author: Nichols, J.

text:
    Waitman, Exr., Appellant, v. Emmons et al., d. b. a. Fahrer Plumbing Co. et al.; Stockholders Realization Corp., Appellee.

      (No. 1818
    Decided March 12, 1945.)

      Mr. George E. Nicholas, for appellant.

      Messrs. Froug & Froug, for appellee.
   Nichols, J.

This cause is in this court on appeal upon' questions of law and fact from the decree of the Common Pleas Court of Montgomery county and by agreement of counsel was submitted ele novo upon the pleadings and agreed statement of facts, the action being one in chancery for a determination of priority of mortgage liens set up in the petition of plaintiff and the answer and cross-petition of Stockholders Realization Corporation, now known as Dayton Purchasing Company. No other defendant seeks relief in this court.

Prom the pleadings and agreed statement of facts, it appears that on April 30, 1927, Louise Osborn Emmons and Nelson Emmons, Jr., Wife and husband, executed and delivered to Dayton Savings & Trust Company, later known as The Union Trust Company of Dayton, their promissory note in the sum of $50,000, upon which there was due and owing, on April 22,1939, the sum of $49,821.40, and on April 30, 1927, to secure the payment of such note, Louise Osborn Emmons and Nelson Emmons, Jr., executed and delivered to Dayton Savings & Trust Company their mortgage upon the real estate described in plaintiff’s petition, which was duly recorded on May 2, 1927.

On April 16, 1932, Louise Osborn Emmons and Nelson Emmons, Jr., executed their promissory note for the sum of $7,500, with interest, payable to the order of Helen M. Waitman, on which there was dne and owing as of November 22, 1940, the snm of $7,093.12, and to secure such note executed and delivered to Helen M. Waitman their mortgage on the real estate described in the petition, which was duly recorded on June, 21, 1932.

Plaintiff, as executor of the estate of Helen M. Wait-man, deceased, seeks foreclosure of the mortgage executed to her on the premises described in the petition and claims such mortgage to be the first and best lien thereon.

All the assets of The Union Trust Company of Dayton, including the mortgage executed April 30, 1927, by Mr. and Mrs. Emmons, were taken over for liquidation by the Superintendent of Banks of the state of Ohio on October 31, 1931.

On February 19, 1937, Mr. and Mrs. Emmons executed and delivered to the Superintendent of Banks a general warranty deed for the real estate described in plaintiff’s petition, in which they warranted the premises against all claims of all persons whatsoever, such deed being duly recorded, and simultaneously Mr. and Mrs. Emmons executed and delivered an agreement to the Superintendent of Banks, a copy of which is attached to the agreed statement of facts, in which reference is made to the aforesaid deed executed by them to such superintendent for the real estate described in plaintiff’s petition and to the fact that they had previously executed and delivered to The Union Trust Company of Dayton their mortgage upon such premises as security for the promissory note in the sum of $50,000, upon which there was then due and owing in excess of $60,000 and delinquent taxes on the property in excess of $2,000.

This agreement further sets forth that it is the desire of Mr. and Mrs. Emmons as well as the Superintendent of Banks to protect The Union Trust Company of Dayton in every way against loss upon such indebtedness “without foregoing or relinquishing any rights or security which it may now have or hold against said mortgagors for the repayment of said obligation, and * * * in order to accomplish the desires of both parties in this respect, it appears both right and proper that said The Union Trust Company he placed in immediate possession of, with full authority over, said mortgaged premises to the extent that it might even sell, transfer and dispose of the same in such manner and at such price as it may deem best without recourse to or permission of said mortgagors, and * * * it is agreed between the parties that the only method of accomplishing such desired purpose is by way of deed from the mortgagors * * * to the mortgagee * * * conveying the fee simple title to said real estate so mortgaged, and * * * it is fully understood between all of the parties that it would not he for the best interests of the mortgagee that the mortgage which it now holds upon said premises be merged in the fee simple title to said premises which it would thus acquire.

“Now therefore, it is this day agreed between the parties hereto that the said Louise O. Emmons and Nelson Emmons, her husband, will execute and deliver to The Union Trust Company of Dayton, Ohio, their warranty deed for the premises above described, thereby conveying to said The Union Trust Company all of their right, title and interest thereto, thus placing said The Union Trust Company in complete possession thereof with full right to manage, rent, sell, transfer and dispose of the same in such manner, upon such terms and at such price as to it may seem best without let, hindrance or interference upon their part hut with the understanding that any and all income, return or proceeds arising from and coming into the hands of said trust company through the rental or sale of said property, be applied by said trust company as a credit upon the mortgage indebtedness and tax liens above described in the manner and proportion determined by said trust company to be for its own best interest as mortgagee.

“And the said Louise 0. Emmons and Nelson Emmons, her husband, hereby agree that said mortgage indenture and the indebtedness secured thereby shall not be considered in any sense as having been merged in the deed this day given, or in the fee simple title thereby conveyed but that it be kept and continued in full force and effect as security for the existing indebtedness, separate and distinct from the estate upon which it rests.

“And the said Louise 0. Emmons and Nelson Em-mons, her husband, hereby acknowledge the indebtedness now existing from them to said trust company, recognize the intention of said trust company to keep the same alive and in full force and effect and agree that the same be done free from any merger between the two estates in said property which will be vested in said trust company upon the execution and delivery of said deed.”

Subsequently, under order of the Common Pleas Court, the Superintendent of Banks sold to Stockholders Realization Corporation all the uncollected assets of The Union Trust Company, including the real estate in question and the note and mortgage executed by Mr. and Mrs. Emmons to the bank, and at the same time sold, transferred, set over and assigned unto Stockholders Realization Corporation all his right, title and interest in and to the written agreement above referred to, whereby they evidence the intention of the parties not to merge such mortgage with the legal title conveyed.

In the Common Pleas Court, by agreement of the parties, the premises in question were sold and the respective liens transferred to the fund realized upon such sale. The premises were sold for the sum of $16,-000, of which $8,000 was ordered retained by the master commissioner appointed by the Common Pleas Court, that sum being deemed sufficient to protect the rights of plaintiff under the mortgage set up in his petition in the event of an appeal from the decree of that court finding that the mortgage of Mr. and Mrs. Emmons to the trust company had not merged in the legal title conveying such premises to them and was the best and first lien upon the premises. The balance of such proceeds was paid to Dayton Purchasing Company, which was substituted as defendant in place of Stockholders Realization Corporation, such corporation having been reorganized under the substituted name.

Under the stated facts, this court is of the view and so holds that the mortgage executed by Mr. and Mrs. Emmons to The Union Trust Company did not merge •in the legal title conveyed by them to it; and that such mortgage is still in force and effect and is the first and best lien upon the proceeds arising from the sale of the described premises.

The question involved here is not dissimilar to that decided by the Court of Appeals of the Seventh Appellate District in Marshall v. Ebling, 70 Ohio App., 145, 45 N. E. (2d), 318, wherein the writer tíf this opinion expressed the views of that court as to the rules applicable when a legal and equitable estate meet in the same person.

