author: By SKEEL, J.

text:
    ROCOS et, Plaintiffs-Appellants, v. GAYDOS, Extrx. et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24815.
    Decided October 22, 1959.
    Morley, Stickle, Keeley & Murphy, Andrew Pangrace, for plaintiffs-appellants.
    George E. Fedor, for defendants-appellees.
   OPINION

By SKEEL, J.

This appeal comes to this court on questions of law and fact. The decree of the trial court was for the defendants. The issues of fact are presented upon the amended petition of the plaintiffs and the joint answer to the amended petition filed by the defendants.

The plaintiffs are Mary Lestock, a daughter of George Antolik, Sr. (now deceased), said daughter being an incompetent person here represented by her guardian (husband), the remaining plaintiffs being the three daughters of the said incompetent. The defendants, George Antolik, Jr., and Elizabeth Gaydos, are the remaining children of George Antolik, Sr., who was eighty-one years of age at the time of his death, July 22, 1955.

The amended petition alleges that George Antolik, Sr., executed a will ten days after his wife’s death on March 31, 1955, by which he divided his property equally among his three children, the share of his incompetent daughter, Mary Lestock, to be held in trust for her until she is restored to mental health, or if such event does not occur before her death, then such share to be given upon her death to her daughters who are herein named as plaintiffs, share and share alike.

It is alleged that the wife of George Antolik, Sr., died on March 31, 1955. Further, that during the lifetime of George Antolik, Sr., and his wife, Lizzie Antolik, they were the owners, among other property, of two joint and survivor savings accounts, one in the Society for Savings main office, with a balance of $16,695.67 on the date of the death of Lizzie Antolik, and the other account in the Madison Branch of the Cleveland Trust Company, then having a balance of $2504.71. They also owned the two family house in which they occupied the first floor, located on Ridgewood Drive in Lakewood, having an appraisal value of $23,500.

It is alleged that on the day following the day of the death of George Antolik’s wife, that is on April 1, 1955, the bank account in the Cleveland Trust Company was closed and a new account was opened by the deposit of the money withdrawn from the Cleveland Trust Company in a joint and survivor account in the Home Federal Savings and Loan Association in the names of George Antolik, Sr., and the defendants, George Antolik. Jr., and Elizabeth Gaydos. On the same day, the joint and survivor account of George Antolik, Sr., and his deceased wife in the Society for Savings was closed out by opening a new joint and survivor account in the names of George Antolik, Jr., and Elizabeth Gaydos in the Society for Savings and the balance of the account of $8,000 was delivered by the bank to George Antolik, Sr., $4,000 in cash (one hundred dollar bills) and $4,000 in a bank check payable to George Antolik, Sr. On April 5, 1955, this check was deposited to the joint and survivor account above set out in the Home Federal Savings and Loan Association, making the balance on deposit in that account on that date $6504.71.

It is alleged that upon the death of George Antolik, Sr. (who had been appointed executor of his wife’s estate under her will) the defendant, Elizabeth Gaydos, who was appointed executrix of her father’s estate, also became the executrix of her mother’s estate d. b. n. with will annexed, and as executrix of her father’s estate, did not list as an asset of his estate the four thousand dollars, wherefore it is alleged that the defendants divided this money into equal shares and took it for their own purposes. It is also alleged that after the death of their father, July 22, 1955, the defendants withdrew, for their own purposes, and in equal shares, the money in the Home Federal Savings and Loan Association in the sum of $6553.49, which included the dividend since the deposit was made, and the $8782.62 in the Society for Savings, which included accrued interest, making a total taken from the two accounts of $15,336.11, this in addition to the four thousand dollars not accounted for as assets of George Antolik, Sr.’s estate of over $19,000 in all. It is also stated that as executrix of her father’s estate, Elizabeth Gaydos has made no claim for any part of the money taken from her father’s accounts as assets of his estate.

It is also alleged that the decedent, George Antolik, Sr., died of cerebral arteriosclerosis, required medical attention, was finally put in a sanitarium where he died; that because of the decedent’s infirmity and the reduced activity of his mind at eighty-one years of age, he was not a free agent to act for himself and was easily susceptible to influence and appeals to emotion. It is alleged that the defendants, Elizabeth Gaydos and George Antolik, Jr., used undue influence and overpowering persuasion to induce the decedent to give up control or to surrender legal control of all of the money in his bank accounts so as to defeat the rights of their sister, an incompetent, to have her equal share in her father’s estate.

The plaintiffs pray for a declaratory judgment requiring the defendants to account to the estate of their father for the funds taken by them by undue influence, fraud and in breach of the confidential relation they held with their father because of his age, dependency and condition of mind under all the circumstances on the day after the loss of his wife, that being the day when he was unlawfully induced to surrender legal control of his accounts.

The defendants admit all the allegations concerning the transactions dealing with the bank accounts of George Antolik, Sr., and the withdrawal of all of the funds then remaining in the bank after the date of his death. The answer suggests a correction of the date the four thousand dollar bank check of the Society for Savings was deposited in the Home Federal Savings and Loan Association. Admittedly the plaintiffs’ petition was in error one day as to the date of this deposit.

The answer then denies all the remaining allegations of the petition which in legal effect is to deny that the decedent was mentally incompetent on or about April 1, 1955, or that undue influence was used to induce him to give up control of his bank accounts. There is no claim or affirmative allegation in the defendants’ answer that the monies they admittedly took out of the accounts of the decedent prior to and after his death were, in fact, gifts.

There is no controversy but that the bank accounts totaling some nineteen thousand dollars (all of the liquid assets of George Antolik, that the record discloses, which he had under his complete control on March 31. 1955, the day his wife died) were transferred on the following day (April 1, 1955), either to the complete possession of the defendants or put under their legal control with the exception of the $4,000 bank check which was deposited to the ioint and survivor account in the Home Federal Savings and Loan Association four days later. The issues to be determined are first, the mental capacity of George Antolik, Sr., on April 1, 1955, to dispose of his money in the way it was, if, in fact, he proposed such disposition, and second, whether such disposition of the money was accomplished by undue influence under all the surrounding circumstances.

A careful examination of the evidence submitted discloses that George Antolik, Sr., had been a car washer for the Cleveland Transit System (and its predecessor) for many years. He retired in the early 1940’s the exact date not being known to the defendants. The Society for Savings account was started in 1924 with a deposit of two hundred dollars and from that day until June 12, 1951, carried balances never exceeding $2700. On that day, $12,700 was deposited, which was unquestionably the proceeds of the sale of a house of George and Lizzie Antolik to Frank Stepka. The deposit of the money was in their joint and survivor account with no indication whether the money was that of the husband or the wife. There is sound authority that as between husband and wife, money in a joint account is presumed to be owned equally, where, as here, it is clear that such money was not derived from the wages of the husband and there is no explanation as to the basis of the account other than the contract with the bank. There can be no doubt but that Elizabeth Gaydos knew all about the savings accounts of her father and mother when she filed her inventory and appraisement and request to fix inheritance tax. At no point in the probate proceedings did she mention the apparent possibility that the estate of her mother had any interest in the funds in the account from which she had received personal benefits.

Before giving consideration to the primary questions presented, some parts of the evidence will be pointed out to determine the credit the court should give to the testimony of some of the witnesses.

The attitude of the witness and defendant George Antolik, Jr., toward his father is shown by the following: After testifying to the fact that in 1949 he borrowed $4500 from his father with which to purchase a house which he said he paid back and was not indebted to his father at the time of his father’s death:

“Q. Did they loan you any other sums of money?

“A. Sure, they loaned me money for a car.

“Q. And did you repay them?

“A. I certainly did.

“Q. So you say that at the time of the death of your mother, you did not owe your father or mother any sums of money?

“A. No; I didn’t.

“Q. Well, did your father make you pay interest on the money?

“A. Certainly did not. What is a father for if he doesn’t help out his son?”

This same witness was called on cross-examination where, after explaining that after lunch'on the day of his mother’s death (April 1. 1955), his father said: “he wanted to take care of things.” “He wanted me to drive him to the Cleveland Trust Bank on Madison. He (the father) did not tell me what he wanted to do.” The witness drove his father and sister to the bank where his father went to the teller by himself explaining that he and his sister “stood by the door.” “We didn’t even come close to him.” His father got a check for $2504.71, closing out the account which the witness testified he put in his pocket. The witness then said his father wanted to go to the Society for Savings so he drove by his house, picked up his wife and went to the Society for Savings, where his sister, his wife and the witness “stood at the side” while his father transacted his business with the teller. The business at hand was closing the joint and survivor account of George Antolik, Sr., and his wife who had died the day before. The account had a balance of $16,695.67, $8,695.67 of which was redeposited in a joint and survivor account in the name of the defendants who signed signature cards as owners of the new account. The manner of the withdrawal of the balance of the account was well known to the witness even though it took place before he or his sister were called over to the desk, where new accounts were received, for the purpose of signing the necessary signature cards. The father received $4,000 in cash (one hundred dollar bills) and a bank check for $4,000. This witness then testified that on the way home they stopped at the Home Federal Savings and Loan Association, where his father deposited the $2504.71 he received from the Cleveland Trust Company and the $4,000 delivered to him from the Society for Savings when he said “All told, there was $6,000 plus.” He then testified he dropped his wife off at home to get supper on the way to his sister’s house where his father gave the defendants $2,000 each and delivered to them the joint and survivor savings account passbook for the $8695.67 deposit made at the Society for Savings in the name of these defendants.

