author: By THE COURT By THE COURT.

text:
    LAYMON (Everett), Plaintiff-Appellant, v. HAGANS, Defendant-Appellee.
    ON MOTION TO DISMISS APPEAL
    No. 4577.
    Decided May 9, 1951.
    Decided October 19, 1951.
   OPINION

By THE COURT

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal on questions of law and fact for the reason that it is not a chancery case, being an action for services rendered. The motion will be sustained, but the cause will be retained for determination on questions of law only. Leave is granted to perfect said appeal in accordance with Supplement to Rule VII of this Court.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.

ON MOTION TO DISMISS APPEAL

No. 4577.

OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal on questions of law for the reason that appellant has failed to file assignment of errors, brief and bill of exceptions in this court within the time provided in Supplement to Rule VII. The record reveals that on July 13, 1951, an entry was filed reducing the appeal to one on questions of law only and appellant was granted leave to perfect the appeal in accordance with Rule VII, which has not been done The motion will be sustained.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By CROSSLAND, J:—

license: Public Domain

text:
    ZANESVILLE (City), Plaintiff, v. ZANESVILLE CANAL AND MANUFACTURING COMPANY, Trustee et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 37332.

      J. Lincoln Knapp, City Solicitor, Zanesville, for plaintiff.
    James Gorrell, Columbus, for defendant, Zanesville Canal & Mfg. Co.
    Homer Walters, Zanesville, for defendant, C. S. Leasure, individually.
    Joseph McNerney, Pros. Atty., Zanesville, for defendant, Muskingum County.
   OPINION

By CROSSLAND, J:—

This Court’s view, heretofore expressed, that the law is a living force intended to serve living needs, remains unchanged.

The law is dynamic, not static. While it is a bedrock of settled, solid principles, underlying all local governmental operations and objectives, so as to confine changes of form and substance within limitations of express authority, such confinements and limitations were never intended to retard, frustrate or defeat progress and modernity.

The law looks forward, not backward, to the future, not to the past, to serve the living while honoring the dead, to respect the past for its contribution to the present and future, but not to corrode and die in the forward march of program, progress and purpose. For law was designed and intended to serve the organized society of mankind, not to stifle or cripple man’s effort to grow, advance and prosper.

When John Mclntire and Jonathan Zane bought the original tract of Zanesville for $100 and dedicated Lots 8 and 16 in Square 13 for a Market House, they did so as an express condition required by existing law in order to sell other lots. It was a statutory dedication without any reservation of reversionary rights, necessary in order to sell other lots without penalty of prosecution. Hence, the dedication to public use of these two lots was legally required and wholly incidental to the business operation of John Mclntire and Jonathan Zane, not a free-handed gratuity. Accordingly, no ties to said lots remained to either of them or their heirs or successors and, similarly, no compensatory obligation attends their present day statutory appropriation for legislatively defined public uses.

Inasmuch, however, as the law does not look with favor upon doing violence to the well established law of an earlier generation, justly conceived and fundamentally sound, even though the effect is to create an anachronism in the very heart of- the downtown section of the City of Zanesville, it does very definitely afford a remedy, equally sound in principle and reason.

Through the medium of eminent domain, without acquiring absolute fee simple title but only the legal right to hold and administer the property as a trust for legally recognized present"public use, in the interest of the general public of the City of Zanesville directly and of Muskingum County indirectly, the City of Zanesville is thereby enabled to pursue a lawful, proper and needful purpose.

The metamorphosis from a once flourishing farmers’ market place to a market house in naked name, now principally subsidizing a few Zanesville retail businesses for one day a week, is as far removed and outmoded from the reasonable contemplation of the men of 150 years ago as today’s Zanesville municipal court and jail structure is abhorrent and repugnant to the good taste and sound sense of the 1953 citizenry of Zanesville and Muskingum County.

In the event of any future failure to fulfill to the public the trust of an appropriation in the nature of eminent domain without payment of undue compensation, since the equitable interest and entire value is already unreservedly dedicated to the public use, reversion to the original market house appropriation would thereupon undoubtedly result, in the absence of some other or further legislatively recognized proper and necessary public appropriation and use.

This Court, therefore, reiterates its former holding and basic conclusion and reaffirms its original view that plaintiff, the City of Zanesville, may exercise the judgment of its municipal authority in acting to appropriate, under court supervision and direction, the premises constituting the aforesaid lots, for the purposes resolved by the Zanesville City Council pursuant to statute.

Journal Entry may be prepared and submitted accordingly, with exceptions noted in behalf of any adverse parties.


author: By WATTERS, J.

text:
    KLEIN, Plaintiff, v. B. F. GOODRICH COMPANY, a Corporation, Defendant.
    Common Pleas Court, Summit County.
    No. 175348.
    Decided February 21, 1952.
    Maurice Shapiro, Cleveland, for plaintiff.
    Wm. A. Kelly of Wise, Maxon, Roetzel, Kelly, Akron, for defendant.
   OPINION

By WATTERS, J.

In Crumpton v. Goodrich Company, which went up from Summit County, the Supreme Court of Ohio sustained the Common Pleas Court, which court, on motion of the defendant company, dismissed the proceedings in Common Pleas Court for want of jurisdiction. This was decided in 1942 in 139 Oh St, 383.

At that time the Court applied §1465-90 GC as it was in 1925, that is, 111 Ohio Laws, 227.

The present case involves §1465-90 GC as it existed in 1947, which is practically the same as it was in 1937. (122 Ohio Laws, 278.)

The original order of the Commission, entered December, 1934, in the Crumpton case reads as follows:

“That claimant’s application for adjustment filed January 26, 1934, be dismissed, for the reason that he has not established the fact that he suffered any disability in excess of that for which he has previously been compensated by the employer for the injury in question.”

In other words, the Commission, on a purely non-jurisdictional ground, disallowed the claim, from which no appeal could be taken. However claimant then filed a motion or application for a rehearing which the Commission allowed.

Upon the rehearing the Commission again denied the claim and after overruling the company’s motion to dismiss, entered this order:

“* * *, upon rehearing, finds that claimant’s present disability is not the result of, nor connected with, the injury of June 14, 1929; that further compensation be denied.”

This order was a denial on a jurisdictional ground from which ordinarily appeal would lie then and now.

The court held, 139 Oh St, 383:

Syllabus:

“Where the Industrial Commission has disallowed a claim on a non-jurisdictional ground, but has, nevertheless, erroneously, granted a rehearing thereon and then denied compensation on a jurisdictional ground, the original order of disallowance is not vacated by the granting of such rehearing or by an appeal to the Common Pleas Court from the order issued after rehearing, and a motion to dismiss such appeal is properly sustained.” (Emphasis by the court.)

In the instant case now before this court, the original order entered by the Commission (Motion Exhibit 5) is as follows:

“That the claimant’s application for adjustment filed herein on August 24, 1948, wherein she alleges she has developed a cold and sinus conditiori as result of injury, be denied, for the reason medical proof of record fails to show she was disabled in excess of the period for which she had been previously compensated; there is no basis therefore for the payment of any further compensation.
“Further find the sinusitis and bronchitis was not due to or aggravated by the injury covered in the instant claim.”

In this court’s opinion the first paragraph of the order was probably a denial purely on a non-jurisdictional ground as in 139 Oh St 283. However the order goes further and contains the wording contained in the second paragraph as above. This part of the order is without doubt a denial or disallowance of the claim on a jurisdictional ground.

See §1465-90 GC found in 122 Ohio Laws at page 278 (1947),— “* * * that the claimant’s disability is not the result of the injury; * *

Thereafter, after the rehearing was ordered and had, the following order was made;

“That the Industrial Commission find from proof of record on rehearing that the claimant’s disability is not the result of an injury sustained in the course of and arising out of employment; that the claim be disallowed on rehearing.”

In 132 Oh St, 263, Humphries v. Wheeling Steel Corporation, the court ruled in Syllabus 3:

“Where the Industrial Commission finds that the present physical disability of claimant is not due to injuries received while in the course of employment, it thereby implies that it has no authority to and did not inquire into the extent of disability or into the amount of compensation to be awarded.”

See other cases cited in the opinion on this point decided by the Ohio Supreme Court.

In the instant case the Commission “Further find the sinusitis and bronchitis was not due to or aggravated by the injury covered in the instant claim.”

The Commission is presumed to have had in mind §1465-90 GC then applicable (122 Ohio Laws, at page 277) and the appealable ground therein, to-wit “that the claimant’s disability is not the result of the injury.”

It is to be presumed that the Commission was fully cognizant of Crumpton v. Goodrich Company, decided in 1942, 139 Oh St, 383.

Furthermore the Commission thereafter did grant the rehearing and denied the claim on the same jurisdictional ground.

The courts should liberally construe the Workmen’s Compensation Act and should not make a strained narrow interpretation thereof.

See Roma v. Industrial Commission, 97 Oh St 247 at 253 and discussion in 132 Oh St at page 267 (Humphries v. Steel Corporation). See also McManus v. Industrial Commission, 66 Oh Ap 14.

It is not improper to say that actually they are saying in the first part of the order practically what they said in the latter part.

This court believes that having denied the claim on jurisdictional grounds, it is immaterial whether or not they also denied the claim upon other grounds.

The motion of the defendant to dismiss the case for want of jurisdiction in this court is overruled with exceptions.

Journal entry may be drawn in accordance with this finding.


author: By PHILLIPS, J.

text:
    LYON, Admr., Plaintiff-Appellant, v. TORIELLO AND O’NEIL TORIELLO, d. b. a. DIAMANTE TORIELLO AND SON, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3533.
    Decided October 7, 1952.
    Morgan, Powers. & Cooper, Youngstown, for plaintiff-appellant.
    Harrington, Huxley & Smith, Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, J.

