text:
    Eastern Motor Dispatch, Inc., Appellant, v. Pennsylvania Rd. Co. et al., Appellees.
    (No. 4050
    Decided November 14, 1947.)

      Messrs. Cowan, Adams <& Tyler and Mr. James■ E. Buchan, for appellant.

      Messrs. Burr, Porter, Stanley & Treffinger and Mr. Charles S. Gillispie, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, in which the court, at -the close of all the evidence, directed the jury to return a verdict for the defendant railroad company. The plaintiff claims the trial court erred in directing the verdict and in entering judgment for the defendant.

This is an action for damages growing out of a collision between plaintiff’s tractor-trailer and a train operated by the defendant company at a grade crossing located in Franklin county and outside a municipality. The collision occurred where James road, a public highway, crosses the defendant’s right of way-The highway extends in a northerly and southerly direction and the defendant’s right of way in an easterly and westerly direction.

On February 3, 1943, at about 7:55 o’clock p. m. the-plaintiff’s tractor-trailer was being driven in a northerly direction on the highway and while crossing the-tracks of defendant company, the trailer was struck by a fast moving passenger train which was proceeding in an easterly direction.

The plaintiff alleged seven specifications of negligence against the defendant company, two of which* were stricken on motion at the close of the plaintiff’s', case for lack of sufficient proof. The allegations of negligence remaining were: That the train was being operated at an excessive rate of speed; that a whistle signal was not given; that a bell was not sounded; that the watchman employed by defendant company at the crossing failed to warn the driver of plaintiff’s tractor-trailer of the approach of the train; and that the watchman failed to use stop signal or lantern in view of the driver, but stood motionless without giving any signal whatever.

Assuming that defendant company was negligent,, the question for determination is whether the plaintiff was chargeable with contributory negligence. Before-directing a verdict for the defendant the court was required to interpret the evidence most favorably to the plaintiff. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 482, 189 N. E., 246; Bauer v. Cleveland Ry. Co., 141 Ohio St., 197, 204, 47 N. E. (2d), 225; Wilkeson v. Erskine & Son, Inc., 145 Ohio St., 218, 229, 61 N. E. (2d), 201. After construing the evidence most strongly in favor of the plaintiff, if reasonable minds could reasonably arrive at but one conclusion, which was adverse to the plaintiff, it was the duty of the court to direct a verdict for the defendant. 39 Ohio Jurisprudence; 794, 795.

Was the driver of plaintiff’s vehicle guilty of negligence which contributed as a proximate cause of the collision? The evidence shows that there were three tracks on defendant’s right of way; the south track, being the first track to be crossed as the driver approached the crossing from the south, was an east-bound slow moving freight track; the next track, being the middle track, on which the train was moving, was :an eastbound mainline track; the third track, being on the north side, was a westbound mainline track; that the south track was 13 feet south of the eastbound mainline track; that on the southeast corner of the crossing there was a one-story residence which was located 30 to 40 feet south of the track; that there was a shed back of the house to the west and to the north of this residence; and that some distance west of the dwelling there were tank cars standing on the track. In construing the evidence most strongly in favor of the plaintiff, the conclusion may reasonably be drawn that the driver of plaintiff’s vehicle stopped as he approached the crossing, saw no train approaching, saw the watchman on the north side of the tracks waving a red and white lantern, and then started across, and as he was crossing the tracks he happened to look down the tracks and saw the train approaching, whereupon he stepped on the gas to get out of the way. The tractor cleared the track but the trailer was struck on the left side by the locomotive. The tractor-trailer has a combined length of 38 feet.

The driver was chargeable with the duty to look and listen, and to do so at a time and place and in a manner to make the looking and listening effective. Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714; Fox v. Conway, 133 Ohio St., 273, 276, 13 N. E. (2d), 124; Patton, Admx., v. Penna. Rd. Co., 136 Ohio St., 159, 163, 24 N. E. (2d), 597; Grove, Admr., v. City Ry. Co., 78 Ohio App., 37, 42, 64 N. E. (2d), 429.

If the driver failed to exercise due care in driving across the defendant’s tracks he was guilty of contributory negligence which would prevent recovery. However, the defendant company employed a watchman at the crossing, whose duty it was to warn persons-o'f approaching trains. Whether the driver exercised due care in driving across the tracks must be determined in view of the conduct of the watchman. In Cleveland, C., C. & 1. Ry. Co. v. Schneider, 45 Ohio St.,, 678, 17 N. E., 321, in the third paragraph of the syllabus the court held that:

“Persons approaching the crossing or about to cross have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duties, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties. Hence an open gate with the gateman in charge is notice of a clear track and safe crossing, and in the absence of other circumstances, when the gates are open and the gatemen present, it is not negligence in persons approaching the crossing with teams to drive at a trot, or pass on to the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor in such, case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or more from the crossing, negligence, though they could have been seen.”

That case has been frequently cited and commented -on with approval. We do not find where the Supreme Court has ever disapproved of the holding in that case, •and for this reason we conceive it still to be the law. In Columbus, Delaware & Marion Electric Co. v. O’Day, Admx., 123 Ohio St., 638, 176 N. E., 569, the court held:

“The presence of an automatic signal alarm, voluntarily instituted and operated by an interurban railway company at a city street crossing, does not absolve a traveler upon the highway from the exercise of the care that a reasonably prudent person would exef•cise under all the circumstances. Such care upon the part, of a driver of an automobile includes the obligation of exercising the faculties of sight and hearing, when such driver is far enough from the railway track to be able to stop his automobile before reaching the crossing.”

In Thomas v. Penna. Rd. Co., 70 Ohio App., 191, 45 N. E. (2d), 776 (opinion by Judge Geiger of the Sec-mid Appellate District), it is held:

“Where a crossing watchman, standing at his post in full view of a truck driver on the highway approaching the crossing, does not at any time raise his ■semaphore or give any. warning of an approaching train, the truck driver’s view of the tracks in one direction is impaired by trees, brush and poles, and no whistle or bell on an approaching train is sounded, the truck driver is not guilty of contributory negligence as a matter of law in relying upon the crossing watchman to signal in case of danger from approaching trains.

“The watchman’s conduct in such case, in standing at the crossing in full view of approaching motorists, with his stop sign in his hand but not raised, and not giving any signal to stop or indication that there is danger, is an invitation for the truck driver to cross the tracks.”

The evidence in the case at bar most favorable to plaintiff’s case is found in the testimony of the driver of plaintiff’s vehicle, who testified as follows:

“Q. Mr. Pulsipher, wTe would like to know just the truth of what happened at that time. A. * * * And as I come onto the switch 1 slowed tip and there is a building there, and I think there was some tank cars sitting there, and l slowed up and dropped the truck into third gear and, started across the tracks. I saw the watchman standing over by the shanty waving a red light and a white light. So when I saw him waving these lights, 1 thought he was motioning for me to come across, so I started across the track and l happened to look down the track to the west and I saw a train coming. My only thought was to get out of the way and I stepped on the gas as hard as I could, and I thought I missed it, and just then I heard the whistle of the train. I realized it was coming pretty fast, by the sound. The watchman never gave me any sign to stop or never whistled or raised his light or hollered or nothing, so I cleared the track and the thing hit me * * (Italics ours for emphasis.)

On cross-examination he testified as follows:

“Q. Now you say that as you came up to the crossing, did you say you stopped or did not stop? A. I stopped at the side track that goes along past that building, also stopped there.and shifted.

“Q. Did you look to the west? A. Well, I looked, I couldn’t see anything at the time.

“Q. I just asked you if you looked; answer yes or no. A. Yes, I looked.

“Q. And at that time you saw the watchman waving a red and white lantern? A. Yes.”

With respect to the driver’s first observation of the approaching train, he testified as follows:

“Q. Mr. Pulsipher, what track were you on when you first saw the train approaching? A. I was on the main track, mainline, right in front of the train. ’ ’

Does this evidence show the driver of plaintiff’s vehicle to be guilty of contributory negligence as a matter of law? We think it does not. At once a question arises as to whether the waving of a red light and a white light by the watchman, not at his post of duty, was a signal to the driver to stop or an invitation to cross. The driver interpreted the signal as an invitation to proceed. Whether he was right in believing the watchman signaled him to proceed was a question of fact to be submitted to the jury. If the signal was to stop, the driver was guilty of contributory negligence in proceeding to cross; but if the signal was an invitation to proceed, under the authorities cited, the driver had a right to assume the track was clear, and in proceeding to cross he was not guilty of contributory negligence as a matter of law. In view of the conduct of the watchman in waving both the red and white lights a factual situation was presented which should have been presented to the jury in determining whether the driver under all the circumstances exercised due care in driving across the tracks: In construing the evidence most strongly in favor of the plaintiff we are of the opinion that reasonable minds could reasonably arrive at different conclusions. There was evidence introduced in support of the specifications of negligence alleged in plaintiff’s petition. On this state of the record the motion of defendant for a directed verdict should have been overruled and the case submitted to the jury.

Judgment reversed and cause remanded.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Schaefer, Appellant, v. Winkler, Appellee.
    (No. 6947
    Decided April 26, 1948.)

      Messrs. Bates, SMrvin & Varnau, for appellant.

