author: Pollock, J.

text:
    NO APPEAL FROM ORDER APPOINTING ADMINISTRATOR.
    Court of Appeals for Monroe County.
    Luburg et al v. Luberg.

    Decided, April 28, 1920.

      Administrator — Common Pleas Court Without Jurisdiction on Appeal from Appointment of by Probate Court.

    The General Code of this state does not give a right of appeal to the common pleas court from an order'of the probate court appointing an administrator.

      B. F. Sears, for plaintiff in error.

      Moore, Devaul & Moore, for defendant.

      Motion to direct the Court of Appeals to certify its record in this ease overruled by the Supreme Court, June 28, 1920.

   Pollock, J.

This is an action in errqr seeking to reverse the judgment of the court of common pleas of Monroe county in the matter of the appointment of an administrator of the estate of Wesley Luburg.

The only question before this court is whether the common pleas court had jurisdiction on appeal over the subject-matter of this action.

Some time in May, 1919, the plaintiffs in error, who are heirs of Wesley Luburg, deceased, late a resident of Monroe county, filed an application in the probate court asking ‘for the appointment of an administrator of the estate of said Wesley Luburg. Citation was had upon the remaining heirs of the deceased, and, on hearing in the probate court, Susan Hendershot, a daughter, and one of the heirs of Wesley Luburg, was appointed administratrix of his estate.

After the judgment of the probate court, the defendant in error, John C. Luburg, gave notice of appeal, filed a bond, and caused the matter resulting in the appointment of an administratrix to be appealed from the probate court "to the common pleas court.

The only heirs or parties to the proceeding in probate court who appeared in the common pleas court in the matter thus appealed were the plaintiffs in error, who filed a motion ashing, among other grounds, that the appeal be dismissed for the reason that the common pleas court had no jurisdiction over the action on appeal.

The motion was heard in the court of common pleas, and overruled.

Afterwards the matter came on to be heard in that court, resulting in a judgment refusing to appoint an administrator of this estate.

In the argument something has been said in regard to the regularity of the proceedings in the probate court.

The question of the regularity or irregularity of the proceedings in the probate court is not now before this court.

The administratrix, and some of the heirs of this estate who were cited to appear in probate court, did not appear in the common pleas court, and were not made parties to this action in error, and it is urged that this being true this court does not have all the parties before it necessary to a hearing on the petition in error and that for this reason this action should be dismissed.

These parties were not required'to appear in the court of common pleas if they did not wish to. No pleadings were filed in that court, and none are required. We have before us in this proceeding only the parties who appeared and took part in the proceedings in the common pleas court. If there were other issues than that of jurisdiction, a serious question might arise whether this court did have proper parties before it, but if the' common pleas court had no jurisdiction of the subject-matter its judgment, is void, and whether all the parties who were parties in the probate court are now before the court or not is immaterial, -as the judgment rendered by the common pleas court would have no legal effect and does not bind anyone. Freeman, Judgments (4 ed.), See. 17; 1 Black, Judgments (2 ed.), Sec. 218, and 7 Ruling Case Law, p. 1042, See. 75.

Any party interested in the proceedings in tbe probate court to appoint an administrator of the esate of Wesley Luburg had a right to appear in the court of common plea's and challenge the jurisdiction of that court over the subject-matter, and, if defeated, to prosecute error to this court.

The claim is made by the defendant in error that Sec. 10859 G. C. gives the common pleas court jurisdiction on appeal over the appointment of an administrator. This section reads as follows:

“From any order, judgment, or decree of the probate court, an appeal may be taken to the court of common pleas, by any person against whom it is made, or who is affected thereby, in the manner provided in other cases. Bills of exceptions may be taken and allowed upon any decision of the probate, common pleas or circuit court, in such proceedings as in other cases. ’ ’

The right of appeal exists only by virtue óf the statute. In order to give the appellate court jurisdiction, the statutory provision must be strictly followed. Browne v. Wallace, 66 Ohio St. 57.

Viewed alone the terms of the section of the General Code just quoted would seem to' give the right of appeal to the common pleas court to any person against whom any order, judgment or decree of the probate court had been entered.

A court would hesitate to give a construction to this statute that would allow a dissatisfied litigant to appeal from any order or judgment that the probate court might enter. So that a court should look farther than the mere language of the statute before placing such a broad construction upon this section.

This section was a part of Sec. 9 of act 54 O. L. 202, providing for a speedy collection by an heir of his interest in an estate after an order of distribution had been, entered. At the time of its enactment the section was a part of that act of the Legislature, and the right to appeal which if gave only included the actions provided for in that act. First came the revision which resulted in the Revised Statutes, and since then we have had the further revision now known as the General Code.

The act above referred to now appears in the General Court beginning with See. 10848. and ending with See. 10860. While that act has been changed in some minor particulars by revisions and amendments, yet the purpose and object of the act remain the same as in the original enactment.

This section should be construed in connection with the act of which it forms a part, and be limited to its original intention, unless by the revision, or the amendments to it, it reasonably appears that the Legislature intended to give it a wider application. It does not appear from any change in the form of the act, or of this section, that the Legislature intended to extend the right to appeal under this section so as to include any orders or judgments of the probate court not embraced in the original act.

After the revision embodied in the Revised Statutes, this section became See. 6203, and the Supreme Court, in Ebersole v Schiller. 50 Ohio St., 701, construed it as follows:

“Section 6203 Revised Statutes, must be construed in connection with the act of April 17, 1857 (S. & G., 619), of which act it formed a part before the revision of the statutes; and, when so construed, it gives no right of appeal to the court of common pleas, from an order of the probate court refusing to remove an administrator.”

The question of the effect upon a statute which has undergone revision was before the supreme court in the case of State v. Shelby Co. (Comrs.) 36 Ohio St., 326, the court holding that unless the language of the new act plainly requires a change of construction to conform to the manifest intention of the legislature, the same construction will prevail as before revision.

This rule was not modified by the supreme court in the ease of Collins v. Millen, 57 Ohio St., 289 [48 N. E. 1097]. That case only holds that where, in the general revision of the statutes, a clause i§ added to a section thereof, the plain and ordinary effect of which is to qualify the former operations of the section, such effect should not be denied on the ground that it was added in the course of a general revision of the statutes.' This,' in no way, however, modifies the former rule that unless such a clause appears, the original construction should be placed upon the section.

Our attention has been called to the case of Union Savings Bank & Trust Co. v. Western Union Tel. Co., 79 Ohio St., 89, [86 N. E. 478; 128 Am. St. 675; 30 O. C. C. 380], in which it is claimed' that Davis, judge, in the opinion holds that the right to appeal to the common pleas court does exist from an order appointing an administrator. The judge, at page 100 of that casé, uses the following language:

“The defendant, if it had such an interest in the estate as . would give it the legal standing to do so, might have attacked the appointment in the probate court, or by appeal or error.”

In order to determine the effect that should be given to this remark found in the opinion we must look to the question then before the court; The court had before it the question of whether or not the appointment of an administrator by the probate court, where it was claimed, that the administrator appointed had no legal right to act as such administrator, could be attacked in a collateral proceeding. After holding that because the probate court had jurisdiction over the appointment of an administrator of an estate, and that the appointment regularly made by the probate court could not be collaterally attacked, the court used the language above quoted.

We do not think the remarks found in the opinion are determinative of the question. The supreme court did not have the question of the right of- appeal before it at that time, and the remark was wholly obiter, and was made, no doubt, by the learned jurist without having fully considered at that time the statutory provisions giving a right of an appeal from the judgments and orders of the probate court to the common pleas court.

The only other provision of the statutes, authorizing an appeal from the probate court to the common pleas court, is See. 11206 G. C. This section fails to provide for an appeal from an order of the probate court appointing an administrator of an estate.

We think that the common pleas court was in error in overruling the motion to the jurisdiction of that court. The judgment of the common pleas court is reversed.

Metcalfe and Farr. JJ.; concur.


source: Caselaw Access Project

author: Washburn, J.

license: Public Domain

text:
    EFFECT OF FAILURE TO SPECIFY QUALITY OF GAS TO BE FURNISHED UNDER A MUNICIPAL FRANCHISE.
    Court of Appeals for Summit County.
    Stuver v. East Ohio Gas Co. et al.
    Decided, November 12, 1920.

      Municipal' Corporations — Franchise Ordinance to a Cas Company — Rendered Invalid by Failure to Specify Quality of Gas to be Furnished —Public Utilities Statute Inapplicable.

    1. A franchise ordinance granting to a gas company the right to furnish gas to the inhabitants of a municipality at a certain stipulated price, but which fails to specify or mate any reference to the quality of gas to be furnished, is in contravention of Section 3989, General Code, and invalid and its performance may be enjoined.
    2. The provisions of Section 3989, to the effect that municipalities shall not contract for the furnishing of gas to their inhabitants, unless the agreement shall specify the exact quality of gas 'to be furnished, are not affected or rendered inoperative by the statutes relating to the public utilities commission.

      Musser, Kimber & Huffman, for plaintiff in error.

      Slabaugh,’ Young, Seiberling, Huber & Guinther, for defendants in error.
   Washburn, J.

Heard on error.

On August 16, 1920, the village of Kenmore passed an ordinance granting a franchise to the East Ohio Gas Company, to construct, etc., pipes in -the streets of said village, and supply to the inhabitants of said village manufactured or artificial gas, charging such inhabitants a certain price therefor, said price being agreed to and stipulated in the ordinance. But such ordinance did not specify the quality, of gas to be so furnished, or make any reference thereto.

