author: Conn, P. J.

text:
    City of Toledo, Appellant, v. Lowenberg, Appellee.
    (No. 4832
    Decided February 21, 1955.)

      Mr. Nicholas J. Walinski, for appellant.

      Mr. Arthur P. Feinberg, for appellee.
   Conn, P. J.

The defendant was charged with failing to yield the right of way, in the operation of her automobile, at the intersection of Collingwood and Fernwood Avenues in the city of Toledo. Upon the trial, defendant was found guilty and judgment was entered against her accordingly.

An appeal was taken to the Common Pleas Court on questions of “law and fact” and that court, upon consideration thereof, found “there was error prejudicial to defendant-appellant on the face of the record and in the proceedings,- finding and judgment of the Municipal Court,” and reversed the judgment and discharged defendant.

From that judgment of reversal, the city of Toledo has appealed to this court on questions of law. No assignments of error, designated as such, were filed in this court, but it appears in the brief of counsel that the errors raised by defendant in the Common Pleas Court were that the arrest of defendant was unlawful and “error of law on the evidence.”

A procedural matter is disclosed on the record, to which we direct attention. The appeal from the judgment in the Municipal Court to the Common Pleas Court was taken ou questions of law and fact. Since appeals on questions of law and fact, broadly speaking, are at present limited to chancery cases, the jurisdiction conferred on the Common Pleas Court on such appeal would be to dismiss the appeal on motion or sua sponte by the court, and, thereupon, retain the cause as an appeal on questions of law. It appears that the case was heard and submitted as an appeal on questions of law. Under these circumstances, neither party having sustained any prejudice, the procedural irregularity may be passed.

The judgment entry in the Common Pleas Court did not set forth the specific grounds upon which the judgment was reversed.

The record discloses that the motor vehicle operated by defendant collided with a taxicab at the intersection of Collingwood and Fernwood Avenues; that the taxicab was moving south on Collingwood Avenue, a main thoroughfare; that defendant was proceeding west on Fernwood Avenue, approaching Collingwood Avenue, and, after making a safety stop, proceeded into the intersection; and that a collision occurred with the taxicab, resulting in damages to both vehicles and some personal injuries to the occupants.

It further appears that a police officer arrived at the scene in a few minutes, but did not witness the collision. After some investigation and interviews, the officer gave the defendant a ticket with the notation “failed to yield right-of-way,” and that the defendant should appear in court on a day certain. Later the same day, the officer made an affidavit charging that defendant did unlawfully operate a motor vehicle at “Collingwood and Fernwood in the city of Toledo, and did then and there commit the following offense: * * * Failed to yield right-of-way.”

The case was called at the time designated in the citation, and continued. After several additional continuances, the case was tried and defendant found guilty.

Counsel for defendant contends that the defendant was under arrest upon receiving the citation from the officer, and that an arrest for a misdemeanor by a police officer, not committed in the officer’s presence, is an unlawful detention and amounts to false arrest.

False arrest consists of an unlawful and total detention or restraint upon one’s freedom of locomotion, imposed by force or threats. See, also, 5 Ohio Jurisprudence (2d), 18, Section 2.

In the instant case, no restraint, total or otherwise, was imposed upon defendant by the officer’s citation. So far as the record shows, the subsequent appearances of defendant in court were voluntary. It is clear that this is not a case of unlawful detention or false arrest.

The evidence is undisputed that Collingwood Avenue is a main thoroughfare and that defendant brought her motor vehicle to a stop immediately before entering the intersection. Defendant further testified that she waited until the intersection was clear before starting across and that when she was ‘ ‘ almost across the intersection” the taxicab collided with the right front part of her vehicle. Defendant’s testimony was corroborated by a witness, a lady passenger, who was sitting in the front seat to the right of the defendant at that time.

The operator of the taxicab testified that his speed was about 10 miles per hour as he approached the intersection and immediately prior to the collision, and that he was following another car at a distance of about 20 feet. This evidence is not corroborated. The vehicles collided with considerable force.

The witness called by defendant testified that the cab driver operated his vehicle faster than 10 miles per hour, and stated that “he was going fairly fast.”

Section 2953.02, Revised Code, provides for the review of a judgment of the Municipal Court entered in a criminal case, including a conviction for the violation of a municipal ordinance, by the Court of Common Pleas, and, also, for the review of the judgment of the Common Pleas Court on appeal, by the Court of Appeals.

The issue raised on the appeal to this court is the validity of the judgment of the Court of Common Pleas.

We give attention first to the rule that all reasonable presumptions, consistent with the record, will be indulged in favor of the validity of the judgment under review. This rule applies to criminal cases as well as to civil.

We quote the statement on “Presumptions on Review,” in 3 Ohio Jurisprudence (2d), 666, Section 714, as follows:

“A reviewing court generally indulges presumptions very freely for the purpose of sustaining the action of the lower court and very sparingly for the purpose of overthrowing it; presumptions are made in aid of the record rather than in opposition to it. Accordingly, a state of case which will invalidate the record or which is necessarily in conflict therewith, will never be presumed.”

We have examined the record in this case, in the light of the presumptions in favor of the judgment entered in the Common Pleas Court, and have reached the conclusion that the evidence does not attain to that “high degree of probative force and certainty which the law demands to support a conviction.”

State v. Urbaytis, 156 Ohio St., 271, 102 N. E. (2d), 248; Atkins v. State, 115 Ohio St., 542, 155 N. E., 189; State v. Petro, 148 Ohio St., 473, 76 N. E. (2d), 355, 5 A. L. R. (2d), 425.

A collision of two motor vehicles on a public highway does not invariably result proximately from the violation of a criminal statute or ordinance. Such collision may be proximately caused by negligence only. In such event, a cause of action for damages may arise and the case is limited to the civil side of the docket.

It is our opinion that the judgment of the Court of Common Pleas reversing the Municipal Court and discharging defendant should be affirmed.

The judgment is affirmed and the cause remanded to the Municipal Court for execution for costs.

Judgment affirmed.

Fess and Deeds, JJ., concur.


source: Caselaw Access Project

author: Miller, P. J.

license: Public Domain

text:
    The State, ex rel. Loofbourrow, Solr., v. Board of County Commissioners of Franklin County et al.
    (No. 5246
    Decided March 10, 1955.)

      Mr. Clark E. Loofbourrow, for relator.

      Mr. Frank H. Kearns, prosecuting attorney, and Mr. Earl W. Allison, for respondents.
   Miller, P. J.

This is an action in mandamus, originating in this court, wherein the relator is seeking a writ commanding the respondents, who constitute the Board of County Commissioners of Franklin County, to act upon his petition, brought under Section 709.14 et seq., Revised Code, for the annexation of certain territory to the village of Worthington. The petition sets forth facts showing that all the required steps have been taken in order to comply with the statute in order that the territory might be annexed to the municipal corporation. It is contended, however, by the respondents that there is no petition for annexation properly before them; that they have no jurisdiction to pass upon the same; and that, therefore, the order of dismissal was the only one they could lawfully have made.

The petition in this proceeding discloses that the annexation petition filed with the county commissioners, in attempting to comply with Section 709.15, Revised Code, was filed prior to the holding of the election called for by Section 709.17, Revised Code. The respondents urge that this was not in accordance with law and have demurred to the petition on the following grounds:

(1) The petition does not state facts which constitute a cause of action.

(2) The relator does not have legal capacity to sue.

The second ground is not well taken for the reason that the petition sets forth facts showing that the village duly passed an ordinance directing the relator to prosecute the proceedings necessary to effect the annexation which is clearly the object of this action.

The next question for consideration is whether the petition was properly filed with the county commissioners who are contending that after the passage of the ordinance seeking to annex the territory all further proceedings were stayed pending the election, citing Section 709.17, Revised Code, which provides :

“A vote by the electors of the unincorporated area of the township shall be taken under the election laws of this state at the next general or primary election occurring more than thirty days after the legislative authority of a municipal corporation passes the ordinance mentioned in Section 709.14 of the Revised Code. Thereupon all annexation proceedings shall be stayed until the result of the election is known. If a majority of the electors of such area voting in the election favor annexation, proceedings shall begin within ninety days to complete annexation, and if a majority of the electors voting in the election is against annexation, no further proceedings shall be had for at least five years.”

A majority of the electors favored the annexation and it, therefore, became incumbent upon the commissioners to act upon the petition within ninety days after the election, providing they had the jurisdiction to do so. It appears that their refusal to act upon the same was grounded upon the advice of the prosecuting attorney who was of the opinion there was no valid petition pending before the board; and that since no petition was filed after the election there was nothing before it for its consideration. He based his opinion, and we think properly so, upon a former Attorney General’s ruling, Opinions of Attorney General (1947), 500, No. 2271, made on September 25, 1947, in which it is stated at page 502:

‘ ‘ The first step in the annexation proceeding which the law requires is the passage by the municipal council of the ordinance authorizing such annexation to be made. Logically, the next step would be to ascertain whether the electors in the unincorporated area of the township will consent to the annexation. If their vote is favorable, then according to the language of Section 3561-1 ‘proceedings shall begin within ninety days to complete annexation.’ I think emphasis may well be laid on the words, ‘ shall begin. ’ Proceedings, so far as the county commissioners are concerned, will certainly ‘begin’ by filing a petition with that body, and the other steps required by the law will follow. If we take the contrary view, the county commissioners would proceed, under the law relating to the original incorporation of villages, to appoint a time for hearing at least six weeks ahead (Section 3520, General Code) to require notices of the proposed annexation to be published and posted and then to a hearing which might be considerably protracted and possibly contested, and would finally determine that the annexation ought to be made, and having reached that conclusion and entered their order to that effect, it would then be found that the whole proceeding was a waste of time and money because of the refusal of the electors to consent to the annexation. I do not believe the law intended to require so absurd a procedure.”

