author: Savord, J.

text:
    The State of Ohio, Appellee, v. Clark, Appellant.

      (No. 635
    Decided April 28, 1952.)

      Mr. Herbert R. Freeman, prosecuting attorney, for appellee.

      Messrs. Miller c& Miller, for appellant.
   Savord, J.

This is an appeal on questions of law from a judgment of the Juvenile Court.

The complaint charged that the defendant “did act in a way tending to cause the delinquency” of an 11-year-old boy in that defendant “took indecent liberties with the boy.” Defendant having entered a plea of not guilty and having waived in writing a trial by jury, was tried to the court, adjudged guilty, and ordered to stand committed to the Toledo workhouse for a period of one year and to pay the costs of prosecution.

It is from such judgment and sentence that defendant appeals, assigning as errors that the Juvenile Court erred:

(1) In overruling defendant’s motion for a finding of not guilty at the close of the state’s evidence and at the close of all the evidence.

(2) In that the decision and judgment of the court is contrary to law and the manifest weight of the evidence.

Among the several reasons advanced in support of his first assignment of error, defendant urges that the complaint upon which he was required to go to trial is insufficient in that it fails to state an offense. The basis for such criticism resides in the claim that the complaint is indefinite in stating the particular conduct alleged to have been engaged in by defendant, which tended to cause the delinquency of the child; particularly in that such complaint neither specifies the exact nature of the “liberties” nor whether the taking of same was wilful. Concededly, the complaint might have been drafted so as to have rendered it more definite and certain as to content, but considering it in its entirety, we are satisfied that it was sufficient to apprise defendant of the nature and character of the offense charged. No motion or demurrer subjecting the complaint to attack was filed, nor did defendant request a bill of particulars. We are unable to conclude that the complaint is insufficient as a matter of law.

Defendant argues further that the record discloses no evidence to establish that the child actually became a delinquent as a result of any alleged conduct indulged in by the defendant. In advancing this proposition, it appears that defendant fails to accord proper significance to that portion of Section 1639-45, General Code, upon which this prosecution is based, and having to do with acts which tend to cause delinquency. The first portion of this section condemns the aiding, abetting, causing, encouraging or contributing towards the delinquency of a child. This portion of the statute undoubtedly contemplates an existing delinquency and that such situation has been contributed to by another in one or more of the several ways outlined by the statute. Hence, the rule that in such case the complaint is required to allege and the proof to establish that the minor is or was a delinquent and the situation was in some measure caused or contributed to by the one charged. Peefer v. State, 42 Ohio App., 276, 182 N. E., 117.

Reasonable construction of that portion of Section 1639-45, General Code, having to do with acts which in a way tend to canse delinquency in a child leads to an entirely different concept. Here it does not absolutely follow that the child must as a result of such acts become a delinquent. If the acts are of a nature and character that they possess within themselves the probability of leading the child into the status of a delinquent, as contemplated by Section 1639-2, General Code, then such acts fall within this portion of Section 1639-45, General Code, and may be considered as tending to cause delinquency independent of whether such delinquency actually develops. It is the vicious effect which such acts may probably'produce that is sought to be avoided. The prohibition seeks to prevent a probable delinquency rather than to await the undesirable result and then seek its cure. Surely the Legislature never intended that the offender should be punished only in the event that the potential effects of such acts had been fully accomplished.

On the day here in question, the defendant came to Norwalk about noon. It is conceded that during the afternoon he drank excessively and, while there may exist some question as to whether he was intoxicated in such degree as to be totally lacking his faculties, there exists no question that he .was under the influence of liquor. Late in the day he encountered the prosecuting witness in a downtown drug store. Having paid for a soft drink which the former had purchased, they left the drug store in each other’s company, the boy indicating that he was about to return to his home. Defendant continued for a considerable distance along the street with the boy. He continued to inquire with respect to a former acquaintance and urged the boy to point out to him the place of residence of this friend. According to the prosecuting witness, as he reached the neighborhood of his home and was passing between two houses defendant “put his hands on my privates.”

On cross-examination, the boy testified as follows:

“Q. Did he at that time grab you with his other hand or hold you ? A. He had me by the arm, he wasn’t holding me tight; I only ran home but he went the other way.

“Q. Now when he touched your privates, Philip, did he use his right hand or his left hand, do you remember? A. No, I don’t.

“Q. Do you remember feeling that touch? A. Yes.

“Q. You do? A. Yes.

“Q. Did it hurt? A. No.

“Q. It wasn’t a hard blow? A. No, sir.

“Q. And I believe you told Mr. Freeman that he didn’t do anything more than that? A. No.

“Q. Did — he did not open your fly? A. No.

“Q. Or grab for your penis? A. No.

“Q. Now you ran back through the houses, did you? A. Yes.

“Q. What was his condition? A. Well, he was intoxicated.”

The record further discloses that upon the boy going into his house and reciting to his father what had happened, the latter called the police. The father, son, and officer responding to the call cruised about the neighborhood for a brief time in an effort to locate the defendant. Not having done so, they returned to the house. Defendant was standing in front of it and still inquiring as to the place of residence of his former friend, having apparently made no effort to leave the neighborhood. He submitted to arrest without any indication of resistance. On direct examination, the arresting officer testified that the defendant was intoxicated; that the latter said he was looking for Frankie Noble; and that upon being interrogated at the police station, defendant was incoherent in his speech.

Defendant testified that on the day in question he had had a number of drinks prior to meeting the boy; that having struck up a friendship with the boy, defendant asked him to show defendant the residence of Frankie Noble, defendant’s former friend; that it was for such purpose that the boy and himself started down the street together; and that when the boy suggested he was going home, defendant said to him: “It is early yet, will you show me where Frankie Noble lives first before you go home.”

The further direct examination of defendant reveals the following questions and answers:

“Q. What did he say or do? A. Well, he acted hesitant and I grabbed his arm, then I says ‘Before you go won’t you show me where Frankie lives?’ And he acted very excited.

“ Q. What did he do ? A. He got excited and he said ‘ I got to go now, I got to go, I got to go. ’

“Q. What did he do? ■ A. Why he told me I had to let him go. I told him I wouldn’t harm him, I just wanted to see Frankie Noble and he got scared and more or less ran.”

In our consideration of this case, we can not ignore the responsibility resting upon the court by reason of the unqualified expression found in the syllabus of Cooper v. State, 121 Ohio St., 562, 170 N. E., 355, wherein it is stated:

“It is the duty of the Court of Appeals, in reviewing a ease upon the weight of the evidence, to determine whether the verdict and/or judgment is supported by the degree of proof which the character of the case requires, and render its judgment according to such determination. ’ ’

To the same effect see Ford v. Osborne, 45 Ohio St., 1, 12 N. E., 526; Cole v. McClure, 88 Ohio St., 1, 102 N. E., 264; State v. Urbaytis, 156 Ohio St., 271, 102 N. E. (2d), 248.

Although recognizing the imperative necessity of protecting the physical and moral welfare of minors as contemplated by the delinquency laws, we must be mindful of the serious results accruing to an individual improperly found guilty of their violation. In the light of the rule and considering the immaturity of the boy, the fact the defendant had been drinking, the uncontroverted original purpose of his accompanying the boy, the question of what defendant actually did, the insufficiency of proof as to the element of wilfulness, the fact that the defendant remained in the neighborhood of the boy’s home, the testimony adduced as to the previous good character of the defendant and all the other facts and circumstances disclosed by the record, we can not say that we “feel an abiding conviction to a moral certainty of the truth of the charge” and that therefore the evidence attains that high degree of probative force and certainty which the law demands to support' a conviction.

It follows that the judgment and sentence must be and is reversed, and the cause is remanded to the Juvenile Court with instructions to discharge the accused.

Judgment reversed.

Fess and Conn, JJ., concur.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Marquis, Appellee, v. The New York Life Ins. Co., Appellant.
    (No. 7594
    Decided June 23, 1952.)

      Messrs. Cowell & Fletcher and Mr. Frank Espohl, for appellee.

      Messrs. Taft, Stettinius £ Hollister, for appellant.
   Matthews, J.

This is an appeal from a judgment for the plaintiff in an action under Section 11851, General Code, against defendant, for failure to comply with an order against it as a garnishee made in an action in which the plaintiff in the present action was plaintiff and Gordon Marquis was defendant.

The plaintiff in her petition in the present action alleged that she instituted the prior action to recover judgment against Gordon Marquis in the sum of $1,625, and that in that action an order of attachment and garnishment was issued and duly served upon The New York Life Insurance Company as garnishee, which answered, admitting that it owed Gordon Marquis $733.43. Whereupon the court ordered the garnishee to hold such sum subject to the further order of the court, and thereafter the court entered judgment against Gordon Marquis in plaintiff’s favor for $733.43, and ordered the garnishee to pay that amount into court. The plaintiff alleged also that the garnishee, The New York Life Insurance Company, failed and refused to pay the sum into court. The plaintiff prayed for judgment for $733.43, with interest.

The defendant answered that petition by admitting that plaintiff had instituted an action against Gordon Marquis, as alleged by her, that an order of garnishment was issued thereon, and that it had filed an answer as garnishee. The defendant specifically denied that it had admitted owing Gordon Marquis $733.43 or any other sum and generally denied all other allegations.

At the trial it was disclosed that the essential facts were uncontroverted. It was agreed that the defendant had issued a policy upon the life of Gordon Marquis for $10,000, payable to him if he should live to be 65 years of age, and if he should die before reaching that age to his mother, or if she should he dead, then to his father, and that the property rights of the insured under this policy prior to its maturity on his reaching 65 years of age were the subject matter of this controversy. It is clear that nothing happened or could happen in the action in which this defendant was garnishee only, and had denied that it was indebted, that would bar it from raising the issue that it was indebted, in this action under favor of Section 11,851, General Code.

