text:
    The State of Ohio, Appellee, v. Joseph, Appellant.
    (No. 4392
    Decided June 14, 1950.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. George T. Tarbutton, for appellee.

      Messrs. Herbert & Dombey and Mr. Joseph L. Meenan, for appellant.
   Hornbeck, J.

The defendant was charged with subornation of perjury in an indictment containing fourteen counts. At the conclusion of the evidence, five of the counts were dismissed. The defendant was tried on the other nine counts, acquitted on sis of them, and convicted on three, namely, the 9th, 10th, and 14th. A motion for a new trial having been submitted and overruled, defendant was sentenced to pay the costs of the prosecution and to be imprisoned in the Ohio Penitentiary until discharged according to law, the “three counts to be served consecutively.”

Fourteen errors are assigned, all of which we have carefully considered. We are satisfied to say, without discussion, that no one of them, unless it be No. 4 or 8, is supported by the record. Assignments of error Nos. 4 and 8 require elucidation. No. 4 is:

“There was not any evidence to support the verdict of the jury of guilty upon the three counts of the indictment upon which the jury found the defendant-appellant guilty.”

The three counts under consideration in this appeal are the 9th, 10th, and 14th. The 9th count of the indictment relates to the divorce case of Pearl Wehr v. Crumbley Wehr and, so far as is pertinent to the inquiry here, charges, that “the defendant did * * * suborn said Pearl Wehr to commit perjury by testifying on oath lawfully administered as follows: That said Pearl Wehr was and had been for at least thirty days immediately preceding the filing of the petition in said cause aforesaid a bona fide resident of the said Franklin county, Ohio, said testimony being material to said cause and being false in the following respects: that said Pearl Wehr had not resided in Franklin county, Ohio, during any of the time so testified * * *.”

The charges in the 10th count, involving the divorce case of Charles Wm. Bash v. Leanette Hazel Bash, and in the 14th count, involving the divorce case of Robert W. Mehl, Jr., v. Lillian B. Mehl, are identical with that in the Wéhr case except for the interposition of the name of Charles Wm. Bash in the 10th count and of Robert W. Mehl, Jr., in the 14th count.

Pearl Wehr, Charles Wm. Bash and Robert W. Mehl, Jr., all testified that they were not, at the time of their divorce trials, and had not been at any time prior thereto, residents of Franklin county. They testified also To facts from which it could be inferred that the defendant, when he filed their petitions and at the time of their trials, knew they were not then and had not theretofore been residents of Franklin county,, and knew what had been done to present an indicia of bona fide residence in that county, as required by the divorce statute.

Upon the specific charge in the indictment, Pearl Wehr said that in her divorce action, she “swore in the presence of Mr. Joseph that she had been a bona fide resident in Franklin county for 30 days preceding June 18,” the petition being filed on June 21, 1948, and that ‘ ‘ 30 days before filing the petition she had a residence in Franklin County.” This, in our judgment, was sufficient to establish that she had testified falsely in a material matter in her divorce action and in the particulars set out in the 9th count of the indictment.

The testimony in support of the Bash and Mehl counts is not specific on the material question of residence. Bash said that in his divorce case he was asked how long he lived in Franklin county, and made the reply, ‘ ‘ thirty days. ’ ’ Manifestly this did not support the charge. He did not say when he lived in Franklin county for 30 days as related to the time of the filing of his petition. As a matter of fact he did not define any given 30 days when he lived in the county. Of course, Bash said nothing about his true residence at the time of the divorce hearing because, upon the theory of the state, it was his purpose and that of his counsel, the defendant, that the trial judge be misled into believing that he was a bona fide resident of Franklin county. If there was any testimony in the Bash divorce action to the effect that he had been a resident of Franklin county for 30 days immediately preceding the filing of the petition it is not established by the record in this case.

The same infirmity is found in the testimony of Robert W. Mehl, Jr. In his divorce case he testified that he had lived at the address given in his petition, but he did not state when he moved there or how long he had lived there, nor did he relate his residence to any period of time immediately prior to the date of the filing of his petition. In both the Bash and Mehl counts, the evidence essential to establish the specific charges respecting the testimony as to residence of these parties was not forthcoming.

Section 11980, General Code, provides in part:

“* * * Actions for divorce * * * shall be brought in the county of which the plaintiff is and has been for at least thirty days immediately preceding the filing of the petition, a bona fide resident * *

Both of these requisites, namely, that the plaintiff (1) is and (2) has been for at least thirty days a bona fide resident, relate to the time of the filing of the petition. The first requires that the plaintiff shall be a bona fide resident when the petition is filed and the second that he shall have been a bona fide resident for at least 30 days immediately preceding the filing of the petition. A mere statement that a party at the time of the hearing lived in the county where the action was brought, or that he had lived there for a certain length of time which could not be fixed as 30 days immediately preceding the filing of the petition, is not probative of the material requirements as to residence essential to venue in a divorce action.

To constitute perjury in a trial the subject matter falsely testified to must be in respect to a matter material upon that trial. Section 12842, General Code; McCaffrey v. State, 105 Ohio St., 508, 138 N. E., 61. The state properly selected the language in the indictment which set forth the material matter which it claimed had been falsely sworn to, but it failed to produce the proof to support the charges. The trial judge properly instructed the jury that it must find that Bash and Mehl “made or testified to the statements alleged” in the indictment.

The court said in McCaffrey v. State, supra:

“Under the constitutional provision and this statute, it is quite clear that there must be an, averment of the false testimony McCaffrey gave upon the Mc-Gannon trial; that such testimony was in respect to a matter material upon that trial.”

It is likewise quite clear that the averment of the false testimony having been set forth, the proof must conform to the charge. It requires no extensive citation of authority to support the proposition that the state must prove every essential element of the offense charged. It was a requisite of proof that it appear that the testimony was given in the divorce cases, if not exactly, at least substantially, as set out in the indictment. If this was not sworn to, the corpus delicti, i. e., the falsity of the matter assigned, could not be established. State v. Courtright, 66 Ohio St., 35, 63 N. E., 590.

We do not ground our conclusion upon the proposition that the testimony of Bash and Mehl, as shown to have been given in their divorce cases, could not have been the proper basis for a charge of perjury in any circumstance, in that it was not material to a matter to be proven in the trial, viz., their residence when the case was instituted, but that it was not the basis of the perjury charged in the 10th and 14th counts of the indictment in this case.

The eighth assignment of error is:

“After the case was submitted to the jury and it had' retired for deliberations it was later taken out to dinner by three officials properly sworn to perform their duty, but the court himself ate dinner with the jury at the same table and engaged in conversation with the jury, to the prejudice of the defendant-appellant. ’ ’

As regards this assignment of error, the record shows the following:

“Mr. Herbert: Could the record show this, Your Honor please, that after the court had charged the jury and had submitted the case to the jury and the jury had retired for deliberation upon the case, that the court then * * * released the jury under the presence of two officials of the court, * * *, to go to dinner, and that the court joined them and sat at the table and ate dinner with the jury.
“The court: The record may show that the jury was not released in the sense that you have used that word but the jury was in the charge of three officials of the court, and in a body were conducted to a place where they had their evening meal and that the court was also present watching the three officers who had charge of the jury.
“Mr. Herbert: And ate with the jury, is that correct, Your Honor?
‘ ‘ The court: And with the officers, yes. ’ ■’

It thus appears that after the submission of the case to the jury and after the jury had been placed in charge of officers of the court, but before it had entered upon its secret deliberations, the trial judge, the jurors, and the officers ate together. Nothing more appearing, was this conduct on the part of the trial judge prejudicial error? We do not believe so.

The mere statement of the facts is conclusive that the record affords no proof that anything was said or done by the judge in the presence of the jury which would have a tendency to affect its verdict. If prejudice is to be found it must be determined by the mere fact that the judge was with the jury, had opportunity to, and possibly did talk to them. In other words, that a presumption of prejudice arises when it appears that the trial judge was with the jurors after the case has finally been submitted to them. There are several cases wherein it has been held that it was prejudicial for a trial judge to talk to a juror under certain conditions which arose after the submission of the case and while the jury had it under consideration.

It has been held in Ohio that the holding of conversations by a jury, while in the jury room, with persons on the street, in regard to any subject of its deliberation, before the verdict is rendered, is, in general, good cause for setting aside the verdict. Farrer v. State, 2 Ohio St., 54. The prejudice in such irregular conduct on the part of the jury is particularly clear because the conversation related to the subject matter which the jury had under consideration and upon which it was required to pass its judgment.

