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

      (No. 4190
    Decided October 4, 1948.)

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. T. Vincent Martin and Mr. Edmund B. Paxton, for appellee.

      Mr. William L. Maugan, Mr. Arthur W. Wiles and Mr. Edivard F. Lynch, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county on the verdict of a jury finding the defendant guilty of manslaughter in the second degree.

The defendant was indicted on six counts. In the first •count it was charged that the defendant “while operating a motor vehicle without due regard for the safety and rights of others and so as to endanger the life, limb or property of other persons in the lawful use of the streets and highways, did unlawfully and unintentionally kill one Lillian Held,” etc.

In the second count it was charged that the defendant “while operating a motor vehicle upon the streets and highways at a speed greater than is reasonable and proper, having due regard to the traffic, surface, and width of the streets and highways, and other conditions then existent, and while operating a motor vehicle upon the streets and highways at a speed greater than would permit him, the said Glenn W. Cheatwood, to bring his motor vehicle to a stop within the assured clear distance ahead, did unlawfully and unintentionally kill one Lillian Held,” etc.

In the third and fourth counts, defendant was charged with the killing of Pearl Clutter and, in the fifth and sixth counts, with the killing of Lenore Held.

The third and fifth counts charged the same offense as was charged in the first count. The fourth and sixth counts charged the same offense as was charged in the second count.

The jury found the defendant guilty as charged in the second, fourth and sixth counts and not guilty as ■charged in the first, third and fifth counts.

The deaths of the three persons occurred when the automobile which the defendant was driving and in which the three deceased persons were riding collided with the abutment of a bridge on the Groveport pike in Franklin county, Ohio, at about midnight on November 7,1947.

The defendant was charged with manslaughter in the second degree, under Section 6307-18, General Code. In the first, third and fifth counts the defendant was charged with a traffic violation, under the provisions of Section 6307-20, General Code, and in the second, fourth and sixth counts, on which he was found guilty, the defendant was charged with a traffic violation, under the provisions of Section 6307-21, General Code.

We find no misjoinder of counts in the indictment;, neither was the defendant put in double jeopardy as claimed. It is contended that if the counts were properly joined the court erred in sentencing the defendant on three counts of manslaughter in the second' degree. The defendant was found guilty of killing three persons, one in the second count, another in the-fourth count and still another in the sixth count. Three-persons were killed and the defendant committed an unlawful act which resulted in the death of those three persons. The court acted properly in sentencing-the defendant on each count, the sentences to run concurrently.

The defendant contends the court erred in not permitting the defendant to introduce evidence that the-acts of the defendant were not the proximate cause-of the deaths of the decedents. The defendant called a traffic engineer as a witness who offered testimony which in substance tended to prove that a driver of a motor vehicle in approaching the bridge met with a traffic hazard due to a sharp curve in the highway and the narrowness of the bridge; that the curve could not be taken at a rate of speed of 50 miles per hour; that the highway at that point could be safely traveled at a rate of speed of 30 miles per hour; and that an automobile traveling at 45 to 50 miles per hour under certain conditions could not be brought to a stop under 363 feet. This testimony was offered and objection to its admission being sustained, proffer was made. The defendant sought to introduce this evidence to show a defect in the highway and that because of such traffic hazard the act of the defendant was not the proximate cause of the deaths of the decedents. Assuming there was a defect in the highway which created a traffic hazard, such defect or hazard was a condition of the highway which must be observed and would require every motorist to operate his motor vehicle accordingly. Section 6307-21, General Code, in part provides that “no person shall operate a motor vehicle * * * in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing.” Every motorist uses the highways as constructed and with whatever defects exist, subject to the perils which may arise. The fact that a traffic hazard exists does not furnish legal justification to a motorist to travel at a speed which is not “reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing.” This evidence was inadmissible on this issue. If admitted the probative effect of such evidence would have been to show the defendant did not operate his automobile with ordinary care and did not observe the traffic laws of the state. The exclusion of such evidence was not prejudicial to the defendant.

The defendant assigns as error that the verdict of the jury is contrary to law and was not sustained by any evidence. The court charged the jury on the “assured-clear-distance-ahead” rule. The contention is made that the “assured-clear-distance-ahead” provision of Section 6307-21, General Code, had no application.

Section 6307-21, General Code, in part, provides:

“* * * and no person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.”

The defendant contends that there was no obstruction in the highway with which the defendant collided; that the abutment of the bridge with which the defendant collided was not in his lane' of travel and, therefore, the “assured-clear-distance-ahead” provision had no application under the definition given to that expression by our Supreme Court in the second paragraph of the syllabus in Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, which held:

“2. To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing Ms path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.” (Emphasis ours.)

However, the court in that case, on page 83, said:

“In.the later cases of Gumley, Admr., v. Cowman, 129 Ohio St., 36, 193 N. E., 627, decided in 1934, and Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. (2d), 427, decided in 1936, wherein the drivers of automobiles in the nighttime had crashed into motor vehicles on the highway ahead of them, this court held that each automobile driver had violated the statute in operating his automobile at a speed greater than would permit him to bring it to a stop within the distance at which he could see a discernible object obstructing his path. This court in those cases also held that the assured-clear-distance-ahead provision of the statute is a specific requirement of law, a violation of which constitutes negligence per se. The ‘assured clear distance ahead,’ as used in the statute, must be the distance or space between the motor vehicle of the motorist and any discernible obstruction or any limit of vision ahead of him on the highway. For example, if a train of cars is standing across the highway immediately ahead of the motorist, the distance between himself and the train of cars is the assured clear distance ahead. If his view is cut off by darkness, by a curve in the highway, or by the crest of a hill, the distance between him and the point where his vision ends or is cut off is the assured clear distance ahead. The requirement of the statute is that the motor vehicle be so operated that, at any instant, it can be stopped within such assured clear distance ahead.” (Emphasis ours.)

In the discussion of that question it is evident that the Supreme Court announced a principle broader in scope than that stated in the syllabus.

In O’Mara v. Goodsite, 16 Ohio Law Abs., 139, it was held that the rule would not apply “in an action for injuries sustained- when an automobile in which the plaintiff was riding- collided with a girder of a bridge not in, or'a part of, the traveled part of the bridge, but adjacent thereto, adjoining the sidewalk on the bridge.” In the statement of the facts in that case, which is very meager, there is no mention of a curve in the highway or of any obstruction to the view of the motorist and, hence, that case is distinguishable on the facts.

We are not disposed to hold that the assured clear distance ahead is always the distance between the motor vehicle of the motorist and some discernible obstruction in the lane of travel of such motorist. As stated by the Supreme Court, the view of the motorist may be cut off by darkness, by a curve in the highway, or by the crest of a hill. In such case, the distance between the motorist and the point where his vision ends or is cut off is the assured clear distance ahead. Under such circumstances a discernible obstruction may or may not be found in the lane of travel. The specific requirement of the statute is that the motor vehicle be so operated that it can be stopped within the distance between the motor vehicle and the point where the view of the highway is cut off or where a discernible object is found in the lane of travel of the motorist. The offense mentioned in the statute is the improper operation of the motor vehicle and not the collision with a discernible obstruction in the lane of travel of such motor vehicle.

In the case at bar the existence of a sharp curve in the highway, not the bridge or the abutment of the bridge, requires the application of the rule. By reason of the curve, the view of the traveled portion of the highway was cut off and, under the rule, the defendant was required to operate his motor vehicle at such a speed that it could be brought to a stop within the seeable distance.

At no time during the trial did the defendant contend that the assured-clear-distance-ahead provision of the statute had no application. It is apparent from the record that the defendant sought to show a justifiable legal excuse for a noncompliance with this statutory provision. The court in charging on the application of the assured-clear-distance-ahead provision followed closely the rule laid down in the Smiley case.

The defendant did not introduce or proffer any evidence which would bring his case within an exception to the rule or present a justifiable legal excuse.

However, in the case at bar the verdict can and must be sustained on the ground that the second, fourth and sixth counts, under which the defendant was found guilty, charged the defendant with a violation of the first provision of Section 6307-21, General Code, which is-:

“No person shall operate a motor vehicle, * * * in and upon the streets and highwáys at a speed greater -or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing.”

There was evidence of a substantial character to the effect that the defendant operated his motor vehicle at a rate of speed considerably greater than 50 miles per hour. There was ample evidence from which the jury could find that the defendant had violated the provision of the traffic law above quoted.

The defendant contends that there were no traffic signs cautioning the driver of a motor vehicle of the •existence of a traffic hazard. Again we conclude that the failure of the proper authority to erect suitable and -effective warning signs does not relieve the motorist ■of the duty to observe the traffic laws applicable to the situation. In the same category is the refusal to admit in evidence rules and regulations of the highway director relative to the erection of signs.

The record does not show any error committed on the cross-examination of the defendant on collateral matters. An effort was made by the state to impeach the defendant on a collateral and immaterial matter. Counsel for defendant interposed an objection which was sustained.

The record shows that the court interrogated a witness called by the state. The witness had been questioned relative to the speed of the defendant’s automobile as it passed the witness and immediately before the accident. A comparison was attempted to be made-between the speed of the defendant’s automobile and. the speed of the automobile which the witness was driving. At this point an argument took place between.counsel. The court then questioned the witness and. drew from him a statement that the defendant’s automobile was being operated at a speed of over 70 miles per hour. We find no abuse of discretion on the part of the court in interrogating the witness, in view of the-state of the record.

