text:
    MEYER et, Plaintiffs-Appellees, v. REED, Defendant-Appellant.
    Ohio Appeals, Seventh District, Portage County.
    No. 182.
    Decided March 23, 1950.
    Loomis, Caris & Jones, Ravenna, for plaintiffs-appellees.
    Slabaugh, Guinther & Pfiueger, Akron, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiffs-appellees will be called plaintiffs, and defendant-appellant will be called defendant.

Glenn H. Reed, deceased, owned and developed University Heights Allotment, situated in Kent, Portage County, Ohio. Before selling any lots situated in such allotment to others he deeded the entire allotment to Florence DeCapito, subject to all restrictions contained therein. The deed evidencing that conveyance was duly recorded in the records of deeds of Portage county. Subsequently Florence DeCapito re-conveyed all such lots to Glenn Reed “subject to all the covenants, restrictions and agreements set forth in a deed from Glenn H. Reed to Florence DeCapito, and recorded in instrument 27270, Portage County Records; and which covenants, restrictions and agreements are made a part hereof by reference, as though the same were fully set forth.”

All subsequent deeds to lots in University Heights Allotment provided inter alia that “invalidation of any one of these covenants by judgment or court order shall in no wise affect any of the other provisions which shall remain in full force and effect”; and contained the following reservation and restriction:—

“A right and easement is herewith reserved perpetually over the rear ten (10) feet of each lot or block and over (10) feet of each side of each lot and block for storm and sanitary sewer, water lines and utility installation and maintenance, it being understood that such ten (10) foot reservation is made as to three sides of each lot and block in said Allotment either as now constituted or as subsequently resubdivided.”
“No building or any part thereof shall be erected on any residential or business building plot nearer to the front, side or rear lot lines than as shown on the recorded plat of said Allotment, except that where no such building line is shown on said plat then no building or any part thereof shall be erected nearer to the front lot line than 40 feet, nearer to a side lot line, as platted or owned, than ten (10) feet or nearer to a rear lot line than ten (10) feet.”

All lots in such allotment, including lots 3 and 4 in Block D, were restricted and set aside as “residential lots,” except those specifically excepted in paragraph (b) which provides:— “Subject to the zoning ordinances of the City of Kent, Blocks A and B are restricted to commercial use and for retail merchandising, and/or apartment houses and the following lots hereinafter described may be used for single-family dwelling, two-family dwelling, four-family dwelling or apartment house:—

Lots 1-2-3-4 in Block D.

Lots 1-2-3-4-5 in Block E.

Lots 1-2-3-4 in Block F.

Lots 1-2 in Block G.”

Defendant, the widow and heir of Glenn H. Reed, and the owner of many unsold lots in University Heights, sold adjoining lots 3 and 4, situated in residential Block D of such allotment, to plaintiffs, through a broker, for construction of an “apartment house.”

That sale was made subject to all “restrictions and reservations of such allotment,” among which are that they “may be used for a single-family dwelling, two family dwelling, four family dwelling or apartment house”; and “that no building, or any part thereof, shall be erected” on such lots until “the design and location thereof have been approved in writing by Glenn H. Reed, his heirs, and assigns, or by a committee appointed by Glenn H. Reed, his heirs and assigns,” except that in event of failure to so approve or disprove such design and location within sixty days after submission by the builder then such approval shall not be required.

Plaintiffs prepared and submitted to defendant for her approval in writing plans for a building to house eleven families, which they proposed to construct in the middle of their lots, and nearer than ten feet to the side boundary lines of such lots. Twice defendant refused to approve such plans as submitted to her, which refusal we construe as a disapproval of such plans.

Plaintiffs commenced an action in the court of common pleas in which they sought a mandatory injunction compelling defendant to approve in writing their submitted plans.

By cross-petition defendant sought the construction of certain restrictions of plaintiffs’ deed and a judgment declaring the restrictions valid.

The trial judge denied the prayer of plaintiffs’ petition for mandatory injunction compelling defendant to approve plaintiffs’ plans in writing; held that no written approval of such plans was necessary; and in construing some of the restrictions contained in plaintiffs’ deed held that such restrictions would not forbid the construction of the building contemplated by plaintiffs, and entered judgment accordingly.

■ Defendant appealed to this court on questions of law and fact, and in the trial court moved for an order fixing bond on such appeal. The bond, which the trial judge fixed at $20,000,00, was not furnished.

Plaintiffs’ motion to dismiss defendant’s appeal on the ground that no bond had been furnished was sustained from the bench. The words “and fact” were stricken from defendant’s notice of appeal, and the appeal was retained as one on questions of law.

Plaintiffs’ motion to dismiss defendant’s appeal on questions of law on the ground that defendant had not filed a bill of exceptions nor assignments of error timely was overruled. It appearing that a bill of exceptions was filed the appeal was argued, submitted, and will be determined as an appeal on questions of law.

By her sole assignment of error defendant contends that the judgment of the trial court is contrary to law, and urges that the “extra-ordinary remedy of mandatory injunction,” is not “available to a lot owner to compel an allotment proprietor to approve plans in writing”; and that the lot owner has an adequate remedy at law “to determine whether the structure which he plans to erect can be completed by him”; and that plaintiffs, who accepted “a conveyance of'their lots subject to a reservation of an easement,” can not “require the owner of the easement to approve, in writing, plans for a structure which, if erected on the lot, will destroy the easement”; and may not “construct such building without approval.” The questions raised by such assignments of error are the only ones which will be disposed of in this opinion.

While variations of the language used in the deed from Florence Decapito to Glenn H. Reed, quoted supra, were used in subsequent deeds, generally, and with the exception of three deeds out of a total of sixty-nine deeds to lots in the allotment, such deeds were delivered “subject to all the re-, strictions and reservations of such allotment,” and “in conformity with a general plan,” which imposed burdens upon plaintiffs which they must carry.

Some owners have acquired parts of lots adjacent to lots owned by them in such allotment. With the exception of a two family dwelling, or apartment, situated above a funeral home, in Block A of such allotment, only single family dwellings have been constructed in such allotment. One owner has constructed his house closer than ten feet to one of the boundary lines thereof,' and four owners have constructed htiuses across lot lines where they owned adjoining lots. There is no evidence whether these buildings were erected with, or without, the approval in writing of defendant, nor by and with the consent of other owners of lots in University Heights Allotment.

The action we review is not one seeking to enjoin plaintiffs from proceeding with the construction of their building, but an action in which plaintiffs sought the extraordinary remedy of mandatory injunction to require defendant to approve, in writing, the design and location of their building prior to commencement of construction thereof. We conclude that a mandatory injunction was not available to them, as they had an adequate remedy at law to determine whether the building they proposed to erect could be built upon their lots and comply with the restrictions thereof.

Plaintiffs contend that defendant is “estopped to assert the validity of the restrictions” as to lot lines in her allotment because she violated, or permitted other owners of lots in University Heights Allotment to violate, the restrictions of the deeds to lots situated therein with reference to boundary lines thereof. In the absence of evidence of the conditions surrounding the erection of the buildings being discussed, and the alleged violation of the restrictions of the lots on which they were erected, we can not concur in this contention; and do not believe the language of the restrictions is ambiguous.

We have studied ’and carefully considered the ingenious arguments of counsel for the respective parties concerning the easement to which reference has been made, and conclude that such easement still exists; that the erection of the contemplated structure encroaches upon .the easement, and violates such easement and the restrictions of the allotment; that no approval for the erection thereof was given in writing at any time, as required by the restrictions of the allotment; and that under these conditions the contemplated eleven family house can not be erected.

It is apparent from what we have said we conclude that the trial judge did not err to plaintiffs’ prejudice in declaring that' all of the restrictions set out in the various lettered paragraphs of the master deed were applicable to plaintiffs’ lots; nor in denying the prayer of plaintiffs’ petition for mandatory injunction compelling defendant to approve in writing plaintiffs’ plans.

However, we conclude the trial judge did err to defendant’s prejudice in the following respects, towit in holding that the line restrictions appearing in plaintiffs’ deed did not apply to them since they owned two adjoining lots; that the approval provision of plaintiffs’ deed was not applicable to them, and no written approval of such plans was necessary; that they did not need defendant’s approval to construct their contemplated apartment; that such restrictions did not forbid its construction; and that their lots were not subject to the easement to which reference has been made.

The judgment of the trial court is affirmed in part and reversed in part as indicated herein.

NICHOLS, I, concurs.

GRIFFITH,. J, concurs in judgment.


source: Caselaw Access Project

author: By SKEEL, PJ. By HURD, J.

license: Public Domain

text:
    McNEES, Plaintiff-Appellant, v. CINCINNATI STREET RAILWAY COMPANY, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7290.
    Decided April 19, 1951.

      Hoover, Beall, Whitman & Eichel, Cincinnati, for plaintiff- ' appellant.
    C. R. Beirne, Cincinnati, for defendant-appellee.
    (SKEEL, PJ, HURD, J, of the Eighth District: STEVENS, J, of the Ninth District, sitting by designation.)
   OPINION

By SKEEL, PJ.

This appeal on questions of law comes to this court from a judgment entered for the defendant in the Common Pleas Court of Hamilton County.

The plaintiff’s cause of action is founded upon the provisions of the Workmen’s Compensation Act. The plaintiff as the widow of Taylor McNees, filed a claim for benefits under the Act on the ground that her husband came to his death because of injuries suffered in the course of his employment with the defendant. The claim was disallowd when presented to the Industrial Commission of Ohio and upon rehearing, as provided by law, was again disallowed, the Industrial Commission ruling as follows:

■ “That the claim be disallowed for the reason that proof of record fails to show the decedent died as a result of injuries sustained in the course of and arising out of his employment.”

