text:
    COLUMBUS (City), Plaintiff-Appellee, v. HOHMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5489.
    Decided October 29, 1956.
    Chalmers P. Wylie, City Atty., William T. Gillie, City Pros., Columbus, for plaintiff-appellee.
    John L. Rittinger, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Appellant was charged in the Columbus Municipal Court with the violation of Section 18.65, City Ordinance, in that, “on the 11th day of February, 1956, at the City of Columbus, he did unlawfully leave valve open on gasoline truck while putting gasoline in underground tank, leaving immediate vicinity of tank truck which resulted in the overflow of 200 gallons of gasoline.” That part of the ordinance to which the affidavit is applicable reads:

“All tank trucks delivering petroleum liquid shall have approved vent and draw-off faucets and the person in charge shall remain at the valve while delivery is being made.” (Emphasis ours.)

After the City and the defendant had rested, the trial judge found the defendant guilty as charged and pronounced sentence upon him. Appellant assigns four errors, three only of which are specific:

1. That the court erred in overruling defendant’s motion to dismiss at the close of plaintiff’s testimony and at the close of defendant’s testimony.

2. That the court erred in failing to set aside the judgment of said ' court upon motion for a new trial and to grant appellant a new trial.

3. That the decision was contrary to law and against the weight of the evidence.

At the conclusion of the case made by the City, counsel for defendant moved for dismissal on the grounds that no showing had been made that the defendant was in the station while the gasoline was running and that it did not appear when defendant went into the station.

The only testimony going to the material elements of the offense, except the fact that defendant was putting gasoline in an underground tank, is that of two officers of the Fire Department of the City of Columbus.

Lt. Iloe Ogborn testified as follows: That he had been sent to the gasoline station where the gasoline had overflowed; that he found that much gasoline had overflown on the ground at the rear of the station; he stated that he presumed that this gasoline came from an overflowing tank; (not probative); he told what was done to relieve the situation and to dispose of the gasoline and then at page 5, et seq., of the record, these questions and answers:

“Q. Did you talk with this defendant out there?
“A. He told me upon arrival, he showed me where it was at.
“Q. What did he tell you? Did you have conversation with him?
“A. He told me he lost about two hundred gallons of gas.
“Q. What else did he tell you, if anything?
“A. He said he had been in the station.
“Q. And where are these storage tanks located, in the front or the rear?
“A. The filling pipes are in the rear of the station, rear of the building.
“Q. That is you fill them from the tank truck in the underground tanks in the rear, is that right?
“A. That’s right.
“Q. Was that all the conversation you had with him?
“A. That’s all, sir.”
On cross-examination:
“Q. Did he tell you when he was in the station?
“A. No, sir.
“Q. He didn’t tell you when it was he went in the building?
“A. That he had been in the building is what he said.”

Manifestly, this testimony is not of sufficient probative effect, if true, to establish the controverted essentials of the offense charged.

Lee Specht, Lieutenant in the Fire Prevention Bureau, present at the site of the overflow of the gasoline, testified as follows:

“Q. I will ask you if you were out at Parsons and Deshler at the Standard Oil Station out there?
“A. Yes, sir.
“Q. About what time were you there?
“A. I received the call at 11:08 P. M.
“Q. What did you do after arriving there?
“A. The only thing seen on the report said gasoline spilled out there. When I arrived at the scene No. 5 Pump Company had water on it. There was quite an amount of gasoline spilled. I talked to the defendant and I asked him how much gasoline he thought got away. He told me about two hundred gallons.
“Q. Did he tell you how it happened?
“A. I asked. He said he went inside the station to make up some bills.”

This last question and answer afford the only basis of proof of the material averments of the affidavit which are controverted, namely, that the defendant left a valve open on a gasoline truck while delivery was being made.

An inference may be drawn that the gasoline which was spilled on the ground was so spilled by leaving the valve open which controlled the flow, but this does not rule out the inference that the gasoline may have overflowed at a time when the defendant was not delivering gasoline to the underground tank. The evidence for the City that the defendant said that the overflow happened when he went inside the station to make up some bills does not necessarily require that the happening to which he referred was leaving the valve open while he was in the act of filling the tank.

Proof that the defendant was in charge of the tank truck did not appear from the testimony of the City, but was only developed by a witness for the defense.

The meager testimony produced by the City, in chief, failed to establish all the essentials incumbent upon it to prove. Too many inferences must be drawn from the statement of defendant as told by Lt. Specht, if true, to support the conviction of defendant upon the case made by the City when it rested.

No citation of authority is necessary for the proposition that in a criminal case proof must be beyond a reasonable doubt and must dispel every reasonable inference of innocence.

We are of the opinion that the motion to dismiss should have been sustained at the conclusion of the City’s case.

However, if the City made a case which entitled it to go to the jury, then the explanation of the defendant together with his supporting testimony of how the overflow occurred is convincing that he should not have been convicted.

As we have said, the only testimony of an incriminating character was the alleged statement of the defendant that the overflow happened when he went into the station. Defendant testified that not only was he at all times within arm’s reach of the valve controlling the flow of the gasoline, but that he did not go into the station during the overflow or until after it had occurred. He and a station attendant testify that he was in the station before he began to unload the gasoline and after the overflow. The attendant says that had the defendant been in the station at the time attributed to him by his statement to the officer, the attendant would have known of his presence and that he was not there.

The further explanation of the defendant that the overflow occurred after eleven o’clock at night; when he faced the supply tank on the truck where the valve was his back was to the tank which was being filled; that he could not see the flow of the gasoline because of the dimness of the light and that he could not hear the movement of the gasoline into the truck because of the noise in the street where the station was located.

The class of testimony upon which the defendant was convicted, a statement against him by a report of a conversation, must be cautiously considered and such testimony is many times unreliable not because the witness wilfully distorts the conversation, but because of the possibility of error in the tendency of the witness to interpret a conversation as he understood it. 12 O. Jur. 382.

The errors assigned are well made.

The judgment of this court will be a vacation of the sentence and judgment and a dismissal of the charge against the defendant.

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


source: Caselaw Access Project

author: By ALEXANDER, J.

license: Public Domain

text:
    O’CONNOR, Jr., Plaintiff, v. O’CONNOR, Defendant.
    Common Pleas Court, Lucas County.
    No. 42766.
    Decided April 9, 1957.

      John F. Mcllhargey, for plaintiff-husband.
    George H. Fell, Wm. Kent Fenton, for defendant-wife.
    Fuller, Harrington, Seney & Henry, William L. Kreutz, for defendant-The Toledo Trust Company.
   OPINION

By ALEXANDER, J.

THE FACTS

This action for divorce was brought by the husband. Defendant-wife, hereinafter called “the wife,” filed an answer and cross-petitions for divorce, alimony and child-support. The Toledo Trust Company, trustee of a living trust in which the husband is a named beneficiary, was made a party defendant.

When the cause came on for hearing on the merits, the petition was withdrawn and the hearing proceeded without contest on the wife’s amended cross-petition. Plaintiff, hereinafter called “the husband,” was found guilty of gross neglect of duty and extreme cruelty, entitling the wife to a divorce and custody of the children, which were duly granted. All parties, including the Trustee, agreed to continue the cause to permit the filing of briefs and further hearing to determine whether the trust could be invaded by the wife, whose only hope for any alimony and child-support appears to lie in attachment of the husband’s interest in the trust. He is what might be termed an intermittent incompetent, having twice been adjudged mentally ill. Since commencement of this action he has been legally restored to competency and has now remarried. However, all mention herein of the wife will refer to defendant Martha, his divorcing wife.

In 1949 John O’Connor Sr. created a living trust, conveying certain assets to The Toledo Trust Company in trust for certain beneficiaries. He died in 1952 leaving his widow, Irma, and son, John Jr., who was unmarried at the time the trust was created, but who married defendant Martha July 23, 1951 and has two children, Therese Marie, born May 17, 1953 and Gerard Kevin, born September 1, 1954. The Donor also left a sister, a nun in Cleveland.

ARGUMENT

The Trustee opposes the wife’s intention to invade the trust, taking the position that she may not be permitted to reach the husband’s interest in either income or corpus for four reasons:

1. He has no vested interest in the trust.

2. He has a mere expectancy or hope of gratuities.

3. Alienation, voluntary or involuntary, is expressly forbidden, and must result in forfeiture of whatever interest he has.

4. The trust is discretionary, ergo unassailable even for support of wife and children of a beneficiary.

We are constrained to find that (1 and 2) the husband’s interest, while a future interest subject to defeasance, is a vested remainder, and more than an expectancy or hope, and would in any event be alienable; (3) partial alienation for the benefit of the wife and children need not and should not be permitted to work a forfeiture; (4) the trust is not purely discretionary; it is a spendthrift trust which could become a discretionary support trust, resembling what the English call a protective trust. The forfeiture provided for is not an absolute forfeiture, but a mere modification of conditions, leaving the Trustee with legal title and a positive duty to support the husband, and leaving the husband’s beneficial interest still vested in him. We shall try to explain the reasons for these findings after examining the Trust Agreement in some detail.

THE TRUST AGREEMENT

ARTICLE III “Beneficiaries.” (Essentials only):

(1) Provisions apply only during Donor’s life.

(2) Provides for payment of taxes upon Donor’s death.

