author: By DEEDS, J.

text:
    CARTER, Plaintiff-Appellant, v. CUMMINS, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5535.
    Decided April 2, 1957.

      Smith, Clark & Holzapfel, John E. Holzapfel, of Counsel, Columbus, for plaintiff-appellant.
    Robins, Metcalf & Alton, Jack R. Alton, of Counsel, Columbus, for defendant-appellee.
    (HORNBECK, PJ, of the Second District, FESS and DEEDS, JJ, of the Sixth District, sitting by designation in the Tenth District.)
   OPINION

By DEEDS, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Franklin County entered upon the verdict of a jury in favor of defendant-appellee.

The parties will be referred to herein as plaintiff and defendant respectively, as they appeared in the Court of Common Pleas.

Plaintiff has presented assignments of error as follows:

“1. Said Court erred in overruling the motion of appellant for a new trial.
“2. Said Court erred in its charge to the jury on the trial of such action.
“3. Said Court erred in giving the jury before argument the written instructions so presented and requested by appellee and in refusing to give the written instructions requested by the plaintiff-appellant.
“4. Said Court erred in the rejection of evidence offered by the appellant.
“5. The judgment rendered is against the manifest weight of the evidence.
“6. The verdict is contrary to law and the evidence.
“7. For other errors of law appearing during the progress of the trial and apparent on the face of the record.”

The action was commenced by the plaintiff to recover damages for claimed personal injuries as the result of an automobile collision, occurring near the intersection of North High Street and New England Street in the Village of Worthington, on October 17, 1953. The plaintiff’s amended petition charged negligence against defendant as follows:

“1. Defendant did not keep a lookout ahead.
“2. Defendant failed to yield the right-of-way to plaintiff, in that the defendant entered said highway from said private driveway, striking the vehicle being operated by the plaintiff in said public street.”

The answer of the defendant, omitting the prayer, is as follows:

“Now comes the defendant, Charles J. Cummins, and for his answer to the petition of the plaintiff filed herein, denies each and every allegation therein contained not herein specifically admitted to be true.”

The evidence in the record discloses that plaintiff was operating an automobile in a westerly direction on New England Street at a rate of speed of about 15 miles an hour; that when plaintiff’s automobile had reached a point in said street not more than about 25 feet from the intersection at High Street, the defendant operated his automobile at about 5 miles an hour in a northerly direction, from a private driveway of a gasoline service station located on the southeasterly corner of the street intersection, into collision with the left-hand side of plaintiff’s automobile.

The evidence discloses further that the intersection of High and New England Streets was equipped with electric-controlled traffic signals; that it was a bright, clear day and there were no obstructions to the view of either driver, although neither driver saw the automobile of the other until almost the instant of the impact.

It was admitted by the defendant in his testimony on the trial of the case in the Court of Common Pleas that defendant operated his automobile into the northerly portion of New England Street where the collision occurred. There is also testimony by the plaintiff that immediately following the collision she operated her automobile from the center of New England Street and that she was watching the traffic signals at High Street as her automobile approached the intersection and that she did not see defendant’s automobile until it was about to collide with plaintiff’s automobile.

The principal errors urged on this appeal consist of failure to charge the jury as requested by plaintiff in advance of the argument of counsel, the giving of certain instructions as requested by defendant and also the general charge of the court to the jury.

Plaintiff requested the court to instruct the jury in advance of the argument of counsel:

SPECIAL INSTRUCTION.

“I charge you Ladies and Gentlemen of the Jury that the plaintiff, Juanita Carter had the right to assume the observance of the law and the exercise of ordinary care by the defendant, Charles J. Cummins, and action by Juanita Carter in accordance with such assumption in the absence of notice or knowledge to the contrary is not negligence.”

We are in accord with the ruling of the trial court in refusing to give the foregoing instruction for the reason that such instruction was an abstract statement of law, incomplete when considered in relation to issues and evidence and the instruction was therefore refused without prejudice to the plaintiff.

At the request of counsel for the defendant, the trial court instructed the jury in advance of the argument of counsel:

SPECIAL INSTRUCTION NO. 1.

“I charge you Members of the Jury, that if you find the plaintiff, Juanita Carter, as she was proceeding west on New England Street did not use her senses of sight or such care for her own safety as a reasonably prudent person would have done under the same or similar circumstances, then the plaintiff, Juanita Carter, was negligent, and if you further find that the plaintiff’s own negligence directly caused or contributed in the slightest degree to cause the injuries and damages complained of, your verdict must be for the defendant.”

SPECIAL INSTRUCTION NO. 3.

“I charge you, Members of the Jury, that before you can return a verdict in favor of the plaintiff, you must find that the negligence of the defendant was the proximate cause of the injuries and damages alleged by the plaintiff.
“If you find that the negligence of the defendant was a remote cause and not the proximate cause of said injuries and damages, then your verdict must be for the defendant.
“ ‘Proximate cause’ means the nearest cause, not necessarily nearest in point of time or space, but nearest in causation — the direct cause— that cause without the existence of which the injuries would not have occurred. The proximate cause of a result is that which, in a natural and continuous sequence, unbroken by any new cause, produces an event, and without which the event would not have occurred.”

In the general charge of the court, the jury was instructed in reference to the defense of contributory negligence, in part as follows:

“Now you will note that I have used the term ‘contributory negligence.’ By contributory negligence is meant that negligence of the plaintiff which combines with or unites with proximately and directly with the negligence of the defendant, to produce the occurrence and the act and things complained of, to wit, the injuries complained of in this case. If, the negligence of the plaintiff directly and proximately contributed, with the negligence of the defendant, to produce the occurrence and resulting injuries, the plaintiff’s right to recovery would be defeated, because the law, as far as this State is concerned, does not undertake to compare negligence of the plaintiff and negligence of the defendant. I further instruct you that if, in the introduction of evidence on behalf of the plaintiff, there arose an inference that the plaintiff was negligent, which in any degree directly and proximately contributed to produce the occurrence and resulting injuries to her, if any, then it is the duty of the plaintiff to counterbalance that inference and her failure to do so would defeat her right to recovery.”

We are impressed by a consideration of all the evidence in the record that there was slight justification or basis in the evidence for a charge or instructions to the jury on the defense of contributory negligence.

In view, however, of the testimony to the effect that the plaintiff did not see defendant’s automobile until- almost the instant of the collision and also the testimony of the plaintiff that she operated her automobile from the center of the street immediately following the collision, we are unable to say that the issue was not raised by the evidence and we do not find that it was error for the trial court to charge the jury respecting that defense.

We do not approve defendant’s special instruction Number 1, quoted above, as given by the trial court. Laws v. Vance, 100 Oh Ap 255, 136 N. E. 2nd, 134.

Nevertheless, for reasons which will appear later in this opinion, we do not find that the giving of the instruction would, standing alone, constitute error which would justify a reversal of the judgment.

We do find, however, that the instructions of the trial court in reference to the defense of contributory negligence were incomplete, in that the court failed in its general charge to place the burden of proof respecting that issue upon the defendant.

We consider that the established rule of law applicable to the defense of contributory negligence under the circumstances as presented by the record before us is stated in the opinion in Tresize v. Ashdown, 118 Oh St 307, 160 N. E. 898, 58 A. L. R., 1476, at p. 316 of 118 Oh St.:

“It has long been established in this state that, if the plaintiff’s evidence shows an injury by defendant’s negligence, and does not raise an implication that his own negligence contributed thereto, the burden of proving such contributory negligence as will defeat a recovery rests upon the defendant, and that burden must be sustained by a preponderance of the evidence. However, if plaintiff’s own testimony raises a presumption of contributory negligence upon his part, the burden of proof does not shift, and he is not required to remove such presumption by a preponderance of the evidence, but is only required to furnish such proof as is sufficient merely to equal or counterbalance the evidence tending to show contributory negligence on his part. B. & O. Rd. Co. v. Whitacre, 35 Oh St 627; Columbus Ry. Co. v. Ritter, 67 Oh St 53, 65 N. E., 613; Klunk v. Hocking Valley Rd. Co., 74 Oh St 125; 77 N. E. 752; Maddex v. Columber, 114 Oh St 178, 151 N. E., 56; Toledo, St. L. & W. R. R. v. Star Flouring Mills Co., 146 F. 953, 77 C. C. A. 203.”

See 2nd paragraph of syllabus in The Rayland Coal Company v. McFadden, Admr., 90 Oh St 183, 107 N. E. 330.

See also Bradley v. The Cleveland Ry. Co., 112 Oh St 35, at p. 38.