In addition to the authorities cited in Marshall v. Ebling, supra, reference is here made to Summy v. Ramsey, 53 Wash., 93, 101 P., 506, a case in the Supreme Court of the state of Washington, wherein it is stated in the opinion:

“When a greater and.lesser, or a legal and equitable estate, meet in the same person, it is the well-settled rule at law that the lesser or equitable estate is merged and ceases to exist. Whether a merger will be recognized in equity depends upon the interests of the parties and the surrounding circumstances. If there are outstanding liens against which it becomes necessary to protect the title, a merger will not occur. Equity will prevent a merger to promote- substantial justice, but will not do so when its prevention would promote a fraudulent transaction, or carry into effect any unconscionable wrong.
“ ‘Whatever may be the circumstances, or between whatever parties, equity will never allow a merger to be prevented and a mortgage or other security to be kept alive, when this result would aid in carrying a fraud or other unconscientious wrong into effect, under the color of legal forms. Equity only interposes to prevent a merger, in order thereby to work substantial justice.’ 2 Pomeroy’s Equity Jurisprudence (3 Ed.), Section 794.
“In Chase National Bank v. Hastings, 20 Wash., 433, 436, 55 P., 574, this court said:
“ ‘We think the rule is quite well settled that, wherever -it is more beneficial to the person taking the fee that the mortgage upon it should stand, that circumstance should control in determining the question of intention, and equity will give effect to it by preventing merger and treating the mortgage as a subsisting charge. But where, as in the present case, the whole title, legal and equitable, unites in the same person and there is no intervening outstanding interest or lien, and it cannot be perceived that the keeping alive of the mortgage will be to the advantage of the grantee or essential to the protection of any right, and where to do so will work a hardship upon third parties, the acceptance of the deed extinguishes the mortgage and a merger is deemed to have taken place.’ ”

We think the quoted language of the Supreme Court of Washington very clearly and definitely applies to the situation involved in the case at bar. The intention of the parties that the original or first mortgage should not merge with the title conveyed by the mortgagors to the trust company could no more clearly be expressed than by the language used in the agreement entered into between them.

This action is in a court of chancery. Equity will interpose to prevent a merger in order thereby to work substantial justice. To hold under the facts in this case that a merger took place would but lead to the unjust enrichment of plaintiff’s decedent’s estate. No injustice is done to her estate by our holding that a merger did not take place. Her mortgage was taken at a time when the premises were already mortgaged for a sum so greatly in excess of the value of the property that there could have been little hope of any equity in the premises by reason of the second mortgage. To hold that a merger existed under the circumstances would be contrary to the expressed intention of the parties. It is the recognized rule in equity, whatever the rule may be at law, that the intention of the parties at the time will control.

Summy v. Ramsey, supra, was cited to us by counsel for plaintiff, and we are specifically referred to the third paragraph of the headnotes as reported in 101 P., 506, as follows:

“If the holder of a mortgage also acquires the title and conveys with full covenants, his act is conclusive on him as to merger.”

This paragraph cannot be applied to the facts of the case we have here under consideration. Here the holder of the mortgage, who also acquired the title, did not convey with full covenants but, in accordance with the order of the court having charge of the liquidation of The Union Trust Company, conveyed only “his interest as Superintendent of Banks in charge of the liquidation of The Union Trust Company of Dayton, Ohio, in and to all of the assets of said The Union Trust Company * * * upon the terms and conditions as in-said application and order set forth.” .

A decree may be entered herein in accordance with this opinion.

Decree accordingly.

Hornbeck, P. J., and Geiger, J., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Estridge, Admx., Appellee, v. The Cincinnati Street Ry. Co., Appellant.
    (No. 6511
    Decided May 14, 1945.)

      Mr. James A. Culbertson, for appellee.

      Mr. John M. McCaslin, for appellant.
   Matthews, J.

In this case the plaintiff as administratrix recovered a judgment for $4,500 against the defendant for wrongfully causing the death of a boy who was eighteen months old. The jury returned a verdict of $6,000, from which the court granted a remittitur of $1,500, which the plaintiff accepted.

The first error urged upon us is that the amount of the verdict was so excessive as to show that it resulted from passion and prejudice,, which could not be cured by any remittitur. It is said that there is no possible basis upon which a jury could determine the pecuniary value of a child of that age to its parent, and that any attempt would necessarily resolve itself into mere speculation.

In Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St., 33, 140 N. E., 644, the court considered the elements upon which the jury could base an estimate of the money value of a child 5% years old to its parents. At page 41, the court said:

“The record shows that the decedent was a healthy child, large for her age, bright mentally, obedient to her parents, a good child, that she would have gone to school the following year, that she was the daughter of a laboring man, that she had a younger brother and sister, to whom as well as to her parents she had a pecuniary value * * V’

And, at page 42, the court quoted with approval from Corpus Juris as follows:

“‘® * * The mental, moral, and physical characteristics of the child must be considered, as well as his expectation of life, in determining the extent of the pecuniary aid which he would probably give to his parents., and the jury are authorized to take into consideration the probable future increase of earning capacity of the child.’ ”

We find in this record the elements that were deemed sufficient in the Ochsner case, supra, for a determination of the pecuniary value of a child as is shown by the evidence in this case, and we cannot say that the amount found by the jury discloses that it was the result of passion or prejudice.

Defendant complains of the conduct of plaintiff’s counsel in asking the child’s father: “When did you next see your baby after the accident?” to which the ‘answer was “I never got to see him.” It is said that .that tended to arouse the passions or prejudices of the jury. There was no objection at the time and the subject was not pursued. It was immediately followed by a description of the child while living which, of course, was competent and there is nothing else in the record that would indicate the slightest attempt to appeal to passion or prejudice. We cannot think that that question and answer had any such tendency.

. Upon the subject of the preponderance of the evidence, the court charged the jury that:

“By preponderance of evidence is meant the greater weight of the evidence in worth and value. If you •find that the evidence supporting the plaintiff’s claim is greater in worth and value than that offered by the defendant, then the preponderance is with the plaintiff, and she must sustain the burden of proving her case, and your verdict should be for the plaintiff. If on the other hand, the evidence of the plaintiff and the defendant is equally balanced in worth and value, or if the defendant’s evidence outweighs that of the plaintiff in worth and value, then the plaintiff has failed to prove her case by a preponderance of evidence, and your verdict in that event should be for the defendant.”

It is'pointed out that that charge deprived the defendant of the benefit of any evidence favorable to it offered by the plaintiff, and, for that reason, is erroneous. Cincinnati Traction Co. v. Williams, 115 Ohio St., 124, 152 N. E., 30; Van Demark v. Tompkins, Exr., 121 Ohio St., 129, 167 N. E., 370; and, Cincinnati Traction Co. v. Eyrich, 25 Ohio App., 546, 159 N. E., 484. There is no doubt that that charge did not conform to the rule and is erroneous. There still remains the question of whether the error was prejudicial. No judgment should be reversed for mere error. It must be prejudicial error of a substantial nature to justify a reversal.

Whether this error was prejudicial depends upon the existence of evidence offered by the plaintiff that reasonably could be considered as favoring the defendant upon some issue. It is urged strongly that there was no such evidence.

We find ourselves unable to agree with plaintiff’s counsel on that point.

The plaintiff placed the decedent’s father upon the stand. He testified that he was operating the automobile in which the decedent was riding, that the collision with defendant’s bus took place in a street intersection, and that he did not see the defendant’s bus until it was almost in contact with his automobile, when his attention was called to it by his wife, who'was sitting beside him, although he had looked in both directions. It was about 7:20 o’clock in the evening on February 20th. It was raining slightly at the time. He was approaching from the right in a lawful manner and, it is conceded, had the right of way. Whether his failure to see the bus sooner was any evidence of negligence on his part depends upon his duty at the time and place. As the father is a beneficiary of any recovery his contributory negligence was a potential issue and if that evidence showed any breach of duty which he owed to the defendant, the charge which would have deprived the defendant of its benefit would be prejudicial. It is claimed that there was no duty to look to the left, and, therefore, failure to see could not be evidence of negligence.

Now what is the duty of the operator of an automobile who had the right of way at a street intersection? Is his failure to look to the left or to see a vehicle approaching from that direction a breach of duty owing to the driver, of such vehicle t

In Morris v. Bloomgren, 127 Ohio St., 117, at pages 158 and 159, 187 N. E., 2, 89 A. L. R., 831, the Supreme Court said on this subject:

“We have already stated that the driver of a lawfully driven vehicle approaching from the right had the right to assume that the operator of the vehicle approaching from the left would obey the law and yield him the right of way. However, if such operator disobeyed the law, and failed or refused to yield the right of way to the vehicle that possessed it, a situation might arise whereby an obligation of care would arise upon the part of the driver having the right of way. If he should discover, just as he was approaching or entering the intersection, that the driver of the vehicle on his left was violating the law, and was not yielding to him the right of way, it then became the duty of the driver lawfully having the right of way not to wantonly injure the other, but to use ordinary care to avoid injuring him, after discovering and appreciating the dangerous peril in which the negligent driver had placed himself.”

