author: By THE COURT:

text:
    SPIDEL, Estate of, In re.
    Ohio Appeals, Second District, Darke County.
    No. 690.
    Decided January 9, 1952.

      T. A. Billingsley, Greenville, Orel J. Myers, Dayton, for applicants-appellants.
    Wilbur D. Spidel, Richard E. Hole, Greenville, Webb Clark, Dayton, for contestants.
    Jesse K. Brumbaugh, Greenville, for churches.
   OPINION

By THE COURT:

This is an appeal on questions of law from an order of the Probate Court fixing the amount of extraordinary compensation to the executor and fees for legal services of appellants, Billingsley and Myers, upon the application of said executor. The amount of the fee fixed for the executor was $3000.00 and for both attorneys $15,000.00.

Eight errors are assigned. They may be epitomized as error in the reception of evidence on behalf of those who opposed the application; rejection of evidence offered by appellants; that the Court, in making the order, did not give proper consideration to certain elements which should have been evaluated in fixing the amount of the extraordinary compensation and fees, that the finding of the Court is contrary to law and against the manifest weight of the evidence and other errors on the record. We set them out in detail as we discuss them.

The appellants are T. A. Billingsley and Orel J. Myers whom we hereinafter refer to as appellants or applicants. The objectors here, and in the trial court, were the heirs at law of the testator, other than Sarah Spidel Warrick, contestants in the Will contest suit and the defendants in the will case, legatees under the will, The Presbyterian Church of Greenville and the Brethren Church of Greenville, to which we refer as the objectors.

The first error assigned is that the Court rejected evidence offered by the executor and his counsel as to the wishes, orders and directions of the decedent given to them prior to his death as to the manner and method of administering his estate, particularly as to the employment of counsel.

The second error assigned is rejection of other evidence offered on behalf of the applicants.

Specifically, these assignments are directed to the refusal of the Court to receive the proffered testimony of the executor, Mr. Billingsley, Mr. Myers and Bessie Coombs. The questions propounded to Miss Coombs and her proffered answers were these:

Q. Whether or not at any time he (John W. Spidel) ever discussed with you the fact that he had asked any persons to represent the defense of his will in case it should be contested:

A. Yes.

Q. What did he say to you at that time, Miss Coombs?

The proffered answer: That he told her that he had asked Orel J. Myers of Dayton, Ohio, and T. A. Billingsley of Green-ville, Ohio, to defend the will in ease a suit to contest it was filed.

Q. Whether or not John Spidel talked to you about this matter frequently?

A. Yes.

The executor had been inquired of in chief whether or not prior to the death of John Spidel he had given instructions as to what he wanted the- executor to do after his death. An objection was sustained to this question and it was not permitted to be answered and the proffer was to the effect that he had been directed by John W. Spidel, in his lifetime, to employ the two appellant attorneys. In the direct examination of Mr. Myers, in an answer which was not responsive to the question, he started to say that John Spidel had asked him to defend his will. Upon objection the Court said, “I will not permit that part to be stated.!’ Objection was noted but there was then no proffer to the answer. However, in the cross-examination of Mr. Myers he was interrogated at length and fully about the request by decedent, in his lifetime, that in the event of a contest of his will he desired Myers and Billingsley to defend his will. Mr. Billingsley testified substantially as had Mr. Myers. It thus appears that the trial judge had before him the subject matter of the testimony which it is claimed the Court erred in refusing to accept, with this qualification that it came from interested witnesses. Miss Coombs was disinterested.

It was the contention of opponents that at all times in the will contest applicants represented the life tenants, Dale R. Warrick and his wife, Sarah Spidel Warrick, and that employment of appellants by the executor was unnecessary and unauthorized because the residuary legatees, the churches, were represented by counsel.

We have been favored with the opinion of the trial judge which discloses appreciation and careful consideration of the questions involved in his order. We, of course, do not and cannot consider this opinion as findings of fact and law or as the order appealed from, but, it is of value insofar as it sets forth the reasons supporting the conclusion reached. He states that:

“The residuary legatees having employed counsel, object to the allowance of extraordinary compensation.”

Supporting the view of the objectors, the Court held that the executor was under no duty to employ counsel. He citds and discusses Andrews v. Andrews, 7 Oh St 143; Foltz v. Boone, 107 Oh St 562; Re: Ullman, 12 O. C. C. (N. S.) 340; Re: Curry, 20 O. N. P. (N. S.) 48; Wier v. Wier, 7 C. C. (N. S.) 289; Re: Estate Johnson, 4 O. N. P. 156. Notwithstanding the opinion that the Executor was not justified in employing counsel the Court awarded $15,000.00 to counsel which negatives the concept that the executor acted without authority in employing counsel to defend the will. Manifestly, if we are in agreement with the proposition that the executor acted without authority in the employment of counsel to defend the will on his behalf, our work is at an end because the fee fixed could not be questioned by appellants as being inadequate, nor, by objectors as excessive inasmuch as no appeal is prosecuted by them. However, if the trial judge erred in acting upon the conviction that the executor had not the right to defend and to employ counsel to defend the will, his judgment may have been affected to the prejudice of appellants.

We are not ^disposed to say that an executor is in every situation justified in employing counsel to defend the will wherein he is named as fiduciary. Different factual situations confronting an executor require different determination whether or not he shall employ counsel. 18 O. Jur. 440.

Whether or not the foregoing statement is correct in view of §12082 GC which has been enacted since the cases cited by the trial judge were announced, we hereinafter discuss.

It is estimated that the churches, as legatees under the Spidel will, will take in value about four-fifths, and the Warricks, life tenants, one-fifth of the net estate. The heirs, other than Mrs. Warrick, were given one dollar each.

The background of the will of John W. Spidel is convincing that it was drawn not only with the purpose of passing the bulk of his estate to the churches but also to prevent certain relatives, who normally would be the objects of his benefaction, from taking anything of substance from his estate. The testator went to extraordinary and unusual lengths to make certain that his will would accomplish the distribution of his estate as he had therein provided. To support the validity of his will and his capacity to make it, he had circulated and widely signed a petition reciting the fact of his ability to execute a will. He talked about it to many of his friends. The Warricks, the life tenants, and the executor realized the full import of this background on the Spidel will. The only means that the testator had provided to assure that his will would be carried out as written was through his representative, the executor. Whether or not his will was wise and just or equitable was not a determinative factor as to its validity. If he had the capacity to make it, he could dispose of his property as he saw fit.

Upon the admissibility of the testimony under consideration counsel for neither side offers any authority whatever. Applicants insist it was admissible. Objectors say that it was not. The trial judge thought it was in the nature of a testamentary pronouncement which to be effective must have been carried into the will. Counsel for objectors say that if counsel appellants rely upon a contract with the testator they should have filed this contract as a claim with the executor during the period prescribed by statute.

As we understand the claim of appellants, it is not that they had an enforceable contract with the testator but that they had a contract of employment with the executor which was in conformity to and in observance of a specific request of the testator. The testator could have provided in his will for the appointment of counsel in the event it was contested but the fact that he did not, in our judgment, does not preclude proof of his desires in the matter by testimony aliunde the will. Had the testator entered into an oral contract, the party with whom he contracted could have maintained after testator’s death, an action upon the contract against his estate if he could make proof of his contract by testimony other than his own. Tanner v. Huntington National Bank, Exr., 70 N. E. (2d) 159. By analogy, the same result should follow in the situation presented here.

This testimony was admissible and probative of the right and duty of the executor to employ appellants as counsel in his defense of the will and if the trial judge should find that the executor and counsel were directed by the testator as testified, it affords strong support for the claim that the executor was under the duty to act.

Much has been said to the effect that it was not necessary that the executor employ counsel to defend the will, inasmuch as the churches had capable counsel whose employment was known to and sanctioned by the executor and who, at all steps in the litigation defended the will, and if the will were upheld would be required to bear the burden of the payment of attorneys fees on behalf of the estate.

