author: By BRYANT, J.

text:
    THOMAS, Trust, In re.
    Ohio Appeals, Tenth District, Franklin County.
    Nos. 5873, 5874.
    Decided April 29, 1958.
    John H. Summers, Robert L. Barton, Columbus, for Trustee-Appellant.
    Edwin M. Tuttle, Robert Newlon, Columbus, for May T. Hrobon and Emil M. Hrobon.
    Frank J. Collopy, Columbus, for Fred H. Johnson, Trustee.
    Earl F. Morris, Columbus, for Purchasers and Remainderman,
   OPINION

By BRYANT, J.

Within a period of less than one month, late in 1957, four appeals on questions of law and fact, were filed in this court by the late Harry B. Holmes, as trustee of the trust created under the will of Clay M. Thomas, deceased. We shall make brief reference to said appeals by date of filing notice of appeal, referring to them as the first, second, third, or fourth appeal.

The first appeal, No. 5840 (notice of appeal filed November 18, 1957), complained of an order of the Probate Court of Franklin County, Ohio dated November 9, 1957 directing Judge Holmes, as trustee, who had for many years been under a $200,000 bond, within ten days from the date of said order to furnish an additional fiduciary bond in said trust for the penal sum of $1,550,000.

The second appeal, No. 5869 (notice of appeal filed December 10, 1957), complained .of an order of the Probate Court of Franklin County, Ohio dated December 9, 1957 removing the said Judge Holmes, as trustee of the said trust, for failure to furnish an additional bond of $1,550,-000 within ten days from the date of the order of November 9, 1957. Said order appointed Fred H. Johnson as successor trustee.

The third appeal, No. 5873 (notice of appeal filed December 17, 1957), complained of an order of the Probate Court of Franklin County, Ohio dated December 12, 1957 removing the said Judge Holmes, as trustee of the said trust, in response to a motion filed by Emil M. Hrobon, as.signee of life tenant, upon certain specified objections to the manner of administering the trust made by the said Hrobon.

The fourth appeal, No. 5874 (notice of appeal filed also on December 17, 1957). complained of a further order also dated December 12, 1957 by the Probate Court of Franklin County, Ohio wherein the said Probate Court assessed and allocated costs and appointed Fred H. Johnson as successor trustee of the Clay M. Thomas trust.

Heretofore, in case of the third appeal (No 5873), counsel for Judge Holmes had moved to consolidate all aforesaid appeals. It also has been officially brought to the attention of this court in each of the said cases that the said Judge Holmes died February 18, 1958. It will also be recalled that following the death of Judge Holmes, counsel for the various parties in interest on March 10,1958 assembled in open court upon' invitation of this court and discussed the effect of the death of Judge Hoimes on the various matters pending. Thereafter in an opinion dated March 18, 1958 this court, in passing upon the question of consolidating the four separate appeals above referred to, dismissed the said motion as to the first appeal (No. 5840) and the second appeal (No. 5869) upon the ground that it appeared that all concerned were in agreement that the questions involved in the said first and second appeals were moot and that application would be forthcoming dismissing said appeals.

Under date of March 15, 1958 applications to dismiss were filed in the first and second appeals by William W. Holmes and Robert E. Holmes, administrators of the estate of Harry B. Holmes, and this court has heretofore considered said dismissal applications and finding them well taken, has sustained them.

The said decision of March 18, 1957 overruled the motion to consolidate the third and fourth appeals ordering that they retain their separate numbers as at present but authorizing consideration of the two cases together, both by way of argument and brief. Reserved also was the included question as to the appointment of a referee to receive and consider evidence relating to said appeals and prepare a report to this court setting forth his findings of fact and conclusions of law.

At the same time the applications to dismiss were filed in the first and second appeals and applications to revive were filed in the third and fourth appeals. The said two applications to revive are in like form and read as follows:

“William W. Holmes and Robert E. Holmes inform the Court that Harry B. Holmes, appellant herein, died on February 18, 1958, and that they are the duly appointed, qualified and acting administrators of said decedent’s estate.
“Said administrators request that this appeal be revived in respect of Harry B. Holmes, appellant, in the names of William W. Holmes and Robert E. Holmes, administrators of the estate of Harry B. Holmes, deceased.”

The counsel for the administrators aforesaid in a memorandum accompanying the application for revival rely upon §§2307. 25, 2311.21, 2311.-23, 2311.25. 2311.28 and 2311.34 R. C.

Sec. 2311.26 R. C., provides in part as follows:

“A revivor may be effected by the court, or a judge thereof in vacation, by allowing a motion of the representative or successor in interest to become a party to the action, or by supplemental pleading alleging the death of the party, and naming his representative or successor in interest upon whom service may be made as in the commencement of an action. * * *”

In opposition to this application, counsel for the assignee of the life tenant in his answer memorandum contends that neither the successor trustee nor the administrators of the estate of the deceased trustee have any interest in either the third or fourth appeals and therefore they should not be revived. The position of the assignee of the life tenant as stated on the first page of his memorandum of April 2, 1958 is as follows:

“The basic action here was the motion to remove the trustee on the grounds of incompetency and for the best interests of the trust. This is a personal action undefendable by either the subsequent trustee or the personal representative of the deceased trustee. The new trustee has no interest in the action as his duties start on his appointment. The personal representative of the estate of the deceased has no interest in the action because if he was successful in the appellate courts it would not reinstate the trustee.”

In reply, counsel for the administrators of the estate of Judge Holmes say that because of the provisions of §2311.21 R. C., it can not be successfully urged that this action is moot. Said section as amended January 1, 1958 provides as follows:

“Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a judge of a county court for misconduct in office, which shall abate by the death of either party.”

In our opinion, the application to revive the so-called third and fourth appeals in the names of the administrators of the estate .of the late Judge Holmes should be granted. It is true in the third appeal the principal question is whether or not the lower court was correct in removing Judge Holmes, as trustee, but it is also clear that there are secondary questions arising in which the administrators have a real subsisting interest.

It may well be that a question remains as to the amount of compensation which was due to the late Judge Holmes and the correctness of the determination as to his removal may have an important bearing on the matters included in the fourth appeal having to do with the assessment and allocation of costs and expenses.

At one of the hearings relative to the amount of bond on appeal it was suggested that the costs and expenses already accrued were a sizeable figure, perhaps between $40,000 and $50,000. It was our understanding at the time that said figure was exclusive of any amount which might properly be due as counsel fees for attorneys representing the several parties in interest.

On behalf of the assignee of the life tenant it is urged that the new or successor trustee has no interest in the .action “as his duties start on his appointment.” Whether or not such successor trustee has or does not have an interest in the litigation, the outcome of which might involve a considerable amount of the trust, we do not here decide nor is it necessary for us to do so for there is no application pending upon the part of the successor trustee either to revive or to be made a party

In light of our holding about said appeals there remains one further question reserved from the earlier motion asking this court to refer this case to a suitable referee to receive and consider evidence relating to said appeals and to report to this court the findings of fact and conclusions of law.

As before stated, all of the appeals referred to herein are appeals on questions of law and fact and counsel for the administrators of the estate of the late Judge Holmes have stated in unequivocal terms that they desire a trial de novo. It would appear clear that they have an unquestioned right to such a trial. Therefore, this court will sustain the motion for the appointment of a referee and in due course will notify counsel of such appointment.

PETREE, PJ, MILLER, J, concur.


source: Caselaw Access Project

author: By HOLTSBERRY, J.

license: Public Domain

text:
    ALTEN et, Plaintiffs, v. BARNECUT et, Defendants.
    Common Pleas Court, Fairfield County.
    No. 29246.
    Decided May 9, 1958.
    Abram Cunix, Lancaster, for plaintiffs..
    Hite & Hite, Thornville, H. Wilferd Keller, Baltimore, for defendant, Helen Lucille Parrish.

      Judson C. Kistle.r, Lancaster, for defendants Richard E. Barnecut, Paul Barnecut, Gertrude Colley and Mary Jane Craig.
    (HOLTSBERRY, J, of the Licking County Common Pleas Court, sitting by special designation in the Fairfield County Common Pleas Court.)
   OPINION

By HOLTSBERRY, J.

Paui W. Alten died testate on November 10, 1957, and'his wife, Edna r. Alten, died testate, 20 days later, on November 30, 1957. There was no issue of said marriage. Both wills have been admitted to probate.

Said last will and testament of Edna T. Alten was made and executed 12 days subsequent to the death of her said husband.

The will of Paul W. Alten provided for payment of just débts and funeral expenses, the payment of several small bequests, and the rest and residue was given, devised and bequeathed to his wife, Edna T. Alten, absolutely and in fee simple.

The defendants, Richard Barnecut, Paul Barnecut, Gertrude Colley and Mary Jane Craig, are the surviving brothers and sisters of said Edna T Alten, and are the sole legatees and devisees named in her will. The defendants Anna McClelland, Robert E. Alten and Lucille Parrish, are the children of one Columbus C. Alten, who predeceased his brother, Paul W. Alten, and the plaintiffs herein, Joseph T. Alten and Mary Josephine Russell, are the surviving brother and sister of said decedent, Paul W. Alten.

