text:
    Gibbons, Appellee, v. Baltimore & Ohio Rd. Co. et al., Appellants.

      (No. 4585
    Decided March 3, 1952.)

      Messrs. Taylor, Cruey & Kelb and Messrs. Bryce & Dujfey, for appellee.

      Mr. Joel S. Rhinefort, for appellants.
   Fess, J.

This cause is here on appeal on questions of law from a judgment entered upon a verdict for plaintiff in the sum of $75,000. The action was brought by the plaintiff against the defendant railroads to recover for personal injuries sustained in a collision between an automobile in which plaintiff was riding as a passenger and a train operated by the defendants. The collision occurred about 1 a. m. on August 17, 1946, at the intersection of Phillips avenue and The New York Central Railroad tracks in Toledo, Ohio. The grounds of negligence upon which the case was tried were:

1. In operating said train while approaching said crossing at an excessive, dangerous and unlawful rate of speed, to wit, more than sixty miles an hour.

2. In failing to lower the crossing gates upon the approach of said train in time to warn the plaintiff and the driver of said automobile of the approach of said train, so that said driver would have refrained from or have been prevented from driving said automobile upon said crossing and being struck by said train.

Separate motions to strike the allegations from the petition were overruled and in their answers the defendants, after certain admissions, denied negligence and pleaded contributory negligence.

While, under normal circumstances, there is little or no restriction with respect to the speed of a railroad train in the open country (Cleveland, C., C. & I. Ry. Co. v. Schneider, 45 Ohio St., 678, 694, 17 N. E., 321; New York, Chicago & St. Louis Rd. Co. v. Kistler, 66 Ohio St., 326, 64 N. E., 130), within a municipality or populous area the speed must be such as is commensúrate with the exercise of ordinary care to prevent harm, and, with respect to one approaching a grade-crossing within a municipality, the degree of care depends upon the nature of the surrounding area, the volume of traffic at the crossing, and other circumstances bearing upon the subject. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Kuhl, Admx., 123 Ohio St., 552, 176 N. E., 222; New York, Chicago & St. Louis Rd. Co. v. Van Dorp, 36 Ohio App., 530, 173 N. E., 445; Croke v. Chesapeake & Ohio Ry. Co., 86 Ohio App., 483, 93 N. E. (2d), 311.

The use of the word, “unlawful,” in the allegation, although improper and subject to a motion to strike, is not to be construed as importing violation of a statute but rather as meaning contrary to normal or conventional procedure — in other words, “negligent. ’ ’

With respect to lowering of gates, the defendants recognized the crossing in question as dangerous to the traveling public and very properly adopted adequate equipment for the protection of the public. Cf. Cleveland, C., C. & I. Ry. Co. v. Schneider, supra. No question is presented as to the adequacy of the protective measures or that additional precautions should have been provided. The negligence charged is the failure to exercise ordinary care in the use of the facilities. The motions to strike the allegations of negligence were properly overruled and the assignments of error with regard thereto are not sustained.

Error is assigned also regarding the admission of evidence showing the character of the neighborhood of the crossing and obstructions along the tracks. Although a railroad ordinarily is not responsible for structures off its right of way which may obstruct the view, nevertheless, the degree of care to be exercised is determined by the danger to be apprehended when a crossing is in a populous community and when structures maintained near the tracks obscure the view of approaching trains. Weaver v. Columbus, Shawnee & Hocking Ry. Co., 76 Ohio St., 164, 81 N. E., 180; Loos v. Wheeling & Lake Erie Ry. Co., 60 Ohio App., 527, 533, 22 N. E. (2d), 217; Icsman, Admr., v. New York Central Rd. Co., 85 Ohio App., 47, 87 N. E. (2d), 829. The cited cases relate primarily to the issue of additional warning precautions at a crossing rather than to the issue of speed. Since adequate precautionary measures were employed at the crossing in the instant case, the evidence relating to the surrounding area was immaterial on any issue with respect to the nature of the crossing and the protection provided, but such evidence was admissible on the issue of the speed of the train. Furthermore, the plaintiff was charged with contributory negligence and, while introduced somewhat out of order, the evidence was also admissible upon the issue of exercise of ordinary care on the part of the plaintiff himself. At the conclusion of plaintiff’s case, plaintiff sought leave to amend by alleging that the view of one approaching the crossing was obstructed by structures maintained on the right of way and that the crossing was thereby rendered extraordinarily dangerous. Such request was properly denied since the hazardous nature of the crossing was immaterial in the absence of a claim that adequate precautions were not provided.

Over objection, testimony on behalf of the plaintiff was admitted tending to show that the bell on the engine was not ringing and that the whistle was not blown. There was no allegation of negligence with respect to these items and it was error to admit such testimony. The evidence was positively and emphatically rebutted by a number of defense witnesses. At the conclusion of the trial, upon defendants’ special request, the jury was instructed not to consider any evidence as to the blowing of the whistle or the sounding of the bell on the train. If, during the presentation of his own case, the plaintiff offers evidence to support a ground of recovery substantially different from that set forth in the petition, and the same is objected to as incompetent because of variance from the allegations of the petition, proper practice requires that such evidence shall be excluded until the plaintiff has amended his petition and an issue is made up respecting the new matter incorporated in such amendment. Hilsinger v. Trickett, 86 Ohio St., 286, 99 N. E., 305, Ann. Cas. 1913D, 421; Groves v. Freedom Oil Works Co., 60 Ohio App., 376, 21 N. E. (2d), 599. But in Klein v. Thompson, 19 Ohio St., 569, 571, the Supreme Court stated:

“In this state we do not regard the admission of improper evidence to the jury, which is afterwards ruled out, as of itself constituting ground for reversal.”

See, also, Friedl v. Lackman, 136 Ohio St., 110, 23 N. E. (2d), 950. Giving due regard to the substantial justice statute (Section 11364, General Code), the evidence must be of such a character that its sting and effect would still remain notwithstanding its later exclusion by the court, as, for example, the admission of evidence of liability insurance. Cf. Wilson v. Wesler, Admx., 27 Ohio App., 386, 160 N. E., 863.

How far an instruction excluding inadmissible testimony will, with ordinary jurors, affect their minds by removing therefrom the impression they may have received from the testimony, is problematical, but in the absence of a showing to the contrary the jury is presumed to have followed the court’s instructions. To hold otherwise would lead to holding that erroneous instructions on the law are nonprejudicial. As hereinafter indicated, there was sufficient proper evidence before the jury upon the issue relating to the lowering of the gates to support a finding of negligence, and in the absence of interrogatories testing the general verdict it can not be said that the admission of the testimony with respect to bell and whistle, although erroneous, was prejudicial.

Over objection, a brother-in-law of the driver of the automobile (who died as a result of the collision) was permitted to testify as to the volume of vehicular traffic over the crossing and to facts indicating that the driver was familiar with the crossing. In their answer, the defendants raised the issue of the driver’s negligence. Apparently it is now proper to introduce evidence of a third party’s negligence. Schreiber v. National Smelting Co., 157 Ohio St., 1, 104 N. E. (2d), 4. As above indicated, evidence of the volume of traffic had some, although possibly remote, bearing on the speed of the train. In the third paragraph of the syllabus of Tanzi v. New York Central Rd. Co., 155 Ohio St., 149, 98 N. E. (2d), 39, reference is made to a motorist who knows of the customary practice of the railroad to warn motorists of approaching trains. The evidence regarding the driver’s familiarity with the crossing and its protection was therefore admissible to support plaintiff’s contention that the driver, as well as the «plaintiff, was entitled to place some reliance upon the upright gates at the crossing.

An important witness for the plaintiff was a cabdriver who said he saw the collision and also testified that plaintiff’s car passed his cab, which was then stationary three or four blocks away from the railroad crossing. During his cross-examination he could not estimate the speed of the automobile in which plaintiff was riding, at the time it passed him, but he said he pulled out after the automobile passed and “I was going 30 or 32 miles per hour and I was picking up speed, catching him.” The cabdriver said that his cab could not be driven more than 35 miles per hour because the governor on the cab prevented it. Upon defense, the sergeant of traffic of the Toledo police was interrogated as to whether he had any experience with governors and whether a cab with its governor set at 35 miles per hour could go faster than that rate. Objection to this line of testimony was sustained and the defendant was not permitted to pursue the matter further. There was no tender or offer to prove. Defendants contend that no tender was required, and cite Banks v. Canton Hardware Co., 156 Ohio St., 453, 103 N. E. (2d), 568. In the Banks case, however, the court had erroneously refused to hear any evidence in support of the plaintiff’s case, and the prejudicial character of the error was apparent from the record. The Supreme Court reaffirmed the principle announced in Smith v. Rhodes & Wilt, 68 Ohio St., 500, 68 N. E., 7, that in the absence of a profert a reviewing court can not determine whether the action of the trial court was prejudicial. See, also, Maxwell Motor Corp. v. Winter, 118 Ohio St., 622, 163 N. E., 198. Furthermore, the questions were not directed to the governor on the cab, to which the evidence sought to be refuted related. The answers sought would be hypothetical and would relate to a collateral is*sue, the possible speed of the witness’ own cab. The termination of this line of inquiry was therefore within the sound discretion of the court.

Upon plaintiff’s request, the court properly instructed the jury that any negligence on the part of the driver could not be imputed to the plaintiff, and if they found the gates were upright, the plaintiff was entitled to place some reliance upon the indication of safety which the upright gates implied.

