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

      (No. 22511
    Decided July 7, 1952.)

      Mr. Frank T. Cullitan, prosecuting attorney, Mr. John J. Mahon and Miss Gertrude M. Bauer, for appellee.

      Mr. Wallace J. Baker and Mr. Lester J. Farber, for appellant.
   Doyle, J.

On December 8, 1951, in the early afternoon, George F. Ross, in Cuyahoga county, Ohio, shot Forney Haas, and killed him without justification or excuse.

The victim of the assassin’s bullets was a police officer of the city of Cleveland, who, while patrolling on duty in a police car and in full uniform, had his suspicions aroused by the defendant, who operated a large Lincoln automobile without a hood covering the motor, and which carried a California license plate. The suspect drove from Euclid avenue on to Adelbert road in the vicinity of Western Reserve Uni versity, and the officer there stopped him. In the course of the customary questioning, he was asked to produce his driver’s license and identification material. In response, he said that his billfold containing his license had been stolen from his room, but that he had other identification papers there which he could show.

Thereupon the officer ordered him to drive to his rooming house, and the policeman followed in the police car. After parking their respective cars in the rear of the rooming house, the defendant proceeded into the house through the front door, and the policeman walked behind. The officer, observing the landlady in the hallway, asked her if his temporary companion had reported a billfold stolen from his room. She replied in the negative. They then proceeded up a stairway leading to the second floor. The policeman followed several steps behind the roomer. As the defendant reached the landing of the floor above, he turned, drew a concealed revolver, and fired it into the body of the deceased.

The landlady related in the trial that: she heard a shot and a body fall; she then saw a human form lying about two-thirds of the way up the stairs; she ran to the telephone to call for help; and in the meantime two more shots were fired.

The defendant, in relating the tragedy from the witness chair at the trial, spoke of his fear of arrest, and the consequential exposure of a series of violations of a parole awarded him from a California prison. He also feared the officer’s discovery of a quantity of stolen property in his room, which was the accumulation of burglaries committed by him. He likewise knew that he had no driver’s license, no Hcense for the stolen Lincoln automobile, nor papers of identification which he had promised.

“Q. And when you reached the top step on the second floor you turned; the officer was right behind you; he was facing you then, wasn’t he? A. He was.

Q. * * * And you had in your mind, then, that you were going to escape, didn’t you? A. Yes.

“Q. When you turned you pulled out a gun and pointed it at the officer, didn’t you? A. I did.

“Q. And you fired a shot, didn’t you? A. I did.”

The witness continued with the statement that, before he fired the shot, he told the officer to “raise his hands.” The officer responded with the statement, “I thought so,” and reached for his revolver.

“Q. What did you do then? A. I fired a shot — a warning shot to the side of him. * * *

“Q. And what happened after that? A. Then I told him again to raise his hands.

“Q. And what did he do or say? A. He continued to bring the gun to bear on me.

“Q. Yes. And then what happened? A. That, I don’t know.

“Q. What is the next thing that you do know? A. I knew that I was running down the stairs and he was in a crouching position with the gun in his hand, and as I ran by him I grabbed the gun out of his hand.”

Continuing, the witness said that he saw his landlady at the telephone and he ordered her away. He then proceeded on his flight from the scene of his killing. He testified that, after he fled from the house, he examined his gun “to see actually how many shots had been fired” and “found that three bullets had been fired. ’ ’

The fact was established that at least two bullets entered the body of the deceased — one in the left parietal region of the head and another through the left forearm and the left side of the abdomen. It is possible that the latter two wounds were caused by the same bullet. Be that as it may, death shortly followed.

On January 5, 1952, the defendant was indicted on two counts for murder in the first degree. The first count charged that he “unlawfully, purposely and of deliberate and premeditated malice killed Forney Haas.” Section 12400, General Code. The second count charged that he “unlawfully, purposely and wilfully killed Forney Haas, a duly appointed, qualified and acting policeman of the city of Cleveland, Cuyahoga county, Ohio, while said Forney Haas was in the discharge of his duties as a policeman.” Section 12402-1, General Code.

On January 7, 1952, the defendant was arraigned, and he pleaded not guilty. On January 14, 1952, at the request of the defense, psychiatrists were appointed to examine into the present sanity of the accused, and on January 24, 1952, upon hearing on the issue of sanity or insanity, he was found to be presently sane. A plea of not guilty by reason of insanity was then entered of record.

On February 4, 1952, upon the issues thus joined, trial was had to a jury, and, at the conclusion thereof, a verdict was rendered finding the defendant guilty ou each of the counts in the indictment of murder in the first degree. A recommendation of mercy was not given. Following the overruling of a motion for a new trial, sentence was duly pronounced and recorded, to death in the electric chair.

It is asserted in the appeal to this court that many errors committed in the trial of the case deprived the accused of a fair trial. We are asked to reverse the judgment and remand the cause for a new trial. We will state some of the errors claimed and will examine and rule upon them all.

It is a substantial right of the defendant to a fair trial. This right is not the abstract question of guilt or innocence. A guilty man is entitled to a trial, free from prejudicial error. We must, therefore, give careful heed to the various claims, without regard to the convincing character of the state’s case.

It is claimed:

“1. The trial court failed and refused to charge properly in connection with the statutes describing the duties of a police officer, to wit, O.G.C. [Ohio General Code] 12402-1 and O.G.C. 4378.”

The theory of the defense is that the police officer, when he received the mortal wounds, was not “in the discharge of his duties,” and therefore a conviction under the second count in the indictment cannot be supported.

Section 12402-1, General Code, so far as pertinent, is as follows:

“Whoever purposely and wilfully kills a * * * policeman * * * while such * * * policeman * * * is in discharge of his duties, is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused person recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.” (Italics ours.)

The argument is made that the officer, in not obeying the laws of the state or the rules of the police department, was not in the discharge of his duties when killed.

Section 4378, General Code, provides in part:

“The police force shall preserve the peace, protect persons and property and obey and enforce all ordinances of council and all criminal laws of the state and the United States. ’ ’

The disobedience of the officer is asserted to be that: 1. When he arrested the defendant without a warrant he failed, “without unnecessary delay,” to “take the person arrested before a court or magistrate having jurisdiction of the offense” and “make or cause to be made before such court or magistrate a complaint stating the offense for which the person was arrested,” contrary to Section 13432-3, General Code; (2) he violated rule 183 of the police department, which is “when persons are taken into custody, they shall be transported to the station by the most direct route; (3) he failed to notify a detective, in violation of rule 225 of the department, which reads, “A detective shall be immediately notified after the arrest of any person for felony or for investigation of a felony.”

Whether the officer arrested the accused as a suspicious person or for a traffic violation will never be definitely known,, unless full credence be given to the statements of the defendant. The officer’s lips have been forever sealed, and he was the only other person to know. It may well be that no arrest was made, and each person voluntarily proceeded to the rooming house. At any rate, it was the duty of the police officer to “preserve the peace,” and, in doing so, his duties permitted and required him to arrest suspicious persons on a charge of suspicion with or without a warrant and to make such reasonable investigation as would be necessary to establish or refute the charge.

The statutes and rules relied upon by the defense are not mandatory in the sense that they must be literally obeyed to the exclusion of all ordinary routine work of a peace officer. The evidence establishes without contradiction that the officer went to the rooming house for no other purpose than to fulfill his duties as a peace officer in the act of preserving the peace by investigation. His duties required him to act promptly to preserve such evidence for or against the person suspected. Delay could have vitally affected the peace of the community through destruction or concealment of material evidence.

We are of the opinion that no reasonable mind conld conclude otherwise than that, whether the officer technically violated the rules relied upon by the defendant or not, nevertheless, he was acting in line of duty as well as in the discharge of his duties when he was killed. It would seem that the statutes and rules are directory, or declaratory of a procedure, rather than mandatory, although a ruling on this question is unnecessary. In construing the legislative meaning of the words “in discharge of his duties,” as used in Section 12402-1, General Code (murder statutes), we are not at liberty to depart from the words employed; but we are bound to ascertain the fair meaning of those words, in view of the sense in which they are used.

In respect to alleged error No. 1, we find the claim untenable. The trial court properly rejected the theory of the defense as reflected in the various requests to charge the jury, and did properly charge the jury on the subject matter in controversy.

“2. Wrongful admission of evidence as to unrelated crimes. ’ ’

The state proved in its case in chief that the defendant, between the time of his arrival in Cleveland on December 3,1951, and December 8,1951, the date of the homicide, had perpetrated two separate burglaries of inhabited dwelling houses in the county of Cuyahoga. In one of the burglaries he made his escape from the burglarized home after drawing a gun on the occupant. Property stolen while perpetrating these crimes was found in his room after the killing of the officer and was admitted in evidence.