This order was appealed to the Common Pleas Court of Hamilton County where, upon trial to a jury, a verdict was returned for the defendant. In addition to the general verdict, the jury answered a special interrogatory which was:

“Was the cause of Taylor McNees’ death, the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of January 17, 1944?”
“Answer: Yes.”

The plaintiff then filed a motion for judgment n. o. v., which motion was granted.

The court, in granting such motion and entering judgment for the plaintiff, giving her the right to participate in the fund notwithstanding the jury’s verdict for the defendant, concluded that that part of its general charge to the jury which stated:

“Now, mere mental strain or worry is not an injury within the meaning of the Workmen’s Compensation Law.” was in error and that the jury’s answer to the interrogatory, together with the admitted facts and unchallenged evidence, established that Taylor McNees’ death resulted from a com- , pensable injury under, the Workmen’s Compensation Act. This judgment was affirmed by the Court of Appeals but upon appeal to the Supreme Court the judgment was reversed and the cause was remanded with instructions to enter judgment for the defendant upon the verdict of the jury, the court holding that: (152 Oh St 269)
“1. The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict, where such answers can be reconciled with the general verdict. (Davis v. Turner, 69 Oh St 101, and Ohio Fuel Gas Co. v. Ringler, 126 Oh St 409, approved and followed.)
“3. Where, on appeal from disallowance of a claim for death benefits under the Workmen’s Compensation Act, a jury answers, ‘yes’ to a special interrogatory reading: ‘Was the cause of Taylor McNees’ death the mental strain and excitement of the driving conditions which prevailed as he drove the trolley bus on the night of Jan. 17, 1944’ (the night of his death) such answer does not determine that there was a proximate causal relationship between McNees’ employment and either his death or any compensable injury.
“4. Death benefits under the Workmen’s Compensation Act can be awarded only where the death was the proximate result of a compensable injury.
“5. An injury is not compensable under the Workmen’s Compensation Act unless it is received in the course of and arises out of the employment.
“6. An injury does not arise out of the employment within the meaning of the Workmen’s Compensation Act, unless there is a proximate causal relationship between the employment and the injury.”

The case was returned to the Common Pleas Court where judgment was entered for the defendant on the verdict of the jury. The plaintiff filed a motion for new trial, which was overruled. The judgment thus entered is the basis for this appeal.

The evidence of what took place just prior to the death of Taylor McNees is not in dispute. He was employed as a driver of a trolley bus by the defendant and was on duty the night of January 17, 1944. The night was very foggy. As he drove ' his bus down town the fog was so dense that a passenger stood on the front step of the bus to direct the decedent in avoiding the curb or striking parked cars. The defendant seemed excited before he started on the trip which continued as he proceeded down town. About a mile from the end of the line from whence his trip began, the trolley poles were pulled off the wires because the bus was driven too far to the left. The decedent tried to get them back on, without success. The bus driver in the bus following, tried to give assistance when he came upon the scene. After it was found impossible to get the trolley poles back on the wires he suggested pushing the bus driven by decedent back under the trolley wires. As the second driver started to push the bus he moved the first bus only about four feet when the brakes seemed to set. He got out and found that the decedent had collapsed over the steering wheel. He was sick. He was removed to the hospital where he was pronounced dead, the deputy county coroner finding the cause of death as “coronary thrombosis.” The decedent had suffered from a heart condition for about a year prior to Jan. 17, 1944.

The plaintiff, to support her claim, called a doctor who testified that McNees’ death was due to “the tremendous strain that was placed upon this individual’s physical being and his mental being, both, but particularly on the strain of his physical effort * * *.”

Upon cross-examination this witness admitted that death may result from coronary thrombosis at a time when the decedent is not undertaking physical or mental strain of any kind.

The defendant’s expert medical witness testified that the anxiety and nervousness more than the physical'strain was the cause of death. He said:

“I can safely say that a majority of coronary conditions result not from physical exertion as much as from mental strain or some other condition which we don’t know * *. It may come on a person just walking- down the street or without any more physical exertion than they normally exert.”

As indicated above, the jury’s verdict was for the defendant and after the Supreme Court ordered the Court to enter judgment on the verdict, the trial court overruled plaintiff’s motion for a new trial.

The plaintiff presents two grounds for reversal:

“The first is that the trial court, both in its general charge and in a special charge given at the request of the defendant, committed error prejudicial to the plaintiff. The second is that the general verdict, in the light of the correct state of the law in the case, was manifestly against the weight of the evidence.”

It is clear from a reading of the whole charge and thspecial charge that the jury must have understood the court to mean that if the decedent came to his death while at work, as a proximate result of a coronary thrombosis, which at the time of death was either activated or brought into existence by mental strain or nervous excitement, that such death would not be the result of a compensable injury received in the course of his employment, even though such mental strain or nervous excitement was produced by unusual conditions under which the decedent was at the time compelled to work.

The question of whether or not the court in entering judgment n. o. v. upon the jury’s finding, that the death was caused by nervous excitement and mental strain, constituted error was presented to the Supreme Court by the defendant (152 Oh St 269) as disclosed by the defendant’s brief filed in that proceeding. Subdivision II on page 14 of such brief presents the question as follows:

“Death resulting from mental strain and excitement of conditions of employment is not compensable under the Workmen’s Compensation Act.”

In support of its claim the defendant cites the following cases: Industrial Commission of Ohio v. O’Malley 124 Oh St 401; Shea v. Youngstown Sheet & Tube Co. 139, Oh St 407; Nelson v. Industrial Commission 150 Oh St 1.

The O’Malley case, supra, is clearly not in point, as there the excitement was in no way connected with the decedent’s ' employment, although this point is not mentioned by the court. The excitement was occasioned because of the police asking to have a gate opened to investigate why a ’door was open in the building next to the building of decedent’s employer. The decedent stated after opening the door between the properties:

“That he was sick from the excitement of it all and that he had high blood pressure.”

The post mortem disclosed no evidence of injury, there was no paralysis before death. The court said at page 403:

“If O’Malley’s death was caused by excitement merely, it was not caused by any physical injury contributing to his death.”

In the Nelson case, supra, the decedent was not confronted with any unusual conditions at the time he died. The court said in the 1st and 3rd paragraphs of the syllabus:

“1. The sudden death of a workman while engaged in his usual occupation, which death resulted from a pre-existing physical condition, is not of itself evidence that an accidental injury within the contemplation of the Workmen’s Compensation Act caused or accelerated such death. * * *
“3. Where a workman suddenly dies at his work and his death results from cerebral hemorrhage and it appears that the workman had been suffering from cerebral thrombosis, such death is not compensable in the absence of evidence showing that an accidental injury caused or contributed to the death. Under such circumstances, in the trial of an action by the decedent’s dependent to participate in the state insurance fund, a trial court is obligated to instruct a verdict and enter a judgment against the plaintiff.”

The court in its opinion in the Nelson case, quotes from Goodman v. Industrial Commission, 135 Oh St 31, and Cordray v. Industrial Commission, 139 Oh St 173. On page 7 the court says:

“In the Goodman case, a 48 year old baker, while engaged in his usual occupation, shortly after he had commenced work, suffered an acute dilation of the heart from which he died on the same day. Since all the eye-witnesses testified that Goodman was at his bench, handling dough in the usual way, and under the usual conditions, when he collapsed, and that he was not engaged in any extraordinary effort at the time he did not suffer any compensable injury.”
“The court there said:
“ ‘Whatever the rule in other jurisdictions may be, the Supreme Court of Ohio, through a long line of decisions, has consistently defined the meanings of the term ‘injury,’ as used in the Constitution and statutes, to be physical or traumatic injuries accidental in their origin and cause; the result of a sudden happening at a particular time.’ ”
“In the Cordray case, the first two paragraphs of the syllabus are as follows:
“ T. In an action by the dependents of a workman against the Industrial Commission in which no evidence is offered by claimants tending to establish that the workman’s death was the result of a sudden happening at á particulár time causing a physical of traumatic injury accidental in origin and cause, it is error for the trial court to overrule a motion by the commission for a directed verdict in its favor.
“‘2. Where the plaintiff’s evidence discloses only, that a workman while engaged in performing the usual duties for which he was employed, in the usual and regular way without any extraordinary effort, suffered a cerebral hemorrhage, no compensable injury is shown. The occurrence of a cerebral hemorrhage is not of itself proof that it resulted from a compensable injury.’ ”

These cases not not deal with the question here presented. In the case now before us, there can be no doubt but that death resulted from a physical injury to the heart of the decedent and that at the time of his death, while he was engaged in his work of driving a bus, he was met with unusual conditions different from what were ordinarily encountered, thereby tending to bring on nervous excitement and mental strain which the jury said was a cause of his death.

The Supreme Court at page 274 of the McNees case, supra, says:

“Since the jury’s answer to the special interrogatory finds a causal connection between decedent’s death and the strain and excitement of certain conditions of his employment, it necessarily establishes a causal connection between his employment and the coronary thrombosis. This follows because there is no dispute in the evidence as to' the fact that coronary thrombosis was the proximate cause of death. When it refers to ‘the cause of Taylor McNees’ death’ the jury’s answer to the special interrogatory negatives the existence of other causes.”