The defendant assigns as error the failure of the-trial court to give three special instructions before argument. The provision of Section 13442-8, General-Code (formerly Section 13675, General Code), relative-to the giving of requested instructions before argument in trials of criminal cases, is discretionary and not mandatory. If the requested instructions are proper they should be incorporated in the general charge. Wertenberger v. State, 99 Ohio St., 353, 124 N. E., 243; Grossweiler v. State, 113 Ohio St., 46, 148 N. E., 89; State v. Houser, 73 Ohio App., 115, 55 N. E. (2d), 273; State v. Weger, 25 Ohio Law Abs., 49. The-defendant requested the court to give four special instructions before argument. The court gave instruction No. 1 and refused to give instructions Nos. 2, 3- and 4. The record shows that requested instructions-Nos. 2 and 4 were completely covered by the general charge. Instruction No. 3 related to the failure to erect signs on the highway at or near the place of the accident, according to the Ohio Manual of Traffic Control. This instruction was not covered by the general charge,, and rightly so, as this matter had no bearing on the-issues in this case.

We find no prejudicial error committed in overruling the defendant’s motion to dismiss at the close-of all the evidence and in overruling defendant’s motion for a directed verdict. Neither do we find any terror in the record relative to the rulings of the court •during argument of counsel, nor in the general charge.

As we find no prejudicial error in the record, the .judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    In re Will of Fox: Kane, Appellant, v. Fox, Appellee.
    (No. 556
    Decided April 26, 1948.)

      Messrs. Young & Young, for appellant.

      Mr. Frank J. Hilts, for appellee.
   Carpenter, J.

This appeal on questions of law ■brings to this court for review a judgment of the Pro-hate Court denying an application to probate the lost will of Alvin E. Fox.

In Ohio, the right to make a will, by whom it may he made, how it may be done and how it shall be put into effect by probate and record are all governed by :statute. The substantive law of wills had its origin in the Statute of Wills, 32 Henry VIII. Neither in England nor Ohio has it ever been controlled by the rules or principles of the common law. See Allen v. Little, 5 Ohio, 65; Lessee of Gillis v. Weller, 10 Ohio, 462.

Our procedure for the probate of a lost will appears in Section 10504-35 et seq., General Code, the material sections being :

Section 10504-35. “The Probate Court may admit to probate a last will and testament which it is satisfied was executed according to’ the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated or destroyed' subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, or before the death of such testator if testator’s lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, and it can not be produced in court in as full, ample and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate.”

Section 10504-38. “If upon such proof, the court is satisfied that such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming incapable as aforesaid; or before the death of the testator if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, such court shall find and establish the contents of such will as near as can be ascertained, and cause them and the testimony taken in the case to be recorded in such court.”

In its judgment, the trial court expressly found present ail the conditions enumerated in these sections, •except as follows:

“The court further finds that there is not sufficient evidence according to the law of the state of Ohio of the existence of said will at time of testator’s death, or its destruction previous to his death without his knowledge to warrant the court to probate said will.”

The record is such that it cannot be seriously contended either that the will was unrevoked at its maker’s death and has since been lost, or that it was proved by clear and convincing testimony that he lacked knowledge of its loss or destruction before his death.

The proponent, a stepdaughter of the decedent, contends that the will was made in performance of a part of a contract between her and Fox, by which she released to him practically all her rights in the estate of her deceased mother on condition that he will to her all his property, and that by reason thereof he lacked power to revoke it.

As this record stands, there is substantial evidence that some such contract may have been máde. However, that is not a condition under which a lost will can be probated under our statute.

Whether there was such a contract, and, if so, whether there is any remedy available to the proponent by which she can enforce it, is not in this proceeding. Such cannot be done under the will statutes quoted above. The judgment of the Probate Court was correct and must be affirmed.

Judgment affirmed.

Conn and.FEss, JJ., concur.


author: By the Court.

text:
    The State of Ohio, Appellee, v. Miller, Appellant.
    (No. 1981
    Decided November 11, 1948.)

      Mr. Mathias Heck, prosecuting attorney, and Mr.. Herbert M. Jacobson, for appellee.

      Mr. Walter L. Connors, for appellant.
   By the Court.

This cause is submitted on motion-of ■ plaintiff, appellee herein, to dismiss the appeal on-the ground that no bill of exceptions was filed. After-considering the assignments of error and the treatment of the errors assigned by defendant, appellant herein, in her brief, we conclude that a bill of exceptions will be required to exemplify the errors complained of. There being no bill of exceptions and the time within which a bill of exceptions may be filed having expired, the motion to dismiss the appeal will be sustained.

Motion sustained.

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


author: Montgomery, J.

text:
    Ryan, Appellee, v. Ryan et al., Appellants.
    (No. 2298
    Decided June 9, 1948.)

      Mr. Edward S. Sheck, Mr. E. D. Fritch, Mr. Willard 'Thomas, Mr. Martin Hunker and Mr. Robert Sheck, for appellee.

      Messrs. Amerman, Mills, Mills, Jones & Mansfield, Mr. Harry Mencher and Mr. Carl Horn, for appellants.
   Montgomery, J.

This action was instituted in the Prohate Court of Stark county by the filing of a petition by the plaintiff, appellee herein, in which she-averred that she was the surviving spouse of Harry R. Ryan, deceased, who died intestate on or about February 8, 1947. The prayer of the petition was-that the court determine who are the heirs of the decedent, entitled by law to inherit his estate. Issues having been made, the cause was tried in the Probate-Court, which found on behalf of the plaintiff that she had proved by clear and convincing evidence that she* is the widow and sole heir of Harry R. Ryan, deceased. From that judgment this appeal was perfected, and as-an appeal on questions of law it was submitted to this-court.

The assignments of error are that the judgment of' the Probate Court is contrary to law; that it is against the weight of the evidence and not sustained by any evidence; that the court erred in the exclusion of evidence offered by the defendants, appellants herein;, and that the court was prejudiced against the defendants. There is another alleged error urged strenuously, but not formally assigned as such, in that in one respect the court admitted certain evidence which should' have been excluded. The admissibility of these two-items of evidence will be discussed in the course of this opinion in connection with the issues, or alleged issues, to which they are directed.

As to the last assignment of error, to wit, the alleged' prejudice upon the part of the Probate Court, suffice it to say that we find no basis for any such contention. We marvel at the patience of the trial judge and the-leniency shown by him in the permission accorded the-parties to introduce incompetent evidence, and upon his submitting to the continued repetition of questions- and to endless arguments and bickerings upon the part-of counsel.

We have read with care the very extended briefs submitted on both sides, and we have read this unnecessarily long and exceedingly nauseating record submitted to us. We say “nauseating” advisedly. The record shows that this decedent, following his death, was found to have been possessed of approximately $200,000, accumulated, so far as the record discloses, by his operation, either as owner or lessor, of a series of houses of prostitution. The plaintiff, who claims to have been his common-law wife, is shown to have been at times operating one of these houses, to have committed adultery with other men and, while she lived with the decedent, to have alternated with him in the use of his bedroom with another woman known as Thelma Hostetter or Thelma Maurer, who was, and is, a confessed prostitute and the operator of one of his houses. She was from time to time his acknowledged paramour, both in Canton and on numerous trips which they took to other cities and states. But, in passing, it might be observed that the defendants can make no claim of special virtue when discussing the decedent or his alleged common-law wife or this other woman. There is evidence in the record that the decedent and this woman on various trips took with them his Uncle Thomas Ryan, known familiarly as “Uncle Tom,” and a star witness for the defendants. On one of their trips through the south this decedent and this woman took with them one of the defendants, the decedent’s sister, and with them her young daughter. On another of the trips of these two people, made to New York city, they stayed with his sister, a defendant herein, who resides in New York. One of the defendants, a half brother of the decedent, is shown to be a gambler and the husband of a woman who operates another house of prostitution.

As we view it, these things are of no importance in deciding the real issue, but they are mentioned in view of the very strenuous claims made by the defendants as to the character of the decedent and the character of the plaintiff and the actual relationship between them.

The trial court in the course of his opinion made this pronouncement, with which we are in complete accord:

“The sole question to be determined by this cqurt is: Who is or are the heirs at law of Harry Ryan, deceased?

“The business, character, citizenship, or criminal record of any of these alleged heirs at law is not involved or considered by the court in deciding the issue in this cause.

“The amount of or the method by which the estate of Harry Ryan was procured is not important nor considered by the court in deciding the issue in this cause. If Rose Ryan was the wife of Harry Ryan at the time of his death she is his sole heir. If she was not, his brothers and sisters are his heirs at law.”

The undisputed facts are that this plaintiff was, in the year 1918, duly married to one Carl Keeler, and there is nothing in the record to indicate that they ever were divorced. He died in 1940. The plaintiff and the decedent went through a ceremonial marriage in 1924 and lived together as man and wife thereafter until his death in 1947, except for certain periods of •time when they were separated and temporarily cohabiting with other people. So far as the record is .concerned we have no difficulty in finding that the marriage ceremony in 1924 was invalid. But we likewise ¡have no difficulty in finding that these two people were living together as husband and wife, and, except for the existence of an undivorced husband, all the necessary elements were combined to support the contention that she was his common-law wife. After the death of the first husband in 1940, all the elements necessary to establish a common-law marriage existed. Moreover, there is in evidence the statement of a Canton attorney to the effect that shortly before Ryan’s death these parties openly acknowledged that they were husband and wife and took each other as such.

