered by the Common Pleas Court constitutes a declaration of rights on all the matters presented by the pleadings, the appellants, who are the heirs at law of Ed. W. Seeman, have in their assignments of error and briefs, limited their claims of error to the claim that the declaratory judgment rendered by the Common Pleas Court is contrary to law insofar as it declares that a certain promissory note, in the principal sum of $3,500 with an indorsement thereon of the payment of $500, among the effects of Edith A. Seeman, signed and executed by Harold J. Seeman and payable to the order of Edith A. Seeman, is not property which came to Edith A. Seeman, relict of Ed. W. Seeman, from her deceased spouse and consequently is not property which passes, under the provisions of Section 10503-5, General Code, one-half to the heirs of Ed. W. Seeman and one-half to the heirs of Edith A. Seeman.

Our consideration of this appeal will therefore be limited to this claimed error.

The facts material to a consideration of this appeal, disclosed by the bill of exceptions, are as follows:

Ed. W. Seeman, also known as E. W. Seeman, husband of Edith A. Seeman, died intestate February 15, 1933, survived by his widow but leaving no parent or children or their legal representatives surviving him.

Edith A. Seeman died intestate on-the 14th day of August, 1941, leaving no parent or children or their legal representatives surviving her.

William R. Snyder, plaintiff, was appointed administrator of the estate of Edith A. Seeman on the 1.8th day of August, 1941.

Ed. W. Seeman and Harold J. Seeman were partners engaged in carrying on a drug business and store in the city of Galion and the partnership and business were in existence at the time of the death of Ed. W. Seeman.

No administration of the estate of Ed. W. Seeman was had, and there were no proceedings as provided for by Sections 8085 to 8098, General Code, prescribing the method of winding up the affairs of a partnership upon the death of a partner.

On April 3, 1933, subsequent to the death of Ed. W. Seeman, Edith A. Seeman, by written instrument in which she is described as “widow and next of kin and heir at law of Ed. W. Seeman, deceased,” for a purported consideration of $1 and other good and valuable considerations, but actually for a consideration of $3,500, evidenced by the note in question and payable as therein provided, did “grant, sell, transfer and set over to H. J. Seeman, partner, all the goods, wares, stock in trade, fixtures, merchandise, accounts receivable, mortgage of F. E. Barr, furniture in said store of E. W. Seeman & Go., radio tubes and testor all of which are located and situated in the Retal Drug Store, heretofore owned and operated by E. W. See-man & Go., Galion, Ohio, and together with the good will established by said company. ’ ’

In such instrument, Edith A. Seeman covenanted with H. J. Seeman that the stock in trade, fixtures, etc., were free and clear of all incumbrances and that she had good right to bargain and sell same.

Harold J. Seeman paid to. Edith A. Seeman during her lifetime, $500 of the principal of the note, together with the interest to January 1, 1941; and on May 21, 1942, paid the balance of $3,208.75 owing on the note, to William R. Snyder, administrator of the estate of Edith A. Seeman.

Section 10503-5, General Code (116 Ohio Laws, 389), in effect at the time of the death of Edith A. Seeman, upon the provisions of which the lawfulness of the declaration complained of depends, was as follows:

“When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such relict from any deceased spouse, by deed of gift, devise, bequest or descent, then such estate, real and personal, except one-half thereof which shall pass to and vest in the surviving spouse, if any, of such relict, shall pass to and vest in the children of the deceased spouse from whom such -real estate or personal property came, or the next of kin of deceased children. If there are no children or next of kin of deceased children, then such estate, real and personal, except for the one-half passing to the surviving spouse, if any, of such relict, shall pass and descend one-half to the brothers aiid sisters of such relict, or the next of kin of deceased brothers and sisters, and one-half to the brothers and sisters of the deceased spousé from whom such real estate or personal property came, or the next of kin of deceased brothers and sisters.”

In the case of Guear v. Stechschulte, Admr., 119 Ohio St., 1, 162 N. E., 46, the Supreme Court held that the provisions of Section 8577, General Code (110 Ohio Laws, 15), similar to the provisions of Section 10503-5, General Code, above set forth, were applicable only to the identical property which comes to an intestate from a former deceased husband or wife, and have no application to property acquired by such intestate after the death of the former deceased husband or wife even though such property is purchased from the proceeds of property coming from such former deceased husband or wife, or is the increase or accumulations of such property.

The same holding was made in the case of Wilson v. Eccles, 119 Ohio St., 184, 162 N. E., 797.

In the case of Knauss, Admr., v. Knauss, 58 Ohio App., 183, 16 N. E. (2d), 483, in which the provisions of Section 10503-5, General Code, above set forth, were under consideration, the same holding was made as in the abpve cases.

In the light of these holdings, the question to be determined in the instant case, both Ed. W. Seeman and Edith A. Seeman having died intestate, is whether the promissory note, above mentioned, is the identical property which came to Edith A. Seeman from her former husband, Ed. W. Seeman.

As the statutory method, prescribed in Sections 8085 to 8098, General Code, of winding up the affairs of the partnership upon the death of the partner, was not resorted to in the administration of the estate of Ed. W. Seeman, the rights of the parties interested therein are governed by the rules of common law.

At common law the surviving partner, in the absence of a contract to continue the partnership after-the death of the deceased partner, has the sole right to wind up the business. Addams & Hosford’s Ohio Probate Practice (3 Ed.), 378. For many purposes a surviving partner is considered tbe legal owner of all tbe property and assets belonging to tbe partnership, with power to sell or transfer them. The heirs of the deceased partner have no interest, as such, in the property of the firm. Their only remedy is to compel the surviving partner to account for the surplus after the settlement of all the partnership liabilities. 40 American Jurisprudence, 335, Section 296. However the right to compel an accounting is not the only right the heirs of the deceased partner have at common law in relation to the partnership property. In addition to this right, they have interests as distributees therein which they have a right to assign irrespective of whether an administrator is appointed for such deceased partner’s estate.

In the instant case, Edith A. Seeman, as the sole heir of Ed. W. Seeman and sole distributee of his estate, had the right under the common law to compel Harold J. Seeman as surviving partner of the firm of E. W. Seeman & Company to account for the surplus after the settlement of all the partnership liabilities, and also had the right under the common law to sell and assign her interest as a distributee of such estate in the partnership property.

If she had exercised her right to compel an accounting, and the note in question had been received by her as a result of such accounting, it would have constituted a payment to her of her distributive share in the estate and would have been the identical property. which came to her from her deceased husband. But as shown by the statement of facts, she did not exercise her right to compel an accounting, but instead exercised her right to sell and assign her interest, as a distributee in the estate, in the partnership property, and the note received by her was the consideration for such sale and did not constitute a distributive share in the estate.

As the note did not constitute a distributive share in the estate, it is not identical personal property which came to her from her deceased spouse by descent, within the purview of Section 10503-5, General Code, and the judgment of the Common Pleas Court so holding’ is not contrary to law.

For the reasons mentioned, the judgment of the Common Pleas Court will be affirmed at costs of appellants.

Judgment affirmed.

Guernsey, P. J., Jackson and Middleton, JJ., concur.


source: Caselaw Access Project

author: Doyle, J. Washburn, J.,

license: Public Domain

text:
    Kurth, Admx., Appellee, v. Krumme, Appellant.

      (No. 3600
    Decided November 22, 1943.)

      Mr. D. D. Silashki and Mr. Carl M. Myers, for appellee.

      Mr. Walter Selegtie and Mr. T. W. Kimber, for appellant.
   Doyle, J.

There is evidence in the record before ns which justifies the conclusion that the appellee’s decedent bought smoked pork sausage, commonly known as metwurst, from the appellant, Karl Krumme, which contained a parasite known in science as Trichinella spiralis. The sausage was manufactured by the appellant from fresh pork (which contained the parasite) purchased by him from a dealer; the process of manufacture consisted in grinding the fresh pork, mixing it with various condiments, forcing it into gut casings, and then smoking it for a length of time; if was then sold in the trade. The ingestion of the sausage by the appellee’s decedent in the smoked state in which it was sold resulted in a condition known as trichinosis, from which the appellee’s decedent died.

The pleadings of the appellee charged a violation of the pure food statutes, and the defense inter alia charged contributory negligence. A judgment was entered for damages for the petitioner following a jury-verdict, and the appeal to this court is from that judgment.

Does the sale of pork sausage of the kind in question which contains this parasite, in and of itself constitute a statutory violation? If it does the appellant is guilty of negligence as a matter of law.

The common name of the parasites is trichinae. They are extremely small and are not seen except upon microscopic examination. Even then they are likely to escape detection. The parasites cause hogs that survive the disease no particular inconvenience so far as can be judged from the external appearance of these animals, and when pork from affected hogs is cooked or frozen, as hereinafter explained, the organisms are not dangerous. But failure to cook or to freeze affected pork may, if eaten by humans, result in a condition known as trichinosis and may be fatal. Government inspection under our present system does not include the necessary miscroscopic examination to determine the presence of the organism. The temperature for safe cooking is between 132 and 136 degrees Fahrenheit, and effective freezing must be approximately 5 degrees Fahrenheit for a period of two weeks.

The Ohio statute, Section 12760, General Code, provides :

“Whoever sells, offers for sale or has in possession with intent to sell, diseased, corrupted, adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined * * (Italics ours.)

Section 5774, General Code, is:

“No person, within this state, shall manufacture for sale, offer for sale, sell or deliver, or have in his possession with intent to sell or deliver, a drug or article of food which is adulterated within the meaning of this chapter, or offer for sale, sell or deliver, or have in his possession with intent to sell or deliver, a drug or article of food which is misbranded within the meaning of this chapter.”