By consideration of the court of common pleas in September 1934 plaintiff’s decedent obtained a judgment against defendant-appellee O’Neill Toriello, in an action filed in that court on March 1, 1933, in which resident service was obtained upon defendant; and in which he answered generally denying the allegations of plaintiff’s petition, alleging contributory negligence, and not attacking service upon him.

On October 25, 1951, the court of common pleas issued an order reviving such judgment against defendant-appellee.

On November 8, 1951, defendant-appellee filed a motion to quash service of such order of revivor on the ground that defendant-appellee was a legal resident of California and a non-resident of Ohio.

Subsequently service was had by publication upon defendantappellee at his usual place of residence in Los Angeles, California.

On February 4, 1952, defendant-appellee filed a motion to quash service on him by publication for the reason that personal service had never been had on him in the original action.

The trial judge sustained the motion to quash filed on February 4, 1952, saying:—

“This day this cause comes on for hearing on motion to quash service by publication, on consideration thereof the court sustains same on authority of Kaufman v. Hughes, 24 Abs 385 and 143 Oh St 312; Exception to Plaintiff. (This is a good example of the operation of an antiquated code of procedure. The statute involved (§11646 GC) being enacted in the days when transportation was by a team and wagon; this ruling is not just; but the courts’ hands are tied by the legislative dead hand of the past.)”

Plaintiff appealed from the judgment of the trial court on the grounds “said court erred in sustaining the motion to quash service by publication filed by the defendant-appellee,” and for “other errors by which this appellant was denied due process of law.”

It is the contention of the plaintiff that the case of Sears v. Weimer, 143 Oh St 312, upon which the trial judge relied is distinguished from the case we review “in one respect only, and that is the original service was obtained by publication.”

“When either party to such dormant judgment or finding, his agent or attorney, makes affidavit showing that the adverse party is not a resident of the state, that such judgment or finding remains unsatisfied in whole or part and the amount owing thereon, service may be made by publication, as in other cases, but only for judgments or findings in which personal service originally was made on the adverse party.” Sec. 11646 GC.

“There is no substitute for personal service when personal service alone is required.” Sears v. Weimer, 143 Oh St 312 at 315.

“The term ‘personal service’ as used in §11646 GC, does not include the equivalent of personal service.” 24 Abs, 385, Kaufman v. Hughes.

As indicated by the factual statement of this opinion summons in the original case was made on O’Neill Toriello at his usual place of residence and not served personally upon him: Such service does not constitute personal service.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By MERRICK, J.

text:
    MELNYK, Plaintiff, v. MELNYK, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 459330.
    Decided August 20, 1952.
    Lester Okum, Cleveland, for plaintiff.
    Milton Firestone, William F. Waldeisen, Cleveland, for defendant.
   OPINION

By MERRICK, J.

A brief recital of facts is necessary to comprehend the legal question presented by a demurrer filed by plaintiff to defendant’s cross petition for alimony.

In the year 1937, plaintiff commenced an action and secured a decree for divorce. The jurisdiction of this Court was invoked by constructive publication service. Plaintiff claimed that defendant’s whereabouts was unknown and gave a last known address in the State of Michigan.

In the year 1951, defendant filed her cross petition in the same case, pleading facts upon which she bases a conclusion of gross neglect. One of these contentions is that in the year 1931 plaintiff abandoned her and their two children in the State of Michigan where she still resides.

Plaintiff’s demurrer is based upon two theories: — (1.) A failure to state a cause of action, and (2.) that the action was not brought within the time limited for the commencement of such actions.

This opinion will discuss these questions in the inverse order in which they are raised, for the reason that the second of the bases for the demurrer is the more easily resolved in favor of the sufficiency of the pleading.

The contention is made that §11632 GC provides that a judgment secured without service other than publication may be reopened within five years after rendition. The writer of this opinion is of the conclusion that defendant’s cross petition does not seek to reopen the judgment heretofore rendered. Not attacking the existing judgment, the action does not come within the purview of this section of the code.

The cross petition prays for a judgment which the Court could have entered at the time of trial, providing there had been, at that time, a service upon the plaintiff of the presently presented pleading. Does a delay of 15 years in such filing preclude the defendant’s right to be heard? Any claim of laches should remain for disposition by the trial court and cannot be disposed of before a joining of the issues.

The question raised in ground one of the demurrer presents an interesting question, for the reason that the situation does not often arise after such a long time has elapsed between the time of the divorce and the attempt to secure a judgment for alimony.

It may definitely be stated that there can be no adjudication in personam of the question of alimony where there is no jurisdiction of the person of one of the parties. Woolford v. Woolford, 28 O. N. P. (ns) 127. A good statement of the law is found on page 128 of the opinion in this case and adopted for the purposes of this opinion, as follows-

“It has been well recognized in the State of Ohio that, even though a decree for a divorce may bp had by constructive service, an award for alimony may not be so obtained; neither can a wife be barred of her interests in her husband’s property or her right to assert her claim for alimony through a proceeding by constructive service. Even though the divorce may be granted on such service, she may later assert her claim for alimony in a proper proceeding. * * * Though §11631 GC may provide a remedy for reaching such a situation, it is not all-inclusive, nor does it exclude other remedies. Such a purported judgment could be attacked by motion either directly or collaterally.”

An analysis of the cases will disclose the fact that courts have always clearly distinguished the reviewable nature of a judgment in a divorce proceeding respecting property interests from the finality of the divorce; and that they have gone beyond this, in certain cases and, in furtherance of justice, to declare that the wife may maintain an action for alimony as “wife” although by reason of a previous dissolution by a decree of divorce the matrimonial relation no longer exists. Through all these cases there runs, clearly marked and broadly stated, the doctrine that the decree of divorce is immutable, yet the judgment as to property rights is not conclusive unless both parties had their day in court. Bay v. Bay, 85 Oh St 426; Wick v. Wick, 58 Oh Ap 77.

There is one reported case in which this rule was not adhered to, for the reason that the defendant who was constructively served was the owner of two parcels of real estate in the county in which the action was commenced and that no step had been taken to subject the real estate to the jurisdiction of the court for alimony purposes. In that case the action was commenced 24 years after the divorce. Under these conditions the trial court refused to entertain the complaint and was sustained by the Supreme Court. Morgan v. Wakelin, 24 O. C. C. R. (ns) 68, affirmed without opinion 72 Oh St 656. It is fair to surmise that the peculiar circumstances of the case caused the courts to make it an exception to the rule.

In the case of Weidman v. Weidman, 57 Oh St 101 at page 103 of the per curiam opinion of the court is found this language-

“In cases in which there is no jurisdiction of the person of one of the parties, there can be no adjudication in personam of the question of alimony; and therefore in such cases, while the divorce may be valid, the question of alimony remains unadjudieated, and the wife may, under proper circumstances, maintain an action for alimony.”

For many years there were various interpretations placed upon the full faith and credit clause of the U. S. Constitution so far as it applies to divorce cases but the doubt was finally resolved and practically dispelled in the case of Williams v. North Carolina (1942), 317 U. S., 287. Under this decision the decree of divorce granted to one who is at the time bona fide domiciled therein, rendered in a proceeding complying with due process, if valid under the laws of that state, is binding upon the courts of other states. This applies only to the decree of divorce and has no affect upon the alimony or property rights of the parties or their rights to adjudicate them in a proper tribunal. Slapp v. Slapp, 73 Oh Ap 444.

The rule announced need be amplified but little to provide that, after the granting of a foreign divorce decree to a husband, the right of the wife to alimony as an incident to a divorce because of the husband’s aggression remains until adjudicated, although the court is precluded' from granting a divorce to the wife by reason of the previously procured foreign divorce granted to the husband. Slapp v. Slapp, supra.

Long before the Supreme Court of the United States had resolved this question, Ohio courts had determined the public policy of this state to be that where one state had jurisdiction over one of the parties and undertook to dissolve the marriage, this state would recognize the power of such other state to so dissolve it, but while a decree of divorce so rendered would be recognized because of public policy, the state rendering it would not be permitted to project its jurisdiction into this state by constructive service and thereby affect property rights arising in Ohio by operation of Ohio Law. Snyder v. Buckeye B & L Ass’n., 26 Oh Ap 175. This same reasoning was adhered to in Doerr v. Forsythe, 50 Oh St 726; McGill v. Deming, 44 Oh St 645, and in Woods v. Waddle, 44 Oh St 449.

There is no distinction as to the effect of a decree rendered in a foreign forum from that rendered in a domestic forum when the party was served by publication only and had no knowledge of the proceedings. Stephenson v. Stephenson, 54 Oh Ap 239.

As long ago as in the case of Cox v. Cox, 19 Oh St 502, the Supreme Court has pronounced decisively on this question by holding that a decree of divorce in an ex parte proceeding cannot defeat the right of the petitioner to the alimony which the statute intended to provide for her. Down through the years there has been no material modification of this rule.

The demurrer is overruled and the plaintiff may plead under rule of court.


author: By FESS, J:

text:
    HURT, Plaintiff-Appellant, v. ROGERS TRANSPORTATION COMPANY, Defendant-Appellant, FORD MOTOR COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22283.
    Decided May 7, 1952.

      Harrison, Spangenburg & Hull, Cleveland, for plaintiff-appellant.
    McConnell, Blackmore, Cory & Burke, S. Burns Weston, Cleveland, for defendant-appellant.
    Arter, Hadden, Wykoff & VanDuzer, R. Crawford Morris, L. B. Davenport, Cleveland, for defendant-appellee.
    (FESS, PJ, CONN, J, SAVORD, J, of the 6th District sitting by designation.!
   OPINION

By FESS, J:

Plaintiff appeals on questions of law from a judgment on behalf of the defendant, Ford Motor Company, entered by the court notwithstanding a verdict on behalf of the plaintiff. Defendant, Rogers Transportation Company, undertakes an appeal on questions of law from a judgment entered upon a verdict in favor of the plaintiff, and assigns as error, (1) the failure of the court to grant the motion of the defendant at the conclusion of all the evidence to direct a verdict in favor of the defendant, and (2) in failing to grant the motion of the defendant for judgment notwithstanding the verdict. Defendant, Rogers, also filed a motion for new trial, which remains undetermined pending this appeal.

