author: By McCLINTOCK, J.

text:
    CHIESA, Plaintiff-Appellee, v. THOMAS, Jr. et, Defendants-Appellants.
    Ohio Appeals, Fifth District, Stark County.
    No. 2695.
    Decided March 20, 1956.
    Herschel Kriger, Jerry P. Hontas, for plaintiff-appellee.
    Day, Cope, Ketterer, Raley & Wright, for defendants-appellants.
   OPINION

By McCLINTOCK, J.

We will refer to the parties to this appeal as they were designated in the Court below, to-wit: Juanita F. Chiesa, plaintiff, and Harry A. Thomas, Jr. and Marcos G. Chimples, defendants. This cause involves two appeals, one by plaintiff, and one by defendants.

The third amended petition of plaintiff says that at all times hereinafter set forth, 305-7-9 Market Avenue South in the City of Canton, Ohio was and is a two-story combined commercial and residential structure with commercial businesses on the first floor thereof and offices and residential apartments on the second floor thereof and with access to and egress from the second floor by means of a stairway connected with a common passageway at the top thereof, which passageway and stairway were used in common by the occupants of the offices and apartments in said building and others having business therewith, and that the defendants were and are the lessees in possession of the entirety of said building pursuant to a written lease therefor between Mark Hambleton, the owner thereof, as lessor, and the defendants, as lessees, and that said defendants were in possession and control of said stairway and said second floor passageway, and that the defendants herein knew of the existence of certain defective and dangerous conditions situated in said premises, and that at the top of the stairway, on the second floor of said premises, there was a linoleum floor covering and that a defective and dangerous condition existed therein in that the same has become worn and torn and that the defective and dangerous condition thereof was not readily apparent to persons using said stairway and the passageway at the top thereof leading to the said offices and apartments, and by reason of the dim lighting provided therefor, and that it was necessary to traverse over said linoleum in that said stairway and said passageway were the usual and principal means of access to and egress from the said offices and apartments; that said linoleum, in the condition aforesaid, and said defective and dangerous condition had existed for a considerable period of time prior to the accident complained of.

Plaintiff says that on or about January 27, 1951, at or about 3:00 o’clock A. M„ she was visiting one of the tenants of the defendants on the second floor of said building, that she left their apartment for the purpose of purchasing gingerale for said tenants and their guests and as she approached said stairway her foot was caught in a torn and defective spot in said linoleum and she did trip over the same, which torn and defective spot was not readily apparent at said time and place, and she was precipitated violently forward and down the said stairway to the street below, suffering the injuries hereinafter set forth; that she was unable to right herself and prevent said fall because of the defective condition of said stairway and the banisters, as aforesaid; that she at all times was in the exercise of ordinary care for her own safety and that the injuries she sustained were solely, proximately and directly caused by the negligence and carelessness of the defendants, in the following particulars, to-wit:

1. In allowing said defective and dangerous conditions to exist in said linoleum floor covering and said stairway after they knew of same;

2. In failing to inspect said linoleum and said stairway to the end and purpose that they would have discovered the defective and dangerous condition thereof;

3. In failing to repair or replace said linoleum and to repair and replace said stairway;

4. In failing to warn plaintiff and others using said stairway and said passageway of the dangerous and defective condition thereof;

5. In failing to furnish adequate lighting for said stairway and passageway;

6. In allowing said dangerous and defective condition, relative to the loose and broken bannisters to exist after they knew of same.

Plaintiff further says that as she fell to the pavement at the foot of said stairway she suffered a violent blow upon the head and was rendered unconscious thereby, and did suffer a concussion of her brain, that she was taken to Mercy Hospital where she did undergo medical and surgical examination and treatment, that she was unconscious for a period of three days and semi-conscious for a period of a week, that she was required to and did undergo a surgical operation for the relief of pain in her head as the result of said fall, which operation did consist of the surgeon cutting out a section of her skull and removing from her brain a blood clot which had been causing pressure thereon, that she did remain in said hospital bed-fast for a period of three weeks and was unable to return to her job for another five weeks, being generally confined to her home; that said operation necessitated the shaving of her head, which did subject her to shame and ridicule until the hair grew back in and which did necessitate her wearing a covering over her head at all times.

Plaintiff says that she also did further suffer bruises, contusions and injuries to her head, face, arms, legs, and body, and a general shock to her nervous system in said fall, that prior to said accident she was in good health and was regularly employed at the Bloomfield Company earning approximately $42.00 per week, that as result of said accident and her said injuries she did lose eight weeks of work initially and approximately an additional week thereafter by reason of recurrence of her headaches, thus losing wages of approximately $375.00, that her clothing was torn and the diminution in the value thereof by reason of same was $50.00, that she was required to and did expend and obligate herself for medical, surgical, and hospital services and for drugs the sum of approximately $1,150.00; that since said accident she has suffered from headaches and dizziness, loss of appetite, difficulty in sleeping, pain in her ears and general weakness, that she has lost approximately 25 pounds in weight, that she believes and therefore avers that she will be required to undergo additional medical and surgical treatment in the future, that she has suffered a permanent impairment of her earning capacity, that her life expectancy has been shortened and that her injuries, as aforesaid, are permanent and incurable.

Wherefore, plaintiff prays for judgment against the defendants in the sum of $51,575.00. for her costs herein and for such other relief to which she may be entitled.

To this petition the defendants filed an answer and admitted that 305-7-9 Market Avenue South, in the City of Canton, Ohio, was and is a two-story combined commercial and residential structure with residential apartments on the second floor and with access to and egress from the second floor by means of a stairway connected with a passageway at the top thereof, which passageway and stairway were and are used in common by the occupants of said apartments and by those having business with the occupants of said apartments. Defendants admit that they are the lessees of said building and aver the fact to be that the apartments on the second floor of said building are rented to subtenants.

Defendants deny that said stairway and passageway were in a defective and dangerous condition as alleged in the third amended petition, and aver the fact to be that the condition of said stairway and passageway was well known to the plaintiff at and prior to the time of said accident.

Defendants admit that the plaintiff received some injuries on or about January 27, 1951, but deny that such injuries as she in fact sustained were caused by the negligence and carelessness of the defendants in any of the particulars alleged in the third amended petition or in any particulars whatsoever and aver the fact to be that such injuries were caused directly and proximately by the carelessness, heedlessness and negligence of the plaintiff in her conduct prior to and at the time of said accident.

Defendants deny generally each and every allegation in said third amended petition contained, except such as are herein specifically admitted to be true. Wherefore, having fully answered, defendants pray that the plaintiff’s third amended petition be dismissed and that they may go hence without day, with their costs.

For her reply to the answer plaintiff says that she denies, generally and specially, each and every allegation thereof, except such as admit the averments of her petition.

The cause came on for hearing before a Court and Jury and the Jury rendered a verdict in favor of the plaintiff for the sum of $18,380.00. A motion for new trial was filed by defendants, which reads as follows:

“Now come the defendants and move the court to vacate and set aside the verdict of the jury and the judgment herein and for a new trial for the following causes which materially affect the substantial rights of these defendants, to-wit:

1. For irregularities in the proceedings of the jury and matters occurring during the trial by which the defendants were prevented from having a fair trial in this, to-wit:

(a; Improper communications with the jury by Mrs. Hontas, wife of one of counsel for the plaintiff;

(b) Irregularity in furnishing to the jury an exhibit which was refused admission in evidence and which made specific reference to insurance coverages required of the defendants:

(c) Irregularity by the jury in referring to definitions in the dictionary in the Judge’s office pertaining to the case and the Court’s charge during a period of recess during the jury’s deliberations.

2. The verdict is not sustained by sufficient evidence and is contrary to the manifest weight thereof;

3. The verdict is contrary to law;

4. For error in refusing to give to the jury before argument certain special requests submitted by the defendants;

5. For error in giving to the jury before argument certain special requests submitted by the plaintiff;

6. For error in refusing to charge the jury as requested by the defendants at the conclusion of the Court’s general charge;

7. For errors in the Court’s general charge prejudicial to the defendants;

8. For errors in instructing the jury in response to a question propounded by them and in overruling motions made by the defendants at that stage of the proceedings;

9. For error in improperly admitting evidence offered by the plaintiff and objected to by the defendants;

10. For error in excluding evidence offered by the defendants;

11. The verdict was the result of sympathy, passion, and prejudice;

12. For error in overruling the defendants’ motions made at the conclusion of the plaintiff’s case for a directed verdict and for orders striking the several specifications of negligence from the third amended petition;

13. For error in overruling the defendants’ motions made at the conclusion of all of the evidence.

14. For the several errors of law occurring at the trial and to which exceptions were taken by the defendants at the time, and for other rules manifest from the face of the record.”

Said motion for new trial was sustained and the defendants also filed a motion for a judgment notwithstanding the verdict, which was overruled by the Court below.

Thereafter, plaintiff appealed to this Court from said order of the Court granting a new trial. Plaintiff claims that the appeal should be dismissed for the reason that no proper assignments of error have been filed. At the oral hearing this Court considered that feature of the case and overruled the same. We think there is no merit whatsoever to this claim.

The assignments of error of plaintiff in her appeal to this court are as follows:

“1. The trial court erred to the prejudice of this appellant in accepting and in considering evidence as to events occurring within the jury room during deliberations of the jury in the absence of evidence aliunde;
“2. The trial court erred to the prejudice of this appellant in sustaining the motion for a new trial and in nullifying the verdict heretofore granted by the jury;
“3. The trial court erred to the prejudice of this appellant in abusing its discretion with reference to the foregoing matters.”

