author: Fess, J.

text:
    Hoover, Appellant, v. Hoover, Admr., Appellee. (Two cases.)

      (Nos. 755 and 756
    Decided November 20, 1950.)

      Mr. W. J. Mead, for appellant.

      Messrs. Iieddin <& Beddin, for appellee.
   Fess, J.

Cause No. 755 is an appeal on questions of law from an order of the Probate Court finding that, due to certain errors of the appraisers, the estate of R. D. Hoover should be reappraised and an amended inventory and appraisement filed, to include, among other items, five certificates of deposit totalling $5,950, with accrued interest, which were owned by the decedent and his wife, Selusta Hoover, “and upon the death of said Russell D. Hoover, became the property of Selusta Hoover.”

The order further recites:

“* * * that on the 10th day of * * * [March], 1950, said Selusta Hoover, being then sound and competent in mind and not under duress, endorsed all of said certificates of deposit and delivered them to Arthur Hoover as administrator of the estate of Russell D. Hoover, deceased, and instructed him to include them in the assets of said estate. That said Arthur Hoover as such administrator thereupon deposited said certificates of deposit in the Wayne branch of the Cygnet Savings Bank Company, in his administrator’s account. That the proceeds of said certificates of deposit should be included in the amended inventory. ’ ’

Cause No. 756 is an appeal on questions of law from an order overruling exceptions to the amended inventory and appraisement and confirming it. Upon the filing of the amended inventory appellant filed her exceptions thereto, setting forth that the certificates of deposit included therein did not belong to the estate but belonged to the exceptor as survivor of the decedent free from claim by the estate; that her'endorsement, if any, was placed thereon without her knowledge and particularly without any knowledge of the legal effect thereof or any intent to make a gift to the estate; and that such endorsement was obtained by the administrator through fraud when appellant was ill and when she was in such a mental condition that her signature was not her free and voluntary act.

In her exceptions, appellant prays that the certificates be found to be her property, that they be excluded from the inventory as assets of the estate, and that the administrator be ordered to pay her the amount of money received therefor.

In overruling the exceptions, the court found as recited in the entry in cause No. 755, and that the proceeds of the certificates were properly and legally included in the amended inventory and appraisement. The court confirmed the amended inventory and appraisement.

The two appeals were originally filed on questions of law and fact, but on motion the appeals on questions of law and fact were dismissed and the causes retained as appeals on questions of law, upon authority of In re Estate of Chipman, 13 Ohio App., 186, 32 C. C. (N. S.), 29; In re Estate of Turpen, 26 Ohio Law Abs., 587; In re Estate of Shafer, 77 Ohio App., 105, 65 N. E. (2d), 902. Our action in this regard may have been premature and possibly erroneous for the reason that an examination of the records discloses that the exceptor below sought equitable relief which, under the decision of the Supreme Court in Meyer v. Meyer, 153 Ohio St., 108, 91 N. E. (2d), 892, would present an issue appeal-able on questions of law and fact. However, the conclusion reached upon the appeals makes it unnecessary to reinstate them as appeals on questions of law and fact.

The trial court properly found that upon the death of the decedent appellant became the absolute owner of the five certificates of deposit concerning which the controversy arises. Sage, Exr., v. Flueck, 132 Ohio St., 377, 7 N. E. (2d), 802. The evidence discloses that, with the permission of the appellant, these certificates came into the possession of the administrator a few days after the decedent’s death.

Russell D. Hoover died intestate February 25, 1950. He left surviving his 76-year-old widow, Selusta Hoover, his son, Arthur, and his daughter, Alice, by a former marriage. On March 1, Mrs. Hoover was taken in an ambulance to a hospital in Fremont, where she was confined with pneumonia and remained until March 25. On March 7, 1950, at the request of Arthur Hoover, she signed a waiver of notice of the making, filing, and hearing of inventory and consented to the approval thereof. Arthur Hoover testified that on March 10, 1950, Selusta Hoover endorsed the five certificates of deposit and told him that “dad had left his last wish that everything be divided up one third and that was the way she wanted it.” Mrs. Hoover denies any recollection of having endorsed the certificates.

After securing his stepmother’s endorsement on the certificates, Arthur Hoover endorsed them as administrator, cashed them, and deposited the proceeds in his account as administrator.

Although Mrs. Hoover was quite ill when admitted to the hospital, she sufficiently recovered by the 7th of March to receive visitors. There is the usual conflict of testimony with respect to her physical and mental condition when she signed the certificates on March 10th.

Transactions between infirm persons and those with greater intelligence and better condition of health impose upon the latter a higher responsibility than exists between normal persons. Such transactions are viewed with suspicion. The evidence in the instant case fails to reveal any necessity for the haste exhibited by the administrator in securing his stepmother’s signature to the certificates. To support a gift inter vivos, clear and convincing evidence is required. Bolles v. Toledo Trust Co., Exr., 132 Ohio St., 21, 4 N. E. (2d), 917. In view of her age, her recent bereavement, and serious illness, this court is unanimously of the opinion that the finding that Selusta Hoover made a gift of the certificates to the estate is manifestly against the weight of the'evidence.

But there is another ground upon which the judgment must be reversed. The Probate Court found, and the evidence discloses, that the certificates became the property of Selusta Hoover upon R. D. Hoover’s death. As such, they have no place in the inventory as assets of the decedent’s estate. Title to all personal property belonging to a decedent vests in his administrator upon acceptance of the trust, as of the date of death. Brewster v. Gage, Collector of Internal Revenue, 280 U. S., 327, 74 L. Ed., 457, 50 S. Ct., 115. But it is axiomatic that an administrator has no right to any property except that held or owned by the decedent at the time of his death. The Probate Code recognizes this by frequently referring to property of the deceased. See Sections 10509-41, 10509-51, 10509-52, 10509-53, and 10509-57, General Code.

Section 10509-172, General Code, charges the administrator with all goods, chattels, rights, and credits of the deceased which come into his hands, and are by law to be administered although not included in the inventory; also with all the proceeds of property sold for the payment of debts and all the interest, profit, and income that in any way comes into his hands from the personal estate of the deceased. Nowhere is any authority given an administrator to administer or as administrator to receive property of heirs or next of kin. Occasionally an administrator receives money or property from an heir or next of kin to pay debts and thereby avoid the necessity of a land sale proceeding for such purpose. Such procedure is proper and approved practice, but even in such case the advancement has no place in the inventory and appraisement. The administrator charges himself with the advancement in his account in the same manner as after-acquired assets, such, as interest’and dividends received on securities listed in the inventory.

Having found that the certificates of deposit in question were the property of the widow, the orders of the court including them in the inventory were contrary to law. They should have been excluded from the inventory without prejudice to the respective rights of Seiusta Hoover and Arthur Hoover.

Should the Probate Court have directed the return of the property to the exceptor? This presents the question as to whether the Probate Court is invested with jurisdiction to determine title to property on exceptions to an inventory and appraisal. Brown v. Southern Ohio Savings Bank & Trust Co. (1926), 22 Ohio App., 324, 153 N. E., 864, holds that the Probate Court has such jurisdiction. In Scott v. Mofford (1940), 64 Ohio App., 457, 28 N. E. (2d), 947, the court held that inclusion of real estate in the inventory of the grantor’s estate, to which no exceptions were filed and no hearing conducted by the Probate Court, is not res judicata and does not estop the grantee from asserting title to the real estate.

But in Bolles v. Toledo Trust Co., Exr. (1940), 136 Ohio St., 517, 27 N. E. (2d), 145, the Supreme Court held as follows:

“A final adjudication, that certain inventoried personal property is assets of a decedent’s estate and lawfully included in the inventory thereof in a proceeding instituted in Probate Court by filing exceptions to the inventory, is res judicata when properly pleaded as a defense in a subsequent action brought by the person, who in the former proceeding was exceptor, to engraft a trust for his use and benefit upon the same personal property.”

