author: Carter, P. J.

text:
    Hudak, Appellee, v. Penn-Ohio Coach Lines Co., Appellant.
    (No. 2832
    Decided March 23, 1943.)

      Mr. David C. Haynes and Mr. Theodore T. Macejlto, for appellee.

      Messrs. Harrington, Huxley & Smith, for appellant.
   Carter, P. J.

The action below was one for damages for personal injuries claimed to have been sustained by Pauline Hudak, a minor, due to the negligence of defendant company.

The cause came on for trial to the court and jury, resulting in a verdict for plaintiff. Motions for new trial and for judgment notwithstanding the verdict were overruled by the trial court and judgment was entered on the verdict. Appeal is prosecuted to this court.

The facts as disclosed by the record are substantially as follows:

. Paulina Hudak boarded a bu.s .traveling in'a southerly direction on and over a certain street in the city of Girard, known as Davis street. Amhurst street runs in an easterly and .westerly direction intersecting Davis street. At the northwest corner of this intersection is a bus stop where passengers alight and others board the bus. On the day in question the bus upon which plaintiff • was riding came to a stop just north of the street intersection and over close to the west curb of Davis street. At this point plaintiff left the bus and, while other passengers were alighting and others boarding the bus, she proceeded to cross the street to the east side thereof, in front of the standing bus. Another bus belonging to and operated at the same time by defendant'company, which had been following the bus on which plaintiff was riding, proceeded to pass the standing bus and, in so doing, a collision occurred between the bus- and plaintiff, in which she was quite seriously injured.

There is testimony pro and con that an automobile was at the time standing on the east side of the street approximately opposite the standing bus. Davis street is approximately 30 feet wide. The testimony varies, as to the speed at which the bus traveling south was moving at the time of the accident, from 25 to 40 miles per hour. Another bus owned and operated by defendant company was proceeding northerly on Davis street- and had not at the time of the accident reached the intersection, but was in that vicinity.

Now it is the claim of plaintiff that defendant was negligent in the following respects: In operating its bus at the time and place of the accident at 40 miles per hour; in failing to give warning of the approach of its bus; in failing to keep a proper lookout; in failing to warn plaintiff, while she was still a passenger, of the approach, speed and position of the second bus; in operating the second bus to the right and striking-plaintiff ; and in failing to stop when the driver noticed plaintiff directly in front of the bus, it being the claim of plaintiff that a dangerous situation was created by the bus company.

The defendant admits its corporate existence under the laws of Ohio, the minority of the plaintiff, the bringing of the action by her mother as her next friend,, the business of defendant, the existence of Davis street and Amhurst street as intersecting duly dedicated streets in the city of Girard, the first of which extends generally northerly and southerly, the happening of the accident at or near the intersection of these two streets on the fourteenth day of October, 1940, and certain injuries of the plaintiff. It then denies each and all of the statements, averments and allegations in plaintiff’s amended petition and specifically denies that the accident happened in the manner alleged, and that the plaintiff sustained injuries as alleged. It further denies that it was guilty of any negligence as alleged, and avers that any injuries and damages sustained by plaintiff were proximately caused by her own failure to exercise due care in the situation out of which the accident arose.

As to the claim of defendant that it was not negligent as claimed by plaintiff, the record has been read and a goodly portion reread, and we are of the unanimous conclusion that a jury question was presented on that issue, particularly in' the light of the testimony as to the speed of the moving bus at the time of the accident under the circumstances existing at the time.

The reply is a denial of all of the allegations of the answer.

Now it is urged by defendant that the court was in error in the following respects: The verdict of the jury and judgment rendered thereon were eontrai-y and against the clear and manifest weight of the evidence ; the verdict is contrary to law; the damages were excessive; the admission of evidence offered by the plaintiff over the objection of the defendant; the court failed and refused to direct a verdict at the conclusion of the testimony; the general charge to the jury; and the overruling of the motions for new trial and judgment notwithstanding the verdict.

We have already expressed our views that a jury question was presented as to the negligence of the defendant. We are therefore discussing this issue no further.

As to the contributory negligence of the. plaintiff, without reciting the evidence bearing on this issue, we have reached the unanimous conclusion that the finding of the jury that plaintiff was guilty of no negligence directly and proximately bringing about her injuries is against the manifest weight of the evidence. However, we are of the view that plaintiff was not guilty of such negligence as a matter of law. Even though plaintiff may have been guilty of negligence there still remains the question of proximate cause, which we think in this case was a jury question. See Smith v. Zone Cabs, 135 Ohio St., 415, 21 N. E. (2d), 336.

It is urged that the court was in error in charging the jury as to the following allegation of negligence of the defendant:.

“4. In that the operator of the bus in which plaintiff was riding as a passenger failed to exercise the proper degree of care towards her as a passenger, by apprising her of the approach, speed and position in said .Davis street and the close proximity, of the second bus, while she was still a passenger and likewise while alighting from the bus as a passenger.”

The court on this issue charged as follows:

“Now, we will take this relationship of passenger and carrier first and analyze this rather complicated situation. As long as the plaintiff was a passenger on that bus, which means until she had safely alighted therefrom, this duty of exercising the highest degree of practicable care for her safety was the rule, and that duty, I said to you, existed and was measured by the hazards ordinarily to be encountered and the dangers naturally to be apprehended. Now in this exercise of care, what were the hazards ordinarily to be encountered and the dangers naturally to be apprehended with respect to this girl® It is claimed that as to that duty they didn’t perform it in this, that they didn’t warn or apprise her of this other bus proceeding in behind and around the bus which she was getting out of. It is not ordinarily the duty of a carrier to warn a person leaving one of its busses at a regular stop of approaching independently operated vehicles in the street. The duty of the carrier to exercise the highest degree of care to afford its passengers a reasonably safe place to alight, extends only to conditions within the carrier’s own control and does not apply to independent agencies operating in the street, such as a moving vehicle over which the carrier company has no control, but here we have a claim that this warning ought to have been given because the other vehicle was under the power of the same carrier. That is what makes this situation a little unusual. So you have this duty on that branch of the case, you must inquire with respect to this evidence, did the defendant company by its manner of operating its busses, one passing another which was in the act of discharging passengers, create a sudden dangerous situation in the street to persons getting off one bus and undertaking to cross the street in front of it? Now, where a company which operates busses upon public streets as a common car- • rier, has, by the. manner in which it so operates its yarious busses, created a sudden situation of danger, it then is the duty of such carrier company, before discharging a passenger in such dangerous situation,, so by.it created, to either remove the dangerous situation or to warn the passenger of its existence.”

The court recognized in his charge the fact that the relationship of the plaintiff to the company as a passenger terminated when plaintiff had alighted safely to the curb. There was at the point where plaintiff alighted no danger and no injury was there suffered. The injury occurred after the relationship of carrier ' and passenger had terminated, and the defendant, after the termination of such relationship, was required to exercise only ordinary care toward plaintiff commensurate with surrounding circumstances and conditions then and there existing, ordinary care being such care as ordinarily prudent persons would exercise under the same or similar circumstances. We think this is the rule that controls and it was error to charge that, if a dangerous situation was presented at the time, it was the mandatory duty of the driver of the bus on which plaintiff was riding to apprise her before she left the bus that another bus of the defendant was in the immediate vicinity. In 3 Elliott on Railroads. (3 Ed.), 506, Section 1649, we think the true rule is found, which is as follows:

“At common law the railway company is under obligation to exercise ordinary care to prevent collisions with travelers on the highway, and by ordinary care is meant such care as a reasonably prudent man would ordinarily exercise under the circumstances. The company is not bound 'to exercise extraordinary care by using every possible means to prevent injury, but it is bound to use-reasonable precautions. It is said that the care and skill, to be reasonable, must be proportioned to the danger and multiplied chances of injury, and • where the surroundings are such as to render a crossing peculiarly dangerous it is the duty of the company to exercise care commensurate with the danger, and especially if the company has created unusual danger at or near a crossing, it must meet such peril with additional precaution's.”

We are well aware that that authority is a treatise on railroads. However, railroads are common carriers, and we think this rule applies to the defendant as a common carrier.

No doubt this was one of the controlling principles of law given by the court, which resulted in a verdict in favor of plaintiff as the evidence discloses that no such warning was given by the operator of the bus before plaintiff alighted therefrom. We think the court should have charged the jury on ordinary care and left to the jury the question of whether the defendant exercised ordinary care under the circumstances. We think this charge was prejudicially erroneous.