We do not construe that language to exempt the person having the right of way from the duty to look to the left as well as the right if due care required it. Neumann v. After, 95 Conn., 695, 112 A., 350, 21 A. L. R., 970; Webber v. Park Auto Transportation Co., 138 Wash., 325, 214 P., 718, 47 A. L. R., 590; and 5 American Jurisprudence, 667. Ordinary care is the minimum requirement in most, if not all, situations.

The defendant introduced evidence that the automobile in which decedent was riding approached the intersection at not less than forty miles per hour. If this evidence was believed, the right of way, given to one lawfully approaching from the right, was forfeited, and the approaching vehicles placed upon an equality before the law, without any preferential right of way to either. The common-law duty to exercise reasonable care rested upon both.

The defendant also introduced evidence that its bus approached and entered the intersection at a rate of speed of from ten to fifteen miles per hour. Under such circumstances, the fact that the operator of the automobile did not see the bus until the instant of contact became material in determining whether he had exercised reasonable care. That was “offered” by the plaintiff and the charge of the court deprived the ele-' fendant of whatever value it had. Under the authorities, that was prejudicial error.

After the court had instructed the jury generally, counsel for defendant requested that the jury be instructed that “they have no right to be bound by a quotient verdict” which the court refused. That is assigned as error.

The court had instructed the jury that the concurrence of at least nine was necessary to return a verdict and that they should insert in the proper blank space in the form furnished them “the number of.the members of the jury who agree with that verdict,” and had given a special charge that the pecuniary loss must be determined by the jury from the evidence, and not •as a matter of guess work. And, of course, the jury had been sworn to well and truly try and to render a true verdict.

Nothing had occurred at the trial that suggested the jury contemplated using any particular process of composing their first impressions as to the pecuniary loss. The quotient method had not been mentioned and nothing had occurred to indicate that an improper use would be made of that process.

The request did not distinguish between the improper use of the quotient method by agreeing in advance to be bound and a proper method involved in its use in reaching an agreement on the amount. It is the prior agreement to be bound regardless of their actual conviction based on the evidence, that is condemned just as any other disregard of their oath is condemned. 39 Ohio Jurisprudence, 1104. If, after the amount has been ascertained, the respective jurors deliberately accept it as in their opinion a just verdict, it is not legally objectionable. Benjamin v. Helena Light & Ry. Co., 79 Mont., 144, 255 P., 20, 52 A. L. R., 33.

The instruction requested related to the duty of the jurors rather than to an issue in the specific case. It would have been cautionary in nature. On this subject it is said in 14 Ruling Case Law, 749, that:

“But the court cannot be expected to give express and special warning against every possible mistake or misapprehension into which the jury may fall in the discharge of its functions, and when and to what extent instructions of this nature shall be given rests very largely in the sound and impartial discretion of the court. Therefore where there is nothing to show that the jury will be affected by prejudice or sympathy, or will not perform their duties fairly and impartially, it is not error for the court to refuse to give a cautionary instruction.”

We hold that it rested in the sound discretion of the court to give or refuse an instruction upon the jury’s duty as to a “quotient verdict,” and that there is no abuse of discretion shown in this case.

Because the decedent’s father was the operator of the automobile that came in collision with defendant’s bus and would participate in any recovery, tbe issue of bis contributory negligence was in tbe case. For that reason, tbe trial court deemed it proper to insert in the customary form of verdict for tbe plaintiff tbis statement, just above tbe place for tbe jurors’ signatures: “We hereby find that-was guilty of contributory negligence wbicb proximately concurred in causing the collision involved in tbis action.”

In tbe verdict returned in favor of tbe plaintiff the blank space was not filled in. It is argued that tbe verdict is a finding that an unnamed person was guilty of contributory negligence, and that that invalidates tbe verdict.

Upon tbe subject of its verdict, tbe court charged tbe jury that:

“I instructed you that if you find in favor of the plaintiff, and also find that tbe operator of tbe automobile in which tbe decedent was a passenger was guilty of contributory negligence you shall insert in tbe last paragraph, in tbe space provided, tbe name of tbe operator who you find was guilty of contributory negligence. Now if you find in favor of tbe plaintiff, and do not find that tbe operator was guilty of contributory negligence, then of course you will leave that last paragraph blank and not insert any name.”

We bad before us a similar question in Dow Drug Co. v. Nieman, 57 Ohio App., 190, 13 N. E. (2d), 130, and, after considering the decided cases on tbe subject, we drew tbis conclusion, at page 195:

‘ ‘ Tbe legal effect of tbe action of a jury depends not alone upon tbe exact language of tbe verdict. Tbe circumstances .under wbicb tbe verdict was returned, and particularly tbe charge of tbe court, must be taken into consideration.”

Tbe authorities are collected in that opinion.

Our conclusion is, that tbe verdict, read in tbe light of the charge, is a clear finding that there was no contributory negligence by any one.

We find no other prejudicial error in the record.

For error in the charge, excluding the defendant from evidence favorable to it “offered” by the plaintiff, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Hornbeok, P. J.

text:
    Blanton, Appellee, v. Littrell, Appellant.
    (No. 1848
    Decided April 5, 1945.)

      Messrs. Shively, Shively <& Shell, for appellee.

      Mr. Joseph N. McGrath, for appellant.
   Hornbeok, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of the city of Dayton, in favor of the plaintiff, in the sum of $200 plus interest and costs. The trial was had and judgment entered by the acting judge, Harold H. Lamp-man.

The action was to recover a real estate commission claimed to have been earned by the plaintiff under a contract wherein he was given the exclusive right for a period of three months-beginning January 14, 1944, to sell certain real estate of the defendant. Plaintiff claims that the sale was made during the period the contract was in effect between the parties.

The defenses asserted were that the contract had expired; that it was entered into on January 4 and not the 14th; that the sale was consummated on April 10; and that the plaintiff .did not produce the purchaser.

In this court, it is asserted that the trial court erred in finding against the defendant on the two defenses stated, and further that the acting judge was without jurisdiction to hear and determine the cause for the reason that Section 1579-85, General Code, providing for the appointment of an acting judge by the chief justice of the Municipal Court when the incumbent judge of that court shall be temporarily absent or incapacitated from acting, is unconstitutional.

It is asserted that Section 1579-85, General Code, is in derogation of Sections 10 and 13, Article IV, and Section 2, Article XVTI of the Ohio Constitution. Without setting forth the text of the sections, we are satisfied to say that Section 1579-85, General Code, is constitutional. Section 10 of Article IV limits the length of terms of elective judges other than those provided for in the Constitution.

The Municipal Court of the city of Dayton is a creature of legislative action in which the qualifications of a municipal judge are set up. Section 13, Article IV of the Ohio Constitution authorizes the Governor to fill by appointment vacancies occurring during the regular term in the office of any judge, but its language is restricted to vacancies in office which contemplate that the incumbent of the office has died, resigned or has been removed from the office as distinguished from temporary absence or incapacity. The-same observation may be made as to Section 2, Article XYII of the Ohio Constitution.

We are referred to an address by Judge Simon Ross, in which he discussed the proposed amendments to the Ohio Constitution, affecting judicial procedure, 17 Ohio BAR, No. 14, 169, as supporting the contention, in the instant case, that the absence of the judge, though of temporary character, constitutes a vacancy within contemplation of the Ohio Constitution. We refer counsel to the same address in which it is said:

* * as to No. 1, that is, as to the qualifications of judges, I have commented on that. It is simply a restatement of the power that exists in the Legislature today.”

We are in accord with the conclusion reached by the Court of Appeals of Lake county, in State v. Partanen, 67 Ohio App., 248, 36 N. E. (2d), 422, holding constitutional a section of the municipal court act for the city of Painesville, the provisions of which are similar to the provisions of the section here under consideration, and are in accord, also, with the case cited by counsel for plaintiff, State, ex rel. Ramey, v. Davis et al., County Commrs., 119 Ohio St., 596, 165 N. E., 298, which reiterates the proposition that the Legislature has exclusive power to create courts inferior to the Courts of Appeals, and to define their power and jurisdiction.

