author: By STEWART, J. By MILLER, J.

text:
    GETTINS et, Appellants, v. UNITED STATES LIFE INSURANCE COMPANY, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12239.
    Decided April 15, 1955.

      Donal E. Hummer, Marshal, Melhorn, Bloch & Belt, Toledo, for appellants.
    Melvin P. Lewis, Doyle, Lewis & Warner, Toledo, for appellee.
    Before MARTIN, MILLER and STEWART, Circuit Judges.
   OPINION

By STEWART, J.

This action was brought by appellants as beneficiaries under an alleged contract of insurance upon the life of Frederick T. Gettins, Jr. In an extensive oral opinion the district judge concluded that no valid insurance contract was in effect at the time of Gettins’ death and accordingly directed a verdict for the appellee insurance company.

The facts are substantially undisputed. On May 19, 1953, appellee’s agent came to Gettins’ office for the purpose of trying to sell him a policy of life insurance. The visit was a successful one from the agent’s point of view, because Gettins decided to purchase a $25,000 convertible policy. Gettins signed an application for the insurance and gave the agent his check payable to the appellee company to cover the first year’s premium. The agent gave Gettins a receipt. A third person present during the interview testified that in the presence of Gettins the agent, in response to a question, stated that the insurance policy was effective immediately.

The application for insurance consisted of two parts, “Part A” and “Part B,” the latter requiring a medical examination before it could be completed. It is conceded that the receipt given Gettins contained the following language: “said insurance to be effective from the date of Part A or Part B, whichever is later * * *”

The agent arranged an appointment for a medical examination of Gettins the next day, and delivered “Part B” of the application to the physician who was to make the examination. Gettins did not keep this appointment. Several days later, Gettins made another appointment with the same physician for a medical examination, which he also failed to keep. So far as the record reveals, Gettins was in good health.

On June 19, 1953, Gettins died from injuries received in an automobile accident the previous day. The appellee company refused to pay any amount of insurance to appellants as beneficiaries and made a tender of the amount of the premium paid by Gettins.

Appellants concede that the receipt provided that the contract should not be effective until a medical examination was completed, and that no medical examination was had. They contend, however, that the requirement of a medical examination was waived if the agent said in the presence of Gettins, that the policy was immediately effective, and Gettins acted in reliance on that statement in not submitting to a medical examination promptly after executing the application. The appellants insist that they were entitled to have a jury pass upon these questions. Our decision must be governed by the law of Ohio, if controlling Ohio law can be found.

As recognized by the trial court, no difficulty is presented by the fact that the insurance company never delivered a policy to Gettins. It is settled in Ohio that insurance can be effective immediately upon payment of the premium and issuance of a receipt, if the parties so intend. Duncan v. John Hancock Mutual Life Ins. Co., 1940, 137 Oh St 441, 19 O. O. 145, 31 N. E. (2d), 88. Such temporary insurance remains in effect until the company rejects the application, although no notice to the insured of such rejection is necessary to effect termination. Leube v. Prudential Ins. Co. of America, 1947, 147 Oh St 450, 34 O. O. 377, 72 N. E. (2d), 76, 2 A. L. R. (2d), 936.

The question here, however, seems far from well-settled by the Supreme Court of Ohio. “There is no doubt that confusion exists in the reported cases of this state respecting the authority of insurance agents to waive conditions in life and fire insurance policies.” John Hancock Mutual Life Ins. Co. v. Luzio, 1931, 123 Oh St 616, 621, 176 N. E. 446, 449. The Luzio case does make clear that both by custom and the law of Ohio soliciting agents of life insurance companies have substantially less authority than do agents of fire insurance companies to alter or waive the conditions of the insurance contract.

What is here in issue, however, is not the actual authority of the agent, but whether the insurer may be bound by the unauthorized act of its agent upon which the decedent in good faith relied. The confusion on that subject is well-illustrated by a comparison of the Luzio case with Shields v. Supreme Council of Royal Arcanum, 1930, 123 Oh St 31, 173 N. E. 731, decided by the same court six months previously. In Luzio it was held that the insurance company was not bound by an attempted waiver by its soliciting agent of a condition providing that the policy should not take effect unless the insured were in sound health at the date of the policy. In Shields it was held that the insurer had waived its right to forfeiture of the policy because of default in the payment of a premium, by reason of the conduct of its “local collector” acting “within the apparent scope of his authority.”

Perhaps because of the apparent inconsistency in the Ohio Supreme Court decisions, the trial court turned to other jurisdictions and, in directing a verdict for the appellee, relied primarily upon two federal cases decided under the laws of Utah and Colorado, respectively. Mofrad v. New York Life Ins. Co., 10 Cir., 1953, 206 Fed. (2d), 491; Corn v. United American Life Ins. Co., D. C. Colo. 1952, 104 Fed. Supp. 612. In each of those two cases the courts pointed out the absence of evidence to show that the applicant was misled into believing that the policy would be effective prior to a medical examination. By contrast it is the existence of such evidence upon which appellants rely in the present case.

In any event we think it unnecessary to go beyond the law of Ohio to determine the question here in issue. In our view the controlling answer in this case, albeit in a somewhat cryptic form, is to be found in a decision of the Ohio Court of Appeals for Cuyahoga County, Peponis v. John Hancock Mutual Life Ins. Co., 1942, 37 Abs 386; 47 N. E. (2d), 251. In that case the state appellate court affirmed a judgment of the Municipal Court of Cleveland against the insurance company. The difficulty lies in the fact that the court filed no opinion, and both the facts and the law of the case must therefore be gleaned from the dissenting opinion.

It appears that the plaintiff’s decedent in that case signed an application for a life insurance policy and paid the first year’s premium to the soliciting agent, who turned it in to the company’s branch office in Cleveland. The application consisted of two parts, a “Statement to be made by applicant” and a “Medical Inspection Report.” Certain questions in the “Statement to be made by applicant” were not answered, and no medical examination was made, so that the “Medical Inspection Report,” which was on the reverse side of the applicant’s statement, was entirely blank. Plaintiff’s decedent died before the application was completed or submitted to the insurance company.

The witnesses who testified for the plaintiff both claimed that the insurance agent waived the necessity for a medical examination, and that the policy was to be given immediately if she paid the premium. However, the application clearly provided that the insurance would be in force only if the application was approved at the home office of the company, and that only certain officers of the company could make or modify contracts or waive any conditions of a contract, and that no soliciting agent was authorized to accept risks or to pass upon insurability.

The reasoning of the dissenting opinion is contained in the following quotation: “The application never reached the Home Office and, as above stated, was never completed in several respects. How is it possible therefore to fix liability upon the company until there is a binding contract between the parties? Can it be said that the mere receiving payment in advance is sufficient without more to fix the company’s liability even though they have never received a complete application, or had the opportunity to approve or disapprove it at the Home Office in the manner provided for on the face of the application? To so hold is to enforce contractual obligations upon one of the parties where by the plain terms of the application no binding obligation has yet been established.”

Obviously the majority of the Ohio Court of Appeals rejected this reasoning, and the Supreme Court of Ohio refused to review the court’s judgment. See 1942, 37 Abs 386; 47 N. E. (2d) 251.

In the Shields and Luzio cases the Ohio Supreme Court has in effect said that a limited agent of a life insurance company can waive some conditions of the insurance contract, e. g., forfeiture for nonpayment of a premium, but cannot waive others, e. g., that the insured be in sound health at the time of the policy. The Luzio case did not purport to overrule the Shields case; indeed the opinion in the Luzio case did not even mention the Shields decision. Therefore, all we are left with is that a limited agent by his conduct within the apparent scope of his authority can waive some conditions and cannot waive others. Neither the Luzio case nor the Shields case involved waiver of the condition involved in the present case, i. e., a medical examination.

The Peponis case did involve that very condition. It must be assumed that the Court of Appeals for Cuyahoga County was familiar with the prior cases decided by the Ohio Supreme Court. Since the Supreme Court has only held that some conditions can be waived and others cannot, we conclude that it has made no decision on the particular question involved in the present case. On the other hand, the Court of Appeals for Cuyahoga County appears to have supplied a controlling answer to the question here in issue. That being so, we are bound by it, until or unless the Supreme Court of Ohio gives a contrary answer. In these circumstances, it is not for us to exercise our independent judgment, to look to other jurisdictions, or to speculate as to what the Supreme Court of Ohio might some day decide. West v. American Telephone & Telegraph Co., 1940, 311 U. S. 223, 61 S. Ct., 179, 85 L. Ed. 139.

It follows that the appellants were entitled to have a jury determine the issues in question. The judgment of the district court is accordingly reversed, and the case is remanded for a new trial.

DISSENTING OPINION

By MILLER, J.

I am of the opinion that under the rule of Erie R. Co. v. Tompkins, 304 U. S., 64, 58 S. Ct., 817, 82 L. Ed. 1188, this case is controlled by the ruling of the Ohio Supreme Court in John Hancock Mutual Life Ins. Co. v. Luzio, 123 Oh St 616, 176 N. E. 446, 447. The applicable law established by that case, using the syllabus rule in effect in Ohio, is contained in Paragraph 4 of the syllabus reading as follows:

“One who is employed as soliciting agent, whose sole authority is to solicit insurance and to report to his principal the information which the applicant has given him, cannot, without proof of authority so to do, waive a condition in the policy providing that it shall not take effect unless the insured be alive and in sound health at the date of the policy.”

The provision in the policy in the present case, that the applicant undergo a satisfactory medical examination before the policy became effective, is of the same character as the provision in the policy in the Luzio case, and stronger in favor of the insurance company. In my opinion, it is necessarily covered by the rule of the Luzio case.