The judicial system of Ohio is grounded upon the established principle referred to as a dogma of one trial and one review. The modern tendency of appellate procedure, by statute as well as by judicial decision, is to facilitate the final settlement and determination of litigation. To permit a party to take an appeal from an order overruling a motion for a directed verdict or a motion for judgment notwithstanding the verdict, pending the determination of a motion for new trial, affords such party two reviews of the same trial and indefinitely prolongs the final determination of the litigation. For example, in the instant case, if the judgment of the trial court be affirmed, the cause must be remanded to that court for further proceedings. The first step in such proceedings will be the determination of the motion for a new trial. If granted, a second trial will take place, from which a further appeal without doubt will properly be had. If its motion be overruled, the defendant will again take a second appeal requiring a second review of the same record of some 1300 pages, to determine whether prejudicial error had intervened at the trial. In a case where the motion to direct a verdict or the motion for judgment notwithstanding the verdict is overruled and also a motion for a new trial is granted, no particular criticism can be directed toward allowing an appeal from the overruling of the motions. But when an appeal is taken from orders overruling a motion for a directed verdict or a motion for judgment notwithstanding, pending the determination of a motion for new trial, the judgment from which essentially the appeal is taken does not have the finality which is present if the motion for new trial be overruled. The latter permits the defeated party at his election to appeal from the judgment and in one review have his right to final judgment as a matter of law, or his right to a new trial, determined upon one review.

One can readily appreciate that a defeated litigant would prefer to have his asserted right to judgment as a matter of law determined without the influence of errors incident to the trial which would warrant reversal and a new trial rather than final judgment. But any benefit thus obtained by the appellant is outweighed by the detriment to the appellee as well as the courts in prolonging the litigation. The opinion in Michigan-Ohio-Indiana Coal Assoc. v. Nigh, 131 Oh St 405, says that the defendant has an anchor to the windward: he has two strings to his bow.

With all due respect to Judge Jones, the simile would be more apt if it recognized that the “second stringer” should run with the “first stringer.” We are also encouraged to suggest that the order from which Rogers takes its appeal is not final by certain expression in the opinion in Green v. Acacia Ins. Co., 156 Oh St. 1.

Furthermore, attention is directed to the fact that no journal entry appears with respect to the overruling of the motion for direction of a verdict, although the action is revealed in the bill of exceptions.

It is therefore concluded that the order from which the appeal of Rogers is taken is not a judgment or final order within the meaning of the term as used in Section 6 of Article IV of the Constitution and the appeal is dismissed sua sponte.

We reiterate that upon this appeal we may not determine whether any error prejudicial to the defendant occurred at the trial or whether the verdict is manifestly against' the weight of the evidence.

With respect to the appeal of plaintiff from the order granting Ford’s motion for judgment notwithstanding the verdict, necessarily some comment is made with respect to the evidence as it relates to the conduct of Rogers as well as Ford.

The evidence discloses that on August 20, 1948, while driving his passenger car in an easterly direction on Highway No. 2 beyond the city limits of Toledo, the plaintiff was seriously injured by a steel forging (herein sometimes referred to as Exhibit D) which, came through the windshield of his automobile without warning and with great force struck that portion of his face surrounding his left eye. The evidence is uncontradicted that the forging struck plaintiff with such force as to render him unconscious and to permanently and severely injure him. He had no knowledge nor recollection of what hit him. Exhibit D was shaped like a doughnut, 4 inches in diameter with a large hole in the center, 1-V2 inches in height and weighed 2-% pounds. There is substantially credible evidence that the forging was made at the Ford plant in Canton, Ohio, was loaded in Canton with a number of similar forgings in a large crate called a “pallet box” upon the flat-bottom, four-wheel trailer of the defendant Rogers on the morning of the date of the accident. The Rogers outfit consisted of three units: — a tractor, a semitrailer or tandem attached to the fifth wheel of the tractor, and a four-wheel flat-bottomed trailer attached to the tandem. Twelve large pallets, containing Ford parts, were placed by Ford on the outfit, with supervision as to the placing of the crates for balanced weight by Rogers. The pallet boxes weighed from 210 to 255 pounds apiece and were about 51 inches square, made of 3/4 to 1 inch rough lumber, solid bottoms, bolted in two places at each corner, with 3 to 4 inch wide skids under the bottom to accommodate the fork of the lifting crane. The sides were comprised of 3/4 to 1 inch thick boards of varying width, with spaces likewise varying in width between the boards. The boxes were 30 inches high with inside depth of 24 inches.

Four different types of forgings were included in the shipment. Two boxes were loaded at the front of the tandem immediately behind the tractor cab and four boxes toward the rear of the tandem. The six boxes contained an aggregate of 3945 forgings weighing net 27,133 and gross (including the crates) 28,498 pounds. 1349 forgings weighed 11 pounds each; 944 weighed 5-Vz pounds each; and 1652 pieces weighed 3.8 pounds each.

Six crates held and bound together with metal strip binders, were loaded three on top of three on the central portion of the four-wheel trailer and secured to the trailer by chains. These six boxes contained an aggregate of 4968 forgings weighing net 24,451 pounds and gross with crates 25,801 pounds. One box contained 326 forgings weighing 11 pounds each; 2216 forgings weighing 5-Vz pounds each were in three boxes; and 1437 forgings weighing 4 pounds each were in the fifth box. In the sixth box were 989 forgings weighing 2-Vz pounds each, similar to the piece of metal (Exhibit D) which struck the plaintiff. The crate itself weighed 233 pounds and the net weight was 2496 pounds and the gross weight was 2719 pounds.

Roger’s driver was unable to recall whether the sixth box was placed on top of the lower three boxes between the upper three or whether it was rear box over the three boxes on the bottom tier.

Enroute from Canton to Detroit, Rogers’ driver did not follow the usual route to Toledo over Route No. 20 via Nor-walk and Fremont, but in order to avoid the highway weighing scales on Route 20 proceeded northwest from Canton to the Lake Route 2, via Akron, Elyria, Lorain, Huron, San-dusky and Port Clinton. Near Huron, the driver noticed forgings bouncing off the road. He stopped at Red Gables near Sandusky and discovered a broken box on the tandem, which contained heavier forgings. He had observed the smaller forgings working out between the slats of the boxes on the trailer before reaching Red Gables. And at this stop he picked objects out from between the slats of a box on the trailer similar to Exhibit D. At Red Gables, the driver found that the bottom of the top box on the rear of the tandem had loosened, causing its load to sift down into the lower box. He took one of the large steel forgings from its box on the front of the tandem, went to the trailer and knocked oft one of the top boards of the middle box on the upper tier. Ford contends it was this box and only this box that contained forgings similar to Exhibit D. However, the driver was unable to say whether parts exactly similar to Exhibit D were contained in the middle or rear box. The driver also knocked another board from a box on the tandem and with a spare board which he carried, repaired the defective box on the tandem. It is Ford’s contention that from the evidence it may be inferred that Exhibit D bounced out and over the top of the box from which the driver removed the board rather than that it escaped between the slats between the boards.

Inside Toledo at Navarre Park, Rogers’ driver again stopped and again checked his load. His testimony as to whether at this point he found any loose metal on the bed of the four-wheeler is contradictory. He first testified that the loose pieces were only on the tandem. Under the guise of refreshing his recollection, plaintiff was permitted to cross-examine the driver, who was plaintiff’s witness, concerning statements in his deposition, and he admitted finding loose pieces on the trailer. That there were loose pieces on the trailer after the accident is corroborated by two other witnesses.

Since there were no eye-witnesses to the impact of the steel forging with plaintiff’s car, this feature of plaintiff’s case is supported almost exclusively by circumstantial evidence. Naturally, much to-do is made of inferences upon inferences by Rogers, in which Ford enthusiastically concurs.

It is comparatively simple to understand the principle of no inference upon an inference as demonstrated in Sobolovitz v. Lubric Oil Co., 107 Oh St 204, but one of the most misunderstood and often inaccurately applied doctrines of the law is that which purports to preclude the basing of a presumption on a presumption, or an inference upon an inference. 95 A. L. R. 162. Even in the Sobolovitz case there was some evidence tending to negative the fact that the truck was operated at the time and place upon the defendant’s business. In Gedra v. Dallmer Co., 153 Oh St 258, in entering final judgment, the court held:

“In such an action, if the cause of an injury to a plaintiff may be as reasonably attributed to an act for which defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant.”

We concur in the opinion in Hall v. Ferro-Concrete Const. Co., 71 Oh Ap 545, quoting 20 Amer. Juris. 169, that when the court seeks to apply the rule forbidding the basing of one inference upon another, what is meant is that an inference can not be based upon evidence that is too uncertain or speculative or which raises merely a conjecture or possibility. See also, par. 6, syllabus in Boles v. Montgomery Ward Co., 153 Oh St 381. The second paragraph of the syllabus in the Gedra case further clarifies the rule as follows:

“In a negligence action, it is not sufficient for plaintiff to prove that the negligence of defendant might have caused an injury to plaintiff, but, if the injury complained of might well have resulted from any one of several causes, it is incumbent upon plaintiff to produce evidence which will exclude the effectiveness of those causes for which defendant is not legally responsible.”

Attempting to correlate and restate the basis of the rule, it may be said that if the cause of the injury may be as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, it is incumbent upon the plaintiff to produce evidence which will exclude the effectiveness of the cause or causes for which defendant is not liable.