Fundamental has been the rule that character is never an issue in a criminal prosecution, unless the defendant chooses to make it one. The, law has set its face against the endeavor to fasten guilt upon an accused person by proof of character or experience predisposing to an act of crime. The state may not prove generally against a defendant crimes not alleged in the indictment, as aiding the proof that he is guilty of the crime alleged in the indictment. See: 12 Ohio Jurisprudence, Criminal Law, Section 321, and cases therein cited. This rule of exclusion, however, is subject to several notable exceptions. Such proof is competent if it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial. These exceptions are stated generally, not with categorical precision, and may not be all-inclusive. This state has also enacted the following statute, which has adopted and extended somewhat the general rules of evidence:

“In any criminal case where the defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another or subsequent crime by the defendant.” Section 13444-19, General Code.

A different question might be here if the possession of the stolen property by the defendant through his burglaries had no bearing upon the motive of the defendant in fleeing from the officer and in shooting him to make his flight effective. It is reasonable to conclude that the defendant was satisfied that, once they entered his room, his previous criminal conduct would be brought to light, and he would be held to answer to the law. It appears that the motive for escape is so definite that it needs no further statement. The fact that the evidence constitutes other distinct crimes does not render the evidence inadmissible. His own conduct established this part of the history of the case, and he cannot be heard to complain. The competency of the evidence once established, the state was entitled to prove the elements constituting the several crimes. Shelton v. State, 106 Ohio St., 243, 140 N. E., 153.

“3. The court erred in admitting evidence in detail of the acts of the defendant in flight. ’ ’

The state proved that the flight of the defendant, after the homicide, took him to Bedford, Ohio, where he stole an automobile. He drove this stolen car to West Virginia, where he burglarized a home. He then abandoned the car stolen in Bedford and stole another one, which he drove to a place in the vicinity of Fairmont, West Virginia. He attempted there to burglarize a store and gasoline station, but his activities sensitized a burglar alarm, which aroused the owners. A shooting affray followed between the owners and the defendant, after which the defendant escaped, and, in so doing, he dropped the revolver which he had taken from the body of his Cleveland victim. He also abandoned the car which he stole in West Virginia. The dropped revolver was later found and identified. The defendant then returned to Fairmont, West Virginia, where he repossessed the Bedford, Ohio, car which he had abandoned, and continued his flight to Ellicot City, Maryland. In the Maryland city he was found sleeping in the car by police. Upon being aroused he again engaged in gun fire. His antagonist on this occasion was the Ellicot City chief of police. Following his escape from this point in his flight, he was, after an intensive manhunt by officials of many kinds, eventually arrested and returned to Cleveland. At the time of the arrest he was armed with a loaded revolver.

This evidence was established by direct testimony, admissions and confessions. It was corroborated In practically its entirety by the testimony of the defendant when he testified on his own behalf in the trial.

The appellant states his claim of error as follows:

“It is axiomatic that evidence of acts committed subsequent to the crime charged is inadmissible unless such evidence aids the jury in determining the guilt of the defendant * * *. Cases cited in the text books indicate that evidence of flight is admissible where the defendant has denied the commission of the offense or has set up an alibi or made some other appropriate defense, but, in this case, neither defendant nor his counsel at any time in the trial denied that he was the party involved in the shooting of the officer. We submit, therefore,-that the evidence of his conduct following December 8, 1951, when the shooting took place, was introduced only for one purpose — that of prejudicing the jury.”

From the foregoing statement, it would seem that the defendant believes that he was being tried only for the shooting of a policeman. Of course, this was not the offense charged by the state. The offense charged in the indictment was the first degree murder of a policeman, and at no time in the trial of the case was there an admission of a murder of this vicious type. The defendant throughout the trial stood firmly on his plea.

“Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. * * *

“It is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt * * 2 Wigmore on Evidence (Third Ed.), Section 276, and cases cited.

“* * * Flight does not raise a presumption of guilt. It is merely a circumstance which the jury may consider in connection with other facts in evidence. It tends to show a consciousness of guilt, or a guilty connection with the crime. * * 12 Ohio Jurisprudence, Criminal Law, Section 313, and cases cited.

The fact that different crimes were committed by the defendant in his flight became an integral part of the history of the case, and became an inseparable part of the flight. It is fair to infer that the separate burglaries and larcenies were perpetrated to secure money or property to finance and accomplish further flight, and to avoid apprehension for the Cleveland killing. They, therefore, became an inseparable part of the whole.

In addition, as heretofore stated, the defendant himself voluntarily undertook to relate from the witness stand the circumstances, concerning the introduction of which, in the state’s case in chief, complaint is now made. The proof offered by the state merely darkened and reddened that which was black enough and red enough when painted by the defendant’s own brush.

In the light of the court’s caution to the jury of the only purpose for which proof of other crimes might be considered, we find no error of a prejudicial nature under this claim.

“4. Wrongful admission of voluntary statement of defendant not relating to crime contained in the indictment. ’ ’

It appears that, after the apprehension of the defendant, he was interrogated by police officers of West Virginia relative to his activities in that state during his flight. He voluntarily made a detailed disclosure of his conduct there, which in general corroborated the testimony of other witnesses.

The competency of this evidence has been hereto fore discussed in this opinion. Further statement on this question need not be here made except to say that the fact that it was cumulative did not render it inadmissible, nor was its admission prejudicial to the defendant’s rights.

“5. The court erred in his charge to the jury on the question of premeditation and deliberation.”

As heretofore stated, the first count in the indict, ment charged that the defendant “unlawfully, purposely and of deliberate and premeditated malice killed Forney Haas.” One of the necessary elements under this count, as distinguished from the second count, was proof beyond a reasonable doubt of deliberation and premeditation; and, of course, it was necessary to a fair trial that the jury be properly instructed on this subject. (Under the second count, proof of deliberation and premeditation was unnecessary for conviction.)

The part of the court’s charge to which complaint is here made is as follows:

“It not only must be purposely or intentionally done, and I am referring to the killing now, it must be with deliberate and premeditated malice. That is really one sentence, but I will speak of deliberation and premeditation first, and then a word on malice. Deliberation and premeditation, in law, means to think before one acts, to consider, to ponder, to do some turning over in the mental process. The law fixes no time within which premeditation and deliberation must be had. It can continue for months or weeks or days or hours, and, on the other hand, it can be the shortest possible period of time, and that time can be a matter of seconds, if the situation is such as to enable a person under the circumstances, whatever they were, in the particular case, to turn over and to plan and to execute in pursuance of the plan a realization of what one is about to do and the consequence of doing is sufficient.”

At the trial the vital question, on the first count in the indictment, was the defendant’s state of mind at the moment of the homicide. Did he shoot with deliberate and premeditated design to kill? When he was first accosted, did he lure the police officer to his rooming house by trick so that he could kill him with his concealed weapon, if it was necessary to accomplish an escape? Did he have this intent and purpose from the beginning, or, although knowing the nature of his act — the shooting — and the reasonable consequences thereof, was he the prey to sudden impulse— the frantic overmastering agitation of the fleeting moment ?

These and like questions the jurors were to ask themselves and answer before measuring the defendant’s guilt under this count in the indictment, the count requiring proof of deliberation and premeditation.

In addition to the part of the court’s charge heretofore quoted, the court properly said, “So, on the first count of this indictment, if you find that George Ross purposely and of premeditated and deliberate malice killed Forney Haas in Cuyahoga county he is guilty of murder in the first degree. If any one of those elements is missing, he is not to be found guilty of murder in the first degree on that count.” (Italics ours.)

The argument is made by the defendant that “While it is correct to charge that deliberation and premeditation are not required to continue longer than a moment, it is error to say that they may occur in a moment.” We are cited to the case of Tolliver v. State, 9 Ohio Law Abs., 488.

It has been the law of this state for more than one hundred years that, if a person has actually formed the purpose to maliciously kill another, and deliberated and premeditated upon it before he performed the act of killing, he is guilty of murder in the first degree, however short the time may have been between the purpose and the execution. It is not the time of deliberation and premeditation that is requisite, but the actual existence of the purpose, malice, deliberation and premeditation, and it matters not how short the time, if the party has actually turned it over in his mind, weighed and deliberated upon it. It makes no difference whether the deliberation was in forming the design maliciously to kill, or, in the continuance of such design after being formed, until the same was executed. Shoemaker v. State, 12 Ohio 43; Patterson’s Criminal Code (3rd Ed.), 588 et seq.

It is not the purpose of this court to marshal support for the jury instructions condemned in Tolliver v. State, supra, and Burns v. State, 3 Dec. Rep., 122, 3 W. L. Gaz., 323. In those cases the instructions advised the jury in what time deliberation and premeditation might take place. This was held to be error. It was not the province of the court to determine this question as a matter of law. On the other nand, if the jury should find as a fact that deliberation and premeditation was proved, then whether it existed for only a moment or longer would be of no particular importance. Early v. State, 16 C. C., 646, 7 C. D., 592.

In the light of the foregoing, did the court meet its responsibility? The court said that “deliberation and premeditation * * * means to think over one’s acts, to consider, to ponder, to do some turning over in the mental process. The law fixes no time within which premeditation and deliberation must be had.” (Italics ours.) Thus far the instructions follow the law of this state. Perhaps the trial judge would have used different language had he been charging a jury composed of professors of psychology, but his use of common, every-day terms adequately conveyed the thought to the jury of laymen.