On October 20, 1920, the plaintiff, having duly requested the city solicitor to bring the action, which he refused to do, brought this action to declare such ordinance invalid, and to enjoin said village and said gas company from undertaking to perform or operate.under, such ordinance.

In the court below a demurrer was sustained to the petition, and, the plaintiff not desiring to further plead, judgment was rendered against him, dismissing his petition. He now prosecutes error proceedings in this court to reverse that judgment.

By Section 4311, G. C., it is made the duty of the city solicitor to bring injunction proceedings in a court of competent jurisdiction to restrain “the execution or performance of any contract made in behalf of the corporation in contravention 'of the laws or ordinance governing it;” and upon his .refusal to perform such duty such suit may be brought by a taxpayer. Section 4314, G. C.

Said franchise ordinance having, been duly accepted by said gas company, there can be no doubt but that it constitutes a contract between the village and said company. Cincinnati v. Public Utilities Commission, 98 Ohio St., 320. The claim of the plaintiff is that such contract was entered into in contravention of a law governing said village, that is, Sec. 3989, G. C.. which provides that the council of such village “shall not agree by ordinance, contract, or otherwise, with any person or persons for the construction or extension.of gas works for manufacturing or supplying the.corporation or its inhabitants with gas, * * * which does not specify the exact quality .of the gas to be furnished, and reserve to the council the right to enforce and exact compliance with such specification, under such rules as the council may prescribe.5 ’

It is conceded that this statute, in the respect mentioned, was wholly and totally ignored; it would seem, therefore, that this action, being specifically authorized, and having been promptly brought, the plaintiff is entitled to the relief sought, unless there are other and later statutes which-modify or change or render inoperative the plain provisions of Section 3989, and it is the claim of the defendants that such is the case.

It is admitted that Section 3989 is not specifically amended or changed, nor referred to, by any other or later statutes, but it is claimed that insomuch as “merchantable gas:’ is defined by other statutes (Sec. 9331, G. C.), and power given the Public Utilities Commission of Ohio to ascertain and fix adequate and serviceable standards for the measurement of quality, pressure, initial voltage or other condition pertaining to the supply or quantity of the product or service rendered by any public utility (Sec. 614-36, G. C.), that therefore such statutes enter into and become a part of the Kenmore contract, and the obligation of the gas company is to be measured and performance regulated by the terms and rules they prescribe.

We have examined the statutes relating to the public utilities commission, and the cases in the supreme court construing the same, and are of the opinion that such statutes do not take away from municipalities the right to enter into contracts with' public utilities, relative to the furnishing by the latter of gas; and other commodities to their inhabitants, and that, while the public utilities commission is granted certain powers over public utility companies and the service rendered by them, still, the commission is a board of special and limited jurisdiction and has no power to exercise any jurisdiction beyond that expressly conferred by the statute, Cincinnati v. Public Utilities Commission, 96 Ohio St., 270, that it has no power to confer franchises or make contracts which shall be effective between a municipality and a public utility, or between other parties, Oak Harbor v. Public Utilities Commission, 99 Ohio St., 275, and that, where contracts are entered into between municipalities and public utility companies, in accordance with the statutes which confer authority to so contract, said contracts are binding on both parties thereto, subject in certain contingencies, to the right of one per cent, of the qualified electors to appeal within sixty days to the commission as provided in Sec. 614-44, G. C. Ohio River Power Co. v. Steubenville, 99 Ohio St., 421. The appeal provided for in Section 614-44, General Code, is confined to the subject of price, and is otherwise limited in its application. Cincinnati v. Public Utilities Commission, supra.

Moreover, municipalities are expressly authorized to enter into contracts of this character by Art. 18, Sec. 4, of the Constitution, as amended in 1912; the right to contract for the product or service of a public utility necessarily includes the right and authority to agree upon the quality of the commodity to be furnished by such utility, and if the statutes in reference to the utilities commission should be construed so as to take that right away from municipalities, and vest the entire control of the matter in the utilities commission, such statutes would be clearly unconstitutional. The Supreme Court, in a recent decision, not cited‘to us, reiterates its former holding that where a gas company enters into a' contract with a municipality, and agrees to furnish a service to the inhabitants of the municipality, such contract is binding upon the parties, and the utilities commission is not vested with authority to relieve the gas company of the obligations assumed by it in such contract; and rer iterates its former holdings that the powers of the public utilities commission are conferred by statute and it possesses no authority other than that thus vested in it. Lima v. Public Utilities Commission, 100 Ohio St., 416.

We do not find that the statutes creating the public utilities commission specifically or by necessary implication repeal Section 3989. Therefore a contract entered into between a municipality and a utilities company in violation of the plain provisions of Section 3989 is illegal, and, upon timely objection thereto, should be so declared by the court. For the protection, of the public, that statute provides that the municipality shall not agree, by ordinance, contract or otherwise, for the manufacturing or supplying of gas to the inhabitants of the municipality, unless such agreement shall “specify the ^xact quality of the gas to be furnished.” Notwithstanding the fact that the •utilities commission is granted certain supervision and power over the service to be rendered under such contract, still the inhabitants have a right, in the first instance, to have the contract specify the quality of gas to be furnished, so that their rights in that particular may be fixed by agreement and they may be in a position to claim the protection of their rights in any future proceedings before the utilities commission.

For the reasons indicated, we are of the opinion that the court below committed error in sustaining the demurrer and dismissing the petition in this ease, and for that reason, the judgment^ reversed.

Dunlap and Vickery, JJ., concur.


text:
    LIABILITY OF HUSBAND FOR SUPPORT OF WIFE WHO HAS ABANDONED THEIR HOME.
    Hardy v. Smith.
    Judge Patterson of Fifth District sitting in place of Judge Dunlap.
    Court of Appeals for Cuyahoga County.
    Decided, October 29, 1920.

      Husband and Wife — Husband not Liable to Father-in-law for Support of his Wife — Where she Abandoned without Sufficient Cause the Home Provided by the Husband.

    1. A wife is not justified in abandoning the home provided by her husband so as to render him liable for support furnished her by her father, because of the presence of others in such home whom it was agreed before marriage should be a part of the home.
    2. Under such circumstances the father, in order to recover for support furnished the wife, must establish good faith on his part and prove by convincing evidence such misconduct on the part of the husband as would justify the wife in abandoning his home and neglect on his part to make adequate provision for support of his wife.

      W. J. Mahon, for plaintiff in error.

      E. J. Klenicka, for defendant in error.
   Washburn, J.

Heard on error.

In this action in the municipal court, John A. Smith, the father of Mrs. E. B. Hardy, recovered a judgment against his son-in-law, E. B. Hardy, for $240, for twenty-four weeks’ board and lodging, furnished by said father to his daughter, Mrs. Hardy, and her child.

The record discloses that Mr. Hardy and his sister were raised by their aunt, and that before his marriage Mr. Hardy explained to the prospective Mrs. Hardy that he felt under obligations to maintain a home for his sister, that he could not maintain a separate home, and that when they were married Mrs. Hardy fully understood and agreed that the aunt and sister should remain as part of his home.

As might be expected, this arrangement did not prove entirely satisfactory, and, because of the presence in the home of the aunt and sister and the consequent friction caused thereby, rather than because of any serious misconduct of the husband, Mrs. Hardy abandoned the home and went to live with her father.

Later, by arrangement between the husband and wife, the husband paid the wife $4.00 per week, for a time,- which was later increased to $6.00 per week, and she made no further demand upon him; and he was willing, and she knew he was willing, to support her and their child in the home he provided and maintained.

The father of Mrs. Hardy made no investigation to ascertain whether his daughter was justified in abandoning her home, and did not make known to the husband the fact that, he expected to charge him for the board and lodging of his wife until twenty of the twenty-four weeks had elapsed.

The statutes of Ohio, bearing on the questions here involved, are as follows:

“Section 8004. If the wife abandons the husband, he is not liable for her support until she offers to return, unless .she was justified by his misconduct, in abandoning him. ’ ’
“Section 7996. The husband is the head of the family. He may choose any reasonable place or mode of living and the wife must conform thereto.”
“Section 8003. If the husband neglects to. .make adequate provision for the support of his wife, any other person in good faith, may supply her with 'necessaries for her support, and recover the reasonable value thereof from the husband. ’ ’

Under all the circumstances disclosed by the record, we have reached the conclusion that the trial court was manifestly in error in finding that the misconduct of the husband justified the wife-in abandoning the home provided by him. so as to make him responsible for the support furnished her by her father.

Where the husband maintains a home for the wife, vdiich is ás good as his means will permit, and the wife objects to the presence of others therein, whom, before marriage, she understood and agreed should be a part of such home, and she abandons such home and returns to her father, and her father seeks to. hold the husband for her support, the father should be held to a stricter proof than a tradesman or other parties not related to the wdfe, as to the necessity of harboring and furnishing her with' necessaries. Under such circumstances public policy demands that the good faith of the father be established, and that he produce convincing proof of the misconduct of the husband, which justified the abandonment of the-home, and neglect on the part of the husband to make adequate provision for the support of his wife.

This record does not furnish such proof, and the judgment .of the municipal court is therefore reversed, as being manifestly against the weight of the evidence.

Patterson and Vickery, JJ., concur.


author: Hughes, J., Crow and Warden, JJ.,

text:
    TESTAMENTARY PHRASE CREATING A FEE TAIL.
    Court of Appeals for Logan County.
    David U. Edwards et al, v. Vernal Upton Edwards, by John E. West, Guardin al Litem.
    Decided, March 18, 1921.

