text:
    City of Cleveland, Appellant, v. Div. 268, Amalgamated Assn. of Street Electric Ry. & Motor Coach Employees et al., Appellees.

      (No. 21051
    Decided January 31, 1949.)

      Mr. Lee C. Rowley, director of law, Mr. Robert J. Shoup and Mr. Robert Mooney, for appellant.

      Mr. Dan W. Duffy and Mr. Bernard Friedman, for appellees.
   Hurd, P. J.

This action in equity for injunction and equitable relief, appealed to this court oh questions of law only, originated in the Court of Common Pleas of Cuyahoga county wherein judgment was rendered for defendants upon the pleadings and the opening statement of counsel, on the ground that plaintiff had a full, complete and adequate remedy at law.

This case involves the authority and jurisdiction of the city of Cleveland in the management, supervision and control of the transit system owned and operated by it under the provisions of the charter of the city and the ordinances and resolutions of council adopted in pursuance thereof.

The sole question presented for our determination on this appeal is whether the petition on its face, together with the opening statement of counsel, sets forth facts sufficient to constitute a cause of action in equity for injunctive relief.

For convenience and brevity the parties will hereinafter be designated as plaintiff and defendants, as they appeared in the trial court.

The plaintiff, in its capacity as a municipal corporation, through the duly qualifiéd and acting members of the Transit Board of the city of Cleveland, created and appointed to supervise, manage and control the city’s transportation facilities., owned and operated by it, filed its petition on February 12, 1948, against the defendants, Division 268 of the Amalgamated Association of Street Electric Railway & Motor Coach Employees of America, and certain of its officers, including Thomas P. Meaney individually and as president, and business agent of Local 268, and Harry C. Lang, individually and as financial secretary and treasurer of Local 268, praying in part that they be enjoined from:

‘‘Interfering in any manner whatsoever with the plaintiff’s officers, supervisors, agents, employees and representatives in the operation of plaintiff’s car lines; and from interfering by force, intimidation or threats, in any manner whatsoever, with those of plaintiff’s employees carrying out the orders and regulations of plaintiff’s supervisors, officers and agents;
“From protecting, aiding or abetting or assisting any one in the commission of said acts;
“From intimidating, coercing or unlawfully influencing plaintiff’s employees from remaining in or from assuming their required public employment and from inducing, coercing or intimidating plaintiff’s employees to stop their work or to abstain in whole or in part from the full, faithful and proper performance of their duties ;
“From interfering with the egress from plaintiff’s car houses of any of plaintiff’s cars.”

The petition alleges, among other things, the corporate capacity of plaintiff, describes the defendant, Local 268 as a non-incorporated labor association and the positions of officers of the association, and sets forth the provisions of the charter of the city of Cleveland, empowering the city through its transit board to provide for the supervision, management and control of its transportation facilities both within and without the city limits of the city of Cleveland, including the operation, maintenance and construction of the system, a determination of the routes, types of rolling stock and equipment, the time schedules and stops, the operation of cars, busses and other equipment and the fixing of salaries or compensation of its employees.

The petition avers further that under the provisions of the laws of this state, it, as a municipal corporation, is not. empowered to enter into a binding contract with a labor union; that Local 268 has in its memberships a considerable number of the employees of plaintiff; that its representatives on occasion negotiate with the officers of the transit system relative to wages, hours and working conditions; that, in order to promote a workable understanding on plaintiff’s property, the board adopted on January 10, 1946, its resolution No. 57-46 which resolution sets forth the working conditions under which its employees shall work; that Local 268, in indicating its willingness to accept and abide by the working conditions, adopted its own resolution in exact conformity to the board’s resolution No. 57-46; that both resolutions contain a provision as follows ;

“Management, supervision and control of the Cleveland Transit System, including among other things the right to direct the working forces, the type of vehicle, the routes, the schedule of service, the maintenance or discipline and efficiency, the hiring, transferring and promotion or demotion of employees, the minimum qualifications of any position or classiiication and any other right, duties and privileges which, by ordinance or resolution of the council of the city of Cleveland or by law or by the charter of the city of Cleveland are reposed in the transit board, subject to such limitations thereon as are lawfully set forth elsewhere in these conditions * * ’’

The plaintiff avers further m its petition that the resolution adopted by the respective parties contains a provision that neither the employees nor their representatives shall call, sanction, assist or engage in any strike, slowdown or stoppage of work, operation or service of the Cleveland Transit System, or in any manner sanction, assist or engage in any restrictions or limitation of the work, operations or service of the system; and that the resolutions also contain a provision that any dispute, claim, grievance or difference between plaintiff and its employees shall be submitted in accordance with the procedure therein set forth to an impartial umpire designated by the parties.

The plaintiff avers further that among the vehicles which it operates on its system, are streetcars commonly known as “100 Type”; that when plaintiff attempted to operate some of the cars by one man on its Kinsman avenue line, defendants ordered and instructed its members not to operate the cars and made certain threats to enforce such instructions; and that in order to avoid a work stoppage on the system this plaintiff submitted the alleged dispute to the impartial umpire who upheld the contention of plaintiff that the Constitution of Ohio, the charter and the “working conditions” reposed in the board the full and plenary power to determine the types of vehicles to be operated and to direct the working forces on plaintiff’s transportation system.

Plaintiff avers further that by virtue of the charter of the city of Cleveland it does have full power and authority to determine the types of vehicles to be operated on the city’s transportation system, and that it is not authorized or permitted by law to share its responsibility relative to the types of vehicles it operates or to delegate that authority.

Plaintiff avers further that for some time it has been operating on the St. Clair and Superior avenue lines a type of vehicle known as a PCC car; that it has been necessary to remove certain of those cars from the lines for necessary repairs; that in order to provide adequate public transportation on the lines plaintiff has transferred to the lines certain of its “100 Type” cars; that the employees of plaintiff working out of the St. Clair avenue barns operated the “100 Type” cars in conformity with the instructions of their supervisors; that after the cars were in operation, the defendants, Thomas P. Meaney and Harry C. Lang, acting in concert and in pursuance of their capacities as officers of Local 268 and in pursuance of their capacities as representatives of the employees, conspired together and are now acting in concert with each other in intimidating, coercing and unlawfully influencing plaintiff’s employees from operating the one-man cars; that they are now acting in concert to effect a stoppage of work of the employees; and that they have procured and induced the employees at the St. Clair avenue house to abstain from the prescribed work.

Plaintiff avers further that at or about 5 a. m. on February 10, 1948, defendants Meaney and Lang, acting in concert as aforesaid, appeared at plaintiff’s St. Clair avenue carhouse and instructed and otherwise ordered plaintiff’s employees to refuse to operate the “100 Type” cars, unless there were two employees on the cars; that on or about 1 p. m. on the afternoon of February 10, 1948, such defendants acting in concert and in pursuance of their capacities as representatives of the employees, ordered and instructed plaintiff’s employees to refuse to operate the cars unless there be two employees on the cars; and that the action was repeated on the morning of February 11, 1948.

Plaintiff avers further that by the conduct and action on the part of defendants, and as a result of the conspiracy of defendants, plaintiff has been and is being prevented from conducting its transportation facilities in an efficient manner and in the manner prescribed by the charter of the city of Cleveland; that a continuance of the acts of the defendants will result in irreparable injury and loss to plaintiff; and that plaintiff has no adequate remedy at. law.

The opening statement of counsel for plaintiff, in addition to incorporating the petition as part thereof, reads in part as follows:

“Now our facts will show that on January 31, when the first of the 100-type cars were assigned to that station, the men took them out and they ran them on the line; that intermittently thereafter until February 10, there wasn’t a single opposition or adverse position on the part of any of the men that operated the cars. They conformed with their public employment; they obeyed their instructors and they took the cars out as at the present time I have designated and operated them. That on February 10, Mr. Meaney and Mr. Lang walked out. to the carhouse and as the men again were taking the cars out, as they had done for the preceding approximately two weeks, Mr. Meaney, our evidence will show, walked before each car as the car was coming from the earyard into the street and stood in the tracks just like this (indicating) and held his hand out. And we have positive evidence of this pictorially. He held his hand up in front of the car and certainly the man wasn’t going to run over Mr. Meaney and he had to stop his car and then Mr. Meaney walked around and he told him to get out.”

The trial court, in granting the motion of defendants for judgment upon the opening statement and the pleadings, stated that in his opinion the plaintiff had a full, complete and adequate remedy at law under the provisions of the Ferguson Act and also under criminal statutes, because in his opinion the conduct of defendants as described constituted a violation of the law.

We shall consider first whether the Ferguson Act so-called, commonly referred to as the Public Employees Anti-strike Law, Sections 17-7 to 17-12, General Code, affords the plaintiff an adequate remedy at law. The gist of the act is contained in Section 17-8, General Code, and is as follows:

“No person holding a position by appointment or employment in the government of the'state of Ohio, or in the government of the several cities, villages, counties or townships thereof, or any other political subdivision of the state, or of a municipality, or in the public school service, or in any public or special district, or in the service of any authority, commission, or board, or in any other branch of the public service, hereinafter called a ‘public employee,’ shall strike.”

Other sections of the act define what is meant by “strike” qnd provide for penalty and reinstatement. Inasmuch as the petition clearly indicates on its face that the defendants are not employees of the plaintiff, this section of the General Code in our opinion has no application to the allegations of the petition.

It was expressly set forth in the opening statement of counsel that the employees commenced to operate the so-called one-man cars on January 31st and continued to do so until February 10th and 11th when the defendants Meaney and Lang interfered and prevented their operation. It is likewise set forth in the oetition that employees who were assigned to operate the cars attempted to carry out the instructions of plaintiff’s supervisors but were forcibly prevented from doing so by defendants Meaney and Lang.

