text:
    Motorists Mutual Ins. Co. et al., Appellees, v. Calland, Appellant.

      (No. 470
    Decided September 18, 1952.)

      Messrs. Berry, McCulloch, Felger é Fite, for appellees.

      Messrs. Shipman <& Shipman and Mr. William M. Earrelson, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Miami County, which reversed the Municipal Court of Piqua, Ohio.

The action grew out of an automobile collision. At the time and place of the collision, the plaintiff’s automobile was parked on the south side of a road which extended in a northeasterly and southwesterly direction. The left wheels of plaintiff’s automobile were about one foot on the paved portion of such road and the automobile was headed in a northeasterly direction. The defendant was driving his automobile in a southwesterly direction and crossed from the southbound traffic lane to the north-bound traffic lane and collided with plaintiff’s automobile causing damage.

Plaintiff alleged that defendant was negligent (1) by operating his automobile at a speed which was greater than reasonable and proper; (2) by operating his automobile on the south side of the road; (3) by failing to keep his automobile under proper control; and (4) by failing to slacken his speed or divert his automobile to avoid striking the automobile of the plaintiff. The defendant in his answer admitted that he was involved in an automobile accident at the time and place as indicated in the petition involving the automobile of the plaintiff'.

Upon the trial of the case, the plaintiff was unable to produce any eye witnesses to the accident. There was submitted proof that defendant’s automobile was seen approaching the place of the accident some distance north of the place where the plaintiff’s automobile was parked. There is evidence and the defendant in his answer admitted that the two automobiles collided. The evidence shows further that the plaintiff’s automobile was parked as far off the road as possible. The evidence shows also that the defendant’s automobile was being driven southwesterly on the north side of the road immediately before the collision, and that plaintiff’s automobile was parked on the south side of the road. The cause of the collision was unexplained by the evidence. At the close of the plaintiff’s case, a motion to dismiss was sustained by the trial court on the ground of insufficient evidence.

Upon appeal to the Common Pleas Court, the judgment was reversed by reason of the applicability of the doctrine of res ipsa loquitur.

Does the evidence presented require the application of the doctrine of res ipsa loquitur ? We think it does. The cause of the collision was unexplained, and the defendant had control of the automobile which caused the collision. In 29 Ohio Jurisprudence, 631, Section 153, it is stated:

“The doctrine of res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford sufficient or reasonable evidence to support a recovery, in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. ’ ’

The evidence presented in this case meets the requirements for the proper application of the doctrine, and the trial court should have overruled the motion to dismiss.

The doctrine of res ipsa loquitur is a rule of evidence and need not be pleaded. The plaintiff may rely upon the application of the doctrine of res ipsa loquitur if the evidence presented requires its application, even though the plaintiff in the petition has alleged specific acts of negligence. This court in Pierce v. Gooding Amusement Co., 55 Ohio Law Abs., 556, 90 N. E. (2d), 585, held:

“A plaintiff who pleads and proves the requisite operative facts has the right to rely on the doctrine of res ipsa loquitur notwithstanding the fact that specific negligence is pleaded but not proved.”

See, also, 29 Ohio Jurisprudence, 650, Section 164.

In our opinion, the Common Pleas Court correctly applied the doctrine and reversed the judgment of the trial court. Finding no error in the record prejudicial to the appellant, the judgment is affirmed, and the cause is remanded.

Judgment affirmed.

IIornbbck, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. O’Leary, Appellant.
    (No. 1260
    Decided November 26, 1952.)

      Mr. Paul Mihus, prosecuting attorney, and Mr. Harold Ewing, for appellee.

      Mr. Milton Firestone and Mr. Wm. F. Waldeisen, for appellant.
   Doyle, J.

This is an appeal from a judgment entered upon a jury’s verdict of “guilty” on three counts of an indictment, each charging perjury, returned by the grand jury of Lorain county against Michael J. O’Leary.

The appellant, O’Leary, was charged in the first count with committing perjury when testifying under oath before S. A. Boltz, “a duly commissioned, qualified and acting examiner in and for the Bureau of Inspection and Supervision of Public Offices, Department of Auditor of State, of the State of Ohio.” The false testimony alleged to be material to the examination of “the books and affairs of the village of Sheffield Lake, Ohio, ’ ’ was stated as follows:

“That he, the said Michael J. O’Leary, was acquainted with a man named H. L. Allen who was 45 or 50 years old, American born, about 5 feet 8 or 10 inches tall, and weighing about 160 or 170 pounds; that he, the said Michael J. O’Leary, was present when the said H. L. Allen met with and had a discussion with Mr. Perry Poulos about buying a parcel of real estate owned by Perry and Matilda Poulos in Sheffield Lake Village, and known as being a part of Original Township Lot No. 36 in said village; that said H. L. Allen purchased said property from said Perry and Matilda Poulos; and that he, the said Michael J. O’Leary, was present when the said H. L. Allen executed and acknowledged a deed conveying said premises to the Village of Sheffield Lake, Ohio.”

The second count charged that he falsely testified before the said examiner, in that:

“ * * * he had known a man named H. L. Allen for a year and a half; that said H. L. Allen purchased a parcel of real estate known as part of Original Township Lot No. 36 in the Village of Sheffield Lake, Ohio, from Perry and Matilda Poulos, and later sold the same to the Village of Sheffield Lake, Ohio; and that the said H. L. Allen was not a fictitious name used in connection with said transaction.”

The third count charged perjury by alleging false testimony given before the grand jury of Lorain county in the following terms:

“That he, the said Michael J. O’Leary, was acquainted with a man named H. L. Allen; that he, the said Michael J. 0 ’Leary, took said H. L. Allen to Castalia, Ohio, to discuss with one Perry Poulos the purchase of a parcel of real estate owned by said Perry and Matilda Poulos in Sheffield Lake Village, Ohio, and known as being a part of Original Township Lot No. 36 in said Village; that he, the said Michael J. O’Leary, was present in Castalia, Ohio, when said H. L. Allen and said Perry Poulos discussed the purchase by said H. L. Allen of said parcel of real estate, and that on this occasion said H. L. Allen gave to said Perry Poulos a one hundred dollar deposit on said lot; that he, the said Michael J. O’Leary, took said H. L. Allen to Castalia, Ohio, on a second occasion to get the signatures of Perry and Matilda Poulos on a deed to said lot; that said H. L. Allen purchased said lot from Perry and Matilda Poulos; that he, the said Michael J. O’Leary, was present in a Council meeting of the Village of Sheffield Lake, Ohio, at which meeting said H. L. Allen gave a description of said lot to said Village Council and offered to sell said lot to the village; that he, the said Michael J. O’Leary, was present when H. L. Allen executed and acknowledged the deed of said lot to said Village of Sheffield Lake, Ohio. ’ ’

The record of testimony and the exhibits depict a condition in the administration of affairs of the Village of Sheffield Lake to have required, in the orderly processes of government, an examination into the honesty and regularity of one of its transactions. The state auditor’s office undertook to make such an examination. In brief, the following situation was shown to exist:

As a part of the development of a sewage disposal plant for the village, it was necessary that land. be acquired for a site. The land ultimately selected had been owned by a couple named Perry and Matilda Poulos, who, approximately three weeks before the sale to the village, had, by deed, granted the land.to one H. L. Allen. The purchase price paid to the Pouloses and supposedly paid by Allen was $4,000. The appellant, O’Leary, an unlicensed dealer in real estate, negotiated the sale. About three weeks later, Allen deeded the land to the village for approximately $8,000, and the appellant received the sum of $500 from Allen for his part in the transaction. Under this and many other suspicious circumstances, the investigation was directed toward the determination of whether H. L. Allen was a “dummy” fictitious character and whether the name “Allen” was used as a “cover” by village officials; and toward the determination of who had prior knowledge of the location of the site and who raised the money to pay the Poulos family — with the result that a handsome profit upon the ultimate sale to the village was realized.

It is a crime in this state for anyone to wilfully and corruptly testify to a falsehood as to a material matter in a proceeding before an officer created by law, or a duly impaneled grand jury, or in a matter in relation to which an oath is authorized by law, following the lawful administration of an oath to such person. Section 12842, General Code. To constitute the crime, the subject matter of the false testimony must be in respect to a matter material in the proceeding. McCaffrey v. State, 105 Ohio St., 508, 138 N. E., 61.

It is the duty of the Bureau of Inspection and Supervision of Public Offices to examine village offices within this state (Section 274 et seq., General Code), and in such examination “inquiry shall be made into the methods, accuracy and legality of the accounts, records, files and reports of. the office, whether the laws, ordinances and orders pertaining to the office have been observed, and whether, the requirements of the bureau, have been complied with” (Section 284, General Code).

Specific power is given a state examiner in the Bureau of Inspection and Supervision of Public Offices to compel the attendance of witnesses and the production of books and papers, and to administer oaths in the process of an investigation. Section 285, General Code.

It is a crime for a village official to be interested in a contract for the purchase of property for the use of the village, or to be interested in the profits from such a contract. Sections 12910, 12911, 12912, General Code.

