author: By MCCLELLAND, J. By McClelland, j.

text:
    BAUMAN, Exrx., Plaintiff, v. BAUMAN et, Defendants.
    Probate Court, Franklin County.
    No. 75790.
    Decided February 16, 1937.

      A. L. Richard, Columbus, for Cora Bauman.
    Kermit C. Sitterly, Lancaster, for defendants.
   DECISION ON APPLICATION FOR CONSTRUCTIONS OF WILL . .

OPINION

By MCCLELLAND, J.

This matter comes on to be heard upon the application of the Executrix herein for a construction by the Court of several phases of the will of the deceased, Lewis F. Bauman, and the Answers of other defendants herein. Upon consideration of the testimony, we find that the Plaintiff is the duly appointed and qualified Executrix of the Last Will and Testament of the deceased, who was her husband. The deceased died on or about the 26th day of November, 1935, leaving the Plaintiff as his surviving spouse, and also brothers and sisters and some other blood relatives. We find that the deceased left no children and that the, surviving spouse was the second wife of the deceased, which circumstances it is proper to take into consideration in the construction of the will of the deceased.

The particular portion of the will to which the Court’s attention is directed are Items 2 and 3 thereof, which are as follows:

“ITEM 2: I give, devise and bequeath all of my property, real and personal and mixed, to my wife, Cora B. Bauman, absolutely and in fee simple, except as hereinafter stated.”

“ITEM 3: Upon the death or remarriage of my said wife, Cora B. Bauman, I give and bequeath to my brother, William Bauman, the sum of Three Thousand Dollars ($3000.00), to my brother, Daniel Bauman, the sum of Three Thousand Dollars ($3000.00), to my sister Sophia Anneshensley, Three Thousand Dollars ($3000.00), to my sister, Sarah Hite, Three Thousand Dollars ($3000.00), to my sister, Clara Dilger, Three Thousand Dollars ($3000.00), to my niece Rhea Dilger, Six Thousand Dollars ($6000.00), to the West Rushville Burial Association Three Hundred Dollars ($300.00), to the Grace Lutheran Burial Ground west of West Rushville Three Hundred Dollars ($300.00), provided, however, that in case any one or more of the aforesaid legatees shall die before my death or before the death of my said wife, Cora B. Bauman, I give and bequeath his or her portion above specified to his or her heirs respectively, share and .share alike.”

The Petitioner takes the position that Item 2 of the will creates a fee simple estate in Cora B. Bauman, the surviving spouse, and that the provisions of Item 3 of the will is an attempted limitation upon the fee simple estate created by Item 2 thereof, and that the attempted limitation is an inoperative and invalid limitation.

Counsel for the Defendants take the position that Cora Bauman, the surviving spouse, takes a life estate in the property, and that the remainder is in the Defendants who are the persons named in Item 3 of the will.

The Court does not agree with counsel for either of the parties.

There are a great many rules of construction applicable to the interpretation of wills, two or three of which must be followed by the Court in the case at bar. The first, a cardinal rule of construction is that the will of the testator shall be ascertained by examining the entire will. Another rule which is applicable in the case at bar is that a will should be construed so as to dispose of the entire estate and not only a portion of it. A third rule is that wills should be construed so as to vest the title or estate as early as possible. With these three rules in mind, let us examine the two provisions of the will to which the Court’s attention has been directed.

In Item 2, the testator uses the following language:

‘T give, devise and bequeath all my property real and personal and mixed, to my wife Cora B. Bauman, absolutely and in fee simple, except as hereinafter stated”.

It would have been impossible for the testator to use language any more explicit than the language used in the above quoted item, in order to create a fee simple estate, had it not been for the last phrase thereof “except as hereinafter provided”.

In Item 3, he uses the following language: “Upon the death or remarriage of my wife Cora B. Bauman, I give and bequeath to, etc”. He then provides for a number of specific legacies to various relatives and to two institutions. There is no language used by the testator which either directly or inferentially limits the use of the corpus of the estate to the life time only of the surviving spouse. He gives his property to her both real and personal absolutely and in fee simple. If we should consider this language to be anything other than a fee simple estate there would necessarily have to be some specific provisions which would limit the estate to less than a fee simple.

Upon an examination of the language of Item 2 of the will, we cannot conclude that this creates' a limitation upon the estate which the surviving spouse has in the property of the testator. If it is a limitation at all it is a limitation upon the corpus of the property, but we cannot believe that it is such. The testator simply says that whenever his wife’s death occurs, or whenever she remarries, the amounts specified in Item 3, shall be paid to the respective persons and institutions therein named. In our opinion the provisions of Item 3 constitute nothing more nor less than specific legacies payable upon the remarriage or death of the surviving spouse.

In arriving at this construction we are following the principle of construction that estates should vest at the earliest possible time.

It is the contention of the defendants that the estate created in the surviving spouse is only a life estate. With this, of course, we do not agree as we have heretofore stated. If the estate be a life estate and the corpus or quantity of the estate is more than sufficient to satisfy the gifts made in Item 3, then that unconsumed portion would .not pass under the will, because there is no language creating a remainder; and in so construing the will we would be violating a rule of construction which would require us if possible to so construe the will as to dispose of the entire estate.

Upon a further examination of Item 2, we find that the devise of real estate to Cora Bauman is a general devise in fee simple. We also find that the bequest of personal property is a general bequest, also of an absolute title thereto.

When the testator used the words in the last phrase of Item 2, it is our opinion that he did not limit the estate which the deceased spouse took in his property, but that he intended to give it subject to the payment of certain legacies which he mentioned in Item 3. These legacies are specific legacies but not demonstrative, and being specific legacies, they are as a charge upon the personal property generally devised, and if the personal property generally devised is not sufficient to pay same, then the real estate generally devised is subject to the payment of same.

It is therefore our opinion that the bequest in money mentioned in Item 3 constitutes a charge upon the estate of Lewis F. Bauman, because the entire estate was a general devise and that the property shall be exhausted in the following order;

First, after the payment of debts, the personal property shall be exhausted.

Second, when that is exhausted, the real estate must be exhausted as far as necessary in order to pay the specific legacies.

In our opinion, the statement above answers the inquiry of the first paragraph of the second page of the Petition, except the second portion of the inquiry contained therein. As we have heretofore held, the real estate is subject to the charge for the payment of these legacies until the same are paid. The personal property of course is charged first, with the payment of the legacies, and in our opinion the same should be held intact until the death or remarriage of the widow, unless it should be necessary to consume the same in the payment of debts. In our opinion, the same should be held in trust during the lifetime of the widow, or until her remarriage, so that the same might be used for the satisfaction of the legacies mentioned in Item 3 of the will.

In the second paragraph of the second page of the Petition is contained the inquiry as to whether the widow should elect not to take under the will, but to take under the statute of descent and distribution. This is not a province of the Court. It is the duty of the Court to explain to the widow what she would receive under the will and what she received under the law, and then it is incumbent upon the widow herself to make her choice.

The Plaintiff further asks the Court to make a declaration or finding as to whether the sum of $405.36, deposited in the names of Lewis F. Bauman and Cora B. Bauman, in the Rush-ville Banking Company, is a part of the estate of the deceased, or whether it belongs to Cora B. Bauman.

Certain testimony was adduced at the hearing relative to the above named certificate of deposit. We have examined the documentary evidence pertaining to this certificate of deposit, but the same is not satisfactory to the Court. We have before us the notation of Mr. Fred B. Lewis, Cashier, stating that back about 1930, at Mr. Bauman’s request, his account was changed to a joint account with Cora Bauman, payable to either or the survivor and we took her signature for this purpose. This statement of Mr. Lewis that the account was changed to a joint account, is purely a conclusion. Before we arrive at a satisfactory answer to the inquiry pertaining to this deposit, it will be necessary that we have further evidence.

We have examined carefully the briefs filed by counsel for all parties relative to the questions at issue. We do not disagree with counsel as to the principles of law, but we do not believe that the cases cited are in point.