For the purpose of ruling upon the motion, it was the duty of the trial court to accept as true the well-pleaded allegations of the petition, and the opening statement of counsel. Whether such allegations could later be sustained by a sufficient degree of proof on the trial of the case is another question entirely.

From the allegations of the petition and the opening statement of counsel it appears that the defendants Meaney and Lang are not employees of the city of Cleveland but are officers of Local 268 and in the conduct complained of were engaged in their work as such officers and members of the local. Therefore the defendants cannot qualify as public employees of the city of Cleveland, and inasmuch as the complaint in the petition is directed toward the conduct of these defendants individually and as officers of Local 268, it cannot be successfully maintained that they are public employees within the meaning of the act, under the allegations of the petition and the opening statement of counsel. Consequently we conclude that it was error, prejudicial to the rights of the plaintiff when the trial court held that the provisions of Sections 17-7 to 17-12, General Code, afforded a full, adequate and complete remedy at law.

We shall consider next whether the plaintiffs are afforded an adequate remedy at law under the provisions of the criminal statutes of the state of Ohio or the ordinances of the city of Cleveland.

Apparently the theory of the trial judge was that by causing the defendants to be arrested for trespass or some similar offense the plaintiff would be afforded an adequate legal remedy. We cannot agree with this view.

It must be remembered that according to the allegations of the petition the defendants were not in the same position as an ordinary person who trespasses upon the property of another. The defendants as the highest ranking officers of Local 268 represent the employees of the plaintiff who are members of the local and have certain jurisdiction over them as members of the union. In- their position as officers they are clothed with much greater power and authority than the average individual who bears uo official relationship to these employees.

It is reasonable to assume that when the officers of the union give directions to the members of the union that these member-employees will have a much greater respect for and will feel a much greater obligation to conform to the directions of such officers. Hence their relationship is not properly comparable to that of trespassers who would be strangers to them.

There would be no assurance that the arrest of one or two officers and their prosecution under criminal law would afford a remedy for the acts concerning which complaint is made. The allegations of the petition and the statements of counsel present the typical situation where courts of equity are called upon to exercise jurisdiction by granting equitable relief, and the fact that the matter charged is also a violation of law does not prevent a court of equity from exercising its jurisdiction in such cases.

An examination of authorities discloses that where an act is a violation of criminal law the court will not for that reason refuse injunctive relief when the act also constitutes an interference with the interests of the public or violates property rights.

The courts have passed upon this proposition many times. The authorities cited in the brief of plaintiff are in point, some of which are as follows:

Renner Brewing Co. v. Rolland, 96 Ohio St., 432, 118 N. E., 118:

‘ ‘Where the averments of a petition would, if proven, entitle the plaintiff to an injunction, a writ will not be refused merely because the acts sought to be enjoined are punishable under the criminal statutes of this state. ’ ’

30 Corpus Juris Secundum, 391, Equity, Section 53:

“It is well settled, however, that if plaintiff makes out a case where equity would otherwise interfere, aid will not be withheld because the act complained of is a crime as well. ’ ’

43 Corpus Juris Secundum, 525, Injunctions, Section 61:

“Criminal trespass. The fact that a trespass to real property may also constitute a crime does not affect the power of the court to grant an injunction.”

See, also, High on Injunctions (4 Ed.), Section 20-a; 40 A. L. R., 1145.

Another proposition not discussed in the briefs or argument appears in the record before us. It should be noted that according to the allegations of the petition and the opening statement of counsel, which is all that is before us, the parties had by agreement submitted their dispute to an impartial umpire and it was only after an adverse decision by the umpire that direct action complained of was taken by defendants. Failure to abide by the decision of the umpire or to appeal to the courts certainly gave rise to a right, of action in equity by the plaintiff.

Furthermore, lest there be any misunderstanding, we emphasize that the right of employees, either public or private, to strike for redress of grievance is not involved in this case, either under the so-called Ferguson Act or otherwise.

We think it unnecessary to pursue this subject at any further length. It is our conclusion that the petition and opening statement of counsel set. forth facts sufficient, to constitute a cause of action in equity and that the trial court committed error prejudicial to the lights of plaintiff in granting the motion for judgment on the pleadings and opening statement and in dismissing the petition at defendants’ costs.

For the reasons stated the judgment of the Court of Common Pleas is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Moro a n and Skeel, JJ., concur.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    Yates, Appellee, v. Irvin, Appellant.
    (No. 2014
    Decided December 29, 1948.)

      Mr. Clifford R. Curtnér, for appellee.

      Messrs. Pickrel, Schaeffer é Ebeling, for appellant.
   Miller, J.

This is an appeal on questions of law from the Court of Common Pleas of Montgomery county. The action was one for personal injuries arising out of an automobile collision. The defendant admitted liability, so the only question at issue was as to the extent of the damages. A jury trial was had which resulted in a verdict for the plaintiff.

The record discloses that on the voir dire examination of the jury, counsel for the plaintiff, without laying any foundation for the same, asked the genera] question, “Are any of you people stockholders or employees of the Buckeye Union Casualty Company?” There had been no disclosure in open court up to that time that an insurance company was involved in the case, nor had any member of the jury panel disclosed any interest in or connection with any insurance company or with this particular insurance company. Counsel for the defendant immediately objected and moved for the withdrawal of a juror, which motion was overruled. This the defendant, appellant herein, urges constituted prejudicial error.

The record discloses that during the course of the argument on the motion, Mr. Altick, one of counsel for the defense, made the following statement in the absence of the jury:

“ I’d like to have the record show that on behalf of the defendant, in so far as he is not protected by insurance, I join in the motion that a juror be withdrawn and a mistrial declared, for the reason that the mention of the specific name of the Buckeye Union Casualty Company is prejudicial to the defendant in so far as he might be liable to satisfy a judgment in excess of the policy limits.”

It, therefore, became apparent that the Buckeye Union Casualty Company was defending within the policy limits. The specific question herein presented is whether the question was prejudicial to the rights of the defendant.

The cases of Dowd-Feder, Inc., v. Truesdell, 130 Ohio St., 530, 200 N. E., 762, and Morrow v. Hume, Admx., 131 Ohio St., 319, 3 N. E. (2d), 39, represent the last pronouncements of the Supreme Court on the question of the propriety of examination of a prospective juror on voir dire examination as to any connection with insurance companies. In the Dowd-Feder case, supra, it is said in paragraphs two and three of the syllabus:

”2. In the examination of a juror upon his voir dire, in cases involving property damage, persona] injury or both, he may be asked the general question whether he has or has had any connection with or interest in a casualty insurance company. If the answer be in the affirmative, the juror may then be asked the name of such company and the nature of bis connection with or interest therein, (Paragraph three of the syllabus of Paviloms v. Valentine, 120 Ohio St., 154, and paragraph three of the syllabus of Vega, Admr., v. Evans, 128 Ohio St., 535, modified.)
“3. All questions in the voir dire examination must be propounded in good faith. The character and scope of such questions cannot become standardized, but mus! be controlled by the court in the exercise of its sound discretion, the court having for its purpose the securing to every litigant an unbiased jury.”

That case has been cited by counsel for both parties as sustaining their point of view, the defendant relying upon the second paragraph of the syllabus, and the plaintiff, appellee herein, relying upon the third paragraph. We think that a proper interpretation has been given to the law announced in the Dowd-Feder case, supra, in the case of Ensign v. New York Life Ins. Co., 26 Ohio Law Abs., 281. At page 282, Lieghley, J., says:

“The last two cases decided by the Supreme Court of Ohio, dealing with this question, seem to have established a clear and fair rule that counsel in the voir dire examination of the jury have a right to propound general inquiries to ascertain whether any one or more of the prospective jurors have any interest or hold any stock or are directly or indirectly concerned in the affairs of any casualty company. If the answer is in the negative, the examination is concluded in this regard.
“If either one or more of the jurors answer the general questions in the affirmative, counsel may then proceed further to fully ascertain the interest and the kind of interest which the juror or jurors may have in such company, with a view to determining whether or not any bias or prejudice exists. The extent to which these specific inquiries in respect to their relations with the specific casualty company mentioned may extend rests in the sound discretion of the trial judge. Dowd-Feder, Inc., v. Truesdell, 130 Ohio St., 530. Morrow v. Hume, Admr., etc., 131 Ohio St., 319.
* * * * *
“The casualty company was not a party to this case and should not have been under the showing made injected into the case. Injecting it in the manner it was done without warrant, compels an irresistible suspicion of prejudice in the jurors against the defendant and in favor of the plaintiff.
“In short, the whole examination seems to us to present a situation prejudicial to the defendant. It unnecessarily, and without warrant, as no juror had indicated any interest in said company, created a situation where the jury might feel justified in recklessly determining the issue of liability and recklessly deciding the amount of compensation and especially so when the method and manner of the conduct of this examination is examined in a dispassionate and nonpartisan way.”

In the Ensign case as in the case at bar counsel for the plaintiff stated the name of the specific casualty company without first.asking a general question. We are in accord with the procedure as announced in the Ensign case, supra, and, therefore, hold that the question was asked unnecessarily and without warrant, as no juror had indicated any interest in the casualty company. We believe this constituted prejudicial error which requires a reversal.

It is charged further that the. court erred in allowing plaintiff’s special instruction on damages and in failing to properly charge on damages in the general charge. The record discloses that at the close of all the evidence, at plaintiff’s request, the court gave the following instructions on the question of future damages :

“She is entitled to compensation for the pain suffered in the past and the pain for which she will suffer in the future.”

The defendant is contending that the special charge is an incorrect statement of the law as relating to prospective damages since it does not limit them to such as the evidence shows are reasonably certain to result from the injury. We think this assignment of error is well grounded. The leading case on this subject is that of Pennsylvania Co. v. Files, 65 Ohio St., 403, 62 N. E., 1047, which announces the rule to be applied in this case in the second paragraph of the syllabus:

“Where prospective damages from an injury are claimed, they should be limited by the court in its charge to such as may be reasonably certain to result from the injury.”