The policy was placed in evidence by stipulation of the parties. The only circumstances under which the defendant obligates itself to pay to the insured anything pending the maturity of the policy are set forth in the following provisions of the policy:

“Loan Provisions

“After three full years’ premiums have been paid and before default in payment of premium or within the grace period, the company upon receipt of this policy and a loan agreement satisfactory to the company, will advance to the insured on the sole security of this policy, any amount, which, with interest, shall be within the cash value of this policy.”

“Non-forfeiture Provisions

“In event of default of payment of premium after three full years have been paid, the following benefits shall apply if the premium remains unpaid and the automatic premium loan provision is not applicable:

“(a) Non-Participating Extended Term Insurance:

[Under this title are provisions for automatic nonparticipating extended term insurance in the absence of an election by the insured to take the cash value or participating paid-up insurance.]

“(b) Participating Paid-Up Insurance:

[Under this heading are found the terms and conditions under which the insured may elect to take participating paid-up insurance.]

“(c) Cash Value: Within three months after such default, but not later, the insured may elect in place of such non-participating extended term insurance or participating paid-up insurance to surrender this policy and all claims hereunder and receive its cash value as at date of default less an indebtedness hereon.

< C * *

“4. Cash Value Of Fully Paid Policy.

“If this policy shall have become fully paid by its terms, the insured at any time may surrender this policy and all claims hereunder and receive its then cash value less any indebtedness hereon.”

There was no evidence that the insured or any one else had surrendered this policy to the defendant, or that defendant had possession of the policy. There was no evidence that the insured had elected to receive the cash value in lieu of participating extended term or participating paid-up insurance.

The question presented is whether under those circumstances the court was right in entering judgment against the defendant on its admission that at the time the notice was served on it as garnishee the policy had a cash surrender value of $733.43.

The plaintiff-appellee relies upon two Ohio cases and one Nebraska and one New York case. Neither of the Ohio cases involved the question here presented.

In Hoffman v. Weiland, 64 Ohio App., 467, 29 N. E. (2d), 33, the insurer admitted the indebtedness and the only question argued or decided was whether that indebtedness was exempt under Section 9394, General Code, in an action by the divorced wife against her unmarried former husband, who had no children or other dependents. The court held it was not exempt. If any such question as here presented lurked in the facts of that case, it was not flushed into the open. The cash surrender value was treated as an unconditional matured debt. The insurer did not plead any conditions.

In Foulks v. Foulks, 49 Ohio App., 291, 197 N. E., 201, the question was whether the court, in an action for divorce, alimony, and division of .property, had jurisdiction to, and should under the circumstances award to the wife a certain 20-year endowment policy upon the life of the husband, in which he was the named beneficiary. The court listed the various alternative rights under the policy, held that the husband had these rights. and that the rights were property, and found that the trial court did not err in ordering him to assign the policy to the wife. The court said nothing about the conditions necessary to be performed in order to obtain the cash surrender value. Whatever they were, if any, would inhere in the policy after its transfer to the wife.

And we find no Ohio case that can be said to be in point. In Orlopp v. Schueller, Admr., 72 Ohio St., 41, 73 N. E., 1012, 106 Am. St. Rep., 583, the court held that the property or money held by an executor or administrator in his representative capacity cannot be reached by garnishment process in an action against an heir or legatee before an order of distribution has been made. And, at page 59, the court said: “Until such time the executor or administrator is not the debtor of the heir or legatee, nor is it certain that he is the custodian of any property belonging to him.”

Talcott v. Field, 34 Neb., 611, 52 N. W., 400, 33 Am. St. Rep., 662, did not involve the garnisbability of the cash surrender value of an unmatured policy. The policy had matured, the total insurance had been paid to, and invested by the insured’s wife. The question was whether, under the circumstances of that case, the property in the hands of the wife was subject to the husband’s debt. It is apparent that case is no guide to a decision of whether the cash surrender value of an unmatured policy is subject to garnishment. That it is no guide is pointed out in the annotation to the case of Farmers & Merchants Bank v. National Life Ins. Co. (161 Ga., 793, 131 S. E., 902), in 44 A. L. R., 1184, a case in which it was held that the cash surrender and cash loan value of a policy of life insurance accruing at the end of a specified tontine period is not subject to garnishment by creditors of the insured. In that case, plaintiff’s counsel relied on a quotation from 28 Corpus Juris, 166, in which, inter alia, it was stated that “a life insurance company’s liability for accrued cash accumulations is subject to garnishment.” The court said that this part “apparently” supported the plaintiff’s position, but that other parts of the quotation led to a contrary conclusion. It is interesting to note that in 38 Corpus. Juris Secundum, 317, 318, Section 110, the whole section on “life insurance” subject to garnishment has been revised and given this bold type heading: “Unless such property.is exempt the proceeds of a life insurance policy are subject to garnishment. Benefits which can be realized on a life policy prior to insured’s death can be garnisheed only if all the conditions to such benefits have been fulfilled.” (Italics supplied.)

And the sentence that the court said apparently supported the plaintiff was amended so as to read: “A life insurance company’s liability 'for accrued cash accumulations is subject to garnishment where such accumulation is unconditionally payable.” (Italics supplied.)

Finally, counsel rely on Foley v. Equitable Life Assur. Society, 290 N. Y., 424, 49 N. E. (2d), 511. There were two kinds of policies involved in that case. One kind required the automatic conversion into a paid-up annuity after 65 years of age, upon default and failure to elect to take cash surrender value without any right to amortize the annuity. The other contained an express option to surrender the paid-up annuity for its cash value at any anniversary of the date of the policy.

As to the first kind, there had been a default and no election to take the cash surrender value, and so the policies became fully paid-up annuities without the right to surrender the paid-up annuity and receive its amortized value.

As to the second class, there was this right to surrender and receive the cash surrender value both before and after its conversion into a paid-up annuity, and the court held that this could be reached by garnishment. It will thus be seen that the court as to these was dealing with policies that had matured and not with benefits that accrued prior to maturity.

Dispensing with the surrender of the policies under such circumstances is determined by the same principles that apply in any other action upon a fully matured obligation evidenced by a written instrument such as a promissory note. That principle has no application to a written document evidencing unmatured obligations and rights.

We think it is correct so far as a debtor is concerned, and generally speaking, that all his property of whatever nature is subject to the payment of his debts unless there is some express statutory exemption. But we are not concerned here with the protection of the rights of Gordon Marquis, the judgment debtor. It is the garnishee who is resisting this order directing it to pay on the ground that at this time and at the time the notice of garnishment was served it owed nothing.

In 38 Corpus Juris Secundum, 227, Section 26, the test is stated as follows: “The most comprehensive test of liability to garnishee process is whether or not the person sought to be charged could have been sued by the defendant.”

Of course that is not an infallible or universal test. There are cases where, because of the character of the persons or the nature of the property, the test would be inappropriate. We believe, however, there is nothing in the case at bar that calls for any other test.

In 38 Corpus Juris Secundum, 290, 291, Section 87, it is said:

“In the absence of statute to the contrary, a debt which is uncertain and contingent, in the sense it may never become due and payable, is not subject to garnishment. ’ ’

And in 4 American Jurisprudence, 682, 683, Section 200, we find the same thought:

“Although as a general proposition, a debt presently and unconditionally owing, but not payable until a future date, is subject to attachment or garnishment, where a further performance of a contract is necessary before the money payable thereon becomes due, the view is generally taken that the payment is conditioned on the performance, and is not subject to garnishment until the condition has been fulfilled. The rule is said to rest on the view that ‘as a plaintiff can have no greater right against the garnishee than the defendant would have, and can occupy no better position with respect to the garnishee than the defendant could in a suit brought by him against the garnishee, it follows that where a contract between the defendant and the garnishee has not been fully performed by defendant at the time of attachment by plaintiff, the garnishee is not chargeable.’ ”

Ohio, so far as it has spoken, follows the general rule. In 4 Ohio Jurisprudence, 120, 121, Section 85, it is stated:.

‘ ‘ However, the controlling characteristic of the remedy by garnishment is, that the liability of the garnishee must originate in, and be dependent on, contract. Hence, with the exception of conveyances, transfers, or agreements to defraud creditors, garnishment cannot be employed to reach or subject any debt or demand, which the debtor, suing in his own name, could not recover in an action ex contractu. Credits not yet due are subject to attachment upon certain grounds. But the obligation to pay ultimately must at the time service is made on the garnishee be fixed without reference to future services or considerations. ‘Credit’ and ‘debt’ are used interchangeably according to the point of view.”

Now, before the insured was entitled to have the cash surrender value of this policy, it would have been necessary for him to prove: (1) That the premiums were in default, (2) an election by the insured to accept the cash value in lieu of non-participating extended term insurance, (3) the surrender or tender of surrender of the policy, and (4) finally, if the policy contained the automatic premium loan provision, no right to the cash surrender value, existed in any circumstances, at least so long as the election to that effect contained in the application remained unrevoked.

These provisions of the policy conditioned and limited the defendant’s liability, were of value to it, and would be destroyed by an order directing it to pay now what it is under no obligation to pay and conceivably might never be bound to pay. The automatic premium loan provision might be invoked by the insured, and after its exhaustion, all liability on the policy might be extinguished by default in payment of premiums.