      Messrs. Bale & Bale and Mr: Cedric Vogel, for appellee.
   By the Court.

This is an action by a real estate agent to recover a commission for finding a purchaser for real estate under a contract of employment with the defendant.

In his amended petition the plaintiff alleged the defendant “orally agreed for obtaining a purchaser for said, property to pay him a commission of five (5) per cent of the sale price of the property. ’ ’ In substance, plaintiff alleged that he found the purchaser to whom the defendant sold the property for $28,300, upon which amount he alleged his commission should be calculated. The defendant denied the employment and all other allegations.

The trial court sustained a motion for an instructed verdict at the close of the plaintiff’s evidence. Judgment was entered on the verdict, a motion for a new trial was overruled, and this appeal to this court was taken.

There is evidence in the record that the plaintiff introduced one Makstaller to the defendant as a prospective purchaser, and there is also evidence tending to prove that the person who purchased the property from the defendant was in fact acting for Makstaller. There is no evidence that the plaintiff knew anything about the sale at or before it was consummated. And there is no evidence that the plaintiff ever submitted any offer on behalf of Makstaller or anyone else.

The plaintiff was the only witness who testified to the terms of an employment. On the subject, he testified to a conversation between him and defendant as follows:

“He said, ‘Well, the third building is now for sale. I am asking around thirty thousand. If you will bring me an offer around that I will pay you the legal real estate board fee of commission.’ I says, ‘All right.’ * * * the following Monday I called Mr. Winkler. I said, ‘Mr. Winkler, this is Mr. Schaefer talking. We had the Makstallers over to the residence yesterday.’ He says, ‘Yes, that’s right.’ He says, ‘What are you quoting on the house?’ I says, ‘We are quoting thirty thousand dollars.’ I says, ‘Now we would like to get in the property at five o’clock. Where would we get the key? Mr. Dunlap will bring them back at five o’clock.’ He says, ‘Mr. Schaefer, I will meet you there at five o’clock and let you in.’ ‘All right,’ I says, ‘Now we are quoting the property at thirty thousand,, and they want to make a trade.’ I says, ‘We may take their property in if we can come to ■ terms. ’ I said,. ‘What is the least possible price you will take and pay a commission?’ Mr. Winkler says, ‘Mr. Schaefer,, the least possible price I will take from any one and pay the legal commission of five per cent is twenty-nine thousand three hundred.’ I says, ‘All right, Mr. Winkler, that is fine.’ ”

The property was sold for $28,300. The question is whether, construing the evidence most favorably to the-plaintiff, there was any substantial evidence to support the plaintiff’s claim to a commission on this sale..

It will be observed that according to the plaintiff’s own testimony his commission was expressly made dependent upon a sale at $29,300. It will also be-noted that plaintiff never produced a purchaser willing to pay that amount, and that the sale was for less. These facts bring the case within the rule stated in the-first paragraph of the syllabus in Dethloff v. Starbuck, 116 Ohio St., 29, 155 N. E., 552, which is:

“A contract between the owner of real estate and' a real estate broker that the latter shall find a purchaser therefor at a named price net to the owner does not entitle the broker to recover commission from, the owner unless and until the broker procures a purchaser ready, able, and willing to take the property at a price sufficiently in excess of the owner’s net price-to cover the broker’s commission.” See, also, 6 Ohio-Jurisprudence, 224, Section 50; 8 American Jurisprudence, 1102, Section 190.

The evidence shows no exclusive agency and no employment or authorization other than at will. The defendant was, therefore, free to sell the property himself or through another broker at any time without incurring any liability to pay the plaintiff a commission-The only limitation upon his freedom in this respect. was that he should not take advantage of the plaintiff’s services by knowingly selling, either directly or indirectly, to a purchaser found by him. In this case the proof is conclusive that the ostensible purchaser was not produced by the plaintiff but that such ostensible purchaser did have some kind of an understanding or agreement with the plaintiff’s customer as soon as she acquired title, and that she did transfer it to him almost at once. That, however, falls short of tending to prove that the defendant was a party to, or knew of this arrangement at the time he entered into the contract to sell. We have searched the record for evidence tending to charge him with knowledge and have reached the conclusion that there is no substantial evidence upon which such an inference could be predicated. We are, therefore, of the opinion that the plaintiff could only recover by proving that he had produced a purchaser ready, willing, and able to pay $29,300 for the property in accordance with his authorization to sell, and upon which his right to a commission depended. This, he failed to do.

For these reasons, we find that the trial court did not err in sustaining the defendant’s motion for an instructed verdict. Nor do we find any other error in the record.

The judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, P. J.

text:
    Sugar, d. b. a. Central Ohio Fruit Co., Appellee, v. National Transit Corp., Appellant.
    (No. 4035
    Decided February 13, 1948.)

      Messrs.'McGhee, Rowe S Evans, for appellee.

      Mr. Vernon L. Stouffer and Mr. Albert M. Calland, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, affirming a judgment for the plaintiff rendered by the Municipal Court of Columbus in the sum of $424.35 as damages sustained by the plaintiff as the result of a shipment of frozen blueberries from Detroit, Michigan, to Columbus, Ohio, by motor 'truck operated by the defendant company.

Plaintiff alleged that defendant was negligent “in that it did not speedily deliver said blueberries after being notified they were perishable”; and “in using •defective or improper equipment and refrigeration after being so notified”; and that upon delivery in Columbus the blueberries were in a damaged and deteriorated condition due to the delay, defective or improper equipment and refrigeration.

Defendant' in its answer admitted being a common ■carrier; that it transported the blueberries and was paid the regular authorized scheduled rates for transportation of the blueberries; that the shipment was received under the terms of a uniform bill of lading which provided that the shipment was “received subject to the classification and tariffs in effect on the •date of the issue of this bill of lading”; and that the plaintiff was required to give defendant advance notice if refrigeration service was necessary and that no advance notice was given.

The defendant, appellant herein, has filed 11 separate assignments of error, the substance of which is that the court erred as follows: In finding that the •defendant was negligent in failing to provide refrigeration service; in finding that the plaintiff requested refrigeration service; in not finding that the plaintiff’s damage was caused by the acts and default of the shipper; in finding that the defendant was an insurer of perishables; in failing to consider the terms and provisions contained in the tariffs and classifications in the bill of lading; in permitting the plaintiff to-plead one theory of action and present evidence and recover upon another theory of action without amending the petition; in not finding that the judgment was-against the manifest weight of the evidence and contrary to law; in not sustaining the defendant’s motion for a directed verdict; and in finding that the-plaintiff was damaged in the amount awarded.

The evidence is undisputed that the blueberries were in a good condition when received in Detroit; that'they were thawed and damaged to such an extent that juice-was running from the cartons when delivered in Columbus ; and that in consequence the blueberries were of less value.

On the question as to whether the defendant delayed delivery the evidence shows that the blueberries were received by the defendant in Detroit on April 21, 1944, at 11:30 p. m., and that the shipment was transported 190 miles and delivered in Columbus, Ohio, on April 22, 1944, at 10:00 a. m., the period of time being the normal and regular schedule. The plaintiff claims the defendant received the shipment on April 20th instead of April 21st but the evidence does not support this-contention.

The plaintiff charges negligence in that the defendant used defective or improper equipment and refrigeration. The undisputed evidence in the case shows that the damage was caused by failure to ice the blueberries. On this issue the defendant contends that under the bill of lading the shipment was “received, subject to the classification and tariffs in effect on the date of the issue of the bill of lading.” Under the classification on file (Exception to Rule 23, Section 2 of the National Motor Freight Classification) “whenever heater or refrigerator service is necessary for the proper protection of shipment, consignor or owner shall notify carrier in advance of shipment.” The defendant contends it was not so notified. Lamont, the agent, who negotiated the sale of the blueberries, testified that he called the defendant’s office in Columbus by telephone, stated the nature of the shipment and the service required, whereupon the agent of the defendant informed him that “they didn’t have a refrigerator truck but they did use ice — dry ice.” He also testified that thereupon he “instructed them to go ahead and notify the Detroit office of the defendant company to pick up the berries.” There was sufficient evidence presented on this issue to support the conclusion of the trial court that the required advance notice had been given.

Evans, the president of the defendant company, testified that the shipment was charged, the first class rate for frozen merchandise which is the same rate charged if refrigerator service was furnished. In explaining the classification under which this shipment was received he testified that where merchandise is not packed in accordance with the classification provisions it will be charged a rate “one class higher.” The defendant contends that the shipment was not properly iced when received. However, it was not so classified by the defendant company when the shipment was received in Detroit. Evans, when questioned on this point, stated that an oversight had been made in the billing. A finding that the shipment was properly packed when received would be justified.

Evans, in testifying relative to the type of motor truck used to transport the shipment, stated ‘ ‘ the particular piece of equipment can open at the top — a semi-trailer using a tarpaulin cover.” In the bill of lading the shipment is said to consist of “200 ctns. frozen blueberries. Rush — -Perishable—Do not delay.” Regardless of the information given to defendant as to the character of the shipment by the advance notice as well as the statements made in the bill of lading, it is admitted by the defendant that no attempt was made to ice the shipment. Evans testified that although the defendant had no refrigerator equipment it did transport frozen merchandise by the use of its normal equipment; and that the shipper was expected to furnish dry ice.