(3) “. . . the entire net income shall be distributed to Donor’s said wife (Irma, now living) in quarterly . . . installments so long as she lives.” (Note, this provision is mandatory.) “In addition . . . the Trustee in its sole judgment and discretion, may distribute to or for her benefit . . . such sums from the principal ... as it deems necessary . . . but the Trustee, in passing upon the need for such principal distributions . . . shall take into consideration her income from this and from all other sources.” (Note, this is regarded by the Trustee as tantamount to a discretionary power to consume.)

(4) “Upon the death of Donor’s said wife, Irma, . . . the property remaining . . . shall be held in trust for the benefit of Donor’s son . . . and until the complete distribution of the trust for his benefit has been made . . . Trustee shall distribute to, or for his benefit, the entire net income ... in quarterly . . . installments.

“The principal . . . shall be distributed as follows: When Donor’s said son attains the age of 35 years, . . . the Trustee shall pay to him the sum of $5,000. If and when (he) attains the age of 40 years, . . . the Trustee shall distribute to him one-third of the principal. . .” (Note, these provisions are mandatory.) “When Donor’s said son attains the age of 45 years, the entire remaining trust property shall be distributed to him . . . provided . . . Trustee, in . . . its . . . discretion . . . (may) . . . refrain from making such principal distribution . . . and so long as the principal is so retained . . . the Trustee shall continue to distribute to Donor’s son, or for his benefit, the entire net income . . . together with such portions of the principal thereof as it deems conducive to said son’s welfare.” (Note, these provisions are mandatory as to income, discretionary as to principal.)

(5) Provisions applicable only if John Jr. predeceases his mother Irma.

(6) In that event (apparently) 10% of the trust res goes outright to Donor’s sister, the nun, if living.

(7) a) “If Donor’s said son is survived by issue of his body only, the entire remaining trust property shall immediately vest in such issue per stirpes, but distribution . . . shall be withheld . . . until they . . . (reach) ... 21 years, pending which time the Trustee, in its . . . discretion, may distribute to or for their benefit . . . income, or principal, or both ... for their suitable support, comfort, maintenance and education.” (Note, there is no discretion as to the vesting of the grandchildren’s interest; only as to their enjoyment of it during minority. Another reason for quoting this article is for the bearing it has on the question of Donor’s intentions with reference to his grandchildren’s support and general welfare.)

(7) b) Similar provisions in case son leaves spouse and children, one-third being set aside for spouse, two-thirds for children, with mandatory provision that spouse receive income, and discretionary provision that she receive “such part of the principal thereof, as it deems necessary and conducive to her general welfare.” (Note, again Donor’s intention is reflected, this time as to son’s spouse.)

(7) c) “If Donor’s said son is survived by a spouse only, . . . Trustee shall distribute to her during her lifetime the entire net income from the trust property.” (Note, same comment.) After her death income and principal go to other named and unnamed beneficiaries.

(8) Provisions applicable only in case son predeceases both father and mother and leaves neither spouse nor issue.

(9) Provisions to meet the rule against perpetuities. Not applicable.

ARTICLE IV.

Prohibition against Alienation

“No payment . . . shall be alienated ... in any manner ... by any of the beneficiaries; and, if ... by reason of . . . event or cause of any nature whatsoever said payments or interest otherwise intended for said beneficiaries . . . shall wholly or in part cease to be enjoyed by them, or any of them, and the same . . . but for this proviso would become vested in some other person . . . the trust . . . shall thereupon cease and determine and . . . shall thereafter be held and distributed by the ■Trustee during the remainder of the life of such beneficiary . . . according to the absolute discretion of the Trustee; but the Trustee may pay to such beneficiary ... or for his . . . maintenance and support, or to the . . . wife, child or children of such beneficiary . . . such sums as said Trustee, in its absolute discretion, shall deem advisable, . . .”

DISCUSSION

Quaere: Does husband have anything presently alienable? It is difficult to see why this question is not fully answered by the statute we adopted from New York 25 years ago, §2131.04 R. C.:

“Remainders, whether vested or contingent, executory interests, and other expectant estates are descendible, devisable and alienable in the same manner as estates in possession.”

But if for some reason not discernible to this Court above statute should be held inapplicable, we may turn to the decisions of the courts Without careful analysis of the older reported cases in Ohio construing trust agreements like the one before us, this very question seems to have been answered decisively and affirmatively by two very recent Ohio decisions.

In First National Bank of Cincinnati v. Tenney, 165 Oh St 513, Ohio Bar, Nov. 5, 1956, the Supreme Court held (Syl. 2):

“An inter vivos trust which reserves to the trustor the income for life and an absolute power to revoke during his lifetime, with a remainder over at his death, creates in the remainderman a vested interest subject to defeasance by the exercise of the power to revoke.”

(See also Court of Appeals opinion, same case, 101 Oh Ap 531, Ohio Bar, Feb. 25, 1957.

In Erman v. Erman, 101 Oh Ap 245, O. L. R. Jan. 14, 1957, the Hamilton County Court of Appeals holds (Syl. 2):

“A bequest by will of a sum of money, with power to have the full use and disposition of this, both principal and income, during her lifetime, with full power to consume or dispose of the principal as she sees fit, followed by a gift over to trustees of a testamentary trust of any remainder, creates a life estate, with power to consume the entire principal. Such gift over of that which remains of the bequest, not being in contravention of public policy, is valid, and is a vested estate in the remainderman.”

In the Cincinnati Bank case the remainderman’s interest would be defeated if trustor exercised his power to revoke; in the Erman case, if the life tenant exercised her power to consume; in the case before us, if the Trustee in exercise of the discretion granted it in Section 3 paid out all the assets to the life tenant (Irma). The first two remainders were specifically held to be vested. Why not the third? The matter would seem to be clinched by the Supreme Court’s opinion in the Bank case which quoted Simes and Smith in The Law of Future Interests (2 Ed.), Section 113, illustrating a remainder as vested although subject to being defeated by “a power given to a trustee to invade the corpus of the trust for the benefit of some person or persons.”

But no matter how securely and firmly vested the interest, Article IV in the trust agreement before us specifically imposes a restraint on alienation, voluntary or involuntary, and professes to invoke a forfeiture of the interest invaded. While the restraint here imposed would be respected in many jurisdictions and an ordinary creditor would be precluded from invading the trust, the distinct weight of authority makes some exceptions, especially in favor of a claim by a beneficiary’s wife and children.

The Restatement of the Law of Trusts found this to be the law more than 20 years ago:

“Sec. 157. Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary,
“(a) by the wife or child of the beneficiary for support, or by the wife for alimony; . .

In Scott on Trusts, 2d. Ed. 1956, Sec. 157, the author cites over 30 cases from 16 jurisdictions and a substantial number of law review articles in support of the rule quoted from the earlier Restatement, and about half as many cases taking the opposite view.

It seems to us to be an inescapable conclusion that the restraint on alienation set forth in Article IV definitely falls within the standard definition of a spendthrift trust: “A trust in which by the terms of the trust a valid restraint on the voluntary and involuntary transfer of the interest of the beneficiary is imposed is a spendthrift trust.” (Restatement of Trusts, Sec. 152 [2].)

Attention is called to Art. Ill, Sec. 4) of the Trust Agreement. Upon the death of Donor’s wife, Irma, the provision requiring the Trustee to hold the remaining property for the husband’s benefit and to pay him “the entire net income” in quarterly installments is mandatory. So is the requirement that the Trustee pay him, out of the principal, $5,000 at age 35, and one-third of the principal at age 40. At age 45 we find the only discretionary provision: the Trustee may distribute or retain the remaining principal; but if it chooses to retain, it has no choice but to continue to distribute to him or for his benefit the entire net income.

Thus the trust as it now stands is only to a very limited extent a discretionary trust as far as the husband is concerned, but is in its essentials an ordinary spendthrift trust, subject to invasion by wife and children under the majority rule. The basis for denying the right of invasion in a discretionary trust is that “if the beneficiary himself cannot compel the Trustee to pay over any part of the trust fund, his assignee and his creditors are in no better position.” (Scott, Sec. 155, p. 1084.) But the husband, upon Irma’s death, undeniably can compel the Trustee to pay him the entire net income of the remaining assets, and $5,000 from principal when 35, one-third of the principal at 40, and either the rest of the principal or its income at 45. He has a vested right to reach the trust fund. So would his creditors but for the restraint on alienation.

But, the wife and children “are not ‘creditors’ of the beneficiary, and the liability of the beneficiary to support them is not a debt. ... At any rate, there is no difficulty in their enforcing their claims for support against the trust estate if the settlor did not show an intention to exclude them.” (Scott, Sec. 157, 1, p. 1109-10.) In this respect they stand in the beneficiary’s shoes. They are in pari statu with him. His rights are their rights. If he should attempt to assert his rights it would not invoke the forfeiture clause. Netither would it if his wife and children attempted to assert his rights, which are also theirs. This obtains by virtue of the nature of the duty to support and the legal and social consequences of failure to support; and it inheres in the majority rule allowing invasion by dependents despite attempted restraints.

Ohio’s position on this issue is not clear. In 40 O. Jur. 513 we read:

“It seems to be quite uniformly held that the interest of the cestui que trust in both spendthrift trusts and trusts for support can be reached by the wife and dependent children of the beneficiary. It has been held that a wife or dependent children can even compel the trustee in a discretionary trust to pay a part of the income to them.”

This was written in 1935, and the text is supported by no Ohio citations.

In opposition to this view stands the Common Pleas Court of Franklin County in a very recent case, McWilliams v. McWilliams, CP 74 Abs 535, 140 N. E. 2d, 80. This was submitted in 1955 and it is doubtful if the learned judge could have had access to the 1956 Edition of Scott on Trusts, with its comprehensive compilation of authorities showing the trend which has given the affirmative view almost a two-to-one majority.

