author: By CONN, J.

text:
    EUCLID (City), Plaintiff-Appellant v. VOGELIN et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21233.
    Decided April 4, 1949.
    Paul Torbet, Cleveland, for plaintiff-appellant.
    Arthur P. Gustafson, Cleveland, for defendants-appellees.
    (CONN, J., of the 6th District, sitting by designation in place of MORGAN, PJ.)
   OPINION

By CONN, J.

The appeal in this case on questions of law was taken by the plaintiff from a judgment rendered against it by the court of common pleas.

The plaintiff, City of Euclid, determined to appropriate certain real estate of the defendants for purposes of a park and recreational center, and a Resolution of Necessity for that purpose was adopted by the Council in November, 1945 and notice given.

On July 29, 1946, plaintiff filed its petition in the common pleas court praying that a jury be empanelled to assess the compensation to be paid by plaintiff for the property of the defendants described therein and that upon payment to the owners of the .amount so assessed possession of said property be awarded.

On August 30, 1946 an answer to this petition was filed by defendants and on October 24, 1947, more than one year later, defendants filed a motion to advance the cause for immediate trial. This motion was granted and the cause advanced to the trial list for November 17, 1947. Shortly preceding the trial date, on November 14, 1947, on application of the plaintiff, the action was dismissed without prejudice at plaintiff’s costs for which costs judgment was rendered.

Thereafter, on November 21, 1947, the defendant, Eugene E. Vogelin, .filéd his motion to retax the costs “so as to include in such costs such counsel fees and other expenses as have been incurred by said defendant in the preparation for the trial of this action * *

The motion to retax the costs was granted on April 15, 1948 and the issues raised were submitted to the court on July 15, 1948, and a finding was made that the defendant incurred expenses in counsel fees of the reasonable value of $750.00, and for real estate appraisal fees of the reasonable value of $400.00. Judgment was entered accordingly against the plaintiff and further that said amounts be included and taxed as costs.

For its assignment of errors plaintiff specified and sets forth four errors of the trial court, to-wit:

That the court erred in granting the motion of defendant to retax the costs; erred in retaxing costs; erred in overruling the motion of plaintiff to vacate the order retaxing the costs; and that the judgment is contrary to law.

The gist of the errors assigned is that the judgment from which the appeal is taken is contrary to law.

It appears from the record that the property appropriated by the resolution of Council consists of about twelve acres of land lying between Lake Erie and Lake Shore. Boulevard, with a frontage on each of a little over 400 feet. It also appears that the property was improved with three dwelling houses and a barn and was of the value of between $80,000.00 and $90,000.00.

The question presented, as stated by appellant, is this:

“If a municipality voluntarily abandons appropriation proceedings, before trial, and dismisses the action, can the court tax as part of the costs an attorney’s fees to be paid to counsel for the land owner, and an appraiser’s fee to be paid to an appraiser retained by the land owner?”

It is conceded that the answer to this question must be found within the special powers given municipal corporations by the Code for the exercise of the right of eminent domain. The section of the Code pertinent and applicable to the issues in the instant case is §3697 GC, which is as follows:

“Sec. 3697: When a municipal corporation makes an appropriation of property, and fails to pay or take possession thereof, within six months after the assessment of compensation shall have been made, its right to make such appropriation on the terms of the assessment so made shall be relieved from all incumbrance on account of any of the proceedings in such case, and the judgment or order of the court directing such assessment, to be paid, shall cease to be of any affect, except as to the costs adjudged against the corporation. Upon motion of any defendant, such costs may be retaxed, and a reasonable attorney’s fee paid to the attorney of such defendant, which, together with any other proper expenses incurred by the defendant, may be included in the costs.”

The provisions of this statute have been considered by several trial courts of the' state but under substantially different facts. These cases are cited in briefs of counsel. We shall comment on them briefly.

The case of Cincinnati v. Thrall, et al., 6 O. N. P., 158, 9 O. D., 251, was an action in the Probate Court to condemn certain real estate of defendants and after the jury was empanelled the case was dismissed on the application of plaintiff. It was held that the conditions of dismissal were within the discretion of the court and that the expenses incurred by defendants should be included in the costs and paid by plaintiff.

The case of Hyde Park v. Grant, et al., 6 O. N. P. 471, 9 O. D. 723, was also a condemnation proceeding brought in the Probate Court of Hamilton County and an award was made by the jury in favor of defendants. Thereafter, the Supreme Court of the United States, in Baker v. Norwood, 172 U. S. 269, held that the statute under which the proceedings were brought was unconstitutional in respect to certain provisions. Under these circumstances, the plaintiff not being able to acquire title to the real estate thus appropriated, the court held that the motion to retax costs and to require plaintiff to pay attorney fees should be overruled.

A motion to retax costs was denied in Cincinnati v. Marshall, 29 N. P. N. S. 70 (common pleas) which was a proceeding to acquire necessary property for street improvements. Certain defendants in a separate action obtained an order restraining the city from proceeding with the appropriation case. Thereafter the city negotiated a settlement as to certain defendants and “reached an agreement as to compensation for the property described in the application.” The motion to retax costs was based on §3697 GC and §11060 GC, the latter section relating solely to private or. quasi-public corporations.

The Court of Appeals of the First District reversed the trial court in Village of Pleasant Ridge v. O’Meara, No. 268, decided May 17, 1915 (Cincinnati Court Index). A majority of the court held that there could be no allowance of attorney fees where appropriation proceedings were voluntarily dismissed by plaintiff. With this conclusion we are not in accord.

Cases in other states are differentiated by reason of the varying provisions of the statutes in those jurisdictions and are not determinative of the issues here, and are in fact of little help.

We are, therefore, obliged to scrutinize the statute and give it an application to the facts in this case so as to carry into effect the intention of the legislature as therein expressed.

The conditions and provisions of this statute are grounded on the initial phrase, to-wit, “When a municipality makes an appropriation of property * * The key word in this phrase is “appropriation” which is defined in Webster’s New International Dictionary (2nd Ed.) as:

“1. * * * to take to oneself in exclusion of others; to claim or use as by an exclusive or pre-eminent right * *
“4. To set apart for, or assign to, a particular purpose or use in exclusion of all others.”

When plaintiff by its Council adopted a Resolution of Necessity that it was necessary for the municipality to have the property of defendants for certain public purposes followed by notice to defendants, the property was set apart for a particular purpose, “in exclusion of all others” and in that sense was “appropriated.”

We call attention to the opinion of Judge Spear in Grant v. Village of Hdye Park, 67 Oh St 166, being an appropriation case begun in the common pleas court of Hamilton County, page 173, where he said, in discussing the effect of the resolution of necessity of the Village:

“It seeks to acquire that precise property, or, putting it in a different form, it has already appropriated the property described, for the proceeding in court is one simply for the ascertainment of the amount of compensation to be paid to the land owner.”

However, under the limitations of the Constitution that private property shall be held inviolate and shall not be taken for public use until compensation is first made, the plaintiff could not take possession of this property until it had paid for it. In the event it could not agree with the owner, then, pursuant ,to the statute, it could bring an action and have a jury empanelled to assess the value. Thereafter, the municipality “must pay or take possession of the property within six months after the assessment of compensation shall have been made.” If it fails so to do, “its right to make such appropriation on the terms of the assessment so made, shall cease and determine * * and the judgment shall cease to be of any effect “except as to the costs adjudged against the corporation.”

Only in event the municipality and the owner cannot agree on the amount of compensation after the property has been appropriated by the resolution of necessity and an action is brought to have the value assessed, would the matter of costs arise. After the plaintiff began its action, whatever costs were taxed in the case, whether on dismissal without prejudice, or following judgment, are to be “adjudged against the corporation.” The statute then provides, “upon motion of any defendant such costs may be retaxed.” This the trial court did, as above stated.

In our opinion, the words ‘within six months after the assessment of compensation shall have been made’ are words of limitation fixing the time within which the municipal corporation must act in the acquisition of the property previously appropriated by it to public use in the exercise of its right of eminent domain. It is our view that the legislature quite obviously did not intend that the limitation of time placed upon the municipality should also be a limitation upon the right of the property owner, to be made whole in respect of proper expenses incurred by him or for which he has become obligated in the preparation of his case for trial.

It is a general rule that statutes implementing the power of eminent domain must be strictly construed. It is contended by the appellant that the rule of strict construction should be applied to the particular statute under consideration. However, where the statute under consideration, as in this case, is essentially remedial in character and where the manifest intention of the legislature is reasonably clear in disclosing a definite purpose to do justice and prevent injustice, the rule of strict construction should not be adopted.

In the instant case, the resolution of necessity was followed by proceedings to have the compensation to the defendants for the property appropriated assessed by the jury. Notwithstanding the fact that the proceedings were dismissed before trial, and the property abandoned by plaintiff, this court is of the opinion that the statute reveals a purpose, though not artfully expressed, to compensate the owners for their reasonable expenses in relation to such proceedings.

