text:
    NEGLIGENCE AS BETWEEN A TRUCK AND A COLLIDING STREET CAR.
    Judge Patterson of the Fifth District Sitting is place of Judge Dunlap.
    Court of Appeals for Cuyahoga County.
    Cleveland Railway v. Lee.

    Decided, November 5, 1920.

      Negligence — Truck and Street Car Collide at a Right Angle Crossing— Doctrine of Last Clear Chance not Applicable — Where Each Driver had the Same Opportunity of Seeing the Other Approaching— Charge of Court.

    When a street car and vehicle approach a certain point at right angles and collide upon reaching that point, tile doctrine of last clear chance is not applicable, where tbe driver of each had an equal opportunity of seeing the other approaching and could see the other while at a distance though the view was obstructed just before the vehicle arrived at the point of collision, if there was no evidence to prove that the negligence of the driver of the vehicle in driving upon the track had ceased prior to the accident.
    Heard on error.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Hart, Cfjtrry, Sklenielca t& Murray, for defendant in error.

       Motion to require Oourt oí Appeals of Quyahoga County to certify its record in this case overruled by the Supreme Oourt January 18,1921.

   Washburn, J.

In this ease, Park B. Lee, defendant in error, was the driver of a truck, which he drove from a driveway on to the tracks of the Cleveland Railway, in front of an approaching car. Immediately upon the forward part of the truck getting upon the track it was struck by the ear, and Lee' was injured. He sued the company, and recovered a judgment for $5,000.

The trial judge charged:

“Outside of the allegation that the street car was going at a rate of thirty miles an hour, and the allegation that no gong was sounded, or warning given, the gist of plaintiff’s action is the charge made in the petition, as follows:
“ ‘Plaintiff says that after the defendant saw, or, by the exercise of ordinary care should have seen plaintiff, the defendant could have avoided striking the plaintiff, by stopping said car, or decreasing its speed; that the defendant, after seeing the plaintiff, or after, by the exercise of ordinary care, plaintiff could have been seen, made no effort whatever to avoid striking the plaintiff; that, in failing to make such effort, the defendant was negligent,”

The court also charged:

“The rule may be simply stated in this way; although a person comes upon the track of a street railway company negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him. they are bound to do so. In other words, what I mean, gentlemen of the jury, is simply this: the plaintiff, Lee, may have been guilty of negligence in driving up in this track as he did, yet such negligence will not defeat the right of the plaintiff to recover, if the motorman saw the danger in which he was placed, or in which he placed himself, in time to have avoided colliding with him, by the exercise of reasonable care, and by the use of all the means at his command, and negligently failed to exercise such reasonable care. That is, of course, if you find there was negligence upon the part of Lee in driving upon this track in front of the approaching car, then you will proceed and examine the conduct of thf motorman after he discovered, or by the exercise of ordinary care ought to have discovered the danger in which the plaintiff, Lee, was at the time. ’ ’

The court made further reference to this phase of the case, but the court nowhere charged the jury that if Lee was negligent, and his negligence continued up to the time of the accident, so that the collision was due to the concurring negligence' of both parties, he could not recover.

The record discloses that the car and the truck were approaching a given point at right angles to each other, and that the collision occurred immediately upon their reaching that point; the driver of each had equal opportunity to see the other approaching, and, if either had stopped before reaching the point, the accident would have been avoided; and it further appears that while the drivers could see each other when some distance from the meeting point, they could not, owing to an obstruction, see each other just before the truck emerged from the driveway upon the street. It does not appear that “the motorman actually saw such vehicle and had it continually in view lor a considerable distance from the crossing,” as was the case in West v. Gillette, 95 Ohio St., 305.

It is difficult to see how the doctrine of the last clear chance could be applicable to a situation such as disclosed by this record. The latest pronouncement by our Supreme Court on this subject is that to entitle a plaintiff to a charge by the court of the doctrine of the last clear chance, “the evidence must have tended to show that, while his negligence may have contributed toward getting him in the position of danger, all negligence on his part had ceased for a sufficient time prior to the accident to have enabled the * * * [defendant], after it Imetu of his situation of peril, to have avoided the accident,” by the exercise of ordinary care on its part. Pennsylvania Co. v. Hart, 101 Ohio St., 196, 200.

We are aware that this statement of the law is, in some respects, not in accord with some earlier pronouncements of the Supreme Court; but it is in accord with several decisions of that court, and, being the latest pronouncement, and, as we believe, supported by the great weight of authority in this and other states, we accept and apply the same as the law governing the court in the case at bar.

Tested by that statement of the law, we are clearly of the opinion that if Lee was negligent in going upon the track in front of an approaching ear, there was no evidence tending to prove that such negligence on his part had ceased prior to the accident. He was either free from negligence, or his negligence was concurrent, and so coincident in point of time with the negligence of the company as to preclude the application of the doctrine of the last clear chance, and the court below was in error in charging that doctrine.

We can not say, as a matter of law, that Lee was negligent, and that such negligence was the proximate cause of his injury, the situation as presented by the record is one where different minds might reach opposite conclusions, and thus the case was a proper one for a jury, under proper instructions. Therefore the court did not err in overruling the motions for a directed verdict.

For error in the charge of the court, the judgment is reversed, and the cause remanded.

Patterson and Vickery, JJ., concur.


source: Caselaw Access Project

author: Cushing, J.

license: Public Domain

text:
    SUFFICIENT GROUNDS FOR DISSOLUTION OF A CORPORATION.
    Court of Appeals for Summit County.
    In re Dissolution of The Waldorf Amusement Company.
    Decided July 14, 1920.

      Corporations — Proceedings for Dissolution — Showing that the Purposes of the Company Have Been Practically Abandoned — Constitute Basis for Action Under Section 11938.
    A corporation will -be dissolved 'by proceedings brought for that purpose under Section 1.1938, G. C., where it is shown that the corporation has no legal directorate, there being but four members on the board; that no meetings óf the board of directors or stockholders are called or held; that no dividends were ever declared, the business being conducted by the two principal stock holders, who divided the profits equally between them; that one of the two principal stockholders has deserted the business and is -conducting a similar business of his own; and that the company has no place in which to do business, the lease on the building in which it operates having expired.
    Heard on error.

      Mather & Nesbitt, for petitioner.

      Edward S. Sheclc, for respondent.
   Cushing, J.

September 20, 1919, an application was made for dissolution of the Waldorf Amusement Company, a corporation organized under the laws of Ohio.

The charter of the corporation was issued by the state May 10, 1913. The purposes for which the corporation was formed were buying, selling, dealing in and handling theatrical supplies, merchandise and material, and for the purpose of engaging in the business of exhibiting motion pictures at such place or places in the state of Ohio as may be determined upon by the corporation.

From its organization the corporation operated a motion picture theater at 47 South Main street, Akron, Ohio, under the name of the Waldorf Theater Company. In 1915, Charles A. Barbian and Robert L. Miller each purchased 47 3-4 shares of the common stock of the company. Miller transferred one share to his wife, Theresa Miller; Barbian transferred one share of stock to R. H. Nesbitt; and W. W. Dixon owned 4 1-2 shares.

Miller and Barbian were elected and qualified as directors September 1, 1915. On September 13, 1915, at a meeting of the board of directors, R. L. Miller was elected president; T. G- Miller, vice-president; and C. A. Barbian, secretary, treasurer and manager.

The regulations of the corporation provided that the annual meeting of the stockholders shall be held on the third Tuesday in June of each year. The record discloses that after September 13, 1915, there was no meeting of either the stockholders or directors called or held. Shortly after that date, the 4y2 shares of stock owned by Dixon, were purchased by the corporation and held as treasury stock. After the purchase of this stock, the board had but four directors, two representing the Miller interests and two representing the Barbian interests. For about two years, beginning September, 1915, Miller and Barbian devoted all their time to the business of the corporation. Each had a drawing account of $25 per week. The corporation did not declare any dividends. The profits, which were considerable, were divided equally between Miller and Barbian from year to year. Some time in 1917 Miller dropped out of the management of the business and devoted his time ta a business known as the theatrical supply business. Whether that business was a competitor of the corporation, under the provisions of its charter, “buying, selling, dealing in and handling theatrical supplies,” etc., was not argued and will not be here considered.

The effect of his act was to cast upon Barbian the entire management of the business of the corporation. He assumed the duties and continued as manager from the time Miller left the business until the receiver was appointed. Miller continued to receive $25 weekly and one-half of the net profits of the business.

The corporation did not own any real estate. It operated its business in a leased building. The lease expired October 31, 1919. On August 14, 1919, the owners of the property notified the corporation that it would not renew the lease. The provision of the lease with reference to the renewal was:

“At the expiration of the term of this lease in case the first party, or their assigns, desire to further lease said property, said first party shall give said second party, or their assigns, the first opportunity to further lease said premises on such terms as the parties hereto may mutually agree upon.”

This provision did not give- the corporation any right of renewal.

While it was within their power, the stockholders of the corporation have not elected a fifth director, as required by law, and either by wilful misuse or nonuse of their power have rendered the corporation nugatory.

The situation presented to the court of common pleas on the hearing of the case was that the corporation was without a legal directorate, or a building in which to operate its business. It could not act to protect its property, interests or business. The refusal of the stockholders to agree on a fifth director left the corporation and its business at the mercy of the owners of the leased property. The corporation could be dispossessed at any time, and when in the street neither its property nor business would be of any value. The corporation had made and is making money. There are no creditors, nor third persons whose rights must be protected.