We are, however, unable to agree with the reasoning and conclusions of the Attorney General for several reasons. It is our opinion that the commissioners are not required to act under Section 3520, General Code (Section 707.05, Revised Code) upon the expiration of sixty days, but that this proceeding shall be stayed under Section 709.17, Revised Code, until after the election; hence, there should be no unnecessary expenditure of time or money in case the vote is not favorable to the annexation. Section 709.17, it appears, contemplates that the proceeding be begun before the board prior to the election, for it provides that if the election is favorable “proceedings shall begin within ninety days to complete annexation.” In order that there may be a completion of something there must also have been a beginning; hence, the word “begin” as used in the statute must refer to the hearing by the board to proceed to a determination of the question presented by the petition. Proceedings before the board are commenced by the filing of a petition, and the law is well established that when conflicting petitions are filed with the proper authorities seeking to annex the same territory, the one first filed shall have priority, and proceedings on the subsequent one shall be enjoined until there can be a determination of the first. 28 Ohio Jurisprudence, 50, Section 20; Waltz v. Bummersteen, 5 Ohio Law Abs., 712; State, ex rel. Storc, v. County Commissioners of Trumbull County, 69 Ohio Law Abs., 214.

In Roush v. Barthalow, Aud., 105 N. E. (2d), 85 (on appeal on questions of law and fact a similar judgment was rendered by the Court of Appeals in 61 Ohio Law Abs., 428, 104 N. E. [2d], 697, and an appeal therefrom was dismissed by the Supreme Court in 156 Ohio St., 452, 103 N. E. [2d], 273), proceedings were begun by the village of Gahanna to annex certain territory. The annexation ordinance was duly enacted on August 15, 1949, and on August 26, 1949, a freeholders’ petition was filed with the county commissioners seeking to annex the same territory to the city of Columbus. After the passage of the ordinance an election was held, which resulted in a majority vote in favor of annexation to the village of Gahanna. The Board of County Commissioners proceeded to act favorably upon the freeholders ’ petition to annex the territory to the city of Columbus, no election being required under this procedure. An action was then filed by certain residents of Gahanna seeking to enjoin a completion of the annexation to Columbus, claiming that under Section 709.17, Revised Code, the annexation proceedings had been stayed. The court held that under these facts annexation to Columbus was in accordance with law, refused to stay the proceedings, and denied the injunction. It should be noted that in that case a petition was never filed with the proper authorities by the village of Gahanna, the petitioners probably intending to file one after the election. It should also be noted that in that case the money expended in holding an election was a total loss. Had the petition been filed by the village of Gahanna prior to that of the freeholders, under the authorities cited, supra, then the village would have had priority and the action of the freeholders would have been enjoined. We do not think that it was the intention of the Legislature to make such results possible by requiring the petition to be filed after the election has been held. Once jurisdiction has been acquired by the proper annexation authorities, all other proceedings are stayed until after the required election, and this jurisdiction may be acquired only by the filing of a petition. It is, therefore, our conclusion that the petition should be filed prior to the election. Whether or not it may also be filed after the election is not before us so we express no opinion on that question.

In support of our conclusion it may be noted also that the statutes provide two methods for the initiation of annexation proceedings, one, on application by citizens, and the other on application by a municipal corporation. Section 709.02 et seq.; Section 709.13 et seq., Revised Code. In either case the application shall be by petition to the county commissioners, which shall contain a full description of the territory and be accompanied by an accurate map or plat thereof. In the case of application by citizens, the petition must be authorized “by a majority of the adult freeholders residing in such territory” (Section 709.02), and in the case of application by a municipal corporation “by a vote of not less than a majority of the members elected” (Section 709.14) to the council. In the former the petition “shall contain the name of a person authorized to act as the agent of the petitioners in securing such annexation,” and in the latter the council is required to direct “the solicitor of the municipal corporation” or some other person to prosecute the proceedings necessary to effect annexation. From these statutes it would seem that the only difference contemplated by the Legislature in the two types of proceedings is the method of authorization. Citizens must authorize the proceedings by a petition signed by a majority of the freeholders and the corporation may authorize the same by action of the council. It appears that no function is to be served by the enactment of the ordinance other than to authorize the initiation of proceedings for. annexation and to designate the person authorized to act as the agent of the corporation in prosecuting the proceedings. Although the headings in the Revised Code are not statutory, nevertheless it should be noted that the caption of Section 709.14, Revised Code, relating to the adoption of the ordinance describes the section as “preliminary action by legislative authority.”

Again, in comparing the two methods it can not be said that the mere preparation of a petition for annexation on application of citizens or its circulation and signature by a majority of the resident freeholders would be a commencement of the proceedings, the circulation and obtaining of signatures being merely the authorization to begin the same. The completion of the petition prior to its filing is the equivalent of the ordinance adopted by the municipal corporation, neither of which is a beginning of the annexation proceedings but merely an authorization for the same.

Counsel for the respondents urge that since the petition has been dismissed there is nothing pending before the board upon which it may act. This conclusion would be correct if the order of dismissal was in accordance with láw, but we do not so regard it, and it is, therefore, a void order leaving the petition pending before the board. The duty of the board upon completion of the hearing required by Section 707.06, Revised Code, is clearly defined by Section 707.07, which requires that the annexation be allowed if it finds certain enumerated facts to be true. Contra, if the required facts are found not to exist, then it would appear that such a finding should also be made. But the board has refused to act in accordance with the statute upon the ground that it has no jurisdiction. Section 2731.03, Revised Code, provides:

“The writ of mandamus may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion.”

The relator here is not seeking an order to control the discretion of the board but is merely seeking an order requiring it to exercise the discretion conferred upon it by Section 707.07, Revised Code. A writ of mandamus may issue to compel the exercise of a discretion. Commissioners v. Commissioners, 24 Ohio St., 393; State, ex rel., v. Harris, 17 Ohio St., 608; 25 Ohio Jurisprudence, 1139, Section 181. The petition alleges that the relator has no adequate remedy at law, which, for the purpose of this demurrer, has been admitted to be true; hence, we are of the opinion that it states a good cause of action. The demurrer is overruled.

Demurrer overruled.

Hornbeck and Wiseman, JJ., concur.


author:
Fess, J.
      Deeds, J.,

text:
    Ricelli et al., Appellants, v. Atkinson, Appellee.

      (No. 685
    Decided April 18, 1955.)

      Mr. John E. Savord, for appellants.

      Mr. George A. Beis, for appellee.
   Fess, J.

This is an appeal on questions of law by plaintiffs from a finding and judgment of the Common Pleas Court for the defendant. The petition seeks a declaratory judgment directing the defendant to permit plaintiffs to use a driveway over defendant’s property. A plat of the premises involved appears on page 177, post, and references herein to numbers and letters refer to the several parcels shown on such plat.

In 1902, the executors of Butts conveyed the south one-half of the west two-thirds of lot numbered 21 (parcel 1) to one Bookmyer “reserving therefrom a strip of land twelve (12) feet in width to be taken off the east end of the premises hereby conveyed [parcel A] to be used as a driveway or alley, in common with the occupants of the north half of the west two-thirds part of said lot number twenty-one” (parcel 2). On the same day the executors also conveyed to William F. Seitz, Jr., the north one-half of the west two-thirds part of lot 21 (parcel

2) and also a right of way over parcel A “to be used as a driveway or alley in common with the occupants” of parcel 1. In 1912, the executors conveyed to William F. Seitz, Jr.,

the west one-half of the east one-third of lot 21 (parcel 3) without reference to any driveway. In 1915, Seitz acquired title to the south thirty-three feet of lot 19 (parcel 4). Seitz, therefore, was the owner of record of parcel 2 (with easement over parcel A), parcel 3 and parcel 4.

On October 26, 1925, Seitz conveyed to a predecessor in title of plaintiffs parcel 4 and the north eleven feet of the east twelve feet of parcel 2 (parcel D), together with a right-of-way for driveway purposes over the east twelve feet of the west two-thirds of lot 21 (which includes parcels A, B, C and D) to be used in common with the owners of the west two-thirds of lot 21 (parcels 1 and 2), and of the west one-half of the east one-third of lot 21 (parcel 3) and the north one-half of said driveway (which included parcels B, C and D) to be used in common with the owners of parcel 2 and of parcel 3. This deed provided also that parcel D should be subject to a right-of-way for driveway purposes for the use and benefit of the owners of parcel 2 and parcel 3, and that none of the persons entitled to use such driveway should obstruct the same in any manner.

On October 27,1945, Seitz conveyed to the defendant parcel 3, and parcel B, together with a right-of-way for driveway purposes over the east 12 feet of the west two-thirds of lot 21 (which included parcels A, B, C and D), the south half (parcel A) to be used in common with the owners of parcel 4, and parcels 1 and 2, and the north one-half (parcels B, C and D)'to be used in common with the owners of parcel 4 and parcel 2. The deed provided further that parcel B should be subject to a right-of-way for the owners of parcels 4 and 2.

In 1929, the defendant acquired title to parcel A from the then owners of parcel 1.

In 1933, Seitz conveyed to Larry D. and Buena K. Snead parcel 2, excepting therefrom parcels D and B (which he had previously conveyed to the predecessor in title of plaintiff and to defendant Atkinson), together with a right-of-way for driveway purposes over the twelve-foot strip of parcels 1 and 2, the south half (parcel A) to be used in common with the owners of parcels 4, 1 and 3, and the north half (parcels B, C and D) to be used in common with the owners of parcels 4 and 3. The deed provided further that parcel D therein conveyed to the grantees should be subject to a right-of-way for the use of the owners of parcels 4 and 3.

