author: Fess, J.

text:
    The State of Ohio, Appellee, v. Theisen, Appellant.
    (No. 646
    Decided April 13, 1953.)

      Mr. Herbert JR. Freeman, prosecuting attorney, for appellee.

      Messrs. Miller & Miller, for appellant.
   Fess, J.

This is an appeal on questions of law from a judgment of a court composed of three judges, finding the defendant guilty of wilfully making improper exposure of his person in the presence of a child under the age of 16 years and by so doing committing a felonious assault upon her. The defendant was committed to Lima State Hospital for examination and report.

The principal error assigned upon this appeal is that the evidence fails to disclose any act done toward the commission of a battery (Fox v. State, 34 Ohio St., 377), or the menacing or threatening of another, without touching the person.

Section 12423, General Code, provides:

“Whoever unlawfully assaults or threatens another in a menacing manner, or unlawfully strikes or wounds another, shall be fined * *

No distinction is made between assault and assault and battery by the statute, so far as the penalty is concerned. Decisions, however, make it clear that an assault is an unlawful offer or attempt coupled with present ability to inflict an injury upon the person of another, or the threatening of another in a menacing manner, without necessarily touching his person.

Section 13032, General Code, provides:

‘ ‘ Whoever, being eighteen years of age or over, wilfully makes an indecent exposure of his person in a public place or in a place where there are other persons to be offended or annoyed thereby, or utters obscene or licentious language in the presence or hearing of a female, shall be fined not more than two hundred dollars or imprisoned not more than six months, or both. ’ ’

Neither force nor threat is included as an element of the offense. In the title of the sections dealing with assault and battery and indecent exposure, the offense is named, but the name of the offense is not recited in the language of the sections. Simple assault and indecent exposure in a public place are misdemeanors, but in 1921, Section 12423-1, General Code, was enacted, and, as amended in 1946, provides:

“Whoever, being a person over the age of eighteen years shall assault a child under the age of sixteen years, and shall wilfully take indecent and improper liberties with the person of such child, without committing or intending to commit the crime of rape upon such child, or wilfully make improper exposures of his person in the presence of such child, shall be deemed guilty of felonious assault, and on conviction thereof shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned in the penitentiary not less than one year nor more than ten years or both such fine and imprisonment in the discretion of the court.”

This section denounces as a felony (1) wilfully taking indecent and improper liberties with the person of a child under the age of sixteen years, and (2) wilfully making “improper exposures of his person” in the presence of such child. The section designated the offense as “felonious assault.” In its wisdom, the Legislature evidently regarded indecent exposure in the presence of a child as a more heinous offense than an assault or indecent exposure in a public place. What the Legislature may have called the offense does not detract from the plain language of the statute, and the designation of the crime is immaterial in construing the legislative intent. The words, “shall be deemed guilty of felonious assault, and on conviction thereof,” could be stricken from the section without impairing its force and effect. The use of the term, “felonious assault,” neither adds nor detracts from the offense. Therefore, it is concluded that upon proof beyond a reasonable doubt that an accused made improper exposure of his person in the presence of a child under 16 years of age, he may be fined or imprisoned as provided by the statute, regardless of proof of any additional overt act.

Since we find no error prejudicial to the defendant, the judgment is affirmed, and the cause: is remanded to the Common Pleas Court for further proceedings.

Judgment affirmed,

Conn and Deeds, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The State, ex rel. Moore, v. Alvis, Warden.
    (No. 4798
    Decided May 18, 1953.)

      Mr. William B. Brofman and Mr. Joseph J. LoPresti, for petitioner.

      Mr. C. William O’Neill, attorney general, and Mr. Thomas B. Lloyd, for respondents.
   Per Curiam.

The petitioner instituted an action in habeas corpus in this court, seeking to be released from the Ohio Penitentiary. Petitioner was indicted for murder in the first degree. A plea of “not guilty” and “not guilty, by reason of insanity” was entered at the time of arraignment. The court appointed counsel to represent the petitioner, and ordered him committed to the Lima State Hospital for observation. The court held no hearing and made no order respecting the sanity of petitioner. Five months later, the petitioner and his counsel appeared in open court and represented to the court that petitioner desired to withdraw his former plea and enter a plea of guilty to a charge of second degree murder on condition that the charge of murder in the first degree would be nolled. This was recommended by the prosceutor, and accepted and approved by the court. To the charge of first degree murder, an order of nolle prosequi was entered. A plea of guilty to second degree murder was entered, and the petitioner was sentenced.

The journal entry shows a withdrawal of the plea of “not guilty” but fails to recite that petitioner withdrew his plea of “not guilty, by reason of insanity.” Petitioner now contends that the court was without jurisdiction to sentence him, there having been no hearing as contemplated by Section 13441-1, General Code, and no finding on the part of the court that the petitioner was sane. Section 13441-1, General Code, applies where it is claimed the defendant is “then” insane. Such is not the situation here. Sections 13441-3 and 13441-4, General Code, have no application, since the petitioner was never brought to trial under Section 13441-3, General Code.

The withdrawal of a plea is a well-recognized practice in Ohio, and lies within the sound discretion of the court. 12 Ohio Jurisprudence, 262 to 264, Sections 249, 251.

We have before us a complete record of the proceedings which took place in open court at the time the plea was withdrawn and a new plea entered. Unquestionably, the record discloses that the plea of “not guilty, by reason of insanity” was legally and properly withdrawn with court approval. Counsel for petitioner was careful to advise the trial court that this plea, as well as the plea of “not guilty,” was withdrawn. The court had jurisdiction to proceed to sentence the petitioner on the new plea. The judgment entry does not completely recite the action of the trial court, and should be modified by a nunc fro tunc order.

Since we find that the court had jurisdiction in the criminal prosecution, the petitioner is not entitled to be released from custody.

Petitioner remanded to custody.

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


author: Hildebrant, J.

text:
    The State, ex rel. The Hauser-Stander Tank Co. et al., v. Kellogg, City Manager, et al.
    (No. 7743
    Decided June 29, 1953.)

      Messrs. Cors, Scherer, Hair é Hartsock and Mr. Louis J. Schneider, Jr., for relators.

      Mr. Henry M. Bruestle, city solicitor, and Mr. Edgar W. Holts, for respondents.
   Hildebrant, J.

In this action in mandamus, relators seek to compel the issuance of a building permit for the installation of a wooden water tank on the top of the Fountain Square Hotel in downtown Cincinnati.

Respondents refused the permit for the reason that the proposed installation does not meet the requirements of the Building Code of the city of Cincinnati.

All parties agree that the Fountain Square Hotel is located in the inner fire district and is classified as a type 1 building, requiring the highest type, fire resistant construction.

Relators claim Section 2830 of the Building Code provides that the design, construction, installation, and maintenance of tanks shall be in accord with the Regulations of the National Board of Fire Underwriters, and that their proposed installation complies therewith and is, therefore, authorized by the code.

Respondents point out that Section 1109 provides that such approved regulations as adopted are effective except when they are not in conformity to some other provision of the code, and that Sections 1600, 1610 and 1612 of the Building Code classify types of buildings by their location and require of type 1 buildings the highest fire resistive construction, which requirement the wooden tank fails to meet.

Relators contend that the proposed tank is not a building as defined in Section 1200-10 of the Building Code, subject to the fire resistive conditions.

Section 1200-10 provides:

“ ‘Building.’ Any construction built or used for the shelter or enclosure of persons, animals or chattels, and any part of such construction divided by required fire separations. The term ‘building’ shall be construed as if followed by the words ‘or structures or part thereof.’ ”

It, therefore, appears that the wooden tank is such a structure as to be included in the above definition.

In seeking to control or compel the action of an administrative officer and board within the limits of the jurisdiction conferred by law, in the absence of proof to the contrary, it will be presumed the action taken to have been done in good faith and sound discretion. We find no proof to the contrary in this record.

In their interpretation of the applicable sections of ■ the Building Code, even though justifiable differences of opinion may exist as to application of the various sections, mandamus will not lie to control the official discretion unless it clearly appears that the refusal to issue the permit is an abuse of such discretion. See State, ex rel. Wilms, v, Blake et al., Indus. Comm., 144 Ohio St., 619, 60 N. E. (2d), 308.

Relators’ claim that the code itself is violative of the Constitution appears to the court to be untenable.

Upon the record, the court finds on the issues joined in favor of the respondents, and the writ is denied.

Writ denied.

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


author: Hornbeck, P. J.

text:
    The State of Ohio, Appellee, v. Gutilla, Appellant.
    (No. 4764
    Decided October 17, 1952.)

      Mr. Richard W. Gordon, city attorney, and Mr. Glenn E. Kemp, for appellee.

      Mr. Isadore L. Margulis, for appellant.
   Hornbeck, P. J.

This is an appeal from a judgment of the Common Pleas Court affirming a conviction and sentence of defendant, appellant herein, on a charge, in the Municipal Court of the City of Columbus, Ohio, of violating Section 12694, General Code (practicing medicine without a certificate).

Four errors are assigned but all of them relate to the claim that the defendant was convicted by testimony which disclosed that he had been entrapped and thereby caused to commit the offense of which he was convicted.

We have carefully read the entire record and, without extended comment, are satisfied to say that it does not establish entrapment. It appears that the policewoman, who was treated and prescribed for by defendant, planned with an officer of the State Medical Association to call upon defendant for the purpose of securing evidence against him. She represented herself to be ailing although she was well. By this means she secured the evidence upon which defendant was convicted. The defendant did not take the stand to testify that he had no purpose or intent to commit the offense alleged and it clearly appears that he did the acts which constitute a violation of the section. This does not constitute entrapment in Ohio. State v. Henning, 83 Ohio App., 445, 78 N. E. (2d), 588 (appeal as of right dismissed, 150 Ohio St., 48, 80 N. E. [2d], 164); Davis v. State, 26 Ohio App., 340, 159 N. E., 575 (affirmed 118 Ohio St., 25, 160 N. E., 473); State v. Schubert, 80 Ohio App., 132, 75 N. E. (2d), 216; State v. Foster, 75 N. E. (2d), 214.