The other error assigned may be disposed of by the determination of one question, namely: Was the contract between the parties entered into on the 14th day of January 1944? If so, then the sale was made during the term of the three months during which the contract controlled the rights of the parties. This issue was vigorously controverted, and we are frank to say that the correctness of the determination of the trial judge is somewhat doubtful. There are many facts tending to corroborate the claim and the testimony of the defendant and his wife. It is somewhat disconcerting and damaging to plaintiff’s cause to have his own employee testify, purportedly from a copy of the controlling contract, that such contract showed that it was entered into on the 4th day of January and not the 14th, and that he, the employee, had so informed Mrs. Littrell before the sale was completed. There is, however, no defense of estoppel.

On the other hand, the original contract is in evidence. It apparently bears the date of January 14. There is no direct testimony that the date had been changed or that an insertion of the figure “1” had been made before the figure “4.” Therefore, in the last analysis the question presented was one largely of credibility which was resolved by the trial judge in favor of the plaintiff. Further, there is considerable support for the claim that the plaintiff contacted the eventual purchaser during the term of the contract and had arranged to show the property to him during that period.

We do not feel justified in invading the province of the trial judge, although if this were presented to us as an original question we would have considerable hesitancy in reaching the same conclusion as he. We cannot say that the conclusion is so manifestly against the weight of the evidence as to require the judgment to be set aside. It will, therefore, be affirmed.

Judgment affirmed.

Geiger and Miller, JJ., concur.


author: Jackson, J.

text:
    Schwoll, Appellant, v. Meeks, Appellee.

      (No. 869
    Decided December 14, 1944.)

      Mr. Otis T. Lippincott, for appellant.

      Mr. John F. Emans, for appellee.
   Jackson, J.

The plaintiff, appellant herein, filed her petition in the Municipal Court of Lima, Ohio, setting forth, in substance, that the defendant is indebted to her for room rent for himself, his wife and his two minor children, at the rate of five dollars per week, as of February 28, 1931, less a credit thereon of seven dollars; and that on February 28, 1931, the defendant acknowledged such indebtedness for room rent to the plaintiff, by written instrument signed by the defendant and his wife, and delivered to the plaintiff; and she prays for judgment against the defendant in the sum of $303, with interest.

To this petition, the defendant, appellee herein, filed an answer asserting that on the 25th day of July 1942, the defendant received a discharge from all of his provable debts, by reason of the proceedings wherein the defendant was adjudicated a bankrupt on the 26th day of March, 1942, in the District Court of the United States for the Northern District, Western Division of Ohio, and that the schedules of the defendant, in the bankruptcy proceeding included the obligation upon which the petition of the plaintiff in the Municipal Court is based.

The plaintiff filed her reply to the answer of the defendant, which reply, in substance, alleges that she-admits the proceedings in bankruptcy of the defendant, and that he received a discharge from all of his provable debts; on the 25th day of July 1942, but that the claim asserted by her is not such a claim as is provable in bankruptcy and for which a discharge can be had.

On August 16,1944, a judgment of no cause of action was rendered in favor of the defendant as against the plaintiff, in the Municipal Court of Lima, Ohio.

From this judgment of the Municipal Court the plaintiff filed an appeal to this court on questions of law from the final order of the Municipal Court, dated August 16, 1944.

The plaintiff has five specifications in her assignment of errors. These five specifications can actually be resolved into one, namely, that the discharge in bankruptcy of the defendant did not operate as a discharge of the obligation sued upon, because it was a non-dischargeable debt under the Federal Bankruptcy ■ Act.

The petition of the plaintiff recites that the defendant is indebted to plaintiff for room rent for himself, his wife and his two minor children, for a period of sixty-two weeks at the rate of five dollars per week, amounting to $310, as of February 28, 1931, less a credit of seven dollars, and that such indebtedness was acknowledged by a written account signed, executed and delivered to the plaintiff by the defendant. The written acknowledgment of the debt was dated February 28, 1931.

The defendant, Walter Cloyd Meeks, received a discharge in bankruptcy on the 25th day of July, 1942.

It is admitted by the plaintiff, in her reply, that she presented her claim in the bankruptcy action, and that the claim'of the .plaintiff was scheduled in the petition of the bankrupt at the time of his adjudication as a bankrupt.

Section 17 (2) of the Federal Bankruptcy Act (Title 11, Section 35, U. S. Code) excepts from the operation of a discharge, provable debts which are liabilities “for maintenance or support of wife or child.”

The above-quoted portion of clause (2) applies to the common-law liability involuntarily imposed upon a parent for the support of wife or child. It was intended to include liability where a parent had failed or refused to make provision for maintenance and such .was furnished by another. It does not include-contracted liabilities for goods purchased (although these may be necessaries), medical attendance furnished, or board supplied, by a parent for the use and benefit of the wife or child. Section 17.19, page 1619 of Volume 1 of the Fourteenth Edition of Collier on Bankruptcy.

This clause of the bankruptcy act has been interpreted many times. The leading case with reference thereto is Schellenberg v. Mullaney, 98 N. Y. Supp., 432, 112 App. Div., 384, 16 American Bankruptcy Reports, 542, Supreme Court of New York, Appellate Division, Second Department, in which the court speaks as follows :

“This last clause refers only to the involuntary liability under the common law for support of wife and children, and to any one who relieves their want; and under bonds, or the like, given for such support by requirement of courts and magistrates. It does not refer to liabilities for goods purchased by a husband or parent, as in this case, and used by wife or child. This latter fact does not change the character of the debt.”

Accordingly, the judgment of the municipal court is affirmed.

Judgment affirmed.

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


text:
    Kohler, Appellee, v. The Baltimore & Ohio Rd. Co., Appellant.
    (No. 3013
    Decided November 3, 1944.)

      Mr. Marvin Traxler, for appellee.

      Mr. Harry 8. Manchester and Messrs. Harrington, Huxley & Smith, for appellant.
   Nichols, J.

This cause is in this court upon appeal on questions of law by The Baltimore & Ohio Bail-road Company, defendant below, from a judgment rendered against it in the- Court of Common Pleas of Ma-honing county in favor of MarlcC. Kohler, plaintiff below, upon the verdict of a jury and after a remittitur had been ordered by the court.

The action of plaintiff was for damages for alleged rough handling and delay in delivery of a carload of cattle shipped from Kansas City, Missouri, to Youngstown, Ohio, oil October 29, 1941, the pertinent allegations of plaintiff’s amended petition being that “the defendant did not safely deliver the livestock but the cattle were thrown, jammed, and handled in an exceedingly rough manner and were irregularly handled and not delivered according to the contract of delivery in that the shipment was delivered late and as a proximate result of the negligence of the said defendant, the cattle became sick and as a direct result of said negligence thirteen cattle of said shipment died. Said cattle arrived here in Youngstown November 1, 1941, at 2:00 a. m.”

Plaintiff further alleged that at the time of delivery of his cattle to'the railroad carrier on October 29, 1941, the fifty head of cattle were valued at $2,500; that on arrival in Youngstown the reasonable market value of the fifty cattle was $25 per head, a total of $1,250; “that after arrival thirteen of the cattle died amounting to a loss of $650,” the salvage value thereof being $12; and that he sustained a loss and damage “as the. result of the gross negligence of the defendant” in the sum of $1,563, for which sum he prayed judgment.

By its answer, defendant admitted that it was a common carrier; that fifty head of stock cattle were shipped from Kansas City, Missouri, stockyards, on October 29, 1941. It denied all other averments of plaintiff’s amended petition, specifically denying that it was guilty of any negligence or that the shipment was in any wise roughly or irregularly handled, and alleging that it exercised due and proper care in all particulars in connection with the transportation of such shipment.

For its second defense, defendant denied the shipment was delivered late, alleged it was delivered in accordance with the terms of the uniform livestock contract effective at the time, which provided that “no carrier is bound to transport said livestock by any particular train or vessel or in time for any particular market, or otherwise than with reasonable dispatch»” and averred that the shipment was transported with reasonable dispatch.