From the foregoing references to the statutory law of this state, it is obvious that state examiner S. A. Boltz was within the orbit of Ms powers when he brought the appellant before him, administered an oath, and proceeded to inquire into the identity of the person who had sold a parcel of real property to the village, and who had reaped such a quick profit. It is reasonable to suppose that someone with knowledge of the location of the site before it became public knowledge, may have been interested in the contract for purchase, or in the profits, and there was reasonable grounds for suspicion that the “someone” may have been a public official and that a crime had been committed. False testimony directed to the identity of the owner of the land and the grantor thereof to the village was testimony not only relevant to a material matter in the proceeding, but in fact went to the very heart of the inquiry. The very purpose of the investigation was to determine whether PI. L. Allen was a real person or was a name used to conceal the real party or parties in interest, and, if so, who the real parties in interest were. Were they public officials ?

The verdict of the jury indicates that it disbelieved the appellant’s testimony describing his various encounters and business connections with H. L. Allen, and his statements relative to. the activities of H. L. Allen as set forth in the indictments. After a review of the record of evidence, this court is unanimously of the opinion that such a finding by the jury is sustained by the evidence, and that the verdict of “guilty” is neither contrary to law nor manifestly against the weight of the evidence.

It has been stated above that the criminal offense of perjury could be properly established through false testimony on the subject matter of the inquiry before the examiner. Of course, the same statement applies to false testimony under oath given before the grand jury.

There are many grounds of error advanced, which it is claimed are prejudicial to the rights of the appellant. Examination has been made of them all, and we find none of a prejudicial character. We find that the defendant has had a fair trial, and the record sustains the jury’s verdict. Section 13449-5, General Code.

The judgment is affirmed.

Judgment affirmed.

Hunsickee, P. J., and Stevens, J., concur.


author: McClintock, P. J. Montgomery, J.,

text:
    Bolen, Appellant, v. Humes et al., Exrs., Appellees.

      (No. 335
    Decided November 27, 1951.)

      Mr. Roland A. Sedgwick, for appellant.

      Mr. H. Lloyd Jones, for appellees.
   McClintock, P. J.

This is an appeal on questions of law from a judgment of the Probate Court of Delaware County. The facts as shown by the record are as follows:

Harry Irwin married Louise Pollock on June 25, 1942, and died April 10, 1951. Several weeks prior to his marriage to Louise Pollock, he gave her a diamond ring. Irwin obtained the ring from the sister of his first wife, who had borrowed some money from him, and he asked Louise Pollock whether she was willing to accept this ring instead of a new one, to which she agreed. This conversation occurred while Harry Irwin and Louise Pollock were sitting in an automobile in the yard of the home where Louise Pollock lived. This ring had three stones set in a white gold mounting.

Before their marriage they had planned to take a wedding trip to Cedar Point, and she asked Irwin to put the ring back in the safe-deposit box as it was too valuable to take to Cedar Point. This conversation occurred the day before their marriage. She claims she never wore the ring since that time for the reason that after their marriage they went back to the farm during the early part of the war, that she was busy feeding chickens, washing milk cans, etc., that they had considerable hired help at that time, and that she did not want this expensive ring on the farm.

After their marriage they went to the bank and arranged for her to sign his name on checks, and they went through the box and the ring was still there. Afterwards, on October 6, 1949, Irwin executed a will, item 2 of which reads as follows:

“I give and bequeath my diamond ring to Doris Rhodes.”

Defendants-appellees qualified as executors of Irwin’s estate, made an inventory and appraisement of his estate, and did not list this ring, but wrote on the inventory: “Ring not appraised. Was given to Louise P. Irwin as engagement ring.”

Plaintiff-appellant, Doris Rhodes (Bolen), filed exceptions to the inventory, claiming that this ring was her property and not the property of Mrs. Irwin. Another exception to the inventory was filed by the plaintiff hut was abandoned at the time of trial.

After decedent’s death, the ring was found in the safe-deposit box of Harry S. Irwin. He was the only person who had access to this box. It appears further from the record that Louise Pollock, prior to her marriage, had worn the ring. Several witnesses testified to this fact. There is no question from a reading of this record that the ring was properly identified as the ring that was given to her prior to her marriage.

After hearing, the Prohate Court overruled the exceptions to the inventory, and plaintiff appealed to this court on questions of law, alleging two assignments of error, to wit:

“1. That the finding and judgment of the court is contrary to the law and facts in respect to the request for a directed verdict.

“2. That the finding and judgment of the court is contrary to law in overruling the objections of the plaintiff-appellant to the admission of the testimony of Louise Pollock Irwin. ’ ’

The only issue in this case is the question of the ownership of the ring. It is the claim of the executors that the ring is the property of Louise P. Irwin, the widow, by virtue of the fact that it was given to her as an engagement ring, and that title to the ring still remains in her, although it was found in Irwin’s safe-deposit box where it had been placed for safe keeping.

On the question as to whether or not this was a valid gift inter vivos, we cite Bolles v. Toledo Trust Co., Exr., 132 Ohio St., 21, 4 N. E. (2d), 917:

“1. The essentials of a valid gift inter vivos are (1) an intention on the part of the donor to transfer the title and right of possession of the particular property to the donee then and there and (2), in pursuance of such intention, a delivery by the donor to the donee of the subject-matter of the gift to the extent practicable or possible, considering its nature, with relinquishment of ownership, dominion and control over it.

“2. To support such a gift, clear and convincing evidence is required.”

As to the burden of proof in this case, we cite Steward v. Barry, Admr., 102 Ohio St., 129, 131 N. E., 492.

“3. Where an attempt is made to charge the administrator with more assets than are charged by the appraisement and the account, the burden of proving the existence of such additional assets is upon the objector.

“4. When the correctness of a credit taken by an administrator in his account is challenged, the burden of establishing the validity of such credit is upon such administrator.”

It is claimed by plaintiff that Louise Irwin was disqualified from testifying by the provision of Section 11495, General Code, which reads as follows:

“A party shall hot testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person except: * * * ”

It is contended also that the witness is disqualified by reason of Section 11494, General Code, which, in part, reads as follows:

The following persons shall not testify in certain respects:

U # # #

“3. Husband or wife, concerning any communication made by one to the other, or an act done by either in the presence of,the other, during coverture, unless the communication was made, or act done, in the known presence or hearing of a third person competent to be a witness. The rule shall be the same if the marital relation has ceased to exist.”

As to her testifying with reference to this conversation being in violation of Section 11495, it is to be noted that Louise Irwin is not a party to this suit and would not come within the provisions of Section 11495. On this question we cite Hubbell v. Hubbell, 22 Ohio St., 208, 221, as follows:

“On these questions we are entirely satisfied, not only from the light of decided cases (see 13 Ohio St., 263; 17 Ohio St., 640 and 18 Ohio St., 73), but upon the true construction of the statute, that both the party disqualified and the adverse party referred to must be parties to the record, and adversely interested in the determination of the issues of fact, and they must be so related to the action and the issues at the time of trial, but it matters not whether they stand upon the same side or opposite sides of the record.”

See, also, In re Estate of Butler, 137 Ohio St., 96, at page 113, 28 N. E. (2d), 186:

“Section 11493, General Code, abrogates the common-law rule as to the competency of witnesses and makes all persons having sufficient mentality and comprehension competent to testify in all cases. Sections 11494 and 11495, General Code, are exceptions to Section 11493, General Code, and must be strictly construed. Stream v. Barnard, Exrx., 120 Ohio St., 206, 211, 165 N. E., 727. A party as referred to in the statute must be a party to the record and not simply interested in the result of the litigation. Cockley Milling Co. v. Bunn, Admx., 75 Ohio St., 270, 274, 79 N. E., 478; Hubbell v. Hubbell, 22 Ohio St., 208; Powell, Admx., v. Powell, Admx., 78 Ohio St., 331, 85 N. E., 541; Loney v. Walker, Admr., 102 Ohio St., 18, 130 N. E., 158.”

In view of these authorities, to admit the testimony of Louise Pollock Irwin was not in violation of Section 11495, General Code.

As to the admission of her testimony being in violation of Section 11494, General Code, it is to be noted that that section refers to any communication during coverture. The testimony of Louise Pollock Irwin related to conversations had prior to her marriage. We cite 42 Ohio Jurisprudence, 245, Section 241, as follows:

“[Necessity of Existence of Marital Relation at Time of Act or Communication.] It is, of course, necessary that the relation of husband and wife exist between the parties at the time of the act or communication sought to be proved, in order for the testimony of the spouse to be incompetent under the rule as to privileged communications. So, of course, personal communications between a husband and wife after a divorce are not privileged, even though the divorce was fraudulently procured, if they never afterward recognized each other as husband and wife. Moreover, acts or communications between the spouses are not privileged when made before the marriage, even though made at the time the marriage was entered into and as a necessary means of entering into the marriage relation. ’ ’

It is the opinion of this court, in view of the facts in this case and the authorities cited, that this witness was competent.

