author: By CRAMER, J.

text:
    STATE, Plaintiff, v. WEBB, Defendant.
    Common Pleas Court, Butler County.
    No. 15651.
    Decided November 26, 1955.
    Jackson Bosch, Pros. Atty., Herbert A. Walsh, Asst. Pros. Atty., Hamilton, for State of Ohio.
    Paul A. Baden, Hamilton, Edward H. Dell, Middletown, for defendant.
   OPINION

By CRAMER, J.

This cause is before the court upon the defendant’s motion to set aside the jury’s finding of guilty and to grant him a new trial.

The defendant was convicted of buying property which was stolen, namely, two shot-guns, knowing the same to have been stolen. The principal ground upon which a new trial is sought is the court’s failure to withdraw from the consideration of the jury the testimony of one Andy Botos, the person who admittedly stole the guns and from whom the defendant admittedly purchased the same.

It is the defendant’s contention that Andy Botos, who at the time of the trial was an inmate of the Florida State Penitentiary, had at one time, in 1938 or 1939, been adjudicated as insane and committed by the Probate Court of Butler County, Ohio to the Longview State Hospital for the Insane at Cincinnati, Ohio. That prior to Botos’ testifying in this cause he had never been legally discharged from said institution as cured. The record from the State Hospital which had been filed in the Probate Court of this county revealed that Botos was released from the institution on a trial visit and was finally released as “unimproved” and for commitment to Mansfield State Reformatory.

The witness Botos testified in chief on behalf of the State in this cause and about half-way through his cross-examination the defendant made known to the court said witness’ adjudication, commitment to the State Hospital, and the fact that he had not been- discharged as cured, and his disability removed. The defendant learned of these facts during the cross examination of Botos and, in the absence of the jury, made a motion to the court to withdraw all of this witness’ testimony.

In the absence of the jury the court rather extensively interrogated the witness Botos to determine his capacity to testify in spite of such presumed continued mental disability. After such hearing the court concluded that the witness had sufficient mental capacity to observe, recollect and communicate, and a sense of moral responsibility.

The defendant’s motion to withdraw Botos’ testimony from the jury was overruled and the jury instructed that the court had determined Botos was competent to testify but that they should consider his presumed’ continued disability insofar as it might affect his worthiness of belief. The court in its general charge gave the jury similar instructions as to the manner in which it was to consider Botos disability.

The defendant contends that in failing to withdraw Botos’ testimony the court committed error prejudicial to him for the reason that under the law Botos was not competent to testify.

This then raises the question as to whether a person who has been adjudged to be of unsound mind is under the law absolutely incompetent. Sec. 2317.01 R. C., provides as follows:

“All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impression of the facts and transactions respecting which they are examined, or of relating them truly.”

It is our opinion that the case of State v. Wildman, 145 Oh St 379, 31 O. O. page 5, answers our question in the negative.

The foregoing case which was a much stronger one insofar as the facts were concerned, for the two prosecuting witnesses were feeble minded and the charge against the defendant was having carnal knowledge of an insane person knowing her to be insane. The court quotes with approval the following, found in 2 Wigmore on Evidence (3rd Ed., 583, Sec. 492), wherein it is stated:

“There was a period (and it has not so long passed away) when the deranged and defective, in- the superstitious belief of earlier times, which regarded madness as an affliction sent from heaven, were treated as incapable of being witnesses at all * *

“But this indiscriminate rule of exclusion, since the progress in popular understanding of mental derangement and defect has been modified and rationalized * * * — the law endeavors to make its tests fit the purpose.

“The question being whether the person is trustworthy as a witness, the law now asks whether in each case the derangement or defect is such as to make the person highly untrustworthy as a witness, it no longer excludes absolutely * * *.”

The Supreme Court said, in the course of its opinion:

“Under the trend of modern decisions the fact that the witness is insane does not necessarily exclude him from the witness stand. With the development of science in the treatment of insanity, courts have come to recognize that a person may be insane and at the same time competent to be a witness.”

It further stated that according to the general rule, the question of competency lies in the sound discretion of the trial judge, and, if he permits a witness of unsound mind to testify, his action in so doing is not a ground of reversal at the behest of an aggrieved party, unless there is an absence of discretion.

The court further announced that a person who is able to correctly state matters which have come within his perception with respect to the issues involved, and appreciates and understands the nature and obligation of an oath is a competent witness notwithstanding some unsoundness of mind. See also Vol. 42, O. Jur., pages 113-114 wherein it is stated that while under the common law the testimony of an insane person was thereby rejected as wholly incompetent, that the rule has been modified to allow the admission of such testimony when a witness is able to understand what he is saying and the obligation of an oath, and is able to give a coherent statement touching the matter upon which he is examined.

We made a preliminary determination of the capacity of this witness in the absence of the jury and determined that he was competent to testify. No hardship necessarily resulted from this action since if we were in error in our conclusion, the jury had a powerful corrective in their right to pass upon the credibility of this witness as tested on the stand by the usual appliances. See State v. Scanlan, 58 Mo., 204.

It is our conclusion that we were not in error in refusing to withdraw Botos testimony from the jury. Even if there was error in permitting the jury to have such testimony it was not prejudicial to the defendant since, in our opinion, there was ample evidence to sustain this defendant’s conviction without Botos’ testimony.

The motion for new trial will therefore be overruled.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    STATE, ex rel. ROTH et, Plaintiff, v. LEWIS, Mayor et, etc., Defendants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23556.
    Decided July 8, 1955.
    Lawrence Landskroner, Cleveland, for plaintiff.
    Ford, Reece, Howland & Wegman, Cleveland, for defendants.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

This original action in mandamus came into this court on June 15, 1955, for hearing upon its merits, an alternative writ of mandamus having theretofore been allowed on June 6, 1955, by all of the judges of the Eighth District Court of Appeals. The Village of Pepper Pike, through its attorneys, thereupon filed a demurrer to the petition. Counsel for the petitioning taxpayers then requested permission of the court to amend his petition.

Oral presentation of various aspects of the issues were made to the court, whereupon the defendants were granted permission to withdraw the demurrer to the petition and the answer filed herein, and their attorneys were asked by the court to file, first, a written motion to dismiss the petition as amended, and to strike it from the files, for the reason that an action in mandamus covering the same matters raised by the within petition had previously been filed in the Court of Common Pleas of Cuyahoga County and was still pending in that court; and, second, to refile a written demurrer to the petition as amended, which demurrer would be considered only in the event the motion had been denied. The request of counsel for plaintiff to amend the petition was granted.

Counsel for all of the parties then waived further oral discussion and oral argument upon 'the matters presented, agreed to file written briefs, and, in that way, give to the court the questions raised by the motion and the demurrer.

The first matter to consider is the motion filed by the defendants, who say that the same taxpayer-relators in this action, pursuant to §733.59 R. C., on May 3, 1955, requested the village solicitor, by letter, to take certain “appropriate action” concerning the matters set forth in the mandamus action now before this court.

The village solicitor stated that on May 27, 1955, in accord with that request, he filed in the Common Pleas Court of Cuyahoga County, Ohio, a petition for a writ of mandamus against the same parties, and covering the same matters complained about by the taxpayers in the instant action; that service of summons was had in such' action prior to the obtaining of service herein, and that an alternative writ was thereupon issued in such prior action; that such action in the Court of Common Pleas is a valid pending action, since it has not been disposed of and is now awaiting trial in such court.

This court has before it all of the facts concerning this prior action in the Court of Common Pleas, we find that such action is against the same parties (with exception of the village solicitor), seeks the same relief as is sought in the instant action, and that such action was filed by the village solicitor at the request of the same parties who are all relators herein.

The first action in mandamus was filed in the Court of Common Pleas, which has jurisdiction to grant or deny all of the relief sought in the instant action.

Upon due consideration of the matters presented by the instant motion to dismiss the petition in mandamus filed in this court, this court grants such motion and orders such petition stricken from the files.

Exceptions granted.

HUNSICKER,' PJ, DOYLE, J, MIDDLETON, J, concur.


author: By CASE, J.

text:
    BALTIMORE AND OHIO RAILROAD COMPANY, Plaintiff, v. PRODUCERS LIVESTOCK COOPERATIVE ASSOCIATION, Defendant.
    Common Pleas Court, Payette County.
    No. 21813.
    Decided January 11, 1956.

      John S. Phillips, Chillicothe, Lovell & Woodmansee, Washington C. H., Robert O. Smith, Jr., Cincinnati, for plaintiff.
    Richard P. Rankin, Washington C. H., for defendant.
   OPINION

By CASE, J.

Inasmuch as this cause has been submitted to the court upon the pleadings and an agreed statement of facts, the court deems it to be in the interest of brevity and clarity to set forth herein plaintiff’s petition and exhibit attached thereto, the defendant’s answer, and said agreed statement, as follows:

“Plaintiff, The Baltimore and Ohio Railroad Company, is a corporation incorporated and organized under the laws of the State of Maryland in the United States of America, with its principal place of business at Baltimore, Maryland, and is a common carrier.

“Plaintiff says that there is due it from the defendant on an account, copy of which is attached, made a party hereof and marked Exhibit A, the sum of One Hundred twenty-one and 10/100 ($121.10) Dollars, with interest at 6% per annum from the 15th. day of June, 1952.

“Plaintiff further says that the defendant does business under the style and name of Producers Livestock Marketing.

“Wherefore, Plaintiff prays for judgment against the defendant in the amount of One Hundred Twenty-one and 10/100 ($121.10) Dollars, with interest at 6% per annum from June 15, 1952, and for its costs herein expended.”

