author: Geiger, J.

text:
    Kurtz, a Taxpayer, Appellee, v. City of Columbus et al., Appellants.
    (No. 3563
    Decided January 29, 1944.)

      Messrs. Burr, Porter, Stanley é Treffinger, Mr'. Garrett S. Claypool and Mr. James M. Butler, for appellee.

      Mr. John L. Davies, city solicitor, Mr. E. W. McCormick and Mr. Richard W. Gordon, for appellants.
   Geiger, J.

This matter is again before this court upon appeal from the judgment of the Court of Common Pleas affirming the report of the special master commissioner, John H. Summers, and granting final judgment against the defendant as the same appears in the entry of the Court of Common Pleas under date of February 6, 1943, from wbicb judgment a notice of appeal was given, and tbe case lodged in tbis court.

Tbe final entry from wbicb appeal is taken is of considerable length and we give only tbe portions thereof that are pertinent:

“That said report'of tbe special master commissioner and of bis findings of fact and conclusions of law therein stated be and tbe same hereby are severally ratified, approved, confirmed and adopted;

“That tbe motion of tbe defendants asking tbe court to dismiss tbe petition and enter final judgment in favor of defendants and against tbe plaintiff be, and tbe same hereby is overruled and disallowed;

‘ ‘ That tbe motion of tbe plaintiff asking tbe court to enter final judgment in favor of tbe plaintiffs and against tbe defendants and perpetually to enjoin tbe issuance and use in any way of any part of said municipal light plant bonds be and tbe same is hereby allowed; * * *

“It is ordered, considered, adjudged and decreed that final judgment as prayed for by tbe plaintiff be and tbe same hereby is entered in favor of tbe plaintiff and against tbe defendants; that tbe defendants’ motion for a new trial be overruled.”

Tbe case is no stranger in tbis court. It involves a taxpayer’s suit commenced in tbe Court of Common Pleas in 1938, by tbe original plaintiff against tbe city and certain of its officials, to enjoin the issuance by tbe city of $824,000 of general obligation Annat Act bonds, and tbe ácceptance by tbe city from tbe federal government of a grant of approximately $320,000, the proceeds of wbicb bonds and grant tbe city proposes to expend in tbe enlargement of tbe generating capacity of tbe city electric light plant, and for repairs and extensions.

Tbe defendants demurred to tbe original petition and upon tbe demurrer being sustained tbe plaintiff amended liis petition and again the defendants demurred and again the demurrer was sustained and the petition was further amended. After the third demurrer was sustained the plaintiff elected not to amend further, whereupon the court entered final judgment for the defendants. From that judgment the plaintiff appealed to the Court of Appeals, which court reversed the judgment of the- trial court, holding that the demurrer should have been overruled, and remanded the case for further proceedings.

From this remanding order the defendants appealed to the Supreme Court and that court affirmed the judgment of the Court of Appeals (Kurtz v. City of Columbus, 137 Ohio St., 184). The case was again referred to the Court of Common Pleas where the issues were made by the filing of a joint answer by the defendants. This answer, filed on December 12, 1940, makes certain admissions as to the matter contained in plaintiff’s petition, among them being that the city attorney has refused to file any suit or action of any kind, or to apply for any order of restraint or injunction or for any relief.

The answer further denies all other allegations of the plaintiff’s petition and avers that on September 22, 1933, the effective date of the Annat Act (115 Ohio Laws, pt. 2, 80), the assessed valuation of the city’s property for the year 1933 was $352,706,720, 5 per cent of which amounted to $17,635, 336; that on that date the net indebtedness of the city was $15,207,124; that the city had the power and authority to issue Annat Act bonds and to create an indebtedness within the 5 per cent limitation in the amount of $2,428,211; that the city of Columbus made four applications to the Tax Commission of Ohio for certification by the Tax Commission of the amount of the Annat Act bonds issuable on the respective dates; and that the total amount of these bonds included in the first three applications made to the Tax Commission amounted to $8,499,200, ■which bonds have been issued. .

It is averred that the fourth application made by the city of Columbus to the commission dated January 16, 1935, for municipal light Annat Act bonds now proposed to be issued amounted to $824,000, which, together with the Annat Act bonds already issued under the first, second and third applications, amounted to $8,499,200, making a total requested issue of $9,323,200.

It is further averred that the city of Columbus has not exceeded the total aggregate principal of bonds authorized by law in the sum of $9,324,161.91, and does not now exceed the statutory limits of the Annat Act, but in fact the city of Columbus now has the power and authority to issue Annat Act bonds and create thereby an indebtedness outside of the 5 per cent limitation in the amount of $824,961.91.

The defendants pray that the restraining order be dissolved and that the petition of the plaintiff, as twice amended, be dismissed.

To this answer the plaintiff replies, making certain admissions and denying others. The issues thus made were by agreement of the parties referred to Hon. John H. Summers, appointed as a special master commissioner to hear the evidence and report to the court his findings of fact and conclusions of law.

In pursuance of this authority the commissioner heard the evidence presented by the parties as embodied by him in a bill of exceptions. A large portion of this bill was made up of the agreement of counsel as to the submission of certain exhibits and of the statement of counsel concerning such tendered exhibits. Much of the bill might have been eliminated if counsel’s statements were left to their several briefs rather than being incorporated in the report of the commissioner. The commissioner filed a report covering 81 pages in which he concludes:

“It follows that if the city in 1936 exceeded its bond-issuing power under the Annat Act, the authority to issue these municipal light bonds by virtue of the allegation of the proceedings thereunder became null and void. ”

It having been found that by June 11, 1936, $8,499-200 of the bonds authorized by the voters had been issued, “it follows that the city’s bond-issuing power under the Annat Act as superimposed upon the uniform bond act has been exceeded and the city does not now have the power to issue the $824,000 or any part thereof contemplated, for the purpose of the extension of the municipal light plant.”

The commissioner concludes:

“In consideration of the foregoing findings of fact and the conclusions of law I find and conclude that the final judgment should be entered herein in favor of the plaintiff and against the defendant and that the issuance of said municipal light bonds should be permanently enjoined as asked by the plaintiff.”

The commissioner’s report is a masterly presentation of the issues and an analysis of the evidence. It is not always easy to follow his reasoning, but when it is carefully studied we arrive at the conclusion that his findings of facts and conclusions of law were justified by the evidence. We are impressed with the fact that the commissioner was probably over-generous in permitting evidence upon certain points; as an example, permitting the defendants to introduce a large amount of evidence contradicting the certificate made by the state Tax Commission. This commission made four reports to the officials of the city,.the same being in response to applications made by the city for the commission’s certificate. These several reports are dated November 14,1933, March 30,1934, September 18,1934, and January 17,1935, and in each the commission finds that “the net indebtedness reduced by bonds maturing from the effective date of the act is in the amount stated in the several certificates, being $6,895,950, and that as authorized by Senate Bill No. 28 the city is authorized to issue bonds in that amount.” In the last certificate of January 17th the commission states: “After due examination of the financial and bond statements certified to this commission by the fiscal officer of the city of Columbus, it finds and does hereby certify that the city of Columbus is unable to issue bonds subject to the limitation prescribed by Sections 2293-lé and 2293-18, General Code.” It is stated that the certificate is issued in compliance with paragraph 1, Section 1 of amended Senate Bill No. 403 (115 Ohio Laws, 601).

To the last certificate this statement is attached:

“This certificate is fourth approval and is granted to .cover the following projects, constructing an extension to the present building at the municipal light plant, * * * $824,000. ’ ’ The finding of the commission by the statute is final and the commissioner might well have relied upon it and refused to hear testimony by the city seeking to dispute the validity of the certificate. However, we may say that after the commissioner permitted the evidence to be introduced, his finding of fact that the city had no authority to issue the municipal light bonds was entirely justified by the evidence adduced. The conclusion of the Tax Commission was sustained by re-examination of the facts.

A rather long assignment of errors is asserted, the more important being, in substance, that the court erred:

(1) In sustaining, approving, adopting and confirming the findings of fact and conclusions of law of the special master commissioner in entirety.

(2) In overruling the defendants’ motion excepting to certain findings of fact and conclusions of law and requesting the court to reject the same, and dissolve the restraining order and enter judgment for defendants.'

(3) Substantially the same as (2).

(4) The court erred in entering final judgment in favor of plaintiff and against defendants, permanently enjoining the issuance of municipal light bonds in accordance with the conclusion of the commissioner.

(5) , (6) Substantially the same as (4).

(7) The court erred in finding as a matter of -law that the termination of the powers conferred by the original Annat Act, effective July 18, 1933, is a bar to the issuance of the municipal light bonds.

(8) In finding that the parties are bound by the findings and certification of the Tax Commission in respect to the bond issuing capacity of the city of Columbus under the Annat Act, and that said certification of the Tax Commission is final as to matters so found, and that no testimony of the city’s net debt and tax duplicate is relevant.

(9) In finding that the maximum amount of issuable Annat Act bonds was $6,895,950 as found by the Tax Commission in its certification, and that the municipal light bonds may not legally be issued.

(10) In its computation of and determination of the value of the property of the city and the amount of tax duplicate thereof as listed for taxation on September 22, 1933.

(11) In its computation of and determination of the amount of net indebtedness of the city on September 22, 1933.

