text:
    The State, ex rel. Boller, v. Pefely, Clerk.
    (No. 1886
    Decided April 24, 1946.)

      Mr. M. E. Norris, for relatrix.

      Mr. M. H. Heck, prosecuting attorney, and Mr. M. J. Gilbert, for respondent.
   Wiseman, J.

This is an action originating in this court, wherein Mabel Boller, relatrix, prays that a writ of mandamus issue against William A. Peffly, clerk of the Common Pleas Court, Montgomery county, Ohio, respondent, requiring him to pay to the relatrix $1,000 which she had furnished as a cash bond in the case of State v. Hauk.

The record in this case shows that Ralph Skilken, attorney for Idabelle Iiauk, posted a $1,000 cash bond in the criminal case herein referred to with respondent ; that no information was given to the clerk at the time the bond was posted that the money was furnished by the relatrix, Mabel Boiler; that the clerk, believing the money was furnished by Ralph Skilken, made an entry to that effect and gave a receipt to Ralph Skilken for $1,000 cash bond; and that the criminal action was later disposed of and on July 25, 1945, a judge of the Common Pleas Court signed the following entry:

“It appearing to the court that the defendant has been at liberty on bond, and further appearing that one thousand (1000) dollars cash bond, was furnished by Mabel Boiler, sister of the defendant, it further appearing that sentence has now been passed and said bond is no longer in effect. It is ordered that the Clerk of Courts of Montgomery county refund this sum to Mabel Boiler.”

The record further shows that the relatrix made repeated demands on the clerk of courts for payment of the sum of $1,000 which was refused on the ground that the records in the clerk’s office indicated that the bond had been posted in the name of Ralph Skilken and not in the name of Mabel Boiler. Thereupon a controversy arose between counsel for the relatrix, the respondent and Ralph Skilken, who conferred with a judge of the Common Pleas Court in an effort to settle the difficulty. On August 2, 1945, Ralph Skilken filed a motion to vacate and set aside the order made on July 25, 1945. This motion, which was submitted on brief, was overruled on October 6, 1945. However, in the meantime on August 28, 1945, Ralph Skilken began an action in the Municipal Court of Dayton against Mabel Boiler to recover an amount of money alleged to be due him for legal services and attached the fund in possession of the respondent. The petition in mandamus was filed in this court on November 29, 1945. There is no dispute relative to the ownership of this fund, it being conceded that the bond money deposited with the respondent was furnished by Mabel Boiler.

Under the facts in this case, is the relatrix entitled to the extraordinary remedy prayed for? Section 12283, General Code, provides:

“Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

Does the respondent owe a duty to the relatrix to pay to her $1,000 as he was ordered to do under the court order entered on July 25, 1945? It is well settled that mandamus lies to enforce the performance of a ministerial act or duty. The payment of the money by the clerk would be a ministerial act. Mandamus is a summary and extraordinary writ issued in the sound discretion of the court. However, before the court will issue the writ, the relatrix’s right to the relief sought must be clear. Plain dereliction of duty must be established against the respondent before the writ will be awarded. 25 Ohio Jurisprudence, 997, Section 23.

Does a clear legal duty rest upon this respondent to pay the $1,000 to the relatrix? We do not think so. We are not required to pass upon the merits of the action in the Municipal Court in which the attachment was issued; nor is this court required to determine whether the relatrix would have been entitled to a remedy had she filed her mandamus action prior to the date the fund was attached. The jurisdiction of the Municipal Court of Dayton to issue the order of attachment is not questioned. If the fund in the hands of the respondent was subject to attachment, such fund must be held under the order of attachment and respondent would be under no legal duty to pay the money over. An issue is raised as to whether the fund in the possession of tlie respondent at the time it was attached was in custodia legis. If the fund was in custodia legis this court would be required to hold that it was not subject to attachment. In that event, the order of the Municipal Court attaching the fund would have no legal effect and the clerk would owe a duty to pay the money to the relatrix under the order of the Common Pleas Court.

So long as this fund was held on deposit as a cash bond without a court order ordering it paid to the relatrix, the fund was in custodia legis. Did this fund cease to be in custodia legis after the Common Pleas Court issued its order under date of July 25, 1945, in which it found that “sentence has now been passed and said bond is no longer in effect * * * [and] ordered that the clerk of courts of Montgomery county, refund this sum to Mabel Boiler”?

In 6 Corpus Juris, 210, Section 391, the text is as follows:

“Where property has been taken by judicial process and is held by the court or its officers for a specific purpose, or until the termination of a suit, it is clear that its subsequent attachment would interfere with the jurisdiction and administration of justice of the former court, and it is, therefore, not' allowable. But after the fulfillment of the specific purpose for which the fund or property is held, the writ may he enforced against it, or any surplus remaining.” (Italics ours.) See cases cited.

In 7 Corpus Juris Secundum, 258, Section 88, the rule is stated as follows:

“As a general rule, property that is in custodia legis is not subject to attachment prior to fulfillment of the purpose for which it is held.”

On page 259 the text is as follows:

“After the fulfillment of the specific purpose for which the fund or property is held, the writ may be enforced against it, or any surplus remaining, unless the court otherwise directs.”

In 4 American Jurisprudence, 800, Section 393, the law applicable to this situation is stated as follows:

‘ ‘ The view is held by many courts that after the person who is entitled tó a fund has been ascertained, together with the amount to which he is entitled, and an order has been made for payment, the custodian then becomes the agent of such party and may thereafter be garnished, or the fund in his custody attached. There are, however, many decisions holding to the contrary. ’ ’

On page 802, Section 398 of the same work, this language is found:

“The determination of the right of the defendant in a deposit in the custody of an officer of the court generally makes the officer his debtor and the deposit attachable or garnishable by the plaintiff, at least where the court has ordered payment to him out of the deposit. ’ ’

In 13 L. R. A. (N. S.), 758, there appears a note in which this proposition of law is discussed. It is stated:

“In the absence of express statutory authority therefor, it is settled law that, in general, funds in custodia legis are not subject to either attachment or garnishment. It is asserted by many courts and text writers, however, that after the person ivho is entitled to a fund has been ascertained, together with the amount to which he is entitled, and an order has been made for payment, the custodian then becomes the agent of such party, and may thereafter be garnished, or the fund in his custody attached.” (Italics ours.)

The courts have generally held that, after the purpose for which the fund has been held has been fulfilled and an order has been made determining who is entitled to the fund and ordering payment thereof, the fund ceases to be in custodia legis. Thereafter the officer holding the fund holds it as debtor of the person to whom it is payable. The purposes of the law having been fulfilled, the officer thereafter is liable to the owner of the fund.

We find no reported case in Ohio in which this precise question has been decided. .However, there is a line of authorities touching on situations similar to the one presented in this case. The right to attach funds in the hands of an administrator or an executor, although not public officials, bears a close analogy to the right to attach funds in the hands of the respondent. The leading case in Ohio on this question is Orlopp v. Schueller, 72 Ohio St., 41, 73 N. E., 1012, 106 Am. St. Rep., 583, in which it was held:

“Property or money held by the executor or administrator of an estate in his representative capacity, cannot be reached by attachment or garnishee process in an action against the heir or legatee before an order of distribution has been made.” (Italics ours.)

And the court on page 58 said:

“So long as the estate remains unsettled, or at least until order of distribution is made, the property held by an executor or administrator as such, is in the custody of the law and does not vest in, or become the property of the heir or legatee. Until such time the executor or administrator is not the debtor of the heir or legatee, nor is it certain that he is the custodian of any property belonging to him. ’ ’

Taking up the cases chronologically, we next consider the case of National Radiator Co. v. Hobday, 17 C. C. (N. S.), 489, 32 C. D., 244, in which it was held:

“An assignee or trustee in insolvency may be garnisheed by a creditor of a distributee of the insolvent estate, after order of distribution is made.” (Italics ours.) The court approved and followed the case of Orlopp v. Schueller, supra.

In Remelin v. Butterworth, 20 Ohio App., 356, 152 N. E., 193, it was held:

“Funds held by clerk of Court of Common Pleas on interpleader cannot be garnisheed by creditor of claimant to such funds prior to judgment finding such claimant entitled to them in view of Section 11829, General Code.”

And, on page 360, the court said:

“Under the facts of this case, as shown by the answer of the garnishee clerk, as well as by the record at the time the attachment was levied and process of garnishment issued, Margaret Hall Remelin had no interest in this fund. The clerk was in no wise her debtor. The court had not, at that time, determined to whom the fwid belonged. The clerk was not at that time custodian of any property belonging to Margaret Hall Remelin.” (Italics ours.)