At a deposition taken in October 1956, this defendant admitted he testified under oath that the amount of cash his father withdrew from the joint and survivor savings account of his father and mother was $5,000 (fifty one hundred dollars bills) and that he gave the money to his sister and himself in the bank, his sister placing her share in her pocketbook and he placing his share in his pocket while in the bank.

Elizabeth Gaydos, the defendant herein, and sister of George Antolik, Jr., testified that her father was taken, at his request, after lunch, on April 1, 1955, to the Cleveland Trust Company on Madison Avenue, where he closed out his joint and survivor account belonging to himself and deceased wife, the balance being $2504.71. The visit was made because he said “Well, we have to get that all in order. I told you I want to get everything in order.” Before that he had said on the morning of April 1st, “Look how fast mother went. So I want to get everything in order.” That after closing the account at the Cleveland Trust Company, her father wanted to go and was taken across the street to the Home Federal Savings and Loan Association and there a new joint and survivor account was opened in his name and the name of each of the defendants, George Antolik, Jr., and Elizabeth Gaydos. At the Home Federal, when informed by her father that he wanted the account opened in the names of these two defendants, she said: “and I asked him, I begged him, I says Pop have your name on it,” which was in fact done.

From the Home Federal Savings and Loan Association, they picked up Laura (wife of George Antolik, Jr.,) then drove to the Society for Savings, this witness testifying that they all stayed to the side while her father transacted the business of closing out the joint and survivor account in his and his deceased wife’s names in a total amount of $16,695.67. This witness also testified she then found out for the first time what her father and mother’s accounts were so there can be no doubt but from that day on she was fully informed of all the bank accounts of her father and mother.

At the Society for Savings, in redepositing $8659.67 in a joint and survivor savings account in the names of this witness and her brother, when asked about her suggestion that her father’s name be included as was done at the Home Federal Savings & Loan Association, she testified: “He did not want it but the feeling of his was that he doesn’t want. He wants just the two of us to have it. He says ‘that is sister and brother.’ He didn’t want to sign.” When asked why he withdrew $4,000 in cash, she testified: “Well, it wasn’t my business. He was doing it.” She also testified that they then went home from the Society for Savings where he took the $4,000 out of his pocket and gave $2,000 to her and $2,000 to her brother and handed them the savings account book evidencing the new deposit of $8659.67 in a joint and survivor account in her name and that of her brother. In attempting to explain the inconsistency between her testimony with that of her brother about the stop at the Home Federal Savings & Loan Association, she said: “After leaving the Cleveland Trust Company, we went right across the street to the Home Federal. * * * Yes, he is all balled up. He is balled up.”

By the transcript on a motion excepting to the inventory of George Antolik, Sr.’s estate, the defendant is shown to have testified as follows: (The question was put to George Fedor, counsel for the defendants.)

“Q. You will recall at the end of the hearing in the Probate Court Judge Kinder asked Elizabeth if there was anything like a $16,800 account and she said she did not know of any.

“A. Gee, I don’t recall either, Mr. Pangrace.

“Q. Reading from the transcript of testimony taken in probate court, exceptions to the inventory, you will recall on page 33 of that transcript that the court said:

“Alright. Was there any bank book that you know of that had $16,800 in it.

“And the witness who was Elizabeth Gaydos at the time replied, ‘No, I don’t know of any.’ ”

There, is no controversy but that the transcript was read correctly.

The record before us shows the following stipulation:

“The record will show by agreement of the parties that all of the proceedings in the probate court in the estate of George Antolik, Sr., and Lizzie Antolik, his wife, might be by stipulation included in the evidence and in the record in this case.”

It should be noticed that Elizabeth Gaydos did not take the stand in her own case after testifying in the plaintiffs’ case on cross-examination.

The wife of George Antolik, Jr., Laura Antolik, also testified for the defendants. She was a very positive witness. Her stock answer was “certainly yes” or “certainly no” or just “certainly.” After considerable testimony about her professional status as a registered nurse, how she moved into the house with the senior Antoliks and her opinion of his mental status when examination approached the visits to the banks, this witness volunteered in answer to a question as to the purpose of the visit to the Society for Savings, the following:

“A. I was in regard — Mr. Fedor. I have to be exact about this. I want you to understand I was a daughter-in-law and I had nothing to do with any of the transactions that went on between my father-in-law and my sister-in-law and my husband.”

She joined in this respect the effort of the defendants to make out that they were always at a distance and did not know what was going on during each occasion George Antolik, Sr., was at the teller’s cage withdrawing money for their benefit. This is also the witness that testified in a very positive way that the visit to the Society for Savings was at 11 to 11:30 in the morning on April 1, 1955. On this question she was very positive. All others said the visit was after lunch.

The record evidence shows that in 1942, Lizzie Antolik made a will in which she gave her entire estate to her husband. The inventory of her estate shows that she held a one-half interest in the family residence. It is also evident from the manner in which this family handled all of their financial affairs that the house George Antolik, Sr., and Lizzie Antolik sold to Frank Stepka and wife was held jointly by them as were all the bank accounts so that the deposit of $12,700 in 1951 to the joint and survivor savings account of George Antolik, Sr., and his wife, Lizzie, at the Society for Savings received from the sale of the house in that year, was her money as well as his.

The evidence of influence in securing an alleged gift of over $19,000 (all of his liquid assets) from George Antolik, Sr., the day after his wife died, he then being about eighty-one years of age, when considered in the light of the complicated manner in which the several transactions were carried out, is to be found in considering the credibility of the defendants and at least one other witness called by them. The direct contradictions between them on facts about which there could be no dispute and could not result from a faulty memory makes it impossible for this court to give any credence whatever to their most unusual story.

How could George Antolik, Jr., dismiss from his memory or be mistaken as to the place where he received such a large sum of money or be in error as to the deposits made at the Home Federal Savings and Loan Association if he were actually reciting a personal experience? The same question could be asked of Mrs. Elizabeth Gaydos as to her answers concerning her knowledge of an $18,000 account of her father when she was then in actual possession of a large part of it. The record shows that both defendants accompanied their father to the banks where all of the transactions took place, including the execution of the will on April H, 1955. If all George Antolik, Sr., wanted was transportation, it would not have been necessary for both of the beneficiaries of the claimed gifts to escort him to the banks only to stand completely aside while-he was transacting his business, particularly where all the claimed gifts were withheld until all of the parties returned to the home of Elizabeth Gaydos.

The record also discloses circumstances supporting the plaintiffs’ claim of undue influence. The granddaughter recounted the statements of her grandfather after the funeral in reference to his empty pocketbook. She testified that he said several times while holding out an empty pocketbook “there was something in it — now it is gone.”

One of the witnesses called by the defendant (a friend of long standing) testified that at the funeral parlor the evening of April 1, 1955, the day George Antolik’s bank accounts were closed out, she talked with George Antolik, Sr., and the following conversation took place:

“He came by me and he said to me like this ‘Oh, stoffa, Mrs. Stoffa, I never thought I lose my mother.’ He called her mother. T will be lost now.’ And I said, No you not. You have childrens yet, and he again said to me look like this. ‘She is still warm and that is trouble already on the money.’”

An examination of the probate proceedings in both estates discloses that as administratrix Elizabeth Gaydos made no mention of the bank accounts of the decedents for inheritance tax purposes. §5731.02 (E) R. C., prior to its amendment effective 6/17/57, provided:

“(E) Whenever property is held by two or more persons jointly, so that upon the death of one of them the survivor has a right to the immediate ownership or possession and enjoyment of the whole property, the accrual of such right by the death of one of them shall be deemed a succession taxable under this section, in the same manner as if the enhanced value of the whole property belonged absolutely to the deceased person, and he had bequeathed the same to the survivor by will;”

The administratrix, Elizabeth Gaydos, filed under oath with the probate court on September 27, 1955 her “application with itemized statement for determination of inheritance tax.” Under the heading “Joint and Survivorship Property,” she entered under the column “actual market value,” the figure “O.” In the estate of her father, no application has yet been made.