Section 5778, G-eneral Code; defines adulterated food as follows:

“Food, drink, confectionery or condiments are adul-. terated within the meaning of this chapter * * * (5) if it consists wholly, or in part, of a diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable’ substance or-article, whether manufactured or not or in the case of milk, if it' is the product of a diseased animal * * *.”

The Supreme Court of this state affirmed, without opinion, a judgment of the Common Pleas Court of Portage county bottomed upon the sale of pork containing trichinae. Allen v. Marvin, Admr., 46 W. L. B., 208; affirmed, Allen v. Marvin, Admr., 64 Ohio St., 608, 61 N. E., 1139, and approved and followed in the second paragraph of the syllabus of Portage Markets Co. v. George, 111 Ohio St., 775, 146 N. E., 283.

The United States Circuit Court of Appeals, Sixth Circuit, following the principles in the above cases, reversed a judgment of the District Court of the United States for the Northern District of Ohio, and in its decision determined that “pork that- is infected with trichinella is diseased within the meaning of the Ohio Pure Foods Law. * * * Its sale, even when the seller has no knowledge that it is diseased or infected, violates the statute and the seller is negligent in law.” Troietto v. G. H. Hammond Co., 110 F. (2d), 135.

The members of this court are of the opinion that the above and hereinafter cited cases of the Supreme Court of Ohio have foreclosed the question in this state as to the construction to be given the statutes.

We therefore conclude that the facts in the present controversy bring the case within the principle of the decisions cited, and that smoked pork sausage, commonly known as metwurst, infected with trichinella is diseased within the language of the statute, and its sale by the appellant in this case, even though he had no knowledge of the presence of the parasite, or could not with reasonable diligence have ascertained it, constituted a violation of the statute. Under the statute he is an insurer of the wholesomeness of his product.

The original and amended pure food laws were enacted to protect the public generally against the harmful consequences attendant upon the sale of diseased food. To accomplish that end, amendments of the original act require the seller- at his peril to know that the food which he offers for sale is not diseased. And in civil actions growing out of a violation of pure food statutes, the law is well settled that a proved violation constitutes negligence per se. Allen v. Marvin, Admr., supra; State v. Kelly, 54 Ohio St., 166, 54 N. E., 163; Schell v. DuBois, Admr., 94 Ohio St., 93, 113 N. E., 664; Portage Markets Co. v. George, supra; Great A. & P. Tea Co. v. Hughes, 131 Ohio St., 501, 3 N. E. (2d), 415; Yochem v. Gloria, Inc., 134 Ohio St., 427, 17 N. E. (2d), 731; and Rubbo v. Hughes Provision Co., 138 Ohio St., 178, 34 N. E. (2d), 202.

It is also established that, in a civil action against a seller of diseased meat, if the evidence justifies, contributory negligence becomes an issue.

“2. The violation of the pure food laws of this state by the sale of unwholesome meat is negligence per se, and may be the basis of recovery for damages by the user of said unwholesome meat, who suffers injury prosimately resulting therefrom, provided the user is not himself guilty of negligence in the care, preparation, cooking, or in any other manner which contributes directly to his injury.” (Italics ours.) Portage Markets Go. v. George, supra.

We are not confronted in this case with a situation in which the injured person ate raw pork chops or raw pork steak, which condition was perfectly apparent 'to the eye. Our case shows that the food consumed was partially smoked and.encased in gut; that some people ate it without cooking or further preparation, as is so frequently the case with bologna, summer sausage, etc. Under these circumstances, we are of the opinion that a jury question was presented as to whether or not plaintiff’s decedent was guilty of contributory negligence; and that the eating of this particular product in a smoked, raw state was not such a circumstance as to permit it to be said that reasonable persons could conclude only that such eating constituted a lack of ordinary care and therefore negligence. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246.

In conclusion, we find that the trial court properly submitted the issues of negligence and contributory negligence to the jury, and the verdict returned we find not to be manifestly against the weight of the evidence. Likewise, we have examined other claimed errors, and we find none prejudicial to the rights of the appellant.

The judgment is affirmed.

Judgment affirmed.

Stevens, P. J., concurs.

Washburn, J.,

concurring in judgment: I fully concur in the foregoing judgment, but I desire to emphasize the fact that the article of food involved in this action was a prepared, or processed, article, which the seller testified he knew was eaten by some people, including himself, in the condition in which it was sold, and without cooking. The case does not involve simply the sale of raw pork, such as a pork chop, which, as a matter of common knowledge, should be and usually is cooked before eating.


author: Stuart, J.

text:
    Keller, Appellant, v. The Ohio Public Service Co., Appellee.
    (No. 576
    Decided October 18, 1943.)

      Messrs. Young & Young, for appellant.

      Messrs. Flynn, Frohman, Buckingham, Py & Kruse, for appellee.
   Stuart, J.

This case is in this court on appeal on questions of law from the judgment of the Court of Common Pleas in favor of the defendant and dismissing plaintiff’s petition after it sustained a demurrer thereto and plaintiff had stated that he did not desire to plead further.

The petition alleged that the defendant, on June 19, 1941, was engaged in selling and distributing electricity and had erected a series of poles on the public highway named in the petition; that the pole on which the incident stated in the petition occurred had been erected and there maintained by the defendant for several years and was equipped with transformers and wires containing electricity in the quantity and amount of 7,200 volts; and that such pole had no warning or notice thereon of any danger. It is further alleged that on that day a squirrel that had escaped from its owner, who lived in the vicinity of this pole, had, a day or two before the date in question, gone up this pole and occupied the transformer or place where the transformer was housed; that plaintiff in an attempt to capture and return the squirrel to its boy-owner, placed a ladder against the pole and ascended it, and observing that the squirrel was in a good-sized bird nest located in such transformer and out of reach of the plaintiff, undertook to descend to the ground; and that he had stepped down either two or three rounds of the ladder “when the squirrel in an undertaking to escape from said pole in some manner caused a short circuit of the wires whereby in some manner a powerful charge of electricity escaped from the wires and struck this plaintiff, inflicting very serious injuries.” The petition is silent as to the fate of the squirrel.

In the case of Hetrick, Admx., v. Marion-Reserve Tower Co., 141 Ohio St., 347, 48 N. E. (2d), 103, in which the facts are very similar to those in the instant case, except that the plaintiff’s decedent was a public employee properly engaged in grading the highway in which the utility pole was located, the Supreme Court says, on page 356:

“We think that the presence of these suspended wires, in and of themselves, is a warning to the adult public of potential danger.”

And again, on page 360:

“ * * * Can it be said that the power company would or should reasonably have anticipated that any person traveling by vehicular equipment upon this mud roád, would accidentally get such equipment into the ditch and knock down the pole, and that the person so traveling would then with a hammer attempt to break the glass insulator for the purpose of disengaging the wire which suspended the pole upon the grader? We do not think that the power company should be held negligent for failing to foresee or to reasonably anticipate such a result.”

In that case, the decedent was lawfully and properly in the vicinity of the pole and accidentally came in contact with it. Here, the plaintiff of his own volition contacted the pole, trespassed upon the defendant’s property and deliberately placed himself in a position of danger. He assumed the risk. To say the least, the fácts establish that but for his act the incident would not have occurred.

It is elemental that one owes no duty to a trespasser upon his property, except not to wilfully injure him.

We do not think the defendant should be held negligent for failing to foresee that an adult person would go squirrel-hunting upon its pole and that the squirrel, alarmed by the pursuit, would short circuit its wires lawfully installed thereon, nor for failing to reasonably anticipate such a result. •

Judgment affirmed.

Lloyd and Carpenter, JJ., concur.


author: Hornbeck, J.

text:
    In re Estate of Erbaugh: Van Horn et al., Appellees, v. Erbaugh, Admx., Appellant.

      (No. 1745
    Decided February 26, 1943.)

      Messrs. Jacobson & Durst, for appellees.

      Messrs. Marshall, Harlan & Marshall, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from an order of the Probate Court authorizing the appellees to present their claims against the estate of Jack Erbaugh, deceased. The errors assigned are in the admission of certain evidence offered on behalf of appellees; and in granting and allowing the petition of appellees to present and file claims against the estate of Jack Erbaugh, deceased, with the administratrix of such estate, appellant herein, more than four months after the appointment of the administratrix.

The pertinent facts are:

The decedent, Jack Erbaugh, was the son of Dr. Gf. L. Erbaugh and.Mary H. Erbaugh. Dr. Erbaugh was the insured in a policy of indemnity insurance with the State Automobile Mutual Insurance Company. On January 26, 1941, Jack Erbaugh was driving the automobile of his father when it collided with an automobile in which the appellees, Russell Van Horn and Caroline M. Van Horn, his wife, were riding, resulting in property damage to their automobile and personal injuries to both of them. It is claimed that by the terms of the policy it also indemnified J ack Erbaugh while he was driving the automobile of his father, the insured.

On March 28, 1941, Jack Erbaugh was killed. On April 19, 1941, Mary H. Erbaugh, mother of J ack Erbaugh, was appointed administratrix of his estate by the Probate Court of Montgomery county. The estate was settled on November 1,1941. The total assets were less than the amount of the only claim presented against the estate.

