author: Ross, J.

text:
    The State, ex rel. Love, Appellant, v. Jones, Appellee.

      (No. 7760
    Decided October 5, 1953.)

      Mr. Edward C. Benson, for appellant.

      Mr. Julian R. Forney, for appellee.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, Division of Domestic Relations, of Hamilton County.

The trial court caused this judgment to be entered:

‘ ‘ This cause coming on to be heard on the complaint of Ernestine Love and the evidence, on consideration whereof it appearing to the court that this action was brought in the name of the state of Ohio on the relation of Ernestine Love, and it further appearing that said Ernestine Love at the time of filing her complaint was a minor, aged 18 years; the court finds that a bastardy proceeding cannot be instituted or maintained in the name of the state of Ohio; and the court further finds that such bastardy proceeding cannot be instituted or maintained by a minor complainant.
“ It is therefore ordered, adjudged and decreed that this cause be, and the same hereby is, dismissed without prejudice to the institution of a proper proceeding in accordance with law, at the costs of the plaintiff.
“To all of which said Ernestine Love, through her attorney, Edward O. Benson, excepts.”

The complaint was filed on June 23, 1950, in conformity to the provisions of Section 12110 et seq., General Code, appearing in Part Third (Remedial) of the General Code, Title IV (Procedure in the Common Pleas Court), Division VIII, Quasi Criminal Actions, Chapter 2 (Bastardy). These are the applicable sections of the General Code in force at the time the complaint was filed, and are those that govern matters of procedure in the action herein considered. (Sections 26 and 26-1, General Code.)

The first question presented is whether the trial court was correct in adjudging “that a bastardy proceeding cannot be instituted or maintained in the name of the state of Ohio.”

In State, ex rel. Gill, v. Volz, 156 Ohio St., 60, 100 N. E. (2d), 203, it is held in the second paragraph of the syllabus:

“Although the General Assembly has, in the enactment of the General Code of Ohio, classified bastardy proceedings as ‘quasi-criminal proceedings,’ and although a bastardy proceeding possesses some of the characteristics of a criminal prosecution, the applicable statutes do not contemplate the punishment of a criminal act but only the enforcement of a moral duty of reimbursing the complainant for expense of and maintaining the child, and the civil nature of such a proceeding is such that a verdict of guilty against the putative father may be rendered upon the concurrence of three-fourths or more of the members of the jury.”

In the opinion, on page 72, it is stated by Judge Hart:

“The view that, although bastardy proceedings possess the attributes of both civil and criminal proceedings, they are in purpose and effect essentially civil is based on.a fair balance of the characteristics and the fact that bastardy proceedings have more civil than criminal attributes. Among these important characteristics are the facts that the courts agree that a preponderance of the evidence is sufficient to support a judgment of filiation rather than proof beyond a reasonable doubt; and that the accused can not plead double jeopardy in cáse of a reversal of a judgment against him for error.”

Again, on page 73, ibid., it is stated:

“This court, in view of the historical background of the legislation relating to this matter and in view of what appears to be the long settled practice of the inferior courts of this state, is constrained to hold that a bastardy proceeding is essentially a civil action and that the trial court committed no error in the instant case in accepting the verdict of guilty concurred in by nine members of the jury.”

To the same effect is paragraph two of the syllabus in Duncan v. State, ex rel. Williams, 119 Ohio St., 453, 164 N. E., 527:

“A bastardy proceeding is subject to the procedure provided in the Code of Civil Procedure, and a judgment rendered in such a proceeding can only be reviewed if an error proceeding is filed within seventy days from the date of the entry of judgment in the court from which such error proceeding is prosecuted.”

The logical effect of these conclusions is that the provisions of the Code of Civil Procedure, so far as appropriate to an action under the bastardy statutes, are controlling. The Code of Civil Procedure being general in nature, special procedural provisions in the Bastardy Act will take precedence over general provisions in the Code of Civil Procedure.

The following sections of the Code of Civil Procedure require consideration in approaching a solution of the problem presented.

“An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.” Section 11237, General Code.

“There shall be but one form of action, to be known as a civil action. This requirement does not affect any substantive right or liability, legal or equitable.” Section 11238, General Code.

“In every civil action the party complaining shall be known as the plaintiff, and the adverse party as the defendant. The title of a cause shall not be changed in any of its stages.” Section 11239, General Code.

“An action must be prosecuted in the name of the real party in interest, except as provided in the next three succeeding sections. "When a party asks that he may recover by virtue of an assignment, the right of set-off, counterclaim, and defense, as allowed by law, shall not be impaired.” Section 11241, General Code.

‘ ‘ Every pleading must contain the name of the court and the county in which the. action is brought, and the names of the parties, followed by the name of the pleading.” Section 11304, General Code.

‘ ‘ The first pleading shall be the petition by the plaintiff, which must contain:

“1. A statement of facts constituting a cause of action in ordinary and concise language;

“2. A demand for the relief to which the plaintiff claims to be entitled. If the recovery of money is demanded, the amount shall be stated; and if interest is claimed, the time for which interest is to be computed shall be stated.” Section 11305, General Code.

The sections of the Code of Civil Procedure quoted applying to the initiation of a civil action, such as what the pleading or petition shall contain, are obviously inappropriate to the commencing of a proceeding under the Bastardy Act. It is instituted when an unmarried woman makes a complaint in writing under oath before a justice of the peace or in Juvenile Court charging a person with being the father of her child. See Section 12110, General Code; 5 Ohio Jurisprudence, 550, Bastardy, Section 8 (forms for institution of proceedings); Baldwin’s Ohio Civil Practice Manual, Form No. 453 et seq. This affidavit is not a petition, and there is no requirement upon the complainant to employ any form of title to her affidavit. A warrant is issued and the person accused is arrested and incarcerated in the absence of bail. The justice of the peace, if the complaint is filed before him, conducts a hearing and files with the clerk of the Common Pleas Court a certified copy of his proceedings. (Section 12111 to Section 12117, General Code.) Certainly, up to this time, there is no obligation on the complainant to entitle her proceeding or to designate parties in any caption. It is to be presumed that the justice will in some way designate the proceeding before him. Any error in such designation may not be charged to the complainant.

If the complaint is filed in the Juvenile Court, pursuant to Section 12115, General Code, the judge fixes a time for trial and the case proceeds as provided by the subsequent sections of the act.

Again, there is no requirement or provision either in the Bastardy Act or Code of Civil Procedure for designation by the complainant of a title for her action. It would seem that her only duties are to swear to and file the complaint with the justice of the peace or Juvenile Court, appear, testify and accept what the court may award her. It is to be presumed that in many cases she would not even employ counsel, at least until the time of trial. It is to be presumed also that the Juvenile Court will in some way entitle the action.

The complainant can not be prejudiced by any misconception or action by these courts or the officers thereof in giving a title or caption to the action.

In Cincinnati Traction Co. v. Ruthman, 85 Ohio St., 62, 96 N. E., 1019, Ann. Cas. 1913A, 911, in the opinion at page 70 it is stated:

“Now it is a rule of general application, if not of universal application, that where a party in the prosecution of a right does everything which the law requires him to do, and fails to attain his right wholly by the neglect or misconduct of an officer charged with a public duty with respect thereto, the law will not permit the diligent party to suffer detriment by reason of such neglect; a condensed expression of the rule being that the wrongful act of the judge shall not, in law, prejudice the well-intended acts of the party.”

The complainant’s action, therefore, could not be dismissed on this ground.

As to the proper title of a bastardy action to be selected by the justice of the peace or trial court, the matter seems to have been decided in our first report of Supreme Court decisions.

See Devinney v. State, Wright, 564. In paragraph two of the syllabus (not at the time of decision the law of the case) it is stated:

“A prosecution in bastardy is only quasi criminal, and if brought in the name of the state at all, it should appear to be on the relation of the prosecuting witness. Semble, it is more proper to use her name alone.”

In the opinion, at page 565, it is stated:

‘ * This prosecution is quasi criminal, but not strictly so, and if conducted in the name of the state at all, it should appear to be on the relation or complaint of the real party. We think it would be more proper to carry on the suit in the name of the party complaining.”

An examination of the Ohio, Ohio State, Circuit Court, Circuit Court, New Series, and Court of Appeals reports will show that the suggestion of the Supreme Court in Devinney v. State, supra, was followed up to the year 1897. The last case in the Supreme Court carrying the complainant as a party is Miller v. Busick (1897), 56 Ohio St., 437, 47 N. E., 248. The next case is Powell v. State, ex rel. Fowler, 84 Ohio St., 165, 95 N. E., 660, 36 L. R. A. (N. S.), 255, decided in 1911.

In the Circuit Court, the last party designation is in Pollman v. James (1896), 11 C. C., 557, 5 C. D., 275; the next bastardy case being State, ex rel. Herr, v. O’Brien (1897), 14 C. C., 300, 7 C. D., 386.

Cases involving suits on bonds were usually styled “State vs..........”