Error is also assigned as to the refusal of a number of special instructions requested by the defendants before argument. Thirty-five requests were submitted and seven were given. In American Steel Packing Co. v. Conkle, 86 Ohio St., 117, 99 N. E., 89, the Supreme Court severely criticized the giving of an unreasonable number of charges. Although prejudicial error may be committed by giving an erroneous statement of the law applicable to the issues or by giving an unreasonable number of special charges, prejudicial error can not be predicated upon the rejection of a large number of special instructions, even though they may be couched in proper terminology. As stated by the court in the Packing Company case: “This privilege accorded by the statute ought to be reasonably exercised.” See, also, Fairchild v. Lake Shore Electric Ry. Co., 101 Ohio St., 261, 274, 128 N. E., 168.

We have, however, reviewed the twenty-eight charges refused and find no error in refusing them. Several of them present correct abstract propositions of law which were properly refused on that ground alone. Others were properly rejected as inapplicable to the facts or the issues in the case. Charges relating to imputed negligence, joint enterprise and intoxication of the plaintiff and his driver, considering the language employed therein, were properly rejected. Charges based upon the principle announced in Reed, Admr., v. Erie Rd. Co., 134 Ohio St., 31, 15 N. E. (2d), 637, and Capelle v. Baltimore & Ohio Rd. Co., 136 Ohio St., 203, 24 N. E. (2d), 822, did not properly apply the principle to the evidence and issues present in the case and were also properly refused. The request regarding an inference of contributory negligence neglected to limit such inference to one arising from plaintiff’s ease. In the absence of evidence that three people riding in the front seat of the car interfered with its operation or obstructed, tbe view of the driver, the instructions on that subject were properly refused.

Counsel for defendants assert that under Schreiber v. National Smelting Co., supra, defendants’ requests Nos. 9 and 34 should have been given. Each of the tendered requests lacked certain essential elements present in the charge approved in the Schreiber case, and they were also properly refused.

We find no prejudicial error in the general charge. Upon defendants’ request, the court instructed the jury regarding the duties of the driver of an automobile under Sections 6307-20, 6307-21 and 6307-60, General Code, and with respect to the prima facie speed limit on Phillips avenue. Under Schreiber v. National Smelting Co., supra, instructions relating to negligence of a third party are proper. The court also referred to several proximate causes contrary to the principle announced in Conor v. Flick, 64 Ohio App., 259, 28 N. E. (2d), 657, that “however many proximately contributing causes thereto there may be, there can be but one proximate cause.” So far as the jury is concerned, it is largely a distinction without a difference, and was not prejudicial to the defendants, since they were insisting that the injury was due to the negligence of the driver.

Upon the issue of negligence in failing to lower the gates, the evidence greatly preponderates in favor of the defendants, but there is some evidence which, if believed by the jury, as it evidently was, supports the claim of the plaintiff. Except under the doctrine of incontrovertible facts which refute a witness’ testimony, the Court of Appeals may not invade the province of the jury and disbelieve the testimony of a witness. If a verdict is supported by any competent, credible evidence which goes to all the essential elements of the case, the judgment may not be reversed as against the manifest weight of the evidence.

Counsel for plaintiff in his argument to the jury made certain disparaging remarks about the tower watchman and then said:

“This is the old gentleman in the tower. * * * and there is blood on his hands, there isn’t any question about it, that is the man who had the duty of getting those gates down, the man whose failure to get those gates down caused the death of two fine people.

( ( # # *

“There isn’t any doubt, ladies and gentlemen, that that has preyed on his mind, and he has tried to build up in his mind a justification that he did everything he could, over the years, and that has grown.

(( # # #

“Now, let’s consider some of his other'testimony— how has his mind reacted and what has he done to build up an excuse — an alibi, if you please — that41 am not responsible for the death of these people.’

< < * * *

“I submit to you, is just bald untruth. He was trying to mislead this jury.

¿ ^ íí* ^

“And he admitted, ladies and gentlemen, that he had lied to you the day before, deliberately lied. ’ ’

Later on, counsel also said:

“Mr. Rhinefort is trying to tell this jury that the railroad can drive its trains at any speed it wishes and the public be damned. That is what it amounts to. And he is' asking this jury to justify them and tell them that they can do that, and that they can go out and kill people at terrific speeds, at any time they want.

“Well, that doesn’t happen to be the law. They have tried to cast aspersions, as I said, upon the character of these parties. I don’t think they have to say ‘We can do anything we want to, we can not do anything wrong. We operated our trains at any speed we desire. We can go out and kill people, and then we can come into court and crucify their memories.’ That is what they are trying to do.

“They are saying that they can drive through crowded cities, they can have a buzzer system set out which only gives a matter of a few seconds to a poor old man they put in a tower to get the gates down, and they can come through there 90 — nay, 100 miles an hour, if they want to, and if they kill somebody, they say ‘We want to go scot free,’ and they are asking this jury to do that. ’ ’

Such inflammatory argument can not be condoned and on its face would tend to incite the jury, possibly contributing to the excessive verdict for three-fourths of the amount sought in the prayer. Somewhat similar remarks have been disapproved and held prejudicial by this court and also by the Supreme Court. Porter, an Infant, v. Toledo Terminal Rd. Co., 152 Ohio St., 463, 90 N. E. (2d), 142; Book, a Minor, v. Erskine & Sons, Inc., 154 Ohio St., 391, 96 N. E. (2d), 289. As in the Porter case, supra, the overruling of the objections to this argument may have raised an inference of approval thereof by the court in the minds of the jury. With or without objection, the court should have interfered and promptly instructed the jury to disregard the objectionable language. Cf. Golamb v. Layton, 154 Ohio St., 305, 95 N. E. (2d), 681.

The verdict is also excessive in its amount and is not supported by the evidence. Plaintiff suffered severe injuries. The most serious one was injury to the radial nerve ,of his left arm, which has resulted in permanent but partial paralysis of his left arm and hand. Apparently he has no other permanent injury. He can walk, swim, drive his own car and engage in his practice of medicine. During the first year after he was discharged from the hospital he made $6,000 in the practice of his medical profession in Media, Pennsylvania, where he opened an office. Upon graduation from medical schools and completion of his internship, he entered the service where he performed some surgery and handled orthopedic matters. While on terminal leave he was involved in the accident which prevented his practicing for a period of almost two years. He testified that on account of the disability to his left arm he is unable to practice surgery, orthopedics or obstetrics; that during the fifteen months prior to the trial he had been compelled to refuse and to refer to other physicians 100 cases of surgery, 25 orthopedic and 50 obstetrical cases; and that the usual charge in his community is $100 for surgery and obstetrics and $35 for orthopedic cases.

But this is not a case of total'disability where loss of livelihood is suffered. Plaintiff is able to continue the practice for which he qualified, medicine rather than surgery. In order to determine prospective earnings from another branch of medicine which plaintiff may have lost as a result of his injured arm, there should be some evidence to disclose what his earnings would be without engaging in surgery or other branches as a basis for computing his prospective loss of earning power. The plaintiff is entitled to recover only for his probable loss of earnings during his probable professional career. Bartlebaugh v. Pennsylvania Rd. Co., 150 Ohio St., 387, 390, 82 N. E. (2d), 853. Ordinarily, loss of earning capacity is proven by evidence of the earnings of the injured person before and after the injury. 25 Corpus Juris Secundum, 619, Section 87. Plaintiff should not be denied recovery for diminished earning capacity because he is unable to present evidence of earnings before his accident in contrast with lesser earnings thereafter, but there should be some substantial evidence of the probable effect upon his future earnings and the probability that he would enjoy a greater income by engaging in surgery, orthopedics and obstetrics in comparison with his probable income as a general practitioner or specialist in some branch of medicine in which his disability would not impair his capabilities. Proof with certainty or mathematical exactness is not required, nor need the proof be clear and indubitable, but the damages can not be left to mere conjecture. 25 Corpus Juris Secundum, 827, Section 162. Probability, not possibility, is requisite. LoSchiavo v. Northern Ohio Traction & Light Co., 106 Ohio St., 61, 138 N. E., 372, 27 A. L. R., 424. See annotations in 9 A. L. R., 510; 27 A. L. R., 431; 63 A. L. R., 142; 122 A. L. R., 297. Cf. Brandt v. Mansfield Rapid Transit, Inc., 153 Ohio St., 429, 92 N. E. (2d), 1.

We have considered each of the other assignments of error and find none of them prejudicial. But the inflammatory argument of counsel constituted error prejudicial to the defendants. We also find that the damages awarded are excessive and appear to have been given under the influence of passion and prejudice. The judgment is therefore reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Savord, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The State, ex rel. Parsons, v. Bushong, Supt.

      (No. 880
    Decided May 23, 1945.)

      Mr. Melvin C. Light and Mr. Willis 8. Siferd, for petitioner.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. H. 8. Zwolinski, for respondent.
   Per Curiam.

The action is one in habeas corpus instituted by Paul Parsons in his own proper person, upon the ground that his confinement at the Lima State Hospital is illegal, void and of no effect whatsoever for the reason that the Probate Court of Cuyahoga County, Ohio, was wholly without jurisdiction to make an adjudication of the question of the insanity of the petitioner and the commitment therefor, and for the further reason that the petitioner is sane and is being unlawfully restrained of his liberty by Dr. R. E. Bushong, as superintendent of Lima State Hospital.

To this petition a return was made by Dr. R. E. Bushong, as superintendent of Lima State Hospital, that he has now and has had the custody of the person of Paul W. Parsons since January 17, 1944, by virtue of his transfer from the Cleveland State Hospital, as ordered by the Department of Public Welfare under the provisions of Section 1890-70 of the (General Code.

