author: By McNAMEE, J:

text:
    HODGE DRIVE IT YOURSELF INC., Plaintiff-Appellant, v. CINCINNATI GAS & ELECTRIC COMPANY, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7288.
    Decided November 6, 1950.
    Burke & Cooney, Gordon-Wilson, Cincinnati, for plaintiff-appellant.
    Peck, Shaffer & Williams, Andrew J. Conroy, Cincinnati, for defendant-appellee.
    (DOYLE, PJ, of the Ninth District: McNAMEE, J, HURD, J, of the Eighth District sitting by designation.)
   OPINION

By McNAMEE, J:

The plaintiff, Hodge Drive It Yourself, Inc., seeks a reversal of a judgment entered in the Common Pleas Court of Hamilton County upon a verdict of the jury in favor of defendant, The Cincinnati Gas & Electric Company.

This action arose out of an explosion which occurred on July 15, 1942, at about 11:25 P. M., in a building located at 511 Sycamore Street, Cincinnati, Ohio, which was occupied exclusively by the plaintiff as Lessee. The building was three stories in height and of reinforced concrete 'construction. The explosion was of such tremendous force that it drove the two elevators to the top of the building, knocked out the pent house located at the top of the shafts and caused the reinforced concrete floors which were six inches thick, to be blown upwards; the steel reinforced rods in the sidewalk were broken loose at the building line and the sidewalk was brought upward and outward into the street. Five persons who were in and about the building at the time were killed. Four of them were dead at the time their bodies were found and the fifth victim survived for a period of about twenty-four hours. Personal property of the plaintiff located in the building was damaged to the extent of more than $26,000.00.

Suit was brought to recover this damage which plaintiff claims was caused by the negligence of defendant in permitting large quantities of gas to escape from its mains and service pipes into the building.

Defendant denied the allegations of negligence and upon trial offered evidence tending to show that the explosion was not caused by escaping gas but was the result of the ignition of vaporized gasoline which had leaked into the basement from a gasoline dispensing unit maintained by plaintiff on the ground, floor of the building. The point of the explosion was in the basement under the sidewalk.

Plaintiff’s principal assignments of error relate to its claims that the trial court erred in the admission of evidence offered by the defendant as part of the res gestae, and in the rejection of rebuttal testimony offered by plaintiff under the same doctrine.

The trial court admitted, as part of the res gestae testimony of witnesses for the defendant, statements made by two persons who died as a result of the explosion. One of such persons, the declarant, Bass, was killed instantly and his statement received in evidence was made immediately before the explosion occurred. The other declarant, Bottorf, survived the explosion for about twenty-four hours and his statement to the witness, Schaefer, also received as part of the res gestae was made between eight or ten minutes after the explosion. The trial court rejected that part of the testimony of plaintiff’s rebuttal witness, Officer Pogendick, which related to statements allegedly made by Bottorf a few minutes after the declarant’s statements to the defendant’s witness, Schaefer. The voluminous record of the trial contains much factual and opinion evidence in support of the conflicting claims on either side of the crucial issue, whether the explosion was caused by escaping gas or resulted from vaporized gasoline. However, reference will be made herein only to those evidential facts that form the context of the declarations admitted by the trial court as part of the res gestae and illustrate the circumstances under which the declarations proffered in rebuttal thereof were made.

At 11:22 on the night of July 15, 1942, the Fire Department of Cincinnati received a telephone complaint involving a condition at plaintiff’s building. The fireman who received this call, relayed it to the police broadcasting station from which a police cruiser was dispatched to the Hodge Drive It Yourself building. In the police cruiser were Sergeant Hille and Officer Kasselman. As the cruiser approached plaintiff’s building it traveled northerly on Sycamore Street to a point immediately north of the building where it was turned in a westerly direction over the sidewalk to the entrance of a parking lot. As the cruiser came upon the west sidewalk of Sycamore Street immediately north of plaintiff’s building, Bass who had been in the building, approached the cruiser and spoke to the police officers. Immediately thereafter Sergeant Hille left the cruiser and accompanied Bass on foot to the entrance of the building about twenty feet away. Officer Kasselman who remained in the cruiser started to back into the street intending to park in front of the building. As Sergeant Hille and Bass reached the entrance to the building, and Kasselman was backing the cruiser into the street, the explosion occurred. Sergeant Hille’s body was catapulted over a four-story building on the opposite side of Sycamore Street. He was killed instantly as was Bass, whose body was found in the school yard on the east side of Sycamore Street. Officer Kasselman was unhurt and appeared as a witness for the defendant.

The court permitted Kasselman to testify that as Bass came to the police cruiser a few moments before the explosion, he said “He was the one who called.” The remainder of Bass’s statements as reported by Kasselman is that:—

“He told us there was gasoline leaking in the basement in the garage and he says ‘there might be a fire.’ ”

Schaefer who also appeared as a witness on behalf of defendant, testified that he was a pharmacist of long experience; that on the night in question he was returning home on a bus from his place of employment and when the bus reached the corner of Main and Fifth Streets which is one block north of Sycamore and Fifth Streets, the explosion occurred throwing the passengers on the bus into a state of panic; that the driver of the bus opened the doors; that Schaefer then ran east on Fifth Street to the corner of Sycamore Street where he came upon a man lying in the gutter. Schaefer described the man as having no clothes on excepting his belt and “a strip of clothing around his waist.” The hair on his head and his eyebrows were blown off. His body was covered with a white coating of concrete powder and he had a severe cut on one of his legs. According to Schaefer, the man tried to rise and asked the witness to call his folks and tell them what happened. He gave his name as Kenneth Bottorf. Schaeffer stated that he administered first aid to Bottorf and bandaged his leg and that a bystander wrote Bottorf’s name and address with a pencil given to him by Schaefer. In response to Schaefer’s question, “What happened?” Bottorf said:

“That he was returning his car which he had rented and somebody was backing a truck or machine in there and had knocked the pump over and there was gasoline leaking someplace around there and then the whole thing let go.”

Schaefer estimated that about three minutes elapsed from the time he heard the explosion until his arrival at the place where he found Bottorf lying in the gutter and that about five minutes or more elapsed after that before the above quoted statement was made.

Before the reception of Bottorf’s statement, the trial court and counsel examined Schaefer at length in the absence of the jury. The record discloses that the trial judge made a careful, exhaustive and painstaking effort to ascertain all of the circumstances under which this statement of Bottorf was made. Bottorf was taken to a hospital and upon arrival there about 11:38 P. M., was found to be in a state of shock. Except for the opinion evidence of the witnesses who arrived on the scene after the explosion, the statement of Bottorf as testified to by Schaefer is the only evidence that indicated that the gasoline dispensing unit was damaged prior to the explosion. It also tends to elucidate and explain the statement of Bass made immediately before the explosion.

In rebuttal, plaintiff offered Officer Pogendick as a witness. He testified that he and Officer Wehberg arrived at the corner of Sycamore and Fifth Streets, in a police ambulance, a short time after the explosion; that they put Bottorf upon a stretcher and placed him in the ambulance; immediately thereafter the two officers crossed the street, obtained the body of Bass which was also placed in the Ambulance; as the ambulance started for the hospital Bottorf said to the witness, Pogendick, who was in the back of the ambulance. “What happened? Where is my buddy?” Whereupon Pogendick said to Bottorf “What happened?” Bottorf responded, “I don’t know.” The statements of Bottorf as made to Pogendick on the way to the hospital were excluded by the trial court but proffered by plaintiff in rebuttal of testimony given by Schaefer.

The term ‘res gestae’ as presently employed in legal terminology describes a doctrine of the law of evidence that includes those exceptions to the rule against hearsay not otherwise classified which relate to declarations or acts concomitant to the fact at issue and which tend to illustrate or explain it. Perhaps on no other doctrine of procedural law have text writers and legal commentators written so profusely and so critically. Almost without exception they inveigh against the judicial practice of including within the broad and ill-defined outlines of the term ‘res gestae’ those exceptions to the hearsay rule that rest upon other principles capable of exact and accurate definition.

Professor Wigmore denounces the practice in the following-vigorous language:

“The phrase ‘res gestae’ has long been not only entirely useless, but even positively harmful. It is useless, because every rule of Evidence to which it has ever been applied exists as a part of some other well established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought, therefore, wholly to be repudiated as a vicious element in our legal phraseology. No rule of Evidence can be created or applied by the mere muttering of a shibboleth. Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.” Wigmore on Evidence, 3rd Edition, Vol. 6 page 182, Sec. 1767.

Jones in his Commentaries on Evidence, (2d Ed) Vol. 3 page 2187, Sec. 1193, voices the same criticism in more moderate terms. He says: -

“The subject of this chapter is one which has always been regarded as peculiarly vague, and the very haze in which it is enveloped has proved self-multiplying to such an extent that some authors see fit to avoid almost entirely the use of the term ‘res gestae’ and to disregard the language of courts which cling thereto by reclassifying all such matter under various exceptions to the hearsay rule.”