As stated in Rogers’ brief, the basic issue is whether or not the forging, that went through the windshield of plaintiff’s car, came from a truck operated by one Carr, its driver, on the business of Rogers.

Rogers poses these questions:

1. Was it a Rogers’ truck driven by Carr that passed Hurt at the time of the accident, and if so, was Rogers negligent at said time and place?

2. Assuming it was a Rogers’ truck, was the forging part of the cargo and was it lost from the truck due to negligence of Rogers?

Rogers contends that there is no direct proof and that it is possible to reach an affirmative answer to these questions only by a series of inferences built upon one another.

As to the first question, admittedly many trucking units passed the scene of the accident on the afternoon in question. Neither the time of the accident nor the time Rogers’ outfit passed the scene is fixed with exactitude. There is credible evidence from which it may be reasonably inferred that the accident occurred from 4 to 4:15 P. M. There is also credible evidence from which it may be reasonably inferred that the Rogers’ outfit passed the scene some time after the accident. On the other hand, there is some evidence from which reasonable minds could infer that it was the Rogers’ outfit which passed plaintiff’s car.

We are inclined to agree with Rogers with respect to plaintiff’s witness, Richardson, that “never did a witness with a fleeting glimpse (of Roger’s outfit) ever see so much in so little time.” But there it is, and upon this appeal we may not disregard it nor consider its weight. The only witnesses who saw a truck as it passed plaintiff were two men testifying for defendants who were driving 150 feet behind plaintiff, saw him go off the road, graze a telephone pole and stop in the field. They describe a tandem trailer with “stake” sides and that the outfit they saw did not have the appearance of the outfit shown in a picture of the Rogers’ outfit. Since they testified from recollection after a lapse of two years, the jury might disbelieve their description of the truck they saw at the accident.

One of plaintiff’s witnesses identified a Rogers’ outfit three miles west of the accident. Another witness also saw a truck with some castings loose near its rear some two or three miles west of the scene of the accident. Neither witness could identify Carr as the driver of the outfit they saw. But there is direct evidence that Carr was the driver of the Rogers’ outfit and there is no evidence tending to show that any other truck carried parts similar to Exhibit D past the scene at or near the time of the accident.

Upon a time factor in a case of this character, it is not incumbent upon a party to prove the time of an event with split second accuracy. Witnesses are not expected to testify with precision and accuracy with respect to the time an event occurs. If the evidence be such that reasonable minds may infer that a party was present at the time of the event, even though such evidence is in conflict, it is suffipient to submit the issue to the jury for determination. The same observation is made with respect to the identification of the passing truck as leased by Rogers.

Rogers asserts that there must be four inferences, each drawn upon the other, to establish that Exhibit D was part of its driver’s cargo:

1. That there was no direct proof that Exhibit D was at Canton-Ford on August 20, 1948. It must be inferred.

2. There is no direct proof that if Exhibit D was at Canton-Ford it was put on Rogers’ trucking outfit. Again this must be inferred and is possible only if the first inference was made.

But the answer to these assertions is that 989 pieces exactly similar to Exhibit D were loaded on Rogers’ truck at Canton and transported to Detroit via Route No. 2. The record is devoid of any evidence that any similar parts were transported by any other haulers on the day in question. The possibility or probability that Exhibit D came from another source is therefore reasonably excluded.

3. Assuming the first two inferences, there is no direct proof that Exhibit D came from Rogers’ truck, which presupposes a third inference upon an inference.

But again this so-called third inference may be drawn directly from the direct testimony that 989 similar pieces were loaded and transported on the Rogers’ truck and that the driver saw parts bouncing off the road.

4. With the three inferences established, a fourth inference is required to reach the conclusion that Rogers was negligent.

But again this so-called fourth inference is drawn upon the direct testimony that pieces similar to Exhibit D were on the Rogers’ outfit, and under the doctrine of res ipsa loquitur it is not incumbent on plaintiff to prove negligence by direct testimony. In the absence of any evidence that other haulers were engaged at the time and place in transporting similar parts, reasonable minds could well draw the inference upon the evidence that Rogers carried similar parts, that Exhibit D came from the Rogers load.

There is direct testimony that forgings identical with the one which struck plaintiff were made by Ford, loaded on the four wheel trailer of Rogers and were lying loose on the bed of the trailer prior to and after the accident. The direct evidence did not identify the particular type of forgings lying upon the trailer, but they were not the heavier forgings and were similar in type to the one which struck plaintiff. Rogers’ driver saw pieces working out between the slats of the pallet boxes on the four-wheeler before he reached Sandusky.

Sec. 6307-103 GC, reads as follows:

“No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom except that sand or other substance may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway.”

Rogers contends that the statute does not apply in the absence of evidence that the truck was improperly constructed or loaded, and seeks to limit the application of the statute to the bulk of the load as distinguished from the separate pieces loaded, seeks to avoid liability by reason of the fact that the shipment as a whole was properly loaded and to shift the liability to Ford on account of defective boxes which permitted the smaller parts to slip out between the slats. Such narrow construction of the statute is untenable. The vehicle must be so constructed and loaded as to prevent any of its load from escaping therefrom. Furthermore, the doctrine of res ipsa loquitur applies in a case such as this where (a) the instrumentality causing injury was under the exclusive control of the defendant, and (b) the accident occurred under circumstances that in the ordinary course of events would not have occurred if ordinary care had been observed. The doctrine permits the jury but not the court to draw an inference of negliggence. The rule, however, does not apply to Ford.

Rogers also contends that the truck which passed plaintiff could have been one of many others, some of which may have been carrying forgings and other possibilities (which Rogers refers to as probabilities) such as that the forging could have been picked up from the roadway between the two dual tires and that a bump in the road would jar it loose with such force as to hurl it through plaintiff’s windshield; that the Rogers truck seen by Richardson could have belonged to another Rogers Company located in Texas. But admitting such possibilities, they were matters to be considered by the jury. Reasonable minds could well exclude these possibilities in the face of evidence that Exhibit D was made by Ford, a box of parts similar to Exhibit D was transported by Rogers’ truck, which was identified as passing the scene of the accident approximately at the time it occurred, that parts carried on its journey were seen to drop into the highway and loose parts were seen on the trailer. In our opinion, the state of the evidence is such that reasonable minds could conclude that the forging came from the Rogers outfit.

Ford’s position may be summarized as follows:

1. Rogers, the common carrier, had exclusive possession and control of the load throughout the journey — and sole responsibility therefor. Rogers is solely liable for its wilful alteration of the pallet boxes, solely responsible for its negligence and solely liable for its violation of §6307-103 GC.

2. Whether or not there was sufficient evidence to go to the jury against Rogers, the evidence under no circumstances reached a jury-question level against Ford “warranting exposure of Ford to the inevitable speculation of the jury.”

We go along with the contention that Rogers had exclusive possession and control of the shipment throughout the journey and the sole responsibility for its transportation.

But the evidence shows that Ford packed the forgings in the boxes and was made aware that the smaller forgings could and did slip through the slats. Ford also loaded the boxes on the tandem and trailer. Such loading, that is, the placing of the boxes, was supervised by Rogers. Since the section is directed against driving or moving the vehicle so constructed or loaded, Ford can not be charged with violation of the statute except possibly as an aider and abettor of the violation. Ford, as a reasonably prudent person, could have well apprehended that if the forgings got out onto the bed of the truck they could bounce into the highway and thereby constitute a hazard to the travelling public.

Ford also asserts that Rogers as a common carrier was under the obligation to transport the load over the highways in a careful and lawful manner, and to insure safe transportation of the freight, and its failure- to carry the shipment safely exonerates the shipper, particularly in view of Rogers’ wilful alteration of its pallet boxes, which superseded any negligence on the part of Ford. But unless the act of Rogers in altering the boxes was the efficient, proximate cause of plaintiff’s injury, such act was immaterial in removing any negligence on the part of Ford in furnishing boxes from which the forgings could escape.

We now proceed to Ford’s second contention — failure of proof presenting a question for the jury.

Rogers’ driver identified the forging which hit plaintiff as similar to the heavy forging which fell from the tandem and injured his foot, but he also said he saw round forgings, about 4 inches in diameter, weighing three to four pounds, bouncing on the road. He also said that at his stop at Navarre Park in Toledo he picked up and replaced in the boxes similar pieces to the one which injured plaintiff. His testimony is confused and contradictory in many particulars but for the purpose of this appeal those favorable to the plaintiff are determinative of the presence of a jury question. Theater Co. v. Lautermilch, 118 Oh St 167.

Ford also asserts that there is no evidence to show that the particular box in which parts similar to Exhibit D were placed was so constructed as to permit the parts to slip through the spaces between the sideboards; that neither the sideboards nor the spaces between were uniform, and that it was incumbent upon plaintiff to prove that Exhibit D slipped out between the slats of the particular box. But there is direct evidence that the smaller flat parts, including those similar to Exhibit D, did slip out not' only on the occasion of this particular trip but on other trips, and that Rogers’ driver had so advised an employe of Ford engaged in loading the outfits.

Ford also stresses the fact that the Ford boxes, when they left Canton, were new and in good order and when the driver repaired the box on the tandem the six boxes on the tractor were all intact. Ford argues that from Red Gables on, the Ford boxes ceased to exist and were replaced by Rogers’ reconstructed boxes, one of which was a home-made box, the repaired box, and two others of which were boxes with a sideboard 6 to 8 inches in width knocked off by the driver. Quite naturally, the driver was unable to recall whether this sideboard was removed from the box containing parts similar to Exhibit D, but Ford proceeds to argue upon the assumption that it was removed from this particular box which it denominates a Rogers’ box and demonstrates that this box “a little less than half full” would reach within 3 or 4 inches of the 9-inch open gap left by the torn out sideboard plus the former space between the boards.

