author: By HORNBECK, PJ.

text:
    JACKSON, Admrx., Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILWAY COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4411.
    Decided February 15, 1951.

      Vorys, Sater, Seymour & Pease, Richard Sater, Byron Ford, of Counsel, Columbus, for appellee.
    Wilson & Rector, Richard Rector, of Counsel, Columbus, for appellant.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of the plaintiff for $1875.00 with costs. The action for wrongful death of plaintiff’s decedent was originally instituted against the defendant railway company and H. L. Young. Upon motion of the defendant, the plaintiff was required to elect, and elected to proceed against the defendant railway company.

The claim of the plaintiff was that on April 9, 1946, H. L. Young, an employee of the defendant corporation, acting within the scope of his employment, intentionally, maliciously and unlawful assaulted and shot plaintiff’s decedent resulting in his death. The answer of the defendant, with the exception of the admissions of the qualification of plaintiff’s administratrix, the corporate capacity of the defendant and that H. L. Young was employed by it as a railway detective, was a general denial.

The facts necessary to an appreciation of our question are that on the night of April 9, 1946, a passenger train of defendant company stopped at its “station in Fostoria, Ohio. While the train was standing, plaintiff’s decedent and a companion by the name of Baker knocked on the door of a Pullman car on the side opposite the station. They wore socks on their hands to serve, Baker says, the purpose of mittens. A Pullman porter hearing the rap on the door opened it and the two young men boarded the ear. They requested a place to hide in the dining car which was refused and thereupon moved into a Pullman car, entered the ladies’ toilet and locked the door from within. Requests were made of the young men to come out of the closet which they refused. When the train was about to stop at Upper Sandusky, Jackson jumped out of a window of the toilet in the ladies’ room. Baker unlocked the toilet door, ran through the Pullman car and left the train. The next station after Upper Sandusky at which the train stopped was Marion, Ohio. Awaiting the arrival of the train at Marion were officers Young and McBee, special policemen commissioned by the Governor of Ohio and employees of the railway company. Riding on the train was a special agent of the company by the name of Goodman who was the superior officer of Young and McBee. He and the conductor left the train and conferred with officers Young and McBee and related to them the full details of the acts of Jackson and Baker on the train. After the conference, the officers immediately left Marion and drove toward Upper Sandusky. When nearing Upper Sandusky they saw two men who proved to be Jackson and Baker and after driving past them, turned around, trained their headlights on them and stopped. Young, upon alighting, had with him a flashlight and a revolver. He approached the men, ordered them to stop, put up their hands and stated further, “We are police officers.” Baker complied with the order. The testimony varies as to the actions of Jackson. Officer Young says that he continued to walk and that upon the second order did not stop but whirled in the road and put his hand back toward his hip pocket. Baker testifies that following the second order Jackson put up his left hand and almost immediately thereafter and before he could put up his right hand officer Young shot him and killed him. Neither young man was armed. Baker was taken to a jail in Upper Sandusky and the next day a charge of trespassing was placed against him. The evidence developed that both Jackson and Baker had Court records and at the time of the shooting Jackson was on parole from Mansfield. These facts were unknown to the officers and were ■ admitted only as related to damages. It appeared that the young men had been to Flint, Michigan, secured a job there and at the time of the occurrences on the train, were returning home for the purpose of securing clothing and money. When they left Columbus, Baker had no money and Jackson had but $15 which he borrowed, from his mother. There was evidence to the effect that Jackson was employed when he left for Michigan and had regularly made contributions to his mother from his earnings, although the amount thereof was not fixed.

At the conclusion of plaintiff’s case, defendant moved for a directed verdict which was overruled. Thereupon the cause was submitted to the jury upon the case as made by the plaintiff. Verdict was returned for the plaintiff and judgment entered upon the verdict, after the overruling of a motion for judgment notwithstanding the verdict. Motion for new trial was also filed and overruled.

Four errors are assigned:

(1) Error on the part of the Court in overruling defendant’s motion for a directed verdict.

(2) Error in overruling defendant’s motion for judgment notwithstanding the verdict.

(3) Error by the Court in refusing to give defendant’s special charge that the acts of Jackson and Baker on the train of the defendant company constituted a felony and error by the Court in charging that any offense committed by Jackson and Baker on the train was a misdemeanor only and that special officer Young had no legal right to arrest them without a warrant.

(4) The verdict was not sustained by sufficient evidence, contrary to the evidence and the law.

The third assignment of error is so related to the other assignments that we first consider the two parts thereof, (a), (b). It is urged that the Court erred in refusing to charge that the acts of the young men in the ladies’ room of the Pullman car of the defendant company in the handling of the lock on the door of the room constituted a felony as provided in §12560 GC. Appellee contends that this section has no application whatever, for two reasons, the first of which is that its subject matter does not apply to a lock on the inside door of a passenger coach. The second is that if it applies to such a lock, the young men committed no offense in what they did respecting the lock. If the statute is applicable the following language is pertinent:

“Whoever, without proper authority * * * disarranges or destroys a lock ***ona*** car, * * * or other property of such railroad, * * * shall be * * * imprisoned in the county jail not less than thirty days or in the penitentiary not more than ten years.”

According to the testimony, one of the young men either held the lock from the inside so that it could not be unlocked or locked it from the inside. Did either act constitute a disarranging or destruction of the lock? We think not Certainly, it was not destroyed. Nor was it disarranged. There is no evidence to the effect that at any time was the lock so handled that it would not perform the purpose for which it was made but for the application temporarily of outside force upon it. No part of the lock was broken nor its position changed. It was not thrown out of order. The lock at all times was in condition to function normally. What was done respecting it was not a disarrangement. The young men committed no felony and the trial judge was correct in refusing to so charge. It follows that the Court was also correct in charging that the act committed by the young men, trespassing, was a misdemeanor and that the special officers had no legal right to arrest them without a warrant.

The disposition which we make of the third assignment of error is largely determinative of the first and second assignments. Counsel both rely on the case of New York, Chicago & St. Louis Railroad Company v. Fieback, 87 Oh St 254, the appellant upon both syllabi and the appellee on the second syllabus particularly. We are of the opinion that the second syllabus affords support for the action of the trial judge in submitting the case to the jury upon the testimony on behalf of the plaintiff. It is insisted that the testimony of the plaintiff did not afford sufficient proof to carry the case to the jury upon the issue of the authority of officer Young from the company to make the arrest of Jackson. The special policeman, duly commissioned, had such powers to make an arrest as were delegated to him by the applicable provisions of the Code. The Fieback case holds that,

“A railroad company is not liable for the wrongful acts of such officer while acting by virtue of his office, unless such wrongful acts occurred in the performance of an act which was outside of the public duties of a policeman, and which was authorized or ratified by such company.”

The trial judge charged that the acts of the officer will be presumed to have been done as a public officer pursuant to authority derived from his appointment, until that presumption is overcome by sufficient evidence. The jury having-found, as it must have found, that the attempted arrest was made without a warrant for an offense which was a misdemeanor, the performance of that act was outside of the public duties of a policeman. There was then left the further question whether or not the arrest was authorized by the defendant company. This is the only question of substance in this record.

Without restating the conversation of Young and his fellow policemen with the conductor and the special agent of defendant company, Young’s superior officer, on the platform at Marion, we are satisfied to say that Judge Leach was correct in holding that under all the circumstances appearing there was a factual question for the jury whether or not the acts of Young at the time of the attempted arrest were authorized by an agent of the defendant company and, if so, whether or not the acts were unlawful and wrongful. Certainly, the authority from Young’s superior officer was not by direct language and must be found, if at all, from the implication to be drawn from what was said at the time that the officers met on the platform at the station at Marion. We believe that the authorization to make the arrest may be implied.

The first and second assignments of error are not well made.

The fourth assignment of error goes to the weight of the evidence as well as its sufficiency and upon this claim there is, in view of our holding, but one question left, viz., whether the evidence supported a money judgment in any sum or to the amount of the verdict. The testimony of the mother of plaintiff’s decedent was to the effect that he was employed as a janitor prior to the time that he went to Flint, Michigan, from where he was returning when he was shot; that every week he contributed to her support. The amount of his earnings or the amount of his contributions were not stated. In Minglewood Coal & Ice Co. v. Carson, 31 Oh Ap 237, it is held that,

“The law giving the right to recover damages for unlawful death, not providing any rule to determine the amount of damages recoverable, except that ‘the jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death,’ the jury may use their own experience in the conduct of human affairs in arriving at the amount of their verdict based upon the facts established.”

In the recent case of Immel, Admr. v. Richards, 154 Oh St 52, an appeal from this Court, 56 Abs 132, the Supreme Court affirmed a judgment for the plaintiff for $5000.00 for the wrongful death of a nine months of age child. It was beyond the power of the plaintiff to show what, if any earning capacity the child would have or to what extent it would provide pecuniary assistance to its next of kin. In such cases, and in this case, there is nothing very definite upon which to predicate a verdict and a jury must draw upon its common experience of the probable money assistance which was taken from decedent’s next of kin by reason of his death in the light of all the facts presented. The jury in this case did not evaluate the pecuniary loss to plaintiff’s decedent’s next of kin very highly, probably about a dollar a week, because he was a young man, presumably, in good health, and with a long expectancy of life.

In a case such as this where the conduct of plaintiff’s decedent leading up to the attempted arrest was clearly wrongful and aggravating in the extreme, there might be a tendency to say that his next of kin should not be protected by reason of his demise. On the other hand, one unlawful act does not justify the commission of another.