This cause is incorrectly captioned as the proceeding is not brought by the state of Ohio on the relation of Paul Parsons but is brought by Paul Parsons, as petitioner, in his individual capacity, and the cause should be correctly caption, “In the Matter of the Petition for a Writ of Habeas Corpus for Paul Parsons.” It was unnecessary and improper to designate Dr. R. E. Bushong, superintendent of Lima State Hospital, who is charged with unlawfully restraining the petitioner of his liberty, as respondent in the caption to the cause. He is respondent only in his official capacity and only in the sense that he is the one required to make return of the writ of habeas corpus.

Trial was had on May 10 and 11,1944, at Lima, Ohio.

The evidence discloses that on the 28th of December, 1942, the wife of the petitioner, Jestine Mary Parsons, filed an affidavit with the Probate Court of Cuyahoga County, Ohio, reciting that the petitioner was mentally ill and that he is a violent or dangerous person and has homicidal tendencies, and that his being at large is dangerous to the community.

Doctors K. S. West and S. C. Lindsay, medical witnesses, appeared before the court at the time set for the hearing, which was at ten o’clock a. m., December 28, 1942.

There is nothing in the record to indicate whether the petitioner had notice of or was present at the hearing, or whether any other witnesses appeared or testified, except the two medical “and other witnesses.”

The record fails to show an observance of Section 1890-25 of the General Code, which, in substance, reads that no hearing shall be had upon an affidavit as is provided for in Section 1890-23, General Code, until the Probate Court has given written notice by mail, or otherwise, as the court may direct, to the following persons residing within the county: 1. Any person, whether a relative or not, designated by such person when such person is competent to make the selection. 2. Any person or persons that the probate judge determines should have notice of such hearing. All persons entitled to notice, as herein set out, shall be permitted to waive such notice.

The record is silent as to any waivers, as well as to the competency or incompeteney of the petitioner to make such a selection.

The only testimony on the subject is that of the petitioner who says that on December 28, 1942, at the time of the hearing and before then, he was competent to make such a selection and that he was neither requested to make such selection nor did he in any manner make such a selection.

Apparently the second class of persons who were summoned were the medical witnesses, which shows an observance of the provisions of the section relating to the second class of witnesses.

The issues, according to the pleadings and the statements of counsel, are: First, is it necessary for a Probate Court, in a hearing of this character, to affirmatively show in the record either that the petitioner was not competent at the time, or, that, if competent, the petitioner had the opportunity to designate or refuse to designate a person to be present at the hearing, and if such person was designated, a notice was given to such person, or a waiver of such notice duly filed? Second, was the petitioner sane or insane at the time of the hearing before this court?

Sections 7 and 8, Article IY of the Constitution of Ohio, make the Probate Court a constitutional court and a court of general jurisdiction in all probate and testamentary matters, the appointment of administrators and guardians, the settlement of accounts of executors, administrators and guardians, and further prescribe that such court shall have such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other jurisdiction in any county or counties as may be provided by law.

Sections 1890-23 to 1890-27, inclusive, General Code, provide for other jurisdiction, with especial reference to proceedings against one who is mentally ill, including the commencement of such proceedings, the hearing therein and the adjudication thereof and commitment therefor.

No presumption prevails in favor of the jurisdiction of a court or tribunal of inferior, limited or special jurisdiction and it is necessary, in order to sustain the proceedings of such a court, that the record show affirmatively that the court had jurisdiction. 21 Corpus Juris Secundum, 159, Courts, Section 105; 14 American Jurisprudence, 251, Courts, Section 8.

When exercising probate jurisdiction and such jurisdiction as is specifically indicated in the Constitution, Probate Courts are courts of general jurisdiction but cease to be such courts and become courts of limited, inferior or special jurisdiction when they are exercising special statutory powers. 21 Corpus Juris Secundum, 160, Courts, Section 106.

The distinction between a court of general jurisdiction and a court exercising limited, or special jurisdiction is that in the first instance the judgment in and of itself presumes that all facts necessary in order for the court to render a particular judgment existed and were duly found, and that every step necessary has been taken to give it jurisdiction. 21 Corpus Juris Secundum, 149, Courts, Section 96.

On the other hand, there is no presumption of jurisdiction where a court of general jurisdiction exercises, in a special statutory manner or otherwise than according to the course of the common law, special statutory powers not belonging to it as such court and not within its ordinary jurisdiction, since, under such circumstances, the court stands, with respect to the special powers exercised, on the same footing with courts of limited and special jurisdiction, and the record of such court must show upon its face a full compliance with the requirements in order to obtain jurisdiction. 21 Corpus Juris Secundum, 152, Courts, Section 96; Wilson, Sheriff, v. Lasure, 36 Ohio App., 107, 172 N. E., 694; Lewis v. Reed, 117 Ohio St., 152, 157 N. E., 897; In re O’Leary, 32 Ohio Law Abs., 122.

Therefore the presumption as to the jurisdiction of a court of general jurisdiction is rebutted and overcome only by recitals in the record affirmatively showing lack of jurisdiction, and on the other hand no presumption exists whatever in favor of the jurisdiction of courts of limited or special jurisdiction. 21 Corpus Juris Secundum, 153, Courts, Section 97.

The judgments of courts of special and limited jurisdiction may be examined thoroughly for the facts and evidence necessary to sustain them, as the decisions do not furnish evidence in themselves to show jurisdiction and its lawful exercise and every requisite for either jurisdiction or its lawful exercise must appear upon the face of the proceedings or they are a nullity. 21 Corpus Juris Secundum, 19, Courts, Section 2.

Excess of jurisdiction may be defined as the state of being beyond or outside the limits of jurisdiction as distinguished from the entire absence of jurisdiction. Although the proceedings are within the general jurisdiction of the court, its judgments are void with respect to a particular case because the conditions which alone authorize the exercise of the jurisdiction in that particular case are wanting, and hence the judicial power is not in fact lawfully invoked. Thus, a court may have jurisdiction of the subject matter and the party but its acts and order may nevertheless be in excess of its jurisdiction, as being something which it has no power to do and in this manner any act of the court in violation of statutory requirements may be considered to be in excess of jurisdiction. 21 Corpus Juris Secundum, 37, Courts, Section 25,

It is the opinion of this court that the Probate Court of Cuyahoga County, Ohio, was acting under purely statutory jurisdiction when it adjudicated that the petitioner was mentally ill and committed him as an insane person, and that by reason thereof it was a court of limited or special jurisdiction in which the judgment of the court and the proceedings must affirmatively show the observance by the court of all the statutory requirements, and especially Section 1890-25 of the General Code of Ohio.

It is therefore the conclusion of this court that the record of the Probate Court of Cuyahoga County, Ohio, as introduced in this proceeding, shows upon its face that the court was without jurisdiction and therefore the commitment by the court of the petitioner was illegal and void, for which reason the petitioner will be ordered released from the custody of the superintendent of the Lima State Hospital, subject, however, to certain conditions hereinafter set forth.

Two eminent physicians, with especial ability as to mental illness by study, experience and observation, testified positively in this court that the petitioner is in a paranoiac condition which is a mental illness of a violent nature in which one is vicious, has delusions of persecution, lacks the capacity to form balanced judgment, is dangerous to the public welfare, and is apt to exert violence indiscriminately upon other persons, and shows a strong degree of unreasonableness in all particulars, and that in their opinion he was insane at the time of the hearing in the Probate Court of Cuyahoga County, Ohio, on December 28, 1942, and that he is now an insane person and at this time should have the restraining influence of the state institution. These two doctors are employed by the state of Ohio and we have the right to and do believe that their testimony was not biased, prejudiced or influenced in any manner whatsoever and is entitled to the highest credibility.

Two men employed as guards testified as to various acts and statements which were of an unnatural and abnormal nature done and made by the petitioner.

To this testimony there is opposed only the testimony of the petitioner that he is now sane and always has been sane and that his commitment is the result of a frame-up.

The court has also had read to it a compilation of letters and postal cards which were written and addressed by the petitioner, the nature and contents of which corroborate the opinion of the doctors or alienists and justify the conclusiveness of our opinion th..t the petitioner is now insane and that his release and being at large would be dangerous to the community in general, to certain individuals in particular, and to himself.

Where the verdict and judgment upon which the pommitment is based are defective the court has the power to refuse to discharge the person until a reasonable opportunity is given the authorities to file a new complaint against the petitioner. An absolute discharge may be denied on a habeas corpus brought to obtain the discharge of an inmate of an insane asylum if it appears that he is still insane.

Even though the petitioner is entitled to be discharged from the particular restraint under which he is held, the court should not admit him to absolute freedom if it appears that he has committed a criminal offense or that for any other reason he should be detained, but he should be placed in the custody of the proper authorities in order that appropriate proceedings against him may be taken. 25 American Jurisprudence, 249, 250, Habeas Corpus, Section 153.

It is a settled rule that a writ of habeas corpus lies to determine the validity of the detention of one who is confined because of the fact that he is an insane person, and that although the confinement of such insane person is illegal, if his going at large will be dangerous to himself or other people he will not be set at liberty under a writ of habeas corpus but will be detained to permit a legal commitment to be secured under proper proceedings. 25 American Jurisprudence, 208, Habeas Corpus, Section 84; 14 Ruling Case Law, 564, Insanity, Section 17; 12 Ruling Case Law, 1216, Habeas Corpus, Section 35.

It is therefore ordered that the petitioner be discharged from the custody of the superintendent of the Lima State Hospital but that the execution of such order be suspended until the said superintendent shall deliver the petitioner to the custody of the Probate Court of Cuyahoga County, Ohio, to be proceeded against according to law, and this delivery of the person of the petitioner shall be acknowledged with a receipt therefor by the Probate Court of Cuyahoga County, Ohio, or an officer thereof. The delivery of the person of the petitioner to the Probate Court of Cuyahoga County, Ohio, and the receipt for such delivery shall be accomplished on or before ten days after the journalizing of the order and judgment in accordance with this opinion.

