author: By HORNBECK, J.

text:
    ROWE, Plaintiff-Appellee, v. ROWE et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4407.
    Decided October 3, 1950.
    Hamilton & Kramer, Columbus, for plaintiff-appellee.
    Abraham Gertner, Columbus, for defendant-appellant, Fred W. Rowe.
   OPINION

By HORNBECK, J.

In May, 1948, the defendant, Fred W. Rowe, was granted a decree of divorce from the plaintiff. The custody of the children of the parties, Georgia, aged eight, Judith Ann, aged five, and Fred W. Rowe, Jr., aged four, was awarded to Eva J. Brown, their maternal grandmother. In this respect the decree provided, “By further agreement of the parties it is ordered that the custody, care and control of said minor children shall be placed with Eva J. Brown, their maternal grandmother with reasonable rights of visitation in both parties.” The decree continues, “By agreement of the parties heretofore made, which agreement is hereby incorporated and made a part of this dcree of divorce, it is ordered that the defendant, Fred W. Rowe, shall pay to the said Eva J. Brown,” etc. (Then follows the amount to be paid.) The cause was then certified to the Juvenile Branch of the Common Pleas Court, Division of Domestic Relations, for all further proceedings in regard to the care, custody and control of the minor children.

On November 23, 1949, the defendant moved the court “for an order modifying the previous order of this court by awarding him the custody of the minor children of the parties.” The matter came on for hearing on the motion and the court heard a number of witnesses as to any conditions which had changed since the custodial order. The court refused the motion of the defendant. From this order the appeal is taken, and here two principal questions are urged:

First, that the award of the custody of the children to the mother of the plaintiff was without authority of law and void because not in conformity to §8033 GC;

Second, if the order was valid when made the court erred in not modifying it and awarding the custody of the children to the defendant.

Plaintiff cites and relies upon §8033 GC and cases, several of which were decided by this court. These cases are Dailey v. Dailey, 146 Oh St 93; Baker v. Baker, 85 Oh Ap 470; In re Duffy, 78 Oh Ap 16; Ludy v. Ludy, 84 Oh Ap 195; Luebkeman v. Luebkeman, 75 Oh Ap 566; Miller v. Miller, 50 Abs 561; and Tanner v. Tanner, 78 Oh Ap 178. Quotations from the cases are freely set out in appellant’s brief, characteristic of which is that from In re Duffy, 78 Oh Ap 18, 19:

“When it is found that the parent is a suitable person and the fitness of the home is not in dispute and such parent is able and willing to support and care for such child, the parent’s right is paramount to that of all other persons.”

This statement is true under the facts of that case, because of the provisions of §8033 GC, which expressly provides that upon hearing of testimony respecting custody of children the court shall take into account that which would be for their best interests, except that, “if such children be fourteen years of age or more, they may be allowed to choose which parent they prefer to live with, * * *, provided that if the court finds with respect to any child under eighteen years of age that neither parent is a suitable person to have the custody of such child the court shall, with the consent of the Juvenile Court, certify a copy of its findings * * *, to the Juvenile Court for further proceedings according to law, * * An examination of the cases cited discloses that in every instance the parents were in adverse relation to each other and both insisting that he or some person other than a parent be awarded the custody. In other words, in all instances one of the parents was asserting and demanding that he be given custody of his own children. It is in this situation where we and other courts have held that a child may not be taken from either or both parents unless it first be determined that he or they are unfit persons to have his custody. We know of no case and none is cited which holds that parents may not agree to waive their right to the custody of their children. This, of course, would not be controlling upon a court which would have the authority to determine custody, but it would be binding upon a parent who so agrees.

Our Supreme Court as early as Clark v. Bayer, 32 Oh St 229, held that an agreement between husband and wife that the custody of their child should be given to a third person was enforceable, subject only to judicial determination that the custodian was in every way a proper person to have the care, training and education of the child. That one during trial may waive a known right is a principle well recognized in the law, even in a criminal case where a constitutional right is involved. State, ex rel. Warner v. Baer, et al., 103 Oh St 585.

“As a general rule, a person may waive all personal rights or privileges to which he is individually entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution, provided the waiver does not constitute a violation of public policy.” 40 O. Jur. 1235.

At the time of the divorce decree it must be assumed that both parties knew of their rights respecting the custody of their children. They then acquainted the court with the fact that they had agreed and the nature of this agreement was such that both then relinquished their rights under the statute to have the care and custody of their children.

It is urged that no contract between the parties appears, but the language of the decree implies that there was a contract. The agreement is a contract supported by consideration moving from one party to the other.

We cannot say that the Common Pleas Court is so restricted in its jurisdiction that it may not take cognizance of, .and act upon, an agreement of parents affecting the custody of their children. The authorities and cases cited by appellee support the conclusion that such an agreement is binding on the parents. Nelson, Divorce and Annulment, Vol. 2, 2nd Ed. 201, 202, 203; 27 C. J. S. 1177; Slattery v. Slattery (Ia.), 116 N. W. 608; Connett v. Connett, (Neb.) 116 N. W. 658; Clark v. Bayer, supra.

The court had jurisdiction to make the custodial order and it was not void.

On the second question we would not disturb the conclusion of the trial judge that there had been no sufficient change in circumstances as to require modification of the custodial order. The judgment may well be supported by the factual development.

We find no other assignment of error well made. The order will be affirmed.

MILLER, PJ, and WISEMAN, JJ, concur.


source: Caselaw Access Project

author: By WATTERS, J.

license: Public Domain

text:
    LEEPER, Plaintiff, v. NIMER, Defendant.
    Common Pleas Court, Summit County.
    No. 175044.
    Decided September 5, 1950.
    Sacks & Subrin, Akron, for plaintiff.
    Harris, Wise, Roetzel, Maxon, Kelly and Andress, Akron, for defendant.
   OPINION

By WATTERS, J.

This matter comes before the court upon demurrer of the defendant to each- and every interrogatory propounded by plaintiff and attached to the plaintiff’s amended petition.

This subject has always been rather confusing to the courts generally and to this court in particular.

Interrogatories are filed by virtue of and under §11348 GC, entitled, “Annexing interrogatories to pleadings” which in part is as follows:

“Sec. 11348 GC — A party may annex to his pleading, other than a demurrer, interrogatories pertinent to the issue made in the pleadings, which interrogatories, if not demurred to. shall be plainly and fully answered under oath 4 * (Emphasis ours.)

In the court’s opinion the words, “pertinent to the issue made in the pleadings,” does not restrict the scope of the interrogatories to such as will enable plaintiff to properly plead his case on paper before trial.

We find in §11350 GC this — “On the trial such answers, so far as they contain competent testimony on the issues made, may be used by either party.”

This method was provided to take the place of the old bill of discovery procedure which was cumbersome and expensive. However even there the purpose was to enable a party to obtain such facts as might tend to prove his case, and not for the sole purpose of enabling him to plead his case properly on paper.

See Wigmore Section 1846, citing Combe v. London, 4 Y and C, 139.

See also Warren v. DeCote, 269 Mass., 415; 169 N. E. 505.

The court wishes to call attention of counsel to the very interesting discussion of this subject by Attorney Byron E. Ford of Columbus before the Ohio State Bar last May (1950) which appears in the Ohio Bar for August 7, 1950. He says in part on page 419:

“The test of an interrogatory is whether it is ‘pertinent to the issue.’ Like many words, the word ‘pertinent’ can be used with some degree of elasticity by the courts. Generally speaking, the phrase means that interrogatories must be directly connected with the subject matter of the action or defense. If the answer, if in the affirmative, will be helpful to the plaintiff in pleading or proving his case the interrogatory which elicits such answer is pertinent, and this is ordinarily true even though the answer may at the same time expose the adverse parties’ case. Graham v. Telephone Co., 2 O. N. P. (N. S.) 612, at p. 614.”

The authorities agree however that although the interrogatories may be directed toward answers which will aid the party putting them, in the preparation of his case proper, they cannot be put so as to elicit from the answering party the nature of his defense. Of course the answers to some questions may also somewhat disclose the answerer’s defense or claim.

Nor should an adverse party be compelled to answer interrogatories where the answers are within the knowledge of the interrogator.

In the final analysis the court has a great amount of discretionary power in the matter. After all a lawsuit should not be looked upon as a game or battle of wits. We should try to get at the ultimate facts, or at least those facts which are not in dispute, as is the theory in a pre-trial procedure. If we apply a reasonable and liberal interpretation, either side can use this method to advantage.

In this court’s opinion we should adopt a liberal policy but should not extend it to such an extent as to allow this procedure to take the place of calling the defendant for cross-examination on deposition.

See also 31 O. Jur, 849; Ward v. Mutual Trucking Company, 22 Abs, 636; International Art. Publ. Co. v. Greenbaum, 28 Ohio N. P. (N. S.) 349.

The real issue in Schuldt v. Assoc. Investment Co., 61 Oh Ap 213, cited by the defendant’s brief, was whether the plaintiff who had answered interrogatories put to him by the defendant could himself introduce said answers in evidence when the answers were made up of conclusions, hearsay and self-serving declarations, which answers would have been inadmissible and if given should have been stricken. The court held the answers offered by plaintiff should have been refused, and granted defendant a new trial because the court below admitted them under §11350 GC.

The court did say that the primary purpose of the statutes on interrogatories and discovery was to aid the questioner on his pleading, but did not say that was the only purpose.

There is no doubt that in the final analysis the answers if offered by either side at the trial to be admissible must be competent, and if the trial judge erroneously admits any answer, the question is reviewable.

The court will now apply to the various interrogatories the law as the court understands it to be, with exceptions to each side according to the ruling.

Where ordered to answer, the defendant is not restricted to a “yes” or “no” answer.

Where no specific reason is assigned for overruling or sustaining the demurrer, the reason is the court’s application of the law as I have found it to be.

