text:
    Elliman, Appellee, v. Gombar et al., Appellants.
    (No. 4062
    — Decided December 7, 1949.)

      Mr. Minor Myers, for appellee.

      Messrs. Beery, Underwood, Ryder & Kroeger, for appellants.
   Doyle, J.

This action ivas one to recover damages for personal injuries received from a fall into a hole in the floor of the front porch of the defendants’ home.

The claimant of damages, on the evening of August -5, 1947, after dark, went to the home of the property owners for the sole purpose of inquiring of the whereabouts of a friend, “he having known the people who formerly lived in the * * * house, and believed that they still lived there.” As he walked across the porch toward the front door, he fell into an excavation which had been made by the owners for the purpose of enabling workmen to get under the porch floor to repair and replace the sills.

In suing the owners and occupiers of the property for his personal injuries, he charged them with negligence in leaving “an unguarded, unlighted, unbarricaded condition, trap or pitfall in the porch floor which was unsafe and known by the defendants to be so, or by the exercise of ordinary care should have been known to be dangerous and likely to cause the injury suffered by the plaintiff.”

A jury returned a verdict for the petitioner. This, appeal is taken from the judgment thereon entered in the Court of Common Pleas of Summit County.

1. To constitute actionable negligence, there must concur three essential elements — a duty of care, a breach of that duty by a negligent act or omission, and injury naturally resulting therefrom.

2. When reasonable minds can conclude only, from the evidence and all inferences to be drawn therefrom, that a party is a bare licenseee on the premises of another, it becomes a question for the court and not for the jury.

In the case at hand, there is no basis for any finding other than that the claimant was a bare licensee on the premises of the owners, by sufferance only for his own convenience.

In such circumstances, a recovery in favor of the injured person, if sustainable at all, must rest upon the doctrine that passive negligence in permitting “hidden dangers, pitfalls or obstructions” constitutes a breach of a duty that a property owner owes to a1 bare licensee who comes onto his property for his sole convenience. If passive negligence is a test of liability, it was proper, of course, in the case at hand, for the jury to determine whether a person in the exercise of ordinary care would have protected this uninvited visitor from the dangers of the porch. Certainly, there is no active negligence shown here.

3. The courts of this state have for years adhered strictly to the doctrine pronounced in Hannan, Admr., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504, that the duty of the owners and occupiers of property toward an uninvited visitor who comes thereon solely for his own convenience, is to abstain from inflicting intentional, wilful or wanton injuries upon him, and not to expose such bare licensee to hidden dangers, pitfalls or obstructions.

It is argued by the licensee that the owners of the property exposed him to hidden dangers, pitfalls and obstructions. In this connection, it is interesting to see the comment of the learned Judge Mauck in Chadwick v. Ohio Collieries Co., 31 Ohio App., 311, at page 316, 165 N. E., 302:

“ * * * * When the Hannan case recognizes possible liability for pitfalls and obstructions, we conclude that it means such pitfalls, etc., as are due to the active negligence of the licensor, and that a mere failure to do something that might obviate the danger to the licensee creates no liability. The hidden dangers, pitfalls, and obstructions, referred to in the Hannan case, that might result in liability to the licensee, consequently mean dangers of that character arising through the active, and not the passive, negligence of the licensor.” (Italics ours.)

In connection with this pronouncement of Judge Mauck, another distinguished former member of the Court of Appeals, Judge Richards, stated in Coleman v. Renesch, 18 Ohio App., 177, at page 180:

“The duty which rests upon a licensee to take his license subject to its concomitant perils still exists when he passes along a path obscured by the darkness of night. Indeed, that darkness but accentuates his perils and risks and is a condition for which the licensor is in no wise responsible.”

In the light of the wisdom which has followed the event, no doubt the owners would now place a warning or barricade in such a position as to put on notice a bare licensee or even a trespasser, of their work in connection with the repair of their own home, but such was not their legal duty under the law in this state when the accident happened.

The trend of the decisions among the various states is to divide those, whose right to enter an owner’s premises is derived solely from the owner’s consent, into several classes:

First, those who come upon his premises by his invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him. Invitation may be implied in various ways; for instance, when he enters the premises in the interest or for the benefit of the owners or occupants, as in the performance of a duty, etc.

Second, those commonly called bare licensees, being those to whom he accords his consent out of mere grace, their visit being for their own purely personal purpose.

In so far as the latter class is concerned, Ohio, as well as many other states, charges the owner with the duty only of abstaining from active negligence, as distinguished from passive negligence; for it is assumed that the bare licensee, knowing that the owner has no interest in his visit, and, therefore, cannot be expected to have made special preparations for his coming, will be on the alert to discover for himself the true condition of the premises.

It is the conclusion of the members of this court that the only duty owed the injured person in this case by the owners was to not intentionally, wilfully, wantonly, or, through active negligence, create pitfalls or hidden dangers, or cause such conditions to arise; that reasonable minds could conclude only that this duty was not violated by the property owners; and, that the trial court should, as a matter of law, have arrested the case from the jury and entered a judgment for the defendants, or failing that, should have entered judgment for the defendants non obstante veredicto.

The judgment is reversed, and final judgment will be entered for the defendants.

Judgment reversed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Green, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 7102
    — Decided June 20, 1949.)

      Messrs. Hoover, Beall, Whitman & Eiehel, for appellee.

      Mr. Timothy 8. Hogan, for appellant.
   By the Court.

The appeal here considered is one on questions of law arising by reason of a judgment of the Court of Common Pleas of Hamilton County, predicated upon a verdict awarding compensation to the widow of a deceased employee of the Stacey Brothers Gas & Construction Company, hereinafter called the company.

There is no dispute as to the facts involved. The controversy hinges on the inferences to be drawn from these facts, which the record shows to be as follows: Henry Edgar Green, the decedent employee, was killed while employed by the company in West Virginia. No claim is made that his death was not due to his employment, and the claim of his widow with the Industrial Commission of West Virginia has been allowed, although she, up to the present time, has not accepted compensation for her husband’s death. In this connection, it appears that the rate of compensation allowed in West Virginia is lower than that allowed in Ohio, hence the desire of the claimant to receive award of compensation in Ohio.

Counsel asserts, however, that should the judgment of the Common Pleas Court of Hamilton county be sustained, the award of the West Virginia commission will be accepted and credited on the amount to be awarded by the Ohio commission.

The company has adopted a definite course of procedure in the employment of men. It does business in many states. It is engaged in the erection of “gasholders” requiring the employment of more or less skilled workmen. Wherever a job is undertaken, a foreman who is a regular employee of the company is in charge and is given full power to hire and discharge employees, who are employed for that particular job alone. This arrangement is incorporated in a written contract, signed by the local employee and the company’s foreman on the job. In such contracts, it is provided: “Any previous employment with The Stacey Brothers Construction Company is terminated. ’ ’ This is the first line of the contract, and is in the same type as the rest of the contract. The second line of the agreement is: “This is a New Contract of Employment made at —-On the reverse side of this card constituting the contract of employment is a statement: “This card must be made out in entirety and signed by both parties before employee begins work on any job, whether having worked on any other job or not.”

It is clearly apparent that the deceased employee entered into a specific employment in and for the West Virginia job alone.

It appears, however, that he had been similarly employed under similar contracts in Georgia, Iowa and Cincinnati.

The evidence upon which the inference that the employment in West Virginia was under a contract created in Cincinnati is, that the decedent employee’s travel expense from Iowa to Cincinnati was paid by the company, and he was allowed travel time from Cincinnati to West Virginia.

The officer of the company testified that often during the recent war, in order to secure efficient employees, their travel expense was paid, or they were allowed travel time in order to induce them to report for work at a job located at a point other than their last employment, and that this was a type of bonus allowed in certain special cases involving efficient workmen.

It further appears that the company was particularly anxious to induce the decedent employee to work on the West Virginia job and that his expenses from Iowa to Cincinnati were paid and travel pay was allowed from Cincinnati to West Virginia, in order that he would be available for the West Virginia job. The company also gave him temporary employment in Cincinnati pending the beginning of work in West Virginia, which did not start until some time after the end of the Iowa job.

If there was any contract involving the West Virginia employment made in Ohio, it must have been made after the decedent employee reached Cincinnati. There is no evidence that such a contract was made. The company officer specifically testified that while it was true that after finishing work in Cincinnati, it allowed the decedent employee travel pay to West Virginia, it was absolutely up to the foreman in West Virginia to employ him or not as he saw fit, and nowhere is there the slightest evidence to the contrary.

It is further stated that while working in Ohio the decedent employee was covered by workmen’s compensation insurance in Ohio, and that this was dropped when he left for West Virginia, and workmen’s compensation under West Virginia was taken up when the decedent started work in West Virginia.

In the record, it is stated:

“Q. When a job is started in West Virginia are those men who work on that job, are they hired in Cincinnati or are they hired in West Virginia? A. They are hired in West Virginia by that job. That’s entirely up to the foreman on the job what men he hires. We don’t tell him what men to hire. We tell him ‘A man is coming there and if you want a man, why, Green can fill the bill there, ’ and he goes in there and lie hires for that foreman. If that foreman don’t like that man he don’t hire him. That’s np to that foreman entirely.
“Q. Then your method of hiring is, as these contracts indicated, it’s a separate contract of employment at the site where the work is to be performed? A. That’s correct.”

A careful examination of the entire record fails to show any evidence of a contract made in Ohio between the company and the decedent employee covering the work in West Virginia, and as the death occurred in West Virginia, the compensation cannot be awarded in Ohio. Sections 1465-68, 1465-70, 1465-72 and 1465-90, General Code.