Also applicable in our view is the syllabus in Smith v. Lopa, 123 Oh St 213, 174 N. E. 735:

“Where a plaintiff’s right of action is based upon negligence of the iefendant, and contributory negligence is an issue in the case, it is the duty of the trial judge to charge the jury that, if the evidence offered in support of the plaintiff’s claim gives rise to a reasonable inference or presumption that the plaintiff’s own negligence contributed proximately in the production of the injury which is the basis of his action, then the plaintiff, in order to recover, must as a part of his case in chief produce evidence sufficient to equal or dispel the inference or presumption. But in such case the plaintiff is not obliged to remove the inference or presumption by a preponderance of the evidence. The plaintiff is of course entitled to the benefit of any evidence that may be produced by the defense tending to dispel the inference or presumption that has arisen against the plaintiff from the plaintiff’s own evidence.”

See also Valencic v. The Akron & Barberton Belt Rd. Co., 133 Oh St 287, 13 N. E. 2d, 240.

While not necessary to be determined, we are of the opinion that it is not clear that the two-issue rule would be applicable and would therefore be available to the defendant. Thomas v. Heer et al, 17 Abs 201; Stemper v. Campbell, 155 Oh St 1, 97 N. E. 2nd, 25.

It is our conclusion that the errors in the instructions to the jury were not prejudicial to the rights of the plaintiff for the reason that we are unable to find any substantial evidence of probative value contained in the record, which tends to establish the causal relation between the collision and the injuries which plaintiff contends she sustained as a result of the collision.

There is no evidence in the record that plaintiff was wrenched or sprained at the instant of the collision; nor is there any evidence that plaintiff was struck a blow or that any part of her anatomy was brought into collision with any part of the automobile or any other physical object.

Neither is there any testimony by the plaintiff or any other evidence which tends to show that plaintiff was swayed or moved from her position in the automobile as a result of the impact or that any physical contact was made by plaintiff, which could result in physical trauma or injury.

In other words, there is no factual evidence tending to establish that plaintiff sustained trauma or physical injury as a direct result of the collision.

We do find medical testimony in the record tending to show that plaintiff has suffered pain and disability, but in our view that testimony is not available for the purpose of showing that plaintiff sustained physical trauma or injury as a direct result of the collision.

In our view, it was incumbent upon the plaintiff to testify or produce evidence which would tend to prove the manner in which she was wrenched or sprained and if she was thrown or moved from her position by the impact and sustained external injury by a blow or collision with some object, those facts should have been produced in the evidence.

It is our view, therefore, that the question of how or in what manner plaintiff sustained external injury or physical trauma is left to surmise and conjecture and that therefore there is no evidence tending to establish a direct causal connection between the collision and plaintiff’s injuries.

Finding no error prejudicial to plaintiff, the judgment of the Court of Common Pleas is affirmed.

HORNEECK, PJ, FESS, J, concur.


source: Caselaw Access Project

author: By EARHART, J.

license: Public Domain

text:
    JUSTICE, Admx., Plaintiff, v. ROSE, Sheriff et, Defendants.
    Common Pleas Court, Lawrence County.
    No. 34627.
    Decided January 11, 1956.
    Henry & Burwell, Ironton, for plaintiff.
    Andrews, Edwards & Klein, Harold D. Spears, Ironton, for defendants.
   OPINION

By EARHART, J.

This case is before the Court on the second amended petition of the plaintiff and a demurrer filed by the Sheriff of Lawrence County Carl E. Rose, the defendant herein to the plaintiff’s second amended petition. The petition consists of three causes of action, however, for the purposes of this demurrer, the Court is only concerned with the first cause of action.

The case involves the death of Clair Justice, a prisoner who was confined in the Lawrence County Jail. The plaintiff alleges that an affidavit was filed in the Probate Court of Lawrence County, Ohio, charging the decedent Clair Justice as being mentally ill and in need of treatment; that a warrant of detention was issued out of the Probate Court of said county for his apprehension and detention and that on the 4th day of June, 1955, the Sheriff of Lawrence County by one or more of his duly authorized deputies, acting in their official capacity, did apprehend and take into custody the said decedent Clair Justice, and imprisoned him in the Lawrence County Jail on the first floor of said jail with convicted criminals and other persons charged with criminal acts.

The plaintiff alleges that the decedent Clair Justice while confined on the first floor of the county jail was beaten and injured, receiving a bruise to the back of the skull and two fractures to the front of the skull, injuries to the eye, bruises, contusions, and abrasions about the arms and that as a result of said injuries, the decedent on the 8th day of June, 1955 died in the Lawrence County General Hospital at Ironton, Ohio.

The plaintiff alleges that the defendant Carl E. Rose, Sheriff of Lawrence County was negligent in his duty in that he failed to keep the decedent safely by permitting Carl Baldwin (another prisoner) to inflict injuries to the decedent as heretofore set out. All of which occurred while the decedent was confined in the county jail. Plaintiff alleges that the defendant Carl E. Rose as Sheriff of Lawrence County was further negligent in that he failed to place the decedent in a place provided by the county Commissioners of Lawrence County, Ohio, for mental patients and persons in his custody in said condition; that the defendant Carl E. Rose was negligent in failing to furnish reasonable protection to the decedent while the decedent was in his care, custody and control, and that the said defendant Carl E. Rose as Sheriff of Lawrence County by said acts has failed to faithfully perform the duties of his office and that as a direct and proximate result of the negligence and misconduct as hereinabove set forth, the plaintiff has been damaged in the sum of $50,000.00.

To this second amended petition the defendant Carl E. Rose has filed a demurrer claiming that the second amended petition fails to state a cause of action. Briefly stated, the position of the • defendant is that his duty is a duty to exercise ordinary care under all the circumstances for the safety of a prisoner committed to his custody; that the acts which were committed against the decedent which resulted in his death were according to the petition administered by a fellow prisoner and that he could not be held on the theory of negligence where a third party has committed a criminal act which breaks the chain of causation between the negligence of the Sheriff and the wounds received by the decedent.

It is the postion of the plaintiff that the petition does state a cause of action for the reason that §341.01 R. C., provides that the Sheriff has the duty to keep safely persons confined in the County Jail; that the negligence of the defendant Carl E. Rose as Sheriff of Lawrence County flows from a violation of this Statute and that the decedent Clair Justice not having been kept safely by the Sheriff, the Sheriff was negligent and therefore liable for the death of the plaintiff’s decedent.

The question presented by this case is whether or not there is a cause of action against the Sheriff of Lawrence County, and whether or not §341.01 R. C., makes the Sheriff a guarantor of the physical safety of prisoners confined to a jail.

Sec. 341.01 R. C„, provides as follows:

“The Sheriff shall have charge of the County Jail and all persons confined therein. He shall keep such person safely, attend to the jail, and govern and regulate the jail according to the rules and regulations prescribed by the Court of Common Pleas.”

Sec. 341.09 R. C., provides as follows:

“When the construction of a county jail will permit, the separation of prisoners shall be maintained and no prisoners in such jail, awaiting trial, shall be placed or allowed to remain in the same cell or room with another prisoner.
“Judges of the Court of Common Pleas in prescribing rules for the government of county jails as provided by §341.06 R. C., shall provide for the enforcement of this section.”

The petition of the plaintiff summarized alleges that the decedent Clair Justice was placed in the custody of the Sheriff and placed in the county jail and met his death as a result of an assault by a third party by the name of Carl Baldwin. It is not alleged that Carl Baldwin is a Deputy Sheriff or has any official capacity with the Sheriff’s Department. In this connection, 39 O. Jur., page 500, reads as follows:

“Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, any more than a particular act by this or that individual.”

In 41 American Jurisprudence, page 894 appears the following:

“While the primary duty of the custodian is to the state, to keep a prisoner safe may be said to be paramount, to that of affording the prisoners life and health, yet the former duty is usually said to be more compulsory than the latter, but the two duties have been said to be coextensive. The general rule gathered from the cases which have considered the question is that in order to hold an officer in charge of a jail or prison liable for an injury inflicted upon one prisoner by another prisoner, there must be knowledge on the part of such officer that such injuries will be inflicted, or good reason to anticipate danger thereof, and negligence in failing to prevent the injury.”
“It is essential to any recovery by the prisoner that he allege that the injuries did not result as a consequence of his own wrongful acts, in view of the presumption of due performance of official duty by the custodian. A jailer must exercise reasonable and ordinary care and diligence to prevent unlawful injury to a prisoner placed in his custody, but he cannot be charged with negligence in failing to prevent what he could not reasonably anticipate.”