In 1942, The Savings Building & Loan Company, which had acquired the premises set forth in the preceding paragraph (parcel 2), conveyed parcel 0 to the defendant, and in 1944, conveyed to Kramer parcel 2, excepting therefrom the easterly twelve feet (parcels B, C and D), and incorporated in such deed an agreement 'that the use of a right-of-way over the easterly twelve feet of parcels 1 and 2 be excepted and excluded from such conveyance and reciting that no right, title or interest in the twelve-foot strip (parcels A, B, C and D) was conveyed thereby.

As a result of the foregoing conveyance, the plaintiff is the owner of record of parcels 4 and D and the defendant is the owner of parcels 3, A, B and C.

The first question to be determined is the effect of the reservation of a driveway in the deed of parcel 1 to Bookmyer. Although a distinction is to be drawn between an exception and a reservation, the words are often employed indiscriminately. Manley v. Carl, 20 C. C., 161, 11 C. C., 1. But whether the language creates a reservation or an exception depends upon the intention of the parties as evinced by a construction of the whole instrument in the light of the circumstances of the case rather than upon the particular words used. See Gill v. Fletcher, 74 Ohio St., 295, 78 N. E., 433, 113 Am. St. Rep., 962, holding the reservation of one-half of the mineral rights created an exception. In Akron Cold Spring Co. v. Unknown Heirs of Ely, 18 Ohio App., 74, the court held a reservation coupled with retention of ownership to be an exception. But with respect to the retention of a right-of-way or easement, whether the language employed be the reservation of a right-of-way over the property conveyed or the exception of a right-of-way from the grant, the grantor retains only an easement over the premises conveyed.

A reservation or exception of the use of an alley has been held to be a reservation of an easement only. A provision in a deed excepting and reserving a roadway for the use and benefit of the grantor has been held to reserve an easement merely in the strip of land described as such, and a reservation of a portion of the land described in a deed to be used as an alley operates as a conveyance of the fee of the portion reserved, subject only to the easement declared. 2 Thompson on Real Property, 9, Section 460. Cf. Gibbons v. Ebding, 70 Ohio St., 298, 71 N. E., 720, 101 Am. St. Rep., 900. See, also, 1 Thompson on Real Property, 593, Section 367. Therefore, under the deed conveying parcel 1, the grantee obtained the fee in all the south one-half of the west two-thirds of lot numbered 21 subject to the easement over the east twelve (12) feet to be used “in common with the occupants of the north half of the west two-thirds part of said lot.” Since the executors of Butts did not retain the fee to the south half of the 12-foot strip, they could not thereafter convey any interest in and to such strip, except the use thereof for driveway purposes by subsequent grantees of the north half of the west two-thirds of lot 21.

The second question which arises is whether the owner of an easement appurtenant to the dominant estate may alienate his rights under such easement separate and apart from the conveyance of the dominant estate.

A reservation of an easement is not operative in favor of land not described in the conveyance. 28 Corpus Juris Secundum, 686, Section 30; Schnellbacher v. Jobst, 271 Ill., 319, Ill N. E., 138; Ross v. Valentine, 116 Ind. App., 354, 359, 63 N. E. (2d), 691, 695; Lennertz v. Yohn, 118 Ind. App., 443, 450, 79 N. E. (2d), 414, 417. “One having an easement by grant may assign that easement with the dominant estate, and the easement goes to every portion of the dominant estate assigned, however many the tenements may be, but it can go no further. No stranger to the estate may take it.” Methodist Protestant Church of Cincinnati v. Laws, 7 C. C., 211, 219, 4 C. D., 562, affirmed without opinion, 55 Ohio St., 662, 48 N. E., 1114. See, also, Cleve v. Nairin, 204 Ky., 342, 264 S. W., 741; Diocese of Trenton v. Toman, 74 N. J. Eq., 702, 70 A., 606; French v. Marstin, 24 N. H., 440, 57 Am. Dec., 294.

In Bass Lake Co. v. Hollenbeck, 11 C. C., 508, 518, 5 C. D., 242, it is said that the proposition is universally true, that if one acquires a right of way to one lot or parcel of land, he can not use it to gain access to that parcel and thence over his own land to other lands belonging to him. So far as he should use it for access to or accommodation to other parcels than the specific one to which it is so appurtenant, he would be a trespasser. But the court limits this statement by saying, “it is different in regard to a way to and from a highway,” and citing Goddard on Easements, 328. Since Goddard on Easements is not available to the writer of this opinion, the reason for the limitation with respect to a highway is not explained. However, it is not to be inferred from this limitation that the owner of the dominant estate may convey the right to use the easement over the servient estate, even to a highway, to the owner of other property adjacent, to the easement.

An easement is not alienable separately and apart from the land to which it is appurtenant. 3 Tiffany, Real Property (3d Ed.), 210, 213, 214, Section 761, citing McClintic-Marshall Co. v. Ford Motor Co., 254 Mich., 305, 236 N. W., 792, 77 A. L. R., 807.

The third question is whether the owner of the dominant estate may convey bits or small portions thereof, such as parcels B, C and D, in the instant case, and thereby eonfer on the owners of such parcels the right to use the right-of-way appurtenant to the dominant estate (parcel 2).

In Shields v. Titus, 46 Ohio St., 528, 22 N. E., 717, the Supreme Court said on page 539:

“ ‘Where an easement is secured to a dominant estate, and is designed to benefit the same in whosoever hands it may be, it will, as a general proposition, inure to the benefit of the owner of any part of the same into which it may be divided, provided the burden upon the servient estate intended to be created is not thereby enhanced.’ ”

And as indicated in the Methodist Church case, the owner of the abandoned cemetery could divide the same into lots and the several lot owners were entitled to use the roadway, subject, however, to the right of the owner of the servient estate to maintain a gate on the roadway.

Conceivably, Seitz as the owner of parcel 2 could divide the parcel into two or three lots, and the occupants thereof would be entitled to use the right-of-way. Or Seitz could construct a duplex or apartment building on parcel 2 and the occupants thereof could use the driveway. But the principle announced in the Shields v. Titus case and the Methodist Church case should not be employed to circumvent the rule that the owner of the dominant estate can not transfer to the owners of other property any right in the servient estate. It has been said that an appurtenant right-of-way is appurtenant to every foot of the dominant estate. 15 Ohio Jurisprudence, 109, 110, Section 82, citing Kneisel v. Krug, 8 Dec. Rep., 581, 9 W. L. B., 38; Jones Fertilizing Co. v. C., C., C. & St. L. Ry. Co., 7 N. P., 245, 2 O. D., 511. Whatever persuasion the Kneisel case might have, the language was employed incident to applying the doctrine of estoppel and is not to be construed as indicating that the owners of each foot of the dominant estate have the right to use all of a right-of-way appurtenant to the dominant estate. The Jones Fertilising Co. case does not support the text in 15 Ohio Jurisprudence, 109, 110, Section 82.

Furthermore, the rule that an easement appurtenant to land is appurtenant to every part into which the land is divided is limited by the grant as actually intended, the nature of the easement reserved, and the condition of the estate to which it is attached. Where the dominant tenement has been divided into so many parts that it would be unreasonable, each part of the dominant tenement will not have a right to an easement appurtenant thereto. 15 Ohio Jurisprudence, 110, Section 82; Methodist Protestant Church v. Laws, supra; Bass Lake Co. v. Hollenbeck, supra.

Plaintiffs’ right to the use of the driveway arises solely by reason of their ownership of parcel D. Whether, as the owners of parcel D, plaintiffs are entitled to the use of the driveway is also to be determined by the intention of the original parties gathered from the terms of the deed conveying parcel 1, taken in connection with the circumstances which surrounded the parties at the time of such conveyance. Considering these factors, it is unreasonable to conclude that the executors of Butts, in their conveyance of parcel 1 to Bookmyer, intended to reserve a right-of-way for the benefit of the owners of 11 x 12-foot parcels carved out of parcel 2.

It is therefore concluded that the judgment below for the defendant should be affirmed.

Judgment affirmed.

Conn, J., concurs.

Deeds, J.,

concurs in the judgment.

I concur in the judg-

ment affirming the judgment of the Court of Common Pleas for the reason that Seitz, being the dominant owner only and not the owner of the fee or servient estate to the east 12 feet of the “south one-half of the west two-thirds of lot number twenty-one (21) on Jackson Street in said city” could not transfer to the predecessors in title of the plaintiffs a right-of-way over that portion of lot number twenty-one.


author: Hornbeck, J.

text:
    Anderson, Appellant, v. The American Bankers Ins. Co. of Florida, Appellee.
    (No. 489
    Decided October 30, 1954.)

      Mr. William H. Thornburgh, for appellant.

      Messrs. Pickrel, Schaeffer & Ebeling, and Mr. William E. Selva, for appellee.
   Hornbeck, J.

This is an appeal on questions of law from a judgment for the defendant entered on a directed verdict in its behalf at the close of plaintiff’s case.

Two errors are assigned: (1) The rejection of testimony offered by plaintiff, and (2) the action of the court in sustaining a motion for a directed verdict.

The action was to recover property damages claimed to have resulted to plaintiff’s automobile by theft, plaintiff being the insured in a policy issued by defendant wherein it agreed to pay plaintiff “for loss of, or damage to, the automobile caused by theft, larceny, robbery, or pilferage. ’ ’

Plaintiff, in her brief, as to the first assignment of error, says:

“Pages 17-20 inclusive, of the record indicate first plaintiff’s attempt to show how the claim was .reported, when, by whom, and to whom. This was rejected as not being material to the issues of theft and damage. As shown, subsequently when the plaintiff attempted to explain the actions of herself and her son regarding the claim the court rejected her testimony regarding instructions given by an agent, employee or representative of the defendant, on the basis that the agency relationship had not been established.”

The record does not support the claim that plaintiff attempted to show how, when, by whom and to whom the claim was reported. Such may have been the intention of counsel, but the record does not disclose it.

