author: By HILDEBRANT, J.:

text:
    GREEN, Plaintiff-Appellant, v. ACACIA MUTUAL LIFE INSURANCE COMPANY, Cross-Appellant.
    Ohio Appeals, First District, Hamilton County.
    Nos. 7237, 7238.
    Decided May 15, 1950.

      Walter K. Sibbald, Cincinnati, for appellant.
    Marble & Vordenberg, Cincinnati, for cross-appellant.
   OPINION

By HILDEBRANT, J.:

In these two cases heard together in which there are cross-appeals, plaintiff recovered verdicts upon which judgments were pro forma entered for the face amount of two insurance-policies, issued upon the life of one George C. Green.

Plaintiff appeals from the following identical entry made-during term in each case:—

“This cause being heard on defendant’s motion to set aside-the verdict and judgment herein and to grant a new trial,, was argued by counsel and submitted to the court; on consideration whereof the court, having been requested by plaintiff to state the grounds of the finding, finds said motion well taken on the grounds that there is newly discovered evidence-material for the defendant and because the verdict and judgment are manifestly against the weight of the evidence, and' that the motion should be sustained.

“It is therefore ordered that the verdict and the judgment entered herein be, and the same are hereby set aside and vacated and a new trial of the cause is granted.”

Defendant’s cross-appeals are from the refusal of the trial court to sustain its motions for judgment made at the close-of all the evidence and for judgment non obstante veredicto.

Under the Constitution and statutes of Ohio in existence before Sept. 30, 1947, an appeal could not be taken from the-granting of a motion for new trial, unless the court in granting the motion, abused its discretion.

Under the former Constitution and statutes it was judicially-determined in Hoffman, et al. v. Knollman, 135 Oh St, 170:

“An order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final determination of the rights of the parties and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court has abused its discretion in granting such order.

“The jurisdiction of the Court of Appeals is conferred by Section 6, Article IV of the Constitution, and cannot be enlarged or curtailed by legislative action.

“The amendment of §13223-2 GC, (117 Ohio taws, 615), effective August 23, 1937, providing that ‘vacating dr setting aside a general verdict of a jury and ordering a new trial, is a final order,’ would, if given effect, enlarge the jurisdiction of the Court of Appeals, and is, therefore, in conflict with Section 6, Article IV of the Constitution.”

Effective January 1, 1945, Article IV, Section 6 of the Constitution was amended to read in part:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and' procedendo and such jurisdiction as may be provided by law to review, affirm, modify, set aside or reverse judgments or final orders of boards, commissions, officers or tribunals and of courts of record, inferior to the court of appeals within the district. * * *”

Effective Sept. 9, 1947, §12223-2 GC, was amended to read:

“An order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial, as provided in this title.

“When a court makes such order granting a new trial, setting aside or vacating such judgment, the court upon the request of either party, shall state in the order the grounds upon which the new trial is granted and the judgment vacated or set. aside.”

Sec. 11578 GC, has been amended so that as to actions commenced after October 11,1945, the effective date of such amendment, a motion for new trial is now addressed to the judgment pro forma entered by the court, when approved in writing and filed for journalization, rather than as before to the verdict of the jury or decision of the court.

Also effective October 11, 1945, the statutory definition of new trial in §11575 GC, was made to read:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court.”

We here consider whether or not under existing law, plaintiff may predicate his appeals on the orders granting new trials, irrespective of the manner in which the trial court exercised its discretion in granting the same.

In Y. M. Ry. Co. v. Youngstown, 147 Oh St, 221, it was held:

“Section 6 of Article IV of the Constitution of Ohio, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.

“Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

It will be noted that the amended constitution limits the power of the legislature to making provisions for review of “judgments and final orders” only. We take it that the terms “judgments and final orders” as used in the 1944 Constitutional Amendment have the meaning attributed to them by valid legislative definition and judicial construction obtaining at that time. Therefore, any order of board or court lacking in the essential attributes of a judgment or final order as those terms were understood and used in the 1944 Amendment to the Constitution may not now be clothed with those attributes by mere declaration on the part of the legislature. Any order, not a judgment, interlocutory in character, or lacking in finality is still not an appealable order and there exists no constitutional grant of power in the legislature to make it so.

In McAtee v. Western & Southern Life Ins. Co., 82 Oh Ap, 131, at page 135, this Court said:

“The Court of Appeals, under the 1912 amendment of Section 6, Article IV of the Ohio Constitution, was given jurisdiction to review only ‘judgments’ of courts of record inferior to the Courts of Appeals. By judicial construction, this term, ‘judgments,’ was extended to include such ‘final orders’ as had the dignity of judgments at the time of the adoption of the 1912 amendment. Chandler & Taylor Co. v. Southern Pacific Co., 104 Oh St, 188, 135 N. E., 620; Pilgrim Distributing Corp. v. Galsworthy; Inc., 148 Oh St, 567, 572, 76 N. E. (2d), 382.

“By an amendment to Section 6, Article IV of the Constitution of Ohio, the Legislature was given full power to provide for the review of ‘judgments and final orders’ of courts of record inferior to the Court of Appeals. This power was not as wide as that conferred by the Constitution of 1851 upon the Circuit Courts, which provided that the Circuit Courts should have ‘such appellate jurisdiction, as may be provided by law.’ Even when the Legislature acts it will be limited to provisions for review of ‘judgments and final orders.’ And the meaning of those terms as used in the amendment will be limited as before by the scope of their definition as understood and accepted at the time of the adoption of the amendment.

“The Legislature can no more designate an order final, which is not so in fact, than could it in the past, or now denominate an action a chancery case which did not meet the requirements specified by judicial construction. Burton v. Earhart, 144 Oh St, 334, 59 N. E. (2d) 37.”

It appears that under the 1944 Constitutional Amendment, while the Legislature might modify the jurisdiction of the Courts of Appeals with reference to judgments and final orders, it still may not enlarge that jurisdiction to include orders other than those coming within the true definition of judgments and final orders.

We refer to the entire opinion of Hoffman v. Knollman, supra, as pertinent to the consideration here and quote from page 181:

“The Constitution is the supreme law; it is the expression of the will of the people, subject to amendment only by the people, and neither the Legislature by legislative enactment, nor the courts by judicial interpretation, can repeal or modify such expression or destroy the plain language and meaning of the Constitution, otherwise there would be no purpose in having a Constitution.

“Though this court has interpreted the term ‘judgments’ so as to include ‘final orders,’ it has limited its application to acts or decrees of the court which give final effect to the central purpose or some independent branch of the litigation, finality being the touchstone in the determination of that quality.

“Merely applying a name to an object or thing, does not change its character. It is self-evident that the Legislature has no power to increase the scope of the jurisdiction of the Court of Appeals by enlarging the definition of ‘final order,’ unless such definition or specification of the term can still be construed to be the equivalent of ‘judgment.’ ”

The procedural change requiring entry of the judgment first and the motion being directed at that judgment is incidental only and cannot change the character of the action of the trial court in granting the motion.

The fact that in granting the motion the pro forma judg- ■ ment is vacated does not change the character of the action of the trial court so as to provide a foundation for review. In Chandler & Taylor Co. v. Southern Pacific Ry. Co., 104 Oh St, 188, the second paragraph of the syllabus is:

“An order vacating a default judgment upon motion of the defendant, filed at the same term, but more than three days after its rendition, is not a final determination of the rights of the parties and is not reviewable unless the court abuses its discretion in making it.”

At page 193, it is stated:

“The motion for vacation was made at the same term at which the judgment was rendered. Was the order of vacation though made at a subsequent term a final order which is subject to review? When the defendant filed its motion to vacate, its rights were fixed at that time, although its motion was not disposed of until after the term had expired (Niles v. Parks, 49 Oh St, 370). During that term the court had control of its journal entries, and any order made by it vacating a judgment and granting a new trial would not be erroneous unless there was an abuse of discretion upon the part of the court; First Natl. Bk. of Dunkirk v. Smith, 102 Oh St, 120.”

Again, at page 195, it is stated:

-“Under the principle laid down in the Continental and Dunkirk Bank cases, supra, a motion for vacation filed during the term the default judgment was rendered was held to be equivalent to a motion for a new trial, and the order of the court was not subject to error proceedings unless there was an abuse of discretion in the order vacating the judgment.”

The generally accepted definition of a final order is, “An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment.” An order grantirig a new trial has no such effect, so that it appears the statute itself, §12223-2 GC, is inconsistent in attempting to include such an order within the definition.

2 Am. Jur., 860, defining final order states:

“A judgment, order, or decree, to be final for purposes of an appeal or error, must dispose of the cause, or a distinct branch thereof, as to all the parties, reserving no further questions or directions for future determination. It must finally dispose of the whole subject-matter or be a termination of the particifiar proceedings or action, leaving nothing to be done but to enforce by execution what has been determined. In other words, a final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court, and must be final in all matters within the pleadings.”

