text:
    The Fischer Auto & Service Co. v. General Accident, Fire & Life Assurance Corp., of Perth, Scotland.

      Insurance—Accident—Bodily injury—Automobile owner — Claim for damages—Notice to assurer.—Duty of assured automobile owner to his assurer.

    1. Where no bodily injury is apparent as the result of an accident at the time the same occurs, and there is no reasonable ground for believing that a claim for damages against the owner of an automobile will arise therefrom, such owner is not required to give his assurer notice until subsequent facts as to an injury would suggest to a person of ordinary and reasonable prudence that a liability on the part of the owner to the injured person might arise.
    2. Under such circumstances the duty of the assured owner is ■performed if he gives notice within a reasonable time after the injury presents an aspect suggestive of a possible claim for damages.
    (Decided July 9, 1917.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Bettinger, Schmitt & Kreis, for plaintiff in error.

      Messrs. Clore & Clayton; Mr. Nelson Schwab and Mr. John M. McCaslin, for defendant in error.
   Jones, P. J.

The parties here stand in the same position in which they stood in the trial court, and for convenience they will be referred to as plaintiff and defendant, the verdict and judgment having been given in favor of the defendant.

The action below was brought upon a policy of insurance, by which the defendant agreed to indemnify plaintiff, as the assured, “against loss by reason , of the liability imposed by law upon the assured for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered while this policy is in force by any person or persons by reason of the ownership, maintenance or use,”- etc., of plaintiff’s automobile, which was. described in the policy.

Suit was brought by Daniel W. Smith for injuries received by him in the collision between plaintiff’s said automobile and the one in which Smith was riding. Defendant refused, upon notice, to defend plaintiff in the suit brought by Smith, and denied liability thereunder on the ground that notice had not been given of the occurrence of the accident in accordance with the terms of the policy.

This action below was brought to recover from defendant the amount of the judgment and expenses in said suit brought by Smith. The insurance policy contained the following condition:

“C. The assured upon the occurrence of an accident shall give immediate written notice thereof, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent. If a claim is made on account of such accident, the assured shall give like notice thereof. If thereafter any suit is brought against the assured to enforce such a claim the assured shall immediately forward to the corporation every summons or other process served on him.”

Defendant denied liability and refused to defend the action brought by Smith, on the ground that plaintiff had wholly failed to comply with said conditions, in that no notice was given as provided in. said condition until January 14, 1914, although the accident took place on July 18, 1913.

The record shows that plaintiff’s truck was being operated by a driver who had no knowledge of any bodily injury to either of the occupants of the other automobile, and understood that the extent of the damages caused by the-collision was the property damage to the other automobile, consisting of a broken lamp and windshield, and the driver made such a report. The first knowledge had by plaintiff of any bodily injury caused by the accident was brought to it by a letter from Smith’s attorney dated December 3, 1913, on receipt of which Mr. Fischer called upon the attorney, and went from his office to the office of The Heister & Huntington Company, agents for the insurance company, and reported same, and secured from said agent a blank form on which a report was then made to the insurance company.

On December 6, 1913, the attorneys of defendant advised plaintiff of the receipt of this report and stated:

“This is not in compliance with the policy of insurance, which required an immediate report upon any accident that may happen, and for this reason we hereby notify you that The General Accident F. & L. Assurance Corporation Ltd. denies liability for this accident, and declines to make any investigation of the alleged accident, or to defend you in the event an action is brought against you growing out of injuries to Mr, Smith.”

Upon suit being filed by Mr. Smith summons was sent to the agents of the insurance company in compliance with the terms of the policy.

The real question in this case is whether the assured must, under clause C above quoted, give notice of every “accident” that may occur in the use of the automobile insured, or only of such accidents as occasion bodily injuries.

The policy of insurance has nothing to do with injuries to property, but is only concerned with bodily injuries to the person. In this case it appears that Mr. Smith at the time of the occurrence immediately left the scene of the accident without in any way having communicated to plaintiff’s driver the fact that he had been injured, and it was not apparent to such driver that any bodily injury had been inflicted. It appears that Smith’s injury did not develop to be anything but a trifle until some time after the collision, when it was discovered that a piece of glass had worked its way into his knee and occasioned a serious injury.

In the opinion of the court this case is ruled by the principles laid down in Chapin v. Ocean Accident & Guarantee Corp., 96 Neb., 213, the third syllabus of which is as follows:

“In a case where no bodily injury is apparent at the time of the accidental occurrence, and there is no reasonable ground for believing that a claim for damages against the owner of the automobile may arise therefrom, he is not required to give the assurer notice until the subsequent facts as to injury would suggest to a person of ordinary and reasonable prudence that a liability, to the injured person might arise. In such case the duty of the assured is performed if he gives notice within ax reasonable time after the injury presents an aspect suggestive of a possible claim for damages.”

To the same effect are Lucas v. N. Amsterdam Casualty Co., 162 N. Y. Supp., 191, 97 Misc., 618, and Schambelan v. Pref. Acc. Ins. Co., 62 Pa. Superior Ct., 445.

It could well be claimed that if plaintiff’s driver had known of even a slight injury to Smith, the stipulation of the policy would require notice of such injury even though plaintiff might deem it unnecessary. Such is the rule laid down in Travelers’ Ins. Co. v. Myers & Co., 62 Ohio St., 529.

No doubt it is proper to submit to the jury the questions of fact — whether the circumstances of the accident were such as would have made it apparent to the plaintiff that bodily injuries might result from the accident and whether the terms of the policy as to notice had been complied with. (Crane v. Standard Life & Acc. Ins. Co., 4 N. P., 309, affirmed 59 Ohio St., 617.) In this view of the law the trial court erred in refusing to give to the jury the two following special charges requested by plaintiff before argument:

“The provision in the policy sued upon that the assured upon the occurrence of an accident shall give immediate written notice, with the fullest information obtainable at the time, to the corporation’s head office at New York City, or to its duly authorized agent, does not require a notice of all accidents, but only such accidents as result in bodily injuries.”
“If you find that neither the plaintiff nor the driver of its truck prior to the receipt of the letter from Cark Rankin, on December 4, 1913, knew or had reasonable grounds to believe that Mr. Smith received a bodily injury in the collision on July 18, 1913, and that within a reasonable time there-, after communicated said written notice to The Heister Huntington Company, then I charge you that the giving of that notice was a compliance with the provision of the policy requiring the insured to give immediate written notice of the accident.”

And the court erred in its general charge in the use of language from which the jury might infer that a notice was necessary to be given the defendant company under the policy on the occurrence of any accident whatever, even though bodily injury did not result therefrom.

The judgment is therefore reversed and the cause remanded for further proceedings.

Judgment reversed, and cause remanded.

Gorman and Hamilton, JJ., concur.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    Wheaton et al. v. Fernenbaugh.

      Schools — Suspension—Abandonment of property—Nonuser.

    Suspension of school for a period of three years in the school district in which the school property involved in the instant case is located does not constitute abandonment on the ground of nonuser.
    (Decided October 25, 1917.)
    Appeal: Court of Appeals for Knox county.

      Mr. Charles L. Bermont, prosecuting attorney, for plaintiffs.

      Mr. F. O. Levering and Mr. P. A. Berry, for defendant.
   Houck, J.

This is an appeal case and is prosecuted to this court from the common pleas court of Knox county. The basis of the action is one for injunction, and was submitted to this court upon an agreed statement of facts.

We do not deem it necessary in order to decide the real question involved in this case to set out in this opinion the agreed statement of facts, as we think it sufficient to say that applying the propositions of law pertinent and applicable to the facts agreed upon there remains but one question to be determined by the court, which is a question of fact, namely, whether or not said board of education has ceased to use said premises for school purposes.

An examination of the agreed statement of facts shows that the school in the school district in which said premises are located has been suspended for about three years by the board of education, and the question for solution is: Does this fact constitute such a non user as would be held to be an abandonment of said school property for school purposes, which would warrant, justify and authorize the defendant to take possession of said premises?

Abandonment, as we understand it, means an intentional relinquishment of a known right, and to constitute abandonment there must be an intent and an actual failure to use. Nonuser alone, at least short of the period of the statute of limitations, unless otherwise provided by contract, is not sufficient, as we deem it, to prove an abandonment; but nonuser, if continued for such a length of time, coupled with other acts of a character which would within themselves tend to show an intention on the part of the owner not to resume or repossess himself of the thing whose use is relinquished, may constitute an abandonment.

