author: Washburn, J.

text:
    Smith, Appellee, v. City of Cuyahoga Falls, Appellant.
    (No. 3598
    Decided October 7, 1943.)

      Mr. James M. Hinton, for appellee.

      Mr. Lloyd E. Ellsworth, city solicitor, and Mr. Paul C. Weich, for appellant.
   Washburn, J.

Appellee, an elderly lady, was walking with her husband upon a public street in the city of Cuyahoga Falls, and while in front of a church she slipped and fell by reason of the slippery condition of the walk and was seriously injured. The fall occurred about 2:30 in the afternoon of a winter day.

•Appellee claimed that the slippery condition of the walk was due to ice, that its condition was such as to constitute a nuisance, and that such nuisance was caused by the freezing of melted snow and the freezing of water coming upon the walk from the adjoining church premises and from the public park of the city adjoining the church. She also claimed that the city was charged with notice of the icy condition, either because it had existed for a long time or that recurrently for a long time such condition had existed by reason of the same cause. She further claimed that water from a downspout upon the church was cast upon said sidewalk, and that therefore the unsafe condition of the sidewalk was 'definitely created by causes other than the usual and natural accumulation of snow and ice upon the sidewalk.

The city denied these claims, and pleaded that, if it was in any way remiss in its duty in the care and condition of its sidewalk, the plaintiff was guilty of negligence which was the proximate cause of her alleged injuries, in that she failed to avoid the injuries by observing the claimed defective condition of the sidewalk.

At the close of appellee’s evidence and again at the close of all of the evidence, the court overruled a motion by the appellant (city) for a judgment in its favor, and the cause was submitted to the jury. The verdict of the jury and the judgment of the court were in her favor, in the sum of $5000. The case is here on appeal on questions of law.

It is definitely settled in Ohio that, in the absence of a special statute, a municipality is not liable for injuries resulting from the usual and natural accumulation of snow and ice on its sidewalks, and that Section 3714, General Code, does not provide otherwise. McCave v. City of Canton, 140 Ohio St., 150, 42 N. E. (2d), 762.

From a reading of the record, including the charge of the court, it is evident that the jury in this case found that the condition of the sidewalk where the appellee fell was such as to constitute a nuisance, and that that condition did not arise from natural causes but from artificial causes, to wit, water from rainfall or melting snow on the city’s park property that was permitted to flow onto and down the walk in front of the church premises to the point where appellee fell, and water from a downspout from the church that was also cast upon the sidewalk.

Said downspout was on the far side of the church from where appellee fell, and gathered water that fell on an area only 36 feet wide and 100 feet long, and that involved only a fraction of the water that fell upon the. church property and in the immediate vicinity thereof.

The outlet of the downspout in question was upon the lawn of the church, and was at a distance of more than 100 feet from the sidewalk where appellee fell, and at a place on the lawn where, owing to the topography of the land, the water that did not seep into the ground flowed in a direction other than towards the place where appellee fell.

It is possible that a small portion of such water, in a roundabout way, reached the sidewalk upon which appellee fell, at some distance from where she fell, but the record discloses no justifiable reason for a claim that the downspout changed the course of the water that fell on the roof, or accelerated its flow in such a manner as to effect or create an artificial or unnatural condition on the street where appellee fell.

The church property was much higher than the sidewalk on which the appellee fell. The church building was 60 feet back from the sidewalk, and the water that fell on the property in front of the building naturally spread onto and across the sidewalk where the appellee fell.

The park property adjoined the church property and was only slightly higher than the street, and the water that fell on the park property’ naturally gravitated on the lawn towards and across the street in front of the park but at some distance from where appellee fell.

We are of the opinion that the finding of the jury that water from such downspout, or that water from the park property of the city, traveled down the sidewalk upon which appellee was walking, to the point where she fell, and at that point contributed to the forming of ice upon the walk, is manifestly against the weight of the evidence; and that any finding of the jury that the condition of the walk at the place where appellee fell was brought about by artificial or unnatural causes, would be not only manifestly against the weight of the evidence, but wholly unjustifiable; consequently there was no basis for a finding that the condition of the walk where appellee fell constituted a nuisance within the meaning of Section 3714, General Code.

We are also of the opinion that a finding that, where appellee fell, there was a recurring condition of ice due to other than natural causes, justifying a finding of notice to the city of the existence of a nuisance, would be manifestly against the weight of the evidence.

It should also be borne in mind that while in the petition, as amended just before trial, there was an allegation that the city had allowed the sidewalk to become broken, dislodged, irregular and out of repair, the evidence was not sufficient to justify submitting that claim to the jury, and the trial judge rightfully refrained from submitting it.

It has also long been established in Ohio that “One who goes voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible.” Village of Conneaut v. Naef, 54 Ohio St., 529, 44 N. E., 236, approved and followed, with other decisions of like import, in Davis v. Charles Shutrump & Sons Co., 140 Ohio St., 89, at page 98, 42 N. E. (2d), 663.

There is no dispute as to the amount of snow that fell the night before the accident; it was a light snow. There is also no dispute in the evidence as to the pedestrian travel there was over the walk where she fell; literally hundreds of people walked over that walk after the snow and before she did; the little evidence there is indicating that the snow concealed the condition of the walk, is not credible or persuasive.

Most of the witnesses who testified concerning the conditions at that place had no difficulty in seeing the slippery condition of the walk, and when the appellee was asked by her attorney whether she was “able to see any ice by reason of that snow,” she answered: “I didn’t see the ice at all.” (Italics ours.)

It is our judgment that, from the record, reasonable minds could come to no other conclusions than that the condition of the walk was not caused by artificial or unnatural means; that the condition of the walk was plainly visible to one passing over it; and that the appellee was guilty of contributory negligence.

The judgment should have been in favor of the city.

Appellee relies for her right to recovery largely upon the case of McCave v. City of Canton, supra, but we discover no intention therein to make a municipality liable for a condition such as is shown by the record in this case. Certainly, in this case, there was no evidence that, by means of the downspout “of a building adjoining a street,” water was “cast” upon the sidewalk, in conformity to the requirements of the third paragraph of the syllabus in the McCave case.

Under the circumstances, we do not deem it necessary to refer to other claimed errors urged by appellant.

Judgment reversed and final judgment ordered for appellant.

Judgment reversed.

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


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Philadelphia Fire & Marine Ins. Co., Appellee, v. The Hirschfield Printing Co., Appellant.
    (No. 6838
    Decided November 22, 1943.)

      Mr. Robert P. Moore, for appellee.

      Mr. John R. Hahn and Messrs. Bolle, O’Donnell é Cash, for appellant.
   Matthews, J.

The Municipal Court of Cincinnati, without the intervention of a jury, found the issues of fact in favor of the plaintiff - and rendered judgment for it. The appeal to this court is from that judgment.

The plaintiff had insured one Gerhold against damage by fire to his automobile. Loss occurred from that cause and the plaintiff having paid Gerhold the amount of his loss, by this action seeks to enforce the right of Gerhold against the defendant for having wrongfully caused the loss.

The first error assigned is that the court rendered final judgment on the defendant’s motion at the close of the plaintiff’s evidence and thereby deprived defendant of the opportunity to introduce evidence and to argue upon final submission of the case.

An examination of this record lends no support to the defendant’s contention. It shows that after the plaintiff had rested, counsel for the defendant were asked by the court whether it had any evidence to offer and counsel responded, “No, I haven’t any testimony.” That necessarily meant that the case was submitted for decision at the close of all the evidence. The fact that this colloquy between court and counsel took place after the argument on the motion, is without legal significance. As all the evidence was before the court at the time of the argument on the motion and defendant’s counsel knew it, they had full opportunity to advance any argument that would be relevant whether the hearing had been characterized in advance as a hearing on final submission.

The record fails to show that this objection was raised at any time in the trial court and, for that reason and because it is unsubstantial, we find that the court committed no prejudicial error in treating the case as having been finally submitted.

The evidence shows that the defendant’s truck stalled in a public street. Defendant’s employee parked it along the curb and sent for another employee to help get the truck’s motor started. In the process, the employee who had been sent to adjust and start the motor let some gasoline drain from the tank onto the surface of the street. He said it was a small quantity— not more than a quart — and the other employee said it was as much as ten or eleven gallons. While there is a conflict in the evidence on the subject, there is ample foundation for the conclusion that the larger quantity escaped, before the fire started. The employee, who was not actively engaged in trying to get the motor started, was standing on the sidewalk nearby. He struck a match with which to light a cigarette, and in some way, not clearly disclosed, this set fire to the gasoline in the gutter. The blaze followed the gasoline down the gutter until it reached the Cferhold automobile, parked near the curb at a lower level, and ignited some of the gasoline that had formed a pool under the Gerhold automobile. The result was that damage was done to that automobile by the fire.

The legal consequences to the defendant must be determined as though it were a natural person who was present at the time. It seems clear that by voluntarily spilling this gasoline in the street it created a public nuisance and is responsible for all the natural consequences thereof. 30 Ohio Jurisprudence, 323, Section 26. The gasoline was a highly combustible substance. A mere spark was enough to set it aflame A public street is no place for such a substance to be exposed unguarded. It created a menace to the safety of the users of the street, ignorant of its presence. The Gerhold automobile was lawfully in the street The defendant by reason of the nearness of its employees was brought into relation with the automobile and owed a duty to its owner.

