author: By CONN, PJ:

text:
    CLEVELAND (City), Plaintiff-Appellee, v. RICHARD, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21870.
    Decided October 23, 1950.
    A. P. Lysowski, for plaintiff-appellee.
    S. F. Komito, for defendant-appellant.
    (CONN, PJ, CARPENTER, J, FESS, J, of the 6th District sitting by designation in the 8th District.
   OPINION

By CONN, PJ:

The defendant, Raymond Richard, filed in this court his appeal on questions of law from a judgment entered in the Municipal Court of Cleveland, Criminal Branch, finding said defendant guilty of a violation of Section 2404-6 of the traffic code of said city.

The section of the traffic code above referred to reads as follows:

“The driver of a vehicle emerging from an alley, driveway, or building, shall stop such vehicle immediately prior to driving on to a sidewalk or into the sidewalk area extending across any alley, and upon entering the roadway, shall yield the right-of-way to all vehicles approaching on said roadway.”

The affidavit filed by the complaining witness, William J. Corrao, charged that defendant

“unlawfully drove his automobile from a driveway into the flow of traffic on the main thoroughfare without due regard for vehicle law on said street and failed to yield the right-of-way.”

To the charge laid in the affidavit, the defendant entered a plea of “not guilty.” It became incumbent on plaintiff to establish beyond a reasonable doubt each and every material averment therein.

As already pointed out, the affidavit charged that the defendant unlawfully drove his automobile from a driveway into the flow of traffic on a main thoroughfare and also that defendant failed to yield the right of way. It is admitted or established by the evidence that the alleged violation of the ordinance occurred at the intersection of Walworth Avenue and West 61st Street; that Walworth Avenue is a three lane highway extending in a general easterly and westerly direction; that West 61st Street is a north and south street and shortly after it intersects Walworth Avenue it comes to an end to the south at a point where it is intersected by a railroad track.

The prosecuting witness testified that he was proceeding east on Walworth Avenue; that when about thirty feet west of said intersection, he first observed defendant’s automobile headed northwesterly at about the center line of Walworth Avenue and that to his best recollection it was moving slowly.

On cross-examination, this witness testified that he could not say whether or not defendant “made a stop at the southeast corner of said intersection” due to the fact that parked automobiles on the south side of Walworth Avenue obstructed his vision. Plaintiff called a police officer who did not witness the accident but who testified that he did observe debris from the accident in the middle of Walworth Avenue and on cross-examination testified that the most easterly one of the automobiles parked on the south side of Walworth Avenue was parked close to the corner of West 61st Street. The officer further testified, over the objection of defendant, that it was his understanding that West 61st Street south of Walworth Avenue had been abandoned by the city and vacated as a public street.

No further evidence was offered by the plaintiff and thereupon the defendant moved for a directed verdict of acquittal, which motion was overruled.

The defendant was called as a witness and testified that he proceeded north on West 61st Street and brought his automobile to a full stop at the southeast corner of the intersection with Walworth Avenue; that he looked to his right and left but that his vision to his left was obscured due to the line of parked automobiles on the south side of Walworth Avenue; that he put his car in first gear and proceeded slowly to a point in the intersection where he could see oncoming east-bound traffic on Walworth Avenue at which point the front of his automobile was approximately in the center of said avenue and that he then observed the automobile of the prosecuting witness approaching from the west about sixty feet away; that he brought his automobile to a stop to permit this on-coming ear to pass but that it collided with the left front part of his automobile. He also testified that he was then occupying about one and a half lanes of Walworth Avenue.

No further testimony was offered and thereupon the defendant moved for “a directed verdict of acquittal” which motion was overruled.

Under the ordinance and the charges laid in the affidavit it was incumbent on the plaintiff to establish by the required degree of proof the following material issues of fact:

1. That the defendant was “the driver of a vehicle emerging from * * * driveway * *

2. That he did not stop immediately prior to driving on the sidewalk or into the sidewalk area;

3. That he failed to yield the right of way.

The testimony of the police officer that it was his understanding that West 61st Street south of Walworth Avenue had been abandoned by the city was incompetent and should have been stricken out upon objection being interposed by the defendant. No competent evidence was offered that the roadway or street over which defendant drove his automobile as he approached and entered Walworth Avenue was a private driveway or alley.

The testimony of defendant that he brought his automobile to a stop before entering the intersection and that he thereafter proceeded slowly and upon discovering the on-coming automobile from the west again made a stop is nowhere directly challenged.

No evidence was offered that Walworth Avenue is a main thoroughfare as charged in the affidavit. While it is not necessary under the ordinance to establish this averment, it may be noted that the automobile of the prosecuting witness was approaching an intersection from defendant’s left and that the defendant had then already entered the intersection after making a stop and was observed in the intersection by the prosecuting witness when he was thirty feet or more away. From all that the record shows there remained one-half of Walworth Avenue open and unobstructed over which the automobile approaching from the west could have passed.

We are of the opinion that the court erred in overruling defendant’s motion for acquittal at the conclusion of all the evidence and that the judgment should be reversed and the defendant discharged.

CARPENTER, J, FESS, J, concur.


source: Caselaw Access Project

author: By CROMER, J. Marshall, C. J.,

license: Public Domain

text:
    STATE, ex rel. HETZLER, Plaintiff, v. SNYDER, Defendant.
    Municipal Court, Piqua.
    No. 487.
    Decided May 10, 1950.

      A. W. DeWeese, J. H. DeWeese, Piqua, for complainant.
    Bernard S. Keyt, Piqua, for defendant.
   OPINION ON MOTION FOR NEW TRIAL

By CROMER, J.

This case has been tried twice to a jury. On the first trial to a six-man jury, there was a disagreement. On the second trial to twelve jurors, the verdict was unanimous in favor of the plaintiff. All the jurors signed the verdict. The Court, upon the return of the verdict, asked if either attorney desired to poll the jury. No indication was made of a desire to poll the jury. Hence, the jury was not polled.

Within proper time, the defendant filed a motion for a new trial. Altho the motion contains eight grounds, only two are urged with any degree of earnestness.

One ground goes to the instructions given by the Court. There was no objection made to the instructions of the Court, either general or special. This objection seems to have been waived.

First, it is urged finally that there is “Misconduct of the jury prejudicial to the defendant and materially affecting his substantial rights of which the defendant did not and could not have had any knowledge prior to the rendition of the verdict.”

Secondly, it is claimed by the defendant that there was error in “permitting the defendant to testify on cross-examination as the first witness in the trial, over objection.”

These are the only errors claimed in the trial of the case and they will be taken up in the order indicated.

1. AS TO MISCONDUCT OF THE JURY

The attorney for the defendant brought into court, upon the hearing of the motion for a new trial, two witnesses, both of whom had been jurors in the case and both of whom had signed the verdict finding the defendant “guilty.” Of the two witnesses called, only one of them was placed on the witness stand. The attorney for the plaintiff objected to the witness testifying because he contended that the evidence could only be shown only by deposition or by affidavit. The Court was of the opinion that the manner of producing the evidence was not too important — altho not strictly according to statute — but that there was a more important rule of evidence involved, namely, non-impeachment of a verdict by the testimony of a juror who rendered it.

Mr. Scott Watterson, a former juryman in the case, was placed on the stand and the following are the questions asked and the proffers made after the objection was sustained by the Court:

Q. “You rendered a verdict in that case as such member of the jury?”

Objection by Mr. DeWeese on the ground that proper foundation had not been laid.

Q. “You rendered a verdict of guilty as shown by the record in this case, did you not?”

OBJECTION SUSTAINED.

Q. “During the process of the trial, I’ll ask you whether or not you made a statement, not trying to quote your exact words, and before all the evidence was before the jury and before you heard the charge of the court, if you made a statement that you did not see why it was necessary to go on with this case, as you had made up your mind”?

OBJECTION SUSTAINED.

MR. KEYT: “Let the record show that if the witness had been permitted to testify, he would have testified that he did make a statement to the effect that he didn’t see why it was necessary to go on with this case because he had already made up his mind.”
Q. “I’ll ask you whether or not you did determine, prior to the time when all the evidence was in and before the charge to the jury, and if you had made up your mind what the verdict would be?”

OBJECTION SUSTAINED.

MR. KEYT: “Let the record show that if the witness had been permitted to testify, he would have testified that he had made up his mind what his verdict would be before he had heard all the testimony and before the charge of the court to the jury.”
Q. “I’ll ask you if in your deliberations, you discussed anything in the case pertaining to the-blood test?”

OBJECTION SUSTAINED.

MR. KEYT: “Let the record show that if the witness had been permitted to testify, he would have testified that the jury discussed and deliberated questions as to blood grouping test and the effects and why it was not introduced into the evidence.”
Q. “How many votes did the jury take on this case?”

OBJECTION SUSTAINED.

Q. “How many times did the jury take a vote in this case?”
OBJECTION: “The question has been asked before.” Question withdrawn.
Q. “I’ll ask you whether or not at any time before all the evidence was presented to the jury and before the jury heard the charge of the court, if you had determined what your verdict would be?”

OBJECTION SUSTAINED.