INTERROGATORY NO. 1. “Did the defendant operate an automobile in a southerly direction on Greenwood Avenue, Akron, Ohio, on November 2, 1948, at or about 12:40 o’clock A. M., near the intersection of Copley Road, Akron, Ohio, which came into collision with an automobile proceeding westerly on Copley Road, which automobile had the plaintiff as one of its occupants therein?” Overruled.

INTERROGATORY NO. 2. “Did the defendant bring her automobile to a stop at the intersection of Greenwood Avenue and Copley Road before entering said intersection?” Overruled.

INTERROGATORY NO. 3. “Was the defendant charged by the City of Akron with the violation of the city ordinance requiring her to make a boulevard stop?” Sustained. • (See No. 7.)

INTERROGATORY NO. 4. “Did the defendant appear before Judge Thomas M. Powers of the Municipal Court of Akron with reference to the charge set forth in Interrogatory No. 3?” (Sustained. See No. 7.)

INTERROGATORY NO. 5. “Did the defendant enter a plea to the charge of failing to make a boulevard stop in violation of the ordinance?” (Sustained. See No. 7.)

INTERROGATORY NO. 6. “What was that plea?” (Sustained. See No. 7.)

INTERROGATORY NO. 7. “Did the defendant plead guilty before Judge Thomas Powers of the Municipal Court of Akron, Ohio, to the charge of failing to make a boulevard stop on November 2, 1948, before entering the intersection on Copley Road, Akron, Ohio?”

Sustained. This is a matter of court record within the knowledge of plaintiff and his counsel, and if so can be shown as part of plaintiff’s case in chief as an admission against interest. At the trial the defendant could not be called as upon cross examination and asked this question by plaintiff. Defendant could be asked it, however, on cross-examination after testifying on direct.

INTERROGATORY NO. 8. “Did the defendant secure from the plaintiff a release dated December 30, 1948, wherein the recited consideration was $25.00 and which release related to the collision of November 2, 1948?” Overruled.

INTERROGATORY NO. 9. “Was the Manufacturers Casualty Company the agent and servant of the defendant in procuring said release?” Overruled.

INTERROGATORY NO. 10. “Was Wayne S. Hiltner the agent and adjuster of the Manufacturers Casualty Insurance Company for the purpose of negotiating for said release with Max Leeper and for the purpose of settling the claim of Max Leeper against the defendant?” Overruled.

INTERROGATORY NO. 11. “Did the Manufacturers Casualty Company, as agent of the defendant, through Wayne S. Hiltner, its agent, pay to Max Leeper the sum of $25.00 for said release?”

Sustained. This is within the knowledge of plaintiff.

INTERROGATORY NO. 12. “Was said release executed on December 30, 1948?”

Sustained. This is covered in No. 8.

INTERROGATORY NO. 13. “Did the defendant through its agent prepare said release?” Sustained.

INTERROGATORY NO. 14. “Was said prepared release delivered to Max Leeper by Wayne S. Hiltner personally?”

Sustained. The plaintiff knows of this personally.

INTERROGATORY NO. 15. “Was said release sent in the mail by Wayne S. Hiltner to the plaintiff?” Sustained. The plaintiff knows of this personally.

INTERROGATORY NO. 16. “Did Max Leeper deliver said release in person to the defendant?”

Sustained. The plaintiff knows of this personally.

• INTERROGATORY NO. 17. “Was said release returned by mail from Max Leeper to the defendant?”

Sustained. The plaintiff knows of this personally.

INTERROGATORY NO. 18. “Did the defendant, through its agents, Manufacturers Casualty Insurance Company and Wayne S. Hiltner, prior to December 30, 1948, receive from Dr. Morris Kalmon, Second National Building, Akron, Ohio, a report of the physical examination of Max Leeper and of the injuries he sustained as a result of the accident of November 2, 1948?” Overruled.

INTERROGATORY NO. 19. “If the answer to Interrogatory No. 18 is ‘Yes,’ set forth the report verbatim.” Overruled.

INTERROGATORY NO. 20. “Does the defendant have in her possession or control the report' from Dr. Morris Kalmon on Max Leeper?” Overruled.

INTERROGATORY NO. 21. “Who has possession of that report at this time?” Overruled.

INTERROGATORY NO. 22. “Did the defendant, through her agents, Manufacturers Casualty Insurance Company and Wayne S. Hiltner, receive from any source whatever any other information as to the nature and extent of plaintiff’s injuries following the collision set forth in the petition, except the report from Dr. Kalmon set forth in the answer to Interrogatory No. 19?” Sustained.

INTERROGATORY NO. 23. “If the answer to Interrogatory No. 22 is ‘Yes’ state the name and address of the person or persons furnishing such information and when and where it was received?” Sustained.

INTERROGATORY NO. 24. “Did the defendant or any of her agents at any time after said collision interview the plaintiff personally with regard to the injuries that he suffered following said collision?”

Sustained. This information is within plaintiff’s knowledge.

INTERROGATORY NO. 25. “Did the defendant or her agents know on or before December 30, 1948, that Max Leeper had sustained a herniated cervical intervertebral disc following the collision?”

Sustained. This question assumes that the plaintiff did suffer the injury named.

INTERROGATORY NO. 26. “Did the defendant or her agents know the extent of the medical bills incurred by Max Leeper as a result of the collision set forth in the first cause of action?”

Sustained. This question obviously has to do with medical expenses plaintiff claims to have been put to after the release was signed and in connection with his injury as claimed now.

INTERROGATORY NO. 27. “If the answer to the prior question, Interrogatory No. 26, is in the affirmative, by whom was she informed?” Sustained. See No. 26.

INTERROGATORY NO. 28. “What injuries did the defendant or her agents know of or assume that Max Leeper had suffered as a result of the collision set forth in the first cause of action, at or before December 30, 1948?” Sustained.

INTERROGATORY NO. 29. “Did the defendant, through her agents duly authorized therein, receive a tender from the plaintiff of the consideration that he received for signing the release referred to in plaintiff’s second cause of action?”

Sustained. This information is within plaintiff’s own knowledge.

INTERROGATORY NO. 30. “If the answer to above is ‘Yes,’ when such tender received by the defendant?” Sustained. See No. 29.

INTERROGATORY NO. 31. “Was said tender refused by defendant, through her duly authorized agents, on the ground that the release was executed in good faith on the part of all parties concerned?”

Sustained. The answer to this could be no more than a mere legal conclusion.

Journal entry may be drawn accordingly overruling the demurrer as to Interrogatories Numbers 1, 2, 8, 9, 10, 18, 19, 20 and 21 respectively, and sustaining said demurrer as to Interrogatories Numbers 3, 4, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 respectively, with exceptions to both sides.


author: By WISEMAN, J.

text:
    REAMS et, Plaintiffs-Appellants, v. HENNEY, Admr., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4406.
    Decided June 5, 1950.
    Clifford L. Rose, Daniel E. Bevis, Columbus, for plaintiffs-appellants.
    Roscoe R. Walcutt, Columbus, for defendant-appellee.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, Ohio, which directed a verdict in favor of the defendant in an action for waste.

The plaintiffs-appellants are the children of Paulus Ziegler, who died in 1929 leaving a will in which he left a life estate in a piece of real estate to his wife, Maria Louise Ziegler, and after her death devised the property to the plaintiffs share and share alike. The widow died on the 26th day of January, 1948, and thereafter the defendant-appellee, Alfred J. Henney, was appointed administrator of her estate by the Probate Court of Franklin County, Ohio.

In the amended petition the plaintiffs alleged that while the life tenant was in possession of the real estate in question she committed waste by failing to keep said real estate in reasonable repair; that because of said waste they were damaged in the amount of $2,863.00. For their second cause of action plaintiffs allege that under the will of her husband Maria Louise Ziegler was given all his furniture and household goods for and during her natural life, which she had converted to her own use. The defendant in his amended answer set up several defenses, among which was the four-year statute of limitations, and a general denial.

It is contended by the plaintiffs, and the proof indicates, that this action was for “permissive” waste rather than “voluntary” waste. In Vol. 40, O. Jur., page 1329, voluntary and permissive waste are defined as follows:

“Voluntary waste is wilful waste, such as pulling down or razing houses, or cutting down timber trees. Permissive waste arises from the neglect, omission, sufferance, or permission of the tenant in failing to preserve or protect the estate of inheritance.”

The evidence shows that the life tenant failed during her tenancy to make reasonable repairs and allowed the property to become in a bad state of repair. There is no evidence to support the charge that she committed “voluntary waste.”

The plaintiffs’ action was instituted under the provisions of §10503-23 GC, which provides as follows:

“A tenant for life in real property, who commits or suffers waste thereto, shall forfeit that part of the real property of which such waste is committed or suffered, to the person having the immediate estate in reversion or remainder. Such tenant also will be liable in damages to the person having the immediate estate in reversion or remainder for the waste committed or suffered thereto.”

This section is applicable to both “voluntary” and “permissive” waste. The word “committed” refers to voluntary waste, and the word' “suffered” refers to permissive waste.

The trial court held that §11224 GC, Paragraph 4, was the applicable statute of limitations and that the action was barred in four years after the right of action accrued. In our opinion the trial court properly applied this statute of limitations.

The plaintiffs introduced evidence to show in detail the dilapidated condition of the premises at the time the life tenancy was terminated. The plaintiffs were unable to furnish proper proof of items of waste which had been suffered during the four year period immediately preceding the bringing of the action. There was some evidence as to the reasonable market value of the property after the termination of the life tenancy but there was no proof as to the value of the property at the beginning of the four year period immediately preceding the institution of the action. Plaintiffs sought to introduce testimony of a contractor as to the cost of placing the property in reasonable repair. An objection to the introduction of this evidence was sustained and the plaintiffs proffered this testimony. The proffered testimony is not confined to the cost of repair due to the waste suffered within the four year period. In applying the four year statute of limitations the trial court ruled that the plaintiffs’ right of action was barred for damages for any waste suffered prior to the beginning of the four year period immediately preceding the institution of the action. The plaintiffs not being able to offer proof as to the items of waste suffered within the four year period, the trial court directed a verdict for the defendant.