The McWilliams case holds:

“. . . we do not believe it is against public policy for the donor or testator to limit the gift ... to designated beneficiaries and exclude others, even members of their own families, from any participation in the trust funds.”

(There is nothing to indicate any express exclusion of wife or children, the trusts containing only the common “spendthrift clauses.”)

Yet it is public policy that is the basis of the rule in favor of the dependents, even regardless of the donor’s intentions:

“Even though it is clear that the settlor intended to exclude the beneficiary’s wife and children from enforcing their claims for support against his interest in the trust, it has been held in some cases that they are not thereby precluded from reaching the trust estate. This result has been reached on the ground that it is against public policy to permit the beneficiary to have the enjoyment of the income from the trust while he refuses to support his dependents whom it is his duty to support. The claim of a wife and dependent children to support is based upon the clearest grounds of public policy. They aré in quite a different position from ordinary creditors who have voluntarily extended credit. It would be shocking indeed to permit a husband to receive and enjoy the whole of the income from a large trust fund and to make no provision for his needy dependents.” (Scott on Trusts, 2d Ed. 1956, p. 1110.)

Stronger language is used in In Re Moorehead’s Estate, 289 Pa. 542; 137 A 803; 52 A. L. R. 1251:

“Public policy is not so vague and wavering a matter as not to be rightly invoked in a case of this character, where the degenerating tendencies of marital relations of the present day are so faithfully exemplified by one who comes into court and demands judicial condonation of his violations of law. In every civilized country is recognized the obligation, sacred as well as lawful, of a husband to protect and provide for his family, and to sustain the claim of the husband in the case at bar would be to invest him with a right to be both a faithless husband and a vicious citizen. This case reaches beyond the concern of the immediate parties to it.”

The Supreme court of Wisconsin agreed, and in Dillon v. Dillon, 244 Wis. 122; 11 N. W. 2d 628, it brought Wisconsin into line with the majority rule, quoting the Moorehead opinion on public policy at considerable length.

Undoubtedly there is a public policy behind an owner’s right to dispose of his property as he pleases. But this right has not been without limitations; witness the statutes of mortmain, the rules against perpetuities and fraudulent conveyances.

At the same time it is public policy that dictates that a family has a right to be supported and that the father must support it. And the law provides sanctions for his failure to do so. If he wilfully disobeys a valid order to support his wife and children he may be fined and jailed for contempt. If he disposes of his assets by conveyance or dissipation so that not enough remains for proper support, he may be fined and imprisoned for contributing to the neglect or dependency of his minor children. If he has the means (including earning capacity) and wilfully, or even carelessly fails to support his children, he is subject to fine and imprisonment, possibly as a felony. (And a rule designed to help him avoid such an eventuality is more for his real benefit than one to help him evade his obligation!)

Public policy requires the mother who has legal custody of the children to supplement the father’s support payments, and to give them proper nurture, care and supervision. Failing this the law may deprive her of custody and subject her to the same punishments just noted for the children’s father.

That is how strong the public policy is that demands the protection of children and families. There is nothing to compare with it sanctioning the policy of permitting an owner to dispose of his property as he wishes — indeed we are aware of no sanction whatsoever to enforce this right. It must be obvious that in any clash between a policy protecting children and families and one favoring property or any other interest, the former must prevail. And the logic is as cogent, the policy as compelling, whether applied to an ordinary spendthrift trust, a support trust, a discretionary trust, or any other kind of trust.

To deny dependents the right to invade and to adopt a rule that would remit them to their right to reach funds only after they are paid to the beneficiary would serve no useful purpose. It would more likely serve to defeat the dependents altogether. For one thing, while a trustee, especially a corporate trustee, may be presumed to remain stationary, the opposite may be expected of many beneficiaries. In the McWilliams case (supra) the wife from California sued in Ohio in her vain attempt to reach funds due the beneficiary in Mexico. Also, the fact that a trustor saw fit to create a spendthrift trust and to invest the trustee with more or less discretion speaks volumes as to trustor’s fear his beneficiary would ignore legal obligations and dissipate funds as fast as received.

In our view it would be clearly against public policy to deny.dependents the right of invasion, thereby permitting donor in effect to conspire and connive with beneficiary to deprive his own family of its lawful right. On the contrary, it seems clear there is an affirmative public policy authorizing invasion for the benefit of wife and children. While this doctrine appears never to have been enounced in any reported Ohio case, frankly we are writing at this length in a nisi prius case in the hope Ohio will eventually line up on the side that looks right ethically, socially and legally.

But if it should be held otherwise by a higher authority and the attempt of the wife and children should precipitate a forfeiture, let us see just what results. By the terms of Art. IV, if the husband should for any reason cease to enjoy the whole interest intended for him and part of it should vest in someone else, the trust as to him would immediately terminate, but the Trustee would continue to hold his payments and distribute them during his lifetime at its discretion, and it “may pay” him for his “support” or to his “wife, child or children” such sums as its discretion dictates.

This sounds to us pretty much like saying, “the trust is dead; long live the trust.” In the resulting trust the Trustee, beneficiaries and corpus remain unchanged; there is no shifting of legal title or divesting of beneficial interest. The only difference is that instead of paying the husband specific amounts at specified times, the Trustee will now make payments as it deems advisable. There is no restriction as to income or principal.

But, payments the Trustee must make! In that respect it has no choice. The word “may” emphasized above is clearly directive rather than permissive. The Donor never intended that the Trustee could keep to itself all the assets, or wait until John Jr. dies to distribute the residue. It is clear that it was his intention to provide for the support of his son and his son’s family. Else why did he mention wife and children and authorize the Trustee to make payments to them, thereby making them direct beneficiaries? And since he manifested his intention that the Trustee look after them during John Jr.’s life, there is no reason to believe that he intended the metamorphosis of the original spendthrift trust into a discretionary support trust to revoke Sec. 7 (paras, a), b) and c) of Art. Ill, making provision for the husband’s wife and children upon his death.

The Trustee rightly argues that since in a discretionary trust the beneficiary himself cannot compel the Trustee to pay over any part of the trust fund, his assignee and his creditors are in no better position. But even as to ordinary creditors, which wife and children are not, “the result is different, however, where the trust is not purely discretionary. The trust is purely discretionary where the trustee may withhold the income and principal altogether from the beneficiary, but not where he has discretion only as to the time or method of making payments to the beneficiary or applying the trust fund for his benefit. ... If the trustee has not discretion to withhold the income and principal altogether from the beneficiary ... his creditors can reach it, unless there was a valid restraint upon alienation, or unless the trustee was to pay or apply so much of the income or principal as should be necessary for the support of the beneficiary.” (Scott, Sec. 155, pp. 1084-5.)

Certainly the discretion bestowed upon the Trustee cannot possibly relieve it of its obvious legal as well as moral duty to support both the husband and his wife and children. Any undue withholding of payments from any of them would clearly be an abuse of discretion. (See Scott, Sec. 155, p. 1084, quoting In re Smith, Ch. 915, 918; 167 L. T. 327, 498.)

We therefore FIND and HOLD that the majority rule as quoted from the Restatement of Trusts applies here and the husband’s interest may and should be subjected to the claims of his divorcing wife and their two children for alimony and child-support; that these claims should constitute a lien upon the trust res, effective upon the event fixed in Article III, paragraph (4) of the Trust Agreement, to wit, upon the death of Donor’s said wife, Irma; that the wife, having already supported herself and children with no help from the husband for nearly two years, having obligated herself to help pay the husband’s premarital obligations, and requiring additional sums to enable her to live and raise the children in a manner befitting their station in life, is entitled to awards of substantial alimony and child-support, retroactively and in futuro, and an equitable division of the husband’s property, without invoking any forfeiture of his interest.

However, we believe it would be unwise to attempt to fix the amounts at this time. The husband’s interest may not come into enjoyment for years, and conditions may be completely altered at that time. The principal may be intact or partly or largely — possibly wholly — consumed (but probably not wholly, in view of Donor’s admonition to Trustee, which indicates that payments for any reason other than Irma’s welfare, e. g„ in order to defeat a remainderman, would be an abuse of the discretion granted.) At present it is impossible to estimate the value of the husband’s interest, the wife’s needs or the husband’s ability to pay. He may be rehabilitated and restored to his former considerable earning capacity, his condition may have worsened, he may be hospitalized or again adjudged incompetent. The wife’s situation may have altered substantially, her needs may have increased or diminished. She, too, may have remarried, in which event she would be entitled to division of property but not to alimony from that time forward. Much would depend upon the age, health and schooling of the children. The court cannot possibly make an intelligent or just order now to become operative at some undetermined time in the future.

This cause will therefore be continued for further hearing as soon as possible after the death of Donor’s wife, Irma, at which hearing evidence will be received as to the value of the principal, probable income, needs of wife and children, husband’s condition and earning capacity, and other matters such as will enable the court to make proper awards of alimony and child-support and an equitable division of the husband’s property.

A journal entry in accordance with these findings and holdings may be prepared, allowing exceptions to all parties.


author: By PHILLIPS, PJ.

text:
    STATE, Plaintiff-Appellee, v. TITAK, Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 731.
    Decided December 12, 1955.