In State v. Adams, 141 Ohio St., 423, 48 N. E. (2d), 861, 146 A. L. R., 509, it was held that the violation by a court officer in charge of the jury of Section 13448-1, General Code, in communicating with the jury, except in inquiring as to whether it had reached a verdict, raised a presumption of prejudice to the defendant. Section 13448-1, General Code, expressly provides that when a cause is finally submitted, the jurors must be kept together in a convenient place under the charge of an officer until they agree upon a verdict or are discharged by the court. ‘ ‘ Such officer or officers shall not permit a communication to be made to them, nor make any himself, except to ask if they have agreed upon a verdict, unless by order of the court * * It was appropriate that the court in State v. Adams, supra, should hold that a violation of this statute raised a presumption of prejudice, but there is no like statutory prohibition relating to the trial judge.

It has been the policy of the law, in the accord of “due process” to a defendant in a, criminal case, to require that the trial judge make no communication to the jury respecting the law of the case and its application to the facts, in the absence of the defendant and his counsel. The case which is most nearly an exception to this rule is Gandolfo v. State, 11 Ohio St., 114.

Here it must be noted that it is not suggested that anything was said to any juror respecting the facts or the law of the case. If the defendant had any reason to believe that he was prejudiced by the act of the trial judge he had the full right to take the affidavits or testimony of the jurors on the subject. As late as State v. Adams, supra, it was held that the rule that affidavits or testimony of jurors will not be received to impeach their verdict unless evidence aliunde of irregularity in the deliberations of the jury or in the return of a verdict is first shown has no application where such irregularity is due to the misconduct of an officer of the court. See, also, Emmert v. State, 127 Ohio St., 235, 187 N. E., 862, 90 A. L. R., 242. The same rule would pertain if the misconduct was on the part of the trial judge.

Actually, it does not appear that the trial judge in the instant case had any communication with the jurors and in that particular the case at bar may be distinguished from the several cases outside Ohio cited by the defendant. DuCate v. Town of Brighton, 133 Wis., 628, 114 N. W., 103; Hurst v. Webster Manufacturing Co., 128 Wis., 342, 107 N. W., 666; Kehrley v. Shaffer, 99 N. Y. Supr. (92 Hun), 196, 36 N. Y. Supp., 510, 3 N. Y. Ann. Cas., 19; Crabtree v. Hagenbaugh, 23 Ill., 349, 76 Am. Dec., 694. The one exception as to communication to the jury in the cited cases is Gibbons v. Van Alstyne, 9 N. Y. Supp., 156. In that ease the trial judge entered the jury room after submission of the cause, but it does not appear that any communication passed between him and the jury.

Section 13449-5, General Code, having application to criminal procedure, provides in part:

“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court * * * for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

That section of the Code alone would preclude this court holding that the action of the trial judge was prejudicial to the defendant. In McHugh v. State, 42 Ohio St., 154, it is said that a reviewing court regards the record as free from error until the contrary clearly appears.

Independent of the statute, it is highly improbable that the judge who presided throughout the trial— whose first concern was that the jury return a fair verdict, who controlled the deliberations with that purpose in mind, and who charged the jury that upon every separation it should not discuss the case with any person, nor permit' anyone to discuss the case in its presence while absent from the courtroom — would violate in the slightest degree the obligations which he had enjoined upon the jurors.

Although the action of the trial judge was unusual and, so far as we know, unprecedented, we are satisfied that it was not prejudicial to the cause of the defendant in any particular whatever.

The judgment of conviction and sentence of the defendant on the 9th count of the indictment is affirmed and the judgment is reversed as to the convictions and sentences under counts Nos. 10 and 14 for failure of proof of the offenses charged in such counts, and the cause is remanded for further proceedings according to law.

Judgment accordingly.

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


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    Maraldo, Appellee, v. Hendricks, Appellant.
    (No. 22089
    Decided March 19, 1951.)

      Messrs. McDermott é McDermott, for appellee.

      Messrs. Crossen <é Chamberlin, for appellant.
   Fess, J.

This is an appeal on questions of law from an order of the Common Pleas Court restraining defendant from prosecuting an action against the plaintiff in the Municipal Court of Cleveland, and ordering the Municipal Court case consolidated with the Common Pleas Court case.

Following an automobile collision, defendant herein instituted an action in the Municipal Court for property damages in the sum of $584.90 against the plaintiff herein. Plaintiff filed an answer and cross-petition for $50,350, to which cross-petition a demurrer was sustained. Thereafter, plaintiff instituted the instant action against the defendant to recover $50,350, in which the defendant filed an answer, but no cross-petition. Thereupon, plaintiff filed a motion to enjoin the prosecution by the defendant of the action in the Municipal Court pending final disposition of the instant case or, in the alternative, to consolidate the Municipal Court case with the instant case. From the order granting the motion, defendant appeals.

The Municipal Court duly acquired jurisdiction of the action instituted therein. It did not have jurisdiction of the counterclaim. Thereafter, the Common Pleas Court acquired jurisdiction of the parties and the subject matter of the claim previously set forth in the cross-petition filed in the Municipal Court. Since the conflicting claims of the respective parties arise out of the same transaction, they may properly be determined in the instant action if the defendant elects so to do. But, the Municipal Court having first acquired jurisdiction of the defendant’s action, can its limited jurisdiction be ousted by a court of general or unlimited jurisdiction? In State, ex rel. McHenry, v. Calhoun, Jr., 87 Ohio App., 1, 57 Ohio Law Abs., 12, the Court of Appeals denied a writ seeking’ to prohibit a justice of peace from heai’ing a property damage claim which could have been asserted as a counterclaim in another action between the same parties previously instituted in the Common Pleas Court, and held that the pendency of the action in the Common Pleas Court was not a bar to an action by the defendant in the justice court. Without determining the matter or expressing any opinion thereon, attention was directed to the note in 125 A. L. R., 337, discussing the right to enjoin the prosecution of actions in courts of limited jurisdiction because of the existence of counter rights beyond such limited jurisdiction. In this appeal we are confronted with the determination of that question.

The editor of the note in 125 A. L. R. states :

“It seems that it may be stated as a general proposition that where a person is sued in a court of limited jurisdiction upon a cause of action with respect to which he asserts a counterclaim arising out of the same transaction, in excess of the jurisdiction of the court in which he is sued, he may, pending the determination of his counterclaim in a court having jurisdiction thereof, enjoin the further prosecution of the action in the court of limited jurisdiction.”

The cases referred to in the note are from California and Georgia. Reference is made to the obiter in Allamong v. Falkenhof (1930), 39 Ohio App., 515, 177 N. E., 789, in which it was suggested that the court of limited jurisdiction might be enjoined from proceeding by the court of original jurisdiction. In most, if not all, of the California and Georgia cases cited, the action in the inferior court was enjoined in an independent action in equity setting forth equitable grounds for relief, and upon the granting of the injunction presumably a bond was furnished.

In addition to the cases mentioned in the'125 A. L. R. note, a number of others have been examined. In Order of Railway Conductors v. Gorman, 133 F. (2d), 273, it is said that the assertion of a setoff or counterclaim in excess of the jurisdiction of a court of limited jurisdiction will not oust the jurisdiction with respect to the claim asserted in the complaint which is within the jurisdiction of the court. Cited are Nelson v. Meyer, 66 Colo., 164, 180 P., 86; Jefferson Gardens v. Terzan, 216 Wis., 230, 257 N. W., 154; Sells v. Elmergreen, 183 Wis., 532, 198 N. W., 267.

Sanders v. Brooks, 238 Mo. App., 485, 183 8. W. (2d), 353, holds that where a defendant in a justice court has an equitable defense over which the justice has no jurisdiction, the proper remedy is to institute a separate suit in equity and have the proceeding in the justice court stayed until the rights are determined by the court of equity.

In New Jersey, if a counterclaim exceeds the limited jurisdiction, a statute authorizes the transfer of the action to the court having general jurisdiction. Broad & Branford Place Corp. v. J. J. Hockenjos Co., 132 N. J. L., 229, 39 A. (2d), 80.

In Centennial Flouring Mills Co. v. Schneider, 16 Wash. (2d), 159, 132 P. (2d), 995, the denial of an injunction was affirmed on the ground that, where the nature of a plaintiff’s claim is such that the defendant’s affirmative matter cannot be properly pleaded because it is in excess of the jurisdiction of an inferior court, judgment therein would not preclude the defendant from bringing a separate action. Allamong v. Falkenhof, supra, is referred to in the opinion.

See, also, 2525 7th Ave. Corp. v. Knight, 260 App. Div., 733, 23 N. Y. Supp. (2d), 435, commenting on Silberstein v. Begun, 232 N. Y., 319, 133 N. E., 904.

In the instant case, plaintiff instituted his action at law for damages, and thereafter the motion for injunction was granted without bond.

During argument, defendant waived any error incident to the failure to require or give bond. Quaere: Could defendant be adjudged in contempt in case he proceeded with his original action? Cf. In re Cattell, 146 Ohio St., 112, 64 N. E. (2d), 416. “

As pointed out by McNamee, J., in the Calhoun case, supra, as between courts of concurrent jurisdiction, the one whose power is first invoked acquires the right to adjudicate the controversy to the exclusion of other tribunals, but the rule has no application where the conflict of jurisdiction is between a court of general jurisdiction and one of limited jurisdiction whose powers are inadequate to afford full relief.