Judgment> accordingly.

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


author: Matthews, J.

text:
    Braun et al., Appellants, v. The Central Trust Co., Exr. and Trustee, et al., Appellees.

      (No. 7542
    Decided May 19, 1952.)

      Messrs. DeFossett & DeFossett, for appellants.

      Messrs. Smith & Smith, for appellee The Central Trust Company.

      Messrs. Dinsmore, Shohl, Sawyer & Dinsmore, for appellee Cerise Eyre Shepard.
   Matthews, J.

Oscar F. Shepard died testate on the 26th day of May, 1950. His will, dated July 25, 1949, was admitted to probate on June 15, 1950. There are twelve dispositive and enabling items in this will, but the legal sufficiency of items five and seven alone is drawn in question in this action to obtain a construction of it. The legal effect of items five and seven are in no wise affected by the other provisions.

By items five and seven, the testator provided:

“Item 5. (a) If my wife Cerise Eyre Shepard, survives me, I give, devise, and bequeath to The Central Trust Company of Cincinnati, Ohio, and its corporate successors, property which shall be selected by my executor which at the inventory value shall be equal to one-half (1/2) of the amount obtained by deducting from the total value of my estate as shown by the inventory of my estate as approved by the Probate Court in which my estate is administered all debts, funeral and administration expenses, and the year’s allowance for the support of my widow, but without deducting any estate, succession or inheritance taxes, state or federal; this trust being herein referred to as my marital trust; and in the selection as aforesaid of the assets for said trust my executor shall select only assets which qualify for the marital deduction in the federal estate tax;

“(b) In trust, however, for the following uses and purposes: to pay to my wife during her lifetime all the income from my marital trust in as nearly quarterly installments as may be practicable, and at least annually, and also to pay her at any time and from time to time during her lifetime such part or parts of the principal of my marital trust even to the extent of all thereof as my wife may deem necessary and suitable for her comfortable support and welfare; and upon her death to dispose of the then remaining principal of any of my marital trust as my wife may appoint by her last will in favor of her estate or any other appointee or appointees. Should my wife fail to exercise the power of appointment then I direct that upon her death the then remaining principal if any of my marital trust shall be paid over share and share alike to my two daughters, Ruth S. Braun and Jane S. Lowe; should either of my daughters predecease my wife leaving issue surviving my wife, such issue shall take per stirpes the share such deceased daughter would have taken if living. As used in this paragraph of my will the term ‘income’ shall include everything which may be required to allow said marital deduction. ’ ’

“Item 7. If my wife, Cerise Eyre Shepard, survives me, I give, devise, and bequeath to The Central Trust Company of Cincinnati, Ohio, and its corporate successors, all the rest, residue and remainder of my estate, of every kind, real, personal and mixed, and wheresoever situated, of which I may die seized and possessed or of which I have the right to dispose at the time of my death, In trust upon the trusts and for the uses and purposes as hereinafter set forth. This trust is herein referred to as my residuary trust.

“From the income collected from the residuary trust property, or from the principal if it deems best, the trustee may pay any and all taxes which may be imposed upon the principal or income of the trust estate. The entire net income shall quarter-annually be paid to my wife as long as she shall live and the trust continues.

“At the death of my wife, or if she should remarry, my residuary trust shall end and the entire principal of the trust estate and accumulated income shall be paid over share and share alike to my two daughters, Ruth S. Braun and Jane S. Lowe; should either of my daughters predecease my wife leaving issue surviving my wife, such issue shall take per stirpes the share such deceased daughter would have taken if living. ’ ’

The appellants contend that these provisions cannot be given effect, for the reason that the creation of the estates would violate the rule against perpetuities, as enacted by Section 10512-8, General Code. This section is as follows:

“No interest in real or personal property shall be good unless it must vest, if at all, not later than twenty-one years after a life or lives in being at the creation of the interest. * * * It is the intention by the adoption of this section to make effective in Ohio what is generally known as the common-law rule against perpetuities. ’ ’

It is appellants’ contention that item five requires the executor to select the items of personal property which qualify for the marital deduction in the federal estate tax, that this selection constitutes a condition precedent to the vesting of the estates, that under this will at least five steps in administration, that is, complete administration of the estate by the executor, must be taken, before the selection can be made, and that there is no time prescribed by the will or the law within which this must be done, and, therefore, it cannot be said that these estates must vest, if at all, within a life or lives in being and twenty-one years thereafter.

On the other hand, the appellees contend that the will creates the estates in praesenti, that they vested immediately upon the testator’s death, that the description in the will is sufficient to identify the trust res, and that that is all that is required. They deny, therefore, that the various steps in the administration of the estate and the selection of the specific items constitute a condition precedent to the vesting of these estates.

These contentions present questions as to the title to and rights in a decedent’s personal property, and also the essential character of property required for the creation of a trust res.

Must the origin of the trust be postponed until the complete administration of this estate by the executor? Have the trustee and the beneficiaries no right or interest in these assets until the executor has made a selection and appropriated specific items to the trust fund? This will does not say so.

It is clear that the testator intended his widow to come into enjoyment of these estates at once on the ending of the administration of his estate. It is also clear that the duration of the administration could not be prolonged at the executor’s untrammeled will. There are standards to which its conduct must conform and the beneficiaries of the estate are not powerless to enforce compliance therewith. During the administration, the subject matter is in custodia legis, and as soon as this custody is released these estates will come into existence in their final form.

Let us consider for a moment the state of title to the personal assets during their custody by the personal representative. It is the generally accepted rule that the legal title to the personal property of the estate is vested in the personal representative with complete power over it for all the purposes of administration imposed by the law and the terms of the will. This title, however, is not for the personal representative’s benefit. The beneficial title rests in those for whom the estate is being administered — the creditors, the next of ldn or legatees. In 18 Ohio Jurisprudence, 48, Section 8, it is said: “Those who administer estates, viz., administrators and executors, stand in a dual capacity in several respects: They personally represent the deceased in settling his affairs and distributing his estate, as well as occupying a status as trustees for persons interested beneficially in the estate. ’ ’ And, of course, this rule is not peculiar to Ohio. In 21 American Jurisprudence, 537 el seq., Section 283, it is said: “Although title to the personal property of a decedent vests in his executor or administrator, he takes such personal property in trust for the payment of the debts of the decedent and the distribution of the remainder among his next of kin, in accordance with the provisions of the will or the law. In other words, the personal property and assets belonging to a decedent’s estate are said to be held en autre droit, and not under absolute ownership.”

Now the qualifications of the title of the personal representative mark the limits of the title of the creditor, next of kin or legatee, and the combination creates an absolute title, both legal and equitable.

But it is said that until the executor selects the specific assets and appropriates them to the purpose of creating the trust, there is no trust res and, therefore, no trust. It is urged that until there is this separation and appropriation, there is no equitable estate and as this may not take place within a life or lives in being and twenty-one years thereafter, the estates fail for remoteness. If it were admitted that these estates had their genesis only upon the selection and appropriation of specific assets, the conclusion might be admitted. We are of the opinion, however, that the trusts created bjr this will relate back to the date of the testator’s death. 21 American Jurisprudence, 490, Section 211. The legal title of both the personal representative and the equitable title of the beneficiaries in a certain sense are in abeyance until the personal representative is appointed, but upon such appointment they relate back to the date of decedent’s death. In another sense, their titles vest at once upon death, and actual distribution gives no new title. There is no intervening title. 21 American Jurisprudence, 539, Section 284. In fact, for all purposes of the law their combined titles vest immediately. There is no postponement. It logically follows that in contemplation of law the beneficiaries of these trusts were vested with the equitable title to the estates bequeathed to them, and The Central Trust Company, as executor, was holding the legal title in trust for The Central Trust Company, as trustee, from the date of the testator’s death. In other words, during the administration of this estate there are two trusts — the trust, of which the executor is trustee, and the sub-trust, of which the testamentary trustee is the trustee.

The fact that during the administration of the estate the specific property has not been appropriated to the trnst and the trnst res is equitable in no way contradicts the existence of the trust.

In 1 Scott on Trusts, 438, it is said: “A trust can be created although the parties do not know precisely what the subject of the trust is, if it can be ascertained from circumstances existing at the time of the creation of the trust. Thus a trust created by will of the residue of the testator’s estate is of course valid although the amount of the residue cannot be ascertained until the amount of his assets and of his liabilities has been determined. ” And, at page 440, the same author said: “In Bay Biscayne Co. v. Baile [73 Fla., 1120, 75 So., 860], it was held that where a person holding securities of the value of $19,400 undertook to hold in trust for another $15,000 worth of the securities, the selection of the particular securities to be made by the trustee, a valid trust was created. ’ ’ The author gives other instances in which courts have held that commingling did not prevent the creation of a trust.

Scott on Trusts discusses at great length the subject of the trust property. At page 456, he says: “Equitable interests, as well as legal interests, can be held in trust. ’ ’ And, at page 457: ‘ ‘ Similarly the beneficiary of a trust, if his interest is transferable, can create a trust of his interest, * * * In such a case also there is a trust and a sub-trust; the beneficiary of the original trust * * * holds an equitable interest under that trust, but holds it as trustee for the beneficiaries of the new trust.”