(12) In its construction of Section 2293-235, General Code, and the effect of said section upon the proposed issue of the light plant bonds, namely, that if the city exceeded its bond issuing power under the Annat Act, the authority to issue municipal light bonds by virtue of the 1933 election, and the proceeds thereof became null and void.

(13) In finding that the city’s bond issuing power under the Annat Act as superimposed upon the uniform bond act has been exhausted and that the city does not now have the power to issue bonds in the amount of $824,000, or any part thereof contemplated for the expansion of the municipal light plant.

(14) Other prejudicial errors.

We have refrained from setting out the pleadings in this case for the reason that they appear twice in published reports. The case was heard and decided in our court as appears in 61 Ohio App., 423, 22 N. E. (2d), 747, and in a somewhat deleted opinion in 29 Ohio Law Abs., 172. The issues then involved in the matter were presented on the examination of the alleged error of the court below in sustaining the general demurrer to plaintiff’s petition. This court reversed the court below and overruled the demurrer. One member of this court dissented from that judgment and a second member “concurred in the judgment,” thereby indicating his lack of agreement in the reasoning of the opinion. The defendants appealed from the decision of this court to the.Supreme Court. The opinion of that court .appears in Kurtz v. City of Columbus, 137 Ohio St., 184, 28 N. E. (2d), 587. The Supreme Court gave generous space to its opinion in which is set out at length the issues made by the .demurrer to the petition. The Supreme Court affirmed the opinion of this court on every point at issue specifically deciding the two most controversial questions. On page 188 the section is quoted relating to a certificate to the Tax Commission and what the same shall state, and it is pointed out that “said certificate as to the matters required by this act shall be final. ’ ’

• The court considered and definitely passed upon the ■effect of the statute which provides that if before the bonds authorized by an election shall be issued, the bonded indebtedness of the municipality shall exceed that allowed by law, that none of such bonds may be issued and the authority to issue the same by virtue of such election shall become void. The court held that Section 2293-23b, General Code, which seeks to remove from the limitation certain prescribed bonds, is prospective in its form and terms, and that the application of its provisions sought by counsel for defendant would be an unconstitutional application of its provisions.

The case being before the Supreme Court on a demurrer to the petition, the court passed upon the question as presented on demurrer which admitted as true all pertinent allegations of the petition.

We find that after the case was returned to this court the defendant filed an answer, to which we have alluded, but we further find that upon the report of the commissioner the case now stands before us as if it were being heard on demurrer, in that the defendant has failed to overcome the evidence presented by the plaintiff as to the limitation of the amount of bonds to be issued.

The opinions of this court as reported and the opinion of the Supreme Court so clearly set up and determine the issues in this matter, that we feel it would be unnecessary to examine these opinions in detail, but refer those who desire further examination of the questions to these two cases.

We are of the opinion that there was no error in the court below affirming the finding of the commissioner on findings of fact and conclusions of law, and that all the assignments of errors should be overruled.

Judgment accordingly.

Barnes, P. J., and Hornbeck, J., concur.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Bending, Appellant, v. The Metropolitan Life Ins. Co., Appellee.
    (No. 1940
    Decided January 19, 1944.)

      Mr. Paul V. House, for appellant.

      Messrs. Fitzgibbon S Fitzgibbon, for appellee.
   Putnam, J.

This is an appeal on questions of law from a judgment of the trial court in favor of the defendant. The plaintiff, Amanda Bending, was the beneficiary under an accident insurance policy issued in 1931 to her son, Robert L. Bending, now deceased, in the sum of $1,000, on which the premiums had been fully paid at the time of the insured’s death. In September 1942, Robert L. Bending was inducted into the military service of the United States and in June 1943, while stationed at Port Bliss, Texas, he obtained a two-day leave of absence and while at a hotel in El Paso was accidentally killed by falling out of a window. Defendant declined liability because, among other reasons, of a military exemption clause in the insurance contract. A trial was had to the court, a jury being waived, upon the pleadings, agreed statement of facts and the evidence, the defendant not agreeing that the death of insured was accidental.

The trial court in a special finding of facts, found that (a) Decedent, Robert L. Bending, died by reason of bodily injuries sustained through external, violent and accidental means; (b) the insurance policy was in full force and effect at the time of the death of decedent; and (.c) the decedent at the time of his injuries and death was in the military service of the United States.

Prom the above facts the court found as a matter of law that the terms of the policy bar the plaintiff from any recovery if the decedent, at the time of the injuries causing his death, was in the military service in time of war, and rendered a judgment for the defendant.

The sole question before this court is the meaning and validity of the military exemption clauses in the accident policy, and whether the court erred in its conclusions of law.

The policy in question was issued as a supplemental contract to a standard life policy for $1,000, which was issued at the same time, which contained no military clause and the proceeds of which were paid by defendant to the plaintiff.

The military clauses in the supplemental contract aré as follows:

The company “hereby agrees to pay * * * provided # # * that death shall not have resulted from bodily injuries sustained while participating in aviation X: * * nor sustained while the insured is in the military or naval service in time of war.

“The insurance under this supplementary contract shall be suspended * * * while the insured is in the military or naval service in time of war; in which event that portion of the additional premium received by the company but unearned during the period of such suspense shall be refunded.”

The plaintiff maintains that, by applying well settled rules of construction of insurance policies, the military clauses in this policy make it mandatory to construe these clauses as meaning "activities” and not "status” as the basis of exemption; and that if these clauses do, under proper rules of construction, attempt to make status and not activities the basis of exemption of liability, they are null and void as against public policy.

The defendant maintains that these clauses are plain, unambiguous, need no construing and make status of the insured the basis of exemption; and that in so doing they are valid provisions and not void as against public policy.

The question is timely and important and the decisions on some phases of the case are in apparent conflict. Counsel have been diligent in their briefs and argument and have lucidly presented the principles involved. There is only one decision in Ohio, but during the period, 1919-1925, after World War I, the highest tribunals of other states considered similar military clauses, construing the various language used therein and passing on their validity. Consequently, the language in present, policies is somewhat different, made so no doubt to meet the interpretations formerly made. Perhaps one of the best annotations of the case law on the subject is to be found in 137 A. L. R. at page 1263 et seq. A perusal of the cases shows the following situation.

The apparent conflict is due in a great measure to the difference in phraseology of the exemption clauses, but the courts in many of these cases, adhering to the well settled rule that in construing an insurance contract which by reason of ambiguities is capable of two reasonable interpretations, that interpretation will be adopted which is most favorable to the insured, have gone to some length in taking a particular word or phrase in the military clause, construing the same as ambiguous, then resolving that ambiguity as meaning activity of a military nature and not status, and holding the insurer liable.

One of those words is “engaged” and it occurs in clauses of which the following is typical:

“If within five years from date hereof, the death of the insured shall occur while engaged in the military or naval service, in time of war, without previously having obtained from the company a permit therefor, the company’s liability shall be limited * * Boatwright v. American Life Ins. Co., 191 Iowa, 253, 180 N. W., 321, 11 A. L. R., 1085.

The court in that case reasons that the word “engaged” connotes “resulting from” or “in consequence of” etc. Consequently the clause was not intended to exempt the company from liability by reason of the soldier’s mere status of being in the military service, but the exemption only applied where death occurred from activities of a purely military nature which were not common to soldiers and civilians alike. In that case the insured died in camp of influenza. To the same effect are the cases of Benham v. American Central Life Ins. Co. (1919), 140 Ark., 612, 217 S. W., 462; Long v. St. Joseph Life Ins. Co. (Mo. App., 1920), 225 S. W., 106; Rex Health & Accident Ins. Co. v. Pettiford (1920), 74 Ind. App., 507, 129 N. E., 248; Myli v. American Life Ins. Co. of Des Moines, 43 N. D., 495, 175 N. W., 631, 11 A. L. R., 1097; Kelly, Admx., v. Fidelity Mutual Life Ins. Co. of Philadelphia, 169 Wis., 274, 172 N. W., 152; Barnett v. Merchants’ Life Ins. Co., 87 Okla., 42, 208 P., 271.

The use of the word “risk” in those clauses has also been used as the basis of the construction of the clause as involving “activities” and not “status.” The case of Atkinson, Admr., v. Indiana National Life Ins. Co., 194 Ind., 563, 143 N. E., 629, is illustrative of this type of construction. The policy there provided:

“After one year from the date of issue this policy shall become incontestable if the premiums have been duly paid, except in case of self-destruction within two years, whether sane or insane, and except that military or naval service in time of war without a permit from the company, is a risk not assumed under this policy at any time.”

Due to the use of the word “risk’.’ that clause was held to be ambiguous in that it might mean either activities or status and was therefore resolved against the insurer which was held liable for the death of the insured in a motorcycle accident while on leave of absence from duty. Other similar cases are Reid v. American National Assurance Co., 204 Mo. App., 643, 218 S. W., 957; Olson v. Grand Lodge A. O. U. W. of North Dakota, 48 N. D., 285, 184 N. W., 7; Ruddock v. Detroit Life Ins. Co., 209 Mich., 638, 177 N. W., 242.

Other cases put emphasis on the phrases “resulting from,” “in consequence of,” and “active service” in arriving at a similar construction. However, in the case of Bradshaw, Admr., v. Farmer & Bankers Life Ins. Co., 107 Kan., 681, 193 P., 332, where the word “engaged” was used, the court held that even so “status” was meant and not “activities.” In the case of Miller v. Illinois Bankers’ Life Assn., 138 Ark., 442, 212 S. W., 310, where the word “risk” was' used the insurer was held not liable.