This conclusion appears to be in keeping with the principles of rectitude and fair dealing among men. Would it not be a travesty on the rights of the defendant owners if plaintiff could lay hold of their property, for a period of two years, by appropriating it for an alleged public use and at the end of this period dismiss the proceeding without prejudice and with impunity? Such harsh consequences are not consistent with the apparent purpose and intent of the statute.

The judgment of common pleas court is affirmed and remanded thereto for execution. Exc. Order See Journal.

SKEEL, J, HURD, J, concur.


source: Caselaw Access Project

author: By BELL, J.

license: Public Domain

text:
    PERSINGER, Plaintiff, v. PERSINGER, et, Defendants.
    Common Pleas Court, Fayette County.
    No. 20505.
    Decided May 17, 1949.
    BELL, J., sitting in Fayette County by designation of the Chief Justice.
    Ray R. Maddox, W. S. Paxson, Washington, C. H., for plaintiff.
    Bush & Rankin, Washington, C. H., for defendants.
   OPINION

By BELL, J.

On November 18, 1898, the defendant Washington Cemetery Association conveyed to John L. Persinger, his heirs and assigns, the right to use and occupy for the purpose of sepulture, lot number 46 in section five of the cemetery maintained by said association. John L. Persinger, his wife, and three of their children are buried on this lot. The plaintiff, Carey Persinger, and the defendants, Jesse Persinger and Emma Pugsley, are the only remaining living children of John L. Persinger. There are three grave spaces remaining on the lot.

Carey Persinger, a widower, desiring at his death to be buried on the lot and desiring before his death to erect a headstone to mark the grave space where he will be buried, arranged with a monument dealer to erect such headstone. The trustees of defendant Cemetery Association, acting on the demand of defendant Jesse Persinger, ordered said monument dealer not to erect the marker. Plaintiff brings this action in declaratory judgment to determine his right to erect a marker on the lot and to be buried thereon after his death.

The defendant Emma Pugsley entered her appearance, joined in the prayer of the petition and consented to the relief prayed for therein.

The defendant Jesse Persinger demurred to plaintiff’s petition on the ground that it did not state a cause of action and that there is a defect of parties defendant. The matter was submitted on the argument and memoranda of counsel.

It is contended by counsel for defendant'that the petition does not state a cause of action because it is apparent therefrom that plaintiff is but one of several joint owners of a burial lot and that one of his co-owners has refused his consent to the burial or defacement of the lot by plaintiff. If it be considered that the petition state a cause of action, it is contended that the petition is defective because all persons necessary to a determination of the issue are not parties defendant.

This demurrer raises two questions which, in the ultimate, are determinative of the controversy between the parties. (1) What are the rights, so far as burial is concerned, of a tenant in common of a cemetery lot? (2) In an action to determine those rights, who are necessary parties?

Although the questions involved here have been raised in other jurisdictions, they are apparently of first impression in Ohio. No Ohio cases in point have been found by the Court and none have been cited by counsel.

Were we dealing here with property, realty, in the ordinary sense, property that can be bought and sold, encumbered, partitioned and devised without restriction, the questions raised herein would be easy of resolution. But we are not. Here we have a plot of ground, the like of which has for centuries been held apart, consigned a character different from that of other land. All civilized nations, and many barbarous ones, have since time began regarded in some measure, at least, the place where the dead are deposited as consecrated ground. In the old Saxon tongue, the burial ground of the dead was “God’s Acre.”

Although we know that the earthly body of man together with the adjuncts that surround it when laid in the grave is consigned to the dust from which it springs — although these remains “have said to corruption, thou art my father, to the worm, thou art my mother and my sister” — yet from the dawn of history man has learned to expect, and in most instances has received, a decent burial. Moses, in describing the curse of disobedience, instructed his people that one of the greatest curses would be that “thy carcase shall be meat unto all fowls of the air, and unto the beasts of the earth, and no man shall fray them away.” And on at least four occasions the prophet Jeremiah described the lack of burial as one of the greatest calamities that could befall the Hebrew people.

This right to decent burial is one that has -been guarded by the law. Because, however, from early Roman days until comparatively recently, such matters were under the control of ecclesiastical courts, the rules of law pertaining thereto have been the result of gradual development. But from this development a few well established rules have evolved. All courts now concur in holding that the right of possession of a dead body for the purposes of burial belongs to those most intimately and closely connected with the deceased by domestic ties. And the authorities are equally conclusive that the last resting place of the dead, when in actual or constructive possession of a relative, will be protected from desecration at' his instance. And this right will be protected at the instance of one of several relatives, owners in common, without the joinder of the others. Anderson v. Acheson, 110 N. W. 335; Wright v. Hollywood Cemetery Corp., 38 S. E. 94. The Iowa joinder statute considered in the Anderson case, a statute almost identical with that of Ohio, reads: “Persons having a united interest must be joined on the same side . . . but when some one who should be made plaintiffs refuse to join, they may be made defendants.”

A burial lot is generally regarded as property in which title may descend to heirs. Field v. City of Providence, 24 A. 143; In re Waldron, 58 A. 453; Paxton v. Bloomington Cemetery Corp., 187 N. E. 455; Brown v. Hill, 119 N. E. 977; McWhirter v. Newell, 66 N. E. 345; Hook v. Joyce, 22 S. W. 651; Jacobus v. Congregation of Children of Israel, 33 S. E. 853; Wright v. Hollywood Cemetery Corp., supra. Yet it is evident from most of these cases, and others, that the tenure generally is not like that of ordinary real estate. In most cases, though a deed may run to a grantee, his heirs and assigns, he takes only an easement or á right of burial, rather than an absolute title. Sohier v. Trinity Church, 109 Mass. 1; Went v. Methodist Church; 30 N. Y. S. 157; dictum in Fraser v. Lee, 8 Oh Ap 235. So long as the land is used for burial purposes, the holder of such a deed cannot exercise the same rights of ownership as in other real estate. Thus in Thompson v. Hickey, 59 How. Prac. 434, it was held that a burial lot could not be mortgaged. And in Derby v. Derby, 4 R. I. 414, it was held that it did not fall within a power of sale given to an executor for the payment of debts and legacies, but that it passed to the heir at law of the testator. Similarly, it has been held that a burial lot does not pass under a general residuary clause in a will but descends to the heirs as intestate property. In re Waldron, supra.

In spite of the fact that Massachusetts courts have held that only an easement or license passes under a cemetery deed, in one case, at least, the court held that that easement or license was no different, so far as the rights of the owners were concerned, from any other interest in real estate. A Massachusetts statute, which would be'most beneficial in cases such as this, provides that in certain cemeteries if owners in common do not agree on control of the lot, the proper officials of the cemterey shall designate which of the heirs shall control it.

Plaintiff, in the case of Capen v. Leach, 65 N. E. 63 (Mass.), was one of four heirs at law who were tenants in common of a burial lot in the town of Hampden. Plaintiff erected a monument on one corner of the lot and defendants removed it. The trial court sustained a demurrer to plaintiff’s petition for damages. On review, the court said:

“If the lot was not governed by the statute cited, the plaintiff and the defendants are merely tenants in common. The placing upon the lot of a granite monument was an exclusive appropriation of a part of the land to her own use, which the defendants could treat as an ouster, and they might remove the structure from the common land. As the bill shows no right in the plaintiff to place or keep a monument on the lot, the demurrer was sustained rightly.”

Were the Capen case standing alone in the field, this Court would feel more constrained to follow it. It is, however, inconsistent with the holdings in many other jurisdictions.

In Paxton v. Bloomington Cemetery Corp., 187 N. E. 455 (Ill.), the court held that the sale of a lot in a public cemetery does not pass the title in fee, but assure to the grantee an easement for burial purposes so long as the ground is used for a cemetery, and this easement passes to the grantee’s family at his death.

In another Illinois case, McWhirter v. Newell, 66 N. E. 345, the court said:'

“As it is a public cemetery, the sale of lots therein does not pass to the grantees the title in fee to such lots, but thereby assures to the grantee a license or easement therein for burial purposes, so long as the cemetery shall be used for cemetery purposes. This license or easement becomes the property of the family of the original grantee of the lot upon his or her decease.” (Emphasis ours.)

In the Georgia case of Wright v. Hollywood Cemetery Corp., supra, one Annie Carlton had purchased a lot from the defendant cemetery corporation “for a burial place for herself, her children, and the members of her family”, and received a deed of conveyance to the same. Some years after the death of Annie Carlton, her daughter, Ludie Carlton, died and preparations were made by her grandmother and brother, the plaintiffs, for burial on the lot. Upon arriving at the cemetery after the funeral, defendant denied plaintiffs the right of interment. In reversing a judgment for defendant, the court said:

“Upon her death (i. e. Annie Carlton) the title to the same descended to her children as her heirs at law. Ludie Carlton, at the time of her death, as one of these heirs at law, owned an undivided interest in this lot, and the right of sepulture therein. Therefore whoever had the right to bury her remains had the right to inter them in this lot.” (Emphasis ours.)