There are several facts which tend to support the claim that the executor defended the will in that capacity and that he did employ and should have employed counsel. It is inferable from the record that the churches, at all times, were in an attitude of compromise with the Spidel heirs who had been disinherited by the will. The possibilty of such compromise was lessened when the will was set aside. It was heightened when that judgment was reversed. Warrick, as executor and his wife, the life tenant, consistently and at all times insisted upon the administration of the will in every essential as drawn. Mrs. Warrick maintained this position to her own substantial financial disadvantage. There can be no doubt, under all the facts appearing, that they acted in accord with the desires and purposes of the testator. It is undisputed that the executor paid for the bill of exceptions on the appeal in the will contest and that although this was known to the churches no offer was made to share this expense. Without this bill no error upon which the reversal was based could have been presented in the Court of Appeals. The churches must have known at this juncture that Mr. Warrick was acting, as executor, in the defense of the will and not individually.

We are not critical of the churches for the compromise which they made with the contestant heirs. Technically, they had the right to give away any part' of the money which they would receive under the will. No doubt the compromise was actuated with good purpose and in the right spirit but that does not change the fact that it defeated, in part, the dominant purpose of the testator as expressed in his will.

The executor sustained a very close personal and business relation with the testator in his lifetime and had a more intimate knowledge than any other person of the facts which would be helpful to the defense of the will. That the executor knew of and consented to the employment of counsel by the churches was not a bar to his right to defend and to employ counsel. It is not claimed that the churches opposed such action or that the executor indicated that he would not defend. Obviously, he approved the decision of the churches to provide counsel to defend the will. He could not have prevented it had he opposed. It is said that, inasmuch as he was a legatee, there was a presumption that he acted in his own behalf. This is true but such presumption may be over come by a fair consideration of all the evidence. Under the order of the Court as to. the payment of the fees out of the estate he would be required to bear his proportionate share as a legatee.

Comment was made throughout the hearing that the will contest litigation was not concluded until the compromise was effected and that all that the decision of the Court of Appeals accomplished was to require a new trial. Had the decision of the Court of Appeals then been journalized, the status of the will was that it was the valid last will and testament of John W. Spidel because of the presumption of its validity resulting from its probate. The entry which eventually was spread upon the record sustained the will.

It is contended that counsel in the defense of the will were employed by the Warricks. This is supported only by the signatures in their behalf by counsel in certain entries but the direct testimony of counsel and Mr. Warrick is to the effect that he had no contract with and expected no compensation from the Warricks individually.

The third assignment of error is error in the reception of evidence offered on behalf of those opposing said applications. We find no discussion of this assignment in the briefs.

The fourth assignment of error is:

For error in fixing the amount of compensation to be paid to Orel J. Myers and T. A. Billingsley, as attorneys, for services over and above the services ordinarily rendered by an attorney in the settlement of an estate, and for services in defending the will in the contest thereof in the case of Spidel, et al. v. Warrick, etc., No. 31815, Common Pleas Court of Darke County, Ohio, and for services rendered by Dale R. Warrick, as Executor, over and above the services ordinarily rendered by an executor in the administration of an estate, and for extraordinary services rendered in the defense of the will contest in the above entitled case, the allowance fixed by the Probate Court being too small as appears from the record in the Bill of Exceptions, and said finding of the Probate Court being contrary to and against the manifest weight of the evidence as shown by said record.

and the fifth assignment of error is:

That the finding and judgment of the Probate Court failed to take into consideration the size of the estate, the character of the estate, the importance, intricacies and complications of the questions involved, the amount of recovery for and to the benefit of said estate, the time involved and the value of the services rendered, the results accomplished through the services so rendered, the finding of said Probate Court being wholly insufficient when the compensation fixed by the said Court is considered on the basis of the evidence received in the hearing on the application herein.

Both of these assignments are predicated upon the weight of the evidence. The attorneys who were offered by the parties as expert witnesses on the question of the amount of compensation that should be allowed to the applicants’ attorneys, were eminent counsel especially well qualified with years of active experience in the practice of law. Some who testified for the applicants were permitted to express opinions based upon the evidence of Mr. Billingsley as they heard it from the stand as to the nature and extent of the services performed by counsel for the executor and for which they asked to be compensated. This testimony was received over the objection and exceptions of counsel for objectors. Although the validity of these objections is not before us as there is no cross appeal, inasmuch as this case may be tried again, we 'advise counsel that an expert should not be permitted to give an opinion based upon his interpretation of the testimony of a witness whom he has heard.

The attorneys who testified for the objectors all answered, in chief, hypothetical questions propounded to them and they were, of course, interrogated at length on cross-examination.

It is the contention of appellants that they were employed by the executor at the request of decedent testator and that the services were upon a contingent basis; that is to say any fees to be paid to them were dependent upon the successful outcome of the litigation. The claim of the objectors was, and is, that the employment of counsel was not upon a contingent basis and could and should be fixed, if at all. upon the fair value of their services based upon per diem compensation and the hypothetical questions were propounded and answered upon that theory. They also say that there was no contingent fee because under §12082 GC counsel were assured payment for their services though they were unsuccessful in defending the will and that successful or not, they would be paid upon order of Court.

Sec. 12082 GC was effective July 4, 1945, several months after the application for probate of the will but shortly before it was admitted to probate. It authorizes an allowance of a fair, just and reasonable compensation to a fiduciary and his counsel to b^‘ fixed by the' Common Pleas Court for services rendered in an unsuccessful defense of a will.

Counsel for appellants urge that this legislation is of doubtful validity. Its constitutionality was not properly challenged. If we would hold that it is clearly unconstitutional it would lend support to the claim of appellants that their employment was on the basis of a contingent fee. Had the executor failed in his defense of the will and had application been made to the Common Pleas Court to fix attorneys fees under the statute its validity may have been questioned by contestants. This, of course, is conjectural. We, therefore, assume that the statute is valid and effective and to the extent that it would have been given application had the executor failed in his defense of the will, it removes any basis for the contention that the employment of counsel for the executor was contingent in the sense that they must have maintained the validity of the will to receive any compensation. The testimony of the appellants does not support the claim that there was a contingency respecting the payment to them of any fees under their employment by the executor if the Court found that such employment was justified.

In our holding that there was no contract for a contingent fee as affected the right of appellants to receive any compensation, we do not say that there were no contingencies affecting the amount of the fee, or that the basis upon which the court should fix the fee upon a successful termination of the contest of the will litigation should be the same as upon an unsuccessful defense of the will. There were two contingencies involved upon the contract upon which appellants rely.

(1) The approval of the court of the defense of the will by the executor and of his employment of counsel.

(2) That they succeed in sustaining the will.

If they failed as to the first, they would receive no compensation from the executor upon the order of the Probate Court and, could have no benefit there of §12082 GC. If they did not succeed in the defense of the will they would not be denied all compensation but would probably receive less under §12082 GC.

Assuming as we do, that §12082 GC is valid it presents the query whether in all instances where there is a contest of a will and the executor actively defends with counsel he shall be paid without respect to a determination that the executor was justified in such employment. There is no qualification in this section upon which payment shall be made to counsel for the executor except that counsel have been ‘unsuccessful in sustaining the will. If there remains an obligation upon the fiduciary to establish the necessity of his defense of the will by counsel determination of this question would be made by the Common Pleas Court and would thus take away from the Probate Court any authority in that respect.

Upon a careful examination of the hypothetical questions in their entirety propounded to the witnesses for the objectors and particularly the answers thereto, we are convinced that they embody only those' elements which would constitute a proper basis of a fee to counsel if they had been unsuccessful in defending the will, the estate being of sufficient value to justify full payment of fees, and did not give consideration to a material added element which was proper in fixing a fee based upon the successful defense of the will. We shall not labor the proposition that, in all probability, any Court would award a larger fee to counsel who had succeeded in upholding a will where the estate involved was of the value of $260,000.00 than it would upon an unsuccessful defense of the will. It seems self-evident and is abundantly supported by authorities and by paragraph 12, (4) of the Canons of Professional Ethics of The American Bar Association.

