text:
    APPEAL — CORPORATIONS—COURTS—ERROR
    [Hamilton (1st) Court of Appeals,
    March 15, 1920.]
    Shohl, Hamilton and Cushing, JJ.

      John N. Russell, Admr. v. Fourth National Bank.
    1. Trial on Appeal Restated.
    Under the system of appeals in Ohio, the case is not presented on the record as made up in the court below but there is a new trial on new evidence and pleadings which may be different.
    2. Court on Review Cannot Make Findings of Facts Controverted.
    The reviewing court is without authority in error cases to make findings of fact on issues as to which there is conflicting evidence or on questions as to which different inferences may be drawn from facts proved.
    3. Law of Case Cannot Prevent Redetermination of Facts in Same Case.
    The phrase “law of the case,” as applied to the effect of previous orders on the latter action of the court in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided. The court has power to redetermine what has been adjudged on a previous appeal or writ of error. But unless the former decision is very clearly erroneous, it will be adhered to.
    4. Application of Limitations to Claim for Back Dividends and Ownership of Stock.
    The plaintiff administrator brought an action to require the defendant bank to transfer to him certain stock and for an accounting as to unpaid dividends thereon. The action was based on an uncancelled stock certificate found among the papers of the intestate. The certificate was issued in 1865. Dividends were paid thereon for two years, and were then discontinued, although other stockholders continued to receive dividends during the entire intervening period. The bank claimed that the stock was transferred to another in 1867, but through some oversight the certificate held by the intestate was not cancelled. "With reference to the defense of the statute of limitations—

      Held: (a) As to the claim for an accounting for dividends the six years statute applies, (b) But in the absence of a preponderance of evidence that the intestate knew of the transfer of his stock to another, the statute of limitations does not terminate his ownership of the stock.
    5. Failure of Business Man to Receive Dividends without Protest or Inquiry in Later Years of Life Renders Action by Administrator Inequitable.
    The entire failure of the intestate, a man of business experience, a resident of the same city in which the bank was located, and in straightened circumstances during the later years of his life, to take any action regarding his failure to receive dividends, although it was common knowledge that other stockholders were receiving them regularly, renders it inequitable that a suit should be maintained by his administrator, long after all the parties having knowledge of the facts are dead and the records have been lost or destroyed; and the claim for equitable relief is, therefore, held to be barred by laches.
    Appeal.

      Tuttle & Boss, for plaintiff.

      William Worthington and Charles B. Willy, for defendant.

       Certified to Supreme Court on the ground of conflict with former judgment of this court when differently constituted. Prior decisions in this case: Russell v. Fourth Nat. Bank, 37 O. C. C. 17 (4 App. 378; 23 N. S. 1); 45 O. C. C. 339 (26 N. S. 529); 27 Dec. 590 (15 N. S. 184); 27 Dec. 543 (18 N. S. 585.)

   SHOHL, J.

Tbe plaintiff, John N. Bussell, administrator of the estate of J. N. Bussell, deceased, brought an action in the superior court of Cincinnati against the Fourth National Bank for equitable relief. The elder Bussell in 1865 became the owner of thirty shares of the capital stock of the defendant bank. Dividends were paid to him semi-annually in May and November during that year and the year following, and never afterwards. From that time until the summer of 1889 he resided with his family in Linwood, Hamilton county, Ohio. He then moved to Portland, Oregon, and lived there until his death, June 8, 1895. As he left no apparent estate, there was no administration. During the summer of 1911, his son, the administrator herein, in looking over some old papers, discovered a certificate for thirty shares of the stock of the Fourth National Bank. It- had never been can-celled. Later, after his appointment as administrator by the probate court of Multnonah county, Oregon, he made demand on the bank for a new certificate and for an accounting for the dividends on the stock since 1866. The bank refused to recognize any ownership of the stock in the decedent or his administrator and this action was accordingly brought in December, 1912.

The stock book of the bank containing transactions prior to 1872 has been lost since 1906, when the bank moved to a new location, but the defendant offered in evidence the stock ledger for the years 1865-1867, the dividend receipt book, and now offer in evidence a certified copy of the report filed with the comptroller of the currency of the United States, in accordance with Sec. 5210 U. S. R. S. The stock ledger is offered for the purpose of showing that Russell disposed of his shares to W. F. Colburn, January 9, 1867. The dividend receipt book was offered for the purpose of showing that Colburn received the dividends on this stock after that date.

During the period in which Russell resided at Linwood, the evidence shows that he was in reduced circumstances, and he remained poor up to the time of his death.

The judgment in favor of the defendant at the first trial was based upon the finding of the court that the plaintiff is not the owner of the shares of stock represented by tha certificate in his possession. This judgment was reversed by the court of appeals, which rendered an opinion, holding that the court erred in admitting the stock ledger in evidence. The court, however, said at the conclusion of its opinion:

“In regard to the other defenses alleged in the answer— those of laches and the barring of the action by limitation or lapse of time — we desire to say no more than that none of them seems to us to be of merit to control the conclusions otherwise reached here, and they are denied.”

A new trial was ordered. At the second trial on additional evidence as to the entries, the stock ledger was admitted in evidence and judgment was again rendered in favor of the bank. To this, error was prosecuted to this court and the case was again reversed. The court in the entry of judgment purported to make certain findings of fact in favor of the administrator. The case was remanded ‘ ‘ for such further proceedings in accordance with the above findings as is authorizéd by law. ’ ’ Application- was made to the Supreme Court to direct the court of appeals to certify its record and the application was refused.

Pursuant to the mandate of the court of appeals, the case was then heard for the third time in the superior court, where the defendant made certain admissions as to the market value of the stock and the dividends that had been declared and paid since 1867. The defendant offered proof of its case on the merits but the court rejected it and rendered a decree “that the plaintiff recover from the defendant the sum of $23,619.38” with interest and costs. The defendant then filed an appeal from this decree, and this ease is now heard in this court on appeal, as distinguished from error, for the first time.

The plaintiff here offered in evidence proof of the value of the stock and dividends, and rested, maintaining that the law of the case had been established and nothing more remained to be done but to supply what was missing from the facts already conclusively determined in this court. Later the court permitted the case to be reopened and evidence on all the foregoing was offered.

We must determine the effect of the findings contained in the former judgment entry in the error proceedings in this court. But first let us ascertain the nature of an appeal under the Ohio constitution. Appellate jurisdiction in chancery cases is granted by Art. 4, Sec. 6, of the amended constitution, and this jurisdiction cannot be enlarged or diminished by statute. Cincinnati Polyclinic v. Balch, 92 Ohio St. 415 [111 N. E. 159]; Wagner v. Armstrong, 93 Ohio St. 443 [113 N. E. 397].

There is no doubt but that the case at bar is a chancery case. An appeal under the Ohio law differs radically from the system of appeals in chancery in England, where the ease is presented on the record of the trial below. By the Act of February 16, 1810, 1 Chase, 705, 712, it was provided (Sec. 44) :

“That when any cause is removed by appeal into the Supreme Court, the appeal shall be tried on the pleadings made up in the court of common pleas, unless on good cause shown, and on payment of costs, the said court should permit either or both parties to alter their pleadings, in which case such court shall lay the parties under such equitable rules and restrictions as they may conceive necessary, to prevent delay. ’ ’

This section continued in force through the various revisions' until the constitution of 1852 was adopted, and it was then continued with the changes made necessary by the substitution of the district courts for the Supreme Court sitting in the circuit. See 2 Swan and Critchfield, 1161, 1169. When the code of practice of 1878 was passed the provision was re-enacted, 75 O. L. 648, Sec. 65:

“The district court shall have jurisdiction of certain eases, as hereinafter mentioned, by appeal, and the trial therein shall be conducted in the same manner as in the court of common pleas, and upon the same pleadings, unless amendments are permitted or ordered by the court. ’ ’

That act has been carried forward into See. 5225 R. S., and into Sec. 12223 G-. C., as amended 103 O. L., 429.

Unlike the English system of appeals, an appeal in Ohio is a new trial on pleadings which may be different, if the court so permits, and upon new evidence. This has been the Ohio practice throughout all of its legal history. See Grant v. Ludlow, 8 Ohio St. 1, 30, and Mason v. Alexander, 44 Ohio St. 318, 327 [7 N. E. 435], When the phrase “appellate jurisdiction” in the trial of chancery eases was adopted in the constitution of 1912, there was thereby adopted a phrase already construed, which is taken with its established construction.

The defendant, therefore, is entitled to a trial on the pleadings. What then, is the effect of the so called findings in the judgment entered by this court in the error proceedings the second time that the case was before it for review? The authorities already referred to establish that the powers of the Court of Appeals are derived solely from the constitutional provision. The court is authorized in error cases to review, affirm, modify or reverse judgments of the lower courts. There is no authority cited which establishes the power to make findings in an error case as to disputed questions of facts or questions from which different inferences of fact may be drawn from the matters proved. The authoritative decisions are that the court must order a new trial on such disputed questions of fact. Hickman v. Ohio State Ins. Co., 92 Ohio St. 87 [110 N. E. 547]; Minnear v. Holloway, 56 Ohio St. 148 [46 N. E. 636]; Gay v. Davey, 47 Ohio St. 396 [25 N. E. 425]; Miller v. Sullivan, 26 Ohio St. 639; Emery’s Sons v. Irving Nat’l Bank, 25 Ohio St. 360 [18 Am. Rep. 299]; Stivers v. Borden, 20 Ohio St. 232.