This action is brought under .Sec. 11938 G-. C. The owners of more than one-third of the capital stock seek to have the corporation dissolved.

The only other questions to be considered are:

First. Is it beneficial to the interests of the stockholders that the corporation be dissolved?

Second. Are the accomplishments of the purposes of the corporation impracticable ?

It was the intention of the legislature in enacting this statute to provide a method for protecting the stockholders by dissolution of the corporation, when it appears reasonably necessary for their ultimate best interests. This is especially true when the acts of the stockholders are such that the corporation can not function and it is certain that a continuance of the corporation will cause a loss of its business and a sacrifice of the property of the corporation.

Miller’s conduct in deserting the business, engaging in a business that the corporation was authorized to carry on, and his attitude toward the corporations, as gathered from his testimoney and the record, impress us that it must have been his intention to cause the corporation and the other stockholders trouble and loss. He knew that the business of the corporation could not be carried on without a house in which to operate and that the corporation could not act without his cooperation, and, notwithstanding the argument of counsel that the lease contained a privilege of renewal, its provision, above quoted, did not give the corporation the right to renew.

The impression gathered from the record and the trial of the ease is that Miller was not working for the interests of the corporation, of its stockholders.

The statutory proceedings with reference to an inventory, a statement of the capital stock, giving the names of the stockholders, number of. shares, amount paid in, the statement of the encumbrances of the property of the corporation, the appointment of a referee or master, the hearing provided by the statute, the referee’s report to the court, together with his findings, the appointment of the receiver, and in fact all the requirements of the statute have been complied with.

‘‘Internal dissensions between the stockholders which are of that grave and serious character which naturally interfere with or retard its management in the legitimate prosecution of its business or the reasonable discharge of its duties to the public, necessarily affect the interests of all the stockholders of the corporation to their prejudice, which would warrant the court under the statute to dissolve the corporation.” Mansfield, Ry., Light & Power Co., In re, 3 Ohio App., 253, 295.

■ While no rule can be stated by which to determine what will constitute a sufficient cause for the dissolution of a corporation under the statute, it may be said that the condition of the corporation, and the possibility or impossibility of its being carried on with equal justice to all the stockholders, will largely determine the nature of the decree.

The acts and conduct of the stockholders in this case are of such a grave character as to warrant an order dissolving- the corporation.

The judgment of the court of common pleas will therefore be affirmed.

Dunlap and Vickery, JJ., concur.


author: Houck, J.

text:
    INJURIES FROM FALLING ON A SLIPPERY STREET.
    Court of Appeals for Muskingum County.
    The City of Zanesville, Ohio, v. Eva Goodrich.
    Decided, April 16, 1920.

      Municipal Corporations — Pedestrian Injured by Fall Caused by Alleged Defect in Street — Effect of Failure to Charge Contributory Negligence — Charge of Court.

    1. In an action against a municipality for personal injuries alleged to have been suffered by reason of defect in a street, the quest1'on whether the defect complained of was of such a nature as to render the city liable is one for the jury under proper instructions ■by the court.

      2. In the absence of an allegation by the city of contributory negligence on the part of the plaintiff or a request to the trial judge to charge the jury on the subject of contributory negligence, prejudicial error can not be claimed because of such onrssion notwithstanding there may have been evidence tending to establish contributory negligence.

      T. F. Thompson, for plaintiff in error.

      A. A. George, contra.
   Houck, J.

This is an error proceeding and comes into this court from the common pleas court of Muskingum county. The parties here stand in the reverse order from where they stood in the court below.

The action in the lower court was one for personal injuries to plaintiff below claimed to have been caused by a defect in a certain street in said city of Zanesville, Ohio.

The suit was tried to a jury and a verdict returned in favor of the plaintiff below in the sum of $2,300. Motion for new trial was filed, overruled, and judgment entered on the verdict. .

It is here sought to reverse the judgment below for three reasons:

1. That there was no defect in said street sufficient to render the city liable.

2. That when defendant in error went upon said slippery bank and street, she did so at her own risk.

3. That the court should have directed a verdict for the city, because plaintiff’s own testimony showed contributory negligence on her part.

We have read all the testimony, as contained in the bill of exceptions, in this case, and we find that the first claim for a reversal of the judgment below is not well taken, because the question as to the defect and the extent thereof was one of fact to be determined by the jury under proper instructions from the trial judge. We find from the evidence that the claim of plaintiff was supported by at least some evidence on each and every material allegation contained in her petition and which was necessary to be established in order for her to recover.

As to the second alleged error. This involves a question of fact which was to be determined by the jury under all of the evidence, and therefore the doctrine of assumed risk could not and did not apply.

Coming now to the third claim of error, that the plaintiff was guilty of contributory negligence. There was no allegation of contributory negligence in the answer of the defendant below, the plaintiff in error here, and the record fails to show that any request was made of the trial judge to charge the jury upon the question of contributory negligence. Therefore, plaintiff in error having neglected and failed to request the trial judge to charge upon the question of contributory negligence, it follows that prejudicial error in this regard can not now be claimed, even had the evidence offered tended to prove such contributory negligence.

Negligence and contributory negligence are governed by the same rules. Neither is presumed. Although plaintiff's evidence 'in the trial below might have created an inference of contributory negligence on her part, yet, contributory negligence not having been plead in the answer, and no request having been made of the trial judge to charge upon it, even though it might be developed in the evidence, plaintiff in error can not now claim any prejudice thereby.

But passing these questions and going directly to the evidence in this case, we find the great weight of it in favor of the plaintiff below. The jury having passed upon all questions of fact, under proper instructions from the court, and found in favor of the plaintiff below, the judgment in this case should not be disturbed unless it clearly appears that it is against the manifest Aveight of the evidence; and this we do not find.

We have examined all of the alleged errors as set out in the petition in error and find none of them well taken.

It therefore follows that the judgment of the common pleas court should be affirmed.

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


author: Mauck, J.

text:
    STRICT COMPLIANCE WITH STATUTORY PROVISIONS REQUIRED TO SECURE A REFERENDUM.
    Court of Appeals for Lawrence County.
    The Ohio Electric Railway Company v. Eugene Haggerty, Auditor.
    Decided, March 11, 1921.

      Municipal Referendum^-Restrictive Feafoires Intentionally Provided— Power of so Small a Minority over Legislation — May be Exercised Only by Strict Compliance with Statutory Requirements — Knowledge of the Petitioning Electors Must be Attested.

    1. The power of a minority of the electors to force proposed legislation to a referendum includes the power to suspend such legislation until the next regular election and can only be exercised by • fully complying with all the provisions prescribed for such referendum.
    2. The provision of the statute, Sections 4227-4, 5, 6, requiring each part of a petition for a municipal referendum to contain an affidavit that the petitioning electors signed such petition with knowledge of the contents thereof is mandatory.

      •Johnson & Jones for plaintiff.

      J. 0. YSes for defendant.
    Heard on Appeal.
   Mauck, J.

This is an action to enjoin the holding of an election at which it is sought by referendum to submit to the electors of the city of Ironton, for tbeir approval or rejection, an ordinance affecting the contractual relations of the plaintiff herein in its operation of a street railway in that city. The question at issue is whether or not those seeking the referendum have complied with the reauirements' necessary to secure the same. The petitioning electors filed with the city auditor a petition which contained the number and title of said ordinance, and which petition was signed by a sufficient number of electors to secure the desired referendum. Attached to the petition was the following verified statement : __

‘ ‘ The State of Ohio, Lawrence County: ss
“Before me, the undersigned, notary public within and for said county, personally appeared Thomas L. Collett, who being duly sworn declared that lie is an elector of the city of lronton, Ohio; that he signed the foregoing petition; that he saw the several perons whose names are signed to said petition sign the same, arid that all of the said names were signed in his presence; that he verily believes that all of the persons whose names are signed to said petition are electors of the city of lronton. ’ ’

The governing statute under which this petition is filed, and by which must be determined the sufficiency of the steps taken by the petitioners, is Section 4227-4, G. C., and in part reads as follows:

“Each part of such petition shall contain the affidavit of the person soliciting the signatures to the same, which affidavit shall contain a statement of the number of signers of such part of such petition and shall state that to the best of his knowledge and belief each of the signatures contained on such part is the genuine signature of the person whose name it purports to be, and believes that such persons are electors of the municipal corporation and that they signed such petition with knowledge of the contents thereof.”

It is apparent that the affidavit above quoted is not in exact compliance with the statute, in that it does not show that the petitioners “signed such petition with knowledge of the contents thereof.” The difference between the affidavit made and the requirements of the statute seems slight and is, confessedly, technical. But the question is not to be disposed of by describing -it as technical. If the General Assembly has prescribed a condition that must be fully complied with before a referendum is had, the province of the court is limited to ascertaining whether that condition has been met. The legislative power of a city is primarily vested in the city council. (Section 4206, G. C.) An ordinance duly passed by the council becomes effective thirty days after its passage. (Section 4227-4, G. 0.) Such legislative act is nullified if, upon a referendum, it fails to be approved by a majority of the electors voting thereon. Cure was taken by the General Assembly, as will be hereafter pointed out, to protect the voice of a majority, once an election is had, from being stifled by technical objections. The power and rights of a majority duly expressed at an election, however, are not to be confused with the power and rights of a minority seeking an election. It is not a majority, but ten per cent of the voting population that calls a referendum. This minority of one-tenth of the voters, by the filing of a proper petition, suspends the legislative action of the council until the next regular election. That is, this minority is given the power to suspend the legislative power of the council representing all the people for a period as short as forty days or as long as thirteen months and more. This extraordinary power, given so small a proportion of the voting public, it would seem, is not to be exercised by it except by a full and strict compliance with the statute from which that pow'er is derived. It is a grant of .a special right to the minority and can not be enlarged by construction.