In 72 Corpus Juris Secundum, page 866, appears the following:

“While a breach of a prison or jail officials duty to use reasonable care to prevent injuries to a prisoner by his fellow prisoners may subject him to liability for the injuries proximately caused thereby, he is not liable for an injury for which his act or neglect was not the proximate cause, or where he had no reason to anticipate the injury.”

It is my opinion that the second amended petition having alleged an intervening criminal act on the part of a third party, the Sheriff could not be held liable under the common law rules of negligence. The liability of the Sheriff under these circumstances, if any, would be under §341.01 R. C., quoted above, and it is the claim of the plaintiff that the liability of the Sheriff flows out of the duty placed upon the Sheriff to keep prisoners committed to his custody safely.

I find no Ohio cases on this point. The plaintiff has cited in his brief the case of the - State of Ohio v. Harland, 51 O. O. 448, also reported in 94 Oh Ap 293. In the Harland case, the Court held in essence that a Sheriff could not be held criminally liable for the acts or misconduct of his deputies. The case now under consideration in no way involves criminal liability of the Sheriff and is not in point in so far as the question presented by this case is concerned. I am unable to find any other reported cases in Ohio which deal with the specific question presented by this case.

The plaintiff has cited certain cases in Kentucky which deal with the duties of a jailer with respect to the care and safety of the prisoners. The first case referred to in the plaintiff’s brief is that of Ratliff v. Stanley, 224 Kentucky, page 819, also reported in 7 Southwestern, the Second, Page 230 where a prisoner was assaulted while confined in jail and the Court held that the jailer had a duty to exercise ordinary care to prevent unlawful injuries to a prisoner placed in his custody.

In Syllabus 4 of said case appears the following:

“The law imposes duty on jailer to exercise reasonable and ordinary care and diligence to prevent unlawful injury to prisoner placed in his custody, though jailer is not charged with negligence in failing to prevent what he could not reasonably anticipate.”

It should be noted in connection with these cases cited from the State of Kentucky that the Statutes of Kentucky provide for the office of jailer which is separate and distinct from the office of Sheriff. The jailer is elected by a vote of the people and the duties of the jailer are specifically provided for by Statute, and the cases cited refer to the duty owed by a jailer to the prisoners confined in their jails and involve the interpretation of a Statute which is not comparable to the duties provided by Ohio Statutes for a Sheriff.

There are two lines of authority as to the duties of a Sheriff towards a prisoner confined in his jail where he is assaulted or injured by a third party. In 14 A. L. R., the Second, Page 354, I note the following:

“The cases are not in accord as to what duty, if any, the Sheriff or other officer owes to the prisoner, and if a duty is owed to the convict, the extent thereof. Generally it is held that the Sheriff has the obligation to keep the prisoner safely, but some courts hold that this duty is to the public only while other cases state that the obligation is to the prisoner and also includes the obligation to accord him humane and decent treatment, and the violation of which the officer is liable in damages to the party injured.
“The majority of courts hold that the Sheriff or other officer, owes a duty to the prisoner to keep him safely and to protect him from unnecessary harm and it has also been held that the officer must exercise reasonable and ordinary care for the life and health of the prisoner. This general principle has been expressly affirmed or impliedly recognized (by holding such officers liable for injury to prisoners under the particular circumstances) in many cases.”

There are a large number of jurisdictions which take the contrary view and hold that a Statute which provides that a Sheriff must keep a prisoner safely has reference to the protection of the public and that the duty of the Sheriff is to protect the public by not permitting prisoners to escape and do harm to members of the public.

In Stinnett v. City of Sherman, a Texas case reported in 65 S. W. page 846, where the City of Sherman had an Ordinance requiring the Chief of Police to “safely keep all prisoners confined therein” and where an insane prisoner stabbed another prisoner, the Court held that no cause of action accrued to the victim, as the Ordinance was passed for the protection of the public, and that the inmate who was stabbed had no cause of action under the Ordinance.

There are many cases which hold that a Sheriff is liable to a prisoner where he permits a “Kangeroo Court” to be operated in his jail and where he allows the prisoners to punish other prisoners for a breach of prison discipline or for a violation of the laws of the “Kangeroo Court.” The theory on which the Sheriff is held in these cases is that he knows of the operation of such a court and knows that the penalties inflicted by the other prisoners consist of physical violence and that having such knowledge and permitting such a court to operate, he is held liable for an assault upon a prisoner in his custody.

It seems to be the general rule that in order to hold a Sheriff or jailer for assault of one prisoner by another, the Sheriff or jailer must have actual knowledge of the dangerous character of the prisoner committing the assault.

It is my opinion that §341.01 R. C.„ was passed as a measure to protect the public and that the provision that the Sheriff must safely keep a prisoner was intended by the Legislature to protect the public and to place a duty upon the Sheriff to keep prisoners under his control from being allowed outside the confines of the jail where harm might be done to some other citizen, but in no way changes the common law rule requiring only that a Sheriff exercise ordinary care for the protection and safety of prisoners confined to bis jail. To hold otherwise would be to put an impossible burden upon the Sheriff. To hold that §341.01 St. c., makes the Sheriff a guarantor of the safety of the prisoner would make him liable for an assault by one prisoner on another and it is my opinion that the Legislature did not intend to place this burden upon a Sheriff.

The Lawrence County Jail, except for plumbing and heating facilities is roughly comparable to the “Black Hole of Calcutta.” For many years each grand jury has recommended the construction of a new jail to replace this architectural monstrosity, but to date no new jail has been constructed. The County Commissioners have not enlarged, expanded, or remodeled the jail so that mental prisoners may be separated from other prisoners, no padded cells have been provided. To hold that under §341.01 R. C., the Sheriff is a guarantor of the safety of prisoners under circumstances existing in our county jail would be a preposterous requirement, and one not contemplated by the General Assembly.

I conclude therefore, that a Sheriff has no liability in damages under §341.01 R. C., where a prisoner is assaulted by another prisoner and does not under this Statute become a guarantor of the safety of all prisoners in his custody.

The plaintiff also claims in his petition that the Sheriff failed to confine the decedent in a place provided by the County Commissioners of Lawrence County, Ohio, for the confinement of mental patients. This is a conclusion of law. There is no indication or allegation or no resolution is plead whereby the County Commissioners of this county have ordered insane or mentally ill persons confined in a place separate from other prisoners, and as plead in the petition, this allegation is a conclusion.

For the reason given above, the demurrer to the first cause of action is hereby sustained. The second and third cause of action of said petition are not important in so far as the question presented by this case is concerned. The second and third cause of action refer to the liability of the bondsman of the Sheriff, and of course, if the Sheriff has no liability, neither do the bondsmen.

An entry may be prepared accordingly.


author: By MILLER, PJ.

text:
    MORELLI, Petition, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 5468.
    Decided June 1, 1956.

      Abraham Gertner, Columbus, for petitioner.
    C. William O’Neill, Atty. Geni., John W. Shoemaker, Asst. Atty Geni., Columbus, for respondent, Ralph W. Alvis, Warden, etc.
    (PESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Common Pleas Court dismissing the appellant’s petition for a writ of habeas corpus and remanding him to the custody of the respondent, Warden of the Ohio Penitentiary.

The record discloses that the petitioner was indicted for the offense of assault with intent to rob in violation of §12421 GC, and for maliciously entering a bank with firearms to commit a felony in violation of §12441 GC; that a plea of not guilty was entered and the case came on for hearing; that a jury was impaneled and sworn and the trial proceeded; that on the second day of the trial counsel for the petitioner arose and changed the plea of the petitioner from “not guilty” to “guilty.” The case was then submitted to the jury for a recommendation of mercy under §12441 GC and a verdict was returned extending the same. Sentence was then pronounced in accordance with the statutes involved. Counsel for the appellant urges that the commitment to the custody of the respondent is illegal for the reason that the Court had no jurisdiction to accept the guilty plea since it was made by counsel for the petitioner and not by him personally; that the petitioner is being deprived of his liberty without due process of law under the Fourteenth Amendment to the United States Constitution, and Article I, Section 16, Ohio Constitution. The facts pertinent to the issue presented were stipulated and agreed upon as follows:

“It is stipulated and agreed by and between the parties hereto by their respective counsel that on the trial of the petitioner, John Morelli, before the Court of Common Pleas of Mahoning County, Ohio, for the offenses for which said petitioner is now imprisoned, the petitioner originally entered a plea of not guilty, that in the midst of the trial, petitioner’s attorney arose and asked the court for permission to change the petitioner’s plea from not guilty to guilty, that at no time did the petitioner personally request the court to make such change, that at no time did the petitioner personally plead guilty, that at no time did the court inquire of the petitioner whether he wished to change his plea and at no time did the court ask the petitioner what the petitioner’s plea was subsequent to the statement of the attorney, and that petitioner’s attorney entered a plea of guilty to both indictments.”