It is the opinion of this Court that none of these assignments of error are well taken, for the reason that a communication to the jury in the form of an exhibit had been refused admission into evidence, in which communication the word “insurance” was used, which exhibit inadvertently was before the jury in their deliberations. This was clearly prejudicial error and for that reason the appeal of said plaintiff is not well taken.

Defendants appealed from the order of the Court overruling defendants’ motion for judgment notwithstanding the verdict, and claim that they are entitled to judgment in their favor for the reasons that:

“1. Upon the statements in the pleadings and upon evidence received upon the trial the defendants are entitled by law to judgment in their favor;

2. The trial Court erred in overruling the motions of the defendants for a directed verdict in their favor, which motions were made during the trial of the cause;

(a) At the close of the plaintiff’s case;

(b) At the close of all of the evidence in the case, all parties having rested;

3. An inference and presumption that negligence upon the part of the plaintiff directly and proximately caused and contributed to cause the injuries of which she complains appears from the plaintiff’s own testimony and the uncontradicted evidence submitted at the time of the trial, which inference and presumption were not rebutted, placed in equipoise, or counter-balanced by any evidence.”

It is questionable if defendants’ motion for judgment notwithstanding the verdict is an appealable order, for the reason that there was no motion for a new trial definitely directed to it. We cite: Jolley v. Martin Brothers Box Co., 158 Oh St 418, at page 423:

“Although its determination does not affect the end result in the instant case, a serious question arises as to whether an order overruling a motion for judgment notwithstanding a verdict is, in itself, a final appealable order, where there is no motion for new trial directed to such order and an overruling of such motion. This problem arises because of changes which in recent years have been made in the Appellate Procedure Act of this state.
“By Section 6, Article IV, Ohio Constitution, effective January 1, 1945, only judgments and final orders may be appealed from to the Court of Appeals. Sec. 12223-2 GC, effective September 30, 1947, defines a final appealable order as one which affects a substantial right in an action when in effect it determines the action and prevents a judgment. Clearly, the sustaining of a motion for judgment non obstante is a final order because it determines the action with a judgment. But the overruling of such a motion does not determine the action or prevent a judgment upon a verdict, which judgment will become final unless a motion for new trial directed to it is filed. If, however, a motion for new trial is filed directed to an order overruling a motion for judgment non obstante, which new trial under §11575 GC, requires a trial court to re-examine the issues of law as well as fact, an adverse ruling on such motion for a new trial makes the order overruling a motion for judgment non ob-stante a final appealable order. It would, therefore, be better practice, if not in fact necessary, that a motion for new trial be lodged to an order overruling a motion for judgment non obstante and be overruled before such order becomes an appealable one.”

However, we will not decide this case on that question. As to the appeal of defendants from a judgment notwithstanding the verdict, the law on that subject is as follows, citing Jolley v. Martin Brothers Box Co., 158 Oh St 428:

“In an appeal from an order overruling a motion for judgment notwithstanding the verdict, the question presented is whether the appellant was entitled to judgment as a matter of law. In such appeal the reviewing court cannot weigh the evidence; neither can it pass upon such matters as misconduct of counsel or misconduct of the jT and similar matters which may properly be raised on motion for new trial.”

We also cite Blanc v. Farm Bureau Mutual Automobile Insurance Company, as found in the Ohio Bar of March 5, 1956, Page 37 (72 Abs 37):

“1. If, on either a motion for a directed verdict or a motion for a judgment notwithstanding the verdict, made by defendant, the defendant was entitled to a judgment as a matter of law, when giving the whole evidence its most favorable interpretation in support of plaintiff’s case, and such motion was overruled, then error prejudicial to the right of defendant has intervened and defendant is entitled to ffnaj judgment.
“2. In considering either a motion for a directed verdict or a motion for a judgment notwithstanding the verdict, the court has no right to weigh the evidence.”

From this record of almost 400 pages we find some of the facts to be as follows:

The accident which is the subject of this lawsuit occurred during the early morning of January 28, 1951. On the evening before, the plaintiff, Juanita F. Chiesa, then age 24, stopped with her uncle and brother at the defendants’ tavern, where she had a few drinks and danced to the juke-box. She arrived about 10 A. M. and had one drink at the bar with and spoke for about a half hour with Olive Waterman, an old friend and one of the defendants’ tenants in the upstairs apartment. She left Miss Waterman with the advice that she “would see her later” and joined her uncle and brother in one of the booths.

When her uncle and brother left the tavern about midnight, plaintiff went over to the Italian Club, a social club for persons of Italian ancestry, about a block away, where she drank a bottle of beer and danced to the juke-box. About 3:30 A. M. she left the Italian Club in company with an acquaintance for the purpose of visiting her friend, Olive Waterman, at her apartment. Before ascending the stairs she stopped at the defendants’ tavern and procured a bottle of whiskey from Zack Thomas, the bartender and brother of the defendant Thomas. Then she ascended the stairs and went to the rear of the building where she knocked on the Waterman door. Miss Waterman’s friend, Buck Knoll, who apparently lived there with her, opened and answered the door after Miss Waterman had answered the knock with “I’ll be with you in a moment” and let the two in. The two men immediately poured themselves drinks from the bottle, but plaintiff asked Miss Waterman, who was still in the bedroom, whether she had any gingerale. It appearing that she had none, plaintiff advised that she would go downstairs and procure some gingerale. She left her coat and handbag in the apartment, walked down the hallway, but as she approached the stairway her foot caught in the linoleum or in a hole or worn spot therein and she was precipitated to the bottom, striking her head and suffering very serious injuries.

The plaintiff and Olive Waterman were old friends of many years. Plaintiff had visited her in her apartment on other occasions.

Plaintiff and Olive Waterman spoke in friendly fashion for a half hour in the tavern prior to the accident and plaintiff left her with the advice that she would see her later that evening, surely an indication that ^ ' would call at her apartment later.

Wnen plaintiff knocked, Olive apparently recognized her voice and indicated that she could come in. She and her friend were admitted readily by Miss Waterman’s male friend, who proceeded to pour him and the other man a drink from the bottle.

Plaintiff had a brief conversation with Miss Waterman before leaving. Plaintiff left the apartment only for the purpose of procuring gingerale for herself and Miss Waterman and obviously intended to return, for she left her coat and handbag in the apartment. The intended trip to the tavern below was for the mutual benefit of all of them — to procure gingerale for the party in which all were to participate.

On the question of whether the plaintiff was a guest of a tenant and accordingly an invitee, we cite Davies v. Kelley, 112 oh St 122, which holds in Syllabus 2:

“Where a porch and a stairway leading thereto are provided, maintained and controlled by a landlord for the use of several tenants of his building, and are thus used, he is, in general, liable for any injuries arising from his neglect to keep the same in proper repair; such duty and liability extend not only to the tenant himself, but also to members of his family, employees, guests and invitees.”

In conclusion, we are of the opinion there was some evidence in the record that the plaintiff was a guest of a tenant and accordingly an invitee, and for the reasons herein stated, it is our opinion that the Court acted correctly in overruling the motion for judgment notwithstanding the verdict, and that none of the assignments of error on behalf of plaintiff nor of defendants are well taken, and the judgment of the Court of Common Pleas is hereby affirmed.

MONTGOMERY, PJ, concurs.

PUTNAM, J, concurs in judgment.


source: Caselaw Access Project

author: By SKEEL, PJ.:

license: Public Domain

text:
    BOWMAN, Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23809.
    Decided May 16, 1957.
    James B. Dolphin, William H. Wentzlaff, for plaintiff-appellant. Sylvester Marx, for defendant-appellee.
   OPINION

By SKEEL, PJ.:

This case is now before us for consideration for the third time, twice on appeal and now because we granted a motion for rehearing.

The question of the right of the Probate Court to appoint one, other than the person named in a will, to administer the estate of a decedent on the ground of self-interest is here presented.

Clayton A. Bowman died about May 1, 1954. The appellant survived him as his widow. The appellee claims to be a son of the decedent by his first wife, Helen Weymark Bowman, who died in February or March 1939. Upon the death of his mother, he became the owner of an undivided one-half interest in the residence of Clayton A. Bowman and his deceased wife; that Clayton A. Bowman managed the property (it being in part income property) until his death in 1954; and that by reason thereof, more than $15,000 is due the appellant from the estate of his father.

The will of Clayton A. Bowman names the appellant, Helen Marie Bowman, Executrix of his Estate. The appellee objected to her appointment because of self-interest. The Probate Court, upon hearing the application for appointment of the appellant as executrix, and the appellee’s objections thereto, overruled the objections and appointed Helen Marie Bowman, Executrix of the Estate of Clayton A. Bowman. An appeal was taken to this court where the order appointing the appellant executrix was reversed for error of law in excluding evidence and the cause remanded for further proceedings.

Upon retrial, the Probate Court found “that the applicant, Helen Marie Eowman, is not a suitable person to be appointed Executrix of this Estate.” This entry was appealed by the appellant to this court where the foregoing entry was affirmed, one judge dissenting for the reason that this court could not say, upon a careful reading of the record, that the Probate Court abused its discretion in refusing the appellant’s application for appointment as executrix as directed by the will of the decedent.