In 38 American Jurisprudence, 656, Section 14, it is said: “The law imposes upon every person who undertakes the performance of an act which, it is apparent, if not done carefully, will be dangerous to * * * the property of other persons, the duty to exercise his senses and intelligence to avoid injury.” And: “The law does impose upon every member of society the duty to refrain from conduct of a character likely to injure a person with whom he comes in contact, and to use his own property in such manner as not to injure that of another.”

Furthermore, this gasoline was ignited by one for whose negligent conduct the defendant was chargeable. He was in custody of this truck and the gasoline which it contained. The defendant owed a duty to the public to exercise reasonable care that harm might not result to others. It entrusted the discharge of that duty to its employee. Whether he performed that duty was an issue of fact and the trial court resolved that issue against the defendant. The defendant’s own employee, who struck the match, by his testimony showed that he recognized at the time that it was a hazardous thing. We would not be justified in disturbing the court’s finding.

We find no error in the record.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Phillips, J.

text:
    In re Snively.
    (No. 760
    Decided November 21, 1941.)

      Mr. B. W. Schertser, Mr. Herbert Mitchell and Mr. John Malik, for appellant.

      Mr. Carl J. Armstrong, for appellee.
   Phillips, J.

The Director of Public Safety of the city of Bellaire, acting in accordance with, and under authority of the provisions of the removal statute, Section 486-17a of the General Code, removed appellant Snively, for five alleged acts of misconduct, from his position of patrolman in the classified service of the safety department thereof, and subsequently duly notified him of such removal; notice of which, together with appellant’s explanation, were respectively duly filed with the civil service commission of that city within the statutory time and a reasonable period as provided by statute.

From the safety director’s judgment of removal appellant duly appealed to the civil service commission, which upon hearing found him guilty upon three charges as filed, modified the service director’s order of removal, and suspended appellant for 183 consecutive days without compensation.

From the judgment of the commission appellant appealed to the Court of Common Pleas of Belmont county, which court affirmed the judgment of the civil service commission; and from the judgment of the Court of Common Pleas he appeals to this court on questions of law.

The sole question presented for consideration by the contentions of the parties and their admissions by brief or oral argument is whether the civil service commission exceeded its authority in modifying the safety director’s judgment of removal, by suspending appellant for a period of 183 consecutive days without compensation, it being the claim of appellant that the modification to suspension limited the right of the commission to suspend appellant for a period not in excess of 30 days without compensation.

Appellee contends that the civil service commission had the authority to modify the safety director’s order of removal to any judgment less than removal, provided the judgment, as modified, was within reason and entered in good faith.

It is clear to us that, for the purposes of discipline and the efficient and expeditious management of the police department, Section 486-17, General Code, conferred power upon the safety director, as the appointing authority, to suspend appellant for a period not exceeding 30 days without compensation, whose judgment would be final and from which appellant would have no right of appeal, and Section 486-17a, General Code, conferred power upon the safety director to remove appellant from office, which he did, and from which appellant had the right to and did appeal.

However, we find no statutory restriction or limitation upon the power of the civil service commission to suspend appellant for the period of 183 consecutive days without compensation, which obviously was a penalty less than removal, and which under the evidence we believe was within reason, and imposed in good faith. Obviously it was a judgment less than removal and was not of such a lengthy period as to amount to a removal of appellant.

On the contrary, it is believed that it was the clear intent of the Legislature to confer discretionary power upon the civil service commission in the modification of a judgment of removal by the safety director to enter a judgment of suspension in excess of 30 days without compensation or for an indefinite period, providing such period did not amount to a removal from office, in which event other provisions are applicable.

Tt is believed therefore that the trial court did not commit error prejudicial to appellant’s rights in holding that the civil service commission had authority to modify the safety director’s judgment of his removal, and to enter an order of suspension for 183 consecutive days without compensation, which was reasonable, and entered in good faith.

The judgment of the lower court is affirmed.

Judgment affirmed.

Carter, P. J., and Nichols, J., concur.


author: Ross, P. J.

text:
    Niederlehner, Gdn., Appellee, v. Weatherly, Chief of Police, et al., Appellees; Peels et al., Appellants. (Two cases.)
    (Nos. 6231 and 6235
    Decided April 12, 1943.)

      Mr. Arthur C. Friche, for appellee, Ruth Niederlehner, guardian.

      Mr. George Metzger and Mr. Alfred G. Klein, for appellant, Señora Wilson.

      Mr. Clarh Wilby and Mr. Mitchell Wilby, for appellant, Mary Peels.

      Mr. Lorens Lemper and Mr. Gerrit Raidt, for appellant, Charles Schaub.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county. The plaintiff, guardian of David Mitchell, a lunatic, instituted -an action in replevin against the chief of police of the city of Cincinnati to secure certain specific currency totaling $6,190. The sheriff of Hamilton county took possession of the money under the writ of replevin.

Three other claimants to the money intervened in the action and filed cross-petitions. The defendant, chief of police, filed an affidavit of interpleader, disclaiming any interest in the money. An entry of inter-pleader was made, the effect .of which was to place all claimants including the plaintiff upon an equal basis. This required each one to sustain his claim by a preponderance of the evidence over the claims of the others. In the event no claimant was so successful the money should have been retuimed to the chief of police, the original defendant, the lawful custodian of the money.

Section 4398, General Code, provides:

“Stolen or other property recovered by members of the police force shall be deposited and kept in a place designated by the mayor. Each such article shall be entered in a book, kept for that purpose with the name of the owner, if ascertained, and the person from whom taken, the place where found with general circumstances, the date of its receipt and the name of the officer receiving it.”

Section 4400, General Code, provides:

“If within thirty days such money or property is claimed by any other person it shall be retained by such custodian until after the discharge or conviction of the person from whom taken and so long as it may be required as evidence in any case in court. If such claimant establishes to the satisfaction of the police judge that he is the rightful owner, it sháll be restored to him, otherwise, it shall be returned to the accused person, personally, and not to any attorney, agent, factor, or clerk of such accused person, except upon special order of the mayor after all liens and claims in favor of the municipality, against it have first been discharged and satisfied.”

The money consisted of old large type bills of five, ten, and twenty dollar denominations. There were no one dollar bills. The large type bills were withdrawn from circulation in 1929. Some gold certificates appeared among the bills and these were- exchanged for other currency.

The court, being unable to determine from the evidence that any claimant other than the plaintiff liad introduced substantial credible proof sustaining his or her claim to the money, ordered it turned over to the plaintiff, guardian of Mitchell, under the mistaken conception that no burden rested upon the plaintiff to sustain her claim to the fund. See 35 Ohio Jurisprudence, 564.

The plaintiff was not defendant in the original action ; nor was she in the position of defendant under the entry of interpleader. The entry of interpleader should not have been made, for the chief of police had a definite right to custody of the money against all claimants who were unable to prove right to possession by substantial credible evidence, such as was not found to exist as to any claimant by the trial court.

Appeals have been taken from the final order'disposing of the money by three of the claimants, who will be identified later.

The trial in this case lasted nine days. The bill of exceptions covers almost 1,000 pages. The exhibits are numerous. Counsel have been industrious and thorough in aiding the court in its study of the case and are entitled to more than a dogmatic statement of its conclusions. However, it must be apparent that no opinion confined to any reasonable limit could discuss this evidence with any degree of detail. The statement of the facts involved must therefore be confined to those pertinent facts which the court deems controlling of the issues presented.

Much of the evidence deals with fantastic claims which the trial court properly ignored. The evidence of the principal witness, Mitchell, aside from the fact that he is under guardianship as a lunatic and was only recently discharged from Lima State Hospital for the Insane, is so discredited by his extra-judicial statements-as to have absolutely no value except to prejudice the claim of the plaintiff.

The pertinent facts are that David Mitchell, the ward of the plaintiff, had been confined in Lima State Hospital for the Insane for some time previous to May 13,1940, when he escaped therefrom. He was arrested by Cincinnati police officers on May 23, 1940, at 3:30 a. m., at the corner of Eighth and John streets in the city of Cincinnati. The arrest was made because Mitchell tallied with a description which the police liad of him, obtained from the hospital. He was taken to the police station and searched. On the person of Mitchell were found ‘ ‘ old large type bills ’ ’ in denominations of five, ten, and twenty dollars, totaling the sum of $6,190. Concerning these facts there can be no question.

On being questioned as to where he had obtained the money, he stated he found it on Lock street. He was taken to Lock street and he indicated a vacant lot, pointing to a spot near a brick building. He claimed he had obtained the money from a small hole in the brick wall, but investigation by the officers failed to disclose any place where the money could have been concealed. He then said he had obtained the money from a house on Front street, to which place he, in company with the police, proceeded. He pointed to various holes in several rooms and finally to one hole in particular which, upon examination, showed that it had not been touched for some time. Mitchell’s claim was that he had obtained the money the same night as his arrest. This house on Front street is located near the Ohio river and is frequently submerged by floods. The money showed no signs of ever having been wet. These latter facts cannot be disputed.

Mitchell was returned to Lima State Hospital later in the day of his arrest, May 23,1940. While there, he made a new statement that he had entered a house at 422 Lock street and found the money there. This was substantially his evidence at the trial.

The house on Front street belongs to the claimant, Señora Wilson, and the house on Lock street belongs to Charles Schaub, each a claimant appellant.

