author: By BACON, J.

text:
    FULTZ, Admr.: Estate of, In re SINGER, Plaintiff, v. SINGER et, Defendants.
    Probate Court, Meigs County.
    No. 16779.
    Decided April 3, 1958.
    Webster & Fultz, Pomeroy, for plaintiff.
    William Saxbe, Atty. Geni., Ben A. Swartz, Asst. Atty. Geni., for defendant, Division of Aid for the Aged. >
    Crow, Crow & Porter, Pomeroy, for defendant, Iva A. Singer.
   OPINION

By BACON, J.

Henry Guy Singer died intestate September 17, 1954. Iva A. Singer, his widow, commenced administration of his estate November 6, 1954. Not desiring to complete it, she resigned as administratrix July 7, 1956. Her action to take decedent’s real estate at appraised value was dismissed December 1, 1956. Subsequently decedent’s land was sold by plaintiff January 25, 1958 pursuant to court order in these proceedings. The question now arises as to proper distribution of the proceeds.

Commencing October 1940 and until his decease, Henry Guy Singer was a recipient of Aid for the Aged, receiving from the state treasury $7,507.89. He executed a certificate of lien under §1359-4 GC (now §5105.24 R. C.), filed June 18, 1952, recorded Vol. 77 page 358. Mortgage .Records of Meigs County. His spouse, Iva A. Singer, joined in it.

The inventory of the estate was filed November 13, 1954 and approved December 6, 1954', the only asset listed being the real estate sold in these proceedings. There being no personal property the appraisers found $540.00 was needed to satisfy the widow’s exemption under §2115.13 R. C. The appraisers further certified that $1,800.00 in cash would be necessary to provide for the widow’s support for one year. There were no minor children of the decedent. The latter sum the appraisers allowed under §2117.20 R. C.

The defendant, Division of Aid for the Aged, contends that its claim' for aid paid decedent takes priority over the widow’s exemption from administration and the allowance by the appraisers for the widow’s support for one year. This the Division claims under the provisions of §5105.24 R. C.

If another Section of the Aid for Aged law, §5105.13 R. C., which we will discuss later, is ambiguous and uncertain according to the Supreme Court of Ohio, in the case of Division of Aid for the Aged v. Hogan, Administrator, 143 Oh St 186, 28 O. O. 109; then said §5105.24 R. C., is a monstrosity in the law comparable to Cerberus when he was fifty-headed, or perhaps more aptly to he, said to have released Zeus from his rawhide thongs tied in a hundred knots, the hundred-handed Briareus.

The Division avers that the pertinent provisions are to be found in the last paragraph of said §5105.24 R. C.

“The division may waive the priority of its lien to provide for the costs of the last illness as determined by the division, administration, attorney fees, administrator fees, a sum for the payment of the costs of burial, which shall be computed by deducting from three hundred dollars whatever amount is available for the same purpose from all other sources, and a similar sum for the spouse of the decedent.” maintaining that because the widow’s exemption and her year’s allowance are not enumerated therein the Division cannot waive to allow their payment in the administration of estates where it has a statutory-claim under §5105.13 R. C., and a lien under §5105.24 R. C. The Division's interpretation carries with it the connotation that probate courts might be compelled to express its humble thanks to the Division in virtually these words: “Certainly white of you folks in the Division to waive your lien so we can pay probate court costs, attorney fees and administrator fees in.the administration of estates.” Such an interpretation would be an intolerable invasion of the jurisdiction of probate courts in the administration of decedent’s estates.

The only legal conclusion is that the priority which it is provided the Division may waive is established earlier in §5105.24 R. C., in these words: “The lien shall take priority over any other lien subsequently acquired or recorded except tax liens.” These being the only words defining priority of the Division’s lien, how can later provisions for waiving such priority strengthen or enlarge it? This conclusion may emasculate the last paragraph so as to leave it meaningless, but it is opined no more meaningless than the legerdemain attempted, with mirrors yet, in attaching “as an incident of the lien” some sort of life estate or freehold in the recipients and their spouses, which in passing we could only interpret as a guarantee, rather than a life estate, that the Division would not and subsequent lienholders could not interfere with the use of the property by the recipient or his spouse during his or her lifetimes in their absence of doing some act that would constitute waiver or forfeiture of a life estate.

Unquestionably §5105.13 R. C., is controlling upon the death of a person owning real or personal property, who himself or his spouse has received aid under §5105.01 to 5105.29, inclusive, R. C. No matter that the Division had a lien of record covering decedent’s lands. The language of §5105.24 R. C., the lien section, specifically provides:

“All real property subject to the lien of the division upon the death of the persons entitled to use or reside in the premises, or upon waiver of the life estate by the survivor, may be sold in foreclosure proceedings or in the administration of the owner’s estate and the proceeds applied as provided by law.”

In the instant case the land subject to the lien of the iDivision was sold in the administration of the owner’s estate, and the words “and the proceeds applied as provided by law” can only mean that the provisions of §2127.38 R. C., must be observed sofar as they are applicable. Then §§2117.25 and 5105.13 R. C., must be reconciled.

Since §5105.13 R. C., provides that the Division’s claim is subordinate to that of the surviving spouse for property exempt from administration and the year’s allowance for the support of the widow and minor children, if any, it follows that the proceeds of the sale of lands of plaintiff’s decedent must be applied in the following order:

(1) Costs and expenses of sale, including the fees heretofore fixed by the court for services of the administrator and attorney in connection with the land sale. Sec. 2127.38 R. C.

(21 Taxes, penalties and interest against the land. Sec. 2127.38 R. C.

(3) Other costs of administration of decedent’s estate, including reasonable fees to the attorney handling the application, appointment, inventory, schedule of debts, account, etc. Sec. 2117.25 R. C.

(4) Bill of the funeral director, not to exceed $300.00. Sec. 5105.13 R. C.

(5) Widow’s exemption from administration in sum of $540.00. Secs. 2115.13, 2117.25 and 5105.13 R. C.

(6) Allowance to the widow for her support for one year in the sum of $1,800.00. Secs. 2117.20, 2117.25 and 5105.13 R. C.

(7) Reimbursement to the Division of Aid for Aged, upon its preferred claim for aid paid decedent. Sec. 5105.13 R. C.

It is apparent that the proceeds of the sale are insufficient to leave anything for claimants subordinate to the Division of Aid for the Aged, and we need go no further.


source: Caselaw Access Project

author: By BRYANT, J.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. COX, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5751.
    Decided February 25, 1958.

      Samuel L. Devine, Pros. Atty., John E. Compson, Albert G. Giles, Asst. Pros. Attys., Columbus, for plaintiff-appellee.
    John M. Scott, Goldie K. Mayer, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

Willard Cox, defendant-appellant herein, has appealed on questions of law from his conviction by a jury in Common Pleas Court of Franklin County on two counts of incest, contrary to §2905.97 R. C. The offense charged in the first count is alleged to have occurred on or about May 15, 1956 and the offense charged in the second count is alleged to have occurred on or about June 1, 1956. The indictment charged that Cox, a married man, on the days above set forth, committed incest with his thirteen-year-old daughter, knowing her to be such.

After being given the psychiatric examination required by §2947.25 R. C., and found to be sane, the trial court sentenced Cox to the Ohio Penitentiary on each of the two counts, the sentences to run concurrently. Inasmuch as §2951.04 R. C., denies probation to persons convicted of incest, Cox received the minimum permissible sentence.

As grounds for his appeal to this court, Cox makes the following two assignments of error:

“1. The judgment is against the weight of the evidence.”
“2. Irregularities in the trial and proceedings wherein the prosecuting attorney was admonished by the court for his insinuations respecting the character and activities of the wife and her step-daughter.”

We will first consider the so-called irregularities in the trial, which is assignment of error No. 2, supra. Two of the so-called irregularities involved questions which were asked but were unanswered and the third relates to a portion of the opening argument on behalf of the State. We are told in the brief filed on behalf of Cox that the stenographic record of these alleged irregularities appear in the bill of exceptions at pages 129, 148 and 157. .

The first alleged irregularity (bill of exceptions, p. 129) occurred during the re-cross-examination of Cox by an Assistant Prosecuting Attorney. The questions objected to concerned the contents of a petition for divorce which Mrs. Cox had filed previously against Cox. The defendant had testified in substance that the ground for the divorce petition was failure to provide. The proceedings which ensued and to which defendant objected are as follows:

“Q. Let me ask if she didn’t also accuse you of assault, beating her and the minor children?”
“MR. SCOTT: I object.”
“THE COURT: No. I will sustain the objection. That is just an accusation. It is just like an indictment that is brought in by the grand jury, and they are not evidence. The jury will disregard the question.” The second alleged irregularity (bill of exceptions, p. 148)' took place while Mrs. Lola Cox, wife of defendant, was on the witness stand as a defense witness and was being cross-examined by an Assistant Prosecuting Attorney. The proceedings objected to by the defendant are as follows:
“Q. Now, just one other question, Mrs. Cox. There is a charge pending against you for contributing across the street, concerning Marlene; is that right?”
“MRS. MAYER: I object.”
“MR. SCOTT: And they wouldn’t try it.”
“THE COURT: It doesn’t make any difference what the charge is. It is just like when we have an indictment in here. We know it is not evidence. Sure, they can charge people with anything, but that is not evidence, and let’s not have anything about charging people with anything, unless you have something more to back it up, because in this Court we tell them that the indictment itself is not evidence, but only it is a charge, an accusation.”
“MR. GILES: Well, if the Court please, the only purpose of that question was to show the interest this witness has in this case in testifying — ”

The third and final irregularity was a statement contained in the opening argument on behalf of the prosecution and is set forth in the bill of exceptions, p. 157, as follows:

“MR. COMPSON: Remember this, Lola Cox is under a cloud in a charge made across the street for contributing to the delinquency of this stepdaughter.”
“MRS. MAYER: Oh, I object.”
“MR. SCOTT: Yes, we object to that.”
“THE COURT: The jury will disregard that particular statement. That doesn’t ■ mean anything. You can charge people with anything you see fit, but it doesn’t amount to anything until it is proved beyond a reasonable doubt.”
“MR. COMPSON: I apologize, Your Honor.”
“THE COURT: Yes, that is all right.”

