author: Wiseman, P. J.

text:
    In re Estate of Howard.

      (No. 3958
    Decided February 11, 1947.)

      Mr. Henry A. Remhard and Mr. Fred C. Rector, for appellant.

      Mr. Warren A. Smith and Messrs. Humphrey & Montgomery, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin county, Ohio. A complaint was filed under Section 10506-67, General Code, by Charles O. Howard, administrator of the estate of Oren J. Howard, deceased, against Estelle Lanman, alleging- that she had “concealed, embezzled, or conveyed away moneys, goods, chattels, things in action or effects belonging to the estate of the decedent.” The matter was tried to the court which found the defendant guilty of concealing and withholding moneys, etc., belonging to the estate in the amount of $4,250. The defendant filed a motion for a new trial and also a motion to dismiss which were overruled. In passing- on the motions the court held that the 'defendant should not have been found guilty of “concealment,” but was guilty “of having-been in the possession of” moneys belonging- to the estate. The court ordered judgment against the defendant in the amount of $3,050, together with a ten per cent penalty thereon. The complainant filed a motion to amend the complaint by inserting the following: “Or of being of having been in the possession of.” The motion was sustained on the ground that the complaint should be amended to conform to the proof.

From that judgment the defendant has filed her appeal and in the assignments of error contends that' the judgment is against the manifest weight of the evidence and is not sustained by sufficient evidence.

The evidence in this ease shows that the Howards- and the Lanmans were very friendly for many years. When Mrs. Howard became ill in the fall of 1944, Mrs. Lanman gave helpful assistance to Mr. and Mrs. Howard, who were elderly persons. For a few weeks prior to Mrs. Howard’s death, which took place on December 8, 1944, Mrs. Lanman lived in the Howard home. After the death of Mrs. Howard the house was closed and Mr. Howard went to live with the Lanmans. Mr. Howard was' suffering from syphilis in an advanced stage, the seriousness and nature of which the Lanmans claim they did not learn until, a short time before his death. Without any question the Lanmans did give Mr. Howard excellent care and attention. His condition growing worse, he was removed to St. Anthony’s Hospital, and a few days before his death he was committed to the Columbus State Hospital, where he died on March 6, 1946. The defendant presented much testimony as to extent of the care required and care given the decedent. The matter of care was not an issue in the case.

Because of certain questions of law raised in this case an extensive recital of the facts is advisable. The evidence shows that at the time of Mrs. Howard’s death, Mr. Howard owned a home on Carpenter street, which was free and unencumbered, and he had approximately $5,000 in building and loan certificates and savings accounts. Within a few weeks after the death of Mrs. Howard, to wit, on December 21, 1944, the Lanmans ’ secured a deed from Mr. Howard for the Carpenter street property, the consideration clause reciting “one dollar and other valuable considerations and the care, maintenance and support of grantor during his lifetime and payment of funeral expenses after his death by grantees.” The evidence further shows that, immediately after the deed was executed, Mr. Howard, with the assistance of Mrs. Lanman, began to convert into money his building and loan certificates and to withdraw from his savings account. Within a period of a few months practically all such assets were converted into cash.

The evidence further shows the Lanmans had a safe deposit box at the Huntington National Bank and that on January 10, 1945, Mrs. Lanman rented a second safe deposit box at the same bank. She testified that the second box was required because the other box was full. Access to the second box was given to both Mr. Howard and Mr. Lanman. She testified that Mr. Howard requested the use of the second box; that at no’ time did Mr. Howard place any money in the box, but did place a note and mortgage therein. Mrs. Lanman testified that as Mr. Howard withdrew his money, he gave her large sums of money for the following purposes: $500 to give to her brother, and at the same time $500 for her daughter; $100 to make a deposit on the purchase of a new automobile, and later $1,200 for the balance due on the purchase price; $250 for a trip to Florida; $200 for doctor bills; and $200 for miscellaneous expenses. In addition thereto the evidence shows that Mr. Howard expended $1,200 or $1,300 in remodeling the Carpenter street property in the spring of 1945; that the Lanmans sold their residence, where■upon Mr. Howard and the Lanmans moved into the Carpenter street residence, where they continued to reside as one family unit.

The contention that these large sums of money were given to'Mrs. Lanman for the purposes herein mentioned is supported largely by the testimony of Mrs. Lanman, alone. There is very little corroboration except on the part of Mr. Lanman. There is evidence in the record which refutes her claim. Mrs. Lanman was the only one who possessed a key to the safe deposit box which was rented on January 10, 1945. Mrs. Lanman opened the box on January 16,1945, and again on May 2, 1945. On the latter date, before going to the bank, Mr. Howard withdrew $500 from the Railroad Building & Loan Company. Mrs. Lanman again opened the box on December 1, 1945, and again on February 27, 1946, at which time she took Mr. Howard’s papers out of the box and revoked Howard’s access to the box. It is significant to note that the box was rented when Mr. Howard began withdrawing his money, and that Mrs. Lanman took his papers from the box and revoked his access to the box on February 27, 1946, at a time when she, according to her own statement, did not expect him to recover.

The testimony of Mrs. Lanman that Mr. Howard requested the use of the box, but placed in it only a note and mortgage, and did not use it for safe keeping • of his money, presents an interesting factual situation. Who was in possession of the money? Mr. Lanman testified that the money which Howard gave Mrs. Lanman was placed in their safe deposit box in the Huntington National Bank, not in the second box rented, but in the first box, which Mrs. Lanman stated was full. There is no evidence as to the date when this money was placed in the bos Without question Mrs. Lanman came into possession, of this money. Whether she was given the money as she claims for certain.purposes or appropriated it to her own use and placed it in her own box is a question for the court to determine. There is strong evidence in this case from which the trial court concluded that Howard never gave that money to Mrs. Lanman for the alleged purposes.

The administrator, Charles O. Howard, the brother of the decedent, testified that the week before the decedent went to the hospital, the decedent told him that he had $5,000 in the Huntington National Bank in a safe deposit box and a savings account in the Bailroad Building & Loan Company. Furthermore, a letter written by the decedent under date of October 4, 1945, to his two sisters in Elyria, Ohio, was introduced, ovér ■objection, in which the decedent wrote about the remodeling of the home, and in the letter stated: “I have a life lease on the home made out by a lawer. It was made leagel and recorded at the cort house. Then I rented a safety box at the Hunting Bank and put $5,000 in it. Also I have a niee savings acont at the railroad building loan. I am not telling you this to be braging or think I have the world with a fence arond it but I think you both should know it.” This evidence would create a grave doubt as to whether the decedent transferred this money to Mrs. Lanman.

Now, let us examine the record as to the conduct of Mrs. Lanman. Mrs. Lanman testified that the money given to her for her brother was never delivered to her brother and the money given-to her for her own daughter had never been deposited to her credit, although •one year and three months had elapsed since she claims the money was given. Neither was a new automobile purchased with the money given for that purpose. According to the testimony of Mr. Lanman this money rested in their safe deposit box. The most damaging-piece of evidence introduced to refute the claim of Mrs. Lanman is a letter which she wrote to the decedent’s two sisters under date of March 2, 194(3, which was four days before his death, but a few days after she had entered the second safe deposit box, took from it the decedent’s papers and revoked his access to the box. A part of this letter is as follows:

“I guess you know he deeded his home to us when Nora died, for taking care of him the rest of his life, so we are paying all his bills. * * *

“Oren has money in the bank that will go to you girls and Ike. I will tell you about it later. He wont, get better.”

After the appointment of the administrator Mrs. Lanman turned over to him the personal effects and papers of the decedent, but made no mention of the money in question.

After the death of Mrs. Howard, the Lanmans and Mr. Howard always lived together as one family unit which gave rise to a confidential relationship. The evidence in this case must be weighed and considered in light of this confidential relationship.

After a consideration of all the evidence we are of the opinion that the judgment of the trial court was not against the manifest weight of the evidence and is sustained by sufficient evidence except in regard to two items. The defendant claimed that the decedent gave her $1,300 to purchase a new automobile. The trial court found against the defendant on that item in the amount of $1,400. The undisputed evidence shows that only $1,300 was involved. There was sufficient corroboration of Mrs. Lanman’s claim that he gave her $250 for the Florida trip to justify a finding in her.favor on this item.

