author: By McClelland, J.

text:
    McGRAFF, Estate of, In re.
    Probate Court, Franklin County.
    No. 129102.
    Decided October 28, 1948.

      J. Maxwell Maher, Columbus, for stepchildren.
    John S. Mitchell, Columbus, for proponent of will.
   OPINION

By McClelland, J.

This matter comes before the Court upon the motion of James Farley and his sister Marie Faulkner, who claim to be stepchildren of the testator, to vacate the order of probate of the testator’s will, on the ground that they are the next of kin of the testator, but that the will was admitted to probate without notice to them as required by statute. Scholl v. Scholl, 123 Oh St 1, 173 N. E. 305.

Counsel for the proponent of the will claims that the alleged stepchildren are not stepchildren of the testator because of the fact that about six months before the death of the testator, his wife, who is the mother of the alleged stepchildren, obtained a divorce from the testator.

The facts show that the testator left no other persons entitled to inherit from the testator under the stautes of descent and distribution, and that the proponent of the will knew of the existence of the alleged stepchildren, and knew that they resided in Columbus, Ohio.

The question before-us, therefore, is: Are these alleged stepchildren actually stepchildren of the testator within the meaning of the term “stepchildren” as employed in Subsection 9 of §10503-4 GC (Statute of Descent and Distribution) ?

The question is-one of first impression in Ohio and counsel are unable to find any case in point in other jurisdictions. There are numerous cases involving rights of persons related by affinity in connection with insurance contracts. However, questions whether persons related by affinity are entitled to the proceeds of insurance policies are questions involving the interpretation of contracts. Our question involves a question of inheritance under our statute of descent and distribution.

In the leading case of Spear v. Robinson, 29 Me. 531 the effect that relationships by affinity are not terminated by dissolution of the marriage which created them, the Court in its opinion had this to say concerning relationship by affinity:

“By the marriage, one party thereto holds by affinity the same relation to the kindred of the other, that the latter holds by consanguinity. And no rule is known to us, under which the relation by affinity is lost on a dissolution of the marriage, more than that by blood is lost by the death of those through whom it is derived; the dissolution of a marriage once lawful, by death or divorce, has no effect upon the issue, and it is apprehended, it can have no greater operation to annul the relation by affinity which it produced.”

We are inclined to agree with this statement. When a divorce is decreed the marital relationship of husband and wife, the parties to the action, is dissolved the same as if one of the parties had died, and leaves the parties free to marry again. The divorce action involves only the relationship of the parties to the action and no other parties are involved. All statutes concerning the status of divprced couples involving rights of inheritance, etc., relate only to the rights between the divorced husband and wife, but go no further so as to involve the status, relationship or rights of other persons brought about by the marriage of the couple.

If it be the law that relationship by affinity is dependent upon a subsisting marriage, then it is quite obvious that the statute would be meaningless because, under such an interpretation, an inheritance would never descend to stepchildren but would be intercepted by the wife. Of necessity therefore, the wife must be dead or divorced if stepchildren are ever to take an inheritance under the statute, before it escheats to the State.

Irrespective of the foregoing consideration, it is our opinion that the legislative history of the statute under consideration is the determining factor with reference to the question before us, as far as the law of Ohio is concerned. Sub-section 9 of §10503-4 GC, has been in force since January 1, 1932. When this statute was enacted, the Legislature repealed §8576 GC, which was the section that corresponded to the part of §10503-4 GC which we have under consideration. Former §8576 GC reads as follows:

“When real estate to pass to children of former husband or wife; when to escheat. — When a person dies intestate, having title or right to any real estate or inheritance, whether by descent, devise, or deed of gift from an ancestor, or acquired, and there is no person entitled to inherit it under the next three preceding sections, then the estate shall pass to and vest in the children of any deceased husband or husbands, wife or 'wives, of the intestate, whose marriage with the intestate was not annulled prior to his, her or their death’ or their legal representatives. If there are no children, or their legal representatives, living, then the estate shall pass to the brothers and sisters of any such husband or wife, or their legal representatives; if there are mo brothers and sisters, nor their legal representatives, the estate shall pass to the next of kin of such intestate; and if there are non such, then the estate shall escheat and be vested in the state of Ohio. (R. S. §4161) [59 v. 50, Sec. 3; S. & S. 306; S. & C. 502.]”

Counsel for the proponents of the will claims that the Legislature, by the elimination of the words above emphasized in the old statute from the new statute, did not intend to make any change in the meaning of the new statute, but that the Legislature by the enactment of the new section merely intended to re-codify and consolidate the law. The whole part of §10503-4 GC negatives any intention on the part of the Legislature not to change the law 'of descent, as it contains numerous changes about which there can be no dispute.

We know of no Court decision involving stepchildren which might have motivated the Ohio Bar Committee in recommending to the Legislature the change in the wording of the statute. Certainly the Bar Committee or the Legislature is presumed to have had a case similar to this in mind, when it eliminated from the new statute the words in the old statute above emphasized, which were definite and full of meaning. When the Legislature amends a statute involving substantive rights, it attempts to make the statute as definite as possible, and where it eliminates a part of an existing statute that is definite, it must be presumed that it intended to make a change. It might be argued that, due to the great increase of the number of divorces, the Legislature felt that before it would permit property to escheat to the State, it would permit stepchildren, like the ones involved in this case, to inherit from their step-parent.

It is a cardinal rule of statutory construction, that when an existing statute is repealed and a new and different statute upon the same subject is enacted, it is presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof. Board of Education of Hancock County v. Boehm, 102 Oh St 292, 131 N. E. 812, and Board of Education v. Board of Education, 112 Oh St 108, 146 N. E. 812. This can, therefore, mean but one thing, namely, that by the repeal of §8576 GC and the enactment of §10503-4 GC, Sub-section 9, in its place, the Legislature intended that stepchildren shall inherit irrespective of the dissolution of the marriage by divorce.

We cannot help but feel that since the Legislature provided in §10503-4 GC that property should escheat to the State before it be permitted to descend to any persons more remote than stepchildren, it intended to eliminate the restrictions on stepchildren inheriting which were contained in the old §8576 GC.

It is, therefore, our conclusion that the will should not have been admitted to probate without notice to these stepchildren, who, we hold, would have been entitled to inherit from the testator under the statutes of descent and distribution, if he had died intestate, and that the motion to vacate the order of probate should be sustained.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    KENNARD, Plaintiff-Appellant, v. HOME STORAGE & VAN CO,. Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4175.
    Decided October 18, 1948.
    Edward F. Lynch, Columbus, for plaintiff-appellant.
    H. B. Yarnell, Columbus, for defendant-appellant.
   OPINION

By THE COURT:

Plaintiff instituted her action in the Municipal Court of the city of Columbus for damages for the loss of certain articles which had been placed with the defendant in storage. The articles were enumerated and specifically valued in the total sum of $474.86, for which judgment was prayed. Upon issue joined, the cause was tried to a Judge without the intervention of a jury and a finding and judgment was entered on behalf of plaintiff against the defendant in the sum of $379.89 with costs. Thereafter, motion for new trial was filed and sustained, rehearing had, request made -for separate findings of law and fact and order entered complying with the request and granting the motion for new trial. The appeal is from the granting of the new trial. It is urged that the action of the Court was contrary to law and in abuse of its discretion and that the order is not sustained by sufficient evidence.

The separate findings of fact and conclusions of law consist of eleven findings of fact and two conclusions of law. The first eight findings of fact relate to the status of the parties, the payment of storage charges, the passing of a receipt for the goods by the defendant, which receipt was unsigned, statements relative to certain packages in the home of the plaintiff which were not to be stored; that some of these packages were not loaded into defendant’s van but were placed in plaintiff’s auto where they remained for several days, that plaintiff drove to Vanceburg, Kentucky, where she discovered that her property, some of which is the subject of the law suit, was missing; that she then returned to Columbus, notified defendant of her missing property, requested opportunity to search for it, but was denied that privilege. The fourth specific finding of fact is,

“When plaintiff’s goods were being loaded from her house into defendant’s moving van, certain packages had been segregated for the purpose of being loaded into plaintiff’s auto to be taken by her to Vanceburg, Kentucky. One or more of said packages were, nevertheless, loaded into defendant’s moving van by inadvertence, and said inadvertent loading into defendant’s van because known to plaintiff almost immediately, and before the van left the premises with her household goods.” (Emphasis ours.)

The ninth finding of fact is,

“On or about October 10, 1946, when plaintiff’s goods were delivered to her from storage, the following packages were missing: 1 Carton, 1 Crate, 2 Baskets, 2 Bundles, which contained the following articles: (See petition) These artices were of the reasonable value of $379.89.”

Tenth,

“Plaintiff gave defendant immediate verbal notice of the loss of the above described property and demanded the same from defendant.”

Eleventh,

“Upon consideration of the fourth ground of defendant’s motion for a new trial; to wit, ‘The judgment is not sustained by sufficient evidence and is contrary to law,’ the court finds that the evidence tending to show whether the lost property was in the packages delivered to defendant and not redelivered to plaintiff, or in other and similar packages placed in plaintiff’s automobile, is inconclusive and unsatisfactory and does not establish the fact of delivery of the missing property to the defendant by a preponderance of the evidence.”

Conclusions of law:

(1) The receipt issued to plaintiff by the defendant-warehouse company for her property, not being signed by said company, fails to comply with §8458 GC, and is therefore without effect in fixing the liabilities of the parties as contemplated by the Uniform Warehouse Receipts Act.