Upon the conclusions which the jury had the right to draw from the facts in this case the shooting of plaintiff’s decedent was inexcusable, unlawful and willful. We find no error in the trial of the cause in any of the errors assigned which would require its reversal.' The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By PHILLIPS, PJ.

license: Public Domain

text:
    ADENA LODGE KNIGHTS OF PYTHIAS NO. 763, Plaintiff-Appellee, v. JOHNSON, Defendant-Appellant.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1032.
    Decided June 3, 1950.
    Ralph Levinson, Brenner Levinson, Steubenville, for plaintiff-appellee.
    Van Tilburg & McCann, Steubenville, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiff-appellee and defendant-appellant will be called plaintiff and defendant respectively.

Plaintiff sued defendant in the court of common pleas to reform a deed executed by defendant on November 8, 1918, which was duly recorded in the record of deeds of Jefferson County. By that deed defendant conveyed to plaintiff, a fraternal organization, the land described therein, which is the land upon which plaintiff’s building is situated, which was the basis of the controversy between the parties in the court of common pleas.

The trial judge found for the plaintiff, ordered the deed reformed in accordance with a new survey made by plaintiff’s engineer, and entered judgment accordingly.

Defendant appealed from that judgment to this court on questions of law and fact, but filed no bond.

Plaintiff’s motion to dismiss defendant’s appeal on that ground was sustained, the words “and fact” were stricken from defendant’s notice of appeal, and it appearing that a bill of exceptions was duly filed the appeal was retained, argued, submitted, and will be determined as one on questions of law.

Since conveyance to it plaintiff has occupied continuously the land conveyed to it on November 8, 1918, and defendant resided on an adjoining parcel of land during all, or a portion of, that time. In 1948 defendant built a fence between the respective properties of the parties, which encroached upon the land which the evidence discloses defendant clearly intended to convey to plaintiff by the deed of November 8, 1918.

The description in the deed of November 8, 1918, did not close by 1.56 feet on the northerly and southerly boundary of the land deeded, and 2.96 feet on the easterly and westerly boundary thereof, although it is clear from the evidence that the parties intended that it should. Admittedly there was a mistake in the description contained in that deed in that the beginning point in the description contained in the deed of November 8, 1918, was referred to as the southeast corner of the Clark property, when clearly the southwest corner thereof was intended. It is equally clear that defendant intended to convey to plaintiff the land upon which its building is situated.

Defendant contends that the trial judge based his finding upon inadmissible evidence, and therefore his finding “is not sustained by any admissible evidence”; that the testimony of plaintiff’s engineer was not properly admissible in evidence until by actual survey he had found some “lawfully established monument or line,” which his evidence discloses he had not found; that the admission of the testimony and evidence offered by such witness “was particularly erroneous and vicious” because the street on which plaintiff’s property abuts had never been platted, and the admission of such testimony and evidence “throws in jeopardy every property owner” on the side of the street on which plaintiff’s property abuts.

The burden was upon plaintiff, who sought reformation of its deed on the ground of mutual mistake, to establish such mistake by clear and convincing evidence, which burden, as the result of reading the bill of exceptions submitted to us for review, we believe it carried.

Next defendant contends that the judgment of the trial court entered upon his finding was contrary to law because he attempted to make an agreement between the parties.

Counsel for defendant contend that there is no admissible evidence supporting the finding of the trial judge of the existence of mutual mistake, which he had to find before he could order a reformation.

“To reform a contract and enforce it in its new shape calls for a much greater exercise of the power of a chancellor than simply to set the transaction aside. Reformation is a much more delicate remedy than rescission. Hence, in order to justify a decree for a reformation in cases of pure mistake it is necessary that the mistake should have been mutual Stewart v. Gordon, 60 Oh St 170, 53 N. E. 797, quoting from Bispham on Equity, Sec. 469.” 35 O. Jur., Section 30, Page 173.

The evidence reveals mutual mistake to us warranting the trial court making the finding and entering the judgment he did.

In his well considered opinion the trial judge reviewed all of the facts, upon which we, like he, base our conclusion, ami supported his finding and judgment by ample authority. The parties and their counsel are familiar with such facts, to which they are referred respectfully, and no useful purpose would be served in restating them in this opinion.

Obviously we conclude that the trial judge did not err to defendant’s prejudice in either of the respects he charoe-i

The judgment of the court of common pleas is affirmed

NICHOLS, J, GRIFFITH, J, concurs in judgment


author: By THE COURT. By THE COURT.

text:
    ARMENTROUT et, Plaintiffs-Appellees, v. STERLING, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4460, 4461.
    Decided July 6, 1950.
    Ashbaugh, Elliott & Smith, Ralph G. Smith, Wright, Harlor, Purpus, Morris & Arnold, H. B. Arnold, Jr., of Counsel, Columbus, for plaintiffs-appellees.
    Jos. E. Bowman, Charles Saunders, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted upon motion by the plaintiffs-appellees seeking an order striking from the files the bill of exceptions filed herein for the reason that the same was not filed in the trial court within forty days after the overruling of the motion for a new trial as required by §11564 GC.

The record discloses that forty-three days elapsed between the time of the overruling of the motion for new trial and the filing of the bill of exceptions. The provisions of this section of the Code are mandatory. Department of Liquor Control v. Alessandro, 56 Abs 554; Teegarden v. Teegarden, 80 Oh Ap 79.

We note the comment of counsel for the appellant concerning Rule VII of this court. We think in all probability this rule should be clarified and the same will be referred to the judges of the Courts of Appeals for reconsideration at their next annual session.

The motion to strike will be sustained.

MILLER, PJ, and WISEMAN, J, concur.

HORNBECK, J, not participating.

ON MOTION SEEKING AN ORDER AFFIRMING JUDGMENT

Nos. 4460, 4461. Decided November 3, 1950.

By THE COURT.

Submitted on motion by the plaintiffs-appellees, seeking an order affirming the judgment for the reason that there is no record to support the assignment of errors, the biil of exceptions having been ordered stricken from the files by the Court on July 6, 1950.

The motion will be sustained.

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


author: By CONN, PJ.:

text:
    HANKIN, Plaintiff-Appellant, v. THE MAY COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21897.
    Decided December 11, 1950.

      Bart T. McIntyre, Cleveland, for plaintiff-appellant.
    McKeehan, Merrick, Arter & Stewart, Clinton N. Horn, Cleveland, for defendant-appellee.
    (CONN, PJ, FESS, J, CARPENTER, J, of the 6th District sitting by designation in 8th District.)
   OPINION

By CONN, PJ.:

This action is begun in the Common Pleas Court by plaintiff to recover damages against defendant for malicious prosecution of a prior civil action wherein judgment was entered on a cognovit note executed by plaintiff, but which had been previously paid. Thereafter, proceedings in aid of execution on the judgment were begun, directed against plaintiff’s employer and her wages were attached.

Defendant in its answer admitted that the note had been paid in full when judgment was taken thereon and further alleged that some months after the note had been paid plaintiff had opened a charge account with defendant; that there was a balance due thereon and that the attorney for defendant inadvertently brought suit on the note, believing that the amount claimed to be due defendant was based on the note.

On the trial plaintiff testified that a charge account with defendant was originally opened in 1942 in the name of her husband H. L. Hankin. As part of plaintiff’s cross-examination defendant had identified and introduced an itemized statement of merchandise sold to plaintiff on which there appeared a balance due defendant of $86.23. Several sales slips of these purchases were also introduced in evidence by defendant which showed items charged to H. L. Hankin; Mr. and Mrs. H. L. Hankin and Mrs. H. L. (Horace L.) Hankin.

Plaintiff also testified that her husband paid the bills by check on the first of each month; that in 1945 defendant brought an action against plaintiff in the Municipal Court for an alleged balance due in the amount of $86.23 and at that time she and her husband were separated and she had brought suit for divorce.

Plaintiff introduced in evidence a photostatic copy of said proceedings and it appears that plaintiff filed answer in that case denying she owed the defendant on the alleged account and that subsequently an amended petition was filed making Horace L. Hankin a party defendant. Later in the same year this case was dismissed at the costs of the plaintiff therein.

The photostatic copy of the proceedings in the suit on the note was also introduced in evidence by plaintiff from which it appears that the petition was verified by Harold G. Burn-ham as attorney for the plaintiff in that action and that said Burnham was also the attorney for the plaintiff and verified the petition and amended petition in the action on the account, this action being later dismissed as above stated.

Plaintiff also testified that when she brought to the attention of the defendant that the note sued on had been paid, defendant promptly thereafter caused her wages to be released and the suit dismissed. It further appears in the evidence that the plaintiff was discharged some two months after her wages were attached.

At the conclusion of plaintiff’s case, the trial court granted defendant’s motion to withdraw the evidence from the jury and entered judgment for defendant from which judgment this appeal was taken and this action of the trial court has been assigned as error.

In Ohio numerous cases recognize the rule that where a motion is made for a non-suit or a verdict directed at the close of plaintiff’s case, the trial court must assume the truth of the evidence offered and construe this evidence most strongly in favor of plaintiff, giving the plaintiff’s case the help afforded by any reasonable inferences arising from the evidence. 39 O. Jur. 802, Sec. 183 and cases cited.

Applying the above rule to the instant case, it is pertinent to inquire if there was lacking credible evidence to support any essential element necessary when plaintiff rested her case, keeping in mind the admission of defendant that the note sued on had been discharged by payment.

Defendant contends that the “three necessary elements” required under the law of Ohio, to-wit malice, want of probable cause and damage are all absent. However, where the alleged wrong grows out of a prior civil action the rule in Ohio imposes on plaintiff the duty also of showing some wrongful interference with his property as a necessary element, such as by attachment, injunction or otherwise. 25 O. Jur. 874, Sec. 8; Newark Coal Co. v. Upson, 40 Oh St 17; Cincinnati Daily Tribune Co. v. Bruck, 61 Oh St 489.

By virtue of defendant’s admission and the evidence it is clear that the proceedings in aid and the attachment of plaintiff’s wages were wrongful. Is there credible evidence tending to show the remaining three elements?