It is claimed by plaintiff that inasmuch as the donor had possession of the gift at his death, the ring belonged to the estate and should have been listed in his inventory and appraisement. However, in this case we do not find any evidence of a revocation. On this question we cite 20 Ohio Jurisprudence, 72, Section 55, as follows:

‘ ‘ The same solemnity of conduct and clear intention which characterizes the making of a gift inter vivos must accompany its revocation. The fact that the donor had possession of the subject of the gift at his death, if such possession is not inconsistent with a gift, does not indicate that revocation was intended. ’ ’

Also, 24 American Jurisprudence, 757, 758, Sections 51, 53:

“ [Persons Engaged to be Married.] In the normal relation of the contracting parties to a future marriage, the man occupies the dominant position, and in the absence of evidence that this relation has been reversed, a completed gift made by him to his fiancee cannot be revoked at his option, even though it pi airily appears to have been improvidently made and without the benefit of competent, independent advice.”

“ [Generally.] It is a general rule that a completed gift inter vivos is irrevocable by the donor, his heirs, and personal representatives, and is not revoked by the property being mentioned in a will. A gift inter vivos from parent to child, when fully executed, is irrevocable.”

In conclusion, it is the opinion of this court on a full consideration of the facts as shown by the record, and the law as we have herein cited it, that the assignments of error of plaintiff are not well taken. The judgment of the Probate Court is, therefore, affirmed.

Judgment affirmed.

Putnam, J., concurs.

Montgomery, J.,

concurring. With a great deal of reluctance I concur in the judgment. The reasoning and the conclusion reached by the writer of the main opinion in this case are clearly stated and apparently are justified by the decisions of the Supreme Court, to which reference is made. It must be admitted that there is difficulty in distinguishing the instant case from the cases upon which reliance is placed. The distinction lies only in the fact that in the case before us, the proposition which I desire to stress is more pronounced.

In my judgment, in view of the provisions of Section 11495, General Code, the widow of the decedent should not have been permitted to testify in support of her claim as to the ownership of this ring.

While she was not an adverse party insofar as the style of the case is concerned, nevertheless she certainly is adverse to the estate, claiming this ring as against it.

Insofar as the decedent is concerned, there are substituted for him in this action, his estate and his personal representatives, and his will is the expression of his position and attitude with reference to his property.

Of course, I realize that without her testimony she probably could not have won and that an injustice might have been done her. But such possible injustice is less pronounced than is the situation where she is permitted to testify as to facts; and the only one who could dispute her claim is no longer in being. If there is any presumption, it is that the testator in making this will regarded this ring as his own property, yet here when he cannot contradict her statements the claimant is permitted to set forth her contention, which is certainly adverse to the provisions of the testator’s will.


author: Putnam, J.

text:
    McMillan, Appellee, v. Krantz et al., Appellants.
    (No. 806
    Decided December 20, 1952.)

      Messrs. Chalfant é Smith and Messrs. Seikel & Seikel, for appellee.

      Messrs. Day, Cope, Ketterer, Raley é Wright and Mr. James E. Patrick, for appellants.
   Putnam, J.

This case originated in the Common Pleas Court of Tuscarawas County as an action for statutory partition. It involves the construction of Section 10503-5, General Code, the so-called half-and-half statute, and what the phrase therein, “identical real estate,” means. The trial court held that the phrase, “identical real estate,” comprised the property in question, granted the prayer of the petition; and, consequently, held that the property was the identical real estate devised to the intestate decedent, and that the property descended under Section 10503-5, General Code.

The defendants, appellants herein, contend that this real estate is not the “identical real estate” as contemplated in that statute. The property in question is lot No. 129 in the city of Dover and the building thereon. This appeal on questions of law and fact results from the decision of the trial court that the property was the identical property. The case is submitted to this court on the testimony adduced in the court below, together with the additional tendered evidence of leases executed by Annie B. Deis during her lifetime, and the objections interposed thereto in the trial court. This court holds that the objections were not well taken, and that the tendered leases are competent evidence to prove defendants’ theory of the case.

Section 10503-5, General Code, in its material part, is as follows:

“When a relict of a deceased husband or wife dies intestate and without issue, possessed of identical real estate or personal property which came to such relict from any deceased spouse, by deed of gift, devise, bequest or descent, or by virtue of an election to take under the statute of descent and distribution, then such estate, real and personal, except one-half thereof which shall pass to and vest in the surviving spouse, if any, of such relict, shall pass to and vest in the children of the deceased spouse from whom such real estate or personal property came, or their lineal descendants, per stirpes.” (Emphasis ours.)

The facts, as shown by the ple.adings and the evidence, are not in dispute, and are that the plaintiff and certain of the defendants are the heirs at law of one Andrew Deis, who died testate on April 19, 1942, leaving his widow, Annie B. Deis, surviving him; and that at the time of his death he owned lot No. 129 in the city of Dover in fee simple.

Item 3 of the will of Andrew Deis provided as follows:

“I give and devise to my said wife, Annie B. Deis, provided she survives me, lot number one hundred and twenty-nine (129) in said city of Dover, Ohio, and being the lot upon which is located the building known as the ‘Lenhart Block, ’ together with the appurtenances thereunto belonging, to her absolutely and in fee simple.”

Annie B. Deis came into the possession of this property under this provision of the will, and she never alienated the same or changed the title thereto. She enjoyed the possession and the fruits of this property for about eight years. During that time she made repairs upon the property and rearranged it so as to make it a more valuable rental business property. This involved a considerable expenditure of money. Annie B. Deis died intestate on July 9, 1950, without spouse or lineal descendants surviving her, and at her death she was still the owner of lot No. 129, the title thereto never having been changed. William L. Belknap and the other defendants are the brothers and sisters of Annie B. Deis and her sole heirs at law. They claim the entire property, asserting that it does not descend under the half-and-half statute because the property is not the identical property devised to Annie B. Deis, by reason of certain changes and improvements in the building.

The uncontradicted evidence shows that Annie B. Deis, during the eight years of her enjoyment of this property, made substantial necessary repairs and improvements thereon. The roof leaked and it had to be replaced with a new covering; the heating equipment was inadequate and worn-out, and had to be replaced with new furnaces. New plumbing, windows, toilet facilities, flooring in certain places, and window repairs were necessary, and rearrangement of rooms on the second floor and other changes to facilitate the rental of a business block under evolving conditions were made at considerable expense. Where these funds came from is not disclosed by the evidence, nor do we think that is material.

It is the claim of the defendants that these changes resulting from the work done on this building constituted such an alteration of the property as to change its course of descent. The defendants concede that ordinary repairs and upkeep would not do so. Just how many of the changes proven herein would constitute ordinary repairs is not conceded. Certainly, replacing a leaky roof and a worn-out heating system would be vital maintenance. Just how much rearrangement would be justified to make this business block rentable under changing conditions might be a matter of dispute.

However, we do not consider these matters decisive. All the authorities cited by the defendants have to do with the question of personal property under this statute, viz, Section 10503-5, General Code. In interpreting this statute we must realize that the terms, “real estate,” “interest,” “property,” and, “title,” have many different meanings, depending on statutory definitions, the context in which they are used, and the common law. The determination of the meaning of this phrase as used in Section 10503-5, General Code, is the first question we have before us.

A discussion of the various meanings of those terms is found in 73 Corpus Juris Secundum, 157, Section 7 et seq., under the title of property; also in 31 Corpus Juris Secundum, 9, under the title of estates. We refer also to 36 Words and Phrases, 163, and 41 Words and Phrases, 665. We have no desire to attempt a definitive exposition of the law of real property or the terms used therein because that would be futile, as a casual inquiry shows that the varied use of the words with reference to real property is unlimited, not positive, and depends upon the context and certain statutory definitions.

The basis of the defendants ’ argument herein is that the phrase, “identical real estate and personal property,” should be construed with reference to the “value” or the “interest” therein. In this connection, two main points are made by the defendants, first, that the value of the building on the land in question was enhanced by improvements, and, second, that the interest of Annie B. Deis was changed by reason of the change in the leases thereof.

None of the cases cited by the defendants, all which have to do with personal property, bear out either contention. Running through all those cases, without citing them in detail, it is our judgment that the fundamental idea is that it is the “corpus” of the property, and not the value or the interests therein, which determines the question as to whether the property is “identical.” This proposition is borne out by the decisions of the appellate courts of this state. Exchanging a bond for another bond, although the latter is of equal value, has been held to change the corpus of the property. The depositing in a bank of funds constituting the original property, which creates a debtor and creditor relationship through a commingling of funds, also changes the corpus, although not the value. The bonds might be identical although depreciated 50 per cent, or enhanced 50 per cent due to changed conditions. Likewise, real estate on which nothing had been done, due to lack of repairs, might become absolutely less valuable. On the other hand,, due to changed economic conditions, such as prevailed between 1934 and 1948, it might increase in value three fold, as much real estate did in that period. Consequently, it is our judgment that the value of the property has nothing to do with the interpretation of the word, “identical.”