For its third defense, defendant set up another provision of the uniform livestock contract, to wit, paragraph (a) of section 1, which provided:

“Except in the case of its negligence proximately contributing thereto, no carrier or party in possession of all or any part of the livestock hérein described shall be liable for any loss thereof or damage thereto or delay caused by the act of Grod, the public enemy, quarantine, the authority of law, the inherent vice, weakness or natural propensity of the animal, or the act or default of the shipper or owner, or the agent of either, or by riots, strikes, stoppage of labor or threatened violence.”

Defendant further alleged that any ioss or damage sustained by plaintiff was caused solely and proximately by the natural propensities of the animals and the fault of plaintiff by his agent, the shipper, in procuring the vaccination of the animals with Peter’s Hemorrhagic Septicemia Bacteria at a time too close to the time when they were loaded for shipment, which lowered the resistance of the animals to a point where they were unable to withstand the ordinary strain of transportation and became ill with pasteur ello sis or hemorrhagic septicemia, and bronchial pneumonia, fo.r none of which defendant was responsible and to none of which it contributed.

For its fourth defense, defendant set forth another of the provisions of the uniform livestock contract, being paragraph (b) of section 1, as follows:

“Unless caused by the negligence of the carrier or its employees, no carrier shall be liable for or on account of any injury or death sustained by said livestock occasioned by any of the following causes: Overloading, crowding one upon another, escaping from cars, pens, or vessels, kicking or goring or otherwise injuring themselves or each other, suffocation, fright, or fire caused by the shipper or the shipper’s agent, heat or cold, changes in weather or delay caused by stress of weather or damage to or obstruction of track or other causes beyond the carrier’s control.”

Defendant further alleged that any loss or damage ¡sustained to the shipment was caused solely and proximately by the negligence of the shipper in having medication administered to the animals just previous to the shipment and the weather conditions while the shipment was en route, all of which were beyond the control of the defendant.

¡ For his reply, plaintiff denied each and every statement contained in defendant’s answer and specifically denied that the shipment was transported with reasonable dispatch.

It may be said here that upon the trial there was admitted in evidence on behalf of defendant the uniform livestock contract covering the shipment and that all of the terms and conditions set up in the various defenses of the answer are shown to be a part thereof.

It is observed that plaintiff does not complain that the car furnished by the shipper was in any manner unsuitable for such shipment or that there was any lack ¡of proper bedding or any failure to provide a period of rest, food or water during the transportation; neither is there any evidence in the record tending to show any failure in such respects.

. In charging the jury, the court said:

• “Now, it is claimed in the plaintiff’s petition the cattle were thrown about and jammed and handled in ¡an exceedingly rough manner. That claim is withdrawn from the jury and you do not consider that claim ■as the evidence does not warrant your consideration of that claim. The only claim, as I have said, is with respect to whether or not the delivery was made with, reasonable dispatch.”

We are in accord with the action of the trial court in withdrawing the issue of rough handling from the consideration of the jury, there being no evidence' in the record to sustain such claim.

Upon the trial, plaintiff offered evidence to the effect that on October 31,1941, he appeared at the freight office of the defendant in Youngstown and “reported I had a load of cattle coming this way * * * and I would like for him to send a tracer so that I would know when the cattle would arrive ’ ’; that as a result of the tracer sent by the agent he got a report that the cattle would be in Youngstown at 8 o’clock that evening; that pursuant to such report he arrived at the freight station about 8 o’clock, found a night watchman of whom he inquired if he had any orders on the cattle and was told that he did not, but that he could probably call the Haselton yard, the switching yard; that he called an employee of the company at the Haselton yard, who told him “the cattle were not but they were lost”; that he told defendant’s employee he was in to unload them and wondered how soon he could find them, and the employee replied, “We are looking for them, I don’t know when we will find them. Call me back after while”; and that he called back between 11 and 12 o’clock and was informed “they had not found the cattle. ’ ’

Plaintiff testified that the cattle did arrive at 2 o’clock on the morning of November 1, and he and a neighbor he had brought along to help him began unloading. He stated that “it was a regular cattle car, we opened the doors, the unloading door, and backed the truck in and dropped the loading chute and began loading”; that “the car was in very bad condition * * * the cattle were wading around in the mire, three or four inches deep and plenty wet”; that there was no straw and lie did not notice any sand; that it required four truck loads to transport the fifty cattle to his home; that he arrived at his home with the last load about 6 o’clock, placed the cattle in his barn and did not see them again for about three hours, at which time he noticed that they were all lying in the straw and were tired and weak, “very much exhausted”; that they had been wet and there was “material” on their bodies (evidently meaning that the cattle were more or less covered with their own manure); and that “from their appearance I would say they were trampled in the car in this mire.”

; On the morning of November 2, 1941, plaintiff noticed that the cattle had not taken very much of the food he had provided for them. He stated that toward noon he went back to the barn and detected some had loud breathing, called a veterinarian, took their temperatures and began treating them. One of the cattle died while the veterinarian was there on his first trip and twelve others died later on, the last about 90 days after the first.

Plaintiff testified that the fifty cattle cost $2,250 at Kansas City, which sum was presumably the market value of the entire fifty. He was inquired of as to the market value of the cattle at the time they arrived in Youngstown. He first stated that he did not consider a value at that time but subsequently stated, “If I would have to bought them in the condition they were in when I unloaded them — oh, about 20 to 25 dollars ’ ’ per head.

No other witness testified as to the market value of these cattle at any time, and we observe that no one testified to the market value of the cattle at the time plaintiff claims they should have arrived in Youngstown; neither did anyone testify to the market value of any particular steer either at the time of the shipment or at the time the cattle arrived in Youngstown or at the time plaintiff claims they should have arrived iii Youngstown. Except that the cattle were covered with manure when they were first observed in the car upon arrival at Youngstown and the further fact that they appeared weak and were lying down in the barn of plaintiff after being removed from the car, no one testified to any damage to any of the cattle except those that died subsequent to their arrival in Youngstown.

It is quite apparent from the contract of shipment that there was no duty upon the part of the carrier to see that these cattle did not make manure in the car while en route or to see that they did not lie down in such manure during the trip. The carrier was not required to furnish a chambermaid or valet to see that the cattle were kept clean during the trip. Plaintiff did not choose to accompany the cattle or procure anyone to accompany them.

The evidence is clear to the effect that during a great part of the trip the temperature varied from about 32 degees to 65 degrees Fahrenheit and that it rained a considerable portion of the time these cattle were on the way. For neither the rain nor the temperature was the carrier responsible.

The evidence clearly indicates that,the cattle were carried with dispatch from Kansas City to Chicago, where they were removed from the car, placed in pens, allowed to rest for six hours, during which time they were furnished hay and after two hours from their removal from the car were given all the water they desired, and that there was no delay in returning them to the ear and proceeding with the journey.

The evidence of defendant, through its managing officers, clearly shows the trains upon which these cattle were shipped, and that the Baltimore & Ohio train carrying them from Chicago to Youngstown was due to arrive in Youngstown at 11:30 p. m., October 31. Defendant’s supervisor of freight transportation, having charge of 'the records of the movements of all trains of defendant, testified that a car of livestock leaving Chicago at 1:10 a. m., October 31,1941, was dne at Youngstown at 11:30 p. m. the same day. This car arrived at the Haselton yard at 11:20 p. m., October 31, that being the delivery yard for the Youngstown territory. From the Haselton yard of the defendant, it was necessary to move the car of cattle to the team-track delivéry point, the evidence further showing that there is no set schedule for such movement ‘ ‘ but a movement from two to three hours would be reasonable,” so that a car of cattle arriving at the Haselton yard at 11:20 p. m., October 31, would be due on the team-track any time between 1:20 and 2:20 a. m. of November 1.

There is no dispute in the record that these cattle began their journey from Kansas City within an hour or two from the time they were loaded upon the car at that point; that although plaintiff had ordered a 36-foot car for such shipment, the company furnished him a 40-foot car.