This action is for declaratory judgment to determine heirship in the estate of Paul W. Alten, by reason of his surviving spouse having died within a period of 30 days after the death of said Paul W. Alten.

Contrary contentions are presented to the Court by counsel regarding the distribution of the residuary estate of Paul W. Alten, under Item 5 of his will as affected by the provision of §2105.21 R. C. Effective as of October 16, 1953, §2105.21 R. C., was amended to read as follows:

“When there is no evidence of the order in which the death of two or more persons occured, no one of such persons shall be presumed to have died first and the estate of each shall pass and descend as though he had survived the others. When the surviving spouse or other heir at law, legatee or devisee dies within thirty days after the death of the decedent, the estate of such first decedent shall pass and descend as though he had survived such surviving spouse, or other heir at law. legatee or devisee. A beneficiary of a testamentary trust shall not be deemed to be a legatee or devisee within the meaning of this section. This section shall prevail over the right of election of a surviving spouse.
“This section shall not apply in the case of wills wherein provision has been made for distribution of property different from the provisions of this section. In such case, such provision of the will shall not prevail .over the right of election of a surviving spouse.”

Since the last revision of this section, two Ohio Appellate Courts have been concerned with, and have discussed its construction and interpretation; Weir, Exex., v. Weir, 102 Oh Ap 231, and Barrick v. Fligle, 103 Oh Ap 511.

Counsel for certain defendants contend that these cases are not decisive of the instant problem in that the circumstancs herein are distinguished. He points out that in the appellate decisions, supra, neither had the existing fact that the survivor made a will within the 30 day period after death of decedent. Further, it is argued that the instant case is controlled by the part of §2105.21 R. C., added on October 16, 1953:

“This section shall not apply in the case of wills wherein provision has been made for distribution of property different from the provision of this section. . . .”

True the amendment uses the word “wills,” but this Court rejects the contention that we must consider the will of Edna T. Alten as well as the will of Paul W. Alten which would provide distribution different from the provisions of §2105.21 R. C.

The Legislature intended reference to wills of the .first deceased and not to wills by another executed within the following 30 days.

Section 1.10, subsection (c) states that: “Words in the plural number include the singular number, and words in the singular number include the plural number.”

To hold the statute had reference to any will other than that of the original testator would be contrary to the Legislative intent, and thus defeat the purpose of the statute. A contrary construction would permit the surviving spouse to usurp the power of the deceased spouse by exercising authority over property not actually inherited until the expiration of the 30 day statutory period.

Sec. 2105.21 R. C., defines the right of inheritance to property to those who die within the 30 day period, and under the circumstances therein described. It was the obvious purpose of the Legislature in the enactment of this section to prevent inheritance by surviving spouse when such surviving spouse, having died within 30 days, could have no need or use of it, and thus permit both her estate and that of the first-decedent to pass to her heirs.

The present statute amends former §10503-18 GC, which early enactment was held to be a valid and constitutional act in the case of Ostrander, Admr., v. Preece, Admr., 129 Oh St 625.

The purpose of this “succession statute,” is to provide that, if, any of those named therein die within the 30 day time limit, the property of that person who has died first shall “pass and descend,” as though the person who died first died intestate, unless there is an exemption as to the effect of this statute contained in the will. Barrick v. Fligle, et al, 103 Oh Ap 507. (A motion to certify the Barrick Case was overruled by the Ohio Supreme Court, April 17, 1957.)

There is no provision in the will of Paul W. Alten for distribution of property different from the provision of §2105.21 R. C. The use of the words “absolutely and in fee simple,” in themselves do not adequately manifest a clear indication, and are not sufficient definite langua.ge of intention or desire on the part of Paul W. Alten for distribution of property different from that provided for by the statute and the later will of his surviving spouse could not act as a substitute for providing such.

It is the opinion of this Court that the surviving spouse, Edna T Alten, having died within the 30 day period provided by the statute, must be considered as not having inherited any of her husband’s estate, and the estate of first decedent, Paul W. Alten, shall pass and descend as though he had survived such surviving spouse. Property given to the surviving spouse must then be considered intestate property of first decedent and to be distributed in accordance with law as to his heirs at law.


author: Per CURIAM:

text:
    UHL, Guardian, Plaintiff-Appellee, v. ARMSTRONG, Defendant-Appellant. UHL, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23854.
    Decided January 23, 1957.
    Beach & Warner, Ira J. Warner, of Counsel, B. K. Manning, for plaintiff-appellee and defendant-appellee.
    I. R. Rosenblatt, for defendant-appellant.
   OPINION

Per CURIAM:

The plaintiff is the owner of an undivided one-half fee simple interest in the property here in question. The only interest of such owner, by reason of such undivided one-half interest in the property, as to the remainder, is that of unity of possession with the owner or owners of the other one-half interest. The defendant is the owner of a life estate derived from the former owner of the other undivided one-half interest in the property. At the death of the defendant, the will of such former owner of the last mentioned one-half interest provides that such undivided one-half interest shall pass in fee simple to the children or lineal descendants of the defendant per stirpes but if there are no lineal descendants, then upon the death of the defendant, a life estate passes to the plaintiff (incompetent) with remainder over in fee to her lineal descendants. The separate and distinct undivided ownership of a one-half interest in real property, whose only interest in the whole property, other than that which he pwns, is unity of possession, is a tenant in common and, under the statute, can maintain an action in partition. The fact that a former co-tenant has willed to such part owner a contingent interest in the other half interest in the property can in no way affect such right of partition.

We also hold that a designated heir can inherit from but not through the designator.

For the above reasons, the motion for rehearing is overruled. Exceptions noted.

KOVACHY, PJ, SKEEL and HURD, JJ, concur.


text:
    COLUMBUS (City), Plaintiff-Appellee, v. GLOVER, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5825.
    Decided February 25, 1958.
    Russell Leach, City Atty., Bernard T. Chupka. City Pros., Howard P. Lowe, Asst. City Atty., Columbus, for plaintiff-appellee.
    Isadore L. Margulis, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

E. S. T. Glover, defendant-appellant, h.erein called defendant, was tried in the Columbus Municipal Court, found guilty and sentenced upon the charge of failure to stop, etc. after an accident. A motion for a new trial was overruled and after sentence and judgment, Glover appealed to the Common Pleas Court of Franklin County where the judgment of the Municipal Court was affirmed and the appeal dismissed.

Glover has appealed to this court on questions of law from the judgment of the Common Pleas Court affirming the said Municipal Court. While there are five assignments of errors, the argument on behalf of the defendant is limited to the single question of whether or not the prosecution offered sufficient proof of the corpus delecti to render admissible certain confessions or admissions alleged to have been made by the defendant.

The first witness, Dino Bisutti, the owner of a car which was damaged late at night while parked in front of his home, testified that he was awakened by a policeman at which time he learned that someone had collided with his car (bill of exceptions, p. 6). Bisutti said he went with the policeman and a few blocks away located “a wrecked car, a green one, like it showed on mine.” (Bill of exceptions, p, 7.) In the answer immediately following the above, Bisutti explained that it was green paint left on his car by the car which collided with it stating, “There was green paint on my car where it was hit, see.” He further testified that at the address where the wrecked green car was found the officer went inside and came out in a few moments with E. S. T. Glover, defendant herein.

Up to this point in the record there had been neither any admission or confession offered in evidence. In order to establish the corpus delecti and thereby make a confession admissible, the prosecution is not required to prove the charge beyond a reasonable doubt nor even make a prima facie case, it being sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged. State v. Maranda, 94 Oh St 364.

The rule as to corpus delecti having been fully met, the testimony of Mr. Bisutti as to admissions made by the defendant is pertinent, particularly as to a visit by the defendant to Bisutti’s home a week later concerning which the record shows the following:

“Q55. What did he have to say when he came over to your house? A. Well, he said that he was forced by another car to hit my car. In other words, he said he was sorry about it because he didn’t mean to hit my car. He hit it because another car came in the opposite direction and forced him to go into it.”
“Q56. At that time he told you that he hit your car? A. That’s right.”

Also relevant was the testimony of Patrolman Jimmie Bellar observing that the right front fender of defendant’s car had extensive damage and was smashed back against the wheel and the headlight was broken (bill of exceptions, p. 17) and his statement that the defendant first told him that a friend, Bob Allen, had been driving.

Also of importance was the testimony of Police Officer Walton Altenberger in which defendant admitted failing to stop after the accident, gave as his excuse that he did not want to be arrested for drunk driving Altenberger quoted the defendant as follows (bill of exceptions, p. 23):

“He stated that while he was in the bar Mr. Allen brought his car back to him and parked it in the vicinity of Don’s Bar. At approximately eleven a. — p. m. that evening Mr. Glover came out of the bar, got in his car and was traveling north on St. Clair Avenue, and, in the-vicinity of Second Avenue, due to the narrowness of the street, there was a car coming south approaching Mr. Glover. He pulled to his right to give enough clearance for the cars to pass and he misjudged his distance and struck this car parked at the curb. After he struck the car he continued on St. Clair Avenue to the vicinity of 775 East Second Avenue and parked his car in the rear of his residence, got out and looked at the damage on his car, and at that time he stated he found that the right front fender had been smashed in. He continued on in the house and went to bed. Asked him why he didn’t stop at the scene of the accident. He stated he didn’t want to be arrested for drunk driving and he didn't think any damage had been done to the other car parked at the curb.”