In the case of Ottgen v. Garey, 41 Ohio App., 499, 181 N. E., 485, it is said at page 505:

‘ ‘ The rule of law adopted by the courts of this state is that, ‘where prospective damages from an injury are claimed they should be limited by the court in its charge to the jury to such as the evidence shows are reasonably certain to result from the injury.’ ”

See, also, Toledo Railways & Light Co. v. Prus, 7 Ohio App., 412; Toledo Railways & Light Co. v. Poland, Gdn., 7 Ohio App., 397; Paule v. Koblenzer, 28 Ohio Law Abs., 664.

The special instructions given by the court before argument in the instant case do not limit compensation for future damages to those which are reasonably certain to result from the injury. The record shows that a general exception to the charge was made by one of counsel for defendant, so the record was properly saved. Requested charges should be complete and state the Jaw correctly and clearly within themselves, and the giving of one which fails to do so to the prejudice of the adverse party is ground for reversal. Krekeler v. Cincinnati Traction Co., 16 Ohio App., 125; Ohliger v. Toledo, 20 C. C., 142, 10 C. D., 762. The quantum of proof was not properly defined in the general charge, which is also claimed to be error. On this subject the court said in its general charge:

“If you find that plaintiff suffered injuries as a result of the accident, you will award her such damages as the proof tends to show that she is fairly and justly entitled to receive. The sum or measure of damage is just compensation, in money, for the actual loss sustained by reason of the injuries which flow as proximate and natural consequences of the negligence of the defendant, or such an amount as will make the plaintiff whole. Take into consideration the nature of the injuries; whether they are permanent or otherwise how they will affect the plaintiff, if at all; physical pain or suffering, if any; loss of earnings and expenses of medical and hospital care.”

That, however, was an error of omission and not commission and it became the duty of counsel to call the court’s attention to the same. Columbus Ry. Co. v. Ritter, 67 Ohio St., 53, 65 N. E., 613; Portney v. Frank, 77 Ohio App., 357, 65 N. E. (2d), 290.

We, therefore, find no prejudicial error in the general charge, but do find that the special charge did not correctly state the law, and that the same constitutes prejudicial error.

We find no merit to any of the other assigned errors. For the foregoing reasons judgment is ordered reversed.

Judgment reversed.

Wiseman, P. J., concurs.

Hornbeck, J., concurs in final judgment.


author: Ross, P. J.

text:
    Ellis, Appellant, v. Victor Electric Products, Inc., Appellee.

      (No. 7090
    Decided May 31, 1949.)

      Messrs. Scanlon <& Scanlon, for appellant.

      Messrs. Dinsmore, Shohl, Sawyer & Dinsmore, for appellee.
   Ross, P. J.

The appeal upon questions of law here considered is from a judgment of the Court of Common Pleas of Hamilton County, rendered in favor of the defendant upon its motion for judgment on the pleadings and opening statement of counsel.

That courts should not be unduly precipitate in granting such motions is apparent from the cases in which such motions have been considered by courts of review. Neckel v. Fox, 110 Ohio St., 150, 152, 143 N. E., 389, in which it is stated, “This court is not disposed to give too rigid a construction to the terms employed in the statement by counsel for plaintiff.”

See, also, Wainscott v. Young, 74 Ohio App., 463, 59 N. E. (2d), 609; 39 Ohio Jurisprudence, 885, Section 226.

Stripped of many matters irrelevant to the questions presented, the problem involves the construction of a contract which is definitely alleged and stated by plaintiff and denied by the defendant.

In both his petition and opening statement, the plaintiff claims the defendant promised and agreed that, if the plaintiff would take a reduction in his monthly salary of $200, the defendant would pay plaintiff (1) $650 per month, (2) pay plaintiff’s moving expenses from Pittsburgh, Pennsylvania, (3) give plaintiff an annual two weeks vacation with pay and (4) pay plaintiff a bonus based on increased prod,notion, guaranteed to be substantially more than the difference between his previous salary and that accepted, if production continued as it had for the two previous months.

The plaintiff claims he performed his contract and this is not seriously denied.

The defendant, according to statements of plaintiff, performed part of its contract. It paid plaintiff the $650 per month and the amount of vacation pay, after demand for same, and, as no claim is made for moving expenses, it may be presumed the defendant paid these also.

The defendant has refused to pay the plaintiff any extra compensation in any amount, although there is a definite allegation, which, if proved, would entitle plaintiff, without question, to at least the difference between $850 and the $650 temporarily accepted by plaintiff. When the promise to pay a “bonus” becomes a part of a contract of employment it is more than a mere gratuity. Mabley & Carew Co. v. Borden, 129 Ohio St., 375, 195 N. E., 697. See, also, 28 A. L. R., 332.

The holding in the Mabley & Carew case was in the face of a statement that the “bonus” was “purely voluntary and gratuitous.”

A great deal of confusion is created upon both sides; of this controversy by the use of terms irrelevant to* the issues presented.

However, regardless of plaintiff’s statement of his conception of the relief merited by the facts alleged, if he is entitled to relief on the facts alleged and stated, such relief must be extended by the courts. Schaefer v. First National Bank of Findlay, 134 Ohio St., 511, 520, 18 N. E. (2d), 263, wherein it is stated:

“When the plaintiff pleads all the facts the court should give him the relief he is entitled to, whether in equity or by declaratory judgment; even the prayer is not controlling. Riddle & Parker v. Roll, 24 Ohio St., 572; Tiffin Glass Co. v. Stoehr, 54 Ohio St., 157, 163, 43 N. E., 279; State, ex rel. Masters, v. Beamer, 109 Ohio St., 133, 151, 141 N. E., 851.”

See, also, Triff, Admx., v. National Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131; Cook v. Crider, 63 Ohio App., 12, 24 N. E. (2d), 966.

The facts alleged and stated by plaintiff show the existence of a contract. Statements as to quantum meruit and unjust enrichment, if irrelevant, may be ignored as surplusage. Triff case, supra.

The defendant, according to plaintiff’s allegations and statements, agreed to pay a bonus, that is, additional compensation to that paid monthly, based on increased production and guaranteed to be substantially more than his previous salary. In effect the contract was to pay compensation for services rendered, in part monthly and the balance at the end of the year.

It is evident that the substantial increase over the accepted decrease in salary will have a direct relation to increased production. A mathematical ratio is thus presented involving the decrease in salary accepted by plaintiff, increased production, which is charged to be 600 per cent and a substantial payment. What will be the amount of damages for the breach of this contract will be a question for the jury, largely controlled by what, it determines the reasonable value of the services rendered to be, tailing into consideration the increased production accomplished by plaintiff.

The use of the word, “bonus,” in the contract is misleading, and, as has been pointed out, the “bonus” is not under the circumstances a mere voluntary gratuity.

The fact that the exact amount of compensation is left to future determination between the parties does not destroy the obligation to pay the reasonable value of the services, even if partial payment is made from time to time, when such services are rendered under such an agreement. Certainly, a contract merely to pay a substantial amount for services rendered can be enforced. Such amount would necessarily have a relation to the reasonable value of the services rendered. See 12 American Jurisprudence, 877 et seq., Section 323 et seq.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Ross, P. J., Hildebrant and Matthews, J.I., concur in the syllabus, opinion and judgment.


author: Doyle, J.

text:
    The State of Ohio, Appellee, v. Brennan, Appellant.
    (No. 3987
    Decided May 9, 1949.)

      Mr. Alva J. Russell, prosecuting attorney, and Mr. Jackson B. Morris, for appellee.

      Mr. E. Guy Hammond, for appellant.
   Doyle, J.

This appeal is by the defendant from a judgment of the Common Pleas Court of Summit County, entered upon a finding of guilt against the said defendant of the crimes of burglary of an inhabited dwelling house in the night season, and grand larceny.

The defendant, William Brennan, was charged by the grand jury in two separate indictments, containing several counts each, with the crimes of (1) breaking and entering an inhabited dwelling house in the night season with the intent to commit larceny, (2) grand larceny, (3) forgery, and (4) receiving stolen property. He waived a jury in compliance with the statutes, was tried by the court, and was found guilty of all of' the charges except that of receiving stolen property, on which charge he was found not guilty.

The appeal to this court is, as heretofore stated, from the judgment of guilt on the indictment charging burglary and grand larceny. There apparently is no appeal from the conviction, on the other indictment, of the charge of forgery; at any rate, there is no claim of error concerning that conviction.

It is urged here (1) that said judgment is “against the weight of the evidence and contrary to law,” and (2) that neither the charge of burglary nor the charge of grand larceny was established beyond a reasonable doubt.

There is evidence in the record tending to prove that on Saturday, October 25, 1947, someone burglarized the home of Sheldon B. Hoover in the city of Akron and stole 37 United States Savings Bonds, Series E, each with a par value of $25 or more, and other miscellaneous papers and documents, included in which were deeds, mortgages, contracts, social security cards, insurance papers, etc. Two days later, on Monday morning, several of the local banks and loan companies were notified to be on the alert for someone who might attempt to cash the bonds. A short time thereafter, a clerk at the Dime Savings Bank suspicioned a person (the defendant Brennan) who sought to have bonds cashed, and notified the police. The defendant was thereupon arrested.

The bonds which were presented for cashing were identified as being among those stolen in the burglary, and bore the purported signature of Sheldon B. Hoover (the owner). The accused, when asked for identification material by the bank clerk, presented documents bearing the name of Sheldon B. Hoover, which had been stolen in the burglary. Shortly after the arrest of the appellant, his room was searched and there was found a flashlight and various papers (automobile operator’s license, social security card, etc.), all stolen from the Hoover home at the time of the burglary.