There is another question presented by a further complaint. That is, as to whether the 25 or 35 mile speed-limit provision applied at the time and place of the accident. The court charged as to the 25 mile limit. We have spent considerable time on this question and make the following observations. At the time of the accident the law provided:

“For the purpose of enforcing the .road regulations referred to in this chapter, the main thoroughfare shall be understood to mean all sections of public roads and highways on which are operated street cars, trackless trolleys, other electric cars, or motor coaches for the carriage of passengers for hire along a fixed or regular route under authority granted by the municipal corporation in which the public road or highwav lies, provided the municipal corporation in which such route lies shall erect legible and appropriate signs along the public roads and highways intersecting such main thoroughfares and also all main market and intercounty highways within the state.”

This was Section 6310-30, General Code (118 Ohio Laws, 549).

On page 548 of 118 Ohio Laws, we find that Section 7249 (5) of the General Code was amended to read as follows:

“For vehicles equipped with pneumatic tires designed for the transportation of persons, twenty miles an hour when passing a school building or the grounds thereof during school recess and while children are going to or leaving school during the opening or closing hours, twenty miles an hour in the business and closely built up portions of a municipal corporation, twenty-five miles an hour in all other portions of a municipal corporation, except on state routes and on main thoroughfares, thirty-five miles an hour on state routes or main thoroughfares within municipalities outside of business portions, forty-five miles an hour on highways outside of municipal corporations.”

It is urged that the pleadings and the evidence cover this question. Plaintiff does allege that Davis street is a duly dedicated street, and is one of the main arteries of travel between the cities of Youngstown and Girard, Ohio, and other points north and south. There is testimony which supports this allegation of plaintiff, being some indication that the street in question was a state route or main thoroughfare. However, due to the fact that this case must be retried, the situation as presented in the ease can properly be remedied by establishing the facts necessary to constitute Davis street a part of a state route or main thoroughfare, if such can be established under these sections. There is no necessity of conjecture on this issue. When this matter was called to the attention, of the court at the conclusion of the general charge the court stated that the right to have the 35 mile limitation charged on behalf of defendant had not been established.

The two-issue rule has no application in this case.

As to the verdict being excessive, inasmuch as the case must be retried, we express no views on excessiveness.

For the reasons hereinbefore indicated, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed.

Phillips and Nichols, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Kline, Appellee, v. Falbo et al., Appellants; Williamson et al., Appellees.

      (No. 775
    Decided May 26, 1943.)

      Messrs. Kerr S Irwin, for appellee, Jennie King Kline.

      Mr. Thomas F. Joseph, for appellants.

      Mr. W. V. Frasier, Jr., for appellees, Earl 0. Williamson and Harry 0. Thomson.
   Carter, P. J.

The action below was one for a declaratory judgment. The pleadings constitute the evidence in the case. The trial court found that defendant Earl 0. Williamson had, under the evidence, the first and best lien on the premises in question, that Harry 0. Thomson had the second best lien, and that by reason of the dormancy of the Falbo judgment the Falbos had no lien on the premises.

Appeal is prosecuted to this court on questions of law.

The parties will be designated as they were in the trial court.

The material allegations necessary to a determination of the issues involved are as follows: Plaintiff alleges that under the will of Ella King she, Jennie Kline, became seized in fee simple of an undivided one-seventh interest in the property in question; that a power of attorney was executed to Frank T. Kerr by Jennie Kline and William Kline Sr., her husband, Kerr instituting the action in question; that a sale of the premises in question had been agreed upon; that deeds had been executed by all parties, and the Falbos, Williamson^'and Thomson have or claim to have liens on the undivided interest of Jennie Kline; that these defendants have been unable to agree as to the validity and priority of their respective liens; and that the purchaser refuses to take the premises until the liens are released and title cleared; and prays that he as attorney in fact of Jennie Kline be directed to whom he shall pay the proceeds of the sale of the premises.

To this petition an answer was filed by Thomas and Teresa Falbo in which they aver that they had, at the request and for the accommodation of Jennie King Kline, executed a promissory note as security to the Peoples Bank of Tiltonsville, Ohio; that on default by the plaintiff, the principal maker, to make payment on the note a suit was filed against the defendants, Thomas Falbo and Teresa Falbo, by the bank in the Court of Common Pleas of Jefferson county, Ohio; that judgment was rendered against the defendants in the amount of $940.60 and costs, on June 10, 1932; that by reason thereof the Falbos were compelled to pay and did pay the judgment to the Peoples Bank; that on the tenth day of September, 1937, the Peoples Bank of Tiltonsville, Ohio, executed an assignment of the judgment to the Falbos, which was duly filed with the clerk of Common Pleas Court of Jefferson county, Ohio, and of record; that on the seventeenth day of September, 1937, the Falbos filed in the office of the clerk of the Common Pleas Court of Belmont county, Ohio, a certificate of this judgment, and the same was duly filed in judgment lien docket number 1, page 61, in the records of the court; and that they caused an execution to be levied upon the property in question; and they pray that their lien on such property be declared a subsisting and first lien, and that this lien be satisfied out of the proceeds of the sale.

The defendant Harry 0. Thomson in his separate answer admits generally the allegations of the petition, and further says that he obtained a judgment in the Court of Common Pleas of Belmont county in the amount of $598.13 and costs against plaintiff, Jennie Kline; that this judgment was obtained on the 28th day of November, 1938; that no part of such judgment has been paid'; and that a certificate of this judgment was recorded in volume, one of the judgment lien docket on November'28, 1938, and is a valid and subsisting lien against the premises described in the petition, and the first lien to the claims of the other defendants herein, save and except for the lien of the defendant Earl 0. Williamson; and he prays that the coui’t may upon hearing determine that he is entitled to the second best lien as between these defendants.

Earl 0. Williamson filed his separate answer in which he admits generally the allegations of the petition, and says that he obtained judgment in the Court of Common Pleas of Belmont county for $400 against Jennie Kline, plaintiff; that this judgment was obtained on July 6, 1938; that on August 9, 1938, a certificate of judgment was filed, which was recorded in the judgment lien docket of Belmont county; that no .part of the judgment has been paid; and that his lien is the first and best lien; and he prays that the court may so determine and declare.

Now it is claimed that the court was in error in finding Ealbos’ judgment was dormant at the time the certificate thereof was filed in the office of the clerk of courts of Belmont county for the reason there is no evidence upon which to base such finding.

A perusal of the answer of the Falbos discloses that on the 17th day of September, 1937, they filed in the office of the clerk of courts of Belmont county a certificate of their judgment, and the same was duly filed in judgment lien docket number 1, page 61, in the records of the court, and on March 2, 1942, an execution was levied on the property. This is the evidence as to' the filing of the certificate of judgment in Belmont, county.

The trial judge had before him the allegations as to when judgment was rendered against the Palbos and Jennie Kline in favor of the Peoples Bank of Tiltonsville, Ohio, which rendition of judgment bore date of June 10, 1932. This judgment was rendered in Jefferson county, and no certificate of same was filed in Belmont county until the 17th day of September, 1937. We must assume that had there been anything done to stay the dormancy of this judgment prior to the filing of the certificate in Belmont county on September 17, 1937, such would have been alleged in the answer of the Palbos in attempting to preserve the priority of their liens over the liens of the other defendants. In other words, we must assume that the Palbos in their answer set out every claim that they had in attempting to preserve their claimed lien and its priority, and we conclude that such was done when they were represented by such able counsel as they had selected to represent them. If we are correct in this regard how stand the Palbos with reference to a living lien and with reference to its priority over that of the other defendants? The Palbos’ judgment was rendered as hereinbefore indicated on June 10, 1932, more than five years having elapsed from the time of its rendition until a certificate of this judgment was filed in Belmont county, which filing bears date of September 17, 1937.