There are substantial differences in the hypothetical questions respecting the amount of legal fees propounded by applicants and objectors and on the basis upon which the answers of the witnesses were given. All of the witnesses for the applicants give definite value to the element of the success in the result accomplished by counsel for the executor in the will contest litigation. The witnesses for the objectors base their answers on direct-examination entirely upon the fair value of the services upon a reasonable per diem charge. In our judgment, the answers of the witnesses' for the objectors are, in every instance, as stated in chief, probative of a sum that should be allowed to counsel under §12082 GC but fail to give weight to at least one material element making up the value of the services of appellant counsel in this case, viz: the successful outcome of their efforts.

There are other particulars wherein the hypothetical questions are either objectionable or lacking as put to objectors experts. Their questions contain no mention of the services rendered by counsel in the probate of the will and in securing the reduction of the Federal Estate Tax which had been assessed against the estate after the setting aside of the will. These services in our opinion were extraordinary in character and brought about a reduction in the Federal tax of approximately $27,000.00 to the benefit of the estate as the result of the protest entered and prosecuted by the executor and his counsel. The application of the executor for an allowance of counsel fees was intended to include all extraordinary services in behalf of the estate and broad enough to include these services. This saving in tax alone to the estate was almost equal to the total amount earned by all counsel as fixed by the trial judge.

In the addendum to the hypothetical question of objectors this appears:

“Now, assuming that all of the facts just stated to you are true, and assuming further that the attorneys who are applying for fees (1) had no contract with said Dale R. Warrick as executor and (2) that they also represented Dale R. Warrick and Sarah Spidel Warrick, and (3) that each the said Dale R. Warrick and Sarah Spidel Warrick were well able to pay for any services rendered on their behalf as individuals, now, in your opinion, would the basis for the estimate of the value of the services rendered to Dale R. Warrick, as executor, be such a situation as would justify the allowance of a fee upon a contingent basis rather than one measured by the actual value of the services rendered to the estate?” (Numbers in quotation ours.)

Bracket (1) assumes that appellant counsel had no contract with the executor to defend the will. If that is true, then they have no standing whatever in their claim for fees. Their claim is predicated upon an express contract with the executor and they and the executor testify as to such contract. There is nothing to the contrary. All terms of the contract were agreed upon. It could of course be eonsumated only by Court action. The natural inference to be drawn by witnesses from the assumptions in (2) and (3) are that coupled with the fact that there was no contract between the executor and his counsel they were representing Dale R. Warrick and Sarah Spidel Warrick individually; that they were well able to pay for such services and they only would pay was to be implied.

Upon the assumptions in the question there not only was no basis for a contingent contract, there was no contract whatever. There is no objection to the hypotheses that appellants represented Mr. and Mrs. Warrick and that they were able to pay for their services although all the direct testimony in the case was to the effect that they had not agreed to pay for any part of the services of counsel, no charge was made against them and none was intended to be made. But the objectionable part of the question is on combining in the question both the unwarranted assumption that there was no contract between counsel and executor with the hypothesis that they were representing solely the Warricks as individuals. The question as originally framed included this subject matter:

“and considering further that no application was filed in the Probate Court of Darke County, Ohio, by the said Dale R. Warrick, as executor, for authority to employ counsel as executor for the defense of said will, and (1) considering further that no contract was entered into by the said Dale R. Warrick and the said T. A. Billingsley and Orel J. Myers setting forth (2) any means, basis or standard of compensation for any services they might render to said executor, can you, from a consideration of the facts related to you in the foregoing question, give an opinion as to the value of the services which would be chargeable to the general estate, (3) having in mind their representation of Dale R. Warrick, as executor, and also having in mind that the principal residuary legatees were represented by counsel in the case.” (Numbering ours.)

The assumption in (1), as we have heretofore stated, is not supported by the record and (2) there was a means of compensation agreed, viz: the judgment of the Court.

We have discussed these hypothetical questions with the realization that the Court had wide discretion in fixing the fees and that the answers to the questions were not necessarily controlling upon the judgment. We could not, therefore, hold that standing alone, the answers require a reversal on the weight of the evidence.

Assignment of error No. 6 is:

Error in the record inasmuch as the Probate Court found that the reasonable value of the extraordinary services rendered was $30,000.00, and in ordering one-half of that amount paid by the estate when in fact under the law the entire amount should be assessed against the residuary estate as administration expenses, and that under the law of this State the entire allowance for attorney fees and extraordinary compensation should be charged against the residuary estate.

It is urged that the Court erred in requiring the payment of the fees allowed to be made from the general estate of testator and we are cited to In Re: Dickey Estate, 57 Abs 346. The order of the Court conforms to the principle of the Dickey case. Here the estate from which the fees are to be paid is the residuum from which come the life estates and the fee of the Churches.

Upon the claim that the allowance made to the executor for his extraordinary services in that capacity was inadequate, we note that in the written opinion the trial judge fixed his compensation at $3500.00. The judgment entry sets out the sum of $3000.00. There is no explanation of this difference and it may be but an inadvertence in the preparation of the entry. We have no means-of knowing just what items were considered by the trial judge in fixing this compensation. Because of the wide discretionary power of the trial judge in fixing this compensation, we cannot say that he abused it in awarding $3500.00 as a minimum, and the amount to be fixed can be reconsidered at the rehearing of the application of appellants.

Because of the acceptance of the hypothetical questions with the infirmities to which we have drawn attention, the uncertainty as to what effect the answers had upon the judgment, together with the conclusion of the Court in his opinion that the defense of the will by the executor and his counsel was not justified or authorized, and the refusal to admit the testimony of Miss Coombs which was material and which refusal was prejudicial under all the circumstances appearing in the record, and the uncertainty as to the correct amount of extra compensation to be awarded the executor, we hold that the judgment must be reversed and the cause remanded for further proceedings according to law.

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


source: Caselaw Access Project

author: By CROSSLAND, J: By CROSSLAND, J;—

license: Public Domain

text:
    FRANKLIN REAL ESTATE COMPANY, Plaintiff, v. HENDERSON et, Defendants.
    Common Pleas Court, Morgan County.
    No. 7303.
    Filed July 29, 1952.

      Day, Cope, Ketterer, Raley & Wright, Canton, for The Franklin Real Estate Company, plaintiff.
    Ernest E. Erb, Pros. Atty., Randall Metcalf, Fogle & Fogle, Marietta, for Board of County Commissioners of Washington County, Ohio, and County Auditor of Washington County, Ohio, and for the Board of Education of Wolf Creek Local School District.
    Frank H. Cox, Pros. Atty., Mercer & Abel, Robert S. Christie, McConnelsville, for Board of County Commissioners and County Auditor of Morgan County, Ohio.
    Robert S. Christie, Robert V. Benjamin, McConnelsville, for Board of Education of Center Local School District.
    William M. Summers, Marietta, for Board of Education of Beverly Local School District.
   OPINION

By CROSSLAND, J:

PRELIMINARY STATEMENT

Before discussing, considering and determining any of the issues and the questions involved herein the Court first expresses its appreciation and admiration of the excellent and outstanding presentation of law and evidence by the very able participating counsel. Especially noteworthy was the concomitant of excellence, the genuinely friendly and cordially respectful attentiveness and consideration by all opposing counsel to one another and to the Court.

It is with a sense of deep pride in our American institutions that this Court, in approaching its duty and responsibility, acclams to the world an exemplification in the trial of this case of the characteristic American competitive spirit in earnest and forceful devotion to duty, pursued in an attitude and atmosphere of high personal regard and friendly solicitude.

To all counsel, the Court expresses its very personal thanks and appreciation for its own real pleasure which the task evoked.

JURISDICTION

1. In his opinion in Petitt v. Morton et al., 36 Oh Ap 348, Cuyahoga County Court of Appeals, affirmed in 124 Oh St 241, Judge Sherick, on page 353, took note of Section 16, Article I, of the Bill of Rights of the Constitution of Ohio, in these words:

“We take the broad view that upon the principle of justice there is no wrong without a remedy, unless it be inhibited by statute or well-defined public policy. Section 16, Article I, of the Bill of Rights of the Constitution of Ohio, expressly provides that all courts shall be open and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”

2. Is it no injury done plaintiff in its land that each of two counties now carries its controverted property on their respective tax duplicates and that each demands and insists upon full payment to it alone of all taxes derivable therefrom?