“Where a statute confers a new right, privilege or immunity the grant is strictly construed and the mode prescribed for its acquisition, preservation, enforcement and enjoyment is mandatory.” Sutherland on Statutory Construction, 458.
‘ ‘ Every provision of the Constitution as to initiative and refer-’ endum is mandatory, ,and requires that every safeguard against irregular and fraudulent exercise be carefully maintained.
“A referendum petition must bear the affidavit of the circulating solicitor, who by implication must be an elector of the county in which he circulated the petition, and signatures must be excluded unless the affidavit affirmatively show's that he wms such an elector.” Thompson v. Vaughn (Mich.), 159 N. W. 65.

The history of the statute justifies the view above suggested. The first act providing for a referendum in municipal legislation wras passed in 1931: (102 O. L., 521). This act did not contain the restrictive features quoted above, and no reason is now apparent why the petition filed wdth the city auditor in this proceeding would not have been sufficient, in form under the law oí! 1931. In 1913, however, the General Assembly saw- fit to revise the whole statute providing for and regulating the municipal initiative and referendum. This was not required by the Constitutional amendment of 1912, but was occasioned by it. Now an amendatory act is construed by a definite rule. It is presumed that when the General Assembly deliberately alters an existing statutory provision it thereby expressly declares that a different rule of action is to prevail. In this case it found that the then existing law did not compel those seeking a referendum to file an affidavit showing that those signing the petition did so with knowledge of its contents. The General Assembly, seeking to protect the public from the filing of ill-considered petitions, after two years experience inserted this provision. And we are bound to assume that it did so with the intention of having this and all the other newly prescribed conditions complied with be • fore the legislative powers of the city could be suspended.

“The presumption is that every amendment of a statute Is made to effect some purpose.” Lytle v. Baldinger, 84 O. S., 1, 8.
“The old law should be considered, the evils arising under it, and the remedy provided by the amendment, and that construction of the amended act should be adopted which will best repress the evils and advance the remedy. * * * It will be presumed that the legislature in adopting the amendment intended to make some change in the existing, law, and therefore the courts will endeavor to give some effect to the amendment.” 36 Cyc., 1165.

Section 1-f, of Art. II, of the Constitution provides that the powers of the initiative and referendum reserved to a municipality shall be exercised in the manner provided by lawr. ‘ ‘ By law ” is meant by statute law in this and the accompanying sections of the Constitution. The referendum in question is, therefore, not governed by the Constitutional provisions to which we have been cited, but by the statute aboA^e referred to. The Constitutional provisions are, hoAvever, of significance. The amended act for a municipal referendum was passed after the Constitutional amendment providing for a referendum of state legislation was adopted. It- Avas deemed undesirable, in adopting the Constitutional provision that state legislation should be suspended and a referenHum had iby securing the casual signatures of voters unacquainted with the purport and possible effect of the proposed referendum. This was deemed so important that it was not left to mere statute, nor was it left' to be determined by the courts upon extrinsic evidence that the voters were correctly advised of the object of the proposed referendum. It was written in the Constitution itself that one of the conditions precedent to an election was that there be attached to the petition an affidavit stating, inter alia, the belief of the affiant that each signing elector so “signed said petition with knowledge of the contents thereof.(.Article If, Section 1-g, Constitution). This provision, we think, has both by analogy and by direct pronouncement of the Supreme Court been determined to be mandatory.

In State v. Graves, 90 O. S., 311, the Supreme Court was considering the section of the Constitution above referred to. A petition had been filed containing some genuine and some .fraudulent signatures. The •affidavit was regular in form. A liberal construction of the provision would have required that the undoubtedly genuine signatures be given consideration. The court did not, however, take that view, but said that the efficiency of the petition depended upon the affidavit containing certain specified things, among them being a statement that the signers of the petition had knowledge of its contents. The court said:

“These petitions and each separate part thereof depend for their efficiency and their validity upon the affidavit of the circulator that each of the signatures attached to such part was made in the presence of affiant; that to the best of his knowledge and belief it is the signature of the person it purports to be; that he believes the person who signed it to be an elector; that he signed the petition with knowledge of the contents thereof; that each signer signed the same on the date set opposite his name. ’ ’

Another of the terms of Section 1-g, Art. II, of the Constitution is that the name of signers to a petition for a state referendum shall 'be written in ink. We can not say that that provision is mandatory and then say that the provision requiring the affidavit to show that the signers of the petition signed with knowledge of its contents is not mandatory. The two requirements are in pari materia and evidently of equal dignity. Now how does the Supreme Court treat the requirement that on a state-wide referendum the signatures shall be written in ink? We think the answer to that is found in State ex rel Smith v. Lloyd, 93 O. S., 20. In that case the charter of the city of Columbus required that “each signer to a petition shall'sign his name in ink or indelible pencil.” If a provision of that character in the charter of the city of Columbus was mandatory such a provision in the Constitution of Ohio ought to be of an equally imperative nature. So it is interesting to observe that the Supreme Court said of this provision in the Columbus charter:

“Such provision controls and that requirement must be regarded as mandatory, and therefore signatures not in compliance therewith need not be, and should not be considered or counted in determining the sufficiency of the nominating petition.”

This case, of course, is not cited for the purpose of saying that the petition in the instant ease should have been signed only in ink, but is cited for the purpose of showing the significance given by the Supreme Court to provisions of the same character as that involved in the case at bar.

When, therefore, in 1914, the General Assembly, charged with the duty of safeguarding the municipal referendum, observed the restrictions on the exercise of the state-wide referenium placed in the Constitution by the people themselves, it concluded to change the law governing the municipal referendum by placing similar provisions in the statute governing the same. It thereupon wrote some, but not all, of those safeguarding constitutional provisions into this statute, and among others so taken from the state Constitution was the provision in cpiestion in this case. In our opinion there is no doubt that the effect intended, and the effect accomplished, was to make this provision as mandatory on a municipal referendum as was the identical Constitutional provision on a state-wide referendum. This view is borne out by a further provision in the statute.

The section of the Constitution above referred to reeognizeo that there was a difference between the rights of a majority as expressed at an election, and the rights of a minority to secure. such an election. It accordingly provided that after a favorable vote at an election an insufficiency in the petition should be treated as inconsequential. The Constitution thus drew its own distinction between the times when a provision should be mandatory and when not. So long as a minority sought to suspend legislation and secure an election the conditions precedent must •be fully met. If, however, the sufficiency of the petition be not challenged and the election held, then, the majority having spoken, the result is not to be impeached by any irregularity in the proceedings designed to obtain that election. This identical provision was borrowed from the Constitution by the General Assembly and placed in the governing statute. The provision in the statute reads:

“No ordinance or other measure submitted to the electors of any municipal corporation and receiving an affirmative majority of the votes oast thereon, shall be held ineffective or void on account of the insufficiency of the petitions by which such submission of the same shall have been procured, nor shall, the rejection by a majority of the votes cast thereon of any ordinance or other measure, submitted to the electors of such municipal corporation, be held invalid for such insufficiency. ’ ’

Why did the General Assembly pass this amendatory act? Tf these conditions precedent had been directory only there would have been no occasion to have protected the election from the kind of attack contemplated in the provision just quoted. The General Assembly passed this amendatory provision because it desired to indicate the time when a failure to comply with the governing statute had been waived and when the legislation haa proceeded to a point where technicalities could no longer be invoked. By thus prescribing when objections to petitions could no longer be effective it indicated, conversely, when they would be effective. By specifically making the referendum impregnable after election it left it open to assault before election. -

It follows, therefore, that the petition filed with the auditor in this ease was insufficient because the accompanying affidavit did not show that the signers to such petition signed the same with knowledge of the contents thereof; that this provision is jurisdictional; that the omission can not be supplied by extrinsic evidence, and the court has no power to hear such evidence.

The prayer of the petition is, therefore, granted.

Sayre and Middleton, J. J., concur.

       Motion to require tke Court of Appeals to certify its record in this case overruled -by the Supreme Court, March 11, 1921,


author: Houck, J.,

text:
    ANTE-NUPTIAL CONTRACT HELD UNFAIR TO THE WIFE.
    Ella Speckman v. Cordia Speckman et al.
    Court of Appeals for Coshocton County.
    Decided February 25, 1921.

      Burden of Establishing an Ante-Nuptial Contract — Entire Fairness and a Full Disclosure of Property Interests Must be Shown — Wife Not Barred from Claiming Dower, Unless.

    1. In an action .by a widow for an award of dower in her deceased husband’s estate, which award it is claimed is barred by an ante-nuptial agreement, the burden of upholding the contract is on the ■defense.
    2. Where such a contract is in contemplation, it is the duty of the dominant party to make a clear and complete disclosure of all facts pertaining to the subject-matter of the contract and thereby place full information as to the property rights and interests involved in possession of the opposite party.
    3. An ante-nuptial contract which fixes the interest of the wife at thirteen hundred dollars in the thirty-one thousand dollar estate of her husband and bars her from dower and all other rights in the estate, which was signed by the wife without disclosure as to the property rights and interests of the husband, at a time when she was forty-six and he sixty-four years of age, and with unquestioning confidence in his disposition to deal fairly with her, will not be upheld by the courts where the husband made no further provision during his life time for his said wife.