We have been cited to no case holding under the circumstances here presented that a garnishment would lie. The authorities already commented on lend no support to the thesis. Our own investigation has disclosed no such case. There are many recent eases and their uniform tenor is that such a contingent liability furnishes no basis for garnishment. One of the more recent cases and typical of all is Ford v. Mutual Life Ins. Co. of New York, 194 Miss., 519, 13 So. (2d), 45. We quote from the opinion at page 527:

“ ‘The obligation of the garnishee-defendant to the principal defendant, which is made the jurisdictional basis of the attachment in chancery against the nonresident principal defendant, must be an indebtedness owing in praesenti by the said garnishee-defendant to the said non-resident principal defendant, and must be of such a nature that at the time the suit is filed the principal defendant could enforce the said debt against the said garnishee-defendant in a court of competent jurisdiction without regard to, and independently of, complainant’s suit or cause of action against the said principal defendant. “It is a general requisite of the right to hold a person as garnishee that, but for the garnishment, defendant would have a right of action against him, for defendant’s own use.” See Howell v. Moss Point Furniture Co., 136 Miss., 399, at p. 408, 101 So., 559, at page 560; Russell v. Clingan, 33 Miss., 535; McNeill v. Roache, 49 Miss., 436; Dibrell v. Neely, 61 Miss., 218; Southern Pac. Ry. Co. v. A. J. Lyon & Co., 99 Miss., 186, 54 So., 728, 34 L. R. A. (N. S.), 234, Ann. Cas. 1913D, 800; Bean v. Bean, 166 Miss., 434, 147 So., 306; Craig v. Gaddis, 171 Miss., 379, 157 So., 684, 95 A. L.R., 1494.’

“The authorities also generally hold that an advancement upon a life insurance policy of the accrued loan value, or less, is not such an obligation as will sustain a suit by the insurance company against the insured-borrower. The insured is entitled to the loan value of the policy as a matter of contractual right; the insurer owes the insured the money and has no right to refuse to advance, or pay, it upon proper request by the insured. The company cannot sue because the defendant could plead and set off the amount as owing by the company to him. The policyholder can pay the debt or not as he desires. If he does not, the policy is forfeited and he is entitled to the excess cash value, if any, of the policy over the advancement to him. The unpaid interest is added to the principal. The Mutual Life Insurance Company could not have obtained a judgment against Parker in this case.”

For these reasons, the judgment is reversed and the cause remanded with directions to enter judgment for defendant.

Judgment reversed.

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


author: Hurd, J.

text:
    Fisk, Appellant, v. Glechoff et al., Appellees.
    (No. 22237
    Decided December 3, 1951.)

      Mr. Allison M. Gibbons, for appellant.

      Messrs. Griswold, Leeper, Miller & Cory, for appellees.
   Hurd, J.

This cause, originating in the Municipal Court of the City of Cleveland as an action for money only, is appealed here on questions of law.

The case came on for trial on October 3 and 4, 1950, at which time evidence was presented by the respective parties. Following the presentation of evidence briefs were filed, and on January 2,1951, the trial court made the following entry:

“Parties in court. Trial had. Court finds for defendant and renders judgment for said defendant and for costs against plaintiff.”

This entry was made in the absence of the parties. Notice of the judgment, as journalized, was given by postal card and received by the parties on January 3, 1951. On January 4, 1951, the following entry appears:

“Motion by plaintiff for new trial with brief, filed and request by plaintiff for separate findings of fact and conclusions of law,filed.”

Thus, it will be observed that the day following notice of the entry of judgment by the court, a request for separate conclusions of fact and law was presented. After the filing of additional briefs, the trial judge made an entry on April 9, 1951, overruling the motion for new trial and denying the request for separate findings of fact.

There are four assignments of error, as follows:

1. The trial court refused to make separate findings of fact.

2. The trial court erred in admitting parol evidence to vary and contradict the terms of a written contract.

3. The trial court erred in refusing to strike from defendant’s answer the allegations that “plaintiff’s exhibit B never became a part of the contract” and in admitting oral evidence to prove the same.

4. The trial court erred in rendering judgment for defendants instead of in favor of plaintiff, on the pleadings and the evidence.

No bill of exceptions was filed with this appeal; consequently, we are unable to consider assignments of error Nos. 2 and 4 because they relate entirely to questions of admission and rejection of evidence and the weight of the evidence. See Carroll v. Employers Liability Assurance Corp., Ltd., 47 Ohio App., 146, 190 N. E., 590; In re Estate of Marshall, 78 Ohio App., 455, 66 N. E. (2d), 280.

The third assignment of error appears to be a question of mixed law and fact, which, having in part to do with evidence, likewise cannot be demonstrated in the absence of a bill of exceptions.

This leaves for our consideration assignment of error No. 1, which presents two questions for decision: (1) Is a request for such conclusions made in sufficient time when it is filed the day following the Municipal Court’s notice of entry of judgment? (2) Does it appear from the record in this case that appellants were not prejudiced by the court’s refusal?

Section 11421-2, General Code, provides:

“When questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court’s decision upon questions of law involved in the trial, one of the parties so requests, in which case, the court shall state in writing the conclusions of fact found separately from'the conclusions of law.”

It will be noted that the section is silent as to the time when such request shall be made. Therefore, it is necessary to look to decided cases to determine when and under what circumstances a request is timely made. The most authoritative pronouncement on this subject is to be found in the case of Levick v. Bonnell, 137 Ohio St., 453, 30 N. E. (2d), 808. That case originated in the Municipal Court of Cleveland and also was an action for money only. The facts are closely analogous to those of the instant case. That case went to trial before a court and jury, but when both parties moved for a directed verdict at the close of all the evidence, the trial court was thereby clothed with jurisdiction to adjudicate the issues. Thereupon the court overruled defendant’s motion, granted plaintiff’s motion, and entered judgment for plaintiff in the sum of $671 and costs.

The following day, the defendant filed in writing a request for separate findings of fact and conclusions of law, which was denied by the trial court. On appeal to the Court of Appeals, the judgment was “reversed for error of law in refusing to make findings of fact and law as requested.” The Supreme Court, upon the allowance of a motion to certify, affirmed the judgment of the Court of Appeals. The second paragraph of the syllabus is as follows:

“2. Section 11421-2, General Code, applies to cases tried before the Municipal Court of Cleveland, other than those cases within the exclusive jurisdiction of a justice of the peace.”

In the opinion, at page 456, Turner, J., speaking for the court, said:

“In the Municipal Court (of Cleveland), journalization of the court’s order is a somewhat informal matter. In this case there was no entry submitted to counsel. The defendant had no opportunity to make the request before it was journalized. To require parties to make the demand for conclusions in advance would increase unnecessarily the work of the trial court.- We hold that the request for conclusions made in this case on the day following the entry of the court’s judgment toas in time.” (Emphasis and matter in parenthesis supplied.)

Counsel for defendant have cited a number of cases, including Nimon v. Klein, 43 Ohio App., 314, 183 N. E., 189; Parker v. Dales, 13 Ohio Law Abs., 655; City of Toledo, for use of Horan, v. Barnes, 1 N. P., 188, 2 O. D., 590; Yetter v. Kleinman, 34 Ohio App., 433, 171 N. E., 362, all of which were decided prior to the Levick case, supra. Therefore, the holding in Levick v. Bonnell must be considered as decisive of the questions in this case, unless the legislative changes in procedure in respect of entry of judgments and motions for new trial, effective October 11, 1945, under Section 11575 to 11578, General Code, as amended, make inapplicable now the principles therein pronounced.

Section 11575, General Code, as amended, reads:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment, or decree by the court. ’ ’

This amendment changed the definition of a new trial from a re-examination of only the issues of fact in the same court to a re-examination of all the issues both of law and fact, and by virtue of this amendment such motions are addressed to the judgment and are applications to vacate judgments as well as motions for new trial. See Duemer v. Duemer, 86 Ohio App., 192, 88 N. E. (2d), 603; McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225.

The applicable part of Section 11578, General Code, provides:

‘ ‘ The application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization # * # > >

Prior to the adoption of this amendment, the filing of a motion for a new trial within three days after the verdict or decision was a necessary prerequisite, and the overruling of such motion was a final order from which appeal could be prosecuted. By analogy, therefore, a request for findings made before journalization of judgment was timely.

Section 11599, General Code, as amended September 27, 1947, provides for the journalization of a judgment upon a verdict of the jury. It will be noted that this section applies by its language only to cases tried by a jury, and it has been held that this section does not apply to a case tried by a court. See, also, Craig v. Welply, 104 Ohio St., 312, 136 N. E., 143.

A review and comparison of the statutes governing procedure after trial, both prior to and after the amendments, leads to the conclusion that the amendments do not make inapplicable the principle announced in Levick v. Bonnell, supra.

We think we should allude to one distinguishing feature between the two cases, and that is that in the Levick case, counsel for the parties were in court at the time of the court’s announcing and entry of .judgment, whereas, in the instant case, the presentation of evidence was some 60 days prior to the judgment of the court which was entered in the absence of the parties and without their knowledge. The record shows that upon notice of the entry of judgment and “the informal manner in which it was entered in the Municipal Court,” the plaintiff promptly filed a request for findings of fact and conclusions of law. Under the circumstances, and deciding no more than we feel called upon to decide in this case, we must hold that the request for findings was timely made and should have been granted.

We have examined the record in this case, and have concluded that the second question posed above must also be answered in the affirmative, because we are unable to determine without a bill of exceptions and without conclusions of law and conclusions of fact that the appellants were not prejudiced by the court’s refusal.

We have reached the conclusion, however, that it is unnecessary to retry this case in the Municipal Court, but that it is necessary only to reverse and remand the case with instructions to the trial court to make findings of fact and conclusions of law, and to vacate the judgment and re-enter the same as of the date of the filing of such findings of fact and conclusions of law, thus reserving to the parties their respective rights of appeal after such findings have been made. We have determined that this procedure will result in equal justice to all parties to this action and will enable the plaintiff to raise the issues of law attempted to be raised on this appeal.