We find, as did the trial court, by clear and convincing evidence that this woman was the common-law wife of Harry R. Ryan, and, consequently, his sole heir at law. ■

Because of the amount involved and the questions raised and the conflicting authorities upon this proposition, we deem it important to go at some length into these authorities. We have given some consideration to the numerous authorities cited from other states and from text books, but we do not deem them important. We think the law upon this proposition is correctly stated in the first paragraph of the syllabus in the case of Howard v. Cent. Natl. Bank of Marietta, 21 Ohio App., 74, 152 N. E., 784, which is:

“Existence of common-law marriage is to be determined by law of state where it was consummated.”

Counsel for defendants insist, and repeat in brief their insistence, that they are protected by the doctrine laid down in the cases of In re Estate of Redman, 135 Ohio St., 554, 21 N. E. (2d), 659, and Lumas v. Lumas, 26 Ohio App., 502, 160 N. E., 480.

As to the Redman, case, several things are to be observed. When 'the relationship between these parties was assumed, as stated by the court in the opinion at page 559, “their action was no more than the most casual beginning of a state of fornication. There is complete failure of proof of an agreement in praesenti to enter into the relationship of husband and wife. ’ ’

Furthermore, the principle announced in the Red-man case was explained and broadened by the later decision of the Supreme Court, in the case of Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304. So that in our judgment the Redman case is no longer of any value. We pointed out the distinction between the cases, as we understand it, in our opinion in the case of Abbott v. Industrial Commission, 80 Ohio App., 7, 74 N. E. (2d), 625. And the Lumas case is based upon a state of facts somewhat similar to that in the Redman case.

These situations are altogether different from the situation existing in the instant case. But even these propositions are qualified in the case of Dirion v. Brewer, Admr., 20 Ohio App., 298, 151 N. E., 818, when in the seventh paragraph of the syllabus it is stated:

“If parties agreed to live together as husband and wife, and followed that by present cohabitation, irrespective of illicit relation which may have been starting of their relationship, it would constitute a common-law marriage.”

Counsel for defendants with some satisfaction referred to an opinion of the Probate Court of Tuscarawas county in the case of In re Estate of Goettge, 32 Ohio Law Abs., 620, 19 O. O., 138, 6 Ohio Supp., 89. The judgment in the case was affirmed without opinion ,by this Court of Appeals, and the second and third paragraphs of the syllabus in the Goettge case are rurged as the law in this Appellate District. Suffice it ■to say that the affirmance of that judgment of the Probate Court means nothing more than that we regarded it as right under the facts in that case. And, as stated by the Supreme Court in the course of the opinion in the case of Johnson v. Wolford, 117 Ohio St., 136, 141, 157 N. E., 385, all common-law marriage cases are decided upon the peculiar facts of those cases. The published syllabus of an opinion of an inferior court is not the law, except as based upon the facts in the given case. As is well known, the syllabi of cases in these unofficial reports are frequently not written by the judges rendering the opinions, but are written by staff members of the publishing house. An affirmance by a reviewing court of a judgment of a lower court does not mean the adoption of a published syllabus.

We have in Ohio, a section of the General Code, to wit: 11989, which is in this language:

“Proof of cohabitation, and reputation of the marriage of the parties, is competent evidence to prove such marriage, and within the discretion of the court, may be sufficient therefor.”

And we may with propriety refer to the old case of Bruner v. Briggs, 39 Ohio St., 478, which was the law as understood in Ohio for many years, and still is the law except as it may have been qualified by the Redman case. supra, which in turn was qualified by the Markley case, supra.’

This Markley case being the latest pronouncement of the Supreme Court upon this subject is entitled to more weight than any other case submitted, because, as we view’ it, it extends and clarifies the law as previously understood, and, in our judgment, the decedent and the plaintiff brought themselves clearly within the rule prescribed in this Markley case. The second paragraph of the syllabus in that case is:

“While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

The Probate Court relied to a very great extent, and we think with propriety, upon the case of Johnson v. Wolford, supra, where a situation very similar to the instant one existed, and the syllabus of which case is:

“Where F., innocently and in good faith enters into a ceremonial marriage with J., which is void when contracted because J. has at the time a valid and subsisting contract of marriage with M., the removal of the impediment to such marriage by the death of M., and the continued cohabitation between F. and J., after the death of M., operate as a ratification and a validation of such marriage as to F. from the date of the death of M., though the death of M. may not have been known to F. and J.; the intent and actual agreement to be married which inhered in the ceremonial marriage innocently contracted by F. will be imputed by the law to the cohabitation after the death of M. so as to establish a valid marriage at common law.”

It is to be noted, answering the contention of defendants that this inures only to the benefit of the so-called innocent party,' that the, syllabus and the opinion do not so hold, but they do hold that after the death of the first lawful husband the relationship between the parties concerned was such, “as to establish a valid marriage at common law.”

In this connection we choose to discuss the error alleged in argument, to wit, that the trial court erred in admitting proof of conversations had in 1922 or 1923 between the first husband of the plaintiff and her father, mother and sister to the effect that this husband had stated to these other people that he had been divorced from Rose. The record shows that this information was transmitted to the plaintiff prior to her ceremonial marriage with Ryan. We hold this evidence to have been competent as showing the good faith of the plaintiff when she entered into the ceremonial marriage and began her relationship with Ryan.

The excluded evidence to which exception is taken is that of a certified copy of a record from the state of Arkansas with reference to alleged relationship maintained for a time in Hot Springs between Rose Ryan and a man by the name of Azar. This was offered in connection with the testimony of this same “Uncle Tom,” who seems to have appeared conveniently on many strange occasions. We hold this evidence to have been incompetent. As in fact all the other evidence with reference to these extra-marital relations between the decedent and his paramour Thelma, or between the plaintiff and any man other than the decedent were incompetent.

We think that on this proposition the law is correctly stated in the eighth, paragraph of the syllabus in the case of Howard v. Cent. Natl. Bank of Marietta, supra, wherein it is held:

“Effect of proof of common-law marriage is not destroyed by the man’s later adulterous career with another woman.”

Finally, we are favored with the submission to us' of an opinion rendered by the Court of Appeals of Summit county on May 11, 1948, in the case of Hale, Exrx., v. Graham. Of course this opinion is unofficial, not yet having been published, but presumably will be published officially, and, in any event, the opinion submitted shows a state of facts very similar to the facts in the instant case and shows the conclusion of the court to be the same conclusion which we reach in the instant case.

The judgment of the Probate Court is affirmed.

Judgment 'affirmed.

Putnam, P. J., and McClintock, J., concur.


author: Wiseman, P. J.

text:
    The State, ex rel. Coleman, Appellee, v. Munger et al., County Commrs. of Montgomery County, et al., Appellants.
    (No. 1972
    Decided May 17, 1948.)

      Messrs. Iddings, Jeffrey, Weisman & Rogers, for appellee.

      Mr. Mathias E. Seek, prosecuting attorney, and Mr. Albert J. Dwyer, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law and fact from the Common Pleas Court of Montgomery county. The action was brought by-John E.. Coleman, as a taxpayer of Montgomery county, to declare null and void a contract awarded by the county-commissioners to Asphalt Products and to enjoin its execution and performance. The case was submitted on an agreed statement of facts and the testimony of one of the commissioners taken before a special master commissioner.

Briefly, the statement of facts shows that an advertisement was duly published by the commissioners of Montgomery county for sealed bids for resurfacing" with T-35 type “A” material three roads known as Cornell drive, Stroop road and Needmore road. The-legal advertisement provided that “bids shall be upon blank forms to be obtained from the office of the county engineer.” Two sealed proposals were received by the commissioners, one from Boyd & Cook Company and the other from Asphalt Products.

The blank form furnished by the county engineer to-Boyd & Cook Company complied in every particular with the specifications and advertisement with respect, to the roads to be resurfaced. The blank form furnished by the county engineer to Asphalt Products included the three roads to be resurfaced and an additional road, the Airway road, and called for 19,604-tons of resurfacing material rather than 14,273 tons-as stipulated in the legal advertisement. The form-furnished Boyd & Cook Company contained two items which required the bidder to state the cost of the “premium on industrial insurance” and the cost of “maintaining traffic lights, signs, barricades and watchmen, 24-hr. service.” Those two items were not set forth in the form furnished to Asphalt Products. Both contractors bid $5.80 per ton for material. Boyd & Cook Company bid $1,000 for cost of insurance and $1,000 for cost of maintaining traffic lights, etc. Asphalt Products placed no separate bid on the last two items mentioned.

The commissioners accepted the bid of Asphalt Products after being requested by Boyd & Cook Company to reject all bids. The plaintiff, appellee herein, informed the prosecuting attorney of Montgomery county of the facts and requested him to bring an ■ action enjoining the execution and performance of the contract awarded Asphalt Products, which request was refused. Thereupon the plaintiff instituted this action, as a taxpayer of Montgomery county, as authorized by the provisions of Sections 2921 and 2922, General Code.

The plaintiff,, as a taxpayer of Montgomery county, was given the legal right to institute the action. His right to prosecute the action is not barred because he has a financial interest in Boyd & Cook Company. In the absence of a showing to the contrary,' the court must conclude the action was instituted in good faith in the interest of the public. Spahr v. Brown, Secy. of State, 19 Ohio App., 107, 110; State, ex rel. Dacek, v. Cleveland Trinidad Paving Co., 35 Ohio App., 118, 124, 171 N. E., 837.; 39 Ohio Jurisprudence, 22, Section 12; 52 American Jurisprudence, 15, Section 22.

