author: By MILLER, J.

text:
    BROWN, Plaintiff-Appellant, v. JENNINGS-LAWRENCE COMPANY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5781.
    Decided February 25, 1958.
    Lynch & Rosenberry, Charles M. Rosenberry, Jr., of Counsel, Columbus, for plaintiff-appellant.
    Vorys. Sater, Seymour & Pease, Russell P. Herrold, Jr., Richard G. Ison, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a personal injury case in which the “assured clear distance ahead” rule is involved. The record reveals that the plaintiff was operating his automobile on a two-lane country road in a westerly direction at a speed of approximately 45 miles per hour; that about 1000 feet ahead of him he saw the defendant’s truck parked in his lane of traffic headed in an easterly direction, one-half of which was on the improved portion of the road and the other half on the berm; that when he was 50 to 100 feet east of the truck, in order to miss the same he swerved his car to the left and proceeded at the same rate of speed; that when he was even with the front end of the truck he observed a surveyor’s transit and tripod standing in the middle of the road about even with the rear end of the truck. He was then unable to avoid hitting the same, the legs of which were three feet apart and upon which was mounted a transit, the total height of which was approximated four feet. The damages complained of resulted from the collision of the plaintiff’s car with the tripod and transit. The accident occurred at about 9:45 A. M. on a cloudy day with the sun occasionally appearing through the haze. Visibility was at least 1000 feet, for the plaintiff testified that he first saw the truck from this distance. His explanation for not seeing the tripod sooner was given on cross-examination. At page 172 of the record he testified as follows:

”Q. And you swerved out to the center of the road that was the first time you saw the transit?
“A. I didn’t see the transit until I was practically on it, because I was watching this car, I didn’t know what it was going to do, I thought may be it was going to pull- out in front of me.”

At page 179:

“Q. This transit as you tell us was about four and one-half feet off the ground, it was about eight or ten inches in diameter, the transit itself, you stated you didn’t see it until you were five or six feet away from it; I am asking you why is it you could see a post and a mail box on it at a distance of a thousand feet the other day, when you couldn’t see a transit four and one-half feet off the ground until you were five or six feet away from it in November, 1954.
“A. Well, November, 1954, I had my eye on this truck, I wasn’t looking for a transit setting in the road.
“Q. Do I understand your testimony then that this truck out on the road was obstructing your view of the transit?
“A. In a way it was detracting my vision.
“Q. You were driving down the road, as I understand your testimony, you saw this truck at a distance of about a thousand feet away from it, you continued on down the road, you noticed that this truck was stationary, it was parked, that half of it at least was on the pavement?
“A. That is true.”

At the conclusion of the plaintiff’s case counsel for the defendant moved for an instructed verdict for the reason that the plaintiff’s evidence when considered in its most favorable light disclosed a violation of the assured clear distance ahead statute. Sec. 4511.21 R. C. This motion was sustained, a verdict was returned, judgment entered and motion for a new trial was overruled. Counsel for the appellant argue that the court erred in sustaining the motion at the close of the plaintiff's case, for the reason that the answer, in addition to being a general denial, alleged contributory negligence on the part of the plaintiff, citing, McFadden v. Transportation Co., 156 Oh St 430. This case differs from the case at bar for the reason that in the cited case no negligence of the plaintiff appeared from the facts presented on behalf of the plaintiff. Under such circumstances the burden of proving contributory negligence rested upon the defendant. There was no burden upon the plaintiff of proving his freedom from contributory negligence and in that case the court properly stated that the burden of proving the same rested upon the defendant. But in our case the plaintiff’s own evidence raised a presumption of a violation of the “assured clear distance” statute. Such a violation constitutes negligence per se. Glasco v. Mendelman, 143 Oh St 649; Gumley v. Cowman, 120 Oh St 36; Skinner v. Pa. Rd. Co., 129 Oh St 69; Smiley v. Arrow Spring Bed Co., 138 Oh St 81; Winkler v. City of Columbus, 149 Oh St 39.

In the McFadden case, supra, the court stated that its prior decisions on the "assured clear distance ahead” rule established that the operator of a motor vehicle has violated the statute if, (1) the object with which his vehicle collided was located ahead of him in his lane of travel, and (2) that such object was reasonably discernible, and (3) that the object was (a) static or stationary, or * * •*. The plaintiff’s evidence definitely established that (1) the object with which he collided was in his lane of travel, and (2) that it was static or stationary. The only remaining question is whether or not the object with which the plaintiff collided was reasonably discernible, counsel for the plaintiff urging that it was not. Whether or not an object is discernible may be a factual question if it is properly raised by the evidence. In the McFadden case, at page 442, the court defined the term, to wit,

“The word ‘discernible’ ordinarily implies something more than ‘visible. ‘Visible’ means perceivable by the eye whereas ‘discernible’ means mentally perceptible or distinguishable, — capable of being ‘discerned’ by the understanding and not merely by the senses.”

From this definition we conclude that the tripod and transit was a discernible object, but whether or not it was discernible from that distance within which the plaintiff could bring his car to a stop depended upon the evidence. Upon this question there is nothing other than that the plaintiff failed to see the obstacle until he was within eight feet of it. The evidence discloses no intervening causes which might have prevented it from being discernible, hence it must be concluded that the object remained discernible. It was static, was. in the plaintiff’s lane of travel and was certainly visible to any one looking in its direction.

Failure to observe the “assured clear distance” statute may be excused and the legal imputation of negligence per se avoided by establishing that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible. Kormos v. Cleveland Retail Creditmen’s Co., 131 Oh St 471.

The only excuse offered by the plaintiff was that he was distracted, looking at the parked car and did not see the obstruction until he was within eight feet of the same. Such conduct is not excusable, as he was required to keep a lookout ahead, and the court did not err in instructing the jury to return a verdict in favor of the defendant.

We find no prejudicial error in the record and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    PAGE et, Plaintiff, v. BOUSE, Defendant. KNEEN MARSHALL COAL & SUPPLY CO. et, Defendants-Appellants, FIRST FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant-Appellee.
    Ohio Appeals, Seventh District, Lake County.
    No. 573.
    Decided June 7, 1957.
    McDonald, Hopkins, Hood & Hardy, Cleveland, Joseph P. Tulley, T. R. Zettlemeyer, Willoughby, for defendants-appellants.
    Wayne E. Davis, Willoughby, for defendant-appellee.
   OPINION

Per CURIAM.

Five defendants, mechanic lien holders, appeal on questions of law from a judgment of the Court of Common Pleas finding that a mortgage of defendant, First Federal Savings & Loan Association, had priority over all appellants’ liens on property of defendant Bouse.

The questions of fact in this case were tried by the court of common pleas, and from the evidence that court made nineteen findings of fact and four conclusions of law. Since no bill of exceptions is before this court disclosing the evidence upon which the trial court based its findings we are unable to say that its findings are erroneous.

Finding of fact number five reads as follows:—

“The said note and mortgages were given in order that a mortgage to the Cleveland Trust Company in the amount of $16,236.44 on one parcel could be paid off and for the purpose of having the remainder of the mortgage proceeds used to improve the other parcel of land by the erection of a dwelling house thereon.”

In the absence of a bill of exceptions we can not disturb this finding of fact, which finding is binding upon this reviewing court. See Ralston v. Administrator of Charles C. Kohl, 30 Oh St 92.

Requests for additional findings of fact and conclusions of law made after the original findings were made and before the same were journalized we assume were properly refused because in the absence of a bill of exceptions we must assume that the whole subject was covered in the original -findings.

Judgment affirmed.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.


author: By THE COURT:

text:
    SNYDER, Exr. et, Plaintiff-Appellant, v. BUTLER et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2315.
    Decided March 23, 1955.
    Richard E. Pryor, Dayton, for plaintiff-appellant.
    Shipman & Shipman, Troy, Coolidge, Becker, Wall & Wood, Dayton, for defendants-appellees.
   OPINION

By THE COURT:

Submitted on motion of defendants-appellees to dismiss for failure to file bill of exceptions, assignments of error or briefs within the time prescribed by law and rule of court.

This is an appeal on questions of law. The failure to file a bill of exceptions would not necessarily require a dismissal, as a claimed error may appear on the face of the pleadings, or may be exemplified by the transcript of the docket and journal entries which has been filed. However, the failure to file assignments of error or briefs within the time prescribed by Rule VII of this Court is sufficient cause for dismissal. The fifty-day period within which assignments of error and briefs may be filed has long since expired, and none being filed, the appeal is dismissed.

Motion sustained.