      James L. MacDonald, Pros. Atty., G. W. Brokaw, Asst. Pros. Atty., Lisbon, for plaintiff-appellee.
    George A. Aronson, East Liverpool, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Defendant was arrested between the hours of 6:30 and 7:00 o’clock P. M. on Saturday, July 31, 1954, while operating an automobile on U. S. Route 30 in St. Clair Township, Columbiana County, Ohio, and taken to the police station at East Liverpool, Ohio, where he was subjected, with his permission, to an intoxi-meter test, which indicated he was to some degree under the influence of intoxicating liquor. After that result the arresting officer signed an affidavit, to which he did not swear until Monday morning, August second, in the Municipal Court of East Liverpool, charging defendant in that court with driving an automobile upon U. S. Route 30 in Columbiana County, Ohio, while under the influence of intoxicating liquor in violation of §4511.19 R. C.

Defendant challenged the jurisdiction of the Municipal court of East Liverpool when he appeared there for trial, and the judge thereof placed defendant under recognizance to the Grand Jury of Columbiana County.

A jury in the court of common pleas found him guilty of such offense as charged in an indictment returned by the grand jury of Columbiana County, and from the final judgment and sentence of the judge of that court defendant appealed to this court on questions of law charging by assignment of errors:—

“1. That the court was without jurisdiction to hear and determine the cause.
“2. The allegations of the affidavit filed in this cause were not sufficient to constitute a crime or offense under the statutes of the state of Ohio or the Constitution of the United States and the State .of Ohio.
“3. Error by the Municipal Court of East Liverpool, Ohio.
“4. That the court erred in admitting evidence offered by the State of Ohio to which admission defendant duly objected and excepted.
“5. That the proceedings as conducted were violative of the Fifth Amendment of the Constitution of the United States.
“6. That the court erred in his general charge after argument.
“7. That the judgment of the court is not sustained by sufficient evidence and is against the manifest weight of the evidence.
“8. That the judgment of the court is contrary to law.”

The affidavit upon which the charge was based reads as follows:—

“Before me, the undersigned, Clerk of said Court, came Ptl. M. R. Darrah who, being duly sworn according to law, deposeth and saith that on or about the 31st day of July, 1954, John G. Titak did unlawfully operate a certain motor vehicle over and upon highway No. 30 in the Twp. of St. Clair and County of Columbiana. To wit did operate said vehicle while under the influence of alcohol. All in violation of and contrary to §4511.19 R. C.”

The indictment returned by the Grand Jury of Columbiana County charges defendant with the following crime:—

“The State of Ohio
“Columbiana County, SS.
“Court of Common Pleas Case No. 6647
“Of the Term January in the year of our Lord, one thousand nine hundred and fifty-five.
“The Jurors of the Grand Jury of said County, on their oaths, in the name and by the authority of the State of Ohio, do find and present that John G. Titak late of said County, on or about the 31st day of July in the year of our Lord one thousand nine hundred and fifty-four at the County of Columbiana aforesaid, did unlawfully operate a motor vehicle upon a highway, to-wit U. S. Route No. 30 in St. Clair Township, he, the said John G. Titak, being then and there under the influence of intoxicating liquor. Contrary to §4511.19 R. C., and against the peace and dignity of the State of Ohio.”

Defendant claims that §4511.19 R. C., is unconstitutional as not being specific, and that the affidavit drawn in pursuance thereto did not charge a crime under the Constitution of Ohio, and accordingly the Municipal Court and the Court of Common Pleas of Columbiana County lacked jurisdiction to hear and determine the charge against defendant.

It is settled law in Ohio that “the filing of the affidavit is prerequisite to the issuing of a warrant, and without the filing of a proper affidavit no jurisdiction is acquired.” State v. Lanswer, 111 Oh St 23 at 26.

Further, it is claimed that the affidavit is faulty and insufficient because it charges that defendant operated the motor vehicle while under the influence of intoxicating liquor, while §4511.19 R. C., “under which this defendant was charged and tried, attempts to make it an offense to operate an automobile in this state while ‘under the influence of intoxicating liquor’ that “it can never be an offense to operate a motor vehicle while under the influence of intoxicating liquor. Under the influence of intoxicating liquor would apply to any person who had even a thimbleful of intoxicating liquor. The term ‘influence of intoxicating liquor’ and ‘intoxication’ are not synonymous because if they were the Legislature would not have used the two separate phrases ‘state of intoxication,’ or ‘under the influence of intoxicating liquor. * * * The term ‘under the influence of intoxicating liquor’ is so uncertain that it is impossible for the defendant to properly defend the action nor can he tell from the affidavit what he is charged with. * * * The statute does not fix the degree of influence which the intoxicating liquor has on the driver. * * * This statute does not define a crime with sufficient certainty and therefore the proceedings being brought under this section are void and of no effect.”

In a word defendant contends that to find defendant guilty as charged the state must prove that he was intoxicated rather than under the influence of intoxicating liquor for “under the influence of intoxicating liquor would apply to any person who had even a thimble full of intoxicating liquor.”

We find no merit in this contention.

Appellee contends:—

“In law, the words ‘under the influence’ mean that the accused must have consumed some intoxicating beverage in such quantity that its effect on him was to adversely affect his action, reactions, conduct, movements, or mental processes in such manner as to deprive him of that clearness of intellect and control of himself which he would otherwise have possessed under the circumstances then existing. See State v. Steel, 95 Oh Ap 107; 52 O. O. 488.”

This presented a question for the determination of the jury.

We cannot hold that §4511.19 R. C., is unconstitutional “because it does not define with nicety and precision just what constitutes ‘under the influence of intoxicating liquor’ ”. As stated by the state’s counsel, to which we subscribe:—

“Apparently, the appellant feels that he has a constitutional right to be informed by the legislature just how much intoxicating liquor he can drink before he runs the risk of being arrested and prosecuted for operating a motor vehicle under the influence of intoxicating liquor,”

We find no error prejudicial to the defendant in any of the respects charged in assigned grounds of error one nor two.

Defendant was arrested in St. Clair Township, where there were two duly elected and qualified Justices of the Peace, but was taken to the police station at East Liverpool in St. Clair Township and charged in the Municipal Court of that city as stated.

Defendant contends “that the municipal court was under a mandatory duty to make a final disposition of the case and was without any discretion after said plea was made by the defendant to do other than to determine the truth of the charge made against the defendant.”

This the judge of the Municipal Court of East Liverpool refused to do or to state whether he was hearing the case as on preliminary hearing or as a final hearing, as shown by the following quoted from the record:—

“Mr. Cooper: By way of inquiry, does the court in taking jurisdiction under the Justice of the Peace statute, intend to finally determine the case today or just to hearing preliminary evidence?
“The Court: The position of the matter right now is that I don’t know whether the defendant is guilty or not guilty. He has entered a plea of not guilty. The next thing is to judge whether he is guilty or not guilty. I don’t know whether it is necessary for me to state in advance what position I will take.”

The record discloses the following proceedings with reference to that question:—

“The Court: You have no intention of offering any defense?
“Mr. Aronson: No, sir. The solicitor has requested that the defendant be bound over to the Grand Jury and it is my understanding that that was his particular request of the Court — that he had produced enough evidence to bind him over to the Grand Jury, and it is on that point that I am raising my question again. If this is a preliminary hearing, I have no alternative. I do not think it would be good practice to put the defendant on in a preliminary hearing, and for that reason I am not putting him on.
“The Court: That might be true in some cases.
“Mr. Aronson: I will put him on with this understanding — that this is not considered a preliminary hearing.
“By the Court: It is entirely within the power of the defendant to make it a final hearing or a preliminary hearing If the defendant doesn’t make any defense, of course it will be a preliminary hearing. If the defendant does not want to submit himself to the Court for a final hearing, this will be considered a preliminary hearing. I am going to bind this defendant over to the Grand Jury under bond of $500.00. That is all.”

Secs. 1901.02, 1901.20 and 2931.02 R. C. settle this question.

If defendant believed that the judge of the Municipal Court of East Liverpool should have heard the charges against him and the trial judge refused to do so he could have brought an action in mandamus to have compelled him to do so.

See State v. Wheelock, 64 Abs 129.

“Mandamus lies to compel municipal judge of city of Portsmouth to finally hear and dispose of criminal charge of violating §13049 GC. providing penalty of fine and imprisonment, in view of §13423-1 GC (109 Ohio Laws, 62) and New Criminal Code (§§13422-1 to 13460-1 GC [113 Ohio Laws, 123-215]), notwithstanding municipal court created by 108 Ohio Laws, 462 et seq. (Sec. 1579-459 et seq., GC), has power of justice of peace to bind over to grand jury those charged with any offense; New Criminal Code, §§13433-10 and 13433-11 GC, being applicable only to preliminary examinations of persons charged with commission of both felonies and misdemeanors.” Sprague, Judge, v. The State, ex rel. Staples, 34 Oh Ap 354.

Next defendant contends that the judge of the court of common pleas erred to his prejudice in admitting over his objection the state’s evidence of an intoxi-meter test, made by a non-expert witness, showing influence of intoxicating liquor when arrested because “defendant, was entitled to be advised that anything that he did or said could be used against him, but nothing of the sort was done.”

Defendant contends that the following quotation from Booker v. Cincinnati, 5 O. O. 433, is applicable to the instant case:—

“Under the privilege against self-incrimination guaranteed by Section 10, Article I, Ohio Constitution, a defendant charged with crime cannot be compelled to give evidence against himself, nor can the state compel him to submit to a medical or surgical examination the result of which may tend to convict him of a public offense.”