Applying these rules to the conceded facts in this case, we are bound to find and do find that the claim of the defendant is not well taken and that therefore the plaintiffs are entitled to the relief prayed for in their petition.

Judgment for plaintiffs as prayed for in the petition. Injunction made perpetual. C.ause is remanded to the common pleas court for execution as to costs.

Powell and Shields, JJ., concur.


author: Carpenter, J.

text:
    The State, ex rel. The John Gill & Sons Co., v. Baer, Judge.

      Bills of exceptions—Preparation and correction of same—Duty of trial judge as to signing—Mandamus.

      A judge who ihas presided! at a trial is not required -by law to prepare a bill of exceptions for counsel and is only obligated to sign a “true” bill, or, when the adverse party files an objection or amendment, to correct the bill. The decision of the trial judge that a bill of exceptions tendered to him for signature is untrue is conclusive and final.
    (Decided December 24, 1917.)
    In Mandamus : Court of Appeals for Cuyahoga county.

      Messrs. Hoyt, Dustin, Kelley, McKeehan Sr Andrews, for relator.

      Mr. George Spooner and Mr. Samuel Horwitz, for respondent.
   Carpenter, J.

The relator alleges in his petition that he duly presented a “true” bill of excepr tions of all the evidence produced at the trial in the case of The John Gill & Sons Company v. J. Ablisky, at which trial the Hon. George P. Baer presided, and asked the defendant herein to sign and correct the same, if necessary, and to allow and sign such bill as provided in Section 11566, General Code; that said defendant refused arbitrarily and unjustly, and for the sole purpose of defeating relator’s right to proceed in error in said cause, to settle, allow, or correct and sign, said “true” bill of exceptions, etc.

Upon which an alternative writ was allowed to issue.

The defendant in his answer says, in substance, that the trial consumed two full days, during which time much testimony was required, and that he suggested to counsel then to secure a stenographer so that a record might be made, but that said counsel did not so do; that the relator, after the rendition of the verdict, changed counsel; that the said bill of exceptions which counsel so prepared and presented to him for signature was not a “true” bill and did not and does not truthfully set forth the testimony or evidence; that it does not properly or fully report, even in substance, the testimony of the witnesses at said trial; that it charges and accredits testimony to the defendant that was obtained from relator’s superintendent on cross-examination; and that it does not give the charge of the court correctly or fairly, and untruthfully states that said bill contains “all the evidence offered and given at said trial.1”

Defendant further alleges that all the matters regarding said bill of exceptions were fully presented to him at a hearing at which both plaintiff’s and defendant’s counsel were present and arguments made, and at which hearing the court held that the bill presented to him was not a “true” bill of the testimony nor of the evidence in said case; that then and there he offered to help relator’s counsel prepare a suitable bill to raise any questions of law involved in the trial; and that, he now offers to sign any “true” bill that is presented.

In the argument of counsel, at the above hearing, it was substantially admitted that the bill did not contain “all the evidence” and that it was not a “true” bill. Excuse was made that by reason of change of counsel, and the circumstances connected therewith, it was impossible to procure from the memory of counsel who were present and conducted the trial all of the evidence and charge of court, the intimation being that the court should furnish from his memory such evidence and charge and prepare for relator an entire and true bill. In the case of Johnes v. Auditor of State, 4 Ohio St., 493, it is said:

“It must not be expected that the clerk of the court would draft writs of mandamus. * * * Counsel must therefore prepare such writs and submit them to the court before they are issued, in order that it may be seen that they correspond with the order of allowance.”

That a judge who has presided at a trial is not required by law to prepare a bill of exceptions for counsel and is only obligated to sign a “true” bill, or when the adverse party files an objection or amendment, to correct the bill, is fully established in the case of State, ex rel. Atkins, v. Todd et al., 4 Ohio, 351. As said by the court:

“The bill of exceptions, is in practice, and by law, to be signed and sealed only, not to be prepared by the judges; the only obligation upon the judges, is, to sign and seal a true bill of exceptions.
“But the object of the relator is, not to compel the judges to sign a correct bill of exceptions, but to sign the bill offered. * * * The power of determining whether a bill of exceptions is true, or not, is vested in the judges, to whom it is presented for signature. * * * Tf the court had granted a ruLe to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which had been offered to him. The court granted the rule to show cause, and the judge has shown cause, by saying that he has done all that can be required of him: and that the bill is not such an one as he can sign. Nothing is more manifest, than that the court cannot order him to sign such a bill of exceptions/ ” (From Ex parte Bradstreet, 4 Pet. [29 U. S.], 106.)

It will be remembered that in the present case the court refused to sign the bill of exceptions because it was not a “true” bill; that he had suggested to counsel to have the testimony taken down as given; that thereafter he offered his assistance in preparing a correct bill; and that he offers to sign any “true” bill that is presented to him. But it is insisted upon by counsel that he sign the particular bill presented to him.

In the case of Creager et al. v. Meeker, 22 Ohio St., 207, it is said in the syllabus:

“An application for a mandamus, to compel a judge to sign a bill of exceptions, should be accompanied by the bill that was tendered to him for his allowance.
“Where the answer in such case shows that the defendant is willing to sign a true bill, but denies that the bill presented is true, the writ' must be refused, as the right to determine as to the truth of a bill of exceptions is vested in the judge to whom it is presented.”

And in the case of Shephard v. Payton, Judge, 12 Kans., 616, the syllabus reads:

“The decision of the trial j'udge, that a bill of exceptions tendered to him for signature is untrue, is conclusive and final, and the supreme court will not upon mandamus hear testimony as to its truthfulness, or compel him to sign it.”

The defendant has judicially decided that the bill which was presented to him was not a true bill, and under the authorities above cited he was acting within his proper jurisdiction. It being conceded that the bill which counsel had presented to the judge to sign was not a true bill, it is clearly evident that this court would not have the power in this proceeding to command him either to prepare a bill of exceptions for counsel nor to sign the bill which was presented to him.

The writ is therefore refused and judgment rendered for the defendant.

Writ refused.

Grant and Lieghley, JJ., concur.


author: Gorman, J.

text:
    Condon v. Condon.

      Divorce—Alimony—Wilful absence—Res adjudicata—No divorce •where separation justified — Judgment dismissing divorce action subject to review, when.

    1. A judgment of dismissal of an action for divorce without a full hearing is subject to review.
    2. No divorce can be had for wilful absence or separation where the separation on the part of the accused person is justified, and a wife is justified in living apart from her husband where she has established a right to do so by obtaining a decree for separate support and maintenance.
    3. As long as a wife is living apart from her husband and receiving alimony from him as awarded by a decree of a court of competent jurisdiction finding the husband guilty of wilful abandonment and desertion, which decree is unreversed and . unmodified, the wife cannot be said to be wilfully absent from her husband, as she is acting in accordance with her rights under such decree.
    (Decided May 7, 1917.)
    Error : Court of Appeals for Hamilton county.

      Messrs. Hulswitt & Lillie, for plaintiff in error.

      Messrs. Dempsey & Nieberding, for defendant in error.
   Gorman, J.

In the court of common pleas, division of domestic relations, the plaintiff, Maurice M. Condon, brought an action against the defendant, Margaret M. Condon, for divorce, alleging as a ground therefor that the defendant had been guilty of wilful absence for more than three years; that she had been guilty of gross neglect of duty in that she failed to perform the duties of a wife in preparing his meals and keeping his residence in a cleanly and habitable condition; and that she constantly nagged and found fault with him, and obstructed and hindered him in his business.

