author: Guernsey, P. J.

text:
    Smith, Appellee, v. Krites, Appellant.
    (No. 992
    Decided April 11, 1950.)

      Messrs. Meredith & Meredith, for appellee.

      Mr. James C. Blair and Mr. G. W. Long, for appellant.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Allen County, in an action wherein the appellee, Nellie J. Smith, was plaintiff, and the appellant, Revis Krites, was defendant.

The pleadings upon which the cause was submitted to the Common Pleas Court are the amended petition of the plaintiff and the answer of the defendant.

In her amended petition the plaintiff, in substance, avers that she is the owner in fee simple of certain premises in the city of Lima; that the defendant is the owner of certain other premises situated in that city; that there is an alley platted between the property owned by the plaintiff and the property owned by defendant ; that such alley, as actually located and used by the plaintiff and her predecessors in title and the public generally, cuts across a certain triangular tip of the property owned by the defendant; that about 15 feet of the eastern triangular tip of defendant’s property is now and has been for more than 21 years last past continuously and uninterruptedly used by plaintiff and her predecessors in title as a means of ingress and egress to and from their premises, and is used by the public generally for public alley purposes; that this use has been adverse to and with the acquiescence of the defendant and her predecessors in title without any express permission from the owners thereof for a period of more than 21 years; that said alley as now located and used does not follow its platted boundaries but occupies the aforesaid portion of defendant’s premises; that the alley as now located has' been improved and maintained by the city of Lima and is now and has been for more than 21 years used by the public and by the other property owners adjoining it, including the plaintiff and her predecessors in title, as a mode of ingress and egress to and from plaintiff’s property; that said use has been continuous and uninterrupted without any express authority from the defendant and her predecessors in title, bnt with full knowledge of and without express objection by them; that the defendant has barricaded the alley so that it is impossible for plaintiff or any one else to use the east end of it or to continue to use it as a means of ingress and egress to and from plaintiff’s property; and that defendant threatens to continue to prohibit the use of the alley as a means of such ingress and egress and as a public alley.

The prayer of plaintiff’s amended petition is for a permanent injunction restraining the defendant from barricading the alley; that plaintiff’s right to an easement over the east 15 feet of the property of defendant for driveway purposes be forever quieted; and for such other and further relief as she may be entitled to.

By answer, the defendant admits the ownership of the properties and that a public alley is located between the properties so owned, and denies the allegations of the amended petition not specifically admitted in the answer.

It appears from the evidence that the alley in question, as it is located and used by the public, does not coincide with its platted location but veers to the north and across the eastern tip of a triangular portion of defendant’s property, and that as so located it has been used by the public generally and by plaintiff and her predecessors in title as a public alley for more than 21 years prior to the time it was barricaded.

However, the description of that portion of defendant’s property upon which the alley is so located is not specifically set forth in the evidence.

It appears further that during the period of more than 21 years the alley has been improved at such location for public alley purposes; that the use of the property for public alley purposes has been so open, continuous, and notorious that such use has been and is a matter of common knowledge; that both plaintiff and the defendant acquired their properties within the last few years; and that neither owned their properties at the time the above-mentioned use commenced. The chains of title of the parties are not in evidence.

At the close of plaintiff’s evidence, defendant moved the court to dismiss the amended petition for the reason that plaintiff failed to prove a case. This motion was overruled by the court, whereupon defendant rested without introducing any evidence.

The court found generally in favor of the plaintiff on the issues joined and found specifically that the plaintiff and the public have a prescriptive right over the east 15 feet of the property of the defendant for the purpose of ingress and egress. Based upon such findings, the court quieted the title of the plaintiff against the defendant and her heirs, administrators, and assigns.

The court ordered further that the defendant should remove the barricades and enjoined the re-erection thereof.

It is from that judgment that this appeal is taken.

• Defendant contends that the judgment is contrary to law for the reason that plaintiff has failed to prove the essential elements of a title by prescription set forth as follows in 15 Ohio Jurisprudence, 63, 144, Sections 45, 121, and 1 Ohio Jurisprudence, 558, Section 55:

1. That the use and enjoyment of what is claimed as an easement was adverse under claim of right.
2. That the use and enjoyment of what is claimed as an easement was exclusive.
3. That the use and enjoyment of what is claimed as an easement was continuous and uninterrupted for a period of 21 years.
4. That the use and enjoyment of what is claimed as an easement was within the knowledge of the owner of the estate over which the easement is claimed.

In considering defendant’s contention, it is necessary to consider the following rules of law applicable to the acquisition of title by prescription:

1. It is not essential that possession for the full 21 years be continuous in one person, as the doctrine of tacking has been definitely adopted in Ohio. Mc-Neely v. Langan, 22 Ohio St., 32; Zipf v. Dalgarn, 114 Ohio St., 291, 151 N. E., 174.
2. The public may have and attain prescriptive rights, and roads and streets may be established by prescription, and neither an intention to dedicate nor acceptance is necessary. Railroad Co. v. Village of Roseville, 76 Ohio St., 108, at page 117, 81 N. E., 178.
3. In order to create a right by prescription to a public street the user must be under a claim of right by the public, adverse to the owner, and continued without substantial interruption or change for a period equal to the statutory period of limitation. in respect to actions for the recovery of real estate. City of Topeka v. Cowee, 48 Kan., 345, quoted with approval in Railroad Co. v. Village of Roseville, supra, at pages 117, 118.
4. Where one uses a way over the land of another, without permission, as an incident to his own land and continues to do so with the knowledge of the owner, such use is, of itself, adverse and constitutes evidence of a claim of right, and where the owner of the servient estate claims that the use was permissive, he has the burden of showing it. Pavey v. Vance, 56 Ohio St., 162, 46 N. E., 898.

In the light of these rules of law we will now discuss, in their order, the four conditions which the defendant contends are essential to the establishment of a right by prescription.

The use by the public of the portion of defendant’s land for public alley purposes was, as demonstrated by the rule of law set forth in Pavey v. Vance, supra, of itself, adverse and constituted evidence of a claim of right.

The defendant introduced no evidence tending to show that the use was permissive, and, in the absence of such evidence, the court was warranted in finding that the use by the public was adverse and under a claim of right.

The use and enjoyment by the public of the portion of defendant’s land for public alley purposes was exclusive in the sense that defendant and her predecessors in title were thereby excluded from exercising individual proprietary rights therein.

The use by the plaintiff and her predecessors in title of the portion of defendant’s land for public alley purposes was a use as members of the public, and plaintiff and her predecessors in title acquired no easement thereby. They acquired only such right as the members of the public generally acquired to use the alley.

The evidence conclusively shows that the use and enjoyment of the land of defendant as an easement for public alley purposes was continuous and uninterrupted for a period of more than 21 years prior to the time defendant erected barricades upon the land.

As above stated, the public use as shown by the evidence in this case was of such an open and notorious character as to be a matter of common knowledge, and the defendant and her predecessors in title were charged with such knowledge.

Thus the evidence tends to prove all the essential elements of an easement by prescription in favor of the public over the land of the defendant for public alley purposes.

The plaintiff, as a member of the public injuriously affected by the action of the defendant in barricading such public easement, had the right to injunctive relief against such barricading, although she in her individual capacity had no right to such easement.

Therefore, the judgment is modified by striking out the finding and adjudication that the plaintiff is entitled to an easement. That part of the judgment which finds and adjudicates that the public is entitled to an easement is affirmed; and, since plaintiff is a member of the public injuriously affected by the act of defendant in barricading the alley, she, as such, was entitled to the injunctive relief granted by the trial court. Accordingly, the judgment, as modified, is affirmed.

Judgment modified and, as modified, affirmed.

Middleton and Jackson, JJ., concur.


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Phillips, Appellant.

      (No. 605
    Decided February 5, 1951.)

      Mr. Herbert R. Freeman, prosecuting attorney, for appellee.

      Messrs. Young & Young, for appellant.
   Fess, J.