The cases of Prendergast v. Industrial Commission, 136 Ohio St., 535, 27 N. E. (2d), 235; Industrial Commission v. Gardinio, 119 Ohio St., 539, 164 N. E., 758; Krull v. Industrial Commission, 68 Ohio App., 203, 39 N. E. (2d), 883; and Johnson v. Industrial Commission, 45 Ohio App., 125, 186 N. E., 509, cannot be considered dispositive of the questions here presented, and are not in conflict with the conclusion required by the record that the judgment must be reversed and judgment here entered for the defendant.

Judgment reversed.

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


text:
    Lutz, Appellee, v. White et al., a Partnership, Appellants.

      (No. 7113
    — Decided June 27, 1949.)

      Mr. Ralph E. Pott and Mr. G. Watson Hover, for appellee.

      Mr. Robert G. McIntosh, for appellants.
   By the Court.

The plaintiff, appellee herein, obtained a judgment by the consideration of the Municipal Court of Cincinnati against the defendants, appellants herein, for damages to his automobile. On appeal to the Court of Common Pleas, that judgment was affirmed. This appeal is from that judgment of affirmance.

In his bill of particulars, the plaintiff alleged that the defendants caused a ditch to be dug in Fairmount avenue, in the city of Cincinnati, and failed to properly light and maintain proper warnings so as to notify the plaintiff of the existence of the ditch, that he was operating his automobile in a westerly direction on Fairmount avenue at about 9:15 p. m., and, due to the failure to maintain lights or other warning, he drove his automobile over the ditch, resulting in damage to the automobile. In their statement of defense, the defendants admitted the plaintiff owned the automobile and denied all other allegations.

The only question presented on this appeal is whether the plaintiff was guilty of contributory negligence as a matter of law. This question can be determined only by a consideration of all the evidence, unless we find that the plaintiff had admitted facts constituting contributory negligence.

We are presented with a narrative bill of exceptions, the certificate to which contains no recital that it contains all the evidence, and there is no such express recital in any other part of the bill. In addition to not-containing a recital that it contains all the evidence, the certificate refers to “exhibits attached” but there are in fact no exhibits attached. The bill of exceptions does recite that the plaintiff “to maintain the issues upon his part, offered the following witnesses,” followed by the testimony of three witnesses, including the plaintiff himself, and followed by the statement that, 4‘Thereupon the defendant moved for a directed verdict upon the testimony of the plaintiff.” After reciting that that motion was overruled, the bill continues with the statement that,4 4 Thereupon the defendant to maintain the issues on his part presented the following witnesses.” The recital of the defendants’ evidence was followed by the plaintiff’s rebuttal evidence, and this was followed immediately with the statement that, “Thereupon, the plaintiff rested” upon which the defendant 4 4 Whereupon * * * moved for a directed verdict.” »

Can the court pass upon this issue of contributory negligence on this bill of exceptions?

The. plaintiff has not raised this question of the inadequacy of the certificate to the bill of exceptions and, for that reason, we have been reluctant to raise it sua sponte, but the frequency with which the court is presented with narrative bills of exceptions, prepared by unofficial reporters, compels us, although reluctantly, to take notice of it in this case.

In 2 Ohio Jurisprudence, 449 and 450, Section 393, it is stated:

4 4 In those cases where the bill of exceptions must contain all the evidence, there must be an affirmative showing to this effect; the bill of exceptions must expressly certify or show by necessary implication that it contains all the evidence given upon the trial. The certificate of the trial judge constitutes the only means of establishing that all of the evidence offered in the trial court is contained in the bill of exceptions. It has been said that a bill of exceptions must state affirmatively that it contains all of the evidence, where it is essential, in order to have all of the claimed errors reviewed, that all of the testimony taken in the trial court be presented in the bill. Undoubtedly an express statement in 'the certificate that the bill of exceptions contains all the evidence offered by either party in the case would be sufficient, and it would also be desirable.”

It is true an express recital that the bill contains all the evidence is not required where there is an implication to that effect necessarily arising from the recital in the bill. On this subject, it is stated in 2 Ohio Jurisprudence, 451, Section 393:

“What is a showing by necessary implication must depend upon the facts of the individual case. A recital in detail of the evidence offered does not necessarily imply that the evidence thus set forth in the bill of exceptions was all that was offered.”

In Mack, Stadler & Co. v. Great Western Despatch, 3 C. C., 36, 2 C. D., 22, the court was required to pass upon this question in relation to a bill of exceptions containing more indicia of completeness than the bill in this case, and yet the court held that it could not say that it contained all the evidence, saying at pages 38 and 39:

“Must it necessarily be implied from the language of this bill of exceptions thus set out, that it contained all of the evidence received in the trial court? It does not say so. It does not contain the common formula, ‘that the foregoing was all the evidence received in the case.’ And in view of the strictness required in this respect by the decisions of the Supreme Court, we are not able to say that such is the necessary implication. It does not expressly appear that everything which Mr. Mack testified to, is set out in the bill, nor does it affirmatively appear that no other witness was examined. It is true, that knowing the manner in which stenographers usually record everything that takes place at a trial, we may feel that it is highly probable that we have before us, all of the evidence on which the trial court acted — but this is a fact which must be shown by the bill itself, and the opinion which we may have, founded on the usual correctness of stenographers, is not to outweigh the legal presumption that the trial court acted correctly, and therefore in the absence of proof on the face of the bill itself that such was not the fact, that there was other evidence than that which is set forth in it.”

On the effect of the omission of exhibits it is said in 2 Ohio Jurisprudence, 453, Section 395, that:

“It has already been shown that, where the certificate shows that exhibits are omitted from the bill, the court cannot review the weight of evidence.”

We are of the opinion that the court would not-be justified in holding that this bill of exceptions shows on its face that it contains all the evidence and, as the error assigned is one that cannot be determined without a consideration of all the evidence, the judgment must be affirmed.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Doyle, J.

text:
    Patrick, Appellee, v. The Western Union Telegraph Co., Appellant.
    (No. 3972
    — Decided April 8, 1949.)

      Mr. H. E. Sprigle, for appellee.

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellant.
   Doyle, J.

The plaintiff’s petition declared for the recovery of damages for the failure of the defendant to transmit to her, within a reasonable time, a telegraphic order to pay money. The appeal is by The Western Union Telegraph Company from a judgment for $500 entered upon the verdict of a jury in favor of the plaintiff and against the said company.

The evidence, reduced to its material aspect, tends to prove that on April 28, 1946, Guy Patrick gave to the telegraph company’s employee at the Akron, Ohio, office, $40 cash, and $1.69 representing charges, tolls and tax, to send to Ms wife, Ollie Patrick, the said $40 as a telegraphic money order. The order was addressed: “Mrs. Ollie Patrick, c/o Jennett Graise, New-town, Union Springs, Ala.” The message to be delivered with the order was: “Ship ladder.” The instructions given by the sender to the company’s employee is reflected in the record of his testimony as follows:

“Well, I talked to the girl at the desk, and I asked her how long it would take to get that message through, because it was a very important message, I wanted them to receive it at once, and she told me that it would take two hours for that to get through. I said ‘‘Well, that is O. K., if it gets there today that will be all right. I wanted to be sure that she ©an get the money in the morning,’ and so and so, that is all I know about it.”

It further appears that six days later — on May 4, 1946 — plaintiff received a letter from her husband stating that he had wired her money; at about 6 p. in. on this day, she called at the telegraph office and found it closed; the next day (Sunday) she again called and found the office closed; on the next morning, May 6th, she was given the money pursuant to her call.

It is the claim of the plaintiff, and she so testified, that she was afflicted with diabetes; that she needed the money to purchase insulin and certain special foods to be used by her in treating the disease, and that she asked her husband to send money for that purpose; that, as a result of the company’s delay in delivering the money order, she was unable to make these urgent purchases at a time when they were needed, the result of which caused her serious physical injury and discomfort.

One of the errors urged is that “the court erred in submitting the question of special damages to the jury.” To this claim, attention is now directed.

The case here under review was an action and trial growing out of a claimed breach of duty — tort—rather than out of a claimed breach of contract. As applicable to such an action, the general rule may be stated as follows: A telegraph company is liable for such damages as naturally and proximately flow from its negligent failure to transmit and deliver a message or money order without unreasonable delay.

If the action had been based upon breach of contract, the rule of damages pronounced in Hadley v. Baxendale, 9 Eng. Exch., 341, 156 Eng. Rep. R., 145, would be applicable. It has been consistently followed in this state. Western Union Telegraph Co. v. Sullivan, 82 Ohio St., 14, 91 N. E., 867, 137 Am. St. Rep., 754; First National Bank of Barnesville v. Western Union Telegraph Co., 30 Ohio St., 555, 27 Am. Rep., 485; Concrete Steel Co. v. Erie Rd. Co., 28 N. P. (N. S.), 464. By the rule there stated, damages for breach of contract are confined to such as “may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.” (Italics ours.)

In distinction to the above rule applicable to contracts, we have, in this state, the rule that, in tort liability, the wrongdoer is generally held to be liable for the injurious results which flow from the wrongful act by ordinary and natural sequences.

“In delimiting the scope of duty to exercise care, regard must be had for the probability that injury may result from the act complained of. No one is bound to take care to prevent consequences, which, in the light of human experience, are beyond the range of' probability. Only when the injured person comes within the circle of those to whom injury may reasonably be anticipated does the defendant owe him a duty of care. * * *

“ * * * * It is enough that the probability of injury to those in the plaintiff’s general situation should have been perceived by a reasonably prudent and careful person.” Gedeon, Admr., v. East Ohio Gas Co., 128 Ohio St., 335, at p. 338, 190 N. E., 924.

Under this doctrine of tort liability, while one is expected to anticipate and guard against all foreseeable consequences, he is not bound to foresee and provide against that which no reasonable man would expect •to happen. In this state, damage growing out of negligence is tested by the reasonable foreseeability of .an event which may result in injury.

