author: By McClelland, PJ.

text:
    NEEDLES, Estate of, In Re; KOHN, Plaintiff, v. KERR, Defendants.
    Probate Court, Franklin County.
    No. 127821.
    Decided April 29, 1949.
    Harry Kohn, Columbus, for Executor.
    Horrace S. Kerr, Columbus, for Executor of Estate of Ona Ellen M. Needles.
    Wiles & Doucher, Columbus, for heirs of Ona Ellen M. Needles.
   DECISION

By McClelland, PJ.

This is an action for the construction of the will of Fred B. Needles, deceased and also for a construction of an ante-nuptial contract entered into by said decedent.

We will first consider the request for a construction of the will. The will is very short and the dispositive part reads as follows:

“I give, devise and bequeath all of the property, real, mixed and personal, which I may own or have the right to dispose of at the time of my death, absolutely and in fee simple to my wife, son and granddaughter in the following proportions, to-wit: to my wife, Ona Ellen M. Needles, one-half thereof; to my son, Carl B. Needles, one-fourth thereof; to my granddaughter, Marilyn Ann Francis, one-fourth thereof.”

The son, Carl B. Needles, who was devised one-fourth of the estate, predeceased the testator, without issue.

The question presented is: Does the latter part of §10504-73 GC, apply to the one-fourth of the estate devised to the son, or does such one-fourth descend as intestate property? The answer to this question turns upon the meaning of the word “relatives” as used in said section of the General Code.

Sec. 10504-73 GC, with the inappropriate parts deleted, reads as follows:

“Sec. 10504-73 GC. DEATH OF DEVISEE OR LEGATEE. When a devise of real or personal estate is made to a child or other relative of the testator, if such child or other relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised as the devisee would have done, if he had survived the testator. If such devisee leaves no issue and the devise be of the * * * entire estate * * * to such devisee and one or more children or relatives of the testator, the estate devised shall pass to and vest in such other devisee or devisees surviving the testator in such proportions as the testamentary share of each devisee in the devised property bears to the total of the shares of all of the surviving devisees, unless a different disposition be made or required by the will.”

It is definitely established that when a devise is made to a husband of the testatrix, if such husband predeceases the testatrix, leaving issue .by a former marriage surviving the testatrix, such issue shall not take the estate devised to husband by virtue of §10504-73 GC, because a husband is not considered as coming within the meaning of the words “child or other relative of the testator”, as employed in said section. Schaefer v. Bernhardt, 76 Oh St 443. In that case the Court said:

“If the word should be regarded as including the husband there appears to be no principle upon which courts could deny it application to all of his relatives by blood, for the wife’s relationship to them is the same in kind, though different in degree, as to her husband. It is, therefore, with obvious reason that courts have invoked the rule Noscitur a sociis as leading to the conclusion that the character of the relationship intended is that of the associated word ‘child,’ that is, a relationship by blood.” * * *

In 57 American Jurisprudence, Wills, Sec. 1442, we find the following under the heading “Relations” or “Relatives”, to-wit:

“Generally, the word ‘relation’ or ‘relative’ in a statute providing against the lapsing of a legacy or devise to a child or other relation or relative of the testator includes only relations by blood and not those merely by affinity, the courts frequently stressing the appearance of the word ‘child’ in conjunction with the word ‘relatives’ or ‘relations’ as an important factor in determining the relationship by blood and not by marriage is the proper construction to be placed on such phrases as ‘child or other relation.’ ”

The note under the above quotation includes the case of Schaefer v. Bernhardt, 76 Oh St 443, cited above.

In 115 A. L. R., at page 447, we find this note under the term “Relations”, to-wit:

“Generally, the word ‘relation’ or ‘relative’ in a statute providing against the lapsing of a devise or legacy to a child or other ‘relation’ of ‘relative’ of the testator includes only relations by blood, and not those merely by affinity.”

Several Ohio cases are cited under this note.

In the case at bar, however, we have the question of whether or not the latter part of §10504-73 GC, applies to the one-fourth interest of the estate devised to the son, when the will devises the entire estate to such son, a grandson and the wife. Is the wife to be considered as a relative entitled to a proportionate share of the son’s one-fourth interest, together with the grandson, in accordance with the latter part of §10504-76 GC?

We have not been able to find a single case in Ohio on this point and counsel have cited no case in point from other jurisdictions.

When the statute provides that where the will devises the residuary estate or the entire estate to a devisee and one or more children or relatives of the testator, it means, in our opinion, that the statute applies only when those given a share of the residue or the entire estate are all relatives of the testator and not just some of them relatives. Therefore, if the wife is not to be classed as a relative within the meaning of the statute, the statute does not apply, and the son’s one-fourth interest in this estate would, under the common law rule, pass as intestate property.

If, as we have observed above, it has been held that the statute does not apply to a devise to a wife who predeceases the testator, we see no reason why the same rule should not apply where the devise of the entire estate is made to the wife and other persons who are relatives of the testator. Consistency requires that the same meaning to the term “relative” should be applied in both situations. That this was the intention of the legislature when it enacted this statute, is brought home to us when we consider the following illustration: Suppose a testator devises his entire estate as follows: one-half to his wife and one-half to his two sons by a former marriage, and the wife predeceases the testator survived by one son of a former marriage. If the wife is to be considered as a “relative” within the meaning of the statute, the two sons of the testator would each receive only one-fourth of the estate, and the child of the wife would receive one-half of the estate.

It is therefore our conclusion that when the latter part of the statute uses the words “one or more children or relatives”, the word “relatives” should, in accordance with the maxim noscitur a sociis be restricted to relationships which are consanguineous and not merely affinitive. We therefore hold that the provisions of §10504-73 GC, do not apply to the one-half interest in the estate devised to the son, Carl B. Needles, and that such one-half interest passes as intestate property.

The Antenuptial Agreement which we are asked to construe reads as follows:

“Ante-Nuptial Agreement
August 27, 1945
“Whereas the undersigned contemplate marriage, it is agreed by the parties, that in event said marriage should terminate in any manner before death, Ona Ellen Minton Needles shall receive from Fred Needles and from his property and possessions, in full of all claims of alimony, dower and any and all rights of every nature & description, the sum of $500.00, Five Hundred Dollars.
(Signed) Ona Ellen Needles
(Signed) Fred B. Needles”

The only manner in which a marriage may be terminated before death is by a decree of divorce rendered by a court of proper jurisdiction. The testator and his wife were not divorced at the time of his death, so therefore the Ante-Nuptial Agreement never became operative.


source: Caselaw Access Project

author: By HILDEBRANDT, J.

license: Public Domain

text:
    ROBINSON, Plaintiff-Appellee, v. GATCH, et Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7104.
    Decided July 5, 1949.

      Burke & Cooney, Cincinnati, for plaintiff-appellee.
    John N. Gatch, Frank A. Roberts, Robert F. Groneman, Wm. J. Creed, Cincinnati, for defendants-appellants'.
   OPINION

By HILDEBRANDT, J.

Law appeal from a judgment setting aside the will of Margaret Curley, deceased, after a jury’s verdict against the will.

After the verdict and judgment entered thereon and during the pendency of a motion for new trial, it was discovered that no Guardian Ad Litem had been appointed prior to the trial for a ten year old infant defendant, upon whom service of summons had been properly made, and to whom by Item Six of the will was given the sum of One Thousand Dollars.

On motion, a Guardian Ad Litem was appointed, who accepted the assignment, and filed what was styled “Report of Guardian Ad Litem,” reciting inter alia that the plaintiff had voluntarily paid to the Clerk of Courts the sum of $1000.00, to be paid to the infant defendant, so that he would thereby receive exactly the same amount bequeathed him in the will, had it been sustained. Thereafter, the court approved an entry, authorizing the payment of the full One Thousand Dollars to the regular guardian of the estate of said minor.

The failure to appoint the Guardian Ad Litem before trial was included as a ground in the motion for new trial.

What is the effect of the failure to appoint a Guardian Ad Litem for the infant defendant here prior to the trial?

The statute, §11252 GC, requiring the defense of an infant to be made by a Guardian for the suit is mandatory, and not a mere matter of form. Burns v. Burns, 20 O. N. P. (n. s.) 116; Long v. Mulford, 17 Oh St, 484. The Long case is the leading Ohio case setting forth the duties of a Guardian Ad Litem and the purpose of the appointment.

In Hasty v. Weller, 33 Abs, 190, the Court, after reviewing the statutory and case law, made the following deductions with which this Court is in accord:

“The purpose for appointing a guardian ad litem or trustee to make defense for-persons under disability, is to have a competent person make a proper defense for the ward; to put in issue all of the material allegations in the petition, and to make certain that the interest of the ward is properly brought to the attention of the court; the appointment of a guardian ad litem or trustee can not be dispensed with except by statute; it is error for the court to render judgment or decree until the answer of the guardian ad litem is filed; the failure to appoint a guardian ad litem or trustee does not render the proceedings absolutely void, but only voidable; such irregularity can not be attacked collaterally, but it is such an irregularity as to be considered reversible error.”

It is, therefore, clear that the original judgment herein could not bind the infant-defendant, and, on appeal by the Guardian Ad Litem for the infant, this Court would be required to reverse the judgment and remand the cause for retrial.

