author: By ROSS, PJ.:

text:
    DEYE, Petition In Re Petitioner-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7112.
    Decided June 27, 1949.
    Ferd Bader, Jr., Cincinnati, for petitioner-appellant.
    Nathan Solinger, Cincinnati, for respondent-appellee.
   OPINION

By ROSS, PJ.:

On January 18th, 1949, Emanuel S. Marks filed a petition in the Common Pleas Court of Hamilton County, Ohio.

In this petition, he alleged that he purchased an eight story building from The Kruse & Bahlman Hardware Company on October 15, 1948; that at that time The Quality Engraving & Electrotype company was a tenant in such building and that co-incident With the transfer of title to the building, Marks acquired the lease of The Quality Engraving and Electrotype Company by assignment from the former owner grantor, The Kruse Bahlman Hardware Company, that such former owner had permitted The Quality Engraving and Electrotype Company to install a certain “panel board and interior distribution arrangement” which is now located in that part of the premises under the sole control and in the possession of the new owner, Emanuel S. Marks, plaintiff in the principal action.

In the petition, this plaintiff further alleges that The Quality Engraving and Electrotype Company used this panel board and accessories so occupying the premises of the plaintiff for the purposes of distributing electricity to other co-tenants in the building, that it paid a gross rate to The Cincinnati Gas & Electric Company and charged its co-tenants a retail and higher rate for distribution of electric current to them.

The prayer is for an accounting of profits so made by The Quality Engraving and Electrotype Company, and for injunction against continued occupation of the property of the plaintiff Marks by the panel board and accessories.

It may be well doubted whether under such allegations the plaintiff ever will be entitled to any accounting. It would appear that his damages are limited to the reasonable rental value of the space unlawfully occupied, if it be shown that The Quality Engraving and Electrotype Company had no legal right to occupy the space used for the panel board and accessories.

Now the plaintiff proceeded to take the deposition of one Charles E. Deye, president of The Quality Engraving and Electrotype Company, and the president was served with a subpoena duces tecum, in which he was ordered to: “bring with you all books, records, memoranda and documents reflecting income of The Quality Engraving & Electrotype Company from the sales of electric current at the building at 424 Commercial Square, Cincinnati, for the period from November 1, 1948 to date, and reflecting also the payments made by The Quality Engraving & Electrotype Company to The Cincinnati Gas and Electric Company for electric current during the period'November 1, 1948 to date, also records, memoranda or documents reflecting the volume of separate use of electricity by each of the tenants in the building at 424 Commercial Square, Cincinnati, including The Quality Engraving & Electrotype Company, for the period of November 1, 1948 to date; also all records, memoranda or documents reflecting billings for electricity made by The Quality Engraving & Electrotype Company to other tenants of the building at 424 Commercial Square, Cincinnati during the period November 1, 1948 to date.”

In the bill of exceptions, the testimony of the president of The Quality Engraving 8s Electrotype Company (which Company was the defendant in the principal action) is quoted. It is to be noted that the president was called as a witness and his deposition “taken as on cross-examination.”

What transpired before the notary is shown from the following quotation from the bill of exceptions;

“Q. Mr. Deye, you are the President of The Quality Engraving & Electrotype Company, the defendant in thjs case, are you not?
“A. Yes.
“Q, And you are actively engaged in the day to day conduct of the business?
“A. Yes.
“Q. You have access to the books and records and documents, etc.?
“A. Yes.
“Q. Those books, records, papers and memoranda, Mr. Deye, are subject to your control and supervision, are they not?
“A. In the main, yes, I control them, insofar as I know the records are there as far as I know.
“Q. Did you bring with you’ today for this deposition, in response to the subpoena that was issued and served on you, all of the books, records, memoranda and documents reflecting income of The Quality Engraving & Electrotype Company from the sale of electric current in the building at 424 Commercial Square, Cincinnati, for the period from November 1, 1948, to date, and reflecting all of the payments made by The Quality Engraving & Electrotype Company to The Cincinnati Gas & Electric Company for electric current during the period November 1, 1948, to date, and also records, memoranda or documents reflecting the volume of separate use of electricity by each of the tenants in the building at 424 Commercial Square, Cincinnati, including The Quality Engraving & Electrotype Company, for the period November 1, 1948, to date, and also all records, memoranda or documents reflecting billings for electricity made by The Quality Engraving & Electrotype Company to other tenants of the building in 424 Commercial Square, Cincinnati, during the period November 1, 1948, to date. Did you bring those various records?
“A. For the reason that it was private, privileged business in which the plaintiff has no concern other than infringing, see, upon my rights, for that reason it is privileged business, it is my business in which he has no interest. 1 definitely refuse to answer.
“Q. 1 take it that you did not bring those?
“A. I did not bring the records, I brought none of the stuff you mentioned there, I have nothing with me outside of my person.
“Q. I will request of you that you immediately proceed to produce those books, records, memoranda and documents at this tirpe, as requested in the subpoena.
“A. I will refuse to do so for the reasons mentioned heretofore.
“MR. SOLINGER: (To the notary) Miss Brown, I ask you as notary conducting this deposition to repeat to the witness the request that I have just made and in the event of his failure thereupon to comply, to proceed with proceedings in contempt for the refusal of the witness.
“A. You can dispense with reading it, my answer will be the same.
“MR. BADER: Let the record also show in addition to the reasons given by Mr. Deye for failing to bring the records as requested is that the records are privileged, they are the private property of The Quality Engraving & Electrotype Company and they are the secret records of the company, and that the production of the records is irrelevant and immaterial as far as the issues in this case are concerned and not pertinent thereto. Also, it would create an unusual and extraordinary burden on the witness to deliver those records to this office.
“Q. Mr. Deye, I understand that some of those books are of some bulkiness, is that correct?
“A. Well, it all depends what you want; sure, the books of any corporation are of size.
“Q. Now, would it be satisfactory with you and would you be willing to give us the opportunity if Mr. Marks or I or some other representative of Mr. Marks examined those books, records, memoranda and documents in your office?
“A. Absolutely no.
“Q. You would not make them available to Mr. Marks or his representative in your office?
“A. Not unless I am legally compelled to do so.”

Without any further order of the notary an order of commitment was issued and a habeas corpus proceeding was instituted in which the Common Pleas Court sustained the commitment. From such judgment, this appeal on questions of law is taken.

In the case of In Re Martin, Jr., 141 Oh St, 87, it is stated in the fourth paragraph of the syllabus:

“A witness who is not a party has no legal right, upon the taking of his deposition, to refuse to answer any question, upon the advice of his attorney, merely because the attorney believes that the testimony sought is irrelevant, incompetent or immaterial.”

Now, it is to be noted that the deposition of this witness was taken “as on cross-examination” and while the president of the corporation is not the defendant corporation, still the corporation speaks through its officers and if their evidence is taken on cross-examination they should have all the privileges of a party, including the right to question the relevancy of books and papers required to be produced, which are the property and within the privilege of the corporation. It is the corporation-defendant that is speaking through its President in questioning the relevancy of the books and papers demanded.

Whether further development of the original action may sustain the right to an accounting, it is perfectly manifest that, at the time the deposition was taken, no facts were alleged showing the existence of such right. The facts alleged in the petition show nothing that would entitle the plaintiff to pry into the relations existing between the defendant and the Cincinnati Gas & Electric Company, or its co-tenants.

No more typical case could be presented illustrating the injustice of requiring a corporation to produce through a subpoena duces tecum issued to an officer, a mass of books and papers wholly irrelevant to any issue that could be presented by the pleading in existence at the time the subpoena was issued.

While the right of the notary to pass upon matters of relevancy and materiality may be limited and his obligation to commit mandatory, certainly, when it is made to appear to the court upon a habeas corpus proceeding that the books and papers involved have no relevant connection with the issues presented by the pleadings, it would be a travesty on justice if a court should be required to sustain a commitment based upon a refusal to produce that which it, as a court, would be bound to exclude as not being material and relevant evidence.

The last expression of the Supreme Court in any way relevant to the issues here presented is found in In Re Keough, 151 Oh St, 307, at page 312 of the opinion:

“Petitioner maintains that there is a real and valid distinction between a subpoena ad testificandum and a subpoena duces tecum, but we need not pass upon the question involved in his thesis for reason that we hold, on authority of the Hyde case, that the information required in the subpoena involved here is pertinent in the Gebauer case.
“The identity of the operators of a transportation vehicle involved in an accident is relevant in an action concerning such accident by one who claims to have been hurt therein. The kind of person an operator is, with reference to his competency or lack thereof or training or lack thereof, bears directly upon the question of the due care of the transportation company with reference to the operators to whom it entrusts its vehicles.
' “We are not holdng that an accident record of such an operator would shed any light upon his competency or incompetency, because that would require a collateral investigation as to the cause of other accidents not concerned with the one on trial.
“Assuredly it would be pertinent to a plaintiff's case, in the trial of a negligence action as the result of an accident in which a public transportation vehicle was concerned, to have information as to what vehicle was involved, as to its schedules on the day of the accident and as to its route. All these matters have a direct bearing upon the question of the operating speed.
“Since petitioner’s whole argument with reference to §11551 GC, is bottomed upon a question of relevancy, Gebauer was entitled under that section to the information he seeks in the subpoena with which the present case is concerned.”

See, also: Opinion, page 310.

The witness, having been called as on cross-examination, being the president of the defendant corporation, had the right to question the, relevancy and materiality of the books and papers of the defendant corporation which he was ordered to produce.

Although the witness in denying the right of the notary to require production did not use the terms “relevancy and materiality” he, in effect, questioned such right upon these grounds

Other than the original subpoena, there is also no order of the notary to produce the records in question.

For the reasons given, the judgment of the Common Pleas Court is reversed and the petitioner, Charles E. Deye, is released from custody, as prayed in the petition.