To this petition the defendant filed an answer admitting the marriage, that plaintiff is a bona fide resident of Hamilton county, Ohio, and that there were no children born of the marriage. But she denied that she was guilty of gross neglect of duty towards the plaintiff, and denied that she had been wilfully absent as alleged in the petition. For a second defense against the charge of gross neglect of duty set out in the petition the defendant averred that in a certain action for alimony brought by her in the insolvency court of Hamilton county, Ohio, numbered 3075 on the docket, the plaintiff filed his cross-petition against her charging her with the same gross neglect of duty that he charges in the petition in this case, and praying to be divorced from defendant on account thereof. She further set out that she filed her answer to said cross-petition in said case in the insolvency court, denying said charge of gross neglect, and praying on her own behalf that the cross-petition be dismissed ; that upon the issues so made by said cross-petition and answer a hearing was had in said insolvency court, and upon said hearing upon the 13th day of April, 1911, the said insolvency court did enter its final judgment and decree in said cause, finding among other things, upon the issues joined upon said charge of gross neglect of duty, in favor of this defendant, and that she was not guilty thereof as charged by plaintiff, and ordering and adjudging that said cross-petition for divorce in said cause in said insolvency court be dismissed. The defendant further averred that said case No. 3075 in said court is res ad judicata as to the charges of gross neglect of duty made by plaintiff in this case, and that said plaintiff is estopped and barred by said final judgment and decree from relitigating said charges in this case. For a third defense to the charge of wilful absence the defendant set out that the plaintiff wilfully abandoned and deserted her and left her penniless and in great financial straits on the 9th day of August, 1910; and further averred that the insolvency court of Hamilton county in its final judgment and decree, referred to in the second defense herein, found as a fact that plaintiff did on August 9, 1910, wilfully abandon and desert defendant, and as a consequence thereof did order, adjudge and decree that plaintiff should pay this defendant, as and for alimony, during the continuance of the judgment and decree, the sum of fifteen dollars per week on Monday of each and every week; that since the rendition of said judgment, and, as defendant believes, for the purpose of evading payment of the same, the plaintiff has twice through intermediaries and not in his own proper person requested the defendant to return to him and to resume marital life with him; and that the defendant declined and refused, and still declines and refuses, for the reasons, first, that the plaintiff is now and has been for a long time prior to the date of the separation a continual and habitual drunkard; second, that the plaintiff is now and was at the time of their said separation and has ever since been consorting with another woman to the great scandal and disrespect of this defendant. And for a fourth defense, the defendant alleged that the plaintiff did not bring this action in good faith, but for the purpose of getting rid of the judgment of alimony awarded against him by said insolvency court; that the judgment of the insolvency court awarding her fifteen dollars was made a lien upon the real estate of plaintiff, which is set out and described by him in the petition, and that after said judgment was rendered the plaintiff herein appealed to the circuit court of Hamilton county from the judgment entered by the insolvency court in her favor for alimony of fifteen dollars per week, and on appeal in said court, cause No. 5387, on .November 26, 1913, said circuit court of Hamilton county entered as its judgment and decree the same judgment and decree entered by the insolvency court and also made an allowance of fifteen dollars per week alimony a lien and charge upon plaintiff’s real estate. The defendant further set out in her answer that the said judgments and decrees of the insolvency court of Hamilton county and the circuit court of Hamilton county are in full force and effect, unreversed and unmodified. Defendant therefore prays that plaintiff’s petition for divorce be dismissed and that she may be protected in all her rights.

To this answer the plaintiff filed a reply in which he denies that he is estopped or barred from setting up in the petition the allegation of gross neglect of duty, and he denies that he does not bring this action in good faith, and he denies that there was any mercenary motive in his attempts to effect a reconciliation, denies that he is a continual and habitual drunkard, denies that he has been consorting with another woman, denies that he has threatened defendant with personal violence and that she is in mortal fear of him, asserting that the claim that she is in mortal fear of him is a fabrication stated only for the purpose of eliciting sympathy. He denies that he at any time refused to provide suitable apartments for himself and defendant, such as those that ought to be provided by a man of his means.

It will be noticed that the reply fails to deny the decrees entered in the insolvency and in the circuit courts of Hamilton county, and fails to deny that the decrees were found against him upon the issue of gross neglect of duty and abandonment.

Upon the trial of this case in the common pleas court before his honor Charles W. Hoffman, judge of the division of domestic relations, the defendant offered in evidence the pleadings in the former alimony and divorce case in the insolvency court of Hamilton county, and also the decree entered by that court in said cause, and the decree entered by the circuit court of Hamilton county when said cause was appealed to that court. The court of common pleas refused to hear any further testimony with regard to the charge of gross neglect of duty or wilful absence, as set up in the petition, and claimed to have occurred since the entry of said judgments of the insolvency court and the circuit court of Hamilton county. The court further adjudged and decreed that the petition of plaintiff herein be dismissed and that the defendant Margaret M. Condon recover from the plaintiff her costs and counsel fees. To all of the foregoing rulings of the court, the judgment, and order and decree, the plaintiff Maurice M. Condon excepted, and is in this court asking for a reversal of the judgment dismissing his petition.

At the outset of the case it is claimed that there is no bill of exceptions filed in this case. It appears from the record that the judgment entry was made by the court of domestic relations on August 11, 1916, and a bill of exceptions was duly filed in the court of common pleas on September 20, 1916, and transmitted by the clerk of that court to Judge Hoffman on October 2, 1916. Judge Hoffman, on the same day, October 2, 1916, returned the bill to the clerk of the court of common pleas with his acknowledgment of the receipt thereof and his signature. '

The petition in error together with a transcript of the docket and journal entries of the court of common “pleas and the original pleadings were filed in this court on October 16, 1916, but no bill of exceptions appears to have been filed on that date. A bill of exceptions duly signed by Judge Hoffman, and purporting to contain all the evidence offered below, was filed in this court on November 24, 1916, one hundred and five days after the judgment was rendered in the common pleas court. The petition in error in this court was filed October 16, 1916, within the seventy-day period fixed by the statute for the filing of a petition in error, but the requirements of the statute that the bill of exceptions shall be filed with the petition in error within the statutory time of seventy days was not complied with. As an excuse for this, counsel for plaintiff in error claims that he left the bill of exceptions with the clerk of the court and that by inadvertence or oversight the clerk of the court neglected to file it in the court of appeals on October 16, 1916, when the transcript, the petition in error and the original papers were filed. The bill of exceptions was found in the safe of the clerk on or about November 24, 1916, the date of the filing in this court. The deputy clerk who attends to the filing of papers in the court of appeals had no independent recollection of a bill of exceptions being presented to him, but counsel for plaintiff in error claims that he did present it to this clerk for filing. Under these circumstances we are not prepared to say that counsel for plaintiff in error did not perform his full duty in presenting the bill of exceptions to be filed, with the proper deputy clerk, and the failure of the clerk to file the bill of exceptions could not be charged to plaintiff in error or his counsel. We are disposed to give the plaintiff in error the benefit of the doubt and hold that under the circumstances the bill of exceptions should be considered by this court.

But, considering the bill of exceptions and all the evidence adduced, together with the rulings of the court in failing to hear other evidence, we are of the opinion that the court of common pleas did not err in dismissing the petition of plaintiff.

Ordinarily a judgment of the court of common pleas in a divorce matter is not reviewable by this court, on the grounds of public policy. It may be claimed under Section 12002, General Code, that where the court of common pleas dismisses the petition without a final hearing, error may be prosecuted to this court. That section provides:

“No appeal shall be allowed from a judgment or order of the common pleas court under this chapter [the chapter relating to divorce and alimony] except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony.”

This is not an appeal proceeding, and, furthermore,' under the new constitution, as adopted in 1912, there is no longer any appeal from a judgment of divorce or alimony to the court of appeals. But, in view of the fact that this section remains unrepealed, we think, as has been said by this court in the Schmid case decided today, by analogy it appears to be the policy of the legislature to allow a review of a divorce case when there is a judgment of dismissal without a hearing. It appears to us that this judgment of dismissal of the action without a full hearing is subject to review. But so long as the decree of alimony in the former case, in favor of the defendant in error against the plaintiff in error, which was entered by the circuit court of Hamilton county in 1913, remains in full force, unreversed and unmodified, the plaintiff in error in this case is bound by all the findings set out in that decree touching the matter of gross neglect of duty and abandonment. In the decree the circuit court did find that the plaintiff in error had abandoned the defendant in error and that she was not guilty of any neglect of duty toward plaintiff in error, and awarded her alimony of fifteen dollars per week. The plaintiff in error in the petition below set out no new cause of action, and as long as defendant in error in this case is living apart from plaintiff in error and receiving alimony from him as awarded by the circuit court of Hamilton county in the former case, she cannot be said to be wilfully absent from the plaintiff, as she is acting in accordance with her rights under the decree of the circuit court.

These questions of fact, having been determined against the plaintiff in error, cannot be reopened and relitigated in a subsequent action between the same parties. We think this doctrine is fully supported by the following authorities: Miller v. Miller, 150 Mass., 111; Harrington v. Harrington, 189 Mass., 281; Weld v. Weld, 27 Minn., 330, and 1 Nelson on Divorce and Separation, Section 92.

The author of the last-named authority says in the section cited that no divorce can be had for wilful absence or separation where the separation on the part of the accused person is justified, and that a wife is justified in living apart from her husband where she has established a right to do so by obtaining a decree for separate support and maintenance.