DECISION ON SUPPLEMENTAL HEARING

No. 75790. Decided June 14, 1947.

By McClelland, j.

This matter comes on to be heard on a supplemental hearing on the question as to whether or not the specific legacies were intended by the testator to be a charge upon the real estate passing under his will. We have heretofore made a finding that the legacies were a charge upon the deceased’s real estate. The real estate passed as a residuary devise under the will of Mr. Bauman. When the court made the decision it was made upon a different theory than those presented by either of the parties. The widow took the position that the will created in her a fee simple estate, and that the creation of the alleged legacy was an attempt to cut down a fee and therefore void. The devisees or legatees under the will take the position that they were the owners of the property, and that the widow had only a life interest in the same. This court held, however; that the money gifts were specific legacies and that they were a charge upon the real estate. The court could make no other finding in the light of the testimony which was before it at the time. We did suggest, however, that if Mr. Bauman’s circumstances at the time of writing his will were such as to indicate an intention not to charge the real estate with the payment of those legacies, the court would hear such testimony.

We have taken the testimony offered by the parties. We will not attempt to review the testimony as there is apparently no dispute whatsoever about the facts. We find that at the time of the execution of the will, Mr. Bauman was possessed of personal property and securities in an amount of more than enough to satisfy the legatees.

We have received testimony relative to Mr. Bauman’s financial transactions from the date of making his will up until the time of his death. The evidence of these transactions was received purely for the purpose of determining, if possible, his intent at the time of making the will. Even though the evidence adduced might have a tendency to show a change of intent for making the will, it cannot be used for that purpose. Such probative evidence must be used for the purpose of ascertaining the intention of the testator at the time the will was made and at no other time. We must apply the law as we find it to the case. It is our opinion that the law of Ohio pertaining to a situation such as we have in this case is properly stated by the Supreme Court in its decision in the case of Koontz v. Hubly, et al, reported in 111 Oh St at page 414. We will quote the syllabus of that case as follows:

“The rule of construction applicable to will, that where legacies are given generally and no fund is provided from which they are to be paid and afterward her residue of the real and personal estate is given in one mass of legacies constitute a charge upon the whole residuary estate, is not absolute. It is to be applied only in those cases where from the terms of the will and a consideration of all the circumstances it is fairly to be inferred that at the time the will was made the testator must have realized that he had no property out of which such legacies could be paid and that satisfaction out of the residuary estate is necessary.”

The above case also refers to Theobald v. Fugman, 64 Oh St 473, the second syllabus of that case is decisive of the question that we have before us in the Bauman case. The second syllabus reads as follows:

“2. Legacies not specifically charged upon real estate will, nevertheless, be held to be charged upon such real estate, and be a lien thereon, where it appears that the testator, at the time the will was made and at his decease, had no-moneys or personal estate of any kind out of which such legacies could be paid, unless a contrary intention is manifest, from the whole will.”

In view of these two decisions which seem to have not. been reversed, and applying them to the facts that we have,, we are compelled to come to the conclusion that Mr. Bauman at the time of making his will did not intend to charge his. real estate with the payment of the legacies. Our former opinion of that question will be revised in the light of the-new testimony.

An order may be drawn accordingly.


source: Caselaw Access Project

author: .By THE COURT.

license: Public Domain

text:
    DALGARN et, Plaintiffs-Appellees, v. LEONARD et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4287.
    Decided September 16, 1949.
    Joseph J. Poorman, Columbus, for plaintiffs-appellees. Addison & Carpenter, James B. Yaw, Columbus, for defendants-appellants.
   OPINION

.By THE COURT.

This is an appeal on questions of law from a judgment rendered in favor of the plaintiffs by the Probate Court of Franklin County, Ohio, in an action for a declaratory judgment.

In their petition plaintiffs allege that Wallace W. Leonard and Josephine Leonard, now deceased, were husband and wife and that prior to their marriage they entered into an ante-nuptial agreement whereby it was agreed that neither party would inherit from the other, but that their respective property would descend by right of inheritance to the next of kin of said decedent as though said surviving spouse did not exist.

In their amended answer the defendants allege that the parties entered into an antenuptial contract and allege the the terms of said contract to be similar to the terms of the contract alleged in the petition except that defendants further allege that the parties agreed that the contract could be cancelled by mutual agreement. The plaintiffs filed a reply denying the new matter alleged in the answer.

Upon trial, after statements of counsels were made, plaintiffs rested without the introduction of any evidence. The defendants thereupon filed a motion to dismiss plaintiffs’ petition for failure of proof. The first error assigned is the overruling of defendants’ motion to dismiss. The trial court properly ruled that all the material allegations set forth in the petition were admitted in the answer and that the defendants carried the burden to prove cancellation. The allegation in the answer with respect to cancellation did not constitute the answer a general denial or set up a different contract which would be construed as a general denial of the allegations in the petition. The execution of the agreement having been admitted the law presumes the continued existence of the contract. The party claiming that the contract had been terminated carried the burden of proof on this issue.

We have examined the record carefully and find no error prejudicial to the appellants on the admission or exclusion of evidence.

The appellants contend that the judgment was contrary to the manifest weight of the evidence and was not sustained by sufficient evidence. The Court finds the evidence to be very unsatisfactory in support of the contention that the agreement was cancelled by mutual consent of the parties. The trial court was required to rely on circumstantial evidence and draw inferences therefrom. This court may have-decided the issue differently had it been sitting as a trial court, but this is not a sufficient reason on which to base a reversal on the weight of the evidence.

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

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


author: By MILLER, PJ.:

text:
    CALVERT, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2034.
    Decided May 19, 1949.
    C. A. Faulkner, Rex W. Hanna, Kenton, for plaintiff-appellee.
    Herbert S. Duffy, Atty. Geni., Hugh P. Brennan and T. Vincent Martin, Asst. Attys. Geni., Columbus, for defendant-appellant.
   OPINION

By MILLER, PJ.:

This is an appeal from a judgment of the Court of Common Pleas for Montgomery County awarding a death benefit against the Industrial Commission of Ohio, the defendant-appellant. Numerous errors are assigned all of which relate to the sole question whether the deceased was an employee of the Commercial Motor Freight Company, Incorporated, at the time of his death, it being admitted that the company was amenable to the provisions of the Workmen’s Compensation Act.

The record discloses that on July 13, 1942, and for some time prior thereto James Calvert, the decedent, had been driving a tractor or truck for one Floyd Lynn, who had made certain oral arrangements whereby the tractor operated by the decedent was coupled to trailers owned by the Commercial Motor Freight Company, Incorporated, and by means of which commodities were transported between certain designated points in the State of Ohio. The Public Utilities certificates :and interstate commerce plates used on the equipment involved were owned by the Commercial Motor Freight Company, Inc., while the ownership of the tractor and of the registration plates thereon rested in Floyd Lynn. Under the agreement between Floyd Lynn and the Commercial Motor Freight Company, Inc., Floyd Lynn was required to bear the expenses incident to operating his tractor in transporting freight over designated routes, including the driver, while the Commercial Motor Freight Company, Inc., stood the expenses involved in maintaining and operating their trailers which might be coupled to Lynn’s tractor at any particular time. While transporting commodities under this arrangement James Calvert was fatally injured.

It is the claim of the defendant that the deceased was in the employ of Floyd Lynn and that his relationship to the Commercial Motor Freight Company, Inc., was that of an independent contractor. Whether one is an independent contractor or an employee depends upon the facts in each case. The principal 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 relationship 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. Gillum v. Industrial Commission, 141 Oh St 373. With reference to the right of the Commercial Motor Freight Company, Inc., to control the manner or means of doing the work there is a conflict in the testimony, but there is substantial evidence in the record that under the agreement Lynn exercised no. control over the decedent in the performance of his work; that all he did was to furnish the tractor, the fuel, repairs for the same and the driver; that thereafter the driver was subject to the orders of the dispatcher of the Freight Company as to where and when he should proceed; that he was at. the complete, disposal of the Freight Company with Lynn exercising no jurisdiction over him; that the Freight Company required all drivers to observe their rules and those of the Public Utilities Commission of Ohio in the operation of their trucks; that upon failure to comply the contract could be terminated.

