author: By WATTERS, J.

text:
    WELLS v. WELLS.
    Common Pleas Court, Summit County.
    No. 136051.
    Decided March 2, 1949.
    C. B. McRae, Akron, for plaintiff.
    Amos Englebeck, Akron, for defendant.
   OPINION

By WATTERS, J.

“Mr. McRae: If the court please, this is the case of Howard S. Wells, plaintiff v. Anna Belle Wells, pending in this court. I should not have said ‘pending’ in this court. It’s a case in which the plaintiff obtained a divorce from the defendant on or about March 9, 1942, and in that decree of divorce the court made an order ordering the plaintiff to pay for the support of the minor child of the parties the sum of twenty-five percent of his earnings, but not less than five dollars per week.

The plaintiff has filed an application in this court for a modification of that order, asking the court to relieve him of any further payment for the support of the child.

I think opposing counsel and myself and the parties can agree upon the following statement of facts:

It is agreed by the parties that on or about March 9, 1942, this court approved a decree of divorce granting a divorce to the plaintiff in case No. 136051, and the decree speaks for itself, which decree the court has. I won’t need to put that in evidence. By agreement of the parties, the court will look at it and see what the order is.

Mr. Englebeck: Except to say that it incorporates the separation agreement.

Mr.-McRae: The decree shows all of that. The decree shows what order was made, and what the whole situation was.

The Court: In other words the court will have to look to the decree and interpret that. Now can you agree on what the facts are out of which you claim the right to modification exists?

Mr. McRae: I think we can agree that this child, Phyllis Wells, was nineteen years of age on November 29, 1948; that she has obtained a job with the Federal Government in Washington, in the Navy Department, and that her salary is Twenty-Two Hundred Dollars a year.

The Court: When did that employment start?

Mr. McRae. That employment began January 8, 1949.

Mr. Englebeck: It is temporary for six months trial.

Mr. McRae: I will put it this way, subject to Civil Service rules.

Mr. Englebeck: That’s what the young lady told her mother, she is on trial for six months.

The Court: I think it should be agreed this way, that if the court should find that by reason of the fact that she has employment, and is emancipated to that 'extent, and the court should find that that did give the plaintiff the right to have the decree modified, that also if there was a subsequent change in that employment or situation, it would be subject to further modification, assuming that the court could modify it in the first place.

Mr. McRae: That’s agreeable with me.

Mr. Englebeck: That’s all right with us.

Mr. McRae: In other words we are agreeing that the modification be made only while she is employed and self-supporting.

The Court: Miss Sirdefield can write that up and send a copy to each counsel and give one to the court, and each side will have ten days to file briefs.”

* * * * *

The decree filed March 12, 1942, and approved by this court (Judge Ray B. Watters) is as follows:

“This case came on this day, the 9th of March, 1942, to be heard upon the petition and oral evidence of witnesses, and the court being fully advised in the premises, finds: That the plaintiff had been a resident of the State of Ohio for more than one year next preceding the filing of his petition and for thirty days prior thereto a bona fide resident in Summit County in said State. That .he was married to the defendant as alleged in his petition. That one child, Phyllis Ruth Wells aged 11 years, is the fruit of said marriage. That the defendant was personally served with summons and a copy of the petition in this cause and is in default for answer or demurrer and that more than six weeks has elapsed since defendant was served with summons in this cause. And that the plaintiff and defendant have agreed upon a property settlement between them which the court finds to be fair, just and equitable and therefore approves the same. The Court further finds that the defendant has been guilty of gross neglect of duty towards the plaintiff as charged in his petition.
It is therefore ordered, adjudged and decreed by the Court that the marriage contract heretofore existing between the plaintiff and defendant be and the same hereby is dissolved and set aside and both parties released therefrom, and plaintiff is granted a decree of divorce from the defendant on the ground of gross neglect of duty. Defendant is also decreed the care, custody and control of the minor child, Phyllis Ruth Wells, the plaintiff to have the right of visitation at all reasonable times. Plaintiff is to execute and deliver to the defendant a quit claim deed to the real estate referred to in plaintiff’s petition and both parties are forever barred of any claim or right of dower in any property subsequently owned by either party.
The following is a true copy of the agreement entered into between the plaintiff and defendant:
This agreement made and entered into this 2nd day of March, 1942, at Akron, Ohio, by and between Howard S. Wells, Party of the First Part, and Anna Belle Wells, Party of the Second Part, Witnesseth:
Whereas, certain differences have arisen between the Party of the First Part and Party of the Second Part making it impossible for them to longer live together as husband and wife, and whereas Howard S. Wells has filed his suit in the Common Pleas Court of Summit County, Ohio, being cause No. 136051 against his wife, Anna Belle Wells, praying for a divorce and, whereas, the parties hereto desire to make an amicable settlement of all their property rights out of court, the following agreement is hereby entered into:
Party of the First Part agrees to convey all his right, title and interest in and to the home of the parties hereto located at 2030 Eighth Street, Cuyahoga Palls, Ohio, to Party of the Second Part.
Said Party of the First Part also agrees that Party of the Second Part shall hold as her own all the furniture located in said home and that the Party of the First Part will make the payments on the mortgage on said home until July 1, 1942, at which time Party of the Second Part agrees to assume the balance due on the mortgage on said home.
Party of the First Part further agrees to pay the sum of Two Hundred Fifty and 00/100 Dollars ($250.00) on the note held against the parties hereto by Ruth Billow, the principal on said note being Five Hundred and 00/100 ($500.00) Dollars. Said Party of the First Part agrees to pay said Two Hundred Fifty and 00/100 Dollars ($250.00) on said note as soon as possible but shall have eighteen (18) months time to pay the full amount of Two Hundred Fifty and 00/100 Dollars ($250.00).
Party of the First Part further agrees to continue and pay for sufficient insurance upon his life to cover the balance due on the mortgage on said home.
The Party of the First Part further agrees to pay for the care, support and maintenance of the daughter of the parties hereto the sum of twenty-five per cent (25%) of his weekly earnings, and in no event shall the sum payable be less than Five and 00/100 Dollars ($5.00) per week.
Second Party in consideration of the foregoing hereby releases First Party from all claims of alimony, year’s support and other rights given Party of the Second Part by reason of the marital relation.
Said First Party of the First Part is given the right of reasonable visitation of said child, Phyllis Ruth Wells, at such times as the parties hereto can agree and the Party of the First Part also releases Party of the Second Part from any and all claims he might have by reason of the marital relation.
In case a divorce be granted to either party, it is hereby mutually agreed that a copy of this agreement shall be submitted to the Court for inclusion in the Journal Entry of Divorce.
The Parties hereto mutually agree when requested one by the other to join in such conveyance as might be necessary to convey any real estate now owned or hereafter acquired by either, and either of the parties hereto may at any time sell or dispose of or encumber any such real estate or other property free from the dower of the other.
In Witness Whereof the parties have hereunto set their hands to duplicates hereof the day and date written above.”

The Supreme Court, in Tullis v. Tullis, 138 Oh St, 187, 20 O. O. 237, held as follows:

“A decree in a divorce action unconditionally fixing the amount and method of payment by the husband for the support of a minor child pursuant to and in accordance with a previous contract of separation between the husband and wife providing for complete property settlement and support to their minor child, which contract is specifically, approved by the court and made a part of the decree, may not, in the absence of fraud or mistake, be subsequently modified by the court so as to lessen the amount of support for such minor child.”

(Emphasis ours.)

On page 194 (of 138 Oh St, 187) the Supreme Court stated:

“Such a contract is binding between the parents entering into it as fixing their mutual obligation for the support of their minor children, and the courts should not modify such contractual obligations. The parties having made an agreement specifically permitted and authorized by statute, the-court may not unmake that contract or make a new one for them. To do so would in the opinion of the court, constitute an impairment of the obligation of contract. The statute however becomes a part of the contract, and if the allowance is inadequate, the court may notwithstanding the contract, make an adequate allowance.”

(Emphasis ours.)

The “statute” referred to is §8000 GC, which authorizes such contracts between parents upon separation.

The question in the Tullis case as set forth by Judge Hart in the majority opinion was (See page 189).

“Did the Common Pleas Court have jurisdiction to reduce the amount theretofore decreed by the court to be paid by the father for support of his minor child, when the court entering such decree in a divorce action between the parents, incorporated therein the terms of a written contract of separation theretofore entered into between such parents, effecting a complete property settlement and providing for the payment of specific amounts for a specified time by the father for the support and maintenance of the minor child,- the retention of such jurisdiction for such purpose not being provided for either by the agreement or the order of the court?” -(Emphasis ours.)

In the Tullis case it will be observed that the- amount of support and the specific time thereof — until the child reached twenty-one years of age — is specifically covered. In the instant case no definite period of support was fixed.

On page 190 the court said: “The contract of separation between the parties in this case was complete and final * * *.”

So in reality the parents in our case did not fully contract on that subject.

Also nothing was specified in the instant case on the- question of emancipation of the child. This contingency was not covered nor was such condition a fact in the Tullis case.

No one would argue in this case or in the Tullis case that if the minor child died, the obligation to support would cease as to both parents. This is true because there would be no one to support.

The statutes involved and the contract entered into here contemplated the necessity to support by the father and mother.