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


source: Caselaw Access Project

author: By HESS, J.

license: Public Domain

text:
    HILL, Exrx. v. HARRIS, et al.
    Common Pleas Court, Hamilton County.
    No. A-107696
    Decided June 11, 1948.
    Paxton & Seasongood, Cincinnati, for plaintiff.
    Sol Goodman, Cincinnati, for defendant.
   OPINION

By HESS, J.

This matter came on to be heard on the demurrer of the defendant to the reply to the answer of the defendant, Samuel L. Harris, and was submitted to the court.

Three other causes are pending in this court against Samuel L. Harris and Robert Harris, a minor, being cases numbered on the docket of this court A-107697, A-107698 and A-107699, all of which cases grow out of an accident which occurred on the 31st day of July, 1947, at Banning Road and Colerain Pike in the County of Hamilton, Ohio. There is a demurrer filed in each of the cases and the same question of law is involved in each case.

In order that there be no question concerning the issue presented to the court by the filing of the demurrer, the amended petition, the answer of the defendant, Samuel L. Harris, and the reply to the answer of Samuel L. Harris are quoted in their entirety.

“Now comes Fern L. Hill and says she is the duly qualified, appointed and acting Executrix of the estate of Roy R. Hill, having been appointed such Executrix by the Probate Court of Hamilton County, Ohio; that the defendant, Robert Harris, is a minor who was 16 years of age at the time of the accident hereinafter referred to, that the defendant, Samuel L. Harris, is the father of said Robert Harris and the person who signed the application of said Robert Harris for an operator’s license for a motor vehicle, that the defendant, Robert Harris, did not deposit nor was there deposited upon his behalf proof of financial responsibility as provided in §6296-10(c) GC, and that, by reason thereof, and in accordance with the laws of the State of Ohio, said Samuel L. Harris became jointly and severally liable with said Robert Harris for all damages caused by said Robert Harris due to his negligence or wilful misconduct in the operation of motor vehicles.

Plaintiff further states that her decedent, Roy R. Hill, died on July 31, 1947, as the result of the careless and negligent and unlawful operation, as hereinafter set.forth, of a certain Oldsmobile Sedan owned by the defendant, Samuel L. Harris, and operated by defendant, Robert Harris, and that said decedent was survived by his wife, Fern L. Hill, and his minor son, Rodney R. Hill, being his sole heirs at law and next of kin, for whose benefit and on whose behalf this action is brought pursuant to the statutes of the State of Ohio in such cases made and provided.

For her cause of action against the defendants, plaintiff says that on July 31, 1947, at approximately 7:30 o’clock P. M., plaintiff’s decedent, Roy R. Hill, was riding as a passenger in the rear seat of his Pontiac Sedan which was then being driven by his son, Rodney R. Hill, and that said car was at that time going in an easterly direction over Banning Road approaching the intersection of Colerain Pike; that as said Pontiac automobile approached Colerain Pike it was brought to a full stop by the driver thereof, in accordance with the traffic signal erected at that point, and that the driver thereof, after looking in both directions and ascertaining that there was no approaching traffic either from the north or south on Colerain Pike, proceeded to cross Colerain Pike in order to continue into Banning Road on the east side of said Colerain Pike.

At said time and place, defendant, Robert Harris, who was driving an Oldsmobile Sedan owned by defendant, Samuel L. Harris, northwardly on Colerain Pike at a speed in excess of seventy (70) miles per hour, approached said intersection of Banning Road. Because of the contour of the ground which causes a dip in Colerain Pike several hundred feet south of the interséction of Banning Road, the view of the intersection by persons approaching on Colerain Pike from the south is limited to such several hundred feet. Notwithstanding this fact, the defendant, Robert Harris, did not slacken speed or sound any warning of his approach to said intersection until he was approximately one hundred and fifty (150) feet from said intersection, at which time the car in which the plaintiff’s decedent was riding as a passenger had already entered into the intersection and was then crossing it.

Due to the excessive speed at which the Oldsmobile car driven by defendant, Robert Harris, was travelling, said Robert Harris was unable to stop or to control his said car after he had seen the car in which plaintiff’s decedent was riding in the intersection, with the result that, upon application of its brakes, defendant’s said car skidded into the intersection and into the right rear side of the car occupied by plaintiff’s decedent which had passed almost through the intersection at the time of said collision. As a result of said collision, said Roy R. Hill suffered such serious injuries that he died shortly thereafter.

Plaintiff says that the collision hereinbefore described and the resulting death of Roy R. Hill was caused solely by the negligence and carelessness of the defendant, Robert Harris, which negligence and carelessness consisted in (a) driving at a speed of over seventy (70) miles an hour, which speed was not only in excess of the legal speed limit on Colerain Pike at this place but was also unreasonable and improper in view of the conditions of the road and of traffic at the time and place; (b) in failing to keep his said car under proper control so as to be able to bring said ear to a stop within the assured clear distance ahead; (c) in failing to give warning of his approach to the intersection of Banning Road; (d) in failing to slow down his said car as it approached the said intersection, and (e) in operating said car without due regard for the safety and rights of the drivers and occupants of other vehicles.

Plaintiff says that all of the aforesaid negligence of the defendant, Robert Harris is imputed to defendant, Samuel L. Harris, by reason of the provisions of §6296-10 GC.

Plaintiff further states that the said Roy R. Hill, at the time of the accident and his resulting death, was a man 56 years of age; that he was in good health and of able body; that he was industrious and diligent and that he was and had been regularly employed by the Texas and Pacific Railway Company for many years and that his earnings were at the rate of approximately Five Thousand ($5,000.00) Dollars per year.

Plaintiff says that her decedent, the said Roy R. Hill, was survived by Fern L. Hill, his wife, and Rodney R. Hill, his minor son, such being his sole heirs at law and next of kin, and that said heirs at law and next of kin, by reason of the accident hereinbefore described and the resulting death of said Roy R. Hill, have been deprived permanently of the support, services, care, attention, companionship and counsel of the said Roy R. Hill to their damage in the sum of One Hundred Thousand ($100,000.00) Dollars.

WHEREFORE, plaintiff prays judgment against the defendants in the sum of One Hundred Thousand ($100,000.00) Dollars and for her costs herein expended.”

“Comes now the defendant, Samuel L. Harris, and for answer to the amended petition admits that he is the father of Robert Harris, a minor, and that he signed the application of said Robert Harris, for an operator’s license for a motor vehicle and that said Robert Harris was operating a motor vehicle on July 31, 1947, which was involved in a collision with an automobile operated by one Rodney R. Hill at the intersection of Banning Road and Colerain Pike.

Further answering this defendant denies each and every allegation contained in the amended petition.

For a second defense, Samuel L. Harris, states that on November 2nd, 1946, he signed an application made by Robert Harris, for an operator’s license and that thereafter operator’s license was issue to said Robert Harris.

Defendant further states that at all times during the existence of said operator’s license in the name of Robert Harris, he carried and maintained a policy of insurance, such policy of insurance fully complying with all the requirements of §6298-5 and §6298-7 GC. This defendant further states that on July 31, 1947, said policy No. AF-8665, was in full force and effect, his policy being issued by The Franklin National Insurance Company of New York, covering liability insurance and bodily injury and property damage in such amount as is required by §6298-5 GC and contains such other provisions as required by §6298-7 GC.

This defendant further states that in accordance with the provisions of §6298-6 GC, proof of ability to respond in damages was submitted to the Hon. Edward T. Fogo, Registrar, Bureau of Motor Vehicles, Columbus, Ohio, and that by reason of the foregoing facts, affiant believes that under Paragraph (c) of §6296-10 GC, he is relieved from any liability and any damage caused or arising out of said collision, of Robert Harris, and Rodney H. Hill.

Defendant states that by reason of his complying with the provisions of said statute he is entitled to be dismissed as defendant from this action.

WHEREFORE, having fully answered this defendant prays the court that the action against him may be dismissed and that he may go hence without day, and for his cost herein expended.”

“Now comes the plaintiff and for reply to the second defense óf the answer of defendant, Samuel L. Harris, admits that said defendant had in effect on July 31, 1947, a policy of insurance issued by The Franklin National Insurance Company of New York providing certain public liability and property damage coverage. Notwithstanding that said policy may have contained the provisions and may have been in the amount required by the Financial Responsibility Law of Ohio (§§6298-1 to 6298-25 GC, inclusive) as alleged by said defendant, plaintiff avers that said defendant did not comply with the provisions of §6296-10 (c) GC in that said defendant did not, on behalf of his son, the defendant, Robert Harris, deposit or maintain at any time prior to, on or since July 31, 1947, with the Registrar of the Bureau of Motor Vehicles at Columbus, Ohio, proof of financial responsibility with respect to the operation of any motor vehicle, and that by reason of his failure so to do, the defendant, Samuel L. Harris, is not relieved of the liability imposed upon him under §6296-10(b) GC and is not entitled to be dismissed as a defendant in this action.

WHEREFORE, plaintiff prays as in her amended petition.”

Apparently the question presented by the demurrer in this cause is one of first impression in Ohio.

The real question for the court to determine is whether the failure of the minor, son of Samuel L. Harris, or Samuel L. Harris himself to deposit and maintain an insurance policy or other security with the Registrar of Motor Vehicles, as provided by §6296-10 (c) GC, still permits Samuel L. Harris to limit his liability to the amount of the insurance policy he procured but did not deposit and maintain with the Registrar. It will be observed that the plaintiff’s claim is for' One Hundred Thousand ($100,000.00) Dollars and if the court should hold that Samuel L. Harris has complied with the statute with reference to the procuring of a license by his minor son and had complied with the conditions of the Financial Responsibility Act, then it would appear that Samuel L. Harris would be entitled to limit his liability.