The orders granting new trials fail to meet this test.

From the foregoing, we conclude that the order in each case, granting a new trial, herein appealed from, does not in effect determine the action and prevent a judgment, and is not, therefore, a judgment or final order reviewable by the Court of Appeals, unless it clearly appears that the trial court abused its discretion in granting the same.

The amendment of §12223-2 GC, effective Sept. 30, 1947, providing that, “An order vacating or setting aside a judgment and ordering a new trial, is a final order,” would, if given effect, enlarge the jurisdiction of the Court of Appeals to a review of other than judgments and final orders, to which the power of the Legislature is limited, and is, therefore, in conflict with Section 6 of Article IV of the Constitution.

As to the cross-appeals, an examination of the record discloses no errors, prejudicial to the defendant.

Finding no abuse of discretion on the part of the trial court in vacating and setting aside the judgments and granting the motions for new trials, the appeals stand dismissed, as not being predicated upon a final order.

Finding this judgment in conflict with the judgment of the Court of Appeals of the Eighth Appellate District of Ohio in the case of Haffner v. Schmeidl, 56 Abs, 77, we hereby certify the record in this case to the Supreme Court of Ohio for review and final determination.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


source: Caselaw Access Project

author: By JACKSON. J:

license: Public Domain

text:
    MIAMI MOTOR SALES, Inc., Plaintiff, v. SINGLETON, Defendant.
    Municipal Court, City of Dayton (Civil Division).
    No. 2698.
    Shaman, Winer & Shulman, Dayton, for plaintiff.
    Emanuel Nadlin, Dayton, for defendant.
   OPINION

By JACKSON. J:

The facts in this case show that the plaintiff had a note and a chattel mortgage given to plaintiff by the defendant, and said chattel mortgage was on a 1939 Dodge Tudor Sedan, Motor No. P 107097, Serial No. 904236.

The plaintiff in this case took a judgment on the note, levied execution on said 1939 Dodge automobile for the purpose of satisfying said judgment. The judgment was for $244.50 and the bailiff, having taken said 1939 Dodge automobile on execution, duly advertised the sale of said 1939 Dodge automobile and, on January 18th, 1950, duly sold said 1939 Dodge automobile to John Singleton, Sr., the defendant herein, for $82.00, and after deducting the costs of this action, applied to the judgment the sum of $48.90.

Thereupon, the plaintiff again levied execution upon said 1939 Dodge automobile, which was owned by the defendant John Singleton, Sr., who had purchased said 1939 Dodge automobile at said Bailiff’s sale.

This decision is now on a motion of defendant to dismiss the said second levied execution because the plaintiff had not complied with §8565-3 GC.

It is the opinion of this Court, and it is generally agreed, that the obvious purpose of §8565-3 GC is to stop the so-called sacrifice sales of chattel security, without giving notice of such sale to the mortgagor and giving him a reasonable opportunity to redeem the property that he mortgaged.

It is admitted in this case that the requirements in §8565-3 GC were not carried out by the plaintiff, and the plaintiff claims that §8565-3 GC does not apply to sales on execution after judgment on a promissory note secured by a chattel mortgage, when the goods subjected to execution are the same goods as are carried by the chattel mortgage.

The facts in this case show that the Bailiff of this Court took possession of said 1939 Dodge automobile on December 20th, 1949, and held said 1939 Dodge automobile from Dec. 20th, 1949, to the time of the sale, and that the sale of said automobile was duly advertised. The defendant, on the day the said 1939 Dodge automobile was advertised to be sold, was at the sale before the final bid was obtained, and before the said 1939 Dodge automobile was sold, because the defendant made the final bid and said 1939 Dodge automobile was sold to the defendant.

The Court is of the opinion that the literal requirements (if necessary) to the General Code of Ohio, as to notice by registered mail to the mortgagor at the address given in the mortgage, would not be as effective as was the actual notice this defendant received, and showed that he received said actual notice by being present and buying at public auction said 1939 Dodge automobile at execution sale of said 1939 Dodge automobile.

The defendant, or his agent, failed to take any steps to redeem the property between the date of the levy, December 20th, 1949, and the date of the sale, January 18th, 1950, and the defendant purchased at said sale at public auction, said 1939 Dodge automobile without objection, comment or inquiry, and bought said 1939 Dodge automobile at the price then and there determined by said auction sale.

The Court is, therefore, of the opinion that the defendant effectively waived any rights that he might have had under §8565-3 GC, and that the defendant is estopped from seeking immunity from a future execution, or other proceedings to enforce the deficiency, by virtue of the failure of the plaintiff in its literal pursuit of the precise methods of giving notice prescribed by the General Code, even if applicable.

The Court is further of the opinion that §8565-3 GC does not apply to the situation described herein. The statute sets forth certain requirements which must be complied with by a chattel mortgagee who repossesses and sells the chattel property carried by his mortgage or precludes him from pursuing or collecting any deficiency remaining after the sale.

In determining the applicability of this statute, the first three words are “Any chattel mortgagee.” In other words, the taking out of possession and sale is prohibited by the statute and there must be both a taking out of possession and sale. Therefore, to apply this statute to the situation in question is to say that the taking and the sale were acts of the plaintiff chattel mortgagee, i. e. — that the bailiff was the agent of the plaintiff. This, in the Court’s opinion, is not so.

A writ of execution is a written demand to the bailiff, directing him to execute the judgment of the Court. An execution’s purpose is to carry into effect, or coerce satisfaction of the judgment of the Court.

Executions are used by the Court in many cases to connote the method by means of which a judgment or a decree of the Court is enforced.

The bailiff is the ministerial office of the Court, not the agent of the plaintiff, in levying execution and selling the property described in the writ.

Black’s Law Dictionary, 2nd Ed. page 461.

Bouvier’s Law Dictionary, 8th Ed. page No. 1112.

Kelly v. Vincent, 8 Oh St 415.

Earl v. Shoulder, 6 Ohio 409.

The requirements and procedure to be followed in an execution sale are prescribed by statute and must be rigidly adhered to, if the sale is to be valid. Sec. 11655 GC et seq. To require the bailiff to comply with the provisions of §8565-3 GC, as to the notice to be given the chattel mortgagor, would be both impractical and impossible, and would in effect be a modification of the statutory provisions referred to above, where the chattel property subjected to execution is also carried by a chattel mortgage held by the plaintiff as mortgagee.

From the above, the Court is of the opinion that the judgment creditor did not take the chattel out of the possession of the judgment debtor by procuring the issuance of a writ of execution, even though this was done by invoking the processes of the Court.

The only serious obstacle in this case is the use of the words in §8565-3 GC, “by seizure or repossession.” The Court is of the opinion that the words “seizure or repossession” means seizure or repossession by a mortgagee, it being generally agreed that the obvious purpose of §8565-3 GC, is to stop the sacrifice sales of chattel security, without notice to the chattel mortgagee.

The Court is of the opinion that when, by -order of this court, a bailiff of this Court levies an execution, advertises and sells the chattel at public auction as advertised, this sale is not the so-called sacrifice sale, the purpose for which §8565-3 GC was enacted.

As has been previously stated, the purpose of the statute under consideration is to prevent the seizing and selling of property covered by chattel mortgage, by the chattel mortgagee, at a sacrificed price, and without adequate notice to the chattel mortgagor, such sales being usually conducted with no notice to the chattel mortgagor and without judicial action or sanction.

In the situation under consideration here, the statutes cited above regulating execution sales, were complied with, and the notice required thereby was given. Such notice has long been considered adequate to protect the interests of the judgment creditor. It is therefore the opinion of the Court that §8565-3 GC was not intended to apply to the situation under consideration, and that an execution sale is not such a sacrifice sale as the legislature sought to guard against in enacting §8565-3 GC.

It is the opinion of this Court that the bailiff or other officer of the Court would find it impractical or impossible to hold a public auction sale on executions in the usual manner because, under §8565-3 GC, the giving of notice, etc, are all required to be done by the mortgagee by giving notice, etc. to the mortgagor, and there is no requirement that a copy of said notices required in §8565-3 GC be given to the bailiff who is conducting said auction sale. If the bailiff conducting said auction sale is not given any notice of the minimum price set forth in the written notice given by the mortgagee to the mortgagor, how can the bailiff conducting said auction sale comply with the last sentence of §8565-3 GC, which reads as follows:

“At the time and place mentioned in such notice, the mortgaged property shall be sold to the highest bidder if his bid equals or exceeds the minimum price set forth in the written notice given the mortgagor.”

Therefore, the seizure is made by the Bailiff by direct order of the Court, and not by the plaintiff. Sec. 8565-3 GC does not tell us by whom the seizure is made, but the §8565-3 GC gives only duties to be done by the mortgagee, so that said section does not apply to the ministerial officers of the Court because it does not add to or take away any duties of the Court or its ministerial officers.