- The records of the company clearly show that there was no delay, and it is not shown otherwise than that the cattle were sent out from Chicago upon the first available train after the rest period above referred to, such rest period being required by law and the ser-' vice in connection therewith having been performed by Western Livestock Service. There is no evidence of delay or failure to properly care for these cattle during the rest period at Chicago, so that the claim in this case as to delay in this shipment arises solely from the evidence that the freight agent at Youngstown misinformed plaintiff as to the time the car would arrive at its destination. The record does not show that plaintiff informed the freight agent at Youngstown as to the time the car left Kansas City or the number- of the train upon which it was being carried. It seems quite clear that the'best and conclusive evidence of the time this car should have arrived in Youngstown is the evidence given by the supervisor of freight transportation who had before him all details of the shipment.

But let us assume that the car should have arrived in Youngstown at 8 o’clock p. m. on October 31, and that six hours intervened before the car was placed on the unloading track. With all the evidence in this record, we are convinced that there is no foundation for a finding by the jury of negligence on the part of defendant which caused an unreasonable delay in the shipment. The whole record clearly shows that these cattle were carried upon the first trains available; that there was no rough handling of the car or negligence of defendant which gave rise to the cattle contracting the disease from which thirteen of them died. On the contrary, the evidence of four veterinarians is contained in the record, all of whom testified that iii the process of shipment cattle get much excited because that is an unusual experience to them; that in the ordinary course of shipment they become weakened, frequently refusing to eat, and their resistance becomes lowered; that the germ which produces the disease from which these cattle died is inherent in cattle at all times; that the disease may be produced by contact with other cattle either on the farm or in the stock pens; and particularly that the symptoms of the disease do not develop immediately and only appear after an inoculation period of not less than two days, three of- the veterinarians agreeing that such symptoms would not appear less than four to five days after inoculation.

Plaintiff testified that he had been purchasing cattle at Kansas City for a considerable length of time and had caused considerable shipments of cattle to be made from that city to Youngstown; that he knew cattle became excited in shipment and “drifted,” that is, lost weight to the extent of about 10 per cent in transportation; that he knew cattle always become weakened and tlieir resistance lowered during such transportation; that these were the first cattle he ever had, vaccinated before loading at Kansas City; and that he never before had any of his cattle contract the particular disease en route.

The query arises as to whether plaintiff had some information before the cattle left Kansas City that they had been exposed to infection by the disease for which he had them vaccinated upon this particular occasion.

From the evidence, it seems quite apparent that the condition bringing about the death of these cattle or any weakness from which they were suffering as the result of the trip could not have come into existence because of negligence of the carrier. It may well be that because of the rain and the temperature variations the time was not propitious for the shipment of the cattle, but plaintiff selected such time and the defendant cannot be held responsible therefor.

The only delay that could possibly have existed in this shipment arose from the time it took to move this car of cattle from the Haselton yard in Youngstown to' the unloading track in that city, and there is no showing that the period consumed in that operation was unreasonable. Certainly it was not delay in that operation which brought about the condition from which a part of these cattle died.

We think it well settled that in an action for damages for delay in shipment, it must be shown that the delay was unreasonable and due to the negligence of the carrier, and that the measure of damages- due to delay, as distinguished from damages due to rough handling, is the difference in the market value of the cattle at the time they actually arrived at their destination and their market value at the time they should have arrived. There is no evidence in the record from which the jury could have determined such damage under the prevailing rule.

It is our conclusion that reasonable minds could not arrive at a finding of unreasonable delay upon the part of defendant and that there is no evidence in the record upon which the jury was warranted in finding any damage of plaintiff due to unreasonable delay upon the part of the defendant.

The judgment of the Common Pleas Court is reversed and final judgment entered for the defendant.

Judgment reversed.

Phillips, P. J., and Carter, J., concur.


author: Doyle, J.

text:
    Nicholl, Exr., Appellee, v. Bergner et al., Appellees; Bergner, Appellant.

      (No. 1103
    Decided May 18, 1945.)

      Mr. 11. II. Rice, for appellee Harry Nicholl, executor.

      Messrs. Lemert <& Lemert and Mr. Wayne G. Blade, for appellee Edward G. Bergner.

      Mr. Alexander Mints, for appellant.
   Doyle, J.

This action was commenced in the Probate Court of Lorain county to construe the will of Prances Nicholl, deceased.

The single question in controversy related to .a latent' ambiguity in respect to the identity of one of the beneficiaries. A one-seventh part of the residuary estate was given to one “Edward Bergner.” The evidence disclosed two relatives who could be the natural objects of her bounty — one a brother named Edward G. Bergner, and the other a nephew named Edward C. Bergner. There is no doubt that she meant one or the other, and each claimed the share.

The trial court determined from the evidence that the brother — Edward G. Bergner — was the one intended, and so adjudicated the issue. The nephew— Edward C. Bergner — has appealed oil questions of law from that judgment.

The appellant charges error in the refusal of the court to permit the introduction into evidence of the testimony of Miss McCauley, a niece of the testatrix, that the testatrix had said to her, “he won’t like it”; “brother Ed. Bergner won’t like the will.”

In so ruling we are of the opinion that the court erred. While the proffered declaration gave rise to but a remote inference that the testatrix did not intend her brother to be benefited, nevertheless it should have been received under the rule that, where there is a latent ambiguity as to an intended beneficiary, oral declarations of a testatrix which have a bearing on the identity of the person intended are admissible in evidence. The rule is concisely stated by Chief Justice Puller in Goulam v. Doull, 133 U. S., 216, 33 L. Ed., 596, 10 S. Ct., 253, in the following terms:

“2. Where a devise is, on the face of it, clear and intelligible, yet from external circumstances an ambiguity arises as to which of two or more things or persons the testator referred to, it being legally certain that he intended one or the other, evidence of his declarations, of the instructions given for his will and of other circumstances of the like nature, is admissible to determine his intention.”

See, also, 94 A. L. R., 275, and cases cited; 41 Ohio Jurisprudence, Wills, Section 506; Painter v. Painter, 18 Ohio, 247; Townsend's Exrs. v. Townsend et al., 25 Ohio St., 477; Charch v. Charch, Exr., 57 Ohio St., 561, 49 N. E., 408.

The appellant claims further error in the admission in evidence of the testimony of the testatrix’s lawyer. It appears that the attorney who drew and witnessed the will was called as a witness' by the brother and was asked the following question: “Do you recall the testimony offered to the effect that Mrs. Nicholl, on the way to the hospital with Miss McCauley, said ‘he wouldn’t like it,’ referring to a provision in the will? Tell us whether or not you have had any conversation with the decedent, Mrs. Nicholl, in which she used language of a similar nature.” To which he answered: “At the time of the first will that I drew for Mrs. Nicholl — and the residuary clause of that will was identical with the residuary clause of this will in question, dividing in seven shares and the same language used — I recall very distinctly her making this remark: ‘My brother Ed. may not like it, because I have cut his share from two-elevenths' with other provisions for his daughters to a one-seventh in this will.’ ”

This evidence should not have been admitted.

“2. Section 11494, General Code, disqualifies an attorney from testifying ‘concerning a communication made to him by his client in that relation, or his advice to his client, ’ except by the express consent of the client, and when a testator procures his attorney as a subscribing witness to his will he by that act expressly consents that the attorney may testify as fully as any other subscribing witness touching the capacity of the testator or any other fact affecting the validity of the will. The object of requesting a person to witness a will is to assure the legal execution of the will and preserve the evidence thereof.” Knepper v. Knepper, Exr., 103 Ohio St., 529, 134 N. E., 476.

A declaration made to an attorney by his client in that relation cannot be given in evidence through the testimony of the attorney in an action construing a will, even though the attorney is the scrivener of and a subscribing witness to the will of his client. Under such circumstances, there is no presumption of the waiver of the statutory incompetency and the attorney cannot testify to declarations of his client bearing upon the intention, meaning or effect of the various provisions in the will.

