author: By BARTLETT, J.

text:
    SMITH, Plaintiff, v. MASSACHUSETTS BONDING AND INSURANCE COMPANY, and NATIONWIDE MUTUAL INSURANCE COMPANY, Defendants.
    Common Pleas Court, Franklin County.
    No. 194758.
    Decided January 29, 1957.

      Edward J. Utz, Cincinnati, for plaintiff.
    Ballard, Dresbach, Crabbe & Newlon, Charles E. Brown, Wilbur W. Jones, for defendant Nationwide Mutual Insurance Co.
    Clifford L. Rose, for defendant, Massachusetts Bonding and Insurance Company.
   OPINION

By BARTLETT, J.

This is an action for a declaratory judgment, wherein the plaintiff seeks a declaration of his right of insurance coverage, under the policies issued by each or both of the defendant insurance companies, for the payment of a judgment of $2500.00 rendered against the plaintiff, as the result of a motor vehicle collision in which plaintiff’s tractor was involved.

The case was submitted to the Court by agreement of counsel, upon the petition of the plaintiff, the answers of the defendant insurance companies, the briefs of counsel for the respective parties, and four exhibits, being a stipulation of facts, the lease agreement under which the plaintiff was hauling a load of steel for the Hancock Freight Lines, Inc., and the insurance policies in question issued by each of the defendant insurance companies.

On February 4, 1953, the plaintiff by written agreement, leased one of his tractors and furnished the driver to haul a load of steel for the Hancock Lines, Inc. in its trailer from Evansville, Indiana to Pittsburgh, Pennsylvania.

On February 6, 1953, while enroute with the trailer load of steel, plaintiff’s tractor developed mechanical difficulty, the two-speed axle of the tractor not operating properly.

At Hebron, Ohio, the driver called the plaintiff, who instructed him to bring the tractor to Cincinnati, Ohio, for repairs if it was in a drive-able condition. The driver unhitched the trailer from the tractor, left the trailer at the Buckeye Service Center at Hebron, Ohio, and left with the tractor for Cincinnati. The following day the plaintiff himself, with a new tractor, completed the trip with the load of steel on the trailer from Hebron, Ohio, to Pittsburgh, Pennsylvania.

Enroute from Hebron to Cincinnati, the driver was involved in a motor vehicle collision in Columbus, Ohio, while operating the tractor of the plaintiff Smith; and as a result of said collision, Willard Haywood filed an action in this court, being case No. 189,464, against William Martin, Jr., the driver, Clarence Smith, the owner of the tractor, and Hancock Freight Lines, Inc. The answer of Clarence Smith was filed in that case on April 10, 1954, by counsel who, in the instant case, represent Nationwide Mutual Insurance Company, and at the pre-trial conference on October 6, 1955, the same counsel appeared for Smith in the Haywood case before Harter, J. as noted “Farm Bur. Ins. on dead head coverage.” On February 9, 1956, Hancock Lines, Inc. was dismissed without prejudice as a party defendant on motion of Haywood, the plaintiff, the entry of dismissal being approved only by counsel for the plaintiff Haywood and counsel for Hancock Freight Lines, Inc.

On February 9, 1956, the Haywood case came on for trial in this court, William Martin, Jr., not having been served with summons and Hancock Freight Lines having been dismissed as a defendant. The trial proceeded against Clarence Smith, and upon an agreed statement of facts, the Court directed the jury to return a verdict of $2500.00 against Smith, which was accordingly done; and on April 20, 1956, judgment for $2500.00 was entered against Smith on said verdict.

At the Haywood trial present counsel for Smith appeared in his behalf with co-counsel, now representing Nationwide Mutual Insurance Company in the instant case.

On February 6, 1953, the tractor owned by plaintiff Smith, the operation of which resulted in the Haywood judgment, was insured with a policy of general liability and property damage insurance with the defendant, Nationwide Mutual Insurance Company, said policy containing, among other provisions, the following endorsement:

“It is agreed that such insurance as is afforded by the policy for bodily injury liability, for property damage liability and for medical payments with respect to the automobile classified as ‘commercial (non-trucking)’ applies subject to the following provisions:
“1. The insurance for bodily injury liability and for property damage liability does not cover as an Insured any person or organization, or any agent, employee or contractor thereof, other than the Named Insured, who is required to carry automobile liability insurance under any motor carrier law because of transporting property for the Named Insured or for others.
“2. The insurance does not apply:
“(a) while the automobile or any trailer attached thereto is used to carry property in any business;
“(b) While the automobile is being used in the business of any person or organization to whom the automobile is rented.”

The carrier, Hancock Freight Lines, Inc., had in effect a general policy of liability insurance with the defendant, Massachusetts Bonding and Insurance Company, said policy containing, among other provisions, the following endorsement, in part as follows:

“Whenever the word ‘insured’ appears in this endorsement, it shall be held to mean the motor transportation company, or private motor carrier named in the policy, its agents and employees, and also held to mean any independent contractor of said motor transportation company or private motor carrier, engaged in transporting persons or property, or providing or furnishing such transportation service, and also held to mean each employer of a private motor carrier authorized in its permit or registration against loss sustained by reason of the death of or injury to persons and the loss of or damages to property resulting from the negligence of such private motor carrier, its agents and employees.
“No condition, provision, stipulation, or limitation contained in the policy or any endorsement thereon, nor the violation of any of the same by the insured shall affect in any way the right of any person injured in person or property, within the State of Ohio, by the negligence of the insured, while operating as aforesaid, or relieve the Insurance Company from the liability provided for in this endorsement or from the payment to such person of any judgment within the limits set forth in the policy, but the conditions, provisions, stipulations, or limitations contained in the policy or in any other endorsement thereon shall remain in full force and be binding as between the insured and the Insurance Company.”

The policy of the Massachusetts Bonding and Insurance Company had been filed with the Public Utilities Commission of Ohio and the Interstate Commerce Commission of the United States, in accordance with the respective rules and regulations of said commissions; and regular interstate certificates were issued to Hancock Freight Lines, Inc., by each of said commissions.

The plaintiff Smith on February 6, 1953, did not have a permit from either of said commissions. It is agreed by counsel in the Stipulation of Facts, that a tractor operating on the highways of Ohio without having a trailer containing cargo attached does not require any certificate or permit from either of said commissions.

After the Haywood judgment for $2500.00 was rendered against him, the plaintiff Smith made a proper demand upon each of the defendant insurance companies to pay said judgment, each of which refused to do so; and thereupon, the plaintiff filed the instant case, asking for a declaration of his right of insurance coverage for the payment of the Haywood judgment, under each or both of the policies of said defendant companies, and for the allowance of attorney fees for services rendered in the Haywood case and the prosecution of the instant case for such declaratory judgment.

The decisive question then arises: was Martin, the driver of Smith’s tractor, engaged in the carrying out of the transportation project, undertaken for the carrier, Hancock Trucking Lines, Inc., at the time of the collision with Haywood’s automobile in Columbus, or was Martin on a mission for the sole benefit of Smith, in returning his tractor to Cincinnati for repairs, in compliance with the actual direction of Smith himself.

“1. Where a common carrier of freight by motor vehicle possesses Public Utilities Commission and Interstate Commerce Commission permits, leases in its operations, from an independent contractor, a vehicle, including the services of a driver, and such vehicle is operated under the carrier’s permits, such driver is deemed to be under the direction and control of the carrier, and, under the doctrine of respondeat superior, the latter is fully responsible for the actions and conduct of the driver within the scope of the carrier’s business.
“2. Where a servant, going on a mission of his own, makes a clear and complete deviation and departure from the scope of his master’s business, under the doctrine of respondeat superior, the master is not responsible for any acts of the servant occurring during the period of such deviation.
“3. Where a common carrier of freight by motor vehicle is the possessor of Public Utilities Commission and Interstate Commerce Commission permits, leases from another a tractor with a driver, combines the tractor with its own trailer, attaches its permit plates to the unit, sends the unit from its place of business to a city in another state with a load of freight, and instructs the driver to return to the carrier’s place of business, after unloading the freight at its destination, either with return freight for the carrier, if any, or with the unit empty, and where the driver after unloading the freight takes the tractor-trailer unit, represents it as his own and contracts with another party to haul freight for him to a point not covered by the permits, and where such action of the driver is for his own benefit and profit, without the knowledge, consent or participation of the original carrier, and, while on his way to deliver the freight he is hauling for his own benefit, the driver negligently causes an accident, the original carrier is not liable for his conduct, even though the accident occurs on a road upon which the driver would be traveling had he not departed from the original carrier’s instructions.” Thornberry v. Oyler, 164 Oh St 395.

“A common carrier of freight by motor vehicle, who possesses a certificate issued under Part II of the Interstate Commerce Act and employs an independent contractor, who does not possess such a certificate, to transport interstate freight in such independent contractor’s truck carrying the permit plates of the common carrier, is not liable for an accident caused by the negligence of the independent contractor driving his own truck where, at the time of such accident, the independent contractor had entirely completed the transportation for the common carrier, had no further obligation or duty toward such common carrier and was driving the empty vehicle entirely under his own direction and control at a point distant from the location where he had completely unloaded the freight which he had been hired to transport.” Simon, a Minor, Appellee, v. McCullough Transfer Co., Inc., Appellant, 155 Oh St 104.

“3. The purpose of Administrative Rule No. 4 of the Bureau of Motor Carriers of the Interstate Commerce Commission, as authorized by Part II of the Interstate Commerce Act, Title 49, Section 301 et seq., U. S. Code, to regulate interstate common carriers, is to make a carrier responsible to the public for wrongs done or injury inflicted by the carrier or those acting for it throughout the entire course of any transportation project undertaken by the carrier, and under such rule the employing carrier, as well as his independent contractor performing transportation for such carrier, may be held liable to third persons for injuries resulting from the negligent conduct of the independent contractor in such transportation.” Behner v. Indus. Commission of Ohio, 154 Oh St 433.

The Thornberry case, supra, establishes the principle that where the servant on a mission of his own, makes a clear and complete deviation and departure from the scope of his master’s business, under the doctrine of respondeat superior, the master is not responsible for any acts of the servant occurring during the period of such deviation.