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


author: By PETREE, PJ.

text:
    GRANDLE, Plaintiff-Appellant, v. RHODES, Auditor, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5765.
    Decided April 22, 1958.
    John A. Lloyd, Jr., James G. Andrews, Jr., Cincinnati, for plaintiff-appellant.
    William Saxbe, Atty. Genl., Hugh A. Sherer, Chief Counsel, Columbus, for defendant-appellee.
   OPINION

By PETREE, PJ.

This cause originated in the Common Pleas Court of Franklin County, Ohio, as a taxpayer’s suit to prevent the expenditure of state highway funds for the purpose of making certain engineering surveys in connection with a proposed underground parking lot under the ten-acre site upon which the Ohio State Capitol is situated.'

The Common Pleas Court sustained a demurrer by the defendant, and the Second District Court of Appeals affirmed the trial court.

The case was admitted on motion to the Supreme Court of Ohio, which at first affirmed the Second District Court of Appeals but which, upon rehearing, reversed the Court of Appeals and the Common Pleas Court and ordered final judgment for the plaintiff in accordance with the prayer of the plaintiff’s petition. The entry in the Common Pleas Court of March 29, 1957, journalized the judgment fop the plaintiff and awarded him his costs,

It will be conceded from a reading of Judge Harter’s original decision, which was affirmed by the Second District Court of Appeals, that the matter before the court was a very close case, especially in view of the prior decisions of the Supreme Court in State v. Rhodes, 156 Oh St 81, and in State v. Defenbacher, 153 Oh St 268.

Thereafter, on April 6, 1957, plaintiff, by his counsel, filed an application for allowance of attorneys’ fees. In this application he recited his successful prosecution of the suit to prevent the expenditure of $84,500.00 and the hisiory, which has been heretofore set out in this opinion. It will be noted that the application was filed in the original action, which had terminated in favor of the plaintiff, wherein he had recovered his costs

The matter of the attorneys’ fees came before Judge Gessaman of the Common Pleas Court, and on June 25, 1957, Judge Gessaman filed his opinion in which he said:

“There is no question in this state but that in a suit successfully maintained to protect or preserve a fund, the court may, in the absence of an express' inhibition, allow fees to the attorney for the successful party, to be paid from the fund. 14 O. Jur. 2, 41, Sec. 47, Costs. For recent cases see State ex rel. Yontz v. West, 135 Oh St 589; Smith v. Kroeger, 138 Oh St 508.”

Thereafter in its opinion the court set forth its position, which was to the effect that in the case at bar, an express inhibition prevented the use of the funds in question for the payment of the attorneys’ fees even in a taxpayer’s suit to preserve those funds. With that conclusion we agree.

The proposed parking lot was provided for in §5538.01 et seq, R. C. We must bear in mind that the Supreme Court of Ohio has in this very case construed Article XII, Section 5a, Ohio Constitution, which limits the purposes for which the monies derived from fees, excises, or license taxes shall be expended. A careful reading of that constitutional provision brings us to the conclusion that the funds in question cannot be expended for attorneys’ fees even for the very commendable purpose of preserving that fund. Admittedly, it is little comfort to the attorneys to say to them, “You have done your work so well that no expenditure can be made from that fund even to pay you to help the people of Ohio to preserve it.”

From a careful reading of the briefs, as well as the opinion of Judge Gessaman, we conclude that there is no fund presently available from which the fees of the plaintiff’s attorneys can be paid. If it were in the power of the court to order the payment of reasonable attorneys’ fees, it would seem eminently right and proper to do so. Many a soldier goes forth to war with no assurance that his family will be protected by the government he is helping to protect and preserve. He does his duty in the faith that a grateful government will do what is right by those whom he may leave behind. Perhaps when this case is finally settled, plaintiff’s counsel may accept the offer of the trial court to fix a reasonable allowance for attorneys’ fees in this case, which could then be presented to the Sundry Claims Board or to the State Legislature as a fair figure upon which such a board might act without too much delay. Courts ordinarily do not like to put counsel in the position of having to appeal, with hat in hand, to the sound discretion of some board for the allowance of attorneys’ fees which they have justly earned. But the lav/ in this case seems to us definite — that there are no funds available out of which a proper order for payment can now be paid.

The single assignment of error is as follows:

The court erred in denying appellant’s application for an allowance of counsel fees.

We have carefully considered this assignment of error, including the reasoning set forth under Sections “A” and “B” in the brief, and we conclude that the assignment of error is not well taken for the reasons above set forth and those stated in the trial court’s opinion. The judgment of the trial court in denying the allowance of attorneys’ fees in this case will be affirmed.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


author: Per CURIAM:

text:
    SUMMERGRADE, Relator, v. Rees, Clerk et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23819.
    Decided March 14, 1956.
    Walter & Haverfield, for relator.
    George E. Feder, Law Director, for respondents.
    (DOYLE, J, of the Ninth District, sitting by designation in the Eighth District for HURD, J.)
   OPINION

Per CURIAM:

In'consideration of the issues joined in this action seeking a writ of mandamus to require the respondent, Clerk of the Council of the City of Lakewod, to certify that Ordinance No. 9-56 was properly passed on March 5, 1956-, and to deliver forthwith a copy thereof to the Board of Elections of Cuyahoga County, this Court concludes from the stipulations of fact, exhibits, and admissions in the pleadings that all necessary steps required by law were taken by the City Council for such submission to the electors of an amendment to the City Charter of Lakewood in accordance with a legally sufficient initiative petition.

We specifically find, in answer to the claim of the respondent that Ordinance No. 9-56 was not legally passed for the reason that it was not passed “by a vote of the majority of all members elected,” that this voting requirement applies under the rules of Council to an amendment or alteration of the said rules of Council and that a majority vote of the council members present at the meeting in question was sufficient for the passage of Ordinance No. 9-56.

It is our conclusion that there is shown a clear duty on the part of the Clerk of Council to certify the fact that Ordinance No. 9-56 was legally passed on March 5, 1956, and further that it is his clear duty to deliver forthwith a copy thereof to the Board of Elections of Cuyahoga County, to the end that the electors may be afforded the opportunity of voting on the proposed charter amendment at the election to be held May 8, 1956.

The relator. has shown a clear right to the. issuance of the writ prayed for and it will be so ordered.

Writ allowed. Exceptions. Order see journal.

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


author: By HARTER, J.

text:
    GRANDVIEW HEIGHTS (City), Plaintiff, v. REDICK, Director of Public Service et, Defendants.
    Common Pleas Court, Franklin County.
    No. 191,423.
    Decided August 26, 1955.
   OPINION

By HARTER, J.

Since 1911, the City of Columbus, Ohio, has been supplying water to the inhabitants of the City of Grandview Heights, Ohio, through a series of agreements. By the agreement, dated August 1, 1934, covering this supplying of water, the charge for such water was set at a rate of 10% above the schedule of rates for consumers within the City of Columbus. The consumers in the City of Grandview Heights were required by that agreement, and did, sign standard consumers’ contracts issued by the City of Columbus, and the same rules and regulations and service, afforded by the City of Columbus to its own residents, were afforded to the City of Grandview Heights consumers.

That method of operation, although purporting to be for a ten year term, in fact prevailed for twenty years. As of September 1, 1954, the City of Columbus undertook, by duly enacted Ordinance, to begin charging consumers of water within the City of Grandview Heights on a schedule of rates more than 10% above the schedule applied to City of Columbus consumers.

This action by the City of Columbus is here challenged as to its legality and the City of 'Grandview Heights is here seeking injunctive relief to prohibit the defendants “from charging or collecting any rate for water to the consumer inhabitants of the City of Grandview Heights in excess of 10% of the charge or rate made against the consumers within the, municipal corporation of the City of Columbus * *

The Amended Petition alleges facts which tend to bring the problem within the provisions of §743.13 R. C. This Court will not attempt to recite those facts here: rather we will quote the statute:

When any person at his own expense has laid down and extended mains and water pipes or electric light and power lines beyond the limits of a municipal corporation, and the legislative authority thereof, by resolution, has authorized ‘the proper officer of the water works to superintend or supervise such laying and extension, the municipal corporation shall furnish water or electricity to the residents and property holders on the line of such facilities. The same rules and regulations which govern the furnishings of water or electricity to its own citizens shall apply in such cases, except that the rates charged therefor shall not exceed those within the municipal corporation by more than one tenth.