Sec. 6296-10 GC is one of the sections of the Driver’s License Law of Ohio (§§6296-1 to 6296-35 GC, inclusive), and provides as follows:

Sec. 6296-10 GC “Operator’s or chauffeur’s license issued to minor, when; liability, (a) The registrar shall not grant the application of any minor under 18 years of age for an operator’s or chauffeur’s license unless such application is signed by either parent, guardian or other person having custody of the applicant, or in the event there is no parent or guardian then by a responsible person who is willing to assume the obligation imposed under this act.
(b) Any negligence or wilful misconduct of a minor under 18 years of age when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or willful misconduct except as otherwise provided in the next succeeding paragraph.
(c) In the event a minor deposits or there is deposited upon his behalf proof of financial responsibility in respect to the operation of a motor vehicle owned by him, or if not the owner of a motor vehicle, then with respect to the operation of any motor vehicle, in the form and in the amounts as required under §§6298-1 to 6298-25, inclusive, GC, then the registrar may accept the application of such minor when signed by a parent, guardian or other responsible person, and while such proof is maintained such parent, guardian or other responsible person, shall not be subject to the liability imposed under the preceding paragraph of this section.
(d) Any person who has signed the application of a minor for a license may thereafter surrender to the registrar the license or temporary instruction permit of such minor and request that same be cancelled. Thereupon the registrar shall cancel such license or temporary permit and the person who signed the application of such minor shall be relieved from liability imposed under this act.
(e) When a person under eighteen years of age holds a chauffeur’s license and is operating a motor vehicle as a chauffeur, the person who has signed his application shall be relieved of the liability imposed by this section, but nothing herein shall be construed to relieve the employer of a chauffeur under eighteen years of age of the liability that arises out of such employment.”

Paragraph (c) of the foregoing section incorporated §§6298-1 to 6298-25, inclusive, GC, with relation to the Drivers’ Financial Responsibility Act. The Financial Responsibility Law provides the method by which one may limit his responsibility with relation to the operation of an automobile and also provides definite procedure to be followed in procuring a driver’s privilege for a minor.

By his demurrer to the reply, the defendant, Samuel L. Harris admits that he has never deposited or maintained with the Registrar of Motor Vehicles of Ohio, proof of the financial responsibility of his son, Robert Harris, in respect to the operation of a motor vehicle. For the purpose of the demurrer, the court assumes that the defendant had in effect at the time of the accident, a property damage and public liability insurance policy containing provisions required by the Ohio Financial Responsibility Law. Secs. 6298-1 to 6298-25 inclusive, GC.

In effect, the position of Samuel L. Harris is that notwithstanding the provisions of §6296-10 GC, the fact that he had such a liability policy is sufficient to relieve him of the personal liability provided by Paragraph (b) of that section, even though he did not deposit or maintain said policy with the Registrar of the Bureau of Motor Vehicles.

It must be conceded that in the absence of legislation to the contrary Samuel L. Harris, as the father of Robert Harris, and in the absence of agency, would not be liable for a tort committed by his son. Since the Legislature has spoken on the subject, the language of the statute enacted by it changing the common law rule must be strictly construed. Where an exception is grafted upon the general terms of a statute, that exception should be strictly construed and “must be governed by the familiar rule that the exclusion clearly made in the exception only emphasizes the inclusion of all other things relative to the statute which are not so excluded.” (See Kroff v. Amragin, 94 Oh St, 282 at page 286 and State ex rel. Keller v. Forney, 108 Oh St 463.)

It is observed from a reading of the Driver’s License Law Act and the Financial Law Act that the Legislature intended to permit minors and certain other persons mentioned therein to operate á motor vehicle only upon compliance with certain specific conditions stipulated in the acts. The Legislature in plain and unambiguous terms has said that if parents wish their minors under 18 years of age to operate motor vehicles, they shall, (1) be jointly liable with the minor for any negligence or willful misconduct that he may be guilty of in the operation of an automobile, or (2) obtain an insurance policy or other security as required by the Financial Responsibility Law of Ohio and deposit and maintain it with the Registrar of Motor Vehicles, and (3) in the absence of an insurance policy may deposit bonds or other security to take the place of such insurance policy, in which event they would not be subject to unlimited liability. The depositing and maintaining of the insurance policy or cash or surety bonds as provided by the statute must have been the deliberate intention of the Legislature.

It is interesting to note that Paragraph (c) of §6296-10 GC, after requiring the deposit of the insurance policy or other security as required in the Financial Responsibility Act, further provides that “then the Registrar may accept the application'of such minor when signed by a parent.” It is discretionary with the Registrar of Motor Vehicles as to the acceptance of an insurance policy or other financial responsibility from the minor, parent or sponsor.

It is difficult for the court to concede how it would nullify one portion of the statute with reference to depositing the insurance policy or other security merely because the policy had been purchased any more than it would be consistent to say that the whole provision establishing a rule of conduct contrary to the common law is not to be condoned. The au~ thority of the Legislature to modify rules of law established by the common law is so well established that it needs no further comment. The Legislature of Ohio has made the operation of a motor vehicle a privilege and it is not an inherent right. To be privileged to operate a motor vehicle in Ohio one must conform to the requirements of law which establish that privilege.

The defendant, Samuel L. Harris failed to deposit and maintain an insurance policy with the Registrar of Motor Vehicles; he failed to establish proof of financial responsibility as provided by the statute; he failed to permit the Registrar of Motor Vehicles to exercise any discretion in accepting or approving any financial responsibility on his own behalf or on behalf of his minor son.

The court is of the opinion that §6296-10 GC is a clear unambiguous statute, and that in order for the defendant, Samuel L. Harris to limit his liability for any negligence or willful misconduct of his minor son while he was operating an automobile under the age of 18, he was obliged to conform with all the provisions of that statute which includes the deposit and maintenance of proof of financial responsibility.

Entries may be presented in the above styled cases overruling the demurrers.


author: By THE COURT:

text:
    CARSON, et, Plaintiffs-Appellees, v. BEATLEY, Defendants-Appellants.
    Ohio Appeals, Second District, Champaign County.
    No. 115.
    Decided December 1, 1948.

      Brand & Wagner, Urbana, for plaintiffs-appellees.
    Seibert & Seibert, Urbana, for defendants-appellants.
   OPINION

By THE COURT:

This is an appeal on questions of láw from a judgment entered on the verdict of a jury finding that the purported last Will and Testament of Ida Carson, deceased was not her last will and testament.

Nine errors are assigned, the first of which relates to irregularities in the court and jury and abuses of discretion by the court, by which the appellants were prevented from having a fair trial. Under this heading it is asserted, (one) that the court erred in dismissing prospective jurors from the panel without conforming to the provisions of §11419-46 GC that a juror to be excused should state his reason in open court and failing to observe §11419-48 GC in that the judge, himself, selected the talesman necessary to make up the panel without a motion therefore by either party having been made, and (two) in limiting to thirty minutes the final argument of counsel for the defendant to the jury. The first of these contentions is not well made because the irregularities, if any, were not made the subject of objection or exception nor called to the attention of the trial judge in any manner whatever by counsel prior to the impaneling and completion of the jury. The second is not made for like reason, viz; that no objection nor exception was noted to the act of the court. Without such bases the claimed errors are not exemplified and not presented on this appeal.

The second, third, and fourth assignments involve the action of the court in the admission and rejection of evidence. It is especially urged that the court erred in permitting Dr. Vogt Wolfe to testify over the objection of appellants that his statements were privileged communications under §11494 GC.

The factual development upon the testimony of Dr. Wolfe is somewhat different from that which is found in any of the Ohio cases. For fifteen years before the death of Mrs. Carson, Dr. Wolfe had been the family physician of the Carsons and had treated her at intervals until a comparatively short time before her death. In the late summer and fall of 1946, the doctor had called upon Mrs. Carson approximately twenty times and he had opportunities, no doubt, to observe Mrs. Carson’s mental condition on his professional visits whether or not he was treating her for any impairment of her mind. At one place in his testimony he says that his conclusions are based “partly on what he knew was the matter, whatever her trouble was,” and he says that the affliction affecting her mind was senile dementia. After developing the professional relations between the doctor and his patient', he was requested to state what her physical and mental condition was. Upon objection the question was restricted to her mental condition and he testified very fully and to the fact that she was not qualified to make a will when it was made. The notable deficiency in Dr. Wolfe’s testimony is that at no place either upon direct or cross-examination does it appear whether or not he was treating her for senile dementia. However, from other places in the record, and particularly from the testimony of Alice Beatley, it develops that the doctor attended Mrs. Carson after a fall which she suffered in August, 1946; on an occasion when she took her stimulant instead of a tonic which had been prescribed, and at another time for a digestive disturbance.

The cases in Ohio respecting the admission or rejection of evidence as to privileged communications may be classified generally in three groups; One, those in which it is clear that the testimony sought to be introduced related to physical or mental conditions which was material to an issue, and as to which the physician in that relation has secured information from examination of, communications between or from the patient during the professional visits of the doctor to his patient. Ausdenmoore v. Holzback, 89 Oh St 381; Baker v. Industrial Comm., 135 Oh St 491, 21 N. E. (2d) 593; Industrial Comm. v. Strassel, 11 Oh Ap 234, 30 O. C. A. 460; Prudential Insurance Co., v. Heaton, 20 Abs 454; Brotherhood of Rd. Trainmen v. Daly, 11 O. C. C. N. S. 464; John Hancock Mutual Life Ins. Co. v. Jennings, 17 Abs 583; Russell v. Penn. Mutual Life Ins. Co., 70 Oh Ap 113, 41 N. E. (2d) 251; McKee, Admr. v. New Idea Inc., 36 Abs 563, 44 N. E. (2d) 697.

Second, those in which the physician, although attending the patient professionally, secured the information to which he testified by general observation independent of his professional relationship. Insurance Co. v. Howle, 68 Oh St 614, 68 N. E. 4; Heiselman v. Franks, 48 Oh Ap 536, 194 N. E. 604.