When the plaintiff instructed the driver of his tractor to bring it back to Cincinnati for repairs, if in a driveable condition, and the driver unhitched the trailer from the tractor, left the trailer at Hebron and departed for Cincinnati, can it be said that the plaintiff’s tractor and its driver, while backtracking through Columbus, were in the business of the plaintiff’s master, the hauling of a load of steel to Pittsburgh, upon behalf of Hancock Freight Lines, Inc.? Certainly not. It reminds one of the trip of “wrong-way Corrigan.” The plaintiff’s tractor was going in the wrong direction to carry out his contractual obligation with his master, Hancock Freight Lines, Inc. It must be remembered that plaintiff’s contract with Hancock was limited to this one load of steel and its haulage one way only. On the return trip the tractor of the plaintiff and its driver would be dead-heading on a mission solely of the plaintiff’s. When the driver started to Cincinnati for repairs, there was no indication in the Stipulation of Facts that such tractor or driver were expected to return to Hebron and resume the mission of transporting the load of steel to Pittsburgh. Instead, the Stipulation of Facts discloses that the plaintiff substituted another of his tractors and he, himself, drove the new tractor to Hebron, hooked on to the trailer and hauled the steel to its destination.

While it is true, as stated in the Thornberry case, supra, that where a common carrier, such as Hancock Freight Lines, Inc., leases from an independent contractor, such as the plaintiff Smith in the instant case, his tractor and driver, and such tractor is operated under the carrier’s permits from the Public Utilities Commission and Interstate Commerce Commission, such driver of the tractor is deemed to be under the direction and control of the carrier; but in the instant case, the carrier, Hancock Freight Lines, Inc., had no opportunity to exercise direction and control of plaintiff’s tractor and its driver, when such tractor developed mechanical difficulty that made it impossible to proceed on the mission of hauling the trailer load of steel to its destination. The plaintiff, without the knowledge, consent or participation of his carrier, assumed actual direction and control of his tractor and its driver; and the driver obeyed the instructions of the plaintiff, his actual master, unhitched the carrier’s trailer from plaintiff’s tractor, and started in the opposite direction from his original destination with the load of steel, on his way to Cincinnati, to have plaintiff’s tractor repaired. The stipulation of facts does not show any intention of Martin, the driver of plaintiff’s tractor, to resume the mission of hauling the load of steel to Pittsburgh; and in fact, the plaintiff himself drove another tractor to Hebron, hitched the carrier’s trailer with its load of steel to the new tractor, and finished the delivery of the steel to Pittsburgh. By the time plaintiff’s tractor was repaired in Cincinnati, it is reasonable to assume that the plaintiff had completed the delivery of the steel to its destination. The repaired tractor was ready to be used on some other mission of the plaintiff in the transportation of property with another carrier.

There is no showing that the P. U. C. O. or the I. C. C. permits belonging to Hancock Freight Lines, Inc., were attached to the plaintiff’s tractor at the time of the collision with the automobile of Haywood in Columbus, which resulted in the judgment in question in favor of Haywood against the plaintiff. As stated in the Simon case, supra, the plaintiff and the driver of his tractor, “did not need them (the permits) at the time of the accident.” At that time, Martin, the driver of the plaintiff’s tractor, was not carrying out the mission of hauling a trailer load of steel to Pittsburgh for Hancock Freight Lines, Inc., in fulfillment of its contract with the plaintiff. Certainly, if these permits of the carrier were attached to the plaintiff’s tractor at the time of the accident, it would have been so stipulated or shown in evidence in the instant case, but no such proof is before the Court. It is more reasonable to assume that these permits of Hancock Freight Lines, Inc., were left with its trailer at Hebron; or otherwise, the plaintiff would be violating the law of both the state and federal governments when he hitched his other tractor to the carrier’s trailer and transported the load of steel to Pittsburgh. There is a legal presumption that the plaintiff had such permits attached to his tractor that finished the mission of hauling the steel to its destination, since the law required such permits be so attached on that mission.

On p. Ill of the Simon case, supra, Stewart, J., speaking for the Supreme Court of Ohio, says:

“Thus it follows that if Bolton (owner and driver of the truck) negligently injured plaintiff while the former was transporting coal in interstate commerce for defendant (Transfer Co., the common carrier of freight) and using defendant’s Public Utilities Commission and Interstate Commerce Commission permits, having none of his own, defendant would be liable for Bolton’s negligence, even though Bolton was an independent contractor. But, as said in the Behner case, such liability exists only throughout the course of any transportation project undertaken by the carrier.”

Can it be said that plaintiff’s tractor and its driver were on a transportation project for Hancock Freight Lines, Inc., when such tractor and driver at the time of the accident, were going in the opposite direction from the destination of the trailer load of steel, at the actual direction of the plaintiff who had withdrawn this tractor and driver from the mission of transporting the steel to Pittsburgh, and had actually substituted another tractor and driver, that completed the transportation of the steel to its destination.

Much stress has been laid on the cases of Wood v. Vona et al, 147 Oh St 91 and Leonard v. Murdock et al, 147 Oh St 103, in which the Supreme Court held in the Wood case, “in the movement of a vehicle coming from a repair shop, such movement is in the transportation service within the meaning of the policy (of the carrier), although such vehicle was not then being operated for the transportation of freight,” and in the Leonard case the same court held:

“in the movement of a vehicle going to a place for repairs, such, movement is in the transportation service within the meaning of the policy (of the carrier), although such vehicle was not then being operated for the transportation of freight.”

In the Wood case, supra, Bell, J., speaking for the majority of the court on p. 99, says:

“There is evidence in the record, which, if believed, would justify the conclusion that Vona (the owner and driver of the tractor) was acting under direct instructions of Glenn Cartage (the carrier) at the time of the collision. That narrows our question to what is meant by the following phrase, found in the Public Utilities Commission endorsement attached to and made part of the policy: ,T * * while operating any vehicle or vehicles of any kind, character or description in the motor transportation company service or private motor carrier service.’ ” (Emphasis supplied by Bell, J.).

On p. 101, Bell, J. continues:

“Applying the legal principle announced in the Mitchell case to the situation here presented, to-wit, that the colisión and damage occurred while the tractor, after being repaired, was being driven to a place to get the trailer and thence to the plant of Glenn Cartage to resume hauling for it, * *

In the Leonard case, supra, Bell, J. speaking for the majority of the Court on p. 108, says:

“For the reasons stated in the Wood case the contention of Ocean (Liability Insurance Co. insurer of carrier, Glenn Cartage) that the operation of the tractor at the time and place of the collision, as a matter of law, was not within the coverage of the policy, cannot be sustained.”

In the Leonard case, Murdock, an owner-operator of his own truck and trailer, entered into a verbal agreement with Glenn Cartage Co. for the haulage of freight under its Public Utilities Commission permit. The name of Glenn Cartage and the number of said permits were painted upon the Murdock truck. Murdock had hauled for Glenn Cartage for over a year under this general employment arrangement so that after the repairs to his truck, he would resume such hauling for Glenn Cartage. While in the instant case the plaintiff Smith had a contract to haul one load of steel to Pittsburgh only, and thereupon his relationship with the carrier, Hancock Freight Lines, Inc., ceased; and since the plaintiff Smith had completed the transportation of the load of steel with another tractor, there was no possibility of resuming hauling unless and until another contract was secured by plaintiffff Smith from Hancock Freight Lines, Inc.

The agreed judgment of $2500.00 entered against Smith, in favor of Haywood, was necessarily based upon the doctrine of respondeat superior which placed the driver Martin under the direction and control of Smith and within the scope of Smith’s business, as the master of such driver. Counsel for Nationwide Mutual Insurance Company in the instant case, under its policy of insurance with the plaintiff Smith, acted as his counsel in the Haywood case.

Administrative Order No. 1447, the Public Utilities Commission of Ohio, Rule 6 — Insurance, provides in part:

“No authorized carrier shall lease equipment unless or until the owner thereof shall have obtained and filed with the Public Utilities Commission of Ohio, a liability insurance policy or insurance certificate protecting the public against loss sustained by reason of the death or bodily injuries to persons and their loss of or damage to property resulting from the negligence of such owner or his employee, in amounts equivalent to the minimum amounts prescribed in the Commission’s Administrative Order No. 138, any supplements thereto, or any superseding orders thereof, while that equipment is not in the service of any authorized carrier and not covered by any authorized carrier’s insurance.

Without question the foregoing order of the Public Utilities Commission required the plaintiff Smith to obtain and file with the Commission just such a type of liability insurance policy, as he had with the defendant, Nationwide Mutual Insurance Company, and such a policy was intended to cover situations such as the accident in Columbus.

The Court finds and declares that at the time of the accident in Columbus, the plaintiff Smith’s tractor and its driver, Martin, were not engaged in the business of Hancock Freight Lines, Inc., and consequently said carrier was not responsible for the acts and conduct of said driver at the time in question; but at that time, said driver was on a mission for Smith in obedience to the actual directions of Smith himself, and, therefore, Smith was responsible for the acts and conduct of Martin, the driver of Smith’s tractor.

The Court, therefore, declares that the judgment of $2500.00 obtained by Haywood against Smith does not fall within the terms of the liability insurance policy carried by Hancock Freight Lines, Inc., with Massachusetts Bonding and Insurance Company, but said judgment does fall within the coverage afforded by such a policy held by Smith with Nationwide Mutual Insurance Company, since the tractor of Smith at the time was not being used to carry property in any business, and was not being used in the business of any person to whom it was rented.

Counsel for the defendant, Nationwide Mutual Insurance Company, having agreed that plaintiff was entitled to reasonable attorney’s fees for services rendered in the Haywood case and the instant case seeking a declaratory judgment, the Court allows such a fee, and if counsel is not able to agree on the amount of said fee, the Court will hear evidence to determine the amount thereof.


source: Caselaw Access Project

author: By BACON, J.

license: Public Domain

text:
    BARTELS, Extrx., Plaintiff, v. BARTELS et, Defendants.
    Probate Court, Meigs County.
    No. 16839.
    Decided February 27, 1956.

      Crow & Crow, Pomeroy, for plaintiff.
    O’Brien & O’Brien, Pomeroy, for defendants Harold Duckworth and Eura Largent.
    Cherrington & Cherrington, Gallipolis, for defendant, Walter Duck-worth.
    M. D. Webster, Pomeroy, for defendants Robert Duckworth, Sarah Duckworth, Wilbur Holter.
   OPINION

By BACON, J.