The plaintiffs assign as error: The judgment is not sustained by sufficient evidence and is contrary to law; and that the court erred in excluding evidence offered by the plaintiffs and in directing a verdict for the defendant.

The record shows that there was a failure of proof with respect to the second cause of action and it appears that counsel are not pressing plaintiffs’ right to recover for conversion of furniture and household goods.

The principal question for determination is whether the trial court properly applied the four year statute of limitations to the evidence in this case, and whether it properly excluded the evidence proffered by the plaintiffs. The action was instituted within four years after the death of the life tenant. The contention of the plaintiffs is that if the action is instituted within the statutory period of time after the death of the life tenant, they are permitted to show the condition of the premises at the termination of the life tenancy and will be permitted to recover damages by reason of any waste suffered during the entire period of the life tenancy. There is no case law in Ohio touching this precise question. Counsel for the plaintiffs cite the case of Prescott v. Grimes, 143 Ky. 191, 136 S. W. 206, which holds that:

“As it is the duty of the life tenant to so manage the property as to leave it in a reasonable condition of repair at the expiration of his tenancy, the plea of the statute of limitations cannot avail. The duty of the tenant is to leave the property in reasonable condition and repair at the end of the term, and this duty keeps pace with the life of the tenancy. It is an ever-present, existing duty, and when the court comes to enforce this duty, the inquiry is not when the waste occurred, or how long it has been permitted to run, but what is the extent thereof, and what sum will be required to make the necessary repairs. During the life of the tenancy there is no limitation to the time within which the action to compel reparation for permissive waste must be commenced.”

It is pointed out, however, that in Kentucky the statute gave a right of action only for voluntary waste. Any doubt on this question was set at rest in Fisher’s Extr. v. Haney, 180 Ky. 257, 202 S. W. 495, in which the court distinguished betweeen voluntary and permissive waste and the application of the statute of limitations to the two types of actions. In that case the third and fourth paragraphs of the syllabus are as follows:

“If a tenant for life commits voluntary waste, the remainder-men may, at once, under section 2328 of the Kentucky Statutes bring an action for damages, and limitation begins to run from the time when the voluntary waste complained of was committed; and under section 2515 of the Kentucky Statutes, the action must be brought within five years from the date the cause of action accrued.
“A cause of action to recover damages for permissive waste does not begin to run until the estate of the life tenant has terminated and the action may be brought within five years after that date to recover damages for permissive waste committed at any time during the life tenancy.”

The Kentucky statute which authorized an action to be brought for waste is as follows:

“If any tenant for life or years shall commit waste during his estate or term, or anything belonging to the tenement so held, without special license, in writing so to do, he shall be subject to an action of waste, shall lose the thing wasted, and pay treble the amount at which the waste shall be assessed.”

This section of the Kentucky statute authorizes an action to be brought for voluntary waste. It does not authorize an action to be brought for permissive waste. It is apparent that the provisions of the statute in Ohio and the statute in Kentucky are dissimilar in that the Ohio statute covers both voluntary and permissive waste, whereas the Kentucky statute only covers voluntary waste.

It is urged by counsel for the plaintiffs that the breach of duty of the life tenant is continuing and that if the action is brought within four years after the termination of the tenancy evidence is admissible with respect to any waste which has been suffered regardless of the time such waste occurred. On the other hand counsel for the defendant contends that under §10503-23 GC, the tenant is liable in damages for any waste committed or suffered and that since the statute makes the tenant liable the right of action accrues against the tenant at the time the waste is committed or suffered; that evidence as to items of waste committed or suffered prior to the beginning of the four year period immediately preceding the institution of the action would be inadmissible for the reason that the right of action to damages for such items of waste would be barred by the statute of limitations. This was the view of the trial court. The issues presented in this case do not require a discussion respecting the nature of the remedy given to the reversioner against a life tenant in Ohio prior to the enactment of Section 4177 R. S. on March 19, 1887 (now §10503-23 GC). On this matter see Allen v. McCoy, 8 Ohio 418; Stauffer v. Eaton, 13 Ohio 322; Crockett v. Crockett, 2 Oh St 181; Jenks, et al. v. Langdon, et al., 21 Oh St 362, Vol. 40 O. Jur. page 1328. A similar question was raised and decided in the case of Sherrill v. Connor, 107 N. C. 630, 637, 12 S. E. 588, in which it was held that an action for damages for items of permissive waste suffered prior to the beginning of the three year period of the statute of limitations could not be maintained. The court, on page 637, says:

“We think that his Honor- erred when he told the jury that, on account of the continuous character of the injury, no statute of limitations applied to the permissive waste. While we find no direct authority upon the question, the general principles governing the assessment of damages, and the application of them in other analogous cases, lead us to a conclusion very different.”

In that case, as in the case at bar, it was contended that to so construe the statute would require an action to be brought after each item of waste was committed or suffered and would cause a multiplicity of suits. The court, on page 638, in discussing this contention, stated:

“It being apparent that, from the nature of the case, the liability for permissive waste to the same building may be the subject of separate actions, where it is continued after one recovery, we can see no reason why his Honor should not have limited the extent of the recovery by the plaintiffs, laboring under no disability, such as prevented the statute from running to three years before the action was brought. They had the right to bring an action and adjust liabilities at any time after dower was assigned in 1866. There would have been no greater inconvenience in ascertaining the exact status of a building at the time of assessment heretofore, if an action had been brought, than would arise should the plaintiffs, in future, find, on bringing another action, alleging that the defendant had suffered buildings to be injured still more for want of repair since the damage had been ascertained in this action.”

In our opinion the plaintiffs’ right of action was barred four years after the right of action accrued; that the right of action accrued under §10503-23 GC, at the time waste was committed or suffered with respect to the right to damages for that particular item of waste; that the plaintiffs were confined in the introduction of the evidence to items of waste committed or suffered within four years immediately preceding the institution of the action. The trial court did not err in excluding the proffered testimony and directing a verdict for the defendant. The judgment of the trial court is sustained by sufficient evidence and is not contrary to law.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By THE COURT:

text:
    McCOY, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2047.
    Decided November 16, 1950.
    Drewey H. Wysong, Dayton, for plaintiff-appellant.
    Hon. Herbert S. Duffy, Atty; Geni., T. Vincent Martin, Eagle-ton P. Dunn, Asst. Attys. Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT:

This action originated in the Court of Common Pleas for Montgomery County as an appeal from an order of the Industrial Commission denying compensation to the plaintiff who was the wife of the deceased. The case came on for trial and at the close of all of the evidence the Court sustained the motion for a directed verdict in favor of the defendant and judgment was rendered thereon.

The errors assigned relate to the refusal of the Court to admit certain testimony. The record discloses that the plaintiff offered testimony concerning declarations made by the decedent about the manner in which and where the injury occurred. These statements were made to the plaintiff upon the decedent’s return home in the evening and also to another witness several days later. This testimony was properly rejected as not being a part of the res gestae, being merely the narration of a past transaction. Stough v. Industrial Commission, 142 Oh St 446; Stalak v. Industrial Commission, 26 Abs 305.

It is further urged that the Court erred in refusing to admit into evidence certain alleged dying declarations relating to the injury. This evidence was also properly rejected by the trial court. 17 O. Jur. 309, Section 339; State v. Harper, 35 Oh St 78.

We find no error in the record and find that the judgment is supported for the following reasons:

1. There is no testimony that the decedent worked at his place of employment at the time of his alleged injury.

2. No testimony in the record that the alleged employer regularly employed three or more persons making him amenable to the act.

3. There is no evidence in the record showing a causal relationship between the injury and death.

The judgment will be affirmed.

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


author: By SKEEL, PJ.

text:
    SECREST, Plaintiff-Appellee, v. SECREST a. k. a. Higgins etc., Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21981.
    Decided November 27, 1950.
    George D. Rager, A. T. Wincek, Cleveland, for plaintiff-appellee.
    George C. Mulvihill, Neil W. McGill, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law and fact.

The plaintiff filed her petition in the Common Pleas Court of Cuyahoga County, alleging that prior to May 11, 1945, she was the owner of a house and lot known as 5974 Deering Avenue, Parma Heights, Ohio; that before said date she entered into a verbal contract with the defendant, Elsie Lamona Higgins, then known as Elsie Lamona Secrest, and plaintiff’s son, John Walter Secrest, now deceased, the said son and defendant Elsie Lamona Higgins then being husband and wife, that in and for the consideration of support, maintenance and care during the remainder of her life (she then being 77 years of age) and at her demise to provide a decent burial and for the further consideration of $3000.00 she would and did deed said property to her said son and daughter-in-law. It is further alleged that said defendant, Elsie Lamona Higgins and plaintiff’s son, executed a mortgage to the Society for Savings to secure a loan of $4000.00 to raise the funds necessary to carry out the agreement and that after the property was deeded to the defendant Elsie Lamona Higgins and the plaintiff’s son, now deceased, this plaintiff continued to live with them as she had since the date of their marriage in 1936. That upon the delivery of the deed as above set forth this plaintiff’s son paid the $3000.00 as agreed.

She further alleges that her son died July 28, 1947 and that the defendant, Elsie Lamona Higgins thereafter married John Higgins (a party defendant herein) on October 30, 1948. That the defendant, Elsie Lamona Higgins inherited through the will of her deceased husband his one-half interest in said property so that by said inheritance she became the holder of the legal title thereof and after her marriage to John Higgins she, on November 4, 1948, deeded to him a one-half interest in said property. That the plaintiff continued to live and was furnished support and care after the death of her son by the defendant, Elsie Lamona Higgins, until her marriage to defendant, John Higgins, and that she continued to receive care and support as before, subsequent to said marriage, until May 7, 1949, when she was forcefully ejected from the property and since said date the defendants have failed to carry out their obligation of support, have removed her furniture from the property and now enjoy the exclusive use and benefit thereof.