If the plaintiff in error in this case has any new grounds for divorce against his wife, which have arisen since the rendition of the judgment in the circuit court, or if the decree of the circuit court of Hamilton county had been set aside or modified, he would have a right to maintain an action for divorce against the defendant in error. But so long as the status of the parties remains as it has been fixed by the decree entered by the circuit court of Hamilton county, and so long as that judgment continues unreversed and unmodified, we hold the plaintiff in error cannot maintain an action for divorce on the ground of wilful absence against the defendant in error.

For the reasons stated, the judgment of the common pleas court will be affirmed.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


author: Kunkle, J.

text:
    Baird et al. v. Detrick et al.

      Wills—Evidence—Attorney as subscribing witness—Waiver of privilege—Testimony of witness impeached, how—Res gestae— Statement of subscribing witness—Reversible error—Absence of judge from court room—Discretion of trial court—Conduct of examination of witness.

    1. When a testator procures his attorney as a subscribing witness to his will, he thereby expressly consents that such attorney may testify as fully as any other subscribing witness, and thereby waives the exemption of Section 11494, General Code.
    2. The rule is well established that the testimony of a witness cannot be impeached, by showing contradictory statements, unless the attention of the witness is first called to such alleged ■statements and the opportunity afforded him of either admitting, denying or explaining the same. This rule is not changed by the subsequent death of the witness.
    8. Statements of a subscribing witness to a will, made immediately after coming out of the room in which the will was executed, do not constitute a part of the res gestae.

    4. In order to predicate reversible error in the trial of a civil suit upon the absence from the court room of the trial court during a portion of the trial it should appear that objection was made to such absence, or that the absence of the trial judge clearly 'prejudiced the rights of the complaining party.
    5. While a trial court should not unduly interfere with the examination of witnesses to the prejudice of either party, yet the trial court has a right to guide the trial, and, if necessary, develop the facts requisite to a fair presentation of the case.
    (Decided June 29, 1917.)

      Error : Court of Appeals for Clark county.

      Messrs. Stafford & Arthur; Messrs. McGrew & Laybourne; Mr. William M. Rockel and Mr. W. Y. Mahar, for plaintiffs in error and certain defendants in error.

      Messrs. Zimmerman & Zimmerman and Mr. C. S. Olinger} for contestees of will.
   Kunkle, J.

This is an action in which plaintiffs in error seek to set aside the last will and testament of Clara J. Mills.

An issue was made up in the court of common pleas, and the grounds relied upon for setting aside such will were mental incapácity and undue influence.

The trial resulted in sustaining the will by the concurrence of nine members of the jury.

Motion for a new trial was overruled, and judgment rendered on the verdict.

Error is prosecuted to this court from such judgment.

Various grounds of error are assigned.

We have read the record in this case and have carefully considered the authorities cited in the very helpful and exhaustive briefs which have been filed by counsel.

We shall not attempt to quote from the record in detail, nor to discuss the various authorities relied upon by counsel, but will merely announce the conclusions at which we have arrived after a careful examination of the record and such authorities.

Plaintiffs in error claim that C. S. Olinger, who was the attorney for the testatrix, and a subscribing witness to the will, should not have been permitted to testify concerning certain declarations of the testatrix made to him at and near the time of the execution of the will.

Upon this question we find there is some conflict of authority, but we think the weight of authority and the better reasoning upon this subject support the ruling of the lower court. 23 Am. & Eng. Ency. Law (2 ed.), 79; Thompson on Wills, Section 127.; Page oh Wills, Section 365, and various other authorities cited by counsel.

The privilege conferred by Section 11494, General Code, is solely for the benefit of the client, and may be waived by the client.

We think when a testator procures his attorney as a subscribing witness to his will, he thereby expressly consents that such attorney may testify as fully as any other subscribing witness, and thereby waives the exemption of Section 11494, General Code.

The testator knows that his will is not to- take effect .until his death, and when he instructs his attorney to prepare a will along certain lines, and requests him to sign the same as a witness, it is presumed that he expects the attorney to testify generally as a witness in establishing such will.

The testator’s request of the attorney to act as a witness is equivalent to his calling him as a witness for the purpose of establishing the instrument so witnessed as a valid will.

It is also urged with much force that the trial court erred in refusing to permit plaintiffs in error to prove certain declarations alleged to have been made by Dr. R. B. House shortly after the execution of the will. Dr. House was one of the subscribing witnesses to the will. He testified at the time the will was probated, but died before the trial in the lower court.

The rule is well established that the testimony of a witness cannot be impeached by showing contradictory statements, unless the attention of the witness is first called to such alleged statements and the opportunity afforded him of either admitting, denying or explaining the same.

This rule is not changed by the subsequent death of the witness. Runyan v. Price et al., 15 Ohio St., 1.

It is claimed however by counsel for plaintiffs in error, as to the witness Mrs. Everhardt, that the alleged statements of Dr. House were made immediately after coming out of the room in which the testatrix executed her will and that such statements of Dr. House, one of the subscribing witnesses to the will, constituted part of the res gestae.

The res gestae consisted of the execution of the will in question, and that was accomplished before Dr. House left the room in which the will was executed.

We do not know just how long the will had been executed before the doctor left the room, but, in any event, we are of opinion that Dr. House’s alleged declarations to Mrs. Everhardt did not form any part of the res gestae.

It is claimed that the trial court erred in excluding, in chief, the testimony of Mrs. Jauck and others as to certain, declarations alleged to have been made by Mr. Olinger, who drew the will.

Substantially all of this testimony was admitted in rebuttal and we are of opinion that the trial court properly excluded the same as testimony in chief.

It is further claimed that the trial court abused its discretion in various respects; such as in interrupting certain witnesses, in conducting the examination of certain witnesses to an unwarranted extent, and also in absenting himself from the bench during a considerable portion of the trial.

Before we could reverse the judgment in this case upon any of the above grounds, we would be required to find that the court had clearly abused its discretion in one or more of such respects and had thereby prejudiced plaintiffs in error in the proper presentation of their case.

We concede that even in the trial of a civil case the parties are entitled to the presence of the trial judge during the trial, and that it might be embarrassing to counsel to object to the court’s absence from the court room, yet in order to predicate reversible error in the trial of a civil suit upon the absence from the court room of the trial court during a portion of the trial it should appear that objection was made to such absence, or that the absence of the trial judge clearly prejudiced the rights of plaintiff in error. ,

We also concede that the trial court should not unduly interfere with the examination of witnesses to the prejudice of either party, yet the trial court has a right to guide the trial, and, if necessary, develop the facts requisite to a fair presentation of the case.

From a careful examination of the record we would not feel warranted in finding that the trial court clearly exceeded its authority in any of the above respects and to the extent of preventing plaintiffs in error from having a fair trial.

Exception is also taken to the admission and rejection of certain testimony.

We have considered all the objections of this nature complained of in the briefs of counsel for plaintiffs in error. In some of these instances the substance of the testimony either had already been or was subsequently admitted; in other instances the questions were not proper in form; and, in still other instances, the evidence sought to be introduced was incompetent.

We find no error in these respects which we consider prejudicial to plaintiffs in error.

It is further claimed by counsel for plaintiffs in error that counsel for defendants in error were guilty of misconduct during the argument of the case to the jury.

We have doubt as to whether the alleged misconduct of counsel for defendants in error has been brought into the record as required by the decision of our supreme court in The State of Ohio v. Young, 77 Ohio St., 529.

Assuming, however, that the evidence of alleged misconduct is properly before the court, it appears that only a portion of the arguments of counsel are presented. The record does not disclose what remarks, if any, were made by counsel for'plaintiffs in error that may have provoked some of the remarks now complained of.

In the absence of a full report of the arguments of counsel we would not feel justified in holding that the alleged misconduct of counsel for defendants in error was such as would justify a reversal of the judgment.

Counsel for plaintiffs in error also insist that the trial court erred in giving to the jury in advance of the argument special instruction No. 2, as requested by counsel for defendants in error. This special charge is not as complete as it should have been, but nevertheless it is practically the same, in the respects complained of, as special charge No. 5, which was given by the court to the jury in advance of the argument at the request of counsel for plaintiffs in error.

Special charge No. 5 being given at the request of counsel for plaintiffs in error, we cannot see how it could be prejudicial to also give special charge No. 2 as requested by counsel for defendants in error.