It should be noted further that the testimony of the complaining witness and the police officers, here referred to quoting the defendant, were not formal confessions admitting the commission of a crime, but were admissions against interest, which when taken with other testimony in the case, were fully adequate to sustain the verdict of guilty.

For the reasons above set forth the assignments of errors are not well taken and must be overruled. The judgment of the Common Pleas Court and the judgment and sentence of the Columbus Municipal Court will, therefore, be affirmed, the appeal will be dismissed and the case remanded to the Municipal Court for execution of sentence.

PETREE, PJ, MILLER, J, concur.


author: By MILLER, J.

text:
    STATE, Plaintiff-Appellee, v. MORGAN, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5858.
    Decided March 18, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Joseph M. Clifford, Asst. City Atty., Columbus, for plaintiff-appellee.
    Isadore Margulis, Columbus, for defendant-appellant.

      (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court affirming that of the Municipal Court finding the defendant guilty of practicing medicine in violation of §4731.41 R. C.

Although six assignments of error are made, they all relate to the sufficiency of the evidence to support the charge.

Now. the practice of medicine is defined by §4731.34 R. C., which in part provides that one is engaged in the practice of medicine,

“* * * who examines or diagnoses for compensation of any kind, or prescribes, advises, recommends, administers, or dispenses for compensation of any kind, direct or indirect, a drug or medicine, appliance, application, operation, or treatment, of whatever nature, for the cure or relief of an * * * infirmity, or disease, * * (Emphasis ours.)

The record clearly reveals that on February 8, 1957, the appellant had no license to practice medicine; that on said date, by appointment, he examined one Robert J. Morgan in his office located on Oak Street, Columbus, Ohio: that Morgan explained his ailment to the defendant who replied, “Well, I will examine you,” which he did by using a certain machine Upon completion of examination the defendant advised the patient, ‘T think that you have a little sluggish mitral valve.” After this diagnosis the defendant gave him three pills to take immediately and said, “We will wait about fifteen minutes.” After waiting this period of time he again checked the patient with the machine and gave him a bottle of pills, saying, “I think that will straighten you up.”

It appears further that the patient then paid the defendant the sum of $3.50. stating that he still owed him for the medicine. The appellant urges that the alleged medicine consisted of vitamin pills and therefore was not a medicine. However, this appears' to be immaterial, for the services performed by the defendant consisted of a treatment for a bodily infirmity or disease, which constitutes the practice of medicine under §4731.34 R. C.

At the conclusion of the state’s case the defendant moved for a dismissal, which was overruled. Thereupon the defendant rested, and offered no evidence in denial of that presented by the prosecution. The weight of the evidence clearly indicates the guilt of the defendant ana therefore the court came to the proper conclusion.

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

BRYANT and HORNBECK, JJ, concur.


author: By PHILLIPS, J.

text:
    WILEY, Plaintiff-Appellee, v. WILEY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 751.
    Decided May 31, 1957.
    Riddle & Riddle, Lisbon, for plaintiff-appellee.
    Baughman & Bush, Wellsville, for defendant-appellant.
   OPINION

By PHILLIPS, J.

On September 12, 1956, the Juvenile Court of Columbiana County. Ohio, to which the case we review was certified by agreement of counsel, rendered the following decision on defendant’s motion for a new trial:—

“The court makes the following finding of facts in the above case In February, 1954, the defendant left the plaintiff to visit her mother. The evidence indicates that she left originally without the knowledge of the plaintiff, although he soon became acquainted with this fact. The evidence also shows that plaintiff and defendant have not lived together as husband and wife since February, 1954, up to and including the present day. That they had no contact with each other by ietter or otherwise except three or four times by telephone.
“The evidence indicates that there was no attempt at any time by the defendant to re-establish the home at the place of the plaintiff’s employment, namely the U. S. Coast Guard, or in any manner perform any of the duties of a wife, and that said condition continued for two years prior to the filing of the petition in this case.
“The court did err in basing the divorce upon the grounds of gross neglect of duty, since it is not alleged in the petition, although the evidence warranted the same. Therefore, the decision of the court is amended, and the court finds plaintiff entitled to the divorce on grounds of willful absence, and an amended journal entry showing same may be filed. Leave also is granted to the plaintiff if he desires, to amend his petition on the ground of gross neglect of duty. If this is done, however, the court will grant a new trial so that the defendant may contest the matter in this issue. If it is not done, then the divorce will be granted on the grounds of willful absence for more than one year, and motion is overruled.”

The written decision of the trial judge sets forth sufficiently his findings to understand the nature of the case in the Juvenile Court.

From the judgment of the trial court defendant, appealed to this court on questions of law assigning as grounds of error that the trial judge erred prejudicially to defendant in granting plaintiff a divorce without corroborating evidence in violation of §3105.11 R. C., and in finding against the manifest weight of the evidence.

There is evidence that marital difficulties existed between the parties for approximately six months prior to January 1951, which on January 18, 1954, resulted in plaintiff leaving the parties’ trailer home to stay for a relatively short period of time at the Coast Guard Station, where he was employed, for the purposes, as he testified, to permit his wife to collect her thoughts regarding such difficulties and to “cool off.”

Plaintiff testified that it was his intention when he left the trailer to return in a few days, which he did, only to find defendant had left. Plaintiff maintained the trailer for approximately two months after defendant left, and which trailer he was willing to re-establish as a home or to re-establish a home elsewhere. Plaintiff further testified that he called defendant by telephone and was advised not to call her again because his calls upset her, and that she never communicated with him; and that the parties had not lived together as husband and wife since January 1954. The evidence discloses that defendant believed it impossible on her part to live with plaintiff again as his wife.

In an action for divorce the pleadings and evidence must be construed liberally by the trial judge in determining the rights and liabilities of the parties for their best interests. See Kent v. Kent, 20 Abs 61. In this duty he is permitted a wide discretion. See Widican v. Widican, 23 Oh Ap 271.

The trial judge- having seen and heard the parties and observed their actions obviously could better determine the weight to be given to the evidence than this reviewing court. This court will not disturb the judgment of the trial court unless it is so manifestly against the clear weight of the evidence as to shock the conscience of this court. This court is determining only whether the trial judge erred prejudicially to defendant.

In 17 O. Jur. (2nd), Page 729, Section 71, it is said:—

“The granting of a divorce upon the testimony or admissions of a party, unsupported by other evidence, is expressly prohibited. The purpose of the statute is to prevent collusion in obtaining a divorce decree
“Corroborating testimony must pertain to material elements essential to the proof of the ground for divorce set out in the petition; however, the provisions of §3105.11 R. C., do not require corroborative testimony of each and every material fact testified to by the plaintiff. Such corroborative evidence may be oral, or documentary, or both.”

Plaintiff admits by brief:—

“It is true, as claimed in defendant-appellant’s brief, and as evidenced by the record, that plaintiff-appellee’s witnesses, at the time of trial testified only to the grounds of extreme cruelty; but, the record further discloses (pages 22 to 31 inclusive) that the admissions of defendant-appellant, on direct and cross-examination, furnishes the necessary corroborating testimony to show that defendant-appellant’s absence from the home of the parties was both intentional and voluntary, and that the same was purposely and designatively carried out.”

We concur in the foregoing statement as we believe sufficient corroborating evidence was admitted to meet the requirements of §3105.11 R. C. Testimony of defendant is sufficient corroboration.

Sec. 3105.11 R. C., provides as follows:—

“A judgment for divorce or for alimony shall not be granted upon the testimony or admissions of a party unsupported by other evidence No admission shall be received which the court of common pleas has reason to believe was obtained by fraud, connivance, coercion, or other improper means. The parties, notwithstanding their marital relation, shall be competent to testify in actions and proceedings under §§3105.01 to 3105.21, inclusive, R. C... to the same extent that any other witness might.”

Obviously the question arises whether plaintiff having left the parties’ trailer home first has so dirtied his hands as to deny him the right to take advantage of defendant’s alleged misconduct. Answering this question plaintiff argued orally and by brief that:—

“* * * he has not been guilty of any misconduct, in the course of events, which would render his hands unclean and thus bar him of the relief sought.
“In this instant cause, it is true that plaintiff-appellee did leave the trailer home of the parties herein for a few days in order to allow defendant-appellant to collect her thoughts regarding their marital difficulties. It further appears, that it did not take defendant-appellant long to determine that she now had an opportunity to abandon the home and her husband with whom she had not been happy for some time. * * *
“Also this record discloses, by defendant-appellant’s testimony that she was informed by plaintiff-appellee’ of his reasons for going to the Coast Guard Station to stay, and that he had no intent to abandon the home but that he would return thereto, which he did a short time thereafter. Thereupon, within a period of time defendant-appellant did leave the trailer home and go to New Jersey to reside with her mother.”

In our opinion the foregoing argument clearly and correctly states the facts as shown by the bill of exceptions. We conclude that plaintiff came into court with clean hands so as to permit him to maintain the action we review.