Section 11663 of the General Code provides:

“If neither execution on a judgment rendered in a court of record or certified to the clerk of the Court of Common Pleas in the county in which such judgment was rendered be issued, nor a certificate of judgment for obtaining a lien upon lands and tenements be issued and filed, as provided in Sections 11656 and 11656-2 of the General Code, within five years from the date of such judgment, or within five years from the date of the issuance of the last execution thereon or the issuance and filing of the last such certificate thereof, whichever be later, then such judgment shall be dormant and shall not operate as a lien upon the estate of the judgment debtor. If, in any county other than that wherein a judgment was rendered, such judgment has become a lien by reason of the filing, in the office of the clerk of the Court of Common Pleas of such county, of a certificate of such judgment as provided in Sections 11656 and 11656-2, and if no execution be issued for the enforcement of such judgment within such county, or no further certificate of such judgment be filed in said county, within five years from the date of issuance of the last execution for the enforcement of said judgment within said county or the date of filing of the last certificate in said county, whichever be the later, then such judgment shall cease to operate as a lien upon lands and tenements of the judgment debtor within such county.”

There is no claim made that any action has ever been instituted by the Falbos, since the rendition of the judgment, to have same revived under the provisions of Section 11645, General Code. Therefore five years after its rendition the Falbo judgment became dormant and has remained so since five years subsequent to its rendition, the five-year period having elapsed on approximately June 10, 1937.

Section 11663, General Code, provides in part:

‘‘If, in any county other than that wdierein a judgment was rendered, such judgment has become a lien by reason of the filing, in the office of-the clerk of the Court of Common Pleas of such county, of a certificate of such judgment as provided in Sections 11656 and 11656-2, and if no execution be issued for the enforcement of such judgment within such county, or no further certificate of such judgment be filed in said county, within five years from the date of issuance of the last execution for the enforcement of said judgment within said county or the date of filing of the last certificate in said county, whichever be the later, then such judgment shall cease to operate as a lien upon lands and tenements of the judgment debtor within such county.”

It is urged that even though the judgment had become dormant in Jefferson county it was revived so far as the property herein was concerned for the reason that the judgment became a lien by the filing of a certificate of judgment with the office of the clerk of courts of Belmont county. In this we cannot concur. First of all the statutes in question must be construed in pari materia. Certainly the Legislature did not intend, nor do we construe this statute to give a creditor a greater advantage in a county other than the one in which the judgment was rendered, and it is our view that in order to toll the running of the statute, which provides that a judgment shall become dormant in five years, under ihe provisions of Section 11663, General Code, steps must be taken to make such judgment a lien in a foreign county prior to its becoming dormant. The. filing of the certificate in Belmont county did not and could not revive the judgment, which had already become dormant in Jefferson county prior to the certification of the same to Belmont county. The Legislature has made provisions for revival of dormant judgments, 'which procedure in our judgment is exclusive.

It has been further urged that Section 11663, General Code, is a statute of limitations, and that same must be plead before advantage could be taken. While we concede that where the statute of limitations is involved, if not plead it is waived; however, we do not consider Section 11663, General Code, as a statute of limitations. Certainly if more than five years had elapsed under the statute the judgment was dormant and no valid execution could be issued thereon while the judgment remained dormant. The purpose of Section 11663, G-eneral Code, is to clear real estate of liens within what has been construed by the Legislature as a reasonable time for a judgment to remain a lien on real estate. To this effect see Knickerbocker v. Sharfenaker, 29 Ohio Law Abs., 309.

We think the court was right in the conclusion reached.

The judgment is affirmed.

Judgment affirmed.

Phillips and Nichols, JJ., concur.


author: Hornbeck, J.

text:
    Scott et al., Appellees, v. Snyder, Appellant.

      (No. 1668
    Decided June 19, 1943.)

      Messrs. Thomas, Hyers, Leyland & Stewart, for appellees.
    . Mr. E. E. Duncan and Mr. Mason Douglass, for appellant.
   Hornbeck, J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas permanently enjoining the defendant from proceeding with the construction of any structure upon, or from exercising private control or enjoying private possession of Lot No. 1 on the Salem Heights plat, Harrison township, Montgomery county, Ohio. The appeal requires the consideration de novo of the case.

The issue is whether the plaintiffs, owners of lots in the Salem Heights plat and representative of the public, have established the common-law7 dedication of Lot No. 1 in such plat known as “Children’s Playground.” A record consisting of about 400 pages of testimony, together with exhibits, discloses the factual disputes between the parties as to both elements of common-law dedication, namely, the intention of the dedicator to make dedication of the Children’s Playground and the acceptance of such dedication by the public.

The facts develop that on July 14, 1908, the C. A. Wirshing Company, a real estate corporation, duly recorded a plat known as the Salem Heights plat in the office of the recorder of Montgomery county, Ohio. The plat delineated some 400 lots, together with streets and alleys which were duly dedicated. As a part of such plat there was shown a piece of land approximately 250 by 390 feet. There was no specific statutory dedication of this parcel, Lot No. 1, designated “Children’s Playground.” Succeeding the recording of the plat of the subdivision, the C. A. Wirshing Company promoted the sale of the lots and, as a part of the selling campaign, had struck and circulated folders, dodgers and other printed matter upon which was carried the plat of the subdivision, with numbered lots, streets and alleys, showing thereon the Children’s Playground as a part of the subdivision. It also appears and the testimony is undisputed that C. A. Wirshing, the moving spirit in the project, told prospective purchasers of lots and authorized his representatives to state, that the Children’s Playground was a part of the subdivision intended to be used for all time for the purposes of a children’s playground. The sale of the lots was not completed rapidly and for a number of years there was a hiatus in the development of the subdivision.

In 1924 the defendant, Sherwood P. Snyder, purchased the unsold lots in the subdivision, some 116 lots, together with Lot No. 1. Mr. Snyder testified that the consideration for Lot No. 1 was $3,200 and it, also, appears that he has paid certain back taxes. So that, at the time of the trial, he estimated that he had upwards of $5,000 invested in this lot.

This is a substantial investment but the defendant’s rights, except those that may have resulted since his acquisition of the property, rise no higher than those of the grantor, the C. A. Wirshing Company.

It will serve no good purpose to discuss in detail the testimony of the numerous witnesses who appeared for the respective parties in the case, nor to cite authorities'as to the law which is not in dispute. We could be well content to accept the opinion of Judge Hodapp which we have before us as it is complete in the discussion of the law and factual developments.

There are but two questions presented, namely, the intention of the C. A. Wirshing Company as respects the dedication of Lot No. 1, known'as the Children’s Playground, and, if dedication be found, whether user has been established on the part of the public.

We find no reasonable conclusion to be drawn from the facts appearing other than, at the time the C. A. Wirshing Company filed its plat of the Salem Heights subdivision, it then and there intended to dedicate Lot No. 1 as a Children’s Playground, as a part of the subdivision, to be used particularly by those purchasing lots in the subdivision and, also, by the general public. This purpose and intention were clearly manifested by the delineation by lines, lot number, and by the term ‘ ‘ Children ’s Playground. ’ ’ The subsequent conduct and acts on the part of the company and its representatives, were confirmatory of the intention manifested by the filing of ■ the plat for recordation. It is obvious that, undenied and unexplained and without some reservation, the purpose to be inferred from the filing of the plat, with Lot No. 1 characterized as “Children’s Playground,” was that it was so intended to be used and was so dedicated. The argument is that because the Children’s Playground was not formally dedicated by express language, it is therefore to be determined that there was a purpose not to dedicate the playground for the purpose indicated. This same argument was advanced in Thompson v. Columbus, 30 O. D. (N. P.), 196, 198, 22 N. P. (N.S.), 33, 36, wherein the court cited Price v. Plainfield, 40 N. J. Law, 608, and Maywood Co. v. Village of Maywood, 118 Ill., 61, 6 N. E., 866, to the effect that “the word ‘park’ written upon a block upon a map of city property indicates a public use; and conveyances made by the owner of the platted land by reference to such map operate conclusively as a dedication of the block.”

In the instant case the transfers of lots within the subdivision were made with reference to the plat. Such procedure has without exception been held to amount .to dedication to public use. 13 Cyc., 455.

It is urged that the C. A. Wirshing Company exercised dominion over the playground at the time of the dedication of the plat until the transfer to the defendant and as proof of this fact the payment of taxes is established. This one act of dominion appears. However, it is universally held that the levying of taxes or the paying of same is not conclusive but evidentiary of the purpose of the owner of the fee. It is likewise true that this is the only act of dominion exercised by the defendant. It does not appear at any time that any use, other than the beginning of building operations, was attempted by either owner of the lot inconsistent with its full use for the purpose for which dedicated to the public.