Plaintiff’s Exhibit No. 1 is a letter written to the deceased by the Freight Company which refers to him as one of “our safe drivers”. Plaintiff’s Exhibits 2 and 3 are safe driver’s cards issued to the deceased by the Freight Company, of which Exhibit 2 states that he “* * * has operated a Commercial vehicle for this firm-miles in one year without a chargeable accident as determined by the employer.” Plaintiff’s Exhibit 3 is similar to Exhibit 2, only it covers a different year.

The facts in this case are almost identical with Bobick v. Industrial Commission, 146 Oh St 187, and it was there held that the facts were sufficient to establish the relationship of employer and employee. We therefore hold that there is sufficient evidence in the record to support the judgment and the same is affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By McNAMEE, J:

text:
    CLEVELAND (City), Plaintiff-Appellee, v. GORMAN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21432.
    Decided November 14, 1949.
    Lee C. Howley, Director of Law, James M. McSweeney, Asst. Director of Law, Cleveland, for plaintiff-appellee.
    Frank T. Cullitan, County Pros., R. W. Edwards, Asst. •County Prosecutor, Cleveland, for defendants-appellants.
   OPINION

By McNAMEE, J:

This appeal is from a judgment of the Common Pleas Court in favor of the City of Cleveland (hereinafter referred to as -the ‘City’) and against the Board of County Commissioners of Cuyahoga County (hereinafter referred to as the ‘Commissioners’) in the sum of $1,442,165.37. The judgment represents the amount expended by the City for the care, maintenanee, education and support of delinquent children committed by the Juvenile Court of Cuyahoga County to Hudson Boys Farm School from August 19, 1937 to August 31, 1947, and to Blossom Hill School for Girls from October 31, 1949 to April 30, 1945. Both of these institutions are now and since their establishment have been owned and operated: by the City and supported by taxes raised by the municipality.

The issue presented by this appeal is whether under the-provisions of §1639-34 GC, and §1639-57 GC, the Commissioners-are liable for expenditures made by the City for the care, maintenance, support and education of delinquent children, committed by Juvenile Court to correctional institutions of' the municipality where no appropriations of county funds have been made by the Commissioners or requested by the-Juvenile Court for such purposes and where the Juvenile-Court has neither authorized nor approved payment of such, expenditures to the City.

The facts are not in dispute. More than forty years ago-the City established a boys farm at Hudson, Ohio. Several years later Blossom Hill School for Girls was established by the City at Independence, Ohio. Throughout the years these-institutions have been used exclusively for the custodial care, reformation and discipline of wayward boys and girls committed thereto by the Juvenile Court of Cuyahoga County.

The Bureau of Inspection and Supervision of Public Offices.made findings against the Commissioners in favor of the-City for the cost of operating and maintaining these institutions in the amounts and for the periods hereinabove noted. The findings of the Bureau are based upon Attorney General’s Opinion No. 4228 (1941) in which it was held that §1639-34 GC, and §1639-57 GC (effective Aug. 19, 1937) imposed upon Cuyahoga County the duty of bearing the expenses of the care, maintenance, education and support of' delinquent children committed to correctional institutions of the City since the effective date of the new Juvenile Court, Act.

Sec. 1639-57 GC reads:

“Appropriation for expenses of the Court and maintenance etc., of children: It is hereby made the duty of the county commissioners to appropriate such sum of money each year as will meet all the administrative expense of the court exercising the powers and jurisdiction conferred in this chapter, including reasonable expenses of the judge and probation-officers in attending conference at which juvenile or welfare problems are discussed, and such sum each year as will provide for the care, maintenance, education and support of the neglected, dependent and delinquent children, other than ■children entitled to aid under the aid to dependent children law, §1359-31 et seq, GC, and for necessary orthopedic, surgical and medical treatment, and special care as may be authorized by such court for any neglected, dependent or ■delinquent children as herein provided. All disbursements from such appropriations shall be upon specifically itemized vouchers, certified to by the judge of the court.” (effective 8-19-37)

The only duty imposed upon the Commissioners by the above quoted section is to appropriate the funds required by the Juvenile Court for the various purposes referred to therein. That duty has been performed.

Sec. 2460 GC provides:

“No claims against the county shall be paid otherwise than upon the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law or is authorized to be fixed by some other person or tribunal, in which case it shall be paid upon the warrant of the county auditor, upon the proper certificate of the person or tribunal allowing the claim. No public money shall be disbursed by the county commissioners, or any of them, but shall be disbursed by the county treasurer, upon the warrant of the county auditor, specifying the name of the party entitled thereto, on what account and upon whose allowance, if not fixed by law.” (Emphasis supplied.)

The Commissioners possess no authority to approve or allow claims against the County on account of any of the matters referred to in §1639-57 GC, and it is manifest that the Juvenile Court is the only “person or tribunal” empowered to incur obligations on behalf of the County for such purposes.

The last paragraph of §1637-34 GC which is pertinent reads:

“Any expenses created by the court for the care, maintnance and education of dependent, neglected or delinquent children or for orthopedic, medical or surgical treatment or special care of such children under the provisions of this chapter, except such part thereof as may be paid by the state or federal government, shall be paid from the county treasury upon specifically itemized vouchers certified to by the judge of the court.” (Emphasis supplied.) (effective 8-19-37)

The foregoing section also provides that the Juvenile Judge may order parents who are financially able to do so, to pay the expenses incident to the care of children committed by the court. The record discloses that some payments were made by parents of children committed to the Municipal institutions and that these payments were received by the City.

In his opinion, the Attorney General reasons that by virtuof the terms of the last paragraph of §1639-34 GC, quoted above, all expenses not borne by parents of children committed to Municipal correctional institutions must be paid out of the county treasury. Reduced to the terms of a syllogism, the reasoning of the Attorney General may be stated as follows:

Major Premise: — the last paragraph of §1639-34 GC imposes the liability upon the County for all expenses connected with the care, maintenance, support and education of children committed by Juvenile Court except such part thereof as may be paid by the state or federal governments. Minor Premise: —the City paid the expenses resulting from the commitment by Juvenile Court of delinquent children to the Hudson Boys Farm and Blossom School for Girls, no part thereof being paid by the state and federal governments. Conclusion:— the City is entitled to reimbursement from the County for such expenses. The conclusion is wrong because the Major Premise is wrong. This may be demonstrated by a consideration of the strange and unusual circumstances that would follow from an acceptance of the Attorney General’s conclusion as valid.

Sec. 1639-30 GC (effective August, 1937) which enumerates the institutions to which neglected and dependent children may be committed, reads:

“2. Commit the child to a suitable public institution or agency or to a suitable private institution or agency incorporated under the laws of the state, approved by the state department of public welfare and authorized to care for children or to place them in suitable family homes.”

By the terms of the foregoing section, the Juvenile Judge may commit delinquent children to institutions supported by private charity as well as to those maintained by public funds. It is a matter of general knowledge that the Juvenile Judge frequently makes commitments to such private institutions. If, by virtue of the terms of §1639-34 GC a municipality is entitled to reimbursement of expenses resulting from the commitment of children to its correctional institutions by the Juvenile Judge, then under similar circumstances all the private charitable institutions to which such children are committed also would be entitled to reimbursement for the expenses resulting therefrom.

Sec. 1639-34 GC makes no reference to either private or public institutions, consequently it makes no distinction between them. No preferential right to payment is granted to municipalities. If the County is liable for all expenses (except that part paid by the state and federal governments) it is liable to all institutions who have been put to expense by reason of the commitment of neglected, dependent and delinquent children thereto by the Juvenile Court. This would impose upon counties the enormous financial burden heretofore voluntarily assumed by the numerous private and public charitable institutions throughout the State. Manifestly no such radical legislative purpose can be read into the language of the statute.