The great weight of authority is that if the language of the military exemption clause is ambiguous, the ambiguity will be construed against the insurer and the clause will be held to denote military activity and not status.

Just as well settled, however, is the complimentary rule that the court has the duty to enforce insurance contracts as made by the parties and not to rewrite or to distort, under the guise of judicial construction, contracts the terms of which are unambiguous, so long as they do not offend some rule of law or contravene public policy. 29 American Jurisprudence, 172, Section 157.

With this in mind let us re-examine the military exemption clause in the policy in this case. It is:

“Provided that death shall not have resulted from bodily injuries sustained while the insured is in the military service in time of war.

‘ ‘ The insurance under this policy shall be suspended while the insured is in the military or naval service in time of war.”

This language is clear and unambiguous. There are no words like “engaged,” “risk,” “active service,” or “in consequence of.” There is nothing to construe. The language plainly makes status of the insured in military or naval service the ground of exemption from liability. If such a clause is not void as against public policy, clearly the defendant is not liable. Is it against public policy?

The court in many of the cases above referred to while holding that the particular clause under consideration was ambiguous and therefore to be construed against the insured, specifically recognized the proposition that a clause might be written making status the ground for exemption and it would be valid. In the Myli case, supra, the court said:

“From the foregoing provisions it is apparent that the insurance company did not stipulate for nonliability, under either the double indemnity or disability clauses of the policy, for injuries to the insured or for accidental death while his status was that of an enlisted man. * * *

“In the first place, if status were to be made the test, language should have been employed to make it apparent that it was to be the test. For instance, it might well have been stated: ‘If within five years from date the insured shall enlist or become inducted into the military or naval service without having obtained a permit therefor,’ etc., then status would clearly have been the test.”

Similar pronouncements were made by the court in the case of Malone v. State Life Ins. Co., 202 Mo. App., 499, 213 S. W., 877; Kelly, Admx., v. Fidelity Mutual Life Ins. Co,, supra, and other cases.

The question of those clauses being void as against public policy has been raised and answered in the negative in the cases of Miller v. Illinois Bankers’ Life Assn., supra; Bradshaw, Admr., v. Farmers & Bankers Life Ins. Co., supra; Marks v. Supreme Tribe of Ben Hur, 191 Ky., 385, 230 S. W., 540.

In the Marks case the court said:

“An insurance company or benefit society has the right to select the particular risks it is willing to assume and there is no public policy against a contract of this sort exempting the insurance company in advance from liability for the death of insured while in the military or naval service of the government,”

Pronouncements of the other cases cited ar'e to the same effect.

The only authority or expression to the contrary which counsel have cited or this court has been able to find is the case of Frush v. Ohio State Life Ins. Co. (1920), 22 N. P. (N. S.), 428, 31 O. D., 49, and the dissenting opinion of Judge Grace in the case of Olson v. Grand Lodge A. O. U. W. of North Dakota, supra. Also, the case of Illinois Bankers’ Life Assn., v. Davancy, 102 Okla., 302, 226 P., 101, while the court therein does not say so, might have been decided on that ground.

Tlie plaintiff relies, also, upon the following statement in 1 Appleman on Insurance, 692, Section 561:

“The last result is, however, out of line with the reasoning employed by the great majority of courts. It is the overwhelming weight of authority that to relieve the insurer of liability it is necessary that it be clearly shown that the death or injury arose directly from a peculiarly military hazard and was a consequence of such military service.”

The construction placed on that pronouncement by the plaintiff we do not believe is warranted for two reasons. First, it must be read in connection with previous statements. “The last result” refers to a case where the insured committed suicide while insane in the military service. Secondly, all of the authorities cited by the writer supporting the statement are the same or of the same type as those hereinbefore analyzed in which the terms “engage,” “risk,” “resulting from” and “in consequence of” were used.

The Frush case was decided in 1920 and arose in this county. It was affirmed by this court and a motion to certify to the Supreme Court was overruled. It is unfortunate that the opinion of this court affirming the same is not available, and the reasoning of the court is not known. In that case the insured died of the Spanish flu while in the military service at Camp Sherman, Ohio, in time of war. The policy in that case had the following military clause:

“This policy shall be null and void, except for the amount of premium paid, if the insured shall die within one. year by self destruction, whether sane or insane; or if the insured shall at any time engage in military or naval service in time of war (the militia not in actual service excepted) unless a special written permit therefor has been obtained from the company.”

Under that clause the insurer was held liable.

It is to be noted that the term “engage” is used in the clause and therefore it comes squarely within the class of cases hereinbefore analyzed employing (his term. The court cited none of them, but did cite the case of Welts v. Connecticut Mutual Life Ins. Co., 48 N. Y., 34, 8 Am. Rep., 518, a case arising out of the Civil War.

Under a great majority of the decisions as above shown- the court would have been amply justified in arriving at the conclusion it did by a parity of reasoning. That it did so is shown by the following language of the opinion:

“The provision of the policy is ‘if the insured was at any time engaged in military or naval service in time of war’ the policy should be void.

“In order to come within the meaning of that clause it seems to me that such engagement in military service should be the cause or occasion of the death of the insured in order for the company to escape liability. If the death of the insured was caused by something outside of his military service, and which might have occurred in the same way if he had not been in military service, then the service he was engaged in was not the occasion of his death.

“Engagement in military service means to expose to dangers which were not incident to civil life.”

However, the court went further and stated:

“Therefore, it is my opinion that the provision in the policy, so far as it makes such policy void upon entering into military or naval service, would tend to hinder and deter volunteer service and would be against public policy.”

That pronouncement is an additional reason for upholding liability.

Another point to be noted in connection with that case is that the policy provided for a forfeiture in case of engagement in military service while in the instant ease the policy never did apply while the insured was in the military service and was only suspended during that time. Consequently, the rule as to forfeitures 'does not apply. The court in the Frush case was amply justified in reaching the conclusion it did and as before indicated we do not know upon what ground it was affirmed. Insofar as the case holds that the making of mere status the ground of exemption of liability renders.it void as against public policy, we disapprove of the same. The great weight of reason and authority is to the contrary.

It is argued that one is not in the military service while on leave of absence. This position is untenable. One is in the military service from the time he takes the oath until he receives his discharge, honorable or otherwise, and the courts have uniformly so held. See the Boatwright, Ruddock, Malone and Reid cases, supra.

For the above reasons we think the court below did not err and the judgment must be and is affirmed.

Judgmcnt affirmed.

Montgomery, P. J., and Sherigk, J., concur.


author: Stevens, P. J.

text:
    Taylor, Appellee, v. Taylor, Appellant.
    (No. 3588
    Decided September 20, 1943.)

      Messrs. Smoyer, Kennedy, Smoyer & Vogel, for appellee.

      Messrs. Amer, Cunningham & Keeney, for appellant.
   Stevens, P. J.

This- appeal on questions of law from an order of the Court of Common Pleas, granting alimony to plaintiff pendente lite for her support and the support of the minor child of the parties, and requiring defendant to vacate the residence of the parties, owned in part by defendant, was presented to this court on the record, but without a bill of exceptions.

We have inquired into the question as to whether the order made herein was a final order, reviewable on law by this court, and have concluded that it was and is such an order, affecting a substantial right, made in a special proceeding, as comes within the definition of a final order contained in Section 12223-2, General Code, notwithstanding the provisions of Section 12002, General Code, which were rendered inoperative by the constitutional amendment of 1912 fixing the jurisdiction of this court, and the adoption of the Appellate Procedure Act (Section 12223-1 et seq., General Code).

We are, however, required to indulge the presumption that the order of the trial court is a valid order, made upon proper evidentiary showing, until the contrary is shown.

There being no bill of exceptions or other showing that the trial court did not have before it such applications, and such evidence or statements of counsel as warranted the order made, indulgence of said presumption requires an affirmance of the order made by the trial court.

Order affirmed.

Washburn and Doyle, JJ., concur.


author: Lloyd, J.

text:
    The State of Ohio, Appellee, v. Hainbuch, Appellant.
    (No. 3970
    Decided June 1, 1943.)

      Mr. Martin S. Dodd, director of law, and Mr. John J. McCarthy, for appellee.

      Mr. J. W. Starritt, for appellant.
   Lloyd, J.

Hainbuch was tried and found guilty in the Municipal Court of Toledo on a charge of operating, on November 2, 1942, an automobile on Sherman street in Toledo, while under the influence of intoxicating liquor.

From the judgment of sentence imposed, he appealed to the Court of Common Pleas. From the affirmance by that court of the judgment, he now appeals to this court on questions of law.

The complaining witness, Marion Duhart, had been in Detroit. A cousin accompanied him. Upon their return to Toledo they first stopped at “Stanley’s” on Indiana avenue located in a quite distant and opposite part of the city from Stickney avenue where the cousin lived. There Duhart “picked up” two boys and while on his way to take his cousin home collided in the 900 block of Sherman street with an automobile operated-by Hainbuch.

Duhart testified that after the collision Hainbuch got out of his car and “laid up side of the car, leaning one side up against the car * * * the crowd came around and he gets back into the car and attempted to pull away. I took the keys out of the transmission,” and gave them to the police “after they came.” He said he was not close enough to Hainbuch to detect an odor of liquor.