Peponis v. John Hancock Mutual Life Ins. Co., 37 Abs 386, 47 N. E. (2d), 251, relied upon by the majority opinion, is from an inferior court and, if in conflict, is not controlling. I am not in accord with the construction given to that ruling by my colleagues. In the absence of a recorded opinion by either the trial judge or the Court of Appeals in that case, and with no transcript of the evidence, or a copy of the instructions to the jury available, it is difficult to determine the exact issue therein presented and decided. I think the ruling was probably controlled by the fact that the failure to turn in a completed application to the office of the insurance company was the fault of the soliciting agent who carried the application away with him when he went on his vacation, from which he did not return until after the death of the applicant. Compare Bellak v. United Home Life Ins. Co., 6 Cir., 211 Fed. (2d), 280. That presents a different question from the one herein involved.

I would affirm the judgment of the District Court.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    HUNTER, Plaintiff-Appellee, v. GRON et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22876.
    Decided November 16, 1953.
    Hribar & Dougherty, for plaintiff-appellee.
    N. L. Mann, for defendants-appellants.
   OPINION

Per CURIAM:

This is an appeal on questions of law from a judgment recovered by the plaintiff appellee, a licensed real estate broker, in the Euclid Municipal Court as commission for the sale of defendants appellants’ home.

The uncontradicted evidence was that the purchasers, through the efforts of the plaintiff, entered into a written agreement on March 14, 1952 to buy defendants’ home for the sum of $10,500.00. The proposed sale was interlocked with the proposed purchase of another home by the defendants. However, when the defendants were unable to make satisfactory financial arrangements in their purchase, both transactions were called off necessitating the cancellation of all agreements and the return of posted deposits. The plaintiff successfully carried them out. He, in addition, removed his written listing agreement from the possession of the defendants, carried away his “for sale” signs, withdrew the property from his listings, placed no further advertisements and offered the property to no one thereafter. On March 22nd, the next day, he was thanked by defendant, Mrs. Gron, “for being cooperative in calling the entire transaction at an end” and accepted a check for $8.72 to cover his expenses in advertising the property.

On April 1st, the defendants informed the purchasers that they had located another house suitable to their situation and would be willing to sell them their present home provided they offered $11,500.00. Some telephone discussions in generalities had taken place from March 24th on. The purchase at that price was consummated on May 24, 1952.

It is our opinion that the foregoing facts established that the parties by mutual understanding cancelled the plaintiff’s employment under and by virtue of the exclusive listing agreement on March 22nd, and plaintiff cannot thereafter lawfully lay claim to a commission for the sale of the property here in question made subsequent to such date by the owner. The defendants negotiated and consummated the sale of their property through their own initiative and efforts and, under the law, were the procuring cause thereof. Plaintiff was not entitled to recover a commission under the plain circumstances presented in this record and the court below, consequently, should have granted defendants’ motion for judgment made at the conclusion of all the evidence.

4 R. C. L. 317, Section 55.

“If a broker, after introducing a prospective customer to his employer to no purpose, abandons his employment entirely, or, if procuring a person who proves to be unwilling to accept the terms of his principal, he merely ceases to make further endeavors to negotiate a deal with that particular individual and all negotiations in that direction are completely broken off and terminated, obviously in either case the broker will not be entitled to a commission if his employer subsequently renews negotiations with the same person, either directly or through the medium of another agent, and thus effects a sale without further effort on the part of the broker first employed.”

See: Rabkin v. Calhoun, 83 Oh Ap 222, 8 Am. Juris. 1069, Sec. 144.

Reversed and final judgment for defendants appellants Exceptions noted. Order see journal.

HURD, PJ, KOVACHY and SKEEL, JJ, concur.


author: By REYNOLDS, J.

text:
    BENJAMIN et, Plaintiffs, v. COLUMBUS (City) et, Defendants.
    Common Pleas Court, Franklin County.
    No. 191975.
    Decided May 9, 1956.

      Owen B. Sherwood, McLeskey & McLeskey, for plaintiff.
    Chalmers P. Wylie, City Atty., Russell Leach, Senior Asst. City Atty., for defendant.
   OPINION

By REYNOLDS, J.

In this case plaintiffs seek to enjoin defendants from enforcing the provisions of Ordinance No. 1615-54, which makes it unlawful for any person to have a device commonly known as a pinball game or machine in his possession or in his custody or under his control.

Each of the several plaintiffs is the owner of a number of pinball machines, which are placed in business establishments under a contract whereby the owners and merchants divide the revenue derived from their operation.

Judge Gessaman of this court granted a temporary restraining order against the enforcement of the ordinance in question, and the case is now before the court to determine whether that order should be made permanent or dissolved.

There are a number of different kinds of pinball machines involved but the principle and method of operation are the same. By the deposit of a coin a player receives the right to make a certain number of plays, always the same number. The play consists in propelling the balls by means of a plunger operated by the player and the balls in passing over the face or surface of the machine, come in contact or may come in contact with various obstacles and contacts with certain of these obstacles resulting in the recording of a score.

The object of the play is to see how high a score can be made, but supposedly the play is for amusement only since, unless a machine is especially equipped to reward the player with a free play or plays, dependent upon the score made, or the owner or custodian awards prizes for certain scores, the player receives nothing other than the satisfaction derived from the score made which is largely dependent upon chance, but somewhat on the skill and experience of the player.

In times past pinball machines were in the main designed and used as gambling devices, players being rewarded with coins, tokens redeemable in merchandise, money, etc., dependent primarily on chance. Such machines or devices were violative of the State statutes prohibitive of gambling.

Secs. 2915.01 to 2915.17 R. C., are all statutes designed to prohibit gambling in Ohio. Sec. 2915.15 R. C. has specific application to gambling devices, and provides as follows:

“No person shall keep or exhibit for gain or to win money or other property, a gambling table, or faro or keno bank, or a gambling device or machine, other than as is defined in §§2915.10, 2915.12, and 2915.16 R. C., or keep or exhibit a billiard table for the purpose of gambling or allow it to be so used. Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars and imprisonment not less than ten nor more than ninety days, and shall give security in the sum of five hundred dollars against further violation of this section for one year.”

Sec. 2915.16 R. C. defines a gambling device as follows:

“(A) Any slot machine or any other machine or mechanical device, other than as is defined in §§2915.10 and 2915.12 R. C., an essential part of which is a drum or reel with insignia thereon which when operated may deliver, as the result of an element of chance, any money, property, or other thing of value or by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money, property, or other thing of value.
“(B) Any machine or mechanical device, other than as is defined in §§2915.10 and 2915.12 R. C., designed and manufactured to operate by means of insertion of a coin, token, or similar object so that when operated it may deliver as the result of the application of an element of chance, any money, property, or other thing of value; * * *”

From the above statutory definition, it appears that the pinball machines here under consideration are not gambling devices since, when operated, they do not deliver as a result of chance any money, property or other thing of value, nor may a person operating the same become entitled to receive as a result of chance any money or other thing of value.

So far then, as the State statutes are concerned, these pinball machines are not violative of the law.

Back in 1936 the Police Department began to or threatened to confiscate all pinball machines and in the case of Barok v. City of Columbus, No. 148,573, a permanent injunction was issued out of this court, prohibiting such confiscation, unless the machine or machines were actually being used for gambling.

In 1945 the Columbus City Council passed Ordinance 54-45 regulating pinball machines and providing that all such devices must be licensed by the city, and from that time until 1953 they were so operated under the regulatory and licensing provisions of that ordinance.

On March 19th, 1953, Council passed Ordinances Nos. 156-53 and 157-53. The purport of Sec. 156-53 is to provide for the seizure and destruction of any machine, device, instrument, apparatus or contrivance which tends to encourage gambling and may be used in a manner violative of the Code of the City of Columbus. Sec. 29-38 of Ordinance 157-53 provides as follows:

“It is hereby declared prejudicial to the public good, detrimental to the public morals and a nuisance, for any person to exhibit for the purpose of operating or to permit the operation of any machine, device or instrument in the City of Columbus, Ohio, of whatever kind or description, or by whatever name known or commonly referred to which tends to encourage gambling, or which registers odds or a score, or which is adapted, or may readily be converted into such machine, device or instrument that it adapted, for use in a manner violative of Sections 29.38-1, 29.40, 29.42, 29.42-1, and 29.42-2 of this chapter, and every machine so exhibited or permitted to be operated shall be subject to seizure, by any police officer of the city, whether under the authority of this section or Section 29.39 or otherwise, shall be returned to the owner or person claiming the same except pursuant to an order of a court of competent jurisdiction.”

Under these ordinances the City proposed to confiscate all pinball machines found in use in Columbus and suit was brought in this court to enjoin such action, being the case of Ferguson et al., v. The City of Columbus, Case No. 187, 169, 70 Abs 277.

The basis for the relief asked was similar to that in the instant case, namely that the ordinances were unconstitutional in that they (1) authorize seizure and confiscation of games without proof of their use for gambling purposes; (2) They impair the obligation of contract; (3) They take owners’ property without due process of law: (4) are so vague, indefinite and uncertain as to constitute a denial of due process of law; (5) deny the owners equal protection of the law; and (6) constitute an unreasonable exercise of police power, attempt to delegate judicial and/or legislative power.

All of these claims were denied in the answer, but a further allegation that the ordinances described amended former ordinances which permitted the registration and licensing of the games involved, was admitted.

A temporary restraining order was granted and defendants filed an answer as above indicated, and then filed a motion for judgment on the pleadings, which motion was sustained by Judge Harter of this court.

On appeal to the Court of Appeals, this judgment was reversed on the grounds that the Court had erred in sustaining defendant’s motion for judgment on the pleadings, in dissolving the temporary restraining order, and in entering final judgment in favor of defendants. The Court held that issues were raised by the pleadings which required a determination of facts by the Court from evidence adduced' upon trial.