“The legislature will not be presumed to have intended to enact a law producing unreasonable consequences.” 37 O. Jur. 644.

The plain and evident purpose of the statute is to obligate the County only for such expenses as are authorized and approved by the Judge of the Juvenile Court.

Any ambiguity in the language of the 1937 Act that may have cast doubt upon the legislative purpose in this regard was dispelled by the amendment of September 5, 1941. As noted above, §1639-34 GC in' its original form provided that “any expense created by the court * * * shall be paid out of the county treasury.” The 1941 amendment substituted the word “ordered” in lieu of “created” thus clarifying the intent of the legislature that payments out of the county treasury were to be made only for such expenses as were authorized by the judge of the Juvenile Court. In the context of the original statute, the word “created” may be understood in the sense of “authorized.” It is in this sense that the word “ordered” is used in the amendment.

“The presumption is that every amendment of a statute is made to effect some purpose. * * * That purpose may be either to alter the operation and effect of earlier provisions or to clarify the meaning thereof.” 37 O. Jur. 769; Thomas v. Huesman 10 Oh St 152; Knox County v. McComb, 19 Oh St 320; Cincinnati v. Holmes, 56. Oh St 104, 46 N. E. 514; Lytle v. Baldinger, 84 Oh St 1, 95 N. E. 389. Ann. Cas. 1912b 894.

There can be no doubt that the amendment was intended to and did clarify the meaning of the language of the 1937 Act. Additional proof of this is to be found in the following sentence which was added to §1639-34 GC by the amendment of Sept. 5, 1941:

“The court shall not be responsible for any expense resulting from the commitment of children to any home, welfare board or other institution, association or agency, unless such expense has been authorized by the court at the time of commitment.” (Emphasis supplied.)

This portion of the amendment in clear and positive terms makes the authorization of the Juvenile Court at the time of commitment a condition precedent to the accrual of liability against the County for expenses resulting from the commitment of children to any institution.

In both the original act, and the amendment to §1639-34 GC, as well as in §1639-57 GC, certification by the Juvenile Judge of “specifically itemized vouchers” is an essential prerequisite of payment out of the County treasury. It does not appear that such vouchers covering the expenses resulting from the commitment of children to the Hudson Boys Farm and the Blossom Hill School for Girls were certified for payment by the Juvenile Judge nor does it appear that such expenses were ‘“created” by the Court. There is no evidence of any authorization of such expenses by the Court concurrently with the commitment of delinquent children since the effective date of the 1941 amendment. The absence of these essential elements of a valid claim against the County is conclusive against the right of the City to reimbursement.

State ex rel Clark v. Board of County Commissioners, 131 Oh St 16, lends no comfort to the cause of the City. That case involves an action in mandamus in which the Supreme Court held that it was the duty of the Commissioners to appropriate a sum of money sufficient to meet the administrative expenses of Juvenile Court. No question of the liability of the County for expenses resulting from the commitment of delinquent children was involved. It is of interest, however, that Judge Zimmerman in commenting upon the purpose of §1639-57 GC said:

“In recent years there has been an increasing solicitude on the part of the State for wayward, unfortunate and neglected children. Through legislative action the Juvenile Court has been made responsible to an important extent for improving the environment and surroundings of these potential citizens and to correct unfavorable conditions besetting them, not only for the advantage of the individual child but for the-benefit of the state as well.” (State ex rel Clark v. Board of County Commissioners, at page 18.)

The views herein expressed are in harmony with the-foregoing observations of the Supreme Court. The legislature-has granted to the Juvenile Court authority commensurate-with its enlarged responsibility for the welfare of neglected, dependent or delinquent children. The court may obligate the county for the payment of expenses necessary to the proper discharge of its responsibility but it is not contemplated that such action will be taken where the welfare of such children is subserved adequately by their commitment, to private or municipal institutions that voluntarily assume the expenses resulting therefrom.

We are of the opinion and hold that the county is not. liable for expenses resulting from the commitment of delinquent children to correctional institutions of the City unless such expenses have been authorized and approved by-the Juvenile Judge at the time and in the manner specified' in §1639-34 GC.

For the reasons hereinabove stated the judgment of the-Common Pleas Court is reversed and final judgment is entered for defendants appellants. Exc. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By WISEMAN, J.:

text:
    DEERCREEK LOCAL BOARD OF EDUCATION, Plaintiff-Appellant, v. PAYNE et al., Defendant-Appellee.
    Ohio Appeals, Second District, Madison County.
    No 169.
    Decided August 30, 1949.

      Frank J. Murray, London, for plaintiff-appellant.
    H. H. Crabbe, D. H. Jackman, London, for defendants-appellees.
   OPINION

By WISEMAN, J.:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Madison County in an appropriation proceeding instituted by Deercreek Township Board of Education for the purpose of acquiring three lots for playground purposes in the unincorporated Village of Lafayette, Madison County.

The land appropriated is described as Lots Numbered 42, 43 and 44 upon the recorded plat of the Village of Lafayette. These lots are contiguous and have no improvements thereon. The lots extend in an easterly and westerly direction and front on West Street, which extends in a northerly and southerly direction across the easterly end of said lots. South of said lots, and separated by a public alley, are Lots Numbered 5, 6 and 7, which extend in a northerly and southerly direction and front on U. S. Route 40. The rear of these three lots abuts on the aforementioned alley. The famous Red Brick Tavern is located on Lot No. 7. The land taken, and the last mentioned lots, are owned by the defendant-appellee, Nellie ‘S. Payne.

The jury assessed as compensation for lots numbered 42, 43 and 44 the sum of $4,500.00 and allowed as damages to lots numbered 5, 6 and 7 the sum of $4,000.00.

The principal error assigned is that the court erroneously assumed, in its charge to the jury, that lots numbered 42, 43 and 44, 5, 6 and 7, constituted one tract of land and, also, erroneously considered lots numbered 5, 6 and 7 as the residue of the tract from which the land appropriated was taken. The court charged as follows:

“After determining the value of the part actually taken you will next determine the damages, if any, to the residue of the tract other than that taken, which will be occasioned either by the severance therefrom of the part taken or the use for which the appropriation is made, or both.”

And again:

“It is your duty to determine and ñx the value of the property taken, and the damage to the residue, from the testimony and the evidence alone.”

And with reference to the verdict the court charged as follows:

“There will be but one form of verdict furnished you in this case. It is simple and self-explanatory. In the line indicated for that purpose you will place in dollars and cents the amount which you find to be the value of the land taken, and then on the line indicated for such purpose you will place in dollars and cents the amount of damages which you find resulting to the residue of the premises, and on the next line total these two sums.”

It is apparent that the court failed to submit the above mentioned question of fact for determination by the jury.

Sec. 4834-11 GC provides that appropriation proceedings applicable to municipalities shall apply. Appropriation of private property by municipalities is controlled by §3677 GC et seq.

The rule is well established that in appropriation proceedings the landowner is entitled to compensation for the land taken and damages, if any, to the remaining property as a result of the taking. Grant v. Village of Hyde Park, 67 Oh St 166, 65 N. E. 891; Vol. 15 O. Jur., Page 791, Section 99. The rule assumes that there is a part of the tract remaining after the land appropriated has been taken. The question to determine is whether the facts in this case bring it within the rule. Do lots numbered 5, 6 and 7 constitute the remaining portion of one single tract? In Vol. 15 O. Jur. Page 792, Section 101, the following statement is found:

“The mere fact that other land adjoins the land taken, and is owned by the same person, does not make it remaining land, whether it is farm land or city lots. But if other land which adjoins, and is owned by the same person, is used in connection with the land taken for a single purpose or business, it is remaining land, and damages may be had for damage caused thereto by the appropriation, whether the property is farm land or city lots.”