Thereafter this court granted a rehearing. The bill of exceptions shows:

1. There are no assets in the estate.

2. There are a number of debts of the decedent being paid by the appellant out of her own funds.

3. The appellee is a devisee under the decedent’s will wherein he is designated as “my son.”

4. The appellee is a claimant against the estate, said claim having been presented and refused and an action filed thereon in the Court of Common Pleas against the appellant as an individual and in her capacity as executrix.

5. The appellant claims title to the real estate of the decedent having a value of $20,000 above the mortgage claims against it of $3,000 at the time of the decedent’s death.

6. Title to said property was of record in the decedent’s name at the time of his death. That the appellant was handed the deed to such property, naming her as grantee, two days after decedent’s death, by her sister-in-law. That she did not know of such deed before the grantor’s death and before it was called to her. attention by her sister-in-law and that she thereupon filed it for record about three days after the grantor’s death.

It is clear, therefore, that should the appellee prevail in sustaining his claim against the estate that the only source from which payment of the claim could be enforced would be by setting aside or attempting to set aside the transfer of the decedent’s interest in the property to appellant by the above described deed. Under these circumstances, the appellant, as executrix, would be a necessary party as executrix in an action against herself seeking to set aside the deed which she recorded and under which she now, by her testimony in the record, claims absolute ownership of the property.

The trial court found that the appellee was a claimant as well as a devisee, claiming an interest “adverse” to the appellant. The appellant was held likewise to have adverse interests against the property amenable to the payment of his claims if and when established.

Sec. 2113.05 R. C., provides:

“When a will is approved and allowed, the probate court shall issue letters testamentary thereon to the executor named in such will, if he is suitable, competent, accepts the trust, and gives bond if that is required. If no executor is named in such will, the court shall grant letters of administration with the will annexed to some suitable person.”

This section vests discretion in the court to determine whether the person named in the will as executor or executrix is not only a competent person but also a “suitable * * * person.” This power was vested in the court by the amendment of the statute effective September 2, 1935. The cases cited prior to that date cannot now be relied upon as authority under the statute as amended. In Addams & Hosford’s Probate Practice Manual, the authors present the following comment under this section:

“Until this statute was amended in 1935, it provided that the person named in the will should be appointed if legally competent, but it failed to provide, as do statutes of many of the other states, what is to be considered to be legal competence. Under the statute, as it thus formerly existed, it was thought by some that where such objections existed against the appointment of the person as would justify his removal by the court after his appointment that would be sufficient reason to refuse to appoint him in the first instance. It was, however, held by several probate courts in Ohio to the contrary; and that, under the common law rule, which prevails in Ohio, none were legally incompetent except minors, idiots and insane persons. And that where the person was not thus legally incompetent, he was entitled to receive the appointment.”

It is true there are a number of collateral questions which must be decided before the appellee’s right tQ share in the estate will be considered, such as the appellee’s status as a son of the deceased, as well as the ownership of record of an interest in the property of the decedent’s first wife coming to appellee by descent. Likewise, there is the question of the title of the decedent to such property and the sufficiency of the deed to the appellant to make out a gift. But these questions are not to be decided upon at this point in the administration of the estate but such disputed claims create circumstances which should be considered in passing on the “suitability” of the appellant because of such conflicting interests to be appointed executrix of the estate.

We must come to the same conclusion as before that the appointment of one named in a will as executrix, admittedly otherwise competent, is not entitled to the trust, as a matter of right, if she is not, because of conflicting interests, a “suitable” person under the circumstances. This question requires the exercise of sound discretion by the court passing on the question, and upon the record in this case, we cannot say that the court abused its discretion in refusing appellant’s application to be appointed executrix of this estate.

Judgment affirmed. Exceptions. Order see journal.

HURD and KOVACHY, JJ, concur.


author: By GRIFFITH. J. By PHILLIPS, PJ. By NICHOLS. J.

text:
    HANISKO, Plaintiff-Appellee, v. HANISKO et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3869.
    Decided November 2, 1956.
    Falls, Hazel & Kerr, Youngstown, for plaintiff-appellee.
    Theodore T. Macejko, David C. Haynes, Youngstown, for defendants-appellants.
   OPINION

By GRIFFITH. J.

This is an action to recover $3,000.00 which plaintiff alleges he turned over to the defendants with the understanding that they would return the same to him as he might request. Plaintiff alleges that he later made demands upon defendants for the money, and that they have refused to return it.

In addition to the general denial of the facts alleged by the plaintiff in his petition the defendants say that the check was delivered to the defendants as a gift.

The only issue therefore pertains to the nature of this transaction. Was it a delivery coupled with the imposed condition that it be returned to plaintiff upon request, or was it an outright gift?

The transaction between the parties admittedly embraced the following elements:—

(1) It was a transfer of the money from plaintiff to defendants.

(2) There was no consideration therefor.

(3) Plaintiff at time was of sound mind and not under any restraint.

(4) He had a right to make a gift.

(5) Delivery was fully made by plaintiff and accepted by defendants.

The above five items are all elements of a gift.

To constitute a gift, however, there must be an intent on the part of the donor to make such gift, and he must irrevocably part with ownership and control and with no condition imposed thereon to be carried out by the donee.

The court charged the jury:—

“The plaintiff comes in here, in the first instance, and makes an affirmative claim that he turned oved $3000 by a check to the defendants in the early part of 1952 for the purpose of their holding it for him and to send him such parts or all of it as he requested, and that this was done on the basis of a trip to Canada. Essentially, the claim of the plaintiff here is that this money, represented by the check, was turned into the custody of the defendants, that they would hold it for him, pay it over as he asked for it.
“That is denied by the defendants. Their position, as you know, is that the transaction was an out-and-out gift. Since the plaintiff has come in here and made an affirmative claim as to the nature of the transaction, namely, that the money was turned over to the defendants to hold for him and pay out as he asked it to be paid out to him or on his order, since that affirmative claim has been made and is denied by the defendants, in order for the plaintiff to prevail in this law suit, he must establish, essentially, that that was the transaction in order to be entitled to a verdict at your hands. We sometimes put it by saying the burden of proof is upon the plaintiff to establish his claim, his affirmative claim by the greater weight of the evidence. By the greater weight of the evidence is meant this, that he must establish the affirmative of his claim by evidence which in your judgment has greater weight, is more persuasive to you than all other evidence to the contrary. I am going to go into this matter a little more fully. You have before you a determination of a fact, and you are considering the evidence, the fact being was this money turned over in, you could say in trust, but in the care and custody of the defendants for the plaintiff’s benefit.
“Now you weigh the evidence on either side of that proposition; and if you find, after weighing it and considering it, that it weighs against the plaintiff’s claim, then the plaintiff has not established his claim by the greater weight of the evidence; likewise, if you should find in weighing the evidence that it is about equal or substantially equal on both sides, again I instruct you the plaintiff cannot be said to have established his affirmative claim by the greater weight of the evidence.
“But if you find, even though it is by a small amount, that the evidence in favor of the plaintiff’s claim outweighs even to a small extent the evidence against it, then the plaintiff could be said to have established his claim by the greater weight of the evidence.
“So in this case, unless you find that the plaintiff has established the issue of fact I am now discussing, I remind you it is the question of whether or not the money was turned over by the plaintiff to the defendants to hold for him, unless the plaintiff has established the affirmative of that claim of his by the greater weight of the evidence, your verdict must be for the defendant.
“On the other hand, if you find that the plaintiff has established his claim by the greater weight of the evidence, the claim referred to, then he is entitled to recover and your verdict should be for the plaintiff.
“I have taken, perhaps, quite a few minutes to tell you about this, but after all, it is a simple issue. If you find for the plaintiff, you will have no problem as to the amount of money involved. It is either $3,000 or nothing, depending on your determination of the leading issue in the case. If you find for the defendant, of course, the plaintiff is entitled to nothing. If for the plaintiff $3000. There is no interest complication in this case. The petition does not ask for interest.”

Wasn’t the presence or absence of the condition imposed upon the delivery of this money the only question involved? All the other elements of a gift were admittedly present so why charge on the subject of gift, which could only tend to draw the minds of the jurors away from the real single fact in issue in this case, to-wit, was it a conditional gift or was it an outright delivery free from any strings attached.

The charge in this case is clear and goes directly to the one issue of fact, and although counsel on both sides requested the court to charge on what constitutes a gift the court was not required to do so, and was correct in refusing so to do. How could it have helped the defendants if the court so charged? The issue was the presence or absence of a conditional delivery of this money and nothing more. The court should not go beyond this one single issue and embrace issues of fact not in the case. The five elements of a gift were not in issue. The sixth issue, to-wit, was there a condition imposed on the gift, was the only matter in issue.

There was evidence both ways as to this issue, and the jury determined that it was not an outright gift but a conditional delivery as claimed by plaintiff.

We fail to find any prejudicial error in the other eight assignments set forth and the judgment is affirmed.

PHILLIPS, PJ, concurs in judgment.

NICHOLS, J, dissents.

CONCURRING OPINION

By PHILLIPS, PJ.

