text:
    The State of Ohio, Appellee, v. Stemen, Appellant.
    (No. 689
    Decided April 17, 1951.)

      Mr. Howard G. Eley, prosecuting attorney, for appellee.

      Mr. George A. Meekison and Mr. Otto W. Hess, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke County. The defendant was indicted and tried on sixteen counts charging that he issued checks with intent to defraud, contrary to the provisions of Section 710-176, General Code. He was convicted on fifteen counts. One count was dismissed.

Before trial the defendant moved for a change of venue. The court overruled the motion without prejudice, stating that the matter might be considered again should such cause be shown on voir dire examination of the prospective jurors. Nothing developed on the voir dire examination to show cause for a change of venue. The jurors were examined, impaneled and sworn. Thereafter counsel for defendant renewed his motion, which was overruled. Support for this action is found in Richards v. State, 43 Ohio App., 212, 216, 217, 183 N. E., 36. A change of venue is a matter which rests within the sound discretion of the trial court. "We find no abuse of discretion present.

Neither do we find any prejudicial error committed in requiring the defendant to go to trial under an indictment which charged him, in sixteen separate counts, with issuing sixteen separate checks. Whether the defendant should be tried on all sixteen counts, or on separate counts, or whether the counts should be separated into groups was a matter which rested within the sound discretion of the trial court. Section 13437-3, General Code. No abuse of discretion is shown.

The checks in question were drawn on the Van Wert National Bank. The state called as a witness one Vernie Townsend, assistant cashier of the Second National Bank of Greenville, in which bank The Ohio Peed Company, of which corporation the defendant was president and general manager, had a checking account. Over defendant’s objection the court permitted to be introduced as exhibits a number of checks drawn on the Greenville bank, and a ledger sheet covering the period from August 1949 to January 24, 1950. The witness was examined and cross-examined at length concerning this bank account. It was contended by the defendant that this evidence suggested some irregularity in the banking operations, although no irregularities were actually shown, and that such evidence prejudiced the minds of the jurors. No objection was interposed by the defendant to the testimony of the witness and the record shows that defendant’s counsel interrogated the witness on cross-examination with respect to these matters. The record is not clear that defendant offered exhibit 18. The state offered to introduce exhibit 18, and defendant’s objection was sustained. The state was permitted, over defendant’s objection, to introduce the ledger sheet, exhibit 20. Both the state and defendant offered to introduce the checks drawn on the Greenville bank, exhibit 19, although the record shows defendant finally objected to introduction of the checks when offered by the state. While this testimony, may have been irrelevant, we do not find that the admission of exhibits constituted prejudicial error.

Defendant claims that the prosecuting attorney, in his closing argument to the jury, referred to certain factual matters not in evidence. The state claims that these remarks were provoked by the argument and statements made to the jury by counsel for the defendant. Affidavits are attached to the briefs of the prosecuting attorney, supporting the claim that such remarks were uttered in retaliation. These affidavits are no part of the record. However, the record shows that objection was made by counsel for the defendant to- certain statements made by the prosecuting attorney to the jury during his closing-argument. The prosecuting attorney immediately said: “I will withdraw that statement.” The court said: “Very well.” No instructions to the jury were requested or given. Apparently both counsel and the court did not regard the remarks of sufficient seriousness to require further comment. In our opinion the record does not show that prejudicial error was committed.

We come now to a consideration of the principal question presented. Does the evidence warrant a finding of intent to defraud under Section 710-176, General Code? This section, in part, provides:

“Any person, who, with intent to defraud, shall make or draw or utter or deliver any-check, draft or order for the payment of money upon any bank or other depository, who, at the time thereof, has insufficient funds or credit with such bank or depository, shall be guilty of a felony * * *.
“As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by.the drawee, shall be prima facie evidence of intent to defraud, and knowledge of insufficient funds in, or credit with, such bank or other depository.” (Emphasis ours.)

Intent to defraud is an essential element of the crime charged. As against the drawer of the check, the fact that payment of the check is refused is prima facie evidence of intent to defraud, and knowledge of insufficient funds in the bank. However, our Supreme Court has held, in Koenig v. State, 121 Ohio St., 147, 167 N. E., 385, that, in a prosecution under Section 710-176, General Code, to charge the jury that evidence that the check was refused payment was sufficient to establish beyond a reasonable doubt the intent to defraud and knowledge of insufficient funds in the bank, in the absence of explanation or contradiction, constituted reversible error. In the syllabus it is stated that the prima facie presumption provided in this section is not alone sufficient to warrant the jury in finding the accused guilty beyond a reasonable doubt. On page 151, the court said: £ £ Intention is a question of fact, and not one of law.” See, also, Huffman v. State, 205 Ind., 75, 185 N. E., 131.

What does the evidence in the instant case show? The essential facts are not in dispute. The defendant, his father and a third person in 1943 incorporated The Ohio Feed Company. The defendant’s father and the third person invested no money in the corporation, but each was issued one share of stock. The defendant contributed all the assets of the corporation. At the time the corporation was organized the defendant was elected president and general manager; the father and the third person were elected vice-president and secretary-treasurer, respectively. The corporation, beginning in 1945, operated several grain elevators. The corporation prospered and acquired interest in other elevators. In 1949, and in the early part of 1950, the corporation was operating six separate elevators in six separate communities in the western part of Ohio, one of which was located in the city of Greenville. The principal place of. business of the corporation was located in Van Wert, Ohio. The Ohio Feed Company, at the various elevators, purchased grain from the farmers and sold to the farmers feed, coal, fence, etc. Each elevator had a manager and a staff of employees. Inasmuch as the Greenville operation is involved, we recite the evidence as it relates to the operation of the business of the Greenville plant. All purchases were paid for by checks drawn on the Van Wert National Bank. As farmers would deliver grain at the Green-ville elevator and request payment, the bookkeeper at the Greenville elevator would determine the amount due and draw a check on the Yan Wert National Bank and deliver the check to the farmer. Each day a summary sheet would be made up by the bookkeeper and mailed to the principal office at Van Wert, which summary showed all business transactions at the Greenville elevator for the previous business day. These summary sheets showed all checks drawn against the account of the Van Wert National Bank, the amount of the checks, and to whom payable. The same procedure was followed at all other elevators. On the second day following the transaction the main office of the corporation in Yan Wert had the information as to the number and amount of checks, to whom payable, and the aggregate amount thereof drawn on the Yan Wert bank. Prom the information furnished, the employees of the corporation at the Yan Wert office were able each day to determine the bank balance. The record further shows that each day an employee of the Van Wert National Bank would call the main office of the corporation at Yan Wert and inform the bookkeeper or some other employee of the corporation of the aggregate amount of checks which were presented for payment on that particular day. Thereupon, an employee of the corporation would go to the bank and pick up all checks presented on that particular day and write a check against the same account in the aggregate sum of all the checks picked up and leave one check in the possession of the bank. The checks from the bank were taken to the main office of the corporation in Van Wert and checked against the summary sheets and other records. On the first succeeding business day, or at the latest on the second succeeding business day, after the transactions took place at the several elevators, the main office of the corporation in Van Wert was informed of the transactions and knew, or should have known, the correct status of the bank account.

The evidence shows that the defendant spent all his time at the principal office of the corporation in Van Wert, and did not know of'the transactions being conducted at the several elevators. The defendant established the bookkeeping system used by the corporation, and in co-operation with the Van Wert National Bank established the procedure to be followed by the corporation and the bank respecting the picking up of checks presented to the bank on any particular day and the substitution thereof of one check drawn on the same account by the corporation. The defendant, acting for the corporation, employed a manager at each elevator to conduct the business at the elevator. At the Greenville elevator one Knodle was the manager, who employed Henrietta Brand as bookkeeper. Miss Brand took immediate orders from Knodle, but the defendant testified that Miss Brand had full authority to write checks for purchases made at the Greenville elevator. The record shows that the defendant issued the orders for the corporation and was at all times the directing head of the corporation. In fact, it was a “one-man” corporation.

All the checks in question were drawn at the Green-ville elevator by Miss Brand and signed “The Ohio Feed Company, by Henrietta Brand.” The name or signature of the defendant did not appear on the checks. In drawing and issuing these checks Miss Brand was acting within the scope of her authority and by direction and permission of the defendant.

We are of the opinion that under the facts in this case the defendant is legally and criminally responsible for the acts of Miss Brand in drawing and issuing the checks when there was no reasonable expectation of payment. The defendant cannot shield himself behind a corporate organization or the fact that he was acting in a corporate capacity. The corporate entity will be disregarded. State v. Standard Oil Co., 49 Ohio St., 137, 177, 30 N. E., 279, 34 Am. St. Rep., 541, 15 L. R. A., 145; Meyer v. State, 54 Ohio St., 242, 43 N. E., 164; Hitchcock v. State, 47 Ohio App., 90, 190 N. E., 773; Wood v. United States, 204 F., 55; Kelly v. United States, 258 F., 392; Boyd v. United States, 275 F., 16; Cowley v. People, 83 N. Y., 464, 38 Am. Rep., 464; People v. Bliven, 112 N. Y., 79, 19 N. E., 638, 8 Am. St. Rep., 701; People y. Sherman, 133 N. Y., 349, 31 N. E., 107; People v. Siman, 197 N. Y. Supp., 713; State v. Thomas, 123 Wash., 299, 212 P., 253, 33 A. L. R., 781; 8 Ruling Case Law, 66, Criminal Law, Section 17; 19 Corpus Juris Secundum., 364, Section 931; 33 A. L. R., 787; 7 Thompson on Corporations (3 Ed.), 1927, Section 5633; 1 Davies, Ohio Corporation Law, 192, Section 3, and 905, Section 38.