In the trial, the defendant took the witness stand in his own defense and denied the burglary and larceny. He gave a strange account of his possession of the bonds and the various papers. He said that on Monday morning, as he was going from barroom to barroom in downtown Akron, he met a convivial person who asked him if he would, for a consideration, get some bonds converted into money. Upon his acceptance of the charge, he was given the bonds and identification papers. He then signed Mr. Hoover's name on the bonds, but, before going to the bank, went to his home where he left some of the identification papers (later found in his room by the police). He then went to the bank, impersonated Mr. Hoover, and was arrested. There was, however, substantial evidence, which apparently the trial judge believed, to the effect that defendant was at another bank cashing other of the stolen bonds, at the time he claimed he made the trip to his home.

In addition to the defendant’s testimony in his own defense, two witnesses, his mother and his brother, testified, by way of alibi, that at the time.of the burglary he was at his home with them.

1. It has long been the law of this state that, where a burglary has been committed and property stolen as a part of the criminal act, the fact of the subsequent possession is some indication that the possessor was the taker, and therefore the doer of the whole crime.

In Methard v. State, 19 Ohio St., 363, it is said :

“3. The facts that a building was burglariously entered, goods stolen therefrom, and the possession by the accused soon thereafter of the goods stolen, are competent evidence to go to the jury, and with other circumstances indicative of guilt, such as giving a false account, or refusing to give any account, of the manner in which, or the means- by which, he came into possession of the stolen goods, may afford- a strong presumption of fact of the guilt of the accused, and warrant, the jury in finding him guilty of both the burglary and larceny. But the facts of burglary, of larceny, and of possession of the stolen goods soon thereafter by the accused, do not, alone, raise a presumption of law that he is guilty of both the burglary and larceny.”

Prom the above cited case it is apparent that, in this state, we are not troubled with the question wheth er an accused’s possession of stolen goods raises a “presumption.” that he is a thief. The learned Chief Justice in Methard v. State, supra, was careful to distinguish between a “presumption of fact” and a “presumption of law.” Of course, if the possession created a presumption of law, it would place upon the accused a duty of producing evidence to satisfactorily explain his possession, and a failure in this respect would require the jury to convict. On the other hand, the words “presumption of fact” were used, and it is apparent that-the Ohio court used the words to denote a permissible inference which will support a conviction of burglary and larceny, when connected with actual proof of a burglary and a larceny and other circumstances indicative of guilt, such as “giving a false account * * * of the manner in which, or the means by which, he came into possession of the stolen goods. ’'

See:

1 Wigmore on Evidence (3d Ed.), Section 152.

9 Wigmore on Evidence (3d Ed.), Section 2513.

9 American Jurisprudence, Burglary, Section 64.

2. The appellant states in argument that “the mere inference permitted to be drawn from the remote fact of possession of the goods cannot be said to prevail, in any just sense, over the unimpeached, positive testimony of two witnesses, strengthened and supported by the presumption of innocence which the law allows '* * *. Indeed, to minds ordered by the principles of reason and of judgment, this ‘prima facie ’ product can amount to no more than a faint suspicion, and we are to keep in mind that it can be given the dignity of evidence only when it is not explained, or there is no other evidence to refute it.”

As heretofore stated, two witnesses testified to the presence of the accused at a place other than the place of the burglary at the time it was committed. It. is now asserted that the inference which may be drawn from the fact of possession cannot prevail “over the unimpeached * * * testimony” of the alibi witnesses and “the presumption of innocence which the law allows.”

The following statement taken from 32 Corpus Juris Secundum, Evidence, Section 1038, is presented to sustain the claims made:

“Uncontradicted or undisputed evidence should ordinarily be taken as true. More precisely, evidence which is not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable, cannot be arbitrarily or capriciously discredited, disregarded, or rejected, even though the witness is a party or interested; and, unless shown to be untrustworthy, is to be taken as conclusive, and binding on the triers of fact.”

On the theory that in this country it is not a requirement that an accused establish his innocence, but for the prosecution to establish his guilt beyond a reasonable doubt, it is generally held that the accused does not have the burden of proving an alibi. Such is the law in Ohio. Toler v. State, 16 Ohio St., 583; State v. Norman, 103 Ohio St., 541, 134 N. E., 474; Sabo v. State, 119 Ohio St., 231, 163 N. E., 28.

While the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence, and it is sufficient for him to raise a reasonable doubt as to his guilt by way of alibi or other defense; he is not bound to satisfy the triers of the facts of his innocence.

“If the proof as to an alibi raises a reasonable doubt in the minds of the jury as to whether the accused was present at the place and time where and when the crime was committed, the accused is entitled to have the defense fairly treated like any other defense and is not obliged to establish that it was impossible for him to commit the act charged. If under the evidence tending, if true, to prove an alibi, it may have been possible for the defendant to have committed the crime, it is still for the jury to determine whether, if the evidence is true, he availed himself of the possibility it afforded.” People v. Barbato, 254 N. Y., 170, at pp. 178-179, 172 N. E., 458.

And see:

6 Ohio Jurisprudence, Burglary, Section 38.

As heretofore said, the jury determines the credibility of witnesses, and, in criminal cases, determines whether the evidence of an alibi creates a reasonable doubt. We are not gifted with the power to discern truth with mathematical certitude. Witnesses, and especially interested witnesses, sometimes impose upon courts, stories which are creations of their own imagination. And so the law goes further than that which is stated by counsel, sttpra, taken from the text of Corpus Juris Secundum. In fact, reading further in the same section, may be found the law as we recognize it to be in this state:

“A fact is not undisputed merely because one or more witnesses testify to it and no one denies it, since it is for the trial court to determine what credence it will give to witnesses. Further, evidence is not regarded as undisputed if it is at variance with the facts and circumstances in the case, or with reasonable inferences therefrom or from the evidence; and reasonable inferences from circumstances or physical facts may outweigh undisputed oral testimony. Thus, the general rule that uncontradicted evidence cannot be disregarded, or is to be taken as true, is subject to many qualifications and exceptions; and it has even been declared a general rule that the trier of facts may disregard or discount uncontradicted evidence. The common view is that evidence not directly contradicted is not necessarily binding on the triers of fact, and may, in proper circumstances, be disbelieved and given no weight, in whole or part, especially where the witness is a party or otherwise interested * * *."

Reference is made to the many authorities in the footnotes supporting this text.

As we view the record before us, the prosecution introduced sufficient competent evidence to prove every essential allegation in the indictment beyond a reasonable doubt.

The burglary of and larceny in an inhabited dwelling house, and the possession of the stolen property by the accused, is established beyond peradventure. His fanciful explanation of possession was such as a court or jury could reasonably conclude to be a false and untrue narration of an imaginary experience. This, coupled with the admitted felonious forgery of the name of the owner of the bonds, presented circumstances so indicative of his guilt of the burglary and larceny that the judgment of the trial court should and must be affirmed.

Judgment affirmed.

Stevens, P. J., and Hunsicker, J., concur.


author: Carpenter, J.

text:
    Hollywood Cartage Co., Inc., Appellant, v. The Wheeling & Lake Erie Ry. Co., Appellee.
    (No. 565
    Decided October 25, 1948.)

      Messrs. Miller £ Miller, for appellant.

      Messrs. Young £ Young, for appellee.
   Carpenter, J.

The judgment from which this appeal on questions of law was taken resulted when the court sustained a plea in bar to the plaintiff’s petition and dismissed it. This action by the court is assigned as error.

The plaintiff, by its petition, sought damages for the destruction of its freight tractor and trailer when they were bit by defendant’s locomotive on the Benedict avenue grade crossing in Norwalk. It was alleged that the collision was caused by the negligence of the defendant.

For its third defense in its answer, the defendant alleged that, in another action wherein one Lewis A. Haas was plaintiff, plaintiff herein was defendant and Haas sought damages “arising from the same collision and constituting the same subject matter as that involved in this action, [which action] was duly tried to a jury in this court; * * * said Hollywood Cartage Company * * * appeared and defended therein and that, a special finding of fact was entered by the jury in said cause that Loyie H. Brown, the agent and employee of the plaintiff in the operation of its motor transportation company, was guilty of negligence at the time and place alleged in plaintiff’s petition herein * * * which was the proximate cause of the collision between the defendant’s train and plaintiff’s motor transportation outfit.”

Although no reply was filed to this defense, the fact issue thus presented was tried to the court as though a genera] denial had been entered. A bill of exceptions in that trial is presented in this appeal. The only evidence it contains is a complete record of the pleadings, motions and journal entries in the Haas case.

From that record it appears that Lewis A. Haas was the gate tender of the railroad'company and was injured in the collision of this plaintiff’s truck with defendant’s train, and his action, based on alleged negligence of the defendant, was for the damages he thus sustained. The answer was a general denial and an allegation of contributory negligence.

That record discloses also that the finding of the jury referred to in this defendant’s answer was' as follows:

“1. Was the defendant negligent in the operation of its motor vehicle at the time of the collision? Answer. Yes.”

That was the only interrogatory submitted to that jury. The only other finding it made was a genera] verdict for the defendant, the cartage company, on which a judgment for it was entered. No judgment was or could be entered on that special finding.

In another action by the driver of this plaintiff’s truck against this defendant for damages resulting from the personal injuries he sustained in that collision, this same finding was alleged as a plea in bar and was allowed by the trial court. In Brown v. Wheeling & Lake Erie Rd. Co., 77 Ohio App., 149, 65 N. E. (2d), 912, that judgment was reversed by this court for the reason that the parties and the issues were not the same.