The judgment of the trial court is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By FESS, J.

text:
    BENJAMIN et, Appellees, v. COLUMBUS (City) et, Appellants. FERGUSON et, Appellees, v. COLUMBUS (City) et, Appellants.
    Ohio Appeals, Second District, Franklin County.
    Nos. 5529, 5530.
    Decided February 7, 1957.

      McLeskey & McLeskey, Owen B. Sherwood, Columbus, for appellees.
    Chalmers P. Wylie, City Atty., Russell Leach, Chief Counsel, Columbus, for appellants.
    (FES'S and DEEDS, JJ, of the Sixth District; HUNSICKER, J, of the Ninth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeals on questions of law and fact from a judgment entered in Ferguson v. Columbus, No. 187,169 in the Common Pleas Court, permanently enjoining the defendant from the enforcement of Ordinances numbered 156-53, 157-53 and 1615-54. Benjamin v. Columbus, No. 191,975, was consolidated with the Ferguson case in the trial court and upon the appeals, the two cases are consolidated herein for retrial. The Ferguson case attacks the constitutionality of Ordinances 156-53 and 157-53, whereas the Benjamin case relates to Ordinance 1615-54. By stipulation, it is agreed that each action includes the three Ordinances in question.

A digest of the averments of the petition as well as the salient provisions of the 1953 ordinances are reported in Ferguson v. Columbus. 70 Abs 277, and are not repeated herein. The answer in the Ferguson case admits that the City threatens to enforce the provisions of the ordinances against plaintiffs and merchants with whom plaintiffs have contracts.

On July 19, 1954, the Common Pleas Court, based upon a well-considered opinion, in which it concluded that the 1953 ordinances were not violative of constitutional provisions, entered judgment for the defendant upon the pleadings. Upon an appeal on questions of law, this judgment was reversed, essentially on the ground that issues of fact were presented upon the pleadings that required a trial. Ferguson v. Columbus, 70 Abs 277. In its opinion, the Court of Appeals made certain suggestions with respect to the licensing and seizure provisions of the 1953 ordinances, which are carried in the headnotes of its opinion.

■ In its opinion, the Court of Appeals concludes “that the ordinances, given full force and effect, if the averments of the petition are proven, do not authorize, nor purport to empower, the defendant officers with the right to confiscate the machines, or to arrest and imprison the merchants with whom plaintiffs have contracts.” The Court also says that “it is not necessary to decide the issues of the constitutionality of the ordinances except in so far as is required to determine if, upon any theory, the sustaining of the motion for judgment on the pleadings was proper,” and that “we do not hold the ordinance is invalid because it characterizes as a nuisance the operation of a machine therein described ‘which tends to encourage gambling.’ It is the method of making determination of this essential of a nuisance as a basis of a seizure of the machine which we cannot support.”

After the Court of Appeals decision in the Ferguson case was announced, the defendant, no doubt as a result of such decision, enacted Ordinance 1615-54 on December 7, 1954. This ordinance provides that whoever shall have in his possession, custody or control any table game or device commonly known as “pin game,” “pin-ball game” or “marble game,” the operation, use or play of which is controlled by placing therein any coin, plate, disk, plug, key or other token, or by the payment of a fee, shall be guilty of a misdemeanor, etc. The purpose of this supplementary ordinance is rather ineptly stated in the preamble.

These ordifiances tacked onto the chapter of the Columbus Code relating' to gambling, are complex, contradictory, and bear the mark of having been hastily drawn and considered without that degree of care and clarity of expression which should attend legislative enactments. We concur in the suggestions made in the Ferguson case, 70 Abs 288, that the ordinances should be shortened and codified into simple, con-r cise and clear phraseology.

In March. 1955, the Benjamin case was filed, attacking the 1954 ordinance. On May 9, 1956, the Common Pleas Court found that a municipality has no authority to prohibit the use and operation of pinball machines which are merely designed and utilized for amusement purposes only. 73 Abs 143. A decree was entered permanently enjoining the defendant from interfering with the ownership, etc., of pin games by the plaintiff and any merchant with whom plaintiffs have contracts for the operation of such games so long as they are not used for gambling.

A century ago an eminent jurist declared that an application for injunction is addressed to the sound discretion of the court. Spencer, J., in Commercial Bank v Bowman (1855) 1 Handy, 246. This discretion reposed in a court of equity is to be exercised in the light of all circumstances surrounding the application for relief by way of the injunctive process.

The Council of Columbus, in the exercise of its legislative function pursuant to its inherent police power and as conferred upon it by the Ohio Constitution, has declared that pin games (not gaming devices per se) are detrimental to public morals in that they tend to encourage gambling, register odds or a score, or are adapted, or may be readily converted into a machine, device or instrument that is adapted for use in violation of other provisions of the chapter relating 4to gambling.

The ordinance also characterizes the operation of such a machine a nuisance. We are aware that the Supreme Court of Ohio has said that the mere declaration in an ordinance that it is enacted to protect public safety, health or morals will not render it valid under the police powers. Youngstown v. Kahn Bros. Bldg. Co., 112 Oh St 654. And if a municipal ordinance has no reasonable relation to the morals, health and safety of the people of a municipality, it is an unauthorized exercise of the police power. Youngstown v. Kahn Bros, etc., supra; 37 Amer. Juris., 927.

But the ordinances in the instant case not only contain a general declaration that pin games are detrimental to public morals, but also the specific grounds which in the opinion of the legislative body makes such games detrimental. Council may have recognized the ancient adages that ‘‘a foies bolt is soone shotte” (Taverner, 1539), and “a fool and his money is soon parted” (Howell, 1645). Council in its wisdom may have concluded that mechanical whirr accompanied by the glitter of the flickering lights engendered by the erratic peregrination of the metallic bails recording mounting scores appeal to the gambling instinct and cupidity of the moronic wastrels who may play the machines for amusement only. Council has concluded that there are devices in addition to “one-arm bandits” which entice the gullible to gleefully fiddle away their time and substance in parting with their nickels and dimes.

An ordinance of a municipality can not be overthrown by a court unless such legislation is clearly arbitrary, unreasonable or unrelated to the public health, morals, safety, or welfare of the community. It is not for the courts to determine the wisdom of the legislation, but its constitutional validity, and a court may not substitute its judgment for that of the legislative body as to the necessity for or wisdom of the legislation. Stary v. Brooklyn, 162 Oh St 120. 134. Furthermore, a court will not substitute its judgment for the discretion of municipal legislative authorities, who are presumed to be familiar with the local needs and conditions, so long as the provisions do not clearly transcend the limits of reasonableness. 28 O. Jur. 498.

Over objection, parties plaintiff engaged in the leasing of pin games, testified that their non-free play machines were operated for amusement only and did not tend to encourage gambling or loitering. This opinion evidence, given by witnesses interested in the outcome of the litigaton, does not meet, much less overcome, the legislative declaration, presumptively true, that such machines tend to encourage gambling and loitering. These interested witnesses also testified that it would take up to four or five days for an expert mechanic to convert a machine to free play.

There is also evidence that the conversion can be made in a much shorter period. Eut. accepting the exaggerated period at face value, we cannot hold that the Council was wrong in declaring that such machines are readily convertible. A presumption of legality and good faith attends the adoption of an ordinance until it be clearly established that the Council has exceeded its powers, or that it acted in bad faith, or has abused its discretion. 28 O. Jur. 501. Although we might agree with the opinion expressed by the operators and disagree with that of the Council, we may not substitute our opinion for that of the legislative body.

Incident to obtaining the relief herein sought, the plaintiffs are also confronted with another insurmountable presumption. The cardinal rule in the interpretation of ordinances is to ascertain, declare and give effect to the legislative intent, which is to be gathered from the provisions of the enactment and the apparent purpose of the law as applied to the evil at which it is aimed. Toledo v. Wagner, 57 Oh Ap 160. It is repeatedly held in Ohio that a clear incompatibility between a law and the Constitution must exist before the judiciary is justified in holding the law unconstitutional, and the party asserting unconstitutionality must clearly show it. 10 O. Jur. 2d, p. 248. A legislative function will not be interfered with by the courts unless such power is exercised in an arbitrary or unreasonable manner in violation of constitutional guaranties, and the facts to justify interference with the sound discretion of the legislative body must clearly appear from the evidence, and, if debatable, the legislation will be upheld. Cleveland Trust Co. v. Brooklyn, 92 Oh Ap 351.