In the case of Robertson v. Mt. Olivet Cemetery Co., 93 S. W. 574 (Tenn.), a lot was purchased by the Executor of deceased who was buried on the lot. A number of his children and grandchildren and his widow were buried there. In a controversy between step-children who claimed to inherit from their mother and other children of the deceased, the court said:

“The lot was purchased with a view to the interment of his body and the erection of a monument thereon, and as a burial place for those of his blood who came after him. That his widow was entitled at her death to have her body repose in that lot by the side of her husband is unquestioned. It is equally true that the child of this second marriage as well as the children of the first marriage of Gov. Brown, and their descendants are entitled to sepulture in it.”

One of the best reasoned cases, and the one most often cited by courts considering rights in cemetery lots is In re Waldron, supra. In laying down the general proposition that a burial lot does not pass under a general residuary clause in a will but descends as intestate property, this Rhode Island court said:

“He had devoted this lot to pious and charitable uses as a place of burial for the members of his own family .... Although this devise was to his widow, yet, as there were no children of her marriage, the lot if devised, would go out of his family to her heirs. His living daughter would have no right to be buried in the family lot. It seems improbable that he should have intended such a result .... It is essentially a family heritage .... It is a family burial lot .... It is that fact alone which gives a peculiar limitation to its tenure .... A sort of trust attaches to the iand for the benefit of the family. Neither the widow nor the child can be excluded from it for want of title, yet such a result might follow if the tenure was like that of other real estate. Children could exclude a widow, or a widow could exclude children, by virtue of ownership of the land.” (Emphasis ours.)

That a widow could exclude a child, a child the widow, or a child another child, would certainly be the result of following the strict ruling of the Capen case or of acceding to the contention of defendant in his demurrer. To so hold would, in the opinion of this Court, destroy the age-old concept of “God’s Acre”, would subject the consecrated ground where a man’s loved ones are interred to the whim or caprice of anyone who might even remotely claim an interest. To this Court, nothing seems more natural than for a man, alone and without family, to want to be buried with his mother and father, brothers and sisters. And nothing seems more unnatural than for a brother, who has no desire to be buried there himself, to attempt to prevent it or block the desire of his brother by attempting to engraft on the hallowed ground in which his parents repose a technicality of law. Such an attitude seems even more unnatural in view of the fact that plenty of space remains on the lot.

This Court can not believe otherwise than that John L. Persinger intended this lot as a family burying ground. He buried a child on it. He buried his wife on it. And he himself is interred there. It was evidently considered a family burying ground by John L. Persinger’s children after their father died; counsel have stipulated that two other children were buried on the lot subsequent to their father’s death. And who has a better right to be buried there; who better than those who during life were most intimately and closely connected by family and domestic ties? John L. Persinger had six children. He bought a lot containing eight grave spaces. What could have been his intention but that it should be a burying place for his family? Carey Persinger is a member of that family, and as such has a right to be buried there, as do his brother and sister if they so desire. And the right of each is equal and several and does not require the consent of the others.

It is agreed by counsel that the right to be buried on a lot carries with it the right to erect a monument.

Counsel for defendant have cited Bockel v. Fidelity Development Co., 101 S. W. 2d. 628 (Texas), as standing for the proposition that an heir or lineal descendant does not, merely because of such kinship, acquire an absolute right to be buried on a family plot himself, but only after the consent of all owners. This Court has been unable to put that interpretation on the case. In that case the plaintiff was a grandson who was not mentioned in his grandfather’s will and who had been disinherited by his father. The court held he had no right in his grandfather’s private family burial ground merely because he was a grandson, unless it was the privilege of visitation, ornamentation and protection of the graves of relatives buried therein. In such a situation, the grandson could not have an interest comparable with that of plaintiff in this case.

The Bockel case, however, would seem to be authority for the proposition that grandchildren are not necessary parties in determining the rights of living children in their father’s, cemetery lot.

Counsel for defendant have also cited Lewis v. Walker, 30 A. 500 (PennaJ for the proposition that in the case of two or more joint owners of a burial lot, no one owner may inter a body in such lot or erect a tombstone or otherwise interfere with the lot without the consent of all the other joint owners. And this case is usually cited in the texts as so holding. But the case is easily distinguishable from the one at hand. In that case, four brothers erected in the center of a cemetery lot, which they had jointly purchased, a monument, with its four sides facing the corners of the lot. On each side of the monument was inscribed the Christian name of one of the brothers, the space opposite the name being set apart as a burial place for his family. Their father and mother were buried at opposite corners of the monument. The court held this tq be a family lot, and therefore one brother could not sell his interest in the lot to a stranger, so as to authorize him to bury therein a person not belonging to the family, without the consent of the other brothers. The question of one brother attempting to prevent another from being buried was not before the court. Were Carey Persinger attempting to bury a stranger on his father’s lot, or sell the lot to another for that purpose, his brother and sister would have every right to object and this Court would protect that right.

It is the opinion of this Court that the plaintiff as the child of John L. Persinger has a right to be buried in his father’s family burial lot and that that right exists independently of the consent of his brother and sister; and that in an action to determine that right, his living brothers and sisters, who are the only ones who can share that right with him, and the cemetery corporation are the only necessary parties. The demurrer is therefore overruled.


author: By DOYLE, J.

text:
    LIOSSIS, Appellee, v. CAVALRY RIDING ACADEMY CO., Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21220.
    Decided April 1949.
    Krueger, Gorman & Davis, Cleveland, for appellee.
    Crossen & Hurd, Cleveland, for appellant.
    (DOYLE, J, of the Ninth District; sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

This is an appeal from a judgment of the Court of Common Pleas of Cuyahoga County, for $10,000, in favor of Katharine N. Liossis and against The Cavalry Riding Academy Company.

It appears that on May 3, 1946, the complainant, a 20-year-old art student, rented a horse and equipment from the defendant (which operated a saddle horse rental establishment for the general public), for the purpose of riding; after the charge was paid, the defendant’s groom brought forth a saddled and bridled horse to a mounting platform, from which the animal was mounted by the plaintiff; the horse was then ridden at a walk four or five times around a ring, and then was directed across a highway and onto a bridle path; after a short distance, the horse commenced to trot, at which time the saddle (English riding saddle) began to slip and turn to the left; the rider thereupon took her left foot out of the stirrup, preparatory to throwing herself off, when her right foot became caught in the right stirrup. She fell from the horse’s back, with the saddle turning to a position beneath the animal’s belly and her right foot still engaged in the right stirrup; the horse then became frightened, commenced to gallop, and dragged the rider for about 100 feet. , Severe and serious injuries resulted.

It was claimed in the petition — and evidence was offered for the purpose of proving — that the defendant was negligent (1) in failing to have the girth of the saddle securely tightened, and (2) in failing to inspect the equipment for proper adjustment before hiring it out to the plaintiff; and that as a proximate result of such failures, the plaintiff was injured.

Among the errors claimed for which reversal is sought, are:

“1. In submitting the case to the jury on the question of failure to inspect the equipment for proper adjustment before hiring it out to plaintiff.
“2. In submitting * * * the allegation of failing to have the girth of the saddle securely tightened.”

It is claimed that there is a “complete failure on (plaintiff’s) part to sustain the burden of proof * * *.”

Examination of the record reveals the following testimony of the plaintiff:

“Q. How did you mount the horse?
A I mounted on the block.
Q. What did anybody do if anything?
A. He adjusted the stirrup for me.
Q. Did the groom adjust the stirrup for you while you were on the block?
A. While I was on the block.
Q. By adjusting the stirrup, what do you mean?
A. Well, he made them shorter, you know, and pulled them down to fit my feet, of course, on account of my height.
Q. Was there any conversation between you and the groom?
A. No.
Q. None at all about the stirrup?
A. No. I just asked him if it was all right to mount and he said, ‘Yes.’
Q. You asked him what was all right? Did you indicate by motion or words?
A. Well, the saddle.
THE COURT: I did not hear.
THE WITNESS: I asked was the saddle, was it all right; whether I could mount. He said, ‘Yes.’
Q. He said the saddle and everything was all right. What did you mean by everything?
A. Well, the stirrup and saddle, the rest of the gear on a horse.
Q. What did he say to you after that?
A. He said it was all right. It was ready for me to mount.
Q. What did you do then?
A. I mounted.
Q. Going back just a few seconds prior to that, when you asked the groom if it was .all right did he do anything at that time toward inspecting the gear?
A. I don’t remember after I asked him. I don’t remember.
Q. After you asked him do you remember whether he did anything at all?
A. No.”