COURT: “You cannot impeach the verdict of a jury by the testimony of one of the jurors. This is upon authority of 39 O. Jur. Trial, Sec. 383, p. 1110, Impeachment of Verdict. This is the only authority we have been able to find in the few minutes remaining after we were informed of the question involved in this case.”

The last proffer repeats that the juror had made up his mind before the “evidence was presented and before the charge to the jury.”

At this point we wish to say that no proffer was made as to what the witness’ verdict would be or in what respect his mind was made up. It is not indicated whether it was “guilty” or “not guilty,” the juror-witness, having signed the verdict of “guilty” we must assume it would be “guilty.” We cannot presume that the witness violated his oath. The presumption is the other way, namely, that he did his duty.

We must realize that this is an attempt, by the defendant, to overthrow the verdict by one juror, when, under the law of a three-fourths verdict, it would take at least four jurors. What cannot be done directly ought not to be done indirectly. Suppose this witness who was a juror in the case, alone had voted “not guilty,” what effect would it have had upon the verdict? None whatever. Even if the second witness had been called and testified as did the first-according to the proffer — the result would still be the same. Assuming the facts to be as proffered and, further, assuming the two juror-witnesses had made up their minds prematurely to vote “not guilty,” it would make no difference in the final result.

Judge Cushing of the Court of Appeals of Pickaway County, Phillips v. Board of Education, 21 Oh Ap 194 (2/4/1924) after citing several of the Ohio cases on the non-impeachment rule, said: “These cases were decided prior to the amending of the Constitution in 1912, and the enactment of the law that three-fourths of the jury could return a verdict.”

“Syl. 5. Affidavits of jurors will not be received to impeach their verdict, especially in view of the amendment of the Constitution in 1912 providing that three-fourths of a jury may return verdict.”

Upon the matter concerning “blood grouping test” mentioned in the proffer, the Court says that after the charge was read to the jury, one juror asked about a “blood test.” The court said to the jury that there is no evidence in this case in regard to a blood test; that a blood test is an exclusionary test; that the jury must disabuse their minds entirely as to such a test and that the jury must not consider it at all. Up to the time of this inquiry by the jury, not a word had been said about a “blood test.”

If the jury discussed such a test, it cannot be shown by the oath of a juror who signed the unanimous verdict, because there is no evidence aliunde — only from the juror himself. Since the word “aliunde” will appear several times hereafter in the cases cited, at this point it will be well to define the word. Bouvier’s Law Diet. (Rawless Rev.) says: “Aliunde (Latin), Prom another place.”

TEXT AUTHORITY ON IMPEACHMENT OF VERDICT

53 Am. Jur. Trial, Secs. 1105 to 1108, Generally: “While matters of impeachment extrinsic to the verdict may, according to the view of many courts, be shown by the testimony of jurors, it is a long-established and generally accepted doctrine, except where modified by statute, that testimony or affidavits of jurors will not be received where the facts sought to be shown are such as inhere in the verdict.”

This is the rule of the Federal courts and is followed in 36 states, including Ohio.

The same principle is stated in Jones on Evidence (4th Ed — 1938) Sec. 767, Impeachment of Verdict — Misconduct of Jurors: “Jurors must understand that their deliberations in the jury room are inviolable and that the reasons for their verdict cannot be questioned. Accordingly, it is held that the testimony of affidavits of juror will not be received as to the jurors’ deliberations in the jury room or to impeach their verdict. The statement of a juror is inadmissible to show that some of the jury did not in fact concur in the verdict or did not understand it, or to show a misunderstanding of the charge or the law applicable to the case. Similarly, a juror’s testimony is not competent to show that a jury consented to the verdict because compelled by poor health to escape confinement, that the jurors were influenced by improper facts or by information improperly obtained during the deliberations of the jury or that the verdict was arrived at by lot or by some other improper procedure.

The courts adhere generally to the rule that the testimony of jurors will not be received to show their own mistake, misconduct, to prove that their fellows, while in the jury room, or otherwise to impeach their verdict * ‘ ’ It has been held that the affidavits of jurors may be received to show any matter occurring during the trial or in the jury room which does not essentially inhere in the verdict itself —as that the jury was improperly approached by interested parties or their agents, that witnesses or others conversed concerning the case in the presence of the jurors, or that the verdict was obtained by average or lot or in some improper manner.”

An affidavit of a juror may be used to “explain but not to impeach his verdict” or “in support of their verdict.” 39 O. Jur. Trial, Sec. 382, p. 1110. Impeachment of Verdict — Evidence of Jurors “It is a long established and a generally accepted doctrine, founded upon the “wisest reasons” of public policy, rather than upon any doctrine of estoppel, that the verdict of a jury may not be impeached by the testimony or affidavits of a member or members of the jury rendering the verdict unless there is evidence aliunde impeaching the verdict. In other words, to render a juror’s testimony competent to impeach his own verdict, a foundation must first be laid by testimony from other sources tending at least to show the irregularities which are set forth in the affidavit, of the juror himself, and making out a prima facie case. To this latter extent, at least, it is safe and just to regard the affidavits of jurors as admissible. This foundation, however, must consist of knowledge acquired by the court by other means than the affidavits of jurors themselves. * * * The rule above stated is so firmly established that the Ohio Supreme Court has declared that only the legislature, and not the courts, can modify or abrogate the rule, although there has been some contention by the courts for the abandonment.”

In 1785 Lord Mansfield decided the case of Vaise v. Delaval, 1 T. R. 11, 90 Eng. Rep. 944 (K. B.). This is a leading case and the background of all the subsequent cases. Part of the opinion is as follows: “The court cannot receive such an affidavit from any of the jurymen themselves * * * but in every such case the court may derive their knowledge from some other source; such as from some other means.”

There is a good discussion of the problem to be found in 27 R. C. L. Trials, p. 896.

8 Wigmore on Evidence, Sec. 2348a states the rule as follows: (P. 666)

“a. — The jurors’ deliberations during retirement, their expressions, arguments, motives, and beliefs, represent that state of mind which must precede every legal act and is in itself of no jural consequence. The verdict, as finally agreed upon and pronounced in court by the jurors, must be taken as the sole embodiment of the jury’s act. Hence it stands, irrespective of what led up to it in the privacy of the jury-room — precisely as the prior negotiations of the parties to a contract disappear from legal consideration when once the final agreement is reduced to writing and signed. The difference is that the parties need not have reduced their transaction to a single memorial (i. e. by integration) unless they wished to, while the law required the verdict thus to be made; but the effect is the same, when the act is once done.”
“Sec. 2349 (a) JURORS’ MOTIVES, BELIEFS, MISUNDERSTANDINGS. Intentions and the like, as Immaterial. For the reason already stated (ante, Sec. 2348, par. a) the verdict as uttered is the sole embodiment of the jury’s act, and must stand as such without regard to the motives or beliefs which have led up to their act. The policy which requires this is the same which forbids a consideration of the negotiations of parties to a contract leading up to the final terms as deliberately embodied in their deed, namely, the loss of all certainty in the verdict, the impracticability of seeking for definiteness in the preliminary views, the risk of misrepresentation after disclosure of the verdict, and the impossibility of expecting any end to trials if the grounds for the verdict were allowed to effect its overthrow.”
“Accordingly, it is today universally agreed that, on a motion to set aside a verdict and grant a new trial, the verdict cannot be affected, either favorably or unfavorably, by the circumstances.”

There are a number of cases in Ohio and we now shall refer to them in their proper sequence.

The Ohio Cases

Hulet v. Barnett, 10 Ohio 459 (1841). The question in this case arose on a motion for a new trial. It was claimed that the verdict “was procured through the improper conduct of the constable, who was much of the time, in the jury room, conversing with the jury, about the cause; that he took sides in said cause and that when he was ordered out of the room by some of the jury he replied that he was acting under oath as well as themselves.”

Evidence of misconduct consisted of the depositions of two of the jurymen.

Grimke, J. said: “Now, if there is any rule which can be completely settled and which has been found for the purpose of setting bounds to the discretion of the court, it is that testimony of this kind should not be received.”

The court, continuing, said that the rule was a “wholesome one” and “it is founded upon wisest reasons of public policy.”

The language of the court is obiter dictum, not being necessary for the decision of the case which was one for an injunction against the enforcement of the judgment. The injunction was dismissed. The court said: “There is not in reality any evidence of misconduct on the part of the jury.” The misconduct was on part of the constable whose conduct the jury resented.

The Hulet case is overruled in the case of Emmert v. State, 127 Oh St 235 (1933) as to that part of the case “inconsistent” with the Emmert case. The Hulet case will be noticed again when we come to the Emmert case. They are very similar as to the facts.

The next case in Ohio upon the subject of the impeachment of the verdict of the jury by the affidavits of the jurors, is Farrer v. State, 2 Oh St 54 (1853).

The syllabus reads as follows: “The general rule, undoubtedly, is that affidavits of jurors are not admissible to impeach their verdict. But where, on motion for a new trial, other testimony is given to the court tending to show that the jurors, in their retirement had in their possession a newspaper, or part of a newspaper, containing a part of the charge of the court, affidavits of jurors may be received, to show what the paper was, if their possession and use of it does not involve a charge of improper motives on the part of the jurors.”'

