author: By MILLER, J.

text:
    MASSER, d. b. a. HARRY MASSER & COMPANY, Plaintiff-Appellee, v. JOHNSON, Extrx., Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5987.
    Decided December 23, 1958.
    Benjamin F. Levinson, Columbus, for plaintiff-appellee.
    Guy R. Martin, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court in favor of the plaintiff and rendered upon the verdict of the jury. In the petition the plaintiff alleges that he is the owner and holder of a certain hote executed by H. J. Johnson, on which there is due and unpaid the sum of $3500 and interest; that the defendant is the duly appointed executrix of H. J. Johnson, deceased, and that said claim was duly presented tp her for payment, but that the same was disallowed.

To the petition the defendant filed her answer in which she admits' that Harry J. Johnson is deceased; that she is the duly appointed executrix of his estate, and that said Harry J. Johnson during his lifetime executed a note for $4000 to the plaintiff. Further pleading, the answer alleges “that said decedent, during his lifetime, paid said note to the plaintiff and there is nothing now due thereon, and defendant denies each and every other allegation in said petition contained not herein admitted to be true.” The plaintiff’s reply denies the payment and all other allegations contained in the answer that do not specifically admit the allegations in the petition.

The bill of exceptions reveals that at the trial the plaintiff offered the note in evidence; proof that consideration for the same was $4000, and that the sum of $500 has been paid as shown on the endorsement. Also, that there is a balance of $3500 still due and owing on the same. The plaintiff then rested and the defense offered evidence which showed the receipt of the $4000, the same being reflected in Johnson’s bank statement, and then offered further proof that the note had been paid but that it had never been surrendered to the maker. In reply to this defense, the plaintiff offered evidence tending to establish the fact that two loans were made to Johnson on March 19, 1947, each for the sum of $4000; that one was made by the plaintiff’s son in the morning of said date, which was evidenced by a check, and the other made in the afternoon of the same day by the plaintiff. The latter was testified to as being a cash loan and it was for this that the note was given. The plaintiff admitted the payment of the loan evidenced by the check, but contended that only the sum of $500 had been paid on the note. On the issue joined, a verdict was returned for the plaintiff in the sum of $3500 and interest.

The errors assigned are:

1. The Court of Common Pleas erred in overruling the motion of defendant-appellant for a new trial.
2. The trial Court of Common Pleas erred in exclusion of evidence offered by defendant-appellant to the prejudice of defendant-appellant.
3. The trial Court erred in his charge to the jury and to which the defendant-appellant excepted.
4. The verdict of the jury is contrary to the evidence.

Since the first assignment of error is dependent upon the other three, we will first confine our attention to assignment No. 2; that is, did the court err in excluding certain testimony upon cross-examination by the defendant?

The record reveals that the testimony to which the objections were sustained requested a witness being cross-examined to comment upon the testimony of another witness. In sustaining the objection to one of the questions, the court stated that it is not proper to propound one question to a witness which requires it to comment upon the testimony of another.

We are in accord with the court’s ruling in sustaining the objection. It should also be noted that the extent to which a witness may be cross-examined as to matters merely collateral or immaterial rests largely in the sound discretion of the trial court, and we find no abuse of such discretion. See 3 O. Jur (2d), 749, Section 770; Cowan v. Kinney, 33 Oh St 422; Shepherd v. Midland Mutual Life Insurance Company, 152 Oh St 6.

In Fritz, Admr. v. New York Central Railroad Company, 59 Abs 209, the court said at page 210:

“No witness is permitted to evaluate the testimony or credibility of another; this is the sole function of the jury. No prejudicial error was committed in rejecting this or any other testimony offered by the defendant.”

We find no prejudlicial error in this assignment.

It is next urged that the court erred in its charge to the jury. In charging the jury the court stated at page 79 of the record:

“Basically since the parties have admitted the execution of the note, and since there is no dispute as to the fact that the note in question was in possession of the Plaintiff at the time of the death of the decedent, Harry J. Johnson, there is but one issue for you, the Jury, to determine and that issue simply is the issue made by the Answer as to whether or not payment has been made on said note.
“As to this issue the Defendant has the burden of proof. By burden of proof is meant the duty of producing evidence to lead you to believe that the facts are as the party who has the burden claims them to be.
“The law requires a party who permits a fact to exist to prove the existence of such fact by the preponderance of the evidence.
“By preponderance of the evidence is simply meant the greater weight of the evidence. Preponderance of the evidence does not necessarily .consist in the greater number of witnesses. There might be a greater number of witnesses on one side and a lesser number on the other side and the Jury might properly find the preponderance or the greater weight of the evidence on the side having the lesser number of witnesses and, of course, the converse of that is also true. It is a matter for the judgment and the opinion of the Jury after hearing and carefully weighing all of the evidence to determine as to the basic issue here involved where the weight of the evidence lies. If the weight of the evidence is evenly balanced .as to such basic issue then the party having the burden of proof of such issue in this case the Defendant having the burden of proof of such issue fails of proof.”

The question here presented is whether or not the court erred in charging the jury that there was only one issue upon its determination, and that was the issue of payment. We are of the opinion that from the pleadings and evidence, payment was the only issue since the answer admitted the making of the note, and the consideration was clearly shown to have been the sum of $4000. The court, therefore, did not err in defining the issue to the jury.

Now, was the court correct in charging the jury that the burden of proof in proving payment was upon the defendant? It is true that the burden of proof rests upon the party who has the affirmative of the issue and which remains with him throughout the trial. He has the burden of establishing each and every fact which constitutes the essential elements of his case, but payment is an affirmative defense and the burden of proving this fact rests upon the defendant.

In Hurd and Long’s edition of Ohio Trial Evidence, it is said at page 94, Section 5.9:

“In an action on a promissory note where the petition alleges that there is a specified amount due thereon from the defendant to the plaintiff, an answer alleging payment of the note in full is an answer setting up new matter in confession and avoidance. And if payment is denied by the plaintiff, the defendant has the burden of proof.”

The question is also ably discussed in 21 O. Jur. (2d), 177, Section 156, as follows:

“The defendant has the burden of proof, in the true sense of that term, of matters pleaded which are in the nature of a confession and avoidance, such as justification for the discharge of a servant; the execution of a release of the claim sued on; accord and satisfaction; payment; failure of consideration, * *

In Bear v. Bear, 29 Oh Ap 272, the court had for consideration the burden of proof when the defense was that of a failure of consideration. It said at page 274:

“The evidence leaves no basis for contending that the promissory notes did not have a sufficient consideration when executed, but reliance is placed on a failure, or partial failure, of that consideration subsequent to the execution of the notes. The evidence does not disclose an entire failure of consideration, but at most a partial failure. Such a defense assumes that the notes were based on a sufficient consideration and were at one time enforceable, but that a defense has subsequently arisen. That is an affirmative defense, and the burden of proof to sustain it rested upon the defendant in the trial court.” (Emphasis ours.)

Counsel for the appellant cites Ginn, Admr. v. Dolan, 81 Oh St 121, but this case is not on all fours with ours for it discusses the burden of proof when the issue is a want of consideration, which is not an affirmative defense. The court recognizes that when an affirmative defense is pleaded, the burden of proof on this issue is on the defendant, saying at page 129:

“It is proper to say further, replying to a suggestion by counsel in argument, that a plea of failure of consideration, or of payment, presents a case very different from this. These defenses, as it were, confess and avoid. They are affirmative defenses, and upon such the burden is upon the defendant from the beginning to the end, just as it is upon the plaintiff here.” (Emphasis ours.)

It is our conclusion that the court did not' err in placing the burden of proving payment upon the defendant. We have examined the entire charge and are of the opinion that it is correct in its entirety.

We are of the further opinion that the verdict is not against the manifest weight of the evidence as the jurors were the sole judges of the credibility of the witnesses and the weight to be given to their testimony, and the verdict is in accordance with the evidence offered on behalf of the plaintiff.

Finding no error in the record, the judgment will be affirmed.'

PETREE, PJ, BRYANT, J, concur.


source: Caselaw Access Project

author: By HOOVER, J.

license: Public Domain

text:
    LAKEWOOD (City), A Municipal Corporation, Plaintiff, v. THORMYER, Individually and as Dir. of Highways, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 703617.
    Decided November 28, 1958.

      Arter, Hadden, Wykoff & Van Duzer, Ashley M. Van Duzer, Clay Mock, William R. Hapner, Jr., Cleveland, George E. Fedor, Director of Law, Lakewood, for City of Lakewood.
    William Saxbe, Atty. Geni., Hugh E. Kirkwood, Jr., I. Charles Rhoads, Asst. Attys. Geni., John T. Corrigan, Pros. Atty., A. M. Braun, Asst. Pros. Atty., for Director of Highways.
   OPINION

By HOOVER, J.

On the west side of Greater Cleveland the river of Rocky River cuts a deep gash into the earth as it flows northerly into Lake Erie. On its west bank is the city of Rocky River; on its east bank, the city of Lakewood. The river’s center line is the boundary between these two cities.

Not far south of the lake, a highway, known both as State Route No. 2 and as State Route, U. S. No. 6, roughly parallels the lake shore, running in an easterly-westerly direction and crossing the river’s chasm by a bridge.

In order to get across the river, the highway does sort of a multijointed contortion. Through much of Lakewood it proceeds westerly over either Lake Avenue or Clifton Boulevard in a fairly straight line until, as it approaches the river, it comes to a point at the west end of Clifton Boulevard. There it makes a left-angle turn onto West Clifton Boulevard, then a right turn onto Sloane Avenue which in turn makes an abrupt turn to the left and then a right angle turn onto the bridge. Once across the bridge, it makes a sharp turn to the right, passes under a railroad bridge, then makes an abrupt left turn on West Lake Road. In addition there are some lesser curves.