In addition to the evidence shown above, there is expert testimony indicating that the saddle turned and slipped because “the girth of the saddle was not tight enough.” And it should be noted at this point that there is no evidence to indicate that the tackle (“tack”) used on the horse was in anything other than perfect condition.

At the outset of this discussion, .it must be recognized that we are not here deciding a case in which injury is claimed because of some trait, condition or propensity of the horse. The law governing such circumstances is definitely dedared in. this state in Troop A. Riding Academy v. Miller, 127 Oh St 545. It is there stated:

“1 One who rides a horse, which he has hired for that purpose, takes the ordinary risks incident to such pursuit.
“2. In order to recover for injuries received when a horse hired for riding runs and falls, one who sues in tort must show knowledge, on the part of the owner or his agents, of some trait, condition or propensity from which a probability of the horse’s running away or falling might reasonably be inferred.
“3. When there is no evidence of any known trait, condition or propensity of the horse, which would subject the rider to greater risks than ordinarily attach to horseback riding, it is error for the trial judge to submit such case to the jury. Defendant’s motion for an instructed verdict should be granted.”

Our question is whether there was or was not sufficient evidence of the alleged negligent saddling of the animal which proximately resulted in the injury.

There is nothing in the record to indicate that this accident was due to any voluntary action or contribution of the plaintiff. She did not improperly ride the horse; the saddle and girth was not interfered with nor handled by anyone after leaving the hands of the defendant’s servant, and the plaintiff’s explanation of her fall was that the saddle suddenly slipped and took her with it.

The defendant maintains that the accident was due to causes for which the defendant was not responsible; that the horse, by its own conduct, was the causative factor of the slipping of the saddle; “that a horse will frequently suck in air when the cinch is being tightened around him and that a few minutes later he may exhaust some of that air and the cinch may not be as tight around him as it was when the saddle was first put on. This in itself could cause the saddle to become slightly looser but does not prove in any way that the saddle was loose at the time that plaintiff mounted.”

Operators of riding academies, holding themselves out to the public as having horses properly equipped for pleasure riding, must, in the exercise of due care, take into consideration the many and various propensities of horses, before, at the time of, and following, saddling. In the ordinary course of things, a saddle does not slip to the belly of a horse if proper care has been used in cinching. And the slipping of a saddle is indeed reasonably foreseeable to any hostler if a girth is not properly tightened. In fact, the very purpose of a girth is to keep the saddle in proper place on the withers and back of the animal, and this is accomplished by tightening it sufficiently to keep it from slipping.

As we view the evidence before us and the reasonable inferences to be drawn therefrom, we believe it sufficient to establish the claims of negligence. We think it sufficient to establish the fact that the horse was not cinched, at the time he was turned over to the plaintiff, in the manner that proper skill and reasonable care demanded, and that reasonable inspection was, not made of the equipment.

2. It is further claimed that the court erred “in failing to charge the jury that a person incurs or assumes usual and ordinary risks and dangers usually present in the mode of conveyance which he selects.”

As heretofore stated, “One who rides a horse, which he has hired for that purpose, takes the ordinary risks incident to such pursuit.” This rule of law, however, does not mean that one who rides a hired horse assumes the risk of an improper saddling of the animal of which he had no knowledge. The slipping of the saddle due to improper adjustment was not one of the assumed risks of the adventure. Authorities on this question are so numerous that citations seem unnecessary.

We find no error in not charging the jury further on this point.

There are in all twelve separate claimed errors. Examination has been made of them all, and we find none prejudicial in character. Under this view of the record, the judgment will be affirmed.

Judgment affirmed; exceptions. Order, see journal.

GUERNSEY, PJ, and MIDDLETON, J, concur.


author: By MILLER, PJ.

text:
    FRECKER, Plaintiff-Appellee, v. DAYTON (City) et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2018.
    Decided February 19, 1949.

      Nicholas F. Nolan, Dayton, J. Paul McNamara, Columbus, for plaintiff-appellee.
    Herbert S. Beane, City Atty., M. J. Gilbert, Joseph P. Duffy, Asst. City Attys., Dayton, for defendants-appellants.
   OPINION

By MILLER, PJ.

This is an appeal on questions of law and fact from the judgment of the Court of Common Pleas of Montgomery County, Ohio, finding Municipal ordinance No. 16059 of the City of Dayton, Ohio, to be null and void, in violation of the Constitution of the United States and the State of Ohio, and granting a permanent injunction restraining its enforcement.

The ordinance under consideration provides:

“A Ordinance. Prohibiting in the interest of public safety, the sale in the Parks, and on or from the Streets, Sidewalks, and alleys of the City of Dayton, Ohio, of certain commodities herein enumerated.
WHEREAS, the Commission of the City of Dayton. Ohio, deem it necessay and and in the public interest to reduce the hazards of injury to young children and to avoid traffic congestion in the parks, and on the streets, sidewalks and alleys of the City of Dayton, to prohibit the sale of certain commodities hereinafter enumerated; and
WHEREAS, it is necessary for the immediate preservation of the public peace, property, health and safety, that this ordinance take effect at an early date; therefore
BE IT ORDAINED BY THE COMMISSION OF THE CITY OF DAYTON:
Section 1. That the Code of General Ordinances of the City of Dayton, Ohio, be supplemented by the enactment of Section 288-1 and 288-2 to provide as follows:
Sec. 288-1. Excepting in any market stands, which now or may hereafter be licensed under the provisions of §§156 to 196 GC, both inclusive, and park concessions, now or hereafter granted by the City of Dayton, no person, firm or corporation, shall sell or offer to sell, in the parks, and on or from the streets, sidewalks and alleys of the City of Dayton, Ohio, any ice cream in any form, popsicles, ice sherberts or frozen desserts of any kind, and all kinds of soft drinks, such as pop, cola drinks or others, candies of any kind, hot dog or other sandwiches, and peanuts, popcorn, or other similar products.
Sec. 288-2. Penalty. Any person, firm or corporation, found guilty of the violation of this ordinance, shall be deemed guilty of a misdemeanor, and shall upon conviction thereof, be fined not less than Twenty-five Dollars ($25.00) and the costs of prosecution, or more than Fifty ($50.00) Dollars and the cost of prosecution, and each violation hereof shall constitute a separate offense.
Section 2. For the reasons stated in the preamble hereof, this ordinance is declared to be an emergency measure and shall take effect immediately upon its passage.”

The petition, after alleging the capacity of the various defendants, alleges that:

“Plaintiff, Edward V. Frecker, does business as Scioto yalley Dairy and Ice Cream Company and has his principal place of manufacturing at 555 East Main Street, in the City of Columbus, Ohio.
Plaintiff is now, and for more than five years past has been, engaged in the manufacture and sale, at retail, of ice cream, ice cream products, frozen desserts and frozen confections (hereinafter' ref erred to as ‘products’), and is duly licensed to engage in such business under the provisions of §12730-1, et seq., GC. At all times herein mentioned, the plaintiff has engaged in the sale of said products in the manner herein described in the City of Columbus, Ohio, and part of the time, during the past five years, plaintiff has engaged in the sale of said products in the cities of Springfield, Ohio, Zanesville, Ohio, Portsmouth, Ohio, Marion, Ohio, Bucyrus, Ohio, and Chiliicothe, Ohio.
Plaintiff has in excess of $100,000.00 invested in plant and equipment in Columbus, Ohio for the manufacture of said products.
Since December 1, 1945, plaintiff has invested approximately $30,000.00 in vehicular equipment and other expenses to establish and operate his business in the City of Dayton, Ohio.
Plaintiff’s products are manufactured, transported, sold and delivered under sanitary conditions, and such products are wholesome and nourishing food products.
Plaintiff’s products are packaged in separate, individual sanitary containers.
Plaintiff sells the aforesaid products directly to the consuming public through salesmen and agents, who sell said products from vehicles propelled throughout the public streets of the aforesaid cities. Said vehicles are sanitary refrigerated, foot-propelled tricycles and handcarts.
Plaintiff’s employees and agents make sales of the products from vehicles at the curb of the public streets or away from the vehicles on the sidewalks, and on private property.
Plaintiff’s agents and employees are specially trained as to safety and sanitation in the sale of plaintiff’s products.
At no time during the aforesaid period, did any of plaintiff’s agents or employees or any person doing business with plaintiff’s agents or employees, sustain any personal injury of any kind as a result of the operation of plaintiff’s business.
By using only good quality materials and by employing precaution to insure sanitation, quality and perfection in its products, and by exercising care and safety in its method of merchandising said products, plaintiff has built up an extensive and profitable business.
On June 6, 1946, plaintiff was granted a special permit pursuant to the provisions of Section 752 of the Codified Ordinances of the City of Dayton, Ohio, authorizing plaintiff to sell and offer for sale, the aforesaid products for human consumption within the limits of the City of Dayton, Ohio.
Plaintiff intends to operate his business of selling the aforesaid products in the manner herein described, from. vehicles propelled through the streets of the City of Dayton, Ohio.
On June 5, 1946, the City Commission of the City of Dayton, Ohio, enacted Ordinance No! 16059, which provides as follows:
* * * * *
It is the duty of defendants, and the defendants will, unless restrained and enjoined by this Court, enforce the aforesaid ordinance against plaintiff, his agents and employees, and arrest or cause the arrest of plaintiff, his agents and employees.
The enforcement of the aforesaid ordinance by the defendants against plaintiff, his agents and employees, will prohibit plaintiff from operating his business as above described in the City of Dayton, Ohio.
The aforesaid ordinance is invalid, contrary to law, and the Constitution of the United States and the Constitution of the State of Ohio, and is-a violation of plaintiff’s rights under law and said Constitutions.
The enforcement of said ordinance against the plaintiff, his agents and employees, will deprive plaintiff of his recognized and legal right to engage in a lawful and legitimate business, and will deprive the plaintiff of his liberty and property without due process of law and will unfairly and unlawfully discriminate against the plaintiff.
Plaintiff’s business will suffer irreparable damages if said ordinance is enforced.
Plaintiff has no adequate remedy at law.
SECOND CAUSE OF ACTION.
Plaintiff for his second cause of action adopts and incorporates herein, as though fully rewritten, all the allegations of the first cause of action.
The aforesaid ordinance No. 16059 was not enacted by the City Commission of the City of Dayton, Ohio, in the interest of general public, but said ordinance was enacted by the City Commission of the City of Dayton, Ohio as a legislative measure to protect the business and profits of resident merchants who own and operate businesses located in the City of Dayton, Ohio, and who engage in the sale of the same or similar products manufactured and sold by the plaintiff.
The enforcement of the aforesaid ordinance will have the effect of stifling competition and will unfairly and unlawfully discriminate against the plaintiff to the benefit, favor and advantage of the resident merchants located in the City of Dayton, Ohio who sell the same or similar products by merchandizing and selling such products in a different manner.”