THEREFORE, the Court will OVERRULE the motion of the defendant.


author: By WISEMAN, J.

text:
    SHAMAN, Plaintiff-Appellant, v. ROBERTS etc., Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4373.
    Decided February 6, 1950.

      Robert L. Mellman, Columbus, for plaintiff-appellant.
    ' Paul L. Selby, Jr., Robert B. Morrison, Columbus, for defendants-appellees.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Municipal Court of Columbus, Ohio.

The plaintiff’s assignor, The Ike Topper Structural Steel Company, took a default judgment on a liquidated claim against the defendant, Ansel Lorimer, on November 21, 1940. On June 4, 1949 the defendant filed his petition to set aside the judgment on the ground that he had not been - served with process. The trial court set aside the default judgment and from this ruling this appeal is taken.

The plaintiff-appellant, Reva Shaman, the assignee of Ike Topper Structural Steel Company, assigns two grounds of error:

First: That the trial court erred in overruling the plaintiff’s demurrer to defendant’s petition to vacate the judgment.

Second: That the order of the trial court in vacating the judgment was contrary to law, not sustained by sufficient evidence, and was contrary to the manifest weight thereof.

To the defendant’s petition to vacate the plaintiff filed a demurrer on the ground that said petition was not filed within three years after the entry of the judgment. Plaintiff contended that the defendant’s petition to vacate was grounded on an irregularity as provided in Division 3 of §11631 GC, and that under the provisions of §11640 GC, proceedings for the vacation of a judgment under Division 3 of §11631 GC, must be commenced within three years after the date of the judgment. The plaintiff cites in support of this proposition Corry v. Campbell, 34 Oh St 204; Baylor v. Killinger, 44 Oh Ap 523, 186 N. E. 512; Pierce v. Egbert, 16 Abs 300. We are not required to construe §11640 GC and to determine whether the petition to vacate was required to be filed within three years after the date of the judgment or, as is contended by the defendant, within three years after the defendant has notice of the judgment. The petition to vacate alleges facts which would render the judgment void and not voidable. Secs. 11631 to 11643 GC, inclusive, apply to voidable judgments only, and have no application to a void judgment. Snyder v. Clough, 71 Oh Ap 440, 50 N. E. (2d) 384. See also, O’Dell v. O’Dell, 78 Oh Ap 60, 64 N. E. (2d) 126. The petition to vacate alleges that “said judgment was obtained without any service of process upon him.” Where there is no service of process the court is without jurisdiction to render judgment. Any judgment which is rendered, where no process has been served, is void ab initio. Hayes v. Kentucky Bank, 125 Oh St 359, 181 N. E. 542; Kingsborough v. Tousley, 56 Oh St 450, 47 N. E. 541; Levy v. Foley, 75 Oh Ap 220, 61 N. E. (2d) 615; Vol. 49 C. J. S. pp. 55, 480; Vol. 23 O. Jur. p. 836. The allegation in the petition is good against demurrer and Secs. 11631 to 11643 GC, inclusive, have no application. The demurrer was properly overruled.

The record shows that the summons was served on the defendant by mail as provided in §11297-1 GC. It is conceded that the Municipal Court of Columbus adopted a rule authorizing service by mail and that this rule was in full force and effect at the time service was made. The record shows that a true copy of the summons was deposited in the mail and addressed to the defendant at his correct address, and that the envelope was not returned by the postal authorities as undelivered. The pertinent facts in this case are brought before this Court in the form of a stipulation, which contains a statement that

“the defendant, Ansel Lorimer, testified as follows: ‘That prior to and during the month of September, 1940, he resided with his family at No. 28 Glencoe Road, Columbus, Ohio, and that he had resided at said address continuously up to the date of his testimony; that he had never received any summons or notice of any hearing on the original petition filed herein; that it was the practice of the family to place all mail addressed to defendant Lorimer in a certain place in the home; that no summons or notice was ever in such place; that he had never seen any mail containing such summons or notice and that the first notice he received of any proceedings in this case was when he was served with an order to show cause why the said judgment should not be revived.’ ” (Emphasis ours.)

The facts of record on their face show that service was made in conformity to the provisions of §11297-1 GC. These facts establish a presumption of valid service, but this presumption is rebuttable. It is conceded that it is not a necessary prerequisite to valid service that the defendant receive the envelope containing the summons. However, the evidence adduced by the defendant must be given weight in determining whether the presumption in favor of valid service has been rebutted. The defendant testified that it was the practice to place mail addressed to him in a certain place in the home, and that the envelope containing the summons was never at that certain place.

The trial court was the sole judge of the credibility of the witness and the weight to be attached to his testimony. It was within the province of the trial court to draw any reasonable inference from the testimony given. A reasonable inference may be drawn that since the envelope was not deposited in the customary place in the home, it was not delivered to the defendant’s residence. The trial court found that the evidence presented by the defendant rebutted the presumption in favor of valid service. We are not disposed to disturb this finding since it is supported by the evidence.

The judgment of the trial court in sustaining the petition to vacate the judgment was not contrary to law, was sustained by sufficient evidence and was not contrary to the manifest weight of the evidence.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By MATTHEWS, J.:

text:
    MULLINS, Plaintiff-Appellee, v. BROWN, Defendant-Appellant.
    Ohio Appeals, First District, Clermont County.
    No. 191.
    Decided April 24, 1950.

      Ely, White & Davidson, Batavia, for plaintiff-appellee.
    Carl L. Meier, Cincinnati, Nichols, Speidel & Nichols, Batavia, William J. Walsh, Cincinnati, for defendant-appellant.
   OPINION

By MATTHEWS, J.:

This is an action for breach of a contract to lease a specified portion of a farm known as Maplewood Farm and an unidentified portion containing from fifty to eighty acres of a farm known as Arcadia Farms containing one hundred and sixty-eight acres. That portion of the contract relating to the Maplewood Farm was fully performed and a final settlement made by the parties and is not involved in this litigation. We are concerned only with those matters relating to the leasing of a portion of the Arcadia Farms.

The issues of fact were submitted to a jury in the Common Pleas Court and it returned a verdict for the plaintiff for $2550.00. On defendant’s motion for a new trial, the court required a remittitur of $1000.00, which was accepted by the plaintiff and judgment was thereupon rendered in his favor for $1550.00. It is from that judgment that this appeal was taken. Various errors are assigned.

(1) The plaintiff alleged that prior to April 1st, 1948, the defendant agreed to lease to him for the farming season of 1948-1949 no, less than fifty acres upon which he was to plant corn and soy beans, furnish a team of horses and tractor, and also by the terms of their agreement the parties were to operate a dairy. There is no promise on plaintiff’s part to do anything as a consideration for. the defendant’s promise, but it is alleged that the plaintiff moved into the house on the Maplewood Farm, obtained a three months’ leave of absence from his job as a railroad brakeman, and in various other ways prepared to take advantage of the defendant’s promise. Whether this change of position after, and in reliance on the agreement is a'sufficient consideration in law, we do not stop to consider. Certainly, if a contract was entered into, it was not the consideration contemplated by the parties at the time. The consideration was the mutual promises of the parties.

But the first contention of the defendant-appellant is, that the minds of the parties never met and that, therefore, no-contract came into existence. After reading the evidence, we are unable to agree with counsel. It is true that the evidence is conflicting, but there is substantial evidence that the plaintiff agreed to lease not less than fifty acres and not more than eighty acres and cultivate and harvest not less than twenty-five acres of corn and twenty-five acres of soy beans, and operate a dairy, and the defendant agreed to designate said portion of the Arcadia Farm and lease it to him and furnish the team of horses and the tractor, and bear certain other expenses. They agreed that the net profits should be divided equally. The agreement of the parties in great detail was set forth in a written memorandum prepared in duplicate by the defendant. The introductory sentence is: “The following is my understanding of our agreement as outlined over the phone last night.” It is true it was not signed and it bears no indication that it was the intention of any one that it should be. There is substantial evidence that the plaintiff concurred in the statement that it correctly set forth the agreement, and that he in fact did sign one copy which the defendant took. There are many circumstances corroborating the plaintiff’s testimony and indicating that both parties understood that they were bound. The issue was for the jury.