      Wills — Effect of Use of the Words to “his heirs of nearest Mn.” — What Constitutes a Sufficient Devise in Fee Tail.

    The phrase “to our son David and his heirs of nearest kin,” used in a will with nothing else manifesting a different intention, devises an estate in fee tail in the son David.

      Howenstine & Huston, for plaintiffs.

      West West, for defendant.

   Hughes, J., Crow and Warden, JJ.,

concurring.

AVe are called upon to construe the item in the will of James H. Edwards, deceased, which reads a.s-follows:

“In the name of the Benevolent Father of all. I, James H. Edwards, of county of Logan and State of Ohio, being of lawful age and of sound mind hereby give and bequeath to my beloved wife, Elizabeth A. Edwards, all of my property both personal and real of which I may be seized at my death, to have and to hold to her only proper use during her natural life and whatever may be left from her support and care during her life, last illness and funeral expenses shall go to our sond David U. Edwards and his heirs of nearest kin.5 ’

The will in question was executed during the month of June, 1901, at which time his wife Elizabeth was livng, as was his son David, who at the time, was married and had one child. The wife Elizabeth died in 1906. The testator died in November. 1918, and left surviving him as his only heir, his son David who at that time had three children.

There is nothing in the will nor in the agreed statement of facts to aid the court in interpreting the meaning of the expression used in this item, and we are therefore called upon to construe it as it stands, without any other language or fact given to indicate the intention of the testator.

There are some expressions that have received judicial interpretation and have a fixed meaning under the law of wills.

There can be no doubt, if a testator uses the expression “I give to my son and his heirs,” that he devises a fee simply estate to his son.

■It is also determined by our Supreme Court in 100 O. S., page 447, that when a testator uses the expression “to my nearest kin,” he means thereby that the estate shall pass to those who would inherit under the statute of descent and distribution and in the order and proportion therein provided, had the testator died intestate.

But we find something more in this will. The testator says that his property shall go to his son arid his heirs of nearest kin, and has used more than what is commonly known to pass an estate in fee simple. He has given a description to the heirs of his son David to whom his property shall pass upon the death of his son. If he had said “To David and his heirs,” or if he had said “David and his nearest kin.” we would entertain little doubt.but that the intention of the testator was to devise a fee simple in his son.

There is a well known axiom that each word used must be given a meaning, if possible.

We are quite satisfied that by the use of the expression “To David and his heirs,” he has passed-an estate in fee, under the rule laid down in Second Blackstone, page 115. But when he has added to or qualified the particular heirs that are to sueeeeed, he has placed an entailment upon the fee, and the first devisee' becomes a holder in fee. tail.

It is said in 10 Ruling Case Law, Section 14, under the title “Estates,” “That any expression in a will denoting an intention to give the devisee an estate of inheritance descendable to his, or some of his, lineal, but not collateral, heirs, have always been regarded as a sufficient devise of a fee tail.”

While the use of the words “nearest” or “next of kin” used alone no doubt means those who would inherit had he died intestate. or in other words, those who would have been his heairs, yet when they are added to the expression “To David and his heirs,” it is an expression of limitation establishing a different succession than the law would make under the sole expression “his heirs.”

As was said by Justice Read in the 15 Ohio, at page 563:

“The testator may use the word ‘heir,’ and take it without its usual legal sense, if he employ words respecting it to show that he did not use it in its ordinary legal sense, or if the plain, intention manifested in the will shows that it ivas not employed in its usual legal sense. A mere presumed intention will not control its legal signification and operation: but with words of explanation. showing the manifest intent of the testator, it can be made a word of purchase. If, where the word ‘heir’ is used, there be superadcled words of limitation, establishing a new succession, the first donee or devisee would take but a life estate. The expressed intent then, of the testator, will affix the meaning to the word ‘heir’ — it is said a mere implication will not.”

We are not unmindful of the rule in Ohio, as it is elsewhere generally pronounced, that courts do not lean to or favor entailed estates,' yet it is always the duty of the court to give that interpretation to the will which the testator has made manifest as his intention.

We have before us the record in case number 13912. reported in the 90 O. S , page 467, in which the court was called upon to interpret the following item of a will:

“Sixth. This last excepted parcel I give and devise to Ada May Sheffield and to the first child born to her in lawful wedlock, in fee simple on and after January 1,1902 ”

Our Supreme Court in this ease gave interpretation to this item to the effect that it created a fee tail estate in Ada May Sheffield, showing clearly a response to this duty aforesaid.

Being of the opinion as here expressed, that the words “of nearest bin,” added to the expression “.to his heirs,” is a word limiting the heirs of succession, we hold that the will in question devised to David U. Edwards, an estate in fee tail.


author: Houck, J.

text:
    UNAUTHORIZED LEASE MADE BY EXECUTORS.
    Court of Appeals for Muskingum County.
    J. L. Swingle et al v. H. Ellsworth Staker and Charles E. Russell, as Executors of the Estate of John Staker, Deceased.
    Decided, April 15, 1920.

      Estates of Decedents — Executors Without Authority to Mortgage, Lease, Bent, or in any way Encumber Beal Estate Belonging to the Decedent, Unless.

    A contract or lease covering real estate, executed by an executor not authorized so to do by Ihe will of bis decedent, is not enforcible.

      C. T. Marshall and II. E. Buker, for plaintiffs.

      G. L. Post, G. F. Kibble and E. F. O’Neal, for defendants.
   Houck, J.

This case is here on appeal from the common pleas court of Muskingum county, Ohio, and is submitted to this court on demurrer to the petition and the two supplements thereto.

The question to be determined by this court is: Do the petition and the two supplements thereto state a cause of action ¥

The allegations and facts stated in said pleadings are well known to counsel and for that reason will not be set out in detail in this opinion.

It is practically conceded by counsel that, if the paper writing upon which the petition is based is a lease, then the executors were and are without authority in law to make and enter into such contract contemplated thereby, leasing the real estate of their decedent.

This brings us directly to the question: What is the paper writing now before us and what is its force and effect in law, as applied to the parties hereto ?

A careful examination of all the authorities cited by counsel, as well as an examination of some not cited, clearly convince us that in Ohio, the paper writing in question is a lease with all the elements incident thereto.

We think the rule is so well known that it needs no comment here, that an executor has no right to mortgage, lease, rent, or in any way encumber the real estate of his decedent, unless such executor is so authorized and empowered in the will of his decedent. ! j

If the paper writing now before us for construction be properly executed, it in law would be a lease, and even then, no authority having been given the executors of the will of John Staker, deceased, to make such contract or execute a lease on the real estate of which he died seized, it follows that said executors were and are without'power or authority in the premises.

We do not think it necessary to discuss any of the other questions raised by counsel in the instant case, because the one already passed upon and determined by this court is decisive of the case so far as the demurrer is concerned.

Thus it follows, and we are unanimous in our conclusion, that the demurrer is well taken and must be sustained.

Demurrer sustained.

Shields, J., and Patterson, J., concur.


author: Middleton, J.

text:
    COMPENTENCY AND WEIGHT OF TESTIMONY OFFERED IN A WILL CASE.
    Court of Appeals for Scioto County.
    Mary A. Burns et al v. Mary Crowe.

    Decided, June 3, 1920.

      Wills — Niemes Case Without Effect — No Change in the Ohio Rule — • Malting Incompetent the Opinion of a Witness as to the Capacity of a Decedent to Malte a Will — Notwithstanding the Qualifications of the Witness to Express such an Opinion.

    1. The opinion of the Supreme Court in the ease of Niemes v. Niemes in no way modifies or relaxes the rule in Ohio as to the competency of lay testimony in respect to the capacity of a decedent to make the will which he did make, 'but is confined to criticism of the reasons for establishing such a rule, and error can not be predicated on the refusal of a court to receive the testimony of witnesses expressive of an opinion as to the mental testamentary capacity of the decedent, regardless of the competency of such witnesses to form a trustworthy opinion in that behalf.
    2. It is not error for a court to refuse to instruct the jury in a will case that there is no evidence sustaining the claim of undue influence, where evidence has been ofiered to the effect that a beneficiary under the will obtained the consent of the decedent to the calling of a lawyer to draw the will, and that a lawyer was procured and the will executed, and that two weeks later the same beneficiay applied to the probate court for the appointment of a guardian for the decedent on the ground of imbecility and was subsequently named 'as one of the guardians appointed by said court.

      Blair n Blair for plaintiffs in error.

      T. S. Hogan, Miller & Searl, and A. T. Holcomb, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 28, 1920.

   Middleton, J.

This is a proceeding in error to reverse a judgment of the court of common pleas setting aside, by the verdict of a jury, the last will and testament of one John Crowe, deceased.

The petition in error presents no new or unusual questions. It is contended by the plaintiffs in error that there was prejudicial error in the trial below:

First — In the exclusion of evidence offered by them.

Second — In refusing to give certain instructions to the jury-requested by them.

Third — That the verdict is aganst the manifest weight of the evidence.

The evidence excluded in the trial in respect to which complaint is now made, was the answer of Judge Beatty, who adjudged the testator to be an imbecile, soon after the will was executed, to the following question:

‘ ‘ I will ask you if, in your judgment, from what you saw and learned of John Crowe, he had sufficient mind and memory to make a proper testamentary disposition of his property on the date you saw him?”