The defendant has assigned as error the introduction of the letter written by the decedent, contending that such evidence should have been excluded as hearsay. , That question was effectively disposed of in the case of In re Estate of Evans, 71 Ohio App., 127, 41 N. E. (2d), 410, decided by the Second Appellate District Court of Appeals, in which it held:

“It is error for the court to exclude testimony of witnesses as to statements made by the' decedent to the effect that the property in question was placed in the hands of the one claiming title thereto for safekeeping only, and contradicting such person’s testimony that' a valid gift was intended. ’ ’

In our judgment the trial court acted properly in permitting the introduction of the letter as part of the evidence. ■

Under several assignments of error the defendant claims the trial court committed error in overruling the motions of the defendant to dismiss at the close of the complainant’s case and, again, at the close of all the evidence; also, in permitting the complaint to be amended after judgment to conform to the proof; and that the judgment is contrary to law.

Under these several assignments of error two matters are discussed: First, amendment of the -complaint; second, whether this action, in light of the evidence, is' cognizable under Section 10506-67, General Code.

It is urged that a complaint filed' under Section 10506-67, General Code, is a special proceeding, quasi criminal in character and is not subject to an amendment. The authorities have held the proceedings to be special and quasi criminal in character. In re Estate of Black, 145 Ohio St., 405, 62 N. E. (2d), 90; Goodrich v. Anderson, 136 Ohio St., 509, 26 N. E. (2d), 1016; In re Estate of Raymond, 66 Ohio App., 428, 34 N. E. (2d), 821; Halloran v. Merritt, Admr., 48 Ohio App., 135, 192 N. E., 542. We find no reported case deciding the question of amendment.

The purpose of the proceeding is to give an effective, speedy and summary relief in the proper case. The technical rules of pleading are not followed. No answer is required. The statute does not contemplate any other pleading except the complaint. Goodrich v. Anderson, supra; Halloran v. Merritt, Admr., supra; Leonard v. State, ex rel. Scott, Exr., 3 Ohio App., 313; Hendrickson v. Hendrickson, 17 Ohio Law Abs., 39. It is contended that the trial court should have dismissed the complaint which charged, ’’concealment,” at the time it passed on the motion for new trial, at which time the trial court found that the defendant was not guilty of “concealment,” but was guilty of “possession.” In support of that contention the case of Goodrich v. Anderson, supra, is cited, the second paragraph of the syllabus holding that:

“Where, in such proceeding, the defendant is found not guilty of concealing or embezzling assets of the estate of the decedent, the court may not proceed to determine other issues, but has no alternative except to dismiss the complaint.”

In passing it might be well to point out that that ■opinion has troubled students of probate law. The complaint in that case did not charge “concealment,” but did charge “possession.” For that reason the language of the court is difficult to comprehend.

What were the “other issues” which could not be •determined by the trial court? It appears the son had given notes to the father who later made a gift of the notes to the son who destroyed the notes. In the trial court the administrator of the father’s estate sought to introduce evidence to prove that the father was mentally incompetent to make such a gift. The Supreme Court held such- evidence was inadmissible, and that the ultimate objective was a money judgment and -where the evidence did not show concealment a money judgment could not be rendered. In effect the court held that before the court had jurisdiction to proceed to render a money judgment the defendant must first be found guilty on one of the grounds found in the statute. With that reasoning, we agree. We do not agree if the court intended to hold that the Probate Court, under Section 10506-67, General Code, does not have jurisdiction to proceed to try the right of property, a question which will be discussed later. However, the court did not hold and the language of the court cannot be construed to hold that, if the complaint charges one of the statutory grounds for relief and the proof supports another statutory ground, the complaint may not be amended to conform to the proof.

It is urged that since this proceeding is quasi criminal in character, supported only by proof of the commission of a wrongful or criminal act, an amendment of the complaint should not be permitted in the absence of a statutory provision authorizing it. It has been held that a complaint under this section involves a charge of wrongful or criminal conduct. In re Estate of Blade, supra; however, other authorities have held that the complaint is not necessarily based on a criminal act. Lindquist v. Hayes, Admx., 22 Ohio App., 141; Jones v. Whaley, 25 Ohio Law Abs., 513. In opr judgment the complaint may or may not be based on a wrongful, fraudulent or criminal act, depending on the nature of the charge. Section 10506-67, General Code, supersedes Section 10673, General Code. Perhaps under Section 10673, which provided for filing a complaint alleging that the accused had “concealed, embezzled or conveyed away” assets of the estate, such complaint generally involved a wrongful, fraudulent or criminal act. Whatever may have been the proper interpretation of the statute prior to the effective date of the 1932 Probate Code, it does not follow that the same ruling would be applicable to this statute after it was amended to include a charge that the accused is suspected “of being or having been in the possession of any moneys,” etc. Under that provision the accused may have come into possession of certain assets rightfully, but may wrongfully withhold such assets from the complainant. In such case the wrongful act of which the accused may be found guilty is not the wrongful acquisition of the assets but the act of wrongfully withholding the assets from the complainant. It is true the accused must still be found “guilty” or “not guilty” of the charge, and if found “guilty” the ten per cent penalty must be imposed. The penalty is an extra burden which the accused must bear for his wrongful retention of such assets. While the proceeding may be quasi criminal in character, in our judgment this statute now provides for litigating a matter which does not involve a criminal act, but which carries with it more of the aspect of a civil than a criminal proceeding.

Even though the proceeding is quasi criminal in character, we are of the opinion that the laws governing civil proceedings in the Probate Court are applicable to this proceeding. Section 10501-22, General Code, in part provides:

“The provisions of law governing civil proceedings in the Court of Common Pleas, so far as applicable, shall govern like proceedings in the Probate Court when there is no provision on the subject in .this act.”

There is no statutory provision on the subject in the act. The statute governing proceedings in Common Pleas Courts is Section 11363, General Code, which in part provides:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, * * * when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved.”

Under those sections the Probate Court had authority to amend the complaint to conform to the proof. Upon the state of the record we do not believe it can be contended that the defendant was prejudiced thereby. We do not believe that a different defense would have been made or the evidence introduced by the defendant would have been any different had the complaint in the first instance charged “possession” rather than “concealment.” The defendant was 'given great latitude in presenting her evidence without objection. That right is extended to both the complainant and the defendant. In Hendrickson v. Hendrickson, supra, where the complaint alleged “concealment” of certain moneys and assets, listing a hundred items, the court held that the complainant could introduce evidence showing that the defendant had concealed moneys, etc., other than those listed. The trial court did not commit error in sustaining the motion to amend the complaint after judgment to conform to the proof.

Lastly, it is contended that the evidence did not present an issue cognizable under Section 10506-67, General Code. It is claimed that title was drawn in question and that the Probate Court has no jurisdiction to determine questions of title. Also, it is. contended that the relief sought was a money judgment and that this proceeding cannot be used as a substitute for a civil action. Goodrich v. Anderson, supra, and In re Estate of Black, supra, are cited. We have already analyzed Goodrich v. Anderson and have stated as our opinion that the court held that before the Probate Court could proceed to render a money judgment the charge in the complaint must be proved. In effect the court held that proof of the allegation in the complaint is a necessary prerequisite to the rendition of a money judgment. The court did not hold that a money judgment may not be rendered in a proper case. By inference, at least, the court intimated a money judgment could be rendered in a proper case. The type of judgment to be rendered depends on the nature of the complaint and the evidence adduced. The remedy is provided by statute and a money judgment is expressly provided for in the proper case. We cannot conceive of a clearer case for the application of the statute authorizing a money judgment than the case at bar. Having found the defendant guilty of being or having-been in possession of moneys belonging to the estate of decedent, a judgment for that amount followed as a matter of course under the provisions of Section 10506-73, General Code. The case of In re Estate of Blade, supra, is distinguishable from the instant case on the facts. In that case the ward of the guardian complainant and the defendant had had numerous financial transactions over a period of several years. The factual situation presented required the court to consider a number of items of debits and credits. The court could not have determined their differences except by an accounting. The court held “ resort may not be had to a discovery proceeding to collect a debt, obtain an accounting- or adjudicate rights under a contract.” In' both of those cases the court regarded the action under Section 10506-67, General Code, as a summary proceeding to discover assets. In the case at bar an action for discovery was required as shown by the evidence. The complainant did not mistake his remedy.