In commenting on Sec. 29.38 above quoted, the Court said:

“This section permits the seizure of the machines if they register odds or a score without the qualifying language which is carried into the penalty section of Sec. 29-42-2. It also authorizes the seizure of the machines if their operation ‘tends to encourage gambling,’ another provision that is not carried into the other penalty provisions of the ordinances. The section further authorizes any police officer to make the seizure, that is to say, if a police officer determines that the machines ‘tend to encourage gambling’ he may seize them.
“This section of the ordinance not only sets out the essential requisites upon which seizure may be made, but incorporates the other sections of the ordinance and provides that if the machines come within any specific characterization of the section or are violative of any other named sections of the ordinances, they may be seized. * * * The provision for seizure, of Section 29-38 of the ordinance under consideration, is invoked upon the declaration that operations such as are therein defined, constitute a nuisance which may be abated. The City has wide police power in defining and declaring what shall constitute a nuisance. Insofar as the section authorizes seizure of machines that are gambling devices, per se, or operate in a manner described which is recognized as gambling, there is no doubt as to its validity, but: ‘The mere declaration in an ordinance that is enacted to protect public safety, health or morals will not render it valid as being within the police power unless there is some reasonable relation between such purpose and the regulations prescribed.’ ” Youngstown v. Kahn Bros., 112 Oh St 654.
* * * “The Legislature can prohibit only those uses of property which are hurtful to the public, and the inhibited use must be hurtful in a legal sense. * * * We do not hold that the ordinance is invalid because it characterizes as a nuisance the operation of a machine, therein described, ‘which tends to encourage gambling.’ It is the method of making determination of this essential of a nuisance as a basis of a seizure of the machine which we cannot support. There is no authority in statutory law for the seizure of the machines here under consideration upon the averments of the petition other than as an incident to conviction.”

Thereafter to avoid the effect of this decision, Council passed Ordinance No. 1615.54, which, with the preamble, is as follows:

“To prohibit the possession of pin-ball and certain other similar machines; to supplement the Code of the City of Columbus, 1952, by the enactment of Section 29.69-1 thereof; and to declare an emergency.
“Whereas, the operation of pin-ball machines and similar machines involving chance or skill or reward encourages gaming and the general disorder incident thereto, and is a threat or menace to the peace and morals of the community; and,
“Whereas, even the so-called amusement-only pin-ball machines are so constructed as to be almost identical in appearance and operation to certain gambling devices, per se; and,
“Whereas, even the vast majority of such so-called amusement-only devices are readily convertible to gambling devices; and,
“Whereas, the operation of even amusement-only pin-ball machines has become and now constitutes a nuisance in that it encourages a false sense of values, idling, and loitering; and,
“Whereas, an emergency exists in that such pin-ball machines are now generally absent from the city, but will return unless immediately prohibited; and for the immediate preservation of the public peace and safety; now, therefore,
“Be it ordained by the council of the city of Columbus;
“Section 1. That the Code of the City of Columbus, 1952. be and the same is hereby supplemented by the enactment of new Section 29.69-1 thereof, which said section shall read as follows:
“ ‘Section 29.69-1. Pinball machines, Prohibited. Whoever shall within the city have in his possession, or in his custody or under his control any table game or device commonly known ás a “pin game,” “pinball game,” or “marble game,” the operation, use or play of which is controlled by placing therein any coin, plate, disk, plug, key or other token, or by the payment of a fee, shall be guilty of a misdemeanor and upon conviction shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both.’
“Sec. 2. That for the reasons stated in the preamble hereto, this ordinance is hereby declared to be an emergency measure and shall take effect and be in force from and after its passage and approval by the mayor.

Passed December 6, 1954, O. J. Fi-Ilinger,

President of Council.

Approved December 7, 1954. M. E. Sensenbrenner, Mayor.

Attest: Agnes Brown Cain, City Clerk.”

This ordnance makes it unlawful to possess or operate any pinball machine, irrespective as to whether it is being used for gambling purposes. The theory apparently being that since players may gamble on the outcome of games played, or the owner or operator might award prizes resultant on certain scores, in order to avoid any such possibility, no pinball machines will be allowed to be owned or operated.

The evidence in this case fails to show that the operation of pinball machines for amusement only encourages gaming or disorder or is inimical to the peace and morals of the community. While it is true that the appearance generally of the pinball machines under consideration is similar to those used for gambling, the similarity stops with the appearance.

The essential difference is that they are not equipped or intended to be used as gambling devices, in that each player receives the same number of chances to play for a given deposit, and no one receives or is entitled to receive anything other than amusement or pleasure as the result of his play. They are not readily convertible to gambling devices, but such a change entails the services of a skilled mechanic for an appreciable time, and all the evidence as to the machines in question is that they are not to be so converted.

The evidence fails to support the claim that the operation of these strictly amusement machines constitutes a nuisance, or that an emergency existed by reason of their operation or expected operation, and the conclusions set out in the preamble of the ordinance are not supported by the facts adduced in this case.

That pinball machines designed for gambling and used for that purpose have been rather common, in the past, did encourage gambling and constituted a nuisance, there can be little doubt, nor can there be any question but that under city ordinances or state statutes such use may be and is prohibited. The question then remains as to whether the City has the outhority to prohibit by ordinance the use and operations of pinball machines which are merely designed and utilized for amusement purposes.

Among the cases cited by defendants are two Georgia cases, one of which is Baker v. LaFayette, 44 S. E. 2nd, 255, in which a city ordinance was involved which in part reads as follows:

“Section One. That from and after the 10th day of January, 1942, it shall be unlawful for any person, firm or corporation, to own, maintain, or operate any pinball machine, or similar machine, including all machines operated by depositing a coin therein for the playing of a game or engaging on any contest of chance or skill, including vending machines where the amount of merchandise to which the customer or person playing the machines is entitled, is uncertain, or may in some instances be a larger amount than in other instances.”

The Court held that:

“Pinball machines operated solely for pleasure * * * were within ordinance prohibiting ownership and operation of pin ball machines operated by depositing a coin for playing a game or engaging in any contest of chance or skill.”

In that case, however, the decision seems to have been decided on the basis of the authority contained in the Charter granted to the City of LaFayette, section 29 of which was referred to in the decision as follows: “Section 29 of the Charter of the City of LaFayette conferred authority upon the mayor and council to license, regulate and control * * * every keeper of a shooting gallery, nine pin, or ten pin alley, upon the keeper of any other table, stand or place for the performance of any game or play whether played with stick or ball, ring or other contrivances * * * and upon all establishiments, business callings or avocations not hereinbefore mentioned, and which under the laws and constitution of the State of Georgia are subject to license.”

In the opinion the Court said that:

“Under the Charter of the City of LaFayette, the mayor and council had authority to pass the ordinance in question.”

The decision is short, the Court evidently concluding that the authority to control was authority to prohibit without any discussion on that point.

To the same effect is the case of Wallace v. Cartersville, 45 S. E. 2nd 63, which is another Georgia Case and decided by the same Court, the first syllabus of which is as follows:

“Municipalities have authority under their charters to pass local ordinances prohibiting operation and maintenance of pinball machines within their corporate limits.”

In the case of Ex parte Lawrence, 131 Pac. 2nd, 27, an ordinance of the City of Long Beach was involved, in which the Court held the ordinance “prohibiting maintenance and possession of pin games and other named games in places of business or other places of public resort * * * is not “prohibitory” but “regulatory” only, and hence within the scope and purview of “police power.”

In its opinion the Court said:

“In the case now before us regulation, not prohibition is decreed by the ordinance. The games are proscribed only in places of business, or in any other ‘place of public resort,’ and exception is made of the amusement games described in another Long Beach ordinance. In other words ‘pin ball’ and other games denominated in the ordinance may be maintained at private houses or in certain delineated amusement zones, but not generally in places of business or public resort. The ordinance is not prohibitory, but regulatory only, and as such is unquestionably within the scope and purview of the police power.”

To the same effect is the case of Sharpe v. Johnson, 185 Pac. 2nd. 340, in which the ordinance of the City of Laguna Beach is involved prohibited maintenance of any table game, marble game or similar device in places of business or other public resort, and the Court again held that such ordinance was regulatory only and not prohibitory.

From a reading of these California decisions, one is impressed with the conclusion that had the ordinances been absolutely prohibitory, as the Columbus ordinance is, a different result would probably have been reached.

In the case of Kitt v. Chicago, 112 N. E. 2nd, 607, involved the question as to whether a certain game came within the meaning of a City Ordinance enacted pursuant to an enabling statute which granted authority to municipalities “To license, tax, regulate or prohibit pinball, or bowling alleys, billiard, bagatelle, pigeonhole, pool, or any other tables or implements kept for a similar purpose in any place of public resort.

Pursuant to this authority the Chicago City Council adopted an ordinance prohibiting Bagatelle and pigeonhole, and defined the meaning of those terms.

The Court simply held that an electric bowling game was not included within the definition of the proscribed games, and since the ordinance was restricted to those two games, the operation of an electric bowling game was not a violation of the ordinance.