And also the withdrawal from the consideration of the jury the last sentence in the answer of Arthur II. Bannon, the attorney who prepared the will and was present when it was signed, to a question regarding the mental condition of the testator at the time he made his will, which answer and question are as follows:

! Q. Now, Mr. Bannon, I will ask you what his mental condition was in your judgment at the time he executed and signed that will on the 15th day of March, 1915?
A. He had a well-balanced mind at the time, and knew what he was doing, and was able to make a,will.”

The witness’ statement “he was able to make a will” was withdrawn from the jury.

The action of the court in both instances was completely in harmony with the settled rule in this state as announced by our Supreme Court in Runyan v. Price, et al, 15 O. S., 1, and reaf, firmed by the same court in the more recent ease of Bahl v. Byal et al, 90 O. S., 129, decided March 17, 1914. In the former case it was held in the third syllabus:

“ * * * nor can he be asked his opinion as to the capacity of a testator to make a will. Such inquiry involves a matter of law; also assumes that the witness knows the degree of capacity required to perform the act in issue.”

And in the latter case in the first syllabus it is said:

“It is not competent, in a proceeding to contest a will, for a witness to give an opinion as to whether the testator had capacity to make a will. But the physical, and mental conditions from which it may be determined by the court and jury whether he had such capacity are facts which may be shown by evidence of manifestations of such conditions. ’ ’

While this court is satisfied that both witnesses involved here are undoubtedly qualified to know, and did know, the degree of capacity required by law to make a valid last will and testament, yet this inquiry in both instances involves the matter which, under the law, is to be determined by the jury, and is therefore within the inhibition named in the rule above quoted that it involves a matter of law. Therefore, the answers of both witnesses were incompetent.

It is contended, however, that the later case of Nimes v. Nimes et al, 97 O. S., 145, modifies or relaxes this rule. We have read this ease with great care, and while the opinion of the court by Judge Nichols is in very interesting discussion of the subject of the admission of lay testimony in respect to testamentary capacity it does not, in our judgment, decide anything pertinent to our inquiry here, nor does it modify in any degree the rule as established in Runyan v. Price, supra. At most, this opinion is a criticism of the reasons for the establishment of the rule which excludes such testimony. We can not, therefore, accept this case as authority for the admission of the testimony of these witnesses.

The next error complained of relates to the refusal of the court to instruct the jury that there was no evidence to sustain the claim of undue influence. • We can not discuss in detail this whole record. The testimony of one witness — Andrew Crowe, a brother of the testator and one of the two beneficiaries uniusd in the last will — furnishes, in our judgment, ample reason to support the refusal of the court to give this instruction. This witness testified that he procured the attorney who wrote the will. He says this was done at the instance of the testator. This shows that this witness undoubtedly discussed the matter of making a will with the testator before it was made, that he was in a position to talk to the testator before the latter made his will, and that he sustained such a relation to John Crowe that Crowe entrusted him with the duty of procuring a law to .write the will. It thus appears that this witness not only had the opportunity to influence the testator, but his further acts and admissions show that he had the disposition to control the testator if he could. It appears that, with the co-operation of others, he later succeeded in isolating John Crowe so that other relatives could not see him, and even refused the attorneys representing such relatives admission to Crowe’s presence, and then boasted of it when testifying. His interest in this matter is further shown by the fact that he filed an application charging the testator with imbecility within a short.time after this will was made, probably not more than two weeks, and that subsequently he was appointed one of the guardians of the testator. It is argued that, all these facts are without probative force as they occurred after the will was made. "While it is true they did so occur, yet they were so recent after the making of the will as to furnish strong proof, in our judgment, of this witness’ attitude and disposition toward Crowe not only after, but before the wall was made, and his evident purpose and intention to prevent testator from controlling his property and disposing of it as he might see fit. Here, at least, was a scintilla of evidence to support the issue of undue influence and required its submission to a jury.

.Instruction number eleven might, well have been given in the general charge, but the court was not absolutely required to give it, as the jury were fully and carefully charged on that issue in a most excellent exposition of the law, not only upon the question of undue influence but upon the mental capacity required in eases of this character We can not see upon what theory any prejudice resulted from the court’s refusal to give this instruction.

On the claim that the verdict was against the manifest weight of the evidence candor compels us to say that we are not satisfied with this verdict. We are not convinced, by any means, that John Crowe was not competent to make a will, but we can not substitute ourselves for the jury. The appointment of guardians by the probate court of this county very soon after this will was executed, upon the ground that the testator was an imbecile, was undoubtedly the most potent factor in bringing about the verdict in this case. These proceedings were instituted at the instance of the two beneficiaries named in the will, and it was upon their sworn affidavits that John Crowe was an imbecile that they were appointed as his guardians, and all this within a month, or perhaps a day or two longer, of the making of his will. Under such facts we can not say that the record does not present evidence to sustain this verdict, nor that the verdict is clearly wrong. Our position in respect to this claim is aptly stated by the court in McGatrick v. Wason, 4 O. S., page 575:

“Should we~ disturb this finding? If it is clearly wrong we must do so; if we only doubt its correctness we must let it alone. In French v. Millard, 2 O. S. R., 53, this court said: ‘We are not satisfied that the verdict of the jury was right. But this is not enough. A mere difference of opinion between court and jury does not warrant the former in setting aside the finding of the latter. That would be, in effect, to abolish the institution of juries and substitute the court to try all questions of fact. It must be clear that the jury has erred before a new trial will be granted on the ground that the verdict is against the weight of the evidence.’ ”

Judgment affirmed.

Walters and Sayre, JJ.; concur.


text:
    EFFECT OF COMPROMISE WITH INDEPENDENT CONTRACTOR BY ONE INJURED BY OBSTRUCTION IN STREET.
    Court of Appeals for Cuyahoga Countty.
    Kouba v. City of Cleveland.
    Decided December 16, 1920.

      Negligence — Woman Stepping from Street Car in Night Time — Falls over Pile of Sand, and is Injured— Contractor Primarily Liable and Recovery from Him Bars Action Against the City — Accord and Satisfaction.

    1. Where a person is injured by coming in contact with materials left in a street by an independent contractor in the execution of a contract with the city to repave a street, and such injured person receives compensation from the contractor in'comlete satisfaction of all claims against such contractor for damages arising from the injury, he can not later recover damages from the city for the same wrong.
    2. In such case there is but one wrong and one injury, and there can be but one recovery. The contractor alone is the active wrong ” doer and the one primarily liable, the city’s liability being secondary only.

      Englmder & Bowden, for plaintiff in error.

      W. B. Woods, director of law, and James Cassidy, tor defendant in error.
   Washburn, J.

Heard on error.

It appears from the record in this case that the city of Cleveland, desiring to repave one of its streets, entered into a contract with one R. P. Burnett. The contract provided that Burnett should be responsible for all damages occasioned through neglect or failure on his part, or of anyone in his employ; that he should take all necessary precautions to prevent injury tc. others. He further agreed to place colored lights and prope barricades at all excavations and other dangerous places, in order to prevent accidents. The contract also provided that Be nett should indemnify and save the city harmless from and against all claims, demands, suits, actions, recoveries and 'judgments of every description brought or recovered against it -by reason of any act or omission of said contractor, his agents or employees, in the execution of the work, or in consequence of any negligence or carelessness in guarding the same, or by reason of any insufficient protection.

It further appears that in performing the contract Burnett caused piles of sand, gravel and crushed stone to be placed on a portion of said street at a place where the cars of the Cleveland Railway Company regularly stopped to discharge and take on passengers, and that on September 25, 1918, there were no warning lights or watchmen to advise users of the street of the condition thereof, which is claimed to have been made dangerous for use by reason of said improvement beinb made; that the plaintiff, Grace Kouba, being a passenger upon a car of the Cleveland Eailway Company, alighted from it in the night season, at said crossing, came in contact with the piles of material, was thereby caused to fall and suffer injury.

For the purposes of this opinion, we assume that the circum stances were such that the plaintiff was entitled to recover damages for injuries caused by the negligence of Burnett in failing to properly guard said materials or warn the public in the use of the street.

It further appears from the record that after such injuries, plaintiff, claiming that the railway company was responsible for the same, succeeded in inducing the railway company to pay her $300, for which she gave the company a covenant not to suit it; that later she claimed that Burnett was also liable to her for said injuries, and, after negotiating with him, for and in consideration of $125 paid to her by him, entered into a covenant not to sue, in which covenant she recited these same injuries and the manner in which she received them, set forth her claim that Burnett and the city of Cleveland were liable therefor and that Burnett delied liability, and agreed for herself, her heirs, executors, administrators and assigns that she would not institute, maintain or prosecute any action against said Burnett to recover damages for said injuries, or for any other matter arising out of same. It was also stated in her said covenant not to sue that, she did not receive the $125 in payment or otherwise for her injuries, but only in consideration of her not suing, and that it was not her intention to release the city of Cleveland from any claim that she had against it for the injuries she had sustained, and that by acceptance of said money she did not intend to waive any rights of any hind or character that she might have against the city of Cleveland,- growing out of said action.

Upon being-sued, the city of Cleveland set forth in its answer as its second defense the fact that Burnett was a contractor, having the exclusive control over the method and manner and means of doing the work, that he had agreed to save the city harmless from any liability for damages for any injuries sustained by anyone in the use of said street, by reason of the condition in the street created by said contractor while the contract was being performed, and that her injuries were caused solely by reason of conditions created in the street by the contractor in doing the work of grading, draining and paving the street under said contract. The answer' also sets forth the fact that plaintiff had presented a claim to the railway company and made settlement with it, and had also made claims against Burnett, the contractor, and, for a consideration received, agreed not to sue him for injuries.