Defendant appeals from a judgment entered upon a verdict of guilty of the crime of rape. The evidence is undisputed that the prosecuting witness, a 16-year-old girl, accompanied the defendant and another man (also indicted but not on trial) in the latter’s automobile during the evening to a tavern known as the Seven Mile House located seven miles south of Sandusky. The men spent an hour or so in the tavern drinking beer and occasionally dancing until the place closed some time around midnight. The girl was in the tavern for a short period but had nothing to drink. She spent most of the time in ihe car waiting for the men. After leaving the Seven Mile House the men decided to go to another tavern at Milan. En route, the girl sat between the two men in the front seat, the defendant driving. Although upon a numbered highway leading to Milan, the defendant turned into an unimproved side road.

At this point the evidence is in dispute. The girl testified that, when she realized they were not returning to Sandusky and were in strange territory, she became frightened; that the older man had been petting her; that she pulled the keys out of the car and threw them upon the floor and screamed out of the window; and that the men took turns in raping her and then got into a dispute outside the car as to who should take the next turn, during which dispute she got out of the car and ran down the road a short distance to a farm house.

The defendant testified that on the way to Milan he decided to take a short cut and in doing so got lost; that he woke up the owner of the car and asked him to drive; that while he and the owner were changing seats, the girl jumped out of the car and ran away; and that, after driving up and down the road in an effort to find her, they drove home to Sandusky.

The evidence is undisputed that the girl appeared at a farmhouse about 1:00 or 1:30 in the morning and inquired about the route to Sandusky. The farmer called a deputy sheriff who picked up the girl and took her home where she told her mother she had been raped. The deputy sheriff then took the girl and her mother to a doctor for examination. The physician found no bruises or laceration but took a specimen of fluid from her vaginal tract, which he sent to a hospital for analysis. The evidence is also undisputed that the defendant was brought to the sheriff’s office by the police about 6:00 a. m., where he made a statement. The deputy sheriff testified that the defendant admitted that he had sexual intercourse with the girl but the deputy left a blank space concerning this item in the written statement which the defendant signed. The defendant admitted that he signed the statement but denied that he told the deputy he had sexual intercourse with the girl and also denied having had such intercourse. The owner of the car likewise denied having had intercourse with her.

A number of errors are assigned which we do not find prejudicial. One of the errors assigned, however, deserves some comment.

During the examination of the physician he said that he took a specimen of fluid from the vaginal tract of the girl, which he sent to a hospital for analysis, and that shortly thereafter he received a report of the analysis which he identified and which was thereafter admitted in evidence as exhibit 2, over defendant’s objection. The report, which was written in pencil, was read by the doctor to the jury. It disclosed that sperm cells, which the doctor said were male sex cells, were in the specimen.

Section 12102-23, General Code, provides:

“A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. ’ ’

The Uniform Evidence Act is included m Division VII of Title IV of Part Third of the General Code, which relates to procedure in the Common Pleas Court. The act is not included in Title II of Part Fourth relating to criminal law and procedure. The act makes no reference to the Code, and the section numbers were assigned by the Attorney General. (118 Ohio Laws, 662.) However, Section 13444-1, General Code, provides that the rules of evidence in civil causes, so far as they are applicable, shall govern in all criminal causes except as otherwise provided. State v. Nevius, 147 Ohio St., 263, 71 N. E. (2d), 258. The purpose of Section 12102-23 is to liberalize and broaden the shopbook rule, recognized at common law as an exception to the general rule excluding hearsay evidence, and to permit the admission Of records regularly kept in the course of business and incident thereto, and, as applied to hospital records, to avoid the necessity, expense, inconvenience, and sometimes the impossibility of calling as witnesses the attendants, nnrses, and physicians who have collaborated to make the hospital record of a patient. Weis v. Weis, 147 Ohio St., 416, 425, 72 N. E. (2d), 245; Green v. City of Cleveland, 150 Ohio St., 441, 83 N. E. (2d), 63. it is hardly conceivable that a defendant in a criminal case will be deprived of a fair trial by the admission of a business record if the provisions of the statute are followed incident to the introduction of the record.

In the instant case, neither the custodian nor the person who made the analysis or report or under whose supervision it was made testified as to its identity and the mode of its preparation, as required by statute. Error was, therefore, committed in the admission of the report over objection.

However, no judgment of conviction may be reversed for the admission of any evidence offered against the accused unless it affirmatively appears on the record that the accused may have been prejudiced thereby. Section 13449-5, Greneral Code. The report in question merely corroborated the girl’s testimony. A review of the record indicates that the evidence, aside from the report erroneously admitted, fully supported the conviction of the defendant. Therefore, we are unable to find that the accused was prejudiced by the admission of the report. The judgment is affirmed.

Judgment affirmed.

Conn and Carpenter, JJ., concur.


author: Conn, J. Carpenter and Fess, JJ.,

text:
    The State of Ohio, Appellee, v. Farmer, Appellant.
    (No. 256
    Decided March 26, 1951.)

      Mr. Myron Rosentreter, prosecuting attorney, and Mr. Don Wargowski, for appellee.

      Mr. Leslie E. Meyer, for appellant.
   Conn, J.

On September 24,' 1950, tbe defendant shot Helen C. Noble, inflicting a fatal wound from which she died four days later. Subsequently, defendant was indicted for murder in the first degree by the grand jury of Ottawa county and on arraignment entered a plea of not guilty. On the trial, the jury returned a verdict of guilty with a recommendation of mercy. Thereafter, the trial court entered on the verdict a judgment that the defendant be imprisoned in the Ohio penitentiary for and during his natural life. From that judgment defendant has appealed to this court.

We take up first the claim of defendant that the verdict was not sustained by sufficient evidence (this being one of the assignments of error). It is disclosed by the record that Helen O. Noble and her oldest son (who at the time of the trial was 17 years old) had resided in an apartment at 121% Madison avenne in the city of Port Clinton for a period of three years or more prior to the fatal shooting. For two years preceding the shooting the defendant had resided in the same apartment.

It appears further that the defendant and the deceased had quarreled from time to time during the period they had lived together, and that defendant on one or more occasions had threatened Mrs. Noble with bodily harm. The evidence also discloses, or tends to show, that defendant was of a jealous disposition; that he regularly drank intoxicating liquor; and that on one occasion during a quarrel he threatened Mrs. Noble with a gun.

The evidence shows also that on the evening of September 23, 1950, preceding the fatal shooting, Mrs. Noble, in company with defendant’s sister, visited several places in Port Clinton and about 10:30 p. m. went to the home of the Veterans of Foreign Wars in that city, where refreshments, music, and a dance floor were provided. Later in the evening defendant appeared. Whole the evidence is, in part, conflicting as to the general attitude of the defendant toward Mrs. Noble and as to what occurred prior to the time Mrs. Noble left, there is credible evidence that the defendant and Mrs. Noble had several arguments and that the defendant was not on friendly terms with her. During the evening defendant walked up to the bar where Mrs. Noble was sitting, tossed a bullet on the bar, and said, “that is for you.”

Mrs. Ralph Knodel, wife of the canteen manager of the Veterans of Foreign Wars home, was called as a witness by the state and testified that she was assisting her husband on the evening of September 23, 1950, and observed the attitude of the defendant toward Mrs. Noble and the unfriendly conversations between them.

We quote briefly from her direct examination and cross-examination :

“Q. Do you know when — about wbat time Helen Noble left the VFW? A. It was between one and one-thirty, I would say.
“Q. Did she make any statement just prior to her leaving that — in the presence of the defendant? A. Yes, she went over to get her coat and when she came back she went to pick up her pocketbook, he asked her where she was going, and she says ‘I am going home’ and she says, ‘I don’t want you to follow me.’ He said, ‘Well, we will see about that,’ and the two of them walked out together. He was behind her.
“Q. He was behind her? A. That is right.
“Q. That is all.”

Cross-examination by Mr. Meyer.