Plaintiffs seek to draw a distinction between the power of a municipality to “prohibit” and its power to “regulate,” as provided in Sec. 3, Art. XYII1 of the Constitution. They apparently concede that the power to regulate includes the power to prohibit that which is inherently evil, but contend that the power to regulate does not include the power to prohibit that which is not inherently evil or is legitimate. 10 O. Jur. 2nd, 506. If a business is not harmful, the prosecution of it can not be lawfully prohibited to one who will conduct such business in a lawful manner. Thus it has been held that the following businesses do not bear such a relation to the public health, welfare, safety, or morals as to justify their restrictive regulation: commercial photographing, selling flowers, watchmaking, and painting, paperhanging, plastering and mason work (10 O. Jur. 2nd, 504); also slaughtering of chickens (Simon v. Cleveland Heights, 46 Oh.Ap 234); street sales of ice cream, soft drinks, candies, etc. (Frecker v. Dayton, 153 Oh St 14); Frecker v. Zanesville (CP) 35 O. O. 234; Schul v. King (CP) 35 O. O. 238); trafficking in amusement tickets (Heller v. Cleveland [CP] 25 O. O. 106, 37 Abs 545); and weighing and measuring (Cincinnati v. Broadwell, 3 O. Dec. Repr. 286). Cf 10 O. Jur. 2nd, 507. But these authorities do not go to the extent of holding that a municipality may not prohibit that which has evil potentialities, such as is declared under the ordinances in question. Cf. Myers v. Cincinnati, 128 Oh St 235, 238.

Furthermore, that which is legitimate may be prohibited incident to the regulation of an evil. For example: ninety-nine percent of uninspected meat may be perfectly wholesome and its sale legitimate, but in the interest of protecting the consuming public from the one percent which may be unwholesome and deleterious, the sale of wholesome uninspected meat may be prohibited. Dayton v. Jacobs, 120 Oh St 225; Cf. Cleveland v. Terrill, 149 Oh St 532; Crown v. Cleveland, 125 Oh St 455 (sale of corn sugar). As stated in the Crown case, drastic regulations of private business have been repeatedly held to be constitutional, citing Marmet v. State, 45 Oh St 63; Phillips v. State. 77 Oh St 214; Sanning v. Cincinnati, 81 Oh St 142; Renner Brewing Co. v. Rolland, 96 Oh St 432; State v. Norval Hotel Co., 103 Oh St 361; Holsman v. Thomas, 112 Oh St 397; Dunn v. State, 122 Oh St 431. See also dissenting opinion of Taft, J., in Frecker v. Dayton, 153 Oh St 14, 23. It is readily observed that incident to the exercise of the power to regulate, otherwise legitimate activities which do not comply with the regulations may be prohibited.

There is a clear cut distinction between that class of articles which have been declared unlawful and a public nuisance by statute or by ordinance and may be seized and disposed of forthwith and the class of property which is lawful in its ordinary and proper use and becomes contraband only when used in an unlawful manner and where there is a determination to that effect in a court of competent jurisdiction. Grieb v. Dept. of Liquor Control, 153 Oh St 77, 81, citing Wagner v. Upshur, 95 Md. 519, 52 A. 509; Edson v. Crangle, 62 Oh St 49, 56 N. E. 647; State v. French, 71 Oh St 186, 292, 73 N. E. 216; In re Estate of Weisenberg, 147 Oh St 152, 70 N. E. 2nd, 269.

There is likewise a distinction between a pin-ball game which has been declared unlawful and a nuisance and the so-called “fish net” cases referred to in the Grieb case.

Notwithstanding the constitutional safeguard of religious freedom, conduct of business pursuits, including sports, may be validly prohibited on Sunday.

Since regulation, as the term is used in the Constitution, includes prohibition, in order to grant relief we must find that the prohibitory regulation herein involved has no reasonable relationship to the public morals or public welfare. It is to be borne in mind that the burden is not upon the city to sustain the constitutionality, but the burden is on the plaintiff to clearly show that enactments are unconstituional. It is our conclusion that the plaintiffs have failed to show that such prohibitory regulations are unreas'onable and arbitrary or that they have no real or substantial relation to the morals or general welfare of the people of Columbus.

In its opinion in Ferguson v. Columbus (195-1), 70 Abs 277, the court, without being required to do so, said that the power granted in the 1953 ordinance to police officers an.d licensing officials to determine that the operation of a pinball machine “tends to encourage” gambling is too broad and is a judicial power which cannot be delegated to enforcing or licensing officials. In our opinion this invalidity has now been removed by the enactment of Ordinance 1615-54, prescribing a standard for licensing and seizure of pinball machines, which the Council has declared tend to encourage gambling, register odds or scores, and are readily convertible to free play. Admittedly this conclusion is debatable, but the doubt must be resolved in favor of' constitutional validity. As a general rule, a law which confers discretion on an executive officer or board, without establishing any standards for guidance, is a delegation of legislative power and unconstitutional; but when the discretion to be exercised relates to a police regulation for the protection of the public morals, welfare, safety or general welfare, and it is impossible or impracticable to provide such standards, and to do so would defeat the legislative object sought to be accomplished, the legislation conferring such discretion may be valid and constitutional without such restrictions or limitations. 7th Par. Syllabus in Matx v. Curtis Cartage Co., 132 Oh St 271.

In the light of the foregoing observations, the ordinances are not in violation of the Fourteenth Amendment. Murphy v. California, 225 U. S., 623.

In conclusion, plaintiffs in each case have failed to show:

1. A clear incompatibility between the ordinances and the Ohio Constitution,

2. That the ordinances bear no real and substantial relation to the public health, safety, morals or general welfare of the public, or are arbitrary or unreasonable.

3. That plaintiffs are entitled to injunctive relief.

The petition in each case should be dismissed at plaintiff’s costs. Judgment for defendant in each case and causes remanded to the Common Pleas Court for execution for costs. See journal entry to be submitted to Hunsicker, P. J., for approval.

DEEDS and HUNSICKER, JJ, concur.

      . We are advised that the headnotes of the opinion of the Second District Court of Appeals appearing in the Ohio Law Abstract were neither prepared nor approved by the Court.

      . “Whereas, the operation of pinball machines and similar machines involving chance or skill or reward encourages gaming and the general disorder incident thereto, and is a threat or menace to the peace and morals of the community, and
      “Whereas, even the so-called amusement-only pinball machines are so constructed as to be almost identical in appearance and operation to certain gambling devices per se; and
      “Whereas, even the vast majority of such so-called amusement-only devices are readily convertible to gambling devices; and
      “Whereas, the operation of even amusement-only pinball machines has become and now constitutes a nuisance in that it encourages a false sense of values, idling, and loitering; and
      “Whereas, an emergency exists in that such pinball machines are now generally absent from the city, but will return unless immediately prohibited; and for the immediate preservation of the public peace and safety; now, therefore:” etc.'

      . Although Westerhaus Co., Inc., v. Cincinnati, 165 Oh St 327, was not announced until June 11, 1956, free-play machines are excluded from the injunction.

      . See 70 Abs 284, wherein Sec. 2938 is quoted in full.

      . “The proposition is well established that ordinances of a municipality must not be unreasonable or arbitrary; but it is equally well-settled that courts should not substitute their judgment for the legislative discretion and do not pass upon the wisdom or expediency of an ordinance.” Dayton v. Kresge Co., 114 Oh St 624, 629. citing Allion v. Toledo, 99 Oh St 416.

      . It is of some significance that these witnesses were unfamiliar with the interior mechanism of the machines and that the plaintiffs did not elect to introduce the testimony of expert mechanics who must hgve been available, regarding the manner of conversion and the time and skill reqftiired,

      . “The constitutional provisions relied upon by plaintiff in error protect the citizen in his right to pursue any lawful business, but they do not prohibit legislation intended to control pursuits which because of their nature have injurious and harmful possibilities. Even if the slot machine involved in his case is manufactured and intended for lawful operation, its potentiality and design is such that it may , be easily put to lawful use. The regulation or prohibition of such a mechanism need not be postponed until such event occurs.”
      “The city has the right to determine whether the exhibition, maintenance and operation of slot machines as defined in the ordinance are prejudicial to the public good.” Myers v. Cincinnati, supra.
      As in the instant case, the defendant contended that the particular slot machine was for amusement only. The statement of facts indicates that the machine was used for gambling but the import of the decision is that even though it be used for amusement only, the city could prohibit it on account of its potentiality.

      . “The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted. The legislature has so considered it, and the judiciary cannot say that the legislature was mistaken, and, therefore, the act is unconstitutional, without passing out of its legitimate sphere, and assuming a right to supervise the exercise of legislative discretion in matters of mere expediency.” State v. Powell, 58 Oh St 324, 335.


author: By HURD, J:

text:
    ROBERTO, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24554.
    Decided June 5, 1958.
    Harrison, Spangenberg & Hull, for petitioner.
    Jones, Day, Cockley & Reavis, Thomas P. Mulligan, of Counsel, for respondent.
   OPINION

By HURD, J:

The petitioner, Dr. Daniel P. Roberto, a practicing physician in the City of Cleveland, has invoked the original jurisdiction of this court for the purpose oí obtaining a writ of Habeas Corpus to release him from technical arrest on a mittimus issued for contempt of a notary public because of his refusal to answer certain questions propounded to him during the course of a hearing by way of deposition in two cases now pending in the Court of Common Pleas of Cuyahoga County. The principal case is a suit by Katherine Nykowski for personal injures alleged to have been sustained as a result of the negligence of the defendant, Ohio Bell Telephone Company, arising from an automobile accident. The second suit is by her husband for alleged loss of his wife’s services due to the injuries sustained by her. The arrest is technical only because the physician has been placed in the constructive custody of plaintiff’s counsel pending a decision on the questions of law here presented.