Third, those wherein the testimony was related to a mental condition and the physician was attending the patient for a physical illness not connected with or related to any mental ailment. Meier, et al v. Pierano, 76 Oh Ap 9, 62 N. E. (2d) 920; Olney v. Schurr, 21 Abs 630.

The authority most relied upon by appellees and which was cited to the court at the time the evidence was admitted is that of Meier, et al. v. Pierano, supra. Judge Doyle in the opinion in this case says that the professional relationship had no connection with any mental disorder of the patient to which the physician testified. To like effect is the holding of this court, although no member of the court, as now constituted, participated, in Olney v. Schurr, supra. It should be said that the Supreme Court has not ruled unless in the case of Insurance Co. v. Howle, supra, or expressed any opinion as to the soundness of the judgment in the Meier and Olney cases. See opinion of Barnes, Judge, in John Hancock Mutual Life Ins. Co. v. Jennings, supra, in which he implies that Insurance Co. v. Howle, supra, has been in effect, reversed by Ausdenmoore v. Holzback, supra. See, also, critical note on Heiselman v. Franks, supra, in 2 O. O. 389.

If it may be said that the illnesses for which Dr. Wolfe treated Mrs. Carson were those which are mentioned by Alice Beatley, then his testimony was admissible under the authority of Olney v. Schurr, and Meier v. Pierano. Upon his own testimony, it may not be said whether he was treating Mrs. Carson for physicial or mental illness, although any information which he received respecting her condition, physicial or mental, was gotten only during his professional visits.

At common law there was no privilege accorded a patient as to any communication made to him by his physician. Such right is only assured by statute, as in Ohio. Before the privilege may be available it must appear that the testimony under consideration comes clearly within the terms of the statute, which must be strictly construed. Weiss v. Weiss, 147 Oh St 416; 34 O. O. 350, 72 N. E. (2d) 245.

We cannot say upon this record that it clearly appears that the testimony which was admitted comes within the privilege accorded by the statute. The most that could be said is that upon the doctor’s statement, the evidence may or may not have been the result of a privileged communication. Upon Mrs. Beatley’s testimony it was properly held to be admissible. In the situation developed we hold that the right to the privilege not being made definitely to appear it was not erroneous to receive the testimony over the objection of appellants.

As the question of privilege is the only error of substance assigned, without further discussion, we hold that the judgment should be affirmed. It will be so ordered.

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


text:
    CINCINNATI, (City) Plaintiff-Appellee, v. LUCKEY, Defendant-Appellant. CINCINNATI, (City) Plaintiff-Appellee, v. WARREN, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    Nos. 7121, 7122.
    Decided July 5, 1949.

      Ralph E. Cors, Cincinnati, for City of Cincinnati.
    Waite, Schindel & Bayless, Philip J. Schneider, Cincinnati, David P. Tarbell, for Frank J. Luckey and Millard R. Warren.
   OPINION

By ROSS, PJ.:

These appeals upon questions of law from two judgments of the Municipal Court of Cincinnati and considered together in that they involve the same questions of law and the facts are identical, except that there are different defendants, who were respectively the engineer (No. 1721) and conductor (No. 1722) of a freight train, which it is charged blocked passage over a street in the City of Cincinnati, intersecting the railroad tracks of the Baltimore & Ohio Railroad, for more than ten minutes, contrary to the provisions of an ordinance of such City. Both defendants were found guilty of violating the provisions of such ordinance.

The defendants-appellants claim (1) that the ordinance invades the area of legislative power, assumed by the General Assembly in enacting §7472 GC, and that such ordinance is, therefore, unconstitutional, by reason of conflict with the provisions of Art. XVIII, Section 3 of the Ohio Constitution; (2) that the ordinance has the effect of placing a limitation upon interstate commerce, contrary to the provisions of Art. I, Section 8 of the Constitution of the United States, and that it is, therefore, unconstitutional; and, (3) that enforcement of the provisions of the ordinance constitutes an unreasonable exercise of the police power vested in the City, and that its provisions should not, therefore, be enforced in the instant cases.

There is no conflict in the evidence.

The freight train in question, operated by defendants, moving slowly over the tracks of the Baltimore and" Ohio Railway Company, where such tracks intersect Este Avenue in the City of Cincinnati, blocked such street crossing for more than ten minutes. The train consisted of eighty-seven (87) cars. The speed of the train was estimated at 3 to 5 miles per hour.

Prom the evidence, it appears that the train originated in St. Louis, and that some of the cars were destined for points outside of Ohio.

Motions made at the conclusion of the evidence for dismissal of the defendants, and motions for new trials were overruled, after the finding of guilty and sentence.

Considering the claims of the defendants-appellants, in order, in Art. XVIII, Section 3 of the Ohio Constitution it is provided:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

In §7472 GC, it is provided:

“A person, or corporation, or a conductor of a train of railroad cars, or other agent or servant of a railroad company, who obstructs, unnecessarily, a public road or highway authorized by any law of this state, by permitting a railroad car or locomotive to remain upon or across it for longer than five minutes, or permits timber, lumber, wood, or other obstructions to remain upon or across it to the hindrance or inconvenience of travelers, or a person passing along or upon such road or highway, shall forfeit and pay for each offense, not less than two dollars, nor more than twenty dollars.”

In Capelle v. B. & O. Rd. Co., 136 Oh St, 203, at page 208 of the opinion it is stated:

“Statutes almost identical in language with present §§7473 and 7473 GC, have existed in Ohio since 1853. In relation to railroads, the expressed object is to penalize railroad employees for permitting a railroad car or locomotive to obstruct a highway, unnecessarily, for longer than five minutes to the hindrance or inconvenience of travelers. The underlying purpose is to facilitate the movement of traffic on highways and to discourage unnecessary blockades, causing congestion and delay.”

In Section 410-8 of the Ordinances of the City of Cincinnati, in full force and effect at the time involved in these-prosecutions, it is provided:

“It shall be unlawful for any railroad company to operate its locomotives, cars or trains of cars in such manner as to block a street crossing for a period of more than ten minutes. Violations of this section shall be punished according to the penalties of Section 410-13.”

In Section 410-26 of the ordinances of the City of Cincinnati, also in full force and effect at the times herein involved, it is provided:

“It shall be unlawful for any person or corporation to operate or run any locomotive or railroad car on or across any street, road, lane or alley, at the grade thereof, at a greater speed than ten (10) miles per hour.”

It has been firmly established that where the legislature has assumed a jurisdiction of an area of the police power, no municipality may enter such area with municipal legislation in conflict with the acts of the legislature expressing such exercise of power. 28 O. Jur., “Mun. Corp.” Section 277, p. 442.

The subject of the ordinance forming the basis of the prosecutions involved and the statute, §7472 GC, is the blocking of streets or roads.

The City and the State have each exercised inherent police powers to protect the public from interference with a reasonable right to proceed upon streets crossing railroad tracks. In each form of legislation the object and purpose is the same. The specific formula differs somewhat in terms, but in the end it is obvious that the aim of each form of legislation is to secure as nearly as possible uninterrupted passage over railroad crossings. The statute applies to a train remaining upon a crossing, the ordinance applies to the operation of a train over a crossing.

The statute applies to the unnecessary blocking of the crossing. The ordinance provides a penalty for blocking, regardless of necessity produced by incidents of railroad operation.

The statute limits the time of stopping to five minutes; the ordinance permits a ten minutes interruption of street traffic.

In the widest sense, the term “operate” might include starting, running, and stopping, and so construing the word it might be that a conflict in exercise of police power between the legislature and the municipal corporation would exist.

The duty rests upon courts considering the acts of legislative bodies to so construe the language employed as to give effect, if possible, to the provisions therein contained. 37 O. Jur., “Statutes” Section 344, p. 624.

The same rule applying to the construction of statutes applies to construing the ordinances of a City.

It may be assumed that the Council of the City of Cincinnati was aware of the provisions of §7472 GC, and did not intend to legislate upon a subject fully covered by that statute. In the use of the word “operate” it may, therefore, be presumed that Council intended to reach a different situation than that covered by the statute, to-wit: permitting a train or portion thereof “to remain” upon a crossing. The effect of the ordinance is to govern the speed of the train imposing by its limitations a minimum speed when crossing a street, just as Section 410-26, supra, of the Cincinnati ordinances prescribes a maximum speed.

These considerations require a conclusion that Council has not usurped a function assumed by the legislature.

The same considerations, however, involve the second claim of appellants — that it, that the effect of these two ordinances —Sections 410-8 and 410-26 — is to constitute a regulation of interstate commerce. Any limitation placed on the length of a train engaged in interstate commerce, imposed by a council of a municipal corporation, would obviously be an interference with interstate commerce. The Supreme Court of the United States has held such a limitation beyond the power of a state and obviously such limitation would be beyond the power of any political subdivision thereof. Southern Pacific Co. v. Arizona, ex rel., etc., 325 U. S. 761. The second paragraph of the syllabus is:

“The Arizona Train Limit Law (Arizona Code Ann., 1939, sections 69-119), making it unlawful to operate within the State a passenger train of more than fourteen cars or a freight train of more than seventy cars, held, as applied to interstate trains, invalid as contravening the commerce clause of the Federal Constitution.”

Now applying the two ordinances, every train is required to clear the crossing in ten minutes, and yet no train is permitted to travel faster than ten miles per hour, or 60 minutes, or a mile in six minutes. This means that the longest train which could lawfully pass in ten minutes would be a train one and 4/6ths miles long, or as a mile is 5280 feet, a train 8800 feet long. The average length of a freight car is approximately 50 feet, so that any freight train containing more than 176 cars could not pass the crossing in ten minutes, and would violate the provisions of Section 410-8 of the ordinances, and if it went faster than ten miles an hour in order to clear the crossing, would violate the provisions of Section 410-26 of the ordinances.