The phrase “res gestae” meaning “things done” was originally employed in cases admitting verbal acts as exceptions to the hearsay rule. Its extension to include spontaneous utterances before and after the primary fact was accomplished with little regard for exactness or preciseness of definition. In the literature of decided cases the phrase has attained a significance that embraces a wide variety of acts and declarations occurring contemporaneously with or before or after the principal event to which they relate. As noted by the court in Landeau v. Travelers Ins. Co. 267 S. W. 376:

“Res gestae is a term of protean significance.”

The strictures of commentators against the ill-considered use of the phrase do ¡ not extend to their finding fault with the actions taken by the courts. It is conceded that while “loose thinking” has impelled resort to this phrase to describe principles that ought; more precisely to be defined, the decisions made on the admissibility of evidence generally have been sound. The broad compass of the doctrine as now understood is outlined by Wharton as quoted in Jones’ Commentaries supra, page 2189, as follows:

“Those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of anyone concerned, whether participants or bystanders; they may comprise things left undone-as well as things done. Their sole distinguishing feature is, that they should be the necessary incidents of the litigated act; necessary in this sense that they are part of the immediate preparations for or emanations of such act, and are not produced by the calculated policy of the actors. In other words, they must stand in immediate causal relation to the act — a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.”

Under the doctrine of res gestae as thus defined, we have little difficulty in determining that the statement of Bass añade to the police officers immediately before the explosion was properly received in evidence. This is true whether the statement be considered as a verbal act imparting color and significance to the actions of Bass and Sergeant Hille, or whether it be received as a spontaneous declaration made under the influence of impending danger. The declaration of Bass was almost synchronous with the explosion. It may be inferred fairly that less than a minute elapsed from the time of his statement to the police officers until Bass and Sergeant Hille reached the entrance to the building which was about twenty feet away. Bass’ statement was not a narrative of a past transaction but was an urgent report of an existing condition and a forecast of possible disaster. It was made to police officers who had been sent to investigate a complaint. Both the content of the statement and the circumstance of its utterance bespeak the declarant’s apprehension and fear and his disinterested purpose to prevent the threatened danger. The declaration was “immediately and unconsciously” associated with the primary fact.

In a case where the circumstances were less potent in their influence upon the mind of the declarant, the Supreme Court of Ohio held that a complaint made before the primary fact at issue and out of the presence and hearing of the plaintiff was properly admissible as part of the res gestae. United Power Co. v. Matheny, 81 Oh St 204. In that case the plaintiff sought to recover damages for his alleged wrongful ejectment from one of the defendant’s street cars. As bearing upon the motive of the conductor in ejecting the plaintiff, the defendant offered evidence of statements made by other passengers who left the street car before plaintiff was ejected and which referred to plaintiff’s alleged offensive conduct. The trial court refused to admit this evidence but the Supreme Court held that the complaints made to the conductor by other passengers were part of the res gestae and that it was prejudicial error on the part of the trial court to exclude them.

Other cases decided by the Supreme Court holding that statements made before the principal event were part of the res gestae are L. S. & M. S. R. R. v. Herrick, 49 Oh St 25; Outland v. Industrial Commission, 136 Oh St 488.

The determination whether Bottorf’s statement to Schaefer was admissible is governed by the principle applicable to spontaneous statements and declarations. The general principle which governs this exception is outlined by Jones in Vol. 3 (2d. Ed.) pages 2207 and 2208:

“The present attitude of the courts, it may be said, is to regard primarily the circumstances. Although it appears that the particular declarations, exclamations or statements were made after the occurrence in question, if it also appears that the principal occurrence was such as would be likely to cause more than passing mental effect and that the conduct of declarant was such as to show that its effect still continued as to him, and the declaration is relevant and relates to the occurrence, it is admissible.”

The rule is more elaborately stated by Wigmore on Evidence at page 135, Vol. 6 (3rd Ed.) Sec. 1747:

“This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness) and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts.”

The earlier cases applied the principle that a spontaneous utterance to be admissible must be contemporaneous with the principal event. This requirement has long since been abandoned by courts in all jurisdictions including Ohio. In State v. Lasecki, 90 Oh St 10, it was held that the limits of the doctrine of res gestae as applied to exclamations is not to be determined by the strict meaning of the word “contemporaneous” but by the “causal, logical and psychological relation to such exclamation with the primary facts in controversy.” See also: N. Y. C. & St. L. Ry. v. Kovatch 120 Oh St 533. This rule as to exclamations has been made applicable to spontaneous declarations and statements made subsequent to the primary fact. Bake v. Industrial Comm. 135 Oh St 627; Stough v. Industrial Comm. 142 Oh St 446. The first paragraph of the syllabus of the Stough case reads:

“1. A declaration or statement to be admissible as part of the res gestae is not required to be exactly simultaneous with the primary fact in controversy, but it must be a spontaneous or an impulsive declaration or statement and not the mere narration of a past transaction.”

In the opinion in the Stough case, the last above quoted statement from Wigmore is cited with approval. It may be assumed, therefore, that the principle that governs as to the admissibility of spontaneous utterances in other jurisdictions is applicable in Ohio. Applying this principle we hold that the statement of Bottorf to Schaefer was properly received in evidence.

Bottorf’s declaration was made several minutes after the explosion but it is difficult to envisage a situation in which a declarant suffered a more serious or devastating shock to his nervous and physical system. The terrific force that destroyed the concrete building, stripped Bottorf of his clothing; removed the hair from his head and eyebrows; injured him in the leg and completely destroyed the normal functioning of his mental faculties. Instinctively he attempted to inform his family of the tragedy that had befallen him. As he was dissuaded in his feeble efforts to accomplish this purpose and was asked “what happened?” he impulsively made the statement of events that preceded the explosion. While the statement is narrative in form, it cannot be considered as a dispassionate utterance made as the result of “reasoned reflection.” The circumstances under which Bottorf’s statement was made, present a case where the mental effect of the shock of the explosion upon declarant was both serious and continuing. Under the circumstances of its utterance the reliability and trustworthiness of the statement is assured. It meets every test of the admissibility of spontaneous declarations.

There remains for consideration the question whether the trial court erred in rejecting the proffered testimony of Officer Pogendick which was offered in rebuttal of Schaefer’s testimony in respect of Bottorf’s statement.

Plaintiff concedes that the answer of Bottorf to Pogendick’s question “what happened?” is probably not admissible. Plaintiff, however, insists that Bottorf’s exclamations “What happened? Where is my buddy?” were spontaneous and ought to have been received as tending to refute Schaefer’s testimony that Bottorf had previously recounted the events he observd immediately prior to the explosion.

While it is arguable that Bottorf’s exclamations in the presence of Officer Pogendick were the spontaneous utterances of a man in a severe state of shock, they do not tend to explain the primary fact at issue and thus lack that quality of illustration which is essential to any declaration admissible under the doctrine of res gestae. Manifestly these statements were inadmissible as evidence in chief on behalf of the plaintiff. To hold them admissible as evidence in rebuttal of a statement made a few minutes earlier by the same declarant would be to approve the novel proposition that hearsay evidence may be received to rebut testimony which was admitted under a recognized exception to the hearsay rule. This we cannot do.

Further, in view of Bottorf’s tragically weakened condition and his fast ebbing vitality, it cannot be said that his later utterances to Officer Pogendick were necessarily inconsistent with the earlier statement made to Schaefer.

We do not find that the judgment is against the manifest weight of the evidence, nor do we find any prejudice resulting to the plaintiff by reason of the other assignments of error.

For the reasons hereinabove assigned the judgment of the Common Pleas Court is affirmed. Exceptions noted.

DOYLE, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    KING et, Plaintiffs-Appellees, v. JAMES et, Defendants-Appellants.
    Ohio Appeals, Second District, Greene County.
    No. 515.
    Decided September 15, 1950.
    Miller & Finney, Xenia, for plaihtiffs-appellees.
    Pickrel, Schaeffer & Ebeling, Dayton, Wead & Aultman, Xenia, for defendants-appellants.
   OPINION

By THE COURT:

This is an appeal on law and fact from the judgment of the Common Pleas Court of Greene County, Ohio, which issued a permanent injunction prohibiting the operation of a drive-in theatre.

The case has been submitted to this Court on the record taken in the trial court.

The record shows that the appellant, Paul James, in 1943 purchased a sixty-one acre farm on the east side of the old Springfield Pike and about three-quarters of a mile north of Xenia, Ohio. This farm was situated in an agricultural area. On this farm James built a stock barn, part of it being used for living quarters. James was in the business of raising and training young horses. He laid out a cinder exercise tract on the low ground which bordered on the pike. In 1944 James filed for record a plat containing eight lots fronting on the pike and on a high, wooded area south of the cinder track. This plat contains restrictions as to use of the property, the object being to permit said lots to be used only for residential purposes. Several of the plaintiffs are either purchasers of said lots, or derive title from the original purchasers of said lots. In 1945 James laid out four more lots immediately to the rear of Lots 1, 2, 3 and 4.