We note that the statement of plaintiff that one Evans was the agent for defendant company was admitted without objection, and that a further statement of like effect was accepted over the objection of the defendant. The record shows that when an attempt was made to get into the record what Evans had said or reported, upon objection being made, counsel made the observation that it was not important and that he would not go into it. There was no proffer of evidence in respect to any of the questions which were not permitted to be answered which would inform the court as to any prejudice that could have resulted to the plaintiff by the rulings.

Inasmuch as this case may be tried again, we direct attention to the ruling of the court in certain instances. The record shows that the plaintiff was permitted to answer that a man hy the name of Evans was the agent for defendant insurance company. There was a motion to strike the answer as being a conclusion. The court overruled it. This should have been sustained. It may be that the agency of Evans can be shown under the provisions of the statute, Section 3905.01, Revised Code.

At the trial Donald Anderson was asked:

“Q. I would like you to give me your appraisal of your automobile on June 23 and the condition that it was in when you left it on the evening of June 23.”

On objection, the court refused to permit the question to be answered. That part of the question relating to the condition of the automobile when it was left on the evening of June 23 was material and important, and an answer should have been permitted because it would show the state of repair of the various mechanical parts, and afford a basis for valuation of the automobile immediately before it was stolen. It would have provided, in part, the basis for a hypothetical question as to the extent of the damages to the automobile.

On further questioning, Donald Anderson was asked:

“Q. Did anything further happen that day? A. Yes, two or. three fellows asked me if they could use my car but I told them ‘No.’ ”

Objection was sustained to the answer. It should have been permitted to remain in the record. It was probative of the fact that the car, during the time that it was away from the quarters of the witness, was away without his consent.

The first assignment of error is no't supported.

The second assignment is that the trial court erred in sustaining the defendant’s motion for a directed verdict at the close of plaintiff’s evidence.

There was sufficient testimony to permit an inference that the car was stolen. There is proof, uncontradicted at the time the verdict was directed, that the car was damaged by the removal of window glass. Low gear' and reverse gear were removed. There was a bad clicking noise in the rear, the back bumper and gravel guard were bent, and the trunk had a dent in it eight inches in diameter and one-half inch deep. The body had two or three “mean scratches” on it, the hood had a couple of notches in it, and the ignition housing was completely cut away. The car had been driven more than 100 miles from the time it was taken until it was returned in a period of not more than 12 hours.

It is evident that no car could suffer the damage heretofore stated and not be materially decreased in cash market value. The fact that it was purchased for $600 and an allowance of $800 was made on a trade-in on a convertible is not probative that it was worth $200 more after it was wrecked than before. Fair market value and trade-in value are not necessarily synonymous terms, and here there is proof that they were not synonymous.

Unfortunately, the plaintiff offered no testimony upon which the jury could make a proper determination of the actual money damage suffered. There is some question whether the repairs to the hood, after the car was returned to Tipp City, did not afford the basis for an allowance of compensatory damages to the plaintiff. However, this is uncertain. But there is no doubt that there was a question for the jury, upon the undisputed evidence of plaintiff’s witnesses, whether nominal damages should be awarded to the plaintiff.

If the testimony of plaintiff’s witnesses is to be accepted, there was a breach of contract on the part of the defendant resulting in damage, the amount of which, for want of proof, may not be determined. This situation as to nominal damages was made an issue for the jury, and it was prejudicially erroneous to direct a verdict as was done.

That such damages are proper in this case and should be allowed is established by many cases in Ohio. First National Bank of Barnesville v. Western Union Telegraph Co., 30 Ohio St., 555, 27 Am. Rep., 485; I. & R. Chambers v. Frazier, 29 Ohio St., 362; Hill v. Butler, 6 Ohio St., 207; and Quillet v. Johnson, 34 Ohio Opinions, 308, 71 N. E. (2d), 488.

The judgment is reversed and the cause remanded.

Judgment reversed.

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


author: Per Curiam.

text:
    North Market Assn., Inc., Appellee, v. Case et al., Appellants.
    (No. 5103
    Decided February 11, 1955.)

      Messrs. Coughlin, Ogier & Lloyd and Mr. Robert A. Ramsey, for appellee.

      Mrs. Helen Witherspoon, for appellants.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus. We have read the entire record and carefully considered all questions raised by appellants.

The trial court was required to pass on the credibility of the witnesses. Where there was a conflict, the trial judge had to resolve it. If the trial judge believed the testimony presented by the plaintiff there was support for the judgment.

With respect to the defendants ’ claim in the cross-petition, the trial court held that the promise of the plaintiff was unenforceable because of indefiniteness and uncertainty. The evidence shows that the money was to be paid to defendants “if and when funds are available.” Upon the whole record we are inclined to hold that the debt is not an absolute one. 12 American Jurisprudence, 856, Section 301. Assuming, without deciding, that the transaction was a loan as defendants contend, there was a total failure of proof that the condition of payment had been fulfilled, to wit, funds available. On this issue the defendants carried the burden of proof.

In 12 American Jurisprudence, 858, Section 303, the text is as follows:

“In a majority of the states in which the question has arisen and in Canada it is held that a promise to pay when the promisor ‘is able’ (or a term of the same purport) is a conditional, and not an absolute, promise to pay, and that the promisee is not entitled to recover on such a promise unless the promisor is able to pay the debt. The minority view is that a promise to pay when the promisor is able is an absolute, and not a conditional, promise; it amounts to a promise to pay within a reasonable time. ’ ’

We are disposed to follow and apply the majority rule. The promise being conditional, and the condition not being met, the cross-petition was properly dismissed.

We find no assignment of error well made.

Judgment affirmed.

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


author: Fess, J.

text:
    City of Toledo, Appellee, v. Miscikowski, Appellant.
    (No. 4819
    Decided January 31, 1955.)

      Mr. Louis R. Young and Mr. Nicholas J. Walinski, for appellee.

      Mr. Stanley J. Grzezinski, for appellant.
   Fess, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming a judgment of the Toeldo Municipal Court, convicting the defendant of driving while under the influence of intoxicating liquor.

The only error assigned is the claim that the defendant was tried and convicted under an unlawful affidavit. The affidavit setting forth the charge was executed by one of two arresting officers, who also signed below his own name the name of the other officer who participated in the arrest. It was sworn to by the affiant before a deputy clerk of the Municipal Court. Both the officer signing the name of his partner and the deputy clerk who took the oath are subject to reprimand for appending to the affidavit the name of a person who was not sworn. It appears from the record that such procedure is common practice in the Municipal Court, and, of course, it should be discontinued. If it be desirable to have the name of another arresting officer, who is not sworn, attached to the complaint, adequate space is provided on the reverse side thereof.

Section 14, Article I of the Constitution specifically provides that “no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.”

Section 2935.19, Revised Code (Section 13432-18, General Code), prescribes the form of affidavit pursuant to which a warrant for arrest may be issued. It contemplates that it shall not only be signed by the affiant but that his oath thereto shall be taken by an officer whose signature is also a requisite to the validity of the affidavit.

Inasmuch as, in the instant case, the affidavit was actually executed by one of the officers and was sufficient to apprise the defendant of the offense with which he was charged, the false signature of the other officer is surplusage, does not vitiate the affidavit, and is such an irregularity as is not prejudicial to the defendant. Cf. Section 2945.83, Revised Code.

The judgment of the Common Pleas Court is, therefore, affirmed and the cause remanded to the Municipal Court of Toledo for execution of sentence.

Judgment affirmed.

Conn and Deeds, JJ., concur.


author: Hildebrant, J. Ross, J.,

text:
    Schwarz, Appellant, v. The General Electric Realty Corp.; The General Electric Co., Appellee.
    (No. 7886
    Decided August 2, 1954.)

      Messrs. Lindhorst & Dreidame and Mr. John A. Wiethe, for appellant.

      Mr. Leo J. Brumleve, Jr., for appellee.
   Hildebrant, J.

The trial court directed a verdict for defendant at the close of all the evidence on authority of Wellman v. East Ohio Gas Co., 160 Ohio St., 103, 113 N. E. (2d), 629. In this appeal on questions of law from the judgment entered thereon, appellant states the basic question considered by the trial court was whether the case of Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, 62 N. E. (2d), 305, or the Wellman case applied.

Plaintiff was injured while on the extensive industrial premises of defendant in the capacity of an iron worker, employed by the Duffy Construction Corporation, an independent contractor with the defendant for the construction of several buildings thereon.

The northeast corner area of defendant’s acreage industrial premises is enclosed on the north and east by a high chain link fence, just inside of which along the east line, extending southwardly, and upon high poles, runs a three-wire high tension line, some 36 feet above the ground, supplying power for defendant’s industry.

Signs warning of the high tension line were placed on either side of the power substation, some distance away from the scene of the accident, but there were no signs on the poles at or near the site of unloading on April 2, 1952, although there is testimony in the record that similar signs had been originally so located.

On December 27, 1951, defendant, through its resident engineer, wrote the Duffy Construction Corporation, to the attention of T. F. Keller, its project manager on the job, the following letter:

“December 27, 1951
“Duffy Construction Corporation “Locldand, Ohio “Attention: Mr. T. F. Keller “Dear Mr. Keller:
“Please be advised that effective 5:00 p. m. on December 27 the 66 KV overhead line feeding the main substation north of Jimson Road is energized. Any interferences with this line by equipment must be avoided.
“Yours very truly,
“P. B. Unthank
"Resident Engineer."

. Keller testified that he passed the information along to the proper Duffy employees, four in number, by memorandum, including superintendent Benes and the master mechanic in charge of hoisting equipment for the Duffy Corporation. There is no claim that the high tension line was in any manner defectively constructed or maintained, or that it was in a defective condition on April 2,1952; and it is clear that the prompt warning against interference with the energized line by equipment applied to large equipment, such as a crane, which was capable of interference.