“EXHIBIT A

Producers Livestock Marketing Auditor Freight

Traffic Claims Bureau

Address Washington Court House, Ohio

Dept. No. OC-94295-7

To The Baltimore and Ohio

Railroad Company, Dr. Months Acct July 1953

Date Made. June 25, 1953

Make remittance to Treasurer,

Baltimore and Ohio Railroad Company, Baltimore 1, Md.

For balanee of freight charges and tax due on B & O cars 112558 and 112387, containing 38 head ordinary stock cattle shipped by Producers Livestock Marketing, from McCook, Nebr., June 12, 1952, to themselves at Washington Court House, Ohio, covered by McCook, Nebr., to Washington Court House, Ohio, waybills 451261 and 451262, June 12, 1952, viz: 1 SD car ordered:

To E. St Louis, weight 24400 lbs. at

57c cwt. $139.08

IC 15% 20.86

2 SD cars furnished:

B & O 112558-Beyond, weight 22000 lbs at

56c cwt. 123.20

IC 15% 18.48

22000 lbs at

56c cwt. 123.20

IC 15% 18.48

Bedding 2.06

Tax on $445.36 @ 3% 13.36

Total $458.72

Paid 337.62

Balance due 121.10

Authority:

To E. St. Louis-57c CB&Q 1752-P, ICC 20205

Supplement 6, Table 2, Item 100

Beyond 56c CFA, ICC 4430

Plus 15% increase

Please show G. A. Bill No. 7000 and our claim number when vouchering in our favor.

Certified T. C. Potter

Approved W. A. McClean LW”

“ANSWER

“Now comes the defendant and for answer does deny each and every allegation in the petition contained.”

“AGREED STATEMENT OF FACTS

“The parties to this action by their counsel duly authorized, hereby stipulate and agree that the following are all the material facts involved in this controversy and that the same shall be submitted to the Court for decision without other evidence to be offered by either party:

“1. On June 12, 1952, The Producers Livestock Marketing Company, hereinafter called ‘Shipper,’ shipped 38 head of stocker or feeder cattle from McCook, Nebraska, consigned to Producers Livestock Cooperative Association, Washington Court House, Ohio, hereinafter called ‘Producers.’

“2. Shipper ordered one 40 foot single deck car from the agent of the C. B. & Q. R. R. Co., the originating carrier.

“3. Said originating carrier was unable to furnish the car ordered and instead, furnished for its own convenience, two 36 foot single deck cars.

“4. The shipper’s order for one 40 foot car and the carrier’s substitution for two 36 foot cars are clearly set out in the body of the Uniform Live Stock Contract which was executed by the originating carrier and Producers covering the shipment of said 38 head of cattle as follows:

“ T-40 Pt SD Ordered and Furnished 2 SD 36 in Lieu.’

“5. Said 38 head of cattle were loaded by said originating carrier as follows:

“19 head in CB&Q 59007 — Waybill No. 451261

“19 head in CB&Q 59007 — Waybill No. 451261

“6. The cattle weighed 23,090 pounds or an average of 607 pounds.

“7. Said CB&Q cars were routed by shipper as follows:

“ ‘CB&Q Omaha MP St. L. B&O Destn.’

“8. Said CB&Q cars were billed from McCook, Nebraska, as one car with a combined weight of 24000 lbs.

“9. Tariff CB&Q ICC 20205, under the so-called ‘two-for-one’ rule, permits the substitution of two 36 foot cars for one 40 foot car as ordered, and the assessment of charges from McCook, Nebraska, to St. Louis on the basis of one 40 foot car, weight 24000 lbs.

“10. From McCook, Nebraska, to East St. Louis, Illinois, under said CB&Q Tariff the rate was 57 cts. cwt., plus 15% increase, which produced aggregate charges of $159.94 as shown on Baltimore and Ohio Railroad Company Form 652-A, marked ‘Exhibit A,’ and attached hereto and made a part hereof.

“11. The Baltimore and Ohio Railroad Tariffs have no such ‘two-for-one’ rule in effect east of the Mississippi River on the movement from East St. Louis, Illinois, to Washington Court House, Ohio.

“12. When said CB&Q cars arrived at East St. Louis for interchange with the B&O to destination said 38 head of cattle were re-loaded 19 head each in B&O cars 112558 and 112387.

“13. ‘Exhibit A’ sets out in detail the various items which make up the railroad’s total bill of $458.72, which includes freight charges, bedding and tax.

“14. When said B&O cars were delivered at destination and a freight bill was presented, Producers refused to pay the freight charges as computed on two cars from East St. Louis and tendered $337.62, which the destination carrier accepted and credited on said total bill, leaving a claimed balance of $121.10, which The Baltimore and Ohio Railroad Company now seeks to collect.”

From all of the agreed facts of record herein, it clearly appears and is undisputed that the “Shipper” herein executed a contract with the originating carrier; and that said contract is generally known and described as the “UNIFORM LIVE STOCK CONTRACT” (adopted by Carriers in Official, Southern, Western and Illinois Classification territories, March 15, 1922, as amended August 1, 1930, and June 15, 1941) which was and is required to be used for shipments of Live Stock and Wild Animals instead of Uniform Bill of Lading.

Plaintiff admits that said contract expressly provided for through shipment from McCook, Nebraska, to Washington Court House, Ohio, in one 40 foot single deck car; and that it was expressly set out and noted in the body of said contract by said originating carrier as follows:

“1-40 Ft SD Ordered and Furnished 2 SD 36 in Lieu.”

It is also admitted by plaintiff that the two 36 foot cars of the originating carrier were furnished for the convenience of said carrier and were billed from McCook, Nebraska, as one car - with a combined weight of 24000 pounds.

It is not disputed that said 38 head of cattle could have been safely loaded and carried in one 40 foot single deck car called for by the contract; and it is reasonable to assume that plaintiff knew, or should have known, at the point of interchange, the terms and conditions of said contract between the shipper and originating carrier; and that the charges thereunder were to be based upon those applicable to one 40 foot car.

The sole question in controversy is whether the plaintiff should have loaded the shipment into one 40 foot car and assessed charges accordingly, rather than on the two-car basis as made.

In 9 American Jurisprudence 985, Sec. 899, it is stated:

“It is established that a through bill of lading issued by the initial carrier upon the acceptance of property for interstate or international transportation, under the provisions of the Interstate Commerce Act, governs the entire transaction and fixes the obligations of all participating carriers to the extent that its terms are applicable and valid; and a connecting carrier may not vary the terms of the original bill. Independently of statute, whether a connecting carrier is bound by the provisions of the original contract depends upon the circumstances of the particular case and the relationship of the carriers to each other.”

From the record in the instant case, there appears to be no facts or circumstances which would give rise to any exception under the general rule of law so established and recognized.

It is equally well established and recognized that the law imposes upon carriers the obligation of arranging to every reasonable extent for through carriage and through shipment. For obvious reasons, neither the burden of following his shipment to a connecting point between two carriers and there transferring it, nor of bearing the expense of such transfer, can or should be imposed upon the shipper under the agreed facts and circumstances of record herein. Nor under such circumstances could it be deemed fair and reasonable that the defendant should be required to pay higher charges than it would have paid had the connecting carrier furnished the equipment that was ordered by the shipper and that is provided for in the plaintiff’s tariff.

In the light of the law and facts hereinabove set forth and discussed, this court is compelled to conclude that 38 head of cattle, with an actual weight of 23,090 pounds, and the express notation on the original billing that said shipment was being moved as one car, even though actual movement into East St. Louis was in two cars, constituted sufficient facts and circumstances to put the Baltimore and Ohio Railroad Company on notice that, in the transfer of said shipment, it should have reloaded said cattle into one 40 foot car; and that to find otherwise, under the facts and circumstances of record herein, would have the force and effect of holding that defendant shipper was required to follow said shipment in order to insure that plaintiff carrier would transfer same in accordance with the terms and conditions set forth in said contract of carriage.

For all of the reasons hereinabove stated, this court must conclude that the collection of the charges herein sought by the -plaintiff would be unjust and unreasonable to the extent that they exceed those charges which would have accrued on the basis applicable to a car of the size ordered by the shipper and as expressly called for in the contract of carriage; and this court is therefore compelled to conclude that plaintiff’s petition should be dismissed at plaintiff’s costs.

Counsel for defendant should prepare an entry accordingly with appropriate exceptions therein noted, and submit, same to counsel for plaintiff and to this Court for approval by, on, or before January 23, 1956.


author: By BARTLETT. J.

text:
    GALLOWAY, Plaintiff, v. COLUMBUS-BROAD CORPORATION, etc., Defendant.
    Common Pleas Court, Franklin County.
    No. 190207.
    Decided November 8, 1954.
    David dayman, Samuel L. Zuravsky, Columbus, for plaintiff.
    Hamilton & Kramer, Columbus, for defendant.
   OPINION

By BARTLETT. J.

MOTION FOR LEAVE TO FILE AN AMENDED PETITION IS SUSTAINED, ON CONDITION PLAINTIFF PAY THE COSTS INCIDENT TO THE FILING OF THE DEFECTIVE PETITION, THE MOTION AND JUDGMENT ON THE PLEADINGS.

Previously the Court sustained a motion for judgment on the petition in favor of defendant on the ground that ultimate facts averred in the petition established, as a matter of law, the contributory negligence of the plaintiff.

Subsequently, the motion was filed, requesting leave to file an amended petition.

“3. Where a motion for judgment on the pleadings is made before trial and at a time when in effect such motion represents no more than a mere substitute for a demurrer to the petition, the plaintiff has the same rights with regard to amendment of a petition as he would have had if such a demurrer had been filed; and, if such motion is granted, plaintiff has the same rights with regard to amendment of his petition as he would have had if such a demurrer had been sustained.” Morton v. Fast, Exr., et al, 159 Oh St 381.