The record shows that the petitioner is plaintiff’s physician and that ,his refusal to answer certain questions is based entirely upon his claim of privilege due to the physician-patient relationship.

The record shows that on July 25, 1956, the deposition of plaintiff. Katherine Nykowski, was taken by her for the sole purpose of perpetuating her testimony to be used, if necessary, in both of the actions pending in the Court of Common Pleas. In this deposition she voluntarily testified that after she engaged the petitioner as her attending physician, he examined her, prescribed medicine and rest; that she related her complaints to him and he continued to prescribe medicine and that eventually he referred plaintiff to a heart specialist, Dr. Henry A. Zimmerman, who ¡examined her thoroughly and reported his findings in writing to the petitioner; that she did not testify that she had received any diagnosis or prognosis from her physician and that she had no knowledge as to his findings or those of the heart specialist.

Sometime later the defendant proceeded to take the testimony of the petitioner by deposition with no waiver of privilege obtained. It was at this time that the petitioner exercised his privilege on behalf of his patient and refused to answer any questions relating to matters to which his patient had not testified.

The record of the deposition show's that the plaintiff testified fully as to hei injuries, symptoms and complaints — headaches, heart pounding, difficulty in breathing, inability to sleep, sweating, nausea, lack of appetite and pain in neck, shoulders, and arms; that by reason thereof, she consulted the petitioner sometime in June of 1955, who thereupon examined her and prescribed certain medication and rest; that she continued to consult the petitioner and was still under his care July 21, 1956, the date of her deposition; that the petitioner referred her to several other doctors for treatment when she would contact him at night in emergency situations; that prior to the accident she was employed and active and never experienced the symptoms which have existed since the accident.

In the deposition hearing, the petitioner testified as to the dates on which he had seen the plaintiff, the complaints which she communicated to him, the fact that he made an examination of the heart, lungs, eyes, ears, throat, neck, head, chest and abdomen; that the examination of the heart was by stethoscope and by palpation; that he made subsequent examinations directed principally to the neck and the chest, including the heart; that he made certain findings; that he prescribed certain drugs and rest; that initially he made a presumptive diagnosis of her condition but later arrived at a firm diagnosis by reason of the effect of the drugs on her condition, and that this diagnosis was confirmed by a Basal Metabolism Rate test made at St. John’s Hospital; that he referred the plaintiff to the heart specialist in order to determine the relationship of his findings to the automobile accident and that after examination, Dr. Zimmerman made a written report to him. The petitioner, although testifying concerning communications made to him by his patient, refused throughout the deposition to state his findings and to state his diagnosis. He took the position that he could not testify to anything more than what his patient had testified to in her deposition.

Counsel representing both parties, by way of brief and by oral argument, nave cited and discussed the case of In re Loewenthal, 101 Oh Ap 355, 134 N. E. 2d 158, decided by this court May 3, 1956, in which we held as appears by the first syllabus as follows:

“1. A person testifying for his own benefit as to his injuries and communications made by him to his physician and the physician’s treatment and advice to him in a deposition hearing instituted by him for the purpose of perpetuating his testimony in her personal injury suit, thereby waives the privilege against the physician’s testimony as to the same matters already disclosed by him, and in such case the physician may be compelled to testify, by deposition, at the instance of the defendant, on the same subject as provided by §2317.02 R. C.”

In the Loewenthal case, the physician refused to answer any questions. The issue presented was whether or not the physician could be compelled to testify by way of deposition in a case where the patient had voluntarily testified by deposition solely for her own benefit and for the purpose of perpetuating her own testimony. In that case, we followed the words of the statute to the effect that a physician, when called to testify by deposition at the instance of the defendant, was required to “testify on the-same subject” as provided by §2317.02 R. C.

However, the issues in the case at bar require a further delineation of what is meant by the words “on the same subject” as provided by the statute where plaintiff voluntarily testifies in her own behalf in order to perpetuate testimony by deposition and presents the question as to the extent the patient waives the physician-patient privilege by her voluntary testimony. The pertinent parts of §2317.02 R. C., read as follows:

“The following shall not testify in certain respects:
“(A) An attorney, concerning a communication made to him by his client in that relation or his advice to his client; or a physician, concerning a communication made to him by his patient in that relation, or his advice to his patient, but the attorney or physician may testify by express consent of the client or patient, or if the client or patient be deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of such deceased client or patient; and if the client or patient voluntarily testifies, the attorney or physician may be compelled to testify on the same subject.” (Emphasis added.)

In the Loewenthal case, we adverted to the proposition that there was no physician-patient privilege at common law and hence, being in derogation thereof, the privilege should be strictly construed against the person asserting it. Citing Weis v. Weis, 147 Oh St 416, 72 N. E. 2d, 245, 169 A. L. R. 668; Clifford v. Denver & Rio Grande Rd. Co., 188 N. Y. 349, 80 N. E. 1094; Munzer v. Swedish American Line, 35 F. Supp. 493.

For the purpose of determining the question here presented, we shall consider the Ohio decisions which relate generally to the question of privilege between physician and patient, attorney and client, which are applicable to the case at bar.

While at common law, there was no physician-patient privilege, there was a privilege which extended to the relationship of attorney and client irrespective of statute. For this reason, we think the case of Spitzer v. Stillings, 109 Oh St 297, 142 N. E. 365, while involving the attorney and client relationship, may be considered by way of analogy to have a direct bearing on the issue here presented. Syllabus two of that case provides:

“2. By virtue of §11494 GC (§2317.02 R. C.), if a party voluntarily testifies as a witness in his own behalf any attorney to whom communications may have been made by such party in the relation of attorney and client, may be compelled to testify upon the same subject concerning which such party has voluntarily offered testimony, even though no reference was made in the testimony of such party to any communications having been made. * * *”

At page 301, Chief Justice Marshall, speaking for a unanimous court, declared:

“* * * It is contended, however, by counsel for Spitzer & Coats, that the statute refers to the subject of the communications between client and attorney, and not to the subject of the controversy. The answer to this proposition is that, if it is sought to limit the scope and application of the word ‘subject,’ such limitation should have been defined by the Legislature itself, and that, in the absence of any limitation, it should be taken in an unlimited and unrestricted sense. If the Legislature meant the word ‘subject’ to be confined to the subject of the communications between the client and attorney, it could easily have so stated, and, in the absence of that limitation, it is more probable that it was intended to include the subject matter of his testimony generally. * * *”

Another case of importance which does involve the physician-patient relationship is Baker v. Industrial Commission, 135 Oh St 491, 21 N. E. 2d 592, the syllabi of which read:

“1. Under §11494 GC (§2317.02 R. C.), privileged communications between patient and physician may be either (1) by exhibition of the body to a physician for examination or treatment, or (2) oral or written communications between patient and physician. The physician may not testify in respect to either unless there is express consent by the patient or a waiver in reference thereto.
“2. Where a patient voluntarily testifies that his right leg was free from boils and scaly condition before a certain injury but that thereafter it was all swollen up, sore and scabby, and that he was sent to a certain physician, a skin specialist, for treatment, there is a waiver in respect to the condition of his right leg and the physician may therefore testify on that subject.
“3. Where such patient does not voluntarily testify in respect to any verbal communications between himself and the physician, there is no waiver in regard to any such verbal communications so as to permit the physician to testify on that subject.” (Emphasis added.)

It will be noted from the foregoing that privileged communications between patient and physician may be by exhibition of the body to the physician for examination or treatment as well as by oral or written communications between physician and patient and that a physician may not testify in respect to either unless there is a waiver in reference thereto. It will be noted from syllabus two that where a patient voluntarily testifies concerning his physical condition that thereby there is a waiver in respect to the condition concerning which he testified. As will be noted by syllabus three, where the patient does not voluntarily testify to any verbal communications between himself and the physician, there is no waiver of any verbal communications so as to permit the physician to testify on that subject. We do not have this question here because the patient has voluntarily testified as to verbal communications and the petitioner has done likewise.

In Metropolitan Life Ins. Co. v. McKim, 54 Oh Ap 66, 6 N. E. 2d 9, syllabus three provides as follows:

“3. Where the insured voluntarily testifies as to physicians having examined him, it is error to refuse testimony of such physicians offered by the insurer, as examination of the insured’s body is a communication to his physician, and the insured in testifying waived his privilege of the communication secured to him by §11494 GC (§2317.02 R. C.).”

In Cuthbertson v. Cincinnati Union Terminal, 103 Oh Ap 385, 145 N. E. 2d 467, it was held, as provided by syllabus three, as follows:

“3. Under the provisions of §2317.02 R. C., where a plaintiff seeking damages for personal injuries testifies fully as to his physical condition and mentions a physician who treated him and the treatment administered, there is a waiver with respect thereto, and such physician may testify.”

It is our conclusion, upon a review of the decisions in Ohio, some but not all of which have been cited and quoted, that the rule should be, and this court so holds, that when a patient testifies voluntarily for the purpose of perpetuating testimony by way of deposition as has been related herein, but does not testify as to the physician’s findings upon examination and his diagnosis of her condition, whether or not such finding and diagnosis are within her knowledge, that the physician can be required to answer inquiries relating thereto because the patient waived the privilege attaching thereto by testifying generally to her condition and treatment. While this question has not been exactly presented before, we believe this holding is consonant with and within the intendment of the cases reviewed. This, therefore, would require Dr. Roberto, in the instant case, to answer questions concerning his findings upon examination of the plaintiff and his diagnosis of the condition of the patient.