This case (152 Oh St 269) as above indicated, was decided on the question of whether or not the mental strain and nervous excitement which the jury found to be the cause of death, was the proximate and not a remote cause of death, inasmuch as there was no controversy about the fact that the decedent came to his death of a coronary thrombosis and one of the doctors had testified that in many cases of that kind neither physical nor mental strain was found to be present. That part of the opinion of the Supreme Court last quoted, was concurred in by Judge Hart in his dissenting opinion. In other words, the court did not sustain the defendant’s claim that death, resulting from a coronary thrombosis brought on or aggravated by mental strain and nervous excitement because of unusual conditions under which the decedent was working at the time of his death, could not be a compensable injury.

On the question of mental strain, worry and anxiety, it is stated in 58 American Jurisprudence, Sec. 255, commencing at page 756 as follows:

“By the weight of authority, the sudden and unexpected breaking of some portion of the internal structure of the body, as in the case of cerebral hemorrhage, apoplexy, hernia, etc., or the failure of some essential function thereof, as in the case of heart failure, paralysis and similar afflictions, brought about by the exertions of the employee while engaged in the performance of his duties or by the conditions of the employment even without any external happening of an accidental nature, is to be regarded as an accidental injury within the meaning of the terms ‘injury by accidents’ ‘injury proximately caused by accident’ ‘personal injury accidentally sustained,’ and similar expressions, as used in compensation statutes, as well as a simple personal injury, although there are holdings to the contrary. And this is true, notwithstanding the workman may have been suffering from a pre-existing infirmity which constituted a predisposing cause of such disablement. It is said, in this connection that an internal injury which is sudden, unusual and unexpected is none the less accidental because its external cause is part of the victim’s ordinary work.”

The cases supporting the great weight of authority are set forth in the annotation supporting the above statement. The holdings to the contrary, referred to above, are not in conflict with the situation presented in this case. The cases cited by Zimmerman, J., in his dissenting opinion, 152 Oh St at page 286, are Hope v. Royal Indem. Co. 90 Fed. (2d) 387 and Von Ness v. Borough Haledon, 136 N. J. L. 623, 56 App. (2d) 888, are also directly in point.

- We must therefore conclude that the court was in error prejudicial to the rights of the plaintiff in the charge to the jury that “* * * mere mental strain or worry is not an injury within the meaning of the Workmen’s Compensation Law” under the circumstances of this case.

The Court is unable to agree that the plaintiff’s second claim of error that the judgment is manifestly against the weight of the evidence is sustained and therefore such claim of error is overruled.

For the foregoing reasons, that is, that the court committed error prejudicial to the plaintiff in its general charge to the jury and in its special charges, the judgment is reversed and the cause is remanded for further proceedings according to law. Exceptions noted.

HURD, J, concurs.

STEVENS, J, dissents.

(See Concurring Opinion by HURD, J.)

By HURD, J.

(Concurring.)

In my opinion the judgment should be reversed also on the ground that it is against the manifest weight of the evidence for the reasons herein stated.

The Supreme Court has held in the majority opinion by Taft, J. (McNees v. Cincinnati Street Railway Co., 152 Oh St 269) that in passing upon a motion for judgment non obstante veredicto “neither the trial court, the court of appeals, nor this court, may weight the evidence.” (Sec. 11601 GC) (See syllabus 2 at page 269). However, this court is not now precluded in this appeal from an order overruling a motion for a new trial, from passing upon the question of whether the verdict of the jury was contrary to the manifest weight of the evidence. It is clear from an analysis of the opinion of the Supreme Court that the'evidence was not weighed by that court, for at page 281 we find the following- statement:

“We have, therefore, a situation where the evidence received upon the trial is not such as to require a determination, as a. matter of law that decedent’s employment was the proximate cause of the coronary thrombosis, which admittedly caused decedent’s death. Assuming, without deciding, that there was sufficient evidence tending to prove that such employment was the proximate cause of the coronary thrombosis or death, so that there was a question for the jury on such proximate causation, the answer to the interrogatory does not determine that anything was a proximate cause.”

Coming now to a consideration of the evidence, the record shows that there were two medical witnesses, one called on behalf of the plaintiff and the other on behalf of the defendant. Plaintiff’s witness (Dr. Heinold), testified positively that there was a causal relationship between the events immediately preceding the death and the death. He testified in substance that the incidents of decedent’s employment contributed to his death because these incidents would cause a raising of blood pressure in an artery somewhat occluded and would cause a sudden clotting and closing up of the full artery preceding sudden death. While he also testified that a person might die of coronary thrombosis without strain, it should be observed most emphatically that all of the evidence in this case pointed unmistakably to an unusual strain in the operation of the bus in a dense fog. While the general public was exposed to the same fog, the decedent with a preexisting heart condition was in an entirely different position from the general public, being obliged to work under the most unusual conditions then existing which in any common sense view of the facts was the proximate cause of the coronary thrombosis and the resulting death.

The statement of Dr. Heinold, amply supports this conclusion when he testified that:

“the events previous to the man’s collapse contributed to the collapse and his eventual death because of the tremendous strain that was placed upon this individual’s physical being and his mental being both, but particularly on the strain of his physical effort.”

These events could not possibly be other than the activities, exegencies and conditions arising out of his employment.

Defendant’s medical witness (Dr. Ventress) when asked concerning the factors which caused' the death of McNees, outlined these factors as being — very bad driving conditions due to the fog; the aggravation by a passenger contradicting those attempting to help the decedent, and the responsibility for the safety of his passengers under the unusual conditions to which the bus driver was subjected at the time of his death. He also testified:

“I think that this anxiety and nervousness, more so than any physical exertion, would be the factor that caused the coronary to become aggravated enough to cause death.”

It should thus be noted that while Dr. Ventress emphasized anxiety and nervousness, he did not exclude the physical exertion caused by the necessity of decedent to stop his bus, get off and replace the trolley poles on the wires two or three times before he collapsed. While he minimized the effect of the physical exertion, he did not exclude it entirely nor did he testify at any time that there was not a proximate causal relationship between the employment and the death.

It is also well to note in t this connection that no charge was asked or given on the question of proximate causal relationship between the conditions, activities and exegencies of the employment and the death. Therefore, whether we consider this testimony and the record as a whole, it seems to me that the conclusion is inevitable that the verdict of the jury was so clearly contrary to the manifest weight' of the evidence as to require a reversal on that ground and a remanding of the case for a new trial according to law.


author: By WISEMAN, J: By THE COURT:

text:
    MASSIE, Plaintiff-Appellee, v. MASSIE et al, Defendants-Appellants.
    Ohio Appeals, Second District, Greene County.
    No. 518.
    Decided March 13, 1951.
    Robert H. Wead, Xenia, for plaintiff-appellee.
    Gus W. Byttner, Melvin L. Robins, Dayton, for defendant-appellant.
    Phillip Aultman, Xenia, for trustee in bankruptcy.
   OPINION

By WISEMAN, J:

This is an appeal upon questions of law from an order of distribution made by the Common Pleas Court of Greene County in an action for partition. .

An order of sale in partition was issued on April 6, 1950. which was returned by the Sheriff of Greene County on April 20, 1950. The sale was confirmed and a partial distribution of the proceeds ordered on April 22, 1950. In making partial distribution the court ordered the taxes, court costs, counsel fees and the mortgage lien to be paid, and the balance to be paid in equal shares to the plaintiff and the defendant. On the same date, in a separate entry, the court ordered the Sheriff to hold in his possession the distributive share of plaintiff and defendant until further order of thq court. In a later entry the court distributed the share due the plaintiff.

On motion of a judgment creditor to determine the priority of liens respecting the share of the proceeds due the de- • fendant, Charles W. Massie, a hearing was had at which time it developed that on April 13, 1950 Lilly Smith filed a suit against the defendant, Charles W. Massie, et al., in the Common Pleas Court of Greene County on a note, praying that an order of attachment be issued against the funds of the defendant in the possession of the Sheriff óf Greene County. Residential service was had on the defendant, Massie, on April 14, 1950 and an undertaking for attachment was filed by Lilly Smith with the Clerk of Courts on April 22, 1950. On May 15, 1950, the defendant, Massie,'not having interposed a defense to the action, a judgment for attachment was rendered and on, the same day an order of attachment was issued by the Clerk of Courts of Greene County to the Sheriff of Greene County. Judgment was taken on the note on July 17, 1950.

The record further shows that prior to taking judgment on attachment on May 15, 1950, and prior to the issuance of an order of attachment by the Clerk of Courts, the defendant, Massie, on May 14, 1950, assigned to Gus W. Byttner all his right, title, claim or interest to the moneys in the possession of the Sheriff which represented his share of the proceeds derived from the sale of the property in the partition action. The written assignment was filed with the Sheriff on May 13, 1950, two days before the order of attachment was issued to the Sheriff. >

•At the hearing the Court raised the question as to the consideration for. the assignment. Counsel for Byttner stated that the assignment was for a valuable consideration but that he was not acquainted with the dealings between Massie and Byttner. No evidence was introduced with respect to consideration. No further question was raised by the court and no question at any time was raised by opposing counsel with respect to the consideration for the assignment. The assignment itself recites that it was “for value received.”

It appears that counsel and the court at the hearing accepted the validity of the assignment and proceeded to determine the right of priority between the parties on the basis of the validity of the attachment proceeding.