In his petition filed in the court of common pleas plaintiff alleged inter alia:—

“* * * that on or about the 16th day of October, 1951, because of the mutual trust and confidence in each other the plaintiff and defendants entered into a living arrangement whereby the plaintiff furnished a home for the defendants and the defendants agreed to provide food and meals for the plaintiff.
“That as an incident to this living arrangement the plaintiff planned an extended trip to Canada to visit his brother. Contemplating that he might need more money than what this plaintiff intended to take with him, the plaintiff, on January 2, 1952, withdrew $3000.00 from his savings account at the Mahoning National Bank and having complete trust and confidence in the defendants and assuming they would forward his money to him as he requested and relying on their good faith and believing they would properly account for said funds turned over to the defendants said money for said purpose and not otherwise.
“That after placing said money under the care and custody and control of the defendants, the plaintiff visited his brother in Canada but due to a change in plans returned home. That upon his return the plaintiff requested of the defendants a return of the $3000.00 which they were holding for him and thereafter the plaintiff has made numerous demands upon the defendants for same but the defendants have refused and still refuse to return said money. The plaintiff therefore believes and alleges that the defendants wrongfully used the plaintiff’s $3000.00 for their own personal use and acquired assets therewith. * * *
“Wherefore, the plaintiff prays judgment against the defendants for the sum of $3000.00 and further that the assets of defendants be impressed with a trust in the sum of $3000.00, for all other proper relief which the court deems meet and for his costs herein expended.”

By answer to plaintiff’s petition defendants alleged inter alia:—

“* * * on the 1st day of September 1951, at the sole request of plaintiff these defendants moved from the City of Struthers, Ohio to the plaintiff’s residence at 968 Campbell Street Youngstown, Ohio; that plaintiff desired and wanted these defendants to take care of the home, provide the plaintiff with board and otherwise perform certain services commonly carried out in each and every home; that plaintiff, at the time in question, was a widower and stated to the defendants that he wanted them to make their home with him; that in addition to the performance of the foregoing acts, these defendants move into the property owned by the plaintiff and provide him with food and other essential services ordinarily required for the proper maintenance of a home; that the defendant, Elisa Hanisko prepared the meals for the plaintiff, laundered all of his clothes, cleaned the entire home, re-arranged and re-decorated the entire interior of the home; that defendant, Frank Hanisko likewise performed certain essential services in connection with the agreement reached between the parties; namely, painted the exterior of the home, replaced the front and back steps, installed a new roof on the garage.
“Answering further defendants state that on or about seven weeks after they changed their place of residence from Struthers to Youngstown, the plaintiff without solicitation of any kind and as an act of appreciation gave the defendant, Elisa Hanisko a check in the amount of $3,000.00 without reservation or condition. Defendants say that the check referred to was given to Elisa Hanisko as a gift.
“Answering further defendants state that by reason of plaintiff’s unbecoming conduct and remarks to the defendant, Elisa Hanisko, defendants found it necessary to remove themselves from the home of the plaintiff.
“Answering further defendants deny each and every allegation and statement contained in said petition not hereinbefore expressly admitted to be true.”

By cross-petition defendants sought a judgment against plaintiff for food and services rendered him.

Both parties introduced evidence to support the allegations of their respective pleadings.

The jury returned a verdict for the plaintiff upon which the trial judge duly entered judgment, overruled defendants’ motions for a new trial and for judgment notwithstanding the verdict of the jury.

Defendants appealed to this court on questions of law from the judgment of the court of common pleas “and the court’s order overruling defendant’s motion for a new trial rendered by the court of common pleas in the above entitled cause on the 25th day of May, 1956.”

The trial judge permitted plaintiff to testify as follows:—

“Q. In January of 1952, before you went to Canada, did you draw some money out of the bank?
“A. Yes.
“Q. How much?
“A. $3000.
“Q. How much money did you have in the bank at that time?
“Mr. Haynes: Objection.
“The Court: I think I am going to overrule you on this basis: We are looking at people’s intentions, and I think that has a bearing on it.

I will permit it and give you an exception. Overruled with exception.

“A. $6,500.
“Q. Do you have money in any other bank?
“A. No.
“Mr. Haynes: Same objection, and ask that it be stricken.
“The Court: Same ruling, exception granted. It may remain.
“Q. What did you do with the $3,000 you took out of the bank?
“A. I gave it to Mrs. Hanisko.
“Q. What?”

Urging that the trial judge committed error prejudicial to them in the introduction of such evidence defendants argue inter alia:—

“* * * it can be definitely shown that the testimony referred to above concerning appellee’s financial condition was intended merely to present to the jury an element of pity since the age differential existing between the appellee and his nephew indicated that two young people were endeavoring to take advantage of an old man. In other words, this line of questioning created passion and prejudice against the appellants and placed the appellee in a favorable position. Such testimony did not bear upon any issue in this case and the objection raised by counsel for the appellants should have been sustained.”

The sole question presented for the jury by this situation was the intention of the parties which must be determined by careful consideration of all the circumstances surrounding their acts. See Thompson v. Thompson. 18 Oh St 73; Norris v. Norris, 40 Abs 293.

I do not concur in defendant’s contention that the trial judge erred to defendants’ prejudice in the admission of the evidence of which complaint is made.

The bill of exceptions discloses the following action taken by counsel for defendants:—

“Mr. Haynes: At this time on behalf of the defendants I wish to stand alone upon the gift, and we will at this time dismiss our cross-petition as respects what we claim as services rendered, and we will stand alone upon the gift.
“The Court: I assume, therefore, that you will withdraw your motion with regard to the cross-petition.
“Mr. Newman: I shall. I would like the record to show that we do not have to disprove a gift to Mr. Haynes argument.
“The Court: I will instruct the jury when the time comes.”

With reference to the claimed gift of $3,000.00 defendant Elisa Hanisko testified:—

“Q. Now then, I want you to tell us about the time when he delivered to you the check that we have all heard so much about in the amount of $3,000, and I want you to tell His Honor and these folks every word that was spoken by him, if you can recall, at the time of the delivery of that check to you.
“A. Well, I was in the kitchen. It was about quarter after three, I was getting supper for my husband. He got home about four. I always started my meal between three and three-fifteen.
“Q. That included Uncle Mike?
“A. Yes.
“Q. All right.
“A. And in the meantime he had come home from town, and whether the other uncle had been with him or not I don’t know, but he was in the living room with him, and they called me in there, and I told them I didn’t have time because I had to get supper, and he says, Uncle George, the other uncle, says, well, come in, Uncle Mike has a present for you. So I left everything go and went in to see what they had. Uncle George Repasky handed me the check when I went in there.
“Q. Is that the older gentleman sitting out here right now?
“A. Yes.
“Q. Within ear-shot of this Court Room? He is out there?
“Mr. Newman: I object and ask that that be stricken.
“Mr. Haynes: He is within ear-shot.
“The Court: I don’t think it is something—
“Mr. Newman: He has purposely—
“The Court: The jury has no business on the issues in this case. If he is a witness and sitting out there, I can’t criticize anybody. I am sitting in a court room that has not got a witness room.
“Mr. Haynes: All I said is that the old gentleman sitting there.
“The Court: What difference does that make?
“Mr. Haynes: I want him identified as the one who delivered the check.
“The Court: What difference does that make?
“Mr. Haynes: I want him identified as the one who delivered the check.
“The Court: I know. I think that the jury is instructed to disregard all this part of it.
“Q. Is the gentleman that is seated out there the man that delivered the check to you?
“A. Yes.
“Q. Proceed.
“A. Well, I looked at the cheek and I thought it was for $300, and I was putting it or lowering it I looked at it again and I was shocked to see it was for $3,000. I asked Uncle Mike, what is this for, and he says, I told you I’d be good to you, and that was the last that was mentioned about the $3,000.
that that was to be money to finance any emergency that might arise
“Q. Was there anything ever said by him at any time then or later if and when he went to Canada?
“A. No, sir.
“Q. Tell us what he did about the $800.00 that he had upstairs.
“A. Well, before he went to Canada, he called me in his room and showed me where he kept $800, and he told me that if anything happened to him there was $800 more for me that nobody would know about that could be mine.
“Q. That $800 was there when he returned?
“A. Yes, sir.
“Q. He later took it himself?
“A. I believe he did as far as I know.
“Mr. Haynes: I believe that is all.”

Obviously by the statement “the jury has no business on the issues in this case” the trial judge was referring exclusively to the matter on which he was ruling, namely, the objection of plaintiff’s counsel to defendants’ counsel’s remark concerning “Uncle George Repasky” sitting “within ear-shot of this court room.”

With reference to defendants’ claim that the trial judge erred to their prejudice in refusing the request of counsel for the respective parties to charge on a gift the bill of exceptions discloses:—

“Mr. Newman (Counsel for plaintiff): If the Court please, I think the court should define a gift, because gift has been injected in here.
“The Court: No, I am not, for this reason: I have told the jury that the plaintiff must establish by the greater weight of the evidence the circumstances of the turning over that money as he claims he did; and if he does, there would not be any gift or anything else except to interfere with his recovery. It seems to me that a gift is giving something for nothing. It is a sort of thing we give on Christmas or birthdays or something like that, sometimes not on such occasions, but that is not what the plaintiff claims. The plaintiff claims, as I have explained to the jury, what was the transaction substantially, that is, that the money be held for him, and he must establish that by the greater weight of the evidence before he can recover. I don’t think there is any point in going further in defining a gift, and that is important only to the extent that that in the opinion of the jury might negative the transaction as the plaintiff claimed it. Anything further?
“Mr. Newman: Likewise, that the jury should be instructed to exclude all acts of conduct subsequent to the delivery of this gift except those which pertain here.
“The Court: No, there are a lot of circumstances in the case. I will let the jury consider them, but only as bearing on the main issue of the case as to the nature of- this transaction concerning which the parties have—
“Mr. Newman: Nothing further.
“Mr. Haynes: With the fear of being repetitious, I know, Your Honor, I too concur that I wish the court would charge the jury on a gift and their views, I am saying for the record—
“The Court: Well, it seems to me the issue is very simple. I have stated to the jury the issue. It is what the plaintiff claims is what, that he-turned this money over to be held for him. Now anybody knows that a gift is where you give something for them, not for yourself. I don’t think there is any need to define a gift in its legal terms. I told the jury when the plaintiff is entitled to recover and when he is not entitled to recover. You may have an exception. The alternate juror may be excused.
“Mr. Haynes: Exception to the charge of the court. General exception.
“Mr. Newman: General exception.”