Action for construction of a will. Testatrix, Emma Duckworth, a teacher from 1903 until retirement several years ago, a spinster, died January 11, 1955. Her last will and testament was admitted to probate February 24, 1955, and is here set forth in its entirety.

IN THE NAME OF THE BENEVOLENT FATHER OF ALL, AMEN:

I, Emma Duckworth, of the Village of Syracuse, County of Meigs and State of Ohio, being of sound and disposing mind and memory, do make, publish and declare this my Last Will and Testament, hereby revoking and making null and void all other last Wills and Testament by me made heretofore.

First. My Will is that all my just debts and funeral expenses be paid out of my Estate, as soon after my decease as shall be found convenient

Second. I give, devise and bequeath to my Nieces and Nephews as follows: Ruth Bartels the sum of $200. Garnet Bartels the sum of $200.00 Oneida Roller, the sum of $200.00, Agnes Duckworth White, $200.00, Richard Duckworth $200.00, Carl Duckworth $200.00, Millard Duckworth $200.00, Genevieve Duckworth Schneider, $200.00, Charles Rittman $200.00, Violet Duckworth Zeiher, Sum of $200.00, Eura Largent, $200.00, Harold Duckworth $200.00, Emma Pauline Eynon $200. Robert Duckworth $200.00 Annaeta Stacey, $200.00, Sarah Duckworth $200.00 Marcia Kerns $200.00, Ella May Holter $200.00, William Holter, $200.00 Presbyterian Church of Syracuse, $100.00, Neida Gibbs, $100.00, Eleanor Kay Schweider $100.00,

THIRD: I give devise and bequeath to Oneida Roller, my Ohio Power Stock. Also my Cedar Chest and contents.

FOURTH: I give, devise and bequeath to my Sister, Sydney Bartels, and my two Brothers Albert and my Shares in Woodmere Cemetery

Stock, and my Fire Mist Stock.

FIFTH: I give, devise and bequeath to my Sister Sidney Bartels, all of my household goods, and Equipment, to do with as she sees ñt.

Sixth: I give, devise and bequeath to Walter Duckworth my Piano, absolutely and in fee simple.

Sevents: I give, devise and bequeath to My Sister Sydney Bartels, Albert Duckworth, and Robert Duckworth, my Two brothers, all of the rest and residue of my Estate, Share and Share alike,, in equal amounts, and in fee simple.

Eighth: It is my Will, that my Executrix shall pay the bequest in my WILL, from the Bonds made to me alone,. I do hereby Nominate and Appoint Sydney Bartels to be my Executrix, but if she should be deceased, at the time of my passing, then it is my WILL that Oneida Roller shall Serve as such Executrix.

In Testimony Whereof, I have set my hand to this, my Last Will and Testament at Pomeroy Ohio this 9th day of January in the year of our Lord, One Thousand Nine Hundred Fifty Four (1954

EMMA DUCKWORTH

The foregoing Instrument was signed by the said Emma Duckworth in our presence and by her published and declared as and for her Last Will and Testament, and at her request, and in her presence, and in the presence of each other, we hereunto subscribe our Names as Attesting Witnesses, at Pomeroy, Ohio, this 9th day of January A. D. 1954.

MARGARET SEIDENABLE resides at Pomeroy, Ohio

CORA B. ROBERTS resides at Pomeroy, Ohio

In addition to the apparent errors, those of including the Presbyterian Church in bequests to “Nieces and Nephews” and in not naming one of the two brothers intended under the 4th Provision, the pleadings and the evidence disclose many latent ambiguities. Those germane to this action are:

(1) Who is entitled to the bequest of $200.00 made to Charles Rittman? Extrinsic evidence disclosed there is no nephew of Emma Duck-worth by that name.

(2) Who is entitled to the bequest made to Sarah Duckworth, designated as a niece? Extrinsic evidence disclosed that the only niece by that name died without issue in 1951.

(3) Who is entitled to the bequest of $200.00 to William Holter, designated as a nephew? Extrinsic evidence discloses that there is no nephew of Emma Duckworth by that name.

(4) Who is the second of the two brothers referred to in the 4th Provision, the beneficiaries being named therein as “my Sister, Sydney Bartels, and my two brothers Albert and (blank)” — the name of the second brother being omitted? Extrinsic evidence was, of course, required to determine if possible the person intended.

(5) Who is the beneficiary last named in the 7th Provision, the beneficiaries named therein as “My Sister Sydney Bartels, Albert Duckworth, and Robert Duckworth, my Two brothers”? Extrinsic evidence discloses that Emma Duckworth had three sisters, two deceased, one living; and five brothers, one deceased in 1912, one deceased about 1918, one missing since 1925, two living at the time of the execution of the will and surviving the testatrix; that the only Robert Duckworth living at the time of execution of the will was nephew; that there was a brother who was usually known as “John Robert” “John R.” or simply “John,” that one of the five hereinbefore mentioned as deceased in 1912.

The general principles governing construction of wills were early established in Ohio, and one of the cases most cited as laying down the general rules is that of Townsend’s Executors v. Townsend, et al., 25 Oh Si 477, pertinent syllabi are:

1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

2. Such intention must be ascertained from the words contained in the will.

3......

4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.

5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, insofar as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.

Resolving the ambiguities in the same order as hereinbefore stated, being also the same order they developed in the will, the court finds as to ambiguity headed (1), the bequest to Charles Rittman: Although there is no nephew named Charles Rittman, there is a nephew named Charles Duckworth. He resides at Rittman, Ohio. The court has no difficulty in determining that there was a misnomer by the scrivener and that said Charles Duckworth is the beneficiary of the bequest of $200.00.

As to the ambiguity headed (2), the bequest to Sarah Duckworth: To decide that the deceased niece, Sarah Duckworth, was the intended beneficiary would result in the lapse of that particular bequest of $200.00, said niece having died in 1951 without issue. But lapse of a bequest in a will is not favored where reasonable interpretation of the language of the will may avoid such lapse. Judge Lemert in Rugg et al. v. Smith et al., 40 Oh Ap 101, laid down several excellent rules helpful here, for instance: Only in case of total and irreconcilable repugnancy can any provisions of a will be rejected, also: Court should give effect, if possible, to every provision of will and not try to find reason for avoiding or rejecting any portion thereof, and: in considerating doubtful clauses of will, court will ascertain intention of testator, as language of such clauses may reasonably be interpreted in particular case. Extrinsic evidence discloses there is one other Sarah Duckworth, a grandniece. Further, included in the paragraph headed “Nieces and Nephews” are bequests in the sum of $100.00 each to two other grandnieces, Neida Gibbs and Eleanor Kay Schneider, who were not designated by their correct relationship. Although Sarah Duckworth was bequeathed $200.00, Sarah was the name of Emma Duckworth’s mother, and plaintiff’s decedent, Emma Duckworth, also had a deceased sister named Sarah, which could well be a reason to differentiate between the grandnieces. And Emma Duckworth bequeathed $200.00 to Emma Pauline Eynon, who was no relation but a namesake.

While the reasoning for the difference in the sums bequeathed may touch the realm of conjecture, it is not conjecture that Emma Duck-worth attended the funeral of Sarah Duckworth, the niece, in 1951, whose name at time of death was not Duckworth but her married name of Stout. Unquestionably the testatrix was aware her niece was deceased at the time testatrix executed her will, and the court determines that Sarah Duckworth, daughter of Robert Duckworth, was the intended beneficiary of the bequest of $200.00.

As to ambiguity headed (3), the bequest to William Holter: There is no nephew of Emma Duckworth named William Holter. Extrinsic evidence discloses there is a Wilbur Holter, husband of Ella May Holter, and that there is a William Duckworth, a nephew of Emma Duckworth. William Duckworth will be the only nephew of testatrix disinherited nnipsg a construction be placed upon the will that he was the person intended. Included in the extrinsic evidence admitted it was testified that Emma Duckworth told a friend she did not intend to leave “Billy” anything. The time and place of the statement was not fixed. No other evidence was offered that “Billy” was disfavored by his aunt. Such vague statement is insufficient to overcome the presumption that obtains that testatrix did not intend to disinherit her nephew. Mokros v. Blackman, 312 Ill. App. 346, 38 N. E. 2d 514, In Re Hayes Will, 263 N. Y. 219, 188 N. E. 716. The presumption would be that testatrix intended all of her nieces and nephews would take, unless it clearly appears from the language of the will that her intention was otherwise. Schneller v. Schneller, 356, Ill. 89, 190 N. E. 121, The law favors William Duckworth for these reasons and the additional reason that the law favors blood relatives. Root’s Estate, 187 Pa. 118. Further, the presumption would be against the testatrix singling out William Holter as the only spouse of all the married nieces and nephews of Emma Duckworth to receive a bequest. Particularly where the evidence is totally lacking that William Holter was in any especial favor of the decedent.

The court therefore determines that the bequest of $200.00 to William Holter was actually intended for William Duckworth, that just as the scrivener erred in the surname of William’s brother, Charles, employing the erroneous “Rittman,” so she erred in William’s case, using the erroneous “Holter.”

By the rulings heretofore made it will be noted that the validity of each and every provision of the paragraph Provision 2nd of the will is sustained, that each and every living niece and nephew of Emma Duck-worth is provided a bequest of $200.00, in addition to bequests to three favored grandnieces included in that 2nd Provision headed “Nieces and Nephews” their correct relationship not being stated.

As to ambiguities under headings (4) and (5), the bequests under the 4th Provision, to “my Sister, Sydney Bartels, and my two Brothers Albert and (blank)” — and the bequests under the 7th Provision, the residuary clause, “to My Sister Sydney Bartels, Albert Duckworth, and Robert Duckworth, my Two brothers,”: the court will treat these ambiguities together because the reasoning governing ambiguity (4) to a large extent governs the determination of ambiguity (5).

Actually there was greater difficulity in determining the ambiguities under headings (2) and (3), than in resolving the testatrix’s intentions in the 4th and 7th provisions of her will. In (2) and (3) the description “Nieces and Nephews” was more remote from the names set forth, the beneficiaries were more numerous and rules of construction perhaps more difficult to apply. But in the 4th and 7th Provisions of the will, three equal shares are created, and, leaving out the names, the legatees are in each case, my sister and my two brothers. The descriptive language is used not once but twice.