It is also urged that Lot No. 1 was and is not suitable for a children’s playground. This is a matter of opinion. The topography of the land is the same now as it was when the C. A. Wirshing Company dedicated it for the purpose of a children’s playground. Many better places for organized play no doubt could have been chosen, but the dedicator made selection, maybe because of its terrain. That the ground is precipitous, in places somewhat hazardous, may be determined.not only from the record and probably from an inspection of the land but the plat, made an exhibit in the record, is specific in showing b^r numerous markings that the playground was hilly. In fact, the characters employed are those commonly used on maps to indicate mountainous country. It is apparent that the lot is not suitable for organized play such as would be carried on upon level ground because there is very little of level space upon the lot.

The second question, namely, that of user, is not demonstrated as clearly as is the intention of the dedicator to dedicate the lot to public use. However, it must be observed that this subdivision, when platted, was outside of the city limits of Dayton in open country, sparsely settled. This did not affect the right of the C. A. Wirshing Company to effect dedication of the playground. Iowa Loan & Trust Co. v. Board of Supervisors, 187 Ia., 160, 174 N. W., 97, 99, 5 A. L. R.,. 1532. It was the purpose of the C. A. Wirshing Company to develop this land and by stimulation of sale of lots and the erection of dwellings upon them to buildi up a considerable population upon the subdivision. At. this juncture, it might be said that it is probable that the C. A. Wirshing Company did change its mind as-to a purpose to dedicate years after, the dedication was-completed. The difficulty with this change of purpose is that it came too late and after rights had vested.

The user of the playground was such as was proper upon a piece of wild, woody land in which there were precipitous places and some ravines.

The testimony of some twenty witnesses on behalf of the plaintiffs is convincing, that the use of the playground was quite general in the light of the number of persons who could be expected to so use it. Many testified to having throughout the years frequented the' ground for the purposes of play and they, also, named and designated groups of children who did likewise.. This affirmative testimony is more satisfactory than the negative testimony of the witnesses on behalf of the defense, who either said that they themselves had not used the ground for play, or, that they did not understand that it was a public playground.

We have noted that no public authority, either the township trustees or the county commissioners, who would normally supervise this playground, has manifested any purpose to exercise control over it or to insist upon any right of the public to use it. This has been somewhat disconcerting as affects the future use and maintenance of the playground but such action is not at all determinative of the question whether the ground has been accepted by the public.

“An offer of dedication, to bind the dedicator, need not be accepted by the city or county or other public authorities, but may be accepted by the general public. To deny this would be to deny the whole doctrine of dedication.” 26 Corpus Juris Secundum, 99.

The proof established by the plaintiffs in this case appears under all the circumstances to require this ■court, as did the Common Pleas Court, to hold that the user by the public has been established.

Judgment is rendered for the appellees as prayed.

Judgment for appellees.

Barnes, P. J., and Geiger, J., concur.


author: Matthews, J.

text:
    The Central Trust Co., Trustee, Appellee, v. McCarthy, Sr., Exr., Appellant; Hunt et al., Appellees.

      (No. 6318
    Decided November 22, 1943.)

      Messrs. Paxton & Seasongood and Mr. Robert P. Goldman, for appellee The Central Trust Company.

      Messrs. Harmon, Colston, Goldsmith S Hoadly, for appellant Peter J. McCarthy, Sr.

      Mr. Ralph E. Clark,' for appellee The Council of Churches of Greater Cincinnati.

      Mr. Evans L. DeCamp, for appellee Watson Smith.

      Mr. Charles H. Stephens, for appellee Lydia S. Hunt.
   Matthews, J.

This is an action for a declaratory judgment determining the legal status of and construing the trust instrument under which the plaintiff acts. The executor of the estate of the settlor, while denying the-validity of the trust instrument and the legal effect of its provisions, nevertheless joins in the prayer for a declaration on the subject. All the other defendants in one way or another support the position of the plaintiff. The case comes to this court on appeal on questions of law.

On June 6,1932, Lncy A. Smith, owning an undivided 30/96ths, and seven other cotenants, conveyed to The Central Trust Company by general warranty deed the absolute fee simple title to nineteen parcels of real estate. This deed was duly recorded, thereby vesting in The Central Trust Company the complete title of record. On the same day, a trust agreement was entered into between the grantee and the grantors, setting forth the terms under which the grantee held the property and the rights of the grantors as beneficiaries of the trust.

The trust,agreement provided that the trustee should collect the rentals and other income and pay the net income to the grantors quarterly in proportion to their respective interests during their respective lives, and in the event any part should be sold or exchanged the cash and readily marketable securities should be distributed. Provision was made for making reports and for withholding enough to pay the expenses of a prudent management and preservation of the property.

By paragraph 4 it was provided that:

“On the death of any grantor, the payments, transfers and conveyances that would have been made to said grantor, had he or she been alive, provided said grantor has not previously transferred his interest therein, shall be made to the person or persons named to receive the same by valid last will and testament or codicil thereto of the deceased grantor, and in default thereof to the residuary devisee or devisees named in the valid last will and testament or codicil thereto of said deceased grantor, and in default thereof to the heirs at law of said deceased grantor, determined as of the time of his or her death according to the statutes of the state of Ohio then in force.”

And further provision was made for intestacy, as follows:

“If no valid last will or testament is offered for probate in a court having jurisdiction at the residence of the grantor within six (6) months after the death of the grantor, or within one (1) month after a previous will has been finally adjudicated invalid, then the trustee shall be entitled to distribute to the heirs of such decedent. ’ ’

By subsequent paragraphs, it was provided that:

“The interest of any devisee, residuary devisee and/or heir shall be a vested interest from the time of the death of the grantor under whom he claims.

‘ ‘ This trust shall terminate either when all the property in trust has been reduced to cash and/or readily marketable securities and the cash and/or readily marketable securities distributed to the persons entitled thereto, or at the expiration of twenty-one (21) years from the date of the death of the last survivor of the grantors, whichever event occurs first. This trust may be altered, modified or revoked by directions in writing delivered to the trustee and signed by all of the persons at that time the owners of equitable interests in the trust, and guardians shall have the right to sign such instruments for their respective wards; but no alteration or modification of this trust shall be effective unless and until accepted in wilting by the trustee. Whatever property is in the hands of the trustee on the date of termination of the trust shall be distributed by appropriate payment, assignment, conveyance or other method of transfer. to the persons entitled thereto.

“The entire equitable interest of any grantor or other person in the trust property, or any part thereof, may be transferred by the owner thereof by appropriate instrument executed with the formality required for the transfer of any interest in real estate in Ohio, and such transfer shall, if so intended, be free of the contingent interest of grantor’s devisees or heirs, and any transferee shall have the power similarly to convey a fee simple equitable interest.

“The trustee shall have full and continuing power and authority, in its discretion, to insure, improve, sell, transfer, exchange, convey, with or without warranty; to lease, at will, perpetually or for a term of years, with or without privilege of purchase; to mortgage or otherwise encumber; the whole or any part of the property, real or personal, at any time held in trust, all without notice, appraisement, valuation or court order, at public or private sale, for such price or prices and upon such terms and conditions as to payment or otherwise as to it may seem advisable; and in connection with exchanges it may assume mortgages or other liens or encumbrances, as trustee. It shall also have full and continuing power and authority to manage the real estate and improvements thereon as it sees fit, to make alterations, repairs and improvements thereon, to raze and demolish buildings or other improvements, or any part thereof, and in all other respects to deal with said property as though it were the sole owner thereof.

‘ ‘ The trustee shall have the exclusive right to manage and control the trust estate as it may deem for the best interests of the grantors or their transferees, free from all control by the grantors or their transferees, as fully and to the same extent as if the trustee were the sole owner therof, and shall not be subject to any obligations to the grantors or their transferees other than such as are expressly assumed hereunder or are imposed upon it by law.”

The grantors for themselves and their transferees waived all right to partition.

There are many other provisions whereby the trustee is given full power and protection in the exercise of such power, and for compensation for its services.

The trustee proceeded to administer such trust, collected the rent, managed the property, sold some tracts and otherwise exercised the power conferred without let or hindrance during the lifetime of Lucy A. Smith. She died on August 12, 1938, leaving a will which was duly probated on September 3, 1938, and Peter J. McCarthy, Sr., and another who has since died, were appointed executors. The other grantors are still living.