As to the first two claimed irregularities we note that they consist merely of questions which were not answered. We note also in both cases that the court promptly sustained the objection to the question and no answer was given. As to the third alleged irregularity, the court sustained the objection and instructed the jury to disregard the statement and the Assistant Prosecuting Attorney apologized then and there to the court.

Whatever error there may have been in the two questions and the statement objected to was corrected by the prompt action of the court in sustaining the objection and we are unable to say the defendant was prejudiced thereby. But were these questions and the statement necessarily objectionable? It will be remembered that Mrs. Cox was called as a witness for the defense, and a fair reading of the testimony leads to only one conclusion that Mrs. Cox at one time concurred in her daughter’s statement that Mrs. Cox held the hand of Marlene while Willard Cox committed or attempted to commit incest. It is true that at the trial in Common Pleas Court, Mrs. Cox denied the fact but she did not deny having previously joined in the sordid story told by Marlene Boring. The probation officers at the Juvenile Court support this interpretation.

There appears little doubt that previously Mrs. Cox filed suit for divorce against Cox. Counsel for Cox opened up the matter by questions asked of Mrs. Cox. She attempted to explain it by saying (bill of exceptions, p. 132) “when I was mad and brought these charges of abuse against my husband.” On the next page she testified: “I just let my emotions fly away with me,” stating she then went to the police.

At p. 135 of the bill of exceptions, Mrs. Cox testified: “I was going to sue for a divorce, because I was so mad that I didn’t want any more to do with my husband.”

We refer to the above quotations and others might be pointed out to show that counsel for the defendant went into the question of the divorce and the difficulties between Mr. and Mrs. Cox in the testimony of Mrs. Cox. Having opened the door wide upon direct examination by the defense witness we do not believe that the defendant can successfully complain when the State merely sought to further develop the same subject. But as pointed out above neither of the questions was answered and in all three cases the objections were sustained promptly, hence it is clear that no prejudicial error occurred. The second assignment of error must, therefore, be overruled.

The remaining error assigned is that the judgment is against the weight of the evidence. Marlene Boring testified fully and completely and if her testimony is to be believed, made a complete case for the prosecution. Cox on the other hand made a complete denial of the truth of the charge, taking the stand as a witness on his own behalf. The members of the jury saw as well as heard the various witnesses. The jury obviously accepted the story as told by Marlene Boring and rejected that told by Willard Cox. The jury had an absolute right to do so. Cox, while on the stand, volunteered the information that twice previously he had been convicted of felonies and had served terms of imprisonment therefor. While the previous convictions were no evidence of Cox’s guilt on the charge of incest, the jury had a right to take such convictions into account along with all the other facts and circumstances in determining the truth or falsity of Cox’s story.

We cannot say as a matter of law that the evidence is insufficient to support the verdict of the jury. We conclude, therefore, that the first assignment of error is not well taken and must be overruled.

In the brief of defendant-appellant, an extract from the judge’s charge to the jury is quoted and an objection thereto is registered. The language complained of makes reference to the biblical denunciation of incest. However, no error is assigned with reference to this particular matter and it would appear that defendant may not press for consideration matters not set forth in the assignment of errors.

For the reasons above set forth, both assignments of error must be overruled and the judgment of the court below affirmed.

PETREE, PJ, MILLER, J, concur.


author: By LEACH, J.

text:
    BAILEY etc., Plaintiffs, v. HUFF, Defendant.
    Common Pleas Court, Franklin County.
    No. 187797.
    Decided July 7, 1956.

      George E. Tyack, Howard F. Wehr, for plaintiffs.
    Gingher & Christensen, for defendant.
   OPINION

By LEACH, J.

At the close of the evidence on behalf of the plaintiff, the Court, on motion by the defendant, directed a verdict in favor of the defendant on the ground that the evidence on behalf of the plaintiff, even when construed most favorably to the plaintiff, did not support a submission to the jury on the question of whether plaintiff’s injuries were “caused by the wilful or wanton misconduct” of the defendant, within the purview of the “guest statute,” §6308-6 GC. This case is now before the Court on plaintiff’s motion for new trial, the sole issue being whether this Court erred in so directing a verdict.

The evidence was undisputed that plaintiff sustained personal injuries on December 9, 1952, when the automobile in which she was a guest and being driven by the defendant was involved in a collision with another car at the intersection of U. S. Route 40, West of Columbus, and Wilson Road; that defendant had been proceeding eastwardly on Route 40 and was in the process of making a left hand turn into Wilson Road while the other vehicle was proceeding through the intersection in a westwardly direction.

The brief of the plaintiff, filed in support of her motion, does not contend that defendant was guilty of “wilful misconduct,” as that term has been defined by the Supreme Court in Tighe v. Diamond, 149 Oh St 520, but in effect contends that reasonable minds might at least differ on the question of whether defendant was guilty of “wanton misconduct.”

Wanton misconduct is defined in the first paragraph of the syllabus of Helleren, Admx. v. Dixon, 152 Oh St 40, as follows:

“1. Within the meaning of §6308-6 GC, wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. (Universal Concrete Pipe Co. v. Bassett, 130 Oh St 567, approved and followed.)”

Wanton misconduct is not merely a high degree of negligence. The difference between wanton misconduct and negligence is one of kind and not merely of degree. Universal Concrete Pipe Co. v. Bassett, 130 Oh St 567; Akers v. Stirn, 136 Oh St 245.

It will be noted that wanton misconduct requires proof not only of such conduct as manifests a disposition to perversity but also that such conduct was under such .■ conditions that the party must be conscious, from his knowledge of the surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury A disposition to perversity, standing alone, is not sufficient to establish wanton misconduct. Miljak v. Boyle, 93 Oh Ap 169. (Motion to certify overruled.) Furthermore, the perversity of conduct must be the proximate cause of the injuries. Ulrich v. Massie, 89 Oh Ap 362; Fessel v. Schwartz, 94 Oh Ap 201. (Motion to certify overruled.) In such action the guest must plead unequivocally that the operator had knowledge of existing conditions. Vecchio v. Vecchio, 131 Oh St 59. Obviously therefore, the guest must prove unequivocally that the operator had knowledge of the existing conditions which resulted in the collision and the injuries to the guest.

Let us now apply these basic principles to the issues in this case as made up by the pleadings and to the proof adduced on behalf of the plaintiff. The petition alleged that plaintiff’s injuries were “directly caused by the wilful act and wanton negligence” of the defendant in five respects. As was true of the petition in the Vecchio case, we find here a misuse of terms as there is no such thing as “wanton negligence” but as there stated at pages 64 and 65, we would not permit the misuse of the term to nullify it.

The first claim of the petition is “In wilfully and wantonly directing his automobile across State Route 40 at a speed greater than he could control, and without first ascertaining the traffic conditions on said highway.”

The first portion of this charge implies a loss of control of defendant’s car. There was evidence by the testimony of the plaintiff that defendant was driving at a speed of approximately 35 to 40 miles per hour approaching Wilson Road (the prima facie lawful speed being 50 miles per hour); that defendant pulled into the separate left hand turn lane and proceeded to turn left without slowing up. There was absolutely no evidence, however, that defendant at any time lost control of his autmobile, that it skidded around the corner, that it swayed, wobbled, tipped or did anything else indicating any loss of control.

The second portion of this charge is simply to the effect that defendant should have seen and yielded the right of way to the car going west on Route 40. In effect, this is merely a claim that defendant ought to have known of the presence of the west-bound vehicle, this, therefore, being only a claim of negligence.

The second claim is: “In wilfully and wantonly driving while intoxicated.” There was evidence by the testimony of the defendant that he had consumed several beers, and evidence by the testimony of a deputy sheriff, who arrived after the accident, and by a police chemist based on a urinalysis that defendant was under the influence of alcohol. There was no testimony by the plaintiff as to defendant’s condition with relation to intoxication.

In our opinion, the fact that defendant was intoxicated does not satisfy the requirement of law that plaintiff prove that defendant was conscious, from his own knowledge, that his conduct will in all common probability result in injury. While the case of Kirk v. Birkenbach., 22 Abs 569, might be construed as so holding, it will be noted that this case relied upon the definitions of “wilful negligence” as employed in Higbee Co. v. Jackson, 101 Oh St 75, and Reserve Trucking Co. v. Fairchild, 128 Oh St 519, although the term “wilful negligence” had been rejected as' a misnomer and the holdings of these two cases modified by the Universal Concrete Pipe Co. supra, some ten months before, and no reference was made to that case. Nor was reference made either to Vecchio v. Vecchio, supra, decided some nine months before. Contrast Oliver v. Holcomb, 22 Abs 277, holding that intoxication was not sufficient to constitute wanton misconduct and relying on the Universal Concrete Pipe Co. case and Vecchio v. Vecchio, decided shortly before that time. We agree with the reasoning of the Oliver case.

The third claim is: “In wilfully and wantonly allowing this plaintiff to enter his automobile knowing himself to be intoxicated.” While, as noted before, there was evidence of intoxication, there was absolutely no evidence adduced showing or even indicating that defendant knew that he was intoxicated or that he knew that he was an unsafe driver as a result thereof. To the contrary, the testimony of the police chemist, a witness for the plaintiff, was to the effect that persons with an alcoholic content in the urine of the percentage found in the defendant would honestly believe that they were normal and perfectly capable of driving, although actually their normal facilities would be impaired. While there was evidence of protests by the plaintiff and a request that she be let out of the car, and testimony by the plaintiff that defendant’s wife asked to drive the car, it is noted that these protests were directed at the speed of 35 to 40 miles per hour and as noted before, there was no testimony by plaintiff regarding any intoxicated condition of the defendant. So far as the evidence shows, no one advised defendant at any time that he appeared intoxicated or incapable of safely operating his car for such reason.