In the opinion of this court, this statute (§743.13 R. C.) should be read in connection with §§743.12, 743.14. 743.15, 743.16 and 743.17 R C. It then becomes readily apparent that all six of the statutes, in series, deal with the rights and obligations of private persons (as contrasted with municipal corporations) and that an entirely separate group of succeeding statutes (i. e. §§743.17 to 743.21, inclusive, R. C.) cover the rights and obligations of Municipal Corporations where water is being supplied. i ,...... , fe.i Sill

It is most significant that in the latter sections of the Revised Code of Ohio, there is no 10% limitation upon the amount which a supplying municipality may charge for water. We quote the applicable statute §743.18 R. C.:

A municipal corporation which has water works or electric works may contract with any other municipal corporation to supply it or its inhabitants with water or electricity upon such terms as are agreed upon by their respective legislative authorities. A municipal corporation which has a water works may dispose of surplus water, for manufacturing or other purposes, by lease or otherwise, upon such terms as are agreed upon by the director of public service of a city or the board of trustees of public affairs of a village and approved by the legislative authority thereof. Moneys received for such surplus water in either case shall be applied to the payment of the principal and interest of the bonds issued for the construction of such water works, or for other expenses incident to the maintenance thereof, but no lease shall be made for a longer term than twenty years.

The amount to be paid for such water supply shall be raised by the municipal corporation purchasing it, in the manner provided for the payment of the expense of conducting and managing water works constructed wholly by a municipal corporation. The amount so received by the municipal corporation furnishing such supply shall be applied to the payment of the interest on the sum borrowed for the construction of such water works, or to defray the expense of its management, as the director of public service or board of trustees directs.

In our opinion, the facts alleged in plaintiffs’ amended petition (confessed, as they are, by defendants’ general demurrer) conclusively exclude the application of the 10% limitation provided for in §743.13 R. C. (upon which plaintiffs rely) and conclusively bring this fact pattern within the provisions of §§743.17 to 743.21, inclusive, R. C., where no limitation, of 10% or otherwise, is specified. This means, in effect, that we adopt the defendants’ theory and reject the plaintiff’s contention.

This holding disposes of this entire controversy and we could end this opinion at this point. However, such a holding might not finally terminate this controversy. Further amendments of the plaintiffs’ pleadings might be attempted and the litigation prolonged in this court. In the hope that we may avoid such protracted litigation in this court, and in the further hope that we can by our present action adequately lay the ground work for appellate proceedings, in this case, we wiil comment upon the same question of constitutional law which received attention from Judge Rogert E. Leach of this court, in a decision he rendered under date of March 11, 1955, in sustaining a demurrer to plaintiff’s original petition.

Judge Leach in that decision, expressed doubt that the Ohio General Assembly had the power (under the Amendments to the Ohio Constitution. adopted in 1912, in culmination of the “Home Rule” movement) to limit the price which a city might charge for selling its water to persons beyond the limits of the municipal corporation. That problem was not directly raised at the time Judge Leach considered this case but it has now been directly raised and has been fully briefed by the attorneys for both sides in this litigation on the demurrer now before this court.

Since this question is directly raised now, we hold that the facts alleged m plaintiff’s amended petition bring this case squarely within Article XVIII, Section (4), Ohio Constitution, which provide,

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the products or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise and a municipality may acquire, thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility (adopted September 3, 1912).”

Section 6, Article XVIII, Ohio Constitution, is not here directly applicable as we see the situation in that no question as to the amount or percentage of surplus water supplied to the inhabitants of the City of Grandview Heights is raised here.

By way of historical background, it should be observed that the power of a municipality in Ohio to construct, acquire or contract with a public utility was limited to that power which was expressly granted by the General Assembly, prior to the adoption of the Home Rule Amendment in 1912.

Since the adoption of the Home Rule Amendments to the Constitution in 1912, the municipality’s power regarding public utilities is no longer derived from nor has it been subject to substantial limitation by the legislature. See Link v. Public Utilities Commission of Ohio (1921), 102 Oh St 336; State, ex rel. City of Toledo v. Weiler (1920), 101 Oh St 123; City of Cleveland v. Village of Cuyahoga Heights (1947), 81 Oh Ap 191; Ricketts v. City of Mansfield (1932), 43 Oh Ap 316; and Alcorn v. The Cincinnati Traction Company (1925), 25 Ohio Nisi Prius (New Series) 523.

It.is the settled law of the state, since 1912, that the power granted to a municipality by Section 4, Article XVIII, Ohio Constitution, stems from the people of Ohio. See Village of Perrysburg v. Ridgeway (1923), 108 Oh St 245. This Section 4, Article XVIII, Ohio Constitution, confers complete power upon municipalities to own and operate public utilities and to contract with such utilities for products and service and to fix the rate therefor. All legislative enactments restricting, limiting, or conflicting with this power are invalid. See Rickets v. City of Mansfield (1932), 43 Oh Ap 316 at 327. The section of the constitution is self-executing, requiring no implementation by the legislature. See State, ex rel, Doerfler v. Otis (1918), 98 Oh St 83; Pfau v. Cincinnati (1943), 142 Oh St 101.

Under the compulsion of these authorities, we hold that, insofar as the provisions of §743.13 R. C., purport to limit the amount which a municipality (the City of Columbus) may charge for water furnished the inhabitants of an adjoining municipality (the City of Grandview Heights) to rates which shall not exceed the rates to those within the municipal corporation (Columbus), by more than one tenth is unconstitutional and unenforceable even though that statute, or its predecessors, has been in existence as statutory law in Ohio for some 62 years.-

We recognize that counsel for the plaintiff most strenuously objects to this theory; he has fully set forth his theories to the contrary in his brief in opposition to the demurrer now being considered. We will not attempt a detailed consideration of his arguments; rather, we say that his arguments are ones which should be directed toward an.amendment of the Ohio constitution; they do not, in our opinion, apply to the problem with which this-court is now confronted — i. e. a problem of applying the Home Rule provisions of the Ohio Constitution in the light of the construction which has been placed upon those Home Rule Amendments by the reviewing courts of this state.


author: By MILLER, PJ.

text:
    GRANDVIEW HEIGHTS (City), Plaintiff-Appellant, v. REDICK, Director of Public Service et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5374.
    Decided February 16, 1956.
    Thomas W. Maxson, Solicitor, Columbus, for plaintiff-appellant.
    Chalmers P. Wylie, City Atty., Russell Leach, Senior Asst. City Atty., John W. E. Bowen, Asst. City Atty., Columbus, for defendants-appellees.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court sustaining a demurrer to the petition for the reason that the same does not constitute a cause of action, and since plaintiff desired not to plead further a final judgment was entered.

The record reveals that the action was instituted by the City of Grandview Heights, a municipal corporation, against the City of Columbus see King an injunction restraining said City from fixing a water rate for the residents of the City of Grandview in excess of ten per cent of the rate charged the consumers in the City of Columbus. It is alleged that such an excess rate has been fixed and that the same is in violation of the provisions of §743.13 R. C. The following errors have been assigned:

(1) The Court of Common Pleas, Franklin County erred in sustaining the demurrer as filed by the defendants against the plaintiff’s petition.

(2) The Court of Common Pleas erred in declaring §743.13 R. C. unconstitutional and unenforceable as being in contravention with Section 4, Article XVIII, Ohio Constitution.

A consideration of the first assignment requires an examination of §743.13 R C., for a determination of whether or not its provisions are applicable to a municipal corporation. Counsel for the plaintiff-appellant have filed a lengthy brief in which only the constitutionality of the cited section is discussed. However, this question does not arise, until there is a determination as to the applicability of the section to a municipal corporation. Judge Iiarter in a well-considered opinion held that a municipal corporation is not a “person” under the provisions of the Act, and therefore could not be subject to the limitations contained therein. It will be noted that the section begins wih the words “When any person,” etc. * * *. The word “person” is defined in §1.02 R. C., in the following manner:

“As used in the Revised Code, unless the context otherwise requires:
(B) “ ‘Person’ includes a private corporation; and, when used to designate the owner of property which is the subject of an offense, includes not only natural persons but also every other owner of property.”

According to this definition the term includes a private corporation and since it makes no mention of a municipal corporation it must be concluded that it was the intention of the Legislature not to include the same. The maxim “Expressio unius est exclusio alterius” seems particularly applicable here. And also we find nothing in the context of §743.13 R. C., which requires a definition different from that defined supra. See City of Lackland v. Shaver, 98 N. E. (2d) 643, 44 O. O. 189, which is in accord with our views.

Counsel for the appellant urges that since the demurrer does not specify the grounds for the same, that it shall be regarded as objecting only to the extent that the Court does not have jurisdiction of the subject of the action or that the petition does not state facts which show a cause of action. Citing, §2399.09 R. C.; State, ex rel. Spiker v. Industrial Commission, 141 Oh St 174. We do not think the demurrer challenges the plaintiff’s legal capacity to bring the action, but rather that the plaintiff is not entitled to the benefits enumerated under §743.13 R. C.; hence, no cause of action is stated. Under our interpretation of the statute, its constitutionality becomes only an academic question which this Court is not required to pass upon.