On page 387 of the opinion in the foregoing case, Judge Taft says:

“It is arguable that §11801 GC, authorizes a motion for judgment on the pleadings at any time and that defendant executor’s motion for an order of abatement and dismissal could be treated as such a motion. However, where such motion is made before trial and at a time such as in the instant case when, in effect, it represents no more than a mere substitute for a demurrer to the petition, the plaintiff should have the same rights with regard to amendment as provided in §§11361 and 11365 GC. This conclusion is fortified by the provisions of §11363 GC, reading in part:

“ ‘Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading * * * by inserting * * allegatons material to the case * * *.’”

Where a motion for judgment on the pleading is sustained:

“* * *, the pleader has the same right to appeal to the court's discretion to allow an amendment, or file other pleading, as he would have, were a demurrer made and sustained.” 31 O. Jur., Pleading, Sec. 288, p. 881.

“1. Courts should exercise great caution in rendering judgment upon the pleadings and opening statement of counsel, and the granting of a motion for such a judgment in favor of the defendant will be upheld only where it is clear that all facts stated and expected to be proved by plaintiff do not constitute a cause of action.” Ellis, Appellant, v. Victor Electric Products, Inc., Appellee, 85 Oh Ap 170.

After all the rights of the litigants themselves are paramount to the differences and views of their counsel; and the Court cannot maintain an unreasonable arbitrary attitude on such matters that would tend to create a lack of faith in the fairness of our judicial processes. Parties to law suits must not be forced to the conclusion that their rights are entirely subject to the frailities of the pleader in drawing their complaint.

“1. Under the provisions of §11365 GC, an amended petition may not be filed as a matter of right but the trial court is required to exercise sound discretion in permitting an amended petition to be filed.

“3. The meaning of the term ‘abuse of discretion’ in relation to the granting of a motion for leave to amend a pleading connotes more than an error of law or judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the court.

“5. Although the reviewing court will seldom disturb the judgment of the trial court where the controversy involves a factual situation, where the trial court is required to exercise its discretion as to whether a defect in the petition has been remedied by a tendered amended petition the discretion to be exercised is somewhat limited and the reviewing court is in as good position as the trial court to determine the legal question propounded.” Davies v. Columbia Gas and Electric Corp., 51 Abs 372.

Motion for leave to file amended petition granted, on condition that plaintiff pay the costs incident to the filing of the defective petition, the motion and judgment on the pleadings. Sec. 2309.58 R. C.


author: By MILLER, J.

text:
    STATE, ex rel. DeBOE, Plaintiff-Relator, v. INDUSTRIAL COMMISSION OF OHIO, Defendant-Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4880.
    Decided June 1, 1953.
    Gilbert Weil, Cleveland, John C. Durfey, Columbus, for plaintiff-relator.

      Hon. C. William O’Neill, Atty. Geni., Chalmers P. Wylie, James F. DeLeone, Asst. Attys. Geni., Columbus, for defendant-respondent.
   OPINION

By MILLER, J.

This is an original action in mandamus wherein the relator is seeking an order requiring the Industrial Commission of Ohio to enter an order granting his application for additional compensation for the violation of a specific safety requirement regulation issued by the Commission.

The record discloses that Norman DeBoe, the relator herein, was employed as a carpenter by the Albert H. Higley Company, an employer of labor amenable to the Workmen’s Compensation Law; that while so engaged he was required to work from a scaffold platform consisting of two planks of the dimensions required by Bulletin 202, Section 177, paragraph 4; that these planks were not placed close together as required by Section 164 of said Bulletin, but were approximately 18 to 24 inches apart; that on August 25, 1948, while working on said platform he stooped over to pick up a saw, lost his balance and fell to the floor causing the injuries set forth in the application. An application for compensation was filed with the respondent, jurisdiction of the claim was assumed and compensation and medical expenses were paid as provided by law. The accident was described on the application for compensation as — “Working on scaffold 6Vz feet high, bent to pick up saw, lost balance, stepped on defective, cracked plank in scaffold to regain balance, but the plank broke, causing the fall to concrete below.”

On July 24, 1950, relator filed an application for an additional award for violation of a specific requirement in which he alleged that “while I was working on a single' plank scaffold I lost my balance as I reached for my saw. In an effort to regain my balance I stepped on a plank that was lying on the scafforld which was to be used as a kicker on the form. The kicker plank broke under my weight and I fell. I had previously asked the laborer to remove this kicker plank because it was in bad condition.”

The specific requirement alleged to have been violated is paragraph (4) of Section 177, Bulletin No. 202, issued by the Industrial Commission and The Department of Industrial Relations, entitled “Specific Safety Requirements Relating to Building and Construction Work,” which provides:

“The minimum width of carpenters’, painters’, decorators’ and miscellaneous platforms shall be two, 2 x 10 inch planks.”

Hearing was had on this application on June 18, 1951, at which time a finding was made by the respondent denying the relator an additional award and a copy of the order was mailed to him as of June 25, 1951.

On October 15, 1951, the relator filed a motion with the respondent asking it to reconsider its order of June 25, 1951, and also, for the first time, alleging that in addition to the violation previously complained of, the employer had violated Section 164 of said Bulletin No. 202.

Respondent denied this motion in its order of February 4, 1952, which read as follows:

“That the claimant’s motion for rehearing filed on October 15, 1951, be denied for the reason that the same was not filed within the thirty day period prescribed by the Commission’s rules.”'

Relator on February 21, 1952, again moved the respondent to rehear the claim and on March 24, 1952, respondent ordered as follows:

“That the claimant’s motion for rehearing filed on February 21, 1952, be dismissed for the reason that a similar motion was denied by the Commission on February 4, 1952, and the motion filed on February 21, 1952, does not contain any new or additional facts which have not been previously considered by the Commission.”

We are of the opinion that since there was no issue on the fact the boards were laid 18 to 24 inches apart, there was a violation of Section 164 of said Bulletin. However, the question presented is whether this specific violation was seasonably filed in accordance with the rules of the Industrial Commission. The record reveals that the application for an additional award for the violation of a specific regulation was filed on July 24, 1950. It alleged only a violation of Section 177. Bulletin No. 202, no mention being made of Section 164. The application was denied on June 25, 1951. A motion for reconsideration was filed on October 15, 1951, and for the first time a complaint was made that Section 164 of Bulletin No. 202 had also been violated. It will be noted the application for reconsideration was filed beyond the thirty day period in which an application for reconsideration may be filed. Rule 4 of the Rules Governing Procedure in Claims for Additional Award on Account of Violation of Specific Requirement promulgated by the Industrial Commission provides:

“A motion for rehearing of the application for additional award may be filed by either party within thirty days from the date of receipt of the order and finding of the Commission complained of, provided there is filed with such motion for a rehearing, all new and additional proof not previously considered by the Commission and relied upon by the applicant in support of his motion for a rehearing. * * *”

Under the rule making powers of the Industrial Commission set forth in §1465-44 GC, such a rule has the same force and effect as a law of the State. Kildow v. Industrial Commission, 128 Oh St 573. Since the claimant failed to perfect his remedy within the time provided for under the aforesaid rule, the order of the respondent entered on June 25, 1951, became final at the termination of the thirty day period and the respondent was divested of jurisdiction to consider the violation of Section 164, as set forth in the motion for reconsideration which was filed on October 15, 1951.

Counsel for the plaintiff urges that since the referee for the Commission in his opinion stated that the platform was properly laid and that there was no requirement that the planks be laid in a juxtaposition, that Section 164 was given consideration. Even though this statement was made it was obiter and did not eliminate the necessity of setting up the claim of a special violation.

It'should be further pointed out also that this was the first time the respondent was put on notice that the relator was alleging a violation of Section 164. Rule 1 of the rules governing procedure in claims for additional award on account of violation of a specific requirement promulgated by the respondent provides:

“An application for additional award of compensation based upon the claim that the injury, occupational disease or death resulted because of the failure of the employer to comply with a specific requirement for the protection of the health, lives or safety of employees, must be filed within two years after the date of such injury, occupational disease or death, in duplicate, on forms prescribed by the Industrial Commission, setting forth the facts which are the basis of the alleged violation, and the section or sections of the law or code of specific requirements applicable.”

This rule, therefore, operates as a statute of limitation and the relator having failed to put the respondent on notice as to any violation of Section 164 of Bulletin 202 within two years, is forever barred from asserting such violation. The amendment to the original application for additional compensation was properly denied for the reason that it consisted of new matter and more than two years had passed from the date of the original injury to the time of the attempted amendment. See Bernhardt v. Industrial Commission, 127 Oh St 582; Ferguson v. Industrial Commission, 138 Oh St 529.

The plaintiff relies upon the case of Kaiser v. The Industrial Commission, 136 Oh St 440, in which the Court held that an original application might be amended more than two years after the original injury, to set up "a subsequent disability arising from the original accident. In the instant case it was sought not to set up a subsequent disability arising from the original accident but to set up the violation of specific safety regulations not described in the original application, by an amendment filed more than two years after the date of the injury. The facts in the Kaiser case, supra, are not parallel with those of the case at bar.

It is our conclusion that the plaintiff is not entitled to the relief sought and our judgment will be for the defendant.

WISEMAN, PJ, HORNBECK, J, concur.


text:
    COLUMBUS PIPE & EQUIPMENT COMPANY, Plaintiff-Appellant, v. ACKERSON, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4821.
    Decided September 25, 1953.
    Schwartz & Gurevitz, Carl B. Mellman, of Counsel, Columbus, for plaintiff-appellant.
    George E. Tyaek, Irving M. Gertner, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio, sustaining the defendant’s motion to dismiss at the close of the plaintiff’s case. The action was one seeking to recover the balance due upon an alleged account with the defendant which fact was denied by the defendant’s answer.