The fourth claim is: “In wilfully and wantonly failing to inform this plaintiff that he was intoxicated before she entered his automobile.” This claim presupposes that defendant at such time knew that he was intoxicated, and what we have stated under the third claim is especially applicable here.

The fifth and last claim is: “In directing his automobile into the path of an oncoming car which he saw, or, but for his wanton disregard for the safety of this plaintiff, should have seen.” Here, in the language of Judge Stephenson in the Vecchio case is the “nucleus about which the case is constructed.” The injuries in this case were caused by the collision of the two cars .at the intersection. Remove the westbound car and the injuries would not have resulted. Thus the presence of the other car is the essential factor of the “surrounding circumstances and existing conditions” which establishes that the conduct of the defendant, at the time and place in question would “in all common probability result in injury.” To bring the case within the scope of the holding of the Supreme Court, therefore, plaintiff must plead, and obviously prove, that defendant had knowledge of such existing conditioxi. This she has failed to do.

In the first place the allegation that defendant saw, or should have seen, the oncoming car, is subject to the same infirmity as the petition in the Vecchio case in that it does not allege unequivocally that defendant had knowledge of such existing condition. The language “but for his wanton disregard” etc., adds nothing since “wanton disregard” itself must include actual knowledge.

In the second place, as we stated at the time we directed the verdict for the defendant, there was no evidence (1) that defendant saw the oncoming car prior to entering the westbound lanes of Route 40, or (2) that defendant, in effect, drove blindly with no effort to see or pay any attention to any traffic. On cross-examination defendant denied seeing the approaching car. Conceding that such knowledge can be proved by other than admissions by the defendant, there is no such proof. No one in the car advised him of the approach of the other car and so far as the proof went, apparently none of the passengers saw it either. This might be explained by the presence of another car standing with its headlights on in a southwesterly direction preparing to turn south or by a dip in the westbound lanes of Route 40 to the east of the intersection. In any event proof that defendant should have seen the oncoming car is obviously not proof that he was conscious, from his knowledge, of the presence of such car, and the basic claim of the plaintiff appears to be that since the accident did happen, defendant should have seen the other car and since he should have seen it, a jury question is presented as to whether he actually did see it. In our opinion, to submit the case to the jury and permit it to conclude that defendant actually saw the oncoming car would be to permit the jury to engage in sheer speculation. Furthermore, it was incumbent on plaintiff to show not only that defendant had knowledge of the danger created by the presence of the oncoming car but also that such knowledge was timely. Jenkins v. Sharp, 140 Oh St 80 at 83.

In Helleren v. Dixon, supra, recovery was denied in a case where the driver could not see ahead and stated that “I just took a chance on nothing happening,” Judge Taft concluding that “There is a wide gap between chance and probability.” It is somewhat difficult to reconcile this conclusion with the Jenkins case, supra, because there also the defendant took a chance on nothing happening as he drove through a stop sign, which he had seen, at a speed of 35 to 50 miles per hour at a blind intersection. We cannot extend the holding of the Jenkins case to cover the fact pattern here, however, since (1) the Helleren case was decided after the Jenkins case and afterward approved in Birmelin v. Gist, 162 Oh St 98, at 110 and, (2) there is ip my mind a clear distinction between driving through a blind intersection in violation of right of way and merely failing to yield the right of way. In the former any effective looking is impossible. In the latter a more careful looking would disclose the presence of danger but we cannot assume merely from the collision that there was a perverse refusal to make any attempt to look at all. If such assumption could be made, any failure to yield the right of way would constitute not only negligence, but also wanton misconduct since most, if not all, failing to yield involve an inadequate or careless lookout by the offending motorist.

For the reasons herein stated, together with the reasoning which we stated at the time of the direction of the verdict, the motion for new trial is overruled. Entry may be prepared accordingly reserving exceptions to the plaintiff.


author: By MILLER. J.

text:
    BAILEY, Plaintiff-Appellant, v. HUFF, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5549.
    Decided December 19, 1957.
    George E. Tyack, Howard F. Wehr, Columbus, for plaintiff-appellant.
    Gingher & Christensen, Paul R. Gingher, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER. J.

This is a law appeal from a judgment of the Common Pleas Court rendered upon a verdict directed for the defendant at the close of the plaintiff’s case. The action was one for damages for personal injuries suffered by the plaintiff while a guest passenger in the automobile owned and operated by the defendant.

The only question presented is whether the plaintiff offered sufficient evidence to make a prima facie case showing that the defendant was guilty of “willful or wanton misconduct” in the operation of his automobile and which was the cause of the plaintiff’s injuries. Such a fact must be found to exist before liability attaches. Sec. 4515.02 R. C.

The facts as shown by the record establish that the plaintiff and the defendant’s wife were employed at the Ternstedt Division of the General Motors Corporation,- terminating their employment at the same time on the date of the injury; that defendant called at the plant for the purpose of taking his wife home and since the plaintiff lived next door to the defendant she became a passenger in the car with the wife, both being seated in the front seat. The defendant then proceeded in a northerly direction a short distance to West Broad Street where he made a right turn into Broad Street and headed eastward. Broad Street is a divided highway with two lanes of traffic in each direction. The defendant then proceeded eastward at 35 to 40 miles per hour, which is a lawful rate of speed, for a total distance of approximately one mile when he arrived at the intersection of West Broad Street and Wilson Road. Just prior to- this intersection there is a third traffic lane for those cars making a left turn into Wilson Road. There was some evidence that in changing over to the inside traffic lane in preparation for making a left turn into Wilson Road the defendant cut sharply into the lane of a truck traveling in the same direction, narrowly averting a collision. The defendant then made a left turn across the westerly lanes of Broad Street without slacking his speed and in so doing was struck by an automobile proceeding in a westerly direction in Broad Street. There were no signs at this intersection controlling the traffic, and nothing to obstruct the defendant’s view of the approaching vehicle. Neither the plaintiff nor the defendant saw the approaching car; hence, there is no evidence that the defendant acted wilfully in the face of a dangerous situation, by taking a chance which would in all probability result in a collision between two cars.

The record also discloses that the defendant was familiar with this intersection having passed over the same on many occasions. It also appears that the defendant had consumed some beer that evening, was arrested after the accident and charged with driving while intoxicated, to which a plea of guilty had been entered.

While driving in the aforesaid manner in West Broad Street the wife requested the defendant to permit her to drive, although she testified she had no driver’s license. The plaintiff also testified she asked the defendant to let her out of the car after he narrowly averted the collision with the truck. This probably could not have been done with safety as West Broad Street is a much traveled thoroughfare

The question presented, therefore, became one of law, whether or not the evidence when viewed in its most favorable light towards the plaintiff, was sufficint to establish the fact that the defendant was guilty of “wanton misconduct.” The latest expression of what is meant by this term is found in the case of Helleren v. Dixon, 152 Oh St 40, the first paragraph of the syllabus of which provides:

“Within the meaning of §6308-6 GC, wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury. (Universal Concrete Pipe Co. v. Bassett, 130 Oh St 567, approved and followed.)”

Since the defendant had no knowledge of the approaching automobile lie was not aware of the fact that his crossing of Broad Street would probably result in injury. There was therefore no disposition to perversity as the danger never become apparent. The cited case also holds that when there is no substantial evidence tending to prove wilful or wanton misconduct within the meaning of the auto guest statute, the trial court should grant the defendant’s motion for a directed verdict. When Judge Leach passed upon the plaintiff’s motion for a new trial he cited numerous cases supporting his conclusion that the defendant had not been guilty of wanton misconduct. A repetition of these authorities would serve no useful purpose; hence we feel that this need not be done.

We are in full accord with the legal pronouncements found in Judge Leach’s opinion, and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By HORNBECK, PJ.

text:
    CELINA MUTUAL CASUALTY COMPANY, a Corporation, et, Plaintiffs-Appellants, v. FRALEY, a Minor et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5454.
    Decided April 23, 1957.
    Burchfield & Smith, James R. Burchfield, of Counsel, Columbus, for plaintiffs-appellants.
    H. Alfred Glascor, Columbus, for defendants-appellees.
    (HORNBECK, PJ, of the Second District, sitting by designation in Tenth District.)
   OPINION

By HORNBECK, PJ.

Plaintiffs appeal from a judgment in favor of Glen Fraley, a minor, defendant-appellee. The action was on behalf of the Casualty Company, subrogee of Paul W. Green, in the sum of $274.03, who was insured with the company. Green’s cause of action for damages was predicated upon negligence asserted against defendant, Glen Fraley, in the operation of an automobile causing a truck to collide with the parked automobile of plaintiff Green, resulting in property damage, over all, in the amount of $374.03. The case was submitted on issues between plaintiff and Glen Fraley to a judge without a jury who made a finding and entered judgment for the minor defendant.

Two errors are assigned:

1. The verdict and judgment is contrary to law and against the weight of evidence.

2. The court erred in overruling the plaintiffs-appellants’ motion for a new trial based on newly discovered evidence.

An examination of the record discloses that upon the issue drawn by the pleadings and the evidence adduced on trial, there was sufficient support for the verdict. The jury, as the trier of the facts, acted well within its province in accepting the testimony on behalf of the defendant minor and if it were true, he was entitled to the verdict.

We do not find the first error assigned well made.

Upon the second assignment of error, we must hold against the appellants for two reasons. First, unfortunately, we may not consider the affidavit of Ishmael Ross, driver of the truck which struck the automobile of plaintiff Green, because it is not carried into the bill of exceptions. DeSantis v. Brumbaugh, 7 Abs 711:

“To be considered by the court of appeals, affidavits filed in support of motion for new trial on ground of newly discovered evidence, * * *, must be made a part of original or subsequent bill of exceptions duly certified and signed by the trial judge.”