In the case of Tax Comm. v. Hutchison, 120 Oh St 361, 166 N. E. 352, the Supreme Court said in the syllabus:

“Under the provisions of §5332 GC, ‘whenever property is held by two or more persons jointly, so that upon the death of one of them the survivor or survivors have a right to the immediate ownership or possession and enjoyment of the whole property, the accrual of such right by the death of one of them shall be deemed a succession taxable’ pursuant to the laws of this state, a succession tax may be imposed upon the interest of a deceased husband accruing to a wife in a joint bank account maintained by them to which both contributed which was subject to withdrawal by either during life,- and in case of death of either, the balance to belong to the survivor; such tax is collectible even though such joint bank account was created prior to the enactment of the statute providing for succession taxes, if it appear that the death of one of such joint owners was subsequent to passage of such statute.”

It was clearly the duty of the adminitratrix to return the joint and survivor accounts in the name of the deceased and in that of her bus-band in the Cleveland Trust Company and the Society for Savings with a total balance of over $19,000. Her failure to do so is potent evidence of an attempt to withhold knowledge of such accounts and gives support to plaintiffs’ claim.

One other circumstance requires consideration. As above set out, when the Cleveland Trust Company account was closed, the total balance of $2504.71 was immediately redeposited in the Home Federal Savings and Loan Association in a joint and survivor account in the names of George Antolik, Sr., George Antolik, Jr., and Elizabeth Gaydos. On the fifth of April, 1955, the four thousand dollar bank check made out to George Antolik, Sr., which he received in closing out the Society for Savings accounts, was deposited in the joint and survivor account in the Home Federal Savings and Loan Association. There is no evidence of a gift of this money. George Antolik, Sr., retained possession of the check until it was deposited as just indicated. The entire account was closed by the defendants after the death of their father.

The rule of law with regard to the ownership of joint and survivor deposits after the death of one of the co-depositors has been the subject of much litigation with varying results. Where donative intent is expressed by a depositor in favor of one whom he makes a co-depositor in a ioint and survivor account, the law in Ohio is settled by the case of Cleveland Trust Co. v. Scobie, 114 Oh St 241, 151 N. E. 373, where the court said:

“Where a person opens a savings account in a bank to the joint credit of himself and another, payable to either, and balance at death of either payable to survivor, the authority to remain in full force until receipt by the bank from the depositor of written notice of its revocation, and the record shows that the depositor intended to transfer to the person to whom he made the account jointly payable a present joint interest therein equal to his own, and the passbook has been left in the possession of the bank for withdrawals by either party on the joint account, a joint interest is created in the right of the depositor in the deposit, and the person to whom the deposit is made payable jointly with the depositor, upon the death of the depositor, without his having revoked the authority to draw, is entitled to the balance of the account.”

Also, in the case of Rhorbacker v. Bldg. Assn. Co., 138 Oh St 273, 34 N. E. 2d 751, the court said:

“When the relationship of creditor and debtor exists between a depositor and a financial institution, and the depositor directs the institution to withdraw a specified sum of money from her account, convert it into a certificate of deposit payable to herself or another or the survivor. and place such certificate in her pass book at the institution, all of which is done in consummation of the expressed desire and intent of the depositor,,an executed contract thereby arises between the depositor and the institution creating an immediate joint and equal interest in the certificate in the depositor and the designated person, with the attendant incident of survivorship, binding the institution to its terras. Upon the death of the depositor, the arrangement having remained undisturbed, such designated person, as the survivor, becomes the owner of the certificate and entitled to its possession and benefits, by virtue of the completed contract. Consideration passing between the depositor and the one surviving is not necessary, and full assent to the contract by such survivor may be presumed, the contract being one of advantage without burden.”

The rule as thus set out would unquestionably result in the right of the defendants to the proceeds of the joint and survivor account in the Home Federal Savings and Loan Association were it not for the means used by them in inducing George Antolik, Sr., to give up his money. This account was a part of the intricate and involved circumstances surrounding all of the financial transactions of April 1, 1955, whereby the defendants were able to induce by undue influence their aged father to divest himself of every dollar of his liquid assets unless he was, in fact, permitted to keep the passbook to the Home Federal Savings and Loan Association account. The evidence is silent on this point.

Some attempt was made by the defendants to show that their father was put to considerable expense because of the mental illness of their sister, Mary. A trip to Detroit was suggested for medical examination which was said to have constituted some of the expense. No doubt the father did the best he could for his unfortunate child. The record is clear that Mary’s husband has paid all of her expenses and has kept her at the State Hospital these many years without any help from her family. A long period of time has passed since the incidents referred to and April 1, 1955, therefore, it seems impossible that a father would deliberately prefer the-, defendants to such a large extent of his estate over the most unfortunate members of the family or her children.

One other circumstance was brought into the record and that had to do with the failing mental and physical condition of George Antolik, Sr., while there was evidence that he was mentally capable and physically fit on April 1, 1955, yet that day was the beginning of the most tragic period of his life, the loss of his wife. Their life together had been one of love and affection for fifty nine years. At a time like that, a son and daughter must be relied upon to protect their father from unconscionable acts and lend help and comfort. These defendants denied any untidy conduct on their father’s part between the death of his wife and the last days of his life but it must be noticed that they put him in a sanitarium shortly before his death, not a hospital.

From all the foregoing, we can come to but one conclusion, namely, the prayer of plaintiffs’ petition for a declaratory judgment should be allowed, holding that all of the withdrawals from the accounts of George Antolik, Sr., and his wife were void and directing these defendants to account to the estate of Lizzie Antolik and the estate of George Antolik, Sr., for the money withdrawn from said joint and survivor accounts of the decedents and submitting such funds to proper administration.

HURD, PJ, KOVACHY, J, concur,


source: Caselaw Access Project

author: By BRYANT, J.

license: Public Domain

text:
    STATE, ex rel. JOHNSON, Relators, v. HARTER, Judge, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6056.
    Decided November 4, 1958.
    Warren E. Insley, City Atty., Worthington, Russell S. Welch, Special Counsel, James M. Brennan, Columbus, for relators.
    Robert G. Farmer, John E. Polcich, Columbus, as Intervenors on behalf of Edward J. Lewis.
   OPINION

By BRYANT, J.

James E. Johnson, as City Manager of Worthington, Ohio, and the city of Worthington, have filed a petition in this court for writ of prohibition naming as respondent, Judge Joseph M. Harter of the Common Pleas Court of Franklin County, Ohio.

Judge Harter is presiding in an action brought by Edward J. Lewis against James E. Johnson, City Manager of Worthington and the City of Worthington.

It appears that Lewis who was Chief of Police of Worthington, on October 17, 1958, submitted his resignation effective November 1, 1958, to Johnson, as City Manager, whereupon Johnson appointed Lieut. George Shapter as acting Chief of Police and accepted Lewis’ resignation. On October 30, 1958, Lewis withdrew his resignation and on the same date he was informed by Johnson that the withdrawal was rejected.

It appears that at 10:09 A. M., Monday, November 3, 1958, Lewis filed a petition in mandamus in the Common Pleas Court against Johnson and the City of Worthington praying for a preemptory writ of mandamus commanding Johnson to reinstate and restore him to the office of Chief of Police of Worthington and to certify said restoration to the said Civil Service Commission of Worthington. Lewis also prayed for $5,000 attorneys’ fees and $10,000 in damages.

Judge Harter signed an order allowing an alternative writ returnable at 2:30 P. M., Monday, November 3, 1958 or less than five hours after the time the petition was filed. The official file does not show the time of service of the summons but it was stated that it was nearly noon when it was received by the City Manager.

Apparently the City Manager and the City Attorney appeared before Judge Harter at 2:30 P. M., November 3, 1958, and requested a continuance to permit them to file a demurrer or answer to investigate the law of the case and to contact and interview witnesses, all of which were refused by Judge Harter. The hearing commenced at 2:30 P. M., November 3, 1958, and continued until approximately 4:00 P. M., after which the case was recessed until 9:00 A. M., Tuesday, November 4, 1958.

In the meantime, application was made to this court for the allowance of an alternative writ of prohibition and the matter was set down for hearing at 8:30 A. M., Tuesday, November 4, 1958, with notice to counsel on both sides.

At the time of hearing, Ernest Bryant, bailiff for Judge Harter, was present in the court room. This court extended to Judge Harter through his bailiff the opportunity to have counsel. Judge Harter declined.

Several witnesses were examined and their testimony indicated that no grave emergency appears to exist in the police department or in the field of safety of the City of Worthington.