Further arguing this assigned ground of error the defendants state by brief:—

“To the foregoing requests for a positive statement on what the law is as respects gifts inter vivos, the court made the following jocular remark in the presence of the jury:
“ ‘It seems to me that a gift is giving something for nothing. It is a sort of thing we give on Christmas or birthdays or something like that, sometimes not on such occasions, but that is not what the plaintiff claims.’
“Obviously the foregoing language of the court simply instructed the jury to return a verdict for the appellee when he stated that a gift is something you give for nothing. The basic law in the state of Ohio involving a gift inter vivos is just exactly that, that it is a gift that may be given without any consideration whatsoever.”

Finally defendants argue:—

“Originally appellants’ answer and cross-petition raised two issues. One of these issues was automatically resolved when the cross-petition was dismissed. The other issue of gift was nullified when the court refused to instruct the jury on the elements of a gift. When appellants were stripped of this affirmative defense, the jury had only one duty to perform and that is to find for the plaintiff.”

I believe no error intervened to defendants’ prejudice by the refusal of the trial judge in the respects urged in the assigned ground of error under discussion.

For a full discussion see: Corrigan v. Rockefeller, 8 Ohio Decisions 14, Leedle v. Christie, 15 C. C. (n. s.) 385 at 388; 17 O. Jur., Sections 119, 120, 123, Pages 149, 150, 151, 156.

I concur in what Griffith, J., said in the majority opinion:—

“The charge in this case is clear and goes directly to the one issue of fact, and although counsel on both sides requested the court to charge on what constitutes a gift the court was not required to do so, and was correct in refusing so to do. * * *
“We fail to find any prejudicial error in the other eight assignments set forth and the judgment is affirmed.”

The judgment of the court of common pleas is affirmed.

GRIFFITH, J, concurs in judgment.

NICHOLS. J. dissents.

DISSENTING OPINION

By NICHOLS. J.

To me it is apparent that the trial judge by his refusal to charge upon the defense raised by the answer of the defendants and the evidence in support thereof committed error prejudicial to the defendants for which this action should be reversed.

There is in the record competent evidence offered by the defendants which, if believed by the jury, would warrant a finding that the plaintiff made an unconditional voluntary gift to defendants of the money involved in this action, and by the court’s definite refusal to charge upon the subject of gift the defendants were deprived of a substantial right which eliminated from the consideration of the jury the issue made by defendants’ answer and the evidence offered in support thereof.

The trial court should not confine its charge solely to the issue made by one of the parties in an action. The refusal of the trial judge to charge upon the issue of gift in this case gave undue emphasis to the charge as given.


author: By THE COURT: '

text:
    LAGONDA NATIONAL BANK OF SPRINGFIELD, Plaintiff-Appellee, v. ROBNETT et, Defendant-Appellee and HERR, Defendant-Appellant.
    Ohio Appeals, Second District, Clarke County.
    No. 536.
    Decided January 25, 1957.
    Arthur J. Todd, Keifer & Keifer, Springfield, for plaintiff-appellee. Durfey, Martin, Browne & Hull, Springfield, for defendant-appellees. (Frieds;
    George C. Collins, Lawrence E. Laybourne, Springfield, for defendant-appellant.
   OPINION

By THE COURT: '

Submitted on motion of appellee to dismiss the appeal on three grounds:

First: No notice of appeal was filed within the required time.

Second: No separate appeal was allowed and no penalty and bond therefor was fixed as required by the statute. (Sec. 2505.15 R. C.)

Third: No appeal bond was filed herein as required by law.

The first ground of the motion will be overruled. Under the statute now applicable, §2321.17 R. C., a motion for new trial was appropriate in this case and the time within which the notice of appeal should be filed, dated from the overruling of the motion for new trial. (A) Sec. 2505.07 R. C. In re: Estate of McKitterick, 94 Oh Ap 373; Duemer v. Duemer, 86 Oh Ap 192 and Roscoe v. Kolb, 93 Oh Ap 352.

We consider the second and third assignments together. Sec. 2505.15 R. C., would not justify the sustaining of the motion to dismiss if the bond, as executed, substantially conformed to the statute, §2505.14 R. C.

The third branch of the motion is predicated upon the claim that the bond is defective in that no amount thereof had been fixed by the court as required by §§2505.06 and 2505.09 R. C. Also was defective in that no order of the court had been made directing to whom the bond should be given, as provided in §§2505.06, 2505.09, and particularly, §2505.14 R. C. In support of this branch of the motion, the cases of Liberal Market v. Main-Nottingham, 97 Oh Ap 464 and Mullins v. Webb, 25 Oh Ap 352, are cited.

In connection with the third branch of the motion, it should be stated that appellant has moved the court to permit an amendment to the bond by inserting therein as the obligee the name of the appellee Lagonda National Bank of Springfild.

An examination of the files discloses that on November 16, 1956, appellant filed her notice of appeal on questions of law and fact. On November 24, 1956, an entry was filed in the trial court reciting that the defendant, Nettie L. Herr, had filed her notice of appeal and provided:

“That the defendant, Nettie L. Herr, execute and file bond in the sum of five hundred dollars with surety thereon to the approval of the Clerk of this Court.”

The bond is complete in form and amount except that it does not carry the name of the obligee, Lagonda National Bank of Springfield. It was approved by the Clerk of Courts. So that the sole question is whether or not the bond as tendered and approved by the Clerk of Courts conforms to the statute and this court may grant the motion to amend.

The statute, §2505.09 R. C., in terms, provides that the supersedeas bond be executed by the appellant to the adverse party. The entry ordering the bond by reason of the notice of appeal on questions of law and fact implied that it be executed in favor of the adverse party which the entry recites was the successful party.

Nor does it necessarily appear that the intent of appellant is so distinct from that of all others in the suit to bring it exclusively under the provision of §2505.15 R. C. The principal claim of appellaut is predicated on an easement, but by her answer she denies specifically that plaintiff is the owner and in possession of the real estate described in the petition and denies generally plaintiff’s allegations respecting the rights of defendants Robnett and Tomlinson. The failure of defendants other than appellant to appeal would not remove from consideration on appeal the issue drawn by the answer as well as by the cross-petition of appellant.

The case of Austin, et al v. Morris, et al, 103 Oh St 449, in both branches of the syllabus supports the claim that appellant has the right to amend the bond in the particular requested.

The case of Liberal Market v. Main-Nottingham, 97 Oh Ap 464, by this court, is distinguishable from the instant case in that no proper bond, in form, had been filed in the trial court within the time provided by statute. The observation in the opinion at page 468 should be read in the light of the factual development in that case. We said:

“This court has no power to permit the appellant to change, renew, amend or give a new bond in this case, since the time limit within which a proper bond many be filed has long since expired. See Mullins v. Webb, supra, at page 355, and Main v. Cummins Wild West Exhibition Co., 84 Oh St 462, 95 N. E. 1151.”

A full consideration of all of the language of the bond in probability would authorize a recovery thereon by the Lagonda National Bank of Springfield, Ohio, without amendment. It recites that the judgment and decree was rendered against Nettie L. Herr in favor of the bank and it further provides that the principal and surety:

“Shall abide and perform the order and judgment of said Court of Appeals, and shall pay all money, costs and damages, which may be required of or awarded against Nettie L. Herr by said Court of Appeals.”

It is apparent from the tenor of the instrument that it is made in favor of and to protect the bank and the amendment would not be such a departure from its effect as to constitute a new and different bond.

The second and third branches of the motion to dismiss will be overruled, and the motion of appellant to amend will be sustained.

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


author: By HORNBECK, PJ.

text:
    LAGONDA NATIONAL BANK OF SPRINGFIELD, Plaintiff-Appellee, v. ROBNETT et, Defendants-Appellants and HERR, Defendant-Appellant.
    No. 536.
    Decided May 1, 1957.

      Arthur J. Todd, Keifer & Keifer, Springfield, for plaintiff-appellee. Durfey, Martin, Browne & Hull, Springfield, for defendants-appellants. (Frieds)
    Lawrence E. Laybourne, George C. Collins, Springfield, for defendant-appellant. (Herr)
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law and fact from a decree of the Common Pleas Court quieting the title of the plaintiff to the following tract of land:

“Situated in the City of Springfield, County of Clark, State of Ohio, and bounded and described as follows:

“Beginning at a point on the east line of Fountain Avenue 71 feet, more or less, from the southwest corner of Lot No. 55 in Demint’s Plat of the City of Springfield (which corner is the intersection of the east line of Fountain Avenue and the north line of Main Street); thence north with the east line of Fountain Avenue 10 feet to the southwest corner of the tract owned by Carl K. Fried, Jr.; thence east with the south line of last mentioned tract 59 feet to the southeast corner thereof; thence south 10 feet with the west line of land owned by Carl K. Fried, Sr.; thence west 59 feet with another line of premises owned by Carl K. Fried, Sr., and with the north line of premises of Lagonda National Bank to the place of beginning.”