(2) The defendant is entitled to a new trial.

That part of the fourth finding of fact which we have emphasized is material because it conforms to the testimony of the plaintiff that the carton, in which were packed some of the articles which she claimed to have lost in storage, was intended to be placed in her automobile but inadvertently loaded into defendant’s van. The court, in this finding of fact, explicitly determines that one of these packages was loaded into defendant’s moving van by inadvertence, which fact was immediately observed by the plaintiff and before the van left her premises.

The ninth finding of fact is definite to effect that the articles as specified in the petition were not delivered to her from storage and the language, “when plaintiff’s goods were delivered to her from storage”, implies that they were in storage. One carton which is listed by the warehouseman and which contained. some of the disputed goods is by inclusion found to have been missing on delivery, and further, that the packages missing and designated contained the identical articles described in the petition and that their value was in the sum for which the judgment was entered. Findings four and nine are, in conjunction with the other findings of fact, sufficient in all particulars to support the judgment originally entered on behalf of the plaintiff. Special finding of fact No. 11 is inconsistent and irreconcilable with findings Nos. 4 and 9 and taken together do not permit of the conclusion that the defendant is entitled to a new trial.

The principle controlling is found in Buffalo v. Delaware L. & W. R. Co. 16 L. R. A. N. S. 506, 511, 190 N. Y. 84, 82 N. E. 513.

“While an Appellate Court should harmonize inconsistent findings when it is possible to do so, if they prove irreconcilable, it is the duty of the Court to accept those most favorable to the appellant, as he is entitled to rely upon them in aid of his exceptions.”

3 Am. Jur. 463, 5 C. J. S. 1196.

The findings of fact, being so inconsistent as to be irreconcilable, will not overcome the general effect of the judgment in behalf of the plaintiff and will not support the conclusion of law that a new trial should be granted and required, as a matter of law, as to all matters shown to have been considered, that the Court overrule the motion. We likewise must hold that upon the record as it comes to us the motion for a new trial should have been overruled were it not for the fact that there was one ground of the motion, No. 2, Newly discovered evidence, upon which the Trial Judge did not pass.

We, therefore, reverse the order granting the motion for new trial upon the ground assigned in connection with the Findings of fact and Conclusions of Law and remand the cause for further consideration upon the second ground of the motion for new trial not heretofore determined by the Trial Judge. If upon such consideration the Court rules against the defendant on the second ground of its motion for new trial, then it is ordered that the motion for new trial be overruled. If the motion for new trial is sustained, on said second ground thereof, the cause will proceed according to law.

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


author: By HURD, J.

text:
    CLEVELAND TRUST CO., Plaintiff-Appellant, v. SMITH et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21060.
    Decided March 7, 1949.
    Todd & Todd, Cleveland, for plaintiff-appellant.
    Stephen M. Young, Cleveland, for defendants-appellees.
   OPINION

By HURD, J.

This is an appeal from the Common Pleas Court of Cuyahoga County, from a judgment of said Court overruling the appellant’s motion for an order to revive a dormant judgment. By its judgment the Common Pleas Court gave to the appellees the benefit of the provisions of §11663-1 GC, commonly known as the Petri Act.

While there are a number of assignments of error, we are principally concerned with.the claim that the Common Pleas Court erred in holding that the enforcement of plaintiff appellant’s judgment is barred by §11663-1 GC and that the Court erred in refusing to render final judgment of revivor for plaintiff appellant.

For the purpose of brevity and convenience, the parties will be hereinafter referred to as plaintiff and defendants as they appeared in the trial court.

A brief summary of the facts is necessary. It appears that on Sept. 22, 1926, the defendant, Ernest C. Smith purchased the single dwelling house located at 2019 Carabelle Avenue, Lakewood, Ohio. In order to procure sufficient funds to make the purchase, the defendant borrowed $4200.00 from the plaintiff, giving his note therefor secured by a first mortgage on the premises. Thereafter on May 18, 1936, a decree of foreclosure was entered and a personal judgment rendered in favor of the plaintiff against the defendants, Ernest C. Smith and his wife, Mabel, who had joined in the note and mortgage. The property was sold at sheriff’s sale on August 24, 1936 and the sale confirmed, leaving a deficit of $2024.28 with interest from Sept 24, 1936. Thereafter the judgment became dormant. On Sept. 3, 1946 the Common Pleas Court upon application of plaintiff issued a conditional order of revivor.

The defendants filed their answer in the revivor proceedings in which they stated:

“Said judgment was rendered in this court upon an indebtedness which was secured and evidenced by mortgage on real estate upon which real estate there was at the time of said mortgage and at the time of said judgment a dwelling for not more than two families; which had then been used as a home; * * *”

An issue was made in the reply of plaintiff as follows:

“Plaintiff denies that the dwelling * * * was used as a home •by said mortgagors, Ernest C. Smith and Mabel A. Smith at any time after the execution and delivery of said mortgage * * * and denies that said mortgaged premises were of the character to bring plaintiff’s said judgment within the provisions of §11663-1 GC.”

The defendants testified that neither of them ever used the premises as a home after acquiring ownership and after the mortgage and note to the plaintiff had been executed, stating that they did not live in the mortgaged property because it was too far from the husband’s work. The property was rented to tenants during the entire life of the mortgage but was vacant a considerable portion of the time. Upon two occasions tenants were evicted from the premises for non-payment of rent.

Because the defendant, Mabel A. Smith, claims that it was at one- time her family home, we deem it necessary to include in the statement of facts a brief summation of her testimony as shown in the record relating to this claim.

It appears that the building in question had originally occupied a lot on Hilliard Road, a short distance irom Carabelle Avenue. The defendant, Mabel A. Smith’s father originally owned this property which is referred to as “the old homestead” in which she lived from the time she was about eight years of age. Her father sold the property on Hilliard Road to the Board of Education of the City of Lakewood but reserved the right to remove the house to Carabelle Avenue. The defendant testified on cross-examination that she left her father’s home first in 1912 when she was married for the first time, after which she returned to her father’s home in 1916 and remained there until she re-married in Feb. 1918. She was divorced for a second time in 1920 and after that she moved to her father’s home still on Hilliard Road. In 1921 the house was moved from Hilliard Road to Carabelle Avenue. She lived at her father’s home after that, off and on, until she married the defendant, Ernest C. Smith in 1923. Neither she nor defendant Ernest C. Smith ever lived in the premises after that. Her father died April 24, 1924 without leaving a will, by reason of which she was seized of a 1/8 interest in the property.

Thereafter in April, 1926, an action in partition was commenced in Common Pleas Court by one of defendant’s brothers. On Sept. 16, 1926, the property was sold through the partition proceedings to the defendant, Ernest C. Smith, the defendant Mabel A. Smith joining in the deed with the other heirs.

It is claimed by the defendants that while they never occupied the home that they held it as a home site or as a homestead. This .is based upon their testimony that they had intended that when Mr. Smith retired from business they would convert the single dwelling into a two-family house and occupy one part of it as a home.

The members of this Court are of the opinion that the conduct of the defendants completely negatives their assertion that they ever held this property as a homestead or homesite. The fact that they continuously rented it to tenants indicates a use as an investment property. According to their testimony, the property was vacant a considerable part of the time and on two occasions they evicted tenants for nonpayment of rent. They had every opportunity to use the property as a homestead if they desired, but did not choose to do so. In our opinion this is a case where actions speak louder than words.

We think further that the contention that this was the homestead of defendant, Mabel A. Smith, and that she held it as such, cannot be sustained. True, she lived there with her father and her brothers and sisters at different times, but upon her marriage to Ernest C. Smith she left the home and never returned. She did not acquire any interest in the property until her father’s death and this was promptly sold by her together with the other heirs through the partition proceedings in Common Pleas Court.

Counsel for defendants rely particularly on the cases of Montalto v. Yeckley, 138 Oh St 313; and Vekoske et al v. Cleveland Trust Co., 81 Oh Ap 511.

The syllabus of the case of Montalto v. Yeckley, 138 Oh St 313 is as follows:

“Sec. 11663-1 GC is constitutional, but it does not operate to preclude the enforcement of a deficiency judgment rendered for an indebtedness secured by mortgage upon premises never occupied or held as a homestead and on which is erected a building primarily for business purposes, consisting of a storeroom on the first floor and living quarters for not more than two families on the second and third floors.”

We cannot And that this case supports the contention of defendants or that there is any analogy on the facts.

The case of Vekoske et al v. Cleveland Trust Co. 81 Oh Ap 511, decided by this court (the First District Court of Appeals sitting by designation), likewise has no application here because Ross, J., in his opinion in that case stated in part:

“There is substantial evidence that the appellees purchased the property in question (the 81st Street apartments) with the avowed intention of occupying the second floor apartment as a home. Under contract with the vendor they permitted the occupying tenant their grantor, to remain for some two years pending the acquisition of another home. This agreement was evidently a factor in the purchase. Efforts were made by appellees to secure possession of the second floor apartment but were unsuccessful by reason of the agreement to permit the grantor tenant to remain until a new location could be secured.”

The court in that case held (syllabus):

“See. 11663-1 GC is applicable as a limitation upon the enforcement of a deficiency judgment, where it clearly appears that the judgment debtor is a mortgagor of premises sold on foreclosure to satisfy the debt, partially covered by such deficiency judgment, and that such judgment debtor as mortgagor entertained a bona fide intention to occupy a portion of such premises, being a two-family apartment building, as a homestead, although such judgment debtor never lived in any part of such premises and neither he nor his family occupied them as a home or homestead and continuously maintained a home in residences elsewhere.”