In Clemens v. Western Union Telegraph Co., 28 A. (2d), 889, at p. 891 (1942), appears the following statement, which we recognize as the pronouncement of a ¡sound doctrine:

“* * * jn actions sounding in tort brought against telegraph companies for damage resulting from the failure to transmit or deliver messages, * * * there is to begin with a definite contractual relationship. 'The delictual and contractual conceptions of liability co-exist. If the action is ex contractu, the damages .are called special, and are limited under the rule in Hadley v. Baxendale. If the action is ex delicto, the damages are necessarily consequential, and the question is with respect to the right to recover such damages. Special damages in the one form of action mean •substantially the same thing as consequential damages in the other form of action.”

In 27 Am. & Eng. Ency. of Law (Second Ed.), 1059, it is stated:

“While actions against telegraph companies are not necessarily or usually ex contractu, but ex delicto for a breach of a public duty, the cause of action is so far dependent upon the original contract of sending as to make the rule just stated (Hadley v. Baxendale) controlling, and it has been universally applied in this class of actions without regard to whether the particular action is ex contractu or ex delicto.”

Again, in Kerr Steamship Co., Inc., v. Radio Corp. of America, 245 N. Y., 284, 157 N. E., 140, 55 A. L. R., 1139:

“* * * there is little trace of a disposition to make the measure of the liability dependent on the form of action. ’ ’

The case under consideration, as heretofore stated, was tried as an action in tort. The jury found the defendant company negligent in its failure to deliver the message and money order within a reasonable time. We find that the evidence justified this conclusion. Establishing, as we do, the legality of this premise, our next step is to determine whether the evidence justified a judgment for consequential damages in excess of the actual cost of the message.

If the. company, through its servants, had notice, from the message itself, or from some circumstance attending its transmission, or from other information furnished with the message, that a delay in delivery would probably be attended with other damage, and such damages could have been anticipated and foreseen by a prudent business man as a natural and probable consequence of a negligent delay in delivery, then a judgment for consequential damages, ex delicto, would be justified.

The question of proximate cause is one usually for the jury. It is generally a mixed question of law and fact. But in a case where reasonable minds could not differ on the question of fact or the reasonable inferenees to be drawn therefrom, it is'the duty of the court to determine the question as a matter of law. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246.

And “Under our law it is just as pernicious to submit a ease to a jury and permit the jury to speculate with the rights of citizens when no question for the jury is involved, as to deny to a citizen his trial by jury when he has the right.” J. C. Penny Co. v. Robison, 128 Ohio St., 626, paragraph six of syllabus, 193 N. E., 401, 100 A. L. R., 705.

Now, assuming that it is established by sufficient evidence that, if the money had been immediately made available to the plaintiff, she could and would have purchased and used insulin and special foods which would have saved her from the condition of illness which she described, such a situation, under the evidence in the record before us, could not fairly and reasonably have been foreseen according to the usual course of things from a default in not promptly delivering the message and money order. Certainly, there were no special circumstances indicated in the message itself or from any other source, from which it could reasonably be foreseen that a physical injury would result from an unreasonably delayed delivery. The person who sent the message gave no such indication in the message itself, nor did he acquaint the servant of the defendant with any fact except that it was an important message and that he wanted to be sure that it would arrive by the next morning.

It is our conclusion that this evidence falls far short of sustaining the essential elements of liability for physical injury, and that on this question reasonable minds could come to no other conclusion.

The judgment will be reversed as being contrary to law, and, there being no dispute of facts herein, this court will enter the judgment which the trial court should have rendered.

It is ordered that plaintiff recover from defendant $1.69, the cost of said message, plus interest on $40 at 6% for eight days, and her costs herein expended.

Judgment accordingly.

Stevens, P. J., and Hitnsicker, J., concur.


author: Miller, P. J.

text:
    Kemp et al., Appellants, v. Lynch, Appellee. Kemp et al., Appellants, v. Pinney, Appellee. Kemp et al., Appellants, v. Wright, Appellee.
    (Nos. 668, 669 and 670
    — Decided May 3, 1949.)

      Mr. Richard H. LeFevre, for appellants.

      Mr. Jesse K. Brumbaugh, for appellees.
   Miller, P. J.

These three appeals present the same legal question and will, therefore, be considered together. The actions were brought by the plaintiffs as taxpayers of the village of Union City, Ohio, on behalf of such municipal corporation and all taxpayers. They seek to recover on behalf of the village certain sums of money alleged to have been paid to the defendants for purchases made by the village from defendants while they were acting as village officials, in violation of Section 3808, General Code. The petitions set forth the dates of the alleged violations, all of which occurred more than six years prior to the commencement of the actions.

They allege further that the Bureau of Inspection and Supervision of Public Offices made findings in favor of the village of Union City against the defendants in the various amounts set forth and that the same remain unpaid.

Demurrers were filed to the petitions setting forth two grounds:

(1) That the actions were not brought within the time limited for such action.

(2) That the petitions do not state facts which show a cause of action.

The plaintiffs, appellants herein, urge that the statute of limitations is not applicable to these cases, and further, if the same were applicable, the statute would not begin to run until the filing of the reports of the bureau with the village as provided by Section 286-3, General Code. The trial court found that the subjects of the actions were amenable to the statute of limitations; that the actions were not timely brought; and that the petitions do not come under the provisions of Section 286-3, General Code, and companion sections. The demurrers were sustained and the actions dismissed. We are of the opinion that the court properly held the actions were subject to the limitation set forth in Section 11222, General Code, but was in error in holding that the six-year limitation period had expired prior to the commencement of the actions. Lessee of City of Cincinnati v. First Presbyterian Church, 8 Ohio, 298, 32 Am. Dec., 718; Hartman v. Hunter, Treas., 56 Ohio St., 175, 46 N. E., 577; Mount v. Lakeman, Clerk, 21 Ohio St., 643; State, ex rel. Campbell, v. Ballard, 8 Ohio App., 44, 30 C. C. (N. S.), 353. The ruling of the court would be proper were it not for the fact that Section 286-3, General Code, sets forth when the statutory period of limitation begins to run, which clearly indicates that it was to be applicable in cases of this kind. The section provides:

“No cause of action on any matter set forth in any report made under authority and direction of section 286, General Code, shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for the enforcement thereof, and all statutes of limitations otherwise applicable thereto shall not begin to run until the date of such filing.”

Counsel for the defendants urges that the petitions do not allege that the reports of the bureau were ever filed with the proper village officials; therefore the causes of action have not accrued under the statute. The petitions did allege, however, that a finding was made by the bureau against each of the defendants in the amount sought and that the same remains unpaid. Section 286-1, General Code, sets forth what the petition shall contain: '

“* * * In any such action it shall be sufficient for the plaintiff to allege in the petition so much of the report of the bureau of inspection and supervision of public offices as relates to the claim against the defendant therein and that the amounts claimed against the defendant are unpaid, and it shall not be necessary in such petition separately to state and number any separate causes of action, the findings of such report, upon whatever claims or circumstances based, being considered for that purpose as constituting a single cause of action; nor shall the plaintiff be required to set forth in the petition any other or further matter relating to such claims. A certified copy of any portion thereof shall constitute prima facie evidence 'of the truth of the allegations of the petition.”

We are of the opinion the petitions comply fully with the statutory requirement. The filing of the report with certain municipal officials is mandatory under Section 286, General Code, and the presumption must prevail that the bureau’s inspectors performed their legal duty, until such presumption is overcome by the evidence. The matter of the filing of the report and the date of the same becomes a matter of defense.

The judgments are reversed and the causes are remanded with instructions that the demurrers be overruled.

Judgments reversed.

Hornbeck and Wiseman, JJ., concur.


author: Wiseman, J.

text:
    Deitsch, Appellant, v. Deitsch, Appellee.
    (No. 4300
    — Decided September 28, 1949.)

      Messrs. Herbert & Dornbey, for appellant.

      Messrs. Crabbe, Garete S Hillman, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, Division of Domestic Relations, of Franklin County.

Where, in an action for divorce and alimony, the court on application allows the wife alimony pendente lite under the provisions of Section 11994, General Code, and in the same entry orders the wife to surrender the possession of an automobile to a third party, such order is made without authority and constitutes reversible error. In such a proceeding the court is controlled by statute and is not authorized to exercise general equity powers. Durham v. Durham, 104 Ohio St., 7, 9, 135 N. E., 280; Marleau v. Marleau, 95 Ohio St., 162, 115 N. E., 1009. The judgment is reversed.

Judgment reversed.

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


text:
    Deitsch, Appellant, v. Deitsch, Appellee.
    (No. 4300
    — Decided July 11, 1949.)

      Messrs. Herbert é Dombey, for appellant.

      Messrs. Crabbe, Gar eh & Sillman, for appellee.
   By the Court.

This cause is submitted on motion by the defendant, appellee herein, seeking an order dismissing the appeal upon the ground that the portion of the order to which the appeal is directed does not constitute a final order. The record discloses that the plaintiff, appellant herein, brought an action against the defendant for divorce and alimony in the Court of Common Pleas and filed a motion for temporary alimony and expense money for the support of herself and the children of the parties, during the pendency of the action. The court made an order granting temporary alimony for the support of the plaintiff and her two children during the pendency of the action. The judgment entry also provides:

“The plaintiff is hereby ordered to forthwith release to Prima, Inc., possession of a Cadillac automobile which is now garaged at the residence occupied by the plaintiff, and the plaintiff is ordered to permit Prima, Inc., or its agents, to remove said automobile from said garage.”

The appeal is directed to the order disposing of the Cadillac automobile.

We are of the opinion that this is a final order depriving the plaintiff of a substantial right. An application for temporary alimony is a special proceeding under Section 12223-2, General Code. See King v. King, 38 Ohio St., 370; Taylor v. Taylor, 74 Ohio App., 191, 57 N. E. (2d), 931; 2 Ohio Jurisprudence (Pt. 1), 237, Section 116. The motion to dismiss will be overruled.

Motion overruled.