The petition avers that defendants, Robnett, and Tomlinson, their heirs and devisees, have pretended estates or interests in the premises described to the title of plaintiff which are unfounded claims and constitute clouds on the title of plaintiff to the real' estate. That defendants, Carl K. Fried, Jr., and Nettie L. Herr, each claim a right and interest in the premises adverse to the plaintiff; that the defendant, Carl K. Fried, Sr., has an easement for a right-of-way on said strip of land described in the petition from his 22 feet of land abutting on the south of same, but has no other right or interest therein.

We hereinafter refer to the plaintiff as the Bank, to Robnett and Tomlinson as title owners, to Carl K. Fried, Jr., as Fried, Jr., to Carl K. Fried, Sr., as Fried, Sr., and Nettie L. Herr, as Herr.

Fried, Sr.’s, answer sets up his easement as alleged in the petition; Fried, Jr., answers and says that he has no claim or interest in the premises described in the petition adverse to the title asserted by plaintiff.

Herr answers, and after general denial, avers that she is the owner of 14 feet, a part of Lot 55, fronting on Main Street and extending north 99 feet and 14 feet in width “with all the privileges of using an alley ten (10) feet wide running from Fountain Avenue eastward in the rear of the Lagonda National Bank Building and the now Fried Jewelry Store.” She further avers that “the ten foot strip of land described in plaintiff’s petition and claimed by plaintiff is now and for more than fifty years has been a private alley and that her above described lot and building thereon is adjacent to the east end of said alley and that she and her predecessors in title have, in common with plaintiff and other owners of property adjacent to the alley, for more than fifty years continuously and without interruption or adverse claims thereto, had an easement for a right-of-way over and upon said alley and have used an occupied said alley for the purpose of the ingress and egress to and from their respective buildings to and from Fountain Avenue.” She prays that her easement and right-of-way in and over the said alley be quieted against any adverse right, estate or interest of the plaintiff or any of the defendants herein; and for such other relief as equity and the nature of the case may require.

In answer to the cross-petition of defendant Herr, the Bank denies that Herr is the owner of the privilege of using the alley described in her answer and denies "that she has any grant to any rights in said strip of ground by any deed or conveyance to her or her predecessors in title; denies that the strip has been a private alley and denies that the strip is adjacent to the land owned by Herr or that it abuts thereon and denies any right of Herr to an easement in the strip by reason of adverse possession and says that although Herr has occasionally gone upon or over the strip with the consent of plaintiff, it has during more than fifty years last past, maintained an iron gate at the west end of the strip which it kept locked except when it had occasion to enter the same or when it allowed others to pass on, into or over it.

Upon trial had the Common Pleas Court found for plaintiff Bank, and quieted its title as prayed and found against defendant Herr on the issues drawn on her cross-petition.

The appeal comes to this court for trial de novo. Considerable testimony has been taken in this court which was not available to the Common Pleas Court Judge and this testimony in particular, affords facts which are helpful in resolving the issues which were not presented at the first hearing.

It is conceded by all parties that the record title to the strip of land described in the petition is in Robnett and Tomlinson, their heirs or devisees who are unknown.

It appears that the bank owns 37 feet of land part of Lot 55 fronting on Main Street and extending back of that width, 71.5 feet to the south line of the strip. Carl Pried, Sr., owns 28 feet adjacent to the Bank’s land, fronting on Main Street, part of Lot 55, facing on Main Street the west line of which is the east line of the Bank, 22 feet of which extends north to the south line of the strip, six feet of which extends back 96-% feet and extending to and along the west line of Herr. So that, there is a six foot piece of land between the west line of Herr and the east line of the strip.

In the conveyances through which the Bank took title, easements in the strip were granted which were described either, “Also all the right, title and interest of the grantor herein in the private right-of-way north of said premises,” Deed of Bancroft to the Bank, 1910, or, “Also all the interest and right of the grantors herein in the private right-of-way north of said premises belonging to said Moore and other owners of part of said lot No. 55 in said city.” (Deed Moore to Bank 1881.)

No defendant who has any title to land abutting the strip or land adjacent to that of the Bank is denying its claim in this action.

It is contended by the Bank that it made a prima facie case, that there being nothing to deny it, it is entitled to the relief sought. It is true, that if the testimony adduced, undenied and uncontradicted, meets the requirements of proof to establish the claim of the Bank that it is entitled to have its title quieted because of its adverse possession and use of the strip, it is entitled to the relief sought. However, the court must find, even though it is not denied, that its user of the strip under the facts appearing meets the requirements of the law to establish title by adverse possession.

The indicia of title to which the Bank refers are, the erection of gates at the west end of the strip which gates are on the south anchored to the building of the Bank and on the north to a building owned by Fried, Jr., its retention of the keys to the gates, the erection of certain curbs and window ledges along the strip; the repair in three instances of part of the paving in the strip; the payment of taxes on the strip to the extent of the 37 feet frontage owned by the Bank.

The Bank has no door fronting on the strip. There is no direct evidence that the Bank erected the gates. The fact that at one end they are anchored to its building is some evidence that it erected them. However, they are also anchored at the other end to another building. That the gates have been where they are now located for more than 21 years is established and that the Bank had a key to the gates which it permitted those desiring to use the gate, including Herr, to use. However, there are other doors of iron along the strip in front of entrances to other premises abutting on the strip and there is an iron door similar in composition and appearance and age at the door of the property of Herr, facing on the six foot adjacent to the strip.

As late as 1934 in a deed Lagonda Citizens National Bank * * * to Lagonda National Bank * * * which recites that grantor is the same banking corporation formerly known as Lagonda National Bank, etc., conveying all of Lot 55 now owned by the Bank, an easement in the strip is granted as “all the right, title and interest of .grantor herein in and to the private right-of-way north of said premises.” (Emphasis ours.)

So that, there is no doubt that at the time the Bank took title to its premises, it had nothing more than an easement in the strip. “It is well established that a possession is not hostile or adverse if the entry is by permission of the owner, or the possession is continued by agreement; such an occupancy consequently confers no right. Avery v. Baum, Wright, 576; Land v. Kennedy, et al, 13 Oh St 42; Dietrick v. Noel, 42 Oh St 18; Board of Education v. Nichol, et al, 70 Oh Ap 467.

“Where a right to use is conferred by grant, any use reasonably consistent with such grant will be referable to such grant and will not be deemed adverse.” Kelley v. Armstrong, 102 Oh St 478.

If this strip was an alley, or a right-of-way, it was a private alley or right-of-way (see deeds) intended not for the use of the public generally, but for those who had the right to its use. The erection of the gates was not necessarily inconsistent with that use, especially if the rights of other owners of parts of Lot 55 were recognized as they desired to open the gates and to use the strip.

Second syllabus Gibbons v. Ebding, 70 Oh St 298:

“The owner of the servient estate may use the land for any purpose that does not interfere with the easement, and in the absence of anything in the deed or in the circumstances under which it was acquired or used, showing that the way is to be an open one, he may put gates or bars across it unless they would unreasonably interfere with its use.”

See also Pavey v. Vance, 56 Oh St 173.

The plaintiff’s building housing a bank and the adjoining premises occupied as a jewelry store, both abutting on the easement, the erection of the gates could very well be said to be appropriate and incident to the enjoyment of the easement by the owners of the dominant estate. Indeed, it is probable that they may have exercised that right even against the owners of the servient estate as long as such use did not interfere with the reasonable use of the strip by the owners. 17 Am. Jur. Easements, 993, et seq.

The encroachments on the strip placed by the Bank were minor in character and would not materially impair its use.

Concerning the repairs made by the Bank.

“The burden devolves upon the owner of the dominant estate, of making whatever repairs are necessary for his use of the easement. It is said by a learned author that “As a general proposition, whoever has an easement, like a right-of-way for instance, in or over another’s premises, is the one to keep it in repair.” Washburne on Easements, 730. And by another, that “Every grantee of a right-of-way, to be exercised and enjoyed over or through the land of the grantor, must himself repair the way, if he desires to have it repaired and kept in repair for his use, or if repairs are necessary to prevent the enjoyment of the right becoming an annoyance and nuisance to the owner of the servient tenement, unless the grantor himself has expressly undertaken the performance of that duty.” Addison on Torts, 301-302. Opinion in National Exchange Bank v. Cunningham, 46 Oh St 589.

The payment of the taxes did not extend for the full period of 21 years. While none of these acts of plaintiff in the use of the strip alone is controlling, some of them may be held to be consistent with the Bank’s use of the strip as an owner and undenied and uncontradicted will support a decree quieting plaintiff’s title, and will have the effect of stabilizing the record title.

We come then, to the claim of Herr, that she is entitled either by grant or prescriptive use to an easement over the strip.

It is interesting to note that several of the conveyances introduced in evidence refer to the strip and to the right of the owners of any part of Lot 55 to its use. It is true, that it is doubtful if Herr, not owning any land abutting the strip can claim the right to use it by any grant to Herr or her predecessors in title in evidence. But it appears from the record that Herr had an easement in a right-of-way over the six foot strip adjacent to her west line and extending over to and abutting the strip on its east line. In Ohio, color of title is not necessary to the existence of title by adverse possession. Paine v. Skinner. 8 Ohio 159; McNeely v. Langan, 22 Oh St 32; Humphries v. Huffman, 33 Oh St 395.