Arguing this contention defendant claims that:—

“The defendant is entitled to every protection the law gives him and especially the right of not incriminating himself. In order that these tests be admissible in evidence it is a necessary prerequisite that he consent to the making of them. It is obvious that if the defendant is in such a mental state that he cannot give consent, then the test is equal to the taking by force or duress and such tests are not admissible in evidence. In the alternative, if the defendant was not drunk then he should have been admonished and warned that whatever he might do or say could be used in evidence against him and in this case the defendant was not so warned by the patrolman and/or if the defendant was ‘drunk’ as alleged by the State, then any data obtained from tests to which the defendant submitted were taken without his consent and are therefore inadmissible in evidence.”

The record discloses the following procedure in which the trial judge interrogated the witness:—

“Q. One question Mr. Duke. Suppose the individual was driving an automobile at 6:00 o’clock in the evening, he was taken into custody at that time, he consumed no more alcohol between 6:00 o’clock and 7:00 o’clock when the test was given, the test would show the quantity of alcohol in his blood stream at 7:00 o’clock, is that right?
“A. That’s right.
“Mr. Aronson: I object to this line of questioning.
“The Court: Yes, you may. What is the ground.
“Mr. Aronson: I feel the question by the court is more or less taking-over with regard to what should be done by the prosecution.
“The Court: You may have your objection.
“Q. Assuming the conditions I have given you, had the test been given at 6:00 o’clock, would the test show a higher or lower percentage of alcohol in the blood stream?
“A. I would say it would be higher.
“Q. And is that because a person ordinarily eliminates alcohol from his system?
“A. Yes, sir.
“Q. As time passes on?
“A. Yes, sir.
“The Court: That is all.
“Mr. Aronson: Can I have an objection to both of those questions Mrs. Rogers.”

Counsel complains bitterly about such interrogation by the trial judge, among other things, because the trial judge led the witness which he would not have permitted counsel to do.

With reference to defendant’s contention that “the proceedings as conducted were violative of the Fifth Amendment to the Constitution of the United States, because he was not informed when he submitted to the intoxi-meter test that the result thereof might be used against him on trial it is remembered that defendant submitted to the intoxi-meter test voluntarily.

See City of Columbus v. Glenn, 60 Abs 449, where it is said:—

“It is not prejudicial error or an invasion of a constitutional right of a defendant that, without being warned that it might be used against him, he gives a specimen of his urine to a police officer, which was analyzed and admitted in evidence.”

We find no merit to the error assigned.

In his general charge to the jury the trial judge said:—

“In general it may be said that a person who has a concentration of alcohol in his blood stream of .05 of 1% or less is not under the influence of intoxicating liquor; that a person who has a concentration between .05 and .15 of 1% of alcohol in his blood stream may or may not be under the influence of intoxicating liquor, depending on other signs and symptoms of intoxication or lack of intoxication which may be observed at the time; and that a person who has a concentration of .15 of 1% or more of alcohol in his blood stream is under the influence of intoxicating liquor to a degree making it unsafe for him to operate a motor vehicle.”

Defendant argues that the charge as quoted was prejudicially erroneous because “it is apparent that the court took unto himself the duties of the legislature. It was the duty of the legislature to define the exent of ‘under the influence of intoxicating liquor,’ and it could not delegate this duty to the court.”

Further defendant charges that in his general charge to the jury the trial judge failed, and thereby erred to his prejudice, to “state the meaning of presumption of innocence” as required by §2945.04 R. C., where it is said:—

“A defendant in a criminal action is presumed to be innocent until he is proved guilty of the crime charged, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be acquitted. This presumption of innocence places upon the state the burden of proving him guilty beyond reasonable doubt.
“Reasonable doubt is defined as follows: ‘It is not a mere possible doubt, because everything relating to human affairs or depending upon moral evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.’
“In charging a jury the trial court shall state the meaning of presumption of innocence, and read said definition of reasonable doubt.”

We find no error prejudicial to defendant in this respect.

Read in conjunction with the charge in its entirety we do not so construe the quoted portion of the charge of the trial judge.

Now with reference to defendant’s contention that the trial judge erred prejudicially to him in not reading the definition of reasonable doubt as stated in §2945.04 R. C., verbatim, it is held in Beck v. State, 129 Oh St 582, that failure to read the definition of reasonable doubt as set forth in this section is not reversible error where the court charges the jury on reasonable doubt substantially in accordance with such section, which we believe the trial judge did.

Finally it is urged that:—

“To summarize, the court of common pleas in his charge stated to the jury that it was a scientific fact that if the defendant had .15 of 1% of alcohol in his blood stream, he was under the influence of intoxicating liquor. It is not a scientific fact rather in the abstract it is argued among doctors and chemists that much depends upon the individual who has used the alcohol and that there are various other chemicals in the body and diseases that have similar effects as alcohol. That the court further erred in his instruction to the jury in that he failed to instruct them to consider the fact that the test was not better or worse than the individual who gave the test; that the results of the analysis, should be given such credulance in proportion to the experience and background of the individual analyzing the chemicals. It is urged that the court did both assume facts and did determine facts which were in dispute in the case and the determination of which should have been the duty of the jury and that such acts by the court of common pleas did prejudice the defendant.”

With reference to the charge on the intoxi-meter test it is noted that the trial judge prefaced this portion of the charge “in general it may be said 4 *

The court did not charge the jury that it was a scientific fact that anyone with a concentration of fifteen hundredths of one percent of alcohol in the blood stream is intoxicated or even under the influence. The court did state that in general it may be said that a person who has a concentration of fifteen hundredths of one percent or more of alcohol in his blood stream is under the influence of intoxicating liquor.

The trial judge correctly permitted the results of this test to go to the jury as evidence but specifically directed in his charge that it was for the jury to determine from the evidence whether the defendant was or was not under the influence of intoxicating liquor at the time of operating the motor vehicle. Nothing in the general charge compelled or directed the jury to do anything but consider and weigh this evidence along with all the rest of the evidence in the case. The jury could have rejected the evidence concerning the intoxi-meter test entirely.

The trial judge in his charge to the jury said “you have heard testimony as to such a method — the ‘intoxi-meter test’ — but the weight and credit you give to such method of measuring the amount of alcohol in defendant’s blood is entirely for your determination.”

There is no merit in this contention.

Now it is claimed by defendant that the intoxi-meter test was made by a member of the police department of the city of East Liverpool, who was not competent to make the test, and by reason thereof “the judgment of the court is not sustained by sufficient evidence and is against the manifest weight of the evidence” and contrary to law.

The tester’s own evidence with reference to his qualifications discloses:—

“Q. I am saying did you receive some instructions?
“A. Yes, I was shown how to use it.
“Q. Who instructed you if you recall?
“A. I don’t recall which one of the patrolmen it was.
“Q. Beg pardon.
“A. I don’t recall which one of the patrolmen it was that explained it to me.
“Q. How many tests have you given, that is approximately?
“A. I would say somewhere between 8 and 12, I couldn’t give you the exact amount without checking with the chemist.”

It is conceded that the test is an extremely delicate one, and was conducted in public, and that the results thereof were not safeguarded by lock and key, and evidence that the tests were not made by experts as shown by the testimony of the tester:—

“Q. If it changes within 39 seconds what does that indicate according to the instructions?
“A. According to the instructions if that color is disseminated in the 39 seconds, the man is undoubtedly intoxicated. When this chemical clears, which it might take anywhere from 16 seconds up to 80-90 depending upon the amount of alcohol in the body, you replace the cork in it and remove the red top from the other chemical tube and allow the remaining air in the balloon of not less than two minutes’ times to pass through this one tube and up through the other one and your alcohol collects into the chemicals in the tube and then it is resealed and your balloon and so forth is removed, your top replaced on it in a tight condition to prevent any escape of your alcohol or air from your tubes. It is replaced in your container, sealed and sent back to the chemist for his analysis.”

Finally it is urged by defendant:—

“* * * that a test that is as delicate as the state claims should have been made by competent personnel with full experience or under the supervision of some one with experience and that the contents of the test should have been kept under lock and key and analyzed by a specialist and that where the analysis of said contents varies approximately 25% on two tests there is an indication that the tester is incompetent or inaccurate or that some new chemical or influence has been inserted into the test.
“* * That a test is so delicately balanced and so crudely analyzed; that is kept so haphazardly in the Police Station that anyone could view the test and that the chemicals are left unguarded in an unlocked container can have little probative value. * *

There is evidence of the guilt of defendant other than the intoximeter test sufficient in our opinion to support the verdict of the jury and judgment of the trial court entered thereon, and we cannot reverse that judgment and verdict on the ground that they are against the manifest weight of the evidence or contrary to law.

Judgment affirmed.

GRIFFITH, J, concurs.

NICHOLS, J, concurs in judgment.


author: By GESSAMAN, J.

text:
    WEINLEIN, Plaintiff, v. BEDFORD et, Defendants.
    Common Pleas Court, Franklin County.
    No. 185831.
    Decided January 21, 1955.
    Luther L. Liggett, Marysville, for plaintiff.
    Robert P. Barnhart, Howard F. Wehr, William C. Irish, Columbus, for defendants.
   OPINION

By GESSAMAN, J.

The evidence in this case was taken before the Honorable William C. Bryant, a former judge of this court on October 4, 1954. By agreement of counsel the case is now submitted to this court upon the transcript of the testimony and the briefs of counsel.