We are of opinion, therefore, that the court was without authority to make the findings contained in the judgment of reversal hereinbefore rendered. The right of this court to reconsider and review its own decision in this case is challenged by the plaintiff, and the so called doctrine of “the law of the case” has been urged. It is stated that a prior decision is conclusive upon a subsequent appeal of a case in the same court even if it is erroneous, and that propositions of law once decided by an appellate court are not open for reconsideration in that court upon a subsequent appeal. This subject is treated by note in 1 A. L. R. 1267. The court is of opinion that the better rule is that laid down by the Supreme Court of the United States in Messenger v. Anderson, 225 U. S. 436 [56 L. Ed. 1152], wherein the court say:

“In the absence of statute the phrase, law of the case, as applied to the effect of previous order on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” King v. West Virginia, 216 U. S. 92, 100 [54 L. Ed. 396]; Remington v. Central Pac. Ry., 198 U. S. 95, 99, 100 [49 L. Ed. 959]; Great Western Telegraph Co. v. Burnham, 162 U. S. 339, 343 [40 L. Ed. 991],

It is not conducive to the orderly administration of justice that questions of law once decided should be reopened upon a reconsideration of the case in the same court, and regardless of the fact that the personnel of the court may have changed, the former decision will be adhered to, unless it is very clearly erron eous, as stated in Platt v. Pennsylvania Co., 47 Ohio St. 366, 379 [25 N. E. 1028]. The reviewing court, however, has the power to redetermine matters adjudged on a previous appeal or writ of error, and may reopen what has been decided.

We are impelled to the conclusion that the making of the findings in question was improper and not within the jurisdiction of the court. Though a court may possess jurisdiction of a cause, of the subject matter, and of the parties it is still limited in its modes of procedure, and in the extent and character of its judgments, and if it- renders a judgment which is not within the powers granted to it by the law of its organization, the judgment is void. See Standard Oil Co. v. Missouri, 224 U. S. 270, 281, 282 [56 L. Ed. 760], Works, Courts, 2nd Ed. Sec. 8; Windsor v. McVeigh, 93 U. S. 274, 282 [23 L. Ed. 914], The order to the superior court for “such further proceedings in accordance with the above findings as is authorized by law, ’ ’ could mean no more than a simple reversal with instructions to grant a new trial according to law. Hovey v. Elliott, 145 N. Y. 126 [39 N. E. 841; 39 L. R. A. 449], affirmed. Hovey v. Elliott, 167 U. S. 409 [17 S. Ct. 841; 42 L. Ed. 215].

In view of our determination that this court has the right to re-examine and reconsider questions already determined herein, we have taken up those matters that have already been discussed in the opinions of this court with great care.

This court has twice held that the ledger offered for the purpose of showing the transfer to Colburn was inadmissible. We are of opinion that this ruling is not so clearly erroneous that it should not be followed at this hearing.

The defendant has set up the defense of the statute of limitations. We will consider its effect separately as to dividends and as to the stock itself. When a corporation properly declares a dividend, it becomes an ordinary debt due stockholders by the company. 2 Machen, Corporations, Sec. 1357; 2 Cook, Corporations, 7th Ed. Sec. 542. It is ordinarily stated that such dividend becomes payable on demand, and until demand and refusal, the dividend is not due the stockholder. In Larwill v. Burke, 10 Circ. Dec. 605 (19 R. 513), it was held on this principle that until the demand was made, the statute of limitations did not begin to run.

In the ease at bar, however, there was a dividend declared, but not to Russell on his stock as he was not a stockholder of record. This fact is shown even without the books of the corporation by the statement which is filed with the Comptroller of the Currency. Indeed the admissibility of this evidence is not a vital question in view of the statement made in open court by counsel for plaintiff that the bank did not treat Russell as a stockholder after 1867. In their brief counsel state “and it is -not disputed by the plaintiff that ever since 1867 the Bank has considered Russell not the owner of the stock.” And again: “There is no question in anyone’s mind that the bank did not consider Russell the owner of the stock. ’ ’ That Russell was not treated as a stockholder is the foundation of plaintiff’s claim for an accounting. If the plaintiff was entitled to dividends, the corporation violated his rights when the dividend was declared by failing to declare a dividend in his favor. A declaration of dividends to stockholders of record does not create the right to bring an action in assumpsit, except by those who are such stockholders. After the declaration of dividends in 1867 and thereafter, there was no money standing to the credit of J. N. Russell and payable on demand. If there was a wrong done to him, it was done each time a distribution of dividends was made without allotting any to him. He had a right of action at that time, and, except as to such dividends arising within six years of the bringing of the action, the statute of limitations is applicable.

In the case of Stearns v. Hibben Dry Goods Co. 31 O. C. C. 257 (11 N. S. 553), the court held that the statute of limitations barred a right of action by a stockholder six years after a dividend was distributed, though he had failed to make demand at that-time. His failure to do so did not suspend the operation of the statute of limitations. The decision was affirmed no op. bjr the Supreme Court in Stearns v. Hibben Dry Goods Co., 84 Ohio St. 470. And see Clark & Marshall, Corporations, Section 527; Re Severn & Wye Ry., L. R. 1 Ch. Div., 559.

As to dividends more than six years prior to the bringing of this suit the plaintiff is barred by the statute of limitations.

Let us now take up the defense of limitations upon plaintiff’s right to the stock as distinguished from the-dividends. The relation of a stockholder to his corporation sounds in contract, and Ms rigM is in the nature of a chose in action. 1 Morawetz, Corporations, 2nd Ed., Secs. 43-45, Sec. 225; 1 Machen, Corporations, Sec. 832; Hawley v. Malden, 232 U. S. 1, 12 [58 L. Ed. 477]; Colonial Bank v. Whinney, L. R., 11, App. Cas., 426, 440, 447, 448.

His contractnral right cannot be rescinded without his consent, either express or implied, hence the mere execution of a transfer of his stock on the books, unknown to him, would merely destroy the evidence of the relation, but would not divest him of his rights. It does not constitute a conversion of his stock. 1 Morawetz, Corporations, 2nd Ed. 208; 1 Machen, Corporations, Sec. 854; Western Union Tel. Co. v. Davenport, 97 U. S. [24 L. Ed. 1047] 369; Pratt v. Taunton Copper Mfg. Co., 123 Mass., 110 [25 Am. Rep. 37], See Note 45 L. R. A. N. S., 1076.

However, when a corporation wrongfully transfers the stock, and the owner knows of its actions, it amounts to a repudiation of the obligation which the corporation owes to him. An express repudiation of such an obligation gives rise to a right of action immediately and starts the running of the statute of limitations against an obligee under no disability to whom such a repudiation is brought home. This is the inferential holding of Cleveland & M. Ry. v. Robbins, 35 Ohio St. 483, 502, where the owner of shares did not know of the transfer. While such knowledge need not be proved by direct testimony but may be shown by the circumstances, we are of opinion in view of all the evidence that actual knowledge on the part of Russell has not been established. While from the facts shown, there are some inferences tending to show that Russell did in fact know of the transfer of his stock, we find no preponderance of evidence to that effect. As to the stock itself, as distinguished from the dividends, the defense based on the statute of limitations must fail.