Considering the two ordinances together which the Municipal Court was required to do, and as this court is also required to do, since it must take judicial notice of that of which the trial court took judicial notice, it must be concluded that the effect of the ordinances is to constitute an interference with interstate commerce, and, under the circumstances existing in these cases, cannot be enforced against the defendants.

The third claim of the appellants is in effect disposed of by these conclusions.

For these reasons, the judgments of the Municipal Court are reversed and the defendants will be dismissed.

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


author: By HORNBECK, J.

text:
    SIEGLE, Plaintiff-Appellee, v. LEE, et, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4093.
    Decided October 13, 1948.

      Carlisle O. Dollings, Columbus, for plaintiff-appellee.
    Milton L. Farber, Samuel L. Zuravsky, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

The appeal is from a money judgment of the Municipal Court in favor of plaintiff and against the defendant in the sum of $375.00 and costs.

The cause was tried to a Judge without a jury and in response to a request the Court made separate findings of fact and law. Findings of fact consist of sixteen paragraphs and findings of law of eight. The appellant sets up and urges five assignments of error in his brief:

(11 That the Court below permitted improper testimony to be offered by plaintiff over defendant’s objections.

(2) The judgment was against the manifest weight of the evidence.

(3) There was a complete failure of proof.

(4) That the judgment was contrary to law.

(5) That the Court awarded excessive damages.

We find the second and third grounds of error not supported. Upon the first ground an examination of the record discloses a wide latitude granted by the Court to both parties in developing their respective theories of the case. Technically, some of the testimony offered by the plaintiff might not be admissible, especially under the strict averments of the petition, but as the evidence was submitted to a Judge who made separate findings of law and fact, and as it was admissible generally on an issue we hereinafter discuss, we find no’prejudicial error in the reception of any of the evidence to which the defendant interposed objection and exceptions.

It is assigned as error that the judgment is excessive. The finding and judgment include the $125.00 which the plaintiff paid to the defendant as tuition for the completed course and $250.00 damages for loss of time spent in class rooms taking the course.

There is no special plea for damages for loss of wages or time but there is a general prayer for $500.00 damages. Defendant during the trial objected to the introduction of any testimony as to the damages for loss of time. The record is meager on the question presented. The only specific testimony on the subject is found at pages 107 and 108 of the bill of exceptions:

“Q. 855. That can’t be considered as a measure of damages, here, Mrs. Siegle. I am asking you what loss of earnings in dollars and cents you have lost from January 23rd to April 2nd by reason of not having a job during that period — have you lost money?
A. Do I have to answer that?
BY MR. DOLLINGS: Q. 856. Yes.
A. Why, I’m asking $500.00 damages.
BY MR. FARBER: Q. 857. Five Hundred Dollars damages for money that you would have made from January 23rd to April 2nd?
A. For the loss of my schooling.
Q. 858. I am talking about money damages from the period of January 23rd up to April 2nd; how much cash earnings did you lose in that period?
A I have never sat down and figured it up.
Q. 859. Well, did you lose any?
A. Well, I didn’t do my housework and things — that was all neglected.
Q. 860. Well, how much is housework worth?
A. It’s worth a lot if you have to pay at the rate of $5.00 a day.
MR. FARBER: I wish to point out to the Court that since these damages were not pled, we have no way of knowing how she measured the damages.
THE COURT: Well, the evidence shows she is a.housewife, and that she transferred her time and efforts from that to this schooling.”

It is not necessary for us to hold that it was imperative that the plaintiff plead her loss of time by way of special damages. General damages are such as naturally and reasonably flow from a breach of the contract. Manifestly, breach of the contract here resulted in the plaintiff losing the time which she had expended in taking the course, the result of which was without benefit to her. But the serious question is whether she has proven any money damage by reason of the fact that she lost many hours of time. The record does not disclose whether or not plaintiff was living with her husband, although it must be implied that she was maintaining a household. The record does not disclose that the plaintiff paid any one for doing the work in her home- which she was prevented from performing. It does not disclose that she was paying for this service, nor that she would have been employed gainfully had she not taken the course in the beauty school. It is our judgment that there is a failure of proof upon which the Court could predicate an award of damages to the plaintiff for loss of time.

Appellant cites 13 O. Jur. 261, to the effect that it was necessary that plaintiff specially aver the damages claimed by her for loss of time. The citation carries no cases to support the text and the law on the subject is not well defined in Ohio.

Much discussion is had in the brief of appellant as to the inadequacy of the averments to support much of the testimony taken. There is considerable basis for this contention, especially as to the evidence relating to the failure to observe the rules and regulations of the State Board of Cosmetology which breach is not averred. However, there is an allegation of the terms of the contract under which in consideration of $125.00 the plaintiff was to receive a one ‘thousand hour course in Marinello Beauty Culture from the defendant at the Marinello Beauty School, 247% S. High Street, Columbus, Ohio, and an express averment that the contract was breached in that the defendant failed to conform to the terms thereof, closed the school and refused to complete the course. This, under the finding of fact No. 7 and other findings of fact, clearly supported the verdict in the amount of the tuition, namely, $125.00.

The testimony relating to the failure of the defendant to give the course prescribed in the Marinello System of Beauty Culture, the failure to observe the rules of the State Board of Cosmetology and the failure and refusal to certify the correct records of the work at the school to the State Board, all were germane on the general issue whether or not so much of the course as plaintiff received was of any value to her as it would reflect upon her right to recover the full $125.00 tuition which she had paid.

The judgment for plaintiff for $125.00 and costs will be affirmed if she enters a remittitur of all of the judgment over and above that sum; otherwise, the motion for new trial will be granted.

WISEMAN, PJ, and MILLER, J, concur.


author: By HAM, J.

text:
    McCORMICK v. LUX.
    Common Pleas Court, Fulton County.
    No. 12729.
    Decided March 17, 1949.
    Reeder C. Hutchinson, Defiance, for plaintiff.
    Hallett & Hallett, Wauseon, for defendant.
   OPINION

By HAM, J.

The plaintiff sues on an account for surgical service rendered defendant’s wife, the petition following the form in Bates’ Pleading and Practice.

Defendant demurs on the ground that the petition does not state a cause of action, and in support of his attack the demurrant stresses these two claims: (1) That the plaintiff must plead that he was duly licensed and thus authorized to perform the service. (2) That the plaintiff must plead either that the service was rendered under a contract with the defendant or other facts establishing that the service was given on defendant’s credit.

In the case of City of Cincinnati v. Cameron, 33 Oh St 336, 356-357, the plaintiff sued the city on an account for service in constructing a hospital. At the trial it developed that the service was rendered under a contract made by a commission acting for the city. Proof of such a contract and of the authority of the commission was received.

The Supreme Court held, opinion by Wright, J., that any evidence could be offered by the plaintiff which tended to establish the validity of the charges in the account. See 33 Oh St at pages 356, 357.

So, in the case at bar, it would seem clear that the plaintiff may offer any evidence which would tend to validate the charges in the account, the absence of supporting allegations in the petition to the contrary notwithstanding.

The demurrer is overruled with exceptions.


author: By THE COURT: By THE COURT:

text:
    O’LEARY, Plaintiff-Appellee, v. BURNETT, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2040.
    Decided March 2, 1949.

      Paul H. Blum, Dayton, for plaintiff-appellee.
    Jacobson & Durst, Eugene B. Bacher, Dayton, for defendants-appellants.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee requesting an order that the appeal bond be increased, to amend the bond and to require additional surety.

A bond was given in the amount of $9,000.00 which was the amount fixed by the trial court. The amount of the judgment and interest at this date approximates the amount of the bond. The court orders the bond increased to $10,000.00

Sec. 12223-14 GC prescribes the conditions of the bond, and in part provides:

“When said judgment is for the payment of money, the bond shall provide that if said judgment is not paid upon final affirmance that judgment may be entered against the sureties on said bond.”

The bond filed herein fails to contain the provision that if judgment is not paid upon final affirmance that judgment may be entered against the surety. The bond is defective in this regard. The court orders a new bond in the amount of $10,000.00 to be given in conformity to the provisions of the statute. Sec. 12223-16 GC.

Inasmuch as a new bond is ordered with sufficient surety, the third ground of the motion to require an additional surety is hereby overruled.

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

ON MOTION TO DISMISS THE APPEAL

No. 2040 Decided March 2, 1949.

By THE COURT:

Submitted on motion of plaintiff-appellee to dismiss the appeal on questions of law and fact; also on motion of plaintiff-appellee to strike from the files the answer brief of defendant-appellant.

The point is made that this is not a chancery action. In his petition the plaintiff alleges that the defendant orally agreed to pay plaintiff 5% of the gross sale price, at least $500.00 each calendar year, on all motors manufactured and sold by the defendant for plaintiff’s decedent; that the defendant agreed to use the trade name “Rotor” on all products which incorporated the motor; that defendant manufactured and sold motors in large quantities; that the defendant failed to use the trade name “Rotor” as agreed; that the defendant made certain payments but refused to make further payments and has refused the plaintiff an accounting. The plaintiff prays for judgment against defendant in the amount of $50,000.00 as damages for failing to use the trade name, for an accounting of all motors sold and for a judgment in an additional amount of money as may be disclosed by such accounting to be due.

The defendant filed an answer in the nature of a general denial and, also, set up the Statute of Frauds and Statute of Limitations.

The character of the action must be determined by the pleadings and the issues presented therein. Whether the action is one at law or in chancery is determined by the primary relief sought. There is no allegation showing, and it is not contended, that a fiduciary or trust relation existed between the parties. It appears that the relation was that of debtor and creditor. The action is essentially one at law for the recovery of money only. The primary relief sought is legal and the equitable redress is merely incidental.