Upon the trial of the case these facts were proven, and the trial court, being of the opinion that plaintiff’s settling with Burnett, and for a consideration agreeing not to sue him, released the city from any liability to her for said injuries, arrested the evidence from the jury and rendered judgment in favor of the city.

The matter is now before this court, the claim being that the lower court, in rendering such judgment, committed error, for which the judgment should be reversed.

As we view this matter, assuming that plaintiff was entitled to recover from someone for injuries received by reason of negligence in not properly guarding said improvement and warning tbe public in reference to the use of the street, we think that not only by the terms of the contract between the city and Burnett, but by operation of law independent of the agreement to that effect in said contract, Burnett was the party, as between the city and himself, who was primarily liable to respond in damages for her injuries. The city was liable only because the law made it responsible for the negligence of the contractor, but its liability was secondary, and if it had been sued in the first instance, and recovery had against it, it could recover against Burnett, the contractor, the perpetrator of the wrong. Morris v. Woodburn, 57 Ohio St., 330, and Bello v. Cleveland post.

We are clearly of the opinion that if she had sued the party primarily responsible for her injuries, and had received satisfaction from such party, she could not then have sued the city and recovered for the same injury. We stated our view of this matter in the ease of Bello v. Cleveland, supra, as follows:

“Where there is but one wrong and one injury, there can he but one satisfaction; it would be different if both were active and independent wrongdoers, or if there were concerted action, but where one is by statute simply made liable for the wrongful acts of another, and that other responds in damages for his wrong to the injured party, there can be no further recovery.”

In this case, her agreement not to sue the party primarily, liable, where that agreement was supported by a valuable consideration, which was received and retained by her, is as complete a satisfaction as would have been a recovery of a judgment against the contractor and the payment of the same by the contractor to her. ’ The city was not an active wrongdoer, either independently or in concert with the contractor; its position, so far as this question is concerned, was in the nature of a surety for the wrongful acts of the contractor. She was charged in law with- full knowledge of that situathm, and when, .with such knowledge and for a valuable consideration, she bound herself not to enforce her claim against the wrongdoer, who was ultimately liable therefor, she ought not, in conconanee with good morals and a sound public policy, to be permitted to recover against one whose liability depended upon her right to recover against the wrong doer,

Dunlap and Vickery, J. J., concur.


author: Ferneding, J.

text:
    UNENFORCIBLE CONTRACT RELATING TO A STEAM AND INTERURBAN RAILWAY CROSSING.
    Court of Appeals for Miami County.
    Harmon et al., Receivers, v. The Springfield, Troy & Piqua Traction Co.
    Decided, June 18, 1918.

      Grossings — Maintenance, of — Where in a Street Used by Steam and Interurban Railways — Agreement Rendered Nundum Pactum by Lacle of Consideration.

    Since an interurban railroad may, without paying compensation, cross the tracks of a steam railroad located in the center and at the grade of a highway, a contract obligating an interurban railroad to construct and maintain a crossing is nundum pactum, where the only consideration for such a contract is the right granted the interur-ban railroad to cross the tracks of the steam railroad company.
    ^Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 26, 1918.

      J. E. Bowman, for plaintiffs in error.

      Broomhall & Broomhall, for defendant in error.
   Ferneding, J.

Heard on error.

The original action was brought by The Springfield, Troy & Piqua Traction Company against The Cincinnati, Hamilton & Dayton Railway Company to recover one-half the cost of the renewal of the crossing on the two railroads on the Springfield and Urbana turnpike road.

All the material facts are stated in the amended petition, and the cause was disposed of in the court of common pleas on a demurrer to the amended petition.

The amended petition contains the averments that the traction line operated, and crossed the steam railroad tracks, in the center of the highway, and that at the time of the construction of the traction railroad it was agreed between the two companies that the traction company was to construct and maintain the crossing at the intersection of such railroad.

The traction company contends, and the lower court held, that there was no consideration in the original agreement imposing the entire obligation upon the traction company.

Section 3775, General Code, provides: .

“When the tracks of two street railroads, or of a street rail-' road and a steam railroad, cross each other at a convenient grade on a street, the crossing shall be made with crossing-frogs of the most approved pattern and materials, and kept up and in repair at the joint expense of the companies owning such tracks.”

In the absence of a valid contract this statute would fix the liability of each of the companies. It was doubtless competent for the parties to vary this liability by agreement based upon a sufficient consideration.

The only supposed consideration contended for is the right of the junior company to cross the tracks of the senior company. Here, however, the crossing was in the center, and in the grade, of the public highway, and we think in such ease the- junior company has a legal right to cross the tracks of the senior company without compensation.

See C. & H. Elec. St. Ry. Co. v. C., H. & I. R. Co. et al. 21 C. C., 391, affirmed, without opinion, 64 Ohio St., 550.

There being, therefore, n.o consideration for the contract in question, it follows that the contract is nudum pactum and of no binding force.

The amended petition in our opinion states a cause of action, and the demurrer thereto was properly overruled.

Kunkle and .Adleead, JJ., concur.


author: Shields, J.

text:
    ILLEGAL REGULATIONS FOR GOVERNMENT OF BARBER SHOPS.
    Court of Appeals for Stark County.
    Ollie Lenhart et al v. E. W. Hanna et al.
    Decided, September Term, 1920.

      Constitutional Law — Police Power Must be Exercised Within Constitutional Limitations — Ordinance Regulating Barber Shops as a Sanitary Measure — Made Violative-of Constitutional'Rights by its Drastic Provisions.

    Police powers are not superior to constitutional limitations, and legislative action based on such power is subject to judicial review; and where action thus taken is unreasonable, oppressive, confiscatory and in contrayention of the right to carry on an occupation with due regard to law and the health of the community, injunction lies against its enforcement.'

      Amerman & Mills, for plaintiffs.

      G. A. Fisher, City Solicitor, and Jas. E. Kinni&on, Assistant Solicitor, contra.
    Heard on appeal.
   Shields, J.

The plaintiffs'for themselves and others who are engaged in the business of operating and employed in barber shops in the city of Canton, Ohio, brought suit against the defendants as members of the board of health of said city, including the defendant, J. A. Kappelman, as health'officer of said city, to enjoin the defendants from enforcing or .attempting to enforce the'provisions of a certain resolution passed by the said board of health, November 25, 1919, to be effective January 1, 1920, entitled a resolution ‘! providing certain rules and regulations governing barber shops in the city of Canton,” a copy of which resolution is attached to and made a part of the plaintiff’s petition, but the same is not here given'on áccoWt of its length,-the alleged objectionable features, however, appear in this opinion. That said resolution has been duly published and the same will be in force and effect on and after January 1, 1920, unless its operation is restrained by an order of court. After reciting the several provisions of said resolution, the plaintiffs aver that the same “is unreasonable, arbitrary, unjust, and without authority of law, and that it will be impractical and impossible for plaintiffs and others similarly situated in said city to observe all of the capricious rules and regulations provided in said resolution, which are entirely unnecessary in providing sanitary conditions in and about barber shops in said city.” That in attempting to conform to the provisions of said resolution, were they able to do so, it would entail an additional expense of from $10 to $15 per week upon each and every barber shop in said city, and in addition thereto it would be necessary to employ the service of special servants to carry out the provisions of said resolution, which would be practically ruinous to their business. That the employees in said barber shops have served notice on their employers that they will refuse to apply for a license to work under the terms of said resolution, that they will quit their present places of employment and seek employment elsewhere, where such unreasonable regulations do not obtain, and that by reason thereof the plaintiffs aver that if the provisions of said resolution are enforced, they will be obliged to discontinue their business. They further aver that the defendants have undertaken, arbitrarily and without authority of law, to assess a penalty for the non-observance of all the terms and provisions of said resolution; that in passing said resolution they have discriminated against those engaged in a lawful occupation by imposing unusual and unnecessary restrictions on them by requiring all such to submit to a physical examination and pay a fee therefor, thus creating an illegal and unconstitutional discrimination against such business, which is a practical denial' of their rights as citizens and a violation of their rights under the Constitution of the State of Ohio.' They further aver that they and others acting with them are without adequate legal means to protect themselves against the enforcement of the provisions of said resolution and that if the same is allowed to be enforced, they will suffer loss of their property and business and will be irreparably injured, unless the court in the exercise of its equity powers grants them protection and relief. A temporary restraining order was prayed for and they ask that on final hearing said order may be made permanent.

A general demurrer filed to said petition was overruled. Thereupon the defendants filed an answer to said petition admitting that the plaintiffs are engaged in the business of operating barber shops in -said city, that the defendants compose the board of health of said city, that J. A. Kappelman is the health commissioner thereof, that the resolution attached to the plaintiff’s petition is a true copy of the resolution adopted by said board of health providing rules and regulations to govern the operation of barber shops in said city, to become effective January 1, 1920, that the same has been duly published and that the plaintiffs and those in their employ have been notified of the provisions of said resolution, and barring the foregoing admissions the defendants deny each and every allegation in said petition.

A temporary restraining order was allowed by the court below as prayed for and on a hearing had said order was by said court made permanent. The case comes to this court on an appeal taken from the judgment of said court.