In the instant case the state produced no evidence to show the intention to defraud other than that which may be inferred from the method of doing business, and the procedure followed by the corporation and the bank, and information gathered at the main office as to the transactions which took place at the various elevators, all of which affected the bank balance on each succeeding business day. There is no evidence in this case to show that the defendant withdrew for personal use any sum of money from the Yan Wert National Bank or used any of the funds for any purpose other than the conduct of the business.

Under the provision of Section 710-176, General Code, it must be shown that there are insufficient funds or credit at the bank “at the time thereof,” which refers to the time of issuing the check. The defendant contends that he cannot be found guilty under this section unless it be shown that on the day the checks were issued there were insufficient funds in the bank to meet the check, and cites the text in 35 Corpus Juris Secundum, 660, as authority, which is as follows :

“To constitute the crime, the insufficiency of the funds must exist at the time the check is issued. [Several cases are cited in the footnote in support of the text.] If there were sufficient funds on deposit at that time the offense is not committed, even though by subsequent changes the funds were rendered insufficient; but this is not true where the drawer knows that other checks which he has drawn, but which have not yet cleared, will deplete the fund before the check in question can be presented.” (Emphasis ours.)

The jury would have a right to infer an intent to defraud if checks were drawn on the bank when the funds were insufficient or the defendant had no reasonable ground to believe the funds would be sufficient by the time the check would be presented in due course.

We now consider the evidence, taking up the checks in chronological order.

On January 6, 1950, a check was issued in the amount of $871.26. Prom January 6, 1950, until January 28, 1950, the bank balance was sufficient to meet the check. This check, together with all other checks involved in all the counts, was presented on one day, to wit, January 28, 1950. The aggregate amount of these checks was $32,362.65. On January 10, 1950, a check was issued in the sum of $1,544.12. There were sufficient funds in the bank to cover this check at all times from the date the check was issued until January 24, 1950. On January 20, 1950, a check was issued in the amount of $1,409.82. There were sufficient funds in the bank to cover this check on the date it was issued. In the meantime, from January 6, 1950, to January 20, 1950, numerous checks were issued by the several elevators against this account and paid, but the bank balance at all times was sufficient to meet the payment of these three checks.

In prosecutions for issuing checks with intent to defraud, reasonable expectation of payment constitutes a defense. 35 Corpus Juris Secundum, 657, Section 21. The evidence with respect to three of the counts requires the application of this rule.

It. is our opinion that the evidence is insufficient to find the defendant guilty beyond a reasonable doubt of the intent to defraud the payees of these three checks as charged in counts numbered 8, 3 and 10 of the indictment.

On January 24, 1950, four checks were issued, total-ling $10,209.05. Neither on that day nor at any time thereafter were there sufficient funds in the bank to meet the payment of these checks, although there were sufficient funds in the bank to meet one of the checks. However, we believe that when four checks are issued in one day, totalling an amount of $10,209.05, and only $983.87 is shown as the bank balance, the jury may infer an intent to defraud with respect to the issuing of all of such checks.

On January 25, 1950, four checks were issued totaling $10,021.38. Again there were sufficient funds in the bank to meet one of the checks, but the bank balance on that date was $1,812.06, and at no time thereafter was the bank balance sufficient to meet all the checks issued on that day. On January 26, 1950, two checks were issued, totalling $662.84. While the bank balance was slightly larger than the total of those checks, in view of the issuing of over $20,000 worth of checks in the two previous days and the insufficiency of the bank balances on those days, the jury would have the right to infer that there was an intent to defraud the payees of those checks. On January 27, 1950, one check was issued in the amount of $5,991.68, and on January 28, 1950, one check in the amount of $712.57. On the days these checks were issued the bank balances were insufficient to meet the checks.

All the checks involved in this indictment, totaling $32,362.65, were presented on January 28, 1950. In the meantime, from January 24 to January 28, 1950, numerous other checks had been drawn and paid by the bank from this account. The number of checks and the amount paid are not stated in the record. Also, during that period of time substantial deposits were made in the bank account, but the bank balance was insufficient to cover all the checks issued during that period.

This court is of the opinion that the evidence is sufficient to justify a finding by the jury that the defendant was guilty of an intent to defraud the payees of the checks issued on January 24, 25, 26, 27, and 28, 1950, as charged in counts numbered 1, 2, 4, 11, 7, 9, 13, 14, 6, 16, 12 and 15.

Judgment reversed in part and affirmed in part.

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


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    Smith, Appellee, v. Sutter, Appellant.
    (No. 612
    Decided April 16, 1951.)

      Messrs. Freeman & Freeman, for appellee.

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

This is an appeal on questions of law from a judgment entered on a verdict for the plaintiff in the sum of $750.

Plaintiff brought her action against the defendant for services rendered defendant’s wife at the instance and request of the defendant. The claimed services consisted of motor trips, board, care, and nursing, the reasonable value of which was alleged to be $2,788. At the trial, the petition was amended to allege that necessary services were rendered at the instance and request of the defendant.

Section 8003, G-eneral Code, provides that if the husband neglects to make adequate provision for the support of his wife, any other person, in good faith, may supply her with necessaries for her support and recover the reasonable value thereof from her husband.

Defendant’s wife was an inveterate “gadder.’’ When she could not prevail upon her friends and neighbors to accompany her on automobile trips, she hired taxicabs to take her on numerous visits. She was committed to a state institution in November 1949 and died within a month thereafter.

Plaintiff testified that at the instance of defendant’s wife, Mrs. Sutter, on not less than three occasions each week, from 1943 to 1948, she took Mrs. Sutter to Sandusky, Marion, Attica, Cleveland, Norwalk, Alliance, and other places. Plaintiff estimated that these trips cost her $10 per week for 280 weeks. On these trips Mrs. Sutter called on fortune tellers, attended picture shows, and went to various restaurants. Plaintiff testified also that she bore substantially all the expenses of these trips, including meals, for Mrs. Sutter. Occasional trips were made to consult a physician in another city. Plaintiff said also that her claim was based on what she had to spend to take Mrs. Sutter places, and that, as a result, plaintiff neglected her own family. There is no evidence to support the claim for board, care, and nursing except the cost of meals incident to these trips.

A review of the evidence discloses nothing tending to show that the defendant neglected to make adequate provision for the support of his wife. The fact that the wife did not have money to pay for gasoline and her meals on her many trips does not support the contention that the defendant neglected to support her. On the other hand, the evidence discloses that the defendant was a boilermaker earning $250 a month. He also received a pension. Defendant testified that for a number of years he turned his pay check over to his wife, retaining only 25 or 30 dollars for his personal use. He testified further that during the last year of her life,' when she became irresponsible, he discontinued this practice but gave her 10 to 15 dollars occasionally. Other witnesses said she was provided with funds to pay for her meals and taxicab rides. She had a charge account at the Willard Taxi and also at a gasoline station. From January 3 to November 5, 1948, she made 128 trips via Willard Taxi service. A young man testified that, from 1945 until her death, he drove Mrs. Sutter in the Sutter’s car “around every other day” to various points in the vicinity of Willard, including Sandusky and Alliance. On these trips she paid the expenses, including meals for the driver, and occasionally paid him for driving. He said she generally had money when she went any place. This testimony was corroborated by other witnesses and was uncontradicted. She was provided with a home and food. She also had a hired girl who helped with the housework.

There is no evidence that the defendant neglected to make adequate provision for her support, except the testimony of the plaintiff that Mrs. Sutter did not have money to pay for her pleasure trips or an occasional trip to a doctor, whose office was outside Willard.

The term, “necessaries,” as used in the statute means such food, medicines, clothing, shelter, or personal services as are usually considered reasonably essential for the preservation and enjoyment of life. As to a wife, the term is not confined to items necessary to sustain life but includes such articles and services as are suitable to maintain the wife according to the position and condition of the life and means of the husband. The term does not include extravagancies, luxuries, or expeditions for pleasure and personal enjoyment. A third party supplying luxuries to a wife cannot recover from the husband in the absence of proof of an agreement, express or implied, on the husband’s part to pay for same.

In order to sustain a recovery by a third party against a husband under the statute, there must be proof (1) that the husband neglected to make adequate provision for the support of his wife and (2) that the plaintiff, in good faith, supplied the wife with necessaries for her support.

In the absence of a showing of these two elements, a recovery may only be sustained upon proof of an agreement on the part of the husband to pay for necessaries furnished.

Ordinarily, whether articles purchased by the wife or services rendered to her were necessaries and whether the provision made by the husband for his wife was adequate are questions of fact for the jury. The authorities supporting this principle relate to purchases of merchandise by the wife upon the credit of the husband. However, where the evidence discloses that the basis of the claim is transportation of the wife on pleasure trips three times a week over a period of years, the court should determine as a matter of law that such services rendered to the wife were not necessaries. Furthermore, the evidence fails to disclose that the defendant neglected to make adequate provision for the support of his wife, and that the services were rendered at the instance and request of the defendant. The court, therefore, erred in overruling defendant’s motion for a directed verdict, made at the conclusion of the case.

The judgment is reversed and final judgment entered for the defendant.

Judgment reversed.

Carpenter and Conn, JJ., concur.


author: Hildebrant, P. J.

text:
    Deye, Appellee, v. The Quality Engraving & Electrotype Co. et al., Appellants.
    (No. 7435
    Decided October 29, 1951.)

      Mr. John R. Gehrig, for appellee.

      Mr. Leo J. Brumleve, Jr., and Mr. David B. Wood, for appellants.
   Hildebrant, P. J.