The general rule that a defendant must set up every defense or defenses or be deemed to have waived them does not apply to a counterclaim. Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Swensen v. Cresop, 28 Ohio St., 668; Witte v. Lockwood, 39 Ohio St., 141. A defendant may reserve his counterclaim and sue on it in a separate action. 36 Ohio Jurisprudence, 580, Section 92; 8 A. L. R., 634. In effect, the order attempting to consolidate the actions compels the defendant to assert his claim for property damage in the instant case when he prefers to pursue it in the Municipal Court.

The jurisdiction of the Municipal Court is unaffected by the pendency of the action in the Common Pleas Court. Each court has jurisdiction of the separate causes. The underlying policy of the Code is to avoid a multiplicity of actions and to provide a forum in which all causes of action arising out of the same transaction may be determined in a single action, but a party nevertheless may choose his own forum. In this' case, defendant chose the Municipal Court and plaintiff chose the Common Pleas Court. Without deciding that in an appropriate independent action in equity in the interest of avoiding a multiplicity of suits and the determination of all conflicting claims in one action an injunction may issue to stay the prosecution of a cause of action in a court of limited jurisdiction, we hold (1) that the court erred in ordering the cases consolidated; and (2) that the court erred in restraining the defendant from prosecuting his action in the Municipal Court.

The judgment is reversed and the cause is remanded with directions to dissolve the injunction and overrule the motion therefor and for further proceedings.

Judgment reversed and cause remanded.

Carpenter, P. J., and Conn, J., concur.

Carpenter, P. J., Fess and Conn, JJ., of the Sixth Appellate District, sitting by designation in the Eighth Appellate District.


author: Griffith, J.

text:
    Snodgrass, Exr., Appellee, v. Snodgrass et al., Appellants.

      (No. 865
    Decided April 2, 1951.)

      Mr. Frank T. Kerr, for appellee.

      Mr. Robert J. Sanborn and Messrs. Thornburg & Lewis, for appellants.
   Griffith, J.

This appeal is from a judgment in an action to construe the will of George B. Clifford, late a resident of Belmont county, who died on the 18th day of October 1946.

The particular issue is the meaning of the clause, “also all of my personal property and personal effects, such as furniture, household goods and jewelry,” under all the circumstances surrounding this case.

The will provided as follows:

Item I directed payment of debts and funeral expenses, etc.
“Item II: I give, bequeath, and devise to my stepdaughter, Ethel Snodgrass, and to her son, Clifford Duff, in equal shares, 20 acres of land which I now own, located in Jim Wells county, Texas; also my interest in the royalty from 240 acres of land in New Mexico; also all of my personal property and personal effects, such as furniture, household goods and jewelry. (Emphasis added.)
“As said Clifford Duff is now a member of the armed forces of the United States, in the event that he does not survive me or dies during' the settlement of my estate, his interest under the provisions of the first paragraph of this item shall pass to and vest in his mother, Ethel Snodgrass, absolutely and in fee simple.
“Item III: After the provisions of item I and item II above have been complied with, I direct that my executors, hereinafter named, shall, in their discretion and so as not to dispose of any part of my estate at a sacrifice price, convert the remainder of my estate into money, and out of the residue and remainder of my said estate, I give and bequeath to my said stepdaughter, Ethel Snodgrass, the 4/22 part of said residue and remainder; to said Clifford Duff the 4/22 part of said residue and remainder; and to my brother, Robert Clifford, the 6/22 part of said residue and remainder; to my sister, Phoebe Pickett, the 4/22 part of said residue and remainder; and to my brother, Joseph Clifford, the 4/22 part of said residue and remainder. ’ ’

The will was executed on the 15th day of November 1944.

The inventory filed in the Probate Court lists the following property owned by testator at the time of his death:

1938 Plymouth 4-door sedan $ 350.00
200 Shares Brilliant Sand Co. stock 12,000.00
2 Shares Shaw Oil Corporation stock 1.00
Brilliant Bank and Savings Co. Checking account 1,261.01
John Hancock .Mutual Life Ins. Co. Policies 3,869.35
Several parcels of real estate in Martins Perry, Ohio 7,000.00
20 acres, situated in Jim Wells County, Texas 600.00
Total $25,081.36

From the inventory it is to be observed that the estate consisted of both real and personal property, real property of the appraised value of $7,600, and personal property of the appraised value of $17,481.36.

The important items of personal property now in controversy consist of 200 shares of stock in the Brilliant Sand Company, a checking account in the Brilliant Bank & Savings Company, the proceeds of insurance policies, and an automobile.

Do these items pass under the provisions of the last clause of the first paragraph of item II of the will?

It will be noted that the first paragraph of item II is divided into three parts. The first disposes of 20 acres of land in Jim "Wells county, Texas, and is followed by a semicolon; the second disposes of the royalty from 240 acres of land in New Mexico, and is also followed by a semicolon; the third is, ‘ ‘ all of my personal property and personal effects, such as furniture, household goods and jewelry.” The three parts of this item are distinctly separated by semicolons.

“The cardinal rule in the construction of wills to which all others must bend is that the intention of the testator as expressed in the will shall prevail.” Child, Admr., v. Orton, 119 N. J. Eq., 438, 183 A., 709. See, also, Trustees of Princeton University v. Wilson, 78 N. J. Eq., 1, 78 A., 393.

George B. Clifford, in item II, after devising 20 acres of land in Jim Wells county, Texas, and his interest in the royalty from 240 acres of land in New Mexico, bequeathed “all of my personal property and personal effects, such as furniture, household goods and jewelry.”

The word, “effects,” is a broad term. Used alone, it has been said to be synonymous with “worldly substance. ’ ’ In conjunction with the words, ‘ ‘ goods, chattels,” it usually means all personal property, and under some circumstances it has been held to include real estate as well. Used with some other words, its meaning is mueli restricted; for example, when used in the expression, “household furniture and effects,” the word, ‘ ‘ effects, ’ ’ is limited to household goods. The word, “personal,” used with “effects” much restricts its meaning. In common understanding, the expression, “personal effects,” without qualifying words, includes only such tangible property as attends the person, or, as variously stated, such property as is worn or carried about the person, or goods and items of property having a more or less intimate relation to the person, or personal luggage as distinguished from merchandise. Child, Admr., v. Orton, supra.

A leading case touching the interpretation of “personal effects,” as used in a will, is Estate of Lippincott, 173 Pa., 368, 34 A., 58, in which the Supreme Court of Pennsylvania held that “personal effects,” as used in a will bequeathing to a certain person all testator’s jewelry, wearing apparel, and personal effects, mean articles similar in kind to jewelry and wearing apparel and cannot embrace household furniture.

Effects, when preceded or followed by words, of a narrower import, if the bequest is not residuary, will be confined to species of property ejusdem generis with those previously described.

What bearing do the words, “and personal effects, such as furniture, household goods and jewelry,” have upon the phrase, “personal property”? Do they cut down the meaning of “personal property” and limit the property passing thereby to items of furniture, household goods and jewelry owned by the decedent at the time of his death?

If so, then all other items of personal property owned by the decedent pass under the residuary clause of his will.

The term, “personal effects,” is used in conjunction with “all my personal property,” and the words, “such as furniture, household goods and jewelry,” refer to “personal property” as well as “personal effects.”

A bequest of personal property includes every form of personal property from whatever source it may be derived, that is, everything except real property.

“A gift of personal property in general terms together with an enumeration of certain classes of personal property is generally held to be limited to articles of the classes which are enumerated specifically.” 3 Page on Wills (Lifetime Ed.), 44, Section 964; 57 American Jurisprudence, 888, Section 1339; 41 Ohio Jurisprudence, 659, Section 537.

The leading case in Ohio pronouncing this rule is that of Creamer, Exr., v. Harris (1914), 90 Ohio St., 160, 106 N. E., 967, L. R. A. 19150, 653.

In that case, the testator bequeathed several items of personal property to one Sadie Harris and among other things bequeathed “one bureau and contents.” After the testator’s death it was found that the bureau in question contained in money the sum of $320, and the legatee contended that this amount of money passed under the above provision of the will.

The court held that the money contents of the bureau passed to the legatees mentioned in the residuary clause of the will. The syllabus in that case states:

“1. In the construction of wills a presumption prevails, especially in items not residuary, that where a more general description is coupled with an enumeration of things, the description shall cover only things ejusdem generis.
‘‘2. This, however, is only a rule of presumption and must yield to the testator’s intent as gathered from the whole instrument, but where the presumption is favored and supported by the evident intention of the testator as developed from a consideration of all the parts of the instrument, then such rule of presumption should be applied to the matter in question. ’ ’

In 41 Ohio Jurisprudence, 659, Section 537, we find the following:

“In the construction of wills a presumption prevails that where a more general description is coupled with an enumeration of things, the description shall cover only things ejusdem generis with the. particular things mentioned. The reason for the rule is that the adoption of the more comprehensive meaning would have the effect of rendering the super added expression nugatory, and would deprive the additional language of any additional meaning. The presumption prevails especially in items not residuary.”