Miller, P. J., Hornee ok and Wiseman, JJ., concur.


text:
    The State, ex rel. Sparto et al., v. Williams, Judge.
    (No. 671
    — Decided May 9, 1949.)

      Mr. Louis A. Ginocchio and Messrs. Goubeaux & Goubeaux, for relators.

      Mr. Cecil E. Edwards and Mr. Paul W. Younker, for respondents.
   Wiseman, J.

This cause is submitted on demurrer to the petition for a writ of prohibition enjoining Edward Williams, judge of the Juvenile Court of Darke County, from proceeding in a cause involving the custody of Rita Mae Sparto, a child twelve years of age, the daughter of the relators, who is now in the custody of an uncle and aunt, residents of Darke county, Ohio.

In the petition the following pertinent facts are alleged :

The uncle and aunt petitioned the Probate Court of Darke County for leave to adopt the child, which was denied. The judge of the Probate Court in the capacity of judge of the Juvenile Court, without certification as provided in Section 10512-21, General Code, and without a separate hearing, made an order respecting the custody of the child. Prom that order an appeal was taken to the Court of Appeals which affirmed the judgment of the Probate Court as to the denial of the adoption but reversed as to the custody of the child and remanded the cause to the Probate Court for a proper certification to the Juvenile Court for further proceedings in conformity to the provisions of Section 10512-21. See In re Adoption of Sparto, 52 Ohio Law Abs., 189. Subsequently the proper certification was made and, on hearing, the judge of the Juvenile Court dismissed the cause on the ground that it had no jurisdiction. A motion for new trial was duly filed, supported by an affidavit of the aunt that the minor was a neglected child within the meaning of the provisions of Section 1639-23, General Code. A new trial was granted. At a subsequent hearing the court found that it had jurisdiction to determine the custody of the minor; that the relators had not abandoned the child or lost their right through unfitness or inability to provide a suitable home for the child; that the minor was not a dependent, neglected or delinquent child; and that the relators should have the custody and control of the child. The court found further that, inasmuch as the child had not resided in the home of relators for a considerable length of time, the Juvenile Court should retain continuing jurisdiction until the child had made the proper adjustment; and that the complaint be dismissed and custody of the child be awarded to relators subject to the order of the Juvenile Court. The court ordered further that execution of such judgment be stayed pending appeal, and that the minor remain in the custody of the uncle and aunt until the determination of the appeal. It is not alleged that an appeal was perfected.

A motion for new trial was duly filed which came on for hearing before a successor judge, the respondent herein. The court rendered a written opinion in which it held that the motion for new trial should be sustianed on the ground that there was evidence that the relator had abandoned the child. This opinion has not been journalized due to the bringing of this action.

Do the facts alleged show that relators are entitled to the relief sought? The relators contend that the court found it had no jurisdiction and that in fact it has no jurisdiction to make an order or to proceed further in the matter. The respondent contends that the court had jurisdiction to determine custody and to make an order in respect thereto.

Under the provisions of Section 10512-21, General Code, which is a part of the Probate Code, upon a proper certification of the case to the Juvenile Court jurisdiction is conferred upon such court to determine custody of the child. Section 1639-16, General Code, confers exclusive original jurisdiction on the Juvenile Court. Subdivision (a) 2 provides that the Juvenile Court shall have jurisdiction to “determine the eustody of any child not a ward of another court.” And subdivision (d) of such section provides that “the court shall have jurisdiction to hear and determine the case of any child duly certified to the court according to law by any court of competent jurisdiction, and to make disposition of said child in accordance with the provisions of this chapter.”

In our opinion the provisions of the aforementioned sections are sufficient to confer jurisdiction on the Juvenile Court to determine the right of custody of such child. The court had the authority to retain and exercise continuing jurisdiction. See Section 1639-35, General Code.

Relators rely on the case of Paddock v. Ripley, 149 Ohio St., 539, 541, 80 N. E. (2d), 129, in which the court held:

“Under the Juvenile Court Code, such courts have jurisdiction only of delinquent, neglected or dependent children. ’ ’

The issue herein raised does not require an analysis or application of the principle of law announced in the Paddock case, since it is quite clear that if the court in the instant case did not have jurisdiction on any other ground, it acquired jurisdiction when the affidavit was filed by the aunt that the minor was a neglected child within the meaning of the provisions of Section 1639-23, General Code. A full hearing was had on the issue raised by the filing of the affidavit. After judgment on that issue a motion for new trial was filed in which the court has announced its opinion. This is the first motion for new trial on the issue raised by the filing of the affidavit.

No facts are alleged showing that the court has lost jurisdiction. The finding of the trial court that it had lost jurisdiction is immaterial and must be disregarded, where the petition is tested on demurrer and facts are alleged which show7 that the court at- all times had and still has jurisdiction.

The court had jurisdiction of the subject matter involved in the controversy and it may proceed to enter an order in regard thereto. John Weenink & Sons Co. v. Court of Common Pleas, 150 Ohio St., 349, 355, 82 N. E. (2d), 730; 32 Ohio Jurisprudence, 580, Section 20; 14 American Jurisprudence, 435, Section 243.

Relators contend that the court will commit error if it is allowed to journalize an order in conformity with its opinion. A writ of prohibition does not lie to prevent erroneous decisions. 32 Ohio Jurisprudence, 586, Section 24.

The relators are afforded an adequate remedy at law by an appeal at the proper time. See State, ex rel. Meyer, v. Conn et al., Judges, 151 Ohio St., 8, 84 N. E. (2d), 213; 32 Ohio Jurisprudence, 572, Section 10.

The demurrer to the petition is sustained.

Demurrer sustained.

Miller, P. J., and Hornbecii, J., concur.


author: Carpenter, J.

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

      (No. 587
    — Decided October 24, 1949.)

      Mr. Herbert R. Freeman, prosecuting attorney, for appellee.

      Mr. Michael A. Picciano and Messrs. Carpenter S Carpenter, for appellant.
   Carpenter, J.

A verdict of guilty and sentence on a charge of grand larceny is the subject of this appeal on questions of law. The several assignments of error have had consideration by the court and are found not sustained, except the sixth which charges the court with “irregular practice in giving instructions to the jury outside of the courtroom and in the absence of the defendant.”

After the jury had deliberated for some time, the foreman, through the bailiff, reported to the court in writing that the jury was deadlocked, eleven to one. The jury was taken into court and after some discussion between the court and the foreman, the court directed the jury to continue its deliberations.

When the jury was conducted back to the jury room by the bailiff, the foreman gave the officer another note to the court which said:

“Your honor, one of our jurors requests to know what is meant by circumstantial evidence. Please explain if it is in your power.
“E. T. Hay,
“Foreman.”

This note was handed to the judge who, with the prosecuting attorney and counsel for the defense, was in the law library, which is across a small corridor from the courtroom where the defendant, who was at liberty on bail, was waiting. After the judge and counsel had read the note, the judge wrote out his instruction on circumstantial evidence^ gave it to the bailiff and directed him to take it to the jury, which was done. Shortly after that the jury reported that it had agreed, and was escorted to the courtroom; the verdict of guilty was returned and the jury was polled.

The complaint is that all the proceedings of the -court in relation to this instruction took place in defendant’s absence, in violation of his constitutional right to a public trial and to be present at it.

In four decisions the Supreme Court has spoken very definitely upon this question: Kirk v. State, 14 Ohio, 511; Rose v. State, 20 Ohio, 32; Jones v. State, 26 Ohio St., 208; State v. Grisafulli, 135 Ohio St., 87, 19 N. E. (2d), 645.

In all these cases the defendant was absent from the presence of the court because he was in jail at the time. The state here urges that those decisions do not apply because this defendant was not in jail, and was not under any restraint at the time the court and counsel were considering the instruction to be given the jury. He was under the restraint of ignorance of what was going on in his trial. No one claims that he had any notice or knowledge that a transaction in his trial was taking place in the law library. He was in attendance in court in the courtroom where he might well assume that if anything further was done incident to his trial, it would be done in the courtroom. Such circumstances as these were evidently in the contemplation of the court in Rose v. State, 20 Ohio, 32, when the court said, at page 34:

“We conceive it to be the right of an accused person to be present during the trial of his case, and at the return of the verdict, and we think that when deprived of these privileges by being imprisoned in a jail, or in any other improper manner, the verdict returned against him should not be followed by judgment or sentence.” (Italics added.)

In Wilson v. State, 2 Ohio St., 319, the accused was on bail and was voluntarily absent from the court when the verdict was returned, and the court in affirming the sentence, quoting the above from Rose v. State, supra, said: “Nor was he prevented by any improper means from being present.” And in State v. Grisafulli, supra, the accused was in jail when additional instructions were given. On page 93, Judge Zimmerman recognized that the accused may “voluntarily absent himself from his trial.” Delzoppo was not absent, but he knew nothing about what the court was doing.

In Campbell v. Beckett, 8 Ohio St., 210, a civil case, the jury, during its deliberations, asked additional instructions which the court gave in the absence of the plaintiff and his counsel and without even attempting to give them notice of what it was about to do. For this error the judgment was reversed. While this is different from the case at bar, it illustrates the importance the court attaches to the right of a litigant to know what is taking place in the trial of his case.

This being a violation of the accused’s positive constitutional right to a public trial and to be present at it, his counsel could not waive it, and the fact that his counsel were in the presence of the court and participated in what was done did not cure the error — so said the court in both the Jones and Grisafulli cases.

For this prejudicial error, the judgment will be reversed and the cause remanded for further proceedings.

Judgment reversed and cause remanded.

Conn and Fess, JJ., concur.


author: Wiseman, P. J.

text:
    Sours, Director of Highways, Appellee, v. Ralston Steel Car Co. et al., Appellants.
    (No. 4109
    — Decided September 30, 1948.)

      Mr. Hugh 8. Jenkins, attorney general, and Mr. Frederick L. Orum, for appellee.