This appeal on law and fact is presented to this court on the second amended petition, the answer of defendant corporation, the amended answer of defendant partnership, the record, the exhibits introduced in evidence here, and the arguments and briefs of counsel.

The defendant partnership consists of Charles E. Deye, his wife and son, who also own all the stock of defendant corporation. Both forms of enterprise are operated as one, under the same roof, with the partnership engaged in doing the manufacturing, and the corporation engaged in selling electrotype units, with the defendant Charles E. Deye in the actual management and control of both.

Plaintiff, a brother of defendant Charles E. Deye, was for many years employed in the enterprise, and for a number of years prior to his leaving that employment in January 1946, was plant superintendent at a salary of $12,000 per year.

Plaintiff’s claims are based upon an alleged contract negotiated with defendant Charles E. Deye for the payment of “royalties” of 10 cents per unit on units assembled into composite metal molds known as “step and repeat” units, made by the method invented by plaintiff and, finally, on the third application therefor, patented in the name of plaintiff, although in the application therefor the patent rights were assigned to the corporation, which has always been sole owner thereof.

The burden of proving such a contract rests upon the plaintiff.

Defendant denies that the agreement, made and acted upon for approximately two years, even contemplated any payment of royalties as such, but claims it amounted only to an increase in compensation to satisfy the demands of plaintiff made under a threat by plaintiff of leaving his employment with the defendant, and that the agreement took the form it did in order to obviate the salary freeze in effect at the time by federal law.

It therefore appears that decision of this case depends upon the legal effect of what was said and done between the plaintiff and Charles E. Deye over a period of years.

As to the invention itself, it appears from the record that the idea for a composite metal mold originated with plaintiff who, although not employed to invent, spent much time both during regular hours at the plant and outside in its development, in which endeavor he was joined and assisted by defendant Charles E. Deye and other employees, with all expenses being borne by the corporation, including that of successive patent applications which always bore the assignment by plaintiff of all patents and rights thereunder to the defendant corporation. However, the balance appears to justify crediting plaintiff with the invention sufficiently to make the application in his name, and definite benefits to the business appear to have followed. It, therefore, appears that a reasonable basis of a claim for compensation on part of plaintiff for development of the invention has been established.

Plaintiff testified that at the time of the original patent application about 1939, his brother, Charles E. De3m, said to him: “If this proves out I will take care of you”; and that again, in 1941: “He said, ‘listen, if this thing works out, I will take care of you. ’ ’ ’ While denying any such statement, defendant contends that the consideration for the patent 'assignment is to be found in the continued payment to plaintiff of the $12,000 salary after his duties as superintendent had been halved by reason of the sale and discontinuance on the part of defendants of the engraving portion of their business.

It appears from the record that during the five-year period from 1939 until May 1944, plaintiff was intermittently pressing defendant for an increase in compensation based on his expectation of receiving something for his work on the patent and his desire to provide security for his wife in the future in the event of his own or his brother’s death. He testified that he and his brother Charles consulted an attorney in 1941 “for the purpose of stating the compensation— stating the position of the company after a period of time and for — well, extra compensation.” As plaintiff expressed it, “well, I had been at him for an agreement for this patent to revert back to me in case something happened to me or in case something happened to him that my wife would be taken care of.”

Plaintiff also suggested that he be allowed to ácquire some stock and that an offer of $2,400 the first of each year with which to buy insurance for his wife was never carried into effect. This offer came in 1943, after plaintiff told his brother: “I wanted something for security for the wife in case something happened to me. ” “ Q. Why? A. Because I felt I had something coming and I wanted her protected. ’ ’

With the foregoing background of events, discussions between the parties, and their conduct thereon prior to May of 1944, plaintiff testified as to the contract relied upon:

“A. We were at lunch together at the Metropole Hotel and as usual lunch was spoiled for me with conversation. I asked him again to do something for me and the answer was no. I asked him to sell me stock in the company, and he said, ‘no.’ I said, ‘well, I can see the handwriting on the wall, I will leave the first of June.’
“Q. What did you mean by that? A. Quit.
“Q. The handwriting business? A. I was promised, and promised, and promised something for the step and repeat and never got it.
“Q. Go ahead. A. So then I went back to the office and he came back in the office.
“Q. Were you in the same office? A. I had a desk in the outer office and he was in the private office, on the same floor, same building. He called me in his office and he says, ‘can’t sell you no stock, I can’t give you no written agreement.’ He said, ‘I will tell you what I will do,’ he said, ‘I will give you seven per cent commission on all the sales that you are responsible for.’ I says, ‘O. K., how about step and repeat?’ He said, ‘we will work out something on that.’ I said, ‘you haven’t got a lot of time to work it out because I am not sold on staying later than June 1st, so he called me in’—
“Q. On the same day? A. On the same day, later that afternoon, and he said to me, ‘I will tell you what 1 will do, I will give you ten cents per unit on step and repeat. ’
“Q. From when? A. And he says ‘I will date it back to January 1,1944.’
“Q. What did you say? A. I says, ‘I will take it.’
“Q. Did anything else happen in connection with this that your brother Joseph was involved in? A. A few days later my brother Joseph was all hot and bothered because he didn’t know how to put that on the books, he said, ‘What am I going to mark it.’
“Q. Were you present? A. He said, ‘You know we can’t show this as an increase. ’
“Q. WTio said that? A. Joe Deye said it, and Charles Deye said to Joseph Deye, ‘That is simple, it is royalty.’
“Q. What did Joe say? A. There was nothing further in Joe’s conversation. He turned around and went out.
“Q. Prior to this time did Charley ever say he was going to give you royalty? A. Not using that term.
“Q. Did he ever say he was going to compensate you for your invention? A. Yes, he did do that.”

Both parties testified that nothing was said as to the length of time the above payments were to continue, stating that no time limit was placed upon it.

Defendant Charles E. Deye denies the statement attributed to Mm by plaintiff, “that is simple, it is royalty,” and the bookkeeper testified that he did not remember the statement being made and corroborated the defendant by testifying that Charles E. Deye criticized his records for showing the unit payments as royalty and directed Mm to change them. The bookkeeper takes upon himself the responsibility for the nomenclature, as his solution for getting around the government salary freeze regulations and for the erasure from certain of his records of the word, royalty, with the substitution of the word, allowance, stating that he was under pressure from Charles E. Deye who was criticizing the use of the word, royalty, as wrong.

This court fails to find in this record proof of a contract to pay plaintiff royalties as such. Webster’s New International Dictionary (2 Ed.) defines royalty: ‘ ‘ A duty or compensation paid to the owner of a patent or a copyright for the use of it or the right to act under it, usually at a certain rate for each article manufactured, used, sold, or the like. ’ ’

At the time this contract was made plaintiff was not the owner of the patent. The corporation was the sole owner thereof, so that the essential basis for a contract for royalties, as such, was not present, and defendant Charles E. Deye testified that a contract for royalties was never within the contemplation of the defendants for the very reason that they already owned the patent. While it is true that the corporation became the owner'of the patent by reason of its assignment to the corporation by the plaintiff, in whose name it was obtained, the record shows that over a five-year period defendants refused to agree with plaintiff that any further compensation was due him in consideration of the patent assignment, and it was only when plaintiff threatened to quit the employ of defendant on the 1st of June that his dual claim of being entitled to an increase in compensation for work done on the patent and for the purpose of protecting the fntnre security of his wife resulted in the offer to which he has testified he accepted.

It, therefore, appears that the offer of increased compensation by way of commission and payment of 10 cents per unit on “step and repeat,” was made by defendant in consideration of plaintiff remaining on the job, which offer the plaintiff accepted.

Negativing the claim of a contract for royalties as such is, also, the fact shown by the record that payment was made on articles labeled “step and repeat” and advertised and sold to the trade in that manner, which were actually manufactured by the old “patch” method, rather than only those made by the patented process; and there is testimony that had the 10 cent per unit payments been confined to those made solely by the patented process, the returns to plaintiff would have been so negligible as to be unsatisfactory. Obviously, units manufactured by other than the patented process could not be a proper subject for the payment of royalties.

Since this court does not find proof of a contract to pay royalties as such, it can not imply a contract to make payments for the life of the patent, or beyond the time the plaintiff left his' employment. Nor can this court, from the record, sever that part of the contract, agreeing to pay 10 cents per unit on “step and repeat,” from that part agreeing to payment of a commission on certain accounts, which surely could not extend beyond the duration.of the employment.

Taking this view of the record, the court is not called upon to consider the application of the statute of frauds herein.

The court, therefore, finds the issues joined in favor of the defendants.

Judgment for defendants.

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


author: Middleton, P. J.

text:
    Hasselschwert, Appellant, v. Hasselschwert, Appellee.
    (No. 156
    Decided May 2, 1951.)

      Mr. C. A. Balde, for appellant.

      Mr. Otto W. Hess and Mr. George A. Meehisob, for appellee.
   Middleton, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas dismissing plaintiff’s petition on motion of defendant after the opening statement of counsel for plaintiff.

As shown by the bill of exceptions, the court dismissed the petition for the reasons, first, that the plaintiff did not come into court with clean hands, and, second, that the facts alleged in the petition did not constitute a cause of action.

Plaintiff brought her action to set aside a deed to real property, for partition, for accounting of personal property, and for damages for the wrongful detention of such personal property.

In the first cause of action plaintiff sets forth the marriage of the parties in 1924, and the deed by which the real estate in question was acquired by the plaintiff and the defendant jointly. It is then averred that the defendant, believing plaintiff was about to become involved in a lawsuit, suggested to plaintiff that she deed her one-half interest in the real estate to him; that defendant promised plaintiff that if she would execute a deed to him for the property he would later transfer it back to her; and that during the time the property remained in defendant’s name plaintiff would be protected by will in case of defendant’s death.