Suppose the minor child married and was living apart with and supported by her husband, would either the father or mother be obligated to support her?

Now she is living apart from her mother and father. She is in Washington, D. C., earning Twenty-Two Hundred Dollars per year, and is actually emancipated.

On page 190 of the Tullis case, the court said: “But each must see that the child does not suffer for support and must protect the public from the expense of supporting the child.” (Referring of course to the parents’ duty.)

If she is not emancipated, then one of the parents is entitled to her earnings. Would that parent be the mother, and if so, would she still be entitled to the contractual support from the father also? I think not. Or would the father paying for her support be entitled to her wages in preference to the mother? I believe he would.

However the fact remains, if she is not emancipated, one of them is entitled to her earnings. If she is emancipated, then there is no obligation by either parent to support her, and she is entitled to keep her own earnings.

The law on that subject is discussed in Ohio Jurisprudence.

Support of Emancipated minor.

“If parents relinquish control over their minor son and relinquish to him his earnings, they should not be chargeable with his support. The emancipation of a minor competent to support himself discharges his parents from their obligation to provide his support, but if he becomes unable to support himself, the parents’ duty to support him revives.” See 30 O. Jur., 541, Section 50.

See also Newkirk v. Newkirk, 129 Oh St, 543, 2 O. O., 530, which is fully discussed in Judge Zimmerman’s dissenting opinion in the Tullis case. The Newkirk case was one where the child, eighteen years old, became self supporting, and the court held the obligation to support at an end.

The court will order the support payments to cease as of January 9, 1949, subject to further modification in case the child’s status changes.

Journal entry may be drawn in accordance with this finding, with exceptions to the defendant.


source: Caselaw Access Project

author: By THE COURT: By THE COURT:

license: Public Domain

text:
    SHIVELY, Plaintiff-Appellee, v. SHIVELY, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 1989.
    Decided November 23, 1948.

      Irvin Carl Delscamp, Dayton, for plaintiff-appellee.
    E. H. & W. B. Turner, Clinton S. Courson, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an action seeking the partition of jointly owned real estate brought by a husband against the wife. The trial court granted the relief sought.

The appellant is contending that the statute does not authorize a partition under this state of facts. This question has been passed upon by the Court of Appeals for Hamilton County in the case of Shafer v. Shafer, 30 Oh Ap 298, the syllabus of which is as follows:

“Under §§7998, 7999 and 8001 GC, evidencing a complete emancipation of the wife, in so far as separate property was concerned, except as to dower rights, the wife may bring an action in partition against the husband as to real estate owned jointly.”

Upon the authority of this case, the judgment is affirmed.

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

ON APPLICATION FOR REHEARING

No. 1989. Decided December 9, 1948.

By THE COURT:

The application for a rehearing is denied.

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


author: By PHILLIPS, J.

text:
    ZENTKO, Plaintiff-Appellee, v. McKELVEY CO., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3240.
    Decided 1948.
    W. L. Countryman and Leda C. Hartwell, Youngstown, for plaintiff-appellee.
    Henderson & Henderson, John J. Lynch, Jr., Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Late in the afternoon of October 20, 1943, while shopping for costume jewelry in a department store in Youngstown, Ohio, owned and then being operated by The G. M. McKelvey Company, a corporation defendant in the court of common pleas and referred to as such in this appeal, plaintiff in the court of common pleas and so designated in this opinion and Rosemary Klasic, a minor, were arrested by an employee of Kane Secret Service, Inc., which, by contract in existence nearly twenty years with such defendant corporation, was policing its store for the special protection of its property.

On October 21, 1943, plaintiff was charged by affidavit sworn to by such employee with unlawfully stealing, taking and carrying away personal property of defendant McKelvey Company of the value of $7.82, which charge was dismissed by a judge of the municipal court of Youngstown on October 20, 1945, “for failure to prosecute within period set by statutory limitation.”

Thereafter plaintiff sued defendant and Kane Secret Service, Inc., in the court of common pleas for false arrest and malicious prosecution.

“On authority of 30 O. Jur. 774, Bates Pleading, Practice, 1932 Edition, page 92, and also * * * 1 O Jur page 864”, the trial judge sustained defendant’s motion made before the introduction of any evidence in the trial court to compel defendant to elect against which of the defendants she would proceed, and she elected to proceed against defendant McKelvey Company.

At the close of all the evidence in the trial court the trial judge directed the jury to return a verdict for defendant McKelvey Company on plaintiff’s first cause of action for false arrest on the ground that it was barred by the Statute of Limitations, which on authority of 25 O Jur., page 487, he held commenced to run from the time she was jailed as stated hereafter; and submitted plaintiff’s second cause of action for malicious prosecution to the jury, which returned a general verdict thereon for plaintiff for $1.00. The trial judge entered judgment upon the verdict of the jury for plaintiff. Defendant McKelvey Company appealed from that judgment to this court on questions of law on the assigned grounds that the trial judge erred to its prejudice in overruling its motions for a verdict directed in its favor made at the close of plaintiff’s case, at the conclusion of all the evidence, and in its favor notwithstanding the verdict" of the jury rendered against it.

By brief plaintiff “assigns as error” the action of the trial court in holding:—

“(1) that the person causing the arrest and prosecuting the plaintiff was an officer duly appointed by authority of law by the Chief of Police of Youngstown; and
“(2) in holding plaintiff’s first cause of action barred by the Statute of Limitations.”

Arriving at the conclusion we reach in this case we do not pass upon the quoted questions as to the “action of the trial court” which plaintiff “assigns as error”. See §12223-21 (a) GC.

The evidence is decidedly conflicting and contradictory as to what happened in defendant’s store on the afternoon of October 20, 1943, before plaintiff was arrested there.

Plaintiff’s evidence is that she and Rosemary Klasic were shopping in the store of defendant McKelvey Company for costume jewelry on the day and at the time stated supra; that eventually Rosemary Klasic chose a pin and matching earrings which she gave to plaintiff and asked her to pay for them, and then stepped to the nearby skirt and sweater counter to shop there; that later plaintiff also selected a pin and matching earrings and holding her selection and that of Rosemary Klasic in one hand and sufficient money to pay for them in the other hand, which she testified she intended to do, she stepped toward the skirt and sweater counter to ascertain the opinion of Rosemary Klasic on her selection; that simultaneously Rosemary Klasic started back to the costume jewelry counter and that they met a short distance from that counter; that Rosemary Klasic became impatient with the service they were receiving and had decidéd to go elsewhere to shop when the employee of Kane Secret Service, Inc., to whom reference is made supra, accosted them, took plaintiff by the arm and commanded both of them to accompany her to the rear of the store, where they were arrested by her, searched and the articles of costume jewelry to which reference has been made found on plaintiff; that then they were lodged and at her request detained by one of defendant McKelvey Company’s employees (who verified plaintiff’s testimony) in a little office at the rear of the store until the arrival of police officers of the City of Youngstown, who escorted them to the jail of that city in the police patrol at the request of such employee of Kane Secret Service, Inc., where plaintiff was booked, jailed overnight, arraigned, pleaded not guilty, and subsequently was released on bond.

The person who arrested them testified that prior to arresting plaintiff and Rosemary Klasic she saw them acting “peculiarly” at the jewelry counter of defendant company’s department store, and subsequently pick up some articles of costume jewelry, all of which were found in plaintiff’s possession later; admitted arresting them, having them jailed and executing the affidavit charging plaintiff with stealing as stated.

It is undisputed that Kane Secret Service, Inc., was an independent contractor when its employee arrested and swore to the affidavit charging plaintiff with stealing; and there is evidence that defendant corporation’s employee Moody had a part in and aided and abetted the arresting person, as stated supra, by detaining plaintiff in its small office at the rear of the store.

Defendant waived its right to rely on the claimed error of the trial judge in overruling its motion for a verdict directed in its favor made at the close of plaintiff’s case. See Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139, where it is said in the second syllabus:—

“When a motion of a defendant for a directed verdict is made at the conclusion of plaintiff’s evidence and overruled, the defendant has an election either to stand on his exception to the ruling or to proceed with his defense; and if he accepts the ruling, however erroneous it may be, and proceeds with his defense, introducing evidence on his own behalf, he thereby waives his right to rely on the denial of his original motion.”

Considering carefully, as we have, the transcript of the docket and journal entries, the bill of exceptions, all the papers submitted to us for review, and the law applicable to this case, which we will discuss later, we believe the evidence presented questions for the determination of the jury as to defendant’s liability to plaintiff, and that the trial judge did not err to defendant’s prejudice in overruling its motions for a verdict directed in its favor made at the close of plaintiff’s case nor at the conclusion of all the evidence and for a judgment entered in its favor notwithstanding the verdict of the jury returned against it. See Railroad v. Fieback, 87 Oh St, 254; Railroad Co. v. Deal, 116 Oh St, 408; Erie Railroad Company v. Johnson, 106 Fed. (2nd) 550; 11 R. C. L. 811; Kusnir v. Pressed Steel Company, 201 Fed. 146.

Disregarding the stated acts of participation admitted by its agent and employee Moody defendant corporation urges that plaintiff’s arrest and prosecution were caused and brought about by Kane Secret Service, Inc., as stated a conceded independent contractor which was solely liable therefor.