However, it is well settled in Ohio and universally held that after service of summons properly made upon an infant defendant as in this case, the appointment of a Guardian Ad Litem is a mere matter of procedure, and not one of jurisdiction, so that a judgment entered against an infant defendant, for whom no Guardian Ad Litem has been appointed, is not absolutely void, but voidable only. Johnson v. Pomeroy, 31 Oh St, 247, wherein it is stated in the first paragraph of the syllabus:

“A judgment rendered against an insane person, without the intervention of a trustee or guardian, and in favor of one having knowledge of the insanity, is not void.”

See, also: 21 O. Jur., 910, Sections 51-53; and 27 Am, Jur., 842, section 121 “Infants”: —

“While the appointment of a guardian ad litem for an infant defendant is not jurisdictional in the sense that failure to make such appointment deprives the court of power to act and renders such judgment void, a judgment rendered against an infant in an action in which he was not represented by a guardian ad litem or a general guardian is erroneons, and can be overthrown by writ of error coram nobis, or by motion in the same court, or by proper appellate proceedings, at least where the want of such representative affects the substantial rights of the infant.”

In 43 C. J. S. 279, it is stated:

“The fact that an infant party is not represented by a guardian ad litem or next friend, as a general rule, renders the proceedings erroneous, but the judgment entered therein is not void.”

It is further stated at page 281:

“Adult parties cannot invoke the infancy of another party not represented by guardian ad litem to set aside the decree as to themselves.”

It, therefore, becomes apparent that the real question in this case is as to the validity of the settlement effected by the Guardian Ad Litem and approved by the Court.

After judgment adverse to his ward, the Guardian Ad Litem has the right to appeal and the duty to do so if it appears reasonably to the advantage of the infant defendant.

By appeal here, the Guardian Ad Litem could clearly obtain a reversal of the judgment adverse to his ward and a retrial of the issues involved. By a compromise or settlement of the right to appeal, approved by the court, the Guardian gained for the ward everything the ward would ever have been entitled to on appeal and ultimately successful retrial. It was, therefore, clearly to the advantage of the ward. The Guardian Ad Litem effected a compromise and settlement of the right to appeal the judgment adverse to his ward by securing the payment into Court for his ward the full sum of $1000.00, given him by the will. This settlement was approved by the court, as obviously to the utmost advantage ever to be secured to the infant defendant. To disapprove this. settlement now would do equally obvious disadvantage to the infant defendant.

It is universally held, as stated in 43 C. J. S. 302:

“By leave of court. Ordinarily a guardian ad litem or next friend may, with the consent of the court, agree to a settlement or compromise beneficial to the infant, and the court has power to authorize it.”

In 27 Am. Jur., p. 851, section 131, we find:

“If a compromise should seem desirable to a next friend or guardian ad litem, the proper course is for him to submit it to the court, by whom he was appointed, or permitted to act, for its approval and sanction. When so approved, it will be valid and binding. If a compromise agreed to by the next friend is put into judgment, it thereby becomes the action of the court and will bind the infant. All questions of authority of the next friend of an infant to bind him by an agreement to compromise an action are eliminated by the entry of an agreed judgment based upon the-compromise agreement of the parties. It has been held in a number of cases that the court has power to sanction compromises in the settlement of estates, or litigations generally, in which the property rights of infants are concerned. If the court approves a compromise after an examination of the facts, the judgment or decree is binding upon the infant.”

There is nothing in the in rem character of this suit as a will contest, which prevents settlement of the infant’s right of appeal to his advantage, as approved by the court.

We find no error on the record, prejudicial to any of the appellants herein. The judgment is, therefore, affirmed.

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


author: By CARPENTER, J.

text:
    GUY, Plaintiff-Appellant, v. PENNSYLVANIA RAILROAD CO., et al Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21408.
    Decided May 16, 1949.

      O. D. Eshelman, Cleveland, Henslee, Monek & Murray, Chicago, Iillinois, for plaintiff-appellant.
    Squire, Sanders & Dempsey, Cleveland, Paul B. Moritz, Niles, for defendants-appellees.
    (CARPENTER, J, of the Sixth District sitting by designation.)
   OPINION

By CARPENTER, J.

Plaintiff, a resident of Trumbull County, Ohio, brought this action in the Court of Common Pleas of Cuyahoga County to recover damages for personal injuries which he alleged he sustained in the City of Niles, Trumbull County, Ohio, caused by the concurrent negligence of the defendants Pennsylvania Railroad Company and the City of Niles.

The Railroad Company was served with summons in Cuyahoga County and filed an answer in which it denied that it was negligent.

The City of Niles was served with a summons which was issued by the Clerk of Courts of Cuyahoga County to the sheriff of Trumbull County. That city filed a motion to quash the service, in which it objected to the jurisdiction of the court over it for the reason that it is a city located wholly within Trumbull County. That motion was granted and plaintiff, not wishing to plead further, his petition was dismissed as to the City of Niles.

The granting of this motion is assigined as error in this appeal.

There is no question but that the court had jurisdiction over the subject of the action. Did it have jurisdiction over the City of Niles? This is a question of venue. The relationship of jurisdiction and venue is discussed in Loftus v. Pennsylvania Railroad Co., 107 Oh St, 353.

It is within the competency of the General Assembly to fix and determine the venue of civil actions. Allen v. Smith, 74 Oh St, 283, syl. par. 2. And on page 290 of the opinion it is said:

“The wisdom of its exercise is not a judicial question.”

Cited is Handy v. Insurance Co, 33 Oh St, 366 and State v. Nelson, 52 Oh St, 88.

The subject of venue in Ohio is entirely in the control of the general assembly and the common law as expressed by the decisions of other jurisdictions is immaterial.

Sec. 11268 to §11278 GC, tell us where actions may be brought in the court of common pleas. §§11268, 11270, 11271, 11272, 11273 and 11275 GC make provision for specific causes or particular defendants and limit the venue in those actions to certain counties.

It is the contention of plaintiff-appellant that this action does not fall in any of those classes, and hence that §11277 GC, applies, which says:

“Every other action must be brought in the county in which the defendant resides or may be summoned,” * * *

and, that §11282 GC, prescribes how the City of Niles “may be summoned” as follows:

“When the action is rightly brought in any county, according to the provisions of the next preceding chapter, a summons may be issued to any other county against one or more of the defendants at the plaintiff’s request.”

Under §11273 GC, the defendant railroad company might have objected to the jurisdiction of the court over it, but it did not choose to do so and waived that right when it answered, thus the action was “rightly brought” in Cuyahoga County, and under §11277 GC, plaintiff says that it follows that the defendant, City of Niles, was properly served and the court erred in quashing the summons and the service of it.

In this reasoning plaintiff overlooks the specific terms of §11272 GC, which says:

“An action other than one of those mentioned in the next four preceding sections, against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, * * *” (Emphasis ours.)

This part of this section has not been changed since it was enacted as Section 48 of the Civil Code in 1852, 51 O. L. 65.

The court will take judicial notice that the City of Niles was a municipal corporation and that it was created under the laws of this state. Was it “a corporation” within the meaning of §11272 GC?

Sec. 11288 GC, provides:

“A summons against a corporation may be served upon the president, mayor, chairman or president of the board of directors or trustees, or other chief officer * * *.”

The inclusion of “mayor” with officers of private corporations indicates that the legislature intended to include municipal corporations in the general term “corporation”.

Sec. 3615 GC, says:

“Each municipal corporation shall be a body politic and corporate, which shall have perpetual succession, may use a common seal, sue and be sued * *

A municipal corporation has all of the usual attributes of a corporation in the broad sense of that term.

The Supreme Court of Ohio has not directly decided that the term “corporation” as used in §11272 GC, means a municipal corporation. In Directors of Muskingum County Infirmary v. Toledo, 15 Oh St, 409, at page 411, the opinion, speaking of townships, says:

“They, as well as cities, are corporations created by the laws of the state.”

Of the cause of action in that case, the court said it was one in which “the special provisions should control and limit the general rule”.

Fostoria v. Fox, 60 Oh St, 340, was a transitory action filed in Hancock County against the City of Fostoria which had its seat of government in Seneca County, although some of its territory was in Hancock County. Summons was issued to and served by the sheriff of Seneca County on the City of Fostoria. There being no defendant served in Hancock County, the Supreme Court held the lower courts in error in not granting the motion to quash the summons.

Neither of these decisions directly decides this case or answers the question whether a corporation alluded to in §11372 GC, could be a municipal corporation.

The venue and process statutes in the code of civil procedure in Oklahoma are almost identical with those in Ohio. In Oklahoma City v. District Court, 168 Okla., 235, 32 Pac. 2nd, 318, 93 A. L. R., 489, that court was dealing with the then section 112 of the civil code of that state, which provided for the venue of actions “against a corporation created by the laws of this state”. The court expressly decided that a municipal corporation was “a corporation” within the meaning of that section. This decision was followed by that court in Oklahoma City v. Rose, 176 Okla. 607, 56 Pac. 2nd, 775.

The venue of the case at bar was defined by §11272 GC, and lay only in Trumbull County, and the court did not err when it granted the motion of the City of Niles to quash the summons, and its order will be affirmed.

Judgment affirmed. Exc. Order See Journal.