In the instant ease, the testator made the following provision :

“I give, bequeath and devise * * * 20 acres of land * * * in Jim Wells county, Texas [value as appraised, $600]; interest in the royalty from 240 acres of land in New Mexico [appraisal apparently $1]; also all of my personal property and personal effects, such as furniture, household goods and jewelry.”

In the body of the opinion in the Creamer case, at pages 164 and 165, it is stated:

“Consulting some of the leading text writers on will construction, we find it to be an established course of interpretation that it is a rule of presumption, especially in clauses not residuary, that where a more general description is coupled with an enumeration of things, the description shall cover only things of the same kind; and doubtless words of a general description may, by due regard to the context, be considered as limited by an attempt at particular description. ’ ’

By item II in the will, did George B. Clifford intend to include $12,000 worth of stock, a checking account of more than $1,200, benefits of life insurance policies of nearly $4,000, and an ancient automobile — bearing in mind that he did specifically name and describe in the main body of this item II the 20 acres of land in Texas of a value of only $600, and that he specifically mentioned his interest in the royalty from 240 acres of land in New Mexico, of small value, and then proceeded in the item with “also all of my personal property and personal effects,. such as furniture, household goods and jewelry”?

The general description, “all of my personal property,” is coupled with “and personal effects, such as furniture, household goods and jewelry,” and the general description covers only such things of the same kind; the general description is cut down and limited by the attempt at this particular description. The doctrine of ejusdem generis — of the same kind or specie- — -applies in this case.

The residuary clause directs that the residue be converted into money.

The inventory discloses that the single item of greatest value was the stock in the Brilliant Sand Company; the item of next highest value embraced several parcels of real estate in Martins Perry. These two items comprised three-fourths of the entire estate.

True it is that many of the leading authorities, where the rule of ejusdem generis is applied, are cases involving contents “in a house,” “in a bureau,” “in a box,” or similar references. True it is that, in the instant case, the checking account and the proceeds of the insurance policies are in money without any conversion necessary on the part of the executor, but does that indicate an intention on the part of the testator that the $12,000 in stock was not to be converted into money but was intended to pass under the provision of “my personal property and personal effects, such as furniture, household goods and jewelry”?

If George B. Clifford intended to embrace these 200 shares of stock, the checking account, and the insurance money in his bequest of ‘‘ all of my personal property and personal effects, such as furniture, household goods and jewelry,” why would he not have mentioned them, since they had such large value, whereas the “personal effects, such as furniture, household goods and jewelry” had apparently a mere nominal value?

We do not believe that he wished to bequeath his 200-shares of stock and other personal property in the inventory in this manner. We are of the opinion that the language used by the testator in item II acted only to pass personal effects, such as furniture, household goods and jewelry, and did not bequeath other items of personal property.

This conclusion is all the more compelling since the will contained an effective residuary clause, and because of the language in the residuary clause, and by following the almost unanimous decisions applying the rule of ejusdem generis.

The personal property listed in the inventory should pass under the residuary clause of the will of George B. Clifford.

Judgment reversed.

Nichols, P. J., and Phillips, J., concur.


author: Carpenter, J.

text:
    Cousino, Appellant, v. Cousino, Appellee.

      (No. 4527
    Decided March 26, 1951.)

      Mr. Virgil E. Clark, for appellant.

      Mr. Stephen Fasekas, for appellee.
   Carpenter, J.

The parties to this action were married in 1928, and four children were born to them.

This action was instituted in 1947 for alimony, custody and support of the four children, and to enjoin the defendant from “harming or molesting” plaintiff. The grounds were habitual drunkenness and gross neglect of duty. At the time of the hearing, one child was married and the other three were minors living at home. Three motions for temporary alimony and support for the children were filed and orders made on them, but none was to any extent obeyed.

On August 1, 1949, an amended petition was filed charging habitual drunkenness, gross neglect of duty and extreme cruelty. The prayer was for divorce, custody and support of the children and that defendant’s interest in the home, owned jointly by the parties, and his interest in the estate of his deceased father, then being administered, be awarded to plaintiff.

Defendant answered admitting the marriage and denying all other allegations. On hearing of the cause, the court found that the parties “were living in the same home at the time this cause came on to be heard, ’ ’ and dismissed the petition and amended petition “on authority of the Smith case,” meaning Smith v. Smith, 86 Ohio App., 479, 92 N. E. (2d), 418.

This appeal on questions of law from that judgment was perfected by plaintiff.

The testimony of the plaintiff and 'of her corroborating witness, a relative by marriage of the defendant, was that defendant drank heavily during practically all their married life, was intoxicated a great deal of the time, and spent much of his earnings for liquor. In a large measure, this was admitted by defendant. Plaintiff worked and with her earnings supported the family. She purchased for $1,500, the home where the family lived, and repaired and improved it until it is now a fair home. Defendant testified that his wife worked and that she was a “saver.”

Both parties testified that for some years they have occupied separate rooms in the house, she with some of the children. She denied that they had had sex relations while the action was pending. He said that they had had such relations within three weeks of the hearing, which was in July 1950, and in the previous January, after she had purchased a Plymouth automobile for him to use. These are the only times he mentioned that subject.

At the close of all the evidence and before entering judgment, the court commented on the evidence, particularly that relative to the parties continuing to live in the same house during the pendency of the action. The court did not state what its conclusion was on the question of sex relations. In fact that matter was not taken seriously, and well it might not be in a determination of which of these parties was to be believed.

The real legal question is whether the plaintiff, by her conduct, condoned the alleged acts of aggression of the defendant. It is generally accepted that continuation of sex relations operates as condonation and is a defense to an action for divorce or alimony. As a defense it should be pleaded. This was not done by defendant in this action. No finding on the subject of condonation was made by the court, nor was the subject mentioned either in its discussion of the evidence or in the journal entry. In the entry the only conclusion of fact adverse to plaintiff was that the parties “were living in the same home at the time this cause came on to be heard.”

The Smith case, supra, on which the court relied, was an action for alimony. In it there was a statement by the plaintiff, in a motion to dismiss the cross-petition, that the parties had “cohabited together in the same home and in the same bed, during all of the time that said cross-petition has been pending in this court.” The conclusion in that case that they were not living “separate and apart” was correct and it was obvious that the plaintiff had condoned the alleged acts of aggression.

The statutes on divorce and alimony, Sections 11979 to 12003, General Code (now Sections 8003-1 to 8003-23, General Code), nowhere spoke on this subject. The nearest to it was Section 11997 (now Section 8003-18, General Code), which stated the grounds for an allowance of alimony and in subdivision four provided ‘ ‘ that there is a separation in consequence of ill treatment on the part of the husband * * *.” The courts have said that the parties must live “separate and apart” during the pendency of the action, but, except for a statement in Smith v. Smith, supra, it has not been said that they can not do that within the family home. It was the experience of the writer when a trial judge that where there were several children it was sometimes an economic necessity for their support that the home shelter both parents.

On this state of the record, the judgment was manifestly against the weight of the evidence and it is, therefore, reversed and the cause remanded for a new trial.

Judgment reversed.

Fess and Conn, JJ., concur.


author: Thompson, J.

text:
    Ermakora, Appellee, v. Daillakis; Dearborn National Casualty Co., Appellant.
    (No. 22199
    Decided October 22, 1951.)

      Mr. Malvern E. Schulte, for appellee.

      Mr. J. R. Kistner, for appellant.
   Thompson, J.

This case has been appealed to this court on a question of law from a judgment of the Common Pleas Court.

Plaintiff originally commenced an action against one Daillakis for injuries allegedly sustained when hit by an automobile operated by Daillakis. Plaintiff recovered a judgment against Daillakis in the sum of $2,000 in the Common Pleas Court. This judgment not having been satisfied within thirty da;^s after the date when it was rendered, and Daillakis being covered by liability insurance, plaintiff, proceeding under Sections 9510-3 and 9510-4, General Code, thereupon filed a supplemental petition in the Common Pleas Court in the same action in which the judgment was rendered, making the insurance company a new party defendant. It may be observed that Sections 9510-3 and 9510-4, General Code, provide in part as follows:

“Section 9510-3. In respect to every contract of insurance made between an insurance company and any person, firm or corporation by which such person, firm or corporation is insured against loss or damage on account of the bodily injury or death by accident of any person for which loss or damage such person, firm or corporation is responsible, whenever a loss or damage occurs on account of a casualty covered by such contract of insurance, the liability of the insurance company shall become absolute, and the payment of said loss shall not depend upon the satisfaction by the assured of a final judgment against Mm for loss, or damage or death occasioned by such casualty * *
“Section 9510-4. Upon the recovery of a final judgment against any firm, person or corporation by any person, including administrators and executors, for loss or damage on account of bodily injury or death, * * * if the defendant in such action was insured against loss or damage at the time when the rights of action arose, the judgment creditor or his successor in interest shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor or his successor in interest, to reach and apply the insurance money to the satisfaction of the judgment, may file in the action in which said judgment was rendered, a supplemental petition wherein the insurer is made new party defendant in said action, and whereon service of summons upon the insurer shall be made and returned as in the commencement of an action at law. Thereafter the action shall proceed as to the insurer as in an original action at law. ’ ’

For convenience, the plaintiff in the trial court, appellee in this court, will be referred to as plaintiff, and the insurance company, defendant in the supplemental petition, appellant in this court, will be referred to as the insurance company. Trial was had in the Common Pleas Court and judgment was rendered in favor of plaintiff and against the insurance company.