“The holding of conversation by the jury, while in their room, with persons on the street, in regard to any subject of their deliberation, before their verdict is rendered is, in general, good cause for setting aside their verdict.”

Judge Corwin in his opinion speaking of the jurors’ conversation from the. windows of the jury room to people on the street, said:

“These facts do not rest on the testimony of witnesses who were of the jury * * * In the instance before üs, the foundation to which we have referred was properly laid and the court, having thus made prima facie a case of misbehavior in the jury, might well have considered the further facts, which are said to be provable by affidavits of particular jurors.”

The case of Holman v. Kiddle, 8 Oh St 385 (1857) is the next case where the problem is discussed. The second syllabus is as follows:

“2. Affidavits of jurors, stating that they misunderstood the charge of the court, will not be received on'motion to set aside the verdict.”

This was a will contest case, Judge Swan says in his opinion:

“Practically, if a juror’s affidavit, stating his idea of the law as the judge had expounded it, or the facts as he understood the witnesses, were to be held sufficient to set aside á verdict, provided it should turn out that he was mistaken in any particular, scarcely any verdict could stand. Besides the improbability that, in cases of intricacy, all the jurors would understand perfectly all the principles of law expounded to them, it would be extremely easy for a juror, who had been tampered with, to swear that he had formed his verdict upon such grounds as would insure a new trial, and it would be impossible to detect the collusion or punish perjury. The practice would hold out strong inducements for suitors to tamper with jurors. Such affidavits, therefore, upon grounds of public policy, have been in general rejected by courts.” (Cases cited including Hulet v. Barnett, 10 Ohio, 459)

Kent v. State, 42 Oh St, 426 (1884) is the next case on this matter of impeachment by the affidavit of the jurymen themselves.

In this case it was declared to be misconduct for a jury to take his seat in the jury box “and then make to his fellow-jurors a statement of matters alleged to be within his own knowledge, contradicting in an important particular the testimony of one of the defendant’s witnesses, and the defendant is convicted, ground is afforded by such misconduct for a new trial, where the fact is properly made to appear, but the affidavits of jurors will not be regarded for the purpose of setting aside the verdict, until misconduct of the jury is shown aliunde.” (Emphasis ours.)

In his opinion in the Kent case, Judge Okey said:

“But there is no evidence of misconduct except that contained in the affidavits of jurors, and the statements in affidavits had relation alone to what took place in the jury room, and affected, in a sense, each and every juror. Hence, applying the ordinary rule, that affidavits could not be properly considered until some evidence other than the testimony of jurors had been offered, no case for setting aside the verdict was shown. Farrer v. State, 2 Oh St 54: Thompson and Merriam on Juries Ch. 21. If the law in this respect is wrong, the legislature alone should change it.” ( Emphasis ours.)

We might add that some legislatures have changed the rule. Ohio has made no such change.

The next case is Janes v. Hoehn. 3 C. C. 433 (1888). The entire case is as follows: “The jury agreed to each juror to assess the amount of damages, the added total to be divided by twelve, and agreed to and did return the quotient as their verdict. This was proved only by the affidavits of jurors.

“Held: The evidence was inadmissible to prove such misconduct. 2 Oh St, 54.”

The next Ohio case, in point of time, is the case of Gobi v. State, 46 Oh St 457 (1888). The opinion is by Judge Brad-burg who says, at page 471, the following:

“10. Misconduct of the jury is alleged, and the affidavits of the jurors offered to prove it, from which it appears that the jury at first stood six for assault and battery, and as a compromise the six agreed to vote for manslaughter, and the vote stood six for manslaughter and six for murder in the second degree; that it was then agreed to prepare 24 ballots, twelve for manslaughter and twelve for murder in the second degree, place all of them in a hat and each juror draw one ballot therefrom, and render a verdict either for manslaughter or murder in the second degree, as the majority should appear; that the first drawing was a tie, but the second one resulted in eight ballots for murder in the second degree and four for manslaughter, and thereupon, according to the agreement a verdict was rendered for murder in the second degree. There was no other evidence of this misconduct than the affidavits of two jurors: for, while an affidavit of the prisoner was offered in corroboration of them, it is apparent on its face that his statement was only hearsay, and for that reason properly rejected. There only remained in proof of the alleged misconduct the two affidavits of the two jurors; this was ample proof in the absence of evidence to contradict them, if the evidence was competent at all. The court held them incompetent, which consequently left the allegation of misconduct without proof. The almost unbroken current of authority supports this holding (Kent v. State, 42 Oh St 426). Thompson and Merriam on Juries 539, and thus it may appear to ail the world, by the subsequent statements of the jurors, that the liberty of a citizen has been gambled away in a jury room, yet the court is powerless to interfere, because the policy of the law is, first, to seclude the jury, and second, not to allow their evidence to impeach their verdict.” (Emphasis ours.)

The court also referred to the “principles of public policy” and that any other rule would “endanger the stability of verdicts.” The court admitted that this case “strains the principle” and expressed a desire for “a carefully guarded exception to the rule.” The court finally declared that “its determination is not necessary to a decision of the case.”

The case of Parker v. Blackwelder 7 C. C. 140 (1892) is a civil case, being a suit upon some notes. The jurors on Saturday, stood six to six. On Monday, in the jury room one of the jurors represented that the defendant was insolvent and that a verdict against defendant would not hurt him. Three of the jurors believed this statement and voted against the defendant. Affidavits of the three jurors were offered in evidence as ground for a new trial. Motion overruled.

Judge Woodbury, relying upon the Hulet, Farrer and Kent cases, said:

“Affidavits of jurors cannot be received after verdict to impeach the same unless evidence aliunde is first offered: and the affidavit of the attorney did not constitute such a showing aliunde” being second hand.

Wertz v. C. H. & D. Rd. Co. 110, Sec. 802 (1900) is a case by the Common Pleas Court of Butler County, decided by Judge Vandever. The question was whether the amount of a verdict rendered by the jury was $22.50 or $2,250. It all depended upon where the dot was placed. All twelve jurors stated in affidavits that the sum of $22.50 was the amount of the verdict. The third paragraph of the syllabus reads: “A verdict cannot be amended by the court on motion of the affidavits of jurors made after they have been discharged and showing such mistake.”

Alms v. Andrews Bros. Co. 9 C. C. 591 (1895) is by the Circuit Court of Mahoning County and is an oral opinion by Judge Frazier where it is said: “In Kent v. State, 42 Oh St 426, it is held, ‘that affidavits of jurors will not be regarded for the purpose of setting aside the verdict until misconduct of the jury is shown aliunde’.”

“In the case at bar they are not seeking to invade the jury room; they are inquiring of conduct outside of the jury room, and during the view of the premises or place where the injury occurred. But assuming all the testimony offered to be competent, the record must clearly show there is misconduct. The idea of misconduct outside the jury room seems to anticipate the same motion in the Emmert case, supra. (Emphasis ours.)

In the Alms case, Juror L. says (it seems that the witness testified instead of filing an affidavit) that Juror R, while looking at a straightening machine where the injury occurred, said: “Anyone that puts a hand in there (in the machine) ought to be hurt.”

The court concludes: “And in our opinion the plaintiff does not show himself entitled to a new trial.”

Judge Houck, of the Court of Appeals of Knox County, writes the opinion in Dodd v. McCammon, 14 Oh Ap 160 (3/20/1920) wherein the attorney for the plaintiff filed his own affidavit in which he stated that he, the attorney, several days after the trial, had a conversation with two of the jurors in the case. Juror N, said: “That man Dodd (plaintiff below against whom a judgment was rendered on defendant’s cross-petition) has been at that kind of business so- long that the jury thought it was about time to punish him (Dodd) a little.”

It is stated in the opinion that “it is a well-settled proposition of law in this state that unless there is evidence aliunde, affidavits of jurors are not admissible to impeach their verdict.”

This case also decided another proposition that is important in the matter before us. The court said that the misconduct necessary for a new trial must be such as to “clearly constitute a disqualification to properly exercise the powers of reason and judgment.” Adding, it matters not “if it (misconduct) was not caused by the prevailing party or by anyone for him, or if it does not point to any improper prejudice or bias upon the minds of the jurors, unfavorable to the party seeking a new trial.”

In Long v. Cassiero, 105 Oh St 123 (5/16/1922) nine of the ten jurors who signed the verdict filed affidavits “that the said verdict was made out through a mistake and misunderstanding in the charge of the court.” Judge Jones in his opinion says: “It may be noted in this connection that the entry of the court does not even state that the motion was heard upon the affidavits filed in its support, but waiving the procedural question (Indicating as contended by the plaintiff’s attorney in our case that only affidavits should be used and not the testimony of the witness) it is clear that the purport of these several affidavits is an attempt to impeach the verdict signed by the individual jurors. That this cannot be done has been repeatedly held by this court as shown by the following cases.” (Citing several of the cases noted above and adding thereto Corrigan v. Rockefeller, 67 Oh St 354.)