SKEEL, PJ, HURD, J, concur.


author: By WISEMAN, J. By THE COURT:

text:
    NICKERSON, Plaintiff-Appellee, v. NICKERSON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2027.
    Decided April 9, 1949.

      Irvin Carl Delscamp, Dayton, for plaintiff-appellee.
    Gus W. Byttner, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, J.

This is an appeal on law from an order of the Common Pleas Court of Montgomery County, Ohio, overruling a motion to vacate a default judgment rendered in a partition suit. Several grounds of error are assigned.

The principal question raised is whether the defendant-appellant had been served with summons in the action. A period of eighteen months elapsed from the time the action was filed until the property was sold. After sale and confirmation thereof, the appellant filed his motion to vacate the judgment.

There was a clear conflict in the testimony. The appellant contends that the summons had not been served upon him. The return of service shows that he was served personally. When the return is regular on its face there is a presumption in favor of valid service. 32 O. Jur. Section 94, page 483. This presumption must stand until overcome by proof showing the contrary.

The deputy sheriff, who made the service, testified that he knew the appellant and served the appellant personally on the date stated in the return. Whether the deputy making the service had actually signed the return on the day service was made or on a later date is immaterial in view of the provisions of §11363 GC which authorizes the court to amend any process or correct a mistake in the return, before or after judgment, in the furtherance of justice. See, Paulin v. Sparrow, 91 Oh St 279, 287.

In determining whether the appellant had been legally served with summons the trial court was the sole judge of the credibility of the witnesses and the weight to be attached to their testimony. It was within the province of the trial court to believe the evidence presented by the appellee and disbelieve the evidence presented by the appellant. The trial court found that personal service had been made on the appellant. The several orders made by the court, of which appellant complains, conform to such finding. This court can not find from the record that the judgment is not properly supported by the evidence. Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

MILLER, PJ, and HORNBECK, J, concur.

ON APPLICATION FOR REHEARING

No. 2027. Decided May 13, 1949.

By THE COURT:

Submitted on application of defendant-appellant for rehearing and motion of plaintiff-appellee to strike said application from the files on the ground that there is no provision under the Rules of Court effective January 1, 1949, permitting a rehearing or the filing of an application for rehearing.

Within ten days after the decision in this case was announced appellant filed his application for rehearing in the office of the Clerk of Courts. Under a former rule of this Court (Rule XI) applications for rehearing were recognized. It is quite evident that appellant has attempted to follow the procedure under the former rule which has been superseded and repealed effective January 1, 1949. There was no provision in the former rules, nor is there in the present rules, for filing an application for rehearing in the cause in the office of the Clerk of Courts. A motion to strike such application from the files is appropriately filed.

While the present Rules of Court do not provide for the filing of an application for a rehearing, such application, if presented, will be given such recognition as the Court deems proper. If a vital question is raised which would require a different decision by the Court, the Court will give due recognition to such application. If the application is without merit, the Court will summarily deny the application or ignore it entirely since no provision is made for a rehearing. Such application should not be filed with a Clerk of Court, but should be presented to the presiding judge of this court.

In the instant case the application fails to present any matter which was not formerly considered by the Court. Appellant contends that the Court did not pass upon all errors assigned as it is required to do by §12223-21 GC. The nature of the question raised warrants a brief discussion.

In arriving at its conclusion all errors assigned were considered. The Court found that the errors assigned were, not well made and affirmed the judgment. While the provision in §12223-21 GC, which provides that “all errors assigned shall be passed upon by the Court,” is mandatory, sufficient compliance with this provision is shown where the Court finds that there is no error in the record prejudicial to the rights of the appellant and affirms the judgment; such finding being tantamount to overruling each and every error assigned, specific reference to the errors assigned by designated number not being required. In Re Wysong, 30 Abs 316.

The motion to strike the application for rehearing from the files is hereby sustained. Counsel may draw the proper entry.

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


author: By WISEMAN, PJ.

text:
    STATE, ex rel. DICKMAN, etc., Plaintiff-Appellant, v. DEFENBACHER, et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4199.
    Decided November 18, 1948.
    Jerome Goldman, Albert M. Freiberg, Cincinnati, for plaintiff-appellant.
    Hugh S. Jenkins, Atty. Geni., Joseph S. Gill, Asst. Atty. Geni., Paul M. Herbert, Columbus, for defendants-appellees.
   OPINION

By WISEMAN, PJ.

This is an appeal on questions of law and fact from the Common Pleas Court of Franklin County, Ohio, which sustained a motion of defendants-appellees for a judgment on the pleadings.

Plaintiff-appellant, a taxpayer, brought this action on behalf of himself and other taxpayers of the State of Ohio to enjoin the defendants-appellees, state officials, from paying certain veterans’ organizations money appropriated to them by the 97th General Assembly. On motion the named organizations were made parties defendant. A general demurrer to the original petition being sustained, the appellant filed an amended petition. The defendants-appellees filed an answer in the nature of a general denial. When the matter came on for hearing defendants-appellees moved for judgment on the pleadings. The motion was sustained and the amended petition dismissed. From this order this appeal is taken.

It is stipulated that this Court first determine whether the Court below was correct in sustaining the motion for judgment on the pleadings.

Since the defendants’ answer was in the nature of a general denial, the motion for judgment on the pleadings raised the same question as would have been raised by general demurrer to the amended petition, to wit: Does the petition state a cause of action?

In his amended petition plaintiff alleges that,

“The Ohio General Assembly during the session of the 97th Ohio General Assembly, passed a general appropriation bill for the biennium beginning January 1, 1947, and ending December 31st, 1948, * * * that said appropriation bill included, among appropriations made by it to be paid from public funds and moneys of the State of Ohio, the following appropriations :
“Headquarters Grand Army of the Republic $ 7085.00
United Spanish War Veterans 24000.00
American Legion of Ohio 107000.00
83d Division A. E. F. Veterans Association 1000.00
Veterans of Foreign Wars 73000.00
Ohio Rainbow Division 5000.00
37th Division A. E. F. Veterans Association 14800.00
Disabled American Veterans of World War 75000.00
Department of Army and Navy Union 2500.00
Department of American Veterans of World War II 11250.00”

Plaintiff alleges that all the organizations for which said appropriations were made “are organizations or associations of private individuals, subject to solely private control of the members, and existing for the private benefit of the members”. It is further alleged that “all funds from said appropriation will, if paid, be used by said organizations for purposes of obtaining additional members in said organizations, to promote private political ideas and programs of certain members of said organizations, to provide private benefits and entertainment for the members of said organizations, and are not, and will not be used except for the private benefit of private individuals”. Plaintiff further alleges that “said organizations are purely private organizations with private purposes only; that all funds obtained by said organizations are devoted to solely private purposes and not for public purposes in any manner whatever”. Plaintiff further says that “neither the State of Ohio nor any public official exercises any control or makes any audit”; and that “said funds were appropriated to said private organizations or associations of private individuals simply as contributions”. Plaintiff further says that “by reason of the foregoing, the appropriations and payment of state funds for and to said organizations as provided in said appropriation bill aforesaid would constitute an appropriation and expenditure of public funds for private purposes, and as such would be contrary to the constitution and fundamental laws of the State of Ohio.”

The gist of the contention of the plaintiff is that the organizations for whose benefit the appropriations were made are associations of private individuals, subject to private control and existing for the private benefit of their members, and that the funds appropriated will be used by the organizations for their own private purposes. The claim of the plaintiff is that the General Assembly had no power to make such appropriations and that the payment of the appropriated funds should be enjoined.

The defendants-appellees contend that the power to make currenj; appropriations from current revenues is vested in the General Assembly without limitation. The plaintiff claims that the power is limited. No specific constitutional limitation is cited but it is claimed that a limitation is implied. To support this contention plaintiff cites cases which have held invalid taxing statutes which purported to earmark future revenue for the benefit of said individuals or groups. Article VIII, Section 4 of the Ohio Constitution is cited which forbids extending the credit of the state in favor of private enterprises. Under Article II, Section 22, the General Assembly may not make an appropriation effective for more than two years. No General Assembly can create obligations which extend beyond its own life. There is no constitutional limitation on the power of the General Assembly to make current appropriations from current revenue funds.

All political power is inherent in the people. Article I, Section 2. Ohio Constitution. All power not delegated remains with the people. Article I, Section 20, Ohio Constitution. The legislative power of the state is vested in the General Assembly. Article II, Section 1, Ohio Constitution. The power to make appropriations, being a legislative function, is vested in the General Assembly, subject only to the limitations expressly set out either in the Ohio or the United States Constitution Baker v. The City of Cincinnati, 11 Oh St 534, 542; Williams v. Scudder, 102 Oh St 305, 307; Ostrander v. Preece, 129 Oh St 625, 628. We find no limitation in either constitution on the power of the General Assembly to make current appropriations out of current revenues. Article VIII, Section 4 of the Ohio Constitution which forbids extending credit of the state in favor of private enterprises has no application to the situation presented in the instant case. In the case of the Auditor of Lucas County v. State, ex rel. Boyles, 75 Oh St 114, cited by appellant as the leading case in support of the contention that the General Assembly was without power and authority to make the appropriations in question, the constitutionality of an act which in effect pledged the credit of the state to make payment to blind persons for an indefinite period in the future, was the question in issue. The Court held the act to be unconstitutional. The case at bar is distinguishable from the Boyles case on the facts. In the instant case current appropriations are made from current revenue. The decision in the Boyles case rested on the case of Loan Association v. Topeka, 20 Wallace, 655, wherein the United States Supreme Court held unconstitutional a Kansas statute which authorized municipalities to issue bonds in favor of private manufacturers on the ground that a tax levied to pay the bonds would take property without due process of law. Other cases cited by appellant (State, ex rel. Walton v. Edmondson, 80 Oh St 351; Miller v. Korns, 107 Oh St 287; Cleveland, et al. v. Ruple, 130 Oh St 465) fall in the same category.