The trial court determined the order of priority and made an order of distribution on August 18, 1950 in which three prior judgment lienholders were ordered paid and further ordered $772.11 to be paid to Lilly Smith in satisfaction of her judgment and the balance in the sum of $695.27 to be paid to Gus W. Byttner on his assignment.

The appellant, Charles W. Massie, contends that the order of the trial court giving priority to the claim of Lilly Smith over the claim of Gus W. Byttner was contrary to the evidence and contrary to law.

From the bill of exceptions it appears that the trial court had proceeded on the assumption that proper service had been made on the Sheriff of the order of attachment prior to the assignment, or that the mere filing of the suit by Lilly Smith was sufficient to deprive the defendant, Charles W. Massie, of the right to make a valid assignment of his interest in the fund.

No attempt was made to comply with §3835 GC, which provides that when the Sheriff is a party, or is interested, process shall be directed to the Coroner. In any event, the assignment antedated the order of attachment. The mere filing of the action did not deprive the defendant, Charles W. Massie, of his right to assign his interest in the fund. On May 4, 1950, he held an interest in the fund in the possession of the Sheriff, which was assignable. Comer v. Dodson, 22 Oh St 615; Shafer v. Buckeye State Building & Loan Co., 37 Abs 62, 45 N. E. (2d) 421; Shively v. Shively, 87 Oh Ap 718, 95 N. E. (2d) 276. The assignee on that date became the owner of the fund to the extent of the interest of the assignor. The interest of the assignor, and consequently the assignee, was subject to the claims of judgment lienholders which the evidence shows became vested prior to the assignment. Any attempt on the part of Lilly Smith to perfect her lien subsequent to the assignment would not affect tbe right of the assignee. Priority in time establishes priority in right.

The appellee, Lilly Smith, contends that no consideration was shown for the assignment. While it is true that no evidence was presented by either party at the hearing with respect to consideration, except the statement of counsel for the assignee that the assignment was given for valuable consideration; no question was raised by the parties in interest at the hearing respecting the consideration supporting the assignment. The assignment itself imports a valuable consideration. In the absence of evidence to the contrary the trial court had a right to conclude that the assignment was given for a valuable consideration. In Vol. 4 Am. Jur. page 331, Section 128, it is stated that the assignee “may be assisted by certain presumptions, for example, an assignment in writing may be presumed to be supported by such consideration.” In Vol. 6 C. J. S. page 1200, Section 140, sub paragraph 3, it is stated that in some jurisdictions an assignment in writing is presumed to be upon a sufficient consideration. It is stated in the text that “where an assignment is absolute it will, until the contrary is shown, be presumed to be upon a sufficient consideration.” The case of Driscoll v. Driscoll, 143 Cal. 528, 77 P. 471, is cited in support of this proposition, and also Walker v. Johnson, 108 Mont. 398, 91 P. 2d 406, 411. Also it is stated that “Where the assignment states that it is for a valuable consideration, there is a presumption to that effect created by the assignor’s admission.” The case of Roberts v. Friedman, 96 Pa. Super. 530 is cited for this proposition, and In re Sweitzer’s Estate, 49 Dauph. Co. 288. In Walker v. Johnson, the court in its opinion said:

“The validity of the mortgage and assignment was not attacked by any proof by the respondent, it was only assailed by respondent’s counsel in his motion for a directed verdict. It was then argued that the appellant failed to prove consideration for the mortgage and assignment. This court has held that a mortgage itself prima facie imports consideration. * * * As to the assignment of the mortgage, we must apply the rule that ‘where an assignment is absolute it will, until the contrary is shown, be presumed to be upon a sufficient consideration. (5 C. J. 1016; 6 C. J. S. Assignments, section 140, page 1200).”

In Roberts v. Friedman the court in its opinion held:

“The lower court’s conclusion was that ‘this assignment is not an enforceable contract because it lacks consideration. For this reason the rule for judgment must now be made absolute.’ The assignment of the chose states that it was for a ‘valuable consideration.’ Whether it was for forbearance in instituting an action or some other valuable consideration, we are not informed, and it is not important. It is difficult to get stronger evidence that there was a valuable consideration than that of an expressed acknowledgment over the assignor’s signature.
“A legal presumption was created by the assignor’s admission that there was a valuable consideration and as there was no proof to the contrary, the lower court was in error in making the rule absolute on the ground that the assignment was-without consideration.”

The note in Vol. 5, C. J. 1016, is as follows:

“Where an assignment is absolute it will, until the contrary is shown, be presumed to be upon a sufficient consideration. So, in an action by an assignee of a chose in action assigned to him by the surviving partner of a firm, the assignment will be presumed to have been made on a valid consideration in the course of winding up the partnership affairs.” (Cases cited in the footnote, including Driscoll v. Driscoll, supra.)

In the instant case the trial court recognizes the validity of the assignment in the order of distribution, by ordering the share of the fund paid to Gus W. Byttner on his assignment.

The doctrine of lis pendens has application to a partition proceeding. Comer v. Dodson, supra; Shafer v. Buckeye State Building & Loan Co., supra; Shively v. Shively, supra; Vol. 25 O. Jur., pages 655, 681, 685. But in the instant case it is not controlling with respect to the question for determination. The provisions of §11300 GC, have no application. It has no application to the suit on the note, and if ápplied to the suit in partition it merely means that during the pendency of the action third persons are charged with notice of its pendency or that no interest could be acquired by third persons in the subject of the action against the interest of parties thereto. In other words, the assignee took the assignment subject to the rights of the parties which had been fixed at the time of the assignment. Consequently the interest of the assignee was subject to the court’s decree respecting the right of priority of the several parties in interest, but we find the assignee to be prior in time and prior in right to the claim of Lilly Smith.

The appellant, Charles W. Massie, could proceed to prosecute the appeal even though he had made an assignment. Sec. 11261 GC.

After this appeal had been perfected and a supersedeas bond given by the appellant on September 7, 1950, the trial court, on February 26, 1951, on the application of the trustee in bankruptcy for the defendant, Charles W. Massie, for leave to intervene the trial court made the trustee a party-defendant with leave to plead. Furthermore, when this matter was argued counsel seemed to be in agreement that the entire fund subject to distribution under the order from which this appeal was taken was ordered paid by the Sheriff to the trustee in bankruptcy. We fail to find any jurisdictional ground for this order. We are reqúired to proceed on the assumption that the money is still in the possession of the Sheriff. The Sheriff should promptly seek the assistance of the trial court in recovering the fund.

Also an application to intervene was filed by the trustee in this Court on February 13, 1951, stating that he was appointed trustee in bankruptcy on November 17, 1950 and that he was a necessary party to this proceeding. This Court, not being advised as to the nature of this- proceeding and the type of appeal, on representation that it was an appeal on law and fact, granted the application. It now appears that the order should not have been granted. An order will be drawn vacating the former order making the trustee a party.

On the principal question at issue we find that the judgment of the trial court was prejudicially erroneous. Coming now to make the order which the trial court should have made the Court finds that Gus W. Byttner is entitled to be paid the entire balance of the fund after the payment of the three prior judgment lienholders whose claims are not in dispute.

Judgment accordingly.

HORNBECK, PJ, and MILLER, J, concur.

ON APPLICATION FOR REHEARING

No. 518.

Decided April 2, 1951.

By THE COURT:

Submitted on application of plaintiff-appellee for rehearing. While our rules do not provide for the filing- of an application for rehearing this Court has nevertheless considered the application and finds no new question raised.

Exception is taken to the statement in the opinion that the trial court, recognized the validity of the assignment in the order of distribution. The record shows without question that the trial court in the order of distribution recognized the assignment as between the parties thereto. As against other parties the question of consideration could have been put in issue. The trial court very properly held that no evidence was presented on the matter of consideration for the assignment. Apparently it was assumed that since the assignee offered no testimony on the question of consideration the assignment was not valid against other creditors of the. assignor. It is at this point where this Court differs from the trial court. This Court in its opinion applied the principle of law that where the assignment is absolute and states that it is for a valuable consideration, until the contrary is shown, it will be presumed to be upon a sufficient consideration. This principle of law was not applied by the trial court, but should have been and is controlling in the determination of the issue presented.

Application denied.

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


author: Per CURIAM:

text:
    BASCONI, Plaintiff-Appellant, v. DELLI, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22142.
    Decided April 30, 1951.
    A. L. Kearns, A. R. Roman, David Perris, Cleveland, for plaintiff-appellant.
    A. R. Piorette, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

This case is reversed for error of the trial court in sustaining the demurrer to the first cause of action of the second amended petition and in rendering judgment of dismissal of the first cause of action. The cause is remanded to the Municipal Court of Cleveland with instructions to overrule the demurrer and for further proceedings according to law.

This Court’s ruling is based not on any question of affirmance or disaffirmance of a contract by a minor upon attaining majority but solely on the ground that in ruling upon a demurrer to an amended petition which has been filed in place of an originad petition, the amended petition canno.t be aided or omission therein supplied by averments in the original petition, not contained in the amended one. Ironton v. Wiehle, 78 Oh St 41; 31 O. Jur. “Pleading” Sec. 143 page 704.

The frequent statement that a demurrer searches the record and admits facts that are well pleaded does not mean that in this case the court may examine either the original petition or the amended petition^ the demurrer having been filed to the second amended, petition. On trial of the case, any admissions or statements under oath in the original or amended petition may be considered together with any other evidence on the subject of affirmance by plaintiff of the contract which plaintiff alleges was entered into during minority.