Other cases to like effect are: Koury v. Ferris, 9 Abs 462; Ferguson v. State, 1 Abs 410; Willett v. N. Y. Central Rd. Co., 73 Oh Ap 59; Riebel v. Hunt, 44 Oh Ap 299; King v. Edwards, 13 Abs 424; Hodge v. Weed, 12 Abs 591.

If the facts set forth in the motion for new trial and memorandum in support thereof could be considered, they disclose that the evidence of Ross is newly discovered; that it was material to the issues and that it was of such character as that, if accepted, in probability, it would change the result of the trial, if a new trial were granted. But there is no proof which establishes due diligence on the part of the plaintiffs to secure the testimony of Ross at the first trial. The memorandum sets forth conclusions that plaintiffs prior to trial had conducted most diligent search to find' Ross and learned that he had gone to the State of West Virginia and later located him in Delaware County but at no place is there any statement of what steps were actually taken to locate or contact Ross.

Upon the state of the record, the second assignment of error is not exemplified.

Neither error assigned having been established, the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: Per CURIAM:

text:
    TEWKSBURY, Plaintiff-Appellee, v. CACCIACARRO, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24228.
    Decided November 7, 1957.
    Harry J. Dworkin, for plaintiff-appellee.
    Baker, Hostetler & Patterson, for defendant-appellant.
   OPINION

Per CURIAM:

In this appeal on questions of law from a judgment rendered for plaintiff in the Municipal Court of Cleveland upon a jury verdict in the sum of $3500 for personal injuries sustained in an automobile accident, the only errors assigned are:

1) The trial court erred in overruling defendant-appellant’s objections to the improper closing argument of plaintiff-appellee’s counsel in referring to the economic condition and needs of plaintiff and his family and in asking the jury to place itself in the plaintiff-appellee’s place.

21 The trial court erred in overruling defendant-appellant’s motion for a new trial.

The bill of exceptions before us is partial only in that it does not contain any of the evidence produced upon the trial of the cause but contains only closing arguments of counsel and the charge of the court to the jury. There are no claims made that the verdict is excessive— induced by passion or prejudice or that it is contrary to the manifest weight of the evidence. Even if such claims were made, we have no means by which to test the verdict against the evidence due to the absence of a complete bill of exceptions.

As to assignmnt of error one, we find in examining the comments of counsel for plaintiff that one comment can reasonably be considered as a direct response to an argument advanced by appellant’s counsel, and, therefore, there was no error upon the part of the trial judge in overruling the objection.

As to the other comment of counsel complained of during argument, we think that it was improper but in the meager state of the record before us, we cannot say that it was prejudicial to the rights of the defendant. Therefore the judgment of the Municipal Court is affirmed for the reason that we find that substantial justice has been done under the provisions of §2309.59 R. C.

For applicable Ohio cases, see Elser v. Parke, 142 Oh St 261, 51 N. E. 2d 711; Hallworth v. Republic Steel Corp., 153 Oh St 349, 91 N. E. 2d 690; Sweeney v. Schneider, 73 Oh Ap 157, 53 N. E. 2d 820.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By THE COURT.

text:
    BLACKBURN, Plaintiff-Appellee, v. BLACKBURN, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5595.
    Decided May 21, 1957.
    Gale R. King, Columbus, for plaintiff-appellee.
    Henry A. Reinhard, Columbus, for defendant-appellant.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court, Division of Domestic Relations, wherein the court entered a decree of divorce in favor of the plaintiff on her petition and found against the defendant and dismissed his cross-petition. After granting the divorce upon the grounds of gross neglect of duty and extreme cruelty, the court made certain orders with reference to some small insurance policies belonging to the plaintiff upon herself and her thirteen-year-old daughter, gave her custody of said daughter, and awarded alimony in the amount of $2,500.00, payable in installments of $12.50 a week. The court did not disturb the real property which stood in the joint names of plaintiff and defendant and made no orders with reference to the same.

The assignments of error claimed to be erroneous and prejudicial to the defendant-appellant are as follows:

“(1) The decree and judgment of the trial court is contrary to the manifest weight of the evidence.
“(2) The decree and judgment of the trial court is not sustained by sufficient evidence.
“(3) The decree and judgment of the trial court is contrary to law.
“(4) Other errors of law occuring at the trial.
“(5) Abuse of discretion by the trial court preventing defendant-appellant from having a fair trial.
“(6) That the amount of alimony allowed plaintiff-appellee by the trial court is excessive.”

In view of the record in this case, which indicates that the wife had worked most of her married life, or approximately twenty years, and turned in all of her money toward the support of herself and family, it does not appear that the award of $2,500.00 alimony by the trial court can be considered unreasonable. After an examination of the record, the decision and judgment of the lower court, we conclude that the judgment is not against the manifest weight of the evidence and that there are no errors prejudicial to the defendant-appellant in the proceedings and judgment of the trial court. The six assignments of error set forth in the brief of defendant-appellant are hereby overruled.

Judgment affirmed.

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


author: By THE COURT:

text:
    GEIGER et, Plaintiffs-Appellees, v. BOOS, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 504.
    Decided March 25, 1954.

      William T. Hicks, Springfield, for plaintiffs-appellees.
    Jenkins, Williams, Wendt, Murray & Deeg, Columbus, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment entered on the verdict rendered in favor of plaintiffs.

Plaintiffs, the father and mother of Robert Geiger, a minor, sued to recover expenses and for loss of services of their minor child as a result of a collision which occurred between an automobile, which at the time was being operated by the defendant, and a bicycle being operated by the minor.

Plaintiffs charged the defendant with negligence in that he failed to keep a proper lookout and failed to stop within the assured clear distance ahead. Defendant pleaded a general denial and a defense of contributory negligence.

The evidence was to the effect that both the defendant and the minor were proceeding in a northerly direction on the highway during daylight; that a few hundred feet south of the point of collision there is a rise in the highway obstructing the view northward; that as defendant drove over the rise he observed the boy riding a bicycle on the right edge of the highway, a distance of several hundred feet ahead of him; that defendant was driving at a speed between thirty-five and forty miles an hour; that defendant observed the wobbling motion of the bicycle; that the boy had a rake over his right shoulder, which was held in his right hand, and with his left hand he guided the bicycle; that the defendant observed these facts for a considerable distance south of the point of collision; that when defendant got within ten feet of the bicycle the boy turned the bicycle to the left; that the defendant swerved his automobile to the left, but the two vehicles collided on the west or left side of the highway; that defendant’s automobile traveled 50 or 60 feet and stopped against the fence on the left side of the highway. There was evidence that skid marks made by the automobile extended in a southerly direction on the highway from the point where the automobile stopped, a distance of approximately 200 feet.

Defendant’s motion for a directed verdict at the close of the plaintiff’s case, and motion for new trial, were overruled. The defendant offered no evidence.

The defendant assigns as error: (1) Overruling of motion for directed verdict; (2) error in charge to jury; (3) error in admission of evidence; (4) judgment is not sustained by sufficient evidence, is against the manifest weight of the evidence, and is contrary to law.

We agree .with the ruling of the trial court that the facts present a jury question. Whether the defendant exercised the proper degree of care under the circumstancs was a matter for the jury to decide, which it resolved in favor of the plaintiffs. In our opinion there was sufficient evidence to support the verdict. The verdict is not against the manifest weight of the evidence, nor contrary to law. We find no error in the charge to the jury of a prejudicial nature. We find no reversible error in permitting the mother of the boy to testify as to the amount of damages the plaintiffs sustained as a result of the injuries.

Finding no error in the record prejudicial to the appellants, the judgment is affirmed.

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


author: By PHILLIPS, J.

text:
    KEROLA, Plaintiff-Appellee, v. CITY ASPHALT & PAVING COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3893.
    Decided March 28, 1957.

      W. Glenn Osborne, Youngstown, for plaintiff-appellee.
    Joseph P. Sontich, David C. Haynes, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

An agent of defendant corporation was operating a tractor hauling a road paver on a trailer in a northerly direction on Route 90, a duly dedicated, improved and accepted' state highway, twenty-four feet wide, at a place in Trumbull County about a mile south of Vienna, where that highway extends in a general northerly and southerly direction and crosses a bridge or culvert by a cement bridge where Route 90 levels off from a rise some distance south of the culvert and close to the entrance to Squaw Creek Country Club.

Plaintiff alleged in her amended petition that:—

“* * * she was in the act of passing this tractor and trailer and had proceeded only a short distance in passing when the truck and trailer of the defendant pulled over the center, or dividing, line of the highway and the trailer of the defendant struck the car plaintiff was driving and forced her off the road and caused the car to spin around and collide with the cement bridge located on Route 90.”

Plaintiff alleges she was caused to suffer personal injuries for which she sued defendant in the court of common pleas.

By amended petition plaintiff charged defendant with negligence in the following respects:—

“1. In operating its tractor and trailer across the center, or dividing line of the highway when plaintiff was attempting to pass the tractor-trailer and colliding with the car being driven by the plaintiff.
“2. In failing and neglecting to keep its tractor and trailer in its own line of travel, when defendant’s agent knew, or in the exercise of ordinary care should have known, that the plaintiff was attempting to pass.
“3. In failing and neglecting to give way to the right upon plaintiff’s signal shov/ing her intention to pass.
“4. In failing and neglecting to apprise plaintiff by horn, or a signal of some kind, of his intention to cross over the middle, or dividing, line of the highway while plaintiff was attempting to pass.”

The jury returned a verdict for the plaintiff upon which the trial judge after overruling defendant’s motion for a new trial duly entered judgment. Defendant appealed to this court on questions of law.

Defendant contends “there is sufficient evidence in this cause to declare that plaintiff-appellee’s actions were of such a nature that, as a matter of law, she was guilty of contributory negligence, and that defendant-appellant’s motion” made at the close of plaintiff’s case only should have been sustained; that the judgment of the trial court should be reversed on the urged grounds of “the plaintiff-appellee’s contributory negligence as a matter of law” and “error of the court in failing to direct a verdict for the defendant.”