Judgment accordingly.

Skeel, P. J., and Thompson, J., concur.


author: Phillips, J.

text:
    The Farmers Savings & Loan Co., Appellee, v. Kline, Appellant.
    (No. 3461
    Decided November 8, 1951.)

      Messrs. Zieger & Coope, for appellee.

      Mr. W. L. Countryman, for appellant.
   Phillips, J.

Plaintiff bank held mortgages on a property owned by Lester Creed and his wife, Letitia Creed, and on another property owned by Gerald F. Carver and his wife, Jean E. Carver.

On May 5, 1949, the officers of plaintiff bank signed the following release of its mortgage on the property of Gerald F. and Jean E.' Carver: “The conditions of this mortgage have been complied with and the same is here satisfied and discharged.” Subsequently, that release was filed with the recorder of mortgages of Mahoning county for record.

On May 7, 1949, that release was mistakenly recorded by such recorder on the margin of the mortgage plaintiff bank held on the property of Lester and Letitia Creed situated at Shilling Mills, where they conducted a restaurant.

On June 13,1950, defendant, Kline, obtained a judgment against Lester and Letitia Creed in the Court of Common Pleas. A search of the records of the clerk of that court and of the recorder of Mahoning county, made by Mm subsequent to June 13, 1950, revealed such mortgage had been released, and that the Creed property was free of judgment and mortgage liens.

Claiming he was induced and influenced to withhold issuance of an order of sale of Creed’s property to permit them to sell it and thus save them court costs, defendant claims he refrained from issuing such order of sale timely.

Subsequently, Lester and Letitia Creed had domestic difficulties, as the result of which their business declined, and Letitia Creed refused to join Lester Creed in a deed to either of two bona fide purchasers of their property for an amount in excess of what it could have been sold for at the time of trial in the Court of Common Pleas.

In September 1950, by the action we review, filed in the Court of Common Pleas, plaintiff bank claimed a lien on Creed’s property, and contended that the release and satisfaction quoted supra, and delivered to the recorder of Mahoning county, was intended as a release of its mortgage on the property of Gerald F. and Jean E. Carver, and prayed the Court of Common Pleas to strike from the recorder’s record of its mortgage on the Creed property the mistakenly recorded cancellation and satisfaction, and that its mortgage lien be declared a lien on their property prior to defendant’s judgment lien.

The trial judge held, and entered his judgment accordingly, that since the recorder mistakenly released the plaintiff’s mortgage on Creed’s property the lien of plaintiff bank was entitled to be restored, and he restored its mortgage to priority over defendant’s lien, and held:

“An order to correct the mistake of the recorder by removing the Creed mortgage cancellation and entering such cancellation as of the Carver mortgage has, on motion, been made and is hereby renewed.”

Defendant Kline appealed from the finding and judgment of the trial court to this court on questions of law, and by brief inquires: “Does the restoration to record of a mortgage which has been recorded as discharged operate to endow it with priority over a lien obtained by an innocent third party during the time the discharge of said mortgage was of record?”

By sole assignment of error defendant contends that: “The conclusion reached, and the judgment rendered by the trial court, is contrary to the law of Ohio in that it restored the lien of a mortgage which had been unqualifiedly released and cancelled of record, and in so doing awarded to said mortgage priority over the lien which had been acquired during the time said mortgage was released of record”; and consequently contends such judgment is prejudicially erroneous to defendant Kline.

It is conceded that such a mistake of the recorder can be corrected, but not ‘ ‘ at the expense of and to the prejudice of innocent intervening third parties.”

Appellant argues that if, as provided by Section 8542, General Code, mortgages are effective from the instant of delivery to the recorder for record, likewise release of a mortgage is effective from the instant of delivery thereof to such recorder.

In the ease of Commercial Building & Loan Co. v. Foley, 25 Ohio App., 402, 158 N. E., 236, in which the facts were similar to those in the case we review, the court said:

“While the courts are not in accord on this question, the great weight of authority supports the right of plaintiff to enforce the lien of its mortgage. * * *

“It is said in Heyder v. Excelsior Building Loan Assn., supra:

' “ ‘Between a mortgagee, whose mortgage has been discharged of record, solely through the unauthorized act of another party, and a purchaser who buys the title in the belief, induced by such cancellation, that the mortgage is satisfied and discharged, the equities are balanced, and the rights, in the order of time, must prevail. The lien of the mortgage must remain, despite the apparent discharge.’ ”

In the opinion written in the case of Commercial Building & Loan Co. v. Foley, supra, the court cited the case of Harris v. Cook, 28 N. J. Eq., 345, and said:

“* * * that parties purchasing land may effectually protect themselves by requiring some proof that preceding mortgages have in fact been satisfied. But nothing, said the court, short of constant watch will protect a mortgagee against the making of a false entry of satisfaction.”

In paragraph one of the syllabus of the case of Commercial Building & Loan Co. v. Foley, supra, the court announced as the law of that case that:

“Where a first mortgage on real property is released on the record by the mistake of the recorder and thereafter the property is mortgaged to a second mortgagee and sold to purchasers, all of whom relied upon the record and did not know of the mistake, the first mortgage may be foreclosed against the second mortgagee and the purchasers, since none of the parties are at fault and all are equally protected by statutes, and in this situation the oldest claim must prevail. ’ ’

There seems to be no doubt that where, as in the case we review, the recorder mistakenly cancelled plaintiff’s mortgage held on the property of Lester Creed and Letitia Creed instead of that held on the property of Gerald F. Carver and Jean F. Carver a court of equity may, as the trial court did, grant relief to plaintiff and set the erroneously made cancellation aside, notwithstanding that since the cancellation of the mistakenly cancelled mortgage judgment liens máy have attached to the lands, especially when by granting such relief defendant was not damaged.

If the recorder had not made the mistake to which reference has been made, defendant’s lien would have been junior to the mortgage lien of plaintiff bank, and by correcting such mistake defendant’s lien position remains the same.

The evidence does not support defendant’s contention that he “was induced by reason of the state of the record to pursue a course which if now taken from him will result in denying to him a lien, and that the property in question will not support the liens of the respective parties.”

Our conclusion, which is supported by 59 Corpus Juris Secundum, 364 to 367, is that the judgment of the Court of Common Pleas must be and hereby is affirmed.

Judgment affirmed.

Griffith, J., concurs.

Nichols, P. J., concurs in judgment.


text:
    Tanski, Appellee, v. White et al., d. b. a. White Mfg. Co., Appellants.
    (No. 22393
    Decided March 17, 1952.)

      Mr. R. A. Baskin and Mr. A. G. Knight, for appellee.

      Mr. Robert Merkle, for appellants.
   Hurd, J.

This is an appeal on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County in favor of plaintiff upon a jury verdict rendered in the sum of $2,200.

Although the trial of the case commenced October 15, 1951, and extended through October 18, 1951, and although there was presented the testimony of many witnesses, including two for plaintiff and eight for defendants, the record is silent as to the subject of their testimony. The bill of exceptions is an abbreviated one. It contains none of the evidence presented at the trial, being confined only to a transcript of the general charge of the court and certain proceedings thereafter concerning a request of the jury for further instructions.

Counsel for defendants insistently asserts that the record in this abbreviated form is abundantly sufficient to demonstrate prejudicial error (a) in the general charge of the court to the jury, and (b) in certain proceedings wherein it is claimed that the court failed to give additional instructions as provided by law.

It is well settled that a reviewing court cannot consider claimed error in a charge where the correctness thereof is dependent on evidence, in the absence of a bill of exceptions containing all the evidence. See Elser v. Parke, 142 Ohio St., 261, 51 N. E. (2d), 711, paragraph four of syllabus, as follows:

“Where the correctness of the charge of the court to the jury is dependent upon the evidence and the bill of exceptions does not contain all of the evidence a reviewing court cannot say that portions of the charge to the jury which are complained of were not properly given.”

See, also, Hanauer Automobile Co. v. Evans, 12 C. C. (N. S.), 512, 21 C. D., 662, affirmed without opinion in 86 Ohio St., 330, 99 N. E., 1126.

But it is here claimed that the prejudicial error in the charge is so clear on the face of the record that no evidence is necessary to a demonstration of the same.

In the absence of a record setting forth the evidence adduced upon trial, whereby the claim of error in the charge may be adequately tested, we must look to the issues developed by the pleadings and compare the same with the charge to determine whether prejudicial error is demonstrable on the face of the record.

Plaintiff’s petition alleges in substance that defendants, W. V. White and Judith White, were doing business as partners under the firm name of White Manufacturing Company at 17928 Hillgrove avenue, Cleveland, Ohio, and that they are indebted to plaintiff in the sum of $2,529.66 for materials furnished and work, labor and services done and performed by plaintiff for the defendants at divers times between February 1, 1949, and July 2, 1949, inclusive, all at their special instance and request and to their full satisfaction.

Plaintiff alleges further that the materials furnished and work, labor and services performed for the defendants were reasonably worth the sum of $2,529.66 and that the sum of $273 had been paid by defendants, leaving a balance due and owing of $2,256.66, for which amount judgment is prayed.

For his second cause of action, plaintiff avers that the work, labor and services performed by him and materials furnished at the special instance and request of defendants were for the building of certain, small boats designed to be used for amusement park purposes; that because defendants failed to pay the claim of plaintiff as aforesaid, he has retained possession of the last five of such boats and holds the same in his possession claiming the benefit of an artisan’s lien thereon.