“Q. Now, do you know what he meant — or what she meant — Mrs. Knodel, when she said ‘I don’t want you to follow me’? A. She just didn’t want him to go home with her.
“Q. Well, is that necessarily what that means, or does it mean that she wanted him to go home with her, and not follow her? A. As a matter of fact, she said ‘You darkened my door for the last time.’
“Q. What is that? A. She said‘You have darkened my door for the last time.’
“Q. Why didn’t you tell that when Mr. Rosentretem was asking you, then? He asked what she said; why didn’t you tell that? A. After all, I am a little nervous, you know.
‘ ‘ Q. Oh, are you; it is not because you are not trying to tell the jury the truth, is it? A. No, positively not. ’ ’

The defendant did not take the witness stand. The state introduced in evidence a transcription of a recording of a voluntary statement made by the defendant to the chief of police, the evening following the shooting, wherein defendant stated, among other things, that the argument with Mrs. Noble started in the Veterans of Foreign Wars barroom, and that “I was just jealous and didn’t want to see her out.” Defendant said he did not remember the bullet incident. Defendant stated also that “we was arguing and left and was going home * * *. I was walking with her, holding her arm. ’ ’ The defendant stated that he then pulled the gun out of his pocket and it went off and he did not point it at Mrs. Noble.

The evidence discloses further that the gun was a P-38 Luger military gun with a heavy trigger pull; that the bullet entered the body immediately below the left breast; and that it went through the body and was found later imbedded in the “front of the store show window.” The victim fell to the sidewalk, where she was picked up by police officers and taken to a hospital. She died four days later as a direct result of the bullet wound. The defendant left the scene of the shooting and, shortly afterward, contacted the police and admitted that he had shot Mrs. Noble.

After a careful study of the record, it is our opinion that the verdict was sustained by sufficient evidence, and that it is not manifestly against the weight of the evidence.

At the opening of the trial and during the time certain prospective jurors were being examined, the defendant, in handcuffs, was seated at or near the counsel table with a deputy sheriff. Objection was made to having the defendant manacled in the courtroom, whereupon the trial judge called the sheriff and in open court inquired of him whether there was any reason to have the defendant handcuffed. The officer answered in the negative, but indicated that he did not want to be responsible, unless defendant was handcuffed, since the crime charged was serious. The officer was then informed that the matter of restraining the defendant was the sheriff’s responsibility and not that of the judge. Defendant’s objection was overruled, and thereupon defendant moved for a mistrial on the ground that he was prevented from having a fair trial. This motion was overruled.

In the Code of Criminal Procedure it is provided that “it shall be the duty of the judge to control ail proceedings during the trial” (Section 13442-2, General Code). The statute appears to be in confirmation of the duty and function of the trial judge in presiding over a jury trial. The duty thus imposed on the trial court is an affirmative one to be exercised within the limits of sound discretion in order that there may be no bias or prejudice against the accused or a denial to him of a fair trial. We call attention to the following authorities: Pierpont v. State, 49 Ohio App., 77, 195 N. E., 264; Makley v. State, 49 Ohio App., 359, 197 N. E., 339; State v. Bryan, 69 Ohio App., 306, 43 N. E. (2d), 625; State v. McKay, 63 Nev., 118, 165 P. (2d), 389; 14 American Jurisprudence, 855, Section 132; 23 Corpus Juris Secundum, 312, Section 977.

In the instant case the trial court, although erroneously indicating it was the responsibility of the sheriff to determine whether the accused should be manacled in the courtroom during the trial, nevertheless determined that the motion of defendant should be overruled. It is our opinion that, under the circumstances, that ruling was within the court’s sound discretion and did not prejudicially affect the defendant.

Defendant assigns as error the failure of the court to charge on manslaughter in its general charge, and that the charge on manslaughter given following the defendant’s request was incomplete. It appears that the court gave the jury the accepted definition of manslaughter as being “the unlawful killing of another either upon a sudden quarrel in the heat of passion or while in the commission of an unlawful act. ’ ’ The court, after elaborating rather fully on the first part of the definition, stated that, “if the evidence fails to show adequate provocation for the killing, a verdict for manslaughter may not be returned.” No instruction was given to the jury relative to the killing of another “while in the commission of an unlawful act, ’ ’ to wit, carrying concealed weapons, as in this case. While this appears to be ■ an error of omission, it is our opinion that the error was not prejudicial, as there was no credible evidence tending to show that the mortal wound was accidentally inflicted.

The remaining errors assigned have been considered, and it does not appear in any instance that the verdict of the jury was prejudicially affected.

On the entire record, it appears that defendant had a fair trial, and that the errors assigned were not prejudicial. There is thus presented a case which comes within the curative provisions of Section 13449-5, General Code. This statute is mandatory and prohibits the court from reversing a judgment of conviction, on specified grounds or “for any cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial. ’ ’

Judgment affirmed.

Carpenter and Fess, JJ.,

concurring. We do not concur in the statement that it was within the court’s sound discretion to overrule the defendant’s motion that the handcuffs he removed in the courtroom. The evidence did not disclose a situation where there was any likelihood that the defendant might try to escape, and, if it did, the presence of an additional deputy sheriff, which the court could have ordered, would have secured the situation. Seldom can circumstances justify the manacling of an accused during his trial proceeding.

However, from the evidence, as stated in the opinion, and the whole record, the guilt of defendant was so manifest that the presence of the handcuffs was not prejudicial to him, error though it was.


author: Carpenter, J.

text:
    City of Toledo, Appellee, v. Schudel, Appellant.
    (No. 4540
    Decided April 2, 1951.)

      Mr. John J. McCarthy, director of law, for appellee.

      Mr. Robert N. Zanville, for appellant.
   Carpenter, J.

In 1946, Fred C. Schudel, who resides outside the city of Toledo, was employed in the United States post office in that city and received wages that year for his services. He did not file a return and pay the tax on that income as required by city ordinance No. 18-46 (the pay-roll income tax ordinance), under which it was provided that that return should be made and the tax paid on or before March 15, 1947.

On April 20,1950, an affidavit was filed in the Municipal Court of Toledo, charging the defendant, under the penalty provision of that ordinance, with a violation of it in the respect above stated.

On trial he was found guilty and sentenced to pay the costs. On appeal to the Court of Common Pleas, that sentence was affirmed and from that judgment of affirmance this appeal on questions of law was taken.

In the trial court, the Common Pleas Court, and now in this court, the defendant has contended that prosecution of him was barred by the statute of limitations as expressed in Sections 4562 and 12381, General Code, which are as follows:

“Section 4562. Suits or prosecutions for the recovery of fines, penalties, or forfeitures, or for the commission of any offense made punishable by any bylaw or ordinance of any municipal corporation, shall be commenced within one year after the violation of the ordinance, or commission of the offense, and not afterward. ’ ’
“Section 12381. A person shall not be indicted or criminally prosecuted for a misdemeanor, the prosecution of which is not specially limited by law, unless such indictment is found, or prosecution commenced, within three years from the time such misdemeanor was committed.”

The city contends that there is no limitation fixed as to such prosecution. It cites section 16 of the ordinance, which dealt with the obligation of taxpayers to pay after the expiration of the ordinance, December 31, 1950. The material part thereof was as follows:

“For purposes of collection of delinquent or unpaid taxes, actions or proceedings for such collection and/or the collection of interest and penalties thereon, or enforcing any provisions of the ordinance (including prosecutions under the criminal sections of the ordinance and including appeals before the board of review), the ordinance remains in force and effect until such time as all taxes accruing during the life of the tax, ending December 31st, 1950, shall have been fully paid and all actions, suits and prosecutions, appeals and other judicial or administrative proceedings relative to the collection of payment of any such tax, have been finally terminated. ’ ’

That section did not deal with the beginning phase of a prosecution. In no sense was it a statute of limitation. Its purpose was to keep alive proceedings or prosecutions lawfully commenced, even if the ordinance expired December 31, 1950, as it did by its terms.

