author: By KOVACHY, J:

text:
    PARKER, a. k. a. J. L. PALKER, Plaintiff-Appellee, v. FRIENDT, now MARY RICCHETTI, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22944.
    Decided March 10, 1954.

      McDonald, Hopkins, Hood & Hardy, Cleveland, for defendant-appellant.
    Steven W. Kormendy, Cleveland, for plaintiff-appellee.
   OPINION

By KOVACHY, J:

This cause had its inception in the Municipal Court of Cleveland where plaintiff-appellee obtained a judgment by confession on a cognovit note signed by defendant-appellant. The judgment was satisfied through garnishment proceedings. Defendant thereafter filed a petition to vacate the judgment and was permitted to file an answer and cross-petition. The issues thus joined were tried to a jury which brought a verdict in favor of plaintiff on the petition and the cross-petition. On such verdict, judgment was rendered by the court. Upon appeal to this court, the judgment was reversed and the cause remanded for further proceedings. The jury, in the second trial, again brought in a verdict for the plaintiff on the petition and the cross-petition on which judgment was rendered and the appeal on questions of law from this latter judgment is now before us.

Plaintiff’s petition in substance alleged that $1600.00 with interest was due from defendant on a certain promissory note, attached to and made a part of the petition, which the defendant had failed to pay according to its terms and conditions.

The defendant in her answer denied that she was indebted to the plaintiff on the promissory note in any sum whatsoever and further said that without denying that the signature on said alleged promissory note was her own, denied that she placed it on the paper with the knowledge that the same was a promissory note to pay the plaintiff the sum of $1600.00 or any other sum. She plead further that the note was wholly without consideration and that the obtaining of it by plaintiff from defendant was fraudulent and void.

Defendant’s cross-petition set forth in detail the court proceedings culminating in the satisfaction of the original judgment and then reiterated the claims made in the answer and prayed “that the judgment obtained by the plaintiff against defendant as aforesaid, be vacated and held for naught and that plaintiff’s petition be dismissed and that defendant be awarded a judgment on her cross-petition in the amount of $2092.95 with interest at six percent from June 6, 1950, together with costs of this action.”

Plaintiff filed a reply denying defendant’s claims in her answer and cross-petition.

We have read the bill of exceptions carefully. Plaintiff testified that he advanced $1600.00 to defendant to purchase a piece of land with two houses. He introduced an official bank check made out to him as payee in the amount of $1475.00, and endorsed by him and the defendant, which check admittedly was deposited in the real estate transaction. He also introduced a purchase agreement signed by him on behalf of defendant, which verified his claim that he made a cash deposit. Defendant, on cross-examination, admitted that the signature on the note was her signature. Plaintiff’s counsel testified that the note was filled out in his handwriting in his law office in the presence of both plaintiff and defendant and that defendant then and there signed the same with his pen. On sight, thé ink of the filled in matter and the signature seem uniform in body and color.

The defendant in her defense said that plaintiff had cashed some of her pay checks and had kept money owing to her which was repaid in the house transaction, he saying at the time “well, you take the money that you have and the little bit more that you need I will put to it because I owe you that much.” She then explained this claimed remark by saying “for coming in every day to spend his time there,” the two apparently having carried on a close friendship for years despite the marriage status of plaintiff and his four children.

To bolster this claim, however, defendant was able only to produce two paychecks in the aggregate sum of $90.65 which she claimed were cashed by plaintiff for her.

Defendant further testified that at the time the note was signed by her it was not filled out and that plaintiff told her he wanted her to give him a receipt to show that he did not owe her any money so if he and her daughter should come to live with her, if anything should happen to her, her daughter couldn’t turn around and sue him for any money that belonged to her; urged her to “sign this” when she went to get her receipt book, and said “so why bother filling it out. I will just keep it in case I ever have to have it” when she suggested “making it out.”

Plaintiff admitted cashing some of her checks but claimed that in all instances it was a mere accommodation and vehemently denied that he had ever kept any money belonging to her.

The note signed by defendant was of the printed form variety. The printed matter was as follows:

COGNOVIT NOTE
“$-------- Cleveland O._______________ 194__
----promise to pay to the order of_______________________
-------------------------------------------------------Dollars
with interest at the rate of______percentum per annum, at
------------------------ and hereby authorize any attorney
at law to appear in any court of record in the United States after the above obligation becomes due and waive the issuing
and service of process and confess a judgment against-in
favor of the holder hereof, for the amount then appearing due, together with costs of suit and thereupon to release all errors and waive all right of appeal.
---------------------- Seal
No______
----------------------- Seal
Due______________
----------------------Seal”

We believe the verdict and judgment in this case to be supported by overwhelming evidence. Plaintiff’s evidence was positive and specific, fully corroborated by authentic documentary evidence as well as oral testimony of a probative nature. Defendant’s evidence, wholly uncorroborated, was general and vague and in some respects fantastic. Moreover, she obviously is a person of average intelligence and able to read and write. It should be difficult to believe that such a person, while in the full possession of her faculties, signed an instrument, plainly a note on its face, believing it to be a receipt. In our opinion, no intelligent jury, from the evidence in this case, could come to any other conclusion than the one indicated herein.

Lawsuits, by their very nature, must be decided by the evidence in the case. The general must yield to the specific— the nebulous to the real—the vague to the certain. There is no other way known to man to settle controversies. In the great majority of cases justice is thus obtained.

Defendant presents seven assignments of error. Three have to do with the general charge of the trial court. We have considered each in its relation to the charge as a whole and in the light of the pleadings, evidence, issues and verdict.

In Western Ohio Railway Co. v. Fairburn, Admr., 99 Oh St 141, the Supreme Court had the following to say at page 142:

“In determining the question of error in the charge of the trial court to the jury, it is necessary to consider that part of the charge which is claimed to be erroneous, in connection with the- entire charge, to determine if the charge as a whole is erroneous; or, if any part thereof is erroneous, whether the same is prejudicial.”

The issues made by the petition and answer were simple (1) did the defendant sign the promissory note believing the same to be a receipt rather than a note? (2) Was the defendant indebted to the plaintiff in the sum of $1600.00 at the time?

The defendant claims the emphasized portion of the following instruction to be prejudicial:

“Now, under the law, members of the jury, while you can read and write' is chargeable responsibility in signing any document. It is the duty of one who can read or write and who is of average intelligence and has mental ability to understand, to know what he is sigining (and if he signs in blank then he is charged with the responsibility of whatever is filled in later on).”

The plaintiff’s case is bottomed on the claim that defendant signed a note complete in every detail. Defendant’s case rests on the claim that the instrument, when signed, was in blank, she signing what she believed to be a receipt. Clearly then it was one or the other. The jury by its verdict adopted plaintiff’s version. Even had they found for the defendant, the legal significance of matter filled in on a blank note would have been of no moment to them since that question patently was not involved in the case. In our opinion, the jury could not have been misled by this instruction and no prejudicial error ensued.

“Generally speaking, error in the instructions given in civil cases is not ground for reversal unless it is calculated to mislead the jury to the prejudice of the party seeking reversal.” 4 O. Jur. 2d, Appellate Review, Sec. 986, pg. 253.

The other claims of prejudicial error as to the charge of the court have to do with the Burden of Proof on the cross-petition, and Degree of Proof required in proving fraud in connection with the cross-petition. We believe the charges given by the court to be erroneous but not prejudicial under the circumstances existing in this case. The cross-petition asked for the return of money paid plaintiff in satisfaction of the very note that is the subject of controversy here. Manifestly, when the jury found for the plaintiff on the petition and in effect decided that the original judgment on the note was just and the money paid in satisfaction of it proper, the cross-petition asking for the return of that money fell of its own weight and the finding on it had to be for the plaintiff. No consideration of the cross-petition by the jury under the circumstances was required whatsoever. Such-was the very instruction given the jury by the trial court when it said:

“If you find that the plaintiff has proved by a preponderance of the credible evidence that his allegations are true, then you will find for the plaintiff, and you will find for the plaintiff on his petition and assess his damages at $2,120.54 which is the amount of the judgment obtained and the interest today; and find for the plaintiff on the defendant’s cross-petition.”

It is obvious, therefore, that any instruction given the jury with respect to the cross-petition became of no concern to the jury upon its finding for the plaintiff on the petition and played no part in the final determination of this cause.

Defendant complains that she was not permitted to show want of consideration because objections to questions asked of defendant about money belonging to her and kept for her by the plaintiff were sustained. Answers were proffered in the record. These disclose that the answers proffered to these questions were that the plaintiff kept about $1200.00 of her money. We believe that had the answers to these questions been allowed they would have been subject, in each instance, to a motion to strike with instructions to the jury to disregard them since, in effect, they were self-serving conclusions wholly unsupported by other evidence and of no probative value. Moreover, the record shows many instances where defendant was permitted to testify to monies owed her by plaintiff shown by the following:

“Well, up until about July of 1943, my daughter and I always pooled our earnings; and my home was entered at that time and Mr. Palker told me that I shouldn’t leave my money at home, and if I give it to him to handle why it would be safe.” (Record p. 25.)
Q. “Did you, over the period from June ’43 up until the purchase of this house, did you turn any money over to Mr. Palker?
“A. Well, sometimes I got it back and sometimes he put it in his pocket to keep for me.” (Record p. 26.)
“A. Well, I didn’t have quite two thousand; and he says, ‘Well, you take the money that you have and the little bit more that you need I will put to it because I owe you that much.’—for coming in every day to spend his time there.” (Record p. 29.)
“Q. Was that the only bank account that you had?
“A. That is, beside the money that I had at home and what Mr. Palker had.” (Record p. 43.)