In Halkias v. Wilkoff Co., 141 Oh St 139, the second paragraph of the syllabus reads:—

“When a motion of a defendant for a directed verdict is made at the conclusion of plaintiff’s evidence and overruled, the defendant has an election either to stand on his exception to the ruling or to proceed with his defense; and if he accepts the ruling, however erroneous it may be, and proceeds with his defense, introducing evidence on his own behalf, he thereby waives his right to rely on the denial of his original motion.”

Obviously the trial judge did not err to defendant’s prejudice as charged in this assigned ground of error.

The trial judge refused to charge the jury in writing before argument the following proposition of law requested by defendant:—

“The Court charges you, as a matter of law, that it was the duty of the plaintiff immediately prior to starting to pass the tractor-trailer of the defendant, to exercise ordinary care for her own safety and to use her sight to observe and avoid dangers incident to her passing said tractor-trailer and if you find, from the evidence, that the plaintiff, Joann Kerola failed to exercise ordinary care for her own safety at said time and place, and that such failure to exercise such ordinary care directly contributed in any degree to her accident, then and in that event, your verdict must be for the defendant, The City Asphalt Co.”

This request asked the trial judge to say. to the jury as a matter of law “that there were dangers incident to her (plaintiff’s) passing” and the words “to use her sight to observe and avoid dangers incident to her passing” were misleading.

In Leonardi v. The A. Habermann Provision Co., 143 Oh St 623, it is said in the second syllabus:—

“In an action to recover damages for personal injuries through the alleged negligence of another, it is not error to refuse to give a charge requested to be given before argument from the language of which special request a jury might reasonably infer that the court assumed the existence of material facts that were in dispute.”

The charge as submitted was properly refused.

Next, it is contended by the defendant that the trial judge abused his discretion “in refusing to continue the trial on the last day thereof until 1:30 P. M., so that counsel for defendant-appellant could have recalled the witness, Donald Henderson, for further cross-examination, after it was clearly shown by the State Highway Patrolman, Ralph Corger, that said witness Henderson had clearly falsified.”

Obviously defendant sought to show that witness Henderson had made prior inconsistent statements and thus attempted to impeach his testimony.

In Radke v. State of Ohio, 107 Oh St 399, syllabus 3, it is said:—

“Evidence relating to special impeachment tending to contradict some statement made by a witness in a cause on trial is not competent until the foundation is first laid by inquiring of the witness sought to be impeached as to whether or not, at some time and at some place, and to some person or persons, as definitely fixed or named as may be, he did not make some particular contradictory statement, advising the witness, at least in substance, what such statement was.”

Reviewing the entire record submitted to us we can not charge the trial judge with an abuse of discretion in the respect charged in the assigned ground of error under discussion.

Under the assigned ground of “other errors apparent upon the face of the record to which proper objections and exceptions were made and taken” defendant claims:—

“* * * no evidence was submitted on behalf of plaintiff-appellee as to medical and hospital expenses, in any amount, and it became a speculative matter for the jury. * * *
“* * * that there was no evidence concerning value of the medical expense, and amount of hospital bills, if any. This was conjectural, and the court did charge on the subject at B. X. 177:
“ * * and if you find that as a direct consequence of this accident and injuries she has incurred expenses, you will allow her an amount which the evidence by its greater weight impresses upon you as being such direct expenses; * * ”

The trial judge did not specifically mention medical nor hospital expenses in the portion of the charge of which complaint is made. We do not understand defendant’s claim that the portion of the charge under consideration was misleading to defendant’s prejudice.

Plaintiff’s attending physician testified as to the nature and permanency of plaintiff’s injuries, necessitating hospitalization on two occasions, the length of time she was under his care which necessitated his seeing her in the neighborhood of fifty times, and the necessity of future treatment — “yes it is going to be a long time I am afraid.”

Upon testimony and that evidencing the hospital expenses and the other expenses incident to restoring her to good health we certainly can not say that a verdict of $5,000.00 for permanent injury to a young girl is excessive; nor reverse the trial judge on the ground that he misled the jury by the portion of the charge of which complaint is made, especially when at the close of the charge when the trial judge asked counsel “have I omitted anything or been in error” defendant’s counsel replied, “nothing further, Your Honor.”

In Mansfield Public Utility & Service Co. v. Grogg, 103 Oh St 301, it is said at page 303:—

“In interpreting a charge the language employed, as a whole, as distinguished from any single paragraph, sentence or phrase, should be subjected to the test to determine whether the rules of law announced apply and cover fairly the case in its finally produced and completed state, and this without resort to supertechnicality.”

In Haas v. Kundtz, 94 Oh St 238. it is said in the second syllabus:—

“Where an instruction which is open to criticism has been given by a trial court to a jury and the record discloses that the instruction could not have resulted in prejudice to the complaining party, it is error for a reviewing court to reverse the judgment of the trial court upon that ground.”

Testing the charge in the light of that law we believe that “the rules of law announced apply and cover fairly the case in its finally produced and completed state,” and “that the instruction could not have resulted in prejudice to” defendant, and we can not reverse the judgment of the trial court on that ground.

Also under this assigned ground of error it is charged that the trial judge in interrogating a witness drew certain conclusions of the width of defendant’s truck and width of the road thus leaving an indelible impression on the minds of the jurors to defendant’s prejudice.

In C. A. King & Co., v. Horton, 116 Oh St 205, syllabus 1, it is said:—

“Where counsel in the introduction of evidence during the trial of a cause before the jury omit to develop facts tending to show that the contract between the parties which is the basis of the cause of action is unlawful and void, it becomes the duty of the presiding judge to further examine witnesses and develop the facts, and to submit the issues thus made to the jury under proper instructions as to the law applicable thereto.”

In Armour & Co., et al v. Yoter, 40 Oh Ap 225, syllabus 9, it is said:—

“9. Trial judge has active duty to aid in eliciting truth that verdict of jury may approach ends of justice.”

At page 238 of the opinion the court said:—

“The veiled charge that the trial judge was guilty of partiality in that he interrogated witnesses does not seem to us of much moment. Trial judges should not be relegated to the position of umpires only. A trial judge has an active duty to aid in eliciting the truth, in order that the verdict of a jury may at least approach the ends of justice. We deem it rather laudible on the part of the trial judge, within reasonable limits, to endeavor to clear up any doubts which may arise in the statements of witnesses. In our opinion the criticism of the trial judge in that respect is unfounded.”

In Bolatin-Drabkin Furniture Co. v. Batten, 18 Abs 113, syllabus 3, is it said:—

“It is not prejudicial error for the court to ask the defendant’s driver, who is testifying as to what he had seen and knew about an accident, whether he left the scene of the accident before the injured man was taken away in an automobile.”

Our conclusion in the case under review is identical with that reached in the case of Bolatin-Drabkin Furniture Co. v. Batten, where it is said on page 116:—

“It is not observable that anything that was said by the court in this connection would or could result prejudicially to the defendant. The witness is testifying as to what he had seen and knew about the accident, and then with regard to the plaintiff who was lying upon the sidewalk. Whether the witness was there or had left for some purpose might have an important bearing upon the testimony. In any event, it is not apparent that the jury would be prejudiced by reason of anything the court said in this connection.”

In Smith v. Rogers, 16 Oh Ap 110 at page 114 the court said:—

“The rule is well settled that errors or irregularities, which do not within themselves establish and clearly show prejudice to the substantial rights of the losing party, are not grounds for setting aside the verdict of the jury. Even substantial errors will not warrant such action on the part of the reviewing court when no injustice has been done the party complaining. Any improper remark made by the trial judge in the presence of the jury, which has a tendency to prejudice their minds in favor of the prevailing party, and against the unsuccessful party, is erroneous, yet such will not warrant a reviewing court to set aside a verdict and judgment in a case unless it clearly appears that such remark or statement of the judge was materially prejudicial to the losing party, and made with reference to something that was decisive of the case. * * *
“An objection and exception are necessary in order to lay the foundation for a review of the rulings of the trial court. Objections are made to the court, and after its ruling upon the question an exception may be noted. Objections are to the court, and the exception is and must be taken to such ruling. * *

Defendant claims “that the court of common pleas erred in not granting the defendant a new trial when the evidence overwhelmingly showed plaintiff to be guilty of contributory negligence as a matter of law.” Certainly from the evidence introduced in the trial court we can not say, and the trial court could not rightly say, that “reasonable minds can come to no other conclusion than that the plaintiff-appellee was guilty of contributory negligence, and the court should have directed in favor of the- defendant-appellant, and granted a new trial and possibly final judgment.”

As stated in disposing of defendant’s first assigned ground of error defendant waived the right to rely on the denial of its original motion for a verdict to be directed in his favor by not standing on its exceptions and proceeding with its defense.

However, we shall proceed to discuss the assigned ground of error that “the court of common pieas erred in not granting the defendant a new trial,” which obviously involves the question of whether “the evidence overwhelmingly showed plaintiff to be guilty of contributory negligence as a matter of law.”

In Biery, Admx., v. The Pennsylvania Rd. Co., 156 Oh St 75, at page 77 of the opinion, it is said:—

“The rule is well settled that upon a defendant’s motion for a directed verdict, the trial court must construe the evidence most strongly in plaintiff’s favor and submit the case to the jury if such evidence, with all inferences reasonably deducible therefrom, would permit reasonable minds to reach different conclusions with respect to those questions of fact essential to be proved by plaintiff.”

From the evidence we have reviewed we can not say, and the trial court rightly could not and did not say, that defendant rebutted the presumption of plaintiff’s exercise of ordinary care.

In McMurtrie v. Wheeling Traction Co., 107 Oh St 107, the second syllabus reads:—

“In all cases where in determining the existence or non-existence of contributory negligence it becomes necessary to detect the truth from conflicting evidence, it becomes a question of fact and not of law.”

In Painesville Utopia Theatre Co. v. Lautermilch, 118 Oh St 167. the syllabus reads:—

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury.”