. In City Loan & Savings Co. v. Guthridge, 61 Ohio App., 202, 22 N. E. (2d), 573 (Judge Hornbeck, Second Appellate District), it was held:

“Money in the hands of an executor, ready to be distributed to a legatee, is 'money due’ the legatee within the meaning of that term as used in Section 11738, General Code, and not exempt from garnishment based on a judgment against such legatee. ’ ’ The court discussed with approval the case of Orlopp v. Schueller, supra, and on page 206 said:

“This opinion and others are grounded upon the proposition that until there is an order of distribution the funds of the estate are as though in custodia legis; that it can not be determined until then that prior claims will not take precedence over a bequest of money.” (Italics ours.) The court, on page 207, quoted from a note which is found in 59 A. L. R., 766, as follows:

“But, after settlement and a decree of distribution, garnishment would lie, because then the representative ceased to hold as an officer of the law and in his representative capacity, and became a personal debtor of the persons entitled to payment of a debt, or to a legacy or distributive share.”

In Pierce v. Fortner, 64 Ohio App., 544, 29 N. E. (2d), 165, it was held:

“Funds paid into court in a condemnation proceeding and -held by the clerk of courts pending further order of the court as to their distribution to the owner of the property are in custodia legis and not subject to a creditor’s bill, attachment or garnishment proceedings by creditors of such owner.”

In that case the court held generally that since no order of distribution had been made in favor of the judgment debtor in the attachment suit, the fund still remained in custodia legis.

In Caton v. Kohler, 69 Ohio App., 455, 44 N. E. (2d), 138, it was held:

“After debts of an estate are paid and an order of distribution has been made of money remaining in the hands of the administrator from the sale of real estate in the estate, such proceeds constitute money due from a person within the meaning of Section 11738, General Code, relating to exemptions, and are not exempt from garnishment prosecuted by a judgment creditor of an heir.”

Whether the officer who holds a fund is a public official or an administrator or executor acting under authority of the court, the same fundamental principle has been applied in determining at what time the fund ceases to be in custodia legis. In all of the cases cited, the underlying determinative factor on which the decision rested was whether an order of distribution had been made, or whether the court had determined who was entitled to the fund and had ordered payment thereof.

Applying the fundamental legal principle recognized in the Ohio case law, this court holds that when the Common Pleas Court, on July 25,1945, fotmd the cash deposit to be the money of this relatrix and ordered it refunded to her, this fund ceased to be in custodia legis and was subject to attachment. After the court order was made, the respondent no longer held the fund' to serve the purposes of the law, but as agent for Mabel Boiler, the relatrix, and became her debtor. The attachment having been made before this action was instituted, the respondent was amenable to the provisions of Section 11829, General Code, which provides as follows :■

“The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officer having in his possession any money, claim, or other property of the defendant, or in which the defendant has an interest, shall bind it from the time of service, and be a legal excuse to such officers, to the extent of the demand of the plaintiff, for not paying such money or delivering such claim or property to the defendant, as by law, or the terms of the process in his hands, he would otherwise be bounxbto do.”

Under the provisions of that section, the respondent is required to hold the fund under the writ of attachment until the writ is released by a court of competent jurisdiction. The service of the writ of attachment became a legal excuse under the provisions of Section 11829, General Code, for the nonpayment of the money to the relatrix.

The writ of mandamus is denied.

Writ denied.

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


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Kittel, Appellee, v. City of Cincinnati et al., Appellants.
    (No. 6645
    Decided May 20, 1946.)

      Mr. Sol Goodman and Mr. Hyman B. Rosen, for appellee.

      Mr. John D. Ellis, city solicitor, and Mr. Ed: F. Alexander, for appellants.
   Matthews, J.

This is an action to enjoin the city of Cincinnati and its officers from proceeding under two ordinances to purchase the Price Hill inclined plane and from issuing bonds therefor, or, after acquiring it, from entering into the contract, authorized by one of the ordinances, for its operation by the Cincinnati Street Railway Company.

The appeal to this court is on questions of law and fact. It is submitted to this court upon the pleadings, the two ordinances relating to the purchase and operation of the Price Hill inclined plane, and the ordinance of 1940 of the city of Cincinnati, granting a franchise for .25 years to the Cincinnati Street Railway Company for the operation of a system of street railways on and over certain streets.

The Price Hill inclined plane was built more than 60 years ago. It extended from a point in West Eighth street to a point at the brow of Price Hill, the difference in the levels of the two termini being in excess of 300 feet. It was built and is owned now by the Price Hill Inclined Plane Railroad Company, a corporation that operated it continuously as a common carrier from the time of construction until the year 1943. At that time, the inclined plane was declared unsafe for- úse without extensive repairs and replacements. The Price Hill Inclined Plane Railroad Company, faced with the' alternative of expending the money necessary for the making of the repairs and replacements or discontinuing operation of the inclined plane, chose the latter course, and since that date the property has been out of use.

The reason for the failure of the Price Hill Inclined Plane Railroad Company to make the additional investment does not expressly appear, but, of course, it is inferable that it regarded the enterprise as not attractive from the viewpoint of profit. It could not have been because the inclined plane could not be operated as an independent undertaking. It had been so conducted for many years during which the same circumstances existed as prevailed at the time the service was discontinued.

In response to demand for service by those who had been accustomed to avail themselves of this utility, the city proceeded to study the problem.

In the franchise of the Cincinnati Street Railway Company, the city of Cincinnati is given continuing power to require extensions of existing routes and to create new and, additional routes and require the operation thereof by the Cincinnati Street Railway Company, but this power is not unlimited and any order made by the city in that regard probably would be subject to appeal to arbitrators, as is provided in the franchise ordinance.

If the Cincinnati Street Railway Company should be required to furnish this service under its franchise, the utility would become its property and not that of the city of Cincinnati, and the street railway company would operate it under the terms of the franchise, as an integral part of the company’s system. Whatever the reason, the city chose another method of providing this public service. It determined to buy and reconstruct the Price Hill inclined plane. Apparently, it negotiated with the owners and reached an agreement on the purchase price.

On May 31, 1945, the council of the city of Cincinnati passed an ordinance authorizing the issuance and sale of bonds in the sum of $75,000 “for the purpose of providing a fund to acquire and reconstruct the Price Hill inclined plane for the transportation of passengers.”

While the relief prayed for in the petition includes an injunction against anything being done under that ordinance, this position seems to have been abandoned by the plaintiff. In any event, it is clear that the purposes for which these bonds are to be used are clearly within the municipal power as conferred by Section 4 of Article XVIII of the Ohio Constitution, which provides that “any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service.” Of course, this power must be exercised within the limitations imposed by other constitutional provisions.

By the express terms of the ordinance, the purpose of acquiring and reconstructing the Price Hill inclined plane was to utilize it as a means of transporting passengers. "Standing alone, such purpose would seem to be unassailable as the exercise of power conferred by the Constitution.

But the municipal council passed another ordinance on the same day, providing for the operation of this inclined plane by the Cincinnati Street Railway Company, and it is contended that this shows that, while the bond ordinance ostensibly provides for the expending of the money to acquire a public utility, the actual purpose is to extend credit, raise money, or enter into a virtual partnership with the Cincinnati Street Railway Company, a private corporation, contrary to Section 6 of Article VIII of the Ohio Constitution, prohibiting the passing of any law “authorizing any * * * city * * * to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or to loan its credit to, or in aid of, any such company, corporation, or association.”

This contention requires an analysis of this second ordinance. This is what it does:

(1) It grants to the Cincinnati Street Railway Company the right to operate the Price Hill inclined plane from the time the city acquires and rehabilitates it to November 1, 1965, upon certain terms and conditions. (2) It obligates the Cincinnati Street Railway Company to operate and maintain the inclined plane as a part of the company’s transportation system, and defines maintenance as including renewals and replacements and keeping the property in safe and efficient operating condition. (3) It requires the Cincinnati Street Railway Company to pay to the city of Cincinnati the sum of $3,000 “as its agreed portion of the cost of the repair of the inclined plane,” immediately upon acquisition, “and an additional $7,500-before entering upon the operation thereof; and in addition thereto shall pay all expenses of operation, maintenance and replacements and shall pay any tax which may lawfully be levied against said property o.r its operations, and insurance costs; and shall hold the city free and harmless from any liability arising out of the operations thereof.” (4) All of the appropriate terms of the ordinance under which the Cincinnati Street Railway Company operated its street railway system were made applicable. (5) The fare was fixed at 5 cents with transportation at 12% cents to the general street railway system.

Now does this ordinance provide for supplying money and extending credit, or otherwise violate Section 6 of Article VIII of the Constitution? Is it a “grant-in-aid” to the Cincinnati Street Railway Company?