There was no prejudicial error in this regard.

The defendant also complains that the testimony of a “Lie Detector” operator was erroneously excluded. We believe the court acted correctly in this respect. Courts of Ohio have uniformly excluded such testimony except in the case of an agreement between the parties themselves to allow such evidence. We recognize the fact that this instrument has demonstrated much usefulness in many fields of endeavor. The introduction of its results as evidence in a court of law, however, presents many difficulties. Exponents of it admit some limitations. Inbau, The Lie Detector, 26 B. U. L. Rev. 264 (1946), reports the following estimate based on the experience of the Chicago Scientific Crime Detection Laboratory: (1) the examiner can make a definite and accurate diagnosis in 75% of the cases; (2) the record will be too indefinite in its indications to permit a definite diagnosis in 20% of the cases; (3) the margin of probable error is 5%.

Another experiment which attempted to distinguish between actual guilt of crime and mere guilty knowledge, reports 86% accuracy (39 J. Crim. LL. and Criminololgy, 532) (1948) (5 Vanderbilt Law Review, 1951-1952).

The operator presented in this case was a police sergeant of the City of Shaker Heights with 3-Vz years experience with the polygraph. No explanation was permitted the jury as to the scientific principles utilized in the operation of the instrument or its probable accuracy. The questions and answers proffered into the record, out of the hearing of the jury, had to do with the questions propounded the defendant during the test, answers to them, and the operator’s interpretation and conclusion with respect to them.

The instrument used as a lie detector is a complicated affair. It is, in fact, a combination of many instruments, that is why it is called a polygraph: “the cardiograph for pulse rate, sphygmograph for blood pressure, the pneumograph for the respiratory movements and the galvanograph to record galvanic reflexes.” (5 V. L. R. supra.) Each mechanism automatically registers the physiological reaction of the subject, as indicated above, on a moving graph. The fundamental theory underlying its operation rests on the premise that the voluntary, conscious and intended misstatement of a fact by any person creates an emotional disturbance within one’s body that irrepressibly manifests itself by accelerated changes in certain physiological processes i. e. heart beat, blood pressure, breathing and perspiration. From the simultaneous recording of this information, the operator obtains the data on which he bases his conclusion as to whether the person interrogated consciously and intentionally lied in his answer to questions propounded during the test material to the matter under investigation. The polygraph, thus, may establish the fact that the person was lying, but cannot prove that he was not telling the truth, only that he was telling what he believed to be the truth. (Vanderbilt Law Review, supra.)

The test includes three separate entities; the machinery, the operator, and the subject. Were it allowed in evidence, the operator would be subject to cross-examination with respect to each. We assume that his expertness in this case extended to a full knowledge of the method of operation and limit of accuracy of each of the four instruments that comprises the mechanism and that his own qualifications were adequate. But, how would he be legally competent to answer pertinent and searching questions as to the physiological and phychological reactions involved with respect of the subject.

Would he know what part, if any, race, national origin, environment, age, habits, past experiences, temperament, fear, state of health, nervousness, etc., play in the psycho-physiological responses to emotional stimulae of different individuals? These would be relevant questions in the situation and would be perfectly proper to ask since the weight a jury might give to the opinion of the expert may be dependent upon the answers given.

Mr. Keeler, the inventor of the lie detector, believes that until operators are selected by examination and licensing, the tests of his machine should be unavailable for court room -use. (Vanderbilt Law Review, supra.)

Certain it is, that, inasmuch as the results of the test depend upon delicate physiological reactions in response to psychological disturbances within an individual, a court, called upon to pass-upon the admissibility of such results as evidence in a case, would have to insist that the person conducting the test and testifying in court concerning it have sufficient training and knowledge to fully understand the significance of these manifestations in the human body as related to the subject under consideration, in addition to a complete comprehension of the mechanism utilized as well as a broad experience in the operation of the instrument.

We find no court of last resort that has ruled favorably in the admission of this character of evidence.

People v. Becker, 300 Mich. 562; Boeche v. State, 151 Neb. 368, 37 N. W. (2d) 593; State v. Cole, 354 Mo. 181; People v. Wallace, 98 C. A. 2d 124.

We hold, therefore, that the results of tests made on an apparatus called the polygraph, and known as a lie detector, are inadmissible in evidence during the trial of a cause in a court of law in its present state of development and operation, general scientific recognition and public acceptance.

Error is also claimed in the refusal of the trial court to give three special charges to the jury before argument. No. 1 of these reads as follows:

“I charge you as a matter of law that if you find the defendant, Mary Ricehetti, did not, at the time of the signing of the note, know in fact that it was a promissory note, your finding must be for the defendant, Mary Ricehetti, on both the petition and the cross-petition.”

In our opinion this charge is erroneous. It is not complete on the subject. The defendant contended that the paper she signed was represented to her to be a receipt by the plaintiff. This phase of the case, so important in the matter of the signing of the note, is omitted.

Special charge No. 2 reads:

“I charge you as a matter of law that plaintiff, J. L. Palker, has the burden of proof to satisfy you by a preponderance of the evidence that the instrument in question here was given for the consideration stated, $1600.00. This burden does not shift to defendant at any stage of the case, and although such instrument in the hands of J. L. Palker is deemed prima facie to have been issued for a valuable consideration, yet the burden is always upon plaintiff, J. L. Palker, to satisfy you that upon all of the evidence the consideration stated in the instrument was in fact the consideration for it.”

This charge, likewise, is not. complete on the subject and therefore erroneous. It fails to say to the jury that while the burden of proof on the question of want of consideration remains with the plaintiff throughout the case, the burden of proceeding with the evidence shifts to the defendant once the plaintiff makes out a prima facie case by the introduction and acceptance of the note in evidence.

In State ex rel. v. Hoff, 140 Oh St 236, at page 239, the Supreme Court said:

“In such a case the plaintiff may rest without offering any evidence to prove consideration for reasons which are obvious. A promissory note imports consideration and and when execution and delivery are admitted or shown and the note offered in evidence a prima facie case is made out. The burden to go forward with respect to the defense of want of consideration is upon the defendant but the burden of proof rests continuously upon the plaintiff.”

In re Estate of Kennedy, 82 Oh Ap 359, parag. 3, of the syllabus reads:

“A note imports consideration and where the execution and delivery of a note are admitted or shown and the note produced in evidence, a prima facie ease is made out and the burden to go forward with the defense is upon the defendant, but the burden of proof rests upon the plaintiff throughout the trial and does not shift.”

Special charge No. 3 reads:

“I charge you as a matter of law that if you find that defendant, Mary Riechetti, did not voluntarily deliver to J. L. Palker the document in question here, knowing it to be a promissory note, then your finding must be for defendant, Mary Riechetti, on both the petition and the cross-petition.”

This charge is similar to that presented in No. 1, with the added statement “did not voluntarily deliver * * There was no evidence as to the latter. It was clearly erroneous and properly refused by the trial court. 39 O. Jur. 1030.

The defendant claims error on the part of the court in permitting plaintiff’s counsel to testify. She sets forth Canon 19 of the American Bar Association Canons of Professional Ethics, which reads as follows:

“When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”

The facts of this case between plaintiff and defendant were in sharp conflict. Plaintiff testified that he and defendant were in his lawyer’s office when the promissory note was filled out and signed by the defendant. This became the most crucial fact of the entire case. The ends of justice, it seems to us, demanded that any person having knowledge affecting so vital an issue in a case be required to testify. For a lawyer not to testify under such circumstances, would be thwarting the very purpose prompting his efforts in the cause under consideration. We feel there was neither impropriety nor error in this respect.

From a consideration of the entire record in this case, we feel substantial justice has been done defendant and that this case should be affirmed. Sec. 2309.59 R. C.

Judgment affirmed. Exceptions noted. Order see journal.

HURD, PJ, SKEEL, J, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    HARTLEY, Plaintiff-Appellant, v. TIGNER et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4768.
    Decided March 2, 1953.

      Charles O. Weilbacher, Columbus, for plaintiff-appellant.
    Bricker, Marburger, Evatt & Barton, Robert L. Barton, of Counsel, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the defendants-appellees. The petition, after setting forth the operative facts, sought a decree setting aside and declaring null and void the warranty deed from John Tigner to Samuel G. Thorne, one of the defendants; that the premises be impressed with the trust and that a receiver be appointed and for such further relief as may be proper. The appeal is noted as being on law and fact, but during the hearing it was developed that no appeal bond had been given which precluded such an appeal, so appellant elected to. proceed on questions of law only.

The first error. assigned is that the court erred in refusing to appoint a receiver for the property. In view of the finding of the court in favor of the defendants, if correct, this could not have been prejudicial error even though a favorable showing had been made at the time. We therefore find that this assignment is not well- made.

It is next urged that the court erred in dismissing the petition and rendering judgment in favor of the defendants. The judgment entry does not recite the ground upon which the Court based its judgment; hence the same must be sustained if the record contains sufficient evidence when viewed in its most favorable light towards the defendants. It was incumbent upon the trial court to weigh the evidence and in so doing it found that the plaintiff had failed to sustain his claim by clear and convincing evidence, the court saying at page 130:

“THE COURT: Well, the Court will at this time dispose of this case, feeling that the facts are very fresh in the Court’s mind at this time and the decision at this time should be made without further delay.
“Now, the Court of course must weigh the evidence in this case, and the Court is mindful of the rule in an equity case that the evidence offered by the plaintiff to sustain his claim made against the defendant must be clear and convincing and conclusive. The weight of the evidence in this case in my opinion, and under the rule is more convincing on behalf of the defendant, Samuel G. Thorne, than it is on behalf of the plaintiff, Forrest I. Hartley, and that being the case it becomes a very simple problem for the Court to decide that on the issues joined on the pleadings, the evidence and the law, the Court finds for the defendant Thorne and against the plaintiff Hartley. The petition of the plaintiff Hartley may be dismissed and the defendant Thorne may recover his costs.”