The trial court upon consideration of defendant’s motion had before it plaintiff’s evidence and all reasonable inferences arising which tended to show that the defendant, through its agents and attorneys, knew that the note was paid when the court was asked to enter judgment against plaintiff and issue execution thereon. The attachment proceedings being wrongful, the element of want of probable cause was for the jury under the circumstances disclosed by the evidence. Since malice may be inferred from want of probable cause, the existence of malice, express or implied, was also an issue to be determined by the jury. 25 O'. Jur. 890, Sec. 20.

On the element of damage, the evidence tends to show that plaintiff sustained some damage. At least she lost one day’s time following the wrongful attachment. The amount of damage was also an issue for the jury.

It is our conclusion that the trial court erred in taking this case from the jury and that its judgment for the defendant should be reversed and a new trial granted. Exc O. S. J.

FESS, J, CARPENTER, J, concur.


author: By MILLER, PJ:

text:
    RUFFI, Plaintiff-Appellant, v. AMERICAN FLY AWAY SERVICE, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2113.
    Decided December 15, 1950.

      Vradelis, McCray & McCray, Dayton, for plaintiff-appellant.
    Pickrel, Schaeffer & Ebeling, Dayton, for defendant-appellee.
   OPINION

By MILLER, PJ:

This is a law appeal from the judgment of the Court of Common Pleas denying the plaintiff-appellant the right to participate in the Workmen’s Compensation Fund. At the close of all of the evidence the defendant moved for an instructed verdict for the defendant for the following reasons:

1. The plaintiff’s decedent was not an employee as defined in the Workmen’s Compensation Act.

2. The plaintiff’s decedent was not killed in the course of his employment, if he was an employee.

The court sustained the motion on each of the grounds set forth and a judgment was rendered on the verdict. The appellant urges that the record presented issues of fact which should have been submitted to the jury for its determination.

The record discloses that the defendant, The American Fly Away Service, Inc., was engaged in the business of ferrying small airplanes from the place of manufacture to various places of distribution and sale located throughout the United States on the date on which the plaintiff’s decedent was killed; that the defendant’s business had been in operation for several years; that it was quite extensive, at times having as many as fifty pilots engaged in this service. The decedent was one of the pilots and at the time of his death was making delivery of an airplane for the defendant.

The record discloses that on June 5, 1946, the plaintiff’s decedent and the defendant entered into a written agreement containing the following provisions pertinent to the issues here presented: The parties to the contract will be referred to as “pilot” and “defendant.”

Item 1. The pilot agreed to fly new or used aircraft to various locations throughout the United States.

2. Pilot to be paid compensation in advance.

3. * * *

4. All expenses incurred by the pilot as the result of delays to be borne by the pilot unless it exceeded two days through no fault of his own, in which event the expenses beyond the two days would be paid by the defendant.

5. Pilot shall pay all of his traveling expenses and shall have exclusive right to determine the mode of his transportation, routes, etc.

6. The pilot was to be the sole judge of the route to fly and under what weather conditions he would fly, but it was specifically agreed that the pilot would abide by the rules and regulations prescribed by competent authorities; that all methods and means of delivery shall be determined by the pilot who was to be responsible to the defendant for the results.

7. The pilot was to furnish all necessary equipment such as navigation maps, charts, etc.

8. The pilot agreed to operate each and every aircraft in accordance with the manufacturer’s recommendation.

9. The pilot agreed to furnish all gas and oil necessary to be used and to be responsible for having the aircraft properly tied down or hangared at night and to bear all necessary expenses for this.

10. If grounded for any reason the pilot agreed to remain with the aircraft at his own expense until a representative of the defendant arrived. In case that he stopped over night the pilot agreed to wire his location and his expected future itinerary to the defendant at his own expense.

11. The pilot was not compelled to accept any aircraft offered to him, having the right to refuse the same without stating the cause.

12. The pilot agreed to incur no expense on the defendant without advance authorization.

20 * * *

24 * * *

15. The pilot reserved the right to work when he pleased and to engage in other occupations of his choice, such as flight instruction, etc.

20 ■* H- *

17. The pilot agreed that when he accepted an aircraft for delivery he would do so as soon as possible and that he would not at any time or under any circumstances use the aircraft for any purpose whatsoever not absolutely necessary for the delivery of said aircraft.

18. The pilot agreed to be responsible for his own acts, being an independent contractor, and would not be protected under the policy of insurance carried by the defendant.

19. The pilot agreed to reimburse the defendant for damage to any aircraft in amounts not covered by the defendant’s policies of insurance.

2Q * * *

21. The pilot agreed not to carry passengers at any time except when requested to do so by the defendant and when so requested he was to be paid additional compensation.

22. * * *

23. * * *

The record discloses further than on July 23, 1946, the date of the fatal accident, the plaintiff’s decedent piloted an airplane from Middletown, Ohio, to Washington, D. C., under the said contract. At approximately 3:30 P.- M. the same day he was assigned another airplane to fly from Washington, D. C., to Chicago, Illinois. While flying near Deep Creek Lake, Maryland, he swerved approximately half a mile off of his course in order to fly low or buzz a Ashing boat on the lake. His plane was the lead plane followed by two others. He signalled them to buzz the fishing boat with him, which they did. However, the decedent decided to return and buzz the boat again, which he did, but this time he went too low and struck a cable, which caused him to lose control of his airplane, resulting in his death.

The evidence discloses that upon the delivery of an airplane the decedent was directed to pick up a release and receipt which released the defendant from liability and he was also directed by defendant to pick up payment for the delivery charge, which was to be returned to the defendant.

The evidence offered was sufficient to make the defendant amenable to the act provided the deceased was an employee acting within the scope of his employment. The compensation law does not apply where the injured person is an independent contractor and the relation of employer and employee does not exist. Industrial Commission v. McAdow, 126 Oh St 198. Whether one is an independent contractor or an employee depends upon the facts of each case.

In Gillum v. Industrial Commission, 141 Oh St 373, syllabus 2 in part provides:

«* * * Tlie principai test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.”

It is our conclusion that there was no evidence presented to show that the defendant herein reserved the right to control the manner or means.of doing the work herein; that all the evidence cleariy showed that the pilot was to be responsible to the employer only for the result and that therefore an independent contractor relationship existed.

We shall next consider the question whether or not the plaintiff’s decedent, if he were an employee, was acting within the scope of his employment at the time he met his untimely death. The appellant urges that the hazard of monotony while flying an airplane is a hazard that has a causal relationship or connection with the accident. We concede that monotony may be such a hazard, and injuries resulting therefrom would be compensable, but here we have a difieren! situation. The plaintiff’s decedent deliberately departed from his course and dove his plane down to the lake, not only on one occasion, but a second time, which resulted in his death.

We think that this was clearly a departure from the scope of employment. In order to be compensable the injury must have been received while the employee was engaged in the promotion of the employer’s business and in the furtherance of his affairs. Industrial Commission of Ohio v. Bateman, 126 Oh St 279. Georgejakakis v. Wheeling Steel Corporation, 151 Oh St 458. The appellant cites the cause of Laudato v. Hunkin-Conkey Construction Company, 135 Oh St 127, but we think this case is distinguishable on the facts from the case at bar. In the cited case the employee’s duties required him to ascend to an upper floor and then to descend to the ground floor in the performance of his duties of unloading certain debris for his employer. While performing such duties he was injured. In the case at bar the plaintiff’s decedent was not under contract or required to descend from a high altitude to a low altitude in order to see how close he could come to a fishing boat on the surface of the lake. He was under contract to fly a plane on as direct a route as possible and at an altitude commensurate with terrain and weather conditions, and there is nothing in the record to indicate that these conditions caused him to descend in the manner which he did. We think the court ruled properly in sustaining the defendant’s motion.

The second error assigned is that the court erred in overruling the plaintiff’s motion to make the Industrial Commission of Ohio a party defendant. This motion, the record discloses, was not made until after the verdict had been rendered in favor of the defendant. It was therefore not seasonably made and the trial court did not err in its ruling.

The judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


text:
    HOLMES, Plaintiff-Appellee, v. HROBON, Defendant-Appellant; MANN et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4303.
    Decided December 26, 1951.
    John H. Summers, Columbus, for plaintiff-appeilee.
    Herbert & Dombey, Paul M. Herbert, Edwin F. Tuttle, of Counsel, Columbus, for defendant-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, of Counsel, Columbus, for defendants-appellees.
    Pickrel, Schaeffer & Ebeling, Dayton, Morley, Stickle, Keeley & Murphy, Cleveland, for appellant.
   ON APPLICATION OF THE TRUSTEE

MEMORANDUM OPINION

By THE COURT.

Submitted on application of the Trustee for a separate findings of fact and conclusions of law.

The application for separate findings will be sustained. The findings of fact and conclusions of law which would be incorporated in a separate findings are set forth in the opinion of the Court, dated April 16, 1951, and supplemental opinion, dated July 12, 1951. While the Court did not intend these opinions to be separate findings of fact and conclusions of law, the drafting of such findings would simply be a repetition of much of the material contained in these two opinions. For this reason the Court instructs counsel to prepare an entry journalizing the two opinions as the Court’s separate findings of fact and conclusions of law, which the Court adopts as such.

The journal entry should reserve for further consideration the question as to the amount due the life tenant, for the reason that the amount due cannot be determined until a proper accounting has been had upon the application of the proper principles of law.

An entry may be drawn accordingly.

HORNBECK, PJ, WISEMAN, J, concur.

MILLER, J, not concurring.

ON APPLICATION FOR RECONSIDERATION

No. 4303. Decided January 14, 1952.

By THE COURT.

Submitted on application for a reconsideration of the Court’s order that the Court’s opinion and supplemental opinion be filed as a separate findings of fact and conclusions of law. The application is hereby denied.

HORNBECK, PJ, WISEMAN, J, concur.