In Vol. 29 C. J. S., Page 981, Section 140, the headnote is as follows:

“Where several contiguous lots or tracts constitute an entire parcel used for a general purpose by the owner, all injuries which may be caused to the entire body of the land by the taking of a part may be considered; but, even where lands are contiguous, the owner is not ordinarily entitled to damages accruing to tracts which are separate and distinct from the lands taken.”

On page 982 the text is as follows:

“To constitute a unity of property within the rule, there must be such a connection or relation of adaptation, convenience, and actual and permanent use as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcels left, in the most advantageous and profitable manner in the business for which they are used. If the separate tracts of whieh a part of one is taken are not put to a joint use, they, cannot be considered as one parcel in assessing damages to the land not taken, and this is especially true where the tracts are separated by a street, or a watercourse.”

In the case at bar the lots appropriated, and the lots remaining, abut on either side of a public alley. The fact that the alley separated the two blocks of lots did not necessarily establish the two blocks of lots as separate tracts. The use to which the lots were put determines whether it was one tract or two separate tracts. Unity of use is the principal test. There was convincing evidence presented to the effect that the lots taken were not used in connection with the operation of the Red Brick Tavern. There was ample evidence from which the jury could find that there was no unity, physical or functional, between the lots taken and the lots remaining. Whether the lots taken and the lots remaining were used for one common purpose so as to constitute a single tract was a factual matter to be determined by the jury under proper instructions. Seither v. City of Cleveland, 17 C. C. N. S. 552, affirmed without opinion in 86 Oh St 357, 99 N. E. 1123; Chicago and E. R. Co. v. Hoffman, 119 N. E. 169 (Ind.); Charleston and South Side Bridge Co. v. Comstock, 15 S. E. 69 (W. Va.); Sharp v. United States, 191 U. S. 341, 354; Vol. 29 C. J., page 1297, 1298, Sec 289; Vol. 18 Am. Jur. 1004, Sec. 362. In the instant case the charge to the jury assumed the existence of a material fact which was in dispute. The error was one of commission and not of omission. In so charging the court invaded the province of the jury and committed reversible error. Plotkin v. Meeks, 131 Oh St 493, 499, 3 N. E. 2d. 404; Vol. 39 O. Jur., page 997, Section 292.

The appellant contends that the court charged incorrectly as to the burden of proof. The court charged as follows:

“This sort of case is different from the ordinary jury trial in that there are no issues in the normal sense of the term, and no burden of proof in regard to the evidence.”

The appellant contends that on the question whether the two blocks of lots were used for a common purpose and constituted a single tract, the landowner carried the burden of proof; and that the landowner carried the burden of proof to prove the damage to the residue, if all the lots were found to constitute a single tract. In Martin v. City of Columbus, 101 Oh St 1, 127 N. E. 411, the court held:

“An action brought by a municipality to condemn private property under the constitution and laws of Ohio is a proceeding in rem.

In such proceeding, there are no formal pleadings or definite issues, which admit of affirmation upon one side and denial upon the other, and hence the doctrine of ‘burden of proof’ has no application.

The jury acts merely as an appraising or assessing board, determining the fair market value of the property from all the evidence submitted.”

This rule has been followed in Kraemer v. Bd. of Edn., 8 Oh Ap 428; Muccino v. B. & O. Rd. Co., 33 Oh Ap 102, 104; 168 N. E. 752; City of Bellevue v. Stedman, 63 Oh Ap 150, 153; 25 N. E. 2d 1695; City of Cincinnati v. Tuke, 70 Oh Ap 47, 49, 44 N. E. 2d 748. For a contrary holding see Holtsberry v. State, ex rel., 14 Oh Ap 86. In Bank of Edenton v. United States, 152 Fed. (2d) 251, (U. S. C. C. A., 4th Circuit, North Carolina) at page 253, the court makes this statement:

“It may be noted that the entire conception of the burden of proof does not lend itself too readily to application in condemnation proceedings, and in at least one jurisdiction, it has been entirely rejected. Martin v. City of Columbus, 101 Oh St 1, 127 N. E. 411.”

A distinction must be made between burden of proof and the right to open and close the case, a right conferred upon the landowner by §3684 GC. It does not follow that the landowner carries the burden of proof on any issues or that there is a burden of proof in such a proceeding.

On the question of proof of damages the general rule is that the burden to prove damages rests on the landowner, Vol. 29 C. J. S. 1257, Sec. 271 (cases cited). However,, the rule in Ohio is contrary to the general rule. Martin v. City of Columbus, supra. We have no hesitancy in applying the principle of law announced in the Martin case to the question of proof of damages to the residue of the tract, if there was a residue. On this matter we definitely hold that there is no burden of proof resting on either party. However, the question presented for determination is not related solely to the proof of damages to the residue; the issue is clearly made by the evidence as to whether Lots 5, 6 and 7 constituted the residue of a single tract. It is important to point out that this question was not raised in the Martin case. The court in that case had before it only the question as to the burden of proof with respect to compensation. That the court in the Martin case was considering only the matter of compensation for the land to be taken is gathered from the concluding paragraph of the opinion, beginning at the bottom of page 11 :

“Clearly we have in the action at bar a proceeding in rem, a proceeding to take this specific property by an inquiry before a jury in order to make full compensation at the fair market value of the property. It is a proceeding in rem because it relates solely to the question of ascertaining or assessing the fair market value of the property, in order to make compensation to the owner, which is done solely in order to enable the public to get title and possession of the property for the public use. The jury serves merely as an assessing board or appraising body to fix the value, wholly apart from any formal technical issues or rules touching the proceedings, whether raised by pleadings or proof. This proceeding does not ádmit of any definite, formal, technical issue touching value. It therefore does not admit of the technical doctrine relating to burden of proof.” (Emphasis ours.)

In the instant case the issue whether Lots 5, 6 and 7 constitute the residue of a single tract was clearly made and its determination is not affected by the question of compensation or damages. The jury was first required to determine whether there was a residue, and, if so, then determine the damages, if any, to the residue by reason of the taking of a part of the tract. In our opinion the question of damages and the issue as to whether there is a residue are so dissimilar as to require the application of a different principle of law. The condemnor filed this proceeding to appropriate Lots 42, 43 and 44 as a tract. The appellee contends that she owns Lots 5, 6 and 7 and that all six lots were devoted to a common purpose and constituted a single tract. The appellant contends that Lots 5, 6 and 7 were not used in common with Lots 42, 43 and 44 and did not constitute a residue of a single tract. Prima facie the two blocks of lots were separate parcels. Vol. 8 Am. Jur. 912. Under the circumstances we are persuaded to apply the general rule that he who asserts the affirmative of an issue has the burden of proving it. We are of the opinion that on this issue the court should have charged the jury that the burden of proof was on the appellee, the landowner. In support of this conclusion we cite the following: Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick, 124 A. L. R. 897, 908, 201 Minn. 442, 277 N. W. 394; Pittsburgh C. C. and St. L. Ry. Co. v. Crockett, 106 N. E. 875 (Ind.); Illinois Power and Light Company v. Talbott, 152 N. E. 486, 490, 321 Ill. 538; Essex Storage Electric Company, Inc. v. Victory Lumber Company, 108 A. 426, 93 Vt. 437. See Vol. 29 C. J. S. 1257 and cases cited.

We find no prejudicial error in the record relative to the admission of evidence.

It is urged that the verdict is not sustained by the evidence and is contrary to the manifest weight of the evidence. There was evidence submitted on the question whether all the lots constituted a single tract, and on the question of value of the lots taken and, also, as to damages to Lots 5, 6 and 7. There was a wide diversity of opinion expressed by the witnesses as to values and damages. Whether upon the theory that the trial judge was correct in submitting the matter to the jury under the instructions given, or upon the theory expressed by this court, we cannot conclude that the verdict is not sustained by the evidence or that it is contrary to the manifest weight of the evidence.