That the conduct of the defendants constitutes a repudiation of the agreement between the plaintiff and her deceased son and the defendant, Elsie Lamona Higgins. Wherefore she seeks to cancel and set aside the deed of conveyance and asks judgment for use and occupancy of the property and for certain additional sums which she claims to have loaned her son and the defendant, Elsie Lamona Higgins.

The defendant, John Higgins, by separate answer admits his marriage to Elsie Lamona Secrest and the transfer to him by her of a one-half interest in said property. He denies that any force was used on May 7, 1949, to eject the plaintiff from the property and denies all of the other claims of the plaintiff. He then affirmatively alleges that in addition to other valuable considerations for the transfer to him of a one-half interest in said property he assumed and agreed to pay the balance due on the $4000.00 mortgage held by the Society for Savings against said property. Before trial he paid off this mortgage in the approximate sum of $3100.00.

The defendant, Elsie Lamona Higgins, by separate answer admits that she and her first husband received a deed for the property located at 5974 Deering Avenue, Parma Heights, Ohio, from the plaintiff and thereby became the owners thereof about May 11, 1945; that her first husband (plaintiff’s son) died July 28, 1947; that she married the defendant, John Higgins, as alleged by plaintiff and deeded to him a one-half interest in said property. This defendant specifically denies that she entered into an agreement prior to May 11, 1945, and alleges that the plaintiff’s deed of said property as above alleged was made pursuant to an agreement with her first husband the consideration for which was the payment of the balance due on a mortgage then owed the Society for Savings and $3406.17 paid in cash.

The evidence though in conflict in some particulars, establishes the following facts: In 1927 the plaintiff and her husband purchased the lot now known as 5974 Deering Avenue and constructed thereon a pre-fabricated Sears, Roebuck house at a total cost of about $8500.00; they lived in the premises until the death of her husband in 1933. Thereafter her daughter and her husband (Conrad) lived with plaintiff until 1936. The Conrads made the payments on the mortgage, paid the taxes and up-keep and furnished food and other necessities for the plaintiff. During the period her son-in-law, Conrad, borrowed $2500.00 from plaintiff which was never paid back and which debt was discharged in a voluntary bankruptcy proceedings. When the Conrads moved out in 1936 the plaintiff’s son, Walter, married defendant, Elsie Lamona Se-crest (now known as Elsie Lamona Higgins) and they went to live with plaintiff on about the same basis as the Conrads. At this time the plaintiff was granted a loan of $1600.00 secured by mortgage on the property, and her son Walter Secrest, became a co-signer on the note. This arrangement continued until the early part of 1945 when Walter Secrest and his wife were considering moving to the country. Plaintiff who was then 77 years old, offered to sell them the property “cheap” as an' inducement to stay. The price of $3000.00 which is admittedly low, was the plaintiff’s own proposition. The record shows the plaintiff testified as follows on this subject (pages 114 and 115):

“Q. When was that Nana? . . Well, do you know how long it was before you — let me put it this way: during the time Walter and Mona lived with you, to refresh your recollection, was there any discussion between Walter and Mona, in your presence, or directed to you, about their buying a place out in the country?
“A. Well, Walter said — yes, he mentioned, he said they wanted to buy a place in the country.
“Q. What did you say?
“A. I said, ‘Well, I don’t see why you want to buy a place in the country; I wouldn’t like to see you go out of here and I would sell you the place cheap.’
“Q. You said you would sell the place cheap?
“A. Yes.
“Q. And was Mona there?
“A. Yes, she was there.
“Q. What else was said? Tell the judge in your own words what was said there.
“A. Well, I said, ‘I’ll sell you the place for $3000.00.’ And he says ‘Alright, ma.’ And then he said, ‘and we will keep you as long as you live.’ And Mona said, T sanction that.’
“Q. Were those her exact words?
“A. Those were the exact words she said.
“Q. Tell us what happened next? Did you have any further conversation about selling the house and the agreement that Walter stated in Mona’s presence to keep you?
“A. That is about all, I guess.
“Q. Were you asked to go down to the bank at any time after that?
“A. Oh, sure. They set the date to go down to the bank.
“Q. Who is ‘they’?
“A. Walter and Mona.”

Neither the plaintiff nor Walter Secrest and his wife consulted a lawyer about this transaction but went to the Society for Savings bank where a sales agreement was drawn, which contract provided that it contained the entire agreement between the parties and in which no mention was made of the alleged obligation of support. The deed was prepared, an escrow agreement entered into and a loan of $4000.00 to provide funds with which to complete the sale was procured and the transaction concluded. The plaintiff received the proceeds of the loan, less the balance due on a mortgage held by the Society for Savings in the sum of $511.17 and the cost of the escrow fees, revenue stamps and recording fee, the check being in the sum of $3406.17. She deposited $2800.00 in a savings account with the Society for Savings upon which account Walter Secrest was given the right to draw with balance to the survivor. She also bought savings bonds, expending therefor about $200.00. The balance of about $400.00 is not accounted for in the record. The plaintiff thereafter gave $1000.00 to her grand-daughter and also loaned money to Walter Secrest for repairs to the house.

After this transaction was concluded the parties continued to live together just as they had for the nine years preceding the purchase of the property by Walter Secrest and his wife.

On July 28, 1947, John Walter Secrest died. By his will the defendant, Elsie Lamona Secrest inherited her husband’s one-half interest in the property whereby she became the sole owner of the property. Before the death of her husband, the defendant, Elsie Lamona Secrest had to give up her work as Supervisor of Nurses at City Hospital to take care of her husband who was sick for about a year before his’ death, and the plaintiff who had suffered a broken leg. All income therefore stopped, and the expense of John Walter Secrest’s last illness and that of his mother depleted the savings of the parties so that after the death of her husband, the defendant, Elsie Lamona Secrest, although she went back to work, had a hard time continuing to support the household. It was during this period that upon the insistence of the plaintiff, investigations of homes for the aged were made and an application for an old age pension was filed. The evidence of what took place about the pension is not material nor does it have any bearing on the issues here presented and will therefore not be further discussed, except to say that as a part of an appeal from the refusal to grant plaintiff a pension for the reason that she had sold her property to her son and daughter - in-law for less than it was in fact worth, the defendant, Elsie Lamona Secrest was compelled to sign a written agreement that she would furnish the plaintiff a home and support for the remainder of her life and a decent burial upon her death. The consideration for such agreement being the granting of some financial aid to the plaintiff.

The defendant, Elsie Lamona Secrest thereafter on October 30, 1948, married John Higgins, defendant herein, and shortly thereafter on Nov. 4, 1948, she deeded a one-half interest in the property to him, upon his agreement to assume payment of the balance due on the mortgage. The defendant paid off the balance due on this mortgage of about $3100.00 shortly after the one-half interest was deeded to him. The plaintiff continued to live with the defendants, being provided for as before, until May 7, 1949.

During this period of time the plaintiff was well treated as is disclosed by her own testimony.

On May 7, 1949, while she was getting ready to go to her grand-daughter’s home to stay a few days, because the Higgins’ were expecting company from out of the city, the plaintiff made some degrading and slanderous charges involving the character of Elsie Lamona Higgins to her husband, John Higgins. Mrs. Higgins was then pregnant and the defendant, John Higgins, was concerned lest the excitement caused by plaintiff’s charges would be harmful to his wife. He directed his wife to go to another part of the house and then put the plaintiff’s bundle of clothes which she had ready to take with her, out on the front porch. The plaintiff followed him to the porch. The defendant, John Higgins, then walked inside and locked the door. In about one-half hour the granddaughter’s husband, Mr. Jim Shumway, called for the plaintiff and took her away. Since that time the plaintiff has not returned to the house at 5974 Deering Avenue, nor have the defendants, or either of them, furnished the plaintiff with care or support.

The plaintiff does not allege nor is there any evidence which would even tend to support either active or constructive fraud on the part of the defendants in securing title to the property here under consideration. Likewise, there is not a bit of evidence that the defendant, John Higgins, knew of any promise of care and support made to the plaintiff either by her deceased son, John Walter Secrest, or Elsie Lamona Higgins. Until his death, the son carried out his promise to support the plaintiff. After his death the defendant Elsie Lamona Higgins carried on to the best of her ability. And since her marriage to defendant, John Higgins, even though he had no knowledge of any legal obligation on the part of his wife to furnish care and support to the plaintiff, yet the plaintiff was well provided for until her own conduct was responsible for her eviction from the house.

The claim of the plaintiff that her eviction constituted a constructive fraud upon which to found an action to rescind the sale of the property, cannot be sustained nor can it be said that the failure of the defendant, Elsie Lamona Higgins, to continue to carry out the obligation of support constitutes such default on her part or failure of consideration as to give the plaintiff the legal right to rescind the transfer of title.

The evidence discloses that the plaintiff was of sound mental capacity and knew exactly what she was doing. In fact, as indicated above, she, and not the defendant Elsie Lamona Higgins, and the plaintiff’s son, made the offer to sell which they accepted on her terms. Likewise there is no evidence, from the standpoint of the close relationship of the parties, that undue influence was used to induce the plaintiff to sell her property. The plaintiff offered to sell the property to the grantees “cheap” and set the price at $3000.00. She received almost $4000.00. As a part of this transaction the son, John Walter Secrest, now deceased, promised to continue to support the plaintiff during her life, just as he had been doing since 1936, although such promise was not recited in the deed as a condition of forfeiture. It seems equally clear that the defendant, Elsie Lamona Higgins gave assent to such promise and is now legally bound to continue the plaintiff’s support.

A conveyance, however, will not be set aside for the failure to keep a promise with respect to future conduct given as part consideration of an executed sale, where fraud is not claimed or established by the evidence.