We believe the question of title is determined by the factual situation. In the instant case the court held the defendant never had title to certain moneys belonging to the estate of the decedent, although in possession thereof. Such a .case is clearly distinguishable from one where the court in the first instance is required to set aside a transfer or adjudicate rights of the parties under a contract. McMahan v. Jones, 17 Ohio Law Abs., 488.

Prior to the passage of the 1932 Probate Code the court could not entertain jurisdiction of a matter where title was drawn in question. However, under Section 10506-73, General Code, the court is given authority to cite into court “all persons who claim any interest in the assets alleged to have been concealed, embezzled, conveyed or held in possession, and at such hearing shall have authority to hear and determine questions of title relating to such assets.” (Italics ours.) Unquestionably, that provision was intended to and did broaden the po'wers of the. Probate Court in hearings on complaints filed under Section 10506-67, General Code, and especially in view of the provision of Section 10501-53, General Code, which confers on the Probate Court “plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

No longer in a hearing on such complaint may the defendant oust the jurisdiction of the Probate Court by claiming that the property in question was the subject of a gift or that title resides in the defendant. That the court may now determine questions of title is held in the following cases: In re Estate of Black, supra; Smith v. Ross, 29 Ohio Law Abs., 553; In re Guardianship of Sanderson, 64 Ohio App., 177, 28 N. E. (2d), 565. In Smith v. Ross (opinion by Judge Barnes of the Second Appellate District),.the court on page 557 says:

“In the final analysis the question of title is the ultimate question to be determined. Furthermore, under the new Probate Code, courts of probate are given equitable jurisdiction wherever necessary to be invoked in order to grant full relief in any matter properly before the court. ”

In that case the defendant set up a trust agreement and contended that the court did not have jurisdiction under Section 10506-67, General Code, to determine the rights of the parties. In the case of In re Guardianship of Sanderson, supra, a similar factual situation was presented to the Court of Appeals for Summit county. The court in its opinion says:

“Having in mind the various changes made in the Probate Code by the enactment of 1932, we are of the opinion that the various statutes referred to heretofore, now permit an entirely different construction than was possible under the statutes before amendment. It is our opinion that the Legislature intended, in enacting these and allied sections of the Probate Code, to extend the jurisdiction of the Probate Court to matters closely connected with the administration of estates of deceased persons, guardians, and kindred matters, and that, in connection therewith, it was intended that the Probate Court should be given the power to try questions of title to documents evidencing choses in action of the kind involved in this controversy, which power it did not have under decisions rendered prior to the amendment of the statutes. And it would seem that one of the primary purposes in amending the statutes in the adopted language was to accomplish this result. * * %

“The statutes as amended contemplate something more than a summary proceeding; they provide for a trial of the issues as presented by the complaint, in accordance with the law governing trials, except in so far as modified by the express provisions of the Probate Code.”

In a hearing on a complaint under Sections 10506-67 and 10506-73, General Code, the Probate Court is given jurisdiction- to determine questions of title, and if the defendant is found guilty under the complaint, the court has complete authority to render a money judgment. It follows that in the instant case the trial court did not commit error in rendering a money judgment. -

Having found that the trial court erroneously found against the defendant in the sum of $1,400 for money which the defendant contended was given her for the purchase of a new automobile, when the evidence, without any question, shows that $1,300 was involved, the court orders the judgment modified by reducing the amount of the judgment in the amount of $100. Furthermore, the court, having found that the finding of the trial court against the defendant in the sum of $250 for money which the defendant contended was given her for the Florida trip was against the manifest weight of the evidence, the judgment of the trial court will be. reversed and remanded unless the complainant agrees to a reduction of the judgment in the sum of $250, in which event the judgment will be affirmed in the amount of $2,700 together with a ten per cent penalty thereon. The judgment of the trial court is otherwise affirmed.

Judgment accordingly.

Miller and Hornbeck, JJ., concur.-


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Moody, Appellant, v. Vickers, Appellee.

      (No. 3961
    Decided February 19, 1947.)

      Mr. C. M. Addison and Mr. Charles B. Doll, for appellant.

      Messrs. Wiles é Doucher, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, Ohio. The plaintiff, appellant herein, sued for damages for personal injuries suffered when he was struck by an automobile driven by defendant, appellee herein, on February 9, 1945, between 6:30 and 7:00 p. m., at the intersection of Mound street and Riverside drive in the city of Columbus. The jury returned a general verdict for the defendant. A motion for new trial was filed, which was overruled and judgment was éntered.

The plaintiff has filed six assignments of error, óne of which is that the verdict was contrary to law and against the manifest weight of the evidence, and was not sustained by sufficient evidence. The plaintiff in his petition alleged five specifications of negligence, one of which was stricken at the close of the,case. The remaining specifications of negligence charged the defendant with excessive speed, 'with failure to exercise ordinary care to keep a proper lookout, and with operating his automobile against a “red light” or “stop signal. ’ ’

The defendant in his answer denied any negligence on his part, and alleged that the plaintiff, who was a pedestrian, was guilty of negligence which was the sole proximate cause, or contributed to the proximate cause of his injury.

The evidence shows that Mound street runs in an easterly and westerly direction and that Riverside drive runs in a northerly and southerly direction, intersecting at right angles; that the plaintiff attempted to cross from the northeast corner to the southeast corner of the intersection; that he was struck by the defendant’s automobile when he was at a point a few feet west of the eas.t crosswalk of Riverside drive and a few feet north of the middle of Mound street; that the defendant was driving his automobile in a westerly direction on Mound street, straddling the north rail of, the westbound street railway tracks'; that at the intersection there was a “stop” and “go” signal light in operation; that the weather on the night in question was disagreeable; that the night was dark, cold and wet, the streets being slippery; that the plaintiff was struck by the right front fender of the defendant’s automobile; that at the time of the accident the headlights on the defendant’s automobile were burning; and that the plaintiff-wore dark clothes and approached the point where the accident happened from the right of the defendant’s automobile.

The case was thoroughly tried. Evidence was introduced on behalf of both plaintiff and defendant 'in an effort to sustain their charges of negligence. The principal fact in dispute, on which much testimony was offered, was on the question as to whether the plaintiff or the defendant entered the intersection on the green light or “go” signal. The evidence was directly in conflict on that and other issues of negligence. A factual situation was presented for the determination of the jury. There being sufficient evidence to support the verdict, we cannot say that it was against the manifest weight of the evidence; neither was the verdict contrary to law.

It is claimed that the court erred in refusing to sustain the challenge for cause and the peremptory challenge of one of the jurors, and to declare a mistrial. On the second day after the trial began one of the jurors made known to the court that he was acquainted with the defendant, and that the juror and the defendant lived in the same neighborhood. The record does not show that the juror was interrogated on that matter during voir dire examination. When that fact was made known to the court, the court and counsel questioned the juror at length to determine whether he would be biased or prejudiced, or in any way influenced by acquaintanceship with the defendant. That interrogation was brought to a close by the following question and answer:

“The Court: Well, do you think that your.limited acquaintance, as you have stated to us, would possibly affect your deliberations to any extent?

“Juror Ptacek: I don’t think so.’’

The plaintiff attempted to exercise a peremptory challenge, and also challenged the juror for cause. None of the statutory grounds of challenge for cause, as provided in Section 11419-51, General Code, appears. A peremptory challenge and a.challenge for cause at that stage of the case were properly overruled. The matter then became discretionary with the court. It is not claimed that the trial court abused its discretion. The juror being qualified, as shown by the record, the court did not commit error in refusing to declare a mistrial.