Plaintiff testified that he had not been on this particular northeast corner area of the premises upon which he was employed prior to the morning of April 2, 1952, and that he did not observe any part of the high tension line, either poles or wires at the time. This testimony is well nigh incredible, particularly in view of the testimony in the record of other Duffy employees that the hazard of working with heavy and large equipment such as a crane in proximity to high tension wires was common to the construction business of all concerns erecting buildings and structures on industrial premises, such as the Duffy Corporation was 'employed to do in this instance.

Defendant’s manufacturing spur railroad tracks enter the premises at the extreme northeast corner and follow a curving southwestwardly course into the premises.

On April 2, 1952, the Duffy Construction Corporation was engaged in unloading a gondola car of steel beams, 36 inches by 38.7 feet, by means of a crane with a 45 foot boom, with cable attached, swinging the beams from the car to the south and conveying them to the east for placement on timbered dunnage, directly under the high tension power line, previously prepared by the Duffy Construction Corporation.

Plaintiff was assisting two fellow workmen guide the beams into place on the dunnage when he was injured and they were killed by electric shock occasioned by the steel cables of the crane being swung in too close proximity to the high tension wires.

Defendant checked the progress of the construction' according to specifications through a resident engineer in the field in contact with the Duffy Corporation. It is clear from the record that the resident engineer designated the spot where the steel beams were to be unloaded, and that the Duffy Construction Corporation leveled off and prepared the site.

At the close of the work day on April 1, 1952, one Roberts, foreman, and Benes, superintendent, for the Duffy Corporation, had a conversation in the field office with the resident engineer in the presence of another Duffy employee, Sauer, during which the Daffy employees protested the selection of the unloading site as too dangerous, due to the proximity of the high tension line to the crane. The resident engineer refused to change the designation and the next morning the Duffy construction employees proceeded with the work, without any supervision or interference on the part of the defendant.

Upon this state of the record, was the trial court correct in directing a verdict on authority of the Wellman easel

The first paragraph of the syllabus in Bosjnak v. Superior Sheet Steel Go., supra, is:

“An employee of an independent contractor, while engaged in the erection of a building upon premises, the possession and control of which are retained by the owner, is an invitee to whom the owner owes the duty of exercising ordinary care to maintain the premises in a reasonably safe condition for use in a manner consistent with the invitation, and to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee.”

At page 542, it is stated:

“Concededly the plaintiff, at the time of his injury, was on the premises of the defendant as an employee of a contractor then engaged in the erection of a building for the defendant. He was, therefore, an invitee of the defendant who accordingly ■ owed him the duty ‘to exercise ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation.’
‘ ‘ The owner has the further duty of exercising reasonable care to inform the invitee of hazardous conditions of the premises and of activities thereon unknown by and not obvious to the invitee. Such duty, however, has reference only to the owner’s plant and premises, and not to the contractor’s equipment. 2 Shearman & Redfield on Negligence (Rev. Ed.), 688, Section 279; 38 American Jurisprudence, 754, Section 96; Prosser on Torts, 635; 29 Ohio Jurisprudence, 465, Section 61.”

At page 543, the court quotes from 2 Shearman & Redfield on Negligence (Rev. Ed.), 688, Section 279, which states the rule thus:

‘ ‘ ‘ The law requiring an owner to keep the place reasonably safe for a contractor and his subcontractors does not apply where the work itself is of an unsafe nature or the defects are due to the imperfect and negligent work of the contractor himself.’ ”

In Davis v. Charles Shutrump & Sons Co., 140 Ohio St., 89, 42 N. E. (2d), 663, the first paragraph of the syllabus is:

“Where the premises upon which constrtnction work is to be performed by a contractor remains under the control of the principal employer while the work is in the course of performance, a servant of the contractor is an invitee and as such entitled to recover from the principal employer for any injury which he may sustain by reason of abnormally dangerous condition of the premises, only if the principal employer has, and the servant has not, actual or constructive notice of the existence of such condition.”

Again, the following significant statement on the facts appears on page 545 of the court’s opinion in the Bosjnah case:

“There is evidence indicating that it was this change of condition inside the building which made subsequent operation of the crane outside the building necessary; that this necessity and the reason therefor were known by the defendant; and that the chief engineer of the defendant, who had supervision of all departments of the plant, was present and saw the truck crane when it started to back up toward the power line immediately preceding plaintiff’s injury. In this connection it should be observed that the premises of the defendant remained under its control, and that it actively participated in the operations incident to and in connection with the erection of its building. ’ ’ (Emphasis added.)

In an extensive annotation in 44 A. L. R., at page 982, under the heading: “Liability of contractee with respect to injuries resulting from the dangerous condition of his premises, ’ ’ Section 17, it is stated:

‘ ‘ The ratio decidendi in numerous cases is a doctrine which may be formulated thus: Where the premises on which the stipulated work is executed remain under the control of the principal employer while the contract is in course of performance, a servant of the contractor is in the position of an invitee, and as such entitled to recover for any injury which he may sustain by reason of the abnormally dangerous condition of the premises or plant thereon, if the evidence shows that the principal employer was, and the servant was not, chargeable with knowledge, actual or constructive, of the existence of that condition. ’ ’

The leading authority with regard to this doctrine in both England and the United States is stated to be Indemaur v. Dames (1866), L. R. 1 C. P., 274, 19 Eng. Rul. Cas., 64 (not involving an independent contractor). In the opinion, Willes, J., stated, at page 288:

“It was ably insisted for the defendant that he could only be bound to keep his place- of business in the same condition as other places of business of the like kind, according to the best known mode of construction. And this argument seems conclusive to prove that there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place could reasonably be, having regard to the. contrivances necessarily used in carrying on the business.”

In the annotation contained in 23 A. L. R., 1009, Section 11, pointing out the nondelegable quality of the duty of a person in possession of land or other fixed property to take reasonable care to keep the premises in such a state as not to unduly expose an invitee to danger, at page 1011, it is stated:

“The applicability of this doctrine is, of course, negatived, if the evidence shows either that the injured person had not been authorized by the employer to enter upon the premises in question, or that at the time of the accident the contractor was temporarily in possession of the premises as a whole, or of the particular portion of them upon which the injury was received, and that the dangerous conditions from which the injury resulted were attributable solely to his negligence.”

In 27 American Jurisprudence, 504,- Section 27, it is pointed out that the general rule of nonliability of an employer for the torts of an independent contractor or the latter’s servants, which Ohio recognizes, is based upon the incident of the relation created by contract, whereby the employer loses possession of the power of control over the work, so that it follows as a necessary judicial consequence that the employer is not answerable for the manner in which the work is performed. By way of analogy, we call attention to the statements in the syllabus and opinion of the Bosjnak case, together with those contained in the other citatious quoted, supra, which indicate that the basis of the duty attributed to the owner of the premises toward an invitee to protect and warn against the dangerous condition thereof is traceable to the retention of possession and control on the part of the owner.

In this connection, we call particular attention to the emphasized last sentence of the quotation from the Bosjnak case at page 545.

We recognize the nondelegable quality of the duty resting upon an owner of premises toward an invitee with respect to the condition thereof. For example, had some third person come upon the premises to repair the fence and, without precaution or warning on the part of the defendant, been injured by means of the high tension line, liability would attach. Or, if conceivably, plaintiff were injured by the existence of some sort of trap or hole at the working site, known to defendant, and about which plaintiff had neither actual nor constructive knowledge, the duty toward an invitee should be enforced.

In the instant case, however, plaintiff was upon the premises not only as an invitee of defendant, but in his additional capacity as employee of the Duffy Construction Corporation, which, on this particular morning, was in the exclusive possession and control of that extreme northeast corner of defendant’s property and assumed to perform work’ incident to its contractual status there; and it not only invited plaintiff to that area, but required him to be there and commanded and controlled him in the performance of his work. While defendant designated the unloading site, it was the Duffy Corporation which undertook the unloading, knowing and appreciating the existence of a real or potential danger in the operation of its crane in proximity to the high tension line during the unloading process, not otherwise subject to such a hazard.

By the very nature of the work of operating the crane within such proximity to the high tension line, the Duffy Corporation was aware of the potential danger of too close contact. As stated in the Wellman case at page 107 — in these circumstances it was the Duffy Corporation’s duty to warn and protect the plaintiff and no such duty devolved upon the defendant.

The first and second paragraphs of the syllabus in Wellman v. East Ohio Gas Co., supra, are:

“Where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor’s employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor.
“One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance.”

Since it is clear the Duffy Corporation knew and appreciated the danger surrounding the performance of its unloading-operation by means of a crane in close proximity to the high tension line, we believe the court was correct in basing its action on authority of the Wellman case.

Supporting this conclusion, we cite 57 Corpus Juris Secundum, 378, Section 606:

“However, except where the eontractee has assumed the duty of giving warning or otherwise affording protection, the foregoing is true only in respect of latent dangers of which the servant of the contractor or subcontractor did not know and could not reasonably have discovered and of which the contractees knew or should have known. The eontractee performs his duty by giving due notice or warning, and, except for hidden defects, he is not required to alter the premises to make them safe for employees of a contractor or subcontractor.”

In note 83 is cited Cleveland Electric Ill. Co. v. O’Connor, 50 Ohio App., 30, 197 N. E., 428, and the case of Valles v. Peoples-Pittsburgh Trust Co., 339 Pa., 33, 13 A. (2d), 19, which seems directly in point. Paragraph seven of the headnotes of that case is:

“Where contractor was informed that pipes near wall which he contracted to repair contained ammonia and subcontractor’s employees working near the pipes were injured when a pipe broke, building owner was not liable for the injuries resulting to subcontractor’s employees, since its duty was performed when it gave notice to contractor and it had no duty to foresee that contractor would not perform his duty to give warning to subcontractor and permit work to be done improperly.”