MILLER, J, not concurring.


author: By SKEEL, PJ:

text:
    GLASSMAN, Plaintiff-Appellee, v. GLASSMAN et, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22122.
    Decided April 30, 1951.
    A. E. Greenfield, M. J. Malitz, Cleveland, for plaintiff-appellee.
    Sindell & Sindell, Harrison W. Ewing, Cleveland, for defendant-appellants.
   OPINION

By SKEEL, PJ:

■ This appeal comes to this court on questions of law from a judgment entered in the trial court for the plaintiff.

The plaintiff filed her petition seeking separate maintenance and support and custody of the minor children of the parties. Personal service was had upon the defendant. The grounds alleged as the basis for separate maintenance and support was gross neglect of duty and abandonment without good cause.

The trial court found that the plaintiff had established, by sufficient evidence, the right to separate maintenance, support and custody of the minor children. Whereupon a decree was entered by which judgment was rendered in favor of the plaintiff in the sum of $3150.00 as for unpaid alimony pendente lite, and attorney fees, an order that the defendant pay plaintiff the sum of $90.00 per week as alimony and support for herself and children, and to assume necessary dental expenses for the children. The court further ordered that, as alimony, the defendant should transfer to plaintiff his one-half interest in the family dwelling house.

The error complained of by the defendant is that the award of defendant’s one-half interest in the dwelling house constituted a division of property and that, in a proceeding for alimony and separate support, under the provisions of §11997 and §11998 GC, such an award is contrary to law.

Sec. 11998 GC in part provides:

“Upon satisfactory proof of any of the charges in the petition, the Court shall make such order for the disposition, care and maintenance of the children of such marriage, if any, as is just, and give judgment in favor of the wife for such alimony out of her husband’s property as is equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or by installments * * *.”

This section clearly provides that in granting separate support to the wife under §11997 and §11998 GC the court may allow alimony payable in real or personal property, or both, or in money. It may also be made payable in gross or by installments.

We have not been afforded the benefit of a bill of exceptions, it being claimed that the error complained of is demonstrated on the face of the record. From an examination of the court’s order it is shown that the court granted, as alimony, the defendant’s one-half interest in the family dwelling as well as weekly payments in money. Such an award'is not a division of property as claimed by defendant. Unquestionably the court found that providing the plaintiff the right to the family dwelling as a place to live was more desirable than increasing the money award to provide for housing of the family elsewhere. Such an award is provided for by the statute.

This court recognizes and adheres to the principle declared in various cases decided by the Supreme Court of Ohio that, in an action by the wife for alimony only, the trial court is not authorized to make an equitable division of the husband’s property but is limited by §11998 GC, to making an award as alimony for her maintenance and support during separation. That is the holding of the case of Durham v. Durham, 104 Oh St 7.

In that case the plaintiff wife filed a petition for alimony only. She alleged in her petition that the defendant owned certain real and personal property and that she furnished a portion of the money which formed part of the consideration which the husband gave for a part of the land. She prayed for alimony and that an additional amount be allowed as alimony sufficient to repay her for the money she had advanced to her husband. The husband’s answer admitted ownership of real and personal property and made general denial as to all the other allegations of the petition. The trial court, finding the allegations of the petition to be true, awarded alimony but refused to make a division of the property described. The wife prosecuted error to the Court of Appeals which affirmed the Common Pleas Court. The Court of Appeals certified the case to the Supreme Court of Ohio and that Court affirmed the Trial Court.

It is to be noted that the plaintiff in the Durham case was seeking in her alimony action not only alimony but, in the language of the court, an additional amount “sufficient to repay her for money she had advanced to her husband.”

The case of Materozzo v. Materozzo, 139 Oh St 36 cited by appellant is in line with the Durham case. The Materozzo case originated in Cuyahoga County where the husband filed suit for divorce. The wife filed a cross-petition for alimony only. The plaintiff then withdrew his petition for divorce and the case was heard on the cross-petition of the wife. The trial court entered a decree awarding the defendant the sum of $360.00 as and for and in full of all alimony both temporary and permanent “and in full satisfaction of all property rights that defendant has in the property of plaintiff which arose or grew out of said marital relationship.”

The Court of Appeals affirmed the Trial Court, but the Supreme Court of Ohio, on the basis of the Durham case, reversed the Court of Appeals and remanded the case to the Common Pleas Court for further proceedings.

It is clear from the language employed that in the Materozzo case, the trial court had improperly sought to determine finally the property rights of the parties. Certainly the Materozzo case differs from the instant case where the trial court, under §11998 GC, merely awarded alimony to the wife out of her husband’s property. The fact that the alimony awarded in this case was in real property, rather than in money, is not important in view of the language of the statute (§11998 GC) authorizing award to the wife of “such alimony out of her husband’s property as is equitable, which may be allowed to her in real or personal property or both, or in money * *

Appellant also cites the case of Stewart v. Stewart, 144 Oh St 289, which likewise follows the Durham case. Theré the court had before it a petition for alimony only on the part of the wife, the husband cross-petitioning for divorce. The court awarded alimony to the wife and denied a divorce to the husband. As a part of the decree the trial court ordered plaintiff to vacate the premises where she was residing and she was ordered “to cooperate with and as requested by the defendant in the sale or leasing of said premises, as he may determine should be done.” The judgment was affirmed by the Court of Appeals but reversed by the Supreme Court of Ohio, under the doctrine of the Durham case. The Supreme Court in its opinion pointed out that the journal entry of the trial court in authorizing the sale of the real estate by the husband, barred the right of inchoate dower in the wife and thereby amounted to a division of property rights. On the contrary, the journal entry of the trial court in the pending case shows no attempt to effect inchoate dower rights and the trial court’s opinion indicates there was no division of property intended.

We find no case directly in point, but the statute clearly gives the Common Pleas Court jurisdiction to make an order such as was here entered, so long as it is made as alimony. This court, without a record of the evidence, must conclude that the order and judgment of the trial court was supported by sufficient evidence.

The judgment of the court is therefore affirmed. Exceptions. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By HORNBECK, J.

text:
    STEWART, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4498.
    Decided December 19, 1950.
    George Bailes, Cincinnati, for petitioner.
    Hon. Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By HORNBECK, J.

The action is in habeas corpus. It is the claim of the petitioner that as a prisoner in the Ohio Penitentiary he is illegally and unlawfully restrained of his liberty. He is serving a sentence of from one to twenty years in the Ohio Penitentiary upon commitment from the Court of Common Pleas of Hamilton County, Ohio, upon conviction of the crime of sodomy.

The record and facts disclose that the original indictment charged the petitioner with committing the offense of sodomy upon one, Elmer C. Glahn. After petitioner had entered a plea of not guilty and counsel had been assigned for him, the indictment was amended by changing the name of Elmer C. Glahn to John Glahn. The defendant then waived a jury and was tried to the court and found guilty as charged. Before sentence, inasmuch as the conviction was upon a charge of sodomy under §13043 GC the court following the provisions of §13451-20 GC appointed three psychiatrists to examine the petitioner and report to the court. The report concluded with the following that,

“we do not believe that this man is psychotic (insane). * * * A formal psychometric test would settle this point but the undersigned are of the opinion that Stewart is a psychopathic offender under the provisions of §13451 GC. We recommend his commitment to a suitable institution for psychopathic offenders.”

The petitioner and his counsel were given a certified copy of the report and notice of the time fixed for the hearing on the report. The court found petitioner to be a psychopathic offender, as defined in §13451-19 GC, and imposed the sentence heretofore stated, suspended the sentence and committed petitioner to the Director of the Department of Public Welfare of the State of Ohio. Petitioner was placed in the Lima State Hospital for the Insane, and later, pursuant to the provisions of §13451-22 GC, transferred to the Ohio Penitentiary where he was incarcerated at the time this cause was submitted.

It is the claim of the petitioner that he is illegally restrained for two reasons:

1. Because of the amendment in the indictment changing the Christian name of the person upon whom the offense was alleged to have been committed.

2. Because of the procedure adopted by the trial judge at the time of the trial and subsequent thereto whereby he was committed to the Lima State Hospital and later to the Ohio Penitentiary.

We might appropriately dispose of the grounds upon which petitioner seeks his release by holding that neither affects the jurisdiction of the trial court to hear and determine the guilt or innocence of the petitioner and to pronounce sentence upon that judgment.

Sec. 13451-20 GC specifically provides that every order of indefinite commitment made thereunder and any finding that a person is a psychopathic offender shall constitute a final order. If petitioner’s rights were transgressed by the action taken by the court under the aforesaid section of the Code he was granted the benefit of an appeal from the order.

It should also be noted, that §13451-22 GC accords to the petitioner the advantage of reckoning his eligibility for parole or discharge from the date of his reception in the institution to which he is committed and further, accords him the mandatory right to have consideration for parole when he has been confined for a period equal to or exceeding the maximum sentence for the offense of which he has been convicted. In other words, the petitioner is assured all rights as to parole or discharge to which he would have been entitled had he been immediately committed to the penitentiary under his sentence.

The matters sought to be urged in this action, if they have merit, could and should be urged by appropriate error proceedings.

We briefly give attention to the merit of the grounds urged for the issuance of the writ. The amendment of the indictment by changing the name of Elmer C. Glahn to John Glahn was clearly authorized by the express terms of §13437-29 GC. The amendment did not affect the substance of the crime charged nor could there have been any confusion of the identity of the person upon whom it was eventually alleged the offense had been committed, else petitioner could not have been convicted. It is asserted by counsel for appellee that the amendment was made by and with the consent of petitioner and his counsel. This may be true but the record does not establish it. In any event, with or without the consent of the defendant, the trial judge permitted the amendment under authority of the controlling statutes. It is urged in the brief of petitioner that because of the difference in the names in the indictment, as originally returned and as amended, it follows that the grand jury must have acted upon the testimony of John Glahn and not Elmer Glahn and that such procedure is not authorized. This contention is not well grounded even if the facts were as contended. The grand jury may properly indict upon any sufficient, competent evidence and it need not come from the one upon whom the offense is committed.