Marshall, C. J.,

dissents from the Long case, supra, claiming that “the text-books and digests are all in harmony with the proposition that mistakes which are not related to misconduct or wrong-doing should be corrected * * *” (Citing cases.)

A new and important aspect is added to the non-impeachment rule in the case of Phillips v. Board of Education, 21 Oh Ap 194 (2/4/1924), Judge Cushing of the Court of Appeals of Pickaway County, after affirming the non-impeachment rule, added in his opinion: “These cases were decided prior to the amending of the Constitution in 1912, and the enactment of the law that three-fourths of the jury could return a verdict. The question presented is somewhat different from the facts in the decided cases. The case here presents the question of the minority of the jurors seeking by indirect methods to nullify the act of the majority. All that should be said on this question is that such acts are contrary to the spirit of our institutions and deserve just condemnation.”

In our case only one juror was called to testify. He was not allowed to testify and the only evidence we have is the proffer of this one juror. He signed the verdict. Even if he had not signed the verdict, he alone cannot change the verdict for any reason whatsoever.

The non-impeachment rule is again upheld in Schwindt v. Graef, 109 Oh St 404 (2/26/1924), the opinion being written by Judge Robinson. Marshall, C. J. and Allen, J. dissent.

In this case one of the jurors, the balloting then being 8 to 4, Juror S. who was voting with the minority, tossed a coin saying if it came up “heads” he would continue voting with the minority. It came “heads.” He so voted on the next ballot. Juror S. did not sign the verdict. The syllabus of the case states the fact that the juror “did not join in the verdict does not exempt such evidence from the operation of the rule. The legislature, and not the courts, is empowered to modify or abrogate the rule.”

The dissent by the Chief Justice is on about the same grounds as his dissent in the Long case, noted herein. Judge Allen dissents also.

A new application of the non-impeachment rule is found in Corrigan v. Rockefeller, 67 Oh St 354 (1902). After discussing the rule and agreeing with it, Judge Spear applies it to an arbitration case. The third syllabus reads: “Nor is the testimony of the arbitrators in such case competent evidence to impeach the award.”

In more or less chronological order, we come to the case of Emmert v. State, 127 Oh St 235 (11/8/1933), 187 N. E. 862, 90 A. L. R. 242 (Where a valuable annotation is found at page 249). This case reverses 13 Abs 703. This is the test case which we will notice at length and all subsequent Ohio cases will be passed over briefly as they do not seem to embody any new law. The facts in this case, in brief, are as follows:

Emmert was the Sheriff of Lucas County and was being tried for having presented falsified accounts. He was found guilty. The third error was to the effect that the trial court refused to hear the evidence of jurors tending to prove that the bailiffs in charge of the jury unlawfully communicated with some members of the jury to the prejudice of the accused. Jurors M. and L. offered affidavits wherein they told of the Bailiffs, in charge of the jury, while the jury was outside the jury room getting dinner, asking “which way we were going.” When told that the jury then stood 9 to 3 for acquittal, one of the bailiff’s said: “My God, you are all wet. Judge Stahl expects you to return a verdict of guilty and if you don’t, it will be just too bad.” The juror having replied to the Bailiff that there was not enough evidence to convict, the Bailiff said: “Good Lord, what evidence do you want?” One juror was told how to switch her vote. It was intimated that a verdict must be reached that night.

On motion for a new trial, the facts were set forth in affidavits and the jurors were offered as witnesses. This evidence was refused. The Court of Appeals affirmed the trial court. See 13 Abs 703.

The opinion is written by Judge Bevis, who is now President of Ohio State University.. The Ohio cases are largely reviewed, all of which, and more, are set forth in this opinion. The first case cited is the famous case of Vaise v. Delaval, 1 T. P. 11 (K. B.) decided by Lord Mansfield in 1785. This decision has been set out in full heretofore.

The opinion reads: “If, however (speaking of the privacy of the jury room) protection of the privacy of deliberations be regarded as the chief end to be subserved in this connection, there seems no good reason why jurors may not testify as to events transpiring outside the jury room or which constitute no part of their deliberations.”

The case of Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 36 L. Ed. 917, was relied upon by the court. In the Mattox case, a Bailiff had said to a juror: “This is the third fellow he (the defendant) has killed.” The holding was that a juror may testify to “extraneous influence.”

Referring to Hulet v. Barnett, supra, also an outside interferenee case — by a constable — the court said: “In so far as such expressions (In the Hulet case) are in conflict with the present holding the Hulet case is overruled.” While recognizing the non-impeachment rule, the syllabus and opinion declared that the rule does not apply to “acts done or communications made to members of the jury, outside the jury-room, or apart from their deliberations * *

Within a month after the decision of the Emmert case, Diersing v. Railway Co. 31 N. P. (n. s.) 358 is reported. The second syllabus reads: “Affidavits of jurors, unsupported by other evidence, held admissible as to misconduct occurring outside the jury room” Here, there were improper communications to the jury from the officers of the court.

On April 10, 1937, Judge Geiger of the Court of Appeals of Franklin County — our own Appellate District — decided Lund v. Kline, 24 Abs 387. This was a quotient verdict case. The first syllabus reads: “Where a motion for a new trial is based upon the claim that the jury reached a quotient verdict and it is sought to prove this fact by the exhibition and identification of ballots, although indicating that a quotient verdict has been returned, are not sufficient to justify the setting aside of the verdict.” The cases on non-impeachment are reviewed again. (Emphasis ours.)

The Lund case was reversed by Supreme Court in 133 Oh St 317, but not upon the point quoted in 24 Abs 387. The Supreme Court said: “The vitiating element in a ‘quotient verdict’ is not the acceptance of the quotient figure, but rather in the prior agreement to be bound by such figure, regardless of what it may be * * * Proof of a prior agreement to be bound by the quotient verdict cannot be furnished by affidavits or testimony of the jurors themselves, but must be by evidence aliunde * * * Misconduct of a jury will not be presumed, but must be affirmatively proved * * * Clear and positive evidence aliunde is necessary to overcome this presumption. The retrieved ballots and slips of paper do not furnish such evidence. The affidavits of the jurors were therefore properly excluded.” (Emphasis ours.)

Judge Hart writing the opinion in State v. Adams, 141 Oh St 423 (4/28/1943) distinguishes it from the Emmert case, supra, saying: “Here, there is no misconduct on the part of the jurors themselves and their testimony was not offered for the purpose of showing misconduct of any one of their members * * * The testimony related solely to the misconduct of an officer of the court while in their presence * * * The fact that in this case the communication took place in the jury room rather than outside” * * * is distinction without a difference.

In the last case, Wicker v. City of Cleveland, 150 Oh St 434 (12/15/1948), the non-impeachment rule is followed. In this case, Weygandt, C. J. wrote the opinion. Here, a lady juror who went past the place of the accident reported to the jury: “I passed by there and I didn’t notice any depression.” The opinion states: “In the instant case the alleged misconduct is that of a juror. Shall the rule be extended?” The answer is “No.” The Chief Justice follows 39 O. Jur. Trial, 382 and 384, page 1110.

This concludes this part of a much extended opinion. There being no evidence aliunde in this case as to the misconduct of the jury or jurors, therefore, this part of the motion for a new trial must be overruled.

CROSS-EXAMINATION OF DEFENDANT IN BASTARDY CASE

The attorney for complainant called the defendant, as for cross-examination, for his first witness. The attorney for defendant objected but the Court permitted the Cross-examination, believing that the matter was essentially civil and that the same was allowable under §11497 GC.

We had prepared in advance, a charge to the jury and expected to, and did give the charge, wherein we described the nature of a bastardy case. The charge in part reads as follows:

“I charge you this action is one which is called an action in bastardy. It is purely a statutory remedy provided by law in such cases. A bastardy proceeding, such as this case, is authorized for the benefit of the mother of the illegitimate child. The remedy thus provided is the mother’s exclusive remedy in such matters.
“This action is called by the court, a quasi-criminal action for the reason that the action has some of the characteristics and essentials of a criminal action and also has some of the characteristics and essentials of an ordinary civil action. To indicate, the action is styled, using the name, the “State of Ohio.” This is the same as in a criminal case. Likewise, the matter in dispute is brought to an issue by the defendant being arraigned and asked to plead either guilty or not guilty to the charge previously filed by the complainant. Here, again you have procedure in a criminal matter. This will be noted once more when you come to render your verdict. The verdict, you will be told later, shall be either guilty or not guilty. This action is begun by the filing of a complaint, that is, an affidavit signed by the complainant, which in this case, was signed by Mary Hetzler. This is the only pleading filed by either party. The plea of “not guilty” on the part of the defendant, puts in issue the entire matter. We state to you that the action is not a criminal action but only a quasi-criminal action, meaning that it has the above features of a criminal action. These statements are made to enlighten you where you might be confused.
“Despite what we have just stated, the action is essentially and actually a civil action, which, when the issue is made up as aforesaid, casts upon the complainant the duty of proving the material allegations of her complaint by a preponderance of all the evidence.”

No objection was made by either party to the charge, altho we asked for errors of commissions or of omissions. Upon request, we did charge upon the question of there being no need for corroboration of the complainant’s testimony. Otherwise, the charge was accepted without objection.