The court then continued by saying that premeditation and deliberation “can continue for months or weeks or days or hours, and, on the other hand, it can be the shortest possible period of time, and that time can be a matter of seconds.” This statement standing alone might be subject to question; however, it is qualified by and must be read as an integral part of “if the situation is such as to enable a person under the circumstances, whatever they were, in the particular case, to turn over and to plan and to execute in pursuance of the plan a realisation of what one is about to do * * *.” (Italics ours.) The court has not said to the jury that deliberation and premeditation may occur in any specified length of time. On the contrary, it has said in short that, if the deliberation and premeditation has occurred, “it matters not how short the time [or as a matter of fact how long] if the party has actually turned it over in his mind.” Shoemaker v. State, supra, at page 53.

We are of the opinion that the instructions are not tarred with the vice of the complaint and are not prejudicially erroneous.

“6. The trial court arbitrarily removed from the consideration of the jury all evidence as to sanity or insanity of the defendant at the time of the commission of the offense. ’ ’

The defendant, as noted before, created the issue of not guilty by reason of insanity. The trial court in consideration of the evidence did not submit this pleaded defense, and stated to the jury: “And you are, therefore, to proceed in this case to your findings on the assumption that Ross was sane at the time of those incidents, at that place at 8120 Euclid avenue.”

It is the contention of the defense that the mental and emotional qualities of the defendant were of such a level at the time of the crime that he was incapable of deliberation and premeditation — that he had an insane irresistible impulse to escape in any way possible from the police officer.

From the evidence of the psychiatrist for the defense, the jury was told that the defendant had a psychopathic personality, his moral activities were defective, he was emotionally unstable, although at the same time he was sane in the sense that he knew right from wrong. Other witnesses testified to the behavior of the defendant at various times and on various occasions.

By repeated adjudications in this state where the insanity of the accused is set up as a defense, the burden of establishing such defense by a preponderance of the evidence rests upon the defendant. The law presumes every person sane, and in a criminal case this presumption of sanity serves the state as the full equivalent of express proof until such timé as it is made to appear by a preponderance of the evidence that the defendant was insane at the time of committing the crime alleged against him. Loeffner v. State, 10 Ohio St., 598; Bond v. State, 23 Ohio St., 349; Bergin v. State, 31 Ohio St., 111; Kelch v. State, 55 Ohio St., 146, 45 N. E., 6, 39 L. R. A., 737, 60 Am. St., 680; State v. Austin, 71 Ohio St., 317, 73 N. E., 218, 104 Am. St., 778; Long v. State, 109 Ohio St., 77, 141 N. E., 691.

The defense asserts that there was evidence in the record tending to sustain the defense of insanity. The trial court said there was not.

“There is a distinct and definite place in our Anglo-American scheme of trial procedure for the exercise of the jury’s function. The ‘common touch’ implicit in the laymen’s nontechnical approach to the decision of cases has been jealously guarded throughout our judicial history. But definite boundaries of the jury’s province have always been recognized. The judge is to see that they are not transgressed.” Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, at p. 482, 189 N. E., 246.

In civil cases it is established that “4. Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury, ’ ’ but on the other hand, if, after giving the evidence the most favorable interpretation in favor of the party asserting the issue, an adverse conclusion must be reasonably reached, it is the court’s duty to rule on the issue as a matter of law and not permit a jury to speculate. Hamden Lodge v. Ohio Fuel Gas Co., supra; Belshaw v. Agricultural Ins. Co., 150 Ohio St., 49, 80 N. E. (2d), 675. We declare that this rule for civil cases is equally applicable to an issue of insanity created in a criminal case, where such affirmative defense has been pleaded.

We find no evidence in the record before us which required the submission of this issue to the jury. And in this connection, as well as on the question of “irresistible impulse, ’ ’ we again pronounce the law heretofore stated by this court in State v. Cumberworth, 69 Ohio App., 239, 43 N. E. (2d), 510:

“To establish insanity as a defense in a criminal action, the defendant must show, by a preponderance of the evidence, that at the time of committing the act he was laboring under such defect of reason from disease of mind as not to know the nature or quality of the act he was doing, or if he did know it, he did not know it was wrong, and it is not sufficient that he knew what he was doing was wrong but that because of disease of mind he did not have the power to resist committing the act and therefore acted under ‘irresistible impulse.’ ”

Reference is also made to State v. Maish, 29 Wash. (2d), 52, 185 P. (2d), 486, 173 A. L. R., 382, and the annotation on “Irresistible impulse as excuse for crime” in 173 A. L. R., 391.

The evidence furnishes the factual basis for a jury’s conclusion as to guilt and its degree, guided by the instructions of the court as to the law. Premeditation and deliberation were adequately defined in the instructions, and although the court did deny the issue of insanity as a defense, nevertheless, the evidence given by the psychiatrist and others was all before the jury and considered in connection with the elements of intent and purpose to kill and to deliberate and premeditate thereon. The jury found that all of the essential elements of the crime were established in spite of the evidence offered and received for the purpose of showing an irresistible impulse at the time of the killing.

We see no error under this claim.

7. There are several other claims of error which we do not believe require discussion. We have examined them carefully, and find none of a prejudicial nature.

Prior to the preparation of this opinion, it was, of course, necessary for this court to read the more than one thousand pages in the bill of exceptions. We have not deemed it necessary to brief the record in its entirety. The recitation of a few more facts given by the defendant when testifying as a witness in his trial may not, however, be amiss. He said that he had stolen automobiles and committed burglaries in California and was there sent to prison and later paroled; after his parole he traveled to the state of Washington, and there committed burglaries, and assaulted a police officer and stole his gun and billfold; he then returned to California, where he stole the Lincoln automobile which later figured in the Cleveland tragedjn Prom California he drove to Phoenix, Arizona, where he committed another burglary. Prom Arizona he drove to Cleveland, arriving on December 3,1951. His conduct from this point on has been substantially set out in former pages of this opinion.

The case before us depicts a shocking crime. Law triumphs over natural impulses aroused by such a crime, only if guilt be ascertained by due regard for those indispensible safeguards which our nation and state have evolved for the ascertainment of guilt. It is not enough that an accused be accorded the mere form of a trial. When life is at stake, it is a requisite that a trial judge should so guide the jury that they may be fully equipped to determine whether death should be the penalty for conduct.

In our study of this case, we are of the opinion that the many safeguards thrown about an accused person by the law have been observed. We believe that the power of the court was not abused. We believe that the defendant has had a fair trial; and we believe that the evidence shows the defendant to be guilty of murder in the first degree on each count in the indictment beyond peradventure.

We specifically find no error in the record of a prejudicial character (see Section 13449-5, G-eneral Code), and, with this finding, in the fulfillment of our duty, we must affirm the judgment. It will be so ordered.

Judgment affirmed.

Skeel, P. J., and Hurd, J., concur.

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


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    Ramon, Appellant, v. Spike et al., Appellees.
    (No. 646
    Decided October 22, 1951.)

      Mr. James L. McCrystal and Mr. Robert W. McCrystal, for appellant.

      Mr. James J. Carroll, for appellees.
   Fess, J.

This is an appeal on questions of law from a judgment dismissing tlie petition after sustaining a demurrer thereto.

The question presented here is whether a party injured by an intoxicated minor has a cause of action against a tavern keeper who, in violation of law, served such minor intoxicating liquor causing his intoxication, or served such liquor to an intoxicated person.

The answer depends upon the construction of Section 6203, General Code, reading as follows:

“A husband, wife, child, parent, guardian, employer or other person injured in person, property, or mean's of support, by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of a person, after the issuance and during the existence of the order of the Department of Liquor Control prohibiting the sale of intoxicating liquor to such person, shall have a right of action in his or her own name, severally or jointly, against any person selling or giving intoxicating liquors which cause such intoxication, in whole or in part, of such person.” (Italics added.)

It is the contention of plaintiff-appellant that the italicized portion of the above section is a limitation only upon the phrase, “or in consequence of the intoxication, habitual or otherwise, of a person,” and is not a limitation with respect to a person injured by an intoxicated person.

Section 6203, General Code, had its origin in the Act of May 1, 1854 (52 Ohio Laws, 153). It was carried into Section 4357, Revised Statutes (72 Ohio Laws, 35), reading in part as follows:

“Every husband, wife, child, parent, guardian, employer, or other person injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall, after the giving and during the existence of the notice provided for in the next section, have a right of action in his or her own name, severally or jointly, against any person or persons who, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person.”

Section 4357, Revised Statutes, re-enacted as Section 6203 of the General Code, in 1910, read as follows:

“A husband, wife, child, parent, guardian, employer or other person injured in person, property, or means of support, by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of a person, after the giving and during the existence of the notice provided in section sixty-two hundred and five, shall have a right of action in his or her own name, severally or jointly, against any person selling or giving intoxicating liquors which cause such intoxication, in whole or in part, of such person. ’ ’

It will be noted that under Section 4357, Revised Statutes, it is clear that the giving of the notice was a prerequisite to the bringing of the action, but in enacting Section 6203, General Code, in 1910, the codifiers transposed the word, “shall,” from before the word, “after,” to before the phrase, “have a right of action,” and after the clause relating to the notice.

