author: By KOVACHY, J.

text:
    PASHKO, Plaintiff, v. PASHKO, Defendant; HAAS, New Defendant.
    Common Pleas County, Cuyahoga County.
    No. 621612.
    Decided October 13, 1951.

      Jack A. Feingold, Morris Morgenstern, Cleveland, for plaintiff, Orpha Jean Pashko.
    Sherman D. Cahn, Cleveland, for defendant, James Pashko.
    Myron D. Melitz, Cleveland, for defendant, Florence Haas.
   OPINION

By KOVACHY, J.

In this matter the plaintiff filed an alimony action against her husband, James Pashko, and in her prayer, in addition to asking for the usual relief asks “that during the pendency of this action the defendant, Florence Haas, be restrained from visiting, conversing socially, associating, or meeting and being with the defendant, James Pashko; that she be restrained from interfering with the marriage relationship-;-that the defendant, James Pashko, be temporarily — restrained from visiting, conversing socially, associating, or meeting and being with the defendant, Florence Haas: — ”

In her Amended Petition with respect of Florence Haas she claims that the defendant, Florence Haas, “has enticed him (her husband) by using various designs and wiles to have the defendant leave her and in trying to induce her husband to transfer his affections to her” and “that the defendant (her husband) and said Florence Haas openly, notoriously and brazenly have been seen in each other’s company and have made no pretense of their relationship and friendship for each other and have flagrantly displayed their affections for each other in public places where they could easily be seen by the general public and by others who are acquainted with both plaintiff and the defendant.” Further “That said defendant, Florence Haas, maliciously and wrongfully used her design upon the plaintiff’s husband for the purpose of destroying the love and affection that her husband had for her and for the purpose of bringing about the separation of the plaintiff from her husband.”

With respect of her husband the plaintiff “alleges that prior to the new defendant, Florence Haas, interfering with their lives that she and her husband enjoyed happiness, peace and contentment and that her husband treated her with great kindness, affection and tenderness during the greater portion of the time they lived together” and “that until such time as the defendant, Florence Haas, enticed her husband by various means and methods, that she and the defendant were a normal, happy husband and wife, living a normal life in the community, and they enjoyed the respect and companionship of their friends and relatives, but ever since the defendant, Florence Haas, has interfered with their marriage and has by undue influence and various wiles and means enticed her husband, he has been dissatisfied with his marriage and has left her and engaged in the activities that have hereinbefore been related.”

The plaintiff filed a written “Motion For a Temporary Restraining Order” with notice of a hearing upon the same at a time and court certain and obtained personal service upon each defendant. At an oral hearing upon the same each defendant demurred to the granting of a temporary restraining order on the ground,—

1. That the amended petition does not state a cause of action for same and,—

2. That the Court has no equitable jurisdiction to grant the relief prayed for.

Defendant, Florence Haas, in addition, claims that there is a misjoinder of parties defendant.

The defendants for their demurrer rely heavily upon the rulings of the Supreme Court of Ohio in Snedaker v. King, 111 Oh St 225. While that celebrated case deals with facts which are quite similar to the facts in this case there are important distinguishing features between them. The Snedaker case was an original action in a Court of Equity in which the plaintiff sought a permanent injunction. This case is an alimony action in a court of Domestic Relations in which the plaintiff seeks a temporary restraining order. To evaluate the efficacy and propriety of the request made herein it is necessary to understand the basic philosophy of the law in Divorce and Alimony matters.

1. Marriage is a civil contract between husband and wife considered by law a status in which the state has an interest and over which it should exercise watchful vigilance to safeguard its sanctity and to prevent its disruption, if possible.

9 R. C. L. 252 and 17 Am. Jur. 154:—

“The public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together, and to prevent separation.”

Maynard v. Hill, 125 U. S., 190:—

“Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”

Allen v. Allen, 73 Conn. 54, Chief Justice Andrews said on page 55:

“Marriage is that ceremony or process by which the relationship of husband and wife is constituted. The consent of the parties is everywhere deemed an essential condition to the forming of this relation. To this extent it is a contract. But when the relation is constituted then all its incidents, as well as the rights and duties of the parties resulting from the relation, are absolutely fixed by law. Hence, after a marriage is entered into the relation becomes a status, and is no longer one resting merely on contract.”

Also see:

27 C. J. Sec. 527, Alexander v. Alexander, 140 Ind. 555.

2. The historic purposes of the divorce and alimony laws is to serve the best interests of society by protecting and maintaining the family.

Dennis v. Dennis, 68 Conn., 186, Chief Justice Andrews says the following:

“The State desires good citizens. It regulates divorce procedure in its own interest.-the State does not favor divorces:-The State allows divorces, not as a punishment to the offending party nor as a favor to the innocent party, but because the State believes its own prosperity will thereby be promoted.”
“Marriage and Divorce” by Keezer, page 299:
“As pointed out in the chapter on marriage the state has the greatest interest in promoting healthy family life. It has an even greater interest in maintaining the family than in creating it. It has, therefore, hedged the home about with a system of divorce laws, looking to the permanency of the marital relation. Divorce is prima facie prejudicial to the public interest.”

Fessenden v. Fessenden, 32 Oh Ap, 17.

“Syl. 6. Suit for divorce is of importance not only to the parties to the suit, but to society in general.”

3. The state is a party to every divorce and alimony proceeding and in Ohio where no provision by law is made for actual representation, the court represents the state.

9 R. C. L. 253:

“It has been said by the courts and eminent writers on the subject that such an action is really a triangular proceeding to which the husband and the wife and the state are parties.”

9 R. C. L. 409:

“In England and in some jurisdictions in this country provision is made by statute for intervention on the part of the state’s attorney or other official representative of the state. And even where there is no statute authorizing the appearance of such an official, it is recognized that the duty of protecting the public interests is in the care of the tribunal before which the proceedings are pending, which, therefore, will be astute in enforcing the policy and principles of the law.”

Bishop v. Bishop, 162 S. W. 2nd 332, syllabus 10:

“The state, or the public is a ‘party’ to a divorce action, and has its day in court when the action is tried.”

Young v. Young, 17 Minnesota, 186:

“The proper regulation and control of the marriage relation is of so much importance to society, the well being of the community is so far involved in the permanence of this relation, that the state, through its courts, exercises a peculiar guardianship over marriage and divorce.”

Rinehart v. Rinehart, 91 New Jersey Equity, p. 354:

Syl. 2. “In divorce cases the state is a party whose interest the court at all times will save and protect;”

See: Alexander v. Alexander, 140 Ind. 555, 9 R. C. L., page 250; Allen v. Allen, 73 Conn. 54, 344 Missouri, 771; Winning v. Winning, 366 Ill. 57, syl. 2, 55 C. J. Sec. 808; Hopping v. Hopping, 233, Iowa, 996, 205 Iowa, 395; Giddings v. Giddings, 114 Pac. 2nd, 1009; Snedaker v. King, 111 Oh St, 248.

4. It is the duty of the court to use every proper means to reconcile parties seeking divorce or separation.

The State of Nevada ex rel Leonard B. Fowler etc. v. Gladys M. Moore, etc., et al, 46 Nevada, 65.

“The state, or sovereign, is deeply concerned in maintaining the integrity and permanence of the marriage relation.”
“Divorce and Separation” by Nelson, Volume 1, page 14:— “The state would like to see a reconciliation and adjustment of differences, if possible.”

Page 17:

“Public policy in the interest of good morals and the stability of society requires the discouragement of divorce and encouragement of reconciliation.”

Pilliner v. Pilliner, 133 P. 2d. 735, syllabus 9:

“The law favors reconciliation.”

55 C. J., Sec. 808:

“Marriage is favored by the law and the public policy is to foster and protect marriage, to make it a permanent and public institution, to encourage the parties to live together and to prevent separation.”

See Giddings v. Giddings, 114 Pac. 2d 1009.

5. The six week waiting period before a divorce or alimony action can be heard in Ohio is intended as a cooling off period for the parties and the time for affecting reconciliation if possible.

Sec. 8003-10 GC.

6. A wife by law is entitled to the affection, society, cooperation and aid of her husband in all conjugal relations.

Flandermeyer v. Cooper, 85 Oh St, 327:

Syl. 1. “Husband and wife are entitled to the affection, society, co-operation and aid of each other in every conjugal relation, and either may maintain an action' for damages against any one who wrongfully and maliciously interferes with the marital relationship and thereby deprives one of the society, affection and consortium of the other.”

Henley v. Rockett, 243 Alabama, 172:

Syl. 1. “ ‘Marriage’ is' contractual, and a covenant relation, resulting in the marital union, in which each spouse has the unquestioned right to all the fealties on the part of the other, known as ‘consortium.’ ”
Syl. 2. “The loss by husband or wife of rights to the person, affection, society, assistance, service, aid, fellowship, companionship, company, co-operation, or comfort of the other constitutes a loss of ‘consortium.’ ”

See: Biganoette v. Paulet, 134 Mass. 123; Snedaker v. King, 111 Oh St 248.

The court in this case has complete jurisdiction over the marital status of the husband and wife involved. It has a duty to safeguard and preserve such status if possible during the pendency of the action in order to allow all forces working toward a reconciliation to operate with the view of maintaining the family relation.