The principles of res judicata and estoppel by judgment were discussed in Norwood v. McDonald et al., Admrs., 142 Ohio St., 299, 52 N. E. (2d), 67. The features in interest here were summarized in paragraphs one and two of the syllabus in that case as follows:

‘ ‘ A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privity with them.
“A judgment or decree in a former action does not bar a subsequent action where the causes of action are not the same, even though each action relates to the same subject matter.”

Another way of expressing the specific proposition of law applicable herein is as stated in 50 Corpus Juris Secundum, 204, Section 720:

“A judgment in one action cannot be conclusive of issues in another action where there is diversity of parties, and, in addition to, or because of, such diversity, there is also diversity of issues.”

Under those principles, the judgment in this case must be reversed for two reasons:

1. As in the Brown case, the ‘‘questions and facts in issue” and ‘‘the causes of action” in the two actions are different. In the Haas case, the issue was damages for his personal injuries and the railroad company was not a party or a privy therein. Here, the issue is the cartage company’s damages to its property, caused, as it contends, by the railroad company, and Haas is not a party or in any way privy to this matter.

2. Although the answer to the interrogatory was that the cartage company was negligent, that jury did not say that that negligence was the proximate cause of the collision and of Haas’ damages. The defendant seems to have recognized the importance of this, for in its plea in bar, as above quoted, it alleges that the negligence found ‘‘was the proximate cause of the collision.” That record does not sustain this.

The jury was not asked by interrogatory to find on that essential question. By its general verdict for the cartage company, the jury may have found that that negligence was not the proximate cause of Haas’ damages, or that his own negligence proximately contributed to his injuries. As that record stands, there is no way to know the jury’s mind on that question, without which the finding of negligence was of no consequence in that lawsuit nor is it in this.

In this connection it may be of interest to note that the submission of that lone interrogatory was error. In the recent case of Anderson, Admx., v. S. E. Johnson Co., 150 Ohio St., 169, 173, 80 N. E. (2d), 757, it was established in the opinion by Chief Justice Weygandt that unless the answers to interrogatories will furnish a legal test of a general verdict, they are not pertinent and the interrogatories should not be imposed upon the jury. This proposition is carried into paragraph two of the syllabus.

For these reasons, the judgment is reversed and the cause is remanded to the trial court with directions to overrule the plea in bar and for further proceedings.

Judgment reversed.

Conn and Fess, JJ., concur.


author: By the Court.

text:
    The State of Ohio, Appellee, v. Mason, Appellant.

      (No. 1987
    Decided December 2, 1948.)

      Mr. Mathias Heck, prosecuting attorney, and Mr. Herbert M. Jacobson, for appellee.

      Messrs. Scharrer. Scharrer & Hanaghan, for appellant.
   By the Court.

This is an appeal on questions of law from the Common Pleas Court, Division of Domestic Relations, Montgomery county, in which the defendant was charged, tried and convicted of indecent exposure of his person in the presence of three schoolgirls.

The case was tried to the court without the intervention of a jury. The trial began on January 22, and was concluded on January 23, 1948. On the morning of January 23, a news item appeared in the Dayton Journal, a newspaper published in the city of Dayton, captioned: “Sex Offenses Show Increase; Parents’ Wrath Aroused Here.’’ The newspaper article, which the trial judge admitted had been called to his attention, was introduced as an exhibit at the close of the trial. In the newspaper article a statement is made that Dayton parents were incensed at a series of sex offenses and filed vigorous protest with the trial judge. The newspaper article mentions the names of several persons charged with committing sex offenses; it also states that the president of the Montgomery County Parent-Teachers Association indicated to the trial judge that Dayton parents believe penalties for sex offenses were too light. The article comments on the trial of the defendant but makes no statement indicating the guilt or innocence of the defendant.

The trial judge before finding the defendant guilty and pronouncing sentence made a lengthy statement in which he analyzed the evidence and commented on the newspaper article as follows:

”I can assure you, Obed Mason, that the fact that there was a story in this morning’s paper has not influenced me in the least. I’m not concerned with that story in the paper or what they might think or write. I’m concerned in this case primarily with the evidence that was brought out here in the courtroom, and I think the prosecutor and counsel for the defendant have both done an excellent job and have been most considerate of the court in their presentation of this case. I believe the evidence has been fully presented and capably presented. I appreciate that. ' It is my job to try and apply the law to these facts as they have been brought out.”

The defendant contends that the court was prejudiced by reason of the appearance of the newspaper article of which the trial judge had knowledge. The point is made that the newspaper article was calculated to prejudice the mind of the court and deprive the defendant of a fair and just trial. No case in point is cited. However, the defendant calls our attention to Meyer v. Cadwalader, Collector, 49 F., 32, and People v. Murawski, 394 Ill., 236, 68 N. E. (2d), 272, which held that where newspaper articles are published during a trial which are calculated to prejudice the rninds of the jurors, it will be presumed that the jurors read the articles and that action of a prejudicial character resulted. It is contended that this principle of law is equally applicable to the-trial judge when acting as a trier of the facts. The courts-of this state have refused to follow the above cited cases and have taken a contrary view. Ryan v. State, 10 C. C. (N. S.), 497, judgment affirmed without opinion by the Supreme Court in 79 Ohio St., 452, 87 N. E., 1141; State v. Fouts, 79 Ohio App., 255, 270, 72 N. E. (2d), 286. The view taken by the Ohio courts is supported by the following: Hatton v. Stott, 220 Mich., 262, 189 N. W., 850; Forsythe v. In re Thompson’s Estate, 157 Mich., 669, 122 N. W., 219; Ft. Wayne Iron & Steel Co. v, Parsell, 49 Ind. App., 565, 94 N. E., 770, 777.

The question presented bears such a close analogy to the question which arises on the admission of incompetent evidence that a brief discussion of the law on that subject may be helpful. It has been held that where a trial is had before the court without a jury, the admission of incompetent evidence does not necessarily constitute reversible error; especially, is this true where the incompetent evidence is not considered by the trial judge or if there was sufficient competent, evidence to support the judgment. 2 Ohio Jurisprudence (Pt. 2), 1278, Section 687; 3 American Jurisprudence, 593, Section 1037. It has been held that a couviction in a criminal case tried without a jury will not be reversed on appeal for admission of improper evidence unless prejudicial error is apparent. 3 American Jurisprudence, 595, Section 1041. (Cases cited.) In Ohio it has been held that greater freedom is afforded the court than the jury in hearing incompetent evidence. In Folliette v. Brett, 16 C. C. (N. S.), 452, on page 454, 31 C. D., 624, it is stated: “The test of the prejudice of such evidence produced before a judge, is the order or judgment thereafter made by him.” In Cook v. Penrhym State Co., 36 Ohio St., 135, 139, 38 Am. Rep., 568, it was held that no prejudice results if the finding is supported by competent evidence. In Gedeon v. Dinsmore, 24 Ohio Law Abs., 141, the second paragraph of the syllabus is as follows:

“The improper admission of testimony in an action tried before the court without a jury is not prejudicial when the court stated that he had not accepted such test as a basis for his findings, and restated this position in the findings of fact.”

It is apparent that the position of the trial judge and the jury is dissimilar respecting such matters.

In the instant case, at the first, opportunity, the trial judge did all within his power to refute any inference that he may have been influenced by the newspaper article or by the action of any persons mentioned in the article. Furthermore, after a consideration of the whole record, we are convinced that the conviction is supported by ample evidence. In view of the state of the record, to support a reversal, this court would be required to bold thaf as a matter of law the trial judge w'as prejudiced from the fact he read the newspaper article. We do not conceive this to be the law.

No other alleged errors are urged and we find no prejudicial error in the record. The judgment, is affirmed.

Judgment affirmed.

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


author: Stevens, J.

text:
    Vian, Appellant, v. The Sheffield Building & Development Co., Appellee.
    (No. 1158
    Decided June 14, 1948.)

      Messrs. Levin S Levin, for appellant.

      Mr. Joseph A. Ujhelyi, for appellee.
   Stevens, J.

This case is before this court as an appeal on questions of law and fact, and has been submitted upon the transcript of the evidence taken in the Court of Common Pleas and upon additional evidence introduced in this court.

The petition alleges plaintiff (appellant) to be the owner of extensive and valuable property in the village of Sheffield Lake, Ohio; that defendant (appellee) is the owner of about 23 acres of ground constituting an allotment known as Colonial Gardens; that defendant has disturbed the natural drainage of its lands by reason of the construction of approximately 100 homes, and that it has constructed ditches running from its lands to the lands of plaintiff, and is discharging its surface waters upon plaintiff’s lands; that the natural drainage of defendant’s lands is to the east; and that by reason of the ditches which defendant has created or enlarged, it has caused its surface water to flow to the west across other lands and onto plaintiff’s land, flooding the same and otherwise causing damage thereto.

It is further alleged that defendant is constructing a sewage disposal plant upon .its property, which plant will constitute a nuisance and depreciate the value of plaintiff’s lands adjacent thereto; that defendant proposes to discharge the effluent from the sewage disposal plant into an open ditch, and thence upon plaintiff’s lands and into the waters of plaintiff’s bathing beach; that the sewage will pollute and contaminate the air upon plaintiff’s lands, will constitute a health menace, and that it will befoul and render obnoxious the waters in plaintiff’s bathing beach.

It is further asserted that the surface waters from defendant’s lands flood the land upon which plaintiff’s home is constructed, and that the effluent from defendant’s sewage disposal plant will be discharged into the open ditch adjacent to plaintiff’s home, and will render that and other property owned by plaintiff uninhabitable.

Plaintiff prays for an injunction to prevent defendant from discharging surface water or sewage onto plaintiff’s lands, to enjoin defendant from proceeding with further construction of sewers or ditches for such purposes, and a mandatory injunction requiring defendant to close off the ditches and sewer already constructed, and for further relief.