By her will, Lucy A. Smith provided that:

“I give, devise and bequeath to Mr. Peter J. McCarthy, Sr., my friend and legal adviser together with some one the Lincoln National Bank of Cincinnati, Ohio may appoint, to take possession of my home, 3054 Lischer ave., Westwood and all my property both real and personal, and I now hereby appoint them both as executors of my estate, without bond, empowering them to deal with everything, both real and personal in which I am interested, with full power, and authority to sell any, and all real estate according to their best judgment. ’ ’

She then gave specific articles of personal property located in her home on Lischer avenue, Cincinnati, Ohio, to various friends and relatives. These were followed by many bequests of money, mostly to relatives, totaling $86,300, and these specific bequests were followed by a residuary provision in this language: “I hereby authorize and empower my executors herein named and direct that they distribute all the rest, residue and remainder of my estate, of every kind and description, as follows

“The Mt. Auburn Baptist Church, Auburn and Gil-man avenues, Mt. Auburn, Cincinnati, Ohio.

“The Federation of Churches, Cincinnati, Ohio.

“The Community Chest, Cincinnati, Ohio.

“The Cincinnati Automobile Club for Orphans and Childrens Outings.

“The Children’s Home, 909 Plum street, Cincinnati, Ohio through Dr. J. B. Ascham.

‘ ‘ The Ohio Humane Society, 312 W. 9th street, Cincinnati, Ohio.”

All the debts of Lucy A. Smith and all the specific legacies have been paid. The residuary legatees under the will of Lucy A. Smith are the beneficial owners of the undivided 30/96ths of the estate of which the plaintiff is trustee. The sale of her interest is not necessary to the administration of her estate.

While Lucy A. Smith received her share of the rents from this trust property, she made no mention of the trust in her will. She did create a trust as to one specific legacy.

After Lucy A. Smith’s death, all her heirs joined in a quitclaim deed of all their right, title, and interest as heirs of Lucy A. Smith in the trust estate to the residuary legatees named in her will.

The executor contests the right of the plaintiff to continue to administer this trust and treat the residuary beneficiaries under Lucy A. Smith’s will as the cestuis que trustent on these grounds:

(1) That the trust is testamentary in character and for that reason did not divest Lucy A. Smith of title in her lifetime, and as it was not executed with the formalities of a will, it could have no effect upon the devolution of the title upon her deáth.

(2) That the trust agreement created an agency only.

(3) That by the terms of Lucy A. Smith’s will, her executor is made the legatee and devisee of the legal title of all the testatrix’s property in trust for the purposes stated in her will and that, therefore, whatever is acquired by any one on the death of Lucy A. Smith must be through her executor acting as trustee to carry out her testamentary intent.

The Common Pleas Court held that the plaintiff was the holder of the legal title, that the trust agreement was valid in all respects, that the residuary legatees named in the will of Lucy A. Smith were the beneficial owners of the interest of Lucy A. Smith in the trust estate and entitled to receive the rents and proceeds of its sale directly from the plaintiff according to the terms of the trust agreement.

The defendant Peter J. McCarthy, Sr., as executor appealed on questions of law. No appeal was taken by any other party.

The appeal came on for hearing originally upon motions to dismiss the appeal on the ground that as to the executor the order was not appealable, or, in the alternative, to affirm the judgment on the ground that the declaration of rights could not be prejudicial to the executor. After hearing arguments, we postponed ruling upon the motions and set the case for hearing upon the merits of the appeal. That hearing has taken place, and the cause is now submitted upon the motions, and, if they are overruled, then upon the merits.

The motion to dismiss is overruled. Regardless of the merits of the executor’s contention, he has invoked the appellate jurisdiction of this court to review the action of the trial court and determine whether the record discloses substantial error to his prejudice. If no error appears, or if it does, it is found not to be prejudicial to any right of the executor, the judgment will be affirmed. But that is no basis for the dismissal of the appeal.

The alternative motion to affirm raises the same issues that are always presented upon an exercise of appellate jurisdiction to review the record and they are (1st) whether error is apparent upon the record, and (2nd) whether such error, if any, is substantial to the prejudice of the appellant. Those are the issues raised by this appeal, and, having studied this record, we affirm the judgment, both, because there is no error and for the further reason that the error asserted by the appellant, if found to exist, would not be prejudicial. We shall set forth briefly our reason for this conclusion.

The executor attacks the validity of the trust agreement in toto on the ground that it is an attempt to dispose of property by will without complying with the statutory formality. It seems to us sufficient answer to this to point out that there is no attempt whatsoever in this instrument to create an estate to take effect upon death. It recognizes the settlors as the owners of the entire equitable title and in express terms provides that each settlor may transfer his or her respective equitable interests, either during life or by will. The express recognition of the right to transfer by deed or will certainly cannot be construed to be either a deed or a will. The trust agreement created the equitable estate in the settlors and no one else. The individual share remains in each settlor, unless and until he or she transfers it by conveyance during life, or by will, or it passes by operation of law. In this case any transfer of the title of the testatrix passes by her will and not by force of the trust agreement. So far as we know there is no claim to the contrary.

So we hold that this trust agreement lacks the essential element of a will, to wit, a provision to pass title upon the death of the owner, and lacking such, cannot be denounced as an unsuccessful attempt to make a will.

It is next urged that the relation created between the plaintiff and the settlors by these instruments is that of agent and principal, and that the agency terminated upon the death of the principal.

This contention ignores the fact that the absolute legal title was conveyed to the plaintiff by a duly executed and recorded quitclaim deed. That title remained in the grantee, notwithstanding the grantor’s death.

Counsel rely on Worthington v. Redkey, 86 Ohio St., 128, 99 N. E., 211; Cleveland Trust Co. v. White, 134 Ohio St., 1, 15 N. E. (2d), 627, 118 A. L. R., 475; and Central Trust Co. v. Watt, 139 Ohio St., 50, 38 N. E. (2d), 185. They do not support their position. Worthington v. Redkey, supra, involved a transaction antedating the passage of the amendment to Section 8617, General Code, whereby it was provided that the creator of a trust could reserve any power to himself which he might lawfully grant to another, including the power to alter, amend, or revoke the trust, and that such a trust would be valid as to all persons. By virtue of this statute, the trust involved in Union Trust Co. v. Hawkins, 121 Ohio St., 159, 167 N. E., 389, 73 A. L. R., 190, was sustained. As the trust agreement here under consideration was executed after the amendment to Section 8617, General Code, it, i. e., the amendment, and Union Trust Co. v. Hawkins, supra, construing it, are directly applicable. Furthermore, there is not in the instrument here under consideration any reservation of the right or power to any individual acting separately to revoke. It could only be done by the joint action of all. Lucy A. Smith could not revoke as to her individual interest because she had not reserved such power, but also because she had agreed upon consideration with the other settlors not to do so.

In Cleveland Trust Co. v. White, supra, also, the court was considering a trust instrument that antedated the amendment to Section 8617, General Code. The court held that this trust was valid. The case is cited for the general statement that: “No valid trust is established when the settlor reserves powers which in their cumulative effect amount to ownership of the trust estate with such control over the administrative functions of the trustee as to make of him simply the settlor’s agent or representative.” An examination of the powers reserved by Lucy A. Smith is sufficient to show that their cumulative effect falls far short of absolute ownership. As already pointed out, she did not have unlimited power of revocation and while the trust existed she had no control over the management,' and she had no power to compel partition.

In Central Trust Co. v. Watt, supra, the trust was sustained and we find nothing in any of the opinions that would invalidate this trust. The fact is that the discussion in all those cases resulted from reliance upon the trust instrument to direct the devolution of the title upon the death of the settlor. There, is no such issue in this case. All claimants here rely upon the will of Lucy A. Smith as the source of their title and not at all upon the trust instrument. The deed and the trust agreement had the effect of splitting the title into its legal and equitable parts and that is all. And in the presence of the recorded deed it cannot be debated that the plaintiff has the legal title and in view of the agreement it is not, and cannot be, disputed that it holds in trust. But neither nor both instruments cast any title upon any of the defendants. It is the will of Lucy A. Smith that does that.

So we hold that the plaintiff is a trustee of the legal title for the uses and purposes set forth in the trust agreement in favor of Lucy A. Smith and those deriving title by virtue of her will. Let us look at her will.

It is claimed that the will vests title in the executors. A reading of the will is sufficient to show that that claim is of doubtful validity. However, we assume, without deciding, that the executor has all the title that the testatrix was capable of conveying. Now what was that title?