According to the plaintiff, one, Florence Haas, is wrongfully and maliciously bent on disrupting her conjugal relations with her husband. She is asking this court to restrain Miss Haas from so doing during the pendency of her action. Now it is obvious that if Florence Haas has .her way that the plaintiff will suffer irreparable injury in her relationship with her husband. It is also manifest that if Florence Haas is permitted to pursue her designs unhampered the chances for a reconciliation of this couple is greatly lessened and the beneficial purpose of a waiting period between the filing and hearing of the cause most probably thwarted. The matter therefore resolves itself into the following question: Does a Common Pleas Court acting in Domestic Relations have the Power which it should exercise to halt a brazen and designing third person from wrongfully, maliciously and notoriously interfering with the marital rights of the plaintiff during the pendency of her alimony action or must it proclaim its impotence to control such a situation and supinefy permit the flagrant violation of substantial rights to continue unabated?

The Supreme Court of Ohio In re Cattel, 146 Oh St 112, recognizes the authority of a court of Common Pleas to issue restraining orders during the pendency of an action for divorce and alimony when “great or irreparable injury” may be caused the plaintiff, Paragraph 1 of the syllabus reads as follows:

“In an action for divorce and alimony a Court of Common Pleas or a judge thereof, in addition to the authority granted by §11996 GC is authorized by §11876 GC, to issue a temporary restraining order or injunction when it appears by the petition that plaintiff is entitled to the relief demanded and such relief or any part of it consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce great or irreparable injury to the plaintiff.”

In Stark v. Hamilton, 149 Georgia, 227, the Supreme Court of Georgia sanctioned a restraining order of similar tenor to the one herein prayed for. Paragraph 1 of the syllabus reads as follows:

“Where a man has debauched a minor girl and induced her to abandon her parental abode and live with him in a state of adultery and fornication, and persists in a continuance of such conduct, equity will afford a remedy by injunction, and to that end, in a suit by the father, will enjoin the man from associating and communicating with the girl, either by writing, telephoning, or telegraphing, personally or through the aid or agency of any other person.”

In Vanderbilt v. Mitchell, 72 New Jersey Equity 910, 919, it was said:

“If it appeared in this case that only the complainant’s status and personal rights were thus threatened or thus invaded by the action of the defendants and by the filing of the false certificate, we should hold, and without hesitation, that an individual has rights, other than property rights, which he can enforce in a court of equity and which a court of equity will enforce against invasion, and we should declare that the complainant was entitled to relief.”

27 American Jurisprudence, 121 Section 520:

One spouse may enjoin a third person from alienating the affections of the other spouse in a proper case.”

Hall v. Smith, 140 New York Supplement, p. 796:

“The motion which has been made in this action requires the determination of the question whether in such an action an injunction order may, and should be, made to restrain the defendant pendente lite from the continuance of those acts which lie at the foundation of the cause of action. While the question is most unusual in respect of the power of the court to grant such relief, I have no doubt whatever that in a proper case the right to grant such an injunction resides in the court of equity, and that it is not unduly extending the jurisdiction or cognizance of the court to restrain the impending, threatened or continued commission of such acts as are violative of the rights of a plaintiff in a suit of this character.”

Sec. 8003-21 GC:

“ — In any matter concerning domestic relations, the Court of Common Pleas shall not be deemed to be deprived of its full equity powers and jurisdiction.”

In 146 Oh St, on page 119, Judge Turner has the following to say:

“Where a procedural power, such as the power to issue an injunction, is conferred upon the Court of Common Pleas, it is the duty of such court to exercise such procedural power in any appropriate case.”

From a consideration of the authorities and the duties devolving upon a court of domestic relation with respect to marriage and the family, this court believes that if the facts set forth in the Amended Petition be true, that this is then an appropriate case in which to exercise its equity powers to restrain the third party pendente lite from continuing her deliberate depredation upon the marriage of the plaintiff.

Defendants claim that such an order in a matter relating to domestic affairs would be violative of the right of free speech and of normal social relations. The Court believes that under the circumstances herein depicted it would be no more of an infringement of the mentioned rights than the enforcement of the law of careless driving in a proper case is an abridgement of the right of citizens to operate their automobiles upon the highway.

In Parte Warfield, 50 Southwestern, 933, syllabus 6:

“That defendant was restrained in a suit for the partial alienation of a wife’s affections, from conversing with or writing to her in any way or associating with her is not inconsistent with freedom of speech or of the press or of locomotion.”

Smith v. Womack, 271 Southwestern, 209,—

Syl. 1. “An injunction restraining defendant from visiting with or accompanying plaintiff’s husband and in person by telephone, telegraph or writing from communicating with plaintiff or her husband and from annoying plaintiff by attention to her husband is not in violation of Const. U. S. Amend. 1 or Const. Texas, Art. 1, Section 8, by curtailing freedom of speech.”

They also say that human passion is involved in this matter which is not amenable to regulation by law. That, of course, is not sound thinking because it is only through the exercise of discipline with respect to human passion that man has evolved above the level of brute force and laws in many instances merely reflect such discipline. The killing of another in the “heat of passion,” for instance, is manslaughter.

They further maintain that the order if made would be difficult to enforce since its disobedience in the main would only involve the defendants themselves. The answer to that assertion is the fact that this court issues hundreds of orders in domestic relation matters as a matter of routine all of which are inforceable through contempt proceedings and no insurmountable difficulties have been encountered with respect to their enforcement.

Divorces are at a scandalously high level in the United States today. Courts should use whatever powers they have to stem the tide. A restraining order against the third party in this case will be notice to others deliberately intent upon breaking up a family to take heed and desist from their course. The court is convinced that it will deter others from similar action and become a shield in protecting the integrity and the sanctity of family life in our community.

With respect to the demurrer of the defendant, James Pashko, it appears to this court that if an order is entered against defendant, Florence Haas, it will become necessary to stay the hand of said James Pashko as well in order to prevent any possible circumvention of the court’s order in respect of their relation.

The demurrers of both defendants are therefore overruled and exceptions noted.

The defendants herein at the hearing on the Motion for a Temporary Restraining Order stated that through their respective demurrers they raise the question of law permitting the order sought in this case and if the law should prove against them that they do not care to present any evidence to contravert the allegation of the Amended Petition and concede that an order should issue. A temporary restraining order as prayed for, therefore is granted and a bond of One Hundred Dollars ($100.00) set as to each defendant and a Journal Entry may be drawn accordingly.

These defendants also demur to that part of the prayer in this case asking that the temporary restraining order as to each defendant be made permanent upon the adjudication of this case. The court does not rule upon that phase of the matter and refers that branch of their respective demurrers to the court hearing this case upon its full merits.


source: Caselaw Access Project

author: By HORNBECK, PJ: By THE COURT:

license: Public Domain

text:
    BROWN, Plaintiff-Appellee, v. JOHNSTON et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2169.
    Decided April 8, 1952.

      Gertrude A. Bucher, A. K. Meek, Dayton, for plaintiff-appellee.
    McLeran, Kelly & McLeran, Dayton, for defendants-appellants.
   OPINION

By HORNBECK, PJ:

This is an appeal on questions of law from a judgment of the Common Pleas Court for $190.00 interest and cost in favor of the plaintiff against the defendant.

Plaintiff’s second amended petition upon which he went to trial consisted of three causes of action. The trial judge entered the judgment upon the first cause of action only in which plaintiff set out a written contract between the parties dated January 6, 1949 by the terms of which the plaintiff was to buy from the defendants certain real property described and to pay therefor the sum of $8500.00, with interest, in monthly installments of $100.00 each. After the payment of $1150.00 on the purchase price, the plaintiff defaulted. It is averred that the contract contained this clause:

“It is also agreed that upon the failure of the purchasers to make the payments provided for in this contract, that the agreement shall then, at the option of the sellers, become void.”

It is further alleged that defendant elected to exercise their option under the quoted clause and thereby made said purchase contract void. The premises were surrendered to the defendant on or about May 5, 1950. Plaintiff averred that the reasonable value of the premises was $30.00 per month and prayed for a refund of the $1150.00 paid on the purchase price less a credit thereon of $30.00 per month, the alleged fair rental value of the premises for the time curing which they were occupied by the plaintiff. Defendants answering admit the contract, the payments, default and the repossession of the premises as pleaded in the petition. They further deny the allegations of the petition and say that on March 24, 1950, by mutual agreement, the following notation was placed upon it:

“By agreement of parties this contract is cancelled and J. S. Johnston and Eulah Johnston are released of all obligations on their part to be performed.”

Plaintiff in his reply asserts that the Supplemental Agreement set up in the answer was entered into for the sole purpose of permitting

“the defendants to enter into a contract with plaintiff’s sister, to purchase the real estate referred to in this lawsuit, for the balance due on said contract, and the defendants then did not make said sale to the plaintiff’s sister, and therefore said release never became operative, and is of no force and effect, and no consideration has been given plaintiff to release any right he has to recover herein from the defendants, and said release was made for the benefit of said sister and not for the benefit of the defendants.”

We do not find any specific assignments of error but appellants in their brief argue generally, that the trial judge did not appreciate the import and meaning of the Supplemental Contract, that the amount allowed the plaintiff as a refund on the sum paid on the purchase price is not supported by the record, that there should have been no money judgment for the plaintiff upon any theory and especially because of the damages which plaintiff had done to the property by its misuse.

At the time of the oral presentation of this appeal, counsel were in agreement that the one question presented related to the weight of the evidence.

We have examined the briefs of the parties. The appellee’s brief is devoted largely to propositions of law and fact which were resolved against him by the trial judge. If it were necessary to support the judgment that the trial judge find, or that we support his finding, that the defendant overreached the plaintiff in the transaction here involved or that the supplemental contract was induced by reason of an agreement between the parties hereto and plaintiff’s sister, wherein she was to buy the property upon the terms claimed by plaintiff, we would have difficulty in supporting the judgment.