The second ground for the granting of the relief sought is that the trial judge tried and found guilty a defendant whom he had reason to believe was insane. This is not supported by the record for two reasons: First, nothing appeared at any time to put the trial judge on notice that the petitioner was legally insane or incapable of appreciating the consequences of committing the act with which he was charged. The report of the commission of psychiatrists is to the effect that Stewart was not insane but a psychopathic offender as defined in §13451 GC. The definition referred to, although not found in §13451 GC, but in §13451-19 GC, did not bring the petittioner within the classification of one who was legally insane.

Second, an examination of the proceedings followed by the trial judge, from the time that the petitioner was arraigned until he was finally sentenced and committed, is convincing that he meticulously observed the provisions of the controlling sections of the Code and that petitioner had every right accorded to him to which he was entitled under the law.

No basis appears for' the granting of the writ of habeas corpus. It will be denied.

MILLER, PJ, WISEMAN, J, concur.


text:
    FRIEDMAN, Plaintiff-Appellee, v. EAST LIVERPOOL (City), Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 682.
    Decided December 9, 1950.

      Tobin & Tobin, East Liverpool, for plaintiff-appellee.
    John B. McDonald, Jr., City Sol., East Liverpool, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

In this opinion the parties to this appeal will be called plaintiff and defendant.

A jury in the court of common pleas returned a verdict for plaintiff, upon which the trial judge subsequently duly entered judgment, in her action filed therein against defendant, a municipal corporation, to recover damages for personal injuries sustained when she fell, during daylight, upon a sidewalk situated in front of premises known for street numbering purposes as 217-219 South Market Street, a duly dedicated street in defendant corporation, which fall allegedly was caused by defendant’s negligence in failing to keep such sidewalk in repair and free from nuisance.

Plaintiff testified that she had visited her sister’s home once each week over a period of four years; that her sister’s home was situated adjacent to the sidewalk upon which she fell, but that she had never crossed that sidewalk before she fell upon it; that a portion of that sidewalk was in disrepair; that there was a break in it, which she had seen; that she “knew it was there”; that she took a short-cut across such sidewalk to reach the steps of her sister’s home, and “unconsciously I passed and stepped on the edge, stepped into it and fell”; “I fell on the broken sidewalk and it just crumbled to pieces under my feet and threw me over on the left side.”

No person testified to seeing plaintiff fall. Accordingly there is no conflict with plaintiff’s testimony on that question.

The question presented for our consideration and determination by defendant’s appeal on questions of law is whether, as a matter of law, plaintiff contributed to her own injuries and thus barred herself from recovery against defendant.

We have read the reasonably voluminous bill of exceptions submitted to us for review, and conclude that upon plaintiff’s uncontradicted testimony, and the rule announced in the case of Winkler, Appellee, v. City of Columbus, Appellant, 149 Oh St 39, and authorities cited therein, the court erred to defendant’s prejudice in failing to sustain its motion for a verdict to be directed in its favor made at the conclusion of all the - evidence, and in failing to do that to sustain its motion for judgment to be entered in its favor notwithstanding the verdict of the jury returned against it.

The judgment of the court of common pleas is reversed for the reasons stated herein, and coming now to render the judgment which that court should have rendered final judgment is entered for defendant.

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


author: By THE COURT.

text:
    MARKER, Estate of, In re: PROBERT et, Plaintiffs-Appellants, v. GIBBONS, Exr., Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4538.
    Decided June 25, 1951.
    George J. Bowers, Joseph B. Willson, Henry G. Binns, Columbus, for plaintiffs-appellants.
    Frank B. McClelland, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law from a declaratory judgment of the Probate Court construing the Last Will and Testament, and particularly Item 6, of Kathryn Marker, deceased.

The pleadings raise issues other than those adjudicated but we give attention only to the judgment from which the appeal is prosecuted and the errors assigned thereto. There is a bill of exceptions containing the testimony presented to the trial judge and the judgment entry sets out separate findings of fact and conclusions of law.

The twelfth paragraph of the judgment entry announces the construction adopted by the trial judge of Item 6 of the will in this language:

“That from the language of said Item VI of said will, the manner in which it is used and the testimony of extrinsic facts, the true intention of the testatrix was that if her husband, Clarence M. Marker, could not take under the provisions made for him in her will, that Andrew J. Gibbons should take thereunder, and that the last sentence in said Item VI is dispositive and creates a gift over in favor of Andrew J. Gibbons.”

And that,

“It is, therefore, ordered, adjudged and decreed that Andrew J. Gibbons is the sole legatee and devisee under the will of Kathryn M. Marker.”

Seven errors are assigned. The first is that,

“The Court erred in arriving at the conclusion and expressing the opinion, before any testimony was offered on the subject, that there was a latent ambiguity in the will of Kathryn Marker.”

We find this assignment not well made in and of itself because it could not have been prejudicial if the Court, upon the evidence received, reached a correct conclusion.

The second assignment,

“The Court erred in presuming, as a matter of law, that a testator may not intend to die intestate unless a contrary intention is affirmatively shown by the language of the will.”

Like the first assignment this error, if it occurred, could not be prejudicial in and of itself. The other five errors assigned all relate directly or indirectly to the correctness of the judgment of the trial judge and the processes by which he reached that judgment.

Item 3 of the will of Kathryn Marker provides:

“I give, devise and bequeath unto my dear husband, Clarence M. Marker, all my property, real, personal, or mixed and wheresoever situated including all of my life insurance, payable to my estate to be his absolutely and in fee.”

Clarence M. Marker and Kathryn Marker were husband and wife. • Both died of natural causes, he on the 28th of February, 1949, and she on the 30th of May, 1949. Both had made their wills on February 8, 1941. The wills were alike in subject matter except that in the husband’s will Kathryn Marker, the wife, was given a fee under the third item thereof and in the wife’s will, the husband was given a fee in the third item thereof. The sixth items are identical.

The appellants claim that the will of Kathryn Marker is plain, clear and unmistakable in meaning. The appellees claim and the trial judge found that there was a latent ambiguity in Item 6; that the last sentence of Item 6 should be construed to be a gift over to the effect that as there was no one to take under the will by the preceding paragraph, “it was all to go to Andrew J. Gibbons.”

The briefs in this case are very thorough and explore every aspect of the case as developed upon the record.

Appellees contend, among other things, that one of the following two propositions must be true, and inescapable:

(1) “The ambiguity in this will must be construed in favor of Andrew J. Gibbons, the only named legatee and devisee in light of the extrinsic evidence, or

(2) Without the aid of extrinsic evidence, the will of this decedent, Kathryn Marker, manifests the over-all intent that the primary beneficiary was to be her husband, Clarence Marker; the second beneficiary, Andrew J. Gibbons, if her husband did not or could not take under the provisions of her will by reason of his prior death.”

We agree that the will manifests the over-all intent of the testatrix that the primary beneficiary was to be her husband, Clarence Marker, and that the second beneficiary was Andrew J. Gibbons, but, we cannot agree either that there was any ambiguity in the will or that its over-all intent was to name Andrew J. Gibbons as a devisee and legatee if her husband did not or could not take under the provisions of her will “by reason” (alone) “of his prior death.”

Most of the cases cited are germane only if it be determined that there is an ambiguity in the will as developed by the extrinsic testimony.

It is fundamental that if the language employed in a will has a definite, unmistakable meaning nothing extrinsic to the will may be offered or accepted for the simple reason that the effect of such testimony, if supporting would add nothing to it and if controverting would be in derogation and in violation of the clear intendment as expressed.

It develops that Kathryn Marker survived her husband by approximately three months and died of natural causes; therefore, they did not die in a common casualty or catastrophe nor under circumstances wherein it could not be readily determined which of them expired first. These are the contingencies and the only contingencies upon the happening of either of which the estate devised to Andrew J. Gibbons was to vest. It is conceded as it must be, that the first conditions, namely, common casualty or catastrophe, could be given no application but it is urged that “if the testatrix’s death and that of her husband occur under such circumstances that it can (cannot) be readily determined which of them expired first then her property would go to Andrew J. Gibbons.” This, in our judgment, is placing into the will by parol the very opposite of that which is written therein.

There were but two dispositive items in this will, 3 and 6. Upon the death of the husband under Item 3 of his will, identical with Item 3 of the will under consideration, Kathryn Marker took an estate in fee simple. This is true because the only events which could have prevented such vesting are those set forth in Item 6 of the husband’s will. No one of them occurred and Item 6 thus becomes a nullity because there was no such subject matter at the time of the death of either upon which it could operate.

We are unable to find that there is any ambiguity whatever in Item 6 in connection with Item 3 of the will of testatrix. They relate to and are intended to meet entirely different situations. Item 3 was to be effective, if testatrix’s husband survived her and the contingencies to which Item 6 applied did not occur and therefore it was inapplicable and without effect.

Before any testimony may be received bearing upon a latent ambiguity in a will its language must be susceptible to proof that it will apply equally to two or more subjects or things. Townsend’s Exrx. v. Townsend, et al., 25 Oh St 477. The will under consideration here permitting of no such interpretation, the testimony purposed to disclose a latent ambiguity was improperly received.

The effect of the testimony was to develop an intention on the part of the testatrix to dispose of her property in a manner not directly or inferentially contemplated or encompassed within the expressed terms of the language employed by her in her formal will. To read this intention into the instrument accomplishes the making of a new and different will. Oglesbee v. Miller, 111 Oh St 426. The probative effect of the evidence, if competent, is to produce strong equities on behalf of Andrew J. Gibbons but it does not, in our opinion, afford support for a construction of Item 6 of the will as found in the judgment under review. All technical rules of construction are of no effect where the language of the will clearly sets forth the intent of the testator. Richardson v. Cincinnati Union Stock Yards Co., 8 O. N. P. 213, 222.