In the case of Green v. Fifth Inning Base Ball Machine, 3 So. 2nd, 27, the Supreme Court of Alabama had under consideration a statute for the suppression of gambling devices and the court held that the device called a fifth inning baseball machine, which was operated by placing a nickel in slots, which released certain balls and by ejecting balls on board by pulling a plunger and striking against the balls, which would then strike projections or bumpers on the board, a higher score resulting by striking certain numbers than by striking others, was a “game of chance” subject to condemnation as a “gamblng device,” under codal provisions relating to suppression of gambling devices and thus whether the devices are used for gambling or players are offered inducement by way of prizes or other rewards. Among other things the Court said:

“We think it clear enough from the language of this act, especially definition (d), that the law making body deemed it necessary to prohibit all such machines and devices which could be operated as a game of chance, regardless as to whether there was a ‘pay off’ or not, in order to fully repress the gambling evil. That this was within the police power of the state and violated no provision of the constitution, either State or Federal, is well demonstrated in the Eccles case, supra, as well as in our own ease of State v. Murphy, 237, Ala. 332.”

As before stated, this case involved a state statute which might well have more force and effect than a City Ordinance. The Court discussed a case in Arkansas as follows:

“The Arkansas court in Stanley v. State, 194 Ark. 483, had for consideration this same character of machine, and the holding was that it was ‘susceptible to use as a gambling device’ and came within the condemnation of the statute. See also Steed v. State, 189 Ark. 389, where the observation was that such machines are gambling devices ‘because the only reasonable and profitable use to which they may be put is use in a game of chance.’ ”

This observation is directly contrary to the evidence in this case which was that the use of the machines purely for amusement was quite profitable.

This decision is not helpful here in view of the statutory definition of a gambling device in this state which has heretofore been quoted.

In the case of Westerhaus Co. v. Cincinnati, 68 Abs 293, there was under consideration a city ordinance which provided as follows:

“It shall be unlawful for an exhibitor or other person to exhibit, operate or have in his possesson a pinball machine which is not constructed as to make possible, either directly, or by use of an adjustment, the return of cash, tickets, discs or other tokens or certificates of any kind to a player operating the same, whether or not such tokens or certificates have a value of any kind or authorize further playing or other privileges. Only machines operated exclusively for the amusement provided by the operation shall be licensed.”

The effect of the decision in that case was that the possession or operation of a pinball machine was not a violation of the ordinance unless actually used for gambling purposes and the provision in the ordinance as to the possibility of use for gambling was not discussed.

In his opinion overruling defendants’ demurrer to the petition, Judge Gessaman quoted from the case of Frecker v. Dayton, 88 Oh Ap 53, the third syllabus of which is as follows:

“The police power granted to municipalities under Sec. 3, Article XVIII of the Ohio Constitution includes the power to ‘regulate’ but not the power to ‘prohibit.’ ‘Regulation’ does not include ‘prohibition,’ unless the object of the legislative regulation is an inherently evil occupation trade or business.
“* * * whether the machines in question are or create an inherently evil occupation, trade or business, cannot be determined on demurrer. It is a factual question which will be controlled by the evidence.

If used as gambling devices these machines or any machines would create an inherently evil trade or business, but used solely for amusement, which is the effect of the evidence in this case, it is difficult to conclude that they constitute a nuisance or create an inherently evil business.

The ordinances in question being absolutely prohibitory are beyond the authority of council to enact. As drawn the ordinances, if valid, would preclude the possession of a pinball machine in a private home, solely for the amusement of the owner, his family and friends, and this Court is of the opinion that council has no authority to enact such prohibitory legislation.

It might be suggested that the evil consequent on the use of pinball machines for amusement, if such evil exists, could easily be corrected by patterning an ordinance after those of Long Beach and LaGuna Beach in which possession and operation in business or public places be prohibited. This, as pointed out in the California cases, would be “regulation” and not “prohibition” as provided in the present ordinances.

Concluding then that the ordinances under consideration are prohibitory rather than regulatory, and therefore beyond the power of council under the constitution to enact, the motion to dissolve the restraining order is overruled and the order made permanent. An entry may be prepared accordingly.


author: By BARTLETT, J.

text:
    BEXLEY (City), Plaintiff, v. IVEY, Defendant.
    Common Pleas Court, Franklin County.
    No. 186561.
    Decided March 28, 1953.
    ■Harley E. Peters, for plaintiff.
    Russ Bothwell, for defendant.
   OPINION

By BARTLETT, J.

This is an appeal in a criminal case, under §13459-1 GC, from a verdict and judgment finding defendant guilty of a misdemeanor, in the Mayor’s Court of the City of Bexley.

The affidavit on which the defendant-appellant was tried, charged that he “did, then and there damage certain public property, t-o-wit: street light standard at Drexel and Broad, southwest corner, in City of Bexley, in violation of Section 31 of Ordinance 30-51 of the City of Bexley, Ohio.”

Officer Everett testified November 6, 1952, about 7:30 P. M. he arrived at Drexel and Broad. He found defendant’s car up over the curb on the city property between the sidewalk and curb, the front end of the car had passed over a street light, the top portion of which was found five or six feet from its location, the cord or light line in the mount itself had been pulled from the mount, the route marking was about six feet beyond the front of the car. Defendant’s car was found on top of the base of the light mount.

Officer Paul Burke corroborates the testimony of Officer Everett upon this point.

Officer Everett further testified the car was registered in defendant’s name and, also, that the defendant- and the two rider? ip the car said the defendant was the driver at the time of the accident. He also testified the pole was about twenty feet from the corner.

On cross-examination, counsel for defendant, undertook to put words in this officer’s mouth (R. p. 6, 7, 8 and 9), but was not very successful in that respect. In response to a question by counsel (R. p. 8) the officer states: “I didn’t see the accident. I didn’t see the ears collide. I was told by the defendant and the two passengers in the car that he was the driver. They didn’t mention the other car having been in an accident until I questioned the defendant myself at the hospital.”

Thereupon defense counsel, being the only attorney present, proceeded persistently in an effort to show these self-serving statements of the defendant at the hospital — long after his statements at the scene of the accident. Such self-serving declarations were not only incompetent, but are naturally not trustworthy evidence, and are entitled to little, if any, weight. Even then the officer refused several times to permit counsel to put the words in his mouth. In response to counsel’s question (R. p. 9) the officer testified: “He (defendant) did not necessarily say that the other car struck him.”

Counsel (R. p. 9) ask: “As a result of the collision with the first car, his car went into the pole?” The officer replied: “He didn’t say that.”

Objection is raised as to proof that the light pole belonged to the city. It is a matter of common knowledge that such lights at such locations are city property. In response to counsel’s question (R. p. 9), the officer testified why he considered it city property.

In addition to the foregoing evidence, the Mayor had the right to consider the failure of the defendant to testify. Sec. 13444-3 GC. This right is so substantial that it was incorporated in the Constitution of Ohio, Article I, Section 10 thereof.

Defense counsel lays great strees on the fact that the ordinance in question ignores the intent with which the act was done.

“There are many cases, in statutes providing police regulations, making certain acts penal, where this element is wholly disregarded.” 12 O. Jur. Criminal Law, Sec. 18, p. 62, citing Greenleaf on Evidence.

“If an act is made an offense by statute without reference to the intent, the intent with which the act is done is immaterial.” 12 O. Jur. p. 62, supra; Zent v. State, 3 Oh Ap 473; State v. Weisberg, 74 Oh Ap 91.

“1. * * *; jf a statute defining an offense is silent on the question of intent, it is not necessary to allege and prove an intent to commit the offense.” State v. Huffman, 131 Oh St 27.

“Nor shall any judgment of conviction be reversed in any court * * * for the admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby; * * *nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.” Sec. 13449-5 GC, Makley v. State, 128 Oh St 571; State v. Huffman, 131 Oh St 28.

Upon a review of the entire record, there is no substantial error manifest upon the fact of the record; and it does not affirmatively appear from the record, the accused was prejudiced or prevented from having a fair trial, for any cause whatever.

The verdict and judgment of the Mayor’s Court is accordingly affirmed at the defendant’s costs. Entry accordingly reserving exceptions of defense counsel.


author: By THE COURT.

text:
    BEXLEY (City), Plaintiff-Appellee, v. IVEY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4955.
    Decided September 21, 1955.
    Howard C. Park, City Solicitor of Bexley, Columbus, for plaintiffappellee.
    Knepper, White, Richards, Miller & Roberts, John A. Jenkins, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming the conviction and sentence of defendant-appellant for violation of Section 31 of Ordinance 30-51 of the City of Bexley.

Several errors are assigned, but the one principally urged is that the ordinance is unconstitutional because it defined the offense without requiring that the act constituting the offense be done with intent.

All of the questions here urged were presented and considered by Judge Bartlett on the appeal to the Common Pleas Court and he wrote an opinion with which we have been favored and with which we agree in its entirety. We affirm the judgment upon that opinion.

We might add that the facts as stated by counsel and by brief, especially in Common pleas Court, are not found in the bill of exceptions. It is there contended that the defendant while moving through an intersection with the green light was struck by another automobile and forced into and against the light standard which it is shown was damaged by the impact. Had these facts appeared there would have been presented the question whether or not the defendant by his voluntary act damaged the pole and it would appear in the situation, if as claimed by defendant, that the driver of the car which forced him into the pole would have been the malefactor and the man who should have been prosecuted. There was some mild effort on the part of counsel for the defendant to show what occurred in the intersection, and the Mayor who tried the case would not accept the testimony. However, no testimony was proffered by defendant and there is not a single exception to the ruling of the Mayor at any time during the hearing. Thus the question sought to be raised is not presented. There is no doubt that the City of Bexley had the right to define the offense as set out in the Ordinance, it being the class of offenses which are mala prohibita, as set out and discussed in Judge Bartlett’s opinion.

No assignment of error is well made.

The judgment will be affirmed.

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


author: By GRIFFITH, J.

text:
    UNION COMPANY, An Ohio Corporation, Plaintiff-Appellee, v. COBB, a Minor et, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5319.
    Decided November 4, 1955.
    Robins, Metcalf & Alton, Richard S. Metcalf, of Counsel, Columbus, for plaintiff-appellee.
    James F. Little, Columbus, for defendant-appellant.
    (NICHOLS, PJ, GRIFFITH, J, of the Seventh district, and FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By GRIFFITH, J.