Since the shipment was carried by an interstate carrier, the rights and liabilities of the parties are governed by federal statutes and decisions. Wilson v. Penna. Rd. Co., 135 Ohio St., 560, 563, 21 N. E. (2d), 865. See Title 49, Section 20 (11), U. S. Code.

The evidence in this case shows conclusively that when received the merchandise was in good condition and when delivered it was in a damaged condition. Under this state of facts the law presumes the damage was caused by the negligence of the carrier. American Railway Express Co. v. H. Rouw Co., 185 Ark., 526, 48 S. W. (2d), 220; C. & O. Ry. Co. v. Thompson Mfg. Co., 270 U. S., 416, 70 L. Ed., 659, 46 S. Ct., 318. This same general proposition of law has been followed by our Supreme Court in Wilson v. Penna. Rd. Co., supra, and Grosjean v. Penna. Rd. Co., 146 Ohio St., 643, 67 N. E. (2d), 623. See, also, 13 Corpus Juris Secundum, 546. To rebut the prima facie case it was incumbent on the defendant to produce evidence that the damage was not the result of its negligence or a breach of contractual duty in connection with the carriage. It is sufficient if the evidence offered for that purpose counterbalances the evidence by which the prima facie case is made out. Grosjean v. Penna. Rd. Co., supra. In the instant case, the lower court found, and we think properly so, that the evidence offered by the defendant did not counterbalance the prima facie case made by the plaintiff.

The defendant contends that the plaintiff cannot recover on the common-law theory since it charged the ■defendant with specific acts of negligence. The evidence adduced supports one charge of negligence and ■also a prima facie case uiider the common law. While the law is not well settled in Ohio we are of the opinion that in alleging acts of negligence the plaintiff did not ■abandon the insurer theory of the common law. In Wilson v. Penna. Rd. Co., supra, our own Supreme Court, on page 564, held:

“The defendant also contends that the petition sets forth specific allegations of negligence on its part and therefore plaintiff cannot avail himself of the presumption that otherwise would arise. It has been held that such allegations are surplusage in a cause of action of the nature involved in the case at bar.” (Cases cited.)

The defendant contends that to require it to ice the ■shipment would require the carrier to render “an undue preference and advantage not generally accorded to other members of the shipping public.” The undisputed testimony is that defendant had no refrigerator service but it did transport frozen merchandise by using its normal equipment. As pointed out above, the defendant admits it made a mistake in classifying the shipment. Under the facts in this case the defendant was required to take the necessary precautions to protect the merchandise in order to deliver it in good order at its destination. Its failure to do so renders it liable for the damage caused as a consequence of its neglect.

The court is of the opinion that none of the assignments of error is supported in fact or law.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Jackson, P. J.

text:
    Williams, an Infant, Appellant, v. The Marion Rapid Transit, Inc., Appellee.
    (No. 1001
    Decided May 12, 1948.)

      Mr. Colonel G. L. Yearich, Mr. R. N. Larrimer and Messrs. Martin & Reed, for appellant.-

      Messrs. Wilhelm & Robinson, for appellee.
   Jackson, P. J.

The appeal is one on questions of law.

A demurrer to the petition of the plaintiff was sustained in the court below. The petition was dismissed and judgment was rendered in favor of the defendant, which is the judgment from which this appeal is taken.

The petition of the-plaintiff alleges that the plainT tiff is an infant and files her petition by her next friend and father; that on the 4th day of April 1941 the plaintiff was an existing viable child and her mother Ruth Williams, now deceased, was then pregnant with her; that plaintiff was born, prematurely, within seven months; that on the aforesaid date the mother of the plaintiff was a paying passenger on a bus operated by the defendant, The Marion Rapid Transit, Inc.; that the defendant, its agents, servants and employees so negligently operated the bus that the mother of the plaintiff fell from the steps of the bus and suffered injuries to her left side, back, genital organs and nervous system, from which injuries the mother eventually died; that the injuries to her mother and to. the plaintiff, produced by the negligent acts of the defendant, its servants, agents and employees, caused the plaintiff to be injured and prematurely born; and that the plaintiff’s injuries were the direct and proximate result of the injuries which she received by reason of the fall of her mother and the premature birth of herself.

As a demurrer admits all well pleaded facts, there is only one issue to be determined by this court, which although stated in three different ways, is still but one question.

1. Is a viable child, injured while en ventre sa mere and surviving such injury, without remedy under the law of Ohio for such injuries, where they are permanent and suffered by reason of the negligence of another?

2. Can a child, after birth, recover for prenatal personal injuries suffered by reason of the negligence of another?

3. If the infant survives, can it maintain an action for damages for injuries received while in the womb of the mother?

Eminent and many decisions are adverse to a recovery. Many of the courts rule that precedents are binding and that there is no relief, while at the same time the courts indicate that natural justice points the other way.

“It is a general rule of law that in the absence of a statutory provision requiring a different result, a prenatal injury affords no basis for an action in damages in favor of the child. The doctrine of the civil law and the ecclesiastical and admiralty courts that an unborn child may be regarded as in esse for some purposes, when for its benefit, has been characterized as a legal fiction not indulged in by the courts to the extent of allowing an action by an infant for injuries occasioned before its birth. A reason advanced for this rule is that there is no person in being at the time of the accident to whom the defendant owes a duty of care. There is, however, some difference of opinion on the question.” 52 American Jurisprudence, 440, Section 98.

Many courts insist that there must be a fiction of the law or a statutory authority to allow a recovery.

This court is of the opinion that neither a statute nor a fiction of law is necessary, and that recovery can be had.

Although the civil law and the ecclesiastical and admiralty courts indulge themselves in a legal fiction to allow recovery, yet it is said that the common law does not indulge in such a fiction.

“Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. * * * And in this point the civil law agrees with ours.” 1 Blackstone’s Commentaries (Lewis’ Ed.), 129, 130.

The offense of abortion of a quick child is homicide or manslaughter. A child en ventre sa mere is capable of having a legacy made to it. It may have a guardian assigned to it. It may have an estate limited to its use and to take afterwards by such limitation as if it were actually born. Blackstone’s Commentaries (Gavit’s Ed.), 70.

An unborn infant may be made an executor of an estate. Ibid., 511.

, If the child in its mother’s womb is born alive and dies by reason of a potion or bruises received in the womb it seems to be murder. Ibid., 833.

For a mother to receive a stay of execution in a capital crime the child must be alive in the woinb. Ibid., 930.

“Biologically speaking, the life of a human being begins at the moment of conception in the mother’s womb.” 27 American Jurisprudence, 747, Section 3.

However, there is a medical distinction between the terms embryo and viable foetus. The embryo is a foetus in its earliest stage of development, especially before the end of the third month, but the term viable means that the foetus has reached such a stage of development that it can live outside the uterus.

The duty of a court, within a limited sphere, should be not so much in extracting a rule of law from the precedents as in making an appraisal and comparison of social values, the result of which may be decisive in determining what rule to apply. Common Law and the United States, Chief Justice Stone, 50 Harvard Law Review (1936-1937), 4, 5, 6, 7.

Anglo-American law is fortunate indeed in entering upon a new period of growth with a well established doctrine of lawmaking by judicial decision. Undoubtedly judicial empiricism was proceeding overcautiously at the end of the last century. If the last century insisted overmuch upon predetermined premises and a fixed technique, it did not lose to bur law the method of applying the judicial experience of the past to the juridical questions of the present. Pound’s The Spirit of the Common Law, 181, 182.

That a right of action in cases of this character would lead to others brought in bad faith and might present insuperable difficulties of proof is no reason to deny recovery. The law is presumed to keep pace with the sciences, especially the medical science. We are concerned here only with the right and not its implementation. Bonbrest v. Kotz, 65 F. Supp., 138.

“A person who negligently causes harm to an unborn child is not liable to such child for the harm.” Restatement of Torts, 404, Section 869.

On the same page, ibid., is a caveat which reads: “The Institute takes no position upon the question whether there is liability to a child hurt while unborn by a person who intentionally or recklessly and without excuse harms the mother or child. ’ ’

Why this distinction? See 22 Boston University Law Review (1942), 621.

“The art of jurisprudence should find expression in the closeness to absolute justice achieved * * *.” Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St., 110, 116, 33 N. E. (2d), 9.

It is the opinion of this court that an infant as an existing viable child in its mother’s womb has a cause of action after birth for injuries caused by the negligence of another.

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

We find that the judgment upon which we have agreed is in conflict with a judgment pronounced upon the same question by the Court of Appeals of the Seventh Appellate District, in the case of Mays, a Minor, v. Weingarten, d. b. a. Youngstown House Wrecking Co. (unreported), numbered 2939 in such court.

By reason of the conflict, the judges of this court respectfully certify this case to the Supreme Court of Ohio for review and final determination.

Judgment reversed.

Guernsey and Middleton, JJ., concur.


author: Matthews, P. J.

text:
    The Central Trust Co., Trustee, Appellee, v. Hart et al., Appellants, et al, Appellees. (Two cases.)

      (Nos. 6878 and 6879
    Decided April 19, 1948.)

      Messrs. Nichols, Wood, Marx & Ginter, for appellee The Central Trust Company.