The first assignment of error is not well taken, and we express no opinion on the second. The judgment is affirmed.

HORNBECK and CONN, JJ, concur.


author: By McBRIDE, J.:

text:
    KEEN et, Appellees, v. GENERAL MOTORS CORPORATION, Frigidaire Division, Appellant.
    Common Pleas Court, Montgomery County.
    No. 112768.
    Decided August 19, 1958.
    Cowden, Pfarrer, Crew & Becker, Dayton, for appellant.
    L. R. Cousineau, Dayton, William Saxbe, Atty. Genl., John R. Barrett, Asst. Atty. Genl., Columbus, for appellee.
   OPINION

By McBRIDE, J.:

This case was instituted by the General Motors Corporation as an appeal on a workman’s compensation matter from a decision of the Industrial Commission of Ohio in favor of an employee, Raymond Keen. The petition alleges the capacity of the parties and recites in great detail the evidence of the history of the case. The conflicting orders of the Administrator, of the Dayton Regional Board of Review, and of the Industrial Commission of Ohio are embodied in haec verba in the petition. The appellant concludes its petition with certain jurisdictional factors and states that “having set forth the basis of the jurisdiction of this- Court over the action, Appellant prays that further proceedings be had in accordance with the code of civil practice.”

To this petition the appellee, Raymond Keen, filed a motion asking the court to strike seven items as argumentative, immaterial, and as evidence. In branch two of his motion the appellee asks that the petition be made definite and certain by stating the ground or grounds upon which their appeal is based. The Industrial Commission of Ohio joins in branch two of this motion.

The memorandum on behalf of the Commission states that the common pleas courts have consistently ruled in interpreting

“what the contents of the petition should be under §4123.51.9 R. C.: that the appellant must state a cause of action, the jurisdiction over the parties, and the jurisdiction over the subject matter.' When a claimant-appellant files a petition this is always true and should be equally true when an employer-appellant files a petition. As the petition of the employer-appellant now exists, there is nothing that can be denied and no issue can be made if an answer is filed.”

Sec. 4123.51.9 R. C., effective September 7th, 1957 provides the administrative steps, notice and service which must be completed before an appeal may be filed with the common pleas court; The first paragraph also says:

“Such filing shall be the only act required to perfect the appeal and vest jurisdiction in the court.”

Subsequently the same section further requires a so-called petition on the appeal, spells out the nature of the further proceedings after this instrument, designated a petition, has been filed, and expressly determines the issues, as follows:

“The appellant shall file a petition setting forth the basis for jurisdiction of the court over the action, and further proceedings shall be had in accordance with the rules of civil procedure, provided, however, that service of summons *»*.***. The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of such action.” (Emphasis added.)

Prior to 1955, §4123.51 R. C., provided in part that on an appeal from a decision of the Commission the claimant

“may file a petition in the court of common pleas of the county wherein the injury was inflicted * * . * * *. Further pleadings shall be had in accordance with the rules of civil procedure.” (Emphasis added.)

Effective October 5, 1955, §4123.51.9 R. C., simply provided that upon filing of the notices for appeal:

“Further proceedings shall be had in accordance with the rules of civil procedure. * * *” 126 Ohio Laws 1026.

The deletion of the requirement for pleadings in the 1955 amendments was still the subject of debate when §4123.51.9 R. C., was adopted on September 7th, 1957.

The rules for pleading in civil cases in the common pleas court apply to original actions. These rules require allegations of the facts constituting the original cause of action. There are no rules that require tne facts constituting the cause of action to be alleged in any case on appeal. The requirements for appeal to the court of common pleas from administrative decisions must be found exclusively in the special statutes which create the right of appeal.

In cases under the new procedure it has been held that there must be a complete set of pleadings as required for original actions and that the facts constituting the issues and the defenses must be set forth. Tnis conclusion is conceived in and relies upon the impression that pleadings in the traditional form are indispensable for the presentation of justiciable issues. This is a fallacy. And it is an unnecessary waste in any appellate situation where the issues have been previously stated, tried and decided three times in the administrative machinery, which is a prerequisite to the initiation of judicial steps in which three additional hearings are possible.

Sec. 4123.51.9 R. C., does not require allegations relating to the cause of action or the merits of the appeal. It expressly requires allegations “setting forth the basis for jurisdiction of the court over the action.” The word action may be construed to include both jurisdiction of the subject matter and jurisdiction of the person, but the use of the word jurisdiction prohibits any construction which imposes additional allegations in the petition on appeal. The statute does not require an answer or a reply although the court would entertain any pleading that raises a question under the jurisdictional allegations. The inclusion of this single requirement for the contents of the petition on appeal and the special, exclusive nature of this chapter and section eliminates all other elements from such petition however customary other facts or other pleadings are in original actions.

Sec. 4123.51.9 R. C., then provides that “further proceedings shall be had in accordance with the rules of civil procedure.” This reference to further proceedings avoids the general rules of pleading, just as it adopts the general rules relating to trial procedure. This is apparent from a comparison of the existing statute with the repealed provision. The former statute required that “further pleadings shall be had in accordance with the rules of civil procedure.” The deletion of the word pleadings in favor of proceedings cannot be ignored because in conjunction with the word further the word proceeding can only mean those steps after the petition has been filed as previously set forth. Consequently, as to the petition, §4123.51.9 R. C., supercedes the general rules of pleading and requires only that the basis for the jurisdiction of the court be set forth in the so-called petition. The only resemblance between the statutory petition on appeal required by §4123.51.9 R. C., and a petition in an original action is in the similarity of the name chosen by the legislature: they do not serve the same purpose and they do not contain the same allegations. The petition ■ on appeal is a technical instrument designed merely to establish jurisdiction of the court over the action.

And — as if anticipating some complaint as to form — §4123.51.9 R. C.. proceeds to spell out the issue, incorporating in the statute itself, the purpose served by pleadings. Under the statute the court is required to decide or submit to the jury, in event a jury is demanded, the issue as to whether or not the claimant shall participate or continue to participate in the fund upon the evidence adduced. The submission of the issue upon the evidence rather than the pleadings confirms a legislative design to establish a simple technical step to complete the appeal and to enable the court to resolve jurisdictional questions before hearing or submitting the statutory issue of participation in the fund. The creation of issues by statute, obviating the necessity for allegations of specific facts, is not unknown in this State. Familiar examples appear in will contest and appropriation cases. The legislature clearly states that a petition which sets forth the jurisdictional facts is sufficient to entitle the appellant to a review of the decision by the common pleas court under the further proceedings provided for in this section. The necessity for a jury demand is another technical difference in compensation cases.

The court finds that the provisions of §4123.51.9 R. C., are exclusive. They provide for the contents of a petition on appeal and the nature of the further proceedings after the filing of such a petition. The general rules of pleading have no application except possibly as a discretionary guide with respect to how the jurisdictional facts and the prayer may be set forth in the petition for appeal. Any other construction which writes in additional requirements is a usurpation of the function of the legislature to determine the requirements for perfecting an appeal from a legislative agency.

Both branches of the motion are overruled. The petition on appeal sets forth the basis for the jurisdiction of the court over the action as required by §4123.51.9 R. C. Further allegations would constitute surplusage. Branch one of the motion is grounded on the wise general rule that facts and not evidence or argument should be pleaded; however the court finds it unnecessary and improper to enforce general rules of pleadings which do not apply to this appellate situation. The allegations objected to cannot help or prejudice any party. On the merits of the appeal the evidence adduced at the trial may be considered by the court or the jury. The so-called petition does not contain and is not required to contain allegations relating to the statutory issue. The purpose of such a limited petition is accomplished when it establishes the jurisdiction of the court. Under the section considered it serves no other purpose and should not be submitted to the jury for any purpose.

Memoranda of counsel for the three interested parties fail to furnish other decisions or arguments on the question. In event a written memorandum is filed with the court within fifteen days by any party the court will reconsider this decision.


text:
    KEEN et, Appellees, v. GENERAL MOTORS CORPORATION, Frigidaire Division, Appellant.
    Common Pleas Court, Montgomery County.
    No. 112768.
    Decided October 3, 1958.
    Cowden, Pfarrer, Crew & Becker, Dayton, for appellant.
    L. R. Cousineau, Dayton, William Saxbe, Atty. Genl., John R. Barrett, Asst. Atty. Genl., Columbus, for appellees.
   OPINION

By McBRIDE, J.:

At the request of the attorney general for reconsideration written and oral arguments were received by the court. The attorney general urged that the use of the expression “further proceedings” in §4123.51.9 R. C., should be construed to increase the requirements for the petition to include matter not expressed in the statute in the preceding part of the same sentence which provides that the petition shall

“set forth the basis for jurisdiction of the court over the action * * *” and nothing more. Expressio unius est exclusio alterius. This specific requirement cannot be altered by the provision for subsequent or further proceedings.