      Mr. Marion A. Ross and Mr. Theodore L. Horst, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, dismissing the amended answer and cross-petition of the defendant-appellant Maie C. Lampe in a proceeding instituted by H. G. Sours, Director of Highways of the state of Ohio, for the purpose of adjudicating all claims wherein the claimants and the Director of Highways were unable to agree.

The controversy arose by reason of a grade-crossing elimination at the intersection of James road and the rights of way of the Baltimore & Ohio Railroad Company, the Pennsylvania Railroad Company and the New York Central Railroad Company in the city of Columbus, Ohio. It is undisputed that the Director of Highways duly entered on his journal a notice of intention to proceed and published the notice of intention to proceed as required by law. Service of the notice was made upon all owners of property considered by the Director of Highways as abutting upon the improvement. The appellant Lampe was not regarded as the owner of abutting property and was not served with notice. She failed to file a claim for ■compensation or damages within the time prescribed in the published notice.

On December 30, 1942, the Attorney Genera] of Ohio filed an application in the Common Pleas Court of Franklin County for an adjudication of the claims on which there was a disagreement. Thereafter Lampe upon her application was made a party defendant in this proceeding and was granted leave to file an answer and cross-petition. The matter came on to be heard on her amended answer and cross-petition and the motion of appellee for an order dismissing such amended answer and cross-petition. Some evidence was taken after which the court sustained the motion to dismiss.

Although Lampe has assigned five separate grounds of error, her counsel in his brief states that the record presents one question of law, viz., has she the right to have her claim for damages to her property tried to a jury, where the trial court has determined that although her property “abuts on James road and that Janies road has been closed north of defendant’s property, the evidence also disclosed that said defendant has reasonable access to and from her property and that, therefore, her claim may not be submitted to a jury. ’ ’

Inasmuch as Lampe failed to file a claim for compensation or damages within the time designated in the published notice, her claim is deemed to have been waived under Section 1182-12, General Code. Lampe’s only remedy is to establish the fact that she is the owner of property abutting on a portion of the highway which was physically changed or which has been vacated, and, therefore, was entitled to have notice served on her as an abutting property owner.

The determination of this issue requires the court to construe Section 1182r12, which in part provides:

‘ *' A true copy of said notice shall be served upon the owner or owners of all property to be taken, and on owners of land abutting on any portion of the highway to be physically changed, or which will be vacated in the construction of the improvement.”

Is Lampe the owner of abutting property? If so, she is entitled to have her claim for compensation and damages submitted to a jury under the provisions of Section 1182-13, General Code. If she is not an abutting property owner within the meaning of the provision of Section 1182-12, supra, she is regarded as having been served by publication, and, a claim not having been filed within the required time, the claim is deemed to have been waived.

The essential facts are briefly stated as follows:

James road was a continuing thoroughfare extending in a northerly and southerly direction in the eastern part of the city of Columbus. A short distance north of Lampe’s property, which was located on the west side of James road, there was a railroad crossing. This crossing was eliminated and that portion of James road was vacated. The southern end of the vacated strip of road was at a point determined by projecting the northern lot line of Lampe’s property across James road. The northeast corner of Lampe’s property becomes the southwest corner of the strip of road vacated. No portion of the highway which lies in front of the property was vacated. Neither was it physically changed in any respect. The ingress and egress to such property from James road was not disturbed or affected. A portion of James road several hundred feet south of Lampe’s property was relocated so that James road intersects with the new highway at right angles. At this intersection there has been constructed a “turn-around” for use of busses transporting persons to and from the United States Government depot which is located on the east side of James road. The new improved highway extends in a northerly and southerly direction a short distance to the west of Lampe’s property. Near the intersection of James road and the improved highway, an upgrade begins, and immediately to the west of Lampe’s property the improved highway is elevated approximately 30 feet to provide for the viaduct extending across the railroad right of way. The improved highway crosses the railroad right of way at an elevation of approximately 40 feet, and beyond the viaduct access roadways are constructed in the nature of a “clover-leaf” development. The property of Lampe at no point abuts the improved highway.

Access is given to the street system from Lampe’s property by travel in a southerly direction over James road several hundred feet to the intersection of such road and the improved highway. The vacation of James road to the north of Lampe’s property cuts off access and travel from and to her property from this direction. The vacation of this strip of road forms a cul-de-sac.

Compensation and damages are awarded to three classes of property owners:

First, owners of land taken or to be taken.

Second, owners of land abutting on any portion of the highway which has been or is to be physically changed.

Third, owners of land abutting on the portion of the highway vacated in the construction of the improvement.

Lampe does not fall into the first class, but it is contended that she falls into the second and third classes.

She claims that in approaching the improved highway and joining the flow of traffic thereon from James road it is necessary to travel up grade, but the record shows these two highways are joined at grade. She contends also that by reason of the construction of the viaduct and the elevation of the highway to the west of her property more water is caused to flow across her property. However, no claim for damages on this ground is alleged in her cross-petition. The gist of her claim is that her property abuts on a portion of the highway which was physically changed and which was vacated. Her claim to compensation and damages is mainly based on her contention that, by the elimination of the crossing on James road and the vacation of this strip of the road, the means of access to her property has been affected to her detriment.

We are not without a pronouncement of our Supreme Court in such a matter. In New York, C. & St. L. Rd. Co. v. Bucsi, 128 Ohio St., 134, 190 N. E., 562, 93 A. L. R., 632, the syllabus is as follows:

“1. Where a duly dedicated and accepted east-and-west street of a city is vacated by the city some distance from its eastern terminus and completely closed to travel, the owner of property abutting upon such street, but not upon the vacated portion thereof, has no right of action for damages because of such vacation, so long as his access to the city street system to the west is not impaired.
“2. Under such circumstances, the abutting property owner’s damage, if any, differs in degree but not in kind from that of the general public, and his legal status falls within the category of damnum absque injuria. ’ ’

Our Supreme Court recognized that divergent views have been expressed relative to the right of a nonabutting property owner to compensation and damages. The court, on page 145, said:

“We are fully aware that the rule adhered to by this court in this case may be harsh under certain circumstances, but any other rule would breed untold confusion. If one nonabutter on a street that had been closed at one end could maintain an action for damages, then every other nonabutter would have the same right; and the rule of damages would'be of such a speculative nature as to open a wide avenue for imposition.
“The time has come when Ohio must adopt one of the two rules. There is no middle ground. Either each and every nonabutter upon a vacated street must be given a right of action for damages, or such right must be denied all nonabutters. The term ‘nonabutter’ as used herein is used in the sense that the property in question does not abut upon that part of the street that is vacated.”

The court in the Bucsi ease reviewed many Ohio cases and we do not deem it necessary to review them here. The case of Schimmelmann v. Lake Shore & M. S. Ry. Co., 83 Ohio St., 356, 94 N. E., 840, 36 L. R. A. (N. S.), 1164, relied on by Lampe, is distinguishable on the facts.

In the case at bar, a corner of Lampe’s property touches the corner of the vacated portion of James road. In our opinion this fact does not -make Lampe an abutter. In Albes v. Southern Rd. Co., 164 Ala., 356, it was held:

“Where only the corner of property touched the corner of a street to be closed and no part of said street was immediately opposite the property, such property was' not abutting property so as to entitle the owner to damages for .closing it, even if it be conceded that an abutting owner is entitled to compensation for vacating a street.”

While it is pointed out that courts of other states have adopted a more liberal rule, we are constrained to follow and apply the principle of law laid down by our Supreme Court in the Bucsi case.

It is urged by Lampe that since the state is now embarking on a new type of highway development which requires the construction of viaducts and cloverleaf intersections which affect property owners over a wide area, and that in such development there is a possibility of pieces of property being completely surrounded by the improvement and yet not considered as abutting property under the present interpretation of the statute, a new and a more liberal construction should be given to our statute. This suggestion lies in the field of legislative policy and not with the courts.

We conclude that Lampe was not an abutting owner within the meaning of Section 1182-12, General Code. Since Lampe was not ah abutting owner, she was not entitled to be served with a notice as provided by Section 1182-12. In our opinion, under the ruling in the Bucsi case, Lampe is not entitled to compensation and damages.

As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Matthews, J.

text:
    Lungard et al., d. b. a. Aerovant Fan Co., Appellees, v. Bertram et al., Appellants.
    (No. 7065
    — Decided March 21, 1949.)

      Mr. Philip J. Kennedy, for appellees.

      Mr. Robert O. Smith, for appellants.
   Matthews, J.

In the petition, the plaintiffs, appellees herein, alleged that “an account was stated between the plaintiffs and the defendants and the sum of one thousand, four hundred, seventy and twenty-six hundredths ($1,470.26) dollars was found to be due to the plaintiffs from the defendants as of June 23rd, 1947.” The prayer was for judgment for that sum plus interest.

There were two defendants and they filed separate answers, denying the above-quoted allegations of the petition. An amended answer was filed later by the defendant, Harvey P. Bertram Company, Inc., to which was attached certain interrogatories directed to the plaintiffs. Thereafter, on motion of the plaintiffs, the defendant, Harvey P. Bertram Company, Inc., was dismissed as a party defendant. Thereupon, the other defendant, Harvey P. Bertram, filed a motion to dismiss the action on the ground that as one defendant had been dismissed, the action itself should be dismissed. The court overruled this motion.

On December 1, 1949, the action came on for trial upon the pleadings “and the evidence, the intervention of a jury being waived, was submitted to the court,” and on the issues joined the court found in favor of the plaintiffs against Harvey P. Bertram for $1,536.41. Two days thereafter, the court entered judgment on that finding. Notice of appeal was filed by Harvey P. Bertram from that judgment.

Notwithstanding the recital in the journal entry that evidence was heard, no bill of exceptions was filed to bring such evidence upon the record. This court, therefore, must assume that the evidence referred to in the journal was in all respects sufficient to sustain all the essential allegations of the petition.