Judgment reversed and cause remanded for further proceedings according to law. Exc. Order see journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


author: By PHILLIPS, PJ.

text:
    SKINNER et, Plaintiffs-Appellees, v. COLER et, Defendants-Appellees, ROEPKE et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3315.
    Decided June 22, 1950.

      Jesse H. Leighninger, G. F. Hammond, Youngstown, for plaintiffs-appellees.
    Raleigh P. Swanner, Youngstown, Ohio, for defendants-appellees.
    Thomas E. Antonelli, Clyde W. Osborne, Youngstown, for defendants-appellants.
   OPINION

By PHILLIPS, PJ.

In this opinion, unless otherwise designated, individuals who were parties in the case we review will be referred to by their surnames and partnerships and corporations by their partnership or corporate names.

Plaintiffs, doing business as The Boardman Lumber Company, sued defendant Albert Coler, general contractor for the construction of, and defendants Herman Roepke and Marie Roepke, the owners of, a dwelling house situated in Mahoning County, Ohio, to secure a money judgment against defendant Coler and a decree of foreclosure thererof against defendants Roepke for material furnished in the construction of such building for which it had not been paid.

Defendants Richard Jones, d. b. a. Jones Plumbing and Heating Company, and the District Builders Supply Company had, or claimed to have had, some right, title or interest in the premises described therein by reason of having furnished labor and material to defendants Coler for the construction thereof, which they set up by their respective cross-petitions after having answered to plaintiff’s petition, and' which claims have been settled.

On the 16th day of September, 1947, defendant Herman Roepke entered into a written agreement with defendant Coler in which he agreed to build a house for defendants, Herman and Marie Roepke, in Mahoning County for $6,000.00.

Simultaneously with the execution of such contract defendants Roepke paid Coler $2,500.00, and as the work progressed an additional $1,000.00.

While the work was in progress Coler determined that he could not build such house for the contract price, and applied “some of it ($3,500.00) to the bills for material and paid the labor for the construction of the Roepke house out of it, and I used some of it for my own labor but I did not keep books on it”; and as the trial judge held breached the contract of September 16, 1947.

After Coler advised defendants Roepke that he could not build the house for the price stipulated in the contract, they, together with plaintiff and others, had several conferences concerning the completion of such house and payment of material delivered to Coler for that purpose. During those conferences defendant Coler offered to furnish the labor and supervision necessary to complete the house and build a garage, the construction of which garage was not provided for in the original written agreement, if defendants Roepke would furnish the material, which the evidence discloses they refused to do. Coler claims he agreed to do this, and contends such arrangement constituted a modification of the written agreement as shown by his cross-petition, to which reference is made later herein.

At that time Coler admittedly owed the Boardman Lumber Company $1390.72 for material delivered to Coler for use in the construction of the defendants Roepke’s house.

The parties were unable to reach an agreement of settlement and defendants Roepke completed their house at a total cost of $7740.67, which did not include the amount owed the Board-man Lumber Company, but did include the bills of other materialmen and labor, with whom settlement in some instances was made before and in some instances after suit was filed in the court of common pleas.

Subsequently the Boardman Lumber Company .sued Coler in the court of common pleas for the amount he owed it for material delivered to defendants Roepke, and to foreclose its lien of $1390.72 on their property.

The trial judge directed the jury to return a verdict for the Boardman Lumber Company against Coler for $1390.72, with interest from February 1, 1946, on the first cause of action of its petition, upon which verdict subsequently he duly entered judgment. The trial judge found the lien of the Boardman Lumber Company, as alleged in the second cause of action of its petition filed in the trial court, was a good and valid lien on the property of defendants Roepke, and entered a decree of foreclosure thereof accordingly.

Thereafter the trial judge submitted the case to the jury on the following pleadings:—

The cross-petition of Roepkes in the first cause of action of which they alleged inter alia their willingness to complete their contract with Coler in accordance with its terms; the misapplication by Coler of money paid him to construct their house, and by reason of Coler’s conduct the necessity of their completing its construction at a cost of $9963.92; and in the second cause of action thereof they prayed judgment against Coler for $3962.92.

The answer of defendant Coler to the cross-petition of Roepkes in which he admitted the execution of the contract, payment of $3500.00 to him by Roepkes, and generally denied all other allegations of such pleading.

Coler’s cross-petition against Roepkes in which he alleged inter alia “that on or about the 28th' day of November, 1947, he and' the said defendant had a conference in which the progress of the building, the cost of the building and labor costs were discussed and considered,” and “that the original contract was modified in that the defendant Herman Roepke, agreed to assume and pay all claims for materials which had gone into the building, and to further pay all materials necessary to complete the building, including the garage; that the defendant, Albert Coler, was to work and supervise the job without additional compensation and retain all money which he had previously received from the defendants and not paid to subcontractors.”

The cross-petition of defendant Coler in which he alleges that “said parties entered into the performance of said modified agreement, and this defendant stood able, ready and willing to perform his part thereof, but the defendants, Herman Roepke, maliciously and wilfully set about on a course of action and conduct to make him quit the job; that they accused him of appropriating and using without right materials which had been purchased for said building; that by reason of the conduct of said defendants, he was forced to leave the job; that they refused to pay for the materials which had gone into said building and refused to purchase the necessary materials to complete the building.”

Herman Roepke answered to Coler’s cross-petition in which he generally denied each and every fact stated, averment made and allegation set forth therein.

The issue, among others, “whether or not there was a modification of the contract” of September 16," 1947.

After due deliberation the jury returned a verdict for $1390.72 in favor of Coler against Herman Roepke.

' Herman Roepke appealed to this court on questions of law and on questions of law and fact from the judgment of the trial court. By agreement of counsel the case was tried as an appeal on questions of law and fact, and submitted to us on a transcript of the testimony and the evidence submitted in the trial court.

It was admitted during trial in the court of common pleas and in this court that Coler owed The Boardman Lumber Company $1390.72, and there is ample evidence in the record submitted to us for review that he owed that amount for building materials delivered “on the Roepke job.”

In our opinion there is ample evidence that the lien of the Boardman Lumber Company on Roepke’s property for that amount was a good and valid lien, and therefore we do not quote evidence with reference thereto.

By brief counsel for Roepke lists “questions presented by the evidence” for our determination, which we answer as shown by the answer noted below each question presented:—

“1. Whether or not the mechanic’s lien filed by the plaintiffs and recorded in volume 37, page 209, is a valid mechanic’s lien.”
Answer: It is a good and valid mechanic’s lien.
“2. Whether or not the defendants Herman and Marie Roepke were entitled to a judgment against Albert Coler for breach of contract.”
Answer: They were not entitled to a judgment against Albert Coler for breach of contract.
“3. Whether or not Albert Coler was entitled to a verdict or judgment against the defendants Herman and Marie Roepke when he breached the contract when the building was about half constructed.”
Answer: He was entitled to the judgment rendered by the trial court.
“4. Whether or not the written contract dated September 16, 1947, was modified to form a novation as claimed by the defendant Albert Coler from all the evidence.”
Answer: It was modified to form a novation as claimed by the defendant Albert Coler from all the evidence.

Without further word of explanation, which we deem unnecessary since the facts and the law have been fully discussed heretofore herein, our finding and judgment is the same as that made in the court of common pleas.

An entry drawn in accordance with that conclusion may be presented by prevailing counsel for signature.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By THE COURT.

text:
    FULTON AND McALLISTER, LIMITED, Plaintiff-Appellee, v. SCHNEIDER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4444.
    Decided September 21, 1950.
    Griffith & Griffith, Columbus, for plaintiff-appellee.
    Albert E. Savoy, Lancaster, for defendant-appellant.
   OPINION

By THE COURT.

Briefly stated, the record discloses that the plaintiff is a real estate broker; that it secured a lease on certain real property for this defendant and her co-owners; that the lease contained a provision that if the lessors sold the premises to the lessee within a specified time they would pay the plaintiff its regular brokerage fee of 5 per cent on the sale price. Within the specified time the lessee purchased the property from the lessors and this action is to recover from the defendant her portion of the brokerage fee due under the terms of the lease. The defendant in attempting to show that the provision in the lease for the benefit of the plaintiff was rescinded, offered evidence to show that a partition suit had been filed and later withdrawn, but the court rejected this evidence as being immaterial to the issues. The court did not err in its ruling, for such a contract may not be abrogated by only one of the parties. It must be by mutual consent, and when done the obligation to the third party is released if done before he has accepted the agreement or asserted p his rights thereunder. Discount & Mortgage Co. v. Joseph, 117 Oh St 132; Brewer v. Maurer, 38 Oh St 543. The contract is one which may be enforced by the plaintiff. 9 O. Jur. 446, Sec. 220; Emmitt v. Brophy, 42 Oh St 82; The Mabley & Carew Co. v. Borden, 129 Oh St 375; Rhorbacker v. Building Association Co., 138 Oh St 273; In re Estate of DiSanto, 142 Oh St 223; 12 Am. Jur. 825, Sec. 277.

We find no prejudicial error in the admission or rejection of evidence, and that the judgment is in full accordance with the law and the evidence. Finding no error in the record, the judgment will be affirmed.

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


author: By McBRIDE, J:

text:
    REINERT, Plaintiff, v. SHELBY MUTUAL CASUALTY CO., Defendant.
    Municipal Court, Civil Division, Dayton.
    No. C-10195.
    Decided June 26, 1951.