The last four lots were sold without restrictions upon the request of the purchasers. One of the purchasers expressed the desire to use the rear lot for purposes other than residential. Later in 1945 James sold to one of the plaintiffs, without restrictions, a tract of land which lies between the platted lots and the low ground - upon which the cinder track was situated, and at about the same time sold, without restrictions, to one of the plaintiffs a five-acre tract which lies immediately east of the 12-acre tract in question, with an easement over the 12-acre tract for ingress and egress and for utility purposes. In February, 1950, James sold a small tract immediately to the rear of Lots 6 and 7 of the original plat, the conveyance containing a restrictive covenant limiting the use of the property to residential purposes. On March 9, 1950, James leased the 12-acre tract on which was situated the cinder track to the Sundown Cruise-in theatre. James reserved the right to exercise horses on the cinder track. The lease makes no mention of other land sold off the original 61-acre tract, or any restrictions applicable to the lots or tracts already sold. The record shows that James did not inform the lessee concerning the previous sale of lots and tracts and restrictions applicable thereto; neither did the lessee inquire, nor was it otherwise informed as to the previous sales of lots and tracts and applicable restrictions. Consequently, the appellant corporation did not have constructive notice through the chain of title, neither did it have actual notice of any restrictions on lots and tracts.

Several days after the lease was executed Williams and Pratt, officials of the Sundown Cruise-In, Inc., staked out the ramps and began pouring concrete for the footings for the structures. At this stage of operations the action for injunctive relief was instituted. Trial began on April 20, 1950, and the decision of the trial judge was announced on June 21, 1950. Upon request the trial court rendered a separate findings of fact and conclusions of law on July 3, 1950. On the same day the final decree was entered. At the time of trial, and on the day the final decree .was entered, the theatre had not been operated. During the progress of the case in the trial court the appellant corporation was permitted to continue with the construction of the theatre, since no temporary injunction was sought nor issued.

Notice of appeal was filed on July 5, 1950, at which time the theatre was ready for operation and under an order of this Court the appellant corporation was permitted to operate the theatre pending the disposition of the appeal in this Court.

The trial court held that the operation of the theatre would constitute a nuisance and that there was an implied covenant binding upon James not to use the 12-acre tract for purposes other than residential.

We are convinced, and apparently it is now conceded, that a drive-in theatre is not a nuisance per se. Vol. 30 O. Jur., pp. 356, 382; Vol. 52 Am. Jur., page 288 to 290. It may become so by the manner of operation. There, is no evidence before the Court as to the manner of operation of the theatre by appellant corporation. Evidence was introduced in the trial court to show the manner of operation of other drive-in theatres. In view of the fact that a drive-in theatre is not a nuisance per se we cannot consider this evidence in determining whether the appellant corporation would conduct a nuisance. This case being tried de novo, evidence could have been presented to show the manner of operation of the theatre by the appellant corporation during the pendency of the appeal in this Court. No effort was made to do so.

It is clear from the record that James had never adopted a general plan or scheme of uniform restrictions whereby the entire 61-acre tract was restricted to use for residential purposes. The principle of law controlling in that class of cases is not applicable here. James was not bound, either in law or equity, to restrict the use of the 12-acre tract to residential purposes under the principle applied in Carmichael v. Paul, 18 C. C. N. S. 259; Wallace v. Clifton Land Company, 92 Oh St 349, 110 N. E. 940; Adams v. Donovan, 97 Oh St 83, 119 N. E. 252.

The lessee was under no legal duty to search the record of other properties adjacent to the 12-acre tract on which it took a lease. Kiley v. Hall, 96 Oh St 374, 117 N. E. 359. Furthermore, James was under no obligation to inform the lessee with reference to restrictions contained in conveyances of lots and tracts previously sold.

But it is contended by the appellee that the land retained by James, particularly the 12-acre tract leased to the appellant corporation, was subject to a reciprocal negative easement. This doctrine is to the effect that where the owner sells a portion of a tract, or lots, the conveyances containing restrictive covenants which would be beneficial to the land retained by the owner, the servitude becomes mutual, and during the period of restraint the owner of the lot or tract retained can do nothing forbidden to the owner of the lot or tract sold. In support of this doctrine appellees cite two cases, Sanborn v. McLean, 233 Mich. 227, 206 N. W. 496, and LaFetra v. Beveridge, 124 N. J. Eq. 24, 199 A. 70. The Sanborn case involved a plat of 91 lots, restrictions being placed on 53 lots on the plat. The court found that the common owners of all the lots followed a general plan limiting the use of the lots for residential purposes. The same court later, in Denhardt v. DeRoo, 295 Mich. 223, 294 N. W. 163, found this fact to be essential in order to establish a reciprocal negative easement. The factual situation in. the case at bar does not support a finding that James, the common owner, adopted or followed a general scheme •or plan of imposing uniform restrictions. In the LaFetra case the court found that there was a neighborhood plan or scheme of development which was followed. The Court held that there was an implied covenant binding on the common owners to restrict the use of the land retained. This doctrine has never been applied in Ohio. The rationale of the decisions in Ohio run counter to the application of this doctrine. Kiley v. Hall, supra; Adams v. Donovan, supra; Hunt v. Held, 90 Oh St 280, 107 N. E. 765; Smith v. Volk, 85 Oh Ap 347, 86 N. E. (2d) 30; Grant v. Hickok Oil Co., 84 Oh Ap 509, 87 N. E. (2d) 708; Edwards v. Trailer Park, 84 Oh Ap 518, 88 N. E. (2d) 187; Olmsted v. Schrembs, 30 Oh Ap 430, 165 N. E. 51; Blum v. Hodapp, 55 Abs 203.

The doctrine of reciprocal negative easement has been rejected in other states. For reference, see McCusker v. Goode, 185 Mass. 607; Kuhn v. Saum, 316 Mo. 810; Beetchenow v. Arter, 45 R. I. 133; Bondurant v. Paducah Ry. Co. 186 Ky. 794; Kessler v. School District, 346 Pa. 305; Wing v. Forest Lawn Cemetery Assn., 15 Cal. (2d) 472; Bristol v. Woodward, 251 N. Y. 275; Bibney v. Stockdale Corp., 20 Del. Chanc. Rep. 272.

The injunctive relief sought by the plaintiffs-appellees will be denied on the ground that there is no showing that the operation of the theatre is a nuisance and that the 12-acre tract leased to the appellant corporation is not bound by a reciprocal negative easement which would restrict the use of the property for residential purposes. An entry may be drawn accordingly.

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


author: By McNAMEE, J.

text:
    PAYER, Plaintiff-Appellant, v. BLACK et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21611.
    Decided March 27, 1950.
    Payer, Bleiweiss, Crew & Mollison, Cleveland, for plaintiff-appellant.
    C. W. Powerbaugh, Cleveland, for defendant-appellee.
   OPINION

By McNAMEE, J.

We are of the opinion that the successor trustee was without authority to sell the property absent the approval of the Probate Court for the following reasons:

1. Sec. 10509-227 GC, in effect at the time of sale, permitted executors and administrators, when so authorized by will or devise, to sell property without an order of court. The 1947 amendment to this section, which extended such permissive right to sell to a testamentary trustee, cannot be given retroactive effect. The presumption is that every amendment to a statute is made to effect some purpose. 37 O. Jur., 768, Sec. 438. The manifest purpose of the amendment to §10509-227 GC, was to confer upon testamentary trustees powers not theretofore possessed by them.

2. The power of sale granted to the trustees and successor trustee designated in the settlor’s will, contemplated a conversion of the property into money and a distribution of the proceeds, share and share alike, amongst the children of the settlor. The power of sale granted to such designated trustees and successor trustee was conditioned upon a request of the majority of the living children of the settlor. Manifestly the settlor did not envision or intend to provide for the sale of the property at the election oi the last surviving child acting as court appointed successor trustee under circumstances where said successor trustee was the owner of several fractional beneficial interests in the property. The conditional power of sale granted to the trustees and successor trustee named in the will, was not transmitted to the last surviving child as successor trustee.

Accordingly a decree will be entered for the plaintiff. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By WOODS,

text:
    BEGGS, In re Bankruptcy.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 67050.
    Decided October 16, 1950.
    William Rey Beggs, Warren, Bankrupt.
    Joseph A. Luardo, Warren, for Bankrupt.
    Peter Papp, Jr., Warren, Objecting Creditor.
    Reed S. Battin, Warren, for Objecting Creditor.
    Bernard W. Rosenberg, Warren, Trustee.
   MEMORANDUM OF REFEREE

By WOODS,

Referee in Bankruptcy.

William Rey Beggs, a. k. a. William Ray Beggs, a. k. a. W. R. Beggs, of Warren, Ohio, was adjudicated a bankrupt on the 24th day of April, 1950, and Bernard W. Rosenberg is the Trustee in Bankruptcy.