The evidence discloses that Alice Walton was the owner of property commonly referred to as 453 Nashoba Avenue, Columbus. Ohio; that on March 25, 1943, she executed a deed conveying that property to Norman Bedford, Sr., her son; that on the same date Norman Bedford, Sr., executed a deed to the property conveying it to the plaintiff, Marilyn Bedford Weinlein and Ellen Morgan and Norman Bedford, Jr. retaining unto himself, the Grantor, a life estate in the premises. Both of these deeds were filed for record on March 26, 1943, the deed from Norman Bedford, Sr., bearing the notation “mailed to Alice Walton, 453 Nashoba Avenue.” The evidence further discloses that shortly after the death of Alice Walton, on November 14, 1951, both of these deeds were found in a tin box at her residence.

The evidence further discloses that on April 29, 1948, Ellen Morgan and Norman Bedford, Jr., reconveyed their interest in the property to Alice Walton and that on the same date the plaintiff executed a deed which purported to reconvey to Alice Walton her share of the property. The evidence further discloses that on this date the plaintiff was a minor and that she did not become of age until July 2, 1949. The plaintiff testified that she did not know what she was signing but that she signed the document because it had been sent to her by Alice Walton, her grandmother, with a request that she sign it and return it.

As we have already stated, Alice Walton died on November 14, 1951. By her will she devised whatever interest she had in the property to her son, Norman Bedford, Sr., and Helen Bedford, his wife. Norman Bedford, Sr., died intestate on August 6, 1952, and his share then descended to Helen Bedford, his wife and Norman Bedford, Jr., his son.

Counsel for the plaintiff contends that Marilyn Bedford Weinlein, the plaintiff, received an undivided one-third interest in the property by virtue of the deed of March 25,1943, and that because of the fact that on April 29, 1948, she was a minor, the purported deed from her to Alice Walton, executed upon that date, was and is a nullity and therefore the plaintiff is still the owner of an undivided one-third interest in the property in question. She therefore prays for a partition of the property in this action.

Counsel for the defendants do not appear to claim that the deed from the plaintiff to Alice Walton on April 29, 1948, carries any force and effect, but they do contend that the plaintiff confirmed her deed executed on that date by her subsequent actions. They contend further that the purported deed from Norman Bedford, Sr., to the plaintiff and to others on November 25, 1943, is a nullity because of the fact that there was no delivery. The questions presented to the court are, therefore (1) Did the deed executed by Norman Bedford, Sr., to Marilyn Bedford Weinlein, et al., constitute a valid conveyance of the property, and (2) Did the plaintiff confirm her deed to Alice Walton dated April 29, 1948, by subsequent actions.

There is no dispute in the evidence but that both deeds dated March 25, 1943, were left by someone with the Recorder of this county for recording. We therefore feel that we must apply the rule which appears to have been in existence in this state for many years, to the effect that when a man executes and acknowledges a deed and delivers it to the Recorder with unqualified instructions to record it, the reasonable presumption is, in the absence of any rebutting circumstances, that he means thereby to transfer his title. This rule was laid down by the Supreme Court many years ago in the case of Mitchell, et al. v. Ryan, 3 Oh St 377, and we find the following statement at pages 382 and 383 of the opinion:

“But while it is thus apparent that the mere act of delivery to a stranger is insufficient, it is equally clear that there is no precise form of words necessary to declare the intent. Anything that shows that the delivery is for the use of the grantee is enough. For the real question is, does the grantor by his act mean to part with his title? and whatever satisfactorily manifests this design is as good as an explicit declaration. Now it does seem to us that when a man executes and acknowledges a deed and delivers it to the recorder, with unqualified instructions to record it, as was done in the present case, the reasonable presumption, in the absence of any rebutting circumstance, is that he means thereby to transfer his title. And this presumption is powerfully strengthened when, as in the case before us, the grantee is a minor child of the grantor, and is at a great distance from him, so that the deed can not be delivered to her in person, and when, too, the circumstances tend to show that it is a gift, and a reasonable one, for aught that appears, for the grantor to make.”

As the Court pointed out, this is a presumption that may be rebutted but the proof upon rebuttal must be clear. To this effect we quote again from the Ryan case at page 386 of the opinion:

“And here I would remark, that very clear proof ought to be made, to warrant a court in holding that a man who has executed and acknowledged a deed, and caused it to be recorded, did not mean thereby to part with his title. If such deeds could be overthrown by slight testimony, a door would be opened to the grossest fraud. The testimony should, therefore, do more than make a doubtful case. It should establish clearly, that the delivery for record was not for the use of the grantee.”

We refer also to page 387 and 388 of the opinion:

“But where the grant is a pure, unqualified gift, I think the true rule is that the presumption of acceptance can be rebutted only by proof of dissent; and it matters not that the grantee never knew of the conveyance, for as his assent is presumed from its beneficial character, the presumption can be overthrown only by proof that he did know of and rejected it. If this is not so, how can a deed be made to an infant of such tender years as to be incapable of assent? Is it the law that if a father make a deed or gift to his infant child, and deliver it to the recorder to be recorded for the use of the child, and to vest the estate in it, the deed is of no effect until the child grow to years of intelligence and give its consent? May the estate, in the meantime, be taken for the subsequently contracted debts of the father, or will the statute of limitations begin to run in favor of a trespasser upon the idea that the title remains in the adult? Or will the conveyance entirely fail, if either grantor or grantee die before the latter assent? I do not so understand the law. In such a case, the acceptance of the grantee is a presumption of law arising from the beneficial nature of the grant, and not a mere presumption of an actual acceptance. And for the same reason that the law makes the presumption, it does not allow it to be disproved by anything short of actual dissent.”

The question is, therefore, as to whether or not the defendants have overcome by clear proof the presumption of delivery which resulted from the fact that the deeds were delivered to the Recorder of this county with unqualified instructions to record them.

Counsel for the defendants argue that since the deeds were not delivered to the grantees but rather were found in the tin box in Mrs. Walton’s home after her death, there was no delivery of the deed and therefore no transfer of title from Norman Bedford, Sr., to the plaintiff and the two other grantees. Upon this point we call attention to the fact that the deed was not found in the possession of Norman Bedford, Sr., but rather in the possession of Alice Walton and, therefore, there is no evidence in the record to the effect that Norman Bedford, Sr., retained any control over the deed executed by him, and even though we should attach any significance to the fact that the deed was found in the tin box belonging to Alice Walton, we again refer to the Ryan case and specifically to the language of the Supreme Court at page 383 of the opinion:

“Much stress has sometimes been laid upon the fact of the grantor’s possession of a deed after an alleged delivery of it; and it has been said that such subsequent possession is a very pregnant circumstance to show that the supposed delivery was not absolute. That this may often be the case is undeniable: but where the deed has been recorded, such subsequent possession is a very pregnant circumstance to show that the supposed delivery was not absolute. That this may often be the case is undeniable; but where the deed has been recorded, such subsequent possession is evidently entitled to much less consideration than where it has not.”

There is further evidence in the record to the effect that both Alice Walton and Norman Bedford, Sr., intended by their deeds to transfer title. When the plaintiff was on the stand and was being cross-examined concerning the execution of her deed of April 29, 1948, she testified that “she (her grandmother) sent a note and said ‘Will you please sign the paper and send it back to me’ and since she was always good to me, I did.” Since Alice Walton, some five years after she had executed her deed to her son, Norman Bedford, Sr., requested the plaintiff to reconvey her interest in the property, the logical conclusion seems to be that both Alice Walton and Norman Bedford, Sr., intended by their acts of March 25, 1943, to transfer title to their respective grantees. Counsel for the defendants lay much emphasis upon the case of Smith v. Ranck, et al 37 O. O. 235, decided by the Common Pleas Court of Trumbull County, and affirmed by the Court of Appeals. In that case the plaintiff was seeking to set aside a deed which she had executed to her grandniece under the fear that her decease might be imminent and with the desire to make provision for the transfer at her death of the property in question. The deed was recorded in the office of the Recorder of Trumbull County. The opinion discloses that the plaintiff retained possession of the deed and that “she intended to retain control of the property during her lifetime and had no intention whatever of transferring the property until her decease to the grantee.” The question involved in that case is stated by the court as follows at page 236 of the opinion:

“The question is whether a deed, possession of which is retained by the grantor with the intention of transferring title upon her death, operates to transfer title immediately by reason of its delivery for transfer and record, regardless of the grantor’s intention.”

As observed by the court at page 238 of the opinion “The transfer of property on death in this manner is not favored by law, * * Judgment accordingly was rendered setting aside and cancelling the deed. Obviously this case is distinguishable from the case at bar upon the facts involved and the question involved. We have also examined the case of Knieble v. Wade, et al., 161 Oh St 294, to which counsel for the defendants have referred. The facts in that case are not comparable to the facts in the case at bar nor does that case overrule or modify the rule laid down by the Supreme Court in the Ryan case, supra.

After a careful consideration of the evidence in this case, it is our opinion that the presumption which arose from the recording of the two deeds of March 25, 1943, has not been overcome and that therefore title passed to the plaintiff in this case.

Counsel for the defendants urge that the plaintiff confirmed her deed to Alice Walton, dated April 29, 1948, by her acts in regard to the estate of said Alice Walton. The evidence discloses that some time after the death of her grandmother, the plaintiff did sign a paper in connection with her estate although the document which she signed is not a part of the record that has been made. It appears, however, that it was a waiver or an entry of appearance. There is certainly not enough in the record to warrant the court in concluding that by her signature she attempted to confirm her deed of April 29, 1948, and to admit that her grandmother was the owner of the property in question. To do so would obviously be stretching the inference from the signing of that document, whatever it was, beyond all reason. On the contrary, the record discloses that Norman Bedford, Sr., who had retained a life estate in the property, died on August 6, 1952, and the file shows that this case which is an action as we have said to partition the property, was filed only shortly thereafter, namely, on August 21, 1952. It is well settled that there could be no partition of this property while the life tenant was living. To this effect see Syllabus 1 of the case of Eberle v. Gaier, 89 Oh St 118. Therefore, it is clear that the plaintiff not only did not confirm her deed of April 29, 1948, but on the contrary at the earliest possible moment, disaffirmed that deed by filing this action in partition. It is our opinion, therefore, that the plaintiff has done nothing to confirm her deed to Alice Walton, dated April 29, 1948.