The second proposition has to do with the evaluation of the argument of the defendants as to their concept of the term, ‘ ‘ real estate, ’ ’ as being any interest in lands, tenements or heriditaments of a freehold nature. The defendants are claiming that, under the statute of descent, the definition given under other circumstances should prevail in this ease. Their arguments and briefs have emphasized this point and we are frank to admit that if their interpretation of the statute is correct, they might have an argument. This is in view of the fact of the elasticity of the definitions of the terms involved.

It is our judgment, however, that in connection with this statute, the definition of real estate, among all the other definitions thereof, is to be determined in accordance with the definition set forth in 73 Corpus Juris Secundum, 160, Section 7, which is:

“As the corpus of estates or interests, the terms ‘real estate’ and ‘real property’ may be construed like the term ‘lands.’ In this sense these terms include the surface of the earth, and things of a permanent nature attached thereto, improvements of a permanent character placed on it, the space above the surface of the earth, and minerals, oils, and gases found below the surface. ’ ’

In our judgment, this proposition is answered by the Supreme Court of Ohio in the case of Patterson v. Lamson, 45 Ohio St., 77, 12 N. E., 531, in which it is held in the first paragraph of the syllabus:

“Under the statutes of descent and distribution, the course of descent of real estate is to be controlled by the legal title.” (Emphasis added.)

In the case of Russell v. Bruer, 64 Ohio St., 1, 59 N. E., 740, the first paragraph of the syllabus is:

“The course of descent of real property is controlled by the legal title.” (Emphasis ours.)

Russell v. Bruer was cited with approval in the case of Wilson v. Eccles, 119 Ohio St., 184, 162 N. E., 797. It is to be noted in the above cases that the words, real property, and the words, real estate, are used synonymously, and yet the determinative fact is the legal title. This gives this court more reason to believe that it is the corpus rather than the interest which controls in this case. In 41 Words and Phrases, 665, “title” is defined as the lawful cause or ground of possessing that which is ours. The word, “interest,” is a much broader term and has a different connotation. The Supreme Court did not say that the course of descent was controlled by an equitable interest, or a legal interest, but by the “legal title.” One may have the identical title in fee simple derived from a given person by a warranty deed of a certain date, or by a certain will, or by a patent from tbe government, and hold the same for 50 years and it remains the identical title. However, his equity or interest in the property might be constantly fluctuating. He might mortgage it and gradually pay off the mortgage. Tax and other liens might accumulate and recede.

Likewise, the value could change. If it were 40 acres of land near a city, its value for allotment purposes might make it a bonanza. A fine residence property in a city could be engulfed by a shifting population and become practically valueless. Yes, but the defendants say it must be a voluntary act of the owner. The voluntary act of the owner in doing what? They answer, changing the identity. The identity of what? We answer, it is the identity of the title of the corpus and not the interest or equity. Suppose under the cases cited under this section, involving personal property, one would inherit 50 United States bonds worth one hundred dollars each and then sell 25 of them. Could it be argued that the remaining 25 would not be the identical property inherited? Certainly not. So, likewise, suppose one inherited 160 acres of land and sold off 40 acres; could it be argued that under this section the 120 acres remaining would not be the identical real estate inherited? Again the answer is nó. Certainly, not all of it would remain, but what did remain would be the identical property as far as the title thereto is concerned. Neither, as we see it, would it make any difference if a farmer put up a new hog house or, after the rural electric program came along, put in a new water system for his house. All became fixtures pertaining to the original land which was derived through the original title.

The Supreme Court in the Wilson case, supra, has repudiated the theory of tracing funds originally inherited or the accumulations thereof as leading to confusion. The same court has said in no uncertain terms that real estate descends according to legal title. It is apparent to us that the term, real estate, as here used, is synonymous with land or corpus. Any other interpretation would, as above indicated, lead to worse confusion. If funds cannot be traced, how can value or interest? The only practical rule is “title,” otherwise the statute might as well be repealed.

Consequently, we hold, first, that the repairs and alterations made in the instant property were necessary to maintenance, and that irrespective of the sources of the funds used therefor, the improvements became a part of the land; and, second, that this real estate or land is the identical real estate willed to Annie B. Deis by Andrew Deis, because the title thereto was not changed by Annie B. Deis during her lifetime.

It follows that a decree is made herein similar to the one made in the court below.

Judgment accordingly.

McClintock, P. J., and Montgomery, J., concur.


author: Wiseman, J.

text:
    Lohr, Appellant, v. Ford, Appellee.

      (No. 4727
    Decided September 25, 1952.)

      Messrs. Hamilton & Kramer, for appellant.

      Mr. Robert R. Shaw, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus.

Plaintiff, a real estate broker, sued to recover his commission for procuring a purchaser for the residence owned by defendant. The trial court rendered judgment for defendant on the theory that the plaintiff had not procured a purchaser who was ready, willing and able to buy.

In his petition, plaintiff alleged that he was employed by the defendant to find a purchaser for $15, 750; that he found a purchaser at the stipulated price; and that the defendant and the purchaser entered into a written contract of sale, after which the defendant refused to consummate the sale. The defendant, answering, admitted that he and the purchaser entered into a purchase contract based on the terms set forth, but denied that the plaintiff procured a purchaser who was ready, willing and able to buy the property.

The essential facts are not in dispute. The evidence shows that the defendant verbally engaged the broker to find a purchaser at a price of $15,750. The defendant was to receive $15,000 net for the property. The commission was fixed at $750. The plaintiff found Mr. and Mrs. Burton, the purchasers, who agreed to purchase the property at the stipulated price. The plaintiff, the defendant and the Burtons met on July 18, 1950, and then the defendant and the Burtons entered into a written contract of purchase. The contract provided that the sale should be consummated within 15 days, or as soon thereafter as possible. The Burtons experienced some difficulty in securing a loan, which delayed the consummation of the sale. On August 8, 1950, the defendant sent a letter to the Burtons stating that the contract would be void as of August 10, 1950. About August 16, 1950, the purchasers notified the defendant that they had secured a loan and stated that they would close the deal at noon on August 17, 1950, at the office of the-loan company. The purchasers appeared at the appointed time and place and were ready to consummate the sale. The defendant did not appear, but his counsel did and stated that the defendant would not consummate the sale.

Under this state of facts, was the plaintiff entitled to judgment? We think so. The question as to whether the Burtons were ready, willing and able to buy, which was attempted to be made an issue by the pleadings, was not a proper issue and did not require a determination. When the defendant, the seller, and the Burtons, the purchasers, entered into an enforceable written contract of sale, the plaintiff had earned his commission, and the fact that the transaction failed of consummation for some reason, unrelated to the binding quality of the contract, is no defense to an action by the broker to recover commission. Carey, Admr., v. Conn, 107 Ohio St., 113, 140 N. E., 643; Scudder v. Wallace, 79 Ohio App., 48, 71 N. E. (2d), 308. In Carey, Admr., v. Conn, supra, the court, on page 116, said:

“The evidence offered in open court showed a contract of sale between J. B. Carey and A. C. Stutsman, trustee. That contract of sale made immaterial the complaint made by the plaintiff in error. The financial responsibility of the prospective purchaser was open to question by Carey until the contract of sale was agreed upon and completed. After the contract was duly executed by the parties, such contract constituted a waiver so far as Conn was concerned in regard to the purchaser being ready, willing, and able to purchase the property. Whatever infirmities may have arisen out of the contract and conduct of the parties thereafter did not and could not in any wise prejudice the rights of Conn to recover upon his contract to find such purchaser and make such sale.”

In Scudder v. Wallace, supra, the second paragraph of the syllabus is as follows:

“Where a seller enters into a written contract with the purchaser procured by the agent, the seller cannot thereafter defend against payment of the agent’s commission on the ground that the buyer was not ready, willing and able. ’ ’

The court, on page 51, said:

‘ ‘ The fact that the contract between the seller and buyer fails for any reason, not relating to the binding quality of the contract, when entered into, is no defense to the action of the agent for his commission.”

Even though the court should construe the evidence as proof that the plaintiff was engaged to sell the property, the fact that an enforceable contract of sale was entered into between the defendant and the purchaser, would give rise to plaintiff’s right to recover his commission. Pfans v. Humburg, 82 Ohio St., 1, 91 N. E., 863, 29 L. R. A. (N. S.), 533. The court on page 11 quotes with approval the case of Wilson v. Mason, 158 Ill., 304, 311, 42 N. E., 134, 49 Am. St. Rep., 162, as follows:

“ ‘The true rule is that a broker is entitled to his commission, if the purchaser presented by him and the vendor, his employer, enter into a valid, binding and enforceable contract. * * * An agreement by a real estate broker to procure a purchaser, not only implies that the purchaser shall be one able to comply, but that the seller and purchaser must be bound to each other in a valid contract. So, where the agreement of the real estate broker is to make a sale, his commission is earned when a contract is entered into, which is mutually obligatory upon the vendor and vendee, even though the vendee afterwards refuses to execute his part of the contract of sale or purchase.’ ”

The essential allegations were supported by undisputed evidence. In rendering judgment for the defendant, the trial court committed prejudicial error. Coming now to render the judgment which the trial court should have rendered, this court renders judgment for the plaintiff in the sum of $750 with interest at six per cent from July 18, 1950, and costs.