      Jacobson & Durst, Dayton, for plaintiff.
    Harshman & Young, Dayton, for defendant.
   OPINION

By McBRIDE, J:

The plaintiff purchased a.new Chevrolet for $1788.00, plus tax, and on August 23,1949 obtained comprehensive $50.00 deductible insurance policy from the defendant, The Shelby Mutual Casualty Company.

About October 1st, 1949, the car was damaged in an accident and the company paid $500.45 to plaintiff in settlement of the claim.

About November 12,1949, a second arid more serious accident was reported. At this time, plaintiff insisted he was entitled to a new car and refused to accept the company’s offer to pay $1025.00 based on an estimate of an established Chevrolet dealer for the repair of the car. Plaintiff obtained a salvage estimate of $500.00 on the car in its damaged condition and on the basis of that estimate, a settlement was reached based on a valuation of $1725.00 prior to the accident, less $500.00 for salvage, less the $50.00 deductible feature and involving payment by the company to plaintiff of $1175.00. No agreement other than the formal subrogation statement was signed on this settlement. The plaintiff retained his insurance policy and title to the vehicle.

Thereafter, the plaintiff accepted the lowest bid and had the car repaired for $683.72 through the use of used parts, some of which were welded. Although it is apparent that the plaintiff accepted old rather than new parts, the record is not clear as to the condition and value of the car after the repairs were made. The car was in the garage about one month. During this period, plaintiff contacted the local agents of the defendant insurance company from whom he had purchased the policy and obtained a suspension of coverage while the car was off the road. A credit memo was issued and when the plaintiff was ready to drive the car again, he requested and obtained a re-instatement of the policy as of December 20, 1949, from the defendant’s local agent.

On August 9th, 1950, it happened again. This time the damages to the car amounted to $292.90. A claim was made, refused and the policy formally cancelled with a cash refund for the few days unexpired on the policy.

The pleadings set forth plaintiff’s claim for $242.90, his damage less the deductible portion, and the defense of payment of the full actual cash value of the car in the prior accident. The defendant company’s counter-claim seeks recovery of the difference between what it paid on the second accident and the cost of repairs, or $541.28 as money wrongfully withheld and offers to allow a credit on this figure of $242.90 for the third accident, and prays for judgment against the plaintiff for the difference of $298.38. The reply admits the repair of the car for $683.72, contains other admissions and denials and requests that the counter-claim be dismissed.

It is apparent that the settlement on the second accident was arrived at on the basis of a total actual loss of $1725.00 and that the salvage value represented therein and ownership of the vehicle was retained by the plaintiff. The fact that this basis was insisted -upon by the plaintiff and accepted by the defendant company in determining the figure to be used in settling the loss did not prevent the plaintiff from using the vehicle. The fact that it was repaired with used parts for substantially less than the cash received does not establish that plaintiff received any excess beyond his actual loss nor that his real damages were any less. The economy exercised in making repairs indicates that the repaired vehicle was worth less than before such accident. From this record, we may conclude that after being repaired, this car — already the victim of two accidents — was actually worth about $1233.72, although on the market, a purchaser who failed to inspect it or was unaware of its history would probably have paid more.

It is also significant that the highest estimate, which the -company offered to pay the insured was only $150.00 less than the amount actually paid on the basis of total loss.

Under the circumstances, there being no fraud alleged or established, and in the absence of any testimony that the plaintiff was not actually damaged to the extent of such payment, the Court'cannot 'support the company’s claim that any money was wrongfully paid or withheld as a result of a settlement which the parties themselves accepted as the real loss after the customary negotiation.

This reduces the issue to the question of the company’s liability under the policy for the $242.90, its share of the damage as a result of the third accident. It is argued that having settled on the basis of the full actual cash value on the second accident, the provisions of the policy for payment for damages to the vehicle were fully executed and exhausted and that the insured cannot make any further claim on the same particular car for any subsequent accident.

We have been referred to Hayes Freight Lines v. Tarver, 148 Oh St 82, 35 O. O. 60 (1947) which holds that one who recovers the full value of a motor vehicle, or the full value less the salvage, may not also recover for loss of use of the vehicle. Tt is sound general law that an owner is to be made whole and it is common sense that if he has received the full value in one form or the other, he cannot receive more as the result of any single accident. The Hayes case applies to but one injury and has no application to a case which involves several distinctly separate accidents.

The case of Baker v. Central Insurance Company, 3 Oh Dec Reprint 478, (1868), presents a more ingenious argument. In that case, the defendant accepted a portion of the risk on the “steamer Sioux City” with permission to navigate the Ohio and Mississippi Rivers.' When the risk was taken, the ship was navigating these waters. Subsequently her machinery, boilers and wheels were removed and placed upon another hull to which they were permanently adjusted. The hull of the Sioux City was lost lying at St. Louis where it was crushed and afterwards sunk by the ice. The lower Court decided that the description of the vessel as a “steamer” was a warranty of condition and use and that when the machinery and wheels were transferred, the original hull was virtually abandoned and the contract of insurance terminated. The Superior Court of Cincinnati held there was a warranty implied that the subject was a vessel, of such description and that it would continue to be so during the insurance contract and that the abandonment of the hull for all purposes of navigation ended the risk of the underwriter. In other words, the subject matter of the contract ceased to exist as a “steamer.”

It is argued that in the instant case that since at the time of the settlement, the plaintiff refused the offer to repair and insisted that the settlement be on a total loss basis, with a deduction for salvage value, that the particular motor vehicle ceased to exist and therefore that liability under the contract came to an end as in the steamer case. The difficulty with the argument is that in the steamer case, the change in the condition and abandonment of the vessel was a fact; in the instant case such a change or abandonment is a 'fiction which arises out of the method knowingly used in reaching the settlement and not out of the facts in the case. The damaged vehicle continued to exist and to be knowingly used as such within the purpose and expression in the policy and also the motor vehicle act. The record discloses that the plaintiff’s car did not lose “its character as a motor vehicle, or changed in such manner that it is not the motor vehicle described in the certificate of title * * Sec. 6290-12 GC.

The change that resulted to the car is reflected in an endorsement of November 14, 1949, attached to the policy which indicates a cancellation of all coverage except comprehensive <fire, theft, etc.) while the vehicle was in the garage- undergoing repairs and the issuance on December 20, 1949, by the defendant of a “re-instatement of insurance” form.

The policy in question is described as national standard automobile policy, first revision. The issue arises under schedule E-l Collision, or Upset, which lists the' limit of liability as “actual cash value less $50.00 deductible.” Coverage E-l is defined in the agreement as follows:

“To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declarations as auplicable hereto.”

This provision clearly obligates the insurance company to pay for EACH loss in excess of the deductible amount and not in excess of the actual cash value. There is no limitation on the liability of the company for successive accidents so long as each individual loss is within the limitations expressed. It is apparent that the company adopted this interpretation because the losses paid on the first two accidents, plus the salvage value exceed the actual cash value as well as the original purchase price of the vehicle. It is conceded in the company’s brief that it could not cumúlate the payments it might make for separate accidents and then claim that the limit of liability was reached when it paid a total equal to the actual cash value of the automobile.

The company pleaded that its liability for the third accident was limited as a result of paragraph 13 of the contract, however, in its brief it is admitted that the policy does not permit such interpretation.

Paragraph 13 reads:

13. Limit of Liability; Settlement Options; No Abandonment — Coverages D, E-l, F, G-l, H and I:

The limit of the company’s liability for loss shall not exceed the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss nor what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation, nor the applicable limit of liability stated in the declarations.

The company may pay for the loss in money or may repair or replace the automobile or such part thereof, as aforesaid, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is so replaced, or may take all or such part of the automobile at the agreed or appraised value but there shall be no abandonment to the company.

Construed with the rest of the contract, this provision limits the liability for each loss and as indicated in its caption provides for settlement options such as, actual loss, replacement cost, or the company make take the automobile at its agreed or appraised value.

In this case, the company did not elect to take title nor to repair the car, nor does the testimony indicate that the amount of the loss was determined by the repair or replacement provision. The parties finally agreed to settle the second claim on the cash value of the loss as determined in their bargaining.

In doing so the company exercised one of its options in paragraph 13 in settling one loss.

The company pleads that this payment “constituted the limit of its liability to the plaintiff as set forth in condition 13 and that there was no collision coverage existing at the time of the accident * * * on July 9th, 1950.” We have not been referred to any case which so interprets such a standard automobile policy and in view of the general rules of construction applied to such policies we must hold that the written instrument recognizes the actual cash value as the limit of liability of each loss and that such recognition indicates an understanding that payment of such limit in no way restricts the liability of the insurance company for subsequent losses to the same vehicle where the company permits the insured to retain an insurable interest in the subject of the contract. This conclusion is particularly justified where subsequently the company recognizes the existence of the policy by suspending its operation while the car is repaired and re-instating the policy after such repairs are completed. Such conduct operates as an estoppel to prevent the company from asserting that the policy was no longer effective for the purpose for which it was issued.

An entry may be prepared finding for the plaintiff for $242.90 and against the defendant on its cross-petition.


author: By HURD, J:

text:
    HALL, Plaintiff-Appellant, v. CARTER et, Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21847.
    Decided December 26, 1950.
    C. L. Sharpe, for plaintiff-appellant.
    M. H. Wegman, Cleveland, for defendant-appellees.
    (DOYLE, J, of the Ninth District, sitting by designation in place of SKEEL, PJ.)
   OPINION

By HURD, J:

In this appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County in favor of the defendants, an examination of the pleadings and the record discloses that an issue was made upon a petition for declaratory judgment, praying the Court for an order declaring the plaintiff be entitled to be restored to a building permit originally issued by the Inspector of Buildings of the Village of Solon on November 30, 1946, for the erection of a dwelling house on plaintiff’s lot on Crestmont Avenue in Solon, Ohio.