It is true that the exact nature of the trustee’s title will vary during the process of administration. In the beginning the executor has the legal title to all the assets of the estate in trust to respond to the rights of all having beneficial interests. At that point, the ultimate trustee is a trustee of an equitable title to or charge upon the entire assets for the benefit of those equitably entitled under items five and seven. Upon selection from the entire assets of specific property, the title to or charge upon the entire assets is displaced by the exclusive title to the specific property. And, of course, at that point the title of the executor in the specific property appropriated to the trust ceases. However, during all these modifications of the title the trust res remains and is identifiable.

So we reach the conclusion that this testamentary trust came into existence upon the appointment of the executor and related back to the date of the testator’s death, and that the vesting of the title of the beneficiaries was not conditional upon the selection of specific property, but vested immediately and, therefore, does not infringe the rule against perpetuities.

We have felt impelled to give our reasons for reaching the same conclusion as was reached by Judge Weber of the trial court (62 Ohio Law Abs., 127, 46 Ohio Opinions, 198, 104 N. E. [2d], 480), which we approve. Much of what we have said is implicit in his opinion.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author:
      Per Curiam.
     Matthews, J.,

text:
    Klein, Appellant, v. City of Cincinnati, Appellee.
    (No. 7498
    Decided February 18, 1952.)

      Mr. John P. Strother and Mr. Sheppard I. Klein, for appellant.

      Mr. Henry M. Bruestle, city solicitor, Mr. J. B. Grause, Jr., and Mr. William A. McClain, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County, rendered in conformity to a verdict instructed for the defendant at the close of plaintiff’s evidence.

The action was for personal injuries received by the plaintiff when he fell into a hole while attempting to cross a street in the city of Cincinnati in the nighttime.

There was substantial, if not conclusive, evidence that the plaintiff alighted from a bus, went to the southeast corner of Summit and Reading roads at about 6 p. m. and then attempted to cross to the southwest corner of such intersection. He states:

“Q. Calling your attention to February 1, 1949, did you have occasion to pass over that part of Reading road immediately opposite its intersection with Summit road? A. I passed over there every day, morning and night, going to work and at night coming from work.

“Q. I can’t hear you? A. I pass over there every day, morning and night, going to and coming from work.

“Q. Did anything happen on February 1, 1949? A. Well, when I got off the bus on February 1st at about six o’clock or 6:30, I got off the bus where I always get off, and the bus went on, and I started across the street from the southeast corner and to the southwest corner, and as I walked five or six feet I fell in a hole, and I laid there. I could not get up. Luckily, I didn’t get killed.

¿cm * *

“A. As I was crossing the road I fell in a hole.

“Q. In a hole? A. Yes, sir.

“Q. Where was that hole located; was that in Reading road or Summit road? A. On Reading road.

“Q. Was it in the west half or the east half of the road? A. It was in the east half.”

On the question of constructive notice to the city, a witness stated:

“Q. Were you familiar with the condition of Reading road at the intersection of Summit road on February 1, 1949? A. I was.

“Q. How long prior, if you were familiar with it, how long prior to that date were you familiar with it? A. December 9, 1947, until that date.

“Q. December 9, 1947, to February 1, 1949? A. Yes.

“Q. If you know, describe the condition of that intersection of Reading road immediately opposite Summit road between December 9, 1947, and February 1, 1949. A. On the west side, that is near the north bound track, the west side of Reading road, the west half, there was a number of holes there.”

Mr. Grause: ‘ ‘ The north bound track is going up to the east side of Reading road. A. I am speaking of the west side. On the west side of Reading road at that intersection there were a number of large holes, and I would say, I am not exact, but I would say perhaps six that were spaced in close proximity to each other. On the east side, the east half of Reading road at that intersection, there were also holes, at least three large holes.

“Q. Will you describe the size of those holes? A. They varied. The ones closer to the southwest part of the intersection were the worst in condition. There was one there 1 would say that was perhaps twelve to fourteen inches wide, and the depth, I would say in depth perhaps as much as eight inches, eight or nine inches deep, and then immediately to the north in that same intersection on the west side there was a hole perhaps slightly less in depth, nearly as large, and then immediately north on the west half there were a group of holes that were large in size but not quite as deep. And on the east side of Reading road where I counted about three large size holes. There was one nearly as large as the first hole I described on the west side, and there was two other large holes not quite as deep.

“Q. What means did you have of observing the condition of Reading road during that period of time from forty-seven to February 1, 1949? A. I had every means. I was driving an automobile daily.

“Q. How many times did you go in and out of there? A. A minimum of twice a day, going to the office and coming home from the office.”

It seems that the basis of the action of the trial court was that the hole into which the plaintiff fell was not described with sufficient certainty to connect it with the evidence showing constructive notice to the city.

It would seem rather that such degree of certainty would be a matter for consideration in connection with the jury’s view of the weight of the evidence.

Obviously, there was substantial evidence that plaintiff fell into one of the several holes which were in the part of the street in which substantial evidence indicated holes had remained unrepaired for a period sufficiently long to permit the jury finding that the city had constructive notice thereof.

It is only by a hypertechnical, academic approach to the evidence that the action of the trial court can be sustained. There can be no question that the plaintiff was seriously injured in the location in which he said he fell. He was immediately picked up by a bystander and taken home. Plaintiff has located the area of his fall with sufficient particularity to indicate its identity with the area in which holes had existed for a considerable time.

Whether he was guilty of contributory negligence, and the factual questions arising from the evidence as to the location of the hole into which plaintiff fell were matters for the consideration of the jury under proper instructions from the court.

The trial court committed error in instructing a verdict for the defendant. The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

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

Matthews, J.,

dissenting. The plaintiff testified that he could see when he stepped off the bus, and that he was thoroughly familiar with the condition of the street at that place. Still he stepped into a hole and was injured. No explanation whatever was given as to why he stepped into the hole or why he failed to avoid it.

It seems to me that under those circumstances, there is a failure of proof on the essential element of causal relation between the plaintiff’s injury and the alleged negligence of the defendant.


author: Wiseman, J.

text:
    Gurtler, d. b. a. W. A. Gurtler & Co., Appellant, v. Kauer, Dir., et al., Appellees.

    (No. 4677
    Decided March 5, 1952.)

      Mr. Harold P. Chapman and Mr. Rodney B. Baldwin, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Hugh E. Kirkwood, Jr., and Mr. Everett N. Krueger, Jr., for appellee.

       Reporter’s Note: Pursuant to the mandatory provisions of Section 12286, General Code, the present action should have been by the state on the relation of the party seeking the writ of mandamus. However, as Section 12223-5, General Code, requires that the style of the case shall be the same in the reviewing court as in the court of origin, the style of the instant case is so retained,

   Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County in a mandamus action in which the plaintiff asks that a writ be issued commanding the Director of Highways of the state of Ohio to execute and deliver to the Auditor of State a voucher in the sum of $14,172.75 in favor of the plaintiff and that the Auditor of State execute and deliver a warrant on the Treasurer of State in favor of the plaintiff for said amount.

At the trial it was agreed that for certain work performed there was due the plaintiff the sum of $640.80, and a peremptory writ was issued requiring payment of that amount. The trial court resolved the principal issues against the plaintiff on its claim for the larger amount.

We have been furnished a copy of the well considered and comprehensive opinion of the trial judge who considered all the aspects of the case. We are in accord with the judgment of the trial court. We would be satisfied to adopt his opinion as our own. However, the questions presented to this court merit further discussion.

The plaintiff who is engaged in the contracting business entered into a written contract with the state of Ohio, whereby plaintiff agreed to furnish labor, tools and equipment for the raising, throwing, laying, surfacing, etc., of railroad tracks, including “turnouts” taken up and installed, etc., necessitated by a railroad grade-separation project. The disputed items relate to payment under the contract for labor furnished in connection with the “turnouts.” A determination of this issue requires an interpretation of the contract, together with the plans and specifications expressly made a part of the contract.

Specifically, the question presented is whether, in computing the lineal footage of the main track in arriving at the amount of compensation due, the lineal footage of the main track through the “turnout” should be deducted. In other words, the plaintiff contends that he is entitled to compensation for the lineal footage of the main track through the turnout, and in addition thereto compensation for the turnout. The defendant contends that the “turnout” is regarded as a unit which includes the main track and that the plaintiff is to be compensated therefor on a unit basis. The contract expressly provides that for labor furnished with respect to the “turnouts” the plaintiff is to be compensated on a unit basis.

What does the unit designated as a “turnout” include? A “turnout” has been defined as a track leading from a main track. The switch, frog, and guardrails are essential parts of the turnout. The plaintiff contends that a turnout as used in the contract consists only of the departing track, whereas the defendant contends that the provision in the contract relating to installation and payment shows an intention of the parties to include the main track in the term “turnout.” Usage and custom can be resorted to in order to explain but never to vary or contradict the term of a contract. 12 American Jurisprudence, 764, Section 237. The intent of the parties controls in the interpretation of the contract and the intention must be gathered from the language employed. Blosser v. Enderlin, 113 Ohio St., 121, 148 N. E., 393; State, ex rel. Maher, Pros. Atty., v. Baker, 88 Ohio St., 165, 172, 102 N. E., 732; National City Bank of Cleveland v. Citizens Building Co. of Cleveland, 48 Ohio Law Abs., 325, 334; 9 Ohio Jurisprudence, 393, Section 170.