It is contended that the court committed error in refusing the application of the plaintiff for continuance of the cause, on the ground of the unavoidable absence of two material witnesses. After the trial began counsel for plaintiff brought to the attention of the court the fact that the physician who attended the plaintiff shortly after the accident was out of the state. A motion was made for continuance. The court requested counsel to proceed under a court rule, which is as follows:

“An application for the continuance of a cause shall be by motion, supported by affidavit, and if the continuance is asked for on the ground of inability to procure the testimony of an absent witness, the party making the application must state in his affidavit what he expects to prove by such witness, and also the acts of diligence by which he has endeavored to procure the testimony of such witness. If the court find the testimony material and that due diligence has been used, such cause may be continued unless the opposite party consents to the reading of such affidavit in evidence, in which case the trial may proceed and such affidavit be read on the trial as the evidence of the absent witness.”

The requisite affidavit was made and counsel for the defendant consented to the reading of such affidavit in evidence. Thereupon the court, in conformity to the rule, overruled the motion for a continuance.

Another witness subpoenaed by the plaintiff was confined to her home because of illness. Her deposition had been taken some time prior to the trial, although not filed. With the court’s permission and by agreement of counsel her deposition was used in the'case. In neither instance did the trial court act erroneously to the prejudice of the plaintiff in refusing to continue the cause.

After an examination of the entire record we do not find that the trial court committed prejudicial error in rejecting evidence offered on behalf of the plaintiff, or in the admission of evidence offered on behalf, of the defendant. The record shows that the trial court was eminently fair, and ruled according to law on the admission and exclusion of evidence.

Plaintiff contends that the trial court erred in sending to the jury exhibits offered on behalf of the defendant, and in refusing to send to the jury exhibits offered on behalf' of the plaintiff. _ During the cross-examination of the plaintiff, defendant’s counsel interrogated him relative to a statement he had given at the hospital sometime after the accident occurred, the statement being taken by a court reporter, and transcribed. During the cross-examination, counsel for the plaintiff requested the statement to be introduced as an exhibit. Accordingly, it was introduced and later in the trial the entire statement was read into the evidence by counsel for the plaintiff. That exhibit was sent to the jury, together with other exhibits. Plaintiff contends that the affidavit made by counsel for plaintiff, in compliance with a court rule, should have been sent to the jury. We cannot agree. It was read into the evidence and accepted as the testimony of the absent witness. It had the same effect as a stipulation. In our judgment, the court would have erred in sending such affidavit to the jury room.

The court refused to send to the jury the deposition of the absent witness, which was introduced by agreement. When the deposition was read the trial court sustained objections to a part of it. True, it is well established, as a general rule in this state, that a deposition introduced into the evidence should be sent to the jury. Stites v. Admr. of McKibben, 2 Ohio St., 588; Greene & Co. v. Davis, 4 C. C., 84, 2 C. D., 433. However, where part of the deposition has been ruled out on the’ ground of incompetency, the court, in the exercise of its discretion, may refuse to send it to the jury. Stites v. Admr. of McKibben, supra; New York, C. & St. L. Rd. Co. v. Biermacher, 110 Ohio St., 173, 143 N. E., 570; National Fire Ins. Co. v. Sayers, 16 Ohio App., 398. In the Sayers case, supra, the court, on page 402, says:

“Since the decision in the case of Stites v. Admr. of McKibben, 2 Ohio St., 588, it has been the practice in the courts of Ohio to send to the jury- room depositions read in evidence, unless the deposition contains incompetent evidence which was ruled out. In such case it is within the discretion of the’ court to refuse to send the deposition to the jury.”

See, also, 39 Ohio Jurisprudence, 597 and 1062.

In our judgment the trial court acted properly in the exercise of its discretion in refusing to send the deposition to the jury room. -

Plaintiff contends that the court committed error in its general charge to the jury. That part of the charge of which the plaintiff complains is as follows:

“I furthermore charge you that if the plaintiff entered the street or intersection at a place otherwise than on the crosswalk, either marked or unmarked — I believe there is no testimony as to whether this crosswalk was marked — but whether marked or unmarked, if you find by a preponderance of all the evidence that the plaintiff entered the intersection at a point other than on a crosswalk, that would be negligence on his part as a matter of law. ’ ’

There was some evidence to support the contention that the plaintiff was not using the crosswalk at the time he was struck. However, the plaintiff contends that it is not negligence, as a matter of law, for a pedestrian to attempt to cross the street at a place other than at a crosswalk. The case of Glasco v. Mendelman, 143 Ohio St., 649, 56 N. E. (2d), 210, is cited to support this contention. In that case the plaintiff attempted to cross a street between intersections and was struck by the defendant’s automobile. The trial resulted in a judgment for the plaintiff, which was reversed by the Court of Appeals upon the ground that the plaintiff was guilty of negligence as a matter of law, and that such negligence was a contributing proximate cause of the accident. The Supreme Court reversed the judgment of the Court of Appeals, not on the ground that it was improper to hold that plaintiff was guilty of negligence per se, but on the ground that the court held such negligence was the proximate cause of the accident. Whether such negligence was a proximate cause was a factual matter to be determined by the jury, unless the evidence was such that reasonable minds could not arrive at different conclusions. While the opinion of that court hinged on the application of the “assured clear distance ahead” statute, nevertheless the court did consider an ordinance of the city of Columbus, which placed a duty upon the pedestrian to “yield the right .of way to vehicles upon the roadway, ’ ’ and which also placed a corresponding duty' upon the driver of a vehicle “to exercise due care for the safety of pedestrians.” In that case it was admitted that plaintiff was guilty of negligence in crossing the street between intersections and that the court has authority to determine the question of proximate cause, as a matter of law, only where the' evidence is such that reasonable minds, can arrive at but one conclusion. In the instant case, no effort was made to introduce an ordinance of the city of Columbus. The court charged fully on the rights and duties of a pedestrian and a driver of a motor vehicle in the use of the highway within a municipality, as provided in the Uniform Traffic Act of the General Code. Counsel for plaintiff cite Section ,6307-46, General Code, which, in part, provides:

“(a) Every pedestrian crossing a roadway within a municipality at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all traffic operating lawfully upon the roadway. * * *

“ (c) Notwithstanding the provisions of this section every operator of a vehicle, street car or trackless trolley shall exercise due care to avoid colliding with any pedestrian upon any roadway.”

The court covered this section in its charge as follows:

“I charge you, members of the jury, that notwithstanding these statutes or condition of the lights that both parties were bound at all times to exercise their faculties of sight and hearing as they entered that intersection. The duty rested upon the defendant as he entered the intersection to exercise ordinary care for the safety of the plaintiff, and likewise the law enjoined upon the plaintiff a duty of exercising o'rdinary care, whatever that might have been under tiie circumstances, for his own safety, as he proceeded across that intersection.”

Counsel for the defendant contend that the factual situation in this case requires the application of Section 6307-48, General Code, which, in part, provides:

“(c) No pedestrian shall cross a roadway within a' municipality at a place other than a crosswalk except in cases where crosswalks are an unreasonable distance apart.”

Under the provisions of such section it is contended that it is unlawful for a pedestrian to cross a roadway within a municipality at a place other than a crosswalk, and that in doing so the pedestrian is guilty of-negligence per se.

In Smith v. Zone Cabs, 135 Ohio St., 415, 21 N. E. (2d), 336, the Supreme Court had before it two ordinances of the city of Warren, one which made it unlawful for pedestrians to cross between intersections in the congested district, and the other which provided as follows:

“Every pedestrian crossing a roadway at any point other than within a marked or unmarked crosswalk shall yield the right of way to vehicles upon the roadway, provided that this provision shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of pedestrians.”