In 1933, Section 6205, General Code, was repealed (115 Ohio Laws, pt. 2, 164), and provision was made in Section 6064-22, General Code (115 Ohio Laws, pt. 2, 140), for an order of the department prohibiting the sale of liquors to an habitual drinker. Section 6203, General Code (115 Ohio Laws, pt. 2, 158), was correspondingly amended by referring to the order of the department in lieu of the notice formerly provided.

The Act of 1906 (98 Ohio Laws, 221), creating the Codifying Commission, provided:

“The said commissioners shall bring together all the statutes and parts of statutes relating to the same matter * # * making alterations to harmonize the statutes with the Constitution as construed by the courts, reconcile contradictions, supply omissions, and amend imperfections in the original acts, so as to reduce the general statutes into as concise and comprehensive a form as is consistent with clear expression of the will of the General Assembly, rejecting all equivocal and ambiguous words, and circuitous and tautological phraseology.”

In case of doubt and uncertainty as to the meaning of a provision of the Code, resort in ascertaining its true meaning may properly be had to the act or Code from which the provision was derived. It is a settJed rule of construction that where legislation has undergone revision and consolidation by codification, the provisions of the Code will be presumed to bear the same meaning as the original sections and will be so construed unless it appears that a change was intended by the Legislature, and a court is warranted in changing the effect of a statute which has undergone revision only when the intent of the Legislature to make such change is clear. State, ex rel. Clough & Co., v. Commrs. of Shelby County, 36 Ohio St., 326; Allen v. Russell, 39 Ohio St., 336; Heck v. State, 44 Ohio St., 536, 9 N. E., 305; State, ex rel. Baumgardner, v. Stockley, 45 Ohio St., 304, 308, 13 N. E., 279; State v. Toney, 81 Ohio St., 130, 90 N. E., 142; Baltimore & Ohio Rd. Co. v. Nobil, 85 Ohio St., 175, 97 N. E., 374, Ann. Cas. 1913A, 1019; Cf. State v. Williams, 104 Ohio St., 232, 135 N. E., 651; Sears v. Weimer, 143 Ohio St., 312, 316, 55 N. E. (2d), 413.

It can hardly be contended that by the mere transposing of the word, “shall,” the Legislature intended to make the notice of the order a prerequisite only in a case relating to the consequence of intoxication, habitual or otherwise, and thereby afford a right of action to a person injured by an intoxicated person regardless of notice.

It is therefore concluded that the demurrer was properly sustained and that the judgment be affirmed.

Judgment affirmed.

Conn and Hunsicker, JJ., concur.

Hunsicker, J., of the Ninth Appellate District, sitting by designation in the Sixth Appellate District.


author: Wiseman, J.

text:
    Stone (Glenn, Admr., substituted plaintiff), Appellant, v. Stephens et al., Appellees.
    (No. 514
    Decided April 21, 1950.)

      Messrs. Routsohm, Routsohn & Nevin, for appellant.

      Mr. Merritt E. Schlafman, for appellees.
   Wiseman, J.

Two actions were instituted in the Common Pleas Court of Greene County by Jeannette Marie Stone, formerly the wife of Sylvan Ray Garver, deceased, for declaratory judgments seeking to determine who was entitled to the proceeds of two insurance policies issued on the life of the decedent, Garver. The actions, involving the same questions of law, were heard and decided together.

During the pendency of the litigation, the plaintiff, Jeannette Marie Stone, died, and the actions were revived in the name of her administrator, John C. Glenn, who appeals to this court on questions of law from an adverse judgment of the trial court.

On January 4, 1943, Garver purchased an insurance policy and a trust certificate (in the nature of an insurance policy) and named his then wife, Jeannette Marie Garver, as beneficiary, reserving the right to change the beneficiary. On July 5, 1944, Jeanette Marie Garver obtained a divorce in the state of Florida and was restored to her maiden name of Jeannette Stone. On July 18, 1944, Garver, while serving as a pilot in the Royal Air Force, Air Transport Command, and while stationed in the city of Montreal, Canada, executed his will in which he gave all his property to his wife, “including all or any insurance policies on my life,” and provided further: “Should I die unmarried, I hereby give and bequeath all my said property to my grandmother, Mrs. Frank Stephens, presently residing at 43 Clover Street, Fairfield, Ohio.”

On December 16, 1944, Garver disappeared at sea and was subsequently listed as dead.

The actions for declaratory judgments were brought by Jeannette Marie Stone, the former wife of the decedent, for the purpose of securing judgments declaring that she was entitled to the proceeds of the policies. Permelia Stephens, as an individual and also as administratrix with the will annexed of Sylvan Ray Garver, deceased, and designated in his will as Mrs. Frank Stephens, the Investors Syndicate of America, Inc., and The Western & Southern Life Insurance Company were named parties defendant. The two insurance companies interpleaded, acknowledging their obligation to pay, and paid into court the amounts due under their respective policies.

The question presented is whether the insured could change the beneficiary named in the policies by the execution of a will. The policies contained provisions setting forth the steps to be taken in order to effect a change of beneficiary. The record does not disclose that the insured made any attempt to change the beneficiary in the manner prescribed in the policies. At the time of the death of the insured, his former wife, Jeannette Marie Garver, remained the'designated beneficiary of the policies.

The trial court found that the insured by the execution of his will clearly indicated his intentions to change the beneficiary and did all that he could do under the circumstances to effect the change. The court found that the defendant Permelia Stephens was the beneficiary and entitled to the proceeds of the policies.

The only error assigned by the plaintiff-appellant is that the judgment of the Common Pleas Court is contrary to law.

It is contended that where a married woman is named as a beneficiary in a policy of insurance on the life of her husband, she is entitled to the proceeds of the policy, notwithstanding a divorce obtained by her before his death. Counsel for the plaintiff cite in support of this proposition Overhiser; Admx., v. Overhiser, 63 Ohio St., 77, 57 N. E., 965; Treadway v. Tewksbury, 38 Ohio Law Abs., 220, 49 N. E. (2d), 955; Hergenrather v. State Mutual Life Assur. Co., 79 Ohio App., 116, 68 N. E. (2d), 833; 29 American Jurisprudence, 976, Section 1309. It is conceded that the fact that plaintiff’s decedent was divorced from the insured would not deprive her estate of the right to recover the proceeds of the policies in which she was named as beneficiary.

It is also contended that where the policy provides the steps to be taken to effect a change in the beneficiarcy such provisions of the policy must be followed to effect such a change. 29 American Jurisprudence, 984, Section 1315. This rule of strict construction has long since been abandoned by the courts in Ohio. It has been held that the provisions in a policy with respect to the manner in which the change of beneficiary can be effected is for the benefit and protection of the insurer and may be waived by it. Atkinson v. Metropolitan Life Ins. Co., 114 Ohio St., 109, 150 N. E., 748; Arnold v. Newcomb, 104 Ohio St., 578, 136 N. E., 206; Glen v. Aetna Life Ins. Co., 73 Ohio App., 452, 56 N. E. (2d), 951; Union Central Life Ins. Co. v. Macbrair, 66 Ohio App., 144, 31 N. E. (2d), 172; Pennsylvania Mutual Life Ins. Co. v. Mecklenborg, Admr., 16 Ohio Law Abs., 162.

It has also been held that, in any controversy between a former named beneficiary and a new beneficiary, if the insurance company interpleads in an action to recover the proceeds of the policy, it thereby waives any interest in the outcome of the action and the cause shall proceed between the respective claimants uninfluenced by any rights or interest of the insurance company. Atkinson v. Metropolitan Life Ins. Co., supra.

In the instant case the insuring companies, having interpleaded and 'paid the amounts due under their policies into court, are no longer interested in the outcome of this proceeding. The above-cited cases are authority for the proposition that a strict compliance with the terms of a policy with respect to the method of changing the beneficiary is not required, and if the insured, during his lifetime, clearly indicates his intention to change the beneficiary the consent of the insurance company is not essential. Atkinson v. Metropolitan Life Ins. Co., supra.

However, the principle of law laid down in those cases does not reach the question presented here.

The question before us is: Can the insured change the beneficiary by a provision in his will?

Where the insured reserves the right to change the beneficiary named in the policy such beneficiary’s interest is not vested but remains only an expectancy during the life of the insured, contingent upon the designated beneficiary being the beneficiary at the time of the insured’s death. If no change is made during the life of the insured, the interest of the beneficiary becomes vested at the insured’s death. Katz v. Ohio National Bank, 127 Ohio St., 531, 191 N. E., 782; Arnold v. Newcomb, supra, 586; 46 Corpus Juris Secundum, 62. In 29 American Jurisprudence, 952, Section 1276, it is stated that upon the death of the insured without changing the beneficiary in fact or law, the fixed rights of the beneficiary cannot be affected by any subsequent act of the insurer. Payment of funds into court neither improves nor prejudices the legal position of either party. McDonald v. McDonald, 212 Ala., 137, 102 So., 38, 36 A. L. R., 761. In Miller v. Miller, 200 Iowa, 1070, 205 N. W., 870, 43 A. L. R., 567, it was held that the method prescribed in the policy for a change of beneficiary is exclusive and the insured cannot change the beneficiary by will.