      G. E. Bell, for plaintiff.

      S. H. Nicholas and T. H. Wheeler, for defendants.
   Houck, J.,

This is an action for dower in which the plaintiff claims that as the surviving widow of Henry Speekman, deceased, she is entitled to dower in valuable real estate located in Coshocton county, Ohio.

The defense is that plaintiff barred herself of any dower in said real estate by the terms and provisions of an ante-nuptial contract, entered into between the said plaintiff and Henry Speck-man, in which plaintiff was awarded, in lieu of dower and all other rights as widow of Henry Speekman, deceased, the sum of $1,000, certain household goods and the use, so long as she remained his widow, of a house and lot in the village of New Castle, Ohio.

The plaintiff’s reply admits the signing of the ante-nuptial contract at the instance and the solicitation of the deceased spouse; that at the time of signing said contract she was betrothed to wed said Henry Speekman, reposed full confidence and trusted him to deal fairly and reasonably with her, and that the terms of the contract were dictated exclusively by him; that she had no knowledge of the extent or value of his property, nor the extent or value of the rights proposed to be released by the contract, but relied solely upon her prospective husband's advice in signing same; that he did not disclose to her or inform her of the nature, extent or value of his property or the interest which would be released by the contract, and that she was not advised or counseled by anyone else in the premises; that at the time of said marriage and at all times during the coverture he was the owner of an estate valued at fifty thousand dollars and that the provision made for her did not exceed thirteen hundred dollars; that at the time she had no property and therefore the decedent released nothing by the contract.

Upon the issues raised by the pleadings and evidence offered to support same, as contained in the transcript of the testimony taken in the common pleas court, together with certain facts agreed to in open court by counsel in the trial in this court, the case was submitted here for determination. The material facts are as follows:

The parties were engaged to marry when the ante-nuptial contract was made; the prospective husband’s estate consisted1 of real estate valued at about twenty-five thousand dollars, and the personal estate six thousand dollars; the prospective wife’s estate consisted merely in a dower interest in her deceased husband’s house and1 lot of the value of one hundred dollars; she was forty-six years old, and the husband sixty-four; she resided in the village of New Castle for many years, and the husband resided within two miles of said village until the last four years, when he removed to New Castle; the ante-nuptial contract was entered into on the day of the marriage.

The record is silent as to whether or not plaintiff knew the extent and value of the property of Henry Speckman at the time of the making of the ante-nuptial contract in question. We find no evidence showing, or even tending to show, that Henry Speckman, in iany way, manner or form, disclosed to plaintiff the nature and extent or value of the property owned by him at the time of or prior to the execution of the contract now before us under review, and during his lifetime, and prior to his death, he made no provision for his wife to share in his property in any way, save and except as contained in the ante-nuptial contract.

Question: Under this ante-nuptial contract, the conceded and proven facts in the case, and the law applicable thereto, is the plaintiff entitled to dower in the real estate, of which her husband, Henry Speckman, died seized?

The law is well settled that a wife can be barred of her right of dower in the real estate of which her husband dies seized by a fair and just ante-nuptial agreement, by which some adequate substitute is given to her for such release of that right.

Courts of equity will carefully scrutinize all such contracts to see if they are fair in their terms and provisions for the wife, and were entered into by such wife with full and complete knowledge of all the facts and of her rights in the premises, and without the exercise of undue pressure or influence upon her.

It is essential that a court knows that an intended wife was free.to act, and that no advantage was taken of her by her intended husband in securing a contract for a marriage settlement before holding such contract valid, if by so doing she would be barred of her dower rights.

Lord Bacon said as early as 1641 that it was then “the common by-word in the law that the law favored three things, (1) life, (2) liberty, (3) dower,” and from those early times to the present day the, right of dower has always been highly esteemed in law, and upheld by our courts unless the opposite be clearly shown.

The relation existing between persons who have entered into an agreemnet to marry is of a confidential character, and it is the duty of the dominant party — in the instant case, the intended husband, Henry Speckman, — to make a full and clear statement of all facts which related to the subject-matter of the contract, and which would fully and completely put his intended wife in the full possession of the value and extent of all hio property rights and interests.

Not only this, but we find and hold the law to be that such party is required to fully establish the agreement and remove from it every element of doubt. Hence, one standing in a confidential relation, who conceals, or fails to make a full disclosure of facts which are within his knowledge, knowing the other party to be ignorant of those facts, is guilty of fraud, both in law and equity.

Dower is an ancient and cherished right, now fully established and guaranteed by statutory law, and is clearly, not only under the law but as a matter of public policy, safeguarded by the courts.

AVe hold that the burden of upholding this contract, which attempts to bar the plaintiff from dower in her husband’s real estate, is, under the facts in this ease, upon the .defendants. They must show that it is equitable, or, if not, that a full disclosure was made by Henry Speckman to his then intended wife, the plaintiff, of the amount, extent and value of his property at the time said contract was entered into; and further, that she has received such benefits and rights, under said ante-nuptial contract, as to estop her from now claiming dower.

We have no hesitancy in saying that, under the issues raised by the pleadings, the proven and conceded facts in the case, the plain terms and provisions of the written contract between Henry Speckmon and his wife, and the rules of law herein laid down, which we find and hold to be clearly applicable and determinative of the case at bar, plaintiff is entitled to all the relief prayed for in her petition.

The rules of law laid down in the following cases have been very helpful to us, and have materially aided us in reaching the conclusion which we have in the present case:

Duttenhofer v. Duttenhofer, 12 Ohio Decisions, 736; Stotler v. Stotler et al, 19 N. P. (N. S.), 369; Johnson v. Johnson, 1 O. C. C., 521; Grogan v. Grogan, 27 O. S., 55; Mintier v. Mintier, 28, O. S., 307.

Judgment and decree for plaintiff, as prayed for in her petition, and ease remanded to common pleas court for execution of this judgment.

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


author: Allread, J.

text:
    RECEIVING STOLEN PROPERTY. .
    Court of Appeals for Clark County.
    William P. Burke v. State of Ohio.
    (Decided January 15, 1920.)

      Criminal Law — Indictment Charging Receiving Stolen Property — Description of the Property — Averment as to Ownership — Inference of Quilt Derived from Surrounding Circumstances — Charge of Court.

    1. Under an indictment charging the receiving of stolen property, the description of the property is sufficiently specific where it is described as “five automobile tires.”
    2. The averment and proof of ownership in such a case is sufficiently definite when placed in the railway company in whose possession the property was at the time it was stolen, as distinguished from an allegation of ownership in the consignor or the director general of railroads at that time operating the road in question.
    3. It is not error in such a case to instruct the jury in effect that a conviction may be based on an inference arising from circumstances surrounding the case.

      McGr&w <& Leybourne, for plaintiff in error.

      Thomas F. Hudson, Prosecuting Attorney, and John W. C-ole, contra.
   Allread, J.

The plaintiff in error was indicted and convicted of receiving stolen property.

The regularity of the conviction is challenged chiefly upon the following grounds: (1) insufficiency of the indictment: (2) insufficiency of averment and proof as to ownership: and (3) error in charge.

The description of the stolen property in the indictment is “five automobile tires.”

The objection to the indictment was first made upon motion at the conclusion of the state’s evidence. It is also raised by motion in arrest of judgment. Counsel for plaintiff in error rely upon the case of Redman v. State, 35 O. S., 81, in which it was held that a descripttion of “a certain lot of dry goods,” is insufficient in an indictment. We think that case is not parallel. If the present indictment was of “a lot of automobile supplies” it would be more nearly parallel. Ia the opinion in the Redman case the doctrine that a description of “one horse, one ox,” it is said would be good. This statement would apply to the present case. While the description here might have been made more definite by the addition of manufacturer’s marks, yet it was not necessary any more than additional description would be required in case of a horse or of an ox

In the case of Goddall v. State, 22 O. S., 203, a description in an indictment of “one silver coffee pot, one silver tea pot,” and so forth, was held sufficient, although that question was not raised or discussed.

While the common law was strict on the question of description yet under the liberality of our statute the common law has been greatly modified. The lack of more extended description did not prejudice the plaintiff in error. The five automobile tires, in controversy were in the possession of the plaintiff in error and -there was no uncertainty in the evidence as to their identity. We think the indictment was sufficient. 25 Cyc., 75, 82.

There is also a question as to the-averment and proof of-owner-! ship. The indictment contained the averment that the property was owned by the C. C. C. & St. L. Railway Company. It is contended that it should have been averred that it was owned either by the Westeott Company, the consignors, or by the Director General of the Railroads of the United States. It appears that the property was stolen while in the possession of the railway company. It was not necessary to aver ownership in the consignor. The railway company having lawful custody of the property for the purpose of transportation was the owner as against the parties charged with its larceny. Huling v. State. 17 O. S., 583.

Notwithstanding the control of the railway companies by the Director General such companies are still in existence and have the right to own and hold property. The Director General employed the railway companies as agents and instrumentalities in conducting the business. As between parties charged with larceny and the railway company operating under the Director General, it would be sufficient to charge the ownership in the railway company. The court is not required, to go behind the possession and lawful custody of property in a crimnial action for larceny. See 25 Cyc., 89. Besides the indictment was sufficient as it charged the ownership in the railway company. No real difficulty appears upon the face of the indictment and the question would arise upon the trial as to a variance. The Statute, Section 13582 (G. C.), relieves against any technicality in respect to variance where such variance is not prejudicial to the party accused. We think the trial court was justified in holding this defect, if it was a defect, non prejudicial.