To the petition of plaintiff, the defendant W. V. White filed his answer denying that he and the defendant Judith White were partners doing business under the name of White Manufacturing Company, or any other name; denying that he or J udith White are indebted to the plaintiff in any sum whatsoever; and denying specifically that they or either of them ever requested plaintiff to perform any work or labor or to furnish any materials for them or either of them on or after February 1, 1949. For his answer to plaintiff’s second cause of action, defendant denies that the materials furnished and work, labor and services performed, referred to in plaintiff’s petition, were at the instance, request or employment of the defendants or either of them and denies that plaintiff has or is entitled- to possession of the five boats by way of an artisan’s lien or any other kind of lien.

By interlineation, defendant avers that he and the plaintiff were partners in the business of manufacturing and selling the boats described in plaintiff’s petition.

Defendant W. V. White by way of cross-petition incorporates the allegations of his answer, and alleges that he and the plaintiff entered into a partnership for the manufacture and sale of “Kiddie-Boat Rides,” which are described at length in the cross-petition. He then alleges in substance that plaintiff’s function in such partnership was to assist the defendant in supervising the manufacture of such boats, including supervision of the workmen, and to work himself on the manufacture and delivery of such products; that it was defendant’s duty in such partnership to have charge of the purchases, sales, collections, payment of bills and general management of the business, as well as to work on the manufacture of said articles; that both plaintiff and defendant were to render such services for the benefit of the partnership without compensation, except for such profits as they might be entitled to receive from the business; that plaintiff and defendant were equal partners in the business; that the profits, if any, were to be shared equally between them; that in the event the business sustained losses, these were likewise to be equally borne and paid by them; and that the partnership business was terminated on or about July 1, 1949.

Defendant alleges further that in connection with the business he collected the total sum of $4,325; that he has expended for labor, materials and other expenses of the business the total sum of $5,494.06; that he has withdrawn no money from the business but that the plaintiff has withdrawn from said business the total sum of $349.41; that there are unpaid bills; that the business has resulted in losses; that the plaintiff is obligated to reimburse the defendant for one-half of the net losses of the business; and that an accounting should be ordered between the parties. The cross-petition concludes with a prayer for such an accounting, for the dismissal of the plaintiff’s petition, for a determination and adjudication of the amount due to the defendant from the plaintiff, and for judgment to be entered in defendant’s favor for such amount.

The answer of defendant Judith White is in the form of a general denial, denying all the allegations of plaintiff’s petition.

For his amended reply to the answers of defendants and in answer to the cross-petition of W. V. White, the plaintiff denies each and every allegation set forth in the'answers and cross-petition not before specifically admitted to be true.

We shall now consider in sequence the three grounds of error assigned by the defendant.

The first ground of error asserted is: “The court erred in its instructions to the jury as to the elements of an implied contract. ’ ’

Counsel has selected an excerpt from the charge consisting of one sentence relating to the elements of an implied contract, which it is claimed is prejudicially erroneous. The language of the court to which objection is made is as follows:

“A man may also work for another without an express contract, yet, if from all the surrounding facts and circumstances it is to be inferred that he performed his personal services with the expectation of receiving compensation either in the form of wages or salary, for his work, then an implied contract exists. ’ ’

The defendants then argue that this sentence clipped from the general charge is erroneous in that it does not contain all the elements necessary to a complete definition of an implied contract.

We must agree that the sentence standing alone is subject to criticism in that it fails to include the essential element of mutuality of assent requisite to an implied contract. Standing alone, this definition would entitle plaintiff to recover if he were a mere volunteer. It is not alone sufficient that a person perform services with the expectation of receiving compensation, but to encompass the principle of mutuality necessary to a contract implied in fact, it is elementary that the services be rendered, work performed, or materials furnished by one person for another under such circumstances that the party to be charged either knew or understood or should have known or understood that the services were given and received with the expectation of being paid for on the basis of their reasonable worth. This being so, the question arises whether the part of the change complained of standing alone constitutes prejudicial error. Here we must notice and adhere to a well recognized and established principle that upon review the charge must be taken as an entirety. If from the whole charge the law of the case appears to have been correctly stated to the jury, it will not be deemed prejudicially erroneous and the judgment may not be reversed because one sentence standing alone may be misleading or even erroneous. The law of Ohio on the subject is well stated in 39 Ohio Jurisprudence, 941, 942, Trial, Section 261:

“The broad general principle is that the charge to the jury is to be considered as a whole; not piecemeal, and all parts harmonized, if possible, giving to the words and language their plain and ordinary signification. It is not proper to single out sentences, paragraphs or excerpts or take isolated sentences and statements and give them independent meaning, when, taken in connection with the whole charge, they will have a different meaning. ’ ’

Again, in 2 Ohio Jurisprudence, 1423, Appellate Review, Section 755, supported by an exhaustive list of Ohio cases, the following comment is made:

“In determining the question of prejudicial error in the instructions of the trial court to the jury the charge must be taken as a whole and the portion which is claimed to be erroneous must be considered in its relation to, and as affected by, the other parts of it. * * * If, from the entire charge, it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error can be held to have resulted. That sentences may be clipped therefrom, which, standing alone, appear as error, is a condition which attaches to the expression of language in any form, and instructions to a jury are no exception to the general rule. * * * Consequently, if the charge considered as a whole appears to be fair and proper and to state the law of the case correctly and in a way reasonably calculated to enable the jury to understand the rules of law which they are to apply to the evidence before them, the judgment will not be reversed because the language of some part of the charge may, if taken alone, be objectionable or subject to criticism, or because some clause, sentence, or paragraph standing by itself is erroneous, inaccurate, obscure, ambiguous, or misleading or confusing.”

Before proceeding to an analysis of the issues raised by the pleadings, we desire to notice another proposition of law which, briefly stated, is that the factual conclusions of a trial judge in his charge must be presumed to be correct on review where the bill of exceptions does not contain the evidence in the case. Bradley v. Cleveland Ry. Co., 112 Ohio St., 35, 146 N. E., 805; Hines v. Office (Ohio App.), 21 Ohio Law Abs., 553; Samuels v. Cincinnati Traction Co., 26 C. C. (N. S.), 463, 28 C. D., 240.

The record herein discloses the following factual conclusions of the trial court in his charge, which, in the absence of evidence, must be presumed to be correct upon this review:

“Now, then, what is the issue, or what are the issues that you must determine in this case ? It is established without dispute that between the 1st or 2nd of February, 1949, and the 2nd of July, 1949, an amusement park device known as the Kiddie-Boat Ride was constructed in a building located at 21800 St. Clair avenue in the city of Euclid, Ohio, and that this device consisted of five wooden boats, one of which boats was powered by gasoline motor, and these boats were attached to steel sweeps which rotated around a central or center axle and that axle was in the center of a circular canvas tank. It is further established that these Kiddie-Boat Rides were constructed during this period under the name of the White Manufacturing Company.”

“It is further established that the plaintiff, between February 1st or 2nd, 1949 and July 2, 1949, performed personal services consisting in part of woodworking, in part of manufacture or making of jigs and patterns and some other duties in connection with the construetion of Kiddie-Boat Rides and that during the period in question, three, and only three of these units were completed. It is the claim of the plaintiff in this case that he performed these services during the time in question as an employee of either or both of the defendants, Judith White and W. V. White, doing business as the White Manufacturing Company.

‘ ‘ This claim of the plaintiff is denied by the defendants. In elaboration of their denial of the plaintiff’s claim, the defendants, W. V. White and Judith White assert that on or about the first or second day of February, 1949, the plaintiff and defendant, W. V. White, entered into an oral agreement of partnership, and that the services performed by the plaintiff were performed not as an employee, but as a partner of the defendant, W. V. White.

“These conflicting claims of the plaintiff and the defendant make up the issue in this case.”

In the absence of evidence, the defendants are not in a position to challenge the accuracy or correctness of the conclusions which the trial judge stated were established without dispute. Moreover, the issues as defined by the trial court are in complete harmony with the issues developed by the pleadings, for it will be observed from an analysis of the pleadings that an issue was clearly and sharply drawn as to whether an employer-employee relationship existed between plaintiff and defendants under which materials were furnished and work, labor and services performed, or whether as claimed by defendant W. V. 'White a partnership existed between the parties whereby they were to share equally in the profits and losses. In our opinion this was the essential and controlling issue made by the pleadings.

In this respect, the cross-petition of W. V. White asserts affirmatively that the plaintiff was to furnish materials and render services under a partnership agreement and by clear implication concedes that such materials were furnished and services were performed because he claims the right of contribution from the plaintiff for losses of the alleged partnership venture'. The defendants cannot blow hot and cold on this proposition at one and the same time. In this view of the case, the lack of completeness of the quoted sentence from the charge in respect of the elements of an implied contract can not be considered as prejudicial.

There is still another reason why the charge of the court cannot be considered prejudicially erroneous on this review.

By this action, plaintiff sought to recover compensation for materials, work, labor and services furnished to the defendants at the special instance and request of defendants. This imports an express contract in relation to the employment and contemplates an employer-employee relationship. In the absence of an express agreement for a specific amount to be paid for the services, the law implies a promise to pay what the services are reasonably worth.

Relative to this and the relationship of the parties, the court charged:

“In connection with and in considering this issue [relationship of parties] you will bear the following rules of law in mind:

“First, neither a contract of employment nor a contract of partnership need be in writing.

“Second, a contract may be either express or implied or partly express or partly implied. An express contract is one in which the terms of the contract are explicitly and definitely agreed to. An implied contract is one in which the fact of the contract as well as the terms of the contract are inferred from all of the surrounding facts and circumstances. A man may work for another under an express contract. A man may also work for another without an express contract. Yet-, if from ail the surrounding facts and circumstances it is to be inferred that he performed his personal services with the expectation of receiving compensation either in the form of wages or salary for his work, then an implied contract exists.”