The plaintiff contends that there was no actual competitive bidding as required by statute. Sections 6945 and 6946, General Code, control the legal advertisement, the bidding and the awarding of the contract.

Section 6945, General Code, in part, provides:

“The contract shall be let upon the basis of lump ■sum bids, unless the commissioners order that the same be let upon the basis of unit price bids, in which •event- it shall be let upon such basis.”

The legal advertisement provided that plans and specifications were on file in the office of the county engineer and the office of the county commissioners-for the inspection of all parties concerned. Paragraph 8 of the specifications provided: “The contractor shall bid a unit price per ton for furnishing,, applying and rolling the T-35 according to the specifications and the direction of the county engineer.”' Thus, under the statute and the specifications, a bid: on the unit price per ton was required.

The specifications did not require a separate bid on the maintenance of traffic or industrial insurance. With respect to the maintenance of traffic, paragraph-3 of the specifications provided: “Traffic shall be maintained at all times to the satisfaction of the county engineer. The item of maintaining traffic shall include furnishing lights, signs, barricades and watchmen necessary to secure the unimpeded flow of traffic, twenty-four (24) hours daily.” - With respect to insurance, paragraph 10 of the specifications provided: “State labor laws regarding the eight hour-day, sanitation, safety code, industrial compensation,, liability, etc., shall apply.”

Under the statutory provisions applicable (Section-6945), the legal advertisement and the specifications,, we conclude that the bid of a unit price per ton included the cost of “maintaining traffic, etc.,” and “industrial insurance,” and that no separate bid on those-items was required. The bid of Boyd & Cook Company listed the cost of these two items separately, whereas the bid of Asphalt Products omitted those two ■ items. The bidders were bound- by paragraphs 3 and 10 of the specifications and were compelled to comply therewith. The record shows that Boyd & Cook-Company by letter delivered to the commissioners, before the bid of Asphalt Products was accepted,, waived compensation for the two items of maintaining traffic and industrial insurance and agreed to fur-nish material at $5.80 per ton in conformity with its bid. This action on the part of Boyd & Cook Company did not have the effect of making the bidding ■competitive if it was otherwise noncompetitive. Whether the bidding was competitive must be tested ■by the bids submitted at the time they were opened. Beaver & Butt v. Trustees of Institution for the Blind, 19 Ohio St., 97, 108.

We now consider the principal question for determination. The advertisement provided for letting bids for resurfacing three roads. The furnishing of 14,273 tons of T-35 type “A” material was required. 'The specifications conformed to the advertisement. The bid of Asphalt Products was for the resurfacing ■of the three roads stipulated in the advertisement and specifications and, also, an additional road, and provided for the furnishing of 19,604 tons of T-35 type “A” material. The bid of Asphalt Products called for ■furnishing 5,331 more tons of material than the bid of Boyd & Cook Company. . Under the bid- of Boyd & Cook Company the record shows the average length ■of haul of material for the three roads would have been 6.6 miles, and, if the fourth road had been in■cluded, the average haul would have been 5.5 miles. The record is silent in either case with respect to the ■average length of haul required of Asphalt Products. Concededly, the length of haul of material and the ■quantity of material to be furnished affected the amount of the bid of a unit price per ton. Those two factors were material in arriving at the cost. Because ■of the variance of the material to be furnished and the roads to be resurfaced, as reflected by the two bids, it is obvious that the two bidders were not bidding on 'the same project.

It is claimed that the commissioners in the exercise •of their discretion have the authority to waive irregularities in a bid. Although the law gives the commissioners the authority to waive irregularities or requirements as to the form of bids (State, ex rel. Ross, v. Board of Education, 42 Ohio St., 374, 379; State, ex rel. Ayres, v. Green et al., Commrs., 22 C. C. [N. S.], 321, 327, 33 C. D., 586; Ach et al., Commrs., v. State, ex rel. Brielmaier, 43 Ohio App., 525, 183 N. E., 543; 33 Ohio Jurisprudence, 694, Section 53), they have no authority to waive defects which affect or destroy competitive bidding (Beaver & Butt case, supra; Boren & Guckes v. Commrs. of Darke County, 21 Ohio St., 311, 322; State, ex rel. Office Speciality Co., v. Betts et al., Commrs., 2 C. D., 434, 4 C. C., 86; Pease v. Ryan, 3 C. D., 654, 657, 7 C. C., 44; Lake Shore Foundry v. City of Cleveland, 4 C. D., 230, 8 C. C., 671; Mulcahy v. City of Akron, 27 Ohio App., 442, 161 N. E., 542; Foley v. City of Cincinnati, 29 Ohio Opinions, 51, 14 Ohio Supp., 78; 33 Ohio Jurisprudence, 694, 697, 698, Sections 53, 55, 56; 43 American Jurisprudence, 789, Suction 46).

The bid of Asphalt Products differing from the-legal advertisement and the specifications so materially as to substantially affect the price, the commissioners were not invested with discretion or authority to waive this vital defect.

It is claimed that a representative of Asphalt Products read the advertisement and discussed with one-of the commissioners the roads to be improved, prior to submitting the bid,' and, therefore, he was advised that the improvement affected only three roads instead of four. Whether the bid submitted complied with the law relative to competitive bidding is determined not by the knowledge of the bidder but by the character of the bid submitted. True, there is no-charge of fraud, bad faith or improper conduct on the-part of bidders or officials concerned. However, when it is reasonably certain that factors, which would! materially affect the price, entered into the submission of one bid, which were not considered in the other hid as submitted, as shown by the record in this case, the bidding has not been competitive as required by law. In such case the commissioners have no discretion to exercise.

Permanent injunction is granted against defendants as prayed for. An entry may be drawn accordingly.

Decree accordingly.

Miller and Hornbeck, JJ., concur.


author: By the Court..

text:
    Kemp, Appellee, v. Feldman, Appellant.
    (No. 1970
    Decided July 28, 1948.)

      Mr. Mason Douglass, for appellee.

      Mr. Harold H. Singer and Mr. Joseph W. Sharts, Jfor appellant.
   By the Court..

This is an appeal on questions of law and fact from a judgment of the Common Pleas-Court of Montgomery county, which granted a permanent injunction to the plaintiff.

The plaintiff alleges that he is the lessee of a tract of land leased from the estate of Louise Kennedy and consisting of approximately 16 acres; that the lease provides for the exclusive occupancy of such acreage by the plaintiff; and that the plaintiff continuously used the acreage, planting approximately 15 acres in corn and using part of the acreage as a public dump. Plaintiff claims that his lease covered the period from' March 1, 1947, to March 1, 1948. Plaintiff alleges-further that the defendant purchased from the Kennedy estate six acres of the tract leased by the plaintiff; that the defendant has assumed control of such, acreage including the public dump; and that the defendant has trespassed upon the property subject to-the control and possession of the plaintiff and has-otherwise interfered with the plaintiff’s use and enjoyment thereof. Plaintiff prays for a mandatory injunction against the defendant.

The defendant in his answer denies that the plaintiff has a lease of the property from year to year ancb alleges that the plaintiff was only given permission to use the land in question during the corn growing-season; that the corn growing season ends about November 15, 1947; and that the plaintiff was not given the exclusive occupancy of the tract, the right to use the same throughout the year, or the right to establish-a public dump on the premises. Defendant alleges further that he purchased from the Kennedy estate six-acres of the tract, on August 13, 1947; that he had no' notice of any lease of the plaintiff; that the plaintiff had no authority to operate a public dump on the-premises; and that, in operating the dump, the plaintiff forfeited his right to occupy the land.

The trial court rendered separate findings of fact ;and law. Upon the evidence introduced, the trial -court found that the land in question had been rented ■by the plaintiff for several years prior to the purchase •of the six acres by the defendant in August 1947; that the land was rented for farming purposes; and that the plaintiff had farmed the six acres in question for ■several years, planting thereon corn and other crops in the proper season. The court found that the plaintiff rented the land by the year, from March 1st to March 1st, and that he paid the Kennedy estate the •sum of $65 for rent for the period from March 1947 to March 1948. The court further found that, at the time of the purchase of the six acres by the defendant, the plaintiff had growing crops on the acreage, including corn which then and at the .time of the hearing was still standing and not ready for cutting or shocking; that the corn crop was on the premises with the knowledge and consent of the Kennedy estate; that the plaintiff had the right by virtue of the rental .agreement to the exclusive use and occupancy of the premises for farming purposes; and that the owner had recognized the plaintiff’s yearly tenancy and permitted crops to grow and remain thereon during the ■year.

The trial court found further that the defendant purchased the six acres from the Kennedy estate; that in August 1947 he immediately entered the premises and ordered the plaintiff to surrender the same, allowing the plaintiff the right and privilege to remove the corn crop; that the defendant took possession of part of the acreage, consisting of the area used for a dump, and used the road, located on the acreage rented by the plaintiff, for ingress and egress to the ■dump; that the defendant thereafter proceeded to •operate the dump in the same manner as it had been operated by the plaintiff; and that the Kennedy estate gave no notice to the plaintiff at any time to discontinue the operation of the dump and never claimed a forfeiture of the rental agreement by reason of the operation of the dump by the plaintiff.

The court found further that the rental agreement entered into between the plaintiff and the Kennedy estate gave him the right to remain on the land and to use the same during the year from March 1947 to March 1948; that the plaintiff was in possession at the time the defendant purchased the six-acre tract; that the possession of the plaintiff was known to the defendant at the time he made the purchase; and that the rental agreement between plaintiff and the Kennedy estate was verbal but was attended by the taking of possession and the payment of the rent.