The principle controlling is stated as follows in 12 Ohio Jurisprudence, 80, Section 38, and is from an annotation in 18 A. L. R., 146:

“Where the doing of a particular act is a crime, regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused, and the criminal offense is completed, the fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense.”

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Phillips, J.

text:
    Alexander, Appellee, v. Greenfield et al., Appellants.
    (No. 3345
    Decided June 9, 1951.)

      Messrs. Modarelli & Modarelli and Mr. C. J. Hoyt, for appellee.

      Messrs. Falls, Hazel <& Kerr, for appellants.
   Phillips, J.

In this opinion the parties are called plaintiff and defendants. Defendant Goldie Greenfield, now Goldie Greenfield Mayer, will be designated as Goldie Greenfield.

Defendants appealed to this court on questions of law and fact from a judgment of the Court of Common Pleas, entered upon the finding of a judge thereof, against the defendants in an action for specific performance of an agreement based upon an alleged option to purchase real estate.

The case was submitted to us on a transcript of the testimony taken by a referee duly appointed by this court and the report of his findings of fact and conclusions of law.

Plaintiff contended by pleadings, evidence, argument and brief that upon payment of the stated consideration of one dollar, defendant Goldie Greenfield, then unmarried, gave him the exclusive right to purchase the real estate described in a written option dated August 8, 1945, for $9,000 prior to June 15, 1946; that at such time, if the option was exercised she would vacate such premises unless it was agreed mutually that she could remain longer; and that upon completion of a sale of such premises to plaintiff, she would execute and deliver to him a warranty deed as evidence of such sale and purchase.

Likewise by pleadings, evidence, argument and brief defendants contended that the optioned property was acquired in 1941 in the name of defendant Goldie Greenfield in trust for her mother and father, Rosa and Daniel Greenfield, of which trust plaintiff had personal knowledge; that Goldie Greenfield, as trustee, held legal title to the premises from November 15, 1941, until October 21, 1945, after which Rosa Greenfield (the mother), an incompetent, held both legal and equitable title; that Rosa Greenfield, her heirs and estate were not bound by the option signed by Goldie Greenfield on August 8, 1945; that plaintiff acquired nothing thereunder except an offer of sale from Goldie Greenfield, who had no right to sell; that Rosa and Daniel Greenfield, having died since the execution of such option, it is unenforceable for that reason, and for want of mutuality; that plaintiff is not entitled to specific performance because of failure of proof of tender of the balance of the purchase price of such real estate; that defendant Goldie Greenfield gave him no justification to claim that it was futile for him to make such tender; that defendants can not comply with an order of specific performance because of the death of Rosa and Daniel Greenfield; that the estate of Rosa Greenfield, included in the assets of which is the real estate in question, is in the process of administration in the Court of Probate of Mahoning County; and, finally, that to order specific performance as prayed for would violate the rules of equity.

We learn from the evidence that Goldie Greenfield and her sister, Josephine Glassman, were the only children of Daniel and Rosa Greenfield; that Rosa Greenfield, when nearly seventy years old, in September 1944 and June 1945, suffered strokes of apoplexy as the result of which she could not speak and had little mentality; that thereafter, in April 1948, by reason of Rosa Greenfield’s condition, Goldie Greenfield was appointed her guardian; that upon the death of Rosa Greenfield, Josephine Glassman was appointed administratrix of her estate in 1947, by the Court of Probate of Mahoning County, which estate is in the process of admmistration now; that title to the real estate in question, which, upon the death of Rosa Greenfield, descended to Goldie Greenfield and Josephine Glassman (subject to land sale proceedings and payment of debts), was taken by Goldie Greenfield on November 3, 1941, for $7,850, and financed by loans of $500 from the Mahoning National Bank, $2,800 from her mother’s sister, and $4,500 from the Home Savings and Loan Company, secured by mortgages signed by defendant Goldie Greenfield; that the property was subsequently refinanced and a mortgage executed to a bank in Warren, Ohio; and that on August 21, 1945, Goldie Greenfield deeded such real estate to Rosa Greenfield, who, on February 19, 1946, deeded it back to Goldie, who, on June 4, 1946, again deeded it to Rosa.

Defendants testified that they exchanged deeds upon advice of their counsel, Peter B. Betras, who represented them in a proceeding before the Industrial Commission on a claim for injuries to Daniel Greenfield, but who does not represent them in this case, and that as the status of that proceeding changed, they changed the title to such real estate.

From the evidence submitted to us for review, we conclude that the option dated August 9, 1945, was a valid agreement which plaintiff exercised, and that plaintiff attempted to close the transaction and tendered the purchase price thereof to defendant Goldie Greenfield, who refused to comply unless she and her mother could live in such property at a rental she stipulated so long as her mother lived. Plaintiff refused to agree to such proposition, which created a situation excusing plaintiff from further effort to close the transaction or from tendering payment of the purchase price thereof or from requesting a deed. We conclude further that the evidence is insufficient to impress a trust upon the property in question in favor of Rosa Greenfield.

Bottomed upon the evidence in this case, in our opinion the case of George Wiedemann Brewing Co. v. Maxwell, 78 Ohio St., 54, 84 N. E., 595, disposes of defendants’ defense of want of mutuality. In the syllabus of that case, the Supreme Court said:

“Written agreements known as options are not necessarily void for lack of mutuality, and where accepted within the time specified may become valid and enforceable contracts. Nor are they rendered invalid by the fact that the acceptance by the promisee is verbal and not in writing. Such assent may be shown by parol.

“The general rule is that a party seeking specific performance of a contract must show performance on his part, yet there are clearly defined exceptions and one of them is that when the other party repudiates and makes it certain that he does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform his part communicated to the other party and accompanied with a demand of compliance by such other party, is sufficient compliance without an actual formal tender.”

Plaintiff made no tender of the purchase price of the property to defendant Goldie Greenfield prior to June 15, 1946, because when he advised her he was exercising his option, she imposed the additional obligation upon the exercise of the option, which made such tender futile or vain.

Having found that the evidence was insufficient to impress a trust upon the optioned property in favor of Rosa Greenfield, obviously no trust of which plaintiff could have knowledge existed, which disposes of defendants’ defense that plaintiff had personal knowledge of the existence of such trust, and that, therefore, the option is unenforceable.

In his report the referee concluded, and in that conclusion we concur:

“That Rosa Greenfield, from June, 1945, prior to the option being signed, until her death in 1947 had no knowledge whatsoever of the execution of the option nor of any of the transfers by deed either to her by her daughter Goldie or from herself to her daughter Goldie; and that the same is true of Mrs. Glassman; that the deed from Goldie Greenfield to her mother Rosa, October 21, 1945, was a legal transfer even though Rosa was at the time mentally incompetent. The rule is stated in Corpus Juris, Volume 32, ‘Insane Persons,’ page 725, Section 490, which holds:

“ ‘An insane person may take property by inheritance or by deed, at least when the instrument does not impose a burden or obligation on the grantee.’

“The rule is also stated in Corpus Juris, Volume 18, ‘Deeds,’ page 416, Section 494, which states the rule as follows:

“ ‘The execution, acknowledgment, and delivery of a deed to the grantee raise the presumption of an acceptance of the instrument by him. Actual receipt, however, of a deed by the grantee is not essential to an acceptance by him, but a constructive delivery may be established by whatever affords a presumption of his acceptance thereof. So the acceptance by a grantee of a deed which has been executed for his benefit may be presumed. This is particularly true of deeds to persons under disability. ’

“The referee concludes that the deed from Rosa Greenfield to Goldie Greenfield in February, 1946, was not valid as Rosa Greenfield did not have the mental capacity to be a grantor; that the record title of the property in question at the time of Rosa’s death, who died intestate, was in Rosa Greenfield; and that title to said property at time of the death of Rosa passed to Goldie Greenfield and Mrs. Glassman, her only children.

“Rosa Greenfield by reason of her mental incapacity had no knowledge of the option executed August 8, 1945, neither did she have any knowledge or comprehension of the deed to her in August, 1945, nor of her deed to Goldie in February, 1946, nor of a deed from Goldie to Rosa in June, 1946. There is no evidence tending to show that at the time of the execution of the option in question Mrs. Giassman had any knowledge of the same nor that she knew of the transfers by deed just referred to.

“The referee is of the opinion that Mrs. Giassman cannot be required by a decree of specific performance to execute a deed to plaintiff-appellee of her half interest in the property; and the referee further concludes that he cannot compel Mrs. Giassman, as administratrix of the estate of her mother Rosa, to execute a deed on behalf of the estate of Rosa, even though a decree in specific performance could require Goldie Greenfield Mayer to transfer her one-half interest because it is by reason of her wrongful acts that plaintiffappellee has been placed in his present position.

“The petition in this case was filed January 10th, 1947, and the then party defendants were Goldie Greenfield and Goldie Greenfield as guardian of the estate of Rosa Greenfield. Alexander, the plaintiff in that petition, alleged specifically as to the three transfers which had been made of the property, to-wit: the deed from Goldie to her mother in 1945; the deed from Rosa Greenfield to Goldie in 1946; and the deed from Goldie to her mother in 1946; so that the plaintiff at the time of the filing of his petition had full and complete knowledge of the fact that title had passed from Goldie Greenfield.