Even though the employee of Kane Secret Service, Inc., acted illegally in the premises “due to the personal character of the services performed by a store detective whose duty it is to apprehend shoplifters, the store owner cannot delegate such duty to an independent contractor and thereby be relieved of liability to his customers for illegal acts of such detective.” Szymanski, Appellee, v. The Great Atlantic & Pacific Tea Co., Appellant, 79 Oh Ap 407.

As stated by Carpenter, J., in the case of Szymanski, Appellee, v. Great Atlantic & Pacific Tea Co., Appellant, supra, the proposition of delegated duty in this case is “well stated in Adams v. F. W. Woolworth Co., 144 Misc., 27, 257 N. Y. Supp., 776, a parallel case to this:—

“ ‘There appear to be no direct precedents on the question of liability for a false arrest made by an independent contractor detective agency. The tendency of our lav?, indicated above, would, however, clearly be toward the imposition of vicarious responsibility. Customers of Woolworth Company are invited into the store to buy its merchandise, for the profit of Woolworth Company. Can it be said that Woolworth Company can disclaim all duty of protecting them from the tortious acts of detectives brought by it into its own premises for the very purpose, among others, of making arrests of its customers? This is not the case of a contractor doing his work negligently. Where negligence is the sole basis of the liability, the doctrine of respondeat superior has been held inapplicable to independent contracts. Negligence does not enter into the tort of false arrest. The act itself, if not justified under the statute (section 183, Code of Criminal Procedure) is tortious, irrespective of negligence. Lowenthal was brought onto the premises to watch and also to arrest. Immunity from vicarious liability would permit any storekeeper to subject his customers to the hazards of an irresponsible detective agency without peril to himself. He would obtain all the benefit of the surveillance and punishment of shoplifters; he would be subject to none of the penalties for unjustified or unlawful arrests of law-abiding citizens. The opportunities for gross injustice afforded by such a doctrine are too manifest to permit its incorporation into the jurisprudence of our state, without compelling reason.’ ”

“That principle was laid down in an earlier decision, Clinchfield Coal Corp. v. Redd, 123 Va., 420, 434, 96 S. E., 836, as follows:—

“ ‘The owner of an operation or enterprise cannot, by securing through others special agents, even though they be officers of the law, for the prosecution of offenders around the plant, obtain any immunity from liability for malicious prosecutions which such owner would not be equally entitled to if he himself directly selected and paid the agents and expressly retained the power of control and removal. When he undertakes these functions, his duties are personal and non-assignable, and where he arranges for and accepts the service, he will not be permitted to say that the relationship of master and servant does not exist.’ ” Szymanski v. Great Atlantic & Pacific Tea Co., supra.

By brief counsel for defendant propounded the following question for our consideration, determination, and answer:^

“Did the court err in determining that there was some evidence in the case to overcome the presumption that Mrs. Radowick made the arrest and commenced the prosecution while acting within the scope of her employment with McKelvey Company through Kane Secret Service, Inc., so as to make the issue a question for the jury- rather than, as we contend, one of law for the court?”

Though we have answered this question ‘heretofore herein we answer the question again specifically by saying in our opinion the evidence in the case presented questions for the determination of the jury on the issue of malicious prosecution, and that the trial judge did not err to defendant’s prejudice in submitting the case from which this appeal is taken to the jury.

Finally it is observed that after the employee of Kane Secret Service, Inc., executed the affidavit charging plaintiff with unlawfully stealing, taking, and carrying away personal property of defendant McKelvey Company, the mother of Rosemary Klasic talked with an officer of defendant McKelvey Company regarding what had been and was being done with reference to her arrest and prosecution, and was advised that defendant McKelvey Company had discussed and given consideration thereto and had decided to abide by the acts of Kane Secret Service, Inc., with reference thereto, “he listened to me and said the officers of the McKelvey Company had dcided to go ahead with the prosecution and there was nothing that he could do for me”, which in view of the subsequent prosecution of plaintiff we interpret as applying to plaintiff, as well as Rosemary Klasic, and as participation, in her malicious prosecution by ratification, which on another ground supports our conclusion that the judgment of the court of common pleas must be and hereby is affirmed.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By MILLER, J.:

text:
    REHM, Plaintiff-Appellee, v. CORE, et, Defendants. PAULLIN, et, Defendants-Appellants.
    Ohio Appeals, Second District, Clark County.
    No. 470.
    Decided November 22, 1948.

      McGrew & Laybourne, Springfield, for plaintiff-appellee.
    Otis B. Core, Washington, C. H., for himself and others.
    Bricker, Marburger, Evatt & Barton, Columbus, for Freda Blessing, defendant.
    C. C. Crabbe, Garek & Sillman, Columbus, for defendants-appellants, Edgar Paullin, et al.
   OPINION

By MILLER, J.:

This is a law appeal from the Court of Common Pleas of Clark County, Ohio. The action was instituted by plaintiff, S. W. Rehm, as Executor of the Estate of Henry Otis Core, deceased, seeking the construction of the last will and testament of the testator.

The record discloses that Della Core, the surviving spouse and life tenant, died while the action was pending. The testator was survived by twenty nieces and nephews, all of whom survived the life tenant. These nieces and nephews are the children of the five brothers and sisters of the testator who were not named or referred to in the will. One of these relatives had seven children and another had only one child, so the question presented is whether the distribution shall be per capita or per stirpes.

The sole controversy turns on the construction of Item IV of the will which provides:

“ITEM IV: — All the rest and residue of my personal property as herein defined, and all my real estate, I hereby give, devise and bequeath to my wife, Della Core, for and during the term of her natural life, and upon her death I give, devise and bequeath all the same to such of my nieces and nephews as may then be living, and the heirs of the body of any of said nieces and nephews as may then be deceased, if they die leaving heirs of the body. Division between such nieces and nephews shall be made per stirpes and not per capita. However, in case any of my said nieces and nephews should then be dead without having left heirs of the body, their share or shares shall go to those living, and to those who may have died leaving heirs of the body, per stirpes.”

The trial court held that each niece and nephew shall take only his proportionate share of the one-fifth interest of the estate, which is per stirpes and not per capita distribution. The error assigned is that the judgment is contrary to law and not supported by the language of the will. A cardinal rule for the interpretation of a will is to ascertain and give effect to the intention of the testator which must be ascertained from the language used in the will. It must be gathered from the whole will, that is, from all of its provisions including codicils, if any, and considered in the light of every other provision as an entirety. 41 O. Jur. 600, Sec. 469. The intention is to be gathered from the words of the will itself as applied to the subject matter and read in the light of the surrounding circumstances. It is not necessarily that intention which existed in the mind of the testator, but that which is expressed by the language of the will giving effect to every word and clause if possible. Where the words of one part of the will are capable of a twofold construction that interpretation should be adopted which is most consistent with the intention of the testator as ascertained by other provisions of the will. The clear intention should prevail even though it might require some departure from the literal construction of one of its clauses. 28 R. C. L. Sec. 178.

The first sentence of Item IV clearly bequeathes an equal part to each niece and nephew which would constitute a “per capita” distribution. The second sentence, however, which provides “Division between such nieces and nephews shall be made per stirpes and not per capita” is claimed by the appellee to require a per stirpes distribution between the nieces and nephews. The words “per stirpes” mean by the root or stock. The essential characteristic ,of a distribution per stirpes is that he takes in a representative capacity and stands in the place of a deceased ancestor. 41 O. Jur. 708, Sec. 594; Kings v. Borton, 108 Oh St 280. In providing that distribution shall be made between such nieces and nephews per stirpes and not per capita, the testator used technical terms which he intended to be given a technical meaning, the will indicating no different intent. Under such circumstances technical terms must be given their technical construction. Hickel v. Starcher, 90 W. Va. 369; Northern Trust Company v. Wheeler, 345 Ill. 182; Maddock v. Haines, 88 F. (2d) 350. In this sentence the testator expressly provided how distribution should be made to and among such of his nieces and nephews as may be living at the time of the death of Della Core, being the first group mentioned in the first sentence. He expressly stated, “Division between such nieces and nephews shall be made per stirpes and not per capita.” The appellants urge that weight and consideration must be given to the fact that the testator referred to his then living nieces and nephews as such, instead of referring to them as his then living heirs of the body of his brothers and sisters. This language might have been more artful, but the result is the same. There can be no question but that the testator’s nieces and nephews are the heirs of the body of the testator’s brothers and sisters. It would appear that out of an abundance of precaution, after expressly providing that these living nieces and nephews should take per stirpes, to further emphasize his intent the testator further provided that they should not take per capita. Both expressions must be given effect.

In the third sentence the testator made provisions for two contingencies; first, that one or more of his nieces or nephews predeceasing Della Core without leaving heirs of the body; and the other, one or more of his nieces or nephews predeceasing Della Core leaving heirs of the body. This sentence provides only for a substitutional bequest and since all of the nieces and nephews survived Della Core, its interpretation is of no importance except to say that it is in no way contra to the second sentence.

Several cases have been cited by counsel for the appellant which we think are not in point as in all of them the will contained either contradictory statements or the intent of the testator was not clear and certain. We are of the opinion that the second sentence of Item IV is definite and certain and is not in conflict with any of the other provisions of the will. This sentence requires a distribution per stirpes.