Examination of the will itself reveals the testatrix assigned great importance to the ties of blood in naming her beneficiaries. The only non-relative named is Emma Pauline Eynon, namesake of Emma Duckworth. Apparently the scrivener was hazy as to the exact relationship Walter bore to the testatrix, it being noted that of 24 legatees Walter Duckworth is the only one not assigned some degree of relationship. It would appear the testatrix was influenced greatly by the degree of relationship each object of her bounty bore to her. Nieces and nephews received $200.00 each. Two of the three grandnieces received $100.00 each. The evidence is conclusive that the fruit of the womb of Sarah Duck-worth, Emma’s mother, were the most favored objects of the testatrix’s bounty.

Who were the two brothers testatrix intended as her beneficiaries under the 4th Provision? The facts are that Emma Duckworth had five brothers: John Robert, who died in 1912, James, who died in 1918, Arthur, who disappeared in 1924, Albert and Walter, living at time of execution of the will and surviving the testatrix.

Since about 1924, then, at any time the testatrix used the words “my two brothers” in connection with a gift or disposition of property— would she be referring to her two brothers known to be dead? One deceased brother and the missing brother? One deceased brother and one living brother? One living brother and the missing brother? Or would Emma Duckworth by those words be referring to her two brothers living, capable of receiving, appreciating and enjoying the gift or property?

For all practical purposes, since 1924, the spinster, Emma Duckworth, would have been compelled to state that her family consisted of her sister, Sydney Bartels, and her two brothers, Albert and Walter.

The defendant, Robert Duckworth, contends that, qualifying as the only living Robert Duckworth, that the testatrix meant to say in the 7th Provision, the residuary clause, “to My Sister Sydney Bartels, Albert Duckworth” my brother “and Robert Duckworth” my nephew. Such a construction would not only do violence to the word “brothers” but also to the word immediately preceding “two.” This would be contrary to the rule that no words employed by the testator may be ignored. Davidson v. Davidson, 2 Ill. 2d 197, 117 N. E. 2d 769. And that effect must be given to every word of a will. Dean v. Hart, 23 Abs 617. That all parts of the will must be construed together, and effect, if possible, given to every word contained in it. Townsend’s Executors v. Townsend, 25 Oh St 477. No language used by the testator is treated as surplusage or rendered void or insignificant. Stites v. Gray, 4 Ill. 2d 510, 123 N. E. 2d, 483.

As hereinbefore pointed out, the words “my Two Brothers” appear not once, but twice. It must be regarded as significant that both times they appear in connection with the words “my Sister, Sydney Bartels” said Sydney Bartels bearing the same degree of relationship to testatrix as Albert Duckworth and Walter Duckworth. So that to sustain Robert Duckworth’s contention would also do violence to the rule that words occurring more than once in a will are presumed to be used always in the same sense, unless a contrary intention appears from the text of the whole instrument, or unless the words are applied to different objects. 28 R. C. L. 222, 6 R. C. L. Sup. 1711.

Robert Duckworth offered evidence that the defendant, Walter Duck-worth, had received from Emma Duckworth certain real estate with the implication that such gift was an advancement of considerable value. The difficulty is that advancements do not apply where a decedent died testate. In fact, such evidence shows the brother, Walter, was a favored object of testatrix’s bounty and that it is not likely she would virtually disinherit him by her will. Particularly, where the evidence also shows that Emma Duckworth at one time or another stated she intended to leave “Bobby” (Robert Duckworth) the old homestead, but in fact during her lifetime deeded same to Albert Duckworth, her brother, which demonstrates again the affection for a brother prevailed over that for a nephew.

Conclusive it is that the sister, Sydney Bartels, and the two brothers, Albert and Walter, were the favored objects of Emma Duckworth’s bounty. Testatrix conveyed the old homestead to Albert, a house and lot in Gallia County to Walter, and a house and lot in Syracuse to Sydney, all without consideration other than love and affection for her brothers and sister. Further, testatrix purchased during the years 1944, 1945 and 1946 certain U. S. Savings Bonds, arranging by P. O. D. or alternate payee clauses that in the event of her death the proceeds become payable to her sister and two brothers. Sydney Bartels as to savings bonds in the total sum of $3,800.00, Albert Duckworth as to bonds in the total sum of $3,200.00, and Walter Duckworth as to bonds in the sum of $4,000.00.

Certain it is also that testatrix knew like the face of the clock the extent of her estate. The 8th Provision is significant, especially when it is considered that for all practical purposes decedent’s estate consisted of U. S. Savings Bonds in the sole name of Emma A. Duckworth in the total sum of $16,119.50. The testatrix specifically requests that the bequests contained in the 2nd Provision of her will (totalling $4,100.00) be paid solely from the proceeds of these bonds. Clearly she had in mind that there were bonds not in her name alone, and practically expresses her desire that the alternate payees, her sister and two brothers, should enjoy the proceeds thereof in the event of her death. By implication testatrix has practically mentioned the names Sydney Bartels, Albert Duckworth and Walter Duckworth in the 8th Provision.

The defendants, Harold Duckworth and Eura Largent, claim that Emma Duckworth meant a deceased brother under the 7th Provision of the will, that by “Albert Duckworth, and Robert Duckworth, my Two brothers,” she meant as to the latter their father, John Robert Duck-worth. This is unlikely. The certificate of birth of this brother, who was killed in a mine accident in 1912, in the records of the Meigs County Probate Court, defendant, Harold Duckworth’s Exhibit “A,” show R. J. Duckworth born December 1, 1877, father Adam Duckworth, mother Sarra Curtin. However, all witnesses who testified concerning him state he was known as “John,” “John R.” or “John Robert.”. Further, defendant, Walter Duckworth’s Exhibit “A,” a marriage record of the Meigs County Probate Court shows John R. Duckworth, born December 1, 1877, married Mary Grueser; and his Exhibit “B,” a Meigs County Birth Record, shows an unnamed child was born March 3, 1905 to John Duck-worth and Mary Grueser.

Harold Duckworth and Eura Largent claim operation of the anti-lapse statute, §2107.52 R. C., which gives to the issue of a legatee related to testator, when the legatee is deceased at time of the will’s execution or the death of the testator, the bequest involved. It is apparent however, that this case is governed by the rule laid down in Eckerle v. Hilerich, 9 Ky. L. Rep. 723, construing a like anti-lapse statute, deciding that a child of a person deceased at the date of the will is not entitled to take where the context shows that the naming of such deceased person in the will was mere inadvertence. Later Kentucky cases state that (construing an anti-lapse statute such as §2107.52 R. C.) before such statute can apply it must be first determined whether the testator meant to include persons dead at the date of the will in his description of the legatees therein. Fuller v. Martin 96 Ky. 500, 92 S. W. 315; Barnhill v. Sharon, 135 Ky. 70, 121 S. W. 983. Syllabus 4 in Kelley, ex’r. v. Talifer, et al., 31 Abs 602, enunciates the same rule, stating: The right of issue of a deceased child to take its parent’s share under §10504-73 GC (§2107.52 R. C.), is based upon the fact that a devise was in fact made to the deceased child of the testator.

There are other strong reasons why the court must find that Walter Duckworth was intended by Emma Duckworth as one of the two brothers in Provisions Four and Seven in her will. Degrees of relationship of a beneficiary exert some influence in determining testator’s intention for the purpose of construing his will. Runyan v. Rivers, 99 Ind. App. 680, 192 N. E. 327. The presumption obtains that Testatrix did not intend to disinherit one of her two surviving brothers. Mokros v. Blackman, 312 Ill. App. 346, 38 N. E. 2d 514. The presumption would be that she intended both of her two living and surviving brothers to take, unless it clearly appears from all the language of the will that her intention was otherwise. Schneller v. Schneller, 356 Ill. 89, 190 N. E. 121.

One of the attesting witnesses, Margaret Seidenabel, testified concerning what transpired at the execution of the will. Briefly, the scrivener selected by Emma Duckworth, sought use of the Court House lounge because Emma Duckworth’s physical condition precluded her climbing the stairs to the scrivener’s office. The testatrix recited to Cora Roberts, the scrivener, in the lounge the details concerning the bequests and the objects of her bounty. Cora Roberts made notes, went to her office, typed the will, and returned with it to the lounge. Testatrix and Cora Roberts conversed for about 20 minutes, but Margaret Seidenabel recalls nothing of the conversation. The will was then duly executed. Concerning the will it is significant that Margaret Seidenabel testified as follows: On direct examination:

Q. After Cora returned with the will, what did you observe at that time.

A. We sat and talked, she had the will, but I couldn’t say she read it.

Q. Emma had the will in her possession?

A. Yes.

Q. How long would you say Emma and Cora discussed the will in your presence?

A. I wouldn’t know the exact time but roughly around twenty minutes, something near that.

On cross examination by Henry Cherrington:

Q. You don’t know whether she read it or not?

A. She had it in her possession, and looked at it, I do know that.

On Cross examination by M. D. Webster:

Q. Then you were there when Miss Duckworth was looking over the will or talking to Mrs. Roberts prior to the time it was signed?

A. Yes.

Q. Do I understand that was about twenty minutes?

A. I imagine about that length of time.

Q. During this period of time did Miss Duckworth have that will in her hands?

A. Yes.

Q. Did it appear she was reading it?

A. She was looking at it.

The Court concludes that while Emma Duckworth looked over the will and apparently it satisfied her, she did not read it with sufficient concentration that she caught the errors of misnomer in the surnames of Charles Duckworth and Charles’ brother, William, the omission of Walter’s name in the 4th Provision, and the misnomer of the given name of Robert for Walter in the 7th.

It could be added that the will itself is evidence that the degree of relationship motivated the disposition made by Emma Duckworth of her estate, and while space prevents reference to all the testimony, suffice to say that almost all the other evidence is cumulative to substantiate the conclusions here reached. The court finds that the legatees of the 4th and 7th Provisions of the will are Sydney Bartels, Albert Duckworth and Walter Duckworth, share and share alike.

It appears that the parties, by reason of the decision in Estate of DiSanto, 142 Oh St 223, have stipulated and agreed that the U. S. Savings Bonds for which Emma Duckworth provided alternate payees are the property of each alternate payee as the case may be, and the court approves delivery of said bonds to the appropriate payee in each case.