In the course of its opinion, the Supreme Court indicated that although the Probate Court exercises limited jurisdiction to determine questions of title on exceptions to an inventory, it is nevertheless invested with full power to determine what property is lawfully included in an inventory as assets and, as incidental thereto, has jurisdiction to inquire whether inventoried personal property belongs to an exceptor, under the plenary power conferred by Section 10501-53, General Code. But in neither of the first two Bolles cases (132 Ohio St., 21, and 136 Ohio St., 517) did the court determine that upon a finding that property should be excluded from an inventory the court should direct its delivery by the administrator to the owner thereof.

In the instant case, the Probate Court had jurisdiction to determine whether the property belonged to the estate or to the exceptor, and the court found that it belonged to the exceptor. But the controversy herein arises over a transaction occurring after the death of the testator between the widow, as owner of the certificates, and Arthur Hoover. Under such circumstances, the Probate Court would have no authority to direct the return of the certificates, or the proceeds of the sale thereof, to the exceptor upon either a motion to vacate the approval of the original inventory or upon exceptions to the amended inventory.

Appellee has assigned as error the decision of the court overruling his objection to the admission of any evidence on the subject of ownership of the proceeds of the certificates on the ground of res judicata, since the issue had previously been determined upon the motion to vacate the approval of the original inventory. Assignment of errors on behalf of an appellee is contemplated by Section 12223-21a, General Code. Under the 1945 amendment to Section 6, Article IV of the Constitution, the Court of Appeals has ‘ ‘ such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments * * * of courts of record inferior to the Court of Appeals Although doubt has been expressed as to the constitutionality of Section 12223-21a (Winslow v. Ohio Bus Line Co., 148 Ohio St., 101, 117, 73 N. E. [2d], 504), we construe the statute as procedural rather than jurisdictional. Furthermore, Rule VII of this court permits the assignment of errors by an appellee, so the statute does not conflict with the authority of the court to make rules.

Appellee’s assignment of error does not present a question of res judicata. The administration of the estate was still in process. The court’s prior decision upon the motion to vacate the confirmation of the inventory may have become “the law of the case,” but an inferior court can not forestall review by an appellate court by adherence to a prior erroneous decision. New York Life Ins. Co. v. Hosbrook, 130 Ohio St., 101, 196 N. E., 888, 118 A. L. R., 1283. The court below adhered to its former decision. Therefore, the appellee was not prejudiced by the admission of testimony at the second hearing.

The appeal in cause No. 755 was properly perfected, and the judgment from which that appeal is taken should dispose of the question. However, since the amended inventory was actually filed, it vacated the original inventory and the proceeding incident thereto, and it was proper, if not necessary, for the widow to file exceptions thereto.

Therefore, the judgments in both cases are reversed and the causes remanded with directions to exclude from the inventory the five certificates of deposit.

Judgments reversed.

Conn and Carpenter, JJ., concur.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    House, Appellee, v. Lano, Appellant, et al.
    (No. 633
    Decided October 2, 1950.)

      Mr. Edward W. Rhode, Jr., for appellee.

      Messrs. Schwer & Moore and Messrs. Moon & Wilber, for appellant.
   Carpenter, J.

The plaintiff, a resident of Clyde in Sandusky county, Ohio, was injured in Clyde in the course of his employment upon a scaffold erected by defendant William Lano, a resident of Ottawa county, who was a subcontractor on the general construction work on which plaintiff was employed.

Plaintiff commenced this action for damages for his injuries in the Court of Common Pleas of Erie County. The record shows that two summonses were issued upon plaintiff’s petition to the sheriff of Erie county and returned, “not found.” On a second alias summons, the sheriff’s return shows personal service on William Lano on January 24, 1950, and no evidence was presented disputing that record. This being a transitory action, the court had jurisdiction of the subject of the action and, on that summons, of the person of the defendant.

On March 24, 1950, plaintiff filed a motion stating that William Lano died on January 28, 1950, and that Jane M. Lano was the duly appointed administratrix of his estate. Plaintiff moved that the action be revived against her. A conditional order of revivor was entered ordering the administratrix, within 15 days of service of the order, to appear and show cause why the action should not stand revived.

On plaintiff’s praecipe, the sheriff of Ottawa county was ordered to serve a copy of the order upon the administratrix, which was done March 29, 1950.

She filed a motion to quash service of the order “for the reason that the service of said order was not made in the manner provided or by any authority under the law.” That motion was overruled, and from that order this appeal on questions of law was taken.

In this court, a motion to dismiss the appeal was filed “on the grounds that the order appealed from is not a final order within the meaning of Section 12223-2, General Code.”

That the overruling of an order to quash summons is not a final order from which an appeal lies was decided in Wolf v. Western & Southern Life Ins. Co., 59 Ohio App., 238, 17 N. E. (2d), 438, and that decision was followed in Tonio v. Lett & Co., 65 Ohio App., 304, 29 N. E. (2d), 814, and Hoffman v. Johnston, 68 Ohio App., 19, 36 N. E. (2d), 184. See, also, Sherwood v. Sherwood, 66 Ohio App., 183, 32 N. E. (2d), 563. To these decisions this court will add its voice of approval, and this appeal will be dismissed.

It is also pointed out to the court that an order of revivor is not a final order from which an appeal maybe taken. Squire, Supt. of Banks, v. Guardian Trust Co., 147 Ohio St., 1, 68 N. E. (2d), 312. To this decision Judge Turner wrote a vigorous dissent, in which Judges Matthias and Hart concurred. In Ewers v. Coldren, 151 Ohio St., 193, 85 N. E. (2d), 107, the same question was before the court and Judges Turner, Matthias, and Hart said they were of the opinion expressed in that dissent, but, on the doctrine of stare decisis, they believed, on the procedural question, the law should be regarded as settled, and Squire, Supt. of Banks, v. Guardian Trust Co., was followed.

If the order of revivor was an interlocutory one, the notice issued upon it certainly was.

Appeal dismissed.

Conn and Fess, JJ., concur.


author: Per Curiam.

text:
    Williams, Appellant and Cross-Appellee, v. Goodwin, Appellee and Cross-Appellant, et al, Appellant.

      (No. 1473
    Decided June 9, 1950.)

      Messrs. Myers & Spurlock, for appellant.

      Mr. Charles F. Schaber, for appellee.
   Per Curiam.

These are appeals and a cross-appeal on questions of law from a judgment of the Common Pleas Court of Crawford County, Ohio.

Ann Augustine Williams, as plaintiff, filed her petition against Gail Goodwin as defendant, in the Common Pleas Court of Crawford County, Ohio, in which she, in substance, alleged:

On November 28, 1948, plaintiff was the owner of a 1941 model Chevrolet 2-door sedan automobile, then worth $1,000, which automobile, at or about three-thirty p. m. of said day, was being operated with plaintiff’s consent by one Santo Augustine northerly on and along Rogers street in the city of Bucyrus, Ohio.

Rogers street then had a hard surface, was duly dedicated and open for travel, and was then intersected by Lucas street, likewise hard surfaced, duly dedicated and open for public traffic.

Rogers street runs in a general northerly and southerly direction, Lucas street runs in a general easterly and westerly direction, and the two streets intersect at right angles.

At the aforementioned time, defendant Goodwin was operating a certain automobile in a westerly direction on and along Lucas street in the city at a rate of speed of not less than forty miles per hour.

As Augustine approached Lucas street, he looked in both directions for vehicles on Lucas street and, seeing none, proceeded to and did enter into the aforementioned intersection, when suddenly the defendant Goodwin, traveling westerly in the automobile driven by him, without stopping his automobile or decreasing its speed drove directly into the path of travel of the automobile within the intersection driven by Santo Augustine, so as to cause the two automobiles to collide. The automobile of plaintiff was damaged beyond repair and reduced to a fair value of $250.