This precise question has never been decided by the reviewing courts of Ohio. The Court has experienced no little difficulty in arriving at its conclusion. We commend counsel for the preparation and submission of helpful briefs.

In our judgment the amended petition does not contain allegations sufficient to constitute a cause of action. Motion of defendants for judgment on the pleadings is hereby sustained.

MILLER and HORNBECK, JJ, concur.


author: By HILDEBRANT, J.: ROSS, PJ,

text:
    ROGERS, Plaintiff-Appellant, v. ALLIS CHALMERS MFG. CO., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County,
    No. 7063.
    Decided May 16, 1949.

      Joseph F. Kinneary, Timothy S. Hogan, Cincinnati, for plaintiff-appellant.
    Sanford A. Headley, James G. Headley, Cincinnati, for defendant-appellee.
   OPINION

By HILDEBRANT, J.:

Plaintiff sued for damages for injuries sustained on being struck in the eye by a golf ball, which he alleges was negligently driven by an employee of defendant Company, acting within the scope of his employment.

The trial court sustained defendant’s motion for a directed verdict based on the opening statement of plaintiff’s counsel, after opportunity given to amplify, add to, explain, and qualify the same.

The propriety of such a ruling in a proper case is established in Cornell v. Morrison, 87 Oh St, 215, Cincinnati Gas & E. Co. v. Archdeacon, 80 Oh St, 27. See, also: 39 O. Jur., 883, Section 225, et seq.

By the motion, and for its purposes, the defendant admitted the truth of all the statements plaintiff proposed to establish by evidence.

On giving plaintiff’s counsel opportunity to enlarge upon his opening statement, the court directed that it be confined to the question of whether or not the employee involved was acting within the scope of his employment, so as to render defendant Company responsible for his acts.

Plaintiff stated that his proof would show that the Norwood Plant of the defendant company — a nationally advertised heavy industry, manufacturing heavy machinery and equipment appropriated a sum of money on a yearly basis with which to foster and provide athletic and recreational activities and games for its employees, both intramural and in competition with the teams of other industries; that it employed an athlete director, who, at the request of the Norwood Y. M. C. A., whose stated purpose was to improve industrial relations, paid the Y. M. C. A. the sum of $25.00, and agreed to enter a Company team in an industrial golf league competing against similar recruited teams after working hours; that the Captain of the Norwood Plant team asked one Haas if he would play thereon, which he voluntarily agreed to do; that the green’s fees were paid for the players out of the funds appropriated by the Norwood Plant, as stated above; the Norwood Plant also furnished its employees with a T shirt, upon which the name of the defendant company appeared; that after working hours, at about 5:30, P. M., on the day in question, plaintiff was on the Avon Fields Public Golf Course and drove his ball from the 13th tee in a southerly direction toward the green and had approached his drive which came to rest on the left edge of the fairway, and was in the act of selecting a club from the bag which he carried himself in order to make a second shot toward the 13th green; defendant’s employee Haas drove his ball from the 14th tee, which hole runs south to north, and whose fairway parallels that of the 13th; he gave no notice of his intention to drive by calling out the warning signal of the game “Fore”; his drive hooked to the left after he hit the ball and on noticing its direction toward plaintiff, the cry of “Fore” was given; plaintiff looked up in the direction from which the cry came and was struck in the eye by the ball; no statement appears in the record as to the distance between plaintiff and Haas, except that a blow such as that hit by Haas will drive a ball at the rate of 110 to 120 miles per hour at its maximum and would traverse the distance separating the two players in something-in the neighborhood of two seconds.

Plaintiff contends under that statement the defendant company was engaged in playing golf through its agent and employee. Haas, so that the doctrine of respondeat superior applies to hold defendant company liable for the negligence of Haas.

Defendant contends no cause of action has been stated against it, since Haas at the time and place was not acting within the scope of his employment, hence, the doctrine of respondeat superior does not apply.

Plaintiff relies upon Ott v. Industrial Comm., 83 Oh Ap, 13, and other Workmen’s Compensation cases. Such cases do not apply.

The right to participate in the Workmen’s Compensation Fund is wholly statutory, and is in no way dependent upon the principles of the common law, whereby a master or principal is sought to be held liable for the torts of a servant or agent upon application of the doctrine of respondeat superior. In the Ott case, this Court merely found from the facts that there was sufficient relationship in the activity of the deceased at the time of his death to his employment to justify the conclusion that claimant was entitled to participate in the Fund under the Constitution, statutes, and rules of the Commission. Under the liberal construction required of Workmen’s Compensation Laws, a mere causal connection is held to be sufficient to satisfy the statutory requirement that the injury be received iri the course of and arise out of the employment. And no inquiry is required or made as to whether or not the injured workman at the time and place of injury was actually acting within the scope of his employment, as required to fix liability under the doctrine of respondeat superior. In such cases where inquiry as to th,e scope of employment is made, it is not for the purpose of determining that question in the first instance, but only to determine the question of causal connection.

In Tarlecka v. Morgan, 125 Oh St, 319, it is stated in the fourth paragraph of the syllabus:

“The expression ‘scope of employment’ cannot be accurately defined, because it is a question of fact to be determined according to the peculiar facts of each case.”

As to the general principles upon which liability rests from a wealth of text and case material, we quote 26 O. Jur, 620, section 598:

“The liability of one person for damages arising from the negligence or misfeasance of another, on the principle of respondeat superior, is confined in its application to the relation of master and servant, or of principal and agent. In order, then, to permit a recovery, in such case, it must be shown that the relation between the parties sought to be held liable and the person doing the act complained of was that of master and servant, or of principal and agent, in reference to the very act complained of. The maxim ‘respondeat superior’ does not apply where this relation does not exist. The direct coincidence and coexistence of the rule of respondeat superior with the relation to which it belongs is an unvarying test of its application.”

Section 599 of the same volume states:

“* * * The mere fact that one is employed by another does not render the latter liable for all acts of the former. The relationship and the master’s liability depends upon whether the person who did the injury complained of was acting under his employer’s control or direction, in doing the work from which the injury resulted. If the person so acted, he is a servant and the master is responsible; otherwise, there is no such relation and he and not the master, is liable for the injury.”

The fourth paragraph of the syllabus in Clark v. Fry, 8 Oh St, 358, states:

“The rule of respondeat superior, as its terms import, only arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is coextensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise over the acts of his subordinates.”

Section 614 in 26 O. Jur, p. 633, states:

“The master is not liable for the acts of his servant done outside of his employment. A railroad company whose line crosses a highway is under no obligation to remove from the highway an obstruction placed upon it, at a crossing, by one of its brakemen, without authority of the company, and while acting outside the scope of his employment, even though he did it during the existence of the employment. In the customary legal phraseology, to make the master responsible for the acts of his servant, the act must be done in the scope or course of the servant’s employment, that is, under the express or implied authority of the master. Beyond the scope of his employment, the servant is as much a stranger to the master as any third person.
“The master is not liable for the act unless it is done for the purpose, and as a means, of doing what the servant is employed to do, or unless it is part of an actual duty connected with his employment. If an employee goes outside of his work and employment to commit an act of violence, which is not necessary in the performance of his work, the employer is not liable.”

And it is stated in Section 615 of the same volume:

“There is a marked distinction between an act done by the servant during his employment, and an act done within the scope of his employment. The master has a right to assign duties to his servants, and no assumption of duties not assigned will bring those duties within the scope of his employment as defined by the master, and when an act is not within the scope of a servant’s employment, it is manifest that it cannot be within either the express or implied authorization of the master.”

35 Am. Jur., 973, Section 543, et seq., wherein it is stated: at 974: “Power to control the acts of the wrongdoer, must, of course, have been vested in the defendant at the time of the injurious occurrence.”

Whatever its motive and whatever benefit the Norwood Plant conceived flowed to it. as the result of sponsoring and financing an organized recreational plan for its employees, it seems clear that any participating employee while so engaged would not be acting within the scope of the employment for which he was paid and by which he earned his daily bread. Neither do we consider Haas the agent of the Company in voluntarily playing golf as a form of recreation for himself. He was asked to participate, not ordered so to do, nor could he have been so ordered; he could have refused to play at all, or to drive off the 14th tee after starting to play without being amenable to discipline for violating any of the terms of his employment; the defendant had no control over his conduct on the golf course at all. While identified in some manner with the defendant company by his T shirt, proof of that fact created no inference he was employed to play golf and was at that time, which was after the regular working hours, acting within the scope of his employment. The rules of proof set out in White Oak Coal Co. v. Rivoux, Admr., 88 Oh St, 18; Sobolovitz v. Lubric Oil Co., 107 Oh St, 204; and Halkias v. Wilkoff Co., 141 Oh St, 139, are applicable and dispositive of this case.