      Mr. Robert S. Marx, Mr. Carl M. Jacobs, Messrs. Frost ds Jacobs, Mr. Frank E. Wood, Jr., and Mr. John B. Tytus, for appellants Howard M. Hart and Dorothy A. Evans.

      Messrs. Graydon, Read & Ritchey, Mr. John W. Warrington and Messrs. Murphy & Rrównscombe, for appellees Ella D. Hart and Richard James Shepherd a. k. a. Richard James Hart.
   Matthews, P. J.

These actions were instituted in the Probate Court of Hamilton county by the plaintiff trustee, seeking a construction of certain provisions in the wills of James L. Hart, deceased, and Mary T. Hart, deceased, and for instructions and directions as to its duty as trustee.

The defendants were Howard.M. Hart and Dorothy A. (Hart) Evans, who are children of James L. Hart, and Richard James (Shepherd) Hart, who claims to be an adopted son of James Malcolm Hart, a deceased son of James L. Hart, who was the life beneficiary of the trust estate created by these two wills, which form the subject matter of these actions.

After a decree construing the provisions of the wills favorably to Richard James (Shepherd) Hart, the adopted child of James Malcolm Hart, and directing the plaintiff to administer the trusts in his favor, the defendants Howard M. Hart and Dorothy A. (Hart) Evans appealed on questions of law and fact to this court. As the parties were the same and the issues similar, the cases were heard together in the Probate Court and that procedure was followed in this court.

James L. Hart and Mary T. Hart were brother and sister. Mary T. Hart executed her will on May 31, 1918, and it was admitted to probate on May 1, 1924. By her will, she first disposed of her jewelry and pictures to various persons, some related by blood and some not. She then made several specific bequests to relatives and charities and devised her Cincinnati residence and her interest in a summer residence in Massachusetts and their contents, not previously disposed of, to her brother, Edward A. Hart. By item six, she directed that all the rest of her estate should be divided by her executors into three equal parts. One part, she gave to her brother, Edward A. Hart. One part, she gave to the trustees thereinafter appointed, to hold in trust for the benefit of the children of her deceased sister for their respective lives, and upon their deaths to their respective “lawful issue him or her surviving absolutely and in. fee simple, such issue, to take by representation.”

As to the third share it was directed that her brother, James L. Hart, should be paid $25,000, and subject to this specific bequest, it was provided that “from and out of the principal or corpus of said remaining equal share, I give, devise and bequeath to my executors hereinafter named, in fee simple, securities and property of the value of twenty five thousand ($25,000) dollars, to be held by them in trust, nevertheless, for the following uses and purposes, to wit: To hold, control, manage, sell, invest and reinvest the moneys, securities or property, real or personal, constituting the corpus of said fund; to collect the rents, issues and profits therefrom arising, and, after paying all necessary and proper costs, taxes, expenses, and other charges thereon, to divide, pay over and distribute, quarterly, the net income therefrom arising to my nephew James Malcolm Hart, son of my brother James Hart, for and ■during the term of his natural life; and upon the death of my said nephew, to'pay over, distribute and convey, the principal or corpus of said trust fund of $25,000 to his lawful issue him surviving, absolutely and in fee •simple, such issue to take by way of representation. Provided, however, that if any issue of my nephew shall, at the time above provided for distribution of the principal or corpus of said fund of $25,000, not have attained the age of twenty five years, that then and in such event their share of said principal or corpus shall continue to be held in trust as above, and the net income therefrom arising shall be paid over to them until such time as they shall attain such age, ■at which time distribution of the principal thereof shall be made to them. In case my said nephew James Malcolm Hart should die without leaving issue him surviving, then the net income arising from1 said fund of $25,000 and the principal or corpus of said fund which would otherwise pass to his issue, shall pass to and vest in his brother and sister, or their issue, as the case may be; such issue to take by way of representation. And in case any issue of my said nephew James Malcolm Hart should die without reaching twenty five years of age, then the share which said issue would have taken in the principal or income of said fund, of $25,000, shall pass to and vest in their surviving issue respectively; and in default of such surviving issue, shall pass to and vest in the other issue of my said nephew, all issue to take by way of representation.” Then, subject to these two specific bequests, all the rest of the third share was given in trust for the equal benefit of Howard M. Hart and Dorothy A. Hart, children of James L. Hart, her brother.

James L. Hart executed his will on February 27,. 1920, and it was admitted to probate on December 24,. 1924. He gave his residence and one-third of all the-rest of his property to his wife, and then provided as to all the rest of his property that “two-ninths (2/9) to my son Howard M. Hart, to be his absolutely; two-ninths (2/9) to my daughter Dorothy A. Hart, to betters absolutely; and two-ninths (2/9) to the Central. Trast Company of Cincinnati, trustee appointed in item six of this, my last will and testament, to be held by said trustee in trust; and I direct that the income of said two-ninths of my personal property so held by said trustee shall, beginning immediately after my death, be paid in monthly installments to my son James Malcolm Hart, and that said payments of said income held by said trustee be paid to him monthly for and during his natural life. If my son James Malcolm Hart should die leaving a child or children living at the time of the death of my son James Malcolm Hart, I direct that said trustee pay the income of said two-ninths of my personal property in monthly installments to said child or children, share and share alike,, until said child or children respectively reach the age of twenty-one (21) years, at which time or times the-share of said child or children in the principal of said two-ninths of my personal property is to be paid to-said child or children by said trustee outright. If my son James Malcolm Hart should die leaving no child or children living at the time of the death of my son James Malcolm Hart, then I give said two-ninths of my personal property to my son Howard M. Hart and my daughter, Dorothy A. Hart, share and share alike, to be theirs absolutely. It is my intention that the interest of my daughter Dorothy A. Hart and my son Howard M. Hart in this two-ninths part of my personal property is to become fixed and vested as of the date of my death.”

The plaintiff trustee came into court asking for a declaration as to the meaning of the language used by the testatrix and the testator in order that it might safely proceed in the administration of the trusts created by them. The plaintiff had no interest other than to be protected in the discharge of its duty. Consequently, the appeals are not by it, but are by Howard M. Hart and Dorothy A. Evans, claiming an interest in the trust funds under these wills and the appellee is Richard James Shepherd, also known as Richard James Hart, also claiming under the wills. Neither can succeed other than by bringing themselves or himself within the descriptive terms of one or the other or both of the wills. In other words, he or she can take only if it appears that that was the intent as expressed in the will.

The actions are not between rival claimants under the statute of descent and distribution. Those statutes are of incidental value as are all the other surrounding circumstances in determining the meaning of the testator and testatrix, as disclosed by their testamentary language. Neither statutes nor any existing circumstances can control or modify a clearly expressed lawful intent, but where a latent or hidden ambiguity is disclosed when an attempt is made to apply the language to the subject matter, then evidence to place the court in the position of the testator at the time he made his will is competent. Such an ambiguity exists in this case, and we, therefore, admitted evidence of the surrounding circumstances and have considered it in arriving at our conclusion, giving to each item such weight as we considered it to have.

The evidence indicates that James Malcolm Hart was not an ambitious, enterprising or very able person. The inference seems to be that during his life he lived largely on the income from these two trusts after his father’s death. In 1913 he contracted a marriage with a woman whom his father considered undesirable. Immediately thereafter, an arrangement was made whereby his father paid him a monthly sum on condition that he remain away from Cincinnati, which was the home' city of the Hart family. Prom that time on, for a period of more than ten years this arrangement was carried out and the father and son never met. It appears also that James Malcolm Hart contracted debts which he did not pay and that his father was continually annoyed by James Malcolm Hart’s creditors trying to persuade him to pay them.'

James Malcolm Hart’s first wife died childless in 1937. In 1941, James Malcolm Hart married Ella Shepherd, who had a son by a prior marriage. ’ In 1944, proceedings were instituted in California, where James Malcolm Hart and his second wife resided, for the adoption by James Malcolm Hart of the son of his wife. The validity of that adoption proceeding is disputed, but basing his claim upon that proceeding,. Richard James Hart, also known as Richard James Shepherd, now asserts that he is the adopted son of James Malcolm Hart, and, as such, is within the testamentary intent of James L. Hart, the father of James Malcolm Hart, and Mary T. Hart, the aunt of James Malcolm Hart.

James Malcolm Hart died late in 1944, and his successor or successors as cestuis que trustent became entitled to the trust funds. Richard James Hart, claiming to be the adopted son of James Malcolm Hart under the adoption proceedings, claimed to be the beneficial owner, and Howard M. Hart and Dorothy A. Evans claiming, upon failure of surviving children or lawful issue of James Malcolm Hart, to be entitled to the beneficial ownership of the trust funds. .

As is shown by the quoted portion of his will, James L. Hart provided that should his son James Malcolm Hart die “leaving no child or children living at the time” of his death “then I give said two-ninths * * * to my son Howard M. Hart and my daughter, Dorothy A. Hart, share and share alike, to be theirs absolutely.”

As appears by the quoted portion of the will of Mary T. Hart she provided that should James Malcolm Hart “die without leaving issue him surviving, then the net income arising from said fund * * * which would otherwise pass to his issue, shall pass to and vest in his ■brother and sister.”