For errors in the charge the judgment is reversed and the cause remanded for further proceedings according to law.

MILLER, PJ, and HORNBECK, J, concur.


author: By MATTHEWS, J.:

text:
    ROSS, Plaintiff-Appellee, v. STRICKER, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7045.
    Decided April 4, 1949.

      Doyle, Tomlin & Doyle, Cincinnati, for plaintiff-appellee.
    C. R. Beirne, Cincinnati, for defendant-appellant.
   OPINION

By MATTHEWS, J.:

This action arose as the result of a collision between two automobiles one of which was operated by the plaintiff and the other by the defendant. The plaintiff claimed damages on account of personal injuries. The defendant, by cross-petition, asked for compensation on account, of personal injuries and for the damage to his automobile. As the result of a trial, a jury found for the plaintiff on all issues and assessed his damages at $5000.00. Judgment was entered on this verdict, to which the defendant excepted. Within the time allowed by law, the defendant filed a motion for a new trial. On consideration of this motion, as shown by the journal entry, the court gave the plaintiff the alternative of accepting a remittitur of $1100.00 from the verdict within three days, or of having the court grant a new trial, to which the defendant excepted. The plaintiff immediately accepted the remittitur, and thereupon the court overruled the motion for a new trial and entered judgment for the plaintiff for $3900.00. It is from that judgment that this appeal was taken. At the outset, the plaintiff-appellee claims that the defendant-appellant is precluded from questioning the validity of this judgment, by reason of the circumstances under which it was rendered and its satisfaction as shown by the record. That contention requires first consideration.

The journal shows that on the same day that the judgment was entered, there was spread upon the journal a recital, as follows:

“Fred Strieker, defendant herein having thru the Auto-Owners Insurance Company of Lansing, Michigan, paid to the Clerk of Courts of this Honorable Court, the sum of Thirty-Nine Hundred ($3900.00) Dollars and costs, in full satisfaction' of the judgment rendered herein, said Clerk is hereby authorized and directed to pay over to the said M. Richard Doyle, resident guardian of the Estate of Gerald Ross, a minor, said sum of Thirty-nine Hundred ($3900.00) Dollars.”

Later, a motion was made to correct the recitals of this entry, stating or implying that the defendant had paid or participated in this settlement of the plaintiff’s judgment. That the court had jurisdiction to correct the entry of satisfaction upon this motion is not questioned. 23 O. Jur., 1353. Kipp v. Bowman, 20 Abs, 698, at 702. Upon a hearing of this motion, the court found that the defendant did not consent to the entry of satisfaction and, therefore, set the entry aside and made an order in accordance with the facts as found by it as follows:

“It is further ordered that the judgment heretofore rendered herein in the amount of Three Thousand Nine Hundred and 00/100 ($3,900.00) Dollars and court costs having been fully paid and satisfied by the Auto-Owners Insurance Company of Lansing, Michigan, as the Liability insurer of the defendant, Fred Strieker, by virtue of the right of said insurance company to pay said judgment under the terms of its insurance contract with the said Fred Strieker, satisfaction may be entered of record.”

The plaintiff excepted to this order but no appeal therefrom was taken by either party. However, the evidence introduced on the hearing of this motion is before the court in a bill of exceptions presented by defendant. The bill contains .ample evidence to support the ruling of the court on this motion to correct the recital of satisfaction so as to exclude the implication that the defendant’s claim against the plaintiff was included in the settlement.

In the light of the evidence it is clear that the attorney of record had no express authority or direction to settle the defendant’s claim or intention so to do, but, on the contrary, was instructed by defendant to appeal any adverse judgment. .And the evidence shows that counsel for plaintiff knew of that limitation upon the authority of defendant’s counsel of record and of his intention not to exceed it, and he also knew that the settlement of the plaintiff’s claim was being made by Auto-Owners Insurance Company that had issued to •defendant a policy of indemnity against liability under certain circumstances and to a limited extent which authorized it to settle the plaintiff’s claim without the defendant’s consent. By the terms of the policy, Auto-Owners Insurance Company was obliged to defend this action and the defendant agreed to cooperate in its defense which clearly included authority to attorneys selected by Auto-Owners Insurance •Company to appear and defend for and on behalf of the defendant. However, this authority was not coupled with any interest and was revocable at defendant’s discretion. If he had chosen to do so, he could have refused to authorize Auto-Owners Insurance Company and its attorney to represent him and defend the action, and having given authority could have withdrawn the authority and discharged the attorney at any time. It is true that by so doing, he would have violated a condition of the policy and forfeited his right of indemnity, but that presents no limitation upon his power to withhold or withdraw authority. Luntz v. Stern, 135 Oh St, 325. And where the amount claimed by the plaintiff exceeds the amount of the policy the insured may protect himself against that liability notwithstanding the policy gives the insurer the exclusive right to defend without interference, and by so doing the insured does not forfeit his right to indemnity to the limit of the policy. Traders & Gen. Ins. Co. v. Rudco Oil & Gas Co., 129 Fed. (2d) 621, 142 A. L. R. 799.

The case at bar differs from that of Long v. Union Indemnity Co., (Mass.) 79 A. L. R., 1116, in that in that case the Court was considering the effect of an authority already exercised which was brought in question in an independent action by the insured against the third person with whom the insurer had effected a settlement. The insured having consented or acquiesced in that settlement was, of course, bound by it and could not, as the court held thereafter, maintain an action against the third person.

We think it clear also that where the insured permits the insurer to defend, its obligation requires it to exercise good faith and due care and skill, and certainly would not authorize a settlement to insured’s prejudice where no liability existed. Anderson v. Southern Surety Co., 71 A. L. R., 761, and Attleboro Mfg. Co. v. Frankford M. Acci. & P. G. Ins. Co., 240 Fed. 573.

The record in this case shows that the parties recognized that the authority of Auto-Owners Insurance Company was not unlimited. The defendant asserted that he was under no liability to the plaintiff and to the contrary that the entire liability rested upon the plaintiff and refused to authorize a settlement that would in any way affect his right to assert his action against the plaintiff; and the plaintiff knew of this position of defendant, and he and Auto-Owners Insurance Company limited the settlement in such a way as to release Auto-Owners Indemnity Company alone. The defendant was nót a party to that settlement and while it prevents the plaintiff from asserting any further action against the defendant, it had no effect upon the defendant’s cross-action against the plaintiff or upon the plaintiff alleging in his answer and proving at any subsequent trial the facts set forth in his petition.

We conclude that the trial court did not err in setting aside the entry of satisfaction and that the record does not show a settlement or satisfaction of the defendant’s cause of action, that his cross-action has not become moot and that the settlement by Auto-Owners Insurance Company of the plaintiff’s cause of action is no bar to the prosecution of this appeal by the defendant. We, therefore, turn to a consideration of the record to determine whether any substantial error to defendant’s prejudice intervened in the trial of the issues raised by defendant’s cross-petition and the plaintiff’s answer thereto.

(1) The automobiles that collided were being operated at. the times by the plaintiff and defendant in opposite directions on Vine Street, a public thoroughfare constituting the dividing line between the City of Cincinnati and an unincorporated portion of Hamilton County, Ohio. One of the charges of negligence made by plaintiff against the defendant was:—

“In driving defendant vehicle to the left of the center line while overtaking and passing traffic proceeding in the same direction as was defendant and at a time when the left side-of the roadway was not clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completed without interfering with the safe operation of plaintiff vehicle approaching from the opposite direction.”

Among other charges of negligence made by defendant in his cross-petition against the plaintiff was:—

“In operating said Pontiac automobile to his left of the center line of Vine Street, contrary to thé provisions of the State Statute then in full force and effect.”

Each pleader alleged various details to serve as a predicate for the conclusion, which each alleged, that is, that operating a vehicle to the left of the center was negligence, but the act which each alleged against the other as having been done negligently was operating his automobile to the left of the center of the street respectively. The other acts which were alleged to have been negligently done, it is not necessary to consider.