Several paragraphs of the contract require interpretation. Section 27, paragraph 3, provides that in computing lineal feet of track taken up or laid, etc., measurement is taken along the center line. of the track, “from which deductions shall be made for turnouts, based on the actual distance from point of switch to heels of frog.” In Section 27, paragraph 4, it is provided that the unit prices named in the contract for raising or throwing track shall include all expense of handling material, etc., and the lineal feet of track raised or thrown shall be determined by actual measurement as noted above, “except that for turnouts payment shall be based on twice the track feet from point of switch to heel of frog.” It will be noted that no mention is made in either of the two paragraphs of main track as distinguished from departing track. In paragraph 4 recognition is given to the additional work required in raising or throwing a turnout in the method of payment prescribed. Section 27, paragraph 5, provides: ‘ ‘ The lump sum prices named in the contract for taking up and laying the various turnouts shall include all expense of skeletonizing, placing switch timber, frog, switch, switch stand, guardrails, ballast, and other materials necessary to complete the item ready for use, including changes to existing track and furnishing the necessary equipment. ’ ’ (Emphasis ours.) Thus, the lump sum prices include everything necessary to be done “to complete the item ready for use.” The turnout would not be ready for use unless both main and departing tracks were installed. All these provisions indicate an intention to consider the turnout as a separate unit, and that a turnout embraces that part of the main track which extends between the point of switch and heel of frog, in determining the amount of compensation due. If any doubt remains it is dispelled by a consideration of the plans and specifications, and Section 22 of the contract which provides: “Turnouts. All turnouts shall be assembled and installed by the contractor according to the New York Central System standards. Where plans indicate turnouts are to be installed in existing tracks, the railroad inspectors will determine and direct the contractor whether to install the turnouts in place or construct them on the outside and place them with cranes.” If the New York Central System standards and the plans and specifications include the main track in the turnout, effect must be given to such provisions, regardless of any usage to the contrary. The designing engineer for the New York Central System, Mr. Whitehead, testified that a turnout consists of not only the departing track, but also the main track and the component parts essential to its use; and that the New York Central System standards with respect thereto are different from standards of other railroad systems. In specification No. 2, the plaintiff agreed to furnish labor, etc., in accordance with the following plans — Here appear a number of paragraphs, among which is paragraph “G, ” which provides as follows: “No. 10. Turnout and crossover, Plan No. E C E — 10.” Plan No. E C E — 10, was introduced in evidence as plaintiff’s exhibit D, which is a blue print of No. 10 turnout. The main track is shown to be an integral part of the turnout. This interpretation is supported by the last sentence in Section 22 quoted above, which provides that the turnout may be installed in place or constructed on the outside and placed with cranes. The evidence shows that when the turnout is assembled alongside the track and when ready for installation, the entire turnout is moved into place by using cranes. When thus installed the main track and the departing track and other essential parts are assembled as one unit. The plaintiff testified that he installed several turnouts in this manner. The same price is paid for this type of installation as when the turnout is installed in place. Under this provision of the contract, a turnout clearly consists of the main track and the departing track, together, with other component parts essential to its use as one unit, and the work done is compensated for as one unit.

A consideration of the provisions of the contract, together with the plans and specifications, leads this court to conclude, as did the trial court, that the intention of the parties has been definitely expressed in the contract to the effect that a turnout consists of a unit which embraces the departing track and the main track, and under the terms of the contract the turnouts are paid for as a unit. In computing compensation for work done on the main track, that portion of the main track which extends from point of switch to heel of frog is deducted from the lineal footage of the main track in accordance with the terms of the contract.

Judgment affirmed.

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


author: Guernsey, J.

text:
    The State of Ohio, Appellee, v. Steele, Appellant.
    (No. 162
    Decided April 16, 1952.)

      Mr. Reeder C. Hutchinson, for appellee.

      Mr. Edwin 8. Diehl, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Defiance County, Ohio, affirming a judgment of conviction and sentence rendered by the Honorable G. J. P. Louys, a justice of the peace in and for Defiance township, Defiance county, Ohio.

In said justice court the appellant, Prank Steele, was charged with unlawfully operating a motor vehicle in and upon a certain street of the city of Defiance, Ohio, while the said Prank Steele was under the influence of alcohol and in actual physical control of said motor vehicle. He was found guilty as charged and sentenced to pay a fine of $100 and the costs of the proceeding in justice court amounting to $217. This is the judgment from which an appeal was taken to the Common Pleas Court of Defiance County and which was affirmed by that court.

The judgment of the Common Pleas Court, affirming the judgment of the justice court, from which the appeal is taken to this court is in the words and figures following, to wit:

‘ ‘ This cause came on for hearing upon the transcript and original papers of the justice of the peace court of G. J. P. Louys, the assignment of errors, the bill of exceptions and the briefs of the appellant-plaintiff in error and the appellee-defendant in error and was argued by counsel. On consideration whereof the court finds that the bill of exceptions was filed herein on December 1, 1951, and not within the time required by law. Therefore the court does not consider any assignment of error with reference to the amount of evidence or the weight and sufficiency thereof.

“The court finds there is no error apparent upon the record to the prejudice of the plaintiff in error-appellant.

“It is therefore considered by the court that the judgment of the justice court be and the same is hereby affirmed and that the defendant in error-appellee recover its costs herein expended. It is further ordered that a mandate be sent to the court of justice of the peace G. J. P. Louys to carry this judgment into execution. Exceptions saved.

“Counsel for plaintiff in error-appellant having-indicated an appeal from the judgment of this court, bond is herewith set at $500. ’ ’

Upon his appeal from the Common Pleas Court to this court the appellant assigns error in the following particulars:

“1. The court erred in denying defendant-appellant ’s motion to dismiss the affidavit herein at the conclusion of the testimony of sgt. S. E. Grant on December 8, 1950, the witness testifying as having no positive knowledge of the facts stated in the affidavit; and erred in denying defendant-appellant’s motion to dismiss said affidavit at the conclusion of said trial for the reason that said sgt. S. E. Grant had no knowledge of the facts stated therein and did not see the alleged offense committed by the defendant-appellant to which rulings of the court the defendant-appellant excepted.

2. The court erred in refusing to dismiss the complaint against the defendant-appellant for the reason there was insufficient evidence of the defendant-appellant’s guilt of the offense charged in said affidavit.

“3. The court erred in finding the defendant-appellant guilty of the offense set forth in said affidavit.

“4. That the judgment of the court in finding defendant-appellant guilty of said offense is not sustained by the evidence.

“5. That the Court of Common Pleas erred in dismissing defendant-appellant’s petition in error on the grounds that the decision and order of the justice of the peace was not a final order.

“6. That the Court of Common Pleas erred in refusing to consider the sufficiency of the evidence on the grounds that the bill of exceptions was not filed in proper time as provided by law.

“7. The court erred in admitting evidence on behalf of the state of Ohio, over the objection of the defendant-appellant to which ruling of the court the defendant-appellant at the time excepted.

“8. The court erred in sustaining objections to testimony offered in behalf of the defendant-appellant to which ruling of the court the defendant-appellant excepted.

“9. All other errors manifest from the face of the record, the transcript and the bill of exceptions, to which rulings of the court the defendant-appellant excepted and which errors were prejudicial to the defendant. ’ ’

It will be noted that all the errors assigned except specifications of error numbered 5, 6 and 9, are of such character that they may be exemplified only through resort to a bill of exceptions.

The record discloses that in addition to the appeal from the justice court to the Common Pleas Court wherein the judgment of conviction and sentence of the justice court was affirmed by the Common Pleas Court, appellant had previously filed an appeal from an order of the justice court overruling a motion to dismiss the affidavit against the appellant upon the ground “that the offense charged therein is a misdemeanor and the facts alleged in said affidavit, constituting said offense, were not committed in the presence of said affiant or has he any positive knowledge concerning said facts as are alleged and sworn to in said affidavit.”

It is further disclosed by the record that this appeal was dismissed by the Common Pleas Court for the failure of the appellant to comply with and conform to the requirements of law with reference to the perfecting of the appeal and not upon the ground that the order appealed from was not a final order.

An inspection of the judgment of the Common Pleas Court from which the appeal, now under consideration was taken discloses that the appeal from the judgment and sentence of the justice court was not dismissed upon the ground that the judgment appealed from was not a final order.

Assignment of error number 5 is therefore without basis or merit.

The record discloses that the assignments of error on the appeal from the judgment of conviction and sentence to the Common Pleas Court are substantially the same as the assignments of error upon the appeal from the judgment of the Common Pleas Court affirming the judgment of the justice court except that none of said assignments correspond with assignments numbers 5 and 6 upon the appeal from the Common Pleas Court to this court and that none of said assignments, except the one corresponding to assignment number 9 on the appeal to this court, can be exemplified without resort to a bill of exceptions, and that assignment number 9 may be exemplified either by resort to a bill of exceptions or by resort to the record exclusive of a bill of exceptions, or both.

Consequently, if the court erred in not considering the bill of exceptions, as charged in assignment of error number 6, such error was prejudicial to the appellant as practically all the errors complained of could be reviewed only through a consideration of a bill of exceptions, and such error, if it existed, would require the reversal of the judgment.

As shown by the judgment entry of the Common Pleas Court, the court based its refusal to consider the bill of exceptions upon the ground that the bill of exceptions was filed “on December 1, 1951, and not within the time required by law. ’ ’

The record shows that the judgment and sentence of the justice court was rendered and entered on the docket of said justice court on October 22, 1951.

Thus a period of forty days elapsed between the rendition and entry of the judgment appealed from and the filing of said bill of exceptions in the Common Pleas Court.

Whether this lapse of time precluded the Common Pleas Court from considering the bill of exceptions is dependent upon whether Section 13445-1 of the General Code relating generally to bills of exceptions in criminal cases is applicable to bills of exceptions in criminal cases in justice courts or whether bills of exceptions in criminal cases in justice courts are governed by the provisions of Sections 10359,10360,10361 and 10362 of the General Code relating specifically to bills of exceptions in justice courts which latter sections were enacted prior to the enactment of Section 13445-1.