Counsel agree that the sole question before this court is whether there has been such breach of the condition of the insurance policy, requiring co-operation of the insured, as to release the insurance company. Briefs of counsel cite the language of the insurance policy of Daillakis as controlling the question before us. The language is as follows:

“12. Assistance and Co-operation of the Insured:
‘ ‘ Coverages A, B, C, D, E, F, G, H, I and J. The insured shall co-operate with the company and, upon the company’s request, shall attend hearings, and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits, the insured shall not, except at his own cost, voluntarily make any payment, assume any obligation, or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident. ’ ’

The insurance policy was introduced in evidence in the trial court and is attached to the bill of exceptions as plaintiff’s exhibit A. We direct attention to coverage A, whereby the insurance company agrees “to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon the insured by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons other than the insured, caused by accident and arising out of the ownership, maintenance or use of the automobile. ’ ’

Before discussing the language of the insurance policy, facts recited in the pleadings (the supplemental petition of plaintiff in the trial court, the separate amended answer of the insurance company and the reply of plaintiff) and the evidence in the trial court become important.

Plaintiff’s supplemental petition, filed pursuant to Section 9510-4, General Code, recited facts of his personal injuries and his recovery of judgment for $2,000, and further alleged that, prior to and on the date of the accident, there was in full force and effect an automobile insurance policy covering the operation of the automobile owned and operated by Daillakis, issued by defendant insurance company. Plaintiff recited further that the judgment against Daillakis had become final and was unsatisfied and that, more than thirty days having elapsed since the rendition of the • judgment, plaintiff made demand on the insurance company to pay the judgment and that the demand was refused. Plaintiff alleged further that he was entitled to have the insurance money under the policy applied to the satisfaction of his judgment against Daillakis.

The insurance company filed an answer and subsequently a separate amended answer admitting that on September 3, 1948, there was in full force and effect a policy of liability insurance of the insurance company issued to Daillakis with respect to any liability imposed by law upon the insured for damages because of bodily injury arising out of the ownership and use of the automobile of Daillakis. Further answering, the insurance company denied all of the allegations of the supplemental petition.

Although other defenses in addition to a general denial were pleaded, the only one asserted in this court is violation by the assured of the condition of the insurance policy with respect to co-operation.

The bill of exceptions sets forth the evidence before the trial court on this subject. The only witness called at the trial on the supplemental petition was plaintiff’s attorney, Mr. Schultz.

The testimony discloses that at the time of the accident, the assured, in a policy report, gave his address as “6304 Lexington avenue, Cleveland, Ohio.” Six days later, on September 9, 1948, plaintiff’s attorney addressed a letter to the assured at 6304 Lexington avenue, concerning the injuries and claims of his client. No answer having been received, Mr Schultz, the attorney for plaintiff, checked the city directory and noted that the individual living in the house at the address in question was shown to be one Kariotakis. He therefore wrote to Kariotakis, under date of October 7, 1948, the letter sent being identical with the letter previously addressed to Daillakis except as to salutation. Plaintiff’s attorney testified that a few days later he received a telephone call from a man who said he was Daillakis and who stated over the telephone, “You sent the letter to the wrong place * * *. I live at 9014 Lexington avenue but not at 6304.” Plaintiff’s attorney said that the main thing he wanted was to discuss the accident, and the man talking over the telephone agreed to come to his office a few days later. No one ever came to see Schultz, so the latter, on January 21, 1949, filed a petition together with a praecipe for summons to .Daillakis at 9014 Lexington avenue, this being the address mentioned in the telephone conversation. Schultz further testified that, after waiting a reasonable length of time for service by the sheriff, he checked with the sheriff’s office and learned that no service had been obtained upon Daillakis and the office reported there was no such address as 9014 Lexington avenue. Schultz then testified that he made further investigation to locate the address of Daillakis, inquiring through friends in the Greek colony in Cleveland. He learned that Daillakis had been keeping company with a woman, had planned to marry her, and that then, shortly prior to the accident, the two had quarreled. Testifying as to his investigation, Schultz stated: “The theory was that he had left town, that this Daillakis had left town as a result of this quarrel, or whether the automobile accident had anything to do with his leaving town or not, I am not so sure. I am not even sure that this was Daillakis that called me up. It may have been some other Greek covering up for him.”

Plaintiff’s attorney, testifying further in the hearing on the supplemental petition, said that shortly after the accident, having learned that Daillakis had insurance, he had telephoned Andrew Strok, the agent admittedly representing the defendant insurance company with offices in the Williamson building. The latter asked Schultz to telephone Mr. R. S. Lewis, declaring: “He is the attorney that represents these matters for us.” Schultz testified that he then telephoned Lewis, and, under date of October 12,1948, confirmed by letter the fact that he represented plaintiff. On October 20, 1948, Schultz received a letter signed by Lewis on the letterhead of The Automobile Inspection & Adjustment Company, 502 Newman-Stern Building, 1740 East 12th street, Cleveland, Ohio, in which was enclosed an attending physician’s report blank. Schultz was asked to have his client’s attending physician complete and return the form. Under date of October 25, 1948, plaintiff’s attorney talked by telephone with the office of The Automobile Inspection & Adjustment Company and, upon being told that he must submit the completed medical report, he thereupon, on October 27, 1948, sent a letter to the hospital to obtain further information. On January 10, 1949, Schultz had another talk with the adjustment office. On February 17, 1949, Schultz talked with the adjustment office concerning a settlement of the case, having previously forwarded to that office a copy of the petition when he instituted suit on January 21, 1949.

On March 10, 1949, Schultz called at the adjustment company’s office and talked with Mr. Hyland and delivered a copy of the medical report narrating his client’s injuries, and settlement was again discussed. On July 13, 1949, Schultz had a telephone talk with the representative of the insurance company and a small offer of settlement w~as made at or about that time. Schultz testified that on August 9, 1949, he issued an alias summons and arranged for service on Daillakis through the Secretary of State. He also informed Hyland of the adjustment company’s office of what he was doing. Under date of September 1, 1949, plaintiff’s attorney received a copy of the sheriff’s return from Franklin county showing service on Daillakis through the Secretary of State.

On September 30, 1949, the case against Daillakis came on for trial, and it was postponed to October 5th for medical testimony. On October 10, 1949, the trial court upon hearing the testimony rendered judgment for $2,000 against Daillakis. Schultz testified that he immediately'called the adjustment company’s office, informing Hyland that he had obtained a judgment against Daillakis. Plaintiff’s attorney thereupon, at the expiration of thirty days, filed the supplemental petition against the insurance company which is here involved. Trial on the supplemental petition took place on March 15, 1951. The sole witness for plaintiff was his attorney, who narrated to the court his efforts to reach Daillakis and his conferences with the insurance company hereinbefore noted. On cross-examination by the insurance company’s attorney, Schultz stated that in his investigation he found no evidence of any collusion between plaintiff and defendant, Daillakis, and no evidence of collusion between Daillakis and the insurance company. Upon termination of the cross-examination of Schultz by the attorney for the insurance company, plaintiff rested. The insurance company having thereupon moved for judgment in its favor, the court overruled the motion, and defendant rested without calling any witnesses in its own behalf.

The detailed statement of facts here set forth and summarized from the bill of exceptions has been made necessary because of the issue raised by the parties with respect to the co-operation clause of the insurance policy and its effect on the ultimate question of the liability of the insurance company.