It is conceded that James Malcolm Hart left surviving him no natural child or issue, and that, in a legal sense, he died without child or issue him surviving, unless Richard James Hart is an adopted child and as such answers to the description of child or issue, and entitled to all the rights incident to the relation •of parent and child.

Without doubt, former Section 8030 (now Section 10512-23), General Code, showed the legislative intent to make an adopted child an heir of the adopting parent, who, in event of intestacy, would inherit from the adopting parent, but it did not show any legislative intent to limit the power of the adopting parent to deprive the adopted child of any and all interest in the estate by disposing of it otherwise by will. We are not of the opinion that. the Legislature by that section intended to make an adopted child an heir of the entire blood stream coursing through the veins of the adopting parent and of all its tributaries. Albright v. Albright, 116 Ohio St., 668, 678, 157 N. E., 760, and Flynn, Admr., v. Bredbeck, 147 Ohio St., 49, 55, 68 N. E. (2d), 75. But we are not confronted here with the problem of determining the legislative intent of the General Assembly. Our problem is to determine the testamentary intent of James L. Hart and Mary T. Hart.

If, by virtue of Ms adoption, Richard James Hart became entitled to every right that a natural child of Malcolm Hart, born in lawful wedlock, might assert, that, per se would give him no vested right to share in the estates of James L. Hart and Mary T. Hart. James Malcolm Hart had no vested interest in either of those estates by reason of his blood relationship. Either could have disinherited him entirely. He took under their wills because they intended he should, and only to the extent that they intended. An adopted child of James Malcolm Hart had no vested right to inherit or otherwise participate in these estates. Such a child could take under these wills only in the event that the intent be found that it should take.

Now who were to take these trust funds upon the death of James Malcolm Hart?

Turning to the wills, we find that in the one will it is said that his surviving “child or children” should take, and in the other will that his “lawful issue him surviving” should take, and in the event of no surviving child in the one case and no surviving issue in the other, then the appellants, Howard M. Hart and Dorothy A. Evans should be entitled.

The question is whether in either ease the intent is shown that an adopted child, created more than 20 years after the deaths, by operation of adoption proceedings, was contemplated as coming within the descriptive terms used.

It will be noted that the terms, “child,” and, “lawful issue,” used are not technical terms. They do not owe their origin to any legal fiat, nor is their meaning dependent or controlled by any statutory definition. The testators did not resort to technical nomenclature to express their intent. If they had resorted to terms of art, as for instance, “heirs,” it might be that we would be required to determine whether the Legislature had defined the term as including an adopted ■child of a son or nephew of a testator. That a testator’s choice of words is important in this respect is pointed out in 3 Restatement of Property, 1668, where it is said:

“Limitations in favor of ‘heirs,’ ‘heirs of the body,’ ‘next of kin,’ ‘relatives,’ and other groups described by words of similar import, constitute the subject matter of this chapter. Such limitations give rise to problems substantially different from those involved in chapter 22 (class gifts in favor of ‘children,’ ‘grand•ehildren,’ ‘brothers,’ ‘sisters,’ ‘nephews,’ ‘nieces,’ ‘cousins,’ ‘issue,’ ‘descendants’ or ‘family’). This ■difference in problems is due primarily to the fact that the terms found in the limitations dealt with in ■this chapter, as for example, limitations to ‘heirs,’ or ‘next of kin,’ have primary meanings fixed by some •statute on the intestate succession of property, while the terms found in the. limitations dealt with in chapter .22, as for example, limitations to ‘children,’ are terms understandable without the aid of any such statute.”

We, therefore, are governed in this case by the rule Applicable when the class is described by the nontechnical terms of, “child,” or, “lawful issue.”

In 3 Restatement of Property, 1520 et seq., the rule is stated in section 287, as follows:

“ (1) When a limitation is in favor of the ‘children’ of a designated person, all persons adopted by the designated person are excluded from the possible takers thereunder except when a contrary intent of the conveyor is found from additional language or circumstances.

“2. The following are the most frequently encountered factors tending to establish the existence of the ‘contrary intent of the conveyor,’ referred to in subsection (1):

“(a) the conveyor is also the designated person;

“(b) the conveyor at the time of the execution of the instrument containing the limitation knows of the adoption. ’ ’

Applying that rule to the facts of this case would require us to hold that James L. Hart did not intend to include the adopted child of his son within the class that was to take upon the death of the son. The facts bring the case within the general • exclusion stated in the rule and not within either of the exceptions. The testator was not the adoptive parent of Richard James Hart and as the adoption proceeding did not occur for more than 20 years after his death, he could not have known about it when he executed his will. While the .language (lawful issue) used by Mary T. Hart does not bring her will within the exact words of the rule in the Restatement, it does bring it within the spirit of the rule. “Issue” is not a technical term. It is not of legal origin. It has a wide adaptability. If it has acquired any technical legal meaning it is “heirs of the body,” which would exclude an adopted child from inheriting even from the adoptive parent by the express term of former Section 8030 (now Section 10512-23), General Code. See 22 Words and Phrases, 715. Certainly, “lawful issue” is not synonymous with “heirs” and has no fixed statutory meaning.

Plaintiff’s counsel rely strongly upon Smith v. Hunter, 86 Ohio St., 106, 99 N. E., 91. In that case, the remainder was devised to “the heirs at law.” The court analyzed the will to discover the intent and concluded that the phrase, “heirs at law,” had a technical meaning; that a living person could not have heirs; that until the life tenant died she could have no heirs; that in order to determine who her heirs were the statutes in force at that time had to be consulted; that they controlled; that all persons coming within the statutory definition would be entitled; and that, therefore, an adopted child would take, because the testator had in effect incorporated the statutes of descent and distribution into his will.

We have no such pointing to the statutes by either of the testators in the wills in the instant cases for a determination of the class to take upon the death of the life tenant. In the two wills here presented for construction, no legislative act subsequent to their execution could affect the class without doing violence to the testamentary intent, whereas, in Smith v. Hunter, supra, the testator left the composition of the class to the complete control of the Legislature during the entire life of the first taker.

We think the case falls within the category embraced by section 287 of Restatement of Property and illustrated by Albright v. Albright, supra, the syllabus of which is:

“A testator devised certain land to his son Isaac Albright in a will which contained the following provision: ‘The land above devised to my son Isaac Al-bright he is to have the use of during his natural life, and at his death to vest in fee simple in his children if he shall have any living. If he shall leave no children living at his death then said lands shall vest in his legal representatives of the Albright family.’ Isaac Albright died without children, having adopted a child, Jesse Albright, fifteen years after the death of the testator. In an action for partition and quieting of title, held that the adopted child is not a ‘legal representative of the Albright family’ and does not take under the will.”

In the first sentence of the opinion the court emphasized that the problem before the court was the ascertainment of the testator’s intention and that polestar was kept constantly in view throughout the opinion. The adoption statutes were discussed, not because there was any thought that such statutes or any other statutes controlled the devolution of this property, but solely for the purpose of ascertaining the testator’s intent, which did control. And in distinguishing Smith v. Hunter, the court, at page 676 et seq., said:

“However, in the case of Smith v. Hunter, the will construed employs the words ‘heirs at law’ instead of the words ‘child’ and ‘children.’ Also the Albright will expressly qualifies the devise over to Isaac’s ‘legal representatives’ with the phrase ‘of the Albright family.’ Now the term ‘heir at law’ is essentially a legal term, and applies to those persons who have -certain legal rights under the statutes of descent and ■distribution. It signifies, in its strict and technical import, the person or persons appointed by law to succeed to the'estate in case of intestacy. 2 Blackstone’s Commentaries, 201. As the will in Smith v. Hunter specified that the remainder interest in the property in question should pass to the ‘heirs at law’ of the life tenant, and as the statute appointed adopted children to succeed to the estate of their adopting parents in «ase of intestacy, this court was undeniably correct in holding that under that record the term ‘heir at law’ included adopted children.

“The term ‘child’ or ‘children,’ on the other hand, has both a legal meaning and an age-old lay meaning. It may be conceded that either of these terms would, if used in certain contexts, include adopted children under either Sections 3139 and 3140, Revised Statutes, or ■Section 8030, General Code. However, as given by Webster, one of the first definitions of the meaning of the term is:

“ ‘A son or a daughter; a male or female descend.ant in the first degree; the immediate progeny of human parents; in law, legitimate offspring.’

“The question before us herein is whether in his will Charles Albright used the word ‘child’ in the legal sense, meaning to include both natural children and persons who had the status of natural children under the statute, or in the ordinary sense in which it is generally employed in common speech, as meaning only issue of the body. ’ ’

And at page 680, the court adopted as its own this-rule of construction from 28 Ruling Case Law, 252:

“ ‘There are numerous decisions to the effect that a testator who by' will makes provision for his own-“child or children” by that designation should beheld to have included an adopted child, since he is under obligation in morals if not in law to make provision for such child. If, however, a will makes provision for a “child or children” of some other person than the testator, the adopted child of such person is-not included, unless other language of the will makes-it clear that it was so intended. In the absence of circumstances tending to show that the testator anticipated the adoption, or knew that it had already taken place, and therefore probably intended to treat the person adopted as a possible beneficiary, the decisions generally exclude the adopted child from the benefit of the will. A limitation in a will, to a child or children, or conditioned upon the survivorship of a child or children, is not deemed to include an adopted child, where the grantor or testator is a stranger to the adoption.’ ”

The court discussed many terms of the will in search of the testator’s intent, and particularly that provision that if the life tenant should die without child or children surviving then the property' should go to the “legal representatives of the Albright family.” There is no doubt of the cogency of the reasoning based on that clause of the Albright will. But the court also called attention to other provisions indicating that the testator used the word, “children,” in the sense of “heirs” which would make the rule in Smith v. Hunter applicable. The court did not treat any indicia as conclusive of the intent.