The sections of the General Code mentioned are in the words and figures following, to wit:

“Section 13445-1. [Time of filing such bill.] If a defendant feels himself aggrieved by a decision of the court, he may present his bill of exceptions or objections thereto which the court shall sign, and it shall be made a part of the record and shall have like force and effect as in civil actions. If exceptions be taken to the decision of the court overruling a motion for a new trial because the verdict is not sustained by sufficient evidence or is contrary to law, such bill must contain all of the evidence; but if the exceptions be to other ground than that the evidence is not sufficient or is contrary to law, the bill of exceptions need not contain all the evidence, but only so much thereof as may be necessary to properly present the alleged errors ; provided in the latter case that the Court of Appeals or Supreme Court shall have authority to order a full transcript of the evidence if it deems the same necessary to a proper consideration of the case. The court shall fix the time within which such bill of exceptions or objections, shall be filed, which, in no case, shall be more than thirty days from the overruling of the motion for a new trial.”

“Section 10359. [Bill of Exceptions.] In all cases before a justice of the peace, mayor or police judge, whether tried by jury or the justice, mayor or police judge, either party shall have the right to except to the decisions of the justice, mayor or police judge, upon any matters of law arising in the case.

“Section 10360. [Exceptions, when to be presented.] The party objecting to the decision must except at the time it is made and shall have ten days from the date of overruling the motion for a new trial, if such motion be made, or from the date on which the decision, judgment or sentence of the justice, mayor or police judge is entered to reduce his exceptions to writing and present them to the said court.

“Section 10361. [Grounds of objection in entry.] .If the decision objected to is entered on the record and the grounds of the objection appear in the entry, the exception may be taken by the party causing to be noted at the end thereof that he excepts. But when the decision is not entered on the record or the grounds of the objection do not sufficiently appear in the entry, or exception is to the decision of the court on a motion to direct a non-suit or to arrest the testimony from the jury, or for a new trial because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce this exception to writing, and present it to the trial justice, mayor or police judge, or his successor, within the time above limited.

“Section 10362. [Incorrect bill.] If such bill of exceptions be not correct he shall make the necessary corrections therein within three days after it is so presented, and when correct must sign and file it with the papers in the case, note such signing and filing in his docket, and transmit the bill with the transcript of his docket and original papers, within ten days of the date of such signing, to the clerk of the Court of Common Pleas, who must file and enter it upon his trial docket as in other eases. ’ ’

The Supreme Court has decided that the last four sections of the General Code mentioned apply to criminal as'well as civil cases. State v. Ransick, 62 Ohio St., 283, 56 N. E., 1024.

Although we have made diligent search we have not found any reported cases directly holding that the last four General Code sections mentioned govern bills of exceptions in criminal cases in justice courts to the exclusion of Section 13445-1 of the General Code, but we have found a decision by the Supreme Court of Ohio in which the reasoning is such that we are forced to the conclusion that bills of exceptions in criminal cases in justice courts are governed by said sections to the exclusion of Section 13445-1 of the General Code.

The decision we refer to is in the case of Henrich v. Hoffman, Judge, 148 Ohio St., 23, 72 N. E. (2d), 458. The question involved in that case was whether a section of the General Code incorporated in the act creating the Municipal Court of Massillon relating to the filing of bills of exceptions in said court in criminal cases, adopted prior to the enactment of Section 13445-1, governed the filing of such bills of exceptions to the exclusion of Section 13445-1 of the General Code.

That question was decided in the affirmative by the Supreme Court.

The reasoning upon which said decision is based appears in the opinion on pages 26 and 27 of volume 148 of the official Ohio State reports and is embodied in paragraphs 2, 3 and 4 of the headnotes in 72 N. E. (2d), 458, which read as follows:

“2. Repeals of statutes by implication are not favored by law, especially where the statutes involved are a special and a general statute.

“3. Where a general statute, covering same field as an earlier special statute, is enacted, the special statute is ordinarily an exception to general statute, and only where terms of the two statutes are irreconcilable or where legislative intent is clear that repeal was intended, does the later general statute repeal the earlier special statute.

“4. General statute allowing 30 days after overruling of motion for new trial for presentation of bills of exception for signature, does not repeal by- implication special'statute requiring that bill of exceptions shall be filed with clerk of Municipal Court of Massillon within 20 days after rendition of judgment. General Code Sections 1579-440a, 13445-1.”

It will be noted that the General Code sections last mentioned, among other things, prescribe that the party objecting shall have ten days from the date on which the decision, judgment or sentence of the justice is entered to reduce his exceptions to writing and present them to said court; that, thereafter, if the bill of exceptions is incorrect, the justice shall make the necessary corrections therein within three days after it is so presented, and when correct the justice must sign it and transmit it within ten days of the date of such signing to the clerk of the Court of Common Pleas, who must file and enter it upon the trial docket as in other cases.

Under these provisions it is the duty of the justice to correct the bill within three days after it is presented to him and when correct to sign same and it is his ministerial duty to transmit the same to the clerk of the Court of Common Pleas within ten days of the date of such signing. No duty devolves upon the ex-ceptor to see that the bill of exceptions is corrected within the period mentioned or that it is filed with the papers in the case or that the filing thereof is noted upon the docket of the justice or that said bill is transmitted to the clerk of the Common Pleas Court within the period prescribed.

In the instant case the certificate of the justice of the peace at the end of the bill of exceptions is in substantially the proper form except that it is not dated and the blanks in the certificate are not filled out, so that the certificate does not disclose the number of days after judgment or sentence within which the bill was presented to said court; nor does it show the date upon which the bill of exceptions was received by said court, or the date of allowance thereof.

The signing and filing of the bill of exceptions is not noted on the docket of the justice.

It does not appear either from the bill of exceptions or from the record of the case in justice court that the justice has demanded his fees for the bill of exceptions and that they were not paid.

The rule that when any judicial or official act is shown, to have been done in a manner substantially regular it will be presumed that formal requisites for its validity were complied with, applies to the action of the trial judge in the allowance and signing of a bill of exceptions and to its further action in ordering the same to be made part of the record. Hence, where a bill of exceptions appears in the record allowed and signed by the trial judge, the presumption is that there was due compliance with all the formalities required by the statute, such as submission in proper time to the trial judge. 2 Ohio Jurisprudence, 1058, Appellate Review, Section 588.

See, also, State v. Wirick, 81 Ohio St., 343, 90 N. E., 937.

At a time when the statutes prescribed a period of six months after entry of judgment in a criminal case in which a petition in error might be filed it was held in the case of Bosodi v. State, 13 C. C., 275, 7 C. D., 31, which involved the interpretation and construction of Section 6565, Revised Statutes (now Section 10362, General Code), that:

“It is the duty, by law, of the justice of peace to transmit a bill of exceptions when by him allowed, within ten days with the papers of the case to the clerk of common pleas, but if he fails to do so, unless he has demanded his fees therefor and they are not paid, the person taking the bill is not prejudiced, by such failure, but may within the six months allowed for filing petition in error, do so, and with it file the bill of exceptions and other papers.”

Applying the presumption mentioned, which we find to be a correct statement of the law, to the facts in connection with the bill of exceptions in the instant case, the record not showing anything to the contrary, we find the bill of exceptions was presented to the justice within the time limited by Section 10360, General Code, and was corrected and signed by the .justice within the time limited by Section 10362, General Code, and that the delay in transmitting the same to and filing the same in the Common Pleas Court was occasioned by the failure of the justice in performing his ministerial duty in transmitting same to the clerk of the Common Pleas Court within the period prescribed by Section 10362, General Code.

Under the decision last above referred to, which we approve as a correct statement of law, it was the duty of the justice of the peace to transmit the bill of exceptions, when by him allowed, within ten days to the clerk of Common Pleas Court and his failure to do so, it not appearing that he demanded his fees therefor and the same were not paid, the appellant, who took the bill was not prejudiced, by such failure and the bill should have been considered by the Common Pleas Court in ruling upon the assignments of error that were of such character they could be exemplified only by resort to the bill of exceptions.

Assignment of error number 6 is therefore well taken.

The Common Pleas Court erred in not considering such bill for the purpose and in the respect mentioned and this error requires the reversal of the judgment of the Common Pleas Court.

Assignment of error number 9 is not argued in appellant’s brief and the court, in the exercise of its statutory prerogative conferred by Section 12223-21 of the General Code, will not consider» it.

A separate bill of exceptions of the proceedings had by the justice court upon the motion to dismiss the affidavit filed in justice court charging the offense of which the appellant was thereafter found guilty, filed in the Common Pleas Court on December 23, 1950, in connection with the appeal from the order of justice court overruling said motion, which appeal was thereafter dismissed by the Common Pleas Court as herein-before mentioned, was refiled in the Common Pleas Court on November 7, 1951, the appellant apparently intending that it should be considered upon the appeal from the judgment and sentence of conviction.

However, in the bill of exceptions taken upon the trial of the cause hereinbefore mentioned, said separate bill of exceptions taken upon the motion to dismiss the affidavit is riot mentioned, referred to, or incorporated by reference or otherwise, and therefore may not be considered upon the appeal from justice court to Common Pleas Court or upon the appeal from Common Pleas Court to this court.

For the error of the Common Pleas Court in not considering the bill of exceptions herein filed in said Court on December 1, 1951, the judgment of the Common Pleas Court is reversed at the costs of the appellee, and the cause is remanded to it for a new trial with instructions to consider the bill of exceptions in connection with a consideration of such of the errors assigned as may be exemplified thereby.