The only real difference between the counter-charges made by the parties in their pleading is that the plaintiff negatived a possible justification for going to the left of the center, that is, in overtaking and passing traffic proceeding in the same direction. The general rule imposed by §6307-25 GC, is that vehicles shall be driven upon the right side of the road. There are exceptions stated in that section, one’ of which permits a driver to cross to the left side when overtaking and passing another vehicle proceeding in the same direction, and §6307-29 GC, limits that right by providing that it shall not be done unless such left side is clearly visible and free of oncoming traffic for a sufficient distance to permit the overtaking and passing without interfering with the oncoming traffic. The plaintiff alleged that the defendant was negligent in operating his automobile on the left side of the street and then in anticipation of defendant’s assumed attempt to justify by the claim that he was engaged in overtaking and passing a vehicle going in the same direction, pleaded the non-existence of the facts that would justify him in so doing.

The evidence shows that there was a third automobile in the vicinity. The defendant had passed it, and it was so close that after the collision between the plaintiff and defendant’s automobiles, it struck the defendant’s automobile before the driver, according to his testimony, was able to stop it, although he was going only 20 miles per-hour, but he estimated that the defendant’s automobile could have been anywhere from twenty to fifty feet in front of his automobile. The impression is created that the passing and the collisions occurred in a very short space of time, so short that he “saw this condition, it occurred and 1 was on my brakes.” The collision between his automobile and that of the defendant was “not too hard because I had almost stopped.” When the automobiles came to rest, the plaintiff’s automobile was on his right side of the street and the front of the defendant’s automobile was also on that side. Whose automobile was on the wrong side of the street before and at the time of the collision, and whether the intervention of the third automobile had anything to do with the final resting place of the parties was in dispute and dependent upon what inferences were drawn from many circumstances.

The plaintiff requested and the court gave the following special charge:—

“1 charge you as a proposition of law the law of Ohio provides that violation of a statute passed for the protection of the public is negligence in and of itself. Sec. 6307-29 GC is a statute passed for the protection of the public. Such §6307-29 GC provides as'follows: ‘(Driving to left of center line.) No vehicle or trackless trolley shall be driven to the left of the center or center line of the roadway in overtaking and passing traffic proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction or any traffic overtaken.’

“If you find therefore from a preponderance of the evidence that Fred Strieker, the defendant in this case, drove to the left of the center line of Vine Street in overtaking and passing traffic proceeding in the same direction at a time when such left side of Vine Street was not clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction, Fred Strieker, the defendant, was negligent, and if you further find by a preponderance of the evidence that such negligence, if any, was the proximate cause of the collision between the vehicle operated by the plaintiff, Jerry Ross, and the defendant Strieker’s vehicle, and if you further find from a preponderance of the evidence that Jerry Ross was free of any negligence, your verdict on the petition must be for Jerry Ross, and your verdict on the defendant Strieker’s cross-petition must also be for Jerry Ross.”

The defendant excepted to the giving of this special charge, and the giving of it is assigned as error.

The defendant requested and the court gave this special charge:—

“I charge you that §6307-25 GC, which section was in full force and effect at the time of the happening sued upon in this case, is as follows: ‘Sec. 6307-25 GC Vehicles Shall be Driven on Right Side of Roadway; Exception. Upon all roadways of sufficient width a vehicle or trackless trolley shall be driven upon the right half of the roadway, except as follows: 1. When overtaking and passing another vehicle proceeding in the same direction or when making a left turn under the rules governing such movements; 2. When the right half of a roadway is closed to traffic; 3. Upon a roadway divided into three or more marked lanes for traffic under the rules applicable thereon; 4. Upon a roadway designated and sign posted for one way traffic; or 5. When otherwise directed by a police officer or traffic control device.’

“1 further charge you that if you find by preponderance of the evidence in this case that the plaintiff, Gerald Ross, was driving a Pontiac automobile in a northerly direction on Vine Street at the time and place of the happening sued upon in this case and that the east side (his right-hand side) of Vine Street was of sufficient width upon which to drive said Pontiac automobile but that the plaintiff, Gerald Ross, drove said Pontiac automobile over and upon and across to his left side (the west side) of Vine Street and without coming within exceptions set forth in the foregoing section of the General Code; and if you further find by a preponderance of the evidence that the defendant, Fred Strieker, was traveling in a southerly direction on the west side (his right-hand side) of Vine Street and was not at fault or negligent and you further find that the negligence of the plaintiff, Gerald Ross, was the direct or proximate cause of the collision between the vehicles, then your verdict on the petition must be for the defendant, Fred Strieker, and your verdict on the Cross-Petition must be for the defendant, Fred Strieker.”

And the court in its general charge stated the issue between the parties as follows: “so that the inquiry you are to make in this case is which of these vehicles crossed the left or to his left to the center line of the street.”

It will be observed that the defendant based his special charge upon. £6307-25 GC, requiring vehicles to be driven on the right side of the road with, however, certain exceptions, one of which was “when overtaking and passing another vehicle proceeding in the same direction” * * * “under the rules governing such movevments.” It will also be noted that the defendant’s special charge referred to the exception without stating the rules under which it would apply. It will further be noted that the plaintiff’s special charge fills the void in defendant’s special charge by setting forth the rules governing the passing of a vehicle going in the same direction. For that reason alone, we believe the plaintiff’s special charge was relevant and proper.

Counsel for defendant relies on Northern Ohio Ry. Co. v. Rigby, 69 Oh St, 184, but that case involved a charge thát was refused and the question was whether it contained a correct statement of the facts and the law, and the court held that it was erroneous, in that there was an assumption of the truth of an allegation of fact which was in dispute, and that, therefore, the court properly refused to give it. And the rule in 39 O. Jur., 938 (Sec. 259) relied on, states the general rule that there must be some basis in the evidence to support a hypothetical statement in a charge.

We are considering a special charge here in which the hypothesis is, in our judgment, supported by some evidence, which distinguishes it, and, furthermore, we are not considering a charge which was refused, but one which was given, and which raises an entirely different question and that is, whether substantial error has intervened to the prejudice of the appellant. If prejudicial error is not found, the judgment will not be disturbed, notwithstanding the giving of an erroneous or inapplicable charge. 2 O. Jur., 947, 951, 952, and 956.

Both because there was evidence to support the hypothesis contained in the charge and also because the charge in any event could not have been prejudicial, we hold that the giving of this charge furnishes no grounds for the reversal of this judgment.

(3) it is urged that the court erred in admitting opinion evidence of the place of the collision, based solely upon an inspection of photographs of the automobile taken immediately after the collision and where they had come to rest after the collision. These photographs were taken by officials of the Police Department of the City of Cincinnati. The plaintiff placed J. Stannard Baker on the stand in rebuttal. In response to questions, he testified that he held a degree of mechanical engineer from University of Wisconsin, that he was Director of Research of Northwestern University Traffic Institute; that various members of the Cincinnati Police Department had attended that Institute; that he had been engaged in traffic work since 1928; that he was the author of many monologues and articles published in various technical publications; that he had investigated traffic accidents and examined more than 600 photographs portraying such accidents and that he had testified as an expert on traffic problems approximately 20 times. There is no doubt that the recital of his experience in the field of traffic accidents and their causes was impressive. After being thus qualified, he was shown these photographs, taken by the Cincinnati Police Officers, and was permitted to give testimony based .solely on his inspection of these photographs. He was asked whether he had an opinion as to where these two automobiles came into collision and what that opinion was. In answer he said: “It was right over that debris.” He had previously testified, over objection, that a collision caused the collection of road oil, dry dust and mud from the underside of the automobiles. The implication from this testimony was that the original collision of these automobiles was on the plaintiff’s .side of the street and, therefore, that the defendant was violating the traffic rules at the time.