It is stated in Corpus Juris Secundum, Section 415. page 635, that it common law an accused was required to plead in person and that when the same is required by statute a personal plea is mandatory. The Ohio statutes are silent as to the manner in which the plea shall be made, although §2943.02 R. C., permits counsel on behalf of the accused to waive the reading of the indictment, thereby recognizing the right of counsel to act for the accused when in his presence. The manner in which a plea may be changed is set forth in §2943.03 R. C., to wit:

“The Court may, for good cause shown, allow a change of plea at any time before the commencement of the trial.”

It would seem to us that representations made to the Court by the defendant’s counsel and in his presence, that it is his desire to change his plea to guilty, would constitute good cause for the Court accepting such a change. The power is a discretionary one and we think that it was properly exercised. We recognize that there is a conflict in the authorities on the question presented, but our examination of the same leads us to the conclusion that the greater weight holds that a plea of guilty when entered by counsel has the same force and effect as a plea personally entered by the accused when the latter is present in court and the circumstances are such as to show clearly that the accused understands what is being done and acquiesces therein. See 22 C. J. S., Section 422, page 652. In U. S. v. Denniston, 89 P. (2d) 696, in discussing a similar question, Justice Chase well states the reasons for the Court’s conclusion, at page 698, to wit:

“But there is a technical objection to the plea itself. It is argued that as it was entered by the attorney and not by the appellant personally it is of no effect. While it is true that in ancient times when the rights of an accused were comparatively few much stress was laid upon the formality of arraignment and plea, especially in felony cases, and plenty of authority may be found to the effect that a plea of guilty at common law had to be made by the accused himself after he had been adequately identified, we are not disposed to subscribe to such rigidity of procedure. The reason for it has disappeared with the acceptance and use of modern methods which preserve the substance of all the rights of an accused person without so much sacrifice of the rights of the public before the alter of mere form. If an indicted person is actually present in open court with his attorney who is competent to represent him and does so under circumstances which fairly show that the attorney speaks for his client who understands what is being done and its import and who acquiesces when the attorney enters a plea of guilty for him, nothing but a slavish adherence to archaism could underlie a holding that the plea was void. When the essential presence of an accused in the court having jurisdiction is a fulfilled condition, there is no express requirement in the federal law that in pleading to an indictment he must actually speak for himself or remain mute in order that a valid plea may be entered. And what was said in Garland v. State of Washington, 232 U. S. 642, 34 S. Ct. 456, 53 L. Ed. 772, in overruling Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. ed. 1097, ss to compliance with ancient formality in respect to arraignment, seems a clear guide to decision on the point now before us. Let the accused be actually present in the court of competent jurisdiction; let the circumstances show clearly that he knew and understood what was being done; let it be made clear that he acquiesced in a plea of guilty then entered for him by his attorney and the plea should have exactly the same force and effect as though he had spoken himself in the words of the attorney. So we hold the plea of guilty valid.”

Certiorari was denied in the foregoing case in 57 S. Ct. 943, 301 U. S. 709. See also, U. S. v. Moe, 105 P. (2d) 144; Brown v. U. S. 182 P. (2d) 933, and Cumberland v. Warden of Maryland Penitentiary, 205 Md. 646. Certiorari denied, 75 S. Ct. 344, 348 U. S. p. 929; People v. Preccia, 134 N. Y. S. (2d) 792. Certiorari denied, 349 U. S. 964.

The question presented is one of first impression in this state, but our views coincide with those pronounced in the foregoing cases; hence, we hold that the trial court properly denied the writ.

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

HORNBECK and PESS, JJ, concur.


author: By PHILLIPS, PJ.

text:
    FAUST, Plaintiff-Appellant, v. CAILOR, Exr. et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3847.
    Decided April 6, 1956.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    Earl H. Cailor for Defendant-Appellee, L. M. Cailor, Youngstown.
   OPINION

By PHILLIPS, PJ.

On March 26, 1955, plaintiff filed an action in the court of common pleas to contest the will of Ralph E. Faust, who died December 22, 1954, which will was probated on January 6, 1955, plaintiff having been barred specifically from participating in decedent’s estate,

Defendant executor was duly served in person. Defendant, Barbara lean Faust, sole heir under the will, was served by publication in the Daily Legal News of Youngstown on August 3, 1955, after allegedly concealing herself to avoid personal service attempted on March 29, 1955. STo service was had upon defendant within six months after the decedent’s will was admitted to probate.

The trial judge overruled defendant-executor’s first motion to dis-niss plaintiff’s action filed on the assigned ground that the trial court rad no jurisdiction over the subject matter of plaintiff’s petition and for want of service of summons upon defendant, Barbara Jean Faust, within six months, and sustained his motion to quash service of summons upon defendant, Barbara Jean Faust, by the following entry:—

“This day this cause comes on for hearing on motion of L. M. Sailor, Executor to quash service, on consideration thereof the court sustains the same. The plaintiff failed,to make personal service or secure service by publication within six months from the date of probate of the will as required by statute. The saving clause statute, §2305.15 R. C. does not apply in this case.”

The trial judge entered judgment accordingly, from which judgment plaintiff appeals to this court on questions of law.

Plaintiff contends that defendant executor voluntarily entered his appearance by filing his first motion without specifically “reserving the appearance of defendant Faust,” whom, he alleges, entered a voluntary appearance, which plaintiff claims is equivalent to service of summons; and that the trial judge erred to her prejudice in not overruling the motion to quash service of summons as defendant Faust was in court.

Sec. 2741.09 R. C-, formerly §12087 GC, provides:—

“An action to contest a will or codicil shall be brought within six months after it has been admitted to probate, but persons under any legal disability may bring such action within six months after such disability is removed. The- rights saved to persons under disability shall not be effective as against a bona fide purchaser for value, a fiduciary who has acted in good faith, or a person delivering or transferring property under authority of a will to an appointed fiduciary or to any other person.”

The provisions of this section of the Revised Code are mandatory.

Sec. 2305.17 R. C., provides:—

“An action is commenced within the meaning of §§2305.03 to 2305.22, inclusive, and §1307.08 R. C., as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor, or otherwise united in interest with him. When service by publication is proper, the action is commenced at the date of the first publication, if it is regularly made.
“Within the meaning of such sections, an attempt to commence an action is equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt is followed by service within sixty days.”

Plaintiff attempted to secure service of summons on Barbara Jean Faust on April 7, 1955, but such attempt was not completed within sixty days thereafter, as the result of which no service was ever made upor defendant., E artara Jean Faust.

In the case of Gravier v. Giuth, Exrx. et al, 163 Oh St 232, which we believe controls in this case, the supreme court said:—

“The provisions of the statutes relative to the right to contest the validity of a will are mandatory, and the enjoyment of the right ie dependent upon compliance with the conditions and limitations thereir contained.
“Under the provisions of §12080 GC, all the devisees, legatees anc heirs of the testator, and other interested persons, including the exeeutoi or administrator, must be made parties to an action to contest a will.
“Where, in an action to contest a will brought by three heirs ai law of the decedent, the petition names as defendants the sole legatee and devisee, the executrix and three other heirs at law but fails to name numerous other heirs at law necessary to the determination of the validity of the will, and no service of process is sought or secured on any of the defendant heirs within six months after the will has been admitted to probate, the addition as plaintiffs of the heirs at law, whe are not included in the petition, and the defendant heirs at law, whe are not served with summons to the action, after the expiration of the statutory period of limitation, does not confer jurisdiction on the courl to hear such contest.”

We find nothing in the record warranting the contention of plaintiff that the executor of decedent’s estate entered appearance for defendant, Barbara Jean Faust.

The judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By ALLEN, Circuit Judge.

text:
    AMERICAN TRANSIT LINES v. SMITH.
    United States Court of Appeals, Sixth Circuit.
    No. 13026.
    Decided July 2, 1957.

      S. Burns Weston, Mark O’Neill, Louis Paisley, Cleveland, on the brief, McConnell, Blackmore, Cory, Burke & Kundtz, Cleveland, for appellant.
    Lawrence E. Stewart, W. Guy Hardy, McDonald, Hopkins, Hood & Hardy, Cleveland, for appellees.
    Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
   OPINION

By ALLEN, Circuit Judge.