Specification of' Objections to the Discharge of this bankrupt were filed by Peter Papp, Jr., on the following grounds:

(1) “That the bankrupt William Ray Beggs did on the first day of September, 1948, transfer to his wife, Elva M. Beggs, for the consideration of love and affection, all interest to real estate of which he was the owner after judgments had been secured against him in the Common Pleas Court, Trumbull County, Ohio, and other litigation was pending; that the creditor, Peter Papp, Jr., did file an action in the Common Pleas Court, Trumbull County to set aside said real estate action on the grounds that the transfer was made to delay, hinder and defraud said bankrupt’s creditors, of which Peter Papp, Jr. was one; that said action is now pending in the Common Pleas Court of Trumbull County, Ohio, and that the bankrupt filed his petition in bankruptcy after said case was pending in said Common Pleas Court of Trumbull County, Ohio.
(2) “That the bankrupt, William Ray Beggs, on September 1, 1948 was the owner of real estate situated in the County of Trumbull, State of Ohio, hereinafter described:
“(Parcels 1 and 2 are described by metes and bounds as appears in deed and such descriptions are herein omitted.)
“Further the creditor, Peter Papp, Jr., says that the Trumbull Savings & Loan Company of Warren, Ohio, holds a first mortgage on said property .and that the bankrupt has made regular mortgage payments on said property, before the filing of his petition in bankruptcy, during the pendency of said petition and as a result thereof has defrauded his creditors by transferring the same solely for the purpose of hindering, delaying, and evading the payment of creditors.
(3) “The creditor, Peter Papp, Jr., further says that the bankrupt, William R. Beggs, has continued to make said payments to the Trumbull Savings and Loan Company, although in his sworn statement he denies that he has made any payments to creditors.”

Exceptions to the Specification of Objections to Discharge were filed by counsel for bankrupt and at the hearing decisión thereon was reserved so that after the evidence was taken all questions would be disposed of at one time.

The relevant statute, Section 14 (c) of the Bankruptcy Act, provides as follows:

“(c) The judge shall . . . discharge the applicant, unless he has ... (4) at any time subsequent to the first day of the twelve months immediately preceding the filing of the petition in bankruptcy, transferred, removed or destroyed, or concealed, any of his property, with intent to hinder, delay, or defraud his creditors;”

At the hearing it was admitted by bankrupt that he made the transfer of said real estate to his wife, Elva M. Beggs, on September 1, 1948; but denies that he made any payments thereafter of his own funds to apply upon the mortgage debt, and says that any payments thereafter made were from funds received from a son, and these were paid either by the wife or by bankrupt as agent for the wife, and further says that he has been ill since the transfer was made and only within the last month or so has he been able to earn any sum, and no contradictory evidence was offered.

The rule is that in order to justify the refusal of a discharge under Section 14 (c) 4, it must be shown that the acts complained of were done with intent to defraud, hinder and delay the creditors of said bankrupt. This must be actual fraudulent intent as distinguished from constructive intent. The question of whether the bankrupt had the necessary intent is a question of fact.

Where the husband conveyed to the wife the home which was heavily mortgaged shortly before filing the bankruptcy petition, it was held that a fraudulent purpose was not established; it was there held that evidence of a positive fraud must be intended before a discharge would be refused. In re Williams, 286 Fed. 135, 4 A. B. R. (na) 1106.

Admitting as true all the facts brought out by counsel for the objecting creditor, as has often been said, it is not so much the acts of the bankrupt that will prevent his discharge, as it is the intent with which he acts. In re Tirschler & Co., 18 Fed. (2nd) 365, 8 A. B. R. (ns) 824. This was early pointed out in re Nelson, 179 Fed. 320.

The intent to prefer creditors is not a substitute for the intent to hinder, delay or defraud creditors; that is to say, the court distinguishes between these situations. 1 Collier on Bankruptcy, 14th Ed. pgs. 1381-2-3. In Remington on Bankruptcy, Vol. 7, in Section 3219, page 455, it is stated that unless the bankrupt has committed some one or more of the acts prohibited by the Bankruptcy Act, his discharge shall be granted; and Section 14 (c) prescribes the acts which bar discharge. Specifically, under the same section, the author states: “A mere preferential transfer by the bankrupt is insufficient to bar discharge.” Cases cited.

A recent case to the same effect is in re Casey, 57 Fed. Supp. 805, (1944 E. D. N. Y.) where Judge Byers held that the bankrupt’s gift of a piano to his wife and daughter at Christmas, while a tort action was pending against him, was not a transfer with fraudulent intent, and the discharge could not be denied for such transfer.

The finding is that the Exceptions to the Specification of Objections filed by counsel for bankrupt should be sustained, that the Specification of Objections to Bankrupt’s discharge be overruled and dismissed and that a discharge be granted, to all of which the objector may have his exceptions.

ORDER OVERRULING OBJECTIONS AND DISCHARGING BANKRUPT

At Youngstown, in said District on the 16th day of October, 1950, before Wm. B. Woods, Referee in Bankruptcy of said Court.

It appearing that William Rey Beggs, a. k. a. William Ray Beggs, a. k. a. W. R. Beggs, of Warren, Ohio, in said District, has been duly adjudged a bankrupt under the acts of Congress relating to bankruptcy, and appears to have conformed to all the requirements of law in that behalf, and;

It further appearing that Specification of Objections to the discharge of this bankrupt were filed by Peter Papp, Jr., a creditor, and parties were in Court, and hearing had; and it appearing that proof fails to establish the fact alleged in the Specification of Objections so as to prevent a discharge of the bankrupt under Section 14 of the Bankruptcy Act;

IT IS, THEREFORE, ORDERED that said Specifications be and they hereby are overruled and dismissed;

IT IS FURTHER ORDERED by this Court that William Rey Beggs, a. k. a. William Ray Beggs, a. k. a. W. R. Beggs, be discharged from all debts and claims which are made provable by said acts against his estate, and which existed on the 24th day of April, 1950, on which day the petition for adjudication was filed by William Rey Beggs, a. k. a. William Ray Beggs, a. k. a. W. R. Beggs; excepting such debts as are by law excepted from the operation of a discharge in bankruptcy, to all of which the said objector excepts.


author: By PHILLIPS, PJ.

text:
    LOCKETT, Plaintiff-Appellee, v. ANCHOR MOTOR FREIGHT Co., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3328.
    Decided January 12, 1950.
    Clyde W. Osborne, J. Richard Andrews, Youngstown, for plaintiff-appellee.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

In this opinion the parties will be called plaintiff and defendant respectively.

Defendant, a corporation engaged as a licensed common carrier of merchandise and freight by truck, appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict for plaintiff, in his action filed in that court to recover damages from defendant for personal injuries and damage to his truck caused by one of defendant’s trucks colliding with his truck at the intersection of Ohio State Routes 45 and 18 in North Jackson, Mahoning County, “about a quarter to one” P. M., on September 20, 1947, allegedly as the result of the careless and negligent operation of such truck by one of defendant’s agents, servants and employees.

Plaintiff, aged 55 years, who was operating his truck, loaded with 7% tons of slag, in a southerly direction over and along Ohio State Roue 45 into the intersection of that highway with Ohio State Route 18, about 25 miles ar hour, (estimated by a State Highway Patrolman at 50 miles an hour) testified that he never saw defendant’s truck until it was about 50 feet distant from his truck and it was in Route 18; that he did not apply his brakes nor divert the course of his truck, “kept straight”; that the light turned green in his favor when he was about 200 feet away fiom it, and traveling about 15 miles an hour; that when he saw defendant’s truck he didn’t stop because “I knew stopping would do no good,” and had no “knowledge at any time that he (the driver of defendant’s truck) wasn’t going to stop and respect the red light.”

Defendant’s truck, loaded with four Chevrolet automobiles, was travelling in an easterly direction on Route 45 at about fifty miles an hour, according to plaintifi; and thirty miles an hour, as estimated by a state highway patrolman.

One of plaintiff’s witnesses, who saw the collision at close range, testified that he saw the truck of plaintiff, whom he referred to as the Preacher, first when it was 60 feet distant from the intersection’ where the collision occurred, travelling 30 miles an hour, at which time “he had the right of way”; that “the truck (defendant’s) came through the light and the Preacher, they were almost together there, and the truck driver and the truck, just like going down 45 to avoid hitting him, and the Preacher tried to do the same, and as he done that both front ends met, and the way he had turned just as soon as he hit the body upset and all the stuff went in there and he turned over” (sic); that “the light was red when the truck was going through”; that the drivers of both trucks alighted from their trucks immediately and plaintiff addressed the driver of defendant’s truck. “ ‘what is the matter with you, man?’, he says, ‘didn’t you see what you were doing, going through the light?’, and the fellow says ‘don’t holler at me’ he says ‘I didn’t have no brakes and I couldn’t stop.’ ”

Defendant’s only witness, who was not the driver of its truck, testified that the trucks of the respective parties collided at about the time the duly authorized and installed automatic signal light, which controls traffic moving over and along those highways, was changing into caution; “and there was a caution, and the driver coming from the north, he had caution too, and our driver started on through, and this tractor was already through the intersection, and this gentleman hit the trailer part of it, coming through; and I don’t judge they were going over forty miles an hour, they was going about thirty-five; I could tell that because I wtis standing there watching.”