After a careful consideration of all the evidence in this case, which was submitted to this court on the record taken in the trial court, this court arrives at the same conclusion on the facts as did the trial court. The evidence amply supported the findings of the trial court, which this court approves and adopts as its own.

We make these additional observations:

The evidence showed that in this farming area there is a custom that the tenant who rents land in the month of March for farming purposes is given the use and occupancy and enjoyment thereof to March of the following year; that the plaintiff’s possession was open, notorious, unequivocal and exclusive; and that the defendant at the júme he purchased' the six-acre tract was informed by the Kennedy estate that the plaintiff was in possession under a rental agreement.

Where a tenant is in open, notorious, unequivocal and exclusive possession of real property, under an apparent claim of interest, notice of certain things is given, according to the universal rule, to those who deal with the property. The purchaser of land which is in the actual possession of a third party is chargeable with notice of any equitable right of the party in possession. 24 Ohio Jurisprudence, 747, Section 13. See, also, Dunkel v. Hedges, 15 Ohio App., 259.

In the instant case, the facts are that the rental agreement was verbal, and that the plaintiff in March 1947 paid $65 as rent for the premises by check, which was presented in evidence, and immediately took possession of the premises in pursuance of the rental agreement. The taking of possession of property by the tenant under an oral lease is sufficient part performance to take the contract out of the operation of the statute of frauds. 19 Ohio Jurisprudence, 620, Section 98; 24 Ohio Jurisprudence, 793, 797, Sections 56, 58; La Bounty v. Brumback, 126 Ohio St., 96, 184 N. E., 5; Bumiller v. Walker, 95 Ohio St., 344, 348, 116 N. E., 797, L. R. A. 1918B, 96; Davison v. Miars, 31 Ohio Law Abs., 507.

Although the evidence did not specifically show that the Kennedy estate authorized the plaintiff to operate a public dump on the premises, nevertheless, the plaintiff did operate the dump openly and notoriously for a number of years. At no time did the owner object to the operation of the dump, serve notice on the plaintiff to discontinue - such operation or claim a forfeiture of the tenancy by reason of the operation of the dump. Neither the lessor nor the defendant is in a position to claim that the plaintiff forfeited his tenancy by reason of the operation of the dump. Furthermore, the evidence in this ease showed that the defendant, immediately after purchasing the six-acre tract, proceeded to take control of and operated the> dump in the same manner as it had been operated by the plaintiff.

Although there were additional issues raised by the pleadings, which were later abandoned, and much evidence was presented on the question whether the dump constituted a nuisance and should have been abated, nevertheless, the right of the plaintiff to a permanent injunction restraining the defendant from disturbing the plaintiff’s use and occupancy and quiet enjoyment of the premises in question hinged upon the legal rights which accrued to him under the rental agreement. His tenancy was still in effect at the time the defendant purchased the six-acre tract and at the time of the hearing.

The evidence showed that the defendant entered upon the premises and intended to develop and use the premises immediately in a manner which would have deprived the plaintiff of his rights under his tenancy. Plaintiff, therefore, is entitled to a permanent injunction as prayed for.

Decree for plaintiff.

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


text:
    Brown et al., d. b. a. Hart Mfg. Co., Appellees, v. Franz, Appellant.
    (No. 4128
    Decided October 4, 1948.)

      Messrs. Wiles <& Doueher, for appellees.

      Messrs. Benoy & Sebastian, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, affirming a judgment for the plaintiffs rendered by the Municipal Court of Columbus.

The action was one for damages growing out of a collision between the motor vehicles owned by the plaintiffs and defendant, at the intersection of Rich and Pearl streets in the city of Columbus. Rich street extends in an easterly and westerly direction and Pearl street in a northerly and southerly direction. Plaintiffs’ motor vehicle was being operated in a northerly direction on Pearl street and the defendant’s motor vehicle was being operated in an easterly direction on Rich street. The collision occurred in the intersection.

Defendant, appellant herein, has assigned four grounds of error. The contention is made that the judgment is not sustained by sufficient evidence and is contrary to law. The contention is based on the defendant’s claim that he was entitled to the right of way at the intersection.

The plaintiffs, being on defendant’s right at the intersection, were entitled to the right of way (Section 6307-40, General Code) unless Rich street is found to be a through highway, in which event vehicles operating on Pearl street would be required to yield the right of way to vehicles on Rich street.

Section 6307-63, General Code, provides in part as follows:

“(a) All state routes and all sections of streets and highways on which are operated street cars, trackless trolleys and other electric cars, or motor coaches for carrying passengers for hire along a fixed or regular route under authority granted by the municipal corporation in which such route lies, are hereby designated as through highways provided that stop signs shall be erected at all intersections with such through highways by the state highway department as to highways under its jurisdiction and by local authorities as to highways under their jurisdiction; provided, however, that where two or more through highways intersect and no traffic control signal is in operation stop signs shall be erected at one or more entrances thereto by the department or local authorities having jurisdiction. ’ ’

It is conceded that Rich street at the point of collision was designated as an established route for the operation of motor coaches for conveying passengers for hire by ordinance of the city of Columbus. On the question as to whether a stop sign had been erected on Pearl street the evidence was in conflict. The trial court resolved this issue in favor of the plaintiffs and found that a stop sign had not been erected. We do not find this conclusion was against the manifest weight- of the evidence.

The plaintiffs contend that since the stop sign had not been erected the statutory requirement for the establishment of Rich street as a through highway had not been met. The defendant contends that the erection of stop signs is not a prerequisite to establishing a through highway under paragraph (a) of Section 6307-63, General Code. In support of defendant’s contention it is pointed out that the last clause of paragraph (a) of Section 6307-63, General Code, provides :

“Where two or more through highways intersect and no traffic control signal is in operation stop signs shall be erected at one or more entrances thereto by the department or local authorities having jurisdiction. ’ ’

It is urged that since stop signs may be erected at only “one or more entrances” rather than at every entrance, this provision shows a legislative intent that streets may be established as through highways without the necessity of erecting stop signs. We are not able to draw from this provision such intent. Manifestly, the Legislature intended to provide what may be done when two or more legally established through highways intersect. A superior right may be given vehicles on one through highway over vehicles on another intersecting through highway by the erection of. a stop sign.

We conclude that the words, “provided that stop signs shall be erected at all intersections with such through highways,” as used in the first clause of paragraph (a) of Section 6307-63, General Code, imposes a condition which must be met in the establishment of a through highway. To construe this statute in the manner as contended for by the defendant would require the court to ignore this provision and give it no force or effect. It was not intended by the Legislature that through highways could be established with or without the erection of stop signs. Such a situation, if it were permitted to exist, would certainly confuse the operators of motor vehicles as to their rights at intersections.

The fact that Pearl street is a less travelled street than Rich street is of no consequence. We are not required to determine whether the Legislature acted wisely in enacting this provision. We interpret the statute as we find it.

In Bartlett v. McDonald, 59 Ohio App., 85, 17 N. E. (2d), 284, it was held:

“A street designated by city ordinance as a main thoroughfare does not become a main thoroughfare with the attendant right of way until the appropriate stop signs have been erected on the intersecting streets as required by Section 6310-32, General Code.”

See, also, Connors v. Dobbs, 77 Ohio App., 247, 66 N. E. (2d), 546, and Security Ins. Co. v. Smith, 34 Ohio Opinions, 392, 72 N. E. (2d), 693.

In Bartlett v. McDonald, supra, the court had before it the construction of Section 6310-32, General Code, the substance of which was carried into Section 6307-63, paragraph (a), General Code. Section 6310-32, General Code, provided as follows:

“Local authorities shall have the right to designate by ordinance or resolution additional main thoroughfares and to designate what vehicles shall have the right of way at intersections of main thoroughfares; provided, however, that legible and appropriate signs be erected along the roads and highways intersecting snch main thoroughfares, and that such signs outside the corporate limits of a municipality, shall not be nearer than one hundred feet from such intersection.”

The manner in which the proviso clause is set forth in the present section (6307-63), and the fact that it is not separated from the other portion of the section by any punctuation marks strengthens our conclusion that the proviso clause is a definite condition and limitation upon the establishment of a thoroughfare.

Construing Section 6307-63, paragraph (a), General Code, as we do, the driver of a motor vehicle proceeding in an easterly direction on Rich street would be entitled to the right of way over the driver of a motor vehicle proceeding in a northerly direction on Pearl street, only if a stop sign had been erected on Pearl street. There being no stop sign erected, the plaintiffs, being on the defendant’s right, were entitled to the right of way.

Finding no error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    Delaplane, Appellee, v. Delaplane et al., Appellees ; Keller, Appellant.
    (No. 660
    Decided April 19, 1948.)

      Mr. Wilbur D. Spidel and Mr. Walter F. Bhynard, for appellee Emma Delaplane.

      Mr. S. E. Mote, for appellee U. G. Delaplane.

      Mr. Hugh A. Staley, for appellant.
   By the Court.

This case is submitted on motion to dismiss the appeal on two grounds, first, the motion •of defendant Keller, appellant herein, to be made a party to the suit was made after final judgment had been rendered and, second, the overruling of the motion of appellant to be made a party to the suit was not a final order.