The court followed the case of Schell v. DuBois, Admr., 94 Ohio St., 93, 113 N. E., 664, L. R. A. 1917A, 710, which held that the violation of a city ordinance constituted negligence per se, but was careful to point out that negligence per se and proximate cause are two separate and distinct issues. The court held that negligence per se was presumed as a matter of law, while proximate cause must he proved as a matter of fact. The court held that the ordinance in question gives the motorist the right of way between intersections, but also requires the motorist to exercise ordinary care for the safety of pedestrians, rightfully or wrongfully on the highway between such intersections. We are of the opinion that the trial court in the instant case properly interpreted the sections of the Uniform Traffic Act applicable to the facts in this case, and gave proper instructions to the jury relative to the questions of negligence per se and proximate cause. The question whether the negligence of the plaintiff, if any, was the proximate cause or was a contributing proximate cause was submitted to the jury under proper instructions.

Furthermore, the verdict of the jury was a general verdict. No interrogatories were submitted to the jury. In view of the several charges of negligence by one party against the other, under a general verdict the court is not in a position to conclude on what specification of negligence the jury based its verdict. The pleadings in this case, and the evidence adduced in support thereof, require the application of the “two-issue rule.” Under that rule, even though the court did commit' error in its charge on one specification of negligence, if the verdict of the jury can be sustained on other specifications of negligence, the reviewing-court cannot order a reversal. In 2 Ohio Jurisprudence, 777, the rule is stated as follows .-

‘ ‘ The rule is well settled in Ohio that where the jury returns a general verdict in a case involving two or more issues, a finding upon any one of which in ‘favor of the successful party would entitle him to judgment if the record does not disclose affirmatively by answers to interrogatories or otherwise, upon which issue such verdict was based, the judgment will not be reversed if no error appears as to any one or more of them although there may be error as to other issues.”

See, also, 39 Ohio Jurisprudence, 945.

In Knisely v. Community Traction Co., 125 Ohio St., 131, 180 N. E., 654, the court cited with approval the case of Sites v. Haverstick, 23 Ohio St., 626, which is regarded as a leading case in Ohio on that proposition, and applied the “two-issue rule” in a negligence case wherein the issues presented were similar to those in the instant case.

In Kihlken, Admr., v. Barber, 129 Ohio St., 485, 196 N. E., 164, a case involving negligence and contributory negligence, where the jury rendered a general verdict, the court applied the “two-issue rule.” The court, on page 486, says:

“The verdict was a general one and was for the defendant, and it was not disclosed by answers to interrogatories or otherwise upon which issue the finding was based. The jury may have reached its conclusion upon the ground that the defendant was not negligent or upon the ground that, under the instructions given, the defendant was relieved from liability because of the contributory negligence of the plaintiff.”

In applying the “two-issue rule” to the facts in this case this court would be without authority to order a reversal even if it found that the instruction complained of was. erroneous, which we do not find.

We are of the opinion that the plaintiff had a fair trial; that on the evidence adduced reasonable minds could have arrived at different conclusions, the evidence being directly in conflict. We are of the opinion that the verdict of the jury was sustained by sufficient evidence and was not contrary to law, and that no error appears in the record prejudicial to the rights of the plaintiff.

The judgment will be affirmed.

Judgment affirmed.

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


author: Montgomery, J.

text:
    McClanahan et al., Appellants, v. McClanahan et al., Appellees.
    (No. 3731
    Decided July 1, 1946.)

      Mr. William A. Slater, for appellants.

      Messrs. Gothvald, Hershey & Hatch, for appellees.
   Montgomery, J.

The appeal to this court is on questions of law and fact, and is submitted upon a transcript of the evidence taken in the Common Pleas Court and a little additional evidence taken in this court.

The essential relief sought by plaintiffs, appellants herein, is an accounting. The defense is essentially twofold. First, it is claimed that there is no proof of a contract between the parties sufficient to justify the granting of any relief; and, second, that the purpose of the principal plaintiff, Earl McClanahan, in entering into whatever arrangement was made, was to hinder, delay and defraud his creditors, and, not coming into court with clean hands, he cannot ask for any relief.

The record shows a maze of contradictions and also of irrelevancies. The two principals are brothers. The conduct of neither of them would measure up to any high test of business integrity, and the testimony of neither of them justifies any claim of complete reliability.

The inconsistencies in the pleadings of plaintiffs and many of the inconsistencies in the testimony of each of the brothers may be disregarded, however, in view of our conclusions as to the ultimate facts and the law applicable thereto. Those conclusions seem to us to be inescapable, and a recital of all the claims and of the details of the various maneuvers would answer no useful purpose. As to the facts, we limit ourselves to a statement of what we regard as basic and decisive.

The plaintiff Earl McClanahan had started a small jewelry store and watch repair shop in Akron. By 1934 he had assets which he claims were worth approximately $4,000, but he could not meet the claims of creditors against him, and for practical purposes was insolvent. He induced James McClanahan, also insolvent, to come from West Virginia to Akron and to join him in the business.

After a short time they agreed upon the formation of a corporation, and we find, as the Common Pleas Court found, “that there was an agreement to divide the stock fifty-fifty.” Two hundred and fifty shares were authorized. One hundred shares were issued promptly to James or as he directed. Later, another fifty shares were similarly issued. None was ever issued to or for Earl. His shares were not to be issued until he should settle with his creditors.

Some years later Earl did settle with his creditors for approximately ten per cent of the claims, and in making some of these settlements he made false statements as to his financial ability, and in at least one instance made a false statement under oath.

In the meantime, the business had become valuable, and when James, by virtue of the stock he held and his claim to sole ownership, excluded Earl from participation in the business, it was worth $40,000. The chief producer of the assets was a contract procured by Earl from the General-Electric Company for the sale of its products.

In other words, Earl had the business. He is entitled to chief credit for making the business profitable. He brought his then impecunious brother into the business. That brother made the contribution expected of him, but the latter now seeks to exclude from participation in the business or its profits the man chiefly responsible for both.

The reason for such attempted exclusion, other than , the indefiniteness of the contract, which we have hereinbefore resolved, is that Earl, in entering into the arrangement, did so for the purpose of defrauding his creditors in whole or in part.

Is such a defense available to the brother making the claim? As we see it, that is the question for us to decide, in view of our stated conclusions as to the facts.

Early in our consideration of the case, the thought came to us that for James to succeed on such a claim would be a gross example of unjust enrichment. What is “unjust enrichment?”

43 Words and Phrases, 272, suggests three definitions, the substance of which is that one is unjustly enriched if the retention of the benefit would be unjust ; that one should not be allowed to profit or enrich himself inequitably at another’s expense; and that there may be a recovery where the receipt by one person from another of a benefit and the retention of that benefit would be unjust.

An interesting suggestion concerning this doctrine appears in 66 Corpus Juris, 32, wherein it is described as a phrase much used to designate a principle which lies at the foundation of tlqe great bulk of quasi-contracts — that one shall not unjustly enrich himself at the expense of another.

We come now to the questions whether the so-called “clean hands” doctrine is applicable in the instant case and whether, where one has a fault attached to him in a transaction, he can still claim relief against an unjust claim'asserted by another.

In the course of the opinion in the case of Pride v. Andrew, 51 Ohio St., 405, 414, 38 N. E., 84, where the court discussed the proposition that neither party to a fraudulent conveyance can be aided in a court of justice, there is added this interesting proposition:

“There are cases, however, seemingly at variance with this rule, in which aid was extended to grantors who were in delicto, but not .in pari delicto with the grantees. But these cases are exceptions to the well-defined' and almost universal rule, and rest upon facts not existing in the case before us. Where there are different degrees of guilt as between the parties to the fraudulent or illegal transaction, it was said in Roman v. Mali, 42 Md., 513, that as an exception to the general rule, if one party act under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the court in such case will relieve.”

In 30 Corpus Juris Secundum, Equity, Section 93, referring to this proposition, this statement is made:

“It means that equity refuses to lend its aid in any manner to one seeking its active interposition, who has been guilty of unlawful or inequitable conduct in the matter with relation to which he seeks relief.”

In the instant case, the inequitable conduct of the plaintiff Earl McClanahan had nothing to do with his connection with the defendant James McClanahan, or with the claim which the.former makes against the latter. And under the subject of Equity in 19 American Jurisprudence, Section 473, we find this statement :

“The applicability of the maxim, ‘he who comes into equity must come with clean hands,’ depends upon the connection between the complainant ’s iniquitous acts and the defendant’s conduct which the complainant relies upon as establishing his cause • of action. Relief is not to be denied because of general iniquitous ■conduct on the part of the complainant or because of the latter’s wrongdoing in the course of a transaction between him and a third person.”