Defendants in their brief urge that the petition does not state a cause of action and cite 9 O. Jur. 598, 599; 40 O. Jur. 1077; Ashbrook v. Hite, 9 Oh St 358; Witherow v. Witherow, 16 Oh St 338 and Scott’s Exr. v. The Executor and Heirs of Levi Barber, 14 Ohio 547. These citations in the main go to the proposition that where a purchaser makes default in stipulated payments provided by a purchase contract, the vendor may refuse to perform without incurring liability to refund any of the purchase price. All of these citations are sound but have no application here because plaintiff’s action is not predicated upon the contract. If it were, he could not recover.

By the provision of the contract, particularly by the Supplemental Agreement, the contract was rescinded. This remanded the plaintiff to such relief as he would be entitled to under the facts developed had there been no contract. A somewhat similar situation was presented in the case of Swee, et al v. Bregenzer, 19 O. C. C. N. S. 563 and at page 564, where it is said in the opinion:

“the cause of action is not based upon any situation in the contract referred to in the petition. That contract, according to the allegations of the petition, is no longer subsisting. It has been rescinded by the defendant, and the plaintiffs, accepting that rescission, and recognizing that the contract has no longer any existence, sue to recover the money paid by them while it was a subsisting contract. In such a case the law raises an obligation which may be enforced in an action as for money had and received. While it may be necessary for the plaintiffs to resort to the contract as evidence to establish their right to recover, the action itself is not on the contract.”

Three cases are cited. The principle upon which the plaintiff may maintain his action here is set out and supported by citations from many of the states in the Union. Annotation to Nicolopoolos v. Hill, 59 A. L. R. (Ala.) 185, 218, where it is stated that:

“Where the vendee is in default, the parties may mutually agree to rescind a contract, or, where the contract has been abandoned or rescinded by the consent of the vendor, the general implication is that he will account to the vendee for the amount received on the purchase price.”

Here the plaintiff in his petition recognizes his obligation to have any judgment in his behalf reduced by the fair rental value of the premises in which he lived.

It is not necessary to remind counsel in this case that this Court may not reverse a judgment of the trial court, unless it is patently and manifestly against the weight of the evidence, and the trial judge must be accorded the privilege of weighing and evaluating the testimony and the credibility of the witnesses. So testing this judgment, we cannot hold that it is against the weight of the evidence.

Some aspects of this case tend to support the contention of the defendants that the property was materially and seriously damaged by its misuse by the plaintiff. There is a strong suggestion in the evidence that plaintiff, and probably others who lived in the house with him, used the basement for the purposes for which commodes are properly employed.

Decided April 30, 1952.

Plaintiff contended that he agreed to pay too high a price for the property and that he was unable because of his meager earnings to meet the payments. This was not decisive. Had it been, we doubt if it were established. He did meet the payments for 11% months and he had the property so arranged as that he could make the monthly installments required with very little, if any, of the rent to be paid from his earnings. On the other hand, notwithstanding the condition of the property, probably caused, in part, by its misuse, the defendant was compensated for its occupancy at the rate of $60.00 per month when the Federal Rent Control Authority had fixed the rent at $30.00 a month; and, eventually, he sold the property for the same price at which plaintiff had contracted to buy it.

Analyzing the testimony in all of its facets, we are of opinion that the trial judge, in the face of a difficult case, made a fair and reasonable adjudication of the issues, although many material facts were imperfectly developed.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.

ON APPLICATION FOR REHEARING

No. 2169.

OPINION

By THE COURT:

Our rules make no provision for applications for rehearing. The application of Appellants will, therefore, not be considered.

The application fails to note that we held that plaintiff’s cause of action was not upon the written contract. The sup-

plemental contract released the appellants from all obligations by them to be performed on the contract.

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


author: By THE COURT.

text:
    BRUNSON SAVINGS & LOAN COMPANY, Plaintiff-Appellant, v. BULEN et, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4744.
    Decided April 16, 1952.
    Frank Miseta, Rodney B. Baldwin, Columbus, for plaintiff-appellant.
    Harley E. Peters, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee, seeking an order dismissing the appeal on questions of law for the reason that the order appealed from is not a final order. The record reveals that the order made on January 10, 1952, sustains the demurrer filed to the petition and grants the plaintiff 10 days to amend. This is not a final order from which an appeal may be taken. Kelley v. Kelley, 74 Oh Ap 225; Davis v. Moor, 86 Oh Ap 213.

The motion will be sustained.

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


author: By PHILLIPS, J.

text:
    COONS, Plaintiff-Appellee, v. NEEDLES et, Defendants-Appellants.
    Ohio Appeals, Seventh District. Jefferson County.
    No. 1050.
    Decided November 29, 1951.
    Henry Greenberger and James S. Kimble, Steubenville, plaintiff - appellee.
    W. M. Downer, Steubenville, for defendants-appellants.
   OPINION

By PHILLIPS, J.

Defendants, husband and wife, appealed to this court on questions of law from a judgment of the court of common pleas entered upon an order of that court granting plaintiff a new trial in her action filed therein against defendants to recover damages for personal injuries sustained on their premises, allegedly as the result of their carelessness and negligence. By their sole assigned ground of error defendants contend that the trial judge abused his discretion in granting plaintiff’s motion.

An order sustaining a motion for a new trial is not a judgment or final order appealable or reviewable unless it clearly appears that the trial judge abused his discretion in granting such a motion. Green v. Acacia Mutual Life Insurance Co., 156 Oh St 1.

The first three grounds of plaintiff’s motion related to rejected testimony offered on behalf of plaintiff, which subsequently the trial judge concluded had been rejected erroneously. In ruling upon those branches of plaintiff’s motion the trial judge said: “The court did not permit him (Dr. Howard Brettell) to testify. The court is now satisfied that that ruling of the court was wrong, and that he should have been instructed to testify.” However the court “does not believe that the exclusion of Doctor Brettell’s testimony was prejudicial to the plaintiff in this case,” and did not sustain plaintiff’s motion for a new trial on the grounds of such errors.

The trial judge permitted as an exhibit in evidence on behalf of plaintiff a copy of a letter written to her by Dr. Harrington, her physician (who did not testify in her trial), approximately eight months after she was injured, in which such physician stated how he understood plaintiff was injured. In sustaining plaintiff’s motion for a new trial on the fourth ground of her motion, which related to that exhibit, the trial judge said:—

“With reference to the second principal ground for a new trial, that is, that the court admitted plaintiff’s Exhibit E in evidence after the plaintiff attempted to withdraw the exhibit and to exclude the same as evidence: The objectionable part of this exhibit on behalf of the plaintiff is contained in the first paragraph, which is as follows:
“ ‘Patient had been visiting Mrs. Needles at her residence and was leaving with her sister by the name of Broudy who was driving car. Her sister had gotten into the car and as Mrs. Coons approached the car she tripped on the sidewalk at the curb and fell flat on the ground.’
“Plaintiff claims that by the admission of this exhibit the jury could draw a conclusion contrary to the plaintiff’s theory of negligence in this case and that it was prejudicial to the plaintiff.
“Some controversy arose over the offering of this exhibit. It is recalled by the court that near the close of the day, when the court was about to adjourn, this exhibit was offered by the plaintiff in evidence. It was objected to by the defendants. The court reserved the ruling upon the admission of this exhibit in evidence at that time. Upon the resumption of the trial the following day the defendants’ counsel stated that he withdrew his objection to Plaintiff’s Exhibit E and that it could be admitted in evidence. Plaintiff’s counsel at that point stated that he. had already withdrawn this exhibit from evidence. Later the court admitted this exhibit without any instructions with reference to it.
“Upon examination of the record the court finds that the plaintiff had not withdrawn this exhibit at the time counsel made that statement. However, the court asked counsel at that time if counsel was withdrawing this exhibit and counsel stated that he was.
“Now, the question arises as to when an exhibit that has been offered in evidence may be withdrawn by the offerer. The court believes this to be the correct rule, that when an exhibit is offered in evidence the offerer of the exhibit has a right to withdraw it at any time before the court has passed upon its admission.
“In this case the plaintiff asked to withdraw the exhibit before the court admitted it. I think the court should have permitted the withdrawal, even though the defendants had withdrawn objections. The court did not do that. The court admitted it in evidence after the plaintiff had requested its withdrawal.
“The court feels that the court was wrong. This exhibit, containing the statement read by the court as to how the injuries were sustained, having gone to the jury, was before the jury. Whether or not it influenced the verdict in any manner of course the court does not know; but the court does feel that the admission of this exhibit was prejudicial to the plaintiff. There is a possibility that the jury may have considered this as the cause of the plaintiff’s injuries. It was improper evidence and should not have been admitted. * * *
“Peeling that the admission of this exhibit was prejudicial to the plaintiff’s case with the jury, the court feels that a new trial should be granted. Therefore, th.e motion for a new trial is granted. Prepare an entry and give it to me today, please.”

We conclude that the trial judge did not err to defendants’ prejudice with respect to his finding on this ground of plaintiff’s motion for a new trial.

The fifth ground of plaintiff’s motion for a new trial was “that the verdict of the jury was manifestly against the weight of the evidence.”

There is nothing before us indicating that the trial judge considered this ground of plaintiff’s motion for a new trial, nor acted upon it to defendants’ prejudice in sustaining plaintiff’s motion for a new trial.