The action was one for divorce in which the court was required to determine the ownership of a 78-acre farm. The court granted a divorce to the plaintiff .and found the title to the farm to be in a defendant, an appellee herein. The court ordered the farm to-be sold and the proceeds divided between the plaintiff and such defendant. After judgment, the appellant, a tenant on the farm, filed a motion to be made a party to the suit and tendered a cross-petition which contains three causes of action, all of which are grounded on his alleged rights as such tenant. He alleges that he rented the farm and moved into the property on March 1, 1947; that he has leased the farm from the plaintiff for the crop year of 1948; that he has been given notice to vacate by such defendant; that he has sown 14 acres of wheat on the farm; that he has furnished certain articles now in use on the farm which he should be privileged to remove; and that he has made repairs, purchased and used seed and fertilizer, in the amount of $245.96 which should be paid to him.

The record shows that the action was pending since October 19, 1946. The petition specifically described the real estate in question and raised the question of ownership. The decision of the court granting a decree of divorce and alimony to the plaintiff and setting aside the deed to the real estate and ordering sale thereof was filed August 4, 1947. A final judgment was journalized January 30, 1948. The motion to be made a party to the suit was filed by appellant on February 14, 1948, together with a tendered cross-petition.

The trial court overruled the motion on the authority of Cook v. Mozer, 108 Ohio St., 30, 140 N. E., 590, on the ground that the doctrine of Us pendens applied.

The first branch of the motion very properly raises the question whether the motion of appellant was seasonably filed.

In the Cook case, the second paragraph of the syllabus is as follows:

“The doctrine of lis pendens has appropriate and -special application in an action for divorce and alimony, especially where the property directly involved and claimed is specifically described in the pleadings. (Tolerton v. Williard, 30 Ohio St., 579, approved and followed.) ”

Although the record in this case shows that the doctrine of lis pendens applies, it is not the application of this doctrine which precludes the appellant from being made a party to the suit. The appellant was charged with knowledge of the litigation and the issues involved. His rights rise no higher than those of his lessor. To that extent he is bound by lis pendens. However, he allowed the action to go to judgment before making a motion to be made a party. The issues between the parties to the suit were concluded. A judgment having been entered, the appellant was first required to comply with the statutory provisions in setting aside or vacating a judgment. This he did not do. It is too late to move to be made a party to 'the suit after judgment is rendered.

Was the order of the trial court In overruling the motion of appellant to be made a party to the suit a final order from which an appeal may be taken? To sustain the appeal appellant cites the case of Central National Bank of Cleveland et al., Trustees, v. Newton Steel Co., 61 Ohio App., 57, 22 N. E. (2d), 428. In that case, a motion for leave to intervene as defendant in a foreclosure action was filed on answer day. The court overruled the motion and an appeal was taken from that order. In the Court of Appeals a motion was filed to dismiss the appeal on a ground that the order of the Common Pleas Court overruling the motion to intervene was not a final order.

The court, in that case, quoted Section 11263, General Code, which provides:

“In an action for the recovery of real or personal property, a person claiming an interest in the property, on his application, may be made a party. ’ ’

The court, on page 70, commented on the effect of this statute, as follows:

'“The language of this section conforms to the equitable rule formerly prevailing in chancery and confers upon the trial court the exercise of a sound discretion in determining whether the overruling of a motion to intervene will affect a substantial right and1 in effect determine the action and prevent a judgment favorable to a person seeking to intervene. It would, therefore, appear that the motion to dismiss the appeal should be overruled and the cause heard solely upon the question whether the trial court abused its discretion in overruling the motion of appellant to intervene. Has the order of the trial court overruling appellant’s motion affected a substantial right which appellant has in this action and, if so, does such order in .effect determine the action and prevent a judgment in favor of appellant?”

The court, in that case, then proceeded to consider the allegations in the tendered answer and -cross-petition, which for the purposes of the motion were-considered to be true. The court finally found that a-substantial right of the appellant was not affected, and that the trial court did not abuse its discretion in overruling the motion to intervene.

We are of the opinion that the provisions of Section 11263, General Code, have no application to the issues herein raised. The sole question, as we see it, is whether the order made by the trial court was a final order within the meaning of the provisions of Section 12223-2, General Code (117 Ohio Laws, 615), which provided:

“An order affecting a substantial right in an action, •when in effect it determines the action and prevents a judgment, or an order affecting' a substantial right made in a special proceeding, or upon a summary application in an action after judgment, or an order vacating or setting aside a general verdict of a jury .and ordering a new trial, is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, as provided in this title. ’ ’

After considering the allegations in appellant’s •cross-petition, which was tendered to the trial court, we fail to see in what way a substantial right of the .appellant was affected. Whatever right appellant possessed which was affected did not have the effect ■of determining the action and preventing a judgment for the appellant. He is still free to pursue any legal •or equitable remedy he may have. In our opinion the •order overruling the motion of the appellant to be .made a party to the suit was not a final order from which an appeal may be taken. If we are incorrect in holding that the order appealed from was not a final •order, then the matter was one of discretion with the trial court. In our opinion, under the state of this record, the trial court did not abuse its discretion in ■ overruling the motion.

Accordingly the court sustains the motion to dismiss the appeal on both grounds.

Motion sustained.

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


author: Hurd, P. J.

text:
    Bagnoli, Appellant, v. The Cleveland Trust Co., Appellee.
    (No. 20682
    Decided January 12, 1948.)

      Mr. Paul Mancino, for appellant.

      Messrs. Todd <& Todd, for appellee.
   Hurd, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court wherein the court directed a verdict and entered judgment for defendant at the close of plaintiff’s case. The action of the court in so doing, and the overruling of the motion for new trial are the principal grounds of. error-assigned. '

The petition of plaintiff prays for damages for breach of contract predicated upon an offer of which the following is a copy:

“The Cleveland Trust Company “Cleveland, Ohio

“November 7, 1935

“Mr. Cono Bagnoli “2193 Bast 30 Street “Cleveland, Ohio

“In re: Land Contract No. 11

“Dear Sir:

“Your proposition was presented to our Real Estate Loan Committee on November 6, and the following action has been determined:

“For consideration of deeding properties on East 63 street and East 37 street which you now own and relinquishing your copy of the blanket land contract ■covering properties on East 25 street and East 29 street and East 36 street we will deliver to you a limited warranty deed giving you title to property located at 2344 East 29 street, free and clear of any incumbrances; the property on East 30 street in which you reside at the present time, we will carry in our files pending final decision of the Home Owner’s Loan Corporation relative to financing this particular piece of property and insisting that you make $15 payments each month which will cover the interest and taxes on this loan and not increase the indebtedness thereon. It has further been agreed that we will accept bonds from the Home Owner’s Loan Corporation to refinance this mortgage loan, even though an amount as low as $1,850 will be offered, in which case we request "that you obtain a loan from the Morris Plan Bank or any other institution, from which you have the privilege of borrowing in the sum of $150 which will have to be turned in toward the payment of this mortgage. The present indebtedness on the 30th street property is in the neighborhood of $2,500. We now have inf ormation that we may realize bonds in the amount of" $2,216 in which case we will not demand that you secure this additional $150 but under no consideration will we accept payment in full on this mortgage in am amount less than $2,000. If for any reason this HomeOwner’s Loan is turned down definitely, the payments above stipulated ($15) will have to be increased to an. amount sufficient to carry interest and taxes and a-payment toward the principal.

“This set-up will be allowed to continue until suchr time that we may receive definite information relative-to the refinancing of this property on 30th street carried under bur loan 29707. We feel sure that this arrangement will meet with your approval and we request that you call at The Cleveland Trust Company,. Real Estate Loan Department, with your copy of the-land contract and be prepared to sign papers whichi we will draw up, giving us title to the property on East 63 street and East 37 street.

“Your immediate attention to this matter is imperative.

“Very truly yours

“The Cleveland Trust Company

“Real Estate Loan Department

“Frank W. Mates”

At the conclusion of plaintiff’s testimony but before he rested, the following stipulation was read into-the record:

“Mr. Mancino: It is agreed and stipulated by the parties that mutual exhibit A is a mortgage on the-East 63 street property, which on November 7, 1935, had a balance due thereon in the approximate sum of' at least $2,000, and that it is further stipulated that on November 7,1935, there was in the Municipal Court. of Cleveland im Case 730610 a judgment in favor of Samuel Silver against Cono Bagnoli and his wife in the sum of $381.30, which judgment was cancelled and satisfied in May, 1936, having been rendered July 5, 1934, and which judgment became a lien on the 63 street property and the 37 street property.

“Mr. Todd: I agree to the stipulation.”

The record clearly shows a verbal acceptance of defendant’s offer by the plaintiff. It also shows a complete renunciation of the contract by the defendant.

The authorities are uniform to the effect that an absolute renunciation of the contract by one of the parties constitutes a breach thereof, giving rise to a right of action for damages and that in such a case notice, demand and tender are waived.

However, in an action for damages for breach of contract the plaintiff, although relieved of the necessity of formal tender, has the burden of showing not only willingness and readiness but also ability to perform the covenants on his part to be performed, including the ability to convey marketable title.

The undisputed facts in this case show that the plaintiff on his part agreed to transfer certain property to the defendant. This promise did not mention character of the title to be conveyed. Under such circumstances the law presumes that a marketable title free of all incumbrances was intended.

A careful examination of the record herein discloses a complete failure of evidence by the plaintiff to show ability to deliver the marketable title in the properties by him to be conveyed. In fact the contrary is indicated by the record, namely, that plaintiff was not in a position to furnish marketable title due to the liens on the properties by him to be conveyed as shown by the stipulation above set forth.