The charge above is set out because it indicated as well as anything the nature of an action in bastardy. Judge Vickery adds other characteristics.

Now, the attorney for the defendant relies heavily upon Schneider v. State, 33 Oh Ap 135, 168 N. E. 568 (10/7/1929) decided by Court of Appeals of Cuyahoga County. Judge Vickery wrote the opinion which is concurred in by Judges Sullivan and Levine. The fifth syllabus reads as follows:

“In bastardy proceeding, it is reversible error to permit defendant to be called by counsel for the complainant and over his objection and compel him to testify against himself.”

If this be correct law, provided we are compelled to follow it, then this is the end of the argument on the proposition last indicated.

We realize that we are presumptious to question the decision. We feel that the decision is not consistent within itself. It makes too many admissions as to the action being a civil action instead of criminal.

After admitting that a three-fourths .verdict is proper in such a ease, the court says for this purpose it is a civil case. Next, the court admits that it only requires a preponderance of the evidence to decide the matter. We never heard of any criminal case being decided by a vote of nine or more jurors. There is no such case. When did courts begin to charge juries that the defendant can be found guilty by the preponderance, or the greater weight of the evidence? We wonder if professional criminals and their lawyers have heard of this new rule on the quantum of evidence in a criminal case. Why does the court talk about the “spirit of our institutions” when it so glibbly changes the degree of proof making it easy to convict a defendant.

Judge Vickery says: “Now, so careful have the courts been of the right of an individual who is charged with an offense, that he shall not be compelled to testify against himself that it has long been recognized in Ohio that no defendant who was charged in a bastardy proceeding was ever called upon against his wishes to testify, that is, compelled to testify at the instance of the complainant.” (Emphasis oars.)

Here, the court uses the word “right” instead of the “spirit of our institutions” and speaks of an “offense” with which the individual is charged. This is begging the question. We concede that if the charge is an “offense” then, of course, the defendant cannot be compelled to be a witness against himself. The defendant, charged with a crime — sometimes in Ohio called an “offense” — has the protection of the Ohio Constitution, Art. I, Sec. 10.

Most of the opinion in the Schneider case is obiter dictum being based upon the false assumption that an action in bastardy is a crime.

Before we discuss what is a crime as defined by the books, let us consider some other admissions made by the court on the nature of a civil action. The opinion states:

“In this connection it might be well to say, so as to distinguish it from a criminal case, that in case the defendant were acquitted, that is, found not guilty, there is nothing in the law that would prevent the complainant from making a motion for a new trial on any grounds upon which such motion might be made in civil cases, and that, if the court granted the motion, the defendant might be tried again and he could not plead former jeopardy. In other words, unlike the ordinary criminal case, in which, if the defendant is acquitted, no matter how erroneous the finding of the jury may be or the rulings of the judge, no action that the judge would take or that the reviewing court would take would re-establish that case against the acquitted defendant. He is acquitted for all time.” (Emphasis ours.)

The court seems to divide criminal cases into ordinary and “extraordinary” cases. The latter must mean quasi-criminal. A case is either criminal or civil. But a case may have the attributes of both a civil or a criminal action. In the final analysis it must be one or the other. It cannot be both.

The above quotation, it seems, is one of the best arguments that can be made, that a bastardy action is a civil action. In an “ordinary” criminal action, if the State fails to convict, altho a great mistake of law has been made, still the defendant cannot be tried again. If the exceptions made by the State are sustained, it has no effect on the case in which the exceptions were taken, but the rule of law established is a guide to the next similar case. This is a far cry from indicating a criminal action.

The court complains that “we do not find * * * anywhere in Ohio where a man has been compelled to testify at the instance of the complainant.”. Even, if this is correct, what does it mean? There is always a first case. The argument is a negative one.

The court says “There are a great many cases in Ohio where the courts have held that in a quasi-criminal action it was error to compel the defendant to testify over his objection — none perhaps being a case like the instant case.” Continuing, the opinion said “no one would attempt to make a defendant testify against himself.” But the learned Judge does not cite a single case out of the “great many” cases. (Emphasis ours.)

Looking at Part Third: Remedial Title IV, Procedure in the Common Pleas Court, we find Nine Divisions. Division Eight is entitled Quasi-Criminal Actions. In Division Eight, we find Amercement, Bastardy and Contempt of Court. (Emphasis ours.)

The court in the Schneider case, supra, after stating there is no case like the instant case immediately turns to the consideration of cases in contempt. Of course, we agree that the defendant in a contempt case — the same being out of the presence of the court — cannot be cross-examined. But this is not a contempt case.

Again, the Schneider case admits a bastardy “action is prosecuted for the benefit of the putative mother for her care, maintenance, and so forth, and the benefit of the judgment is to her.” How could a mother be putative? She is known.'

Atloecz v. Coma, 15 Abs 363 (1932), Court of Appeals of Summit County says that “it is now settled in Ohio that such proceedings (bastardy) are controlled by the code of civil procedure.”

Durst v. Griffith, 43 Oh Ap 44 (1932) the Court of Appeals of Hocking County, Syllabus 2: “While some of the procedure in a bastardy case is similar to that in a criminal case, the procedure is a civil one.”

State, ex rel. Wernery v. Lageman, 77 N. E. (2d) 478, C. P. Court of Hamilton County is a decision by Judge Hess, decided January 5, 1948. The fourth syllabus is as follows:

“A bastardy proceeding is in the category of “civil cases” and should follow civil trial procedure. The opinion: “The decisions in Ohio and other jurisdictions actually have eliminated the quasi-criminal feature and placed bastardy proceeding in the category of civil cases. If it is civil in its nature then it should follow civil trial procedure. Any other conclusion would lead to unnecessary confusion.” (Emphasis ours.)

According to Reams v. State ex rel Favors, 53 Oh Ap 19 (2/14/1948) by the Court of Appeals of Logan County: “A bastardy proceeding is a civil action in which a verdict may be rendered by the concurrence of three-fourths of the jury, and only a preponderance of the evidence is necessary to justify a verdict of guilty.” (Emphasis ours.)

Sec. 11497 GC, “At the instance of the adverse party, a party may be examined as if under cross-examination, either orally or by deposition, like any other witness.”

Who is an “adverse party”? “Adverse party” is defined in 2 Words and Phrases, p. 568 as follows: “The term ‘adverse party’ is construed to embrace any person whose personal or property or other right may be adversely affected by the operation of the judgment or the final relief sought in the proceeding.” Weeks v. Berschauer, 140 Kan. 241, 36 P (2d) 81.

In the case of Bates v. Flath, 81 Oh Ap 188, 36 O. O. 511, it is held that §11497 GC is a remedial statute giving “a party the right to cross-examine the adverse party and should be construed liberally.”

Surely, the defendant in a bastardy action is an “adverse party” to the complainant, who, since the amendment in 1923 and thereafter (117 Oh. L. 808 and 119 Oh. L. 735) is the sole beneficiary under the bastardy act. The last amendments have removed from §12123 GC all aspects of a criminal case and non-support of an illegitimate child now comes under' §13008 GC, which is really criminal.

Sec. 13441-1 GC Rules applicable to criminal cases: “The rules of evidence in civil causes insofar as the same are applicable, shall govern in all criminal causes, except as otherwise provided in this code.” (Criminal Code.) This statute covers §11497 GC, even if a bastardy case be criminal in its nature, thus, permitting the defendant to be called for cross-examination.

In State, ex rel. Beebe v. Cowley, 116 Oh St 377 (4/12/1927) the opinion by Judge Jones makes clear the adverse character of such a proceeding. After the amendments of 1923, he says, “the defendant (shall) pay to the complainant such sum as the court may find necessary for her support, maintenance and necessary expenses caused by the pregnancy and childbirth.” It is her support. Formerly, the State of Ohio was an interested party to see that the illegitimate child did not become a public charge. Continuing: “Prior to the amendment (1923) the statute provided that the reputed father of the illegitimate child should stand charged with its maintenance in such sum as the court orders * * * But as the statute now stands, that provision (for the child’s support) has been eliminated and in lieu thereof provisions are made for her (mother’s) support.

Could there be any action more adversary than the present bastardy action? The judgment is now no different than a judgment upon an account for money only. True, the reputed father has the duty to support his child. It is his moral duty and the State will see that he supports it by the non-support machinery of the statutes. Sec. 13008 GC.

WHAT IS A CRIME?

Miller on Criminal Law (1934), page 16, says:

“Crime may be generally defined as the commission or omission of an act which the law forbids or commands under pain of a punishment to be imposed by the state by a proceeding in its own name. In most cases the law requires that the commission or omission of the act must be accompanied by an unlawful intent.”