The trial court charged the jury as to proof or actual knowledge, and added the following paragraphs.

‘ ‘ The guilty knowledge of the defendant upon this subject may have been inferred from the facts, or if at the time of receiving the property he knew of defects which in your judgment would impress an ordinary and reasonable man with the knowledge that the property had been stolen.
“If, therefore, you find the defendant received the property under circumstances such as would cause any man of ordinary observation, intelligence and caution, to know that it had been stolen, you would be authorized in finding a verdict of guilty, if the other elements of guilt have been established beyond a reasonable doubt.”

These charges as to the inference arising from circumstantial evidence is objected to by counsel for the plaintiff in error. Tt is claimed that only actual knowledge fulfills the statutory definition of the crime, and that the inference which a man of ordinary intelligence and caution would deduce from a given set of circumstances might not be sufficient- to prove actual knowledge in this specific case.

We are unable to find any decisions in this state upon this precise question.

Counsel for plaintiff in error cite the ease of Cohn v. The People, 197 Ill., 482. We think this case does not support his contention. The syllabus is as follows:

'“Any instruction upon the subject of receiving stolen property is erroneous which tells the jury that absolute knowledge by the accused, or even belief, that the goods were stolen is not necessary if the evidence be sufficient to induce a person of ordinary observation to have such a belief.”

Charges similar to those given in the ease at bar are approved in the case of Commonwealth v. Leonard, 140, Mass., 473; State v. Dibenedetto, 82 N. J. L., 168, affd, 83 N. J. L., 792; Gassenheimer v. United States, 26 App. Cas. (D. C.), 432; 3 Blashfield’s Instructions to Juries, 3815-3816.

There is some force in the claim of counsel for plaintiff in error that actual knowledge, which is prescribed by the statute creating the offense, is not answered by an inference to be drawn from circumstances by any person other than the accused himself; nevertheless we are of the opinion that the weight of au thority sustains the charge as given to the jury.

We have considered the other assignments of error, but have reached-the conclusion that there is no error prejudicial to the plaintiff in error and that the judgment should- be affirmed.

Ferneding and Kunkee, J. J., concur.

       Motion to require the Court of Appeals to certify its record in this ease overruled by the Supreme Court, April 6, 1920.


author: Meals, J.

text:
    TRIAL OF DISPUTED TITLE TO PROPERTY CLAIMED BY ESTATE OF DECEDENT.
    Jennie Tibbott, Admrx. of the Estate of James Rees, Deceased, v. Mrs. Frances Cadisch.

    Court of Appeals for Cuyahoga County.
    Decided, March 27, 1916.

      Jurisdiction of Prohate Court — Where Property Rights of Decedents are Involved — Ohio Procedure Unlike that of Other States.

    Sections 10673 et seq, General Code, provide for a trial in the Prohate Court of the right of property, title to which is claimed to he in the estate of a decedent; and a judgment entered by that court in .proceedings pursuant to said act may he pleaded in bar of another action to try title to or right of possession of the property involved in such proceeding.

      Kerruish, Kerruish, Ilart-shorn & Spencer and E. J. Oherney. for plaintiff in error.

      B. J. Selzer, for defendant in error.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 18, 1916,

   Meals, J.

On the 20th day of January, 1915, the plaintiff in error instituted proceedings in replevin against the defendant in error in the municipal court of Cleveland for the recovery of certain personal property, to-wit: one diamond ring, one diamond stick pin, and sixty dollars in currency. Thereupon summons was duly issued by the clerk of the municipal court and placed in the hands of a deputy bailiff of said court for service. On the 22d day of January, 1915, said bailiff returned said summons endorsed as follows: “Received this writ January 20, 1915, and by virtue thereof I searched for the chattel property within described but failed to find the same. I served this writ on the within named defendant, .Mrs. John Cadisch, whose real name I found to be Frances, by delivering to her a true and certified copy thereof, with all endorsements thereon. Charles L. Selzer, Bailiff. By Ed. E. Peck, Deputy Bailiff.”

During the pendency of said action in the municipal court, to-wit, on the 22d day of January, 1915, the plaintiff in error duly instituted in the probate court of Cuyahoga county proceedings charging the. defendant in error with concealing, withholding and appropriating property to her own use in fraud of the rights of the administratrix and others interested in the estate of James Rees, deceased. Summons was duly issued and served.

On the 27th day of January, 1915, during the pendency of said replevin action in the municipal court, and without objection, a trial was had in the probate court of Cuyahoga county before the Honorable Alexander Hadden, judge of said court, on the merits of said complaint, and the judgment of said court — a jury having been waived — was entered for the defendant in said proceeding, the defendant in error in this action.

On the 5th day of February, 1915, a trial of said replevin action was had in the municipal court. At said trial the defendant in error offered in evidence the original papers and a certified copy of the docket entries of the proceedings had in the probate court, in support of a plea in bar to said action. This evidence was excluded by the court, and the trial resulted in a judgment for the plaintiff in error. This judgment was reversed by the court of common pleas. Error is prosecuted in this court to reverse the judgment of the court of common pleas.

One question only is presented for our consideration: Did the proceedings in the probate court constitute a trial of the right of property? If so, it is admitted that the municipal court erred in excluding the evidence offered of said proceedings in the probate court.

The act of February 26, 1813, supplementary to the act for (he settlement of estates of deceased persons, provided that “upon complaint of an executor or administrator before the probate court against any person suspected of having concealed, embezzled or carried away the property or effects of the estate, the parties suspected shall be cited to appear before the court and submit to an examination touching the matter of complaint.” It also provided that either party might examine .witnesses and required the court to reduce all such examinations to writing, to be signed by the parties and witnesses respectively, and file the same in the court. The act further provided that “if upon such examination the probate court shall be of opinion that the person or persons so accused is or are guilty of having concealed, embezzled or carried away any of the money, goods,” etc., of the estate, “the court shall forthwith render judgment in favor of the executor, etc., against such person for the amount or value of the money or goods, together with ten per cent penalty, which judgment, the act declared, shall be a lien upon his estate and be collected by execution.”

In Howell v. Fry, 19 O. S., 556, the constitutionality of this act was attacked, on the ground that it provided for a trial of the right of property to court and without the intervention of a jury. The court held the law unconstitutional, and in its opinion said:

“If the defendant denied the truth of the charge, he had a constitutional right to a jury trial, and could not be deprived of that right by this summary proceeding; in which no provision is made for a jury trial or for the right of appeal. The statutory provision authorizing a judgment can only be sustained as constitutional and valid in so far as it applies to a case where the defendant does not controvert the truth of the complaint.”

Thereupon the statute was amended so as to cure the defect found in it by the court in Howell v. Fry, supra. It is found in Sections 10678 et seq. of the General Code:

“Sec. 10673. Upon complaint made to the probate court or the common pleas court of any county, by the executor, administrator, creditor, devisee, legatee, heir or other person interested in the estate of a deceased person, or by the creditor of any devisee, legatee, heir or other person interested in such estate, against the executor or administrator of such deceased person, or against any person suspected of having concealed, embezzled, or conveyed away moneys, goods, chattels, things in action, or effects of such decedent, the court shall cite such executor, administrator or other person suspected, forthwith to appear before it to be examined, on oath, touching the matter of the complaint.
“Sec. 10674. "When complaint is made to the probate court and a jury is demanded by either party, the court may forthwith reserve the ease to the court of common pleas for hearing and determination, arid it thereupon shall proceed in all respects as though the complaint had been originally made therein.
“See. 10678. By the verdict of a .jury, if either party requires it, or without, if not required, the court shall determine whether the person or persons accused is or are guilty of either having concealed, embezzled or conveyed away- moneys, goods, chattels, things in action or effects of such deceased persons, and if found guilty, the amount of damages to be recovered on account thereof. In all eases except when the person so found guilty is the executor or administrator of such deceased person, the court forthwith shall render judgment in favor of the executor or administrator or if there be no executor or administrator in this state, in favor of the estate', against the person or persons so found guilty for the amount of the monyes or the value of the goods, chattels, things in action, or effects so concealed, embezzled or conveyed away, together with ten per cent penalty and all costs of such proceedings or complaint, which judgment shall be a lien upon the real estate of the person or persons against whom it is rendered within the county from the rendition thereof. If the party so found guilty is the executor or administrator of such deceased person, the court forthwith shall render like judgment in favor of the estate against him for such amount or value, together with penalty and costs as aforesaid.
“Sec. 10679. Such judgment shall be a lien upon the real estate of the executor or administrator, within the county from the rendition thereof. The probate court must forthwith remove such executor or administrator and commit the administration of the estate, not already administered, to some other person or persons. The executor or administrator so removed, shall not receive compensation for acting as such, and must be charged in his account with the amount of such judgment. His property also shall be liable for the satisfaction of the judgment on execution issued thereon by his successor, who, when the judgment is rendered by the probate court, must file a transcript with the clerk of the common pleas court and cause such proceedings to be had as are contemplated in the next following section.
“Sec. 10680. The executor or administrator in whose favor such a judgment has been rendered by the probate court, may forthwith deliver to the clerk of the common pleas court in the county, an authenticated transcript which the probate judge on demand of such personal representative shall make out and deliver to him. On such transcript the clerk forthwith must issue an execution of the common pleas court for the amount of the judgment and costs, and the costs accrued, or that may accrue thereon. Thenceforth proceedings on execution shall be the same as if the judgment had been rendered in such court. ’ ’

In our opinion the act now provides for a trial of the right of property, and a judgment entered by the probate court in proceedings before it pursuant to the provisions of said act, may be pleaded in bar of another action to try the title to or the right of possession of the property involved in said proceedings.