Going over this same bridge, is a third highway known as State Route U. S. No. 20. It courses westerly through Lakewood over the same streets as the other two routes including the tortuous turns leading to the bridge, but, on leaving the west end of the bridge, makes a left-angle turn and goes south on Wooster Road.

For simplicity, we use the name “Director” to designate either the Director or Acting Director of Highways of Ohio. The Director has proposed to eliminate this highway contortion by relocating part of the highway (which we sometimes call the “Director’s Proposal”) so as to make it run in practically a straight line from the end of Clifton Boulevard in Lakewood to West Lake Road in Rocky River and crossing the river with a new bridge. This proposal, a limited access highway, cuts right through properties in a fine, Lakewood residential district — Clifton Park. Lakewood objects — hence this suit.

The Director claims the right to effectuate his proposal without Lakewood’s consent by virtue of power vested in him by §5521.01 R. C., which reads in part:

“The director may establish, construct, reconstruct, improve, widen, maintain, or repair any section of state highway within the limits of a city, including the elimination of railway grade crossings, and pay the entire or any part of the cost and expense thereof from state funds, but in all cases he shall first obtain the consent of the legislative authority of such municipal corporation.
“Provided, that when a federal aid primary highway or a federal aid interstate highway is located within a municipal corporation and, in the opinion of the director, is in urgent need of repair, reconstruction, widening, improvement, or relocation, so as to accommodate the traveling public, the director of highways shall submit a written request to the legislative authority of the municipality for its consent to the desired improvement. The legislative authority shall within sixty days after such written request has been received from the director either grant its consent to the improvement or refuse such consent by filing in writing with the director a statement of its reasons for refusing the consent and such alternate proposals as it deems reasonable. If the legislative authority fails to act or refuses consent, the director may upon consideration of the reasons for rejection make a resolution declaring the necessity of said improvement which shall be spread upon his journal and then proceed in the same manner as if consent had been given. A certified copy of said resolution shall be served upon the municipal legislative authority which may, within twenty days from the date of said service, appeal to the court of common pleas of the county in which such municipal corporation is situated, upon the reasonableness and necessity of the action provided for in the resolution. In the hearing upon appeal the director may introduce the record of his proceedings and such other competent evidence as he desires in support of his resolution, and the municipality may likewise introduce competent evidence opposing such resolution. The court may affirm or revoke said resolution. The decision of the common pleas court may be appealed to the court of appeals and the supreme court as in other cases. If the court affirms said resolution the director may proceed with said improvement with or without the co-operation of said municipality.”

For brevity, we shall refer to this statute as “the proviso.” This is' a question of first impression. The proviso has never been the subject of litigation. In fact, this is the first time the Director has taken action under it.

A physical mountain of contention has been heaped before the court — approximately 1000 pages of testimony, 225 pages of briefs, 75 different exhibits and 700 pages in the exhibits. Consequently we shall not discuss all the questions raised, but only some of the important ones. Many of the questions readily topple in the battle of briefs and need little or no treatment here.

At the outset we have three procedural questions to decide. First, is the hearing in this court a trial de novo? The proviso does not specifically say one way or another. However, a study of its statutory history convinces us that this trial is now de novo for two reasons. Before its last amendment, the proviso did not provide for the introduction of new evidence in this trial, while now it does. Before that amendment, the proviso specifically provided that this should not be a trial de novo, in these words “Such appeal shall not be heard as a trial de novo.” (122 O. L. 416; it was once §1178-42 GO. That provision was deleted by the amendment. As is said in 37 O. Jur. (Statutes) 769, Sec. 439.

“* * *the presumption arises that the legislature intended some change in the effect and operation of the law by a substantial change ■ in the language of the statute.”

See 40 O. J. S. (Highways) 80, sec. 196.

The second procedural question is — which party has to proceed first and which party has the burden of proof? The statute does not specifically say which. The Director volunteered to proceed first and in his brief he acknowledged that he has the burden of proof. The court declares this the proper procedure. It is significant that the statute first mentions that the Director may introduce evidence, and then mentions that the municipality may do it. Because of the extraordinary nature of this procedure, this interpretation seems fairer.

The third procedural question is — is this controversy governed by The Ohio Administrative Procedure Act? We do not believe that it is. Sec. 119.01 (A) R. C.

Approaching the substantive questions, the first one is — has the Director brought himself within the provisions of the proviso so as to be entitled to proceed thereunder? We believe he has. An analysis of the proviso shows that there are seven essential steps to the bringing of this action, namely:

1. A federal aid primary highway or a federal aid interstate highway located within Lakewood must be involved.

2. The Director must determine that such a highway is in urgent need of repair, reconstruction, widening, improvement, or relocation, so as to accommodate the traveling public.

3. The Director must submit a written request to the legislative authority of Lakewood for its consent to such improvement.

4. Within sixty days after receiving such written request, Lakewood’s legislative authority must either grant its consent to the improvement or refuse such consent by filing in writing with the Director a statement of its reasons for refusing the consent and such alternate proposals as it deems reasonable.

5. If Lakewood’s legislative authority fails to act or refuses to consent, the Director must upon consideration of the reasons for rejection make a resolution declaring the necessity of said improvement and spread it upon his journal and proceed in the same manner as if consent had been given.

6. A certified copy of said resolution must be served' on Lakewood’s legislative authority.

7. Within twenty days from the date of said service, Lakewood must appeal to this court upon the reasonableness and necessity of the action provided for in the resolution.

We believe there is no question but that there has been compliance with steps No. 2 through No. 7. It would serve no useful purpose to spread the details of it here; suffice it to say that the appeal is here via Lakewood’s refusal to consent and its making alternate proposals.

However, Lakewood seriously contends that step No. 1 has not been met because, it says, no federal aid primary highway or federal aid interstate highway is involved. In support of this, it points out that no request has been made of federal authorities for federal aid, and that no federal aid has been granted, to construct the Director’s Proposal. This is not enough to establish Lakewood’s contention. The testimony clearly shows that both State Routes U. S. No. 6 and No. 20 in the area as they existed in their old location are on the federal aid primary highway system. In other words, the whole tortuous route proposed to be eliminated is on the system, the Director’s Proposal connects two points on the system and the system extends westerly beyond the most westerly of those two points and easterly beyond the most easterly of the points. That is sufficient compliance. Note that the proviso reads:

“Provided, that when a federal aid primary highway or a federal aid interstate highway is located within a municipal corporation and, in the opinion of the director, is in urgent need of repair, reconstruction, widening, improvement, or relocation” etc.

Note that this proviso contemplates change in the highway by “relocation.” It doesn’t say that the proposed relocation must be- on the federal aid system. The requirement is satisfied if, what’s on the system, is an existing highway that’s proposed to be relocated.

Lakewood claims that the Director’s Proposal does not come within step No. 1, because it really contemplates building a new highway and not relocating an existing one. “To relocate” means to locate again. Webster’s New International Dictionary (2nd ed., unabridged) 2105. Naturally, it contemplates a change of course. There doubtless comes a time when a proposed deviation is so great that it must be considered the construction of a- new highway instead of the relocation of an existent way. It is a question of fact in each case. We have no hesitancy here in finding as a fact that the Director’s Proposal is a relocation and not a new highway. To hold otherwise would be like saying that a couple of hairs on a Saint Bernard’s tail was wagging him. If one were to look down on the situs from a helicopter and see what had been State Routes U. S. No. 6 and No. 20 extending in the distance with the Director’s Proposal completed, we doubt that he would conclude that the highways had vanished. In Bossard v. Hotchkiss, 190 Wis. 29, it is said:

.“When we consider the fact that the present ordinary state highway is from fifty to several hundred miles long, a relocation of five or ten miles or more is not in fact the laying out of a new highway but only a change in an existing one * * *.” (p. 31.)
“A state highway may be relocated under sec. 8308, Stats., without the abandonment of the old highway.” (syl. 4.)

See Jenkins v. State Highway Commission, 205-Ia. 523, syl. 2, 532-33 (approving 3 mile cut off which eliminated 4 miles of 350 mile road); and Wilkinson County v. State Highway Commission, 191 Miss. 750, syl. 1 (approving new line departing 8 to 12 miles from old one).

Lakewood contends that the procedure provided in the proviso is unconstitutional because it does not provide Lakewood with an opportunity for a hearing before the Director. This contention we cannot accept. We believe the answer is simple when approached through the analogy of certain fundamental principles of eminent domain and highway law, which we now discuss. The Director starts action under the proviso by deciding that a certain type of highway “is in urgent need of repair, reconstruction, widening, improvement, or relocation, so as to accommodate the traveling public.” In other words, it is a decision as to necessity. In the field of eminent domain a public necessity must exist before government can take property away from a private owner without his consent. The law as to this latter type of necessity has been thoroughly litigated and furnishes many analogies which are helpful in deciding the “need” question under the proviso.