In 46 Corpus Juris Secundum, 85, Section 1176, is found this statement:

“Where the policy prescribes and regulates the method of changing the beneficiary, the method prescribed is generally held to be exclusive to the extent that insured may not change the beneficiary by will and thereby dispose differently of the proceeds of the policy. ’ ’

The precise question presented in the instant case was determined in Aetna Life Ins. Co. v. Mallory, 291 Mich., 701, 289 N. W., 302; Cook v. Cook, 17 Cal. (2d), 639, 111 P. (2d), 322; and Parks’ Exrs. v. Parks, 288 Ky., 435, 156 S. W. (2d), 480.

In the Michigan case the court held that the insured did not evidence any intention to change the beneficiary during his lifetime and in attempting such change by will his intention became effective only on his death.

In the California case the court held that a beneficiary under a will has no vested right until the death of the testator; that the right of the beneficiary to the proceeds of a life insurance policy becomes vested upon the death of the insured, and no expression in the insured’s will purporting to change the beneficiary can be effective.

In the Kentucky case the court held that the right of the beneficiary in a policy of insurance is more than a mere expectancy, but that such right is subject to be defeated by the insured by the exercise of his right to change the beneficiary. The court in that case also held that if the insured did all that he could do during his lifetime to change the beneficiary, a court of equity will regard that as done which ought to have been done and will uphold the change of beneficiary even though the insured did not comply with the terms of the policy in that regard. It held also that the rights of a beneficiary under a policy of insurance became vested upon the death of the insured and that a change of beneficiary cannot be effected by will.

The Kentucky court, on page 442, discussed the exceptions in the following language:

“There are cases holding that one may effectually dispose of the proceeds of his life insurance by will even though he had specifically named some individual as beneficiary therein. But we apprehend that most of them dealt with policies which contained no restriction on the manner of changing the beneficiary or were benefit certificates of fraternal societies with special regulations, or the named beneficiary predeceased the insured, or there was a failure to draw a distinction between the conditions of the policies.”

It must be observed that the law applicable to the payment of the proceeds of a policy issued by a benefit society is not applicable to the question presented in the instant case.

It is contended in this case that the insured manifested his intention to change the beneficiary during his lifetime by the execution of his will.

This contention is disposed of by the case of Aetna Life Ins. Co. v. Mallory, supra, cited in the Parks case in which the court made this statement on page 444:

“In that case a year elapsed between the making of the will changing the beneficiary in the policy and the death of the insured, during which time he did not endeavor to communicate such change to the insurance company. It was held that he was presumed to know the law that a will is ineffective until death and that a change in the beneficiary of the policy could not be made then. It was further held that the will itself could not be said to be a present assignment of the policy because a will is revocable and the beneficiaries named in it have no vested rights before the testator’s death. ’ ’

In refusing to apply the equitable principle the court, on page 444, said:

“The case at bar is not one where equity should declare done that which ought to have been done by holding the disposition of the will to be a substantial compliance with the conditions of the policies.”

The court then stated a very practical reason for its holding:

“On the proposition of nonprejudice and actual protection of the companies in the instant case by reason of these proceedings, it may be suggested that the case must be decided by the rule and the rule cannot be altered to fit the case. We cannot declare the law to be that an insured person may have a post-mortem change in the beneficiary, for such rule would not only destroy vested rights but would be perilous to all insurance companies. None could safely pay the proceeds of any policy until the probate of a will was barred by the statute of limitations.”

On the effect of the insurance companies ’ interpleading and paying the money into court, the court, on page 446, stated:

“The appellants press their contention that all the insurance companies in this case waived their rights in that respect by not having pleaded them and by standing by indifferently, merely seeking the direction of the court as to the payment of the proceeds either to plaintiffs or to the defendants. * * * But the better reasoning, it seems to us, and the weight of authority are that the rule of waiver does not extend beyond the death of the insured. That the rights of the beneficiaries vest at that time is not open to question. * * * ”

The court then cited and quoted from Metropolitan Life Ins. Co. v. Jones, 307 Ill. App., 652, 30 N. E. (2d), 937, 939, as follows:

“ ‘This position is untenable. When the insurance company was faced with the conflicting claims of defendants, it unquestionably had the right to ask the court by interpleader to determine to which of the claimants the proceeds of the policy rightfully belonged and thereby protect itself against possibility of double liability. It would be a strange doctrine which would permit the insurer to go into court in this manner to protect its own right and by so doing waive the rights of others. The rights of the respective parties to the fund were fixed by law upon the death of the insured and could not be affected by the action of the insurer in bringing the money into court by inter-pleader in order to be relieved of litigation because of conflicting claims to it. ’ ”

See, also, Wannamaker v. Stroman, 167 S. C., 484, 166 S. E., 621.

We revert to a consideration of the first paragraph of the syllabus in Atkinson v. Metropolitan Life Ins. Co., supra, which is as follows:

“Where a life insurance policy contains therein written a condition that such ‘policy is written with the right of the insured to change the beneficiary,’ such right is absolute and may be exercised at any time during the lifetime of the insured and the consent of the insurance company is not essential thereto. ’ ’ (Emphasis ours.)

We have been able to find only one reported case in Ohio in which this question has been determined. In Bennett, Exrx., v. Bennett, 70 Ohio App., 187, 45 N. E. (2d), 614, the first paragraph of the syllabus is as follows:

“Neither the beneficiary of a life insurance policy nor the beneficiary of a joint and survivorship bank account can be changed by a residuary clause in a will. ’ ’

On page 188 the court stated:

“The evidence before this court justifies the conclusion that the life insurance money paid to the wife in her individual capacity as the named beneficiary in the insurance policy is not an asset of the estate of her husband, and the provision in the residuary clause of the will which bequeaths to the testator’s son and his wife, ‘ share and share alike, all the residue of * * * [the testator’s] estate, both real and personal, including insurance, ’ does not effect a change of beneficiary. The evidence is conclusive of the fact that no attempt was made by the testator in his lifetime to comply with the terms of the contract of insurance regulating a change of beneficiary. And under such circumstances the general language used in the residuary clause of his will does not effect such a change when at the time of execution and thereafter the contract of insurance was in force. ’ ’

It is elementary that a will is not effective and does not become operative until the death of the testator. We also find the law to be that the right of the beneficiary to the proceeds of a life insurance policy becomes vested upon the death of the insured. The rights of the plaintiff’s decedent, the designated beneficiary in the policies, became vested at the moment that the will of the insured became operative. If we were to hold that the insured may change the beneficiary in a life insurance policy by so providing in his will the effect would be to permit the insured to destroy vested rights. . This may not be done. In the instant case, the insured did not manifest an intention, by the execution of his will, to change the beneficiary in the policies during his lifetime.

The execution of the will by the insured, in which he made provision for change of beneficiary in the two life insurance policies in question, was not effective to deprive the beneficiary, designated in the policies of insurance, on the date of insured’s death of the proceeds of such policies. The plaintiff’s decedent being the designated beneficiary in the policies at the time of the insured’s death, the plaintiff was entitled to judgment as prayed for.

Judgment reversed.

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


author: Guernsey, J.

text:
    Bevilacqua, Appellant, v. Mack, Appellee.
    (No. 157
    Decided April 4, 1951.)

      Mr. Otto W. Hess and Mr. David Meekison, for appellant.

      Messrs. Sutphen & Hummer and Mr. Karl Wearner, Jr., for appellee.
   Guernsey, J.

This is an appeal upon questions of law from a judgment of the Common Pleas Court of Defiance County, Ohio, in an action wherein the appellant, Joseph Bevilacqua, was plaintiff, and the appellee, Ned Mack, was defendant.

The action is one for damages for personal injuries sustained by plaintiff in a collision between an automobile operated by plaintiff and an automobile operated by defendant, at the intersection of a north and south highway and an east and west highway, alleged to have been caused by the negligence of the defendant.

The judgment from which this appeal is taken was entered upon a verdict directed by the court in favor of the defendant.

The plaintiff-appellant assigns error in that said judgment is contrary to law.

Considering the evidence in a light most favorable to plaintiff, as is required to be done upon the direction of a verdict against him, it tends to prove the following facts:

Preceding the collision between the automobile operated by the plaintiff and the automobile operated by the defendant, the plaintiff was operating his automobile upon a north and south highway, proceeding in a southerly direction, and the defendant was operating his automobile on an east and west highway, proceeding in an easterly direction.

Neither highway was of such a character as to entitle the operators of motor vehicles upon it to preferential status as to right of way over the operators of motor vehicles upon the other highway.

North of the intersection upon which the collision between the two automobiles occurred, the highway upon which the plaintiff was operating his automobile was 40 feet in width, the metal, or paved portion thereof, being 12 feet in width.