At the outset it should be stated that the construction of Sections 9510-3 and 9510-4, General Code, is no longer in doubt, in view of the long line of Ohio cases in which these sections have been discussed by our Ohio Supreme Court. The leading case declaring the meaning and validity of these sections is Stacey v. Fidelity & Casualty Co. of New York, 114 Ohio St., 633, 151 N. E., 718, and in numerous subsequent decisions the Supreme Court has further defined various aspects of these statutes. See State Automobile Mutual Ins. Assn, of Columbus v. Friedman, 122 Ohio St., 334, 171 N. E., 591; State Automobile Mutual Ins. Assn. v. Lind, 122 Ohio St., 500, 172 N. E., 361; Hartford Accident & Indemnity Co. v. Randall, 125 Ohio St., 581, 183 N. E., 433; Luntz, Exr., v. Stern, 135 Ohio St., 225, 20 N. E. (2d), 241; Conold v. Stern, 138 Ohio St., 352, 35 N. E. (2d), 133, 137 A. L. R., 1003; Miller v. Jones, 140 Ohio St., 408, 45 N. E. (2d), 106; In re Estate of Basmajian, 142 Ohio St., 483, 52 N. E. (2d), 985; Hendershot v. Ferkel, 144 Ohio St., 112, 56 N. E. (2d), 205; Hendershot v. Ferkel, 147 Ohio St., 111, 68 N. E. (2d), 67; Conner v. Miller, 154 Ohio St., 313, 96 N. E. (2d), 13. These sections are not unique to Ohio. The Massachusetts statute, from which the Ohio statute was taken practically verbatim, was analyzed and upheld in Lorando v. Gethro, 228 Mass., 181, 117 N. E., 185, 1 A. L. R., 1374. Similar statutes are found in a number of other states. On this point, see an excellent note by Robert C. Grisanti in 22 Ohio Opinions, 77, at page 80.

In Luntz v. Stern, supra, the Ohio Supreme Court held that by the provisions of Section 9510-4, General Code, a judgment creditor is entitled to a direct action against the insurance company after obtaining a judgment against the assured and after the lapse of thirty days after judgment is rendered, provided that any valid conditions or requirements in the contract of insurance which would be binding upon the assured are likewise binding upon such judgment creditor. In Miller v. Jones, supra, it was held that the failure of an assured to comply with the provisions of a policy of liability insurance requiring the co-operation of the assured in the preparation and trial of any claim or suit against him, and forbidding him to make settlement thereof except at his own cost without the written authorization of the insurer, constituted a good and valid defense in a supplemental proceeding to recover from the insurer pursuant to the provisions of Section 9510-4, General Code. To similar effect, note Conold v. Stern, supra, wherein Judge Hart pointed out (page 358) that while Section 9510-4, General Code, provides “that an injured person may, by supplemental petition, proceed against the insurance company after judgment is obtained against the insured who was responsible for the injury, this must be interpreted to mean that such right is subject to the limitations and conditions of the insurance contract entered into between the insurance company and the insurer, including conditions subsequent to be performed by the insured after an injury covered by the policy occurs, which conditions become conditions precedent to a right of action on the policy.” (Emphasis added.)

. Attention is further directed to the analysis of such a situation by Judge Hart, at page 359, as follows:

“A clause in an insurance policy requiring the insured’s co-operation, aid and assistance in a defense of an action against him is a material condition of the policy, the 'violation of which by the insured forfeits his rights to claim indemnity under the policy. It is a condition precedent, failure to perform which, in the absence of waiver or estoppel, constitutes a defense to liability on the policy. Stacey v. Fidelity & Casualty Co. of New York, supra; Royal Indemnity Co. v. Morris, 37 F. (2d), 90, certiorari denied, Morris v. Royal Indemnity Co., 281 U. S., 748, 74 L. Ed., 1160, 50 S. Ct., 353; Bachhuber v. Boosalis, 200 Wis., 574, 229 N. W., 117; Metropolitan Casualty Ins. Co. v. Blue, 219 Ala., 37, 121 So., 25; Guerin v. Indemnity Ins. Co. of North America, 107 Conn., 649, 142 A., 268; Coleman v. New Amsterdam Casualty Co., 247 N. Y., 271, 160 N. E., 367, 72 A. L. R., 1443.
“And the insured’s failure to comply with the cooperation clause in his indemnity insurance policy constitutes a good defense to his insurer as against a person injured by the fault of the insured, seeking, under and by virtue of the statutes in question, to recover against the insurer for his injury. ’ ’

It seems that in the light of past decisions interpreting Sections 9510-3 and 9510-4, General Code, the only question for decision by this court is whether the defense of lack of co-operation by the assured set out in the insurance company’s answer is an affirmative defense to be established by defendant or whether, under the pleadings, this defense having been first raised by defendant, the matter of co-operation becomes an essential element of plaintiff’s case to be proved by plaintiff.

The burden of proof in establishing lack of cooperation by the assured in a suit by the judgment creditor against the insurance company, under statutes similar to Section 9510-4, General Code, is discussed in an annotation in 72 A. L. R., 1446, entitled: “Liability insurance: Clause requiring assured’s cooperation, aid and (or) assistance.” At page 1453 under subdivision IY of the foregoing annotation with respect to burden of proof, it is declared as follows:

“Defense on the ground of the assured’s violation of co-operation clause is an affirmative one on which insurer carries the burden of proof. United States Fidelity & G. Co. v. Remond (1930), — Ala. —, 129 So., 15; Francis v. London Guarantee & Acci. Co. (1927), 100 Vt., 425, 138 Atl., 780. Somewhat differently stated, there rests upon insurer the burden of proving the facts alleged and relied upon by it as constituting a breach of the clause. Cowell v. Employers’ Indem. Corp. (1930), — Mo. App. —, 34 S. W. (2d), 705. A lack of good faith, where relied upon as a ground of defense, must be proved. Conroy v. Commercial Casualty Ins. Co. (1928), 292 Pa., 219, 140 Atl., 905— citing Roth v. National Auto. Mut. Casualty Co. (1922), 202 App. Div., 667, 195 N, Y. Supp,, 865 (appeal dismissed without opinion in [1923] 235 N. Y., 605, 139 N. E., 752), infra, subd. Y. v.
“The foregoing rule, or rules, is so little subject to debate as to need no further citation of cases.”

See further and more recent annotations on the same subject in 98 A. L. R., 1465, at page 1468, and 139 A. L. R., 771, at page 777. The latter annotation declares as follows:

“As stated in the earlier annotations, it is generally held that an assured’s breach of the co-operation clause, being an affirmative defense, is one on which the insurer carries the burden of proof.”

That.the foregoing statements represent the general law, see the following in 46 Corpus Juris Secundum, 458, Insurance, Section 1321f:

“Ordinarily, and sometimes under statute, insured’s violation of the ‘co-operation clause’ of a liability policy is regarded as an affirmative defense which the insurance company has the burden of proving. ’ ’

Attention is also called to the article on “Insurance” in 22 Ohio Jurisprudence, 854, Section 759, as follows:

“Matters of Defense, Conditions Subsequent, and Exceptions. — As a general rule, one suing on a policy of insurance need not aver in his petition any facts which are matters of defense, such as noncompliance with conditions subsequent and excepted risks. * * * Nor need conditions subsequent that are matters of defense be proven in chief or alleged in the petition, especially as the plaintiff may not be advised which condition subsequent the insurance company claims was violated. So, provisions in a policy that it shall become void, or inoperative, or that the insurer shall be relieved wholly or partially from liability, upon the happening of some event, or the doing or omission to do some act, are matters of defense, and to be available must be pleaded, and their breach alleged, by the defendant.”

See, also, the following in Benoy’s Ohio Insurance and Negligence Law (2 Ed.), 355, Section 699:

Conditions subsequent, such as conditions that provide that a policy shall become void, or inoperative, or the insurer relieved wholly or partially from liability, upon the happening of some event or doing, or omission to do some act, are matters of defense, and to be availed of, the insurance company has the burden of proving a breach thereof. That is, the burden is on the defense to prove the breach of conditions by affirmative evidence.”

The Ohio cases under Section 9510-4, General Code, are in line with the general law that the co-operation clause in a liability insurance policy constitutes a good defense to the insurer as against a party injured by fault of the insured seeking to recover against the insurer and that the burden of sustaining the affirmative defense that the co-operation clause has been violated rests with the defendant as it does in the case of other affirmative defenses.

Two cases decided by this court have discussed conditions subsequent in actions under Section 9510-4, General Code, involving insurance policies. In State Auto. Mutual Ins. Assn. v. Friedman, 34 Ohio App., 551, 171 N. E., 419 (affirmed 122 Ohio St., 334, 171 N. E., 591), it was held in the fifth paragraph of the syllabus that conditions precedent must be proved by a plaintiff who seeks to recover on an insurance policy, but not conditions subsequent.

In another case decided by this court, Medical Protective Co. v. Light, Admx., 48 Ohio App., 508, 194 N. E., 446 (motion to certify overruled January 16, 1935), an action was brought by an administratrix to recover in a malpractice action for alleged negligent treatment of plaintiff’s decedent. A judgment was obtained against the doctor and action was then brought by supplemental petition against the insurance company. The insurance company set forth, in its answer an alleged breach of the insurance policy with respect to attendance upon the trial and co-operation by the doctor. Under the terms of the policy, the assured had agreed to “attend, assist and co-operate in the preparation and defense of any claim or suit.” This court, at page 514, made the following comment:

“* * * If the company is to avoid liability it would be merely upon the ground that the assured * * * was guilty of a breach of a condition subsequent.”