On January 19, 1942, nine months after the appointment of the administratrix of the estate of Jack Erbaugh, deceased, an application was presented to the Probate Court of. Montgomery county, Ohio, seeking to have the estate opened up for the purpose of fully administering the estate. This application was granted and on the same day a petition was filed on behalf of the appellees, setting up their claims for damages suffered by reason of the collision with the Erbaugh automobile and seeking authority from the court to present their claims against the estate, for the reason that they did not know of the appointment of an administratrix for such estate until the date of the filing of the petition.

The matter came on for hearing, the appellant being-represented by A. McL. Marshall of the firm of Marshall, Harlan & Marshall, which firm, counsel for appellees insisted, was representing- the State Automobile Mutual Insurance Company and not the appellant. The appellant, during the proceedings incident to the administration of the Jack Erbaugh estate, had been represented by other counsel, Clifford R. Curtner.

Marshall stated to the court, professionally, “I am here appearing on behalf of Mrs. Erbaugh and anybody else who has any interest in the matter.”

The court permitted full disclosure of the transactions between the appellees and the agent of the insurance company, subsequent to the collision in which appellees were involved. It appeared that the insurance company had negotiated at length with the appellees, had taken their statements, had investigated the property damage to Mr. Van Horn’s automobile, and had caused the company doctor to examine Mrs. Van Horn as to the nature and extent of her injuries. The amount of the adjustment of the claims of the appellees had been discussed with the agent of the company. It appeared that Dr. and Mrs. Erbaugh (Mrs. Erbaugh later being the administratrix), knew of the injuries suffered by the appellees, having seen them on the night of the collision shortly after its occurrence. Appellant testified that she knew that the appellees had presented a claim to the insurance company for injuries and property damages growing out of the collision which was being investigated by the company, although she stated that she did not know that the claims of the appellees were being taken care of and investigated after her appointment as administratrix.

The petition sets out at length the relationship of the insurance company to the claims of the appellees, the presentation of such claims to the company, and the negotiations between the appellees and the company. The prayer of the petition is that, if the pleaded facts do not constitute a due presentation of petitioners’ claims against the estate of the decedent, or a waiver thereof, the court reinstate their claims against the estate of the decedent. A hearing was held in May, 1942, and, on August 1, 1942, the court made its order, granting the prayer of the petition, in the following language:

“It is, therefore, by the court considered, ordered, and adjudged that the petition of Caroline M. Van Horn and Russell Van Horn asking this court for authority to now present their claim against the estate of Jack Erbangh, deceased, is hereby granted and allowed, and each of them is hereby authorized to now present his or her claim to the administratrix * *

The first error assigned is the admission of any testimony respecting the transactions between the insurance company and the appellees.

There was under the averments of the petition at issue but one material fact incumbent upon appellees to establish, namely, that they did not have actual notice of the appointment of the appellant in sufficient time to present their claims within the period prescribed by law. We hereinafter discuss this question. Obviously, none of the testimony respecting the relation of the insurance company to the claims of the appellees was of any probative effect on the narrow question at issue. The court, therefore, erred in admitting this testimony. However, it is evident that inasmuch as it had nothing whatever to do with and reflected not at all upon the issue, it could not have been prejudicial to the appellant.

The next assignment of error which may be divided into two parts is that the court, as a matter of law, erred in granting the order as prayed for by the appellees.

It is asserted that the appellees failed to meet the requisites of proof set out in the Section 10509-134, General Code, which provides:

“A claimant who has failed to present his claim to the executor or administrator within the time prescribed by law may file a petition in the Probate Court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing, * * *. If upon hearing the court finds (a) that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law, or (b) that the claimant’s failure- to present his claim * * * was due to any wrongful act or statement on the part of the executor or administrator or his'attorney, or (c) * * *, then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period; provided, however, that a claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, * * * and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims * *

The petition avers that the appellees did not have actual notice of the appointment of the appellant, in sufficient time to present their claims within the period prescribed by law. The appellees assert that their proof tended, also, to show that their failure to present their claims was due to a wrongful act or statement on the part of the appellant or her attorney. This latter claim is made the basis for insistence that the testimony relating to the transactions with the insurance company was admissible. The petition, in our judgment, does not aver any wrongful act or statement on the part of the appellant and did not support the admission of the testimony.

The aforesaid section provides in part:

“If upon hearing the court finds (a) that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law, * * * then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period.”

As we understand it, the claim of appellant is, that if either condition in clause (a) appears, the court may not authorize the petitioner to present his claim. We agree that clause (a) may be read as if preceded by the correlative, either, and in the alternative. However, that which precedes clause (a) is vitally important, i. e., “If upon hearing the court finds * # That is to say, the burden being upon the petitioner, “if * * * the court finds” either, that the claimant did not have actual notice of decedent’s death or finds that the claimant did not have notice of the appointment of the administrator, etc., then, he may authorize the presentation of the claim.

The section would bear the construction claimed- by appellant, if it read, “If the court finds that claimant had knowledge of the appointment of the administrator or executor, etc., he may not permit the filing of the claim,” or, if the phrases were connected by the conjunction, “and,” expressing the general relation of connection or addition.

Appellant next asserts that the proviso of Section 10509-134, General Code, that “a claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to. all parties,” etc., precludes the presentation of a claim after the limitation period even upon court order and a fortiori prevents such court order after such period.

The trial court held that the language of the proviso refers to the presenting of the claim to the Probate Court by the filing of the petition for authority to present the claim to the fiduciary and directed attention to the fact that at two places in the section prior to the proviso, the expression is employed' “present his claim to the executor or administrator” and therefore held that, inasmuch as the language, “to the executor or administrator,” does not appear in the proviso, the word “presented” means presented to the court. The court further held that the presentation to the administratrix, under the order of the court may be made after the limitation period provided in the section.

This proviso in the section is new and no reviewing-court has spoken as to its meaning in a situation paralleling that presented in this case. Here the petition was filed on the last day of the nine-month period succeeding the appointment of the appellant. The court could not comply with the statutory provisions as to notice, time for hearing, etc., and make an order authorizing presentation of the claim to the appellant within the nine-month period. Did the court then have authority to authorize the presentation of the claim under these facts! We frankly concede that the question has given us much concern.

It is a familiar rule of construction that all parts of a statute shall be given meaning if the language employed will permit. We have .much difficulty in adopting the conclusion of the trial judge that the Section 10509-134, General Code, contemplates that the word, presentation, as employed in the proviso means presentation to the court by the petition for authority to present the claim, although such construction would relieve us of a difficult question.

At no place in the section is the expression, “presentation of claim to the court,” made. At the inception, the section speaks of the failure to present the claim to the executor or the administrator and states that under the facts set out, a petition may be filed in the Probate Court for authority to “present his claim” after the expiration of such time. Clearly this refers to a presentation of the claim to an administrator or executor. Following clause (c), the conditions are set out under which the court may authorize “such claimant to present his claim to the executor or administrator.” Then follows, “provided, however, that a claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred, etc.” A claim presented to whom? The only mention in the section of the person to whom the'claims shall be presented is the executor or administrator. The only capacity in which the court acts under the section, is pursuant to the filing of the petition. The terms are employed in Section 10509-112, General Code (119 Ohio Laws, 407), in like relation, which section begins:

“All claimants shall present their claims to the executor or administrator in writing, * # *. All claims shall be presented within four months after the date of the appointment of the executor or administrator. Every claim presented hereunder shall set forth the claimant’s address. * * * Any person whose claim has been presented and allowed * * * shall be deemed a creditor as said term is used in this chapter. Claims which are contingent need not be presented except as otherwise provided in this chapter.”

The chapter, of course, includes Section 10509-134,' General Code. It would appear that the language, in all instances speaking of claims presented or presentation of claims, implies presentation of such claims to the fiduciary.

The four-month period after the date of the appointment of the executor or administrator is the time fixed within which all claimants mentioned in the statute may, as a matter of right, file their claims. When this period has elapsed, the right to present a claim is provisional, depending upon the authorization provided by Section 10509-134, General Code. After the bar of Section 10509-112, General Code, has operated, a presentation of a claim to an executor or administrator is a vain thing and without effect because the law recognizes no such procedure. So, in the instant case, any tender of the claim of appellees to the appellant, more than four months after her appointment and before authority was granted by the Probate Court to present the claim, would have been nothing more than a gesture and without any legal force whatsoever.

Whether the appellees have complied with the requisites of the law as to the presentation of their claim, under the order of the Probate Court, within contemplation of the limitation of Section 10509-134, General Code, is of no concern in the instant proceeding because the necessity of such determination does not arise. However, inasmuch as the judgment entry authorized the presentation of the claim to the appellant now, the right to make the order in that specific form is raised on this appeal.

We are, therefore, met with the necessity of determining whether the proviso must be given effect to absolutely preclude the presentation of any claim after the nine-month period. If such construction be given, it removes from the Probate Court the jurisdiction to make any binding order which order is not made within the nine-month period. This construction should not be adopted unless the language of the statute-clearly requires it. There are many instances to which attention could be drawn which would postpone the order without fault of the claimant, beyond-, the nine-month period even though the petition was filed well within the period.

If the proviso is essentially a statute of limitation, we would not hesitate to determine that the running of the statute was tolled by the filing of appellees’ petition. The principle is broadly stated in 34 American Jurisprudence, 202, as follows:

“It is a firmly established rule that the commencement of suit prior to the expiration of the applicable limitation period interrupts the running of the statute of limitations as to all parties to the action and their privies, * * citing many applicable authorities; and in 25 Ohio Jurisprudence, 608, as follows:

“It is too elementary to need citation that the beginning of an action stops the running of the statute, ’ ’ citing Walworth v. Collinwood, 8 C. C., 477, 4 C. D., 503.