The record in the instant case clearly indicates that there was not a bona fide intention to occupy this residence as a homestead. The failure to occupy it for a period of ten years when there were many opportunities to do so, effectually negatives a bona fide intention to occupy the property as a residence such as the court found as a matter of fact in the Vekoske case.

It is our conclusion, based upon the record before us, that the defendants in this case do not come within any of the holdings in the cases relied upon by them. It appears to us that on the evidence the defendants never occupied the premises 'in question as a homestead after its purchase by defendant, Ernest C. Smith, and that they did not hold it as and for a homestead or homesite as claimed by them.

Therefore the judgment of the Common Pleas Court is reversed for error in holding that the enforcement of plaintiff appellant’s judgment is barred by §11663-1 GC and for refusing to render final judgment of revivor for plaintiff appellant. The cause is remanded to the trial court with instructions to grant the motion to revive the judgment as prayed for. Exc. Order See Journal.

MORGAN, PJ. SKEEL, J, concur.


author: By THE COURT.

text:
    LEEMAN, et, Plaintiffs-Appellants, v. HAGGARD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4150.
    Decided May 17, 1948.

      Harry S. Krakoff, Lytle G. Zuber, Columbus, for plaintiffs-appellants.
    George E. Tyack, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Municipal Court of Columbus, Ohio. The action is one in replevin to recover possession of certain household furniture.

Plaintiffs-appellants claim that on June 19, 1947, the defendant called at their retail furniture store and selected from the floor certain household furniture, the total cost of which was $1292.91. Defendant made a cash payment of $600.06 and signed in blank a note and chattel mortgage for the balance due in the amount of $692.85. The balance due was to be paid in fourteen (14) equal monthly installments. The note and chattel mortgage were later completely filled in by the plaintiffs. On the next day the items of furniture were delivered to the defendant’s residence. Upon failure of defendant to make payments on the note according to its terms, the plaintiffs brought this action to recover possession of the furniture.

The defendant filed an answer in the nature of a general denial, and a cross-petition in which she alleged that the furniture selected and purchased by her was represented by the plaintiffs to be new furniture; that the furniture delivered to her was not the furniture selected, but was secondhand furniture in a defective condition. Defendant alleged that she made complaint to the plaintiffs and demanded that the matter be adjusted which the plaintiffs agreed tó do but failed to comply with their agreement. Defendant alleged the reasonable value of the furniture delivered was $400.00 and prayed for judgment in the amount of $200.06 being the difference between the amount paid and the value of the furniture, and that the chattel mortgage be cancelled.

Plaintiffs in their reply denied that the furniture delivered was secondhand furniture and alleged that the complaints made relative to certain items of furniture were taken care of to the best of their ability.

The case was tried to a jury which returned a verdict without interrogatories, finding the right of possession to be in the defendant, made no award of damages in favor of the defendant, and further fixed the value of the property at $600.00. The Court overruled a motion for new trial and rendered a judgment on the verdict.

Appellants claim the Court erred in overruling their motion to dismiss the defendant’s cross-petition at the end of defendant's case for insufficient evidence. There was evidence introduced supporting the allegations in the cross-petition and the trial court very properly submitted the issue to the jury.

Appellants contend the Court committed prejudicial error in the admission of evidence. On cross-examination Milton J.

Leeman, one of the plaintiffs, was asked the question: “What are your gross sales at your place of business?” An objection was interposed which was overruled. The witness had testified in detail concerning the transaction with the defendant. A wide latitude is accorded counsel on cross-examination to test the credibility of the witness. The question was proper to test his ability to remember the details of one transaction out of many and had a tendency to affect his credibility.

Appellants contend counsel for defendant was guilty of misconduct which was prejudicial to their case. The remark made by defendant’s counsel which is claimed is highly prej - udicial was addressed to the Court in argument on an objection and was as follows: “No man is going to admit his own business is robbing the public, Your Honor”. Counsel promptly apologized and the Court instructed the jury to disregard remarks of counsel. After an examination of the record we cannot say that the remarks of counsel, although improper, were so prejudicial as to require reversal.

Appellants claim the Court erred in its charge to the jury. The Court charged the jury that the defendant was required to prove the material allegations in her cross-petition by a preponderance of the evidence. It is claimed that since the defendant prayed for a cancellation of the chattel mortgage the cross-petition should be sustained by clear and convincing evidence. With this we do not agree. Replevin is a legal and statutory remedy. The defendant denied plaintiffs’ right to possession, and set up a counterclaim for damages. The issues raised were of a legal character. The cancellation of the chattel mortgage, although prayed for, was not a determinative factor in the case. Moreover, the cancellation of the chattel mortgage was not a matter to be submitted to the jury, but to the Court which would require the court to exercise its equity powers. The cross-petition was based on breach of contract and the issues raised required the application of the preponderance rule.

Evidence of a substantial character was admitted in the support of the material issues in this case which required its submission to the jury. After an examination of the entire record, we cannot say that the verdict is against the manifest weight of the evidence.

Finding no prejudicial error in the record the judgment is affirmed.

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


author: By HORNBECK, J.: By THE COURT: By THE COURT:

text:
    BROWN, Plaintiff-Appellee, v. WACKMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 168.
    Decided May 14, 1949.
    C. C. Crabbe, Garek & Sillman, Columbus, H. H. Crabbe, London, for plaintiff-appellee.
    Wiles & Doucher, Columbus, Forrest E. Sidener, Jr., London, for defendant-appellant.
   OPINION

By HORNBECK, J.:

The appeal is from a judgment for $16,000.00 entered on a verdict of a jury in favor of plaintiff and against defendant for damages for personal injuries suffered by plaintiff when a car in which he was riding collided with a truck.

Upon plaintiff’s opening statement to the jury at the conclusion of his testimony and at the end of all of the testimony defendant moved for a directed verdict and after verdict for judgment non obstante, which motions were overruled.

It was the claim of the defendant at the trial, and is hgre, that upon the facts appearing, the assured clear distance ahead provision of §6307-21 GC precludes any recovery on behalf of the plaintiff. Testing this question upon the developments in their most favorable light to the plaintiff, the facts are: Plaintiff and his brother were partners in farming operations. On the night of February 6, 1948, they left their home, moved over to Route 70 and started to Jeffersonville. Glendon Brown, brother of the plaintiff, was driving a 1934 Ford sedan. To his right was Merle Jones and to Jones’ right, plaintiff was seated with his right arm in the window of the car. They had travelled from South Charleston and had reached a place a short distance from South Solon, moving in a southeasterly direction on the highway, which is 18 feet wide, at a rate of speed of about 40 miles per hour. Their headlights were burning. On the night of the collision the driver of a 1940 GMC 1% Ton truck, belonging to defendant, James Wackman, abandoned it on the right side of the highway about 3/10 of a mile from South Solon. The truck was empty and most of it had been moved off of the highway proper but there was left projecting about 10 inches over the paved portion of the highway a part of the rear left side of the bed of the body of the truck. The truck had no signals of any kind on it and no flares or lights had been put along the highway to warn of its presence. At a distance of about 400 feet to the southeast of the place where the truck was parked there is a turn in the roadway of Rt. 70. As plaintiff’s driver approached the parked truck, an automobile moving to the northwest, the opposite direction from that in which the plaintiff was moving, made the turn in the highway and when he had straightened up upon the thoroughfare the front lights on his automobile were so bright that they blinded the driver of plaintiff’s car. He immediately applied his brakes, materially lessened his speed but before he stopped, the left rear portion of the truck projecting over the highway “came over his right fender”, as he puts it, resulting in the collision and very serious injuries to the plaintiff’s arm. Plaintiff’s driver says that because of the blinding lights his vision was materially cut off and that he could not, and did not, see the projecting truck until he was almost upon it.

It is conceded that the negligence, if any, of the driver of the automobile may be imputed to the plaintiff because of their partnership. As to the negligence of the defendant, which was flagrant, there is no issue.

The sole determinative question here is whether or not, as a matter of law, plaintiff is chargeable with contributory negligence.

Appellant cites and relies upon two cases. Kormos v. Credit Men’s Co., 131 Oh St 471, and Smiley v. Spring Bed Co., 138 Oh St 81.

The trial judge instructed the jury upon the assured-clear-distance-ahead provision of the Code that it enjoined a specific requirement of law upon the driver, a violation of which constituted negligence per se. He further charged the jury,

“That the law, however, does not require the driver to do that which is impossible in the face of an emergency which he could not foretell and over which he had no control. And a driver who has failed to comply with these provisions of the statute may excuse such failure and avoid the legal imputation of negligence per se by establishing that, without his fault and because of circumstances over which he had no control, compliance with the law was rendered impossible.”

This charge is in conformity with the 3rd syllabus of Kormos v. Credit Men’s Company, supra.

The Kormos case recognizes that there may be a legal excuse for the failure to observe the assured-clear-distance-ahead provision of the Code. On page 477 of the opinion Judge Jones says,

“If he (plaintiff) were blinded many moments before the collision, it was his duty to immediately decrease his speed and, if necessary, to stop until he recovered his vision. In the Wosoba case, supra,” (Wosoba v. Kenyon, 215 Iowa, 226, 243 N. W. 569) “the syllabus reads: ‘The failure of the driver of an automobile to drive at such speed as will permit him to bring the car to a stop “within the assured clear distance ahead” constitutes, in the absence of some legal excuse, negligence per se. And such excuse is not made to appear by evidence that the driver met a car and was temporarily blinded by the lights shining in his face, but did not slacken his speed.’ There is no evidence that plaintiff made any effort to decrease his speed until a moment before the collision occurred.” (Emphasis ours.)