Plaintiff alleged further that said defendant Goodwin was, by his conduct and acts, as hereinbefore set forth, negligent in causing such collision, in that he failed to look for other automobiles on such streets, failed to decrease t-he speed of the automobile driven by him, and failed to stop the automobile driven by him, when he knew, or by the exercise of due and ordinary care and caution should have known, by seeing, the automobile of plaintiff coming toward and into the intersection at said time and place, all of which aforestated acts and conduct on part of defendant were the direct and proximate cause of the injuries and damages to said automobile of the plaintiff, without any fault or negligence on the part of the plaintiff, thereby causing plaintiff her loss in the way of damages in the amount of $750.

Plaintiff prayed for damages in the amount of $750 and for costs of suit.

In his answer to the petition defendant Goodwin admitted that on the date charged in the petition plaintiff was the owner of the automobile of which she alleged she was the owner; that on the day and at the time of day alleged in the petition, such automobile was being operated with plaintiff’s consent by Augustine in a northerly direction on Rogers street as alleged in the petition; and that such street then had a hard surface and was a duly dedicated street and open for traffic. Defendant Goodwin further admitted that the street was intersected by Lucas street, likewise hard-surfaced, duly dedicated and open for travel, and that said streets run in the general directions alleged in the petition, and intersected at right angles. Defendant Goodwin admitted further that at the time aforesaid he was operating a certain automobile in a westerly direction on and along Lucas street in the city of Bucyrus, Ohio, and admitted that a collision of such cars occurred in the intersection.

Defendant Goodwin denied that the collision occurred in the manner set forth in plaintiff’s petition and for the reasons therein set forth, and denied each and every statement and allegation contained in plaintiff’s petition not expressly admitted in the answer to be true.

Answering further, defendant Goodwin denied that he- was in any manner careless, negligent, or reckless in the operation of his automobile, and stated that the collision resulted from the negligence of the operator of plaintiff’s automobile, and that any damages sustained by the plaintiff were the proximate ■ result of the carelessness and negligence of the driver and operator of plaintiff’s automobile.

To the answer of the defendant Goodwin the plaintiff filed a reply in which she denied each and every, all and singular, the material allegations contained in the answer which were inconsistent with the allegations of the petition.

Following the filing of the answer, the defendant Goodwin filed a motion to make The Ohio Farmers Insurance Company a party defendant to the action, for the stated reason that said insurance company was interested in the controversy and was a necessary party to a complete determination of the questions involved in the suit. After hearing, the court sustained this motion and ordered The Ohio Farmers Insurance Compaiiy to be made a party defendant, and summons was then served upon the insurance company, following which the insurance company filed an answer.

This answer was almost wholly evasive and no relief was asked, but in it the insurance company, among other things, alleged that “answering under the command of said summons * * ‘x‘ in equity it considers the fact to be that plaintiff might be a trustee for it depending upon the verdict and/or the judgment which might subsequently be rendered or entered herein.”

The defendant Goodwin did not file any motion to strike the answer from the files as being evasive or as being a sham, or to require the insurance company to make it more definite and certain.

The pleadings above mentioned were the pleadings upon which the cause was submitted in the Common Pleas Court.

A jury was impaneled, and trial began November 30, 1949. The plaintiff offered her evidence and rested. Thereupon the defendant made a motion for a directed verdict which, after argument of counsel, was overruled by the court.

Following the action of the court in overruling' the motion for directed verdict, defendant called plaintiff to the witness stand, as well as one A. C. Hunter, both of whom testified to the effect that plaintiff carried collision insurance on her automobile under a policy issued by The Ohio Farmers Insurance Company and had been compensated by the insurance company for a portion of the damage claimed to have been sustained by her.

This testimony and the other testimony of these witnesses conclusively proved that The Ohio Farmers Insurance Company was entitled to subrogation for the amount it had paid plaintiff and that by reason thereof the insurance company had an interest in the subject matter of the cause of action pleaded by plaintiff, to the extent of the amount paid by it.

Thereupon defendant made a motion that the cause be dismissed for the reason that the action was not brought by the real party in interest.

Following the arguments on this motion the attorneys for plaintiff requested leave to file an amended answer on behalf of The Ohio Farmers Insurance Company. Counsel for defendant objected to the filing of such amended answer for the reason that the same would substantially change the claim of the plaintiff and of the insurance company and that the defendant could not proceed in the present trial in presenting his defense and was not prepared at the time to do so.

After further argument, the court overruled the motion of defendant insurance company for leave to the insurance company to file an amended answer, and sustained the motion of defendant Goodwin to dismiss the action on the ground that the same was not brought by the real party in interest, and rendered and entered judgment dismissing the action at the costs of the plaintiff.

The plaintiff, Williams, and defendant The Ohio Farmers Insurance Company filed separate notices of appeal upon questions of law to the Court of Appeals from that judgment. The defendant Goodwin filed notice of his cross-appeal upon questions of law to the Court of Appeals from the decision, order and judgment of the Common Pleas Court entered December 9, 1949, overruling his motion for a directed verdict made at the close of plaintiff’s evidence and the resting of her case. These are the appeals and cross-appeal under consideration.

Plaintiff assigns error in the following particulars:

I. The court erred in sustaining the motion ma,de by defendant-appellee in the trial court to dismiss the action of plaintiff, made after the resting of plaintiff’s case in chief, and after defendant had called two of his witnesses to the witness stand, who testified and were cross-examined, all as is shown by the docket and journal entries and as is also displayed by a bill of exceptions, to which judgment of dismissal the plaintiff excepted and does still except.
II. The sustaining of such motion to dismiss the action of plaintiff denied plaintiff of her substantial rights and particularly the right to have the issues joined under the pleadings submitted to the jury.
III. The plaintiff had a constitutional right to have her cause submitted to the jury and tried by the jury.
IV. The plaintiff sustained a grievous legal wrong and was unjustly denied of her statutory and common-law light in and by the dismissal of her action, against her consent and over her objection and exception.

The Ohio Farmers Insurance Company assigns error in the following particulars:

I. The court erred in denying The Ohio Farmers Insurance Company the right to amend its answer and to file supplemental pleading.
II. The court erred in entering an order or judgment of dismissal.
III. The finding, order and judgment of the court is contrary to law.
IV. The order and judgment of the court is contrary to the record facts.

On his cross-appeal defendant Goodwin assigns error in the following particulars :

I. The Court of Common Pleas erred in overruling the motion of defendant for directed verdict in favor of defendant made at the close of the evidence offered by plaintiff at the trial of the cause.
II. The Court of Common Pleas erred in not directing verdict for defendant upon motion of defendant made at the close of the evidence offered by plaintiff at the trial of the cause.
III. Judgment should have been rendered for defendant upon his motion for directed verdict in his favor.
IV. The order and decision of the Court of Common Pleas in denying motion for directed verdict is contrary to law.

In this court, defendant Goodwin filed his motion to dismiss the appeal of The Ohio Farmers Insurance Company for the stated reason that'there is no final order as to The Ohio Farmers Insurance Company to be reviewed by this court, and this court is without jurisdiction to review the order complained of by The Ohio Farmers Insurance Company.

From the statement of this case it will be noted that The Ohio Farmers Insurance Company was duly made a party defendant to the action upon the motion of the defendant Goodwin, charging that it had or claimed to have an interest in the controversy adverse to plaintiff, and that it was a necessary party to a complete determination of the question involved in the suit, and that it was duly served with summons as such party defendant, and filed its answer in the cause.

While the answer of The Ohio Farmers Insurance Company was evasive, its pleading disclosed that it did have an interest of some character adverse to plaintiff and also adverse to defendant in the subject matter of the action, and the evidence elicited by the defendant Goodwin, as above mentioned, proved that such interest was that of a subrogee of the plaintiff in a portion of the cause of action upon which the suit was based.