In reading this ordinance and the bond ordinance either together or separately, it is impossible to find any express provision that imposes any obligation upon the city of Cincinnati in favor of the Cincinnati Street Railway Company. The only expenditure of money provided for is for the purchase and improvement of property, the title to which was to rest exclusively in the city of Cincinnati. The .ordinance contemplates that the city will grant a right to operate its inclined plane for a term after it becomes the owner. It does not even bind itself to buy or rehabilitate the inclined plane. The grant does not begin until purchase and recondition. As the analysis shows, all the obligations are on the Cincinnati Street Railway Company and not on the city. It is the ‘Cincinnati Street Railway Company that becomes bound to contribute $10,500 to the repair of the property (Price Hill inclined plane) of the city of Cincinnati. It is true that the Price Hill inclined plane would then be operated by the Cincinnati Street Railway Company, without payment of any additional rent, but it would assume obligations that would involve expenditures of money and there is no evidence that the operation would be profitable or otherwise to it. The fact that the city of Cincinnati e-xpends $75,000 to secure transportation service to and from a certain locality for 20 years is no evidence that it was contributing that money to the use of any corporation furnishing the service, or that the expenditure was improvident. Of course, in this instance for its expenditure it will secure title to the inclined plane in addition to the service for 20 years. A fair appraisal of the facts leads to the conclusion that this is a municipal enterprise, and not a private business venture to which the city contributes its money or credit in any way.

Many cases are found in which the courts have had occasion to determine whether Section 6 of Article VIII had been violated. Some have held that a proposed plan was prohibited by it and that others were not. In each of those cases the decision turned upon the finding of the court as to the facts. In Walker v. City of Cincinnati, 21 Ohio St., 14, 8 Am. Rep., 24, the court sustained the plan to build the Cincinnati Southern Railway and then lease it to an operating company. It was held that that was not a violation of Section 6 of Article VIII, Ohio Constitution, and while the soundness of the decision has been questioned in other respects, it has been consistently approved and followed on that point. There is no substantial difference in the factual situation presented in that case and in the case at bar.

In Taylor v. Commrs. of Ross County, 23 Ohio St., 22, the court held that a plan whereby Ross county sought to encourage the building of railroads violated Section 6 of Article VIII, Ohio Constitution. The plan in effect provided that the county would start the construction, which would be completed by private persons or corporations by whom the road would be owned when completed. The plan would have resulted in a pure donation. This was the view of the court as shown by its remarks on pages 82 and 83 of the opim ion in that case, where it was said:

“The transaction which the statute authorizes, begins with a railroad projected in the name of one of the localities mentioned, to be built in part by taxation, and ends with a debt on the locality for its construction, and, if anything useful has been accomplished, with the road being substantially owned by a railroad company, to be operated or not, or disposed of as such company may find most for its interest.

‘ ‘ This is accomplishing by indirection what it would be a plain violation of an express provision of the Constitution to do directly.

“Where public credit or money is furnished, to be used in part construction of a work, which, under the statute authorizing its construction, must be completed, if completed at all, by other parties out of their own means, who are to own or have the beneficial control and management of the work when completed, the public money or credit thus used, can only be regarded, within the meaning of the constitutional provision in question, as furnished for, or in aid of such parties.”

No such result can take place under the ordinances here under consideration. Cincinnati will own the Price Hill inclined plane outright at all times, and at the end of 20 years the grant of the right to operate will have expired and Cincinnati may do with it as it pleases. And during the 20 years passengers will have been carried for the stipulated fare and without other cost to the municipality.

A similar defect existed in the plan under consideration in Wyscaver v. Atkinson, 37 Ohio St., 80. A township was authorized to expend $20,000 in the building of a railroad, with the proviso that if the sum was found to be too small the railroad could be mortgaged to raise the money for its completion and provision w-as made for foreclosure of the mortgage. That and the fact that the township had no power to operate the railroad and the fact that $20,000 would be insufficient to even iron the tracks, to say nothing of the expense of the right of way, the grading, the tying or the equipment, led the court to conclude, as a matter of fact, that it was the intent to donate $20,000, and that through the device of a foreclosure of the mortgage, or in some other way, the entire title would inevitably pass into other hands as contemplated at the time. If such was the fact, it would clearly violate Section 6 of Article VIII, Ohio Constitution.

That the case of Alter v. City of Cincinnati, 56 Ohio St., 47, 46 N. E., 69, 35 L. R. A., 737, bears no analogy to the case before us is shown by what the court in that case said at pages 66 and 67:

“The case is not like a city leasing a building or waterworks plant owned by another, 'because in such case the leased property, would stand upon its own merits, and would not, before or after the lease, become merged into the other property of the city so that the whole would become one property, and make the property of the city dependent upon the leased property for its value and utility. ’ ’

The- quotation is an accurate general description of the facts presented in this case. Whether the municipality is lessee or lessor can make no difference in this respect. The court approved of such an arrangement as not in violation of Section 6 of Article VIII, Ohio Constitution.

The plan for granting to the Cincinnati Street Railway Company the right to operate a subway in connection with its existing street car system was held in State, ex rel. Campbell, v. Cincinnati Street Ry. Co., 97 Ohio St., 283, 119 N. E., 735, to-violate Section 6, Article VIII, Ohio- Constitution, because of a provision that the gross proceeds from the operation of both properties should be uséd for the payment of existing and thereafter issued securities of the company. And our understanding of the facts is that the gross proceeds from the properties for all time were pledged to the payment of existing and thereafter issued securir ties, and that the city of Cincinnati could not resume control and operation of the subway free of the obligation to. apply the gross proceeds to the payment of the incurred indebtedness. That the court in that case had no intention of denouncing such an arrangement as here involved is shown by the remarks of the court at page 305:

‘ ‘ So that we have here this situation:

“(a) The companies have and own a system of street railways already equipped and in operation.

“ (b) Tbo city proposes to construct and own a subway with all of tbe appurtenant properties described in tbe ordinance.

“(c) Tbe city desires to contract for the operation of the subway to be owned by it so that the ‘product of service’ of the public utility may be ‘suppliedto the fnunicipality and its inhabitants. ’

“This, the city is expressly empowered to do.”

In City of Cincinnati v. Harth, 101 Ohio St., 344, 128 N. E., 263, 13 A. L. R., 308, we have a case in which the municipality was about to expend public money to renew, replace, repair or reconstruct the rails, ties, roadbed or tracks of a street railway company. Upon completion the title to this property would belong to the street railway company. The fact that the municipality provided a'special assessment to reimburse itself only made clearer that it was a lending of its credits. At page 349, in that case, the court said:

“When the city issues and sells its bonds and uses the money of the taxpayers for renewing, replacing and reconstructing- the rails, ties, roadbeds and tracks in the street, all of this new construction and new property belongs to the company, to be used and dealt with in every way that it can use and deal with any of its property. The only way provided by which the city is to be reimbursed is by assessing against the company the cost of the things it gives to and does for the company, in addition to the declaration.of the statute that the amount of the cost shall be a lien on the property of the company. That is to say, it is a simple, plain loan by the city to the company of the amount of money needed for the purpose. The company becomes indebted to the city for the money the city has spent on the company’s property. The company gets the property at once. It may borrow on it or sell it. The city has loaned its money and its credit to the company. It is the very thing that the Constitution prohibits.”

We have considered other cases involving Section 6 of Article VIII, Ohio Constitution (Ohio Traction Co. v. Huwe, 127 Ohio St., 444, 189 N. E., 1; Village of Brewster v. Hill, 128 Ohio St., 343, 190 N. E., 766; City of Newark v. Fromholz, 102 Ohio St., 81, 130 N. E., 561) and find nothing in them contrary to the interpretation made in the cases which we have discussed. Perhaps, however, we should say something about Village of Brewster v. Hill, supra. There the village owned a small electrical distribution system and needed an electric generator. It arranged with a manufacturer to provide such for $24,960 of which $5,000 was payable in cash and the balance in 60 monthly instalments from the revenue of the system. The village was to furnish the foundation and the building for the generator and all needed common labor. The title of the generator was to remain in the vendor until paid for. The court held that this was a loaning of the credit of the village. We need not consider whether such case harmonizes with the other cases interpreting Section 6 of Article VIII, Ohio Constitution. It is sufficient to say that there is no such commingling of property in this case. The Price Hill inclined plane will be a separate unit at all times, capable of performing the public service for which it was intended. The city will receive the $10,500 contribution for its repair and the revenue derived by the Cincinnati Street Railway Company will be its sole property. In the Brewster case both the village and the manufacturer had an interest — a part title — in the generator. They were co-owners of specific property as conditional vendor and vendee. As such the village would have exposed its investment in the generator to all the hazards incident to enforcing the relative rights of conditional vendors and vendees and their respective creditors. See Farmerville v. Commercial Credit Co., 173 La., 43, 136 So., 82, 76 A. L. R., 686, and annotation at 76 A. L. R., 695. There is no such co-ownership in this case, and the title of the municipality to the Price Hill inclined plane is in no way exposed to vicissitudes of the business of the Cincinnati Street .Railway Company. We find no raising of money for, lending of credit, co-ownership or copartnership in this proposal. McGuire v. City of Cincinnati, 35 Ohio Law Abs., 423, 40 N. E. (2d), 435, is cited in support of the plaintiff’s contention. In that case, this court sustained an arrangement whereby the operation of . the zoological garden owned by Cincinnati was confided to a zoological society, a nonprofit corporation. We did so largely on the authority of Walker v. City of Cincinnati, supra, which sustained legislation authorizing the building of the Cincinnati Southern Railway and the leasing of it to a corporation organized for profit. We find nothing in McGuire v. City of Cincinnati, supra, inconsistent with our holding in this case — just the contrary.