(2) At the time this contract was entered into the entire Arcadia Farms was leased to one Foster, who apparently had sowed some wheat on a portion, and a dispute arose between him and the defendant as to the date of the expiration of his lease, Foster contending that his lease covered the entire year of 1948, and the defendant contending that it expired on April 1st, 1948. Foster refused to vacate, and that fact is assigned by the defendant as a legal excuse for not delivering possession of the fifty to eighty acres to the plaintiff. Counsel relies upon a line of cases of which Hannan v Dusch, 70 A. L. R. (— Va.-, 153 S. E. 824) 141, and Snider v. Deban, 249 Mass. 59, 144 N. E. 69, are typical, holding that a lessor is under no implied obligation to put his lessee into actual possession at the beginning of the term, and that the wrongful exclusion of the tenant by a third person is no breach of any obligation of the lessor, in the absence of an express agreement by him to put the lessee in possession. An examination of the authorities discloses that there is almost an equal division on this subject. Perhaps a slight preponderance favors the English rule that it is the duty of the lessor, where the term is to begin in futuro, as in this case, to oust any one who may be in possession, so that the lessee may take peaceable possession. The state of the authorities is summarized in 32 Am. Jur., at 178 and 179:

“Although the authorities are not in accord, some courts in this country take the view that the extent of the lessor’s covenant to give possession is that the possession shall not be withheld either by himself or by one having a paramount title. Under this rule, it is sufficient if the premises are open to entry without an obstacle in the form of a superior right which will prevent the lessee from obtaining actual possession. Accordingly, a lessor is not liable to a lessee for the wrongful holding over of a former tenant so as to withhold possession from the second lessee at the beginning of his term. Other authorities in this country, as well as the English courts, take the view that the implied obligation of the lessor where the term is to commence in futuro extends to a wrongful withholding of possession by a third person at the time of the commencement of the lessee’s right to possession. Under this rule, the lessor impliedly covenants to put the lessee in possession at the beginning of the term as against a prior tenant wrongfully holding over; he must see that the first tenant vacates the premises at the time the lessee’s right of possession accrues, and is liable in damages to the lessee if he permits that first tenant to hold over.”

The Supreme Court of Ohio has not expressed itself on this subject. There have been some references to it in the decisions of the lower courts. These are cited as authorities for the text in 24 O. Jur., 880, and 881, as follows:

“The lessor is obligated not merely to give the lessee a right of possession free from any other paramount title; he is obligated also to deliver possession to the lessee. There is said to be an implied covenant on the part of the lessor to put the lessee in possession. Obviously, the lessor himself must not, by remaining in possession, prevent the lessee from taking possession. It is his duty to eject, and he is liable to the lessee for the possession of, a tenant under a valid prior lease, or a tenant holding over wrongfully, .or under color of right. Although the authorities are divided, the better view is that the lessor is liable to the lessee for the wrongful possession of any person at the commencement of the lessee’s term.”

One of the cases cited in support of the text is Miller v. Innes, 3 N. P. (n. s.) 50, which was affirmed by the Circuit Court in 3 O. N. P. (n. s.) 54, which was in. turn affirmed by the Supreme Court in 74 Oh St, 476, without opinion. The action was for rent. The plaintiff had leased to the defendant a dwelling house for a year at a rental of $300 per year, payable in monthly installments. The lease provided that the lessee should also have the use of space in a large stable sufficient for one horse and one carriage. The lessee abandoned the premises at end of seventh month and the action was for rent for the remaining five months. The lessee defended on the ground that when he went to the stable on the first day he was refused admittance to the stable for his horse and carriage and, after subsequent attempts and refusals, he stopped any further attempts and rented another stable. The Common Pleas Court took notice of the conflict..in. the. decisions., in different jurisdictions, and then said: “In consideration of the principles and reasons adduced in these various cases I incline to the English doctrine and adopt the reasoning of King v. Reynolds, 67 Ala. 229.” The court also called attention to a feature of the case that would prevent the application of the contrary doctrine, and that was the provision relating to the space in the stable for the lessee’s horse and carriage, and on that subject said: “I am moreover of the opinion that in the case at bar there would be no conflict of authorities, for this reason, that by the terms of the lease the particular space in the large barn alloted to the lessee was not specified therein, and, therefore, remained to be indicated and set apart by the lessor. It thereupon became the duty of the lessor to set aside that space because the lessee would have no right to maintain any action to eject any particular person — for the reason that —he could not specify in his action for ejectment the premises to which he was entitled.” The Circuit Court agreed with the Common Pleas Court in both respects, saying at page 54 of 3 N. P. (N. S.):

“Recognizing the conflict of authority on the main point, we are, however, of the opinion that the best reasoning is in favor of the contention that it is the landlord’s duty to clear the way for the entrance to possession of the property by the lessee, on the first day of his term. See opinion of Stone, Jr., in King v. Reynolds, 67 Ala., 229, 233.

“Furthermore, in the case at bar it was impossible for the lessee to get possession of the stable room, because same had not been designated and described to him.”

As already noted, the Supreme Court affirmed this judgment without opinion. As there were only these two possible grounds for the lower court’s decision, it would seem that the affirmance was necessarily on one or the other.

What was said in Miller v. Innes, supra, is equally applicable to the facts in this case. Here was a lease for an unidentified fifty to eighty acres in a tract of one hundred and sixty-eight acres for one farming season. What the plaintiff contracted for was possession of at least 50 acres. If he was not placed in possession, he would get nothing under the contract. If he was required to litigate to obtain possession, the farming season might have entirely passed or be so far advanced as to make possession valueless before he could obtain possession. Furthermore, in this case as in Miller v. Innes, the part he was to have had not been identified by the lessor and until it had been, no title could pass to him and he could maintain no action to recover possession against anyone.

Bexley v. Davenport, 44 S. E. (2d.) (Ga.) 388, involved a kindred principle. The owner of a storeroom and fixtures leased them to the plaintiff while they were in the possession of a purchaser of the stock of goods of a prior lessee. The plaintiff sued the purchaser of the stock of goods for rent during his occupancy. The court at page 390 said:

“However, where the owner of lands does not convey the title or an estate therein but gives the lessees only the usufruct, as in the present case, such lessees may not maintain an action for damages or one to recover possession from a tenant of the owner who is alleged to be holding over and beyond the term for which he rented the premises, but the lessees must look to the owner to place them in possession of the premises and may retain an action for damages against him for a refusal or failure to do so. ‘Where the lease contains no stipulation to the contrary, there is an implied covenant on the part of the lessor that the premises shall be open to entry by the lessee at the time fixed by the lease for him to take possession and, if possession is then wrongfully withheld from the lessee, he can maintain an appropriate action against the lessor, * * *’ ”

It should be noted that this record does not indicate that Foster’s possession of Arcadia Farms was wrongful. It does show that the defendant sued him in ejectment and that the parties compromised. The issue was not decided. Certainly, according to all the authorities if Foster was in possession rightfully under a lease from Brown and the plaintiff was thereby excluded, that would be a violation of the implied term in the lease that the lessor had not done and would not do anything that would interfere with the lessee taking and holding possession.

Our conclusion is, that Foster’s possession and the defendant’s inability to dispossess him constituted no defense.

(3) Finally, we come to the question of the measure of damages. The court charged the jury that “The damage must flow naturally and directly from the breach of the contract, that is, it must be such as might be presumed to follow the breach if there was a breach. It must not be remote, but the proximate consequence of the breach. — In measuring the damage of the plaintiff, should you find for the plaintiff under the rules I have given you, you will take into account the profit, if any, he would likely receive as of that farming year under this contract and arrangement, had the contract not been breached.”

There is evidence of the gross income that might be expected provided weather and all other conditions proved to be favorable and the size of the verdict seems to indicate that as its basis without giving the defendant his share. There is no evidence of the cost that would necessarily be incurred in producing that income. In other words, there is no evidence of the probable net profit that would have been realized. The trial court found the amount of the verdict to be excessive, but we fail to discover any basis in the evidence upon which a reduction of $1000.00 or any other sum could be predicated.

The measure of damages for violating a share-cropper’s contract by refusing him entrance or later evicting him has been the subject of great diversity of decision in the various jurisdictions, but in Ohio the rule seems to have been laid down in 1866 in the case of Rhodes v. Baird, 16 Oh St, 573, and has never been qualified since. We quote the first three paragraphs of the syllabus:

“An action was brought on a contract, by which the defendant agreed to make a lease, for the term of ten years, to the plaintiff, of certain lands, on which to plant and cultivate a peach-orchard. The breach consisted in the failure of the defendant to make the lease, and in his causing the plaintiff, within two years from his taking possession, to be evicted from the premises, but after the peach-trees were planted. On the trial the plaintiff was permitted to give evidence of the probable profits that might in future be realized from the orchard, judging by the number of crops and the price of peaches in the county for the last ten or fifteen years: HELD—

“1. The evidence as to the probable future profits was incompetent to be given in chief by the plaintiff, as furnishing a-basis for the assessment of damages by the jury, such evidence being uncertain and speculative in its nature, and in a great degree conjectural.

“2. To the extent that the damages depended on the loss of the use of the property for the term, its market value at the time of the eviction, subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had no general market value, its value should be ascertained from witnesses whose skill and experience enabled them to testify directly to such value, in view of the hazards and chances of the business to which the land was to be devoted.”