A police officer who arrived at the scene of the collision about 1:25 or 1:30 a. m. on Monday said he inquired of Hainbuch whether he had been drinking and that Hainbuch replied “that he had a lot of beer, and then, he had but four or five beers. I noticed his clothes were mussed and he staggered when he went around from the front of the car to the rear. * * * There was an odor of alcohol. * * * His speech was slurred and he talked in a moaning tone of voice. I inquired as to when he was drinking. Just had three beers to drink, that was about the only conversation I had with him.” His opinion that Hainbuch was under the influence of liquor was based on the fact that he was staggering, his speech and his general appearance.

The other police officer testified “that Hainbuch staggered and leaned against the car for support” and that he “spoke with difficulty, had difficulty in getting words out of his throat * * * I smelled liquor on his breath.” He said Hainbuch “admitted having four or five beers” and in his opinion was under the influence of liquor.

None of the occupants of the Duhart automobile except himself, testified.

The foregoing summarizes the evidence produced in behalf of the state insofar as it relates to the alleged offense for which Hainbueh was being tried.

A police officer testified that Hainbueh, whom he had known for ten years, is a “machinist by trade, works every day, is single and lives on Bancroft street”; that “one time in a restaurant he got up on a chair, happened to be one morning he was going to work, and he fell down. I said 'That guy ain’t drunk, just his bad legs.’ I think they call him trench feet”; that he staggers when he walks and is called ‘ ‘ rubber legs”;' that it started from exposure in the World War; and that Hainbueh had been thus afflicted for the ten years he had known him.

Another witness testified that he had known Hainbueh four or five years; that Hainbueh had bad feet, and the way he walked you would think he was drunk if you did not know his condition. This witness, a Mr. Stattier, with his wife, were at the “Ace of Clubs” on Cherry street on the Sunday night preceding the collision, where they saw Hainbueh. They left there, between 11:30 and 12:00, and got home shortly after 12:00. Hainbueh drove them to their home, 812 .Erie street, in his coupe. Stattier said Hainbueh “had a bottle of beer with us,” but it was 3.2 beer, all you can get on Sunday; that he never saw Frank drunk, and that he was not intoxicated when he drove them home.

Mrs. Stattier testified that she had known Hainbueh “quite a while”; that “he has very bad feet and legs” and “kind of wobbles when he walks” and is nicknamed “rubber legs.” “He had one bottle of beer with us,” 3.2 beer; that after they waited about 45 minutes for a cab, he offered to take them home; that there was nothing unusual in his appearance or in the way he drove his car; and that he was not intoxicated.

The manager of the “Ace of Clubs” testified that “Frank had tw7o or three glasses of 3.2 beer * * * not over three or four glasses of beer at the most” and left before midnight; that he had never seen him under the influence of intoxicating liquor; that he was not intoxicated; that “they nicknamed him rubber legs”; and that “I have seen him when he fell on the floor.”

A bartender at the cafe testified that he had known him for about three years; that he was not intoxicated when he left the cafe; and that his nickname was “rubber legs.” He said: “I seen him fall, I thought that was on account of his limbs, but in the morning or evening he had to hold onto something to walk.”

Hainbuch testified as to taking Mr. and Mrs. Stattler home and that he had drunk nothing except 3.2 beer. He said: “I didn’t drink very many. I don’t like 3.2 beer. Maybe four or five bottles * * #. When I get four bottles, I blow up like a balloon.”

As to the condition of his legs, Hainbuch testified that “It was from the effects of sleeping out in the rainy, nasty weather in France” and that lie lias suffered from exposure ever since. He said that after the collision “I could not do much of anything. They seemed like a wild bunch. There was a bunch of three boys, had me scared to death, one approached me and took my keys away. * * * They were running around and wouldn’t let me out of the car until the officers came. I wasn’t intoxicated and didn’t stop any place after taking the Stattlers home.”

At the time of the collision Hainbuch was on his way to his home, “14th and Bancroft.” His story of the cause of the collision is in conflict with that of Duhart.

The foregoing is the evidence produced in behalf of the 'defendant. The state offered no evidence in rebuttal thereof.'

The burden of proof required the state to prove the guilt of the defendant beyond a reasonable doubt. Testimony that the breath of the accused smelled of liquor is not alone sufficient proof that he was intoxicated. Mormile v. Cleveland; Klan v. State; and Phelan v. Cleveland, unofficially reported in 8 Ohio Law Abs., at pages 229, 365 and 367, respectively. See, also, Critzer v. Donovan, 289 Pa. St., 381, 385, 137 A., 665.

The defendant, appellant, asks that the judgment “be reversed for the reason that the conviction is manifestly against the weight of the evidence.” If there is any basis for the judgment it unquestionably is manifestly against the weight of the evidence. The judgment is reversed and the cause is remanded to the Municipal Court of Toledo for further proceedings according to law.

Judgment reversed and cause remanded.

Carpenter and Stuart, JJ., concur.


author: By the Court.

text:
    Whitaker, Appellee, v. French-Bauer, Inc., Appellant.
    (No. 6349
    Decided November 22, 1943.)

      Mr. Stanley L. Kennedy, for appellee.

      Mr. Robert L. Blade, Mr. Robert Fosdick and Mr. Robert F. Badgley, for appellant.
   By the Court.

This is an appeal on questions of law from the Court of Common Pleas o'f Hamilton county, Ohio.

In this case the defendant admitted liability through the opening statement of its counsel. It sought, however, to introduce evidence tending to show that the amount of damages claimed by the plaintiff could not have been incurred, for the reason that the impact of the two vehicles involved was slight and trivial. The court excluded such evidence and refused counsel the right to then make a proffert. In so doing, the court committed error, prejudicial to defendant. The court also in questioning the plaintiff framed certain questions in a manner which could not be otherwise than prejudicial to the rights of the defendant.

For the reasons given, the judgment of the Court of Common Pleas is reversed and the case remanded to that court for a new trial.

Judgment reversed.

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


author: Skeel, J.

text:
    Corbin, Appellant, v. City of Cleveland, Appellee.
    (No. 19269
    Decided October 25, 1943.)

      Mr. B. G. Spencer, for appellant.

      Mr. Thomas A. Burke, Jr., director of law, and Mr. Kent Meyers, for appellee.
   Skeel, J.

This case comes to this court by appeal on questions of law from the Court of Common Pleas. The plaintiff in her petition alleges that on the 11th day of May, 1940, at about three p. m. she had come out of The William Taylor Company store onto Euclid avenue. She was proceeding west. The street was very crowded. She had walked only a short distance when she claims to have stepped into a hole in the sidewalk, which caused her to fall and sustain certain injuries.

After the jury had been impanelled and sworn, the court gave each juror an envelope which contained a few sheets of blank paper. The court explained to the jurors that he was going to permit them to take notes, if they so desired, during the progress of the trial. The court directed the jurors to seal whatever notes they made in the envelope, write their names over the seal and leave the envelope in the custody of the court upon adjournment, the notes to be returned to the jurors when the court should re-convene. The jury was further instructed that when they returned their verdict, the notes were to be collected by the court and destroyed in the presence of the jurors.

■ The trial resulted in a verdict for the defendant.

The plaintiff claims: (1) That the court erred in suggesting to the jurors that they could take notes during the progress of the trial, if they wanted to do so, and in furnishing the material for that.purpose; (2) that the verdict is contrary to law and against the weight of the evidence; (3) that the court erred in the admission of evidence; (4) that the court erred in giving certain special instructions to the jury before argument at defendant’s request; (5) that the court erred in its general charge to the jury; and (6) that the court erred in overruling the appellant’s motion for new trial.

The court’s conduct in furnishing to the jurors materials for the taking of notes and suggesting to the jurors that they are permitted to take notes of the evidence, if they should so desire, to assist them when deliberating upon their verdict and prescribing the rules which they should follow if they did take notes of the evidence, presents a rather unique question. What case law there is upon the subject deals with the question of where a juror, without the suggestion of the court and in most instances without the court knowing about it, takes notes of the evidence during the conduct of the trial.

In 39 Ohio Jurisprudence, 1062, Section 337, there is an attempt to state the rule as laid down by the cases, as follows:

“In Ohio it seems to be proper or at least permissible for jurors to take notes during the court’s charge or during the testimony and take these notes to the jury room, although some courts, in the absence of statute, seem to regard it misconduct for a juror to presume to do this.”

The latter part of this quotation is based on a statement of the rule in 2 Thompson on Trials (2 Ed.), 1868, Section 2585:

“If a judge or referee were to try a cause without notes of the testimony, he would justly be regarded as derelict in the discharge of his duties; but, in the absence of statutes allowing jurors to take notes of the testimony, which, as hereafter seen, exist in some jurisdictions, for a juror to presume to do this is regarded by some courts as misconduct for which a new trial ought to be granted. The conception which supports this view is, that the jurors must ‘register the evidence on the tablets of their memory,’ provided they are able to do so; and it is to be observed that, in the jurisdiction where the rule is laid down, it is also a rule that the jurors -are not to take the written evidence with them. But, in order to make the fact available as ground for a new trial that a juror took notes of the evidence and read them in the jury-room, no objection having been made in court, it must appear that, not only the defendant, but also his counsel, was not aware that the juror took the notes; and, in the absence of a showing to the contrary, it will be presimied that they knew it and consented to it. Nor is the act of a juror in taking notes of the evidence, as it is given, misconduct sufficient to set aside the verdict, where he,.upon being admonished by the court of the impropriety of his act, ceases taking his notes.”