This is an appeal on questions of law from the decision of the Municipal Court of Columbus in favor of plaintiff, tried by the Court without the intervention of a jury. The petition alleges in substance that the defendant obtained from the plaintiff certain merchandise by the fraudulent scheme of charging merchandise to the account of Mrs. Taylor Ray and Mrs. Ben W. Chiles, in the amount of $456.78, and in its second cause of action it asks for attorney’s fees for the prosecution of this case.

The only errors assigned relate to the sufficiency of the evidence and the sufficiency of the petition. This is an action in fraud. Fraud may be predicated on a false identification. The defendant procured the merchandise by misrepresenting that she was Mrs. Taylor Ray and at another time that she was Mrs. Ben W. Chiles, and she forged their names to the charge slips as revealed by the eleven exhibits of the plaintiff. The sale of this merchandise was induced by these representations resulting in injury to the plaintiff.

Defendant contends that the petition is insufficient in that it does not contain the six essential elements requisite to maintain an action for fraud, and that lacking these averments does not state a cause of action. With this contention we respectfully disagree. In the case of Gleason v. Bell, 91 Oh St 268, it was held that such averments are not necessary. If the recital of the transaction in the petition sufficiently shows the ingredients, that is all that is required. Tested by the rule laid down in this case we hold the petition sufficient and we further hold that the evidence is overwhelming in support of the judgment entered by the Municipal Court.

Judgment affirmed.

NICHOLS, PJ, FESS, J, concur.


author: By HORNBECK, J.:

text:
    MICHAEL, Plaintiff-Appellant, v. MICHAEL, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 734.
    Decided November 26, 1955.

      Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    Howard G. Eley, Greenville, for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from the amount of the award of alimony to the plaintiff, in that it is inadequate, and further, the court erred in holding that it did not have jurisdiction to settle the property rights of the parties.

Defendant, in his brief, argues at considerable length that the divorce decree should not have been granted and that the evidence did not support the charges upon which it was based. Inasmuch as the decree was awarded to the plaintiff and the defendant has filed neither an appeal nor cross-appeal, we may not test the validity of the decree.

In the judgment entry the court finds the value of the real estate jointly owned by the parties to be approximately $12,500.00. That there is due $500.00, the purchase price of the lot which the parties sold and which was adjacent to the residence. The court further found that there was a first mortgage on the real estate in the sum of $5,000.00; that the parties owned an automobile and truck, each of the value of $300.00, titles to which are in the name of the defendant; household goods of the value of $1,200.00, including a new refrigerator upon which there is a substantial balance due, and that the tools and inventory of defendant amount to about $400.00. The court awarded as alimony to the plaintiff the household goods, the passenger automobile and the sum of $1,500.00 and $15.00 per week for the support of the minor child of the parties.

The proof of the earnings of defendant, who is in the electrical and plumbing business, is somewhat uncertain. His profession would indicate that he has substantial earning capacity. It further appears that he was regularly employed at $2.00 per hour and that he sold certain electrical appliances and plumbing fixtures. These articles were sold on order and on commission which according to his testimony varied from 10% to 20%. The plaintiff says that defendant earned at least $100.00 per week. He says that it was about $50.00 per week. It does not appear that the defendant realized any considerable profit on materials sold to his customers. It is difficult to determine how much of his income was thus received. His expenses were not heavy. He had one man employed to assist him, to whom he paid $1.50 per hour. It would appear that defendant would easily and regularly receive at least $75.00 net per week from all sources.

Some suggestion is made in the respective briefs that each party is physically unable to carry on and earn substantial sums of money. However, we do not find from the record that either party is in poor health or unable to work and earn. The plaintiff has been a bookkeeper and in probability could secure employment. It is obvious that this she will soon have to do unless she receives some financial assistance over and beyond that which she is now receiving or which was awarded to her as permanent alimony. If she retains and invests the $1500.00, the return on this amount of money would be negligible. The only practical use that she could make of it would be to spend it as carefully as possible until such a time as she could be gainfully employed. The difficulty with plaintiff accepting employment is that she has two daughters, the oldei by a former marriage, age 15, at the time of the trial, toward whom the defendant owes no obligation of support, and the younger, daughter of the parties, age 5. The older girl is in school and it is evident that if the mother accepts employment she must have someone to take care of the younger daughter. In this situation, $15.00 per week without more would be inadequate to support, maintain, and clothe the child and to provide someone to look after her while her mother was at work. If the matter of the care of the child could be assured, plaintiff probably could maintain her on the $15.00 allowed, and as we understand the appeal, does not question this allowance.

The court allowed the sum of $1500.00 to the plaintiff as alimony. The total equity in the real estate jointly owned, and what is due on the lot which was sold, is about $7500.00, $3750.00 representing the equity of each of the parties. If the costs of the suit, attorneys’ fees, and other expenses aggregate $500.00, the defendant is obligated to pay $2000.00 which, if taken from his equity in the real estate, would leave his total value therein at $1750.00. The tools and the truck are essential to the operation of his business and of little or no value to any person other than himself. We cannot say that the permanent alimony awarded in lump sum is inadequate except as it relates to future support for the plaintiff.

We may not lose sight of the fact that a divorce does not release the aggressor, if a husband, from the obligation of support for his former wife. Fickel v. Granger, 83 Oh St 101; Lape v. Lape, 99 Oh St 145; Klump v. Klump, 96 Oh Ap 93. Any other interpretation of the law would relieve a husband, no matter how grevious his conduct toward a faithful wife, from any obligation to support her after she had been deereea a divorce. Of course, there are many facts and circumstances to take into consideration. Where, as here, the wife is comparatively young, has a profession or occupation which will enable her to earn and support herself, the problem presented to the judge who has to fix support money is how far in the future should provision be made for her support? That alimony in the form of support money may be ordered paid out of future earnings is well recognized in Ohio since the case of Lape v. Lape, supra. To like effect, Washington v. Washington, 61 Abs 52, this Court.

We are of the opinion that the court should make some additional award to the plaintiff for her support. It need not be in a large amount, nor continue beyond a reasonable period. Support money orders can always be made to continue until the further order of the court, and are subject to modification. The court could either fix a definite time limiting the duration of the order for support money that a certain sum be paid, at certain times, until the further order of the court, or could award, instead of a lump sum of $1500.00 alimony and support, a share in the real estate as alimony and support in any amount up to the one-half which is owned by the defendant. In this connection, some thought should be given to the living accommodations of the plaintiff and the child of the parties.

The judgment entry, insofar as germane to the second assignment, recites:

“The court not having jurisdiction * * * to adjudicate property rights of the parties, the court dismisses the claim of the plaintiff for adjudication of property rights * *

The court, in effect, made division of the personal property. He awarded all of the furniture and the Chrysler automobile, the title to which was in the defendant, to the plaintiff. All of the remaining personal property was left in the possession of, and in effect, awarded to the defendant. This left no personal property undisposed of by the decree. The order of the court then, which is properly challenged on this review, is the holding that the court had no jurisdiction to divide the real estate upon the general prayer of both parties for adjudication of property rights.

Appellant apparently is of the opinion that the holding of the court was in accord with and by reason of the opinion of this Court in Flatter v. Flatter, 71 Abs 89.

The opinion in the Flatter case was not in its entirety carried into the judgment and it must be restricted to the facts developed in that case, wherein the defendant (the husband), the aggressor, was the only appellant. In discussing the so-called property settlement, as against the claim of defendant that it was excessive, we pointed out that after the payments of the debts which had been fixed by the trial judge, the value of the holdings, real and personal, of the parties was $18,828.50. The total amount of alimony awarded to the plaintiff, the aggrieved party, was $182.85, which could have been paid from the defendant’s share of money of the parties in the hands of the Clerk of Courts. In this situation, defendant was ordered within forty days to pay to plaintiff the sum of $8,182.25, in default of which that the land, owned in equal parts by the parties, be sold and that upon payment to plaintiff the sum of $8,182.25, she “shall execute a deed for her interest in the land and release by necessary conveyances all her right, title and interest in and to any of the chattel property heretofore referred to.” It was in this connection that we held that the division of property was improper and that “it accomplishes a partition of the property, a remedy not permissible in divorce cases.” We are fully in accord with that statement and refer to the cases cited in the Flatter v. Flatter opinion, supra, and particularly to the opinion of Judge Stuart in Huff v. Huff, 79 Oh Ap 514, and the first syllabus in this case.

Whether or not an action for partition may be joined with an action for divorce, we do not decide, as there is no proper pleading on behalf of either party asserting a cause of action for partition The general prayer in the pleadings of both parties for a division of property grants the court no jurisdiction to partition the real estate.

We do not hold that the court in a divorce case, where both parties are within the jurisdiction of the court, may not determine the ownership of any real estate or personal property involved, or fix the ownership of any personal property, whether in the plaintiff, the defendant, or both, and the debts of the parties and to what extent each is liable. But this determination cannot be made to bind a creditor who is not a party to the suit and a divorce trial is not the forum to litigate disputed claims of such creditors.

The statute §3105.20 R. C., in connection with §3105.18 R. C., in view of the repeal of §11992 and §11993 GC, will bear study when the facts presented require its judicial construction. When such a case is presented, the strong brief of appellant on the subject will be helpful. But we find nothing in this appeal which may not be or has not been disposed of under the terms of specific statutes and thus it does not call for the application of any further equitable principle. The trial judge no doubt was cognizant that under the statute, §3105.18 R. C., the alimony award could have been made to the plaintiff from the one-half interest of the defendant therein. This he did not choose to do.