' But is this section a statute of limitation1? It is a familiar principle of law that to secure the benefit of a limitation statute it must be pleaded. In Beach, Recr., v. Mizner, Exr., reported in 52 Ohio App., 348, 3 N. E. (2d), 642 and 131 Ohio St., 481, 3 N. E. (2d), 417, the plaintiff, seeking. to recover against the estate on a claim against the decedent for a ■ balance on a stock-subscription, plead the -presentation of the claim to the executor of the estate of the deceased. This form of pleading ordinarily would be sufficient in the first instance and if the claim were barred by a statute of limitation prescribing the time within which the presentation should be made, such fact could properly be set up by way of defense. The Court of Appeals held that the petition was demurrable because it did not include an averment that the claim was duly presented within the four-month period provided by Section 10509-112, General Code, and that the same was rejected. The Supreme Court affirmed the holding that the petition wtts defective in the failure to state compliance with Section 10509-112, General Code, or with Section 10509-134, General Code, upon order of the court.

The first proposition of the syllabus in the Supreme Court is that Sections 10509-112 and 10509-134, General Code (114 Ohio Laws, 320), must be construed together. This pronouncement raises some question whether the proceeding in the Probate Court in this case was controlled by the new Section 10509-134, General Code, or by the older section inasmuch as the two Sections 10509-112 and 10509-134, as found in 114 Ohio Laws, 320, must be construed together.

The second paragraph of the syllabus recites:

“These sections are statutes of limitation (or non-claim statutes) which bar creditors’ claims unless presented to an executor or administrator within four months after the date of appointment.”

The court was considering the two sections of the statute together. There was no occasion to, and the court did not, make differentiation between the four-month limitation in Section 10509-112, General Code, and the nine-month limitation in Section 10509-134. So that there has been no adjudication to the effect that the nine-month limitation in Section 10509-134, General Code, is a nonclaim statute. The court in State, ex rel. Fulton, v. Coburn, 133 Ohio St., 192, 12 N. E. (2d), 471, and this court have referred to Section 10509-134, General Code, before the last amendment, as a limitation statute. It is our judgment that distinction may be made between the two sections and that Section 10509-112, General Code, is strictly a non-claim statute, but that the proviso in Section 10509-134, General Code, makes that section a statute of limitation. The distinction between the types of statutes is important. In 34 Corpus Juris Secundum, 182, it is said:

“It is generally held that the statute of nonclaim, when once it begins to run, continues to run, no exceptions or interruptions being allowed to intervene unless expressly provided for,” and in 21 American Jurisprudence, 590, it is stated:

“Nonclaim statutes are jurisdictional, and unless complied with the court cannot allow the claim.” Citing annotation in 117 A. L. R., 1208; Hathaway v. Merchants’ Loan and Tea Co., 218 Ill., 580, 75 N. E., 1060, 4 Ann. Cas., 164, 117 A. L. R., 1209.

An examination of all the eases cited is conclusive that in no instance was the court passing upon a statute like the proviso found in Section 10509-134, General Code, but upon strictly nonclaim statutes such as Section 10509-112, General Code.

It is clear that Weygandt, C. J., in the Beach case, supra, was referring to the statutes generally and did not give special attention to the proviso, in Section 10509-134, General Code.

It is our judgment that Section 10509-134, General Code, is a statute of limitation. The right to an adjudication of the authority to present a claim to an executor or administrator is created by the body of the statute. The proviso is a limitation on tha.t right which-limitation is tolled by institution of a proceeding within nine months after the appointment of the executor or administrator under the section.

In this connection the third paragraph of the syllabus in the Beach case is interesting and helpful:

“A barred claim may be reinstated and presented to an executor or administrator upon leave first obtained from the Probate Court in the manner provided in Section 10509-134, General Code.”

If a claimant was suing upon a rejected claim, it would be necessary only that he plead either that he had presented his claim within the time provided in Section 10509-112, General Code, or that he had presented it under authorization of the court under Section 10509-134, General Code. If the limitation clause of the statute was to be invoked, it should have been set up defensively as is proper in invoking a statute of limitation.

We are of the opinion that our construction is a reasonable interpretation in the light of the general purpose to be accomplished by the new Probate Code and upon well defined rules of interpretation.

A.n interpretation, under which the statute or section or any part thereof is nullified, should, if possible, be avoided. Probasco v. Raine, Auditor, 50 Ohio St., 378, 34 N. E., 536; Shuck v. Board of Education, 92 Ohio St, 55, 110 N. E., 533.

Section 10214, General Code, provides:

“The provisions of part third (entitled Remedial) and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.”

Although the section of the Code which we have under consideration is not found in part third of the Code, it is remedial in character and may well be interpreted in accordance with the admonition of Section 10214, General Code.

It should be noted that the authority of the appellees to present their claims under the order of the court gives them no right to reach any assets of the estate which have been lawfully paid out or distributed prior to the service upon the appellant of notice of the hearing on such petition, and such claim shall not prevail as against creditors, legatees and distributees who have received payment or distribution from the assets of the estate prior to the service of such notice. So that, in this case the only effect of the order authorizing presentation of appellees’ claims will be to operate prospectively as to any assets that may be realized from the insurance policy if appellees secure judgment against the appellant. The appellant cannot, if any liability is to be eventually asserted against the insurance company, allow the claims of appellees when presented unless by and with the consent of the company, this right being reserved in the policy. We have recently so held in the case of Treadway, a Minor, v. Tewksbury, No. 3525, Franklin county, unreported.

The right of the appellees' to present their claims totlie appellant was, by the proceeding in tlie Probate Court, determined as of the date of the filing of their petition. The order authorizing appellees to present their claims was not made for several months after appointment of the appellant, but the adjudication of their right' to present was determined as of the date of the filing of their petition.

The judgment will be affirmed.

Judgment affirmed.

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


author: Hornbecii, J.

text:
    In re Knight.
    (No. 3658
    Decided February 29, 1944.)

      Mr. Abraham Gertner, Mr. Frank J. Gollopy and Mr. Jack F. Young, for petitioner.

      Mr. Thomas J. Herbert, attorney general, Mr. D. B. Tate and Mr. Bex W. Hanna, prosecuting attorney, for the state.
   Hornbecii, J.

This proceeding in habeas corpus was originally instituted in this court by the petitioner, a prisoner in the Ohio penitentiary, and with his petition there was filed an affidavit of indigency. This court, on its own motion, brought the case to the attention of the Columbus Bar Association which, through its president, provided the counsel who have represented the petitioner throughout the presentation of the cause. Counsel filed an amended petition to which the respondent, Frank D. Henderson, warden of the Ohio penitentiary, filed his return to which is attached exhibit A, a copy of the indictment of the petitioner, exhibit B, a copy of the journal entry of his conviction and sentence, and exhibit C, a copy of his commitment.

The following facts are stipulated, subject to their materiality, relevancy and competency: “The * * * judge of the Court of Common Pleas of Hardin county, alone, sentenced petitioner to the penitentiary on the 16th day of July, 1934, on the charge of murder in the first degree for unlawfully and purposely killing Loyal W. Bean, in perpetrating or attempting to perpetrate a robbery. The case was not tried before a jury. The case was not tried by a court composed of three judges. No other judges * * * were present.” This proffered evidence will be admitted, although we are satisfied that it sets forth no facts which may not be found, or properly inferred, from the exhibits which are before the court.

The essential facts appearing are that the petitioner, during the April term, 1934, of the Hardin county Court of Common Pleas, was indicted for murder alleged to have been committed on the 26th day of May, 1934, in such county. The first count was a charge of murder in perpetrating a robbery; and the second count was a charge of murder in attempting to perpetrate a robbery. Thereafter, between the date of the return of the indictment and July 16, 1934, the exact time not appearing, the following appeared in a journal entry of the court:

“This day came the prosecuting attorney, Harry I. Kaylor, and the defendant, Richard Knight, in the custody of the sheriff with his attorney, into open court and the clerk then clearly read the indictment, who, upon being arraigned thereon for plea thereto said, ‘he is guilty of murder in the first degree with mercy,’ which plea was accepted by the prosecuting attorney.

“The court ordered that the defendant be imprisoned in the Ohio penitentiary during his natural life and pay the costs of prosecution.”

The sentencing entry, quoted above, bears the signature of the trial judge.

It is recognized that habeas corpus is the appropriate remedy to obtain a discharge from imprisonment under a judgment rendered by a court which was without jurisdiction. 20 Ohio Jurisprudence, 429, Section 11, and many Ohio cases there cited.

‘ ‘ The only pertinent inquiry in a proceeding to obtain a discharge from custody imposed by a court is whether the court or judge had jurisdiction.” 20 Ohio Jurisprudence, 496, Section 83, and Ohio and federal cases there cited.

Section 12165, General Code, provides:

“If it appears that the person alleged to be restrained of his liberty is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed * *

At the time of the commission of the alleged offense and on the date of the above journal entries, Sections 13442-4 and 13442-5, General Code, were in effect and it is claimed by petitioner that the latter section was controlling of the proceedings with respect to the indictment, plea, conviction and sentence and that as it was not observed, the trial judge was without jurisdiction to sentence the petitioner.