In the sixth ground of her motion for a new trial plaintiff urges:—

“Irregularities in the proceedings of the jury by which this plaintiff was prevented from having a fair trial in this, to-wit: that the jury disregarded the testimony of witnesses and decided the issues on the statement made by Dr. F. B. Harrington in the history which was erroneously admitted into the evidence.”-

In support of defendants’ argument with reference to the sixth ground of plaintiff’s motion for a new trial defendants attached to their brief affidavits of two jurors allegedly secured by counsel for the plaintiff to support her motion for a new trial, one of which instruments was signed and the other unsigned, and both of which related to deliberation of the jury in the jury room. By brief counsel for defendants say: “The trial court ruled correctly, we are convinced, that any arguments with reference to said affidavits, or in any way applying the contents of said affidavits was improper at this time.” However defendants contend these affidavits were prejudicial to them, and that the trial judge considered them in sustaining plaintiff’s motion for a new trial, and thereby abused his discretion.

There is nothing before us, except statements and arguments of counsel, indicating that the contents of such affidavits were argued by, ever came to the attention of, or were considered by the trial judge in reaching his decision to sustain plaintiff’s motion for a new trial. Accordingly we can not arrive at the conclusion counsel for defendant asks us to reach with reference to ground six of plaintiff’s motion for a new trial.

Appellants’ counsel has failed to call our attention to his unnumbered assigned ground of error “for other errors manifest from the face of the record,” as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

We have reviewed and carefully considered defendants’ sole assignment of error, and without further word conclude that the trial judge did not err to their prejudice, nor abuse his discretion in the respects urged by them in their assigned ground of error nor brief submitted and oral argument made in support thereof.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, concurs in judgment.

GRIFFITH, J, concurs.


author: By MATTHEWS, J.:

text:
    COOK, Appellant, v. WILLIAMS et, Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7528.
    Decided March 17, 1952.
    Chester K. Gillespie, Cleveland, William N. Lovelace, for appellant.
    Berry, McClain & White, for appellee, Percy Williams.
   OPINION

By MATTHEWS, J.:

The notice of appeal recites that the appeal is on both law and fact, but as no appeal bond was filed, the appeal has been reduced to law only. A bill of exceptions has been duly filed and the appeal now comes on for hearing upon a complete record of the proceedings in the trial court. The trial court rendered judgment for the defendants. It is claimed by the plaintiff that error intervened.

The plaintiff is the only child of Cora L. Williams, deceased. The defendant, Percy Williams, is her widower. They were her only heirs and next of kin. The other defendants were joined as parties because they have or claim an interest in the subject-matter of the action.

The prayer of the petition is to have a certain deed conveying certain described real estate from Cora L. Williams to Percy Williams and a transfer of certain corporate stock in Play Bowl, Inc., set aside, and for other relief incident to the setting aside of those transfers. The basis for the relief sought as alleged in the petition is that Cora L. Williams on July 5th, 1950, when these purported transfers were made, was mentally incapable of transacting any kind of business and particularly mentally incapable of understanding the nature and effect of this deed to the real estate and this transfer of the corporate stock, and that she was induced to execute said instrument of transfer against her will through the undue influence, fraud, and deceit of her husband, Percy Williams.

Neither the plaintiff, who is the daughter of Cora L. Williams, nor the defendant, Percy Williams, who is her widower, testified in this case. However, the evidence shows that for some months prior to the execution of these transfers, Cora L. Williams was suffering from hardening of the arteries of the kidneys, causing high blood pressure and excitation of her mind and feelings, and that she had been hospitalized from May 20th to June 17th, 1950, but had been returned to her home on the latter date, where she remained until July 6th, when she was returned to the hospital, where she remained until her death there on July 9th, 1950. While, perhaps, her condition varied from day to day. her general condition deteriorated, so that on July 6th, her physician directed that she be returned to the hospital not for curative purposes, but in order that her remaining days might be made as comfortable as possible. There is no doubt whatever that on July 5th, 1950, Cora L. Williams was very sick and was, perhaps, physically incapable of writing her name. At any rate, her hand was guided by one of the witnesses when she signed the deed, which the plaintiff seeks to have set aside.

The defendant, Percy Williams admits that Cora L. Williams was very sick on July 5th, and that in retrospect, it could be said that she was dying. Nothwithstanding this, he asserts that her act in making these transfers was the result of her own judgment and decision, freely made, with full knowledge and understanding of all the facts. In proof of his position, he produced five witnesses, apparently disinterested, who testified to various transactions with, and observations of her during this period, indicating that she participated in business transactions and responded intelligently, and they expressed the opinion that she understood the nature and effect of the transfers, and that they carried out her intention. Their testimony, if believed, proved that she arranged for these transfers, and that neither Percy Williams nor any one else suggested that she should do so. Some of these witnesses testified that Cora L. Williams was asked more than once whether she wanted her daughter, the plaintiff, sent for, and she said she did not. While Percy Williams was in the room when the deed was executed, there is no evidence that he took any part in the transaction, and that her purpose was to transfer back to him the property which he had theretofore conveyed to her.

One of the grounds, and, perhaps, the principal ground, urged for the reversal of this judgment is that it is manifestly against the weight of the evidence. It is clear that in view of this array of witnesses testifying that Cora L. Williams was of sound mind and that the transfers were her voluntary act, free of any deceit or fraud, this Court would not be justified in disturbing the conclusion of the trial court on the ground that it is against the manifest weight of the evidence.

The plaintiff placed four witnesses upon the stand. The first was the attending physician. He testified that Cora L. Williams was very sick with the fatal malady already described. He saw her on July 3rd, and again on July 6th. The most that can be gleaned from her testimony is that she was very sick on both dates, but more critically so on the latter date, and that perhaps on the latter date she was somewhat confused. On both occasions, she was incapable of much physical exertion. He would not say she was mentally incompetent on July 5th. His testimony does not go beyond the admitted fact that she was very sick and suffering from an incurable disease.

The plaintiff placed two other witnesses — Gillespie and Jones — on the stand. These witnesses had known Cora L. Williams for about six months, during which they had resided in the same building and had seen her frequently. Each testified that she was very sick, but neither testified that she was of unsound mind.

The only other witness for the plaintiff was Beatrice Kennedy, who had known Cora L. Willaims since 1944, had traveled with her some, and during the intervening years had visited her in her home. The witness lived in Knoxville, Tennessee. While Mrs. Williams was in the hospital, Mrs. Kennedy visited her there on June 11th. The next time she saw her was late on July 5th, perhaps between five and six o’clock, P. M. Mrs. Kennedy came from her home in Knoxville on that date. We are of the opinion that a fair analysis of her testimony could lead to the conclusion that Cora L. Williams was mentally incompetent a few hours after this deed was executed, although in parts of her testimony she testified to conversations and acts indicating rationality.

This was all the evidence introduced by the plaintiff. It certainly cannot be said as a matter of law to outweigh the evidence tending to prove that Mrs. Williams was of sound mind and free from restraint or deception.

The second assignment of error is that the Court refused to allow Mrs. Kennedy to give her opinion as to Mrs. Williams’ mental condition. The record shows that she was permitted to testify fully as to the symptoms indicating mental condition. The question that confronts us is whether under the circumstances, the court’s rulings, taken as a whole, were so prejudicial as to require a reversal of this judgment. Let us analyze the witness’ testimony to determine this question.

Mrs. Kennedy testified that she stayed at the Williams’ home during the night of July 5th-6th, that she and Mrs. Berry had to keep Mrs. Williams in bed, that when they returned to the room on one occasion they found Mrs. Williams had gotten out of bed and was in a semi-sitting position on the floor and had soiled her bed. This would seem to indicate that she had tried to reach the bathroom, and would indicate physical, rather than mental weakness; that later they assisted Mrs. Williams to make a useless trip to the bathroom at her request, “she couldn’t walk very well,” that between June 11th and July 5th, she had telephoned to the Williams’ residence, but did not talk to Mrs. Williams; that medicine was administered to Mrs. Williams during the night of July 5th-6th, that Mrs. Williams was quite restless and complained of pain in her head during that night; that she had not had much experience in observing the mental condition of people, that some things Mrs. Williams said “I couldn’t understand them very well and what she said was said incoherently if that is any indication of her mental condition.” Thereupon, the witness was asked this question: “In your opinion when you arrived there on July 5th, was she rational or irrational?” The Court sustained an objection to this question. The plaintiff excepted to the ruling, but made no profert.

All the foregoing testimony was developed on direct examination. It was also developed that Mrs. Williams asked Mrs. Kennedy for a glass of water and that her hand trembled so much that Mrs. Kennedy steadied her hand while she drank a small amount.

On cross-examination, Mrs. Kennedy testified when she arrived at the Williams home late on July 5th, Mrs, Williams recognized and talked to her, that Mrs. Williams had false teeth, but that she did not have them in her mouth at the time she was talking to her, that she asked Mrs. Williams if she wanted her daughter — the plaintiff — notified, and she answered that she did not, and that she refused to change her mind about it, although Mrs. Kennedy urged her to do so, that on the night of July 5th-6th, she read from the Bible to Mrs. Williams.