There being no Ohio case directly in point with the facts here developed, appellees rely upon In Re Hardie’s Estate, 26 N. Y. Supp. (2) 333, affirmed without opinion, 263 App. Div. (N. Y.) 927, and appeal denied, 33 N. Y. Supp. (2d) 816. The judgment in this case and the reasoning of the trial judge support the contention of the appellees. We have carefully considered this opinion and cannot agree with its rationale. The trial Judge relied upon two rules of construction, viz., that, the testator having made a will in existence at his death did not mean to die intestate and that, from the-evidence he did not desire that his relatives share in his estate. The difficulty with this reasoning is that it may not be indulged if the will will not permit such interpretation. It would be as logical to write a will for a deceased person where he had not done so, based upon his expressed desires in life, as to read something into a will which had been duly executed which the language employed will not permit. In Re Beals Estate, Beal, et al. v. Hanson, et al., (Utah) 214 P. (2d) 525, is, in our judgment, sounder than the Hardie opinion, and holds that a provision for disposition of property should testator and his wife perish in a common disaster was not operative where testator’s wife pre-deceased testator and not in a common disaster. The Court reached the same conclusion in a somewhat similar provision in the will of Glover v. Reynolds, 135 N. J. Eq. 113, 37 Atl. (2d) 90, 91. These two latter cases support the conclusion which we have reached and both wills and conditions attached upon which the estates were to vest. These conditions in part were like those found in the instant cause and the fact that here we have an additional condition does not change the principle controlling.

The will of the testatrix, Kathryn Marker, being silent as to any disposition of her property in the situation developed at her death it follows that its devolution cannot be controlled by the' will but must be determined by the statutes of descent and distribution.

We find that assignments of error Nos. 3, 4, 5, 6 and 7 are well made.

Judgment in accord with this opinion and cause remanded.

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


author: By MILLER, J.

text:
    VAN HOOSE, In re.
    Ohio Appeals, Second District, Clark County.
    No. 485.
    Decided May 22, 1951.
    Richard ■ T. Cole, Municipal Pros., Springfield, for the City of Springfield.
    Harvey Crow, Urbana, for the applicant.
   OPINION

By MILLER, J.

This is an action in habeas corpus submitted on an agreed statement of facts of which the following is pertinent to the issues presented.

The petitioner, Hobert Van Hoose, was the driver of a motor vehicle which was involved in a collision with another automobile at the intersection of two streets in the City of Springfield, Ohio. After the accident the police were called and upon investigation being made the petitioner was arrested without a warrant and taken to the city prison. The following day the arresting officer signed in blank a purported affidavit which was later filled in, charging him with the violation of traffic ordinance No. 4308-40 of the City of Springfield. The said affidavit purports to have been acknowledged before a Clerk of the Municipal Court, but as a matter of fact it was neither acknowledged nor sworn to before the said officer. The petition was then taken into the Municipal Court of Springfield, where a plea of guilty was entered and sentence pronounced, which sentence he is now serving.

Several grounds are set forth urging that the Court had no jurisdiction to impose the sentence, but only one of which we find to be well taken, to wit, a proper affidavit was never filed in the Municipal Court which is a prerequisite to the acquiring of jurisdiction of the subject matter of the action. In State v. Lanser, 111 Oh St 23, at page 26, Allen, J., says:

“The filing of the affidavit is prerequisite to the issuing of the warrant, and without the filing of a proper affidavit no jurisdiction is acquired.”

Since the Court had no jurisdiction over the subject matter the plea of guilty was of no significance, as such jurisdiction cannot be waived although it may be waived over the person. It is fundamental that want of jurisdiction either of the person or subject matter is ground for relief on habeas corpus.

The application will, therefore, be allowed.

HORNBECK, PJ, and WISEMAN, J, concur.


author: Per CURIAM: Per CURIAM:

text:
    BARCO MACHINE PRODUCTS CO., Plaintiff-Appellant, v. TURNER PRINTING MACHINERY CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22027.
    Decided February 26, 1951.
    Max S. Fishel, Cleveland, for plaintiff-appellant.
    P. Jerome Pasch, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

We are of the opinion that the trial court erred in excluding plaintiff’s exhibits G, H, I and J, from the consideration of the jury. These exhibits were competent and relevant upon the subject of damages. They tend to reflect the attitude of the parties on the subject of damages after the alleged breach and are competent as bearing upon the damages supposed to have been within the contemplation of the parties at the time the contract was made.

We hold also that the trial court was in error in its answer to the question propounded by the jury, relating to paragraph 6 of the Quote Sheet. The jury’s inquiry was directed to the question whether paragraph 6 of the quote sheet might be considered as a qualification of plaintiff’s promises to perform the contract within the time claimed by the defendant. The quote sheet was received in evidence and the jury ought to have been instructed that paragraph 6 thereof was competent as bearing upon the time of performance and the agreement of the parties with reference thereto.

We hold further that it was error for the trial court to refuse to examine and consider the deposition offered by plaintiff in support of its motion for a new trial.

The court’s error in failing to make reference to “consideration” as an element of a contract is one of omission.

We find no other errors.

Judgment reversed and cause remanded for further proceedings according to law. Exc. Order see journal.

SKEEL, PJ, HURD, J, McNAMEE, J, concur.

(ON REHEARING, AFTER GRANTING OF MOTION FOR REHEARING FILED BY DEFENDANT APPELLEE.)

No. 22027. Decided April 23, 1951.

APPEAL ON QUESTIONS OF LAW

Per CURIAM:

This is the second time this case has come to this Court on appeal on law from the Municipal Court of Cleveland.

On the first appeal, the question involved was the action of the Municipal Court in a trial to the Court without a jury. To the original action on an account stated, the defendant had interposed a defense of accord and satisfaction and in addition a counter-claim for damages because of failure of the plaintiff to complete the paper drill experimental model ordered and as to which it was claimed that time was of the essence.

On the original hearing, the defendant made a motion at the close of plaintiff’s case for a directed verdict and judgment on the petition in which motion the plaintiff joined and asked for a dismissal of the cross-petition. The court thereupon entered judgment for the defendant on plaintiff’s petition and dismissed the cross-petition. Plaintiff took no appeal but defendant filed an appeal on law to this Court. After hearing, this Court reversed the judgment of the Municipal Court for error of law in dismissing defendant’s cross-petition at the close of plaintiff’s case, and remanded the case to the Municipal Court with instructions to reinstate the cross-petition, to proceed to trial thereon, and for further proceedings according to law.

When this case came on for trial the second time, the trial judge then hearing the case, apparently interpreted the action of this Court in remanding the case for trial on the cross-petition as precluding the introduction of any evidence involved in plaintiff’s original claim and as precluding any evidence by way of defense that there had been an accord and satisfaction of the claim stated in the cross-petition. It was not the intention of this Court to preclude any such evidence as might be properly pleaded. The trial court, at any rate excluded Exhibit H. This was error since the exhibit was competent and relevant upon the subject of damages, tending to reflect the attitude of the parties on the subject of damages after the alleged breach, and competent also as bearing upon the damages supposedly within the contemplation of the parties at the time the contract was made. Although Exhibits I and J were identified and in our opinion, competent, they were never offered in evidence.

We find error also in the action of the trial court in its answer to the question propounded by the jury, relating to paragraph 6 of the Quote Sheet. The jury’s inquiry was directed to the question whether paragraph 6 of the Quote Sheet might be considered as a qualification of plaintiff’s promises to perform the contract within the time claimed by the defendant. The Quote Sheet was received in evidence and the jury should have been instructed that paragraph 6 on the reverse side was competent, along with other evidence, as bearing upon the time of performance and the agreement of the parties with reference thereto.

It was likewise error for the trial court to refuse to receive in evidence the deposition offered by plaintiff in support of its motion for a new trial. On this point it is to be noted that by §11579 GC, depositions, as well as affidavits, are authorized and in fact required, in proof of such newly discovered evidence as is the basis for a motion for a new trial under §11576-(7) GC. For this reason the deposition should have been received in evidence and considered by the Court.

The Court’s error in failing to make reference to “consideration” as an element of the contract was one of omission.

We find no other errors.

Judgment reversed and cause remanded for further proceedings according to law. Exceptions. Order see journal.

SKEEL, PJ, THOMPSON, J, HURD, J, concur.


text:
    MORRIS, Sr., Plaintiff-Appellant, v. C. E. MORRIS COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4508.
    Decided February 19, 1951.
    Williams, Reynolds, Murray & Deeg, Columbus, for appellant.
    Vorys, Sater, Seymour & Pease, Columbus, for appellee.
   OPINION

By HORNBECK, PJ.

The appeal is on questions of law from a judgment of the Common Pleas Court in favor of the defendant dismissing plaintiff’s petition.

Nine errors are assigned which may be encompassed under three headings: The judgment was contrary to law, not supported by and against the weight of the evidence and error by the Court in the admission of evidence on behalf of the defendant.

The action was for damages for breach of contract and plaintiff prayed damages in the sum of $18,937.50. The issue joined between the parties required construction of a written contract. The contract for construction was dated August 2, 1946, and was supplemental to the principal contract in which agreement Lloyd E. Morris sold to W. Frank Morris shares of the C. E. Morris Company representative of one-half of the outstanding stock of said corporation for cohsideration of $115,000.00. The supplemental agreement which is immediately under consideration on this appeal provided:

“By way of supplement to the Agreement between W. Frank Morris, The C. E. Morris Company and Lloyd E. Morris respecting the purchase of the stock of Lloyd E. Morris: It is agreed that if, within five (5) years following the transfer of said stock to the company by Lloyd E. Morris, the Pennsylvania Railroad should buy any tract of property from the C. E. Morris Company for extending the right of way of the Railroad, and The C. E. Morris Company should receive from said purchase a sum in excess of Ten Thousand Dollars ($10,000.00) after deducting the capital gains tax resulting from said purchase, then it is agreed that the company, in addition to the payment stipulated in the contract which is hereby supplemented, will pay Lloyd E. Morris fifty per cent (50%) of the amount by which said purchase payment less the capital gains tax * *

The cause was submitted to a judge, a jury having been waived. Both parties contended in the trial court, and contend here, that the supplemental agreement is not ambiguous and the trial judge, in a written opinion, so held.