Section 13442-4, General 'Code, provides:

“In all criminal cases pending in courts of record in this state, the defendant shall have the right to waive a trial by jury, and may, if he so elect, be tried by the court without a jury. Such waiver and election by a defendant, shall be in writing, signed by the defendant and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows * *

Section 13442-5, General Code, provides:

“In any case where a defendant waives his right tos trial by jury and elects to be tried by the judge of such court as provided in the next preceding section, any judge of the court in which such cause is pending shall have jurisdiction to, and shall proceed to hear, try and determine such cause in accordance with the rules, and in like manner as if such cause were being-tried before a jury; provided, however, that if the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges consisting- of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding- judge or chief justice of said court if there be such officer, and in case there is neither presiding judge nor chief justice, by the chief justice of the Supreme Court of Ohio. Such judges or a majority of them shall have power to decide all questions of fact and law arising upon the trial, and render judgment accordingly; and provided further, that if the accused plead guilty of murder in the first degree, a court composed of three judges as herein provided shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly. In rendering judgment of conviction of an offense punishable by death upon plea of guilty or after trial by the court without the intervention of a jury the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury. * * * ”

A mere casual reading of these sections is convincing that they have no application whatever to what was done in the instant case. It will be noted that Section 13442-4 not only accords the defendant the privilege of waiving a jury trial and electing to be tried by the court without a jury, but sets up the form, and in substance the language, in which such waiver and election shall be executed. This waiver of the right to a jury trial and election, as therein provided, is a prerequisite of, and essential to, the application of Section 13442-5 in respect to the first sentence thereof. In the instant case there was no observance by the defendant of the provisions of Section 13442-4 and such procedure was not applicable to that which was the purpose of all parties to accomplish.

The proceedings had preliminary to, and at the time of the sentence of petitioner, may not be referable to Section 13442-5, and no court was thereby vested under that section with authority to exercise any jurisdiction whatsoever respecting petitioner’s plea. If such plea and the proceedings succeeding it are to be given validity, it must be done by virtue of some section of the Code other than Section 13442-5.

The record clearly exemplifies what the petitioner desired, to do at the time he entered his plea. He was ■represented by counsel, the state being represented by the prosecuting attorney, and the judge who pronounced sentence acted impartially. The petitioner did not want a trial by any tribunal. He desired only to enter a plea of guilty if the finding of the court would be qualified with mercy. . He proffered such a plea. His counsel advised and acceded to this procedure and the prosecuting attorney accepted it. The court pronounced sentence upon his plea.

But for Section 13442-5 there is no section of the General Code other than Section 12400, wherein a recommendation of mercy upon conviction of murder in the first degree is specifically recognized or given consideration. There is no section which specifically permits the unqualified plea of guilty of murder in the first degree carrying the death penalty, or of a plea such as entered in this case.

Section 12400 defining murder in the first degree provides that a jury may recommend mercy. In all instances where a cause under such section is submitted for trial, such recommendation is solely for the jury which must consider from the evidence in the case, the character of the crime and attending circumstances, as a basis upon which to determine whether it will recommend mercy. Howell v. State, 102 Ohio St., 411, 131 N. E., 706, 17 A. L. R., 1108; State v. Caldwell, 135 Ohio St., 424, 21 N. E. (2d), 343; Shelton v. State, 12 Ohio App., 376; Ashbrook v. State, 49 Ohio App., 298, 197 N. E., 214. Sections 13442-5 and 12400 provide the only statutory authority for a determination of a recommendation of mercy in a finding or verdict of guilty of murder in the first degree. Both are predicated upon a trial and neither makes any provision whatever for such determination without a trial.

Section 13448-2, General Code, provides, in part: “If the offense charged is murder and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime and pronounce sentence accordingly.”

This section was a part of the Code when Section 13442-5 was amended, and was enacted .at the same time and effective the same date as-Section 13442-4, and insofar as possible they should be construed in pari materia.

A new concept of the degree of the crime of murder appears in Section 13442-5 which provides, in part: “If the accused plead guilty of murder in the first degree, a court composed of three judges as herein provided shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly.” (Italics ours.)

It follows that if mercy is recommended, another and lower degree of first degree murder is established.

Inasmuch as a recommendation of mercy is treated under Section 13442-5, as a degree of first degree murder, may Section 13448-2, from which we have quoted, vest a single judge with power to enter a judgment of such conviction by confession in open court? The statute contemplates that the judge shall examine witnesses but this examination probably could be waived, inasmuch as the gist of the section is that the judge may determine the degree of the crime and pronounce sentence accordingly. We do not believe that the section will bear the interpretation either .that the judge can accept a plea by confession of guilty of murder in the first degree with mercy or that the court has the power, upon hearing the witnesses, to recommend, mercy. This authority in our judgment is vested only by the two sections which we have hereinbefore discussed, namely, Sections 13442-5 and 12400.

Chief Justice Marshall in State v. Habig, 106 Ohio St., 151, 165, 140 N. E., 195, in discussing Sections 12400 and 13692, General Code (the latter now being Section 13448-2), said that they should be construed as to harmonize their operation, and stated further that “it was the undoubted legislative intent that all persons guilty .of murder in the first degree, whether so found by the verdict of a jury or established by confession in open court, should have mercy if the facts and circumstances warranted it. This authority was in terms conferred only upon the jury, but Section 13692 confers upon the court certain powers which Tender the action of a jury unnecessary. The accused has confessed his guilt of homicide, thereby waiving the determination of a jury upon that question, but has not waived all consideration of the question of mercy. No legislative provision having been made for impaneling a jury after a confession of guilt in open court, it must be held that the Legislature intended that all functions of the jury that could be exercised in defendant’s behalf might lawfully be exercised by the court.”

Thus, if Section 13442-5 had not later been enacted there would be presented a stronger case in support of the action of the court on the plea entered by the petitioner.

It was held in Davis v. State, 19 Ohio Law Abs., 382, that where there has been a judicial confession by way of a plea of guilty of murder in the first degree, a single judge has no jurisdiction to determine the degree of crime, and that the judicial confession to commission of a crime as provided in Section 13448-2, and the plea of guilty to crime as provided in Section 13442-5 are synonymous.

Petitioner, cites Johnson v. Zerbst, Warden, 304 U. S., 458, 82 L. Ed., 1461, 58 S. Ct, 1019, which is of value because it is one of the most recent pronouncements of our United States Supreme Court upon habeas corpus and makes distinction between those cases-wherein it is the remedy rather than a review by appeal- or on error. The opinion gives emphasis to the-right of a petitioner to avail himself of the writ of habeas corpus, which is a collateral attack on the judgment, where the trial court is without jurisdiction of the subject matter or the person. In the cited case-the trial judge had denied the writ because of the opinion that the proceedings upon which the petitioner predicted his prayer for relief by habeas corpus-merely constituted trial errors or irregularities which should have been corrected on appeal. The Supreme Court, through Justice Black, concludes that-because a right guaranteed the defendant under the Constitution had been abridged the court had no jurisdiction to pronounce sentence upon his conviction. In the cited case there was no question that the court, as-constituted had -jurisdiction both of the person of the defendant and the subject matter involved, but by reason of the proceedings wherein it was claimed the defendant was denied his constitutional right to have the assistance of counsel, a jurisdictional bar to a valid conviction and sentence was set up. The analogy between the cited case and the instant case is found in the conclusion that jurisdiction to pronounce sentence may be lost if a constitutional provision is not observed. Here it is statutory procedure essential to jurisdiction, which was not followed.

It is evident from what we have hereinbefore said,, under the authorities cited and in the light of the language of Section. 13442-5, General Code, that if the judge who pronounced the judgment of conviction and sentenced the petitioner, acted undér this section or Section 13448-2, he was without jurisdiction to entertain the plea tendered or to act upon it in any manner whatever.

It is fundamental that one may waive the jurisdiction of the person but cannot by consent waive jurisdiction of the subject matter.

If the court is without authority to render the judgment in question, it cannot be sustained on the ground of consent thereto. The Common Pleas Court has only such jurisdiction as is conferred upon it by law. The power to recommend mercy in case of one charged with murder in the first degree, is vested in a jury, or in a court as constituted by Section 13442-5. State v. Habig, supra.

We might well quote from Judge Jones’ opinion as to the source of jurisdiction in criminal causes, found in State v. Smith, 123 Ohio St., 237, 241, 174 N. E., 768:

“The definition and punishment of crimes and the method of criminal procedure are those and only those sanctioned by the state, and are embodied in its criminal legislation. Since the judge had only such jurisdiction as given him by law, he was required to follow the mandate of the statute.”

The petitioner is held upon mittimus predicated upon a sentence of judgment of conviction of murder in the first degree with mercy, entered upon a plea to that effect. The plea is one unknown to the law. The judge who accepted the plea as tendered had no jurisdiction to entertain it, to enter judgment thereon nor to pronounce sentence on the judgment, and such sentence and judgment are void and the imprisonment of the petitioner illegal. The writ must be allowed as prayed.

Writ allowed.

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


author: Middleton, J.

text:
    The Schumacher Stone Co., Appellee, v. Village of Columbus Grove, Appellant.
    (No. 347
    Decided January 17, 1944.)

      Mr. R. 8. Sterner, for appellee.

      Mr. 0. James Steele, for appellant.
   Middleton, J.

The issues in this case are made up by the third amended petition, an answer and a reply.