See, also, Long v. State, 95 Ind., 481; Cheek v. State, 35 Ind., 492-495; Cowles v. Hayes, 71 N. C., 230, at page 231; Burton v. Wilkes, 66 N. C., 604; Tift v. Towns, Exrx., 63 Ga., 237; Lilly, Admr., v. Griffin, 71 Ga., 535.

The courts of Ohio have not passed directly on the question as presented in the instant case, where the court took the initiative in suggesting that the jurors could take notes of the testimony, even going to the extent of furnishing the necessary material to carry out the suggestion. But, as indicated by the citation in Ohio Jurisprudence, the courts have had presented to them the question as to whether it is misconduct, sufficient to require the reversal of a case, where a juror has taken notes during the course of the trial. The rule to be found from the decisions is that occasional note-taking by the jurors is not, under ordinary circumstances, such misconduct as would justify a reversal of the cause.

In the case of W. H. Davis Die Co. v. Beltzhoover Electric Co., 40 Ohio App., 308, 178 N. E., 418, where the court, during the course of the charge, asked: “Has any one of the jury a pencil?” The record did not disclose whether the jurors had pencils, and if so, whether notes were taken, but it was claimed by counsel that notes were taken of the charge and that such notes were taken by the jurors to the jury room. On page 311 of the opinion, after quoting a part of the paragraph in Thompson on Trials, supra, the court said:

“It is urged that the notes might be taken incorrectly and thus improperly influence the jurors in their deliberations. Certainly there would be as great danger of error upon the 'tablets of their memory’ as upon the tablets in their hands. In the days when fewer men could read or write it might have been possible for .one who could do so to use these abilities improperly. Today it is hardly likely that such a state of affairs would exist. While the stability of rule and precedent is desirable, it is not so important as to require inflexibility in the presence of changed conditions, indicating the necessity, or at least reason, for adaptation to modern conveniences and practices adopted by men in the conduct of the ordinary affairs of life.

“We find no prejudicial error in the remark of the court, even if followed by appropriate action stated by the plaintiff in error. ’ ’

In the case of B. H. Palmer & Son v. Cowie, 7 C. C. (N. S.), 46, at page 53, 17 C. D., 617, the court noticed, during the course of the trial, that a juror was taking notes of the testimony, whereupon the court said:

“I notice, gentlemen of the jury, that some of you have been taking notes of the testimony. The theory of the law is, that unless you all take notes of the testimony none of you should, so that some of the testimony will not be unduly emphasized in the jury room, and I will ask you to discontinue that. ’ ’

The record further discloses that one of the lawyers in the case filed an affidavit in which he stated that during the trial he observed a juror taking notes. There is nothing in the record of the case, however, to indicate whether the instructions of the court not to take notes were thereafter observed or whether the notes which were taken were destroyed or taken to the jury room upon submission of the case. The court, in concluding that such conduct was not misconduct sufficient to warrant the trial court to grant a new trial, said:

“Judge Adams, in the 20th Circuit Court Reports, page 512 [11 C. D., 321], in the case of The C., C., C. & St. L. Ry. Co. v. Ullom, Admx. — what he said appears on page 522 of the report — expresses grave doubt as to whether a juror is guilty of misconduct by taking-notes. Speaking for myself alone, I entertain no grave doubt about it. Unless a juror is cautioned not to take notes I know of no rule, nor can I think, of any principle, that would make it misconduct on the part of a juror to take notes, any more than on the part of a judge before whom a trial upon facts is being heard, and especially where there are several judges.

“It is true that a juror might, by taking notes, have more information about the case in the jury room than a juror who did not take notes. It is equally true that there is a great difference in the intelligence of jurors. It is true that there is a difference in the memory, power of memory, of jurors and judges, and it is possible that it gives one juror, an undue influence with his fellow jurors; but certainly until a caution is given it would seem to me a very remarkable thing that a juror should be said to be guilty of misconduct because he took down some notes of the evidence that was being- introduced. There was no error in the court refusing the motion for a new trial .upon that ground —misconduct of the jury in taking notes.”

This subject is dealt with in 64 Corpus Juris, at pages 1012 and 1013 under the title “Trial,” Section 789. The rule is stated as follows:

“If they do not thereby consume too much time, it is not improper for the jury to take notes of what is said, or occurs, during the trial, or to make, with permission of the court, memoranda of the articles in suit and the value placed thereon by the* evidence. Counsel has no absolute right to have the jury take notes at his dictation, and the trial court in its discretion may refuse to allow this to be done.”

This statement of the rule is founded upon the case of Lilly, Admr., v. Griffin, 71 Ga., 535, at page 540, where the court held:

“The practice of allowing the jury to take notes of calculations submitted by either of the litigants, or of what is ‘said’ or ‘claimed’ by either in argument, is no longer an open question in this court. In Tift v. Towns, 63 Ga., 237, 242, the point was ruled directly. Bleckley, J., delivering the opinion of the court, said: ‘It was not error to abstain from preventing one of the jurors from taking notes of what the plaintiff’s counsel claimed, though the notes were taken at the request of the counsel during the argument, and while he read from a calculation which he had prepared. Of course this practice would be inadmissible, if attended with delay or undue consumption of time. * * * There is no power to compel any juror to comply with such request, and the counsel of either party is free to make it.’ ”

In the case of Cheek v. State, 35 Ind., 492, which is cited as supporting the doctrine that it is misconduct for jurors to take notes, the court had instructed two jurors who had been observed taking notes ‘not to do so,’ but the jurors in spite of the direct instruction of the court continued to take notes and took them to the jury room. The court held, on pages 494 and 495 of the opinion:

“This disobedience of the order of the court was a gross violation of, and contempt for, the authority of the court, and was misconduct for which the jurors might have been severely punished, and of itself would entitle the defendant to a new trial. It was well calculated to divert the attention of the jurors, while they were busy, pencil or pen in hand, from the evidence, as it would naturally be progressing while such notes were being made. The juror is to register the evidence,, as it is given, on the tablets of his memory, and not otherwise. Then the faculty of the memory is made, so far as the jury is concerned, the sole depository of all the evidence that may' bo given; unless a different course be consented to by the parties, or the court. * * * The jury should not be allowed to take the evidence with them to their room, except in their memory. It can make no difference whether the notes are written by a juror or by some one else. Jurors would be too apt to rely on what might be imperfectly written, and thus make the case turn on a part only of the facts.”

See also: United States v. Davis, 103 F., 457, at page 470; Chicago & Northwestern Ry. Co. v. Kelly, 84 F. (2d), 569, at page 576; Miller v. Commonwealth, 175 Ky., 241, at page 245, 194 S. W., 320; Commonwealth v. Tucker, 189 Mass., 457, 76 N. E., 127, 7 L. R. A. (N. S.), 1056.

It will be seen from the foregoing authorities that while the taking of notes of the evidence by a jury is not looked upon as good practice by the majority of the courts of last resort, yet, where a juror has done so openly and under such circumstances that counsel must have been cognizant that notes were being taken, and no objection was interposed or a request made that the juror be instructed not to take notes, error could not be claimed when the trial court has refused to grant a new trial because notes were taken.

The courts that find no misconduct on the part of a juror taking notes do so on the theory that by so doing the juror preserves for his better consideration testimony that might otherwise be overlooked during the deliberation of the jury. This is said to be particularly true where the cases are long and involved. On the other hand, the courts that hold that note taking constitutes misconduct do so on the theory, that the taking of notes might tend to distract the juror’s mind from the evidence which is being presented while the juror is busy with his notes. Unless the trial is delayed to afford time to make notes, such objection seems sound.

It is suggested that courts universally take notes when trying a case without the intervention of a jury. This is true. But the judge having studied the pleadings and noted the issues, is in a much better position to take notes than the jurors who, except for the opening statements, are not told what the issues will be until all of the evidence has been received. Then, too, the judge can request the witness to stop while the court records what has gone on before. But if any such practice should be indulged in at the request of twelve jurors there would be an endless delay and trial lawyers frequently put to untold disadvantage in conducting a cross-examination.

Not intending to modify the rule as set forth in the case of Davis Die Co. v. Beltzhoover Electric Co., supra, and the earlier Ohio cases which find that there is no prejudicial error in permitting a juror at his own discretion to take an occasional note, and that when his conduct is discovered or observed it is within the discretion of the court whether he should be directed to stop or be permitted to continue, yet, where the court without the request of either of the litigants and in fact over their objections, as in the instant case, suggests to the jurors that they may take notes and furnishes to each juror, without such juror’s request, the necessary materials for taking notes, together with instructions as to how they shall be kept during the trial, the court goes far beyond what is commonly accepted as good trial procedure, even in those jurisdictions where the right of jurors to take notes is fully recognized. Such conduct on the part of the court could easily be interpreted by the jurors as indicating that it is a part of their duty as jurors to take notes even though their personal aptitudes would disqualify them from attempting to try a case in that fashion.

If trial procedure is to be changed to the extent as was done in this case, such change should be made by the Legislature and not by the courts.