It is the general market value, if any, of the lease or contract at the time of the breach, and if, perchance, it had no general market value, its value determined on the testimony of experts testifying directly to its value in view of the hazards and chances of the business to which the land was to be devoted. The jury was not instructed that this was the measure of damage. The evidence on the subject of profit and expense was not so limited. The only instruction given left it to the jury to base its verdict upon probable profits, which was erroneous.

We find that the court erred in its charge on the subject of the measure of damages and in the admission of evidence on the subject of damage.

It should also be noted, in view of the fact that the case must be retried, that the charge contains contradictory statements on the burden of proving a discharge by settlement. In one place, the burden is placed on the plaintiff to prove there was no settlement, and in the other place, the burden is properly placed on the defendant.

For these reasons, the judgment is reversed and the cause remanded to the trial court for further proceedings according to law.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


text:
    CARSON, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7198.
    Decided January 23, 1950.
    John A. Kiely, R. Edward Tepe, Cincinnati, for plaintiff-appellant.
    Marble & Vordenberg, Cincinnati, for defendant-appellee.
   OPINION

By MATTHEWS, J.:

This is an appeal in an action to recover on provisions for double indemnity in life insurance policies in the event death should result directly and independently of all other causes, of bodily injuries caused solely by external, violent, and accidental means. Upon proof of death, the defendant paid the amount due upon death regardless of the cause, leaving only the issue of whether the death had resulted from external, violent, and accidental means, upon which the liability for the additional sum depends.

At the trial in the common pleas court it developed that there was no dispute that death of the insured was caused by external and violent means. This left the issue of whether death had resulted from accidental means.

At the close of the plaintiff’s evidence, the defendant moved for an instructed verdict, which was granted by the court. Judgment was entered on this verdict and it is from that judgment that this appeal was taken.

There is substantially no dispute as to the data upon which it is necessary to predicate our conclusion as to whether the insured’s death resulted from accidental means.

In her brief, the appellant summarizes the evidence as follows:

“James R. Carson was 28 years of age and married, He had two children, a boy of six and a girl five years of age. He had suffered from phlebitis, but had been in good health and had not consulted a physician since Christmas, 1947. He was cheerful and in good spirits. On May 6, 1948, an hour or so before his death, he ate a hearty breakfast of cereal, ham and eggs, and when he left home he promised his little daughter a toy.

“He was the owner and operator of a gasoline service station and auto repair business. There his business was going on as usual and he was his usual cheerful self. Mr. Carson had planned work ahead and had planned a trip over Decoration Day to see his mother. On his arrival there he was jolly with Ballard Lamb, his employee, checked the work to be done and then sent Mr. Lamb after a fan belt for a repair job on hand. Mr. Carson was seated at his desk looking over mail when the helper left the building. Just as Mr. Lamb left the office and was a step from the door, he heard a shot and dashing in, he found Mr. Carson standing, bent over, and holding his chest, with the revolver lying on the floor in front of the desk.

“The revolver, which caused the death, was a 1917 model gun. It would fire if the hammer were struck. It was cutomarily kept in the lower drawer of the desk. On May 5th, however, a city police patrolman, Howard W. Jackson, had come in uniform to Mr. Carson’s place of business to work on his own automobile. To give the patrolman a safe place to put his own gun and belt, Mr. Carson had removed his own gun from the bottom drawer and put it in the top drawer. That evening when Patrolman Jackson left Mr. Carson’s gun was not replaced, but remained in the top drawer.

“On May 6th, 1948, after Mr. Carson’s death his father-in-law found in his automobile the toy he had promised his little girl and another for his little boy.’’

A reading of the bill of exceptions leads to the conclusion that this is a fair summary of the evidence.

The appellee’s summary is much longer. It'goes more into details, relating to the state of the insured’s health and his financial condition. But certainly the evidence would justify the conclusion that the insured was in reasonably good health, and that while he was not very prosperous financially, there was nothing in the condition of his health or his business that would create a spirit of desperation in a normal man. And certainly there is abundant evidence that the insured was in no such mood, but, on the contrary, was cheerful right along up to the last time he was seen just a few seconds before he received the shot from which he died.

The only fact which we would add to appellant’s summary of the facts is that these insurance policies were issued on January 8th, 1943, more than five years before insured’s death.

The trial court reached the conclusion that “there has not been a single circumstance in this case that would warrant you in finding that this was an accidental death” and, for that reason, the motion for an instructed verdict was sustained.

The fatal wound was inflicted when the insured was alone. When he was last seen prior thereto he was seated in a swivel chair in front of his desk engaged in opening his mail. The revolver was in the desk. No one entered the room before the shot was fired. No one saw the insured with the revolver in his hand or saw him take it from the desk drawer or handle it in any way whatsoever. Still we can conclude with certainty that he did handle it, and that as a result of his handling it, it was discharged and the bullet was caused to pass through his body. We can say that any contrary conclusion would be so unreasonable that reasonable persons would not differ about it. But that is not enough to exclude liability on these policies as a matter of law. To do so, we must go further and draw the conclusion that the insured intended to discharge the revolver and intended to cause the bullet to penetrate the vital organ or organs of his body in order for the evidence to show that the means of his death was not accidental. Of course, if that was what he did and intended, the means would not be accidental, although the result might conceivably be, and, as these policies create liability not on accidental death, but only on death from accidental means, no liability would result. Stated shortly, can we say on the acts and intentions shown by the evidence the insured intended to and did commit suicide?

From the earliest times, suicide has been condemned. The great religions denounce it as immoral, and in early English law the felo de se forfeited his estates and was given an ignominious burial. That attitude toward self-destruction lingers, in a meliorated form in American life today. To hold that the insured committed suicide, we must find that he disregarded this historic interdiction and also the strong instinct for self-preservation that controls most men in the things they do. Without any evidence of what actually happened while the insured was in that room at the time the shot was fired, we do not think we can so hold. There is nothing in the evidence tending to indicate that the insured had formed an intent to commit suicide. An affirmative finding that he intended to kill himself would be unsupported by the evidence. Would a contrary finding be equally lacking in evidential support? We think not.

This question was under consideration in the case of Mitchell v. Industrial Commission, 135 Oh St, 110. The widow of a night watchman asked compensation for herself and children on account of the death of her husband in the course of his employment. The night watchman died of a bullet wound inflicted at night while he was alone on the premises. The circumstances indicating accidental death were very meager. The Industrial Commission denied compensation. On appeal, a jury found for the plaintiff and judgment was entered thereon. The Court of Appeals affirmed this judgment. The Supreme Court granted a motion to certify, and, on final hearing, affirmed the judgment. The second paragraph of the syllabus to that case, referring to the presumption against suicide, is:

“Such presumption is in the nature of evidence and operates to its fullest extent only where there is no proof as to whether a death, by external and violent means, was accidental or suicidal.”

The Court reviewed the decisions in other jurisdictions on the nature of the presumption against suicide, and, at page 114, quoted with apparent approval from Provident Life & Accident Ins. Co. v. Prieto, 169 Tenn., 124, 83 S. W. (2d.) 251, 103 A. L. R. 191, as follows:

“ ‘This presumption is not displaced by proof of circumstances which merely tend in a greater or less degree to show suicide, but in such case it is a question for the jury whether they overturn the presumption.’ ”

At page 115, the Court said:

“In the instant case the evidence before the court showed that the instrument with which the decedent came to his ■death had been furnished by his employer. It was used by him in his work as a night watchman. There was some evidence ■of disorder and confusion. There was no motive for suicide shown. Mitchell was found in the building which he was required to watch. With such evidence pointing in the direction of an accidental death, an issue for the jury was presented in the instant case. There was other evidence strongly indicating suicide — the fact that the doors of the building were all locked, that there were four loaded cartridges in the revolver and one empty shell, that the bullet causing the fatal wound came from the same revolver, that the bullet traveled in an almost horizontal direction, and that Mitchell’s body was almost under a wash stand where there was a mirror. .All of these circumstances, while possessing considerable probative force, nevertheless were not of such a convincing character as to warrant the court taking the issue from the .jury.”

In Hassay v. Metropolitan Life Ins. Co., 140 Oh St, 266, the facts bear no resemblance to the facts in the case at bar, but the same provision of the defendant’s policy was the basis of the plaintiff’s claim. There was a verdict and judgment for the defendant. This judgment was affirmed. The Court •cited Mitchell v. Industrial Commission, supra, with approval, and reiterated the principle of that case in the first paragraph of the syllabus, in which, after declaring that the burden rested upon the plaintiff to prove that death resulted from external, violent, and accidental means, said: “Upon a showing of death by external and violent means, the law raises a presumption that death was accidental, and upon such showing aided by the presumption, a pfima facie case for plaintiff is made.”