The C. E. Morris Company owned and operated a plant and offices at the northeast corner of Jefferson and Curtis Avenues in the eastern section of Columbus. The north end of the land upon which the plant was located adjoined the right of way of the Pennsylvania Railway Company. Some 25 to 30 years ago there had been some negotiations between the Railway Company and the Morris Company relative to the acquisition by the Railway Company of a strip of land about 100 feet wide for the use of the Railway Company for a right of way. These negotiations were abandoned. It is agreed that some consideration was given at the time of the negotiations to the amount of money which the Morris Company would require to be paid to it if the Railway Company purchased the land which it desired. The plaintiff testifies that the amount which was to be demanded from the Railway Company was $50,000.00. Frank Morris denies that any sum was fixed. In 1946 plaintiff and Frank Morris each owned 50% of the capital stock of the corporation. Plaintiff had proposed to Frank Morris that he would either buy or sell for $125,000.00. Frank Morris elected to sell and at that time there was some conversation relative to an adjustment over and above the $125,000.00 sale price, if, in the future, the Railway Company should buy the land which it desired. Before the agreement whereby the plaintiff was to buy, he changed his mind and offered to sell his holdings for $115,000.00, which offer was accepted by Frank Morris. After the price had been agreed, plaintiff suggested that in the event of a sale of a strip of land to the Pennsylvania Railway Company he should, under certain conditions, share in the proceeds. It was finally determined that the agreement between the parties as to this matter should be carried into a supplemental agreement. Thereupon the parties with their attorneys met and counsel for plaintiff dictated the subject matter of the agreement which we have heretofore set forth.

In 1948, the Railway Company consummated an agreement with the Morris Company by the terms of which it acquired a tract of land from the Morris Company, the consideration for which, as recited in the deed, was $7,875.00. At the same time the Railway Company deeded to the Morris Company a strip of land alongside the plant of the Morris Company, the consideration for which was stated in the deed at $7,875.00. In other words, the companies traded tracts of land evenly. In addition to the land received by the Morris Company in trade the Railway Company paid to it the sum of $40,000.00 for which it took the receipt of the Morris Company in full of all claims which said latter company should have against it for damages because of changes required to be made by the Morris Company in its plant by reason of the taking of the parcel of land which it had deeded to the Railway Company.

The claim of the plaintiff is based upon the language of the contract by the terms of which he asserts that he is entitled to one-half of the total amount, $47,875.00, paid by the Railway Company to the Morris Company, less $10,000.00. It is the contention of the defendant that the plaintiff is entitled to nothing because the purchase price of the real estate sold by the Morris Company to the Railway Company was not in exless of $10,000.00. In the trial Court, as here, both parties insist that their rights may be determined from the language of the contract and that it is not ambiguous. The trial judge likewise he.ld that it was not ambiguous and that it should be construed as contended by the defendant.

There is no claim of fraud in this case, nor, is it urged that the consideration recited in the deed from the Morris Company is not representative of an adequate price for the land conveyed. There is further evidence in the record that the price paid was a fair and reasonable value of the land deeded. We consider the agreement upon the concession by both parties that it is not ambiguous in its terms and, therefore, must be construed upon the language as used by the parties in setting out their contract.

It is asserted properly that as the contract was prepared by counsel for plaintiff it must be construed more favorably to the other party thereto. We see no necessity of resorting to this rule. The contract is intended to assure to the plaintiff a share of the purchase price of a piece of land, i. e., “tract of property,” in the event that it is sold to the Railway Company at a price in excess of the sum fixed in the contract. Inasmuch as there was no capital gains tax the contract provides that if the Railway should purchase any tract of property from the corporation for the purpose of extending the right of way of the Railway, if the purchase price exceeded $10,000.00, Lloyd Morris was to share to the extent of 50% of the excess. The determinative question here is what is meant by the purchase price. Did it include all that was received by the Morris Company from the Railway Company or did it include only that which it received in payment for the land deeded to the Railway Company?

Manifestly, this supplemental agreement was prepared to define and protect the rights of the parties, if, and when, a sale of certain property was made. The subject matter of the sale is “any tract of property” owned by the Morris Company “for the purpose of extending the right of way of the railroad.” The seller is “the corporation,” The Morris Company, the buyer is the “Pennsylvania Railroad,” the purchase price, above which plaintiff was to share was $10,000.00 “less capital gains tax.” The only subject to be sold, as stated in the contract, was a tract of land for right of way for the' railroad. A tract of land for right of way purposes was the only property sold to the railroad company. The consideration for the sale as defined in the contract was the amount received by the corporation from the railroad company for the tract defined, viz., the right of way. The purchase price, as defined, for the tract, as described, was the equivalent of $7,875.00 in money, less than $10,000.00. The railway acquired no tangible property, real or personal, for the $40,000.00 which it paid to the Morris Company, nor, could there have been any computation, within reason, that would have allocated any part of the $40,000.00 to purchase price of the land which it received by deed. The parties to the contract were familiar with the fact that there had been a survey by the Morris Company to fix the money return that it would' expect from the railroad company if it dealt with it in its plan to buy the right of way either agreeably or by condemnation. They must have known that no figure approximating $40,000.00 could be representative of the value of the right of way to be acquired. Had the contract contemplated a division of this money it could have been expressed by the insertion of a few appropriate words in the agreement. Upon the language chosen by counsel for the plaintiff no such division was contemplated.

Counsel have capably argued their respective contentions upon other propositions of law and fact in their briefs, including a supplemental brief of plaintiff, but it would serve no good purpose to discuss them at length in this opinion. Some of them would be applicable if the agreement was not so clear and specific in its terms.

It may be that we have oversimplified this supplemental agreement, but, as we view it, it is not involved and presents no particular difficulty in interpretation.

As to the other errors assigned we find them not well taken. They relate to the admission of testimony which it is claimed was incompetent and prejudicial. We believe the testimony was competent as bearing on the transaction involved in the supplemental agreement and particularly on the issue whether the $40,000.00 was a part of the purchase price paid by the Railway Company as defined in the contract. If any of this testimony could be found to be inadmissible its admission could not have affected the judgment reached in the trial court.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By WISEMAN, J.

text:
    MOORE, Plaintiff-Appellant, v. FOREACHER et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4509.
    Decided February 21, 1951.
    Coughlin, Ogier & Lloyd, Robert A. Ramsey, Columbus, for appellant.
    Herbert S. Duffy, C. Wm O’Neill, Attys. Geni., James B. Dooley, J. Ralston Werum, Asst. Attys. Geni., Columbus, for appellees.
   OPINION

By WISEMAN, J.

This is a law appeal from the judgment of the Common Pleas Court of Franklin County dismissing the appeal from the determination of the Board of Review, Bureau of Unemployment Compensation, denying claimant’s application for unemployment compensation.

During the pendency of the appeal in the Common Pleas Court the Board of Review, Bureau of Unemployment Compensation, filed a motion to dismiss the appeal for the reason that the notice of appeal failed to set forth the decision appealed from as required by law. Before this motion was deaided the appellant filed a motion for an order permitting the filing of an amended notice of appeal which was tendered with the motion. The Court sustained the motion to dismiss the appeal and overruled the motion to permit appellant to amend the notice of appeal.

Two errors are assigned: The dismissal of the appeal was contrary to law; and the court erred in refusing appellant permission to amend the notice of appeal.

The principal question for determination is whether the notice of appeal complied with the requirements of §1346-4 GC, the pertinent part of which provides as follows:

“* * * Such appeal shall be taken by the filing by appellant of a notice of appeal with the clerk of such court and with the board of review. Such notice of appeal shall set forth the decision appealed from and the errors therein complained of.”

The notice of appeal in the instant case states:

“That the decision appealed from is numbered on the Appeals Docket for the Board of Review — Bureau of Unemployment Compensation No. 105497, 13915 - REF. - 49, 151 - BR - 50, and the Social Security number of the appellant herein is [ XXX-XX-XXXX ]. Appellant further says that the decision of the Board of Review was to the effect that the appellant herein was not available for work, whereas, in truth and in fact, the appellant was available for work.”

Appellant contends that the notice of appeal met the statutory requirement by designating the decision appealed from by the appropriate number and in stating the substance of the decision. In support of this contention .appellant cites Castleberry v. Evatt, 147 Oh St 30, 67 N. E. (2d) 861, which involved an appeal from the Board of Tax Appeals to the Supreme Court. The sufficiency of the notice of appeal was challenged. The statutory requirement applicable to appeals from the Board of Tax Appeals is found in §5611-2 GC, the pertinent part being as follows:

“Such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from and the errors therein complained of.”

The statutory requirement under consideration in the Castleberry case is similar to the statutory provision applicable here. The notice of appeal in that case is set forth on page 37 in the dissenting opinion by Judge Zimmerman as follows:

“* * * he (appellant) desires and intends to appeal to the Supreme Court of Ohio from a judgment of the Board of Tax Appeals entered in cause number 9523 on November 7, 1945, reversing an order and judgment theretofore made and entered by the Hon. William S. Evatt, former Tax Commissioner, wherein a tax assessment was levied against one J. P. Castleberry of Mariemont in the State of Ohio. * * * Said entry of judgment is erroneous and contrary to law in finding as a matter of law and fact that the milk which was the subject matter of the sales was sold to be consumed off the premises where sold.”