Upon review of the evidence, the court affirmed the trial court’s judgment that the evidence failed to establish a breach of the condition subsequent.

See, also, Wasserman, a Minor, v. Zurich General Accident & Liability Ins. Co., Ltd., 39 Ohio App., 33, 177 N. E., 45, affirmed in 124 Ohio St., 649, 181 N. E., 884.

The California statute provides that when a judgment is obtained against the assured in an action brought by the injured person, an action may be brought against the insurer on the policy “subject to its terms and limitations” by such judgment creditor. Deering’s California Codes (1950), Insurance, Section 11580. A federal case involving such an action is Western Casualty & Surety Co. v. Weimar (C. C. A. 9, 1938), 96 F. (2d), 635. In its answer, the company set up the affirmative defenses that the assured had voluntarily assumed liability to plaintiff and had failed to co-operate with the company in the defense of the suit brought against him. The court, at page 636, declared :

* * Either of these defenses, if sustained by proof, would exculpate the company from liability under condition (C) of the policy * * *. The requirements imposed by the quoted paragraph are not conditions precedent. They outline conditions subsequent, affirmative matters of defense which the insurer must plead and prove in order to defeat recovery on the policy.”

See, similarly, State Farm Mutual Auto. Ins. Co. v. Koval (C. C. A. 10, 1944), 146 F. (2d), 118.

It may be observed in the case now under consideration that the co-operation clause provided that “the insured shall co-operate-with the company and, upon the company's request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses.” (Emphasis added.) At the close of plaintiff’s case in the trial court, the defendant insurance company rested. Having alleged lack of cooperation as an affirmative defense in its answer, it failed to introduce any evidence at the trial, having contented itself with asking for a directed verdict at the close of plaintiff’s testimony. Giving the most favorable interpretation to plaintiff of plaintiff’s evidence, as is required on motions for directed verdict at the close of plaintiff’s case, was lack of cooperation shown by plaintiff’s evidence sufficient to require the granting of defendant’s motion? We think it was not. Plaintiff’s evidence discloses that the insured was not present at the original hearing in court when judgment was obtained against the insured, but failure to appear in court is not proof of failure to co-operate. If mere failure to appear constituted proof of non-co-operation, it would be within the power of the insurance company and the assured, by acting in concert, to defeat any litigant. Here it should be stressed that there was no evidence that the assured had actual notice of the suit. Despite this fact, the regularity of the judgment against the assured was not attacked and could not successfully be attacked by the insurance company in view of Sections 6308-2 and 6308-5, General Code, permitting service through the office of the Secretary of State, not only on nonresident automobile drivers using Ohio roads, but also on residents who subsequently become nonresidents or who conceal their whereabouts. Hendershot v. Ferkel, supra, second paragraph of syllabus. Although the insurance company had the burden of sustaining the affirmative defense of lack of co-operation by the assured, it offered no evidence in the trial court to show that the assured was ever requested, at any time to co-operate or that he refused to co-operate when requested. Plaintiff’s evidence did not supply this missing proof.

If any conclusions are to be drawn from failure of the assured to accept with alacrity the invitation to the office of plaintiff’s attorney or from his failure to place himself in the path of a deputy sheriff for service of process, it may be suggested that these hesitations merely indicated a defendant genuinely reluctant to be sued and conforming his conduct to practices not ordinarily deemed unfriendly to the defense. There was no testimony in the trial court that the assured failed to forward to the insurance company a copy of the petition or that he failed to report the accident or failed to co-operate in other respects desired. The plaintiff had no means of knowledge on this subject and the behavior of the assured was necessarily known only to and could be testified to by the insurance company alone. Yet the latter elected to remain silent. We note from the evidence that plaintiff’s attorney at every stage of the trial informed the insurance company of developments and furnished the insurance company with a copy of the petition when suit was instituted, doubtless having in mind the language of the opinion in Hartford Accident & Indem. Co. v. Randall, supra, declaring as follows at page 585:

“It must be held that by virtue of Section 9510-4, General Code, an injured person has a potential interest and a substantial right in the policy from the very moment of his injury, and, although it does not develop into a vested right until a judgment is secured, his rights are such, even before judgment, as to entitle him to comply with the terms and conditions of the policy, and thus make them effective in his behalf in the event the insured fails to discharge his duty under the policy.”

The only testimony bearing upon the matter of cooperation or lack of co-operation by the assured was that of plaintiff’s attorney that he failed to locate the assured and that testimony cannot by any means establish failure of the latter to co-operate with the insurance company which, so far as the record shows, may have been in touch with the assured throughout the entire litigation in the Common Pleas Court.

The insurance company having asserted an affirmative defense which it failed to substantiate, we find no error in the judgment of the trial court prejudicial to its rights. The judgment must be and is, therefore, affirmed.

Judgment affirmed.

Siceel, P. J., and Doyle, J., concur.

Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth'Appellate District.


author: Per Curiam.

text:
    In re Adoption of Certain Rules by the Ohio Racing Commission.

      (No. 4601-
    Decided September 27, 1951.)

      Mr. Charles A. Schwenker, for appellant.

      Mr. C. William O’Neill, attorney general, and Mr. Hugh A. Sherer, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County in which it was held that the State Racing Commission, after a hearing, had authority to adopt certain rules, regulations and conditions under which horse racing shall he conducted in this state pursuant to the provisions of the Horse Racing Act (Sections 1079-1 to 1079-15, General Code).

The trial court found that the State Racing Commission has the power, under the Horse Racing Act, to regulate parimutuel wagering; that the rules appealed from represent a reasonable and lawful exercise of the powers of the commission; that the rules are valid; and that the order of the State Racing Commission in adopting rules Nos. 50, 212, 273, 299 and 300 is affirmed.

We have been furnished a copy of the well considered opinion of the judge of the of the trial court in which he discusses all the determinative issues raised. We have carefully* examined the entire record and considered questions raised in the briefs of counsel and are in accord with the judgment and the reasons assigned by the trial court. We do not deem it necessary to write an extended opinion.

In our opinion the judgment is correct and it is hereby affirmed.

Judgment affirmed.

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


author: Miller, J.

text:
    In re Appropriation of Easement for Highway Purposes.
    (No. 180
    Decided October 18, 1951.)

      Mr. Gerald A. Baynes, for appellants.

      Mr. G. William O’Neill, attorney general, and Mr. Everett H. Krueger, for appellee.
   Miller, J.

This is ail appeal on questions of law from a judgment of the Court of Common Pleas entered on the verdict of a jury. The record reveals ' that on July 26, 1950, the director of highways instituted proceedings to appropriate certain real property of the appellants for highway purposes, and, in accordance with the resolution and finding filed therewith, caused the sum of $2,045.30 to be deposited with the clerk of courts. Prom this finding the appellants perfected an appeal and the issue was submitted to a jury on April 26, 1951. The jury assessed the total compensation and damages due the appellants, including a separate finding as to the value of structures situated on the land, at $3,800.

The first assignment of error is that the verdict is not sustained by the evidence and is against the manifest weight of the evidence. We have examined the entire record on this subject and find that the first assignment of error is not well taken. The record discloses that the appellants offered evidence through various witnesses tending to establish that the total compensation due them was between the sums of $9,200 and $15,000. On the other hand, the appellee’s witnesses fixed the amount of compensation due appellants as being between $2,743 and $3,200. The appellants contend that the questions propounded to the appellee’s witnesses as to the market value of the property can have no probative value because a statement of the manner of determining the fair market value, that is, as between a willing buyer- and a willing-seller, was not used as a preface to the questions, the witnesses being asked to state only the fair market value. We find nothing in the record tending to show that these witnesses did not comprehend the meaning of this term, or that they misapplied it in reaching their conclusions. These witnesses were fully cross-examined by counsel for tbe appellants and their knowledge could have been tested on the meaning of the words, “fair market value,” which was not done. The term, “fair market value,” was defined in the appellants’ special instruction No. 2 given to the jury before argument as well as in the court’s general charge. So it must be assumed that the jury had a full and complete understanding of the phrase.

The appellants complain also that these witnesses were not asked to base their opinion of value on the most valuable and best use that could be made of the property.

The rule of valuation in land appropriation proceedings is not what the property is worth for any particular use, but what it is worth generally for any and all uses for which it might be suitable, including the most valuable uses to which it could reasonably and practically be adapted. In re Appropriation by Supt. of Public Works, 155 Ohio St., 454, 99 N. E. (2d), 313. It is well established that a verdict will not be set aside on error on the weight of the evidence unless it is so clearly unsupported as to indicate misapprehension, bias, or wilful disregard of duty. We find no such facts here as there was clearly a conflict in the testimony which had to be weighed by the jury, and which may not be weighed by a reviewing court.