As to the bank account in the sum of $1,100.00, deposited in the names of Emma Duckworth or Oneida Roller in The First Huntington National Bank of Huntington, West Virginia — it appears that same was not a joint and survivorship account, and the court finds that Emma Duckworth was the owner of one-half thereof at the time of her decease. The Executrix, Sydney Bartels, has a duty to collect as part of the estate of Emma Duckworth, deceased, one-half of the balance of said account as it stood at the time of the decease of Emma Duck-worth, and account for same as part of the assets of the estate for which she is fiduciary. The court fails to find sufficient evidence to establish any trust that would control this account or direct its proceeds other than as hereinbefore stated.

An entry may be prepared in accordance with this opinion with exceptions saved to all parties.


author: By HORNBECK, J.:

text:
    STATE, Plaintiff, v. VAN HOOSE, Defendant.
    Ohio Appeals, Second District, Clark County.
    No. 10960.
    Decided February 11, 1954.
    Hon. Stanley N. Husted, Pros, Atty., for the State.
    James E. Meals of Bayley, Meals & Taggert, for defendant and for the motion.
   OPINION

By HORNBECK, J.:

Submitted on motion of defendant for leave to appeal from a judgment and sentence of the Common Pleas Court. The motion is supported by an affidavit of the mother of the defendant and by the professional statement of Mr. James E. Meals of Bayley, Meals and Taggert who are counsel for the defendant for the purpose of securing the leave to appeal.

From the facts appearing, we are satisfied that the defendant, by his mother, made diligent effort during the period within which the appeal could have been perfected as a matter of right, to secure counsel to perfect an appeal. Unfortunately, through no fault of the mother, she was unable to accomplish her purpose within the 30 days subsequent to the sentence of her son.

Under the circumstances, the leave to appeal will be granted and entry may be prepared accordingly and submitted to the prosecuting attorney for approval before it is sent to the Court.

WISEMAN, PJ, MILLER, J, concur.


author: By HORNBECK, J.

text:
    RACETRACKS OF OHIO, Application of, In re: Respondents-Appellants, v. BUREAU OF UNEMPLOYMENT COMPENSATION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5537.
    Decided September 19, 1956.
    Albert G. Levine, Cleveland, for respondents-appellants.
    C. William O’Neill, Atty. Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court affirming a ruling of the Acting Administrator of the Bureau of Unemployment Compensation rejecting appellants’ application for classification of certain of their employees in employment, in occupation or industry as “seasonal.”

The facts essential to the appeal are set forth in a stipulation of the parties in lieu of a bill of exceptions. .

The section of the Code involved is §4141.33 R. C., which, so far as applicable, reads:

“(A) Seasonal employment means employment in an occupation or an industry which because of climatic conditions or because of the seasonal nature of such employment it is customary to operate only during regularly recurring periods of less than 36 weeks in any consecutive 52 weeks. Any employer who claims to have seasonal employment may file with the administrator of the bureau of unemployment compensation a written application for classification of such employment as seasonal. Whenever in any employment it is customary to operate because of climatic conditions or because of the seasonal nature of such employment only during regularly recurring periods of less than 36 weeks duration, benefits shall be payable only during the longest seasonal periods which the best practice of such industry will reasonably permit. The administrator shall ascertain and determine, or redetermine, after investigation and due notice, such seasonal periods for each such seasonal employment. Until such determination by the administrator, no employment' shall be deemed seasonal. When the administrator has determined such seasonal periods, he shall also fix the proportionate number of weeks of employment and earnings required to qualify for benefit rights in place of the weeks of employment and earnings requirement stipulated in division (R) of §4141.01 and §4141.30 R. C., and the proportionate number of weeks for which benefits may be paid.”

Horse racing in Ohio is controlled by Chapter 3769 R. C. §3769.07 R. C., provides that:

“No permit shall be granted for the holding or conducting of a horse racing meeting prior to the first day of April in any calendar year or after the last day of October in any calendar year. No permit shall be issued for more than an aggregate of forty-four racing dates in any one calendar year for any one race track, place or inclosure.”

All of the tracks here involved operate pursuant to statutory provision and no race meets are conducted in Ohio prior to April 1, or after the last day of October in any calendar year and no track receives a permit or operates for more than an aggregate of forty-four racing days in any one calendar year.

It appears that some of the race tracks except during the time of their race meetings, a week or so before preparing for the meets and a similar period after for a cleanup, have no employees during the period between the last of October and the first of April. Others have a few and still others have a considerable number of employees during what might be termed the “off-season.” In all instances, the number of such employees is insignificant as compared to the number employed when the tracks are in use at the race meets. These employees are men who maintain the plants, those who carry on certain essential record work and officials of the track organizations.

The Acting Administrator held that because certain of the tracks maintained employees for a period of from nine to eleven months, the employment at the race tracks was not seasonal employment. The Common Pleas Judge affirming this finding restated this fact and in addition held that the statutory limitation imposed upon the operation of the race tracks from April through October of each year define the period during which operation may be held and preclude the determination that the operation of the race tracks was controlled by the weather and therefore, seasonal.

We are favored with comprehensive briefs by both parties who agree no case in Ohio has been decided which is directly in point. The nearest approach to the situation here presented is a prior determination by the Administrator that the major league baseball clubs, Cleveland and Cincinnati, were seasonal in their operation. Of course, this is not controlling of the question here presented, but it is difficult to make distinction between status of the two unless it is found in the fact that the period of operation of the race tracks is controlled by statute and is not so controlled in the operation of baseball clubs.

It is our opinion that, by reason of and without respect to the statute and by common knowledge of which courts could take judicial notice, the operation of the sport of horse racing in Ohio is seasonal, especially is this true if the operation is conducted for profit. Manifestly, race meets conducted out of doors in the winter months would attract little or no attendance. The race tracks are of practical use only for such meetings.

The language of the statute in its terms clearly comprehends and includes the operation of the race tracks as conducted in Ohio and stamps their operation as seasonal.

“Seasonal employment means employment in an occupation * * * which because of climatic conditions * * * it is customary to operate only during regularly recurring periods of less than 36 weeks in any consecutive 53 weeks.” (Emphasis ours.)

The basic employment here as contemplated by the statute is the operation of the tracks proper. The mere fact that as an incident certain employment is required to enable the operators of the tracks to conduct their meets and to maintain and use the tracks in season is merely adjunct and does not affect the dominant character of the employment.

In our opinion the intervention of the Legislature to fix the dates when race tracks may operate does not change but strengthens the basic concept that horse racing in Ohio and therefore the use of the tracks for public meets is carried on during the seasons when the weather is temperate. Had the Legislature included the winter months during the time when race meets might be conducted it would not have affected at all the practical operation of racing in Ohio and it would remain a seasonal sport.

The cases from states other than Ohio cited by appellant support the theory upon which we decide this appeal. They are: Layman v. Unemployment Compensation Commission of State of Oregon, 136 A. L. R. 1468; Bielke v. American Crystal Sugar Co., 136 A. L. R. 1482; In re Application of Land O’Lakes Creamery, Inc. — Commerce Clearing House of 1955, State of Minnesota, page 26, 606 — paragraph 8183.

Each and all of the errors assigned are well made and upon the facts which are not in dispute, judgment should be for the appellant. The details and extent of the seasonal employment, will, of course, be determined by the Administrator in conformity with the statute and this opinion.

MILLER, PJ, WISEMAN, J, concur.


text:
    SCHURTZ, Plaintiff, v. CAIN, Clerk, Defendant.
    Common Pleas Court, Franklin County.
    No. 194542.
    Decided December 3, 1956.
    Thomas W. Applegate, C. Richard O’Neil, Columbus, for plaintiff.
    Chalmers P. Wylie, City Atty., Russell Leach, Chief Counsel, Columbus, for defendant.
   OPINION

By BARTLETT, J.

MOTION OF DEFENDANT SUSTAINED FOR JUDGMENT OF DISMISSAL AT CLOSE OF PLAINTIFF’S CASE, AT PLAINTIFF’S COSTS.

The plaintiff in this action, seeks to enjoin the defendant as Clerk of said city from certifying to the Council of the City of Columbus, the transcript of the proceedings of the Board of County Commissioners, ordering the annexation of 90.23 acres situated in Franklin Township of this county and the accompanying map or plat, and to further enjoin the defendant from any further proceedings with respect to said proposed annexation.

The case has been submitted upon the pleadings, the evidence and the briefs of counsel. At the close of plaintiff’s case, counsel for the defendant moved that the Court grant a judgment of dismissal and thereafter submitted their brief in support of said motion. Counsel for the plantiff has not seen fit to submit any brief opposed to said motion within the time requested therefor.

The difficulty in this case is that plaintiff has not presented any evidence upon most of the objections raised in her petition to the proposed annexation; but, in fact, her evidence contradicts in many respects the averments of her petition. The evidence discloses that throughout the time in question, plaintiff has been and still is a resident of the City of Columbus, notwithstanding the averments of her petition that she is a resident within the area sought to be annexed to said city, and that if said territory were annexed, as a resident of a rural community she would be subject to the antiquated ordinances of the City of Columbus and its income tax. Of course as a resident she was already subject to these alleged burdens, but no evidence was offered concerning any alleged antiquated ordinances nor any source of plaintiff’s income subject to such tax.

Plaintiff’s testimony merely shows she has owned for many years some 49 acres of land in the territory sought to be annexed, which land is farmed by her on shares with the man she employs to do the farming.

The petition avers the plaintiff is a “person interested” in said annexation as contemplated by §§707.11 and 709.07 R. C., and other related sections of the Revised Code of Ohio.

In the case of Markos v. Cain, No. 191,704 on the dockets of this court, the evidence disclosed that plaintiff Markos was not a resident of the area sought to be annexed the same as the plaintiff Schurtz in the instant case; and Judge Gessaman in the Markos case, construed the term “person interested” as used in such statute, “to mean that to qualify as a person interested, one’s rights must be affected substantially, but not remotely, by the annexation itself.”

In the case of Branson v. Cain, No. 194,081, on the dockets of this court, again the evidence shows the plaintiff was not a resident of the area sought to be annexed and Judge Draper ruled:

“In order for a plaintiff to maintain such type of action, he must not only show his interest in the action but how the alleged annexation adversely affects his legal rights.”