The record reveals that there was a conflict in the testimony which was resolved in favor of the defendants by the trial court. It therefore cannot be said that the judgment is against the manifest weight of the evidence.

It is next urged by the appellant that the consideration for the deed which is sought to be cancelled was an antecedent debt which is not value within the meaning of the doctrine of bona fide purchaser and therefore the defendant took the same subject to any equities the plaintiff might have. The law on this question appears to have been somewhat in a nebulous state until the recent case of Dietsch v. Long, 72 Oh Ap 349. We quote the following from the opinion of Judge Guernsey found on page 369:

“We come then to the question of whether the consideration passing from plaintiff to his grantor Roller C. Mc-Anelly for such purchase constituted a valuable consideration, the consideration for such purchase being, as heretofore found, the satisfaction and discharge of a judgment debt owing by the grantor to the grantee.
“In 2 Pomeroy’s Equity Jurisprudence (4 Ed.), 1534. Section 749, the following statement, applicable to this question, appears: ‘Whether the complete satisfaction or discharge or the definite forbearance of an antecedent debt, without the surrender or cancellation of any written security by the creditor, will be a valuable consideration is a question to which the courts of different states have given conflicting answers; but the affirmative seems to be supported by the numerical weight of authority.’
“Finding no Ohio cases reflecting upon this question and being of the opinion that the reasons upon which it is based are sound, we approve the rule established by the numerical weight of authority to the effect that the satisfaction or discharge of an antecedent debt without the surrender or cancellation of any written securities by the creditor constitutes a valuable consideration for the conveyance of real estate, and therefore hold that the consideration passing from, plaintiff to his grantor constituted a valuable consideration.”

The appellant urges, however, that the burden of proof was upon the defendants to prove the antecedent debt which was not done by the proper degree of proof. As stated previously, this being a law appeal, this Court 'cannot weigh the evidence this being the sole function of the trial court. We are therefore of the opinion the Court did not err in finding the defendant to be a bona fide purchaser for a valuable consideration.

It should also be noted that the antecedent debt was not the sole consideration for the deed. The record reveals that Samuel G. Thorne also agreed to assume and pay the mortgage of approximately $2700.00 on the property; that he further agreed to allow John Tigner to live in the premises without the payment of rent as long as he desired to do so.

The last error assigned relates to the striking from the record the following testimony which is that of the plaintiff;

“A. Well, I went down to 910 West Rich to my Aunt’s, that is Philena Tigner’s, and I says, ‘Aunt Helen—’ that is what we called her—‘What is the matter with John?’ She says, ‘Well, I don’t know what is the matter with him any more than he got a few drinks and Samuel G. was down here and John showed him those papers and I guess he put ideas in his head.’ ”

The record reveals that Philena Tigner is deceased and appellant urges that the declaration is admissible under the exception to the hearsay rule found in 17 O. Jur. Section 260, page 329. It is here stated that one of the exceptions to the hearsay rule admits declarations of deceased persons under certain circumstances, to wit:

“Statements of a deceased third party who had no connection whatever, -so far as privity is concerned, with either of the parties to the proceeding, may be admitted in two cases: First, where the matter stated occurred in the ordinary course of declarant’s business or professional duty at or near the time when the statements were made, to his own knowledge; and second, * *

It will be noted that this exception is applicable when the deceased person was not in privity with either of the parties, but the record discloses that Philena Tigner was in privity with John Tigner, a party to this proceeding and therefore we are of the opinion the Court did not err in striking this statement from the record.

Finding none of the errors assigned well made the judgment will be affirmed.

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


author: By CAREY, J.

text:
    STATE, ex KAHLER-ELLIS COMPANY, Relator v. CLINE et, Respondents.
    Common Pleas Court, Lucas County.
    No. 177964.
    Decided June 18, 1954.

      Taylor, Cruey & Kelb, Toledo, for relator.
    William D. Driscoll, Robert Dorrell, Toledo, for respondents.
   OPINION

By CAREY, J.

This is an action in mandamus brought by a property owner to require respondents, as the Planning Commission of the City of Toledo, to approve, as required by §3586-1 GC (now in an amended form, §711.04 R. C.), a plat of a subdivision of relator’s property. This plat subdivided the subject property into certain streets and 223 lots from 91.14 feet to 120 feet wide and from 110 feet to 115 feet deep. The great majority of the lots have an area of 11,000 square feet; the smallest has an area of 10,263 square feet and the largest 12,650 square feet. The sole ground urged in support of respondents’ refusal to approve the plat is that it violates a rule of respondents which provides:

“The minimum dimensions shall be 50 feet width at the building line, 120 feet depth and 6,000 square feet in area.”

The property is located outside of the corporate limits of Toledo but within three miles thereof, and as the City of Toledo has adopted a major street plan for this area it is necessary, as provided in the statute cited, that relator secure respondents’ approval of the plat before it may be recorded. As the property is located outside of the corporate limits of the city, no claim is made that respondents derive any authority in relation to this plat from Section 3 of Article XVIII of the Ohio Constitution, commonly known as the Home Rule Amendment. Nor could respondents derive any authority in relation to this property from this constitutional provision; in Realty Co. v. City of Youngstown, 118 Oh St 204, the Supreme Court said at page 207 of the opinion:

“Municipalities in Ohio have only such powers as are conferred upon them, either directly by the Constitution, or by the Legislature under authority of the Constitution. While the home-rule provisions of the Ohio Constitution, found in Article XVIII, confer certain powers upon municipalities, and while the provisions of that article are self-executing, the provisions of that article do not confer any extra-territorial authority. The direct authority given by that article is expressly limited to the exercise of powers within the municipality. The city of Youngstown therefore has only such authority in the matter of examining and checking plats of lands outside of the city as may be found to be conferred by statute.”

The issue therefore is whether respondents have such authority under the statute to refuse their approval of the plat for the reason advanced by them.

The plat was submitted to respondents for approval on September 11, 1953, and disapproved by them at a meeting' held on September 24, 1953. At that time the rule making authority of respondents as provided by statute was set forth in §3586-1 GC and reads as follows:

“Any planning commission * * * may adopt general rules and regulations governing plats and subdivisions of land falling within its jurisdiction to secure and provide for the coordination of the streets within the subdivision with existing streets and roads or with the city or village plan or plats, for the proper amount of open spaces for traffic, circulation and utilities and for the avoidance of future congestion of population detrimental to the public health or safety; but such rules ■and regulations shall not require the dedication to the general public of open grounds or spaces other than streets and ways, nor impose a greater minimum lot area than thirty-five hundred square feet, nor any requirement as to the minimum percentage of lot occupancy, nor as to the height, bulk, location or use of buildings; and minor streets shall not be required to be wider than fifty feet.”

It is conceded that the statute as it there reads governs this case.

It is well recognized that the power of an administrative board or commission is strictly limited by the statute conferring the power, that such an administrative body has only such powers as are expressly delegated ,to it by the legislature, and that the powers delegated will not be extended by implication. Washington v. Public Utilities Commission, 99 Oh St 70, 72; State, ex rel. v. Pierce, 96 Oh St 44; Cincinnati v. Public Utilities Commission, 96 Oh St 270-274; Peter v. Parkinson, 83 Oh St 36, 49.

As a corollary to this rule, such an administrative body may not, by rules, add to its delegated powers no matter how wise such rules may be or how laudable are the ends so sought to be accomplished. State, ex rel. v. Evatt, 144 Oh St 65, 102; State, ex rel. v. Industrial Commission, 50 N. E. (2d) 680, aff’d. 142 Oh St 193; 72 C. J. S. 383.

The rule relied upon by respondents is clearly beyond the authority delegated to them by the statute and transcends the express limitations therein set forth by the legislature. The respondents are, by the statute, granted rule making power only for (1) the coordination of streets, (2) for the proper amount of open space for traffic, circulation and utilities, and (3) for the avoidance of future congestion. The rule of respondents has no relation to any of these matters, and this is very apparent when the size of the lots in relator’s plat is considered, the smallest having an area of over 10,000 square feet.

But if there could be any doubt as to the legislative intent in granting the limited rule making power to respondents, that doubt is at once disspelled when the express limitations on the power, imposed by the statute, are considered. The statute provides that such rules shall not impose a greater minimum lot area than 3500 square feet nor any requirement as to height, bulk, location or use of buildings. The rule adopted by respondents violates the express limitations of the statute by requiring a minimum size of 50 feet by 120 feet with 6,000 square feet of area, when the statute expressly limits the power to no greater minimum than 3500 square feet. It is obvious that the area requirement is far beyond the authority of respondents and also that either the minimum width or minimum depth requirement of the rule'is beyond the statutory limitation. If respondents require 120 feet of depth then, because of the statutory limitation on the minimum area, they would be required to approve lots of less than 30 feet in width; or if they require a minimum of 50 feet in width then lots of 70 feet depth must be approved. Obviously they cannot insist on both a 50 foot width and 120 foot depth; one part of the rule at least must yield. In paragraph 3 of the syllabus of State ex rel. v. Pierce, supra, the rule is announced that in the interpretation of a legislative grant of authority to an administrative board any doubt must be resolved against the grant of an assumed power But there is no doubt in this case. The rule of respondents has no relation to any of the subject matter for which the rule making power is delegated. It has no bearing on (1) the coordination of streets, or (2) the proper amount of space for traffic, circulation and utilities, or (3) for the avoidance of future congestion. And it cannot be justified as a require' ment that will keep buildings separated, for the legislature has prohibited rules “as to height, bulk, location or use of buildings.”