The sole question is whether or not an order should issue prohibiting Judge Harter from proceeding with this case until he has allowed counsel for the City Manager and the City of Worthington an opportunity to prepare their case. They have indicated they desire from two weeks to one month continuance. We are not unmindful of the predicament facing counsel for the City of Worthington but the fact remains that the granting or denying of a continuance is a matter within the sound discretion of the trial court. The statutes grant to the Common Pleas Court the unquestioned right to issue a preemptory writ of mandamus without any hearing whatsoever, in which case the remedy of the City of Worthington would be by appeal. The fact that the court did allow a hearing before granting the final order is to extend the exercise of restraint by the court.

Furthermore, the use of the writ of prohibition is not favored in the law and it will issue only in the clearest types of cases where there is no other remedy available. It would appear that if the refusal of a continuance in this case amounts to an abuse of discretion that the full rights of the City of Worthington may be adequately protected by suitable and timely applications and motions for continuance with exceptions being reserved.

The decision in this case is not an easy one to make but considering the sharp limitations imposed upon prohibition, this court feels that it lacks the authority to issue an alternative writ of prohibition in this case.

The foregoing decision was given by Bryant, J., sitting alone upon application of relators for the issuance of an alternative writ of prohibition and said application is hereby overruled and denied by Bryant, J.


author: By SATER, J.

text:
    WELSH et, Plaintiffs, v. TONTI et, Defendants.
    Common Pleas Court, Franklin County.
    No. 195393.
    Decided May 23, 1958.
    Richard B. Metcalf, for plaintiffs.
    Samuel L. Zuravsky, for defendants.
   OPINION

By SATER, J.

The premises familiarly known as 2775 Regina Avenue, Columbus, Ohio, consist of a house and lot located at the southeast corner of Regina Avenue and Warren Avenue in Brookshire Park Addition, the plat for which was duly recorded late in 1950 or early 1951; Regina Avenue is to the north, Warren Avenue to the east of the premises.

The petition alleges that on August 3, 1954, defendants being the owners thereof, contracted to sell such premises to Ella Welsh and Walter S. Welsh (since deceased), for a valuable consideration,

“STREET ASSESSMENTS: To be adjusted as follows: Grantor to pay street costs.

“Grantee to assume no street improvement costs, sewer or water.”

This contract, which is of standard form, contains this quoted language and was received in evidence as Exhibit 1. However, when this contract ripened into a warranty deed between the parties, also a standard form of deed, on September 27, 1954, the covenant clause of the deed omitted the language quoted above and provided that the premises were free and clear excepting any and all unpaid taxes and assessments which the grantees (plaintiffs) assume and agree to pay. On this score, the petition alleges mutual mistake; continuing, it is alleged that 13 months later plaintiffs, who had long since become the recorded holders of title, were notified of the levy of special assessments against such premises in the sum of $1,065.34. The prayer is for reformation of the deed to comply with the terms of the contract quoted above, or in the alternative, for damages in the stated sum of $1,065.34, and costs.

Admitting the contract to purchase, the answer turns on the assertion that grantees’ freedom from street, sewer and water assessments quoted above, applied only to Regina Avenue, and alleges further that defendants did pay all such assessments, that such payments consequently constituted full compliance with the contract, and that the resultant deed was executed and delivered by them on the date mentioned. The prayer is for dismissal of the petition. Plaintiffs’ reply denied defendants’ compliance with the contract to purchase, and renews their original prayer for relief. At the hearing on the merits, counsel for defendants entered into the record the following stipulation which is enlightening:

“Mr. Zuravsky: It is agreed by and between Plaintiff and Defendant that the following facts be stipulated; that on August 3rd, 1954, a purchase contract was entered into between the Plaintiff, Ella Mae Welsh and Walter S. Welsh, now deceased, and Alfred E. Tonti, Defendant; that said purchase contract provided for the sale of a one story brick ranch home known as 2775 Regina Avenue, situated on lots 93 and 94 of Brookshire Park Subdivision; that under the terms of said contract, said contract containing a provision that the grantee was to assume no street improvement costs, sewer or water.

“It is further stipulated that for 70 feet on Warren Avenue property was not serviced by any paved street, although the intersection was laid out and the addition was laid out in contemplation of said 70 feet having paved frontage, whether said Warren Avenue would be paved one year or five years or ten years in the future, we don’t know.

“It is further stipulated by and between the parties that the City Clerk’s Office did on May 28th, 1954, notify the Defendant, Alfred Tonti, that assessment on lots 93 and 94 were going to be made, said lots being the subject of this suit and that proper steps were followed by the City to final consummation of the notice and that at some later date the said assessment was placed upon the tax duplicate against Lots 93 and 94.

“It is further stipulated that Plaintiff’s Exhibits A and B are paid tax bills showing assessments on the lots 93 and 94 and the original amount of the assessment was $1,064.34, this amount being the total assessment including interest being the sum of $12,032.40 and that a deed was delivered by Alfred Tonti and Mary B. Tonti to Walter S. Welsh and Ella M. Welsh for lots 93, 94 Brookside Park Subdivision and same is recorded in Volume 1837, page 463, Recorder’s Office Franklin County, Ohio, on September 27th, 1954, and that the Ella M. Welsh is the present feeholder of the premises.

“It is further stipulated by and between counsel that the legality of the assessment on the aforementioned lots is not a question to be resolved by the Court in this suit, that is the City is not a party defendant in this case nor party defendant and that the legality of said assessments cannot be challenged by either party to this suit.

“It is further stipulated by and between counsel that the notice served upon Mr. Tonti, Defendant herein, was in such form as to inform said Mr. Tonti that an assessment was to be made, that objection must be made within 30 days or assessment would be made. It identified the lots which are the subject of this suit and showed the approximate amount of the assessment to be made, which is approximately the amount of money the subject of this suit.”

We are concerned here with only the particular facts of this case. We are not concerned with, nor do we consider, any other assessment or notice of assessment, actual or proposed. Just a scant 36 days before defendants contracted to sell to plaintiffs on the terms set out above, they had due statutory notice and warning of the proposed assessment for the improvement of Warren Avenue; they received this notice as being the then record holders of title. It is not asserted, nor can it be asserted, that at that time plaintiffs appeared anywhere in the picture, had any interest in the premises, or had or could have any means at their disposal of knowing or learning of either the notice or of the proposed assessment. Yet, when plaintiffs did appear on the scene, the defendants stood idly and silently by; they did not protest or appeal the notice of the proposed assessment; they signed the contract with the language in it as set out above, and nowhere claim that they ever mentioned or spoke of the notice of assessment either directly or indirectly to plaintiffs-purchasers or either of them. Yet under the circumstances, plaintiffs were bound to rely on defendants’ representations, and defendants knew or should have known so.

Since earliest days sound lodgement has been found in the law of Ohio for the equitable principle that when one of two innocent parties must suffer, the loss shall fall on him whose conduct brought about the situation. Selser, Exr. v. Brock, 3 Oh St 302, last syllabus and Wilson v. Hicks, 40 Oh St 419, 439. The second syllabus of the Wilson case reads as follows:

“When a loss has happened which must fall on one of two innocent persons, it must be borne by him who is the occasion of the loss, even without any positive fault committed by him, but more especially if there has been any carelessness on his part which caused or contributed to the loss.”

Such is the case at bar. All other considerations aside, for the purpose of argument, defendants’ carelessness and nonfeasance were the direct cause of the controversy and loss. Since defendants would certainly have been lawfully and properly obligated to pay the assessment had they remained owners of the title, the circumstances surrounding their fortuitous sale of the premises require that burden to remain with them. Nor can the possible fact that defendants might have forgotten the notice or the fact that they might have forgotten that the premises abut on two streets rather than on one, furnish them relief from their ill-starred contract. The wording of their contract is clear and without, for the purpose of this case, limitation or exception; that wording should have been set out in the deed which followed.

In the second place, there is the matter of equitable estoppel of defendants to deny the existence and effect of their knowledge and their contract. Even if it be conceded that the pleadings leave something to be desired, nevertheless the full record is ample to enable the Court to consider and follow this doctrine. Kellogg-Mackay Co. v. O’Neill, 39 Oh Ap 372, 380-381. wherein the Court stated: “And, if the admitted facts before us are sufficient to work an estoppel, the equitable doctrine should be applied even if the facts are insufficiently pleaded.” See, also, Castalia Trout Club v. Castalia Sporting Club, 8 O. C. C., 194, 208-209, affirmed without opinion, in 56 Oh St 749.

When we come then to consider the matter of applying to defendants the principle of equitable estoppel, we find present here all three requqirements: (1) neglect of duty to plaintiffs, (2) inherency of such neglect to the transaction involved, and, (3) the fact that such neglect was the proximate cause of misleading plaintiffs. Defendants’ duty to inform plaintiffs of the full true situation rests here on both silence and inaction; yet, the duty existed, and there was ample and there was full opportunity to speak or act. They may not profit from their own wrong even though it was not calculated.