It was argued that a “workable solution” has been found under the amendment. This argument is based on some feeling or convenience that, irrespective of the statute, “accepted practices” should be approved. The court has no discretionary authority under this special statute. “Workable solutions” and their cousins, “accepted practices,” destroy uniformity and cannot survive in the absence of discretionary authority.

This court has no inherent jurisdiction and no inherent discretion in perfecting an appeal in Workmen’s Compensation cases. Industrial Comm. v. Ramsey, 119 Oh St 497; Purtee v. GMC (App 2d Dist.) 151 N. E. 2d 747. The court may not resort to the general rules of civil practice where there is an express provision in the compensation statutes. In this instance the statute states that the petition shall allege the basis for the jurisdiction of the court over the action. Writing in further requirements constitutes judicial legislation.

The court does not share the attorney general’s concern over the absence of a requirement for allegations of fact constituting a cause of action. The issues are made up by the special appellate statute and cannot be changed by pleadings or by rearrangement of parties on appeal. On an employer’s appeal it is impractical to plead a cause of action within the civil rules on pleadings when the employer does not have a cause of action but rather a right of appeal from an adverse decision of an administrative agency. In perfecting this appeal an employer or a claimant need only comply with the general requirements and file a “petition” setting forth the basis for the jurisdiction of the common pleas court.

The fear was expressed that an appellant, if a claimant, might produce evidence of a different accidental injury, against which the appellee would be powerless to prepare a defense. This is unfounded. If attempted, the appellee could introduce evidence of the application and pertinent parts of the original proceedings to controvert such second claim and to attack the appellant’s credibility. If the evidence shows a different accidental injury this is ground for dismissal as a matter of law because proof of a second additional injury fails to support the first on which the appeal was taken. The records in the original administrative steps provide greater safeguards against a substantial departure than any pleading the court has ever read.

This conclusion is a reversal of earlier rulings of this court. Under the confusion incident to biennial amendments it was easy to assume that since a jury trial was provided on other than the record of the first hearing that pleadings were necessary. Upon further reflection it is observed that the nature of the proceedings have not been changed. This is a statutory appeal from a final decision and is in no sense an original action. Pleadings are not only not essential but they may be required only to the extent expressly set forth in the statute. Grafting a duplication of an original procedure upon an appellate practice is a novel and a delicate operation requiring careful and complete draftsmanship.

The arguments and problems presented at the rehearing have further strengthened the opinion of the court that the decision on the instant motions is correct.


author: By PHILLIPS, J. By NICHOLS, PJ.

text:
    ROWSER, Plaintiff-Appellant, v. BRUELL, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3914.
    Decided March 28, 1957.
    Leo Waldman, Youngstown, for plaintiff-appellant.
    A. L. Burgstaller, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

The trial judge sustained defendant’s demurrer to plaintiff’s eighteen interrogatories attached to her petition filed in the court of common pleas in her action against defendant to recover damages for personal injuries.

Plaintiff appealed on questions of law and contends that the trial judge abused his discretion and committed error prejudicial to him.

In a per curiam opinion written in the case of Gregory Van Cobb, a minor by and through his mother and next friend, Maretta Van Cobb, Plaintiff-Appellant, v. Margaret Sudzina, Defendant-Appellee, Mahoning Appeal number 3823, decided March 15, 1956 (78 Abs 33), in which plaintiff’s counsel in the case we review was of counsel, this court said:—

“If the court incorrectly, stated the reasons for sustaining the demurrer to the interrogatories the reasons themselves are not grounds for reversal.
“If the judgment on the sustaining of the demurrer was lawful the matters embraced in the court’s opinion are of entire indifference to this reviewing court and constitute no ground of error. It is the decision of the court pronounced and not the reasons that is all important.
“In the absence of an abuse of discretion the sustaining of such demurrer is not a final appealable order. See Collins v. Cab Co., 157 Oh St 311.
“There is nothing before us to indicate that the trial judge was motivated by any unreasonable, improper or arbitrary consideration. Our conclusion is that there was no final order by the court of common pleas properly reviewable by this court, and for that reason the appeal is dismissed.”

No final appealable order having been entered in the case under consideration the appeal is dismissed.

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

CONCURRING OPINION

By NICHOLS, PJ.

There is no final appealable order in this matter. The case is still pending and may go to trial upon the pleadings and evidence, in which event the plaintiff may or may not be prejudiced by the action of the trial court in sustaining the demurrer to the interrogatories.

Upon trial the plaintiff may recover a verdict satisfactory to her, and if the verdict is for the defendant or otherwise unsatisfactory to her the matter of error of the trial court in sustaining the demurrer to the interrogatories may then be presented to the court of appeals on appeal.

Appeal dismissed because there is no final appealable order at this time.

PHILLIPS and GRIFFITH, JJ, concur in judgment.


author: By BRYANT, J.

text:
    DAWSON et, Plaintiffs-Appellants, v. PAULINE HOMES, INC., and LAWYERS TITLE INSURANCE CORP., Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5862.
    Decided June 10, 1958.
    Harry A. Dawson, Ruby L. Dawson, Columbus, on behalf of themselves.
    Stanton G. Darling, Columbus, for Pauline Plomes, Inc., defendantappellee.
    Wright, Harlor, Purpus, Morris & Arnold, Columbus, for Lawyers Title Insurance Corp., defendant-appellee.
   OPINION

By BRYANT, J.

This action was begun in the Municipal Court of Columbus. It arose with the purchase of a house and lot by Harry A. and Ruby L. Dawson, plaintiffs-appellants herein, from the Pauline Homes, Inc., one of two defendants-appéllees.

The petition alleged certain warranties and representations as to full compliance with regulations of the Federal Housing Administration and the breach thereof. It also alleged certain other claimed wrongful acts and concluded with a prayer for Two Thousand Dollars’ damages.

It appears that the Dawsons were represented by an attorney-at-law who prepared the petition and conducted the trial on their behalf. At the conclusion of plaintiffs’ evidence the trial court, on motion of defendants, gave judgment in favor of the defendants at the costs of the plaintiffs

It appears that the Dawsons became dissatisfied with the services rendered by this and another attorney employed by them and that there was a termination of their employment. The Dawsons then undertook carrying on the litigation, acting as their own attorneys. This they have the unquestioned right to do.

As before stated, the judgment' of the trial court was against the Dawsons It is quite clear that the Dawsons wished this court to review and reverse the judgment of the court below. It is also clear that they have failed to take steps which will permit this court to review that judgment. The so-called notice of appeal filed November 19, 1957 contains no statement whatever as to what judgment or final order of the court below is the subject of the appeal nor is there any reference to any date of which such judgment or final order was entered. On the contrary, the Dawsons flatly stated in said document:

“Plaintiffs find no court error in the proceedings of the trial of said case * *

This is followed by a statement that the attorney they employed “presented said case erroneously” and that “extenuating circumstances have obstructed justice.” There is no amplification as to what' the extenuating circumstances were.

The immediate question pending before this court arises under a motion filed by Lawyers Title Insurance Corp. to dismiss the appeal upon the following two grounds: (1) that the Dawsons failed to file a bill of exceptions or assign errors apparent on the record and (2) that the Dawsons have failed to file their assignment of errors and briefs within the time provided by law. The Dawsons relate the difficulties they have had with counsel they have employed, which is to be regretted.

Unfortunately for them this does not lessen their obligation to file a bill of exceptions where questions are sought to be raised with respect to the evidence. Nor does it lessen their obligation to file an adequate notice of appeal setting forth the judgment or final order appealed from. This was not done by the Dawsons.

Thej were also under a duty to file an assignment of errors and supporting brief containing the arguments in support of their claims and any authorities they might have.

Under this court’s former Rule VII A (1) — effective until January 1, 1958 — the said bill of exceptions was required to be filed in the trial court noi later than forty days after the perfecting of the appeal by the filing of a notice of appeal, etc. This rule also sets forth the steps which follow including the filing of said bill of exceptions with the clerk of this court.

Later provisions in the same rule require the filing of an assignment of errors and briefs at the same time the bill of exceptions is filed with the clerk of this court. The fact is that as this opinion is being-written approximately one hundred ninety days have elapsed since the filing of the notice of appeal,

For the reasons above set forth the motion to dismiss is well taken as to both of the grounds therein set forth. Said motion will, therefore, be sustained and the appeal will be dismissed at the costs of the plaintiffs-appellants.