Shortly after the account describing Mitchell’s arrest and the finding of the money on his person appeared in the newspapers, Mary Peels, another claimant appellant, appeared and claimed that she had hidden the money in the Front street house. She lived some four miles away from the spot. Both the Frofit street and the Lock street houses were untenanted and easily accessible to marauders, trespassers and thieves. Each was in a'dilapidated condition.

Charles Schaub, owner of the Lock street premises claims he had hidden the money in the Lock street house.. Some of his effects were still in it, but his residence for some time before had been many miles away. No one was left in charge of the premises.

Señora Wilson, owner of the Front street house, claims title to the money simply by virtue of her ownership of the Front street premises, and Mitchell’s extra-judicial statements.

First as to the claim of plaintiff: This evidence shows that Mitchell, of all the claimants is least entitled to this money. His testimony at the trial probably has a preference over his statements made elsewhere. From all of these, however, it appears he is a self-confessed thief, who entered the premises of another and took therefrom that which was not his. To talk of his “finding” the money under the circumstances is just pure twaddle.

As admissions precluding him or his guardian from advancing claims in his interest, of course, statements made upon the witness stand, are conclusive.

According to Mitchell’s own evidence he escaped from Lima State Hospital for the Insane for the express purpose of coming to Cincinnati, entering premises which he knew were the property of another, .taking the money therefrom and converting it to his own use. Assuredly, no one could seriously claim he had any right to do this, or that he had the slightest claim of any nature upon this money. Yet, if he is to be believed he did exactly what he purposed to do. In fact, be states he obtained information as to the money from a fellow inmate (who has never been identified or located) and had a map showing the location of the money. Again, if he is to be believed he was a trespasser at least, if not subject to a charge of breaking and entering. He is certainly guilty of larceny, and if his mental condition permitted could be prosecuted for the' same. To say he “found” this money is just to close the eyes to facts.

In Keesecker, a Minor, v. G. M. McKelvey Co., 141 Ohio St., 162, 47 N. E. (2d), 211, it is stated at page 166 of the opinion .that :

“A ‘trespasser’ may be defined as one who unauthorizedly goes upon the private premises of another without invitation or inducement, express or implied, but purely for his own purposes or convenience; and where no mutuality of interest exists between him and the owner or occupant. Heller v. New York, N. H. & H. Rd. Co. (C. C. A. 2), 265 F., 192, 194, 17 A. L. R., 823.”

That a trespasser can obtain no right to possession of property unlawfully removed from the premises of another, see Gratz v. McKee, 270 F., 713, 23 A. L. R., 1393; Mitchell v. Oklahoma Cotton Growers’ Assn., 108 Okla., 200, 235 P., 597, 41 A. L. R., 1011.

In this connection, it is to be borne in mind that here is being discussed only the effect of Mitchell’s evidence upon the claim of his guardian in his behalf, either as to her claim as plaintiff in the original action or a joint claimant under the entry of interpleader.

In 39 Ohio Jurisprudence, 819, it is stated:

“When a party testifies to positive ancldefinite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken, although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony, and cannot successfully complain if he is nonsuited or the court directs a verdict against him.”

In Hodges v. Ettinger, 127 Ohio St., 460, at page 462, 189 N E., 113, it is stated:

“The testimony of a party to an action necessarily subversive to his interests in the particular action is regarded in all courts as conclusive.”

Now, as to the other claimants, Wilson and Schaub, owners of the Front street and Lock street properties: They-, too, are dependent upon Mitchell’s evidence to show right to possession. They must depend upon one or the other of his statements to locate the money in a place which would show they were lawfully entitled to possession. This court is not called to go further than to demonstrate that, the trial court was in error in awarding the money to the guardian by way of default in the evidence of other claimants. This has been done It is not inappropriate, however, to say by way of comment that each of the claimants, including the plaintiff, are compelled to resort to Mitchell’s extrajudicial statements or evidence in order to sustain his or her claim. These statements are in such hopeless conflict, and the mental condition of the witness is such that no trier of facts would be justified in merely speculating as to which statement may be true. Mitchell, when arrested, first located the money in a vacant lot on Lock street. Why should he have not then said he found it in the Lock street house, or in the Front street house? Then he located it on Front street. Then back again, at the trial, to the house on Lock street. Would the trier of facts be justified, in any case involving merely a contest between the owners of the two pieces of property, in concluding that the witness told the truth at any particular time? His statements on the stand are fully impeached by his extrajudicial statements and then in turn are rendered completely valueless for any purpose except admission against his own claim.

Charles Schaub, Señora Wilson, and Mary Peels, who claims she hid the money in the Front street house, are all dependent on the evidence of this unbelievable witness. How could a court decide between them?

There is no suggestion that either Mary Peels or Charles Schaub are insane. Only such a mental state in these persons would warrant a trier of facts in concluding that the former went four miles from her residence, selected a ramshackle, tumble-down house in the flood district, one that was open to any casual trespasser who saw fit to enter, and hid more than $6,000 in currency in an open hole, in the wall of one of the rooms.

And only patent insanity would prompt the owner of substantial assets, possessing sizeable funds in bank, to place a substantial part of the same currency in an old dresser, in a dilapidated house which was found to be a fire menace by the city authorities, the rest in an old overcoat pocket hanging in a closet in such house, which like the Front street property was open to marauders, and then take up his residence many miles away, never visiting the premises to ascertain the safety of his hoard.

Yet Mary Peels and Charles Schaub seriously advance their claims in the face of inferences which manifestly mark their evidence as merely fantastic fiction.

Had the trial court permitted the money to remain in the possession of the police department of Cincinnati, subject to proof of right to possession by the true owner, and thus followed the statutes hereinbefore noted, that judgment would not have been disturbed. Such a conclusion is indicated by the state of the record.

The judgment of the Court of Common Pleas of Hamilton county is reversed, for the reason that it is against the weight of the evidence, and these cases are remanded for new trial and such further proceedings as may be according to law.

Judgment reversed and cause remanded.

Hildebrant and Matthews, JJ., concur.


author: Hildebrant, J.

text:
    Rockwell, a Minor, Appellant, v. The Queen City Bottling Co., Appellee. Rockwell, Appellant, v. The Queen City Bottling Co., Appellee.
    (Nos. 6249 and 6250
    Decided June 1, 1943.)

      Messrs. Dinsmore, Shohl, Sawyer & Dinsmore and Mr. Dwight W. Martin, for appellants.

      Messrs. Pogue, Helmholtz, Culbertson & French, Messrs. Dolle, O’Donnell S Cash and Mr. John R. Hahn, for appellee.
   Hildebrant, J.

These are appeals on questions of law from judgments of the trial court following instructed verdicts for the defendant at the conclusion of the opening statement of plaintiffs’ counsel and the supplemental opening statement. The trial court gave plaintiffs every opportunity to amend the petitions, hut plaintiffs refused and elected to stand thereon and requested opportunity to make a supplemental opening statement to the jury which request was refused after the same was made to the court. The appeals here arise out of two suits, one by a minor child, eight years of age, for personal injuries, the other, by the father for medical expenses and loss of services.

The petitions allege merely that defendant was engaged in the business of bottling and distributing soft drinks through retailers for resale to the public and incident thereto packed their product in pasteboard cartons, holding six bottles, fashioned with a handle thereon for-carrying purposes; that plaintiff minor child purchased six bottles of root beer contained in . such a carton; and that while carrying same from a drugstore to an automobile at the curb nearby the carton collapsed, the bottles fell to the sidewalk and were broken, and such plaintiff was injured by flying glass.

In the opening statement counsel for .plaintiffs describe the happening incident to the purchase and carrying and collapse of the carton of 6 bottles of root beer, describe the drugstore premises, and set forth that the cartons of bottled soft drinks are delivered by defendant and placed on the floor of this particular drugstore around the cosmetic counter or delivered in wooden boxes placed on a bench in the basement from where they are placed on the floor at the base of the cosmetic counter as needed by the retailer. The drugstore is described as of usual type with soda fountain, bottles, prescription counter, show cases, etc. It is stated that the defendant acquires the cartons, does not manufacture them, and packs them-in about thirty seconds; that it uses both new and used cartons (it being estimated that about 10% are used); and that the only inspection made by defendant was that made in the process of packing, requiring about half a minute, or in sorting the cartons for re-use with reference to inspecting them for breaks and as to cleanliness. To discount the possibility of any damage to them while in the drugstore, the statement goes on to venture the opinion that nine times out of ten nothing touches the cartons while in the store.

It is further stated “that carton collapsed due to the negligence of the defendant in failing to inspect, or in using old cartons,” and because of that plaintiff was injured. Counsel further stated that the carton herein Was lost; that they had no proof of its being a used carton and were not intending to interpose any evidence to that effect; and that the proof would consist of the purchase and collapse of the carton, that defendant procured the carton and was negligent in failing to inspect the cartons it purchased, or that its inspection was inadequate.

Counsel then requested to supplement the above statement in two respects, as follows:

“Mr. Martin: In two respects, your Honor. First, I want to clear up any doubt that my original statement may have created to the effect that we would prove that the particular carton involved had a defect which would be discovered upon inspection, or that it was an old carton. I want to make it clear to the jury, your Honor, that this carton has been searched for and we can not find it. We do not know what caused the carton to collapse. I want to make that clear, your Honor. I want also to state to the jury that on a prior occasion a carton which had been purchased by Mrs. Rockwell collapsed; that fact was made known to the defendant or to the defendant’s agents on a prior occasion.”