It was not the legal title, because that was vested in the plaintiff. It could only be a sub-trust of the equit-' able title that she created by her will. 1 Scott on Trusts, 456 et seq., Section 83. And for what purpose would he hold this equitable title? That question is answered by the will itself to be for the sole purpose of distributing it to the residuary beneficiaries. He would hold it in the same way any trustee holds property after all the purposes of the trust have been executed, and that is, to pay or deliver the trust property to those entitled.

Even when the trust period has not expired, the beneficiaries, being sui juris, may terminate the trust when the active duties of the trustee have been performed and the purpose of the trust fulfilled. In 3 Scott on Trusts, 1833 et seq., Section 337, it is said:

“Although the time designated by the terms of the trust for its termination has not arrived, the beneficiaries, if they all consent and are sui juris, can compel its termination if its continuance is not necessary to carry out a material purpose for which it was created.”

And, at page 1835:

“Where all of the beneficiaries wish to terminate it, the trust will not be continued merely for the purpose of enabling the trustee to earn his compensation.”

See, also, 26 R. C. L., 1378; Robbins v. Smith, 72 Ohio St., 1, at p. 19, 73 N. E., 1051.

And, assuming that the executor had title, with an express direction to convert and distribute, he would have no vested right to do that against the wishes of the residuary legatees.

In 3 Scott on Trusts, 1896, Section 346, the author says:

“Where the will directs that the property be sold and the proceeds distributed among several persons, they may, if they are all sui juris and if they all consent, elect to take the property in specie.”

And this rule, in substance, is found in Section 10509-183, General Code, which authorizes distribution in kind by an executor to beneficiaries willing to receive in kind.

We are of the opinion that whatever the nature of the trust, if any, of which the executor is the trustee, whether it is the trust imposed by law upon a personal representative or a more enlarged trust imposed by will, these residuary legatees had, and have the right to terminate it and elect to take the property in specie.

However, even assuming that the trial court erred, we are of the opinion that the executor was not prejudiced thereby.

There are instances, of course, when it is the duty of an executor or other trustee to appeal from an adverse decision in order to preserve the trust estate for the beneficiaries, but such instances bear no resemblance to a case of this sort to which all the beneficiaries are parties with full opportunity to appeal but have not appealed or have not requested the executor to do so. On the contrary, they appear as appellees to resist the executor’s contentions as contrary to. their wishes and interests. No substantial prejudice to the estate or the purpose of the settlor is manifest under such circumstances. This conclusion is supported by our decisions in First National Bank v. Rawson, 54 Ohio App., 285, 7 N. E. (2d), 6, and In re Estate of Hoffman, 68 Ohio App., 47, 37 N. E. (2d), 646.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Stevens, P. J.

text:
    Slapp, Appellee and Cross-Appellant, v. Slapp, Appellant and Cross-Appellee.
    (No. 3560
    Decided April 26, 1943.)

      Messrs. Bailey & Bailey, for appellee and cross-appellant.

      Mr. Seott A. Belden and Mr. Robert Guinther, for appellant and cross-appellee.
   Stevens, P. J.

This is an appeal by the defendant in the trial court on questions of law. Plaintiff therein has also filed a cross-appeal.

On November 2, 1939, plaintiff, Ruth E. Slapp, filed in the Court of Common Pleas her petition for permanent and temporary alimony against the defendant, Maurice P. Slapp. Summons and a copy of the petition were duly served upon the defendant. On November 6, 1939, the court, after hearing, ordered temporary alimony in the amount of $152.67 to be paid monthly by defendant to plaintiff, and those payments were made by defendant.

On June 11, 1942, Rutli Slapp filed an amended petition, wherein she sought not only alimony but also a divorce from defendant. Defendant filed a motion to strike the amended petition from the files for want of jurisdiction in the court to grant the relief sought, which motion, after hearing, was overruled.

On June 20, 1942, defendant answered, setting out that on April 22, 1942, he had filed an action in the District Court at Reno, Nevada, wherein he sought a divorce from the plaintiff. Service by publication was secured, and a copy of the petition and a summons were also handed to Mrs. Slapp in Akron. She entered no appearance in the Nevada case.

On May 25, 1942, said District Court at Reno, Nevada, granted to Maurice F. Slapp an absolute divorce, but expressly found that there was no community property belonging to plaintiff and defendant subject to the order of said court in Nevada, and did not attempt to make any order as to the property of the parties.

Maurice F. Slapp remarried on May 26, 1942, at Reno, Nevada, and within a short time returned to Akron, Ohio.

.■ Plaintiff replied, alleging that the Nevada divorce was null and void because defendant never became in good faith a resident of Nevada, and for the further reason that the decree of divorce was fraudulently obtained.

Upon hearing, the trial court found that the divorce decree procured by the defendant in Nevada was null and void; that plaintiff was entitled to a divorce and alimony, find entered judgment upon its finding.

Two errors are assigned by the appellant:

1. That the court' erred in overruling defendant’s motion to strike the amended petition from the files (a) because of failure of plaintiff to make a prepayment of costs and (b) when it was made to appear that a divorce had already been granted by the Nevada court.

2. That the court erred in making an equitable division of the property.

On the question of a deposit for costs, the record discloses that at the time plaintiff’s petition for alimony was filed, she made the required cost deposit of $15.35 with the clerk of courts.

It is urged, however, that, when she amended her petition so as to include a prayer for divorce, she was required to make an additional cost deposit; and that, having failed to make any additional deposit, the trial court was without jurisdiction to entertain the petition for divorce and should have dismissed the same upon defendant’s motion therefor, i Section 11981, General Code, provides for the prepayment of costs in divorce or alimony actions as follows :

“No clerk of a court of common pleas shall receive or file a petition for divorce or alimony until the party named as plaintiff therein, or some one on his or her behalf, makes prepayment or deposit with the clerk of such an amount as will cover the costs likely to accrue in the action exclusive of attorney fee, or gives such security for the costs as in the judgment of the clerk is satisfactory; but when a plaintiff makes affidavit of inability either to prepay or give security for costs, the clerk shall receive and file the petition. Such affidavit shall be filed with it, and treated as are similar papers in such cases.”

The plaintiff having made the required and customary deposit for costs at the time of filing her action for alimony, there was no statutory requirement for an additional deposit when she amended her petition so as to include a prayer for divorce. Had she originally filed a divorce and alimony action, the deposit made would have sufficed to conform to the statute. The accomplishment of that result by amendment did not change the situation. No further deposit for costs was necessary under the statute. We find no error in the court’s ruling on the subject of costs.

As to the court’s ruling with reference to dismissing the amended petition praying for divorce when it was made to appear that defendant had already obtained a decree of divorce in Nevada, a recent decision of the Supreme Court of the United States changes the credit to be attached to such a decree and makes necessary a reversal of that part of the trial court’s judgment granting a divorce to plaintiff.

The law on the question of the faith and credit to be given to a decree of divorce granted in a state other than the place of the matrimonial domicile was established by the Supreme Court of the United States in the case of Haddock v. Haddock, 201 U. S., 562, 50 L. Ed., 867, 26 S. Ct., 525, and the rule therein announced continued in force from 1906 up to December 21, 1942. On this latter date the case of Williams v. North Carolina, 317 U. S., 287, 87 L. Ed., 189, 63 S. Ct., 207, 143 A. L. R., 1273, was decided by the Supreme Court of the United States, and by that decision the Haddock case, supra, was expressly overruled. The sixth paragraph of the syllabus of Williams v. North Carolina is as follows:

“Under the full faith and credit clause and the act of May 26, 1790, where a decree of divorce, granted by a state to one who is at the time bona fide domiciled therein, is rendered in a proceeding complying with due process, such decree, if valid under the laws of that state, is binding upon the courts of other states, including the state in which the marriage was performed, and where the other party to the marriage was still domiciled when the divorce was decreed. Haddock v. Haddock, 201 U. S., 562, overruled.”

The record in the instant case shows, by the express finding of the Nevada court, that the defendant acquired a bona fide domicile in that state in accordance with thé laws of Nevada. Hence, under the pronouncement by the Supreme Court of the United States, the judgment of the Nevada court was entitled to full faith and credit in the courts of Ohio, in conformity to the requirement of Section 1, Article IV, U. S. Constitution. It was accordingly the duty of the trial court in this case to deny the prayer of plaintiff’s petition for divorce, when it was made to appear that defendant had procured a decree of divorce, valid under the laws of the state of Nevada; and in refusing so to do, the trial court erred.