In 6 O. Jur., Sec. 28, page 535 the author says:

“Executed Contracts Relating to Realty: In the absence of fraud, a deed for real estate will not be set aside on the sole ground that the promises and agreements which entered into its execution and which were to be performed in the future, have not been performed. So, equity will not interfere, ordinarily, where a grantor has seen fit to accept a promise on the part of his grantee for the performance of certain acts, without specifically providing in the deed that failure to perform shall be a condition of forfeiture or in some way affect the validity of the deed, or entitle him to a re-conveyance.” * * *

The same rule is applicable here as would apply if one were to make a sale of goods on credit. If the price is not paid when due, unless the sale was induced by fraud, the law is too well settled to require the citing of authority, that the seller’s remedy is an action for the price and not the return of the goods.

The cases relied upon by the plaintiff do not support her contention under the clearly established facts of this case. The case of Tracy v. Sackett, 1 Oh St 54, was one involving fraud and duress in dealing with a person of weak understanding and therefore liable to imposition. All of the other cases are to the same effect and are not helpful in coming to a correct conclusion on the facts as clearly established in the case before us.

We cannot lose sight of the fact, however, that this is a proceeding in equity in which the court must be guided by principles of equity giving consideration to the justice of the cause when taking into account the circumstances of the case and the relationship of the parties.

In the case of Massachusetts Mutual Life Ins. Co. v. Jeckell, 124 Fed. 2d, 339, the court held that in the absence of express contract a lien based on the fundamental maxims of equity may be implied and declared by a court of equity out of general consideration of right and justice as applied to the relationship of the parties and the circumstance of their dealing.

Likewise, in the case of Klaustermeyer v. Trust Co., 89 Oh St 143, 105 N. E. 287, the court impressed an equitable lien on certain securities where the circumstances were such that there was no adequate remedy at law. In this case a director of The Euclid Avenue Trust Company borrowed $5000.00 from the Garfield Bank of Cleveland and loaned it to the Trust Company upon an agreement that securities would be pledged to secure the debt. The loan was necessary because of the unsound condition of the Trust Company. When Klaustermeyer delivered the money to the Trust Company he was in a hurry and said he would pick up the securities later. Before he did, however, there was an assignment for the benefit of creditors. In a proceeding in equity seeking the delivery of the securities the court said:

“1. In a transaction founded on contract, express or implied, there being no adequate remedy at law for its breach, equity will presume the parties to have done what under the contract and in good conscience they should have done.
“2. When one party to such contract has fully performed his part of the contract for the benefit of the other party, the second party will not be permitted to defend against the first party’s right of redress in equity by a defense based on the second party’s own default. See also: Compton v. Wabash, St. L. Ry. Co. 45 Oh St 592, and Corpus Juris Secundum Vol. 53, p. 843 of parag. 4, sub-sec. c.”

It is clear from the facts that in deeding the property to the defendant, Elsie Lamona Higgins, and her son, now deceased, she was divesting herself, for all practical purposes, of all of her property, save that which she received from her son, to-wit, the sum of about $3400.00. The manner in which the plaintiff used this money for family purposes and equalizing the disposition of her property to those who were the natural objects of her bounty rather than holding it for her own personal security shows a complete assumption on her part that she would be taken care of the rest of her life, the same as she had for the past nine years. In other words, the undisputed facts all point to her complete reliance on her son’s promise for her future support.

The justice of the cause requires, therefore, that the obligation of care and support which is due her from Elsie Lamona Higgins, be carried out and to secure the performance of such obligation the rules of equity will impose a lien on the remaining interest of Elsie Lamona Higgins in the property, not only to the extent of what is reasonably necessary from the date of this decree but also for the reasonable value of her support since May 7,1949, and the necessary expenses of burial after she departs this life.

Such a decree does not create different obligations than those that were assumed by the parties when the plaintiff deeded the property to her son and Elsie Lamona Higgins. It preserves to the defendants the benefits derived for the purchase of such property and secures to the plaintiff the performance of the executory promise of support. The defendant, John Higgins, now being the owner of a one-half interest which interest was acquired by purchase without knowledge of the equitable lien of the plaintiff, is not effected by this decree. The defendant, Elsie Lamona Higgins, is protected in her interest acquired by purchase and inheritance, subject to the lien securing plaintiff’s right of support.

In the event that the parties are unable to agree within two weeks from the date of this entry on the amount that should be paid for the failure to provide the plaintiff support since May 7, 1949, until the date of this entry and to provide for such support thereafter either directly or in place thereof, the payment of a lump sum or monthly payments that seem consonant with the circumstances, the court will set the case for the taking of additional evidence from which to determine such amount as would be just and equitable under all the circumstances to provide such support.

Decree may enter accordingly. Exc. O. S. J.

McNAMEE, J, HURD, J, concur.


text:
    LIEBBRAND, Plaintiff-Appellant, v. BUTLER, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4436.
    Decided October 2, 1950.
    Draper, Lombardo & Morgan, Columbus, for plaintiff-appellant.
    Schwartz & Gurevitz, Columbus, for defendant-appellee.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, sustaining defendant’s motion to set aside the verdict and judgment entered thereon.

Defendant-appellee contends that the order appealed from is not a final order from which an appeal may be taken under §12223-2 GC. We do not agree. After §§11576 and 11578 GC, were amended, effective October 11, 1945, a motion for new trial is not only directed to the verdict but to the judgment entered on the verdict. In sustaining the motion for new trial the court not only sets aside the verdict of the jury, but also vacates the judgment. An order of the trial court sustaining a motion for new trial, in actions commenced after October 11, 1945, is a final order from which an appeal may be taken. In the instant case, the action having been commenced after October 11, 1945, the Code provisions in effect since the amendment control, and the order appealed from is a final order. For a more extended discussion of this question see McAtee v. Western and Southern Life Insurance Company, 82 Oh Ap 131, 81 N. E. (2d) 225; Haffner v. Schmeidl, 87 Oh Ap 143; Dyer v. Hastings, 87 Oh Ap 147, and State, ex rel. Simons v. Kiser, Case No. 684, Darke County, decided by this court on August 22, 1950, 58 Abs 257.

The plaintiff-appellant contends the court erred in sustaining defendant’s motion for new trial. The motion for new trial was based on five grounds. The first, second, third and fourth grounds of the motion were not considered by the court. The fifth ground was based on newly discovered evidence. The fifth ground was regarded by the trial court as dispositive and was sustained. The newly discovered evidence was presented to the court in the form of an affidavit, the substance of which is incorporated in the journal entry sustaining the motion for new trial. The error complained of appearing on the face of the record, the affidavit need not be brought before the court in the form of a bill of exceptions.

The newly discovered evidence was to the effect that plaintiff was adjudicated a bankrupt after the action was instituted but before trial. The trial court held that after adjudication and appointment of the trustee in bankruptcy, “to all intents and purposes in this suit the plaintiff became legally dead and has no further right to prosecute this action,” in his own name. Thereupon, the court vacated the verdict and judgment and ordered a new trial.

Did the trial court commit reversible errors? We think so. If the plaintiff transfers his interest in the action after the suit is instituted, the procedural steps which may be pursued are controlled by §11261 GC, the pertinent part of which provides as follows:

“On any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.”

The verdict of the jury had been rendered and judgment entered thereon before the court was apprised of the fact that the plaintiff had been adjudicated a bankrupt, and no effort has been made to comply with the provisions of §11261 GC.

In Cullen & Vaughn Company v. Bender Co., 122 Oh St 82, 170 N. E. 633, the fifth paragraph of the syllabus is as follows:

“The assignment by plaintiff of his interest in a controversy made during the pendency of a suit to recover is not a defense to the action, but the cause may proceed in the name of such plaintiff.”

The court, on page 87, states:

“Another element was injected into the case during the course of the trial. It developed that, after the suit was begun the Cullen & Vaughn Company assigned its right to recovery to the receivers of the R. L. Dollings Company. It is therefore contended that the Cullen & Vaughn Company is no longer the party in interest, and for that reason could not further maintain the action after such assignment. . This position is untenable, and we need only refer to a former decision of this court, which, if sound, is controlling and decisive. Lowry v. Anderson, 57 Oh St, 179, 48 N. E. 810. The syllabus reads:
“ ‘Upon the transfer by a plaintiff, during the pendency of an action, of all his interest therein, the action may proceed in the name of such plaintiff, or the court may allow the person to whom the transfer is made to be substituted; but such transfer is no defense to the action.’ ”

In Detroit & Ironton Rd. Co. v. Vogeley, 21 Oh Ap 88, 153 N. E. 86, the third paragraph of the syllabus is as follows:

“Under §11261 GC, if settlement between plaintiff, suing railroad for damage to her automobile, and insurance company, took place after commencement of action, cause could proceed against railroad in name of original plaintiff, notwithstanding subsequent assignment or transfer of right of action.”

On page 90 the court in its opinion stated:

“We think the second defense was insufficient and demurrable for the reason that it did not contain an averment that the alleged settlement between the plaintiff and the insurance company took place prior to the commencement of the action in the court of common pleas. If such settlement took place after the commencement of the action, the cause could proceed in the name of the original plaintiff, under §11261 GC, notwithstanding subsequent assignment or transfer of a right of action.”

In Bonding Co. v. Bank, 22 C. C. N. S. 177, the court in its opinion, on page 190, states:

'“Defendant urges, however, that the decision in Lowry v. Anderson, 57 Oh St 179, had been modified and distinguished by the several cases reported together under the name of Insurance Co. v. Carnahan, 63 Oh St, 258, and for that reason can not be regarded as authority here. We fail to agree with this contention. In some of the cases in Insurance Co. v. Carnahan it was found that the rights of the plaintiffs had been assigned before the commencement of the action, and that the action was therefore not brought in the name of the real party in interest. The actions were all brought by a partnership in the firm name and during their pendency one of the partners died and there was no proper revivor or substitution of the representative or successor in interest in place of the partnership. It was therefore held that the action was in abeyance and could not proceed. The case does not go to the extent of abrogating the provision of §11261 GC, for a continuance of the action in the name of the original party where transfer of interest is made after the commencement of the suit, nor can the fourth proposition of the syllabus as claimed by counsel for defendant be so construed.
“Its proper construction is rather that where an assignment had been made before suit it must be commenced in the name of the assignee, and when made after suit and revivor becomes necessary such revivor should be made in the name of the assignee.”