The city contends also that the failure to make return and pay the tax is a continuing misdemeanor until the tax is paid. That is true, but March 16, 1947, marked the time when the right of the city to begin a prosecution accrued, and if there is a time limitation to that right, it is to be reckoned from that date.

No provision of this ordinance or any other ordinance of the city of Toledo which provides a limitation of such a criminal action as this has been cited by counsel, and the court has found none.

Looking to the city charter, there is found in section 10 of its omnibus, an enumeration of the powers of the municipality under the charter, as follows :

“Section 10. Enumeration not exclusive. The enumeration of particular powers by this charter shall not be held or deemed to be exclusive; but in addition to the powers enumerated or implied therein or appropriate to the exercise thereof, the city of Toledo shall have and may exercise all other powers which under the Constitution and laws of Ohio now are, or hereafter may be, granted to cities. Powers proper to be exercised, and not specially enumerated herein, shall be exercised and enforced in the manner prescribed by this charter, or, when not prescribed herein, in such manner as shall be provided by ordinance or resolution of the council, or by statute.” (Emphasis added.)

There is no question here as to the validity of the tax ordinance. That was settled in Angell v. City of Toledo, 153 Ohio St., 179, 91 N. E. (2d), 250. Nor is there any question about the general constitutional powers of the city to provide for its government. However, in the absence of exercise of any power by the city, either by charter or ordinance, under section 10, the statute controls. The charter itself so declares.

There being no limitation by ordinance of the time for prosecuting this action, the statute controls, and, under the statute, whether it be one year under Section 4562, General Code, or three years under Section 12381, General Code, is immaterial because the action against this defendant was barred March 15, 1950, and this prosecution was not commenced until April 20, 1950. '

The judgments of the Common Pleas and Municipal Courts are reversed and the defendant discharged.

Judgment reversed.

Fess and Conn, JJ., concur.


author: Hildebrant, P. J.

text:
    Duggins, Appellee, v. United Brotherhood of Carpenters et al., Appellants.
    (No. 7443
    Decided July 2, 1951.)

      Mr. Norman F. Hoover, for appellee.

      Mr. Harry N. Routsohn, for appellants.
   Hildebrant, P. J.

This appeal on questions of law is from a judgment of the Common Pleas Court, arrived at without the intervention' of a jury and allowing recovery to plaintiff, a widow, of the death benefits provided for in the constitution of defendant United Brotherhood of Carpenters following the death of her husband, a member of local union No. 1602 affi dated with the brotherhood which is an unincorporated association and international in scope.

In recognition of the principle declared by the courts, including this one, that the legal relationship between the membership and the union is contractual in its nature, plaintiff claims to be entitled to recover ex contractu, under the death-benefit provisions of the brotherhood constitution.

Pertinent provisions of that constitution are:

Paragraph C, Section 44. “Bach beneficial local union shall pay to the general secretary $5 on each new member admitted, excepting apprentices, also one ($1) dollar per month for each member in good standing, sixty-five (65c) cents of which shall be used as a fund for the general management of the united brotherhood and payment of all death and disability donations prescribed by the constitution and laws of the united brotherhood, together with all legai demands made upon the united brotherhood. The balance of thirty-five (35c) cents together with monies received from new members, to be placed in a special fund for ‘home for pension purposes.’ ”
Paragraph A, Section 45. “A member who owes the local union two months dues shall be notified by mail at the last known address by the financial secretary during the third month of said delinquency that if said arrearages are not paid before the last day of the third month he will be suspended from benefits of death and disability donation, the right to a pension or admittance to the home until he squares up entirely all of his indebtedness (including dues for the month in which he squares up his arrearages) and furthermore that he will not be entitled to any benefits during the time of such arrearages or for a three month period from the date of squaring up same. A member in arrears must square up all arrearages in full within one year or stand suspended.”
Paragraph B, Section 45. “A member owing a local union a sum equal to six months’ dues shall have his name stricken from the list of membership without a vote of the local union, and shall be so notified at the last known address by the financial secretary of the local union during the sixth month of his delinquency * *
Paragraph A, Section 48. “On the death of a member in good standing, if married and living with his wife, the claim shall be paid to the widow * #
Paragraph A, Section 49. “A beneficial member to be entitled to donations must be not less than seventeen and not over sixty years of age at the time of admission to membership, and, when he joined, must have been in sound health and not afflicted with any disease or subject to any complaint likely to endanger his health or cause permanent disability. ’ ’
Paragraph B, Section 49. “A beneficial member will be entitled to the donations as prescribed in the constitution and laws of the united brotherhood: provided, he is over one year a contributing or financial member in good standing, and when three months in arrears he shall be debarred from all donations until three months after all arrearages are paid in full, including the current month.”
Paragraph C, Section 49. “Donations for journeymen between the ages of twenty-one and fifty years shall be:
One year’s membership .........$100
Two years’ membership ......... 200
Three years’ membership........ 300
Four years’ membership......... 400
Five years’ membership ..........600”

All the evidence before the court was adduced by and on behalf of the plaintiff who is, consequently, bound thereby. It consists of the testimony cf the plaintiff and the financial secretary of local 1602, together with certain exhibits, including the constitution of the brotherhood and the dues record of plaintiff’s decedent from November 1945, the time of last joining the union, to the last entry of July 1949, the month in which he died.

The financial secretary testified, in substance, that, on learning of the illness of plaintiff’s decedent, the local union stepped in, as it was wont to do in hardship cases, and agreed to advance his dues necessary to prevent his being dropped from the union, in order that he might not be required to pay another initiation fee, he to repay such advancements after, on his anticipated recovery, he returned to work. The secretary testified:

“A. I think this October 9, 1947, was our first payments.
“Q. Yes. When you did that were you paying him up so that he would be, his widow would be entitled to funeral benefits? A. No.
“Q. Will you explain that to the court why you say no? A. We called on Shevlin Duggins at the hospital and we agreed with Shevlin, inasmuch as he was on his back, to continue his dues payments to keep him a member of the union, so it was our understanding at that time from the doctor that was attending him that he would regain his health in a period of one year and be able to go back to work. We were making an effort to keep him a member of the union so that when he went back to work he wouldn’t have to pay another initiation fee.
“Q. You were merely keeping him a member s® that he wouldn’t be dropped from the membership roll, is that right? A. That is right.
“Q. You were not keeping him a member so that he would be entitled to benefits, or his widow would be entitled to funeral donations? A. No.
“Q. And you understood it that way? A. Yes.
“Q. Did he understand it that way? A. We left him thinking he understood it that way, at least. ’ ’

The record shows that, although the local advanced the dues sufficient to prevent plaintiff’s decedent from being dropped from membership in accordance with their agreement, the payments were not made in a manner to keep Mm eligible, at all times, for death benefits. The record shows further that he was kept informed of his status with reference to the payment of dues.

The testimony shows further that in July 1949, when it became apparent decedent could not recover, the local obtained from plaintiff’s decedent the following written statement:

“Cincinnati, Ohio, July 4, 1949.
“In consideration of dues paid for me by carpenters local union No. 1602 as a loan of money therefore paid by me in accordance with the insurance provisions of said local union and for such insurance, and which money has not been repaid by me.
“I hereby give and gave to the said local union a lien upon any benefits payable or which may become payable, to undersigned or to my beneficiaries, for the amount due upon such loan to me or paid by the organization for me upon said insurance.
“Witness my hand this 4th day of July, 1949.
‘ ‘ Shelven Duggins
‘ ‘ signature
‘ ‘ Trustees
“Witness: E. L. Huber
“Mrs. S. Duggins Jos. Flingeman
“Mrs. Ray Pyles Henry Busch, Jr.”

At that time, anticipating eligibility for death benefits for the first time, the local union advanced the dues necessary to square up plaintiff’s decedent, within the meaning of the constitutional provision quoted above.