The next claim of .appellant is that the court erred in making an equitable division of the property of the parties. This claim, of course, has to do with the question of the authority of the court to grant alimony to the plaintiff.

Alimony for a wife is of two" kinds: That which is allowed under Sections 11997 and 11998, General Code, in pursuance of an action for alimony alone; and that which is allowed under Sections 11990 and 11991, General Code, as an incident to the granting of a divorce to the wife because of the husband’s aggression.

The record in the instant case contains evidence which, had it not been for the procurement by the defendant of the Nevada decree of divorce, would have required the trial court to grant a divorce to the plaintiff, and would have warranted the trial court in making an allowance of alimony as an incident to the granting of that divorce because of the husband’s aggression.

The case which was tried was one for divorce and alimony — not an action for alimony alone. Had the action been- for alimony alone, the court, under the pronouncement of the Supreme Court of Ohio in Durham v. Durham, 104 Ohio St., 7, 135 N. E., 280, would have been limited “to making an award as alimony for her maintenance and support during separation,” and would not have been authorized to make an equitable division of the husband’s property. Inasmuch, however, as the action was one for divorce and alimony, wherein it appeared that the defendant husband had procured a divorce in another state without service other than by publication, the rule announced by the Supreme Court of Ohio in Doerr v. Forsythe, Admx., 50 Ohio St., 726, 35 N. E., 1055, 40 Am. St. Rep., 703, with reference to the property of the parties, pertains. That rule is as follows:

“A divorce obtained by a husband from his wife in another state, without service other than by publication, and she being at the time a citizen of and residing in this state, does not in any way affect her property rights in this state.”

While the trial court was foreclosed from granting a divorce to the wife when it was made, to appear that the husband had already procured a divorce in Nevada, yet, the evidence being such that the trial court would have been warranted in granting the wife a divorce for the husband’s aggression but for the Nevada decree, we hold that the court was empowered, under the appropriate statutes (Sections 11990 and 11991, General Code) to allow the wife such alimony out of her husband’s property “as it deems reasonable.”

Were the action confined to an allowance under Section 11998, General Code, the decision of the Supreme Court in the Durham case, supra, construing the meaning of that statute, would have necessarily limited the award to one as alimony for the maintenance and support of the wife during separation; but in this case the separation between plaintiff and- defendant was permanently terminated by the defendant’s activity in procuring a divorce from the plaintiff, and if the trial court were limited to an award of alimony for the maintenance and support of the wife during separation, the court would have been foreclosed from making any allowance to the wife, because there was no longer a separation. The marriage’ status no longer existed, because of the granting of the Nevada divorce decree. Certainly such an unconscionable and inequitable result could not have been intended by the decision in the Durham case, supra.

We hold that, where a husband procured a divorce in another state upon constructive service, in a case where the foreign court found that it had jurisdiction, the wife not entering her appearance in said foreign jurisdiction, such foreign divorce, when proved, precludes the granting of a divorce to the wife by a court in Ohio upon her petition therefor. However, if the evidence is such as would have warranted the Ohio court in granting a divorce to the wife because of the husband’s aggression, the court has authority to deal with the property of the parties as though it had granted a divorce to the wife because of the husband’s aggression, and, in so doing, may divide such property between the parties, if that be deemed reasonable.

In. Stephenson v. Stephenson, 54 Ohio App., 239, 6 N. E. (2d), 1005, the court held that, even after the granting of a domestic decree to the wife upon constructive service, the right of the wife to alimony continues until adjudication. That case, of necessity, dealt with the subject of alimony as an incident to the granting of a divorce because of the husband’s aggression, and did not treat of an action for alimony only, because there, the divorce having already been granted to the wife for the husband’s aggression, the separation between the parties was terminated and the marriage status destroyed, and the only, power which the court could then have would be that of granting to the wife alimony as an incident to the divorce.

See, also, Wick v. Wick, 58 Ohio App., 72, 15 N. E. (2d), 780.

The rale announced by the foregoing cases need be amplified but little to provide that, after the granting of a foreign divorce decree to a husband, the right of the wife to alimony as an incident to a divorce because of the husband’s aggression remains until adjudicated, and that, upon proper evidentiary showing, the court may award such alimony out of the husband’s property “as it deems reasonable”' — even to the extent of a division of the property of the parties, although it is precluded from granting a divorce to the wife by reason of the previously procured foreign divorce granted to the husband.

Under the circumstances presented by this record, the severance of the marital tie by the husband through the procurement of a foreign divorce should be considered as an aggression on his part, for the .purpose of allowing alimony to the wife.’

It is next claimed that the court erred in its order directing that certain stocks in the Akron Lamp Company and Radiant Products, Inc., be divided or sold, by reason of said stocks having been pledged to others under what is known as a’junior executive’s agreement.

We have examined that agreement, and find that the stocks concerning which complaint is made were not pledged, but that an option upon said stocks had been granted, said option being conditioned upon the termination of the owner’s connection with the Akron Lamp Company; otherwise the option could not be exercised by the optionee.

We find no merit in the appellant’s contention in this respect,-nor do we find the claim of the appellant that the amount of alimony awarded was too large to be borne out by the evidence.

We are of the opinion that, so far as the award of alimony is concerned, the judgment of the trial court should be affirmed; that, as to the granting of a divorce to the plaintiff below, that part of said judgment must be reversed.

We find no merit in the claims of error set out in appellee’s cross-appeal.

The judgment is reversed in part and affirmed in part, as herein indicated.

Judgment accordingly.

Washburn and Doyle, JJ., concur.


author: Doyle, J.

text:
    Glen, Appellee, v. Aetna Life Ins. Co. et al.; Read, Admr., Appellant.

      (No. 3552
    Decided March 11, 1943.)

      Messrs. Hutchison & Firestone, for appellee.

      Mr. Ernest W. Teoclosio, for appellant.
   Doyle, J.

The plaintiff in this action claims to be the beneficiary in a certain industrial group plan life insurance policy issued by the Aetna Life Insurance Company under a contract with The Goodyear Tire & Rubber Company on the life of her deceased sister, Jeanette F. Metzger, and seeks the proceeds therefrom. The insurance company has interpleaded; and, having paid the money into court, asks to be relieved from any further liability. The administrator d.b.n. w.w.a. of the estate of the insured decedent, Jeanette F. Metzger; the administrator w.w.a. of the estate of the deceased husband of Jeanette F. Metzger, Donald-C. Metzger; and six sisters of Jeanette F. Metzger, who, together with the plaintiff, another sister, are her sole surviving heirs and next of kin, through their pleadings likewise sought the proceeds of the policy.

The case was tried in the Court of Common Pleas of Summit county, without the intervention of a jury, upon the pleadings, and upon an agreement on some ultimate facts and some evidentiary facts; and at the conclusion thereof judgment was entered in favor of the plaintiff. From this judgment appeal is prosecuted to this court by the administrator d.b.n. of the estate of Jeanette F. Metzger on questions of law. None of the other parties have appealed.

The record before us consists of the original papers, a transcript of the record and journal entries, and a bill of exceptions in which has been incorporated the said agreed statement of the evidence and ultimate facts upon which the matter was submitted to the trial court.

No motion for a new trial was filed.

It is asserted that this court is precluded from looking to the agreed statements in the bill of exceptions for the reason that a motion for a new trial was not filed. On the contrary it is stated that such a motion is not necessary when a case is presented under the circumstances depicted herein — i. e., under “an agreed statement of facts.”

A reviewing court cannot reverse a judgment on the ground that it is against the weight of the evidence unless there has been filed, within the provisions of the statute (Section 11578, General Code), a motion for a new trial. However, in cases submitted to the trial court under an agreement on all of the ultimate facts, a motion for a new trial is unnecessary because there is no dispute as to the facts and no necessity to re-examine issues of fact as that term is used in the Code. In such cases there is no evidence to be weighed or considered, and all that is necessary is for the court to apply the law to the conceded facts. In re Estate of Hinton, 64 Ohio St., 485, 60 N. E., 621.

And this same rule applies where evidentiary facts are admitted which are of such force that reasonable minds could conclude only the ultimate fact.

There is, however, a practice extant in which counsel agree or stipulate evidentiary facts, as distinguished from ultimate facts, and submit their cause to the court for determination upon such evidence.