In Hrybar v. Metropolitan Life Ins. Co., 140 Oh St, 437— a general verdict was returned for the plaintiff in an action on this same provision in defendant’s policy. The court instructed the jury that suicide was an affirmative defense, the burden of proving which was on the defendant. On appeal, the Court of Appeals reversed the judgment for this error and entered final judgment for the defendant, based on its conclusion that the defendant’s motion for an instructed verdict should have been sustained. The Supreme Court sustained a motion to certify, and, on final hearing, held with the Court of Appeals as to the burden of proof, but against it as to the ruling on the motion for an instructed verdict. Consequently, the case was remanded to the Common Pleas Court for further proceedings. In reaching this conclusion the Supreme Court simply applied the principles enunciated by it in Hassay v. Metropolitan Life Ins. Co., supra, which it had decided at. the same term of court.

Brunny, Admx. v. Prudential Ins. Co., 151 Oh St, 86, — did not. involve intentional self-destruction. It related to the presumption of death from absence. The similarity of the presumption, against suicide caused the court to comment on such cases; including Mitchell v Industrial Commission, supra. The court, found that the evidence was so clear and overwhelming that, Brunny was still alive that there was no room for the operation of the presumption of death from absence and, therefore, rendered final judgment for defendant. It held that any presumption from absence was completely rebutted, that “reasonable minds could not fairly conclude that the presumption should stand.” There is nothing in the case at bar that would, require reasonable minds to conclude that the presumption-against suicide should not stand.

This same effect of the presumption against suicide was; applied in the recent case of Shepherd v. Midland Mutual Life Ins. Co., 152 Oh St, 6, the 6th paragraph to the syllabus-of which is:

“Where it is shown that death resulted from bodily injury-caused by violent and external means, there is a presumption that death did not result from suicide, intentional self-infliction of injury, the criminal assault of another, or other nonaccidental means, but that the death was due to accidental means, in the absence of affirmative proof to the-contrary.”

For these reasons, we are of the opinion that the plaintiff produced evidence of death by external and violent means and that there was no evidence of nonaccidental means of such a nature as to require the court to conclude as a matter of law that the presumption against intentional self-destruction had been neutralized.

Our conclusion is, that the court erred in sustaining the defendant’s motion for an instructed verdict at the close of the plaintiff’s evidence, and in entering judgment for it.

The judgment is reversed and the cause remanded for further proceedings according to law.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By THE COURT:

text:
    STATE ex LITTERST, Plaintiffs-Appellants, v. SMITH, Commr. et, Defendants-Appellees.
    Ohio Appeals, Fourth District, Pike County.
    No. 160.
    Decided May 12, 1950.
    W. T. Reed, Waverly, for plaintiffs-appellants.
    Wray Bevens, Pros. Atty., George D. Nye, Waverly, Wm. E. Knepper, Columbus, for defendants-appellees.
    (ROSS, PJ, HILDEBRANDT & MATTHEWS, JJ, of the First Appellate District, in the Fourth District by designation.)
   OPINION

By THE COURT:

This is an appeal on law and fact from a judgment in an action by relators as taxpayers to enjoin the county commissioners, the county auditor, and the county engineer from participating in the expenditure of any funds of Pike County for the maintenance, repair, or upkeep of two roads identified by name as “Stone Quarry” and the “Lazar and Bricker” Roads.

The defendants in the beginning contested the right of the plaintiffs as taxpayers to maintain this action on the ground that the Prosecuting Attorney had not refused to institute the action, but later the defendants withdrew the objection and waived any defense they might otherwise have because of any defect in the request to the Prosecuting Attorney or of lack of proof of failure on his part to proceed. Later still, the defendants by cross-petition prayed the Court for a judgment declaring that said roads were duly dedicated and established public roads upon which public funds could be expended for their maintenance and for other relief. In view of this cross-petition and the waiver there is no longer any issue in this case as to the capacity of the relators to maintain this action.

The case is submitted to this Court upon the pleadings, the exhibits, and a transcript of the evidence introduced or offered in the trial court, supplemented by the testimony of one of the trustees of Pee Pee Township that the trustees had done nothing and did not contemplate doing anything in the nature of exercising jurisdiction over either of those roads.

(1) A review of this record convinces us beyond doubt that Pike County has title to an easement for highway purposes on and over a strip of land 40 feet wide and that the roads that have been marked out and established are within the limits of that 40 foot strip.

Long before Pike County had acquired any easement or any right in the public had arisen, the public, by sufferance of the private owner of the land, had when occasion arose, used a path or trail following in a general way the same course as these 40 feet strips. The right of the public did not accrue, however, until the month of June, 1941, as to the Stone Quarry Road, and June, 1945, as to the Lazar-Bricker Road. At those times, the owners of the fee simple title to the land executed and delivered general warranty deeds to the County of Pike, conveying to it perpetual easements and right of way for public highway and road purposes on and over these strips forty feet wide. The County Commissioners-accepted Stone Quarry Road deed and it was duly recorded in the deed records of the County. The Lazar-Bricker Road deed was manifestly used in preparing the minutes of the County Commissioners, but was not recorded in the Recorder’s Office. It was apparently lost, and, because of that, another deed was executed and delivered at a later date.

Shortly prior to those dates, the County Commissioners had, by resolutions duly passed, found that it was for the public convenience and benefit to take over, construct and improve certain roads identified by description corresponding to that contained in the aforesaid deed and appropriated money for that purpose. These roads were opened for public travel and money has been expended by the County Commissioners in their construction and maintenance. These roads have been and are being used by the public, though not extensively, for pleasure, including a view of the panorama of Lake White and surrounding territory spread out at a lower level.

The defendant commissioners did not invoke the provisions of §6860 GC, et seq., relating to the location, establishment, or alteration of a public road, and that is the chief objection raised by the relators to the expenditure of public money in the maintenance of these roads. Nor have the Commissioners complied with certain statutory provisions required for integrating these roads into either the state highway or the county system; nor have the township trustees assumed any jurisdiction over them. It is argued from this premise that they cannot be public roads, and that being true, public funds cannot be used in their maintenance.

On the other hand the defendants contend that regardless of compliance with statutory requirements the facts and circumstances show that these strips were dedicated to the County for highway purposes, and that the Commissioners and the public have accepted that dedication and thereby these roads became established as public roads.

Many collateral issues have arisen in this litigation, most of which were, in our judgment, entirely irrelevant. The end of the trial finds but one substantial issue dividing the parties, and that is whether these roads have become public roads as a result of the grants of the easements by the property owners, the acceptance by the County Commissioners and their opening of them for public travel, and their use by the public.

The relators in the first place make the broad assertion that since the enactment of the so-called “Green Highway Act” there can be no such thing as the creation of a public highway in any way other than that prescribed by that Act. They also contend that in view of those statutes the cases on the subject of common law dedication decided prior to their enactment are no longer controlling. The substance of those prior decisions is epitomized in 13 O. Jur., 738 and 739 as follows:

“In order to constitute or effect a dedication of property to a public use at common law, except in those cases where the dedication is based upon a technical estoppel, three things are necessary, namely: The existence of an intention on the-part of the owner to make such dedication; an actual offer on the part of the owner, evidenced by some unequivocal act, to make such dedication; and the acceptance of such offer by or on behalf of the public.

“A dedication, at common law, may be either express or implied. It is express when the animus dedicandi is expressly declared; it is implied when it arises by operation of law from the acts of the owner. No particular words or ceremonies, or form of conveyances, are necessary. Anything which fully demonstrates the intention of the donor, or the-acceptance by the public, is effectual.”

That the authority of these cases has not been weakened by any legislative enactment is manifest from the Supreme-Court’s recourse to them in the recent case of Village of Hicksville v. Lantz, 153 Oh St, 431 (Ohio Bar of May 1st, 1950). in determining whether a public highway had been created in the absence of a statutory dedication. The court took-occasion to set forth in its syllabus the requirements of a common-law dedication, saying:

“One of the essential elements of a common-law dedication-of property to a public use is the intention of the owner of the property to so dedicate it.

“That intention may be expressed or implied from circumstances.

“A common-law dedication of an owner’s property to a public use has the same effect as an express grant of such property to such a use; and the law requires that there be-clear evidence of the owner’s intention to dedicate such property to such a use.”

So we conclude that the existence of the title to this land in the county for public highway purposes is sustainable even in the absence of formal deeds of dedication. But in this case the evidence shows that there were formal deeds of dedication delivered to and accepted by the County Commissioners.