The judgment is affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By GRIFFITH, J.

text:
    SERAN, A Taxpayer v. BIDDLE et al., Stark County Commissioners.
    Common Pleas Court, Stark County.
    No. 88606.
    Decided October 5, 1948.
    Hart & Hart, A. L. Rinnier, Canton, for plaintiff.
    D. Deane McLaughlin, Pros. Atty., Paul M. Perkins, Assistant Pros. Atty., Canton, for defendants.
   OPINION

By GRIFFITH, J.

The Stark County Home Farm is a tract of approximately three-hundred acres of land, located to the north of the City of Canton; the most of which is outside the city limits. Nevertheless, the land in question in the case at bar is now within the city limits of Canton.

Title was acquired to this land by separate deeds, the earliest of which dates back to 1836; and the county has been in exclusive possession and control of the same ever since.

The city has grown and developed, and partially surrounded this farm with improvements and city streets.: Along the south side of the farm is a street on which are located very valuable homes, ranging up as high as $40,000.00 each.

The farm is now occupied for the purposes for which it was established, to-wit: A County Home; and it has approximately two-hundred-and-fifty inmates at the present time.

' The farm land is used for planting crops, and producing produce for the County Home, as well as other Public Institutions in the county, such as the County Jail and the Molly Stark County Tuberculosis Sanitarium.

In July 1948 the county commissioners advertised for, and received bids for the two tracts of land described in the plaintiff’s petition,- constituting portions of the County Farm. One tract, located on the northeast corner of the farm, consists of thirty-five acres, and the other tract, situated on the north side of Twenty Fifth Street, which is on the south side of the farm, comprises two acres.

Demand was made upon the prosecuting attorney, to bring an action to enjoin the sale of these two tracts, and he refused, or failed to yield to the demand, and hence this petitioner, as a tax payer, filed suit, and obtained a restraining order from the Common Pleas Court of Stark County.

The matter is now before the court upon motion to dissolve the temporary restraining order heretofore issued.

The legal questions involved are:

1st: Does the proposed sale of the two tracts in question constitute a gross abuse of discretion on the part of the county commissioners;

2nd: Do the county commissioners have a legal right, and power to sell this portion of the County Farm, under the situation existing and presented by the facts of this case?

Under the evidence presented, it is the firm conviction of this court that the county commissioners’ conduct, in their effort to sell these two parcels of land, does not amount to any gross abuse of discretion on their part; and the prices bid are not inadequate.

These sales were open to the world. Public auction offerings; and this plaintiff, and all others similarly situated, not only had an opportunity, but were invited by the advertisements to this sale to come in and bid and buy; and it would be wholly improper for this court to impose its judgment upon the judgment of the county commissioners, which, in this case, was free from any abuse of discretion on their part. They have exercised their discretion, and determined that a sale was advisable; and they feel that the interest of the county will best be served by selling these two parcels of land at the prices bid, and this court should not step in and interfere in the exercise of their sound judgment with respect to this important matter.

The important and less easily disposed of problem presenting itself in their lawsuit is: Whether or not the county commissioners may sell the County Home Farm, or any part of it, as long as the County Home is open?

The general power of the commissioners to sell lands held for county purposes is derived from §2447 GC.

Under that section if, in their opinion, the interests of the county so require, the commissioners may sell any real estate belonging to the county, and not needed for public use.

A similar provision has been found in the Ohio statutes for almost a century, and the only restriction on the exercise of this power of sale by the Board appears to be that the land in question is no longer needed for ‘public use’; in which event the commissioners may exercise their discretion, and determine and sale is. advisable if they feel the interest of the county will best be served thereby.

However, in 1929, and while this statute provision was in full force and effect, the Legislature passed Section 2557-2, which specifically covered the subject of the sale of a County Home Farm.

This Section, in part, reads as follows:

“After a County Home has been closed, the County Commissioners may sell all or part of the County Home Farm”.

Secs. 2447 and 2557-2 GC both cover the subject matter of the sale of county-held lands, and are “in pari materia”.

Is there a conflict between these two Sections?

If these two sections are inconsistent, then the older enactment must give way. Richards v. Bank Co., 81 Oh St 359.

By the force of statutory interpretation, the later enacted section, being the last expression of the legislature, should be determined to be the intent of the legislature.

In construing a Statute, Lord Herschell, in Bank of England v. Vagliano, L. R. 1891 App. cases 107, said:

“I think the proper course is in the first instance to examine the language of the Statute, and to ask what is its natural meaning, uninfluenced- by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood and then assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view.”

Sutherland in his work on Statutory Construction, Vol. 2, page 541, Section 5204, says:

“General and special acts may be ‘in pari materia’. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling.”

Does §2557-2 GC constitute a distinct and definite limitation on the general broad powers of sale vested in the county commissioners, when they are considering the sale of a County Home Farm?

The plaintiff contends that the commissioners have no power to sell until the County Home is closed, under the provisions of §2557-2 GC; and that the area of discretionary action on their part is never reached until the home is first closed.

Do the words “after a County Home has been closed” constitute a condition precedent to the power and ability of the commissioners to sell all or any part of the County Home Farm?

The kernel of this case revolves upon the question of whether or not the Legislature intended that §2557-2 GC should operate as an absolute prohibition on the sale of the County Home Farm, until the closing of the County Home Building. This section is a part of Senate Bill 215, which was an Act passed in 1929, relative to various county and correctional institutions. Its primary object was relative to County Homes, and' District County Homes.

The first section of the Act, providing that a County Home may be closed by the county commissioners; and the second section provided that the inmates could be provided for in some other- manner.

The third section is the one now under the miscroscope in this case.

At the time of the passage of this Act of course the county commissioners had a right to sell, under certain circumstances, the county property; but this Act cleared up the question of whether or not the commissioners could close a County Home and care for the inmates in some other manner, and it is very questionable whether the Legislature intended that this provision, §2557-2 GC, was enacted for the purpose of limiting §2447 GC. The purpose of this enactment was to clearly and unequivocally authorize the closing of the Home by the county commissioners; rather than to outline the manner, or prescribe the way in which the property, or any part thereof, could be sold.

There are no negative words in this statute, denying the commissioners the right to sell the property.

“Statutes which relate to the manner or time in which power or jurisdiction is to be exercised and not to the limit of the power or jurisdiction itself may be construed to be directory unless accompanied by negative words importing that the acts required shall not be done in any manner or time than that designated.” Schick v. Cincinnati, 116 Oh St, Page 16.
“* * * and therefore the rule has been laid down that when no rights will be impaired, statutory provisions containing no negative words or implications concerning the time and manner in which public officials shall perform designated acts are directory. Also statutes which relate to the manner and time in which power and jurisdiction vested in a public officer is to be exercised and not the limitation of the power or jurisdiction itself, may be construed to be directory unless accompanied by negative words importing that the act required shall not be performed in any other maner or time than that designated.” 32 O. Jur., Page 938 under Public Officers.
“Generally those directions which are not- of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and .prompt conduct of the business, and by the failure to obey, no prejudice will occur to those whose rights are protected by the statutes, are not commonly considered mandatory.” Sutherland on Statutory Construction, Vol. 2, Page 215.

It is the conclusion of this court that §2357-2 GC does not contain a condition precedent to the selling of the County Home Farm, but that the words “after a County Home has been closed” are merely direction; since no injury under the evidence in this case can result from ignoring those words, and the action of the county commissioners in the proceedings in this case were legal.

The temporary injunction issued by this court on July 14, 1948 is hereby dissolved, and the petition of the plaintiff dismissed.


author: By MILLER, PJ.:

text:
    STATE, Plaintiff-Appellee, v. WADE, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 116.
    Decided March 19, 1949.
    William T. Gillie, City Solicitor, Urbana, for plaintiff-appellee.
    Howard A. Traul, Bellefontaine, for defendant-appellant.
   OPINION

By MILLER, PJ.:

This is a law appeal from the Municipal Court of Urbana, Ohio. The defendant was charged with violating §6307-21a GC, the affidavit reading as follows:

“Before me, Blanche A. Rhea, Clerk of said Court, personally came Ptl. C. E. Graham, Ohio State Highway Patrol who being duly sworn according to law, deposes and says that on or about the 5th day of December, 1948, at 12:15 o’clock A. M. at the County of Champaign, and in and upon U. S. Route 68 a public road and highway therein, outside of a municipal corporation, one Waldo H. Wade unlawfully operated a motor vehicle at an unreasonable and improper speed without regard to the traffic, surface and width of said road and highway and of any other condition then existing, to wit: exceeding Fifty miles per hour, to wit: 70 miles per hour, in violation of §6307-21, GC.”

To this affidavit a motion to quash was filed assigning two grounds therefor:

(1) That the affidavit does not specify the place within Champaign County on Route 68 where said offense is supposed to have taken place.

(2) That said alleged charge does not specify what speed is prima facie lawful at the time and place of said alleged violation.

The court sustained the motion for the reason stated in item (1), and overruled the same as to item (2). Leave was granted to amend the affidavit in accordance with the ruling of the court, which was done. The amendment was permissible under §13437-29 GC which provides that the court may at any time before, during or after the trial, amend the indictment, information or bill of particulars in respect of any defect, imperfection or omission in form or substance. The court did not err in permitting the amendment.