The third amended petition sets forth that the plaintiff is a corporation organized under the laws of Ohio; that the defendant is a municipal corporation organized under the laws of Ohio; that the defendant, by order and authority of its council, purchased at various and numerous times, certain crushed stone with which to maintain and repair its streets, alleys and -other property; that no one of such orders amounted to or exceeded the sum of fifty dollars; that no part of 'such stone was sold or delivered to supply any one project or any one unit of the village property; and that there is due the plaintiff on the account, $534.21 with interest, as evidenced by an exhibit attached to and made a part of the third amended petition. The exhibit sets forth deliveries of stone to the defendant, covering the period from December 21,1936, to November 20, 1937, both dates inclusive, charge being made for deliveries in December, 1936, and in July, August, September and November, 1937.

The answer admits that the defendant is a municipal ■corporation, and denies that any of the stone was purchased by defendant by order and authority of its -council.

The answer further sets forth the averment that proper and necessary legislation was not passed by the -council of the village as required by law; that no contract in writing was entered into; that the records of •defendant fail to disclose a certificate was filed showing the money was in the treasury to the credit of the proper fund for such expenditure and not appropriated to any other purpose; that the statement attached to the third amended petition shows the delivery of stone ■covered a period of more than three months; and that ■certain payments were made by defendant for stone delivered. Then follows a general denial of all averments not specifically admitted to be true.

The reply denies all averments of new matter in the answer, and pleads estoppel.

On the trial, a jury was waived by the parties and the cause submitted to the court without the intervention of a jury.

The defendant demurred to the introduction of any testimony on the part of the plaintiff, on the ground that the petition did not state a cause of action, which demurrer was overruled by the court. At the conclusion of plaintiff’s case the defendant moved for judgment in favor of the defendant, “no cause of action,”' which motion was also overruled by the court. The defendant offered no defense.

The court thereupon rendered judgment in favor of plaintiff for the amount prayed for.

Motion for new trial was filed by defendant and overruled.

The cause is now before this court upon questions of law.

Among the assignments of error complained of by-defendant, as argued in its brief, are included:

First. Error of the trial court in overruling demurrer of defendant to the introduction of any evidence by plaintiff for the reason that the petition did not state sufficient facts to constitute a cause of action. That the petition did not allege that a certificate was filed showing the amount required to meet the payments for the material had been lawfully appropriated for such purpose and was in the treasury or in the process of collection to the credit of an appropriate fund, free from any previous encumbrances.

Second. Error of the court in overruling defendant’s motion at the conclusion of plaintiff’s case, for judgment in favor of defendant.

The third amended petition does not aver that any certificate of the fiscal officer .of the village' was furnished, showing that the amount required to meet the expenditure had been lawfully appropriated for such purpose and was in the treasury or in the process of collection to the credit of an - appropriate fund, free from any previous encumbrances.

A careful reading of the bill of exceptions shows that no evidence was offered by plaintiff attempting to prove that any such certificate was furnished, or requested of the fiscal officer of the village.

Section 5625-33, General Code, provides as follows:

“No subdivision or taxing unit shall:

“ (a) Make any appropriation of money except as provided in this act; provided that the authorization of a bond issue shall be deemed to be an appropriation of the proceeds of the same for the purpose for which such bonds were issued, but no expenditure shall be made from any bond fund until first authorized by the taxing authority.

“(b) Make any expenditure of money unless it has been appropriated as provided in this act.

. “(c) Make any expenditure of money except by a proper warrant drawn against an appropriate fund which shall show upon its face the appropriation in pursuance of which such expenditure is made and the fund against which the warrant is drawn.

“ (d) Make any contract or give any order involving the expenditure of money unless there is attached thereto a certificate of the fiscal officer of the subdivision that the amount required to meet the same-(or in the case of a continuing contract to be performed in whole, or in part, in an ensuing fiscal year, the amount required to meet the same in the fiscal year in which the contract is made), has been lawfully appropriated for such purpose and is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances. ■ Every such contract made without such a certificate shall be void and no warrant shall be issued in payment of any amount due thereon. In case no certificate is furnished as hereinbefore required, upon receipt by the taxing authority of the subdivision or taxing unit, of a certificate of the fiscal officer that there was at the time of the making of such contract or order, and at the time of the execution of such certificate a sufficient sum appropriated for the purpose of such contract and in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances, such taxing authority may authorize the issuance of a warrant in payment of amounts due upon such contract; but such resolution or ordinance shall be passed within thirty days from the receipt of such certificate; provided, however, that if the amount involved is less than fifty dollars, the fiscal officer may authorize it. to be paid without the affirmation of the taxing authority of the subdivision or taxing unit, if such expenditure is otherwise valid.”

It will be observed that if the “amount involved is' . less than fifty dollars, the fiscal officer may authorize it to be paid without the affirmation of the taxing authority of the subdivision or taxing unit, if such expenditure is otherwise valid.”

This, however, is conditioned upon compliance with the preceding part of the paragraph, that is, the filing “of a certificate of the fiscal officer that there was at ■ the time of the making of such contract or order, and at the time of the execution of such certificate a sufficient sum appropriated for the purpose of such con-' tract. ’ ’

Where such certificate has been filed and the amount is less than fifty dollars, the fiscal officer may pay the claim without the affirmation of the taxing authority.

In this case, however, no certificate of any kind was furnished.

The third amended petition does not state a cause of action as it fails to plead the furnishing of a certificate by the fiscal officer of the village, that the money was in the treasury to meet the expenditure.

The trial court, therefore, should have sustained the demurrer of the defendant to the introduction of any evidence by the plaintiff.

The bill of exceptions discloses that plaintiff failed to prove that the certificate of the fiscal officer of the village was furnished showing that the money was in the treasury to meet the expenditure.

Plaintiff having failed to plead or prove the furnishing of such certificate, the trial court erred in overruling defendant’s motion for judgment for the defendant.

“Failure either to plead or prove a compliance with Section 5625-33, General Code, requiring the attachment of a certificate of appropriation' to a. public contract, is fatal to a recovery on such contract.” Continental Casualty Co. v. Cincinnati Railway Supply Co., 9 Ohio Law Abs., 471.

“City’s contract for purchase of materials for bridge repair, not authorized by city council and executed without director of finance certifying that money required for contract was in treasury to credit of fund from which it was to be drawn,, and in absence of certificate that money was in treasury applicable to such purpose, held void, entitling taxpayer to have city’s payment of money thereunder enjoined, though materials had been used for purposes intended (Section 5625-33, General Code).” Hawley v. City of Toledo, 47 Ohio App., 246, 191 N. E., 827.

“A cause of action against a village is not stated on an account for material used in improving its streets, where there is no allegation that a certificate issued as to there being sufficient money in the treasury and unappropriated to meet the proposed obligation, or that advertisement was made for bids for the work, or that the obligation was to be met by the proceeds from an issue of bonds; nor can the argument prevail that because the material so furnished was actually used by the village it became morally bound to pay the claim.” Village of Pleasant Ridge v. Dayton Limestone Co., 1 Ohio App., 405.

The above holdings are supported by a long line of decisions. Plaintiff in its reply pleads estoppel. Estoppel does not lie where the power to contract the debt is expressly provided for and limited by legislative enactment.

“It is well settled that the rule that there can be no estoppel where a municipality or other public body is wholly without power to make a contract applies to contracts made otherwise than as expressly provided and limited by statutes which confer the power to contract and prescribe the mode by which the municipality shall exercise that power. Such statutes are regularly construed as mandatory and compliance therewith is regarded as a condition precedent to the power to enter into a valid contract. Consequently no act of the municipality or its officers can preclude it from relying upon the provisions of these statutes in defense of actions upon contracts made in disregard thereof. This is true even though the other party may have performed his part of the contract and the municipality may have received and retained the benefits thereof.” 16 Ohio Jurisprudence, 657, Estoppel, Section 77.

The Legislature has, by legislative enactment, set out in Section 5625-33, General Code, restricted the power of municipal corporations to enter into contracts or to expend public funds.

Those who would deal with the agents of a municipality must assume the risk that all necessary steps have been taken requisite to a legal contract.

As stated by Judge Bradbury, in McCloud & Geigle v. City of Columbus, 54 Ohio St., 439, 453, 44 N. E., 95:

‘ ‘ An occasional hardship may accrue to one who negligently fails to ascertain the authority vested in public agencies with whom he deals. In such instances, the loss should be ascribed to its true cause, the want of vigilance on the part of the sufferer, and statutes designed to protect the public should not be annulled for his benefit.”

Having come to the conclusion stated above, that the court erred in overruling defendant’s demurrer to the introduction of any evidence by plaintiff, and erred in overruling defendant’s motion at the conclusion of plaintiff’s case, for judgment in favor of defendant, it is not necessary to pass upon the other assignments of error.

For the reasons herein set forth, the judgment of the Common Pleas Court is reversed, and this court proceeding to render the judgment the trial court should have rendered, now enters final judgment in favor of the defendant.

Judgment reversed.

Guernsey, P. J., and Jackson, J., concur.


text:
    Rauth, Appellee, v. Rauth, Appellant.

      (No. 124
    Decided October 15, 1943.)

      Mr. Eclwin S. Diehl, for appellee.

      Mr. E. B. Mulholland, for appellant.
   Middleton, J.

This is an appeal on questions of law from an order of the Court of Common Pleas of Defiance county, overruling a motion of defendant to dismiss a motion of the plaintiff to vacate an order of the Court of Common Pleas made on April 6, 1943, and allowing a motion of .the plaintiff to vacate the former order of the Court of Common Pleas of April 6, 1943; and from the judgment of the Court of Common Pleas vacating the order of April 6, 1943, which awarded the custody of the minor child of the parties who were divorced.

The action was brought by Vivian Helene Rauth against John Franklin Rauth, for a divorce, alimony, and the custody of the minor child.