For further definitions of a crime or an offense: See 12 O. Jur. Criminal Law, pg. 44, Sec. 3. 1 Wharton on Criminal Law Sec. 14, 16 C. J. Sec. 1, 22 C. J. S. Sec. 1: “A crime is a wrong directly or indirectly affecting the public to which the state has annexed certain punishment and penalties, and which is prosecuted in its own name in what is called a criminal proceeding.” Also see 15 Am. Jur. Sec. 2 (Criminal Law.) ’

The nature of an act constituting a crime is defined in State v. Frazier, 37 Oh St 78 (1881) decided by Chief Justice Boynton. The act of May 4, 1859, attempted to confer jurisdiction upon the Probate Court in a matter of keeping of the peace. The court was not allowed to take jurisdiction because an action on a peace warrant is not a crime or a misdemeanor. The Probate Court only had jurisdiction over crimes and misdemeanors. In the opinion: “The jurisdiction which that act conferred related wholly to crimes and misdemeanors (Speaking of the jurisdiction of the court). These are offenses against the statute involving punishment therein prescribed. They are acts of commission or omission in violation of law forbidding or commanding them. The object of a peace proceeding is to obtain security against the commission of a crime from whose conduct is such as to afford a reasonable ground to believe that he contemplates an offense against the person or property of another. Such conduct, however, is not a crime or misdemeanor within the meaning of the statute * * *.” (Emphasis ours.)

There are but two kinds of actions, civil and criminal. It is evidence that a bastardy action is not criminal, therefore, it must be civil and subject to the rules of a civil trial.

Again, the defendant took the stand of his own accord and as part of his own defense. His testimony then was the same as when he was being crossed-examined. There was no prejudice against the defendant in any manner by his being cross-examined. If there was any error in his being cross-examined, did he not waive it when he voluntarily took the stand in his own defense? There was no motion to strike out the cross-examination.

Therefore, on the second ground also, we over-rule the motion for a new trial.

AGENDA

November 20, 1951.

It will be noticed that the above decision by us was rendered on May 10, 1950. No appeal was taken from our decision.

Only two days ago, we received Volume 59 of Ohio Law Abstract and on page 113, Syl. 1 we read the following:

“1. Sec. 13444-3 GC and Art. I, Sec. 10 of the Ohio Constitution are not violated by calling the defendant on cross-examination in a bastardy proceeding on the theory that such a proceeding is a criminal case.”

The above is quoted from the syllabus of the case of State, ex rel. Simons, plaintiff-appellant v. Kiser, defendant-appellee, decided on November 24, 1950 by the Appellate Court of Darke County, Ohio. The opinion is written by Wiseman, J., and is concurred in by both Miller, J., and Hornbeck, J. This decision comes from our own appellate district. The Schneider case, supra is cited but the Second Appellate refuses to follow the Schneider case. There does not appear to be any certification on account of a conflict.

Therefore, we now have two appellate decisions on the same proposition of law. Our own reasoning may be helpful in making a choice.


author: By THE COURT: By THE COURT: By THE COURT:

text:
    BAKER et, Plaintiffs-Appellants, v. MOHLER et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2154.
    Decided April 22, 1952.
    George F. Holland, Dayton, for plaintiffs-appellants
    Nolan & Boesch, Dayton, for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal from an order of the Common Pleas Court sustaining a demurrer to plaintiffs’ petition.

The demurrer was upon one of the statutory grounds of §11309 GC:

“That it appears upon the face of the petition that there is another action pending between the parties hereto for the same cause.”

The entry from which the appeal is prosecuted recites only that the Court sustains the demurrer. There is no election to plead further nor is there any dismissal of plaintiffs’ petition. There is, then no final order or judgment from which an appeal can be prosecuted. Holbrook v. Connely, 6 Oh St 199; Hendrickson et al v. Galbreath, 27 Abs 422; Lyman v. Welfare Finance Corp., 39 Abs 55; Davis v. Columbia Gas & Electric Corp., 34 Abs 473; Liesman, Admr. v. Brookville, 32 Abs 343; Robbins, et al v. City National Bank & Trust Co., 29 Abs 647.

The Court, therefore, on its own motion, dismisses the appeal.

Decided May 3, 1952.

Decided May 29, 1952.

For the benefit of counsel although what we say is purely obiter dictum, it is our judgment that the demurrer was properly sustained. There are some technical aspects of the ground of the demurrer as related to the facts pleaded which makes the question somewhat difficult. However, it is apparent that the parties in the instant action are the same as in the former action and it is also patent that if the plaintiffs are entitled to the relief sought they can assert their right and receive their remedy in the action on the note and to foreclose.

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

ON ENTRY OF DISMISSAL FOLLOWING APPEAL

No. 2154.

OPINION

By THE COURT:

Our attention is directed to an entry of dismissal in this case following the first notice of appeal. This is a final order which requires an adjudication of the error assigned.

We expressed our opinion on the question presented in our former decision which we now adopt. No error to the prejudice of appellant was committed by the sustaining of the demurrer to plaintiff’s petition.

The judgment will be affirmed.

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

ON APPLICATION FOR REHEARING

No. 2154.

OPINION

By THE COURT:

Submitted on application of appellants for rehearing on our opinion affirming the action of the Common Pleas Court in sustaining a demurrer to plaintiff-appellants’ petition.

The ground of the demurrer is that:

“It appears upon the face of the petition that there is another action pending between the parties hereto for the same cause.” (Emphasis ours.)

Appellants rely heavily upon Allen v. Streithorst, 87 Oh Ap 292, affirmed in 154 Oh St 283. The facts in this case do not parallel those in the instant ease nor is the question of law identical. In the cited case, the question presented required a construction of §11831 and §11635 GC and whether or not they contemplate that an action to set aside a judgment after term must be instituted by petition in the same action in which the judgment was entered. The Court of Appeals of Hamilton County certified the Allen v. Streithorst case to the Supreme Court as being in conflict with Schedenhelm v. Myers, 77 Oh Ap 385; 68 N. E. (2d) 331, Seneca County and Terry v. Claypool, 77 Oh Ap 77; 65 N. E. (2d) 883, Hancock County. In these two conflict cases, the Appellate Courts had held that the Common Pleas Courts were without jurisdiction to consider and determine the petitions to vacate the judgments. The petitions had been filed in proceedings separate from the actions in which the judgments were pronounced. The Supreme Court rejected the jurisdictional contention and held that the action could be filed either as a petition in the original suit or by an independent proceeding. It should be observed that the Court was construing special statutory proceedings designed solely to vacate a judgment and to secure a new trial after term.

The action here is not at law to vacate a judgment which vacation has been accomplished by its reversal but in equity to set aside a sale of real estate. The demurrer does not challenge the jurisdiction of the Common Pleas Court to grant the relief prayed.

The question which bothers us now and concerned us when we wrote our first opinion in the case is not that which was presented in Allen v. Streithorst but the application of the language of §11309 (4) GC, setting forth the ground of demurrer which has been interposed. Allen v. Streithorst did not hold that there were two causes of action available to the petitioner but that one cause of action at law could be instituted in either of two proceedings. To that extent the cited case is helpful. At the time the Common Pleas Judge passed upon this demurrer he did not have availaole the opinion and judgment of the Supreme Court in Allen v. Streithorst and may have relied, in part, at least on the conflict cases.

As we view this demurrer the decisive language is that which we have underscored, namely; is plaintiffs action in the Common Pleas Court one pending between the parties for the same cause as the cause at issue in the original action for judgment and foreclosure?

Upon further consideration, we have concluded that it is not the same cause. Clearly, the parties are the same but unless and until the defendants in the original case, the plaintiffs here, raise the issue asserted in their action to set aside the sale that cause of action would not be involved. We are clearly of the opinion, as heretofore indicated, that the plaintiffs could assert their claim of right to set aside the sale in the original proceedings and it would seem the practical and feasible thing to do. But they may not be compelled to do so.

If they have the right to institute their action by separate suit, then, the demurrer was improperly sustained.

The action to set aside the sale is of equitable nature different from any cause of action involved in the original suit when the demurrer was filed, and for that reason the ground of the demurrer is not well taken.

We grant the rehearing and reverse the judgment for the reason that the demurrer to the petition was improperly sustained.

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


author: By PHILLIPS, J.: By SKEEL, PJ.

text:
    GOGAN, Deceased: Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22235.
    Decided October 8, 1951.
    McConnell, Blackmore, Cory & Burke, Cleveland, for plaintiff-appellee.
    Corrigan, McMahon & Corrigan, Cleveland, for defendant-appellant.
    (PHILLIPS, J, of the 7th District, sitting by designation in place of Hurd, J.)
   OPINION

By PHILLIPS, J.:

The question presented for our consideration and determination by appellant’s appeal on questions of law, is the interpretation of §10509-134 GC, and the action of the Probate Court in refusing to allow appellant to file his petition for authority to present an alleged claim with the Administrator more than four months after the latter’s appointment.