Several questions arise upon the record but those mainly insisted upon by counsel for the plaintiffs relate to the unreasonable and discriminatory character of the. resolution upon which this action is based. While admitting that the board of health of a municipality in the exercise of the powers conferred by statute may make and enforce all reasonable and necessary orders in the interest of public health, and may make such orders and regulations as it deems necessary for the prevention and spread of contagious diseases, all of which is of supreme importance to any community, it is contended on behalf of the plaintiffs that the defendants, in seeking to regulate the business of the plaintiffs by the passage of the resolution in question, have exceeded their authority in law by imposing upon them unreasonable restrictions and burdens with which they can not comply, and' which if enforced against them will result in their discontinuance in said business and practically amount to a confiscation of their property.

That the action of the board of health in passing said resolution was to regulate the business of barber shops in said city by requiring cleanliness to be observed in the places where said business is carried on, and of the persons engaged in said business, is apparent from the reading of said resolution, but are its provisions fair, reasonable, and impartial — reasonable and impartial toward this particular trade or business occupation which is everywhere recognized as both useful and legitimate, as much so as that of the merchant or other persons engaged in commercial business? The plaintiffs make answer in the negative. Without pointing' out in detail the objection made to said resolution, they say, among other things, that the provision requiring the proprietors of barber shops in said city to apply for and obtain a permit of the health department of said city upon the payment of an annual fee before being authorized to. carry on said business in said city, and the provision requiring a physical examination of all barbers carrying on said business in said city and the payment of a fee therefor as a condition thereof, and the provision requiring barbers while serving customers “to wear a light colored, washable blouse or coat” and “razors used on all customers must not be stropped until after they are sterilized,” and other like provisions in said resolution are unreasonable, .oppressive, and impracticable, and further, that they are violative of the constitutional rights of those engaged in said business as barbers.

While conceding that their places of business should be kept clean and sanitary, the plaintiffs and others engaged in said business testify that a strict regard for such practice is universally observed by them, and that in the use of tools and instruments used for carrying on their business, a like regard for cleanliness is shown to insure customers immunity from contracting and to prevent the spread of contagious disease when contracted. In this connection we may incidentally'refer to the interesting and valuable suggestions made by the members'of the board of health in their testimony upon this subject. As has been said “the human body is but a .reservoir for the accumulation of disease with its activities not limited to country or climate,” hence it is that the note of caution is sounded by those best qualified to speak upon communicable diseases that pare should be observed by those who congregate in business places, and that sanitary measures should be practiced both in public and in private as a necessary precaution against taking on any of the numberless forms of disease to which the human body is subject. Theoretically the philosophical dissertation of the witnesses of the medical profession on the nature and spread of contagious disease is sound, and in many respects the' provisions of said resolution making it necessary to observe sanitation in barber shops are equally sound, but we are still met with the proposition challenged by the plaintiffs, namely, Can the board of health require of the barbers what is termed a license as a condition to carry on their business in said city, to require that they be physically examined before hand and pay .a fee therefor, and be compelled to .wear a certain prescribed garb while engaged in the service?

We know of no good reason in morals or otherwise why the barber should be compelled to pay special tribute to the health department to enable him to carry 01 his business, if lawfully conducted, nor do we know how the 1 'oard of health assumes to take jurisdiction to regulate such business by requiring those engaged in such service to wear a cerl ain prescribed garb. That it has the power to regulate such business by the making and enforcing orders consistent with reasonable rules governing health is not disputed, but its right to enact penal measures as a means of enforcing unreasonable and discriminating legislation against a lawful trade and those engaged in it is disputed, and we think rightfully so, even assuming that all the necessary preliminary steps were taken by the board of health prior to the passage of said resolution, for it is but fair to assume that the power thus given is to be exercised in favor of the existence rather than the destruction of any lawful business. And we also think that every person engaged in a legitimate business has the right to prosecute such business in his own way, so long as. he does so by complying with the law pertaining to such business and by observing all reasonable rules pertaining. to the public health, and such right can not be interfered with or taken from him without due process of law. In the legitimate and peaceable pursuit of this business he is protected by the law and any curtailment of this privilege is an invasion of his constitutional rights. It was said in argument that where a subject is within the police power of the state, the question of regulation rests with legislative action and is not subject to the control of judicial decision, but this pre-supposes legislative action within constitutional limitations and not legislation which clearly discriminates against a particular lawful trade or occupation, and which does not impose unreasonable burdens thereon. In Froelich v. City of Cleveland, 99 O. S., at page 376 it was held that :

‘ ‘ The state and municipalities may make all reasonable, necessary, and appropriate provisions to promote the health, morals, peace, and welfare of the community. But neither the state nor a municipality may make any regulations which .are unreasonable. The means adopted. must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, and must have a real and substantial relation to their purpose, and must not interfere with private rights beyond the necessities of the situation.”

The same principle was announced in Toledo Disposal Co. v. State, 89 O. S., 230; also in Bernhardt v. Wise, 12 N. P. (N. S.), in the latter case the rule was announced that

“Under the mere guise of police regulations, personal rights and private property can not be arbitrarily affected, and the determination-of the Legislature is not-final or conclusive.”

¡So the discretionary power to be exercised by the Legislature must rest upon reason, for its exercise does not authorize an unlimited control over the business occupations of a people who are carrying on their business with a due regard for the law and its application to the health of the community. And in this connection it seems unnecessary to add that the power to regulate does not include the power to confiscate and destroy. Nor are police powers superior to constitutional limitations, and while it is a settled principle of law that where, a subject is properly within the police power of a state, the question as to what regulations are proper and needful is one for legislative action, and that discretion in such eases can not be controlled by judicial decision; still where it is exercised in direct conflict with a constitutional provision, such legislative action is not final but is subject to judicial decision, and we think such is the case here.

Without pursuing this subject further we are of the opinion that the provisions of said resolution in the several respects mentioned are unreasonable and oppressive, that the same are in violation of the right guaranteed to every person under the law to pursue his business occupation, lawfully, as he sees fit, that the same are discriminatory in character, and that said rescdution is in violation of Section 1, Article 1, of the Constitution of-Ohio. A judgment and decree may be entered in favor of the plaintiffs and the temporary injunction heretofore allowed will be made permanent. Exceptions.

Houck, J., and Patterson, J., concur.


author: Hamilton, J.

text:
    SCHOOL BOY SERIOUSLY INJURED BV EXTRACTION OF TOOTH BY A SCHOOL DE NTIST.
    Court of Appeals for Haimilton County.
    McHenry v. Board of Education of Cincinnati.
    Decided, January 17, 1921.

      Boards of Education — Attention to Teeth of Pupils by Dentist Employed by Board is a Ministerial Duty — Broadening of School Activities Require Change'in the O'ld View, of Governmental Functions — Liability of Board for Injury to Pupil by Sihool Dentist.

    A board of education is liable for injury from the wrongful act of a servant in the performance of a purely ministerial act, where the wrongful act was the proximate cause of the injury and without fault on the part of the injured person. Fowler, Admrx., v. City of Cleveland, 100 O. S., 158, followed.

      Theodore Horstman, for plaintiff in error.

      Saul Zielonka, city solicitor, and Harry B. Weber, assistant city solicitor, for defendant in error.
   Hamilton, J.

This action was one of negligence for personal injuries.

It appears from the petition that "William McHenry, Jr., a boy 11 years of age, was a pupil in the public schools under the jurisdiction o£ the board of education of the school district of Cincinnati, Ohio; that he was required by the principal of the school to submit himself for examination and treatment for his teeth to a dentist who was an employee of the defendant, and that without the knowledge of his parents the dentist extracted one of the boy’s teeth, and in doing so fractured the jawbone; and that he was negligently treated and as a result suffered from blood poisoning, the removal of his jawbone, the amputation of his left leg, stiffening of the shoulder and other injuries. The petition prayed for damages.

To this petition the defendant filed a demurrer on the ground that the court had no jurisdiction of the subject of the action and that the .petition did not state facts which showed a cause of action. The trial court sustained the demurrer and dismissed the petition. Error is now prosecuted to this court.

There is no statutory authority for maintaining such an- action. It was formerly stated to be the settled law of the state of Ohio, as well as of the land, that such a body corporate as the defendant herein is not liable for an action in tort unless specifically authorized. by the statute, and this rule has been so well settled, and so often thus decided, that the citing of authorities is unnecessary. It appears, however, that our own supreme court, in the recent case of Fowler v. Cleveland, 100 Ohio St., 158, departed from this which seemed to be the established law of the land. That case was an action brought against the city of Cleveland by the plaintiff for the wrongful death of Fowler, caused by its fire department’s motor hose truck in returning from a fire. The case of Frederick v. Columbus, 58 Ohio St., 538 (51 N. E., 35) has been the recognized authority in the state of Ohio for holding that such actions can not be maintained without statutory authority. In the Fouiler case the Frederick case is specifically overruled, thereby departing from the settled law with reference to the liability of municipal corporations for tort. The question then is, Does the Fowler case apply to other governmental subdivisions of the state? Plaintiff’s right to maintain this action must be founded upon the rule pronounced by the court in the Fowler case. The principle announced as set forth in the third proposition of the syllabus in the Fowler case is :

“But where a wrongful act which has caused injury was done by the servants or agents of a munieipaltv in the performance of a purely ministerial act "which was the proximate cause of the injury without fault on the part of the injured person respondeat superior applies and the municipality is liable.”