In Union Tank & Supply Co. v. Kelley (C. C. A. 5, 1948), 167 F. (2d), 811, it was held in the second paragraph of the headnotes:

“Independent contractor which had contracted to unload car of steel for defendant, rather than the defendant, had duty to warn employee of dangers of working with steel at night and to furnish him with adequate lighting, and hence where employee sued defendant for injuries, charging issues of failure to warn and to furnish adequate lighting was error.”

We find no error in the record, prejudicial to the appellant, and the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., concurs.

Ross, J.,

dissenting.

The trial court granted a motion of the defendant for an instructed verdict made at the conclusion of all the evidence. The effect of such a motion is a demurrer to the evidence. The plaintiff, when such motion is made by defendant, is entitled to the benefit of all the evidence in his favor, whether introduced by him or the defendant. He is entitled to all the favorable, fair and reasonable inferences justified by such evidence, and the trial court and this court may not sustain such instructed verdict unless reasonable minds could not differ as to the conclusions to be drawn therefrom.

In differing with the conclusion of the trial judge and the conclusions of my associates, I am conscious of the implications involved in the situation.

At the outset, I think it is proper to endeavor to establish the law as it exists in Ohio, particularly in view of the decisions of Bosjnak v. Superior Sheet Steel Co., 145 Ohio St., 538, 62 N. E. (2d), 305, and Wellman v. East Ohio Gas Co., 160 Ohio St., 103, 113 N. E. (2d), 629.

The earlier case would be almost a “blue bottle” case as far as the instant case is concerned, except for the fact that in the Bosjnak case there was no evidence that the contractor had been notified of the danger inherent in the charged wires. In this case, the contractor was so notified.

The Wellman case presents an entirely different situation than that involved here. In that case, the contractor was employed to work upon the very agency which caused injury.

If the contractor in the instant case had been employed to do something in connection with the poles or wires, such as moving the poles or adjusting contact with the charged wires, then the Wellman case would have applied. A reading of the syllabus and opinion in the Wellman case makes it clear that the rule of responsibility is changed where the employee-invitee is working upon the very instrumentality which causes his injury, but the owner is not relieved from responsibility where the destructive agency is not connected with the specific work allocated to the contractor. The employee-invitee must be presumed to assume all the risks incident to such specific employment when that employment involves dealing with the agency causing the injury.

It is clear, therefore, that, except under such circumstances, the owner owes a nondelegable duty to the invitee-employee of the contractor to warn him of latent dangers incident to his employment on the premises of the owner.

Now it appears from the evidence that the plaintiff had been working in and about the extensive premises of the owner for some time, and that during a portion of this period, the bare electric wires were not charged with electricity. The injury to plaintiff occurred on April 2, 1952. On the previous December 27, 1951, the contractor was notified by the owner that the wires had been energized. The evidence is that the contractor notified, by letter, the master mechanic in charge of the hoisting equipment of the contractor, a mechanical engineer, an electrical engineer, and a sub-contractor of the contractor. There is no evidence that the plaintiff had the slightest knowledge that the wires were energized with some 66,000 volts of electricity. In the majority opinion it is stated that “it is well nigh incredible” that the plaintiff did not observe the poles and wires. It certainly seems incredible that the plaintiff would take hold of a steel beam, attached by steel wires to the boom of a crane, moving toward bare wires which he knew carried 66,000 volts of electricity.

It appears from the evidence that the plaintiff on the morning of the day on which his injury was incurred, reported at a place somewhat distant from the scene of activity where the beams were to be unloaded from the gondola car by the contractor, that before repairing to such location, he was sent off to obtain some “spreaders” and spent some considerable time in securing them, that finally when he reported with them to the scene of activity, the work of swinging the beams from the ear had progressed, so that a beam was already to be swung out of the car, that he was told immediately to assist in swinging the beam to its place on the ground, and that he had little, if any, opportunity to observe the elements of danger present, even if he had known that the wires were energized. In any event, whether he was guilty of contributory negligence or had assumed the risk would be a question for the trier of fact.

Now it is also apparent, giving the plaintiff the benefit of disputed evidence, that the contractor, over the objection of his responsibile employees, had been definitely instructed by authorized agents of the owner to unload the beams in this area of latent danger, Here, again, is a situation presenting an issuable fact as to whether the owner did not assume full responsibility for the consequences of such instruction.

Again, it is in evidence that signs were posted some distance from the area of activity calling attention to the energized wires. Whether such signs were so placed as to constitute possible notice to the plaintiff is an issuable fact.

It is stated that the evidence shows that complete control over the area in which the plaintiff was acting had been given the contractor. Examination of the record will show that this also was an issuable fact, or that it constitutes an interpretation of evidence most unfavorable to the plaintiff.

To sustain the conclusion of the trial court, it is necessary to find as a matter of law that the defendant-owner had discharged its full duty to the plaintiff-invitee-employee of the contractor when the owner notified such contractor that the wires were energized, even though such information never reached the plaintiff-employee-invitee, or that the posted notices were, as a matter of law, sufficient notice to such employee, or that full and absolute control of the premises involved had been given the contractor. Even if such conclusions did not involve issuable facts, no authoritative Ohio case sustains the legal conclusions involved.

It is asserted also that the difficulty in giving notice to all the invitee-employees of an independent contractor should release the owner from such duty. It has never been held that difficulty in performance will relieve one responsible from the performance of a lawful duty. Certainly, a different situation would be involved in the instant case had the poles in the immediate vicinity of the area of the activity carried signs warning of the presence of bare wires carrying a high voltage current of electricity.

Decisions of courts of other states are in conflict upon these questions, although in each case the facts vary. Illustrative of this conflict are the following cases: The case of Valles v. Peoples-Pittsburgh Trust Co., 339 Pa., 33, 13 A. (2d), 19, sustains exclusion of liability of the owner where notice is given the contractor; the case of Le Vonas v. Acme Paper Board Co., 184 Md., 16, 20, 40 A. (2d), 43, is to the contrary.

To sustain such rule in Ohio, a modification of the unqualified rule stated in the case of Bosjnak v. Superior Sheet Steel Co., supra, will be required.

As stated before, the case of Wellman v. East Ohio Gas Co., supra, by reason of the facts and rule stated, does not constitute such modification. Until such modification of the rule in Bosjnak v. Superior Sheet Steel Co., supra, is announced by the Supreme Court, I consider that issuable facts in the instant case were presented requiring the intervention of the trier of facts. I consider the better rule to be that if the owner sees fit to use the independent contractor as his agent to notify the employee-invitees of latent dangers, and such agent fails in the performance of such duty, the owner may not escape responsibility for failure to perform a nondelegable duty.

I think the judgment should be reversed and the cause remanded to the trial court for new trial.


author: Conn, J.

text:
    Morrison, Appellee, v. Morrison et al., Appellants.
    (No. 4830
    Decided February 7, 1955.)

      Messrs. Shumaker. Loop & Kendrick, for appellee.

      Messrs. Ohlinger, Koles, Wolf & Flues, for appellants.
   Conn, J.

An appeal to this court-has been taken by Clyde W. Morrison, Alston E. Morrison and Osmond B. Morrison (referred to herein as defendants) on questions of law from a judgment entered in an action brought by plaintiff, Dessie' Morrison, in the Probate Court of Lucas County, Ohio, against these defendants and others, praying for a declaratory judgment.

The issues in the trial court, raised on the pleadings, evidence and stipulations, embrace principally the construction and true meaning of the written declaration of trust executed by Frank B. Morrison on August 31, 1943. The material facts are not disputed and are largely matters of record.

The subject matter of the trust consists of 100 shares of stock of The Metal Electric Processing Company, an Ohio corporation. The declaration of trust recites that Frank B. Morrison is the owner of the 100 shares, represented by certificate No. 49; that his son Clyde W. Morrison has worked diligently with his father in the management and operation of the corporation and owns 100 shares of stock in the corporation: that the 200 shares together constitute a major and controlling interest in the corporation; and that it was desired that such control at all times be vested in him or his said son or both.

Following the above recitals, the declaration provided that the 100 shares áre held by the settlor for the following trusts and uses, to wit:

“(a) During my lifetime to vote said shares at all meetings of the stockholders of said corporation;
“(b) During my lifetime to receive all dividends, income and profits, paid or accruing upon said stock.
“At my death the said one hundred (100) shares of stock shall be divided as follows: eighty (80%) percent or eighty (80) shares shall be the sole property of my said son, Clyde W. Morrison, and ten (10%) percent ór ten (10) shares shall be the sole property of my son Alston E. Morrison, and the remaining ten (10%) percent or ten (10) shares shall be the sole property of my son, Osmond B. Morrison, and my executor, administrator and personal representatives shall do everything necessary to vest the full legal title in and to said shares of stock to my three (3) sons, the same to become their sole and absolute property * * *.”

The declaration of trust also contained a provision giving Clyde W. Morrison an option to purchase the 20 shares of Alston E. Morrison and Osmond B. Morrison upon terms and conditions therein set forth, and that such shares “will become the sole and absolute property of Clyde W. Morrison.”

It is alleged in the amended petition of plaintiff that since February 7, 1950, it came to the knowledge of plaintiff for the first time that her husband, from January 2, 1942, until his death, had held title to and had the possession of the 100 shares of stock; that the shares came into the possession of Clyde W. Morrison in his capacity as executor of the will of the decedent; and that without the approval of this court and without the knowledge or acquiescence of plaintiff, a purported assignment was endorsed on the stock certificate, purporting to be executed by the executor of the estate.