The plaintiff then avers that by reason of such promise she executed a deed to the property conveying her one-half interest therein to the defendant; that the conveyance was made without any consideration whatsoever; and that the defendant never intended to keep his promise to reconvey.

It is averred further that the defendant repeatedly threatened to kill plaintiff and himself unless plaintiff would leave the premises; that because of these threats plaintiff moved to Illinois; that thereafter defendant instituted an action for divorce against plaintiff and again threatened her life if she attempted to contest the divorce action or to seek a property settlement; that plaintiff, by reason of said threats, did not enter her appearance or file pleadings; that a decree was entered granting the defendant a divorce; and that neither the property in dispute nor any other property was mentioned in the pleadings or in the decree in the divorce action.

For her second cause of action plaintiff avers ownership of certain personal property that she and the defendant owned jointly and that part of said property has been sold by the defendant and the remainder is in his possession. An accounting is asked of the defendant for the property sold, and partition of that remaining in defendant’s possession.

For her third cause of action plaintiff alleges that certain personal property belonging to her was left in possession of the defendant. Replevin of this property is sought together with damages for its retention.

The defendant filed an answer in which he admits the marriage and later divorce of the parties, the execution of the deed to the parties jointly of the property in dispute, and the later deed from the plaintiff to defendant.

The answer then sets forth the circumstances claimed by the defendant to have led up to the execution of the deed which the plaintiff seeks to have set aside.

The defendant alleges further that the Court of Common Pleas had jurisdiction in the divorce action to award plaintiff’s interest in the property to the defendant, and that the plaintiff is now estopped to contest the validity of that conveyance.

By way of a second defense to plaintiff’s first cause of action, defendant denies, all averments of the first cause of action not specifically .admitted to be true.

At the outset of the consideration of the questions here involved we are met by the admitted general rule that equity will not assist a grantor to recover land conveyed with an intent and purpose to defraud credito.rs.

This rule applies, whether there were or were not valid claims against the grantor at the time the land was conveyed.

The Supreme Court of Ohio has so held in the cases of Pride v. Andrews, 51 Ohio St., 405, 38 N. E., 84, and Kihlken v. Kihlken, 59 Ohio St., 106, 51 N. E., 969.

The court, in its opinion in the Pride case, in announcing the general rule, stated:

“There are cases, however, seemingly at variance with this rule, in which aid was extended to grantors who were in delicto, but not in pari delicto with the grantees. But these cases are exceptions to the well-defined and almost universal rule, and rest upon facts not existing in the case before us. Where there are different degrees of guilt as between the parties to the fraudulent or illegal transaction, it was said in Roman v. Mali, 42 Md., 513, that as an exception to the general rule, if one party act under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the court in such case will relieve.
“* * * It was conceded, however, that a court of equity might assist the grantor where circumstances were shown to exist which recognized its interposition on other grounds of settled equity jurisdiction, ‘such as fraud in procuring the deed, imposition by the grantee, a violation of some fiduciary relation, an abuse of confidence, delusion or the like on the part of the grantor at the time of executing the deed. ’ * * *
“* * * ‘While it is possible to deduce from them a general principle that degrees of guilt will be recognized in such transactions, and that grantors may, in certain cases, reclaim the property fraudulently alienated, where the transaction was superinduced by the unfair action of a vendee who occupied some relation of confidence which enabled him to unduly influence the vendor, yet a very clear case with well defined reasons for excepting it from the general rule must be presented ***.’”

In the light of the above statement, does the plaintiff, by the averments of her petition, bring herself within the exceptions therein outlined?

In the instant case it must be remembered that the deed was executed by the wife to her husband and at the solicitation of the husband.

Section 7999, General Code, provides:

“A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.” (Emphasis added.)
“Because of the dominating influence which a husband exercises over the wife, transactions between them to be valid, particularly as to the wife, must be fair and reasonable and voluntarily and understandingly made. Such transactions are closely scrutinized to prevent "the wife from being unfairly treated, by the improper conduct of the husband * * Brewer v. Brewer, 84 Ohio App., 35, 40, 78 N. E. (2d), 919.

It was held in the case of McClanahan v. McClanahan, 79 Ohio App., 231, 72 N. E. (2d), 798:

“A defendant in an equity action may not avail himself of the defense of ‘unclean hands’ on the part of the plaintiff, where the questioned conduct of the latter affected third persons and not the defendant, and where the application of such defense would result in unjust enrichment of the one asserting it. ’ ’
“ (1) Where the owner of an interest in land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the transferor, if (a) the transfer was procured by fraud, duress, undue influence or mistake, or (b) the transferee at the time of the transfer was in a confidential relation to the transferor * * 1 Restatement of the Law of Trusts, 135, Section 44.
“If the owner of property transfers it inter vivos upon a trust which fails for illegality, ordinarily the transferee holds it upon a resulting trust for the transferor if the transferor was not in equal fault with the transferee. Thus, if the transferee induced the transferor to create the trust by fraud, abuse of a confidential relationship, or other improper means, the transferee holds upon a resulting trust for the transferor.” 2 Restatement of the Law of Trusts, 1304, Section 422, Comment d.

The court in the instant case apparently considered the defendant’s motion to dismiss the petition as a demurrer; therefore, the averments of the petition which are well pleaded must be considered true.

In view of these averments of the petition we are of the opinion that undue advantage was taken of the plaintiff by the defendant; that because of the confidential relationship existing between the parties the defendant was able to persuade the plaintiff to transfer her property to him; and that any wrong intent on the part of the plaintiff was the result of the acts of the defendant.

Relief should not be denied the plaintiff by the application of the maxim “unclean hands,” as applying to the plaintiff, when the conduct of the plaintiff was caused by the iniquitous conduct and threats of the defendant.

The averments of the petition set forth a cause of action for constructive trust, and to deny relief by permitting the defendant the defense of “unclean hands” would be to permit the defendant to retain property which, in good conscience, belongs to the plaintiff.

The defendant was in no position to invoke the doctrine of “unclean hands,” which he claims as an aid to him in retaining this property.

The court erred in dismissing plaintiff’s petition.

The second reason assigned by the court for dismissing the petition was erroneous, as the petition sets forth facts sufficient to constitute a cause of action.

Judgment reversed.

Jackson and Guernsey, JJ., concur.


text:
    Perry, Appellant, v. Baskey, Appellee.
    (No. 473
    Decided July 2, 1951.)

      Messrs. Culbert, Hyser & Culbert and Mr. Leo W. Kenny, for appellant.

      Messrs. Stahl, Stahl & Stahl, for appellee.
   Fess, J.

Appellee moves to dismiss this appeal because of the failure of the appellant to file a written notice of appeal in the Common Pleas Court as provided by Section 12223-4, General Code. Appellant moves for leave to amend the notice of appeal by striking the first line of the caption, “In the Court of Appeals of Sandusky County,” and inserting, “In the Court of Common Pleas of Sandusky County, Ohio.”

The notice of appeal is captioned for filing in the Court of Appeals and bears the clerk’s filing stamp in the Court of Appeals. It bears the Common Pleas Court number as well as the Court of Appeals number and recites:

“Appellant hereby gives notice of his appeal on questions of law to the Court of Appeals for Sandusky county, Ohio, from the final order and judgment made and entered herein on the 9th day of March, 1951.” (Italics supplied.)

Receipt of a copy of the notice was acknowledged by counsel for the appellee on March 24, 1951, the same day it was filed.

The praecipe is captioned for and was filed in the Court of Common Pleas on March 24, 1951.

At the hearing on the motions, it appears that one of counsel for appellant wrote out the notice and praecipe and handed the draft to his stenographer for copying. In his longhand draft of the notice, the caption recited the Court of Appeals. The error was not discovered until after the briefs on the merits were prepared.

It is apparent that the notice was captioned and stamped “filed” in the Court of Appeals by reason of the mistake of counsel, and it is obvious that the notice was intended to be filed in the trial court. It referred to the judgment entered in the trial court.

In view of the erroneous filing of the notice in the Court of Appeals, does this court have jurisdiction to consider the appeal?

Under Section 11564, General Code, the decisions are uniform that the Court of Appeals may not consider a bill of exceptions which has not been filed within the 40-day period, although the appeal will not be dismissed upon that ground. In the absence of a record disclosing error, the judgment must be affirmed. Tenesy v. City of Cleveland, 133 Ohio St., 251, 13 N. E. (2d), 122.

Under Section 12223-7, General Code, the filing of the notice of appeal within 20 days is a jurisdictional prerequisite. Section 12223-4, General Code, provides that an appeal is deemed perfected when written notice is filed with the lower court. In cases where an appeal has been perfected by the timely filing of notice in the lower court, the Supreme Court of Ohio has been exceedingly liberal in refusing to approve the dismissal of an appeal on technical grounds. In re Guardianship of Wisner, 148 Ohio St., 31, 72 N. E. (2d), 751; Loos v. Wheeling & Lake Erie Ry. Co., 134 Ohio St., 321, 16 N. E. (2d), 467; Bennett v. Bennett, 134 Ohio St., 330, 16 N. E. (2d), 474; Capital Loan & Savings Co. v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450; Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St., 110, 33 N. E. (2d), 9; Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210; Meyer v. Meyer, 153 Ohio St., 408, 91 N. E. (2d), 892.