The answer is a general denial, and further avers that the ordinance was adopted in the exercise of the power conferred upon the defendant by the Constitution and laws of the State of Ohio upon the City of Dayton to provide for the safety of its people in general and particularly upon the younger children to whom plaintiff’s products are peculiarly attractive; that the object of said ordinance is within the sovereign power of the City of Dayton, and that the means provided is calculated to accomplish that effect; that the ordinance is reasonable, not arbitrary or discriminating in any manner, and that it is intended to promote the health, safety and general welfavor of the public.

The sole question presented is the validity of the ordinance. The plaintiff urges that its enforcement will prohibit his doing business in the City of Dayton thereby destroying a valuable property right; that no effort- has been made to regulate this business if the public welfare requires additional legislation; that the real purpose of the ordinance is the protection of resident merchants and that the same is in violation of the Constitution of the United States and of the State of Ohio.

After a careful examination of the record in this case we find that the evidence supports all of the material allegations of the petition. The defendant offered only one witness, a police officer of the City of Dayton who qualified as a traffic expert and he testified that in his opinion the sale of the articles upon and from the streets of Dayton would constitute a traffic hazard and be especially dangerous to children. However,-"the evidence does not support this conclusion and therefore no weight can be attached to it. ' The uncontradicted evidence in the record is that after many years of operation in various cities of Ohio, including the City of Dayton, no person has even been injured while engaged in the purchase of any of plaintiff’s products. Even though it should be conceded that the sale of these articles might be a traffic hazard and that others in the same business may not conduct their business with the same degree of care, the proper approach to a solution of the problem would be by regulation of the manner in which the business is conducted and not to destroy a lawful business.

In the enumeration of powers granted to the cities provision is made in the General Code of Ohio for licensing and regulating peddlers and itinerant vendors, in §§3670 and 3672 GC, however, further provides that no municipal corporation may require of the owner of any product of his own raising, or of the manufacture of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product. These enactments clearly recognize peddling as a lawful occupation If a city cannot even require a license from certain vendors under §3672 GC, and the plaintiff comes under this classification, it should be apparent that it does not possess the far greater power of completely destroying such a business.

However, it is urged by the defendants that the ordinance is valid by reason of §3634 GC. This section is found in the chapter which enumerates the powers granted to municipal corporations and it is headed “Auctioneering.” It provides as follows:

“To regulate auctioneering, to regulate, license or prohibit the sale at auction of goods, wares and merchandise or of live domestic animals at public places within the corporation; and to regulate, license or prohibit the selling of goods, merchandise or medicines on the streets.”

This section and §3672 GC are in pari materia and must be construed together giving effect to both sections if possible. In so doing §3634 GC must be construed as being applicable to auctions and other sales made in a somewhat similar manner, to wit, by “street fakirs”, “medicine men”, etc., who operate from a fixed location in a street, get a crowd to gather around them and then proceed to give a lengthly sales talk on the merits of their product. Both are salesmen, in fact, one selling through competitive bidding and the other fixes his own price on his commodity. Under this interpretation full force and effect can be given to both sections. We therefore hold that §3634 GC does not confer .upon the City of Dayton the power to enact the ordinance under consideration. It is well established that a city cannot enact an ordinance which is in conflict with general law. The ordinance is not in harmony with §3672 GC.

A further reason that we consider the ordinance invalid is that it violates the property right of the plaintiff which is constitutionally protected against unwarranted and arbitrary interference by legislative bodies. The plaintiff’s right to pursue this occupation is protected by Article I, Sections 1 and 16 of the Constitution of Ohio, and by the Fourteenth Amendment to the Federal Constitution.

In Meyer v. Nebraska, 262 U. S. 390, Mr. Justice McReynolds, speaking for the Supreme Court, stated:

“The problem for our determination is whether the statute as construed and applied unreasonably infringers the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. ‘No State shall .... deprive any person of life, liberty, or property, without due process of law.’
“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, engage in any of the common occupations of life, * * * and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. (Citing cases.) The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.”

In syllabus 6 of Terrace v. Thompson, 263 U. S. 197, it is stated:

“The right to earn a livelihood following the ordinary occupations of life, is protected by the constitution.”

See also Yick Wo v. Hopkins, 118 U. S. 356; Olds v. Klotz, 131 Oh St 447; and Cincinnati v. Correll, 141 Oh St 535.

We do not think that it can be successfully urged that this ordinance comes within the police power granted to municipalities under Section 3, Article XVIII of the Constitution. This section provides:

“Municipalities shall have authority to exercise ail powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other regulations, as are not in • conflict with general laws.”

It will be noted that the constitutional grant of power uses the word “regulations” and not the word “prohibitions”. “Regulation” does not by any ordinary or usual definition include “prohibition”. On the contrary the grant of power to regulate would seem to negative the power to prohibit. Under the title “Municipal Corporations”, 37 Am. Jur., Section 280, it is stated:

“that express authority to regulative negatives by implication the power to prohibit. The power to regulate implies the existence, and not the destruction, of the thing to be controlled.”

The Ohio Supreme Court in Bronson v. Oberlin, 41 Oh St 476, held that the grant to a municipality of the power to regulate the sale of intoxicating liquors did not include the power to prohibit such sale.

Sec. 3632 GC grants a municipality power:

“* * * to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business there-on. * * *”

Here again the word “regulate” not “prohibit” is used. We recognize that the term “regulation” has been construed to include “prohibition” when the object of the legislative regulation is an inherently evil occupation, trade or business.

In Eighth Avenue Coach Corp. v. City of New York, 236 N. Y. at page 94, it is stated:

“When regulation becomes destruction, it ceases to be regulation.”

See also N. J. Good Humor, Inc. v. Board of Commissioners, 11 A. (2) 113.

In DeBerry v. City of LaGrange, 8 S. E. (2d) 146, the Court stated:

“As we have said before, the power to regulate such a business is not the equivalent of the power to destroy.”

In State v. Brown, 135 Me. 36, 188 A. 713, the Supreme Court stated at page 715, in dealing with a peddling exclusion ordinance:

“Under a general power to regulate and license a municipality cannot, directly or indirectly, entirely prohibit a useful occupation or privilege.”

It is further urged by the appellee that even if Section 3 of Article XVIII of the Ohio Constitution should be construed to include the power to prohibit, the power is subject to the limitation that the exercise of it must be reasonable. This limitation has been stated by the Supreme Court of the State of Ohio in the case of Froelick v. City of Cleveland, 99 Oh St 376; Olds v. Klotz, 131 Oh St 447; and Cincinnati v. Korrell, 141 Oh St 535.

We are of the opinion from the evidence submitted that the ordinance is unreasonable in that it destroys a lawful business instead of attempting to regulate it. There is no evidence that prohibition as distinguished from regulation is essential to the public welfare. The means adopted are not reasonable and appropriate to the professed end.