Hence, we conclude that the trial court did not err in directing a verdict for the defendant and entering judgment at the close of plaintiff’s case or in the other respects claimed by defendant. Therefore, the judgment is affirmed.

Judgment affirmed.

Morgan and Skeel, JJ., concur.

      See 12 American Jurisprudence, 963, Section 387; also 886, Section 330.

      See eases of Rife v. Lybarger, 49 Ohio St., 422, 31 N. E., 768, 17 L. R. A., 403; Randabaugh v. Hart, 61 Ohio St., 73, 55 N. E., 214, 76 Am. St. Rep., 361; Halliday v. Diehm, 11 Ohio App., 395.
      See, also, text authorities as follows: 66 Corpus Juris, 903, Vendor and Purchaser, Section 576; Maupin on Marketable Title to Real Estate (3 Ed.), 18.


author: Ross, J. Matthews, P. J.,

text:
    Leeker, Appellant, v. Koehlke, Appellee.

      (No. 6983
    Decided October 11, 1948.)

      Messrs. Long & Bloom, for appellant.

      Mr. Robert G. McIntosh', for appellee.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, in favor of the defendant.

The automobiles of the parties collided at the intersection of Langdon Farm road with Montgomery pike. The plaintiff .testified the defendant was driving his automobile southwardly on Montgomery pike at an unlawful speed, through a red light, and struck the vehicle driven by plaintiff, when, although the traffic light was in favor of plaintiff, he had stopped in order to permit the defendant to pass, and that the plaintiff’s vehicle was struck while so lawfully in Montgomery pike, and so stopped therein.

The defendant testified he was driving southwardly on Montgomery pike at a lawful speed and that the traffic light was in his favor as he reached a point where Langdon Farm road intersects Montgomery pike, when the plaintiff unlawfully interposed his vehicle in his path, in that plaintiff came into Montgomery pike when the traffic light was against the plaintiff. Defendant testified also that as he neared the traffic light it was amber and that when it turned to green in his favor he increased the speed of his automobile to not more than 35 miles per hour. The presumptive limit of reasonable speed on Montgomery pike at the point of collision is 35 miles per hour. The defendant testified that the plaintiff’s automobile was much farther out in Montgomery road than the position fixed by plaintiff. Defendant also stated that plaintiff’s automobile was moving when he first saw it some 50 feet away, but plaintiff had stopped when the defendant was some 20 feet away, the right front fender and grill of the defendant’s automobile striking the left front fender and bumper of plaintiff’s automobile, and that when defendant saw plaintiff had stopped, defendant applied the brakes of his automobile and slid some 15 feet.

The plaintiff claims the court committed error when he stated in the general charge: “There has been some testimony which might tend to show that whatever evidence or damage the plaintiff may have sustained was caused by his own negligence and that the defendant was in no respect negligent.”

The phrase “might tend to show” applies to the negligence of the defendant and contributory negligence of the plaintiff. As to neither does the court assume the proof or existence of a fact, such as was the case in Plotkin v. Meeks, 131 Ohio St., 493, 3 N. E. (2d), 404. No error, prejudicial to plaintiff appears in this portion of the charge.

The plaintiff assigns as error the following statement in the general charge:

“The burden of proving contributory negligence is upon the defendant. If you find by a preponderance of the evidence that the plaintiff’s own evidence raises a •presumption that immediately before or at the time .of the accident in this case he was not in the exercise of .ordinary care, then the burden is upon him to remove that presumption by evidence of equal weight and value.”

This charge is affirmatively incorrect and omits statements in favor of the plaintiff, which it should contain.

It will be noted that the court said “If you find by a preponderance of the evidence that plaintiff’s own evidence” etc., and then later — “then the burden is upon him to remove that presumption by evidence of equal weight and value.” (Emphasis added.)

In other words, the jury is instructed that the duty rests upon the plaintiff to remove any presumption of negligence arising from his own evidence, by the preponderance of the evidence, that is “by evidence of equal weight and value.” This is not the law. 29 Ohio Jurisprudence, 664, “Negligence,” Section 170; Knabb, Admr., v. Scherer, 45 Ohio App., 535, 539, 187 N. E., 574.

The charge omits also a statement that in removing or rather meeting such presumption, the plaintiff is entitled to the benefit of all the evidence in the case, including that of the defendant. Id.

No request was made for an answer to any special interrogatory, and this court is, therefore, unable to say upon what issue the jury founded its verdict in favor of the defendant. No error appears prejudicial to plaintiff on the issue of negligence.

The rule stated in Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461, applicable to errors on the issue of negligence, is not here involved, and the rule applicable to error where multiple issues are involved and errors occur to the prejudice of appellant only upon one issue applies. Under the so-called “two-issue rule,” the sole error, being upon the charge on the issue of contributory negligence (nothing being present to test the verdict in favor of defendant), cannot result in a reversal of the judgment. There is nothing in the record to indicate that the jury in its deliberations ever reached the issue of contributory negligence.

Some complaint is also made that the court charged upon the proper or reasonable speed on Langdon Farm road, and that there is no evidence that plaintiff was guilty of excessive speed. This again would be error involving the issue of contributory negligence and the “two-issue rule” would again apply.

The judgment must, therefore, be affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.

Matthews, P. J.,

concurring. Certainly, the charge on the burden of proving contributory negligence is not beyond criticism. Unquestionably, its meaning is doubtful. I am not persuaded, however, that a construction must be given to it which would make it affirmatively erroneous. As in any event, the application of the two-issue rule requires an affirmance of the judgment, I think the court should refrain from deciding whether substantial prejudicial error is shown in that respect.


text:
    Cox, Appellant, v. Fogle et al., Judges, Appellees.
    (No. 4202
    Decided October 22, 1948.)

      Messrs. Sanborn & Brownfield, for appellant.

      Mr. Glenn E. Kemp, police prosecutor, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, in an action for a declaratory judgment.

The plaintiff, appellant herein, was tried by a jury and found guilty in the Municipal Court of Columbus.

The plaintiff was placed on probation on condition he pay a fine of $250 and costs. After the fine and costs were paid the plaintiff was ordered into court and advised that unless he closed his office a sentence of one year in the workhouse would be enforced. The-threat of imprisonment was not predicated upon a charge of illegal activity in the office but upon the assertion that the plaintiff had violated the terms of his, probation by the simple fact of maintaining his office..

This case was submitted to the trial court on an agreed stipulation. In brief the record appears as follows: On August 15, 1944, plaintiff was found

guilty in the Municipal Court of Columbus, of violating Section 12694, General Code. A motion for new trial was filed which was overruled on September 1, 1944. On the same day the trial judge made an entry-on the “Criminal Docket” as follows:

“Clarence C. Cox Viol Sec 12694 GC

“M.N.T. over ‘ ‘ sen-def

“Prob-eond pay fine-“$250 & costs.”

(Signature of trial judge.)

A stenographic record of the proceedings was taken ■ which shows the following:

“The Court: Stand up, Mr. Cox. Is there anything you wish to say before sentence is pronounced I' The court places you on probation, with the under- ■ standing that you pay a fine of $250 and costs. ’ ’

An appeal was taken and a bill of exceptions which contained the above statement was signed by the trial judge as a true bill.

In the book kept by the clerk of the Municipal Court of Columbus, entitled “Record of Cases” there ap-■ pears a notation as follows:

“6/21 Jury trial — Jury verdict ‘G’ 8-15-44 8/26 mo mo/ov. r 9/1 Sent Def Prob on condition deft pay $250 & costs. Enf 11/20/46 — Sen Enforced Pd BX Sngd & ■ allowed 10/2/44.”

In the “Journal” the following entry was recorded:.

“This day this cause came on for hearing and the-defendant being present in open court. Motion for new trial overruled. Sentence deferred and defendant placed on probation on condition that he pay a fine of $250 and costs.”

(Signature of trial judge.)

In the transcript of the docket and journal entries-certified by the clerk and filed in the appeal proceedings-the above entry was certified as the final entry on file-in the court.

By an agreed entry the appeal was dismissed and' on November 20, 1946, the plaintiff appeared in court in response to its order for enforcement of the sentence and paid to the clerk the fine of $250 and the-costs. After November 20, 1946, the plaintiff was ordered into court and advised that he had not closed1 his office as one of the conditions of the probation according to a “Probation Entry” signed by the trial judge on September 1, 1944. This entry provides that the execution of the sentence is deferred and the plaintiff is placed on probation for a period of five years-upon the following terms and conditions:

í í * * * Other conditions.

“To pay $250 & costs.

“Office to be closed — if practice is resumed or if probation is violated defendant is to be sentenced to workhouse for one year.”

This entry was placed in a drawer in the office of the clerk of the Municipal Court, but it was not stamped as filed, neither was it recorded. No index,, notation or other record was. made of the probation entry and it was not placed with the other papers in the case. In the light of this factual development the-plaintiff asks a declaratory judgment to determine his rights, status and legal relations under the controlling; statutory provision. The trial court found that the paper writing entitled “Probation Entry” was the final order in the case; that the portion of the probation entry which states as follows: “If practice is resumed or if probation is violated defendant is to be .■sentenced to workhouse for one year,” was surplusage .and of no legal effect; and that the conditions of probation imposed by the probation entry were valid and upon violation thereof the court may revoke probation and impose any lawful sentence upon the plaintiff.

Plaintiff may maintain an action for a declaratory judgment to determine his “rights, status or other legal relations” under the statute as authorized by Sections 12102-1 and 12102-2, General Code.