Although Mrs. Kennedy’s testimony discloses that Mrs. Williams was physically very sick and weak on July 5th, there-is very little indication of mental disorder other than that naturally resulting from physical weakness. She conversed with Mrs. Kennedy, seemed to have positive views and answered responsively when asked whether she wanted her daughter notified. The strongest statement indicating mental condition is that she could not understand Mrs. Williams very well and what she said was incoherent. Her inability to understand Mrs. Williams perhaps resulted from the absence of teeth. Her statement that what Mrs. Williams said was incoherent was not elaborated upon, and there are varying degrees of incoherency or inconsistency. There certainly is as much in Mrs. Kennedy’s testimony indicating mental capacity as otherwise. We say this because we doubt very much whether a sufficient foundation was laid for the expression of an opinion by the witness. The witness herself seems to have doubted her qualifications to express an opinion on the decedent’s mental condition. However, we are not called upon to determine whether a proper foundation was laid.

As already noted, the plaintiff made no profert of the expected answer. The law is well settled that in the absence of a profert, a reviewing court is in no position to determine whether the error, if any, is prejudicial. In 2 O. Jur., (Pt. 1) page 339 (Sec. 169) it is said that:

“Furthermore, where evidence offered in chief is excluded, the party offering it must show what he expects to prove by the witness in order to enable the reviewing court to see if there has been error on account of the refusal of the court to receive the evidence.” See, also, Pace v. Buck, 86 Oh Ap, 25. It certainly is not at all clear how this witness would have answered this question. We would not be justified in assuming that the answer would have tended to prove the plaintiff’s allegations, especially in the absence of such a proferí. We, therefore, hold that no prejudicial error appears on the record in this regard.

The plaintiff offered no expert opinion evidence in chief and the defendants offered none in defense. In rebuttal, the plaintiff placed upon the stand a psychiatrist, who testified that he had seen and studied the hospital records relating to Mrs. Williams and had an opinion as to her physical and mental condition. The court sustained an objection to the question as to his opinion of her mental condition, and counsel preferred that, if permitted to answer, the witness would have said that on July 5th Mrs. Williams was totally confused mentally and wholly incapable of transacting any business. The reason given by the Court for sustaining the objection was that the plaintiff should have offered this evidence in chief rather than in rebuttal. This ruling of the court is the last assignment of error.

Both by statute (§11420-2 GC) and at common law orderly trial procedure requires that a plaintiff shall produce in chief all the evidence in support of the issues upon which he has the burden of proof, unless the Court for good reasons, in furtherance of justice, allows him to re-open his case. 39 O. Jur., 594, 644 and 645. In other words, the trial judge is vested with discretion and his exercise of that discretion cannot be disturbed by a reviewing court in the absence of a manifest abuse of his power. In this case, the plaintiff rested her case in chief without mentioning an intention to offer this expert’s opinion, and without asking the Court to permit its introduction out of order, and the defendants introduced their evidence and rested their defense on the assumption that the plaintiff would be confined to rebuttal evidence. This Court cannot say that the court abused its discretion in refusing to permit her to re-open her case in chief for the purpose of offering this expert testimony.

For the reasons given, the judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur.


author: By REYNOLDS, J.

text:
    NEW AMSTERDAM CASUALTY COMPANY, Plaintiff, v. SHUMAKER, Defendant.
    Common Pleas Court, Franklin County.
    No. 167242.
    Decided October 23, 1951.
    Richard Huggard and Gundy Lane, Columbus, for plaintiff.
    Jos. E. Shannon, Sater & Sater, Columbus, for defendant.
   OPINION

By REYNOLDS, J.

In this case plaintiff seeks to recover from the defendant monies expended by it in settlement of claims for property damage and personal injuries sustained as a result of a collision between defendant’s truck and an automobile owned by Raymond Dobson.

Plaintiff had issued a policy of insurance to Ward E. Lanning in 1941, insuring the said Lanning against liability for property damage and personal injuries occasioned by accident in the use of certain automobiles, trucks or trailers owned or hired by the said Lanning who held a permit from the Public Utilities Commission of Ohio covering his operations as a private carrier.

An endorsement on a form provided by the Utilities Commission was attached to the policy in question which endorsement provided in part as follows:

“The purpose of this endorsement is to make certain during the term of said policy and any renewals thereof the liability of the insurance company to any person injured in person or property within the state of Ohio by the negligence of the insured as hereinafter set forth.
“Whenever the word ‘insured’ appears in this endorsement it shall be held to mean the motor transportation company, or private motor carrier named in the policy, its agents and employees, and also held to mean any independent contractor of said motor transportation company or private motor carrier, engaged in transporting persons or property, or providing or furnishing such transportation, and also held to mean each employer of a private motor carrier authorized in its permit and registration against loss sustained by reason of the death of or injury to persons and the Loss of or damage to property resulting from the negligence of such private motor carrier its agents and employees.
“Ho condition, provision, stipulation or limitation contained in the policy or any endorsement thereon nor the violation of any of the same by the insured shall affect in any way the rights of any person injured in person or property within the State of Ohio by negligence of the insured while operating as aforesaid or relieve, the insurance company from the liability provided for in this endorsement or from the payment to such persons of any judgment within the limits set forth in the policy, but the conditions, provision, stipulations and limitations contained in the policy or any other endorsement thereon shall remain in full force and be binding ao between the insured and the insurance company. ’

In addition to equipment owned and operated by himself or his employees, Lanning from time to time hired other truckers to fulfill his contracts for hauling merchandise for third parties and pursuant to this practice, sometime prior to May 28, 1942, he contracted with defendant Dewey Shumaker, to haul freight from Coshocton to Vandalia, Ohio, Shumaker using his own tractor and trailer and furnishing his own gas and oil, and his own driver, and receiving from Lanning 70% of the freight charge received by Lanning from his customer.

Also prior to May 28, 1942, The Public Utilities Commission of Ohio issued to Lanning a certificate of convenience and necessity, and Lanning filed with the Commission a certificate of liability insurance issued by plaintiff to Lanning.

The petition alleges that on May 28, 1942 defendant, acting through an employee, while driving defendant’s truck back to Coshocton after having delivered a load of merchandise in Vandalia, negligently ran into an automobile, damaging it and injuring the occupants; that plaintiff settled the various claims, and seeks recovery for the same plus the sum of $200.00 as expenses in connection with the accident and settlements.

Defendant in his amended answer admits that his truck was involved in an accident while being used in the furtherance of Lanning’s transportation business, and admits that plaintiff as the insurer of Lanning made settlements for damages and injuries resulting from the accident but denies any liability on his part, and alleges that in accordance with his contract with Lanning, the latter hired from defendant both the equipment and the driver, and that at the time of the accident, the said driver was acting not as his agent and employee but as the agent and employee of Lanning, and that the insurance policy was for the protection of Lanning and that plaintiff under the terms of said policy was obligated to save Lanning harmless from any actions resulting from the operation of any and all trucks used in his business.

In a second defense defendant pleads that if plaintiff made any payments other than in strict compliance with the contract of insurance, it acted as a volunteer and cannot recover from defendant.

Upon trial a jury was waived and the case tried to the Court on a stipulation of facts together with some oral testimony.

The issue in the case is whether or not the policy of insurance issued by plaintiff to Lanning inured to the benefit of Shumaker. If it did, then of course there can be no recovery in this case as it is axiomatic that an insurer may not recover from the insured, for payments made pursuant to the policy provisions.

The stipulation of facts submitted in this case is as follows:

“1. That plaintiff is a corporation as alleged in the petition.
“2. That Exhibit ‘A’ attached hereto and made a part hereof is a policy of insurance issued by plaintiff to Ward E. Lanning, which was in full force and effect on May 28, 1942, and which covered all matters alleged in plaintiff’s petition and agreed with the said Ward E. Lanning to pay on his behalf all sums which the said Lanning shall become liable to pay by reason of the liability imposed upon him by law for damages for bodily injury up to the sum of Twenty-Five Thousand and no/100 ($25,000.00) Dollars for each person in each accident, and Fifty Thousand and no/100 ($50,000.00) Dollars for all persons in each accident, and for injury to or destruction of property, including the loss of use thereof, up to Five Thousand and no/100 ($5,000.00) Dollars, which injuries and damages shall have been caused by accident in the use of certain automobiles, trucks or trailers owned or hired by the said Lanning.
“3. That Exhibit ‘B’ attached hereto and made a part hereof is the permit issued by the Public Utilities Commission of Ohio under which the said Ward E. Lanning was operating on May 28, 1942.
“4. That the said Ward E. Lanning in operating under said permit and in the performance of contracts entered into thereunder, used his own vehicles and vehicles owned by others, to enable him to perform said contracts.
“5. That on May 28, 1942, there was in force an agreement entered into between the said Ward E. Lanning and defendant, whereby the defendant agreed to and did furnish a 1939 Ford Tractor and a Kingham Trailer and driver, paid for all gasoline and oil used in the operation thereof, and the wages of the said driver, and all repairs and maintenance upon said tractor trailer outfit during its operation under said agreement; and whereby the said Ward E. Lanning agreed to pay defendant as compensation, 70% of all freight charges collected-out of the operation of said unit under said agreement.
“6. That the tractor trailer outfit furnished under the agreement described in Section 5, was owned by defendant; was operated by one Elwood B. Shaw at all times set forth in the petition and that the said Elwood B. Shaw was a driver hired by defendant.
“7. That on May 28, 1942, the said tractor trailer unit was being operated by the said Elwood B. Shaw in a northerly direction on Ohio Route No. 16, near Conesville in Coshocton County, Ohio, having delivered a load of freight at Vandalia, Ohio, pursuant to said contract with said Lanning for said Lanning, and was returning to the place of business of Lanning in Coshocton for the purpose of obtaining more freight pursuant to said contract, and was then and there operating said tractor and trailer under and pursuant to Exhibit ‘B’.
“8. That at said time and place a 1933 Ford Sedan automobile owned by Raymond Dobson, and being operated by Paul Dobson was operated in a southerly direction upon said road and approaching the said tractor trailer outfit of defendant.
“9. That on May 28, 1942, a collision occurred near Cones-ville on Route No. 16 in Coshocton County, between the said tractor and trailer outfit of defendant and said 1933 Ford Sedan in which Paul Dobson, a minor 18 years of age, Lawrence Dobson, and Ross Dobson, a minor 14 years of age were riding.
“10. That the said Ward E. Lanning reported such collision to plaintiff promptly.
“11. That the said Raymond Dobson, Paul Dobson, Lawrence Dobson and Ross Dobson and/or the parents of said minors, presented claims to plaintiff for injuries and damage resulting from said collision.
“12. That on or about June 5, 1942, a demand was made by plaintiff upon defendant to take over or cause to be taken over, the investigation of said collision, the defense of such claims and the settlement thereof and the obtaining of releases from said claimants; and that defendant refused and at all times since, has refused to comply with said demand.
“13. That plaintiff investigated said collision and made settlements with the said claimants in the amounts stated in the petition taking releases therefor, releasing the said Ward E. Lanning, defendant Dewey Shumaker, and the said Elwood B. Shaw.
“14. That the amounts so paid out were expedient.
“15. That at all times stated in plaintiff’s petition tax cards and signs issued by the Public Utilities Commission of Ohio and the Interstate Commerce Commission to the said Ward E. Lanning were on defendant’s tractor and trailer unit for the purpose of identifying its use, and complying with all legal requirements.
“16. That all investigation, settlement and payments undertaken and made by plaintiff as described in this stipulation was in accordance with the terms of the insurance policy issued by plaintiff to the said Ward E. Lanning, and that in making said settlements plaintiff was legally bound to obtain a full and complete release of the defendant, and the said Elwood B. Shaw.
“17. That Exhibit ‘C’ attached to and made a part hereof is a copy of Supplement I to Administrative Order No. 125 made by the Public Utilities Commission of Ohio and that said order was in force on May 28, 1942.
“18. That the facts set forth in this stipulation are true, and that the stipulation, or any part thereof, may be read in evidence by either party at the trial and the exhibits attached hereto may be offered in evidence, subject to any objections by either party as to the relevancy of any stipulation or exhibit contained herein.”

The oral testimony supplementing the stipulation of facts was mainly directed to the determination of the effect of the contract between Lanning and Shumaker.

Plaintiff’s contention is that Shumaker was an independent contractor and as such not covered by the contract of insurance between plaintiff and Lanning, while it is defendant’s claim that the insurance policy issued to Lanning and supplemented by the endorsements required by the Public Utilities Commission was for his benefit as well as the benefit of Lanning.

The endorsement, which is in evidence as attached to the Policy of Insurance, marked as Exhibit “A,” and a part of which is set out in the petition, is claimed by plaintiff as intended for the benefit only of third persons suffering injuries or damages resulting from the negligent operation of any and all trucks operated by or for the named insured.

In support of this contention is filed in the case a decision of Judge Black of the Licking County Common Pleas Court in the case of New Amsterdam Casualty Co. v. Leon Nethers, in passing upon a demurrer to a petition substantially like the one in the instant case.

Inasmuch as the facts were practically the same as those here under consideration, the decision is set our in full as follows:

“This case comes before the Court upon a general demurrer to the petition. It is an action in subrogation.
“Plaintiff insured The McKee Truck Lines Inc., hereinafter referred to as McKee, in a casualty policy against bodily and property damage. The insured hired the defendant to carry out a certain hauling contract it had entered into, in the course of the performance of which an accident occurred and the insurer was called upon to and did settle certain damage claims growing out of such accident.
“Plaintiff recites that the insured was licensed by the P. U. C. O. to perform the transportation service so furnished in this case and also to contract for such performance in this case.
“Plaintiff also alleges the requirement by the P. U. C. O. of the compliance with the terms of the following endorsement upon the casualty insurance policy, to-wit:
“ ‘The purpose of this endorsement is to make certain during the term of said policy and any renewals thereof the liability of the insurance company to any person injured in person or property within the state of Ohio by the negligence of the insured as hereinafter set forth.’
“ ‘Whenever the word “insured” appears in this endorsement it shall be held to mean the motor transportation company, or private motor carrier named in the policy, its agents and employees, and also held to mean any independent contractor of said motor transportation company or private motor carrier, engaged in transporting persons or property, or providing or furnishing such transportation, and also held to mean each employer of a private motor carrier authorized in its permit and registration against loss sustained by reason of the death of or injury to persons and the loss of or damage to property resulting from the negligence of such private motor carrier its agents and employees.’
“ ‘No condition, provision, stipulation or limitation contained in the policy or any endorsement thereon nor the violation of any of the same by the insured shall affect in any way the rights of any person injured in person or property within the State of Ohio by negligence of the insured while operating as aforesaid or relieve the insurance company from the liability provided for in this endorsement or from the payment of such persons of any judgment within the limits set forth in the policy, but the condition, provision, stipulations and limitations contained in the policy or any other endorsement thereon shall remain in full force and be binding as between the insured and the insurance company.’
“Under this rider or endorsement on the policy, defendant claims that he was along with McKee an insured and as such was immune from liability to the plaintiff.
“In the opinion of the Court this endorsement upon the policy was solely for the benefit of the public and in no wise affected the legal status existing between the defendant and plaintiff, or concerned their contractual relations, if any.
“There does not appear to have been any privity or contract between the parties to this action. The defendant, it appears, was an independent contractor; he had bought no insurance from plaintiff and had paid no premium or in any way participated in the insurance coverage, except as provided by the endorsement on the policy which merely extended the benefits of this policy to any member of the public who might be injured in person or property. All other ‘conditions, provisions, stipulations and limitations contained in the policy or any other endorsement thereon, shall remain in full force and be binding as between the insured and the insurance company.’ The purpose of this endorsement is clear, merely for the sole benefit of the public, to extend its protection from damage to third persons, but not to alter the contractual relations between McKee and the plaintiff in any particular. If this is so, aside from its duty to settle damage done the public by the defendant, what immunity rights had the defendant? The protection against chance of damage was bought and paid for by McKee and not by defendant.
“Let us suppose there was no insurance to protect McKee from liability, then a person damaged would have recourse against both McKee, secondarily and its servant, the defendant herein, primarily, as joint tort feasors. A recovery against McKee, the master, by a person damaged by Nethers, the servant, would be recoverable by McKee against Nethers, the person responsible for the damage. Therefore, if the plaintiff herein paid the liability of McKee it is, in all right and justice, suDrogated to McKee’s right to recover against the defendant herein.
“In the last four lines on the first page of the petition appears the following allegation:
“ ‘Said contract of insurance specifically excluded any agreement to pay damages in the manner hereinafter set forth arising out of the liability of the owner of any automobile, truck of trailer hired by McKee as aforesaid.’
“This in so many words states that the policy of insurance itself reserves the right of recovery to McKee for liability from ‘the owner of any automobile, truck or trailer hired by McKee as aforesaid.’
“No copy of the insurance contract is before the Court, and for the purpose of this demurrer all allegations of the petition are to be taken as true.
“The case of Builders and Manufacturers Mutual Casualty Co., v. Preferred Automobile Insurance Co., 118 Fed. Reporter, 2nd series, page 118, et seq., while in some respects similar as to facts, does not turn upon the same issues or questions of law as the instant action, and the assumption that the ‘servant’ in the case cited is an ‘insured’ is an obiter dictum with which this Court cannot agree.
“The demurrer is overruled. Defendant shall plead within fifteen days.”

However, the Court in that case omitted certain provisions of the endorsement from which the above quoted portions were taken, and which in the opinion of this Court are controlling.

These same provisions were omitted by the plaintiff in its petition in which a part of the endorsement was set out.

Following are provisions of said endorsement considered by the Court as determinative of the issues in this case:

“In consideration of the premium stated in the policy to which this endorsement is attached, the insurance Company agrees to pay to the judgment creditor any final judgment rendered against the insured upon a liability hereunder within the limits set forth in the policy, and further agrees that upon failure of the insured to pay any such final judgment such judgment creditor may maintain an action against the Insurance Company in the proper court to compel such payment.
“For valuable consideration received by it, the said Insurance Company, by the policy of insurance to which this endorsement is attached, hereby insures and agrees to indemnify the insured during the term of said policy and any renewal thereof, against loss sustained by reason of the death of, oi any injury to, any person or persons, except employees of the insured engaged in the course of their employment, and for loss of or damage to property, including baggage and personal effects of passengers (in excess of $50.00), except property of the insured and cargo, within the State of Ohio, resulting from the negligence of the insured, while operating any vehicle or vehicles of any kind, character or description in motor transportation company service or private motor carrier service; whether or not such vehicle or vehicles be listed in said policy of insurance or with the Public Utilities Commission of Ohio. The foregoing is in addition to all liability from risks provided for in said policy. For the purpose of determining any additional premium due the Insurance Company the insured shall furnish the Insurance Company every thirty (30) days with a complete description of all vehicles used by the insured and not specifically described in the policy.”

The Supreme Court of Ohio had before it a similar question as to the scope of a liability insurance policy issued to a private carrier, with the identical endorsement as here involved, in the case of Wood v. Vona, 137 Oh St 91.