We shall now consider the question of laches. The court is of opinion that under the unexplained facts shown at the hearing here, the plaintiff is barred by laches and is not entitled to equitable relief against the defendant. During the twenty-eight years from 1867 to 1895, the plaintiff’s intestate, though in want, made no effort to assert any rights against the bank. For the first twenty-two years of this period, he lived in Cincinnati. A further period of sixteen years elapsed after his death in 1895 before suit was brought. Laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time.and other circumstances, causes prejudice to the adverse party and therefore operates as a bar in a court of equity. Kemper v. Apollo Bldg. & L. Assn., 30 O. C. C. 700 (11 N. S. 372). It is founded upon the evanescent character of all testimony and the consequent difficulty of making a defense to any claim after the lapse of a number of years. See Douglas v. Corry, 46 Ohio St. 349 [21 N. E. 440; 15 Am. St. 604] ; Harris v. Wallace Mfg. Co. 84 Ohio St. 104, 108 [95 N. E. 559],

Luring the period which elapsed all those who were officers of the bank at the time the transfer of the stock was made have died. Russell’s delay until his own death deprives the bank of such evidence as he might have been required to give. Important books and records have been lost. These circumstances render peculiarly applicable the doctrine of laches. See Hanner v. Moulton, 138 U. S., 486, 495 [34 L. Ed. 1032]. In Hammond v. Hopkins, 143 U. S. 224, 250 [36 L. Ed. 134], the court says:

“No rule of law is better settled than that a court of equity will not aid a party whose application is destitute of conscience, good faith and reasonable diligence, but will discourage stale demands, for the peace of society, by refusing to interfere where there have been gross laches in prosecuting rights, or where long acquiescence in the assertion of adverse rights has occurred. The rule is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transactions complained of, or of'the witness or witnesses, or by reason of the original transactions having become so obseeured by time as to render the ascertainment of the exact facts impossible. Each case must necessarily be governed by its own circumstances, since, though the lapse of a few years may be sufficient to defeat the action in one ease, a longer period may be held requisite in another dependent upon the situation of the parties, the extent of this knowledge or means of information, great changes in values, the want of probable grounds for the imputation of intentional fraud, the destruction of specific testimony, the absence of any reasonable impediment or hindrance to the assertion of the alleged rights, and the like.” Marsh v. Whitmore, 88 U. S. (21 Wall.) 178 [22 L. Ed. 482] ; Lansdale v. Smith, 106 U. S. 391 [27 L. Ed. 219] ; Norris v. Haggin, 136 U. S. 386 [34 L. Ed. 424]; Hanner v. Moulton, 138 U. S. 486 [34 L. Ed. 1032],

Plaintiff urges that the intestate is not shown to have had knowledge of his rights, and, therefore, is not chargeable with neglect in failing to prosecute them. In the case of Foster v. Mansfield c. & L. M. Ry., 146 U. S. 88, 99 [36 L. Ed. 899], the court says:

“Thé defence of want of knowledge on the part of one charged with laches is one easily made, easy to prove by his own oath, and hard to disprove; and hence the tendency of courts in recent years has been to hold the plaintiff to a rigid compliance with the law which demands, not only that he should have been ignorant of the fraud, but that he should have used reasonable-diligence to have informed himself of all the facts. Especially is this the case where the party complaining is a resident of the neighborhood in which the fraud is alleged to have taken place. ’ ’

See also Weininger v. Success Mining Co., 227 Fed., 548, 557, 558; Naylor v. Foreman Blades Lumber Co., 230 Fed. 658, 673.

There is no doubt that the elder Russell once knew that he was the owner of Fourth National Bank stock. He was a business man of experience. He resided in the neighborhood. The bank was obviously an active, going concern. He received substantial semi-annual dividends at regular intervals for two years, and then ceased to get them. The law at that time required the publication four times a year in a newspaper where the bank was established, of a report showing in detail the assets and liabilities of the company. (13 Stat. 109, 110). He must have known that the Bank held stockholders’ meetings in January, as required by statute, and by attending them he could have been informed as to its condition and why he got no further dividends.

We have considered the question of Russell’s actual knowledge of the facts, and it is referred to in dealing with the question of the statute of limitations.

For the purpose of the defense of laches, it is enough to say that unless he used reasonable diligence to have himself informed of the facts, mere ignorance will not excuse him. And a fortiori must this be true where his silence and failure to assert his rights continue for forty-five years until those persons who would naturally be able to explain and defend the conduct of the bank have passed away and after the records have been lost. Under ordinary circumstances a suit in equity will not be stayed for laches before and will be stayed after the time fixed by the analogous statute of limitation at law. When a suit is brought after such statutory time has elapsed, the burden is on the plaintiff to show that it would be inequitable to apply the doctrine of laches in this case. Kelley v. Boettcher, 85 Fed., 55; Davey v. Dodge, 213 Fed., 722, 727. Neither the pleadings nor the proofs show facts which justify so great a delay. See Pomeroy, Eq. Jurisprudence, 4 Ed. page 3445 note; Shaw v. Goebel Brewing Co., 202 Fed. 408 [45 L. R. A. (N. S.) 1090] and note to same. The plaintiff’s claim for equitable relief is barred by laches.

A decree may be drawn in accordance with the foregoing.

Hamilton J. and Cushing, J., concur.


source: Caselaw Access Project

author: METCALFE, J.

license: Public Domain

text:
    CRIMINAL LAW — INTOXICATING LIQUORS
    [Jefferson (7th) Court of Appeals,
    May 27, 1920.]
    Metcalfe, Parr and Pollock, JJ.

      Abe Hoffrichter v. State of Ohio.
    1. Improper Statements by Magistrate, not in Trial not Prejudicial to Accused Convicted on Evidence.
    Improper statements made by a mayor, not in trial, however, regarding the course he would pursue with persons brought before him charged with certain offenses will not be regarded as prejudicial in a case when on the undisputed evidence it was the duty of the mayor to convict.
    2. Accused Prosecuted for Keeping Place for Unlawful Sale of Intoxicating Liquors not Entitled to Jury Trial.
    In a prosecution under Sec. 13195, the defendant is not entitled to a trial by jury. Imoood v. State, 42 Ohio St. 186, followed.
    3. Keeping Place for Unlawful Sale of Intoxicating Liquors after Constitution Declaration of May 29, 1919, Punishable.
    Article 15, Sec. 9, Constitution of Ohio in effect May 26, 1919, forbids the sale of intoxicating liquors as a beverage. The sale of such liquors after that date was in violation of law, without regard to the fact whether the general assembly had enacted legislation to enforce such provisions with penalties or not. It is not the penalty which makes the sale unlawful, but the fact that it is prohibited. Hence, keeping a place where intoxicating liquors were sold as a beverage after May 29, 1919, is punishable under the provisions of Sec. 13195 G. C.

      Jay Paisley, for plaintiff in error.

      Boy B. Carpenter and E. B. McMaster, for defendant in
    error.

       Affirmed by the Supreme Court, February 15, 1921.

   METCALFE, J.

The plaintiff in error was arrested upon a complaint made before the mayor of New Alexandria, charging him with keeping a place where intoxicating liquors were unlawfully sold in violation of law, and upon trial before the mayor was convicted.

The plaintiff urges the following errors. First, that the mayor was so prejudiced he could not give the plaintiff a fair trial. Second, that the mayor had no jurisdiction. Third, that the plaintiff had the right of a trial by jury, and fourth, that there was no law in force making the sale of liquors unlawful within the state of Ohio at the time the alleged offense was committed, and consequently there could be no prosecution for keeping a place where liquors are sold contrary to law.

As to the first proposition, an affidavit was filed by the plaintiff in which, after stating the circumstances of his arrest, he avers that the mayor had stated in court at some time, not at the time he was upon trial, that persons who were brought before him and who pleaded “Guilty” would be fined $300, and that those who stood trial would be fined $500; thus, giving notice to those who were brought before him charged with a crime they would be convicted in any event, and if they stood trial that they would receive a much more severe punishment than if they pleaded “Guilty.” Of course, this statement, if made, was exceedingly improper, and if there was anything in the record to show that that attitude of the mayor was carried into this case, it would reverse the case undoubtedly, but we do not find that it worked to the prejudice of the plaintiff, for upon the undisputed evidence in the case it was the duty of the mayor to convict him.

As to the question of the jurisdiction of the mayor to try this case without the intervention of a jury Sec. 4536 gives to the mayor authority co-extensive with the county, to try cases of misdemeanor where the penalty is by fine only.

In the case of Inwood v. State, 42 Ohio St. 186, the Supreme Court held in cases of prosecutions for misdemeanors where the punishment was by fine only that the defendant did not have a constitutional right to a trial by jury.

In Cincinnati v. Steinkamp, 54 Ohio St. 284, 290 [43 N. E. 490], the case is cited with approval and in Kinsel, In re, 64 Kans. 5 [67 Pac. 634; 56 L. R. A. 475], the case is discussed and followed.

The same question was before the Kansas court as in the In-wood case. The Inwood case is expressly followed in State v. Smith, 69 Ohio St. 196 [68 N. E. 1044], and is cited as determining that question authoratively in State v. Borhmn, 72 Ohio St. 358 [74 N. E. 220]. So, we think'that question is not an open question now.

The only remaining question in this case as to whether there was a law in force which made the sale of intoxicating liquors at the time the acts charged in this affidavit were committed, unlawful.

Section 13195 provides:

“Whoever keeps a place where intoxicating liquors are sold, furnished or given away in violation of- law, shall be fined, etc. ’ ’

This act is charged to have taken place on October 9, 1919, subsequent to May 26, 1919, when the prohibition amendment to our constitution went into effect. It is insisted that by virtue of that amendment the existing laws relating to the sale of intoxicating liquors were repealed.

Article 15, Sec. 9, prohibits the manufacture and sale of intoxicating liquors and reads as follows:

“The sale and manufacture for sale of intoxicating liquors as a beverage are hereby prohibited. The general assembly shall enact laws to make this provision effective. Nothing herein contained shall prevent the manufacture or sale of such liquors for medicinal, industrial, scientific, sacramental, or other non-beverage purposes. ’ ’

At the time that the acts charged in this affidavit were committed, it is said that there was no law in effect providing penalties for the sale of intoxicating liquor. No law has been passed that was effective, at least, to carry into effect the provisions of the prohibition amendment, and probably most of the legislation relating to the sale of intoxicating liquors which was upon the statute books, was repealed or at least became inoperative when the prohibition section went into effect.