It is admitted that this phase of the case was properly stated by the court in the general charge to the jury.

We are also of opinion that the alleged misconduct of the jury is not supported by the weight of the evidence.

The newly-discovered evidence referred to was largely cumulative, and we think the trial court did not err in refusing to grant a new trial on the ground of newly-discovered evidence.

There was a sharp conflict in the testimony. A number of witnesses called by defendants in error testified to a state of facts, which, if believed by the jury, would justify the verdict which was returned. It is equally true that a number of witnesses called by plaintiffs in error testified to a state of facts, which, if believed by the jury, would have required a different verdict.

The decision of the case was largely a question of determining the credibility of the various witnesses and the weight which should be given their testimony. These are questions which are peculiarly within the province of the jury, and from a careful consideration of the entire record we would not feel warranted in disturbing the judgment upon the ground that the verdict is against the manifest weight of the evidence.

We have considered all the assignments of error urged by counsel for plaintiffs in error in their briefs, bút, finding no error in the record which we think constitutes error prejudicial to plaintiffs in error, the judgment of the lower court will be affirmed.

If desired, a suspension of the execution of the judgment for twenty days will be allowed, so as to enable counsel to present the case to the supreme court.

Judgment affirmed.

Allread and Ferneding, JJ., concur.


author: Lieghley, J.

text:
    Mathews, etc., v. Board of Education of Cuyahoga County et al.

      Schools—Transfer of territory—Uninhabited property—Railroad right of way—Board of education—Powers governed by statutes. '

    1. A comity board of education is a creature of statute, and the exercise of the powers granted to it is limited to those expressly given and those contained by reasonable intendment in the act creating it.
    2. A county board of education is not authorized to transfer vacant property, its power in this respect being limited to inhabited property.
    (Decided November 19, 1917.)
    Appeal : Court of Appeals for Cuyahoga county.

      Mr. William O. Mathews and Mr. Ben B. Wick-ham, for plaintiff.

      Mr. Samuel Doerfler, prosecuting attorney, and Messrs. Locher, Green & Woods, for defendants.
   Lieghley, J.

The parties stood in the same order below.

At one time the territory now included within the village of Bay and within the village of Dover constituted one unit of territory. Thereafter the village of Bay withdrew under proper proceedings, and within its limits was included all of the territory north of the southerly line of the right of way of The New York, Chicago & St. Louis- Railroad Company, which was the northerly part of what was formerly Dover. The Bay village school district lines were coterminus with the boundaries of Bay village. Assuming to act under authority of Section 4692, General Code, the board of education of Dover district, on November 11, 1916, petitioned the county board of education of Cuyahoga county to detach said railway right of way from Bay district and attach the same to Dover district. This petition came up for hearing before the county board on December 9, 1916, and action thereon was favorable. Three notices of the proposed transfer were posted in the territory proposed to be transferred, notice thereof published in the Cleveland Leader, and a map showing the boundaries of the transferred territory duly filed with the auditor. Within thirty days after the adoption of the resolution granting the prayer of the petition by the county board, the railroad company and a majority of the qualified electors of Bay district filed a written remonstrance to the transfer with the county board.

The plaintiff, as a taxpayer, brought suit against the county board of education, county auditor and county treasurer to restrain the consummation of said transfer, grounding his claim for relief upon illegality of the proceedings, financial injury, and loss to plaintiff and other taxpayers in the village of Bay, by reason of a reduction in the tax duplicate to the extent of the value of said right of way, amounting to about four hundred thousand dollars ($400,000.00), etc.

The defendants filed an answer, in which is set up the proceedings of the county board substantially as above recited, and in addition thereto the extreme inequality in the burdens borne by the taxpayers in the two districts by reason of the difference in number of schools, pupils and teachers, and the great difference in the taxable value of the property within the territory of each. Defendants admit that the transfer will be consummated unless restrained by the court.

A demurrer was filed by plaintiff to the answer of defendants, which was sustained by the court below, and the defendants stating in open court that they did not desire to plead further the relief prayed for in plaintiff’s petition was granted. From this judgment or decree appeal was perfected.

Defendants rely for authority for the proceedings of the county board to transfer said right of way upon Section 4692, General Code. Plaintiff claims that said section should be read with Section 4736, General Code, and that Section 4692 is limited in the purposes for which the county board may transfer territory to those expressed in Section 4736.

Sections 4692 and 4736, as amended in 1915 (106 O. L., 397), read as follows:

“Sec. 4692. The county board of education may transfer a part or all of a school district of the county school district to an adjoining district or districts of the county school district. Such transfer shall not take effect until a map is filed with the auditor of the county in which the transferred territory is situated, showing the boundaries of the territory transferred, and a notice of such proposed transfer has been posted in three conspicuous places in the district or districts proposed to be transferred, or printed in a paper of general circulation in said county, for ten days; nor shall such transfer take effect if a majority of the qualified electors residing in the territory to be transferred, shall, within thirty days after the filing of such map, file with the county board of education a written remonstrance against such proposed transfer. If an entire district be transferred the board of education of such district is thereby abolished or if a member of the board of education lives in a part of a school district transferred the member becomes a non-resident of the school district from which he was transferred and ceases to be a member of such board of education. The legal title of the property of the board of education shall become vested in the board of education of the school district to which such territory is transferred. The county board of education is authorized to make an equitable division of the school funds of the transferred territory either in the treasury or in the course of collection. And also an equitable division of the indebtedness of the transferred territory.”
“Sec. 4736. The county board of education shall arrange the school- districts according to topography and population in order that the schools may be most easily accessible to the pupils, and shall file with the board or boards of education in the territory affected, a written notice of such proposed arrangement; which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board, file a written remonstrance with the county board against the arrangement of school districts so proposed. The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof. The county board of education is authorized to appoint a board of education for such newly created school district and direct an equitable division of the funds or indebtedness belonging to the newly created district. Members of the boards of education of the newly created district shall thereafter be elected at the same time and in the same manner as the boards of education of the village and rural districts.”

Neither of said sections contains an express grant of power to transfer territory for the purpose of adjusting values. It was conceded by counsel in argument that this was the purpose of this transfer. It is an attempt to transfer vacant property in the sense that the property proposed to be transferred is not inhabited. Plaintiff claims there is no authority for this attempt. An examination of the language of said Sections 4692 and 4736 as enacted in 1914 (104 O. L., 135 and 138), of which the above are 1915 amendments, may help us. They read as follows:

“Sec. 4692. Part of any county school district may be transferred to an adjoining county school district or city or village school districts by the mutual consent of the boards of education having control of such districts. To secure such consent, it shall be necessary for each of the boards to pass a resolution indicating the action taken and definitely describing the territory to be transferred. The passage of such a resolution shall require a majority vote of the full membership of each board by a yea and nay vote, and the vote of each member shall be entered on the records of such boards. Such transfer shall not take effect until a map, showing the boundaries of the territory transferred, is placed upon the records of such boards and copies of the resolution certified to the president and clerk of each board together with a copy of such map are filed with the auditors of the counties in which such transferred territory is situated.”
“Sec. 4736. The county board of education shall as soon as possible after organizing make a survey of its district. The board shall arrange the schools according to topography and population in order that they may be most easily accessible to pupils. To this end the county board shall have power by resolution at any regular or special meeting to change school district lines and transfer territory from one rural or village school district to another. A map designating such changes shall be entered on the records of the board and a copy of the resolution and map shall be filed with the county auditor. In changing boundary lines the board may proceed without regard to township lines and shall provide that adjoining rural districts are as nearly equal as possible in property valuation. In no case shall any rural district be created containing less than fifteen square miles. In changing boundary lines and other work of a like nature the county board shall ask the assistance of the county surveyor and the latter is hereby required to give the services of his office at the formal request of the county board,1*’

A comparison of these sections readily reveals material changes in the language employed and the subject-matters covered. A provision in one is omitted, or is transposed to another section with additions and omissions. The following provision contained in Section 4736 of the act of 1914 is entirely omitted in substance and in fact from Section 4736 of the act of 1915, and was not reenacted in any other section:

“In changing boundary lines the board may proceed without regard to township lines and shall provide that adjoining rural districts' are as nearly equal as possible in property valuation.”

It was contended by plaintiff that this provision was originally in the act for the express purpose of giving to county boards the power to make an initial division of districts and adjustments of valuations, but that, when once done, the legislature intended to deprive county boards of further authority to manipulate tax duplicates. It is claimed by defendants that, notwithstanding the fact that said provision was omitted in the subsequent amendment, the power to make this transfer is included in the general powers granted in Section 4692.