We do not find the second assignment of error well made.

The first assignment of error having been established, the judgment will be reversed and the cause remanded for further proceedings according to law.

MILLER, PJ, CONN, J, concur.


text:
    HURLESS, d. b. a. RAY’S PLAYHOUSE, Appellant, v. DEPARTMENT OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5275.
    Decided October 28, 1955.
    Reed Winegardner, Washington C. H., McFadyen & Swisher,'Norton R. Webster, of Counsel, Columbus, for appellant.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellee.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control which had affirmed an order of the Department suspending appellant’s license permits Class C-2 and D-2 for a period of 120 days. The charge found to have been proven was that,

“the permittee on June 8, 1952, at about 1:40 A. M. prevented, hindered and obstructed officers of the law from making an inspection or search of his permit premises in furtherance of their duties.”

We have before us the opinion of Judge Gessaman affirming the order of the Board of Liquor Control and might well affirm on this opinion, with which we agree in all material particulars. We do not, however, pass specifically upon the authority of this court to modify an order of the Board of Liquor Control which is found to have been supported by reliable, probative and substantial evidence. Suffice to say, that if we had such authority it is only when it is found that the order of the Board discloses an abuse of discretion. This we cannot find on the instant appeal.

We comment briefly upon some of the contentions urged in this Court by the appellant.

It is said that if former §6064-63 GC authorizes officers of the law to make an inspection or search of the permit premises without a search warrant it is unconstitutional, in derogation of Article I, Section 14 of the Ohio Constitution. This provision of the Constitution is a protection of the private citizen against unreasonable searches and seizures. Independent of §6064-63 GC, upon the testimony of the Inspector of the Board, he had probable cause to believe that an offense was being committed in the permit premises when he sought entrance thereto and this would have justified a search. It may not be said that a search is unreasonable if at the time a criminal offense, in probability, is being committed.

It is urged that §6064-63 GC must be qualified by reading into it the necessity that to give effect to the right accorded an officer to make search, he must hold a search warrant. If such requirement was requisite to the effectiveness of the section there would have been no need or purpose for its enactment because with a search warrant an officer could do all that the section authorizes, provided only that he show proper cause.

The §6064-63 GC must be read in connection with §6064-61 GC and so doing, it is manifest that the officers mentioned in §6064-63 GC are exempted from the provision of §6064-61 GC.

The necessity of legislation such as is embodied in §6064-63 GC to the proper enforcement of the Liquor Control Act is self-evident. Such a provision restricted to the premises of permit holders manifestly does not contemplate an unreasonable search or seizure.

Finally, appellee, as a permittee under the Liquor Control Act, is not in the status of a private citizen. He secures his permit, operates the permit premises and conducts his business subject to the provisions of the Liquor Control Act. If, in any particular, it could be said that §6064-63 GC invaded his Constitutional rights, it is such a Constitutional right as could be waived. By securing his permit and electing to operate under the Liquor Control Act, he has waived the Constitutional protection, if any, of the Ohio Constitution as to the right to search his premises and seize property if found to be in violation of law.

We are satisfied that the Common Pleas Court judgment in this case was correct in all particulars and should be affirmed.

Judgment affirmed.

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


text:
    COLUMBUS (City), Plaintiff-Appellee, v. CONLEY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4973.
    Decided February 3, 1954.
    Chalmers P. Wylie, City Atty., J. Russell Leach, Asst. City Atty., Columbus, for plaintiff-appellee.
    Edward F. Lynch, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the Municipal Court of Columbus from a judgment of conviction on a charge of possessing “numbers” slips used in a scheme of chance.

The affidavit was in the words of the ordinance and was sufficient to charge an offense. Sec. 13437-4 GC (§2941.05 R. C.); State v. Marcinski, 103 Oh St 613; Belden v. State, 10 Oh Ap 292.

There was evidence presented of sufficient probative force to justify a conviction. The record shows that the arresting officer testified in detail as to the procedure followed in conducting the “numbers” game and stated the manner in which the slips taken from the defendant were used. His testimony indicates he had sufficient knowledge oh which to base his statement that the slips taken from defendant were used and intended to be used in a scheme of chance. Although the witness was not qualified as an expert in the customary manner, the testimony given had that effect. See Hathaway v. Farley, 22 O. C. C. N. S. 462, affirmed without opinion in 76 Oh St 562. In the absence of an objection such evidence may be considered. See Cincinnati and Harrison Turnpike Co. v. Hester, 12 C. C. 350; Allen, Adm’r. v. Lowe, 19 C. C 353.

The ordinance is not unconstitutional on the ground that it contains more than one subject; Vol. 28 O. Jur. p. 439, Sec. 276; nor on the ground that it operates extraterritorially as claimed by appellant.

Judgment affirmed.

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


author: By FULTON, J:

text:
    SPANG, Plaintiff, v. CLEVELAND TRUST COMPANY et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 679783.
    Decided April 19, 1956.

      Kuth & Meyers, Cleveland, for plaintiff.
    Morley, Stickle, Keeley & Murphy, Jones, Day, Cockley & Reavis, Joseph M. Poe, Cleveland, for defendants.
   OPINION

By FULTON, J:

In this will contest case some of the defendants have moved for dismissal on the ground that this Court lacks jurisdiction. It is urged that jurisdiction is wanting for lack of necessary parties. The claimed necessary party is the Attorney General.

The claim for his need as a party is based on §109.25 R. C., which, inter alia, provides:

“The attorney general shall be a necessary party to and shall be served with process or with summons by registered mail in all proceedings, the object of which is:
“(1) To terminate a charitable trust or to distribute its assets to other than charitable donees, or
“(2) To depart from the objects or purposes of a charitable trust as the same are set forth in the instrument creating the trust, including any proceeding for the application of the doctrine of cy pres, or
“(3) To construe the provisions of an instrument with respect to a charitable trust.
“A judgment rendered in such proceedings without service of process upon the attorney general shall be void, unenforceable, and shall be set aside upon the attorney general’s motion seeking such relief.”

The placed emphasis was on (1) namely that the' object of the will contest proceedings is to terminate a charitable trust and to distribute its assets to other than charitable donees.

It is doubtful whether it was the intention of the legislature to make this section of the statute applicable to will contest cases. However, the meaning of this section is not to be discerned from the believed intention of the legislature but from the intent revealed by its language.

Helpful to the ascertainment of the meaning of this section (§109.25 R. C.) will be a consideration of another section in the same chapter, namely, §109.23 R. C. The latter section defines charitable trusts to which §109.25 R. C., is applicable and describes those excluded from its application.

That section (§109.23 R. C.) inter alia, provides:

“There are excluded from this definition and from the operation of such sections, trusts until such time as the charitable, religious or educational purpose expressed in such trust becomes vested in use or enjoyment.”

A hearing on this motion consisted of evidence, statements and arguments of counsel.

The will in evidence provided for the payment of debts. The residue was bequeathed and devised to the Pearl Street Savings & Trust Company, predecessor in name to the Cleveland Trust Company with which it merged. The bequest and devise was in trust for specific uses and purposes. These were to pay to each of two cousins, Belle Walker and Jessie Fleharty, $25.00 per month, or $50.00 monthly to the survivor of them. Jessie Fleharty predeceased the testatrix. It then provided that the trustee should maintain and support the father of the testatrix “during the term of his natural life and for his proper interrment.” The father has passed away. Next this will provided that upon the contingency of the death of the father of the testatrix and “after making provision for the bequest hereinbefore to my said cousins” one fourth of the income should be paid to the Rainbow Hospital, another one fourth to the Eliza Jennings Home of Cleveland. The remaining half, the will provided, should be known as “the John F. Fleharty Fund” and “be used by my trustee as a revolving loan Fund for the education of young people.”

The important phrases prescribed by §109.25 R. C. are “all proceedings,” “object” and “charitable trusts.”

The term “all proceedings” is indeed all embracive. It includes all proceedings known to our law. It includes to be sure, a will contest case. The purpose of such contest (§2741.04 R. C.) is to ascertain whether a given paper writing is the last will of a certain decedent. That statute provides that in a will contest action “an issue must be made up, either by pleadings or an order on the journal, whether or not the writing produced is the last will and or codicil of the testator, which issue shall be tried by a jury.”

The petition herein, by its prayer, sought exactly that determination. It named all necessary parties unless the Attorney General becomes one of “the other interested persons” (§2741.02 R. C.) if the will in a contest case (proceeding) creates a charitable trust as defined in §109.23 R. C.

Is a defined charitable trust (§109.23 R. C.) created by the instant will? Vigorous arguments pro and con were made. If a charitable trust was created did that trust vest upon death of testatrix in use or enjoyment? Equally vigorous arguments pro and con were presented. What effect does vestment have? What kind of vestment is intended by §109.23 R. C.?

The trust created by the will appears — using everyday parlance — to be charitable in part. That appearance is reasonably clear as to the Rainbow Hospital and the Eliza Jennings home. It is doubtful as to the educational fund; and it is not charitable with respect to the cousins or the father.

As to the apparent charitable portions, does that definition of a charitable trust in §109.23 R. C. apply? Excluded from the operation of §109.25 R. C. (Attorney General necessary party section) are those for charitable, religious and educational purposes, unless and until the purposes of “such trust becomes vested in use or enjoyment.”

The trust created by the paper writing here presented is charitable within the definition of §109.23 R. C. if it has become vested not only in title but also only if their expressed purposes become vested “in use or enjoyment.”

The law favors early vesting of estates. See National Bank v. Boone, 139 Oh St 351.