But, would the constitutional amendment repeal a law which was not in any way obnoxious to any of its provisions? That section was in effect before the constitutional amendment was passed. But the amendment does not expressly or by implication repeal it. If it repealed any laws at all, it would be only such as were obnoxious to its provisions or such laws as it was designed to do away with like the various local option laws, but, would it repeal a law which imposed a penalty for keeping a place where intoxicating liquors were unlawfully sold? We think not.

It is insisted that the laws passed by the general assembly at that time imposing penalties for sales of intoxicating liquors, were not in force, there could be no ruilawful sale, and consequently the keeping of a place worrld not be unlawful; but does it follow that the sale of intoxicating liquors as a beverage was not unlawful because no penalty was attached to the act of selling it ?

The sale is expressly prohibited by the constitution itself; therefore, it is unlawful. It is true that no penalty attaches to the sale of intoxicating liquors until the legislature has enacted laws which impose a penalty, but that makes no difference with the fact itself that the sale of intoxicating liquors was unlawful. It was unlawful because it was prohibited by the Constitution.

It is not the penalty itself that makes the sale unlawful, but it is unlawful because it is prohibited. The sale itself being unlawful, it follows that keeping a place where intoxicating liquors are sold as a beverage is keeping a place in violation of law, to-wit, in violation of the constitutional provision forbidding it.

Therefore, we think there is no prejudical error in the record in this ease and the judgment is affirmed.

Farr and Pollock, JJ., concur.


author: DUNLAP, J.

text:
    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Court of Appeals,
    February, 1920.]
    Dunlap, Washburn and Vickery, JJ.

      Sebastiano Russo, Admr. v. Cleveland (City).
    Instructions Ignoring Negligence force of Municipal Garbage Collector Violating Ordinances as Proximate Cause, Erroneous.
    The driver of a city garbage wagon, while passing through an alley from west to east contrary to an existing ordinance, left his horse unhitched and unattended, which was also in violation of an ordinance in full force and effect, and while he was engaged in gathering up garbage the horse started and the wagon crushed decedent against a wall. Held:

    It was for the jury to determine, under proper instructions, whether the admitted double violation of city ordinances was the proximate cause of the accident, and if so whether the decedent was guilty of contributory negligence of a kind that would prevent recovery; and a charge to the jury which ignored the fact that the conduct of the city was negligence per se, and left it to the jury to weigh the negligence of both parties, was prejudicial error and requires a reversal of the judgment.

      Gilbert Morgan, and B. B. Nicola, for plaintiff in error.

      James Cassidy, for defendant in error.

       Prior decision, see Russo v. Cleveland, 39 O. C. C. 445.

   DUNLAP, J.

In the common pleas court the plaintiff, as administrator sued the defendant, the city of Cleveland, for damages for wrongfully causing the death of plaintiff’s decedent, Rosario Galati, caused as was claimed by the negligent act of the city of Cleveland, as set out in the petition.

The evidence tended to show that plaintiff’s decedent was injured while pushing a cart in an easterly direction on an alley called Parlonan Court, in which alley the driveway, or paved portion upon which vehicles could pass, was only about eight feet wide, there being a sidewalk on each side of the same approximately two feet wide, slightly elevated above the roadway. As he was proceeding in this easterly direction a garbage wagon driven by an agent and servant of the city of Cleveland had just previously been driven up to a certain point in this alley and left standing there, the same having been driven from the west. The immediate cause of the accident was a movement of the horse drawing the wagon by which the cart was carried or moved in the direction the reverse from that in which it had come, and the plaintiff’s decedent was crushed by the handle of the cart against a house bordering on said alley.

There is some dispute in the testimony as to whether plaintiff’s decedent had pushed his cart so far that it had come in contact with some part of the wagon and had thus perhaps startled the horse and caused it to move forward, or whether he had stopped at some short distance from the wagon and from contact therewith, and was waiting for the driver of the wagon to return.

There is no dispute in the testimony, however, but that the horse attached to this garbage wagon was headed in a westerly direction, and that it had been driven in a westerly direction, which was contrary to a general ordinance of the city of Cleveland requiring vehicles using alleyways of that width to drive only east thereon; and there was no dispute in the testimony, in fact it was conceded by the driver of the garbage wagon that the horse was left unattended and unhitched, without anybody to take care of it while the driver went into a yard close by for the purpose of collecting garbage.

Ordinances of the city of Cleveland, admitted by the defendant to be existing and valid ordinances, were admitted, which are as follows:

Sec. 1267. “No person shall leave any horse or horses, whether attached or unattached, to any carriage, wagon, cab or other vehicle, standing on any street, lane, alley or public ground, unless said horse or horses be securely hitched or fastened, or unless the reins be in the hands of some person in charge of said horse or horses, or within his immediate reach, and it shall be unlawful to hitch or fasten any horse or other animal to any tree or shrub in any street, alley, public ground or public place in the city of Cleveland.”
See. 1341. “The owner, operator, driver or person in charge of any cart, dray, wagon, etc., or other vehicle used, propelled or driven upon the streets of the city of Cleveland shall conform to and observe the following rules of the road upon all such streets, alleys, avenues and places in said city.
1. Vehicles shall be driven in a careful manner and with due regard for the safety and convenience of pedestrians and all other vehicles.
2. Vehicles shall keep to the right side of the street except when necessary to turn to the left in crossing or overtaking another vehicle.
3. Vehicles shall pass each other on the right.”
Sec. 1343-H. {Direction of traffic in alleys.) “In all alleys where the driveway is less than twelve feet wide all vehicles must enter or pass over the same as follows: In those alleys running-north and south the direction of the traffic shall be from north to south, and in those alleys running east and west the direction of the traffic shall be from east to west.”

The violation, therefore, of at least two of the city’s ordinances by one of its employes driving this garbage wagon is undisputed, and must be regarded as a settled and determined fact in the case.

The question of whether or not the plaintiff was guilty of contributory negligence, which proximately caused or contributed to cause his injury, was a proper question for solution by the jury as was also the question of whether or not the undisputed negligence of the city was the proximate cause of the death of plaintiff’s decedent. The jury found in favor of the defendant, upon which finding judgment was entered, and this petition is filed seeking a reversal of this judgment.

It is claimed by the city that the death of plaintiff’s decedent was not due to the accident, and that sufficient evidence is offered upon this question of fact to warrant the verdict of the jury upon this theory alone. We unanimously and emphatically agree that this judgment can not be affirmed upon this theory. The evidence to our minds clearly shows that the death of plaintiff’s decedent was due to the accident, and we have no hesitation in saying that such a finding on the part of the jury, if made, was manifestly against the weight of the evidence.

If this judgment is to be affirmed, it must be upon the theory that the jury was justified in finding that plaintiff was guilty of contributory negligence. Upon this point we recognize the fact that minds may differ. That question was a proper one for submission to the jury under a charge correctly stating the law, and we cannot say that in this respect the finding of the jury was manifestly against the weight of the evidence. Nevertheless we are of the opinion that the question of contributory negligence of the plaintiff was submitted to the jury under a charge that was misleading and erroneous and sufficiently prejudicial to warrant a reversal of this judgment. As we have before stated, the violation of the two ordinances by the defendant through its driver .was undisputed and conceded, and by all the rules of evidence it became an admitted and determined fact in the case. It is not for the jury to determine in such a situation whether or not the conduct of the city through its driver is negligence. The law makes such conduct negligence per se, and makes it unnecessary for the jury to further find upon the question of the city’s negligence.

A proper charge under the situation revealed by this case would in effect instruct the jury that the violation of said ordinances being admitted, the negligence of the city in this case is a conceded fact, and “so far as you are concerned you are to regard such negligence as proven. It is only for you to determine whether or not such negligence was the proximate cause of the injuries to plaintiff’s decedent which caused his death, and the further question of whether or not plaintiff’s decedent was guilty of contributory negligence.”

It seems to us that these two questions are the only questions in this case to be determined by the jury upon the question of liability. The court, however, charged:

“Now it is for you to decide in the light of this testimony whether or not the city was guilty of negligence. If it was, whether or not the plaintiff’s decedent was also guilty of negligence or not.”

This left it for the jury to conclude that the violation of an ordinance is to be excused, overlooked and condoned at its pleasure. It puts the jury upon a higher plane than the city council. It makes more or less of a farce out of the solemn passage of an ordinance and holds it to be a mere scrap of paper which may be regarded or disregarded at the whim or caprice of the minds of the men on a jury. The prejudice to plaintiff’s rights here is most apparent, for it is easily coneeiveable that the jury reasoned that the mere leaving of a well-trained horse, such as the evidence showed this horse to be, unhitched upon the public street was not an act of negligence; that the happening of any serious result from such a natural course of conduct could hardly be antieipated; and inasmuch as the jury was given untrammeled license to so treat this act either as negligence or not as it deemed fit, it becomes quite natural to suppose that its verdict was reached rather from such considerations than from a consideration of the subject of the contributory negligence of plaintiff’s decedent or the subject of proximate cause.