Some of these fundamental principles are as follows: When the intended use is public, the determination of the necessity for, and the proper extent of, the taking of private property under the power of eminent domain are primarily legislative or political questions (we shall refer to them as “political question”); they are not judicial questions to be' determined by courts. Other determinations which are political and not judicial ones, are: the utility of the proposed improvement, its expediency, and the selection of a particular location, line or route. These being political questions, the legislature may determine them itself, or it may, and usually does, delegate this power of determination to some subordinate agency (which we shall some times refer to as the “grantee of the power”). Since these are political questions and not judicial questions, it is not necessary that the legislature provide a hearing for the property owner on these questions before the legislature or the grantee of the power makes a determination of them. The legislature may provide such a hearing but it need not. Moreover, the legislature may provide for an appeal to a court as to such determinations, but it need not. If the legislature provides no such hearing, courts will not intervene unless there is bad faith, fraud or abuse of discretion. In 19 O. Jur. 2nd (Eminent Domain), 427, 428, sec. 19, it is said:

“The necessity for, and the proper extent of, the taking under the power of eminent domain are primarily legislative questions, and, in the absence of fraud, bad faith, or abuse of discretion, such determination will not be disturbed by the courts.
“The legislature may determine the propriety of exercising the power of eminent domain, or it may delegate the powér of determination to subordinate agencies, including private corporations.”
How widely this power has been delegated by the Ohio Legislature is seen in 19 O. Jur. 2nd (Eminent Domain) 421, secs. 12, 13. In 1 O. Jur. 2nd (Administrative Law And Procedure) 502-03, sec. 107, it is said:
“There is no right to notice of the exercise of political rather than judicial powers, as where county commissioners are authorized, upon petition, to determine the necessity of appropriating lands for a ditch which is necessary and conducive to public welfare.”

In an annotation in 65 A. L. R. 504, it is said:

“On the general question of the respective functions of the courts and of the legislature (or the grantee of legislative power), with respect to the necessity for taking property under eminent domain, it may be said that in general the question of the utility of the proposed improvement. the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected, and the consequent necessity for taking the land selected for its site, are all questions exclusively for the legislature, with which the courts have no power to interfere; yet the courts have power to interfere to prevent an abuse of discretion delegated to the legislature * * *.”

See Note on “Judicial power over the right of eminent domain,” 22 L. R. A. n. s. 1, at 64-71. In 40 C. J. S. (Highways) 79, sec. 196, it says:

“The necessity and propriety of the improvements, their kind, character, and extent, and the matter of their execution or construction are confided to such boards, officers, or agencies as the legislature has provided for that purpose, and, in the absence of- any provision for the review of their action on appeal or otherwise, their findings and decision are final, and not subject to review, as long, at least, as they act in good faith and within the scope of the authority conferred on them.” .

In 18 Am. Jur. (Eminent Domain) 731-32, sec. 105, it is said:

“The legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected, and the consequent necessity of taking the land selected for its site are all questions exclusively for the legislature to determine, and the courts have no. power to interfere or to substitute their own views for those'of the representatives of the people. Whether there is such an exigency — whether it is wise and expedient or necessary that the right of eminent domain be exercised— rests solely within the determination of the legislature. The state is not obliged to debate its needs with any property owner. The state determines for itself whether, in a given case, an exercise of the power of eminent domain is needful. The question is political, and the state is not obliged to provide any tribunal in which interested persons may be heard on the question.”

In 39 C. J. S. (Highways) 1033, sec. 97, it is said:

“In the exercise of the police power, the state may change or alter public highways. The power of the state in this respect is vested in the legislature, which may exercise it either directly or by authorizing, the making of the change or alteration by some appropriate agency * * *.”

In 40 C. J. S. (Highways) 25, sec. 177, it is said:

“The construction, maintenance, and repair of public highways is a governmental function, which belongs primarily to, and may be exercised by, the state and the state legislature. The power * * * js * * * part of its police powers * * * Subject to constitutional restrictions, the work of constructing or maintaining highways may be done by the state, in its own name, or * * * may be conferred * * * on * * *.” (Then is stated a long list including a designated officer such as a state highway director.)

In 40 C. J. S. (Highways) 39, sec. 179, it is said:

“A state legislature has the authority to lay out the routes of the highways of the state * * *. The legislature may exercise this power through its own agencies or delegate it to inferior bodies * * *. The location of state highways is, under the statutes, ordinarily vested exclusively in the state highway officers, and such authority cannot be exercised by the courts.”

On the same page, fn. 19, it is said:

“The power to determine the location of such highways is a legislative, not a judicial function.”

In 18 Am. Jur. (Eminent Domain) 735, sec. 108, it is said:

“A broad discretion is necessarily vested in those to whom the power of eminent domain is delegated, in determining what property is necessary for the public purpose, with respect to the particular route, line, or location of the proposed work or improvement; and the general rule is that the courts will not disturb their action in the absence of fraud, bad faith, or gross abuse of discretion.”

In 18 Am. Jur. (Eminent Domain) 685, sec. 57, it is said:

“Ordinarily the question whether the public necessity and convenience require the laying out of a particular public way is wholly for the commissioners, charged with the duty of laying out ways, to decide; and, unless specifically given the power by statute, it is not for the courts to overrule their decision.”

In 18 Am. Jur. (Eminent Domain) 733, sec. 106, it is said:

“Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment. It follows that when the legislature has delegated the power of eminent domain to municipal or public service corporations, or other tribunals or bodies, and has given them discretion as to when the power is to be called into exercise and to what extent, the courts will not inquire into the necessity or propriety of the taking.” (See also, 18 Am. Jur. 976, sec. 334.)

In 27 O. Jur. 2nd (Highways And Streets) 27-28, sec. 13, it is said:

“* * * the discretion vested in county commissioners and the State Director of Highways with respect to the determination of the location or route of a proposed highway will not be interfered with by the courts of injunction, in the absence of fraud or an abuse of such discretion.” (Citing State, ex rel. Huffman v. Shuff, 20 Oh Ap 432, and an annotation on “Power and duty of highway officers as regards location or routes of roads to be constructed or improved” in 91 A■ L. R. 24?.)

See also, Nichols, Eminent Domain (3rd ed., 1950), Vol. 1, pp. 186-191, 209-210, secs. 3.1 (1), 3.1 (2), 3.21 (1). In a case arising in Ohio, Sears v. City of Akron, 246 U. S. 242, it was held:

“A state statute held not to violate Art. I, Sec. 10 of the Constitution, or the Fourteenth Amendment, in authorizing a city to determine without hearing the necessity and extent of the appropriation of private property for its public purposes.” (syl. 4.)
± * $ * *
“Plaintiff contends that the ordinance is void because the general statute which authorized the appropriation violates both Article I, Sec. 10, of the Federal Constitution and the Fourteenth Amendment, in that it authorizes the municipality to determine the necessity for the taking of private property without the owners having an opportunity to be heard as to such necessity * * *. It is well settled that while the question of whether the purpose of a taking is a public one is judicial * * * the necessity and the proper extent of a taking is a legislative question.” (p. 251.)

In Zimmerman v. Canfield, 42 Oh St 463, 471, it is said:

“So far the proceedings are preliminary. The State has delegated to the commissioners so much of her power of eminent domain as is necessary to determine whether the construction of the ditch is so far a public necessity, as that it is demanded by considerations of public health, convenience or welfare. There is nothing in the constitution of our state which guarantees to the owner of lands traversed by a ditch a trial by jury, or other judicial investigation, to determine upon its necessity or whether it will conduce to the public good.”
“While the statutes in question do provide for such a hearing upon appeal, it is so rather as a matter of favor than of right.”
“The commissioners, in determining this preliminary question of the necessity of appropriating lands for the purposes of a ditch, are called to the exercise of political and not judicial powers. It is a question rather of public policy than of private right. * * * (Citations.) ,
“It is not upon the question of the appropriation of lands for public use, but upon that of compensation for lands so appropriated, that the owner is entitled, of right, to a hearing in court and the verdict of a jury.”

Other authorities to effect that the land owner has no constitutional right to a hearing on the question of necessity are: North Laramie Land Co. v. Hoffman, 268 U. S. 276, syl. 3, 284 (here particular objection was made because there was no opportunity to be heard on the question of location); State of Georgia v. City of Chattanooga, 264 U. S. 472, syl. 3, 483; Joslin Mfg. Co. v. City of Providence, 262 U. S. 668, syl. 10, 678; Bragg v. Weaver, 251 U. S. 57, syl. 1, 58; 19 O. Jur. 2nd (Eminent Domain), 429, sec. 19; 2 Lewis, Eminent Domain (1909 ed.) 1008-09, sec. 567; 16-A C. J. S. (Constitutional Laws) 931, sec. 646.

By analogy, we believe that powers given to the Director by the provisio to make a determination of “urgent need” and to “make a resolution declaring the necessity of said improvement” involve political determinations, and therefore, that Lakewood has no constitutional right to a hearing before the Director as a condition precedent to his exercising such powers.

Moreover, since the proviso gives Lakewood a right to a trial de novo in this court, with the right to appeal to the court of appeals and the supreme court, it cannot say that any constitutional right which it may have to a hearing is denied. See Squire v. Abbott, 5 O. O. (this court) 352, 362; The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Mills Bros., 101 Oh St 173, Syl. 4, 179; 18 Am. Jur. (Eminent Domain), 974, sec. 331; Bragg v. Weaver, 251 U. S. 57, syl. 2, 59; Phillips v. Commissioner, 283 U. S. 589, syl. 3; Anno., 84 A. L. R. 1098, 1099; 16-A C. J. S. (Constitutional Law) 934, sec. 646.

Lakewood further contends that the proviso is unconstitutional because it delegates powers to the Director without establishing sufficient criteria or standards to guide his determination. Thus, he is given power to determine when a certain type of highway “is in urgent need of repair, reconstruction, widening, improvement or relocation, so as to accommodate the traveling public” and to “make a resolution declaring the necessity of said improvement.” We believe that these are elemental concepts speaking for themselves, and, in themselves are guideposts enough.