Although the driver said he did not think that with the board off at the box there was any way in which the parts could get over the side of the box from which the board was removed, Ford states that the forgings could easily bounce through 3 or 4 inches while being jolted over the rough road at high speed. One of plaintiff’s witnesses said that he saw loose forgings on the bed of the trailer bouncing 3 or 4 inches. There was no evidence that any of the forgings on the load bounced out of the top of the boxes.

Ford’s principal contention is that the evidence does not disclose with reasonable probability whether Exhibit D bounced out of the box or whether it slipped between the spaces of the sideboards. If from the evidence reasonable minds could infer that Exhibit D bounced out of the box or whether it slipped between the spaces of the sideboards. If, from the evidence, reasonable minds could infer that Exhibit D bounced through the open space, certainly in the face of the evidence that parts similar to Exhibit D could and did slip out between the sideboards, reasonable minds could more readily infer the latter. The Supreme Court has recently held that if the cause of an injury may be as reasonably attributed to an act for which a defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant. Gedra v. Dallmer Co., 153 Oh St 258. This does not mean, however, that if there are other possibilities, or even other probabilities, plaintiff can not recover. It is only when the evidence is such that the cause may be as reasonably attributed to non-liability or liability does the rule apply. In the instant case, the box from which the sideboard was taken is not identified and the evidence is in conflict as to whether the parts would jounce out of the box. In appraising the evidence, that upon which Ford relies is a possibility and that tending to support plaintiff’s theory is such that reasonable minds could infer that Exhibit D slipped out between the sideboards and was a proximate cause of plaintiff’s injury.

In the instant case there is more than a scintilla of evidence to tag the “rat” as to its origin. Cf. Gedra v. Dallmer, supra, p. 265. A mere choice of probabilities is not presented, Gerich v. Republic Steel Corp., 153 Oh St 463, 468, or two separate and independent probable causes either of which may have been the efficient cause. Franklin v. Skelly Oil Co. 141 Fed. 568, because the evidence that the part slipped between the boards presents a reasonable probability while that to the contrary presents a possibility.

As heretofore indicated, we are not impressed with the contention that Exhibit D might have been on the highway for some time and was picked up between the dual tires and dislodged by a bump in the road. This also presents a conjectural possibility for the jury to consider.

A number of other contentions are raised by Rogers as well as Ford, to support their claim that by reason of the failure of proof, judgment should be entered for each defendant as a matter of law, but until the Supreme Court shall further clarify Gedra v. Dallmer, supra, and Goodrich v. Republic Steel Corp., supra, we conclude that as against Rogers, as well as Ford, there was some evidence to support each essential issue of plaintiff’s claim.

The appeal of Rogers is dismissed and the judgment upon the verdict in favor of Ford is reversed, and the cause is remanded to the common pleas court with directions to enter judgment on the verdict against Ford without prejudice to the right of Ford to re-file its motion for a new trial.

CONN, J, SAVORD, J, concur.

      . “Ne totally to grounde you upon the said Queene doings, but to have 2 strings to your bowe, specially when the cone is wrought with a woman’s fingers. Wolsey v. St. Papers Hen. VIII, IV, 103. A second string imports a second resource available if the first should fail, such as a second string horse or athlete.” Oxford English Dictionary.

      . In the opinion, Stewart, J., says:
      “The fact of entering judgment before the filing and consideration of a motion for a new trial does not constitute such a judgment as a final order, for the reason that the trial judge still has control of the judgment until either no motion for a new trial has been filed within the designated time or the court has passed upon such a motion.
      “By the same line of reasoning, the trial court in the present case had control of the judgment on the verdict until it passed upon the motion for a new trial, and since the granting of a new trial was not erroneous, there being no abuse of discretion upon the part of the court, there is no final order, for the plaintiff has the right to a retrial of the case in the same court and might well obtain a judgment against defendant.”
      In his dissent, Judge Hart makes this significant comment:
      “A judgment or decree to be final’ for the purposes of an appeal must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance in the appellate court, the court below would have nothing to do but execute the judgment or decree it had already entered. Dainese v. Kendell, 119 U. S. 53, 30 L. Ed. 305, 78 S. Ct. 65. A judgment or decree is final which disposes of the whole merits of the case and leaves nothing for the further consideration of the court. Kelley v. Stanbery, 13 O. 408; Teaff v. Hewit, 1 Oh St 511; Cinn. Sandusky & Cleve. R. R. v. Sloan, 31 Oh St 1.”

      . Plaintiff contends that Rogers suppressed evidence which Rogers vigorously denies, but such contentions of course have no bearing upon the merits of the controversy. A similar observation may be made with respect to plaintiff’s claim that Rogers criminally overloaded its vehicle.

      . Rogers’ driver was obviously not a hostile witness but on this appeal we are not concerned with the propriety of permitting a party to cross-examine his own witness under the guise of refreshing his recollection.

      . The alacrity with which Ford adopts Rogers’ argument in Ford’s favor, and rushes to embrace plaintiff’s argument tending to shift liability to Rogers, presents a legalistic straddle mirabile dietu. Rogers, in turn, attempts to shift responsibility to Ford. Plaintiff is content and like the Cheshire cat, comfortably basks in the fire engendered by this controversy between defendants.

      . We do not agree with plaintiff’s or Ford’s contention that the high degree of care imposed upon a common carrier had any bearing on the duty owing plaintiff incident to the transportation. The writer of this opinion indulges a chuckle with regard to plaintiff’s adoption of Ford’s sophistry regarding Rogers’ alleged common carrier liability.

      . Ford’s reference to the removal of a 6 or 8 inch sideboard leaving 8 inches plus a 1-inch space or 9 inches in its computation is argumentively excusable. There is a lot of argument in the briefs over the dimensions of the boxes and the location of the parts with respect to the top of the boxes with the sideboard removed. Plaintiff, for example, contends that the evidence discloses that the parts were 8 or 9 inches below the open space. Obviously this was a question for the jury.


author: By BELL, J.

text:
    STRAWSER, Plaintiff, v. STANTON et, Defendants.
    Common Pleas Court, Madison County.
    No. 19338.
    Decided February 15, 1952.
    John M. Scott, Columbus, John R. Schickler, Columbus, for plaintiff.
    William S. Culp, West Jefferson, for defendants.
   OPINION

By BELL, J.

This matter came on to be heard on the defendant’s motion to quash service of summons herein and to dismiss plaintiff’s petition. The question was submitted upon the memorandá of counsel.

The pertinent facts involved are as follows: Cassie Stanton died intestate on the 12th day of February, 1946, seized oí the real estate described in plaintiff’s petition. On July 1, 1946, Lawrence Stanton was appointed Administrator of her Estate by the Probate Court of Madison County and appraisers were appointed. On August 31, 1951, an inventory of the estate was filed, which inventory was approved on October 3, 1951. Prior to the approval of the inventory, on September 4, 1951, Lawrence Stanton, as surviving spouse, filed his petition in the Probate Court to purchase the mansion house at the appraised value under §10509-89 GC, describing in his petition the same land described in the petition of the plaintiff herein. Summons was had in the action in the Probate Court and the plaintiff herein has answered in that action.

Under these facts, does this Court have jurisdiction to entertain an action in partition?

The third syllabus in the case of Hatch, Exr., v. Tipton, 131 Oh St 364, reads as follows:

“Where an action in partition has been instituted following the death of a co-owner, and subsequent thereto the Executor or Administrator of such deceased co-owner institutes land sale proceedings under §10510-10 GC, the latter supercedes and prevails over the former.”

A fortiori, a suit to sell to pay debts filed prior to an action in partition will prevent the Common Pleas Court from taking jurisdiction in partition.

It is contended by counsel for defendants that a suit by the surviving spouse to purchase the mansion house has the same effect as a suit to sell to pay debts.

The court in the Hatch case, supra, said:

“A right which is not absolute but is dependent for its existence upon the action or inaction of another is not basic or vested, and deprivation thereof does not constitute a deprivation of property. A legislative enactment which interferes with or modifies the right to partition does not invade property rights and is not in derogation of the constitutional provision against deprivation of property without due process of law.”

Sec. 10509-89 GC creates an absolute right in the surviving spouse to purchase certain property. This right modifies or interferes with the right to partition, and it is the opinion of this Court that the exercise of this right by the surviving spouse deprives this Court of any jurisdiction in partition. Surely it can not be said that if the surviving spouse properly elects to exercise the absolute right given him by §10509-89 GC this Court could proceed to partition that same property he has elected to purchase.

The editor of Page’s Code has this comment to make in the annotation following §10509-89 GC:

“If the spouse elects to take the property according to the provisions of the statute, the heirs are divested of all title. If the spouse does not, then title in the heirs becomes absolute.”

Plaintiff contends that the right of the surviving spouse cannot bereeognized because it was not timely exercised; that since it was not exercised within sixty days after the appointment of an Administrator the right no longer exists. The Court assumes that this contention is based on a requirement of the Probate Code concerning the time of filing an inventory. Sec. 10509-89 GC requires that the election to purchase be made at any time within one month from the approval of the inventory. The election was made prior to the approval of the inventory and so satisfies that requirement of the statute. If the inventory was not filed within the time it should have been filed, plaintiff’s remedy was in the Probate Court, either to require the filing of an inventory or to object thereto when filed. Failure of the- Administrator to act promptly, if he did so fail, can not be taken advantage of in this Court by means of a partition action.

Counsel for plaintiff has cited the case of In re Estate of Burgoon, 80 Oh Ap 465, for the proposition that land other than that actually used as a mansion house can not be purchased at the appraised value by the surviving spouse. And it is true that the case is proper authority for that proposition, but it is also illustrative of the proposition that a suit by the surviving spouse to purchase the mansion house filed after a partition suit will oust the Common Pleas Court of its jurisdiction in partition, at least to the extent of the property properly included in the election to purchase. The descriptions in the two petitions involved here are identical. They are of a small tract, six acres, in the center of which is situated the house in which the decedent and her family resided. If the land sought to be purchased by the surviving spouse is in excess of that to which he is entitled plaintiff may object in the Probate Court and that is a question to be decided by that court.