Por answer, defendant admits the ownership of the Colonial Gardens Subdivision, and of that part of the Lake Shore Electric right of way extending from said subdivision to Sunset Country Club No. 2 Allotment; admits the existence of the Crehore and Woodward ditches and asserts that they were created for agricultural purposes; asserts that all of the drainage of its lands drains into the termination of these ditches, and that, by reason of their existence for more than seven years, they now constitute a natural watercourse; defendant then denies generally the allegations of the petition not admitted.

Plaintiff’s reply admits the existence of the Woodward ditch, running north and south on the westerly line of Lakewood Beach Allotment, asserts that the ditch was established for agricultural purposes, denies .that if empties into the Crehore ditch, and alleges that said ditch did not become a public watercourse because not established pursuant to the provisions of Section 6442 et seq., General Code, and particularly is not within the purview of Section 6500, General Code.

Plaintiff further states that, in order to enable the Woodward ditch to empty into the Crehore ditch, or into the ravine located on plaintiff’s property, it would be necessary to cross the property of the Sunset Country Club No. 2 Allotment, and thaf the Crehore ditch and ravine are 110 feet west of the westerly boundary of Lakewood Beach Allotment and that these properties have at all times been separately owned.

Plaintiff then states thaf defendant is now draining its lands westerly into a newly created ditch on the old right of way, and proposes to discharge the effluent from its sewage disposal plant into a private ditch located on the north side of the Nickel Plate right of way and has made no provision for the disposal of this effluent; that, by drainage uow established by artificial means, this effluent will flow along the private railroad ditch to its point of intersection with the Woodward ditch, thence north seven-tenths of a mile to a ditch along the southerly side of the Lake Shore Electric righf of way, thence westerly in a newly created ditch 11U feet from the westerly edge of Lakewood Beach Allotment to the Crehore ditch, thence upon the plaintiff’s lands and northerly a distance of 110 feet in a corrugated pipe, and thence into an open ravine on plaintiff’s land a distance of approximately 400 feet to Lake Erie.

Plaintiff alleges that the actions of the defendant constitute an unlawful invasion of his property and amount to a taking thereof without compensation or due process of law; that the defendant has received only conditional approval of its plans from the State Department of Health, and that the conditions were: First, that the village agree to maintain the plant; second, that the effluent be discharged into a public watercourse; that the plans submitted by defendant provide only for discharge of said effluent into an open ditch, and make no further provision for the disposal thereof; and that the village of Sheffield Lake has not agreed to maintain said plant.

The evidence as disclosed by the transcript of the evidence taken in the Court of Common Pleas and by the supplemental evidence introduced before this court, shows that:

Plaintiff for a number of years has operated a restaurant and night club on the north side of Lake Road in the village of Sheffield Lake, Ohio. Plaintiff’s business property is located about three-fourths of a mile east of the easterly limits of the city of Lorain, and consists of a parcel of land approximately 1000 feet in length and 500 feet deep, running between the shore of Lake Erie on the north, and Lake Road on the south, and being bounded on the east by a deep ravine, into which the Crehore ditch empties.

Upon this parcel of land, plaintiff also has located 10 cottages, which are rented for vacation purposes during the summer season.

Extending along the entire northerly edge of plaintiff’s property is a bathing beach, which is used by the patrons of plaintiff’s cottages during the summer vacation period.

On the south side of Lake Road, on a parcel of land approximately 300 by 400 feet, the plaintiff has erected a new brick home. The Crehore ditch runs through the easterly edge of this property. This house is located on sublots 2 to 8, inclusive, and 38 to 47, inclusive, of Block J of Sunset Country Club No. 2 Allotment. The plaintiff is also the owner of numerous other lots in Sunset Country Club No. 2 Allotment, and in Lakewood Beach Allotment, which latter is located immediately east of Sunset Country Club No. 2 Allotment.

The Colonial Gardens Allotment is located in outlot 43, and was formerly the old Seidel property. Approximately 23 acres of the Seidel property lie south of the Lake Road and north of the Nickel Plate tracks, and 2.14 acres lie north of the Lake Road. The defendant did not purchase the portion of the Seidel property lying north of Lake Road, and obtained no easement for drainage or sewers over the northerly portion of that property.

The Crehore ditch is a county ditch, commencing in Sheffield township in the city of Lorain, which crosses the Nickel Plate tracks and enters Sheffield Lake village near the westerly line of outlot 44 and extends in a northeasterly direction to a point opposite Dillewood avenue, where it turns north and enters the ravine located on the easterly side of plaintiff’s lake front property.

The Crehore ditch in Sunset Country Club No. 2 Allotment is enclosed by a corrugated metal pipe 36 inches in diameter. At the old Lake Shore Electric right of way the duct work has been destroyed by defendant in the course of its building operations.

At its intersection with the old Lake Shore Electric right of way, the Crehore ditch is approximately 110 feet from the westerly boundary of Lakewood Beach Allotment, which allotment is located in outlot 43. Crehore ditch is thus 110 feet west of outlot 43. Lakewood Beach Allotment is located between the Colonial Gardens Allotment and Sunset Country Club No. 2 Allotment. It is approximately 360 feet in width south of Lake Road, and 410 feet in width north of Lake Road.

Lakewood Beach Allotment was formerly the Wide-man farm, and Sunset Country Club No. 2 Allotment was formerly the Fannie Root farm.

There is conflicting testimony in this transcript as to the property drained by the Crehore ditch — plaintiff’s evidence tending to show that the surface waters from the Colonial Gardens Allotment drained into the Seidel farm ditch and hence along the right of way of the railroad to the north and to the east; and defendant’s testimony tending to show that the surface waters from said allotment found their way into the Crehore ditch.

The defendant has dug through Lakewood Beach Drive and put a drain tile a foot or so underground, to facilitate the flow of water' from said allotment to the west. Defendant has also constructed a pumping station upon the old electric right of way east of plaintiff’s home, and has constructed a settling basin and two 60 by 100 open sand filter beds at the south end of Colonial Gardens Allotment, directly opposite and approximately 30 feet east of sublots 85, 86, 87, 190, 191 and 193 of Lakewood Beach Allotment, of which sublots the plaintiff is the owner of an undivided one-half interest.

The defendant has also constructed a sanitary sewer in Colonial Gardens Allotment, running north and south and then turning west at the right of way to the pumping station. From the pumping station defendant has constructed a force main extending along the right of way to the Colonial Gardens Allotment and thence south to the settling basin.

At this pumping station, defendant has constructed an overflow outlet into the Crehore ditch, and defendant proposes to discharge the raw, untreated sewage into the Crehore ditch east of the plaintiff’s home, at any time when the pumping station becomes overtaxed or in disrepair. No provision has been made for a sanitary sewer pipe leading from the overflow pipe to the lake.

The effluent from the filter beds in the southwesterly portion of defendant’s property is to be discharged into the ditch along the north side of the Nickel Plate right of way. The defendant’s plans have made no provision for the further handling of this effluent. The evidence shows that the effluent in this ditch will flow westerly to the Woodward ditch, which is located on the westerly edge of Lakewood Beach Allotment, and thence north to the ditch on the southerly edge of the Lakewood Electric right of way; thence westerly along the newly created ditch to the Crehore ditch.

There is evidence that formerly there had been a farm ditch along the westerly line of the Seidel property, but that this ditch has been largely destroyed by the defendant’s operations. Had- this not been true, the effluent discharged into the Nickel Plate ditch would have returned to the Lake Shore right of way through the Seidel ditch.

The plans conditionally approved by the State Department of Health contain no provision for the ultimate discharge of the effluent from the disposal plant, other than into tJhe railroad ditch along the Nickel Plate right of way, which ditch is concededly railroad property and not a public watercourse. The pumping station built by the defendant is located on the right of way of the old Lake Shore Electric Railroad and is private property.

There will be odors emanating from the drainage filter beds at the southwest corner of defendant’s property, and adjacent property may, and probably will, be damaged, and the value of the lands to the west thereof be reduced.

There are but two factual questions which require resolution by this court:

1. Has plaintiff shown, by the required degree of proof, that defendant is diverting and casting upon plaintiff’s premises, surface water over and above the amount which would naturally flow thereon?

2. Has plaintiff shown, by requisite proof, a right to the issuance of an injunction restraining defendant from casting sewage and/or disposal plant effluent upon plaintiff’s premises?

As to the first question, the evidence, both lay and expert, as to the natural flow of the surface water, is in such conflict, that the members of the court find their minds in a state of equipoise thereon. Accordingly, we must hold that, upon that question, plaintiff has not shown that he is entitled to injunctive relief.

Upon the second question, defendant contends that the ditch along the northerly side of the Nickel Plate right of way is a public watercourse, and that the discharge of the effluent from its disposal plant is therefore legally permissible.

The law of Ohio, however, seems to be clear to the effect that one may not obtain by prescription, or otherwise than by purchase, a right to cast sewage upon the lands of another without his consent. City of Bucyrus v. State Department of Health, 120 Ohio St., 426, 166 N. E., 370; State, ex rel. Neal, Dir., v. Williams, Mayor, 120 Ohio St., 432, 166 N. E., 377; Kasch v. City of Akron, 100 Ohio St., 229, 126 N. E., 61; City of Mansfield v. Balliett, 65 Ohio St., 451, 63 N. E., 86, 58 L. R. A., 628.

And this would be true even though it were attempted to be done by the village under appropriate legislation.

The evidence herein is all to the effect that the effluent from defendant’s disposal system, first discharged into the open ditch along the Nickel Plate right of way, does, through natural and artificial means, find its way onto plaintiff’s land; it is likewise undisputed that plaintiff has at all times, and in a timely manner, vigorously objected to such burden being placed upon his premises.

We find that such conduct by defendant, established by the requisite quantum of proof, gives rise to a situation which not only justifies, but requires, a court of equity to intervene by means of injunction.