An action for the recovery of money only is an action at law, and where no fiduciary or trust relation exists between the parties, such action will not be converted into an action in chancery on the ground that plaintiff has no knowledge as to the true amount due and requests an accounting to determine said amount. In support of this proposition of law the following authorities are cited: In re Estate of Stafford, 146 Oh St 253, 261; Nordin v. Coulton, 142 Oh St 277; Building Show Co. v. Albertson, 99 Oh St 11, 15, 16; Chapman v. Lee, 45 Oh St 356, 365, 366; Relief Assn. v. Equitable Life Assur. Soc., 63 App. 91, 95; Fitzgerald v. Cleveland Cadillac Co., 17 App. 12, 15; Bonnell v. B. & T. Metals Co., 52 Abs 1, 5, 7.

Motion to dismiss the appeal on questions of law and fact will be sustained. The case will be retained as an appeal on questions of law. An order will be made respecting the filing of a bill of exceptions, assignments of error and briefs in conformity to the provisions of Supplement to Rule VII.

The defendant-appellant failed to file answer brief within ten days after receipt of motion and supporting brief as required by Supplement to Rule III. The record shows that defendant-appellant’s answer brief was filed eighteen days thereafter but contained no acknowledgement that a copy had been given to opposing counsel as required by Supplement to Rule III. This rule serves a salutary purpose and was adopted by the court to expedite the disposition of preliminary motions and demurrers. It must be observed that there is no penalty provided for failure to comply with the rule such as is found in Rule VII. The rule provides that when the ten day period has expired the motion or demurrer together with the briefs which are then on file shall be transmitted by the clerk to the court for disposition.' In practice, counsel who fails to file an answer brief in time may be penalized by his own delay in presenting his brief to the court before a disposition is made of the matter.

The motion to strike will be overruled.

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


author: By CECIL, J.

text:
    LACEY v. NEW YORK CENTRAL RD. CO.
    Common Pleas Court, Montgomery County.
    No. 99120.
    Decided November 9, 1948.
    Jake Deutsch, Dayton, for plaintiff.
    Routzohn, Routzohn & Nevin, Dayton, for defendant.
   OPINION

By CECIL, J.

This case is pending before the court upon a motion of the defendant to require the plaintiff to amend her petition by striking certain allegations therefrom. This motion was previously before this court and sustained in its entirety, without a written decision. At the request of counsel for the plaintiff and upon a memorandum submitted by him, we are reconsidering subdivision four of the motion. By this part of the motion, the defendant seeks to require the plaintiff to strike from her petition the following language:

“That the defendant corporation carelessly and negligently failed to maintain said railroad crossing in a safe manner, and in truth and fact said corporation knew and has reason to believe said crossing as it existed prior to said accident on March 7th, 1948 on or about 2:00 A. M. was being maintained in a dangerous and unsafe condition in the following respects, to wit:
“A. Said corporation did not maintain .a flasher or light system at said crossing.
“B. Failed to maintain a watchman and to maintain gates at said crossing.
“C. The bell set up or established as a warning signal at said crossing is inadequate in that said bell cannot be heard by approaching motorists.
“D. That no signs were established to warn motorists, of the existence of said railroad crossing, driving in the night season.”

The only statutory provision for a warning sign at a railroad crossing is §8852 GC which requires that the railroad company shall erect a sign “with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons to be on the lookout for the locomotive.” Sec. 588 GC provides that the Public Utilities Commission may require additional safeguards at a railroad crossing if, in its opinion, such safeguards are required to insure public safety. There is no allegation in this petition that any order had been made by the Public Utilities Commission for additional safeguards.

We are of the opinion that our conclusion, in the first instance in sustaining this branch of the motion, was correct for the reason that the petition contains no allegation that this crossing was an exceptionally dangerous one and no facts were alleged which would show that it was exceptionally dangerous. All of the cases in Ohio and elsewhere, where the question of additional safeguards may be submitted to a jury for its consideration, are based upon the question of an exceptionally dangerous crossing. The cases use such phrases as “unusual danger,” “exceptionally dangerous,” “more than ordinarily hazardous,” “unusually dangerous,” “more than ordinarily dangerous,” “peculiarly hazardous” and “especially dangerous.”

Since a jury can only consider the question of additional safeguards when a crossing is “more than ordinarily hazardous,” such question of danger or hazard is an issue in the case and must be pleaded. Not only must the pleading contain the allegation of “peculiarly hazardous,” but the facts which make it so must be pleaded.

In the case of Railroad Company v. Kistler, 66 Oh St 326, at page 334, 64 N. E. 130, 132, the court said: “It has sometimes been held, and correctly, that a high rate of speed, when taken in connection with other facts and surrounding circumstances, may become an element or factor in constituting negligence, but when such is the case the facts constituting such surrounding circumstances should be pleaded, so that the court can judge from the pleadings whether the high rate of speed is a proper factor in constituting negligence, because a high rate of speed alone cannot constitute negligence as a matter of law.”

Counsel for plaintiff cites the case of the Dayton & Troy Electric Railroad Company v. Bradford et al., 19 Oh Ap 266, as authority for the proposition that it is not necessary to allege the dangerous condition of the highway as a precedent to alleging negligence based upon the failure to have additional safeguards at the crossing. In this case there was an allegation in the petition as follows: “The collision in question was the result of defendant failing and neglecting to have a watchman at said crossing to warn persons of approach of said cars, and in failing and neglecting to provide other suitable means of warning users of said crossing of approach of said cars.”

On motion of the defendant, the Trial Court refused to strike out this language and the court of Appeals sustained the Trial Court in this refusal. The Court of Appeals said 19 Oh Ap at page 269: “We do not wish to be understood as holding that as to all crossings the question of whether a watch man should be maintained can be submiitted to a jury, but we think in cases of more than ordinary hazard such questions can be properly submitted to a jury.”

The Court of Appeals here considered only the question of whether or not the facts, as proven, were sufficient to warrant the jury in considering that the crossing was one of more than “ordinary hazard.” It did not discuss the question of pleading this issue. We think the Court of Appeals did not decide this issue. At any rate, in so far as it is in conflict with the Supreme Court of Ohio, it does not state the law.

There is another question involved in this pleadiing which, while not necessary to be decided for the purpose of this motion, would be immediately raised upon the filing of an amended petition and is certain to be raised at the time of the trial. That is, what sort of circumstances may be taken into consideration in determining whether or not a crossing is one to be considered “more than ordinarily dangerous”? In this connection may the jury take into consideration all the surrounding circumstances, physical and otherwise of the crossing, or may it consider only those surrounding conditions which are caused by the railroad company itself?

The case of Cleveland C. C. & I. Railroad Company v. Schneider, 45 Oh St 678, 17 N. E. 321, is the leading case in Ohio upon this question. 45 Oh St at page 694, 17 N. E. 326, the court quoted from the opinion in Pennsylvania Railroad Company v. Matthews, 36 N. J. L. 531 as follows: “Under usual circumstances, in the open country, they (railway-companies) can run as many trains, and at as great rate of speed, as are consistent with the safety of their passengers. They are not called on to keep flagmen, under - ordinary circumstances, at cross-roads, nor give any other notice of the approach of their trains than those signals that are prescribed by statute. If greater safeguards are requisite for the safety of the community, and those public agents are to be put under greater restrictions in the exercise of their franchises, such contrivances must proceed from the legislative and not from the judicial power. But, while -I thus say that these additional burdens cannot be imposed by the courts upon these companies, I also say, at the same time, and with quite as much emphasis, that the companies may by their own conduct impose such burdens on themselves. If one of them chose to build its tracks in such a mode as to unnecessarily make the use of a public road which it crosses greatly dangerous, 1 think such company, by its own action, must be held to have assumed the obligation of compensating the public for the increased danger by the use of additional safeguards. The reasonable and indispensable implication is that the railway is to be constructed so as not unnecessarily to interfere with the safe use of the public roads; and if a railroad for its own convenience, curves its track, as it leaves a deep cut within a few feet of a highway, and also sees fit to put up buildings close along such track, and by these means, or either of them, heightening the danger in the use of such highway, it seems to me very clear that such company must be held to have taken upon itself the duty of averting such danger by the employment of every reasonable precaution within its power. On such occasions as this, or whenever the situation is embraced within the principle stated, the presence of a flag-man, or some equivalent safeguard, can be demanded of the company.”

The court then said, with reference to the case before it, 45 Oh St at page 695, 17 N. E. at page 326: “The crossing in question has been recognized by the railroad companies using it as of that exceptionally dangerous character, made so for their convenience in using the tracks as a place for switching cars and locomotives, which created the duty to place gates and gatemen there as a necessary precaution on their part, and we think very properly so; for when a railroad company, for its own convenience, lays its tracks across a generally travelled public street in a populous town or city, over which people, with their teams and vehicles, are accustomed to pass almost continuously, and then uses the tracks as a place for the convenient switching of trains and engines, thus making a yard of a portion of the public street, it is bound to exercise care, proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing; and common prudence requires that it should, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flagmen, or gates and gate-men, at such crossing, or adopt other adequate measures for that purpose; otherwise the street may be permanently obstructed, and its uses destroyed.”

The first syllabus of this case, which states the law upon this subject, is as follows: “Where a railroad company uses the tracks of its road across a generally traveled public street in a populous town or city, for its convenience in the switching of trains, cars, and locomotives, and the crossing is thereby rendered exceptionally dangerous, it is bound to exercise care proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing, and should, in the exercise of such care, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flag-men, or gates and gate-men, at such crossing, or adopt other equally adequate measures for that purpose.”

In the Kistler case, supra, the seventh syllabus reads as follows: “As a railroad company had no control over the trees, weeds, brush, shrubbery and the like, not on its right of way, it is not required to take such things into consideration when approaching a crossing.”