Our Second District Court of Appeals in the case of Shively v. Shively, 88 Oh Ap 7, at page 17, said:

“The jurisdiction of the court first acquiring control over the subject of the litigation will be required to yield to a second action only where the court in the second action has the power to grant all the relief asked in the first suit and some additional remedy, in which its jurisdiction is found to be more adequate and complete.” (Emphasis added.)

This Court does not have the power to grant all the relief asked for in the first suit. It has no power to set off to the surviving spouse the property which he is permitted to elect to take at the appraised value. Furthermore, the partitioning of this property by this Court would deprive the Probate Court of its jurisdiction over all the assets of this estate. And this Court has no power to set off a year’s allowance, determine administrator’s or attorney’s compensation, determine inheritance tax, or any of the other matters incident to the administration of a decedent’s estate.

It is the opinion of this Court that the suit in the Probate Court deprives the Common Pleas Court of its power to take jurisdiction over the subject matter set up in plaintiff’s petition, and that defendants’ motion should be sustained and plaintiff’s petition dismissed.

Counsel for defendants may prepare an entry accordingly, noting plaintiff’s exceptions, and submit the same to counsel for plaintiff and to the Court for approval.


author: By THE COURT:

text:
    STRAWSER, Plaintiff-Appellant, v. STANTON et, Defendants-Appellees.
    Ohio Appeals, Second District, Madison County.
    No. 184.
    Decided May 29, 1952.
    John M. Scott, John R. Schickler, Columbus, for plaintiff-appellant, contra the motion.
    William S. Culp, West Jefferson, for defendants-appellees, for the motion.
   OPINION

By THE COURT:

Submitted on a motion to dismiss the appeal because

(1) No Bill of exceptions in this case has been filed in the trial court within forty (40) days after the entry of the final order appealed from, contrary to §11564 GC.

(2) Appellant has failed to file with the Clerk of the Court of Appeals his assignments of error, three copies of briefs with proof of service on adverse counsel and Bill of Exceptions, within fifty (50 days of filing of notice of appeal, contrary to the requirements of Rule Seven (7) of the rules of the Court of Appeals.

The judgment was entered in the Common Pleas Court on March 12, 1952. The notice of appeal on questions of law was filed on March 12, 1952. No bill of exceptions has been filed in the Common Pleas Court or in our Court, and no briefs or assignments of error have been filed in this Court by appellant.

It may be that the errors to be assigned would not require a bill of exceptions to exemplify them. But, in any event. Rule VII has not been followed.

The motion to dismiss the appeal will be sustained as to the second branch thereof.

HORNBECK, PJ, WISEMAN & MILLER, JJ, concur.


author: By BADER, J.

text:
    GINN v. TRIPPETT et al.
    Common Pleas Court, Hamilton County.
    No. A-132722.
    Decided October 10, 1952.

      Cowell & Fletcher, Cincinnati, for plaintiff-appellee.
    Louis J. Schneider, Jr., Cincinnati, for defendants-appellants.
   OPINION

By BADER, J.

This cause comes before this Court to be heard on the motion of the plaintiff-appellee to dismiss the appeal for two reasons, to-wit:

1. The rule of Court has not been complied with, and

2. Notice of appeal was not filed within twenty days from the date of the first judgment.

It appears from the transcript of the docket and journal entries that the motion for judgment notwithstanding the verdict was filed on April 4, 1952 and thereafter on April 18, 1952, a judgment was entered against the defendants-appellants for $525. No disposition was made of the motion for judgment notwithstanding the verdict until May 26, 1952, when it was overruled and, in the same entry, overruling the' motion another judgment was entered for $525. On this same date notice of appeal to the Court of Common Pleas on questions of law was filed. No notice of appeal has been filed in connection with the first judgment entered. No motion for a new trial has been filed as to either judgment entry. No assignments of error were filed in accordance with Rule XXVIII of this Court until two days after the motion to dismiss the appeal was filed.

The assignments of error were filed ninety-six days after the date of the second judgment entry, and one hundred and thirty-four days after the date of the first judgment entry.

Counsel for defendants contends that the first judgment entry does not prevail because the same was placed on record without his signature and without notice, and that the time should begin to run from the date of the second judgment entry, to-wit: May 26, 1952, which bears the signatures of all counsel concerned.

It appears that it is the law that when a valid judgment has been entered and then re-entered at a later date without vacating the first judgment, the date of the first judgment is the date from which to compute the time for perfecting an appeal. See M. J. Rose Co. v. Ross, 23 Oh Ap 23, 154 N. E. 346.

The first judgment entry in the case before this Court was entered on April 18, 1952, without disposing of the motion for judgment notwithstanding the verdict. On May 26, 1952, another judgment entry was recorded giving a judgment for the same amount and overruling the motion for judgment notwithstanding the verdict without vacating the original judgment entry.

It appears to the Court that if the time for appeal begins to run from the date of the first judgment for one purpose it should begin to run from the date of the first judgment for all purposes.

Sec. 12223-4 GC provides when an appeal is deemed perfected.

“Sec. 12223-4 GC. Appeal deemed perfected, when. The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court, tribunal, officer or commission. Where leave to appeal must be first obtained, notice of appeal shall also be filed in the appellate court. After being duly perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.”

Sec. 12223-7 GC provides for the time within which to perfect an appeal and reads in part as follows:

“Sec. 12223-7 GC. Time for perfecting appeal. After the journal entry of the final order, judgment or decree, has been approved by the court in writing and filed with the clerk for journalization, or after the entry of other matter for review, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows:
“1. In appeals to the supreme court, to courts of appeals or from municipal courts and from probate courts to courts of common pleas, within twenty (20) days.”

If the first judgment entry prevails then the defendants-appellants have filed their notice of appeal too late. If the second judgment prevails then the notice of appeal is within time. The Court is of the opinion that the time for appeal begins to run from the first judgment, and is not within time.

Rule XXVIII of the Rules of Practice of this Court provide the time within which assignments of error on appeal on questions of law shall be filed. The defendants-appellants are not only without time for filing their assignments of error computed from the date of the first judgment, but some forty-four days out of time from the date of the second judgment.

In the case of Cleveland Bldg. Benevolent & Pro. Union v. Board of Liquor Control, Oh Ap, 98 N. E. 2d 328, 329 syl. 2, the Court held:

“Motion to dismiss appeal because appellant failed to file briefs and assignments of error within time allowed by court rule, was sustained where no good cause was shown for noncompliance with rule.” C. of A. Rule 7.

And in the case of Costlo v. Sturm, Oh Ap, 90 N. E. 2d 431, syl. 2, the Court held:

“Rule requiring appellant to file assignments of error and briefs within a specified time, has consistently been strictly enforced, and an appellant must secure extension of time, where he is unable to comply with rule because of delay in approval of bill of exceptions by trial court.” Rule 7, C. of A.

In the case of Costlo v. Sturm, Oh Ap, 87 N. E. 2d 597, 598, syl. 1:

“Where appellant fails to file his assignments of error and briefs within 50 days after date of filing notice of intention to appeal as required by court rule, the appeal will be dismissed unless good cause is shown for the failure.”

State ex rel. Moore v. Smith, Sheriff, 84 Oh Ap 93, 85 N. E. 2d 608; State of Ohio v. Moore, 84 Oh Ap 91, syl. 1, 85 N. E. 2d 595; Maxwell Finance Co. v. Morton Show Case Co., 84 Oh Ap 94, syl. 1, 85 N. E. 2d 599; Renner, Treas, v. Rabkins, 84 Oh Ap 309, 87 N. E. 2d 178.

The Court is of the opinion that:

1. Time of appeal on questions of law begins to run from the date of the first judgment if it has not been vacated;

2. Notice of appeal filed more than twenty days after the date of the first judgment is out of time and too late; and

3. Assignments of error filed without leave of Court one hundred and thirty-four days after the first judgment entry, and ninety-six days after the date of the second judgment entry and the notice of intention to appeal, is not within the time required by the rule of this Court and the motion to dismiss the appeal should be granted.


author: By STEVENS, PJ.

text:
    BAXTER, Plaintiff-Appellee, v. BAXTER, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21689.
    Decided February 27, 1950.
    Kuth & Meyers, Cleveland, for plaintiff-appellee.
    Stewart O. McHenry, Canton, Lody Huml, Cleveland, for defendant-appellant.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By STEVENS, PJ.

This is an appeal on questions of law from a judgment and order of the Court of Common Pleas of Cuyahoga County, overruling defendant’s (appellant’s) motion to dismiss plaintiff’s (appellee’s) petition for alimony because of an alleged conflict of jurisdiction between the Court of Common Pleas of Cuyahoga County and the Court of Common Pleas of Stark County.

It is asserted in the briefs of counsel that defendant instituted a divorce action against plaintiff in Stark County and procured personal service upon her in that action, before service upon defendant was had in plaintiff’s alimony action in Cuyahoga County.

However, there is no bill of exceptions filed in this case, no agreed statement of facts, or anything from which this court could properly determine the existence of a conflict of jurisdiction.

It being incumbent upon appellant to affirmatively show the existence of prejudicial error in the proceeding in the Court of Common Pleas which is under review, before he is entitled to relief from a reviewing court, and there being no such showing on the record before us, this court has no alternative but to affirm the judgment of the trial court. Judgment affirmed. Exc. Order see journal.

HUNSICKER & DOYLE, JJ, concur.


author: By JENKINS, J.

text:
    BEES, Contestor, v. GILRONON et, Contestees.
    Common Pleas Court, Mahoning County.
    No. 139712.
    Decided January 22, 1953.
    Herschel Kriger, Canton, Solomon MalkofE, Youngstown, for contestor.
    Osborne & Osborne, William A. Mason, Youngstown, Patrick J. Mellilo, for contestees.
   OPINION

By JENKINS, J.