Coming now to consider the written report made by Dr. Zimmerman to Dr. Roberto, we conclude that the contents of the report in his hands are in the nature of mere- hearsay -and that, therefore, such evidence in his hands is incompetent: and there is no obligation upon him to disclose the contents thereof. It is well settled that the hearsay rule, though frequently applied to oral statements, is not confined thereto but extends as well to written statements. See 21 O. Jur. (2d) 311, Sec. 296. See also, Hurd and Long, Ohio Trial Evidence, page 252, Sec. 13.2, the case of Cleveland, C., C., etc. R. Co. v. Ullom, 20 C. C. 512, 11 C. D. 321 (affirmed without opinion 64 Oh St 582, 61 N. E. 1148). Dr. Roberto cannot testify as to examinations and findings made by Dr. Zimmerman, either oral or written nor could he be cross-examined with respect to such findings.

We conclude, therefore, that the writ of habeas corpus should be denied as to all questions concerning examination, diagnosis, and treatment, out should be allowed insofar as it might extend to the petitioner’s refusal to furnish the defendant with a copy of the written report of the heart specialist.

A journal entry may be drawn, in accordance with this opinion. Exceptions allowed.

SKEEL, PJ, KOVACHY, J, concur.


author: By PETREE, PJ.

text:
    BLANKNER, Plaintiff-Appellant, v. LATHROP et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5906.
    Decided June 3, 1958.
    Knepper, White, Richards, Miller & Roberts, Kline L. Roberts, Milton S. Bartholomew, of Counsel, Columbus, for plaintiff-appellant.
    Donald S. McNamara, Columbus, for Julia Lathrop.
    Eagleson & Eagleson, Columbus, for defendants-appellees.
   OPINION

By PETREE, PJ.

This is a law appeal from the judgment of the Court of Common Pleas, which directed a verdict which sustained the validity of a will.

There are two assignments of error, which are as follows:

1. The trial court erred in ruling that the two witnesses to the purported .will were competent witnesses.

2. The trial court erred in directing the jury to find that the paper writing purporting to be the last will and testament of Nette B. Rogers was the last will and testament of Nettie B. Rogers.

Nette B. Rogers, widow of Charles Rogers, entered the hospital and was operated upon in the latter part of January, 1955. She executed the will on February 19, 1955. She lived until November 5, 1955, and her will was offered for probate on November 15, 1955.

The execution of the will took place in Mt. Carmel Hospital in the presence of her attorneys, John H. Eagleson (who was named executor in the will) and Stuart D. Eagleson (who was named as contingent executor). The Eaglesons, father and son, were law partners and attorneys for the testatrix at the time the will was executed. Before the lawyers arrived, Mrs. Rogers had told her nurse, Mrs. Clouse, that she would like to talk to them alone.

After considering the record, the briefs, and the arguments of counsel, we agree with the holding of the Court of Common Pleas that there was nothing to submit to a jury in this case and that it was the plain duty of the trial judge to direct a verdict.

While a serious question is raised relative to the competency of persons named in the will as executors of the will to act as witnesses, here again it was a legal question. Admittedly, Mr. John H. Eagleson was named executor, and he was one of the two witnesses to its execution. If he was not a competent witness, the will is not a valid instrument to pass title to property of the deceased. We do not believe this is a situation whfere the executor named in the will could refuse to accept the appointment by the Probate Court and thereby render the will valid.

The historic objection to the competency of a person named executor is no longer applicable. The executor is no longer a beneficiary, as in early days, with the right to do as he pleased with the personal estate which was not distributed to the widow and children or to keep all the property not specifically bequeathed to others. He now receives a commission fixed by the Probate Court pursuant to statute and limited by statute except for extraordinary services or expenses. Page on Wills, Lifetime Edition, at Section 325, cited by defendants, appellees herein, contains an excellent discussion of the question.

A majority of the jurisdictions outside of Ohio hold to the position that an executor who is not also a legatee or devisee is competent to be one of the necessary witnesses. Woerner, in American Law of Administration, Third Edition (1923), lists Alabama, Delaware, and formerly North Carolina as adverse to this holding of competency and nineteen states which hold such executor competent as a witness.

We recognize that this question is one of first impression in Ohio, but we believe the better reasoning is on the side of competency of the executor named in the will to act as a witness. The following note appears at Section 269, Deibel’s Ohio Probate Law, Fifth Edition:

“The person named as executor may be a witness.”

In view of the modern laws of descent and distribution and those governing executors in Ohio, we hold that the action of the trial court in directing a verdict upholding the validity of the will was correct; and, therefore, the judgment of the said trial court will be sustained. We find both assignments of error not well taken.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


author: By MARSHALL. J.

text:
    RAY, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 198,195.
    Decided October 10 1957.
    John B. Freiden, Cincinnati, for appellant.
    William Saxbe, Atty. Genl., S. Noel Melvin, Asst. Atty. Genl., for appellee.
   OPINION

By MARSHALL. J.

This is an appeal from a decision and order of the Board, suspending appellant’s Class D-5 permit for a period of fourteen days, based upon a charge against the permit holder as follows:

“On Sunday, February 10, 1957, at or about 10:45 o’clock A. M. Eastern Standard Time, you and/or your agent or employee did sell in and upon the permit premises intoxicating liquor, to-wit: wine — in violation of the provisions of the Liquor Control Act and regulations of the Board of Liquor Control.”

The evidence in the Record is uncontroverted. One, Willie Rose entered the permit premises on Sunday, February 10, 1957, where he purchased a pint of California wine. The Record shows that officers of the Cincinnati Police Department arranged a meeting with a paid informer by the name of Rose. Rose was given a marked dollar bill and was then told to go to appellant’s premises with instructions to buy wine. On his first request Rose was refused, but Rose then gave the bartender a story that he was ill and had to have the wine. Upon such plea, the bartender sold the pint of wine to said Rose. Thereafter the officers went into the premises and confiscated the marked dollar bill.

Appellant has raised one defense and that is, the defense of entrapment. Appellant relies upon the definition of entrapment as being a case where the criminal intent originates in the mind of the entrapper and the accused is lured into the commission of the offense in order to prosecute him therefor. The appellant claims that the evidence discloses ar active inducement on the part of the stooge for the police and that but for such inducement, the Sunday sale would not have been made.

The defense of entrapment was considered by the Court of Appeals of this county in the case of State v. Gutilla, 94 Oh Ap 469, decided October 17, 1953. Syllabus 1 of that case reads as follows:

“1. A person is not entrapped into the commission of the offense of practicing medicine without a certificate by the fact that a police officer, for the purpose of obtaining evidence against such person, represents that he is ill and thereby receives the treatment which constitutes the violation.”

In affirming the judgment of the Common Pleas Court of this county, the Court of Appeals found that the record showed that there had not been any entrapment established.

The Court recognized in that case a controlling principle as taken from Ohio Jurisprudence and annotations from A. L. R., as follows:

“Where the doing of a particular act is a crime, regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused, and the criminal offense is completed, the fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense.”

In the case of Langdon v. Board, Case No. 188434 in this court, and decided by Judge Harter on February 2, 1954, the following appears as his decision in the syllabus:

“Where a person is lured into the commission of a crime by one whose sole purpose is to obtain evidence on which to base a prosecution of the one so lured and who had otherwise no intention of committing the offense, the idea of which has wholly originated in the mind, of the inducer, the defense of entrapment is available to the accused.”

The appellant substantially holds the theory stated in that case as the basis for his defense of entrapment in this case.

The above mentioned case, No. 188,434 in this court, was appealed to the Court of Appeals of Franklin County and decided by that Court September 24, 1954. The two syllabi of the Court of Appeals case are as follows:

“1. Where, under a charge preferred against a liquor permittee by the Director of Liquor Control that the permittee’s bartender sold on the premises whiskey by the bottle, for consumption off the premises in violation of law, the evidence shows that the purchaser of the liquor, acting for an investigator of the department, and the bartender had been acquainted for a number of years, that the purchaser stated to the bartender that he was going fishing, with the implication that he wanted to take the liquor with him, and that the bartender would not get caught in the improper sale, such facts do not constitute entrapment, and the Director of Liquor Control is justified in finding that such evidence is insufficient to overcome the bartender’s volition or to exonerate him of his purpose to violate the law when he completed the sale.
“2. Entrapment, if established, may be employed as a defense to a charge preferred against a permittee by the Director of Liquor Control.” 98 Oh Ap 535.

In the opinion of Judge Hornbeck, on page 537, the following appears:

“Certainly the friendship, the fact that the purchaser wanted to take the liquor with him on a fishing trip, and his statement that he would not report the violation, were not sufficient to justify a known violation of the law by the bartender or to overcome any improper purpose or intent that he must have had when he made the sale. The sale was completed and the purchase price paid, which netted a substantial profit to. permittee.”