For authoritative precedent we need look no further than eminent domain statutes. Throughout the land for decades, these have given public officials the right to declare the necessity of taking private property for public improvements without those statutes enumerating long lists of facts that needed to be present to constitute such necessity. That concept has long been recognized as criteria enough. There is no better example than our own state highway “Appropriation of property” statute, §5519.01 R. C., which simply says:

“If the director of highways is unable to purchase property for any purpose authorized by (enumerating code sections) he shall first enter on the journal of the department of highways a finding that it is necessary, for the public convenience and welfare, to appropriate such property as he deems needed for such purposes.”

All through the highway laws, the director is given power to make determination of questions such as necessity, requirement, adequacy, expediency, convenience, practicality, safety etc. Some of these revised code sections are: §§5501.11 (Par. 2); 5501.111 (Par. 1); 5501.13; 5501.14; 5501.161 (Par. 1); 5511.03 (Par. 1); 5511.04 (Par. 4); 5511.06 (Par. 3); 5511.07 (Par. 1); 5513.04 (Pars. 1 and 2); 5515.01 (Par. B); 5515.02 (Par. 3); 5515.05 (Par. 1); 5515.06; 5517.03 (Pars. 1, 2 and 3); 5519.01 (Par. 1); 5521.01 (Par. 2); 5523.01; 5523.02; 5523.03 (Pars. 1, 3 and 4); 5523.10; 5523.16; 5523.19 (Par. 1); 5523.20; 5524.02 (Par. 2); 5524.03 (Par. 1); 5529.02; 5529.03; 5529.04; 5531.01 (Par. 1); 5535.03 (Par. 1); 5535.07 (Par. 1); 5561.16 (Par. 2). Likewise such types of determination are authorized under the Turnpike Commission law without detailed guideposts. See §§5537.01 (Par. B); 5537.03 (locations); 5537.04 (Pars. I, J, L); 5537.05 (Par. 2); and 5537.17 (Par. 3) R. C.

In describing the duties and powers of the Director, §5501.11 R. C., states:

“He may alter, widen, straighten, realign, relocate, establish, construct, reconstruct, improve, maintain, repair and preserve any road or highway on the state highway system * * (Emphasis ours.)

The words we emphasized are also found in the proviso. As part of his daily duty, the director determines whether a highway on the state highway system is in need of improvement. The legislature has given him no more and no less guide posts to make his determination under the proviso, than it did by the enactment of §5501.11 R. C.

To exact the narrow interpretation that Lakewood urges, might place in jeopardy the constitutionality of the entire highway act. In a world that lives on rubber tires, such interpretation is unwise and anachronistic. In Lichter v. United States, 334 U. S. 742, syl. 3 (C), 785, the Supreme Court held that the statutory term “excess profits” as used in the Renegotiation Act was a sufficient expression of legislative policy and standards to render it constitutional against the contention of insufficient criteria, and that Congress need not supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of legislative policy to infinitely variable conditions constitute the essence of the program. At page 786, the U. S. Supreme Court pointed out:

“The following, somewhat comparable, legislative specifications are among those which have been held to state a sufficiently definite standard for administrative action:
“ ‘Just and reasonable’ rates for sale of natural gas, Federal Power Commission v. Hope Gas Co., 320 U. S. 591, 600-601; ‘public interest, convenience, or necessity’ in establishing rules and regulations under the Federal Communications Act, National Broadcasting Co. v. United States, 319 U. S. 190, 225-226; prices yielding a ‘fair return’ or the ‘fair value’ of property, Sunshine Coal Co. v. Adkins, 310 U. S. 381, 397-398; ‘unfair methods of competition’ distinct from offenses defined under the common law, Federal Trade Commission v. Keppel & Bro., 291 U. S. 304, 311-312, 314; ‘just and reasonable’ rates for the services of commission men, Tagg Bros. & Moorhear v. United States, 280 U. S. 420, 431; and ‘fair and reasonable’ rent for premises, with final determination in the courts, Levy Leasing Co. v. Siegel, 258 U. S. 242, 243, 248-250.”

Without doubt Ohio’s Supreme Court espoused this forward-looking viewpoint when it upheld the constitutionality of the turnpike act in State, ex rel. Allen v. Ferguson, 155 Oh St 26; and, without doubt, it espoused it in Matz v. Curtis Cartage Co., 132 Oh St 271.

We find this same progressive viewpoint being followed in the interpretation of highway laws. Neuweiler v. Kauer, 62 Abs 536, 540 (criteria held sufficient where Director required to make preliminary finding that his action “is necessary for the public convenience and welfare”); Englewood v. Bettis, 15 Abs 8, syl. 4, 9-10 (sufficient criteria where Director authorized to erect automatic traffic signals at such intersections on the state highway system “as he may deem necessary”); Holloway v. Purcell, 35 Cal. 2nd, 220, syl. 11, 231-32 (sufficient where authorized to designate and construct freeways on “such terms and conditions as in its opinion will best subserve the public interest,” citing many cases); Dept. of Public Works v. Lanter, 413 Ill. 581, 585-590 (sufficient where empowered to designate and establish freeways “when the safety and convenience of’ highway traffic will be promoted and the public interest subserved thereby”); Ennis v. State Highway Commission, 231 Ind. 311, syl. 7, 325-327 (sufficient where Highway Commission authorized to construct toll road projects “at such locations as shall be approved by the governor, and in accordance with such alignment and design standards as shall be approved by the highway commission”); State, ex rel. Thomson v. Giessel, 265 Wis. 185, syl. 4, 190-194 (sufficient where authorized to determine feasibility of route between two points); Guthrie v. Curlin, 263 S. W. 2nd (Ky) 240, syl. 3, 244; Rogge v. United States, 128 Fed. 2nd 800, syl. 7, 803 (sufficient where Secretary of Interior authorized to fix and collect tolls when deemed necessary and advisable).

A further contention of Lakewood is that the proviso violates the home rule provision of the state constitution. With this we disagree. Home rule is restricted to matters of local self-government. Here involved are some state highways coursing across the state from boundary to boundary. Only a small segment of them pass through Lakewood. State highways are state matters and the legislature has power over them when it 'wishes to assume it. Under the proviso, the state has asserted this power. By withholding its consent under the guise of home rule, a municipality can no more stop the state legislature (or its proper grantee of the power) from improving or relocating a state highway within the municipality’s boundaries than a municipality can stop it from building a state turnpike through the municipality. See State, ex rel. Ohio Turnpike Commission v. Allen, 158 Oh St 168, 174; Lakewood v. Thormyer, 79 Abs 41, 49-50, affirmed item. 50; State, ex rel. Ellis v. Blakemore, 116 Oh St 650, 658; Englewood v. Bettis, 15 Abs 8. In 40 C. J. S. (Highways) 38, Sec. 179, it is said:

“Where authority is conferred on the state highway officers to designate, locate, and alter roads of the state highway system, they may do so without consent of the local authorities.”

Lakewood also assails the proviso on the alleged ground that there is an unconstitutional delegation of power to the federal Secretary of Commerce to determine what municipalities may be subjected to the Director’s authority, since the only highways to which the proviso relates are federal aid primary highways and federal aid interstate highways and since no highway can be placed in either of those categories without the Secretary’s approval. We cannot accept this contention. Sec. 5501.02(B) R. C., expressly authorizes the department of highways:

“To co-operate with the federal government in the establishment, construction, reconstruction, improvement, maintenance, and repair of post roads and other roads designated by the federal authorities.”

It is the Director who selects Ohio highways for placement on these two federal aid systems, and they are subject to the approval of the Secretary. If they are approved they are eligible for federal funds. The state loses no control or supervision over them. They are still a part of the state highway system. Even sovereigns may co-operate without derogating from their sovereignty. Steward Machine Co. v. Davis, 301 U. S. 548, 597. The proviso does not surrender sovereign power. Our legislature itself has laid down a policy and enacted a law. It merely has, and has a right, to say upon what contingencies or conditions the law shall operate. Here that contingency, a permissible one, is the placement of a highway on one of those two federal aid systems. Warm v. City of Cincinnati, 57 Oh Ap 43, syl. 2, 49-50, 53; Opdyke v. Security Savings & Loan Co., 157 Oh St 121, 154-55; The Cincinnati, Wilmington and Zanesville Railroad Co. v. Commissioners of Clinton County, 1 Oh St 77, syl. 5, 86-89; The Home Ins. Co. v. Sweigert, 104 Ill. 653, syl. 2, 664-67. Helpful analogies are found in the so-called corporate retaliatory statutes (14 a C. J. Corps. 1268-69, secs. 3971, 3972; 13 O. Jur. 2nd, Corps., 570-71, sec. 1074; Anno., 91 A. L. R. 795, 798-801; 16 C. J. S., Const. Law. 565-66, secs. 135, 136) in statutes governing formalities of executing wills (9 O. Jur. 2nd, Conflicts of Laws, 798-99, sec. 98; Anno., 169 A. L. R. 554) and in statutes governing the validity of conveyances (9 O. Jur. 2nd, Conflict of Laws, 766, sec. 82; 17 O. Jur. 2nd, Deeds, 111, sec. 5; 11 Am. Jur., Conflict of Laws, 333, sec. 34).

Neither are we convinced by Lakewood’s attack on the constitutionality of the proviso on the grounds (1)- that it is a general law not of uniform operation throughout the state because it treats federal aid primary and federal aid interstate highways as an unreasonable classification and (2) that there is an invalid delegation of power to the officials who determine what highways are to be placed on these federal aid systems because no criteria is provided them to guide such determination. According to the applicable federal statute, the Secretary in approving projects for federal aid “shall give preference to such projects as will expedite the completion of an adequate and connected system of highways, interstate in character.” U. S. C. A., Title 23, sec. 6. Obviously such highways are of prime importance both to the state and nation. According to the criteria law discussed’ above, the criteria here is sufficient. Moreover, we believe the classification reasonable. Reasonableness of classification is all that is required. The presence of some inequality does not mean that a Classification is unreasonable. Mathematical exactness and the impractical are not required. The procedure set forth in the proviso applies to any Ohio municipality when a federal aid primary or federal aid interstate highway within its limits is in urgent need of improvement. It operates equally upon every municipality within the circumstances covered by the act. The Steele, Hopkins & Meredith Co. v. Miller, 92 Oh St 115, syl. 2; State, ex rel. Lemperle v. McIntosh, 75 Oh Ap 164, 170-71; 12 Am. Jur., Constitutional Law, 157-159, sec. 483.