Again, on page 191, the court states:

“In this case there is no dispute that Healy, trustee, was the real party in interest at the commencement of the action, that the action never abated, that it properly proceeded in the name of the original plaintiff until the bonding company was afterwards substituted as plaintiff under authority of §11261 GC. The action was never in abeyance and never abated.”

This court had this question before it in Colley v. Village of Englewood, 78 Oh Ap 501, 71 N. E. (2d) 150. This court followed the eases heretofore cited and held:

“Where the plaintiff at the time of instituting his action owns real estate involved and, after the disposal of the action in the trial court and subsequent to the taking of an appeal, sells such real estate, the action may be prosecuted in the name of such plaintiff.”

The trial court relied upon, and the defendant-appellee now cites in support of his contention, Buckingham v. Buckingham, 36 Oh St 68, and Vogt, Admr., v. Rush D. Hiller Co., 44 Oh Ap 244, 184 N. E. 34. In the Buckingham case, action was brought by a bankrupt upon a cause of action which passed to his assignee. The Court held that in order to maintain the action it would be necessary for the bankrupt to allege certain facts which authorized him to bring the action in his name as plaintiff. In the Vogt case the court cites and comments on Lowry v. Anderson and Cullen & Vaughn Co. v. Bender Co. but fails to apply the principles of law laid down in those cases. Instead, the court cited and followed Phoenix Insurance Co. v. Carnahan, 63 Oh St 258, 58 N. E. 805, which held:

“If in such case one of the partners dies, the plaintiff firm is under a disability within the meaning of Revised Statutes, Section 5012, and the action is in abeyance and can not proceed without revivor by substitution of the representative or successor in interest, in place of the partnership, which revivor must be on motion of the party to be substituted, or by a conditional order, or upon a supplemental petition.
“A surviving partner can not be so substituted as the party in interest until he has conformed to the provisions of Revised Statutes, Section 3167 and 3169, inclusive.”

In that case the court applied the section of the Code relating to the revivor of an action upon the death of a party. However, this Court is of the opinion that the question presented here is not the same as was presented in the Carnahan case, and is controlled by different sections of the Code. The court in the Carnahan case cited the case of Lowry v. Anderson, and distinguished it on the basis of a different state of facts. On page 268 the court drew a distinction between transfers made before and after the commencement of an action, as follows:

“And the only difference in the effect of them was that, under the one first mentioned above, an action could not be legally begun and prosecuted except in the name of the H. B. Claflin Company, while under the second mentioned assignment the actions should have been revived by substituting the assignee of the interest as plaintiff. The case of Lowry v. Anderson, 57 Oh St, 179, does not apply here. The point of that decision was the transfer of interest, pending the suit, was no defense to the action, and that was the only point decided in the case. It was expressly stated in the opinion that the assignee might be substituted for the original plaintiff. The case does not touch the point which arises here, viz.: that the actions were not begun or prosecuted in the name of the real party in interest.”

In the instant case at the time the action was instituted the plaintiff was the real party in interest and had the right to prosecute the action. In the application of the provisions of §11261 GC, when the fact that the plaintiff had been adjudicated bankrupt and a trustee was appointed, was made known the trial court was required to exercise its discretion to either order the action continued in the name of the plaintiff or to allow the trustee to be substituted for the plaintiff. In our opinion this order can be made before or after judgment. Bennett v. Dayton Cemetery Assn., 87 Oh Ap 123, 93 N. E. (2d) 712. The trial court has not seen fit to exercise its discretion under the provisions of §11261 GC.

The facts presented to the trial court did not form a proper basis for granting the motion for new trial. The action of the trial court was prejudicial to the rights of the plaintiff-appellant. The judgment is reversed and the cause is remanded to the trial court with instructions to pass on the other grounds of the motion for new trial and to exercise its discretion under the provisions of §11261 GC.

Judgment reversed.

MILLER, PJ, and HORNBECK, J, concur.


author: By MILLER, PJ.:

text:
    DAVISSON, Admr., Plaintiff-Appellee, v. SPARROW et, Defendants-Appellants, and DAVISSON, Defendant-Appellee.
    Ohio Appeals, Second District, Preble County.
    No. 123.
    Decided November 16, 1949.
    Thurston F. Bittle, Eaton, for George D. Davisson, Plaintiff-Appellee.
    Landis, Ferguson, Bieser & Greer, Dayton, for Marian D. Ashley, Richard P. Davisson and Oscar Fulton Davisson, Jr., defendants-appellants.
    Dye & Ernst, Eaton, for Roscoe C. Sparrow, Grace Jones and Kathryn Ray, defendants-appellants.
   OPINION

By MILLER, PJ.:

This is a law appeal from the Probate Court of Preble County, Ohio. The action was brought by the administrator of the estate of Orna S. Davisson, seeking a construction of her last will and testament. The sole question presented is: Did Oma S. Davisson dispose of all of her property, or did she dispose of only her personal property and die intestate as to after acquired real estate? The pertinent provisions of the will are:

“SECOND: * * * All of my estate, which now consists of personal property, notes, money, stocks, bonds and other securities and which I may own at the time of my death, I authorize and direct my said executor or his successor act as trustee in the care and management thereof, and as said notes and other securities are paid off or collected, to reinvest the principal in safe, secure, interest paying investments, and the interest or income received from all my personal estate, * * * I give and bequeath to my husband, F. M. Davis-son, during his life, to be his property absolutely.
“THIRD: At the death of my said husband, F. M. Davis-son, the interest or income received from my said personal estate, I give and bequeath to my mother, Rose Jackson of Anderson, Indiana, and my aunt, Ida Bell Sparrow, * * * equally during their joint lives, and upon the death of either to the survivor during her life.
“FOURTH: At the death of said survivor, * * * I give and bequeath my entire personal estate aforesaid to said George Noel Wichael” (now George D. Davisson, Appellee,) “absolutely.”

The fifth item also disposes of “my said personal estate” under certain conditions.

Considering now the terms of the will it will be noted that the second paragraph provides:

“all my estate, which now consists of personal property, notes,” etc., “and which I may own at the time of my death.”

This clearly is the language of one who is attempting to dispose of all her possessions at the time of death. This intention must be given application if the succeeding paragraphs and the will taken as an entirety do not disclose a different intention. The intent of the testator shall control if it can be determined within the four corners of the will. 41 O. Jur. Sec. 469, page 600.

Continuing, the second paragraph provides:

“I authorize and direct my said executor or his successor act as trustee * * *, and as said notes and other securities are paid off or collected, to reinvest the principal in safe, secure, interest paying investments, and the interest or income received from all my personal estate, * * *, I give and bequeath to my husband, F. M. Davisson * * *.” (Emphasis ours.)

It should also be noted that the second item of the will uses the terms “personal property” and “personal estate.” These terms being different, a different meaning must have been intended. If different words are employed with reference to a given subject matter, it will be assumed that the testator intended a different meaning when he employed such different expressions. Page on Wills, Volume II, Sec. 933. A case with facts quite similar to the case at bar is that of West v. West, 213 N. Y. S. 480. Here the will provided:

“After my lawful debts are paid I give and bequeath to my aunt Mrs. Eliza Sheehan all my personal property to which 1 may die seized and possessed or to which I may be entitled at the time of my decease, including household furniture. I authorize her to sell and dispose of all and everything belonging to me and give title to same.”

The court held that even though the term “personal property” was used the testator intended to include real estate, the words “Personal property” being used in the sense of “my own property”; that the word “personal” should be omitted in order to carry out the testator’s intent. In 69 C. J. at page 373, in discussing the meaning of the word “estate” it is said:

"* * * The word includes real property, where such is the intention of the testator, although words descriptive of personalty accompany the word, as where it is coupled with other words sufficient to carry the whole personal estate; * * * ‘Personal estates’ will carry realty, where it is manifest from the will that such was the testator’s intention.”

We therefore conclude that when the testatrix used the term “personal estate” she did not mean “personal property.” The trial court held that the word “personal” was associated with the word “my” to show a quality of possession rather than, with the word “estate” to distinguish between personal property and real estate. While it may be conceded that technically the words “personal, estate” have reference only to personal property, still technical rules of interpretation cannot control if they are in conflict with the apparent intention of the testator. 41 O. Jur. Sec. 476, page 608. If we should adopt the appellant’s contention that “personal estate” meant personal property only, this conclusion would not be in accord with the strong presumption that the testatrix did not intend to die partially intestate.

We have been favored with the opinion of the trial court and are in full accord with the legal conclusions adopted therein and which we shall not restate.

We find no error in the record and the judgment is affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By BOLI, J.

text:
    DEXTER, f. k. a. TAYLOR, Plaintiff, v. TAYLOR et, Defendants.
    Common Pleas Court, Butler County.
    No. 64313.
    Decided December 4, 1950.
    Clem F. Imfeld and Clem F. Imfeld, Jr., Hamilton, for plaintiff.
    Edw. Everett Rice, Hamilton, for defendant.
   OPINION

By BOLI, J.

This action to quiet title to property in the Sixth Ward of the city of Hamilton, was filed September 13, 1949.

Prior to March, 1946, the plaintiff and defendant, Charles Taylor, were husband and wife and were joint owners of the property in question. In January, 1946, plaintiff, commenced an action for divorce and alimony against said defendant in this Court and since at that time defendant had abandoned his wife and two children and his address was unknown to plaintiff, service of summons was had upon him by publication. This publication did not describe or refer to the real estate in question although the petition specifically described the property and prayed that plaintiff be granted ownership thereof and that defendant be barred from all interest therein. In the present action plaintiff alleges the fact that the publication did not refer to or describe the real estate constitutes a cloud on her title.