Entertaining these views, we conclude that the plaintiff has failed to prove a right to an-injunction, and a decree may be presented finding, on the issues joined/ in favor of the defendants, appellants herein, and dismissing the plaintiff’s action,

Decree accordingly.

Hildebrant, P. J., Matthews and Ross, JJ., eoncur in the syllabus, opinion and decree.


author: Sherick, P. J.

text:
    Niederlehner, Gdn., Appellant, v. Weatherly, Chief, et al., Appellants, Schaub, Appellee.
    (No. 6565
    Decided January 25, 1946.)

      Mr. Arthur C. Fricke and Mr. Chester B. Shook, for appellant Ruth Niederlehner, guardian.

      Mr. Alfred C. Klein and Mr. George Metzger, for appellant Señora Wilson.

      Mr. Clark Wilby and Mr. Mitchell Wilby, for appellant Mary Peels.

      Mr. Nathan Solinger, city solicitor, for appellant Eugene T. Weatherly.

      Mr. Lorenz L. Lemper, for appellee Charles Schaub.
   Sherick, P. J.

This is an appeal on questions of law from the judgment entered on a second trial of this cause, an action in replevin, which has, since May of 1940, intrigued the bench and bar of this state. It is now the third appearance of the cause in this court. Report of the first appeal is found-in Niederlehner, Gdn., v. Weatherly, Chief of Police, 73 Ohio App., 33, 54 N. E. (2d), 312. The pertinent facts are therein set forth. This branch of the court wül refer only to such facts as are necessary to display the errors complained of, which are in fact three in number: First, that the judgment is against the manifest weight of the evidence; second, that the judgment is contrary to law, which is to say that each of the respective four appellants maintains that the judgment should have been in his or her favor, and not in favor of defendant, appellee herein, Charles Schaub; and third, that all testimony offered and received in evidence, over plaintiff’s objection, of interested parties to the action, prior to May 23, 1940, the date of appointment of plaintiff guardian, an appellant herein, was incompetent and should have been excluded because of the provision of Section 11495, General Code, which prescribes that a party shall not testify when the adverse party is the guardian of au, insane person.

This court finds that it is necessary to first consider and dispose of the third error claimed, which is of course stressed by plaintiff; but before doing so, certain recitations must first be made.

The Court of Appeals of' the First Appellate District, in reversing the judgment in the first appeal and remanding the cause for retrial, intimated in-its opinion that the chief of police, who had interpleaded in the first trial, ought to have been awarded the immediate possession of the $6,190 sought to be replevined. Thereupon, Chief Weatherly sought to withdraw his inter-pleader and asked for leave to file a cross-petition claiming the money in question. The trial court refused his request. The Court of Appeals of the Ninth Appellate District, on appeal from that finding, again reversed the judgment of the trial court, and the chief of police, as a result thereof, now appears at the second trial as a cross-petitioner and claimant to the fund.

The second trial, like the first, was, by agreement, tried to the court without the intervention of a jury, and resulted in favor of defendant Schaub, who was found to be the owner of 'the property. The major portion of the record made in the first trial was offered and received in evidence. That portion thereof which contained the testimony of defendant Schaub and defendant Peels, an appellant herein, which relates to matters prior to the plaintiff guardian’s appointment, is the particular' evidence claimed to have been improperly received, not because of the manner and form in which it was received, but because of claimed incompetency of the witness under the statute. The bill of exceptions tendered is an abbreviated one. Incorporated therein, by reference, are numerous portions of the first record. This cumbersome practice, which does not lend itself to clarity, but only to confusion, has caused this court much difficulty. It‘ has, however, displayed a fact of prime importance with reference to the third claimed error, which will be considered later.

In Ohio it has been said broadly that the action of replevin is grounded on wrongful detention. Conversely or more properly stated, a plaintiff must prove affirmatively his immediate right to possession of the thing claimed. Under that theory, a plaintiff may rely either upon a general or special ownership. Examples of the latter are found in a pledgee, bailee, mortgagee, mechanic’s lien claimant, and cases where purchasers have paid the purchase price of goods, or a portion thereof, and are entitled to possession by reason thereof. It will be noted that both forms of ownership and possessory rights incident thereto spring from well recognized contractual relationships. Under that theory it followed also that there was but one issue in replevin, that being the right to immediate possession. Hence, per example, it followed that a pledgee might properly be found entitled to immediate possession as against the general owner, the pledgor.

•However, this state has a general statute, Section 11263, General Code, which provides that in an action to recover personal property any person claiming an interest therein may be made a party. By virtue of that section, defendant Wilson, an appellant herein, and Peels and Schaub became parties to the present action. Examination of the pleading, in the light of trial claims, discloses that plaintiff guardian claims the right to immediate possession upon the theory of treasure trove, her ward, David Mitchell, being the finder thereof and entitled to possession thereof.

Chief of Police Weatherly’s claim is predicated on .provisions of certain statutes, Sections 4398, 4399 and 4400, General Code, which entitle him to hold stolen or other property found on the person of one arrested. %

Wilson grounds her claim to possession on the fact that she is the owner of the real estate upon which Mitchell first says he found the money.

Peels’ claim rests on asserted ownership of the moneys, as property stolen out of her own property, and upon which Mitchell later says he- really found the money.

It is, therefore, perceived that plaintiff guardian, the chief of police and Wilson claim only possessory rights, none of which grow out of contractual rights, but actually exist, by virtue of certain laws. Their claims are, therefore, grounded on operation of law. The claims of both Peels and Schaub, however, are founded on general ownership. That both could be the true owner is not possible. It might well be, as was found by the Court of Appeals of the First Appellate District on review of the first trial, that neither proved ownership.

It, therefore, ought to be apparent that if Peels and Schaub failed to prove general ownership, and Niederlehner and Wilson failed to prove a primary and immediate legal right to possession, the chief of police was entitled to have the moneys returned to him to be disposed of as the law prescribed.

As decided by the Court of Appeals of the First-Appellate District, if Mitchell was a thief or trespasser and procured this money by either means, he could not acquire title’or right to possession thereof thereby. But what if he found this money on the premises of another, as is his guardian’s claim?

Ohio has no statute relating to treasure trove. It is the generally accepted rule, however, that in the absence of legislation on that subject, the common law of early England governs, and that “title belongs to the finder as against all the world except the true owner.” See Weeks v. Hackett, 104 Me., 264, 71 A., 858, 19 L. R. A. (N. S.), 1201, 129 Am. St. Rep., 390, which reviews the authorities. We have no action in this state comparable to trover, unless it is found in the right to trial to property as that action is popularly ¡mown. Whether it is merged in the action of replevin is^a question; but when the replevin statutes are considered together with the permissive feature of Section-11263, G-eneral Code, then it ought to become apparent where treasure trove is relied upon to procure possession and general ownership is asserted by a third party, that more than one issue is presented. The right of a finder of treasure is good as against all the world, except the true owner. If ownership is proven, then plaintiff could not prevail and her right to possession becomes secondary and immaterial. Clearly, there were two issues before the court. That between Peels and Schaub was, which one was the owner of the property, or did neither own it? Plaintiff guardian, Weatherly and Wilson were only secondarily interested in that issue, because if it was established that either Peels or Schaub owned the property, they must fail in their respective claims to possession.

It follows, under the reason and authority of Totten v. Estate of Miller, 139 Ohio St., 29, 37 N. E. (2d), 961, that where the evidence of one defendant is competent as against another defendant upon an issue existing between them, as is the case between Peels and Schaub, and concerning which the plaintiff guardian is not primarily concerned, that evidence is competent to establish or disprove the issue between the contesting defendants as to general ownership between whom a separate judgment might be entered. The mere fact that the plaintiff prosecutes as guardian of an insane ward, and that Peels and Schaub appear as defendants, does not make them adverse parties within the exceptions enumerated in Section 11495, General Code. Parties to be adverse must hold the affirmative and the negative of an issue made or some material portion thereof.

There exists a further reason why Peels and Schaub were competent witnesses to the issue existing between them, and the same is true as to any issue existing between them and the plaintiff guardian, if any such did exist. As previously indicated, the bill of exceptions taken in the first trial and offered and received in evidence in the second trial discloses that plaintiff guardian waived any such privilege as she now claims under Section 11495, General Code. There, plaintiff’s counsel placed her ward Mitchell upon the stand and examined him in chief. Her counsel, for the purpose of cross-examination, called the defendant Peels and cross-examined her at great length. That evidence was offered in chief as part of the plaintiff’s case. Plaintiff’s counsel also cross-examined the defendant Schaub at great length. In fact, during the course of the first trial all bars were down. All parties were considered as competent witnesses. No holds were barred. In fact, practically every party litigant was examined by all counsel appearing for every other litigant.