West of the intersection where the collision occurred, the highway upon which the defendant was operating his automobile was 60 feet in width, the metal, or paved portion thereof, being 15 feet in width.

The intersection of the two highways was 40 feet in width east and west and 60 feet in width north and south.

A schoolhouse, which to some extent obstructed the view of each of the automobile operators of the highway upon which the other was procéeding, faced the east and west highway and was 27 feet in width east and west and 44 feet in depth north and south, and the easterly wall thereof was 39 feet from the center of the paved portion of the north and south road and 33 feet from the west edge of said paved portion.

The south wall of the schoolhouse was 46 feet north of the center of the paved portion of the east and west road, or 38 feet from the north edge of said paved portion.

A parked truck which also obstructed the views of the operators of the respective automobiles was headed north at the southeast corner of the schoolhouse, the front end practically against the schoolhouse. The rearmost part thereof was 10 feet north of the north edge of the paved portion of the east and west road. The right side of the truck was practically in line with the east side of the school building which side of the building, as above mentioned, was 39 feet from the center of the paved portion of the north and south highway.

Consequently, the view of the plaintiff to the right, in operating his automobile into the intersection of the highways before entering the paved portion of the intersection of the highways, was unobstructed for a distance of 10 feet.

The plaintiff, at approximately 200 feet north of the intersection, slackened the speed of his automobile which he was then operating at a rate of speed of approximately 35 miles per hour, to such a speed that as it entered the intersection it was proceeding at a speed of from 5 to 10 miles per hour.

The plaintiff looked to the left as his automobile entered the intersection and did not observe any vehicle approaching from that direction. And he then, having passed the truck parked at the south side of the schoolhouse which had obscured his view, looked to the right and observed the automobile operated by defendant approaching from the right at a distance of approximately 50 feet.

The collision followed almost instantaneously and within a second or two when the front wheels of The plaintiff’s automobile had reached and were upon the paved portion of the intersection of the two highways.

The defendant did not, at the time of the collision or previous thereto, observe the automobile of the plaintiff.

It does not appear from the evidence that the plaintiff had observed the automobile operated by defendant until he looked to the right at the intersection, as above mentioned.

Plaintiff, and his wife who was riding in his automobile with him and occupying the left side of the front seat thereof at the time of and preceding the collision, both testified that when they observed the automobile operated by defendant, after passing the parked truck at the south side of the schoolhouse, defendant’s automobile was being operated at a speed of about sixty miles per hour.

The right front part of plaintiff’s automobile was struck by defendant’s automobile and both automobiles were practically demolished by the force of the collision, and the plaintiff sustained serious injuries.

Upon the above-mentioned factual situation, as neither highway had preferential status with reference to the other, the operators of the respective vehicles, in the operation of same, were governed by the provisions of Section 6307-40, General Code, prescribing that the operator of a vehicle shall yield the right of way at an intersection to a vehicle approaching from the right.

The phrase, “right of way,” as used in Section 6307-40, General Code, is defined in Section 6307-2, General Code, as : “The right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it * * # is moving, in preference to another vehicle * * * approaching from a different direction into itg * * * path. ’ ’

In the case of Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831, it was held in the first paragraph of the syllabus that Sections 6310-28 and 6310-28a of the General Code, now designated Sections 6307-2 and 6307-40 of the General Code, construed together, confer the absolute right of way upon a vehicle approaching from the right, qualified only by the requirement that in proceeding uninterruptedly it must proceed in a lawful manner.

In the fifth paragraph of the syllabus in the above case it is also held that if a favored driver discovers that the other is not yielding the right of way he must exercise ordinary care not to injure the other.

While the decision in the above-mentioned case determines the duty of an operator of a vehicle approaching from the right, and the duty of such favored driver, upon discovery that the other is not yielding the right of way, it does not in any way determine or reflect upon the right and duty of the nonfavored driver in case the favored driver is not proceeding in a lawful manner; and there is no statute prescribing the duty of the unfavored driver in this situation.

This question was under consideration in the case of Willard v. Fast, 75 Ohio App., 225, 61 N. E. (2d), 807 (motion to certify overruled by the Supreme Court January 31, 1945), in which it was held that the statntes being silent as to the duty of an unfavored driver when he discovers that the motorist on his right is not approaching the intersection in a lawful manner, and they both arrive at the intersection at or about the same time, it is the duty of the unfavored driver to not only refrain from injury' to the other, but also to use ordinary care for his own safety.

It was also held that an unfavored driver, looking for the approach of vehicles upon his right at an intersection, must look within such a distance that he may safely bring his vehicle to a stop before entering the path of an oncoming vehicle approaching from his right.

Applying these holdings, the court rendered a judgment against an unfavored driver and for the favored driver upon the ground that the unfavored driver was contributorily negligent as a matter of law in not looking to the right at the intersection at such a distance before entering the path of an oncoming automobile that he could safely bring his vehicle to a stop before entering its path.

We approve the reasoning upon which that decision is based, and hold further, upon the same reasoning, that the driver of a vehicle approaching an intersection, where a vehicle to his right, pursuant to the provisions of Section 6307-40, General Code, is entitled to the right of way, owes the duty of using ordinary care for his own safety and to avoid injury to others, to proceed in such a manner and at such a speed that, in the event a vehicle is approaching from his right in such a manner and/or at such a speed that he can not safely pass in front of it, he may safely bring Ms automobile to a stop before entering the path of the approaching vehicle.

Considering the factual situation in the instant case, above set forth, in view of the statutory provisions, decisions and holdings, and assuming that the defendant, as contended by the plaintiff, was negligent in operating his automobile at an excessive speed and upon the wrong side of the paved portion of the roadway, the evidence shows that the plaintiff was negligent as a matter of law in failing to use ordinary care for his own safety in not looking for the approach of the automobile from his right at such a distance from the paved portion of the intersection that he could safely stop the vehicle driven by him before entering the path of the approaching automobile, and in not operating his automobile in such a manner that he could look to the right for approaching vehicles and safely bring it to a stop before entering the path of the approaching car of defendant; and that as a matter of law such negligence on the part of the plaintiff contributed to cause the injuries of which he complains.

As the plaintiff was contributorily negligent in the respects mentioned, he is precluded from recovering from the defendant, and the judgment of the Common Pleas Court is not contrary to law and is affirmed, at costs of plaintiff, and the cause remanded for execution.

Judgment affirmed.

Middleton, P. J., and Jackson, J., concur.


author: Matthews, J.

text:
    Bepler, Appellant, v. Reardon et al., Appellees.
    (No. 7547
    Decided June 9, 1952.)

      Mr. Walter K. Sibbald, for appellant.

      Mr. Gordon Iliff, for appellee Maurice Reardon.

      Mr. C. Watson Hover, prosecuting attorney, Mr. William J. Schmid and Mr. Carl B. Rubin, for appellee Gilbert J. Shaver, county recorder.
   Matthews, J.

The record presented in this case is meager and leaves much to conjecture. It does show that in a proceeding to register certain real estate under the Torrens Act (Section 8572-1 et seq., General Code) the county recorder was in doubt as to how he should proceed, and, therefore, referred the matter to the Common Pleas Court for determination and direction.

We learn from the briefs, particularly from appellant’s brief, and the title examiner’s report, that an action was commenced by Maurice Reardon to register and partition this real estate. He alleged that he owned an undivided two-thirds title and one .Julius Bepler owned the other one-third. Julius Bepler moved to dismiss the action to register on the ground that it appeared that the plaintiff did not own the complete legal or equitable title. After filing this motion, but before the court had passed upon it, Julius Bepler died. Grace A. Bepler as the wife of Julius Bepler was made a party to the action originally, and, after the death of Julius Bepler, she was made a party in the capacity of executrix of his estate. She was not made a party as the successor in title of Julius Bepler. It is said that there was no evidence adduced that she owned the undivided one-third of the title that had been owned by Julius Bepler.

After Julius Bepler died, the court overruled the motion to dismiss and later entered a decree of registration of the title.

Shortly after the decree was entered and before the certificate of title had been delivered to anyone, Grace A. Bepler delivered to the county recorder a written demand that he not deliver a certificate of title to anyone, and, alleging that she was an owner of the real estate, formally surrendered said certificate to him for cancellation.

Upon receiving this demand and surrender of the certificate, the county recorder, acting under the provisions of Section 8572-40, General Code, referred the question to the Common Pleas Court, stating in the referral document the doubt he entertained was as to whether a “cotenant owning undivided one-third of registered land covered by the certificate of title can surrender her certificate of title, and as to whether the county recorder may issue an owner’s duplicate certificate of title to one cotenant for his interest, not withdrawing the objection thereto by the remaining cotenant. ’ ’

The matter was referred to one of the title examiners, who reported that “in his opinion the recorder should not deliver the owner’s duplicate certificate of title to either cotenant, due to the fact that this cause was originally one for registration and partition, that the partition case is still pending and decree of registration should only be issued and certificate delivered to the purchaser at the partition sale, whether it be one of the cotenants who elects to take or a stranger who buys at the sheriff’s sale. In either event the right of Grace A. Bepler to deregister whatever property she owns outright and as sole owner will be protected at that time, the examiner is of the opinion to permit her to dereg’istér the entire title would violate the rights of Maurice Reardon to have his interest registered, and it is apparently impractical to deregister only her fractional interest.”