Sec. 10509-134 GC as amended, effective Aug. 22, 1941, as it applies to presentation of claims presented more than four months after appointment of administrator, provides as follows:

“A claimant who has failed to present his claim to the executor or administrator within the time prescribed by law may file a petition in the probate court for authority to present his claim after the expiration of such time. Such petition forthwith shall be assigned for hearing, and at least five days before the date of the hearing, the claimant shall give written notice thereof to the executor or administrator and to such other parties, if any, as the court may designate. If upon hearing the court finds (a) that the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by law, or (b) that the claimant’s failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or was due to any wrongful act or statement on the part of the executor or administrator or his attorney, or (c) that the claimant was subject to any legal disability during such period or any part thereof, then the court may authorize such claimant to present his claim to the executor or administrator after the expiration of such period; provided, however, that a claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, including devisees, legatees and distributees, and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims. * *

The evidence discloses that the administrator was appointed on July 21, 1950 and that later on August 17, 1950, he was appointed administrator with the will annexed and that appellant filed his petition for authority to present his alleged claim to the administrator on February 24, 1951 which petition was subsequently dismissed by the Probate Judge. Further, the evidence shows that between July 17, 1950 and January 23 1951, appellant was continuously held without bail and at all such times imprisoned in the Cuyahoga County jail under an indictment for murder in the first degree, of which crime he was acquitted by a jury on January 23, 1951 and thereafter discharged.

Appellant claims that during the four month period allowed by §10509-112 GC, for presentation of his claim, he was under legal disability as defined in §10509-134 GC, and therefore was excused from presentation of his alleged claim during the four month period immediately subsequent to the appointment of the administrator.

Examining §10509-134 GC, we note that sub-section (e) thereof pertains to the rights of claimants under any legal disability during the stated statutory period for filing claims. “Legal Disability” as used in the Probate Court Act is specifically defined in §10512-2 GC:

“The term ‘legal disability’ as used in this act shall include the following: (a) persons under the age of twenty-one years; (b) persons of unsound mind; (c) persons in captivity; (d) persons under guardianship of the person and estate or either.”

Sec. 10509-134 GC, and §10512-2 GC, must be read and construed in pari materia. See: In re estate of Gress, 40 Abs 172, 28 O. O. 168; Home Owners Loan Corporation v. Doolittle, 57 Oh Ap 329.

Two members of this Court believe that a person confined in a county jail, as was appellant, is ‘a person in captivity’ as defined in §10512-2 GC, and therefore that appellant was under legal disability until January 23, 1951. See: In re Pontius, 6 Oh Ap 249, a habeas corpus proceeding in which the Court declared that:

“Any restraint of one’s personal liberty is sufficient to constitute imprisonment and any restraint of a person by another against his will is imprisonment as contemplated by law.”

While it is true that the permissive word ‘may’ rather than the mandatory word ‘shall’ is used in §10509-134 GC designating the authority of the Probate Court to permit appellant to file his alleged claim with the administrator more than four months after his appointment, none the less, in view of the clear showing of legal disability on appellant’s part, we are constrained to hold in construing §10509-134 and §10512-2 GC, together, that the Probate Court abused its discretion in dismissing appellant’s petition for authority to file his alleged claim with the administrator.

The judgment of the Probate Court is therefore reversed for the reasons stated herein.

The cause is remanded for further proceedings according to law. Exceptions noted. Order see journal.

THOMPSON, J, concurs.

SKEEL, PJ, dissents.

DISSENTING OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a final order of the Probate Court overruling appellant’s motion for leave to file a claim against the Estate of Hazel M. Gogan, deceased. The appellant was the husband of the deceased.

Prior to her death, the appellant and the deceased entered into a separation agreement, whereby the appellant agreed to pay the deceased certain monies, the debt to be evidenced by notes and secured by collateral. By the agreement, the amount payable was contingent upon the life of Hazel M. Gogan.

The deceased died July 17, 1950. The appellant was pharged with murder in the first degree as a result of her death. He was confined in County Jail on such charge from July 17, 1950 until his acquittal on January 23, 1951.

The Probate Court appointed William C. Blaekmore, Administrator of the estate of Hazel M. Gogan on July 21, 1950 and later, to-wit on August 17, 1950, he was appointed administrator with the will annexed. The appellant was, by the will, named as executor as well as beneficiary. While in the County Jail, to-wit, on August 5, 1950, the appellant executed and caused to be filed in Probate Court on August 17, 1950, a declination to act as executor and renounced any right or claim to the estate, either under the will or by statute and reaffirmed paragraphs 7, 8 and 9 of the separation agreement, which provisions waived any right or claim to any part of the estate of Hazel M. Gogan.

After his acquittal, the appellant on February 24, 1951, filed a petition for authority to present claims against the estate of Hazel M. Gogan. The claims set out in the petition were three in number:

1. The return of two life insurance policies or endowment agreements with The Sun Life Assurance Company of Canada which had been deposited with the deceased as in part required by the separation agreement.

2. The return of certain promissory notes claimed to have been cancelled by the provisions of the separation agreement as a result of the death of Hazel M. Gogan.

3. The return of three pictures claimed to be the property of the appellant.

As to the first of these claims, the petition alleges that the administrator has collected the entire surrender value of the policies amounting to the approximate sum of $71,-000.00, although a part of the debt for which the policies were assigned to secure was cancelled under the terms of the separation agreement by the death of Hazel M. Gogan. There are, therefore, allegations in the petition, which if true, could not be reached by filing a claim against the estate.

Upon trial, the appellant in effect explained his failure to file his claim within the time prescribed by §10509-112 GC (four months) because he was under disability as defined by §10512-2 GC. That is, that being in the county jail awaiting trial for murder which under the circumstances was not a bailable offense, he was “in captivity.”

There was some evidence before the trial court and that court in its opinion commented upon the fact that the appellant did have access to the outside world through counsel and friends and could have filed such claim, knowing the administrator had been appointed, but did not do so because of the supposed detrimental effect it would have in the trial of the murder case. He, therefore, knowingly failed to file his claim.

The statute (§10509-134 GC) giving authority to the Probate Court to permit a claimant to file a claim with the administrator of an estate after expiration of the four months period from the date of his appointment, is permissive only and gives the court broad discretionary powers. It provides in part that:

“if * * * the claimant was subject to any legal disability enuring such period or any part thereof, then the court may authorize such claimant to present his claim •* *

The right to file such claim rests within the sound discretion of the court. While the right to have alleged claims judicially determined should transcend all other considerations, no matter what the surrounding circumstances may be, especially where no one’s rights have been prejudiced by the delay, the only grounds upon which a reviewing court can reverse an order refusing the right to file a claim, is by holding that such refusal constituted an abuse of discretion. Under all the circumstances of this case, there is no such showing. The order should, therefore, be affirmed.


author: By HORNBECK, PJ:

text:
    ROYAL JEWELERS, Inc., Plaintiff-Appellee, v. TANNER and VICTORY MOTOR EXPRESS, Inc., Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2170.
    Decided April 10, 1952.
    Shaman, Winer, Shulman & Ziegler, Dayton, for plaintiff - appellee.
    William A. Swaney, Dayton, for defendant-appellant, Victory Motor Express, Inc.
   OPINION

By HORNBECK, PJ:

The appeal is prosecuted by the defendant-appellant, Victory Motor Express, Inc. The judgment under review was entered by the Municipal Court of the City of Dayton, Ohio, on behalf of the plaintiff and against defendant-appellant.

The cause of action was predicated upon a check drawn upon The Farmers Bank, New Lebanon, Ohio, the maker of which was defendant-appellant, payable to Maynard Tanner who endorsed the check to plaintiff. The Statement of Claim alleges that:

“Payment of said check was duly demanded at the bank upon which it was drawn at maturity but same was not paid because the defendant,' Victory Motor Express, Inc. had the payment stopped on same.”

Default judgment was also taken against defendant Maynard Tanner.

There is no dispute in the evidence. The facts developed disclosed that there was no consideration for the check although this was not known when it was drawn by the duly authorized agent of the defendant. However, Tanner received value from the plaintiff when he had it cashed and if the check is a negotiable instrument the plaintiff was a holder in due course. Prior to the time of its presentment for payment, the maker had stopped payment on the check. Thereafter the endorsee made demand for payment both upon appellant and upon Tanner. Payment being refused, the action was instituted. As we understand the contention of the defendant, the determinative question presented is whether the check here under consideration was a negotiable instrument.

It is further developed that the check was cashed by the plaintiff on the day that it was drawn and Tanner endorsed it on that day, applying some of the proceeds on an old account, some on a purchase made at the time and receiving the balance in cash. Pour days after the check was given, the maker instructed the bank not to pay it, and when the endorsee presented it to the bank upon which it was drawn, payment was refused.

We shall not labor the question nor attempt to cite extended authorities because, we believe that, it is clearly determined by the applicable and controlling sections of the Negotiable Instruments Act.

Sec. 8290 GC defines a check:

“A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this division applicable to a bill of exchange payable on demand apply to a check.”

Sec. 8231 GC defines a bill of exchange as:

“an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer.”

A bill of exchange and a check are included in the term “commercial paper.” 10 C. J. S. 406. A check is a complete negotiable instrument. Kullberg Mfg. Co. v. Smith, et al. Affirmed. 216 N. W. 249. This check was due and payable, on demand, at the bank upon which it was drawn.

Sec.. 8165 GC provides:

“By making it, the maker of a negotiable instrument engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse.” and §8166 GC provides:
“By drawing the instrument the drawer admits the existence of the payee and his then capacity to indorse: and engages that on due presentment the instrument will be accepted and paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who is compelled to pay it.”