We think some manifest intent and purpose must be conceded to legislative action.

If, as claimed by plaintiff, the omission by the legislature of this sentence relating to property valuation was deliberate and intentional, with the object in view of ending the powers of the county board in this respect, then, of course, the relief prayed for by plaintiff should be granted.

The purposes for which transfers may be made by the county board, under authority of Section 4736, General Code, as now in force, are limited to questions of accessibility of pupils and schools, or vice versa. If, as claimed by plaintiff, the general powers conferred in Section 4692 are restricted to the purposes expressed in Section 4736, and that a proper construction of the two acts requires that the same be read together, then we necessarily conclude that the relief prayed for by plaintiff should be awarded to him.

But it is claimed by defendants that the general grant of power contained in the first sentence of Section 4692, as now in force, gives to the county board the right to transfer territory for any purpose that in their discretion and judgment is for the betterment of the schools and to the best interests of the school system. It is claimed that Section 4692 should be read and construed alone. Suppose we do. The first sentence grants power generally. Immediately following it the act provides that said transfer shall not become effective unless three things- are done: first, a map of the territory proposed to be transferred shall be prepared and filed with the auditor of the county; second, a notice of said proposed transfer shall be posted in the district to be transferred; third, the same shall not be effective if a majority of the qualified electors residing in the territory to be transferred shall remonstrate within thirty days after the filing of the map. The transfer shall not be effective unless notice is given and opportunity to remonstrate is afforded. In this case nobody inhabits the right of way. Notice published thereon is notice to no one. Time to remonstrate avails nothing, for no one lives in the territory to file a remonstrance.

It seems to us very clear not only from the language of this section but also from that of Sections 4696 and 4736 that the legislature in enacting the amendments in 1915 intended to confine the powers of the county board to dealing with persons and pupils, with the sole object in view of the more efficient administration of the schools, and did not intend that the county board should have supervision over property valuations and tax duplicates, or the right to manipulate and readjust the same.

True it is that the railroad company and the majority of the electors of Bay district filed a re.monstrance with the county board within the statutory time, but it will be observed that the controlling right to file a remonstrance is limited to the qualified electors residing in the territory to be transferred. The electors of Bay do not reside therein, nor is the railroad company an elector. These remonstrances were filed in an apparent effort to comply with Section 4736. These cannot hinder the transfer for the evident reason that such are provided for only in case of transfer for the purpose of accessibility of schools. It is admittedly another purpose that pervades this case, authority for which must be found in Section 4692, as likewise the instrument for defeating the same. And this is notice to, and a remonstrance by, the majority of the electors residing in the district to be transferred.

The county board of education is a creature of statute, and the exercise of the powers granted to it should be limited to those expressly given and those contained in the act by reasonable intendment. The requirements, by the language of Section 4692, to make a transfer effective, seem to us to make it very certain that the legislature did not intend that power should reside in the county board to transfer vacant property; nor from the language can it be claimed. It seems clear to us that power is granted only to transfer inhabited property, in which transfer the electors shall have a voice. By the provisions of Section 4696 the electors have a voice by the grant of the right to petition for a transfer. By Section 4736 the electors may file a written remonstrance even in the case where the board makes a transfer for the purpose of accessibility to the schools. We decide that the county board in this case is about to transcend its power and will do so unless restrained.

The defendants are perpetually enjoined as prayed for in the petition.

Judgment is rendered against the defendants for costs.

Injunction granted.

Grant and Carpenter, JJ., concur.


text:
    American Bonding Co. et al. v. The Board of Education of Cincinnati.

      Surety—Estoppel—Bond of contractor—Payment of contractors compensation before due — Consent of surety to such payment —Effect of notice to surety of suit against ovtfner.

    1. A bonding company having been notified of the pendency and nature of an action against a board of education, to which board it is liable on the bond of a contractor signed by it as surety, and having been given an opportunity to make a defense in the case, and having failed to do so, is concluded and bound by the judgment rendered in' such action, and cannot thereafter question the correctness thereof in another action.
    2. Where an owner makes a payment to a contractor in advance of the time when the same was due under the contract, but such payment is made upon the express written consent of the contractor’s surety, the surety is estopped from thereafter complaining of such payment.
    (Decided May 7, 1917.)
    Error: Court of Appeals for Hamilton county.

      Mr. Miller Outcalt and Mr. Dudley Outcalt, for American Bonding Co'., and Messrs. Kornhauser & Morgan, for Michael J. Heintz, plaintiffs in error.

      Mr. Charles A. Groom, city solicitor, and Mr. Constant Southworth, assistant city solicitor, for defendants in error.
   Gorman, J.

In the common pleas court defendants in error recovered a judgment against the plaintiffs in error in the sum of $12,992.54, on a bond executed by the American Bonding Company in favor of the state of Ohio for the benefit of defendants in error.

The plaintiff in error Michael J. Heintz had entered into a contract with the defendants in error to erect a school building in Avondale, and to secure the performance of that contract he executed the bond sued upon in this action. After the building was partly erected Heintz defaulted and failed to complete the work. Thereupon the board of education of the city of Cincinnati notified the surety to complete the contract, which it failed and refused to do, and the defendants were obliged to complete the building.

After the completion of the building there remained in the hands of the board of education, of the contract price, $7,685.90.

It further appears from the record that Heintz had failed and neglected to pay to his subcontractors and materialmen moneys due them for work and materials furnished for the erection of the building in the sum of approximately $19,000. A suit was brought by the subcontractors and materialmen against the board of education to recover the amount due them for their work and materials, and in case No. 142228 on the docket of the court of common pleas, entitled The Pittsburg Plate Glass Company v. Michael J. Heintz et al., a recovery was had in favor of these subcontractors and materialmen, and the board of education was obliged to pay in excess of the amount held from the contract price, $7,685.90, the amount of recovery in the last action brought in the court of common pleas.

In case No. 142228 of the court of common pleas the American Bonding Company was made party defendant, and was subsequently dismissed from the action, but thereafter the board of education vouched in the bonding company by sending notice to it of the pendency and nature of the action, and requesting the bonding company to appear by counsel and participate in defense. This the bonding company refused to do, and after the judgment was rendered against the board of education in said case No. 142228 the board of education notified the bonding company that it was content with the judgment, but that if the bonding company desired to prosecute error or to take any other steps to have the judgment reversed or reviewed it was at liberty to do so; but neither the board of education nor the bonding company took any steps to review the judgment, or appeal therefrom, and said judgment in case No. 142228 in favor of the subcontractors and materialmen remains in full force and effect, unreversed and unmodified, and the board of education has paid to the various subcontractors and materialmen the amounts so found to be due them by said court in said case.

Thereupon this action was brought by the board of education to recover the amount which it had paid to the various parties in case No. 142228, in excess of the amount held in its hands under the contract with Heintz. The American Bonding Company and Heintz prosecuted error to the judgment rendered in the common pleas court, and it is claimed that there is error in the record to the prejudice of both plaintiffs in error.

The bonding company having been notified in the former action, No. 142228, and having also been a party to that action, although subsequently dismissed, and having been given an opportunity to make a defense in the case and having failed to do so, the court holds that the American Bonding Company is concluded and bound by that judgment« and cannot question the correctness thereof in this action.

This court in Cincinnati v. Boston, 7 Ohio App., 350, laid down the rule that a party being vouched in such a case is bound to appear and make a defense, and if he fails to do so he will be concluded and bound by the judgment. In support of this rule see Bank v. Bank, 68 Ohio St., 43; Cincinnati v. Diekmeier, 31 Ohio St., 242, and numerous other authorities cited in the case of Cincinnati v. Boston, supra.

It is further claimed by the American Company that the board of education paid to the contractor Heintz $8,000 in advance of the time when same was due under the contract, but the; record discloses that this payment was made to! Heintz upon the express written consent of the American Bonding Company, given before the money was paid to Heintz. And it further appears that the board of education refused to pay this sum to Heintz unless the bonding company would consent to the payment thereof. And it further appears that this $8,000 paid to Heintz was paid out to the subcontractors and materialmen upon the checks of Heintz, countersigned by the bonding company’s agent, duly authorized in the premises.

Under such circumstances we hold that the American Bonding Company is estopped to complain of the payment of this money advanced to Heintz before it was due under the contract.