It will be noted a distinction is made between acts performed in a governmental capacity and the performance of purely ministerial acts, but there seems to be no well-settled line of demarcation between what constitutes a governmental act and a purely ministerial act. However, that need give no concern in the consideration of this case, for the reason that the act of negligence complained of is clearly within the meaning of a purely ministerial act. The trial court in its decision undertook to make a distinction between the applicability of the rule in the Fowler-case- to municipalities and its applicability to other corporate entities, and this position is also taken by counsel for defendant in error here. However, no authority or reason is announced for that distinction, and it rests on the statement that the Fowler case only determines the questions as to municipalities and does not extend to other subdivision corporate entities, the claim being that other subdivisions are but quasi-corporate entities. While the holding in the syllabus in the Fowler case only applies to municipalities, if we are to consider the reasoning and logic of the decision, as pronounced by Judge Johnson, for the majority of the court, we are led to the conclusion that the court intended the rule to apply generally to subdivisions of the state wherever such subdivision is engaged in governmental or ministerial acts. That the board oE education is such is clearly-shown by See. 4749, G. C., which provides:

“The board of education of each school district, organized under the provisions of this title, shall be a body politic and corporate, and, as such, capable' of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of real and personal property, and taking and holding in trust for the use and benefit of such district any grant or devise of land and any donation or bequest of money or other personal property and of exercising such other powers and privileges as are conferred by this title and the laws relating- to the public schools of this state.”

The opinion of Judge Johnson is largely made up of criticism of the rule which had heretofore existed, and the reasons for the same. The language used is general in its terms. That this is true is shown by the following excerpts from the opinion (pages 163 and 164):

“The power to determine whether certain steps shall be taken in the interest of the public welfare is governmental, and the exercise and expression of the discretion as to the kind of steps and the extent of. them is governmental. * * # It was a favorite maxim of the early times in this country that that government is best which governs least, and the authority of the federal government to make internal improvements was long contested. It was the natural expression of protest against the ancient idea that the sovereign was the active and all-pervading influence, and that the duty of the people was to exalt the sovereignty.
“Now, the activities and undertakings of a municipal corporation are manifold. They reach and touch in countless directions. It seems to be utterly unreasonable that all these activities and enterprises which are brought closely home to the lives' of all of the people of the municipality must still be regarded as bound up in the vague and uncertain sphere of what is called a governmental function.”

It will be noted that these remarks were made in discussing the distinction between governmental and ministerial functions, but there is nothing in the opinion in the way of discusssion as to whether a municipality might be liable under such circumstances, and another subdivision of the state, having like duties by way of governmental or ministerial functions to perform, might not. That the court did not intend to limit the rule laid down in this ease .to municipalities is further shown by reference to the fact that the general assembly of Ohio has by statute created a liability against a county in favor of persons injured by mob violence . While this refers to statutory authority on maintaining an action, it shows that the court was not limiting itself in its pronouncement of the new rule to municipalities. Judge Wanamaker in a concurring opinion goes further than the majority opinion and sweeps aside the question of class or sub-, division or functions of a subdivision, and puts himself on the broad ground of the rght of every person under the constitution for an injury done him in his land, goods, person or reputation to have remedy by due course of law.

The board of education as defined by the statute is “a body politic and corporate, and, as such, capable of suing and being sued, contracting and being contracted with,” etc. Its duties are governmental and ministerial.' It has the power to determine whether certain steps shall be taken in the interest of the public welfare in educational matters, and the exercise and expression of the discretion as to the kind of steps and the extent of them, all of which is governmental.

It may well be claimed that formerly the action of school boards was governmental only. Now the activities, undertakings of the board of education in carrying out the modern thought of education and development of the physical, as well as of the mental side of the pupil, are manifold. They reach and touch in countless directions. The health of the child is considered as important as the mental development. Medical examination is had in order to classify pupils. Music, art, domestic science, athletics and calisthenics all have been added. It seems unreasonable that all these activities and enterprises, “which are brought so closely home to the lives of the people of the school district, must still be regarded as bound up in the uncertain sphere of what is called a governmental function.” In reason and in logic the rule in the ease of Fowler v. Cleveland, supra, applies to boards of education, and, is, therefore, controlling in this case. Until the Supreme Court limits the application of the principle this court- should follow the rule enunciated by it.

The court erred in sustaining the demurrer to the petition and the judgment will be reversed.

Shohl and Cushing, JJ., concur.


author: Allread, J.

text:
    LIABILITY OF HUSBAND FOR SUPPORT OF WIFE WHO HAS ABANDONED THEIR HOME.
    Court of Appeals for Miami County.
    Eugene Shilling v The State of Ohio.
    Decided December 30, 1920.

      Husband and Wife — Malicious Destruction by Husband of Property Belonging to Wife.

    The conviction of a husband for malicious destruction of property belonging,to his wife may be sustained whore it appears that the hus band and wife at the time of the alleged offense had separated or were in the act- of separating. State v. Phillips, 85 O. S., 317, distinguished.

      Alva W. DeWeese. for plaintiff in error.

      B. A. Kerr, Prosecuting Attorney, for defendant in error.
   Allread, J.

The plaintiff in error was indicted and convicted for malicious destruction of property, not his own, under Section 12477, G. C.

The indictment conforms to the statute. By the evidence, it appears that the property alleged to have been injured or destroyed was that of the wife of the accused. It also appears that the accused and his wife had separated or were in the act of separating ; that the accused had returned to the former residence of himself and wife, where his wife still resided, to obtain his own goods and while there injured and destroyed certain household goods and paraphernalia claimed to have been the separate property o£ the wife.

Upon the evidence as to the wife’s ownership the trial court charged in substance that if the property described in the indictment or part thereof, although purchased by the husband ivas given to the wife with the intention on his part that it should be her property, and such facts were proven beyond a reasonable doubt, then such property or such part thereof should be considered the property of the wife within the meaning of the indictment.

Motions for an instructed verdict of aoquital were made and overruled. Exceptions were taken to such rulings and to the charge of the court. The plaintiff in error was found guilty as to a portion of the property described in the indictment. Motion for a new trial was overruled and the plaintiff in error was sentenced. A petition in error has been filed to review such judgment and sentence.

Counsel for the plaintiff in error relies up State v. Phillips, 85 O. S., 317, and counsel for the state relies upon the case of Pratt v. State, 35 O. S., 514.

The opinion of Judge McIlvaine in Pratt v. State, sustains the charge of the court in the case at bar as to the validity of a gift to the wife, but the question of the guilt of the husband or wife under the general criminal statute for an offense affecting the property of- the other was not involved in that case.

The Phillips case is more directly in point. It was there held:

“The common law rule that neither husband nor wife can be prosecuted for larceny of the goods of the other, is not abrogated by Sections 7995 to 8004 General Code, defining the rights and liabilities of husband and wife nor by Section 12447, General Code, defining larceny. An intention of the Legislature to abolish an established rule of the common law, and to create a crime where none existed before, must clearly and unmistakably appear. ’ ’

In Hutchison v. State, 8 C.C.(N.S.), 313, the conviction of a husband, upon a charge of arson for the burning off-a building owned by the wife, was sustained and motion for leave to file petition in error in the Supreme Court was overruled. It does net. appear that the question of the community of property between the husband and the wife was presented or considered in that ease.

The Phillips case stands as the law of this state and it only remains for this court to consider whether the case at. bar falls within the rule of thePhillips case or is distinguishable. The Phillips case is founded upon the unity of husband and wife and .the community of goods involved in such relationship. Judge Davis sarefully states:

"The case is easily distinguishable from many of the cases cited in argument, in which there appear schemes of fraud or vio lenee of which marriage is a part or to which it is an incident, or in which the wife of a husband goes away from the other with adulterous intent, the paramour assisting in the asportation and use of the goods of the defrauded spouse, or in which a third person, without adulterous intercourse or intent, assisted in appropriating and using the goods which were charged to have been stolen.; because none of these elements are found in this record.’'

We think that the opinion in the above case shows that it was intended to limit the decision to the facts of that case, and upon full consideration we are of opinion that the decisions should not be extended beyond the case necessarily decided. The reasons for adhering to the common law rule in the Phillips case are thus stated in the concluding paragraph:

"Moreover, the unity of husband and wife, as recognized in the common lawr, is founded not merely on a community of goods, but upon the recognized obligation of both to the family and to society. The unit of society is not the individual but the family; and whatever tends to undermine the family, by the irrepealable laws of nature will crumble and destroy the foundations of society and the state. So that the peace and sancity of the home and family are the ultimate reason for the common law rule. ”

In the Phillips case the husband and wife were livdng together at the time the. alleged offense was committed. The family relation, therefore, existed in fact. ' The court merely upheld the common law doctrine as applied to an existing relationship.

In the case at bar the. husband and wife had separated or were in the act of separating. The family unity -was broken up and the property was being divided.

In the case of Snyder v. People, 26 Michigan, 106, cited with approval in the Phillips case. Judge Cooley while upholding the common law doctrine of community of property in a ease of arson makes the following .notable distinction:

“But, in so holding we do not decide that if the family relation is broken up in fact, and the husband and wife are living apart from each other, whether, under articles of separation or not the same exemption from the criminal liability can exist. There is much reason for holding that the dwelling house can be considered that of the husband only while, he makes it such in fact, and that there is no such legal identity as can preclude her husband from being considered, in legal proceedings against him, as the dwelling of another when it is no longer his abode.”

The cases of State v. Wincroft, 76 N. C. 38, and State v. Matthews, 76 N. C., 42, also cited in the opinion in the Phillips case are expressly based upon the fact that the husband and wife were living together at the time the offense was committed.