Over the defendant’s objection, the trial judge permitted plaintiff to testify that the driver of defendant’s truck told him “immediately” after the collision, “he told me he had no brakes”; that his brakes were faulty, which condition he reported to his employer before the collision; that his employer instructed him to stop at a garage and have them repaired, and “then come on it”; that in obedience to those instructions he stopped at a garage and had some work done on such brakes.

Again over defendant’s objection, the trial judge permitted a state highway patrolman, who arrived at the scene of the collision about a half hour subsequent thereto, to testify that the driver of defendant’s truck told him the traffic control light was changing as he approached the point of collision; and that he attempted to stop, but that the brakes with which the truck was equipped “did not function.”

Over defendant’s objection, the trial judge permitted another of plaintiff’s witnesses to testify to a conversation he overheard, in which the driver of defendant’s truck inquired “what do you expect me to do? I didn’t have any brakes; they didn’t work. I called in about it and they told me to try to make it through.”

Counsel for defendant contend that the trial judge erred in permitting the introduction of such testimony because the alleged statements of the driver of defendant’s truck were not part of the res gestae, but were statements made after the happening of the collision of the trucks of the parties in response to questions asked him as to why he did not stop.

Counsel for defendant states by brief:—

“In view of the fact that its driver did not appear, defendant could only defend the action upon the theory that even assuming negligence upon its part, the plaintiff himself could and should have stopped his own truck and avoided the accident, and because he didn’t do so, he was contributorily negligent.
“* * * Every law suit is prosecuted on a theory and every law suit is likewise defended on a theory. It is perfectly obvious that the defendant defended this law suit only upon the theory that the plaintiff was guilty of contributory negligence in failing to stop his own truck after he knew or should have known that the defendant’s truck was not going to stop. In his charge the court did not clearly present this theory to the jury. He dealt only with an abstract proposition of law.”

Counsel are referred to the following authorities:—

“There is no doubt that where evidence of an act done by a party is admissible, his declarations made at the time, explanatory of the act and tending to elucidate it, are also admissible as a part of the res gestae. But it is only where some act is itself relevant and material, and to which the-declarations relate, and which they tend to explain, that-they become competent.” The Union Central Life Insurance Co. v. Cheever, 36 Oh St 208.
“The admissibility of a statement under the doctrine of res gestae depends upon its having been spontaneous or impulsive. It need not be strictly contemporaneous with the-incident to which it relates, but should be in the nature of an exclamation and not a narrative of a past event.” Bake v. Industrial Commission of Ohio, 135 Oh St 627.
“This court has had occasion in comparatively recent cases to define and apply the res gestae rule. The element of time in the relation of a statement to the occurrence in question, though important, is not controlling. The statement, to be admissible, need not be strictly contemporaneous with the incident to which it relates, but should be in the nature of an exclamation, and its competency depends primarily upon having been spontaneous or impulsive and not a narrative, of a past event.
“As stated in the syllabus of the case of State v. Laseeki, supra, ‘the doctrine of res gestae, as applied to exclamations, should have its limits determined, not by the strict meaning of the word ‘contemporaneous,’ but rather by the causal, logical or psychological relation of such exclamations with the primary facts in controversy.’ ” Bake v. Industrial Commission of Ohio, 135 Oh St 630.
“The general rule is that evidence of the statement by the party injured declaring the circumstances of the injury, made a considerable time after the happening, is hearsay and inadmissible, but where the statement is made immediately after the injury, in the presence of the person testifying, who asserts the circumstances as observed by him, this evidence constitutes an exception to the hearsay rule and is admissible (3 Wigmore on Evidence, Section 1746). Many cases where-the courts have admitted such evidence, are cited by this excellent author, some on the ground that the statements were a part of the res gestae, some under the verbal-act doctrine, as being a part of the principal fact, and some as an exception to the hearsay rule.” Taylor v. Industrial Commission, 13 Oh Ap 264.
“It is fundamental that statements which are so identified with a transaction as to constitute verbal acts are admissible as a part of the res gestae, but to make them admissible the statements must be contemporaneous with the transaction which they explain. The word ‘contemporaneous,’ however, should not be limited to its strict meaning, but its limits should be determined rather by ‘the causal, logical, or psychological relation of such exclamations (or statements) with the primary facts in controversy.’ ” Liberty Highway Co. v. Callahan, 24 Oh Ap 383.
“A declaration made by the assured immediately after the accident as to the accident is competent evidence, and its admission does not constitute prejudicial error, especially where the accident is shown by other evidence.” United States Casualty Co. v. Thrush, 21 Oh Ap 130.

We conclude that the trial judge did not err to defendant’s prejudice as charged in this assigned ground of error.

Further it is observed that counsel for defendant did not object, nor except, to the introduction of the evidence of which complaint is made. Rather he proceeded to cross-examine the witnesses, the introduction of whose testimony he complains now, and offered in evidence one of plaintiff’s exhibits concerning defendant’s brakes, by which he waived any claimed error in the introduction of evidence. See Macaluso Fruit Co. v. Commercial Motor Freight, Inc., 57 N. E. (2d) 692.

Counsel for defendant urges that the trial judge “erred in refusing to charge the jury on the defendant’s theory of the case”; and in refusing to charge the jury in response to his request made at the conclusion of the general charge to the jury “that if the plaintiff, in the exercise of ordinary care, either discovered, or could have discovered, that the defendant’s truck could not stop, or was not going to stop, and the plaintiff, himself, thereafter, in the exercise of ordinary care, could have brought his own truck to a stop and avoided the accident, the plaintiff may not recover.”

In response to the request of counsel for defendant the trial judge said, correctly we believe, “some of the elements in that are correct and some are not. It cannot be given. Is that all.”

Defendant’s counsel did not object, nor except, to the court’s refusal to charge as counsel for defendant requested. Further, the trial judge in his general charge charged on the subject of such request. No further comment on this branch of the assigned ground of error under discussion is necessary. Clearly the trial judge did not err to defendant’s prejudice in refusing to charge as requested by defendant’s counsel.

Now counsel for defendant contends that the trial judge erred “in not granting a new trial because the verdict of the jury was not only excessive, but was rendered under the influence of passion and prejudice”; and argues by brief that “the jury must have reached it (its verdict) while under the influence of passion or prejudice.”

We will not lengthen this opinion unduly by detailing the nature nor extent of plaintiff's injuries and disability, other than to say that plaintiff’s hearing is permanently impaired; “I just can’t hear good any more”; that he has a roaring sensation in his head; that he sustained multiple contusions and bruises in such collision which have been cured and corrected, and he was in the hospital for 31 days; that he suffers from a permanent back injury; wears a brace, which restricts the motion of the back to 30% of normal, and will never again be able to do heavy lifting nor bending; and is permanently disabled. Further the evidence discloses that his truck, which was worth $1500.00, was damaged to the extent of $1150.00; that he was earning $300.00 a month at the time.of collision, and has earned nothing since, and is advised he will never be able to earn $300.00 a month again.

There is nothing in the bill of exceptions submitted to us for review leading us to believe that the jury rendered its verdict while under the influence of passion or prejudice. However, considering plaintiff’s injuries, which it is not necessary to state further, we conclude that the verdict of the jury is excessive to the amount of $4500.00, which if accepted by plaintiff will result in an affirmance of the judgment of the court of common pleas, and if rejected in a reversal thereof.

If such remittitur is accepted within the time prescribed by this court the judgment of the court of common pleas is modified as indicated herein, and as modified is affirmed; and if rejected reversed on the ground that the verdict of the jury and judgment entered thereon are excessive.

NICHOLS, J, concurs in judgment.

BUCKLEY, J, concurs in judgment.


author: By MILLER, PJ.

text:
    HERSBERGER et, Appellants, v. OHIO AVIATION BOARD, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4363.
    Decided February 28, 1950.
    Flynn, Py & Kruse, Sandusky, Adams, Rapp & McCann, Columbus, for appellants.
    Hon. Herbert S. Duffy, Atty. Genl., Joseph F. Ford, Asst. Atty. Genl., Columbus, Miss Geraldine Larkin, former Counsel for the Village of Kelley’s Island, for appellee.
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court affirming an order of the Ohio Aviation Board •granting to the municipality of Kelley’s Island a certificate for the use of a landing field within its borders for commercial airplane purposes.

The record discloses that the appellants herein, Milton Hersberger and Air Tours, Inc., of which Mr. Hersberger is president, were the only objectors to the issuance of the permit, and that Mr. Hersberger owns and operates an airport only a few hundred feet south of the proposed village airport.