The claim of the appellant is that the allegations of the petition hereinbefore quoted show a joint liability, and that the voluntary dismissal of one defendant rendered the petition fatally defective against the remaining defendant.

It is our opinion that the appellant’s claims are unfounded. In the first place, there is no express allegation in the petition that the promise sued upon was joint. The dismissal of Harvey P. Bertram Company, Inc., from the action would seem to require that the allegations of the petition be construed as applicable to the sole remaining defendant. It is not alleged that the account stated was made with certain specifically named persons. The allegation is that it was made with “defendants.” The dismissal of one defendant would seem to require that the language be construed to charge that the account stated was made with the sole remaining defendant. Section 10213, General Code, provides that, in the interpretation of the various procedural enactments in “Part Third: Remedial” of the General Code, “words in the plural include the singular, and in the singular include the plural number.” It would seem that pleadings prepared to invoke the remedies provided for in that part of the General Code should have an equally liberal interpretation.

Assuming, however, that the petition avers an account stated with the two original defendants jointly, the only effect of the dismissal of one would be to produce a defect of parties. A motion to dismiss is not the method provided for taking advantage of such defect. Section 11309, General Code, provides that if such defect appears upon the face of the petition it is ground for demurrer. If it does not appear upon the face of the petition, the defect should be attacked by answer, and if the defect is not objected to in either way, it is waived. Section 11311, General Code.

We are fully conscious that the name given to a pleading or motion is not controlling. It is the substance and not the caption that determines the operative effect of a pleading or motion under the Code. A motion, so called, may be treated as a demurrer. The impossibility of applying that rule here is that the appellant sought by his motion to accomplish a result not attainable by a demurrer. The sustaining of a demurrer on the ground that there is a defect of parties (or for that matter on any other ground) does not produce a dismissal of the action. Such sustaining is no more than a finding by the court that the petition is legally insufficient as it stands. The case remains pending and the plaintiff may amend his petition so as to cure the defect. Section 11360 et seq., General Code. The only limitation on the right to amend is that the cause of action shall not be changed. The cause of action stated in this petition is the failure to perform the obligation created by the account stated. Omitting or dismissing one alleged obligor does not change the cause of action against the remaining obligor for his failure to perform the obligation alleged against him. 31 Ohio Jurisprudence, 944, Section 339; McLaughlin v. Barnes, 18 C. C., 623, 8 C. D., 499; and Goldberg v. Jordan, 130 Ohio St., 1, 196 N. E., 775.

Our conclusion is that the court did not err- in overruling the motion to dismiss. As there is no bill of exceptions, the question as to the sufficiency of the evidence introduced at the trial to support the judgment is not presented.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


text:
    The State of Ohio, Appellee, v. Liff, Appellant.
    (No. 1971
    — Decided December 10, 1948.)

      Mr. Hugh 8. Jenkins, attorney general, Mr. Frederick L. Drum and Mr. Robert E. Rail, for appellee.

      Messrs. Froug <& Froug, for appellant.
   By the Court.

This is an appeal on questions of law from the Common Pleas Court of Montgomery county, which entered a judgment on a verdict returned in favor of the plaintiff-appellee in the amount of $227.21 as compensation for injuries sustained by Christine Schmitz on May 13, 1942, while employed as a waitress in a cafe owned and operated by defendant-appellant, J. Abe Liff.

The defendant not being a contributor to the state insurance fund, this action was instituted in the name of the state under the provisions of Section 1465-74, General Code, after an award in favor of the claimant had been made by the Industrial Commission of Ohio.

The defendant assigns as error that the verdict and judgment are against the manifest weight of the evidence ; that the court erred in refusing to direct a verdict for the defendant; and that evidence prejudicial to the defendant was admitted-over objection.

The defendant contends that the injury was not sustained in the course of employment. The Industrial Commission on a rehearing found that the injury was sustained in the course of employment. Such-finding is prima facie evidence of the truth of such fact. Section 1465-74, General Code. Unless overcome by sufficient evidence such a finding of the commission will support a verdict for the state.

The defendant introduced into evidence the original application, in which the claimant stated that the injury was sustained when a patron struck at her and grabbed her causing her to lose balance and fall to the floor causing her to receive a sprained ankle and twisted hip and knee, and the first order of the commission denying an award on the ground that the injury was not sustained in the course of or did not arise out of her employment. On a rehearing before the commission, and upon trial of the case in the Common Pleas-Court, the claimant testified that the altercation between her and the patron had ended and that as she turned to perform her duties as a waitress she slipped. on the floor which was wet. The claimant was thoroughly cross-examined regarding the altercation which had taken place immediately before the injury. On this issue, which was the principal issue in the case, the evidence was in conflict. The evidence presented a proper case for submission to the jury. The jury resolved this issue against the defendant. We cannot say that the verdict and judgment were against the manifest weight of the evidence.

On cross-examination, a witness for the defendant was required over objection to answer whether he had ever been convicted of a crime. This evidence was admissible to test his credibility. Over objection the witness was required to answer how often he had been convicted of a crime. Cross-examination not relevant to the issue rests in the sound discretion of the court, and a judgment will not be reversed on that ground unless it appears from the record that such discretion has been abused to the prejudice of the party complaining. 42 Ohio Jurisprudence, 335, Section 333; Kornreich v. Industrial Fire Ins. Co., 132 Ohio St., 78, 5 N. E. (2d), 153; Smith v. State, 125 Ohio St., 137, 180 N. E., 695; Keveney v. State, 109 Ohio St., 64, 141 N. E., 845; Hanoff v. State, 37 Ohio St., 178, 41 Am. Rep., 496; Wroe v. State, 20 Ohio St., 460. In our opinion the court did not abuse its discretion and prejudicial error was not committed.

As we .find no error in the record, the judgment is affirmed.

Judgment affirmed.

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


text:
    The Liberty Folder Co., Appellee, v. Anderson et al., Appellants.
    (Nos. 145 and 146
    — Decided August 5, 1949.)

      Messrs. Pickrel, Schaeffer & Ebeling and Messrs. Cummins & Boiler, for appellee.

      Mr. Rodney R. Blake, Mr. Sidney Q. Kusworm, Sr., Messrs. Myers & Myers and Mr. Robert D. Touvelle, ■for appellants.
   Miller, P. J.

The amended petition in this case alleges that the defendant C. R. Anderson, while an officer and director of the plaintiff corporation, embezzled various sums of money in the aggregate of over $300,000; and that with such embezzled funds the defendant purchased several farms in Shelby county, Ohio, which he now claims to own. An accounting of the embezzled funds is sought and that the farms so purchased with these funds be declared to be held in trust for the plaintiff. The petition further prays that any inchoate dower interest claimed by the defendant, Mary J. Anderson, the wife of C. R. Anderson, be barred as to such lands so purchased with embezzled funds. Both defendants have answered denying the allegations contained in the petition, and Mary J. Anderson has filed a cross-petition in which she asks that her inchoate dower interest in the lands be protected and preserved.

Upon application and good cause being shown, the Court of Common Pleas appointed receivers for all the property of the defendant, C. R. Anderson. The report of the receivers showed that the management of the farms was most unprofitable, the books of Anderson showing that he had lost in excess of $10,000 per year for the last five years. The record discloses further that the United States of America filed a tax lien and an intervening petition claiming the sum of $360,000 by reason of false and fraudulent income tax returns alleged to have been made by the defendant C. R. Anderson. The claims of other creditors, also filed with the receiver, made a grand total of over one million dollars in the event all claims were allowed and paid. It therefore became apparent to the receivers that the estate of C. R. Anderson was insolvent. In view of these circumstances the receivers filed their application to sell three of the farms, which the court allowed, and ordered the sale to be made free and clear of all claims, but with the reservation that in addition to other enumerated claims the inchoate dower interest of Mrs. Anderson should be transferred to the funds derived from the sale pending the later judicial determination by the court of the various interests of the parties. It is from this order that these appeals are being taken. The appellant, Mary J. Anderson, is objecting to the sale under the above conditions, but is asking that her dower interest in the farms be set off to her in kind. The question, therefore, presented is: When does the inchoate dower interest, if any, become vested in the wife? On January 1, 1932, Section 10502-1, General Code, was enacted, which superseded former Section 8606 which made provision for dower to a widow or widower. The repeal of that section and the enactment of Section 10502-1 (114 Ohio Laws, 337), virtually abolished all vested dower except in such real estate, (a) conveyed during coverture without the spouse joining in the deed, and (b) to the extent that such real property during coverture was encumbered by mortgage without the spouse joining in the mortgage, or by judgment lien or otherwise without the surviving spouse having relinquished or been barred of dower. To these exceptions another one was added by amendment effective September 2, 1935 (116 Ohio Laws, 387). This exception referred to “real property * * * aliened during the marriage by judicial or other involuntary sale, the surviving spouse not having relinquished or been barred of dower therein.” Section 10502-1, General Code, now provides:

“A spouse who has not relinquished or been barred of it shall be endowed of an estate for life in one-third of all the real property of which the consort was seized as an estate of inheritance at any time during the marriage, but all such dower interest shall terminate and be barred upon the death of the consort except:
“(a) To the extent that any such real property at any time during the marriage was conveyed by the deceased consort, the surviving spouse not having relinquished or been barred of dower therein; and
“(b) To the extent that any such real property at any time during the marriage was encumbered by the the deceased consort by mortgage, judgment, lien (except tax lien), or otherwise, or aliened during the marriage by judicial or other involuntary sale, the surviving spouse not having relinquished or been barred of dower therein. In the event any of the real property of which the deceased consort was seized as an estate of inheritance at decease was so encumbered, or so aliened prior to decease, the dower interest of the surviving spouse therein shall be computed on the basis of the amount of the encumbrance at the time of the death of such consort or such alienation, as the case may be, but not upon an amount exceeding the sale price of such property in any event.
“In lieu of such dower interest as terminates and is barred pursuant to the provisions of this section, a surviving spouse shall be entitled to the distributive share provided by the statute of descent and distribution.
“All dower interest shall terminate and be barred upon the granting of an absolute divorce in favor of or against such spouse by a court of competent jurisdiction within or without this state.
“Wherever dower is referred to in any other section of this act [Sections 10500-1 to 10512-25, General Code], it shall mean the dower to which a spouse is or may be entitled by the provisions of this section.”