The case of Kopcyznski v. State, 137 Wis., is an arson case but directly involves the effect- upon community property, when the husband and wife are living apart. The decision expressly approves the opinion of Judge Cooley in the Snyder case and elaborates upon the exception above quoted. The syllabus is as follows:

“Neither husband nor wife can be guilty of arson in burning the dwelling house which they jointly occupy as a home regardless of the status of the title - but, it is otherwise where the house is the habitation of one, the other having left it to reside elsewhere, although the marital relations still exist.”

In the opinion after stating that the common law rule of community of property does not apply after a separation it is stated:

“There is no prejudicial authority to the contrary brought to our attention or which we have been able to discover, nor any reason harmonizing with the logic of the common law rule as applied to the concurrence of facts to ivbich only it relates.”

Upon a full consideration of the authorities and the reasons underlying the decisions we can not escape the conclusion that where the husband and wife have separated or are in the act of separating, one can not claim the benefit of the common law doctrine of community of goods to defeat a charge of malicious destruction of the property of the other.

The learned trial judge held that the doctrine of the Phillips case should not be applied because the offense here was not adopted from the common law. This position is not without some force but we express no opinion upon that proposition. The phase which we have discussed is in our judgment decisive.

A marked advance has been made in the emancipation of married women in the last half century. The right to hold and control property is now fully recognized in this state. The Married Women’s Act also provides for a separation and the division of property. The act of the husband as shown by the verdict was of a malicious and unjustifiable character. It would seem shocking and also incredible that in the year of 1920 such an offense should go unpunished. From a consideration of the-entire record we find no prejudicial error and the judgment is. therefore, affirmed.

Ferneding and Kunkle, JJ., concur.


text:
    OWNERSHIP OF LANDLORD’S SHARE OF CROP GROWING ON LAND CONVEYED.
    Court o£ Appeal's for Scioto County.
    L. D. Crabtree v. Nat Smith.
    Decided, April 18, 1919.

      Crops — Share Going to Owner of the Land Treated as Rent — Deed to the Land Conveying All Issues and Profits Covers Owner’s Share of the Crop — Oral Agreement to the Contrary Not Admissible.

    1. When real estate is leased for a consideration consisting of a part of the crops raised thereon, the owner’s share of such crops is rent for said land and such crops are also the issues of the land for the year in which they are raised and harvested.
    2. A deed which conveys certain lands described therein “together with all the privileges and appurtenances to the same belonging • and all the rents, issues, and profits thereof” passes to the grantee all the grantor’s rights and interests in and to all crops then growing on said lands. Evidence of a parol reservation by the grantor of his interest in such crops when the deed was executed is not competent to' modify or contradict the express terms of the grant aforesaid. '

      A. Z. Blair, contra.

      B. F. Kimble, for plaintiff in error.
   Middleton, J.

On the 5th day of August, A. D. 1918, the defendant in error, Nat Smith, and his wife, Annie Smith, conveyed to the plaintiff in error, L. D. Crabtree, by deed of general warranty, a certain farm situate in this county, “together with all the privileges and appurtenances to the same belonging and all the rents, issues and profits thereof. ’ ’

Growing on the farm at’ the time of this conveyance was a crpp of corn which had been planted and cultivated by one. Darey M'cCain, who was in possession of this farm and continued in possession thereof until after the corn crop was harvested in the fall and who, under his contract with the owner Smith, was entitled to two-thirds of said crop divided in shock, the remaining one-third being Smith’s share as his rent, or at least a part of his rent for the premises. It appears from the record that when the crop matured both Smith and Crabtree claimed the owner’s or landlord’s share, which controversy resulted in this litigation. Smith claimed the corn by reason of a parol reservation made at the time the deed was executed, and which he was permitted in the lower court to establish by oral evidence. Crabtree not only denied such parol agreement, but insisted that evidence of the same was inadmissible as under the express term of the grant made in the deed this corn passed to him. The lower court found in Smith’s favor, and if the evidence was properly admitted by which the parol reservation claimed by him was shown we would not be inclined to interfere with the judgment, as the evidence clearly sustains his contention.

The single question, therefore, before us is whether or not the admission of this evidence contravened the general rule against the admission of oral testimony to contradict, modify or vary the terms of a written contract.

"We do not question the proposition that in this state at least growing crops may be reserved by a parol agreement from the operation of a deed for the real estate on which they are growing, nothwithstanding the further fact that such crops will pass with a grant of the land as a'p'art thereof in the absence of-such reservation. This principle was established by the case of Baker v, Jordan, 3 O. S., 438, and rests primarily upon the theory that 'such crops are regarded generally as personal property and if the parties to a deed treat such crops as personalty and contract by oral agreement accordingly, evidence of such agreement does not contradict the. deed but is consistent therewith. Manifestly this rule may not apply where the deed by its express terms treats such crops as a part of the realty, and plainly and by language subject to no doubt passes them with the realty to the vendee. The deed considered by the court in Baker v. Jordan, supra, "may be found recorded in Vol. 51, at page 228, of the deed records of Ross county, and grants' and conveys only real estate, which the grantee is to have and to hold with its appurtenances. No reference whatever is made in that deed to the “rents, issues and profits” of the land and there is no grant of the same, with the real estate, as in the instant case. Can we, therefore, give full effect to this deed, as the court did to the deed in Bakery. Jordan, and regard it as conveying only the real estate and not including the corn crop in question? We think not. This corn, or the share in controversy, was rent for the use of the land. While rent is ordinarily payable in money, and in a technical sense the right to receive it may be considered an interest in the realty, yet il is the common understanding in this section and everywhere that, in the ease of a cropper that portion of the crop he gives for the use of the land is considered as rent. Lamberton v. Stouffer, 55 Pa. St., 284. In this case it is said that,

' “The reditas or rent of a cropper being a portion of the crop, falls due and is payable only when the crop is harvested. . This is the universal-understanding.”

Further, it is held in that case that,

‘1 Grain sown in one year and harvested in the next is the Issues and profits of the year in which it is harvested,”

Attention is directed to the case of Bruce v. Thompson 26, Vt., 741, in which it is claimed a different interpretation is given to* the terms “rents, issues and profits,” but it is clear that the court in that case did not consider these terms under the circumstances presented here, but only in the sense in which they were used in a statute. Moreover, in that ease it is said:

“Eents; issues and profits and such as are of the nature of rent, which is as everyone understands a reditus or return by .some one holding the land of another for which' he owes such return.”

- There is no difficulty in bringing the subject of this suit ydthin the scope and meaning'of “rent” as defined.by that'court.',

- Smith’s-share of. tl}e corn, was at least a part Of.the''issues of ..the farm in 1918, .and also rent-which w-as aceJU-ing.at' the tim'e the deed was executed, although not due and payable until cut and in shock.

Upon what theory then may it be excluded from the terms “rents, issues and profits” as employed in the deed? The grant was present, as well as future. It passed all of Smith’s immediate rights and there is nothing in the language used by which it could be limited in its operation to the “rents, issues and profits” of some other and future year.

The' effect of a grant of “rents, issues and profits” in a deed. was before the court in Wilhoit v Balmon et al, 80 Pac., 705 (146 Cal., ....). In that case one Jane Salmon executed a deed in escrow to be delivered at her death, but reserving in the deed a life estate in the lands conveyed. At her death the land was held by another under a contract for grain rent, and a dispute arose between her personal representatives and the grantees in the deed as to the disposition of the crops growing at her decease. In discussing the operation and force of the grant of all the rents, issues and profits aforesaid the court say:

“When Jane Salmon made her conveyance to the appellants, it was for her to determine the extent for which she should transfer her property to them. * * * If she saw fit by the terms of her deed to cut off the common law incidents of a life estate— the right to emblements — by words clearly having that effect and operation, that was her right. And this is what, by the express terms of her deed; she did. To the fullest extent possible, she conveyed to her grantees all her interest in the la.nd, ‘together with the rents, issues and profits thereof.’ She divested herself of all existing and future rights in the property, except solely the right to retain the use and occupancy of the premises, and take and receive the rents and profits during her life time. * *
* * In her grant to them the language was broad and comprehensive enough to deprive her of all common law incidents of a life estate, and we see no room for contention that it did not. The clause in her deed granting to appellants the premises, with the ‘rents, issues and profits thereof,’ is entirely incompatible with any construction which would support the contention of respondent that the right to the ‘rents’ of the premises was resei*ved to the grantor as a common law incident to her life estate. To so hold would be to render such clause meaningless and inoperative. It would be idle to suggest that by it the grantor intended to convey.only such crops to her grantees as the latter might sow after obtaining possession on her death. They would take those by virtue of their ownership of the land, and independent of any such provision in the deed. They could, however, only take the crops which were sown by her while life tenant, or to which she would be entitled, by virtue of such clause in their deed, and it was undoubtedly tlie intention of the grantor to effect that purpose — the only one which the provision would be pertinent to accomplish, and which we think it did.”

If the grant of “all the rents, issues and profits” made by Smith in his deed is to be regarded at all and given any meaning whatever, it disposed of all his interest in the growing crop of corn and passed it to the grantee, Crabtree. A.ny parol agreement to the contrary was and is not consistent with the deed, and testimony by which such agreement is .sought to be established is not admissible. This conclusion may not be in harmony with the intention of the parties to the actual contract as understood by both the grantor and grantee, but this is not an action in equity to reform a deed and the court will lcok only to its plain provisions to ascertain the intention of the parties. Stove Co. v. Ry. Co., 23 C. C. (N.S.), 260.

Judgment reversed and case remanded for a new trial.

Walters, J., and Sayre, J., concur.