There are vices, we think also, in the hypothetical questions submitted to the expert witnesses for the city. Thus in the hypothetical question there is included the statement “he was dismissed from the hospital as cured and able to perform all necessary duties.” The testimony of the only witness for the defendant who testified as to decedent’s condition on leaving the hospital is best summed up in the words of this witness as found on page 165 of the record where the statement is made:

1 ‘ He was considered in a condition fit to be discharged from the hospital. He got up himself out of bed, went to the toilet, and he was able to perform all the things that a man convalescing needs to perform without assistance.”

We do not want to be captious and do not reverse this cause because of the faulty hypothesis, realizing the discretionary power of the trial court, but our own opinion is that the hypothetical questions do not hew as closely to the line of fact as is at least desirable in a proper administration of justice. We reverse this case, however, for error in the charge of the court as indicated in this opinion.

Judgment reversed and remanded.

Washburn, J., concurs.

Vickery, J., dissenting.

Concurring in the view that the death of plaintiff’s decedent was due to the accident, and concurring in the view that insofar as this judgment should be reversed as being against the weight of the evidence if the verdict of the jury was founded upon that theory; but does not concur in the view that the violation of the ordinance upon the part of the employe of the city was negligence per se, and for that reason dissents from the judgment.


author: SHIELDS, J.

text:
    GUARDIAN AND WARD-WILLS
    [Knox (5th) Court of Appeals,
    January, 1920.]
    Shields, Houck and Patterson, JJ.

      Mary B. Swetland et al v. Harriet T. Miles.
    1. Ward of Co-executor of Grandmother’s Estate not Estopped to Contest Will.
    A granddaughter, upon attaining her majority, is not estopped from contesting the will of her grandmother by the fact that while she was a child of tender years the executors, one of whom was her guardian, distributed the available assets of the estate without filing an inventory or obtaining an order of distribution or filing any report thereof.
    2. Testimony of One Who Talked with Testatrix about Her Will not Admissible.
    It is not error in a will contest to exclude the testimony of one who was called in by the testatrix to advise her as to whether the will as drawn properly expressed her wishes as to the distribution of her estate.

      C. H. Workman for plaintiffs in error.

      L. C. Stillwell and B. L. Carr, for defendant in error.

       Affirmed by Supreme Court, January 18, 1921.

   SHIELDS, J.

Suit was brought in the court of common pleas of said Knox county by Harriet T. Miles against Mary B. Swetland et al, to' contest the validity of the last will and testament of Phoebe Thompson, deceased. The petition was in the short form authorized by Sec. 12082 G. C. An order was duly entered on the journal of said court as provided, and upon the issue being submitted to a jury whether the writing produced was or was not the last will and testament of the said Phoebe Thompson, deceased, the verdict of the jury was that the same was not her last will and testament. Upon a motion for a new trial being overruled, judgment was entered upon said verdict and a petition in error was filed in this court seeking a reversal of said judgment.

The principal errors alleged are (1) that the court below erred in holding that the plaintiff below is not equitably estopped to maintain said action; (2) that said court erred in excluding the testimony of the witness, Calvin Trott, offered in behalf of the defendants below; (3) that said court erred in giving in its charge to the jury a certain proposition of law submitted in Bequest No. 3, hereinafter referred to; (4) that the verdict of the jury is against the weight of the evidence.

Copying the statement of counsel for plaintiffs in error as contained in their brief covering a chronological history of the ease in respect to the execution of said will and the relation of the several plaintiffs in error and defendant in error hereto to each other and their relation as beneficiaries under said will, including the initial and partial distribution of said estate by the executors thereof, we have the following:

“Phoebe Thompson died June 7, 1907. The paper writing purporting to be her last will and testament was executed November 28, 1904, and probated December 31, 1907. She was survived by one daughter and three granddaughters, her husband, Dr. Thompson, having died some twenty years before her death. The surviving daughter, Mary T. Swetland, died in July, 1912. She was survived by two of the granddaughters of the said Phoebe Thompson, two of the defendants below— Anna E. Swetland Gotchall and Harriet T. Swetland. The other granddaughter, Harriet T. Miles, the defendant in error, is the daughter of Mrs. Charles E. Miles who died about the time of the date of the birth of the said Harriet T. Miles, October 29, 1896. At the time of her death the said Phoebe Thompson had two sons-in-law, Charles E. Miles, the fáther of the said Harriet T. Miles, and H. C. Swetland, the father of two of the plaintiffs in error, Anna E. Swetland Gotchall and Harriet T. Swetland.
“By the provisions of said will each of these two sons-in-law was bequeathed the sum of $1,000, and the surviving daughter. Mary T. Swetland, was bequeathed all the shares of the capital stock of the said Phoebe Thompson in the First National Bank of Mt. Yernon, Ohio.
“That Charles E. Miles was the duly appointed, qualified, and acting guardian of the defendant in error, Harriet T. Miles, having been appointed as such guardian by the Probate Court of Franklin County, Ohio, December 20, 1897.
“Upon the probate of said will the said Charles E. Miles father of the defendant in error and her guardian was, with the said H. C. Swetland, appointed and qualified as executors under said will, December 31,1907. On February 17, 1908, said executors prepared an inventory of the estate of the said Phoebe Thompson, deceased, showing her personal estate to be $32,572.07.
‘ ‘ That on or about January 20,1908, said executors with the said Mary T. Swetland, who was named in said will as trustee of the residuary estate bequeathed to her said three granddaughters, met at the Thompson homestead and there and then some arrangement, understanding, agreement — some family arrangement, understanding or agreement was reached and concluded whereby there was a distribution of the assets of the estate of the said Phoebe Thompson, deceased, in the amount of $15,000. The said Charles E. Miles, father and guardian aforesaid, took $5,000 of the assets of this estate, and Swetland and his wife, or both, for their two children, took $10,000 worth of the assets of the estate.
“At the same time or shortly thereafter, Charles E. Miles took or received his legacy out of the assets of said estate the sum of $1,000, likewise said Swetland took his legacy of $1,000; at the same time, likewise, Mary T. Swetland took'the forty (40) shares of stock in the First National Bank of Mt. Vernon, Ohio, appraised at $5,400, her legacy under the will. The $15,000 distributed and divided by this agreement was not inventoried.

The foregoing statement embraces the facts upon which counsel for the plaintiffs in error claim the court below erred in holding that the same do not constitute an equitable estoppel against the plaintiff below and bar her from prosecuting this action. Although a child of tender years, a minor, at the death of her grandmother in June, 1907, which is conceded and although recognizing the saving clause in Sec. 10531 G-. C., which gives to minors the right to contest a will within two years after attaining their majority, counsel for plaintiffs in error contend that the defendant in error by and through the action of Charles E. Miles as her guardian, under the distribution made of said $15,000, of the assets of said estate, as appears in the foregoing statement of counsel for plaintiffs in error, works an equitable estoppel against the said defendant in error as the ward of said guardian from contesting said will.

In their brief counsel for plaintiffs in error in commenting upon this branch of the case quote from the case of Van Duyne v. Van Duyne, 14 N. J., Eq., 49, wherein the Chancellor announcing the opinion in that case says:

“The rule in equity is well settled. A man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well grounded, which shall defeat or in any way prevent the full effect and operation of every part of the will. ’ ’

An examination of this case shows that a bill was filed to enforce a certain provision made in favor of the widow of the testator against certain real éstate devised by him to his son, wherein the support of the widow was made a charge upon said real estate and the same was made subject to the support of the wife of the testator during her widowhood. By answer the son set up that he did not take said real estate by gift, but that he was a purchaser thereof for a valuable consideration, averring that he had rendered certain services to his father, the testator, after attaining his majority without receiving compensation therefor, and that the services so rendered were an equitable set-off against the value of said 'real estate so devised, and that therefore said real estate was not equitably chargeable with the support of said widow beyond the value of her dower therein. It is scarcely necessary to add that the defense here set up was held to constitute no defense to said bill. This is not new, but well settled doctrine, and it is quite apparent that the ease cited is not applicable to or determinative of the question at issue here.