As The Ohio Farmers Insurance Company was a party to the action and bound by the judgment rendered therein, which was adverse to any right it might have as subrogee, it had the necessary legal capacity to appeal from such judgment, and the motion to dismiss its appeal will therefore be overruled.

We will now consider together the assignments of error upon the appeals of Ann Augustine Williams and The Ohio Farmers Insurance Company.

As The Ohio Farmers Insurance Company, in its capacity as subrogee of a portion of the cause of action of the plaintiff, did not join as a party plaintiff in the action, it was properly made a party defendant and served with summons, thereby constituting it a party to the action, having the same standing therein as if it had joined as a party plaintiff.

Upon the insurance company being made a party to the action, as aforesaid, all persons necessary to a complete adjudication of the matter in controversy were before the court and subject to being bound by its judgment therein.

In this situation, it is obvious that the Common Pleas Court erred in sustaining the motion to dismiss the action for the reason stated in the motion to dismiss, that is, that the action was not brought by the real party in interest.

However, the fact that the court erred in the respect mentioned does not necessarily require the reversal of the judgment, because if there are other reasons appearing of record warranting the judgment dismissing the action, the error in rendering the judgment for an erroneous reason is not considered as prejudicial to the parties complaining and does not warrant the reversal of the judgment.

We will therefore consider whether there are any other reasons apparent of record warranting the judgment of dismissal, and whether the court erred in overruling the motion of The Ohio Farmers Insurance Company for leave to amend its answer and to file a supplementary pleading.

From the record in the case it appears that the automobile owned by plaintiff and driven by Augustine, and the automobile owned by the defendant Goodwin, and driven by him, approached the intersection of their paths at or about the same time.

In this situation, the automobile on the right, which was the automobile driven by the defendant Goodwin, if proceeding toward the intersection lawfully, had the right of way which allowed it to proceed uninterruptedly in a lawful manner in the direction in which it was moving, in preference to the automobile owned by the plaintiff and driven by Augustine, approaching from the left into its path.

In her petition, the plaintiff alleges that the defendant Goodwin was operating his automobile at a rate of speed of not less than forty miles per hour, and that he negligently caused the collision between his automobile and the automobile owned by plaintiff in failing to look for other automobiles on such streets, in failing to decrease the speed of the automobile driven by him, and in failing to stop the automobile driven by him when he knew, or by the exercise of due care and caution should have known, by seeing, that the automobile of plaintiff was coming toward and into the intersection at said time and place.

The only testimony as to the manner in which the plaintiff was operating his automobile at and prior to the collision is the testimony of Augustine, the driver of plaintiff’s automobile. This testimony is, in substance, as follows:

As Augustine, driving plaintiff’s automobile at a rate of speed of about 20 miles per hour, arrived within about 30 feet of the intersection where the collision occurred, he looked to his right, to the east on and along Lucas street, and saw an automobile come into said street from Hopley avenue, one block from Rogers street, and proceed westerly on Lucas street, but that he did not know whether that was the automobile driven by Goodwin with which his automobile afterward collided, and that he did not observe how-fast the automobile was proceeding.

He did not testify as to the length of the block extending from Rogers street along Lucas street to Hopley avenue.

As he came within ten feet of the intersection where the collision occurred, he slowed the speed of the car driven by him to about five or ten miles per hour, and again looked to his right along Lucas street and saw no automobile on Lucas street approaching the intersection, but ^ saw two automobiles parked near the intersection along the south side of Lucas street. He then looked to his left and saw no cars approaching the intersection, and then looked to his right again when near the middle of the intersection, and, “a split second” before the collision occurred, saw the automobile driven by the defendant Goodwin approaching from his right on Lucas street, travelling at a rate of speed of between 40 and 55 miles an hour.

After the collision, both automobiles came to a stop at the northwest corner of the intersection of Rogers and Lucas streets.

From other evidence in the record it appears that both automobiles involved in the collision were damaged to about the same general extent.

Photographs of plaintiff’s automobile were introduced in evidence, but, from the nature and extent of the damages to plaintiff’s automobile, as reflected by the photographs, it would be impossible for any one to determine the speed of either automobile at the time of the collision.

From the testimony of Augustine it appears that if he had looked to the right when he was within ten feet of the intersection, or at any time before he reached the middle of the intersection, he would have observed the approach of defendant’s automobile toward or into the intersection, and, by yielding the right of way, as he was required to do by statute, could have avoided the collision.

Consequently, it is obvious that he either did not look, or, having looked, failed to yield the right of way, so that in either event he was guilty of negligence contributing proximately to cause the damages sustained by plaintiff’s automobile.

Furthermore, Augustine’s testimony as to the speed of the defendant’s automobile is wholly speculative, in that, in his position in the automobile driven by him into the path of defendant’s automobile- near the middle of the intersection, it would be impossible for him, in a “split second” before the collision occurred, to make any determination of its speed. Augustine’s testimony as to the speed of the defendant Goodwin’s automobile is therefore incredible and without any probative effect. Black v. City of Berea, 137 Ohio St., 611, 627, 32 N. E. (2d), 1, 132 A. L. R., 1391; Schaefer v. Cincinnati Street Ry Co., 75 Ohio App., 288, 292, 62 N. E. (2d), 102.

The testimony of record therefore did not tend to prove any of the acts of negligence on the part of the defendant Goodwin, pleaded in the petition.

As the evidence above mentioned tended to prove that Augustine was, as a matter of law, guilty of negligence contributing proximately to cause the damages to plaintiff’s automobile, and there was no evidence tending to prove negligence on the part of the defendant Goodwin in any of the particulars specified in the petition, the judgment of dismissal rendered and entered by the Common Pleas Court is sustained by valid reasons appearing in the record.

As the record affirmatively shows that the plaintiff had no cause of action against the defendant Goodwin, the court, in the exercise of its discretion, was authorized at any time after that fact was developed by the evidence to render judgment dismissing plaintiff’s action and, under the circumstances, such dismissal will not be considered as prejudicial to plaintiff or The Ohio Farmers Insurance Company, plaintiff’s subrogee.

It is a general rule that the refusal of a trial court to permit the amendment of pleadings on the trial is not an abuse of discretion reviewable by the reviewing court'. 2 Ohio Jurisprudence, 1066 et seq., and 1694.

This rule, in view of the evasive character of the answer filed by the insurance company, is particularly applicable to the refusal of the court in the instant case to permit The Ohio Farmers Insurance Company to amend its pleading.

For the reasons mentioned, the court did not err to the prejudice of either of the appellants in any of the particulars assigned by either the plaintiff or The Ohio Farmers Insurance Company.

We will turn now to a consideration of the assignments of error upon the cross-appeal.

Although the judgment appealed from purports to be rendered for the reason that the action was not brought by the real party in interest, it operated as a final adjudication of the action to the same extent as if it were rendered upon a verdict directed by the court at the close of plaintiff’s evidence, so that the defendant Goodwin is not in any way prejudiced by the overruling of his motion for a directed verdict in 'his favor.

Finding no error prejudicial to the complainants in any of the particulars specified in any of the assignments of error of any of the parties, the judgment of the Common Pleas Court is affirmed at the costs of the appellants, Ann Augustine Williams and The Ohio Farmers Insurance Company, and the cause is remanded for execution.

Judgment affirmed.

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


text:
    Howe, Appellee, v. Struble et al., Appellants. (Two cases.)
    (Nos. 4525 and 4526
    Decided March 5, 1951.)

      Messrs. Zachman, Boxell, Bebout & Torbet, for appellees.

      Messrs. Cobourn, Notnagel, Smith & Moran, for appellants.
   Carpenter, J.

Henry Curtis Howe and Ms wife, Alice Howe, were next door neighbors to Henry Hobart Struble and his wife, Esther Struble, but they were not neighborly, and “thereby hangs a tale.”