Thereupon the court defined correctly and in detail the essential elements of a partnership contract and continued with the charge as follows:

‘‘If you find from a preponderance of all the evidence that the plaintiff performed the personal services during the time in question as a partner of the defendant, W. V. White, or if you find from a preponderance of all the evidence that the plaintiff has failed to prove that he performed these personal services as an employee of either or both of the defendants, then, in that event, you will find the issue in this case in favor of the defendants. Your deliberations will then be at an end and your verdict will be in favor of the defendants. But, if on the other hand, from a preponderance of all the evidence, you find that the plaintiff during the time in question was an employee of either or both of the defendants, and that he performed his personal service as an employee of either or both of the defendants, doing business as the White Manufacturing Company, then you will find in favor of the plaintiff on the issue of this case and will return a verdict in his favor, against either or both of these defendants. ’ ’

In this state of the case and in viewing the charge in its entirety, we think that the trial court did not commit error prejudicial to the rights of defendants. Therefore, assignment of error No. 1 must be overruled.

This brings us to a consideration of the second ground of error asserted as follows:

‘‘The court erred in not giving additional instructions to the jury after the jury returned to the courtroom and the foreman stated that the jurors ‘were slightly in doubt as to missing a few things down there.’ ”

A condensed statement of the record showing the proceedings when the jury returned to the courtroom indicates that the court inquired as to whether the jury had arrived at a verdict. The foreman replied in the affirmative, then inquired whether he could ask the court a question, saying, ‘ ‘ we were slightly in doubt as to missing a few things down there, I hope that is complete.” Thereupon, at the request of the court, a discussion was had between court and counsel out of the hearing of the jury and outside the record. Thereafter, the court addressed the jury by reading to it verbatim from the verdict which was for the plaintiff and against both defendants but in which the amount of the verdict was not inserted in the blank space provided therefor. The court then stated to the jurors in substance that if they intended by the verdict not to award the plaintiff any money they should sign a verdict for the defendants, but if they intended to return a verdict for the plaintiff and allow a specific sum of money, then the amount thereof should be inserted in the verdict. The court then inquired of the foreman if that answered any questions he may have had in his mind. To this the foreman answered: “Yes, Your Honor, except we didn’t have any exact figures.” The court then said: “Well, that will be something that you will have to work out from your recollection of the evidence and determine on the basis of what you finally conclude.” The court then instructed the jury to go out again with all the verdict forms and continue its deliberations.

The jury foreman then made the following statement :

“The thing, Your Honor, we don’t want in any way, want to go — the figures, no one thought to write down, you know, when you were ending up your summation before you sent us up. So, I think you stated several things there and we agreed on one, but — I mean, no one knew just exactly what to put down because we didn’t want to — I didn’t know any statement that would cover — . ’ ’

To this statement, the court replied that under the circumstances he would ask them to continue their deliberations in accordance with the instructions he had given them and “see if you can, pursuant to those instructions, determine what you want to do in the matter. ’ ’

It is the contention of the defendants that the jury, through its foreman, was requesting additional instructions as to the law of the case.

In our view, this contention is not supported by the record. The statements made by the foreman are rather indefinite and uncertain. It appears, however, that the inquiries were about evidence and particularly that part of the evidence summarized by the court in relation to the “figures” which the foreman stated “no one thought to write down.”

Section 11420-6, General Code, which defines the duty of the court in respect of additional instructions requested by the jury, reads as follows:

“After the jurors retire to deliberate, if they disagree as to the testimony, or desire to be further informed on the law of the case, they may request the officer in charge to conduct them to the court, which shall give the information sought upon matters of law, and also, in the presence of or after notice to the parties or their counsel, may state its recollection of the testimony upon a disputed point.”

From this it may be observed that this statute makes it mandatory upon the trial judge to give additional information upon matters of law but discretionary only to state his recollection of the testimony upon any disputed point.

Counsel for both the plaintiff and defendants cite and quote from the case of State v. Kennedy, 72 Ohio App., 462, 52 N. E. (2d), 873. In that case, at page 468, Matthews, J., speaking for a unanimous court, said:

“Under Section 11420-6, General Code, it is made the duty of the court to give the jury any additional information on the law requested by it, and may, but it is not required to, state its recollection of the testimony upon any disputed point. The jury should be given the opportunity, which the law contemplates, to make a request.”

To the same effect see Fraser v. Hathaway, 71 Ohio App., 317, 49 N. E. (2d), 783.

In the instant case, as shown by the record, the jury was afforded every opportunity to make the request. The foreman did not indicate any disputed point concerning the testimony, nor did he request any additional instructions as to the law of the case. In view of the plain and unambiguous language of the statute, which leaves it to the sound discretion of the court to advise the jury as to his recollection of the testimony upon any disputed point, we conclude that the court did not commit prejudicial error when leaving it to the jury to determine the issues upon its own recollection of the evidence.

The verdict was well within the limits of the instruction, and we conclude that the defendants were not prejudiced by the action of the court at this point in the proceedings. Therefore, assignment of error No. 2 must be overruled.

The third assignment of error is that the court erred in overruling the motion for a new trial.

The defendants asserted eight grounds of error in their motion. Five of these grounds related to questions of evidence which cannot be considered upon review in the absence of a bill of exceptions showing the evidence. Another ground relates to the proceedings after the jury returned to the court room, which we have fully discussed. The claimed error of the court in the charge to the jury assigned on this appeal was not specified in the motion for new trial. The remaining two assignments are that “the verdict was contrary to law” and for “other errors apparent upon the face of the record.”

In our opinion the court did not err in overruling the motion for new trial.

Finally, for the reasons set forth herein generally, we conclude that no prejudicial error having intervened, the judgment must be and is affirmed.

Judgment affirmed.

Skeel, P. J., and Thompson, J., concur.


author: Hildebrant, P. J. Matthews, J.,

text:
    Gibson, Appellee, v. The National Life & Accident Ins. Co., Appellant.
    (No. 996
    Decided June 5, 1952.)

      Messrs. Casper é Casper, for appellee.

      Mr. Ervin L. Bramlage, for appellant.
   Hildebrant, P. J.

This appeal on questions of law is from a judgment entered on a jury verdict awarding to plaintiff the death benefits provided in a policy of insurance issued November 29, 1948, on the life of Bobby L. Gibson, seven-year-old son of plaintiff, who died on January 26,1949, and containing the following provision:

“This policy shall take effect on date of issue, provided the insured is then alive and in sound health, but not otherwise.”

A similar verdict obtained at a former trial was set aside and new trial granted by the court as being manifestly against the weight of the evidence, so that the question of the weight of the evidence is not considered by this court by reason of its decision in Snow v. Cincinnati Street Ry. Co., 80 Ohio App., 369, 75 N. E. (2d), 220.

Error is assigned to the refusal of the Common Pleas Court to grant defendant’s motion for a directed verdict at the close of all the evidence, and its motion for judgment non obstante veredicto.

The provision as to sound health being in the nature of a warranty, the burden of proof rests upon the defendant to show a breach thereof. Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St., 1, 119 N. E., 132; Frudiger v. National Life & Accident Ins. Co., 73 Ohio App., 138, 55 N. E. (2d), 143.

Examination of the record discloses that plaintiff testified on direct examination as follows:

“Q. What was his condition — Bobby’s condition — -so far as you know at that time when Mr. Hotchkiss delivered the policy? A. He was going to school.”

And, on cross-examination:

“Q. In that application you stated that Bobby was in sound health, did you not? A. To the best of my knowledge.

“Q. Did you make that statement or did you say, Yes, he was in sound health? A. I said as far as I knew lie was well. I said that to all of the policies— application. ’ ’

Karl D. Hotchkiss, the insurance collector and salesman who took the application November 15, 1948, and delivered the policy November 29, 1948, testified on call of the plaintiff as follows:

“Q. Did you see Bobby Ginson [sic] on several occasions? A. Yes, sir.

“Q. What was his appearance so far as you were able to observe? A. Good.

“Q. What was he doing? A. I wouldn’t recall that any more than other children.

“Q. Was he a robust-looking child? A. So far as I could see — he wasn’t thin at all.

“Q. Did he appear to be of sound health? A. Yes.”

The above is all the evidence offered by the plaintiff on the subject of sound health.

To sustain the burden resting upon it, the defendant offered the death certificate in evidence showing the immediate cause of death as lobar pneumonia due to chronic nephritis, due to gastro enteritis. The insured’s own doctor then testified to treating him from the year 1946 for chronic nephritis, during which time he was three times a patient in Children’s Hospital, to wit: In June 1946; in October 1948, less than a month before the application for insurance was taken; and, lastly, in January 1949, three days before he died.

The doctor further explained that the immediate cause of death shown on the death certificate as lobar pneumonia was the terminal disease in any wasting debilitation ailment, such as chronic nephritis, which usually carries the patient away.

The record shows the Children’s Hospital admissions, and is replete with evidence of the doctor attending the insured.

On cross-examination, the plaintiff, in answer to the question, “Did Dr. Schaen tell you he had a kidney disease?” answered, “Yes.” Also, plaintiff admitted the truth of the medical testimony as to hospitalization and treatments.