To the same effect, see Judge Draper’s decision in the case of Dun-ford v. Cain, No. 194,082, dockets of this court.

The burden of proof is upon the plaintiff seeking an injunction in an annexation petition. Lamneck v. Cain, supra, Judge Rutherford, sitting by assignment in case of Rouch v. Barthalow, No. 179,742, dockets of this court (105 N. E. [2d] 85) appeal dismissed by Supreme Court; 21 O. Jur. Injunctions, Sec. 202, p. 1277.

Clear proof rather than mere preponderance of the evidence, is required in such cases. Draper, J., in Dunford v. Cain, supra; 21 O. Jur. Injunctions, Sec. 204, p. 1280.

“To entitle a party to an injunction his right must be clear. It is said that no rule in equity is better settled than this. Injunctions are issued to prevent injury to clear right, and the cases which will justify interference of this kind are those of clear, incontestable, well defined rights. Courts will not exercise this extraordinary authority when the right is doubtful or the facts are not definitely ascertained.” 21 O. Jur. Injunctions, Seo. 13, p. 1000.

“The extraordinary character of the remedy of injunction, and the danger that its use in improper cases may cause serious loss or inconvenience' to an innocent party, require that the injunctive power shall be exercised sparingly and cautiously and only after thoughtful deliberation.” 21 O. Jur. Injunctions, Sec. 18, p. 1007; Arthur Murray Studios v. Witter, 62 Abs 17; Ohio-Midland Light and Power Co. v. Columbus and Southern Ohio Electric Co., 69 Abs 56.

Under the evidence at the close of plaintiff’s case, it is the Court’s finding that the plaintiff has not first established any interest which she has, so as to entitle her to raise questions of errors or irregularities as to procedure. Certainly there is no evidence before the Court from which it can be determined that the County Commissioners did not act in the proper manner upon the questions now before this Court.

This Court must find that the plaintiff has not maintained the issues on her part to be maintained in showing a right to bring this action; and, therefore, sustains the motion of defendant for a judgment of dismissal at the close of the plaintiff’s case. Entry accordingly with exceptions by counsel for plaintiff.


author: By DEEDS, J. By THE COURT.

text:
    CRANDALL, Plaintiff-Appellant, v. CAIN, Clerk, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5426.
    Decided March 21, 1956.
    Thomas W. Applegate, C. Richard O’Neill, Columbus, for plaintiff-appellant.
    Chalmers P. Wylie, City Atty., Russell Leach, Chief Counsel, Columbus, for defendant-appellee.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By DEEDS, J.

The defendant-appellee, Clerk of the City of Columbus, presents her motion to dismiss the appeal perfected by plaintiff-appellant herein.

Plaintiff commenced the proceedings in the Court of Common Pleas as an action for an injunction in relation to proceedings for the annexation of certain territory to the City of Columbus, pursuant to §709.01, ef seq., R. C.

Sec. 709.07 R. C., provides as follows:

“Petition to enjoin the proceedings. If, within sixty days from the filing of the transcript, map or plat, and petition in his office as required by §709.03 R. C., the auditor or clerk of the annexing municipal corporation receives notice from any person interested that such person has presented a petition to the court of common pleas to enjoin further proceedings, such auditor or clerk shall not report to the legislative authority such transcript, map or plat, and petition, until after the final hearing and disposition of such petition.”

This appeal was taken by the plaintiff from the judgment of the Court of Common Pleas dismissing the amended petition of the plaintiff, following the sustaining by that court of a demurrer to the amended petition. The pertinent allegations of the amended petition of the plaintiff are as follows:

“Plaintiff says that he is the agent for incorporation of the Village of Franklin Heights which includes the territory described in a certain petition for annexation to the City of Columbus in which Virginia E. McCarty was the agent for the petitioners and which was heard before the Board of County Commissioners of Franklin County, Ohio, on June 10, 1955, and approved. Said petition was filed in the office of the City Clerk of the City of Columbus, Ohio, on June 20, 1955.
“Plaintiff further says that he is a resident freeholder of the unincorporated area of Franklin Township and a member of the Board of Education of Franklin Local School District.
* * * * *
“Plaintiff further says that there was error in the proceedings to annex said territory in the following particulars, to wit:
“(1) An amendment was made in the description of the property to be annexed and such amendment was made without leave of the Board of County Commissioners as required by law.
“(2) The description of the premises to be annexed is inaccurate and does not conform to the map filed with the petition.
“(3) The hearing held on June 10, 1955, was not advertised according to law.
“(4) At the time of said hearing and on the date of the approval by the Board of County Commissioners there was pending before the Court of Common Pleas of Franklin County, Ohio, an action involving the incorporation of the area described in the petition for annexation said incorporation having been approved by the voters of the unincorporated area of Franklin Township of April 20, 1954, prior to the date of the filing of the petition in this case.
“(5) The Board of County Commissioners had no jurisdiction to hear and determine the petition for annexation.”

The principal reasons presented for securing a dismissal of this appeal are that it does not appear, notwithstanding all of the foregoing allegations of his amended petition may be true, that the plaintiff would be a person interested as required by law; also, that the questions involved have been rendered moot for the reason that the annexation proceedings have been completed.

We are inclined to the view, in a consideration of the motion to dismiss, without anticipating a decision on the appeal, that the statement and citations appearing in the opinion of the Court of Appeals in City of Cincinnati, Appellant, v. Rost et al, Appellees, etc., 92 Oh Ap 14, are pertinent as follows:

“The principle announced in the first paragraph of the syllabus to Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Oh St 247, 171 N. E., 241, is controlling. It is:
“ ‘Where power is given under the statutes to two different governmental boards to act with reference to the same subject matter, exclusive authority to act with reference to such subject matter is vested in the board first acting under the power.’ ” See, also, State, ex rel. Chisholm v. McKenzie, 16 C. C. (N. S.) 172, 31 C. D., 475.

See also: State, ex rel. v. Shaver, 163 Oh St 325.

We are also compelled to be in accord with the established principle of law that the wrongful and erroneous determination of questions involved in a controversy does not necessarily render those questions moot, as stated in the headnotes in Vonherberg v. City of Seattle et al, 20 Fed. 2nd, 247:

“1. Municipal Corporations — Taxpayer and Holder of city Utility Bonds held qualified to Challenge city’s right to make Transfers from Utility funds to Railroad Fund.
“Taxpayer and holder of bonds issued by city against light and water funds held qualified to challenge by suit for injunction city’s right to make transfers from such fund to railroad fund, regardless of whether question had become moot.
“2. Action — Action to enjoin improper transfer of Utility funds did not become moot because of Subsequent Transfers to pay prior improper transfers.
“Action by taxpayer and holder of bonds issued by city against light and water funds to enjoin improper transfer by city of utility funds did not become moot because of subsequent transfers after commencement of the action, to pay prior improper transfers, since wrongful transfer can not be made right, and action defeated by committing a like wrong to right the prior wrong after action is commenced, and because city council is a continuing body and its act capable of repetition.
“3, Removal of causes — Contention that separate controversy, constituting Basis of Removal to Federal Court, had become moot, held for trial, and will not be determined on Motion to Dismiss Action as moot.
“Contention that separable controversy between plaintiff and foreign corporation, constituting basis of removal of suit to federal court, had become moot, held question for determination at trial on issue of court’s jurisdiction, and, if no separable controversy is established, court may then determine whether complaint should be dismissed as against all parties, or as to foreign corporation, or whether action should be remanded to state court, after dismissing foreign corporation from case, and matter will not be determined on motion to dismiss action on ground that it has become moot.

Decided September 12, 1956.

“4. Affidavit — Issuable Facts may not be determined on ex parte affidavits.
“Court may not determine issuable facts on ex parte affidavits.”

It is stated in the opinion of the court in the Vonherberg case, supra, as follows:

“If the transfer was wrong when made, it cannot be made right and the action defeated by committing a like wrong to right the prior wrong .after the action is commenced. The action may not be defeated by .subsequent transfers of funds to pay prior transfers, and by repetition evade review. The city council is a continuing body, and its act is capable of repetition, and from the complaint it is threatening to continue, and the defendant’s conduct confirms the complaint, and manifestly by such conduct the city may not defeat in this way the plaintiff’s action ‘without a- chance of review.’ See So. Pac. Terminal Co. v. Interstate Commerce Commission, 219 U. S., 498, 31 S. Ct., 279, 55 L. Ed., 310; McGrain v. Daugherty, 273 U. S., 135, 47 S. Ct., 319, 71 L. Ed. — , filed January 17, 1927; also, Boise City Irrg. Land Co. v. Clark (C. C. A.) 131 F. 415.”

The motion to dismiss the appeal is overruled.

MILLER, PJ, HORNBECK, J, concur.

No. 5426.

OPINION

By THE COURT.

This is an application to reconsider the opinion of this Court rendered on March 21, 1956, overruling the defendant-appellee’s motion to dismiss the appeal for the reason that the issues involved had become moot. There has been no entry filed journalizing this decision.

The record reveals that the action was one seeking to enjoin the appellee, who is the Clerk of the City of Columbus, from proceeding further in the annexation of certain territory to said city under the provisions of §709.07 R. C.; that an injunction was denied in the trial court; that an appeal was prosecuted and that during said appeal annexation of the territory to the City of Columbus was completed, there having been no temporary restraining order issued against the Clerk. It was therefore urged that the question had become moot. Under a similar state of facts this Court held in the cases of Lamneck v. Cain, No. 5334, 73 Abs 20, Markos v. Cain, No. 5349, and Jones v. Cain, No. 5361, that the question had become moot and similar motions were sustained. Motions to certify the records in these cases were overruled by our Supreme Court on February 8, 1956.

We therefore adhere to the pronouncements made in these eases and upon reconsideration sustain the motion for a dismissal of the appeal.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By CASE, J.

text:
    RITTENHOUSE, Plaintiff, v. HOLFORD, Defendant.
    Common Pleas Court, Fayette County.
    No. 22165.
    Decided January 24, 1957.
    Reed M. Winegardner, Washington C. H., for plaintiff.
    John S. Bath, Washington C. H., for defendant.
   OPINION

By CASE, J.