The following also appears on the record:

“Mr. Martin: I don’t know if it is proper order now to make a statement of my position or after I make it to the jury. If proper at this time I would like for the purpose of the record to make my position clear to your Honor. We feel we have stated a cause of action in our petition and we feel that cause of action in the first place does not have to state the theory upon which we believe we are .entitled to a recovery. We believe we are entitled to a recovery on one of three points, first, that this is a case to which the doctrine of res ipsa loquitur should be applicable. Second, we feel it is a case in which by virtue of the fact that we disposed of the negligence on the part of the persons who handled this carton subsequent to the time it left the control of the defendant and that we have removed other causes which might reasonably tend to cause this accident and that we show some negligence on the part of the defendant in the handling by defendant of this carton, it is only reasonable to suppose that this collapse of the carton was due to the negligence of the defendant. Third, that the defendant had furnished a carton for the purpose of resale to a consumer to be used in a particular way, and for the purpose for which it was intended, and when used for the purpose for which it was intended the carton was inadequate. ’ ’

Plaintiff here seeks to hold the defendant responsible in damages for the breach of an implied warranty or negligence,' or both, and relies principally upon the case of Sicard v. Kremer, 133 Ohio St., 291, 13 N. E. (2d), 250, construing Section 11305, General Code, to sustain the sufficiency of the allegations of the petition and opening statements of counsel. That case is readily distinguishable from the case at bar, as involving an article inherently dangerous and the petition containing allegations of negligence.

As far back as Hess v. Lupton, 7 Ohio (Pt. 1), 216, the Supreme Court of Ohio has said: “Action for damages consequent on an act innocent in itself, and injurious only in consequence of particular circumstances, the declaration must set out the circumstances showing the wrong.”

Plaintiffs allege and offered to prove merely that defendant put the carton in circulation and the happening of its collapse, while out of the possession and beyond the control of defendant, mentioning no act or ©mission to act of defendant in connection therewith, ■and leaving to utter speculation and the limitless field ■of guesswork as to what did or did not happen to the ■carton after being placed in the hands of the retailer. If these be the ultimate facts, they fail to state a cause ■of action on an implied warranty as to fitness for a particular use or in an ordinary negligence case. If the so-called cursory inspection of the defendant amounted to negligence, there is an utter lack of any causal connection between that and its being the proximate cause of the injuries herein complained of.

This court has said in Flamm v. Coney Island Co., 49 Ohio App., 122, 195 N. E., 401, in the third paragraph of the syllabus:

“Mere co-existence of negligence and injury is not ■sufficient to establish a causal connection between the two, nor can difficulty in securing evidence of that •causal connection be substituted for such proof.”

The holding and discussion in the case of St. Marys Gas Co. v. Brodbeck, Admr., 114 Ohio St., 423, 151 N. E., 323, are pertinent to the cases at bar. The judgments are affirmed.

Judgments affirmed.

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


author: Guernsey, P. J.

text:
    The State, ex rel. Mihlbaugh, v. Bogart et al.
    (No. 851
    Decided July 17, 1943.)

      Mr, Melvin C. Light and Mr. Willis 8. Siferd, for-relator.

      Mr. Paul T. Landis and Mr. John H. Davison, for respondents.
   Guernsey, P. J.

This is an action in • prohibition brought in the name of the state of Ohio on the relation of Edward P. Mihlbaugh, relator, against Mel Bogart, Clarence E. Mumaugh, Francis W. Durbin and James Jacobs, as members of the Board of Elections of Allen county, Ohio, respondents, to prohibit the respondents from printing on the ballot for the primary election to be held in the city of Lima, Ohio, .on August 10, 1943, the names of any persons whose nominating petitions were filed with the respondents after July 1, 1943, and from holding such primary election in that city for any offices other than those of councilman of the first ward and councilman of the fifth ward.

This cause was submitted to this court upon the petition of the relator, the answer and amendment to answer thereto of the respondents, and a statement of facts agreed to by all the parties.

In the answer of the respondents, the following facts pleaded in relator’s petition are admitted to be true:

The respondents are the duly appointed, qualified and acting members of and constitute the Board of Elections of Allen county, Ohio.

The city of Lima is a municipal corporation of the state of Ohio, having a charter which was adopted as alleged in relator’s petition, and Sections 3, 4, 5, 6, 8, 9 and 10 of such charter of the city of Lima, Ohio, are in the words and figures set forth in relator’s petition.

Section 4785-67 of the General Code of Ohio provides that primaries in the years, except presidential years, shall be held on the second Tuesday in August next preceding a general.election. The year 1943 is not a presidential year and the second Tuesday in August, 1943, falls on August 10, 1943.

Section 3 of the charter provides as follows:

“A general election for the choice of elective officers provided for in this charter shall be held on the first Tuesday after the first Monday in November in odd numbered years. Elections so held shall be known as regular municipal elections. Such other elections shall be held as may be required by law, or provided for in this charter.”

Section 4 of the charter provides as follows: “Candidates for all offices to be voted for at any municipal election under the provisions of this charter shall be nominated at a non-partisan primary election to be held at the time provided by the general election laws of the state. Any matters which by the terms of the charter may be submitted to the electors of the city at any special election may be submitted at a primary election or at a regular election.”

Section 5 of the charter provides as follows:

“The name of any elector of the city shall be printed upon the ballot, when a petition in the form hereinafter prescribed shall have been filed in his behalf with the election authorities. Such petition shall be signed by at least two hundred (200) electors of the city, if for the nomination of a candidate for an office filled by election from the city at large, and by at least fifty (50) electors of the ward if for the nomination of a candidate for an office to be filled by election from a ward. ’ ’

Section 6 of the charter provides as follows:

“The signatures to a nominating petition need not all be appended to one paper, but to each separate paper there shall be attached an affidavit of the circulator thereof stating that each signature appended thereto was made in his presence and he believes it is the genuine signature of the person whose name it purports to be. Bach signer of a petition shall sign his name in ink or indelible pencil, and shall place on the petition after his name his place of residence by street and number, or other description sufficient lo identify the place, and give the date when his signature was made.”

Section 8 of the charter provides as follows:

“All separate papers comprising a nominating petition shall be assembled and filed with the election authorities as one instrument at least forty days prior to the day of the primary election. Within ten days after the filing of a nominating petition the election authorities shall notify the person named therein as a candidate whether the petition is found to be signed by the required number of qualified electors. If insufficient, the person named therein as candidate may amend said petition by filing, within five (5) days after notification of insufficiency by the election authorities, additional petition papers. Within five (5) days after the filing of the additional petition papers, the election authorities shall notify the person named therein as candidate whether the amended petition is found to be signed by the required number of qualified electors.” Section 9 of the charter provides as follows:

“Any eligible person placed in nomination as hereinbefore provided shall have his name printed on the ballots, if, within five days after the notification provided for in the preceding section, he shall have filed with the election authorities a written acceptance of the nomination.”

Section 10 of the charter provides as follows:

“The number of candidates for any office at any regular municipal election, in the city at large or in each ward, as the case may be, shall be the two candidates on the primary election ballot receiving the highest number of votes at the primary election. In case there shall not be for any office more than two persons who shall have filed petitions as provided for in this charter, then said persons shall be the candidates at the regular municipal election and the primary for the particular office shall not be held.

“The name of each person who is nominated in compliance herewith shall be printed on the official ballot at the general election, and the names of no other candidates shall be printed thereon.”

The material facts, shown by the agreed statement of facts, are as follows:

Prior to July 1, 1943, on June 21, 1943, relator filed with the Board of Elections of Allen county, Ohio, a nominating petition for the office of mayor of the city of Lima, Ohio.

On June 30, 1943, the Board of Elections of Allen county, Ohio, notified relator that his nominating petition had been found to be sufficient and valid. On July 1, 1943, relator filed with the Board of Elections of Allen county, Ohio, his written acceptance of the nomination.

No other candidate for the office of mayor of the city of Lima, Ohio, filed with the Board of Elections of Allen county, Ohio, a nominating petition on or before July Ij 1943. On July 2, 1943, five candidates for the office of mayor of the city of Lima, Ohio, filed their nominating petitions with the Board of Elections of Allen county; Ohio.

On July 3, 1943, relator filed with the Board of Elections of Allen county, Ohio, an objection and protest against the acceptance of any nominating petitions filed after midnight on the day of July 1, 1943, and against the including on the primary ballot of any names of persons whose nominating petitions were filed after that time.

On July 6, 1943, the board of elections passed the following at a special meeting:

“Motion by Mr. Mumaugh, seconded by Mr. .Durbin, ' that the.protest signed by Edward P. Mihlbaugh, received July 3, 1943, be received and filed.”

Signatured — “4 yea votes.”

Respondents have announced their intention to, and will unless prohibited by this court, print on the ballots for the primary election to be held on August 10,1943, the names of the persons whose nominating petitions were filed on July 2, 1943.

The municipal offices of the city of Lima, Ohio, to be filled by election during the year 1943, are as follows:

Mayor; councilman at large; councilman for the first ward; councilman for the second ward; councilman fov the third ward; councilman for the fourth ward; councilman for the fifth ward; councilman for the sixth ward; city solicitor; municipal judge; clerk of the Municipal Court.