PETREE, PJ, MILLER, J, concur.


author: By SKEEL, PJ.

text:
    TROHA, Plaintiff-Appellee, v. SNELLER, Admrx., etc., Defendant-Appellant. TROHA, Deceased, Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 24556, 24557.
    Decided July 10, 1958.

      Beach & Warner, for appellee.
    Ellis V. Rippner, for appellant.
   OPINION

By SKEEL, PJ.

These appeals and appellee’s cross appeal come to this court from judgments entered in two separate actions tried at the same time. The first to be considered deals with the appellee’s motion seeking to remove Angela Sneller as administratrix of the Estate of Philip Troha, deceased. The second action, filed by the appellee, as the surviving spouse of Philip Troha, seeks a declaratory judgment as to her right to share in the estate of her deceased husband under the terms of a “prenuptial agreement” entered into between the appellee and her husband before their marriage. The court granted appellee’s motion removing Angela Sneller as administratrix and by separate decree, interpreted the “prenuptial agreement” to be valid but found that its terms did not exclude the surviving spouse from the right to the statutory exemption of assets not subject to administration as fixed by the appraisers and to a year’s allowance, as defined by statute, and as returned by the appraisers, and the right, as provided by statute, to occupy the mansion house for a period of one year or its equivalent in money.

From the foregoing judgments, the appellant claims the following errors:

“1. The Probate Court erred as a matter of law in removing Angela Sneller as Administratrix of the Estate of Philip Troha.
“2. The Probate Court erred as a matter of law in setting off to Pauline Yerkic Troha, twenty per cent (20%), or the statutory exemption from the Estate of Philip Troha.
“3. The Probate Court erred as a matter of law in setting off to Pauline Yerkic Troha from the Estate of Philip Troha, a year’s allowance.
“4. The Probate Court erred as a matter of law in giving Pauline Yerkic Troha, from the Estate of Philip Troha, the right of occupancy of the mansion house for one year, or the money equivalent thereof.
“5. Por reason of other errors apparent on the face of the record.”

Philip Troha and Pauline Yerkic (now Pauline Troha), just prior to their marriage on August 3, 1946, to wit, as of July 29, 1946, and in contemplation of marriage, entered into a “prenuptial agreement.” It is therein declared that each of the parties, having been previously married, and each having children by such prior marriages, and each then being possessed and seized of property, real and personal, “agree as to their property, as follows:”

The agreement then, in part, provides:

“Now, therefore, in consideration of said marriage and of the covenants of the said First Party and Second Party hereinafter contained, the said First Party hereby covenants and agrees to relinquish all right, title, interest, or claims of dower, in and to the real property of said Second Party now owned or hereafter acquired and in lieu of any and all rights ox claims to a distributive share of said Second Party now owned or hereafter acquired, and in lieu of any and all rights or claims in or to the estate of the said Second Party which may arise by virtue of said marriage.
“And the said Second Party, in consideration of said marriage and of the covenants of said First Party hereinafter contained, covenants and agrees to relinquish all rights or claims of dower in and to the real property of said First Party now owned or hereafter acquired, and in lieu of any and all right, title, interest, or claims to a distributive share of Frist Party’s personal property now owned or hereafter acquired, and in lieu of any and all rights or claims in or to the estate of the said First Party which may arise or accrue by virtue of said marriage, and both parties mutually agree that at no time will they claim any right, title or interest in the real or personal property now owned by them previous to their marriage, and in the event either party to this agreement should sell any of their real property and acquire other real property, each party to this agreement waives all their right, title and interest in and to the same, and that at the death of either party to this agreement said real property shall go to the children of the respective parties to this agreement.
“It is further agreed that each party to this agreement shall pay their own taxes, insurance and upkeep of their own premises.
“It is further agreed by and between the parties to this agreement that in the event either one of the parties desires to sell their property that the other party will join in a Warranty Deed or such other instrument of conveyance as may be necessary to release all the right, title and interests that he,or she may have in the property of the person selling the same.
“It is further agreed by and between the parties that each party shall collect their own rentals to their respective properties.
“It is further agreed by and between the parties to this agreement that in the event there should be a dissolution of this marriage, either by law or by death, that then the respective parties to this agreement agree to give instruments of conveyance releasing any and all of their right, title and interest in each other’s property.
“This agreement is made for the benefit of the heirs, executors, administrators and assigns of the parties to this agreement and shall be binding upon them.”

Eacn of the parties had four children by his previous marriage. In 1953, Pauline Troha sold her single family house for ten thousand dollars. She gave' two thousand dollars out of the proceeds of the sale to each of her four children. In disposing of the property, Philip Troha released dower as required by the “prenuptial agreement.”

Philip and Pauline Troha planned a European trip to begin July 1, 1957. On June 21, 1957, Philip Troha withdrew $2058.78 from his savings account in The National City Bank of Cleveland to be used in part to defray the expenses of the trip. The account was held in the names of Philip Troha, Sr., and Philip Troha, Jr., with an agreement with the Eank that either could draw, with balance payable to the survivor.

Mr. and Mrs. Troha started for Paris on July 1, 1957 by air. Philip Troha died in flight before reaching the continent. In Paris arrangements were made to return his body to Cleveland. His children were notified of his death by cablegram on July 2, 1957. It is not clear from the record as to who made the arrangements for the return of the body to Cleveland. The expenses, however, appear to have been paid by the Cleveland undertaker who also conducted the funeral. The total bill for the undertaker’s services, as shown by the probate records, was $2169.98 from which fact it could be reasonably deduced that the children of the decedent made the necessary arrangements for the return of their father’s body to Cleveland for burial.

In all events, Pauline Troha, without further interruption, continued on her European tour, undoubtedly, in part financed by the money in possession of her husband at the time of his death. She did not return to the United States until October 12, 1957. What occurred in Paris, including the disposition of the personal effects of the deceased, is not shown by the record. These matters could have been fully explained by the widow but she did not testify in either of the two cases. There is likewise no evidence that she disclosed her whereabouts to the children after leaving Paris nor tell them when she expected to return. It was also perfectly evident by her conduct that she did not intend to return to Cleveland with the body of her deceased husband or participate in the funeral services. The body was returned to Cleveland on July 18, 1957 and the burial took place on July 20, twenty days after the date of his death.

On July 17, 1957, Angela Sneller, a daughter of the deceased by his first marriage, made application for letters of administration of her father’s estate. The application was made out in the clerk’s office of the Probate Court and verified by a deputy clerk. The record shows that Angela Sneller was guided through the procedural steps of these proceedings by the help of the personnel of the clerk’s office of the Probate Court. The application clearly sets out that the surviving spouse was a resident of Cuyahoga County. Residence service was had upon her by the sheriff. This fact indicates a disclosure of the absence of the widow from the jurisdiction and compliance with the law for residence service upon advice given by the deputy clerk of the Probate Court as necessary procedurally before an appointment as administratrix could be legally made. (Neither party, employed legal counsel until these actions were commenced.) Angela Sneller was appointed administratrix on the 29th day of July, 1957 and upon giving bond in the sum of $4,000, proceeded to perform the duties of the office. Each subsequent step, as required by probate law, including the appointment of appraisers, the filing of the inventory and appraisement, the application for the determination of inheritance tax and the like, proceeded in good order, and where necessary, all verifications were executed by deputy clerks of the Probate Court.

The inventory and appraisement disclosed that the deceased was the owner of a two-thirds interest in the real property occupied by the Troha’s as their family dwelling which interest was appraised as of the value of $8666.00. The personal assets were found to consist of one share of stock in The General Electric Company, valued at $67.00. The appraisers, as required by §§2115.13, 2115.14 and 2115.15 R. C., set aside as exempt from administration, there being a surviving spouse, the sum of $1746.00, and made an allowance of $2,000 for the widow’s year’s support, the appraisers finding that there was not sufficient personal property of a suitable kind for that support. The report of the appraisers was thereafter approved by the court.

It is hard to conceive of one unfamiliar with probate practice moving forward with each required procedural step, including all notices, either waived or served, as provided by law (where the services of a lawyer had not been employed), except upon the advice of the court personnel to whom great credit is due for their patience and understanding. It could not be expected that they would act without full inquiry of the surrounding circumstances necessary to guide them, which must have included knowledge of the whereabouts of the surviving spouse. - The only step omitted, as shown by the record, was the issuance of a citation to the surviving spouse “by the court” where a waiver of her right to the appointment as administratrix of her deceased husband’s estate was not filed with the application for such appointment by his daughter as provided by §§2113.06 and 2113.07 R. C. The first two full paragraphs of §2113.06 R. C., designate to whom and in what order appointments for the administration of estates are to be made. Such paragraphs provide:

“Administration of the estate of an intestate shall be granted to persons mentioned in this section, in the following order:
(A) To the surviving spouse of the deceased, if resident of the state;
(B) To one of the next of kin of the deceased, resident of the county:
(C) To one of the next of kin of the deceased, resident of the state;
“If the persons entitled to administer the estate fail to take or renounce such administration voluntarily, they shall be cited by the probate court for that purpose, if resident within the county.”