Plaintiff relies on Lake City Malleable Co. v. Cavanaugh, (unreported — Cuyahoga County Court of Appeals, 1943). There being no opinion and no official report of that case, this Court cannot comment thereon, nor be bound in any manner by it. We distinguish the case of Ackerson v. Jennings Co., 140 Atl. 760 (Conn.) on its facts. The cited Restatement of the Law of Agency, pars. 212, 228, 236, do not seem to apply, but rather reference is made to Par. I, p. 7, Par. 2, P. 11 therein.

The judgment is affirmed.

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

ROSS, PJ, dissents in separate memorandum.

ROSS, PJ,

(dissenting):

Judgment was rendered for the defendant upon the opening statement of counsel for plaintiff, upon a verdict instructed by the court rendered upon the motion of the defendant for same.

The plaintiff was given the opportunity to amplify his statement upon one issue only, to-wit, that the liability of the defendant was predicated upon the rule of respondeat superior, or as the court stated, the scope of employment or agency.

Such a motion so directed partakes much of the character of a demurrer. In effect, it admits the stated allegations of proposed proof are true, but denies any legal efficacy of such facts to sustain the alleged cause of action of plaintiff.

In Neckel v. Fox, 110 Oh St, 150, at page 152, it is stated in a per curiam opinion: “This court is not disposed to give too rigid a construction to the terms employed in the statement by counsel for plaintiff.”

In that case, the Supreme Court reviewed a judgment of the Court of Appeals affirming a judgment on the pleadings and opening statement of counsel, and further stated the facts were too “meagerly stated and were very uncertain in vital respects.”

That case involved statements of a plaintiff’s counsel concerning the liability of a landlord for injuries to a visitor to a tenant. Plaintiff’s counsel stated that the defendant was “in full possession of said premises” and retained possession to make repairs The similarity in general quality of these statements to those herein involved will be later considered.

In Laundry Co. v. Whitmore, 92 Oh St, 44, the Supreme Court also reversed a judgment rendered on the opening statement of counsel.

See, also: 39 O. Jur., p. 883, Trial, Section 225. In Section 227, page 886, Id., it is stated:

“In ruling on a motion to direct a verdict for the defendant on the opening statement of the plaintiff’s counsel, the trial court must interpret the statement most favorably to the plaintiff, or, in the language of some cases, must give it the most liberal construction possible in favor of the plaintiff. The truthfulness of the facts stated therein is to be assumed, and a reasonable and liberal construction is to be given the statement so that it may be allowed to stand, in order that the well-known principle that every litigant should have his day in court may be vindicated. To this end the court is required to take into consideration the admissions made in the pleadings in regard to that part of the statement favoring the plaintiff, even though inconsistent with other parts of the statement, and to give the plaintiff the benefit of any reasonable inferences in his favor which are warranted by, or may be drawn from, the facts as stated. Nothing should be taken against the party making the statement.”

This Court, in an opinion by Judge Hildebrant, quoted with approval the statement made in 2 O. Jur., p. 1061, Appeal and Error, Section 832, in the case of Wainscott v. Young, 74 Oh Ap, 463, at page 465:

“In 2 O. Jur., 1061, Section 832, it is stated:
“ ‘It is reversible error for the court to enter judgment for the defendant because of admissions made by plaintiff’s attorney in opening the case to the jury, where such admissions do not include every fact necessary to defeat the plaintiff; or to direct a verdict for the defendant because of the insufficiency of the opening statement of plaintiff’s counsel, if such statement is at least as broad as the petition and the petition states a good cause of action; or, if, giving such statement a reasonable and liberal interpretation, it is sufficient to entitle the plaintiff to offer proof of his cause of action and no motion has been made to make either the statement or the petition more clear and definite.’ ”

Judgment on the opening statement was reversed.

To the same effect, see: Reitenbach v. Botzum Theatres Co., 18 Abs, 310; Hayes v. Barnes, 32 Abs, 274; Rubin v. Rainbo Baking Co., 36 Abs, 476 (a decision by this Court); Realty Co. v. Rosen, et al., 47 Abs, 316.

An examination of these authorities indicates the extreme reluctance of courts to sustain such motions and that only where it clearly appears proof of a cause of action could not be included within the fullest extent of the allegations of intent to prove, will judgment be rendered adversely to the party making the opening statement.

It will be noted also that the party is not required to make such opening statement, but may do so. Sec. 11420-1 (2), GC.

An opening statement cannot be intended to be a full development of all the evidence later to be introduced by a party. Its purpose is to outline to the jury the general conception of the party’s case.

It is evidence, not statements, which sustain a cause of action. Naturally, if counsel make admissions which preclude recovery, a different situation is presented. The penalty of an instructed verdict should be limited to affirmative statements prejudicial to a party rather than to matters of mere omission.

The statement from Emmerson v. Weeks, 58 Cal., 382, quoted in Cornell v. Morrison, 87 Oh St, 215, at page 222, appears to announce the better rule:

“In the case of Emmerson v. Weeks, 58 Cal., 382, this language is used: Tt would be much better not to non-suit on an opening statement, unless it is clearly made and it is plainly evident therefrom that no case can be made out.’ ”

In the petition it is alleged that “The defendant in its business of advertising its name and products and in the course of maintaining the health and -good will of its employees engages in, through its officers, agents and employees games of golf and other athletic contests.” It is further alleged that the plaintiff while playing a game of golf was struck by a ball negligently driven by an employee of defendant also playing golf upon the same course, causing certain injuries alleged. It is further alleged that such negligence consisted in a violation of the known rules of the game. The plaintiff states in his petition, “In failing to call ‘Fore’ which is a word of general warning used in the game.”

The defendant in an amended answer admitted it advertised its products, denied that it was engaged in games of golf. Defendant admitted plaintiff was engaged in playing golf and was injured. The amended answer also contains allegations of contributory negligence and assumption of risk. A reply was filed denying contributory negligence and that plaintiff assumed the risk of the defendant’s negligence.

Counsel for plaintiff in his opening statement first outlined the general character of the game of golf and the manner in which it was played. Calling attention to the custom of the game requiring a warning signal to be given prior to driving a ball, and noting that none in the instant case was given until after the ball was struck.

A diagram upon a blackboard was used which is not brought before the court by copy or otherwise. Counsel then described how the plaintiff, proceeding in one fairway, was struck by the ball driven by defendant’s employee who was proceeding down a’ parallel fairway. Counsel then proceeded to explain why the action was brought against the defendant corporation instead of its employee. He stated “Mr. Haas was an employee of some duration of The Allis-Chalmers Mfg. Co., and that Company had seen fit, so the evidence will disclose, to engage in, among other activities, the promoting and sponsoring and, if you please, supervising of athletics to be engaged in by its employees.” (Emphasis ours) Counsel further stated:

“There is a fine institution in Norwood, the Norwood Y. M. C. A., which promoted an industrial golf league in the spring of 1947, and it wrote to the industries in Norwood, including among those industries the Allis Chalmers Manufacturing Company, and it said this: We are interested in fostering industrial relations and if the Allis Chalmers Manufacturing Company cares to participate will you tell us what you want to participate in, when you can participate, and will you pay us an entrance fee to cover the type of thing that anybody runs into promoting a league, and the Allis Chalmers Manufacturing company said: Yes, we are interested in participating and we are going to participate in playing golf at five o’clock and here is our $25 entrance fee. And thereupon the Allis Chalmers Manufacturing Company entered into that league a golf team which played under the sweater and under the banner of the Allis Chalmers Manufacturing Company, the sweaters — the ‘T’ shirts, if you please — with the Allis Chalmers name on them were furnished their own employees who cared to participate in them. Further than that, the Allis Chalmers Manufacturing Company paid the green fees for their own team. I might say that on almost any public golf course there is a given charge, to play. There is a charge at Avon Fields and there was a charge to Mr. Haas playing on this golf course on this Monday afternoon, and that charge was paid for out of the treasury, out of the funds and the money of the Allis Chalmers Manufacturing Company. __ The name of that golf team found prominence on the bulletin boards at the golf course and prominence in the newspapers of this community as that particular team, and at the end of the year the company through its supervisor of athletics, who supervises all sorts of athletics, including this, promoted somewhat of a banquet at which they award letters or sweaters and prizes, all bearing the name of the Allis Chalmers Company. And so the second issue which the plaintiff, we feel and hope, will sustain to you is that Mr. Haas in playing golf that afternoon was on or about the business of his employer, the Allis Chalmers Manufacturing Company, and that is why this suit is against this defendant.”