Counsel also cite in support of their contention the case of Hamblett v. Hamblett, 6 N. H. 333, decided in 1833, in which the first paragraph of the syllabus of the court in said case reads as follows:

“A party who has received a legacy under a will, can not be permitted to contest the validity of such will, without repaying the amount of the legacy, or bringing the money into court. And the rule applies even if the party was a minor when the legacy was received. ’ ’

Upon its face, the case cited would seem to have some application to the case at bar. Although an old ease running back as it does seventy-five years and more when decided, but as was well said by another, “the principles of the law when laid in reason never lose their force through the lapse of time. ’ ’ Let us examine the facts upon which this opinion rests. It appears that the action was based upon the will of David Hamblett executed December 30, 1816. An appeal was taken from the decree of the judge of probate in admitting said will to probate, to which an exception was taken on the ground that the testator did not have sufficient testamentary capacity at the time of its execution to make a will. It also appears that the appellant a short time before she became of age received the legacy given her upon said testator’s will. Numerous questions arose upon the record, among them, the question as to whether the appellant should not have brought her legacy into court that she received under said will before proceeding to contest said will, and the court held that she should adding that “such affirmance, however, is not an absolute bar against the party seeking to contest the will though under circumstances of delay connected with other circumstances, it has been held to preclude the party from contesting the will afterward.” As treating of the injustice of permitting one who has accepted and received a legacy under a will to hold it pending the outcome of a contest of such will, the judge announcing the opinion in said case says:

“True, the appellant when she received this legacy was a minor. But she was then, although not of legal age, of an age to exercise some discretion. She was then more than eighteen years of age, at which period her legacy was payable to her by the will. She was aided by her friends and connections and one of them actually agreed to be bound that she should execute a release when she became of age. The legacy was fairly paid, and for aught which appears, the avails are still in her possession. ’ ’

The main question raised in the case cited was on the motion for a rule requiring the appellant to bring into court the legacy received by her under the will before proceeding to contest its validity. What the statutory provisions of the state of New Hampshire relating to minors were at that time do not appear; nor does it appear that there was any statute in that state at that time containing any saving clause in favor of the disability of infants in the matter of contesting a will; nor does it appear that the appellant was under guardianship and under bond, but it does appear that said appellant was then more than eighteen years of age, “of an age to exercise some discretion” when her legacy was payable to her by the terms of said will, and when she was then legally entitled to be paid her said legacy. It was paid to her, accepted and receipted for by her, and she held it, and then attacked said will for the alleged reason of “the undutiful conduct of the appellee towards her mother in requiring her to render an account of her administration in the probate office, and in other matters specified. ’ ’ Can it be said that the ease cited is decisive of the case at bar ? Will it be claimed that the facts in the case cited run parallel to the facts in the case at bar? Here the defendant in error at the time her guardian received $5,000 of the division made of the $15,000 at the Thompson homestead was a mere child, incapable in law of acting for herself in any matters affecting her interests, whose keeping and care were in the custody of the law, confided to a trustee whose bond is her continuing security and protection and whose stewardship is controlled by law. In this bonnection we might mention Sec. 10939 G. C. by virtue of which probate courts are given special supervision over the estates of minors “to promote the faithful and correct discharge of the duties of guardians and to preserve the estates of minors for whom guardians are appointed” a provision intended to prevent the failure of guardians to do full duty in the administration of their trusts. Reverting to the New Hampshire case referred to, in that case the minor herself accepted and receipted for her legacy, but not so here. Presumably the defendant in error on account of her tender years knew nothing whatever of the transaction referred to at the Thompson homestead when said division was made in January, 1908, but it appears of record that up to that time, at least up to the time of the commencement of proceedings herein, she has not received a dollar of the sum so received by her guardian, nor does it appear that said guardian has accounted for the same or any part thereof. There being no opportunity afforded her for a return of the money so received by her guardian, of course she could not restore it to the estate, nor could she be called upon to do so. Vogelsang v. Null, 67 Texas, 465, 468 [3 S. W. 451] ; Stull v. Harris, 51 Ark., 294 [11 S. W. 104; 2 L. R. A. 741], Nor was there any-ratification of the act of her guardian shown, but a prompt avoidance of the same upon her attaining her majority followed as evidenced by the commencement of proceedings herein.

Referring to the admission of the executors in dividing this estate to the extent of $15,000 between themselves and not including the same in their inventory of the estate assets, it was claimed that they were led to make such division to avoid the payment of taxes thereon. It may be that such was their purpose, and if it was, it is unnecessary to add that such act was no less a violation of law and of trusteeship of estate property as well. Counsel for plaintiffs in error say “it was irregular but not illegal.” "We do not feel called upon to discuss the claim of the state upon estates for the payment of taxes, nor of the duties of executors in respect to trust funds. Suffice it to say that the distinction sought to be made here by counsel in this matter does not appeal to the judgment or conscience of this court. Continuing counsel add: “So that when Charles T. Miles collected the $5,000 from himself and his co-executor he was simply doing his duty, and the legal duty done binds his ward.” And the logic of this proposition, too, fails to commend itself to the approval of the court. An examination of this record shows that within a few days after their appointment and qualification, these executors, acting without bond, assembled the more available assets of this estate and parceled them out between themselves and the" trustee of the residuary estate of said granddaughter, without any order or sanction of the court having jurisdiction over the distribution of estates, and without even making any return to said court of an inventory of such assets or of such distribution. The statutes plainly point out the manner of making distribution of the assets of the estate of a deceased person, and it is enough to say that these statutes were not followed in this instance. Further, we dissent from the conclusion stated by counsel that such act of the guardian “binds his ward. ’ ’ While the authorities in all jurisdictions are not in accord upon this subject, we believe the general rule is sustained by the weight of authority and upon reason, that the guardian can not thus bind his ward, and we therefore hold that the defendant in error is not equitably estopped from maintaining this action to contest said will: 22 Cye., 512 and cases cited; Kelley v. Hazzard, 96 Ohio St. 19 [117 N. E. 182]; Lanning v. Brown, 84 Ohio St. 385 [95 N. E. 921; 24 Ann. Cas. 772].

The second ground of error alleged is the rejection of the testimony offered by the witness Calvin Trott, called to testify on behalf of the plaintiffs in error, to a certain conversation had between himself and the said Phoebe Thompson, deceased, in reference to the latter’s will after the same has been drafted by one R. R. Melntire, when the said Trott was called into the house of the said deceased to examine said will and inform her if the same properly stated and embodied her requests as made known to him. The questions propounded to said witness were as follows:

“Q. * * * Now did you have a talk with Mrs. Thompson there about this will? * # *
A. I did.
Q. Now the question! You may state what she said and what you said. ’ ’

On objection being made the same was sustained by the court' below and an exception duly taken. The question made is simply one involving the competency of the witness to testify to the conversation referred to. That the witness Trott was considered by the deceased as her attorney in relation to her will is apparent. Was the conversation referred to competent? If it was, it is conceded that it falls within the exception named in Sec. 11494 G. C., and which reads as follows:

“An attorney, concerning a communication made to him by bis client in that relation, or his advice to his client; or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient. But the attorney or physician may testify by express consent of the client or patient : and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.”

While in its final analysis the determination of what appears to be the issues as made by the evidence in the case tending to show want of testamentary capacity on the part of the testatrix and undue influence upon her, is not to be lost sight of, still the question here presented is one of the competency of testimony arising out of a confidential relation created by the act of the parties which is protected by law, unless it falls within the exception enumerated in said See. 11494. True, 'the testimony offered, if introduced, may have thrown light upon the state of mind and the expressed wishes of the testatrix, but the law has wisely placed a ban upon and excluded communications between attorney and client pending professional relations, unless the party expressly waives such privileged communications. In their exhaustive research, counsel for plaintiffs in error cite us to numerous decisions of courts of last resort of various states bolding— (1) that an attorney may testify to communications made to bim by a deceased client upon a contest of tbe validity of tbe will of sucb deceased client; and (2) that in a will contest a waiver of any disability growing out of the confidential relation and privileged communications made to- an attorney by a deceased client may be made by the personal representative, executor or administrator. But it must be remembered that we have in this state a statute prescribing a rule of evidence in this class of cases, which has been construed by the Supreme Court of this state, and whose decision is controlling with this court. Decisions in other states are persuasive and useful only when the Supreme Court of this state has not passed upon the same or like questions presented for solution, but Avhen so passed upon and adjudicated, such adjudication is to be followed by inferior courts. The case referred to is the case of Ausdenmoore v. Holzbach, 89 Ohio St. 381 [106 N. E. 41], which we think is decisive of the principle involved in the question raised here. In that case the contention arose over the question of “the admissibility of the evidence of certain physicians touching the nature and seriousness of the injuries of the plaintiff below,” and the court in considering the exceptions mentioned in said See. 11494, namely, “but the attorney or physician may testify by express consent of the client or patient, and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject,” placed the following construction on the said exceptions and held:

‘ ‘ This qualifying clause Ave hold to mean that there can not be a waiver except in two ways: First, by an express consent to the patient, or by the patient taking the stand and voluntarily testifying as to the things and matters communicated to his physician, the latter being held to be in effect an express waiver as to that physician. There being no express waiver nor any testimony by the plaintiff, touching the things and matters communicated to such physician, whose testimony was excluded, we find there was no error.”

Here, as there, no express waiver was shovm, not er^en a syllable of testimony having been offered to show that such communication was authorized by the deceased. Her lips Avere closed in death, and she could not be heard to testify. Of course it is unnecessary to add that the situation would have been different had the witness Trott signed said will as a witness, in which event he would have been released from the operation of said statute. Baird v. Dietrick, 8 App. 198 [28 O. C. A. 257].