Plaintiff was operating her automobile at the lawful rate of forty-five miles an hour, and had followed defendant’s vehicle for several miles, which she decided to pass at a place where the highway was marked by a dividing line and no traffic was approaching, which she had a legal right to do; and the skid marks made by plaintiff’s automobile were all on the westerly side of that highway which she used and had the right to use in passing defendant’s vehicle.

Plaintiff signalled her intention to pass defendant’s vehicle, and while in the act of passing defendant’s vehicle admittedly was operated or veered to the left of the center line of the highway, and the overhanging machinery which defendant’s vehicle was hauling struck the right front fender of plaintiff’s automobile causing plaintiff to lose control thereof.

We have exerted considerable effort trying to determine how under such evidence plaintiff can be charged with contributory negligence as a matter of law and why the trial judge should be charged with commission of error prejudicial to defendant in not granting it a new trial when upon original trial the verdict of the jury was supported by sufficient evidence, and certainly was not against the manifest weight thereof, and have not been able to do so.

We find no merit in this assigned ground of error.

Having disposed of defendant’s nine assigned grounds of error, some of which do not seem of much moment, at greater than usual length the judgment of the court of common pleas must be and is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By WALCUTT, J.

text:
    KETTERER, Estate of, In re.
    Probate Court, Franklin County.
    No. 163860.
    Decided August 29, 1956.
    John D. Connor, for the executor.
    William L. Schmidt, for the Heirs of George F. Ketterer.
   OPINION

By WALCUTT, J.

Julia Ketterer and George F. Ketterer, wife and husband, died intestate, leaving no children or lineal descendants thereof. Julia Ketterer left two brothers and four nieces an$ nephews, and George F. Ketterer left four nieces and nephews. Julia Ketterer died on February 12, 1955, and George F. Ketterer on February 17, 1955. The parties having died within thirty days of each other the provisions of §3105.21 R. C., prevail and it is conceded that the real estate which is the subject of this action will descend to the next of tin of the party who held legal title thereto.

The executor of the estate of Julia Ketterer seeks to sell two parcels of realty, Parcel No. 1, appraised at $17,000.00, and Parcel No. 2, at $300.00. There seems to be no question that such sale is required in order to pay the debts of the estate.

In their answer to the petition the nieces and nephews of George F. Ketterer, deceased, aver that Parcel No. 1, which is the one appraised at $17,000.00, was not the property of Julia Ketterer, but was the property of George F. Ketterer.

There is no dispute as to the ownership of Parcel No. 2, the one appraised at $300.00, and no further consideration will be given it.

Parcel No. 1 was purchased by George Ketterer, who, on November 13, 1948, executed in his own handwriting a deed to Julia Ketterer. The deed, however, was not acknowledged until April 5, 1950. Following the death of both the decedents this deed was filed and recorded in the office of the recorder of Franklin County, Ohio, by John D. Connor, attorney for the executor of Julia Ketterer’s estate.

The stipulation of the parties shows that George F. Ketterer had, since August 8, 1948, a safety deposit box in the Bexley Branch of the Ohio National Bank, which was released by his representative on February 17th, 1955, the date of his death, and that Julia Ketterer had leased from January 26, 1954, a box in the same bank, which was released during her lifetime on December 17, 1954. On December 17,1954, a deposit box was taken in the joint names of the decedents in the Bexley Branch of the Ohio National Bank, which box was released by their respective representatives on February 18, 1955.

In the box jointly owned by the decedents, there was found after their deaths, a deed in an envelope which bore the inscription “Ohio House of Representatives, George F. Ketterer, 960 North Nelson Road, Columbus, Ohio,” and the further notation, “deeds belong to Julia Ketterer.” In the envelope were two deeds, the original deed for Parcel No. 2 to Julia Ketterer, and the deed from George F. Ketterer to Julia Ketterer covering Parcel No. 1.

It is conceded that the notation, “deeds belong to Julia Ketterer” is in the handwriting of George F. Ketterer.

Parcel No. 1 is a lot of land improved with a single dwelling, which' was jointly occupied by George F. Ketterer and Julia Ketterer for some time prior to the dates of their respective deaths. Parcel No. 2 is an unimproved lot of land lying immediately to the rear of Parcel No. 1.

Subsequent to the acknowledgement of the deed to Parcel No. 1, which will be hereinafter referred to as “the deed,” George F. Ketterer paid the taxes on the real estate in question in 1952 and in 1954, and on December 3, 1952, installed a gas furnace at a cost of $730.00, which he paid.

The question, decision of which will be decisive in this case, is whether or not there was a delivery by George F. Ketterer and an acceptance by Julia Ketterer of the deed.

17 O Jur. 2d, Sec. 53, p. 152, says:

It is well settled that in order to convey title by deed there must not only be a proper execution and acknowledgment of the deed, but also a delivery for the purpose of passing title. It is an elementary principle that a deed, to be operative as a transfer of the ownership of real estate, must be delivered with intention by the grantor to sever his right to control the instrument further and an intention by the grantee to assume control over it. Delivery gives the instrument force and effect. * * *

(Page 153.) A deed which is not delivered, or which is not accepted by the grantee, derives no force from being recorded.

It is also essential (17 O. Jur. 2d, Sec. 54, p. 154),

In order to pass title by a deed of realty, not only must the grantor deliver the deed with the intention of having it take effect as a conveyance, but also, in order to complete delivery, an acceptance on the part of the grantee is essential.

The intention of the parties is of vital importance in considering the matter of delivery and acceptance. 17 O. Jur. 2d, Sec. 55, p. 155, states:

To pass title by deed there must be a delivery thereof by the grantor with intention to sever his right to control the instrument further, and there must also be an acceptance of the deed with the expressed or implied intent to take title as therein conferred.

The intent of the grantor is a paramount consideration on the question of the delivery of a deed. A delivery which will pass title occurs only when the grantor parts with his dominion over the deed with the intention to pass title. Intent to vest in the grantee the custody of the instrument, no less than that of the estate, is essential. Moreover, a deed must be delivered with the intention of having it take effect, before it will be effective to transfer title. It is essential to the valid delivery of a deed through a third person that the grantor intended to part with all the control ovér the deed at the time of depositing it with the third party. On the other hand, delivery with the intention of conveying title conveys title whether the deed is recorded or not.

Generally as to the nature and sufficiency of such delivery, the same authority says (page 158):

The delivery of a deed may be effected actually, by doing something and saying nothing, or verbally, by saying something and doing nothing; or it may be by both. No particular form or ceremony is essential; delivery may now be made by words and acts, or either, if accompanied with the intention that they shall have that effect. The grantor must part with the right of control and recall, and must intend to vest in the grantee the custody of the instrument as well as the estate, but manual delivery of the instrument is not necessary; nor is it necessary that delivery be by the grantor personally, or with intent that it take effect immediately. Where there has been a completed delivery of a deed, the deed is not rendered inoperative simply because the grantor retains possession of the property during his life, or because he has access to the deed.

It is not essential to the validity of a deed that there be manual delivery to the grantee, providing the grantor surrenders control thereof with intention to transfer title to the grantee.

Quoting again from 17 O. Jur. 2d, Section 64, p. 162:

The fact of delivery of a deed may be found from the acts of the parties preceding, attending, and subsequent to the signing, sealing, and acknowledgment of the instrument. In other words, a delivery is sufficiently proved if it appears from the circumstances attending its execution, or from what took place at any subsequent time in the life of the grantor — from what the grantor either did or said, or assented to, on the part of the others — that it was his intention at the time that the deed should take effect and pass title.

In this case the deed is found in a deposit box which is the joint property of the husband, the grantor, and wife, the grantee. Does this constitute sufficient evidence of delivery of the deed, where the notation that it is the property of the wife is made by the husband?

The general rule as to whether the appearance of such a deed in a deposit box jointly owned is evidence of delivery and acceptance is stated generally in 14 O. L. R. 2d, p. 968, to be that:

Where an unrecorded deed is found, after grantor’s decease, in a safety deposit box to which the grantee had a right of access as a joint lessee thereof with such grantor, this of itself will not sustain a finding that the deed was delivered when the grantor retained control of the property, collected the rents, made repairs and paid taxes thereon as he did before the date of the purported delivery. In the instant case, it was shown that the decedent had executed a quitclaim deed purporting to convey realty to the joint lessee with the grantor of a safe-deposit box, in which the deed was found, unrecorded, after the grantor’s death. Records maintained by the lessor of the safe-deposit box did not disclose a visit to the box from the date of execution of the deed to the time of decedent’s death. Under these circumstances, it was held proper to decree cancelation of the deed in favor of an heir of the grantor.

Citing in support thereof, 145 Neb. 763.

The case of McDevitt v. Morrow, 57 Abs 281, being one decided by the Court of Appeals of this County, is cited by both parties.

It will be noted that in that case the plaintiff charged that the defendant procured the execution and delivery of the deed without his understanding the nature and effect thereof, which seems to be an admission of delivery.

The court cites with approval Goodhue v. Goodhue, 15 O. D., 635:

The grantor must part with right of control and right of recall of the deed.

They further cite, at page 286:

It should be noted that the test here is not whether the grantor had the opportunity to and could have taken the deed, destroyed it, or otherwise appropriated it, after its execution or indeed, whether the defendant would have interposed to prevent it but whether or not he had the right under the facts attending so to do.

It should also be noted that in that case the box in which the deed was deposited stood in the name of the daughter, with the father as deputy, not in the joint names of the two. The deed also was recorded and at page 288, the Court says: “The record of a deed is prima facie evidence of its delivery.” We do not believe this case decisive of the case at issue here because of the difference in the facts.

In the matter of the Estate of McKitterick, 94 Oh Ap 373, Syllabi 1 and 2 announce the law to. be:

No particular form or ceremony is essential in the delivery of a deed; delivery may be made by words and acts or either, if accompanied with the intention that they shall have that effect.