At the general election held November 4, 1952, the contestor and contestees were the four candidates for the office of commissioner of Mahoning County, Ohio, two to be elected. After a recount, the Board of Elections announced that 124,532 electors had voted for commissioner candidates, 59,275 on voting machines and 65,257 on paper ballots. The Board further announced that the candidates had received votes as follows: Gilronan 51,885, Wagner 47,791, Anderson 47,414 and Bees 44,427. Of these, those cast on paper ballots totalled: Gilronan 26,012, Wagner 28,006, Anderson 22,155 and Bees 27,086. Candidates Gilronan and Wagner were declared elected.

Candidate Bees brings this contest of election under §4785-166 GC and following, alleging that the votes cast for this office in the 187 precincts where 370 voting machines were used were void, and that he be declared elected to the office of County Commissioner on the result of the paper ballots, alleged to be the only legal votes cast for the office, or, in the alternative, that the court find that no person was duly elected to this office and that the election as to such office be set aside.

This serious charge is based on the claim that the names of the candidates for commissioner were not placed in the voting machines in compliance with the provisions of the constitution or of the statute.

Article V, Section 2a, of the Ohio Constitution, adopted by the people of Ohio in 1949, reads in part:

“The names of all candidates for an office at any general election shall be arranged in a group under the title of that office, and shall be so alternated that each name shall appear (in so far as may be reasonably possible) substantially an equal number of times at the beginning, at the end, and in each intermediate place, if any, in the group in which such name belongs.”

Sec. 4785-161e GC, contains the following language, originally placed therein in 1939 (118 O. L. 238), and re-enacted without change in 1949 (123 O. L. 478) and in June, 1951 (124 O. L. 703);

“The names of candidates required by law to be rotated alphabetically shall be rotated by precincts in regular serial sequence, so that each name of a list or group of candidates for an office shall appear upon the several voting machines used at the election, an equal number of times, as nearly as practicable, at the top, at the bottom and in each intermediate place, if any, under the title of the office sought.”

The claims of the contestor with the evidence bearing thereon at the trial will be stated in order. First, it is submitted that the arrangement of the ballot'form made the voting machines not legal instrumentalities. The names of the four candidates for commissioner were placed two by two in two columns to the right of the title of the office and not, as is the language of the constitutional provision, “under” the title. It is pointed out that only if arranged in one column “under” the title, could the provisions of the constitution and of the statute that the name of each candidate should appear at the top or beginning, at the bottom or end, and in each intermediate place substantially an equal number of times be carried out.

It is next contended that, inasmuch as the machines as set up and used failed to provide proper rotation of names, they were not légal instrumentalities. The evidence shows the ballot form, with its two columns as provided and used, in no instance placed the name of the contestor, a Democrat, in the column in which appeared the name of Stevenson, a Democratic candidate for president, who carried the county. It also shows that contestor’s name, of the four in the group, appeared in the top left position on 17.8 per cent of the ballot forms, in the two lower positions on 82.2 per cent, and not at all in the top right position. The evidence is that the clerk of the board of elections attempted to get up a ballot form for the machines which would group the four names in one column under the title of the office, that this proved impractical when the needs of all the offices to go on the ballot form were considered, and that the form finally adopted was approved by the secretary of state. The printer was then instructed to print the ballot forms in rotation according to law. The forms were then printed in six series with results as to the contestor’s position thereon as before stated. There was no direct supervision by the board or its employes of the printing to secure an alternation of each name substantially an equal number of times in each position. This was a grave omission. Blame for the result should not go to the printer, as the difficulties of typography were sufficient without the addition thereto of technical legal requirements of specific alternation which required the attention of an official charged with the duty. As printed and supplied for use in the voting machines, the names of the candidates on the printed ballot forms were not rotated “in regular serial sequence.”

It is next pointed out that, while the statute requires rota-tion of ballot faces in regular serial sequence by precincts, in 56 precincts they were not identical on each machine in the precinct. This arose from the supplying of additional voting machines to the regularly supplied precincts due to an enormous increase in the number of registered voters at a late hour before the election. In view of the nature of the emergency the supplying of these nonconforming machines must be held to be a compliance with the statutory language “as nearly as practicable.”

The contention that the voting machines by reason of the arrangement of the ballot form thereon were not legal instrumentalities, in that they did not and could not conform to the specific requirements of the constitution is a serious one and requires a consideration of the intention of the people in framing and adopting the amendment providing for the so-called office ballot.

Our supreme court in 156 Oh St 147 has declared that, as related to paper ballots, the provisions of the constitutional amendment set out with such clarity how the names of candidates shall be rotated, that the form of the ballot is clearly prescribed and is self-executing, making unnecessary any enabling legislation. This court, however, is without guide of authority or precedent as to the impact of this provision on ballots in voting machines.

The real intention of the people in. adopting this amendment, particularly with respect to voting machines, must be ascertained, if humanly possible, and given effect. To do this the judiciary must place themselves, as far as possible, in the position the framers, the people of Ohio, occupied when they formulated it.

Voting machines as means for the expression of a voter’s will have been provided for by law in this state since 1898, and as has been hereinbefore stated the language of §4785-161e GC, relating to rotation of names in connection with voting machines, has remained in its identical language since 1939. It is clear that the voters of Ohio in adopting the amendment in 1949 had in mind the use of these agencies in carrying out their will expressed therein. All courts have held that a constitutional provision shall receive a liberal interpretation with respect to those provisions which were designed to safeguard and effectuate the rights of the citizen. There is no higher right of a citizen than that, as sovereign, of voting for and electing the officers of government and of having his vote recorded and made effective.

Thomas Jefferson, one of the founding, fathers, gave this advice to our young country: “Laws and institutions go hand in hand with the progress of the human mind.” In the spirit of this democratic doctrine our supreme court has held (102 Oh St 505): “As civilization develops, and as new inventions and devices take their place in society, wherever the public is concerned and the welfare of the people is in issue, technical constitutional invasions must give way.” That meaning, then, is to be ascribed to the constitution which will not thwart or defeat, but which will accomplish and further the people’s purpose in its enactment or adoption. The people of Ohio intended the office ballot amendment and its provisions “in so far as may be reasonably possible” to apply to the use of voting machines.

With respect to the specific provision “that all candidates for an office shall be arranged in a group ‘under’ the title of that office,” it is enough to say, as did the Supreme Court of the United States in 8 How. 356, that the term “under” is sometimes used in its literal sense of “below in position,” but more frequently in its secondary meaning of “inferior” or “subordinate.” This court holds that, giving effect to the intention of the people, the latter is the meaning as used here. Coming to the failure, in printing the ballot forms for the machines, to secure an alternation in regular sequence so that each candidate’s name would appear a substantially equal number of times in each position, this, due to lack of official supervision of the work of the printer, was a grave irregularity. People being what they are, there is “something in a name,” and the people, believing that a psychological advantage accrues to a name by its position on a ballot, provided that this believed advantage should be shared among the candidates and stated how “in so far as reasonably possible” it should be done. Candidate Bees equally with each of the others was entitled to whatever advantage substantially equal rotation of position would give.

There is no evidence of fraud in this case; no evidence of any purposeful design on the part of anyone to manipulate the alternation of ballot forms; just plain oversight or failure in providing direction in the sequential printing of the forms. An irregularity in the performance of their duties by election officials, if a matter of substance, if it fails to give to all electors alike an opportunity to express themselves freely in their choice, would vitiate an election. Where the honesty of the ballots cast is not in question, where all the voters have an opportunity to give a free and fair expression of their will, and where the actual result thereof is clearly ascertained, a procedural neglect by election officials will not justify the rejection of such votes. Here the votes of 59,275 legal electors are affected and their disfranchisement is in issue.

A procedural irregularity being evident, and every vote on' the instrumentalities provided being honestly cast, the question then is: were all the voters alike by the use of these ballot forms able to give a free expression of choice? It is clear that whatever the arrangement of the names of the four commissioner candidates with respect to each other was on the ballot form provided, whether paper or machine, the individual voter had to look for the individual names of the two candidates of his choice and vote for each of them individually. If he wanted to vote for a candidate of his party regardless of name he would have to look more closely, because the constitution requires the party name to be printed under the candidate’s name “in lighter and smaller type face.” That this was the deliberate purpose and clearly expressed intent of the people when they adopted the office ballot system is shown in the language used in Article V, Sec. 2a, which has not hereinbefore been quoted:

“An elector may vote for candidates only and in no other way than by indicating his vote for each candidate separately from the indication of his vote for any other candidate.”

The constitution intended him to search for the name of the candidate of his choice and to express his choice for that one without regard to any one else on the ballot. It assumed his ability to read and his intelligence to indicate his choice wherever'the name appeared on the ballot independently of any other candidate. Every single voter in Mahoning County by paper or machine ballot had the opportunity of this free choice.

In passing, it is clear that the above cited language of the office ballot amendment disposes of the objection raised to the fortuitous circumstance of the name of the contestor appearing always in a column headed by Eisenhower.

The irregularity in failure to carry out the rotation “in so far as reasonably possible,” — because it was reasonably possible to provide supervision which would bring about the substantial equality in positions — was not then a matter of substance requiring the setting aside of the election. The action of the law in so saying must not be taken as condoning in the least the irregularity shown or as failing to warn against its repetition by all election officials from the secretary of state down.