The principle of equitable estoppel applies to transactions involving real estate. In pointing out that fraud is not a necessary element of estoppel, the Court in Rosenthal v. Mayhugh, 33 Oh St 155, 156, said,

“It is not necessary, to an equitable estoppel, that the party should design to mislead, it is enough if the act or declaration was calculated to and did mislead another acting in good faith and with reasonable diligence.”

And, again, in Beardsley v. Foot, 14 Oh St 414, 416;

“The circumstances may be such that ‘good conscience and honest dealing’ may require a party to bear the consequences of his own negligent mistake, instead of throwing the resulting loss upon another whom he has misled.”

See also. Penna. Co. v. Platt, 47 Oh St 366, 385, Sanitary Mfg. Co. v, George, 118 Oh St 564, 573-574, and Bailey v. Stredonsky, 57 Oh Ap 265. Syl. 1.

The principle also applies to transactions involving personalty. Graef v. Dime Savings Bank, 24 Abs 409, 411, West v. Railway Co., 41 Abs 554, 559. and Baranowicz v. Insurance Co., 66 Oh Ap 444, 448. The third syllabus of the Graef case is:

“Silence itself is sufficient to work an estoppel where the facts reveal a duty and opportunity to speak and a failure so to do. coupled with knowledge that one will rely on such silence, and where that one actually does rely thereon to his damage.”

The record shows that plaintiffs have paid two installments on the assessments for the improvement of Warren Avenue; other installments will unquestionably follow, all directed to plaintiffs or their successors in title. For the former defendants shall make corresponding reparation to plaintiffs; for the latter they shall provide full and adequate indemnity. An appropriate order may be presented to the Court to execute the foregoing.


author: By SKEEL, J:

text:
    STATE, Plaintiff-Appellee, v. COSBY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24845.
    Decided October 30, 1959.
    John T. Corrigan, Pros. Atty., Merle M. McCurdy, Reuben M. Payne, Asst. Pros. Attys., for plaintiff-appellee.
    Robert B. Krupansky, Theodore Williams, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from the Court of Common Pleas of Cuyahoga County. The judgment of the trial court was entered on the decision of three judges of guilty of murder in the first degree. The judges did not recommend mercy.

Raymond George Mack, a shoe salesman for the Thom McAn’s Shoe Store, located at 10417 St. Clair Avenue, was shot and killed at about two-thirty in the afternoon of October 10, 1958. There is no controversy but that the death was occasioned by the discharge of a revolver then held in the hand of the defendant. There is likewise no controversy but that the wrist watch of the deceased and certain money belonging to the shoe company was carried out of the store in a green paper bag by the defendant. It is the claim of the State that the defendant purposely caused the death of the deceased in the perpetration of a robbery. It is the claim of the defendant that he came into the store (with the revolver in his possession) when, after he entered, he discovered what he thought was a robbery in progress. That he believed that the robbery was taking place in a rear room of the store. That he, the defendant, upon entering and seeing there was no one in the store, twice announced “boisterously” “was there anybody here” when a voice in the rear room said “get out of here man, go ahead get out,” That he then cautiously, with his revolver drawn and “cocked,” proceeded to the back room and as he was in the entrance to the rear room, a man rushed by him, wedging him “in against the back of the partition and the gun discharged.” The defendant claims that after the eun went off, a second man went by him and ran out of the store.

From the judgment of guilty of first degree murder without a recommendation of mercy, the defendant claims the following errors:

“1. The State failed to properly preserve and present material evidence within its control that would have conclusively vindicated the Appellant.

“A. Said act constituted misconduct of the prosecutor.

“B. Said acts were prejudicial to Appellant and deprived him of due process of law contrary to the 14th Amendment of the Constitution of the United States and the Constitution of Ohio.

“2. The Court erred in admitting the confession of the Appellant, Joseph Louis Cosby, in the absence of some extrinsic evidence of corpus delecti.

“3. The verdict of the Court is contrary to the manifest weight of the evidence.

“A. The Court erred in finding a robbery was attempted or committed by the Appellant.

“B. The Court erred in finding the Appellant guilty of murder in the first degree for unlawfully and purposely killing while perpetrating a robbery.

“4. The Court erred in overruling Appellant’s motion for a new trial.”

The defendant in his statements and testimony, which are in serious conflict on some material circumstances, stated, in part, to the effect that he went into the Thom McAn Shoe Store in the early afternoon of October 10, 1958, to buy a pair of shoes. He was waited on by Raymond George Mack. The defendant bought a pair of shoes, paid a dollar down, which was marked on the shoe box, a receipt being given by Mack, and the box placed in the back room on “Will Call.” He then testified that he went to another store, and tried to purchase a jacket. Not finding one to his satisfaction, he said he returned to the shoe store to pay another dollar on the shoes. He had two dollars and thirty-five cents on his person when he deposited the first dollar. The store seemed empty when he entered the second time. He called out in a loud voice, as above quoted, when a reply came from the back room “get out of here man, go ahead, get out.” He claims to have recognized the voice as that of Elijah Howard. He testified that he drew his gun which was loaded, cocked it and started to the back room cautiously, with his back pressed against the partition as he entered the doorway where he held his revolver in front of him. Edging around the first corner and as he was about to pass the second corner to reach the back room, a tall man in army fatigue jacket (identified as Elijah Howard) ran past him, hitting his right arm in such a way as to discharge the gun. A short, stocky man, later claimed to be the “Cocaine Kid” (Harold Morton) immediately followed and both ran out the front door.

The defendant’s testimony as to what took place when the shooting occurred was as follows:

“Q. Where was the gun at this particular time, in which hand did you have the gun?

“A. In my right hand.

“Q. How were you holding it?

“A. In front of me.

“Q. Would you tell us what happened when the man brushed past you?

“A. When this man rushed past me, it wedged me up against the back of the partition, and the gun discharged.

“Q. Where did he bump you or jostle you?

“A. Right on the side of my right arm.

“Q. You stated that the gun discharged?

“A. Yes, sir.

“Q. And then what happened, sir?

“A. Then, sir, there was a chain reaction. After the first man—

“A. — the gun discharged and I heard someone falling, and the second man ran past me at the same time.

“Q. How long did that take, how much of a time interval elapsed from the time that you stepped around the corner and the man brushed you, the gun went off and you heard this man fall?

“A. Sir, I couldn’t exactly bring it down to minutes.

“Q. Was it seconds?

“A. It was seconds.

“Q. Then what did you do, sir?

“A. After I gathered my balance again, I stepped fully into the back of the store.

“THE COURT: You stepped what?

“THE WITNESS: Fully into the back of the store.

“Q. Were you frightened at that time?

“A. Not then, no, sir.

“Q. Tell us what happened?

“A. Upon stepping fully into the back of the store, I saw the body of this man, white, lying up next to the door, I believe, and that’s when 1 got a little shaky, and I sat down.

“Q. Were you confused at that time?

“A. More or less, yes, sir.

“Q. By the way, were you still on parole at this time?

“A. I was.

“Q. What further observations did you make?

“A. While sitting there I saw a green bag.

“Q. Where was this green bag?

“A. Lying approximately a foot and a half from the man, it was immediately to my left. I was facing him.

“Q. What did you do?

“A. After sitting there for a few minutes I picked the bag up.

“Q. Then what did you do?

“A. I left the store.”

On the way home, he changed some of the change (there being some rolls of quarters in the bag) into bills, made some purchases of clothing and later purchased a pair of shoes and three skirts for his girlfriend, using the money taken from the bag.

When first arrested, in attempting to explain his possession of the watch and money, the defendant stated that he saw a tall colored man cross St. Clair Avenue, later identified at Elijah Howard, and that he, Howard, put a paper bag by the steps of a church and that he, the defendant, after Howard left, then retrieved the bag in which was the watch and money. The defendant told a wholly, different story on the stand as above quoted, also, he is alleged to have told a police officer that he got the gun that was discharged in the killing of Mack from a pawn shop but when confronted by the pawn broker, he then and in his signed statement, said he “lifted it from a drunken passenger on a C. T. S. bus.” There is no contradiction of the evidence that the proprietor of a lunch room on Lexington Avenue was robbed October 4, 1958, at about 10:30 P. M. The owner, Henderson, testified he was “beaten up” by the robber who took, among other things, a German made revolver he then had in his pocket. This witness had the box in which the revolver was sent to him from a Chicago Department Store upon which was printed the same serial number that was on the gun that was discharged while in defendant’s possession killing Mack. The box is in evidence, as is also the remains of the gun. (The defendant testified that on the evening of October 10th, he dismantled the revolver, scattering parts of it along Bryant Avenue, and threw the barrel on top of the roof of a gas station. It was recovered from the roof by the police.i This witness identified Cosby in a police lineup, after he (Cosby) nas been arrested for the murder of Mack, as the man who robbed him. The defendant was on parole from a conviction of robbery in which he admitted having inflicted violence on the victim. The court must have considered these robberies under the provisions of §3945.59 R. C.