Counsel then described plaintiff’s injuries, and at this point the defendant made a motion for an instructed verdict. After some discussion, counsel for plaintiff again resumed his statement:—

“The directions from the 13th tee to the 13th green is north to south and from the 14th tee to the 14th green is south to north, and the fairways of said holes border on the same rough grass. The plaintiff was generally in front of and a little to the left of the intended line of flight of Haas’ ball—
“The Court: How does that lead up to the question of agency?
“Mr. Hogan: I am a little afraid I didn’t go into negligence very much.
“The Court: Don’t bother about that.
“Mr. Hogan: If counsel will so agree.
“The Court: You have stated enough on the subject of negligence. Confine it to the relationship existing between the man who hit the ball and the company at the time the accident occurred, whether or not at that time he was in the scope of his employment. In other words, you establish agency.
“Mr Hogan: I don’t want to get tripped up on some side point, Judge.
“To go on, Haas was a full-time employee, in the sense of an eight-hour day, five day week, of the Allis Chalmers Manufacturing Company. He was asked in the spring of 1947 whether or not he cared to play golf on a team in the Y. M. C. A. Industrial League at five o’clock.
“The Court: Asked by whom?
“Mr. Hogan: .He was asked by Robert Barbeau, who was the captain of the team, and Barbeau had been asked to make up the team by William Kellar, who was an employee of the Allis Chalmers Manufacturing Company with the title of Supervisor of Athletics of the Norwood Works of Allis Chalmers.
“Mr. Headley, Sr.: Do you mind if I interrupt you?
“Mr. Hogan: No.
“Mr. Headley, Sr.: You can’t prove there was any supervisor of athletics out there, if you want to be right about it.
“Mr. Hogan: Kellar will say that is what his title is; that is what he is going to say.
“Mr. Headley, Sr.: That’s not the case but he has a right to say that in opening statement.
“Mr Hogan: The Allis Chalmers Company Norwood Works-had a section or department or some unit in charge of supervising and promoting an athletic program for the- employees of the company. Kellar, in 1947, was in charge of this. In January or February, 1947, he submitted an athletic budget to the higherups of the company and was given an allowance of something in the neighborhood of three thousand dollars to be spent by him in promoting athletic activity among the employees of the company. This activity took two forms, industrial and intramural; the former meaning that teams under the company name were entered in leagues to combat with teams playing under other company names at places not owned by the company, and the latter strictly intramural and on the company premises.
“The Court: What you mean to say is that the other companies participating in the league were also- industrial firms.
“Mr Hogan: Yes, your Honor'.
“The Allis Chalmers Company spent twenty-five dollars of its own money to enter a team in the Norwood ‘Y’ Industrial League after the company had received some correspondence from the Norwood ‘Y’ which asked: ‘Could your industry participate at five p. m. in men’s industrial golf?’ The letter from the Norwood ‘Y’ which contained this question was addressed to the Allis Chalmers Company, and after the Allis Chalmers Company got it, its athletic director, Kellar, saw to it that a company check for the entrance fee was sent in to the Norwood ‘Y’, and Kellar also asked Barbeau to captain the team. The Allis Chalmers Company paid the greens fees of this team every Monday. Haas was a regular member of this team which played in the Norwood ‘Y’ league under the name of Allis Chalmers Company and he was playing when the occurrence took place. In addition he was wearing a T shirt bearing the company name which had been furnished to him by Kelllar and which had been paid for by Allis Chalmers Company. After the accident Haas promptly reported it to Kellar.”

Upon which, the Court, without any renewal of the motion by defendant, instructed a verdict for the defendant. These statements, construed as is required by the rules set forth in the authorities hereinbefore noted, are sufficiently broad to include a claim of proof that the defendant requested its employee to play golf for it, and that in doing so, such employee negligently caused the plaintiff’s injuries, by violating the rules and customs of the game of golf.

The fact that the employee was asked “whether or not” he would play instead of being ordered to play is sufficient. Compensation for such playing at the request of defendant could have no bearing on liability. Gratuitous employment may develop responsibility. It is stated he did so play upon the defendant’s team after such request.

The evidence probably would show the several incidents of this undertaking and might or might not prove liability in the defendant. Strictly construed, the statements of counsel should have been amplified to have definitely detailed the nature of the entire arrangement. This defect, if it is a defect is one of omission, not an affirmative prejudicial admission, preventing recovery.

The allegations were sufficiently broad to include facts which would have justified responsibility in the defendant.

A more serious problem presents itself involving the question of admission of assumption of risk.

It will be remembered, however, that counsel’s attempt to amplify this phase of liability was stopped by the Court, who stated that further statement would be limited to the elements of scope of employment and agency. What counsel might have said is left to speculation. It is to be noted also that a participant in a game of sport is only presumed to assume the normal risks incident to such sport. He has a right to presume that the game will be played according to rules which form the custom applicable to the game. Counsel had alleged and stated That certain customs and rules of the game of golf were not followed by the employee of the defendant. Suppose that a rule of the game required a player to wait until a player in advance had driven his second ball before the following player could drive off a tee, and by the violation of such rule the advance player was struck. Could it be said the injured player assumed *the violation of such rule?

It is the normal, reasonable, naturally to be anticipated incidents of a game that one engaged therein, is required to foresee, and if it can be shown that a custom or rule of the game of golf requires a player under the circumstances here prevailing to call out before driving, thus establishing a recognized standard of care, and a failure so to do was the proximate cause of the plaintiff’s injuries, it may well be that a jury might properly conclude that such violation of the rules, and failure to exercise such standard of care, so causing injury, constituted actionable negligence.

In Ivory v. Cincinnati Baseball Club Co., 62 Oh Ap, 514, at page 517 of the opinion it is stated:

“It is a universal principle that when two persons come into such nearness to one another that they, and the agencies under their control, may cause injury to one another a duty devolves upon them to so conduct themselves and so manage the agencies under their control that neither will be injured by failure of the other to conform to the standard of duty, the exact extent of the duty depending upon the attending circumstances.”

From the statements made by plaintiff’s counsel it appears that a “standard of care” in the playing of golf required a player to call “Fore” before playing the ball. This is alleged in the petition and denied in the answer.

Factual questions are thus involved requiring action by a jury.

In Cincinnati Baseball Club v. Eno, 112 Oh St, 175, the court draws a distinction between a game of baseball being played in the normal manner and batting practice between games, holding that a jury question is presented whether a spectator assumes risk of injury from the latter situation and as a matter of law assumes risk of a game being played according to national custom.

To the same effect is Douglas v. Converse, 248 Pa. 232, involving the playing of a game of polo.

The fact that the plaintiff is in the cited cases a spectator and not a participant in the games is not overlooked, but it would seem the principle involved is the same, in that in each case — the injured person is only held to assume those risks which are incident to the employment of the standard of care existing in the enterprise. In the one case, the plaintiff assumes the risk of a normal game of baseball or polo, in the instant case, the player assumes the risk of a normal game of golf, played according to the rules and customs of the game and pursuant to the standard of care involved.

Appellee cites the case of Benjamin v. Nernberg, 102 Pa. Superior Ct., 471. In the opinion in that case at page 475, it is stated:

“There was no duty, under the facts of this case, on defendant to warn plaintiff of his intention to play. We cannot see that defendant was at fault or that he disregarded any rule or custom of the game.” (Emphasis ours.)

In this cited case, the plaintiff was struck in the face while putting on a green by a ball driven by a player on another fairway. Later in the opinion, the Court say:

“Having already decided that there was no duty on defendant to warn plaintiff of the intended play, it follows that, if plaintiff was struck by a ball driven by defendant, the plaintiff had assumed, as a matter of law, the risk of injury resulting from his own participation in the game he and all the others were then playing.”

In the cited case, as in the instant case, the claim that the rules of the game of golf required warning previous to driving the ball was denied. Certainly, neither the trial court nor this court can take judicial notice of the rules and customs or the standards of care of the game of golf. Such matter would require evidence as to the standard of care required. Englehardt v. Philipps, 136 Oh St, 73.

In Toohey v. Webster, 97 N. J. Law Rep., 545, liability was imposed upon a player who injured a caddy employed by another player, where customs of the game were ignored by the defendant player. This case is said not to be in point in Benjamin v. Nernberg, supra. To the same effect as the last case is the decision of this Court in Gardner v. Heldman, 82 Oh Ap 1.

For the reason that the statements of counsel for plaintiff were broad enough to include proof showing that an employee of the defendant, at its request, acting for it, and within the scope of his employment or agency caused the plaintiff injury, and because the court unduly limited such statement upon the issue of contributory negligence or assumption of risk, and because in such statement, as was permitted, the plaintiff was not shown to be guilty of contributory negligence or to have assumed the risk causing his injury, it is my opinion that the judgment of the trial court should be reversed and the cause remanded for further proceedings.


text:
    PACE, Plaintiff-Appellee, v. BUCK, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4069.
    Decided February 7, 1949.
    Lawrence A. Ramey, Columbus, for plaintiff-appellee.
    Joseph L. Stanton, Columbus, for defendant-appellant.
   OPINION

By WISEMAN, PJ.

This is an appeal on law from the Municipal Court of Columbus which rendered a judgment in favor of the plaintiff in an action in forcible entry and detainer.

On February 4, 1946, the plaintiff obtained an order from the Office of Price Administration, Division of Rent Control, stating that an action to evict the defendant shall not be commenced sooner than three months after February 4, 1946. The three month period expired on May 4, 1946. The defendant had paid her rent up to May 1, 1946. On April 29, 1946, the plaintiff received from the defendant a money order for $30.00 for the payment of rent for the month of May. On May 7, 1946, the statutory legal notice to leave the premises was served on the defendant. The action was filed on May 20, 1946. The case was tried June 10, 1946.

The defendant-appellant has filed five separate grounds of error which raise two questions: First, whether the facts show an acceptance of rent by the plaintiff for the month of May; and, second, whether the Court erred in refusing to allow the defendant to introduce evidence in regard to an oral contract of sale.