The first two paragraphs of §2113.07 R. C., provide:

“Before being appointed executor or administrator, every person shall make and file an application under oath, which must contain the names of the surviving spouse and all the next of kin of the deceased known to such person, their post-office addresses if known, a statement in general terms as to what the estate consists of and its probable value, and a statement of any indebtedness the deceased had against such person making said application.
“The application may be accompanied by a waiver signed by the persons resident of the county entitled to administer the estate, and in the absence of such waiver such persons shall be cited by the probate court for the purpose of ascertaining whether they desire to take or renounce such administration.”

The duty to cite a spouse whose waiver does not accompany an application for appointment as administrator of an estate by one lower in priority is, by both of these sections, placed upon “the Probate Court.” Failure to issue such citation cannot be charged to an applicant for letters of administration where all of the facts have been disclosed as was done in this case.

The conclusion that the application for letters of administration of the estate of Philip Troha by Angela Sneller was “precipitous,” “lacking in good faith” and accomplished by fraudulent conduct, is not supported by the record. The record fails to show that the widow advised anyone of her whereabouts or her plans to return. In fact, there is not a syllable of evidence in the record that she made any inquiry concerning the burial of her husband. The conclusion could be properly drawn that because of the “prenuptial agreement,” she had no interest in the estate and that she considered it was the burden of his children to see to his burial and to take care of settling his affairs. Her lack of concern and indifferent conduct was such that a constructive waiver of her statutory priority to act in administering her husband’s estate could reasonably be deduced therefrom. The widow’s delay in returning to the United States was also a factor in dealing with the creditors of the deceased. Must one who has expended considerable money in returning the body of a deceased husband from Europe be required to stand by and wait indefinitely until the widow, who was with the deceased when he passed away, continues on her tour with all the assets there at hand and without even a suggestion of her intended time of return? The applicant (Angela Sneller) did not act until it was clearly evident that the surviving spouse did not intend to return with the body of her deceased husband. We also hold, as a matter of law, that in addition to her unreasonable delay in seeking the right to administer her husband’s estate and her disinterested conduct as to his affairs, that by the terms of the “‘prenuptial agreement,” she was without any interest in her husband’s estate, and by making an adverse claim against those legally entitled thereto, she became an unsuitable person to carry out the trust. The judgment granting the widow’s motion to remove Angela Sneller as administratrix of the Estate of Philip Troha is reversed as contrary to law and not supported by sufficient evidence and the cause remanded with instructions to overrule such motion.

Coming now to the declaratory judgment construing the “prenuptial agreement,” The court held that this agreement was valid and binding upon the parties whereby Pauline Troha is barred from any right of dower or of a distributive share in the property comprising the Estate of Philip Troha but that such agreement did not preclude her, as the surviving spouse, from claiming, and it was decreed that she had the lawful right to: 1) the non-probate assets as defined by statute; 2) the year’s allowance as provided by statute; and 3) the right provided by statute to the use of the mansion house for one year or the value of such use in money.

With that part of the judgment or decree holding that the surviving spouse was, by the “prenuptial agreement,” barred from a distributive share in the Estate of Philip Troha, we are in complete accord and that part of such decree is affirmed. The appellee’s cross appeal, claiming it was error to construe the “prenuptial agreement” as a bar to the widow’s right to take under the statutes of descent and distribution, is, therefore, dismissed. Also, that part of the decree of the court, holding that Pauline Troha could claim no part of the joint and survivorship account in The National City Bank in the names of Philip Troha, Sr., and Philip Troha, Jr., is likewise affirmed.

We find, however, that that part of the decree sustaining the claim of the surviving spouse to the alleged statutory exemptions, that is, to the non-probate assets of the estate under §2115.13 R. C., and to a year’s allowance, both as set out in the inventory and appraisement and approved oy the court, and the holding that the surviving spouse is entitled to the right to occupy the mansion house for one year or its equivalent value in money, such interests not being controlled or released by the terms of the “prenuptial agreement,” is contrary to the true meaning of such agreement and must be reversed and final judgment entered thereon for the appellant.

The agreement, as above quoted, in part, wherein it is provided: “and in lieu of any and all rights or claims in or to the estate of the said First Party (Philip Troha) which may arise or accrue by virtue of said marriage” is as complete a waiver of all of the statutory benefits of the appellee in the estate of her husband. Three separate phrases are used in the agreement to define what the “Second Party” was giving up for the benefits to her in releasing her property from any claims of the first party as a result of the contemplated marriage. They were “all rights or claims of dower, * * *;” “all right, title, interest, or claims to a distributive share of First Party’s personal property, * * *:” and. “all rights of claims in or to the estate of said -First Party which may arise or accrue by virtue of said marriage.” As just indicated, the last phrase is all inclusive and was intended to release every right accruing to or conferred upon appellee by law in and to the property of Philip Troha upon his death after the marriage was consummated.

The claim that the appellee cannot contract away her statutory rights in the property of her husband’s estate is not supported by the authorities. In the case of Cohen v. Cohen, 82 Oh Ap 260, 80 N. E. 2d 813, this question,was directly considered and the rule clearly stated. The court held:

“An antenuptial agreement found to be fair, reasonable and by the decedent fully performed for some sixteen years is sufficient to preclude the widow from receiving the exemptions provided by §10509-54 GC, and is a complete bar to setting them off to her.”

and on page 262, the court said:

“Historically, the purpose of the statute was to partially compensate the surviving spouse for loss of vested dower rights which were abolished at the same time and to supplement the compensatory increase granted a spouse under the statutes of descent and distribution, changed at the same time. See comment under §10509-54 GC, and Vol. IV, Ohio BAR, page 412.
“It, therefore, appears that the wording of the antenuptial agreement is peculiarly apt in specifically covering dower rights and claims to a distributive share of the estate.
“Further, the antenuptial agreement clearly declares its provisions to be in lieu of any and all rights or claims to a distributive share of the personal estate now owned or hereafter acquired, and in lieu of any and all claims or rights in and to the estate which may arise or accrue by virtue of the marriage.
“The language is all-inclusive, and leaves no room for construction by a court and clearly covers the provisions of that section.”

We also hold that the fact that the court approved the statutory allowances set off by the appraisers without objection does not preclude the court from thereafter considering the question of whether or not the widow’s right to such allowances is barred by a “prenuptial agreement.”

For the foregoing reasons, and as herein set out, the judgment of the Probate Court, removing Angela Sneller as administratrix of the Estate of Philip Troha, deceased, is reversed and the cause remanded with instructions to overrule the motion seeking her removal. It is further ordered that the decree declaring the rights of the appellee, Pauline Troha as the surviving spouse, to certain assets of the Estate of Philip Troha, under the provisions of the “prenuptial agreement” of the parties is affirmed in part and reversed in part, the reversal being for the reason that that part of the decree reversed is contrary to law, and final judgment entered thereon for the appellant.

HURD and KOVACHY, JJ, concur.


author: By HUNSICKER, J:

text:
    BUTRAM, Plaintiff-Appellant, v. BLAIR, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24389.
    Decided March 12, 1958.
    Nathan Friedman, for plaintiff-appellant.
    Clayborne George, for defendant-appellee.
    (HUNSICKER and DOYLE, JJ, of the Ninth District, HORNBECK, J, of the Second District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

Anna Butram filed her action against Terrance E. Blair to recover for the damages she claims she sustained when, as she alleged, the automobile of Terrance E. Elair backed into her automobile. A judgment was returned for Blair and Mrs. Butram then perfected an appeal to this court on questions of law.

The trial court heard the case without a jury, and at the request of counsel for Mrs. Butram, filed conclusions of fact found separately from conclusions of law.

The principal question before us concerns the conclusion of the trial judge that Harold Butram, the husband of "the appellant, Mrs. Butram, who was the driver-bailee of the automobile involved herein, would not be permitted to testify as to the “value of the vehicle prior to and after the accident.”

This raised the question as to whether a bailee, not a party to the suit, may testify as to value merely by reason of the fact that he is a bailee. No qualification of the witness, other than that he was a bailee-driver of the automobile, was shown in the conclusions of fact.