Judge Matthias, writing the opinion for the majority, on page 31 said:

“The writer of this opinion entertains the view that the notice of appeal from the Board of Tax Appeals to this court does not comply with the requirement specified in §5611-2 GC, that ‘such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from’; and therefore that the general provision of §12223-5 GC, which reads, ‘the notice of appeal shall designate the order, judgment, or decree appealed from,’ has no application to this proceeding.

“However, the majority of the court having ruled against the motion to dismiss the appeal, we proceed to a consideration of the case on its merits.”

Judge Zimmerman dissented on the merits but agreed with the majority on the question of the sufficiency of the notice. On this question we quote from Judge Zimmerman’s opinion, beginning on page 36:

“As to the first question, §5611-2 GC, relating to appeals from decisions of the Board of Tax Appeals to the Supreme Court, provides in part:

“ ‘Such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from * *

“It is important to note that such section, unlike §5611 GC, pertaining to appeals from final determinations of the Tax Commissioner to the Board of Tax Appeals, says nothing concerning the inclusion of any paper in the notice of appeal by way of attachment or incorporation.

“The terms ‘set forth’ and ‘set out’ ordinarily mean to recite or narrate facts or circumstances; to describe or to incorporate. See Black’s Law Dictionary (3 Ed.), 1612.

“The principal function of a notice of appeal is to advise the opposite party of the taking of an appeal. Statutes relating to appeals are remedial and should be liberally construed to the end that the right of appeal may not be defeated. Commonwealth Oil Co. v. Turk, 118 Oh St., 273, 160 N. E., 856; 37 O. Jur., 732, Section 411.

“The notice of appeal here involved was filed with the Board of Tax Appeals within the thirty-day limitation. It adequately describes and sets forth the decision complained of and was sufficient to satisfy the demands of §5611-2 GC. See Capital Loan & Savings Co. v. Biery, 134 Oh St, 333, 16 N. E. (2d), 450; Trotwood Trailers, Inc., v. Evatt, Tax Commr, 142 Oh St, 197, 51 N. E. (2d), 645.

“It is the general rule that, although a notice of appeal should comply substantially with statutory requirements, it is usually sufficient if it contains enough information to apprise the opposite party of the particular judgment which is sought to be reviewed. 3 American Jurisprudence, 168, Section 470; 4 Corpus Juris Secundum, 1061, Section 593.”

The essence of Judge Zimmerman’s ruling is that a substantial compliance with the requirements of the statute is sufficient. This opinion standing alone would lend no support to the contention of counsel for the Bureau that substantial compliance is not sufficient. Counsel for the Bureau specifically contends that the statute (§1346-4 GC) requires the appellant to set forth the decision appealed from and that this requirement is mandatory; that the statutory provision requires the appellant to set forth the entire decision appealed from; that unless appellant complies with the statute the Court is without jurisdiction. In support of this proposition counsel for the Bureau cites the case of Zier v. Bureau of Unemployment Compensation, 151 Oh St 123, 84 N. E. (2d) 746, the first syllabus of which is as follows:

“An appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed by statute. The exercise of the right conferred is conditioned upon compliance with the accompanying mandatory requirements.”

On page 127 of the opinion, which was written by Judge Matthias, the Court states:

“* * * but compliance with the requirements as to the filing of the notice of appeal — the time of filing, the place of filing and the content of the notice as specified in the statute —are all conditions precedent to jurisdiction.

“The notice of appeal involved herein is not sufficient to meet the requirements of the statute in that it fails to set forth the decision appealed from or the errors therein complained of.”

In that ease the same statutory provision was under consideration as in the instant case. The pronouncement of the Supreme Court in that case must be read in light of the notice of appeal which the appellant filed in that case. The notice of appeal read as follows:

“The undersigned claimant hereby gives notice of appeal from the decision of the board of review denying the right to compensation, in accordance with his right to appeal under §1346-4 GC.”

We readily agree that the notice of appeal in that case did not set forth the decision appealed from or the errors complained of. The Court did not discuss or even cite the Castle-berry case.

In the final analysis we are here required to determine the meaning of the statutory words “set forth.” In the Castle-berry case Judge Zimmerman cites Black’s Law Dictionary which defines “set forth” to mean: “to recite or narrate facts or circumstances; to describe or to incorporate.”

We find no opinion of the Supreme Court, or of an Appellate Court in this state to the effect that §1346-4 GC, requires the entire decision to be incorporated in the notice of appeal. In our judgment the statute does not require, and we find no plausible reason for requiring, that the decision be set out verbatim. However, there are a number of Common Pleas Court opinions which take this view of the matter: Modern Builders, Inc., v. Collopy, Admr., No. 176443, Franklin County; Vera B. Roenker v. Board of Review, Franklin County, No. 176609; Ohio Seamless Tube Co. v. Millenbaugh, No. 31947, Richland County; In re Claim of Russell C. McKeever, No. 102129, Montgomery County; Thelma Holtkamp Gordon v. Board of Review, No. A-121258, Hamilton County. For an opinion contra, see Frigidaire Division v. Board of Review, case No. 100794, Montgomery County. We adopt the view taken by Judge Zimmerman in the Castleberry case in holding that statutes relating to appeals are remedial and should be given a liberal construction to the end that the right of appeal is not defeated. In support of this construction it is important to note that the Legislature, after the decision was announced in the Zier case, enacted §1345-33 GC, effective August 8, 1949, which provides:

“Secs. 1345-1 through 1346-4 inclusive GC, shall be liberally construed to accomplish the purposes thereof.”

See Amended Senate Bill No. 142, Vol. 123, Ohio Laws, page 197.

This Court, rather recently, in the unreported case of Detelich v. Department of Liquor Control, No. 4434, Court of Appeals, Franklin County, decided October 2, 1950, held that under §154-73 GC, which provides that the notice of appeal shall “set forth the order appealed from,” it was not necessary to set forth a true copy of the order.

In our opinion prejudicial error was committed in dismissing the appeal.

If we are correct in our judgment that the appeal should not have been dismissed no prejudicial error resulted in overruling appellant’s motion to amend the notice of appeal. The appellant is in court on the notice of appeal as filed. If we are incorrect in our judgment and if the jurisdiction of the Court was not invoked on the ground of an insufficient notice of appeal, no amendment of the notice of appeal could confer jurisdiction on the court for the reason that the statutory time within which a notice of appeal could be filed had expired. We find no prejudicial error resulting in the action of the court in refusing appellant permission to amend the notice of appeal.

Judgment reversed and cause remanded for further proceedings according to law.

HORNBECK, PJ, MILLER, J, concur.


author: Per CURIAM:

text:
    HECK, Plaintiff-Appellant, v. HLAVIN et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22045.
    Decided February 5, 1951.

      Hedrick & Hedrick, Cleveland, for plaintiff-appellant.
    A. A. Neiger, C. J. Koubek, Cleveland, for defendant-appellees.
    (STEVENS, PJ; HUNSICKER, J; DOYLE, J, of the 9th District sitting by designation.)
   OPINION

Per CURIAM:

This action was commenced in the Court of Common Pleas of Cuyahoga County by a petition which claimed triple damages for an alleged rent charge in excess of the claimed legal maximum rent as fixed under authority of the Federal Emergency Price Control Act.

The answer alleges that the premises were released from control under the act through the process of conversion proceedings from housing accommodations. The answer further pleaded an action in the Municipal Court of Cleveland brought by the defendant herein against the plaintiff seeking the possession of the rented premises because of the plaintiff’s refusal to pay a higher rent than that previously fixed for the premises as a housing accommodation, in which action the Municipal Court ordered by its judgment a restitution of the premises. The reply of the plaintiff admits the Municipal Court proceedings.

It was claimed by the defendants in the court below that from the pleadings he was entitled to a judgment of dismissal of the petition on the ground of res ad judicata because in the action of forcible entry and detainer the case was tried on the issue that the premises were not housing accommodations for which the legal maximum rent was $27.00 a month but were in truth and fact premises converted to commercial use and not subject to the rate of $27.50 but could be rented for the agreed rent of $85.00 per month and that the plaintiff’s refusal to pay the higher rate was sufficient to order an eviction which was accordingly directed.

Upon motion duly made the Common Pleas Court in consideration of this claim entered judgment for the defendant upon the pleadings.

From this judgment appeal was perfected to. this court.

In consideration of the claims made in this appeal on questions of law we are confronted with §10450 GC, which says:

“Judgments under this Chapter (Forcible Entry and Detainer) either before the justice, or in the Court of Common Pleas, shall not be a b.ar to a later action brought by either party.”

As stated by Pardee, J., in Price v. Jusande, 19 Oh Ap at page 22:

“This statute is an exception to the general rule relative to res adjudicata, and leaves open for further consideration in a proper court disputes between the parties growing out of the same subject matter * * *.”

In addition to the force of the statute, supra, it must further be observed that the action of the plaintiff in the trial court was one at law for damages under a federal emergency rent control act and the issues raised therein were not and could not have been litigated in an action in forcible entry and detainer in the Municipal Court.

If two actions do not involve the same claim, demand and cause of action ordinarily the doctrine of res adjudicata will not be given to the prior judgment.

“To constitute a bar there must be identity not only of the subject matter but also of the cause of action. In other words, a judgment in a former action does not bar a subsequent action when the cause of action prosecuted is not the same, even though each action relates to the same subject matter.” Norwood v. McDonald, 142 Oh St 299, at page 305.

It is the conclusion of this Court that the judgment of the court below in rendering judgment for the defendant on the pleadings was prejudicially erroneous; the judgment will be reversed and the cause remanded for new trial.

In consideration of the cross appeal of the defendant it is obvious that the dismissal of the cross-petition of the defendant Otillia L. Hlavin was error prejudicial to her.

The cause is remanded to the Common Pleas Court for trial in conformity to this opinion. Exc. Order see journal.