In Magyar, Admx., v. Prudential Ins. Co., 133 Ohio St., 563, 15 N. E. (2d), 144, the court said in the opinion at page 564:

“The undisputed evidence in the Magyar case is that the cause of the death of the insured was myocarditis, and there is no contradiction of the positive testimony of his attending physician that the insured had suffered from and had been treated for that very disease during the period of approximately two years prior to the issuance of the policy in question. This physician testified in detail as to the physical conditions developed as a result of myocarditis and observed by him upon examination of the insured at various times during the period stated, and that the conditions found by him upon examination of the insured seven days prior to his death ‘so far as the heart was concerned’ were the same as found earlier, ‘only in advanced stages.’

“It is disclosed further that the examination of the insured by two other physicians within the same period resulted in a finding of high blood pressure by one of them and they both prescribed ‘light work.’ The insured was not employed at any work subsequent to March 3, 1932, and the reason for his absence from work, assigned on the record of his employer, was ‘sickness.’ The only other evidence touching the question of the condition of the insured’s health at the time of the issuance of the policy was the testimony of his son and of a former agent of the defendant company that the insured then looked or appeared in good health, and the testimony of his widow that ‘he was in good health,’ before his last sickness.

“It is to be observed that the only evidence of any probative effect respecting the actual physical condition of the insured at the time of the issuance of his policy was that of the physicians referred to, and therefore that there is no conflict whatever in the evidence adduced which may be considered to be of probative value upon the sole issue in that case.'”

In the Vida case, reported in the same opinion with the Magyar case, supra, the court found a conflict in the evidence presenting a jury question, and reached a different conclusion.

In the Frudiger case, supra, the court found the defendant had failed to sustain the burden of proving a breach of the “sound health” provision by failing to produce medical testimony on that point, the inference being that if it had the court would have been required to reach a different conclusion.

In the case at bar, the medical evidence adduced by defendant seems absolutely conclusive that the insured was not in sound health at the time of execution of the policy, so that, under its terms, it never became effective as such. While the court considers it immaterial to this issue, the evidence of unsound health at the time the application was made is so overwhelming as to draw into question the good faith in making it.

It, therefore, appears here, as in the Magyar case, supra, that the only evidence of any probative effect respecting the actual physical condition of insured at the time the policy was issued was the medical evidence offered by the defendant, so that there cannot be said to be any conflict in the evidence of probative value on the issue of sound health.

We, therefore, believe the rule in Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, should have been followed, and it was error to refuse to grant the motion for directed verdict at close of all the evidence or the motion for judgment non obstante veredicto, so that the judgment is hereby reversed, and final judgment is entered for the defendant.

Judgment reversed.

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

Matthews, J.,

dissenting. The only error assigned is that the court should have instructed the jury to return a verdict for the defendant on the ground that the evidence shows that the insured was not in sound health at the time of the delivery of the policy.

The burden of proving that the insured was not in sound health was upon the defendant. Mumaw v. Western & Southern Life Ins. Co., 97 Ohio St., 1, 119 N. E., 132. To justify the sustaining of such a motion in any case, it must appear that there is no substantial evidence of sound health. This, it seems, certainly should be the rule when, as in this case, the motion is made by the party upon whom the burden rests and the credibility of witnesses is presented.

In this case, there is evidence by the insured’s mother that he was in good health. If her testimony is accepted as true, the jury could, within reason, decide that whatever his ailment, it was not such that tended to weaken his constitution and increase the insurer’s risk.

This verdict is the second one that has been found in plaintiff’s favor, and while I have some doubts, I have concluded that it cannot be said that there is no substantial evidence of good health.

For these reasons, the judgment' should be affirmed.


text:
    Peterchak, Appellee, v. Carnegie-Illinois Steel Corp., Appellant.
    (No. 3481
    Decided November 16, 1951.)

      Messrs. Trawler & Beil, for appellee.

      Messrs. Manchester, Bennett, Powers & Ullman, for appellant.
   Phillips, J.

Defendant, a steel corporation amenable to the Workmen’s Compensation Act of Ohio and a self-insurer thereunder, appeals on questions of law from a judgment of the Court of Common Pleas entered upon a jury verdict returned for plaintiff in Ms action filed therein to review his claim of right to participate in the workmen’s compensation fund of Ohio, which was denied him upon rehearing by such commission.

Plaintiff filed his claim to recover compensation for injuries sustained while in defendant’s employ, and, allegedly, while acting within the course and scope of his employment with it as a millwright in March 1947.

On March 18, 1947, when plaintiff returned from work at his place of employment with defendant steel corporation, his wife advised him that his right eye was red, to which he responded that he did not remember anything entering it.

About 7:00 p. m. on March 21, 1947, plaintiff applied for first aid to his right eye at defendant’s emergency hospital, complained that it was sore, and related to the nurse in charge and also to his foreman, the conversation had with his wife.

In response to arrangements made by defendant’s nurse-employee, plaintiff consulted an eye specialist who treated him for five weeks for “purulent conjunctivitis” of the right eye “due to outside infection.” The cornea of plaintiff’s right eye was scarred, and such conjunctivitis subsequently spread to the left eye. Plaintiff gave the specialist no history of the presence of a foreign body in either eye.

Plaintiff’s witnesses, fellow employees, testified:

“Q. You didn’t see Peterchak get anything in his eye, did you? A. The answer is: When?

“Q. When? On March 21st, 1947. A. 1947, before, I no see him with bandage.

“Q. With a bandage, did you say? A. Before that I didn’t see him have a bandage. After that I see that he had something in his eye, and that’s all. A. And before I no see him.

‘ ‘ Q. Did you say that Peterehak told you that he got something in his eye? A. Second time I go move guide down in the hole, Peterehak no say nothing to me, just come out.

“Q. He didn’t say anything to you while you were in the hole? A. In the hole—

“Q. Now, did he say anything— A. Just hide down in the hole.

“Q. Did he say anything to you before he went to the doctor? A. Just come up out; then down in the hole, come up out; he swear, ‘ * ® I got something in the eye.’

C C ^ ^

“A. Something fell in his eye. I sent him to the hospital and he came back to work in two days with the bandage on his eye. Then he told me that his wife said there was something wrong with his eye. ’ ’

In answer to a hypothetical question propounded by plaintiff’s counsel, his physician-witness testified:

“Assuming that the story is correct of Mr. Peterchak having gotten foreign bodies into his right eye on the first occasion, and also assuming that it was necessary for him to continue treatment for as long a period as it was necessary, as he stated, obviously there was more than just a simple foreign body, which usually heals in a short period of time, that is, a superficial corneal body. So assuming then that all the foregoing statements were correct, then I can see where Mr. Peterehak, that the scars on his cornea are secondary to the injury that he received at that time.

“I don’t know if I made myself clear, in my previous statement, but in my experience with corneal foreign body, an uncomplicated foreign body that’s removed from the cornea and an antiseptic instilled, the usual course is uneventful. However, if the corneal foreign body carried germs in with it, then it leads to what is known as corneal ulcer, and corneal ulcer that is protracted and prolonged in its course usually leads to scarring of the — scarring of more or less severity, depending on the size of the ulcer and the virulence of the organism. I don’t know whether that’s clear.”

Subsequent to the treatment given plaintiff by such physician, another eye specialist of his own choosing, who did not testify for him, treated him for many months.

By brief, defendant’s counsel states:

“It is the contention of the defendant that there is no evidence of an injury to plaintiff’s right eye within the meaning of injury as defined in the Workmen’s Compensation Act, General Code Section 1465-68, or as that term has been interpreted by the Supreme Cpurt in the Malone case, 140 Ohio St., 292. It is defendant’s position that the difficulty with plaintiff’s eye was due entirely to outside infection and not to injury.”

Plaintiff’s testimony, offered by himself, of the presence at any time of a- foreign body in his right eye was that weeping of that eye was the result of the ‘ ‘ dirt that must have gotten into my eye. ’ ’

Plaintiff’s medical expert witness, Bloomberg, testified to a causal connection between the injury to plaintiff’s right eye and his employment, which was based upon a hypothetical question in which it was erroneously stated as a fact that on March 11, 1947, while in the course of his employment a particle, or particles, of dirt entered his right eye. That witness testified, “ * * * so assuming then that all of the foregoing statements were correct, then I can see where Mr. Peterchak, that the scars on his cornea are secondary to the injury that he received at that time. ’ ’ Further, that witness testified that the injury to plaintiff’s eye could have been caused by injury or by infection, and that he conld not tell whether the condition of plaintiff’s right eye resulted from injury or infection.

Further, defendant contends that the evidence submitted in the trial court is not sufficient ‘ ‘ to support a claim for injury under the Workmen’s Compensation Act,” and supports that statement by citation of the case of Gerich v. Republic Steel Corp., 153 Ohio St., 463, 92 N. E. (2d), 393, in which the judgment of this court was reversed.

Nest, defendant contends: “A mere possibility that there is causal connection between an incident and a diseased condition of the eye is not sufficient under Ohio law. There must be at least a probability. Drakulich v. Industrial Commission, 137 Ohio St., 82; Industrial Commission v. Lathrop, 52 Ohio App., 55; and Hof v. Industrial Commission, 62 Ohio App., 241.”

It is observed that neither plaintiff nor some of his fellow workmen handle the English language with ease, which makes a reading of the record rather difficult at times.

Defendant waived its right to rely on the claimed error that the trial judge erred to its prejudice in overruling its motion for a verdict to be directed in its favor when it accepted the ruling of the trial court and proceeded with its defense and introduced evidence in its own behalf. Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199.

We cannot conclude that “the court erred in overruling defendant’s motion for a directed verdict in its favor, and at the close of all of the evidence submitted in the case,” as in our opinion there is evidence warranting submission of the case to the jury. But we conclude that “the verdict of the jury is contrary to law and against the manifest weight of the evidence. ’ ’

The judgment of the Court of Common Pleas is reversed and a new trial granted, and the cause is remanded to the Common Pleas Court for further proceedings according to law.