“Syl. 2. The law favors the vesting of estates at the earliest possible moment and a remainder after a life estate vests in the remainderman at the death of the testator, in the absence of a clearly expressed intention to postpone the vesting to some future time.

“Syl. 4. Where a testator wills a part of his estate to another, directing that she shall receive therefrom a stipulated sum annually for and during her natural life and further provides that after her death the unconsumed portion shall be paid to “my heirs, share and share alike,” the remainder in such portion of the estate as may be unconsumed by the life beneficiary vests at the testator’s death in such person or persons as then answer the description of testator’s heirs under the statute of descent and ■ distribution in force at such time, unless a contrary design on the part of the testator is plainly apparent.”

Under the foregoing rule the survivorship of John F. Fleharty may not have postponed title vestment if the paper writing is the last will and testament (what about vestment “in use or enjoyment”)? Moreover the law will not permit a trust to fail for want of trustee. Francis v. Anthony, 46 Oh Ap 121; 40 O. Jur. 202, Section 58. See also §2109.26 R. C., on the subject of Filling a Trustee Vacancy. As recently as March 7th, 1956, the Supreme Court of Ohio in the case of In re: Evans, 165 Oh St 27, restated the proposition that “a will ordinarily speaks as of the death of the testator.”

It is therefore the Court’s view that the trust, of whatever character or nature, was intended by the testatrix to vest upon her death, and pursuant to the principles of law the title to-the corpus of the trust may have vested in the trustee. Since the evidence reveals the trust consists of personalty only, to-wit, stocks and bonds in the amount of $89,000.00, it is doubtful whether this trust has vested in either use or enjoyment to the beneficiaries; and whether, therefore, the charitable trust falls within §109.23 R. C. in use to the trustee. During administration of an estate debts are paid before, but ordinarily distribution is not made until after, period within which a will contest may be commenced (§2113.21 R. C.). The effect of §2113.21 R. C. is to hold distribution in abeyance. Adams v. Gurklies, 56 Abs 167. Generally the administrating fiduciary awaits at least that period, or until he is ready to distribute or has distributed to other direct devisees and legatees, before he delivers the trust corpus to the trustee; and this is true if the same person or institution is both executor and trustee.

During will contest a fiduciary is not authorized to distribute assets (§2113.21 R. C.) so, whether or not title to a trust corpus vests in a trustee earlier, vestment of the trust “use” and “enjoyment” is postponed, it appears, during pendency of will contest. Will use or enjoyment ever vest unless and until final account is approved?

If one assumes (1) that this will creates a charitable trust and (2) that this trust has vested not only as to title but also either “in use or enjoyment” (i. e., that these are charitable trusts within the definition of §109.23 R. C.) the present problem is not solved because the phrase “the object” needs attention.

The word “object” according to the Oxford Universal Dictionary is “the thing aimed at, purpose, end”; or according to Webster’s Collegiate Dictionary “aim, motive” or as quoted from Webster in defendants’ brief, “That on which the purposes are fixed, as the end of action, or effort; that which is sought for;” or, as applied to an individual in that uniqueness peculiar to the Honorable Learned Hand, it “is the concluding state of things that the actor seeks to bring about.” Douds v. International Longshoremen’s, 224 F (2d) 455 (1955).

It is worthy of note that Judge Hand, by reason of the facts before him in the particular case, was defining “object” in relation to the individual actor. This Attorney General section relates the word “object” not to a person or persons, but to “proceedings.”

The prayer of the petition, as defined in Ballentine’s Law Dictionary, is “that part of a pleading which designates or asks for relief sought.” The purpose of the prayer in a will contest is defined in §2741.04 R. C. as above outlined. The prayer or the relief sought in this will contest case is whether the paper writing at issue is the last will and testament. That is the sole and only issue. Morever, if it be assumed that “prayer” and “object” are synonymous, is not the sole and only “object” of the will contest, the ascertainment whether the paper writing is the last will and testament.

A successful attack upon a purported last will and testament results in the non-existence of all contained in the so-called will. On the other hand a successful attack through a proceeding to terminate a testamentary trust will destroy that trust, but otherwise leave the will intact.

During the arguments one of counsel for plaintiff humorously stated that his client’s object was to get the money. Such may be her object. Her object might even be to terminate the trust, but the object of the proceeding (not of the plaintiff) is to determine whether the paper writing is the last will and testament. The will contest proceeding is not to invalidate the will or to set the will aside. It is to determine what the paper writing is.

The illustration of “object” by Judge Hand follows:

“If 11 wish to enter my house, but can do so only by passing through my garden, my ‘object’ is to enter the house and it is not a subsidiary ‘object’ to pass through the garden. On the other hand however, if I find the garden gate locked, and I take out my key, the ‘object’ of my doing so is to open the gate, though it is still only a step toward entering the house.”

Let us apply the illustration of Judge Hand keeping in mind that Judge Hand’s definition of ‘object’ relates to person and not to proceeding:

“If I wish to enter my house but can do so only by passing through my garden, my ‘object’ is to enter the house, and it is not a subsidiary object to pass through the garden. (The proceeding by will contest herein has as its object the determination of whether the paper writing is or is not a will, and it is not a subsidiary object of that proceeding to terminate the trust in the paper writing.)”

The second sentence in the illustration follows:

“On the other hand, however, if I find the garden gate locked and I take out my key, the ‘object’ of my doing so is to open the gate (the object of the will contest proceeding is to find out whether there was or is a will) though it is still only a step toward entering the house (Though the actor-plaintiff may look upon the proceeding as a step toward entering the area of the trust benefits.)”

The object of this will contest proceeding is to determine one simple issue: Whether the paper writing is the last will and testament of the testatrix. It it is found not to be, then it never was the last will and testament; and nothing was bequeathed or devised by it, and nothing was created by it. The object of the proceeding is not primarily, if at all, to terminate a charitable trust. The will contest proceeding may result in the non existence of a purported trust created by a paper writing, having no recognition in law as a conveyancing, assigning, transferring, bequeathing or devising instrument.

This is a question of first impression and should be passed upon by the reviewing courts.

The motion to dismiss is over-ruled. Exceptions to each and all moving defendants.


author: By SKEEL, J:

text:
    KISH, Plaintiff-Appellant, v. CLEVELAND (City) (CTS), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23584.
    Decided January 12, 1956.

      Coleman Kiss, Albert H. Kiss, for plaintiff-appellant.
    Hornbeck, Ritter & Victory, Robert Mooney, for defendant-appellee.
   OPINION

By SKEEL, J:

This appeal is on questions of law from a judgment entered on a jury verdict for the defendant. The action is based on a collision between the automobile of the plaintiff and a streetcar of the defendant which occurred at the intersection of East Ninth Street and Carnegie Avenue in Cleveland, whereby the plaintiff claims to have suffered personal injury and damage to his automobile. The plaintiff claims the following errors:

“1. The Trial Court erred in granting defendant’s Motion to Refije its Amended Answer to Second Amended Petition which contained a so-called second defense, said second defense having previously been ordered stricken from the Amended Answer to Second Amended Petition by previous order of the court, sitting in Court Room No. 1.
“2. The Trial Court erred by submitting, in writing to the Jury, defendant’s ‘Special Charge Before Argument No. 1.’ ”

The following facts are not in dispute. The defendant was operating a streetcar south on East Ninth Street somewhat after 7:00 A. M. on September 3, 1949, and at that time the streetcar was approaching and passing through the intersection of East Ninth Street with Carnegie Avenue in the City of Cleveland moving in a southerly direction. The plaintiff, at the same time, was driving his 1936 Chevrolet automobile East on Carnegie Avenue and when he came to the intersection of East Ninth Street, the traffic control signal light was red for Carnegie Avenue traffic and green for East Ninth Street traffic. The plaintiff, who was driving in the middle lane of the three eastbound lanes of Carnegie Avenue, brought his automobile to a stop just west of the west crosswalk of East Ninth Street. The streetcar, when it got to the intersection, proceeded through and as it was doing so, the plaintiff started his automobile forward and a collision resulted. The disputed question of fact has to do with when the traffic light changed and whether or not either or both parties were right fully in the intersection or not, that is either in compliance with or in violation of the traffic signal controlling traffic at that intersection.

Carnegie Avenue is a very wide street. There are six traffic lanes marked off, three for east bound traffic and three for west bound traffic as shown by the evidence.

To give consideration to the errors claimed, a detailed consideration of the evidence is necessary. The plaintiff’s first witness was a soldier coming to Cleveland to visit his wife on a seventy-two hour leave from Fort Monmouth, New Jersey. He refused to state how he happened to be going south on East Ninth Street at 7:00 A. M. to go to his wife’s address on West 11th Street when coming from Warren on U. S. Route 422. This witness, while driving south on East Ninth Street, had stopped behind the streetcar involved in the collision as it took on a passenger at Eagle Avenue which is the first intersection on the west side of East Ninth Street, two to three hundred feet north of Carnegie Avenue. He testified that after the streetcar doors were shut and the streetcar started forward, he passed the streetcar in second gear and then stopped for the red light at Carnegie. He said that the streetcar then passed him into the intersection, but by that time the plaintiff “had started through, when they both connected: * * This witness could not remember what parts of the auto and streetcar collided. He said the streetcar then cleared the intersection and stopped. On cross-examination, when asked how far he was from the traffic light when he first noticed the light, testified:

“I would say — -I had just passed the streetcar or just was getting ready to pass it when I noticed the light changing and I knew I wasn’t going to make the light so I would say that I was approximately twenty-five to thirty feet from the intersection.
“Q. From the intersection?
“A. When the light turned to caution, yes.
“Q. By caution, you mean red or yellow?
“A. No, yellow.
“Q. Yellow?
“A. And when I approached the intersection, it had been red by the time I hit the intersection.”