The second syllabus of that case is as follows:

“Such a policy which, by its terms, indemnifies the insured against loss sustained by reason of the death of or injury to any member of the public caused by the negligence of the insured, his agent (his servant), or his independent contractor, while acting as a private carrier under a permit issued by the Public Utilities Commission, covers the insured, his agent, his servant or his independent contractor in the movement of a vehicle coming from a repair shop; such movement is in the transportation service within the meaning of the policy, although such vehicle was not then being operated for the transportation of freight. (Mitchell, Admx., v. Great Eastern Stages, Inc., 140 Oh St, 137, approved and followed.)

The facts in that case, relating to liability and coverage are far less strong than those in the instant case.

There Glenn Cartage was a private carrier, operating under a permit from The Utilities Commission authorizing it to engage in certain transportation over the Public Highways of Ohio. Vona was the owner of a tractor and trailer and for sometime before the accident he had hauled exclusively for Green Cartage.

On June 22, 1942, he hauled a load of steel to Cleveland for Glenn Cartage. On the trip his tractor became disabled, but he finished the trip and returned to his home in Canton, and then drove his tractor to Akron for repairs and after this was finished he proceeded on July 5th to return to Canton to get his trailer expecting to report to Glenn Cartage on the 6th to secure another load to be hauled for that company, pursuant to instructions from an agent of said company. On his way to Canton he had an accident which resulted in the injured person securing a judgment against him in the sum of $10,000.

The judgment creditor then brought suit against The Ocean Accident and Guarantee Corporation, the insurer of Glenn Cartage, and one of the primary questions was whether the insurance policy in question protected Vona who admittedly was not named in the policy, nor was his equipment described.

Glenn Cartage as a private carrier had been required to carry liability insurance in accordance with §614-15 GC which provides as follows:

“No permit shall be issued by the commission to any private motor carrier until there shall have been filed with the commission a liability insurance certificate, policy or bond satisfactory to the commission in such sum and with such other terms and provisions as the commission may deem necessary adequately to protect the public, having due regard for the number of persons and amount of property affected, which certificate, policy, policies or bonds, shall insure the private motor carrier and each employer authorized in its permit against loss sustained by reason of the death of or injury to persons and the loss of or damage to property resulting from the negligence of such private motor carrier, its agents and employees. * * *” (Emphasis ours.)

It had filed with the Utilities Commission a liability insurance certificate, issued by Ocean Accident and Guarantee Corporation and the identical endorsement here under consideration was attached to the said certificate. In its decision the Court said:

“There is evidence in the record, which, if believed, would justify the conclusion that Vona was acting under the direct instructions of Glenn Cartage at the time of the collision. That narrows our question to what is meant by the following phrase, found in the Public Utilities Commission endorsement attached to and made part of the policy: ‘* * * while operating any vehicle or vehicles of any kind, character or description in motor transportation company service or private motor carrier service.’ (Emphasis ours.)
“Ocean insists that the policy covers the vehicles only while actually engaged in hauling. That contention was considered and repudiated by this court in a unanimous decision in the Mitchell case, supra. * * *
“Applying the legal principle announced in the Mitchell case to the situation here presented, to-wit, that the collision and damage occurred while the tractor, after being repaired, was being driven to a place to get the trailer and thence to the plant of Glenn Cartage to resume hauling for it, the conclusion is inescapable that during any or all parts of that operation the equipment was within the coverage of the policy. That is unmistakably true unless we were willing to recede from the position established by the Mitchell case. In the instant case the movement was in the transportation service within the meaning of the policy, although such vehicle was not then being operated for the transportation of freight.”

To the same effect is the decision in the case of Cook v. The Ocean Accident and Guarantee Corp., 138 Oh St 111.

In view of those decisions and the specific provisions in the endorsement attached to the policy of insurance to Lanning, wherein it is agreed by the insurer that in insures the insured during the term of the policy and then specifically provides that the word “insured” shall be held to mean the motor carrier named in the policy, its agents, employees and independent contractor of said motor carrier engaged in transporting persons or property, or providing or furnishing such transportation service, it seems clear that defendant was protected under the policy whether he was an independent contractor or an employee of Lanning.

From the evidence the Court concludes that he was an independent contractor, but coming within the express provisions of the contract of insurance as being insured therein and thereby there can be no recovery against him by the insurer.

It is therefore the judgment of the Court that plaintiff’s action be dismissed and that defendant recover his costs.

An entry may be drawn accordingly, saving such exceptions as are desired.


author: By THE COURT: By WISEMAN, J: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. GRIFFIN, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 127.
    Decided January 24, 1952.

      Richard P. Faulkner, Pros. Atty., Urbana, for plaintiff-appellee.
    Harvey Crow, St. Paris, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of the State by the Prosecuting Attorney

“to vacate an entry of this Court of date November 15, 1951, ordering a stay of execution of sentence of the Juvenile Court of Champaign County, Ohio, in Case No. 725, State of Ohio v. Harold Griffin, upon said defendant giving bond in the sum of $2000.00 pending appeal; and further moves the Court to vacate the bond given in pursuance to said above described order and to remand the defendant to proper custody for the execution of sentence of the said Juvenile Court; for the reason that no appeal has been perfected in said proceedings by the defendant, and more than thirty (30) days has elapsed since the entry of judgment and sentence of the said Juvenile Court.”

From the transcript of docket and journal entries the following material filings and facts appear. Defendant-appellant was charged with encouraging and contributing to the neglect of a minor child. After a plea of not guilty, the jury was impaneled and sworn, cause tried and the jury on the 9th of October, 1951, returned a verdict of guilty as charged in the complaint. October 11, 1951, Motion for new trial. October 24, 1951, Motion for new trial overruled. On the 26th of October, 1951, defendant filed his notice of appeal with the Trial Court from a judgment returned by the Juvenile Court October 24, 1951. On the 8th of November, 1951, the defendant was sentenced to pay a fine of $500.00 and costs and to serve one year in the workhouse in the City of Columbus, Ohio. On the 26th of October, 1951, appellant filed in the Court of Appeals for Champaign County, a motion reciting that

“he has this day filed a notice of appeal in the Juvenile Court of Champaign County, Ohio and desires to appeal to the Court of Appeals from the judgment rendered by the Juvenile Court and requests the permission of the Court of Appeals to file said proceedings in the Court of Appeals.”

Notice of this motion was filed upon the Prosecuting Attorney of Champaign County. On the same date, defendant filed a motion in the Appellate Court, Champaign County, asking a reduction of the bond of defendant as fixed by the Juvenile Court and this motion was sustained and the bond reduced to $2000.00. The Prosecuting Attorney did not appear nor object to the reduction of the bond.

It will be noted that at the time the orders were made in the Court of Appeals no sentence had been imposed upon the defendant on the verdict of the jury although the motion for new trial probably had been overruled.

The Prosecuting Attorney claims that no appeal has been perfected and that, therefore, the orders of the Court of Appeals are without effect and should be set aside. Counsel for the appellant contends that the notice of appeal and the copy thereof served upon the Prosecuting Attorney was sufficient notice of defendant’s purpose to appeal continuing subsequent to the sentence and judgment; that under the broad power of the Court of Appeals to permit an amendment to a notice of appeal defendant’s motion to so amend, which he has filed, should be sustained. In support of this claim Couk, et al v. The Ocean Accident & Guarantee Corp., Ltd., 138 Oh St 110 is cited. It is urged that the action of this Court of Appeals in granting the defendant leave to appeal meets the requirement of the statute and finally that appellee having filed its brief on the merits in answer to appellant’s brief in this Court has conceded that the appeal was perfected.

Sec. 13459-1 GC defines what judgment in a criminal case may be reviewed. The language in so far as is pertinent reads,

“In a criminal case, * * *; a judgment or final order of a Court or officer inferior to the Court of Appeals may be reversed in the Court of Appeals;”

and the proceedings to review are defined in §13459-3 GC in this language,

“The proceedings to review such judgment or final order, shall be by appeal which shall be instituted by filing notice of appeal with the court rendering such judgment or order and with filing a copy thereof in the appellate court where leave to appeal must be obtained.” (Emphasis ours.)

In the procedure on appeal in civil cases §12223-3 GC provides that,

“Every final order, judgment or decree of a court and, * * * may be reviewed as hereinafter provided”

and §12223-5 GC provides that,

“The notice of appeal shall designate the order, judgment, or decree appealed from”

This section also provides that,

“the notice of appeal may be amended by the appellate court in the furtherance of justice for good cause shown.”

Sec. 12223-4 GC provides that,

“The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court, * * *. Where leave to appeal must first be obtained, notice of appeal shall also be filed in the appellate court. After being duly perfected, no appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.”

It is manifest from the foregoing provisions of the Code that an appeal lies only from a judgment or final order and that an appeal is perfected by the filing of the requisite notice which confers jurisdiction upon the reviewing Court.

A verdict of a jury is not a judgment or final order. In a criminal case the sentence is the judgment of the Court. Until it is pronounced, there is no final order because the Court may sustain a motion for new trial or some other motion which would preclude the pronouncement of the judgment of sentence. Unfortunately for the defendant in this case, at the time that he served his notice of appeal, there was no judgment and his notice could not properly refer to any final order. When the bond was reduced the judgment had been pronounced but there had been no new notice of appeal filed.