The law is cle^r that the owner of personal property, because of such ownership, is permitted to testify regarding its value although such owner is not qualified as an expert witness. The mere fact of ownership creates the competency of the witness. 21 O. Jur. 2d Evidence, para. 476, page 488, and authorities there cited; Groves v. Gray, 74 Oh Ap 384, 59 N. E. 2d 166; Mills v. Banks, 97 Oh Ap 557, 127 N. E. 2d 773; Detroit and Ironton Rd. Co. v. Vogeley, 21 Oh Ap 88, 153 N. E. 86; 6 O. Jur. 2d, Automobiles, para. 414, page 711; III Wigmore on Evidence, 3rd Edition, para. 716, et seq., page 48.

Where, however, a person not a party to the suit, such as we have herein, does not have any qualification as to value other than being the driver of the damaged vehicle, his testimony thus offered to establish value is not admissible in evidence.

The trial court in the instant case said that Harold Butram was not a competent witness but as we read the complete conclusions of fact and conclusions of law, it is readily apparent that such court meant that the testimony of the bailee-husband of Mrs. Butram was not admissible because he lacked the proper qualifications which would permit his testimony as to value to be accepted and considered by the court.

Under the circumstances herein, we must say that the judgment of the trial court was correct and the judgment must be affirmed.

Judgment affirmed.

DOYLE and HORNBECK, JJ, concur.


text:
    COLUMBUS (City), Plaintiff-Appellee, v. MOSKO REALTY COMPANY, Defendant-Appellee, and COLUMBUS (City), Trustee, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5707.
    Decided May 20, 1958.
    Russell Leach, City Atty., Columbus, for plaintiff-appellee.
    John J. Chester, Jr., Robert P. Duncan, Columbus, for defendantappellee, Mosko Realty Company.
    John W. E. Bowen, Alba L. Whiteside, Asst. City Attys., Columbus, for City of Columbus, Trustee, defendant-appellant.
   OPINION

By MILLER, J.

This is a motion filed by the Mosko Realty Company, defendant-appellee, seeking an order dismissing the appeal for the following reasons:

(1) The appellant has failed to comply with Rule V of this court which spells out the procedure to be followed in making up the record to be presented at the time of trial.

(2) The funds involved herein have been distributed in accordance with an order of the Common Pleas Court.

The first branch of the motion is not well taken as this court sustained a previous motion of the appellant appointing a master commissioner to take testimony to be presented in the case. When this question was up for consideration counsel for the appellee made no objection to the appointment, and it is now too late to charge noncompliance with the rule, as this objection appears to have been waived.

In considering the other ground set forth in the motion the record reveals that the City of Columbus brought proceedings to appropriate certain property on South Fourth Street in the City of Columbus which property was owned by the City of Columbus, Trustee of Hare Charity Fund, and in the possession of the Mosko Realty Company under a 99-year lease. By agreed entry the court fixed the amount of $53,000.00 as compensation to be paid by the City of Columbus, plaintiff, in the appropriation proceedings. The Mosko Realty Company and the City of Columbus, Trustee, filed applications for distribuiton of said amount. On the 10th day of May, 1957, the court decided the matter of the applications for distribution and found that the Mosko Realty Company was entitled to $31,400.00 and the City of Columbus, Trustee, was entitled to $21,600.00. This decision was journalized on May 15, 1957,- to which the City of Columbus, Trustee, noted exceptions.

On May 29, 1957, counsel for the City of Columbus, Trustee, filed a notice of appeal to the Court of Appeals from said judgment, stating that the appeal was on questions of law and fact.

The record reveals further that the order of distribution has been fully complied with and it is for this reason that the appellee is now seeking a dismissal of the appeal. Counsel for the appellant urges that the appeal may still be prosecuted, citing Betleyoun v. Indus. Comm., 31 Oh Ap 53. The syllabus of this case provides:

“When an amount found in favor of a litigant by a judgment of a court is due him in any event, and it is admitted that he is entitled to receive and retain it, and his claim that he is entitled to a greater or an additional amount is denied him, his acceptance and retention of the amount of the judgment does not prevent him from prosecuting an error proceeding to obtain a reversal of that part of the judgment denying him an additional amount.”

It will be noted that the appeal is on law and fact which requires a trial de novo; hence, the judgment of this court may enlarge or reduce the allowance made to this appellant and the amount of the judgment would not be due to the appellant in any event as in the cited case, where the court announced the general rule applicable at page 56:

“We agree with the claim of the defendant that the general rule is ‘that a party who has taken advantage of a judgment or decree may not afterwards question its validity.’ ”

In the case at bar the appellant has taken advantage of the judgment by accepting the award and is now attempting to litigate the matter further. The rule applicable also appears to be clearly set forth in Lake Shore Elec. Ry. Co. v. Rohrbacher, 44 Oh Ap 529, the first paragraph of the syllabus of which provides:

•‘Plaintiff, who recovers judgment for lesser amount than he claims and thereafter receives payment of judgment and costs, cannot prosecute error.”

We recognize that there are exceptions to the general rule announced supra, but that the facts in this case do not come within the exceptions.

The motion to dismiss will be sustained.

PETREE, PJ, BRYANT, J, concur.


text:
    STATE, Plaintiff-Appellee, v. MORELLO, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5899.
    Decided June 3, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Paul A. Scott, Asst. City-Atty., Columbus, for plaintiff-appellee.
    Leda C. Hartwell, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

The defendant-appellant, Salvatore Morello, was charged in the MunicipaJ Court of Columbus, Ohio, with having sold intoxicating liquor on or about September 13, 1957, to one Mary Floyd, an intoxicated person, in violation of §4391.22 R. C. A jury trial was had and a verdict of guilty was returned upon which judgment was pronounced and from which this appeal is prosecuted. The appeal is. designated as one on law and fact, but under §2501.02 R. C., it is not so appealable and hence it will be considered as one on law only.

The first assignment of error charges that the court erred in admitting improper and prejudicial evidence on behalf of the State over the objection of the defendant. The record reveals that the court allowed the prosecution to introduce into evidence a transcript of the journal entry made in the case of City of Columbus v. Mary Floyd, which reveals that Mary Floyd entered a plea of “guilty” on September 14, 1957, to a charge of having been intoxicated.

Counsel for the appellant cites Clark v. Irvin, 9 Ohio Reports, 131, which was an action brought by Irvin against Clark for damages arising out of an alleged assault and battery committed by Clark against the plaintiff Irvin. During the course of the trial before a jury the plaintiff introduced a transcript of the proceedings before a Justice upon a criminal complaint for the same assault and battery in which Clark pleaded guilty The trial court instructed the jury that this plea of “guilty” was conclusive of the guilt of Clark and estopped him from proving the contrary. The court did not hold that the transcript was inadmissible but only that the court erred in its introduction to the jury. In our case the court properly instructed the jury regarding the transcript when it charged:

“Now the court again reminds you that as a matter of law the plea of guilty to this charge of intoxication by one Mary Floyd may be considered by you as evidence supporting the contentions of the State— that she was in fact intoxicated at that time. However, you should consider that plea, together with all of the evidence that you have heard here, in determining whether or not you are satisfied beyond a reasonable doubt that she was in fact intoxicated at the time this sale was purported to have been made.”

In Fisher v. State, 84 Oh St 360, the defendant was being prosecuted for contributing to the delinquency of a minor child and the court held that the record of conviction of the child on a charge of delinquency was admissible. See also, State v. Griffin, 93 Oh Ap 299; Booker v. State, 33 Oh Ap 338.

It is our conclusion that the court did not err in admitting the transcript into evidence and even if it were erroneous it could not have been prejudicial, for counsel for appellant concedes that Mary Floyd was intoxicated, as she states at page 8 of her brief “If she were .intoxicated, and the record discloses that she was, we do not deny that, but we say that defendant-appellant had no opportunity of knowing this fact.”

It is also urged that the verdict is against the manifest weight of the evidence for the reason that the defendant had no knowledge of Mary Floyd’s condition. It is claimed that her condition was not discernible to this defendant and therefore he had no criminal intent. The record clearly reveals that Mary Floyd was in a high state of intoxication which was discernible to any ordinarily prudent person. This defendant was negligent in the performance of his duties as a bartender, if his statement is correct that he failed to observe her conditiop. Moreover, scienter is not made a part of the offense under §4301.22 R. C., and therefore a criminal intent is not necessary in order to sustain the conviction. The sale alone constituted the violation. See Sherman v. Krebs, 67 Abs 28; City of Toledo v. Kohlhofer, 96 Oh Ap 355. The record is convincing that the sale was made to Mary Floyd and that she was intoxicated. Therefore, the verdict is in accord with the evidence and not against the manifest weight of the same.

We find no prejudicial error in the record and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.