The rule of respondents is invalid for an additional reason. The free use of property is guaranteed by Section 19 of Article I of the Constitution of the State of Ohio as well as by the 14th Amendment to the Federal Constitution, and these rights can only be invaded by the police power of the'state when the restriction thereof bears a substantial relationship to the public health, morals and safety. State ex rel. v. Joseph, 139 Oh St 229; City of Youngstown v. Building Co., 112 Oh St 654, 658; Vandervort v. Sisters of Mercy, 66 Abs 290; Hardy v. Horst, 64 Abs 228. In the Joseph case the Supreme Court at page 246 of the opinion quotes with approval the rule announced by the Supreme Court of the United States in Nectow v. Cambridge, 277 U. S. 183, as follows:

“The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.”

The rule of respondents has no such relation to public health, morals and safety. Nor does the usual presumption of validity of the acts of public boards apply where, as here, the act seeks to deprive a person of the free use of his property. In such a case the burden of showing such relationship is upon the board adopting and seeking to enforce its rule. State ex rel. v. Joseph, supra, at page 246. Respondents have produced no evidence to sustain this burden. t

Several other reasons have been advanced by relator' as showing its right to the relief prayed for, but these will not here be considered as it follows from what has been said that the rule relied upon by respondents is beyond the authority delegated to them by the statute and is therefore void. For the reasons given the prayer of the relator’s petition is granted.


author: By SILBERT, J.

text:
    LOESCH ALLOTMENT CO. et, v. NEWBURGH HEIGHTS (Village).
    Common Pleas Court, Cuyahoga County.
    No. 591,499.
    Decided July 31, 1950.

      Fackler & Dye, Green, Woods, Lausche & Wilmot, Bulkley, ‘Butler & Pillen, Cleveland, for plaintiffs.
    Rolland Baskin, Joseph T. Eddel, Cleveland, for defendants.
   OPINION

By SILBERT, J.

The village of Newburgh Heights now has a population of about 4,200, which is about the same as it was in 1930. It has a total area of 59 square miles adjacent to the southern boundary of Cleveland; Cuyahoga Heights is immediately to the south of Newburgh Heights. That portion of Cleveland close to Newburgh Heights, substantially all of Cuyahoga Heights and an important part of Newburgh Heights have been developed with a variety of heavy industries. These' heavy industries, many of which have been located in the area referred to about twenty-five years, include steel mills, oil refineries, a coke plant, railroad freight station, street car repair shop, stove manufacturing plant, foundries and chemical plants.

On December 30, 1947, the village of Newburgh Heights adopted Ordinance No. 1947-11 intended to zone the entire area of the village. The zoning ordinance established five use districts. The zoning adversely affects the property of the plaintiff.

The Loesch Allotment Company has, since 1907, owned a large tract of land in the northwest portion of the village of Newburgh Heights. In 1913 the said Loesch Allotment Company subdivided its property, and thereafter sold some lots near Harvard Avenue on which residences were constructed. A large part of the Allotment Company’s property has never been sold. There have been practically no sales of lots during the last 25 years. Because of the industrial development of the area, the physical characteristics of the property, the absence of streets and utilities, the property in question is now wholly unsuited for allotment or residential' purposes.

In November, 1946, American Stove Company, at a cost of $517,500 purchased from Reconstruction Finance Corporation twelve acres of land on which was located a manufacturing plant. The factory had been constructed three or four years earlier with the assistance of the Federal Government for operation by Ohio Crankshaft, Inc., as a war plant: This property is on Harvard Avenue in the village of Newburgh Heights and adjoins the lands of the Allotment Company. The factory contains over 250,000 square feet of floor area.

The Stove Company desired to operate its factory with railroad switching facilities and acquired two additional tracts of land so that a spur track could be constructed connecting the factory with the tracks of the Newburgh & South Shore Railroad. In November, 1946, the Stove Company acquired 12.6 acres of unimproved land from the Allotment Company at a cost of $44,100. As part of the consideration, the Allotment Company also obtained the commitment of the Stove Company to construct a railroad switch over the land acquired and to give the Allotment Company the right to connect additional tracks to the switch to be constructed by the Stove Company. In February, 1947, the Stove Company purchased from Ohio Crankshaft, Inc., ten acres of unimproved land at a cost of $30,000. This completed the lands needed to connect the factory with the Newburgh & South Shore Railroad.

After Loesch Allotment Company sold the. acreage mentioned to the Stove Company, the Allotment Company retained 46.4 acres of unimproved land. It consists of open fields through which there runs a creek. Sewage from some of the residences in Newburgh Heights empties into this creek which is at the bottom of a deep ravine. Part of the Allotment Company’s land is used by the village as a public dump. There is a difference in elevation of about 75 feet from the high land to the bottom of the ravine. There are no streets, paving, sewers, water mains, or other public improvements in the area. There are no facilities for gas or electricity.

The Newburgh Heights zoning ordinance passed in December, 1947, restricts most of the property owned by the Allotment Company and the Stove Company for residential use. The remainder of the plaintiffs’ lands are zoned for commercial purposes. The Stove Company’s factory building was constructed about five years before the zoning ordinance was passed. The industrial character of the area was established about 25 years ago and has continued to develop since that time. The lands have no practical value for residential or commercial purposes. Their only value is for industry. The zoning ordinance has the practical effect of confiscating the plaintiffs’ lands.

The ordinance is assailed on the grounds that it is in derogation of the Fifth Amendment to the Constitution of the United States, and of the provisions of Section 19 of Article I of the Constitution of Ohio, in that it deprives plaintiffs of the value of their lands without adequate compensation. The plaintiffs seek an injunction permanently prohibiting the village of Newburgh Heights from enforcing the provisions of Ordinance No. 1947-11 with respect to their property and that the Stove Company be given the right to construct a railroad switch leading to its factory.

While the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions in a changing world. Although a degree of elasticity is imparted to the application of constitutional principles, statutes and ordinances, if they are found not to conform to the Constitution, they must fall. The ordinance now under review must find the justification in some aspect of the police power asserted for the public welfare. The ordinance cannot under the guise of the police power so unreasonably restrict the use of defendant’s land that it is confiscatory.

The ordinance in question does not promote the public health, safety or welfare of the community by requiring lands in the midst of a heavy industrial area, lacking pavement and utilities, in part used as a public dump and elsewhere traversed by a creek into which raw sewage is emptied, to be used for residential or commercial purposes. This ordinance passes the bounds of reason and assumes the character of merely an arbitrary fiat. The principles of law just mentioned are stated by the Supreme Court of the United States in Village of Euclid v. Ambler Realty Co. 272 U. S., 365. Although the facts in the Village of Euclid case were entirely different and the ordinance was there upheld, the Supreme Court made it clear that zoning ordinances must be reasonable considering the existing circumstances, the rights of the landowners involved and the general welfare of the community.

The Ohio Supreme Court has in numerous cases passed upon zoning ordinances. The general rule followed is that there is a presumption in favor of the validity of the ordinance. The court considering the constitutionality of the ordinance may not substitute its judgment for that of the legislative body passing the ordinance. It is well recognized, however, that all zoning represents an interference with the constitutional rights of property owners. So long as the ordinance falls under the reasonable exercise of police power to preserve the public health, morals or safety of the community, it should be upheld. When the ordinance cannot be found reasonably to preserve the public health, morals or safety of the community and is arbitrary and unreasonable, it must fall. See Pritz v. Messer, 112 Oh St, 628. At page 639 the court said:

“If the ordinance discloses no purpose to prevent some public evil or to fill some public need, and has no real or substantial relation to public health, morals and safety, it must be held void.”

More recently the Ohio Supreme Court in State ex rel Synod v. Joseph, 139 Oh St., 229, 22 O. O. 241, sustained the Court of Appeals in ordering the issuance of a peremptory writ of mandamus to the respondents commanding them to grant a special permit for the erection of a church. The same principles referred to above were outlined and followed in that case.

The court finds that the Village of Newburgh Heights’ zoning ordinance No. 1947-11 does not tend to preserve the public, health, morals or safety of the community. On the contrary, it is arbitrary and unreasonable. It attempts to establish a residential and commercial district in an area not suited for those purposes and wherein heavy industries were established long prior to the passage of the ordinance.

The prayer of the plaintiffs’ amended petition should be granted. The defendant will be enjoined from enforcing the provisions of the ordinance as to the lands of the plaintiffs. The American Stove Company is entitled to construct a railroad switch track leading to its property.


text:
    HOFFMAN, Plaintiff-Appellant, v. CITY ICE AND FUEL COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4422.
    Decided May 31, 1951.
    Henry G. Binns, Columbus, for appellant.
    Vorys, Sater, Seymour & Pease, G. W. Fais, of Counsel, Columbus, for appellee.
   OPINION

By THE COURT.

The question presented on this appeal is whether the Court erred in sustaining the demurrer to the petition, the material averments of which are as follows:

“That the plaintiff ‘drove his truck to the plant of the defendant for the purpose of purchasing and taking delivery of ice; that said plant and facilities including platforms and driveway were under the exclusive management and control of the defendant; that while at said plant and upon said premises for said purpose, .and so engaged—in a manner and under circumstances unknown to him and about which, though requested, the defendant has refused to inform him or divulge the identity of witnesses—he was, by reason of defendant’s negligence in the maintenance and operation of said plant and facilities, violently struck, hit and crushed,’ etc., to his total damage in the sum of $10,839.29.”