In State, ex rel. Curran, v. Brookes, Jr., 142 Ohio St., 107, the Supreme Court held, as shown by the seventh paragraph of the syllabus:

“The filing of notice of appeal, in the court from which the appeal is taken, within the time prescribed by law, is the only jurisdictional step necessary to perfect an appeal and where such notice is not filed within such time the reviewing court is without jurisdiction to consider the appeal. ’ ’

In the Brookes case, the notice was filed in the lower court inore than 20 days after the decision was rendered.

In Bartlett v. Snouffer, 78 Ohio App., 384, 64 N. E. (2d), 848, leave to file an appeal from a justice of the peace was obtained from the Common Pleas Court, but no notice of appeal was filed in the justice court. A motion to dismiss the appeal from the Common Pleas Court to the Court of Appeals was granted on the ground that jurisdiction was not conferred upon the Common Pleas Court.

In the instant case, through error or mistake of counsel, the notice of appeal was .filed in the right church but in the wrong pew. It was filed in time with the clerk of the court, who acts as clerk of both courts. It was obviously intended to be filed in the Common Pleas Court. The praecipe was captioned for and filed in the lower court.

The provisions of the Appellate Procedure Act must he liberally construed in order to promote their objects and assist the parties in obtaining substantial justice, as enjoined by Section 10214, General Code. In re Wisner, supra. As in the Wisner case, in this spirit of liberal construction of procedural matters we find that the notice of appeal, as filed by the appellant in this court and intended to be filed in the Common Pleas Court, accomplished the purpose of a notice of appeal.

The application of the appellant for leave to amend the caption of the notice is granted and the clerk of this court is directed to refile the notice in the Common Pleas Court as of March 24, 1951.

The motion to dismiss is therefore overruled and the cause continued for hearing on the merits.

Motion overruled.

Carpenter and Conn, JJ., concur.


author: Wiseman, J.

text:
    Sheets et al., Appellees, v. Chittum, Appellant.
    (No. 4552
    Decided September 27, 1951.)

      Messrs. Folherth & Folherth and Mr. John L. Bit-ting er, for appellees.

      Mr. Henry A. Reinhard and Mr. Buss Bothwell, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County. This action was brought on a bond and for damages for malicious prosecution.

The- record shows that in cause No. 177775, Common Pleas Court, Franklin county, Augusta Chittum, the defendant-appellant herein, was party plaintiff in an action for an injunction against John W. Sheets and Lillian J. Sykes, the plaintiffs-appellees herein. In that action the plaintiff, Chittum, filed a motion for a temporary restraining order, which was granted without notice to Sheets or Sykes, restraining them from proceeding with the construction of a house on lots 516 and 517 of Dominion Park Addition. Lot No. 516 is situated immediately to the west and adjacent to the Chittum property, and lot No. 517 is situated immediately to the west and adjacent to lot 516. Sheets and Sykes filed a motion to dissolve the temporary restraining order. Within a few days the case was heard on the merits. The only relief sought was a permanent injunction. On the hearing on the merits the court found that there was no ground for issuing an injunction and dissolved the temporary restraining order.

In cause No. 178311, Common Pleas Court, Franklin county, which is now before this court on appeal, John W. Sheets and Lillian J. Sykes joined as parties plaintiff in an action against Augusta Chittum for damages alleged to have been suffered by the plaintiffs by reason of the prosecution of the injunction action and being compelled to employ counsel to defend. The first cause of action is on the bond of $500 which was given by Chittum in the injunction action. The second cause of action is one for malicious prosecution of the injunction action. The defendant, Chittum, filed a cross-petition in which she alleges she suffered damages by reason of the excavation and construction of the house by Sheets on lot No. 516 which was situated adjacent to the Chittum property. No question has been raised with respect to the joinder of parties plaintiff.

The case was tried to a jury. The evidence presented on behalf of the plaintiffs was to the effect that Sykes had expended $210 and Sheets $250 in the employment of counsel to defend the injunction action; and with respect to Sheets the evidence tended to show that he was delayed in the construction of the house on lot 516 until the injunction action was terminated, which delay caused him extra expense. Some evidence was presented in support of the second cause of action in which the plaintiffs contended that Chittum maliciously and without probable cause prosecuted the injunction action. The defendant presented evidence in support of her cross-petition to the effect that Sheets, in filling a low place on lot No. 516, állowed dirt, stones and debris to roll over onto the property of Chittum.

The jury returned a general verdict in favor of the plaintiffs in the amount of $500, of which total amount the jury found that there was due the plaintiff Sheets, $290, and the plaintiff Sykes, $210. On the cross-petition, the jury returned a verdict in favor of Chit-tum and against Sheets in the amount of $100. The court had dismissed the cross-petition against Sykes on the ground of failure of proof. In taking this action the court acted properly.

In rendering judgment on the verdict, the court found the verdict to be supported, overruled defendant’s motion to vacate the verdict, overruled defendant’s motion for judgment notwithstanding the verdict, and finally rendered judgment for $210 in favor of Sykes and, with respect to Sheets, set off the $100 due the defendant on her cross-petition against $290 due the plaintiff Sheets on the petition, and rendered judgment in favor of Sheets against Chittum for the difference of $190. We find that the trial court acted properly in so doing.

Several interrogatories were submitted. In answer to the interrogatories, the jury found that the injunction action had been brought by Chittum without probable cause, but, also, found that the injunction action was instituted and prosecuted without malice. The action of the jury in failing to return a verdict for the plaintiffs for damages in a greater sum than $500, the amount of the bond sued upon, is in accord with the jury’s answer to the interrogatory that there was no malice shown. The verdict for the plaintiffs being in the amount of $500, the amount of the bond, the verdict is valid inasmuch as it is supported by the pleadings and the evidence.

The appellant, Chittum, contends that since the jury found the injunction action was not instituted or prosecuted with malice the verdict cannot be supported. The appellant makes the point that Sheets and Sykes are not permitted to recover as damages the amount paid by them to their attorneys in defending the injunction suit, on the ground that, under the law of Ohio, in order to recover for attorney’s fees, malice must be shown. As a general proposition of law attorney’s fees are not recoverable except where punitive damages are recoverable. 13 Ohio Jurisprudence, 187, Section 102.

The plaintiffs based their right of recovery in their second cause of action on malicious prosecution, and, since the jury found that malice was not shown, the plaintiffs could not and did not recover any damages on the second cause of action. The evidence presented on the issue of malice was referable only to the second cause of action. In the first cause of action, which involved the right to recover on the injunction bond, malice was not an issue.

As a general rule, attorney’s fees cannot be recovered as an element of damages for breach of a simple contract. 13 Ohio Jurisprudence, 192, Section 105. But it has been held that there are some agreements for the breach of which attorney’s fees may be recovered. In 13 Ohio Jurisprudence, 193, Section 105, it is stated:

“Thus, in suits on injunction or attachment bonds, reasonable counsel fees may be included in the amount awarded. ’ ’

In Noble v. Arnold, 23 Ohio St., 264, the syllabus is as follows:

“In an action on an undertaking for an injunction, whereby the plaintiff agrees.to pay the defendant ‘the damages he may sustain by reason of the injunction,’ if it be finally decided that it ought not to have been granted. Reid:
“1. That attorney fees and expenses necessarily incurred in obtaining a dissolution of an injunction, may be recovered as damages secured by the undertaking, when it is finally decided that the injunction ought not to have been granted.
“2. But where the attorney fees and expenses are incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, such fees and expenses are not damages sustained by reason of the injunction, and no recovery therefor can be „ had upon the undertaking.
“3. An indebtedness, or liability to pay attorney fees and expenses, incurred in procuring a dissolution of an injunction, is sufficient damage to sustain an action on the undertaking. ’ ’

■ The case of Noble v. Arnold has been cited with approval in later opinions and is regarded as the established law in Ohio.

In 164 A. L. R., 1099, is found the note of the editor, which reads as follows:

“The view adopted in a number of jurisdictions is that if the injunctive relief obtained pending the determination of the suit is the sole or the principal purpose of the suit, the ultimate relief sought being solely or principally the perpetuation of the temporary injunction, then upon its dissolution upon the final hearing of the cause itself, counsel fees are recoverable as for the defense of the entire suit.” (Cases cited.)

In the first action, the sole relief sought was injunctive relief, and the services of the attorneys representing Sheets and Sykes in that action were rendered solely in opposition to the granting of such relief. Thus, the facts in the instant case require the application of the principle of law laid down in the case of Noble v. Arnold, supra.

In 21 Ohio Jurisprudence, 1308, 1309, Sections 230, 231, the measure of damages in such action is stated as follows:

“The measure of damages in an action upon an injunction bond is the amount which will compensate the one injured by the injunction for all loss and injury naturally and fairly referable to the wrongful act in obtaining the injunction * * *.
í í ^ S
“Attorneys’ fees necessarily incurred in obtaining dissolution of an injunction wrongfully issued may be allowed in assessing the damages in an action on the injunction bond.”

We find no assignments of error well made. Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

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


author:
      Per Curiam.
     Matthews, J.,

text:
    Scott, Admr., Appellee, v. Marshall, Appellant.
    (No. 200
    Decided May 5, 1951.)

      Mr. John R. Gehrig and Messrs. Nichols, Speidel & Nichols, for appellee.

      Messrs. Ely, White & Davidson, for appellant.
   Per Curiam.

This appeal on questions of law is from a judgment entered on the verdict of a jury for the plaintiff in a wrongful death action wherein plaintiff’s decedent, a little girl nine years of age, rode her bicycle out of the driveway of her home onto state route 131, in Clermont county, directly into the path of an automobile being driven by defendant, and in the ensuing collision received the injuries resulting in her death a matter of hours thereafter.