The reason for the change does not appear unless it be due to legislation occurring in the Act of 1878 (75 Ohio Laws, 597, 740), containing a revision of the Code of Civil Procedure, when the bond formerly required to be given the township trustees (70 Ohio Laws, 111) was required to be given to the state.

Under the present applicable provisions of the act, the requirement as to bond is:

“The court shall require the reputed father to give security for the- payment of the support, maintenance and necessary expenses of the complainant caused by the pregnancy and childbirth together with the cost of prosecution.” (Section 12123, General Code.)

Under the present law and that in force at the time the complaint was filed, the bond, as indicated, was given to secure payment of the award to the complainant and not for the direct maintenance of the child. 110 Ohio Laws, 299 (1923); 119 Ohio Laws, 735. (1941); 124 Ohio Laws, 196,197 (1951). Thus, today the state has only a secondary interest in the performance of the order. If the payments are made to the mother, the child will in all probability not become a,charge upon the state. Compliance with the award, however, does not relieve the father from the obligation involved in Section 13008, General Code, and he'may be prosecuted for failure to support his child as in other cases. State v. Schwartz, 137 Ohio St., 371, 30 N. E. (2d), 551.

Under the former acts, the order was made for support of the child. 75 Ohio Laws, 742.

It would seem, therefore, that the conclusion expressed in Devinney v. State, supra, is today, more especially in view of the mere secondary interest of the state in the outcome of a bastardy proceeding, peculiarly appropriate. However, as pointed Out, failure to comply with that conclusion may not be charged against the complainant, and does not require reversal of a judgment in her favor where the proper officers failed to comply with the conclusion. Especially is this true in view of the obligation of the court stated as follows in the opinion of Gibson v. Solomon, 136 Ohio St., 101, 107, 23 N. E. (2d), 996, 125 A. L. R., 903:

“The three cases last cited take cognizance of the long established rule that courts will look beyond the nominal party whose name appears formally upon the record and will treat as the real party him whose interests are involved in the litigation — one responsible for instituting an action and who actively participates in its prosecution. Code v. Favorite, 69 Ill., 457; Peterson v. Lothrop, 34 Pa. (10 Casey), 223; Quinn, Aud., v. State, ex rel. Leroy, supra (118 Ohio St., 53, 160 N. E., 455), quoting from 15 Ruling Case Law, 1009, Section 483; 1 Freeman on Judgments (5 Ed.), 939, Section 432.”

See, also, Morisse v. Billau, 70 Ohio App., 215, 45 N. E. (2d), 798; and Roberts v. Sogg, 30 Ohio Law Abs., 523.

As to the second ground for reversal, reference is again made to the Code of Civil Procedure — Section 11247, General Code, which provides:

“The action of an insane person must he brought by his guardian; and of an infant by his guardian or next friend. When the action is brought by his next friend, the court may dismiss it, if it is not for the benefit of the infant, or substitute the guardian, or any person, as the next friend. ’ ’

In the Bastardy Act (Section 12134, General Code), it is provided:

“In case of the death or disability of an unmarried woman who would otherwise be eligible to make complaint as provided in this chapter, the executor, administrator or guardian of such unmarried woman, or a probation officer of the Juvenile Court or a representative of the Division of Charities, Department of Public Welfare, acting as guardian ad litem of such unmarried woman, whether she be of age or not, may make and prosecute such complaint, with like effect, as if prosecuted by the mother herself. * * *” (Emphasis added.)

The application of either of those sections forecloses the institution or prosecution of the action by a minor. No application was made to substitute a guardian ad litem or other person to prosecute the action; hence, we are not called upon to consider here whether such substitution could have been made.

The case of Durst v. Griffith, 43 Ohio App., 44, 182 N. E., 519, is mentioned as being contrary in holding to the conclusions herein expressed. That case was decided in 1932. In the report it does not appear when the complaint was filed. In the opinion, at page 48, it is stated: tardy or elsewhere for the appointment of a guardian ad litem to protect the interests of an infant defendant in that sort of proceeding, and none is therefore required. ’'

“Now Section 12110, seeking not to punish, but to enforce the performance of a civil duty (Carter v. Krise, 9 Ohio St., 402), provides for the arreso of any person charged with being the father of an illegitimate child and the subsequent provisions provide for his trial. No provision is found in the chapter on bas-

Certainly, it would seem that the court did not have before it the present applicable provision contained in Section 12134, General Code.

The judgment of the trial court is affirmed upon the second ground stated as a basis for dismissal of the action.

Judgment affirmed.

Matthews, P. J., and Hildebeant, J., concur.


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Weston, Appellee, v. David, Appellant.
    (No. 7838
    Decided April 26, 1954.)

      Mr. S. Arthur Spiegel, for appellee.

      Messrs. McIntosh é Moore, for appellant.
   Matthews, P. J.

A rubber mat slipped from the stair tread when the plaintiff, appellee herein, stepped upon it on her way down the stairs and she was caused to fall to the floor at the bottom of the stairs, by reason of which she received physical injuries. She instituted this action to recover damages on account of snch injuries. The issues of fact were submitted to a jury which returned a verdict in her favor. The court overruled defendant’s motions for an instructed verdict, for judgment, and for a new trial, and entered judgment on the verdict. This appeal is by the defendant from that judgment.

It appears from the evidence that sometime' prior to October 1949 the defendant became the owner of a two-story residence on Alaska Court, Cincinnati, Ohio. It seems to have been planned for occupancy by one family only, and was being so occupied at the time defendant purchased it. Sometime thereafter, defendant made certain alterations on the second floor so that it could be occupied as a separate unit. She installed a stove, sink, refrigerator, table, and other kitchen utensils in one of the rooms, and a couch, chairs, and other furniture in the other room, so that the second story could be considered a fully equipped two-room apartment, excepting linen, dishes, and silverware, and also excepting a bathroom. There was only one bathroom in the building, and that was on the first floor across a small vestibule at the bottom of the stairs leading to the second floor, down which stairs the plaintiff fell. Other than from this stairway, this vestibule could be entered either through the outside door, or from the rooms on the first floor through a door opposite the outside door, or through a door leading therefrom into the bathroom and from .thence into the vestibule. Outside the two rooms on the second floor there was storage space between the room walls and the outside walls of the building, which could be entered through small doors in closets in each of the rooms.

Prior to the plaintiff’s occupancy of the two rooms on the second floor, they had been occupied by one Skinner, who had left some dishes and a few things of negligible value in the storage space.

About November 1, 1949, plaintiff learned through a notice in a newspaper that there was space available for occupancy at this place on Alaska Court and she and her husband went there to inquire about and inspect the premises. They met the defendant and her husband there and they went up the stairs and looked in the rooms. That they conversed and reached an agreement is clear, but little, if any, of the conversation appears in the record. No written agreement or lease was executed. That the plaintiff and her husband were to have the occupancy of the two furnished rooms on the second floor and the use of the stairs to reach them and the nonexclusive use of the bathroom on the first floor for a consideration of $50 per month is conceded. The plaintiff was furnished with a key to the outside door at the foot of the stairs and could thereby exclude those on the outside from the building, but there was no means provided for excluding those within the building from the rooms on the second floor. So far as the record shows, the stairway was not discussed, although it is manifest that the plaintiff had a right to use it while she occupied the two rooms.

The plaintiff and her husband moved into these two rooms on the second floor on or about November 20, 1949, and the accident occurred on or about December 10, following. During that time, the defendant and her husband occupied the first floor rooms and all the parties made common use of the bathroom. Also, during that time, the defendant entered the storage space on the second floor through one of the rooms to get some dishes or other articles that had been left there by the former tenant. No objection or protest was made to her doing so.

It would be difficult — perhaps impossible — to place all the rights and duties of these parties to this transaction in a single bundle and in a single legal category. As to the rooms themselves (apart from the admission in the answer), there is some doubt as to whether the relation of landlord and tenant or that of lodger and roomer was created. As to the bathroom, was the relation that of tenants in common, or that of licensor and licensee? The same uncertainty exists as to the stairway where this accident happened.

However, for the purposes of this case, we are not required to determine these different questions. No matter what conclusion might be reached as to the legal category into which the relation of the parties falls, it would include the finding that the defendant for a consideration gave the plaintiff the right to use this stairway. At least, the plaintiff was an invitee, toward whom the defendant owed the duty to exercise ordinary or reasonable care for her safety.

It is said in 29 Ohio Jurisprudence, 466, Section 61:

“One who expressly or by implication invites others to come upon his premises must exercise ordinary care to guard them against danger, and to that end he must exercise ordinary care to render the premises reasonably safe for the invitees. He must use ordinary care in keeping his premises free from dangers which are not discernible by a prudent person, using ordinary care, under the circumstances.”

(1) The first contention of the defendant is that there is no evidence that she retained control. We are unable to agree with defendant on this point. As owner, she had possession of this stairway as an incident of such ownership, unless she had divested herself thereof by transferring to another some present possessory title. If she had done so, she would thereby have lost the right to invade that possession. What does the record show on this subject?