It is further urged that the court erred in overruling the motion upon the second ground. It will be noted that §6307-21a GC requires that the prima facie lawful speed at the time and place of the alleged violation be set forth in the affidavit and warrant. Now do the affidavit and warrant meet this requirement? We think that they do for the affidavit provides:

“* * *, to wit: exceeding fifty miles per hour, to wit: 70 miles per hour, in violation of §6307-21a GC.”

It would seem that a reasonable interpretation of this quotation would be that the defendant is charged with violating §6307-21a GC, in that he exceeded fifty miles per hour, to wit, seventy miles per hour, clearly indicating that fifty miles per hour was the lawful rate of speed at the time and place charged. We therefore hold that the affidavit met all of the legal requirements.

The record also discloses that no objection was made by the defendant to the amended affidavit, and the case proceeded to trial upon the basis of the allegations expressed therein. It would therefore seem that the defendant waived such objections as he may have had as to the precise form and wording of the affidavit.

Another error assigned is that the trial court erred in denying to the defendant a trial by jury in violation of §13443 GC. This section guarantees a jury trial in all cases where the penalty exceeds fifty dollars. It is conceded that the maximum fine because of the alleged violation is fifty dollars but the appellant urges that by including the probable costs the penalty would exceed fifty dollars thereby entitling him to a jury trial. This court passed upon this identical question in the case of City of Xenia v. Smith, 34 Abs 620, holding that the costs in a trial do not constitute a part of the fine. We are still of the same opinion. See also City of Cincinnati v. Wright, 77 Oh Ap 261.

We have carefully examined the bill of exceptions and find that the evidence was sufficient to support the conviction. We find no error in the record and the judgment is affirmed.

HORNBECK and WISEMAN, JJ, concur.


text:
    LINZEY, Plaintiff-Appellee, v. FABIAN, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3227.
    Decided 1948
    Edward L. Williams, Youngstown, for plaintiff-appellee.
    Stephens & Young, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant appeals on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for plaintiff in her action filed against him therein to recover damages for personal injuries sustained allegedly as the result of defendant’s negligence in operating his automobile, in an easterly direction over and along Boardman Street, into collision with her automobile, which she was operating in a southerly direction over and along Walnut Street within the corporate limits and in the closely built up section of the City of Youngstown, Ohio, about 6:30 o’clock on the morning of November 24, 1946.

In her amended petition plaintiff charged defendant with carelessly, negligently and unlawfully operating his automobile at forty to fifty miles an hour without keeping a lookout for others in the lawful use of Boardman and Walnut Streets; without having it under such control as to be able to slow it down or stop it within his assured clear distance ahead or when he saw, or in the exercise of ordinary care on his part should have seen, plaintiff stop her automobile before entering Boardman Street; and thereafter operating it in a southerly direction on Walnut Street into the intersection of Boardman Street therewith without warning her of his intention of so operating his automobile; and without equipping it with lights showing discernible objects the required statutory distance ahead.

In his answer defendant admitted that Walnut and Board-man Streets are two duly dedicated improved public highways which intersect at right angles within the corporate limits of the City of Youngstown, Ohio; admitted that he and plaintiff were operating their respective automobiles over and along Walnut and Boardman Streets in the directions alleged by plaintiff, at which points those streets are twenty and twenty-six feet wide respectively from curb to curb; admitted the plaintiff was injured, but denied that such injuries were caused or brought about by or through any “fault, neglect or misconduct” on his part; and affirmatively alleged that plaintiff sustained her injuries “by reason of her own negligence, inattention and unlawful conduct”.

By cross-petition defendant charged plaintiff with carelessly, negligently and unlawfully operating her automobile “at a rate of speed greater than was reasonable and proper” over and along Walnut Street into the intersection of Board-man Street therewith “having regard for the said condition and location of said highways”; without having her automobile under control or keeping “a proper lookout for other lawful users of the highway”; without giving him “any warning of her rapid approach to said intersection”; and without yielding the right of way thereat to him, as a result of all of which he suffered personal injuries and property damage, for which he sought damages from her.

Generally both parties introduced evidence to support the allegations of their respective pleadings, which it is not necessary to state too fully to understand the questions presented by defendant’s assignments of error.

There is evidence that both parties were to some extent familiar with Boardman and Walnut Streets and their intersection each with the other within the corporate limits of the city of Youngstown, over and along which streets defendant said “except for those darting taxicabs” traffic was light usually at the time of day when his car and that of the plaintiff collided.

Defendant, called for cross-examination as a witness in plaintiff’s case, testified that the brakes on his car were in excellent condition on the morning in question; that Walnut and Boardman Streets were “dry” and “there was not’” any traffic ahead of him or coming toward him; that it was not yet daylight and that the headlights on his automobile were lighted which showed ahead the “normal distance”, which he “couldn’t exactly say you could say was beyond” the length of the courtroom in which the case was tried, which the trial judge said was fifty-two feet, and while he could see objects in the distance he could not state the actual distance they were away from him; that as he approached the intersection of Walnut Street he was driving about five or ten miles per hour, and under the then existing conditions he could have stopped his automobile in twenty feet; that he did not see plaintiff’s car until his car collided with it, but saw it “just at the very time I struck her (plaintiff’s) right front fender” with the left front fender of his automobile; that “the entire front of the (his) car was caved in”; that he didn’t slow down nor blow his horn before the accident.

Plaintiff testified on direct examination that as she approached the intersection of Walnut Street with Boardman Street she “saw two headlights coming down the street” (Boardman Street), “to the ’right of me approximately 150 feet” distant; that “I blew the horn and started across the road”, and “I had only gotten about half way across the street”, Boardman Street, when “it (her automobile) was knocked into the Henderson Building” (situated on the southeasterly angle created by the intersection of Boardman and Walnut Streets); that she was hospitalized in bed for twenty-two days during which time “I was put in a traction”, a harness like apparatus fitted over the jaws, head and neck, which she was compelled to wear until “the 17th day of December”, and thereafter wore a specially fitted brace to cure a “fracture of the odontoid process of the second cervical vertebrae and a fracture of the ring of the second cervical vertebrae”, “which she never had off until March”; that she was unconscious and in shock, and that since receiving such injuries she has suffered great physical pain and mental anguish, and a severe, lasting and permanent shock to her entire nervous system, and at the time of trial suffered from arthritis in the regions of the head and neck, the pain of which her doctor testified can be relieved only by putting her in collar; that she was then earning $165.00 a month and her board, and was unable to work or earn money from July 31 to November 3; that “for three months she couldn’t get her teeth together”, and had to be fed for a long period of time; that she suffered “a fracture of the maxilla, upper jaw”, numerous cuts, bruises and other injuries, and for a long period of time was unable to walk; that she was called upon to expend $245.16 for hospital, $10.00 for x-ray expenses, $51.50 for a brace, $16.00 for dental care, $5.00 for ambulance service, $240.00 for physicians services, and $25.00 for. medicines, and that it would cost “five or six hundred dollars” to repair her automobile.

Upon cross-examination plaintiff testified with reference to the place where the collision happened that “I had possibly been over it once or twice before, but no more than that”; that she “would say” she was “unfamiliar with the place of the accident”; that she brought her car to a full stop before entering Boardman Street, at which point she could see approximately 300 feet along Boardman Street.

Called for direct examination in his own case defendant testified that he received injuries to his right knee, which he alleged but did not prove were worth $150.00; that his automobile was damaged to the extent of $350.00; that he did not see the car (plaintiff’s car) before the accident and only saw “headlights” “fifteen or twenty feet” away; that he thought plaintiff was going to stop her automobile before crossing Boardman Street, “and it seemed to increase the speed instead and the next thing I knew I hit her”, when her car was traveling “I would estimate at twenty-five or thirty miles an hour”; that “I did not hear a horn” sounded on plaintiff’s automobile; and verified plaintiff’s testimony with reference to plaintiff’s car coming in contact with the “Henderson Building”.

Upon cross-examination had in his own case defendant testified that as he approached Walnut Street on the morning of the collision he did not brake nor slow down his automobile, and gave no warning of its approach; and in response to the question “there is not one single thing you did before this crash happened except to run into this car”, answered “that is right”, that at that time “it is my best judgment I was going fifteen miles an hour”.

Defendant’s medical witness testified that in his opinion the type of arthritis from which plaintiff was suffering was an “infectious type” and “was most certainly improving”, and “I found no physical reason for her not being able to continue in her occupation”, and that he didn’t see plaintiff since the day he examined her.

In his assignment of error defendant claimed that “the trial judge erred in overruling defendant-appellant’s several motions for a directed verdict in his favor, in its general charge to the jury, in refusing to sustain defendant-appellant’s motion for a judgment in his favor notwithstanding the verdict of the jury”, and for a new trial; and contends that the verdict of the jury is against the manifest weight of the evidence and contrary to law, and that there are “other errors appearing upon the face of the record.”

The injuries of the parties and the cost of repairing their respective automobiles are recited for the purpose of showing the extent of their respective injuries and damage to their automobiles as bearing upon the speeds of the respective automobiles immediately before and at the time of the collision and the violence thereof, even though no claim is made that the verdict of the jury is excessive.

We dispose of defendant’s first assigned ground of error by referring his counsel to the second syllabus of the case of Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St, 139, in which the supreme court said;—

“When a motion of a defendant for a directed verdict is made at the conclusion of plaintiff’s-evidence and overruled, the defendant has an election either to stand on his exception to the ruling or to proceed with his defense; and if he accepts the ruling, however erroneous it may be, and proceeds with his defense, introducing evidence on his own behalf, he thereby waives his right to rely on the denial of his original motion.”