There is evidence in this case that plaintiff’s driver did decrease his speed as soon as he appreciated his inability to see the road ahead of him but before he came to a stop the collision occurred.

Smiley v. Spring Bed Company, supra, is the ultimate in strict construction of the assured-clear-distance-ahead provision of the Code. However, even in this opinion, Judge Hart at page 87 of the opinion says:

“Notwithstanding the strict construction given the assured clear distance statutes by this court, and by the Supreme Courts of other states in the cases just cited, this court in the cases of Gumley, Admr. v. Cowman, supra, Kormos v. Cleveland Retail Credit Men’s Co., supra, and Hangen v. Hadfield, 135 Oh St, 281, 20 N. E. (2d), 715, suggested that situations may arise and collisions occur under circumstances which provide legal excuse to the person charged with the violation of the statute.”

The opinion continues, and characteristic of the writer, many cases are cited, coming within the exception to the strict construction. No one of them presents such similarity of facts to the instant situation as to be especially applicable. However, the second syllabus of the Smiley case recognizes that to give application to the statute the driver must not operate his automobile at a greater speed than will permit him to bring it to a stop within the distance between his automobile and a discernible object obstructing his path.

No good purpose would be served to engage in a prolonged discussion of the application of the assured-clear-distance-ahead statute in the many other cases in which it has been considered. Our Supreme Court has in several of its opinions discussing the subject relied upon Iowa cases.

In Kadlec v. Johnson Construction Company, 217 Iowa 103, 252 N. W. 103, decided since Lindquist v. Thierman, an Iowa case, cited in Smiley v. Spring Bed Company, supra, at page 108, commenting on Lindquist v. Thierman, the Judge writing the opinion says,

“It is not inconsistent to say that, if there are other peculiar circumstances present, which, added to the unlighted truck, make it indiscernible, then the question of contributory negligence might well be for the jury.”

And in Kimmel v. Mitchell, Iowa, 249 N. W. 151, at page 153 of the opinion, it is said,

“The failure of appellee to timely discover and avoid colliding with the truck may be due to the position in which the truck was parked on the highway and the diversion of the attention caused by the lights of the truck in the adjoining field.”

Upon the factual development here there is a question whether or not under the circumstances confronting plaintiff’s driver that part of the truck which projected into the highway was a discernible object. The circumstances over which plaintiff’s driver had no control were the oncoming brilliant lights on the approaching automobile and the nature of the obstruction in the highway and the small part thereof, if any, which would be visible. . From the statement of the .driver of the truck as to the place where and the manner in which it was parked, it is inferable that no one of the wheels was on the surface of the highway and that the truck upon which the bed rested was not over the highway.

When the vision of the driver of plaintiff’s car was impaired, he was moving 40 miles per hour and the exercise of the reflexes necessary to stop his car took some time. The speed of the oncoming car is not fixed but at any ordinary driving rate it would be a matter of seconds only from the time that it was straightened upon the highway until it came alongside of the truck and the place of the collision. Plaintiff’s driver, in braking his car and attempting to bring it to a stop, observed the precaution which was missing in both the Kormos v. Credit Men’s Co. and Smiley v. Spring Bed Co. cases.

The obligation of plaintiff’s driver must be determined upon the physical facts with which he was confronted. The oncoming lights were to his left and certainly were of first concern in preserving his own safety. His attention must have been diverted for a period of time to these lights. Notwithstanding the visibility of the highway produced by the headlights of the automobile, that portion of the truck which was struck would not be as discernible as other objects of greater size or extending on to the surface of instead of over the highway. It is not sound to assume that all objects on or above the highway under all conditions are equally discernible. Our military authorities have developed the art of camouflage to such a degree that objects are made largely indiscernible or are made to appear to be that which they are not. Changing and varying lights, shadows, objects and atmospheric conditions do affect visibility on the highway. The courts have said that a stake or a wire in a highway are not such discernible objects as to charge a driver with the application of the assured-clear-distance-ahead statute. We have already held in Farris v. City of Columbus, 53 Abs 369, that a defect in a street may or may not have been such an obstruction in the highway as to be visible to the driver of an automobile. Manifestly, there are many degrees of visibility between freight cars standing across the full width of a road, as in Skinner v. The Penna. Rd. Co. 127 Oh St 69, and a wire on or above the highway. It is those objects that come between the extremes that present the factual question whether or not they are discernible.

The Kadlec case, supra, is worthy of careful reading. It abounds with common sense and appreciation of the practical operation of automobiles on highways. So much of it is germane to this case that it would be impractical to quote from it. The Court defines assured-clear-distance-ahead in the same terms as our Supreme Court but, as does our Court, recognizeso that there are legal excuses for failure to observe the requirements of the statute. Four of such excuses are set out, three of which.are applicable here, (1) Anything that would make it impossible to comply with the statute * * *; (2) Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute * * *; (3) Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.

In our judgment, there was an issue properly presented to the jury -whether or not plaintiff’s driver presented a legal excuse for the failure to observe the assured-clear-distance-ahead statute. The jury resolved this issue in favor of the plaintiff, a conclusion which is permissible upon the record.

The judgment will be affirmed.

WISEMAN, J, concurs, MILLER, PJ, not concurring.

ON APPLICATION FOR REHEARING

No. 168. Decided June 2, 1949.

By THE COURT:

Submitted on application for rehearing.

Our present rules make no provisions for applications for rehearing but we have considered the reasons assigned for the granting of the application and find no reason which would require us to change the conclusion which we reached in our original opinion. Practically all of the matters urged were considered and discussed by us. However, we did not consider the specific assignments of error which were not stressed in the briefs as to the failure of the trial judge to give certain special instructions requested by the defendant before argument.

The entry journalizing our opinion may recite that no error assigned is established.

HORNBECK and WISEMAN, JJ, concur, MILLER, PJ, not concurring.

ON MOTION TO CERTIFY JUDGMENT

No. 168. Decided June 15, 1949.

By THE COURT:

Submitted on motion of appellee to certify the judgment in this case to the Supreme Court as being in conflict with Buddenberg v. Kavanaugh, 17 Oh Ap 252, Court of Appeals of Cuyahoga County. The syllabi of the Buddenberg case hold,

“It is the duty of a driver of an automobile to stop his car when for any reason he cannot see where he is going.”

and that,

“Where a petition recites that plaintiff was blinded by the lights of an approaching machine so as to be unable to see the street ahead of him, and that while so driving he collided with another machine negligently left in the street, the contributory negligence of the plaintiff is apparent and there is nothing to submit to the jury.”

The facts as developed showed that the plaintiff did not stop his machine but changed its course and thereupon the accident occurred. There is no finding that the plaintiff was making any attempt to stop as is developed in the instant cause. Manifestly, there is a period between the time when a person prepares to stop and the moment when the car comes to rest. It was the claim here that it was during the period of time that the car was being brought to a complete stop that the accident occurred.

We are also referred to Becker v. Dayton Power and Light Company, 56 Oh Ap 140, an opinion by a member of this court. In the Becker case the object with which the plaintiff came in contact was a Power and Light Pole which was not in the street but on the pavement thereof which was not separated from the street by a curb. We determined that under the physical facts appearing there was no issue as to the discernibility of the pole, the object which was struck. In the instant case we are of opinion that there was such an issue.

The motion will be denied.

HORNBECK and WISEMAN, JJ, concur.

MILLER, PJ, dissents.


author: By ALLEN, CJ.

text:
    TAYLORCRAFT AVIATION CORPORATION, In re UNITED STATES v. MARTIN FIREPROOFING CORPORATION.
    United States Circuit Court of Appeals, Sixth District.
    No. 10604.
    Decided June 1, 1948.

      Theron Lamar Caudle, Sewall Key, A. F. Prescott, Fred E. Youngman, Washington, Don C. Miller, Francis B. Kavanagh, Cleveland, for appellant.
    Gerald A. Doyle, Cleveland for appellee Martin Fireproofing Corp.
    Hugh Wells, Cleveland, for trustee of Taylorcraft Aviation Corp.
   OPINION

By ALLEN, CJ.

This is an appeal from an order of the District Court which confirmed the findings and order of a referee in bankruptcy determining that the appellee had a lien upon the property of Taylorcraft Aviation Corporation, debtor, superior to that of the United States for taxes. The facts are not disputed and as found by the referee are in substance as follows:

November 8, 1946, the debtor filed a petition for reorganization under Chapter 10 of the Bankruptcy Act, 11 U. S. C. A., Section 501 et seq. The petition was approved, and the debtor was adjudicated bankrupt on April 25, 1947. Several hours prior to the filing of the petition for reorganization, on November 8, 1946, the Government filed with the recorder of Stark county, Ohio, notice of a lien for taxes, as required by Section 3672(a) (2), Title 26, U. S. C. 26 U. S. C. A., Int. Rev. Code, Section 3672(a) (2). In April, 1946, the appellee and the debtor entered into a contract under which appellee furnished labor and material required for the erection of a roof deck and curbs on manufacturing buildings owned by the debtor. The first labor and material were furnished to the debtor on August 6, 1946, and the last on September 22, 1946. The appellee filed its affidavit for mechanic’s lien, as provided by §8310 et seq., GC, on November 20, 1946 and complied in all respects with the statutes of Ohio for obtaining a valid mechanic’s lien upon the real property of the debtor, the affidavit for the lien being duly filed within sixty days after the last item was furnished.