We have not discussed the effect of the purported deed of plaintiff, dated April 29, 1948, in view of the fact that counsel for all parties apparently agree that since the plaintiff at that time was a minor, the purported deed is of no force or effect.

It is therefore the opinion of the Court that the plaintiff is the owner of an undivided one-third interest of the property in question, that the defendant Helen Bedford is the owner of an undivided three-sixths interest and that the defendant Norman Bedford is the owner of an undivided one-sixth interest. The plaintiff is, therefore, entitled to partition as prayed for. The plaintiff prays that an account be taken of the rents that have come into the hands of defendant Helen Bedford. This defendant admits that she has collected the rents since the death of her husband, Norman Bedford, Sr., but there is no testimony as to how much has been collected. We can only find, therefore, that in view of the conclusions already reached by the court, the plaintiff is entitled to one-third of the rents which the defendant, Helen Bedford, has collected.


author: By KOVACHY, PJ.:

text:
    LYNN, Relator, v. SUPPLE, etc. et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23680.
    Decided May 3, 1956.

      Creighton E. Miller, for relator.
    Vernon Burt, for respondents, Clerk and Council of Mayfield Heights, Ohio.
    Saul Danaceau, Asst. County Pros., for Board of Elections.
   OPINION

By KOVACHY, PJ.:

This is an original action in mandamus. The relator, one of the sponsors of a referendum petition and a member of the committee designated by the signers, seeks a writ commanding the Clerk of the Council of the City of Mayfield Heights to certify said referendum petition as sufficient to Council. The cause is submitted to us on the pleadings, stipulation of facts, evidence, oral arguments and briefs.

The charter of the City of Mayfield Heights requires that a referendum petition be signed by electors equal to ten per cent of the electors voting at the last preceding November election and filed with the Clerk of Council within forty days after the final passage of the ordinance involved. The Clerk is then required to ascertain the sufficiency of the petition and report upon the same to the Council. Article VIII, Sec. 2.

Article VIII, Sec. 4, dealing with Petitions, states that “the manner of signing, the method of circulating, the form and requirements as to the affidavit, and the other requirements of the general law regulating initiative and referendum petitions, shall apply in the case in initiative, referendum and recall in this City, except as otherwise provided in this Chapter.” (Emphasis added.)

The essential facts in this action are:

1) 3,708 persons voted at the last general election.

2) 371 valid signatures are required to make a referendum petition effective.

3) 1,008 signatures were filed September 16, 1955; this was within forty days after passage by Council of the ordinance in question.

4) 517 signatures were withdrawn in writing on or before October 10, 1955.

5) The Clerk, on October 10, 1955, had not as yet taken any official action upon or in connection with the referendum petition.

6) 288 signatures are valid beyond question.

7) 25 persons on October 10, 1955 requested in writing the revocation of previous withdrawals.

8) 23 signatures have initials of given names although registered under full given names. Each, so signing, is admitted to be one and the same person registered.

9) 21 signatures of married women have their husband’s given name although registered in their own given name. Each, so signing, is admitted to be one and the same person registered.

10) 5 signatures have different first names from that registered. Each, so signing, is admitted to be one and the same person registered.

11) The surnames of two signatures are spelled differently from that registered. Each, so signing, is admitted to be one and the same person registered.

12) 5 signers failed to place precincts.

13) 11 signers placed incorrect precincts.

14) One signer placed an incorrect address and precinct, having moved from the address from which registered.

15) The City of Mayfield Heights is divided into precincts only.

From a careful analysis of these admitted facts, we unanimously come to the conclusion that the referendum petition does not contain the required number of valid signatures and that the respondent clerk, Alice Supple, was justified in not reporting the same as sufficient to the City Council.

(a) The Law of Ohio is well settled that an elector signing a petition authorized by law invoking official action has a right to withdraw his name therefrom at any time before official action has been taken thereon.

The Supreme Court in a per curiam opinion stated on page 4, in State, ex rel. McLain v. Bailey, 132 Oh St 1, 4 N. E. 2nd 141, 6 O. O. 470:

“The court held in the per curiam opinion in State, ex rel. Kahle, v. Rupert, Auditor, 99 Oh St 17, 122 N. E., 39, that an elector signing a petition invoking either official or judicial action has a right to withdraw his name before action has been taken thereon. The signers to the referendum petition, therefore, had the right to withdraw their signatures therefrom, and therefore council did not have before it a referendum petition bearing the signatures of ten per cent of the electors of the village.”

See State, ex rel. v. Rupert, Auditor, 99 Oh St 17; State, ex rel. Wehr v. Council, 138 Oh St 93, 32 N. E. 2nd 839, 20 O. O. 35.

The 517 signatures, accordingly, were properly withdrawn from the petition.

(b) Since the 23 signatures, having initials of given names instead, of. the full names as registered, the 21 signatures of married women, having their husband’s given names instead of their own given names as registered, the 5 signatures, having first names different from those registered, and the 2 signatures, having surnames spelled differently as registered, are all identifiable as the signatures of persons duly registered as electors with the Board of Elections, they must be given full validity and accepted as the signatures of electors of the City of Mayfield Heights.

It is stated by the Supreme Court of Michigan in headnotes 5 and 7 of People v. Kelly, 294 Mich. 503, 293 N. W. 865:

“5. When the surname appears in full in a petition for referendum under the Constitution, and the given name by initials only, the signature must be accepted.”
“7. Signatures of married women who sign their husband’s given name or initials with the prefix ‘Mrs.’ in petitions for referendum under the Constitution should be accepted.” See Conn. v. City Council of City of Richmond, 121 Pacific Reporter, 714 Headnote 6.

(c) The 5 signers, failing to place precincts, and the 11 signers, placing incorrect precincts, have invalidated their signatures for the reason that the general law, applicable under the charter, makes placing the precinct on a referendum petition in a registration city mandatory.

Pertinent parts of §731.31 R. C. read:

“* * * Each signer of any such petition must be an elector of the municipal corporation in which the election, upon the ordinance or measure proposed by such initiative petition, or the ordinance or measure referred to by such referendum petition, is to be held, and shall place on such petition, after his name, the date of signing, his place of residence, including street and number, and the ward and precinct. * * *” (Emphasis added.)

The Supreme Court in a per curiam opinion stated on pages 481 and 482 in State, ex rel. Poor v. Addison, 132 Oh St 477, 9 N. E. 2nd 148, 8 O. O. 459:

“We have quoted the foregoing in order to point out that the ward and precinct need not necessarily be placed on the petition by the signer himself but may be filled in by someone else under his direction and authority. However, the law is clear that the ward and precinct, whether written in by the signer himself or by someone else under his direction, must follow the signature of the signer in a petition on an initiative petition as in the case at bar. By reason thereof we hold that in a registration city like Columbus, on an initiative petition, a signature not followed, amongst other requirements, by the ward and precinct of the signer does not comply with §4227-4 GC, and therefore, cannot be held to be a valid and sufficient signature.” (Sec. 4227-4 GC now §731.31 R. C.)

Since the City of Mayfield Heights is registered only under precincts and has no wards, the designation of wards is impossible.

(d) The signature of the signer who had moved and placed his new address and precinct but had not made such changes with the Board of Elections is invalid for his rights as an elector are dormant until the registration records are corrected to conform to his changed situation.

(e) The 25 persons requesting the revocation of previous withdrawals, in our opinion, effected the reinstatement of their signatures. If the law permits withdrawals up until the time that official action is taken upon the petition, a liberal construction of the law requires that such persons also be permitted to reconsider their withdrawals within the same time interval in order to give them every opportunity to exercise this fundamental right.

State, ex rel v. Lloyd, 6 Abs 635.

“Revocation of withdrawal of name from referendum petitions, may be made up to time of bringing of action in mandamus ”

(f) Resume

288 valid signatures (unquestioned)

23 valid signatures (b) above.

21 valid signatures (b) above.

5 valid signatures (b) above.

2 valid signatures (b) above.

25 valid signatures (e) above.

364 TOTAL VALID SIGNATURES.

Since 371 valid signatures were needed on the petition under the charter of Mayfield Heights, and it being obvious from the above that such condition had not here been met, the Clerk of Council acted properly in reporting it insufficient to the Council of Mayfield Heights.

Respondents claim that the Committee, under §731.32 R. C., was required to file a verified copy of the proposed ordinance with the City Auditor or Clerk. We do not agree with that contention. The charter of Mayfield Heights, Article VIII, Section 4, requires that each part of the petition shall contain “a full and correct copy of the title and text of the proposed or referred ordinance.” The petitioners complied with this provision of the charter. The reference to the general law in the charter, under the heading of Initiative, Referendum and Recall Petitions, refers only to the general law with respect to the signing, circulating, form and affidavit of the petition and not to general requirements otherwise in referendum proceedings.

We do not find that the evidence, by a preponderance, supports the claim of the defendant that the affidavit of Exhibit C-23 was false.