Plaintiff avers further that the shares of stock are in fact assets of the estate; that plaintiff is entitled to her distributive share therein; that the declaration of trust was in fact testamentary and was revoked by the subsequent will of decedent; that the execution of the declaration of trust was a mere device and subterfuge to deprive plaintiff of her distributive share in the stock; that plaintiff was informed and advised by the executor and his attorney that at the time plaintiff signed her purported election to take under the will, decedent in his lifetime had transferred the stock; and that plaintiff, relying on such information and advice, filed no exceptions to the inventory and had signed the purported election to take under the will of decedent.

In the joint answer of defendants, they specifically denied that Frank B. Morrison had held the title to and possession of the stock in his individual capacity; and averred that decedent was a trustee of the stock under a written, irrevocable declaration of trust; that the defendants were the beneficial owners thereof in the proportions set forth in the declaration; that prior to February 7, 1950, the terms of the trust were fully disclosed to plaintiff; that plaintiff had full knowledge of the trust when she elected to take under the will of decedent; that the time for election expired on July 31, 1950; and that plaintiff is xxow conclusively bound uxxder her election to take under the will. The answer contains further a general denial. The affirmative allegations in the answer of defendants are denied in plaintiff’s reply.

Plaintiff px-ays that the 100 shares of stock be found and decreed to be assets of the estate; that no valid and enforcible trust of the stock was established by decedent in his lifetime; that the value thereof should be considered in computing plaintiff’s rights under the will; that plaintiff would have been entitled to a distributive share of the stock had she not elected to take under the will; and that plaintiff is entitled to the option to withdraw and revoke her election to take under the will of decedent.

At the opening of the trial, the parties stipulated as to cex-tain facts, to wit, that Frank B. Morrison died testate on October 20, 1949, leaving plaintiff as surviving spouse and three adult soxxs, the defendants herein, as his heirs at law; that his will was dated October 20, 1947, and a codicil thereto, June 17, 1949; that Clyde W. Morrison, as executor, filed an inventory of the assets of the estate; that no shares of stock of the company were listed therein; that no exceptions were filed thereto; that plaintiff signed a paper electing to take under the will of decedent on February 7, 1950; that Clyde W. Morrison is and has been president of such corporation since its organization ; and that Prank B. Morrison, the decedent, was vice-president and treasurer thereof from 1936 to the time of his death.

It was stipulated further that Nellie May Morrison (former wife of Prank B. Morrison) died in the year 1940; that on July 2, 1942, Prank B. Morrison married plaintiff and he and plaintiff lived together as husband and wife until his death; and that Frank B. Morrison received from the company compensation of $1,750 per month for the year 1948, and until May •1949, and lesser amounts until his death in October of that year.

In view of the admissions in the pleadings and the stipulations of the parties, the material issue centers on the purpose and intention of Prank B. Morrison in executing the declaration of trust, and its true construction in relation to the legal rights of plaintiff.

The trial court found for the plaintiff on the issues joined and held that the declaration of trust was null and void with respect to plaintiff and a fraud upon her rights; that it was the intention of Prank B. Morrison that the ownership, possession and control of the stock should pass to defendants upon his death, he having retained possession, custody and control of the certificate and shares of stock, with power to transfer and dispose of it, and use or consume the proceeds thereof; that the stock was an asset of decedent’s estate; that on the date the plaintiff consulted the court with respect to her election, the court had not been and was not fully informed concerning the facts and circumstances with respect to the alleged declaration of trust and could not and did not explain to plaintiff her rights under the will: that had the court known these facts and circumstances, it would have explained to plaintiff the advantages of taking under the law; and that the election to take under the will was .revoked and set aside, and plaintiff was given the option to take under the law or the will, not later than 30 days after the amended inventory and appraisal has been approved. Judgment was entered for plaintiff, from which defendants have appealed.

The defendants assign as errors of the trial court its finding and judgment that the declaration of trust is null and void and a fraud upon plaintiff’s rights; that the 100 shares of stock are assets of the estate; and that the court erred in revoking the election of plaintiff to take under the will.

We will consider first the alleged errors of the trial court in setting aside the declaration of trust. Plaintiff claims that pursuant to the terms of the trust the settlor did not transfer the title to the stock or deliver the physical possession of the certificate of stock for the 100 shares and, until his death, retained the possession and control thereof, with power to dispose of the stock. If this contention were supported by the record in this case, the right of plaintiff to a distributive share in the stock would not be affected. Moreover, the declaration of trust would be testamentary in character and, for this reason also, invalid.

Before making a survey of the evidence, we call attention to the rule that an owner of personal property may declare a present trust therein and, thereupon, hold the naked, legal title for specific purposes. Upon such declaration being made, the beneficial interest is separate from the legal title to the same extent as if the transfer had been made to a neutral trustee. The declaration of trust may be either written or oral, the only difference being in the manner and degree of proof. 40 Ohio Jurisprudence, 167, Section 34; 182, Section 40.

Plaintiff was not called as a witness. The record discloses no explanation of plaintiff’s failure to testify. Under these circumstances, an inference arises that if plaintiff had been called, her testimony would not have been wholly favorable in support of her claim.

The evidence is almost wholly free from conflict. The evidence shows that prior to November 9, 1936, all the authorized stock of the company, in the amount of 250 shares, was held by Clyde W. Morrison and his wife, Sarah E. Morrison; that on said date 26 shares of stock were transferred from Clyde W. Morrison to F. B. Morrison and 74 shares thereof were transferred from Clyde W. Morrison and Sarah B. Morrison to Nellie May Morrison, and certificates were issued accordingly; that Nellie May Morrison was the wife of Frank B. Morrison and the mother of Clyde W., Alston E., and Osmond B. Morrison, the defendants herein; that on May 6, 1940, Nellie May Morrison transferred her certificate of stock to “F. B. Morrison, Trustee,” by endorsement thereon, and on the same day a new certificate of stock was issued to “F. B. Morrison” for the 74 shares; that on January 2, 1942, the certificates for 26 shares and 74 shares were surrendered and were reissued as one certificate for 100 shares to “Frank B. Morrison, Trustee”; and it appears that such transfer was confirmed by an appropriate entry on the stockholders’ ledger.

The evidence tends to show that the designation "Trustee" may not have appeared on the certificates at the time of the reissuance of the stock, but was inserted later. In our opinion, this irregularity, if any, would not be material if upon the record it clearly appears that a trust in the 100 shares was irrevocably established.

It appears further from the evidence that the original shares of stock which had been issued to Frank B. Morrison and Nellie May Morrison in the aggregate amount of 100 shares were purchased with funds that came to Nellie May Morrison as an inheritance from her family; that, as a part of this transaction, the members of the family, during the lifetime of Nellie May Morrison, had several conferences relative to the investment in and purchase of this stock; that, as a result of such conferences, a family arrangement and understanding was had that the 100 shares of stock should be held by the father, Frank B. Morrison, in trust for the three sons, the defendants herein; and that this oral understanding among the members of the family constituted an oral trust which was consummated prior to the marriage of plaintiff and Frank B. Morrison.

The trial court erroneously sustained an objection to certain evidence offered in support of the oral trust. This evidence was competent as bearing on the intention of Frank B. Morrison at the time he executed the declaration of trust, and as an aid in the construction of that document. On the undisputed evidence, what the settlor intended to accomplish when he reduced his declaration to writing becomes crystal clear in the light of the oral understanding relative to the ownership of the 100 shares of stock.

On this point, we refer particularly to the testimony of counsel for Frank B. Morrison. He testified in effect that early in the year 1943, Mr. Morrison consulted him relative to the oral arrangement the family had as to the 100 shares of stock which he held in trust in certain proportions for his three sons. He was advised by counsel to put the oral agreement in writing. Thereupon, the written declaration of trust before us on this appeal was prepared in terms irrevocable, which counsel brought to the attention of his client who executed it in duplicate. One copy was placed in an envelope, properly endorsed, and given to counsel for safe-keeping. The other was turned over to Clyde W. Morrison and placed in his exclusive possession. The certificate of stock for the 100 shares was placed in the safe of the company, to which the officers of the corporation had access, including the president, Clyde W. Morrison. The certificate remained in the company’s safe until after the settlor’s death.

Upon the issuance of this stock to Frank B. Morrison, the trustee, in consummation of the oral agreement, it became both his legal and moral duty to carry into effect the trust agreement and to protect the equitable interests of the defendants in the 100 shares of stock. That duty arose on the basis of the oral trust, and the defendants had the legal right to have that duty observed and their rights safeguarded. The fact that the written declaration of trust, in conformity with the oral agreement, was executed subsequently to the marriage of plaintiff provides no basis for the claim of plaintiff that the written declaration was a device or subterfuge designed to deprive plaintiff of her right to a distributive share in the stock.

Under the terms of the trust, a present, proportionate, equitable interest passed to the defendants. The reservation of voting rights in favor of the trustee and his right to receive dividends on the stock during his lifetime, under the irrevocable terms of the trust, were consistent with the equitable title of the defendants and the validity of the declaration, of trust.

In the light of the undisputed fact situation presented, we approach the law and will comment briefly thereon.

In the first place, it is well settled that an owner of personal property may declare, that he holds such property in trust for another, and such declaration may be oral or in writing. 40 Ohio Jurisprudence, 141, Section 16, citing Bruer v. John son, 64 Ohio St., 7, 59 N. E., 741; Jones v. Luplow, 13 Ohio App., 428. See, also, Mark v. Mark, 145 Ohio St., 301, 61 N. E. (2d), 595, 160 A. L. R., 608; Neville v. Sawicki, 146 Ohio St., 539, 67 N. E. (2d), 323.

Furthermore, the declaration of trust in the instant case is not testamentary in character. The evidence is clear and convincing that the trust was irrevocable, and that under its terms a present, equitable interest passed to the three sons, the defendants herein.