We find that appellant’s claims of error in that the verdict is contrary to law and against the weight of the. evidence and that the court erred in the admission of evidence is without foundation and such claims are therefore dismissed.

Coming now to the court’s charge — the appellant in.her assignment of errors has included a claim of prejudicial error with regard to special charges given by the court before argument. However, the plaintiff has failed to mention this assignment of error in her brief, and we will therefore assume that such claim has been abandoned.

The law of Ohio relative to the duty of a municipal corporation as to the care of the public streets and highways is controlled by statute, Section 3714, General Code, which provides as follows:

“Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance.”

It is perfectly clear that a violation of the duty imposed by this statute sounds in nuisance and not in negligence. A nuisance signifies anything that causes hurt, inconvenience, annoyance or damage, while negligence is the failure to exercisé ordinary care. These two terms are hot synonymous. In Selden v. City of Cuyahoga Falls, 132 Ohio St., 223, 6 N. E. (2d), 976, the third paragraph of the syllabus provides:

“The term ‘nuisance’ is not synonymous with negligence and does not necessarily rest upon the degree of care used, although a nuisance may be and frequently is the consequence of a negligent act.”

In six different places, the charge of the court, in the instant case, referred to the duty of the plaintiff to show that the defendant was “negligent in one or more of the ways claimed” in her petition, by the proper degree of proof before she would be entitled to a verdict. There is no duty on the part of the plaintiff to show, by any degree of proof, that the hole in the sidewalk was the result of any negligence on the part of the defendant. If there was, in fact, a hole in the sidewalk of such magnitude that it was capable of causing hurt, inconvenience, annoyance or damage to sidewalk users, then a nuisance did in fact exist, no matter what the conduct of the city had been with regard to it. And, if the city, through its proper agents, knew that such hole was there "a sufficient length of time prior to the claimed accident so that by the use of due diligence repairs could have been made or the public protected from the danger thereof, or, if such hole was there for such a length of time that by the exercise of due diligence it could be said that the city should have known thereof in time to, by the exercise of due diligence, make the necessary repairs or protect the public from the danger thereof, before the time when it is claimed the appellant was injured, then, and in that event, liability could be established against the city for any damage sustained as a proximate result of such nuisance if the claimant was, under the circumstances, in the exercise of ordinary care for her own safety.

The court’s charge placed a far greater burden upon the plaintiff than would be required under the rule as just stated. In this regard, therefore, the rights of the plaintiff were materially prejudiced.

One other part of the charge must be considered.

The court charged the jury in part as follows:

“Referring once again to what I said at the outset, the plaintiff to make a case must prove negligence in one or more respects by the preponderance of the evideuce. She must show that while she was in the exercise of ordinary care for her own safety, she was injured as a proximate result of the negligence of the defendant in one or more respects as set forth in her petition. ’ ’

There is no duty on the part of the plaintiff to show by a preponderance of the evidence that she was in the exercise of ordinary care for her own safety before she is- entitled to recover.

The court, in another part of the charge, just preceding this paragraph, correctly' stated the rule but does not correct the damage.

In the case of Industrial Commission v. Ripke, 129 Ohio St., 649, 196 N. E., 640, paragraph 2 of the syllabus, the court,stated:

“Where the court states a correct rule, and in another portion of the charge states an incorrect rule' upon the same subject, and nothing further is stated to indicate to the jury which rule is to be followed, and there is nothing in the verdict of the jury to indicate which rule was in fact followed, no presumption arises that they have followed the correct rule, and the error will therefore be deemed to be prejudicial.”

See, also, Booksbaum, a Minor, v. Christian, 53 Ohio App., 384, 5 N. E. (2d), 177.

For the reasons, therefore, first of the manner in which the jury was addressed by the court as to taking notes, and second because of error in the charge of the court upon the law in the particulars as herein set forth, the judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Morgan, P. J., and Lieghley, J., concur.


author: Ross, J. Hamilton, J.,

text:
    Knight, Appellee, v. The New England Mutual Life Ins. Co., Appellant.
    (No. 6107
    Decided June 15, 1942.)
    Messrs. Davies, Hoover & Beall, for appellee.
    Messrs. Marble & Vordenberg, for appellant.
   Ross, J.

Tliis is an appeal on questions of law from a judgment rendered by the Court of Common Pleas of Hamilton county, pursuant to the verdict of a jury in an action in which the plaintiff as beneficiary of two identical policies of insurance upon the life of her deceased husband sought to recover the balances due tliQreon after the deduction of loans to the insured.

The contentions of the defendant insurance company present two principal problems for the consideration of this'court, one involving the waiver of premiums, the other the matter of extended insurance.

It appears from the evidence that the policies involved carried “riders” containing the following clause:

“Upon receipt of due proof that the insured has become physically or ..mentally incapacitated so as to be wholly and permanently unable to engage in any occupation or profession or to perform any work whatsoever for compensation, gain or profit; and that such disability has occurred while the policy and this agreement are in full force and prior to the policy anniversary nearest his sixty-fifth birthday, and has existed for a period of ninety days, the company will pay to the insured a monthly income of fifty dollars and will also waive the payment of every premium thereafter due upon the policy and this agreement, subject to the conditions herein set forth.”

The first quarterly premium claimed by the plaintiff to have been waived was due October 16, 1939; the grace period expired thirty days thereafter. That the insured was for some time prior to the date when such premium was due, permanently and totally disabled may be assumed as fully proved. That such condition continued until the date of his death on July 15, 1940, is also fully evidenced.

The record also clearly shows .that no notice of such disability was received by the defendant until October 30, 1940, some three months after the death of the insured and almost a year after the due date of the first premium claimed to have been waived. No premiums were paid on or after such date.

The plaintiff claims that, by virtue of the clause quoted and the facts stated, the defendant is considered to have waived the premiums due, and that such policies were in full force and effect at the date of the death of the insured.

The defendant claims that, such premiums not having been paid, and no notice of disability having been received until long after such premiums were duo and long after the death of the insured, the waiver provisions of the clause quoted were not invoked.

The evidence shows that the insured, while suffering from a disability which rendered him incapable of carrying on his business during the period in question, was at all times almost up to the date of his death fully capable of sending or giving notice to the defendant of the disability now claimed to have existed.

The controversy between the parties centers about the word “thereafter” appearing in the clause quoted. The plaintiff asserts that this word applies to the disability and that premiums due “thereafter” are waived. The defendant claims that the word refers to notice and that premiums are only waived after such notice has been received.

That he who writes a contract must extend to the other party or parties the most favorable, reasonable interpretation of the language employed where ambiguity appears in what is written is now accepted universally as a rule of construction of contracts. This is particularly true in the case of policies of insurance. In Stipcich v. Metropolitan Life Ins. Co., 277 U. S., 311, 72 L. Ed., 895, 48 S. Ct., 512, the sixth paragraph of the syllabus is:

“Narrow and unreasonable interpretations of clauses in an insurance policy are not favored. When open, with equal reason, to two constructions, the one most favorable to the insured will be adopted. ’ ’

Clauses almost identical with those here involved, or varying only slightly in terminology, have been considered by many courts. The conclusions thereon are anything but consistently uniform.

The plaintiff relies upon a typical example in a case decided by the United States Court of Appeals for the Eighth Circuit, in Minnesota Mutual Life Ins. Co. v. Marshall, 29 F. (2d), 977. The clause therein consiclered is noted on page 978 of the opinion as follows:

“The policy provided that if the insured, while the policy is in full force and effect, and without default in the payment of premiums, shall become totally and permanently disabled, as hereinafter provided, and shall furnish satisfactory proof thereof, the company will waive the payment ■ of premiums thereafter becoming due. * * * Second: Upon the receipt of due proof of total and permanent disabilities as above defined, the company will waive the payment of all premiums thereafter becoming due.’ ”

The facts involved in the Marshall case develop a situation in which the construction placed upon the clause in favor of the claimant appears to be especially compelling.

The insured there was incapacitated by an acute attack of appendicitis a few days before the expiration of the grace period mentioned in his policy. He lived alone upon a farm. Two days after the expiration of the grace period he came to the home of his father, some three miles distant, was taken to a hospital, and died about 2 weeks after an operation. Of course, the insured could have immediately notified the company of his disability and the premium due at the end of the grace period would have been waived. The court said in the opinion:

“On the question of when the time of waiver of the payment of premiums begins under policy provisions similar to these quoted, there are two lines of decisions; one holding that proof of disability fixes the time when the waiver begins; and the other holding that the time of waiver is the time of disability, and that a reasonable time thereafter is allowed to make proof of such disability, and that if death occurs before the proof of disability is made, although after the due date of the premium, the insurance company is liable, where the disability arises before the due date of the premium, and continues until death.”

It will be observed that the instant situation does not fall within either of the alternatives suggested by the court.

Certainly, it cannot be maintained that almost a year is a reasonable time in which to give notice of disability. The evidence in the instant case shows that the insured was disabled within the meaning of .such clauses long before the quarterly premium was due or the grace period had elapsed and was so disabled continuously up to the time of his death. The first words, “upon receipt of due proof,” of the clause in the polk cies here under consideration, upon which the plaintiff in this case relies, are significant. The clause is in large type and is not drafted in any way to cause misapprehension as to its meaning. The word “thereafter,” which plaintiff seeks to make a sine qua non, is nearer to the word “waive” than to the word “disability,” to which plaintiff seeks to attach it. Only by a strained, unreasonable effort may it be claimed that the clause means that a notice of disability received some twelve months after the same is incurred, where the insured is capable of giving notice, may relate back to the time of such disability and be effective as a waiver of premiums from the first date of such disability, although the.company was completely ignorant of its existence.