In considering defendant’s claims of error, we find that the record does not support the defendant’s claim that the State withheld evidence that would have been helpful to the defendant. The claim is based on the supposition that one, Alice Hall, was taken into custody and after questioning, was released, to prevent the defendant from having the benefit of her testimony. She could not thereafter be found. One of the police officers testified that Alice Hall told him that Elijah Howard told her that he was in the Thom McAn’s Shoe Store at the time Cosby was there. The court struck this evidence from the record as hearsay. This ruling was correct. We find no evidence in the record to sustain the defendant’s claim of withholding evidence within the possession of the State that might have been beneficial to the defendant. The defendant’s first claim of error is overruled.

The second claim of error is that the defendant’s statements to the police officers while in custody were erroneously received into the evidence before the fact that the deceased’s death was the result of a criminal act was, at least, in part, established by independent evidence. In other words, the claim is that the corpus delicti was not established before the defendant’s statements to the police before indictment were received into evidence upon trial on the merits.

It is not essential in establishing what is designated as the corpus delicti in the criminal law, as a prerequisite to the introduction of a statement made to the police by one charged with crime, that all the elements of the crime be supported by evidence other than that contained in the statement. It is enough that some independent evidence is presented tending to show that a crime has been committed, as for example, in a homicide case, to show the existence of a dead body where death was caused by criminal means. In State v. Maranda, 94 Oh St 364, 114 N. E. 1033, the court said:

“1. By the corpus delicti of a crime is meant the body or substance of the crime, included in which are usually two elements: 1) The act. 2) The criminal agency of the act.

“2. It has long been established as a general rule in Ohio that there must be some evidence outside of a confession, tending to establish the corpus delicti, before such confession is admissible. The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make it a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged.”

A correct definition of the meaning of “Corpus Delicti” is set out in Ballentine’s Dictionary, page 294, as follows:

“The body of the crime, meaning that the specific crime charged has actually been committed by someone. It is made up of two elements: first, that a certain result has been produced, as that a man has died or a building has been burned; second, that someone is criminally responsible for the result.”

The elements necessary to make out the corpus delicti (the body of the crime) defined in the Maranda case, supra, are directly based on the rule as stated in Wharton’s Criminal Evidence, page 635, para. 325, Tenth Edition, 1812, where it is said:

“The finding of a dead body establishes only the corpus. The finding of such body under circumstances that indicate a crime would indicate the delicti or felonious killing.

“When these facts concur, the first element of the corpus delicti, the criminal act, is made to appear. Hence, it is not necessary to the establishment of a complete corpus delicti that identity should be shown, because the dead body and the crime against it complete all that is indicated by the corpus delicti.”

And on page 1312, para. 633, the author says:

“The term corpus delicti is so invariably associated with homicide only, that its existence as a part of the proof of every crime is frequently ignored. Hence, in dealing with corroboration of confessions, courts use a rather loose phrasing, such as, ‘there should be some proof that a crime has been committed,’ or ‘there should be some circumstance corroborating or fortifying the confession, which phrases indicate that the corpus delicti, ‘the body of the crime,’ ‘the proof of the crime’ or however else it may be expressed, must be shown by evidence independent of the confession. That this is an essential is found in the statement of the general rule, that, to warrant a conviction upon an extrajudicial confession of the accused, there must be independent evidence to establish the corpus delicti of the crime, and the rule is also expressed in many statutory enactments.”

Historically the rule came into being because of erroneous results coming about because of extrajudicial confessions used as the primary basis for a judgment of guilty in homicide cases. Many times such confessions were induced by fear of the multitude, sometimes by a sense of grandeur, the desire to attract attention and the like. In Wigmore on Evidence, Vol. VII, Third Ed., 1940, para. 2081, the author says:

“The attempt has often been made to establish a rule that, for proving the ‘corpus delicti’ — the fact of death, on a charge of homicide, or of abstraction of goods, on a charge of larceny — there must be direct or testimonial evidence, i. e. a witness who has seen the lifeless body of the person, or the vacant place where the goods were.”

And footnote 4 sets out Perry’s Case, 14 How. St. Tr. 1312 (murder), where the supposed murdered man whose body was not found, returned home two years after the accused’s execution. Presumably the conviction was the result of a confession with other evidence. Also, in the trial of Stephen and Jesse Boorn for the death of Russell Colvin, reported in 6 American State Trials, page 73 (1819) Vermont, where, after pressure from the multitude, the defendants were indicted and tried some five years after the supposed death of Colvin. The case was tried and a judgment of guilty was entered on circumstantial evidence and confessions of the defendants. Before the sentences of death were executed, the supposed deceased was returned to the jurisdiction of the court trying the case whereupon the defendants were discharged. This case, with others, is set out in f. n. 4 page 418 of Vol. VII of Wigmore, supra, to demonstrate the basis for requiring proof of death by criminal means in a homicide case before an extra-judicial confession may be depended on.

The requirements of the rule of corpus delicti in a homicide case do not require more than some evidence to support the fact that a human being has come to his death by criminal means.

The record in this case goes far beyond the requirements, as thus defined as a prerequisite for the admission of the defendant’s conflicting extrajudicial confessions. There is no dispute but that Raymond George Mack came to his death as the direct result of a gunshot wound. This certainly would tend to show death as the result of a criminal act. His body was also bruised as if he had been the subject of violence beyond that of the wound resulting from a bullet discharged from a revolver. The (dead) body of the deceased was found in the back room of a shoe store where he was employed and where it was shown money used in the operation of the business in excess of one hundred fifty dollars was missing. This and other evidence in the record shows that the corpus delicti was clearly established as a prerequisite to presenting the defendant’s statements to the police. We, therefore, dismiss the defendant’s second claim of error.

The third and fourth claims of error that the judgment is against the “manifest” weight of the evidence and that it constituted prejudicial error to overrule defendant’s motion for new trial are likewise overruled. A careful reading of the record discloses an abundance of evidence to support the judgment. The defendant admits being in possession and holding the gun at the time the bullet was discharged (claimed to have been accidentally done because of Howard and Morton) and which caused the death of Mack. The defendant was at this time a parolee from the reformatory, having been sentenced for robbery in which the police records show he admitted administering cruel violence on his victim. The defendant was identified as the perpetrator of another robbery in which violence was used and in which the revolver which caused Mack’s death was stolen. The defendant used the money which he carried from the shoe store in a paper bag. His conflicting statements about how he got possession of the money and the revolver were highly detrimental to the credit the court could give to his testimony. His reason for going back to the shoe store after depositing one dollar for the purchase of a pair of shoes was at least unusual. It would likewise be unusual, if Howard and Morton were there robbing Mack (at the time Cosby entered the shoe store), that when someone entered the store out of their view, they would continue with their unlawful purposes and simply yell out to someone unknown “get out of here man, go ahead, get out.” These are but a few of the reasons why the court was clearly justified in giving little credit to the defendant’s claim that the gun was discharged accidentally by Howard brushing by him in attempting to get out of the back room at the time of the shooting. The court could, upon solid ground, have concluded, as it must have done, that the defendant’s story that Howard and Morton were in the store when Mack was killed was not worthy of belief.

We find from a careful reading of the record that the defendant’s claims of error are not well taken and that substantial justice has been done.

Judgment affirmed.

HURD, PJ, KOVACHY, J, concur.


author: By FRANCE, J.

text:
    STATE v. CUNNINGHAM, Defendant.
    Ravenna Municipal Court.
    No. 23606.
    Decided November 9, 1959.
    O. J. Schneider, for the State.
    Vincent E. Gilmartin, for the defendant.
    Lockwood Thompson, for the Turnpike Commission: Amicus Curiae.
   OPINION

By FRANCE, J.

This matter was heard on affidavit filed by T. A. Davis, Ohio State Patrol (Turnpike) charging defendant with excessive speed, 90 miles per hour in a 65 mile per hour zone (turnpike) on October 4, 1959, in violation of §5537.16 R. C„ and paragraph 2.3 Turnpike Rules. The form words imprinted on the standard ticket “over limit, prima facie unreasonable” were lined out and the words “over legal limit” substituted.

Defendant pleaded not guilty on October 5, 1959, and the matter came on for trial to court on October 14. At trial, before evidence was taken, motion was made to dismiss for the reasons that the affidavit failed to state an offense, and for the first time the question of' the constitutionality of §5537.16 K. C., was attacked. Decision on the motion was reserved by the court under stipulation of counsel so that the evidence might be heard, and the motion was renewed at the close of the state’s evidence and of all the evidence. The court found facts showing the defendant guilty, if the act were constitutional and, treating the previous motions as a motion in arrest of judgment, invited briefs on the constitutional point involved.