This cause is before the court upon defendant’s demurrer to plaintiff’s petition herein.

Said demurrer reads as follows:

“The defendant demurs to the petition of the plaintiff for the reason that the same does not state a cause of action.

Defendant’s demurrer is supported by a memorandum which reads:

“The gist of an action for the alienation of a husband’s affections is the loss of the society, affection, and consortium of the husband, caused by the wrongful act of another. 21 O. Jur. 561.
“In the instant case, plaintiff alleges and specifically states that ‘she and her husband have always lived together as husband and wife, in peace, happiness and contentment’ (emphasis mine). There is no claim that this situation terminated at any certain time but, in fact, the very wording indicates that this marital situation continued up to and including the date of the signing of the petition. It follows; therefore, that this allegation entirely refutes any subsequent claim in the petition that the affections of plaintiff’s husband have been alienated and eliminates that basis for a suit for alienation of affections.
“The plaintiff, by alleging a situation inconsistent with the necessary prerequisite in an action of this type, has failed to state a cause of action and has rendered the petition demurrable.”

Plaintiff’s memorandum, contra defendant’s demurrer and in opposing defendant’s above quoted memorandum, cites Gilmore v. Henthorne, 70 Abs 193, 56 O. O. 156, 125 N. E. 2d 225, wherein this court overruled such a demurrer to a petition which contained words and phrasing identical with that quoted and emphasized in defendant’s memorandum herein.

This court is of the opinion that there is merit to plaintiff’s contention that Gilmore v. Henthorne, supra, is dispositive of the issues raised by defendant’s demurrer in the case at bar.

It is axiomatic and an established principle of legal interpretation that a passage or phrase is not to be understood absolutely as if it stood by itself, but is to be read in the light of the context. Therefore, it is a duty of the court to look at and consider the context in determining the application of the most ambiguous expression contained in a petition.

Upon applying this rule to the words quoted and emphasized by defendant’s memorandum, it does not appear that said words and phrasing are inconsistent with or substantially tend to refute the operative facts and claims contained and set forth in plaintiff’s petition.

And it also appears that the “context rule,” hereinabove mentioned and discussed, is not inconsistent with the pronouncements of the Supreme Corat of Ohio in Gugle v. Loesser, 143 Oh St 362, 39 Abs 173, 28 O. O. 318, 55 N. E. 2d 580, wherein it was held:

“3. The rules of the Code of Civil Procedure require a liberal construction of a petition favorable to the pleader.
“4. For the purpose of testing the legal sufficiency of a petition upon demurrer, a court must indulge every reasonable inference, from the facts alleged, to sustain the petition.”

It is axiomatic that a demurrer to a petition admits, for the purposes of such demurrer, the truth of all allegations contained in said petition which are well pleaded; and that, in ruling upon such demurrer, the court must assume the truth of such facts so pleaded in the petition.

Upon due consideration of all of the allegations contained in plaintiff’s petition, together with all the issues raised by defendant’s demurrer, and the rules of law applicable thereto, this court must conclude that defendant’s demurrer is not well made and should be overruled.

The court further finds that counsel for plaintiff should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of defendant and thereupon submit same to counsel for defendant and to this court for approval by on or before February 5, 1957; and that said entry should also grant leave of court for defendant to answer by on or before February 15, 1957.


author: By PHILLIPS, PJ.

text:
    BALL, Plaintiff-Appellant, v. YOUNGSTOWN SHEET & TUBE CO., Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3795.
    Decided October 6, 1955.
    Traxler & Beil, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict for defendant, Youngstown Sheet & Tube Company, a self insurer under the Workmen’s Compensation Act of Ohio, in plaintiff’s appeal to that court to determine her right to participate in the Workmen’s Compensation Fund of Ohio, as the result of the death of her husband, William N. Ball, on December 3, 1953. The Industrial Commission of Ohio upon rehearing denies her claim of right to participate on the ground that proof of record did not show that the husband’s death resulted from an injury sustained in the course of and arising out of his employment.

While working on May 3, 1947, as an acetylene welder for the Youngstown Sheet & Tube Company, decedent, upon whom plaintiff was wholly dependent for support at the time of his death, was subjected, as plaintiff claims, to unusual fumes and soot due to faulty operation of an exhaust fan designed to remove such soot and fumes.

It is plaintiff’s claim that as a direct and proximate result of inhaling such soot and fumes her husband suffered a coronary thrombosis and died from pulmonary edema and arterioschlerotic heart disease on December 1, 1953.

Plaintiff’s expert medical witnesses testified that in their opinion there was a probable causal relationship between her husband’s injury on May 3, 1947, and his death on December 1, 1953.

During deliberation the jury sent the following question to the.trial judge:—

“Is it possible to have the testimony of Dr. Mahar and Dr. Reid?”"

The following colloquy had in open court between the trial judge and the jury and the trial judge and counsel followed the receipt of the question. In order to understand the question presented it is believed this colloquy should be set forth verbatim.

“At this time, 3:15 P. M., the Jury returned to the court room, and all three counsel being present, the following proceedings were had:

“The Court: The jury has sent this message: ‘Is it possible to have the testimony of Dr. Mahar and Dr. Reid?’ Is it possible to have it read over to them, I presume.
“Mr. Beil: To which we object.
“The Court: What is your ground for the objection?
“Mr. Beil: I don’t think it is fair to take a strip or a portion of: the evidence and read it over.
“The Court: Yes, but how else can we do it?
“Mr. Beil: Read it all over.
“The Court: No. I think the Jury is entitled to have whatever they ask. Of course, the statute provides that the Judge shall give his recollection of the testimony. I am going to give the Jury my recollection of the testimony of these two doctors, and I will proceed to do it right now, but the method by which I do that is just what you are going to hear. Anything from you, Mr. Fleming?
“Mr. Fleming: No.
“The Court: Now, let me ask this of the foreman or forelady so> we understand you. Who is the foreman or forelady?
“Juror No. 5: I am.
“The Court: No. 5. You can sit right down. Does the Jury want this testimony read over or what do they want?
“Juror No. 5: I will have to let Juror No. 1 speak; she is the one that asked for it.
“Juror No. 1: There is a discrepancy in the statement — .
“The Court: All I want to know is does the jury want the testimony read over? You say ‘Is it possible to have the testimony — ?’ I can’t give it to you in writing. I can’t give you the transcript, but I want to know whether you mean by this do you want it read over to you, is that what you want?
“Juror No. 1: We weren’t sure in whose testimony this occurred, this statement of possibility and probability; what is what we are interested in.
“The Court: Oh, OK.
“Mr. Beil: It is in all four doctors.
“The Court: How would it be to excuse the jury until morning and you gentlemen, over night, pick out the parts about probability and possibility.
“Mr. Fleming: I don’t like to do that, your Honor. We can do whatever is required right now.
“The Court: Very well, here is the transcript and you gentlemen find it for us, as I am not going to search for it.
“Mr. Fleming: Shall we read the testimony then, Your Honor?
“The Court: She now says what they are interested in are the parts dealing in possibility and probability, and they don’t know what Doctor used those words, and as the lawyer just said, I think it is in every doctor’s testimony, so you gentlemen may kindly pick it out.
“Juror No. 1: There was a place where it was defined and that is What I had in mind.
“The Court: Oh, where the words ‘probability and possibility’ were defined.
“Juror No. 1: Yes, and we think it was in Dr. Mahar’s testimony, but we are not quite sure.
“Mr. Fleming: Your Honor, I would like to read Dr. Mahar’s testimony, the part where it is defined.
“The Court: Well, why don’t you check Dr. Reed’s testimony also?
“Mr. Traxler: Do you want the other Doctors too, Your Honor?
“The Court: If you do, then you want anything dealing with the words ‘probability and possibility’?
“Juror No. 1: Yes.
“The Court: You said the part dealing with the meaning of the words ‘Probability and possibility’?
“Juror No. 1. Yes, and I would recognize it if I heard it.
“Mr. Traxler: They just want the parts where the words are used.
“The Court: No, not just where the words are used, where there is some meaning of the words.
“Mr. Traxler: There is not anything in there about the meaning.
“The Court: This is Dr. Kirkwood first.
“Mr. Traxler: Yes, Your Honor.
“The Court: All right.
“Juror No. 1: May I ask this question?
“The Court: Yes.
“Juror No. 1: Was the term ‘probable’ used in the first two Doctors’ report and the term ‘possible’ in the third and fourth?
“The Court: See, we can’t answer you that.
“Mr. Fleming: I would, like to show, for the record, an objection to this procedure, Your Honor.
“The Court: Sure, you can object to anything you want to. You can’t object to a juror asking a question, she has a right to ask the question.
“Mr. Fleming: I am just noting my objection.
“The Court: All right, sure.
“Mr. Fleming: If your Honor please, there is not anything in the record in answer to the Juror’s question, as to the meaning of the words ‘possibility and probability,’ and I don’t believe it is proper for the court now to read extracts from the testimony merely because those two words appear.
“The Court: All right, then, you gentlemen don’t want me to tell the jury anything.
“Mr. Fleming: I am agreeable to telling the jury the answer to their questions, if it can be given, and, as I understand the law, that is all the court can do.
“The Court: All right, what did she want to know: She wanted to know what the doctor said about those words. She didn’t ask for a charge of the law from the court on it.
“Mr. Fleming: As I understood Mrs. Moyer’s question, she wanted the place in the record where the two terms ‘possibility and probability’ were defined.
“The Court: Is that right?
“Juror No. 1: Discussed or defined, but where that part came there was a part in there in which those two terms were used, and there was a direct question and an answer, and that was the part, and when it was read originally — .
“The Court: You don’t know what doctor.
“Juror No. 1: I am not sure, but I think it was in the later testimony, and I thought it was two doctors, and I am not the only one that thought so.
“Mr. Fleming: If, as I recollect what you said — .
“Juror No. 1: Your Honor, I may have used the wrong term, I am sorry.
“The Court: Now, do you gentlemen want time over night to check the record and pick out what you want read, or what do you want me to do now? I am putting it right back on you.
“Mr. Beil: Your Honor, we are willing to leave it to your sound discretion.
“The Court: Well, I have this thought: We ought to read these parts that we have marked here by various counsel; then I thought I ought to stop until morning. You gentlemen check your records and see if you want anything else read.
“Mr. Fleming: If the Court please, I think it is not fair to either side to read extracts out of the testimony, because the testimony can only be reasonably understood in its whole context. Just to take out a few questions and answers because those two words ‘possibility and probability’ appear in it, I feel it emphasizes, if you please, something that should not be emphasized, or it may have an entirely different meaning, unless the jury has in mind what has transpired immediately before that and something after that.
“The Court: We don’t know what the jury has in mind. We have no right to ask them, and then the next point is the jury needs help on this and I am willing to give whatever help I can. Now, we are going to have read to them these parts that deal with this and if any of the jury recognize these parts as the one you want, raise your hands and we will know it; then if you don’t, the lawyers, over night, will check further and will try to find out what you want.
“Whereupon, part of Dr. E. E. Kirkwood’s direct testimony was read ;by the reporter as follows: ‘Q. Doctor, I noticed you used the words “could have been.” A. We will say probably. Q. I was wondering whether .it was a possibility or a probability? A. Probability.’
“Juror No. 2: Say that over again.
“The reporter: ‘Q. Doctor, I noticed you used the words “could have 'been.” A. We will say probably. Q. I was wondering whether it was a ;possibility or a probability? A. Probability.’
“The Court: Now, then, you are not through yet. I don’t think we .'.should stop at just one place.
“Re-cross examination of Dr. Kirkwood read as follows: ‘Q. You have no way of knowing that that was due to pulmonary edema? A. I said probably.’
“Cross examination of Dr. Paul J. Mahar read as follows: ‘Q. How could that be determined at the present time, other than autopsy? A. I don’t think it could be determined. It would be purely conjecture, and depend, then, on possibilities. For me to say it was probable, I just cannot say that.’ (Other questions and answers in between) ‘A. I think 3t is always a possibility if the man inhaled enough fumes that he was totally devoid of oxygen. It is understandable it would be possible for ;a coronary thrombosis to occur, but there again we have no proof of the •■amounts. We have no proof of kinds. It would be purely speculative, and :a possibility, not a probability.’
“Cross examination of Dr. Lewis K. Reed read as follows: ‘Q. Well, Doctor, in your answer to Mr. Fleming’s question, is your opinion based upon possibility? A. No. Q. Is it possibility? A. Yes. He made a statement as to a definite opinion and that certainly is a probable type of answer.’
“The Court: Now, to be fair to both sides, it being now a quarter to four, I am going to excuse the jury until nine tomorrow morning and that will give all counsel a chance to review the record, and if they see any other specific parts dealing with this question, they can call it to the court’s attention tomorrow morning at nine o’clock.
“Members of the Jury, you are excused now until nine tomorrow morning, and please observe the usual caution, as I have always instructed you. The place to discuss the case and make up your minds :1s in the jury room tomorrow morning, when you are all together, so, .over night, just keep open minds and observe the usual caution; be back :in the jury room at nine tomorrow morning. That is all for today,
■“•(Whereupon, the jury left the court room.)
“Mr. Beil: Counsel for the plaintiff agrees with counsel for the defendant that this procedure is not proper, just picking certain excerpts from the testimony, and it is not giving the jury the true meaning of the answers as read, and therefore we are obliged to object.
“Mr. Traxler: Mr. Traxler wants to withdraw all objections to this proceeding.
“The Court: Be sure all those objections are withdrawn.
“Mr. Fleming: Counsel for the defendant objects to the reading of the selected parts of the transcript by the court, such selected portions being those parts in which the words ‘possibility or probability’ appear, for the reason that from the reading of only these portions, being out of context, it likely and probably will mislead the jury, and if any portion is going to be re-read, then the whole of the testimony of that witness should be reread, so that the jury may understand fully without any misunderstanding.
“The Court: Well, now what part do you want re-read? Do you want the whole testimony of the witness read? Do you want Dr. Kirk-wood’s all read over and Dr. Maher’s and Dr. Reed’s? Is that what you want?
“Mr. Fleming: I have to be fair about it. It should be.
“The Court: Well, how about reading over all of the doctors’ testimony to them?
“Mr. Traxler: It is all right with us.
“The Court: Do you want to do it that way? I am trying to be cooperative with the lawyers and I am having an awful time to do it.
“Mr. Fleming: Well, then you will have Dr. Rosoff’s testimony.
“The Court: Then your position is you will go along reading your doctors’ testimony over again but you won’t go along with their doctors’ being read over.
“Mr. Fleming: We will agree to Dr. Kirkwood’s.
“The Court: What do you gentlemen say to that?
“Mr. Traxler: We want all the doctors’ testimony read!
“The Court: All right, well, think it over night, gentlemen.
“Thursday, February 17 — Morning session. Whereupon, all three counsel being present, the following proceedings were had, not in the presence of the jury:
“The Court: Now is there anything else you gentlemen want to add, or anything you want the court to do?
“Mr. Fleming: I have said all I want to say, Your Honor.
“Mr. Traxler: We don’t want to say anything either.
“The Court: All right, Mr. Bailiff, take the Exhibits back to the jury room.”