If the record supports Herr’s contention that she has established a prescriptive right to the use of the strip, then she is entitled to the relief sought in this action. The record, particularly as developed in the hearings before the Master in this Court, is to the effect that for the last five years, Herr’s tenant, a proprietor of a shoe store has used the strip as an entrance and exit to receive large shipments of shoes, for movement from the store to a shoe repair shop along the line of the strip and that the gates at the west end of the strip were opened by securing a key not from the bank, but from another owner along the strip. Of course, as pointed out by counsel for plaintiff, this particular user was not established for the requisite period of 21 years. However, the testimony of Miss Herr is corroborative to a degree of similar use of the strip for the requisite period. The Will of Mary E. Herr, of March 25, 1916, in connection with a devise therein describes property having a frontage of 14 feet on Main Street and adds: “with all the privileges of using an alley 10 feet wide running from Fountain Avenue eastward in the rear of the Lagonda National Bank Building and the now Fried Jewelry Store.” It is probative of the fact that the use made of the strip was done under a claim of right by Mary E. Herr, and like user continued by Nettie L. Herr. Helen M. Leitschuh testified that in 1911, 12 or 13, or 13, 14 and 15, she was connected with the shoe store operated in the Herr building, that she recalled the alley, that it extended to the store; that it was used while she was there for the placing and disposal of trash which regularly would be picked up by a man who would come in through the alley. She states also that the gates were open in the daytime. Mr. Martin R. Kearns, Superintendent of a plumbing company, made experiments in the strip and, as an' expert, testified that there was a gas line and a sewer line under the strip extending to and servicing the Herr property, the sewer extending to Fountain Avenue. Mr. Albert J. McGuire, a realtor, examined the physical aspects of the alley or right-of-way and said that it had an iron drain in the center thereof which drained toward Fountain Avenue; that the iron gates at the west end of the strip at Fountain Avenue and the gates on the Fried, Sr., building were similar in nature as was the gate at the Herr building; that they were about the same age; that a vent on the mezzanine door of the bank extended about 24 inches into the strip, about 18 feet above the surface thereof; that there are downspouts from the buildings extending about six inches into the driveway; that retaining wall back of windows in the basement of the bank about four inches high extended about 14 inches into the strip; that there is a step from a rear door in the Fried, Sr., building which extends into the strip about eight inches and the second step extends about 14 inches; that the rear door in the Herr building looks directly out into the strip, there is a step leading from it, downspout to catch basin at the top, which disappears into the driveway; a coal chute extending into the building; that the sewer extended west out of the building and into the strip. There were indications that there had been a former sewer line there extending in the same direction as the present one. That the gas lines come to the wall of the building into the basement and are extended into the strip: that the gas service comes through the alley to the Herr property. That there is an entrance to the shoe repair shop in the Fried. Jr., building from the alley; that there are three bay windows of this building extending into the alley. The witness describes many other physical conditions indicative of the long use of the strip as appurtenant to the buildings abutting it. Mr. Edward Dannemann, District Plant Superintendent for the Ohio Fuel and Supply Company, testified that the gas service extending from Fountain Avenue through the alley to the Herr property had been there for forty or fifty years. It appears from later testimony of Mr. Green that the plaintiff, Bank, paid for cementing in the alley, in the amount of $17.60, done by Ohmart about 1908. The alley is continuous from Herr’s door to Fountain Avenue and has the appearance of long use.

From this evidence which we have mentioned and other testimony in the record to which we do not allude, we are satisfied that defendant, Herr, has established the averment of her cross-petition; that she is entitled to an easement by prescription in the strip set out in plaintiff’s petition; that she used the alley or strip openly as a matter of right and adversely to the owners for more than 21 years prior to the institution of the suit herein. Pavey v. Bank, et al, 56 Oh St 162.

It should be observed that the user by Herr necessary to her title by prescription to an easement in the strip need only be adverse to the owners of the strip who were Tomlinson and Robnett or their heirs or successors, and not to Fried, Sr., the Bank, or Fried, Jr.

The Bank was not in the status of title owner of the strip during the period of Herr’s user thereof and prior to the decree quieting title in 1956. Upon the decree in this case the Bank’s title to the strip dates back, as against the title owners, to its first adverse user. 1 Am. Jur. 797, 2 C. J. S. 805. But, Herr and her predecessors in title were asserting their right of user to an easement in the strip before, as early as 1841 or 1852, and during the ownership of the Bank in that part of Lot 55 in Demint’s Addition adjacent to the strip and Herr’s and the Bank’s user was adverse to the title owners. And the user of the strip by the Bank was at no time inconsistent with or adverse to the easement of Herr. It was not inconsistent that Herr should be acquiring an easement in the strip during the time that the Bank was acquiring title by adverse possession. 2 C. J. S. Adverse Possession, 568, Par. 51; Adverse Possession, 646 Par. 89.

We hold that the plaintiff is entitled to a decree quieting its title to the strip as prayed in the petition; with the exception of an easement of Fried, Sr., to 22 feet, thereof, as set out in the petition and an easement of defendant. Herr, in the strip as prayed for in her cross-petition.

Decree accordingly.

WISEMAN and CRAWFORD, JJ, concur.


text:
    UNITED STATES FIRE INSURANCE CO., Plaintiff-Appellant, v. PARAMOUNT FUR SERVICE, INC., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24149.
    Decided November 21, 1957.

      McCreary, Hinslea & Ray, for plaintiff-appellant.
    Kitchen & Messner, George W. Leyshon, of Counsel, for defendantappellee.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered on the verdict of a jury in the sum of one dollar against the defendant-appellee in the Common Pleas Court of Cuyahoga County, Ohio. The action is one sounding in negligence.

The petition alleges that the plaintiff’s predecessor, an insurance company, authorized to do business in Ohio, insured a fur coat, the property of Betty Bunin, the face amount of the policy being $1800; that Betty Bunin left the coat for summer storage with the Goldman Fur Company in May of 1949. The Goldman Fur Company, in turn, deposited the coat for storage with the defendant. By reason of the negligence of the defendant, as set forth in the petition, and particularly in leaving its truck in which the fur coat was being returned to the Goldman Fur Company unguarded, unattended and unlocked on the public thoroughfare, it was stolen by persons unknown to the plaintiff. That by reason of the policy of insurance protecting against theft, issued to Betty Bunin, the plaintiff’s predecessor was compelled to and did pay her the extent of her loss caused by the theft of her coat in the sum of $1800, and in consideration for which she assigned to the plaintiff an irrevocable power to prosecute this action to collect its loss from the defendant because of defendant’s negligence in the premises.

The defendant’s answer admits Betty Bunin’s ownership of the fur coat; that she delivered it to the Goldman Fur Company for summer storage, placing a value thereon for storage purposes of $100, thereby limiting the liability of the Goldman Fur Company, in case of loss to that sum. It is further alleged that the Goldman Fur Company, as agent for Betty Bunin, stored the coat with the defendant, placing a value thereon of $1.00, whereby its liability for loss was by contract fixed in that amount. The defendant further alleges that pursuant to the bailment contract between this defendant and the Goldman Fur Company, as its bailor, the storage charges were based on the valuation placed thereon by the fur company.

The plaintiff filed, by reply, a general denial of the allegations of defendant’s answer that controverted the allegations of its petition.

The facts for the most part are not in great dispute. It is conceded by both plaintiff and defendant that Betty Bunin was the owner of a fur coat which was insured by the plaintiff’s predecessor for $1800; that in the Spring of 1949, she deposited the coat with the Goldman Fur Company for cold storage during the summer months. Mrs. Bunin requested her bailee to permit her to store the coat at as low a valuation as she could to avoid being charged for additional insurance during the time the coat was held in storage. The Goldman Fur Company knew the coat was valued at and insured for $1800, because it was its affidavit (as to its value), that enabled Mrs. Bunin to insure the coat with the plaintiff for that amount. They also knew that the value of $100 was being put on the coat for the purpose of avoiding the cost of double insurance while the coat was in storage. There is likewise no dispute but that the Goldman Fur Company entered into a bailment agreement with the defendant to store Mrs. Bunin’s coat with it and that the value placed on the coat in this bailment contract was $1.00 and further that such valuation was the basis upon which the charge for the storage-service was determined. Such value was also intended to fix the contractual limit of defendant’s liability for loss or damage. There is also no dispute but that the coat was stolen from defendant’s truck while defendant was attempting to redeliver it to the Goldman Fur Company, the theft taking place when the truck was left unattended on a public street while the driver and his helper were making other deliveries. Nor is there any dispute but that the plaintiff paid Betty Bunin $1800 by reason of its policy of insurance and that the plaintiff was subrogated to her rights, whatever they may be, against the defendant, which subrogation was evidenced by a subrogation receipt.

The plaintiff claims the following errors:

“1. In instructing the jury that its verdict, if for the plaintiff, should be in a sum not in excess of $100.00 plus interest.

“2. In overruling the motion filed by the plaintiff-appellant for a judgment for $100.00 in its favor non obstante veredicto.

“3. In overruling plaintiff-appellant’s motion for a new trial.”

It must be admitted that on the face of the record the rights of this plaintiff as against this defendant are circumscribed by and go to the full extent .of the rights that could have been prosecuted by Betty Bunin for the loss of her fur coat by the defendant. Such rights were acquired by the subrogation receipt delivered to the plaintiff’s predecessor upon the payment of the value of the coat, as its obligation under the policy of insurance required, after proof of loss had been made. The so-called loan receipt presented in the record in no way modified the terms of the subrogation receipt.