A decree may be prepared, enjoining defendant from so discharging the effluent from its filter beds as to cause the same to be cast upon plaintiff’s land, and further enjoining defendant from permitting the overflow from its sewage wet well to drain onto plaintiff’s premises.

As to depreciation of the value of premises adjacent to defendant’s sewage installation, we are of the opinion that an adequate remedy at law is available to the persons injured thereby, and that the situation in that connection is not such as to warrant equitable intervention by this court.

Decree accordlingly.

Doyle, P. J., and Hunsicker, J., concur.


text:
    Caswell, Appellant, v. Lermann et al., Appellees.
    (No. 615
    Decided October 18, 1948.)

      Messrs. Flynn, Py & Kruse, for appellant.

      Messrs. Murray & Murray and Mr. A. F. Lermann, for appellees.
   Carpenter, J.

This was an action to contest a will. It was commenced on February 4, 1947. At the close of plaintiff’s case, a motion for a directed verdict for defendants was granted and judgment was entered thereon. This appeal on questions of law was taken by plaintiff.

A motion to dismiss the appeal was filed by defendants. This was submitted to the court at the same time the appeal on the merits was argued.

The basis of the motion is that the appeal “is not taken from the final judgment.”

The following material facts are undisputed:

The judgment was entered on February 11, 1948; a motion for a new trial was timely filed on February 20th; the journal entry overruling the motion on June 25th, and the notice of appeal was seasonably filed on July 12th and the appeal was “from a judgment rendered by the Court of Common Pleas * * ' on the 25th day of June, 1948.”

As the court understands the defendants’ motion to dismiss, it is not contended that the motion for a new trial or the notice of appeal was not filed in time. The sole contention is that because the notice of appeal specifies that the appeal was taken from the order overruling the motion for a new trial and not from the judgment, “that therefore this matter is not appeal-able matter as made and provided for by Jaw.”

On one or the other of two bases, this motion may be overruled:

1. That by the act of the General Assembly passed June 28, 1945, 121 Ohio Laws, 366 “relative to the definition of a new trial and time for perfecting appeal,” an order overruling a motion for a new trial and vacating a judgment is a final order as defined by Section 12223-2, General Code, and hence one from which an appeal may be taken.

In the recent decision of McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225, the court reasoned that by the terms of that section of the General Code, as amended, granting a motion for a new trial now includes the vacation of the previously entered judgment; hence under the rule announced in Cox v. Cox, 104 Ohio St., 611, 136 N. E., 823, the order overruling such motion is a final order and the proper subject of an appeal. To the same effect, by the same court, is Williams v. Martin, 82 Ohio App., 395, 81 N. E. (2d), 806.

2. But if that conclusion is not correct, and this notice of appeal should have specified the judgment of February 11th as the action of the court from which the appeal should have been taken, no prejudice resulted to the defendants.

Immediately following the enactment of the Appellate Procedure Act in 1935, this court and some other Courts of Appeals tended to apply rather strict and literal interpretations of the terms and provisions of that act in respect to the procedure to effect an appeal. By a series of decisions, the Supreme Court has disapproved that practice and made manifest its purpose to give liberal construction to appellate matters as is directed by Section 10214, General Code.

These decisions started with Loos v. Wheeling & Lake Erie Ry. Co., 134 Ohio St., 321, 16 N. E. (2d), 467, and Capital Loan & Savings Co. v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450, decided on the same day. In the latter case there was no formal notice of appeal filed. The journal entry overruling the motion for a new trial closed with the statement “and defendants hereby give notice of appeal.” This entry was approved by both counsel. With two judges dissenting, this was held sufficient. In his opinion, Judge Myers said:

“Although not complying in a technical sense with Section 12223-5, General Code, it appears to have served the purpose intended.
“Manifestly, the purpose of such a notice is to apprise the opposite party of the taking of an appeal. Since such journal entry was approved by counsel for both parties, both had actual notice thereof. Under the circumstances plaintiff could not be prejudiced or taken by surprise. There was only one judgment and only one court from which and to which an appeal could be taken. ”

In Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210, in two cases, specific dates were given for the judgments from which the appeals were taken. They were both wrong, yet, following Couk v. Ocean Accident & Guarantee Corp., Ltd., 138 Ohio St., 110, 33 N. E. (2d), 9, the appeals were sustained and the right of appellants to amend the notices was recognized. In the recent decision of In re Guardianship of Wisner, 148 Ohio St., 31, 72 N. E. (2d), 751, these decisions were cited and followed, and the importance of liberality in procedural matters, as required by Section 10214, General Code, was emphasized.

In Bank of Elmore Co. v. Damschroder, 69 Ohio App., 15, 42 N. E. (2d), 781, and the recent decision in Williams county, American Security Corp. v. Martin, 83 Ohio App., 477, 84 N. E. (2d), 306, this court followed the above cited decisions. In each of those cases, as in this case, there was but one judgment and one notice of appeal which was timely filed and served to inform the defendants of the plaintiff’s intention to appeal to the Court of Appeals. No claim is made here that prejudice or surprise has resulted to defendants. The motion to dismiss the appeal will be overruled.

The will in contest was signed by Frank S. Latham as testator on August 3, 1943. He died on August 6, 1946. The pleadings admit that the will was duly probated on September 6, 1946.

The plaintiff’s interest in the will was that by a former will executed December 15, 1939, he was given a beneficial interest which would be destroyed by this will. This was a sufficient interest to qualify him to bring this action. Kennedy, Exr., v. Walcutt, 118 Ohio St., 442, 161 N. E., 336. Latham was a widower and had no relatives. Plaintiff, Myron J. Caswell, and the testator were very aged men, had been friends and had business dealings with each other for many years. Mr. Latham had acknowledged some indebtedness to plaintiff.

For some years before 1943, Mr. Latham’s sight and hearing had been failing, and at the time of the execution of this will, both were quite dim. Since 1937, defendant Albert F. Lermann had been Latham’s attorney. For him he had drafted the 1939, will. From the evidence it appears that shortly before the will in contest was drawn, Latham discussed with Lermann the changes he wanted to make in his will. These included the omission of the legacy to plaintiff and the inclusion of one to Lermann, who was also made one of two residuary beneficiaries. In other respects, there was little change from the 1939 will.

Lermann, so far as this record shows, without direction from Latham to do so, caused the new will to be drafted by another attorney who, with Lermann, attended its execution at testator’s home. He, and a neighbor woman who was called in for the purpose, acted as the attesting witnesses.

On the trial, the defendants placed in evidence the will and record of probate and rested. Section 12085, General Code. At the close of plaintiff’s evidence, the court directed the verdict for defendants. This is the only material assignment of error.

On three grounds, the contestant now urges that on his evidence, the court erred in this order in that he had introduced some evidence to support the following:

1. The testator lacked mental capacity to make the will;

2. Undue influence was exercised over the testator by his lawyer, Lermann, to make him a beneficiary;, and

3. Testator being blind and deaf, proper formalities-in the execution of the will were not. observed.

By Section 12083, General Code, the order of probate was “prima facie evidence of the due attestation,, execution, and validity of the will.”

On proof of the “order of probate,” the court waff bound to presume the will valid until some evidence was presented by plaintiff which tended to overcome, not only that presumption, but also any evidence in favor of the will which had come into the record.

By what measure is that to be determined? Clark v. McFarland, 99 Ohio St., 100, 124 N. E., 164, was a will contest, and the court said a scintilla of evidence was enough to send the case to the jury. In Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, Clark v. McFarland was expressly overruled, and the test set up whether “reasonable minds may reach different conclusions upon any question of fact.”

This is now the standard by which plaintiff’s evidence must be measured on each of the three phases above stated.

1. In granting the direction, the trial court pointed out that the only evidence of impairment in the testator’s mental capacity at the time the will was executed was in his sight and hearing, both due to hi& advanced age. The judge’s comment was ‘‘ He couldn’t see and he couldn’t hear, but nobody has said that he couldn’t think, and that he couldn’t think straight.”' This court agrees with that summation of the evidenee. Its conclusion is that Latham’s mental capacity at that time met the tests laid down in Niemes v. Niemes, 97 Ohio St., 145, 119 N. E., 503; Hogan v. Hogan, 57 Ohio App., 357, 14 N. E. (2d), 358.

2. The court recognizes the strict ethics the law imposes upon a lawyer in ail his professional dealings with a client, and especially his duty not to take advantage of that relationship for his own gain. But, in the absence of some evidence that Lermann did so use or abuse his position of trust, the court could not presume that he did so merely because of that relationship. The trial court saw no such evidence, and this court has scrutinized the record in vain for it. In fact, the plaintiff has not pointed out anything he claims expressly does this. In connection with this question, and also as to mental capacity, it is of some moment that the testator lived three years after this will was executed.

3. As to the formality of executing the will, all the evidence is to the effect that the testator and witnesses each signed in the presence of each other. At that time there was present with the testator, Lermann, a Mrs. Sheets, apparently Mr. Latham’s housekeeper, a neighbor woman who was called in as an attesting witness, and the lawyer who drew the will and witnessed it. Although that lawyer was of counsel in the trial and present at it, he was not called as a witness. All the others were, and Mr. Lermann and Mrs. Sheets, being parties, were cross-examined. No inquiry was made as to what was done or said by or to the testator at any time before that, nor was any circumstance shown by the evidence tending to indicate that testator did not know what he was doing when he made his scrawling signature to the will.

In Cummings v. Nichols, 53 Ohio App., 520, 5 N. E. (2d), 923; Hogan v. Hogan, 57 Ohio App., 357, 14 N. E. (2d), 358; and Cave v. McLean, 66 Ohio App., 196, 32 N. E. (2d), 581, the courts discussed these problems of proof in will contests in their relation to the evidence statute. In the latter case, the scrivener who drafted the will was the testatrix’s attorney and was= given a large interest in her property. In the syllabus it is said:

“No presumption of undue influence arises as a result of a beneficiary writing the will.”