“The referee believes the rule in Ohio to be as follows : that if plaintiff at the time of filing his action in specific performance knows that the vendor has placed title of the property in question in another, the court in the event he is unable to decree specific performance will not retain the case for assessment of damages but will relegate plaintiff to an action at law: Falkenstein v. Gaffney, 2 Ohio Law Abs., 662; and Fisher-Barkdull Farm Agency v. Creager, 26 C. D., 299, 25 C. C. (N. S.), 95.

“The referee concludes by finding that there is an impossibility of specific performance by reason of the fact that when plaintiff filed his petition herein he had knowledge of the transfers in question.”

“The courts will not undertake to enforce the performance of an impossible task. For example, specific performance will not be decreed of an agreement to convey property which has no existence, or to which the defendant has no title.” 37 Ohio Jurisprudence, 62, Section 47.

“Since a court of equity will not do a useless thing or make a nugatory decree, specific performance will not, as a rule, be decreed against a vendor who is unable, for want of title, to comply with his contract; and this is true, even though the want of title is caused by the defendant’s own act — as by his conveyance to a bona fide purchaser.” 37 Ohio Jurisprudence, 63, Section 48.

“Another reason assigned, and pleaded as a defense by defendants, why specific performance cannot be decreed is that on February 25, 1938, defendant Paul Harsch, Jr., for defendant Lelia Close Harsch entered into a lease of the premises in question to one J ohn S. 0 ’Connell for a term of fifteen years without notice or knowledge on O’Connell’s part of any right, title or interest of plaintiff therein. That such lease was made is not disputed, and no evidence indicates that 0 ’Connell, who is not a party to this suit, knew anything about the plaintiff’s contract.

“These facts being established, they preclude a decree for specific performance, even though the defendants may have deliberately put the title of the property in such shape that they cannot now carry out any contract with plaintiff. Any right it may have or claim for the breach of its contract will have to be pursued in an action at law for damages. 25 Ruling Case Law, 245, Section 48; Halsell v. Renfrow, 202 U. S., 287, 292, 50 L. Ed., 1032, 26 S. Ct., 610; Morris v. Curtin, 321 Ill., 462, 152 N. E., 210; Harris v. Nelson, 331 Ill., 225, 162 N. E., 833; Coleman v. Dunton, 99 Me., 121, 58 A., 430; Davenport v. Latimer, 53 S. C., 563, 31 S. E., 630; Davis v. Winter, 168 Md., 613, 178 A., 604; Cattell v. Jefferson, 60 App. D. C., 261, 51 F. (2d), 317.” Herley, Inc., v. Harsch, 61 Ohio App., 260, 263, 22 N. E. (2d), 515.

See, also, Capretta v. Capretta, 33 Ohio App., 232, 168 N. E., 857.

Notwithstanding that the final recommendation of the referee was favorable to the defendants, they filed the following exceptions to the report of the referee “for the purpose of raising with this court various questions of law which the referee decided against def endants-appellants ’ ’:

“1. That the finding and conclusion of the referee to the effect that the option in question was properly exercised is contrary to law and the evidence.

“2. That the referee erred in holding that exercise of the option and acceptance of an offer to sell real estate may be shown by parol evidence.

“3. That the referee erred in failing to apply the rule of mutuality of obligation and in failing to apply the statute of frauds.

“4. That the finding of the referee to the effect that the evidence is insufficient to impress a trust upon the property in question in favor of Rosa Greenfield is contrary to law and the evidence.

“5. That the referee erred in failing to deny specific performance on the ground of want of mutuality of obligation.

“6. That the referee erred in finding plaintiff exercised said option when in fact no agreement as to rent and occupancy as therein provided was ever agreed upon.

“7. That the referee erred in failing to deny specific performance on the ground of well recognized rules of equity. ’ ’

Likewise, plaintiff filed a motion for a new trial and the following exceptions to the report of the referee:

“1. That the conclusions of law of said referee are erroneous.

“2. That the conclusions of law arrived at by the referee are not applicable to the findings of fact of the referee.

“3. That the referee erred in finding upon said facts that the plaintiff-appellee was not entitled to maintain this action for specific performance.

“4. That the referee erred in finding in favor of defendants-appellants and against plaintiff-appellee, and that the finding of said referee should have been for plaintiff-appellee.

“5. For other errors of law occurring at the hearing to which exception was duly taken. ’ ’

Obviously, from what has been said in this opinion, the exceptions of both parties are overruled, as is plaintiff’s motion for a new trial, and the recommendations of the referee are adopted in all respects.

Plaintiff’s petition is dismissed at his costs.

Judgment accordingly.

Griffith, J., concurs.

Nichols, P. J., concurs in the judgment.


author: Conn, J.

text:
    Hueter, Appellant, v. Binduchowski et al., Appellees.
    (No. 4666
    Decided January 26, 1953.)

      Mr. Matt Kolb, for appellant.

      Messrs. Boggs, Boggs & Boggs, for appellees.
   Conn, J.

At the close of plaintiff’s evidence, the defendants, appellees herein, moved the trial court for a directed verdict, which motion was granted. Plaintiff has appealed to this court on questions of law.

Plaintiff sought to recover on a promissory note and to foreclose a mortgage given to secure its payment. The petition contains two causes of action. In the first, plaintiff set up the promissory note and prayed to recover an alleged amount due thereon. In the second, plaintiff alleged that defendants executed and delivered their mortgage deed securing the payment of such note, and prayed for foreclosure of same.

Defendants in their joint answer denied the allegations in plaintiff’s petition; and for further answer set up three affirmative defenses designated first, second and third defenses. In the first defense, defendants averred that, if their signatures appear upon the note, they were obtained fraudulently, and that such note and mortgage are wholly without consideration.

For their second and third defenses, defendants averred that plaintiff is not a holder of such note in good faith and for value, and that the note and mortgage were materially altered after being signed by defendants. The several defenses were denied in the reply of plaintiff.

Error in sustaining defendants ’ motion for a directed verdict and entering judgment thereon are assigned by plaintiff and largely relied on by him. Error in the rejection and admission of certain evidence is also assigned. In view of the conclusion we have reached, this case may be retried later; and it becomes unnecessary to discuss this latter assignment, other than to say that in our opinion all evidence submitted tending to show consideration is relevant and admissible.

At the conclusion of plaintiff’s case, the evidence that had been introduced embraced a wide field and was quite largely defensive in character. The record discloses that on or about October 14, 1926, the defendants purchased a dwelling house known as 3611 Torrance Drive, Toledo, Ohio, from The Hueter Realty Company, a corporation of which plaintiff is president and principal stockholder. The purchase price was approximately $7,500, which defendants agreed to pay in the manner following: by assuming the payment of a first mortgage of $3,250 on the real estate, dated July 31, 1926; by assuming also a second mortgage thereon, in the principal amount of $1,200 bearing the same date; by executing a third mortgage on the property to secure defendants’ promissory note of $2,-385.20; and, also, by paying cash in the approximate amount of $280 and giving an unsecured promissory note payable to plaintiff for the sum of $351.44.

The evidence shows also that the second and third mortgages and the promissory notes secured by such mortgages were pledged to the American Bank of Toledo, Ohio, along with other collateral security, to secure the payment of a large loan made by that bank to plaintiff and his wife. The unsecured promissory note of defendants, given to plaintiff as above mentioned, was discharged on a settlement basis. Defendants made payments on the several mortgages from time to time, but it is inferable from the record that the payments so made were mainly applied on interest.

On or about November 16,1934, the defendants, with the assistance of plaintiff, refinanced the mortgage indebtedness on their property by negotiating a first mortgage loan from the Home Owners Loan Corporation in the principal sum of $3,520. As a part of this transaction, the first, second and third mortgages on defendants’ property were released, and the notes secured by these mortgages were paid and satisfied.

The evidence tends to show that a substantial part of the mortgage indebtedness of defendants, hereinbefore referred to, remained unpaid at the time the loan from the Home Owners Loan Corporation was negotiated; that the amount due on the second and third mortgages was in excess of $1,800; that plaintiff arranged for the release of these two mortgages and the satisfaction and payment of the notes as security for which such mortgages were executed and delivered; and that, thereupon, these notes and mortgages thus released and discharged were delivered to the agent of the Home Owners Loan Corporation for the benefit of defendants and to enable them to consummate their new loan.

The evidence and inferences that arise therefrom tend to show also that the note and mortgage on which this action is grounded were executed and delivered by defendants in order to attain the refinancing of the indebtedness on their property.

The parties have devoted much time in oral argument and by brief to the question of the burden of proof. The defendants contend that on the issues raised on defendants’ answer, “plaintiff has the affirmative of the issue and the burden of proof rests upon him at every stage of the case to show a consideration for the note by a preponderance of the whole evidence adduced in the trial.” The case of Ginn, Admr., v. Dolan, 81 Ohio St., 121, 90 N. E., 141, 135 Am. St. Rep., 761, and others cited appear to support this contention.

There is a pertinent comment on the case of Ginn, Admr., v. Dolan, supra, by Judge Williams in State, ex rel. Herbert, Atty. Genl., v. Hoff, 140 Ohio St., 236, 239, 42 N. E. (2d), 990, which we quote:

“Likewise the case of Ginn, Admr., v. Dolan, 81 Ohio St., 121, 90 N. E., 141, is instructive upon the question presented. Plaintiff sued defendant on a promissory note; thereupon the latter pleaded want of consideration. This court held that the burden of proof as to that issue was on the plaintiff at every stage of the case. The parallel is close. In such, a case the plaintiff may rest without offering any evidence to prove consideration for reasons which are obvious. A promissory note imports consideration and when execution and delivery are admitted or shown and the note offered in evidence, a prima facie case is made out. The burden to go forward with respect to the defense of want of consideration is upon the defendant but the burden of proof rests continuously upon the plaintiff.”