Inasmuch as the statutory favor granted by Section 11495, General Code, is a personal privilege which a guardian may waive, as was done in the first trial, we think the rule ought to be, as stated by the author of the note appearing in 79 A. L. R., 176, appended to the report of Billingsley v. Gulick, 256 Mich., 606, 240 N. W., 46, 79 A. L. R., 166, that:

“A waiver of objection to the competency of a witness or to the privilege of testimony is not confined to the trial in which the waiver occurs, but extends to a subsequent trial of the same case.”

It was said by Chief Justice Marshall in Vattier v. Hinde, 32 U. S. (7 Pet.), 252, 266, 8 L. Ed., 675, that:

“The reversal of the original decree cannot annul the written consent of parties for the admission testimony. That consent was not limited in its terms to the first hearing, but was co-extensive with the cause.”

And in Green v. Crapo, 181 Mass., 55, 62 N. E., 956, where a privileged communication between attorney and client was involved, it was said by Chief Justice Holmes:

“Nevertheless the objection was urged when the case came to be tried before the justice of this court, and an exception was taken when he ruled that the privilege having been waived could not be insisted upon before him. We do not think it necessary to remark upon the willingness to hold back this testimony. We content ourselves with saying that the ruling was right. The privacy for the sake of which the privilege was created was gone by the appellant’s own consent, and the privilege does not remain under such circumstances for the mere sake of giving the client an additional weapon to use or not at his choice.”

Respecting the claim of the defendant Wilson, it is evident that her claim to the money is dependent upon ownership of the real estate wherein Mitchell first stated he found it. She does not claim to be the owner thereof. Her claim to possession is therefore founded on Mitchell’s theft or trespass or on treasure trove. She can not prevail on the theory of theft or trespass as against the true owner, even if she should prevail over Mitchell as such.

Neither can she prevail if the funds be treasure trove, for the reason that since the time of Armory v. Delamirie, 1 Strange, 505, 93 Eng. Rep. (22 King’s Bench), 664, it has been the law, that the owner of the soil whereon treasure is found acquires no title or right thereto by virtue thereof, as against the finder or the true owner. That rule has been universally followed, as is displayed in Weeks v. Hackett, supra, wherein it is held in the syllabus, that:

“The owner of the soil in which treasure-trove is found acquires no title thereto by virtue of his ownership of the land.”

With respect to the claim of ownership of the defendant Peels we must and do agree with the three courts who heard and reviewed this case, that her story is so absurd and fantastic as to be unworthy of belief. It bears all the earmarks of fabrication. The trial court was correct in so regarding her claim. .

Is the judgment entered in favor of Schaub against the manifest weight of the evidence! We think not. Schaub was a miserly and. eccentric old man. His testimony must be considered in that light and not in accordance with what a prudent and careful man would have done. As pointed out by the last trial court in its opinion, his story is corroborated in quite a few material particulars by disinterested witnesses. The trial court sat as both judge and jury. This court may not, even if it were disposed to do so, substitute its judgment in its stead. Finding sufficient credible evidence in support of the judgment, it follows that the judgment must be and is affirmed.

With respect to other errors claimed, all of which have been examined, we find no error therein prejudicial to the rights of the four appellants.

Judgment affirmed.

Putnam and Montgomery, JJ., concur.

Sherick, P. J., Putnam and Montgomery, JJ., of the Fifth Appellate District, sitting by designation in the First Appellate District.


author: Metcalf, P. J.

text:
    Portsmouth Clay Products Co., Appellant, v. The National Bank of Portsmouth, Appellee.

      (No. 523
    Decided February 16, 1946.)

      Messrs. Bannon & Bannon, for appellant.

      Messrs. Bannon, Bannon, Lynn & Howland, Mr. Stewart A. Hoover and Mr. Kenneth B. Johnston, for appellee.
   Metcalf, P. J.

Tlie plaintiff, tlie Portsmouth Clay Products Company, instituted this action in the Court of Common Pleas of Scioto county to recover from the defendant, The National Bank of Portsmouth, for losses sustained by reason of the vice-president, secretary, general manager and director of plaintiff company, without any authority so to do, depositing to his personal account in defendant bank certain checks made payable to the order of plaintiff. Plaintiff alleged that the defendant bank did unlawfully convert to its own use these checks and the proceeds thereof, the property of the plaintiff. The petition sets forth 28 causes of action which are alike except as to dates, names of payors and amounts involved. The checks total $18,079.27, which amount was reduced by stipulation in the amount of $701.39 to the present amount claimed by plaintiff of $17,377.88.

The defendant’s amended answer consists of five defenses, the first being a general denial of the allegations in the 28 causes of action, except the admission of the corporate capacity of plaintiff.

The second defense sets up the negligence of the plaintiff in reconcilement of the bank statements periodically furnished by the defendant to plaintiff.

The third defense sets forth the ground of estoppel by reason of the failure of plaintiff to properly reconcile the statements furnished by defendant and report any discrepancy to the bank as between the statements and the deposits made by plaintiff.

The fourth defense claims restitution by plaintiff’s defaulting official in eleven of the causes of action set out in plaintiff’s petition.

The fifth defense maintains that the defendant is completely released from any claims or demands resulting from the misconduct of the officers or agents of plaintiff company by reason of certain writings filed with defendant by plaintiff at the time defendant became plaintiff’s depositary, in consideration of the banking service to be rendered by defendant to plaintiff.

The trial court rendered judgment in favor of the defendant from which plaintiff appeals on questions of law.

Although there are six separate assignments of error and we have examined them all, yet, in the opinion of this court, only one question is presented a consideration of which is dispositive of this appeal. That question arises under the second and third defenses of defendant’s amended answer. Was the plaintiff negligent in the reconcilement of the bank statements and did its failure to report any discrepancies promptly to the defendant estop plaintiff from asserting its claims ?

The salient facts are not in dispute. Among the officers of the plaintiff- company was one Judd, who in addition to being a director was vice-president, secretary and general manager. Both the plaintiff corporation and Judd did their respective banking business with the defendant bank, each having separate deposits therein. Judd had charge of both of these bank accounts and endorsed in the usual course of business the corporate checks received by plaintiff, and payable to it, as payment for merchandise sold, by placing thereon the corporate endorsement and depositing the same to the plaintiff’s account in defendant bank. Commencing on or about February 13, 1939, and running to and including January 7, 1943, Judd, from time to time, added his individual name to that of the corporate endorsement and deposited these checks in his individual account. These fraudulent diversions on the part of Judd make up the 28 causes of action hereinbefore referred to in plaintiff’s petition, aggregating the amount hereinabove set out.

Judd, as secretary, had charge of the books of the company and, both individually and in -conspiracy with the bookkeeper, entered credit only on the company’s books in favor of those customers whose checks he had placed in plaintiff’s account in defendant bank but entered no credit on the books to the customers whose checks he had placed in his own account in the same bank. Of course, by this method, the amount of the deposits and the credits entered in the records were made to agree. If and when the occasion required and Judd was forced to give credit to a customer, in-so far as the bookkeeping mechanics were concerned, he charged the necessary amount out of his expense or drawing account and credited the customer,- which had the effect of keeping the'books balanced although, of course, erroneously so.

The defendant bank during the period of these conversions delivered to plaintiff corporation the ordinary bank statements from time to time, approximately monthly, showing the aggregate amount of deposits and withdrawals and the status of the account. These bank statements had printed at the bottom thereof the notation, “Please examine. If not correct report at once.” None of the credits given by Judd as a result of charging his expense or drawing accounts are evidenced by these statements of any deposit of the money alleged to have been received on the books of the company from the customers to whom credit was given. The record discloses that at one time Judd borrowed a large sum of money from a customer on a 90-day note and deposited such sum with a small amount of his own money in the bank to the credit of plaintiff in order to balance the books. The record also shows deposits made in the account of plaintiff without entering the same upon the books of the company in order to build up the bank balance sufficient to repay this loan. Judd entered various credits to customers on the books of plaintiff but the same do' not appear on the bank statements as deposits. The record in this case discloses the repayment of the customer’s loan by this devious, method of juggling plaintiff’s books and the bank deposits.

The bank statements furnished plaintiff, in many instances within a day or two following these false transactions, could not have been reconciled with the books of plaintiff by an honest employee and should have disclosed, and of course did disclose, the discrepancy or fraud.

The same is true as to the credit given customers, who had theretofore paid the accounts, by Judd charging his expense or drawing account or loan account.

The record is replete with transactions on the part of Judd in his relationship with the bank and the books of the company, sufficient to establish that plaintiff company knew, or should have known, by the mere formality of reconciling the bank - statements with its books, from the inception of the fraud to the end thereof, that something was materially wrong. At no time during this period did plaintiff company ever notify the defendant bank of any variance between the bank statements and plaintiff’s books or that anything was wrong in the conduct of its banking affairs as carried on by Judd.

The defendant bank in receiving the checks belonging to plaintiff and collecting the proceeds thereof, being plaintiff’s depositary, had a positive duty to see that they were placed in plaintiff’s account, and in the event plaintiff company was not negligent, the bank is liable for the acts of its employees in placing the money belonging to plaintiff in the account of Judd. Potts Co., Inc., v. Lafayette National Bank of Brooklyn, infra.