It strikes one at once that there is no word indicating an intent to convey the possession. If we are to find that a transfer took place, it must be by implication. The only evidence from which such an inference could be drawn is the fact that the defendant for $50 per month leased or gave the plaintiff the right to occupy the two rooms on the second floor, to reach which this stairway was the only means provided. From that fact the conclusion can be drawn that the plaintiff was granted the right to use the stairway as a means of access to the second floor, but it furnishes no basis for an inference that the defendant was excluded from its use.

On the other hand, it appears that shortly before this arrangement was made with the plaintiff and under similar circumstances, the defendant had repaired this stairway, which act was inconsistent with the conclusion that the occupancy of the two rooms on the second floor carried with it by implication the exclusive possession of the stairway. Immediately after this accident, upon being notified, the defendant proceeded to repair the defect without any disclaimer of a duty so to do, which duty could only exist under the circumstances of this case by virtue of retention of possession by the defendant.

Then there was the evidence relating to the storage rooms on the second floor. It does not appear that any other storage rooms were provided for the occupants of the first floor, and it does appear that there were some articles stored therein, and that the defendant, during the plaintiff’s occupancy of the two rooms, entered the storage rooms and removed some of the articles.

Also, the indefiniteness of the arrangement already noted prevents a finding as a matter of law that the defendant transferred the exclusive possession of this stairway to the plaintiff.

The jury found on this issue in favor of the plaintiff. We cannot say that its finding is contrary to law or manifestly against the weight of the evidence.

(2) Next, it is urged that the court erred in refusing to give a special charge requested by defendant. It is stated in this special charge that if the plaintiff knew that there was no handrail and used the stairway notwithstanding, “then she was negligent,” and, if such negligence contributed in the slightest degree to her injuries, she could not recover. Counsel rely on Miller v. Stambaugh-Thompson Co., 32 Ohio Law Abs., 105, 34 N. E. (2d), 309, to support his position. We do not think it does so. In that case, the only defect relied on was the absence of a handrail. That was the only negligence alleged. The plaintiff was thoroughly familiar with the absence of a handrail. As to the cause of her fall, the evidence was conflicting. She testified that she became dizzy. Others testified that after reaching the top, she stood on one foot to remove an overshoe. What the court decided was that the finding that absence of the handrail was the cause of her fall was manifestly against the weight of the evidence and remanded the case for a new trial. The court did not hold that use of a stairway after knowledge that there was no handrail was negligence as a matter of law.

We find that the court did not err in refusing to give the special charge.

(3) Finally, it is urged that the court erred in its general charge. It is said that the court placed the burden of proof upon the defendant. The claim is predicated upon the following language in the general charge:

“If you should find by a preponderance of the evidence that the defendant did not retain and reserve control of the stairway and you also find that the defendant did not fail to do anything else which was incumbent upon her to do, then your verdict must be for the defendant.”

An anlysis of this language discloses that in fact and in law it is not an incorrect statement. Of course, if the jury found by a preponderance of the evidence that defendant did not retain control of the stairway or fail in any other respect in the performance of her duty, she was entitled to a verdict. The court did not say that only by a finding of a preponderance of the evidence in her favor was she entitled to a verdict. It stated one condition under which defendant was entitled to a verdict. It did not exclude other conditions.

In three special charges, the court properly defined the burden of proof and placed the burden upon plaintiff to prove the defendant negligent “by the greater weight of the evidence” — “by the preponderance of the evidence — ” repeating the latter phrase twice, and in the general charge, the court instructed the jury in several places on this subject, as follows:

“In this case the plaintiff must prove her claim or contention by a preponderance of all of the evidence before she would be entitled to recover. By burden of proof is meant the duty of proving the facts in dispute on the issues raised between the parties.

“To make out a case of negligence against the defendant, the plaintiff must prove by a preponderance of all the evidence the want of ordinary care on behalf of the defendant. She must also prove that the want of such care, the negligence complained of was the direct and proximate cause, of the injury and the damage she claims to have sustained.

“If you should find by a preponderance of the evidence that the owner retained control of the stairway in this case, the plaintiff must prove by a preponderance of all of the evidence that the stairway upon which she claims to have fallen was not maintained in a reasonably safe condition and that such condition was the proximate cause of her injury before she would be entitled to recover from the defendant.
“If you should find by a preponderance of the evidence that the owner retained control of the stairway and that the stairway in question was not in a reasonably safe condition at the time the plaintiff claims she fell and that such condition was the proximate cause of the fall and any injury the plaintiff may have sustained by reason thereof, then your verdict must be for the plaintiff if the plaintiff was free from negligence on her part.
“If you should find by a preponderance of the evidence that the owner retained control and that the proximate cause of any fall or any injuries received by the plaintiff was the negligence of the defendant and the plaintiff was free from negligence then your verdict will be for the plaintiff. ’ ’

We are of the opinion that the jury could not have been misled by the language complained of and, therefore, no prejudicial error was committed.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


author: Conn, J. Fess, J.,

text:
    Lindsay, Appellee, v. The Baltimore & Ohio Rd. Co., Appellant.

      (No. 674
    Decided June 21, 1954.)

      Messrs. Anderson, Will & O’Donnell and Messrs. Young & Young, for appellee.

      Mr. G. Ray Craig and Mr. T. Lamar Jackson, for appellant.
   Conn, J.

The defendant has appealed to this court on questions of law from a judgment rendered in the Common Pleas Court in favor of plaintiff.

The action was brought to recover damages claimed to have been sustained by plaintiff by reason of the negligence of the defendant.

Plaintiff alleges in his third amended petition that the defendant for many years has operated a railroad through the village of Greenwich in an easterly and westerly direction at about right angles over Townsend Street in said village, there being at that point a separation of grades, the tracks of defendant being raised above the level of the street, with embankments on each side and a bridge with stone abutments supporting same, and that on December 20, 1950, defendant operated a train easterly through such village over Townsend Street, one car of which was used to carry United States mail.

Plaintiff alleges further that on said day he was walking in a southerly direction on the westerly sidewalk of Townsend Street; that, just as he had passed through the viaduct, a mail sack, thrown from the train, struck plaintiff and seriously and permanently injured him; and that for many years last past, and continuously to and including December 20, 1950, it had been the practice of defendant, in the operation of its trains, to permit the throwing off of mail sacks from its trains near the west end of the bridge over Townsend Street, which mail sacks would then roll or fall into the street.

Plaintiff alleges that defendant was negligent in failing to provide a guard to prevent mail sacks from falling into Townsend Street when thrown from. its moving trains; that no signal or warning was given plaintiff; that the defendant operated its train at a high and unlawful speed and in violation of the village ordinance; and that, with full knowledge of the use of the mail car in its train, defendant failed to exercise any supervision over the same.

In the answer of defendant, it is admitted that, at the time alleged, it was drawing a train of its cars in an easterly direction over the embankment and across the bridge at Townsend Street, and that one of the cars in its train was a United States mail car..

Defendant denies generally the allegations in plaintiff’s third amended petition, and avers that, if plaintiff was struck by a mail sack ejected from such train, it was thrown by a United States postal clerk who was under the sole control of the United States government; that whatever injuries plaintiff may have received were not of the extent or seriousness as alleged; and that they were proximately caused by the United States mail clerk and not by defendant.

Six alleged errors of the trial court are assigned by defendant, which, more briefly restated, are as follows :

1. Error in failing to sustain defendant’s motion for judgment and in submitting the case to the jury, in the absence of any negligence on the part of defendant, and, further, where the proximate cause of plaintiff’s injury was the negligence of an employee of the postal department of the United States government.

2. Error in submitting to the jury the element of speed, where there was no evidence of the speed of the train and no evidence that speed contributed to the accident.

3. Error in refusing to give a special charge requested by defendant before argument.

4. Error in permitting a medical witness, qualified as an expert, to testify with respect to conclusions reached by another medical expert, not appearing as a witness.

5. The amount of the verdict is not sustained by the evidence submitted, and was determined under the influence of passion and prejudice.

1. At the close of plaintiff’s evidence, defendant moved that the case be arrested from the jury and that the jury be directed to return a verdict for the defendant. Defendant’s motion was not renewed at the close of all the evidence. Defendant having proceeded to introduce its evidence following the overruling of its motion for a directed verdict thereby waived the issue raised by its motion.

Following the return'of the verdict for plaintiff, defendant moved for judgment notwithstanding the verdict, on the law and the evidence, and subsequently moved the court to vacate the judgment that had been entered for plaintiff and to grant defendant a new trial. Each of these motions was overruled and judgment was entered for plaintiff.

It is the contention of defendant that, pursuant to the federal statutes with respect to the mandatory control of rairoads by the Postmaster General in the employment of railroads for the transportation of United States mail (Sections 481, 525, 526 and 527 of Title 39, U. S. Code), and the rules and regulations of the Interstate Commerce Commission, the intervening negligent act of the postal clerk, done in the course of his employment, would be the proximate cause of any injury sustained by plaintiff, which would render the federal government liable, but not the defendant. This contention calls for a careful appraisal of the issues and the evidence.