However, it is quite clear that defendants’ motion for a directed verdict made at the close of plaintiff’s case presented no issue requiring the trial court to determine upon whom the burden of proof rested or to weigh the evidence. On the other hand, the established rule of procedure in this state required the trial court, in passing on the motion for a directed verdict, to give all credible evidence offered by plaintiff and all reasonable inferences that may be drawn therefrom a construction most favorable to plaintiff. If, upon such consideration, a jury issue is presented, or if the plaintiff has made a prima facie case, the motion must be overruled. Purdy, Admr., v. Kerentoff, 152 Ohio St., 391, 89 N. E. (2d), 565; Cassidy v. Ohio Public Service Co., 78 Ohio App., 221, 69 N. E. (2d), 648; and 39 Ohio Jurisprudence, 802, Section 183.

In the instant case, the note sued on was identified and introduced in evidence. The record discloses credible evidence of its execution, delivery and subsequent transfer to plaintiff. Pursuant to the provisions of Section 8129, General Code, this made a prima facie case that the note was “issued for a valuable consideration,” and that the defendants became “parties thereto for value.” In addition to the presumption of consideration raised by the statute, plaintiff introduced evidence tending to show consideration for the note sued on moving from him to defendants by reason of the satisfaction and release of the second and third mortgages and promissory notes, the payment of which they secured.

Section 8130, General Code, defines value as “any consideration sufficient to support a simple contract.” Under this statute, consideration may be benefit to the promissor or detriment or loss to the promisee. In the case before us, it appears there was benefit moving to defendants and, also, detriment or loss sustained by plaintiff. Fowler v. Smith, 24 Ohio App., 324, 156 N. E., 913; Bayer v. Sanford, 81 Ohio App., 145, 78 N. E. (2d), 67; In re Estate of Kennedy, 82 Ohio App., 359, 80 N. E. (2d), 810.

Section 8133, G-eneral Code, expressly provides that absence of consideration “is a matter of defense.” This provision of the Code has been so applied. Darby v. Chambers, 70 Ohio App., 287, 46 N. E. (2d), 302.

Construing the evidence offered by plaintiff and such inferences that arise thereon most strongly in his favor, we reach the conclusion that plaintiff had made out a prima facie case at the conclusion of his evidence. The issue of fact thus raised presented a jury question, and it was incumbent on the trial court to overrule defendants’ motion for a directed verdict.

Judgment reversed and, cause remanded.

Fess and Savord, JJ., concur.


author: Fess, J. Conn, J.,

text:
    Lakatos, Appellant, v. Industrial Commission of of Ohio, Appellee.

      (No. 4648
    Decided November 17, 1952.)

      Mr. Samuel Z. Kaplan and Mr. Harry P. Hood, for appellant.

      Mr. C. William O’Neill, attorney general, Mr. Chalmers P. Wylie and Mr. George H. Fell, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment for the defendant, entered notwithstanding a verdict in favor of the plaintiff. Plaintiff’s decedent had suffered from an asthmatic condition for some three or four years prior to his death. In January 1945 he was operated on for inguinal hernia and appendicitis. Upon examination of the plaintiff’s decedent on April 6, 1945, the physician reported that he was 58"years old; that he weighed 140 pounds; that his heart and lungs were healthy; and that he was in condition for work.

Plaintiff’s decedent had been employed by the Libbey-Owens-Ford Glass Company from April 9 to May I, 1945. He first worked on an individual machine where he remained several days while learning the operation sufficiently to be assigned to the production line. He then worked on a wire brushing machine for about a week. He complained to his foreman that the job was too hard and too fast for him. Other employees complained also that that job was too fast and too dirty for them. Plaintiff’s decedent was then transferred to the sand blast operation, which was an easier job on the conveyor line. On or about April 23, he complained that he did not feel well and asked to go home. He looked pale, tired, and haggard, and appeared to be sick. He went home where his wife observed that he was very weak and pale, rested for a long while before he cleaned up, did not eat much dinner, and retired at 9 p. m. He remained at home for three or four days and then went back to work for a couple of days. On May 1 he went to work but could not get started and returned home. He did not return to work again prior to his death.

On May 7,1945, he consulted a physician. Although he gave no history of occupational difficulty, he complained of weakness, lack of appetite and vomiting. X-rays disclosed a duodenal ulcer and asthma. X-rays taken on July 9, 1945, disclosed considerable increase on both sides of the chest, with some nodulation present. Sputum tests were negative. On the day prior to his death, his physician found him sitting up in bed, short of breath and with his pulse weak but rapid. Digitalis was prescribed. The certificate of his death, which occurred on January 21, 1946, gave as the immediate cause thereof “chronic myocarditis of two weeks’ duration, due to asthma of three or four years duration.” Plaintiff’s evidence tended to show that the decedent was subjected to over-exertion and strain on the job. A fellow workman said that while decedent was on the line “he was leaving too much glass for the backman go by and they put him in the back there, and so the guys would holler at him and he tried to keep up and he couldn’t do it no more no matter how he tried.” It is apparent that this testimony related to the week during which the decedent was engaged in the brushing operation. The expert medical witness for plaintiff testified, in answer to a hypothetical question, that there was a causal relationship between the incident described on April 23, 1945 (when decedent was on the sand-blasting operation), and the resultant death on January 21, 1946, on the premise that the facts “would indicate that the decedent was subjected to industrial strain because of the job that was too hard and too fast for him, with ensuing aggravation of this previous asthma, and subsequent development of myocarditis, due to this aggravation and subsequent death.”

The evidence fails wholly to disclose any injury accidental in origin sustained during' the employment. But does the evidence disclose an injury accidental in character and result arising because the job was too difficult for the decedent?

By the weight of authority throughout the United States, in order to recover, a claimant must suffer either a traumatic injury in the course of his employment or the sudden and unexpected breaking of the internal organs of his body or the failure of some essential function, brought about by his exertions while engaged in his work. The former is accidental in origin, and the latter is accidental in character and result. But it is the sudden and unexpected stroke or heart failure which gives the occurrence the attribute of being accidental in character and result. Even though the workman may have been suffering from a pre-existing disease or infirmity, which constitutes a predisposing cause, an internal injury which is sudden, unusual, and unexpected is nonetheless accidental in character because its external cause is part of the victim’s ordinary work. 58 American Jurisprudence, 756, Section 255.

In Ohio, prior to the redefinition of the word, “injury,” in 1937 (117 Ohio Laws, 109), the term comprehended a physical or traumatic injury, accidental in its origin and cause; the result of a sudden happening occurring by chance, unexpectedly and not in the usual course of events at the time. But even prior to the 1937 amendment, some Ohio courts in interpreting the phrase, “accidental in its origin and cause,” construed it to include injuries accidental in character and result. The Supreme Court had recognized as compensable injuries accidental in result where no accidental circumstance preceded or caused them. Malone v. Industrial Commission, 140 Ohio St., 292, 297 to 299, 43 N. E. (2d), 266. In the Malone case the court redefined the term as follows:

“The term ‘injury’ as used in the Constitution and in Section 1465-68, General Code (117 Ohio Laws, 109), as amended effective July 10, 1937, comprehends a physical or traumatic damage or harm, accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place. ’ ’

However, in the Malone case the court went on to say, in the third paragraph of the syllabus, the following :

“When an employee, by reason of the activities, conditions and requirements of his employment, is subjected to a greater hazard than are the members of the general public, and he is accidentally injured thereby, a causal connection between the employment and his injury is established. ’ ’

Under the third branch of the syllabus, it may well be contended that any employee engaged in a particular occupation is subjected to a greater hazard than are the members of the general public and that if he suffers any disability accidental in character and result, a causal connection between his disability and his injury is established. The language employed in the syllabus necessarily must be interpreted in the light of the facts in the case. Malone suffered an attack of acute indigestion induced by excessive heat in the foundry where he was working at his regular normal employment, and died a few hours thereafter. He was engaged in his usual employment without any extraordinary stress or strain as compared to his normal working conditions. The “sudden mishap occurring by chance, unexpectedly and not in the usual course of events ’ ’ was the sudden severe attack of indigestion induced by the extreme heat incident to the normal activities of his employment.

In its opinion in Nelson v. Industrial Commission, 150 Ohio St., 1, 80 N. E. (2d), 430, the Supreme Court said:

“Although a liberal construction is justly required in the interpretation of the Workmen’s Compensation Act, in order to have death compensation there still must be some evidence that the death of the workman was caused or contributed to by some act which was different in kind or in exertion from the regular, ordinary ivork performed by the workman and those engaged in like occupation.” (Emphasis added.)

In Gerich v. Republic Steel Corp., 153 Ohio St., 463, 92 N. E. (2d), 393, the Supreme Court, in the first and third paragraphs of the syllabus, apparently adopted the language referred to in the opinion in the Nelson case:

“1. Under the Ohio Workmen’s Compensation Act, to entitle a workman to compensation for injury, he must suffer a traumatic injury in the course of and arising out of his employment other than an injury which may occur in the regular course of nature from the usual and normal activities of his employment. ’ ’

“3. Evidence which shows simply that an injury either may have been the result of an accident in the course of and arising out of employment or may have been suffered in the course of employment in the regular course of nature in the usual and normal activities of the employment is not evidence to support a workmen’s compensation claim.”

In Eggers v. Industrial Commission, 157 Ohio St., 70, 104 N. E. (2d), 681, the employee, while on duty, suddenly fell to the floor and suffered a cut on the side of his head, but there was no evidence as to where he was standing or as to the nature of his work or that any incident connected with his employment caused him to fall or that he had experienced any unusual strain or was subjected to any unusual condition, and recovery was denied. The court distinguished the case of Industrial Commission v. Nelson, 127 Ohio St., 41, 186 N. E., 735, where the claimant was seized with an epileptic fit, causing him to fall, and where, in falling, his head struck a machine at which he was then working. It will be noted that Eggers’ fall while on duty was an unusual event just as in the case of Nelson, but in Nelson’s case, he having struck the machine, there was a traumatic injury arising out of his employment.