One of the errors assigned is that the court charged on the assured clear distance. It is claimed the evidence clearly excluded application of that rule from the case.

Starkly stated, the facts, accepting plaintiff’s version, show this to be a case where the little girl, while looking backward over her shoulder, rode her bicycle out of the driveway from behind a bush, which was located in the right angle created by the driveway and highway, onto the highway at the point of impact shown by plaintiff’s plat to be at a point directly in the center line of the driveway, about one foot to eighteen inches onto the traveled portion of the highway, and directly in defendant’s right-hand lane of travel, in which he was proceeding at a speed prima facie lawful.

It is therefore apparent that the decedent’s sudden entrance into such lane of travel cut down the defendant’s assured clear distance ahead and there was no evidence tending to show that plaintiff’s decedent was within such lane of travel a sufficient time or a sufficient distance ahead to make it possible for defendant to avoid the collision.

On the authority of Eraman v. Mestrovich, 155 Ohio St., 85, 97 N. E. (2d), 674, published subsequent to oral argument of this case, it appears from the state of the evidence here that it was error to give the charge predicated on the assured-clear-distance-ahead rule, requiring a reversal of this judgment on that ground. See, also, Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960.

Error is assigned also to the refusal of the trial court to charge on the question of contributory negligence, at the request of the defendant. Plaintiff’s special charge No. 6 had to do with the degree of care required of a child such as plaintiff’s decedent.

The request for this charge by the plaintiff would seem to recognize on the part of the plaintiff the propriety of a charge on contributory negligence of a child such as plaintiff’s decedent.

The answer denies any negligence at all on the part of the defendant, but no issue of contributory negligence is made by the pleadings. Nevertheless, it is well settled that where the question of contributory negligence arises from the evidence, it is the duty of the court to charge thereon. 29 Ohio Jurisprudence, 785, Section 234.

As to contributory negligence of children, it is stated in 29 Ohio Jurisprudence, 739, Section 203:

“In considering the contributory negligence of children upon the trial of a negligence action, two questions are involved. There is first the question whether the child is capable of contributory negligence. As shown above, a child may be of such tender years as to be incapable of contributory negligence. The question whether the child is capable of contributory negligence is ordinarily a question for the jury. # * #
“When a child is of such years that its ability or inability to exercise care for its safety admits of no doubt, the court will decide that question as a matter of law.”

Such, this case appears to be.

It is further stated in 29 Ohio Jurisprudence, 739, Section 203:

“It is the duty of a jury, in determining whether or not an infant was guilty of contributory negligence, to first determine the standard of conduct to which the child is to be held, by giving due consideration to its age, mental and physical development, and environment, and then, having fixed this standard, to measure that which the child has actually done by this standard, and determine whether or not the child has come up to it, or has failed. ’ ’

This court said in Misrach v. Epperson, a Minor, 32 Ohio App., 451, at page 458, 168 N. E., 230:

* * While it is difficult to see how contributory negligence could be attributable to the defendant in error, a boy eight years of age, still it was unquestionably a question to go to the jury under proper instructions, which were given. The plaintiff in error from her own testimony left the impression that this was a ‘dart-out’ case, and certainly a proper instruction on contributory negligence was called for, even though not raised by the pleadings.”

In 38 American Jurisprudence, 884, Section 204, it is stated:

“Generally speaking, children are required to exercise ordinary care to avoid injuries to themselves. * * *
“ * * * The standard by which to measure the conduct of a child, as regards the question of contributory negligence, is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge, and experience, under the same or similar circumstances. ’ ’

29 Ohio Jurisprudence, 524, Sections 84 and 85, states the rule in wrongful death actions to be:

“In actions for death wrongfully caused by the negligence of the defendant, the general rule is that the negligence of the decedent proximately contributing to the injury resulting in death bars recovery in favor of the beneficiaries for the loss they have sustained thereby. Contributory negligence of the administrator or executor, in whose name the action for wrongful death is brought, is not a defense, because he is merely a nominal party, and has no interest in the damages to be recovered. However, the personal representative of the deceased is frequently one of the beneficiaries for whom the action is brought, so that the right of action may be affected by his negligence. There can be no doubt that the contributory negligence of the sole beneficiary, or of all the beneficiaries, for whose benefit an action for wrongful death is brought, constitutes a complete defense thereto. The rule now is that contributory negligence is available as a defense against such beneficiaries as by their negligence contributed to the death of the deceased, but not as against those who were not guilty of such negligence. * * *
í < ruie jn Ohio is that in an action brought by a parent for the loss of the services of his child, by reason of its wrongful or negligent injury by another, the contributory negligence of the parent will defeat his recovery.”

In 38 American Jurisprudence, 892, 893, Section 207, the duty of a parent is stated to be:

“They owe the duty to care for their children who are so young and immature that they cannot care for themselves, and in so doing are bound to exercise such degree of care and prudence to promote their safety, as under all the circumstances, is reasonable and proportionate to the age and intelligence of the children, and to the known dangers, or dangers which might be known by the exercise of due care. The unexplained presence of a child of tender years in a place of danger has been held to indicate negligence on the part of its parents, although such a showing of negligence is ordinarily deemed prima facie rather than conclusive. It is the duty of parents and custodians of children who are non sui juris to use reasonable care to protect them against known hazards incident to their presence on a street or other public way, and to permit or suffer such a child to go or be upon a highway or street unattended may constitute negligence on the part of the parent or custodian, although it does not do so under all circumstances. The question is ordinarily one of fact to be determined in the light of various circumstances, such as the age, capacity, and physical condition of the child, and the amount and character of traffic on the highway or street. ’ ’

The evidence in the instant case is that both parents were absent from the house at the time of this accident, leaving the decedent without parental surveillance and with access to her bicycle, which she was accustomed to riding out into the highway and beyond the bush forming an obstruction to the view at the entrance thereof, and which was removed shortly after the accident.

It, therefore, appears that a charge on contributory negligence, as applied to the duty of the parents, beneficiaries in this case, should be included.

Having stated the grounds for reversal, noted above, we next .consider whether there is substantial evidence of any negligence on the part of the defendant requiring this court to remand the cause for retrial, or whether it becomes the duty of this court to enter final judgment for the defendant. Decision of this question requires analysis of the pleadings and the evidence.

The specifications of negligence in the amended petition are:

“1. While driving said automobile Frank Marshall failed to keep a proper lookout.
“2. Frank Marshall failed to give warning to plaintiff’s decedent of his approach.
“3. Frank Marshall failed to keep said automobile under control, making it impossible for him to stop within the assured clear distance ahead.
“4. Frank Marshall drove at a speed of over forty-five miles an hour, which speed was unreasonable and improper, having due regard for the traffic, surface and width of said highway and for the other conditions then existing.
“5. Frank Marshall failed to operate said automobile with due regard for the safety and rights of others, particularly those of said Phyllis Ann Scott, plaintiff’s decedent.”

No. 3 has been hereinbefore disposed of, and the court finds no difficulty in eliminating No. 4 because of complete failure of proof thereon.

We analyze the evidence with reference to Nos. 1, 2, and 5, although we fail to see circumstances under which any duty to warn (specification No. 2) is either pleaded or proved.

One Jones, plaintiff’s eyewitness, who viewed the accident from a point on the opposite side of the highway, approximately 200 yards distant, testified on direct examination:

“Q. * * * All right, now, tell the jury what you saw. A. Well, I heard the sound of a motor and I looked up—
“Q. * * *. A. to see if it was the Jeep, but it was a LaSalle. I don’t know just what model it was. I saw it coming down the road and about that time I saw the bicycle come out about the same time—
“Q. * * *. A. Then the bumper of the car struck the bicycle; run into the front wheel. The girl seemed to come in and hug the car like as it come on past where it hit her. The fellow driving the car went to the culvert, slowed down, put it in second gear, and proceeded on where I was standing.
“Q. What happened? A. I ran out and hollered at ■ him.
“Q. What did you say? A. I said, ‘Do you know what you have done ? ’
“Q. Then what did you do? A. He proceeded on roughly 100 feet and stopped.
“Q. Did you run over to him? * * *
“Q. And what did you see in reference to this man? A. Both hands were on the top of the steering wheel and shaking; a dazed condition.
“Q. How about his facial condition? A. He didn't have any.
“Q. Were you-talking to him? A. Yes.
‘‘ Q. Did he answer you? A. No, he didn’t.
“Q. What was he doing? A. Just looking straight ahead.
“Q. What was his expression in reference to his eyes? A. Well, he was just staring off into space, as far as I know, looking at some object up the road.
£ £ * # #
“Q. Now, you see here on this blackboard that the position in which I have drawn these objects indicates that the front, or front wheel, of the bicycle is in front of the right portion of the bumper, front bumper, of the automobile, and I’ll ask you, at the moment of impact, is that a correct representation of what you saw? A. Yes, Sir.
“Q. And I’ll ask you further, Mr. Jones, this scene that I have drawn on the right, namely, the moment of impact as you reported took place where with reference to the driveway entrance into state route 131? Did it take place immediately in front of the driveway? A. Yes.
«{* * *
“Q. And was this point of impact, and I have indicated by placing an ‘X’ right where the front, where this car touches the front wheel of the bicycle, was that point of impact, or ‘X,’ where was it with reference to the right-hand side, traveled portion of that road? The macadam surface, that is, looking down toward Milford? How far from the traveled portion; from the edge of it? A. From the edge of the driveway to the road, between a foot or 18 inches.
“Q. How much? A. Between a foot and 18 inches.
“Q. It was a foot, or thereabouts. In other words, it was close to the right-hand side of that road, is that right? A. That’s right.
( ( X 2- *
‘ ‘ Q. Where was the right-hand side of the car at the point of impact? How far from the right-hand traveled portion of the road? A. About a foot.
( C * * *
“Q. And where was this car being driven with reference to the road? Was it in the middle, on the right-hand side, its right-hand side, on the left-hand side? Whereabouts? A. He was traveling in the right lane.
“Q. And I'll ask you did he, at any point, or did he not swerve out of that line before the time of collision ? A. No.
“Q. When was the first time that you observed this car swerving? A. Right after they hit.
“Q. And in which direction did he then swerve? A. To the opposite side of the road.
“Q. And then you say he continued on and didn’t slow down until he was near the culvert? A. He was on the Scott side of the house from the culvert.
i Í * * *
“Q. Now, let me ask you — did he, or did he not stop at that particular point? A. No.
“Q. What did he do? A. He slowed and looked back over his right shoulder.
“Q. You mean he kept sitting in the car? A. Yeah.
“Q. He didn’t leave the car at that particular point? A. No.
“Q. Then what happened after he looked over his shoulder ? A. He put it in second gear and went on up the hill and went past me.
( ( * * *
“Q. Now, you of course say you were at the top of that next hill which, from the drawing on the blackboard, and you say he drove by you when you were standing there ? A. Yes.
“Q. What did you do at that point? When he drove right by you? A. I hollered at him and said, ‘Don’t you know what you have done ?’ "* * *
“Q. And by the time he stopped, where was he? A. About 100 feet past the driveway I rail out of.
“Q. Now, right after he stopped, what did he do then? A. He — his hands were shaking on the wheel and then he started to back up.
“Q. And where did he back up to? A. He backed up just — well, I couldn’t tell you what distance it was, but it was just below where the girl on the bicycle was hit.
* * *
“Q. Did he, or did he not, get out of the car after he parked it there? A. Yes, he got out.
“Q. What did he do? A. He sort of walked around. He didn’t talk to anybody I saw only he had a dazed expression. ’ ’