That cases of coma or amnesia may exist which would render such construction harsh may not be here urged against a situation which presents no claim to extraordinary or strained interpretation by this court.

The case of Wolf v. Prudential Ins. Co., 31 N. P. (N. S.), 154, is cited by plaintiff. The instant issue was not there involved, but the opinion is not adverse to the position here adopted.

Nor is the case of Western & Southern Life Ins. Co. v. Smith, 41 Ohio App., 197, 180 N. E., 749, of any value to the plaintiff, as it also sustains the view here taken. Judge Mauck, after noting the Marshall ease and its peculiar incidents, cites many authorities in which receipt of proof of disability is required as a precedent to waiver of premiums.

It is unnecessary to here again note those authorities.

Western & Southern Life Ins. Co. v. Smith, supra, is cited by Justice Cardozo in Mutual Life Ins. Co. of New York v. Johnson, Admr., 293 U.S., 335, 338, 79 L. Ed., 398, 55 S. Ct., 154, together with many other decisions of courts upon such a' clause. The Supreme Court of the United States in that case accepted the construction of the Virginia courts (in which state the case arose) not because it approved such construction, but solely because the court considered that the clause should be interpreted according to the mandate of the highest court of the state in which the case was considered. It is interesting to note the conclusion of the Virginia court. “The ruling there was,” states the Supreme Court, “that notice was excused by physical and mental incapacity to give it.” Whether an independent approach to the matter by the Supreme Court of the United States would have required the application of a less humane rule does not appear. Certainly, the ruling of the Virginia court is reasonable as well as humane.

The facts in the instant case do not require an application of any rule extending the clause beyond the terms used requiring notice before waiver. A conclusion upon such situation is reserved until other facts require a consideration of the clause again in the presence of such changed circumstances.

It is thus evident that in the instant case the policies lapsed on the 16th day of November, 1939.

Was there extended insurance carrying the policies in force to the date of death of the insured?

This question involves purely a mathematical calculation, which a court as well' as a jury could determine accurately. The defendant concedes all claims made by the plaintiff and still contends that there was not sufficient balance in the cash surrender value of the policies to extend the insurance, by retiring premiums due, to July 15, 1940, the date of the death of the insured. To claim that insurance could be extended by reference merely to the table of extended insurance set out in the policies, without having any regard to depletion by reason of loans and interest, due and payable, is absurd and is a position wholly untenable. By reference to the evidence, it appears that giving the plaintiff the benefit of every reasonable claim to credit balances after deducting loans and simple interest, there were not sufficient balances remaining to the credit of the insured to carry the policies in effect until his death.

For these reasons, the judgment of the Court of Common Pleas is reversed and judgment here rendered for the defendant.

Judgment reversed.

Matthews, P. J., concurs.

Hamilton, J.,

dissenting. I clo not agree with my colleagues in the conclusion reached by them in this case.

This action was instituted in the Court of Common Pleas of Hamilton county to recover certain instalments allegedly due the plaintiff on two policies of life insurance issued by the defendant on the life of Bennett R Knight. The plaintiff, the widow of Knight, was named beneficiary. The policies were payable in monthly instalments, and suit was for those instalments which had accrued to the date the action was commenced.

The two policies were identical in their provisions. The premiums on the two policies were paid to and including July 16,1939, which was ten years after their issuance. Plaintiff alleged nonpayment of the quarterly premium due October 16, 1939, but contends that as of that date the policies had an extended insurance value in excess of twelve years. Plaintiff further alleged the issuance, as a part of each policy and for a separate additional premium, of a supplemental agreement waiving payment of premiums thereafter due in the event the insured should become wholly and permanently disabled by physical or mental incapacity. Plaintiff further alleged the occurrence of such total and permanent disability prior to October 16, 1939, while the policies were in full force and effect. Plaintiff further alleged that due proof of permanent and total disability was furnished the defendant on forms furnished by it, and the waiver by the defendant of the proof of death which occurred July 14, 1940.

Defendant by answer admitted the issuance of the policies and the existence of the supplemental agreements. It then alleged that proofs of disability were not furnished it until after death of the insured.

By way of answer to the plaintiff’s claim that the policies were in effect as extended insurance on the date of the insured’s death, the defendant alleged that the policies lapsed for nonpayment of a quarterly premium due October 16, 1939; that there were outstanding loans against each policy sufficient to reduce the cash value at the time of the lapse to $17.50; and that $17.50 was sufficient to carry the policies for a period of one hundred and sixty-tliree days or until March 27, 1940, a little over three months prior to the death.

The plaintiff by reply denied that the indebtedness upon the policies was in the amount claimed by the defendant.

The defendant by answer denied that Knight bad become totally disabled prior to October 16, 1939, and followed this with a general denial and denied waiving proofs of death.

The main controversy in the law suit is whether the waiver of payment of premiums began upon the occurrence of actual total and permanent disability prior to October 16, 1939, or upon the filing of proofs thereon with the defendant, which proofs were filed subsequent to July 14, 1940.

The trial court in effect charged the jury that waiver of payment began upon the occurrence of the total and permanent disability, and did not depend upon proofs filed with the defendant.

Another issue in the case was whether the true and correct amount of the insured’s indebtedness on the policies as of October 16, 1939, was sufficient to reduce the extension of the insurance under the terms of the policies, to a shorter period of time between October 16, 1939, and July 14, 1940. In other words, the defendant claimed it was indebted to the insured on October 16, 1939, only to the extent of $17.50. The claim of the plaintiff was that the amount due the insured was much larger and was amply sufficient to carry the insurance beyond the date of the death of the insured on July 15, 1940.

The jury returned its verdict for plaintiff and judgment was entered by the court on that verdict.

If the jury found for the plaintiff oil both or either of these two issues, the judgment cannot be disturbed by this court. The verdict was* a general verdict, and if there was sufficient cash value due the insured on October 16, 1939, to extend the insurance to the date of the death of insured or to the time of the filing of the proofs of death, it would make no difference in the construction of the policies as to the waiver agreement. Under the evidence, the jury could have found that the loan made by the insured was not as much as claimed by the defendant and that there was sufficient cash value to extend the insurance to the date of the actual filing of proof of death of the insured. That the insured was totally and permanently disabled for more than nine months prior to his death, is amply supported by the evidence, and the cash value could have been found by the jury sufficient to support the validity of the policies at the time of his death, regardless of the waiver provision.

If the court was in error in charging the jury that the time for the beginning of the waiver was upon the actual occurrence of the total and permanent disability, and if upon the issue of the amount of extended insurance by cash value, it was without error, the judgment would stand under the two-issue rule.

I find no serious contention of error except that the verdict is against the weight of the evidence on the cash value. Had the verdict been tested by special interrogatories, and the jury had found that the amount of credit due the insured was not sufficient, it would then have been necessary to determine the proper construction of the following clause in the policy: “Upon receipt of due proof that the insured has become physically or mentally incapacitated [as there defined] the company * * * will * * * waive the payment of every premium thereafter due upon the policy and this agreement.”

Hoes this mean the filing of proof of disability, or occurrence of disability? Courts are widely divergent in the construction of such a clause. The writer of this opinion holds that the clause is ambiguous, and was written by the defendant, and, therefore, under the Ohio statutes, such clause requires a. construction favorable to the insured, and this construction would require the clause to have reference to the actual occurrence of the disability. However, it is not necessary to determine this question, for the reason, that under the two-issue rule, the judgment and verdict should stand. Another_eonclusion would require this court to determine facts determinable by a jury only.


author: Washburn, J.

text:
    Henson, Appellant, v. Stine, Appellee.
    (No. 3584
    Decided June 1, 1943.)

      Mr. G. W. Dilley, for appellant.

      Mr. Mark F. McChesney, for appellee.
   Washburn, J.

The motion of the appellee to dismiss for want of jurisdiction is overruled.

This was an equity case, and in such case the time for the filing of a motion for a new trial runs from the date of the judgment. In law cases the time for filing the motion is from the verdict, or, where-there is no jury, from the finding of tiro court, which is the equivalent of a verdict. There is no such thing as a “verdict” in an equity case, and therefore no such thing as the equivalent of a verdict. Consequently, the written opinion of the trial court in this case, although “filed,” was not the date from which the motion for a new trial should have been filed, nor the date from which any other proceedings should have been taken. It is conceded that the motion for a new trial in this case was filed within three days from the entry of judgment, and that the notice of appeal was filed within 20 days after the overruling of the motion. The designation of the appeal was “law and fact.”

The case involves a driveway partly on each of two adjoining lots, and two occupants of said lots who, through years of bickering and quarreling, have injured the health of each and developed a state of mind and viewpoint which renders impossible a peaceful settlement of their differences.

We are not called upon to apportion the blame, nor have we the evidence upon which to do so. We are called upon only to determine a question of law upon the particular facts presented in this ease.

The Goodyear Heights Realty Company, the owner of a tract of land, subdivided the same into lots and duly filed a plat thereof which contained nothing which has a bearing on the question here presented. The surface of the two adjoining lots involved in this action was some four or five feet higher than (he street and walk in front of the lots, and there was no means of access except from said street.