Although the third paragraph of the syllabus in the Malone case could be interpreted to include any injury .arising out of employment, induced by exertion normal to the employment, if the employee is subjected to a greater hazard than are members of the general public, it is concluded that the evidence to support recovery of compensation must disclose “a physical or traumatic damage or harm, accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place. ’ ’ Such evidence must disclose also an injury in the course of and arising out of the employment “other than an injury which may occur in the regular course of nature from the usual and normal activities of his employment. ’ ’

Applying these principles to the instant case, the plaintiff’s decedent merely became ill while engaged in the usual and normal activities of his employment. The evidence fails to disclose any untoward or sudden mishap of a traumatic nature, accidental in character and result, to afford a predicate for the medical testimony that, incident to his employment, his asthmatic condition was aggravated, which in turn resulted in a heart condition causing his death.

Judgment affirmed.

Savord, J., concurs.

Conn, J.,

dissenting. The trial court determined that the defendant was entitled to a judgment in its favor, although the jury had returned a verdict- for plaintiff. Judgment was entered for the defendant pursuant to Section 11601, General Code, the court having found, as appears by its judgment entry, that “upon the evidence adduced, the verdict of the jury was contrary to law, and the defendant is entitled in law to a judgment in its favor.”

The verdict in favor of plaintiff was returned in the second trial of this cause. Upon the first trial, the jury disagreed and was discharged.

A motion for judgment notwithstanding the verdict presents a question of law, and plaintiff is entitled to the most favorable construction of the pleadings and the evidence. Under the provisions of the statute (Section 11601, General Code), the court is not permitted to weigh the evidence but is required to consider all the evidence which was submitted to the jury. Thereupon, if upon the application of the rule of ‘ ‘ reasonable minds” it appears that the evidence has no probative value, a judgment can be entered for defendant.

It is a well settled rule that where the record discloses a conflict in the evidence, and where there is substantial evidence of probative value adduced on any material issue, including proximate cause, a jury question is presented.

There appears to be two aspects of proximate cause when an issue arises in a workmen’s compensation case. First, the status or relationship of employer and employee which discloses a causal connection between the character of the work assigned to the employee and his subsequent injury so that it can be said that the alleged injury falls within the statutory definition, as outlined in Section 1465-68, General Code, and, second, credible evidence that the acceleration of the death of the employee, as asserted by plaintiff in the instant case, was the proximate result of such injury so sustained.

In the fact statement in the majority opinion by Judge Fess. the material facts are carefully outlined. The issue of what constitutes an “injury” and the proximate cause thereof can not be adjudged apart from these facts, such as the age and asthmatic physical condition of decedent, his unfamiliarity with the work assigned to him, the strain imposed by reason of dust, the high speed of the conveyor line, the attitude of youthful fellow employees, and the short duration of his employment and its immediate harmful effect on his health. It may be inferred that the fact situation presented to decedent when he undertook this work, respecting the character of the employment and its harmful result, was unanticipated and unexpected.

In Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266, cited in the majority opinion, the court restated with approval and perhaps broadened the rule that while the alleged injury must be shown to have a causal connection with the employment, such relationship may arise either through its activities, its conditions or its environments.

With respect to the issue of causal relationship between the alleged injury and subsequent death, the medical evidence submitted was in direct conflict. This conflicting evidence was substantial and of probative value. Under the rule, the issue of proximate causal relationship was one of fact rather than law.

The legal aspects of plaintiff’s claim, in relation to its compensable character, are not wholly within the area of certainty. However, on the whole record and « applying the rule of liberal construction, I am of the opinion that a jury issue was raised as to the legal status of plaintiff’s claim — that is — as to the “injury,” its unexpected or accidental character, and its causal relationship.

On this premise, there being no claim of prejudicial error in the submission of issues of fact to the jury, the motion for judgment should have been overruled.


author: Matthews, P. J.

text:
    Mitchell, Appellee, v. McDavid, Appellant.
    (No. 7675
    Decided February 9, 1953.)

      Messrs. Becker, Loeb & Becker, for appellee.

      Messrs. Halaby <& Raughey, for appellant.
   Matthews, P. J.

This is an appeal on questions of law from a judgment for the amount of an alleged overpayment of rent and an attorney’s fee under the Housing and Rent Act. The action was instituted in the Municipal Court of Cincinnati, which rendered judgment for the plaintiff for $125, found by that court to be in excess of the allowable maximum, and $50 as an attorney’s fee. The plaintiff waived all claim beyond that allowed by the court.

On appeal, the Common Pleas court affirmed the judgment. The appeal to this court is from that affirmance.

The record shows that the defendant has owned the residential real estate known g,s 1779 Sycamore street, Cincinnati, Ohio, since February 1, 1947. How long he had owned the property prior to that date does not appear. It does appear that as early as 1942, it was subject to the Housing and Rent Act, and that it had been registered and a maximum rent established for it as a single housing unit consisting of three rooms and bath on the first floor, two bedrooms on the second floor, and an attic which was not used or fit for use for human habitation.

In the summer of 1947, at a cost of $1,080, the defendant converted this single housing unit into two units by making a separate housing unit out of the second floor and attic. He did this by remodeling one room on the second floor into a kitchen and adding a bathroom, and by remodeling and refinishing the attic so as to constitute two bedrooms. The record leaves no doubt that the changes made were substantial, resulting in additional housing accommodations, so that upon completion there were two separate and distinct housing units where only one had been, and the housing accommodations were substantially doubled.

Before the work on the second floor and attic had been completed, the defendant rented them for $25 per month. After their completion, he rented them to the plaintiff at a rental of $37.50 per month.

In September 1947, the defendant filed with the area rent office two documents relating to this housing unit, one, a registration, and the other, a decontrol report. In the registration he disclosed that he had rented the unit for $25 per month and in the decontrol report he showed that it was a newly constructed unit completed on and after February 1,1947. On each of these documents was stamped the statement that on the basis of the information submitted the unit was decontrolled by the Housing and Rent Act of 1947, and this statement was signed by the area rent director.

After the plaintiff had occupied the unit from October 4,1950, to August 1951, and had learned on inquiry at the area rent office that “the only 4-room registration is for ‘rear of court 2nd & 3rd floor’ $25 month including water” he instituted this action to recover treble the excess of the $25 per month he had paid and attorney’s fee.

It should be said that there is no evidence that the area rent office at any time fixed a maximum rent for this housing unit. In fact the notation stamped on the registration document as well as the decontrol report indicates that the unit was not subject to control. It is true that the defendant recited in the registration filed by him that the maximum rent was $25 per month, but this did not constitute action by the area rent office ; nor did it bind the defendant if the property was in reality decontrolled under the law.

As we see it, the question is whether this housing unit was subject to control under the Housing and Rent Act, and, if so, whether that control had been exercised by the fixing of a maximum rent for the new unit that was created in 1947.

As already mentioned, the area rent office at no time fixed a maximum rent or any rent for this unit. The only action stipulating rent was taken by the defendant on the assumption that his ownership gave him that right, and according to the testimony he fixed $25 per month for the property while it was being remodeled and after the remodeling was completed, he fixed $37.50 as the rent, which amount the plaintiff agreed to pay.

The defendant’s assumption that his proprietorship included the power to dictate rental terms and to vary the same from time to time is, of course, based on the-general law of private property. That power is unrestricted except so far as it has been regulated by the law-making power to promote the public health, morals, safety, general prosperity, or general welfare. The only law to which we have been referred in any way applicable is the Housing and Rent Acts passed by the Congress of the United States, which include provisions extending the Emergency Price Control Act of 1942. See Section 1891 et seq., Title 50, Appendix, U. S. Code.

It is true that, by the Emergency Price Control Act of 1942, provision was made for regulation of rents in many areas of the United States, and agencies were created to administer the law. However, apparently it had been found that the rental restrictions had discouraged construction of new housing units. At any rate, Congress in extending the controls as aforesaid saw fit to relax the controls in certain respects. It did this by express exclusion of certain types of housing-accommodations. These exclusions are found in Section 1892.

By the only part of that section which is pertinent here, it is provided:

“The term ‘controlled housing accommodations’ means housing accommodations in any defense-rental area, except that it does not include * * * (3) any housing accommodations (A) the construction of which was completed on or after February 1, 1947, or which are housing accommodations created by a change from a nonhousing to a housing use on or after February 1, 1947, or which are additional housing- accommodations created by conversion on or after February 1, 1947.”

By later provision in Section 1892, if the conversion took place after the effective date of the Housing and Rent Act of 1949, the property was to continue to be controlled unless the housing expediter issued an order decontrolling it, which, however, he was obliged to issue if he found that the conversion resulted in additional self-contained family units. No such order of decontrol was required for conversions between February 1, 1947, and 1949.

A reading of these provisions is sufficient to disclose the purpose of Congress to encourage new construction by freeing property from the restrictions of rent control so that the property owner could obtain a fair return upon his new investment and the public would obtain the advantage of additional housing accommodations.

It also seems clear that this record presents a situation falling within the exception, that this property is not “controlled housing accommodations” within the meaning of the price control act, and that neither the housing expediter nor the area rent office had fixed, or had jurisdiction to fix, a maximum rent for this housing unit.

While this section is so clear that it does not require interpretation, we mention that it has been applied in several cases, including Graylyn Bainbridge Corp. v. Woods, Housing Expediter, 173 F. (2d), 790, 10 A. L. R. (2d), 242; Prince v. Davis, 195 Misc., 901, 87 N. Y. Supp. (2d), 600; Comstock v. Mahon, 76 N. Y. Supp. (2d), 642; Woods, Housing Expediter, v. Baker, 84 F. Supp., 339; Flynn v. Woods, 181 F. (2d), 867.; United States v. Beatty, 88 F. Supp., 791.