In the case Schul, et al. v. King, et al. 70 N. E. (2) 373, the facts are quite similar to the case at bar. Speaking on this subject the Court said:

“We find, even after giving consideration to the presumption of constitutionality which attends legislation, that this ordinance has no real or substantial relation to the safety, health or general welfare of the public. We find that this enactment is completely destructive of the plaintiff’s lawful business and is indefensible as a valid exercise of the police power.
The record in this case shows conclusively that the city prior to the adoption of this ordinance, made not the slightest attempt to adopt measures calculated to regulate so as to prevent whatever abuses or objections attended plaintiffs’ pursuit of their business. Prohibition of a lawful business is not justified even when all remedies for the prevention of the evil in connection with the business prove defective.”

See also Adam v. Tanner, 244 U. S. 590; Frecker v. City of Zanesville, 72 N. E. (2d) 477. The appellant cites the case of X-Cel Dairy, Inc., v. City of Akron, 16 O. O. 422, where the court held a similar ordinance to be neither discriminatory nor arbitrary. An examination of this case discloses that no testimony was taken and that the same was submitted upon an agreed, statement of facts. These facts are not reported, and it can not be said that they are on all fours with the case at bar. It further appears from this case that the only question considered was whether or not the legislation was unreasonable and discriminatory. It did not consider the same legal propositions supporting the invalidity of the ordinance which have been presented in this case, and it cannot, therefore, be said to be controlling.

For the foregoing reasons our judgment will be the same as that in the trial court.

HORNBECK and WISEMAN, JJ, concur.


author: Per CURIAM:

text:
    HATT, Estate of, In Re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21142.
    Decided February 21, 1949.
    John R. Kistner, Cleveland, for plaintiff-appellee.
    Robert Merkle, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

This is an appeal on questions of law from Probate Court by Margaret Weisenbach, the former and duly appointed, qualified and acting Executrix of the will of Anna S. Hatt, deceased, from a judgment of Probate Court which denied in part and allowed in part her application for allowance of expenses, compensation and attorneys’ fees, as set forth in her first partial account and final account filed in the estate.

The principal controversy on this appeal has to do entirely with the allowance of fees of the Executrix and her attorneys and this discussion will be confined to that proposition.

There is no issue as to the first forty-four items in the corrected first partial account nor in the first twenty-eight items in the final account, the correctness of which has been admitted by the appellee.

Application has been made by Attorney Robert -Merkle for substantial sums running into thousands of dollars for services rendered in defending the trust of the Executrix which was later defeated by reason of the successful completion of a will contest in Detroit, Michigan, in favor of a niece of the decedent. The Probate Court disallowed the claims for these services, both those of the Executrix and her counsel. We think that the Probate Court was correct in its judgment denying compensation for such services and in this respect the judgment of the Probate Court is affirmed. It is our view that these services were performed primarily for the personal benefit of the Executrix and her counsel as witnessed by Exhibit 18 as follows:

“AGREEMENT
THIS AGREEMENT, entered into at Cleveland, Ohio this 19th day of April, 1946. by and between ROBERT MERKLE, Attorney-at-Law, hereinafter called the First Party, and MARGARET WEISENBACH, both individually and as Executrix under the will of Anna Hatt, deceased, hereinafter called the Second Party;
WITNESSETH:
The said First Party, for the consideration hereinafter stipulated, has undertaken and does hereby undertake and agree with said Second Party to act as her attorney in securing the probate of the will of Anna Hatt, executed on or about the 31st day of October, 1942, in representing her in the administration of the estate of said decedent and in securing for her, individually, the rights provided for her under said will, and also in defending Second Party against turning over the estate of said decedent, which is now in her possession, to persons claiming the right thereto under purported wills executed or claimed to have been executed in the State of Michigan, and in consideration for the services so rendered and to be rendered by said First Party, it is agreed that he shall receive a sum of money sufficient to compensate him reasonably for all of the services rendered in connection with the administration of said estate, and in addition thereto, and separate and apart therefrom he shall receive a sum of money equal to 50% of all of the assets, real or personal which shall be vested in Second Party by reason of the will of said decedent, or by reason of any settlement that may be made in connection with the matters hereinabove mentioned.
The Second Party does hereby assign and set over to the First Party, an undivided 50% interest in and to her rights, both real and personal, under said will, and in and to .any and all claims for extra compensation or otherwise, and whatever amount may be received or recovered thereon, as security for the payment of his fees for services .as aforesaid.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands to this instrument in execution thereof, the day and year- first above written. •
IN THE PRESENCE OF:
(signed) Robert Merkle
Robert Merkle
(signed) Margaret Weisenbach
Margaret Weisenbach”

However, the Probate Court disallowed other items which in our opinion should have been allowed.

Probate Court disallowed fees for appraisers appointed by the court in the sum of $75.00 each, which should have been allowed. Probate Court disallowed court costs in the amount of $15.40 to Probate Court which should be allowed.

It appears that during the time the principal branch of this case was on appeal that moneys accounted for by the Executrix passed through her hands at the expenditure of her time and effort and that she should be allowed the statutory fees therefor as requested by her in the sum of $592.83 as shown in Item forty-eight on her corrected first partial account and of $54.00 in her final account. It also appears clearly that during the time of appeal the Executrix had to manage the collections on numerous mortgages and collect rents on real estate to pay real property taxes and make the necessary returns in reference thereto. Therefore, in our opinion she should be allowed a sum of $395.00 as shown on Item forty-nine in her corrected first partial account and $234.00 as shown in Item twenty-nine in her final account.

The Court allowed to Attorney Steven W. Kormendy the sum of $500.00 for services rendered during the lifetime of decedent, but denied allowance for similar services rendered during the lifetime of decedent to Attorney Robert Merkle. We are of the opinion that compensation should be allowed to Robert Merkle for like services in the same amount, namely $500.00, although this is considerably less than is being applied for.

The Court disallowed fees and expenses of Attorneys Miller, Canfield, Paddock and Stone, of Detroit, for services rendered in connection with the employment of said attorneys by the Executrix in contesting the will in Michigan. We affirm the judgment of the Probate Court in this respect.

The Court allowed to Attorney Robert Merkle the sum of $250.00 for services rendered to the estate outside of the services performed by him in defending the trust. In our opinion, counsel is entitled to compensation more commensurate with the services rendered. This sum is difficult of ascertainment. In our opinion, counsel should be allowed at least the sum of $500.00 for these services.

In view of the foregoing, the judgment of the Probate Court is modified as herein set forth and as modified is affirmed.

A Journal Entry may be drawn accordingly.

MORGAN, PJ, SKEEL, J, and HURD, J, concur.


author: By HORNBECK, J.

text:
    ELGIN, Plaintiff-Appellant, v. HEATON, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4178.
    Decided February 11, 1949.
    Williams, Williams & Reynolds, Columbus, for plaintiff-appellant.
    Paul R. Gingher, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

The appeal is on questions of law from a judgment of the Municipal Court of the City of Columbus, entered on a verdict of a jury directed by the trial judge at the conclusion of plaintiff’s case in chief.

Six errors are assigned but one only is urged in appellant’s brief, namely, the sustaining of defendant’s motion for directed verdict at the conclusion of plaintiff’s case.

The action was for property damages alleged to have been suffered by plaintiff by reason of the negligence of the defendant. The essential facts are that the plaintiff is and was on December 1, 1946, the owner of a single brick dwelling house, known as 1592 Richmond Avenue and situated at the northwest corner of Richmond and Parkwood Avenues in the City of Columbus, Ohio; that on said date the defendant, driving a Cadillac passenger car, was moving west on Richmond Avenue and when he had reached an intersection of this street with Parkwood Avenue, his car came into collision with a passenger car moving north in Parkwood. The Cadillac was struck when it had passed the center line of Parkwood Avenue and showed the effect of the impact at the juncture of the left front fender and the door. When the cars finally came to a stop the Cadillac was just up over the curb west of the intersection at a forty-five degree angle, headed northwestwardly, resting among some bushes. The other car was in Richmond Avenue west of the intersection. By traffic regulations, the Cadillac, if proceeding in a lawful manner, had the right of way over the other automobile. There is no testimony as to the specific rate of speed of either car preceeding or at the time of the collision. Witnesses describe the sound of the collision of the cars and the subsequent impact of the Cadillac with plaintiff’s house, “sounded like a couple of cannons going off and then a machine gun” or “a shot”. It developed that after the collision the Cadillac moved across Richmond Avenue, over the curb and the pavement and into the yard, travelling a distance of 30 feet from the curb and striking a porch on the residence of plaintiff. The yard had an incline of three feet from the curb to the porch. The car struck one of the pillars of the porch, totally destroying it and leaving the bricks lying over the yard and porch, damaged another pillar, knocked out a portion of the lower part of the porch and several rails and moved the whole porch an inch or two out of line. Evergreens, shrubbery and grass in the yard were also destroyed. The Cadillac after striking the porch was caused to move back some twenty feet from the house and there came to rest. The brick pillars on the porch were, according to one witness, 2, or 3 feet at the base and of solid brick up to the roof.