Judgment accordingly.

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


author: Guernsey, J.

text:
    Niebes, Appellee, v. Crestline Aerie No. 859, Fraternal Order of Eagles, et al., Appellants.

      (No. 1485
    Decided November 12, 1952.)

      Mr. Leo J. Scanlon and Mr. J. D. Sears, for appellee.

      Messrs. Myers <& Spurlock, for appellants.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Crawford County in an action wherein the appellee, Rose Niebes, was the plaintiff, and the appellants, Crestline Aerie No. 859, Fraternal Order of Eagles, Crestline, Ohio, and Frank Yakubek, L. J. Simoni, A. P. Sonner, E. N. Jacobs, and M. V. Snyder, as trustees of Crest-line Aerie No. 859, Fraternal Order of Eagles, were defendants. The action is one for damages for injuries allegedly sustained by plaintiff while she was a guest and invitee on the premises of defendants, alleged to have been prosimately caused by the negligence of the defendants in their failure to maintain a stairway on said premises in proper repair.

The cause was tried to a court and jury and the jury returned a verdict for $5,000 in favor of the plaintiff and against the defendants. Judgment was duly entered on said verdict. This is the judgment from which this appeal is taken.

Such of the evidence in the cause as it is necessary to consider in order to determine the assignments of error will be hereafter mentioned in connection with the assignment of error to which such evidence relates.

The defendants, appellants herein, have assigned error in the following particulars, to wit:

1. The court erred in submitting the case to the jury and in not directing a verdict in favor of the defendants on motion of the defendants made at the close of plaintiff’s evidence and renewed at the close of all the evidence.

2. The court erred in submitting to the jury the question of whether or not plaintiff was an invitee on the night of the injury when the record contains no evidence that she was an invitee at such time.

3. The court erred in his charge to the jury in instructing it on the question of licensee-invitee relationship of plaintiff to defendants.

4. The verdict and judgment thereon herein appealed from are against the weight of the evidence and contrary to law.

5. The verdict and judgment thereon herein appealed from are not supported by any evidence and are contrary to law.

6. The court erred in his charge to the jury in regard to the duties of the defendants in regard to care of their stairways.

7. The court erred in his charge to the jury in instructing it regarding constructive knowledge of defects in the stairway when the petition merely charged actual knowledge.

These assignments will be considered in the order mentioned.

1. The first assignment of error raises the question as to whether there is any evidence in the record for review tending to prove that the defendants owed any duty of care toward the plaintiff or were negligent in any of the respects charged in the petition, proximately causing plaintiff’s injuries.

An inspection of the record discloses that a number of witnesses, including the plaintiff, testified that the plaintiff, whose husband was a member of defendant lodge, stumbled and fell while descending the stairway leading from the second floor to the first floor on the premises possessed by defendant lodge and used by it for lodge purposes, such purposes including the maintenance of a ladies’ auxiliary of such lodge, of which auxiliary the plaintiff was a member.

As a result of said fall plaintiff sustained serious injuries.

There is also the testimony of a number of witnesses that the metal bindings or mouldings along the edges of the steps of said stairway at the place where plaintiff stumbled and fell were in a state of disrepair. The state of disrepair testified to was of such a character that the jury could infer that it was the proximate cause of plaintiff’s injuries.

There were also witnesses who testified that such a state of disrepair had continuously existed during several weeks prior to the time of plaintiff’s injuries, from which testimony the jury could infer that the defendants had knowledge of such condition of disrepair.

If the defendant lodge owed any duty of care to the plaintiff the evidence above mentioned was sufficient to require the court to submit to the jury the issues of negligence on the part of the defendant lodge, proximate cause, and damages.

What duty of care, if any, the defendant lodge owed the plaintiff is dependent upon the legal capacity in which-the plaintiff was upon the premises of the defendant lodge at the time and place of her injuries, which is determinable from the following facts admitted in the pleadings or appearing in evidence in the cause.

The defendant lodge is an unincorporated nonprofit fraternal organization and association made up of a voluntary membership exceeding 600 male persons, operating in the village of Crestline, Ohio, being so organized and so functioning under a charter granted to it by its incorporated national parent lodge, the Grand Aerie of the Fraternal Order Eagles. The other named defendants are members and trustees of said Crestline Aerie No. 859, Fraternal Order of Eagles.

At all the times mentioned in the petition and prior thereto the defendant lodge was in possession of a three-story building on East Bucyrus street in the village of Crestline, Ohio, of which it had the exclusive control and which it used for lodge purposes and other purposes incidental thereto.

Prior to the times mentioned in the petition certain of the wives and daughters of the members of the defendant lodge association formed a voluntary association known and operating as a ladies’ auxiliary to said lodge association.

At all times said auxiliary was a separate entity from said lodge association and said lodge association was a separate entity from said ladies’ auxiliary.

The ladies ’ auxiliary was in existence at all the times mentioned in the petition.

Said building, possessed by said lodge and controlled and occupied by it, had at its entrance on said East Bucyrus street, several steps ascending from the sidewalk to a vestibule on the ground floor thereof. Upon the ground floor doors led from said vestibule to a bar and grill and separate rooms for men and women where drinks and lunch were served. It does not appear that the ground floor of the building was in use for any other purpose. From the vestibule on the ground floor there was an enclosed stairway ascending to a landing on the second floor from which separate doors opened into a room used by the ladies 1 auxiliary for their meetings and another room which was used as an office by the secretary of the lodge. It does not appear that the second floor of the building was in use for any other purpose.

From the landing on the second floor there was a stairway leading to the third floor. The third floor was used by the defendant lodge as a meeting place and at certain times was also used by defendant lodge for the purposes of conducting bingo games and serving dinners to the members and their guests.

The defendant lodge permitted or acquiesced in the use by the ladies’ auxiliary of the room adopted by the auxiliary as its meeting place. It provided the light and heat therefor, partially furnished same and neither charged nor received any rent from the auxiliary. The auxiliary decorated said room and partially furnished it. The auxiliary collected dues from its members to defray expenses incurred by it. Other than as above stated, the auxiliary received nothing from defendant lodge and paid nothing to it for the use and occupancy of said room or for any other purpose. The auxiliary maintained a drill team which performed for the local lodge and at Eagles’ conventions.

In February 1952, the auxiliary aided and participated in improvements made by the lodge to the building occupied by it and the furnishings thereof but there is no evidence tending to prove that at any time prior to the time plaintiff was injured the auxiliary had aided or participated in any similar undertakings by the defendant lodge.

The auxiliary, in addition to being accorded by the defendant lodge the privilege of using and occupying the room on the second floor as a meeting place without charge or compensation, was collectively and individually accorded the privilege of attending social functions held by the lodge upon the third floor of its building, together with access to said second and third floors by the stairways leading thereto.

The auxiliary and its individual members were also accorded the privilege of purchasing and consuming drinks and lunches in the bar and grill room upon the first floor of the building in the room provided by the lodge for such purpose together with access thereto through the entrance to said building and the vestibule and doors leading into said rooms upon the first floor of said building.

The plaintiff sustained the injuries of which she complains on December 1, 1947. She had come from her home to the Eagles building where she directly entered the building and ascended the stairway leading from the first floor to the second floor and entered the room used by the ladies’ auxiliary as a meeting place. She attended a meeting of the auxiliary then being held in said room, her stated purpose in attending said meeting being the payment of her dues. After the close of the meeting she left the meeting place with the purpose of returning to her home and started down the stairway to the first floor when she slipped and fell on said stairway and sustained the injuries complained of by her. She was not, on said date, present in any other parts of the building than those mentioned and did not purchase any food or drink or attend any social functions or other activity given or sponsored by the defendant lodge.

At the time of plaintiff’s injuries there were handrails on both sides of the staircase and the stairway was well lighted. After plaintiff fell and while still lying on the stairway she looked up the stairway and observed a hole in the metal binding of the step which she believed had been the one upon which her foot had caught causing her to fall; the metal strip being partly separated from the step, turned up and split.

A piano belonging to the auxiliary had been moved from outside the Eagles building through the entrance in the vestibule, up the stairway from the first floor to the second floor and into the meeting room of the ladies’ auxiliary several weeks prior to the time the plaintiff sustained her injuries.

Under the factual situation above set forth, it is obvious that under the permission extended by the defendant lodge to the plaintiff to be present upon the premises of the lodge and to use its facilities the plaintiff while on said premises might have the legal capacity of an invitee (business visitor) or a gratuitous licensee (social visitor), depending upon the purpose for which she was on said premises and the portion of said premises upon which she was present.

The status and rights of invitees and licensees are subject to determination by the following rules of law:

“1. In tort law an ‘invitee’ means a business visitor, that is, one rightfully on the premises of another for purposes in which the possessor of the premises has a beneficial interest. A social guest is not a business visitor and is not an ‘invitee’ as that term is used in tort law.

“2. A host is not an insurer of the safety of a guest while upon the premises of the host and there is no implied warranty on the part of a host that the premises to which a guest is invited by him are in safe condition.