Following the decision of the Supreme Court in the case referred to, we hold that the action of the court below in excluding the testimony offered by the witness Trott was proper and that the same was not erroneous.

It was also contended on behalf of the plaintiffs in error that the court below erred in its charge to the jury, especially in giving what is designated as request No. 3, which reads as follows:

“Fraud is in its nature closely allied to undue influence and it is practically impossible to distinguish the two as the same evidence often tends to support each charge. ’ ’

The foregoing appears to be an extract from the text of Page, Wills, Sec. 122, and which appears to be supported by authorities cited in a note.

As we had occasion to remark at the outset of this opinion, the form of petition filed herein is authorized by statute, and while there may exist a division of opinion in the profession as to the propriety of such legislative enactment — overturning and setting aside as it does, in the opinion of many, the rules of pleading formally observed in such cases — it is a form of pleading authorized by statute and therefore adopted and followed: As was said by Judge Williams, speaking for the court, in the ease of Dew v. Reid, 52 Ohio St. 519 [40 N. E. 718] :

“While that issue may be made up either by the pleadings, or by an order entered on the journal of the court, it must, whichever the mode adopted, be the broad issue required by the statute, whether the instrument produced is the valid will of the alleged testator; and, as the proof may be commensurate with the issue, any competent evidence tending to prove that, fo*r any reason, it is not his valid will, is admissible, and should receive proper consideration by the jury.”

Hence the door is wide open for the admission of any competent evidence tending to prove the issue. Just how far the question of fraud may be removed from the question of undue influence in a will case may be difficult of intelligent solution. Indeed the history of litigation of this character often-times shows that they are closely allied — so much so that they may be termed close neighbors, but whatever the fact, such fact does not lessen the duty of the trial court to properly instruct the jury in relation thereto. Here it was claimed on the part of the plaintiffs in error that fraud was not charged, nor was it shown upon the trial, the contrary being claimed on the part of the defendant in error. While we recognize the general rule that the jury should be instructed with reference to the issues in the ease on trial, and not be given in abstract and general terms, when such terms may mislead the jury, and further, that it is error to introduce into a charge an instruction on an issue not raised by the pleadings or evidence, we are far from being persuaded -that a reading of the evidence contained in the bill of exceptions in this case does not furnish sufficient ground for the instruction given and as given. At best, we do not think said instruction can be considered as prejudicially affecting the interests of the plaintiffs in error in this action.

As to the remaining ground of error, namely, that the verdict of the jury is against the weight of the evidence, it is a sufficient answer to this to say that the record herein does not make a ease to warrant the interference of the court on this ground.

The judgment of the court of common pleas is affirmed.

Houck, J. and Patterson, J., concur.


author: MIDDLETON, J.

text:
    WILLS
    [Scioto (4th) Court of Appeals,
    June 3, 1920.]
    Walters, Sayre and Middleton, JJ.

      Mary A. Burns et al v. Mary Crowe.
    1. No Change in Ohio Rule Making Incompetent Opinions of Witness as to Capacity of Decedent to Make Will.
    No opinion of the Supreme Court in any way modifies or relaxes the rule in Ohio as to the competency of lay testimony in respect to the capacity of a decedent to make the will which he did make, but while one opinion is confined to criticism of the reasons for establishing such a rule, yet error can not be predicated on the refusal of a court to receive the testimony of witnesses expressive of an opinion as to the mental testamentary capacity of the decedent, regardless of the competency of such witnesses to form a trustworthy opinion in that behalf.
    2. Evidence that Beneficiary Obtained Consent of Testator to Make Will, Applied for Guardianship for Imbecility Precludes Instruction Denying Undue Influence.
    It is not error for a court to refuse to instruct the jury in a will case that there is no evidence sustaining the claim of undue influence, when evidence has been offered to the effect that a beneficiary under the will obtained the consent of the decedent to the calling of a lawyer to draw the will, and that a lawyer was procured and the will executed, and that two weeks later the same beneficiary applied to the probate court for the appointment of a guardian for the decedent on the ground of imbecility and was subsequently named as one of the guardians appointed by said court.

      Blair é Blair, for plaintiffs in error.

      T. S. Hogan, Miller & Searl, and A. T. Holcomb, for defendant in error.

       Motion to certify overruled by Supreme Court, June 28, 1920.

   MIDDLETON, J.

This is a proceeding in error to reverse a judgment of the court of common pleas setting aside, by the verdict of a jury, the last will and testament of one John Crowe, deceased.'

The petition in error presents no new or unusual questions. It is contended by the plaintiffs in error that there was prejudicial error in the trial below:

First — In the exclusion of evidence offered by them.

Second — In refusing to give certain instructions to the jury requested by them.

Third — That the verdict is against the manifest weight of the evidence.

The evidence excluded in the trial in respect to which complaint is now made, was the answer of Judge Beatty, who adjudged the testator to be an imbecile, soon after the will was executed, to the following question:

“I will ask you if, in your judgment, from what you saw and learned of John Crowe, he had sufficient mind and memory to make á proper testamentary disposition of his property on the date you saw him ? ’1

And also the withdrawal from the consideration of the jury the last sentence in the answer of Arthur H. Bannon, the attorney who prepared the will and was present when it was signed, to a question regarding the mental condition of the testator at the time he made his will, which answer and question are as follows:

‘ ‘ Q. Now, Mr. Bannon, I will ask you what his mental condition was in your judgment at the time he executed and signed that will on March 15, 1915!
A. He had a well-balanced mind at the time, and knew what he was doing, and was able to make a will. ’ ’

The witness’ statement “he was able to make a will” was withdrawn from the jury.

The action of the court in both instances was completely in harmony with the settled rule in this state as announced by our Supreme Court in Runyan v. Price, 15 Ohio St. 1, and reaffirmed by the same court in the more recent case of Bahl v. Byal, 90 Ohio St. 129 [106 N. E. 129], decided March 17, 1914. In the former ease it was held in the third paragraph of syllabus:

1 ‘ * * nor can he be asked his opinion as to the capacity of a testator to make a will. Such inquiry involves a matter of law; also assumes that the witness knows the degree of capacity required to perform the act in issue. ’ ’

And in the latter case in the first paragraph of syllabus it is said:

“It is not competent, in a proceeding to contest a will, for a witness to give an opinion as to whether the testator had capacity to make a will. But the physical and mental conditions from which it may be determined by the court and jury whether he had such capacity are facts which- may be shown by evidence of manifestations of such conditions.”

While this court is satisfied that both witnesses involved here are undoubtedly qualified to know, and did know, the degree of capacity required by law to make a valid last will and testament, yet this inquiry in both instances involves the matter which, under the law, is to be determined by the jury, and is therefore within the inhibition named in the rule above quoted that it involves a matter of law. Therefore, the answers of both witnesses were incompetent.

It is contended, however, that the later case of Niemes v. Niemes, 97 Ohio St. 145 [119 N. E. 503], modifies or relaxes this rule. We have read this ease with great care, and while the opinion of the court by Judge Nichols is in very interesting discussion of the subject of the admission of lay testimony in respect to testamentary capacity it does not, in our judgment, decide anything pertinent to our inquiry here, nor does it modify in any degree the rule as established in Runyan v. Price, supra. At most, this opinion is a criticism of the reasons for the establishment of the rule which excludes such testimony. We can not, therefore, accept this case as authority for the admission of the testimony of these witnesses.

The next error complained of relates to the refusal of the court to instruct the jury that there was no evidence to sustain the claim of undue influence. We can not discuss in detail this whole record. The testimony of one witness — Andrew Crowe, a brother of the testator and one of the two beneficiaries named in the last will — furnishes, in our judgment, ample reason to support the refusal of the court to give this instruction. This witness testified that he procured the attorney who wrote the will. He says this was done at the instance of the testator. This shows that this witness undoubtedly discussed the matter of making a will with the testator before it was made, that he was in a position to talk to the testator before the latter made his will, and that he sustained such a relation to John Crowe that Crowe entrusted him with the duty of procuring a lawyer to write the will. It thus appears that this witness not only had the opportunity to influence the testator, but his further acts and admissions show that he had the disposition to control the testator if he could. It appears that, with the co-operation of others, he later succeeded in isolating John Crowe so that other relatives could not see him, and even refused the attorneys representing such relatives admission to Crowe’s presence, and then boasted of it when testifying. His interest in this matter is further shown by the fact that he filed an application charging the testator with imbecility within a short time after this will was made, probably not more than two weeks, and that subsequently he was appointed one of the guardians of the testator. It is argued that all these facts are without probative force as they occurred after the will was made. "While it is true they did so occur, yet they were so recent after the making of the will as to furnish strong proof, in our judgment, of this witness’ attitude and disposition toward Crowe not only after, but before the will was made, and his evident purpose and intention to prevent testator from controlling his property and disposing of it as he might see fit. Here, at least, was a scintilla of evidence to support the issue of undue influence and required its submission to a jury.