The record discloses that the handling of United States mail and provision for a mail car suitable for that purpose, and also the receiving and distributing of mail from the train at a given postoffice, are all under the control of federal employees. However, in selecting the place where the mail for a particular postoffice should be discharged, it is the practice to consult the officers of the railroad and ascertain whether or not the point about to be selected is “0. K. from an operating standpoint” and whether “that point picked does not interfere with the operation of the railroad.”

Furthermore, the evidence tends to show that for a number of years the point fixed by the action of the postal department and defendant for the discharge of mail bags from trains traveling in an easterly direction through the village of Greenwich was approximately 36 feet west of the overhead bridge at Townsend Street in said village, and that, at this point, a frame receptacle had been constructed by defendant to stop or contain the mail bags and keep them from going over the embankment and into Townsend Street. The evidence shows, without objection, that a larger receptacle had been constructed by defendant following plaintiff’s injury, which receptacle was located at a point 50 feet farther west from the overhead bridge on Townsend Street.

It appears further from the record that, over a long period, mail bags discharged from the postal ear attached to the train of defendant would miss the receptacle, or would not otherwise be contained therein; that they would land at various places along the track of defendant and also over the embankment or westerly abutment of the bridge into Townsend Street; and that the stone abutment supporting the bridge over the street and the sidewalk underneath, on the westerly side of the street, were practically contiguous, as shown by defendant’s exhibits introduced in the case.

It is quite uniformly heid that where an object is thrown or falls from a moving train by reason of an act of one not in the employment of the railroad and which causes injury to a third person, no liability arises as against the railroad. 75 Corpus Juris Secundum, 351, Section 932.

The general rule of ‘ ‘ liability of a railroad company for injuries from negligence of a postal clerk on a train” is concisely stated in an annotation in 34 A. L. R., 520, as follows:

“A railroad company, as a general rule, is not responsible for the negligent acts of a postal clerk placed upon a train by the federal government in charge of its mails, because such clerk is not an employee or agent of the railroad company, and therefore his acts are not its acts, and the doctrine of respondeat superior does not apply.”

Although a postal clerk on a train is not ordinarily regarded as an employee of the railroad company rendering the carrier liable'for his negligent acts, yet where a mail' clerk engages in dangerous practices over a period of time, such as throwing mail bags off of moving trains under circumstances likely to cause injury to third persons, the railroad company will be chargeable with knowledge of such dangerous conduct. 10 American Jurisprudence, 225 and 226, Sections 1369 and 1370; 75 Corpus Juris Secundum, 351, Section 932.

In 22 Ruling Case Law, 961, Section 196, the rule of liability applicable here is stated in the following terms:

‘ ‘ The question of the liability of a railroad company for injuries of this nature arises frequently where the injury has been caused by mail bags thrown from moving trains by United States mail agents in the discharge of their official duties. It is generally held in such cases that the fact that the mail agent is not in the employ of the railroad company will not relieve it from liability if it appears that it is the custom to throw the bag from the moving train and the railroad company has knowledge of such negligent practice.” Citing: 6 L.R.A. (N.S.), 581; L. R. A. 1917B, 916; 13 Ann. Cas., 78; 1917D, Am. & Eng. Ann. Cas., 541.

In the instant case, the liability of the railroad company does not arise by reason of the application of the doctrine of respondeat superior. Its liability is predicated on its own negligence in failing to adopt and employ reasonable means to prevent a practice or course of conduct which it is presumed to have had knowledge of and that such conduct would, in all probability, cause injury to third persons, as is disclosed by the record before us. 10 American Jurisprudence, 226, Section 1371.

We conclude that defendant’s assignment of error is not well taken and should not be sustained.

2. The defendant urges, with much persuasion, that the trial court erred in submitting the issue of speed to the jury for the reason that plaintiff offered no evidence showing the speed of defendant’s train and no evidence that speed was a contributing cause to the injury sustained by plaintiff.

The issue of speed was raised on the pleadings. Plaintiff alleged that defendant was operating its train “at a high, unlawful and dangerous rate of speed” when the mail bag was thrown from the car. Plaintiff offered no evidence of a specific character on this issue.

It is urged that since defendant could have called the engineer or fireman, who would have had knowledge of the speed of the train, and did not do so, an inference arises thereby that if those employees of defendant had been called their testimony would have been favorable to plaintiff on this issue. This rule has wide application, but it is our opinion that it is inapplicable in this case. Plaintiff had the burden of proof on the issue of speed, as, under the elementary rule, he who affirms must prove.

Plaintiff testified that defendant’s train was going pretty fast. This testimony is indefinite, has little probative value, and does not directly support the issue. In any event, the mail bag was thrown in such manner as to fall or roll over the southerly side of the embankment when plaintiff was emerging from the underpass and while he was walking southerly on the sidewalk, which was in close proximity to the stone abutment and embankment. Under these conditions, it appears to follow that the speed of the train was not proximately related to the fact that the mail bag struck plaintiff. In other words, it appears that the mail bag rolled over the embankment or fell from the top of the abutment, and that thereupon it struck plaintiff.

The trial court in its general charge erroneously submitted to the jury the issue of whether defendant operated its train at a negligent rate of speed at the time the mail bag was thrown from the train, by reason of the failure of proof. However, on the record before us, it does not appear that the error was prejudicial and, pursuant to Section 11364, General Code (Section 2309.59, Revised Code), defendant’s assignment of error should not be sustained.

3. The defendant, in writing, before argument requested the court to charge the jury as follows:

“If from the evidence in this case you find that the defendant had no control over the discharge of mail from the mailcar by the mail clerk, and that the mail clerk was not in the employ of the railroad company, and was not in any way connected with it as agent, employee or otherwise, your verdict must then be for the defendant.”

The rule is well established that when a party in a civil action requests the court, in writing, before argument, to give the jury a special instruction in writing, and if such instruction correctly states the law applicable to the case, the refusal of the court to do so is prejudicial error. Bradley, an Infant, v. Mansfield Rapid Transit, Inc., 154 Ohio St., 154, 93 N. E. (2d), 672.

The record before us discloses that the postal authorities and the local postmaster decide where the mail may be discharged by the carrier from passing trains, subject to the place so selected being “01 K. from an operating standpoint” of the railroad.

It appears further that over a long period of time mail had been discharged from defendant’s trains, moving easterly, at or near the overhead crossing at Townsend Street, and that from time to time mail bags had fallen or rolled over the embankment or abutment and into the street. It is inferable from the record that the defendant had notice or knowledge of these salient facts.

It follows that the requested charge was inapplicable to the undisputed facts in this case. If the charge as requested had been given, it, in effect, would have taken from the consideration of the jury relevant and material evidence on the issue of defendant’s negligence. It is our conclusion that this assignment is not well taken and should not be sustained.

4. The fourth assignment of error is predicated on the action of the trial court in permitting a medical witness of plaintiff, qualified as an expert in neurology and psychiatry, to testify in effect that he had arranged with a well-known nerve and brain surgeon of Cleveland, Ohio, to examine plaintiff, and to testify also that thereafter he consulted this medical expert and found that they were in agreement as to the character and extent of plaintiff’s injuries.

We quote from the record as follows:

“* * * j)^ y01I seiec-(; this Doctor Nozig, the neurosurgeon for this purpose? [Examination and consultation.] A. Yes, sir.
“Q. Did you have any consultation with Dr. Nozig after he examined Terry Lindsay? A. Yes, sir.
“Q. What were the results of your consultation with Dr. Nozig?
“Mr. Jackson: I want to object to that.
“Q. As far as your diagnosis was concerned?
“Mr. Jackson: It seems apparent to me, your honor, that they are using the diagnosis to arrive at a conclusion, which to me is not correct unless we have a chance to see Dr. Nozig.
‘ ‘ Court: Overruled.
‘ ‘ Mr. J ackson: Exception.
“Q. You may answer the question, doctor? A. Dr. Nozig and I talked it over and we both agreed to some degree of post-traumatic encephalopathy and possibly some spinal cord or spinal root injury of the lower cervical and upper thoracic spinal roots and we made certain recommendations where that should be done.
“Q. I don’t want you to give Dr. Nozig’s diagnosis? A. We were in agreement on it.
“Q. In other words, Dr. Nozig confirmed the diagnosis and agreed with you?
“Mr. Jackson: We object to that.
‘ ‘ Court: Sustained.
“Mr. O’Donnell: Exception.”

Later, in the testimony of this expert witness, he was asked to give his opinion on whether there was any connection between plaintiff’s complaint of pain in the calves of his legs “and the condition of post-traumatic encephalopathy.” The witness answered, “no,” and then volunteered the statement that Dr. Nozig and he “both felt that it would be from the spinal cord.”

The broad general rule excluding hearsay evidence is elementary and the reasons supporting an objection to evidence of this character require the citation of no authority. There are some exceptions to the general rule. However, the issue here is not within the exceptions. For an extended consideration and citation of authorities see 17 Ohio Jurisprudence, 276, Section 211. See, also, Walter v. Bowling Green, 16 C. D., 756, 5 C. C. (N. S.), 516; 17 Ohio Jurisprudence, 289, Section 219; Salko, Admx., v. Metropolitan Life Ins. Co., 52 Ohio App., 367, 3 N. E. (2d), 664.