The Howes, by separate petitions, alleged that on June 8, 1948, the Strubles, “acting in concert,” assaulted and beat them up, and for his damages Henry Curtis Howe prayed for judgment for $5,080 against the Strubles, and Alice Howe sought damages in the sum of $5,015.

To each of the Howe’s petitions the Strubles filed separate answers and cross-petitions.

By special appearance, the Howes moved the court to dismiss the defendants’ cross-petitions “for the reason that said cross-petitions set up new matter seeMng affirmative relief on issues having no connection with the cause of action set forth in plaintiffs’ petitions and for the further reason that no summonses were issued or served upon plaintiffs as to such cross-petitions containing new matter.” The trial court granted these motions without stating the ground or its reasons for doing so, and the cross-petitions were dismissed.

From those orders both defendants appealed to this court on questions of law, the errors assigned being the granting of the motions and the dismissal of the cross-petitions.

Each answer denied all the allegations of the petition and by way of defense alleged that the Howes attacked, assaulted and beat Henry Hobart Struble, who, acting in self-defense, “unsuccessfully attempted to defend himself against such attacks, assaults and beatings, and struck back at Henry Howe and attempted to avoid and evade the continuing attacks of Henry Howe and Alice Howe; and that in attempting such self-defense said Henry Hobart Struble retreated approximately 100 feet until lie was tripped and pounced upon” by plaintiffs, who continued to assault and beat him, gouging his eyes and ears until bystanders intervened.

Each of the Strubles, in separate cross-petitions, incorporated all the allegations of his or her answers “as if fully rewritten herein and further alleges that the attack and assault by Henry Howe and Alice Howe on this defendant (Henry Hobart Struble) was but one of a continuing series of incidents, that said Alice Howe and Henry Howe have maliciously conceived and carried out since June of 1946 to the present time (October 26, 1948) to assault, intimidate, threaten, harass, embarrass and inconvenience defendant and defendant’s family for the express purpose of forcing defendant’s family to sell their home and move elsewhere. With such malicious design plaintiff and plaintiff’s husband (wife) since June of 1946 have * * *_>> Then follow, in separately lettered paragraphs, allegations of 11 different and specific tort charges which include several separate slanders, threats of violence, trespass on property, two incidents of placing posts in an alley to interfere with the Strubles in the use of their automobile, malicious prosecution of Esther Struble for theft of a five-cent newspaper, complaints to the police department of the Strubles’ conduct, complaints to the welfare department of the care of their child, and complaints to Toledo Edison, employer of Henry Hobart Struble, and to the employer of Esther Struble.

In 1947, the provisions of the Civil Code, dealing with answers and cross-demands were changed. The provisions material here are now as follows:

Section 11314, G-eneral Code. “The answer shall contain :
“1. A general or specific denial * * *;
“2. A statement in ordinary and concise language of new matter constituting a defense or counterclaim;
“3. When a defendant seeks affirmative relief therein, a demand for such relief. ’ ’
Section 11315, General Code. “The defendant may set forth in his answer as many grounds of defense, counterclaim as he may have, whether such as heretofore have been denominated legal or equitable, or both. But the several defenses must be consistent with each other, and each must refer in an intelligible manner to the cause of action which it is intended to answer.”
Section 11317, General Code. “A counterclaim is a cause of action existing in favor of one or more defendants against one or more plaintiffs or one or more defendants, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action or arising out of contract or ascertained by the decision of a court.
“Such counterclaim shall not be limited to the amount claimed by the plaintiff or defendant against whom such counterclaim is asserted.”

The substance of these provisions was enacted in 1851 as a part of the Civil Code, and, except for the amendments of 1947 omitting setoffs, there has been little change.

At common law there were few cross-demands that could be pleaded as such. Apparently the Code sought to liberalize this procedure and by so doing to avoid a multiplicity of actions. Some of the earlier decisions tended to follow the common-law form. This was illustrated in Miller v. Nicholas, Dayton, 259, cited and relied upon by the plaintiffs. That was the word of Judge Haynes. The report of the decision in that case does not show its date, all decisions in the Dayton Report ending in 1873. It is interesting to note from an examination of Shepard’s Citations that Miller v. Nicholas has never been cited in any reported decision.

The cross-petitions of the Strubles by reference included their previously stated defense allegations that the Howes attacked and injured Henry Hobart Struble. Regardless of the other allegations of their cross-petitions, one stated a good counterclaim. It certainly arose out of the same transaction alleged in the petitions, and the court erred in the dismissal.

Exactly in point on this proposition is Mogle v. Black, 3 C. D., 27, 5 C. C., 51, which was an action to recover damages for an assault and battery. There was a counterclaim in which it was averred that immediately prior to the assault the plaintiff slandered the defendant. The trial court sustained a demurrer to the counterclaim. The Circuit Court reversed, and the Supreme Court affirmed the reversal without opinion (51 Ohio St., 582), except to say “on authority of Mogle v. Black, 5 O. C. C. Rep., 51.”

The Circuit Court discussed the counterclaim procedure of Ohio at length, and gave it a very liberal application.

Speaking of the term, “transaction,” as used in the statute, it said:

“A ‘transaction’ is defined by Webster, ‘that which is done’; ‘an affair.’ Thus any primary right of the defendant which is violated in ‘ that which is done, ’ or ‘the affair’ set forth in the plaintiff’s petition or connected with it, is if we give the ordinary meaning to the words of the statute a proper matter of counterclaim.” (Emphasis added.)

The case of Cincinnati Daily Tribune Co. v. Bruck (1900), 61 Ohio St., 489, 56 N. E., 198, started as an action for libel. The defendant counterclaimed for damages for malicious prosecution claimed to have occurred prior to the alleged libel, by reason of a malicious suit by plaintiff, a shareholder, for dissolution of a corporation and appointment of a receiver.

The court found that the civil suit did not constitute actionable malicious prosecution and, in its per curiam, opinion, stated:

“If, however, the facts stated constitute a cause of action in favor of the defendant for the recovery of damages * * * it is very clear that they would constitute a counterclaim in this action. They are connected with the subject of the action; and this is sufficient to warrant their being pleaded as a counterclaim. ’ ’

Under the circumstances, that statement was obiter, but it was the thought of the court.

McCaskey Register Co. v. American Case & Register Co., 19 O. D., 562, 8 N. P. (N. S.), 115, is a trial court decision with which a present member of the Supreme Court of Ohio is familiar. Like this case, that case involved a war, not a single battle. It was commercial, this was physical and mental. The McCaskey case involved a continuing course of conduct by the defendant which, as unfair competition, allegedly damaged the plaintiff. In answer, the defendant denied the allegations of the petition and, by cross-petition, alleged a train of specific acts and conduct as unfair competition by the plaintiff to defendant’s damage. Later defendant filed a supplemental cross-petition alleging similar acts of plaintiff subsequent to the filing of the cross-petition. Demurrers to the cross-petition and its supplement were overruled, and in so doing the court reviewed the Ohio decisions on counterclaim, and commented on the liberal use made of that procedure, as contrasted with the practice in New York.

In the instant case, from the allegations of all the cross-petitions, it appears that the assaults, including the one alleged in the petitions and other torts of the plaintiffs, formed a part of a continuing combative course of conduct which existed between these neighbors over a period of two years.

Having regard for the liberal interpretation the courts have given the counterclaim statutes, and in the interest of justice and the avoidance of a multiplicity of actions, the cross-petitions should stand. It may be that some of the torts charged to the plaintiffs may not entitle both or either of the defendants to damages, such as the inclusion by reference by Esther Struble of the injuries to her husband in the assault she alleged the plaintiff made upon him. Such matters can be corrected in the trial court.