Lakewood strongly urges that the decision which the Director made under the proviso is invalid because at the time it was made he could not act with an impartial mind due to the fact that previously by contract he had bargained away his power to decide, thus making it impossible for him to obey the proviso, that is, to consider Lakewood’s written statement and reach an impartial conclusion. It is a fact that on October 27, 1955, which was sometime prior to his taking action under the proviso, the Director had entered into a written agreement with the Cuyahoga County Board of Commissioners entitled “Agreement of Co-operation between the State of Ohio through its Director of Highways and the County of Cuyahoga through its Board of County Commissioners covering the construction of a new traffic facility consisting of a bridge over Rocky River and the necessary approaches thereto.” Among other things, this agreement provides that public convenience, welfare and necessity require the construction of the Director’s Proposal, that it has been delayed by Lakewood’s refusal to consent, and that the Director intends to use the powers granted to him by the proviso, and thereupon to proceed with the construction.

Without deciding whether this contract placed the Director in such a biased position that this court should set aside his action under the proviso (see Brinkley v. Hassig, 83 F. 2nd 351, 356-57, discussing administrative agency investigating and filing charges, then trying such charges; and 42 Am. Jur., Public Administrative Law, 312-13, sec. 22, discussing rule' of necessity) we believe that if there is any infirmity in the Director’s acts in this regard, it is cured by the fact that Lakewood now is given the opportunity to try this case de novo in an impartial tribunal — the Common Pleas Court. 18 Am. Jur. (Eminent Domain) 983-84, sec. 340; 42 Am. Jur. (Public Administrative Law) 311, sec. 20; Marquette Cement Mfg. Co. v. Federal Trade Commission, 147 F. 2nd 589, syl. 9. 594; Towns v. Klamath County, 33 Or. 225, 233-234.

Finally, we come to the heart of the substantive question involved in this appeal — '“the reasonableness and necessity of the action provided for in the resolution” of the Director. Under date of July 29, 1957, the Director sent a letter to Lakewood’s Council, saying:

“After thorough investigation and consideration, it is my opinion that there is urgent need for the relocation and improvement of U. S. Routes 6 and 20 and St. Rt. 2 in the City of Lakewood, by means of the construction of a new bridge with the necessary approaches thereto, north of the Nickel Plate Railroad, directly connecting Clifton Boulevard, in the City of Lakewood, with West Lake Road in the City of Rocky River, It is my further opinion that the relocation and construction of the improvement just stated will greatly facilitate the accommodations to the traveling public. This letter is officially to request the Council of the City of Lakewood for its consent and co-operation in the relocation and construction of the aforesaid improvement within the boundaries of the City of Lakewood.”

By letter, dated September 25, 1957, Lakewood’s council refused its consent to the Director’s Proposal, stated its reasons therefor and made alternate proposals. On November 1, 1957, the Director entered a resolution on his journal, in which, among other things, he stated:

“WHEREAS * * the legislative authority of * * Lakewood * * refused the consent to said proposed relocation and improvement * * as requested and stated its reasons therefor together with suggested alternates * * and
“WHEREAS, I have * * thoroughly considered the reasons set forth and the proposed alternates * * and
“WHEREAS, in my opinion said highway within said city is in urgent need of relocation and improvement as requested.
“NOW, THEREFORE, be it resolved that said relocation and improvement of said highway Routes U. S. 6 and 20 and State Route No. 2, within the City of Lakewood is necessary and in the public interest *

After considering all of the evidence and the law, the court has no hesitancy in affirming the Director’s resolution. The preponderance of the evidence unquestionably proves “the reasonableness and necessity of the action provided for in the resolution” and that the highways involved were and are in urgent need of relocation and improvement, as recommended in the Director’s Proposal, so as to accommodate the traveling public. In Webster’s New International Dictionary (2nd ed., unabridged), “urgent” is defined as:

“Urging; pressing; plying with importunity; calling for immediate attention; instantly important.”

There, “need” is defined as:

“A condition requiring supply or relief; urgent exigency.”

There, “accommodate” is defined as:

“To furnish with something desired, needed or convenient.”

There, “traveling” is defined as:

“1. That travels; that is or accompanies a traveler; * * suited for one that travels; as * * a traveling salesman.
“2-, That moves as along a fixed course or from place to place; not stationary or confined to a station; circulating; moved or sent from point to point; as * * a traveling circus *

There, “public” is defined as:

“The general body of mankind, or of a nation, state, or community; the people indefinitely.”

There, “reasonableness” is defined as:

“Quality or fact of being reasonable.”

There, “reasonable” is defined as:

“In accordance with reason; of men, acting, speaking, or thinking, under the guidance of reason; just; fair-minded; of their acts, thoughts, etc., agreeable to reason; not beyond the bounds of reason, logic, probability, etc.; as, a reasonable * * decision.”

There, “necessity” is defined as:

“A state or condition imperatively demanding relief or assistance; urgent need.”

When tested by the evidence, these general definitions of the proviso’s pivotal words demand that we affirm the Director’s resolution. So do legal definitions. Space prohibits a review of all the evidence and law bearing on this point, so we shall set forth merely some of the important facts and principles which impel our conclusion.

First, the segment proposed to be relocated, with its narrow bottleneck bridge, its twisty course (there are approximately six sharp or ninety degree angle turns and some slight curves), its obstructive, intersecting streets (approximately fifteen),,its numerous private driveways emptying into the highway, and its busy business districts — all within an approximate distance of a little over a mile — is literally a traffic dam holding back the stream of traffic during extensive critical hours.

Second, it is no answer to say that there is no traffic jam at 2:00 A. M. or 4:00 A. M. or some other time. New of the countless improvements we now have could have been made if tested only by demands of wee morning or off hours. It is sufficient if there is regular substantial jam at critically important hours.

Third, the problem has gray hairs hanging on it. It has dragged through almost a third of a century. An over-patient public is entitled, to an over-due solution. As far back as 1928 a competent engineering study recognized that there was traffic congestion on this bridge. The report of the Bureau of Public Roads in that year sore-thumbed this bridge as one of the most seriously congested sections in our community. The reason given by the report was:

“During peak hours of traffic the capacity of this bridge is greatly exceeded and vehicle speed is reduced to a minimum principally because of the series of turns in the routes approaching and leaving the bridge and congestion at both the east and west approaches.”

Fourth, this highway segment has fallen down on its job of accommodating the traveling public. The traveling public to be accommodated by it are the members of the public at large who want to travel over it. 18 Am. Jur. (Eminent Domain) 668-69, 685-86, secs. 40, 58. It was established by the testimony of the expert witness Carl L. Erb that:

“In all of our studies in connection with the traffic portion of this analysis, one thing was very evident, that there was an enormous reservoir of traffic on both the east and west sides of the river that would like to cross in this area. But the present bridge was so restrictive that there had been no growth whatever in the traffic across the Rocky River in this area. In other words, the bridge was loaded to capacity and there just could be no further additions accommodated. * * Most of the other highways in Ohio have increased in traffic volumes anywhere from 5, 6, 7 percent per year in a fairly uniform rate. That has not been the case in this area where there has been a little growth; no. appreciable growth, largely because the capacity was not there to accommodate that growth.”

Fifth, the term “necessity” does not mean indispensable, but rather, appropriate or fitting to the particular instance. In 19 O. Jur. (Eminent Domain) 426-427, sec. 18, it is said:

“* * the term ‘necessity’ does not mean indispensable, but rather, appropriate or fitting to the particular instance. Such necessity relates to the nature of the property and the uses to which it is applies. It is enough to establish a public necessity when it appears that lands are necessary for such a work, without going further and showing that it could not be constructed without the use of the particular property sought to be appropriated.”

Same: 39 C. J. S. (Highways) 1035, sec. 99.

Sixth, the Director’s Proposal greatly shortens the distance between the two extreme points of the proposal. It saves about 2300 feet. It is approximately one-third shorter than the old route. Shortening of distance is a proper factor to be considered. 40 C. J. S. (Highways) 49, sec. 179; 39 C. J. S. (Highways) 1035, sec. 99; Wilkinson County v. State Highway Commission., 191 Miss. 750, syl. 1, 755.

Seventh, the Director’s Proposal eliminates curves and corners. This is a proper factor to be considered. 40 C. J. S. (Highways) 49, fns. 21, 22; Wilkinson County v. State Highway Commission, 191 Miss. 750, syl. 1 (“eliminating curves * * and any good reason in the interest of through traffic”).

Eighth, the Director’s Proposal provides a fairly direct or straight route between the points its connects. This is a proper factor to be considered. 40 C. J. S. (Highways) 45, sec. 179.

Ninth, the Director’s Proposal eliminates the impediments of many intersecting streets and private driveways.

Tenth, the Director’s Proposal attains greater safety. This is a very important factor to be considered. 40 C. J. S. (Highways) 45, 47, sec. 179; State, ex rel. Huffman v. Shuff, 20 Oh Ap 432, 434.