It is also uniformly held that the admission of hearsay evidence, when objected to, “is ground for reversal if such evidence is of a nature to be damaging to the adverse party.” 4 Ohio Jurisprudence (2d), 102,. Section 881.

We call attention to the early case of James Wilson & Co. v. Barkalow, 11 Ohio St., 470, and the following statement of the law of the case in the second paragraph of the syllabus:

“Where hearsay evidence was objected to, but permitted to go to the jury, the judgment will be reversed, unless it manifestly appear that its admission could not have prejudiced the party against whom it was offered.”

The character and extent of plaintiff’s injuries were put in issue by general and special denials in the answer of defendant. It is clear from the evidence that plaintiff’s injuries were largely of a subjective nature, as disclosed by the extended expert testimony of the neurologist called by plaintiff, and also lay witnesses. Defendant claims that the evidence tends to show that plaintiff, following his unfortunate injury, lived the life of a normal boy. This contention is challenged and there is some evidence supporting plaintiff’s claim of serious injury.

A reviewing court may not usurp the functions of a jury. Where substantial justice has been done, the court, on review, must disregard errors, under the mandatory provisions of Section 11364, General Code (Section 2309.59, Revised Code).

Counsel for plaintiff, in oral argument, contended that if the introduction of the evidence now under consideration was erroneous, it could not have been prejudicial. We note, however, that no further consideration was directly given this fourth assignment of error in plaintiff’s brief, and no citation of authority in support of counsel’s oral argument.

We call attention to the recent case of Hallworth v. Republic Steel Corp., 153 Ohio St., 349, 91 N. E. (2d), 690. The court considered the prejudicial effect of the erroneous admission of certain evidence, in the light of the provisions of Section 11364, General Code. We refer particularly to the opinion of the court, Taft, J., at pages 358 and 359.

In view of the state of the record and the importance of the sharply controverted issue as to the amount of damages, we have reached the conclusion that it does not appear that the admission of snch evidence could not have prejudiced the defendant. By reason of the situation presented, it follows that the judgment of the trial court must be reversed.

As the case must be remanded for a new trial and probably will be retried, it becomes unnecessary to pass on defendant’s fifth assignment of error.

Judgment reversed.

Fess and Deeds, JJ., concur.

Fess, J.,

concurring. Railroads are not primarily liable for the negligence of postal employees. They are in no sense servants or employees of the railroad. The only ground upon which the railroad is held liable for their acts is that they travel on the railroad’s cars, and by reason of that fact have it in their power, by dangerous practices, to injure those who may lawfully be in close proximity to the railroad, and to whom the company owes a duty of exercising ordinary care to protect from injury by reason of the passage of its trains, and that the railroad has without objection suffered such mail clerks to indulge in dangerous practices. The basis of liability of the railroad as disclosed by the so-called “mail bag cases” is not the doctrine of respondeat superior but is the sufferance of a practice dangerous to those in proximity to its tracks and to whom it owes the duty of protection from injury. Huddleston v. St. Louis, Iron Mountain & Southern Ry. Co., 90 Ark., 378, 119 S. W., 280; Missouri Pacific Rd. Co. v. Angus, 188 Ark., 300, 65 S. W. (2d), 543; Missouri Pacific Rd. Co. v. Newton, 205 Ark., 353, 168 S. W. (2d), 812; Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Warrum, 42 Ind. App., 179, 82 N. E., 934, and 84 N. E., 356; Lewis v. Pennsylvania Ed. Co., 95 Ind. App., 19, 165 N. E., 774, and 169 N. E., 68; Louisville & N. R. Co. v. Daniels, 135 Miss., 33, 99 So., 434, 34 A. L. R., 516; Newberry v. Minneapolis, St. Paul & S. S. Marie Ry. Co., 214 Wis., 547, 252 N. W., 579. Cf. annotation, 34 A. L. R., 520; Norris v. Chicago, M., St. P. & P. R. Co., 74 S. D., 271, 51 N. W. (2d), 792; and Missouri Pacific Rd. Co. v. Shores, 209 Ark., 539, 191 S. W. (2d), 580 (cake of ice falling from troop train). 75 Corpus Juris Secundum, 351, Section 932; 44 American Jurisprudence, 701, Section 467.

The ‘/mail bag cases” adopt the principle that to passengers and others lawfully upon railroad premise's such as the platform, the railroad has the duty to protect such persons from injury by warning or otherwise of a dangerous practice actually or constructively known to the railroad. • The principle has been extended to persons lawfully on the streets and highways in the proximity to the tracks. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Warrum, supra; Missouri, Pacific Rd. Co. v. Newton, supra; Missouri, Kansas, R. Co. v. Ashlock (Texas, 1940), 136 S. W. (2d), 943; 75 Corpus Juris Secundum, 434, Section 986. The principle has also been applied to injury received by a person from a bundle of newspapers thrown from a moving train by an employee of a news company, on proof of the existence of a custom known to the railroad of throwing newspapers at the place where the injury occurred. Dwyer v. President, 17 App. Div., 623, 47 N. Y. Supp., 1135; Clifford v. New York Central & Hudson Rd. Co., 111 App. Div., 809, 97 N. Y. Supp., 954.

In the instant case there is no evidence tending to show that the defendant took any measures by remonstrance or otherwise to prevent the continued practice of throwing mailbags down the embankment and into the street. Although a carrier is required to exercise the highest degree of practical care toward passengers on its trains as well as upon its premises made available for passengers (Jones v. Youngstown Municipal Ry. Co., 133 Ohio St., 118, 12 N. E. [2d], 279; contra, Taylor v. Pennsylvania Co., 50 F., 755) and ordinary care toward persons other than passengers lawfully upon its premises, upon reason and logic the same duty to exercise ordinary care should be imposed upon the railroad toward persons upon a street in proximity to its tracks.

The evidence fails to disclose that either the speed of the train or the failure to provide an adequate receptacle to catch the mailbags had any causal connection with injury. Neither of these alleged items of negligence should have been submitted to the jury. In my opinion, the jury should have been instructed that if it found from the evidence that the mailbag alleged to have injured the plaintiff was thrown from the mail car by a postal employee, then the defendant would not be liable for any negligent act of such postal employee, but if it should find by a preponderance of the evidence that the mail clerks had been for some time accustomed to throw mailbags from the mail cars in such manner that they would roll into the street and that the defendant, through its agents and employees, had actual knowledge of such practice, or that such practice had continued for such length of time, prior to the injury alleged to have been sustained by the plaintiff, that the defendant could or should have known of such practice, and that the defendant made no objection thereto, and if it further find that such conduct was the proximate cause of plaintiff’s injury, in such event its verdict should be for the plaintiff. Cf. Missouri Pacific Rd. Co. v. Newton, supra.

In the light of the evidence of the continuance of the dangerous practice without remonstrance on the part of the defendant, the defendant’s special request to charge was properly refused.


text:
    Alms & Doepke Co., Appellee, v. Johnson et al., Appellees; Ohio Farmers Indemnity. Co., Appellant.
    (No. 7824
    Decided March 8, 1954.)

      Mr. Anthony J. DeCenso and Mr. Julius Samuels, for appellee.

      Mr. Leo J. Brumleve, Jr., and Mr. Edward J. Utz, for appellant.
   Matthews, P. J.

This action was commenced in the Court of Common Pleas of Hamilton County, Ohio, on August 15, 1952, against Marian C. Johnson, against whom the plaintiff had theretofore obtained a judgment for $443.59, in the Municipal Court of Cincinnati, Ohio Farmers Indemnity Company, a corporation,.and Lester W. Bright. It alleged that it had caused execution to be issued on such judgment, which had been returned unsatisfied, and that Marian C. Johnson did not have sufficient real or personal property subject to execution to satisfy the judgment. Plaintiff alleged also that Ohio Farmers Indemnity Company and Lester W. Bright had property, money, and credits in their possession belonging to Marian C. Johnson.

The prayer is that Ohio Farmers Indemnity Company and Lester W. Bright be enjoined, from paying anything to Marian C. Johnson, and that her property in their possession be applied in satisfaction of plaintiff’s judgment against her.

The court found in favor of the plaintiff and rendered judgment in its favor. This appeal is from that judgment.

While the defendants filed general denials, there is actually no dispute on essential facts. The plaintiff’s judgment against Marian C. J ohnson was rendered on November 6, 1948. On February 1, 1952, she was injured in a collision with an automobile owned and operated by the defendant Lester W. Bright, resulting in a claim by her against him for damages. At that time, Lester W. Bright and Betty S. Bright, his wife, were the insured in a policy of insurance issued to them by the defendant Ohio Farmers Indemnity Company in which it agreed, under certain conditions, to protect them against loss resulting from claims for damages for personal injuries inflicted in the operation of a described automobile.

Subject to certain conditions, the following is the provision fixing its liability.