There is much in the instant case touching th¿ banking practice of defendant bank in its relationship with its depositors, the plaintiff and Judd. The president of defendant bank admits that this conduct was poor banking practice. This court does not want to be understood as condoning this conduct on the part of the defendant bank yet we are bound by certain definite rules of law in determining whether the plaintiff, by its own conduct, was guilty of negligence precluding recovery.

The Court of Appeals for Franklin county, in the case of White Castle System, Inc., v. Huntington National Bank, 36 Ohio Law Abs., 253, 43 N. E. (2d), 737, held in a similar situation:

“Where it is a custom for a bank, known to the customer, to send out statements at certain intervals, it is the duty of the custofuer to examine such statements and reconcile them with their own books, and if there is a variance the error must be reported to the bank within a reasonable time.”

Counsel for plaintiff, throughout their brief, insist that plaintiff company had no way of ascertaining the fraudulent diversions of Judd because the bookkeeper was co-operating with him in covering up and concealing Judd’s wrongdoing. That contention is answered in the White Castle ease wherein the court held:

“The fact that a depositor has entrusted performance of its duty to examine statements rendered to it by hank and to give notice of errors therein, to dishonest employee who has diverted depositor’s check to his own account does not excuse depositor’s failure to notify bank of errors in account, since depositor was chargeable with knowledge which examination of statements by honest employee would have disclosed. ’ ’ That principle of law is pronounced in many of the cases cited by counsel for both parties.

It is further contended that by reason of plaintiff company having its hooks audited annually by a certified accountant, and that by reason of such audit not having disclosed the variance resulting from the transactions of Judd, it is conclusive that plaintiff company was not negligent. An examination of the testimony of the auditor discloses that only a balance sheet audit was made. His testimony is in effect that he only verified the balance at the close of the year. The evidence discloses that when a detailed audit was made, after the bookkeeper had confessed his part in aiding Judd, there was no difficulty in finding the discrepancy. Therefore, in the opinion of this court, the various audits made during the period of diversions neither added nor detracted from the responsibility of plaintiff company.

In the ease of Erickson Co. v. Iowa National Bank, 211 Iowa, 495, 230 N. W., 342, the Supreme Court laid down the rule that although the principal is not chargeable with knowledge of his agent’s dishonest act adverse to the principal’s interest, he is nevertheless chargeable with knowledge of such facts as an honest agent would acquire in performing his duty in examining the bank statements.

In the case of Potts Co., Inc., v. Lafayette National Bank of Brooklyn, 269 N. Y., 181, 199 N. E., 50, 103 A. L. R., 1142, the purpose of an examination by a depositor of a statement of his account with a bank is ably discussed and it is emphasized that a failure on the part of the depositor to verify.the correctness of the debits and credits shown has the effect of making the bank statement an account stated.

It was held in that case that the intrustment by a depositor of its duty, to examine bank statements and give notice of errors therein, to a dishonest employee, who was diverting proceeds of depositor’s checks, did not excuse depositor’s failure to notify the bank of errors, since depositor was chargeable with knowledge that he had endorsed certain checks to the order of the bank and was charged with disclosures which an examination of the statements by an honest employee would have made.

Counsel for plaintiff in the instant case, both in oral argument and in brief, rely on the case of Wagner Trading Co. v. Battery Park National Bank, 228 N. Y., 37, 126 N. E., 347, 9 A. L. R., 340. In that case the plaintiff was not the depositor of defendant bank and consequently there was no banking relationship existing between them. Defendant could not send plaintiff bank statements because there were none to send. Therefore, plaintiff could, not have been negligent because it owed no duty to defendant bank to reconcile and report any variance .as between plaintiff’s books and the deposits.

It is urged that a different responsibility rests upon both the bank and the depositor in a case of fraud as distinguished from that of forgery. But so far as the responsibility of the depositor goes in reconciling the hank statements with its books the law is no different in either fraud or forgery.

There is another feature of this case to which the trial court called attention and that is the familiar rule that, where one of two innocent parties must suffer, justice requires that the loss be borne by him who is first at fault and who first put in operation the power which resulted in the loss.

That principle was reaffirmed and applied by the Supreme Court of Ohio in Hillside Dairy Co. v. Cleveland Trust Co., 142 Ohio St., 507, 53 N. E. (2d), 499, a case of forgery it is true, yet one in which it was held that the depositor could not recover when the loss was due to his negligence through his continued, misplaced confidence in his own faithless employee.

In the instant case, there is evidence in the record on the part of plaintiff company that indicates strongly that the plaintiff knew of the gambling and spending habits of Judd but because he seemed to make money for the plaintiff those faults were overlooked.

A consideration of all the evidence in the instant case leads this court to the conclusion that the trial court was correct in its finding that plaintiff was negligent in its failure to reconcile and report any variance or discrepancy between its books and the bank statements furnished by defendant and that by reason of such neglect recovery on the part of the plaintiff is precluded. The judgment will be affirmed.

Judgment affirmed.

Gillen and McCurdy, JJ., concur.


text:
    Filkosky, Admr., Appellee, v. The Pennsylvania Rd. Co., Appellant.
    (No. 1956
    Decided April 11, 1946.)

      Mr. Frank A. Bolton, Mr. Walter U. Bolton and Mr. James M. Sdialler, for appellee.

      Messrs. Pomerene <& Burns, for appellant.
   Sherick, P. J.

The petition in this case, an action for wrongful death occurring at a street crossing, alleges three specifications of negligence: First, that defendant negligently failed to give any signal of the approaching train; second, that defendant’s train was being operated at a high rate of speed, to wit, 60 miles per hour, in violation of the municipal ordinance; and third, that the crossing watchman failed to give decedent any warning or to use the stop sign in his possession to warn her of impending peril.

Defendant’s answer is a general denial and an averment that decedent’s injuries were caused, or contributed to, by the decedent.

At the conclusion of plaintiff’s case defendant moved for an instructed verdict upon the theory that decedent’s conduct evidenced contributory negligence which barred recovery. The trial court sustained that motion, a verdict was returned responsive thereto, and judgment was then entered upon the verdict. Thereupon plaintiff moved to set aside the judgment and for a new trial. Whereupon the court reconsidered its prior action, concluded that plaintiff’s case should have gone to the jury, and granted a new trial. From that order defendant appeals on a question of law.

A reading of plaintiff’s case as made, with the rule in mind that a motion for an instructed verdict must be considered in its most favorable light in favor of him against whom it is directed, discloses that a ringing- of a bell or blowing of a whistle may or may not have been given; and that the train was proceeding at a rate of speed of from 25 to 60 miles per hour in violation of a city ordinance.

With respect to the third ground of negligence, the failure of the watchman to give decedent warning, these facts were developed: That there were no lights, gates or bell located at this busy crossing; that defendant did maintain a watchman at this crossing for its own and the public’s benefit; and that decedent was familiar with the crossing, having many times driven over it. It is in evidence that the day was dark; that smoke hung low and visibility was poor; and that under usual atmospheric conditions decedent might have seen up the track for a quarter of a mile. It is shown that a yard engine and cut of freight cars had just passed over the crossing, proceeding in the same direction as the oncoming train on another track. It is shown that decedent drove west on Chester street, which parallels defendant’s tracks; that the oncoming train was at decedent’s back; that when she reached Cedar street she turned right and stopped. A large truck was in front of her and one behind her, and another car was approaching the cross-over from the north. The operators of those vehicles say that after the switch engine and cut of cars going west had crossed over the intersection the watchman was in his accustomed place on the street with his semaphore in hand, the stop portion down near the ground, and with his other hand he was motioning traffic across; that the first truck crossed over, the decedent was hit, and the second truck was stopped by its driver when only six or seven feet from the track upon which the train was approaching. There is no proof as to whether the decedent looked and listened.

Defendant maintains that decedent’s failure to look and listen, when such would have been effective, as is evidenced by a lack of proof to the contrary, establishes contributory negligence as a matter of law, which bars recovery, and that the court was correct in directing a verdict and entering judgment, and wrong in vacating the judgment and granting a new trial. The sufficiency of plaintiff’s case is further questioned. That is, it is claimed that the court had improperly admitted evidence of the watchman’s direction to cross over, in view of plaintiff’s pleading an act of omission' and not an affirmative act. The answer to the last claim is that the affirmative fact of the watchman’s beckoning the decedent forward is one from which a rather strong and reasonable inference may be drawn that the watchman failed to give her warning of her peril by doing the exact contrary.

The question before this court is: Does the lack of proof that decedent did look and listen bar recovery under these enumerated facts?

The general rule is well recognized that one in crossing railroads in city streets must stop, look and listen, when snch would be effective, before attempting* to cross over. In other words, one must exercise all his senses for his own safety, and must, therefore, exercise that degree of care which an ordinary prudent person would exercise in his own behalf. Keeping in mind' that this case does not involve safety gates, flasher lights, or sounding gongs, but only the presence of a crossing watchman directing traffic thereon, and known to be there, and in a position to know of and to see approaching trains, the question comes: Should the general rule apply?