The financial secretary testified further:

“Q. Now, the next payment was paid when? A. The next payment was paid June 23, 1949.
“Q. Now, when you paid June 23, 1949, for what months did you pay? A. Paid for April, May and June.
“Q. So you did pay for the first time the current month? A. That is right.
“Q. In June of 1949? A. That is right.
“Q. And then he became squared up, as you cali it, is that correct? A. That is right.
“Q. For the first time in twelve months? A. Yes, sir.
“Q. Now, under the constitution how long would his widow have to wait before she could, how long would he have to live before his widow would be entitled to a funeral donation under the constitution? A. Three months.
“Q. Mr. Heimbroek, lets get down to real facts, when you first started to pay his dues for him in October of 1948, you said you had an understanding that all you would do was to keep him from being taken off the rolls, is that right? A. Yes, sir.
“Q. And he understood it that way and you understood it that way? A. Yes, sir.
• “Q. Were you at that time expecting him to get well? A. That is right.
“Q. So that when it came down to June of 1949 and you saw he was not going to get well it was then for the first time that the local took the action to square him up, is that true? A. Yes, I would say yes.
‘ ‘ Q. And it did it purposely so that his widow might be entitled to funeral benefits, is that correct? A. Yes.
“Q. Had he lived three months after you squared him up then the scheme of the union would have been fulfilled and she would have been entitled to those benefits after he died, after three months, is that correct? A. That is correct.
“Q. So that, in other words, you were trying to do something for him and perhaps had a selfish reason for it because you had an investment in it at that time, at least, your local did? A. That is right.”

Since plaintiff’s evidence shows that the dues were squared up on June 23, 1949, and the death occurred one month later on July 23, 1949, it is apparent that the three-month provision of the constitution applied and under its terms decedent’s estate was not entitled to benefits.

The legality of this provision has been upheld in United Brotherhood of Carpenters and Joiners v. Smith, 110 Colo., 47, 129 P. (2d), 909, with which this court is in accord. It would seem to be a complete answer to an attack on the legality of that provision to say that in joining the member agreed to it.

The trial court found that the local union agreed to keep plaintiff’s decedent in good standing, which finding is contrary to the testimony that it agreed to advance dues sufficient to keep him from being dropped from membership. It is further pointed out that he could have been in good standing, but still have been out of benefit for a three-month period after having1 acquired good standing by a squaring up of dues. The trial court further found, upon principles of ostensible agency, that the defendant brotherhood was estopped to deny liability for the acts of the local union, and, apparently, that its conduct amounted to a waiver of the provisions of the constitution.

It is sufficient to say that the application of those principles are not available to plaintiff under either the pleadings or proof. Even though counsel’s opening statement for plaintiff be held sufficient against motion, the motion of defendant for judgment, at the close of plaintiff’s case, should have been sustained.

The judgment is, therefore, reversed, and final judgment entered for defendant.

Judgment reversed.

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


author: Matthews, J.

text:
    Beyer, Appellee, v. Miller, Appellant.
    (No. 982
    Decided May 5, 1951.)

      Messrs. Milhkin, Reister $ Fitton, for appellee.

      Messrs. Baden <£ Fiehrer, for appellant.
   Matthews, J.

The plaintiff recovered a judgment

for damages to a Plymouth automobile, which was being operated by one Lindner, sustained when it collided with an automobile operated by the defendant.

The defendant brought this appeal, urging two grounds for the reversal of the judgment.

The first ground is that there was no substantial evidence of negligence on his part, or, if there was such evidence, the evidence to the contrary was such as to make the verdict manifestly against the weight of the evidence.

We have read and analyzed the evidence in order to reach a decision on this issue. It is true that in the number of witnesses the preponderance greatly favored the defendant, but, if the testimony of Lindner is believed, the defendant turned to the left side of the road into the automobile which Lindner was operating. We cannot say that his testimony is so improbable as to require the jury to reject it as a matter of law. Nor can we say that the jury would be unreasonable if it drew an inference of negligence therefrom.

The plaintiff alleged that he owned the automobile which was operated by Lindner. The defendant’s general denial placed that allegation in issue. No .certificate of title in proof of that allegation was introduced in evidence, and it is claimed that this is a fatal failure of proof. There is no doubt that under the language of Section 6290-4, General Code, the intent is to make the certificate the exclusive evidence of title, and that courts are forbidden to recognize any right, claim, or interest of any person in any motor vehicle, “unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued.”

The mandatory character of this legislative enactment is emphasized in the case of Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209, 7 A. L. R. (2d), 1342, the syllabus of which is:

“Under the plain and unambiguous language of Section 6290-4, General Code, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the certificate of title law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a condition precedent for the validity of such verdict or judgment. ’ ’

Because of the absence of a certificate of title, the Supreme Court affirmed the judgment of the Court of Appeals reversing a judgment for the plaintiff, but finding some evidence of plaintiff’s title in the record, although insufficient to sustain a judgment because of the absence of the certificate of title, remanded the cause for a new trial.

In the case at bar, it is contended that the defendant stipulated that the plaintiff was the owner of the damaged Plymouth automobile. In the Dill of exceptions filed by the defendant, no mention is made of any stipulation relating to the title to the automobile. However, the plaintiff filed an objection to the bill of exceptions, because it failed to include this language: “It-is agreed by and between the parties that the agreed amount of damages to the plaintiff’s car was $400.”

The court found the objection well taken and ordered the stipulation included in the bill of exceptions.

It is clear that the dominant thought expressed by this stipulation is the amount of the damage. That was the subject of the agreement. The defendant in his answer denied that plaintiff owned the automobile. This agreement carries no implication that he intended to recede from that denial or to dispense with the kind of evidence, required by Section 6290-4, General Code, to prove ownership of an automobile. At best, the agreement seems indefinite on this subject. At most, the stipulation does no more than take the place of the proof which the court, in Mielke v. Leeberson, held was evidence of ownership but was insufficient to sustain the judgment.

Lindner, the driver of the automobile, was the only witness for the plaintiff. He testified that he was the plaintiff’s father-in-law, and that he was going to Cincinnati to get some mail for his daughter. He was asked: ‘ ‘ When you went to Cincinnati to get the mail you spoke about, did you use your car ?” His answer was: “No, I used her’s.” There was no other evidence of any sort on the subject of ownership, excepting perhaps a lead pencil notation of the words, “Beyer’s car,” on one of the photographs introduced in evidence and then underneath the notation, in parenthesis, the word, “Lindner.” There was no evidence as to when or by whom this notation was made. It may be that this notation would have some probative value, but it is difficult to see how it could have much weight.

It should also be mentioned that the stipulation does not purport to dispense with the production of a certificate of title. It certainly does not recognize that plaintiff had such a title, and, had it done so, a different question would have been presented.

It is said in 50 American Jurisprudence, 609, Section 8, on the subject of the construction to be placed on a stipulation, that “in seeking the intent of the parties the language used will not be so construed as to give it the effect of an admission of fact obviously intended to be controverted, or the waiver of a right not plainly intended to be relinquished. ’ ’

Assuming that if a stipulation in express terms recognized the existence of a certificate of title and purported to dispense with its production it would be effective and make unnecessary the introduction in evidence of the certificate, notwithstanding Section 6290-4, General Code, we are of the opinion that the stipulation and agreement of counsel m this case does not meet that test. It does no more than refer to the “car” which was damaged as “the plaintiff’s car.” It makes no reference to the nature of the evidence of title. In Mielke v. Leeberson, supra, the plaintiff tes titled that he was the “owner” of the automobile and still the court held that this evidence was insufficient to sustain the judgment. The agreement or stipulation in the instant case certainly goes no further than did the plaintiff’s testimony in the Mielke case. It establishes by agreement the fact of ownership, which was testified to by the plaintiff in the Mielke case. Indeed, as already noted, it lacks the directness and positiveness of the testimony in the Mielke case.

On the authority of Mielke v. Leeberson, we are of the opinion that the judgment in the instant case must be reversed for lack of jurisdiction in the court to give effect to a title other than one evidenced by a certificate of title.

The only other question is whether final judgment should be entered, or the cause remanded for a new trial.