“3. A host who invites a social guest to his premises owes the guest the duty (1) to exercise ordinary care not to cause injury to his guest by any act of the host or by any activities carried on by the host while the guest is on the premises, and (2) to warn the guest of any condition of the premises which is known to the host and which one of ordinary prudence and foresight in the position of the host should reasonably consider dangerous, if the host has reason to believe that the guest does not know and will not discover such dangerous condition.” Scheibel v. Lipton, 156 Ohio St., 308, 102 N. E. (2d), 453.

“A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.” 2 Restatement of the Law of Torts, 893, Section 330.

“A gratuitous licensee is any licensee other than a business visitor as defined in section 332.” 2 Restatement of the Law of Torts, 896, Section 331.

“A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.” 2 Restatement of the Law of Torts, 897, Section 332.

“Comment: a. Distinction between possessor’s duty to gratuitous licensee and duty to business visitor. There is only one particular in which one who holds his land open for the reception of business visitors is under a greater duty in respect to its physical condition than a possessor who holds his land open to the visits of a gratuitous licensee. The possessor has no financial interest in the entry of a gratuitous licensee; and, therefore, such a licensee is entitled to expect nothing more than an honest disclosure of the dangers which are known to the possessor. On the other hand, the visit of a business visitor is or may be financially beneficial to the possessor. Such a visitor is entitled to expect that the possessor will take reasonable care to discover the actual condition of the premises and either make them safe or warn him of dangerous conditions. As stated in §342, a possessor owes to a bare licensee only the duty to exercise reasonable care to disclose to him dangerous defects which are known to him and are likely to be undiscovered by the licensee. Toward the business visitor, the possessor owes the additional duty to exercise reasonable care to make the land safe for the reception of his visitor or, at the least to ascertain the actual condition of the land so that by warning the visitor thereon, he may give the visitor an opportunity to decide intelligently whether or not to accept the invitation or permission. ’ ’ 2 Restatment of the Law of Torts, 939, Section 343. Comment a.

Considering the status of plaintiff at the time of her injuries in the light of the rules of law above mentioned, it is clear that she did not have the legal capacity of a business invitee as she was not on the lodge premises for any purpose in which the possessor of the premises had a beneficial interest and she was not upon a part of said premises in use for any purpose in which the possessor of the premises had any beneficial interest and consequently had merely the legal capacity of a social guest or gratuitous licensee. To her the defendant lodge owed the duty only of (1) exercising ordinary care not to cause injury to her by any act of the lodge or by any activities carried on by the lodge while she was a guest on the premises, and (2) to warn her of any condition of the premises which was known to the lodge and which one of ordinary prudence and foresight in the position of the lodge should reasonably consider dangerous, if the lodge had reason to believe that plaintiff did not know and would not discover such dangerous condition.

While the petition charges that plaintiff had the legal capacity of an invitee the other allegations of the petition and the evidence received without objection upon the trial is such as to have required the court to submit the cause to the jury upon plaintiff’s right to recover as a gratuitous licensee, there being evidence in the record tending to prove that plaintiff had such right.

As under the pleadings and the evidence a cause of action was shown requiring the submission of the cause to the jury the trial court did not err in overruling the motion of defendant lodge to direct a verdict in its favor as contended in the first assignment of error. This assignment of error is therefore without merit.

There is a.serious question as to the sufficiency of the petition herein by reason of the failure of the plaintiff to make the allegations necessary to sue the members of the lodge as a class in conformity with the requirements of Section 11257, General Code, as mentioned in the opinion of the Supreme Court of Ohio in the case of Damm v. Lodge, 158 Ohio St., 107, 107 N. E. (2d), 337, but counsel for the defendants stated in open court that they did not wish to make any objection to the form of the pétition or as to the judgment in the cause not being binding on defendant lodge and the members thereof by reason of such infirmity, so this court does not consider this question but suggests that in the event of a new trial the petition be amended to conform with the requirements of Section 11257, General Code, above referred to.

We shall now consider the other assignments of error.

2. As appears from the discussion under assignment of error number one, there is no evidence in the record that plaintiff had the legal capacity of an invitee and consequently the court erred in submitting the question, to the jury as to whether plaintiff was an invitee. This error requires the reversal of the judgment of the trial court and the remanding of the cause for a new trial with instructions to the trial court that in the absence of evidence tending to prove that plaintiff had the legal capacity of an invitee at the time of her injury the court instruct the jury that the plaintiff was a gratuitous licensee on the premises of the lodge and define the duties of the defendant lodge to her in such capacity.

3. As under the evidence in the case and as a matter of law the plaintiff aj; the time of her injuries had the legal capacity of a gratuitous licensee as hereinabove mentioned the court erred in the particulars specified in the third assignment of error. This error will be corrected by the reversal of the judgment and the remanding of the cause to the trial court as prescribed in the disposal of assignment of error number two.

4 and 5. As the plaintiff was a gratuitous licensee and not an invitee and the cause was submitted to the jury as if the plaintiff was an invitee the verdict of the jury is contrary to law. Upon this submission the verdict is also against the manifest weight of the evidence. These errors are of such a character as to require the setting aside of the verdict and the reversal of the judgment.

6. The court charged the jury that the defendant lodge owed a duty to plaintiff as an invitee, while the defendant lodge owed the plaintiff a duty as a gratuitous licensee only. The court erred in this respect and this error is of such a character as to require reversal of the judgment.

7. WRile the petition charged actual knowledge of defects in the stairway, the evidence upon this point, which was admitted without objection, tends to prove constructive knowledge and constructive knowledge was sufficient to charge the defendant lodge with liability. This situation warranted the charge as given.

For the errors hereinbefore found and discussed the verdict of the trial court will be set aside and the judgment will be reversed and the cause remanded for a new trial and further proceedings according to law, with instructions as hereinbefore set forth, and it is adjudged that the plaintiff, appellee herein, pay the costs of this appeal.

Judgment reversed.

Middleton, P. J., and Fess, J., concur.

Fess, J., of the Sixth Appellate District, sitting by designation in the Third Appellate District.


author: Per Curiam.

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

      (No. 3499
    Decided April 3, 1952.)

      Mr. W. A. Ambrose, prosecuting attorney, and Mr. Jack Nybell, for appellee.

      Mr. Russell G. Mock, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Ma-honing County, in an action wherein the defendant, William Naples, under an indictment for assault with intent to Mil was tried and found guilty of assault and battery.

The defendant complains: First, that on the second day of the trial a codefendant dressed in jail garb was brought into court by the state, accompanied by a deputy sheriff in uniform; that there was an article in the Youngstown Vindicator the night before covering the trial of this codefendant, who had been found guilty, sentenced, and was now serving time in jail; and that this prevented the defendant from having a fair and impartial trial, it being the claim of counsel for appellant that the court erred at that time in overruling his motion to declare a mistrial of the case. Second, that counsel for the state during his opening statement was guilty of misconduct in referring to the prosecuting witness when he said, “for two or three days they did not know whether he was going to live or not”; and that in his argument to the jury he indulged in inflamatory remarks arousing the passions of the jurors. Third, that the general charge of the court was prejudicially erroneous. Fourth, that the court permitted incompetent evidence to go to the jury, and that the judgment was against the manifest weight of the evidence.

The calling of the codefendant as a witness by the state, dressed in his jail attire and accompanied by a uniformed deputy sheriff, standing alone, does not constitute error warranting a reversal.

The fact that an article appeared in the evening papers the night before might have a tendency to prejudice the minds of the jurors if seen and read by them. The court, however, may not presume that the jurors saw the newspaper article, read it, or were prejudiced thereby.

‘ ‘ Where, during the trial of a criminal case, articles appear in the local newspapers which have a tendency to - prejudice the minds of the jurors if seen and read by them, the court may not presume that the jurors saw the newspaper articles, read them and were prejudiced thereby.” State v. Fouts, 79 Ohio App., 255, 72 N. E. (2d), 286.

We find no prejudicial error in the overruling of defendant’s motion to declare a mistrial.

•In relation to the claim of misconduct upon the part of counsel for the state in his opening statement to the jury and in his closing argument wherein it is claimed that he unduly emphasized the extent of the injuries inflicted upon the prosecuting witness and attempted to influence the jury improperly by referring to a sawed-off billiard cue and forcibly demonstrating the use of such billiard cue upon the person of the prosecuting witness, there was no evidence upon the trial that such billiard cue was used upon the occasion of the assault, although it was found a week later in the same place in the defendant’s place of business where the blackjack was found which had been used in the assault.

The remarks of counsel made in his opening statement and in the closing argument were merely his interpretation of the facts as he understood them, and were not such as to warrant a reversal as being inflamatory and prejudicial. Had the jurors been inflamed by such argument the verdict undoubtedly would have been guilty as charged in the indictment, rather than guilty of assault and battery, which the defendant admitted he inflicted, his defense being self-defense. The jury did not believe that he established self-defense as evidenced by the verdict.