Judgment reversed.

Middleton, P. J., and Ahl, J., concur.


text:
    Hill, Appellee, v. Irons et al., Appellants.
    (No. 216
    Decided June 12, 1952.)

      Mr. C. Donald Dilatush and Mr. Cedric E. Stanley, for appellee.

      Mr. Robert J. Stoecklein, for appellants.
   Matthews, J.

This is an appeal on questions of law and fact.

In her amended petition, the plaintiff alleged that on or about the 3rd day of February, 1925, she was the owner of certain described real estate located in the village of Lebanon, Ohio; that on that date she entered into the following contract with the defendants, to wit:

“This agreement entered into this third day of February, A. D., 1925, by and between Carrie B. Williams party of the first part, and Elbert W. Irons and May A. Irons, parties of the second part,

“Witnesseth: That whereas the party of the first part has this day conveyed by deed to the parties of the second part, certain real estate located in Lebanon, Warren county, Ohio, said real estate being more particularly described in said deed, to which reference hereby made, and whereas the parties of the second part are sureties for the party of the first part and her husband, D. W. Williams, on a renewal note calling for the sum of $7,879.90, with interest, payable to The Citizens National Bank & Trust Co. of Lebanon, Ohio, and, whereas it is the purpose and intention of the party of the first part to secure and save harmless said parties of the second part from any loss by reason of said surety obligation.

“Now be it therefore agreed that if after the payment of the mortgage claim of the Peoples Building & Loan & Savings Co., of Lebanon, Ohio, with interest, the payment of the obligations or claims, with interest, on which the parties of the second part are sureties and the payment of all costs and expenses which the parties of the second part may incur by reason of the ownership of said property, there remain any balance or net profit, same shall be paid to the party of the first part.

“It is further agreed that if the party of the first part pay or cause to be paid the indebtedness above referred to at any time before parties of the second part dispose of said property, parties of the second part agree to reconvey said property to the party of the first part.

“This contract to be binding on parties hereto, their heirs, executors and administrators.”

The plaintiff alleged also that as set forth in such contract she conveyed the described real estate to the defendants, in trust and subject to all the terms, provisions and conditions set forth in such contract.

The plaintiff alleged also that the defendants thereupon entered into possession of said real estate and have ever since been and are now in possession thereof, and have received the entire benefit and income therefrom, and then set forth the amount of cash income therefrom for a part of the period; that the total amounted to $27,815; and that all the incumbrances on the real estate had been paid and the obligations referred to in said agreement had been discharged.

The plaintiff alleged also that the defendants had not conveyed or offered to convey the title to said real estate back to her or paid or accounted to her for any of the income therefrom.

The plaintiff prayed that defendants' be declared trustees and decreed to convey the title to said real estate to her and for an accounting.

By answer, the defendants set forth a detailed history of the circumstances culminating in 1925 with their being bound as sureties for the plaintiff and her husband for $7,879.90, with no indemnity against ultimate loss, excepting a mortgage on the real estate, which is the subject matter of this action, second to a first mortgage for $4,800, and that the real estate was not worth more than $7,000 at the time. They alleged that plaintiff and her husband jointly owed this amount, for which the defendants were sureties, and had paid substantially nothing on either debt for years, and that the bank to which the debt of $7,879.90 was owing was insisting upon payment, and that as a result and in order to avoid the expense of foreclosure and to meet the demands of the bank, this real estate was conveyed to them.

The defendants also alleged that at and prior to the time this deed was executed and delivered to them there were pending negotiations by plaintiff and her husband for the sale of this property, but that the bank refused to wait until said negotiations were concluded, and that the agreement referred to by plaintiff related to those negotiations, that part of the agreement was in writing and part was oral, that the ‘ ‘ written portion of this agreement was wholly contingent upon a sale being consummated” to the prospective purchaser (an oil company), and that the plaintiff and her husband would relieve the defendants of their obligation as sureties not later than 90 days after February 3, 1925, or as soou as the property was sold to the prospective purchaser, with whom negotiations were pending, and that the written portion of said agreement was to have no force or validity unless said property was sold to said purchaser.

The defendants also alleged that the plaintiff and her husband agreed to relieve the defendants of their liability as sureties within 90 days of February 3,1925.

The defendants also alleged that the negotiations for the sale were abandoned, that the' plaintiff and her husband did not relieve the defendants of their liability as sureties, and, on the contrary, the defendants were required to, and did from income from this property and from their own funds pay all the liens against said property, and that they had managed, controlled, operated, leased, and possessed said property as their own from February 3, 1925, forward.

We take it that the foregoing constitutes an explanatory denial of the contract as alleged by the plaintiff.

In addition, the defendants pleaded the failure of the plaintiff to institute an action for 22 years and her failure to pay them or relieve them of their liability as sureties, that- records had become lost, an accounting difficult or impossible, and charged that the plaintiff had been guilty of laches.

As a third defense, the defendants pleaded the statute of limitations.

The plaintiff by reply denied that she was a principal debtor and alleged to the contrary that she was a surety for the debt of her husband just as the defendants were. The plaintiff denied much of the history of the relations between the parties culminating in the situation that existed on February 3, 1925, and denied all allegations of any agreement other than the written one, and denied the existence of any condition to the taking effect of the agreement.

The reply also placed in issue the defense of laches and the statute of limitations.

(1) There was no competent evidence of the existence of any agreement other than that evidenced by the writing pleaded by the plaintiff. On objection, oral testimony of conversations between the parties at the time the written contract was signed was excluded, and thereupon the defendant made the following proffer:

“That Mrs. Hill and her attorney, in the presence of Mr. Irons and Mrs. Irons told them that they had been negotiating with an oil company for the sale of this property — they believed that it could be sold. That Mrs. Hill wanted this written agreement that in the event the property could be sold to the oil company and was sold that everything over and above the indebtedness was to be paid back to her.

“Further that if Mr. Irons were permitted to testify that he was led to believe by Mrs. Hill and her attorney that this sale would take place within a very short period of time, to wit: not to exceed several months from Feb. 3,1925, and that it is the reason for which he and his wife signed this agreement — that they had not anticipated and were not told that this was to go on for twenty-five years but were informed that they would be relieved of their obligations and these debts they had taken on as soon as the property could be sold. ’ ’

We think it clear that this proffer would not prove a condition precedent to the taking effect of the written agreement, but would, if believed, prove a totally different contract. The written contract recites that the plaintiff and her husband had that day conveyed the real estate to the defendants — and it is undisputed that that recital was true — and that the written agreement was entered into to set forth the purpose and terms under which the conveyance was made. It is impossible for us to perceive any circumstances that would suspend the binding effect of some contract in view of the conveyance. The title of necessity had to be held either according to the terms of the writing or under some other terms. It is a classic situation for the application of the ‘ ‘ parol evidence ’ ’ rule, excluding all prior and contemporaneous oral testimony to alter, add to, or take from the terms of the written memorial executed by the parties.

We find that the rights of the parties must be determined by the legal effect of the deed and the written agreement of the parties.

(2) Now what was the relation between these parties created by this deed and contract? We have no doubt that by accepting the legal title under the terms of that contract the defendants became trustees of a continuing and subsisting trust charged with all the obligations imposed by the agreement enforceable under the principles and practices of equity, and as those terms are used in Section 11236, General Code.

Most of the questions presented in this case were involved in Homer v. Wullenweber, 89 Ohio App., 255, 101 N. E. (2d), 229, recently decided by this court. As indicating our present view, we quote the syllabus to that case:

‘ ‘ 1. A trust may be engrafted upon a deed absolute by a contemporaneous oral agreement or declaration.

“2. A trust created intentionally by the settlor is an express or direct trust as distinguished from a trust created by operation of law.

“3. The purpose of a trust is sufficiently declared, where it appears that it is for the use and benefit of a specified person.

“4. Where the settlor creates a trust without imposing any specific duties upon the trustee, his duties are fixed by equitable rules. All trustees owe the duty of loyalty, to not delegate personal duties, to keep and render accounts, to give the cestui que trust information upon request, to permit inspection of trust records and property, to not commingle trust property, to make the trust res productive, and to pay over the income to the cestui que trust.

“5. An express direct trust, until the trustee renounces it to the knowledge of the cestui que trust, is a continuing and subsisting trust within the purview of Section 11236, General Code, and the statute of limitations does not apply to it.

“6. To start a statute of limitations running in favor of a trustee of an express trust, it is essential for the trustee to show a plain, strong, and unequivocal renunciation. ’ ’

There was no evidence of a “plain, strong, and unequivocal renunciation” of this trust that would start the running of the statute of limitations.

(3) Upon the subject of laches, it is said in 16 Ohio Jurisprudence, 265, that “in short, the statutes govern the effect of mere delay in suing for equitable relief the same as they govern the effect of delay in bringing any other action. The interpretation and application of the Ohio statutes of limitation to the various kinds of equitable actions are fully treated elsewhere.”

In the absence of some inequitable circumstance, the statutory period of limitation furnishes the only standard of diligence. We find no circumstance in the evidence in this case that would cause a court to deny relief based on the defense of laches.

Our conclusion is that the plaintiff is entitled to the relief for which she has prayed, and the court finds that the defendants are trustees of the legal title, and should be decreed to convey that title by special warranty deed against any incumbrance or conveyance by them, and account to plaintiff for the rents and profits.

We have examined the report of the master commissioner and the findings of the trial court on the subject of the accounting and the allowance to the defendants for their services. A similar finding will be made by this court, made, however, to include the rents and profits and allowance for services to the date of the decree of this court.,

Judgment accordingly.

Hildebrant, P. J., and Matthews, J., concur.