The trial judge’ did not err to defendant’s prejudice as alleged in this assigned ground of error.

While counsel for defendant assigned as a ground of error that the trial judge erred in his general charge to the jury, upon oral argument in open court he stated that he was not relying upon this assigned ground of error. Accordingly, we do not discuss the charge of the trial judge to the jury.

The evidence in this case was so conflicting and contradictory as to all the issues raised by the pleadings and evidence that reasonable minds could do nothing other than reach different conclusions with respect thereto thus presenting questions for the determination of the jury as to negligence of the parties and proximate cause of the collision, freeing the trial judge of defendant’s charges that he erred to his prejudice in overruling his motions for a verdict directed in his favor made at the conclusion of all the evidence, for a new trial, and for judgment in his favor notwithstanding the verdict of the jury.

The rather voluminous record submitted to us for review has been read carefully, the testimony quoted at length, and full reference made to other evidence, and as a result of such study certainly we cannot arrive at the conclusion counsel for defendant asks us to reach that “the verdict of the jury was against the manifest weight of the evidence” nor “contrary to law”.

Defendant’s counsel has failed to call our attention to “other errors appearing upon the face of the record” and to comply in respect thereto with the provisions of Rule VII of this court that their briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the question arose, together with a statement, of the authorities relied upon. Accordingly, we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By BIRRELL, J.

text:
    NARDACCI v. NARDACCI.
    Common Pleas Court, Trumbull County.
    Decided January 7, 1948.
    Pierson & Pierson, Warren, for plaintiff.
    Morris Mendelssohn, Youngstown, for defendant.
   OPINION

By BIRRELL, J.

If §12000 GC, applies to this Court, that is the Common Pleas Court of Trumbull County, there is nothing that this Court can do except to grant the application for change of venue. If §12000 GC does not apply to this Court it is the duty of one of the Judges of this Court to so rule in order that this casé may proceed to trial, or the ruling may be appealed.

Sec. 12000 GC says: “Upon application of a party and his or her affidavit that a fair and impartial hearing and determination can not be had before the court in which a petition for divorce or alimony is filed, a change of venue shall be allowed”.

It does not say that the Court in which a case may be heard shall grant a change of venue. It does not say that a change of venue shall be granted by the Court to which the cause may be removed. It says specifically that such change shall be granted where an Affidavit is filed “before the court in which a petition * * * is filed”.

The section providing for change of venue became a part of the divorce laws by reason of the general revision of the Statutes in 1853, 51 O. L. 377 enacted March 11th, 1853. This particular section at that time read as follows: Sec. 13 “A change of venue shall be allowed by any Court in which any Petition for divorce or alimony may be filed for the hearing and determination of the same, upon the Petitioner making application therefor and making an Affidavit that in his or her behalf a fair and impartial hearing and determination cannot be had before the Court in which the Petition is filed, and in case of such change of venue, the cause shall be remanded to another County of the same judicial district for hearing and determination.”

This revision of the Act relating to divorce and alimony provides at Section 3, “that in all cases where divorce shall be applied for, the complainant shall file his or her petition in the office of the Clerk of the Court of the proper County,” and then it goes on at Sec. 8 to determine that “all applications * * * shall be made in the County where the complainant bona fide resides at the time of making such application, or in the County where the cause of complaint arose or took place.”

As a matter of history, previous to this date, the Supreme Court of the State had had jurisdiction to grant divorces. And such jurisdiction was originally provided by the Act of the General Assembly of the State of Ohio passed December 29th, 1804, 3 O. L. 177, which was the first divorce Act enacted after Ohio became a State. That Act specifically stated “that the Supreme Court shall have sole cognizance of granting divorces,”

and that Act originally determined that in all cases where divorces shall be applied for “the complainant shall file his or her Petition in the office of the Clerk of the Supreme Court three months before the sitting of the said Court.”

Through the various revisions of the Act concerning divorces the sole jurisdiction of the Supreme Court was continued until an Act of March 13, 1843, 41 O. L. 95, when the Legislature determined, Section 1: “that the Supreme Court of the State, and Court of Common Pleas in the respective Counties shall have concurrent jurisdiction in all cases of divorce and alimony,”

and the Legislature then determined, Section 2: “that in all cases hereafter when a party applies for a Decree of Divorce, the complainant shall file his Petition in Chancery in the office of the Clerk of Supreme or Common Pleas Court as the case may be, either in the County where complainant may reside at the time of making such application or in the County where the cause of complaint arose or took place.” upon the filing of which the same proceedings shall be had as had been provided in the previous Act.

Now I refer to these previous matters to find what the Court referred to, or in what other manner the words respecting the “filing” of a case were used, and whether there was any meaning attached to the phrase, “the court in which a petition * * * is filed”. While the wording of the Act of 1853 as I have quoted above, is slightly different from the present wording of §12000 GC it included the same reference to “the court in which a petition * * * is filed”. This particular section was rewritten when the Statutes of the State were again revised, 75 O. L. 597 at p. 750 Sec. 16, and in the Recodification published as the Revised Statutes of 1880, the change of venue section appears in its present form as Sec. 5704, Revised Statutes, 76 O. L. 192. There have been no decisions indicating any change of meaning between the wording of the original section and the present section, and it will be presumed that the same meaning applies. The Codifying Commission merely simplified the wording without changing the meaning. Under the present laws authorizing divorce and alimony, §11980 GC provides: “Actions for divorce * * * shall be brought in the county of which the plaintiff is and has been for at least thirty days immediately preceeding the filing of the petition, a bona fide resident or in the county wherein the cause of action arose.”

This of course, is a restatement of the original determination by the Legislature that an action for divorce must be filed in the County of which the applicant was a bona fide resident. There seems to be no change in substance either in the detemination of where a Petition for divorce shall be filed or in the authority to grant a change of venue.

The definition of the word “filing” denotes the preservation of papers, and apparently the general definition refers to the placing of papers in some container or attaching them to a wire in order that they may be preserved and be readily referred to. In the Statutes referring to divorce and alimony the word “filed” is the verb that is used to denote the placing of a petition in a certain Court in order to begin the action. When §12000 GC says that upon application supported by an Affidavit that a fair and impartial hearing and determination cannot be had “before the court in which a petition for divorce * * * is filed,” the wording must refer to the Court where the Petition was placed in accordance with the Statutes.

This Court (Trumbull County) is not the Court “in which the Petition was filed” but is a Court to which this case was removed. The petition bears the stamp as follows:

“Clerk’s office
“Mahoning County, Ohio
“Filed September 8, 1947
“Wm. F. Quinlan, Clerk”

There is no dispute that this Petition was filed in Mahoning County, which it is admitted was the County of residence of both of these parties. The summons was issued and served in Mahoning County: The Cross Petition bears the similar stamp and states that it was filed September 22, 1947. Various other papers were also filed in Mahoning County. On October 24, 1947 a Journal was filed in Mahoning County, signed by Judge Beckenbach of Mahoning County wherein “It is ordered that a change of venue in the case of Wanda Nardacci v. Nicholas Nardacci be and the same is hereby allowed and the Clerk of Courts of Mahoning County, Ohio, is hereby ordered to send the entire file to the Clerk of Courts of Trumbull County for final determination and hearing.”

Some time after that date, all of these papers came into Trumbull County although the date does not appear in these filed. It therefore appears that Trumbull County is not the County in which the Petition of this case was “filed.”

The plaintiff insists on a strict construction of this Statute. The defendant believes that the Statute is a general Statute, and that the plaintiff having had the opportunity of transferring this case out of Mahoning County, the defendant should now have the opportunity of transferring it out of Trumbull County. The action for divorce and the authorization for change of venue is purely a Statutory matter. This Trumbull County Court has only the authority which the' Statute grants. If the Statute merely makes it mandatory upon the Court before whom the Petition “is filed” to grant a change of venue, then the Court to which the Petition is “removed” has no authority under that Statute to further “remove” the case.

The Court to which the case is “removed” has authority to take additional measures as might become necessary in the proceedings of the case. Mills v. Mills, 24 Ohio Cir. Ct. R., N. S., 133. The Supplemental Petition does not constitute a change of the relief originally requested, but says “wherefore Plaintiff continues to pray for the relief sought in her Petition and for the additional relief sought in this Supplemental Petition.” I do not think that the mere fact that a. Supplemental Petition was filed in this Court would change the fundamental fact that this case was removed to this County from the Court in which the Petition for divorce was originally “filed.”

Now if this were a matter of interpretation of §12000 GC the Court might consider what a reasonable interpretation should be, and might consider the fact that if §12000 GC imposes a mandatory duty upon every Court to which this case may be removed to grant a change of venue without a hearing, without consideration, without any alternative, then the Court in Portage County to which this case may be removed, may be immediately requested by either party for further change of venue. And any further Court to which this case may be later removed may likewise be mandatorily required to grant a further removal of the case upon the filing of an Affidavit. If the Statute granted that power or required that action on the part of every Court to which the case may be transferred, the mere suggestion that a “merry-go-round” is provided for every applicant for divorce would not prevent the enforcement of the Statute, because the Legislature has the right and power to provide such a procedure. Perhaps-the Legislature considered this possibility and in order to avoid such a situation decided to make this section applicable only to “the Court in which a Petition * * * is filed.” At least they used words which restricted the meaning of the section to such Court. Consequently this is not a matter of interpreting a Statute but of applying the Statute according to .its own words.