This section abolished all dower rights except those falling under the exceptions noted. These rights, we think, were retained subject to the same interpretation as under Section 8606, General Code. The last sentence in the above section (b) defines the dower interest of the consort. It will be noted that only the interest of the surviving spouse is defined. This must clearly indicate that the interest vests only after the death of the consort. The same rule was applicable under the common law and under all statutes previously enacted in this state.

In McArthur v. Franklin, 16 Ohio St., 193, it was held that the right of dower did not accrue to the wife in any form until the death of the husband. See, also, 14 Ohio Jurisprudence, 673, Section 61. We are of the opinion that Mary J. Anderson at this time has no vested right of doAver in the land under consideration and therefore cannot claim the land in payment of an expected right. Just what her interest in this land is we are not required to pass upon and can not, for it has not been determined whether the land is being held in trust for the plaintiff by the defendant, C. R. Anderson. If it is declared to be trust property, it is apparent that the wife can have no dower interest therein. The alleged dower interest being a mere chose in action and all the necessary parties being in court, the court had the right under general equitable powers to decree the sale of the land providing it properly protects the appellant’s interest in the proceeds thereof. The appellants have cited numerous Ohio eases where lands have been set off by metes and bounds representing the dower interest of the widow, but we have been cited no cases where this has been allowed prior to the death of the consort.

In Dick v. Bauman, 73 Ohio App., 107, at page 109, 55 N. E. (2d), 137, it is said:

“While the Probate Code Act of 1932 enlarged the share of a surviving spouse in the real estate of the one predeceased in lieu of the former dower, it placed no new restraints upon the rights of one in life to dispose of his or her property, and only preserved to the survivor a vested dower estate in any lands conveyed during the marriage in which such survivor had not relinquished or been barred of dower.” (Emphasis ours.)

We are in accord with the ruling of the trial court and the judgment is affirmed.

Judgment ajfirmed.

Hornbbck and Wiseman, JJ., concur. ;


author: Wiseman, P. J. By the Court.

text:
    In re Burson.
    (No. 4181
    — Decided November 29, 1948.)

      Mr. Wayne 8. Gerber, for petitioner.

      Mr. Hugh 8. Jenkins, attorney general, Mr. Milan E. Erase and Mr. Robert Tatgenhorst, for respondent.
   Wiseman, P. J.

This is an action originating in this court, in which the petitioner seeks by a proceeding in habeas corpus to secure his release from the Ohio State Penitentiary. The petitioner was indicted as a second offender on three counts for stealing and for operating motor vehicles without the consent of the owners. A plea of guilty being entered, the accused was sentenced to imprisonment in the Ohio State Penitentiary on August 20, 1943.

Petitioner claims the court violated a fundamental right to have counsel appointed to represent him as provided by Section 13439-2, General Code, and that he was entitled to be advised of the nature and seriousness of the charge, and as to his constitutional right to trial by jury before being arraigned, and before being required to enter a plea.

The record shows that petitioner was not represented by counsel. Petitioner did not request the court to appoint counsel; neither does the record in the trial court affirmatively show that the accused was indigent and unable to employ counsel. The record in the office of the clerk of courts shows the following:

“Arraigned, reading of indictment waived, plea of guilty. August 20, 1943.”

It is alleged that petitioner was ignorant and did not understand the nature of the charge and his right to a jury trial. We are asked to consider the uncorroborated statement of the petitioner in support of his contention. This court must determine how much weight is to be given the testimony of the petitioner. We do not find this allegation to be supported by the facts. The petitioner was not unfamiliar with the procedure in criminal cases. Once before he was charged with a similar offense and sentenced to a term in the Ohio State Reformatory.

When collaterally attacked the judgment of the court carries with it a presumption of the regularity of the proceedings. Johnson v. Zerbst, Warden, 304 U. S., 458, 468, 82 L. Ed., 1461, 58 S. Ct., 1019. Thus, we conclude from the record that the petitioner waived the reading of the indictment and that every legal right in this regard was accorded the petitioner in the absence of proof to the contrary.

Authorities have been cited in support of the proposition that the failure to appoint counsel justifies a reversal on an appeal or in error proceedings. These authorities have no application to the question presented. In the instant case, a collateral attack is made against the judgment and conviction of the petitioner. Admitting, without deciding, that the record discloses an irregularity in the proceedings, such irregularity does not go to the jurisdiction of the court. Habeas corpus does not lie unless the judgment of conviction is void. Clearly the Common Pleas Court of Franklin County, Ohio, had jurisdiction in the matter. The court having jurisdiction, habeas corpus does not lie. Section 12165, General Code; Ex parte Elicker, 117 Ohio St., 500, 159 N. E., 478; Yutze v. Copelan, Chief of Police, 109 Ohio St., 171, 142 N. E., 33, 32 A. L. R., 1048; State, ex rel. Conners, v. DeMuth, Supt., 96 Ohio St., 519, 528, 118 N. E., 98; State, ex rel. Faber, Recr., v. Jones et al., Judges, 95 Ohio St., 357, 116 N. E., 456; In re Allen, 91 Ohio St., 315, 110 N. E., 535; Ex parte Van Hagan, 25 Ohio St., 426, 432; Wright v. Brady, Warden, 129 F. (2d), 109; Ex parte Faber, 56 Okla. Cr., 177, 35 P. (2d), 741.

Counsel for the petitioner has cited the case of Johnson v. Zerbst, supra, in support of his contention that the judgment of conviction was void. The proceeding in that case arose in the federal court and the Supreme Court of the United States was required to decide the issue under the Sixth Amendment to the Constitution of the United States which applies only to trials in the federal courts. That ease is distinguishable on the facts from the instant case. In the case of Johnson v. Zerbst the accused pleaded not guilty. Two days after being indicted the accused was taken before the court, arraigned, tried, convicted and sentenced. The record further shows that the accused stated to the court that he had no lawyer but was tried, convicted and sentenced without the assistance of counsel.

It is- admitted that if the act of the court amounted to a denial of “due process” the judgment and sentence of the court would be void and habeas corpus would lie. “Due process” is not denied in every case when the court fails to appoint counsel to represent an indigent defendant. To constitute a denial of “due process” the record must show a state of facts which is offensive to our concept of “due process” as guaranteed by the Fourteenth Amendment to the United States Constitution. Betts v. Brady, Warden, 316 U. S., 455, 86 L. Ed., 1595, 62 S. Ct., 1252. Under the facts presented in the instant case, the failure of the court to appoint counsel did not amount to a denial of “due process.”

To avoid unnecessary litigation the trial courts would do well to appoint counsel before arraignment, and where counsel is not appointed, to show by court entry in detail the action taken and the reason therefor.

Petitioner remanded to custody.

Miller and Hornbeck, JJ., concur.

(Decided January 26, 1949.)

On Application for separate finding of facts and conclusions of law.

By the Court. This cause is before the court on request of petitioner for a separate finding of facts and conclusions of law — two motions of petitioner and two motions of the respondent directed toward the granting or denying of the request for a separate finding.

The court announced its opinion November 29, 1948. On December 3, 1948, the petitioner filed a request for a separate finding. Rule IX, as it then existed, provided :

‘ ‘ The party requesting a finding of facts shall, within five days after the opinion is announced, unless further time be given by the court, prepare the finding of facts and submit the same to the opposite counsel, and within five days after its receipt by him the same shall be submitted to the court, together with his objections thereto, if any, and suggestions, in writing.”

The record shows a failure to comply with this rule since the separate finding was not submitted to opposite counsel until December 29, 1948, on which date the same was filed with the clerk of this court without the approval or signature of the court. Rule IX, as it then existed, further provided that, ‘‘for want of a strict compliance with this rule, unless good cause be shown to the contrary, the clerk shall enter a general finding instead of a finding of facts. ’ ’

The request for a separate finding will be denied.

Request overruled.

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

(Decided January 26, 1949.)

On Application for rehearing.

By the Court.

In support of the contention that the failure to appoint counsel renders the judgment and conviction void, applicant cites the following cases: Williams v. Kaiser, Warden, 323 U. S., 471, 89 L. Ed., 398, 65 S. Ct., 363; Townsend v. Burke, Warden, 334 U. S., 736, 92 L. Ed., 1690, 68 S. Ct., 1252; Wade v. Mayo, Custodian, 334 U. S., 672, 92 L. Ed., 1647, 68 S. Ct., 1270; Uveges v. Commonwealth of Pennsylvania, 335 U. S., 437, 93 L. Ed.,-, 69 S. Ct., 184.

These cases are distinguishable from the instant case on the facts. The Williams case involved a capital offense. The defendant requested the court to appoint counsel which was denied. The court on the whole record found that the defendant was unable to make a proper defense. In the Townsend case, the court found that the trial court was given wrong information relative to prior offenses which, when aggravated by circumstances showing that it resulted in the prisoner being actually taken advantage of, or prejudiced, and in the absence of counsel, resulted in a denial of due process. In the Wade case, an eighteen-year-old youth was charged with a capital offense. He pleaded not guilty and requested the court to appoint counsel. The court refused to appoint counsel and forced the prisoner to trial which resulted in a conviction. The court found that the youth was incapable of adequately representing himself in the trial. The Uveges case is, also, distinguishable on the facts.

In the Townsend case, the court held that the due process clause of the Fourteenth Amendment to the United States Constitution does not prohibit the state from accepting a plea of guilty in a noncapital case from an uncounseled defendant.