In sustaining the demurrer the trial Court was of the opinion that the petition failed to state a cause of action; that the doctrine of res ipsa loquitur did not have application for the reason that the petition did not set forth the instrumentality which caused the injury.

We have examined the well considered opinion of Judge Randall on this question, and are in accord with the legal conclusions therein announced. This Court discussed the doctrine in the case of Cunningham v. Neil House Hotel Co., 33 Abs 157, holding that the instrumentality which produces the injury must be under the control and management of the defendant before it can have application. This would require that it be pleaded, which was not done.

Finding no error in the record the judgment will be affirmed.

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


author: By THE COURT. By THE COURT.

text:
    STATE, ex rel. GILL, Plaintiff-Appellee, v. VOLZ, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4481.
    Decided October 12, 1950.
    Gale R. King, Columbus, for plaintiff-appellee.
    Clarence M. Addison, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Court of Common Pleas, Division of Domestic Relations of June 7. 1950.

This is the third appeal in this cause. Four errors are assigned. In the main they have been set up, considered and passed upon in the former appeals. 52 Abs 521, and No. 4301, Franklin County, October 5, 1949, unreported.

Counsel for appellant urges the propositions of law for which he contends learnedly and • with characteristic ability q,nd thoroughness. We have heretofore considered and determined the principal questions urged to which we adhere. The new matter is not, in our judgment, of sufficient consequence to require a reversal of the judgment from which the appeal is taken.

Decided November 10, 1950.

The judgment will be affirmed.

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

ON MOTION TO CERTIFY JUDGMENT

No. 4481.

OPINION

By THE COURT.

Submitted on motion of appellant to certify our judgment to the Supreme Court because in conflict with the judgment of the Court of Appeals for Hardin County in State, ex rel. Griffin v. Zimmerman, 67 Oh Ap 272. The motion will be sustained.

Replying to the inquiry of counsel would suggest that the judgment entry in this Court be put on before the entry of certification. The certification is to the effect that our judgment is in conflict with the judgment of another Court of, Appeals and it follows that the judgment should be formally spread upon the record before certification made.

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


author: By BOLI, J.

text:
    FEELEY et, Plaintiffs, v. FIRST NATIONAL BANK AND TRUST COMPANY OF HAMILTON, Exr. et, Defendants.
    Common Pleas Court, Butler County.
    No. 60218.
    Decided May 17, 1948.
   OPINION

By BOLI, J.

This is an action by a niece and nephew to contest the will of Alice A. Allen who died on December 7, 1945, and whose will was admitted to probate on February 21, 1946.

This action was brought on November 29, 1946 some nine months after the probate of the will. In anticipation of the question being raised as to the time in which the action was brought plaintiffs’ petition sets out that they are and have been residents of the State of New York and that the executor of the estate of Alice A. Allen knew their address and that each of them are legatees under the will but that no notice of any kind was given them as required by law. That they had no knowledge of the death of testator until about August 11, 1946 and no knowledge of the admission of the will to probate until more than six months thereafter.

The matter is now before the Court upon motions of several defendants asking that the petition be dismissed for. the reason that it was not filed within the time required by law.

The pertinent part of §10504-17 GC provides:

“No will shall be admitted to probate without notice to the surviving spouse and to the next of kin, if any, known to be resident of the state * *

The pertinent part of §10504-32 GC provides:

“If within six months after probate had, no person interested appears and' contests the validity of the will, the probate shall be forever binding * *

Sec. 12087 GC provides in part as follows:

“An action to contest a will shall be brought within six months after it has been admitted to probate.”

Plaintiffs rely upon §10504-23 GC, which in part provides as follows:

“When a will has been admitted to probate, the executor shall promptly give notice thereof by registered mail to the surviving spouse and to all legatees and devisees named in the will. Such notice shall mention the probate of the will and that the person notified is named therein as a beneficiary ”

It is their claim that the positive terms of this section are such that compliance with these requirements is jurisdictional.

We have seen under §10504-17 GC, non-resident next of kin are not entitled to notice of the probate of the will. Persons who are legatees and devisees only are not such interested parties who have a right to contest a will since as beneficiarie's their interest is in sustaining not contesting a will.

Thus, as next of kin, plaintiffs have a right to contest the will—a right they do not have as legatees or devisees only. Being non-resident next of kin they were not entitled to notice either before or after probate and therefore, after the lapse of six months could not bring an action to contest. Therefore, in our opinion §10504-23 GC, requiring the executor to notify legatees and devisees after probate was not meant to place them in a more favorable position than the much more interested next of kin.

It is as next of kin that plaintiffs have brought this action not as legatees and devisees, who alone are entitled to the notice in the above named section. If they were not also next of kin even tho the notice had been given them pursuant to that section, still they could not have contested the will.

In our judgment in providing that such notice shall mention the probate of the will and that the person notified is named therein as a beneficiary the purpose of the legislature was to apprise the beneficiary of the probate of the will and that he is a beneficiary so that he may take the necessary steps to see that his legacy or devise is secured to him.

“Sec. 12087 GC contains an enumeration of the exceptions extending the time for contesting a will, and all others should be deemed excluded. Exceptions in such statutes are strictly construed, and cannot be enlarged even from considerations of apparent hardship or inconvenience.”

McVeigh v. Fetterman, 95 Oh St 292, at page 299.

This same case points out the significant fact that §12087 GC formerly included within its saving clause “persons absent from the state” but that by amendment in 1898 that exception was dropped from the statute.

■ To sustain the contention of plaintiffs in this case would amount to an annulment of the action of the Legislature amending §12087 GC because the saving clause dropped from that section would thus be reinstated by force of judicial construction.

Plaintiffs also question the procedure of defendants in attacking the petition by motion rather than by demurrer.

In the case of Christensen v. Maxen, 29 Abs 219, the second syllabus holds:

“The question of jurisdiction being one properly raised by motion to dismiss, a motion to dismiss a petition in an action to contest a will for not having been brought within the statutory time on which the_ right depends is made with propriety.”

It is plaintiffs’ contention this case is not in point because the facts excusing the delay in bringing the action were not set out as in the case at bar. And it is plaintiffs’ claim that these questions of fact must be determined by the court.

In this we do not agree with plaintiffs since for the purpose of this motion to dismiss the Court must assume the truth of all of the facts alleged in plaintiffs’ petition so that any finding or determination as to these facts is not necessary.

Because of this the motions of the defendants to dismiss the petition will be sustained.


author: By THE COURT:

text:
    FLOOK, Plaintiff-Appellee, v. KEMP, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2251.
    Decided December 4, 1953.
    Southard & Rothberg, O. M. Southard, of Counsel, Dayton, for plaintiff-appellee.
    Matthews & Altick, Hugh H. Altick, of Counsel, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the plaintiff upon the verdict of a jury. A motion for judgment notwithstanding the verdict was filed and overruled. This is alleged to be error and that the court also erred in overruling the defendant’s motion for a directed verdict at the close of the plaintiff’s case. The action is one for damages arising out of the collision of two automobiles at the intersection of U. S. 40 and State Route 311 upon which there was a “stop” sign at the intersection.

The only issue presented by the pleadings is whether or not the defendant was guilty of any negligence as charged in the petition, and the amount of damages, if any, suffered by the plaintiff. The petition charged the defendant with negligence in the following particulars:

1. By failing to bring his automobile to a stop at U. S. Route 40, there being a “Stop” sign located at the northwest corner on Route 311 facing southbound traffic, before entering said intersection.

2. By failing to maintain a lookout ahead for plaintiff’s automobile.

The appellant urges there is no evidence in the record which supports either of the allegations of negligence. It therefore becomes necessary to make a careful examination of the bill of exceptions. In so doing we find that the plaintiff-appellee testified as follows concerning the collision:

“Q. Now, will you describe briefly, Mr. Flook, how the accident occurred?
“A. Well, it happened so fast. When I got there something happened in a flash, you would say. It wasn’t light, but a jar, a sound, and that was all I knowed about it.
“Q. Where did that occur with reference to the intersection of 311?
“A. Right at the crossroads, where 311 crosses. I would say on the right hand side of 40, on the North side of the road.
“Q. In the intersection?
“A. Yes.
“Q. What happened to you then following this crash?
“A. What happened to me?
“Q. That’s right.
“A. I couldn’t tell you.
“Q. Were you rendered unconscious following this accident?
“A. When I really knew what it was all about I was in the Good Samaritan Hospital.
“Q. Do you know about how many hours after the accident occurred when you first remembered?
“A. I can’t answer that question. I couldn’t give you how long.”

The only other testimony in the record concerning the collision is that of one Mary Boone, who testified that she heard the crash, rushed about six steps to her door, and then saw the plaintiff roll out of the door on the right side of the automobile. In response to the question as to the damages she saw to the plaintiff’s car she answered, “Well, the right side was pretty well crushed and there was broken glass.” She testified further a,s to the plaintiff’s physical condition, stating that he was in a dazed condition, with blood on his face and coming out of his mouth, and that he laid upon the ground until removed by an ambulance. Further proof was offered as to the damage suffered, and then the plaintiff rested. The defendant moved for an instructed verdict, and the same was overruled. The defendant then rested without offering any evidence on his behalf.