It is further claimed by the American Bonding Company that the board of education paid to the contractor Heintz from time to time moneys in excess of the amounts due him under the estimates. The contract provided that payments were to be made to Heintz from time to time upon estimates made by the superintendent of the building for the board of education. The evidence discloses that these payments were made to Heintz from time to time upon estimates so made by the superintendent of the building. It appears that the superintendent was not overly careful in the making of his estimates, but no money was paid except under these estimates, and from these estimates twenty per cent, was retained until the completion of the contract.

There is no claim of any bad faith or that fraud was perpetrated, either upon Heintz or the bonding company; but it is claimed that the estimates exceeded the amount of money actually due as the work progressed. In the absence of any bad faith or fraud we hold that the American Bonding Company, the surety in this case, was not prejudiced by the fact that the estimates exceeded the amounts that should have been computed. It was well within the rights of the board of education to pay upon the estimates made by the superintendent of the building.

In the case of Y. M. C. A. v. Gibson, 58 Wash., 307, the court held that so long as the payments were made upon the estimates of the person who was to make the estimates, even though they were in excess of the amount the contractor was entitled to, in the absence of bad faith, the surety would be bound by these payments. See Howard County v. Baker, 119 Mo., 397.

We fail to see how the bonding company was prejudiced in any way by the payment of these moneys to the contractor. It was the obligation of the contractor to pay his materialmen and subcontractors, and if he received the money from the board of education to pay them and failed to do so, the surety obligated itself to be liable in case the contractor failed to perform every term and condition of the contract.

. So far as the record discloses, we find no errors therein prejudicial to the American Bonding Company.

As to the plaintiff in error Michael J. Heintz it appears that he filed an answer in which he set up that he had been adjudged a bankrupt and discharged therefrom, and that the board of education had notice thereof. The board of education, in the court below, filed a reply to this answer setting up that the claim of the board of education against Heintz had not been scheduled in bankruptcy and that the claim was contingent and not provable in bankruptcy. While Heintz filed this pleading, when the case came on for trial he failed to appear, and he failed to offer any evidence in support of his claim that he had been adjudged a bankrupt. And in this state of the record we are unable to see how any error was committed prejudicial to him. In the absence of any proof, and with the denial of the averments of his answer by the board of education, the court was warranted in rendering a judgment against Heintz in the full amount.

For the reasons stated the judgment of the court below is affirmed.

Judgment affirmed.

Jones, P. J., and Hamilton, j., concur.


text:
    Blocher et al. v. Trick et al.

      Wills—-Acceleration of remainders—Widow elects not to take — Renounces trust in her favor—Other trusts not terminated.

    Where a widow elects not to take under the will of her deceased husband, which creates a trust in her favor, her renunciation, in the absence of any other disposition of the property covered by the said -trust, accelerates the enjoyment of the property by the remaindermen, subject to the dower interest"-of the ■widow therein but without terminating -another independent trust created by said will.
    (Decided October 25, 1917.)
    Appeal : Court of Appeals for Knox county.

      Mr. Harry W. Koons, for plaintiffs.

      Mr. L. C. Stillwell, for defendants.
   Houck, J.

This is an action in partition which was originally commenced in the court of common pleas of this county, and is here on appeal from the judgment of that court.

While the action is one in partition, yet the question for determination by this court is as to the true construction of items 2 and 3 of the last will and testament of John M. Blocher, deceased. These items read:

“Item 2. I desire the home property, business building and flats located at corner of High and Sandusky streets, in Mt. Vernon, Ohio, to remain in my name, as a part of my estate, for a period of ten years, unless my wife should die sooner, and desire that the same shall be managed by my executors hereinafter named, and from the proceeds arising therefrom, should the same be sufficient, and if not then from any property that I may leave, I direct my said executors to pay to my said wife, Malinda Blocher, the sum of three hundred dollars each and every year during her natural life, the same to be paid monthly, the same to be in lieu of her dower interest and distributive share in my estate.
“Item 3. At the end of said ten years, or at the death of my said wife, should she die before that time, I direct that my said executors shall sell said real estate, and from the proceeds arising therefrom divide the same share and share alike among my living children, or those that are living now, namely, Harry C. Blocher, Ida Blocher Trick, Bird Dixon, Clifford Blocher and Grace Rawlinson, and should any of said children die before the disposition of said property, then I desire that the children of any child so dying shall have the share of the child dying. However, it is my will, and I hereby direct that the share from the proceeds of said property going to my son Harry C. Blocher shall be kept and managed by said executors, and the proceeds from the same be paid to my said son, and at the death of my said son Harry C. Blocher then I direct that said executors shall pay the said amount so held in trust for Harry C. Blocher to his two children share and share alike.”

So far as the facts in this case are concerned they were submitted on an agreed statement of facts entered into by and between the parties to the suit. We think it necessary to refer to but two of them, because for a proper determination of this cáse it is not necessary to consider more than these two, namely, that Malinda Blocher, the widow of John M. Blocher, elected not to take under the last will and testament of her said husband, and, second, that all of the allegations in the petition of plaintiff are true.

The first question to be determined is with reference to the proper construction to be placed upon item 2 of said will, in view of the election of the widow of John M. Blocher not to take under the provisions of his will. We must determine whether or not the renunciation of the widow has the effect of accelerating the enjoyment of the remaindermen.

It was a legal right extended to Malinda Blocher, the widow of John M. Blocher, to refuse to take under the provisions of his will, and in our. judgment this renunciation on the part of the widow terminated the trust created in item 2 of the last will and testament of John M. Blocher, deceased, and such act on the part of the widow accelerated the enjoyment of the devisees, because in the absence of any other disposition the property described in said item 2 passed intestate to the children of the testator, and said children took the property devised to them in item 2 as intestate property, subject, however, to the dower interest of the surviving widow therein.

The next question that ¡arises is as to whether or not the claim of counsel for Harry C. Blocher is well taken, namely, that by reason of the termination of the trust created in item 2, by the failure of the widow to take under the will, the trust created for Harry C. Blocher also becomes inoperative. To this doctrine and theory we can not subscribe. The trust estate created for the benefit of Harry C. Blocher was independent of and separate from any other provision contained in the will of John M. Blocher, and, as a matter of law, we find the trust estate created therein is not terminated.

Thus it must follow, from what we have already said, that in our judgment the plaintiffs are entitled to the relief prayed for in their petition, and partition is hereby granted, and this cause is hereby remanded to the common pleas court for execution of the judgment herein entered, and for further proceedings as required by law.

Judgment for plaintiffs.

Powell and Shields, JJ., concur.


text:
    The State, ex rel. The Moore Oil Co., v. Dauben, Building Inspector.

      Municipal corporations—Building ordinances—Gasoline filling stations—Consent of property owners—Enlargement of existing structure—Refusal of permit—Manda/mus.

    When an owner of a public oil and gasoline filling station tears down an existing structure and prepares to erect a new one w'ith greatly increased storage capacity and equipment, with a new driveway and means of access thereto, and arranges to equip the new building with electrical displays, such person does not fall within the provisions of an exemption clause in a city ordinance in favor of owners or operators of filling stations erected before the taking effect of the ordinance.
    (Decided November 7, 1917.)
    In Mandamus : Court of Appeals for Franklin • county.

      Messrs. Webber, McCoy & Jones and Mr. H. S. Kerr, for relator.

      Mr. Henry I.. Scarlett, city attorney; Mr. James M. Butler; Mr. H. E. Burns and Mr. L. L. Boger, for defendant.
   Kunkle, J.

This is an action in mandamus in which the relator, The Moore Oil Co., seeks to compel the defendant, Joseph Dauben, as Building Inspector of the City of Columbus, to issue a building permit to relator for the reconstruction of a public oil and gasoline filling station, including tanks and buildings, at the corner of Broad and 21st streets in the city of Columbus.