In relation to the claim of error in the charge of the court to the jury, it is disclosed that the trial court first correctly defined the elements of the crime of assault and battery by reading the statute to them as follows;

“ ‘Assault and Battery’ * * *. ‘Whoever unlawfully strikes or wounds another shall be guilty of assault and battery. ’ ’ ’

Thereafter the court charged the jury:

“Before you can find the defendant guilty of this crime of assault and battery, you must first find beyond a reasonable doubt the existence of the following necessary elements of the crime of assault and battery: That the defendant intentionally struck the prosecuting witness or intentionally and forcibly laid hands on his person without his consent.

‘ ‘ I shall now point out to you the difference between the crimes. The first crime includes an intent to kill; the second does not. If, under the evidence and my instructions, you find beyond a reasonable doubt that the defendant so committed an assault and battery upon the person of the prosecuting witness, then it is your duty to return a verdict of guilty as to such crime. On the other hand, if, under the evidence and my instructions, you do not find beyond a reasonable doubt that the defendant so committed an assault and battery upon the person of the prosecuting witness, then it is your duty to return a verdict of not guilty as to that crime.”

It is observed that the court used the word, “intentionally, ’ ’ in defining the elements of the crime of assault and battery instead of the word, “unlawfully.” In considering the effect of the definition submitted to the jury, it must be kept in mind that the defendant admitted assaulting the prosecuting witness with a blackjack and forcibly inflicting some injuries upon him, having justified the same solely upon the ground that he acted in self-defense.

The court had correctly charged the jury upon the issue of self-defense interposed by the defendant, and the jury in finding the defendant guilty of assault and battery necessarily found that defendant had not acted in self-defense. If he did not act in self-defense there was nothing the jury could do but find him guilty of assault and battery because he had admitted assault and battery. It follows that there was no prejudice to the defendant in the matter complained of.

This court has considered all the assigned errors. We believe that the charge of the court in its entirety covered the issues joined, and that there is no prejudicial error upon the record that would warrant a reversal, and further, we find that the verdict of the jury is not against the manifest weight of the evidence.

Under Section 13449-5, General Code, a reviewing court is not permitted to reverse a judgment of conviction “unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

Finding no errors prejudicial to the defendant, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

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


author: Matthews, J.

text:
    Redrow, Appellee, v. Redrow, Appellant.
    (No. 211
    Decided October 23, 1952.)

      Messrs. Walker & Bradford, for appellee.

      Messrs. Nichols, Speidel & Nichols, for appellant.
   Matthews, J.

This is an appeal from a judgment granting a divorce to the defendant, appellant herein, and awarding custody of the two-year-old son of the parties for nine months of the year to the defendant and for the other three months to the plaintiff, appellee herein, and ordering the plaintiff to pay $12 per week to the defendant for the care and support of the child while she has his custody.

The defendant urges that two errors affirmatively appear on this record. The errors urged are, first, that the court lacked jurisdiction to decree a divorce to either party because of absence of residence by plaintiff for a period of 90 days, as required by Section 8003-3, General Code; and, second, that the awarding of the custody of the child to the plaintiff is manifestly against the weight of the evidence and contrary to the best interest of the child, as shown by the evidence. We find it necessary to consider only the first assignment of error.

The plaintiff and defendant were married in Williamsburg, Clermont county, Ohio, on September 4, 1949. The record is confusing as to where the parties had resided prior to their marriage. It is clear that they resided for some time in Williamsburg and that the plaintiff voted there on November 2, 1948. The plaintiff has not voted since then but testified that he contemplated voting in Williamsburg at the 1952 election.

After their marriage, the plaintiff, and defendant with her two children, lived in Williamsburg in one room which, prior to the marriage, had been occupied by the defendant and her two children. They continued to occupy this room until they moved to Cincinnati, Hamilton county, Ohio, on July 1, 1950. The reasons assigned for the change were the inadequacy of living quarters at Williamsburg and the fact that the new location was much nearer the plaintiff’s place of employment.

After their removal to Cincinnati, the only tie that bound the plaintiff to Clermont county was the fact that his mother and stepfather lived there. He visited them from time to time on week ends. He rented an apartment in Cincinnati, paid the rent, provided a telephone therein in his name, installed his wife and her two children and lived with them there. His son was born there. He went from there to his place of employment in the morning and returned there at night from July 1, 1950, to not earlier than July 25, 1951, when, according to his testimony, he left the defendant and went to his mother’s home in Clermont county, where he resided until this action was instituted on October 22,1951.

By Section 8003-3, G-eneral Code, the jurisdiction of the court to entertain an action for divorce is dependent upon it being made to appear that the plaintiff is and for at least one year prior to the commencement of the action has been a resident of the state, and in actions for either divorce or alimony or both, a bona fide resident of the county for at least 90 days immediately preceding the filing of the petition.

If the time of plaintiff’s residence in Clermont county is calculated from July 25, 1951, when he left the defendant and went to his mother’s home in Clermont county, to the time the action was instituted on October 22, 1951, his residence in Clermont county falls short of the required 90 days by one day. That is according to the plaintiff’s own testimony. According to the testimony of the defendant and witnesses called by her, the plaintiff did not leave her until August 1st, which would make the duration of his residence in Clermont county only 80 days at the time of the institution of this action.

As we understand the plaintiff’s contention, he does not claim that if the duration of his Clermont county residence is to be determined by fixing its commencement as of the date on which he left the defendant that it would satisfy the requirement of 90 days’ residence imposed by Section 8003-3, General Code. His contention is that the residence in Clermont county, which he had established prior to his marriage, was never abandoned. He testified that he always regarded Clermont county as his home and intended to return there, but he failed to testify to a single fact or act ocurring between July 1, 1950, and July 22, 1951, from which a corroborating inference could be drawn. The plaintiff’s case then rests on his testimony that he had an intention to return, which was undisclosed until he testified in this case.

In the face of all the outward manifestations to the contrary, are the facts to which he testified sufficient to confer jurisdiction?

Plaintiff’s counsel cite two cases decided by this court in support of an affirmative answer to this question. We do not think the cases support counsel’s position.

The first case relied upon is Glassman v. Glassman, 75 Ohio App., 47, 60 N. E. (2d), 716. The trial court had dismissed the action for divorce for want of jurisdiction. The action was appealed to this court on a finding of facts. No bill of exceptions was filed in the trial court.

The finding of facts disclosed that the plaintiff — ■ the wife — had been a bona fide resident, domiciled in Cincinnati and living there with her parents for a period of four years prior to her marriage. The defendant-husband was an officer in the medical corps of the United States army, stationed at Ft. Thomas, Kentucky, at the time of his marriage. At the time of his induction into the army he resided in Charleston, West Virginia, where he was engaged in the practice of medicine. After their marriage, the husband was assigned successively to various army posts and his wife accompanied him to several, but he never established any residence in any of the places to which he took his wife and never provided a domicile for her. The question was whether the wife had lost her residence in Cincinnati. It was clear that they had no permanent home at any time during marriage. The issue was whether the wife, ipso facto, upon marriage, under these circumstances, lost her domicile and acquired as her own the technical domicile of her husband, even though the husband had no actual home there and took no step to provide one. All the court decided was that the marriage in and of itself effected no such transfer of the wife’s domicile.

We fail to see any analogy between that case and the case at bar.

The other case relied on is Saalfeld v. Saalfeld, 86 Ohio App., 225, 89 N. E. (2d), 165. The question in that case was whether the plaintiff had been a resident of Ohio for one year prior to commencing the action for divorce. The plaintiff came to Cincinnati to receive training as a nurse and was occupied as a student nurse in a hospital during the time she claimed she was a resident to satisfy the requirement of the law. At the trial, she was asked: “Now you claim you are a resident of the state of Ohio since 1942?” Her answer was: “Yes, sir.” Notwithstanding the plaintiff’s actual presence in the state for more than one year and her positive testimony that it was the place of her residence, this court held that in view of the fact that she had come to Cincinnati to receive training as a nurse and was so engaged while there, and the further fact that while there she attempted to vote at her residence in West Virginia, from yrhich she had gone to Cincinnati, a finding that she had been a resident of Ohio for one year was manifestly against the weight of the evidence. The court remanded the cause for a new trial. It does not seem to us that that case has any relevancy to this case.

The net effect of the two cases is to illustrate that domicile is dependent upon presence and intention as shown by the facts and circumstances disclosed by the evidence; the decision in each case depending upon its own particular facts.

Counsel also rely upon Village of Indian Hill v. Atkins, 90 N. E. (2d), 161. The facts in that case were that Atkins, whose residence was the subject of controversy, had continuously declared that his residence was in Cincinnati, where his original residence had been. A reading of the facts in that case discloses its dissimiliarity to this case.