The Common Pleas Court thereupon found that “the recorder of Hamilton county may not accept surrender of a certificate of title for deregistration of a fractional or partial interest in real estate, and he is hereby instructed to proceed in accordance herewith.” That is the order appealed from.

Counsel for Grace A. Bepler urges three reasons for the reversal of this order:

(1) It is contended that Section 8572-40, General Code, does not confer jurisdiction upon the Common Pleas Court to direct the county recorder as to whether a certificate of title should be cancelled. State, ex rel. Draper, v. Wilder, Recorder, 145 Ohio St., 447, 62 N. E. (2d), 156, is relied upon to support that contention. We do not so interpret that case. It was an action in mandamus to compel the county recorder to issue a certificate of title upon presentation of an auditor’s deed delivered to the relator upon a tax sale of forfeited lands. There was no pending case for the registration of a land title. It involved the question of the procedure to be followed upon a sale upon the forfeiture of registered land for the nonpayment of taxes. The answer to that question depended on whether Section 5762, General Code, in the chapter oh “Forfeited Lands” repealed by implication Section 8572-58, General Code, a part of the Torrens Act. The court held that it did not.

Another question in that case was whether mandamus should issue to compel the issuance of a certificate of title in accordance with a finding of the Court of Common Pleas, upon an application by the county recorder, that Section 5762, General Code, did repeal Section 8572-58, General Code, and that a certificate of title should be issued.

The Supreme Court held that Section 8572-40, General Code, authorizing the county recorder to seek the direction of the Court of Common Pleas when in doubt in a registration proceeding had no application, and as there was no genuine controversy it could not be treated as an action for a declaratory judgment, and that the proceeding was no more than an attempt to get an advisory opinion from the court.

In contrast to the situation there presented, we have here an issue raised between Grace A. Bepler and Maurice Reardon — cotenants—and a doubt on the part of the county recorder as to how that issue should be resolved — and this in a pending action to register the title to land. In State, ex rel. Draper, v. Wilder, Recorder, supra, the finding was that the county recorder should issue certificates of title to all persons presenting auditor’s deeds and paying the required fee. The order of the court in the case at bar is limited to directing the county recorder as to his duty in the specific pending registration proceedings.

We conclude that the court had jurisdiction to make the order appealed from.

(2) Next, it is urged that the entire registration proceeding is void. This results it is said because the Torrens Act (8572-1 et seq., General Code) does not authorize the institution of a registration proceeding by a partial owner of a fee title. It is true that by Section 8572-4, General Code, it is required that the applicant or applicants in a proceeding solely for registration shall singly or collectively own the fee title and this is recognized in many of the later sections. It is equally clear that an exception to this general rule by Section 8572-64, General Code, is provided. It expressly authorizes the plaintiff — a co-tenant — in an action for partition to include a cause of action for registration of the title and requires him to make all necessary parties for registration. At no place is there a suggestion that the other cotenants must join in the prayer for registration. It would seem to be judicial legislation to interpolate such a requirement.

(3) Finally, it is contended that the court erred in the exercise of its jurisdiction, in that it should not have instructed the county recorder not to accept surrender of the certificate of title for deregistration of a fractional or partial interest in real estate.

This contention raises the question as to the meaning of Section 8572-64», General Code (106 Ohio Laws, 24). That section is as follows:

“No decree or order of sale or partition heretofore or hereafter made in any suit, action or proceeding, mentioned in said Section 8572-64, and no sale, conveyance or partition or decree confirming the same made in any such suit, action or proceeding shall be held void or in any wise affected by want of conformity of such suit, action or proceeding to the requirements of said section.

“Any person owning real estate the title to which is registered may surrender his certificate to the county recorder, who shall thereupon cancel said certificate of record, and thereafter said title shall be considered the same as if it had never been registered. All deeds and mortgages heretofore filed conveying registered lands, the registration certificate of which has been surrendered as herein provided for, shall be recorded according to law, and thereafter the lands conveyed therein shall be considered the same as if they had never been registered.”

That section was not in the original Torrens Act, passed in 1913. It was passed in 1915 as an emergency act. In form, it was an amendment to Section 8572-64, General Code, which was repealed and re-enacted as Sections 8572-64, 8572-64a and S572-64&, General Code. Later, Section S572-64&, General Code, was repealed. The amending act (106 Ohio Laws, 24) is headed: “To amend Section 8572-64 of the General Code, to make optional the registration of title of land sold in partition or in suits brought by an assignee or other officer appointed by a court, and to cure defects in such proceedings.”

Having reached the conclusion that this section authorizes any eotenant of a fee title to real estate to apply for registration in an action for partition of the land, provided all necessary parties to a registration are made parties to the action, and provided the court approves, the only remaining question is whether one of the cotenants has the power to prevent a registration.

We are convinced from a reading of these sections that the intent was to provide special provisions applicable in partition cases. If any cotenant desires it, the title may be registered in the proceeding so that all question as to the soundness of the title will be removed and the title quieted, and if no sale takes place then the person entitled may, upon a hearing, obtain the advantage of the registration proceeding and have the title registered in his name.

Section 8572-64, General Code, as originally enacted, contained mandatory language, whereas, the amended section is in terms of permission. While we are not clear as to the 'purpose of these changes, it does seem that the amended act as a whole gives the court more discretion in permitting or refusing registration.

Section 8572-64a, General Code, is entirely new. In terms, it authorizes any person owning real estate, the title to which is registered, to surrender his certificate and have the title deregistered. It seems clear to us that this language must be limited to those titles that are registered in partition cases and other sales mentioned in that section. The statute in effect gives to the holder of the title emanating from such proceedings the option of deciding whether he desires a registered or unregistered title.

To give Section 8572-64a, General Code, the broad meaning of authorizing all holders of registered titles to surrender their certificates and secure a deregistration of their titles would require a holding that the General Assembly intended to totally repeal Section 8572-86, General Code, which provides that “No land once brought under and made subject to the provisions of this act [G. C. 8572-1 to 8572-118] shall ever, be withdrawn therefrom. ’ ’

That Section 8572-86, General Code, was not repealed by Section 8572-64o is recognized by the Supreme Court in State, ex rel. Draper, v. Wilder, Recorder, supra, in which the court at page 453 said: “Except as provided in Section 8572-64a, Genera] Code, no land once brought under and made subject to the act pertaining to the registration of land titles shall ever be withdrawn therefrom. See Section 8572-86, General Code.”

At no place in Section 8572-64a, General Code, is one cotenant given the right to prevent the registration of the title which is the subject of the partition proceeding. Should he become the owner of the complete title as a result of the partition proceeding, he would have the option of determining whether he wanted a registered or unregistered title — but not otherwise.

A partition action is instituted by one or more co-tenants against other cotenants. In connection with such action, the plaintiff or plaintiffs owning only a fee in an undivided portion are authorized by Section 8572-64, General Code, to initiate registration proceedings. It certainly would be anomalous if the General Assembly in the same act clothed a defendant — cotenant —with the absolute power to prevent the registration.

We, therefore, hold that the court did not err in its direction to the county recorder.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Lewis, d. b. a. American Realty Co., Appellee, v. Anspon et al., Appellants.
    (No. 2158
    Decided November 20, 1951.)

      Mr. Joseph W. Sharts and Mr. H. H. Singer, for appellee.

      Messrs. Myers, Leyland & Patterson, for appellants.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Dayton which rendered judgment for the plaintiff for a brokerage commission in the amount of $427.50 against all three defendants, appellants herein.

The cause was tried to the court without the intervention of a jury. The court rendered a separate findings of fact and conclusions of law.

Plaintiff’s suit consisted of two causes of action. In the first cause of action plaintiff alleged that there was due him from the defendant William Houser $427.50 as a brokerage commission for services rendered pursuant to a contract. In the second cause of action plaintiff alleged that William Houser, Alwin W. Anspon and Mary Kathryn Anspon entered into a conspiracy to defraud him of his commission. In the second cause of action, which was based on fraud, the plaintiff alleged he was damaged in the sum of $427.50. The plaintiff did not allege or attempt to prove at the trial that he was damaged in any amount over and above the amount which he claimed to be due as commission.

The trial court found that there was due the plaintiff on his first cause of action, according to the terms of the contract, the amount of $427.50 as commission earned. On the second cause of action the trial court found that there was no damages proved. However, the court found that the plaintiff was entitled to judgment, and in a separate entry rendered judgment on both causes of action against all three defendants in the sum of $427.50 with interest at six per cent per annum from March 28, 1949.

Three errors are assigned: First, the overruling of defendants’ motion to dismiss at the close of plaintiff’s testimony; second, the overruling of defendants’ motion to dismiss at the conclusions of all the evidence; and, third, error committed in the separate findings of fact and conclusions of law.