The attorney whose testimony is challenged prepared two wills for Mrs. Nieholl — one in 1941, which was destroyed, and the one of 1942, now under consideration. His testimony related to a statement which referred to a change which was made in the first will prepared by him (1941), from a clause in a preceding will which she had executed through another attorney. The remarks of the testatrix were in reference to that situation, and were not in reference to the will for which a construction is here sought.

While we hold the testimony of the attorney to have been erroneously received, and the testimony of the witness McCauley to have been erroneously rejected, we do not, under the circumstances of this case, determine that such rulings constitute error of a prejudicial nature, warranting a reversal. The testatrix had executed several wills prior to the one in force at the time of her death. In every one of them she had named her brother as a beneficiary and had not named her nephew, and in each of them she had designated him as “Edward Bergner.” This, and other evidence' which indicated her solicitude for her only remaining brother, is so convincing that there seems to be no doubt of her intention; and the erroneous rulings on evidence which created, at best in this case, but a remote inference of the testatrix’s' intention, we do not believe prejudicial.

The members of this court are of the opinion that substantial justice has been rendered, and that none of the claimed errors are errors of a prejudicial nature.

The judgment will therefore be affirmed.

Judgment affirmed.

Washburn, P. J., and Stevens, J., concur.


author: By the Court.

text:
    The State, ex rel. Caton, v. Industrial Commission of Ohio.

      (No. 3783
    Decided February 21, 1945.)

      Mr. Hyman 8. Topper, Mr. Isadore Topper and Mr. Abraham Gertner, for relator.

      Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Albertus B. Conn, for respondent.
   By the Court.

This is an action in mandamus, originating in this court, to. require the respondent to hear and determine relator’s claim upon the merits.

The facts alleged by the relator in his petition are that he sustained certain injuries on May 28, 1935, in the course of and arising out of his employment with the city of Toledo, an employer amenable to the provisions of the Workmen’s Compensation Act. He made out a proof of claim on May 4, 1937, and delivered it to one G-eorge I. Brown, Jr., personnel claims adjuster for the city of Toledo, and he delayed the filing of relator’s application with the' Industrial Commission of Ohio until July 19, 1937, a date more than two years after the alleged injury to the relator. After several hearings, the claim was denied by the Industrial Commission £<on the ground that the application for compensation was not filed within two years from the date of the alleged injury, and the claim is therefore barred under the provisions of General Code Section 1465-72a.”

The relator contends that the date of the filing of his claim was on May 4, 1937, within the two-year period, as it was on that date that he filed it with the claims adjuster for the city.of Toledo, who was an agent by estoppel for the Industrial Commission.

It will be noted that the petition states that the claim was not filed with the Industrial Commission until July 19, 1937.

Section 1465-72a, General Code (108 Ohio Laws, pt. 1, 319), read as follows:

“In all cases of injury or death, claims for compensation shall be forever barred,-unless, within two years after the injury or death, application shall have been made to the Industrial Commission of Ohio or to the employer in the event such employer has elected to pay compensation direct.”

The Workmen’s Compensation Act is in its entirety a statutory provision and grants to workmen and their dependents only the rights specifically enumerated. None of the requirements of this act can be waived. A like issue was adjudicated in State, ex rel. Roger, v. Industrial Commission, 37 Ohio Law Abs., 509, 48 N. E. (2d), 114, where the court held:

‘ ‘ Claimants under the industrial insurance act have only such rights as are prescribed by statute. If provisions of the statute or applicable rules provide things must be done within a certain time, this is jurisdictional and neither the commission nor the courts have any right to waive it.”

The theory of agency by estoppel may not be invoked against the respondent, as there is no claim that the so-called agent was named by it pursuant to any statutory authority.

“The state can act only by its agents, duly authorized by law; and since public officers cannot bind the government they represent by acts outside their express authority, even though within their apparent powers, it is only where officers of the state perform their acts agreeably to the authority delegated them that the state is bound.” 37 Ohio Jurisprudence, 248, Section 24.

The relator has argued quite extensively as to whether the function of the Industrial Commission is governmental or proprietary, but in view of the authorities just quoted we believe that fact to be immaterial. We, therefore, hold that the date the claim was filed with the Industrial Commission is the one that controls and not the date the claim was filed with the claims adjuster for the city of Toledo. The requirements of Section 1465-72®, General Code, were mandatory and must have been complied with.

The demurrer to the petition is sustained and leave is granted to relator to amend within rule.

Demurrer sustained.

Hornbeck, P. J., G-eiger and Miller, JJ., concur.


author: Hornbeck, J.

text:
    Roberts et al., Appellees, v. Grable, Appellant.
    (No. 1823
    Decided December 30, 1944.)

      Messrs. Matthews, Matthews & Alticlt, for appellees.

      Mr. T. L. Barger, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, affirming a finding and judgment of the Municipal Court of the city of Dayton, Ohio, in favor of the plaintiffs and against the defendant in the sum of $68.39 with costs.

The errors are assigned under eleven heading’s, but we shall, as have counsel for the plaintiffs, consider them generally.

The action was instituted by the filing of a statement of claim to which a motion was filed by the defendant to require plaintiffs to elect which one would proceed to trial. This motion was overruled.

Defendant then moved to strike the first specification of negligence, which motion was overruled, and then demurred to the statement of claim, reasserting both propositions urged by the motions in somewhat different form. The demurrer was overruled.

The cause then came on to be heard without a jury. Defendant filed no statement of defense. This would, unless waived by common consent, have placed the defendant in default for pleading, which would have permitted the trial judge to resolve against the defendant every material allegation of the statement of claim, and to have accepted such allegations as true.

However, the cause proceeded, testimony was taken and counsel for defendant closely examined plaintiff Roberts. The proof parallels the allegations of the statement of claim.

The facts developed are :

Plaintiff Roberts was, on February 22, 1942, driving his De Soto sedan southwardly on Main street in the city of Dayton between First and Second streets. Traffic was heavy and ás Roberts, who was fourth in line, approached the intersection of Second and Main streets, the red light was given at the intersection, and he and the automobiles in front of him came to a stop. At or about the time he had completely brought his car to a stop, he was run into from the rear by the defendant, causing damage to Roberts’ automobile for which he sued and which is represented by the judgment in the Municipal Court. The statement of claim asserts that plaintiff Roberts was insured with the plaintiff insurance company, and that by reason thereof, and because of the property damage occurring in the collision, such company paid Roberts the sum of $55.14.

The specifications of negligence were: Violation by defendant of the “assured clear distance ahead” provision of Section 6307-21, General Code, and neglect and failure to keep a proper lookout ahead.

We have been favored by the written opinion of Judge Wolff, on the original submission of the cause, and we could well be content to accept the conclusions there reached and the reasons therefor. We will, however, briefly, without any attempt to cite many authorities, discuss the errors assigned. It is claimed that the demurrer of the defendant should have been sustained, because of the misjoinder of parties and the misjoinder of causes of action; this upon the theory that the parties did not have a right to maintain a joint action, and that subrogation of the insurance company to the rights of Roberts did not take place as a matter of law.

Under the facts pleaded and proven, the insurance company paid Roberts under its obligation on the policy which he held with it. The amount paid did not represent the total damage claimed by Roberts. Clearly the payment to Roberts under the policy subrogated the company to his rights pro tanto, and their interests can be joined. Globe Ins. Co. v. Sherlock, 25 Ohio St., 50, 68; Lake Erie & Western Rd. Co. v. Falk, 62 Ohio St., 297, 56 N. E., 1020.

It is alleged that the motion to strike and the demurrer should have been sustained as to the first specification of negligence because in alleging that the “assured clear distance ahead” provision of Section 6307-21, General Code, had been violated, plaintiffs failed to allege further the rate of speed at which the defendant was driving at the time of the collision. The defendant relies on that part of the section following the designation of rates of speed which are prima facie lawful, which is as follows: have driven, also, the speed, if any, which this section declares shall be prima facie lawful at the time and place of such alleged violation.” (Emphasis ours.)