Courts should be liberal in construing the right of citizens to invoke the constitutional privilege of referendum because such right is an invaluable arm of the democratic process. In so doing, however, courts cannot disregard the clear and mandatory requirements of law with respect to its exercise.

Writ denied. Exceptions. Order see journal.

SKEEL, J, HURD, J, concur.


author: By DEEDS, J.

text:
    CLARK, Plaintiff-Appellee, v. QUALITY FINANCE, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2365.
    Decided May 3, 1956.
    Arthur T. Eaton, Dayton, for plaintiff-appellee.
    Russell L. Carter, Mason Douglass, Dayton, for defendant-appellant.
    (DEEDS and CONN, JJ, of the Sixth District District, sitting by designation in the Second District.)
   OPINION

By DEEDS, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Montgomery County in the sum of $5,000.00, entered following the verdict of a jury in the sum of $20,000.00, after the consent to a remittitur by the plaintiff in the amount of $15,000.00.

The cause is before this Court for review on a transcript of the record of the proceedings in the Court of Common Pleas, a bill of exceptions, and the oral arguments and briefs of counsel for the parties respectively.

The action by the plaintiff was for damages for alleged malicious prosecution, and the case was tried on the amended petition of the plaintiff, the amended answer of the defendant, and the reply of the plaintiff to the amended answer.

The defendant-appellant has presented its assignment of errors as follows:

(1) That the trial court erred in not directing a verdict for the defendant at the close of plaintiff’s evidence.

(2) That the trial court erred in not directing a verdict for the defendant at the close of all the evidence.

(3) The verdict of the jury was against the manifest weight of the evidence.

(4) The verdict of the jury was influenced by passion and prejudice, resulting in a verdict and the award of excessive damages.

(5) The verdict of the jury was contrary to law.

(6) The Court erred in not granting defendant’s Motion for a New Trial upon the grounds assigned in said Motion, as exemplified by the Record of:

(ai Misconduct of the jury in concealing prejudicial facts on voir dire, by which plaintiff was denied due process in derogation of its substantial rights to a fair and impartial jury.

(b) Passion and prejudice created by unfortunate and improper remarks in behalf of the plaintiff.

(c) Other errors appearing of record.

Plaintiff alleges in his amended petition that the defendant, by its agent, preferred a criminal charge against the plaintiff, by charging plaintiff falsely in a sworn affidavit that plaintiff had by false representations and pretenses obtained possession of a certain sum of money, to-wit: $620.00, with the intent to steal said money and fraudulently cheat defendant and to unlawfully convert said money to plaintiff’s own use, thereby causing the arrest of plaintiff, and also the indictment of plaintiff by the Grand Jury of Montgomery County, and that said indictment was nollied in the Court of Common Pleas.

Plaintiff alleged further that he was confined to jail and suffered loss and damage to his reputation, credit and business, and plaintiff prayed for a judgment against defendant in the sum of $25,000.00.

The pertinent part of the amended answer of the defendant is as follows:

“Further answering, this defendant admits that Paul B. Harris, Jr., its manager and authorized agent, did execute an Affidavit last year averring that the plaintiff unlawfully obtained $620.00 from the Quality Finance, Inc., by false and fraudulent representation well knowing the said representations to be false with the intent there and then the aforesaid property to steal, take and carry away and convert to his use.
“Further answering, the defendant alleges and says that on the 3rd day of June, 1953, the plaintiff stated that he, while doing business as the Direct Television and Appliance Company at 607 Wayne Avenue; Dayton, Ohio, had delivered and installed 1 - 3/4 Servel Air Conditioner RAC-937M 1604932 and 1 - 3/4 Servel Air Conditioner RAC-93-1-M 1689880 to the Funeral Home of C. W. Dickens, 1025 W. 5th Street, Dayton, Ohio, and that this defendant’s manager and agent, while acting for and on behalf of it and within the scope of its employment, relied upon said statement of the plaintiff and delivered to the plaintiff the check of this defendant in the amount of $620.00 in exchange for and an assignment of a certain promissory note payable to the plaintiff’s business, The Direct Television and Appliance Company by the said C. W. Dickens, when in truth and in fact, no such air conditioning equipment had been delivered and installed at 1025 W. 5th Street, Dayton, Ohio by the said plaintiff or his company. That several attempts were made between the 3rd day of June, 1953 and the 12th day of June, 1953 by the defendant through its said manager and agent to contact the plaintiff to have the plaintiff to install said equipment or return to it the $620.00, but the plaintiff couldn’t be found in the city of Dayton, Ohio, at times and/or the plaintiff’s place of business was closed on weekdays, thus the defendant used all reasonable means and diligence in the premises.
“The defendant further answering says that after the indictment of the plaintiff by the Grand Jury of Montgomery 'County, Ohio, April Term, 1953, the same was nollied, only as a result of a compromise or settlement of and between the parties herein.
“Further answering the defendant herein avers and says that its agent submitted the complete facts and circumstances related above and many more relative to the plaintiff’s actions and statements, impartially, fully and freely, in good faith, to a respectable attorney at law and an assistant prosecuting attorney of Montgomery County, Ohio, both before and after he signed the said Affidavit against the plaintiff on June 12, 1953, who advised the defendant’s agent that the facts constituted sufficient cause for the arrest of the plaintiff, and that the defendant’s agent at all times before signing said Affidavit and until the indictment was nollied on the 8th day of September, 1953, received said advise and honestly relied on same and that as a result of said advise believed he had a cause of action against the plaintiff sufficient to warrant his signing said Affidavit and to show that the plaintiff was guilty of the crimes the plaintiff was indicted for.
“Further answering, the defendant denies that it falsely and maliciously, without reasonable or probable cause, caused the plaintiff to be arrested, and denies that the prosecution is terminated or resulted in favor of plaintiff.”

The plaintiff in his reply denied the affirmative allegations of defendant’s amended answer which were inconsistent with the allegations of plaintiff’s amended petition.

The facts pertinent to a consideration of this appeal are that plaintiff was engaged in the television and general appliance business, including air conditioning units, and that defendant is a small loan corporation engaged in the buying and discounting of notes and commercial paper secured by chattel mortgages. It appears further from the evidence in the record that plaintiff made arrangements with the defendant for the discounting of notes and mortgages to the defendant, secured from buyers of appliances. It appears further that on or about June 3rd, 1953, one of plaintiff’s agents sold two air conditioning units to a customer, from which customer plaintiff received a note secured by chattel mortgage in the amount of $761.04, which note and mortgage plaintiff by his agent sold and discounted to defendant, receiving therefor from the defendant a check in the sum of $620.00, and same was deposited in plaintiff’s bank and converted to the use of the plaintiff. It further appears from the evidence that plaintiff did not own or convey the air conditioners described and purported to be conveyed and described in the chattel mortgage securing the note, to the purchaser, but did notwithstanding his failure to deliver the conditioners to the purchaser, sell and discount the note and mortgage to the defendant.

It also appears from the evidence in the record that plaintiff had not had the air conditioners in his possession at any time, nor did he at any time deliver any property or air conditioners to the purported purchaser of same, although the purchaser had executed the notes and mortgages from which plaintiff received the sum of money paid him by defendant as described above.

It further appears from the evidence that agents of defendant attempted to contact and communicate with the plaintiff but were unable to reach or gain any information from plaintiff and that thereafter, with the advice of counsel, defendant caused the arrest of the plaintiff which subsequently resulted in his indictment by the Grand Jury and the indictment thereafter being nollied as alleged in defendant’s amended answer.

The jury, following a trial, returned a verdict in favor of the plaintiff and against the defendant in the sum of $20,000.00, which verdict was signed by nine jurors.

Defendant filed its motion for a new trial, and also its motion for judgment notwithstanding the verdict.

In passing upon plaintiff’s motion for a new trial the trial court made a determination in part as follows:

“This cause came on to be heard on the motion of the defendant for a new trial and the Court being fully advised in the premises and on due consideration thereof, does hereby order a remittitur of Fifteen Thousand ($15,000.00) Dollars, reducing the verdict of the jury from Twenty Thousand ($20,000.00) Dollars to Five Thousand ($5,000.00) Dollars, and if plaintiff accepts said remittitur of Fifteen Thousand ($15,000.00) Dollars, the motion for a new trial will be overruled, otherwise a new trial will be ordered.
“Further, this cause came on to be heard on the application for re-hearing, filed by the plaintiff herein, requesting the Court to modify its decision on defendant’s motion for a new trial and the Court on consideration thereof, does hereby overrule said application, to which plaintiff excepts.
“Defendant’s motion for judgment notwithstanding the verdict is hereby overruled.”

Following which order and the written consent of the plaintiff to such remittitur, the Court of Common Pleas ordered and entered judgment as follows:

“It appearing to the Court that the plaintiff herein has consented to a remittitur of the verdict in the above entitled case heretofore returned by the jury, in excess of Five Thousand ($5,000.00) Dollars, the Court does hereby overrule defendant’s motion for a new trial and does hereby grant plaintiff judgment against the defendant, Quality Finance, Inc., in the sum of Five Thousand ($5,000.00) Dollars and costs.”

It is the unanimous conclusion of this Court that the verdict of the jury was manifestly against the weight of the evidence and that the judgment in the sum of $5,000.00 entered following plaintiff’s consent to a remittitur in the amount of $15,000.00 should be reversed. We find defendant’s remaining assignments of error not well taken, and same are overruled.

Judgment of the Court of Common Pleas is reversed and the cause is remanded for a new trial.

HORNBECK, PJ, CONN, J, concur.