The Government made various assessments and demands upon the debtor for payment of taxes, beginning August 14, 1946, and ending March 27, 1947. Assessments of approximately $475,000 and demand therefor were made upon the debtor in conformity with the federal statutes, prior to November 8, 1946, and only this amount out of some $1,000,000 unpaid taxes is involved in this case.

The referee determined that the appellee had a valid mechanic’s lien upon the debtor’s property as of August 6, 1946, for the full amount of $15,515; that the Government has a valid lien as of November 8, 1946, for the amount of taxes to be determined; and that the appellee’s lien is prior in right to that of the Government for taxes.

The Government contends that the perfected liens of the United States for unpaid federal taxes are entitled to priority as against the earlier mechanics’ liens which it claims had not been perfected at the time of the adjudication in bankruptcy. The applicable statutes of Ohio as to mechanics’ liens are §§8310, 8314, and 8321 GC. Under these statutes the mechanics’ lien, after filing of the affidavit, relates back to the time of the performance of the first labor and the first delivery of material, and is effective as of that date against subsequent liens arising under state law. Ohio Savings Ass’n v. Bell, 25 Oh Ap, 84, 158 N. E., 548; Rider v. Crobaugh, 100 Oh St, 88, 125 N. E., 130. The lien is valid even if the affidavit is not filed until after the bankruptcy of the owner of the property. Section 67, Sub. b, Bankruptcy Act, Title 11, U. S. C. (1940 edition), Section 107, Sub. b, 11 U. S. C. A., Section 107, Sub. b. The Government concedes that Section 3466, R. S., Title 31, U. S. C., Section 191, 31 U. S. C. A., Section 191, which provides that in case of insolvency of any person indebted to the United States the debts due to the United States shall be first satisfied, does not apply in bankruptcy cases. Cf. Davis v. Pringle, 268 U. S., 315, 45 S. Ct., 549, 69 L. Ed., 974; United States v. Campsell, 9 Cir., 153 F. (2d), 731; In re Van Winkle, D. C. Ky., 49 F. Supp., 711. The priority of the Government is claimed to arise under Section 3670 and Section 3671, Title 26, U. S. C., 26 U. S. C. A. Int. Rev. Code, Sections 3670, 3671, which read as follows:

Section 3670. “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”
Section 3671. “Unless another date is specifically fixed by law, the lien shall arise at the time the assessment list was received by the collector and shall continue until the liability for such amount is satisfied or becomes unenforceable by reason of lapse of time.”

The referee held that since under Ohio law the mechanic’s lien is effective from the date of the first delivery of material or performance of labor it was effective on August 6, 1946, and therefore prior to the lien of the Government arising out of its assessments and demands made beginning August 14, 1946 and thereafter, prior to the time of filing the petition for reorganization.

It is a matter of federal law whether a lien created by state statute is sufficiently specific and perfected to raise questions as to the applicability of the priority given the claims of the United States by an act of Congress. United States v. Waddill; Holland & Flinn, Inc., 323 U. S. 353, 356, 357, 65 S. Ct., 304, 89 L. Ed., 294. If the Ohio law determines the effectiveness and date, the mechanic’s lien in the instant case was specific, attached to specific property, and was prior in time to the tax liens, for it dated from August 6, 1946. The tax liens of the Government were specific and complete on November 8, 1946, prior to the filing of the petition for reorganization, by assessment made under Section 3640, Title 26, 26 U. S. C. A., Int. Rev. Code, Section 3640, duly certified to the collector under Section 3641, Title 26, 26 U. S. C. A., Int. Rev. Code, Section 3641, and the lien had been properly recorded under Section 3672, Title 26, U. S. C., 26 U. S. C. A., Int. Rev. Code, Section 3672. The trustee took the property charged with these Government liens; Humphrey v. Tatman, 198 U. S., 91, 25 S. Ct., 567, 49 L. Ed., 956; York Mfg. Co. v. Cassell, 201 U. S., 344, 26 S. Ct., 481, 50 L. Ed., 782; United States v. Reese, 7 Cir., 131 F. (2d), 466; In re Capital Foundry Corp., D. C., 64 F. Supp., 885; but he also took the property charged with the mechanic’s lien.

The trustee was not a judgment creditor, a mortgagee, a pledgee, or a purchaser, and hence Section 3672, Title 26, U. S. C., 26 U. S. C. A., Int. Rev. Code, Section 3672, has no application.

The case therefore involves the priority of one lien over another, and Section 3466, R. S., Title 31 U. S. C., Section 191, 31 U. S. C. A., Section 191 and Section 104, Title 11, U. S. C., 11 U. S. C. A., Section 104, are not involved. We think the problem is not solved by the citation of the decision of the United States Supreme Court in New York v. Maclay, 288 U. S., 290, 53 S. Ct., 323, 77 L. Ed., 754; United States v. Texas, 314 U. S., 480, 62 S. Ct., 350, 86 L. Ed., 356; Illinois v. United States, 328 U. S., 8, 66 S. Ct., 841, 90 L. Ed., 1049; and United States v. Waddill, Holland & Flinn, Inc., supra. These cases did not involve bankruptcy proceedings, and therefore the priority provision of Section 3466 was applicable to these decisions. In Henderson v. Mayer, 225 U. S., 631, 32 S. Ct., 699, 700, 56 L. Ed., 1233, the court stated that the Bankruptcy Act was not intended to lessen rights which already existed “nor to defeat those inchoate liens given by statute, of which all creditors were bound to take notice and subject to which they are presumed to have contracted when they dealt with the involvent.” We find no decision of the Supreme Court holding that a mechanic’s lien effective from the date of performance of the work is subordinate in bankruptcy proceedings to a tax lien perfected after the work had been performed. The Bankruptcy Act itself specifically recognizes the situation which necessarily arises in the perfection of mechanics’ liens in the eleven states in which the lien by statutes is effective from the date of first performance. 2 Jones on Liens, 3d Ed., Section 1480. Under such statutes the date required in the affidavit as to the performance of the work can never be given until the work is completed, and hence the affidavit cannot be filed until after the time that the lien has attached. Section 107, Sub. b, Title 11, U. S. C., 11 U. S. C. A. Section 107, Sub. b, evidently taking care of this situation, states that the provisions of Section 96, 11 U. S. C. A., Section 96 (the preference section) to the contrary notwithstanding, “statutory liens in favor of employees, contractors, mechanics, landlords, or other classes of persons, and statutory liens for taxes and debts owing to the United States or any State or subdivision thereof, created or recognized by the laws of the United States or of any State, may be valid against the trustee, even though arising or perfected while the debtor is insolvent and within four months prior to the filing of the petition in bankruptcy or of the original petition under Chapters 10, 11, 12 or 13 of this title, by or against him. Where by such laws such liens are required to be perfected and arise but are not perfected before-bankruptcy, they may nevertheless be valid, if perfected within the time permitted by and in accordance with the requirements of such laws, except that if such laws require the liens to be perfected by the seizure of property, they shall instead, be perfected by filing notice thereof with the court.”

It was perhaps in recognition of the equitable considerations-in favor of sustaining mechanics’ liens and similar liens on. specific property that the Supreme Court reserved the question in United States v. Waddill, Holland & Flinn, Inc. supra, saying at page 355 of 323 U. S., at page 306 of 65 S. Ct.: “The question has not been expressly decided, however, as to whether the priority of the United States might be defeated by a specific and perfected lien upon the property at the time of the insolvency or voluntary assignment.”

Certain well-established legal considerations favor the sustaining of the priority of the mechanic’s lien even as against the lien for federal taxes. While bankruptcy is a creature of statute, proceedings in bankruptcy generally are in the nature of proceedings in equity. Bardes v. Hawarden Bank, 178 U. S., 524, 525, 20 S. Ct., 1000, 44 L. Ed., 1175. Moreover, mechanics’ liens are in a favored class because of the benefit which has been received by the property' improved, due to the work expended thereon. The mechanic’s lien has been created by statute in every state because of the legislative realization of the equity in favor of the mechanic resulting from an enhancement in value due to the expenditure of work or the employment of materials upon property, without payment therefor. Since the security has been enhanced in value, the creditors are not prejudiced by the existence of the lien. McClintic-Marshall Co. v. Ford Motor Co., 254 Mich., 305, 236 N. W., 792, 77 A. L. R., 807; Colp v. First Baptist Church, 341 Ill., 73, 173 N. E., 67, 71 A. L. R., 106. Cf. Davis v. Alvord, 94 U. S., 545. 547, 24 L. Ed., 283. The essential principle upon which the mechanic’s lien rests is that of unjust enrichment. It is uncontradicted in this record that the giving of a priority to the United States over the mechanic’s lien also gives the United States the enhancement of the value of the property which resulted from the work performed and the material supplied by the appellee.

The judgment of the District Court is affirmed.

      Under these sections every person who does work on or furnishes material for erecting or repairing a building has a lien upon such building to secure payment thereof, and upon the interest of the owner or lessee in the land upon which the building stands. The lien claimant is required within 60 days from the time of the last performance of labor or delivery of material to file in the office of the recorder of the county in which the labor was performed or the material furnished an affidavit showing the amount due, a description of the property, the name of the person to whom the labor or materials were furnished, and the name of the owner or lessee. The lien “shall be” a lien “from the date the first labor was performed, or the first * * * materials * * * furnished. * * *” Such a lien is preferred to all other liens upon the construction, improvement, or the land upon which they are situated which shall be either given or recorded subsequent to the commencement of the construction or improvement.


author: By WISEMAN, J.

text:
    KESSLER, ESTATE of, In Re.
    Ohio Appeals, Second District, Miami County.
    No. 446.
    Decided March 24, 1949.