The judgment of the court is that candidates Edward J. Gilronan and Fred A. Wagner were duly elected to the office of County Commissioner of Mahoning County at the general election held November 4th, 1952.


author: By DOYLE, J:

text:
    PENNSYLVANIA COMPANY FOR BANKING & TRUSTS, etc. et, Plaintiffs-Appellants, v. UNION BANK OF COMMERCE COMPANY et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21667.
    Decided April 10, 1951.
    Dorr E. Warner, J. Albert Lowell, Cleveland, for plaintiffs-appellants.
    C. Wm. O’Neill, Atty Geni., Columbus, for defendants-appellees.
    (DOYLE, J, HUNSICKER, J, of the 9th District: MONTGOMERY, J, of the 5th District, sitting by designation in the 8th District.)
   OPINION

By DOYLE, J:

Under the terms of a plan of reorganization (carried out later in full detail) for the liquidation of The Union Trust Company, and the creation of a new bank, stockholders of the liquidated bank, who had paid their assessed double liability in full were given certain rights. The plaintiffs herein are stockholders in the liquidated bank who have paid their assessments in full but who have been denied a right, which they claim to exist, to share with others who paid their double liability in full, in the ownership of a proportionate number of shares of the newly created bank within the terms of the reorganization plan.

The plan itself has been tested in the courts on numerous occasions and has been approved in every instance. Its legality cannot now be successfully challenged.

In brief, pursuant to the plan and under authority of §710-95 GC, the Superintendent of Banks sold to the newly created bank, The Union Bank of Commerce, certain assets held by him as liquidating officer of the stricken bank. In consideration, therefore, there was transferred to certain named trustees “1/20 share of the fully paid $100.00 par value common stock of the new bank for each share of stock of the old bank” owned by a qualifying stockholder of the old bank, for the account of such stockholder of the old bank, the deliverance of which stock, however, being subject to the payment of certain obligations of the liquidation.

;Under the arrangement, stockholders who, prior to the consummation of the plan (April 11, 1938) had paid their double liability in full, and executed and delivered a stockholder’s consent and agreement to the plan and to the various “conveyances and agreements” to be made by the Superintendent of Banks as provided in the plan and agreed to accept the benefits of the plan in full satisfaction of their claims as stockholders growing out of their ownership of stock in the old bank and their payment of double liability etc., were given certain rights entitling them to stock in the new bank upon the conditions therein stated.

Under other provisions of the plan, it was provided that stockholders of the old bank who had paid their double liability assessment, together with interest thereon “at any time before the expiration of one year after the time this plan is consummated” and who “within the time such payment is 'required, execute and deliver * * * a complete release and discharge of it and of the superintendent of the Old Bank from any claims which such stockholder may have against them or any of them growing out of the ownership of such stockholder’s stock in the Old Bank or his payment of double liability assessed thereon; and * * * surrender for cancellation the certificate or certificates representing the shares of stock in the Old Bank in respect to which the double liability assessment against him was made, together with any receipt, or receipt and agreement, which the superintendent may have delivered as evidence of, or in connection with, the payment of such assessment on such shares” would be given rights entitling them to stock in the new bank after the payment of specified obligations of the trustee etc. In connection with these rights it was further specifically stipulated that “the obligation * * * to deliver or cause to be delivered such stock of the new bank to said trustees for the account of such stockholder, shall be expressly conditioned upon the receipt * * * of the double liability and interest payments * * * after this plan is consummated on account of such stockholder’s 'stock in the Old Bank.”

The plan further provided that new bank stock held by the trustee in excess of the amount needed for those old bank stockholders who had paid their double liability and consented to the terms of the plan “within a year after the consummation of the plan” will be assigned and transferred to the new bank. This provision is as follows:

“That if and when the creditors’ notes shall have been fully paid or satisfied, it will assign and transfer to the New Bank all of the shares of the common capital stock of the New Bank * * * which are not used by it in settling the felaims of stockholders of the Old Bank * *

It seems proper to herein insert that the fulfillment of the rights given to old stockholders to stock in the new bank was originally conditioned upon the payment of many obligations. The stock to which the rights were given was pledged for such purpose. These obligations were all met and the stockholders of the old bank who qualified under the plan were awarded their allocated number of shares in the new bank. This is true of those who (1) fell in the category of persons who qualified prior to the consummation of the plan, as well as to those (2) who fell into the class of stockholders who qualified within a year after its consummation. The fact is further established that some shares of stock were not used in settling the rights of the old stockholders who fell into the second category above and they were accordingly assigned and transferred to the new bank under authority of a provision of the plan heretofore set forth and subsequently this stock was retired.

Supplementing now the first paragraph, it appears that the plaintiffs have grouped themselves into a class. They all paid their double liability assessment on the stock which they owned, but they, for some reason, objected to the plan of reorganization and refused to comply with the conditions which would qualify them to participate in the rights given to stockholders of the old bank. As a result of their refusal, they were deprived of the rights to stock in the new bank which would have been theirs had they consented and performed the various acts heretofore set out under the terms of the plan. These petitioners now say that they are entitled to 191 shares of the new stock (or its equivalent) because, under the plan itself (which they do not and cannot now challenge), the new bank, holds this stock, or its equivalent, by way of a trust — it, the new bank, having acquired this asset through the use of their money.

In consideration of the issues created by the pleadings, this Court is of the opinion that from the facts presented, there is shown to exist neither an express, resulting, nor a constructive trust through which the petitioners can secure the relief sought. The money which they paid as the result of a double liability assessment imposed upon all stockholders of the bank, became a part of a single fund and was used for the benefit of the creditors having valid claims. The well known principles of trusts have been carefully reexamined in view of the opinion of the trial judge in the court of common pleas. We can find no justification for their application to this case.

It is the further conclusion of this court that the defense of res ad judicata is established. The issues here presented have been adjudicated in previous litigation under circumstances which justify the application of the rule.

The petitions of the plaintiffs appellants will be dismissed. Exc. Order see journal.

HUNSICKER, J, MONTGOMERY, J, concur.


author: By HORNBECK, PJ:

text:
    GILBERT, Plaintiff-Appellee, v. KEMP, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2176.
    Decided April 10, 1952.
    Richard C. Sharrer, Dayton, for plaintiff-appellee.
    Harold E. Smock, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, PJ:

This is an appeal from a judgment of the Municipal Court of the City of Dayton, Ohio, in favor of the plaintiff against the defendant for $73.24. Defendant appeals.

Plaintiff sued on short form upon an account for labor which account is appended to the petition as Exhibit A. No book account was tendered and the proof developed that the plaintiff was claiming under a special contract. However, there was no specific exception to the cause proceeding upon the petition and the court had the right to determine the question upon the case made by the parties on the evidence. It has also been held that an action on account in the short form may be maintained although there was a special contract if the special contract has been fully performed. Riley Co. v. The Levy Overall Mfg. Co., 10 Oh Ap 261.

Two errors are assigned, the first of which includes the nature of the form of action which we have just discussed and also urges that there is no testimony to the effect that the defendant owed the plaintiff the sum of $73.24, or any other sum or sums whatsoever.

There is proof in the record undisputed that the plaintiff baled all the hay which belonged to the landlord, defendant and Swigart, his tenant. There is some variation whether the charge was to be 14c or 14%c per bale. At least, the lesser-sum would have been a proper charge under the evidence. There is specific proof in the record that at the first cutting of hay the plaintiff baled 742 bales and at the second cutting 298 bales, the sum total of which is 1040 bales, % of which would be 520 bales which at 14c per bale would be $72.80. The judgment was for 516 bales at 14c which sum was stated to be $73.24. The proper amount would be $72.24.

There is definite proof to support the judgment for $72.24 which should be the amount carried into the judgment inasmuch as there is difference between the specific and the general finding of the trial court.

All other questions argued in appellant’s brief relate to the sufficiency of the evidence or the quality of the proof.

We may not interfere with the findings of the trial judge respecting the credibility of the witnesses nor the weight of the testimony. So considering this record, it supports the conclusion that the landlord, appellant here, had a written agreement with his tenant, Mr. Swigart, one of the terms of which was that:

“Geo. Kemp shall have one half of the hay and said one half shall .be hauled to and stored in the barn and the same to be the exclusive property of the said George F. Kemp.”

This provision of the agreement is silent upon the question whether the hay was to be put into the barn baled or unbaled. However, it would not be material even if it did so provide, except evidentially. •

It is the claim of appellee that he had a contract with George B. Kemp, son of appellant, whereby the son employed appellee to bale the one half of the hay which belonged to Kemp’s father, appellant here. The trial court properly held that under a power of attorney from appellant to his son, the son was authorized to make the contract with plaintiff to bale the one half of the crop. The pertinent part of the power of attorney reads:

“I, George F. Kemp, * * *, do make, * * *, constitute and appoint Walter Gross and George B. Kemp, Jr. * * *, my true and lawful attorneys in fact for me and in my name, place and stead, to manage and control my interests and rights in the farm owned by me (describing the farm) giving and granting unto my said attorneys or either of them, full power and authority to do and perform all and ever act and thing necessary whatsoever, requisite, necessary and proper to be done in and about said premises, as fully, to all intents and purposes, as I might or could do, if personally present, with full power of substitution and revocation hereby ratifying and confirming all that my said attorneys, or either of them * * * shall lawfully do, or cause to be done by virtue hereof.”

There can be no doubt upon the clear and unmistakable language above quoted, of the authority of Kemp, Jr. to bind his father to the contract here urged. There is then left only the next question, viz: was there such a contract? The plaintiff expressly testified to such a contract, the time, place and conditions under which it was made. His testimony is disputed by appellant and his son but the trial judge had full right to accept the case as made by the plaintiff.

There are other circumstances which in the most favorable light to the plaintiff are corroborative of his claim as to the contract.

Without discussing the evidence at any further length, we are satisfied upon the record that no prejudicial error intervened to the rights of the appellant in the trial of the cause or in the judgment as entered with the exception of the slight modification which we have heretofore made.

The judgment as modified will be affirmed.

WISEMAN and MILLER, JJ, concur.