It should be noted first that in passing upon the defendant’s motion the Court was required to construe the evidence most favorably to the plaintiff, and if in so doing it should find that upon any essential issue reasonable minds might differ then the motion should have been overruled. Hamden Lodge v. Gas Co., 127 Oh St 469. Briefly stated the testimony favorable to the plaintiff disclosed that it is engaged in the sale of certain building supplies; that the defendant employed John Toone to do plumbing work for him; that in September, 1950, the defendant appeared at the offices of the plaintiff in the company of John Toone and made arrangements with the plaintiff whereby the defendant’s purchases would be charged to his account; that at this time certain supplies and materials were ordered and the same were signed for by said John Toone; that on several subsequent occasions both the defendant and Toone visited plaintiff’s plant and ordered other materials; that at least some of these orders were signed by Toone but they were all paid for by the defendant; that on other occasions materials were ordered sometimes by the defendant and sometimes by Toone and said materials were picked up and signed for either by Toone or his truck driver Bowman and that these orders were paid for by the defendant without objection; that the materials and supplies which were put in account by this litigation were purchased during the latter part of October, 1950, and on the first day of November of that year. Some of these orders were signed by Toone and some by his driver Bowman; that the defendant never informed the plaintiff that Toone was not authorized to purchase supplies for him until after payment was due for the October and November purchases.

The record reveals further that during the latter part of December, 1950, two representatives of the plaintiff discussed with the defendant the fact that the time for filing a mechanic’s lien against the defendant’s property would expire on January 2, 1951; that the defendant executed a draft on the Buckeye Savings & Loan Company for the balance due on October and November orders, payable to the plaintiff, that thereupon the plaintiff refrained from filing a mechanic’s lien upon the defendant’s property; that after the time for filing said mechanic’s lien on the defendant’s .property had expired the defendant stopped payment upon said draft.

In the light of all this testimony we are of the opinion that the Court erred in sustaining the defendant’s motion. Although express authority does not appear to have been given the plaintiff to permit John Toone to charge merchandise to the defendant, the evidence is sufficient to warrant a finding that an agency arose by implication or estoppel. See 1 O. Jur. 632. A presumption of an agency may arise from the manner in which the agent has acted with the consent, or, at least, without the disapproval of the presumed principal. 1 O. Jur. 634. Once an agency is shown to have existed it will be presumed to have continued in the absence of anything to show its revocation.

In-applying the foregoing legal principles to the evidence presented the Court might well have found that the defendant approved of the conduct of his alleged agent Toone. He paid the plaintiff for some of the materials ordered by Toone and did not indicate to it that Toone’s authority to act for him had expired.

It is our conclusion that the plaintiff made a prima facie case and the Court erred in sustaining the motion to dismiss. The judgment will be vacated and cause remanded for further proceedings according to law.

WISEMAN, PJ, HORNBECK, J, concur.


author: By HOLTSBERRY, J.

text:
    JUSTICE, Habeas Corpus, In re.
    Common Pleas Court, Licking County.
    No. 42525.
    Decided February 27, 1956.

      Kenneth Little, Columbus, on behalf of petitioner.
    Donald M. Hamilton, Jr., Columbus, on behalf of respondent, Madelon Boyle.
   OPINION

By HOLTSBERRY, J.

JoAnn Justice, now 17 years old, resides with her aunt, Madelon Boyle at Summit Station, Licking County, Ohio. She has been with her aunt the last 12 years. JoAnn has a twin sister, Lee Ann, who lived with her sister and aunt at the Boyle home until June, 1955, when she left the Boyle home and began living with her father, Dane Justice, at Fairborn, Greene County,'Ohio. Dane Justice is a Colonel in the United States Air Force.

The father filed his petition herein asking that a writ of habeas corpus issue discharging JoAnn to his custody. Said petition is grounded upon alleged illegal restraint of liberty and detention without legal authority.

Said aunt answered the writ in writing denying the claim of illegal restraint and detention and raised the issue of the welfare of JoAnn. The petitioner at the commencement of the trial denied the allegations of Mrs. Boyle. The case was tried upon the illegal restraint issue and further upon the issue of the welfare of the child.

The evidence disclosed that shortly after the birth of JoAnn, her mother died. When the twins were five years old, in 1943, Dane Justice and said aunt entered into an oral agreement concerning the possession and rearing of the girls. The aunt refused to take them temporarily, saying that she did not want to become attached and have them taken away after a few years, but that she would raise them as her own. The father agreed to this and further that he would provide partial support. Pursuant to this agreement, Mrs. Boyle and her husband, Earl, took possession of said girls. Over the years the Boyles have displayed an unusual interest in the rearing of these children. To better the environment for the rearing of the children, they even changed neighborhoods. Mrs. Boyle made clothing for the girls, gave them a practical training in home responsibility, kindled an interest in religion and education and generally provided an affirmative climate conducive to future happiness and good citizenship. JoAnn addresses Mrs. Boyle as “Mommy.”

Her habits, associations and attachments resulting from her living at the Boyle home the last 12 years are most commendable. She is an unusually good student at the Summit Station High School, where she will graduate in June. She has been active in church work, as well as displaying characteristics of industry and thrift and by working part-time, has saved money to assist her in pursuing higher education when she enters Ohio State University, where she plans to study journalism.

This young lady displayed unusual poise on the witness stand, expressing her love, respect and gratitude for the Boyles. She stated she believed it would be detrimental to her life emotionally and in other ways for her father to force her to go home with him at this time.

Mrs. Boyle has not, and does not at the present time, refuse to let JoAnn go to her father if this be her wishes. She has not denied reasonable visitations and there is no evidence of illegal restraint.

It was on December 4, 1955, that the father first indicated he wanted JoAnn to live permanently with him. During certain periods the interests of the father left much to be desired, particularly during the period of matrimonial unrest resulting from a second marriage. Petitioner is now married to his third wife, who works at the air force base practically the same hours as that of the Colonel.

Abandonment need not be total in scope to reflect upon the best interests and welfare of a child. There can be an abandonment with respect to future welfare in spite of partial payment and support and some visitations, where under the circumstances a father contracts away certain rights, accepts and complies with such contract, and where love, attention and interest has been unreasonably absent.

The record also discloses that at one time the father expressed a desire and even took some steps to have the Boyles legally adopt the girls.

Petitioner has utterly failed to prove any illegal restraint of liberty and detention without legal authority. In fact, the evidence clearly establishes the facts to be otherwise.

Concerning the question of JoAnn’s welfare, this Court is positively of the opinion that it would best be served by possession remaining in the aunt. With respect to the modern trend of legal authorities on such matters this Court has reviewed many cases.

Possession is a word which is ambiguous in meaning. It is invariably used to describe actual and constructive possession, which are so often shaded into one another that where one ends and the other begins is often difficult to determine. Possession, where the human element and best interests of a child is concerned must be considered in the light of many things; past, present and future environmental influences upon the individual, the probability of the child’s individual characteristics and tendencies being favorably developed or thwarted; and the child’s maturity, or lack thereof, to wisely choose, under existing circumstances and those likely to develop, the surroundings and persons which will promote and insure its best interest and welfare. Rules and guides laid down in such matters must ever be flexible because inevitable changes from generation to generation effect the living of the individual. Time changes but fundamentally people do not.

Sometimes a parent has by act and word transferred custody to another and in such cases, where the custodian is, in every way, a proper person to have the care, training and education of the child, and where the court finds its social, moral and educational interests will be best promoted by not being transferred, the court will treat it as lawful. (Clark v. Boyer, 32 Oh St 299.)

A father may delegate or abandon or be deprived of his authority over his child, and the public policy does not forbid this, but in many cases requires it. (Day v. Everett, 7 Mass., 144.)

After a state of things has arisen which cannot be altered without risking the happiness of a child, where affections have jelled, the better opinion is that a parent is not in a position to have the interference of a court in his favor.

Questions of rightful custody have been made in proceedings in habeas corpus in this country where alleged illegal restraint was the chief question for consideration. The spirit of the law is revealed in several of the following cases:

The Supreme Court of Delaware in the Bratton case, reported in American Law Reg. (N. S.), Volume 15, 359, which was a contest between father and grandmother for custody of children, the court held that the prima facie right of the father is not absolute and unqualified, but may be forfeited or relinquished under certain circumstances.

In State v. Smith, 6 Greenlief, the holding was that circumstances could alter the father’s right to claim children as a matter of right.

A given state of attending facts could justify a holding that a parent relinquished the right of custody by parol. (See Gishwiler v. Dodez, 4 Oh St 615.)

An English case was in harmony with our American decisions. In Lyons v. Blenkin, 245, the lord chancellor states: “It is always a delicate thing for a court to interfere against parental authority, yet we know that the courts do it in cases where the parent is capriciously interfering in what is clearly for their benefit.” In reaching his conclusion he placed great weight upon formed habits, associations and attachments.

Hurd, in his work on Habeas Corpus asks the logical question how a court could pronounce that custody held under a fair agreement with a parent and not adverse to the welfare of the child, could be an illegal restraint.

In Re Tilton, 161 Oh St 571, the court held that an unwed mother by surrendering possession of her child to blood relatives and by executing a written instrument surrendering possession could not regain possession by habeas corpus where the child’s best interests required otherwise. And where it was found the mother’s acts amounted to abandonment.