In Bute v. Illinois, 333 U. S., 640, 92 L. Ed., 986, 68 S. Ct., 763, the court held that in a noncapital case failure to appoint counsel does not always result in a denial of due process. The court held that in the absence of any showing which would require it, the due process clause of the Fourteenth Amendment did not require the trial court to initiate an inquiry or the offer or assignment of counsel. In that case, as in the instant case, the court held that there was nothing in the record to show that the petitioner, at the time of trial, either desired counsel or was unable to procure counsel.

The severity of the punishment, if within statutory limits, cannot be successfully urged in support of the claim that defendant was taken advantage of or was prejudiced by failure to appoint counsel. Townsend v. Burke, supra.

Because of the view we take of this case, and the proposition of law applied, we do not deem it necessary to decide whether in the instant case the trial court was or was not under a legal duty to make inquiry of the defendant to determine his indigency or advise the defendant that he was entitled to counsel. On the record presented, it is sufficient for this court to hold the failure to appoint counsel did not constitute a denial of due process.

Application for rehearing denied.

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


author: Hurd, J.

text:
    In re Berman. In re Krause.
    (Nos. 21482 and 21484
    — Decided April 16, 1949.)

      Messrs. Land é Land, Mr. W. J. Martindale and Miss Elsie Tarcai, for petitioners.

      Mr. Frank T. Gullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for respondent.
   Hurd, J.

These are original actions in habeas corpus filed in this court. The petitioners represent that they are being restrained of their liberty by the sheriff of Cuyahoga county, Ohio, at the jail of such county; and that such restraint and imprisonment is contrary to law and without due process.

In substance, the affidavits supporting the applications for the writs set forth that the parties were taken into custody by the sheriff at approximately two p. m. on April 14,1949; that they were arrested under a writ of body attachment issued to the sheriff by a judge of the Court of Common Pleas; that, thereafter, applications were made to the Court of Common Pleas to allow and fix bail pending the appearance of the parties for trial; that they were advised by the court that their “arrest would be treated the same as the others”; “that the treatment accorded in the other arrests was a failure to grant or deny bail”; that thereupon they requested an immediate or forthwith hearing on the merits of the charges; and that they were advised by the court that it was not possible to accord such hearing before April 19, 1949, of the following week.

In the case of In re Berman, No. 21482 (second arrest), application for a writ of habeas corpus was first filed within approximately two hours after the arrest of the petitioner. Upon hearing at that time (Thursday, April 14, 1949), there was not a sufficient showing that the petitioner would not be allowed bail or granted a hearing forthwith, and, therefore the application at that time was denied. However, upon application for a rehearing two days later, to wit, on April 16,1949, the evidence disclosed that the petitioner was still confined in jail without bail and without prospect of trial until Tuesday of the following week, it appearing further that the trial court had refused to fix bond on application therefor. Thereupon this court vacated the journal entry refusing the writ and granted a rehearing upon the original application which had been filed on April 14, 1949.

Upon hearing in In re Krause and In re Berman on April 16, 1949, the evidence clearly showed that the allegations contained in the affidavits filed in support of the petitioners were true; and that both petitioners had been held in close custody in the county jail continuously from two or two-thirty p. m. of April 14, 1949. It appeared further that the petitioners had been arrested upon body attachments issued sua sponte by the trial court, based upon citations for contempt of court on account of certain letters addressed to the trial court in relation to the case of Fawick Airflex, Inc., v. United Electrical, Radio & Machine Workers of America Local No. 735, affiliated with the' Congress of Industrial Organizations, District No. 7, the case having had its genesis in a labor dispute or strike in progress at the plant of the plaintiff in such case.

We are not here dealing with the question of the guilt or innocence of the accused. That is for the trial court to determine upon trial on the issues made in the pleadings before that court. We are here dealing with basic fundamental constitutional rights. The sole question before this court for determination on these hearings in habeas corpus is, Do the accused have a right to bail pending trial?

Section 9, Article I of the Constitution of Ohio, provides :

“All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great. Excessive bail shall not be required; nor excessive fines imposed * *

A capital offense is one punishable by death. Where the proof is evident, or the presumption great, persons accused of such an offense are not entitled to bail. Persons accused of all other crimes shall be bailable. This provision of the Constitution applies to charges for contempt of court as well as to other offenses against the peace and dignity of the state.

The dignity of our courts must be maintained and the judicial process must be respected at all times and by all persons. A strong and independent judiciary is the bulwark of our liberties. But, no matter how much a court, or a judge thereof, may feel aggrieved by the conduct of persons suspected of or charged with contempt of court, such an offense is not a capital offense and is bailable under the state and federal constitutions. To deny bail before trial, except in capital offenses, is a violation of a sacred basic human right guaranteed by the Constitution of the United States and the Constitution of Ohio. This constitutional right transcends all other considerations of whatever kind or nature.

Section 9, Article I, of the federal Constitution and Section 8, Article I of the Ohio Constitution, provide that the privilege of the writ of habeas corpus shall not be suspended, unless, in cases of rebellion or invasion, tbe public safety requires it. Section 6, Article IV of the Obio Constitution, provides tbat tbe Court of Appeals shall bave original jurisdiction in habeas corpus. Therefore, there can be no doubt of tbe jurisdiction of this court to bear and grant relief in a case such as this, where tbe evidence clearly shows tbat tbe trial court has refused to allow bail or to grant a trial forthwith.

Tbe Supreme Court of Obio approved this procedure and defined tbe constitutional right in tbe case of State v. Bevacqua, 147 Ohio St., 20, 67 N. E. (2d), 786. Tbe pertinent part of tbe syllabus is as follows:

“* s * but tbe constitutional right of nonexcessive bail in bailable offenses may be fully protected by suing out a writ of habeas corpus in a court of competent jurisdiction. ’ ’

In tbe opinion, tbe court said:

“Persons charged with crime bave a constitutional right to bail except in ‘capital offenses where tbe proof is evident or the presumption great.’ Section 9, Article I, Constitution of Ohio. That section further provides tbat ‘excessive bail shall not be required.’ Keeping an accused in jail by excessive bail is as much a denial of his constitutional rights as refusing to fix bail.
“To fully protect tbe rights of a person charged with a bailable offense, it is necessary to give him immediate relief against an order refusing to reduce excessive bail, so tbat be may not languish in jail. * * *
“There is a remedy, however, tbat is prompt and effectual. Tbe accused may, upon refusal of a court to reduce tbe bail fixed, sue out a writ of habeas corpus in a court of competent jurisdiction where bail may immediately be given pending hearing * * *. Upon this question tbe authorities are practically unanimous. The rationale of the doctrine is well set forth in the cases of Jones v. State, 146 Miss., 819, 112 So., 170, and In re Stegman, 112 N. J. Eq., 72, 163 A., 422.” (Emphasis supplied.)

Section 12139, General Code, dealing with contempt of court, provides in part:

“Upon the return of a writ, tvhen it is not convenient to hear the charge without delay, the court shall fix the amount of a bond to be given, with surety to the satisfaction of the clerk, for the appearance of the accused to answer the charge.” (Emphasis supplied.)

The members of this court are unanimously of the opinion that the mailing of a letter, the writing thereof not being done in the presence of the court, comes within the purview of the foregoing section of the General Code, and that, therefore, upon return of the writ, when it was not convenient to hear the parties without delay, it was mandatory upon the trial court to fix the amount of the bond for the' appearance of the accused at the time set for trial. The bond in such case is definitely not for purposes of punishment but rather to insure the appearance of the accused for trial at the time set.

Upon the hearing, some argument was advanced that these cases should be governed by Section 12136, General Code, which reads as follows:

“A court, or judge at chambers, summarily may punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”

As before stated, we are of the opinion that the instant cases do not come within the purview of the foregoing section. However, it is our further view that, if these actions should be governed by such section, it would be the duty of the court none the less to fix bail if it did not proceed summarily to punish the person found guilty. Failure of the court to punish summarily would not justify the commitment of the accused for trial at some later date, without fixing bond for appearance. The constitutional guaranties must still prevail.

Courts are not vested with powers of arbitrary conduct. There are, however, cases in which a judge may exercise that power which is known as judicial discretion. This power of judicial discretion, however, does not give the right to a judge to refuse the guaranties of the Constitution to persons who appear as litigants before him. These constitutional rights extend to all persons regardless of their political, business, religious or social affiliations.

The provisions contained in the bill of rights of the federal and Ohio constitutions, respectively, defining the fundamental rights of all persons to equality of justice, freedom of religion, speech, press and assembly, privacy of the home, trial by jury in criminal cases and bail before trial (except in capital cases), and the guaranties against cruel and unusual punishment and excessive bail, are self-executing and require no legislative or statutory authority to support or implement them.

In the instant cases the evidence is clear that there has been neither trial, summary punishment or bail. Therefore, it is our opinion that until such time as trial is had, the accused are clearly entitled to reasonable bail as guaranteed by the federal and state constitutions.

As we hold these views, the petitioners are discharged from custody forthwith, conditioned upon the petitioners giving bond with sureties to the satisfaction of the clerk of court in the sum of $500 each for the appearance of the accused to answer the charges against them.

Judgments accordingly.

Doyle and Hunsicker, JJ., concur in the judgment and opinion.

Doyle and Hunsicker, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.

      Other cases coming before this court, and growing out of the same case, in which applications for writs of habeas corpus were allowed, when the trial judge refused or failed to set bail on apapplieation or grant trial forthwith, are as follows: April 13, 1949, No. 21476, In re Kress; No. 21477, In re Kreitner; No. 21478, In re Evans; No. 21479, In re Berman (first arrest, writs allowed by Skeel, J., acting presiding judge, Hurd, J., and Guernsey, J., of the Third Appellate District, sitting by designation in the Eighth Appellate District); April 14, 1949, No. 12480, In re Barnett; No. 21481. In re McCurdy (Skeel, J., acting presiding judge, and Hurd, J., writs allowed).