Under such a situation a motion for a new trial is necessary to enable a reviewing court to consider the weight of the evidence, for the case is heard upon evidence from which different conclusions may be drawn, even though the evidence is by the agreement of the parties.

Confusion arises in the practice because the phrase ‘ ‘ agreed statement of facts ’ ’ is usually applied to each type of case, although in the latter type there actually is an agreement as to what the evidence is rather than an agreed statement of facts. The test is whether the agreement contains only the ultimate facts, or evidentiary facts concerning which reasonable minds cannot reach different conclusions. In either of such situations, there is presented only questions of law, and a motion for a new trial is not necessary.

The members of this court are of the opinion that one of the vital issues in the case is the question of the intention of the insured to change the beneficiary in her policy at the time claimed, and that the agreed facts are not ultimate facts on this question but merely evidentiary facts upon which reasonable minds could come to different conclusions; and while there were some ultimate facts stipulated, on the question of intention the facts stipulated were evidentiary only, and, as already stated, such that reasonable minds could reach different conclusions. This being so, a motion for a new trial was necessary to properly present to this .court for determination the weight of the evidence on this issue.

We next come to the question as to whether or not this court can look to the agreed evidence for any purpose whatsoever.

In an early case in this state it was determined:

“2. Where, on error, the record shows no such motion (motion for a new trial), but contains a bill of exceptions embodying all the evidence, and it appears that on the trial evidence was given which, standing alone, warranted the finding, the judgment can not be reversed for error in law on the ground that, considering all the evidence, the finding is against the weight of evidence. To reverse on such ground would not be reviewing the judgment of the court below on a question of law, but on the credibility and weight of the testimony.

“3. * * * error in law, for want of proof, only arises where there is no evidence fairly tending to establish one or more facts, the existence of which is essential to the recovery.” Turner v. Turner, 17 Ohio St., 449, cited with approval in Jacob Laub Baking Co. v. Middleton, 118 Ohio St., 106, at p. 119, 160 N. E., 629.

• These rules, so long ago pronounced, have been applied by the courts of this state to the present time. And from them it may be concluded that, although a Court of Appeals cannot pass on the weight of the evidence in the absence of a motion for a new trial, such a motion is not necessary to determine whether there was any evidence tending to support the judgment. For this limited purpose the record may be examined because there is presented only a question of law; and if the record fails to show any evidence on an issue or issues necessary to support a judgment, such judgment may be reversed as contrary to law. Travelers’ Indemnity Co. v. M. Werk Co., 33 Ohio App., 358, 169 N. E., 584.

The admissions in the pleadings and the agreed facts contained in the bill of exceptions show that Ivan C. Metzger and the insured, Janet (Jeanette) Metzger, were husband and wife; that on May 1, 1941, the husband shot and killed the wife and immediately committed suicide; and that at the time of and prior to her death the wife was an employee of The Goodyear Tire & Rubber Company, and through such employment her life was insured under a group plan of insurance in the Aetna Life Insurance Company. The insurance was evidenced by a certificate, issued jointly by tlie employer and the insurance company, which inter alia contained the name of the insured, the amount of the insurance, the name of the beneficiary, and provisions for the change of beneficiaries and alternate beneficiaries.

Prior to Jeanette Metzger’s marriage to Ivan C. Metzger, the plaintiff, Robina Glen, a sister, was the named beneficiary. After her marriage, she had her husband named as beneficiary in place of her sister, the present plaintiff. Subsequently, on April 7, 1941, she struck out the name of her husband as beneficiary on her certificate of insurance and wrote in the name of her former beneficiary, Robina Glen. On the same date, she wrote a letter to The Goodyear Tire & Rubber Company, her employer, as follows:

“April 7th, 1941.

“The Goodyear Tire and Rubber Co.,

“ Akron, Ohio.

“Upon notice of my death please give my insurance to my sister Miss Robina Glen of 181 West Forest Ave., Pawtucket, R. I., or if she is dead give it to Miss Shelia Ross of the same address. Metzger has been brutal and unkind to me and his frequent beatings have helped hasten my end.

“Signed by me,

“Janet F. Metzger

“April 7th, 1941.”

This letter was sealed and stamped but not mailed, and was found by the coroner in a box with her insurance certificate and her will. The homicide occurred on May 1, approximately three weeks after the date of the letter.

The only evidence on the issue of a change of beneficiary from the husband to the sister is the policy or certificate of insurance, which was in the possession of the insured and upon which, “presumably on April 7/1941,” the name of the husband was scratched out and the name of the sister inserted, and the foregoing letter to The Goodyear Tire & Rubber Company.

A precis of two decisions of the Supreme Court of this state on the subject of change of beneficiary is well stated by Matthews, J., in Union Central Life Ins. Co. v. Macbrair, 66 Ohio App., 144, at 148, 31 N. E. (2d), 172:

“There is no doubt that these [Atkinson v. Metropolitan Life Ins. Co., 114 Ohio St., 109, 150 N. E., 748, and Arnold v. Newcomb, 104 Ohio St., 578, 136 N. E., 206] and many other cases hold that where the unconditional right to change the beneficiary is reserved, additional provisions as to the mode and manner of making the change are deemed solely for the benefit and protection of the insurer, and if it sees fit to waive such provisions, no right of the original beneficiary is violated, and the intention of the insured to change the beneficiary given effect, notwithstanding noncompliance with the provisions of the policy as to the mode and manner of expressing such intent.”

This learned judge construed, in part, Atkinson v. Metropolitan Life Ins. Co., supra, the 4th and 5th paragraphs of the syllabus of which are:

“4. The provisions in a policy of insurance regulating the mode and manner of making a change of beneficiary are for the benefit of the insurance company and may be waived by it.

“5. In the event of a controversy between a former named beneficiary and a new beneficiary, if the insurance company interpleads in an action by a claimant to recover the proceeds of the policy it thereby waives any interest in the outcome of the action and thereupon the cause shall proceed between the respective claimants uninfluenced by any rights or interests of the insurance company.” (Italics ours.)

Thus it appears that, in this state, the old rules of strict construction finally expire in the last pronouncement.

The policy under consideration reserved the unconditional right to the insured to change her beneficiary. The additional provisions pertaining to the mode and manner of effecting the change were solely for the benefit of the insurer, and in this case were waived by the interpleader. The insured .scratched out the name of her husband and substituted the name of her sister on the policy, in the same manner as the company had previously changed the name of the beneficiary on the. same policy from her sister to her husband; she at the same time wrote a letter to her employer who cared for such matters for its employees, and the only thing that she failed to do was to mail the letter and forward the certificate; instead she placed the letter with her personal papers, which it was- reasonable to suppose would reach intact the hands of her personal representative in the event of her death.

Under these circumstances it is not difficult for this court to find that there was some evidence before the trial court from which it could be concluded that the insured fully desired and intended to change the beneficiary in her policy of insurance on April 7, 1941. In fact, from the language of her letter and her subsequent death, it is reasonable to suppose that she anticipated an assassin’s malevolence and desired that neither the culprit nor any of his kin should profit from her execution.

Deciding, as heretofore stated, that, in the absence of a motion for a new trial, this court is precluded from weighing the evidence, but that, in looking to the evidence for the limited purpose of determining whether there is any evidence to support the judgment, and finding that there is, it becomes unnecessary to consider at length other interesting questions of law, all of which, however, would preclude, this sole appellant from recovering in this appeal.

The policy itself provides: ‘ ‘ That if any designated beneficiary predeceases the employee, the interest of such beneficiary shall vest in the surviving designated beneficiary or beneficiaries, if any, but if no designated beneficiary survives the employee or if no beneficiary has been designated, the insurance shall be payable to the first named beneficiary, or class of beneficiaries, of the following successive preference beneficiaries who shall survive the employee: the employee’s (a) widow or widower; (b) surviving children, equally; (c) fath- . e'r and mother, equally, or to the survivor; (d) surviving brothers and sisters, equally; (e) executors and administrators; ’ ’ etc.

As stated heretofore, the sole surviving heirs and next of kin of the insured are the plaintiff and her six sisters. Under the very terms of this contract of insurance (“d” and “e,” supra), the sisters fall within the class entitled to recover before the estate of the insured, and the six sisters, by their decision to not appeal, do not object to the judgment entered.

Judgment affirmed.

Stevens, P. J., and Washburn, J., concur.