“It shall be prima facie unlawful for any person to exceed any of the speed limitations in this or in other sections of this act. In every charge of violation of this section the affidavit and warrant shall specify the time, place and the speed at tohich the defendant is alleged to

There is considerable support for the claim of the defendant on this assignment of error. However, if the motion to strike ought to have been sustained, it does not appear that the defendant was prejudiced, because we do not have in the judgment entry any finding of fact which enables us to determine conclusively that the judgment was predicated upon the first specification of negligence. It may have been based upon the second.

The demurrer was properly overruled because there were two specifications of negligence, the second of which was properly pleaded.

It is claimed that plaintiff Roberts violated several of the traffic regulations of the General Code, particularly Sections 6307-21, 6307-34(a), 6307-38(a), and 6307-39.

Without discussing these sections in detail and at length, it must be observed that, in the first instance, we have no finding of fact by the trial judge, but if it be assumed that plaintiff Roberts violated one or more of these sections and such violation was negligence, there is left the question whether such negligence was the proximate cause of the collision between Roberts and the defendant as a matter of law. We may not so hold. It was a factual question to be resolved, which, upon the general finding, we must assume was determined against the defendant. See the recent case of Glasco v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210.

We find no prejudicial error in any of the particulars assigned.

Tlie judgment will be affirmed and the cause remanded.

Judgment affirmed.

Geiger and Nichols, JJ., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.


text:
    Emley, Exr., Appellee, v. Selepchak, Appellant; Emley et al., Appellees.
    (No. 198
    Decided June 11, 1945.)

      Mr. Raymond B. Bennett, for appellee John Emley, as executor, and John Emley, individually.

      Messrs. Ainsworth S Gilbert, for appellant.
   Doyle, J.

This is an action in specific performance, maintained by one Mike Selepchak against his brother, John Emley, as executor of the estate of their mother, Annie Selepchak, and against all of his respective brothers and sisters, individually, as heirs, devisees and legatees.

The action, arises by way of cross-petition, and John Emley, in his capacity as executor, as well as in his individual capacity, is the sole contestant. • The 'respective brothers and sisters other than Emley are either in default of pleadings, or by their pleadings have joined in the prayer of the claimant.

The cause is in this court for trial de novo, on appeal from the Court of Common Pleas of Medina county.

The claimant seeks an order to compel the three devisees of a certain farm property to perform a con-, tract entered into by the mother, by delivering to the clerk of courts a deed conveying the said farm to bim upon his payment to the clerk of courts of a balance due on the contract in the sum of $4,000. It is claimed that the mother, five days before her death, executed a new will (thereby revoking a former will) in which she devised the farm to three brothers of claimant, and in so doing breached a valid contract with the claimant, under the terms of which he was to have the property upon her death.

From the evidence in the record it is reasonable to conclude that, in the year 1924, the claimant and his family moved onto the farm in question and worked it for approximately ten years. He then moved to another farm, and, while there residing, was repeatedly importuned by the mother to return to her farm and again work her property. He finally consented and returned, under the terms and conditions of an oral agreement made in the presence of a third person, who testified to the conversation.

In short, this agreement was that the mother would give the son the farm at her death; conditioned, however, upon the son paying at her death the sum of $4,000 for certain specific legacies. This agreement was entered into in January of 1938, and during the following month the claimant moved to the farm in question and has since there resided.

In December of the same year, both the mother and son called upon attorney E. W. Valko, of Cleveland, for the purpose of a definite understanding of their contractual standing. The attorney testified, over objection: “Mrs. Selepehak said she wanted to make .some sort of agreement or paper in writing, whatever is necessary, that she wants to give Mike the farm, and Mike said to her that they had an understanding before but that he wasn’t going to continue on the farm unless he was sure of the farm after her death, a lot of improvements were necessary, unless there was a definite understanding between them that he will remain as the sole owner after her death. And we discussed various ways and means of doing it.”

The attorney further testified that each one said that “they had made arrangements before coming that Mike was to have the farm, that Mike was going to remain on the farm, that he was to pay certain legacies which were a charge on the farm.”

Continuing, the attorney testified that he prepared and had executed a will for the mother and ‘ ‘ an instrument giving Mike a life rent in order to protect Mike. Mrs. Selepehak wanted to know what I could draw up so that lie would not be disturbed by her or any of her relatives. I suggested that a lease be given during that time, her lifetime, terminating on her death and on Mike paying the legacies and he would havé the farm.”

-The executed will and lease to which reference is made are before us in evidence. The will specifically devised the farm property to the'claimant son “to be his absolutely and in fee simple, subject only to the payment of the legacies heretofore provided * * V’

Under this and other language, the devise was charged, in the amount of $4,000, with the payment of legacies to four of her children. The lease conveyed the premises to the claimant for a term extensive with the grantor’s life, subject to payment of rent, taxes, insurance, -etc., and further subject to a reservation to the lessor during her lifetime to all rights and benefits to be derived from a natural gas lease; “it being understood that by this agreement no interest to said well passes to the lessee during the lessor’s natural life.”

1. In our consideration of the problem before us, we believe it sufficient to confine ourselves only -to the rules applicable to an action in equity for the specific performance of an oral contract to devise real property.

• We pronounce the rule as follows: An oral agreement to convey or devise land at the death of the promisor may, upon breach by the promisor, be specifically enforced in equity notwithstanding the statute of frauds and the statute applicable to agreements to make a devise by will (Sections 8621 and 10504-3a, General Code, respectively), where the agreement has been performed by the one seeking to enforce it, by taking possssion and paying rent, taxes and insurance under the provisions of a written lease for the life of the lessor and by making valuable improvements upon the estate, under the terms of the agreement, to such an extent that he cannot be restored to his original situation. See Derby v. Derby, 248 Mass., 310, 142 N. E., 786; Ayres v. Cook, 140 Ohio St., 281, 43 N. E. (2d), 287; and cases cited supporting text in 37 Ohio Jurisprudence, Specific Performance, Sections 93 and 121.

The complainant in this case retained possession under the lease, oral agreement, and will executed pursuant to the oral agreement, made improvements at a cost of approximately $5,000 on property appraised in October, 1943, for $7,500, and paid the stipulated rent, taxes and insurance. Under these circumstances, we determine that the evidence in the record clearly and convincingly shows that equity should grant the relief sought, following a breach of the contract in the revocation of the will executed in pursuance to the original agreement.

2. Is the testimony of attorney Valko competent1? It is vigorously challenged in the record.

A part of the evidence presented to prove the contract to convey by will the farm in question is the testimony of the attorney, who, as heretofore shown, testified to statements made and conversation had in his office and in his presence. The direct evidence and the natural inferences from it are such as to warrant the conclusion that the mother and son selected the attorney to represent each of them, and sought his advice and help in respect to a contractual relationship between them. It is asserted that this situation requires the application of the statute entitled “Privileged Communications and Acts,” and makes the testimony objectionable. This statute — Section 11494, General Code — in so far as pertinent, provides:

“The following persons shall not testify in certain respects:
“1. An attorney, concerning a communication made to him by his client in that relation, or'his advice to his client * *

It is universally held, under statutes exactly or similarly worded, that the communications must be confidential before the privilege will be applied, and as a result thereof exceptions are made to the strict letter of the law.

‘ ‘ One of the circumstances, by which it is commonly apparent that the communication is not confidential, is the presence of a third person, not being the agent of either client or attorney * * VIII Wigmore on Evidence (3 Ed.), 602, Section 2311.

And, see, Foley v. Poschke, 137 Ohio St., 593, 31 N. E. (2d), 845; Whigham v. Bannon, Admr., 21 Ohio App., 496, 153 N. E., 252.

Another exception, based upon the same principle of confidentiality, is “when the same attorney acts for two parties having a common interest, and each party communicates with him. Here the communications are clearly privileged from disclosure at the instance of a third person. Yet they are not privileged in a controversy between the two original parties, inasmuch as the common interest and employment forbade concealment by either from the other * * V’ VIII Wig-more on Evidence (3 Ed.), Section 2312.

We conclude that the testimony of lawyer Valko was not privileged in this action.

A decree will be prepared ordering specific performance.

Decree accordingly.

Washburn, P. J., and Stevens, J., concur.