The record shows that after the building plans and specifications had been approved and the building permit issued in accordance therewith, and after a permit was also granted by the Cuyahoga County District Board of Health allowing the installation of a disposal plant, the plaintiff was notified that his building permit had been suspended together with permits covering seven other properties under Emergency Ordinance No. 1947-3 which reads in part as follows:

“Sec. 1. This Council finds that buildings can probably not be constructed under the permits listed in Section 2 hereof without violation of' the provisions of Section 121 of Ordinance No. 1928-113 relative to the drainage of cellars and that said permits should be suspended until the ability of said permittees to construct said buildings without such violation is determined.”

The applicable part of Ordinance No. 1928-113 Sec. 121, referred to an Emergency Ordinance which was passed in 1929 and reads as follows:

“Before the walls of buildings built on clayey or compact soils which hold water, are carried up above the foundation walls, the cellars shall be connected through drain tiles and catch-basins with the street sewers. Should there be no sewer in the streets, or if cellars are below the sewer or ground water level, then provisions shall be made to prevent water accumulating in the cellars to the injury of the foundations or the occupancy of the basement or cellars.”

The evidence shows that all of the permits except that of the plaintiff were restored and the persons allowed to proceed with their building plans.

Considerable of the testimony in the record relates to a matter which was not put in issue by the pleadings, namely, the adequacy or inadequacy of a sewage disposal plant for treatment and disposal of waste for which the County had issued a permit to which reference has been made above. The sole issue in the case to which the evidence should have been confined relates to compliance with Ordinance No. 1928-113— Sec. 21, requiring plaintiff to make provisions “to prevent water accumulating in the cellars to the injury of the foundations or the occupancy of the basement or cellars.” On this issue plaintiff proffered testimony showing or tending to show the terrain of the surrounding territory and the location of nearby homes etc., as bearing upon the feasibility of his plans and the possibility of complying with the terms of the Ordinance in question. The court sustained objections to this testimony.

We think the rejection of this testimony was prejudicially erroneous. If the general territory and terrain surrounding the plaintiff’s premises showed that others similarly situated were able to comply with the ordinance, such evidence would strongly favor the contention of plaintiff that he could likewise conform to the requirements of the ordinance as he did the other permittees whose permits had been restored.

We do not pass upon the question of the validity of Emergency Ordinance No. 1947-3 which was challenged in these proceedings and argued by way of briefs, for the reason that the Village of Solon was not -made a party defendant to this action as required by §12102-11 GC, Chapter 10 Declaratory Judgments which provides in part as follows:

“In any proceeding which involves the validity of-a municipal ordinance or franchise, such municipality shall be. made a party and shall be entitled to .be heard, and if the statute, ordinance or franchise is held to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.”

For the reasons stated, the cause is reversed and remanded to the Common Pleas Court for further proceedings according to law. Exceptions noted. Order see journal.

McNAMEE, J, DOYLE, J, concur.


text:
    LEIBY, Estate of, in re.
    Ohio Appeals, Second District, Franklin County.
    No. 4493.
    Decided October 24, 1950.
    Andrew J. White, Noel L. Greenlee, Columbus, for William C. Leiby, administrator-appellee.
    Matthew L. Bigger, Columbus, for Verda Cosgrove, respondent-appellant.
   OPINION

By THE COURT.

This action arose in the Probate Court of Franklin County. It was brought under §10506-67 GC, for the discovery of concealed assets. The appellant was found guilty of the charge and in accordance with §10506-73 GC, a judgment was rendered against her and in favor of the administrator of the estate in the sum of $56,617.95. On July 3, 1950, the motion for a new trial was overruled and notice of appeal was filed on July 19, 1950, upon questions of law and also upon questions of law and fact. No appeal bond has been filed, the time for which has now expired. The appellant now files a motion requesting this court to issue a writ of supersedeas or stay of execution without the giving of a bond in conformance with §12223-9 GC. The appellant urges that since the statute imposes a 10 per cent penalty for its violation and which penalty was included in the judgment, that this action is in the nature of a criminal proceeding and therefore §12223-9 GC has no application; that this court has the power and duty to grant a stay of execution and “where there are important questions of law involved, where serious irreparable loss will be visited on the party appealing where judgment may be reversed, where plain, simple justice requires it, and especially where the judgment creditor has a lien on the real estate of the alleged judgment debtor.” Citing §1514 GC which provides:

“In addition to the original jurisdiction conferred upon it by section six of article four of the constitution, the court on good cause shown, may issue writs of supersedeas in any case, and all other writs not specially provided for, nor prohibited by statute, which may be necessary to enforce the due administration of justice.”

We do not think this statute authorizes us to order a stay of execution in violation of the requirements of §12223-9 GC, which provides:

“No appeal shall operate as a stay of execution except as hereinafter provided, unless and until a supersedeas bond be executed on the part of the appellant to the adverse party

The supersedeas is here sought because of the appeal which it is urged may reverse the judgment and in such case if not allowed would cause an irreparable injury to the appellant. The same could be said of any case in which there is a money judgment. This case is not an unusual one but the same as any other in which there is a money judgment. It is not a criminal case because of the penalty added. The rules of civil procedure are applicable just the same as they are in tax cases where penalties are often imposed. It is our conclusion that on an appeal on questions of law from a judgment there can be no stay of execution or supersedeas thereof unless a bond is given. See 2 O. Jur., Section 274, page 544.

The motion will be overruled.

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

ON MOTION TO DISMISS APPEAL

No. 4493.

Decided November 3, 1950.

OPINION

By THE COURT.

Submitted on motion to dismiss the appeal on questions of law and fact for the reason that no appeal bond has been filed as required by §12223-6 GC, and the time for which has expired. The motion will be sustained, but the cause will be retained for determination on questions of law. The appellant will be granted leave to perfect the appeal in accordance with Supplement to Rule VII of this Court.

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


author: By MILLER, J. By THE COURT.

text:
    LEIBY, Estate of, in re: LEIBY, Admr., Complainant-Appellee, v. COSGROVE, Respondent-Appellant.
    No. 4493.
    Decided March 15, 1951.
    Noel L. Greenlee, Andrew J. White, Columbus, for appellee. Matthew L. Bigger, Columbus, for appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Probate Court finding the respondent guilty of having been in the possession of moneys of the estate of Robert S. Leiby, deceased, in the sum of $51,470.85, for which judgment was rendered and also the ten per cent penalty as provided by statute. The judgment was entered upon the report of a master com-, missioner to whom the matter had been referred. The action was instituted by the filing of a complaint under §10506-67 GC. The original complaint charged the respondent with* having concealed, embezzled or carried away goods, chattels and things in action or effects of said Robert S. Leiby, deceased. During the course of the hearing an application was made to amend the complaint by inserting the following words “or that she is or has been in the possession of.” The application was allowed and we think properly so as it was in conformity with the evidence. See In re Howard, 79 Oh Ap 210. But the respondent urges that the complaint does not state a good cause of action - for the reason that it charges the respondent with having concealed, etc., goods and effects, etc., “of said Robert S. Leiby, deceased,” and not “of such estate” as provided by statute. The law is well established that special statutes are to be strictly construed, but even so we are of the opinion that the wording of the affidavit meets the statutory requirements. All of the effects of Robert S. Leiby became his estate upon his death, so we can see no distinction between the two terms.

It is further urged by the respondent that the Court had no authority to refer the case to a master commissioner. The trial court properly held that the reference to a master was authorized by §10501-33 GC. The Court was of the opinion that §10506-73 GC authorized a jury trial but does not require it; that it may be had only upon request being made for the same, and since no such demand was made the case was properly submitted to the master. This appointment .was. not in derogation of §11490 GC which is a general statute authorizing the appointment of a master when the case is not triable to a jury. This statute is not applicable here as no demand was made for a jury trial, and unless such demand is seasonably made all trials in the Probate Court, in which a jury could be demanded, are properly held before the Judge. It is our conclusion that the submission of this matter to a master was permitted by statute.

The respondent urges further that the facts of this case indicate that the action should have been for an accounting instead of proceeding under §10506-67 GC. It therefore becomes necessary to look into the facts presented which may be epitomized as follows:

The respondent, Verda Cosgrove, had been a bookkeeper for the decedent, Robert S. Leiby, from the year 1926 up to the time of his death, some twenty years later; that as such she had charge of the pay roll of all employees; that a check would be drawn for the necessary cash to meet the requirements and she would then distribute the money to the various pay envelopes. In so doing more money was withdrawn from the bank than needed. The master found the following facts which we think were sufficiently supported by the record and therefore not against the manifest weight of the evidence:

1. The respondent, Verda Cosgrove, made withdrawals from the decedent’s bank account in excess of pay roll requirements for the years 1944 to and including 1949, to the amount of $51,470.85.

2. The respondent, Verda Cosgrove, retained possession of said funds so withdrawn.

3. Said funds are the property of and belong to the estate' of Robert S. Leiby, deceased.

We are of the opinion'that the action was properly brought under §10506-67 GC, and that it was not one for an accounting. It involved the possession of assets belonging to the decedent at the time of his death and by virtue of the same it belonged to his estate. There was no relationship or circumstance existing between respondent and decedent which would give rise to a duty to account. The facts found by the master clearly show a wrongful taking or possession of moneys belonging to the decedent, of which he was in complete ignorance up to the time of his death. Therefore, he never lost title to the money involved herein. The very purpose of the statute is to provide a summary means, inquisitorial in nature, to recover specific property or the proceeds thereof belonging to an estate, title to which was in the decedent at the time of his death. In re Estate of Black, 145 Oh St 405.