A witness testified that the Cadillac as it approached the house “shot forward like a bullet from a gun”, but upon objection this was stricken. This testimony was competent and some evidence of the rate of speed. It was testified that the bill for the repair of the porch was $215.60, and that in addition thereto the property had been damaged in the sum of $200.00.

It was stated that soon after the collision when a police officer was investigating the accident the defendant said “it was his fault and that he would pay for the damages”. The wife of plaintiff also testified that the defendant, while on her premises after the. collision, said “it was his fault and that he would pay for the damage”. Another witness, Mr. Cott, said that shortly after the accident defendant stated that “Mr. and Mrs. Elgin were not to worry about their damage”, q,nd a similar statement was made by ’phone the next day by defendant.

The charges of negligence against the defendant were that he drove his automobile at a rate of speed greater than was reasonable and proper, failing to have his automobile under control and failing to stop it in time to avoid the impact with the porch of the dwelling house.

The section of the statute involved is §6307-21 (a) GC,

“No person shall operate a motor vehicle, * * * upon the streets * * * at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing, * * *.”

The rates of speed which shall be prima facie lawful and in excess of which shall be prima facie unlawful are set out in the section.

It is a violation of §6307-21 (a) GC to drive an automobile at a -rate of speed faster or slower than is reasonable and proper under all the circumstances appearing therein. It is significant that one may violate this section by driving too slowly. The emphasis is placed upon reasonable and proper speed. Manifestly, the attending circumstances weigh heavily in testing the question of nonobservance of the statute. In open country, on a wide thoroughfare with ideal weather conditions and little traffic, a rate of speed could be indulged far in excess of that which would be safe at an intersection in a congested section of a city.

Rates of speed have been fixed by witnesses from varying physical factors, such as skid marks, distance that a car traveled after a collision, noise made by the motor of a moving car, the probable distance that an automobile traveled after the collision.

The force which was exerted to cause the wreckage to the porch, and other damage, has, in our judgment, probative effect on the ultimate question of the reasonableness of the speed of defendant’s car.

Our Supreme Court has been very strict in applying the latter part of the section here under consideration, the assured clear distance ahead portion thereof, even to the extent of imputing contributory negligence to an automobilist who struck another car on its wrong side of the road just over the brow of a hill. Smiley v. Arrow Metal Spring Bed Co., 138 Oh St 81.

Plaintiff’s evidence, undenied and uncontradicted, in our judgment was such that reasonable minds might differ as to the conclusions to be drawn from it and therefore should have been presented to the jury for determination whether or not any negligence asserted had been proven. Hamden Lodge, I. O. O. F. v. Ohio Fuel Gas Company, 127 Oh St 469; Wilkeson v. Erskine & Son, 145 Oh St 218.

Appellant cites Esterly v. Youngstown Arc Eng. Co., 59 Oh Ap 207, and particularly an excerpt from the opinion of Judge Nichols at page 213, wherein in part he said:

“We are unwilling to hold that the speed of defendant’s car is to be determined solely by estimates put thereon by witnesses who saw the car at the time. In fact, it is the belief of the writer of this opinion that estimates of speed made by witnesses who observe an approaching car are the least reliable means of finding such speed.”

In the cited case no witness for the plaintiff had testified as to the rate of speed of defendant’s automobile which was prima facie unlawful under the statute. The physical facts surrounding the collision and the effect thereof are commented on at length in the opinion and it is concluded that the court did not err in submitting the question of defendant’s excessive speed to. the jury.

We have many times commented on the fact that the gist of the offense defined here under consideration is unreasonable or improper speed under all the circumstances set out in the statute. Vatel v. Meiklejohn, et al., 12 Abs 567; Davies v. Marshall, Admrx., 13 Abs 282; Schmidt v. Kinney, 19 Abs 54.

After all, the simple question here is, may facts from which inference of considerable speed may properly be drawn make a prima facie case in the absence of any testimony fixing, by opinion, the rate of speed in miles per hour at which the automobile was moving? Obviously, if one witness had fixed a rate of speed of the Cadillac at 36 miles per hour a case would have been made for the jury, but could it be said, had a witness fixed the rate of speed at only 20 miles per hour that under all the circumstances there could not be a violation of the statute? The rate of speed in miles per hour is but one element to be considered in applying the test of reasonable and proper speed.

We are cited to the case of West v. Jaloff, 232 Pac. 642; 36 A. L. R. 1391, in which the factual situation developed was much like the facts appearing in this case. The court there held that the evidence adduced was sufficient to go to the jury as proof of violation of a statute where the speed limit was 12 miles per hour. The action in the cited case was by a third person who had been injured by being struck by defendant’s automobile which ran into a yard and was carried part way into the house where plaintiff was injured. The defendant had the right of way which was urged in his behalf, but the court directed attention to the fact that “granting the right of way is one thing, and granting the right to exceed the statutory speed is another”, and that the damage to plaintiff may have resulted from the joint negligence of the parties involved in the collision.

If the defendant had sued the driver of the car which came into contact with the Cadillac, would not the facts appearing in the instant case require a submission to the jury of the question of.his contributory negligence?

The right of way of the defendant was qualified by the necessity that he approach the intersection in a lawful manner and that is the issue which is raised here upon the charge of negligence in the petition, the answer thereto and upon the evidence.

In addition to the evidence which we have discussed tending to establish unreasonable speed in the operation of the Cadillac, we have defendant’s statements that he was at fault, that he would pay the damage for which he was responsible. These were clearly admissions against interest by a party to the suit and were properly admitted. But it is urged that the admissions may have been made without full appreciation of their legal implication and that it may have been that the force of the automobile striking the Cadillac caused it to swerve and to move up the terrace and strike the house, or that the impact may have caused the defendant unwittingly, momentarily to put his foot on the accelerator. All of these exculpatory conclusions may have been the facts but they are negatived by the admissions of the defendant.

It may not be questioned that declarations such as are involved here are generally admissible, 29 O. Jur. 685, 38 Am. Jur. 1021, and for the purpose for which the admissions were submitted, Helman v. Railroad Co. 58 Oh St 400. That such admissions are accepted as substantive proof is held in Kaczmarek v. Murphy, 78 Oh Ap 449, and in Linnehan v. Sampson, 126 Mass. 506.

In Strickland v. Davis, 221 Ala. 247, 118 A. L. R, 1232, the declaration of the defendant was that he was at fault. It was there held that the admission was a circumstance to be weighed by the jury upon the ultimate question of the legal liability of the defendant. So it is here. We are not required to' hold that the statements alone, undenied and uncontradicted, would support a verdict but whether in conjunction with the other testimony made a prima facie case which should have been submitted to the jury.

In the oral argument, considerable attention was directed to the claim that the application of the res ipsa loquitur doctrine required the submission of the case to the jury and we are cited to Fink v. New York Central Rd. Co., et al., 144 Oh St 1, in support of appellant’s contention. However, it does not appear that this claim of the plaintiff was called to the attention of the trial judge at any time during the trial of the cause, although presented on the motion for new trial, nor is it made the subject of specific assignment of error.

In Fink v. New York Central Rd. Co., supra, Judge Bell, at the conclusion of his opinion, after holding that the res ipsa loquitur doctrine applied, said that,

“It is the duty of the court, when requested so to do, to submit the question to the jury under proper instructions.”

In Loomis v. Toledo Rys. & Lt. Co., 107 Oh St 161, the rule was invoked by the plaintiff in special requests for a charge to the jury after argument. We cannot say that the record permits the conclusion that the plaintiff saved the question in a timely manner nor that it is presented to this court for determination.

The motion of the defendant to direct a verdict at the conclusion of plaintiff’s case should have been overruled. The motion for new trial should have been sustained. The judgment will be reversed and cause remanded.

MILLER, PJ, and WISEMAN, J, concur.


author: By HURD, J.

text:
    BERMAN, Ex Parte. KRAUSE, Ex Parte.
    Nos. 21482 & 21484.
    Decided April 16, 1949.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Land & Land, W. J. Martindale, Elsie Tarcai, Cleveland, for Norman Berman and Joseph Krause Relators.
    Frank T. Cullitan, County Pros., Saul S. Danaceau, Asst. County Pros., Cleveland, for Respondent.
    (DOYLE, J, HUNSICKER,' J, of the 9th District sitting by designation in place of MORGAN, PJ, SKEEL, J.)
   OPINION

By HURD, J.

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

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

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

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

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

Do the accused have a light to bail pending trial?