For only two of these offices, to wit, councilman for the first ward, and councilman for the fifth ward, had more than two persons filed nominating petition papers on or before July 1, 1943.

There are seven precincts in the first ward; there are nine precincts in the fifth ward; and there are 63 precincts in all the wards of the city of Lima, Ohio.

Respondents have announced their intention to, and will unless prohibited by this court, conduct a primary election in all of the precincts in the city of Lima, Ohio, and will expend public moneys therefor.

There is to be nominated and elected during the year 1943, a judge of the Municipal Court of the city of Lima, Ohio.

The city of Lima is a political subdivision as defined by Section 4785-3, paragraph q, General Code of Ohio.

The Board of Elections of Allen county, Ohio, closed its office at its usual closing time at five o’clock p. m., eastern war time, on July 1, 1943. The board opened its office at nine o’clock a. m., eastern war time, and kept the same open until 7:30 o’clock p. m., eastern war time, on July 2, 1943, and received nominating petition papers on July 2, 1943, for municipal offices of the city of Lima, Ohio.

No nominating petitions were filed on July 2, 1943, before 11 o’clock a. m., eastern war time.

The Board of Elections of Allen county, Ohio, on June 21, 1943, at a regular session thereof, by unanimous agreement of all members of the board, determined that the date, July 2, 1943, until 7:30 o’clock p. m., eastern war time, was the last day on which nominating petitions for municipal offices of the city of Lima could be filed with the board, and thereafter advised prospective candidates who applied for nominating petitions, and who thereafter filed such petitions with the board, and also advised the newspaper reporters, and others, that July 2, 1943, was the last day for filing such nominating petition papers.

The date of July 2, 1943, was announced through the newspapers, and by the members of the board, as the last day for filing the nominating petitions.

The minutes of the meeting of the board on June 21, 1943, on this subject, read as follows:

“The clerk was ordered to notify all printers that the board of elections would meet at 6:30 p. m. on July 2,1943, for the purpose of receiving bids on printing the ballots for the primary election.

“There being no further business, the board adjourned until July 2, 1943, at 6:30 p. m., at their office, for the purpose of receiving and filing nominating petitions of the candidates of the city of Lima, and for receiving and opening the bids for the printing of the ballots.”

The board thereafter held a special session on July 2,1943, a special session on July 6,1943, and a special session on July 9, 1943; and on that date, July'9, 1943, the minutes of the board recite the following:

“The minutes of June 21, 1943, July 2, 1943, and July 6,1943 meetings, were read and approved.”

It is the general contention of relator that the provision of Section 8 of the charter of the city of Lima, that “All separate papers comprising a nominating petition shall be assembled and filed with the election authorities as one instrument at least 40 days prior to the day of the primary election,” is mandatory and that under this provision the last day in which the board of elections was authorized to file nominating-petitions for the primary election to be held August 10th, was July 1st, and consequently that the filing of the nominating' petitions of the various candidates mentioned in relator’s petition, on July 2nd was wholly without authority in law and therefore insufficient to warrant the board of elections in printing the names of the candidates provided for by such petitions, on the ballots as candidates for office at the primary election to be held August 10, 1943. And upon the assumption that this general contention is correct, the relator further contends that under the provisions of the charter of the city of Lima it is unnecessary to hold a primary election in such city for any offices other than those of councilman of the first ward and councilman of the fifth ward, for which there are more than three qualified candidates, and that the expenditure of public funds for the holding of such primary election for offices other than the two offices mentioned, would constitute an illegal expenditure of such fund.

The same rules of law applicable to the construction of statutes are applicable to the construction of municipal charters. It has been held that where a statute requires that an act be performed a fixed number of days previous to a specified date, the last day should be excluded and the first day included in making the computation. State, ex rel. Jones, v. Board of Deputy State Supervisors and Inspectors of Elections, 93 Ohio St., 14, 112 N. E., 136.

Applying this rule to the charter provision as to the filing of the nominating petitions, it is apparent that July 1,1943, was the last day on which nominating-petitions for the primary election to be held August 10, 1943, could be filed in conformity with sucb provision.

As tbe nominating petitions of candidates whose names are' sought to be excluded from the ballot were all filed on July 2, 1943, subsequent to tbe last day for sucb filing prescribed by tbe charter, it is necessary to determine whether sucb provision is mandatory, and, if mandatory, tbe effect of sucb failure to comply therewith.

In a case involving tbe filing of a party nomination certificate with tbe board of elections after tbe expiration of tbe time prescribed by statute, it was held:

“Where it appears that sucb certificate has been filed in ample time in which to advertise for bids and print tbe ballots, and no objection is made otherwise, except as to tbe precise time in which it was done, and that tbe non-observance in this regard could not affect tbe result of tbe election, its fairness or honesty, sucb certificate so filed will be deemed to be filed in time, notwithstanding tbe requirement of tbe statute is mandatory in form.” State, ex rel. Fulton, v. Deputy State Supervisors of Elections of Licking County, 17 C. C., 396, 9 C. D., 427.

Tbe case mentioned is tbe only one in Ohio directly in point, but is contrary to tbe great weight of author-" ity of cases involving similar statutory provisions in states other than Ohio. 72 A. L. R., 290, 296.

However, tbe same general result has been reached in decisions in other jurisdictions, some of which are based on tbe same general reasoning, and others on additional reasoning.

In tbe-case of Manning v. Young, 210 Wis., 588, 247 N. W., 61, involving tbe filing of primary nomination papers -on a day subsequent to tbe expiration of tbe period prescribed by statute, when tbe last day of such period fell on a holiday, tbe court, basing its decision on the same general reasoning adopted in the case last mentioned, granted a writ of mandamus ordering the names of the petitioners placed upon the ballot, laying down the following rules which we approve as applicable to the facts in the case at bar, to wit:

1. Laws relating to primaries and elections do not confer a right of qualified persons to become candidates, but merely regulate the exercise of such right in an orderly way.

2. Laws regulating electors ’ rights are merely directory, while those prescribing qualifications or conditions are mainly imperative.

3. A narrow or strict construction of statute fixing a time for filing primary nomination papers must be avoided.

4. Statutory regulation of a franchise right must be so construed as to insure, rather than defeat, the exercise thereof, when and where possible.

In the three cases hereinafter mentioned, the decisions are based on similar reasoning, plus the reasoning that although the statutory provisions fixing the dates in which nominating petitions may be filed are mandatory, yet there may be legal excuses for noncompliance therewith.

In the case of People, ex rel. Simmons, v. Ham (1907), 106 N. Y. Supp., 312, it was held that the delivery of a nomination certificate to an official unauthorized to file the same, in reliance upon the statement of such official that it was his duty to file the same, constituted a legal excuse for the failure to file such certificate in the time prescribed by statute with the proper official, and the court ordered that the nominee’s name be placed on the ballot.

In the case of In re Bayne (1910), 127 N. Y. Supp., 915, it was held that the designation of an incorrect date on an election calendar issued by the Secretary of State as the final day for filing constituted a legal excuse for not filing a nomination certificate within the time prescribed by a mandatory statute, and a motion was granted ordering the name of the candidate placed on the ballot.

In the case of State, ex rel. Ashton, v. Harris (1934), 115 Fla., 3, 155 So., 100, it is indicated that sudden illness, accident, or mailing in time to reach filing officer in ample time before the last day expires, and the like, may constitute legal excuse for not filing within the time prescribed by statute.

These cases simply represent an application to mandatory provisions of election laws, of the doctrine of legal excuse for noncompliance with statutory, charter or ordinance provisions, which the courts of this state have frequently applied to common-law, ordinance and statutory regulations designed for the safety of the public, and we approve the doctrine of legal excuse for noncompliance as being applicable to the provision of the charter of the city of Lima, above mentioned.

Applying the last rule approved by us, to the facts of the instant case, in the light of the general rule first approved by us, that statutory regulation of franchise right must be so construed as to insure, rather than defeat, the exercise thereof when and where possible, it is obvious that in this case there are two different states of facts arising from a mistake of the board of elections, charged with the duty of filing nominating petitions, as to the computation of time for filing such petitions under the provisions of the city charter, which constitute legal excuses for failure to file the nominating petitions within the time prescribed by the charter, to wit:

1. The determination by the board, that the date of July 2, 1943, was the last day upon which nominating petitions for municipal officers of the city of Lima could be filed with the board, the advice given by the board to prospective candidates who applied for nominating petitions which were thereafter filed with the board, and to newspaper reporters, and others, that July 2, 1943, was the last day for filing nominating petitions, and the announcement through the newspapers and by members of the board of the date of July 2,1943, as the last day for filing such nominating petitions.

2. As the charter does not prescribe any hour of the day as the time before which nominating petitions should be filed, such petitions might be filed at any time during the last day prescribed for filing, up to midnight of that day. The closing by the board of elections of its offices at five o’clock p. m., eastern standard time, on July 1, 1943, precluded candidates from exercising their right under the charter provision, to file nominating petitions on such date from the hour at which such office was closed until midnight of that day, and had the legal effect of permitting the exercise of the right to file on the following day.

The failure to file the nominating petitions within the time prescribed by the charter being legally excused, as above mentioned, the filing of the petitions at the time they were filed, was lawful and valid, and the respondents are required by law to print the names of the candidates nominated thereby, on the ballot for the August primary and to hold a primary election for the offices for which they are candidates.

For the reasons mentioned, the temporary restraining order heretofore issued herein will be dissolved, and the petition of the relator will be dismissed at his costs.