In Carder v. Commissioners of Fayette County, 16 Oh St, 354, it was held that a county could take title to property by devise, and at page 369, the Court said:

“The county commissioners are, by various statutes, authorized to ‘purchase’ real estate for the use of the county. S. & C. 1229, sec. 2, 249; sec. 1. Every lawyer knows, that title by purchase is title by any means except descent, and, ■of course, includes title by devise. That the word purchase will have this original and technical meaning, when used in a statute, and not controlled by other statutes, or the general policy of the law, was expressly decided by this court in American Bible Society v. Marshal et al., 15 Oh St 538. 'There is the total absence of any such policy, or counter legislation, and our laws, so far as they have gone, are in the ■contrary direction. The act of 1831 not only authorized «donations of land to counties, but it contains, as do other .statutes on the same subject, stringent provisions, in cases where the land is not donated, for insuring its purchase at the lowest price. If the commissioners can acquire land at The ‘lowest bid’ — which may be one cent — why may they not acquire it as a gift?”

From all this we reach the conclusion that Pike County has a valid easement for highway purposes over and upon the -strips of land designated as Stone Quarry Road and Lazar-Bricker Road, that the commissioners have designated and ■opened them as public highways and the public have used and are using them for such purpose.

It is said in 20 O. Jur., 640, that: “A conveyance of land to the county commissioners for a county road, the acceptance of the grant by the commissioners, the opening of the road by their order and its subsequent use as such by the public, and by the proper authorities, constitutes a legal public highway, notwithstanding the want of statutory proceedings for its establishment.”

In 25 Am. Jur., 341, it is said: “A way is none the less a public highway because it is used for purposes of pleasure ■and recreation only.”

(2) The question remains as to the authority to expend public money in repairing and maintaining these roads. It should be said at once that as the commissioners have opened these roads for public travel, the duty devolved upon them to use reasonable care to keep them reasonably safe Tor travel in the ordinary mode. And the statutes confer' ample authority upon them not only to improve established roads by entirely reconstructing them, but also to repair roads already improved, and this they may do either through independent contractors or by force account by complying with the relevant statutes in awarding the contract or in making use of force account.

Of course, in spending public funds for road purposes, as for all other purposes, the county commissioners must comply with the relevant statutes prescribing the mode and manner thereof. This action does not require any more specific prescription. The occasion for greater particularity might arise when a specific action on the part of the county commissioners should be initiated or contemplated.

For these reasons, the Court finds on the issues joined in favor of the defendants on the plaintiff’s amended petition and on the defendant’s cross-petition.

If desired, a separate finding of facts and conclusions of law, in conformity with this opinion, may be prepared and presented as provided in Rule IX of this Court.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur.


author: By HORNBECK, J:

text:
    STATE, Plaintiff-Appellee, v. JOHNSON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2093.
    Decided May 5, 1950.
    Mathias H. Heck, Pros. Atty., William H. Wolff and Lloyd H. O’Hara, Asst. Pros. Attys., Dayton, for plaintiff-appellee.
    Jacobson & Durst, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, J:

The defendant was indicted, tried before a court consisting of three judges, convicted and sentenced for the offense of assault with intent to rape. A jury had been waived in writing.

The prosecuting witness was Annie Rose and the offense was alleged to have been committed on May 24, 1949. The defendant gave notice according to law that he would assert a defense of alibi “at the claimed time of the alleged occurrence of the matter mentioned in the indictment herein that he was enroute from west side of Dayton toward the southeast end of Dayton, Ohio.”

The prosecuting witness was a married woman, mother of two children and living with her husband at 4202 Cleveland Avenue, City of Dayton. She testified fully as to the claimed assault and was corroborated, in particulars, by other witnesses. We discuss the testimony more at length hereafter.

Appellant assigns five errors.

1 and 2. The judgment is not sustained by sufficient evidence and is contrary to the weight of the evidence.

3. The court erred in overruling the motion of the defendant to require the plaintiff to grant to him in advance of the trial the right to inspect and make a copy of a statement taken from him by the Police Department of the City of Dayton, Ohio, on or about May 26, 1949.

4. The court erred in the rejection of evidence offered by the defendant.

5. The court erred in admitting certain evidence offered by the State of Ohio to which the defendant objected.

The last error assigned is not discussed in the brief of appellant.

The fourth assignment of error. Defendant offered Mr. Otto Morganthal in his behalf, who testified at some length. The prosecuting witness was a niece of the wife of Mr. Morganthal. He said that he had known her since 1924, that he had seen her occasionally in past years, and without further development this question was asked. “I will ask you whether or not you would believe her under oath?” Upon objection this question was then propounded: “Will you tell us the reputation of this young lady for truth and veracity?” Up’ofo- objection the court called counsel’s attention to the fact that no foundation had properly been laid to support the question. Without further development inquiry again was made, “Do you know her reputation for truth and veracity?” The witness said, “Since she came into this country. The fact is we sent tickets to come here.” Upon the inquiry, if he had seen the prosecuting witness in the last ten years, he said, “Well, she grows up like all American kids.” An effort was made to learn how well the witness knew the prosecuting witness without success. There was again the question touching the credibility of the prosecuting witness. The court refused to permit the witness to answer.

We are satisfied that the ruling of the court was correct. The purpose of such testimony is to prove general reputation or character. It is not to elicit the personal opinion of the witness but his conclusion as to the reputation of the person sought to be impeached in the community in which he or she resides. The foundation question which is recognized by lawyers and the courts is intended to elicit an answer which will determine whether or not the witness is qualified to testify on the subject. At no time was a question propounded nor did the evidence develop facts from which the trial court could conclude that the witness had the qualifications prerequisite to testifying as to the credibility of the prosecuting witness.

The third assignment is based upon the overruling of the motion of defendant seeking an order granting him the right to inspect and to make a copy of a statement taken from him by the Police Department of the City of Dayton. The statement was not offered by the State. The §§11551 and 11552 GC define the rights of a party to books or writings in the hands of the other party and the necessary steps to be taken to secure them. State v. Hahn, 10 O. O. 29, holds that §11552 GC has no application to a a criminal case and in State v. Yeoman, 112 Oh St 214, it is said that defendant may not compel the prosecuting attorney to submit to him, or his counsel, a written confession signed by tlie defendant, either under §11552 or §13664 GC, now §13444-6 GC.

• The first and second assignments of error are made the subject of an extended brief of appellant wherein is discussed the testimony of the witnesses, attention directed to the conflicts in the evidence and insistence made that it does not support the findings and judgment.

In this case, as in most trials, there are discrepancies in the testimony, differences in detailing the facts and variations as to the time when relevant events occurred from all of which the triers of the facts were required to determine the ultimate issue.

The prosecuting witness testified that she left her home about noon on the 24th of May and with Mrs. Elsie Hafner and Mrs. Morganthal went down town in the City of Dayton to shop and that she returned to her home about one o’clock P. M. She further states that her daughter, who had been at home during her mother’s absence, soon left for school; that sometime thereafter, around one-thirty o’clock, the defendant came into her home and into the bathroom where she was seated on the commode; that she told him to leave, got up, put on a robe and stepped into the hall, whereupon, after some insulting remarks, he grabbed her and forced her into an adjoining bedroom where he attacked her and attempted to have intercourse with her. She says that she screamed several times but that he held his hand over her mouth and nose and attempted to stifle her screams and forced her to the floor and that she had great difficulty in breathing. She describes the assault and says that her lips and nose were badly swollen, or at least felt like they were swollen, that she had marks on her face, that her breasts were beaten, that she had friction burns on her back and was bruised on her thighs. She says that defendant threatened to kill her, says that she threatened to call the police and the defendant said if she did he would lie about it and would say that he had not been there. She fixes her movements after the assault and states that she then called, first, the home of Mrs. Hafner. The line was busy. She then called Mrs. Morganthal. Her line was busy. She then called Mrs. Hafner again and her line was still busy and upon a second call to Mrs. Morganthal, the defendant answered the phone and she hung up without saying anything to him. She says that she made these calls within five minutes after the attack. She finally reached Joseph Hafner, the husband of Elsie Hafner, at the place where he worked and told him what had occurred. He picked up her husband and they went to his home. After about a half an hour the police were called. She states that several times during the assault she blackened out temporarily, caused by the attack and particularly by the holding of defendant’s hand over her nose and mouth. She also testifies that she had been sick for some time and in this she is corroborated by her husband, from which it may be inferred that she was not physically fit to make a successful defense against the attack.

The alibi by the defendant is to the effect that he was enroute from the west side of Dayton to the southeast side of Dayton when the attack occurred.

Mrs. Elsie Hafner, who went from the home of Mrs. Rose to Mrs. Morganthal’s residence, testified that she came to this home about 1:20. That later the defendant came in, thereafter the phone rang and he answered it. She says that the phone was answered at about 2:00, ten minutes after the defendant came in. She fixes the time of his arrival by having looked at a clock. The defendant says that the phone rang twice. First, about five minutes after his arrival. The second time in about ten minutes. From this it is argued that if the prosecuting witness called within five minutes'after the attack, as she says, inasmuch as defendant had been at the Morganthal home for ten minutes before the call, he could not have been at her home at the time she claims she was attacked.