It is conceded by defendant that at the time plaintiff filed her brief the following portion of the foregoing colloquy did not appear in the bill of exceptions, but was added subsequently by the court reporter by order of the trial judge as a correction to the bill of exceptions requested by defendant: — .

“Mr. Traxler: Mr. Traxler wants, to withdraw all objections to this proceeding,
“The Court: Be sure all those objections are withdraw.” (See pages 25 and 26 of Bill of Exceptions.)

Appellant assigns as her sole ground of error that “the trial court committed prejudicial error, and should have granted a new trial, when he conversed with the jury following an inquiry by the jury after several hours of deliberation.”

Appellant contends by brief that “the sole question before this court is whether the trial court committed prejudicial error when he, in answer to a question propounded by the jury, following several hours of deliberation, carried on a rather detailed discussion with them and finally read certain portions of the answers of the medical witnesses” concerning the use of the words “possibility and probability” as used by medical witnesses.

Further by brief counsel for plaintiff maintain that:—

“The question upon which these answers were based were not read and the jury certainly could not have had a clear understanding of what the doctors were referring to without first having the questions read. Furthermore, the answers by themselves would not clearly portray a full and complete picture of the doctor’s testimony without reading the preceding questions and answers so as to obtain the purpose of the interrogation. Some of the answers invariably were based upon previous answers to prior questions.
“It is the feeling of the plaintiff that the jury was obviously in the state of utter confusion after the court permitted these answers to be read again.”

Defendant states by brief:—

“In general defendant-appellee agrees with the statement of facts set forth in plaintiff’s brief except it does not agree that the plaintiff’s decedent was subjected to an unusual amount of fumes and soot, or that an accidental injury occurred or that plaintiff’s decedent died as a proximate result of an accidental injury.”

With reference to a situation such as disclosed by the entire colloquy §2315.06 R. C. provides:—

“* * * and also, in the presence of or after notice to the parties or their counsel, the court may state its recollection of the testimony upon a disputed point.”

We believe the request of the jury was reasonably definite, and upon authority of Scott v. Wix, 71 Oh Ap 519, conclude that the trial judge correctly granted the jury’s request even though such request necessitated reading from the bill of exceptions, and that he did not abuse his discretion as it is apparent to us that he did nothing more than to use the statutory discretion vested in him.

In the case of Roos-Meyer-He'cht Company v. Ball, 12 Abs 619, the court said:—

“Counsel, with full knowledge of what had transpired, could not take a chance upon a verdict of the jury, and when this chance turned out to be unfavorable, then complain of such misconduct on the part of the jury. If they desired to rely upon this misconduct, they should then have asked the court to withdraw a juror. Misconduct of jury was waived by counsel by proceeding with the trial of their case,”

Sec. 2321.03 R. C., provides:—

“An exception is not necessary, at any stage or step of the case or matter, to lay a foundation for review whenever a matter has been called to the attention of the court by objection, motion, or otherwise and the court has ruled thereon. Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exception being taken to the charge.”

If plaintiff felt she was prejudiced by the proceedings to which reference has been made she should have moved for withdrawal of a juror, and made application for a mistrial immediately. See Dierks v. Persons, 6 Abs 638.

Counsel for plaintiff was present and participated in the colloquy and objected to it, but at the conclusion thereof withdrew all objections.

Under the state of the record, and the law applicable thereto, it is difficult for us to understand plaintiff’s right to complain concerning the action of the trial judge with respect to such colloquy.

“Any irregularity in connection with the jury must generally be brought to the trial court’s attention for a ruling thereon in order to preserve the question for review. * * * This principle has also been applied in cases where the court has seemingly refused requests from a jury for further instructions, or clarification or review of the evidence, where counsel were present, stood by, and interposed no objection to the course of conduct indulged in by the trial court.” 3 O. Jur. (Second), Section 219, page 93.

Also see Hubbuch v. City of Springfield, 63 Oh Ap 329; Sprung v. duPont Company, 16 O. O. 352.

As stated by defendant by brief, in which statement we concur:—

“It is noted that in plaintiff’s brief it is mentioned that this defendant objected to the court’s procedure on the ground that it was prejudicial error. It is elemental that the plaintiff cannot take advantage of an objection made by his opponent to seek relief. When plaintiff withdrew his objections and failed to move for a mistrial the court must assume that he felt he was not being prejudiced in any manner. It has been held that one party cannot take advantage of error by the court in refusing to give special instructions requested by the other party. 3 O. Jur. (2d), Section 692. Similarly one party cannot complain that the court erroneously refused the demand of the other party for a new trial. 3 O. Jur. (2d), Section 683.

Quoting further from defendant’s brief, in which quotation we likewise concur, defendant has, and obviously we have, no means of knowing on which issue the jury found:—

“Aside from the foregoing argument it cannot reasonably be said that the conduct of the court resulted in a verdict prejudicial to the defendant merely because the testimony on the point of ‘possibility’ and ‘probability’ was reread to the jury. There were two issues in the case, namely, whether or not there was an accidental injury and, whether or not there was a causal relationship between injury and death. The jury’s verdict could have been based on lack of ‘accidental injury,’ or lack of causal relationship, or lack of both insofar as the record shows.”

It is obvious from what we have said that the judgment of the trial court must be and hereby is affirmed.

GRIFFITH, J, concurs.

NICHOLS, J, concurs in judgment.