This is an appeal from a judgment of the District Court in favor of appellee, plaintiff in a personal injury case which was heard by the court without a jury. Plaintiff was injured on June 22, 1951, while operating his automobile north on West 117th Street in Cleveland, Ohio. He had stopped for a red light at the intersection of West 117th Street with Cooley Avenue. At that intersection one Nick Medovic was operating a tractor trailer also in a northerly direction and he struck plaintiff’s automobile from the rear, inflicting serious personal injury. The negligence of Medovic was conceded by defendant in the trial. The District Court entered judgment in favor of plaintiff.

The sole question is whether the trial court erred in ruling that Medovic was operating the tractor trailer under defendant’s control and direction and that the outfit involved in the collision was being operated for American Transit Lines at the time the accident occurred.

The tractor trailer, which was owned by Medovic, had on each door decals, which were doubly impervious due to the fact that they were varnished. The decals carried the name American Transit Lines and the I. C. C. and P. 17. C. O. permit numbers issued defendant for interstate operation and for operation in Ohio, Indiana, Michigan and other states. Medovic frequently hauled for defendant, including some three trips a month between Hammond, Indiana, and Cleveland, Ohio, where defendant is located. He also, with defendant’s permission, hauled for others. On the day of the accident he had just returned from Hammond, Indiana, to Cleveland, Ohio, having hauled a load for defendant. His truck was empty. At the time of the collision the tractor trailer was being operated in the general direction of defendant’s yard and Medovic had in his possession a delivery receipt and manifest to be delivered to defendant. He also had a receipt to be delivered to Cushman’s, another concern for which he had previously hauled a load from Cleveland to Racine, Wisconsin. Medovic said that he did not have any other load for defendant, explaining “No, I hadn’t contacted American Transit that early in the morning yet.”

The base of operations to which Medovic customarily returned the tractor trailer was defendant’s yard or a lot near his home.

Medovic testified that he was operating under a “trip lease” between himself and defendant covering only the one-way trip from Hammond, Indiana, to the Electro Motive Division of General Motors Corporation, hereinafter called Electro Motive, Cleveland, Ohio. Exhibit C, introduced in evidence, was not the trip lease, if any, actually employed covering this trip. Appellant’s counsel said that Exhibit C “represented” the trip lease. As to defendant it was executed “American Transit Lines by E. Sylvester.” It was not signed by Medovic, but was signed “N. Medovic by E. S.” Defendant admits that “E. S.” stands for E. Sylvester, who signed for defendant. The trip lease is claimed to limit defendant’s liability to the time actually involved in a single trip contracted for between defendant and Medovic “from the point of origin to the destination indicated,” that is, from Hammond, Indiana, to Electro Motive, Cleveland, Ohio. Early on the day of the accident Medovic had delivered defendant’s load to Electro Motive and had been given the delivery receipt, which he was required to turn in to defendant. Defendant claimed that it was not liable for the accident upon the ground that its obligation terminated with the delivery of the load to Electro Motive, which delivery was shortly prior to the collision.

At the time of the accident plaintiff was told by Medovic to get in touch with defendant and that defendant would contact him. A Mr. Tracy, a representative of defendant, did in fact contact plaintiff and called upon him some six times. Tracy advised plaintiff not to sue American Transit Lines because it would be a waste of money.

The trial court found as a fact that by the agreement between defendant and Medovic the tractor trailer was under the direction and control of defendant at all times and that the driver was not permitted to operate the tractor trailer outfit for any other person, firm, or corporation without the express authorization of defendant. The court’s conclusion of law was that the tractor trailer outfit involved in the colisión was being operated for American Transit Lines at the time of the collision.

The findings of fact of the District Court are not to be set aside unless clearly erroneous, Federal Rules of Civil Procedure rule 52, 28 Ü. S. C., and we must give due regard to the opportunity of the trial court to judge of the credibility of the witnesses. If supported by the record the findings are binding on appeal. Reynolds Metals Co. v. Skinner, 6 Cir., 166 F. (2d), 66, certiorari denied 334 U. S., 858, 68 S. Ct., 1528, 92 L. Ed., 1778.

These findings are supported by the record. Medovic was .an evasive witness, as indicated by the District Court. However, he testified in the affirmative in answer to a question whether in his deposition he had not stated that if he hauled for some other company than defendant he always first got defendant’s approval for such haul. He stated in effect at the trial that if defendant did not have a load for Medovic and Medo-vic had secured a load from someone else, defendant would authorize him to “go ahead.” At the trial Medovic qualified his testimony by stating that a lot of times he “didn’t even check with them.” The District Court evidently appraised the credibility of this testimony in light of Medovic’s manifest interest and concluded that the driver’s original story was true. The fact that defendant had exclusive control of Medovic’s vehicle and services when and if his services were needed, was evidence of continual control and supports the finding of the District Court. Under the well-established rule the existence of control is proved, not only by its exercise, but also by the right of exercise.

Defendant put on no other witnesses except Medovic and his testimony was not denied. His original view of his relationship to defendant was that he was American’s “regular man.” This view was recognized by defendant’s negotiations after the accident. Medovic told plaintiff to contact American or Markel, to get in touch with “our insurance company.” This was followed by repeated negotiations between Markel and plaintiff. These facts also, unexplained and undisputed, are evidence of a continuing relationship between Medovic and defendant covering the time of the accident, rather than the ephemeral relationship created by a trip lease.

Defendant’s contentions are based mainly upon the assumed existence of a one-way trip lease between Medovic and defendant. The cases on which defendant relies most strongly are one-way trip lease cases: Costello v. Smith, 2 Cir., 179 F. (2d), 715, 16 A. L. R. (2d), 954; Eckard v. Johnson, 235 N. C., 538, 70 S. E. (2d), 488; Gallagher’s Estate v. Battle, 209 Md., 592, 122 A. (2d), 93; Hall v. Gallagher, Del., 125 A. (2d), 507.

In Costello v. Smith, supra, and Eckard v. Johnson, supra, the trip lease involved contained specific provisions to the effect that liability should terminate upon completion of delivery. The alleged trip’ lease presented in evidence here contains no such provision.

But no valid trip lease was shown to cover- the trip from Hammond to Cleveland. The purported trip lease introduced as being the same type of trip lease as that under which Medovic operated was signed by the same party for both parties. E. Sylvester did not testify, nor did Medovic testify that “E. S.” was his agent. The lease was a lease made by defendant’s agent with defendant’s agent. There being no covering trip lease, the District Court correctly relied upon the arrangement and understanding between the parties which evidenced a continued control and direction of Medovic’s operations by defendant. The cited one-way trip lease cases do not apply.

Whether or not there was a written lease, we think the judgment of the District Court was correct. Under its P. U. C. permit to operate in Ohio, defendant carried liability insurance required by the Ohio Code, which compels a private motor carrier to deposit with the P. U. C. O. a liability insurance certificate, policy, or bond “to protect the public.” Sec. 4923.03 R. C. This liability insurance policy must “be liberally construed so as to attain the legislative intent to protect the general public from loss by injury or death caused by the negligence of the insured, his agent, his servant or his independent contractor.” Wood v. Vona, 147 Oh St 91, 33 O. O. 284, 68 N. E. (2d), 80. As defendant was holder of a public franchise, under Restatement of the Law of Torts (Vol. 11, Negligence), Section 428, it cannot relieve itself of liability even through the employment of an independent contractor. Defendant concedes that this section is applicable here.

It has long been the law of Ohio that the holder of a public franchise cannot, by employing an independent contractor, delegate its duties under the franchise so as to absolve itself from liability. Cf. Kichman Bros. Co. v. Miller, 131 Oh St 424, 6 O. O. 119, 3 N. E. (2d), 360; Stickel v. Erie Motor Freight, Inc., 54 Oh Ap 74. 7 O. O. 387 , 6 N. E. (2d), 15; Liberty Highway Co. v. Callahan, 24 Oh Ap 374, 157 N. E., 708, syllabi 1, 2. The Liberty Highway and Stickel cases specifically hold that the obligation of a motor transportation company is nondelegable, even though the motor transportation company carries on its business through an independent contractor.

Section 428, Negligence, Restatement of the Law of Torts, reads as follows:

“Contractor’s Negligence in Doing Work Which Cannot Be Lawfully Done Except Under a Franchise Granted to His Employer.
“An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.”