Writ denied.

Jackson and Middleton, JJ., concur.


text:
    Willett, Admr., Appellee, v. New York Central Rd. Co., Appellant.
    (No. 6326
    Decided July 19, 1943.)
    . Messrs. Hoover, Beall & Whitman, for appellee.

      Mr. Thomas A. McCormaclc and Mr. George C. Heath, for appellant.
   Matthews, J.

One of the assignments of error— the second — is that the court erred in overruling defendant’s motion for a new trial. One ground alleged in such motion was misconduct.on the part of a juror.

This appeal now comes before this court upon the plaintiff’s motion to strike the second assignment of error from the files on the ground that it relates “to matters not appearing on the record in this case and .therefore not subject to consideration by this court in the absence of a bill of exceptions.”

Several affidavits were filed with the motion for a new trial. They were referred to in the motion which contained the statements that the affidavits were made a part of the motion. The order of the court overruling the motion makes no reference to the affidavits.

Are these affidavits bearing the file mark of the clerk of the court a part of the record in the absence of a bill of exceptions?

It seems clear that the mere filing of certain'affidavits with the clerk makes them a part of the record for the intended purpose. Other affidavits, though filed, are not a part of the record, unless made so by a bill of exceptions. Affidavits of the latter sort are the ones that, in most cases, have engaged the attention of the courts. The difference in the effect of the filing seems to result from the original purpose of the filing of such affidavits or the subsequent use sought to be made of them.

This subject is discussed in 4 Corpus Juris Secundum, 1237 et seq., Section 762 (b), as follows:

“As a general rule affidavits are not part of the record proper, being in the nature of evidence, and cannot be considered, even though copied into the transcript or attached to the brief or a petition in error, or even though appearing in connection with the motion, or filed with the papers in the case; they must be presented as part of appeal record in manner required by practice in particular jurisdiction, which is usually by bill of exceptions, statement, settled case, order of court, or, if the proceeding is in equity, by certificate of evidence; and the record must also show that the affidavits were presented to and considered by the court.

“These rules have been applied to affidavits used in support of or on the hearing of an application or motion for a change of venue, for a continuance, for leave to amend, for suppression of depositions, for judgments on the plea-dings and evidence, for a new trial, and for leave to introduce further evidence; an application or motion to vacate an order of dismissal, to set aside or open or impeach a judgment or decree, to set aside or vacate a default, to dismiss a bill of complaint, to set aside or vacate a sheriff’s sale, to obtain an injunction or the appointment of a receiver, to sustain or dissolve an injunction, to obtain a writ of replevin, to sustain, discharge, or dissolve an attachment, to discharge a garnishee, to quash a scire facias or other process, or to correct the record of an inferior court; affidavits in support of objections to jurisdiction, affidavits of jurors introduced to impeach their verdict, affidavits to impeach an award of arbitrators, affidavits apparently used on the hearing of a mandamus proceeding, and affidavits filed in an intermediate court.

“It has been held that the court cannot consider such affidavits, although attached to, or contained in, the transcript and certified by the clerk.

‘Limitations of general rule. While the general rule, as has just been stated, is one of the fundamental doctrines of appellate procedure, and, as appears from the host of citations, has been laid down in cases almost innumerable, yet there are certain well.founded exceptions. Thus, where by statute or by order of court founded on statute an affidavit, in certain cases, is made a part of the record proper, it need not be brought up by bill of exceptions. It has been held that an affidavit filed with the clerk as a basis on which process is to be issued ministerially by him is, like an affidavit for publication, a part of the proceedings in the case and a part of the record proper, and likewise, that when an affidavit stands in place of a pleading, it is properly brought up by the record, and in chancery affidavits used on the hearing may form part of the record, and also affidavits recited in the judgment of the court below and thus appearing of record ”

See, also, 3 American Jurisprudence, 224, Section 592.

Most of the Ohio cases brought to our attention involved affidavits which were not upon filing, ipso facto, parts of the record. Sleet v. Williams, 21 Ohio St., 82; Garner v. White, 23 Ohio St., 192; Goldsmith v. State, 30 Ohio St., 208; Schultz v. State, 32 Ohio St., 276; Long v. Cassiero, 105 Ohio St., 123, 136 N. E., 888; Montgomery v. State, 12 C. C., 679, 4 C. D., 199; Workman v. Green Cab Co., 29 Ohio App., 349, 163 N. E., 506; Simes v. Dayton-Xenia Ry. Co., 24 Ohio Law Abs., 595, 36 N. E. (2d), 517. Some of these cases involved both kinds of affidavits, and the court either expressly or impliedly recognized the distinction between them.

Without attempting to catalogue all types of affidavits, it seems safe to say that the general rule is that whenever the sole office or purpose of the affirmations contained in an affidavit is to prove or disprove an issue of fact, such affidavit fails within the rule that evidence is no part of the record unless made so by a bill of exceptions.

Where, however, such affidavit serves some other purpose, such as an affidavit for publication, an affidavit to secure the issuance of an attachment, or some other process by the clerk, or where it takes the place of a pleading, it is a part of the record for what it purports to be, regardless of the truth of its affirmations.

And, of course, no matter what the nature of the document, whether the filing is authorized by law or not, the record will disclose to a reviewing court that it had been filed. If the mere fact of filing and the contents, regardless of the truth, are all that are necessary for the reviewing court to know to decide the issue, no bill of exceptions is necessary. The record described in Section 11607, General Code, duly certified, imports with absolute verity that it is the record in the case as made by the clerk, but it does not prove the truth of the assertions of parties and witnesses in the pleadings, affidavits etc., although the findings and judgment based thereon are res judicata and may not be collaterally attacked. And it does not prove that what is contained in the record, so certified, is rightfully there. That depends on the law.

The use of affidavits or motions for new trials is authorized by Section 11579, General Code. It provides:

“The application must be made by motion, upon written grounds, filed at the time of making the motion ; the causes enumerated in subdivisions two, three and seven, hereinbefore enumerated, must be sustained by affidavits or depositions, showing their truth, and may be controverted by affidavits or depositions, and for this purpose depositions may also be taken in the county where the action is pending.”

In the absence of this section, proof of misconduct of jurors could only be established in-the same manner as any other issue of fact, i. e., upon notice and an opportunity to cross-examine. By this section, a different method of proof is permitted, but the purpose is, as stated in the section, to show the truth of the averment in the motion for a new trial, which is deemed denied, and may be controverted by counter-affidavits.

It is thus seen that the only purpose that could have been served by these affidavits was to prove the truth of the charge of misconduct. In other words, they were a means of proof to be used at a hearing of the issue to which they were relevant. While it has long been the practice to file such affidavits with the clerk, there is no law requiring or even authorizing their filing. The most the filing does is to give the adverse party an opportunity to inspect them before the hearing, to be advised of their contents and to traverse them by counter-affidavits.

Attaching the affidavits to the motion and making them a part of it could not add anything to their legal status.

In the absence of a bill of exceptions, the reviewing court does not know and cannot know whether these affidavits were brought to the attention of the court at the hearing, that is, offered in evidence, or whether they constituted all the evidence before the court at such hearing.

In order for this reviewing court to decide the issue of whether the court should have granted a new trial, because of misconduct of the jurors, it must know more than that affidavits were filed. It must know the contents of the affidavits that were offered in evidence at the hearing, and what, if any, other evidence was introduced. It could know that only by the certificate of the trial judge.

For these reasons, the court holds that these affidavits cannot be used in determining the truth of the charges of misconduct of the jurors, and, as there is no bill of exceptions, this court cannot consider any ■assignment of error predicated upon issues of fact.

The appeal is retained and the cause set for hearing as to any assignment of error apparent upon the record, in the absence of a bill of exceptions

Motion sustained

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


author: Carpenter, J.

text:
    Little, Appellant, v. Fittro, Appellee
    (No. 485
    Decided April 12, 1943.)

      Mr, Clifford F. Brown, for appellant.

      Mr. Earl 8. Miller, for appellee.
   Carpenter, J.

Plaintiff sold to defendant various articles of personal property, used by him in a roadside restaurant operated in connection with an oil and gas station, for $1,200 of which $900 was paid in cash and $300 by note secured by a mortgage on the articles sold, which included a bottle cooler, a fuel gas tank and four electric lighting fixtures. On the note, $125 was paid, and in this action judgment for the balance, $175, and foreclosure of the mortgage were sought..

Defendant admitted execution and delivery of the note and that $175 of it was unpaid. By cross-petition, he alleged that plaintiff fraudulently represented that he had a clear title to all of the articles sold, including those above described, and that defendant later learned that the bottle cooler was encumbered by a valid mortgage on which $192 was unpaid, and the gas tank and fixtures were not owned by plaintiff at all, and by reason thereof he was damaged in the sum of $500 for which he asked judgment. The answer to the cross-petition denies that plaintiff made such representations.

On the trial it was stipulated that the bottle cooler was mortgaged as alleged and that the other two items were not owned by plaintiff.

The verdict on the cross-petition was for the defendant for $500, and the court, deducting the $175 balance unpaid on the note, entered judgment for $325.