The first assignment of error is not well made. Upon the motion to dismiss being overruled, the defendants presented evidence in defense. Thus, any error in the action of the trial court in overruling the motion was waived and does not form the predicate of error on review. Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199; 2 Ohio Jurisprudence, 1590, Section 836.

The second and third assignments of error raise practically the same questions and will be considered together. The brokerage contract on which the plaintiff bases his right to recover a commission was entered into on March 28, 1949. On March 9, 1949, the Ohio State Board of Real Estate Examiners revoked the real estate broker’s license which had been issued to the plaintiff in January 1949. The plaintiff received notice of such revocation by letter on March 22, 1949.

The defendants contend that the plaintiff could not maintain the action under the provisions of Section 6373-48, General Code, which provides:

“No right of action shall accrue to any person, partnership, association or corporation for the collection of compensation for the performance of the acts mentioned in Section 6373-25 of the General Code without alleging and proving that such person, partnership, association or corporation was duly licensed as a real estate broker or a real estate salesman, as the case may be, at the time the cause of action arose.” (Emphasis ours.)

In determining the issue presented, it is sufficient for this court to hold that the cause of action arose on and after the date of the contract, to wit, March 28,1949. The defendants contend that since plaintiff’s license was revoked prior to March 28, 1949, he cannot maintain the action, but the record shows that the plaintiff appealed to the Common Pleas Court from the order revoking his license. The record shows further that the Common Pleas Court under authority of Section 154-73, General Code (Administrative Procedure Act), by order duly made, granted a suspension of the order. The order of revocation being suspended, the plaintiff was not deprived of the right to do business under the license. The suspension order made by the Common Pleas Court suspended the operation of the order revoking the license from ihe date it became effective, to wit, March 22, 1949.

We come now to consider specifically the second and third assignments of error as they relate to the sufficiency of the evidence to support a judgment in favor of the plaintiff. We are in accord with the trial court in its finding that no damages over and above the liability for commission in the sum of $427.50 was shown in support of a recovery on the second cause of action, but the trial court rendered judgment on the second cause of action as well as the first cause of action. The amount of such judgment was $427.50, which was the amount the court found, due for com mission earned on the first cause of action. Also, the trial court rendered judgment not only against Houser, but against the Anspons as well. The Anspons were not included as defendants in the first cause of action and, therefore, judgment could not be rendered against them under the first cause of action. The Anspons were included as defendants with Houser in the second cause of action, which should have been dismissed for failure of proof. Therefore, the finding and judgment was prejudicially erroneous so far as it affects the Anspons and should be reversed as to them.

Did the court err in rendering judgment against Houser on the first cause of action for the amount of the commission?

The essential facts found by the trial court with which we are in accord are that the Anspons were the owners of a vacant lot on which they desired to build a house; that Houser was in the house contracting business; that plaintiff, Lewis, a real estate broker, obtained the signatures of the Anspons to a written proposition on March 28, 1949, to pay $8,550 for the construction of a house on the vacant lot; that such house was to be constructed according to certain plans and specifications as shown on “design No. D-65 of the small house plans book,” and construction was to be approved by the Federal Housing Administration; that the offer was subject to the Anspons securing a $7,450 loan from the Federal Housing Administration; and that the Anspons agreed to and did deposit with Lewis $100 to cover costs of the plans and fee for application for the loan, leaving $35 balance on deposit.

The offer was accepted by Houser in writing. The acceptance clause which he signed is as follows:

“I hereby agree to accept the above offer and agree to deliver the proper papers to the prospect within the time specified. Also, to pay to the American Realty Company a commission of five per cent for brokerage service.”

The evidence shows that Paul E. Lewis, the plaintiff herein, was doing business as a broker under the name of the American Realty Company; that Lewis brought the Anspons and Houser together and secured their signatures on the written proposal; that Lewis induced Houser to prepare the plans for the house; and that Lewis assisted in making application for the loan. The loan was rejected on the ground that the plan as submitted did not provide for a side driveway or access from the alley, which was dedicated but not improved. When this fact was made known a dispute arose between Lewis, the Anspons, and Houser. The evidence on this point is voluminous, to some extent confusing, and on certain points definitely in conflict. The Anspons testified that they told the agent of Lewis that they wanted a side drive. Lewis and his witnesses dispute this, but do make certain admissions which lend support to the contention of the Anspons. Houser contended that in mailing the plans the agent of Lewis did not suggest a side drive, but did suggest the showing of the alley on the plans to be submitted. The evidence shows that the regulations of the Federal Housing Administration require either a side driveway or access from the alley. All parties agreed not to attempt to improve the alley, and the lot was too narrow to provide space for a side drive with the type of house which was to be constructed. Several weeks elapsed during which time numerous conversations took place between the parties. Lewis suggested that the Anspons and Houser agree on another plan of construction which would allow sufficient space for a side driveway, but Mrs. Anspon stated that she did not want to proceed further with the deal and that she was through. Lewis finally agreed to return to thé Anspons the balance of the deposit of $35 which was done,, the check being dated June 14, 1949. The evidence supports the conclusion that the conversation between Lewis and Mrs. Anspon, at which time he offered to return the balance of the deposit, took place about one week before the check was actually mailed. The evidence shows further that prior to receiving the check the Anspons and Houser had held conferences, the purpose of which was to agree on a new house plan which would allow sufficient space for a side driveway. The Anspons made contact with the loan company and were advised to take no further steps until the returned check had been issued. The evidence shows that on the day the check was issued the Anspons and Houser drew a new written agreement, the date of the agreement being June 14, 1949, the figure “14” being crossed out and the figure “18” inserted with pen and ink. The house to be constructed on the lot in question was to cost the sum of $8,550. The new plans which were submitted to the loan company were approved and the loan granted on the original application without the payment of an additional fee. The house was constructed, and upon final settlement the agent of Lewis demanded five per cent commission on $8,550, which was refused.

The defendants contend that the mistake in the original plans was due to the negligence of Lewis and his agent and that he should not profit by his own mistake. Conceding that Lewis was at fault, the Anspons too are not without fault. Mr. Anspon saw the original plans and made no objection. It cannot be successfully contended that the failure to construct the house according to the original plan was entirely due to the fault of Lewis, but the issue presented raises other questions. The real issue is whether, in light of all the circumstances, Lewis is entitled to recover his commission on the theory that he was the procuring cause of the second contract entered into between Houser and the Anspons.

The defendants contend that the return of the deposit to the Anspons shows an abandonment on the part of Lewis and cite for authority the case of Imoberstag v. Vail, 3 Ohio Law Abs., 490. While the return of the deposit is evidence of abandonment, it is not conclusive. The evidence will support the conclusion that at the time Mrs. Anspon was negotiating with Lewis for the refund of the deposit, she was also negotiating with Houser on the second deal. The mere fact that Lewis returned the deposit to Mrs. Anspon does not deprive him of his right to a commission for the consummation of the second deal if, under all the evidence, he was the procuring cause of the second transaction. In many respects the second transaction was a part of the first. In order to recover his commission it was not essential that Lewis be present in person at the time the second agreement was entered into between Houser and the Anspons; neither was his signature required on this contract. Portney v. Frank, 77 Ohio App., 357, 372, 65 N. E. (2d), 290.

The evidence of conspiracy presented in support of the second cause of action was very pertinent in determining whether Lewis had abandoned the transaction or whether, under the first cause of action, he was entitled to recover commissions earned on the ground that he was the procuring cause of the transaction consummated. The conduct of Lewis which the defendants claim shows an abandonment was fully explained by the evidence to the effect that Mrs. Anspon stated she was through, when, as a matter of fact, the evidence shows that she was not through and was negotiating at the time with the principal of Lewis on a second deal.

The situation presented in this case is analogous to the right of a broker to a commission where the principal sells to the prospective purchaser on other terms than that offered by the broker. The principle is well established in Ohio that where a broker brings the parties together and the principal, wdthout any knowledge on the part of the broker, consummates a deal with the prospect without the assistance of the broker, the broker is entitled to recover commission. Suter v. Farmers Fertilizer Co., 100 Ohio St., 403, 126 N. E., 304; Mecklenborg v. Niehaus, 85 Ohio App., 271, 84 N. E. (2d), 763; Portney v. Frank supra; 6 Ohio Jurisprudence, 229, Section 55; 8 American Jurisprudence, 1101, Section 190; and 12 Corpus Juris Secundum, 215, Section 93. The case of Rabkin v. Calhoun, 83 Ohio App., 222, 81 N. E. (2d), 241, cited by defendants is distinguishable on the facts.

In our opinion the evidence is ample to sustain the judgment of the trial court on the ground that Lewis was the procuring cause of the transaction entered into between Houser, his principal, and the Anspons. Therefore, Houser is liable to Lewis for commissions earned in the amount of $427.50 as found by the trial court.

Coming now to render the judgment which the trial court should have rendered this court renders judgment in favor of the Anspons on both causes of action, and in favor of Houser on the second cause of action, and in favor of the plaintiff and against the defendant Houser on the first cause of action.

Judgment reversed in part and affirmed in part.

Judgment accordingly.

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