And in Section 474, Id., we find this:

“If the alleged wrongful conduct of the complainant appears not to have injured, damaged, or prejudiced the defendant, the maxim may not be successfully invoked.”

In 4 Pomeroy’s Equity Jurisprudence (5 Ed.), Section 1047, in a discussion of constructive trusts, this statement appears:

“By the well-settled doctrines of equity, a constructive trust arises whenever one party has obtained money which does not equitably belong to him, and which he cannot in good conscience retain or withhold from another who is beneficially entitled to it * *

And the Ohio rule, as stated in 27 Ohio Jurisprudence, Money Received, Section 2, is:

“Where one receives money that in equity and good conscience belongs to another, the latter may recover it as money received to his use. In other words, ‘the action lies in every instance where one has come into possession of money which should in good conscience be .refunded to another. ’ ’ ’

Of course, law digests do not constitute the best authority for any proposition, but we have cheeked all the references hereinbefore made and they are justifled by virtue of tbeir annotations, and there are numerous decided cases referred to in the various dig'ests, which sustain all that has been quoted herein.

We direct attention in particular to one case—that of Langley v. Devlin, 95 Wash., 171, 163 P., 395— and to the last paragraph of the syllabus therein, which is:

“In an action to recover an interest in corporate stock, secretly retained by defendants out of the purchase price on the sale of plaintiff’s stock, it is no defense that the plaintiffs and defendants did not deal fairly with third parties who were interested in the sale and that plaintiffs did not make all persons interested in the subject matter parties to the suit; since the principle that he who comes into equity must come with clean hands does not apply to defeat the enforcement of a contract because a third party was defrauded, where the defendants first invited the fraud, the third party is not complaining but made common cause with the plaintiff, and there is no evil in the subject matter of the contract.”

Finally, it is our conclusion, and we must state, that James McClanahan, being in no sense connected with the people whom he claims were defrauded or with the alleged attempt to defraud them, and having profited as hereinbefore stated, is in no position to invoke the doctrine which he claims as an aid to him in retaining this property. And in this conclusion, no injustice is done him.

It follows that there may be a decree for the plaintiffs, granting their right to an accounting from the defendants, and counsel for the plaintiffs may draw an entry accordingly.

Decree accordingly.

Doyle, P. J., and Stevens, J., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Ninth Appellate District.


text:
    The State of Ohio, Appellee, v. Lowder, Appellant. The State of Ohio, Appellee, v. Haley, Appellant. The State of Ohio, Appellee, v. Parks, Appellant.
    (Nos. 2232, 2233 and 2234
    Decided October 9, 1946.)

      Mr. D. Deane McLaiighlin,'prosecuting attorney, Mr. W. Bernard Rodgers and Mr. John Rossetti, for appellee.

      Mr. W. M. Howard and Mr. C. E. Hunter, for appellants Willie Lowder and Alfred Parks.

      Messrs. Amerman, Mills, Mills, Jones & Mansfield, for appellant John Harvey Haley.
   Montgomery, J.

The three appellants were, by separate indictments, charged with the killing of one William Koram, while attempting to perpetrate á robbery, under the provisions of Section 12400, General Code. Lowder and Haley were tried before juries. 'Parks, waiving that right, ,was tried before three judges. Each of the accused was convicted of murder in the first degree, with recommendation of mercy, and sentenced accordingly. ' From the several judgments, these three appeals were perfected.

Not the least of our tasks has been the reading of the three records, two of which were voluminous. They have been read, and read with care, because of the necessity of having in our minds the facts proven in each case, and the danger of confusion lest an essential matter appear in one case, and perhaps not in another.

Except for the nature of the cases and their importance, we might well content ourselves with, and adopt as our own, the opinion rendered by Judge Barthelmeh in the Parks case, and the opinion of Judge Sweitzer in overruling the .motions for new trials in. the three cases.

There are numerous assignments of error in each case. While in the sevéral cases they vary in form and in language, they are in substance essentially the same, and may be considered and discussed together, and all have been considered. Some of them have no merit in them, and some but repeat in different form the basic matters of which complaint is made.

Especially in the Plaley case, and to a lesser extent in the other cases, much is made of the complaint of misconduct on the part of counsel representing the prosecution. Some of the criticized statements of counsel were provoked or produced by preceding statements of counsel for defense. But in none of the proffered charges against counsel do we-find anything prejudicial, or in fact anything deserving criticism.

If the corpus delicti was proven in each case, and if the several confessions were admitted in evidence properly, the verdicts in the two cases, and the finding in the third case, were not manifestly against the weight of the evidence.

And assuming for the moment that we should hold for the state on these two propositions, there was nothing erroneous in the charges given to the jury in the two cases. There is no requirement that the trial judge shall give special requests to the jury in a criminal case. In these cases, in view of the evidence, he properly declined to charge on other offenses.

See Malone v. State, 130 Ohio St., 443, 200 N. E., 473.

We have, therefore, in each of these cases, essentially two questions to consider:

1. Was there in each of them, independent of the admitted confession, adequate proof of the crime, of the corpus cleliciil

2. Were the confessions, obtained as they were, admissible in evidence?

The defendants Lowder and Haley in their several trials testified in their own behalf. The defendant Parks testified only as to the -circumstances surrounding his confession. But police officers testified as to his verbal admissions. We endeavor to indicate in each case anything that may be lacking in the chain of evidence. To a considerable extent the proof of the corpus delicti is circumstantial. But, as has been aptly stated, “circumstances do not lie.”

Here is the chain: These three minor boys together on the eve of the crime discussed the possibility of easy money, and what could be done with a gun. They went to the home of Haley who produced the gun. It was. loaded and had a safety device.

These boys roamed about the streets of Canton until nearly midnight, when coming before the business place of Koram, they concluded on trying it as the place for their operations. During their peregrinations, the gun was transferred from Haley to one of the other appellants. And here is a strange divergence in statements. While there is a similarity in other respects in the confessions and in the oral evidence at the trials of the defendants Lowder and Parks, each places the gun in the possession of the other at the time of the shooting.

Lowder and Parks entered the Koram room. Haley remained on the outside as a “look-out.” He did not know and could not know what happened in the room. He heard a shot and ran, later meeting the other two boys.

The t\Vo entered the room, announced to Koram, who was then alone, that it was a ‘ ‘ stick-up. ’ He, not yielding, started toward them.- He was shot. The bullet traveled in an apparently straight line and entered into the apex of the heart. Blood spots were found four or five feet back from the doors from which the accused fled.

The bullet was later taken from the body of Koram. The cartridge shell was found in the storeroom near the door. After various false statements as to the whereabouts of the gun, it was found ultimately where the accused Parks stated it would be found. It was buried in a brickyard, in a canvas bag, which bag he told the officers had been stolen in a previous burglary of The Pelber Biscuit Company, perpetrated by these same three appellants.

The connection is complete. There is no fatal break in the chain of circumstances. And in each case the ballistic expert, the P. B. I. man in Washington, to whom went the gun, the shell, and the bullet, was clear in his conclusions. We see no occasion for questioning them. He said this “bullet was fired from this gun.”

We find no difficulty in holding adequate the proof of the “body of the crime.”

As to the contention that, at the time of the killing, the intention to rob had been abandoned, and that if any offense were committed, it was a lesser one, we suggest that the case of Conrad v. State, 75 Ohio St., 52, 78 N. E., 957, 6 L. R. A. (N. S.), 1154, still is applicable.

Coming now to the confessions: In the Lowder and Haley cases it is claimed they were obtained by duress, and -in the Parks ease by promises. In his case he admits no force was used. Prom a study of these records we are unable to uphold either contention. In the Lowder and Haley cases, this question of the voluntary nature of the confessions was submitted to the jury, which in each case found against the accused. We are in accord with these findings.