We are of the opinion that the stipulation and the notation on the photograph furnish as much evidence as existed in Mielke v. Leeberson, and in that case the court held that, while the evidence was insufficient to support the judgment, it was evidence, and, therefore, remanded the cause for a new trial. We will follow that course in this case.

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed,.

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

Ross, J., not participating.


author: Per Curiam.

text:
    Roscher, d. b. a. Paramount Sales Co., Appellant, v. Band Box Cleaners, Inc., et al., Appellees.
    (No. 7463
    Decided July 2, 1951.)

      Mr. Stewart S. Cooper, for appellant.

      Messrs. Hoover, Beall, Whitman $ Eichel, for appellees.
   Per Curiam.

In this appeal from a judgment of the Municipal Court of Cincinnati, the plaintiff-appellant seeks to obtain the reversal of the judgment in favor of the defendants in two cases which, by order of the court, were consolidated and tried together.

The actions involved the sale of a patented article to the two defendants, who, it is alleged, paid for a part of the quantity furnished and refused to pay for the balance. The statement of defense contained, first, a general denial and, second, the following statement:

“Further answering defendant says that it was induced to purchase the merchandise set forth in the bill of particulars of the plaintiff herein by the false representations of the agent of the plaintiff herein, and further that said representations were made with the knowledge of their falsity and with intent to deceive this defendant and that said defendant had a right to rely on such representations which consisted of statements made by the agent of the plaintiff herein. That the devices sold by plaintiff to defendant could be utilized without violating the rules and regulations of the Cincinnati & Suburban Bell Telephone Company.”

The reply was in effect a general denial.

It is claimed by the defendants that the allegations in the statement of defense justified a claim that there was a breach of express warranty. Section 8392, General Code, is claimed to be applicable. In this section it is stated:

“Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, n.or any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.” (Emphasis added.)

This section must be read in connection with Section 8395, General Code, in which it is stated:

“In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.”

An examination of the evidence discloses that previous to the consummation of the sale to the defendants there was a conversation between a salesman for plaintiff and officers of the defendants which were closely associated in the operation of the same type of business enterprise.

The president of Conlee Dry Cleaners, Inc., stated:

“Q. You stated that Mr. Beecher was asked by you if he thought the use of the ad caps would be permissible with the telephone company, and his answer was that, in his opinion, you would have no trouble with the telephone company, is that correct? A. Something to that effect. I didn’t take it down. I don’t know exactly what words he used.”

The president of the Band Box Cleaners stated:

“Q. Tell the court what conversations took place between you and Mr. Beecher at that time. A. He came in and showed me this medium of advertising; and it happened that Mr. Conlee had shown it to me while we were in Chicago some weeks previous to that. So I mentioned that fact to Mr. Beecher there, and he told me just what — the number that he required us to buy in order to get the exclusive arrangement for it in our trading area that we served; and he told me about Mr. Conlee had already ordered them. So I, at that time, did mention to Mr. Beecher about a difficulty with the telephone company. He said, well, he didn’t think there would be any trouble with it and he had gone into that with Mr. Conlee; and he showed me an order from Conlee for these ad caps. So I just ordered them, too, in order * *

From the evidence it further appears that the patented article, the subject of the controversy between the parties, consisted of a small plastic circular cap which could be placed over a circular projection usually appearing in the center of the dialing mechanism found on the so-called “French” telephone instruments. Printed upon such plastic attachment were appropriate telephone numbers of (1) the fire department, (2) the police department, and (3) the ambulance department — each applicable to the area in which each defendant operated its business.

Also on each plastic attachment was the telephone number of the appropriate defendant in such areas.

There is no claim that these plastic attachments would not fit the proper projections on the telephones or that the telephone numbers printed on such attachments were incorrect.

As indicated from the previous quotations from the record, it appears that all parties were aware that the telephone company might have some objections to the use of these attachments. It appears from the record also that not only was this true, but that the telephone company had a definite published tariff rule upon the subject, the terms of which appear to have been brought into evidence in a question by counsel for one of the defendants.

Reference to the following portion of the record indicates the provisions of regulation 9 of the tariff schedules of the city of Cincinnati and the Suburban Bell Telephone Company:

“No equipment, appartus, circuit or device not furnished by the telephone company shall be attached to or connected with the facilities furnished by the telephone company, whether physically, by induction or otherwise, except as provided in this tariff. In case any such unauthorized attachment or connection is made, the telephone company shall have the right to remove and disconnect the same; or to suspend the service during the continuance of said attachment or connection; or to terminate the service. Now you were aware that that tariff regulation appeared in the telephone book? A. No, sir, that is the first time 1 ever heard.
“Q. You didn’t know that this regulation appeared in the telephone book? A. No, sir.
“Q. You say you have been selling these ad caps for a year and a half? A. That is right.
“Q. You have never had any contact with a regulation similar to the one that I have read? A. That is correct. ’ ’

It appears that none of the parties were familiar with the specific terms of this regulation, although in a general way they were cognizant of its existence. It appears that such regulation, is published in each telephone directory furnished subscribers, and, hence, the specific terms thereof were available to all concerned.

It seems that the controversy which ripened into the litigation here considered originated when a representative of the telephone company called on one of the defendants and objected to the use of the plastic caps which were being gratuitously distributed by the defendants for use by their customers upon their telephone instruments.

From the following quotation from the record it appears that the representative of the telephone company stated its position, as follows:

■ “Q. What did you tell Mr. Allen, Mr. Daughters? A. In calling on customers who are distributing the ad cap or any other foreign device, we ask to interview the owner or the manager or someone in a management position. I did the same thing calling at the Conlee company. This gentleman said he would take care of me. I then stated my business, that it had come to our attention that these ad caps were being distributed; we merely wanted to let them know that it was in violation of our tariff for a customer to associate them with the instrument; that our employees would remove any that were found attached, and that in some cases it is possible for the customer to whom they have delivered that cap to have his telephone service • disconnected, which could have repercussions on the distributor. ’ ’

It is clear from what has been said herein and from the quotations from the record that the whole claim of the defendants justifying a cancellation of the sales contract is predicated upon the original conversation with the sales representative of the plaintiff.

What did this conversation, the substance of which is admitted by all parties,- constitute in effect in the light of the claims of the defendants? Simply an expression of opinion that it was the belief of the plaintiff’s salesman that the telephone company would not enforce its published rule which was available to ail parties. The plaintiff’s salesman did not guarantee freedom from such enforcement. Certainly, the defendants could have easily obtained the information before sale which they acquired from the representative of the telephone company after use of the caps.

Therefore, it must be concluded that the trial court was in error in rendering judgment for the defendants if such judgment was based upon either misrepresentation or breach of warranty, and especially is this true in view of the fact that the subject of sale was a patented article.

Something also has been said about the failure to make a redelivery of that portion of the merchandise for which payment was not made. It appears that there is some evidence that the defendants refused to accept C. O. D. that portion of the merchandise. However, it appears also that plaintiff ordered redelivery, abandoning the C. O. D. requirements, and the evidence indicates that redelivery was made. Certainly, there is no evidence to the contrary.

So viewing the matter, it is the conclusion of this court that the judgment of the trial court must be reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: McNamee, J.

text:
    Hodge Drive-It-Yourself, Inc., Appellant, v. The Cincinnati Gas & Electric Co., Appellee.
    (No. 7288
    Decided November 6, 1950.)

      Messrs. Burke & Cooney and Mr. Gordon Wilson, for appellant.

      Messrs. Peck, Shaffer & Williams and Mr. Andrew J. Conroy, for appellee.
   McNamee, J.

The plaintiff, Hodge Drive-It-Yourself, Inc., seeks a reversal of a judgment entered in the Common Pleas Court of Hamilton County upon a verdict of the jury in favor of defendant, The Cincinnati Gas & Electric Company.