In the cases of Couk, et al v. The Ocean Accident & Guarantee Corp. Ltd., supra and the case of Mosey v. Hiestand, Trustee, 138 Oh St 249, a case appealed from this Court and reversed upon the authority of the Couk case, the notices of appeal were filed subsequent to a judgment. In the former case the date of the final order was improperly stated and in the Hiestand case the final order to which reference was made was of the date that the motion for new trial was overruled. While these cases afford support for the claim that the reviewing court has the widest discretion in permitting an amendment to a notice of appeal where at the time it was filed a final judgment had been entered they are not authority for the right to amend a notice of appeal given when there was no judgment or final order to which it could be directed. At the time the notice of appeal was filed in this case there was no basis for an appeal — nothing to which it could apply. It was a nullity and cannot be recognized for the purpose of an amendment.

Decided April 15, 1952. Decided June 10, 1952.

Without a proper notice of appeal filed in the trial court and directed to a judgment of that court, no appeal can be effected and no jurisdiction 'vested in the reviewing court. This is the situation developed in this case and the orders of this court, though made upon the supposition that air appeal pended, were made without jurisdiction and therefore were void.

The motion of the State must be sustained.

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

APPEAL ON QUESTIONS OF LAW

No. 127.

OPINION

By WISEMAN, J:

This is an appeal on questions of law from the judgment of the Juvenile Court of Champaign County. Defendant was charged with encouraging and contributing to the neglect or dependency of James Robert Dunlap, a minor two years of age. The jury returned a verdict of guilty on which the Court entered judgment and pronounced sentence.

Defendant-Appellant assigns eleven separate grounds of error. First, the defendant contends that the affidavit does not charge an offense. The essential parts of the affidavit are as follows:

“On or about the 1st day of July 1951. and since that time in July, August and September, 1951, in the County of Champaign aforesaid, one Harold Griffin, residing at Springfield, Ohio did encourage and contribute toward the neglect or dependency of the following child, to-wit:
“James Robert Dunlap, age two years, in that he, the said Harold Griffin, encouraged and contributed to the lack of proper parental care due to the faults and habits of the mother of said child, namely, Martha Dunlap, and the neglect by the said mother of the care necessary for its health, morals and well-being; and encouraged and contributed toward conditions and environment such as to warrant the state, in the interests of said child in assuming its guardianship;
“contrary to the statute in such case made and provided and against the peace and dignity of The State of Ohio.”

The affidavit charged an offense under the provisions of §1639-45 GC, which provides that whoever encourages or contributes toward the dependency or neglect of a child shall be fined etc. Sec. 13437-34 GC, as amended effective August 23, 1945 in part provides: “The provisions of law as to form and sufficiency, amendments, objections and exceptions to indictments and as to the service thereof shall apply to such affidavits and warrants issued thereon.” Sec. 13437-4 GC provides:

“In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statements may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged.” (Emphasis ours.)

In our opinion these statutory provisions are applicable to this proceeding. It was sufficient to charge the offense in the language of the statute. Sec. 1639-3 GC defines “neglected child” to be any child “2. Who lacks proper parental care by reason of the faults or habits of its parents, guardian or custodian.” (Emphasis ours.)

The affidavit charged that the defendant encouraged and contributed “to the lack of proper parental care due to the faults and habits of the mother of said child.” Sec. 1639-4 GC defines “dependent child” to be any child: “3. Whose condition or environment is such as to warrant the state, in the interest of the child, in assuming its guardianship.” The affidavit charged that the defendant encouraged and contributed “toward conditions and environment such as to warrant the state, in the interest of said child in assuming its guardianship.” In our opinion the affidavit was sufficient to give the accused notice of the offense of which he was charged.

In support of his contention that the affidavit failed to charge an offense by omitting to allege facts which constituted neglect or dependency and the failure to allege that said child was a neglected or dependent child, the appellant cites the following cases; Edmonds v. State, 30 Oh Ap 195; Peefer v. State, 42 Oh Ap 276; State v. Krauss, 81 Oh Ap 453, and State v. Zaras, 81 Oh Ap 152. The first three cases cited were decided prior to the amendment of §13437-34 GC, which became effective August 23, 1945. The Peefer and Krauss cases are distinguishable from the instant case on other grounds. In the case of State v. Zaras, the affidavit did not charge an offense in the words of the statute, or allege facts which constituted an offense under the statute. In the instant case the affidavit sufficiently charged an offense in the words of the statute, which is permissible under §13437-34 GC. State v. Yudick, 155 Oh St 269; City of Columbus v. Highsmith, 85 Oh Ap 149. If seasonably requested, the Prosecuting Attorney could have been required to furnish a bill of particulars. Sec. 13437-6 GC.

It was not essential to expressly allege in the affidavit that the child was a “neglected” or “dependent” child. Fisher v. State, 84 Oh St 360; State v. Van Horn, 32 Abs 406.

It is contended that there is no proof that the child was a neglected or dependent child and that, therefore, the defendant could not be guilty of encouraging or contributing toward the neglect or dependency of said child. The Prosecuting Attorney presented as evidence over the objection of the defendant the record of a separate proceeding in the same court in which the child was adjudged to be a neglected and dependent child. The claim is made that with the exception of the court record in the other proceeding which involved the same acts of misconduct, there is no proof to support the verdict and judgment. After the close of the State’s case, the defendant moved for a directed verdict which was overruled, and then rested. Thus, the case went to the jury on the evidence presented by the State. The principal witness for the State was the mother of the child who testified that she and the defendant, who was not her husband, over a period of several months immediately prior to the institution of this proceeding, have engaged in illicit sexual relations which occurred in the presence of the child. It was incumbent upon the state to prove the child to be a neglected or dependent child and we are of the opinion there was sufficient competent evidence to prove the child to be neglected or dependent within the meaning of the statute. The case at bar is distinguishable from State v. Hannawalt, 26 Abs 641 where the complaint not only charged “contributing to the delinquency” but, also, “acting in a manner tending to contribute to the delinquency.”

It is not a prerequisite that the child be adjudicated as a neglected, dependent or delinquent child in a separate proceeding before a charge of contributing toward such neglect, dependency or delinquency of such child can be maintained. State v. Zaras, 81 Oh Ap 152, 155; Anss v. State, 16 Oh Ap, 502, 504; State v. Van Horn, 32 Abs 406, 408; Clements v. State, 3 Abs, 541. However, in this case it is contended that the admission of the court record in the separate proceeding constituted reversible error. In our opinion, the introduction of the court record in the separate proceeding was not erroneous. Fisher v. State, 84 Oh St 360, 369; Anss v. State, 16 Oh Ap, 502, 504; Clements v. State, 3 Abs, 541. However, if the admission of the record was erroneous, we cannot say it was prejudicially erroneous. In the absence of the record, there was sufficient undisputed competent evidence to support the verdict. There was no conflict in the evidence to be resolved by the jury. The defendant presented no evidence. The admission of incompetent evidence does not constitute reversible error unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby. Sec. 13449-5 GC; State v. Hickman, 77 Oh Ap 479; State v. Fouts, 79 Oh Ap 255.

We find no prejudicial error in the admission of evidence; neither do we find that the court committed prejudicial error in its charge to the jury.

Failure to read the definition of “reasonable doubt” as set forth in §13442-3 GC, does not constitute reversible error where the Court’s charge on reasonable doubt is substantially in accordance with the definition set forth in that section. Although, the Court’s charge on reasonable doubt was not in the language of the statute, we are of the opinion that there was substantial compliance. Beck v. State, 129 Oh St 582; Youngstown v. Ponikwa, 54 Abs 510. The failure to give in the charge of statutory definition of “neglected child” or “dependent child” was an error of omission and not commission, and does not constitute reversible error. If the charge as given is correct and not misleading the failure to charge on some aspect of the case is not reversible error unless the Court’s attention was seasonably called to the omission and specific instructions requested and refused. Rhoades v. City of Cleveland, 157 Oh St 107; State v. Tudor, 154 Oh St 249; Bachman v. Ambos, 83 Oh Ap 141; Kleinhans v. American Gauge Co., 83 Oh Ap 453; Vol. 39 O. Jur., Page 1006 et seq., Section 297. In the instant case the complaint sets forth in the words of the statute the acts of which the defendant was charged. This complaint was read to the jury, which was followed by an instruction that before the jury could find the defendant guilty, the state must prove beyond a reasonable doubt the allegations in the complaint to be true. The charge as given was correct and not misleading to the jury.

In our opinion, prejudicial error was not committed in sending copy of the Court’s charge to the jury room. Sec. 13442-8 GC, expressly provides that “Written charges and instructions shall be taken by the jury in their retirement and returned with their verdict etc.”

We find no error committed in refusing to direct a verdict for the defendant, in overruling defendant’s motion to dismiss; neither do we find the verdict to be against the manifest weight of the evidence or contrary to law.

In the trial of almost all cases of some consequence errors are committed, but a reviewing court is required to disregard any errors unless the accused is mislead or prejudiced thereby, or unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby, or was prevented from having a fair trial, §13449-5 GC.

After an examination of the entire record and a careful consideration of the errors assigned, we find no error assigned well made. We are of the opinion that the defendant has had a fair trial and that justice has been done.

Judgment affirmed.

HORNBECK, PJ, MILLER, J. concur.

ON MOTION TO CERTIFY

No. 127.

OPINION

By THE COURT:

Submitted on motion to certify on the ground that the judgment of this Court is in conflict with the judgment in the case of State v. Zaras, 81 Oh Ap 152. In our original opinion we distinguished the case of State v. Zaras and do not believe that there is a conflict in the judgments.

Motion overruled.

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