Further, upon the defense of alibi two witnesses support the statement of the defendant that he left the Westwood Tavern on the west side of Dayton at about 1:35 P. M. One of these witnesses, Ruth Eileen Britton, a waitress at the Tavern, who was not on duty, fixes the time when the defendant came in at a little after one o’clock and said that she just happened to look up at the clock when she came in. The other, George Lewis, a dispatcher for the Yellow Cab Co., with whom the defendant formerly worked, fixes the time when the defendant came into the Tavern at 1:00 to 1:05 P. M. This witness said that he arrived at the Tavern at 1:00 to 1:05 P. M. He said in chief, that he had an appointment at 2:00 at the Hudson Park Cafe, on cross-examination at 1:15; that he met this appointment and came back at about 1:25 to 1:30; that the defendant was there; that they had a final drink together; that the defendant left in not more than five or six minutes.

From this testimony as to the time of the telephone call which defendant answered, and the time when it is testified that the defendant left Westwood Tavern, it is urged that the alibi is supported to the extent that the defendant could not properly be found guilty of the charge against him by the requisite degree of proof.

Of course, if the defendant was at the Westwood Tavern from a little after one until 1:35 he could not have been at Mrs. Rose’s home at 1:30, but if he reached the Morganthal home at 1:50, as fixed by Mrs. Hafner, he could have been at the Rose home, at about that time. He may not have been at the Tavern at 1:30, or at any time, for that matter. It is testified that he did not mention to the Police that he had been at the Tavern, but said that he had been at a place known as Bezenies. The witnesses who fixed the time .may have been mistaken as to the date that defendant was at the Tavern; if correct as to the date, may have erred in fixing the time of day. It may be significant that defendant says he had lunch just before going to the Tavern. It may be that, if he went there at all, he went there sooner than his witnesses say and from there to the Rose home. It is testified by the Municipal Court Reporter that the defendant stated that he went from the Rose home to the Morganthal home.

It is also notable that all of the events material to the issue occurred between one and two o’clock P. M. and the judges could well have concluded that the statements of the witnesses who sought to support the alibi did not discredit the version of the attack as testified by the prosecuting witness.

Manifestly, the weakness in the contention of the defendant as to the telephone calls is in the attempt to treat as a finality and with exactness the time when the respective witnesses say the calls from the prosecuting witness were placed and received. She did not attempt to be exact other than by the expression of an opinion. She had no means •of definitely fixing the time. Mrs. Hafner undertakes to be exact by stating that she looked at a clock when the •defendant came into the Morganthal home, as does Miss Britton when she came into the Westwood Tavern, and that it was ten minutes after that time when the phone rang. Assuming that this is true, which the jury may or may not have accepted, it is not conclusive that the defendant was not at the home of the prosecuting witness when the attack •occurred. The distance from the Rose home to the Morganthal residence is one and seven-tenths miles by one route, with three traffic lights, and two miles by another route with no traffic lights. If defendant, immediately after the attack, went hurriedly to the Morganthal home it would be only a matter of a few minutes until he arrived. Mr- Lewis, one •of the defense witnesses, said that he drove ten squares in three minutes. It is approximately that distance from the Rose residence to the Morganthal home.

A difference of a few minutes in the estimate of time would be consistent with the truthfulness of all the witnesses who testify respecting the telephone conversation. For instance, if it was ten minutes after the attack before the prosecuting witness placed her call and reached the defendant at the .Morganthal home, and he had been there but five minutes, instead of the ten as testified, before the call came in, all of the testimony as to the ’phone calls could be reconciled. Under the physical facts here appearing it is not at all unlikely that such a minor variation in the fixing of time should occur. Recognizing the fallibility of an attempt upon opinion only to be exact in fixing the time when an event occurred, it is not at all unreasonable to believe that the statement of the prosecuting witness is true as to the occurrence of the attack, even though she may be mistaken as to the exact time when it occurred.

Appellant’s brief stresses several other aspects of the testimony which it is claimed refute the statement of the prosecuting witness.

It is urged that although Mrs. Rose testified that she screamed three times no neighbor heard her although they were living in close proximity to her. It appears that the doors in the Rose home were closed and she also testifies that the defendant placed his hand over her nose and mouth to the extent that she could not breathe at times. This testimony, tending to establish that had she screamed she would have been heard, is negative and must be accepted in the light of all the facts connected therewith. It is admitted that the defendant was at the home of Mrs. Rose on the day that she claimed she was attacked, but nobody in the vicinity saw him.

It is further urged that Mrs. Rose greatly exaggerated the extent of her injuries and that she did not have the appearance of being attacked; that the bedroom where the attack was claimed to have occurred was not disarranged in any unusual manner. A motive for the theory of the defendant that the charges were falsified was sought to be established in that he states some eleven years before the attack he observed the prosecuting witness in a compromising situation and that when he accosted her she then .threatened to get even with him.

We have considered these claims and all others appearing in the brief of appellant. As against all of these developments, intended to weaken the narrative of the prosecuting witness and to support the theory of the defense, there is not only the testimony of the prosecuting witness but strong corroborative facts and circumstances. She gave a definite and connected account of the attack. It appears that following the attack she was hysterical and in great mental distress. This is supported by Mr. and Mrs. Hafner that when they saw her she had been crying. Sergeant Eichelberger testified that her hair was disheveled, that her face was swollen, that it was difficult for her to talk clearly, and that the bedroom was bardly torn up. She reported the attack promptly and named the defendant as the assailant to Mr. Hafner when she was unsuccessful in reaching Mrs. Hafner. She is corroborated in her statement that the defendant answered the phone at the Morganthal home when she called there. She is corroborated almost completely by her husband as to the extent of her injuries and in the main by Sergeant Eichelberger, insofar as he could observe, when she was clothed. The hospital records support the contention as to the injuries as to her thighs and in part as to her face.

Supporting the theory of an attack was the presence of a milky liquid on the floor in the bedroom where the attack occurred. After it dried it was analyzed and found to contain dead spermatozoa. The prosecuting witness says that this liquid was not at the place where the attack occurred. Defendant urges that it is significant that none of the semen was found on the clothing of Mrs. Rose or the defendant.

The testimony of the defendant does not give the assurance that it was truthful in all particulars in connection with his earlier statements made to the police. To them he denied that he had been at the Rose home. To them he said nothing about being at the Westwood Tavern. At the trial this testimony was the very core of his defense of alibi. At the trial he said that he went from the Westwood Tavern to the Morganthal home by way of Hafner’s. To the police he said that he went to the Morganthal home from the Rose residence. To the police he was not committal as to the time of his movements on the date in question. At the trial he was specific as to the places and dates and time, particularly respecting the telephone call. Although he denied any attack, Sergeant Eichelberger testified that he said that “he couldn’t even think of admitting anything about a rape as he was a soldier of the United States and that it was a crime punishable by death under Military Rule and he couldn’t entertain a thought of rape and wondered what she (Mrs. Rose) would say with regard to an assault charge.”

All of these facts, and others which appear in the record, presented a situation from which the triers of the facts, three experienced jurists, could very properly have found, as they did find, that the State had established its case by the requisite degree of proof, and that the testimony tending to support the alibi of the defendant did not raise any reasonable doubt as to the guilt of the defendant.

The very early case of Bresse v. State, 12 Oh St 146, states the rule controlling reviewing courts as to the reversal of a criminal judgment in the 4th syllabus:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.”

Appellate cites State v. Petro, 148 Oh St 474, for the proposition that even the Supreme Court “would examine the record in a criminal case to determine its proof beyond reasonable doubt.” This, of course, does not imply that where there is evidence which is probative of guilt beyond reasonable doubt that the Supreme Court will reverse a conviction. The 11th syllabus does not so hold.

The obligation of an appellate court in a review of a criminal case is well restated by Judge Turner at page 501 of the late opinion, supra.

“It is the minds of the jurors and not the minds of the judges of an appellate court that are to be convinced. The jurors see the witnesses and observe their demeanor. The credibility to be given to each and all of these witnesses and to part or all of their respective testimony is for the jury. The question to be determined by an .appellate court is: Does the record contain evidence from which a jury would be justified in concluding that the accused was guilty beyond a reasonable doubt?”

Judge Turner concludes as we do in this case:

"We are of the opinion that there was direct and circumstantial evidence before the jury which, if believed, was sufficient to convince the minds of the jurors of the guilt of defendant beyond reasonable doubt.”

Here the three judges were acting as jurors-to determine and weigh the facts.

We And that no error prejudicial to the rights of the defendant intervened in the trial of this case in any of the particulars asserted.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.