Judgment reversed.

Nichols, P. J., and Griffith, J., concur.


author: Per Curiam.

text:
    Krieg et al., Appellants, v. City of Springfield et al., Appellees.
    (No. 488
    Decided May 31, 1952.)

      Messrs. McGrew & Laybourne, for appellants.

      Mr. Richard C. Cole, for appellees.
   Per Curiam.

This is an appeal on questions of law and fact from the Common Pleas Court of Clark County, which refused to enjoin the defendants from taking further proceedings under a bond issue passed by the voters of the city of Springfield in November 1945, which provided for the elimination of two grade crossings.

The bond issue was in the amount of $836,000, which was intended to provide the necessary proceeds to pay for the elimination of the grade crossings of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company on East Main street and on North Limestone street, in the city of Springfield. The proposal approved by the voters did not provide for a separate allocation of funds to be expended for the two separate contemplated improvements.

It is now proposed to expend $675,000, less deductions for engineering costs, the maximum amount of deductions being $88,000, for the elimination of the grade crossing on East Main street. The record shows that the balance of the fund will be inadequate to effect an elimination of the grade crossing on North Limestone street, inasmuch as the state of Ohio and the federal Government have not indicated willingness to bear any portion of the expense of the latter contemplated improvement. In the elimination of the grade crossing on East Main street, which is United States route 40, the state of Ohio, the federal Government and the railway company join in paying the cost of the improvement.

The fact that the balance of the proceeds derived from the bond issue will be insufficient to pay the costs of the contemplated improvement on North Limestone street does not affect the validity of the allocation of $675,000 as the share of the expense to be paid by the city of Springfield for the elimination of the grade crossing on East Main street.

It lies within the sound discretion of the legislative body of the city of Springfield to decide whether to proceed with one of the projects, even though there would be insufficient funds to proceed with the other project. The action of the legislative body of the city of Springfield is not subject to the control of the courts, in the absence of an abuse of discretion, fraud or collusion. State, ex rel. Van Harlingen, v. Board of Edn. of Mad River Twp., 104 Ohio St., 360, 136 N. E., 196; State, ex rel. Clarke, v. Board of Edn. of Jefferson Twp., 11 Ohio App., 146, 148. We find no abuse of discretion, and there is no charge of fraud or collusion.

The principal issue presented is one of fact. Is the proposed improvement a grade-crossing elimination project as specifically set forth in the proposal approved by the voters? The pertinent part of the ballot is as follows:

“Shall bonds be issued by the city of Springfield, Ohio, for the purpose of raising funds to pay the portion of the cost payable by the city of Springfield, Ohio, of eliminating grade crossings of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company at East Main street and on North Limestone street, in the city of Springfield, Ohio, in the sum of eight hundred and thirty sis thousand and no/100 dollars ($836,000).”

Plaintiff alleges that he is the owner of real estate on East Main street, city of Springfield, Ohio; that he is a citizen and taxpayer in such city; and that he brings this action on behalf of himself and all other taxpayers similarity situated. Plaintiff claims that prior to the election at which the bond issue was approved there was in existence in the office of Mr. Lucas, the city engineer and acting city manager, certain plans which showed that the elimination of the grade crossing on East Main street was to be effected by constructing an underpass; and that the voters generally understood that this was the character of the improvement to be made. Plaintiff alleges further that the improvement now planned does not provide for an underpass, but consists of an improvement whereby the grade crossing on East Main street will be blocked and the traffic through Springfield will be diverted from East Main street from a point approximately three squares east of the grade crossing. The new construction extends for a distance of several squares and will curve to the north and join Columbia and North streets. The new highway will cross the railway right of way approximately two squares north of the present East Main street crossing, and will be constructed as an overhead. The entire project contemplates an improvement of route 40 from the west corporation line to the east corporation line of the city of Springfield. However, the project is divided into four parts. Part three embraces that segment of the entire project which affects directly the grade elimination of East Main street. The $675,000 to be paid by the city of Springfield as its share of the cost of improvement is to be expended only on that part of the project designated as part three.

A grade elimination may be accomplished by the construction of an “underpass,” an ‘‘overhead,’’ or a “bypass.” The proposed improvement is essentially a “bypass.” The nature of the improvement was not incorporated in the proposal submitted to the voters. No definite plans were agreed upon at that time. Several interested citizens of Springfield did examine plans which had been drawn by the state highway department several years prior thereto, which were on file in the office of Mr. Lucas and showed the elimination of the grade crossing on East Main street by the construction of an underpass. The evidence indicates that several persons were led to make certain unauthorized statements to the effect that if the bond issue carried an underpass would be constructed. The evidence does not show that any person in authority definitely stated that an underpass would be constructed. Even if some person in authority had given a definite commitment to that effect, it would not be binding on the legislative body of the city of Springfield. There is case law in Ohio to the effect that even though a definite commitment has been made, nevertheless, the proper authorities may alter the plan in the exercise of a. sound discretion. See Village of Sheffield Lake v. Holley, 152 Ohio St., 374, 89 N. E. (2d), 474; State, ex rel. Van Harlingen, v. Board of Edn. of Mad River Twp., supra; Rogers v. City of Cincinnati, 10 Ohio App., 238; State, ex rel. Clarke, v. Board of Edn. of Jefferson Twp., supra.

In our opinion, the plaintiff has failed to sustain the burden by the proper degree of proof.

In all street and highway improvements of major proportions, certain property owners will suffer some inconvenience. If the elimination of the grade crossing on East Main street were to be accomplished by constructing either an underpass or an overhead, a number of the side streets intersecting East Main street would be blocked. True, traffic would continue to flow on East Main street which is a narrow street and greatly congested. These two plans have been rejected as economically unsound. The improvement as contemplated not only eliminates the grade crossing on East Main street, but also diverts the traffic on route 40 to two other through streets, which will relieve the congestion in the down town area of the city of Springfield. Traffic will continue to flow from and into the intersecting streets with East Main street as before. However, the principal issue in this case is whether the contemplated improvement falls within the terms of the proposal submitted to the voters and whether the proceeds of the bonds are to be applied to the sgme or a different purpose,

In our opinion, the preponderance of the evidence supports the contention of the defendants that no person in a position of authority stated verbally or in writing that the improvement on East Main street would be by way of an underpass; that' statements made by a certain person to that effect were unauthorized and not based on the definite acceptance of this particular plan; that at that time the proper authorities had not agreed upon a definite plan; that, the newspaper publicity did not mention the manner in which the grade crossing was to be eliminated; that the grade crossing on East Main street will be eliminated; and that the contemplated improvement does not vary sufficiently from the proposal approved by the voters to justify the relief prayed for.

In our opinion, the second defense interposed by the defendants, which is res judicata, is not supported.

Judgment will be entered for the defendants. The costs will be assessed against the plaintiff.

Judgment for defendants.

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


author: Wiseman, J.

text:
    Kirk, Appellee, v. Schumeth, Appellant.
    (No. 2180
    Decided April 10, 1952.)

      Messrs. Pickrel, Schaeffer <& Ebeling, for appellee.

      Mr. William Swaney, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County affirming a judgment of the Municipal Court of Dayton refusing to vacate and set aside a judgment on a petition filed after term.

The defendant entered into a valid contract to purchase a residence owned by Melvin and Martha Burden, who were represented by the plaintiff as agent. Not being in possession of cash the defendant executed a cognovit promissory note for $300, payable to the plaintiff, as a down payment. The contract of sale was accepted by the Burdens and on the same day the contract and the note were presented to them. On the following day the defendant notified the plaintiff, as agent for the Burdens, that she would not consúmate the contract of sale unless the Burdens agreed to include the furniture. This, the Burdens refused to do. Subsequently the property was sold to another party.

On November 20, 1950, the plaintiff took judgment on the cognovit note without notice given to the defendant. On January 25, 1951, the defendant filed a petition to vacate the judgment on the grounds that the signature of the defendant was secured by false statements and that there was no consideration for the note. The first ground was not proven and is not here urged. Defendant-appellant contends that there was no consideration for the note and that the evidence presents a case under the provisions of Section 11631, General Code, which provides for the vacation of judgments after term.

Subdivision 9 of Section 11631, General Code, provides :

“For taking judgments upon warrants of attorney for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.”

The burden of proof in this case rested upon the defendant to prove one of the grounds for vacation of judgments after term mentioned in Section 11631, General Code. In our opinion there was sufficient consideration for the execution of the note, even though made payable to the agent for the owner of the property. A consideration may be a benefit accruing to one party or a detriment suffered by another. Defendant contends that the plaintiff is not the real party in interest and that therefore judgment was taken for more than was due as provided in subdivision 9 of Section 11631, General Code.

Section 11241, General Code, provides, "an action must be prosecuted in the name of the real party in interest, ’ ’

Prior to the enactment of the Uniform Negotiable Instrument Act, the holder of a note could not sue thereon unless he was the beneficial owner. 29 Ohio Jurisprudence, 1232, 1235. This was changed by the passage of the Uniform Negotiable Instrument Act.

Section 8156, General Code, provides:

"The holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument.”

Section 8295, General Code, in part, provides:

" ‘Holder’ means the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.”

Under the Uniform Negotiable Instrument Act, it is no longer a defense to an action on a note brought by the payee and holder, that such payee and holder is not in fact the real party in interest. This proposition is supported by Wick v. Cleveland Securities Corp., 71 Ohio App., 393, 50 N. E. (2d), 351. See, also, Schottenstein v. DeVoe, 83 Ohio App., 193, 82 N. E. (2d), 552.

We find no error in the record prejudicial to the rights of the appellant.

Judgment affirmed.

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