Instruction number eleven might well have been given in the general charge, but the court was not absolutely required to give it, as the jury were fully and carefully charged on that issue in a most excellent exposition of the law, not only upon the question of undue influence but upon the mental capacity required in eases of this character. We can not see upon what theory any prejudice resulted from the court’s refusal to give this instruction.

On the claim that the verdict was against the manifest weight of the evidence candor compels us to say that we are not satisfied with this verdict. We are not convinced, by any means, that John Crowe was not competent to make a will, but we can not substitute ourselves for the jury. The appointment of guardians by the probate court of this county very soon after this will was executed, upon the ground that the testator was an imbecile, was undoubtedly the most potent factor in bringing about the verdict in this case. These proceedings were instituted at the instance of the two beneficiaries named in the will, and it was upon their sworn affidavits that John Crowe was an imbecile that they were appointed as his guardians, and all this within a month, or perhaps a day or two longer, of the making of his will. Under such facts we can not say that the record does not present evidence to- sustain this verdict, nor that the verdict is clearly wrong. Our position in respect to this claim is aptly stated by the court in McGatrick v. Wason, 4 Ohio St. 575:

‘ ‘ Should we disturb this finding ? If it is clearly wrong we must do so; if we only doubt its correctness we must let it alone. In French v. Millard, 2 Ohio St. [44] 53, this court said: ‘We are not satisfied that the verdict of the jury was right. But this is not enough. A mere difference of opinion between court and jury does not warrant the former in setting aside the finding of the latter. That would be, in effect, to abolish the institution of juries and substitute the court to try all questions of fact. It must be clear that the jury has erred before a new trial will be granted on the ground that the verdict is against the weight of the evidence. ’ ’ ’

Judgment affirmed.

Walters and Sayre, JJ., concur.


author: HAMILTON, J.

text:
    SCHOOLS
    [Hamilton (1st) Court of Appeals,
    January 17, 1921.]
    ShoW, Hamilton and Cushing, JJ.
    McHenry v. Cincinnati (Bd. of Ed.)
    Board Held Liable for Injury to Pupil by School Dentist.
    A board of education is liable for injury from the wrongful act of a servant in the performance of a purely ministerial act, when the wrongful act was the proximate cause of the injury and without fault on the part of the injured person. Fowler v. Cleveland, 100 Ohio St. 158, followed.

      Theodore Horstmcm, for plaintiff in error.

      Saul Zielonka and Harry B. Weber, for defendant in error.
   HAMILTON, J.

It appears from the petition that William McHenry, Jr., a boy, 11 years of age, was a pupil in the public schools under the jurisdiction of the board of education of the school district of Cincinnati, Ohio; that he was required by the principal of the school to submit himself for examination and treatment for his teeth to a dentist who was an employe of the defendant, and that without the knowledge of his parents the dentist extracted one of the boy’s teeth, and in doing so fractured the jawbone; and that he was negligently treated and as a result suffered from blood poisoning, the removal of his jawbone, the amputation of his left leg, stiffening of the shoulder and other injuries. The petition prayed for damages.

To this petition the defendant filed a demurrer on the ground that the court had no jurisdiction of the subject of the action and that the petition did not state facts which showed a cause of action. The trial court sustained the demurrer and dismissed the petition. Error is now prosecuted to this court.

There is no statutory authority for maintaining such an action. It was formerly stated to be tbe settled law of tbe state of Ohio, as well as of the land, that such a body corporate as the defendant herein is not liable for an action in tort unless specifically authorized by the statute, and this rule has been so well settled, and so often thus decided, that the citing of authorities is unnecessary. It appears, however, that our own Supreme Court, in the recent case of Fowler v. Cleveland, 100 Ohio St. 158, departed from this which seemed to be the established law of the land. That case was an action brought against the city of Cleveland by the plaintiff for the wrongful death of Fowler, caused by its fire department’s motor hose truck in returning from a fire. The ease of Frederick v. Columbus, 58 Ohio St., 538 [51 N. E., 35] has been the recognized authority in the state of Ohio for holding that such actions can not be maintained without statutory authority. In the Fowler case the Frederick case is specifically overruled, thereby departing from the settled law with reference to the liability of municipal corporations for tort. The question then is, Does the Fowler case apply to other governmental subdivisions of the state? Plaintiff’s right to maintain this action must be founded upon the rule pronounced by the court in the Fowler case. The principle announced as set forth in the third proposition of the syllabus in the Fowler case is:

“But where a wrongful act which has caused injury was done by the servants or agents of a municipality in the performance of a purely ministerial act which was the proximate cause of the injury without fault on the part of the injured person respondent superior applies and the municipality is liable. ’ ’

It will be noted a distinction is made between acts performed in a governmental capacity and the performance of purely ministerial acts, but there seems to be no well-settled line of demarcation between what constitutes a governmental act and a purely ministerial act. However, that need give no concern in the consideration of this case, for the reason that the act of negligence complained of is clearly within the meaning of a purely ministerial act. The trial court in its decision undertook to make a distinction between the applicability of the rule in the Fowler case to municipalities and its applicability to other corporate entities, and this position is also taken by counsel for defendant in error here. However, no authority or reason is announced for that distinction, and it rests on the statement that the Fowler case only determines the questions as to municipalities and does not extend to other subdivision corporate entities, the claim being that other subdivisions are but qws¿-corporate entities. While the holding in the syllabus in the Fowler ease only applies .to municipalities, if we are to consider the reasoning and logic of the decision, as pronounced by Judge Johnson, for the majority of the court, we are led to the conclusion that the court intended the rule to apply generally to subdivisions of the state wherever such subdivision is engaged in governmental or ministerial acts. That the board of education is such is clearly shown by See. 4749 6. C., which provides:

“The board of education of each school district, organized under the provisions of this title, shall be a body politic and corporate, and, as such, capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of real and personal property, and taking and holding in trust for the use and benefit of such district any grant or devise of land and any donation or bequest of money or other personal property and of exercising such other powers and privileges as are conferred by this title and the laws relating to the public schools of this state.5 ’

The opinion of Judge Johnson is largely made up of eriticism of the rule which had heretofore existed, and the reasons for the same. The language used is general in its terms. That this is true is shown by the following excerpts from the opinion (pages 163 and 164) :

“The power to determine whether certain steps shall be taken in the interest of the public welfare is governmental, and the exercise and expression of the discretion as to the kind of steps and the extent of them is governmental. * * * It was a favorite maxim of the early times in this country that that government is best which governs least, and the authority of the federal government to make internal improvements was long contested. It was the natural expression of protest against the ancient idea that the sovereign was the active and all-pervading influence, and that the duty of the people was to exalt the sovereignty.
“Now, the activities and undertakings of a municipal corporation are manifold. They reach and touch in countless directions. It seems to be utterly unreasonable that all these activities and enterprises which are brought closely home to the lives of all of the people of the municipality must still be regarded as bound up in the vague and uncertain sphere of what is called a governmental function. ’ ’

It will be noted that these remarks were made in discussing the distinction between governmental and ministerial functions, but there is nothing in the opinion in the way of discussion as to whether a municipality might be liable under such circumstances, and another subdivision of the state, having like duties by way of governmental or ministerial functions to perform, might not. That the court did not intend to limit the rule laid down in this ease to municipalities is further shown by reference to the fact that the general assembly of Ohio has by statute created a liability against a county in favor of persons injured by mob violence. While this refers to statutory authority on maintaining an action, it shows that the court was not limiting itself in its pronouncement of the new rule to municipalities. Judge Wanamaker in a concurring opinion goes further than the majority opinion and sweeps aside the question of class or subdivision or functions of a subdivision, and puts himself on the broad ground of the right of every person under the constitution for an injury done him in his land, goods, person or reputation to have remedy by due course of law.

The board of education as defined by the statute is “a body politic and corporate, and, as such, capable of suing and being sued, contracting and being contracted with,” etc. Its duties are governmental and ministerial. It has the power to determine whether certain steps shall be taken in the interest of the public welfare in educational matters, and the exercise and expression of the discretion as to the kind of steps and the extent of them, all of which is governmental.

It may well be claimed that formerly the action of school boards was governmental only. Now the activities, undertakings of the board of education in carrying out the modern thought of education and development of the physical, as well as of the mental side of the pupil, are manifold. They reach and touch in countless directions. The health of the child is considered as important as the mental development. Medical examination is had in order to classify pupils. Music, art, domestic science, athletics and calisthenics all have been added. It seems unreasonable that all these activities and enterprises, “which are brought so closely home to the lives of the people of the school district, must still be regarded as bound up in the uncertain sphere of what is called a governmental function. ’ ’ In reason and in logic the rule in the case of Fowler v. Cleveland, supra,, applies to boards of education, and, is, therefore, controlling in this case. Until the Supreme Court limits the application of the principle this court should follow the rule enunciated by it.

The court erred in sustaining the demurrer to the petition and the judgment will be reversed.

Shohl and Cushing, JJ., concur.