Brown v. Kuhn, 40 Ohio St., 468, and Southward v. Jamison, 66 Ohio St., 290, 64 N. E., 635, answer the contention that summonses were ncessary on the cross-petitions.

The court erred in dismissing the cross-petitions and its orders so doing are reversed and the causes remanded for further proceedings.

Judgments reversed.

Fess and Conn, JJ., concur.


author: Middleton, P. J.

text:
    Hennessy, Appellee, v. Moreland, Appellant.
    (No. 241
    Decided May 16, 1951.)

      Messrs. Myers <& Hoopes, for appellee.

      Messrs. Sanders <& Grigsby, for appellant.
   Middleton, P. J.

This cause is submitted to the court on the sole question of the legal or equitable effect of the instrument in question, as set out in both the petition and the answer.

The facts attending the execution of the instrument, a purported lease, are undisputed. By agreement of counsel, as shown by the record, the following facts are admitted to be true:

1. The instrument executed by the parties is as set forth in the pleadings.
2. No dispute exists as to the terms of the instrument, and the parties signed the instrument they intended to sign.
3. Possession was taken by the defendant, under this instrument.
4. The parties intended to sign a valid lease for a period of five years.
5. The parties intended to have the instrument acknowledged and properly witnessed.
6. The term of the lease was to begin on March 31, 1950.
7. If the instrument had been properly acknowledged and witnessed it would have done no violence to the actual intent of the parties.

It is conceded that in law the instrument can create no legal title in the defendant. The only question is whether the instrument, defectively executed, shall, in equity, be treated as a contract to make a lease and, as such, specifically enforced to give full effect to the intention of the parties.

It is without question the rule in Ohio that in equity a defectively executed lease, although void at law, may be held to be a contract to make a lease, and specific performance of the contract ordered by the court.

While many cases could be cited in support of the above statement, it is sufficient to cite the case of Lithograph Building Co. v. Watt, 96 Ohio St., 74, 117 N. E., 25, wherein the court, in its opinion on page 84, stated:

“A defectively executed instrument, either a lease or a deed, when made by the owner, may be enforced against him as a contract to make a lease or deed for the reason that it is his contract. ’ ’

The cases cited by the plaintiff, claimed to be in opposition to this rule, are not applicable as the cause of action in each of the cited cases was at law and not in equity.

In view of the agreed facts and the stipulations of counsel in the instant case, the court finds that the instrument set forth in the pleadings is a contract to make a lease, and that the defendant is entitled to specific performance thereof.

Plaintiff’s claim that equity will deny relief to the defendant because of “unclean hands” is without merit. This defense could be interposed only if the action supporting such a claim occurred prior to or at the time of the entering into of the lease.' No such claim is made in the instant case.

All other questions raised by the pleadings are reserved for further hearing.

Decree for defendant.

Jaoicson and Guernsey, JJ., concur.


author: Hunsicker, J.

text:
    Collier, Appellee, v. The B. F. Goodrich Co., Appellant.
    (No. 4138
    Decided December 27, 1950.)

      Messrs. Brouse, McDowell, May, Bierce db Woriman, for appellee.

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellant.
   Hunsicker, J.

This is an appeal on questions of law from a judgment for the appellee herein, Leonora M. Collier, wherein she was awarded the right to participate in the workmen’s compensation fund by reason of the death of her husband, John C. Collier, who was an employee of appellant, The B. F. Goodrich Company, herein called Company, a self-insurer under the terms of the Workmen’s Compensation Act.

John C. Collier, the deceased, was employed at what is known as the Miller Division of The B. F. Goodrich Company. The Miller division occupies nearly an entire city block; the only part of such city block not owned and used by the Company is a small portion of the northeast corner, and the right of way of the Akron-Barberton Belt Line Railroad.

This railroad intersects the city block on which the Company plant is located, from the northeast corner thereof diagonally toward the southwest. Many of the employees enter the Company property at the northeast corner by walking along the railroad right of way. This means of entrance has been used for a number of years, because it is a shorter route for those who park their automobiles in the private parking grounds on the east side of the street across from the Company building. There are entrances provided by the Company for its employees on the south side and the west side of its factory.

On August 17, 1945, John C. Collier, the deceased husband of the plaintiff-claimant, parked his motor vehicle in one of the private parking lots on the east side of the street across from the Company. Collier walked to the railroad right of way and proceeded along the side of the tracks adjacent to the Company property. He then started to cross these tracks, and, in doing so, was struck and killed by a locomotive of the Akron-Barberton Belt Line Railroad.

The Company did not own the railroad right of way, nor did it control the operation of trains over such right of way. The railroad company did, however, serve, in its course of business, the defendant (appellant) Company.

Application was made by Leonora M. Collier, wife of the decedent, to participate in the Workmen’s Compensation fund. This claim was denied by the Industrial Commission. On appeal to the Common Pleas Court, a verdict in favor of Leonora M. Collier was returned, and, from the judgment rendered thereon, an appeal on questions of law is before this court.

The Company claims (1) the trial court “erred in refusing to enter final judgment for defendant-appellant”; (2) the trial court “erred in overruling the motion of defendant-appellant for a new trial because, (a) of error in the general charge to the jury, and (b) the verdict of the jury and judgment of the court are not sustained by sufficient evidence and are contrary to law. ’ ’

The question, determinative of this appeal, is: Was decedent’s death the result of an injury received in the course of and arising out of his employment?

Ohio has adopted a liberal interpretation of the Workmen’s Compensation Act in furtherance of the legislative requirement “to carry out justly the spirit of this act * * Section 1465-91, General Code; Bowling v. Industrial Commission, 145 Ohio St., 23, 60 N. E. (2d), 479.

A review of the Ohio cases discloses that recently the term “zone of employment” is used as indicating an area near the place of employment where the hazards confronting the employee are greater than that which the nonemployee faces in his ordinary pursuits. If any employee is injured in such “zone of employment,” the injured workman is permitted to participate in the compensation fund. Sebek v. Cleveland Graphite Bronze Co., 148 Ohio St., 693, 76 N. E. (2d), 892.

We have found no Ohio case which has allowed an employee to participate in the compensation fund, where such employee, having ingress to the employer’s property provided by such employer, enters the property of his employer by trespassing upon another’s property at a more convenient place for the employee, and while so trespassing sustains an injury resulting in the death of such employee. In the instant case, Collier, the decedent, was entering the Company property at a place convenient for himself, by trespassing on the railroad right of way. This mode of entering the Company property had been used by the workmen for many years, although entrances where no trespassing was necessary were provided for such workmen by the Company.

We are not unfamiliar with the pronouncement of the Supreme Court of the United States in the case of Bountiful Brick Co. v. Giles, 276 U. S., 154, 72 L. Ed., 507, 48 S. Ct., 221, but the Supreme Court of Ohio, although adopting the view that the hazards of employment do begin before the employee has reached his place of employment, has not permitted a right of recovery under facts similar to those which confront this court in the instant case.

The instant case is readily distinguishable from the pronouncements made in Industrial Commission v. Barber, 117 Ohio St., 373, 159 N. E., 363: Industrial Commission v. Henry, 124 Ohio St., 616, 180 N. E., 194; Kasari v. Industrial Commission, 125 Ohio St., 410, 181 N. E., 809, 82 A. L. R., 1040, and the later cases following the doctrines therein announced.

We therefore determine as a matter of law that the injury and resulting death of John C. Collier did not arise in the course of his employment. The trial court committed error prejudicial to the substantial rights of the defendant Company in refusing to enter final judgment in its favor.

The judgment of the Common Pleas Court is reversed, and final judgment is rendered for the appellant.

Judgment reversed!.

Stevens, P. J., and Doyle, J., concur.


text:
    Lavell, Appellant, v. Raskin Hotel Co., Appellee.
    (No. 7367
    Decided February 20, 1951.)

      Messrs. Burke $ Cooney, for appellant.