On cross-examination, the witness testified:

“Q. Mr. Jones, as you were looking down the road, you saw the little girl riding a bicycle out the driveway, as I understand it? A. There’s an area there where I could see the house oh, maybe 8 feet, or 10, of the driveway.
“Q. Was she eating an orange? A. No, I drawed that conclusion after I saw her body. The orange had her teeth marks in it.
“Q. And you did make the statement she was riding out the driveway eating an orange, is that right? A. That was what I surmised from seeing the orange right there with her.
“Q. Had she lost a shoe as she came down that driveway? * * *
“Q. Was she looking back for her shoe as she rode out that driveway? A. That was only my guess that she was.
“Q. And was she looking backward when she rode out onto the highway. A. At the time I first saw her, she was looking back.
“Q. And the ear was coming west at about that time and she rode out into the path of the car, is that what you would say? A. You mean she rode onto the road?
“Q. UhHuh. A. Yes.
“Q. And she struck the car at the right front end? A. The car struck her.
“Q. Did you say that the driver of the car swerved and tried to avoid hitting her but was unable ? A. He swerved after the collision.”

On re-direct examination, he testified:

“Q. Now, I’ll ask you if at any time from the time you first saw the automobile driven by Marshall until the time this impact occurred, you observed or didn’t observe any slackening in speed of that automobile? A. No. There was no slackening of speed.
“Q. When did you first notice variance, in the slackening of speed? A. After the collision, down near the bottom of the culvert.”

And, on recross-examination, he testified:

“Q. Now, you spoke of the orange that was lying by the little girl. Had she been eating the orange? A. It had a bite out of it. ’ ’

The companion eyewitness, Friedrich, testified on direct examination by plaintiff:

“Q. Now, I want you to tell in your own words, Mr. Friedrich, the jury what you saw that afternoon in reference to that accident. Tell the jury in an audible voice, please. A. Well, I was cutting on this limb, on this sycamore. I was taking different limbs off which was interfering with the wires and in doing so I was facing towards Mrs. Scott’s and I noticed a car coming up the road. I didn’t know exact whether it was a car or jeep at the time I noticed it. I was watching to see if it was the jeep because that’s when we quit, and I noticed the little girl was coming out of the driveway and the car hit her and from there I came down out of the tree and ran up the road.
“ Q. Where did this car go after the moment of impact? A. It went on up the road past us.
“Q. Now, did this car stop? A. This car did not stop. It was always moving. It slowed down, but then it backed up.
“Q. When did it slow down? A. At about — well, when it hit the culvert it was doing its slowest speed.
“Q. Did the driver do anything at that place? A. He turned around and looked hack.
6 * * *
“Q. Then what did he do? A. He picked up speed.
“Q. And went where? A. Up to the edge of Mrs. Simms’ property. The edge towards Milford.
“Q. You were working, then, with Mr. Clifford Jones? A. Yes, Sir.
“Q. Where was he situated at the accident? A. At the base of the tree.
“Q. What did he do at the time the car went by? A. He yelled at the man to ask him to stop and ask him if he knew what he had done.
“ Q. When the car stopped, where was it with reference to the tree you were working in? A. 100 feet away.
( Í * * #
“Q. And then what did this car do after it stopped? A. After he, Whitey, told him what he had done, he put it in reverse and went back toward the scene of the accident.
“Q. Now, I have drawn on this blackboard two parallel lines representing state route 131 and down here I have drawn two intersecting lines representing the culvert, Mr. Friedrich, and np here these lines say they represent Mr. Scott’s driveway. Now, I’ll ask yon if at any moment while yon were observing this car coming toward you from the time you saw it whether or not from the time you saw it until the impact occurred, it varied its speed? A. No.
“Q. When did it first change its speed? A. Right after it had the accident.
“Q. I’ll ask you, Mr. Friedrich, if at any moment during the time you first observed this car running into your vision and until the moment of impact whether this car did or did not alter its course? A. It altered its course after it hit the little girl and then it didn’t swerve any too much. It went over the center line about 2 foot.
“Q. And then what did the car do? A. It kept on going down the road.
“Q. Where did he slow up with reference to the culvert? A. He slowed right around the culvert.
( i # * #
"Q. I’ll ask you to describe the scene which you observed at the moment of impact. Where was the bicyele and where was the automobile? A. Well, the bicycle was extending in the road about a foot, you know, or two; something like that, and the car it was running on the right-hand side about a foot from the edge. Something like that.
"Q. And who struck whom? A. The car struck the bicycle.
"Q. Now, what happened after this moment of impact with reference to the bicycle? A. The front wheel of the bicycle was hit and swung back onto the fender and kicked off to the side.
"Q. And where was the bicycle after the impact ? A. Lying on the side of the road.
“Q. How far from the driveway? A. Oh, 20 feet; something like that.
* * *
“Q. How far from the driveway towards the direction of Milford was the body of the girl lying when you saw her? How far down from the driveway? A. Roughly, around 10 or 12 foot.”

And, on cross-examination, the witness testified:

“Q. Now, you speak of the little girl lying on the highway as 10 or 12 feet from the driveway. Are you referring to the center of the driveway? A. I am referring to the driveway itself. That’s what I said, roughly. I don’t know exactly.
“Q. You say 10 or 12 feet? A. Say the edge of the driveway.
“Q. You say 10 or 12 feet from the edge of the driveway? A. Yes.
“Q. And the bicycle about. 10 feet beyond that? A. Roughly. Yes. It’s on an angle up on the bank.
“ Q. I did want to inquire of you — did you see her eating an orange as she was riding out the drive? Did you see an orange? A. No, I didn’t see any orange.
* * *
“Q. Had she lost a shoe as she came out of the driveway? A. Yes, she had lost something. I wouldn’t say it was a shoe, because she was looking backwards.
“Q. She looked backwards, didn’t she? A. She looked back momentarily. I don’t know how long.
“Q. It was your opinion that she was looking back momentarily? A. Yes, it was.
‘ ‘ Q. Did you see her shoe lying in the driveway? A. Yes, we seen it.”

This was all the evidence adduced by plaintiff as to how the accident happened. It will be observed that no testimony whatsoever as to speed is included. At this point, from the foregoing, it would seem that reasonable minds could not differ in that the defendant approached the scene of the collision in a lawful manner as to speed and position on the highway.

The testimony places a japónica bush of approximately six feet overall spread in the right angle created by highway and driveway at a distance of 15 to 20 feet from the traveled portion of the highway, which obscured the view of the driver of vehicles in defendant’s position to that extent.

There remains the testimony of the defendant to be examined in a light most favorable to the plaintiff.