.The sole purpose of the Courts is to provide a forum wherein causes may be decided, and the only purpose of the change of venue Statute must be to provide fair and impartial hearing and determination of causes. The trial of a case ought to be had as expeditiously as possible, and it is not the intent of the Legislature nor of the Courts to burden litigants with great expense of travel from one County to another or to make the procedure of judicial determination expensive or difficult for litigants to attain. In accordance with this purpose it seems that the Legislature very wisely restricted the right to change of venue under §12000 GC to, or rather from, the Court in which the Petition is filed, and: did not provide that every Court to which such case might be removed is under the mandatory duty of continuing to remove that particular case from County to County.

The application is refused and exceptions are granted to this ruling.


author: By THE COURT. By THE COURT.

text:
    STATE, ex rel HEPPERLA, Relator, v. GLANDER, et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4097.
    Decided January 6, 1949.

      Meyer A. Cook, Cleveland, for relator.
    Frank T Cullitan, Pros. Atty., A. M. Braun, Asst. Pros. Atty., Cleveland, for Respondent, John A. Zangerle, Auditor of Cuyahoga County, For the Motion.
    Hugh S. Jenkins, Atty. Geni., Columbus, for Respondents, C. Emory Glander and Members of the Board of Tax Appeals.
    Lee C. Howley, Director of Law, Robert M. Morgan, Asst. Director of Law, Cleveland, for Respondent, The City of Cleveland, Contra the Motion.
   OPINION

By THE COURT.

Submitted on motion of defendant, John A. Zangerle, Auditor of Cuyahoga County, to quash service of summons in this case for the reason that the respondent, John A. Zangerle, is a resident and officer of Cuyahoga County, Ohio, and that this action is not properly brought in Franklin County against him.

Two grounds are assigned to support the motion:

(1) That the action against the moving respondent must be brought against him in the county in which he resides and not in Franklin County by reason of §11271 GC; and

(2) That the petition does not aver and the law does not require such joint duties and obligations on the part of the respondents in listing, levying and assessing taxes on the property described as will permit their joinder as parties-respondents.

The respondent, the City of Cleveland, has, by counsel, entered its appearance so that the sole question raised by the motion relates to the validity of the joinder of respondent, Zangerle, as Auditor, with the other respondents.

We are of opinion that the motion must be sustained upon both grounds asserted. The averments of the petition constitute a charge that the respondent Auditor has failed and neglected to perform his official duties in levying and assessing taxes on real estate owned by respondent city and located in the county of Cuyahoga. This subject matter makes the provision of §11271 GC applicable, which reads:

"‘Actions for the following causes must be brought in the county where the cause of action or part thereof arose.
(2) Against a public officer for an act done by him in virtue or ’ under color of his office, or for neglect of his official duty.”

If the relator is entitled to the relief prayed in the second amended petition, it may be granted by a several order on the defendant, Zangerle, as Auditor of Cuyahoga County, and on the other respondents, either severally or jointly.

The official obligation of respondent, Zangerle, Auditor, can only be related to real estate owned by respondent, the City of Cleveland, which is not included in that real estate which, though ascertained and assessed by the respondent, Tax Commission, under §5423 GC, is not used by the City of Cleveland in the operation of a public utility or as incidental to its operation. Sec. 5548 GC. The Auditor’s official duty is therefore specific and does not require the joint action of any of the other respondents. Likewise, the ascertainment and assessment of the other assets of the City of Cleveland set out in the amended petition, if taxable, is incumbent upon the respondents other than Zangerle, Auditor. Secs. 5423, 1464-2, 1464-3, 5376, 5377, 5378 and 5570-1 GC; State, ex rel. Methodist Book Concern v. Gugenberger, 133 Oh St 27.

The motion will be sustained.

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

APPLICATION FOR LEAVE TO FILE BRIEF

No. 4097. Decided February 28, 1949.

By THE COURT.

Application by the City of Dayton for leave to file brief as amicus curiae is allowed, the same to be filed within 30 days from date of entry.

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


author: By MILLER, PJ. By THE COURT.

text:
    HENDERSON, Plaintiff-Appellee, v. HILL, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4112.
    Decided February 17, 1949.
    Ray E. Hughes, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from the Court of Common Pleas, Franklin County, Ohio. The appeal there was from a judgment of the Municipal Court of Columbus, Ohio, granting the plaintiff the possession of certain real property and also for $45.33 for the use of the premises up to the time of the trial.

On July 29, 1947, at appellant’s request the appeal was dismissed and a judgment rendered for the appellee for $110.00 and costs. The entry journalizing this decision was not approved by the appellee. On July 31, 1947, the appellee filed a motion to set aside the order of July 29, 1947, for the reason that the judgment of the Court as to the amount of rent was rendered without consideration of the facts or pleadings in the case; that the Court was without jurisdiction to render such a judgment without the consent of the appellee or upon proper evidence being submitted to the Court. On October 11, 1947, this motion was sustained, the judgment entry being.

“For good cause shown order dismissing appeal undér date of July 29, 1947, is hereby set aside.”

This is the order to which this appeal is directed. The appellant urges that the Court erred in setting aside the judgment, abused his discretion in so doing and that the same was in violation of Rule VIII of the Common Pleas Court.

It is well established that a Court has the inherent power of controlling its own judgment and of correcting, modifying or vacating such judgment during the term at which it was rendered. 23 O. Jur. 1216, Section 1121.

The record contains no bill of exceptions which exemplifies the proceedings in the Common Pleas Court. The appellant therefore fails in his attempt to show an abuse of discretion. In the absence of such a showing the presumption of regularity maintains. We have examined Rule VIII of the Common Pleas Court which has no application to the facts here presented, as it relates only to the manner of approving entries. It makes no reference to the vacating of judgments.

Although it has not been urged by the appellee, it should be noted that the order appealed from is not a final order as defined by §12223-2 GC. It leaves the action still pending in the Common Pleas Court for determination.

We find no. error in the record and the judgment is affirmed. The cause is ordered remanded to the Common Pleas Court for further proceedings according to law.

HORNBECK and WISEMAN, JJ, concur.

ON APPLICATION FOR REHEARING

No. 4112. Decided March 16, 1949.

By THE COURT.

Application for rehearing denied.

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


author: By THE COURT.

text:
    VAUGHN, Plaintiff-Appellant, v. VAUGHN, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4284.
    Decided April 21, 1949.
    Ogier, Coughlin & Lloyd, Columbus, for plaintiff-appellant,
    Cowan & Adams, Columbus, for defendant-appellee.
   By THE COURT.

This is a motion filed by the defendant-appellee seeking an order dismissing the appeal for the reason that, this Court has no jurisdiction. The record discloses that the action was one for divorce only, no alimony being sought. The judgment of the trial court was that the petition be dismissed and judgment rendered for the defendant for her costs.

Counsel for the defendant-appellee cites §12002 GC, which provides:

“No appeal shall be allowed from a judgment or order of the common pleas court under this chapter, except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or in cases under the next preceding section. When judgment is rendered for both divorce and alimony, the appeal will lie only to so much of the judgment as relates to the alimony. When an appeal is taken by the wife, she shall not be required to give bond.”

This section has been held on numerous occasions to be in violation of Section 6, Article IV of the Ohio Constitution, and is therefore of no force and effect. See Weeden v. Weeden, 116 Oh St 524; Cox v. Cox, 104 Oh St 611; Zonars v. Zonars, 101 Oh St 518; Wells v. Wells, 105 Oh St 471; Potts v. Potts, 21 O. L. R. 326.

The motion to dismiss will be overruled.

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


text:
    LAVIN, Plaintiff-Appellee, v. BARBINI, Defendant-Appellant.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1196.
    Decided 1948
    S. Mark London, Girard, for plaintiff-appellee.
    Luchette & Hoffman, Masury, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant appeals on questions of law from a judgment of the court of common pleas of Trumbull County permanently restraining him from placing an entrance from Morris Avenue to an addition to his commercial garage presently situated on his land, zoned by the City of Girard as Commercial B property, which property occupies the south-easterly angle created by the intersection of State Street and Morris Avenue within the corporate limits of the City of Girard, Ohio, within fifty feet of plaintiff’s residence which stands on land owned by her, zoned by the same authority as residential property, and which faces fifty feet on the southerly side of Morris Avenue and extends back therefrom a distance of 119.75 feet contiguous with and parallel and adjacent to the easterly line of defendant’s land.

Acting in accordance with authority granted him by building permit issued by the proper official of the City of Girard defendant commenced construction of such addition, full responsibility for the location and construction of which he assumed, on or about February 15, 1948, and continued therewith until permanently enjoined by a judge of the court of common pleas on April 16, 1948, upon hearing of plaintiff’s action for temporary and permanent injunction and equitable relief filed against him in the court of common pleas by plaintiff on March 16, 1948.