This action arose out of an explosion which occurred on July 15, 1942, at about 11:25 p. m., in a building located at 511 Sycamore street, Cincinnati, Ohio, which was occupied exclusively by the plaintiff as lessee. The building was three stories in height and of reinforced concrete construction. The explosion was of such tremendous force that it drove the two elevators to the top of the building, knocked out the penthouse located at the top of the shafts, and caused the reinforced concrete floors, which were six inches thick, to be blown upwards. The steel reinforced rods in the sidewalk were broken loose at the building line and the sidewalk was brought upward and outward into the street. Five persons who were in and about the building at the time were killed. Four of them were dead at the time their bodies were found and the fifth victim survived for a period of about 24 hours. Personal property of the plaintiff, located in the building, was damaged to the extent of more than $26,000.

Suit was brought to recover for this damage which plaintiff claims was caused by the negligence of defendant in permitting large quantities of gas to escape from its mains and service pipes into the building.

Defendant denied the allegations of negligence and upon trial offered evidence tending to show that the explosion was not caused by escaping gas but was the result of the ignition of vaporized gasoline which had leaked into the basement from a gasoline dispensing unit maintained by plaintiff on the ground floor of the building. The point of the explosion was in the basement under the sidewalk.

Plaintiff’s principal assignments of error relate to its claims that the trial court erred in the admission of evidence offered by the defendant as part of the res gestae and in the rejection of rebuttal testimony offered by plaintiff under the same doctrine.

The trial court admitted as part of the res gestae testimony of witnesses for the defendant as to statements made by two persons who died as a result of tbe explosion. One of such persons, the declarant, Bass, was killed instantly, and his statement received in evidence was made immediately before the explosion occurred. The other declarant, Bottorf, survived the explosion for about 24 hours and his statement to the witness, Schaefer, also received as part of the res gestae, was made between eight and ten minutes after the explosion. The trial court rejected that part of the testimony of plaintiff’s rebuttal witness, officer Pogendick, which related to statements allegedly made by Bottorf a few minutes after the declarant’s statements to the defendant’s witness, Schaefer. The voluminous record of the trial contains much factual and opinion evidence in support of the conflicting claims on either side of the crucial issue whether the explosion was caused by escaping gas or resulted from vaporized gasoline. However, reference will be made herein only to those evidential facts that form the context of the declarations admitted by the trial court as part of the res gestae and illustrate the circumstances under which the declarations proffered in rebuttal thereof were made.

At 11:22 on the night of July 15, 1942, the fire department of Cincinnati received a telephone complaint involving a condition at plaintiff’s building. The fireman who received this call relayed it to the police broadcasting station from which a police cruiser was dispatched to the Hodge Hrive-It-Your self building. In the police cruiser were sergeant Hille and officer Kasselman. As the cruiser approached plaintiff’s building, it traveled northerly on Sycamore street to a point immediately north of the building where it was turned in a westerly direction over the sidewalk to the entrance of a parking lot. As the cruiser came upon the west sidewalk of Sycamore street immediately north of plaintiff’s building, Bass, who had been in the building, approached the cruiser and spoke to the police officers. Immediately thereafter sergeant Hille left the cruiser and accompanied Bass on foot to the entrance of the building, about twenty feet away. Officer Kasselman, who remained in the cruiser, started to back it into the street intending to park in front of the building. As sergeant Hille and Bass reached the entrance to the building, and while Kasselman was backing the cruiser into the street, the explosion occurred. Sergeant Hille’s body was catapulted over a four-story building on the opposite side of Sycamore street. He was killed instantly as was Bass, whose body was found in the school yard on the east side of Sycamore street. Officer Kasselman was unhurt and appeared as a witness for the defendant.

The court permitted Kasselman to testify that as Bass came to the police cruiser a few moments before the explosion, he said “he was the one who called.” The remainder of Bass’s statements as reported by Kasselman is that “he told us there was gasoline leaking in the basement in the garage and he says ‘there might be a fire.’ ”

Schaefer, who also appeared as a witness on behalf of defendant, testified that he was a pharmacist of long experience; that on the night in question he was returning home on a bus from his place of employment and when the bus reached the corner of Main and Fifth streets, which is one block north of Sycamore and Fifth streets, the explosion occurred throwing the passengers on the bus into a state of panic; that the driver of the bus opened the doors; and that Schaefer then ran east on Fifth street to the corner of Sycamore street where he came upon a man lying in the gutter. Schaefer described the man as having no clothes on excepting his belt and ‘ ‘ a strip of clothing around his waist.” The hair on his head and eyebrows was blown off. His body was covered with a white coating of concrete powder and he had a severe cut on one of his legs. According to Schaefer, the man tried to rise and asked the witness to call his folks and tell them what happened. He gave his name as Kenneth Bottorf. Schaefer stated that he administered first aid to Bottorf and bandaged his leg, and that a bystander wrote Bottorf’s name and address with a pencil given to him by Schaefer. In response to Schaefer’s question, “What happened?” Bottorf said “that he was returning his car which he had rented and somebody was backing a truck or machine in there and had knocked the pump over and there was gasoline leaking someplace around there and then the whole thing let go.”

Schaefer estimated that about three minutes elapsed from the time he heard the explosion until his arrival at the place where he found Bottorf lying in the gutter and that about five minutes or more elapsed after that before the above-quoted statement was made.

Before the reception of Bottorf’s statement, the trial court and counsel examined Schaefer at length in the absence of the jury. The record discloses that the trial judge made a careful, exhaustive and painstaking effort to ascertain all the circumstances under which this statement of Bottorf was made. Bottorf was taken to a hospital and, upon arrival there about 11:36 p. m., was found to be in a state of shock. Except for the opinion evidence of the witnesses who arrived on the scene after the explosion, the statement of Bottorf, as testified to by Schaefer, is the only evidence that indicated that the gasoline dispensing unit was damaged prior to the explosion. It also tends to elucidate and explain the statement of Bass made immediately before the explosion.

In rebuttal, plaintiff offered officer Pogendick as a witness. He testified that he and officer Wehberg arrived at the corner of Sycamore and Fifth streets in a.police ambulance a short time after the explosion; that they put Bottorf upon a stretcher and placed him in the ambulance; that immediately thereafter they crossed the street and obtained the body of Bass which was also placed in the ambulance; and that as the ambulance started for the hospital Bottorf said to the witness, Pogendick, who was in the back of the ambulance, “What happened? Where is my buddy?” Whereupon Pogendick said to Bottorf, “What happened?” Bottorf responded, “I don’t know.” The statements of Bottorf as made to Pogendick on the way to the hospital were excluded by the trial court but proffered by plaintiff in rebuttal of testimony given by Schaefer.

The term, “res gestae,” as presently employed in legal terminology describes a doctrine of the law of evidence that includes those exceptions to the rule against hearsay not otherwise classified which relate to declarations or acts concomitant to the fact at issue and which tend to illustrate or explain it. Perhaps on no other doctrine of procedural law have text writers and legal commentators written so profusely and so critically. Almost without exception they inveigh against the judicial practice of including within the broad and ill-defined outlines of the term, “res gestae,” those exceptions to the hearsay rule which rest upon other principles capable of exact and accurate definition.

Professor Wigmore denounces the practice in the following vigorous language:

“The phrase ‘res gestae’ has long been not only entirely useless, but even positively harmful. It is useless, because every rule of evidence to which it has ever been applied exists as a part of some other well established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. No rule of evidence can be created or applied by the mere muttering of a shibboleth. * * * Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.” 6 Wigmore on Evidence (3 Ed.), 182, Section 1767.

In 3 Jones Commentaries on Evidence (2 Ed.), 2187, Section 1193, the author voices the same criticism in more moderate terms. He says:

“The subject of this chapter is one which has always been regarded as peculiarly vague, and the very haze in which it is enveloped has proved self-multiplying to such an extent that some authors see fit to avoid almost entirely the use of the term ‘res gestae’ and to disregard the language of courts which cling thereto by reclassifying all such matter under various exceptions to the hearsay rule.”