It is said in 44 American Jurisprudence, 821, that:

“The general rule seems to be that the traveler is relieved partially at least of the duty of exercising care in going upon the crossing. The flagman by reason of his situation is better able than the traveler to judge when it is safe to cross the tracks. It is his duty to give timely warning of the near approach of trains, and the public have a right to rely upon a reasonable-performance of that duty. * * * There are, however, numerous decisions to the effect that a signal to cross given by a flagman does not excuse the traveler from the duty to look and listen, but merely exacts of him a less degree of care in looking out for trains. It cannot be said as a matter of law that the plaintiff in such a' case may rely upon the flagman; neither can it be said, as a question of law, that his failure to look or listen is.not contributory negligence. It is a question of fact, to be determined by the jury. ’ ’

Many authorities from numerous jurisdictions adopt that view in such cases. In Kasky v. B. & O. Rd. Co., 23 Ohio App., 185, a case in which there were open gates and a watchman, the court applies the exception to the general rule. Again, in Thomas v. Penna. Rd. Co., 70 Ohio App., 191, 45 N. E. (2d), 776, the exception is examined and followed. It is said in the second and third paragraphs of the syllabus:

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

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

In the case before this court there were poles, the presence and noise of a switching train, trucks and other traffic, a complete stop by the motorist, and poor visibility, all coupled together with a beckoning by the watchman for traffic to proceed. We think that, from all surrounding circumstances, the question of contributory negligence was one of fact for the jury and not one of law for the court.

The case of Cleveland, C., C. & I. Ry. Co. v. Schneider, 45 Ohio St., 678, 17 N. E., 321, recently reviewed and considered in Toledo Term. Rd. Co. v. Hughes, 115 Ohio St., 562, 154 N. E., 916, and Lohrey v. B. & O. Rd. Co., 131 Ohio St., 386, 3 N. E. (2d), 54, may be pursued with profit. Those cases have to do with open and closed gates and sounding targets. It is held in the Hughes ease that:

“A traveler approaching a railroad crossing at which he knows an automatic signal is maintained, while entitled to place some reliance upon the indication of safety which silence of the signal implies, is nevertheless bound to use such care in addition as an ordinarily prudent man would use under such circumstances. ’ ’

' If a traveler may place “some reliance” on such devices, then surely he may place greater confidence in a watchman placed there by a railroad company for protection of the public. Automatic devices are usually not mechanically perfect. They may at times get out of order and fail to function properly. But when a human agency in a position to exercise all his faculties better than an approaching traveler, and with general knowledge of arrival time of fast trains, and placed there for the benefit of the public, waves travelers an invitation or direction to cross, and is known by the traveler to be placed there for direction of traffic, then it ought to be the rule that the motorist may place a greater degree of reliance on the flagman. We do not mean to say that the traveler may place full reliance on the flagman, but that his degree of care for his own safety is but proportionately lessened.

A search of the authorities from sister states discloses that even the courts of Pennsylvania have at times departed from the hard-and-fast rule of stop, look and listen. Practically every jurisdiction applying that rule has held that the rule is not absolute. See 1 A. L. R., 213.

» When the act or omission of a railway company misleads the traveler and throws him off his guard, this court is of the opinion that the rule stated in Cunningham Hdw. Co. v. L. & N. R. Co., 209 Ala., 327, 96 So., 358, ought to apply. Therein it is held that where a railroad flagman duly stationed at a crossing invites a person to proceed across, the latter is not guilty of negligence per se in not stopping, looking and listening before obeying the signal to cross.

A goodly number of like holdings may be found. In the present instance the traveler did stop and stood there until the signal to cross was given. In such a case this court holds that under such circumstances the-question ceases to be one of law and becomes one of fact for the jury to determine.

It follows that the trial court was right in its reconsidered judgment, which is affirmed.

Judgment affirmed.

Putnam and Montgomery, JJ., concur.


author: By the Court.

text:
    Rollman & Sons Co., Appellee, v. Huguley, Appellant.
    (No. 6673
    Decided June 24, 1946.)

      Mr. Cedric Vogel, for appellee.

      Mr. Harry Falk, for appellant.
   By the Court.

The Municipal Court of Cincinnati rendered judgment for the plaintiff for $30 upon, an account. The Common Pleas Court affirmed the judgment and the case is now in this court on appeal on questions of law.

It is claimed that there is no substantial evidence of the account. However, two exhibits were introduced in evidence without objection — one showing apr plication for a charge account and the other a ledger account. It may be that the bill of exceptions does not show all the preliminary proof necessary to make an account eompeteiit, but, if so, objection should have been made at the time, so that the plaintiff would have had the opportunity to supply the omission, if it was in its power to do so.

There is evidence that this charge account was established by and with the approval of the defendant, and that he ratified it.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


text:
    Kitchen & Sheets, Inc., Appellee, v. Seegmiller, Appellant.
    (No. 917
    Decided June 26, 1946.)

      Mr. C. W. Elliott, for appellee.

      Mr. Clinton D. Boyd and Mr. Maanvell Finhleman, for appellant.
   By the Court.

The defendant appeals on questions of law from a judgment of the Court of Common Pleas in favor of the plaintiff. This judgment was entered upon a verdict in favor of plaintiff.

The plaintiff claimed in its pleadings that the defendant had agreed to pay plaintiff a commission for the sale of certain real estate; that plaintiff had procured a purchaser therefor; and that the defendant sold the real estate to such purchaser directly and refused to pay plaintiff its commission.

The defendant denies these allegations. The general and special charges of the court fairly stated the issues presented by the pleadings. The evidence sustained the conclusion of the jury.

The defendant lays great stress upon the fact developed in the statement of counsel and the evidence that the property, which the defendant sought to have sold, belonged to the defendant’s wife. There is no rule of law preventing one from agreeing to pay a commission for the sale of another’s property. This is not an action between a purchaser and seller.

• The court required the plaintiff to amend its petition. In doing so, the court committed error as far as the plaintiff was concerned, but the pleading of plaintiff still contained the necessary allegations furnishing a predicate for the verdict of the jury.

No error appears in the record prejudicial to the defendant, and the judgment is affirmed.

Judgment affirmed.

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


author:
By the Court.
      Matthews, J.,

text:
    Ribarin, Appellant, v. Kessler, Appellee.
    (No. 6642
    Decided June 24, 1946.)

      Mr. Robert P. Moore and Mr. Robert F. Dreidame, for appellant.

      Mr. Leo J. Brumleve, Jr., for appellee.
   By the Court.

The plaintiff, suffering from an infected tooth, called upon the defendant, a dentist, who, using novocain as an anesthetic, pulled the tooth. The infection, indicated by the swelling of a gland, spread rapidly the following day, causing serious illness.

The plaintiff filed a petition against the defendant, alleging malpractice in the administration of the’anesthetie and subsequent treatment.

The plaintiff, at the close, of the evidence, was permitted to amend her petition, specifically alleging that the defendant was negligent in that he used novocain by infiltration, where the same could not be used with safety to plaintiff.

The answer was, in effect, a general denial.

Trial resulted in a verdict for defendant. Motion for new trial was filed and overruled and judgment entered for defendant. Notice of appeal on questions of law was filed to this court.

The court in its general charge attempted to state the issues, but the charge developed into a general comment on the evidence and the controversy between the several witnesses testifying. In many places, the court stated its conclusions on what was common practice among dentists. The issues in a case are made up by the pleadings, not mere conflicts in the testimony of witnesses. The court is required to state the issues to the jury.

The fifth paragraph of the syllabus in the case of Simko v. Miller, 133 Ohio St., 345, 13 N. E. (2d), 914, is:

“In submitting a case to the jury, it is the duty of the court to separately and definitely state to the jury the issues of fact made by the pleadings, accompanied by such instructions as to each issue as the nature of the case may require. (Baltimore & Ohio Rd. Co. v. Lockwood, 72 Ohio St., 586, approved and followed.)”

The issues in a case are presented by the pleadings. Sections 11377 and 11378, General Code. See Gerend v. City of Akron, 137 Ohio St., 527, 531, 30 N. E, (2d), 987; Kelley v. Armstrong, 102 Ohio St., 478, 132 N. E., 15; Lake Shore & M. S. Ry. Co. v. Hutchins, 37 Ohio St., 282.