3. Is there any valid and compelling reason why plaintiff, who contributes all the substance and value of litigation, shall not have remedy from its dilemma by due course of law?

4. And is there any compelling juridical deficiency which says that plaintiff shall not have justice administered to it without denial or delay?

5. The separate statutory proceedings available to plaintiff are not only not as suitable and satisfactory to its problem and purpose but are also of doubtful finality in determining the questions and issues resolvable by declaratory judgment, a remedial recourse contemplated and intended by the legislature of this state for this very type of uncertain perplexity, in its enactment of §§12102-1 to 12102-16 GO inclusive.

6. The efficacy of a declaratory judgment in this case is the fact that it is the alternative of at least three independent and wholly unrelated statutory proceedings for the separate determination of county boundary, tax appeal, and road problem, and with the local school district question not then assured of answer and itself thereafter possibly requiring and awaiting the outcome of an eventual declaratory judgment action.

7. Can it reasonably be supposed that the framers of our state constitution and laws, in their enlightened and progressive outlook upon justice, incentive, development, progress, happiness and prosperity, intended either to deny or delay the adjudication of a justiciable controversy penalizing and impeding the lawful operation of any person, the value of whose investment and enterprise is the subject matter of an entire litigation?

8. Without taking the time to review and restate, in writing, the reasons and references which the Court firmly believes fully supported its previous rulings with respect to all jurisdictional issues, the Court now merely reiterates and reasserts its previous view that the within action is properly brought, highly appropriate and legally tenable and that this Court is authorized and empowered by fundamental and statutory law to hear, consider and determine the issues and questions herein presented and that the courts of this and many other states have so held; and also that the county defendants of both counties entered their general appearance herein at the outset of this litigation.

. A. THE QUESTION OF THE COUNTY LINE.

9. Plaintiff’s petition prays for the judgment of this Court declaring what parts of the lands described therein are situated in Washington County and what parts thereof are situated in Morgan County and declaring the rights and duties of the various defendants with respect thereto.

10. Upon the pleadings and the evidence the lands in controversy are a part of Section Thirty-one (31), Township Six (6) and Range Ten (10) and a part of Section Thirty-two (32), Township Six (6) and Range Ten (10), each of the Zanesville Land District or Muskingum Allotment, said part of Section Thirty-one (31) being either 8.91 or 9.84 acres and said part of Section Thirty-two (32) being either 19.95 or 18.06 acres, the differences apparently being attributable to the different stages of the Muskingum River at the time of the Dusz and Dumond surveys, the irregularity of the shore line, and also possibly a question of the exact location of the section line. Nevertheless, this aggregate acreage of said parts of said sections, whether 28.86 or 27.9 acres, admittedly constitutes the land in dispute, the rest of the described real estate being located in Washington County and therefore clearly outside the necessary purview of any declaration by the Court.

11. The question itself arises by and from the creation of Morgan County, erected by act of the legislature of the state of Ohio, December 29, 1817, and by its act of December 28, 1818, effective March 1, 1819, organized as such. (Statement of Facts, par. 2)

12. The “north boundary of the dohation tract,” referred to in §14425 GC, is the north boundary of a certain tract of 100,000 acres conveyed by Letters Patent by the President of the United States to the Ohio Company pursuant to resolution of Congress passed April 21, 1792 (Statement of Facts, par. 3), and is generally known and referred to in various deeds, maps, plats and other documents as “Ludlow’s line” or “Ludlow’s survey” (Statement of Facts, par. 6) and is the South boundary of Township 6 of Range, 10 above referred to, and said Township 6 was surveyed for the United States by John Bever in 1798 (Statement of Facts, par. 6).

13. The records indicate that the disputed land consisted of a tract of 26:13 acres “situated on the South side of the Muskingum River and between said river and said Ludlow’s line” (Statement of Facts, par. 9), and that between September 2, 1814, and December 1, 1824, successive transactions at the Zanesville Land Office led to issuance of the Patent therefore by the United States of America to Edward T. Hayward, December 1, 1824, plaintiff’s original predecessor in title of the disputed area (Statement of Facts, par. 9 and 10); that said tract was entered in the first tax duplicate for Morgan County for the year 1820 in the name of John Scott, in whose name it was similarly listed in 1821 (Statement of Facts, par. 11), a purchaser on credit who assigned his certificate to one Isaac Ross whose own assignee was the said Edward T. Hayward (Statement of Facts, par. 9); that for the years 1824 to 1826 inclusive and 1829 to 1834 inclusive said lands were entered on the tax lists of Morgan County in the name of Edward T. Hayward; and that said acreage was found to be first entered on the tax duplicate of Washington County, for the purposes of taxation, from the year 1871 down to and including the year 1951 (Statement of Facts, par. 12).

14. Paragraph 2 of the Statement of Facts defines the boundaries of Morgan County as provided by said §14425 GC, 16 Ohio Laws 42-43, the pertinent part of which reads as follows:

“beginning at the southwest corner of township eight, range thirteen; thence east to the eastern bank of the Muskingum river; thence down said river with the meanders thereof to a point where it will first intersect the north boundary of the donation tract; thence east with said northern boundary line to the southeast corner of township five, range nine;”

15. The Court repeats its view expressed toward the end of the trial, as found on page 128 of reporter Ruth Johnston, that “it is considered that location of the north boundary of the donation tract is well established, if not virtually conceded, on both sides, as indicated in recent surveys of the two counties and exhibited by them.”

16. The remaining question and only question remaining, as affecting the two counties of Morgan and Washington, with respect to the defendant commissioners and auditor of each, is whether the dividing county line is the river bend and “thence east with said northern boundary line,” from the eastern end of the river bend, or whether it begins at the western end of the river bend and “thence east with said northern boundary line.”

17. What did the legislature mean and intend and how is its meaning and intention determined?

18. The question presented is not one of locating the county line but of determining whether or not the legislature in its enactment of §14425 GC did so unambiguously or uncertainly, either not requiring or requiring extraneous evidence to demonstrate its intention in the meaning of the language of its enactment.

19. The Court considers that the law is well settled in Ohio and elsewhere that a county is the creature and political subdivision of the state, that the law of the state fixes and determines the geographical limits of a county, and that in Ohio this sovereign power of the state, once exercised, could not and can not be abridged or otherwise affected by any subsequent act except its own. Such is the history of county legislation in Ohio, pursuant to constitutional authority and limitation, and so held. (C. W. & Z. R. R. Co., v. Commissioners Clinton County, 1 Oh St 90.)

20. The principle of law above referred to was aptly stated by the Supreme Court of Alabama in the case of Russell v. C. N. Robinson & Co., 153 Ala. 327, 44. So. 1040-1:

“Counties are political subdivisions of the state, created for public convenience in the administration of government. Their territorial limits are fixed by the Legislature, and outside of constitutional provisions whatever of jurisdiction and powers they possess are derived from the same source. They have no power or authority to alter or change their territorial limits or boundary lines. This is a right reserved to the Legislature of the state, and to be exercised in the way prescribed in the Constitution.”

21. In the later case of Elmore County v. Tallapoosa County, 222 Ala. 147, 131 So. 552, the Alabama Supreme Court said:

“If a boundary line of a county can be determined as a question of law, acquiescence in another line by contiguous counties is immaterial.”

22. The 14th syllabus in the Arkansas case of Pruitt v. Sebastian County Coal & Mining Co., 222 S. W. 2nd 50, decided July 4, 1949, reads:

“A definite legislative determination of county boundary could not be changed by any amount of recognition or acquiescence.”

23. Looking now to said §14425 GC, the first course begins “at the southwest corner of township eight, range thirteen; thence east to the eastern bank of the Muskingum river;” There is no contention of any patent or latent ambiguity as to the meaning of this language, which plainly and obviously was intended to take the line of the newly created county of Morgan to a point on the eastern bank of said river, east from the southwest corner of said township eight, range thirteen.