The Court of Appeals, by unanimous decision, reversed the Common Pleas Court in this case. We believe that the Court of Appeals of this county has laid down principles of law that are controlling on this court to the effect that the defense of entrapment is not shown by the facts as shown in the record of this case.

The order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and is in accordance with law. Said order is, therefore, affirmed.


text:
    RAY, d. b. a. 413 BAR, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5839.
    Decided March 4, 1958.
    Freiden, Wolf & Hoy, John B. Frieden, of Counsel, Cincinnati, for appellant.
    William Saxbe, Atty. Genl., Chester Hummell, Paul W. Dixon, Asst. Attys. Genl., Columbus, for appellees.
   OPINION

By PETREE, PJ.

This is a law appeal from the judgment of the Common Pleas Court in which it sustained the action of the Board of Liquor Control in suspending permittee’s license for a period of fourteen days for violation of the provisions of the Liquor Control Act. The Common Pleas Court found “that the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and is in accordance with law.”

It appears from the well-reasoned opinion of Judge Marshall that the defense of entrapment is not shown by the facts as shown in the record of the instant case. In his opinion the judge of the Common Pleas Court referred to a decision by the Court of Appeals of Franklin County reported in 98 Oh Ap 535, and quoted the syllabus, which is as follows:

“1. Where, under a charge preferred against a liquor permittee by the Director of Liquor Control that the permittee’s bartender sold on the premises whiskey by the bottle, for consumption off the premises in violation of law, the evidence shows that the purchaser of the liquor, acting for an investigator of the department, and the bartender had been acquainted for a number of years, that the purchaser stated to the bartender that he was going fishing, with the implication that he wanted to take the liquor with him, and that the bartender would not get caught in the improper sale, such facts do not constitute entrapment, and the Director of Liquor Control is justified in finding that such evidence is insufficient to overcome the bartender’s volition or to exonerate him of his purpose to violate the law when he completed the sale.
“2. Entrapment, if established, may be employed as a defense to a charge preferred against a permittee by the Director of Liquor Control.”

The court was correct in following that decision where the fact situation justifies the same.

The lone assignment of error in this case is as follows:

The Court erred when it found that the order of the Board of Liquor Control was supported by reliable, probative and substantial evidence and in accordance with law and in that the defense of entrapment is not applicable to a fact situation as in the instant case.

While we feel that entrapment, if established, may be employed as a defense to a charge preferred against a permittee by the Director of Liquor Control, it is our opinion that the fact situation in the instant case warranted the finding of the Common Pleas Court that no entrapment was established. The record, beginning at the bottom of Page 8, at the last question, reads as follows:

“Q. How did you happen to go to this place, the 413 Bar, on that Sunday?
“A. Well, Willie Rose himself. We previously had a complaint on the place.
“MR. FREIDEN: Objection to anything Willie Rose said.
“MR. SCHUESSLER: Overruled,
“Q. You may continue.
“A. I said we previously had a complaint on the place, and Willie said he thought he could buy a bottle of wine in there too.
“MR. FREIDEN: If it please the Board, this portion of the answer what Willie Rose said, should be stricken.
“MR. SCHÜESSLER: That should be stricken.
“MR. VIDEAN: Exception and proffer.”

While the Board struck out a portion of the last answer which referred to what Willie had said, the portion of the answer not stricken reads as follows:

“A. I said we previously had a complaint on the place, * *

In a case where there is reason to believe that there are violations of the Liquor Control Act on the premises of a permittee and the enforcement officer furnishes the opportunity to get evidence of such violation, It cannot be considered entrapment. Officers may act to detect crime but not to induce its commission. State v. Miller, 85 Oh Ap 376 at 378.

The instant case is also supported by State v. Gutilla, 94 Oh Ap 469, 116 N. E. 2d 208, where the fact situation is similar.

We hold that the record in this case sustains the judgment of the Common Pleas Court in its finding that the action of the Board of Liquor Control was supported by reliable, probative and substantial evidence and is in accordance with law.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


text:
    TIPTON, Admx., Plaintiff-Appellant, v. DAY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5813.
    Decided May 20, 1958.

      Lewis F. Byers, Mac Lee Henney, Columbus, for plaintiff-appellant.
    Isadore L. Margulis, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a wrongful death action brought by Margaret L. Tipton, plaintiíT-appeliant, as the personal representative of Norma Herren, deceased, who met her death by drowning in Buckeye Lake on May 31, 1953. The action is against Don Day, the defendant-appellee, who was the owner of the boat and liable under the provisions of §§12080-12091 GC (§4585.03 R. C.).

Our record reveals that five specifications of negligence were set forth in the petition, but the evidence offered on behalf of the plaintiff tended to support only two: (1) Operating the boat with six persons aboard despite its limited capacity of four; and (4) Not providing adequate life preservers or safety devices for the passengers. Since there was no evidence supporting specifications 2, 3 and 5, these were properly dismissed by the trial court. We find that there was substantial evidence in the record which supported specifications 1 and 4 and which would have warranted a submission of the case to the jury, if it were not for the fact that the evidence raised the issue of contributory negligence or assumed risk. These defenses were not pleaded, but it is not necessary when the issue is raised by the evidence. Centrello v. Basky, 164 Oh St 41.

Now the record supports the finding that plaintiff’s decedent was a passenger in a fourteen foot rowboat, powered by an outboard motor and which, according to the rules promulgated by the Division of Parks for the State of Ohio, had a capacity of four persons; that about 2:00 A. M. on the morning of May 31, 1953, the said boat, loaded with six persons was crossing Buckeye Lake when a motorboat approached from its right and passed some distance in front of it. The lake was choppy and the waves produced by the motorboat were of such proportions that they went over the bow of the boat causing it to become filled with water and throwing its occupants in the lake. It also appeared that the boat had not more than two buoyant cushions which were not sufficient to sustain all persons on board. This was in violation of §479-2 GC (§1541.13[D] R. C.). It also appeared that the defendant had purchased the boat and secured a license for the same the latter part of March, 1953: that the decedent and her children spent the week ends with the defendant at his cottage on the lake from that date until the time of the accident; that she fished with the defendant in said boat and on several occasions occupied the same with five other passengers. In other words, the decedent appeared to be as well informed as the defendant as to the size of the boat, its equipment and the manner in which it acted when in operation.

At the close of all of the evidence counsel moved for a directed verdict based upon the grounds of contributory negligence or assumption of risk. The motion was sustained and this is now claimed to constitute prejudicial error. In considering this assignment of error we are required to consider the evidence in its most favorable light towards the plaintiff and in so doing we conclude that the action of the trial court should be sustained.

The facts in this case are in certain respects quite similar to those found in Masters v. N. Y. C. Rd. Co., 147 Oh St 293, Par. 4 of the syllabus which states:

“A person, who brings about a condition or situation obviously dangerous to himself by voluntarily exposing himself to a hazard created by another, assumes the risk of injury so created and thereby relieves such other of legal responsibility for an injury resulting from such exposures ”

And continuing at page 300 Judge Hart says:

“The requisite of proximate or legal cause to sustain a recovery in a personal injury action is a limitation which the courts place upon a defendant’s responsibility for the consequences of his conduct. In such cases, actual causation is always essential to liability, but it does not wholly determine it. Legal responsibility is limited to those causes so closely connected with the injurious result as to justify the imposition of liability. Thus, an efficient cause of a plaintiff’s injury intervening after defendant’s negligent act has been committed, contributory negligence or the assumption of the risk of injury by a plaintiff, which intervening cause, contributory negligence or assumption of risk brings about a plaintiff’s injury, may insulate the negligence of the defendant and preclude a recovery.

“ ‘Where one party has been negligent, and the second party, knowing of such antecedent negligence, fails to use ordinary care to prevent an injury which the antecedent negligence rendered possible, and the injury follows by reason of such failure, the negligence of the second party is the sole proximate cause of such injury.’ Bostwick v. Minneapolis & Pacific Ry. Co., 2 N. D., 440, 51 N. W., 781; Cincinnati, H. & D. Rd. Co. v. Kassen, 49 Oh St 230, 31 N. E., 282, 16 L. R. A., 674.

“Likewise, where the proximate cause of an injury is referable to the conduct of the injured party after knowledge of the risk of injury and not to that of a defendant who in the first instance creates the risk, ■such risk of injury is assumed by the injured party.”

Now. in our case the decedent knew that the lake was choppy, for she had,crossed it only a short time previously. She knew or should have known from her past experience with the boat that it did not have adequate lifesaving devices. She also knew, from the previous crossing, the amount of water the boat drew when loaded with the same six persons. It also appears that she had been invited to return to her destination by automobile, but this she declined. It was under these conditions that she elected to assume the risk of a crossing which she knew or in the exercise of ordinary care should have known to be dangerous.

We are of the opinion that the trial court did not err in sustaining the motion and instructing the jury to return its verdict in favor of the defendant.

Several other errors have been assigned which relate to the improper admission and rejection of evidence and which have not been covered in the appellant’s brief; hence, they have not been considered. Even if they had been well taken, under the present state of the record they could not have been prejudicial.

The judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.