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness, or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance, or use of the automobile.”

On September 11, 1952, Marian C. Johnson commenced an action in the Common Pleas Court of Hamilton County for damages on account of the personal injuries sustained by her in the collision with the automobile owned and operated by the defendant Lester W. Bright.

On September 25, 1952, the defendant Ohio Farmers Indemnity Company paid Marian C. Johnson the sum of $4,000, “in full satisfaction and discharge of all claims against Lester W. Bright accrued or to accrue with respect to * * * all injuries * * * arising from an accident occurring on or about the 1st day of February, 1952.”

The defendants in the action now before the court were served with summons on August 15, 1952, so that there can be no doubt that Ohio Farmers Indemnity Company must be charged with knowledge of the plaintiff’s unsatisfied judgment at the time it made payment to Marian C. Johnson, the judgment debtor. Therefore, we assume that this case must be determined as though the payment had not been made. It is not claimed otherwise.

The first subject to be considered is the legal status of the parties under the insurance policy issued by Ohio Farmers Indemnity Company to Lester W. Bright and his wife. It seems clear that when it was issued, the only parties to it were the insurer and the insured, who were also the beneficiaries. The time for performance by the insurer was when injury was inflicted through the wrongful act of the insured. It then became the insurer’s duty, upon notice, to defend and protect, but that duty was owed to the insured, that is, to Lester W. Bright and his wife. It owed no duty under the policy, or otherwise, to Marian C. Johnson. It so happened that its duty to defend and indemnify the insured placed it in opposition to her. Ohio Farmers Indemnity Company was not obligated to her in any way, and, of course, it was not obligated to the Alms & Doepke Company. It was obligated to Lester W. Bright, against whom Marian C. Johnson had a claim resulting from the physical injury she had received in the collision with the automobile owned and operated by Bright.

Considering the plaintiff’s case, as based solely on the rights of the parties as determined by the. policy of insurance and unaffected by any statutory provision, it presents the question of whether a judgment creditor, either by proceedings in aid of execution or by creditor’s bill, can subject to the payment of its judgment a debt due to a debtor of the judgment debtor. It seems clear to us that this cannot be done. It would .violate the fundamental rule that only the property of the judgment debtor can be subjected to the satisfaction of the judgment. Certainly, in the absence of a statute to the contrary, the judgment debtor, Marian C. Johnson, was not a party to the policy of insurance, either expressly or by implication. The policy was issued to and for the protection of Lester W. Bright and his wife. It is true that their protection might require payment to Marian C. Johnson, but that certainly would not place her in the class of third party beneficiaries. She had no property right of any sort in the policy of insurance. Her debtor was the owner of that chose in action.

We have been cited to no Ohio case in which this subject has been discussed, and we have found none. However, in other jurisdictions, relevant decisions are not lacking. As frequently happens as to fundamental principles, the cases are not numerous.

In Jones v. Huntington, 9 Mo., 249, a much stronger appeal to the conscience of the chancellor was presented, and still the chancellor denied relief. Jones had recovered a judgment against Hamilton, upon which execution had been issued and returned unsatisfied. Myers, of the state of Illinois, who was indebted to Hamilton, was beyond the jurisdiction of the Missouri court. Huntington, of Missouri, was indebted to Myers. The creditor’s bill sought to subject the debt due by Huntington to Myers to the J ones judgment against Hamilton, on the ground that Myers was a nonresident. Myers entered his appearance and demurred to the bill.

In affirming the action of the trial court, sustaining the demurrer and dismissing the action, the Supreme Court said, at page 250:

“It is hard to imagine a ground on which this proceeding can be sustained. Myers, being a nonresident, and having nothing here on which the jurisdiction of a court of equity could attach, was improperly made a party, and under such circumstances no court would have been warranted in rendering a decree against him. Such a decree would have been null and void. The objection however arising from the fact of his nonresidence has been obviated by his appearing in court, arid entering a demurrer to the bill. He can no longer insist that the courts of this state have no jurisdiction of his person. But although he has given the complainant this advantage, on what principle can he support his proceeding? The case in the bill would go a bow-shot further than any yet has gone. A debtor of the defendant in the execution has, under some circumstances, been made to pay his debt to the plaintiff, but by this bill the plaintiff in an execution seeks to recover his debt from one who is indebted to the debtor of the defendant.”

And, at page 251, ibid., it is stated:

“It is a begging of the question, to say, that the complainant has a right against the debtor of Myers. The effect of the argument is, that a creditor may, in a court of equity, compel a third person to pay his debt, because his debtor is unabie to do it.”

There are other cases in which the same principle has been applied. It is found stated by many writers on the subject. In discussing creditor’s bills in 14 American Jurisprudence, 714, Section 76, it is stated:

“While a judgment creditor may in equity reach a debt due his debtor, he cannot go further and reach a debt to the debtor of his debtor.”

Also, in 21 Corpus J uris Secundum, 1066, Section 16, it is emphasized m bold face type that: “A debt due to a debtor of the debtor is not subject to a creditor’s bill,” and cited in support of the text, among other cases, is Jones v. Huntington, supra.

We conclude both upon reason and authority that a debt due to a debtor of a judgment debtor cannot be subjected to the judgment debt by any proceeding known to the law.

The final question is whether Sections 9510-3 and 9510-4, General Code (Sections 3929.05 and 3929.06, Revised Code), have so altered the relations between indemnity companies and the insured as to enable the injured person after securing a judgment against the insured to require the insurer, by proceedings in aid or by a creditor’s bill, to pay such judgment under favor of Section 11760 et seq., General Code (Section 2333.01 et seq., Revised Code). The action at bar is an independent original action brought under Section 11760, General Code, as distinguished from an ancillary proceeding in aid of execution, such as is authorized by subsequent sections; and it is suggested that the judgment creditor, by resorting to the independent civil action, can reach assets beyond those that could be reached by an ancillary proceeding in aid of execution. That is undoubted!} true, but whichever remedy is pursued, the judgment creditor’s rights are limited to the rights of the judgment debtor. Only the judgment debtor’s property can be applied to the satisfaction of the judgment against him. In pursuit of satisfaction of the judgment against the insured, the rights of the insurer cannot be invaded, destroyed or appropriated. That was the basic reason for our decision in Marquis v. New York Life Ins. Co., 92 Ohio App., 389, 108 N. E. (2d), 227, holding that the cash surrender value of an unmatured life insurance policy could not be garnisheed where it could be done only in disregard of unsatisfied conditions beneficial to the insurer.

Under the terms of the policy, the liability of the insurer to the insured was subject to several conditions. The insured was required to give written notice of the accident as soon as practicable. If claim was made or suit commenced, every demand, notice or summons received was required to be forwarded to the insurer. Even though these conditions were fulfilled, still, no action could be brought until the amount of the insured’s obligation had been finally determined, either by judgment against the insured after actual trial or by written agreement to which the insured, the injured person, and the insurer were parties, and after 30 days had transpired after due proof of performance of all such conditions had been filed with the insurer. Furthermore, the assistance and co-operation of the insured was made a condition and expressly bound them upon request to attend hearings and trials, to assist in effecting settlements, securing and giving evidence, obtaining attendance of witnesses and assisting in the conduct of the trial.

Having complied with all those conditions, the insured was given a cause of action against the insurer. The only mention of an action against the insurer by the injured person is in this provision of the policy:

“Any person or organization or legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy.”

By Section 9510-3, General Code, it is enacted that every policy of insurance such as that issued by the Ohio Farmers Indemnity Company to Bright should become absolute immediately upon the insured becoming obligated on account of bodily injury from a casualty covered by the policy without requiring the insured to satisfy the claim as a condition precedent, and took away from the insurer and insured the power to cancel or rescind the policy thereafter. By Section 9510-4, General Code, any person injured was given the right to have the insurance money provided for in the policy applied on his judgment against the insured, and if his judgment was not satisfied within 30 days he was given a right to file a supplemental petition in the action in which the judgment had been rendered, making the insurer a party and, thereafter, to proceed as in an action at law. It will be observed that the policy is narrower than the statute. The policy authorizes an action only when the liability of the insurer has become fixed by agreement between the insured, the insurer and the claimant, or when fixed by judgment, whereas, the statute authorizes supplementary proceedings against the insurer on the policy to fix its liability at any time after 30 days from the rendition of the judgment against the insured.

We think it clear that at the time this action was commenced and summons served upon the defendants, the judgment debtor had no cause of action against the insurer. The liability of the insurer had not become fixed, either by agreement or judgment. The insured’s liability had not been determined. The parties were negotiating for a settlement and an agreement was not reached until some time thereafter, and no action could accrue against the insurer until 30 days thereafter.

We are of the opinion that neither under the policy nor the statute did the defendant Ohio Farmers Indemnity Company have a chose in action or property of any sort belonging to Marian C. J ohnson at the time this action was commenced.