If the plaintiff accepted the money order for $30.00 for the payment of rent for the month of May, then, obviously, the action could not be maintained. The record shows that when the plaintiff received the money order she turned it over to her attorney who told her that he would mail it to the defendant stating that they could not accept the money order as rent. The plaintiff’s attorney retained it in his files and failed to notify the defendant that the order was not accepted in payment of rent. The retention of the money order by plaintiff’s attorney constituted a retention by the plaintiff. The evidence further shows that the defendant sent a second money order which was received by the plaintiff for the payment of rent for the month of June. The plaintiff returned this money order to the defendant by registered mail. The money order dated April 29, was not introduced into evidence. The plaintiff now contends that it was held for evidentiary purposes. However, the record does not support this contention. The plaintiff further contends that this money order was tendered to the defendant at the trial but, again, the record does not support this contention. During the cross-examination of the plaintiff she was questioned relative to the disposition of this money order. The record shows that at this point counsel for the plaintiff stated:

“As to that matter, I have it here and I’ll tender it into court I found it on Thursday when you and I were talking.”

At the conclusion of the evidence the Court rendered judgment and stated, “$30.00 money order held in court pending litigation”.

The facts in this case do not show that the plaintiff or her attorney at any time notified the defendant that the money order would not be accepted in payment of rent; neither was the money order tendered to the defendant on the day of trial. A tender into court of the money order and an order of the Court holding the money order in Court pending litigation does not .constitute a tender to the defendant. The defendant did not get possession or control of the money order and was not permitted to cash it which she would be privileged to do had a sufficient tender been made to her.

Three cases in Ohio are cited: Pillot v. Moss, 72 Oh Ap 492; Booher v. Lowe, 49 Abs 126, 82 Oh Ap 392; Hile v. Besecker, 50 Abs 233, 82 Oh Ap 301. In the Pillot case the Court found that the money orders were held for evidentiary purposes and that the landlord had notified the tenant that said money orders would not be and were not accepted in payment of rent. In the Booher case the Court held that the retention of the money order by the landlord for less than one month and which was tendered back to the tenant on the day of trial did not operate as an acceptance by implication of law or by estoppel. In the Hile case the Court held that the acceptance by the landlord of the money order tendered by the tenant operates as payment of the rent in the absence of any showing that the landlord proposed- to hold the money order for evidentiary purposes or that he informed the tenant that the money order would not be accepted in payment of the rent. The facts in the instant case are similar to the facts in the Hile case. The only distinguishable fact is that in the instant case the landlord tendered the money order into court. In neither case did the landlord tender the money order to the tenant.

We are of the opinion that where the landlord retains a money order received from the tenant in payment of rent and the landlord fails to notify the tenant that the money order was not accepted in payment of rent, or that it was retained for evidentiary purposes, and fails to tender the money order to the tenant on or before the day of trial, the retention of the money order constitutes an acceptance in payment of the rent. It follows that the defendant could not be legally evicted during the term for which rent was paid.

• The defendant contends that the Court erred in not permitting the defendant to present evidence in chief regarding an oral contract for the purchase of said real estate. The record shows an objection was sustained and exceptions noted, but no proffer of testimony was made. In the absence of a proffer of testimony this assignment of error is not well, founded.

Finding error in the record prejudicial to the defendant the judgment is reversed.

MILLER and HORNBECK, JJ, concur.


author: By MATTHEWS, J.:

text:
    STATE ex rel., HOWELL, Relator, v. SCHIELE, Respondent.
    Ohio Appeals, First District, Hamilton County.
    No. 7123.
    Decided July 5, 1949.

      William F. Hopkins, Cincinnati, for Relator.
    Henry M. Bruestle, James W. Farrell, Cincinnati, for Respondent.
   OPINION

By MATTHEWS, J.:

In this action the relator invokes the original jurisdiction of this court in mandamus to compel the respondent, the Treasurer of the City of Cincinnati, to issue to him a license to conduct the calling of a professional bondsman in accordance with Section 722-2 of the municipal ordinances, which reads as follows:

“Any responsible person or firm may obtain from the City Treasurer, a license to do business as a professional bondsman on payment of an annual license fee of one hundred dollars ($100.00) and the furnishing of a surety bond in accordance with the provisions of Section 722-2a. All licenses issued hereunder shall expire on December 31 of the year in which they are issued, provided that, between December 15 and December 31, renewal licenses may be issued for the ensuing year. If a licensee’s surety bond shall for any reason become ineffective, the license shall be suspended and of no effect, unless and until a renewal bond or a new bond shall be furnished in accordance with Section 722-2a.”

By another section of the same ordinance, the city manager is given supervision over professional bondsmen, with power to revoke the license of any one found guilty by him of extortion or dishonesty in connection with such business. Their fees are also prescribed.

By answer, the respondent admitted that he had refused to issue a license and pleaded in justification that the relator did not possess the qualifications imposed as a condition to the issuance of a license in that he was not a responsible person within the meaning of the terms of Section 722-2 of the municipal ordinances.

At the trial it was conceded that the relator had complied with all the conditions for the issuance of a license unless the respondent was justified in refusing on the ground that relator was not a responsible person.

Upon the subject of the relator’s character it was stipulated that on the 12th day of January, 1949, he had been convicted of the offense of making false statements for the purpose of defrauding the United States in violation of Section 72 of Title 18 of the United States Code, and of making false statements under oath for the purpose of obtaining bond in violation of Section 231 of Title 18 of the United States Code, and on the 25th day of June, 1947 he had been convicted of the offense of attempting to evade his income tax, in violation of the United States income tax law. It was also stipulated that he had been convicted twice of the offense of possession of untaxed intoxicating liquor and once of the offense of unlawful possession of intoxicating liquor without a permit.

It also appeared that the relator had been issued a license for the previous year and had deposited $2000.00, as required by the ordinances. At the time the present application for a license was denied seventeen actions were pending on forfeited bonds signed by relator, and that the respondent was holding the deposit against the final disposition of those cases. It was admitted that relator had satisfied all judgments rendered against him on forfeited bonds. Whether, or to what extent, he was cooperative in the apprehension of accused and in securing their appearance was not disclosed.

From this recital of the facts it has become apparent that this is not a case in which an accused person is complaining that he has been denied bail or that excessive bail has been required. Section 9 of Art I of the Ohio Constitution, which provides that all persons shall be bailable by sufficient sureties except for capital offenses where the proof is evidence or the presumption great, and that excessive bail shall not be required has no application.

It is apparent also that this is not a case where the relator is presented as a non-compensated surety on a bail bond in a specific case and his qualifications as a surety on that bond are being weighed and determined, and the claim is made by the accused that the relator’s rejection as a surety would have the effect of depriving him of his liberty without due process of law. Whether that would raise a different issue we are not called upon to determine.

The question presented in this case on the evidence is whether the respondent is under a non-discretionary duty to issue to the relator a license to carry on the calling of a compensated bondsman in civil and criminal courts sitting within the City of Cincinnati.

That the business of acting as a surety for pay upon court bonds, particularly in criminal cases, has a relation to the public safety and welfare we think is too clear for argument or extended citation of supporting precedents at this late date. A cursory examination discloses that in most, if not all, of the states recognition of this relationship has led to regulation of the calling in one form or another. Requiring a permit upon compliance with certain conditions, and supervision by an administrative officer are familiar methods. And so long as the regulation has a reasonable relation to the object to be accomplished and operates uniformly upon all pursuing the calling, it cannot be challenged, with success, as violating constitutional provisions guaranteeing due process of law and equal operation of the law.

Now what is the purpose sought to be accomplished by requiring those charged with crime to give bail as a condition of being given their liberty during the pendency of the proceeding?

While the penalty prescribed is a sum of money for violation of the condition, that condition in a criminal bail is in substance that the accused shall be present whenever wanted to answer the charge and abide the judgment of the court.

It is the presence of the accused, and not the money of the surety that is desired. In 6 Am. Jur., 88, it is said:

“It would appear that a recognizance or bail bond in general binds to three things: (1) to appear and answer either to a specified charge or to such matters as may be objected, (2) to stand and abide the judgment of the court, and (3) not to depart without-leave of the court. The duties and obligations in these respects are distinct and independent. The extent of the duty and obligation of the sureties, therefore, is to see to it that the principal, at all times during the term of the court to which he is bound to appear, is present to answer the call of the court and to do what the law may require of him. If they fail in this respect, they have not kept him under the power of the court as if he had been in the custody of its proper officer. It must not be inferred that the surety is thereby required to do something not stipulated in his bond, for the obligation thus imposed is nothing more than what the law reasonably considers to be within the condition of his undertaking.”

And, in 5 O. Jur., 5, it is stated that bail “has been defined in Ohio as the delivery of a person to his sureties, upon their giving, together with him, sufficient security for his appearance, he being supposed to remain in their friendly custody instead of going to jail.”

The obligation of the surety to .produce the accused is recognized by the statutes. Upon failure of the accused to appear, the surety is notified to appear “and produce the body of the defendant or show cause why judgment should not be entered.” Sec. 1343-18 GC.