In Morgan v. State, 48 Ohio St., 371, 27 N. E., 710, the fifth paragraph of the syllabus is:

“In the trial of a jury case the judge is not required to sum up the evidence. It is not improper to do so providing it is fairly done, and all the material evidence on both sides fairly presented. But it is improper and erroneous for the judge to single out isolated parts of the testimony and instruct as to the law arising on the facts which such testimony tends to prove, or to give undue prominence to some portions of the testimony, and entirely pass over other portions equally important, or give the same but slight attention. ’ ’

The claim of the plaintiff was that the improper injection of novocain into the infected area about the tooth caused the present infection to spread and caused her resulting illness. At one point in the general charge, the court said:

“Now, Dr. Kessler by answer filed in this case and otherwise denies that there was anything wrong or negligent in the way he treated plaintiff’s case. Dr. Kessler did use novocain in extracting plaintiff’s tooth, but he says that that was all right, that novocain is in general use and recognized as a proper anesthetic in extracting teeth by dentists of this city and of this state. Dr. Kessler says that in fact novocain is-preferred generally by dentists over other forms of anesthesia in the extraction of teeth and all of the expert witnesses say, and in fact it is a matter of common knowledge, you and I and everybody knows that novocain is in common use and generally recognized by dentists as a proper anesthesia in the extraction of teeth, but plaintiff says it was wrong, negligence, for Dr. Kessler to have used novocain and not gas or some other anesthetic under .the circumstances of her ease, there being as she says infection in and around the tooth extracted. Plaintiff’s tooth had to be extracted. The purpose of an anesthetic is to kill the pain from the extraction of the tooth. The novocain injected by Dr. Kessler seems to have done that, for plaintiff complains of no pain from the extraction of her tooth. One of the expert witnesses in this case says that he would have preferred to use gas in the extraction of plaintiff’s tooth. Well, that was his privilege, but it is no proof that Dr. Kessler was wrong or negligent in using novocain. Quite naturally, if there are several types of anesthesia, dentists would have their preference as to the type that they would use in particular cases. There.are several forms or types of anesthesia recognized as proper and in common use by dentists in this city in the extraction of infected teeth. The question is, and that’s the question for you to determine, was novocain one of these several forms of anesthesia in common use by dentists in this city in the extraction of teeth. If so, there was nothing wrong nor was Dr. Kessler guilty of any negligence in using novocain as an anesthesia in the. extraction of plaintiff’s tooth, because that was then in conformity to the present-day practice and science of dentistry in this city. But if novocain was not one of the types of anesthesia recognized as proper to be used in the extraction of an infected tooth such as plaintiff alleges she had, then Dr. Kessler was wrong and guilty of negligence in using it as an anesthesia in the extraction of plaintiff’s tooth, and if Dr. Kessler failed to exercise the skill and care in the use of novocain in the extraction of plaintiff’s tooth that ordinarily prudent dentists are accustomed to exorcise under the same or similar circumstances then he would be guilty of negligence.”

It would seem apparent that such expressions by the court must have had a pronounced effect in producing a verdict for the defendant, and were erroneous, therefore, to the prejudice of appellant.

In 39 Ohio Jurisprudence, 1003 and 1004, Section 295, it is stated:

“The trial judge is not required to sum up the evidence, although it is not an invasion of the province of the jury for him to do so, and he may recite what is claimed by the parties to be proved, provided this is fairly done and nothing is said which will unduly emphasize items of evidence on one side, eclipse equally important items of evidence on the other, attach influence or importance to particular matters favorable to one or the other of the parties, indicate to the jury the view of the court on a particular issue, etc. Any review of the evidence by the judge should be scrupulously accurate as to matters of substance. Thus, the court should not single out isolated parts, of the testimony, or isolated facts upon which a party relies* and instruct as to the law arising on such facts or testimony. And a statement of the evidence by the court argumentatively, so as to give the jury the manifest conclusion of the court as to the fact submitted to their determination, is uniformly condemned as improper. The importance of a correct statement of the testimony where the court undertakes to state the same in the course of its charge cannot be exaggerated, for juries are alert to catch the least note from the presiding judge as to his view on important issues. ’ ’

It is also apparent that the rules laid down in Ault v. Hall, 119 Ohio St., 422, 164 N. E., 518, 60 A. L. R., 128, were ignored by the court in" the general charge, the special charge of plaintiff refused and special charge of defendant, given. In the syllabus in Ault v. Hall, it is stated:

“2. In an action for negligence, conformity to custom or usage is a matter proper to be submitted to the jury for its consideration in determining whether or not ordinary care has been exercised.

“3. Customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged, but conformity thereto is a circumstance to be weighed and considered with other circumstances in defiermining whether or not ordinary care has been exercised.

“4. Methods employed in any trade, business or profession, however long continued, cannot avail to establish- as safe in law that which is dangerous in fact.”

The court gave defendant’s special charge No. 7, which is as follows:

“The court charges you that, if the treatment adopted by the defendant is approved by a substantial number of dentists exercising the average degree of skill, care and diligence, by members of that profession practicing in tbe same or similar communities or localities, in the light of the present state of dental science, then the plaintiff cannot recover and your verdict must be for the defendant.”

This charge does not conform to the rule pronounced in Ault v. Hall, supra. The same error was inherent in the defendant’s special charge No. 2.

Defendant’s special charge No. 1 is misleading and should not have been given.

On the other hand, plaintiff’s special charges Nos. 1 and 3 stated correct rules of law applicable to the facts in the case and should have been given. The error in refusing them was prejudicial to the rights of the plaintiff.

The court gave defendant’s special charge No. 4, as follows:

‘‘ The court charges you that in this case, as in every action for damages for malpractice, negligence is not presumed from the mere fact that the plaintiff’s condition became more aggravated after treatment. To the contrary, a presumption is always indulged in favor of the conclusion that the defendant exercised due care and skill in his treatment of the plaintiff.”

While this statement is not so prejudicially erroneous as in itself to require a reversal, it does not state the rule correctly.

The proper statement is set out in the first paragraph of the syllabus in Martin, Jr., v. Heintz, 126 Ohio St, 227, 184 N. E., 852:

‘ ‘ There is no presumption of negligence, except such as arises from facts proven. There is a presumption of freedom from negligence, and such presumption stands until rebutted by evidence.”

See, also, Troop A Riding Academy v. Miller, 127 Ohio St., 545, at 549, 189 N. E., 647; Pitt, Admx., v. Nichols, 138 Ohio St., 555, 37 N. E. (2d), 379.

There is authority for the statement of a presumption, 'and the charge cannot he said to be prejudicially erroneous. 29 Ohio Jurisprudence, 625, Section 149.

However, Chief Justice Marshall, in Ault v. Hall, supra, at page 428 of the opinion, stated the principle involved:

“One of the assignments of error in the instant case is that the court erred in imposing too great a burden upon the plaintiff in establishing her case in charging a special instruction requested by the defendant: ‘The court says to you as a matter of law that the presumption is in favor of the defendant in this case, namely, that Dr. Hall, at the time complained of, was in the exercise of ordinary care in the premises.’ Similar expressions are so often employed by the trial courts of this state that we would not reverse this judgment upon that ground alone, and yet it must be said that it was not an accurate statement of the proposition. It is more accurate to instruct the jury that no presumption of negligence is indulged from the mere fact of injury, but that the burden of proof is on the plaintiff to show by the preponderance of the evidence that she was injured by the negligence of the defendant and that such negligence occasioned her damage. Of course this very general statement would not apply where the doctrine of res ipsa loquitur is involved, or, in case of common carriers, who contract for the safe carriage of persons and property, and perhaps in other instances.”

It is also the claim of plaintiff that the court improperly excluded the “bedside notes ajid physician’s statements” concerning the plaintiff, while an inmate of a private charitable hospital.

In the record appears:

“Q. Doctor, I will hand you this booklet form with a number of pages and tell me whether or not you can identify this record. A. This is the record of Mrs. Ribarin.

“In what hospital? A. In the Jewish Hospital.

“Mr. Brumleve: We are admitting all that, your Honor please, that this is the record of the case of Mrs.' Ribarin at the hospital; that it is kept in the usual course of their business; that it is a private and charitable hospital; and that this was under the supervision of Dr. Goldman and Dr. Goldman’s name is on it. So there is no doubt about that.”

The court refused the entire record and permitted certain portions to be admitted. The court excluded certain notes made by physicians and nurses. It would appear that such excluded evidence (exhibit 3) should have been admitted under the terms of Section 12102-23, General Code, and the court committed error prejudicial to the plaintiff in excluding such record. Weis v. Weis, 76 Ohio App., 483, 65 N. E. (2d), 300.

The defendant claims that the jury should have been instructed to return a verdict for him. This claim-cannot be sustained, in the face of substantial evidence which would have sustained a verdict for the plaintiff.

For error in refusing to give plaintiff’s special charges Nos. 1 and 3, and giving defendant’s special charges Nos. 7 and 2, and for error in the general charge, and the exclusion of hospital records, the judgment of the Court of Common Pleas is reversed and the case remanded for a new trial.

Judgment reversed.

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

Matthews, J.,

concurring. I am in accord with my associates in concluding that there is prejudicial error, requiring a reversal of the judgment. This error consists in the giving of special charge No. 7, requested by defendant, and the refusal to give special charges Nos. 1 and 3, requested by plaintiff, and in the exclusion of the hospital records, offered by the plaintiff.