The serious question raised in the Tilton case was whether the Ohio statutes permitted the Common Pleas Court to enter an order against petitioner in a habeas corpus proceedings and thus, for practical purposes, deny the mother custody of her child. The Supreme Court said in answering this that it is the law of Ohio that the welfare of a child is first to be considered by a court. The Court further spoke of certain legislative acts of Ohio as commendable which deal with care and custody of children, but said * * * “but in legislating the General Assembly cannot be said to have disregarded the fundamental principle above stated.” (The principle referred to is stated in the preceding paragraph of the Supreme Court opinion as follows: “In all cases of controverted right to custody the welfare of the minor child is first to be considered.”)

In those instances where the Legislature of Ohio has acted with reference to custody but limited the section as for example by specifically mentioning children of parties in divorce cases, if the General Assembly had intended the provision to extend to all cases where custody and control of children were involved, it would naturally have said so.

I am of the opinion that the opinion and wishes of JoAnn Justice should be given serious consideration and effect under the facts of the instant case. Although her wishes and desires are not mandatory, they reveal that her contentment, emotions and future depend largely upon the compliance therewith. True, the statute giving the child the right to elect between parents under the domestic relations statutes would not be applicable herein, however, a consideration of the election statute, together with a study of the content of other Ohio legislation or legislative acts pertaining to custody and possession of minors reveals an intent on the part of the Legislature like the courts, to give much weight to the wishes and desires of children, particularly in their late teen years, where their interests and welfare are at stake.

Even though the statute permitting a minor over 14 years to choose between the parents is not binding in the instant proceedings, where the possession of a child over 14 years has been voluntarily relinquished by a father to a blood relative under an agreement where the possession is not to be taken away or disturbed and where the child has further been properly reared and loved for a number of years, and is content and the evidence further shows the child is well adjusted, the wishes of the child in the opinion of this Court raises a presumption that the child’s best interest will be served by not being changed, in the absence of a showing that such change would be beneficial to the child’s welfare.

In Sheely v. Sheely, 88 New Hampshire, 223, it was held that a court without jurisdiction to make an order designating a permanent custody for a child may have jurisdiction to make a temporary order of custody as incidental to its power to administer the summary remedy of habeas corpus.

Ordinarily the basis for the issuance of a writ of habeas corpus is an illegal detention, but in the case of a writ sued out for the detention of a child, the chief concern of the court should be the welfare of the child. (Barlow v. Barlow, 141 Georgia, 535; Bellmore v. McCloud, 189 Wisconsin, 431, State ex rel Jones v. West, 139 Tennessee, 522, Buchanon v. Buchanon, 170 Virginia, 458.)

A court is not bound to deliver a child to a parent upon the claim of mere legal right of a parent, but should in the exercise of a sound discretion and after careful consideration of the facts leave it where the welfare of the child at the time appears to require. In short the primary object of habeas corpus, as applied to children, is to determine in whose custody their best interests will probably be advanced. (25 American Jurisprudence [Habeas Corpus] page 205; 20 O. Jur. [Habeas Corpus] page 465.)

In Re Duffy, 78 Oh Ap 16, is not authority on the instant question as careful examination of the court’s opinion reveals in paragraph 7, second sentence, “the welfare of the child was not made an issue in this case.”

The instant case must also be distinguished from those cases between parents concerning children where the statute concerns itself with instances where the court finds “neither parent is a suitable person to have custody.”

After careful consideration of this case, this Court finds that first, there has been no illegal restraint as alleged, and therefore the application for writ of habeas corpus should be and hereby is denied. Second, that since an issue has been made as to the welfare of JoAnn Justice, this Court can reach no other conclusion than that the best interests of said girl requires that her possession remain with her aunt.


author: By WISEMAN, J.

text:
    BETTER HOMES EQUIPMENT COMPANY, Plainiff-Appellee, v. NIXON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5226.
    Decided September 16, 1955.
    Ingalls & Jones, Gene Jones, of Counsel, Columbus, for plaintiffappellee.
    John R. Schickler, Columbus, for defendant-appellant.
   OPINION

By WISEMAN, J.

This is a law appeal from the judgment of the Municipal Court of Columbus entered in favor of the plaintiff.

Plaintiff sued for money loaned. The defendant filed a general denial and set up a special defense and counterclaim in which he claimed he was employed by the plaintiff company at a salary of $110.00 per week for a period of eight weeks; that the payments made by the plaintiff company in the amount of $655.00 were made on account of salary and that there was due him from the plaintiff company the sum of $225.00. Plaintiff in reply denied that it entered into a contract of employment with the defendant, and that there was a balance due.

Defendant assigns as error the introduction into evidence of an unsigned memorandum written by Mr. Brenner, president of plaintiff company. The memorandum supports the claim of the plaintiff that there was no contract of employment but that the defendant agreed to acquire an interest in the business. The defendant contends that the memorandum was a self-serving declaration and inadmissible. The testimony of Mr. Brenner was to the effect that he wrote the memorandum during a conference with the defendant and that they both agreed to the contents of the memorandum. In our opinion the memorandum was admissible.

The defendant claims error in the admission into evidence of check stubs from the check book of the plaintiff company, which had on them a notation that the checks were issued to the defendant as a “loan.” The checks had no such notation. The defendant claims that the check stubs were inadmissible as self-serving declarations. The court admitted this evidence under §2317.40 R. C. This evidence was inadmissible at common law. Does §2317.40 R. C., permit the introduction of such evidence? It has been held that this Section does not have the legal effect of rendering competent otherwise incompetent evidence. In Zigler Milling Company v. Denman, 79 Oh Ap 250, 253, 72 N. E. (2d) 682, the syllabus is as follows:

“The provisions of §12102-23 GC, that certain records shall be competent evidence, are not intended to make competent in evidence records that may be classified as self-serving declarations.

“In the trial of an action on an account, it is not error for the court to deny the admission in evidence of a check stub offered by the defendant as corroborative evidence of the issuance and delivery of a check to plaintiff in payment of the account.”

On page 253 the court in discussing the legal effect of §12102-23 GC, now §2317.40 R. C., stated:

“It is the further judgment of this court that the Legislature in the enactment of §12102-23 GC, did not intend thereby to make relevant or competent that which was not responsive to the issue made, or to make competent in evidence that which theretofore had been repeatedly held to be incompetent for various unassailable reasons; but did intend to expedite proof of records which were competent and relevant records of business transactions, ‘made in the regular course of business, at or near the time of the act, condition or event.’”

In Dickson v. Gastl, 64 Oh Ap 346, 28 N. E. (2d) 688, it was held that an official record containing a self-serving declaration was not admissible at either common law or under the Code section cited. In Aftel v. Cound, 32 Oh Ap 270, where the factual situation and the issues raised by the pleadings bear a striking similarity to the facts and issues in the instant case, the third paragraph of the syllabus is as follows:

“In suit for recovery of money claimed to have been loaned to defendant, admission in evidence of ledger sheet similar to and in lieu of entries made on check stubs held erroneous, as being entirely incompetent.”

On page 273 the court said:

“The court received in evidence, over the objections and exceptions of the defendant, a ledger sheet known as Exhibit 27. This ledger sheet was similar to and in lieu of entries made on check stubs, and we think it was entirely incompetent and was erroneously admitted in evidence. In the case of Mathias Planing Mill Co. v. Hazen & Co., 20 C. C., 287, 11 C. D., 54, it was held that stubs on a party’s notebook are not competent to prove the purpose and effect of the notes given. The same principle would apply to check stubs, or ledger records thereof. Watts v. Shewell, 31 Oh St 331; Laning’s Estate, 241 Pa., 98, 88 A., 289, Ann. Cas., 1915B, 796; 22 Corpus Juris, 871.”

In an annotation on the subject in Vol. 68 A. L. R. 692, the rule is stated thus:

“The general rule seems to be that check stubs are not admissible as evidence.”

A more recent annotation is found in Vol. 17 A. L. R. (2d) 268. See also Carter v. Fischer (1900) 127 Ala. 52, 28 So. 376 and Mac Kenzie v. Barrett, (1909) 148 Ill. App. 414. Under the evidence in this case it cannot be said that the entires on the check stubs were made in the regular course of business, or that they fall within the “shop-book” rule.

Defendant assigns as error the overruling of the motion for new trial. The claimed error here consists only of the admissibilty of evidence in the two instances which have been discussed.

While the introduction of the check stubs was erroneous, we are not convinced that it constituted prejudicial error which would require a reversal. At best such evidence was largely cumulative. The burden of Brenner’s testimony was that the defendant acquired an interest in the business and was to share the profits and that the checks issued were in the nature of a loan. It does not appear upon what theory the trial judge decided the case. Plaintiff claims $655.00, but judgment was rendered for only $215.00. After a careful consideration of the whole record we cannot say that the admission of the check stubs was prejudicial.

Finding no error in the record prejudicial to the appellant, the judgment is affirmed.

MILLER, PJ, HORNBECK, J, concur.


author: By MILLER, PJ.

text:
    ALTER, Plaintiff-Appellant, v. PAUL, Sheriff of Franklin County et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5223.
    Decided September 21, 1955.
    Clifford F. Brown, Norwalk, for plaintiff-appellant.
    Wiles & Doucher, Columbus, for defendant-appellee, U. S. Fidelity & Guaranty Co.
    Clayton W. Rose, Jr., Columbus, for defendant-appellee, Ralph J. Paul.
   OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the defendants for the reason that a demurrer was sustained to the first cause of action upon the ground that the same was not commenced within one year after the cause thereof arose as required by §2305.11 R. C. The question presented is whether the action is one for false imprisonment or whether it is included within the actions enumerated by §2305.09 R. C., which may be brought within four years. This section provides:

“An action for any of the following causes shall be brought within four years after the cause thereof accrued:

* * * * *

(D) For an injury to the rights of plaintiff not arising on contract nor enumerated in §§2305.10 to 2305.12, inclusive, 2305.14, and 1307.08 R. C. * jji

In order to determine the question presented it becomes necessary to look to the first cause of action of the second amended petition which provides as follows:

“Plaintiff for his cause of action against the defendant, Ralph J. Paul, alleges that on or about the 29th day of April, 1951, defendant, Ralph J. Paul, unlawfully and forcibly arrested plaintiff against the will of plaintiff and without a warrant, and without reasonable or probable cause therefor; that upon said false arrest plaintiff was imprisoned in the County Jail over night before plaintiff’s final release approximately one day later; that no warrant ever was obtained by defendant for said plaintiff’s false arrest, thereby unlawfully depriving plaintiff of his liberty.