It is urged that these confessions were not admissible in the trials in the Common Pleas Court because previously they had been used in the Juvenile Court to which these three minors had first been taken. Section 1639-30, General Code, which is a portion of the “Juvenile Court Code,” provides in part:

“The disposition of a child under the judgment rendered or any evidence given in the court shall not be admissible as evidence against the child in any other ■case or proceeding in any other court * * *.”

But here there was no judgment other than the referral after hearing the evidence, and realizing the nature of the crime charged, to the Court of Common Pleas, as was the only possible course. That did not make of it “any other case or proceeding in any other court.” It was the, same case, the same proceeding, transferred to the proper court.

Finally, we come to the contention that these confessions were inadmissible, because the accused minors were not taken “immediately” before the Juvenile Court as directed by Section 1639-27, General Code, and because these confessions were obtained before defendants were taken before the court.

This contention is the most serious one presented to us and has given us much concern. The perplexity is due to recent decisions of the Supreme Court of the United States, which decisions were discussed at length in briefs and arguments of counsel. They are confusing, because of the conflicting positions taken by various justices, because of the varying concurrences and dissents, but the fact remains that so far as the decisions are in point, they deal with federal and not state statutes.

We are content to follow the reasoning and the conclusion of the Second Appellate District of Ohio as pronounced in the case of State v. Collett, unofficially reported in 44 Ohio Law Abs., 225, 58 N. E. (2d), 417, and this is so in spite of'the difference in wording of the statutes involved in that case and ours.

In the case of Sharkey v. State, 4 C. C., 101, 2 C. D., 443, decided in 1888, with Judge Shauck, then on the circuit bench, rendering the opinion, it was held that a confession, voluntarily made, although before a warrant had been issued for the arrest of the accused, was admissible in evidence.

See the case of People v. Alex, 265 N. Y., 192, 192 N. E., 289, 94 A. L. B., 1033, and the annotations following it. The first branch of the headnotes in that case (as set forth in 94 A. L. R., 1033) is:

“Illegal delay in arraignment after arrest, for the purpose of obtaining a .confession, does not of itself render the confession inadmissible.”

This certainly is sound. One restrained of his liberty has a right to strict compliance with the laws under which he is detained, but if he voluntarily makes a confession before such compliance is had, we fail to see how he is prejudiced by his own confession.

In the instant cases the guilt of these several appellants is so apparent, the care taken by the trial courts to protect them is so outstanding, the technical errors should be disregarded, and there are no prejudicial errors. Justice was done and the judgments of conviction are affirmed.

Judgments affirmed.

Sherick, P. J., and Putnam, J., concur.


author: Hornbeck, P. J.

text:
    The Hillsboro Live Stock Sales Co.; Cornwell et al., Appellants, v. The Springfield Live Stock Sales Co.; Muskingum Live Stock Sales Co. et al., Appellees.
    (No. 461
    Decided May 13, 1946.)

      Mr. John C. Durfey, Mr.'Gollis Gundy Lane, Messrs. Zinn & Allen, Mr. Don Turhball, Mr. George W. Vorys and Mr. Eugene L. Eensel, for the motion.

      Messrs. Glaypool & Jones, Mr. Lemuel B. Weldon, Mr. Lawrence D. Stanley and Mr. George T. Tarbutton, contra.
   Hornbeck, P. J.

This cause is submitted on motion of appellees, Muskingum Live Stock Sales Company, Fred M. Lewis as receiver of The Fairfield County Sales Company, John M. Ety as receiver of The Hocking Valley Live Stock Sales Company, Pickaway Live ■ Stock Co-operative Association, Inc., and George C. Collins, receiver herein, to dismiss the appeal on questions of law and fact for the following reasons:

1. The order appealed from arises out of an action at law.

2. The order appealed from does not constitute the final order in a chancery case.

3. Other reasons which more fully appear in the memorandum submitted in support hereof.

The grounds supporting the motion are fully covered by the first and second reasons therefor. The order and judgment to which the appeal is directed was entered on issue drawn on the intervening petition of the Muskingum Live Stock Sales Company, Lewis as receiver of The Fairfield County Sales Company and Ety as receiver of The Hocking Valley Live Stock Sales Company against the Chillicothe Clearing Agency, a partnership, and 11 members thereof, also named as defendants. George C. Collins, theretofore named receiver upon the petition of plaintiff, adopted the averments of the intervening petition and joined in its prayer as did Pickaway Live Stock Co-operative Association, Inc.

The answers of the defendants were substantially general denials, to which replies were filed. On issue joined, the trial judge, jury having been waived, found generally for the intervening petitioners against defendant Chillicothe Clearing Agency and seven of its partners and found that they were jointly and individually liable for the obligations set out in the respective intervening petitions; “that the seven named defendants as controlling stockholders, directors and officers caused the corporate entities known as the Springfield Live Stock Sales Co., Hocking Valley Live Stock Sales Co. and the Scioto Live Stock Sales Co. to abandon their corporate entities; that said corporations ceased to function as such; * * * that all the assets, interests and business of each of the corporate entities were taken over and appropriated by the defendants”; that an accounting by reference should be made; and that the receiver should have judgment against the seven defendants for the amount found due upon accounting.

The first ground of the motion is that the order appealed from arises out of an action at law. To support this claim it is urged that the ultimate relief sought is a money judgment on behalf of the intervening petitioners, and that all other relief is merely ancillary thereto. Several cases are cited in support of the proposition, which we will not discuss at length because we believe the first branch of the motion may be determined upon some of the salient averments of the intervening petition of the Muskingum Live Stock Sales Company and parties associated as plaintiffs, which petition was adopted by other intervenors.

It is basic that a party having elected to proceed on a certain theory of the law may not, after having received the benefit thereof, abandon that theory. In our opinion, it is manifest that the intervening petitioners elected to' proceed for their relief on the equity side of the court. A few observations from the averments of the petition are sufficient, we believe,. to establish this conclusion.

The eleventh paragraph of the amended petition of the Muskingum Live. Stock Sales Company is to the effect that the defendants Chillicothe Clearing Agency and the partners thereof have withdrawn assets from the Springfield Live Stock Sales Company and others of the sales companies incorporated by the defendants, have intermingled the funds and assets of such corporations, applying the funds of one to the uses of the other indiscriminately, and have thereafter sought to have appointed for each of such corporations a receiver to take charge of and administer the assets of the corporation, all as a part of a design, conspiracy or plan to shield Chillicothe Clearing Agency and the individual partners thereof from the claims of the creditors of the corporations, thereby perpetrating a fraud upon the creditors of the Springfield Live Stock Sales Company, upon the intervening petitioners and upon the court.

The twelfth paragraph, in effect, asserts that the intervening petitioners are entitled to an accounting from the clearing agency and the partners thereof with respect to the business of the partnership and the dealings or joint ventures of any group of the partners connected with the business of the partnership.

The thirteenth paragraph sets out that the clearing agency has no assets or property upon which levy of execution can be made for the satisfaction of interveno rs’ claims; that such defendant has transferred, assigned, dissipated or otherwise disposed of a large part of its property and assets and, therefore, the intervening petitioners are unable to have their claims satisfied; that any attempt of any one of the intervening petitioners to enforce its claim as a creditor of such defendant “would precipitate similar action on the part of all other creditors and thus result in a multiplicity of suits and wasteful strife and controversy” ; that the defendant is insolvent; “that the intervening petitioners have no adequate remedy at law” (emphasis ours); and that the property and assets of the defendant can he made available for the payment of obligations of the defendant and the equal distribution of the proceeds thereof in payment of such obligations, only by the appointment of a receiver.

The prayer of the petition is that an accounting be had from the clearing agency and the named defendants; that a receiver be appointed or the existing receivership of the Springfield Live Stock Sales Company be extended to take charge of the defendant Chillicothe Clearing Agency; that the individual partners, defendants herein, of the Chillicothe Clearing Agency and each of them be restrained as therein-above requested; and that such other and further relief in the premises be had as is just, equitable or proper.

The relief granted responded in all material particulars to the prayer of the petition and the theory thereof.