Two errors are assigned, to wit, (1) The judgment of the Court of Common Pleas is not sustained by the evidence; (2) The judgment is contrary to law.

The Common Pleas Court found, and we think properly so, that there was substantial evidence in the record to support the conclusions of the Board and therefore there was no abuse of discretion. In the public hearings before the Board there was a wide conflict in the evidence as to the hazardous conditions that would result from the proximity of the two airports. There was also a conflict, more evenly divided, however, in the evidence as to the need of the proposed airport. Each of these, however, was a factual question which could be resolved only by the Ohio Aviation Board. Farrand v. State Medical Board, 151 Oh St 222. We therefore find no merit in this first assignment.

The second assignment.raises the question as to the legality of the procedure before the Board. It is based upon the ground that the ordinance or resolution authorizing the municipality to apply for the permit was not properly promulgated or adopted. The appellants are contending that the application submitted to the Board by the village mayor, Paul M. Beltz, was filed without authorization by the council and therefore the Board erred in giving it any consideration. The record discloses that no authorization was given by ordinance or resolution for the filing of the application in the first instance, but several months thereafter a resolution was adopted confirming the act of the mayor in filing the application. This resolution is urged as being contrary to law in that it was not published in accordance with §4227 and §4232 GC. The Board held that upon reexamination of the application it was found to be regular upon its face; that if there was no legislation authorizing such application or if legislation purporting to authorize the same is deficient it believed that any party objecting had a complete remedy in the courts; that in any event it would be beyond its power to pass upon the sufficiency and validity of the village ordinance. We believe this reasoning to be sound and logical. As was said by Turner, J., in the Farrand case, supra, the purpose of administrative hearings in particular fields was for the determination of facts by men equipped with the necessary knowledge and experience therein. Sec. 6310-39 GC requires that all members of the Board have knowledge and practical experience in aviation. They are therefore not always qualified to pass upon legal questions. The granting of the permit authorized its use when properly approved by the municipality. If the airport has not been legally created, there certainly is a legal remedy to prevent its use as such. Likewise, if the application for a permit has been illegally made the same remedy would exist.

Although this question is not properly before us it would seem that the village council may still ratify the unauthorized act, if it was such, at this late date. In State of Ohio v. Buttles, 3 Oh St 309, Ranney, J., said at page 322:

“* * * When the agents of the state exceeded their authority, the state had its option to ratify their acts or repudiate the contract they had made in its name; * * *. If the state could have lawfully made the contract at the time and under the circumstances it was made, it could lawfully adopt the one made in its name by those who assumed to act as its agents. * * *”

On page 323, Judge Ranney said:

“In short, any contract that an individual, or body corporate or politic, may lawfully make, they may lawfully ratify and adopt, when made in their name without authority; and when adopted, it has its effect from the time it was made, and the same effect as though no agent had intervened. * * *”

It is therefore our conclusion that the trial court properly held that the ruling of the Board was not contrary to law, and the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By WEBER, J.

text:
    SIMMONDS v. EYRICH, et.
    Common Pleas Court, Hamilton County.
    No. A-123949.
    Decided October 20, 1950.

      Richard E. Simmonds, Bert H. Long, Cincinnati, for plaintiff.
    Carson Hoy, Pros. Atty., C. Watson Hover, Carl B. Rubin, Asst. Pros. Attys., Cincinnati, Amicus Curiae.
    Herbert S. Duffy, Atty. Geni., Nelson Lancione, Robert A. O’Neill, Asst. Attys. Geni., Columbus, for defendants.
   OPINION

By WEBER, J.

Based upon informal opinion No. 93 of the Attorney General of Ohio, on July 25, 1950 the Secretary of the State of Ohio, as the chief election officer of the State, issued a release to the defendants, the duly appointed, qualified and acting Board of Elections of Hamilton County, Ohio, directing that the same assistance in marking his ballot should be given to an illiterate voter as is given under authority of §4785-132 GC, to a voter suffering from a physical infirmity. Similar instructions were circulated to all boards of elections in Ohio.

The plaintiff is a duly nominated and certified candidate for the office of Representative to the General Assembly of Ohio from Hamilton County, which office is to be voted upon at the general election to be held November 7, 1950. The plaintiff prays that the defendants, as members of said Hamilton County Board of Elections, be permanently enjoined from issuing, in compliance with said directive of the Secretary of the State of Ohio, instructions to election officials in Hamilton County that assistance be furnished to illiterate voters in marking their ballots, on the ground that assistance to illiterate voters in the manner directed in the notice from the Secretary of State and received by the defendants will be in violation of the election laws of the State of Ohio and detrimental to the rights of the plaintiff as a voter and as a candidate for said office and his special interest in legal voting.

A general demurrer was filed to the petition on the ground that it does not state a cause of action. It was stipulated that the defendants intended to and would issue said instructions unless permanently enjoined. The plaintiff testified that his name would appear on the ballot at the coming election as a duly nominated candidate for the office of representative to the General Assembly; that furnishing aid to illiterate voters in marking their ballots was contrary to law and that permitting the ballots of such voters so aided to be counted would be inequitable to other voters and work a special injury to him in his capacity as such candidate and that such injury could not be compensated in money or otherwise.

At the close of the evidence a demurrer to the evidence was orally made. Two principal issues are raised by the pleadings and the evidence.

The first question — Does the plaintiff allege and prove sufficient facts to establish great or irreparable harm to him because of the threatened action of the Board of Elections?

It seems clear that every voter is as much injured by the acceptance of votes cast in an illegal manner as by the exclusion of his own vote if cast in a legal manner. It makes little difference to him whether his vote is wrongfully excluded or completely neutralized by a vote cast in an illegal manner.

In the case of Portmann v. Board of Elections of Stark County, 60 Oh Ap, 54, 13 O. O. 420, a referendum was called upon a municipal ordinance. In allowing a mandatory injunction to require the Board of Deputy Supervisors of Elections of the county to submit the same in a form that is intelligible and not misleading the Court said, at page 57:

“It is contended, in the first place, by the demurrer, that the plaintiff is without authority to maintain this action, either as an elector, or as a taxpayer. It is to be observed that this is an appeal to a court of equity to remedy a claimed injustice. Such an action is necessary for the protection not only of the plaintiff, but of numerous other electors in the city. The matter is one of general and public interest. It seems to us that, if the facts do show that a gross injustice would be done except for relief from a court, the situation presented is one which does justify a court of equity in granting relief, and the plaintiff is clearly within his rights in instituting and maintaning such an action.”

There is no way to repair or compensate such an injury, and the injury is greater and more difficult to repair if the plaintiff is a candidate and votes cast for him in a legal manner are completely neutralized by votes cast in an illegal manner for another candidate. An injunction against such a threatened injury is the only adequate remedy available to the plaintiff.

The second question is whether a duly qualified voter who is unable to read and write the English language is entitled to assistance in marking his ballot.

This involves a determination whether the instructions of the Secretary of State to give aid to illiterate voters in marking their ballots is contrary to the present law of Ohio. The question is made acute because of the so-called Office or Massachusetts form of ballot recently adopted as Section 2a, Article V of the Constitution of Ohio, and which will be used for the first time in the coming November election. Since the candidates on said ballot must be voted for separately and their names will be rotated, it may be difficult for a voter with little education, as well as for a voter who cannot read or write, to properly express his choice. If this were the only form of ballot ever used, the question presented by this suit could be easily answered, since whatever educational qualifications it may require are imposed by constitutional amendment and no objections can be made thereto. However, the question is much broader in its scope; it applies to all forms of ballot, including proposals for constitutional amendments, bond issues, the proportional representation system of voting, etc.

Sec. 4785-6 GC, makes the Secretary of State the chief election officer of the State and invests him “with such duties relating to * a * the conduct of elections as are prescribed in this act.”

Sec. 4785-7 GC, provides in part: “It shall be the duty of the secretary of state * * * to prepare rules, regulations and instructions for the conduct of elections.”

Sec. 4785-13 GC, prescribes the duties of the boards of elections in their respective jurisdictions among which duties are:

Subsection e. “To make and issue such rules, regulations and instructions, not inconsistent with law, or rules established by the chief election officer * *

The only express authority for giving assistance to voters in marking ballots is found in §4785-132 GC:

“Assisting Voter in Marking Ballot. Any elector who declares to a presiding judge of elections that he is unable to mark his ballot by reason of physical infirmity, and such physical infirmity is apparent to the judges to be sufficient to incapacitate the voter for marking his ballot properly, may upon request be aided by a near relative who shall be admitted to the booth with such elector, or may receive the assistance in the marking thereof of the two judges of elections belonging to different political parties, and they shall thereafter give no information in regard to this matter. The presiding judge may require such declaration of inability to be made by the elector under oath before him. Such assistance shall not be rendered for any other cause.”