This witness also testified that the front of the streetcar was south of Carnegie when the accident happened. This witness could not tell the speed of the streetcar at the time of the collision or what part of the streetcar came into contact with the automobile.

The second witness was driving East on Carnegie Avenue, the same as was the plaintiff, and had stopped at the west crosswalk of East Ninth Street on the red traffic signal in the east bound traffic lane next to the center of the street so that the plaintiff was to his right. His description of the accident on direct examination was as follows:

“The light turned green. I started forward. I looked north on East. Ninth Street and the streetcar was coming and I stopped. I pulled across the crosswalk and stopped. The fellow in the car next to me, in the second lane, I guess, he kept on going.”

This witness said that when the streetcar entered the intersection, the traffic light was red for East Ninth Street and that the streetcar was going twenty to twenty-five miles per hour. On cross-examination, he said the East Ninth Street crosswalk was seven or eight feet wide and that he may have only proceeded two feet when he stopped and that Kish kept on going and ran into the side of the streetcar. The witness was then shown plaintiff’s exhibit No. 1 (a picture of the streetcar) by plaintiff’s counsel, and he marked the point of impact at the front right corner of the streetcar. Upon cross-examination, he testified that his recollection of the facts was better in 1949 when he testified in another hearing under oath than at this time. This record shows that in 1949, he testified under oath:

“Q. * * * You only moved a couple of feet?
“A. Yes, sir. .
“Q. And he ran into the side of the streetcar back of the center doors, didn’t he?
“A. As I recall it, yes, sir.
“Q. Were these questions as you — and did you give these answers under oath?
“A. If you have them there I must have, Yes, sir.
“Q. And that was the truth?
“A. Yes, sir.”

The next witness testified he was standing on the southwest corner of the intersection. He said he was going downtown on errands. He said the traffic light was red for Ninth Street traffic. Further, on direct examination, he said he saw the streetcar pass a standing southbound automobile. The streetcar went against the red light, that the streetcar was going twenty to twenty-five miles an hour and that he did not give his name to the police.

On cross-examination, he said the accident happened at 7:00 A. M., that he was going to Bonds to look at suits because there was a sale. (Bond’s Store did not open until 10:00 A. M.). He said Bonds was to be the “culmination” of his errands, that he was going first to the Cleveland Cut Flower Company on Eagle, although on the first trial, Bonds was his only destination. He also said at the first trial he was walking north on East Ninth from his place of work located on the westside of East Ninth Street south of Carnegie and was fifty feet from the corner when the collision occurred and that he saw the streetcar and auto when they were fifteen or twenty feet apart and that the streetcar traveled five to six feet after the accident. It is a matter of common knowledge that a streetcar going twenty to twenty-five miles per hour could not possibly stop in five or six feet. The witness also said he gave his name to a passenger in plaintiff’s car although the plaintiff said he was traveling alone.

The plaintiff testified he was standing in the second eastbound traffic lane on Carnegie Avenue at the west cross walk of East Ninth Street waiting for the light to change to green for Carnegie traffic. That when it changed, he started forward until he hit the streetcar. That he never looked to the left or saw the streetcar from the time he started forward until he hit it, having been in fact looking to the right because of the closeness of the car in the curb lane that turned right into East Ninth Street. That plaintiff has no vision in his left eye resulting from an industrial accident in 1944 but he did not list such physical defect on his application for a driver’s license. The plaintiff was due at work at 7:00 A. M. at 12th and Carnegie. The accident took place after 7:00 A. M. at Ninth and Carnegie, which establishes the fact that he was then late for work. On cross-examination the plaintiff testified:

“Q. After the traffic light turned to green, you at no time ever looked to your left for approaching traffic before this accident occurred, did you?
“A. I looked on the light, it is green.
“Q. Mr. Kish, you have testified twice before about this, haven’t you. In the first trial and in the second trial?
“A. Yes.
“Q. You at no time after that light turned green ever looked to your left for approaching traffic before this accident occurred, did you?
“A. I don’t look.
“Q. You didn’t look, did you?
“A. No.
“Q. So your answer is no?
“A. No.
“Q. All right, so you never saw the streetcar before the collision occurred, did you?
“A. No, I did not see the streetcar.
“Q. All right, when the collision occurred, you were shifting into second gear, weren’t you?
“A. Yes.”

The defendants produced as witnesses two passengers and the motorman to give evidence about the facts of the collision. The first one knew nothing of the occurrence until the automobile hit the streetcar which he said was just about at the middle. He said the streetcar was not traveling fast, about ten to fifteen miles per hour and was halfway across Carnegie Avenue when this accident happened.

The motorman, who had thirty-nine years experience as a transit company motorman, now retired because of illness, said the accident was after 7:00 A. M. He had stopped at Eagle Avenue to take on a passenger. That the place where he stopped was about two hundred feet north of Carnegie Avenue. That the light was green when he went into the intersection of East Ninth with Carnegie and that he was going ten to fifteen miles per hour. He saw cars standing and headed east on the southside of Carnegie. That he tapped his gong. He then looked straight ahead and proceeded until he heard a crash at the rear end of the car and stopped in ten feet. When he stopped, the front of his car was at the south crosswalk of Carnegie. When he got out. the auto was behind the side doors of the car. He then got in his car and moved it forward so as not to block Carnegie traffic.

On cross-examination, he testified that when he stopped at Eagle Avenue, the Carnegie traffic light was red but turned green as he proceeded forward when he was two hundred feet away.

The final witness was a porter employed at a laundry. He was seated on the right side of the streetcar at about the middle of the car. He testified that the traffic light was green when the streetcar got to Carnegia Avenue and as it passed through the intersection, the auto started up and hit the side of the streetcar about midway. The plaintiff charges this witness in his brief as being illiterate. If such fact was important to the plaintiff, evidence should have been introduced to support such claim. Without evidence, the plaintiff has no right to make such statement in his brief.

The first claim of error is not well taken. The second defense to plaintiff’s second amended petition charged that the plaintiff’s negligence was the sole proximate cause of his injuries and damage. Such an allegation is, of course, unnecessary but could in no way prejudice the plaintiff. The defendant owes no obligation to establish that he was not negligent and no pleading is necessary as a basis of establishing negligence on the part of the plaintiff contributing proximately to his own injury or, in other words, to establish contributory negligence. But even though this be true, the plaintiff could not be harmed in the slightest by the amendment to the defendant’s answer.

The second claim of error is founded on the giving of defendant’s request to charge before argument No. 1 which was as follows:

“Benjamin Kish was required to be in the exercise of ordinary care for his own safety while operating his automobile and if you find that such care required him to look to the left for southbound traffic on Ninth Street before entering the intersection and you further find that he failed to so look, then he would be negligent. If you find such negligence directly caused or contributed to cause the collision, then Benjamin Kish cannot recover and your verdict must be for the defendant, the City of Cleveland.”

The defendant is entitled to have the jury instructed upon its theory of the case if there is any evidence to support it. In this case the defendant’s evidence is that its streetcar entered the intersection when the traffic light was green for Ninth Street traffic; that its car then had a legal right to proceed. That when its streetcar had passed the center of the intersection, the plaintiff ran into the side of such streetcar. The plaintiff’s first witness testified that when he was twenty-five to thirty feet from the East Ninth-Carnegie intersection, the traffic light facing East Ninth Street changed from green to yellow and that the streetcar proceeded on at twenty-five miles per hour. It is a matter of common knowledge that at such a wide intersection as that of East Ninth and Carnegie, when the caution light is displayed, it is displayed for at least three second intervals between the alternate red and green signals. At twenty-five miles per hour, the streetcar was going 37-V2 feet per second and would have traveled 112.5 feet before the green light would show for Carnegie traffic. If this evidence of the plaintiff be accepted as true, the streetcar was directly across plaintiff’s path before he had a legal right to proceed. The law is that a plaintiff who leaves a place of safety and drives into a danger which is obvious and directly in front of him, and which he could not avoid seeing under the circumstances as testified to by credible witnesses, would be guilty of negligence no matter what color the traffic light might be as then displayed. The charge given, which stated that if the jury found under the circumstances that the exercise of ordinary care would require the plaintiff to look to the left, then the failure to do so constituted negligence as requested by the defendant, stated a correct proposition of law involved in the case, based on the fact situations claimed by the defendant and supported by credible evidence and was therefore properly given! A request to charge before argument does not have to encompass more than one proposition of law applicable to facts presented by the evidence.

It is claimed that this same question was presented to this court in a previous appeal when this court reversed the trial court for failure to charge contributory negligence and in journalizing its conclusions on that record said that no other errors were found in the record. That entry was based on the evidence in that case and not on the evidence as completely detailed above and presented in the trial from which this appeal is taken. We are not called upon to determine nor do we have the means of knowing now what the evidence was in the first appeal or in what respects it differed from that which is now before us. Such claim is not well founded.

A careful analysis of all of the evidence by the jury would warrant them to conclude that the streetcar moved across the intersection with at least the protection of the caution light because the plaintiff did not come in contract with it until it had passed all three westbound lanes and until it was across the middle traffic lane for eastbound traffic, the streetcar moving at such a slow speed that it could be stopped within ten feet. That the plaintiff, in driving his automobile east on Carnegie, stopped as required by the traffic signal, proceeding after the light changed to green, from a standing position and moving not over thirty feet before it collided with the middle or rear of the streetcar directly in his view. A verdict for the plaintiff under such circumstances, if established by a fair analysis of all the evidence, would be against the manifest weight of the evidence. There can be no question but that the record clearly discloses that substantial justice has been done the plaintiff by the verdict of the jury in this case, and his appeal should be dismissed.

Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.