      Messrs. Bendigs, Fry & Kiely, for appellee.
   Per Curiam.

In this case there were two issues submitted to the jury — negligence and contributory negligence. A general verdict for defendant was returned by the jury. No interrogatories were submitted.

We have examined the record and the appellant’s claim of errors. We find no prejudicial error relating to the issue of negligence. Appellant claims error in that part of the charge relating to the testimony of an expert witness but the most that can be said about it is that the court did not specifically state that if the jury found the assumed facts to be true, then it would not be bound thereby, but was bound to give his opinion such weight as its sound judgment and experience would dictate. There was no special exception to this part of the general charge. The error, if any, is one of omission, not commission.

It is also assigned as error that the court, after properly charging on the burden of proof with reference to the issues of negligence and contributory negligence and the degree of proof to discharge the burden, then charged: “If you find by the weight of the evidence that both the defendant and the plaintiff were guilty of negligence ’ ’ then the plaintiff could not recover. It is urged that the court should have used express language indicating a tilting of the scales. As this language was applied impartially to both plaintiff and defendant, it could not possibly have prejudiced the jury, particularly in view of the fact that the court had already defined the burden of proof as it applied to contributory negligence as well as to negligence.

A reference to 45 Words and Phrases, 19, and other sources, seems to indicate that the expression, “weight of evidence,” has been frequently used to indicate greater weight of the evidence. •

The appellant also claims that the court erred in charging that if the water which overflowed came from faucets which plaintiff had opened and left open, then plaintiff was negligent, without leaving the issue of reasonable care, in that instance, to the jury.

It would appear that this is error and would require a reversal if the record showed it was prejudicial. However, as already noted, there were two issues in this case. The issue of negligence was properly submitted, and it may very well be, so far as this record discloses, that the verdict was based on the jury’s conclusion that the defendant was not negligent, and thus, the issue of contributory negligence was never reached. Bush v. Harvey Transfer Co., 146 Ohio St., 657, 67 N. E. (2d), 851.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


text:
    Arthur et al., Apellants, v. Bender et al., Appellees.
    (No. 22083
    Decided March 19, 1951.)

      Mr. Lody Huml, for appellants.

      Messrs. Edmiston, Boldiser, Schneider dt Zellmer, for appellees.
   Fess, J.

This appeal on questions of law is from a judgment of the Common Pleas Court denying the relief prayed for in the plaintiffs’ petition for injunction and other relief.

The petition was not formally dismissed, but no complaint is made regarding the finality of the order. A temporary restraining order previously granted had expired and the cause was heard upon the merits for a permanent injunction.

Plaintiffs sought to enjoin the defendants from moving an old house and setting it upon sub lot No. 212 in the village of Warrensville Heights, located across the street from plaintiffs’ lot in the same subdivision. The evidence disclosed that there was a uniform and general plan of development containing 19 specified restrictions relating to the lots in the subdivision, including those of plaintiffs and defendants. The original agreement between the owners recited that the premises were subject to the restrictions until July 1, 1975.

One of these restrictions was that “no building of any kind shall be moved upon any lot and no building shall be constructed containing any used or secondhand material. ’ ’

Torrens title certificates were issued to the parties, containing the restrictions which were also designated as covenants running with the land.

Prior to purchasing the house, on July 5, 1950, defendants in compliance with an ordinance of the village secured a permit to move the house and erect it upon their lot. One defendant was not aware of any objections on the part of her neighbors until after the basement and foundations were constructed and the house placed thereon. On July 27, the objectors appeared at a meeting of the village council and protested against the issuance of the permit because it violated the restrictions contained in the deeds. One of the defendants was present at this meeting. Apparently the protest was disallowed by the council on the ground that, under the applicable ordinances, permits for the moving and erection of buildings are issued in compliance with such ordinances without regard to any building restrictions incorporated in deeds.

Plaintiffs filed their petition herein on July 29, 1950. A temporary restraining order was granted on August 3, 1950, to be effective until August 10, 1950, to which date the cause was continued for further proceedings.

There was no credible evidence tending to show that the restrictions had been disregarded to such a substantial extent as to indicate acquiescence on the part of the plaintiffs and the other lot owners. In his opinion, the trial judge stated that he inspected the property complained of and noted that similar types of buildings are situated in the immediate neighborhood. We regard that statement as insufficient to substantiate defendants’ claim, as set forth in the answer, that the restrictions have been violated in numerous instances.

The lot in question is a corner lot on the edge of the subdivision and abuts upon a mud road. The property across the road is a large unimproved field. The rear of defendants’ lot is across the street from plaintiffs’ property. The side of the street upon which plaintiffs’ home is located is improved with modest but well kept homes. Photographs show that defendants’ house is somewhat unsightly and of a sufficient vintage to have lightning rods. One of the defendants testified that their plans included the shingling of the outside of the house by way of improvement. The architect’s drawing and plans were offered as exhibits but are not a part of the bill of exceptions. There was no evidence of actual damage suffered by plaintiffs.

In its memorandum denying the injunction, the Common Pleas Court found that there was no overall plan as to the restriction which all the original property owners or their successors in title were bound to observe.

The court apparently overlooked the fact that there was admitted in evidence a copy of the original recorded plat, the restrictions relating thereto, and the defendants’ Torrens certificate of title reciting that defendants are the owners in fee simple of the lot in question, subject to the restrictions contained in the original agreements between the predecessor owners and to the 19 specified restrictions set forth in the certificate.

The court held also that the permit to move the house to the lot and the absence of any zoning restrictions relating to its erection weighted the equities in favor of the defendants, and that property owners should be vigilant in requiring that protective reasonable restrictions, according to law, changing times, and circumstances, be enacted by local law. The enforcement of appropriate building restrictions incorporated in dedications and deeds antedate zoning regulations by a number of years. Stines v. Dorman (1874), 25 Ohio St., 580, and cases cited on page 583.

It is well settled in Ohio that a court of equity will enforce the observance of valid restrictive covenants as to the use of property, which run with the land, where the grantee has notice of such covenants. Grant v. Hickok Oil Co., 84 Ohio App., 509, 513, 87 N. E. (2d), 708. It is not essential to the right of a plaintiff to have such a restrictive covenant enforced in equity that the covenant be, technically speaking, a covenant running with, the land, where the defendant has actual or constructive notice of the restriction. Brown v. Huber, 80 Ohio St., 183, 201, 88 N. E., 322, 28 L. R. A. (N. S.), 705.

In the instant case, the defendants had notice of the restriction in the certificate of title, as previously indicated. There is no evidence of any actual damage which the plaintiffs and other lot owners might suffer as a result of the erection of defendants’ building, but proof of actual damage is not required as a basis for relief. The nature of the damages is such as not to be susceptible of proper assessment by the trier of the facts. Stines v. Dorman, supra.

In Brown v. Huber, supra, there was likewise no finding that the contemplated improvement would appreciably injure or damage the property of the plaintiff, but the Supreme Court directed the issuance of the injunction. See, also, Dales v. Albrecht, 11 Ohio App., 368.

Inasmuch as plaintiffs elected to appeal on questions of law rather than on questions of law and fact, the judgment of the Common Pleas Court is reversed and the cause remanded for further proceedings in accordance with this opinion and without prejudice, upon retrial, to the right of defendants to submit evideuce tending to show substantial abandonment of the restrictions or an acquiescence therein on the part of the several owners of the lots and such other matters of defense as may be germane to the issues.

Judgment reversed and cause remanded.

Carpenter, P. J., and Conn, J., concur.

Carpenter, P. J., Fess and Conn, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.


author: Hurd, J.

text:
    Hall, Appellant, v. Carter et al., Appellees.

      (No. 21847
    Decided December 26, 1950.)

      Mr. C. L. Sharpe, for appellant.

      Mr. M. E. Wegman, for appellees.
   Hurd, J.