Eleventh, the Director’s Proposal fairly anticipates future need. This is a proper factor to be considered. 40 C. J. S. (Highways) 45, 55, secs. 179, 181; 18 Am. Jur. (Eminent Domain) 738, sec. 111.

Twelfth, there is urgent need for the particular proposal made by the Director. We have considered all of the alternate proposals. We do not say that there is not some merit in some phases of these proposals. We do not say that there are not some drawbacks in some phases of the Director’s Proposal. There is hardly a pro without some eon. There is hardly any proposition without both affirmative and negative aspects. That is no less true here. We have weighed them all intrinsically and against each other, and we find that the Director’s Proposal is the best solution, the one urgently needed.

Thirteenth, we do not subscribe to the theoretical proposition that, if there were a highway problem in urgent need of solution and if there were three solutions all equally good, the Director could not proceed under the proviso and pick one of the three because it. “alone” wasn’t needed. Such a position is unreasonable and legally unsupportablé. In 19 O. Jur. (Eminent Domain) 427, sec. 18, it is said:

“* * it is no objection to the exercise of the power that other lands, equally feasible, can be acquired by purchase.”

See also, State ex rel. Huffman v. Shuff, 20 Oh Ap 432, 434-35. In 18 Am. Jur. (Eminent Domain) 735, sec. 108, it is said:

“The landowner may not object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose.”

See also, 2 Lewis, Eminent Domain (3rd ed., 1909) 1068, sec. 604.

Fourteenth, our conclusion is supported by the expert testimony of skilled traffic and highway witnesses who are nationally known in their field. We have great respect for Lakewood’s witnesses but, in our humble opinion, they do not begin to match the Director’s expert witnesses in training or experience. It is the same difference that one finds in a highly specialized field, say like brain surgery, between the general practitioner and the skilled specialist..

In conclusion, we are not unmindful that the Director’s Proposal will work hardship on some people. Progress generally does. To those who would criticize residents of Clifton Park for opposing the proposal, let it be said that it is never easy to be uprooted from one’s home, and that there are few who would not prefer to see a highway go elsewhere than over their hearthstone. Any relocation proposal here would hurt someone — perhaps humbler homes. In calling for sacrifice, the law makes no distinction between the high and the humble. Neither is it easy for a judge to hand down a decision that will hurt friends, but he must decide as he sees it according to the law and evidence, otherwise he would not be fit to wear a judge’s robe.


author: By BRYANT, J.

text:
    SOWERS, Plaintiff-Appellee, v. BIRKHEAD, Extrx., Defendants-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5934.
    Decided December 16, 1958.
    Shoemaker, George & Passmore, Columbus, for plaintiff-appellee.
    Smith, Clark & Holzapfel, Columbus, for defendants-appellants.
   OPINION

By BRYANT, J.

This is an appeal on questions of law from the judgment in the court below in the amount of $8,000 in favor of Frank Eldon Sowers, plaintiff, appellee, and against two defendants, Elizabeth Birkhead, as executrix of the estate of Pird W. Birkhead, deceased, and Elizabeth Birkhead, as an individual, age 79 years, defendants, appellants. Inasmuch as Frank Eldon Sowers was only three years of age, the suit was brought by Lawrence Eldon Sowers, his father and next friend.

From a consideration of the entire record it would appear to be the claim of plaintiff-appellee that he was living with his parents at 3849 Aberdeen Avenue, Columbus, Ohio, which residence property was owned by Pird W. Birkhead, since deceased, represented by Elizabeth Birkhead, as executrix, and by Elizabeth Birkhead. The petition contains the formal allegations required as to the appointment of Elizabeth Birkhead, as executrix, the presentation of the claim to her on behalf of plaintiff within four months after her appointment, and that she rejected it, after which suit was brought.

It was the claim of plaintiff that on July 27, 1955 Pird W. Birkhead, husband of Elizabeth Birkhead, was engaged in erecting a porch or stoop at the back of the house at 3849 Aberdeen Avenue, that in applying roofing material to said stoop, Pird W. Birkhead climbed upon and sat upon said stoop with his legs hanging over, that the porch or stoop collapsed falling twelve feet to the ground and striking plaintiff, inflicting severe injuries to his left hand. The petition specifically claimed that while Pird W. Birkhead was applying the roofing to the stoop he , “caused, permitted, allowed, the structure on which he was roofing to be precipitated down and onto the body and person of Frank Eldon Sowers, that at said time and place Pird A. Birkhead was in sole control of the structure * *

The petition contained a detailed description of the bones broken and the other injuries to the left hand of plaintiff, that he was hospitalized under medical care, incurred medical bills exceeding $800, will have future medical expense, has had surgery on two occasions and will be “handicapped permanently in the use of his left hand and that said hand will be disfigured. That the injury has caused him severe pain and shock * * As a result, plaintiff claimed damages in the amount of $20,000 against the two defendants.

The answer of the executrix, after certain formal admissions concerning her appointment as such, the presenting and rejecting of the claim and the filing of the suit, sets forth a general denial of other allegations of the petition.

The answer of Elizabeth Birkhead, as an individual, admits she was the owner of the undivided one-half interest in the premises at the rear of which plaintiff was injured, that the dwelling house was rented to the parents of plaintiff, after which is set forth a general denial of allegations not admitted to be true.

The matter was tried to a jury upon the evidence and a number of exhibits, after which the jury returned a verdict in favor of plaintiff and against the two defendants in the amount of $8,000.

Defendant complains of the general charge of the court, to the jury in its first assignment of error. One part of this assignment is that the court charged upon the subject of future as well as past pain and suffering. Defendant contended there was no allegation in the petition with reference to future pain and suffering. With this we cannot agree. The petition clearly alleges the need for future medical care, that there will be a permanent disfigurement of the hand and that there will be permanent handicap or impairment in the use of the hand. This objection is not well taken and is overruled.

Objection also is made to the charge of the court which authorized the jury to assess damages in favor of plaintiff for loss of earnings in the future, defendant arguing that plaintiff was only three years of age and that until he arrives at maturity or is emancipated, his earnings belong to his parents and cannot be recovered by him. We agree with this contention of defendant and this portion of the assignment of error is well taken and will be sustained.

The final portion of the first assignment of error relates to the use of the word, “may,” by the court in that part of its charge relating to alleged impairment of health “in so far as it may be impaired as a result of such injuries.” Defendant contends this permits the jury to speculate and to take into account mere possible injury. With this we do not agree and this objection will be overruled.

We shall consider the two remaining assignments of error together, the second objecting to the overruling for defendant’s motion for a new trial and the third complaining that the verdict is not sustained by sufficient competent evidence, is excessive and is contrary to law.

It was not alleged in the petition but was brought out in the evidence that during his lifetime Pird W. Birkhead was the husband of Elizabeth Birkhead. (Bill of Exceptions p. 13, line 18, p. 69, line 11 and p. 70, line 6.1

So far as the petition is concerned, the Birkheads were merely tenants in common and the sole reference to Mrs. Birkhead in the body of the petition is as follows: “and that Pird W. Birkhead and Elizabeth Birkhead were each owner of an undivided one-half interest in the' aforementioned premises * *

Sec. 3103.08 it. C., expressly relieves husband and wife from any duty to answer for the acts of the other. This section reads as follows:

“Neither husband nor wife, as such, is answerable for the acts of the other.”

Under the common law rule, until it was abrogated by statute, the husband could be made liable for the negligent acts of his wife. It has been held by the Supreme Court of Ohio that §8003 GC, predecessor of §3103.08 supra, R. C., abrogates the common law rule above referred to. We have never heard of any rule which makes the wife liable for the acts of the husband nor is it so contended here.

What then is the claim of plaintiff which makes the wife liable? It is crystal-clear that she herself took no steps whatsoever involving any element of negligence affecting this case. Was it master and servant, principal and agent, tenancy in common or what?

So far as we can learn the record is completely lacking in any allegation that Pird W. Birkhead had any authority whatever to act for or on behalf of his wife or that he was so doing or made any claim to such authority. Mere proof of the marital relationship is not sufficient to establish a husband’s agency for his wife. The rule is stated in 41 Corpus Juris Secundum 547, Husband and Wife, Section 70, as follows:

“Proof of the existence of the marital relation does not establish the husband’s agency for his wife, but the agency of the husband is a question of fact which may be proved by either direct or circumstantial evidence.”

The record here is completely silent, as is the petition, with reference to this question.

The authority just above cited states that the burden of proof in such a case is upon the one who claims such authority existed and the above text continues as follows at p. 547:

“Whether the husband was the agent of his wife is a question of fact to be found as any other fact. It is a fact to be proved by evidence, and not to be presumed. There is no presumption of law that the husband has authority to act on behalf of the wife.
“Burden of proof. ' In an action against the wife to hold her responsible for the act or contract of her husband, plaintiff has the burden of showing the agency and authority of the husband or a ratification by the wife.” (Emphasis added.)

In the case of the Royal Indemnity Co. v. McFaden et al., 65 Oh Ap 15, where an alleged compromise offer of the husband on behalf of his wife was in issue, it was held that actual proof of the authority of the husband was required and the mere relationship of husband and wife raised no inference of authority for the husband to speak for his wife.

Matthews, J., in the opinion in the Royal Indemnity Co. case, supra, at p. 19 wrote as follows:

“The plaintiff could only succeed on proof of actual authority. There had never been any prior similar transactions upon which to predicate’ a holding out, from which authority could be implied. This was the first transaction, and, for that reason, evidence of actual authority was essential.”