The section is declared in Comment a to be applicable to public service corporations which as such, are of franchise, permitted by their franchise to use instrumentalities which are peculiary dangerous unless carefully operated. The courts, in response to the growing need for public protection on the highways, have held that the tremendous increase in automobile traffic and the use of private motor trucks by certified private carriers to increase their facilities of motor transportation involve an unreasonable risk of harm to others within Section 428. The Supreme Court of Appeals of Virginia recently pointed out that freight trucks monopolize the highways and make them dangerous and declared “it is in the light of their potential destructiveness that a high degree of care is but ordinary care. Boggs v. Plybon, 157 Va., 30, 160 S. E., 77 * * * freight cars which operate along the public highway, intended for the common use of all the people, are “dangerous instruments.” Aronvitch v. Ayres, 169 Va., 308, 318, 193 S. E., 524, 526. In Hodges v. Johnson, D. C., 52 F. Supp., 488, the court declared it is a matter of common knowledge that the transportation of freight upon the highways is fraught with great danger to the traveling public. Cf. War Emergency Co-op. Ass’n v. Widenhouse, 4 Cir., 169 F. (2d), 403, 407, 408.

It is also the law of Ohio that the operation of a motor truck under the circumstances of this record is peculiarly dangerous within the meaning of Section 428. In discussing this particular point the court in Stickel v. Erie Motor Transport, Inc., supra, 54 Oh Ap 79, 7 O. O. 387, 6 N. E. (2d), 17, declares:

“The duties, purposes and obligations of motor freight companies, such as the appellee, are quasi-public in nature and the operation of trucks and trailers on the public highways greatly increases the hazards of driving thereon by the many others entitled to use them.”

The court then commented that the law “should expand to cover newly created and changing conditions and necessities. It would seem that public policy requires it and that the general public affected by the increased hazards has a right to expect it, and, as we read it, this need and propriety of application are recognized in Section 428, Restatement of the Law of Torts of the American Law Institute.”

In Hodges v. Johnson, supra, the injury for which the action was brought was caused by the negligence of an independent contractor. The court held that the employer of the independent contractor was liable, together with the contractor, under Restatement of the Law of Torts, Section 428. The driver of the truck, employee of the independent contractor, had completed his mission and was returning with an empty truck. The court held that, since under its franchise the franchise holder is responsible for the operation of the truck on this mission, it is absurd to say that the responsibility should attach “while the truck is proceeding on its journey loaded, and should not attach on the return journey while empty.” Both the journey and the return journey, the court held, are necessary parts of the same trip and the whole trip was undertaken and was being made under the authority of the franchise. To the same effect see Venuto v. Robinson, 3 Cir., 118 F. (2d), 679, in which the injury was inflicted by an independent contractor, but the court held the motor carrier liable for negligence under Section 428. Cf. Liberty Highway Co. v. Callahan, supra, sylabi 1, 2; Marriott v. National Mutual Casualty Co., 10 Cir., 195 F. (2d), 462.

This court takes judicial notice of the fact that in the last 20 years the number of automobiles on the roads has doubled; that the figures of The American Automobile Association for 1955 show that there are 62,053,697 automobiles,' including buses and trucks, in the United States. These facts require the inclusion within the rule of Section 428 of cars operated under franchises issued to other concerns for the performance of work which can be done only under a franchise. If the motor carrier cannot delegate its responsibility to an independent contractor for the period of delivering the load, neither can it delegate its responsibility for that part of the trip which necessarily must be made after the load is delivered. It is the motor carrier that has put the entire trip in motion.

In the case here Medovic was compelled to report for assignment before being released for work for others. Therefore Sobolovitz v. Lubric Oil Co., 107 Oh St 204, 140 N. E., 634, and Simon v. McCullough Transfer Co., Inc., 155 Oh St 104, 44 O. O. 119, 98 N. E. (2d), 19, do not apply. Neither case rules on a question as to the application of Section 428 of the Restatement of the Law of Torts. The Sobolovitz case declared that an inference cannot be erected on an inference. In the McCullough case, while the Costello case, supra, was cited and quoted, the facts are totally different from those presented herein. An independent contractor, who had delivered his last load of coal before a weekend recess, had thereafter visited a beer garden, and some two hours later was involved in an accident. Here Medovic could not, under his arrangements with defendant, contract for loads from other concerns until defendant released him. At the time of the accident he was moving in the general direction of defendant’s yard, compelled as a part of the pattern of his work to return to base and to report to defendant.

A situation similar to the instant case in many aspects was presented in Mitchell v. Great Eastern Stages, Inc., 140 Oh St 137, 23 O. O. 359, 42 N. E. (2d), 771, 141 A. L. R., 624. Great Eastern had a P. U. C. franchise from the State of Ohio for operating buses over U. S. Route 40. A bus broke down and was being returned to the company repair shop in Cleveland, Ohio, operating on a highway for which the bus company had no franchise, at the time of the accident which was the basis of the action. Great Eastern claimed that, as the bus was not being operated for the carriage of passengers and was not on an authorized route,. its movement was not part of the authorized transportation and the company was not liable. The Supreme Court of Ohio held that a certified common carrier had not ceased to operate as such in doing things incidental to the repairing, servicing and housing of its buses. It held that in accomplishing these incidental purposes, the common carrier is “as much engaged in the business of common carriage as when actually transporting passengers upon specified routes.”

Under this decision the movement of the tractor trailer herein to its base of operation from the spot where it unloaded at Electro Motive is incidental to the housing of the vehicle and is part of the movement of defendant’s authorized transportation.

The judgment of the District Court is affirmed.

      . The parties will be denominated as in the court below.


author: By SKEEL. J:

text:
    STATE, Plaintiff-Appellee, v. BEDNARIK, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3463.
    Decided May 24, 1955.
    Wm. A. Ambrose, Pros. Atty., H. H. Hull, Asst. Pros. Atty., Youngstown, for plaintiff-appellee.
    Herbert, Tuttle, Applegate & Britt, Columbus, for defendant-appellant.
    (KOVACHY, PJ, SKEEL and HURD, JJ, of the Eighth District, sitting by designation in the Seventh District.)
    See, also, 71 Abs 49.
   OPINION

By SKEEL. J:

This appeal comes to this court on questions of law from a judgment and sentence of life imprisonment entered upon the verdict of a jury finding the defendant guilty of murder in the first degree, with a recommendation of mercy. The defendant is now confined in the penitentiary, where he has been since conviction on March 18, 1947. This court, upon application duly filed, granted the defendant leave to appeal under the provisions of §2953.05 R. C., as shown by a journal entry of Feb. 3, 1955. This journal entry provided in part:

“The court having heard the arguments of counsel and being fully advised in the premises finds that the trial court failed to charge the jury in this cause on the included offenses of murder in the second degree and manslaughter when the evidence was such as to require such instructions to be given, that such action was and is a circumstance which demands that the defendant appellant be permitted to have his case reviewed in this court. * *

The foregoing journal entry was filed after this court filed its conclusions of law and fact after the trial of the motion, in the form of an opinion. Such opinion was filed in the case on December 21, 1954.

Upon being granted leave to appeal, the defendant filed his bill of exceptions which has been allowed by the trial judge, and his assignments of error and brief. The assignments of error are as follows:

“1. The court having omitted in its general charge to instruct the jury as to what constituted second degree murder and manslaughter, was thereupon requested by defendant to charge the jury upon this phase of the case, and the court did refuse to charge the jury as to what constituted second degree murder and manslaughter.
“2. The court having refused to charge the jury as to what constituted second degree murder and manslaughter, did refuse to submit verdict forms to the jury covering second degree murder and manslaughter.”

We have re-examined the bill of exceptions and find that the conclusions to which we came on the motion for leave to appeal are clearly sustained by the record. The evidence was such that the defendant was entitled as a matter of law to have the court instruct the jury.that if they found the state had failed to establish the defendant’s guilt of the crime of murder in the first degree, they should find him not guilty of the crime charged and then proceed to examine the evidence to determine the question of whether or not the defendant was guilty of murder in the second degree, defining the elements of such included offenses to guide the jury in their consideration of this phase of the case. A like charge on manslaughter should also have been given.

The defendant’s evidence puts clearly in issue whether or not a robbery was in progress at the time the deceased came to his death, and also whether the gunshot that caused the deceased’s death was discharge purposely to kill the deceased, or was in fact accidentally discharged. As is disclosed by the opinion of this court filed on the motion for leave to appeal, such evidence brings the case within the rules of law stated in the following cases:

Marts v. State, 26 Oh St 162; Windle v. State, 102 Oh St 439, 132 N. E. 22; Freeman v. State, 119 Oh St 250, 163 N. E. 202; State v. Cochran, 151 Oh St 128, 84 N. E. 2d, 742; State v. Muskus, 128 Oh St 276. 109 N. E. 2d, 15.