But few of the states have statutes on this subject similar to ours. Authorities, therefore, which might aid us in arriving at a correct conclusion in the case at. bar are not numerous. The statute of Missouri on this subject is similar in substance to that of Ohio, and the Missouri courts have held that it contemplates a trial of the right of property.

In Re Estate of Jacob Huffman, deceased et al v. William T. Huffman, 132 Missouri Appeals Reports, 44, paragraph 2 of the syllabus is as follows:

“In a proceeding under the provisions of sections 74 and 78, Revised Statutes 1899, interrogatories may be exhibited against the person cited and evidence heard on them to try the right of property, concealed or embezzled or otherwise wrongfully withheld by such person; the former rulings that such a proceeding was only to facilitate the discovery of hidden assets, preliminary to an action to recover them, and a showing, on the part of the person proceeded against, that they were held in good faith, would stop further proceeding, are unsound in principle and in conflict with the decisions of the Supreme Court.”

In the opinion the court say:

“The Missouri statutes dealing with the subject differ from those of ail the other states we have examined in essential particulars; chiefly in providing for a trial by jury of the issues raised. This provision * is not found in any of the statutes of other states cited infra, except Maryland (and we might add, Ohio) ; and. text-writers derive the proposition that the right of property can not be tried in a proceeding like this one, from eases in other jurisdictions. :>i * * But those cases, so far as the decisions are based on the lack of a statutory provision for a trial by jury, should be eliminated in considering the effect of our statutes. The opinions usually treat this omission as the decisive reason for saying property rights can not be determined. * * * In Maryland the Orphans’ Court of probate jurisdiction, in analogy to the old chancery practice, may refer the issues to a law court to be tried but can not try them itself. * * * Under statutes granting this privilege, it was held in a majority opinion, the jurisdiction of the Orphans’ Court was confined to determining whether or not the defendant had concealed the property mentioned in the affidavit, and if he openly admitted possession, but claimed title, his right could not be determined. A dissent was filed. Gilson v. Cook, Admr., 62 Md., 256. In'several states the sole aim of the law is the discovery of assets — not to compel the party in possession to turn over or inventory property, but to compel him to submit to an examination in order that his statements, and sometimes those of other witnesses as well, may be filed in writing as a basis for other proceedings to recover tlie property. * * * In New York the statutes expressly provide that if the defendant files a verified answer alleging ownership of the property, the proceeding shall be dismissed without further examination. * * * The Texas statutes pertain only to papers and documents belonging to the estate. * * # TL.e statutes of Arkansas, Utah and Nevada permit a summary order by tht court for the delivery of the detained property, but provide for no examination of witnesses or jury trial. * * * The following decisions held the purpose of the statutes dealt with was to provide a means of discovery, not recovery, of assets: Gardner v. Gillihan. 20 Ore., 598; and others. It will be seen from the foregoing summary of statutes and cases that the adjudications in other jurisdictions can lend little assistance in the attempt to ascertain the object and effect of our statutes, in consequence of the wider scope of the procedure these provide and the use of materially different language — language suggestive of an intention to create a new method of both discovery and recovery. It is worthy of note that in the statutes of 1845, where the proceeding was first authorized and presumably the policy of the Legislature put into effect, it is said if the defendant appears and in his answer to the interrogatories denies the right of the executor or administrator to the goods, chattels, money, etc., ‘the right thereof shall be tried by a jury; or, if neither party require a jury, by the court, in a summary manner, and judgment shall be rendered according to the right and for costs.’ This language imports a purpose to provide a method for determining the right of property as between the estate and the person accused of concealing or embezzling assets. The statutes of 1855 (Sec. 10) instead of saying the right shall he tried, say the issue shall be tried; meaning the issue of whether the property is concealed or embezzled. The present statutes cover assets concealed, embezzled or otherwise wrongfully withheld; and Sections 77 and 78 say the issue upon the interrogatories and answers filed, shall be tried by a jury, etc., and if the defendant is convicted, the court shall compel him to deliver the property detained; or, if he be an executor or adminisrtator, compel him to inventory it. In our opinion this legislation was not enacted merely to provide a method of investigating the good faith of a person who detains assets, but to provide, also a remedy by which detained assets could be brought quickly into the course of administration. The notion that the only object was to facilitate the discovery of hidden assets, preliminary to an action to recover them, is fallacious and founded on the decisions of jiirisdictions where statutes, enacted only to assist discovery, prevail; and which do not take care of the constitutional right of trial by jury in cases involving property rights, because no property rights are involved under said statutes, but only information. In this state a jury trial of the issues is allowed and also an appeal; thus preserving to a defendant all tbe rights he would enjoy in any other form of action. It is unlikely that this elaborate procedure was devised simply to discover assets. The purpose was broader — to expedite the administration of estates by affording a new and speedy remedy for collecting assets.”

On these considerations, we find no error in the record, and the judgment of the court of common pleas is affirmed.

Grant and Carpenter, JJ., concur.


text:
    ACTION TO VACATE JUDGMENTS.
    Court of Appeals for Knox County.
    James I. McCullough et al v. Edward F. Luteman.

    Decided June 2, 1919.

      Judgments — Proceedure in Actions to Vacate — Presumption Favors Validity of the Judgment Attached, Not Irregularity or Fraud— Weight of Evidence — -Discretion of the Chancellor.

    1. In an action to vacate a judgment the court will first determine whether ground exists for the vacation asked; and if the question is decided in the negative no necessity will arise for a decision as to whether the answer tendered by the petitioner contained a meritorious defense.
    2. In such a case every reasonable presumption favors the validity of the judgment, whether taken after process issued or by confession or warrant of attorney, and the sanctity which invests the judgment requires that before it can be disturbed the right so to do must be clear, the injury palpable and the evidence convincing.

      L. C. Stillwell, B. 0. Evans and Robert L. Carr, for plaintiffs in .error.

      James B. Graiham and W. A. Eosacle, contra.

       Motion to require the Court, of Appeals to certify its record in this case overruled by the Supreme Court, October 28, 19,19.

   Houck, J.

This action is one to vacate a judgment for $3,832, rendered in favor of the defendant in error, Edward F. Luteman, and against the plaintiff in error, James I. McCullough et al. Said judgment was entered on August 6, 1916, upon a cognovit note of the date of February 19, 1913.

On the 21st day of September, 1918, the plaintiffs in error, filed their petition in the common pleas court of Knox county, asking that the aforesaid judgment be vacated for the reason that it was obtained upon a cognovit note without summons being issued, and that said note was procured by said Luteman from them through fraud and false representations and without any consideration or value whatsoever. To this petition the said Luteman filed answer, being in substance a general denial.

At the time of the filing of the petition to vacate the judgment in question, the plaintiffs therein tendered their written answers, setting up several alleged defenses as against the cognovit note upon which judgment w>as taken.

Upon the issues thus raised the cause was submitted to the trial judge, who found hi favor of Luteman, and refused to vacate said judgment.

Counsel for plaintiffs in error, in their petition in error, set forth six reasons why the judgment below should be reversed, but in oral argument urge none but the following: An abuse of discretion on the part of the trial judge, and that the judgment is against the manifest weight of the evidence.

We have read all the oral testimony and documentary evidence, as contained in the sixty pages of the bill of exceptions, and from it we find that the trial court “let the bars down” in the way of admitting testimony tendered in the case, in its endeavor to get at the respective claims of the parties hereto, and to ascertain whether or not any of the legal rights .of the plaintiffs had 'been violated in the taking of the judgment now before us under review.

A proceeding to vacate a judgment is in its nature special, but is provided for by statutory enactment; and the court in its hearing of same must first try and decide the question as to whether or not any ground exists for the vacation of a challenged judgment. An inspection of the record will, in some instances, determine the question, while in other cases it is necessary to offer testimony. But in every case it is a question to be tried and determined by the court.

Section 11636, Gr. C., provides:

“The court must try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action.”

It will be observed that the preliminary question to be tried and passed upon by the court is whether or not grounds exist for the vacation of the, judgment attacked. If upon such hearing the court finds that no such grounds exist, that is the end of the case so far as the trial court is concerned. Therefore it would not be necessary for the court to pass upon the question as to whether or not the answer tendered by the petitioner contained a good and meritorious defense to the original action.

The aim and purpose of the statute just referred to, as well as the rule herein laid down, is to relieve courts from setting aside their judgments for mere technical reasons. However, in the case now before us, the judgment was taken by confession, on warrant of attorney, and since judgments by confession without antecedent process have no basis other than by statutory provision, which is in derogation of the common law, therefore, a strict compliance with the statute is essential, and courts exercise equitable supervision over judgments entered upon warrants of attorney, and should, in a proper case, and upon a proper showing, by motion or petition, vacate such judgments, in order that a trial of issuable facts may be had, as the ends of justice may require.