40 Ohio Jurisprudence, 154, Section 24; 176, Section 37; Central Trust Co. v. Watt, 139 Ohio St., 50, 38 N. E. (2d), 185; Union Trust Co. v. Hawkins, Admr., 121 Ohio St., 159, 167 N. E., 389, 73 A. L. R., 190.

On the issue of the validity of the trust, both parties have cited the well-known case of Bolles v. Toledo Trust Co., Exr. 144 Ohio St., 195, 58 N. E. (2d), 381. The instant case is distinguishable on the facts from the Bolles case.

It is conceded that the trust in the Bolles case was revocable. The court held that while a husband may dispose of his personal property during his lifetime without the consent of his wife, he may not defeat her right to a distributive share in property which he owns and “of which he retains the right of disposition and control up to the time of his death.”

In the Bolles case, the court referred to the living trust as “revocable and amendable” and a trust wherein the settlor had reserved the right to amend or revoke the trust. As suggested above, it appears that the instant case is distinguishable, since the evidence discloses an irrevocable trust and one which created in favor of the settlor’s three sons a present, equitable interest in the 100 shares of stock.

The Bolles case was followed in Harris v. Harris, a Minor, 147 Ohio St., 437, 72 N. E. (2d), 378, where the court again had before it an amendable and revocable living trust, with a reservation of the income of the property to the settlor and where the settlor retained dominion and control over the trust property. It was held that the widow could assert her right to a distributive share in the trust estate.

However, plaintiff contends that the irrevocable character of the present trust is as to form only and not as to the substance. With this claim we are not in accord, as the evidence in the case before us is clear that the settlor did not reserve the right of “disposition and control” of the property which he held in trust.

It appears to be unnecessary to cite additional authorities. The equitable interest of the defendants in the property held in trust is clearly established, and, under the authorities cited, the trust is valid. It is our opinion that the judgment of the trial court setting aside the trust agreement and rendering it null and void, whereby plaintiff became entitled to a distributive share in the stock, is erroneous and contrary to law.

It should be noted that plaintiff was informed before her husband’s death that the 100 shares of stock were held in trust for the defendants. It also appears that counsel for the estate, at a meeting of interested parties, including plaintiff, following the death of plaintiff’s husband, read the will and the declaration of trust, and at that meeting counsel explained to plaintiff that the 100 shares of stock were not a part of the estate and would not be included in the inventory. Later, plaintiff was furnished with a copy of the declaration of trust, prior to the time she appeared in the Probate Court, for the purpose of making her election to take or not to take under the will.

Plaintiff’s election to take under the will was revoked and set aside by the trial court, and plaintiff was given an option to take either under the law or under the will, not later than 30 days after the approval of the amended inventory and appraisement.

Under Section 2107.43, Revised Code, the surviving spouse may appear in person before the probate judge or a deputy clerk who has been appointed to act as referee and make her election whether or not a citation is issued. This section provides further that when the election is made in person, the judge or referee shall explain the will, the rights under the will, and her rights under the law, in the event of a refusal to take under the will.

No evidence was introduced on the issue of revocation. No inference arises on the record that the election of the surviving spouse was had contrary to law. He who affirms must prove, and no evidence having been introduced in support of the finding and judgment of the trial court revoking such election, there is a failure of proof, and the judgment of revocation entered by the trial court is erroneous and prejudicial to defendants.

Without further extending this opinion, we conclude that the judgment of the Probate Court is contrary to law and should be reversed, and final judgment entered for defendants. The cause is remanded to the Probate Court for further proceedings.

Judgment reversed.

Fess, P. J., and Deeds, J., concur.


text:
    In re Estate of Schoenleben.
    (No. 728
    Decided March 22, 1955.)

      Mr. S. E. Mote, for appellants.

      Messrs. Marchal & Marshal, for appellees.
   Miller, P. J.

This cause comes to this court on appeal on questions of law from the Common Pleas Court of Darke County, Ohio, the matter having been heard de novo in the Common Pleas Court on appeal from the Probate Court of that county.

The issues in the ease were raised by the filing of applications in the Probate Court for extraordinary compensation for additional legal services rendered and for extraordinary services performed by the executor. The record discloses that the decedent, Louisa Schoenleben, died testate on February 28,1951, leaving her seven brothers and sisters devisees under her last will and testament; that on March 10, 1951, the will was admitted to probate and letters testamentary were issued to Clifford Thwaits as executor. Thereafter, the executor filed an inventory and appraisement showing a valuation of $7,663.80, which consisted of a small amount of personal property, a checking account, and real estate located in the city of Middle-town, Ohio, which was appraised at $6,800; on July 11, 1951, the executor filed an application to transfer the real estate to the brothers and sisters and a certificate was issued so transferring the same; and on August 8, 1951, without first having the real estate certificate cancelled or set aside, the executor sold the real estate in question, pursuant to the power contained in the will. When the title was checked, objection was made to its marketability by the attorney for the purchaser, due to the claimed cloud on the title by reason of the certificate of transfer that had been previously made transferring the real estate to the devisees under the will. The purchaser requested that the executor secure a quitclaim deed from the brothers and sisters, which the executor and his attorney refused to do, contending that the executor had full power to sell the real estate in order to pay debts and that the previously issued transfer was void and of no effect. After waiting a reasonable length of time, and the exchange of considerable correspondence between counsel, the purchaser demanded a return of the deposit he had made on the purchase price, which was refused. Thereupon, he instituted suit to recover the same, which resulted in considerable litigation, and it is for the additional services of defending such suit that practically all the additional compensation is sought. It appears that the devisees were willing at all times to execute the quitclaim deed, which was finally executed in order to terminate the litigation.

Conceding for the sake of argument that the appellants were technically correct in their contention, still there was a cloud on the title which warranted the purchaser in refusing to accept the same. "We are in agreement with the conclusion of both the trial court and the Probate Court that these additional services were not necessary and did not come within the purview of Section 2113.36, Revised Code, which provides for the allowance of additional compensation for extraordinary services. It appears to us that the reasonable course to have been followed would have been, (1) either execute the quitclaim deed as demanded, or, (2) have the certificate to the devisees set aside upon order of the Probate Court. Then there would have been no necessity for these additional services. We concur in the following comment made by the trial court in overruling the motion for a new trial:

■ “There are times in the practice of law when an attorney may be right as to the law but the cost of proving it far exceeds the practical way of disposing of the matter. This was such a case.”

This litigation was not only not necessary, but in fact was harmful to the estate in that it delayed the closing of the estate and caused it to become obligated for the payment of additional court costs.

We, therefore, conclude that the judgment is not against the manifest weight of the evidence, which epitomizes all the errors urged in the appellants’ brief.

There being no error in the record, the judgment is affirmed.

Judgment affirmed.

Hornbece and Wiseman, JJ., concur.


author: Fess, P. J.

text:
    Lagos et al., Appellants, v. Kahler; Bauer et al., Appellees.

      (Nos. 4785, 4786 and 4787
    Decided June 14, 1954.)

      Mr. Matt Kolb, for appellants.

      Messrs. Marshall, Melhorn, Bloch & Belt, Messrs. DiSalle, Green & Haddad and Mr. James D. Nestroff, for appellees.
   Fess, P. J.

These three appeals on questions of law, for convenience consolidated for hearing and determination, are from judgments of the Municipal Court of Toledo finding in favor of defendants Richard C. Bauer, a minor under the age of eighteen years, and Reva H. Balogh, who is joined as a party defendant as the signer of such minor’s application for a driver’s license. Judgment was entered on behalf of the plaintiffs in the several actions against one Lawrence Kahler, but no appeals are taken from such judgments.

The evidence discloses that the defendant Richard C. Bauer was driving a 1937 automobile at a speed of from 30 to 40 miles per hour in a northerly direction upon the highway and that as he passed the home of defendant Kahler, the latter threw a stone which struck the automobile. Defendant Bauer immediately applied his brakes and his car was deflected into the westerly half of the highway immediately in front of an automobile driven in a southerly direction by Adonna Lagos, the mother of the plaintiff Gregory Lagos and wife of the plaintiff George Lagos, resulting in a collision and subsequent damage and injury to the several plaintiffs.

An operator of a motor vehicle who has failed to comply with the safety statute regulating the operation of motor vehicles may excuse such failure and avoid the legal imputation of negligence arising therefrom by establishing that, without his fault and because of circumstances over which he had no control, compliance with the statute was rendered impossible. Satterthwaite v. Morgan, 141 Ohio St., 447, 48 N. E. (2d), 653.

In Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. (2d), 427, the Supreme Court held that it is the duty of the party failing to comply with the assured-clear-distance-ahead statute to offer proof excusing his failure to observe such legal standard of care; and if he fails to do so he is guilty of negligence as a matter of law. This latter principle is likewise applicable to the failure of the defendant to comply with the mandatory provisions of Section 6307-29, General Code (Section 4511.29, Revised Code).

In a situation where a party charged with the violation of a mandatory provision of the traffic code offers substantial proof tending to excuse his failure to comply with the statute, a question for the jury is presented for determination under proper instructions of the court. In the instant case, the trial court, without the intervention of a jury, determined the facts as well as the law and found for the defendant Bauer. In the opinion of this court, the defendant Bauer failed to establish by sufficient evidence that without his fault and because of circumstances over which he had no control compliance with the statute was rendered impossible.

The judgments are, therefore, reversed as against the manifest weight of the evidence, and the causes are remanded to the Municipal Court for new trial, with costs to abide final judgment. Since no appeals were taken from the judgments in favor of the several plaintiffs against the defendant Kahler, upon the appeals on questions of law taken by the plaintiffs from the judgments in favor of the codefendants, this court has no jurisdiction over the judgments against the defendant Kahler.

Judgments reversed and causes remanded.

Conn and Deeds, JJ., concur.