Article I, Sec. 9 of the Constitution of Ohio provides:

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

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

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

Article I, Section 9 of the Federal Constitution, and Article I, Sec. 8 of the Ohio Constitution provide that the privileges of the writ of habeas corpus shall not be suspended unless in cases of rebellion or the public security require it. Article 4, Section 6 of the Ohio Constitution provides that the Court of Appeals shall have original jurisdiction in habeas corpus. Therefore, there can be no doubt of the jurisdiction of this court to hear and grant relief in a case such as this, where the evidence clearly shows that the trial court has refused to allow bail or to grant a trial forthwith.

The Supreme Court of Ohio approved this procedure and defined the constitutional right in the case of State of Ohio v. Bevacqua, 147 Oh St 20. The p.ertinent part of the syllabus is as follows:

“But the constitutional right of non-excessive bail in bailable offenses, may be fullly protected by suing out a writ of habeas corpus in a court of competent jurisdiction.”

At page 22 of the opinion the court say:

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

Sec. 12139, In Chap. 3 GC, dealing with contempt of court, provides in part:

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

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

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

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

As before stated, we are of the opinion that the instant cases do not come within the purview of the foregoing section. However, it is our further view that if these actions should be governed by §12136 GC it would be the duty of the court none the less to fix bail if it did not proceed summarily to punish the person found guilty. Failure of the court to punish summarily would not justify the commitment of the accused for trial at some later date, without fixing bond for appearance. The constitutional guarantees must still prevail.

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

The provisions contained in the Bill of Rights respectively of the Federal and Ohio Constitutions defining the fundamental rights of all persons to equality of justice, the freedoms of religion, speech, press and assembly, the privacy of the home, the right of trial by jury, in criminal cases, the guarantees against cruel and unusual punishment and against excessive bail, and providing for the right to bail before trial (except in capital cases) are self-executing and require no legislative or statutory authority to support or implement them.

In the world of today, the great enduring basis for liberty and freedom is in the government of the United States with its great ideal of equal justice under law and its basic concept that ours is a government of laws and not of men.

“From time immemorial, the most conspicuous feature of history has been the struggle between liberty and authority. Today, as in ages past, we are not without tragic proof that the exacted power of some governments to ignore the inalienable right of the individual to liberty and to resort to lawless enforcement of the law is the handmaid of tyranny. No higher duty, no more solemn responsibility rests upon the courts than to maintain the constitutional and statutory shields planned and inscribed to preserve liberty under law and protect each individual from oppression and wrong from whatever source it may emanate.”

(White, Justice, in Ware v. Dunn, 8 Oh Ap (2d) 936 at page 945.)

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

Holding these views, the writs of habeas corpus are granted forthwith, conditioned upon the petitioners giving bond with sureties to the satisfaction of the clerk of court in the sum of $500.00 each for the appearance of the accused to answer the charges against them.

DOYLE, J, HUNSICKER,-J, concur in judgment and opinion.

      Note 1: Other cases coming before this court, growing out of the same case, in which applications for writs of habeas corpus were allowed, when the, trial judge refused or failed to set bail on application or grant trial forthwith, are as follows: Apr. 13, 1949, No. 21476, Ex Parte Jos. Kres; No. 21477, Ex Parte Freida Kreitner; No. 21478 Ex Parte Robert Evans; No. 21479, Ex Parte Norman Berman (1st arrest) (writs allowed by Skeel, (acting) Presiding Judge; Hurd J. Guernsey J. of 3rd Dist. sitting by designation in place Morgan P. J.) Apr. 14, 1949; No, 21480, Ex Parte Dolph M. Barnett; No. 21481 Ex Parte Foster McCurdy; (Skeel J. (acting) Presiding Judge and Hurd J. — writs allowed).


author: By MILLER, J. By HORNBECK, J.

text:
    BROWN, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4184.
    Decided October 28, 1948.
    R. N. Larrimer. Robert E. Hall, Columbus, for plaintiff-appellant.
    Hugh S. Jenkins, Atty. Geni., R. Brooke Alloway and V. A. Ketchem, Jr., Asst. Attys. Geni., Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This appeal arises out of a claim filed with the Industrial Commission of Ohio, under the provisions of the Workmen’s Compensation Law. The same was disallowed and upon appeal to the Court of Common Pleas, at the conclusion of all the evidence the defendant-appellee moved for a directed verdict, which motion was sustained.

The errors assigned are:

1. The Court of Common Pleas erred in sustaining defendant’s motion for a directed verdict at the close of all the evidence.

2. The verdict of the jury is contrary to law and against the manifest weight of the evidence.

The facts material to the issues herein presented disclose the.t the plaintiff-appellant, Ben Brown, was employed by the Sehiff Company as a sealer, that his duties consisted of sealing up the ends of cartons of shoes after they had been filled with shoes by other fellow employees. Brown worked by himself, although in the room with him were other employees. At about 2:30 P. M. on the date of the injury Brown observed two boys who were packers using old shoe boxes about to fall apart; that since these damaged boxes make considerably more work in the process of the sealing, Brown remarked, “Who done that packing, those boxes are broken”? Hearing no answer to his inquiry he again asked concerning the packing whereupon one of the packers by the name of Baker answered and called Brown some vile names. Baker was one of the packers who had used one of the broken boxes. For the following fifteen minutes Baker continued his profanity and vile name calling towards Brown. Baker taunted Brown and told him he was too yellow to take off his glasses. Brown took off his glasses and advanced towards Baker who made a pass at him with his fist and missed him. Immediately thereafter they clinched, both parties falling to the floor where they remained for about two minutes. When both parties got up, Baker pulled a knife and Brown started circling around to keep away from him. Baker then chased Brown who ran out of the building and then returned some five minutes later. Upon his return to the building Baker ran up to him and hit him over the head with a piece of pipe which resulted in the injuries complained of.

The defendant’s motion for a directed verdict was based upon the premise that the plaintiff had offered no evidence tending to show a causal connection between the injury and the employment. The trial court found that an altercation ensued between Brown and Baker, which arose out of the work being done for the employer, but that this altercation had ended some five minutes prior to the injury complained of and therefore there was no causal connection between the employment and the injury. This is an essential requirement in order to entitle the plaintiff to compensation under the Workmen’s Compensation Law of Ohio. Industrial Com. v. Weigandt, 102 Oh St 1. We are in accord with these conclusions of the trial court. The appellant is in agreement with the finding that there was sufficient evidence to submit to the jury concerning the connection of the employment with the first altercation, but is contending that the Court erred in finding as a matter of law that the first altercation had ended some five minutes previous to the injury. He is contending that the quarrel between Brown and Baker from its inception to its termination was one continuous transaction. Brown himself testified that after he left the building it was five minutes before he saw Baker again. The trial court relied strongly on the case of Williams v. Industrial Commission, 63 Oh Ap 66. We think the facts are almost parallel to those in the case at bar. In the Williams .case Dunbar was putting wax on a ball room floor when Williams came in and snatched the can out of his hand, stating that he had previously waxed the floor himself. Some heated words ensued. They then walked out into the hall together where the argument was renewed resulting in a fight and the injury. At page 70, Lloyd, J., said:

“Reverting to the evidence it clearly shows that the fisticuff match started in jest and ended in earnest and that it was instigated and commenced by Williams and that the cause of Williams’ injury, which resulted in his death, was entirely outside of and disconnected from the business in which he was employed.
“Under the authority of Industrial Commission v. Weigandt, 102 Oh St, 1, 130 N. E. 38; Industrial Commission v. Bankes, 127 Oh St, 517, 189 N. E. 437, and Highway Oil Co. v. State, ex rel. Bricker, 130 Oh St, 175, 198 N. E. 276, it is conclusively clear that the trial court should have directed a verdict for the appellant Industrial Commission. Failing to do so, it should have granted the motion of appellant for a judgment notwithstanding the verdict.”

The trial court also “relied on the case of Martin v. Sheffield Steel & Iron Co., an Alabama case, reported in 114 So 578, which we also think is similar to the case at bar. In this case there was a quarrel between two employees which started over the work in which they were engaged. Shortly thereafter during a rest period the argument was renewed at which time the fatal injury was received. The Court held that the injured employee was not entitled to compensation in view of the Workmen’s Compensation Act excluding liability when injury is inflicted by fellow workman for reasons personal to him and not relating to his employment.

Counsel for the appellant have cited a number of cases from Ohio and other jurisdictions which are of little value to us as not being based on facts similar to the case at bar. It is our conclusion that the cessation of hostilities broke the causal connection existing at the time of the original encounter and that there was no causal connection between the employment and the injury at the time it was received. We find no merit to any of the other ertors assigned, and the judgment is affirmed.

WISEMAN, PJ, concurs.

By HORNBECK, J.

I believe there was a factual issue whether the second encounter was but a continuation of the first.

I concur in the judgment.