In March, 1946, the divorce action was heard as an uncontested case and plaintiff was granted a divorce and was awarded as alimony defendant’s one-half interest in the property in question. Before and ever since that time plaintiff has continued to occupy the premises as her home.

In the present case plaintiff testified that when her husband left, he told her he was leaving and that she should get a divorce and take the property and that he would send her only $30 per month for the support of their minor child because she would have title to all the property.

Defendants, Charles and Beatrice Taylor, now live in California and, therefore, were served by publication in this case and have filed no answer or other pleading. However, an intervening petition has been filed by one Viva Faulk, wherein she alleges that on October 28, 1949, she purchased from the defendants, Charles and Beatrice Taylor, the undivided one-half interest in the real estate in question. That defendant Charles Taylor represented to her that he was the owner of an undivided one-half merest in said property and also represented that it was free of liens except a mortgage balance on the whole property and that the property had greatly increased in value and was a good investment. This, in substance, is all the matter contained in the intervening petition wherein she prays that the intervening petitioner be adjudged the owner of an undivided one-half interest in the property and that her title to same be quieted as against the plaintiff.

Thus, the intervening petitioner does not attempt to set up any defense to the petition, but is seeking relief only on the ground of representations made to her by defendants. In short, she is setting up an independent cause of action against defendants which has no relatipnship to the claim of the plaintiff.

This brings us to the first question for determination as to whether such an independent action may ,be the subject of litigation by interpleader as is attempted in this case.

An answer to this question is found in the case of Moore et al. v. Messengill et al, 170 A. L. R. 147, 41 S. E. Second 655 (North Carolina) where the syllabus reads:

“1. A third party who claims title to the premises involved in an action to remove a cloud upon title but who is not relying upon any source of title sought to be established in the action will not be permitted to interplead and have his independent claim of title adjudicated therein.
“2. A statute providing that when a complete determination of the controversy cannot be made without the presence of other parties, the Court must cause them to be brought in, and that when a person not a party to an action for the recovery of real or personal property has an interest in the subject matter and applies to the court to be made a party, it may order him to be brought in, contemplates only the making of such persons parties as may be necessary to a complete determination of the controversy between the original parties and does not authorize the ingrafting of an independent action upon an existing one which is in no way essential to a full and complete determination of the original cause of action.
“3. An independent cause of action which is unrelated to the claim of the plaintiff and not essential to a full and final determination thereof may not be litigated by interplea or cross action.”

Here plaintiff and the defendants, Charles and Beatrice Taylor, are the only parties necessary to a complete determination of the controversy between the original parties, and the independent action is not essential to a complete determination of the original cause of action and, therefore, in our opinion the matters plead in the intervening petition may not be the subject of litigation in this case.

And since the intervening petition sets up no defense to the petition and since the rights of the intervening petitioner in the property can be no greater than her grantor’s, it is obvious the Court can not grant relief prayed for by the intervening petition.

This then brings us to a consideration of the issue between the original parties which is: Did the Court in the original divorce action have jurisdiction to award defendant’s one-half interest in the real estate to plaintiff in face of the fact that: (1) the affidavit for service by publication did not contain the clause “and said case is one of those mentioned in §11292 GC,” as required by §11293 GC; and (2) the publication notice did not contain any reference to or description of the real estate?

The relevant part of the affidavit for constructive service reads:

. . that service of summons and copy of the petition herein can not be made within this state, on the defendant Charles E. Taylor, that his place of residence is unknown to the plaintiff, and by reasonable diligence by inquiry of his former associates and by correspondence cannot be ascertained; that this action is for divorce and other relief against the said Charles E. Taylor, and this affidavit is made in pursuance to law in said cases.”

The action was for divorce and the other relief referred to in the affidavit and prayed for in the petition was that plaintiff be granted ownership of the real estate and that defendant be barred from all interest therein. Paragraphs 7 & 9 of §11292 GC, both authorize service by publication in such cases. In our opinion the statement that “this affidavit is made in pursuance to law in said cases” is a sufficient compliance with the terms of §11293 GC;

But even if this be considered a serious defect, it could be at most voidable and not void and, therefore, not subject to collateral attack as is attempted in this case.

We come now to the more important question: Was the publication notice fatally defective in not containing any reference to or description of the real estate? In this state the last word on this subject is found in the case of Reed v. Reed, 121 Oh St 188, wherein the first and second paragraphs of the syllabus read:

“1. Service by publication is authorized by §§11292 and 11984 GC, in an action for divorce, alimony and equitable relief, and the trial court has power to make an alimony decree where the only relief sought is the appropriation of real property of the husband, situated within the county, to the payment of the amount that should be allowed for such alimony and support.
“2. Such an action is substantially one in rem, and when the petition specifically describes the real property in question, the court has jurisdiction upon completion of service by publication and hearing upon the merits, to decree the relief sought.”

This holding would seem to dispose of our case, but the facts are not identical. In the Reed case no question was raised as to the service by publication and we assume a description of the real estate was contained in the publication notice. Also in that case the address of the defendant was known and, therefore, having received a copy of the petition, he had notice that it dealt with the real estate in question and that his wife was asking for alimony out of it.

In its opinion the Court quotes with approval from cases in other jurisdictions and from the language used, we believe our Supreme Court’s decision would have been the same under the facts of the instant case. We will refer to this later in our opinion.

Directly in point is the case of Closson v. Closson, 215 Pacific 485 (Wyoming) 29 A. L. R. 1371. This action arose upon the petition of the husband to recover possession of land and upon the cross-petition of the wife to quiet title to the land which had been awarded her in a divorce action. There, as in our case, the real estate was described in the petition and the prayer of the petition was almost identical with that in our case.

There, as in our case, neither the affidavit for service by publication or the publication notice contained any reference to or description of the real estate.

And as in our case the husband made no appearance and the decree was granted, which recited that service had been had upon defendant by publication according to law and this defendant was in default for answer and the real estate in question was awarded to the plaintiff.

The Court held:

“1. Failure of the published notice in a divorce proceeding to state that a disposition of the property would be asked for does not render void a decree making such disposition, although the statute requires the notice to contain a statement of the object and prayer of the petition, where the statutes governing divorce authorize the courts to settle all questions concerning the property and children of the parties.
“3. A court having power over the principal matter in litigation has power also over its incidents.
“6. In the absence of fraud no question can be collaterally entertained as to anything fairly lying within the jurisdictional sphere of the court in a proceeding in which a judgment is rendered.
“7. Holding that a published notice giving the court jurisdiction of a divorce suit is sufficient also, as against collateral attack, to enable it to dispose of the property of the parties, including the homestead, does not violate the due process clause of the constitution.
“9. Where property sought to be subjected to a claim for alimony is seized within the state at the commencement of a divorce proceeding, the judgment will be valid to the same extent as in the ordinary action by a general creditor; not as a judgment in personam, but as a charge to be satisfied out of the property seized.
“10. Absence of actual seizure of property in possession of the wife in a proceeding by her for divorce against her nonresident husband does not prevent the entry of a judgment awarding the property to her.”

In its opinion after setting out the various statutes of the state concerning divorce, disposition of property, and so forth, and also the statutes in reference to service by publication, all of which closely resemble the statutes on the same subject in Ohio, the Court on page 1374 says:

“No more than a reading of the statutes is required to show that they contemplate that, at the time of divorce, the court shall adjust various rights of the parties springing out of the marital relation then dissolved. To this end the court is given authority to dispose of their property, provide for the custody of their children, and for the maintenance of the wife and children. The authority is given for the regulation of a status, and the statutes do not seem to contemplate a jurisdiction for the purpose of granting a divorce, and a want of jurisdiction for other purposes deemed by the legislature necessary to a complete regulation of the status. The apparent theory of the statute that the right to settle questions concerning the property and children of the parties is an incident of the jurisdiction of the divorce action seems fully to be borne out by the authorities.”

Also on page 1376 the Court says:

“It is clear, therefore, that the legislature may by statute make the disposition of property within the jurisdiction of the court an incident of a divorce action. It is clear, also, that our statute does this by unequivocal language. It is elementary that if a court has power over the principal matter it has power also over its incidents. It follows, as shown by the foregoing authorities, that, under the statute, the court’s jurisdiction in such a case to dispose of property is not lacking merely because the petition contains no reference thereto. The jurisdiction attaches pursuant to the statute. In this case the petition for divorce did refer to the property and pray for its disposition; but if these allegations were not necessary to an acquisition of jurisdiction to dispose of the property, we cannot see how the failure of the published notice to refer to them can be considered such a defect as would render the appropriate decree void on a collateral attack.”

In support of its holding, the Court also cites the case of Goore v. Goore 63 Pacific 1092 (Washington) where the attack on the divorce decree was direct and, under statutes quite similar, the Court held that the disposition of the property is a mere incident to the divorce and service by publication was upheld where neither the affidavit for such service nor the published notice described the property.

Also cited is the case of Twing v. O’Meara, 13 Northwestern 321 (Iowa) where the Court held that neither description of the property in the petition for divorce nor prayer that specific property would be set off to the wife as alimony was essential to the Court’s jurisdiction to decree to the wife as alimony property of the non-resident husband who had been served by publication only.

In its opinion in the Closson case, the Court calls attention to the fact that Twing v. O’Meara has been often cited with approval in the later Iowa cases of Rea v. Rea, 123 Iowa, 241, 98 N. W. 787, and Shipley v. Shipley, 187 Iowa, 1295, 175 N. W. 51, and by the Supreme Court of the United States in Pennington v. Fourth National Bank, 243 U. S. 269, 61 L. Ed. 713, L. R. A. 1917 F, 1159, 37 Sup. Ct. Rep. 282.

Other cases to the same effect are: McEwen v. McEwen, 26 Iowa 375; Harshberger v. Harshberger, 26 Iowa 503.