The defendant filed an answer and cross-petition wherein defendant sought a divorce and asked that the custody of the minor child be granted to some suitable party.

A reply was filed by the plaintiff admitting the marriage of the parties, the residence of the defendant, the birth of the child, the employment of the defendant, and denied all other averments contained in the answer and cross-petition.

A hearing was had upon the pleadings and evidence, and judgment was rendered on the 11th day of May, 1942, granting a divorce to the defendant on his cross-petition and awarding custody of the child to the plaintiff.

On October 20, 1942, the defendant filed a motion seeking a modification of the order of May 11, 1942, by changing the custody of the child from the plaintiff to “some suitable person preferably the defendant.” Several hearing's were had on the motion, and on the 6th day of April, 1943, an order was entered modifying the order of May 11, 1942, and awarding the custody of the child to the parents of the defendant,.

Thereafter, on the 12th day of May, 194$, a motion was filed by the plaintiff to vacate the former order of the court, dated April 6, 1943, on the ground that the testimony submitted on the motion to modify was the same as submitted to the court on the original hearing and was res judicata, and by reason thereof the court was without jurisdiction to make the order of April 6, 1943.

The defendant thereafter filed a motion to dismiss the motion of plaintiff to vacate the order of April 6, 1943. This motion to dismiss was overruled by the court on May 26,1943.

On May 26, 1943, plaintiff’s motion to vacate the order of April 6, 1943, was sustained, the order of April 6, 1943, was vacated, and a rehearing on the motion to modify was ordered.

Thereafter, on June 10, 1943, on a rehearing of the defendant’s motion to modify the.original order as to •custody of the child, the court found that the defendant had failed to show the unfitness of the plaintiff to have the custody of the child and the motion to modify filed October 20, 1942, was overruled.

The errors complained of by the defendant as set forth in his assignments of error, are as follows:

1. That the court overruled a motion of the defendant to strike a motion filed by the plaintiff to vacate a certain order of April 6, 1943, respecting the custody of the minor child of the parties hereto.

2. That the Court of Common Pleas sustained a motion of the plaintiff to vacate a finding of the court of April 6, 1943, and granted a rehearing thereon.

3. That the court erred in setting aside a former order of the court made on April 6, 1943, respecting the custody of the minor child of the parties hereto.

4. That the Court of Common Pleas erred by an abuse of discretion, if it had any right to exercise discretion, in hearing the motions of the plaintiff as to the custody of the minor child of the parties herein.

5. The finding of the court on the motion of the plaintiff is not supported by the law.

6. The findings of the court are against the manifest weight of the evidence.

7. The court erred in excluding evidence offered by the defendant, as shown by the record herein.

8. Other errors manifest on the face of the record.

Plaintiff’s motion to vacate the order of April 6, 1943, was filed on May 12, 1943, and allowed on June 11, 1943, all in the same term of the court.

There is no bill of exceptions of the hearing had on such motion, so if the court had jurisdiction to make the order complained of it is conclusively presumed that the court had facts properly presented on the hearing of the motion which warranted it in making such order.

“A court of general jurisdiction, such as the Common Pleas Court, has control and supervision of its own judgments, at least during the term at which they' are rendered * * 23 Ohio Jurisprudence, 1117, Section 959.

“A court of general jurisdiction has control of its own orders and judgments during the term at which they are made or rendered, and the inherent power, in the exercise of a sound discretion, to vacate or modify them.” Moherman v. Nickels, 140 Ohio St., 450, 45 N. E. (2d), 405, 143 A. L. R., 1174.

The court having control over its orders and judgments during term, we find no error in the overruling of defendant’s motion to dismiss plaintiff’s motion to vacate the order of April 6, 1943, nor in vacating the order of April 6, 1943, and granting a rehearing on the motion of defendant to modify the original order awarding custody to the plaintiff, filed October 20, 1942.

“Upon hearing the testimony of either or both of such parents, corroborated by other proof, the court shall decide which one of them shall have the care, custody and control of such offspring, taking into account that which would be for their best interest, except that, if such children be ten years of age or more, they must be allowed to choose which .parent they prefer to live with, unless the parent so selected, by reason of moral depravity, habitual drunkenness or incapacity, be unfitted to take charge of such children, in which event the court shall determine their custodian. The above provisions permitting children to choose the parent with whom they desire to live, also shall apply to proceedings for modification of the former orders of the court, fixing the custody thereof, as in original actions. If upon such hearing it should be proved that both parents are improper persons to have the care,, custody and control of their children, in its discretion, the court may either designate some reputable and discreet person to take charge thereof, or commit them to a county or district children’s home in which they or their parents have a legal settlement.” ¡Section 8033, General Code.

“When a Court of Common Pleas, upon granting a divorce, awards the custody and control of children of the marriage to either of the parents, or to another person where neither of the parents is a proper or suitable person for such purpose, such children become the wards of the court. In such case, the jurisdiction of the court over their custody and control is a continuing jurisdiction, and may, on proper application, be invoked to modify orders made in the original proceeding, whenever the character and circumstances of the case, or of the parties, require it. And the filing of a motion in the original cause is a proper method of making application to the court for such purpose.” 14 Ohio Jurisprudence, 544, Section 141.

"A decree of divorce terminating the marriage contract of parents who have minor children, which decree provides for the custody, care and support of such minor or minors by the parents respectively during such minority or for a lesser period of time, named in the decree, continues the jurisdiction of the court for such period without any express reservation in the decree itself.

"The proper practice in securing a modification of such decree with respect to the custody, care or support of such minors, is by motion filed in the original divorce action by the party seeking such modification.” Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10.

The authorities are all in accord in support of the continuing jurisdiction of the court awarding the custody of a child, to modify, on motion, the order made in the original proceedings.

There remains for consideration only the rulings of the court on the exclusion of evidence, and the errors assigned that the order of the court on the motion to modify was against, the weight of the evidence and the law.

Upon the hearing of the motion to modify, the court excluded evidence tending to show the unfitness of the plaintiff to have the custody of the child, as of a time or times prior to the filing of the divorce action and prior to the court’s order awarding custody of the child to the plaintiff, which the defendant contends was erroneous. The court’s refusal to hear such evidence to modify was correct.

This court does not have before it a record of the evidence offered in the original hearing. However, the issue was made concerning the fitness of the plaintiff to have the custody of the child and it must be presumed that the court had evidence presented to it upon which its order was based. By its-order awarding the the custody of the child to the plaintiff, the court of necessity found that defendant had failed to show that the plaintiff was unfit, by reason of moral depravity, habitual drunkenness or incapacity, to have the custody of the child.

Holding this view, the only evidence which was admissible on the motion to modify, was evidence tending to show a change in condition since the original order was made.

To hold otherwise would permit a rehearing of the original order as to the custody, on any motion to modify. This is not the law. Graviess v. Graviess, 7 C. C. (N.S.), 135, 18 C. D., 26.

The court has carefully examined the record and does not find any evidence that the unfitness of the plaintiff, by reason of her moral depravity, habitual drunkenness or incapacity, to have custody of the child, existed at any time subsequent to the rendition of the judgment granting the custody of the child to her, which would justify a reversal of the court below on the weight of the evidence.

The record discloses that the child, being fourteen years of age, elected to live with her mother. This right to elect is conferred by Section 8033, General Code, and a court is bound by such election, unless it is shown to the satisfaction of the court that the parent selected, by reason of moral depravity, habitual drunkenness, or incapacity, is unfit to take charge of such child. Slater v. Slater, 15 Ohio Law Abs., 572.

The evidence introduced on the question of fitness was addressed to the sound discretion of the court. Reading the record we do not find any abuse of this discretion by the trial judge, which would justify a reversal of the order of the court on the motion to modify.

For the reasons stated above, the judgment of the court is affirmed.

Judgment affirmed.

Guernsey, P. J., and Jackson, J., concur.


author: Jackson, J.

text:
    Ekleberry, Appellee, v. Sanford, Appellant.

      (No. 1438
    Decided November 19, 1943.)

      Mr. Edward J. Myers, for appellee.

      Messrs. Carpenter & Carpenter and Mr. Leo J. Scanlon, for appellant.
   Jackson, J.

In the latter part of 1941 appellee engaged the appellant as a real estate broker to obtain a purchaser for certain real estate and personal property. Appellant secured one John K. Chaney to enter into a contract with the appellee (plaintiff’s exhibit A). There was an agreement between the appellant and appellee that if a purchaser was secured, a commission of $1000 was to be paid by appellee to appellant. In accordance with plaintiff’s exhibit A the down payment of $500 was to be retained by the appellant until the completion of the agreement. Chaney gave his note for $500 (plaintiff’s exhibit C) to appellant, and appellant in turn'gave his note for $500 (plaintiff’s exhibit B) to appellee.

On June 11, 1942, appellee obtained a judgment against the appellant for the amount of the note and interest, by virtue of the cognovit provisions contained in the note. On August 20, 1942, motion to vacate the judgment was filed, and on August 29, 1942, the judgment was suspended and the appellant was granted leave to file an answer instanter. On November 27,1942, after a trial by jury, a verdict, signed by twelve jurors, was rendered against the appellant for the sum of $5, upon which verdict a judgment was entered for the appellee for the sum of $500, with interest and costs, the judgment to bear date of June 11, 1942.