The standard dictionaries define “physical” as follows: “Relating to or pertaining to the body, as- distinguished from the mind or soul or emotions.”

It seems clear from the mere wording of this statute that the legislature intended to exclude, if not expressly deny, assistance to all voters except those who are unable to mark their ballot because of a bodily infirmity which is apparent, and that the directive of the Secretary of State which extends aid in the same manner to illiterates is contrary to law. This conclusion is confirmed when consideration is given to the language in former statutes relating to the same subject and repealed by §4785-132 GC, enacted in 1930. The first such provision appears in 88 Ohio Laws (1891) page 461, and reads, in part, as follows:

“Any elector who declares to the presiding judge * * _ that for any reason he is unable to mark his ballot, shall," upon request, receive assistance * * * in the marking thereof

This section was amended in 1896 to read, in part, as follows:

“* * * unable to mark his ballot by reason of blindness, paralysis, extreme old age, or other physical infirmity and such physical infirmity is apparent * * *. But such assistance shall not be rendered for any other cause which the voter may specify.”

Consideration of the penalty sections of the law relating to the same matter also confirms the conclusion that §4785-132 GC, permits aid only to voters unable to mark their ballots by reason of a bodily infirmity which is apparent.

Sec. 4785-209 GC, reads in part as follows:

“Whoever, being a judge or clerk of elections, * * * misleads an elector who is physically unable to prepare his ballot; or marks a ballot for such elector otherwise than as directed by him, * * * upon conviction thereof, shall be fined not less than one hundred and not more than five hundred dollars, or imprisoned in the county jail not less than three nor more than six months, or both.”

This section first enacted in 1930 amended and repealed former §2966-44 GC, which read in part as follows:

“Any judge or clerk who shall mislead an illiterate voter or a voter who is blind or for any reason unable to prepare his ballot * * *.”

Comparison of the above laws relating to assistance to voters in marking their ballots clearly manifests an intention on the part of the legislature to secure the secrecy and purity of the ballot by confining assistance to voters to cases of extreme necessity and in which there is no other way by which the disability can be removed in the least degree so as to enable the voter, when in the booth, to place a mark upon the ballot.

But counsel for the defendants contend that if such is the necessary and proper interpretation of §4785-132 GC, then the practical effect of said law is to disenfranchise the voter and that the law is therefore unconstitutional, and ■if unconstitutional the original act (1891), repealed by it, is revived and under it assistance may be given to a voter unable for any reason to mark his ballot.

It is well settled that it is the imperative duty of the court to declare an act of the legislature void if it is in conflict with the fundamental law. It is equally well settled that the presumption is in favor of the validity of the law, and in order to condemn the law as unconstitutional the conflict between the law and the constitution must be so clear and substantial that the Judge feels a clear and strong conviction of their incompatibility with each other.

One basis of the claim that the law so interpreted is unconstitutional is that it indirectly and in its practical’effect by legislative enactment requires literacy as a prerequisite to the right to vote or at least places an impediment upon the complete exercise of the right to vote.

There are very few decisions in other states directly in point and they are in conflict. The defendants rely principally upon the case of Wickham v. Coyner, 12 C. C. (N. S.) 433, decided by the Circuit Court of Delaware County. Referring to §4785-132 GC, the court says:

“Under the Constitution of the state, electors are not required to possess an educational qualification, and the legislature has no power to require qualifications in addition to those named in the Constitution.
“To place such a ticket in the hands of an elector to compel him to retire to a booth and prepare his ballot, without assistance, can not be considered in any light other than a direction to him to read party emblems, to vote a straight ticket, and to deprive him of all opportunity to vote for any candidate not upon the one ticket or the other.
“In harmony with these views, we are of the opinion that if the case required it, we would hold that the direction that the judges should not render assistance to voters other than those afflicted with blindness, paralysis, the feebleness of extreme old age, or other physical infirmity, is a limitation upon the right of an elector to cast his ballot not warranted by the Constitution of the state.”

The intimation by the court in the above case that said law is invalid for the reason that it restricts the right to vote by imposing an educational qualification upon the right to vote, contrary to the constitution, is admitted by the court to be obiter dictum and therefore not binding upon this court. Furthermore the reasoning of the court is not very convincing, since it is based upon the assumption that the statute under consideration does impose an educational qualification upon the right to vote. Much more convincing is the reasoning of the Supreme Court of Ohio in a case decided several years later and reported as State, ex rel. Weinberger v. Miller, 87 Oh St, 12. In that case the court held to be constitutional the act of the legislature which provided that judges should be elected upon a separate nonpartisan ballot and that the names of the candidates should be rotated.

It was contended that the law was unconstitutional because the difficulties presented to the voter by such a ballot indirectly imposed an educational qualification and that the practical effect would be to disenfranchise a voter who could not read or who had little education. The statute of 1896 which permitted assistance only to voters unable to mark their ballots by reason of blindness, paralysis and other apparent physical infirmities, was brought to the attention of the court, and, although the court made no mention of that law in the opinion, it is clear that it had in mind, when deciding the validity of the nonpartisan judicial ballot, the fact that, the law permitted no assistance to an illiterate voter. A few quotations from the opinion are pertinent to and furnish an excellent guide on the phase of the case now under consideration.

“Laws must afford to everybody equal opportunities under the law, but it is not possible for constitutions or legislation to make all men equal in understanding, intelligence and education.
“When the framers of the constitution adopted the amendment which provided that elections should be by ballot, they must have known that there were then, and in all probability would continue to be, electors of this state unable to read.
“It is apparent that just so long as we are to have elections by written or printed ballots, just so long must the uneducated man find it difficult to vote for the candidates of his choice.
“It is always much more difficult for some electors to cast their ballots than for others, but these difficulties inhere in the inequalities of the men themselves and not in the law.
“If the ballot presents to the uneducated elector the difficulties complained of, the state is powerless to give him further aid until some Solomon shall devise a plan and method that will obviate all these difficulties, and provide not only equal opportunities to the electors, but also provide some method by which all electors may be able to take the same advantage of these opportunities.
“The voter who will not undertake to advise himself on these matters, holds too lightly the privilege and prerogative of the ballot, and there would seem to be no just reason why legislation should be shaped to meet his inconvenience or to overcome his indifference.
“It must be conceded that the intention and purpose of all elections is to register the will of the people honestly expressed through the ballot, but every elector must use some intelligence in the exercise of his right and privilege, otherwise an election would be nothing more than a farce, unless indeed it should later develop into a state tragedy.”

It is clear from the above quotations that the court reached its conclusion on the assumption that there is no duty upon the legislature to provide a method such as assistance in marking the ballot which will tend to equalize the capacity of all voters to express their will in voting. It is also significant that when the people provided in their constitution that voting should be by ballot and in the last amendment that voting, in certain cases, should be by the Office form of ballot, they did not require that assistance be given to the illiterate voter.

The defendants also rely upon the case of Monroe, et al. v. Collins, 17 Oh St, 666, and- stress the following rule which the court there followed:

“The true line between laws which take away or abridge the right of suffrage, and those which lawfully may be enacted to regulate its exercise, is laid down by the Supreme Court of Massachusetts in Capen v. Foster, 12 Pick. 488. It was there held, substantially, that laws of the latter description must be reasonable, uniform and impartial, and must be calculated to facilitate and secure, rather than to subvert or impede the exercise of the right to vote.”

This rule is well settled and is sound. It was properly applied to the facts of the case. The constitution of Ohio at that time permitted only white males to vote. The law was settled that any man who had a preponderance of white blood was deemed to be white. The legislature passed a law which required a man who visibly had an admixture of white and African blood to answer numerous questions which would present evidence that he had a preponderance of white blood. The court held the law to be invalid.

It- will be noticed that the law in question in the above case made positive provisions which required a compliance therewith, and that these provisions not only seriously impeded the free exercise of the right to vote, but also probably abridged the right or opportunity to vote.

The law under consideration in this case, relating to aid in marking ballots, contains no positive provisions requiring active compliance therewith on the part of an illiterate voter. It is negative. It merely fails to provide a method which will obviate or at least alleviate the impediment which in-inheres in the voter himself by reason of his inability to read or his lack of sufficient education to understand the ballot so as to enable him to completely express his will with reference thereto.

If this failure of the legislature to so provide renders this law invalid, it would seem logically to follow that the legislature must either provide a ballot so simple in form and substance that every voter will be able to fully express his will with reference thereto or provide a method or plan which will remove the effects of a difference in intelligence and education and thus obviate, or at least alleviate, all difficulties presented by a particular ballot to any particular class of voters. We find nothing in the law of Ohio which either expressly or impliedly imposes such a duty upon the legislature. Sec. 4785-132 GC, does not impose an educational qualification and is not for that reason unconstitutional.