In this connection, the court said, 66 Oh St on page 342, 64 N. E. at page 134: “The court also charged the jury that if trees, shrubbery, or weeds presented an obstruction to view, it required care and caution on part of plaintiff and defendant according to their respective rights as explained by the court. The inclusion of the defendant in this charge was error. The trees, shrubbery, and weeds outside of the right of way, imposed no care or caution upon the company in running its train.”

We are of the opinion that this case supports the fact that the railroad company is not responsible for anything except what it places on the right of way, and the condition that it creates by the use of its trains. See also, Jollay, Admr. v. Pennsylvania Railroad Company, Oh Ap, 38 N. E. 2d 204.

The case of Weaver v. Columbus-Shawnee & Hocking Railroad Company, 76 Oh St 164, 81 N. E. 180, follows the rule laid down in the Schneider case, supra.

The charges of negligence, in this case, were the construction and maintenance by the railroad of a building so situated with respect to its road and highway on which the plaintiff was approaching that it interrupted, in connection with other buildings, a view of the approaching train. The court said, 76 Oh St at page 176, 81 N. E. at page 182: “These signals (bell and whistle) are required at grade crossings in the open country, and the elementary rule that the degree of care to be exercised is determined by the danger to be apprehended should require additional precaution when the crossing is in a denser population, and when structures maintained near the track obscure the view of approaching trains.”

The court then continues: “This view of the subject was taken by this court in Railway Co. v. Schneider, 45 Oh St 678, 17 N. E. 321. The rule upon the subject has been correctly stated to be that: ‘Where the surroundings are such as to render a crossing particularly dangerous, it is the duty of the company to exercise care commensurate with the danger, and especially, if the company has created unusual danger at or near a crossing, it must meet such peril with additional precautions.’ ”

The case of Grand Trunk Railroad Company v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. Ed. 485, is a leading case upon the subject under consideration. This case is cited upon the proposition that the railroad company must take into consideration all of the surrounding circumstances at a crossing in determining whether or not-it is unusually hazardous, and that it is not limited in that consideration only to the things that the railroad company, itself, does to the crossing.

The court says, 144 U. S. on page 421, 12 S. Ct. at page 684, 36 L. Ed. 485: “It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flag-man or gates at a crossinig, it must be first shown that such crossing is more than ordinarily hazardous; as, for instance, that it is in a thickly populated portion of a town or city; or that the view of the track is obstructed either by the company itself, or by other objects proper in themselves; or that the crossing is a much travelled one, and the noise of approaching trains is rendered indistinct, and the ordinary signals difficult to be heard, by reason of bustle and confusion incident to railway or other business; or by reason of some such like cause; and that a jury would not be warranted in saying that a railroad company should maintain those extra precautions at ordinary crossings in the country.”

It must be noted that this case was decided on the law as it existed in Michigan. The court says, 144 U. S. on page 422, 12 S. Ct. at page 684, 36 L. Ed. 485: “If the construction of this statute by the Michigan courts be as claimed by the defendant, of course this court would feel constrained to adopt the same construction, even if we thought it in conflict with fundamental principles of the law of negligence to which we have referred in a preceding part of this opinion, obtaining in other states. * * * But do the Michigan cases cited sustain the defendant’s contention? We think not; but rather that they support the rule laid down by the court below in the charge excepted to.”

It is our opinion that in Ohio before a question of additional precautions can be submitted to a jury, there must be evidence that the crossing is an unusually hazardous one and that it is made so by the railroad company’s use of it. If this is the law in Ohio, then the rule announced by the Supreme Court of the United States, in the case of Grand Trunk v. Ives, supra, is not applicable.

In the case of Lehigh Valley Railroad Company v. Ciechowski, 2 Cir., 10 F. 2d 82, the court holds that the question of additional precautions may be submitted to the jury for its determination. In this case, however, the plaintiff was a passenger on the train and the railroad company was held to the highest degree of care. This distinguishes this case from the one at bar.

The case of Evans v. Erie Railroad Company, 6 Cir., 213 F. 129, has been cited by counsel for the plaintiff. The court, in this case, quotes the rule laid down by the Supreme Court in the Ives case, supra. The particular question we are concerned with here was not decided by the court, but it is indicated that they would probably follow the Ives case. The court says, 213 F. at page 135: “As there must be a new trial, on which the testimony may be more complete than in the record before us, we do not determine whether there was sufficient evidence of an unusually dangerous crossing to justify submitting the question to the jury, adding, however, that, in our opinion, evidence of what we understand to be alleged by plaintiff as a practice of running Erie passenger trains at high speed over this crossing on a downgrade is proper to be taken into account, in connection with other conditions (including the number of tracks, the grade, the amount and kinds of highway travel and railroad traffic, and prior accidents and near accidents so far as shown to have resulted from the nature of the crossing), in determining the presence or absence of an unusually dangerous crossing.”

It is our opinion that the Federal Court would be bound to follow the Ohio rule. At any rate, as between the Federal Court and the Ohio Supreme Court, the rule laid down by the Ohio Supreme Court would be the precedent which this court would be required to follow.

In the case of Cleveland, Chicago, Cincinnati & St. Louis Railroad Co. v. Richardson, 10 O. C. D. 326, it would appear that the court holds that the question of additional precautions, at a railroad crossing, is a question to be determined by the jury.

It is interesting to note, however, that the acts of negligence of which the plaintiff complains involve the use of the railroad tracks. If this court intended to go to the extent indicated by the fifth syllabus, then it is not in harmony with the decisions of the Supreme Court of Ohio.

In a recent case, the Supreme Court said: “The law does not require railroad companies to place signals, gates or flashers at highway crossings unless ordered by the Public Utilities Commission, or unless such crossings are especially dangerous or there exist special circumstances which render such precautions necessary for the public. safety.” Woodworth v. New York Central R. Co., 149 Oh St 543, 80 N. E. 2d 142, 146.

Other cases in Ohio involving the question of additional precautions at railroad crossings, and, particularly dangerous crossings, are: Capelle v. Baltimore & Ohio R. Co., 136 Oh St 203, 24 N. E. 822; Reed, Adm’r v. Erie R. Co., 134 Oh St 31, 15 N. E. 2d 637; Thomas v. Pennsylvania Railroad Company, 70 Oh Ap 191, 45 N. E. 2d 776; Shaffer, Adm’x v. New York Central Rd. Co., 66 Oh Ap 417, 34 N. E. 2d 792; Haughn v. Detroit, Toledo & Ironton R. Co., 25 Abs 123; Lake Shore & Michigan Southern R. Co., v. Patrick Gaffney, 6 O.C.D. 94; Cleveland, C., C. & I. R. Co. v. Louis C. Reiss, 13 Ohio Cir. Ct. R. 405; Lake Shore & Michigan Southern R. Co. v. A. G. Reynolds, Adm’r, 13 O. C. D. 199; Akron & Cuyahoga Falls Rapid Transit Co. v. Erie R. Co., 7 Ohio Cir. Ct. R., N. S., 199; and, Baltimore & Ohio Southwestern R. Co., v. Amelia Maloney, Adm’x, 7 Ohio Cir. Ct. R., N. S., 437.

Upon reconsideration of subdivision four of the defendant’s motion to strike, we are of the opinion that our original ruling was correct. The motion will be sustained and an entry may be drawn accordingly.


author: By MATTHEWS, J.:

text:
    LIPPS, Plaintiff-Appellee, v. LIPPS et, Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7098.
    Decided June 20, 1949.

      Franks & Franks, John A. Scanlon, Cincinnati, for plaintiffappellee, Martha Lipps.
    George F. Zachritz, Cincinnati, for defendant-appellant, The Central Fairmount Building & Loan Company.
    J. W. Brown, Cincinnati, Albert J. Lerner, for defendant-appellant, Frank A. Lipps.
   OPINION

By MATTHEWS, J.:

This is an appeal on law and fact in an action for partition. The plaintiff alleged in her petition that she was the legal owner of an undivided one-half of the described real estate and that the defendant Frank A. Lipps was the owner of the remaining one-half. The Central Fairmount Building and Loan Company was joined as a party defendant, and as to it, the plaintiff alleged that it claimed an interest in the premises by reason of an alleged mortgage from Frank A. Lipps and Martha B. Lipps, husband and wife, for $5400.00, dated November 2nd, 1944, recorded in Mortgage Book 1998, page 500, of the Hamilton County records, which mortgage the plaintiff alleged she did not sign and of which she knew nothing until a short time before filing her petition for partition. In addition to praying for partition, the plaintiff asked that the mortgage be declared null and void as to her and that her title be quieted as against said mortgage.

By answer and cross-petition, the defendant, The Central Fairmount Building and Loan Company, denied the allegations of the petition and affirmatively alleged that persons representing themselves as Frank A. Lipps and Martha B. Lipps executed the mortgage referred to in the plaintiff’s petition, that it was duly recorded as alleged, that it was a purchase money mortgage, that it created a first and best lien upon the premises described to secure an indebtedness of $5400.00, of which a balance of $4305.65 remained due and owing at the time the answer was filed. The prayer was that the mortgage be found to be a first and best lien upon the premises and for all other proper relief.

The defendant, Frank A. Lipps, by answer denied that the plaintiff had any interest in the premises and by cross-petition alleged that he purchased the premises from Conradi and the two Leimans, that through mutual mistake the grantors delivered to him a deed to the premises wherein he and the plaintiff were named as grantees, contrary to the intention of the parties to convey the premises to him and one Genevieve Jeffries (a woman with whom he was living in adultery); that the plaintiff paid no part of the purchase price, had no knowledge of the transaction at the time and that there was no delivery of the deed to her. He prayed that the deed “be corrected so as to make it a conveyance to Frank A. Lipps and Genevieve Jeffries; that the plaintiff be barred of all interest in said premises and for all other relief.”