In this appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County in favor of the defendants, an examination of the pleadings and the record discloses that an issue was made upon a petition for declaratory judgment, praying the court for an order declaring that the plaintiff is entitled to be restored to a building permit originally issued by the inspector of buildings of the village of Solon on November 30, 1946, for the erection of a dwelling house on plaintiff’s lot on Crestmont avenue in Solon, Ohio.

The record shows that after the building plans and specifications had been approved and the building permit issued in accordance therewith, and after a permit was also granted by the Cuyahoga county district board of health allowing the installation of a disposal plant, the plaintiff was notified that his building permit had been suspended together with permits covering seven other properties under emergency ordinance No. 1947-3 which reads, in part, as follows:

‘ ‘ Sec. 1. This council finds that buildings can probably not be constructed under the permits listed in section 2 hereof' without violation of the provisions of section 121 of ordinance No. 1928-113 relative to the drainage of cellars and that said permits should be suspended until the ability of said permittees to construct said buildings without such violation is determined. ”

The applicable part of ordinance No. 1928-113, Section 121, referred to an emergency ordinance, which was passed in 1929, reads as follows:

“Before the walls of buildings built on clay or compact soils which hold water, are carried up above the foundation walls, the cellars shall be connected through drain tiles and catch basins with the street sewers. Should there be no sewer in the streets, or if cellars are below the sewer or ground water level, then provisions shall be made to prevent water accumulating in the cellars to the injury of the foundations or the occupancy of the basement or cellars. ’ ’

The evidence shows that all the permits except that of the plaintiff were restored and the persons allowed to proceed with their building plans.

A considerable amount of the testimony in the record relates to a matter which was not put in issue by the pleadings, namely, the adequacy or inadequacy of a sewage disposal plant for treatment and disposal of waste for which the county had issued a permit to which reference has been made above. The sole issue in the case, to which the evidence should have been confined, relates to compliance with ordinance No. 1928-113, Section 121, requiring plaintiff to make provisions “to prevent water accumulating in the cellars to the injury of the foundations or the occupancy of the basements or cellars.” On this issue plaintiff proffered testimony showing or tending to show the terrain of the surrounding territory and the location of nearby homes, etc., as bearing upon the feasibility of his plans and the possibility of complying with the terms of the ordinance in question. The court sustained objections to this testimony.

We think the rejection of this testimony was prejudicially erroneous. If the general territory and terrain surrounding the plaintiff’s premises showed that others similarly situated were able to comply with the ordinance, such evidence would strongly favor the contention of plaintiff that he could likewise conform to the requirements of the ordinance as did the other permittees whose permits had been restored.

We do not pass upon the question of the validity of emergency ordinance No. 1947-3 which was challenged in these proceedings and argued by way of briefs, for the reason that the village of Solon was not made a party defendant to this action as required by Section 12102-11, General Code (Chapter 10, Declaratory Judgments), which provides in part as follows:

“In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.”

For the reasons stated, the judgment is reversed and the cause remanded to the Common Pleas Court for further proceedings according to law.

Judgment reversed.

McNamee and Doyle, JJ., concur.

Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


text:
    In re Estate of Fahle.
    (No. 4466
    Decided May 22, 1950.)

      Messrs. Ray & Diller, for appellant, administrator.

      Mr. Wm. B. Devlin, for appellee, U. S. Mercantile Agency.
   Fess, J.

This is an appeal from an order of the Probate Court authorizing a judgment creditor to present its claim to appellant administrator.

Sophia Louise Fahle died testate on March 1, 1949, and letters of administration with the will annexed was issued on July 14, 1949. Notice of appointment and proof of publication were filed on July 30, 1949.

Appellee’s petition for authority to present its claim was filed on January 16, 1950, and, after hearing, granted on February 23, 1950.

At first blush it appears that the order from which the appeal is taken is not one affecting a substantial right in a special proceeding. However, upon presentation of a claim the administrator must either allow or reject it. By reason of the order, the administrator could not reject the claim on the ground that it was not filed within four months. Upon rejection of the claim, the claimant is permitted to institute an action thereon alleging that the claim was duly presented and rejected, and the administrator could not then collaterally attack the order of the Probate Court allowing presentation of the claim. Busse & Borgmann Co. v. Upchurch, Admx., 60 Ohio App., 349, 21 N. E. (2d), 349. It follows that the granting of the petition is a final order from which an appeal may be taken.

No bill of exceptions was filed, and, therefore, the appeal must be determined upon the pleadings and the transcript of the docket and journal entries.

The petition, in part, alleges that the petitioner did not have actual notice of the decedent’s death or of the appointment of the administrator in sufficient time to present its claim within the period prescribed by law; that the decedent had transacted her business and taken title to real estate as “Louise S. Fahle”; and that petitioner did not know her as Sophia Louise Fahle until January 6, 1950, at which time a review of the administration proceedings revealed that Louise S. Fahle was deceased and her estate was being administered under the name of “Sophia Louise Fahle. ’ ’

The journal entry recites that the matter was submitted to the court upon the petition and the evidence, and that the claimant did not have actual notice of decedent’s death or of the appointment of the administrator in sufficient time to present its claim within the period prescribed by Section 10509-112, General Code.

Appellant contends that the appellee had actual notice as required by Section 10509-134, General Code, when notice of the appointment of the administrator was published in the Toledo Legal News as required by Section 10509-6, General Code. It is contended further that to hold otherwise would emasculate that portion of Section 10509-112, General Code, requiring all claims to be presented within four months and, in effect, would extend the period to nine months.

But Section 10509-134, General Code, specifically prescribes the conditions under which a claimant who has failed to present his claim within four months may have the right to file his claim after the period has expired. One of these conditions is “that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law.” If notice by publication of the appointment of an administrator is to be regarded as actual notice, Section 10509-134 is nullified and inoperative except in ' cases where the Probate Court fails to perform its duty under Section 10509-6, General Code.

The distinction between actual and constructive notice has long been recognized. The distinction is in the manner in which notice is obtained or assumed to have been obtained rather than in the amount of information obtained. Wherever, from competent evidence, either direct or circumstantial, the trier of the facts is entitled to hold as a conclusion of fact and not as a presumption of law that the information was personally communicated to or received by the party, the notice is actual. On the other hand, constructive

notice is that which the law regards as sufficient to give notice and is regarded as a substitute for actual notice or knowledge. Actual notice may be (1) express or direct information, or (2) implied or inferred from the fact that the person had means of knowledge which he did not use. For example, if a person reads a death notice in a newspaper or a notice of the appointment of an administrator in the legal news he would not have absolute or express actual notice, but he would have sufficient means of knowledge from which the trier of the facts might infer implied actual notice. Clark v. B. & O. Rd. Co., 3 N. P., 172, 7 N. P., 647, 4 O. D., 173 (affirmed Miller v. B. & O. Rd. Co., 60 Ohio St., 374, 54 N. E., 369); Crasier v. McNeal, 17 C. C., 644, 646, 6 C. D., 748, 3 O. D., 616; Varwig v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 54 Ohio St., 455, 468, 44 N. E., 92; In re Estate of Erbaugh, 73 Ohio App., 533, 57 N. E. (2d), 294; In re Estate of Hamlin, 54 Ohio Law Abs., 257, 87 N. E. (2d), 691; 30 Ohio Jurisprudence, 194, 197, Sections 3 and 4; 39 American Jurisprudence, 234, 236, Sections 5, 6, and 7; 46 Corpus Juris, 539, 541.

The trial court found from the evidence that the appellee did not have actual notice of decedent’s death or of the appointment of the administrator. That finding may not be overcome by proof of publication of the notice prescribed by Section 10509-6, G-eneral Code.

The order is, therefore, affirmed and the cause remanded to the Probate Court for further proceedings.

Judgment affirmed.

Conn and Carpenter, JJ., concur.