      Ellis W. Kerr, Troy, for Edward Kessler, Administrator of thd Estate of Gaynor Kessler, appellee.
    Baird Broomhall, Troy, for Michael E. Norris, Administrator, d. b. n. of the Estate of Emma Kessler, appellant.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Probate Court of Miami County, Ohio.

Gaynor Kessler and Emma Kessler, husband and wife, residents of Miami County, Ohio, both sustained injuries in a common accident in the State of Florida in December, 1944. Both died as the result of said injuries within a period of thirty days after the date of said accident, the date of death of Emma Kessler being December 31, 1944, and the date of death of Gaynor Kessler being January 18, 1945. Both died intestate and without issue of their bodies.

During life, and on the date of death, Gaynor Kessler and Emma Kessler were the qwners of a joint and survivorship checking account in the Tipp Citizens National Bank in the sum of $4,150.73 and the owners of a joint and survivorship savings account in the Milton Federal Savings Association in the sum of $1505.00. The administrator of the estate of Gay-nor Kessler included the entire sum in said accounts in the inventory; and the administrator of the estate of Emma Kessler included one-half of said accounts in the inventory of her estate. The issue arose on exceptions to the inventories in both estates.

The matter was submitted to the court on an agreed statement of facts. The trial court found the entire proceeds of the checking account and of the savings account to be assets of the estate of Gaynord Kessler, from which finding and judgment this appeal is taken.

No factual question is presented. It is agreed that the accounts were created under a joint and suvivorship contract. The legal question presented is whether under joint and survivorship contracts the entire proceeds of said accounts, upon the death of Emma Kessler, passed to Gaynor Kessler, or whether, as contended by appellant, the administrator of the estate of Emma Kessler, one-half only in the proceeds of said accounts passed to Gaynor Kessler.

Appellant contends that §10503-18 GC applies which in part provides:

“* * * when the surviving spouse or other heir at law or legatee dies within three days after the date of death of decedent, or within thirty days after the date of death of such decedent if such death resulted from a common accident, the estate of such first decedent shall pass and descend as though he had survived such heir at law or legatee. * * *”

It is conceded that the death of Gaynor Kessler and Emma Kessler resulted from a common accident, and that his death occurred within thirty days after the death of Emma Kessler.

Appellant contends that this provision of the statute makes each party a survivor of the other as a matter of law and preserves to the estate of each the vested right which each had in the joint and survivorship account which they established by contract during their lifetime. We do not agree with this interpretation of the statute. The purpose of this statute was to prevent double inheritance. The effect of this provision of the statute is not to make each decedent the survivor of the other, and as a consequence, each decedent the heir of the other, but rather to deprive the second decedent from taking any part of the estate of the first decedent when death occurs under conditions set forth in the statute. In re Metzger, 140 Oh St 50, 42 N. E. (2d) 443. Furthermore, §10503-18 GC only affects the right of the second decedent to inherit any part of the “estate” of the first decedent. Ostrander v. Preece, 129 Oh St 625, 196 N. E. 670. This statute operates in the field of the law of inheritance and has no application to rights vested under contract law. The accounts in question never became a part of the “estate” of Emma Kessler, deceased.

It is well established in Ohio that where two persons create a joint account in a financial institution and contract that the balance in the account is payable to either or to the survivor upon the death of either, the ownership to such funds, upon the death of either, passes to the survivor by virtue of the contract. Berberick v. Courtade, 137 Oh St 297, 28 N. E. (2d) 636; Sage v. Flueck, 132 Oh St 377, 7 N. E. (2d) 802; Oleff, Admr. v. Hodapp, Gdn., 129 Oh St 432, 195 N. E. 838; In re Hutchison, 120 Oh St 542, 166 N. E. 687; Cleveland Trust Co. v. Scobie, 114 Oh St 241, 151 N. E. 373; Arthur v. Witmeyer, 39 Abs 505, 53 N. E. (2d) 915.

A distinction is clearly drawn between cases involving “joint account” and a “joint and survivorship account.” A different rule obtains with respect to joint accounts. A joint and suvivorship account at the time it is created carries a present vested interest and is not affected by the laws of descent and distribution. Oleff, Admr v. Hodapp, Gdn., supra.

Appellant cites and relies on the unreported case of Hitchcock v. Semple, decided April 8, 1934, by the Court of Appeals of Ashland County. A motion to certify was overruled by the Supreme Court. A careful examination of that opinion shows that a factual situation was presented respecting the character of the investment. The court’s decision was based on the finding of fact that the purchaser of the bonds gave instructions that the bonds should be registered in the names of the decedents. The bank, however, requested the bonds to be registered in the names of the decedents, or the survivor. The court properly found that the survivorship feature was added without authority, that a joint ownership was created, and in accord with this finding the court ordered one-half of the proceeds distributed to the estates of each of said decedent owners. That case is clearly distinguishable from the facts in the instant case.

Finding no error in the record prejudicial to the appellant the judgment is affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By SKEEL, J.

text:
    MARTIN, Plaintiff-Appellee, v. MARTIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21310.
    Decided February 7, 1949.

      Wilbur H. Brewer, Cleveland, for plaintiff-appellee.
    Albert D. Nesbitt, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J.

This appeal comes to this court on questions of law from a final order of the common pleas court overruling the defendant’s petition to vacate the decree of divorce and division of property in favor of the plaintiff entered against the defendant.

The plaintiff and defendant were husband and wife having been married October 27, 1910 at Phillipsburg, New Jersey. There were seven children born of such marriage, the youngest being Rosemary Martin, a minor of fifteen years of age at the time this petition was filed. The parties were the owners of the house and lot where they lived at 3914 Mapledale Avenue in the city of Cleveland. The plaintiff’s petition alleges that the defendant was the owner of bonds and cash in bank in the total sum of about $35,000.00 but the journal entry does not show that such allegation was in fact true.

The action was filed September 8, 1947. Service of summons was had upon the defendant on September 10, 1947. Shortly after service of summons, upon the plaintiff’s motion for temporary alimony, the defendant and his lawyer appeared at the Bureau of Domestic Relations on two separate occasions. The order for temporary alimony made on November 25, required the defendant to pay $75.00 per month and made the obligation for such payments retroactive to September 10, 1947.

During the time that these proceedings were in progress, counsel for the defendant testified that he called plaintiff’s attorney asking for an extention of time to file an answer and was told that such leave was unecessary. “Just get your answer in before trial.”

The case appeared in the legal news as an uncontested case for a considerable time prior to March 6, 1948, at which time the plaintiff with her counsel and witnesses appeared before the court, trial was had and on March 8th, a journal was filed, granting plaintiff’s petition for divorce and in a pretended attempt to divide the property between the parties and provide alimony for the plaintiff’s support, such journal entry allowed to the plaintiff all of the defendant’s property, that is, the home in which the parties had lived, all household furniture, all known available cash and also, ordered the defendant to pay $21.00 per week. The decree also awards the plaintiff the custody of the minor child of the parties, Rosemary Martin, age 15, although such child had been living with the father since the parties had separated and such child not being at the hearing was not given the right to express her wish as provided under §8033 GC, as amended effective January 1, 1946. The defendant’s attorney believing that his appearance at the Domestic Relations Department of the Court on behalf of the defendant in settling the question of temporary alimony would list him as counsel for the defendant, testified that his office missed the publication of the case on the uncontested divorce case active list because his name was not published as counsel for the defendant.

The record further discloses that the defendant’s answer was prepared and signed on March 1st, a week before the case' was tried, but was not filed until the 10th of March, two days after the divorce decree was entered. The fact that a decree was taken as an uncontested case was discovered by the defendant and a motion filed to vacate the decree on March 11th. The court overruled the motion on May 7th. An appeal was taken' from this order which was subsequently dismissed and a petition to vacate the decree of March 8th, was filed on June 5th, 1948. Upon hearing, this petition was dismissed and this appeal is founded upon such entry as the final order appealed from. The defendant appellant claims the following error:

That the judgment on the manifest weight of the evidence is contrary to law.

In matters dealing with family relations, the rules of pleading and other procedural matters should be liberally construed so that justice in the particular case may be done. The fact that a decree of divorce, which in effect provided for continuing jurisdiction of the parties, was entered at the term preceeding the filing of the petition to vacate such decree, particularly where a motion to vacate such decree was filed within the term, but not ruled upon until the same term in which such petition was filed, will not deprive the court of the right to vacate such decree if grounds be established warranting such action.

It is contended by the appellee that the court is without power to grant the appellant’s petition and relies for such contention upon the case of Parish v. Parish, 9 Oh St 534. An examination of this case and the supporting cases cited by the court does not support the appellee’s contention.

The syllabus of the Parish case provides as follows:

“A decree from the bonds of matrimony, although obtained by fraud and false testimony, cannot be set aside on an original bill at a subsequent term.”

It will be noted that this action was a separate bill in equity and not a petition to vacate filed in the original case. It must likewise be noted that the court on page 538 said:

“The statute of March 14, 1843, conferred jurisdiction in divorce cases upon the courts of common pleas, which was in force when these proceedings were had, provides that ‘no appeal shall be obtained from the decree but the same shall be final and conclusive.’ Curwen, 991. This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons * * * should never be reopened.”