The question presented is whether there was any evidence offered on behalf of the plaintiff from which reasonable minds might infer that the defendant was negligent as charged in the petition, and which was a proximate cause of the plaintiff’s injuries. We are of the opinion that from the facts presented and taking into consideration the suddenness of defendant’s appearance upon U. S. No. 40, and the amount of damage done to the right side of plaintiff’s car, that the jury-might draw the inference that the defendant failed to stop his automobile in accordance with §6307-42(b) GC, and that it might also infer from this evidence that the defendant failed to maintain a proper lookout. Should we be wrong in these conclusions and there be no evidence supporting the allegations of negligence set forth in the petition, then the doctrine of res ipsa loquitur would have application, for the evidence discloses that the plaintiff was proceeding in a lawful manner with the right of way in his favor and was struck by an instrumentality which was in exclusive control of the defendant. The doctrine was held applicable under similar facts in the case of Motorists Mutual Ins. Co. v. Calland, 93 Oh Ap 543, the syllabus of which provides in paragraphs 1, 2 and 3 as follows:

“1. The rule of res ipsa loquitur is a rule of evidence, need not be pleaded, and where warranted by the evidence will be applied even though specific acts of negligence are alleged in the petition.
“2. The doctrine of res ipsa loquitur asserts that where the instrumentality causing an injury is under the exclusive management and control of the defendant and the accident occurs under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed, the fact of the injury itself affords sufficient evidence to support recovery where the defendant fails to show that the injury did not result from his want of care.
“3. The doctrine of res ipsa loquitur has application in an action for damages arising out of an automobile accident where the defendant, by answer, admits the fact of the collision and the cause thereof is not explained by the evidence and where the evidence discloses that at the time the accident occurred the plaintiff’s automobile was parked on the side and as far off the paved portion of a road as possible, that defendant’s automobile was seen approaching the place of collision on the opposite side of the road and from the opposite direction, and that the collision occurred.”

Finding no error in the record the judgment will be affirmed.

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


author: By BELL, J.,

text:
    WACHUTA, Admx., Plaintiff, v. WACHUTA et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 647915.
    Decided July 28, 1954.
    John M. Connors, Alan Meltzer, Cleveland, for cross-petitioning defendants.
    H. H. Felsman, Joseph Brover, Cleveland, for defendants.
   OPINION

By BELL, J.,

sitting by designation of the Chief Justice.

This is an action for declaratory judgment to determine heirship. The controversy arises between the cross-petitioning defendants who are sisters of Edward O. Wehner, deceased, and children of deceased brothers and sisters of Wehner. and the defendants, referred to as the “Clark defendants,” who claim to be the legally adopted children of Wehner and thus his sole heirs. The matter was submitted on the pleadings, evidence and the very able and' exhaustive briefs of.counsel.

Briefly stated, the facts are as follows: On October 27, 1914, the Insolvency Court of Cuyahoga County granted a divorce to Minnie Clark upon her allegation that more than two years previously her husband, William J. Clark abandoned her and her three minor children, the “Clark defendants” herein. Sometime prior to October, 1919, Minnie Clark married the decedent, Edward O. Wehner, and with her three children moved into his home. In October, 1919, Edward O. Wehner filed a petition for adoption in the Probate Court of Cuyahoga County alleging his desire to adopt as his own the three minor Clark children.

Subsequently, the Probate Court entered on its journal an order of adoption changing the names of said children to Wehner and decreeing that said children should be to all legal intents and purposes the children and legal heirs of Edward O. Wehner.

The record of the Probate Court reveals that one of the children, being fourteen years of age, noted her consent to the adoption in writing. Minnie Clark Wehner, the mother, likewise filed an answer and consented to the adoption. The record of the Probate Court is silent as to any further consent or consents which might have been given.

One question immediately is presented by this situation: Was the Probate Court precluded from taking jurisdiction of the adoption proceedings by virtue of the custody order made by the Insolvency Court in the divorce proceeding?

It is conceded by all parties that if the adoption order is a valid one, the “Clark Defendants” are the legal heirs of Edward O. Wehner.

Although the right of adoption has been known for many centuries under the civil law dating from Greek and Roman civilizations, it was never recognized as a part of the English Common Law and has grown in the United States and England only under specific statutory authority. Sommers v. Doersam, 115 Oh St 139. The first statute on adoption in Ohio was passed in 1859 and is basicly very similar to the present law and to the law in effect in 1919. (56 Ohio Laws 82.) Although the statute has been supplemented considerably since the original act, throughout the years the jurisdiction to order an adoption has been confided exclusively in the Probate Court.

Counsel have cited in their briefs many cases touching upon the questions involved here. The Court is grateful for the exhaustive research that has been made by counsel and has given consideration to all the cited authority. But the Court does not feel it necessary to discuss at length more than a few of the many cases cited.

In the case of In re Adoption of Wyant, 72 Oh Ap 249, the mother of two minor children had been divorced in Indiana and awarded custody of the children. She later remarried and she and her husband filed a petition for adoption in the Probate Division of the Common Pleas Court of Henry County. The natural father of the two children opppsed the adoption order on the ground, among others, that the divorce court in Indiana had the sole and exclusive jurisdiction of the children and that since it had not consented to the decree of adoption the Ohio court was without jurisdiction to enter the decree. The Probate Division granted the petition for adoption and, on appeal, the Court of Appeals held in the first paragraph of the syllabus:

“Where one of the parents had been awarded a divorce and custody of the child, and the other parent had failed or refused to support such child for two consecutive years prior to a proceeding to adopt the child, the consent, under §10512-11 GC, of the former to such adoption is sufficient, notwithstanding the failure of the Court which awarded such divorce and custody to approve such consent.”

It is argued by counsel for cross-petitioning defendants that the Wyant case has no application here because at the time of the purported adoption in 1919 the statute did not require the court awarding custody to approve the consent of the mother, and that this ruling could in no wise affect the ruling in the case of Addams, Judge v. State, ex rel. Hubbell, 104 Oh St 475, which, incidentally, was also decided subsequent to the order of adoption.

The Court in the Addams case held in the syllabi as follows:

1. The court of insolvency of Cuyahoga county in matters of divorce, alimony and the custody of minor children is by statute granted the same jurisdiction as the court of common pleas.

2. Such jurisdiction when once regularly attached is a continuing jurisdiction over the subject-matter and the parties to an action of divorce, alimony and the custody of minor children.

3. Any order of such court touching the guardianship of a minor child is subject to be modified from time to time, as in the judgment of the court the best interests of the child may require.

4. During such continuing jurisdiction other courts, whether inferior or superior, having concurrent jurisdiction of the custody of minor children, are by long and well-settled practice of this state denied the exercise of such jurisdiction.

5. During such continuing jurisdiction of the court of insolvency over a minor child, an order purporting to be made by any other court, appointing a third party as guardian of the person of the minor child, is null and void.

No one will doubt the continuing jurisdiction of a divorce court, whether it be an Insolvency Court of a Common Pleas Court, over the matter of custody of minor children, or as the Addams case says over “the guardianship of a minor child.” And the Court agrees absolutely with the principle of the Addams case. In that case, the Insolvency Court had designated a parent as the custodian of a child. The Probate Court attempted, without a release from the Insolvency Court, to substitute another custodian, a guardian, for the child. This, the Supreme Court held, it could not do.

But that is a different situation from that where the Probate Court, by its order, designates a parent for the child. Judge Wanamaker, in the Addams case, said:

“It has long been the settled law of this state that among courts having concurrent jurisdiction of any given subject matter the court whose jurisdiction rightfully first attaches shall exercise and continue that jurisdiction free from any interference by any other court having a like jurisdiction.” (Emphasis added.)

The Probate Court and the Insolvency Court do not have concurrent jurisdiction in adoption. It has never been the law, and to the Court’s knowledge no attempt has ever been made to establish the law, than an Insolvency Court or a Court of Common Pleas had concurrent jurisdiction with the Probate Court in adoption. That right, since the first Ohio adoption statute, has reposed in the Probate Court. Had the Probate Court in this case attempted to appoint Edward O. Wehner as the Guardian of these children, i. e., as their legal custodian, it would have been exercising a jurisdiction like that of the Insolvency Court which had awarded custody to the mother and the mother, or the natural father, under the Addams doctrine, would have had the right to object.

It is the opinion of the Court that since the Insolvency Court had no jurisdiction in the matter of adoption, the fact that it had made no formal release of what jurisdiction it had acquired in the divorce case did not deprivé the Probate Court of its jurisdiction to enter the order of adoption. And under the principle announced in the Wyant case, the Court is of the opinion that the order of adoption is a valid, subsisting one and that the “Clark defendants” are the legally adopted children of Edward O. Wehner.

A second question posed by the facts herein is an interesting one, although it is perhaps not necessary to decide it, in the light of the above. Assuming that the Probate Court was without jurisdiction to grant the petition for adoption because of the failure of the Insolvency Court to release its jurisdiction over the children, is such lack of jurisdiction something that now may be asserted by the cross-petitioning defendants?

It is conceded in their brief by counsel for the cross-petitioning defendants that if this action be a collateral attack on the adoption order then the cross-petitioning defendants must fail. In the opinion of the Court this question is determined by the case of In re Estate of Dickman, 81 Oh Ap 281.

That case arose on a petition to determine heirship, the controversy existing between brothers and sisters of the decedent and a child who had been adopted. The sole issue raised in the case was the validity of an order of adoption. The court held:

“In a proceeding to determine heirship in an administration of decedent’s estate, where the issue is the validity of a judgment of adoption, an attack on such judgment on the ground that the Court rendering it had no jurisdiction is a collateral attack.” (See also cases cited in the opinion.)

In the light of the above, the Court finds:

1. That the Probate Court had jurisdiction to enter the order of adoption;

2. That the Court was not deprived of that jurisdiction by reason of the fact that the Insolvency Court had previously made an award of custody of these children to their mother;

3. That the cross-petitioning defendants can not now collaterally attack the order of adoption;

4. That Elsie Fiorilli, Clyde Clark and Elroy Clark are the legally adopted children of Edward O. Wehner, deceased, and as such are the heirs at law of Edward O. Wehner.