The defendant testified generally that he was familiar with the road and location of the driveway at the scene of the collision; knew the Scotts lived there with their children; and knew children were apt to be on that road in the afternoon. He further testified as on cross-examination:

“Q. Now, isn’t it a fact, Mr. Tischer, or Mr. Marshall, there was only one little bush 5 feet in diameter, or circular growth, in that place that had been cut down? A. I said I didn’t measure it.
“Q. And you mean to tell the jury, Mr. Marshall, that the presence of this little bush 5 feet in size prevented you from seeing anything down this road? A. That bush most certainly hid the driveway next to the road.
‘ ‘ Q. Are you telling us that bush extended from the traveled portion of the road down to 131? A. It came down to the berm.
“Q. Just what do you mean? A. I mean it hid the driveway, blocked from the direction I were going.
a# * &
“Q. Now, Mr. Marshall, with respect to the landscape to the rear of this bush that you talk about in a northerly direction, were there any obstructions between this bush and the end of this driveway? A. .There were not a tree there.
“Q. Where was this tree located? A. Right by that bush.
urn m *
‘ ‘ Q. In reference to the tree, Mr. Marshall, you saw the tree and you know that anything that passed behind this tree could be seen because the bottom branches of this tree were at some distance up from the ground, isn’t that right? A. All I know, I didn’t see the girl until she hit the highway.
“Q. All right. Now we’ll go on from there. Now, where did you first see this girl? A. I was possibly 15 or 20 foot above the driveway when she run out there.
“Q. Where was she when you first saw her? A. Coming out the drive on her bike. After she passed the bush is when I seen her.
“Q. With reference to your automobile, the position of it, at the moment you spotted her, where was she? Was she on state route 131? A. She was coming out the drive toward 131 and I swayed square to the left.
Q. Was she still on the driveway at the moment you saw her? A. I wouldn’t say she was.
“Q. Where would you say she was? A. She possibly could have had the front wheel on the blacktop.
urn * m
“Q. Please tell us where this girl was with reference to the intersection of the driveway with the state route at the first moment you saw her? A. I think I made that clear.
“Q. How’s that? A. I think I have made that clear.
“* * * A. I said she was entering 131 when I seen her.
“Q. Iiow far was her bicycle into 131? A. I don’t know.
“Q. As a matter of fact, you. didn’t see her at all until you hit her, did you, Mr. Marshall? A. I didn’t hit her.
“Q. You didn’t? Tell the jury how this collision occurred? A. She came out there and hit the side of the car. Anybody can see that.
“ Q. All right. Where did she hit the car ? A. Right by the front wheel.
“Q. Did she run into the side of your car? A. Run into the fender.
“Q. And where were you going meanwhile? A. I was coming across the road trying to get away from her.
“Q. And you swayed violently to the left, is that what you want the jury to believe? A. That’s what I did.
‘ ‘ Q. Where did you come to a stop ? A. Right by the mailbox.
i Í * # *
“Q. * * * Now from the moment you saw this little girl, you tell us you swerved your car to the left, is that right? A. I did.
“Q. Did you apply your brakes? A. I did.
“Q. At what rate of speed were you going at that time? A. Between 30 and 35, possibly.
“Q. Now, in what distance did you stop in, according to your story? A. I don’t know.
U * * *
“Q. Where did you commence to apply your brakes? A. I said 15 or 20 feet above the drive.”

On direct examination, defendant testified:

“Q. Frank, as you approached the Scott residence, I’ll ask you if you can tell the ladies and gentlemen of the jury at what speed you were traveling? A. In between 30 and 35 mile an hour.
“Q. And as you approached the residence and drive, I’ll ask you. whether or not your vision of this driveway was,, in any measure, obscured? A. I couldn’t see the drive.
“Q. Speak so the jury can hear you. A. I couldn’t see the drive. It were completely hidden at the approach of the road.
“Q. And Frank, when did you first see the little girl on the bicycle? A. Well, I was possibly 15 or 20 feet of the drive when she rode out back of the bush.
“Q. And what did you do upon seeing the little girl? A. I swerved sharp to the left of the road.
“Q. And what happened, Frank? A. Well, I — -she just run into me.
“Q. In your opinion, did the little girl see you? A. I doubt if she did.
“Q. And where did your car come to a stop? A. Right above the mailbox.”

And, on recross-examination, defendant testified:

“Q. Now, you made the statement that the girl ran into you, is that correct? A. That’s right.
“Q. You are positive about that? A. Well, the marks on the car shows it.
“Q. Please answer the question. Read that last question? [question read] A. I am.
“Q. But you don’t know just how the accident happened, do you? A. Well, she came out the drive and hit the car and that’s as much as I know about it.
“Q. Did you see her at the time of impact? A. I seen her hit the car.
“Q. How did she hit the car? A. She come out on her bicycle, out the drive, and hit the car; the right front bumper.
“Q. Did you see her through the windshield? A. I did.
C i * * #
“Q. Now, you say you are familiar with the Scott driveway; that’s correct, isn’t it? A. I have been past there lots of times. Yes.
“Q. Let me ask yon — yon also say that this driveway is, in your opinion, or was at that time obscured, is that right? A. That’s right. At the .approach of the highway. ’ ’

In general, we state that whether an automobilist has exercised the ordinary care and prudence exacted of him is a question to be determined by the jury under proper instructions. It is an obligation of the driver of an automobile to watch everything and everybody, not only in front of him but on the sides and in the rear of him, so far as possible. 4 Ohio Jurisprudence, 619, 620, Section 30.

In 29 Ohio Jurisprudence, 420, Section 30, the text is:

“In the determination of what constitutes ordinary care, the surrounding facts and circumstances are of controlling significance. The legal duty we owe to others is measured by the exigencies of the occasion. Care must be proportioned to the danger to be avoided. The degree of care to be exercised is determined by the danger to be apprehended. One must use care commensurate with the danger. In other words, speaking generally, what constitutes ordinary care is commensurate with the danger involved. ’ ’

Again, at page 424, in Section 35, it is stated :

“The general rule is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence. An emergency, however, does not change the requirement of ordinary care. A person confronted with a sudden emergency is required to use only that degree of care which, an ordinarily prudent person would exercise under the same or similar circumstances.”

It is the general rule that negligence is never presumed and that the mere fact of an injury does not give rise to any inference or presumption of negligence on the part of either party. On the contrary, the presumption is that each party exercised ordinary care and such presumption obtains until overcome by proof, the burden of which rests upon the plaintiff to show by substantial evidence some negligence on the part of defendant directly or proximately causing the injuries.

What is substantial evidence?

Many attempts at a definition are contained in 40 Words and Phrases, 499, and the 1951 pocket supplement thereto, pages 80, 81, 82.

On page 499 appears:

“* * * ‘Substantial evidence’ on which verdict must be based to preclude Supreme Court from disturbing verdict is evidence which will convince reasonable men, and on which such men may not reasonably differ. Brennan v. Mayo, 50 P. (2d), 245, 248, 100 Mont., 439.
“ ‘Substantial evidence’ on which verdict must be based so as to preclude Supreme Court from disturbing verdict is such as will convince reasonable men who will not reasonably differ as to whether evidence establishes plaintiff’s case. Morton v. Mooney, 33 P. (2d), 262, 265, 97 Mont., 1.”

In the 1951 pocket supplement on page 80 appears:

“Evidence presenting no more than a choice of probabilities is not. Gulf Refining Co. v. Mark C. Walker & Son Co., C. C. A. Tenn., 124 F. (2d), 420, 426; Troutman v. Mutual Life Ins. Co. of New York, C. C. A. Ky., 125 F. (2d), 769, 773.”

And on pages 81 and 82:

“* * * ‘Substantial evidence’ means more than a mere scintilla, and must do more than create a suspicion of existence of the fact to be established, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. U. S. v. U. S. Gypsum Co., D. C. D. C., 67 F. Supp., 397, 451. "***.
“ ‘Substantial evidence,’ within rule that defendant is not entitled to a directed verdict if any charge of actionable negligence is supported by substantial evidence, is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Roth v. Swanson, C. C. A. Minn., 145 F. (2d), 262, 265, 266.”

There is absolutely no evidence in the record placing the girl on the bicycle within view of the defendant prior to her emerging from behind the bush, at a point not over 20 feet from the point of impact.

There is absolutely no evidence bearing on the time and distance within which an automobile proceeding in a lawful manner at a speed not in excess of 35 miles per hour could or should have been halted.

What evidence is most favorable to plaintiff? That defendant saw the girl the instant she emerged from behind the bush, or that he didn’t see her until she was at the edge of the traveled portion of the highway? Does not this evidence present a choice of probabilities lacking in substance and requiring pure speculation as to what defendant might or might not have done in such an emergency? Does it amount to substantia] evidence that defendant failed to keep a proper lookout, or was driving without due regard to the safety and rights of others, particularly the little girl, who burst into his vision on the bicycle, looking backward at a point only 20 feet away from the point of impact?

We do not believe the record contains the substantial evidence of the negligence specified in the petition to require submission of the cause to the jury.

The judgment is, therefore, reversed for the reasons set forth above, with instructions to enter final judgment for the defendant.

Judgment reversed.

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

Matthews, J., concurs in part and dissents in part.

Matthews, J.,

concurring in reversal but dissenting from entering final judgment. I concur in the reversal of this judgment on the ground that the court erred in refusing the request to charge on the subject of contributory negligence on the part of the decedent and her parents who would be the beneficiaries of any recovery for causing her death.

I dissent from the conclusion that there is no substantial evidence of negligence on defendant’s part. There is evidence that the defendant saw this child when she was 20 feet from the road, approaching his line of travel on a bicycle, looking backward, oblivious of his approach; that he gave no warning and did not change his course until after his right front fender struck the front wheel of her bicycle, notwithstanding he was traveling on the extreme right of the traveled portion of the road and could have swerved to the left, which he testified he did, but which another witness testified he did not do.

Furthermore, the conduct of the defendant after the collision was such that the jury might have concluded it was evidence of an admission of fault. He continued on after the collision and only stopped when challenged by a witness about 600 feet beyond the point of collision. Flight has always been regarded as some evidence of fault. Kotter, Admr., v. Lalley, 112 Conn., 86, 151 A., 433. In 31 Corpus Juris Secundum, 1052, Section 291, it is stated that “defendant’s flight from the scene of an accident is tantamount to an admission of responsibility.” This principle has been frequently applied in automobile accident cases. Many such cases are cited in the notes to Section 291, ibid, in the original text and more recent cases in the supplement.

It is my judgment that the cause should be remanded for a new trial.