In 28 O. Jur. (2d) 229, Husband and Wife, §102, (B), Wife’s Responsibility for Acts of Husband, it is stated:

“The Code provides that a wife, as such, is not answerable for the acts of her husband. She is not bound by his acts in relation to her property unless he is her agent, * *

The same authority at p. 230, Husband’s Torts, §103, continues:

“Since a wife is not, as such, answerable for the acts of her husband, the marital relationship does not of itself impose upon the wife any liability for the torts of her husband. No liability is, in general, imposed upon a wife for the torts of her husband by the mere fact that they are committed in connection with or with reference to property of which she is the owner.” (Emphasis added.)

Cited in support thereof is the case of Marks v. Robins, 23 Abs 538, decided by the Seventh District Court of Appeals on January 5, 1936. (Motion to certify overruled March 3, 1937.) The first and third branches of the syllabus in the Marks’ case, supra, are as follows:

“1. The mere relationship of husband and wife does not impose upon the wife any liability for the torts of her husband.
“3. The mere relationship of husband and wife raises no presumption of agency.”

Again in 28 O. Jur. at p. 232, it is stated:

“The mere relationship of husband and wife does not impose upon the wife any liability for the negligence of her husband.”

The same authority at p. 233 says as follows:

“A husband is not, however, authorized in any manner to act for his wife simply because of the relationship of husband and wife. He has no inherent or original power to act as his wife’s agent, and in order to bind his wife by his acts, he must be expressly authorized by her appointment, or his acts must be subsequently ratified by her, or his authority must be implied or ostensible. There is no presumption of his authority to act for her, and his agency must be proved by evidence, as any other fact.” (Emphasis added.)

Coming now to the case of Elizabeth Birkhead, as an individual, it is our opinion for the reasons above set forth that the trial court erred (Record pp. 102 and 103) in charging that husband and wife were engaged in a joint enterprise, there being no allegation whatsoever of this fact in the petition and no evidence in the record upon the entire subject. Therefore, the court also erred in overruling the motion for a new trial so far as Elizabeth Birkhead, as an individual, was concerned, and further as to the last named defendant, the evidence was totally insufficient to sustain the verdict and was therefore contrary to law.

We therefore find the second and third assignments of error well taken so far as Elizabeth Birkhead, an individual, is concerned.

With respect to the liability of the decedent, Pird W. Birkhead, we feel that the negligence has been established and there was sufficient evidence to take the case to the jury but that the amount of damages awarded appears excessive in light of the evidence. However, it will not be necessary for us to take any action with reference thereto in light of our belief that a new trial will be necessary in the case of the decedent.

As to Elizabeth Birkhead, as an individual it is our order that the verdict and judgment be set aside and held for naught and final judgment entered in her favor.

As to Elizabeth Birkhead, as executrix, the judgment of the court below is reversed and set aside and the cause remanded for a new trial in accordance with the opinion in this case.

PETREE, PJ, MILLER, J, concur.


author: By DULL, J. (sitting by assignment).

text:
    SCHUMANN, Plaintiff, v. FISHER, Defendant.
    Common Pleas Court, Auglaize County.
    No. 14925.
    Decided June 16, 1958.
    James C. Blair, Lima, for plaintiff.
    A. A. Klipfel, Wapakoneta, for defendant.
    (DULL, J, of Mercer County sitting by assignment.)
   OPINION

By DULL, J. (sitting by assignment).

Defendant’s motion for a new trial was submitted to the court on the testimony of the twelve jurors in the second trial of the case and the memoranda of counsel.

Defendant’s motion contains three grounds:

“1: For irregularities in the proceedings of the jury by which this defendant was prevented from having a fair trial in this, to-wit:
The entire file in this case, including verdict and judgment for plaintiff in the former trial, was permitted to be taken by the jury into the jury room for their deliberations; the foreman admitted in the presence of the Court that the verdict in the former trial had been referred to in preparing the instant verdict; all papers so taken to the jury room have been impounded by the Clerk and are intact for the Court’s consideration on this Motion.
2. For misconduct of the prevailing party, the plaintiff herein, as follows:
At the time that the jury visited the scene of the accident, the plaintiff was seen to engage one of the jury in conversation when they were separate and apart from other persons at the scene. Further, between the time that the jury was empaneled, January 9th, and the time the trial began, January 13th, namely on Sunday, January 12th, the plaintiff was seen returning down the road leading from the vicinity of the residence of the juryman accosted by plaintiff aforesaid. Refer Affidavits attached. That these matters were not brought to the attention of counsel until following the trial.
3. The verdict is not sustained by sufficient evidence and is contrary to law.
And for other errors manifest from the face of the record.”

Testimony, however, was presented by counsel for the defendant only on the first ground, which falls in the general category of paragraph (A) of §2321.17 R. C. (New trial defined, causes for granting new trial.) And it is the only ground here considered.

This case was tried before a jury the first time on May 1, 1953, resulting in verdict for plaintiff in the amount of $840.00, nine jurors signing the verdict. On appeal, the cause was remanded to the trial court for re-trial because of error found in the proceedings of the first trial. The case was tried before a jury the second time on January 14, 1958, resulting in a unanimous verdict for the plaintiff in the amount of $1172.05.

The first question presented is: was the testimony of the jurors admissible?

Permitting the taking by the jury of the entire file of the case, including the verdict and judgment for the plaintiff in the former trial, into the jury room before their deliberation may well be considered as an unlawful communication from a person or persons outside the juryToom. Certainly it can be considered an improper and highly unfortunate communication. There is no allegation or accusation of misconduct on the part of any juror while the jury was deliberating or in reaching a verdict. “Affidavits or testimony of jurors may be received, upon motion for new trial, to prove unlawful communications made to members of the jury by court officers or others, outside the jury room but during the period of the jury’s deliberation.” Syllabus of Emmert v. State, 127 Oh St 235. Further: “While it is a well settled principle of the law of jury trials, that affidavits of jurors are inadmissible to impeach their verdict, the principle is equally well settled that jurors’ affidavits are admissible to sustain or support their verdict, when an attempt is made to impeach it by other testimony.” 39 O. Jur., Page 1116, Section 388. See also Farrer v. State, 2 Oh St 54, State v. Adams, 141 Oh St 423, State v. Joseph, 90 Oh Ap 427.

Finally, on this question: if the lack of evidence aliunde be the stumbling block to the admissibility of the testimony of the jurors, it was certainly supplied when the foreman of the jury came out of the jury room and took his place in the jury box carrying in his hand the entire file of the case, including the verdict and judgment for the plaintiff in the former trial. The file could be seen by everyone in the court room at the time. And seen it was, especially by the court and counsel.

Therefore it is the considered opinion of the trial court that on the motion for a new trial the testimony of the jurors was admissible.

The second and pivotal quéstion presented is: Does the testimony of the jurors justify the sustaining of the motion for a new trial?

At the hearing on the motion for a new trial, there was no evidence presented which tended to prove or even imply that the taking by the jury of the entire file of the case, including the verdict and judgment for the plaintiff in the former trial, into the jury room before their deliberation represented misconduct on the part of anyone. Although, it may have been the fault of many, the blame cannot be directly laid at the door of any one person. The file of the case simply came into the hands of the jury inadvertently. Again: improper and unfortunate, but true.

Further, at the hearing on the motion for a new trial, eleven members of the jury including the foreman, testified that they either (1) never saw the papers of the former trial, which included the verdict and judgment for the plaintiff, during the entire time of their deliberation including the reaching of the verdict and its amount or (2) they did not see the papers of the former trial until after they had reached the. verdict and its amount. Hence, the presence of the papers of the former trial in the jury room could not have influenced these eleven members in the reaching of the verdict and its amount. The twelfth juror testified that the papers of the former trial were looked at during the deliberations of the jury and prior to the reaching the verdict and its amount. However, she further testified that the presence of these papers in no way influenced her in the reaching of the verdict or its amount.

The testimony further revealed that, again through regrettable inadvertence, no forms of verdict were supplied to the jury when the members went into the jury room to begin their deliberations. Then when the verdict and its amount had been reached some of the members of the jury started going through the papers of the former trial in an effort to find the form for their verdict and its amount. After they failed to find such a form for their verdict and its amount, they made inquiry of the court officers for verdict forms and the forms were supplied to the jury.

There is some conflict, particularly in the early Ohio law, relative to this question of whether or not a new trial should be granted when the jury had before them during their deliberations matters not in evidence.

“When a jury, of their own motion, and by their own means, without the knowledge of the court, and without the presence, knowledge, or consent of the prisoner, obtain a part of a newspaper, purporting to contain a part of the charge of the court in the case they are considering, and use said information to guide their deliberations, although the charge thus published, may happen to be accurate, the verdict ought to be set aside.” Syllabus of Farrer v. State (1853), Supra. It may be noted that in this case the jury used the matter not in evidence in their deliberations, which was not the fact in the present case.
“ — but if depositions or other instruments disclosing facts important for one party, which the court does not permit to be read in evidence, are taken by the jury into their room, and are before them when they deliberate upon and find their verdict, a new trial should be granted, even though it is difficult to say what degree of influence such paper may have had upon the jury — .” 30 O. Jur., page 95, Section 58. Bronson v. Metcalf (1855) 1 Disney 21, 12 Ohio Decisions Reprints 462. Again, it may be noted that in this case, too, the matter not in evidence was before the jury when they were deliberating upon and finding their verdict, which was not a fact in the present case.

There is a late Ohio Appeals case (decided March 20, 1956) which

There is a late Ohio Appeals case (decided March 20, 1956, 76 Abs 590, 103 Oh Ap 468) which is in accord with this view that a new trial should be granted when the jury had before them during their deliberations matters not in evidence. “A communication to the jury in the form of an exhibit which had been refused admission into evidence, in which communication the word ‘insurance’ was used and which exhibit inadvertently was before the jury, was prejudicial error.” Syllabus of Chiesa v. Thomas, 2 O. O. 2d 456. There is no explanation or precedent given for this holding in the body of the opinion.