This appeal on questions of law was taken by plaintiff. The errors assigned largely relate to rejection of evidence offered by plaintiff and the charge of the court, both of which related to the question of fraudulent intent in the mind of the plaintiff when he sold the articles in question. The court was correct in its rulings in both respects. Much of the tendered evidence consisted of self-serving declarations of the plaintiff made by or to him in the absence of the defendant All was objectionable for the reason that if the plaintiff represented he owned the property, or even sold it without such representation, his intent was immaterial; even if he thought he did own it and it turned out that he did not, he was liable to the buyer for the damage resulting which, in this case, was the value of the goods. Section 8393, General Code, sets forth the implied warranties in a sale “unless a contrary intention appears.” These include “a right to sell” by the seller, to “quiet possession of the goods as against any lawful claims existing at the time of the sale,” and “that the goods shall be free at the time of the sale from any charge or encumbrance in favor of any third person, not declared or known to the buyer * * *.”

That plaintiff sold to defendant the gas tank and lighting fixtures, seems practically undisputed. There was a conflict in the evidence whether the bottle cooler was sold subject to the mortgage. On this question and on the value of the items as measuring damages, there is ample evidence to sustain the verdict and the judgment which is accordingly affirmed. ,

Judgment affirmed.

Lloyd and Stuart, JJ., concur.


text:
    The John Weenink & Sons Co. et al., Appellants, v. Blahd et al., Appellees.

      (No. 19022
    Decided July 21, 1943.)

      Mr. Arthur P. Gustafson, for appellants.

      Mr. Morton 8. Zaller and Mr. Morris 1. Goldsmith, for appellees.

      Messrs. Squire, Sanders & Dempsey, for The Equitable Life Assurance Society of the United States.
   Ross, P. J.

This is an appeal on questions of law and fact from a decree of the Common Pleas Court of Cuyahoga county, in favor of the defendants.

The evidence is incorporated in an agreed statement of facts presented to this court and in certain exhibits.

The action in the trial court was initiated by the filing of what is commonly called a “creditor’s bill” through which the proceed? of a certain policy of insurance, issued upon the life of Dr. Mose E. Blahd, are sought to be applied to the satisfaction of the judgment debt of the plaintiff.

A number of other judgment creditors filed intervening petitions seeking the same relief. The plaintiff and such intervening petitioners will hereafter be called “creditors.”

In view of the form in which the evidence is presented to this court, it is deemed necessary to state only those facts which are considered pertinent to the conclusions of law reached herein.

Dr. Mose E. Blahd had, for many years prior to his death on February 28, 1940, been a successful practicing surgeon in the city of Cleveland, Ohio.

Approximately ■ ten years before his death he suffered a severe impairment to his health, which had a direct effect upon the extent of his income, reducing it from some $25,000 to from $10,000 to $15,000 per annum.

In the year 1930 the deceased was in serious financial difficulty, largely caused by the acquiring of a “palatial home,” the cost of which exceeded his financial resources to the extent of some $20,000.,

On November 30, 1930, the deceased and his wife, who was jointly obligated with him, entered into an agreement with their then creditors, by virtue of which certain persons were designated as trustees and, according to the provisions of which, the deceased and his wife were obligated to pay a monthly sum toward the liquidation of. their debts. It was agreed by the debtors that such monthly payments should not be less than $750.

During the period following the execution of this agreement to the death of the deceased, some ten years later, less than $3,000 was paid by the debtors upon their indebtedness. During this period the deceased received an income from his profession of an average of at least $10,000 per year. He and his wife at the inception of this period were insolvent and continued to be insolvent until the date of the death of Dr. Blahd. Such fact must have been known to the creditors of the debtors for no other reason than that the monthly payments were not made as agreed

In 1935, the debtors extinguished their mortgage indebtedness upon the residence, heretofore mentioned, by deed to the first mortgagee. A second mortgage given to the creditors, who signed the liquidation agreement, was satisfied by the payment of $500 to the creditors’ trustees by the first mortgagee upon surrender of such second mortgage to it.

In. the agreed statement of facts is a tabulation showing the various policies of insurance isáued upon the life of the deceased, and the premiums paid upon same during the period 1930-1940.

From this tabulation it appears that in this period, 1930-1940, the deceased paid or caused to be paid premiums amounting approximately to $40,000, which included the sum of approximately $19,000 paid upon the policy, directly involved in this controversy or its predecessor, a term policy which was converted in the year 1935 into a straight life policy. The proceeds of this latter policy amount to $45,283.81 and will be paid by The Equitable Life Assurance Society of the United States to the widow of the deceased, his joint debtor, unless the claims of the creditors are sustained, in monthly payments under an optional spendthrift agreement between the deceased and the insurer, upon the selection by the widow-beneficiary of an alternate provision for payment.

The deceased died while temporarily a resident of Tucson, Arizona, to which city he and his wife had repaired in order that an operation might be performed on deceased.

There can be no question that both the deceased and bis wife intended to return to their permanent residence in Cleveland, Ohio, although the widow has remained in Tucson, Arizona, since the death of . her husband. The deceased left no estate, with the possible exception of $500 pajmble to his estate under a health and accident policy. Otherwise, the deceased and his widow were both insolvent at. the time of his death. Disposing of the claim of the creditors as to this asset of the deceased, it is apparent that Section 9394, General Code, has no application and furnishes no exemption, and that this asset is subject to the claims of creditors. Baxter v. Old National-City Bank, 48 Ohio App., 533, 189 N. E., 514. However, it is apparent also that such sum may not be reached except through process of a regular administration of the estate of deceased. No order is, therefore, made thereon.

It appears also from the agreed statement of facts that the premiums paid on the policy herein involved were received from four sources: First, directly from the income of the deceased; second, from policy loans and dividends upon policies; third, by drawings made by the secretary of the deceased upon a bank account held jointly by the deceased and such secretary; and fourth, by contributions or loans made by others including the minor son of the deceased.

At no time did the deceased ever attempt to conceal his insolvency or the payments of premiums upon his insurance. It is reasonably inferable from the facts agreed upon that his creditors were continuously aware of his financial condition and such payments.

The deceased from time to time begged for forbearance from his creditors, in order that he might avoid taking advantage of the Bankruptcy Act.

It is noted that the deceased paid premiums upon a policy in which the creditors were beneficiaries, but which, the creditors not desiring to continue the payment of premiums and the deceased claiming inability to do so, was allowed to lapse in 1938.

The deceased assigned a policy of $10,000 originally payable to his estate to Mildred S. Benjamin, his secretary. The maturity value of this policy was $4,195.30. The total premiums paid on this policy during the period 1930-1940 amounted to $2,997.18. This policy is not involved in the present action except to the extent that evidence of the payment of premiums thereon is considered in connection with the total amount of premiums paid by the deceased. It appears from the policy of insurance herein involved that the insured had full control of this policy and by its provisions was permitted to assign or pledge it without the consent of the beneficiary. Such being the case, any loan secured by the insured upon the policy, upon payment became a part of the assets of the insured, subject to his disposition as he saw fit, whether for the payment of premiums on insurance or the liquidation of other liabilities. Kuhn v. Wolf, 59 Ohio App., 15, 16 N. E. (2d), 1017.

It can make no difference whether the sum borrowed is a large amount or merely enough to pay a premium.

The same principle applies to dividends paid deceased from the policy. These again became subject to the dominion and control of the deceased to the same extent as his fees.

Summarizing these facts, it appears that the annual income of deceased during the period 1930-1940 was some $10,000 per annum; that he paid for insurance during that period approximately $4,000 per annum; that during the same period he paid less than $3,000 upon his debts, $500 of this amount being paid by the first mortgagee to the trustees of creditors; that he borrowed upon his insurance policies to the extent of $3,020.17 and received dividends, which he applied upon his insurance, of $745.50; and that his secretary paid $1,409.02 and others lesser amounts.

• Considering the amounts paid for insurance by the deceased during this period and the sums paid by loans and dividends, there was an excess in income over disbursements of almost $7,000 per annum. If the deceased had paid only $2,000 per year toward the liquidation of his debts, they would have been extinguished at his death. It is obvious that the interests of his creditors had a most minor position in the mind of the deceased.

Section 9394, General Code, provides:

“All contracts of life or endowment insurance or an- • nuities upon the life of any person, or any interest therein, which may hereafter mature, and which have been or shall be taken out for the benefit of, or made payable, by change of beneficiary, transfer or assignment to, the wife or children, or any relative dependent upon such person, or any creditor, or to a trustee for the benefit of such wife, children, dependent relative or creditor, shall be held, together with the proceeds or avails of such contracts, subject to a change of beneficiary if desired, free and clear from all claims of the creditors of such insured person or annuitants; provided, that, subject to the statute of limitations, the amount of any premium upon said contracts, endowments or annuities paid in fraud of creditors, with interest thereon, shall inure to their benefit from the proceeds of the contracts, but the company issuing any such contract shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms, unless, before such payment, written notice is given to it by a creditor, specifying the amount of his claim and the premiums which he alleges have been so fraudulently paid. ”

Were it not for this section, the entire proceeds of the policy in question would be available to creditors, if the payment of the premiums which created this policy were paid in fraud of creditors. Lehman v Gunn, 124 Ala., 213, 27 So., 475, 82 Am. St. Rep., 159, 51 L. R. A., 112; Hoffman v. Weiland, 64 Ohio App., 467, 29 N. E. (2d), 33; Baxter v. Old National-City Bank, supra. But this section creates both an exemption and an exception to such exemption. It provides that the proceeds of the policy shall be exempt from the claims of creditors except to the extent of premiums paid in fraud of creditors, and that such premiums may be recovered where fraud has intervened. The statute therefore, in cases of fraud, in fact creates an exemption merely of the excess over the amount of such premiums.