The offense of speeding on the turnpike is created by §5537.16 R. C., which provides:

“The commission shall have power to adopt such bylaws, rules and regulations as it may deem advisable for the control and regulation of traffic on any turnpike project, for the protection and preservation of property under its jurisdiction and control, and for the maintenance and preservation of good order within the property under its control. The rules and regulations of the turnpike commission with respect to the speed, axle loads, vehicle loads and vehicle dimensions of vehicles on turnpike projects shall apply notwithstanding the provisions of §§4511.21 to 4511.24, inclusive, §4513.34 and Chapter 5577 R. C. Such bylaws, rules, and regulations shall be published in a newspaper of general circulation in Franklin County, and in such other manner as the commission prescribes.”

“Such rules and regulations shall provide that public officers shall be afforded ready access, while in the performance of their official duty, to all property under the jurisdiction of the commission, without the payment of tolls.”

“No person shall violate any such bylaws, rules or regulations. All fines collected for the violation of such laws of the state and the bylaws, rules and regulations of the Turnpike Commission or moneys arising from bonds forfeited for such violations shall be disposed of in accordance with §5503.04 R. C.”

Pursuant to this section the Turnpike Commission adopted, on April 4, 1956 (inter alia), Rule 2.3 reading, in part, as follows:

“No person shall operate a truck, trailer, semi-trailer or commercial tractor upon the turnpike at a speed in excess of 55 miles per hour. No person shall operate any other motor vehicle upon the turnpike at a speed in excess of 65 miles per hour.”

Defendant’s contention is that §5537.16 R. C., violates Article II, - Section l, Ohio Constitution, by improperly delegating to the Turnpike Commission the legislative power to create penal offenses.

The question of what powers may validly be delegated by the legislature to other agencies of government has been much discussed by our Supreme Court. The most lucid recent discussion is by the late Judge James Garfield Stewart in Weber v. Board of Health, 148 Oh St 390, in which he state, at page 395:

“Under our Constitution the lawmaking function is assigned exclusively to the General Assembly, and it is a cardinal principle of representative government that the law-making body cannot delegate the power to make laws to any other authority or body. This general principle is universally held, but its particular application in the delegation of powers to boards and commissions, the establishment of which has become essential in the complexities of modern life, frequently creates a difficult problem. While no legislative power can be delegated to such bodies, the law-making body can confer administrative powers upon them to make rules and regulations to carry out the legislative intent.”

The test normally used to determine whether the delegation is a prohibited and unconstitutional one, or a permissible one to carry out legislative intent is the presence of standards fixed by the legislature to guide the rule making body. Thus, constitutional delegation in fact finding has been upheld in the following cases, among others:

Smith v. Ray, 83 Oh Ap 61 aff’d 149 Oh St 394. (School consolidation.)

Belden v. Union Central Life Insurance Co., 143 Oh St 329. (Insurance Company conversion.)

Carney v. Board of Tax Appeals, 169 Oh St 445. (Uniformity of county tax valuation.)

Where there is in fact no standard set the legislation has been invalidated:

State, ex rel. Reams v. Dusha, 50 Oh Ap 486. (Little N. R. A.— following Panama Refining Co. v. Ryan, 293 U. S. 388.)

Harmon v. State, 66 Oh St 249. (Examinations and licensing of engineers.)

State, ex rel. Srigley, v. Woodworth, 33 Oh Ap 406. (Zoning regulations.)

State v. Pairan, 80 Abs 484. (Watercraft safety rules.)

In the matter of establishing standards for the guidance of the rule making body there appears to be a clear exception. Where the discretion to be exercised relates to a police regulation for the protection of the public morals, health, safety, or general welfare, and it is impossible or unpracticable to provide such standards then the delegation may be constitutional notwithstanding the absence of standards.

Matz v. Curtis Cartage Co., 132 Oh St 271.

Weber v. Board of Health, supra.

Ex parte Company, 106 Oh St 51.

It should be noted, however, that those cases which sustain delegation of power without standards involve either health and quarantine cases, or as in the Matz case, a regulation of a limited group within a large body (such as safety regulations for commercial truckers only). Judge Williams, speaking for the court in the Matz case, after pointing out the need for PUCO regulation of service, control of equipment and promotion of safety on part of commercial truckers, significantly went on to say: (132 Oh St 286.)

“However, it must be borne in mind that the fact that utilities are involved is a vital consideration. If this court had under consideration the question of regulating the use of the highways by the general public through the instrumentality of a commission a different conclusion might be reached.” (Emphasis added.)

The Turnpike Commission, in its brief amicus curiae, lays great stress on the Ohio cases establishing the validity of the turnpike act in general. However, in State, ex rel. Commission, v, Ferguson, 155 Oh St 26 —the court expressly refused to express an opinion on the validity of the rule making related to the power to create offenses, and added the following significant language: (p. 44)

“Even if such provisions are invalid, the General Assembly could readily enact statutory provisions covering the use and protection of turnpike projects.”

Again in State, ex rel. Commission, v. Allen, 158 Oh St 168, the Supreme Court refused to discuss the claim of invalid delegation of power as not one before the court. Nor are the commission’s citations of cases involving turnpike cases in other states at all helpful. Opinion of the Justices, 133 N. E. (2), 452 (Massachusetts); State v. Turnpike Authority, 80 So. (2d), 337 (Florida), and People v. Illinois State Toll Highway Commission, 120 N. E. (2d), decide the same questions previously raised in Ohio by the Ferguson and Allen cases, that is the authority to sell bonds for, construct and operate turnpikes as toll roads. No question of fixing penal offenses by rule is remotely involved in any of these decisions. Nor is the question of creating rules for the internal administration of the Turnpike Commission, for making possible construction and administration involved here. Such type of rule making power is freely sustained by the courts; it is the creation of crimes by rule that is the question before the Court.

The Turnpike Commission in its argument, makes much of the fact that the turnpike was a new venture in which all problems could not be anticipated by the legislature or even by the commission itself and that broad discretion in the field of traffic regulation was necessary. The court agrees that the engineering problems of complete grade separation were tremendous and those of fixing tolls, designing interchanges, and planning and leasing service plazas were unusual. So far as traffic regulations were concerned however, the differences from normal were those of degree, not of kind. Limited access roads in Ohio existed before the turnpike; so did multi-lane divided highways; the experiences of the Pennsylvania Turnpike, in operation more than 15 years before the Ohio act, were available as a guide to the Legislature. Undoubtedly, some variations from the normal as to permissible speed and axle loads were in order, given the improved design and road bed of the turnpike.

Clearly valid precedents for variation of traffic and weight rules from the normal have been established in Ohio for some time. Thus, under §4511.21 R. C., both the Director of Highways and municipal authorities are granted the right to vary prima facie speed limits from the norm; §4511.31 R. C.. gives the Director authority to establish no passing zones. Sec. 5577.07 R. C. (the frost law), gives authority to local engineers to vary the weight limits.

These latter grants of authority are limited: the conditions are set forth; and findings of condition must be made. Similarly, §1531.08 R. C., which gives the Wildlife Council the power to set hunting and fishing regulations with the force of statute, recites in great detail the facts and conditions to which the council shall give consideration. Even the Township Zoning Act (Chapter 519 R. C.), makes elaborate provision for findings, hearings and appeals.

In contrast, §5537.16 R. C.. the statute in question, sets up no standards, no provisions for hearings, no test except the uncontrolled and unappealable judgment of the commission itself. It has power to adopt such rules and regulations “as it may deem advisable”!

There appears to be no distinction between the grant of power here to the Turnpike Commission and that to the Division of Parks, which was found invalid in State v. Pairan, supra. The legislature was quick to admit its error after the Pairan decision by repealing .the section in question and exacting a whole chapterful of watercraft regulations. If it could do the one. it is equally able to do the other.

It follows that §5537.16 R. C., so far as it attempts to confer on the Turnpike Commission the power to create penal traffic regulations by rule, is an unconstitutional delegation of legislative power for the reason that no standards for rule making are provided and that no traffic charge brought under such section states a punishable offense against a defendant.

There might be some fear that invalidation of the section in question would leave the Turnpike Commission, and the Highway patrolmen assigned to the turnpike, completely without remedv against negligent, reckless or wanton drivers, intent on killing themselves and others. To ’ts credit, the commission in its brief does not raise this spectre. The reason seems obvious. Notwithstanding that the turnpike charges tolls, it is nevertheless a public highway. State, ex rel. Kauer. v. Defenbacker, 153 Oh St 268: Secs. 5537.01 (B). 5537.03. 5537.07 and 5537.21 R. C. It meets all the tests set forth in State v. Root. 132 Oh St 229. for a de jure highway. See Donega.n Sr Fisher. Enforcement on Shopping Center Roads. Traffic Digest and Review. October. 1959, pp. 15. 36.