Now what is the nature of the case .set forth in the cross-petition of Frank A. Lipps?

It is alleged that the deed did not carry out the intention of the parties thereto and in that respect the cross-petition takes on the aspect of an action for reformation, taut if such was the purpose of the pleader, his purpose fails because such an action would be against the grantors, and they are not parties to the action. The cross-petition cannot be sustained as an action to enforce an express trust against the plaintiff, because the allegations expressly contradict the thought of an intention to create a trust. The only other theory is that the purpose was to state a cause of action to enforce an implied trust against the plaintiff, resulting from her acceptance of the title under the circumstances. The burden of proving the circumstances from which the trust is implied rests upon the defendant, Frank A. Lipps. When one person pays the purchase price and the title is taken in the name of another, and such persons are strangers to .one another, equity presumes an intent to create a trust in favor of the person paying the purchase price in the absence of evidence to the contrary. However, this presumption does not arise when it is a husband who pays the purchase price and the title is taken in the name of his wife. The opposite presumption arises under such circumstances. In 40 O. Jur., 279 and 280, it is said:

“It is a rule of almost equal universality of application that the presumption which gives rise to a resulting trust, as discussed in the last section, does not obtain where the payor of the purchase price takes title to the property in the name of a near relative. On the contrary, in this fact situation another presumption is entertained, viz., that of gift or advancement. Thus, in the following situations there is a presumption of a gift, and not of a resulting trust: Where a husband takes title in the name of his wife:”

And at page 282 it is stated that: “The burden of proof is upon the one alleging that the intent was not to make a gift and the proof must be clear and convincing. Such presumption is overcome by proof of an oral agreement by the grantee at the time of the conveyance that he would reconvey to the payor, or a recital in a deed rebutting the purpose to give, or a declaration, at the time of the transaction, by the payor of his purpose. Subsequent declarations by payor are not admissible, but subsequent declarations by grantee are competent to show that a trust was intended. Possession of the property by the payor does not rebut the presumption of a gift: * * *”

See, also, 54 Am. Jur., 160.

We.turn to the evidence to determine what evidence was introduced tending to prove that a trust was intended. While there is some evidence that the defendant, Frank A. Lipps, obtained some money from the sale of an automobile, the title to which was in plaintiff’s name, there is no evidence tracing this money into the fund used to purchase the real estate, and we think the evidence shows that Frank A. Lipps furnished $600.00 to apply on the purchase price and arranged through the real estate broker with the defendant Building Association to loan the balance of $5400.00, secured by mortgage upon the premises. As already noted, this creates no inference or presumption of a trust in favor of Frank A. Lipps or- Genevieve Jeffries in the undivided one-half the legal title to which was conveyed to the plaintiff by the deed.

Frank A. Lipps testified that his intention was to have-himself and Genevieve Jeffries named as grantees in the deed. Neither he nor any other witness testified to any statement of such intent to any one at the time of this conveyance. His secret, undisclosed intent was neither competent nor material.

The evidence shows that Frank A. Lipps left to the real estate broker the task of arranging for the deed and the mortgage. It shows that the real estate broker asked Frank A. Lipps for the name of his wife and he told him that it was Martha B. Lipps, and the broker, we infer, communicated this name to the scrivener, who drafted this deed and mortgage. It is true that the evidence shows that Genevieve Jeffries signed the name “Martha B. Lipps” to the mortgage, but that has no tendency to prove that the scrivener intended that Genevieve Jeffries should be a grantee in the deed or a mortgagor. Beyond question, it was the lawful wife and not the paramour that was intended, and the fact that Frank A. Lipps conspired with Genevieve Jeffries to forge the name of Martha B. Lipps tends to show that he knew it.

The only other significant fact is that Frank A. Lipps had possession of this deed, knowing that his wife was named as co-grantee with him, for three or more years and never took any action to have the mistake, which he now claims, corrected Such laches is not consistent with the claim that he now makes.

On the whole evidence we conclude that the defendant, Frank A. Lipps has failed to prove that he is entitled to any of the relief prayed for in his cross-petition.

The remaining question relates to the relative rights, of the plaintiff and the defendant, The Central Fairmount Building and Loan Company. The plaintiff claims that as she did not sign the mortgage (her name having been forged thereto) her undivided one-half is not subject to the lien of the mortgage and the mortgage cannot subject it to the payment of the debt created by its advancement of $5400.00 of the purchase price at the time of the property was purchased and the title transferred to her, and this, notwithstanding she occupied the position of a donee. In 27 O. Jur., 259, it is stated that: “A purchase money mortgage is a mortgage given for the purchase money concurrently with the receipt of the dieed, and may be given either to the vendor of the property or to some third person who furnishes the purchase money.”

While it is true that the mortgage unaided by equitable principles does not create a lien as against the plaintiff who did not sign it, the fact that it was executed at the same time as the deed shows that there was no intent to convey a title free of the incumbrance to secure the purchase price. There was no intent to convey to the plaintiff an unincumbered title. Her donor — Frank A. Lipps — had no such unincumbered title to convey to her. It is a general principle running through the law that no one can convey a better title than he himself has and that a transferee obtains no better title than his transferor had, and where an attempt is made to transfer a greater title than the transferor has, the real owner can pursue the property until it reaches the hands of an innocent purchaser for value. Every principle of equity would limit her title to that of her donor, especially as against an innocent grantee who had advanced money in good faith.

This principle has had frequent application in Ohio to the claim of the widow to dower in premises subject to a purchase money mortgage which she had not signed, or to a vendor’s lien. In 14 O. Jur., 657, it is said:

“The right of dower is subject to a purchase-money mortgage given by the consort at the time of receiving the deed. It has been said that a purchase-money mortgage is superior to a claim of dower, even though the mortgage is not signed by the wife, because the debt is a higher claim than the claim of dower. The technical seisin of the consort does not confer upon the other spouse a contingent right of dower in the land, as against those deriving title at judicial sale of the land on the mortgage, although he or she did not join in executing the mortgage.”

And at 668, it is stated that: “A vendor’s lien is superior to the right of dower of the vendee’s consort.”

In Anketel et al., v. Converse et al., 17 Oh St, 11, it was held, as stated in the first paragraph of the syllabus, that:

“A vendor’s lien for purchase money is not extinguished by his taking a mortgage on the land sold, to secure its payment.”

And as the law is that the mortgage to a third person who advances the money to finance the purchase has the attributes of a purchase-money mortgage, we can see no logical reason for not holding that such person should not have a vendor’s lien to secure the repayment of the purchase money advanced by him under the same circumstances that would give a vendor such a lien.

There are cases holding or implying that a vendor’s lien is non-assignable, and there is strong criticism of such a rule if it exists. In this case we are not required to decide that question. We are required to decide in this case whether the plaintiff, who has taken the legal title to this real estate as a gratuitous grantee, must hold that title subject to equities existing at the time the legal itle was cast upon her.

Ogle v. Ogle, 41 Oh St, 359, involved the application of principles which, we think, are equally applicable here. That case arose at a time when a married woman did not have the capacity to execute a mortgage unless her husband joined. The syllabus sufficiently sets forth the facts and the decision, as follows:

“A vendor, supposing that a woman whose- husband was not living with her, was unmarried, sold her a tract of land and took notes and a mortgage back for a part of the purchase money.
“In an action by an assignee of the notes, Held: The deed and void mortgage are one transaction and subsequent purchasers, with notice, took title in trust for the payment of the mortgage notes.”

Ogle v. Ogle, supra, was followed in Hatry v. P. & Y. Co., 1 C. C. 426. In applying the principle of Ogle v. Ogle in that case the court said at 443 and 444:

“That is a pretty broad case, and is to be commended as breaking away from the totally indefensible (upon principle) doctrine that a vendor of land cannot sell his lien thereon, although it is property, as much as the notes which it secures, and frequently is the only thing which gives value to such notes. Call it a vendor’s lien, and Ogle could not enforce it; but call it a trust, and he may. In equity the vendee holds the lands in trust for the vendor, to the extent of the unpaid purchase-money. The lien arises out of, and is founded upon, an equitable trust. 31 Oh St, 504, 505. It would seem as if the right to relief in such cases should depend upon the facts and not upon a name. Is it material whether such right be denominated a vendor’s lien, a trust, or (properly) an equitable lien? The principle established in the Ogle case, applies, it seems to us, to the case at bar, and justifies us in holding that Seelye’s representative has an equitable lien upon this railroad; and if so, it is good undoubtedly against all parties with notice.”

We are not overlooking the holding in Mitchell v. Ryan, 3 Oh St, 377, that where a grantor executes a deed and has it recorded, and the grant is plainly beneficial "to the grantee, its acceptance by the grantee is presumed, in the absence of proof to the contrary, but that case also holds that the presumption is rebutted by actual dissent. Now it is true that the plaintiff knew nothing of the execution of either the deed or mortgage at the time of their execution, or until after she had sued for divorce and, when she discovered the facts, she dismissed her divorce action, and instituted this action in partition. At that time, she was privileged to reject the title, but with full knowledge of the mortgage and the state of the title, she chose to accept it. On plainest principles of equity, she cannot acquire a better or greater title than her donor had.

So, in the case at bar, we hold upon equitable principles the plaintiff holds the legal title to her undivided one-half of this real estate, subject to a charge or lien, or in trust, to secure the payment of the balance due The Central Fairmount Building & Loan Company upon its purchase-money mortgage, and that her right in said property is one-half of the residue after payment of the balance due upon the purchase price.

After this opinion was announced our attention was called to the fact that the grantors in this deed had been made parties to this action by entry after the institution of the action. However, that fact would not change our conclusion as there was no evidence of any agreement to convey to Genevieve Jeffries as a co-grantee to which the deed could be made to conform.

A decree may be presented in accordance with this opinion.

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