Appellant filed notice of appeal in this court, and in due time filed seven assignments of error. Assignments of error are as follows:

1. The court erred in overruling appellant’s motion for a directed verdict in his favor.

2. The judgment is contrary to law.

3. The verdict of the jury is not sustained by sufficient evidence.

4. The verdict of the jury is contrary to law.

5. The verdict of the jury is contrary to the evidence.

6. For the several errors of law occurring at the trial and to which exceptions were taken by appellant at the time.

7. For other errors manifest from the face of the record.

Assignments of error numbers 1, 3, 4, 5 and 6 are overruled as being wholly without merit.

Assignments of error numbers 2 and 7 embrace the same subject matter and will be discussed together.

The verdict of the jury recites that “the issues in the case are found in favor of the plaintiff and assess the amount due to the plaintiff from the defendant, the said David E. Sanford, the sum of $5.” The court received the verdict and the jury was discharged. The action by the court on the verdict occurred after the jury was dismissed and a motion for new trial overruled on the 14th day of December, 1942.

The jury must assess the amount of the recovery in its verdict. 39 Ohio Jurisprudence, 1100, Trial, Section 371; Section 11420-19, General Code.

Under the Code, the court had no power to correct or alter the verdict of the jury without the assent of the jurors before their discharge and this power can be exercised by the trial court only in the manner provided. Such power may not be exercised by a reviewing court. 39 Ohio Jurisprudence, 1117, Trial, Section 391; Section 11420-11, General Code.

A verdict is defective in substance if it is- wanting in some real or essential part or element and does not correspond to tbe issues raised by the pleadings. This is true if a party sues on a promissory note with interest and the verdict is for the full amount of the face of the note but no reference is made to interest. Such a verdict is defective in substance. 39 Ohio Jurisprudence, 1119, Trial, Section 392; Lehrer v. Cleveland Ry. Co., 20 N. P. (N. S.), 481, 28 O. D. (N.P.), 243.

If the verdict recited that a certain amount plus interest was assessed by the jury the court may in such instance compute it. However, the Ohio courts are unanimous that the failure of the jury, .in rendering a ■verdict for the full amount claimed with interest at a stipulated rate, to calculate the interest and add it to the principal is a defect of form and may be corrected by the court only with the assent of the jurors before their final discharge. Crawford v. Kellermeier, 123 Ohio St., 404, 175 N. E., 600; 39 Ohio Jurisprudence, 1121, Trial, Section 395.

A jury should have every reasonable opportunity, before their verdict is put on record and before they are discharged and their relation to the case as jurors has ceased, to alter their verdict in form or substance to conform it to their intention and purpose. If, having once agreed upon and returned to the court the written verdict, the jury separate and subsequently meet in their room and change their verdict, such altered verdict could not, with propriety, lay the foundation of any judgment. 39 Ohio Jurisprudence, 1123, Trial, Section 397.

Clearly, after the jury has been permanently discharged from a case it cannot be reassembled to amend or correct the verdict in the matter of substance, and by virtue of Section 11420-11, G-eneral Code, when the jury has been discharged the court cannot recall it to correct a defect in form. 39 Ohio Jurisprudence, 1127, Trial, Section 400; Sargent v. State, 11 Ohio, 472; American Railway Express Co. v. Catlin, 2 Ohio Law Abs., 746.

Appellant asserts that there was no consideration passing between the parties when appellant executed and gave his note (plaintiff’s exhibit B) to the appellee.

We are of the opinion that the note in question had consideration when it was executed and delivered by the appellant to the appellee.

When the appellee and Chaney, the prospective purchaser procured by appellant, executed the agreement known as plaintiff’s exhibit A, the appellant had performed and completed his agreement with the appellee as to the sale of property, and there was nothing further to be done on the part of the appellant except to receive the initial payment of $500 which had been received and accepted in the form of a promissory note (plaintiff’s exhibit C), and in turn the appellant delivered his own note for the same amount to the appellee which was accepted by the appellee as and for {lie first payment ■ under the agreement between the purchaser, Chaney, and the appellee.

Assignments of error numbers 2 and 7 are sustained. The judgment is reversed, at costs of appellee, and the cause is remanded to the Court of Common Pleas for further proceedings according to law.

Judgment reversed.

Guernsey, P. J., and Middleton, J., concur.

(Decided December 7, 1943.)

Jackson, J. The motion of the appellee, Hugh Ekleberry, for diminution of the record, resubmission and rehearing is denied.

Under Sections 11572a and 11363, General Code, authority is granted to the courts, when justice requires it, or in furtherance of justice, to correct an omission in the bill of exceptions.

Section 11420-9, General Code, requires that the verdict shall be in writing. Inquiry can be made of the jurors only to ascertain if the verdict is that of three-fourths or more of their number. The verdict must stand or fall upon the writing, without explanation.

“Although no particular form is required, the verdict of the jury, to serve as a basis for a judgment, should be clear, intelligible, consistent, and certain. It should import a definite meaning free from any ambiguity, and should show just what the jury intended, so that the court may ascertain from its terms alone, or from its terms when read in the light afforded by the pleadings of which it is the duty of the court to take judicial notice, what judgment to render. If it is void for uncertainty, it should be set aside or refused by the court.” 39 Ohio Jurisprudence, 1090, Trial, Section 365.

The above rule is not only fundamental but also elemental in the trial of a cause.

A motion to correct a bill of exceptions will be denied where the correction of the bill would not result in a different conclusion from the one already announced. Hawke v. Roberts & Hall, 13 Ohio App., 198; Elser v. Parke, 142 Ohio St., 261, 51 N. E. (2d), 711.

Motion overruled.

Guernsey, P. J., and Middleton, J., concur.


author: Lloyd, J.

text:
    Ainslee, a Minor, Appellant, v. City of Bellevue, Appellee.
    (No. 405
    Decided May 3, 1943.)

      Messrs. Young S Young, for appellant.

      Mr. Kenneth P. Fox, city solicitor, and Messrs. Flynn, Frohman, Buckingham, Py & Kruse, for appellee.
   Lloyd, J.

The residence of the parents of James Ainslee, a minor five years of age, was in the vicinity of Greenwood Heights playground, a public park in Bellevue. In this park were various athletic equipment and apparatus, including tennis courts, a baseball diamond, track, basketball court, shuffleboard, horse shoes, badminton, deck tennis and areas set aside for discus throwing, pole vaulting, shotput and perhaps other athletic activities. There was no equipment for children of the age of Ainslee. The entire field covers about seven acres.

Young Ainslee, despite being told several times of the danger of being hurt, continued to come there when athletic activities were in progress; and while there on May 24, 1941, was struck on the head by a discus which when thrown by a recent graduate student of Bellevue High School, traveled sideways instead of along its intended course. The thrower had immediately theretofore been using the discus for some 15 or 20 minutes in and confined to the area provided therefor. This was the last “heave” as he called it, which he intended to make, and it was made outside of the designated area.

Part of the moveable athletic equipment, among which was the discus in question, was the property of the high school. This discus, however, had been discarded for others of less weight. It was used only “because it was heavier and when you threw the light-discus you would throw it farther. ’ ’ It had been lying about the playground during the entire spring, which fact was known by the playground supervisor.

On this 24th of May, two former high school students went to the athletic field and saw the discus lying on the grass near a shed used “to house the tools.” In the shed also was a telephone.. The discus was picked up and used by one of them, with the unfortunate result above related.

In the action brought in the Court of Common Pleas, for damages for the injuries sustained by the five-year-old boy, the jury returned a verdict for the city of Bellevue; upon which judgment was entered. Prom this judgment, an appeal on questions of law has been taken to this court, it being claimed that the trial court erred in its charge to the jury; and that the verdict was not sustained by sufficient evidence and is contrary to law.

The action of the plaintiff was based on the theory that “a discus is dangerous because of the uncertainty of its flight in use,” and to knowingly allow one to be left on the playground, where it might be found and used, constituted a nuisance.

Areas had been established in the playground for throwing the discus and at the time of the injury to plaintiff, it was being thrown by a young man who was conversant with that activity. If the city is liable for what happened, that liability must arise because of its failure to keep the playground “free from nuisance” as provided in Section 3714, General Code. Nuisance has been variously defined. The Supreme Court, at page 453 of its opinion in the case of Rd. Co. v. Carr, 38 Ohio St., 448, 43 Am. Rep., 428, states that:

“An actionable nuisance is defined by Mr. Cooley in his work on Torts, to be anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights; and, on page 566, he says: ‘As the definition assumes the existence of wrong, those things which may be annoying and damaging, but for which no one is in fault, are not to be deemed nuisances, though all the ordinary consequences of nuisances may flow from them.’ And Mr. Addison, in his work on Torts, (Dudley and Baylies’ ed. p. 3), says: ‘A man may, however, sustain grievous damage, at the hands of another; and yet, if it be the result of inevitable accident or a lawful act done in a lawful manner, without any carelessness or negligence, there is no legal injury, and no tort giving rise to an action for damages.’ Such cases are within the rule of damnum sine injuria

It seems to the court that the discus was no more inherently dangerous than a tennis ball or a baseball or any of the other playground equipment, or a stone that might be picked up by some visitor or habitue of the park and thrown. Its use was the activating cause of the resulting injuries. Even if it could be said that, under the condition disclosed by the record,' it was the duty and obligation of the city to keep under lock and key it and all similar equipment when not in use, that failure was not the proximate cause of the injury to the plaintiff. The direct and proximate cause of the injury was the negligent throwing of it by the young man using it.

Our judgment is that the court could well have granted the motion of the defendant for a directed verdict. The judgment is therefore affirmed.

Judgment affirmed.

Carpenter and Stuart, JJ., concur.