There is no language in either of the wills under construction in the instant cases indicating that either testator used the words, “children,” and “heirs,” as synonymous. Each testator seems to have intended to avoid the use of technical terms in designating the beneficiaries of his or her bounty — and to have succeeded. We can find no indication of an intention by either to adopt statutory definitions or to delegate to the Legislature the power to define terms used by them by future legislation.

And we do find that James L. Hart by the provision that the interest of brother and sister should become “fixed and vested as of the date of my death” manifested a special concern for them in relation to succession to this property. Certainly, it shows that he did not want their interest to be dependent upon any contingency beyond that actually expressed by him. It shows that he had no intention to leave it to the Legislature to define terms and thereby enlarge the contingency. It shows also a purpose to exclude the hazard of having them deprived of their interest by a voluntary conveyance by James Malcolm Hart, or as It seems to us, by the combined action of a Legislature and James Malcolm Hart, such as a statutory adoption proceeding.

In the case of Everhard v. Brown, 75 Ohio App., 451, 62 N. E. (2d), 901, the court was required to determine whether'adopted children of designated persons, other than the testator, came within his testamentary intent. After discussing Albright v. Albright, supra, the court said at page 466 et seq_.:

“There is a general rule pronounced in the foregoing quotation which, by analogy, applies with even greater force to the facts of the instant case than to the case in which it was asserted.

“The fact that these adoptions occurred many years subsequent to the death of the testator is a circumstance of great importance. The testator was a complete stranger to the adoptions. We believe it inconceivable that the testator intended to include persons in his bounty who might years after his death become adopted children of a nephew. Certainly the presumption is to the contrary, and to include such children would enlarge the words used beyond their ordinary meaning and import. Ordinarily, the words ‘grandnephew’ and ‘grandniece’ do not contemplate a person adopted by the son of a testator’s brother or sister. 28 Ruling Case Law, Wills, Section 223; Re Estate of Puterbaugh, Deceased, 261 Pa., 235, 104 A., 601, 5 A. L. R., 1277.

“For a comprehensive discussion of the general subject, see ‘Construction of Private Instruments Where Adopted Children Are Concerned,’ 43 Michigan Law Review, 705.

“We therefore conclude that the adopted children claiming under this will are not entitled to participate in the distribution.”

We find it unnecessary to pass upon the validity of the adoption proceedings. Assuming their validity, we find that an adopted child of Malcolm Hart does not come within the testamentary .intent of either James L. Hart or Mary T. Hart.

Our conclusion is that James Malcolm Hart died without child or children or lawful issue surviving him, and that, therefore, Howard M. Hart and Dorothy A. Evans take the funds in each instance under the provisions of these wills.

Decrees may be presented in accordance with this opinion.

Decrees accordingly.

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


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    American Automobile Ins. Co., Appellee, v. Dayton Parking Co., Appellant.
    (No. 1953
    Decided November 29, 1947.)

      Mr. Joseph D. Chamberlain, Jr., for appellee.

      Messrs. Coolidge, Becker & Wall, for appellant.
   By the Court.

This is an appeal on questions of law from the Municipal Court of Dayton. The action was one for damages resulting to an automobile while in the custody of the defendant, appellant herein. The record discloses that on October 27, 1945, E. J. Kyle drove his automobile into the defendant’s parking lot in the city of Dayton, Ohio. He left his car on the parking lot and at the same time paid 30 cents to one of the defendant’s employees and received a ticket which was designated as a “claim check,” and which was submitted in evidence as plaintiff’s exhibit A. This claim check contained a number in large red figures and also the following in fine print:

‘ ‘ This ticket entitles the lessee1 to the use • of one parking space between the hours of 8:00 a. m. and 6:00 p. m. on the day issued. Lessor will endeavor to protect the property of the lessee but will not be responsible for loss or damage to cars, articles left therein, or accessories by reason of theft, accident, fire or otherwise. Attendants are on duty from 8:00 a. m. till 6:00 p. m. daily, except Sunday, and will park cars if desired.”

When Kyle returned for his car later that day it was discovered that it was gone. Later the same day, the automobile was found abandoned near Franklin, Ohio, in a damaged condition. Kyle recovered the car, had it repaired at a cost of $90.72, and was required to spend an additional sum of $9.38 which represented towing charges and taxicab fare in repossessing the automobile. Kyle was insured by the plaintiff, appellee herein, and pursuant to the terms of the policy plaintiff paid Kyle the sum of $100.10 which was the amount of the actual damages as above stated. The plaintiff was subrogated under the terms of the policy and brought this action to recover the loss. The trial court rendered a judgment for the plaintiff for the full amount, which judgment was affirmed by the Court, of Common Pleas.

The first assignment of error is that the judgment and finding of the Municipal Court is contrary to law and to the evidence. The defendant is seeking to escape liability by maintaining that the claim check was a lease which entitled Kyle to the use of one parking space in defendant’s parking lot.

The question for our consideration is the relationship of the parties to each other. The facts in this case are almost identical to those of Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658, with the exception of the contents of the claim check. The court in that case held that the parking ticket which was delivered to the owner of the car was not binding upon him as a part of the contract. Judge Bell, at page 280, said:

“The great weight of authority in this country is to the effect that a ticket, such as was delivered to this bailor, is a mere token for identification. ’ ’

Kyle testified on direct examination that he had received the claim check for that very same reason. He was asked:

“Q. Did you receive that ticket as anything else but a claim check? A. That. I had left my car there and that they had custody of my car.”

The evidence disclosed that Kyle’s attention was never called to the printed matter on the ticket, that he never read it and was not aware of its contents.

We are, therefore, of the opinion that the relationship between Kyle and the defendant was at all times that of bailor and bailee and not that of lessor and lessee, and that, under the legal principles announced in the Constantine case, supra, the judgment below was not contrary to law.

The second assignment of error is that the judgment granted by the Municipal Court was excessive. The defendant is contending that the damages allowed by the trial court in-excess of the cost of repairs were special damages which were not pleaded and, therefore, could not be proven. The items objected to were as follows:

Bus fare, Dayton to Franklin $ .63

Taxi fare, Franklin to State Police Station 5.00

Towing charge 3.75

We think those items were improperly admitted in evidence, and that they are special damages which might not reasonably be expected to result from the principal damages such as complained of in this case. Being special damages they must be specially pleaded. See 13 Ohio Jurisprudence, 260, Section 156, 25 Corpus Juris Secundum, 775, Section 139.

The judgment is affirmed, but with a remittitur for $9.38, being the total of the special damages allowed by the trial court.

Judgment affirmed with remittitur.

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


author: Miller, J.

text:
    Rannes et al., Appellees, v. Brusman, Appellant.
    (No. 1968
    Decided April 8, 1948.)

      Messrs. S.charrer, Scharrer $ Hanaghan, for appellees.

      Mr. Irvin Carl Dels camp, for appellant.
   Miller, J.

This is an appeal on questions of law from the Court of Common Pleas of Montgomery •county. The action was one in replevin wherein the plaintiffs sought to recover certain chattel property from the defendant.

The record discloses that the petition and affidavit in replevin were filed on August 8, 1947; and on Au.gust 11, 1947, the property was seized by the sheriff, taken into his custody and no redelivery bond was posted by the defendant.

On September 5, 1947, the defendant filed a motion to set aside the writ of replevin for the sole reason ■that the affidavit was not sworn to positively but rather on belief, the affidavit being as follows:

“Thomas J. Nugent,’being first duly cautioned and sworn according to law, says that he is one of the plaintiffs in the foregoing cause of action, and that The facts stated therein are true, as he verily believes. ’ ’

The sole question for determination is the sufficiency of the affidavit. We think that the trial court properly overruled the motion to dismiss for two reasons.

First, the affidavit conforms with all the requirements of Section 12052, General Code, which provides:

“An order for the delivery of property to the plaintiff shall be issued by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent or attorney

Counsel agree that the affidavit is not a pleading, but counsel for the defendant, appellant herein, urges that, since it is not a pleading, it must, therefore, resolve itself to be evidence, and if it is evidence it must be positively sworn to. We are of the opinion, however, that it is not evidence. It is filed for the sole purpose of complying with .the requirements of the section of the Code as above stated. It is not evidence which may be used upon the trial to prove any material questions at issue. As to those matters the testimony of witnesses must be so taken as to subject the witness to cross-examination. An affidavit is an ex parte declaration and does not conform to this requirement. It is merely a statement of fact from which judicial conclusions may be drawn. It is not a pleading in which allegations of conclusions of fact may be permissible, but is a statement of a fact. The Code provides that the affidavit may be made by the plaintiff, his agent or attorney. Section 12052, General Code, does not require the affiant to have personal knowledge of the facts as required by Section 11358, General Code, which provides when an agent or attorney may verify a pleading. Since personal knowledge is not required, one signing as agent or attorney, without persona] knowledge, can do so only upon information and belief.