We discover that while a judge of the court of common pleas set a date for hearing upon plaintiff’s “application for a temporary injunction” restraining defendant from proceeding with construction of such work upon plaintiff “furnishing bond in the sum of $200.00” no hearing was ever had on such application and no bond ever furnished by plaintiff.

Defendant contends that the trial judge erred to his prejudice in refusing to require plaintiff to furnish bond; in finding the ordinance zoning the properties of the respective parties constitutional; and that such finding and judgment entered thereon are “contrary to law and the evidence presented in that court”.

If the questioned zoning ordinance of the City of Girard is unconstitutional, as defendant claims, the lawsuit from the judgment entered in which defendant appeals, and this appeal, are ended, and it is unnecessary for us to pass upon defendant’s other two assigned grounds of error. Accordingly we proceed to determine that question forthwith.

That ordinance provides inter alia that:—

“Within a Commercial District, no building, structure or premises should be used, arranged or designed to be used in any part for any of the following uses: * * * Public Garage, or stable, provided, however, that a public garage or stable may be erected under the following conditions * * * No entrance or exit shall be within 50 feet of a residence district or within 200 feet of any school, public playground, public hospital, public library or institution for dependents or children.”

If constitutional the trial judge did not err to defendant’s prejudice in restraining the placing of the entrance to which reference has been made supra for the evidence is undisputed that if erected as contemplated the entrance to the addition to defendant’s garage would be within five feet of plaintiff’s property line and approximately twelve feet of her residence, which would violate the provisions of that ordinance.

The purpose clause of the questioned ordinance provides that such ordinance is:—

“An ordinance to regulate, restrict and limit in the interest of the public health, safety, convenience, comfort, prosperity and general welfare the uses and the locations of buildings and other structures and premises to be used for trade, industry, residence or other specified uses; the height, bulk and location of buildings and other structures hereafter erected or altered, including the lot area per family, set back building lines and the area of yards, courts and other open spaces; and for said purposes to divide the city into zones or districts of such number, shape and area as are deemed best suited to carry out the said purposes; and to provide a method of administration, and to prescribe penalties for the violation of the within provisions.”

We do not doubt but that the Council of the City of Girard, in the interest of health, safety and general welfare of the public, could constitutionally enact an ordinance regulating the erection and construction of entrances to the questioned addition to defendant’s commercial garage regardless of the zone in which it was being constructed; and it is common knowledge that repairing, painting and housing automobiles (in which gasoline is stored in varying quantities), which likewise it is common knowledge is highly explosive and inflamable, for which the evidence discloses it was being erected, while necessary in modern life, and as counsel for defendant suggests is not a nuisance per se, nevertheless it is a Are hazard, regardless of how safely constructed or well managed, and gas fumes are more or less constantly emitted therefrom inimical to public health and safety, especially where people who live as close thereto as the evidence in the instant case discloses plaintiff lived in the instant case inhale them.

Without citation of authority we conclude that the ordinance under discussion is constitutional.

This conclusion compels consideration of defendant’s contention that:—

“Julia Lavin, manifestly does not qualify for the right to equitable relief. Evidence in the trial court showed that the Plaintiff operated or permitted the operation of a public garage on her said residential property up until about 1938, seven years after the passage of the aforesaid zoning ordinance. The evidence also showed that the plaintiff was herself guilty of noncompliance with certain other provisions of the zoning ordinance of the City of Girard.
“* * * But the above conditions are not the only reason why plaintiff should have been denied equitable relief. The evidence shows that the plaintiff did not consider or censure the injury to residential property on Morris Avenue resulting from the operation of a public garage on her property for a number of years
“* * * Courts of equity have refused in other instances to enforce particular provisions of zoning ordinances where to do so would deprive the owner of his'rights in property and did not unreasonably affect the character of a neighborhood.”

Counsel for defendant cited authority for his contention, a portion of which is supported by the evidence.

Without objection plaintiff’s son testified “my father built that garage (referring to the one situated on plaintiff’s premises) about the time I was born about twenty-seven years ago, that was before any zoning ordinance went into effect. You were allowed to do such a thing, however within the last ten or twelve years its not been used for that.”

I am of the opinion that the trial judge answered this question when he so pertinently observed during trial “if there was a garage on residence B property or property at the date that the ordinance went into effect, the zoning ordinance could not confiscate a use that is in effect on that date without compensation.”

As to whether plaintiff having abandoned the use to which such garage was put prior to the enactment of such ordinance and again used such garage for commercial purposes is another question which we need not and will not answer.

As we see it defendant is deprived of no rights in his property which are not inimical to the health and safety of the general public. As the result of careful study thereof we find no merit in this claim of counsel for defendant.

Likewise we find no merit in plaintiff’s contention that because plaintiff allegedly violated such zoning ordinance approximately a decade ago that she can not enforce “it by injunction against” defendant now.

Sec. 11882 GC, provides:—

“Unless otherwise provided by special statute, no injunction shall operate until the party obtaining it gives a bond executed by sufficient surety, to be approved by the clerk of the court granting the injunction, in an amount to be fixed by the court or judge allowing it, to secure to the party enjoined the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.
“Provided, however, that the party obtaining the injunction may deposit, in lieu of the bond provided for herein, with the clerk of the court granting the injunction, currency or negotiable government bonds in an amount to be fixed by the court.”

Obviously the purpose of a bond in the instant case was to protect the defendant in the event that the lower court and this court decided that the injunction ought not to have been granted. Since it has been determined that the injunction was properly granted it is obvious that defendant suffered no damages which the bond would or could have protected. Accordingly in our opinion the trial judge did not err to •defendant’s prejudice in this respect, as urged.

We cannot say that the finding of the court and the judgment entered thereon are “contrary to the law and the evidence presented to that court”.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By HORNBECK, J.

text:
    HUSTON v. INDUSTRIAL COMMISSION OF OHIO.
    Ohio Appeals, Second District, Montgomery County.
    Decided April 7, 1949.

      Strother Jackson, Harry P. Jeffrey, Dayton, for plaintiffappellee.
    Hugh S. Jenkins, Atty. Gen., R. Brooke Alloway and Joe F. Asher, Asst. Attys. Gen., Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

The appeal is from a judgment on a verdict in behalf of plaintiff, holding that she is entitled to participate in the State Insurance Fund.

Six errors are assigned, all of which we have examined, but upon the record there is only one question of substance, namely, did the facts developed present an issue for the consideration of the jury whether or not the injuries sustained by the plaintiff’s decedent were in the course of and arose out of his employment within the meaning of the Workmen’s Compensation Act of Ohio, §1485-37 et seq GC.

There is no substantial dispute in the facts, the difference between the parties arising out of an interpretation of them.

Plaintiff’s decedent, Theodore Huston, was under written contract, the Assistant Manager of the Cliff Cabs Company. The position which he held was created due to the death of a former partner of the owner of the business. Under the contract and upon the testimony of the employer Huston had the widest authority and his duties were to advance the business interests of his employer. At the time of the injuries complained of, he was acting as Assistant Manager and in charge of the business.

It was the practice, expressly stated by the employer to be authorized, for Huston to take his meals while on duty and, on the night of his injuries, August 25, 1945, he had, with another employee, a driver, gotten into a cab of the Company and had driven to a Hull-Dobbs restaurant where they were ordering food. As was the custom, the driver of the cab had turned over money of the Company to Huston which he had in his possession at the time that he was killed.

' While Huston and the driver were seated at the counter of the restaurant, a man entered and staged a hold-up. An employee of the restaurant, a cook, the driver of the cab and Huston were the only persons present other than the bandit. As the bandit was about to open a door, probably to leave the restaurant, Huston struck at but failed to hit him whereupon the bandit shot and killed Huston, while his hands were in the air.

It is inferable that Huston felt that he might deter the bandit in his purpose to rob or bring about in his detention and arrest. Huston’s acts, manifestly, were unwise, but in the most favorable light to plaintiff, may it be said that his injuries arose out of and occurred in the course of his employment? We are of the opinion that the jury had the right to so determine.

Huston, to all intents and purposes, was the alter ego of his employer. It may be presumed that the bandit would have taken money from any person in the restaurant from whom it might have been secured. If the owner of the Cab Company, instead of Huston, had acted as he did, could it not be said that he acted in the interest of his business? The apprehension or defeat of the purpose of the bandit was in the interest of those who were involved in the holdup. The money of the Cab Company was a part of the property to be protected. The mere fact that decedent had temporarily deviated from active operation of the cab of Jáis employer does not prevent the determination that at the time that he was killed he was acting in the course of his employment.

The factual development here as to course of employment is much like and may be controlled by the adjudication in Industrial Commission v. Henry, 124 Oh St 616, 180 N. E. 194, a case which arose in Clark County and in which this Court affirmed a judgment for the plaintiff, 10 Abs 393.

Likewise, we believe there was causal connection of the injury with the employment through the activities, conditions and environments of the employment. Industrial Commission v. Weigandt, 102 Oh St 1, 130 N. E. 38.

The practice of Huston to go out with the drivers of the cabs and participate in-the activities of the Company and to leave a cab in front of a restaurant and take a meal and then resume its occupancy, permits the conclusion that there was such connection between the employment and its activities as to support a findiing that the decedent’s injuries arose out of his employment.

We do not discuss and attempt to differentiate this case from the many cited by appellant in its helpful brief but are satisfied that distinction can be made and that the evidence in this case supported the verdict.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.