The company built a house on each of the lots, and constructed windows leading to coal bins near the front of the houses and on the side of the lot line between the houses, so that the bins and the entrances thereto from the outside were opposite each other.

Before the houses were fully completed, the company sold the lots to different purchasers, and they moved in at about the same time. Thereafter the company completed the houses, and also excavated, from the street and along the line between the lots and for a practically equal distance on each side of said line, an opening in the bank, so as to afford access from the street to both of the coal bins; and the purchasers used said way partly on each of the lots as a means of access to said bins, and seeded to grass the land between the houses beyond the line of the coal bins.

Later the owners of the lots orally agreed that each should at his own expense construct on his lot along said line between the lots a concrete strip from the coal bins back to the rear of the houses, which they could both use so long as they owned the property, which agreement was performed.

The deeds of the company to said purchasers contained no easement, by grant or reservation, as to either lot, and in none of the deeds to subsequent purchasers of said lots is there any mention made of any right-of-way easement.

Defendant, the owner of one of the lots, proposed to build her own driveway entirely on her'own lot from her coal bin to the rear of her house, and to appropriate for her exclusive use her land between said houses along and up to the lot line, which would deprive the plaintiff of the use of the existing driveway from her coal bin to the rear of her house; and this action was brought by the plaintiff to enjoin the defendant from so doing.

In considering the question presented, one should keep in mind that no prescriptive right is claimed, and that it is conceded that there is no express grant of an easement to plaintiff or her predecessors in title, and no basis for a claim of a way of absolute necessity.

It is perhaps well to state some general principles on the subject under consideration.

An easement is an incorporeal hereditament; a right or privilege annexed to the ownership of real property; and, being an interest in real estate, it can be conveyed only as is real estate under our statutes.

The basis of the creation of an easement is a grant or reservation, either express, implied or presumed.

If it is an express grant, its extent and limitation is ascertained by the language of the grant and the circumstances surrounding the transaction; if it is an implied grant, it is limited to that which is found to be clearly intended or fairly presumed to be intended.

In the instant case, the circumstances warrant the conclusion that the company intended to provide a joint way of access to said coal bins over parts of each of the lots, but it does not clearly show an intention to grant or reserve a right-of-way easement in favor of or against the purchaser of either of the lots in the lands between the houses and extending back from the coal bins; and under the circumstances shown we cannot fairly presume that such was the intention of the company.

A decree may be drawn confirming a driveway easement back as far as the windows of the houses which lead to the respective coal bins, and denying an injunction against the defendant from building a driveway entirely on her own lot from her coal bin to the rear of her property.

Decree accordingly.

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


text:
    Kelley, Appellee, v. Kelley, Appellant.
    (No. 3694
    Decided February 28, 1944.)

      Mr. Charles R. Doll, for appellee.

      Mr. Fred W. Postle, for appellant.
   Geiger, J.

This is an appeal from the decision of the Court of Common Pleas of Franklin county, Ohio, in a divorce case.

The assignment of errors is to the effect that the judgment entered by the Court of Common Pleas of Franklin county, Ohio, Division of Domestic Relations, on the 1st day of December, 1943, is erroneous and against the just rights of this defendant in the following respects:

(1) The judgment of the court is contrary to law.

(2) The judgment of the court should have sustained the demurrer of the defendant.

The notice of appeal and the assignment of errors refer to a judgment of the Court of Common Pleas made on the 1st day of December, 1943. The record does not disclose any judgment under this date. There is, however, an entry of the Court of Common Pleas dated December 4, 1943, and filed in that court as of December 6, 1943. We assume that its designation as of December 1, 1943, was an inadvertent error which under the liberal rule of the Supreme Court may be corrected by amendment. We will, therefore, consider-the entry as of December 4th or 6th, as being the judgment of the court from which an appeal is taken.

The entry is as follows:

‘ This cause came on to be heard upon the demurrer of the defendant to the petition of the plaintiff, was argued by counsel and submitted to the court; on consideration whereof the court finds said demurrer not to be well taken and overrules the same. Exceptions by the defendant. Leave is granted to the defendant to plead within ten days.”

The petition which gives rise to the questions here presented is that of Ethel M. Kelley against Edward R. Kelley. The petition makes the usual formal allegations and continues:

“The defendant has been guilty of gross neglect of duty and of extreme cruelty toward plaintiff, and this has continued for many years, last past, all of which will be made to appear on a trial of the merits. As the result of the conduct of the defendant, plaintiff has become a nervous wreck, and living with him has become unbearable. ’ ’

To this petition a demurrer was filed on the grounds that the .petition did not state a cause of action, and that it merely stated conclusions.

We have frequently had before us these abbreviated petitions for divorce, wherein counsel for plaintiff merely pleads the ground set up in the statute, without giving any details which, if proved, would sustain the allegations. We wish to register our condemnation of such forms of pleading. The defendant is entitled to know the facts upon which the action is based, other than the naked statement that he is guilty of extreme cruelty or other statutory offenses. This form of pleading saves no time in that it gives rise to the contention upon the part of the defendant, either that the petition is demurrable, or subject to a motion to make definite and certain. If the pleader would state the facts which he claims constitute his cause of action, the matter could proceed without.the delay incident to this abbreviated and inartistic form of the pleading.

However, the matter is before us and there are, in our judgment, two very good reasons for the conclusions which we shall reach.

We feel safe in following the case of Seibel v. Seibel, 30 Ohio App., 198, 164 N. E., 648, decided by the Court of Appeals of Hamilton county. It was held in that case:

“1. Petition for divorce alleging statutory grounds of extreme cruelty and gross neglect of duty towards plaintiff stated cause of action, without necessity of pleading facts constituting grounds.

“2. Where petition is indefinite and uncertain, trial court, on proper motion to make definite and certain, filed by adverse party, may in his discretion grant motion. ’ ’

We entertain no doubt that the trial court would have granted a motion to make definite and certain if the same had been made, but defendant’s counsel saw fit to file a demurrer which was overruled, and which is the basis of this appeal.

We overrule the first assignment and hold that the judgment of the court in overruling the demurrer was not erroneous.

The second ground, upon which we base our conclusion is that Section 12223-2, General Code, which defines what is a final order, states:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, * * * is a final order which may be reviewed, affirmed, modified, or reversed, with or without retrial, as provided in this title.”

We have frequently held that the sustaining or overruling of a demurrer is not a final order unless subsequent to that action of the court there be some proceeding which determines the action.

In the case at bar, the court overruled the demurrer of defendant and granted leave to the defendant to plead within ten days. There is no ground for appeal to this court from such order of the trial court. A large number of eases may be found under paragraph 20, “Demurrer, ruling on,” in the annotation to Section 12223-2, General Code.

The appeal is dismissed and the cause is remanded.

Appeal dismissed and cause remanded.

Barnes, P. J., and Hornbeck, J., concur.


text:
    Sibberson, a Minor, Appellant, v. The Sherlock Baking Co., Appellee.
    (No. 3959
    Decided April 26, 1943.)

      Messrs. Deeds & Zeigin, for appellant.
    Messrs. Kirhbride, Cole & Frease,-for appellee.
   Lloyd, J.

The defendant, The Sherlock Baking Company, engaged in a general baking business and operated in connection therewith a number of trucks for the delivery of its products to its customers. On April 6, 1942, one of its delivery wagons was being so used on Norwalk street in Toledo. The plaintiff infant resided with his parents on the southerly side of this street where there was a sidewalk paralleling the 18- or 20-foot vehicular-travelled portion of the street, which portion was 8 or 10 feet from the sidewalk line. In addition to the Sibberson home, there were several other residences on that side of the street. The baking company truck stopped at the second house westerly of the Sibberson home. At this time there were two children on the sidewalk in front of the residence next adjoining that of the Sibbersons. The plaintiff was not one of them.

The driver of the truck, who had not at any time seen the plaintiff, re-entered and started the truck and, an instant later, one of the children on the sidewalk “hollered,” whereupon the driver at once stopped. The father of the boy testified that the driver said:

“I didn’t see the boy. If that other little boy wouldn’t have hollered, I would have run right over his stomach.”

How or when the boy ran into or under the truck, or where he had been before, or where, in fact, he was when the truck was started, the evidence does not disclose. At the conclusion of plaintiff’s evidence, the trial court directed a verdict for the baking company. From the judgment entered upon the verdict, the plaintiff appeals to this court, on questions of law.

Plaintiff contends that the duty rested upon the employees of the baking company in charge of the truck to exercise ordinary care to see that there were no children in close proximity to the truck, who might be injured thereby. What ordinary care demands should or should not be done, depends upon the factual conditions and circumstances present in the particular case under consideration. In the instant case, there was nothing to warn the driver that the plaintiff, coming from somewhere unknown to and unseen by him, was near the truck. There is nothing in the evidence tending to prove that the employees in charge of the truck acted otherwise than persons of ordinary care and prudence would have, under the same or similar circumstances.

The plaintiff contended, also, that the opening statement of counsel was such as, if true, would require a reversal of the judgment. Prom the reading of such statement, however, the members of the court find nothing therein inconsistent with the facts developed by the evidence.

The judgment is affirmed.

Judgment affirmed.

Carpenter and Stuart, JJ., concur.