Counsel for defendant seems to rely on the case of Bobilya v. Priddy, Assignee, 68 Ohio St., 373, 67 N. E., 736. We have examined that case and find the facts to be somewhat similar with the exception that the affidavit was sworn to positively and not merely on belief. The court did not say that a positive affidavit was required in order to sustain the writ. The court, however, did comment upon the fact that a positive affidavit had been filed.

A second reason to support the ruling of the trial court is that the motion was filed after the property had been seized, which was too late. The affidavit of replevin is filed to obtain a provisional remedy, that is, to acquire possession of the property. Bates’ Pleading, Practice, Parties and Forms (4 Ed.), 2121, Section 2487. After this has been done the purpose of the writ has been served.

In the case of Harrison v. Mack International Motor Truck Co., 20 Ohio App., 256, 151 N. E., 797, it was held:

“Where a writ of replevin has been issued and served, and the possession of the property secured thereby for the plaintiff, it is too late to question the validity of the'affidavit on which the writ was issued.”

We find no error in the record and the judgment is affirmed and the cause ordered remanded.

Judgment affirmed.

Wiseman, P. J., concurs.

Hornbeck, J., concurs in the judgment and in paragraph one of the syllabus.


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    The State of Ohio, Appellee, v. Grambo, Appellant.
    (No. 3962
    Decided September 29, 1947.)

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. Vincent T. Martin and Mr. Edmund B. Paxton, for appellee.

      Mr. Howard Gillard, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, in which the defendant was indicted, tried and convicted on the charge of manslaughter.

The defendant has assigned as error the refusal of the trial court to permit counsel for the defendant on voir dire examination to ask the prospective jurors the following question:

“Would the fact that the defendant, if it be a fact, had served time in a penal institution, keep you from sitting as jurors here and giving a fair and impartial verdict based upon the facts as are developed from the witness chair and the law as given you by the court ?’ ’

The state’s objection to the question was sustained. No other record was made of the voir dire examination. Consequently there is nothing presented by the record to show that any juror answered any question indicating bias or prejudice toward the defendant. There is nothing in the record to show that the defendant exercised any challenge, whether peremptory or for cause.

In view of the state of the record, we must assume the jurors were properly qualified and that the defendant was satisfied with the jury. If the question which was sought to be propounded was proper, we are of opinion that the ruling was not prejudicial to the substantial rights of the defendant.

Defendant claims the court erred in its general charge relative to the consideration of the evidence which showed the defendant fled when the officers came to his residence for the purpose of making an arrest.

The court charged: ■

“Members of the jury: Two matters have been called to the court’s attention. One, with reference to a matter commented on by Mr. Martin in his argument with reference to the testimony of the defendant’s flight. I charge you, members of the jury, that you may consider that as evidence of his guilt and give to it, or attach to it, the significance that you think that it may be entitled to.”

We are of the opinion that sneh charge was proper. Flight from the place of crime may be considered as-evidence of guilt. State v. Doty, 94 Ohio St., 258, 266, 113 N. E., 811; Allison v. State, 12 Ohio App., 217, 221; Williams v. State, 11 C. C. (N. S.), 4, 12, 20 C. D., 342;. Grillo v. State, 9 C. C., 394, 398; Blythe v. State, 4 C. C., 435, 440, 2 C. D., 636; 12 Ohio Jurisprudence, 320.

In connection with the charge on the elements of manslaughter, the court charged the jury that “to-strike another is in violation of law.” The defendant contends that such statement was too broad as a proposition of law. If the statement were considered alone,, it would be too broad, but the test as to whether it was erroneous and prejudicial must be determined by the charge as a whole and especially in connection with other portions of the charge bearing upon the same-matter. Inadequate and incomplete propositions may be cured by instructions which precede or follow the-statement complained of. Behm v. Traction Co., 86 Ohio St., 209, 99 N. E., 383; Standard Table Oil Cloth Co. v. Rees, Jr., Admr., 85 Ohio St., 438, 98 N. E., 1133; Daum v. Arnott, 14 Ohio Law Abs., 196.

After a consideration of the charge as a whole and especially the part of the charge relative to the elements of manslaughter and the definition given to “an unlawful act,” we are of the opinion that the statement was not prejudicial and that the charge given was proper.

After the jury was charged, the court asked counsel for suggestions with reference to the charge. Counsel for the state called the court’s attention to two matters on which the jury should be charged. The court immediately charged the jury on the two matters. The court then inquired of counsel for defendant whether he had any suggestions with reference to the charge. The record shows that at this point counsel for the defendant conferred with the court out of the hearing of the jury. The jury was then instructed to retire for deliberations. The record shows a statement of counsel for the defendant, after the jury retired, as follows:

“I had requested the court to charge upon proxi-. mate cause.

“The court: Overruled.

“Mr. Gillard: Note an exception.”

In the general charge, the court fully instructed the jury that the state was required to prove beyond a reasonable doubt all the elements of manslaughter, defining them, and that the person alleged to have been slain was, in fact, slain as claimed in the indictment by reason of the commission of an unlawful act by the defendant. Perhaps the court did not elaborate on that phase of the case to the entire satisfaction of counsel, but in our opinion the general charge was correct and not misleading to the jury. In the trial of the case, no question was raised that the deceased met his death in any other manner than was charged in the indictment. It was incumbent on the state to prove beyond a reasonable doubt that the person alleged to have been slain was in fact slain by the defendant as alleged, and the court fully instructed the jury to that effect.

In the case of State v. Schaeffer, 96 Ohio St., 215, 117 N. E., 220, L. R. A. 1918B, 945, wherein the defendant was charged with manslaughter, the court did not use the term, “proximate cause,” in the charge, and error was assigned because of such omission.

The court, in its opinion in that case, said:

“The trial court here, in effect, charged the correct legal proposition as to proximate cause, without, however, putting on the label. But it is not always necessary to use the term ‘proximate’ or ‘proximate cause’ in order to correctly charge thereon.”

Likewise, we might well draw the same conclusion from the record in the instant case as the court did in the Schaeffer case.

The court in that case concluded:

“Upon a careful examination of the entire record of this ease, and all the evidence before the court and jury, we are convinced to a moral certainty that the defendant was rightly convicted by the jury, and that any technical error of the court, or any error in the charge with reference to proximate cause, was, in this case, in no wise prejudicial. Substantial justice has been done.”

Furthermore, the record does not disclose what •charge counsel for the defendant requested the court to give.

In 39 Ohio Jurisprudence, 1010, it is stated:

“It is not essential that a request after argument for a charge upon a particular issue should be in writing. But in order to impose any obligation on the trial court to give additional instructions to the jury, ■counsel must not only call the court’s attention to such omission as he claimed, but must indicate clearly what he claims the law to be and what charge he desires the •court to give.”

In Cincinnati Traction Co. v. Lied, 9 Ohio App., 156, the court, on page 160, said:

“It was clearly the duty of counsel not only to call the court’s attention to such omission as he claimed, 'but, if he desired to found error upon it, to indicate •clearly what he claimed the law to be and what charge he desired the court to give. It does not seem to be ■essential that this request should be in writing, but there must be some specific rule of law formulated in that request in order to predicate error upon its refusal. The Columbus Railway Co. v. Ritter, 67 Ohio St., 53, and Whitaker, Admr., v. The Michigan Mutual Life Insurance Co., 77 Ohio St., 518, 522.

“In the opinion of this court it was not prejudicial error in the trial judge to fail to add anything further to what had been said by him in the general charge on the suggestion made by the counsel for defendant below * * *.”

In Haley v. Dempsey, Exr., 14 Ohio App., 326, at the conclusion of the general charge, counsel requested the court to charge on the matter of confidential relations. The record did not show that counsel presented to the court any definite proposition of law.

The court, on page 331, said:

“From the foregoing it will appear that counsel did not formulate any specific rule of law and request that such a charge be given. No court to whom such a remark was addressed could reasonably be expected to know what counsel claimed the law to be. If counsel desired to predicate error upon this omission of the court they should have indicated clearly what they claimed the law to be, and what charge they desired the court to give.”

A motion to certify was overruled by the Supreme Court on June 21,1921.

The state contends that under a plea of self-defense the question of proximate cause of death was eliminated from the case, a plea of self-defense being in the nature of a confession and avoidance. More specifically, the state contends that the defendant in interposing a plea of self-defense admitted killing the deceased, but pleaded justification of the act. The claim is made that, since the defendant admitted the killing by interposing a plea of self-defense, it was not incumbent on the state to prove that the blow struck by the defendant was the proximate cause of his death". The trial court on the record before us did not take that view of the case and charged the jury that the state carried the burden to prove every essential element of manslaughter as charged in the indictment. Because of the state of the record and the charge of the court, it is unnecessary for this court to pass on that question.

In the case at bar, the record being silent relative to the specific proposition of law on which counsel for the defendant requested the court to charge the jury, there is no question presented for review.