24. The language of the statute then continues: “thence down said river with the meanders thereof to a point where it will first intersect the north boundary of the donation tract;”

25. While the sitting Judge of this court has not been either a civil engineer or an English professor and while the Court holds both professions in the highest respect in their respective fields, it does not consider that the services of either profession or the testimony of any professional or other witness is at all necessary in order to understand clearly the meaning and intention of the foregoing language, nor even the interpretation of a court, in that the language simply means what it so plainly and unequivocally says, namely, that the boundary line of Morgan County proceeds down the Muskingum river with its meanders to a point where it, the Muskingum river, will first intersect the north boundary of the donation tract, or, in other words, where it first intersects the Ludlow line.

26. “thence east with said northern boundary line to the southeast corner of township five, range nine;” could only be from the FIRST and not a second or subsequent intersecting of the Ludlow line by the Muskingum river, the pronoun “it” obviously referring to the noun “river,” the language within the semi-colons being a self-contained statement of intention with respect to that particular course, which is a course separate and distinct from the one previously stated, just as it is also separate and distinct from the one that follows, and in the same manner that each of the three are separate courses separately stated. The separate courses then hinge together just as do the separate statements thereof.

27. This Court further considers that the intention of the legislature, as revealed in and by the meaning of its boundary recitals, requires no interpretation whatever and that an ordinary grasp of the meaning and use of the English language, which the Court professes to have, without professorial or engineering aid or advise, is altogether adequate to apprise the Court clearly and fully exactly what the legislature intended and did.

28. The effect of the first course proceeding to the eastern or opposite bank of the river would be, of course, to place the full width of the river at that point of crossing in Morgan County and that is all and as much as can be ascribed to the delineation of the first course of the boundary line of Morgan Countv.

29. The Court unqualifiedly rejects, as tortured, distorted, unreasonable and unintended, the ungrammatical, unnatural and illogical interpretation sought to be placed on such plain and unambiguous language by the adherents and witnesses of Washington County.

30. As a matter of law, the Court holds that no testimony or other explanatory evidence is needed to understand the meaning intended in and by the language of §14425 GC and none is accepted or acted upon for such purpose.

31. Extraneous evidence, being deemed unnecessary, is immaterial and irrelevant, without probative or other evidentiary value, and is dismissed accordingly, with determination of the question of the Morgan County line being concluded by the inclusion within Center Township of Morgan County, as an original part of it, of the portion of plaintiff’s lands described as follows:

FIRST TRACT

Situated in the Township of Center, County of Morgan and State of Ohio, and being a part of Section Thirty-one (31), Township Six (6) and Range Ten (10) of the Zanesville Land District, and bounded as follows:

Beginning at the Southeast corner of said Section 31, which point is on the Ludlow line; thence North 84 deg. 56 min. West along said Ludlow line 1215.00 feet to the Muskingum River; thence down said river and following the meanders thereof in a Northeasterly direction a distance of about 1365 feet to the East line of said Section 31; thence South 5 deg. 04 min. West along the East line of said Section to the place of beginning, containing 8.91 acres.

SECOND TRACT

Situated in the Township of Center, County of Morgan and State of Ohio, and being a part of Section Thirty-two (320, Township Six (6) and Range Ten (10), of the Zanesville Land 'District, and bounded and described as follows:

Beginning at the Southwest corner of Section 32, which point is on the Ludlow line; thence North 5 deg. 04 min. East along the West line of Section 32, 593.00 feet to the Muskingum River; thence down said river and following the meanders thereof in a Northeasterly and Southeasterly direction to the South line of said Section 32, which said line is also the Ludlow line; thence along said Ludlow line North 84 deg. 56 min West 1635.00 feet to the place of beginning, containing 19.95 acres.

32. Accordingly, it is considered and determined that said tracts should be described as situated in Morgan County, deeds for the conveyance thereof should be filed for record in Morgan County and taxes charged against the above described lands paid to Morgan County, and that there are no rights or duties of the Commissioners and Auditor of Washington County with respect to said lands, the rights and duties provided and imposed by law upon commissioners and auditor with respect to the lands within the county of their jurisdiction being in this instance the rights and duties of such officers of Morgan County.

33. In compliance with the motion that the Court state -separately in writing its findings of fact and conclusions of law, rather than to repeat or restate preceding statements reference will merely be made by paragraph numbers for the purpose of identification and embodiment in journal entiy, as follows:

Findings of fact, paragraphs 5, 6, 10, 11, 12, 13, 14, 15 and 16.

Conclusions of law, paragraphs 8, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32.

34. Complying with said motion’s request to make specific answer to questions 2 to 13 inclusive, the Court does so in their order, as follows:

2. Yes.

3. Yes.

4. Yes.

5-1. Washington County purported to exercise jurisdiction from 1871.

5-2. Morgan County defaulted but did not acquiesce.

6. The deliberations and considerations of the legislature in 1817 are concluded in and by its enactment of §14425 GC. The Court is not called upon to theorize or speculate and there is no occasion to consider doing either.

7. This question is disposed of by the Court’s paragraphs 25, 26, 27, 28, 29 and 30.

8. No. Taxes were collected by Washington County officials, who merely acted in the vacuum created by the default and inaction of Morgan County officials.

9. There was no actual acquiescence on the part of Morgan County and none is implied.

10. No, as legally impossible.

11. None.

12. There was no such recognition by the counties and no finding thereof is made from any testimony.

13. a. The Court fails to find that Morgan County officials did or could at any time drop the disputed lands from Morgan County.

b. Answered in No. 5-1.

c. Answered in No. 5-2.

d. Neither relevant nor material, nor in evidence for reasons which accompanied trial rulings.

e. Answered in No. 7.

Each of the twelve specific questions and the foregoing answers thereto shall likewise be made part of the journal entry.

Exceptions granted Washington County defendants.

B. THE QUESTION OF THE LOCAL SCHOOL DISTRICTS.

Before approaching consideration of the legal aspects of the claims of the three local school districts the undersigned judge, as a citizen and neighboring resident free-holder of the Muskingum Valley, is impelled and constrained to inquire further of said parties and their respective counsel concerning present prospect of local school district consolidation.

In directing this inquiry it is with full understanding and appreciation of the fact that response thereto lies entirely within the province of the disposition and inclination of each such school district. It is not the purpose or desire of the undersigned to seek to impose an unwanted suggestion upon any unwilling party, much less to invade the prerogative of local school district consideration and determination. It is simply that the undersigned cannot dispel in his own mind certain equitable considerations of several and joint interest and concern of each of the three involved local school districts.

By way of explanation only, various transfers of territory from Center Local School District in Morgan County to Beverly Local School District in Washington County are indicative recognition of inability on the part of said Center District alone to serve adequately the school attendance needs of a portion of its Morgan County youth, while the inter-relationship thereby occasioned refutes any proposition that said Beverly District is a self-contained unit within Washington County, and while the Wolf Creek Local School District, although entirely outside Morgan County, geographically and physically is the most intimately contiguous of the three. However, the salient fact of superior and transcending significance is that not one of these three districts ever contributed anything to the disputed territory, although each is now seeking to benefit therefrom alone. It should be added that no criticism is intended or implied for the past, as there has been no occasion for any schooling or other school service for the disputed area.

The local economic by-product of the Ohio Power Company’s future generating plant is indivisible by or along local school district lines but the continued existence of such lines is bound to retard or limit its potential throughout the combined territory of said three districts and may exclude it almost entirely from the ones deprived of said plant’s school revenues, in addition to the direct loss for school purposes.

Beyond the direct and indirect tangible benefits, educationally and economically, within the natural and normal aspiration of present and prospective inhabitants of the- entire community, neighboring families and neighborhood children, are the variable factors of social life in an average rural community, that are conducive either to harmony, friendliness and good-will or to dissension, hostility and ill-will. We citizens cannot help create harmony and happiness in our beloved country, now so desperately needed for effective national participation in our presently unsettled and uncertain international relationships, unless we strive earnestly and consistently to do so within our local communities and we cannot do so locally if we withhold from others among and about us advantages that exceed our own needs, particularly when such advantages are not the fruit of our own industry, effort, or design.

“There is that scattereth, and yet increaseth; and there is that withholdeth more than is meet, but it tendeth to poverty.”