On no one of the three phases of the proof was there any substantial evidence to overcome the “prima facie evidence of the due attestation, execution, and validity of the will ’ ’ made by the order of probate. The court had no alternative but to make the order it did, and its judgment on that order will be affirmed.

Judgment affirmed.

Conn and Fess, JJ., concur.


author: Hornbeck, J.

text:
    The State, ex rel. Gill, Appellee, v. Volz, Appellant.
    (No. 4139
    Decided October 5, 1948.)

      Mr. Gale Li. King, for appellee.

      Mr. Clarence M. Addison, for appellant.
   Hornbeck, J.

This appeal on questions of law is from a judgment fixing payment for support of a child, maintenance and necessary expenses of the mother of the child caused by her pregnancy and parturition. The judgment was made following a verdict of a: jury, finding the defendant guilty on a complaint that he was the father of a bastard child born to Joan Ruth Gill.

Chronologically, the material proceedings occurred as follows: Complaint filed on June 28, 1946; verdict of the jury on September 29, 1947; motion for new trial on October 1, 1947; judgment from which the appeal is prosecuted on December 19, 1947. Six errors are assigned, three of which are pressed in the brief of the defendant, appellant herein, and in oral argument. These three are :

(1) The court erred in accepting a verdict of less than 12 jurors.

(2) The court erred in not entering any judgment after the return of the verdict of the jury, adjudging the defendant to be the father of the bastard child.

(3) The court erred in entering a money judgment for the support of the bastard child from date of its birth to the date of the trial, and not entering any judgment at all against, the defendant for the reason that he had not been adjudged the father of the bastard child.

The first question, namely, the invalidity of the verdict signed by less than 12 members of the jury was passed on by the trial judge on a motion for new trial filed after the verdict and before any written entry carrying the verdict into formal adjudication. If defendant’s contention as to the second assignment of error, namely, that there must be an adjudication on the verdict of guilty, is well made, then the motion for new trial directed to the verdict of the jury was untimely filed and any pronouncement thereunder is without any formal effect as an adjudication. Section 11578, General Code, which is controlling of the matter, requires that the motion for new trial be made within ten days after the journal entry or final order, judgment or decree has been approved by the court in writing and filed with the clérk for journalization. If the proceeding is a civil action, none of the questions sought to be raised by the motion for new' trial could be properly presented because no judgment had been entered on the verdict. Section 11576-1, General Code.

However, counsel and the court, apparently by common consent, gave consideration to the motion for new' trial one of the grounds of which was the question whether a bastardy proceeding was such a civil action as would support a verdict returned by nine or more of the jurors.

We have considered and given attention to the memorandum opinion of Judge Leach, who passed on the first motion for new trial, and are in accord with the conclusion which he has reached and upon the authority, in the main, of the cases which be has, cited, namely, Kline v. State, ex rel. St. Clair, 20 Ohio App., 191, 151 N. E., 802; Schneider v. State, ex rel. Shorf, 33 Ohio App., 125, 168 N. E., 568; Reams v. State, ex rel. Favors, 53 Ohio App., 19, 4 N. E. (2d), 151; State, ex rel. Clutts, v. Dolan, 20 N. P. (N. S.), 478, 28 O. D., 353; Durst v. Griffith, 43 Ohio App., 44, 182 N. E., 519; State, ex rel. Pennington, v. Barger, 74 Ohio App., 58, 57 N. E. (2d), 815.

No one of those cases is decided by the Supreme Court but they are from appellate courts and nisi prius courts of eminence and there is such unanimity of opinion and judgment as to be most compelling on this court, especially as there is no case to the contrary to which we have been cited or of which we have any knowledge. Finally, we heretofore decided the question in State, ex rel. Merrill, v. Moore, 84 Ohio App., 49, 52 Ohio Law Abs., 301, 302, 82 N. E. (2d), 323, and are of opinion that the judgment is correct. An early case which went to the Supreme Court is that of Grieve v. Freytag, 2 W. L. B., 93, 7 Dec. Rep., 304, which was reviewed in 31 Ohio St., 147, and the judgment reversed. In that case the trial court had expressly held that bastardy was a civil proceeding. Whether this was urged as error in the Supreme Court does not appear in the report but it was not assigned as a ground for the reversal.

The second error assigned is that the court erred in not entering any judgment upon the verdict of the jury. We are constrained to hold that this assignment is well made. It is more vital that there be a judgment in view of the fact that we hold that the action here is civil. It is almost a truism to say that until an order is entered upon a verdict or finding there is no judgment of the court. A reading of the controlling statute compels the conclusion that an adjudication on the verdict is mandatory. Section 12123, General Code, provides:

“If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the illegitimate child if said child is alive and the court shall thereupon adjudge that be pay to the complainant such sum as the court may find to be necessary, * * (Emphasis ours.)

It is manifest that it is a requisite that there be a formal adjudication that the accused is the reputed father of the illegitimate child and this is a prerequisite of the further adjudication as to the payment of support, maintenance, etc. Devinney v. State, Wright’s, 564.

The third error assigned is in the entering of a money judgment for the support of the bastard child from the date of its birth to the date of the trial.

The child was born on August 21, 1946, trial was had, beginning on September 26, 1947, and support and maintenance order was made on December 19, 1947. So that, between the date of the birth and the date of the support order, some 16 months elapsed. It is the claim of defendant that the controlling statute, Section 12123, General Code, does not authorize an award for support and maintenance of the child for any period of time prior to verdict.

The pertinent parts of Section 12123, General Code, are:

“If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the illegitimate child if said child is alive, and the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution, and a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age. In the event said child is not born alive, or is not living at the time of said plea or finding of guilty, the court shall order the accused to pay the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expense caused by pregnancy, including therein a reasonable amount for maintenance of said child until its death, and its funeral expenses. * *

Counsel for both parties cite State, ex rel. Beebe, v. Cowley, 116 Ohio St., 377, 156 N. E., 214, and State, ex rel. Griffin, v. Zimmerman, 67 Ohio App., 272, 36 N. E. (2d), 808, and defendant relies on this latter case.

When the Cowley case was decided, Section 12123, General Code, was plain in its purpose to restrict the judgment to support maintenance and expense money caused by pregnancy and childbirth for the complainant. only. No provision whatever was made or intended to be made for the support or maintenance of the child.

Manifestly, the basic intent of Section 12123, General Code, was changed when it was amended and reenacted in its present form. As the section now reads, one of its dominant purposes is to provide support and maintenance for the child up to 18 years of age in’ the bastardy judgment and this obligation is placed upon the putative father. Is it probable the Legislature intended that the father should be liable fqr such obligation only after adjudication? We believe that such a holding kills the central purpose of the section as amended. As Judge Crow said in the dissenting opinion in the Zimmerman ease, the words “weekly sum” as used in the section, fixing the time when the support, of a living child shall begin, presents the only ambiguous feature of the statute.

The provision for maintenance of the child, if not born alive or not living at the time of the adjudication, that the court shall fix a reasonable sum for maintenance of the child until its death, is consistent with the construction that in all parts of the section it is intended (hat the obligation upon the father for the support and maintenance of the child shall begin at birth and shall continue until 18 years of age or death, if it intervenes sooner, and in either instance this shall be recognized in the money order made by the court. The provision for reasonable “weekly sum” should not, in our judgment, prevent the application of the manifest purpose of the section. The trial court should make the provision for the child on the basis of a weekly sum from birth, which amount should be computed to the date of the support order and thereafter until 18 years of age.

The bastardy statutes have throughout the years been shaped largely with the purpose of making the most satisfactory enactment to protect both the mother and the child. Prior to the 1923 amendment to Section 12123, General Code, which amendment was under consideration in the Cowley case when the accused was adjudged the putative father, the court fixed a lump sum which the father was required to pay to the mother for her support and the support and maintenance of the child. Because of the inadequacy of these awards or the improvidence or necessity of the mother, these sums were soon dissipated and thereafter there was no remedy afforded whereby society could be protected against the obligation of maintaining the child if the mother was unable to do so.

In Creisar v. State, 97 Ohio St., 16, 119 N. E., 128, it was held that there could be no prosecution against the father of an illegitimate minor child under 18 years of age for failing to care for, support and maintain such minor child. The section, as amended in 1923, and which the court had under consideration in the Cowley case, took away any authority of the court to make a money award for the support and maintenance of the child but assured to the state the right to prosecute the father for nonsupport. The present section not only assures money award for the support and maintenance of the child bnt also retains the provision that snch award is no bar to the prosecution of the accused for failure to support his illegitimate child under the applicable provision of any statute. The whole trend of the Legislation is to lend the assistance of the law to the enforcement against the father of his obligation to support and maintain his child and it is not probable, and to us it seems a strained construction of the statute to hold, that it was intended this obligation should not begin from the date of the birth of the child.

There is conflict between our conclusion and the judgment reached in the Zimmerman ease and we will, if required, make the necessary certificate of conflict to the Supreme Court.

Since this opinion was written, the case of Willis v. Wilson, 83 Ohio App., 311, 80 N. E. (2d), 175, decided by the Court of Appeals for Lawrence county, comes to our attention, wherein Section 12123, General Code, is construed as we have interpreted it.

We have considered the other errors assigned and do not find them well made. The judgment will be reversed.

Plaintiff has filed a motion for an order of diminution of the record and tenders an entry which we are requested to direct the trial judge to enter. The motion was urged only in the event that we decided the judgment on the verdict should adjudge the defendant to be the putative father of the child. Before the order of this court on this appeal is journalized we will dispose of the motion and give counsel for the defendant five days to express his written opinion as to the right of the plaintiff to have the motion sustained.

Judgment reversed.

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