It is clear that the court’s decision was based upon the fact that the action was in fact an attempt to attack collaterally the judgment of divorce in a separate proceeding and for the further reason that the statute prohibited a subsequent review of a decree of divorce once entered.

Since that case was decided the Constitution of the State of Ohio has been amended with respect to the jurisdiction of the Courts of Appeals. Section 6 of Article 4 as amended effective January 1, 1945, in part provides:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as amended may be provided by law to review, affirm, modify, set aside, or reverse judgments on final orders of boards, commissioned officers, or tribunals, and courts of record inferior to the Court of Appeals within the district * *

Before the amendment, this section provided in part—

The Courts of Appeals shall have “appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the Courts of Common Pleas, superior courts, and other courts of record within the district as may be provided by law * *

The Supreme Court in the case of Youngstown Municipal Railway Company v. Youngstown, 147 Oh St 221, in considering the amendment to Section 6 of Article 4 of the Constitution of Ohio said:

1. “Section 6 of Article 4 of the Constitution of Ohio as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Court of Appeals.”
2. “Unless and until there is such legislative action, the appellate jurisdiction of the Court of Appeals remains as it was at the time the 'amendment was adopted.”

The Court of Appeals therefore has been given jurisdiction to review, affirm, modify or reverse the judgments of the Court of Common Pleas, whenever its jurisdiction has been invoked as provided by law and such jurisdiction includes the right to reverse and set aside a decree of divorce when such decree has been granted in violation of the legal rights of a party.

In the instant case the defendant brought to the attention of the trial court the fact that the decree, which not only granted plaintiff a divorce but also, took from the defendant all his property of every kind and description which the record disclosed he then possessed, was taken before he had filed his answer and when it was known to the successful party that a defense was to be interposed. True, there was some delay on his part in presenting his pleading, but advantage taken because of this fact was called to the attention of the court with such dispatch that, under the circumstances, it constituted an abuse of discretion for the court to overrule the defendant’s motion to vacate such decree and to set the case for hearing as a contested ease, where both parties would have an opportunity of presenting evidence on the issues raised by the pleadings. The facts here presented are clearly distinguishable from the cases upon which the appellee relies which are as follows: Bascom v. Bascom, 7 Ohio, part 2, page 125; Parish v. Parish, 9 Oh St 534; Bay v. Bay, 85 Oh St 417.

In all of these cases there was a separate action seeking to set aside the effect of a divorce decree granted in a prior proceeding, while in the instant case, the appellant is seeking relief within the divorce action and through the regular procedural channels provided by .law.

The motion to vacate the decree was filed.within three days of the filing of the journal entry. It was not considered by the court until the next term of court and upon being overruled the petition, now here for review, to vacate such decree under §17631 GC, was filed without delay. The court having committed an abuse of discretion in overruling the defendant’s motion to vacate the decree taken against the defendant under the circumstance as hereinbefore set forth, the court likewise committed error prejudicial to the rights of the defendant in dismissing his petition to vacate such decree under the authority of §17631 GC, Paragraph 3 for “irregularity in obtaining a judgment or order.” See Baker v. Griffin, 79 Oh Ap 276.

For the foregoing reasons the judgment of the Common Pleas Court dismissing the defendant’s petition to vacate the decree of divorce and division of property and alimony is reversed and cause remanded for further proceedings according to law. Exc. Order See Journal.

MORGAN, PJ, HURD, J, concur.


text:
    GARLAND, Plaintiff-Appellee, v. GILBERT, et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2029.
    Decided April 30, 1949.

      Irvin Carl Delscamp, Dayton, for plaintiff-appellee.
    Baggott & Johnston, Dayton, for Albert Gilbert, Executor.
    C. A. Punkhouser. Dayton, for Evelyn Claus.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, Ohio, setting aside a separation agreement.

In the absence of a bill of exceptions appellants must rely solely on the record to exemplify any error of the trial court. The allegations and admissions made in the pleadings sufficiently present the legal questions in issue.

The record shows that Albert L. Garland, deceased, and Irene Garland, the plaintiff herein, were husband and wife; that on July 16, 1945, the husband sued the wife for divorce; that on July 23, 1945, they entered into a separation agreement wherein they agreed to an immediate separation.

The wife agreed to immediately vacate the home and to take with her her own personal clothing and jewelry and a few other personal belongings, and to immediately execute and deliver to her attorney a deed conveying all of her interest in said home to the husband. The agreement provided that the deed should not be delivered to the husband “until after the conclusion of the divorce proceeding now pending.” The separation agreement further provided that “When and if a decree of divorce is granted to the plaintiff in said action upon the same day such decree is filed for record in the office of the Clerk of Courts, Albert L. Garland shall pay to Charles J. Brennan, as attorney for Irene Garland, the sum of Three Thousand Dollars ($3,000.00), which shall be in full satisfaction of all claims whatsoever which said Irene Garland may have against Albert L. Garland growing out of their marriage, or in any manner pertaining to its termination.” The agreement further provided that each party thereby released the other from all other claims or obligations, rights and duties arising out of the marital relation.

The record shows that the divorce action was never heard due to the death of Albert L. Garland on August 21, 1945, and, as a consequence, no decree of divorce was granted or filed and the payment of Three Thousand Dollars ($3000.00) was never made by the husband. The parties did separate immediately upon the execution of said agreement. The deed to the home which was executed by the wife was never delivered to the husband. The estate of the husband was appraised at $10,417.44.

On September 3, 1945, the defendant-appellant, Albert Gilbert, was appointed executor of the estate of Albert L. Garland and on October 1, 1945, said executor tendered the sum of $3000.00 to the plaintiff which she refused to accept.

This action is brought against the executor of the estate of the husband and the legatees under his last will and testament.

The trial court found that “the parties did not intend that the provisions of the contract in issue cover the eventuality of Albert Garland’s death before he obtained a decree of divorce, and that the contract, consequently, fails because of impossibility of performance.” The court further found that the wife having received nothing of value from the husband, or his estate, to be returned by her, she is entitled to assert whatever rights she may have under the law against his estate. The court set aside the separation agreement and decreed it to be null and void and of no force and effect.

Appellants have not specifically assigned the errors of which they complain. From their brief, it may be reasonably deduced that the only error claimed is that the court erred in its finding that the parties did not intend that the contract should cover the eventuality of the husband’s death before he obtained a divorce decree and that the separation agreement was null and void because of impossibility of performance.

We agree with the judgment of the trial court. The payment of the total consideration moving to the wife was conditioned on the divorce being granted to the husband and the decree filed in the office of the Clerk of Courts. The husband was under no obligation to pay anything to the wife unless these two conditions were met. If the wife had contested the divorce action and had been granted the decree, the husband would have been under no obligation to pay anything to the wife. The appellants contend that the words “when and if a decree of divorce is granted to the plaintiff in said action” were used by the parties to fix the time of payment, and that the time of payment was accelerated by an act of God. With this we do not agree. While it is true, the time of payment was fixed as of the date of filing a decree granted to the husband, the payment itself was conditioned on the decree being granted to the husband. The condition was not fulfilled and could not be fulfilled by reason of the death of the husband. Clearly the parties did not provide against the eventuality of the death of the husband before a divorce decree was granted to him. The contract fails because of impossibility of performance.

The appellants contend that this construction fails to give due consideration to the last paragraph in the separation agreement wherein it was agreed that each party was barred from any and all rights or claims by way of dower, inheritance, descent distribution, allowance Jfor year’s support, right to remain in the mansion house, and all rights or claims as widow, widower, heir, distributee, survivor or next of kin, and all other rights or claims whatsoever in or to the estate of the other, whether real or personal, which may in any manner arise or accrue by virtue of said marriage, all such rights being released to the other and to the heirs, executors, administrators and assigns of the other. The point is made by the appellants that this provision indicates that the parties considered the eventuality of. death. This provision is usually found in separation agreements and is given full -effect when the facts and circumstances are such as to require its application. In the instant 'case it would be given effect if the divorce had been granted to the husband as contemplated and all the conditions had been met. This provision when considered in conjunction with the other provisions of the contract does not have the effect of eliminating or modifying the conditions under which the total consideration moving to the wife is to be paid.

Finding no error in the record prejudicial to the appellants the judgment is affirmed.

MILLER, PJ and HORNBECK, J, concur.


author: By GRIFFITH, J.

text:
    WILKINS et, v. TRIMBUR, Aud.
    Common Pleas Court, Trumbull County.
    No. 56378.
    Decided March 9, 1949.
    Guarnieri & Secrest, Warren, for plaintiff.
    David M. Griffith, Pros. Atty., Warren, for defendant.
   OPINION

By GRIFFITH, J.

Plaintiffs are duly appointed, qualified and acting members of the Board of Elections of Trumbull County, Ohio, having received their appointments from the Secretary of State of the state of Ohio for a period of four years, commencing March 1, 1946, and expiring February 28, 1950.

At the time of their respective appointments, plaintiffs’ compensation as such members of the Board of Elections was determined by the provisions of §4785-18 GC.

According to the 1940 federal census, the population of Trumbull county was 132,315, and no federal census has been taken since that time. At the time of plaintiff’s appointment, the city of Warren had a population, according to the 1940 federal census, of 42,837; the city of Niles a population of 16,273; and the city of Girard a population of 9,805: said cities being the only cities in Trumbull county, and all were registration cities.

On January 2, 1948, all precincts of Trumbull county were registration precincts.