(Proverbs: Chapter 11, Verse 24)

“He that is first in his own cause seemeth just; but his neighbor cometh and searcheth him.”

(Proverbs: Chapter 18, Verse 17)

It is with a sense of profound respect for the legal question submitted, without desire or disposition to become argumentative or evasive of the issues, but solely to relate the misgiving that being required to make judicial pronouncement thereon entails, that prompts this most unusual request for up to the minute information of the latent possibilities for common cause in behalf of the similar aims of the constituents of the three local school districts, through their official boards, pursuant to the enabling provisions of law.

In order to afford opportunity for full consideration by the three involved local school districts of their common interest and concern no journal entry in the case will be expected or required until this latter matter has been administratively or judicially determined.

SUPPLEMENTAL OPINION

Filed September 10, 1952.

By CROSSLAND, J;—

THE QUESTION OF THE LOCAL SCHOOL DISTRICTS

The Court having been informed by letter of August 28, 1952, pursuant to its Inquiry of July 29, 1952, relative to the above stated question, that:

“Counsel agree that there appears to be no possibility of consolidation or integration administratively of the three school districts at the present time,”

the duty thereby devolves upon the Court to consider and determine the legal issues herein engaged and therefore proceeds to do so.

Supplementing the Court’s findings of fact and conclusions of law requested by the Washington County and Wolf Creek Local School District officials, as heretofore given, the court further considers and determines that its said findings and conclusions of July 29, 1952, clearly remove Wolf Creek Local School District as possible claimant of the disputed territory, inasmuch as said school district makes and has no claim whatever to any Morgan County Territory, said formerly disputed territory having been determined heretofore to be a part of Center Township in Morgan County. .

The sole remaining issue concerns the respective claims of the two remaining school districts, Beverly Local of Washington County and Center Local of Morgan County.

Both latter school districts are legally created and operating public school administrative units, having their inception, continuity, government and administrative history and presently constituted existence under and pursuant to state law and proceedings of their local and respective county school boards.

Under authority of law and pursuant to provisions thereof numerous transfers of territory were made from Center Local to Beverly Local, beginning shortly after the creation originally of the Beverly Village School District, January 3, 1930.

The first official action taken with respect to a subsequent series of transfers was by the Morgan County Board of Education, at a special meeting of September 1, 1930, concerning which Exhibit B-26 was offered in evidence, objection to which was heretofore sustained but which the Court now considers should have been admitted in evidence and therefore recalls its said former ruling and now overrules said objection thereto.

It will be noted that former §4685 GC, effective during the time and at the occasion of pertinent transfers, similar in effect to existing §4830-5 GC, provided as follows:

“Territory must be contiguous. — The territory included within the boundaries of a city, village or rural school district shall be contiguous except where an island or islands form an integral part of the district.” (Emphasis by the court.)

Whatever the legal effect of the September, 1930, and August, 1932, transfers of territory for school purposes from the Morgan to the Washington County School District, in each instance such territory was recognized and characterized by the Morgan County Board of Education as “contiguous to said Washington County School District,” and in each such instance the territory formerly in Center Township Rural School District was thereby “attached to and made a part of Beverly Village School District in Washington County, Ohio.”

The Morgan and Washington County Boards of Education are presumed to have proceeded and acted in contemplation and fulfillment of law, in exercising jurisdictional authority over the subject matter of territory transferred for school purposes and without challenge of its purported validity either then or since, appear to have done so and it is so considered and determined by the Court.

What then is the legal effect of these particular transfers? A natural beginning of the answer to the foregoing question lies in a further question. What was the legal effect after such particular transfers? Must it not likewise have been intended on the part of the Morgan County Board of Education that the territory thereafter remaining in the former Center Township Rural School District “shall be contiguous,” in compliance with the explicit mandatory provision of §4685 GC and its introductory mandate that such “Territory must be contiguous”?

The Court certainly considers that these two respective county boards of education each actually knew, just as they are also presumed to have known, the provisions, meaning, purpose and legislative intent expressed and implicit in the statute under and pursuant to which the Morgan County Board of Education transferred and the Washington County Board of Education accepted certain territories out of Center Township Rural School District of Center Township, Morgan County and into Beverly Village School District of Washington County.

The only logically and legally possible inference deducible therefrom is that the then duly constituted and acting Morgan County Board of Education intended and expected that there were transferred by them in these September, 1930, and August, 1932, transfers of territory from Center Township in Morgan County for school purposes and thereupon for such purposes subsequently “attached to and made a part of Beverly Village School District in Washington, County, Ohio,” all territory of Center Township Rural School District lying south of the intended and expected north boundary line of the said Beverly district. Nor could said Morgan County Board then have legally and properly acted and done otherwise than as is now necessarily inferred as its intention and purpose at that time in contemplation of and obedience to law.

Moreover, the action of the Morgan County Board of Education, at its special meeting of September 1, 1930, as a sort of preamble to its formal transfer of September 18, 1930, clearly expresses the intention consummated by its said subsequent action, in determining in said special meeting that “it was shown that the terrtory involved in the proposed transfer included all of — fractional section 31 and parts of fractional section 32,” then excluding from the latter only such part of fractional section 32 as was subsequently transferred in the August, 1932, transfer. (Emphasis by the court.)

Certainly, the foregoing clearly and definitely evidenced a desire and purpose of the Morgan County Board of Education to divest itself of all territory in fractional sections 31 and 32 and in so doing it thereby, and only thereby, complied with the mandate of law under which it acted and operated.

The Court therefore concludes that the disputed territory comprised in that part of plaintiff’s lands lying within the bounds of the Muskingum River and the north boundary of the donation tract, as described and referred to in its Opinion of July 29, 1952, is and has been since November 7, 1930 a part of the present Beverly Local School District and so declares its judgment with respect to the contentions of the aforesaid three local districts, with the rights and duties appropriate thereto on the part of the respective counties and county and school board officials of Morgan and Washington as well as of the Board of Education of the Beverly Local School District.

Formal findings of fact and conclusions of law consistent and in accordance with the foregoing paragraphs of this Opinion may be prepared and submitted by counsel for said Beverly District to plaintiff and Morgan County Counsel for inclusion and integration in a single Journal Entry pursuant to this and the opinion of July 29, 1952, and upon its final completion by all of them then submitted to remaining counsel for their approval and then to the Court for its consideration and approval for filing by the Court, noting and saving exceptions to all adverse parties, with costs taxed to plaintiff.


author: By HORNBECK, PJ. By THE COURT:

text:
    COLLINS, a minor et, Plaintiff-Appellee, v. POTASKY, Defendant-Appellant, and GRIFFITH, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2164.
    Decided November 20, 1951.
    Pickrel, Schaeffer & Ebeling, Dayton, William H. Selva, of counsel, for plaintiff-appellee.
    Marshall & Smith, Dayton, P. Eugene Smith, of counsel, for defendant-appellant, Moe Potasky.
    B. S. Keyt, Piqua, for defendant-appellee, James Griffith.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment in behalf of the plaintiff-appellee against Moe Potasky, defendant-appellant, entered on the verdict of a jury for $2500.00.

Ten errors are assigned to the judgment which we will consider in detail after a statement of the material facts.

The action was for personal injuries suffered in the late afternoon of September 21, 1949 by the minor plaintiff who was a passenger in the. rear seat of a Chevrolet driven by Jerome Hewitt. Riding with him in the front seat was the owner Gird Hewitt. The Chevrolet was struck by a Buick driven by James Griffith. The Chevrolet was moving southwardly on Route 25 near Vandalia. The Griffith car was moving northwardly. Two other cars were involved in the occurrence by reason of which Collins was injured. A Plymouth car, which had been moving northwardly on Route 25, had stopped in front of the south entrance to Popular Hills Cemetery preparatory to crossing the highway to the entrance to the cemetery. The driver of the car had stopped near the center line of the north-bound roadway and was giving an arm signal of a purpose to move to the left. The fourth car was that of defendant-appellant, Potasky, who was driving a Cadillac moving northwardly on Route 25. We hereinafter refer to the plaintiff as Collins, the car in which he was riding as. the Chevrolet, to the driver of the Buick as Griffith, the driver of the Cadillac as Potasky and to the Plymouth car as the Plymouth.