It is necessary to examine another possible constitutional objection to the statute under consideration. It does provide assistance to a particular class of voters, namely, those who are unable to mark their ballot because of a physical infirmity which makes the disability apparent. It is well settled that class legislation is valid only if it is a reasonable classification and affects all in the class impartially and operates uniformly throughout the State. There can be no doubt that this law operates uniformly throughout the State and impartially upon all members in the class. Is the classification reasonable? For illustration is there a clear demarcation between the effects upon the ability to mark a ballot caused by a physical infirmity such as blindness or paralysis and such effect caused merely by the inability to read and write or other educational inadequacy? We think so. Regardless of any preliminary preparation the physically disabled person makes, when he enters the voting booth his disability remains with him. Regardless of his understanding of the ballot and even though with assistance he has prepared a sample ballot, he is still unable to place a mark upon it. The illiterate voter may by preparation and consultation with others prior to the election acquire some understanding; he may prepare some guide such as a sample ballot, which will enable him to identify the candidates for whom he wishes to vote or the measures for which he is in favor. His disability to mark the ballot may by sufficient effort on his part be cured. His disability does not necessarily continue with him into the voting booth.

There is another important line of demarcation. The law at one time provided aid to any person who claimed that he was unable to mark his ballot for any reason. Experience with this law apparently convinced the legislature that it opened the door too wide to fraud and that the necessity of such a rule was not sufficient to compensate for the possible invasion it would bring upon the security of the secrecy and purity of the ballot. They then enacted the present law which confines assistance to those having a physical infirmity which is such as to make it apparent that such a person cannot mark the ballot. With respect to such an infirmity there is little chance of simulation which cannot be easily detected. Where the claimed disability is illiteracy or lack of understanding there is much opportunity for simulation and the simulation cannot be detected except by difficult and time-consuming tests which would impede the conduct of the election. Sec. 4785-132 GC, is a valid classification. Whether this law is wise is a matter for the legislature to determine. If otherwise valid the question of whether it is wise or unwise is no concern of the court.

For the foregoing reasons we hold that §4785-132 GC, is a valid law. In State, ex rel. Sagebiel v. Board of Elections of Montgomery County, 144 Oh St, 162, 29 O. O. 259, the Court on page 166 stated:

“It needs no citation of authority to demonstrate that the orders of the Secretary of State which are to be obeyed must be lawful orders finding their support in some section or sections of thé General Code.” •

We find no such support for the orders of the Secretary of State that assistance should be given to illiterate voters in marking their ballots. Such orders are contrary to the only law upon the subject and therefore are null and void.

It is therefore ordered, adjudged and decreed that the release of the Secretary of State to the defendants, that instructions should be issued by them to give the same assistance to illiterate voters in marking their ballots as §4785-132 GC, provides should be given to those voters having a physical infirmity which renders them unable to mark their ballot, is unlawful, and that the defendants be and are hereby permanently enjoined from obeying said orders of the Secretary of State and giving instructions that assistance should be given in the polling places to illiterate voters in marking their ballots.


text:
    STATE, Plaintiff-Appellee, v. JOHNSON, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 680.
    Decided April 6, 1950.
    Howard G. Eley, Pros. Atty., Greenville, for plaintiff-appellee.
    T. A. Billingsley, Floyd D. Smith, Greenville, for defendant-appellant.
   OPINION

By MILLER, PJ.

The defendant, Charles D. Johnson, was indicted upon two counts, to wit, kidnapping and shooting with intent to kill. A plea of not guilty was entered to each charge. Upon trial being had a verdict of guilty was returned as to the kidnapping charge and not guilty as to that of shooting with intent to kill. We shall therefore confine our attention solely to the kidnapping charge.

The indictment alleges that the defendant, Charles D. Johnson, “did unlawfully and fraudulently and without any lawful warrant or authority seize, take, steal, and kidnap one Keith Lehman, and did unlawfully, forcibly, violently, and against his will, carry him off, the same not being done by the said Charles D. Johnson in pursuance of the laws of this State or of the United States, but contrary thereto.” The error assigned is in the following charge given to the jury.

“The crime charged in the first count of the indictment is defined by §12424 GC, and I will now read to you those parts which are applicable and pertinent to this particular case: ‘Whoever kidnaps, or forcibly or fraudulently carries off, detains or decoys a person.....shall be imprisoned.....,’ and then the statute prescribes the punishment.
“In every criminal offense there are certain essential elements necessary to constitute the crime, and it is the duty of the Court to point out to the jury what issues they must consider. The essential elements of this crime of kidnapping, as defined by statute read to you, are as follows:
(1) “That the crime with which the defendant is charged was committed in the County of Darke and State of Ohio.
(2) “That the alleged crime was committed on or about August 20, 1949, and
(3) “That the defendant, Charles D. Johnson, did unlawfully and forcibly carry off and detain or decoy the said Keith Lehman without his consent and against his will.
“It is necessary to constitute the crime of kidnapping that the taking or detention shall be without lawful authority, and it is also essential that the taking or detention be against the will of the person so taken or detained.
“The force employed must be of sufficient character so that the taking and detention of the person is against his will. The force must be accompanied with circumstances tending to excite terror in the person and to prevent him from maintaining his rights. There must at least be apparent violence, unusual weapons or other acts giving reasonable cause to fear some bodily harm should the person attempt to resist and maintain his rights.
“The criminal intent necessary to the existence of the offense is implied in the prohibitive act. This means that no specific intent is required to constitute the offense of kidnapping, but that should you find that the State has proved beyond a reasonable doubt each and every essential element of the crime of kidnapping, as they were defined and explained to you, the criminal intent of the defendant would then be implied or inferred from such prohibitive acts.”

The appellant is contending that the court erred in its charge when it stated that no specific intent is required to constituté the offense of kidnapping ■ when the State has proven all of the essential elements of the crime; that the criminal intent of the defendant would be implied or inferred from such prohibitive acts. In giving consideration to this charge and the sufficiency thereof it becomes necessary to look to the plea of the defendant, which was merely one of “not guilty.” Had the plea been “not guilty by reason of insanity” a different question would have been presented, but when this plea is not entered the defendant “shall be conclusively presumed to have been sane at the time of the commission of the offense charged, provided that the court may for good cause shown allow a change of plea at any time before the commencement of the trial.” Sec. 13440-2 GC. Since by statute the defendant was presumed to be sane, there was no issue as to his mental condition and the failure to charge upon the legal effect of the defendant’s alleged intoxication was not erroneous. The court properly charged as to all of the essential elements of the crime. The appellant cites the case of the State of Ohio v. Hayes, No. 58309, Court of Common Pleas for Hamilton County, as being contra to the case at bar. We cannot agree with this conclusion. This case was also a kidnapping case, but the plea was “not guilty by reason of insanity.” Naturally, under such a plea 'the mental condition of the defendant was placed in issue, and the court so recognized it in its charge. As to the necessary elements of the crime the court was in complete accord with the case at bar. In his charge to the jury Judge Bell defined the essential elements of the crime as follows:

“In this particular case it is necessary for the State to prove beyond a reasonable doubt:
1. “That the act charged in the indictment, if it did take place, took place in Hamilton County and the State of Ohio, on or about the date set forth in the indictment.
2. “It is necessary for the State to prove that the defendant kidnapped a man named in the indictment as Easton, and that he compelled Easton to do his bidding, against the will and desire of the said Easton.
3. “The State must also prove, and you also have a right to consider, the circumstances under which the compulsion was exerted. If you find beyond a reasonable doubt that this defendant compelled Easton against his will, by force or threats, to do his bidding, then you would be entitled to find that the defendant had kidnapped Easton.
“These are the essential elements which the State must prove beyond a reasonable doubt, and if the State has proven those essential elements, then the State is entitled to receive, and it is your duty to return, a verdict finding this defendant guilty of the offense named in the indictment— unless you 'find that at the time he did the act charged, he was insane.”

It will be noted that Judge Bell made no mention of the necessity of proving criminal intent. Sec. 12424 GC, under which this prosecution is brought, it will be observed is in two parts; the second part, which is not involved here, makes criminal intent a special element of the offense. Since it is excluded from the first part it must be assumed that it was so intended by the lawmaking body. Also, the following three sections, to wit, §§12425, 6 and 7 GC, are on related subjects and each makes criminal intent a necessary element of the offense. The appellant has cited several cases from foreign jurisdictions which are not helpful for the reason that the statutes involved are not identical to our own. We have, however, been referred to no cases in Ohio which support the appellant’s views.

We have been cited to the case of Samson v. State, 37 Oh Ap 82, which we think gives some support to the appellee. At page 82, it is said:

“The statute, fairly construed, provides a punishment for whoever kidnaps or forcibly or fraudulently carries off, detains, or decoys a person, and it also provides a like punishment for whoever unlawfully arrests or imprisons a person with the intention of having such person carried out of the state.” (Emphasis ours.)

It will be noted that proof of criminal intent is necessary only when the intention is to carry the person out of the state.

We therefore find no error in the record and the judgment is ordered affirmed.

HORNBECK and WISEMAN, JJ, concur.