Defendant refuses to issue such permit upon the sole ground that the relator has not complied with the provisions of Section 1 of Ordinance No. 28932 of the city of Columbus, regulating the location, erection and maintenance of public oil filling stations, which ordinance was passed by the council of the city of Columbus July 19, 1915, and approved by the mayor of said city July 23, 1915. The provisions of said ordinance are as follows:

“Section 1. That it shall be unlawful for any person, firm or corporation for themselves or as agents, renters, or lessees, to locate, build, erect, construct, maintain, or operate any public gasoline or oil filling station or sales depot on or within 187% feet from curb line of any street in the city, or to construct or maintain a driveway from the street over the curb and sidewalk to such station or depot, when three-fourths (%) of the buildings on both sides of the street for a distance of five hundred (500) feet in either direction from the proposed location of each wall of such oil filling station or sales depot are used exclusively for residence purposes, without first securing the written consent of two-thirds (2/3) of the owners of the property abutting on the street for a distance of 500 feet in each direction from the median line of such proposed oil filling station or sales depot, according to the frontage on both sides of the street.
“Section 2. Any person, firm, or corporation, or any agent, renter, or lessee, of any such person, firm or corporation who shall violate any of the provisions of this ordinance shall be fined not less than $100 nor more than $500 for each offense, and each week of continued violation of this ordinance shall constitute a separate offense after the first prosecution has been begun.
“Section 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law, but shall not apply to or be operative against any owner or operator of any public gasoline or oil filling station or sales depot heretofore erected unless 2/3 of the owners of the property for whose consent this ordinance makes provision file with the city clerk within thirty days after this ordinance takes effect their written protest against the further operation of such station or depot.u

When the said ordinance became effective the relator was the lessee, and subsequently became the owner, of the real estate situated at the corner of Broad and 21st streets in the' city of Columbus, and had erected and was maintaining a gasoline and oil filling station on said premises.

In April of the present year, with a view to enlarging its business, the relator tore down the original buildings on the said premises and prepared plans and specifications for the erection of a more elaborate building, with rest rooms for patrons, with greatly increased storage capacity, and with increased facilities and equipment for the transaction of its business.

The original plant was conducted on the said premises by means of access thereto from an alley, pn the rear of the said lot, and from 21st street.

The plans for the proposed structure involve an additional passageway over the sidewalk on Broad street.

Counsel for defendant claim that the proposed Structure should be regarded as a new structure, and would therefore fall within the scope of Section 1 of the ordinance above referred to.

The relator contends:

1. That the said ordinance is unconstitutional.

2. That if the ordinance is found to be constitutional, the relator is exempt, by virtue of the provisions of Section 3 of said ordinance.

We have carefully considered the unusually exhaustive and helpful briefs which have been filed by counsel. We shall not attempt to analyze or distinguish the various authorities cited therein, but will merely announce the conclusion at which we have arrived after an examination of such authorities.

We have previously considered the question of the constitutionality of Section 1 of the ordinance in question. Since our decision in the case of City of Columbus v. Chas. F. Speice (unreported, Franklin county court of appeals) the supreme cofirt of the United States has affirmed the celebrated billboard case of Thomas Cusack Co. v. City of Chicago, 242 U. S., 526, decided January, 1917, and has upheld the constitutionality of the billboard ordinance in question, which ordinance involved a principle similar to the one in controversy here.

In the Speice case the validity of Section 1 of Ordinance No. 28932 was conceded by the court to be constitutional, and we are confirmed in that opinion by the decision of the supreme court of the United States in the billboard case above referred to.

This court also held in the Speice case that the ordinance should be considered prospectively, and that it did not apply to the maintenance and operation of a gasoline or oil filling plant in existence at the time the ordinance became effective.

The question now for consideration is whether the said ordinance exempts an owner or operator of an existing business, who tears down his buildings and undertakes to rebuild them with greatly-increased facilities, including additional means of access to said premises, and therefore imposing additional burdens upon the adjacent streets.

Construing Section 3 in connection with the rest of the ordinance, we have reached the conclusion that the intention of said ordinance was to exempt only the existing capital and business of public gasoline and oil filling stations and to relieve the existing owner of such stations from being subjected to a possible loss of an existing investment and business.

We do not intend to hereby express an opinion as to the extent to which an owner of an existing property may go in the way of repairs or improvements to an existing plant without subjecting himself to the provisions of Section 1 of said ordinance.

We are of opinion, however, that when an owner tears down an existing structure and prepares to erect a new one with greatly increased storage capacity and equipment, with a new driveway and means of access thereto, and arranges to equip the new building with electrical displays such as here contemplated, that such person falls within the provisions of Section 1 of said ordinance.

We have carefully considered the plans, specifications and other evidence which have been presented and are of opinion that the proposed improvements do not bring the relator within the exemption provided in Section 3 of said ordinance.

In view of the conclusions above stated,' it is apparent that the relator has not established a clear right to the relief sought.

Peremptory writ refused.

'Allread and Ferneding, JJ., concur.


author: Sayre, J.

text:
    Porter v. The State of Ohio.

      Larceny—■Intent after tortious taking.

    If the original act of talcing was a trespass and subsequently while the defendant is in possession of the property he forms the intent to steal the crime of larceny is committed.
    (Decided December 26, 1917.)
    Error: Court of Appeals for Scioto county.

      Mr. Theodore K. Funk, for plaintiff in error.

      Mr. Joseph T. Micklethzvaite, prosecuting attorney, for defendant in error.
   Sayre, J.

The defendant, John Porter, and two associates were indicted for grand larceny, charged with stealing an automobile owned by Lawrence Fitch, and taken out of his garage in New Boston, Scioto county, Ohio, without his knowledge or consent. The machine was driven to Portsmouth, and back through New Boston out of Scioto county, and through Lawrence county to Huntington, W. Va., where the same was sold and the proceeds divided between the defendants. There was evidence tending to show that when the automobile was taken out of the owner’s garage there was no intent on the part of the defendants to steal it, but simply to take a “joy-ride.” The trial court charged the jury at defendant’s request before argument that to constitute larceny the intent to steal must be present in the mind of the defendant at the time of the taking of the property. This instruction was repeated in the general charge; but later therein the jury were instructed that if the intent to steal was formed by the defendant after the taking of the automobile, and while he was in Scioto county with it, then the crime of larceny was- committed in that county.

Unquestionably here are two conflicting propositions of law. If the first proposition is correct, then there could be no larceny if the intent to steal arose after the automobile was removed from the garage of the prosecuting witness. If, however, the second proposition is correct, then the first proposition, although erroneous, was not prejudicial to the defendant, for the effect of it was only to make it more difficult for the state to prevail and was thus favorable to the defendant. If the first proposition is correct, then the giving of the second was highly prejudicial to the defendant because of the evidence tending ¡to show that the original taking was without intent to steal.

The rule announced in 25 Cyc., 46, and in 17 Ruling Case Law, page 25, Section 28, is that the intent to steal must exist at the time of the taking, and very many cases are therein cited as supporting this rule. But a careful reading of the reports will show that the rule is announced in a large number of cases where the original taking was entirely lawful, and it is admitted on all hands that if such was the character of the taking then there can be no larceny. Two essential elements of larceny are trespass, or asportation by trespass, and the intent to steal, and these must be simultaneous, the possession was secured without trespass, that is, if the act of acquiring possession was lawful, then the possession remains lawful and no subsequent act of the defendant in connection with the property can constitute larceny. So if the original securing possession was a trespass it remains a trespass as long as the possession of the property continues in the defendant, and if to that is added the intent to steal the crime is complete because both essential elements of larceny are ^present. State v. Coombs, 55 Me., 477, 92 Am. Dec., 610; Commonwealth v. White, 11 Cush, (Mass.), 483; State v. Davenport, 38 S. C, 348, 17 S. E. Rep., 37; King v. State (Ala.), 72 So. Rep., 552; Regina v. Riley, 14 Eng. Law & Eq., 544; 18 Am. & Eng. Ency. Law (2 ed.), 507.

The thought which influences us to adopt the rule announced in the authorities last above referred to is that we can see no difference in t'he character of the act whether the intent to steal is formed at the time of the taking, or thereafter during the time the defendant has possession, provided the possession was unlawfully secured. Suppose the defendants in this case did not have the intent to steal when they drove the car out of the garage of the prosecuting witness, but did form such intent a half hour later as they were driving along the highway, what difference was there in the character of the act after the intent to steal was formed than there would have been had the intent to steal been present when possession of the automobile was secured? Certainly there would be none. When there is an unlawful possession secured and kept, followed by the intent to steal, there is a felonious “taking” within the meaning of the technical form of indictment for larceny. To take in this connection means to appropriate for use, to get possession of and hold. The first act of laying hands on the property does not exhaust the meaning of the word “take,1” but there is included the act of holding for use. So, if the defendant unlawfully gets possession of property, and keeps the same until he forms the intent to steal, he feloniously “takes” the same when to such unlawful holding there comes the intent to steal. In the case under consideration the “taking” began with the first act of. the defendants in moving the automobile. The “felonious taking” began when the intent to steal was formed.

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

Judgment affirmed.

Middleton and Walters, JJ., concur.