That being the effect of releasing an accused upon bail it would seem that government would be justified in considering more than the financial ability of the proffered surety in determining his acceptability. We find that the judicial department has deemed itself bound to require more than mere proof of ability to respond to the penalty. In United States v. Simmons, 47 Fed. 575 (14 L. R. A. 78) the Court rejected a bail bond on the ground that the surety had been fully indemnified and therefore had no incentive to “take care that the condition of the recognizance is performed.” And at page 79 of 14 L. R. A., the court said: “Bail when accepted in criminal cases, becomes in law the custodians of the persons for the court: They have the right and are charged with the duty to arrest the prisoner in case he contemplates flight. The court looks to their vigilance to secure the attendance and prevent the absconding of the delinquent.” In (69 Fed. (2d.) 78) 91 A. L. R. 885, the court held as stated in the syllabus of the last-named report that: “A Federal Court deeming a surety company a poor moral or unsafe risk may refuse to approve an undertaking to which such company is a party, and may direct the clerk of the court to do likewise.” That was held in a case in which the agents of the surety company were suspected of conspiring with convicted persons to have others impersonate them and serve prison terms for them.

In United States v. Lee, 170 Fed., 613, the Court at 614 said:

“When indemnitors are not acting in good faith, and their purpose is to substitute the recognizance and the indemnity for the person of the accused and thereby enable him to flee from justice, the court or committing magistrate should not accept the recognizance.”

And, at page 615:

“When the circumstances point to bad faith on the part of the indemnitors, the right to bail guaranteed by section 1015, Rev. St. (U. S. Comp. St. 1901, p. 718), to an arrested party, does not prevent the court, in the exercise of a sound discretion, from rejecting sureties who, however honorable they may be, become sureties from purely business reasons and apparently without assuming any of the responsibilities which the law imposes.”

By §13435-1 GC, it is provided that a proffered surety must file an affidavit of justification as to any existing bonds or unsatisfied judgments or executions thereon, and, “He may also be required to state any other fact which the court deems relevant and material to a correct determination of the sureties’ sufficiency to act as bail.”

So, we conclude, that the law of Ohio as elsewhere is that in determining the sufficiency of a surety the courts have a sound discretion to determine not only his financial ability to respond to the penalty in the bond but also his moral responsibility in reaching a conclusion as to whether the bail will insure the presence of the defendant.

We have found one case only in which the constitutionality and interpretation of a statute requiring a license to engage in business as a professional bondsman have been considered and that is the case of McDonough v. Goodcell 91 Pac. (2d) 1035. The legislature of California enacted a law regulating the bail bond business and prohibited the carrying on of the business without a permit and authorized the insurance commissioner to issue permits upon proof that the applicant was “a fit and proper person to engage in such business.” After a hearing at which conflicting evidence was introduced the commissioner found that the applicants (two parthers) “were not persons of good moral character and that they were not fit and proper persons to engage in the bail bond business,” and refused to issue a permit. Some of the derogatory testimony was based on acts committed prior to the enactment of the law and that was assigned as error. The action was in mandamus to require the commissioner to issue the permit.

The court sustained the constitutionality of the law and the action of the commissioner thereunder, and denied the writ of mandamus. The opinion is lengthy. Many cases are cited and commented upon At page 1040 the court said:

“A survey of the foregoing authorities discloses that it is the settled general rule of law in this state that where the legislature has by statute clothed an administrative officer with power to ascertain the facts with reference to the fitness of an applicant for a permit to engage in a business subject to regulation under the police power and has vested in such officer the discretion, based on the facts ascertained, to grant or deny a permit to engage in such business the courts will not interfere with the exercise of such discretion except in the case of an abuse thereof.”

So, we conclude that, not only the financial but also the moral qualification of a surety upon a bail bond is a matter of public concern, subject to regulation under the police power and that those pursuing the calling of professional bondsmen for compensation are likkewise subject to regulation.

That leaves but one other question in this case and that is— Has the City of Cincinnati by its ordinance prescribed a moral as well as a financial qualification for professionál bondsmen and clothed the City Treasurer with the authority to determine the possession of such qualification — in the exercise of a sound discretion?

Recurring to the terms of the ordinance, it will be noted that it limits the issuance of permits to “responsible persons”. That is a prerequisite In addition to being a responsible person the applicant must furnish a bond in a sum not less than $1000.00 adequate to cover at all times the total of all outstanding undischarged bail bonds, etc. From this we draw the inference that the professional bondsman must present something more than an adequate bond, for if payment of the penalties was all that was desired the bond would suffice regardless of whether the permit holder was responsible or irresponsible.

One of the definitions given by Webster for responsible is “trustworthy, financially or otherwise.” To determine its meaning in any given case, its connotation must be considered. To be trustworthy means faithful to the trust reposed whatever the trust may be.

Now what is the trust reposed in the surety upon a bail bond? It is not primarily to respond in money to the extent of the penalty. His primary obligation is to produce the defendant in court to abide the judgment of the court. It is only on his default in the performance of this primary duty that the obligation to pay matures. Trustworthiness in answering to this duty to produce the person of the defendant is the sense in which the phrase “responsible person” is used in this ordinance.

We are fortified in our interpretation of this language by the other provision of the ordinance giving the City Manager supervision over professional bondsmen with authority to direct the City Treasurer to revoke the license of any such bondsman found guilty of dishonesty in connection with such business. Betrayal of the trust reposed to produce the defendant certainly would be classed as dishonesty. Certainly, ground for the revocation of the license would be sufficient reason for refusal to grant the. license in the first place.

When it is considered that the relator has stipulated that he has been convicted five times of violating the law, two of which violations involved fraud and perjury, it is not difficult to conclude that the respondent had ample basis for his conclusion that the relator was not a responsible person within the meaning of the ordinance and did not possess the qualifications required to act as custodian for the court of persons charged with crime, bound first and foremost with the duty of so acting as to.insure that the accused would respond when called.

Where discretion is lodged in- an official, where he is required to decide on conflicting evidence, or to choose between conflicting inferences, a writ of mandamus may issue to compel a decision, but not a particular decision. Sound discretion cannot be controlled by mandamus. It is only where there is an abuse of discretion that the writ will issue in such cases, in other words, where there is no place for the exercise of discretion under the circumstances. 25 O. Jur., 1131, et seq.

For these reasons, the writ of mandamus is denied, and the petition dismissed.

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


author: By THE COURT:

text:
    AMICON, Plaintiff-Appellant, v. CITY RAILWAY CO., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2022.
    Decided January 13, 1949.
    Mason Douglass, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Beiser & Greer, Dayton, for defendantappellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to strike the bill of exceptions from the files for the reason that said bill was' not filed in the trial court within the time prescribed by §11564 GC, and to affirm the judgment of the trial court.

The record shows that the motion for new trial was overruled September 23, 1948,-and that the Bill of Exceptions was filed in the trial court on November 19, 1948, or more than forty days after the motion for new trial was overruled.

It is well established that the requirement of §11564 GC that the Bill of Exceptions be filed not later than forty days after overruling motion for new trial is mandatory.

Counsel for plaintiff-appellant has assigned six separate grounds of error in his brief and states that the assignments of error may be summarized as embracing: (1) the general charge of the court; (2) the special charges given in behalf of defendant; (3) the weight of the evidence Manifestly a bill of exceptions is required to exemplify the errors assigned.

The appellant contends that §11564 GC permits the court to consider the question whether special interrogatories were properly submitted. Special Interrogatory No. 1 was filed with the verdict and attached to the transcript of the docket and journal entries. The appellant further contends that this court may consider the exhibits in the case and determine whether special instructions to the jury and the general charge were proper. The point is made that the motion to strike the bill of exceptions from the files can only reach those matters required by §11564 GC to be incorporated in a bill of exceptions. The contention is made that the matters heretofore mentioned are not required to be incorporated in the bill of exceptions. The pertinent part of §11564 GC provides that “When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the objection is * * * for a new trial for misdirection to the jury, or because the verdict, * * * is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his objections to writing and file them in the cause,” etc.

Subject to certain exceptions which do not exist in this case, under this section all grounds of objection which do not appear “upon the face of the record” must be reduced to writing and filed as a bill of exceptions. Vol. 2 O. Jur. pp. 422, 428. If there is nothing before the court except the pleadings, the court is limited to a review of errors presented by the pleadings. Vol. 2 O. Jur. p. 431. The record as made by the clerk consists of those matters mentioned in §11607 GC and do not include the matters herein mentioned.

This court cannot consider the exhibits nor determine whether the trial court acted properly in giving or refusing to give special instructions to the jury or in giving the general charge in.the absence of a bill of exceptions. Vol. 2 O. Jur. pp. 463, 464.

Assuming, without deciding, that the question as to whether the court acted properly in submitting special interrogatory No. 1 is properly before this court for determination, we would be required to find that the answer to the interrogatory is in accord with the general verdict; if the interrogatory consisted of a mixed question of fact and law, as contended by appellant, no prejudicial error resulted in its submission in view of a general verdict for the defendant.

The motion to strike the bill of exceptions from the files will be sustained (Kennedy v. Mancini, 22 Abs 607; McEvoy v. Ripley, 24 Abs 678) and the judgment of the trial court will be affirmed. Tenesy v. City of Cleveland, 133 Oh St 251; In the Matter of Lands, 146 Oh St 589.

An entry may be drawn in conformity herewith.

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