It is next urged that the court erred in charging the jury that the verdict must be based upon the value of the property at the time the property is taken, which is the time of trial, and in refusing to instruct that the time of taking was July 26, 1950, when the proceeding was instituted.

At the outset it will be noted that the appellee did not actually enter upon the premises or. take over physical possession of the property prior to the trial. In order that determination of the time of taking may be made, it becomes necessary to construe the Constitution and statutes governing eminent domain.

The constitutional provision directly applicable to the appropriation of private property is Section 19, Article I of the Constitution of Ohio, which reads as follows:

“Private property shall ever be held inviolate but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money; and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

That section, which operates as a limitation on the sovereign power of eminent domain, requires the payment of compensation or the deposit thereof before the taking of private property for a public use in all cases except where such property is taken in time of war or for the purpose of making or repairing roads. In this connection, the Supreme Court of Ohio has defined the meaning of the phrase, “where private property shall be taken. for public use, ’ ’ contained in Section 19, Article I of the Constitution, in paragraph three of the syllabus in Pontiac Improvement Co. v. Board of Commrs. of Cleveland Met. Park Dist., 104 Ohio St., 447, 135 N. E., 635, 23 A. L. R., 866, as follows:

“The phrase, ‘where private property shall be taken for public.use,’ contained in Section 19, Article I of the Constitution of Ohio, implies possession, occupation and enjoyment of the property by the public, or by public agencies, to be used for public purposes.”

While that case involved the question of “right and power to appropriate,” the foregoing evinces that the Supreme Court construes this phrase to contemplate actual possession and occupation of the property appropriated as a precedent to the taking of private property by a public agency.

Considering next the highway laws pertinent hereto, Section 1178-37, General Code, authorizes the director of highways to appropriate property for highway purposes and outlines the required procedure. That section specifies that upon the filing of the resolution or finding and the deposit of the amount fixed by the director, which he deems to be due the landowner for compensation and damages, if any, the director ‘ ‘ shall be authorized to take possession of and enter upon said property for any and all such purposes.” The deposit, it is to be noted, is required by the next section to be returned forthwith to appellee upon perfection of appellants’ appeal. Section 1178-38, General Code, prescribes the manner for appeal by the property owner from the amount fixed by the director and the general procedure for trial in appropriation cases. It provides further that upon the filing of a petition in error, as herein done by appellants, “the right of the state to possession of the property shall not be affected by such review.”

This provision recognizes the importance to the general welfare of the construction of public highways and was enacted to preclude the delay of such construction during appellate review. Section 1178-38, General Code, also sets forth a provision enabling appellee to abandon appropriation proceedings, to wit:

“The director of highways, if he has not occupied or changed the property appropriated, shall be authorized, at any time but not later than thirty days after the final determination of the cause, to elect to abandon the appropriation proceedings upon the payment of the costs and reasonable attorney fees to be fixed by the court. ’ ’

This provision, it would seem, indicates that the Legislature contemplated that the director of highways might or might not take possession of the premises subject to appropriation prior to the trial. In this connection, the above-cited provisions of Sections 1178-37 and 1178-38, G-eneral Code, should be read in pari materia with Section 1178-39, which reads as follows:

“When a building or other structure is situated upon the land appropriated for any highway improvement, or is situated partly upon the land appropriated therefor, and partly upon adjoining land so that such structure cannot be divided upon the line between such lands, without manifest injury thereto, the jury, in assessing compensation to any owner of the land, shall assess the value thereof, exclusive of the structure, and make a separate finding of the value of the structure and the title to said structure shall vest in the state with the right to enter upon the site of said structure and adjoining land upon which the structure is located for the purpose of removing said structure therefrom. ’ ’

In the case at bar, a number of structures were situated upon appellants’ land. Accordingly, under the prohibitory provisions of the foregoing section, the title to such structures would not vest in the state, nor would the state have the right of entry upon the site of such structures for the purposes of removal thereof until after the award had been determined. It appears that the intendment of this section is that there can be no taking of property subject to appropriation by the director of highways where buildings or other structures are situated in whole or in part upon the property to be taken until the jury has assessed the value thereof. This prohibition would seem to protect the interests of the landowner in that the structures situated upon the land to be appropriated, which structures are to be valued separately by the jury, may not be removed prior to the trial and view of the premises by the jury.

The appellants argue that the taking occurs at the time the director of highways files his resolution or findings; that the right of entry upon the premises subject to appropriation accrues to appellee contemporaneously with the filing of such resolution and finding ; and that this right of entry alone is equivalent to the taking of private property for public use. This contention is rebutted by the provisions of the statute applicable to appropriation of property by the state highway department.

Where structures are situated upon premises to be appropriated, the vesting of title to such structures is stayed and the right of entry upon the premises for the removal of the structures is prohibited by Section 1178-39, General Code, until after assessment by the jury of the respective valuations of the land and structures.

Section 1178-38, General Code, giving appellee the authority to abandon appropriation proceedings, is indicative of the legislative intent that the “taking” does not occur until after the property subject to appropriation has actually been occupied by the state.

The law is well settled in this state, as it is in most other jurisdictions, that the fair market value of property subject to appropriation is to be computed and assessed as of the time of the taking. We think the law of this state is to the effect that the taking occurs at the time the condemnor takes possession of the property appropriated or, alternatively, at the time of the trial, in the absence of prior subjugation of the property by the condemnor to possession, occupancy and enjoyment of use. We find no cases directly construing the foregoing sections with respect to determination of the time of taking. However, we do find a number of cases pertaining to other condemnation statutes and appropriation procedures, which appear to throw some light upon this subject.

Section 19, Article I of the Constitution, and the condemnation statutes relating to conservancy districts were the subject of construction by the Supreme Court in the case of Miami Conservancy District v. Bowers, 100 Ohio St., 317, 125 N. E., 876. The appropriation procedures for conservancy districts are comparable in many respects to the procedure prescribed by the cited sections of the highway laws. In lieu of fixing the valuation of the property subject to appropriation by an executive or administrative office and the deposit thereof in court, the Conservancy Act provides for the fixing of such valuation by the board of appraisers, to which valuation the landowner may agree or except. An exception is effected by the filing of an appeal, and the final determination thereof is made by a jury in much the same manner as specified by Section 1178-38, General Code.

At page 319 of the Bowers case, supra, the court said:

“In this instance there was a failure to agree, the property owner having filed exceptions to such report. . There was, therefore, no ‘taking’ of this property, and could not be under the provisions of the Constitution above quoted, without a trial by jury; and, consequently, no ‘taking’ until then. * * *
“It is clear, therefore, that the action of the trial court, holding that the ‘taking’ of said property did not occur on July 30,1917, the date of the confirmation of the appraisement by the conservancy conrt, was correct, and, hence, the court properly excluded evidence of market value of the property as of that date and permitted evidence of market value only as of the time of the trial.”

A like result was reached in an appropriation proceeding initiated by a municipal corporation in the case of Nichols v. City of Cleveland, 104 Ohio St., 19, 135 N. E., 291, wherein it was stated at page 27:

“And the law is well settled that under these provisions of the Constitution [Section 19, Article I, and Section 5, Article XIII] the property should be valued as of the date when the jury views the premises.”

In the case of Ornstein v. Chesapeake & Ohio Rd. Co., 26 Ohio Law Abs., 78, 36 N. E. (2d), 521 (petition in error dismissed in 123 Ohio St., 260, 174 N. E., 772), it was said by this court at page 84:

“In Ohio the general rule of fixing value of property appropriated under the right of eminent domain is as of the date of the impaneling of the jury.”

In the case of Twenty Three Tracts of Land v. United States, 57 Ohio Law Abs., 135, at page 138, on this subject the court said:

“The filing of a petition in condemnation without taking possession is not a taking. The condemnor may discontinue or abandon his effort. * * * But it would seem clear that the taking of physical possession of the property by the Government and the appropriation of it to its own purposes is a taking for which the then owner is entitled to compensation under the Constitution. ’ ’

In view of the foregoing authorities, we hold that the trial court committed no error in instructing the jury that the value of the property taken should be fixed as of the date of the trial. Counsel for the appellants have cited numerous cases from foreign jurisdictions which are of no assistance in the light of the Ohio authorities cited and since the constitutions and laws of those jurisdictions are at variance with those of this state.

The court did not err in refusing to instruct the jury that the appellants were entitled to interest from July 26, 1950.

We find none of the other errors assigned well taken and since they were set forth in the appellants’ motion for a new trial and were fully answered by the trial court in its opinion overruling the motion, it would serve no useful purpose for us to extend this opinion by recapitulating the reasoning of the trial court.

There being no error in the record, the judgment is affirmed.

Judgment affirmed.

Wiseman, J., concurs.

Hornbeck, Ó. J., not participating.