“Plaintiff further alleges that said unlawful and false arrest, and subsequent confinement in jail, was malicious, and with wanton and reckless disregard of defendant’s duty and of plaintiff’s rights.

“Plaintiff further alleges that by reason of said unlawful, false arrest inflicted upon plaintiff, the plaintiff was greatly injured, to wit: plaintiff suffered indignities, humiliation, shame and anguish of mind by reason of said false arrest; that said false arrest has injured the character and reputation of plaintiff and much publicity has been given to said arrest; that plaintiff lost his employment as an auxiliary or deputy sheriff for Franklin County, Ohio, and as a result lost earnings of several hundred dollars or more annually; that plaintiff has peen damages by reason of all of the foregoing in the sum of twenty five thousand dollars ($25,000.00).”

Counsel for the appellant did not appear for oral argument, but he urges in his brief that the action is not one for false imprisonment but is for false arrest, which is a tort coming within the four year limitation. We are not able to concur with counsel for the appellant in such a conclusion. The word “arrest” is derived from the French “arreter” meaning to stop or stay as signifies a restraint of the person. The term is defined in 5 O. Jur. 2d, 18, Section 2 as follows:

“An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. The seizing and placing in quarantine of a person pursuant to the health laws is an arrest. However, the mere accosting and making inquiries of a person by an officer does not constitute an arrest. Nor does the submission of a person constitute an arrest, if he is not at the time actually within the power of the officer. There is no arrest where the person sought to be arrested is not conscious of any restraint of his liberty, nor is there any arrest where a person is forcibly seized without pretense of taking him into legal custody.”

In discussing the essential elements of arrest in 6 Corpus Juris Secundum, 571, the author states that in order to constitute an arrest there must be an intent to arrest, under a real or pretended authority, accompanied by a seizure or detention of the person which is so understood by the person arrested. It is stated in 22 Am. Jur., Section 3, page 354, that false arrest and false imprisonment as causes of action are indistinguishable; that the only distinction lies in the manner in which they arise. This principle is followed in Fess’ Ohio Instruction to Juries, page 510, Section 51.1, to wit:

“False imprisonment is the unlawful arrest' and detention of the person of another, with or without a warrant or other process. It consists of an unlawful restraint upon a man’s person, or control over the freedom of his movements by force or threats. * * *”

It is our conclusion that since the term “false arrest” includes a false imprisonment, the provisions of §2305.11 R. C., were properly applied to the facts presented in this case. We find no error in the record and the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By THE COURT.

text:
    AMERICAN LEGION CLIFTON POST NO 421, Appellee, v. BOARD OF LIQUOR CONTROL, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5165.
    Decided February 15, 1955.

      Bernard J. McCluskey, Cleveland, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court reversing an order of the Board of Liquor Control which affirmed the Department in rejecting the application of Post No. 421, American Legion, for a D-4 liquor permit. The order of the Board of Liquor Control, which is the subject of this appeal, provides:

“This cause coming on for hearing on an appeal of the American Legion, Clifton Post No. 421, W. 220th Street & Brookpark Road, Park-view 26, Ohio, from an order of the Director of Liquor Control rejecting an application for a Class D-4 permit, was submitted to the Board of Liquor Control on the evidence, and on consideration thereof said Board finds that the appellant at on or about November 28, 1953, did openly and notoriously engage in the sale of beer and intoxicating liquor without being the holder of a permit issued by the Department of Liquor Control authorizing such sale, and further that on the 19th day of December, 1953, certain agents and employees of the appellant, to wit, Stanley Johnson and Howard L. Miller, were convicted in the Police Court of East Cleveland, Ohio, for violating §4301.58 R. C., and further that on the 19th day of December, 1953, one Don Bement, an agent or employee of the appellant, was convicted in the Police Court of East Cleveland, Ohio, for violation of §4399.09 R. C., and therefore said application for a Class D-4 permit should be rejected.

“It is therefore ordered that the within appeal be, and the same hereby is, dismissed.”

The question presented is whether the above quoted order is supported by evidence that is reliable, probative and substantial and in accordance with law, after giving consideration to the entire record. If so, the order should have been affirmed by the Common Pleas Court. Sec. 154-73 GC. An examination of the record discloses that all of the statutory requirements were met in order to entitle the applicant to a permit providing the Board found that the club was a suitable one to conduct such a business.

We have carefully examined the testimony offered before the Board and find that the record adequately supports its factual finding,

“that the appellant at on or about November 28, 1953, did openly and notoriously engage in the sale of beer and intoxicating liquor without being the holder of a permit issued by the Department of Liquor Control authorizing such sale, and further that on the 19th day of December, 1953, certain agents and employees of the appellant, to wit, Stanley Johnson and Howard L. Miller, were convicted in the Police Court of East Cleveland, Ohio, for violating §4301.58 R. C., and further that on the 19th day of December, 1953, one Don Bement, an agent or employee of the appellant, was convicted in the Police Court of East Cleveland, Ohio, for violation of §4399.09 R. C., * *

The question therefore presented is whether or not, based on these facts the Board properly exercised its discretion in rejecting the application.

In the case of Scaravilli, etc., v. Board of Liquor Control, 61 Abs 515, this Court stated at page 516:

“Any conduct upon the part of an applicant for a permit which discloses that, in probability, such applicant would, if licensed, conduct his place so as not to conduce to the health, morals or general welfare of the public is sufficient basis for the refusal of a permit. The Liquor Control Act in our opinion intends to empower the Department to make this determination as to the applicants either for a permit originally or upon renewal.”

Again, in the case of Board of Liquor Control v. Tancer, 62 Abs 360, this Court said:

“Because of the potentialities for harm there can be no doubt of the power of the General Assembly to regulate or prohibit the sale of intoxicating liquors. There is no debatable constitutional question involved in this proceeding. The broad power vested by the General Assembly in the Board of Liquor Control to grant or refuse permits to sell intoxicating liquors authorizes that Board to receive and act upon any facts tending to establish and protect the welfare of the inhabitants of the State, unless the Board is prohibited by law from the consideration thereof. * * *”

In considering the authority of the Board of Liquor Control to determine whether a permit should issue, the Court said in Wallace v. Board of Liquor Control, 64 Abs 477:

“In the administration of the Liquor Control Act the Board of Liquor Control must be given wide discretion in determining facts and in resolving those facts for or against an applicant for a permit.”

Counsel for the Board urges that the acts of misconduct of the applicant as found by it indicate such a disregard for the Liquor Control Act that it would, if licensed, continue the same practice of violation or some other violation of the Liquor Control Act, so as not to be conducive to the health, morals or general welfare of the public. We think the Board could well have arrived at such a conclusion, which is sufficient ground to support its ruling

The trial court based its finding on the premise that the applicant was a reputable organization, citing many instances where it had donated its funds and extended the facilities of its club premises for the general welfare of the public, but a reviewing court cannot weigh the facts but can only consider the entire record in order to determine whether or not the order is supported by reliable, probative and substantial evidence. A reviewing court is empowered under the provisions of §154-73 GC to review the action of the Board, but not to substitute its judgment for that of the Board. Meyer v. Dunifon, Dir., 88 Oh Ap 246. All presumptions favorable to the Board’s ruling must be indulged by the reviewing court and in so doing we arrive at the conclusion that the order of the Board was in accordance with law.

The judgment will be reversed and cause remanded.

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


author: By BARTLETT, J.

text:
    STATE, ex rel. MASON, Petitioner, v. ALVIS et, Respondents.
    Common Pleas Court, Franklin County.
    No. 190646.
    Decided October 2, 1954.

      Russell G. Mason, In Propria Persona.
    Hon. C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By BARTLETT, J.

WRIT OF HABEAS CORPUS DENIED, AND PETITIONER REMANDED TO CUSTODY OF THE WARDEN OF OHIO PENITENTIARY ACCORDING TO LAW.

FACTS

Habeas Corpus hearing. The facts appear to be that petitioner was sentenced to the Ohio Penitentiary on March 6, 1945, to serve a sentence of 10 to 25 years on two counts of armed robbery, later made to run concurrently. Hearing on parole was held in August, 1951, and the Ohio Pardon and Parole Commission continued the matter on its merits to August, 1954.

About May 1st, 1953, the warden and deputy warden preferred charges against the petitioner, to-wit: obtaining money by false pretense in the sum of $75.00, etc.; and petitioner was tried by the Institutional Court of the Ohio Penitentiary, and found guilty. The sentence among other things is that the prisoner should be assessed one year additional time in the institution before parole.

This finding and recommendation was communicated by the Warden to the Pardon and Parole Commission; and at their August meeting this year, the Commission continued a hearing on the petitioner’s parole for two years.

The petitioner claims he is being denied parole, solely because the prison court assessed another year before parole. The fact is, however, the Commission added two years instead of one as recommended.