A deed is not rendered inoperative because the grantor retains possession of the property and the deed during his life where a life estate is reserved in the deed.

It will be noted, however, in this case the deed was made by a father and mother to a son, who occupied and cultivated the farm covered by the deed on equal shares and reserved to the father and mother a life estate in the premises.

In the case at bar no life estate was involved, and in the MeKitteriek case there was that which does not appear in this case, positive testimony as to statements by the decedent that he intended to transfer the title to the son.

In Kniebbe v. Wade, 53 O. O. 175, affirmed in 161 Oh St 291, it was held that the mere fact that the wife had possession of the husband’s unrecorded deeds after his death did not constitute delivery in order to pass title against the legal heir, where there was no intention to make the deeds presently operative. This was a case of mutual deeds between husband and wife, with the understanding that the survivor take the property. No such agreement appears in the case at bar.

In Bolles v. The Toledo Trust Company, 132 Oh St 21, the Supreme Court held that:

The essentials of a valid gift inter vivos are (1) an intention on the part of the donor to transfer the title and right of possession of the particular property to the donee then and there and (2), in pursuance of such intention, a delivery by the donor to the donee of the subject-matter of the gift to the extent practicable or possible, considering its nature, with relinquishment, of ownership, dominion and control over it.

To support such a gift, clear and convincing evidence is required.

While that case • involved securities and not realty, Zimmerman, J., on page 27 of the opinion called attention to 45 Oh St 462, in which it was held:

Gifts inter vivos, like gifts causa mortis, are watched with caution by the courts, and to support them clear and convincing evidence is required.

And on page 30:

Certain undisputed evidence in this case is indicative that there was no such delivery, including surrender of dominions, as the law demands. Among the indicia are the facts that the securities were contained in a box to which George A. Bolles had free access and to which he made frequent visits; that they were kept and found in a folder bearing his name or initials; that they stood in his name without endorsement or assignment; that he exercised incidents of ownership in the manipulation of certain of the securities at different periods and that he collected the dividends and interest therefrom and deposited the same to his individual account in the bank.

In 25 Oh Ap 523, Vale v. Stephens, the Court held:

Since a conveyance is the medium by which property is transferred from grantor, there is no transfer or transmission of ownership without mutual intention of transfer and transmission of property with purpose of change in ownership.

It is urged in this case that because the deed was in the handwriting of the husband and the notation on the envelope was in his handwriting there is a strong presumption of delivery. With this we cannot agree. Nor do we believe that the fact that a deed to property unquestionably belonging to Mrs. Ketterer was also in the envelope tend to prove delivery and acceptance of the deed in question.

The fact of lack of ingress and egress to Parcel No. 2, which is not covered by the stipulation, but is referred to in the briefs, we believe merely indicates the reason why George F. Ketterer might have deeded the property to his wife, but we do not believe it is proof of such delivery.

It is urged by counsel of the Julia Ketterer heirs that the maintenance of the property by the payment of taxes and the installation of a furnace does not indicate that George F. Ketterer retained control of the property, but merely that he was discharging his obligation to support his wife. He could have supported her without doing either.

Nor are we impressed by the use of the word “belong” rather than “belonging” and the use of the word “deeds” rather than “deed.” He may have been correct in his choice of words, but neither connotes an intention to part company with the instrument or the land.

It is true that George F. Ketterer had a separate box in the bank, which he could have used, but which he did not use. It is likewise the fact that he was a joint owner of the box in which the deeds were found.

It is the opinion of the Court that the grantee’s heirs have failed to establish by the requisite degree of proof that the grantor delivered, or intended to deliver, the deed to the grantee, or that the grantee accepted or even had knowledge of the execution of the deed, and that therefore the real estate sought to be sold in this action was the real estate of George F. Ketterer.

The prayer of the petition is denied and entry may be drafted in accordance herewith.


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

text:
    WHITE, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5515.
    Decided March 13, 1957.
    Merrill D. Brothers, Columbus, for plaintiff-appellant.
    William Saxbe, Atty. Geni., Daniel Mann, Jr., Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By MILLER. J.

This is a law appeal from a judgment of the Common Pleas Court determining that the plaintiff-appellant was not entitled to participate in the benefits accorded to injured workmen under the Workmen’s Compensation Act,

The record reveals that on November 10, 1952, the plaintiff, Robert White, suffered a subarachnoid hemorrhage, which is commonly known as brain hemorrhage, while engaged in his regular employment as a Parker of automobiles in the employer’s garage; that shortly before becoming ill he had parked a Cadillac automobile in a small stall on the third floor of said garage; that because of certain conditions existing at that time it was more difficult than usual to park the car, to wit: the place was not as well lighted as it ordinarily was, one of the overhead lights having gone out thus requiring the use of the headlights of the car the plaintiff was parking. The plaintiff testified that it steered hard and he was required to back into an empty space on his right side; that in order to do this he was required to keep one foot on the brake on the left side and lean over to the right side as far as possible, keeping a hand on the steering wheel, and that he also had to twist his body and head to the rear in order to see the parking space and to see that no damage was done to the car he was parking and other cars in the garage. He said that this required a greater effort on his part and while he was so acting he noticed a feeling like he had pulled a ligament or something; that after he had completed the task of parking the car he suddenly developed a generalized headache and buzzing in his ears, and tingling in his hands and heavy perspiration.

Although there was a conflict in the evidence, medical testimony was produced to the effect that the “activity” in which the plaintiff had been engaged so increased the blood pressure within the arteries of the brain as to cause the hemorrhage. The trial court in its opinion stated that “while the evidence does show that such mishap occurred ‘in the course of’ his employment, such mishap did not arise out of his employment in the sense that the employment was not the proximate cause.”

The decision of the trial court was rendered on December 30, 1955, at which time, because of the decision in the case of Malone v. Industrial Commission, 140 Oh St 292, and McNees v. Cincinnati St. Ry. Co., 84 Oh Ap 499, 152 Oh St 269, it was not clear whether or not a compensable accidental injury must be acquired through accidental means. It appears that in order to clarify this situation the Supreme Court admitted the case of Dripps v. Industrial Commission, 165 Oh St 401, and decided July 5, 1956, which we think is dispositive of the issue raised in this-case. The syllabus in the Dripps case provides:

“1. The term, ‘injury,’ as used in the Ohio Workmen’s Compensation Act, comprehends a physical or traumatic damage or harm accidental in character and as a result of external and accidental means in the sense of being the result of a sudden mishap, occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.
“2. The fact that a workman is injured by exerting more effort or being subjected to a greater strain than is customary in the performance of his work is not in and of itself sufficient to entitle such workman to participate in the State Insurance Fund; and before such participation may be had it must appear that such increased effort or strain was occasioned by some sudden mishap or unusual event.”

In the cited case the claimant’s job was to hold a taut wire in connection with a power operated boom. For a period of several weeks prior to the date of the alleged injury, a defect in the equipment being used in claimant’s place of employment required greater exertion in the performance of his duty. On the day of the alleged injury, while Mr. Dripps was exerting such effort, he suddenly felt a pain in his arm. In denying the claim on the basis of failure to show that an accidental injury had occurred, the court said at pages 408 and 409:

“It is clear that under Ohio law a workman is not entitled to workmen’s compensation for every sudden disability with which he is seized while engaged in the performance of his duties for his employer. Nelson v. Industrial Commission, 150 Oh St 1, 80 N. E. (2d), 430. For an employee to receive compensation for an injury arising at a time when he was performing his duties as an employee, he must show that such injury is physical or traumatic in character, that it arouse suddenly and was not intentionally self-inflicted, and that it resulted by external means from some specific event or mishap occurring suddenly and unexpectedly and not in the usual course of events. Since it is not the act of the workman but rather the sudden mishap or event which controls the right to compensation, such event or mishap may well occur as a result of and while such employee is performing a customary and intentional act which comes to an unexpected and unintended result. However, the mere exertion of a greater effort than is ordinarily used or being subjected to some extraordinary strain is not in and of itself sufficient to give rise to a right to compensation; to warrant compensation the need for such strain or effort must be shown to have resulted from some sudden, unusual and unexpected occurrence or some sudden specific mishap or event. In other words, for an injury to be compensable under the Workmen’s Compensation Act, it must be physical or traumatic in character and a result of external and accidental means occurring at a time when the employee was in the course of his employment.”
“* * * While performing his usual duties, claimant felt this sudden tingling in his arm which is stipulated to be ‘a strain in the left arm which has been determined to be a traumatic disturbance of the brachial plexis and further described as a sensory neuritis and impaired sensation involving the median nerve.’ The mere sudden appearance of a disability during the course of his employment is insufficient to entitle a workman to participate in the State Insurance Fund; such injury must have been preceded by some sudden mishap, external in character, resulting in the disability. No such mishap was present in this case.”

In the case at bar just as in the Dripps case, supra, there is not a scintilla of evidence of an accidental injury by external means resulting from some specific event or mishap occurring suddenly or unexpectedly and which was not in the usual course of events.

This court in a recent decision entered on March 16, 1956, in the case of Jordon v. Ternstedt, 74 Abs 207, also held that in order for an injury to be compensable under the act it must be acquired through external and accidental means in addition to the other requirements.

In the case of Heath v. Standard Oil Co., 68 Abs 571, this court also affirmed a judgment in behalf of the employer, saying at page 576,

“There is no doubt that the plaintiff in moving these barrels of oil through the. lube room and onto the lift was regularly and ordinarily subjected to the necessity of heavy lifting or moving but by the authorities, as we interpret them, if this exertion brought about his heart condition, he may not recover.”

See also Artis v. The Goodyear Tire & Rubber Co., 165 Oh St 412, wherein a judgment for the employee was reversed and final judgment rendered for the employer for the reason that the injury was not caused by a sudden mishap or accidental means.

Because of these recent decisions we deem it not necessary or pertinent to review the earlier cases by our Supreme Court touching upon this question.

We find no error in the record and the judgment will be affirmed!