In Cummings v. Kent, 44 Oh St 92 it is held that:

“By the act of drawing and issuing a bill of exchange, the drawer contracts that it will be accepted and paid according to its terms, and that if it is not he will pay it.”

A holder in due course is defined by §8157 GC. The plaintiff here meets all of the requirements of the statute as to a holder in due course. The second condition in the section is applicable “that he became the holder of it before it was over due and without notice that it previously had been dishonored, if such was the fact.”

The extent to which an indorsee of a negotiable instrument in good faith will be protected is illustrated by the syllabus to the Miller Bros. Star Shoe Co. v. Griffiths, 11 Oh Ap 277;

“One who purchases of the payee in good faith by indorsement and delivery for value, before maturity, a negotiable promissory note without notice of any infirmity in the instrument or defect in the title, is a holder in due course, even though a receiver of the property of the payee had been appointed and qualified, the purchaser having no knowledge of that fact, and the receiver never having been in actual possession of the instrument.”

We have examined the cases cited by appellant but find that they are not applicable to the factual development here. Some of them make differentiation between checks and other types of negotiable instruments. Some of them treat of the right of the maker as between him and the payee to stop payment on a check. Speroff v. First Central Trust Co., 149 Oh St 415; Charles Conn, Jr., v. Walton, 46 Oh St 195. One relates to the liability of a bank which honored a check after it had been notified not to pay it. The C. H. & D. R. R. Co. v. Metropolitan National Bank, 54 Oh St 60. No one of them is in derogation of the express terms of the sections of the Code which we have quoted.

There is no error in the judgment from which the appeal is taken in this case.

It will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By MATTHEWS, J.:

text:
    IRWIN, Admx., Plaintiff-Appellant, v. ALBERS SUPER MARKETS, Inc., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7273.
    Decided July 10, 1950.
    Fred W. Murphy, Cincinnati, for plaintiff-appellant.
    Rendigs, Frey & Kiely, Cincinnati, for defendant-appellee.
   OPINION

By MATTHEWS, J.:

This is an action by the Administratrix of Wilbur Irwin, deceased, against the defendant for wrongfully causing his death. At the conclusion of all the evidence, the court sustained the defendant’s motion for an instructed verdict, entered judgment on the verdict, and overruled the motion for a new trial. This appeal is from that judgment.

It was admitted that the defendant was operating a double truck, weighing 30,000 pounds, consisting of a tractor and two trailers and a dolly, about sixty feet in length, southwardly on Wright Road in Lockland, on October 26th, 1948, between six and seven o’clock in the morning, and that a collision took place between the truck and the person of Wilbur Irwin, and' that he received injuries which caused his death. There is no dispute that it was a very foggy morning and that the range of visibility was very short, some witnesses placing it as low as 25 feet, and none greater than 75 feet.

There is evidence that the defendant was traveling at from 40 to 45 miles per hour. Wright Highway is composed of two parallel roadways, 22 feet wide, paved with concrete and divided by a grass strip 20 feet wide. As the defendant’s driver was proceeding along the strip for southbound traffic, near the west curb, he saw a dark object at a distance of at from 50 to 75 feet, in front of him, which it later developed was a Model A. Ford automobile. He swerved to the left to avoid striking it, but the evidence is conflicting as to whether he succeeded. The driver testified that the truck did not come in contact with the parked Ford, but there is circumstantial evidence of damage to the left rear and side of the Ford and the right front of the truck, tending to prove that a collision did take place. There is evidence tending to prove that a collision had taken place a short time before between the Ford and another automobile at that place, and inferentially, to prove that the damage done in that collision caused the decedent to park the Ford where it was at the time the defendant’s truck arrived upon the scene. Whether any collision between either of these automobiles occurred does not seem to be very material, however. It is admitted that the decedent was somewhere near the Ford and that the defendant’s truck struck him inflicting injuries from which he died apparently without regaining consciousness.

The plaintiff alleged that the defendant was negligent in operating its truck at an excessive speed without having it under control, so as to be able to stop it within the assured clear distance ahead.

There is substantial evidence to support the allegations of negligence. Whether there is any evidence that such negligence caused the collision, or whether the collision was caused in whole or in part by the negligence of the decedent, are questions presented by this record.

The plaintiff introduced no evidence as to when decedent left his home or as to his destination. Apparently, he had no companion. There is no direct evidence that he had parked the Ford or that he had ridden in it to the place where it was parked. A pump was attached to the left rear wheel, presumably for the purpose of inflating the tire, but there is no evidence that the decedent attached the pump, was engaged in operating it, or near it at the time he was struck. The pump was not damaged.

The defendant’s evidence was that the decedent ran out from in front of the Ford into the path of the defendant’s truck and was struck by the right front fender and lamp as he was attempting to retrace his steps. His body was found after the collision about twenty feet in front of the Ford. A pair of spectacles was found some distance ahead of the Ford, but nearer to it than the decedent’s body.

As we construe the record, the only explanation of decedent’s conduct is found in this evidence of the defendant, and, if it is believed, we could not say that a jury would be unreasonable in drawing an inference of negligence on decedent’s part, directly contributing to the collision.

In determining whether the trial court was correct in directing a verdict for the defendant it seems pertinent to consider the effect of a lack of evidence by plaintiff as to decedent’s conduct and of the sole testimony on that subject being found in defendant’s evidence which, if believed, indicates negligence by decedent.

The inquiry relates to presumptions, inferences, and burden of proof.

Now in the absence of evidence, what conclusion is permissible as to decedent’s conduct?

It is clear that in the absence of evidence, neither the decedent nor defendant can be found to have been negligent. Bush v. Transfer Co., 146 Oh St, 657. This rule is variously stated. It is said that negligence is not presumed. It is also stated that there is an inference or presumption of due care. 29 O. Jur., 627. But, however phrased, it casts the burden upon the party charging negligence to prove it. The burden of proving contributory negligence rests upon the defendant in the absence of any inference of negligence arising from plaintiff’s evidence, as in this case.

Now the defendant having introduced evidence tending to prove contributory negligence as a matter of fact, but not as a matter of law, and the plaintiff having introduced no countervailing evidence, must the court accept as true the defendant’s evidence? Does the situation remove from the province of the jury the function of passing upon the credibility of the witnesses?

We find in 39 O. Jur., 838, that “Generally speaking a verdict cannot be directed in favor of the party chargeable with the burden of proof, unless the issue is admitted by the opposing party in such wise as to dispense with proof, or unless the law attaches to such evidence as is produced the quality of being conclusive proof.” And, in 53 Am. Jur., 251, that: “It has been held that since the plaintiff has the right to have the jury pass upon the credibility of witnesses and weight of testimony, although uncontradicted, the case generally cannot be taken from the jury, where the plaintiff has established a prima facie case, and the defendant invokes an affirmative defense based upon oral testimony.”

The presumption or inference of due care finds its most appropriate application in actions for wrongfully causing death where contributory negligence is relied on. Death has removed the one witness in the most favored position to explain the decedent’s action at the time of the accident. Frequently, no other witness is available. Under such circumstances, it would seem to be sound policy to consider the decedent free from negligence until the trier of the facts has passed upon the credibility of the witnesses, accepted their testimony as worthy of belief and then determined whether the decedent’s conduct as thus established conformed to the standard of reasonable care.

The defendant’s evidence, if believed, showed that decedent came from in front of the Ford for the apparent purpose of asking the driver of the truck for some assistance. He had a right to assume that defendant’s truck was proceeding at a lawful speed and it may very well be that the decedent’s inability to draw back out of danger resulted from the excessive speed of the truck. In that event he would not have been negligent. Furthermore, the jury might have concluded that defendant’s witnesses were not worthy of belief, or that their testimony was not inconsistent with the exercise of due care by decedent.

Our attention has been called to the case of Purdy v. Kerentoof, 152 Oh St, 391, recently decided. We think it supports our conclusion that the issues in this case should have been submitted to the jury. The'only difference in the facts is that in the Purdy case, there was no evidence that decedent did anything to avoid the collision, whereas, in the case at bar, the defendant’s driver testified that the decedent was trying to get out of the path of the truck at the time of the collision.

We have also been cited to Evegan v. Cincinnati Street Ry. Co., 85 Oh Ap, 138. We think the facts are not analogous. We pointed out at page 140 that “the street car of the defendant was being operated in a perfectly lawful manner.” That cannot be said of the defendant’s truck in this case.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur.


author: By THE COURT:

text:
    JOHNSON, Plaintiff-Appellee, v. JOHNSON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2194.
    Decided April 17, 1952.
    Raymond A. White, Dayton, for plaintiff-appellee.
    Otterbein Creager, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the Common Pleas Court, Division of Domestic Relations, Montgomery County, Ohio, in which plaintiff was decreed a divorce upon the ground of gross neglect of duty and extreme cruelty.

The only assignment of error involves the weight of the evidence. The evidence was in conflict and there was substantial evidence to support the judgment of the Court on the issue of gross neglect of duty and extreme cruelty and condonation. It was within the province of the trial court to believe or disbelieve the testimony of the plaintiff or defendant and the witnesses who were called to testify. The Court resolved the issues in favor of the plaintiff and finding no prejudicial error committed, the judgment is affirmed.

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