The second assignment of error must also be sustained. If the trial judge was, by law, required to charge on the law of the included offenses, it was the duty of the court to furnish the jury with forms of verdict in conformity with the charge.

For the foregoing reasons, the judgment appealed from is reversed as contrary to law, and the cause remanded for further proceedings according to law. Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: Per CURIAM:

text:
    GRABOWSKI, Plaintiff-Appellant, v. KAMINSKI et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23865.
    Decided November 21, 1956.
    M. Morgenstern, B. B. Direnfeld, Cleveland, for plaintiff.
    See Grabowski v. Leysa et.
   OPINION

Per CURIAM:

In this case the court granted a new trial because it held “that the verdict in its amount is not sustained by sufficient evidence; and * * * is so insufficiently sustained by evidence * * * as to its amount, as inherently to show passion and prejudice on the part of the jury * *

We have examined the record in this case of some 415 pages very carefully and find there is no evidence whatever in the entire record which would indicate that the jury was influenced by passion and prejudice. We find also that there was ample credible evidence to sustain the verdict in plaintiff’s favor. We hold, also, that the amount of the verdict was not inherently so large as in itself to indicate passion and prejudice; in view of the evidence and the charge of the court to the jury that “damages must rest in the sound judgment and discretion of the jury * * *. it must be a reasonable amount in view of all the cir<cumstances.” And that the jury could not “bring in a verdict for more than the amount * * * prayed for in the petition” namely, $25,000.00.

We conclude that the judgment granting a new trial should be reversed as constituting an abuse of discretion and the cause is remanded with instructions to vacate the entry granting the motion for new trial and to overrule the same and reinstate the judgment. A remittitur is granted in the sum of $1500.00, as under all the circumstances, we find the judgment to be excessive but not influenced by passion and prejudice, and if same is accepted as modified in the sum of $2500.00 within ten days of this entry, the judgment, as modified, should be affirmed. Otherwise the judgment will be reversed as being excessive but not in-1 fiuenced by passion or prejudice and the cause remanded for further proceedings according to law.

Exceptions. Order see journal.

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


author: By LYBARGER, J.

text:
    COOKSTON, Plaintiff, v. BOX et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 673825.
    Decided October 23, 1957.

      Owen C. Neff, Raymond E. Cookston, Cleveland, for plaintiff.
    Roland A. Baskin of Baskin, Kelley, Lausche & Heavilin, Cleveland, for defendants.
   OPINION

By LYBARGER, J.

STATEMENT OF FACTS

In this action the plaintiff seeks a restraining order to keep the defendants from erecting and maintaining a fence or obstruction at any place on their property whereby free passage on a pathway across their land by the plaintiff and others would be impeded.

January 17, 1908 there was laid out the Mathews and Gilbert SubDivision No. 6 known as “Oakwood on the Lake” in what is now the city of Rocky River, Ohio. The lots with which this case is concerned lie between the westerly bank of the west branch of Rocky River and Riverdale Drive. Originally there were two small islands in the subdivision which were bounded by Rocky River to the east and lagoons to the west; and the lots on these islands had no access to any street or public highway, but were accessible only by way of Rocky River or the lagoons. What was called North Island was joined to the mainland some time in 1927 when the lagoon to the west of it was filled in. The defendants own sublot No. 629 whose easterly boundary is Rocky River, and sublot No. 649 whose westerly boundary is Riverdale Drive. Since the filling in of the lagoon these two sublots have adjoined one another, the westerly line of Lot No. 629 being the easterly line of Lot No. 649. The answer of the defendants indicates that the description of the land on which they rely is by metes and bounds and it describes the two lots as one parcel of land. The defendants have access to their land by way of Riverdale Drive to the west and Rocky River to the east.

The plaintiff owns sublots No. 626, 627, 628, 630 and 650 in the SubDivision. Sublot 630 is to the north of sublot 629 owned by the defendants. It abuts on Rocky River to the east and is bounded by private property on the north, south and west. It is not adjacent to any public highway and cannot be reached except via Rocky River or by going over the land of other persons. The plaintiff has access to sublots 626, 627 and 628 through sublot 650 which faces on Riverdale Drive.

The defendants acquired their property April 4, 1949 but they were familiar with the location for about ten years before.

In 1926 taxes un Sublot 649 became delinquent and remained so through January 31, 1941 when the land was forfeited to the state. The lot was sold to one of defendants’ predecessors in interest by the County Auditor, July 31, 1944.

The plaintiff lived in the area as early as 1932 and bought sublot 630 in 1949. She acquired sublots 626 and 650 in 1950 and lots 627 and 628 in 1954.

Prior to 1927 persons occasionally walked over a pathway on private property along the westerly edge of North Island in going north and south on the island. Such, path was not well defined or improved. Prom 1927, when the lagoon was filled in, to the present time, owners and occupants of land in the sub-division mentioned, tradesmen and delivery men and the public in general have used a pathway which runs in a general northerly and southerly direction (and over what was formerly the center of the lagoon) from one end of North Island to the other and across sublot 649, the land of defendants. The plaintiff has used this path since 1932. Presently the path is well defined where it extends across the land of the plaintiff, having been improved with stepping stones in recent years. It is also well defined across the land of the defendants and northerly therefrom.

On sublot 629, which is the easterly part of defendants’ property, there is a two-story dwelling, a shed and several fences. In the past there was a fence close to the westerly line of this part of the land. Orginally sub-lot 649 was not improved although now it has been graded and contains a driveway which leads to defendants’ dwelling to the east. It was not fenced prior to this year, when defendants erected the fence whose maintenance plaintiff now seeks to enjoin. The evidence indicates that the path which crosses defendants’ land lies along the easterly border of lot 649 and that it is about five-feet wide. It is several inches west of the westerly line of lot 629 at the nearest point and is within a close distance of the dwelling house.

CONCLUSIONS OF LAWS

In the light of the above facts there is presented for decision the issue of whether or not the plaintiff and the public have an easement over the defendants’ land. Can an easement be enforced on the ground that it was created either by implication, necessity or prescription? Did the intervention of a forfeiture of lot 649 to the state and a subsequent tax sale preclude the creation of any easement over defendants’ land?

A court of equity has “adequate power to afford full relief to all parties before it.” (Brinkerhoff, Trustee v. Smith et al, 57 Oh St 622.) It is a court of conscience, must do equity and must apply “rules of reason -and righteousness.” (20 O. Jur. 2nd, page 18.) But in doing so it must stay within the framework of those precedents and rules of law and equity which govern the pertinent facts before it.

There has developed a great body of law concerning easements of every kind. It is hardly necessary here to characterize an easement as an incorporeal hereditiment annexed to the ownership of real property or to review its essential qualities, since the same have been so fully set forth in the decisions and text books. An easement may arise by express grant, by implication, by prescription or estoppel. The facts of the instant case obviate need of considering grant or estoppel.

In Ohio easements may be implied “from a conveyance describing the premises as bounded upon a way, from a conveyance with reference to a plat or map, from a use existing at the time of severance of ownership of land, and from necessity alone, as in the case of ways of necessity.” (18 O. Jur. 2nd, Easements, Sec. 27, pg. 552.)

The prerequisites of an easement by implication have been set forth in syllabus one of the leading case, Ciski et al v. Wentworth et al, 122 Oh St 487, as follows:

“While implied grants of easements are not favored, being in derogation of the rule that written instruments shall speak for themselves, the same may arise when the following elements appear: (1) A severance of the unity of ownership in an estate; (2) that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; (3) that the easement shall be reasonably necessary to the beneficial enjoyment of the land granted or retained; (4) that the servitude shall be continuous as distinguished from a temporary or occasional use only.”

It is the law that “adverse possession for twenty one years is not necessary to create an easement by implied grant” (Helle v. Markotan, 73 Abs 387).

It cannot be overlooked that the first requisite for such easement is unity of ownership as the foundation of the right. “The easement derives its origin from a grant, and cannot legally exist where neither the party claiming it nor the owner of the land over which it is claimed nor anyone under whom they or either of them claim, was ever seized of both tracts of land” (18 O. Jur. 2nd, Easements, Sec. 32, page 563).

A typical example of the implication of the grant of an easement of way is “where an owner of land has continually used an apparent or actually known way over one part of his land in order to reach another part thereof and transfers the latter part.” Here “the grant of an easement to continue the úse of such way will be implied as an appurtenance of the land transferred, if the way in question is reasonably necessary to the enjoyment of the land granted, and materially adds to its value” (18 O. Jur. 2nd, Easements, Sec. 36, page 567).