However: “A new trial will not be granted because a paper containing a computation of interest on certain sums claimed by the plaintiff, went to the jury with the papers in the case, when it does not appear by whom it was given to the jury, and no fraudulent intent or effort to practice on them is shown, although no leave was given to put the paper into the hands of the jury, and the court refused to admit testimony to prove the correctness of the calculation.” Syllabus of Administratrix of Tracy v. Administrator of Card (1853) 2 Oh St 431. See also Neff v. Cincinnati (1877), 32 Oh St 215. Here, as in the case before the court, the matter not in evidence was inadvertently before the jury and there was no fraudulent intent shown.

Further, “A judgment will not be reversed for permitting papers not in the case to be taken by the jury in their retirement, where it could not have prejudiced the party.” Jaspers v. Mallon (1884), 9 Ohio Decisions Reprints 184. The testimony of the jurors in the case before the court showed that neither party was prejudiced by the presence before the jury of matters not in evidence.

But: “Reading of newspaper articles by jurors, prejudicial to one litigant, is cause for a new trial, but to make such ground available there must be evidence that articles came to jury’s attention and court was requested to withdraw a juror and continue the cause.” Syllabus of Phillips v. Board of Education (1924), 21 Oh Ap 194. This case it cited because in the present case the testimony of eleven of the twelve jurors revealed that the matter not in evidence before the jury was not called to their attention until after the verdict and its amount had been reached.

“It is generally ground for a new trial that the jury, in arriving at their verdict, took, or there were sent, to the jury room and considered, without the knowledge and consent of the parties or counsel, depositions which were not in evidence, or other documents or papers not in evidence and of a character that might have influenced, and probably did influence, the verdict; and this is especially true where the documents or papers were given to the jury by the successful party or his attorney or had been offered in evidence and rejected. If papers improperly considered by a jury were material or fitted to prejudice the unsuccessful party, a new trial should be granted although the successful party was not at fault; and the actual measure of influence of such papers will not be inquired into. If papers not in evidence were intentionally given to the jury by a party, the court will not inquire into the importance or materiality of such papers or whether they were read by the jury. If the papers were not furnished by a party and were not read by the jury, a new trial should be denied.” 66 Corpus Juris Secundum, page 181, NEW TRIAL, Section 58, d, (1). In the present case the matter not in evidence was before the jury inadvertently and the testimony of eleven of the twelve jurors revealed that the matter was not read or considered until after the verdict and its amount had been reached.

Further: “It is a ground for new trial for any paper or writing which has not been properly admitted in evidence, and which is calculated to prejudice or influence the jury against any of the parties, to go to the jury, unless it appears that the paper was not read or considered by the jury. Generally there is no ground for new trial when the documents are not used or handled by the jurors, or where they were not read until after they had concluded their deliberations and decided upon their verdict. And according to some courts, a new trial is not required in the absence of proof that the jury read the contents of such a document which was taken improperly into the jury room through accident or inadvertence, although according to the view of other courts, there is a presumption that a paper improperly taken into a jury room was read wholly or in part by the jury. If it appears that the objectionable paper was not read by the jury, it is the same as though it had not been delivered to them.” 39 American Jurisprudence, pages 98 and 99, NEW TRIAL, Section 84. The trial court is of the opinion that it is better for this citation to speak for itself.

Therefore, it is the considered opinion of the trial court that the motion of the defendant for a new trial as based on the first ground should be overruled because:

(1) The fact that the entire file of the case including the verdict and judgment for the plaintiff in the former trial, reached the jury room before their deliberation inadvertently;

(2) The fact that the testimony of eleven of the twelve jurors showed that they never saw the papers of the former trial during the entire time of their deliberation including the reaching of the verdict and its amount or they did not see the papers until after they had reached the verdict and its amount, thus precluding the possibility of the papers of having any influence on their verdict or its amount;

(3) The fact that the testimony of the twelfth juror revealed that although the papers were looked at during the deliberation they did not influence her in the reaching of the verdict or its amount;

(4) The greater weight of authority in Ohio and other jurisdictions where the fact situations were somewhat similar to that of the present case.


author: By KINDER, J.

text:
    IRELAND, Exr., Plaintiff, v. CLEVELAND TRUST COMPANY and JAMES DUANE IRELAND, Co-Trustees et, Defendants.
    Probate Court, Cuyahoga County.
    No. 561892.
    Decided October 15, 1958.
    Harold O. Ziegler, Cleveland, for plaintiff executor.
    Jones, Day, Cockley & Reavis, Cleveland, for The Cleveland Trust Company et al.

      Lawrence G. Knecht, Cleveland, for and Guardian ad Litem for the Minor Beneficiaries and Trustee for Suit of Lineal Descendants.
    William Saxbe, Atty. Geni., Neva H. Wertz, Asst. Atty. Geni., Columbus, for William Saxbe, Attorney General.
   OPINION

By KINDER, J.

In this action the executor seeks by way of declaratory judgment an interpretation of §2107.06 R. C., which invalidates under certain conditions gifts, devises or bequests for charitable purposes, contained in a will where the testatrix dies within a year of the date of execution thereof. The question arises on the expressed willingness of the sole heir-at-law, who is the direct descendant of the testatrix and the residuary legatee under the will, to commit himself to waive the benefits of this statute if, under its provisions, such waiver or disclaimer shall be legally effective.

The case is unusual in that it calls for an interpretation of §2107.06 R. C., purporting to invalidate charitable bequests where the testatrix dies within a year of the execution of the will involved, in the face of the expressed willingness of the sole heir-at-law, James Duane Ireland, to waive his rights thereunder. Such rights involve a fund of approximately $1,500,000.00 estimated to produce an income of $100,000.00 a year to the charitable- organization involved. The charitable organization is the “Elizabeth Ring Mather and William Gwinn Mather Fund.” The purposes of the Fund, incorporated in 1954, are to authorize gifts and distribution of monies to a very wide range of charitable, religious, educational and community activities.

The sole heir-at-law and residuary beneficiary, James Duane Ireland, has executed and tendered a- form of such waiver and disclaimer which in substance is unqualified and irrevocable.

The cause has been submitted upon a record which includes a copy of the will in question, together with such other documents as were considered material with respect to the intent of the testatrix and the means employed by her to give effect to such intent, and this particularly with reference to the identity and scope of the charitable purposes which are the subject matter of the bequests contained in the instant and likewise in a prior will. This record also contains the testimony of James Duane Ireland, the sole heir-at-law and residuary beneficiary, which testimony is descriptive of the testatrix’s charitable plans and his own willingness to waive any right or rights which he as sole heir-at-law and residuary beneficiary would, in the premises, have under the statute in question.

The jurisdiction of this Court to make a determination of the effect of Ireland’s waiver is clear, notwithstanding the fact that the waiver has not actually been filed. The Probate Court has jurisdiction under §2101.24 (L) R. C., to render declaratory judgments. In a declaratory judgment case, the Supreme Court has approved the making of a determination regarding the legal effect of certain facts which had not yet occurred but were imminent. Sessions, Trustee v. Skelton, 163 Oh St 409. It will be required that the waiver by Ireland be filed contemporaneously with the decree in this case.

It seems , quite clear that §2107.06 R. C., as construed by the courts of this State permits and authorizes a waiver by the persons or classes named therein of the benefits thereby created with the consequent validation of such gifts, devises or bequests of a charitable nature as are contained in the will under consideration.

That this interpretation of the statute under consideration and the conclusion herein reached is correct, results from Thomas v. The Trustees of Ohio State University, 70 Oh St 92. Deeds v. Deeds, 58 Abs 129. Estate of Dudley S. Blossom, 45 B. T. A. 691. A similar result and conclusion has been reached in other states where statutory provision similar to §2107.06 R. C., is in effect. Trustees of Amherst College v. Ritch, 45 N. E. 876 (N. Y.). In re Hills, 191 N. E. 12 (N. Y.) See also 154 A. L. R. 682. In Scott on Trusts, Section 362.4, the rule is stated as follows:

“Where the statute, whether requiring that the will making gifts to charity be executed more than a certain time prior to the testator’s death or limiting the. amount of the testator’s estate which can be given to charity, is applicable only where the testator leaves certain near relatives, the question arises as to a waiver by such relatives. Clearly enough if they all join in such waiver after the death of the testator, the charitable disposition is valid, since the restriction is imposed only for their benefit.” (p. 2602.)

Kirkbride v. Hickok, 155 Oh St 293 to which reference has been made is, upon analysis, not to the contrary. There the descendants sought the benefit of the statute and the Court held there was no waiver.

That the right of waiver under this statute thus interpreted rests in James Duane Ireland, to the exclusion of other persons named in the statute, seems clear. Ireland is the sole heir-at-law of the testatrix and while the question of whether the protection of the statute applies only to the first living generation of descendants or to all succeeding generations has not been considered in this State in any reported decision, it seems to the Court that giving the language and phraseology of the statute its usual meaning, including the use of the word “or” between the words “issue” and “lineal descendants,” requires a conclusion that Ireland qualifies as the only person in the protected class who could waive the benefits and protection of the statute as hereinabove interpreted. Such conclusion seems justified by the interpretation recently given the statute of descent and distribution, which is similarly phrased. Sec. 2105.06 R. C. Kraemer v. Hook, 168 Oh St 221. This is the conclusion reached under a New York statute similar to the Ohio statute under consideration and differing only in matters not here material. In re Plaster’s Estate, 37 N. Y. S. (2nd) 498.

A decree may be entered accordingly.