The phrase, “res gestae,” meaning, “things done,” was originally employed in cases admitting verbal acts as exceptions to the hearsay rule. Its extension to include spontaneous utterances before and after the primary fact was accomplished with little regard for exactness or preciseness of definition. In the literature of decided cases the phrase has attained a significance that embraces a wide variety of acts and declarations occurring contemporaneously with, before, or after the principal events to which they relate. As noted by the court in Landeau v. Travelers Ins. Co., 305 Mo., 563, 267 S. W., 376, “ res gestae is a term of protean significance.”

The strictures of commentators against the ill-considered use of the phrase do not extend to their finding fault with the actions taken by the courts. It is conceded that while “loose thinking” has impelled resort to this phrase to describe principles that ought to be defined more precisely, the decisions made on the admissibility of evidence generally have been sound. The broad compass of the doctrine as now understood is outlined by Wharton as quoted in Jones’ Commentaries, supra, page 2189, as follows:

“ ‘Those circumstances which are the undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of anyone concerned, whether participants or bystanders; they may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act— a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.’ ”

Under the doctrine of res gestae as thus defined, we have little difficulty in determining that the statement of Bass, made to the police officers immediately before the explosion, was properly received in evidence. This is true whether the statement be considered as a verbal act imparting color and significance to the actions of Bass and sergeant Hille, or whether it be received as a spontaneous declaration made under the influence of impending danger. The declaration of Bass was almost synchronous with the explosion. It may be inferred fairly that less than a minute elapsed from the time of his statement to the police officers until Bass and Sergeant Hille reached the.entrance to the building which was about twenty feet away.. Bass’ statement was not a narrative of a past transaction but was an urgent report of an existing condition and a forecast of possible disaster. It was made to police officers who had been sent to investigate a complaint. Both the content of the statement and the circumstance of its utterance bespeak the declarant’s apprehension and fear and his disinterested purpose to prevent the threatened danger. The declaration was “immediately and unconsciously” associated with the primary fact.

In a case where the circumstances were less potent in their influence upon the mind of the declarant, the Supreme Court of Ohio held that a complaint made before the primary fact at issue and out of the presence and hearing of the plaintiff was properly admissible as part of the res gestae. United Power Co. v. Matheny, 81 Ohio St., 204, 90 N. E., 154, 28 L. R. A. (N. S.), 761. In that case the plaintiff sought to recover damages for his alleged wrongful ejectment from one of the defendant’s streetcars. As bearing upon the motive of the conductor in ejecting the plaintiff, the defendant offered evidence off statements made by other passengers who left the streetcar before plaintiff was ejected and which referred to plaintiff’s alleged offensive conduct. The trial court refused to admit this evidence but the Supreme Court held that the complaints made to the conductor by other passengers were part of the res gestae and that it was prejudicial error on the part of the trial court to exclude them.

Other cases decided by the Supreme Court holding that statements made before the principal event were part of the res gestae are L. S. & M. S. Ry. Co. v. Herrick, 49 Ohio St., 25, 29 N. E., 1052; Outland v. Indus. Comm., 136 Ohio St., 488, 26 N. E. (2d), 760.

The determination of whether Bottorf’s statement to Schaefer was admissible is governed by the principle applicable to spontaneous statements and declarations.

The general principle which governs this exception is outlined in 3 Jones Commentaries on Evidence, 2207 and 2208, Section 1203, as follows:

“The present attitude of the courts, it may be said, is to regard primarily the circumstances. Although it appears that the particular declarations, exclamations, or statements were made after the occurrence in question, if it also appears that the principal occurrence was such as would be likely to cause more than passing mental effect, and that the conduct of declarant was such as to show that its effect still continued as to him, and the declaration is relevant and relates to the occurrence, it is admissible.”

The rule is more elaborately stated in 6 Wigmore on Evidence (3 Ed.), 135, Section 1747:

“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by fhe external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest eould not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.”

The earlier cases applied the principle that a spontaneous utterance to be admissible must be contemporaneous with the principal event. This requirement has long since been abandoned by courts m all jurisdictions including Ohio. In State v. Lasecki, 90 Ohio St., 10, 106 N. E., 660, L. R. A. 1915E, 202, it was held that the limits of the doctrine of res gestae, as applied to exclamations, is not to be determined by the strict meaning of the word, “contemporaneous,” but by the “causal, logical and psychological relation to such exclamation with the primary facts in controversy.” See, also, N. Y. C. & St. L. Rd. Co. v. Kovatch, Admr., 120 Ohio St., 532, 166 N. E., 682. This rule, as to exclamations, has been made applicable to spontaneous declarations and statements made subsequent to the primary fact. Bake v. Indus. Comm., 135 Ohio St., 627, 22 N. E. (2d), 130; Stough v. Indus. Comm., 142 Ohio St., 446, 52 N. E. (2d), 992. The first paragraph of the syllabus of the Stough case reads:

“1. A declaration or statement, to be admissible as part of the res gestae, is not required to be exactly simultaneous with the primary fact in controversy, but it must be a spontaneous or an impulsive declaration or statement and not the mere narration of a past transaction. * * *”

In the opinion in the Stough case, the last above-quoted statement from Wigmore is cited with approval. It may be assumed, therefore, that the principle that governs as to the admissibility of spontaneous utteranees in other jurisdictions is applicable in Ohio. Applying this principle we hold that the statement of Bottorf to Schaefer was properly received in evidence.

Bottorf’s declaration was made several minutes after the explosion, but it is difficult to envisage a situation in which a declarant suffered a more serious or devastating shock to his nervous and physical system. The terrific force that destroyed the concrete building stripped Bottorf of his clothing, removed the hair from his head and eyebrows, injured him in the leg, and completely destroyed the normal functioning of his mental faculties. Instinctively he attempted to inform his family of the tragedy that had befallen him. As he was dissuaded in his feeble efforts to accomplish this purpose and was asked “what happened?,” he impulsively made the»statement of events that preceded the explosion. While the statement is narrative in form, it cannot be considered as a dispassionate utterance made as the result of “reasoned reflection.” The circumstances under which Bottorf’s statement was made present a case where the mental effect of the shock of the explosion upon declarant was both serious and continuing. Under the circumstances of its utterance, the reliability and trustworthiness of the statement is assured. It meets every test of the admissibility of spontaneous declarations.

There remains for consideration the question whether the trial court erred in rejecting the proffered testimony of officer Pogendick which was offered in rebuttal of Schaefer’s testimony in respect of Bottorf’s statement.

Plaintiff concedes that the answer of Bottorf to Pogendick’s question, “what happened?,” is probably not admissible. Plaintiff, however, insists that Bottorf’s exclamations, “What happened? Where is my buddy?,” were spontaneous and ought to have been received as tending to refute Schaefer’s testimony that Bottorf had previously recounted the events he observed immediately prior to the explosion.

While it is arguable that Bottorf’s exclamations in the presence of officer Pogendick were the spontaneous utterances of a man in a severe state of shock, they do not tend to explain the primary fact at issue and thus lack that quality of illustration which is essential to any declaration admissible under the doctrine of res gestae. Manifestly these statements were inadmissible as evidence in chief on behalf of the plaintiff. To hold them admissible as evidence in rebuttal of a statement made a few minutes earlier by the same declarant would be to approve the novel proposition that hearsay evidence may be received to rebut testimony which was admitted under a recognized exception to the hearsay rule. This we cannot do.

Further, in view of Bottorf’s tragically weakened condition and his fast ebbing vitality, it cannot be said that his later utterances to officer Pogendick were necessarily inconsistent with the earlier statement made to Schaefer.

We do not find that the judgment is against the manifest weight of the evidence, nor do we find any prejudice resulting to the plaintiff by reason of the other assignments of error.

For the reasons hereinabove assigned, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Doyle, P. J., and Hurd, J, concur.

Doyle, P. J., of the Ninth Appellate District, and McNamee and Hurd, JJ., of the Eighth Appellate District, sitting by designation in the First Appellate District.