Sections 9510-3 and 9510-4, General Code, have been considered in several Ohio cases. The one that seems to be almost identical with the case at bar is Fire Assn. of Philadelphia v. State Automobile Mutual Ins. Co., 29 Ohio Law Abs., 135, decided by the Court of Appeals of the Ninth Appellate District. That was a case in which an insurer settled with the insured after receiving notice from an injured third party of a claim against the insured. Thereafter, the third party sued the insurer. The question presented was whether Sections 9510-3 and 9510-4, General Code, gave a cause of action against the insurer in favor of the third party. On this subject the court said at page 138:

“Neither of these sections authorizes a direct action by the injured person or his assignee against the insurance company without first reducing the claim against the assured to judgment. Such judgment was not obtained in this case. We are therefore of the opinion that the judgment rendered by the trial court was correct.”

In that case, the court pointed out that there was no evidence that the policy under consideration contained a provision authorizing a direct action by a third party, and, for that reason, the case was decided solely on the effect of the statute. It is true that the policy in the case at bar does authorize an action by a third party under certain conditions, but those conditions were not complied with, and, therefore, the contract provision is of no assistance to the plaintiff.

It is said in the fourth paragraph of the headnotes in Builders & Manufacturers Mutl. Casualty Co. v. Hummon, 26 F. Supp., 929, affirmed, Builders & Manufacturers Mutl. Casualty Co. v. Preferred Automobile Ins. Co., 118 F. (2d), 118, that:

“The Ohio statute providing that upon recovery of judgment for tort judgment creditor or his successor in interest may file supplemental petition making judgment debtor’s insurer a party defendant and have insurance applied to judgment has no application when plaintiff in tort action has been paid and release has been procured in advance of judgment. Gen. Code Ohio, Section 9510-4.”

See, also, Canen v. Kraft, 41 Ohio App., 120, 180 N. E., 277; In Re Fay Stocking Co., 95 F. (2d), 961; and Stacey v. Fidelity & Casualty Co. of New York, 114 Ohio St., 633, 151 N. E., 718.

In Hartford Accident <& Indemnity Co. v. Randall, 125 Ohio St., 581, 585, 183 N. E., 433, it is said:

“It must be held that by virtue of Section 9510-4, General Code, an injured person has a potential interest and a substantial right in the policy from the very moment of his injury, and although it does not develop into a vested right until a judgment is secured * * (Emphasis added.)

As we construe this language, it means that until the injured person obtains a judgment against the insured, such injured person has a mere possibility of a right against the insurer. It does not vest until he has obtained a judgment.

As already pointed out, at the time this action was instituted the injured person had no cause of action against the insurer. When it settled with her thereafter in accordance with the right given it by the policy that fact did not create a cause of action in favor of the injured person — the plaintiff’s judgment debtor. And, certainly, it did not revert back to the time this action was commenced so as to bring into existence at that time property in Ohio Farmers Indemnity Company control belonging to the judgment debtor. As we view it, the valid provisions and conditions of the policy constituting conditions precedent to its liability, which were never performed by either the insured or the injured person, prevented a cause of action arising or vesting in either. The Ohio Farmers Indemnity Company performed its contract with the insured in exact accordance with its terms. It committed no breach either against the insured or the injured person.

In 14 American Jurisprudence, 681, Section 3, the identical aim of garnishment process and creditors’ bills is pointed out, and it is there stated:

“In respect of debts due from third persons, it is said that the process of garnishment and a creditor’s bill, are, in effect, instituted for the same purpose— namely, to reach money in the hands of a third party, due and owing from a judgment debtor to a judgment creditor. ’ ’

In 38 Corpus Juris Secundum, 227, Section 26, the test to determine garnishability is stated as follows:

“The most comprehensive test of liability to garnishee process is whether or not the person sought to be charged could have been sued by the defendant.”

For these reasons, the judgment is reversed and final judgment directed for the defendants.

Judgment reversed.

Ross anil Hiledbrant, JJ., concur.


author:
      Per Curiam.
     Ross, J.

text:
    The State, ex rel. Wiethe, Appellant, v. Board of Elections of Hamilton County et al., Appellees. (Two cases.)
    (Nos. 7878 and 7879
    Decided March 29, 1954.)

      Mr. Timothy 8. Hogan, for appellant.

      Mr. C. Watson Hover, prosecuting attorney, Mr. George S. Heitzler and Mr. Carl B. Rubm, for appellees.
   Per Curiam.

The first of these actions seeks a writ of mandamus and the second seeks a mandatory injunction to compel the Board of Elections of Hamilton County and its members to place the name of the relator on the ballot as a candidate for member of the central committee of the Democratic Party at the primary election to be held on May 4, 1954.

The Common Pleas Court found on the issues raised in favor of the respondents, and entered judgments in their favor. These appeals on questions of law are from those judgments.

While disavowing any purpose to charge actual or moral fraud, the issue of technical, legal, or constructive fraud was raised in the trial court and was argued here. We are of the opinion that the record contains no evidence of fraud of any kind.

As we view the record, it presents the sole issue of whether the respondents failed in the performance of an act which the law specially enjoined upon them, resulting from the office of the Board of Elections of Hamilton County, Ohio.

Relator’s counsel has furnished the court with a copy of the opinion of Judge Weber, which he handed down in deciding the mandamus action. While disagreeing with the conclusion reached, relator’s counsel commended it as an “ excellently considered opinion. ’ ’ We commend counsel’s frankness and concur in his appraisal.

We are content to affirm these judgments on the reasoning and authorities contained in Judge Weber’s opinion.

There is no doubt that the board of elections would be derelict in its duty if it placed the names of all declarants on the ballot without passing upon their sufficiency as a matter of law. The board must, under the statute, determine that the declaration is sufficient before placing the declarant’s name on the ballot.

Of course, one of the essentials of a valid declaration is a correct, unambiguous description of the office sought. A comparison of the form furnished by the Secretary of State with the statute, discloses that it follows closely the language of the statute (Section 3513.07, Revised Code), particularly where it approaches the blank space for the insertion necessary "o complete the title to the office. Precise instructions were found in the footnote as to the title to be inserted. An examination of the declaration of the relator discloses that it is either a declaration for a nonexisting office or an ambiguous declaration for one or another of two offices, or both. This uncertainty relates to the unit of representation which is of the essence of the description. Under such circumstances, we believe it cannot be said that this declaration is free of defects or that it substantially complies with the law. And, for the same reason, it cannot be said that the respondents abused their discretion or failed in the performance of a duty specially enjoined by law in rejecting the declaration.

For these reasons, the judgments are affirmed.

Judgments affirmed.

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

(No. 7878 — Decided April 8, 1954.)

On Rehearing.

Ross, J.

This court announced a decision, affirming the judgment of the trial court prior to the announcement of the case of State, ex rel. Halpin, v. Hamilton County Board of Elections, 161 Ohio St., 281, 118 N. E. (2d), 840.

The relator requested the court, in view of the decision in the Halpm case, to permit reargument of the appeal from the Court of Common Pleas on questions of law, which request was granted, and the case has been reargued in the light of the Hatpin case.

The opinion in the Hatpin case is what is known as a “ Per Curiam.” There is no syllabus defining the law of the decision. The law pronounced is found in the divided opinion of the Supreme Court.

What is the function of an appellate court in the consideration of an appeal on questions of law from a trial court which has refused to issue a writ of mandamus, where the facts are not in conflict?

Obviously, thé appellate court’s function is to determine whether the trial court, in its judgment entry, has pronounced an erroneous principle of law or erroneously applied a valid principle of law to admitted facts, at least, such are the limitations of this appeal. In the judgment entry of the trial court, it is stated: ‘ ‘ This matter came on to be heard on the petition of the relator praying for a writ of mandamus and the court being fully advised in the matter by the pleadings, evidence, arguments and briefs, does find the allegations in relator’s petition to be unsupported by the evidence and the law and does therefore deny the prayer for a writ of mandamus.

“To all of which relator excepts.”

In effect, the trial court found that the relator had failed to prove a cause of action in mandamus.

At the outset, the relator alleges in his petition for mandamus that he, “desiring to be a candidate for member of the Democratic County Central Committee of Hamilton County, Ohio, duly executed a declaration of candidacy as a candidate for the office of member of the county central committee of the Hamilton County Democratic Party from the 7th ward in the city of Cincinnati.”

He attached to his petition for mandamus copies of his declaration and the petition for his candidacy. The declaration shows he desires “to be a candidate of the Democratic Party for election to the office of member of the county central committee from precinct S, 7th ward, city of Cincinnati,” and he requests that his name “be printed upon the official primary election ballot of the said Democratic Party as a candidate for such election as provided by law. ’ ’ (Emphasis added.)

Some of the signers of his petition were from other precincts of ward 7 than precinct S.

He further states in his petition for mandamus that the board of elections rejected his declaration and petition, and notified him he had filed for a nonexistent office; that the central committee of the Democratic Party changed committee representation from precinct to ward; that he is a qualified elector of such ward and desires to be a candidate for the “sole office of member of the county central committee”; that “he duly and fully and substantially filed a declaration of candidacy and a petition for candidate with respondent board in the form substantially required by the Ohio statutes in such cases made and provided”; that the signers of his petition, the notary and the circulator thereof all understood he was seeking to be a candidate from the 7th ward; and that it was obvious from his declaration that such was the case.