An easement of necessity is one implied by law to carry out the intent of the parties, as determined by a fair construction of the conveyance, on the theory that without it the grantee or grantor, as the case may be, cannot make use of his land. See: Trattar v. Rausch, 154 Oh St 286.

As in the case of an easement by implication so in that of an easement of necessity it can only be had in land owned by the grantor at the time of the conveyance, and never out of land of a stranger. A way of necessity cannot exist where there is no unity of ownership of the alleged dominant and servient estate. See: Hillery v. Jackson, 40 Abs 202.

Applying the above principles to the facts in the instant case, the court fails to find that at any time was there any unity of ownership or title in plaintiff’s sublot 630 and either of defendants’ lots 629 or 649. True, all lots were in the same subdivision; but there is no evidence as to who were the first grantees, or who owned the lots in the earliest days following the recording of the plat. Definitely there is no evidence that the same person owned the plaintiff’s lot and the two lots of the defendants. The evidence is that in 1927 (when the north lagoon was filled and persons began walking over the pathway on sublot 649), Julia E. Manning owned sublot 629; someone else had title to lot 649, and it is not revealed who held lot 630. Unfortunately for the plaintiff, there is no evidence that she owns a parcel which at any time before she bought it enjoyed an appurtenance such as a way over land owned commonly by one of her predecessors in interest. So far as the evidence goes those who formerly owned lot 630 had no title to either lot 629 or 649. There never having been unity of ownership, hence no severance of such unity, equity cannot imply the granting of an easement nor can it declare that a way of necessity was reserved by implication.

Next the court must consider whether the plaintiff acquired an easement by prescription. It is a general proposition of law that—

“When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land.” (Pavey v. Vance et al, 56 Oh St 162.)

To establish an easement by prescription there need be no grant, either express or implied. It is necessary that there exist for twenty-one years or more, open, notorious, continuous adverse use and enjoyment by one or more persons of a way over the estate of another.

It should be noted that plaintiff’s easement, if any, depends on prescription, not adverse possession. “Prescription relates to incorporeal rights, while adverse possession applies to an interest in the title to the property.” A prescriptive right is acquired by open, notorious, continuous, and adverse use for a period of twenty-one years. The title by adverse possession depends upon all of those elements with the additional element of exclusive possession.” (Penna. R. R. Co., v. Donovan, 111 Oh St 341 at Pgs 349-50.)

In the well-considered opinion of the Court of Appeals in the case of Smith v. Krites, 80 Oh Ap 38, the Court sets up the essential elements of a title by prescription as follows:

“1. That the use and enjoyment of what is claimed as an easement was adverse under claim of right.
“2. That the use and enjoyment of what is claimed as an easement was exclusive.
“3. That the use and enjoyment of what is claimed as an easement was continuous and uninterrupted for a period of 21 years.
“4. That the use and enjoyment of what is claimed as an easement was within the knowledge of the owner of the estate over which the easement is claimed.”

The Court then points out that possession of a way need not be continuously in one person only; that the public may attain prescriptive rights; that use of another’s land without permission and with the owner’s knowledge, is not itself adverse and constitutes evidence of a claim of right; that the term “exclusive” means that the owner “and her predecessors in title were thereby excluded from exercising individual proprietory rights therein,” and that open and notorious use of a way may charge the owner with knowledge of such use.

The Court is convinced by the weight of the evidence in the instant case, that beginning in 1927 and continuing down to the present, the public in general (and since 1932 the plaintiff) has made open, notorious, continuous and adverse use of a pathway over defendants’ sublot 649. This use was within the knowledge of the defendants.

In this connection the defendants suggest three defenses to defeat plaintiff’s alleged easement. First, they say the land was unenclosed and stands on a different footing than enclosed lands. Davidson v. Dunn, 16 Oh Ap 263, and Board of Education v. Nichol, 70 Oh Ap 467. The Court is convinced that the facts in these cases, however, are clearly distinguishable from those in this case. Here lot 649 was adjacent to lot where defendants’ residence stands. In defendants’ deed the lots were described as one parcel of land. Lot 649 was used for ingress to the dwelling. The mere fact that it didn’t have a fence around it does not mean that plaintiff could not under proper circumstances acquire an easement by prescription over it. See: Glander v. Mendenhall, 39 Abs 104.

Next defendants contend that any use of the path was permissive “and was so permitted from a desire to be neighborly,” to quote from defendants’ brief. The law says that a permissive use is not adverse and cannot ripen into an easement by prescription, no matter how long continued. (Elster v. Springfield, 49 Oh St 82.) Mere acquiescence, however, is not permission. (Sting v. Rothalser, 82 Oh Ap 107.)

By the weight of the evidence the Court is convinced that there was no “neighborly courtesy” or any conduct on the part of the defendants which might be interpreted as permission, express or implied, to the plaintiff or anyone else to use the path in question.

Finally the defendants contend that since sublot No. 649 was forfeited to the state in 1941 for the non-payment of taxes which had become delinquent beginning in 1926 and was sold at tax sale in 1944 to defendants’ predecessors in interest, no prescriptive right can run or be claimed against the state and the sale to defendants’ grantors gave them a new and perfect title free from all liens and encumbrances, if any, arising by reason of the use of the pathway.

Sec. 5762 GC (now §5723.12 R. C.) reads as follows:

“The county auditor, on making a sale of a tract of land to any person under §§5723.01 to 5723.19, inclusive, R. C., shall give such a purchaser a certificate of sale. On producing or returning to the auditor the certificate of sale, the auditor, on payment to him by the purchaser, his heirs, or assigns, of the sum of one dollar and twenty-five cents, shall execute and deliver to such purchaser, his heirs, or assigns, a deed, which deed shall be prima facie evidence of title in the purchaser, his heirs, or assigns. When a tract of land has been duly forfeited to the state and sold under such sections, the conveyance of such real estate by the auditor shall extinguish all previous title and invest the purchaser with a new and perfect title, free from all liens and encumbrances, except taxes and installments of special assessments and reassessments not due at the time of such sale, and except such easements and covenants running with the land as were created prior to the time the taxes or assessments, for the nonpayment of which the land was forfeited, became due and payable.” (Emphasis supplied.)

The court is satisfied that this statute was in effect at the time when the property was sold at tax sale to Walter and Marie Barrett defendants’ predecessors in interest.

At this point a review of some of the facts is necessary. The subdivision here in question was laid out in 1908. From then until 1926 persons used a pathway over sublot 629 a considerable distance to the east of sublot 649 in going north and south on North Island. The taxes on sublot 649 became delinquent in 1926; the north lagoon was filled up in 1927 and thereafter and down to the present time the general public has used a pathway over the easterly end of lot 649. It is obvious that no easement by prescription was obtained over any portion of the land prior to the time when taxes became delinquent. The path was not then being used over lot 649 and the period of twenty one years of adverse use had not elapsed as to lot 629.

The case of Mogren v. A. P. Investment Co., 73 Abs 188, decided by the Court of Appeals of Cuyahoga County in 1956 bears directly upon the problem presented by these facts. The syllabus reads as follows:

1. “When the state takes possession of property by forfeiture less than twenty-one years from the date a claimed open, notorious and adverse possession of a right of way over such property came into being, such claimed right ends, since there can be no prescriptive right claimed against the State.

2. “Where plaintiff’s petition, in part, seeks to quiet title to the use of a driveway against defendant, any defense to such claimed right of plaintiff does not create a new issue, and the Court of Appeals, upon appeal on questions of law and fact, may consider whether or not an alleged prescriptive right to the use of real property can survive a forfeiture of such property to the state, even though such defense was not presented to the trial court.

3. “A right to the use of the property in the subservient estate created by prescription, can not vest the owner of the dominant estate with any greater right in the use of the property of the subservient estate than that of the owner of such subservient estate.

4. “Where no easement has been created prior to the first date of tax delinquency, a purchaser of forfeited lands at auditor’s sale, as provided oy law, acquires a new and perfect title, free of any claim of an easement by prescription.”

In the instant case it is clear that no easement was created prior to 1926, the first date of tax delinquency. Taking possession of the property by forfeiture in 1941 the state acquired it fourteen years after the adverse use of the public had begun and by the same token seven years before such adverse use had ripened into a prescriptive right. The court is convinced that §5762 GC is applicable and that by virtue of it the defendants, through their predecessors in interest, were vested with a new and perfect title free from the encumbrance of any easement, since ownership by the state stopped the running of the time of adverse use.

For these reasons, in spite of the obvious hardship which plaintiff must endure by reason of the location of sublot 630, the relief for which she prays can not be granted and judgment must be rendered for the defendants.