There is no substantial variation in the testimony to the effect that the Griffith car had been moving and weaving, more or less, on its right side of the highway up to a short time before the collision; .that it struck the Plymouth car as it, the Buick, left its right side of the highway; that it moved on across the road and onto its left or west side thereof and struck the Chevrolet while it was moving on the west side of the highway either upon the improved portion or when it was on the berm to its right of the roadway. The Griffith car struck the Collins car with sufficient power to cause it to strike a tree along side the highway, which impact caused the injuries for which plaintiff sought damages. The collision of the Buick and the Chevrolet also injured the father of the driver, Gird S. Hewitt, who stepped out of his car immediately after it came to a stop and walked ten or twenty steps to the north of the place of the collision and collapsed.

The controversial evidence relates to the position of the Cadillac driven by Potasky and the Buick driven by Griffith immedately before the collision and whether or not there was any contact between the Cadillac and the Buick prior to the collision between the Buick and the Plymouth and the Buick and the Chevrolet.

The plaintiff in his amended petition charged negligence against both defendants. The plaintiff claims 'that the verdict is supported by the testimony and particularly that of Griffith that the Buick as it approached the Plymouth, slowed down and a short distance before it had reached the Plymouth had come either almost to a stop or to a rate of speed of not more than fifteen miles per hour, when it was struck from the rear by the Potasky car; that the Griffith car at the time it was struck was on the right or east side of the highway, the front left wheel being about one foot and not more than two feet from the center line, the left wheel two feet and not more than three feet therefrom; that the left front fender of the Cadillac struck the rear left fender of the Buick causing it to leave its side of the road, strike the Plymouth and Chevrolet. It appears that the surface of the road was slippery tending to cause cars to skid.

Defendant, Potasky, claims that his Cadillac did not strike the Buick prior to its impact with the Plymouth and the Chevrolet; that as he approached the Buick for a distance of two hundred feet from the scene of the collision and as it was occurring, he observed it weaving in the road; that he was well over on his right side of the road and that the Buick, after it struck the Chevrolet, turned around came across the road and struck the Cadillac at the left fender with the rear end of the Buick.

At the conclusion of plaintiff’s case and at the end of the whole case defendant Potasky moved for a directed verdict in his behalf and later for judgment notwithstanding the ■verdict, which motions were overruled. Special charges were given before argument at the request of Griffith and Potasky and interrogatories were submitted to and answered by the jury finding that Potasky was negligent in striking the Buick proximately causing the damage to plaintiff. After judgment entered on the verdict, motion for new trial was filed and overruled.

The first three errors assigned are that the verdict of the jury and judgment thereon is contrary to law, the verdict is not sustained by and is against the weight of the evidence. The fourth error assigned is in the overruling of the motion for a directed verdict. The fifth, in refusing to give special written instructions Nos. 4 and 5 to the jury before argument at the request of the appellant. The sixth in overruling appellant’s motion for judgment veredicto non obstante. The seventh in overruling appellant’s motion for new trial. The eighth in the admission of evidence over the objection of the appellant. The ninth, the damages awarded are excessive and appear to have been given under the influence of passion and prejudice and the tenth, error in the general charge.

Appellant urges that the fourth and the sixth assignments should be sustained because there is no probative evidence in the record to support any verdict on behalf of the. plaintiff and against appellant. This claim is urged upon the proposition- that it is a physical impossibility for the accident to have been caused in the manner testified by Griffith, namely; in the striking of the Buick at the left rear fender by the front left fender of the Cadillac. We doubt if it was essential to the plaintiff’s case that the jury find that the left front of the Cadillac struck the Buick, provided it found that the Cadillac struck the Buick in the rear.

Appellant urges two phases of the testimony to support his contention. One, that neither Jerome Hewitt, the driver of the Chevrolet or Gird S. Hewitt, riding along side the driver saw the Cadillac at any time prior to the collision. It is contended that had the Cadillac been in collision with the Buick the Hewitts having seen the Buick must have observed the Cadillac. The situation confronting the Hewitts was not such that they were required to observe cars moving on the opposite side of their lane in the highway. Until the Buick was seen to be coming across onto their side of the highway, their attention was not attracted to it. At that time, the Plymouth and the Buick were in their immediate line of vision. They, and particularly the driver, were intent on avoiding the Buick striking them as it skidded across the road towards them. Both say that their eyes were riveted on the Buick. Mr. Jerome Hewitt, the driver said that it charmed him as a snake. It is unusual that they did not see the Cadillac if it was in the position that Griffith places it or where Potasky places it. No reason appears why the Hewitts should have withheld any testimony respecting their observation of the Cadillac although it is as difficult to explain why they did not see the Cadillac at any time because admittedly it was across from the scene of the collision immediately after it had occurred. It is singular that Potasky did not at any time prior to the collision see the Plymouth which was in front of him and in his lane of travel. It may be that he, as the Hewitts, was intent only on the movement of the Buick. The second reason to support these assignments of error is that the version of Griffith as to the manner in which the collision was brought about and the photograph of the Griffith car demonstrate that it was contrary to nature or physical laws, opposed to common knowledge, inherently improbable and inconsistent with the circumstances to contend that the Cadillac struck the Buick so that it would move as it did in striking the Plymouth and the Chevrolet. It is insisted that the photograph, Plaintiff’s Exhibit D conclusively supports Potasky’s version of the collision, namely; that the Buick struck the Cadillac after the collision with the Chevrolet.

This Court is made up of members who do not have scientific knowledge in the field of mechanical physics, nor is there any testimony in this record supporting the claim of the appellant that the collision could not have occurred as the jury must have found it to have occurred. So many factors are involved in bringing about the movement of the Buick that we would not feel justified in holding that it was an impossibility that the Cadillac caused the Buick to move as it did when it left its side of the road. The Buick may have been moving slightly when struck, the road was slippery. In attempting to guide the Buick it may not have responded as it would have on a dry surface. A skidding car frequently moves in a direction opposite to that in which the steering wheel would ordinarily cause it to move.

Defendant Griffith’s Exhibit No. 1 was a piece of metal which it was claimed is a part of the Cadillac car found wedged inside the left rear fender of the Buick. It is claimed that this piece of metal appears on Plaintiff’s Exhibit D., a photograph of the Buick taken in a Piqua garage to which the Buick was removed after the collision and found by Griffith on Sunday following the accident which occurred on Wednesday. If this metal is from the Cadillac it is corroborative of the testimony of Griffith that the Buick was struck by some part of the Cadillac at the left rear bumper. If the piece of metal did not come from the Cadillac it would seem that Potasky could have produced evidence to that effect. It was not forth coming. If the Buick automobile was moving and it was struck at the left rear fender by the Cadillac it would not be improbable that the impact would cause it to move to the left toward the Plymouth and the Chevrolet. It i's more difficult to visualize the left front part of the Cadillac Striking the Buick where plaintiff’s Exhibit D discloses that it was struck. If it did so occur the Cadillac must have been well over onto the southbound lane with the front turned in a northeasterly direction. Manifestly Griffith’s statement that the left front fender of the Cadillac struck the rear of the Buick must have been based, in part, on observation made subsequent to the collision.

We cannot hold that as a matter of law there was no evidence supporting the contention of Griffith as to the manner in which the Buick was struck by the Cadillac, nor, is it so improbable that it so occurred as to require us to hold that the verdict of the jury is manifestly against the weight of the evidence. This disposes of assignments of error Nos. 1, 2, 3, 4 and 6.

Assignment No. 5 is directed to the refusal of the court to give special written instructions to the jury Nos. 4 and 5, requested by appellant before argument. Appellant does not develop this claim in his brief other than to cite two cases, but we have examined the charges and find that the court did not err in refusing to give them. No. 4 omitted the issue of Potasky’s negligence and required a verdict in his behalf though he may have been found to be negligent and that his negligence was a proximate cause of the collision between the Buick and the Chevrolet. No. 5 assumed that which was in dispute viz; that Potasky suffered damage to his automobile after the collision of the Buick and Chevrolet.