The cases involving Section 1892 which have reached the United States courts have resulted from the efforts of the housing expediter to exercise power over property that had been improved after February 1, 1947. The question litigated was whether the change made by the owner after February 1, 1947, was substantial and resulted in additional housing accommodations. If such change had taken place it was conceded that the housing expeditor had no jurisdiction. In some cases, it was held that he had power to investigate to determine whether a substantial change and additional housing accommodations had been effected. The ultimate question, however, is judicial.

In the case at bar, there can be no question that a substantial transformation of this property took place, and that additional housing accommodations were created.

For these reasons, the judgment is reversed, and final judgment is entered for defendant:

Judgment reversed. ■

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


author: Wiseman, P. J.

text:
    Manley, Appellant, v. Crawford, Appellant; et al., Appellee.

      (No. 709
    Decided March 27, 1953.)

      Messrs. Spidel, Staley do Mole, for appellants.

      Mr. Martin D. Pluess, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas’ Court of Darke County in a will construction action. The sole error assigned is that the trial court committed prejudicial error in holding that the estate involved herein vested in the children of the testator as of the date of his death.

In item three of his will, the testator gave a life estate to his widow, and in item four provided as follows:

“It is my will that after the death of my said wife, Martha E. Crawford, that my estate both real and personal shall pass to and vest in equal parts in my son Carl J. Crawford and my daughter Gladys Crawford Manley. Should either of said children die before my deceased [sic] leaving children the part of my estate that would have gone to such child if living shall pass to and vest in the children of such deceased child. Should either of my said children die prior to my decease without children it is my will that such share as would have gone to such child had he or she been living shall (......) to and vest in the child that may be living or to the heirs of such child. ’ ’

Item four consists of three sentences, each providing for a separate contingency. The first sentence contains the provision which requires construction.

The testator died August 12, 1939, survived by his wife, Martha E. Crawford, his daughter, Gladys Crawford Manley, and his son, Carl J. Crawford. At the time of the execution of the will the daughter was married, and had two children, and the son was married, but had no children. The son died intestate, without children, on August 6,1950, leaving as his only next of kin and heirs at law his widow, Eva M. Crawford, appellee herein, and his mother, the widow of the testator. The widow of the testator elected to take under the provisions of the will. The widow died while the appeal in this court was pending.

The sole question for determination is: Did the estate vest in the children as of the date of death of the testator, or upon the termination of the life estate of the widow?

The trial court applied the well-established rule that the law favors the vesting of estates at the earliest possible moment, and held that the daughter and son took a vested estate in remainder as of the date of death of the testator. The rule applied by the trial court has a well-recognized exception which is usually stated as part of the complete rule.

The complete rule is stated in the second paragraph of the syllabus in Ohio National Bank of Columbus, Trustee, v. Boone, 139 Ohio St., 361, 40 N. E. (2d), 149, 144 A. L. R., 1150, as follows:

“The law favors the vesting of estates at the earliest possible moment, and a remainder after a life estate vests in the remainderman at the death of the testator, in the absence of a clearly expressed intention to postpone the vesting to some future time.” (Emphasis ours.)

Other cases cited by appellee in support of her contention are: Linton v. Laycock, 33 Ohio St., 128; Stahl, Admr., v. Mohr, 35 Ohio App., 411, 172 N. E., 431; Moore v. Deckebach, 46 Ohio App., 381, 188 N. E., 880; Imhoff, Exrx., v. Imhoff, 59 Ohio App., 394, 18 N. E. (2d), 411; Smith v. Weinkoff, 80 Ohio App., 206, 75 N. E. (2d), 81; and Tax Commission of Ohio v. Oswald, Exrx., 109 Ohio St., 36, 141 N. E., 678. See, also, 16 Ohio Jurisprudence, 476, Section 97. In the aforementioned cases, the well-established exception to the general rule is recognized. In each of the cases cited the situation presented is one where the time of payment, division, or distribution was postponed. In those cases the court found that the right of possession only was postponed. There was found to be a present fixed right of future enjoyment. In the cases cited the wills under construction contained no expressed provision fixing the time of vesting of the estate such as in the case at bar.

In this case, as in all will construction cases, we are required to ascertain the intention of the testator from the four corners of the will, and give effect thereto.

Does the testator manifest a contrary intention to an immediate vesting? We think so. In item four testator expressly provides that: “After the death of my said wife * * * my estate * * * shall pass to and vest * * We can scarcely conceive of stronger language to express the intention of the testator that the estate shall vest at the termination of the life estate. This is tantamount to stating that it shall not vest at an earlier date. To construe the will otherwise would do violence to this provision in the will; all force and effect of this provision would be nullified.

In Tax Commission v. Oswald, Exrx., supra, the court, on page 48, states the applicable rule of construction as follows:

“Now, it is rudimentary in the construction of wills that the intention of the testator is to be ascertained, and the whole will given force and effect, if such a construction can be reached consistent with the application of legal principles, and that, when an instrument is open to two constructions, one of which will give effect to the whole instrument and the other will destroy a part of it, the former must always be adopted.”

We concede that the question presented is not wholly free from doubt, but we have reached the conclusion that the will discloses the intention of the testator to postpone the vesting of the estate until the termination of the life estate.

It is axiomatic that the fee must vest in someone. The will does not provide for the vesting of the fee during the life tenancy, in case both the son and daughter survive the testator. Therefore, the fee vested in the next of kin of the testator, subject to being divested in favor of those having the right to the vested estate at the death of the life tenant. The son died before the termination of the life estate and, therefore, never took a vested estate in the remainder. At the death of the life tenant, the entire estate vested in the daughter.

Finding error in the record prejudicial to the rights of the appellant, the judgment is reversed with directions to enter final judgment in conformity herewith.

Judgment reversed.

Miller, and Hornbeck, JJ., concur.


author: Hurd, J.

text:
    Tipling, Appellee, v. Randall Park Holding Co., Appellant.
    (No. 22297
    Decided June 30, 1952.)

      Messrs. Kuth & Meyers, for appellee.

      Mr. Ray T. Miller, for appellant.
   Hurd, J.

This cause comes before this court at this time on a motion to dismiss the appeal on the ground that there is no final order or order in a special proceeding from which an appeal can be taken.

The notice of appeal, so far as pertinent, reads:

“Defendant appellant * * * appeals on questions of law # * from a judgment and decree of the Common Pleas Court whereby said * * * court granted plaintiff appellee a restraining order enjoining defendant appellant from trespassing upon, using, occupying or otherwise molesting plaintiff appellee’s property.”

While the notice of appeal does not so state, the appeal is from the allowance of a restraining order issued pendente lite. Upon a liberal interpretation of the record, it may be considered also as an appeal from a later order overruling a motion to dissolve a temporary restraining order.

The action is predicated upon rights claimed under a long-term lease of a parcel of land located near the Randall Race Track. For a full understanding of the issues involved it is necessary to set forth the prayer of the petition, which is as follows:

“Plaintiff prays that during the pendency of this action the defendants, and each of them, their agents, representatives and employees, be severally restrained from entering upon, using or occupying the land so devised to plaintiff by the lease indenture recorded in volume 180, page 354 of the lease records of Cuyahoga county; that upon the failure or refusal of defendants to deliver to plaintiff a properly executed lease for premises as herein described, said restraining order be made permanent so long as the land adjacent to the demised premises is used for racing purposes; that defendants, according to their respective rights and interests in the land commonly known as Randall Race Track, be required to duly execute and deliver to plaintiff a properly executed lease of an acre of land similarly located, to the demised premises acceptable to plaintiff, all as in said lease provided, with a foundation and floor of the size, type and material as hereinbefore described, installed thereon, that upon the failure or refusal of said defendants to restore the foundation and floor upon the demised premises or deliver an executed lease to other property as aforesaid, the plaintiff be awarded such other and further relief, both legal and equitable, as the plaintiff may be entitled to and the court can give, with his costs.”

While there is a prayer in the alternative, the principal relief sought is that plaintiff’s rights ultimately be established upon final adjudication by making permanent the temporary order heretofore granted by the trial court.

In onr opinion, the appeal from the temporary order should be dismissed on the authority of May Co. v. Bailey Co., 81 Ohio St., 471, 91 N. E., 183; and Jones, Treas., v. First Natl. Bank of Bellaire, 123 Ohio St., 642, 176 N. E., 567.

The syllabus of May Co. v. Bailey Co. reads:

“An order of the Court of Common Pleas granting a temporary injunction in a suit in which the ultimate relief sought is an injunction, is not either a judgment or a final order which may be reviewed by the Circuit Court on petition in error. ’ ’

Commenting upon an analogous situation, the court at page 473, states:

“There was no occasion for dividing up the case, leaving a part of it in the Court of Common Pleas, while a part of it was taken to the Circuit Court. The questions involved in the allowance of the temporary injunction were not different from those which would be involved in a consideration of the final judgment, and the case should have been disposed of wholly in the Court of Common Pleas, before a resort was had to the jurisdiction of the Circuit Court # *

In the case of Jones, Treas., v. First Natl. Bank of Bellaire, supra, the law of the case, as stated in the' syllabus, is:

“An order of the Court of Common Pleas overruling a motion to vacate a temporary injunction in a suit in which the ultimate relief sought is an injunction, is neither a judgment nor a final order which may be reviewed by the Court of Appeals on a petition in error. (May Co. v. Bailey Co., 81 Ohio St., 471, approved and followed.) ”

Defendant has cited and quoted in part from the cases of Hersch v. Home Savings & Loan Co. (1938), 59 Ohio App., 145, 17 N. E. (2d), 377; Black v. Polling (Ohio App., 1943), 66 N. E. (2d), 781; and Wioland v. Mayflower Motors, Inc., 80 Ohio App., 310, 75 N. E. (2d), 443.