Relator alleges further “that the action of the board is clearly contrary to law and is arbitrary, capricious and a disregard of the requirements of the Ohio law relative to the substantial correctness of declarations and petitions.” (Emphasis added.)

If the evidence produced at the trial shows that the action of the board was contrary to law, arbitrary, or capricious, or that there was no substantial evidence to sustain its decision, the relator has brought himself within the area in which courts will issue their writs of mandamus to boards vested with discretionary powers by the General Assembly in matters purely political. This is not an election contest, but a proceeding invoking the extraordinary powers of mandamus.

The trial court found that the evidence produced failed to sustain such a status. Was the finding contrary to the weight of the evidence, or was such undisputed evidence so conclusive in the inferences to be drawn therefrom as to require this court to render the judgment which the trial court should have rendered, finding that the board of elections had acted contrary to law, or in a capricious or arbitrary manner, or that there was no substantial evidence sustaining the decision of the board.

Section 3501.11, Revised Code, specifies that the board shall, among other duties, “(K) Review, examine, and certify the sufficiency and validity of petitions and nomination papers.” In the exercise of such duties they are performing a purely political function of government.

The judicial branch of the government is given power to set aside the final determination of boards of elections only where it is made to appear that the board has abused the discretion reposed in it by the Legislature, or has acted in an arbitrary, capricious, or unreasonable manner, or that there was no substantial evidence presented to it justifying its decision.

In State, ex rel. Burgstaller, v. Franklin County Board of Elections, 149 Ohio St., 193, 197, 78 N. E. (2d), 352, it is stated:

“There is no claim of fraud or corruption in this case, and the only possible basis for judicial intervention would be that the board flagrantly misinterpreted the statute, or clearly disregarded an applicable legal provision.”

In State, ex rel. Lemert, v. Board of Elections of Muskingum. County, 149 Ohio St., 211, 78 N. E. (2d), 368, it is stated in the opinion on page 215:

“Under Section 4785-70, General Code, the determination of a board of elections is final. Mandamus will not lie to control the exercise of powers by a board of elections in the absence of allegations of fraud, collusion or abuse of discretion.”

The form of declaration and petition is required to be “substantially” as set out in Section 3513.07, Revised Code. It must be admitted that as far as the form is concerned, the declaration complied with the statutory “form,” and that the “form” was “substantially” the same as that required by statute. In view of some stress laid on the use of the word, ‘ ‘ from, ’ ’ by relator, it should be noted that in Section 3517.03, Revised Code, it is stated:

“The controlling committees of each political party or organization shall be a state central committee consisting of two members, one a man and one a woman, from each congressional district in the state; a county central committee consisting of one member from each election precinct in the county, or of one member from each ward in each city and from each township in the county, as the outgoing committee determines; and such district, city, township, or other committees as the rules of the party provide.” (Emphasis added.)
It will be noted also that in the form furnished by the board of elections an asterisk denotes a footnote, showing that for ward, the declarant should state from “......ward.”

Nowhere in the statutes is it stated that a prospective candidate may file for an office “substantially” designated in a form.

It is to be remembered that, as alleged in the petition for mandamus, the precinct representation has been abandoned in favor of ward representation. Was the board required to presume that the candidate was aware oi such change and was filing for a ward instead of a precinct? Suppose there had been more than one of such declarations for precinct representation. Is the board to disregard the expressed desire of the declarant? And is the court to substitute a conclusion which it might have reached for one which the board has discretion to make ? May it be said that under the circumstances here in evidence the board acted contrary to law? If so, what specific requirement of the law? Was the board capricious or arbitrary in not writing into the declaration what the candidate may or. may not have intended to write ? Can it be said the undisputed fact that the declarant desired to represent only a precinct furnished no substantial evidence upon which the board could decide that such was his intention? Was it the duty of the board to delete the words, “precinct S,” and thus make a new declaration for him, i. e., to change a declaration for an office that did not exist to one that did?

There, is evidence and it is alleged that all those involved knew the candidate was filing for the ward and not a precinct thereof. Then why did the candidate who had the greatest interest involved not so state?

This is a political matter over which boards of elections are given final jurisdiction, except to the extent hereinbefore noted.

In the Halpin case, supra, the Supreme Court announced no general rule of law applicable to all situations, and it may be doubted if it could do so. That opinion applied to a specific state of facts, which are essentially different from those presented to the trial court.

This court is bound by the decisions of the Supreme Court, but only to the extent to which those decisions reach.

The obligation rests upon the candidate to state in his decaration of candidacy specifically the office he desires to occupy, and for which his name is to be placed on the ballot.

No duty is imposed upon a board of elections, nor is there a right given such board, to place upon the ballot the name of a candidate for an office which he has not designated, especially where no such office is presented on the ballot.

It is our conclusion that the trial court committed no error prejudicial to relator in refusing under the evidence submitted to employ the extraordinary writ of mandamus to find that the board of elections had acted contrary to law or in an arbitrary or capricious manner in its exercise of a purely political function involving a sound discretion, conferred upon ;t by the statutes, or that there was no substantial evidence upon which the board could refuse to put the declarant’s name on the ballot.

Judgment accordingly.

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


author: Wiseman, P. J.

text:
    Derrick, d. b. a. Mecklenburg’s Garden, Appellee, v. Board of Liquor Control et al., Appellants.

      (No. 5078
    Decided September 24, 1954.)

      Mr. C. G. Yarwood, for appellee.

      Mr. C. William O’Neill, attorney general, Mr. Robert Krupansky and Mr. Kiehner Johnson, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County reversing the order of the Board of Liquor Control, which suspended the permit of appellee .for violation of Regulation No. 53.

The charge was made that appellee kept, or allowed to be kept, on the permit premises race horse slips and baseball slips used in gambling. The evidence presented to the board consisted of the testimony of several police officers, exhibits in the form of slips of paper, one piece of newspaper, a sporting newspaper, and a notebook. These exhibits are proof of bets being-placed on horse races and baseball games. The officers testified that the bartender and a waiter, who were employed by appellee and who possessed the exhibits on the premises, admitted they had taken bets from patrons during their'employment on the premises. The two employees did not testify at the hearing before the board.

Appellee questions the competency of the testimony of the police officers on the ground that such testimony was hearsay and should not be considered. The board concedes such testimony to be hearsay, but contends that it had a right to consider this evidence. Counsel for the board point out that the testimony of the police officers was received without objection. If such evidence is excluded, there is not sufficient evidence in the case to warrant a finding of a violation of Regulation No. 53. This was the position taken by the Common Pleas Court. If such testimony is considered, there is reliable, probative and substantial evidence to support the order of the board.

Failure to object seasonably to otherwise inadmissible evidence constitutes a waiver, and unless an objection is interposed, the question of the admissibility of the evidence cannot be presented on review. State v. Petro, 148 Ohio St., 473, 76 N. E. (2d), 355; Ruch v. State, 111 Ohio St., 580, 146 N. E., 67; 2 Ohio Jurisprudence (pt. 1), 328, Section 162; 3 American Jurisprudence, 40, Section 260.

Hearsay evidence, though incompetent if objected to, nevertheless may be probative and relevant to the issue. 20 American Jurisprudence, 1036, Section 1185. The only question is how much weight should be given thereto. State v. Petro, supra, paragraph eight of the syllabus..

Appellee contends that she is not bound by the admissions of her two employees, the bartender and the waiter; that such admissions were outside the scope of their employment. This is not the proper test to be applied here. Under Regulation No. 53, the permit holder is held responsible for misconduct of her employees on the permit premises. The case of Barn Cafe & Restaurant, Inc., v. Board of Liquor Control, 63 Ohio Law Abs., 351, 109 N. E. (2d), 332, is distinguishable from the case at bar on the facts. In Wallace v. Board of Liquor Control, 64 Ohio Law Abs., 477, 112 N. E. (2d), 827, this court, on page 479, said:

“Asa defense to these charges the proprietor urged that he did not know what was going on and stated that he had dismissed the employees who permitted the conditions to obtain. Manifestly, the permittee cannot evade responsibility for misconduct and failure to observe rules of the Board and the demands of decency and propriety in the operation of a night club where liquor is sold.”

We are of the opinion that the board had a right to consider the testimony of the police officers; that such testimony was relevant and probative; that the board had a right to determine how much weight should be given to such evidence; and that the judgment of the board was supported by reliable, probative and substantial evidence and was in accordance with law.

Both in his brief and in oral argument counsel for appellee claimed that the record of the evidence is incomplete and incorrect. We are required to consider the record as it is presented to us. This court cannot go beyond the record in an attempt to supply deficiencies in it.

In reversing the judgment of the board, the Common Pleas Court committed reversible error. The judgment of the Common Pleas Court is reversed, and the order of the board affirmed. The cause is remanded for further proceedings according to law.

Judgment reversed.

Miller and IIornbeck, JJ., concur.