It is also urged by the respondent that her constitutional rights were violated in that she was required to answer questions which tended to incriminate her. We have carefully examined the transcript of the testimony on this subject and we find that many questions were propounded to the witness over the objection of counsel and the master required her to answer them. It was not until later in the proceeding that the witness personally claimed the privilege. In all cases in which the witness claimed her privilege the master properly passed upon the same allowing it in many instances. The privilege conferred upon a citizen of this state by Section 10, Article I of our Constitution is a personal privilege. The objection must be taken by him and cannot be raised by a party to the suit or his counsel. In Jones on Evidence, at Section 890, page 1405, we find a discussion of the matter of privilege which contains the following language:

“We have already seen that the witness may waive the privilege by failing to.make timely objection. For still stronger reasons, the privilege, is waived, if no objection whatever is made. The privilege is .that of the witness; the objection must be taken by him, on his oath, after the question has been asked, and it cannot be raised by a party to the suit or by an attorney. Nor should the court interfere, but should leave the matter with the witness to avail himself of his privilege or not, as he sees fit. There is ordinarily no positive rule of law which requires a court to apprise a witness of his right not to give self-incriminating evidence. However, fair and impartial judges frequently, in proper cases, notify witnesses of their rights in this regard.”

In the case of State v. Cox, 87 Oh St 329, at page 346, Judge Donahue says:

“The privilege conferred upon a citizen of this state by Section 10 of Article I of our Constitution is a personal privilege, and he may waive this privilege if he desires to do so. * * * Merely being compelled to appear in pursuance of a subpoena and to be sworn is no violation of this constitutional privilege. This is all preliminary to his testifying and is not prohibited by the Constitution, and it is only after the administration of the oath that the witness can assert his privilege, for it can only be asserted under the sanction of an oath.”

The trial court properly held that the action was not criminal, that the laws governing civil proceedings were applicable. In re Estate of Howard, 79 Oh Ap 203; Leonard v. State, ex rel. Scott, 3 Oh Ap 313; Lindquist v. Hayes, 22 Oh Ap 141.

The doctrine of estoppel set forth by the appellant has no application hére for the reason that the decedent had no knowledge of any facts which would create an estoppel. The master found from the evidence, and which we think the record supports, that the decedent had no knowledge of the appropriations from the pay roll funds by the respondent.

We find none of the other errors assigned well taken, and the judgment will be affirmed.

HORNBECK, PJ, concurs.

WISEMAN, J, concurs in judgment.

ON APPLICATION FOR REHEARING

No. 4493.

Decided April 18, 1951.

OPINION

By THE COURT.

This is an application for a rehearing in which we find nothing that was not previously urged by the appellant and which was not given full consideration by this Court. We see no reason for changing our former decision, and the application will be denied.

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


text:
    COLELLO, Plaintiff-Appellant, v. BATES et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1027.
    Decided June 24, 1950.
    Robert E. Hall, R. N. Larrimer, Columbus, C. L. Hawthorne, Steubenville, for plaintiff-appellant.
    Hugo Alexander and Carl F. Allebaugh, Steubenville, for defendants-appellees.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiff in the court of common pleas will be called plaintiff, and defendants there Robert D. Bates, a former sheriff of Jefferson County, and The Home Indemnity Company, a New York corporation, will be called defendant sheriff and defendant corporation respectively.

Defendant corporation issued a bond on defendant sheriff indemnifying any person, or persons, firms or corporations, against loss or damage occurring to them, or any of them, by reason of his misfeasance or malfeasance in office while acting-as sheriff of Jefferson county.

Plaintiff, the widow of Dominic Colello, an employee of the Wheeling Steel Corporation, appealed to -the court of common pleas of Jefferson county from a ruling of the Industrial Commission of Ohio denying her compensation claimed due to her as the result of the injury and death of her husband while employed by such corporation in Jefferson County, Ohio.

In that action, numbered 34531 on the docket of the court of common pleas, plaintiff duly filed a praecipe with her petition. The clerk of that court issued a summons directed to defendant sheriff, which was returned showing service made on the managing agent of Wheeling Steel Corporation, defendant in that case, on July 13,1942, by Thomas Montgomery, then deputy sheriff of that county. Thomas Montgomery testified in the case we review that no service was made in common pleas case number 34531 upon such managing agent, but that such service was made upon the chief clerk of that corporation.

In appeal numbered 1001 on the docket of this court the judgment entered in case number 34531 in the court of common pleas sustaining a demurrer to plaintiff’s reply was affirmed on July 15, 1947.

On April 22, 1947, plaintiff sued defendants in the court of common pleas of Jefferson county in case numbered 38102 on the docket of that court (which is the case we review) to recover a money judgment against defendants, which action was based upon the misfeasance and malfeasance of defendant Bates in making a false and fraudulent return of summons in common pleas court case number 34531, by which allegedly she lost, her right to participate in the Workmen’s Insurance Fund of Ohio.

The trial judge sustained defendant’s motion for judgment in its favor notwithstanding the verdict of the jury returned against it in that case on February 17, 1949; and on May 11, 1949, dismissed plaintiff’s action against defendant.

Plaintiff appealed from the judgment of the court of common pleas entered in case number 38102 to this court on questions of law.

By assignments of error plaintiff contends that the trial judge erred “in sustaining defendant-appellee’s motion non obstante veredicto to judgment of court of common pleas”; that “the same was contrary to law and contrary to the manifest weight of the evidence”; and that there are “other errors apparent on the face of the record.” '

In disposing of defendants’ motion to enter judgment in their favor notwithstanding the verdict of the jury rendered against them the trial judge said:—

“When this motion for judgment notwithstanding the verdict was argued two questions were presented to the court principally: first, that the plaintiff was guilty of contributory negligence which precluded her recovery; second, that there was no evidence showing that the plaintiff’s decedent’s death was the result of an injury which he sustained in the course of and arising out of his employment.”

Without further reference to .the evidence it is clear to us that defendant sheriff negligently failed to perform in common pleas case number 34531 the statutory duty imposed upon him, for which negligence defendants, and/or either or both of them, were answerable in damages to plaintiff in an action commenced timely and pleaded properly.

We find no evidence of probative value that decedent’s death was the result of an injury which he sustained in the course of and arising out of his employment with his employer; nor evidence warranting the trial court submitting that question to the jury.

This conclusion forthwith brings us to a consideration of the question whether the case we review was filed against defendants timely and pleaded properly. We will not discuss this question in the exhaustive manner in which the trial judge discussed it in his excellent review of the case found in the bill of exceptions, to which the respective parties are referred.

While defendants urged that plaintiff was guilty of “contributory negligence” in failing to prosecute an appeal to the supreme court from the decision of this court rendered July 15, 1947, in common pleas case number 34531, precluding her from recovering against defendants in the case we review (38102), yet in open court their counsel stated they were not urging that proposition. Accordingly we will not pass upon that question.

It has been held that §§1465-90, 11230 and 11231 GC (which latter two sections did not apply in the case we review) must be read together. See Houck v. Chrysler Corporation, 14 Abs 711; Beach v. Union Gas and Electric Co., 130 Oh St 280. Like the trial judge we believe that those sections of the General Code and §11233 GC thereof must be read together.

In the state of the record submitted to us for review we hold that plaintiff had one year from July 15, 1947, to commence the action we review (case number 38102). See §11233 GC. Also see Albers, Admr. v. Great Central Transport Corp., 32 O. O. 200.

“Where an action first brought is terminated through no fault or voluntary act of a party who had done all that is required to secure valid service of summons, but the service of summons is set aside by reason of a false return by the process server, of which falsity the party had no knowledge in time to rectify the error within the sixty days allowed by §11231 GC, a new action may be commenced, by virtue of §11233 GC, within one year after the date such party fails otherwise than upon the merits.” Mulcahy v. Mutach, 51 Oh Ap 407.

Plaintiff had no knowledge of such imperfect service within sixty days of the date it was made; but she had knowledge of such imperfect service within one year from the date thereof, and could have filed her new action within that time.

“Under the provisions of §11233 GC, relating to the commencement of actions, in an action commenced, or attempted to be commenced, if the plaintiff fails otherwise than upon the merits and the time limited for the commencement of such action at the date of failure, has expired, the plaintiff may commence a new action within one year after such date.” Greulich v. Monnin, 142 Oh St 113.

Plaintiff filed no action in the court of common pleas within a year after her case was dismissed other than upon its merits. Her action filed April 22, 1947, was never refiled. Obviously plaintiff’s failure to recover was not the proximate result of the sheriff’s misfeasance; rather it resulted from her failure to file timely and plead properly in her action which we review. Therefore, in our opinion, the trial judge did not err to plaintiff’s prejudice in sustaining defendants’ motion for judgment in its favor notwithstanding the verdict of the jury returned against it.

Appellant’s counsel has failed to call our attention to “other errors apparent on 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.

Finding no error prejudicial to plaintiff in any of the respects urged by her upon which we pass the judgment of the court of common pleas is affirmed.

NICHOLS, J, GRIFFITH, J, concur in judgment.