We have examined these authorities and find them inapplicable to the issues here presented. In the cases of Hersch v. Home Savings & Loan Co. and Wioland v. Mayflower Motors, Inc., the appeals were from orders granting motions to dissolve temporary restraining orders, just the reverse of the propositions here presented, and by clear implication an affirmance of the proposition that the overruling of a motion to dissolve a temporary order is not a final order in an action where the principal and ultimate relief sought is a permanent injunction. The case of Black v. Polling involved an action concerning rights to proceeds from a life insurance policy growing out of a divorce suit. The matter was submitted on a motion to vacate only. In any event, the reviewing court affirmed the judgment of the trial court in overruling the motion to dissolve the temporary order. However, there is little analogy, factually, to the instant ease and Black v. Polling cannot be considered either as authoritative or persuasive in view of the holdings of the Supreme Court in the cases hereinbefore cited.

In conclusion, it may be stated that the situation here presented as to law and fact. is precisely the same as that presented in Jones, Treas., v. First Natl. Bank of Bellaire, supra, where, at page 643, the court states:

“The Court of Appeals, on motion of the bank, dismissed the case for want of jurisdiction, holding that the action of the trial court in overruling the motion to dissolve the temporary injunction was an interlocutory order only, and in no sense such final order as might be reviewed in the Court of Appeals on error prior to the decision by the trial court of the case on its merits, and thereupon the defendants prosecuted error to this court.

‘ ‘ There is but a single issue in the case, and that is whether the overruling of the motion to dissolve the injunction was an order with respect to which the defendants might rightfully prosecute error to the Court of Appeals.”

The Supreme Court, in affirming the judgment of the Court of Appeals dismissing the petition in error, approved and followed May Co. v. Bailey Co., supra. These authorities must be followed by this court in considering the merits of the issues presented in the motion to dismiss. When this case is tried on the merits, the matters here complained of will be subject to review at the instance of any aggrieved party. In the meantime, no injustice is done and the rights of all parties are preserved by holding in statu quo the matters in dispute pendente lite.

For the reasons stated, the motion to dismiss the appeal is granted.

Motion sustained.

Skeel, P. J., and Thompson, J., concur.


text:
    Combs, Appellee, v. Combs, Appellant.
    (No. 7208
    Decided January 30, 1950.)

      Mr. Harry Falk, for appellee.

      Mr. Henry L. Kelsch, for appellant.
   Per Curiam.

It appears from the record that no trustee or guardian for suit was appointed for the defendant, a minor, in an action brought by her husband against her for divorce, and that the trial court granted the plaintiff a divorce and made an order barring the defendant from any right in property held by the plaintiff.

Section 11252, General Code, provides:

“[Guardian for suit.] In an action against an infant, his defense must be by a guardian for the suit, who may be appointed by the court in which it is being prosecuted, or by a judge thereof, or by a probate judge. ’ ’ (Emphasis added.)

See Bennett v. Fleming, 105 Ohio St., 352, 359, 137 N. E., 900.

Section 11322, General Code, provides:

“[Answer of guardian and attorney.] The answer of a guardian of an infant, or of a person of unsound mind, or of an attorney for a person in prison, shall deny all the material allegations of the petition prejudicial to such defendant. ’ ’

For this reason, the judgment of the trial court must be, and is, reversed, and the cause is remanded to the Common Pleas Court of Hamilton County, Division of Domestic Relations, for a new trial.

Judgment reversed.

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


author: Kovachy, J.

text:
    In re Estate of Weber: Dept. of Taxation of Ohio, Appellant, v. Weber, Exr., Appellee.
    (No. 22635
    Decided February 24, 1953.)

      Mr. C. William O’Neill, attorney general, Mr. Arthur Toll and Mr. Jaclc H. Bertsch, for appellant.

      Mr. C. W. Lindsey, for appellee.
   Kovachy, J.

In this case we are asked by the Department of Taxation of Ohio, in an appeal on questions of law, to reverse the ruling of the Probate Court of Cuyahoga County made in the estate of Ruth M. Weber, deceased, that two promissory notes belonging to the estate and secured by mortgages on real estate, one of which is in default and both of which have a business situs in the state of New York, are not subject to an inheritance tax in Ohio, the domicile of the decedent. All the property of every kind and nature was devised by last will and testament to decedent’s husband, Ivan C. Weber, to be his absolutely.

An inheritance tax is not a direct tax on the property involved. It is a succession tax assessed on the beneficial interest of a devisee upon the death of the owner of the property, and is imposed on the right and privilege of receiving the property devised to him from a domiciliary decedent.

In 26 Ruling Case Law, 196, Section 167, it is said:

“An inheritance tax in any of its customary forms is not a tax on the property of the decedent with respect to which it is levied, but is an excise imposed on the privilege of transmitting or receiving property upon the death of the owner * *

In Tax Commission of Ohio, ex rel. Price, Atty. Genl., v. Lamprecht, Admr., 107 Ohio St., 535, 140 N. E., 333, 31 A. L. R., 985, the syllabus provides:

“The Ohio State Inheritance Tax is a succession tax on the beneficial interest of each heir, legatee, devisee, or other beneficiary of a decedent’s estate * *

In Ohio, any property belonging to a resident of the state at the time of his death, whether tangible or intangible, and whether within or without the state, except alone as to real estate, is subject to an inheritance tax at the passing of such property to another by will. Sections 5331 and 5332, General Code.

Promissory notes are forms of intangible property, being evidence of debts owing their holders, and the fact that they are secured by mortgages on real estate in no way affects their basic nature and character. Such mortgages are but security for the payment of the debts and a means of enforcing payment if in default. Kirtland v. Hotchkiss, 100 U. S., 491, 498, 25 L. Ed., 558; Cleveland, Painesville & Ashtabula Rd. Co. v. Pennsylvania, 82 U. S. (15 Wall.), 300, 323, 21 L. Ed., 179.

We are of the unanimous opinion that the fact that the promissory notes, in this case have a business situs in the state of New York has no effect whatever upon the question of the assessment of an inheritance tax in Ohio, since the maxim, mobilia secuuntur personam, applies, and, consequently, the domicile of the decedent at the time of her death and not the location of the intangibles is the determining factor. The state of Ohio, having jurisdiction over the person owning the property at the time of death, has the unquestioned authority to levy a tax, measured by the value of such property, on the right and privilege the state confers on the owner when it permits a devisee designated by her to receive the property devised.

In Curry, Tax Commr., v. McCanless, Commr. of Finance & Taxation, 307 U. S., 357, 366, 83 L. Ed., 1339, 59 S. Ct., 900, 123 A. L. R., 162, it is said:

“The power to tax ‘is an incident of sovereignty, and is co-extensive with that to which it is an incident. All subjects over which the sovereign power of a state extends, are objects of taxation; but those over which it does not extend, are, upon the soundest principles, exempt from taxation.’ McCulloch v. Maryland, 4 Wheat., 316, 429. But this does not mean that the sovereign power of the state does not extend over intangibles of a domiciled resident because they have no physical location within its territory, or that its power to tax is lost because we may choose to say they are located elsewhere. * * * Prom the beginning of our constitutional system control over the person at the place of his domicile and his duty there, common to all citizens, to contribute to the support of government have been deemed to afford an adequate constitutional basis for imposing on him a tax on the use and enjoyment of rights in intangibles measured by their value. ’ ’

In Blodgett v. Silberman, 277 U. S., 1, 72 L. Ed., 749, 48 S. Ct., 410, the first paragraph of the syllabus provides :

“The state of a decedent’s domicile may impose a succession tax on the transfer of his intangible property by will or inheritance under her laws, even though the evidences of such property be outside of the state at the time of his death, and even though the transfer be subject to taxation in another jurisdiction. Mobilia sequuntur personam.”

See Kirtland v. Hotchkiss, supra, paragraph two of the syllabus.

The defendant claims that “to permit the state of Ohio to tax property wholly beyond its jurisdiction or control, conflicts with the Fourteenth Amendment. ’ ’

We believe the case of Pearson, Treas., v. McGrow et al., Exrx., 308 U. S., 313, 84 L. Ed., 293, 60 S. Ct., 211, disposes of this contention. The Supreme Court of the United States held in that case that an inheritance tax was assessable by the state of Oregon against a resident decedent who had intangibles in Illinois, where all business had been transacted with respect to them, and that such taxation did not contravene the due process clause of the Fourteenth Amendment. See, also, Curry v. McCandless, supra, paragraph eleven of the syllabus.

It seems clear to us also that the Legislature of Ohio foresaw the eventuality of another state as well as Ohio imposing an inheritance tax on the same property by enacting Section 5333, General Code, where-under credit can be allowed for payments made in another state by one required to pay such tax in Ohio.

We hold accordingly that the two promissory notes in the estate of Ruth M. Weber, deceased, are subject to an inheritance tax under the law of Ohio. The judgment of the Probate Court exempting them from such taxation is reversed, and the cause is remanded for further proceedings.

Judgment reversed.

Hurd, P. J., and Skeel, J., concur.


text:
    Barge, a Minor, Appellee, v. House, Appellant.
    (No. 699
    Decided April 8, 1952.)

      Messrs. Goubeaux & Goubeaux, for appellee.

      Mr. Jesse E. Brumbaugh and Mr. Stanley R. Mote, for appellant.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment in the amount of $2,000 in favor of the plaintiff and against the defendant in an action for damages for personal injuries.

When we speak of the plaintiff we refer to Rodney Jerome Barge, the minor.