It is stated in two of the briefs that there was a stipulation in the Common Pleas Court, but it is not found among the files and we do not know the exact language thereof-. We assume, however, that the briefs correctly state the' subject matter of the stipulation; that it was agreed that the court should determine whether the named defendants constituted a partnership and whether the named defendants became liable by their acts and conduct to certain creditors, including the intervening petitioners; and that the matter of accounting and other relief was to be postponed pending the determination of those questions. However limited the factual matters are for consideration, they were determined and applied in their relation to the relief sought. A suit for specific performance and an action for breach of contract may up to a certain point develop the same facts but in the former they are given application to a remedy which is clearly equitable in character and in the latter to an action at law. The stipulation, in view of the pleadings and the judgment entered, is not controlling of the question presented.

The partnership aspect of this case also lends much support to the claim that the relief sought is essentially equitable. It is true that this is not a suit between partners to wind up the partnership, but the status of the defendants has by the judgment been defined as a partnership with the respective obligations of the partners fixed, and some have been held to liability and others relieved therefrom. The central purpose of the intervening petition is to invoke and the effect of the judgment responsive thereto is to apply the cardinal principle that equity will look through the form to the substance of a transaction and will not permit the rights of the parties to be sacrificed to the mere letter of the transaction.

Without attempting further to elucidate the equitable principles invoked upon the facts pleaded in the intervening petition, we deem it sufficient to say that the petitioners employed all the phraseology incident to the proper statement of an equitable suit and set forth subject matter which made it manifest that they did not have an adequate remedy at law, as stated, and were calling upon the court of chancery for the relief sought.

The Supreme Court cases upon which counsel rely, namely, Wall v. Dayton Federation Co., 121 Ohio St., 334, 168 N. E., 847 and Borton v. Earhart, 144 Ohio St., 334, 59 N. E. (2d), 37, have many distinguishing features from the instant suit but the decisive difference is that in both of them, as expressly emphasized by the writers of the opinions, the petitioners sought and prayed for money judgments which the court held in' all instances to be the paramount relief sought. In the instant case there is no express prayer in any of the petitions for a money judgment.

It is claimed in support of the second ground for the motion that there is no final decree in a chancery case. It may be said of the final entry here, as was said by the court in regard to the entry in State, ex rel. K-W Ignition Co., v. Meals et al., Judges, 93 Ohio St., 391, 113 N. E., 258, that “the allegations of the petition are found to be true and that plaintiff is entitled to the relief prayed for; an injunction is granted, an accounting is ordered and a referee appointed to determine the amount due. The general equities of the case were found in favor of the plaintiff, and while the further order of the court was necessary to carry into effect the right settled by the order, it was merely auxiliary to or in execution of the order of the court made on the merits of the case * * *."

In Forrest City Investment Co. v. Haas, 110 Ohio St., 188, 143 N. E., 519, and the cases cited from this court, namely, Colby v. Price, 39 Ohio App., 198, 177 N. E., 382; Springfield Purity Dairy Co. v. Crabill, 18 Ohio Law Abs., 226; and Hudson v. Hoster, 37 Ohio Law Abs., 240, 46 N. E. (2d), 423, it clearly appeared that the orders appealed from did not completely determine the material issues joined between the parties and therefore were not determinations of the whole case.

The motion to dismiss the appeal on questions of . law and fact will be overruled.

Motion overruled:

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


author: Sherick, P. J.

text:
    Zeigler Milling Co., Appellee, v. Denman et al., Appellants.
    (No. 424
    Decided November 19, 1946.)

      Mr. Fred O. Snyder, for appellee.

      Mr. T. B. Mateer, for appellants.
   Sherick, P. J.

This appeal presents two questions. The first question' concerns the admissibility in evidence of a check stub offered as corroborative evidence of the issuance and delivery of a check given to plaintiff’s agent in payment of ah account which is the basis of this action. The check stub was denied admission. Of this ruling defendant, appellant herein, complains.

It is agreed that the early law of Ohio denied' admissibility under the rule that self-serving declarations are not permissible in evidence. Defendant, however, urges that such a business record is now competent under Section 12102-23, General Code, which reads as follows:

"A record of an act, condition or event, shall, insofar 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.”

C. E. Denman, the managing partner, testified that the check stub was filled out at the time the check was drawn and delivered to plaintiff’s agent; that it was done in the usual course of business; and that it was the firm’s usual practice. The stub reads that the check was drawn to the order of plaintiff. Plaintiff’s agent denied that such a check was delivered to him. The check and the invoice covering the account sued upon have been lost. A check of the-same amount was cashed two days later at defendant’s depositor bank. The bank did not have photostatic equipment. It can state only that a check for that amount was duly drawn and cashed; that it did not clear through another bank; and that it is now unable to state to whom it was made payable or who cashed it. Plaintiff produced evidence that it never received the check; that its agent had authority to accept the check; and that it has never received payment of its account.

It is, of course, the rule that issuance and delivery of a check is a step toward payment. Payment, however, does not take place until the creditor or his duly authorized agent receives. and cashes it. When a debtor pleads- payment, the burden is upon him to prove payment. The check stub could be only corroborative proof of the check’s issuance and delivery to plaintiff’s agent. It could not be direct proof of payment, but supports an inference that plaintiff’s agent did receive it. This the agent denies and the bank is unable to identify the agent as the one who cashed it. So the issue stands unbalanced.

The inference is that the agent was dishonest. However, there exists a second inference of equal weight, that is, the defendant made the check to the order of self and cashed it. When a state of facts discloses a situation from which two reasonable but irreconcilable inferences may be drawn, neither shall be indulged.

True the statute noted broadens the field of proof of business transactions, but it is observed that incorporated therein are these words, “and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission,” which words clearly signify that the court is granted a discretion in such a case. Ijfc is not claimed that the court abused its discretion but that it erred in excluding the check stub from the evidence. In view of the fact that the stub tends to support proof of issuance and delivery only, and not payment; that it is a self-serving declaration; that two irreconcilable, reasonable inferences are deductible from the facts; and that proof of payment otherwise stands in equipoise and is not proven by a preponderance of the evidence, we cannot determine that the court abused its discretion or committed error in excluding the check stub from the evidence. Had the defendant carefully preserved the check or its receipted invoice, the controversy could hardly have arisen.

The Court of Appeals of the Second Appellate District, in the unofficially reported case of Eikenberry v. McFall, 33 Ohio Law Abs., 525, 529, 36 N. E. (2d), 27, we believe correctly concluded that:

“The entire purpose of the enactment of Section 12102-23, and kindred sections, was the elimination of the nuisance rule which frequently required a parade’ of innumerable witnesses to properly identify records where entries were made by different persons. The enactment of the above quoted section obviates a calling of so many witnesses and permits the introduction in evidence of the records, where relevant, through the identifying testimony of the person under whose supervision such records were made.”

It, is the further judgment of this court that the Legislature in the enactment of Section 12102-23, General Code, did not intend thereby to make relevant or competent that which was not responsive to the issue made, or to make competent in evidence that which theretofore had been repeatedly held to be incompetent for various unassailable reasons; but did intend to expedite proof of records which were competent and relevant records of business transactions, “made in-the regular course of business, at or near the time of the act, condition or event.”

In Dickson v. Gastl, 64 Ohio App., 346, 28 N. E. (2d), 688, is tc^be found a like-understanding of the section’s purpose. It was therein held that a self-serving declaration contained in a hospital record was “not admissible in evidence, either at common law or under the provisions of Section 12102-23, General Code.”

The second question goes to the weight of the evidenee. The court has already answered that question in part. A jury had been waived. The court, therefore, sat as both judge and jury. It was the -sole judge of the credibility of the witnesses. This court cannot substitute its judgment for that of the trial court. Had the trial court’s judgment been otherwise, even in view of any direct positive evidence of payment, this court would have hesitated in disturbing that judgment, as the whole controversy resolved itself into whether C. E. Denman or plaintiff’s agent spoke the truth.

The judgment must be and is affirmed.

Judgment affirmed.

Putnam, J., concurs.

Montgomery, J., dissents.