As will be seen from the cases cited, the reasoning upon which the holdings are based is that the statutes in reference to divorce authorize the regulation of a status and all matters embraced in that status and that, therefore, the right to settle questions covering the property of the parties is an incident of the jurisdiction of the divorce action. That since a court has power over the principal matter, it has power also over its incidents.

In short, the statute authorizes jurisdiction in divorce cases and where jurisdiction over that subject attaches it also attaches to all matters incidental to the divorce action and because of this, reference to the property of the parties in the petition or publication notice is not such a defect as would render a decree void on collateral attack.

This brings us back to the Reed case supra and why we believe our Supreme Court would have adopted the rule laid down in the cases heretofore cited, had the facts been identical to those in our case. In its opinion after citing a number of cases from other states including the Closson case, the Court on page 196 says:

“Many of the statutory provisions considered in the cases cited as to service by publication are strikingly similar to those in the state of Ohio. The Courts generally comment in the above decisions upon the fact that service by publication is specifically provided for in divorce cases (as is the case also in Ohio), and hold that, as the power to adjust the property rights of the parties is an incident to the power to grant the divorce, the court necessarily has the jurisdiction to dispose of real property within the state.”

Again after referring specifically to the decision in the Closson case, the Court on page 198 says:

“There is no essential difference in the relevant statutory provisions of the above cases and the statutes of Ohio, and hence the cases are not distinguishable, either upon the facts or upon the statutes which they construe.”

Also on page 198 the Court quotes with approval the case of Blackinton v. Blackinton, 5 Northeastern 830 (Massachusetts) in which Justice Holmes said:

“The whole proceeding is for the regulation of a status. The incidents of that status are various — some concerning the person, some concerning the support, of the petitioner or her child. The order to pay money is not founded on an isolated obligation, as in a case of contract or tort, but upon a duty which is one of those incidents. The status, considered as a whole, is subject to regulation here, although it involves regulations with another not here, because such regulation is necessary rightly to order daily life, and to secure the comfort and support, of the party rightfully living within the jurisdiction. It is quite true that these considerations may not suffice to give the decree extra-territorial force, and that, in general, courts do not willingly pass decrees, unless they think that other courts at least ought to respect them. But that is not the final test. We think that the statute was intended to authorize such decrees as that appealed from, and tacitly to adopt the rules as to service expressly laid down for divorce. * * * We are therefore of opinion that the decree was within the power of the court, and can be carried out against the defendant’s property within the jurisdiction, and against his person if he be found here.”

Finally on page 203 the Court says:

“The application for alimony was incidental to and a part of the divorce proceeding.”

Since the opinion follows the same line of reasoning found in the cases heretofore cited, these quotations from the Reed case do not leave much doubt as to what would have been the holding of the Court had the facts been similar to our case.

Another reason we hold this view is the fact that in the Reed case there was a direct attack upon the judgment while in the case at bar there is only a collateral attack. Thus, in this respect the facts in our case are much more favorable to the plaintiff because, it is generally recognized that a judgment may be subject to correction or reversal or appeal while the same judgment would not be subject to collateral attack.

Finally in the Reed case the defendant husband’s whereabouts were known and no doubt he received the publication notice and copy of petition, but why should one who desserts his family and conceals his whereabouts fare better at the hands of the law than one who is not guilty of such conduct?

Of course, in this case the record shows that granting of the divorce and awarding of the property to the wife was what the defendant wanted and what he suggested at the time he left so that it can not be claimed he had no knowledge of what was finally done.

Because the Court had unquestioned jurisdiction in the divorce case and because the división of property and the awarding of alimony are incidents of that, we find that the 3 failure pf the publication notice to mention those matters or to contain any reference to or description of the property is not such a defeat as would render void that part of the decree on collateral attack.

Therefore, the Court finds plaintiff is entitled to the relief prayed for and the title to the property will be quieted.


author: By FESS, J.:

text:
    DECKANT, Plaintiff-Appellant, v. CLEVELAND (City), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21867.
    Decided October 25, 1950.
    Coleman Kiss & Albert H. Kiss, Cleveland, for plaintiff-appellant.
    Robert J. Shoup, John G. Cardinal, E. Sheldon Wirts, Cleveland, for defendant-appellee.
    (CONN, PJ, PESS, J, and CARPENTER, J, of the Sixth District sitting by designation in the Eighth District.)
   OPINION

By FESS, J.:

Appeal on questions of law from judgment entered upon a verdict on behalf of the defendant.

Plaintiff was a passenger in an automobile operated in an easterly direction on St. Clair Avenue in the city of Cleveland, upon which the defendant maintained a double set of street car rails. Automobiles were parked along the southerly curb of the street. Plaintiff’s driver turned to his left onto the street car rails. The south rail was two inches higher than the brick pavement adjacent thereto for a distance of approximately 80 feet. It was raining and the street was in a slippery condition, and when the driver turned to his left to avoid the cars parked on his right, the front wheels of his car caught in the rail, skidded to the northerly side of the street and collided with a west-bound automobile. As a result of the impact, plaintiff was thrown out upon the pavement and sustained injuries.

In her petition plaintiff alleged that her injuries were caused by the negligence of the defendant in maintaining St. Clair Avenue in such condition as to constitute a nuisance in that the street car rail was maintained approximately two inches above the pavement; that such condition was dangerous and unsafe for vehicular traffic and that it had existed for many months. The answer was a general denial.

At the conclusion of the evidence upon plaintiff’s request, the court correctly charged the jury upon the duty of the defendant to keep its streets open, in repair and free from nuisance. But upon request of the defendant, the court gave the following instruction, which is assigned as error:

“1. The Court instructs you, as a matter of law, that the City of Cleveland is not an insurer of the safety of persons in the use of its streets. The City is not obliged to keep its streets in such condition that it is impossible for accidents to happen. The City cannot be held responsible for injuries caused by every depression, difference in grade, or unevenness in the streets.” (Emphasis ours.)

The court also, at defendant’s request, instructed the jury:

“2. The Court instructs you, as a matter of law, that the City cannot be expected to have its streets perfectly smooth and free from all unevenness and is not required to have them in a state of perfection; it is held to reasonable care only, and is not bound to anticipate improbable or unprecedented events and provide against their possible results.”

In his general charge, the court said:

“Under the law of the State of Ohio a municipality, and Cleveland of course is a municipality, is obligated to keep its streets open, in repair and free from nuisance. That is the statutory obligation which the City of Cleveland owes, that the City of Cleveland is obligated to perform for people in the rightful use of the streets. That does not mean that the City is an insurer. It does mean that the City must use ordinary and reasonable care to so maintain its streets as to be in a reasonably safe condition for the usual and customary mode of travel upon its streets.”

The duty resting upon municipal corporations, under §3714 GC, to keep their streets and other public ways open, in repair and free from nuisance, requires only reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable. Municipal corporations are not insurers of the safety of their public ways, and are liable only for negligence in creating a faulty condition in such ways, or in failing to repair, remove or guard against defects or obstructions thereon, after actual or constructive notice of their existence. The standard of care required to be exercised by municipal authorities in keeping streets in repair and free from nuisance is that care which persons of reasonable and ordinary prudence exercise under like circumstances and conditions.

Taylor v. Cincinnati, 143 Oh St 426; Cleveland v. Amato, 123 Oh St 575.

The charge complained of was taken from the language of the opinion in East Cleveland v. Wald, 103 Oh St 373, reading as follows:

“A municipal corporation is not an insurer of the safety of persons in the use of its streets and sidewalks. City of Dayton v. Glaser, 76 Oh St 471, and Gibbs v. Village of Girard, 88 Oh St 34.
“While a municipality must generally respond in damages for injuries caused by its negligence, acts, or omissions in connection with the streets and sidewalks under its care and control, it cannot be held responsible for injuries caused by every depression, difference in grade, or unevenness in sidewalks. (Cordish v. Bloom, Court of Appeals, Md., March 1st, 1921 [113 Atl. Rep. 578].)”

The charge as given is an apt illustration of the rule that although an excerpt from an opinion is not necessarily erroneous, the practice is not approved and may provoke error.

American Hard Rubber Co. v. Pierce, 18 O. C. C. n. s., 278, 284, 43 O. C. C. 32. It will be noted that the instant charge incorporated only a portion of the sentence quoted from Cordish v. Bloom, supra, and eliminated the qualifying phrase.

As in the case of a general charge, an excerpt therefrom will be considered in the light of the charge as a whole, a special charge will also be considered in connection with other special charges. Construction Co. v. Glass, 122 Oh St 398; Dietsch v. Mayberry, 70 Oh Ap 527.

Defendant asserts that viewed in the light of the other special charges and the general charge, the court correctly charged the jury on the issues and the giving of the charge in question was not prejudicial. In support thereof, defendant cites Bartson v. Craig, 121 Oh St 371, wherein it was claimed that a special instruction on contributory negligence was erroneous because it failed to include the rule of negligence as applied to'a child. The Supreme Court held that the requested charge constituted a correct proposition of law and if counsel for appellant desired an instruction on the standard of care required of a child, it should have been requested. Under the well-established rule an error of omission in a charge is not prejudicial.

But a charge ought not only to be correct, but to be so adapted to the case and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as they may find them from the evidence. Little Miami Rd. Co. v. Wetmore, 19 Oh St 110.

The issue for the jury to determine was whether the elevation in the rail, however slight, was such a defect as to show that the city failed to keep the street in repair and free from nuisance. The jury could well infer from the last sentence of the requested charge (without the qualifying phrase found in Cordish v. Bloom, supra) that the defect was not such a difference in grade or unevenness in the street as would make the city responsible. The error was not removed by the special charge given at the request of the plaintiff and the commendably correct general charge. The judgment is therefore reversed and the cause remanded to the Common Pleas Court for a new trial.

Reversed and remanded. Exc. Order See Journal.

CONN and CARPENTER, JJ, concur.