LAW

Sec. 5145.03 R. C. The Department of Public Welfare is authorized to make such rules and regulations for the government of prisoners as tend to promote their reformation, etc. Sec. 5145.04 R. C. gives the department such control over prisoners as may prevent them from committing crime, etc. Sec. 5145.05 R. C. requires the entry on the prisoner’s register at the penitentiary notes of observed improvement or deterioration of character of the prisoner, “orders or alterations affecting his standing or situation, and subsequent facts of personal history which may be officially brought to the knowledge of the department of public welfare bearing upon the propriety of the release or parole of prisoners.” (Emphasis ours.)

Sec. 2965.31 R. C. provides a person confined in a state penal institution and not eligible to parole before the expiration of a minimum sentence or term of imprisonment, or sentenced thereto under a general sentence, “who has faithfully observed the rules of said institution, is entitled to” certain diminution of his minimum sentence. In the case cf the petitioner, his time off for good behavior would be, “eleven days from each of the months of his minimum sentence,” of ten years; and said section further provides: “at the expiration of the minimum sentence, diminished as provided by this section, each prisoner is eligible for parole.”

But it must be borne in mind that the prisoner is not entitled to this diminution of his minimum sentence for good behavior unless he earns it, that is “faithfully observed the rules of said institution.” The report of the warden to the Pardon and Parole Commission, with a recommendation that the prisoner’s sentence be continued another year before parole, indicates he has not earned the diminution of sentence he claims.

In any event he has not served the minimum sentence provided by law for his offense.

1. * * 11 “Credits allowed for good behavior reduce the time within which a prisoner is eligible for parole, and are not to be deducted from the minimum sentence so as to reduce the term of imprisonment.

“2. The prisoner confined in the Ohio Penitentiary is not entitled to a parole as a matter of right upon the expiration of his minimum term of imprisonment.” Ex Parte Tischler, 127 Oh St 404.

Under §2965.17 R. C. “the pardon and parole commission may determine the time when, the period for which, and the conditions in accordance with which any prisoner confined in a state penal or reformatory institution may be allowed to go upon parole” etc!

The rights of the parolee are based solely on the discretion of the Commission who can grant or refuse a parole for any or no reason. State, ex rel. Allen V. Allerding, etc. et al. Case No. 715, Court of Appeals, Richland County. Appeal therefrom as of right dismissed. 160 Oh St 80.

Therefore, “if a prisoner has not served his maximum sentence and has not been paroled, he must be retained at the Ohio Penitentiary even though he comes within the provisions of §2965.31 R. C. (formerly §2210 GC), as to the allowance of time for good behavior. (It is denied in the instant case, however, that the prisoner is entitled to such credit for good behavior; and the Court rules it is immaterial whether the prisoner be given such credit in the instant case, for in any event he cannot be released from the Ohio Penitentiary without either a parole by the commission or expiration of his maximum sentence of ten years.

The petitioner, having not been paroled and having not served his maximum sentence, under the law, the Writ of Habeas Corpus is denied, and the petitioner is remanded to the custody of the Warden of the Ohio Penitentiary to serve the balance of his sentence as provided by law.

Entry accordingly with exceptions by the petitioner.


author: By THE COURT. By MILLER, PJ.

text:
    STATE, ex rel. CLARK, Plaintiff, v. DEPARTMENT OF MENTAL HYGIENE AND CORRECTION et, Defendants.
    Ohio Appeals, Second District, Franklin County.
    No. 5258.
    Decided March 31, 1955.
    Lyman & Lyman, Webster S. Lyman, Jr., of Counsel, Columbus, for plaintiff.
    Hon. C. William O’Neill, Atty. Geni., Roger B. Turrell, Asst. Atty. Geni., Columbus, for defendants.
   OPINION

By THE COURT.

Submitted on motion of the defendants, State of Ohio, Department of Mental Hygiene and Correction, Division of Correction, Department of Mental Hygiene and Correction and Ohio Pardon and Parole Commission, seeking an order quashing the service of summons for the reason that this Court has no jurisdiction to entertain this action against the State of Ohio or any of above named defendants. The law is well settled that the State of Ohio cannot be sued in its own courts or the Federal Courts without its consent, except in the limited class of cases in which a state may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on that court by the Constitution. 37 O. Jur. 265. It is to be noted that the service of summons was served upon the state departments and the members constituting the department are not party to the action. The departments are branches of the State Government which is sovereign and may not be sued except in such manner as may be provided by law. Article I, Section 6, Constitution of Ohio. Since no provision has been made by our Legislature for making these defendants parties to the action, the motion to quash will be sustained.

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

No. 5258. Decided June 14, 1955.

OPINION

By MILLER, PJ.

This is an original action in mandamus wherein the relator is seeking an order requiring the respondents to restore him to the status of that of a prisoner confined in the Ohio State Reformatory at Mansfield. Ohio, instead of that of an inmate of the Ohio Penitentiary.

The amended petition alleges that the relator was sentenced on January 30, 1953, to the State Reformatory on being convicted of armed robbery; that he was duly committed to said institution, and the director thereof fixed the time of his appearance before the Pardon and Parole Commission as January, 1955; that on March 10, 1953, he was transferred to the Ohio Penitentiary where he is now confined; that the respondents have extended his time for a hearing before the Parole Board to July, 1959.

He alleges further that his sentence to the Reformatory was lawful for the reason that he had never been convicted of a felony and that at the time of sentence he had not attained the age of thirty-one years.

The respondents have filed a demurrer to the amended petition on the ground that it does not state facts sufficient to constitute a cause of action. The relator’s claim is based on §2965.33 R. C., which provides:

“Any prisoner sentenced or committed to a penal or reformatory institution may be transferred therefrom to another such institution but he shall continue to be subject to the same conditions as to term of sentence, diminution of sentence, and parole as if confined in the institution to which he was originally sentenced or committed.”

It is urged that the extension of time for the hearing before the Parole Board was in violation of the cited section. Clearly, the claim of the relator is well made providing the sentence to the Reformatory was in accordance with law. If he could not meet the requirements of the statute permitting a sentence to the Reformatory, then the sentence thereto was not proper. The law which defines who is eligible to commitment to the Reformatory is found in §5143.03 R. C., to wit:

“The superintendent of the reformatory shall receive all male criminals between the ages of sixteen and thirty years sentenced to the reformatory, if they are not known to have been previously sentenced to a state prison. Male persons between the ages of sixteen and twenty-one years convicted of a felony shall be sentenced to the reformatory instead of the penitentiary. Male persons between the ages of twenty-one and thirty years may be sentenced to the reformatory if the Court passing sentence deems them amenable to reformatory methods. No male person convicted of murder in the first or second degree shall be sentenced or transferred to the reformatory.”

Now, does the petition set forth sufficient facts to establish that the relator was eligible for a sentence to the Reformatory? It will be noted that it alleges that at the time of sentence “he had not yet attained the age of thirty-one years.” Under this allegation he could have been over thirty years of age at the time of sentence and if so he was not between the ages of twenty-one and thirty, and therefore not eligible for a sentence to the Reformatory. A person improperly sentenced to the Reformatory is subject to a transfer to the penitentiary under §5143.09 R. C., which provides:

“The department of mental hygiene and correction, with the written consent of the governor, may transfer to the penitentiary a prisoner, who, subsequent to his committal to the reformatory, shall be shown to have been more than thirty years of age at the time of his conviction or to have been previously convicted of crime. The department may transfer an apparently incorrigible prisoner whose presence in the reformatory appears to be seriously detrimental to the well being of the reformatory.”

Since it is alleged that the transfer was made the presumption must follow that it was made regularly in the absence of any showing to the contrary. It is our conclusion that the petition does not allege sufficient facts to establish that the commitment to the Reformatory was in conformance with law. If it was not, he is not entitled to the benefits enumerated under §2965.33 R. C. Mandamus does not lie unless it clearly appears that the relator is entitled to the relief sought.

The demurrer will be sustained.

HORNBECK and WISEMAN, JJ, concur.


text:
    GOTTFRIED, Plaintiff-Appellant, v. YOCUM et, Defendants-Appelllants.
    Ohio Appeals, Third District, Seneca County.
    No. 331.
    Decided April 2, 1953.
    Roof & Roof, Kenton, Prick & Turner, Tiffin, for plaintiff-appellant.
    Francis M. Marley, Fostoria, for defendants-appellees.
   OPINION

Per CURIAM:

This is an appeal upon questions of law from a judgment of the Court of Common Pleas of Seneca County, Ohio, in an action wherein the appellant, Jessie Gottfried, was plaintiff, and the appellees, Simon P. Yocum, et al., were defendants.

The action was one to contest the will of one Walter Yocum, late of Seneca County, Ohio, deceased.

After the defendants had introduced testimony showing the admission to probate by the Probate Court of Seneca County, of the will of said Walter Yocum, and had rested, the plaintiff introduced the testimony of various witnesses which the plaintiff relied upon as tending to prove that the said Walter Yocum at the time he executed said will did not have sufficient mental capacity to execute the same.

At the close of this evidence the defendants, other than Walter Rose, a minor defendant, moved the court for a directed verdict in favor of the defendants upon the ground that the plaintiff had failed to introduce any evidence tending to prove that the said Walter Yocum was mentally incapacitated at the time he executed said will. This motion was granted by the court and the court directed a verdict accordingly. Judgment was duly rendered upon said verdict in favor of the defendants and against the plaintiff. This is the judgment from which this appeal was taken.

The plaintiff-appellant assigns error in a number of particulars which may be summarized as follows:

1. The court below erred in excluding certain testimony offered by the plaintiff below and excepted to by the defendants below.