The Municipal Court of Columbus is a court of record. Section 1558-46, General Code. Under the provisions of Section 11604, General Code,

“All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action. The entry must be written into the journal as soon as the entry is filed with the clerk or directed by the court and shall be journalized as of the date of the filing of said entry or of the written direction by the court.”

It is a fundamental rule that a court speaks through its journals. Industrial Commission v. Musselli, 102 Ohio St., 10, 15, 130 N. E., 32; State, ex rel. Industrial Commission, v. Day, 136 Ohio St., 477, 26 N. E. (2d), 1014; In re Estate of Lowry, 140 Ohio St., 223, 227, 42 N. E. (2d), 987; Hower Corp. v. Vance, 144 Ohio St., 443, 448, 59 N. E. (2d), 377.

In the ease at bar the probation entry was not journalized and, moreover, it was never filed with the' ■clerk for journalization. In no sense can it be considered the final order. The order by which the court ■deferred sentence and placed the plaintiff on probation on condition the plaintiff pay a fine of $250 and costs-was the final entry and was regarded as such by the-clerk and the court at the time an appeal was taken. Giving this order the most liberal interpretation it cannot be considered as incorporating the contents of' the probation entry by reference. We cannot read-into the final order the additional conditions found in the probation entry. The trial court regarded a part, of the contents of the probation entry as surplusage. We agree with this conclusion. However, the trial' court enforced as valid that part of the probation entry which provided that the office was to be closed on. the ground that this part of the probation entry was a condition under which probation was granted. In the. first entry the condition on which probation was-granted was specific, complete and authorized by statute and constituted a final order. Section 13451-8,. General Code, in part, provides:

1 ‘ The court may also place such an offender on probation, with the condition that he pay a fine and costs- or either of them, as the case may be, in installments within a limited time, and may, in case of the default in any of such payments, impose such sentence as is; provided by law.”

The trial court exercises a broad discretion in determining whether the offender shall be placed on probation and the terms of the probation. The.terms of the probation should be made a part of the final order,, journalized as such and become a part of the records-of the case. In the instant case perhaps an explanation could be made, but in the stipulated facts no explanation is attempted, why there appear two separate-entries, the second not in accord with the first and not filed with the clerk for journalization.

The fact that by stipulation it was agreed that the-trial judge would state that at the time the plaintiff' was placed on probation tbe conditions of probation •as contained in tbe probation entry were stated orally from tbe bench in tbe presence of tbe plaintiff and bis ■counsel, does not strengthen tbe case. Tbe rule is that ■a court speaks through its journal. Tbe requirements ■of this rule are not met by an oral pronouncement by a court without tbe preparation and filing of a journal ■entry. State, ex rel. Industrial Commission, v. Day, supra.

Tbe plaintiff having complied with tbe terms of probation as set forth in tbe final order, tbe plaintiff should be released.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


author: I-Iildebrant, J.

text:
    The State of Ohio, Appellee, v. Treat, Appellant.
    (Nos. 6973 and 6999
    Decided October 11, 1948.)

      Mr. Carson Hoy, prosecuting attorney, and Mr. Thomas Stueve, for appellee.

      Mr. Harry M. Wasserman and Mr. JoJm L. Daley, for appellant.
   I-Iildebrant, J.

In the Court of Common Pleas, without a jury, defendant, appellant herein, was convicted of taking indecent liberties with a six-year-old girl and acquitted on a second count of indecent exposure.

On being offered as a witness, the child was by the court determined not'qualified to be a witness.

Over objection, the girl’s mother was permitted to testify that on Tuesday night, which was two days after the date of the alleged offense as charged in the indictment, the little girl told her that she was afraid of the defendant because he had hurt her on Sunday,, and, in substance, that the defendant had exposed his person in her presence.

Also, over objection, a fourteen-year-old girl was permitted to testify, without fixing the time, that the little girl had told her the defendant was a nasty person.

The principal error claimed is that the above testimony was incompetent as hearsay and not a part of the res gestae.

From the meagre narrative bill of exceptions, it appears that on Sunday, the date of the alleged offense,, on being returned to her home from an automobile excursion into the country with defendant and her younger brother, the little girl made no complaint,, nor was there anything about her actions or demeanor to indicate that anything unusual had happened to her on that day. The same was true on the next night when defendant was present with the whole family for a considerable time. It was not until the next night that the statement, which was admitted in evidence through the mother’s testimony, was made, which resulted in an examination of the child at a hospital and subsequent prosecution of the defendant.

The doctor who examined the child found a superficial condition of her anatomy to exist and stated that he was unable to give the cause thereof, and that the •condition could be the result of various causes, including a propensity for a child of that age to create the -condition herself.

So from this record there is no evidence of the corpus delicti or to connect the defendant therewith, except the inexplicit statement of the child admitted through the testimony of the mother.

Since there were two earlier opportunities to speak, dhe statement of Tuesday night cannot be considered ■competent as part of the res gestae, as was the situation in the case of State v. Lasecki, 90 Ohio St., 10, 106 N. E., 660, L. R. A. 1915E, 202, Ann. Cas. 1916C, 1182. In the comment on the Ohio statute followed by the court in the instant case in its determination that the child here was not competent to testify, it is stated in •42 Ohio Jurisprudence, 118, Section 107:

‘ ‘ The statute cannot be circumvented by permitting .another witness to testify to declarations made to him by a child who was too young, under the statute, to be .a witness, although the utterance or exclamation of a •child too young to be competent as a witness, which was made immediately after the transaction, is competent as a part of the res gestae.”

The statement, being offered through the mother •as evidence in chief, falls within the rule set forth in Dunn v. State, 45 Ohio St., 249, 12 N. E., 826, wherein It is stated in the second paragraph of the syllabus:

“Such declarations are not admissible as evidence in chief to prove the commission of the offense, but -only to corroborate the testimony of the injured person given in court.”

It was held in Hornbeck v. State, 35 Ohio St., 277, 35 Am. Rep., 608, in the first paragraph of the syllabus:

“On the trial of an indictment for assault, with intent to commit a rape, on the person of a female,, who, by reason of being an imbecile, was incompetent to be sworn as a witness, the declarations of such female, made shortly after the assault, are incompetent to prove the commission of'the offense.”

In State v. Segerberg, 131 Conn., 546, 41 A. (2d),. 101, 157 A. L. R., 1355, it is stated, as reported in A. L. R.:

“On the trial of a charge of indecent assaults upon an eight-year-old child deemed too immature to testify, the rule of ‘constancy of accusation’ does not warrant the reception of the testimony of others as to conversations with the child, not a part of the res gestae,. in which she recited the details of the alleged assaults,, such rule being applicable only when the complainant has testified.”

We, therefore, conclude that the admission of the’ testimony in the manner here was error, prejudicial to the defendant, and, there being no evidence of the corpus delicti or of defendant’s connection therewith otherwise appearing, the court should have dismissed the defendant at the conclusion of the state’s case.

The judgment is reversed with instructions to dismiss the defendant.

Judgment reversed.

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


text:
    Henry, Appellee, v. Mangold, d. b. a. American Machine & Tool Co., Appellant.
    (No. 1947
    Decided December 16, 1947.)

      Messrs. Pickrel, Schaeffer & Ebeling, for appellee.

      Mr. Irvin Carl Dels camp, for appellant.
   By the Court.

This is an appeal on questions of law from an order of the Court of Common Pleas of Montgomery county, denying a motion to dissolve an •attachment for the alleged reason that the facts stated in the affidavit for the attachment were not true. The ground stated in the affidavit was that the claim was ■one for “work” as provided by subdivision 11, Section 11819, General Code. The evidence introduced, which consisted of two affidavits and oral testimony, showed that the plaintiff was employed by the defendant as .a tool designer or designing engineer for tools and other products. Plaintiff stated that he was not a professional engineer although the work required a high degree of skill, training and experience, and that it involved the detailed drafting of plans for the '.manufacture of tools designed to produce parts for ■certain products. In addition to the designing of tools, the plaintiff checked and inspected the work done by the toolmakers, in carrying oiit his designs, to see that the work was correct before it left the defendant’s shop.

It is the contention of the defendant, appellant herein, that the services performed by the plaintiff, appellee herein, did not constitute “work” within the meaning of Section 11819, General Code, but that the services performed were of a professional, skilled engineering nature and could not be designated as “work” or “labor.” The trial court properly held that the language used in the statute is reasonably susceptible of the interpretation that the word, “work,” is used in a broader, more comprehensive sense than the word, “labor,” inasmuch as the word, “or,” separates the two words, indicating that, if services rendered fall within the meaning of either, an attachment may be had if the other requisites of a valid attachment are present. Judge Martin in a lengthy and well considered opinion discussed the reported Ohio cases as well as many from other states. We are in full accord with his legal conclusions therein expressed and adopt his opinion as our own. The law of Ohio seems to be well established that claims for services performed by executives of a corporation or by physicians or attorneys are not claims for “work.” However, in the case at bar, the record discloses that the plaintiff was in the employ of the defendant, that he performed services as an artisan in the production of wealth, and that his exertions were primarily physical and not mental.

The defendant contends also that the plaintiff did not sustain the burden of proof to maintain the aver-merits in the affidavit in that no counter-affidavits were filed. It should be noted, however, that the plaintiff testified under oath at the hearing, which would be as effective- as the filing of an affidavit. We think the trial court properly found that the plaintiff sustained the allegations contained in the affidavit by the proper degree of proof.

We find no error in the record, and the judgment is affirmed.

Judgment affirmed.

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