There was no error in the admission of the metal, defendant Griffith’s exhibit No. l. It was admissible upon the testimony of Griffith as to the time when and the place from which it was recovered from his automobile in connection with the photograph of the Buick showing the presence of an object which could have been the metal, Exhibit No. 1.

We do not find that the damages awarded for the injuries are excessive. Indeed they are modest in view of the nature and extent of the injuries suffered by the plaintiff.

The one error of most substance assigned relates to the general charge of the trial judge and particularly that part wherein he said to the jury that in arriving at the amount of compensation for personal injuries to the plaintiff it could take into consideration mental distress, if any, together with any impairment and ability to earn money in the future, if any; expenses for medical care, if any, not only for medical care already received by plaintiff, but any medical care or surgery care in the future that will be necessary to restore plaintiff to health.

It is urged that there was no prayer for damages for medical expenses incurred or to be incurred nor any claim of impairment of future earning capacity and further that if any medical expenses had been incurred they should not be included in an award to the plaintiff because he as an unemancipated minor, was not liable to them and therefore could not recover for them.

Appellant cites Traction Company v. Woolley, 6 O. N. P., N. S., 444, to effect that it is prejudicial error to charge the jury without qualification that it should include in damages expenses sustained by reason of an accident where the petition does not aver any such expenses and the evidence does not tend to support it. There was no evidence in the instant case of any amount of expenses incurred by reason of the medical attention given plaintiff and none as to any future expenses which might be incurred for such purpose, nor, was there any proof of impairment of future earning capacity of the plaintiff. The petition averred that' plastic surgery would be required to correct and prevent permanent disfigurement of plaintiff’s face, but the court specially instructed the jury to disregard this averment.

Upon the evidence the jury had no basis whatever upon which it could award damages for medical expenses and impairment of earning capacity and as to both elements the trial judge qualified such an allowance by the term “if any.” So applying this charge there is no probability that the jury could have based any part of the damages awarded upon expenditure, present or future for medical services or for loss of future earning capacity because no such proof was before it. The amount of the verdict does not reflect an excessive award. It is to be presumed that the jury obeyed the injunction of the trial judge and it does not reasonably appear that the jury awarded any sum representative of the elements of damages which we have just discussed.

The case is close on the weight of the evidence. We do not hold otherwise, but the issues of fact were for the jury. The case was well tried and the trial judge fully and ably charged the jury.

No error is predicated on the failure of the trial judge to submit a form of verdict for plaintiff against defendants jointly. In that connection we refer to Dash v. Fairbanks, Morse & Co., 49 Oh Ap 47.

We find no error assigned well made.

The judgment will, therefore, be affirmed.

WISEMAN and MILLER, JJ, concur.

ON APPLICATION FOR REHEARING

No. 2164. Decided December 4, 1951.

OPINION

By THE COURT:

Submitted on application of appellant for rehearing on the claim that we did not, in our original opinion in considering the general charge, give application to the case of Traction Co. v. Woolley, 6 O. N. P. (N. S.) 444, affirmed by the Supreme Court without opinion. 77 Oh St 642.

We recognized the infirmity in the charge as given, but, considering its effect on the verdict, reached the conclusion that it did not prejudice the rights of appellant. That, of course, is the test. In the cited case the improper elements of damage were charged and included without qualification. Not so in the instant case and it is plain that the jury could not have observed the qualifications and awarded any damages to the plaintiff in the particulars concerning which the charge is objectionable.

The application will be denied.

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


author: By DULL, J.

text:
    CORTRECHT, Plaintiff, v. CORTRECHT, Defendant.
    Common Pleas Court, Darke County.
    No. 33499.
    Decided July 31, 1951.
    S. E. Mote, Greenville, for plaintiff.
    Wilbur D. Spidel of Spidel, Staley & Hole, Greenville, for defendant.
   OPINION

By DULL, J.

This matter was submitted to the court upon the petition of the plaintiff husband, the answer and cross petition of the defendant wife, the reply of the plaintiff husband and the evidence.

At the conclusion of two days of hearings, straining the meaning of the term preponderance and attempting to reach a practical, rather than a strictly statutory solution, the court granted an oral decree of divorce to the plaintiff husband upon the aggression of the defendant wife, it being the opinion of the court that the parties should be permanently separated. Further, by virtue of §11993 GC, the defendant wife was awarded, among other things, as her share of the plaintiff husband’s personal property, the sum of $100.00 per month for a period of 10 years or a total sum of $12,000.00.

Both parties having expressed dissatisfaction with such a solution and upon the motion of the defendant wife, the matter was reopened for the hearing of additional evidence alleged to have been discovered since the original hearings. Such motion was granted and the matter reopened.

Viewing the action as a strictly statutory proceeding, the court is convinced that it was attempting to act beyond its powers in awarding the sum of $100.00 per month for 10 years or a total of $12,000.00 to the defendant wife by virtue of §11993 GC. The Courts of Ohio are inclined to view orders for such payments as alimony, and, hence, void. Greene v. Greene, 54 Abs 490, and Miller v. Miller, 56 Abs 280.

Further, the evidence revealed on both the original and later hearings that the only property of any consequence owned by the plaintiff husband was his present and future earnings. Again, in the light of such facts, the court is convinced that it was attempting to act beyond its powers in its award to the defendant wife. Jones v. Jones, 46 Abs 97.

Further, if there had been a separation agreement between the parties wherein the plaintiff husband agreed to pay alimony to the defendant wife, a decree of divorce to the plaintiff husband incorporating such an agreement would be valid and contempt proceedings would lie to enforce the alimony payments. Holloway v. Holloway, 130 Oh St 214; Vol. 2, No. 2, Ohio State Law Journal, p. 157; Speer v. Speer, 49 Abs 65. But there is no separation agreement between the parties to incorporate into such a decree; and, hence, contempt proceedings would not lie to enforce the court’s oral award to the defendant wife.

Further, there was sufficient evidence presented on the second hearing after this matter was reopened to convince the court that the plaintiff husband may place himself beyond the jurisdiction and enforecable orders of the court.

The primary intent of the court is to do justice between the parties but at the same time to render a valid and enforceable decree.

Bearing in mind that this proceeding is strictly a statutory one and, after a thorough study of all the evidence, the court is of the opinion that the defendant wife is entitled to. and a sufficient preponderance of the evidence warrants, the granting of some relief to the defendant wife and the minor child of the parties. The defendant wife is almost totally disabled physically, unemployable and requiring constant medical treatment.

There is insufficient evidence to prove the allegations in the answer and cross petition of the defendant wife as to any gross neglect of duty on the part of the plaintiff husband. Although the evidence introduced by the defendant wife in support of the allegations of extreme cruelty on the part of the plaintiff husband in her answer and cross petition, in the opinion of the court, may not meet the requirements of the preponderance because in some instances the extreme cruelty may have been provoked or at least aggravated by the defendant wife, yet it is strong evidence indeed. However, a preponderance of the evidence patently discloses that there were numerous instances of ill treatment of the defendant wife by the plaintiff husband and that there was a separation of the parties in consequence. It is on these grounds that this decree of alimony alone is awarded to the defendant wife.

Hence, the petition of the plaintiff husband is dismissed and a decree of alimony alone awarded to the defendant wife on her cross petition by which the plaintiff husband is ordered to pay to the defendant wife through the office of the Clerk of Courts of Darke County, Ohio, the sum of $21.25 plus poundage per week as permanent alimony and separate maintenance.

The custody of Brenda Jean Cortrecht, the minor child of the parties, is awarded to the defendant wife, with the plaintiff husband having the right to visit the child twice a month at such times as are convenient to all parties concerned.

The plaintiff husband is further ordered to pay to the defendant wife through the office of the Clerk of Courts of Darke County, Ohio, the sum of $10.00 plus poundage per week for the support of Brenda Jean Cortrecht, the minor child of the parties.

The costs of this proceeding are assessed against the plaintiff husband.

This decree is to become effective on the day of filing.

Exceptions are granted to the plaintiff husband and the defendant wife.