The action was instituted on behalf of the minor against the defendant, an employee of the State Highway Department, who was driving a state truck loaded with gravel in a southerly direction on a highway which intersected the Ft. Loramie and Yorkshire roads, which latter highway extends east and west. Plaintiff was a passenger in an automobile driven by his brother, which was moving eastwardly on the Yorkshire road. A collision occurred in the intersection of the two highways resulting in substantial injuries to the plaintiff.

The negligence alleged was failure of defendant to observe a stop sign at the intersection, and driving onto the Yorkshire road without first stopping and ascertaining whether the automobile in which plaintiff was riding was approaching. The answer denied generally the negligence alleged in the petition, and especially denied that defendant did not stop before entering the Yorkshire road. The answer averred that defendant did stop and look to the west before again starting his truck; that when he started into the intersection, the plaintiff’s car had not reached a curve some 500 feet west of the intersection; that plaintiff’s car was approaching the intersection at a speed in excess of 60 miles per hour; that when defendant had reached a point approaching the center of such intersection, he stopped his truck leaving sufficient space for the driver of plaintiff’s car to pass in front of the truck; that the plaintiff’s driver drove his automobile into the side of the truck; and that the collision was directly and proximately caused by the sole negligence of plaintiff’s driver.

Five errors are assigned, three of which, the first, second, and fifth, are urged in the brief of appellant. We consider them.

First, the court erred in permitting counsel for the plaintiff to propound certain questions to prospective jurors relative to the interest of such jurors in casualty insurance companies, which questions were objected to at the time by the defendant. It is urged by defendant that those questions were not propounded in good faith. Counsel for the defendant, not in the presence of the jury, advised the trial judge and opposing counsel that the defendant carried no indemnity accident insurance. Counsel for plaintiff asserts that the question was propounded in good faith with, the knowledge that counsel represented insurance companies professionally. The questions, in our judgment, were not improper.

In qualifying jurors, counsel for the parties are seeking information which will be of assistance to them not only in challenges for cause but for the possible exercise of peremptory challenges. It is common knowledge that individuals may have predilections for the business in which they are engaged and, possibly, some prejudice against those whose interest may affect that business. The fact that defendant’s counsel represented insurance companies, in the opinion of counsel for the plaintiff, might have affected in some particular the opinions of prospective jurors if they were in the employ of insurance companies, especially casualty insurance companies.

The second paragraph of the syllabus of Dowd-Feder, Inc., v. Truesdell, 130 Ohio St., 530, 200 N. E., 762, supports the propriety of the questions asked in this case, subject only to the test set out in the third paragraph of such syllabus that they be propounded in good faith. We cannot say that the court did not exercise sound discretion in determining that the questions were proper.

Second, the court erred in the admission of evidence offered by the plaintiff and objected to by the defendant. This assignment has two branches. The highway patrolman testified, as an expert, to the speed of plaintiff’s automobile immediately prior to the collision, based, in part, upon the length of skid marks made by it on the highway. It is urged that the admission of this testimony was erroneous. The witness stated that he employed a chart which is commonly used by his department in determining the speed of an automobile by its skid marks on the highway. The highway patrol is recognized as an agency which considers traffic on the highway in all its aspects. The question should have included more of the operative facts to permit of a probative answer. However, the ground assigned as an objection to permitting the answer, viz., the use of a chart in reaching the conclusion stated, was not well made. In view of all the testimony of the patrolman disclosing all the factors which he included in forming his opinion, no prejudice to the defendant intervened by the admission of the testimony.

The other aspect of the third assignment, and the one error which arrests our serious attention, relates to the admission of the testimony of several witnesses regarding the arrest of defendant and subsequent proceedings in the court of a justice of the peace. In this connection, it would be well to advert to the decisive issue between the parties. Plaintiff’s success in his .action depended, in large part, on proof of Ms claim that the defendant disregarded the stop sign and proceeded into the path of plaintiff’s car when plaintiff had the right of way. Defendant denied this claim and testified that he did stop.

It appears that Wm. H. Schneyer, a highway patrolman, arrested the defendant upon the charge that he “did unlawfully operate a motor vehicle upon the public highway of the state intending to enter a through highway by failure to yield the right of way to all other vehicles, contrary to Section 6307-42 of the General Code of Ohio.”

The affidavit upon which the arrest was made was sworn to by the highway patrolman. The justice of the peace of the township in which the defendant was arrested, who is successor to the justice who tried the defendant, was called to the stand. The record of the proceedings was read in the presence of the jury and at the conclusion of this testimony an objection to it was sustained. Although there was no motion to strike, the jury did not properly have it for consideration.

The plaintiff was permitted to testify in chief, over objection and exception, that he had heard Mr. House admit that he failed to stop at the intersection, but in the first instance the circumstances under which the statement was made were not permitted to be shown. However, later and without exception, the witness stated the time and place the admission was made as having been at the “squire’s” office and that the patrolman, the defendant and the “squire” were there. Upon the record, we cannot say that the admission of this testimony was prejudicial to the defendant.

The highway patrolman on redirect examination in chief was interrogated and testified as follows:

“Q. Were there any violations of traffic laws that you discovered as a result of your investigation?
“Objection to the question sustained.
“Q. Did you make any arrests?
“Objection overruled.
“A. I did, Sir.
“Q. Whom did you arrest as a result of this collision? A. Mr. House.
“Objection.
“Q. What was the charge?
“Objection overruled and exceptions.
“A. Failing to yield the right of way.
“Q. Was a trial had subsequent to his arrest?
“Objection sustained.”

The driver of plaintiff’s car was permitted to testify also that he was not arrested and that the defendant was arrested. This testimony was received over the objection of the defendant.

The trial judge did not permit proof of the judgment entered in the case in the justice court. Thus, the rule that a judgment of conviction in a criminal case may not be offered in a civil action was not breached. See annotation to Interstate Dry Good Stores v. Williamson (91 W. Va., 156), in 31 A. L. R., 261, 262. However, the reason for the rule applies to some of the evidence which was received.

Under Section 11573, General Code, the test of whether error is reversible is whether the improper admission of testimony admitted over objection is prejudicial to the substantial rights of the party excepting.

Although the highway patrolman did not see the collision, he was permitted to testify and his competent evidence was favorable to the plaintiff. When, then, in addition to all the other testimony respecting the criminal proceedings against the defendant the patrolman was permitted to say to the jury that, as a result of the collision, he had arrested the defendant because he did not yield the right of way to the automobile in which plaintiff was riding, and that he did not arrest the plaintiff’s driver, it must have accentuated in the minds of the jurors the opinion of the state patrolman that the plaintiff’s contentions on the-issues in the case were correct. The jury may have believed that the arrest of the defendant by the patrolman, a police officer charged with enforcing traffic laws, was persuasive that the defendant was guilty of the offense with which he was charged. The incompetent testimony on a vital issue was definitely harmful to the defendant. The reception of this evidence, in our opinion, was erroneous and prejudicial to the defendant. On any subsequent trial no reference should be made to the arrest or subsequent proceedings in the justice court.

The fifth and final assignment of error is that the verdict and judgment are against the manifest weignt of the evidence. We do not so find.

Opon the one error assigned, which we have heretofore discussed, the judgment is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed,.

Wiseman and Miller, JJ., concur.


text:
    Mason, Admr., Appellant, v. City of Cincinnati et al., Appellees.
    (No. 7444
    Decided June 25, 1951.)

      Messrs. Lindhorst & Dreidame, for appellant.

      Messrs. Corry, Durfey, Martin & Browne, for appellee Rice.
   Per Curiam.

A motion has been made to dismiss this appeal on questions of law. In the Common Pleas Court of Hamilton County a motion to quash service of summons was made and sustained.

The final entry from which such appeal was taken is as follows:

“This day this cause came on to be heard upon the motion of the defendant, Dr. William Garrett Rice, to quash service of summons, and being submitted to the court by the briefs and arguments of counsel, the court being fully advised in the premises, finds said motion well taken and should be sustained, and

“It is accordingly ordered, adjudged and decreed, that the said motion be and the same hereby is sustained and that the issuance and service of summons on the defendant, Dr. William Garrett Rice, and the return of service thereon be and the same hereby are set aside and vacated. Plaintiff is granted leave to amend within 30 days. To the ruling of the court, the plaintiff duly excepts.”

This is not a final order from which appeal may be taken to this court. Puthoff v. Owens-Illinois Glass Co., 30 Ohio Law Abs., 653, 31 N. E. (2d), 684; State, ex rel. McCale, v. Industrial Commission, 132 Ohio St., 13, 4 N. E. (2d), 263. The appeal must be dismissed.

At the oral hearing, all counsel expressed a desire to have the court express its conclusion, as if a final order dismissing one defendant from the case had been entered, and the court, although doubting the propriety of the procedure, acquiésced in the common wish of counsel.

However, upon examination of the petition and an entry of the trial court granting a motion to strike allegations from the petition (the plaintiff having failed to amend such petition, although thirty days were permitted to amend), it becomes apparent that the petition states no cause of action against anyone. In most instances the allegations are wholly unintelligible owing to the deletion authorized by the court.

This court can not draft the kind of a petition the plaintiff thinks he has or might file and then proceed to pass upon vague suggestions of counsel as to what might result if proper allegations were made.

Apparently, the plaintiff thinks he has some right of action under the provisions of Section 9989, General Code. Whether he has or has not, it is now impossible to state. It may be stated, however, that in no way does it appear from what is before the court that there could be any joint liability of the surgeon with the city under the provisions of this or any other section of the Code. Section 9989, General Code, incidentally is placed in Title IX dealing with “Private Corporations.” Nothing in Section 9989, General Code, indicates that a municipal corporation was intended to be included in the terms “persons, associations and companies.”

It is clear that the liability of a political subdivision of the state for acts done while exercising the police power invested in it is limited to definite statutory authority.

The extent of the present action of this court is limited to the dismissal of the appeal.

Motion sustained.

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