Yet -we hold the fixed rule to be that every reasonable presumption is in favor of the validity of a judgment, whether taken after process issued, or 'by confession on warrant of attorney; and no presumption of irregularity or frgud attaches to such judgment, but such claim, if established, must be by at least the weight of the evidence in favor of the attacking party.

After all, the question as to the vacation of a judgment addresses itself, in most cases, to the sound discretion of the chancellor, and such action will not be disturbed by a reviewing court except for a clear abuse of such discretion.

After a careful review of the record now before us, we are fully satisfied that the trial judge did not abuse his discretion, and that the judgment below is sustained by the great weight of the evidence. In reaching this conclusion we have kept in mind the fact that judgments of courts should and must have a large degree of sanctity attached to them, and before they can be disturbed the right to do so should be clear, the injury palpable, and the evidence convincing. Therefore, the party assailing a judgment, in order to obtain any relief, should make a clear case, and if a mixed case only is made, it is not sufficient.

In view of what we have already said it is manifest that upon the record here presented the judgment of the common pleas court should be affirmed, and it is the unanimous opinion of this court that it be done.

Judgment affirmed.

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


text:
    COMPETENCY OF TESTIMONY IN A PERSONAL INJURY CASE.
    Court of Appeals for Hamilton County.
    Cincinnati Traction Co. v. McKim.
    Decided April 19, 1920.

      Negligence — Women Thrown to Street While Alighting from Gar— Traction Employees Deny Knowledge of the Accident — Plaintiff Claims the Injury Necessitated an Operation — Competency of Her Testimony as to What the Surgeons Said as to Such Operation —Lay Witness May Not Give His Opinion as to Suffering or Injuries of Platntiff — Ansviers of Experts to Hypothetical Questions— ' Improper Reference by Counsel to Facts Not in the Record.

      .1. In an action for damages for personal injuries due to defendant’s negligence, in which plaintiff alleges that as a result of the in* jury received she was compelled to and did undergo an operation, it is error for the trial court to permit the plaintiff to state to the jury what operation the doctors told her they had to perform and what its effect would be.
    2. In such an action, a lay witness may testify to exclamations of pain and suffering made by the injured person in the presence of such witness, but he can not give his opinion as to the suffering and injuries received by the plaintiff.
    3. A witness called as an expert may answer hypothetical questions when the questions embody a statement of facts that there is some evidence in the record tending to establish, but in answering such questions he may not combine with statements of fact in the record matters known to him personally and not testified to.
    4. It is improper for counsel, in his argument to the jury, to make statements of fact concerning which no evidence was offered at the trial.

      Sherman T. McPherson, for plaintiff in error.

      S. A. Anderson and. Thos. L. Michie, for defendant in error.
   Cushing, J.

This ease is heard on error to the court of common pleas.

It is claimed that the defendant in error, Maud McKim, was returning from Chester Park to the Bethesda Hospital, at Oak street and Reading road, where she was residing temporarily. North of the intersection of these streets, she claims to have given a signal to stop the car; that it did stop at the usual stopping place; that while she was in the act of alighting the car suddenly started and she was thrown to the street; that the back of her head and her back struck the street in such a way that she was injured; and that she became sick and disabled as a result of said fall and was compelled to and did undergo an operation.

The answer of the company was an admission of its incorporation, its operation of the street railroad in question, and that it was a common carrier of passengers for hire. It denied that the plaintiff was injured as the result of any negligence ■ on the part of its conductor or motorman, and denied generally all the allegations of the petition not admitted. For a second defense, it pleaded sole negligence on her part.

One - of the issues made by the pleádings was as to the negligence of the defendant in starting its car, after it had come to a full stop, before plaintiff had time to alight.

Another question was whether or not the operation plaintiff underwent on February 26, 1918, was the result of the injuries, if any, she received on August 16, 1916, by reason of the negli- . gence claimed by her on the part of the defendant company, and also the measure of damage thus presented.

It was stipulated at the trial that so far as the company, this conductor, motorman or other employee knew, there was no accident at the time and place in question.

The only witness called by plaintiff to show how the acci-’ dent happened was Mary M. Troup. Miss Troup had accompanied her to Chester • Park. They were living together. No passenger was called to testify and, while it was stated that a third person assisted plaintiff from the scene of the accident to the hospital, the person’s name was not given, nor was he called.

Plaintiff wrote a letter on the day after the accident asking the company for damages. She filed an action against the company eleven days after the accident.

While there are numerous assignments of error, the principal errors complained of are that the court erred in the admission and rejection of testimony; that it erred in its charge; that the verdict is excessive and appears to have been given under the influence of passion and prejudice; and that counsel for plaintiff was guilty of misconduct.

At the trial plaintiff was permitted to state to the jury what operation the doctors told her they had performed, and what its effect would be. This was clearly error.

The doctors were permitted to answer hypothetical questions, which answers did not conform to the rule of hypothetical questions :

“Q. Doctor, assuming that the plaintiff, Miss McKim, on August 16, 1916, was a passenger on a car belonging to the defendant and undertaking to alight from the car, and while in the act of alighting, the ear suddenly started and she was thrown violently to the ground, striking on her back and head, and was confined in the hospital from August 16, 1916, up until the time you saw her on September 1, 1916, I will get you to state, whether the condition you found her in would be attributable to the accident I have just described?
“A. Having known her prior to the accident and having seen her in good health, and knowing of the accident. I believe that the accident would be the cause of her ill-health after-wards. It is a known fact that injury to certain nerves produce certain nervous symptoms, which take a long time to regain their normal condition and sometimes they never regain them.”

A doctor may testify from personal knowledge or from an examination of the patient, from a history of the case as he received it, and state what her condition was. The rule as to expert witnesses is that the expert may answer a hypothetical question when the question embodies a statement of facts that there is some evidence in the record tending to establish; but he may not combine matters known to him personally, not testified to, with statements of fact in the record, in answering a hypothetical question.

Miss Troup was asked and permitted to .testify as to .Miss McKim’s injury and suffering. A lay witness may testify to exclamations of pain and suffering made in her presence, but she may not give a detailed opinion as to the suffering and injuries the patient has received. Williams v. Brown, 28 Ohio St., 547, and Raub v. Carpenter, 187 U. S., 159, 161.

Another error in the court’s ruling was that counsel for defendant was not permitted to incorporate by reference a statement made by Dr. Gillespie in his deposition, where he said that and his opinion of Miss McKim’s injuries and her conduct. The question was properly ruled out by the trial court. He was further asked if he afterwards stated the same to Miss McKim, the question and answer being:

1 ‘ Q. Did you ever have a conversation with .the plaintiff in which you said that to her?
“A. Yes, sir; yes, sir, I did, more than once.”

Counsel for the railroad company desired to explain the word "that” in the question quoted, by giving the substance of what Dr. Gillespie had told the hospital authorities, "I told her she was’ not injured in my judgment and that I did not like her conduct in the case; that I was satisfied that no great injury had been inflicted,” making the statement refer to the word "that.” After giving his deposition Dr. Gillespie, entered the army, was beyond the jurisdiction of the court, and could not be called as a witness. The court, in refusing to permit counsel to place Dr. Gillespie’s testimony fairly before the jury, was in error.

Another error assigned was the conduct of counsel in argument to the jury. This will be considered in connection with the size of the verdict, as to whether or not it was influenced by passion or prejudice.

The measure of damages in personal injury cases includes compensation for injuries, whether permanent or otherwise, pecuniary loss, if any, as well as compensation for pain and suffering. The defendant’s ability to respond is no part of the measure of damages. The pleadings did not present that issue, nor was any evidence offered on the question.

In argument counsel also stated his opinion of Dr. Pope’s standing in the medical profession. In the absence of evidence on that question this argument was not within the privilege of counsel. Both of these statements were of alleged facts not adduced in evidence and were improper. Hayer v. Smith, 62 Ohio St., 161.

In the trial of a ease the judge is charged with the duty of maintaining order, guarding the rights of the parties, and seeing that the issues are so presented that the minds of the jurors are not swayed by prejudice against either party. This includes the arguments of counsel. Arguments may be and sometimes are made that so grossly abuse the privilege of counsel that it is the duty of the judge without waiting for objection, or to be reminded of it, to stop counsel then and there. Dayton Folding Box Co. v. Ruehlmann, 11 C. C. (N. S.), 493, and Hayes v. Smith, supra, page 187.

The record discloses that within two weeks after the injury complained of Miss McKim returned to her home, that she completed her course of study, and graduated with her class in December of the same year, that she worked at private nursing a greater part of the time until her operation in 1918, that since that time she has 'befen employed by the city of Louisville at a salary of $75 per month, working five days per week, and that at private nursing she could make $35 per week. From these facts, when considered in connection with the argument of counsel and a verdict of $7,583, it cannot be said that the verdict was not returned under the influence of passion and prejudice.

A consideration of the errors to which we have called attention leads to the conclusion that substantial justice was not done on the trial of this case.

The" verdict and judgment of the court below will therefore be set aside, held for naught, and a new trial ordered.

Shohl and Hamilton, JJ., concur.


author: Maijck, J.

text:
    DELIVERY OF DEED AND ACCEPTANCE NECESSARY TO VEST TITLE.
    Court of Appeals for Lawrence County.
    Tacey E. Lemley v. Edward Shafer.
    Decided, March 11, 1921.

      Title — Transfer of Must he the Concurrent Act of Tioo Parties — Delivery of Deed and Acceptance Both Necessary — Effect of Lack of Knowledge of Existence of Deed hy Grantee — Leaving a Deed for Record Does Not Alone Pass Title.