Inasmuch as the determination of the question presented herein is for the benefit of the administration of the decedent’s estate, the costs are taxed against the Executor of the Estate.

Counsel for defendant may prepare an entry in accordance herewith, noting the exceptions of cross-petitioning defendants and submit the same to counsel for cross-petitioning defendants and to the court for approval.


author: By MILLER, J.:

text:
    MOORE and OHIO CASUALTY INSURANCE COMPANY, Plaintiffs-Appellants, v. JACKSON et, Defendants-Appellees.
    Ohio Appeals, Second District, Preble County.
    No. 129.
    Decided December 8, 1953.
    Harshman, Young, Colvin & Alexander, Dayton, Robert C. Alexander, of Counsel, for plaintiffs-appellants.
    Curtner, Brenton & O’Hara. Dayton, Clifford R. Curtner, of Counsel, for defendant-appellee, Jay K. Jackson.
    Landis, Ferguson, Bieser & Greer, Dayton, Warren A. Ferguson, of Counsel, for defendant-appellee, James Glander.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of both of the defendants herein upon motions duly filed for instructed verdicts at the close of the plaintiffs’ case. The action was one for damages arising out of the collision of the Louise Moore automobile with the truck of the defendant Jackson. The acts of negligence charged in the petition are:

1. Defendant, Jay K. Jackson, failed to keep the 1950 Ford truck which he was driving to the right of the center line of Rt. No. 127.

2. Defendant, Jay K. Jackson, failed to slow down or stop when his view of the highway was impaired by the smoke from the passing train.

3. Defendant, Jay K. Jackson, failed to maintain control over said Ford truck in that he failed to guide it and steer its course of travel away from the path of the Oldsmobile driven by the defendant, James Glander, so as to avoid a collision with said Oldsmobile.

4. Defendant, James Glander, failed to slow down or stop when his view of the highway was impaired by the smoke from the passing train.

5. Defendant, James Glander, failed to keep the Oldsmobile which he was driving to the right of the center line of Rt. No. 127.

6. Defendant, James Glander, failed to maintain control over said Oldsmobile in that he failed to guide it and steer its course of travel away from the path of the Ford truck driven by defendant, Jay K. Jackson, so as to avoid a collision with said Ford truck.

The question presented is whether either of the defendants was guilty of negligence which was a proximate cause of the plaintiffs’ damages. It should first be noted that the Moore automobile was being driven by the husband of the owner, Louise Moore, who was on a mission of his own; hence, the question of contributory negligence does not arise. The negligence of the husband, if any, cannot in this case be imputed to his wife. By giving the evidence its most favorable interpretation towards the plaintiffs, and which we are required to do, we find it discloses the following facts, to-wit: That on the morning in question the defendant Jackson was proceeding northwardly at about 20 miles per hour on U. S. Route 127, in the southern part of Preble County, Ohio, driving a truck heavily loaded with fertilizer; that the highway was covered with snow and ice with the exception of the center of the road, where it had been worn thin or scraped clear. It was a clear, snowy day and visibility was, under normal conditions, very good. Mr. Jackson was driving on his right or east side of the highway and as he approached a point two and one-half miles south of Camden, Ohio, a southbound train approached on the railroad tracks running immediately parallel to and just a little west of the highway. Dense clouds of smoke were coming out of the stack. As he reached the front of the train he slowed down to 10 or 12 miles an hour and was immediately enveloped in a dense smoke. He then pulled to the right as far as he could and headed straight. At the time he hit the smoke, and just as it was enveloping his truck, a car driven by the defendant Glander approached him from the opposite direction, which he did not see because of the heavy smoke. This car struck the left front corner of the truck bed. Jackson testified that this was a light blow, which he heard but which did not cause him to lose control of the truck. He testified that he was positive he was on his right side of the road immediately prior to entering the smoke, and just a second before entering it he was well over on the right edge of the highway and had held his course straight upon entering.

The record further reveals that at this time three cars were headed south on the highway, the first being driven by the defendant Glander, the second by a Mr. Laub, and the third by the plaintiff’s husband, Mr. Moore. They came to a stop for the freight train at Camden, Ohio, about two and one-half miles north of where the accident occurred. These cars proceeded south over the slippery highway and when they reached a curve, which is approximately one mile from the scene of the accident, they were spread out from 100 to 150 feet apart. Moore was driving about 40 miles an hour and continued this speed until within 20 feet of the- disabled cars, and after he had passed through smoke from the train'. The smoke was first observed by Moore when he was approximately three-quarters of a mile from the scene of the accident. He continued in the smoke, heard a crash and then observed the truck lying on its side approximately 20 feet ahead of him, with its front end a little west of the center line of the highway and the rear end in the ditch, and the Laub car blocking the southbound portion of the highway with its front end against the truck and its rear end extending across the right side of the road. The Glander car was in the ditch some distance south of the two entangled vehicles. Upon observing the two vehicles blocking the highway, Moore attempted to stop, and being unable to do so, slid into both the truck and the Laub car.

Plaintiffs’ theory of the case is that either or both of the defendants, Jackson and Glander, were guilty of negligence when their cars collided, causing the defendant Jackson to strike the next car in line, being driven by Laub, causing the truck to overturn, the highway to be completely blocked, and causing the Moore automobile to collide with them.

The motions to dismiss were based upon two propositions, either of which is sufficient to sustain the judgment. They were: (1) The plaintiffs have failed to prove any negligence on the part of either of the defendants; (2) if either defendant was guilty of negligence the same would be a remote cause and not a proximate cause of the plaintiffs’ damages.

A further examination of the record affirmatively establishes that the first contact of the cars of the two defendants was only slight, the left corner of the Jackson truck being struck, but which did not cause Jackson to lose control. Jackson proceeded slowly on his right side of the road and was struck by the Laub car, causing it to overturn. Moore testified that he never saw the truck being operated to the left of the center of the highway and no evidence was offered from which such fact could be inferred at the time of the second collision. When he first saw these cars blocking the roadway they were only 20 feet ahead of him, and since he was following the Laub car by some 100 to 150 feet he necessarily drove the intervening distance after hearing the crash and before making the unsuccessful attempt to stop.

It is a well settled rule of law that to entitle a plaintiff to have his cause submitted to a jury it is necessary that he produce some evidence upon every element essential to create liability, or produce evidence of a fact upon which a reasonable inference may be predicated to support such element. Sobolovitz v. Lubric Oil Co., 107 Oh St 204. It is to be noted that Laub was not called as a witness; hence the testimony of Jackson as to the position of his truck at the time of the second collision is not controverted. The second collision might have been caused by Laub driving his car over the left of the center of the road and into the Jackson truck, causing it to overturn. If the cause of an injury to a plaintiff may be-as reasonably attributed to an act for which the defendant is not liable as to one for which he is liable, the plaintiff has not sustained the burden of showing that his injury is a proximate result of the negligence of the defendant. Gedra v. Dallmer, 153 Oh St 258. Since the cause of the second collision was not established by any proof, no causal connection has been established between the first collision and the plaintiffs’ damage. The trial court properly sustained the motions to dismiss.

Finding no error in the record the judgment will be affirmed.

WISEMAN, PJ, HORNBECK, J, concur.


author: By HUNSICKER, J.

text:
    GLASS, Admrx., Appellee, v. GLASS et, Appellees, and GLASS, Appellant.
    Ohio Appeals, Fourth District, Scioto County.
    No. 599.
    Decided December 12, 1952.

      William H. Horr, Portsmouth, for appellee Alma E. Glass, Individually, and as Admx., etc.
    Robert K. McCurdy, Portsmouth, for appellee Ruth Lewis.
    Emory F. Smith, Ernest G. Littleton, Portsmouth, for appellant.
    (HILDEBRANT, PJ, of the First-District, HUNSICKER, PJ, and DOYLE, J, of the Ninth District, sitting by designation in place of METCALF, PJ, GILLEN, J, McCURDY, J, of the Fourth District.)
   OPINION

By HUNSICKER, J.

In this appeal on questions of law from a judgment of the Probate Court of Scioto County, the appellant, Earl F. Glass, says that:

“1. The judgment and finding of the trial court is not sustained by sufficient evidence.
“2. The judgment and finding of the trial court is contrary to law.
“3. The trial court erred in the admission of the evidence offered by the appellees to .which the appellant objected.
“4. The judgment of the trial court should have been that the appellant, Earl F. Glass, was entitled to share in the distribution of the estate of Earl B. Glass, deceased.”

The record shows that Alma E. Glass, the widow of and administratrix of the estate of Earl B. Glass, filed her petition to determine heirship in the Probate Court, stating that Earl F. Glass, the appellant herein, was a claimant to a share of the estate of the decedent, but that his exact relationship was unknown.

Ruth Lewis, who filed an answer in the proceedings, is admitted, by all parties, to be a natural daughter of the deceased.

Earl F. Glass also filed an answer, and alleged therein that he is a son of Earl B. Glass, deceased.

The testimony presented at the trial was in conflict, but there was sufficient competent evidence to show that Earl F. Glass was brought into the home of Earl B. Glass by a former deceased wife, that she obtained the appellant from an orphanage, and that he was reared in the Glass family as a son and was so considered by the friends and relatives, even though no formal adoption was effected. Adoption is a creature of statute and does not arise under the common law.

The trial court had before it sufficient competent evidence to sustain this view of the evidence, and hence this court cannot say that the judgment is either manifestly against the weight of the evidence or contrary to law.