It is obvious from a review of the authorities that there are two schools of thought applicable to such exemptions. The first exempts the entire proceeds of a policy, the premiums for which have been paid during a period of insolvency of the insured, if the amount of premiums so paid bears a reasonable relation to the financial condition of the insured. The other school of thought considers that, where premiums are paid on insurance during the insolvency of the insured, such payments, although made for the proper benefit of a wife, constitute constructive fraud of creditors, and the premiums, if paid out of the income or assets of the insured, may be recovered out of the proceeds of the policy upon death of the insured. The divergence of conclusion upon such premises will be found in 31 A. L. R., 51, in an annotation of the case of Ross v. Minnesota Mutual Life Ins. Co., 154 Minn., 186, 191 N. W., 428, 31 A. L. R., 46.

The so-called “reasonable” rule is illustrated in the Ross case and also in Doethlaff v. Penn Mutual Life Ins. Co., 117 F. (2d), 582.

The “constructive fraud” rule is found well stated in Bailey, Trustee, v. Wood, 202 Mass., 562, 89 N. E., 149, where a statute similar to our own is considered. Other Massachusetts cases follow the same conclusion. See York, Admr., v. Flaherty, 210 Mass., 35, 96 N. E., 53.

The same rule is considered as controlling in Houston v. Maddux, 179 Ill, 377, 53 N. E., 599; Lanning v. Parker, 84 N. J. Eq., 429, 94 A., 64; and Borg v. McCroskery, 120 N. J. Eq., 80, 184 A., 187.

Ohio many years ago took its place with those states which hold that fraud may be presumed, in case an insolvent'insured diverts his assets to the payment of premiums of insurance, in favor of at least creditors who were such at the time the premiums sought to be recovered were paid.

In Weber Loper & Co. v. Paxton, 48 Ohio St., 266, 26 N. E., 1051, at page 271, Judge Spear states:

“Do the facts bring the case within Section 3628 or within Section 3629, of the Revised Statutes? If within the latter section, is a case made which entitles the creditors to relief?

“We think the first question is answered by a reference to the face of the policy itself. Section 3628 applies where the insurance is effected by the person whose life is insured, for the benefit of his widow and children, or either. This policy, upon its face, appears to have been procured, not by the husband, but by the wife. The fact that the husband paid the premiums tends to indicate that the insurance was procured by him, but, standing alone, does not overcome the legal effect of the terms of the contract itself. There is an essential difference between a case where a husband contracts with an insurance company for insurance on his own life in consideration of premiums to be paid by himself, the loss to be payable to the wife, as in Cross v. Armstrong, 44 Ohio St., 613, and a case where the wife insures her interest in her husband’s life, the , premiums to be paid by her, as in Manhattan Life Ins. Co. v. Smith, same volume, 156. In the one case the policy is a chose in action which belongs to the husband, and which, beyond the limit fixed by Section 3628, he may not dispose of to the prejudice of creditors and those entitled to share in his personal estate on distribution. In the other, although the premiums may have been paid by the husband, the contract is the wife’s separate property, upon which the husband’s creditors have no claim, unless it appear that the payment of premiums by him has had the effect to withdraw funds to which the creditors were entitled. As to creditors whose claims existed when such payments were made fraud might be presumed; as to subsequent creditors it would be necessary to show that there was fraudulent intent. Washington Central Bank v. Hume, 128 U. S., 195.”

This court, in considering the application of Section 8618, General Code, to a gratuitous conveyance by a mother to a daughter, although finding no actual intent to defraud creditors, found constructive fraud in such conveyance. Squire, Supt. of Banks, v. Cramer, 64 Ohio App., 169, 28 N. E. (2d), 516. Section 8618, General Code, uses the words “intent to defraud creditors.” The cases cited in the opinion in the Cramer case, on pag;e 172, indicate that constructive fraiid may be shown to comply with the requirements of a statute using the words “intent to defraud.”

The facts in the instant case unquestionably justify a conclusion that the payments of the premiums by the. deceased in the presence of his insolvency amounted to a constructive fraud of his creditors and the premiums paid by the deceased out of his income, with interest, may be recovered by such creditors under and by virtue of the provisions of Section 9394, General Code.

Even recognizing the “reasonable rule,” the payment of almost 50 per cent of the income of the deceased for life insurance is an allocation of more than a reasonable portion of income for insurance of the wife of the deceased and others in the presence of insolvency.

It does not appear from the facts that a payment of some $4,000 per year for insurance can he justified as a reasonable provision for the wife of the insured and others under the circumstances in this case.

The creditors, therefore, are entitled to enforce their judgment claims against the premiums paid by the deceased insured, whether such payments were made out of funds acquired by deceased from ordinary income, loans, dividends or gift.

As to the payments of premiums made by the secretary, it is recited in the agreed statement of facts:

‘ ‘ 11. During the period beginning in 1930 and up to the time of his death, the said Mose E. Blahd in the course of his profession and business received and deposited many thousands of dollars in commercial accounts at various banks, upon which either he or the defendant, Mildred S. Benjamin, employed by him as nurse and secretary, might draw. Notwithstanding the varied and many transactions which passed through these accounts, at no time during this period did the said Mose E. Blahd have sufficient funds upon hand with which to meet his obligations, but he remained continuously insolvent during said period and had full knowledge of his insolvent condition.”

It is apparent from this statement that the secretary and the deceased did not maintain what is commonly known as a joint account, but rather that the secretary was merely given the right to draw on the funds of the deceased for convenience in paying the obligations of the deceased. Hence, such premiums so paid are amenable to the claims of creditors.

When payments of premiums were made by others than the deceased or his secretary directly to the insurer and did not become commingled with the fund of the deceased, such payments, including those made by the son of deceased, must be considered as gifts and not subject to the claims of the creditors.

One other question requires consideration. Section 9394, General Code, used the expression “subject to the statute of limitations.”

It is the claim of the defendants that these words refer to actions by the creditors to capture the fraudulently paid premiums and that the limitation runs from the time of payment of such premiums. In the first place, if such were the intention of the Legislature, appropriate language could have been used to obtain this construction.

The natural, fair and reasonable interpretation of the words, taking into consideration the frame of the section about them, is that the limitation referred to is that affecting the life of the claim of the creditor, the appropriate statute controlling, whether the debt be on open account, written contract, or judgment.

It is obvious from a reading of the statute — Section 9394, General Code — that the right contemplated, of recovery by creditors, is postponed until the maturity of the policy. The word “mature” is used in the statute and the subject matter of the statute is the “proceeds” of the policy. The fraud statute of limitations would therefore apply to the time elapsing after the maturity of the policy involved. The statute also provides that premiums fraudulently paid shall “inure” to the benefit of creditors. In addition to this if a creditor could forthwith attach a premium in the hands of the insurance company immediately upon its payment, the policy would automatically cease and be destroyed. Again, the insurer is discharged upon payment of the proceeds of the policy to the beneficiary (which would only occur after maturity thereof) unless notice is given of the creditor’s claim and the premium claimed to have been fraudulently paid.

In Lytle v. Baldinger, 84 Ohio St., 1, 95 N. E., 389, Ann. Cas., 1912B, 894, the Supreme Court indicated that the remedy of the creditor was under the provisions of Section 3628, Revised Statutes (now Section 9394, General Code).

The insertion of this reference to the statute of limitations in the section is manifestly proper, as otherwise there might have been some slight basis for the contention that this section extended the claims of creditors otherwise barred by the various statutes of limitations. The Legislature apparently desired to forestall such a claim, so that, if at the time of the maturity of the policy the creditor’s claim was barred by the statute of limitations, Section 9394, General Code, would give him no additional right.

In the instant case, the creditors being judgment creditors the debts were all within the statute of limitations applying thereto and were not barred at the time the policy in question matured. The instant action was also brought within the period of time after maturity, prescribed in the statute of limitations applicable to fraud.

The construction contended for by defendants would cause a hardship upon the insured, which it is apparent the Legislature, in passing Section 9394, General Code, intended to prevent. By the proper application of the statute, both the creditor and the beneficiary are proportionately protected. Any other construction would result in disadvantage to both.

One other contention of the defendants requires brief comment. It is claimed that, because the widow beneficiary, codebtor with the deceased, had elected to take advantage of the so-called “spendthrift” clause, the creditors can not reach the premiums paid in constructive fraud of their rights as such. This clause constituted an agreement between the insurer and the insured. It could be no more binding upon the creditors than the main provisions of the policy which provided that the proceeds thereof should be paid the beneficiary. The fact that these proceeds could be paid in installments can not affect the rights of creditors to the premiums.

The effect of the “spendthrift” clause in favor of defendants is sought to be sustained by the provisions of Section 9398-1, General Code. It is sufficient to say that by definite provisions of Section 9398-2, General Code, “the provisions of Section 9398-1 shall not impair or affect the rights of creditors under Section 9394 of the General Code.”

For these reasons, the creditors are entitled to recover to the extent hereinbefore indicated.

A decree may be entered by the Court of Appeals, the appropriate amounts being determined according to this opinion.

Decree accordingly.

Hildebrant and Matthews, JJ., concur.

Ross, P. J., Hildebrant and Matthews, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.