PETREE, PJ, BRYANT, J, concur.

HEARING ON MOTION

OPINION

By MILLER, J.

This is a motion to certify the record for the reason that the decision is in conflict with the case of Tinker v. Firestone Tire and Rubber Co., 19 Abs 227.

We recognize the conflict but since the decision in the cited case the Supreme Court has announced the rule of law applicable in Dripps v. Industrial Commission, 165 Oh St 407, 60 O. O. 55, and upon which this court relied. See also Artis v. Goodyear Tire & Rubber Co., 165 Oh St 412, 60 O. O. 57. After the Supreme Court has established the rule of law, any such conflict with a decision of another Court of Appeals is of no consequence. Whipp v. Industrial Commission, 136 Oh St 531, 17 O. O. 162; Matthews v. Russell, 61 Abs 441; Rospert v. Old Fort Mills, Inc., 81 Oh Ap 241, 37 O. O. 72.

The motion will be overruled.

PETREE, PJ, BRYANT, J, concur.


author: By GRIFFITH, J.

text:
    RIDER, Plaintiff-Appellant, v. RIDER, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3891.
    Decided April 10, 1957.
    Eugene Fox, Youngstown, for plaintiff-appellant.
    Robert Weimer, Youngstown, for defendant-appellee.
   OPINION

By GRIFFITH, J.

On June 28, 1954, Audrey Rider filed a petition in the Court of Common Pleas of Mahoning County against his wife, Elsin Kaye Rider, praying for divorce and custody of their twenty-one month old child, Diane Shiela. Service was had by publication. Divorce was granted December 2, 1954, and the court awarded custody of the child as disclosed by the following words in the journal entry:—

“The plaintiff now having the custody of said minor child, it is hereby ordered that said custody shall continue until such time as the court has a full hearing on the motion of the defendant for the custody of said minor child.”

On August 8, 1956, motion of the defendant for change of custody was filed. Later hearing was had on this motion. The hearing commenced on August 27, 1956, and concluded on the 28th. Eleven witnesses appeared and testified and twenty-seven exhibits were admitted in evidence.

There is before us a complete transcript of the hearing on this motion to change custody and it is filed as a bill of exceptions.

The transcript reveals that the hearing was had before the Hon. Joseph N. Higley, Jr., Referee.

On September 10, 1956, a journal was filed ordering a change of custody to the mother, signed by the judge of the Common Pleas Court, Division of Domestic Relations, and approved by all counsel.

This order of the change of custody is the basis of this appeal, and we go no farther back than passing on the validity of this custody order.

The bill of exceptions comprising 200 pages, reveals that the witnesses appeared and testified before the referee and not before the judge.

Under the chapter of common pleas court trial procedure we have §2315.26 R. C., which provides:—

“Any of the issues in an action or proceeding may be referred to a referee by the court, or a judge thereof in vacation, upon the written consent of the parties, or upon their oral consent in court entered upon the journal.”

Also see §§2311.04, 2315.26, 2315.27, 2315.30, 2315.31, 2315.32, 2315.33 and 2315.28 R. C.

Under the chapter of divorce and alimony we have §3105.10 R. C., which provides in mandatory terms in part as follows:—

“The court of common pleas shall hear any of the causes for didivorce charged in the petition * *

In the recent case of Perry v. Perry, 100 Oh Ap 15 (1955), the court of appeals of the Fourth District held:—

“In the hearing of a divorce case, the judge must personally hear and determine the cause, and no reference to another judge or referee can be allowed, even by consent of both parties.”

In reference to §3105.10 R. C., the Supreme Court had this to say on page 541 of 118 Oh St:—

“It is unnecessary to waste words in pointing out the soundness of this provision. Where the continuance of the marriage contract and the custody of children are involved in the controversy, the personal attitude of the parties, their bearing and demeanor, necessarily and rightly guide and influence the judge in his decision. It would be a mistaken public policy which would enable a judge to refer divorce cases in a crowded county, like Hamilton or Cuyahoga, to this, that, or the other nonelective referee, and then approve a typewritten decision, without seeing before him the husband and wife whose relations are at stake. It is because of this fact that it has generally been held that reference in divorce cases will not be allowed, even by consent of both parties.”

It has been authoritatively determined that in the trial of a divorce proceeding in Ohio the judge must personally hear and determine the cause, and cannot refer the issues of fact and law to a referee for finding and decision.

We believe that the command embraced in §3195.10 R. C., reaches beyond “hearing any of the causes for divorce” and includes hearing evidence as to the custody of children.

The hearing on August 27th and 28th before the referee is a nullity, and any orders made as a result of such hearing can have no binding force as to the custody of this minor child.

Wherefore the judgment of the Court of Common Pleas, Division of Domestic Relations, is reversed, and the cause is remanded for the purpose only of having the court consider the single question of care, custody and control of the minor child of the parties.

Judgment reversed and cause remanded.

PHILLIPS, J, concurs.

NICHOLS, J, dissents.


author: By HORNBECK, J.:

text:
    PIQUA (City), Plaintiff-Appellee, v. COLLETT, Sr., Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 509.
    Decided November 8, 1956.
    R. K. Wilson, Piqua, for plaintiff-appellee.
    Forrest L. Blankenship, Troy, for defendant-appellant.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a conviction and sentence of defendant-appellant of a charge of operating a motor vehicle on a public street in the City of Piqua while under the influence of intoxicating liquor. Seven errors are assigned, which we set out as we consider and discuss them.

1. The action of the trial court is overruling defendant’s motion for his dismissal for the reason that he was arrested without warrant on Sunday, November 6, 1955, for the offense with which he is charged, which is not treason, felony or breach of the peace.

In support of this assignment, appellant cites and comments upon a case recently decided by this Court, State v. McCoy, 99 Oh Ap 161. Without discussing in detail the facts upon which the McCoy opinion was rendered, suffice to say that in the instant case, although there was an arrest on Sunday, there also was an affidavit charging the defendant with the offense for which he went to trial, on Monday, November 7, 1955 upon which affidavit warrant was issued, to which the appellant responded, was arraigned and entered his plea of not guilty. This, in our judgment, cured the infirmity, if any, which resulted from the arrest of defendant on Sunday. Because it is not necessary to this decision, we do not discuss whether or not the charge against defendant is based upon a breach of the peace.

2. The second assignment is that the court erred in admitting into evidence, over the objections of defendant, a gun found in defendant’s automobile, because the gun was not connected in any way with the offense with which defendant was charged.

We find no objections interposed by defendant to the admission of this evidence. It is urged that there was prejudicial error in that the court failed to charge any purpose for which the evidence was admitted. Assuming that the court should have charged on the subject, it was not an error of commission not to do so, inasmuch as counsel for appellant did not request such a charge.

3. That the court erred in admitting evidence of alleged acts and conduct of defendant which occurred subsequent to the date of the offense charged and not in any way connected therewith and not relevant to any factual issue.

4. In overruling objection of the defendant to the form and substance of questions put to witnesses for the plaintiff resulting in the admission of improper evidence.

This assignment is argued at length in appellant’s brief and attention specifically directed to rulings of the court, found at certain pages of the record, which are set out.

Practically all of the questions and answers to which objection is interposed were developed on cross-examination of witnesses who, in chief, had testified to the good reputation of defendant for sobriety, peacefulness arid credibility. The questions directed attention to specific acts which, if known to the witnesses, may have affected their opinion. Wide latitude is granted on cross-examination of a witness, Clark v. Stewart, 126 Oh St 263. The acceptance of such testimony is largely within the discretion of the trial judge. Hanoff v. State, 37 Oh St 178; Fabian v. State, 87 Oh St 184. It should be noted that none of this testimony was introduced by the State, in chief, but was developed only on cross-examination of witnesses for the defense. The objections to the questions propounded to the wife of defendant, many of them of like character as were put to the aforementioned witnesses, were based upon the claim in the main that the wife’s testimony was privileged; Record, p. 197. Inasmuch as the defendant elected to place the witness on the stand, the privilege was waived, if the testimony otherwise was privileged. But the subject matter of the evidence did not come within the category of privileged communications.

Specifically, the cross-examination of the witness, Earl Eichelberger, as found at pages 163, 164, 165 and 166, to which objection was interposed, was properly admitted.

No objection was interposed to the testimony of Lewis Beaman at pages 170 and 171. No objection was interposed to the testimony of Rebecca Collett at page 191. The answer at page 192 was not damaging and could not be rebutted. There was no objection to the testimony at page 193. The testimony at pages 194 and 195, cross-examination of defendant’s wife as to some things that may have been said to her respecting her intoxication by some officer, was not proper and should not have been admitted. This was not matter which was subject to impeachment. Morrison v. Cleveland, 17 O. C. C. N. S. 241. The objection of defendant to the question put on cross-examination, page 196, was sustained. The questions to which objections were made, pages 202 and 203, were properly admitted. Testimony at pages 243 and 244, to which objection is now noted, was not objected to when admitted. The testimony of James Rice, Chief of Police of Covington, Ohio, respecting permission which it was claimed he had given to defendant to carry a gun, was improperly admitted. This evidence developed by the testimony of defendant on cross-examination was not the subject of rebuttal.

The fifth assignment is that the verdict of the jury was the result of passion and prejudice against the defendant resulting from improper rulings of the court, and the sixth, the verdict is not sustained by the weight of the evidence and is contrary to law. The seventh is practically the same as the fifth.

With the exception of the errors which- we have heretofore found, there are no others to which any assignment is directed.

Certain questions were put to the defendant whether he had been arrested. Such questions are not proper, but should be coupled with the further element — “and convicted of a criminal offense.” However, no objection was interposed to this testimony.

Upon a careful consideration of the record (which is voluminous) in its entirety, we are of opinion that the errors were not of such consequence as that it may be found that they were prejudicial to the defendant requiring a reversal and a remand for a new trial.

Judgment will be affirmed.

MILLER, PJ, WISEMAN, J, concur.