The relationship created between Betty Bunin and the Goldman Fur Company by the deposit of her fur coat with the fur company for storage was that of bailor and bailee. It is clear that the bailor desired to pay the minimum cost for storage and not to have added thereto the cost of additional insurance which would result by declaring its full value. The insurance the bailor had already contracted for covered its full value. A bailment contract which limits the liability of the bailee for loss of the bailed property, even for loss occasioned by his negligence, is an enforceable agreement where the parties deal at arms length and the rate to be charged is based on the valuation declared.

The claim that there is evidence to support defendant’s allegation that Betty Bunin constituted the Goldman Fur Company her agent to deliver her coat into the custody of the defendant as bailee of the Goldman Fur Company for summer storage, whereby she became a party to such contract, cannot be sustained.

The evidence relied on is as follows:

“Q. Now, when you took this coat over to Mr. Goldman, you testified that you felt he was a reliable and conscientious owner of a fur store?

“A. I did.

“Q. You wanted him to look after and take the proper precautions in the caring of your beaver coat?

“A. I did.

“Q. And you expected that he would use his judgment in so dealing with it and handling it, so that it would be properly cared for?

“A. 1 do.

“Q. And do anything in his judgment necessary for the proper handling and dealing of the coat?

“A. Yes.”

This evidence, when considered in connection with her complete story as shown by the record, falls far short of establishing that she intended to appoint the fur company (her bailee created by contract) an agent to bind her to a contract which such bailee might make in bailing the coat to a third person to carry out the obligation which the fur company had assumed in its contract with her.

Betty Bunin also testified as follows:

“Q. Now, you also knew at that time that Goldman Furs had no vault there to store furs and that they would have to send it out to a fur storage?

“A. I didn’t know that.

“Q. Had you done business before with Mr. Goldman?

“A. The fall before that I brought the coat in and he altered it for me, and he had it, and during the time he was altering it for a period of a couple of weeks, and I would come for a fitting, and when I came for the fitting he always called for someone to bring it out of somewhere, and I would sit there on the lounge and wait for the coat to be brought to me.

“Q. That was in the Old Colonial Arcade?

“A. I believe so; yes.

“Q. And you didn’t know that he didn’t have cold storage for furs in- the Arcade?

“A. No. It was brought out from somewhere, and I would wait until the coat was brought to me.”

The denial of this claim of the defendant is also supported by the fact that Betty Bunin’s bailment contract (with the fur company) was based on a value for storage purposes of $100, while the bailment contract which the fur company made with the defendant (to which the defendant attempts to establish her consent) was based on a value for storage purposes of $1.00.

A bailment relation is one which is created by an express or an implied contract followed by delivery of the property into the exclusive possession of the bailee. The terms of the agreement, including those which are imposed by implication, must be found from the evidence. A bailment relation requires more than an agreement between the parties. A delivery of the subject matter or property to be bailed must be made before the bailment relationship can come about. The bailment agreement presupposes that when delivery of the property is made to the bailee, that he, as an independent contractor, will carry out the bailment purpose in dealing with the property. So long as the bailee in a mutual benefit bailment acts within and lawfully carries out the bailment purpose, the bailor has no legal right to retake possession of the property without the bailee’s consent and to do so without such consent would make the bailor a converter of the property. The relationship of bailor and bailee is one in which the bailor trusts the possession of his property to the bailee for the accomplishment of the bailment purpose. In most cases the bailor seeks out the bailee because of his special skill or ability to accomplish the purpose intended and not for the purpose of having him select others, by independent contract, to do the work. This must be particularly true where, as here, there is just one thing to be done — that is to safely exercise such competent skills as are necessary to provide cold storage and to protect a valuable fur coat from damage or loss in a reasonable manner during the summer season. Circumstances might arise, because of the nature of the bailment contract, where a bailee, either by his agreement or by custom, would be expected to seek out others to help accomplish the bailment purpose. In cases, however, where the personal dependability or skill of the bailee to accomplish a single purpose is the basis of the relationship, the employment of others, by independent contract, to carry out that bailment purpose, would be an exception to the general rule.

This court, in the case of Aetna Casualty and Surety Co. v. Higbee Co., 80 Oh Ap 437. 76 N E. 2d 404, said in the fourth paragraph of the syllabus:

“4. The bailee, in attempting to establish the right under the bailment contract to deliver the property to a third person to accomplish the bailment purpose, may offer evidence tending to establish a custom in the community by which persons engaging in like business conduct such business in whole or in part through subagents and that such custom or usage was known to the parties expressly or by implication and that the bailment contract was made with reference thereto.”

In 28 Michigan Law Review 196, the author, in commenting on the case of Rourke v. Cadillac Automobile Co., 268 Mass., 7. 167 N. E. 231, where the court held that a bailee, unless expressly prohibited from doing so, was authorized to employ others to do some part or all of the work, said:

“It is the owner’s right to say who shall paint his vehicle; if the bailee presumes to exercise that right, unless permitted by the bailment contract, it is an exercise of dominion over the property inconsistent with the right of the owner, and therefore a conversion. Laverty v. Snethen, 68 N. Y., 522; Staley v. Colony Union Gin Co. (Tex. 1914), 163 S. W., 381; Boldewahn v. Schmidt, 89 Wis., 444, 62 N. W., 177. Defendant would then be liable for damage occasioned to the automobile while in possession of S, no matter from what cause and entirely regardless of the question of negligence. Fryer v. Cooper (S. D. 1928), 220 N. W., 486. As a general rule, it is sufficient if the ‘bailee does the work by the means of other persons, or subagents, if the work be such as may ordinarily be done by others in an equally satisfactory manner.’ But where the work is such that the talent and skill of the particular bailee may fairly be presumed to be contracted for, ‘he is not allowed to substitute another person, without consent of the bailor.’ Story, Bailments (8th Ed.) Section 428, p. 366; Russell’s Express v. Bray’s Garage, 94 Conn., 520, 109 A.. 722. In the instant case it was in the province of the jury to find, if such were the evidence, that the contract of bailment contemplated performance of all the work by defendant, Goad v. Harris, 207 Ala., 357, 92 So., 546: Dolphin v. Davis, 183 Ill. App.. 118. It was improper, therefore, to hold as the lower court did, that as a matter of law defendant was not guilty of conversion in sending the car to S.”

• The contract between Mrs. Bunin and the Goldman Fur Company does not provide for “farming out” the work to be done by the fur company nor is there a single word of evidence tending to establish a custom known to the parties by which fur storage is generally accomplished by the average fur store by contracting with others for the actual performance of such service. There is likewise no evidence to support the defendant’s claim that the Goldman Fur Company was employed to act as the agent of Betty Bunin to select a substitute to actually store her valuable coat.

Without the original bailor’s consent to .a rebailment of the property, the legal responsibility of the first bailee for the loss of the goods by the sub-bailee would become a very difficult question. Where consent is given, is it the duty of the first bailee only to exercise due care as agent in selecting a suitable person to accomplish the bailment purpose, it being remembered that (as under the pleadings in-this case) successive bailment relationships were created by independent express contracts, the parties to each become independent contractors? If the duty just suggested circumscribes its complete obligation to the first bailor, then the first bailee in such bailment would not be concerned with the conduct of the second bailee in carrying out the bailment purpose. This is not the case where the first bailee farms out a part of the work to be accomplished without attempting to rebail the property.

Where the first bailer pays the cost of storage in advance, can a second bailee, holding the goods without the first bailor’s consent or approval, express or implied, maintain possession of the goods after the work is finished, claiming a bailee’s lien because the first bailee has refused or is unable to pay his obligation to the second bailee? It seems certain that without his consent clearly' expressed, an original bailor is not by implication of law, deprived of a direct action as for conversion against his bailee who attempts to assign his bailment responsibility to another by independent contract who causes damage to or loss of the goods and that such second bailee, having no contractual relations with the original bailor, would be liable to him to the full extent for any damage to or loss of the property, irrespective of any limitation of liability in his contract of the first bailor with the first bailee.

The jury, having found for the plaintiff in returning a verdict of $1.00 upon which judgment was entered against the defendant, settled the issue of negligence. The only question remaining, therefore, is that of damage. The court instructed the jury on this subject as follows:

“The measure of damages would be the reasonable value of the fur coat owned by Mrs. Bunin when she placed it with Goldman Fur Company on April 26. 1949 for storage. But in no event can the damages exceed the sum of $100,00, that being the value placed on the fur coat by Mrs. Bunin when she delivered it to the Goldman Fur Company on April 26, 1949, for storage * *

This instruction did not correctly state the law. As before indicated, where one is in possession of an owner’s property without the owner’s consent, and by virtue of his negligence the property is lost, the one in possession is liable to the owner to the full extent of the damage occasioned by such loss.

There is no dispute in this record as to the true value of the coat at the time it was stolen from the defendant, which loss the plaintiff paid to Betty Bunin.

After verdict and judgment, the plaintiff filed a motion for judgment for $100 and costs non obstante veredicto based on the limitation of liability in the bailment contract between Betty Bunin and the fur company. This court having found that such limitation does not inure to the benefit of the defendant for the reasons stated, the trial court should have sustained the plaintiff’s motion and applied the correct rule as to damage.

Since the negligence of the defendant was established by the verdict of the jury and the facts on the subject of damages are not in dispute, this court will proceed to enter the judgment which should have been entered by the trial court against the defendant in the sum of $1800, with interest from the date of the judgment, and costs. Defendant’s exceptions will be noted.

HURD, J, KOVACHY, J, concur.