    ■1. Title to real estate is not vested in the grantee of a deed until he accepts the same. ^
    2; Delivery of a deed to the county recorder for record and the recording of the same are not sufficient to vest title in the grantee, if the latter does not accept the same and the grantor does not intend it to have that effect.

      Johnson & Jones, for plaintiff.

      O. E. Irish, for defendant.
    Heard on appeal.
   Maijck, J.

The petition of the plaintiff alleges that about September 11, 1917, she signed a deed to the defendant, purporting to convey the lands described in the petition; that said deed was without consideration; that she placed it in escrow to be delivered at her death; that by mistake the third person to whom it was delivered ■ caused the same to be recorded; that plaintiff has since determined not to deliver said deed and that the record constitutes a cloud on her title. The prayer is that the deed be canceled and the record cleared. The answer admits the making and reeoM of the deed, and denies all the other averments of the petition. The question is, therefore, whether under the testimony delivery of the deed was made and the contemplated gift thereby consummated.

The undisputed facts are:

That the plaintiff was a widow, about eighty years of age, and unable to read or write. The defendant, her grandson, now about twenty-eight years pld, has been in plaintiff’s home since childhood. For some time prior to the signing of this deed it had been the plaintiff’s desire that defendant succeed to all her prop erty rights. She first made a will to that effect. Later she maae this deed, leaving it in the custody of a friend until it became necessary for her to resume possession of it. During all this time the defendant was unaware of the existence of the deed and had not then, or did he thereafter, part with any consideration for the same. The plaintiff had never had any business experience, nor had she ever caused other property to be transferred on the record or recorded. Here the testimony diverges. The defendant’s testimony tends to show that in August, 1918, the plaintiff gave the deed in question to Mr. Wilgus, who took it to the recorder and left it with him for record; that the deed was transferred and recorded. Mr. Wilgus is positive that the plaintiff directed its transfer and record, and says that at the same time she directed him to take her will and have it probated, and that she gave him money to pay for these charges. He returned home, gave her the change left after paying for the record of the deed and for the deposit of'the will, and also gave her the recorder’s receipt for the deed and the probate judge’s receipt for the will. It does not appear that she ever read either of these papers, or had them read or explained to her. Mr. Wilgus says that she charged him to keep the whole matter secret. At this time the defendant was in France and knew nothing of the execution or record of the deed, but was afterward told by the plaintiff “that she had it fixed up in my name and had it put away for safe-keeping in Ironton, so if she died while T was over there it would be there for me when I came back.” The defendant says, further, that after some differences arose between them he told her if she wanted him to he would make the place back to her, but that she declined the offer. The defendant never got actual possession of the deed until after the. suit was filed. It further appears from the testimony of Mr. "Wilgus that the plaintiff told him to have it transferred and recorded and “leave it with the recorder in his care.” On her part the plaintiff denies all knowledge of the circumstances under which the deed was given to Mr. "Wilgus. And while we do not find it necessary to determine this issue of fact, we assume in the disposition of this case that the testimony of Mr. Wilgus is correct, and that the plaintiff directed him as he says she did.

The question then is this: Do the admitted facts, taken together with the testimony adduced by the defendant show a delivery of the deed? ' In order to determine this we must first determine what is meant by delivery. Delivery of a deed is a twofold operation. Delivery must be made and it must be accepted as such. An early Ohio case says:

“The acceptance of a deed is absolutely necessary to vest the grantee with title under it. No man can be compelled to take a conveyance without his consent. The law, with regard to the delivery and acceptance of deeds, was once very plain -because it was very strict. But I take it to be now settled that what shall amount to either, depends very much on the circumstances and the intentions of the parties.” Lloyd v. Giddings, 7 Ohio (Pt. 2), 42.
“An estate can not be thrust upon a person- against his will * * #_ The rll¡e ^8 to the necessity of acceptance is sometimes declared in the terms "of a definition of a complete delivery, as that delivery must be the concurrent act of two parties; which, of course, is tantamount to saying that the deed must be accepted.” 8 R. O. L., 975.

The delivery, if any in this ease, was by handing the deed to the recorder of the county, and to complete the delivery an "a<eeptance thereof would have to be implied. The general current of -authority, however, is to the effect that delivery to a recording officer is insufficient to accomplish a delivery of the deed. The most recent that we have found on this question is King v. Lumber Co., an Oklahoma ease, 172 Pac. 958, 4 A. L. R., 21. In this ease it is said that, while the authorities are not harmonious, the great weight of authority is that the recording of a deed does not of itself operate as a delivery. •

‘ ‘ The registry of a deed by the grantor might perhaps, in the absence of opposing evidence, justify a presumption of delivery, but such presumption is repelled where the registry was made without the knowledge or assent of the grantee, and the property it purported to convey always remained in the possession and under the control of the grantee. Younge v. Guilbean, 3 Wall. 636, 16 L. Ed. 262. The recording of a deed by a grantor does not of itself constitute a delivery. It depends upon the grantor’s intention.”

Many of the decisions of the highest courts, of the land are cited as sustaining this text. For instance,

“Delivery of a deed is not effected by signing, acknowledging and recording it without the knowledge or assent of the grantee if he is an adult, unless it is shown that the grantor intended thereby to give it effect and operation and to relinquish all control over such deed, and that the grantee on being informed assented.” Webber v. Christen, (Ill.), 2 Am. State, 68; McQuire v. Clark, 23 L. R. A. (N. S.), 873, and note.
“The mere recording of an acknowledged deed, without an intention to deliver it, does not operate as a delivery or as a transfer of title to the grantee; and while it seems that the fact that the grantor may have been prompted by a desire to put the property beyond the reach of his creditors is not necessarily fatal to a delivery or recording, there is clearly no delivery where the recording is with the intention to divest the grantor of an apparent title only and he keeps possession of both the deed and the property, especially where the grantee at the time has no knowledge of the conveyance and this notwithstanding a subsequent expression of assent and satisfaction by the grantee.” 8 R C L., 1007.

These authorities show the general current of opinion, and those of Ohio are in harmony with'them. The Superior Court of Cincinnati in discussing this question said:

“The recording of a deed adds nothing to its validity. 2 Ohio 55, Johnston v. Haines. And the custody of a deed alter record by the grantor, when the existence of the deed itself is unknown to the grantee, is held as almost- conclusive evidence that there was no intention to deliver it. 13 Pick 69, Powell v. Russell; 1 Denio 323, Elsey v. Metcalf; 5 Shepley 391, Hatch v. Hoskins; and as there can be no delivery unless the grantee assents to it, and intimates his acceptance, no exception in such case can be presumed. Harvey v. Jones, 1 Disney 65.”

In Mitchell v. Ryan, 3 O. S , 377, the Supreme Court had under consideration the delivery for record by a grantor of a deed whereof the grantee was a minor. Tn all such cases it is to be borne in mind that the law always presumes an acceptance of delivery by a minor or trustee where the grant is a beneficial one. (See note to Munro v. Bowles, 54 L. R. A., 8117). Following this rule the court in the Mitchell ease sustained the delivery to the recorder as a sufficient delivery to the infant grantee, saying:

“Now it does seem to us that when a man executes and acknowledges a deed, and delivers it to the recorder with unqualified instructions to record it, as was done in the present case, the reasonable presumption, in the absence of any rebutting circumstances, is that he means thereby to transfer his title, and this presumption is powerfully strengthened when, as in the case before us, the grantee is a minor child of the grantor, ’ ’ etc.

. The Mitchell ease, therefore, is distinguished from the instant ease in the important facts that the grantor in that ease gave unqualified instructions for the deed to be recorded, and that the grantee in that case was a minor. The case is important herein because it holds that even in such a case as was then under consideration by the Supreme Court the delivery for record with unqualified instructions to record it only raises a presumption capable of being rebutted, and the court found it to be of significance that in that case the grantor failed to take the stand and deny that delivery was intended. If we indulge the presumption that delivery resulted from the record, and the further presumption that the same was accepted, we only have a presumption that may or may not be repelled by the testimony of the plaintiff and by attending circumstances. Let us consider these circuiu stances. The plaintiff was a woman who had no business known edge. She had never caused a deed to be transferred or recorded. At the same time that she directed the transfer and record of this deed she directed that her will be probated, which was, of course, an absurd direction. While the terms transfer, record and probate meant nothing to her, she did employ terms which were significant because she understood them. She had theretofore had this deed and will in other hands for safe-keeping. She knew what that meant and when she told Mr. Wilgus to take this deed to Ironton for safe-keeping she expressed the only intelligent purpose that we know her to have had. This is consistent with her desire for secrecy. But that desire is wholly inconsistent with an intelligent desire that the deed be recorded. That desire was manifested in her conversation with the defendant to the effect that “she had the matter fixed up in my name and had it put away for safe-keeping at Ironton, so if she died while I was over there it would be there for me when I came back.” To these circumstances we have her positive testimony that she had no intention of delivering the deed to the defendant'. We find, therefore, that any presumption arising from the record of this deed is rebutted, that the defendant has no equity in the property, and that the plaintiff is entitled to the relief for which she prays.

The plainiff brought this case without making a demand that the property be re-conveyed to her. The litigation has resulted, in part at least, from her own ignorance. She should not recover1 her costs. Each party will be taxed -with the costs made by such party.

Sayre and Middleton, J. J., concur.