The defendant assigns as error the overruling of the motion for new trial which was supported by two affidavits. It is well established in Ohio that affidavits filed in support of a motion for a new trial cannot be considered by the reviewing court on error assigned to the decision on the motion unless such affidavits are properly brought upon the record by the bill of exceptions. In the case at bar, such affidavits were attached to the motion for new trial and filed with the clerk. This is held to be insufficient as such affidavits are in the nature of evidence. Long v. Cassiero, 105 Ohio St., 123, 125, 136 N. E., 888; Goldsmith v. State, 30 Ohio St., 208; Willett, Admr., v. N. Y. C. Rd. Co., 73 Ohio App., 59, 54 N. E. (2d), 317; Simes v. Dayton-Xenia Ry. Co., 24 Ohio Law Abs., 595, 36 N. E. (2d), 517.

After a consideration of the entire record and the charge of the court, we are of the opinion that the defendant had a fair trial, and that the record does not disclose any error affecting the substantial rights of the defendant.

The judgment is affirmed.

Jibdgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Hildebeant, J.

text:
    The Ohio National Life Ins. Co., Appellee, v. Struble et al., Appellants.
    (No. 6826
    Decided May 17, 1948.)

      Messrs. Bettinger, Schmitt & Kreis and Messrs. Long & Bloom, for appellee.

      Mr. Robert N. Gorman, Mr. Roy L. Struble and Mr. Harold C. Knecht, for appellants.
   Hildebeant, J.

This cause is now before tbe court for trial de novo, following tbe action of this court in upholding the right of appeal (80 Ohio App., 531, 76 N. E. (2d), 420, wherein the nature of the action is set forth in the syllabus).

It is, therefore, sufficient to state here that the validity of the plaintiff insurance company’s proceeding for mutualization is attacked by defendants as dissenting minority shareholders.

The case is presented to this court on the petition of plaintiff for a declaratory judgment filed after demand made by the defendants, the amended and supplemental answer and cross-petition of the defendants filed in this court, and upon the record from the court below in the consolidated actions, together with additional evidence by way of deposition and the exhibits.

Since, in Belden v. U. C. L. Ins. Co., 143 Ohio St., 329, 55 N. E. (2d), 629, on the suit of a nonparticipating policyholder, the Supreme Court held the mutualization statutes here involved (Sections 9364-1 to 9364-8, inclusive, General Code) constitutional, the defendants assume the validity of such statutes generally, and rely on other grounds hereinafter set forth.

The defendants’ contentions are:

I. The plan was not legally adopted, for three reasons : A. It was prematurely presented'. B. It did not receive a majority vote. C.- It did not comply with the securities act of 1933.

II. Fraud invalidated the vote.

III. The plan is fraudulently illegal.

IV. The operative effect of the plan and statute is invalid and unconstitutional.

We first consider objection A.

The Legislature provided for the conversion of a domestic stock life insurance corporation into a mutual life insurance corporation by Sections 9364-1 to 9364-3, inclusive, General Code, effective August 23, 1937. Those sections were amended and supplemented and became Sections 9364-1 to 9364-8, inclusive, General Code, effective July 17, 1941. Under the amended sections, four steps are required to effectuate a mutualization plan, namely, (1) adoption of a plan by the board of directors, (2) approval by the shareholders, (3) approval by the policyholders and (4) approval by the Superintendent of Insurance of Ohio.

Admittedly, adoption of a plan, stated to be in conformity to the amended law, by the board of directors was had on June 12, 1941, and the notice to shareholders of a meeting on July 30, 1941, to approve the plan was mailed on July 14, 1941, both steps prior to the effective date of the amended act on July 17, 1941. On July 30,1941, the board of directors met and again approved the plan, and subsequently the policyholders have approved the plan, with only the approval of the Superintendent of Insurance remaining to effectuate the plan.

We find no merit in the claim that, because the board of directors adopted a plan, wherein it was stated to be pursuant to the amended act, prior to the effective date of the law as amended, and gave notice to the shareholders of a meeting to be held subsequent to the effective date for approval of a plan adopted in conformity to the law as it would exist at that time, its action was premature and void. On June 12, 1941, existing- law sanctioned the adoption of a plan of mutualization by the board, and the only legal plan and notice to shareholders that could be given was of a plan in conformity to the law which the board knew would be in existence at the time of the shareholders meeting.

B. The claim is made that the plan did not receive a majority vote of the shareholders, for the reason that shares of stock held in a voting trust should have been voted by the trustees thereof instead of by the shareholders themselves, which was done.

Voting trusts, sanctioned in Ohio by Section 8623-34, General Code, are the result of an agreement, whereby the shareholder parts with the voting power, but retains the beneficial ownership of the stock. Subject to the rules of construction applicable to contracts generally, it follows that a court may not enlarge such a contract beyond its fair implications. While such an agreement might grant specific authority for sale by the trustee here, the grant of “full power” to vote the stock for a limited time is clearly inconsistent with a power to destroy the beneficial ownership by sale or otherwise, and clearly appears not to have been within the contemplation of the parties to the agreement. This court is in accord with the following statements contained in headnotes to Matter of Bacon, 287 N. Y., 1, as reported in 38 N. E. (2d), 105:

“A ‘voting trust’ with respect to stock in a corporation creates a separation of the voting power from beneficial ownership of stock, and the state may regulate such separation by exercise of ‘police power.’

“A stockholder who deposits his stock under a voting trust parts with the right to vote but retains beneficial ownership of stock, and thereafter neither holders of voting trust certificates nor voting trustees possess all the rights of stockholders, and each group are ‘stockholders’ for some purposes, but neither group for all purposes * * *.

“Under a voting trust agreement whereby stock of a corporation issued pursuant to plan of corporation’s reorganization under Bankruptcy Act was issued to voting trustees, the power to destroy stock, such as by liquidation of corporation through sale of its assets, would not be implied merely from a power to vote stock, and only by use of clear language could such an extraordinary power be conferred.”

See, also, annotation, 159 A. L. R., 1067 et seq.

C. As to the claim that the securities act of 1933 was not followed, this court is of the opinion from a reading of the act that this transaction is not included within the positive provisions of the act and is included within the provisions exempting it from compliance therewith.

In contention II, defendants claim the directors committed a fraud upon the shareholders by concealing from them the fact that the stock had a value in excess of the $40 per share, fixed in the plan, thereby invalidating the vote.

It must be borne in mind that in these mutualization proceedings the function of the directors is solely to propose a plan for approval or rejection by the shareholders, including the price per share mentioned therein, and they had no power to bind the shareholders to any part of it. The very purpose of the shareholders meeting is for discussion and consideration of the whole plan, including any objection made thereto. The record discloses defendants attended that meeting, objected to the price per share and offered resolutions with reference thereto, which were voted down both before and after approval of the plan was voted by 'the shareholders. It, therefore, appears that the approval as to price was the free approval of the shareholders, and no frand intervened.

In contention III, the claim of fraud in the plan, by reason of limiting the price to $40 per share and dividends to $1.25 a share, must fail by reason of the voluntary adoption of those provisions by the shareholders. Nor in that plan does there appear any interest of the directors adverse to that of the shareholders ■calling into question their fiduciary obligations.

Finding no fraud, the claimed inadequacy in price, which we do not find substantiated by the record, provides no ground for the relief prayed for herein.

As pertinent to the circumstances here, we cite Wick v. Youngstown Sheet & Tube Co., 46 Ohio App., 253, 188 N. E., 514, and quote from page 265:

“The District Court of Montana in Wall v. Anaconda Copper Mining Co., 216 F., 242, says, at page 246:

“ ‘Serein the fraud charged must be proven and by legal evidence, and not merely alleged in pleadings 5nd for proof rested upon argument and oratorical endeavor. Finding no fraud in the sale, finding the stockholders’ consent was free, it is unnecessary to inquire into the purchase price. That was determined by the holders of two-thirds of Parrot stock; Amalgamated holding a little more than half said stock. They satisfied, none can complain. They could ■direct a corporate sale for any consideration, even as they individually could make personal sales. Doubtless gross inadequacy might be a circumstance in a fraudulent sale. Aside from that, the dissenting stockholder has a plain, speedy, and adequate remedy at law in the appraisal proceedings provided by the statutes, wherein he secures the value of his shares though the others receive from the sale but a tithe thereof.’ ”

In conformity to the principles set forth in Johnson v. Lamprecht, 133 Ohio St., 567, 15 N. E. (2d), 127, the optional plan of mutualization here adopted by the shareholders, in the absence of fraud, will not be enjoined, and the dissenting minority shareholders are remitted to their statutory rights to obtain the fair' cash value of their shares.

IY. The principal claim here is that the operative' effect of the plan and statute is unconstitutional as retroactive to defendants, because the amended act was passed subsequent to their acquisition of their stock. The record shows all their stock was acquired in 1940. At that time, the mutualization statutes effective in 1937 were in existence, so that defendants-acquired their stock presumably with knowledge thereof and subject to their provisions. The amended act merely related to word definitions and set up the procedure for dissenting shareholders to obtain the fair cash value of their stock. No vested rights of defendants were affected requiring further discussion of constitutional questions.

In conclusion, we find no evidence in the record sufficient to sustain the charge of fraud and illegality necessary to the granting of equitable relief, which relief will, therefore, be denied.

A decree may be presented accordingly.

Decree accordingly.

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