2. The court below erred in granting defendants’ motion and directing a verdict in favor of defendants for the reason that the evidence in the case was such as to require the submission of the case to the jury.

These assignments will be considered in the order mentioned.

1. The testimony referred to in the first assignment of error is certain testimony of one Bertha Leffingwell which was rejected by the court and certain testimony of the said Bertha Leffingwell proferred by the plaintiff and rejected by the court as to the mental condition of the said Walter Yocum in 1944, the said Walter Yocum first coming under the observation of the witness in 1943 and/or 1944 and subsequent to July 31, 1943.

The said Walter Yocum executed the will which is the subject of this contest, on the 31st day of March, 1943.

There was no evidence tending to prove that the mental condition of said Walter Yocum, during the year 1944, was in any way attributable or referable to or in any way connected with his mental condition at the time of the execution of his will, and the testimony given and proffered as to his mental condition during 1944 did not in any way reflect upon or tend to prove his mental condition at the time of the execution of his will on March 31, 1943, and was properly rejected by the court.

The plaintiff-appellant further contends that the court erred in rejecting the proffered testimony of one Betty Rose Patterson, but an inspection of the record discloses that while plaintiff’s attorneys stated to the court that the testimony of said Betty Rose Patterson would corroborate the testimony of Bertha Lefifingwell, said Betty Rose Patterson was not called as a witness nor any tender or proffer made of her testimony.

For the reasons mentioned, the first assignment of error is without merit.

2. In considering this assignment of error this Court will take judicial notice of the following facts: This cause was tried in the Common Pleas Court of Seneca County in January, 1949, and a judgment rendered by said court in favor of defendants. An appeal on questions of law was taken to this court by the plaintiff-appellant and the judgment of the Common Pleas Court was affirmed by this court. Subsequently, an appeal was taken from the judgment of this court to the Supreme Court of Ohio which reversed the judgment of this court and remanded the cause to the Common Pleas Court for a new trial and further proceedings according to law, and that the judgment from which this appeal was taken was rendered upon the new trial of said cause ordered by the Supreme Court. The cause was submitted to the Supreme Court upon the original papers in the case and the bill of exceptions of the proceedings had upon the trial of the cause in Common Pleas Court in January, 1949.

The opinion in said cause in the Supreme Court, appearing in 155 Oh St 283, discloses that the court in considering the case, among other things expressly held that the evidence appearing in the record of said cause was sufficient to require the submission of said cause to the jury.

In connection with this appeal the bill of exceptions of the former trial of this cause in Common Pleas Court in January, 1949, has been filed in this court.

A comparison of the bill of exceptions of the former trial and the bill of exceptions of the trial from which this appeal was taken discloses that the evidence as to the testamentary capacity of the testator, Walter Yocum, is for the purpose of considering this second assignment of error, essentially the same.

The rule applicable to this situation is stated in 2 O. Jur., 1668, Appellate Review, Section 887, as follows:

“That the decision of a reviewing court in a case establishes the law of that case for all subsequent proceedings therein not only in the trial court but also on subsequent proceedings in the reviewing court, seems always to have been recognized as a general rule of practice in Ohio.”

Considering this assignment of error in the light of the above quoted rule, it is obvious that as the Supreme Court held that the evidence at the former trial of this cause relating to the subject of the mental capacity of the testator, which is substantially the same as the evidence upon the subject upon the trial of the case under consideration upon this appeal, was sufficient to require the submission of the cause to the jury and thereby established the law of the case, the trial court erred to the prejudice of plaintiff in directing a verdict in favor of defendants and entering judgment thereon.

For this error the judgment is reversed and the cause remanded for further proceedings according to law.

YOUNGER, PJ, GUERNSEY and MIDDLETON, JJ, concur.


text:
    PAGE, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5101.
    Decided November 4, 1954.
    Robert C. Farmer, Columbus, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellants.
    (MONTGOMERY, PJ, of the Fifth District, NICHOLS and GRIFFITH, JJ, of the Seventh District, sitting by designation.)
   OPINION

By THE COURT.

We are not concerned here with the question of abuse of discretion or arbitrary action of the Board of Liquor Control in so far as the qualifications for fitness of the appellee to hold a permit. Our problem is the construction of three Regulations of the Board of Liquor Control, to wit: Regulation No. 11, Regulation No. 12, and Regulation No. 65. Regulation No. 11, in part, provides:

“* * * applications shall then be processed in the order in which same were filed and pending by the department until the quota is again filled.”

Regulation No. 12, in part, provides:

“All applications for all classes of permits shall be processed and either approved or rejected within forty-five (45) days from the date of filing, and notice of such action shall be sent to the applicant within said period of time. Failure of the Department to do so within said period of time shall be deemed a rejection of such applications and may be the basis of an appeal to the Board.”

Regulation 65, Section II provides:

“When the Director refuses to issue, renew or transfer any permit he shall, by registered mail, return receipt requested, send to the person so refused, notice of such order at the address stated in such person’s application and a copy of such notice to the attorney of record of the applicant. The notice shall set forth the reasons for his action, refer to the law or rule directly involved, and state that the party will be afforded a hearing by the Board if requested within thirty days from the time of mailing the notice. * *

These regulations must be construed together since they each pertain to the same subject matter, to wit, applications for permits. Regulation No. 11 does not invalidate or destroy the specific mandate in Regulation No. 12, which requires “all applications for all classes of permits shall be processed and either approved or rejected within forty-five days from the date of filing, and notice of such action shall be sent to the applicant within said period of time. Failure of the Department to do so within said period of time shall be deemed a rejection of such applications and may be the basis of an appeal to the Board.” These words are plain, understandable and mandatory in character. We hold that only valid applications, not previously rejected by the action of the Department or by operation of law shall be processed in the order of filing; that the provisions of Regulation No. 12 are automatic in operation and that the applications previously on file have been rejected by operation of law and that the appellee having the only application in good standing should receive a Class D-5 permit within the provisions of Regulation 64 in so far as there now is an opening.

The judgment of the trial court is affirmed.

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


author: By THE COURT:

text:
    CULLERS, Plaintiff-Appellee, v. CULLERS, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 478.
    Decided October 28, 1953.
    Leo H. Faust, Troy, for plaintiff-appellee.
    Spidel, Staley & Hole, Greenville, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court of Miami County granting to the plaintiff a divorce, custody of children, and alimony.

Defendant-appellant has assigned ten separate alleged errors, which he has resolved for purpose of discussion under three propositions: The Court erred in refusing to dismiss plaintiff’s petition for lack of sufficient evidence: that the judgment is contrary to law and the facts; and that the court was guilty of an abuse of discretion.

The evidence was in conflict. It has the duty of the trial court to weigh the evidence and judge as to the credibility of the witnesses. On the weight of the evidence the trial court resolved the issues in favor of plaintiff. There is ample evidence to support the judgment. We find sufficient corroboration of plaintiff’s testimony. We do not find the judgment to be contrary to law, or against the manifest weight of the evidence.

The court awarded to the plaintiff as alimony the household goods of the value of $1,000.00, and $750.00 cash. The defendant was awarded his personal tools and effects, and a 1950 Chevrolet automobile of the value of $1,000.00. Defendant-appellant claims that an award of $750.00 cash money to plaintiff as alimony was contrary to law and an abuse of discretion, for the reason that the record does not show that the defendant possessed funds out of which the award can be paid. The evidence shows that plaintiff was gainfully employed, and his annual earnings amounted to approximately $4,800.00. Under the facts in this cáse the award of $750.00 in money to the wife as alimony is just and equitable and there was no gross abuse of discretion. §8003-17 GC in part provides:

“The court may allow such alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree. Such alimony may be allowed in real or personal property, or both, or by decreeing either such sum of money payable in gross or by installments, as the court deems equitable.” (Emphasis ours.)

Under the provisions of this section the court was authorized to award in gross as alimony $750.00 in money to the plaintiff. Such award was not contrary to law. See Hill v. Hill, 65 Abs 572.

We find that the trial court by entry overruled the motion for new trial. The contempt charge. filed against the defendant to test the question whether defendant has disposed of any household goods awarded the plaintiff, which contempt charge is still pending, does not affect this appeal.

We find no error assigned well made.

Judgment affirmed.

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


text:
    TORSELL et, Plaintiffs-Appellees, v. BOWERS, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 512.
    Decided October 30, 1954.
    John Henderson, Springfield, for plaintiffs-appellees.
    Don E. Koepp, William J. Stoll, Springfield, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court of Clark County.

Plaintiff brought an action for damages for a breach of a contract of purchase of real property. The defendant pleaded plaintiff’s inability to convey, free of encumbrances, as the contract provided. The reply was a general denial.

At the close of all of the evidence the court directed a verdict for the plaintiff. The action of the court in directing the verdict is the sole assignment of error.

This matter is presented to the Court without a bill of exceptions. Appellant contends that the error is shown in the transcript of the pleadings and judgment entry. In the pleadings an issue of fact is made on the question of easement. The judgment entry is general and not specific. A bill would be required to exemplify the error of which appellant complains.

In Vol. 3, O. Jur. 2d, page 348, Section 442, it is stated:

“Inasmuch as it has been generally held that an appellate court will not reverse a judgment of the trial court for error in directing or refusing to direct a verdict for either party unless it affirmatively appears from the bill of exceptions that it contains all of the evidence offered in the trial court, the statement seems justified that a reviewing court will not ordinarily consider alleged error in directing or refusing to direct a verdict unless all of the evidence offered in the trial court is in the bill of exceptions.”

See also Vol. 3, O. Jur. 2d, pages 314, 323, Sections 406, 416, and §2321.05 R. C.

The judgment will be affirmed.

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