When Earl F. Glass needed a birth certificate for the purpose of obtaining work, Earl B. Glass and his first wife, whose name was also Alma, executed an affidavit stating that Earl F. Glass was their son.' It was upon the application of Earl F. Glass, supported by these affidavits, that a birth certificate was given to Earl F. Glass, showing him to be the son of Earl B. Glass.

Earl B. Glass also, when his first wife died, listed, in the application for letters testamentary, Earl F. Glass as an heir and next of kin of his deceased wife, Alma.

Earl F. Glass now says that the parties herein are estopped to deny the fact that he is not the natural son of Earl B. Glass.

We cannot agree with counsel as to the position they contend for in this claim. One does not become a child and heir by extra legal acts of the parties.

There were legal methods by which Earl B. Glass could have made the appellant an heir, such as adoption, and by statutory designation of heirship. Earl B. Glass could also have made the appellant a beneficiary by means of a will.

Estoppel, as claimed by Earl F. Glass, the appellant, is of no effect. Against whom should the estoppel be directed: Ruth Lewis, and Alma E. Glass as the administratrix herein?

“An estoppel is defined as a bar which precludes a person from denying the truth of a fact which has in contemplation of law become settled by the acts and proceedings of judicial officers or by the act of the party himself. If the estoppel is by the conduct of a person, it is one of the essential elements that his conduct must have induced another to believe in the existence of a particular state of facts and to act thereon to his prejudice.”

Sanborn v. Sanborn, 106 Oh St 641, at p. 647.

Certainly Ruth Lewis and Alma E. Glass have not estopped themselves in these proceedings. These parties are claiming their rights under the statutes of descent and distribution. Earl F. Glass, the appellant, may have believed in the existence of a particular state of facts, but he did not “act thereon to his prejudice.”

Estoppel generally operates only' against a party to the record. Board of Education v. State, 51 Oh St 531. A collation of authorities on the subject of estoppel of a party to contradict sworn statements made in another action may be found in 113 A. L. R. 925. Estoppel, however, may be claimed to preclude adoptive parents and their privies from asserting the invalidity of adoption proceedings. 142 A. L. R. 122. There is no claim here of adoption ever having been attempted

The appellant, Earl F. Glass, suggests to this court that the order of the Probate Court, finding that his birth should be registered as the son of Earl B. and Alma Glass, is conclusive, and that the trial court was bound by such determination.

The statute which provides for the registration of an unrecorded birth (§1261-57 GC) requires the Probate Court, when satisfactory proof is submitted, to make a finding as to the facts and to order the registration of birth of the applicant. The order so entered by the Probate Court is not a judgment as such term is defined in §11582 GC, nor is it an action within the meaning of §11237 GC. See also: Bird, et al., v. Young, 56 Oh St 210.

The case of Norwood v. McDonald, et al., Admrs., 142 Oh St 299, at p. 305, quotes the approved definition of res judicata as follows:

“A comprehensive definition of res judicata is as follows: ‘The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ * * *
“ ‘If, however, the two suits do not involve the same claim, demand, and cause of action, such- effect will not be ordinarily given to the prior judgment.’ 30 American Jurisprudence, 914, Section 172. To constitute a bar there must be identity not only of subject matter but also of the cause of action. In other words, a judgment in a former action does not bar a subsequent action where the cause of action prosecuted is not the same, even though each action relates to the same subject matter.”

The doctrine of res judicata does not apply to the birth registration order entered by the Probate Court of Scioto County.

There also is evidence in the record to show that Earl P. Glass knew about his birth long before an application for a birth certificate was filed, and that he knew he was not the natural child of Earl B. and Alma Glass. In such a situation, the doctrine of estoppel can have no application. 19 Am. Jur., Estoppel, Sec. 86.

We have examined all of the errors claimed by the appellant, and find none prejudicial.

The judgment is affirmed.

HILDEBRANT, PJ, DOYLE, J, concur.


author: By McClelland, J.

text:
    HOLMES, Exr., Plaintiff, v. KRAUSE et, Defendants.
    Probate Court, Franklin County.
    No. 156234.
    Decided June 3, 1954.
    Howard C. Park, Columbus, for Alice Baer.
    Rowe, Dunkle & Davis, Columbus, for next of kin of Jessie K. Norris, deceased.
    William W. Holmes, Columbus, for executor.
   OPINION

By McClelland, J.

This matter comes before the Court on a petition which is in the form of an application for the construction of a will. The proceeding, however, is not a will construction matter, but an application for a declaratory judgment. The will con•tains the following language:

“ITEM V. I give, devise and bequeath all the rest and residue of my property which I may own at the time of my death, to whoever shall take care of me in my last illness.”

There is no ambiguity in the will and the only question is as to who can prove that he or she has taken care of the decedent during her last illness.

This Court has had a number of occasions to informally construe the phrase “last illness.” On the 6th day of August, 1934, while the Hon. Henry L. Scarlett was acting as Probate Judge, he had an occasion to construe this phrase, and in that opinion we find the following language:

“There seems to be no Ohio cases on this question, but the law is stated and a number of cases cited and digested in 24 C. J., page 426, where it is said: ‘But unless the period is designated by statute, no particular period preceding death can be fixed as constituting the last illness, as the duration of such illness must vary considerably according to the nature of the disease and the condition of the patient. Such statute must, however, be liberally construed and the expression cannot be limited in meaning to the period during which decedent was in extremis, but, on the other hand, it relates to the proximate and not the remote cause of death.’ ”

This Court, in Case No. 61692, had occasion to construe the same language, in which decision this Court used the following language:

“With reference to the claim of Dr. Fletcher and the claim for reimbursement for the payment of the hospital bill, the court upon the hearing found that the decedent was sent to the hospital and operated on by Dr. Fletcher and returned home after a two weeks’ stay at the hospital; that the decedent got well again and in about six months returned to work in his shop, he being a cobbler by trade. The testimony shows that after recovering from the operation the decedent was spry and worked all day at his shop regularly, walking to his shop in the morning, walking home at noon for lunch and walking home in the evening, that he worked in this manner for more than six months, gave up his work about Christmas time and then stayed at home. In May of the following year he was confined to the hospital for three weeks and died on May 30th and that Dr. Fletcher did not attend the decedent after he left the hospital.”

In that case this Court declined to allow the claim of Dr. Fletcher for the reason that the illness for which the Doctor’s claim was based was one from which the decedent recovered; it was not his last illness.

The Court of Appeals of Lucas County, in the case of Murphy, Appellee, v. Langa, Admx., Appellant, 62 Oh Ap 192, has had occasion to construe this statute, the syllabus of which is as follows:

“Where a physician, for a period of several months, treated a patient for a particular disease, and upon, discontinuance of the treatment the patient resumed her usual occupation for nearly a year, at the end of which period treatments for the same disease were again resumed by the same physician, the fees for the treatments given prior to the interim when she ceased to be a patient and resumed work, are not ‘expenses of the last sickness,’ within the meaning of §10509-121 GC, so as to be a preferred claim against the assets of the estate of the patient, although the disease of which the patient died was that for which the physician first examined and treated her.”

At page 196 of the same opinion, the court in explaining why the last illness must be the illness from which the patient never recovers, uses this language:

“Sick persons often continue to do business, even though under the care of a doctor. Especially is that true of tuberculars or victims of cancer. They frequently experiment with different physicians. Because finally they die from tuberculosis or cancer is every one of such physicians entitled, regardless of the time of his service, to be preferred out of the patient’s estate? It seems to us that the reasonable meaning of the phrase precludes, or should preclude, a physician from making claim to a preference, even though his treatment was for the same disease of which the patient finally died, if and when his services are not continuous, but occasional, with long intervals of discontinuance unexplained, and especially when the patient at the time of his death has severed the relation and employed another to look after him.”

It is the opinion of this Court that the last illness as contemplated by the statute and by the testatrix in this matter, is that last illness in extremis from which the patient never recovered, but died.

In the case now under consideration Mrs. Baer claims to be the person who cared for the decedent during her last illness. She claims to have rendered services to the decedent from some time in 1942 up until the time of her death. Her death occurred on the 10th of October, 1953. The testimony discloses that this woman, for a number of years, was suffering with some heart difficulty for the alleviation of which she had been taking medicine. The testimony also discloses that the decedent was active in her political organization and also in the Masonic organization up until the day before her death. She was not confined to bed by reason of her heart condition. On the 9th day of October, 1953, she suffered a coronary occlusion about four-thirty in the afternoon. A news boy found her and reported her condition to Mrs. Baer. Mrs. Baer administered some medicine and called a doctor. She was immediately sent to the hospital where she died about four-forty-five on the following morning.

As to the character of the services which Mrs. Baer claims to have rendered, she testified that she had had her son drive the decedent to the doctor’s office a number of times. She did innumerous courtesies for the decedent in administering her medicine to her, doing some light household duties for her, which duties were performed at irregular intervals.

It is the opinion of this Court that the care contemplated by the statute is care of an individual personal nature and that which is continuous during the period of the last illness. The character of the care contemplated is that which is usually rendered by a nurse. It must be personal care to the person of the decedent.

There is another circumstance to which the Court wishes to direct the attention of the parties. This will was written on the 29th day of January, 1953. The decedent died on the 10th day of October, 1953. If Mrs. Baer had rendered services to the decedent during all the time claimed by her, the decedent undoubtedly would have mentioned her in her will. She knew she was afflicted with heart trouble and, no doubt, felt that she might be disabled for some time when she would require personal care and attention and from which she would die.

It is the opinion of this Court that the last illness of the decedent began at 4:00 or 4:30 P. M. on October 9, 1953, and continued until her death, on October 10, 1953; that the claimant rendered no care to the decedent during her last illness as contemplated by the statute and that her claim is therefore disallowed.

An order may be drawn accordingly.