In 17 American Jurisprudence, 643, 644, Section 92, it is stated:

“Professor Beale has observed that ‘since actions speak louder than words the conduct of a person is the most important evidence of his intention to acquire a domicile in a place.’ Where, therefore, the declarations of a party as to his intent are inconsistent with his acts, his conduct is of greater evidential value than his declarations. Therefore, one who has resided and carried on business for years in one jurisdiction cannot for his own purposes insist that his domicile is in another. The facts may belie the expressed intent to retain a domicile actually given up. Merely speaking of the domicile of origin as ‘ home ’ may prove nothing, without any act showing an intention to return to it. So also a change of residence, clearly manifested as matter of law by acts, cannot be defeated by a subsequent declaration of the person that he did not intend Ms acts to have that effect. But declarations accompanied by acts afford the strongest evidence which the nature of a ease can furnish. ’ ’

The same principle is stated in 14 OMo Jurisprudence, 593, 594, Section 44.

The burden of proof rested upon the plaintiff. He failed to introduce evidence of a single declaration made by him contemporaneous with the establishment of his home in Cincinnati of an intention to retain his residence in Clermont county. It is true that he had voted in Clermont county in 1948, but that was two years before he had moved Ms family to Cincinnati and one year before his marriage. His voting in 1948 showed his intention as to his residence at that time, but that has no tendency to explain his action two years thereafter.

We think the most that can be said in support of the plaintiff’s position is that perhaps during his residence he had a sentimental attachment to Clermont county, because Ms mother resided there and it had been his home, and he may have had a vague, undisclosed purpose to return there at an uncertain future time.

It is stated in 17 American Jurisprudence, 609, Section 31, that:

“If a person has actually removed from one place to another, with an intention of remaining in the latter for an indefinite time and as a place of fixed present domicile, such latter place is to be deemed his place of domicile notwithstanding he may entertain a floating intention to return to his previous domicile at some future period. The intention to retain a former domicile is unavailing if it is doubtful, vague, or equivocal. ’ ’

We conclude that the plaintiff failed to prove that he had been a resident of Clermont county for 90 days at the time this action was filed, and, for that reason, the court did not have jurisdiction to grant the relief sought.

For these reasons, we are of the opinion that the court erred in overruling the defendant’s motion to dismiss the action.

The judgment is reversed and the cause remanded with instructions to dismiss the action for want of jurisdiction.

Judgment reversed.

Hildebrant, P. J., concurs.


author: Hildebrant, P. J.

text:
    Rebisso, Inc., Appellant, v. Frick, Appellee.
    (No. 7546
    Decided March 17, 1952.)

      Mr. Walter K. Sibbald, for appellant.

      Mr. Leonard H. Freiberg, for appellee.
   Hildebrant, P. J.

This appeal on questions of law and fact is from an order of the Court of Common Pleas dismissing plaintiff’s petition to foreclose a mechanic’s lien.

Defendant employed a general contractor to build a house on a cost-plus basis. The general contractor made a contract with plaintiff to install the plumbing and sewage disposal facilities at a specified contract price, upon which one-half was paid according to contract. Thereafter, the general contractor abandoned the job and defendant refused to permit plaintiff to complete the plumbing work.

Plaintiff filed a mechanic’s lien, and, in this action to foreclose, the defense claims the lien invalid because the affidavit lists one Adams as a materialman who should have been listed as a subcontractor, requiring his affidavit under the law. A second defense is that if entitled to recover the measure of recovery is confined to the reasonable value of the materials and labor furnished.

Plaintiff, over the telephone, ordered from Adams a 700-gallon septic tank to be delivered on the job. The record shows it is customary for the plumber to prepare the site for such a tank by making a proper excavation at a place selected by him, and that, on delivery, the tank is not merely unloaded on the premises but is set in position in the prepared excavation. In the event of any change necessary in the excavation to meet required drainage conditions as to levels for proper connection later with the residence and the outlet to the leaching bed, it is the responsibility of the plumbing contractor to make the necessary changes, and the man furnishing the tank makes a charge to said plumber for extra work in raising and relowering the tank in position.

Adams testified that for his own convenience, due to the weight of the tank, it was fabricated in his shop in three sections, plus a top, then trucked to the site, the sections lowered by chain hoist into the excavation and cemented together by his men, using their own materials for the job, until a completed watertight tank was in position.

It was this method of delivery in sections, accompanied by the necessary labor at the site to complete the watertight tank, upon which defendant bases the contention that Adams was a subcontractor and not a materialman.

It is conceded that if such is the case the lien is not properly perfected and, hence, invalid and not susceptible of foreclosure.

The distinction between a materialman and a subcontractor is set forth in Matzinger v. Harvard Lumber Co., 115 Ohio St., 555, 155 N. E., 131, the second paragraph of the syllabus of which provides:

“Whether materials furnished by a dealer to a contractor to be used in the process of the erection of a building were selected from the stock of the dealer or made by him in his own establishment or procured from another for the particular purpose, such dealer, having - nothing to do relative to the installation of said materials or the fabrication thereof into the structure, is a materialman and not a subcontractor.”

We note here that the septic tank requires connection by drain to the house for inlet and to the leaching bed at the outlet to become a useful unit, which was a part of the duty of the plumbing contractor.

This court takes the view that the labor expended by Adams in assembling the sections of the tank on delivery to the site into the completed unit, verbally ordered from him, being his voluntary method of delivery for his own convenience, and upon completion unavailable for use until appropriately fabricated into the structure by the plumbing contractor, places him in the category of a materialman rather than a subcontractor.

Consistent with that view, we hold the mechanic’s lien to have been properly perfected and susceptible to foreclosure.

Under the facts of this case, the recovery and the amount thereof would be controlled by the principles expounded in Allen, Heaton & McDonald, Inc., v. Castle Farm Amusement Co., 151 Ohio St., 522, 86 N. E. (2d), 782, wherein it is stated in the third paragraph of the syllabus:

.“In such a case, plaintiff; has the burden of alleging and proving not only (a) what he would have received under the contract from the performance so prevented, but also (b) what such performance would have cost him (or the value to him of relief therefrom). Unless he proves both of those facts, he cannot recover as damages the profits he would have earned from full performance of the contract. ’ ’

A decree in accordance with this opinion may be presented.

Decree accordingly.

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


text:
    Marino, Appellant, v. Reidel, Appellee.
    (No. 7696
    Decided April 13, 1953.)

      Messrs. Bradley, Foiles & Seasman, for appellant.

      Mr. Maurice W. Jacobs and Mr. 'Carl W. Frey, for appellee.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati in favor of defendant on his cross-petition and against plaintiff, appellant herein, on his petition.

The plaintiff predicated his right to recover principally upon a written contract. The defendant claimed this contract was subject to amplification, interpretation, and éxplanation.

The effect of the parol evidence admitted is to materially change the whole picture as far as the purchase price is concerned.

The contract provided for payment of a price of $750 for fixtures listed in detail and $4,100 for various items of merchandise in a store owned by plaintiff and sold to defendant.

The claim of the defendant is that, prior to executing the contract, it was orally agreed that the inventory price was tentative and that if the defendant, upon examination of the stock, found the inventory out of line, it would be corrected by plaintiff and adjustment made of price of merchandise.

It is the claim of the defendant that the inventory, instead of showing $4,100, showed a value of only $3,009.83.

It is the conclusion of the court that the value of the fixtures and the merchandise in the store were agreed upon in writing, and that the trial court erred in permitting the introduction of parol evidence to vary the definite terms of the contract, especially since such evidence related to conversations occurring prior to the execution of the contract in which such matters were integrated.

As to the sale price — the agreed price was $4,850, of which the defendant paid $2,800 in cash, and gave a note for $200. The balance of $1,850 was to be taken out in trade by the plaintiff.

In the contract, it is provided “balance of $1,850 (eighteen hundred and fifty dollars) to be taken out in purchases from the store in paints and wallpapers. When the above amount of $1,850 has been taken out in trade, the complete agreed purchase price will be paid in full. The $1,850 will carry 6 per cent interest per annum on the unpaid balance each month.”

Again, in the agreement it is provided:

“(B) The balance of eighteen hundred and fifty ($1,850) dollars to be credited against purchases of merchandise which Anthony Marino agrees to make from time to time from the said R. G. Reidel in amounts of approximately one hundred ($100) dollars per month. Anthony Marino’s account for purchases made shall be charged by the said R. G. Reidel at prevailing painters prices. Interest at six (6%) per cent per annum shall be payable on the unpaid balance until credit in the entire amount of eighteen hundred and fifty ($1,850) dollars shall have been given to Anthony Marino in the manner as herein provided. ’ ’

There is a conflict in the evidence as to whether such “painters prices” was wholesale price plus 10 per cent or retail price less 10 per cent, and the evidence is in conflict as to the quantity and quality of merchandise taken by the plaintiff.

There is also some dispute as to the amount to be credited on the note of $200, executed by the defendant.-

For these reasons, the judgment of the trial court is reversed, and, as the evidence is conclusive that as a matter of law the parties had a specific contract covering the value of fixtures and merchandise, and as the evidence is also conclusive on the payment of $2,800 and the giving of a note for $200, the only matters open which the court cannot here determine are the quantity and value of the merchandise taken out by the plaintiff (which, in view of the language of the contract, “painters prices” will require evidence to identify), the amount of interest due upon the balance, and what credit defendant is entitled to on the $200 note. The cause is remanded to the trial court, solely for such determination.

Judgment reversed.

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