On the basis of the population of Trumbull county and the registration cities, of Warren, Niles and Girard, the annual compensation of the plaintiffs, as determined by the provisions of §4785-18 GC then in 'effect at the time of their appointment, was $1,590.00; payable monthly at the rate of $132.50 per month.

Effective January 2, 1948, the General Assembly of the state of Ohio amended §4785-18 GC, and upon the basis of the formula set forth in said Section as amended, the annual compensation of the plaintiffs would have been increased to $2,320.00; payable in monthly installments of $193.33.

As a result of the informal ruling by the Attorney General, the two members of the Board of Elections whose terms began in March 1948 are now drawing the full amount of the compensation provided in §4785-18 GC as amended; whereas plaintiffs whose terms began on March 1, 1946 are receiving compensation on the basis of the provisions of §4785-18 GC in effect at the beginning of their terms.

On October 21, 1948, a voucher was presented to the defendant as auditor of Trumbull county, in the amount of $547.49, for each of the plaintiffs, which amount represented the accumulated back compensation since January 2, 1948, to which each of the plaintiffs would be entitled under §4785-18 GC as amended, effective January 2, 1948.

No part of said increase has been paid to the plaintiffs, and the defendant auditor of Trumbull county refused to issue his warrants upon the treasurer, payable to the plaintiffs for payments on the basis of said increase.

Article 2, Sec. 20, of the Ohio Constitution, provides as follows:

“Section 20: TEEM OF OFFICE, AND COMPENSATION OF OFFICERS IN CERTAIN CASES.
The General Assembly, in cases not provided for in this Constitution, shall fix the term of office and the compensation of all officers; but no change therein shall affect the salary of any officer during his existing term uhless the office be abolished.”

The question presented in the instant case is: Whether or not members of the Board of Elections of Trumbull county are public officers within the meaning of this Section of the Constitution; or whether they are merely employees of the state, whose compensation is not controlled by the Constitutional provisions denying the right to any change in compensation during their term of office.

All persons in the public employ are not classed as officers; and, while the general principles distinguishing ‘public officers’ from ‘public employees’ have been uniformly stated by the Supreme Court, the application of those principles have lead to a wide variety of opinions in connection with practically every phase of public employment.

In the case of State ex rel. v. Craig, 10 O. Dec. Page 577, the court, on November 30, 1900, held:

“Deputy state supervisors of elections, being responsible to the secretary of state as principal election officer, do not act in an independent capacity and for this reason lack the distinguishing characteristics of public officers. They are not officers, within the legal definition of that terms, and, though their jurisdiction may be coterminous with that of the county, they are not county officers or within Sec. I, Art. 10, of the constitution, providing that the general assembly shall provide by law for the election of such township and county officers as may be necessary. * *

This decision of the Common Pleas Court of Cuyahoga county was appealed and affirmed by the Supreme Court without opinion, in 64 Oh St, Page 588.

While the election laws in Ohio have been changed since this decision, and a new Constitution has been adopted by the state in the intervening years, the general principles upon which the court in that case based its opinion are still in effect; and the theory of the election laws remain the same.

Members of the Board of Elections are no longer called ‘Deputy State Supervisors and Inspectors of Elections’, but are now designated as ‘Board of Elections’ in the several counties; but the Secretary of State remains the chief election officer of the State, and §4785-1 GC, provides:

“There shall be in each county of the State a Board of Elections consisting of four qualified electors of the county, who shall be appointed by the Secretary of State, as representatives of the Secretary of State, to serve for the term of four years and until their successors have been appointed and qualified.”

The duties of the Board of Elections, as set forth in §4785-13 GC, indicates that they are limited almost exclusively to ministerial acts; such as providing proper facilities for the conducting of elections, printing of ballots, establishment of polling places, canvassing of election returns, and the issuance of Certificates of Election, all, however, under the supervision and direction of the Secretary of State.

These boards are required to make annual reports to the Secretary of State, and summarize the results of all elections, and perform such duties as are prescribed- by the Secretary of State in his rules.

When the board members can not agree on questions that are submitted to it, the Secretary of State is the authority that may decide; and his decision is final.

The Secretary of State may remove members of the board, or the clerk, or deputy clerk, under certain circumstances; and it is evident from these controlling powers that the Secretary of State has been clothed with by the Legislature that he should remain the sovereign function of the state, and responsibility for the elections rests squarely upon his shoulders, and the members of the Board of Elections are merely representatives of the Secretary of State. His supervision of their activities is complete. This lack of capacity for independent action is such that it deprives them of one of the necessary and essential characteristics of an officer within the meaning of the Constitution.

Public employees classified as deputies have been held not to be public officers within the meaning of that term. Deputy assessors are not officers; 15 O.N.P. (N. S.) 535; Assistant Prosecuting Attorneys are not officers, State ex rel. v. Taylor, 3 O.N.P. (N.S.) 505; Deputy County Treasurer is not a public officer, State v. Meyers, 56 Oh St, 340, but a mere agent of the treasurer; a city fireman is not a public officer, State ex rel. v. Jennings, 57 Oh St 415; the Clerk of the Board of Education is not a public officer, Board of Education v. Juergens, 2 Abs 58; Superintendent of a county infirmary is not a holder of public office within the meaning of the Constitution, 76 Oh St 210; a Clerk of the Board of County Commissioners is not a public officer, Supreme Court in State ex rel v. Commissioners, 95 Oh St 157 — In this case the Supreme Court pointed out that while the clerk of the county commissioners performed certain duties with respect to the public functional powers imposed upon him, they were not those which consti tuted a part of the sovereignty of the state; it was pointed out that the county commissioners are the officials who are in fact clothed with the sovereign power of the state, and the duties of the clerk are incidental thereto, and purely clerical.

Members of the Jury Commission are not public officers, State v. Kendle, 52 Oh St 346; the Health Commissioner is not a public officer, State ex rel v. Hamrock, 142 Oh St 290; 27 O. O. 236, a State Librarian is not a public officer within the contemplation of the Constitution, State ex rel. Skinner, 128 Oh St, 325; a Deputy Clerk of Probate Court is not a public officer, Warwick v. The State, 25 Oh St 21; Members of a County Building Commission are not public officers, State ex rel. v. Callow, 110 Oh St, 367.

From these decisions it is apparent that for one to be a public officer such a one MUST be clothed with independent capacity equal to the act of the sovereign state.

A review of these decisions indicates that members of the board of election are merely deputies, performing certain functions coterminous with the county in which they are appointed on behalf of and representatives of the Secretary of State and chief election officer, their functions are, in a large measure, clerical and ministerial, they are subject to the instructions and directions, and rules and regulations, and authority of the Secretary of State; their functions and duties are those of deputies; that the change of the name from ‘deputy state supervisor- of elections’, as provided in former laws, to that of ‘members of the Board of Elections’ has not changed the essential characteristics of the position; the functions of the office, therefore, lack that independence in the exercise of the sovereignty of the state necessary to characterize them as public officers.

IT IS THEREFORE, the conclusion of the court that the members of the Board of Elections, the plaintiffs in this case, whose term commenced on March 1, 1946, and expire on February 28, 1950, are not limited by the provisions with respect to compensation as provided in Article 2, Section 20, of the Constitution; and should be entitled to the additional compensation allowed to them, and intended for them by the Legislature in its amendment to §4785-18.


text:
    DAVIS, Plaintiff-Appellant, v. MOOR, et al., Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 3951.
    Decided January 25, 1949.
    B N. Murray, Columbus, for plaintiff-appellant.
    Paul R Gingher, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, sustaining a general demurrer to the plaintiff’s amended petition.

Plaintiff was riding as a guest in the automobile owned by the defendants and ’which at the time was being driven by Hazel M. Moor, one of said defendants. The plaintiff alleges she was seated in the front seat of the automobile to the right of the driver; that “an unleashed and uncrated dog belonging to said defendants, and up to that time concealed in a pile of soiled laundry and wearing apparel in the rear seat, suddenly sprang to the front of said automobile upon the neck of the plaintiff. Plaintiff states further that the driver, in attempting to remove the dog from this plaintiff, abandoned the steering gear, increased the speed of said automobile causing it to crash,” etc. Plaintiff alleges that her injuries and damages were caused by: “The defendant, Hazel M. Moor, wantonly abandoning the control of the automobile in which she and the plaintiff were riding”.

In an action brought under the provisions of §6308-6 GC, the guest must allege facts which on their face show wilfulness or wantonness, else the pleading is demurrable. The use of the word “wanton” is not alone sufficient to bring the action within the statute. Vecchio v. Vecchio, 131 Oh St, 59, 64; Universal Pipe Co. v. Bassett, 130 Oh St 567, 573; Thomas v. Foody, 54 Oh Ap. 423, 425.

The sufficiency of the amended petition rests on the charge of wanton misconduct which was defined in Tighe v. Diamond, 149 Oh St 520, at page 526, as follows:

“ ‘Wanton misconduct’ comprehends an entire absence of all care for the safety of others and an indifference to consequences. Higbee Co. v. Jackson, 101 Oh St, 75, 128 N. E., 61, 14 A. L. R., 131. It implies a failure to exercise any care toward those to whom a duty of care is owing when the probability that harm will result from such failure is great, and such probability is known to the actor.” (Emphasis ours.)

In our opinion the amended petition does not allege facts sufficient to constitute a good cause of action under the guest statute.

We have passed on the legal question raised, although upon examination of the record we do not find that the appeal is taken from a final order. An order sustaining a general demurrer to the petition without dismissing the action is not a final order.

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