Consequently, since the Turnpike Rules do not supersede State traffic laws on the turnpike, it follows that the provisions of Chanters 4507, 4509. 4511. 4513 and 4549 R. O., are as fully effective on the turnnike a.s on anv highway in the state. Since, in particular. §4511.21 R. C.. ppeeifies a prima facie speed limit subject to proof as to reasonableness. no real problem in allowing higher speeds on the turnpike presents itself The matter is merely one of discretion in making or failing to make arrests.

This factor cannot, of course, be used against the defendant in this case. He was charged with the violation of a statutory section which is invalid and of a rule which, legally, does not exist. The affidavit is dismissed and defendant discharged.

Since it would appear that review of the decision of law herein is likely, counsel should prepare and file Journal Entry giving effect to this opinion on or before November 20. Such entry should be sufficiently detailed to constitute a bill of exceptions pursuant to §§2945.67 et seq, R. C. Counsel should also give appropriate notice to the Attorney-General so that he may, if he desires, interest himself in such review.


author: By BRYANT, PJ.

text:
    WICHTERMAN, Plaintiff-Appellee, v. BROWN, Secretary of State, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6288.
    Decided October 3, 1959.
    Thomas W. Applegate, Columbus, for plaintiff-appellee.
    Mark McElroy, Atty. Geni., Michael Kouskouris, Gerald Celebreeze, Asst. Attys. Geni., Columbus, for defendant-appellant.
   OPINION

By BRYANT, PJ.

• This is an appeal from a final order of the court of common pleas of Franklin County granting a permanent injunction enjoining Ted W. Brown, as Secretary of State, defendant-appellant herein, from taking steps to place on the ballot on November 3, 1959, a proposed constitutional amendment relative to metropolitan federations. The action seeking the injunption was brought by Paul Wichterman, plaintiff-appellee herein, a registered voter, citizen and taxpayer of Franklin Township in Franklin County, Ohio.

The 103rd General Assembly of Ohio prior to adjournment had acted upon Amended House Joint Resolution No. 31, sponsored by Representative McGovern and others, which according to its title “proposed to amend Article X, Ohio Constitution by adding Sections 5 and 6 thereto with reference to metropolitan federations.”

The petition was quite long and set forth in detail the steps taken in connecion with the adoption of the resolution, and the answer likewise set forth three defenses, including a general denial and an affirmative allegation that all constitutional steps required to be taken were fully accomplished and that Wichterman had been guilty of laches.

The parties have agreed that the evidence in the court below shall be taken as the evidence in this court. The evidence includes oral testimony taken before the court below and an agreed statement of facts.

It appears that the resolution here under consideration, which we shall call the McGovern resolution, was with a single exception, properly and regularly adopted by the house and senate of the 103rd General Assembly of Ohio, in the opinion of both parties to this appeal. That exception relates to whether or not there was a compliance on the part of both the house and senate with the requirements of Section I, Article XVI, Ohio Constitution, which so far as here pertinent reads as follows:

“Either branch of the general assembly may propose amendments to this constitution: and if the same shall be agreed to by three-fifths of the members elected to each house, such proposed amendments shall be entered on the journals, with the yeas and nays, and shall be submitted to the electors * *

We find that the McGovern resolution was adopted by each house of the legislature by the requisite number of votes and it is equally clear that the yeas and nays were entered on the journal. The parties are in complete disagreement as to whether or not the full text of the proposed amendment was entered on the journals of the two houses.

It seems clear that the clerk of each house keeps a detailed record for each legislative day of all of the matters taking place and that the various papers which make up that record are referred to as the original daily journal. Thus for each legislative day for the house of representatives and also for the state senate there is this collection of papers called the original daily journal.

In order to make the contents of each original daily journal available to the full membership of both houses and the public, the clerks of the two houses, at the close of each legislative day, make physical delivery to the printing firm holding this printing contract, the original daily journals for the two houses. Without change or modification, each of the two 'daily journals is set up in type and 600 copies are printed and are ready the following morning for distribution to the full membership of the house and senate and in a limited sense to the public. The printed version of each day’s journal is referred to as the printed daily journal.

The McGovern resolution was adopted in the House of Representatives on June 3, 1959, and the printed daily journal for that date, available for distribution the foilowing day, referred to the resolution by title only, but did not contain the text of the proposed amendment. This resolution was acted on by the senate on July 8, 1959 and July 22, 1959, the former date being action to amend and adoption in amended form, and the latter date being the time when the senate withdrew its amendments and in effect, as the lower court found, adopted the resolution in the form in which adopted in the house. The printed daily journal for the senate for these two dates, available for distribution on the following legislative day, set forth the title of the resolution, the yeas and nays, and on the earlier date the text of the senate changes in the proposed amendment, but nowhere did either of the printed daily journals of the senate for the dates in question contain the text of the proposed constitutional amendment.

On August 1, 1959, the President of the Senate and the Speaker of the House signed the enrolled form of the McGovern resolution and on August 14, 1959, the 103rd General Assembly of Ohio adjourned sine die and thus brought to a close the regular session of that body. On August 28, 1959, at 9:05 A. M., this proceeding was begun by the filing of the petition for an injunction by Wichterman.

It was on August 28, 1959, at about twelve noon, three hours after the filing of this lawsuit, that the clerks of the two houses for the first time entered the text of the constitutional amendment proposed by the McGovern resolution into the original' daily journal of their respective houses by inserting a copy of the enrolled resolution containing the amendment as proposed in full.

It is in face of the fact situation as above set forth that the question arises whether or not the legislature has complied with the terms of Section 1, Article XVI, Ohio Constitution, herein above quoted in part, which requires, in case of agreement by a three-fifths vote of the members elected to each house that “such proposed amendments shall be entered on the journals, with the yeas and nays.”

The General Assembly of Ohio is a coordinate branch of government and its actions are entitled to the highest respect by the other two branches of government, the executive and the judicial. There is no question that unless stopped by the courts, the Secretary of State will publish the text of the proposed amendment relative to metropolitan federations.

Thus the electorate will be fully informed when they go to the polls and can make the ultimate decision as to whether or not this proposed amendment should be added to the Constitution of Ohio. We also observe that there is no confusion or uncertainty as to the exact form of the language of the proposed constitutional amendment and that on August 1, 1959, the presiding officers of the two houses signed the certificate attached to the finalized or enrolled form of the McGovern resolution, thereby attesting to the fact that the resolution was duly adopted and containing the full text of the proposed amendment.

We also observe that this so-called certification of the two presiding officers as provided for in Section 17, Article 11, Ohio Constitution, is regarded as sufficient in the serious and important task of enacting laws including criminal statutes which may take away the liberty or even the life of those affected.

But the question now before us is not new to our courts. In 1957, the Supreme Court of Ohio in the case of Leach v. Brown, Secretary of State, 167 Oh St 1, involving a constitutional amendment proposed by the legislature, ruled that the amendment might not be placed on the ballot where the text of the proposed amendment as printed in the journals of the two houses was substantially different.

In Leach v. Brown, supra, there was a per curiam opinion concurred in by four of the seven judges and one of these four has since died. There were strong dissenting opinions by Weygandt, C. J., and Herbert, J. One judge did not participate.

The dissenting opinions pointed out the difficulties attendant upon a legislative session and the nearly inhuman burden placed upon the officials and employees keeping the records. They deplored the distinction between the weight given to the certificates of authenticity by the signatures of the presiding officers in the case of bills being enacted into laws and the opposite view with respect to resolutions proposing to submit to the voters amendments to the Constitution.

In Leach v. Brown, supra, the sole error was that after the amendment of a resolution proposing to submit a constitutional amendment, a clerk by mistake printed in the journal the text of the proposed amendment before changes were made. The correct text was published in one journal, the correct text could be ascertained by considering other parts of the other journal and the form of resolution certified to by the officers of the two houses unquestionably was correct, yet the entire proceeding was halted.

In light of that decision, which so far as we can find, is unreversed, we have no choice of decision other than to make the findings of fact which we have set forth above and to determine the law just as it was determined by the court below. In this case, there was no publication or entering on the journal at all of the text of the proposed amendment at anytime while the legislature was in session, or indeed up to the very moment when the petition in this case was filed.

We therefore find and determine that the permanent injunction as prayed for should be allowed and the order of the court below will be reinstated and the order heretofore made by this court staying the injunction of the court below will be set aside. In the event of an appeal if a further stay be desired, provision may be made in the entry journalizing this decision.

DUFFY. J, concurs.

MILLER, J, not participating.