As already mentioned, in considering the applicability of the special charge, there was a third automobile involved and that almost simultaneous with the collision of the plaintiff’s .and defendant’s automobiles, it struck the rear of defendant’s automobile. This fact did not appear in the photographs and the witness’ attention was not called to it. Certainly, that was a relevant fact which might have affected his conclusion or opinion.

The trial court correctly stated that the inquiry was as to which of these vehicles crossed to the left of the street. In other words, that was the issue because under the circumstances existing the driver of that vehicle would be negligent.

The witness Baker was permitted to testify to his conclusions or opinions as to that exact issue and that from an inspection of the photographs and nothing else.

Of course, the general rule is that the testimony of witnesses must be confined to statements of facts within their own observation, knowledge, and recollection, as distinguished from mere opinions. 17 O. Jur., 412 (Sec. 323.) But there are exceptions, “for example, expert witnesses who have skill, learning or experience in a particular science, art, or trade may give an opinion in a proper case upon a given state of" facts relating thereto. And though some expressions are to be found in the cases indicating that opinions of skilled witnesses or experts represent the one instance in which the general rule excluding opinion evidence has been departed from, it is not true as a legal proposition that no one but an expert can give an opinion to a jury. Another well-established exception to the opinion evidence rule is that in matters more within the common observation and experience of men, nonexperts may, in cases where it is not practicable to place before the jury all the primary facts upon which they are founded, state their opinions formed from such facts, where such opinions involve conclusions material to the subject of the inquiry.”

As Baker had not and could not testify to any observed data relevant to the issue in this case, his testimony cannot be supported as the opinion of a non-expert, based upon his observation. Indeed it was as an expert that he was presented to the jury. And assuming that it was the proper subject of expert testimony, we believe his testimony was inadmissible because it was not based on all proven relevant data, as already pointed out, and also because the testimony purported to decide the identical issue that the law commits to the decision of the jury. Upon this latter ground it is said in Fowler v. Delaplain, 79 Oh St, 279, that: “A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence is incompetent.” Authorities could be multiplied, but we deem the rule incontrovertible.

We are fully conscious that a wide discretion is lodged in the court as to the admission of opinion evidence and that judgments will not and should not be reversed because of the admission of such testimony, unless the court is convinced that the error was prejudicial. In this case we are so convinced. Our conviction springs from the state of the evidence. There were only three persons present at the time of this collision— the plaintiff, the defendant, and the driver of the third automobile. The plaintiff was 18 years old, had drunk several glasses of beer shortly before this collision which took place at about one o’clock in the morning. He testified that he was driving near the center of the street, but on his right side, when he saw an automobile coming toward him, that the collision took place at once, he was rendered unconscious and did not regain consciousness until the next day. His cross-examination leads to doubt as to whether he saw the approaching automobile on his side on the road and to conclude that all he saw was an automobile approaching on his left and the light from that automobile.

The defendant was evidently an adult, as he had been employed as production manager of a division of Sperti Corporation since July, 1943. He had taken the lady, whom he subsequently married, to a show, and then took the lady to her home, and then went alone to a restaurant where he had drunk a bottle of beer. This restaurant was near the place of the accident. He left the restaurant about one o’clock and proceeded southwardly on Vine Street. He had passed an automobile driven by one Sigmund just before the collision, took place.

The other witness who testified from observation on the scene at the time was Sigmund. He testified unequivocally that the defendant was on his right side of the street and that the plaintiff passed over to his left side, where all three automobiles were at the time of the collision and that the force of the collision threw the defendant’s automobile into his path, causing his automobile to strike the rear of the defendant’s automobile.

A verdict for the plaintiff on this testimony could be challenged, with reason, as contrary to the manifest weight of the evidence. And that is all the evidence supporting this verdict excepting the circumstance that after the two collisions the defendant’s automobile was astride the center line of the street, the front being about 4 feet on his left side. We point this out to show the probable weight of the opinion testimony of Baker as to the place of the collision between the plaintiff’s and defendant’s automobile. It might well have tipped the .scale in plaintiff’s favor.

Counsel for appellee urges that the appellant did not object to this opinion, and that he withdrew' his objection and that he waived it. We do not think that is a correct interpretation of the record. The appellant having stated his objection at the inception, it was not necessary for him to repeat it at every step. And the court having ruled, no waiver resulted from cross-examination of the witness or of later offering evidence in conformity to the ruling.

Because of the unusual developments of this case in the trial court, resulting from the efforts of Auto-Owners Insurance Company to settle its liability, the trial judge as shown by his affidavit was not given an opportunity to pass upon the errors assigned for a new trial. While this affidavit of the trial judge cannot control the unvacated journal entry, inasmuch as the affidavit is in the record, we feel justified in calling attention to it as an added reason why substantial justice requires a reversal of this judgment and remanding the issues raised by the cross-petition and the answer thereto for a new trial, on the ground that the court erred in overruling the defendant’s objection to the testimony of the witness Baker.

We find no other error in the record.

For these reasons, the judgment is reversed, and the cause-remanded, as aforesaid.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By THE COURT:

text:
    LUTZ, Plaintiff-Appellee, v WHITE etc., Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7113.
    Decided June 27, 1949.

      Ralph E. Pott, C. Watson Hover, Cincinnati, for plaintiffappellee.
    Robert G. McIntosh, Cincinnati, for defendants-appellants.
   OPINION

By THE COURT:

The plaintiff-appellee obtained a judgment by the consideration of the Municipal Court of Cincinnati against the defendants-appellants for damages to his automobile. On appeal to the Court of Common Pleas, that judgment was affirmed. This appeal is from that judgment of affirmance.

In his bill of particulars, the plaintiff alleged that the defendants caused a ditch to be dug in Fairmount Avenue, in the City of Cincinnati, and failed to properly light and maintain proper warnings so as to notify the plaintiff of the existence of said ditch, that he was operating his automobile in a westerly direction on Fairmount Avenue at about 9:15 o’clock at night, and, due to the failure to maintain lights or other warning, he drove his automobile over said ditch, resulting in damage to the automobile. In their statement of defense, the defendants admitted the plaintiff owned the automobile and denied all other allegations.

The only question presented on this appeal is whether the plaintiff was guilty of contributory negligence as a matter of law. This question can be determined only by a consideration of all the evidence, unless we find that the plaintiff had admitted facts constituting contributory negligence.

We are presented with a narrative bill of exceptions, the certificate to which contains. no recital that it contains all the evidence, and there is no such express recital in any other part of the bill. In addition to not containing a recital that it contains all the evidence, the certificate refers to “exhibits attached” but there are in fact no exhibits attached. The bill of exceptions does recite that the plaintiff “to maintain the issues upon nis part, offered the following witnesses”, followed by the testimony of three witnesses, including the .plaintiff himself, and xoiiowed by tne statement tnat: "Tffereupon the defendant moved for a directed verdict upon the testimony of tne plaintiff." After reciting that that motion was overruled, the bill continues with the statement that: “Thereupon tne defendant to maintain the issues on his part .presented the following witnesses.” The recital of the defendants' evidence was followed by the plaintiff's rebuttal evidence, and this was followed immediately with the statement tnat: "Thereupon, tne plaintiff rested” upon which the •defendant “whereupon____moved for a directed verdict.”

Van the court pass upon this issue of contributory negligence on this bill of exceptions?

The appellee has not raised this question of the inadequacy of the certificate to the bill of exceptions and, for that reason, we have been reluctant to raise it sua sponte, but the .frequency with which the court is presented with narrative .bilis of exceptions, prepared by unofficial reporters, compels us, aithougn reluctantly, to taire notice of it m this case,

in 2 O. Jur., 449 and 450, it is stated:

“In those cases where the bill of exceptions must contain all the evidence, there must be an affirmative showing to this effect; the bill of exceptions must expressly certify or show by necessary implication that it contains all the evidence given upon the trial. The certificate of the trial .judge constitutes the only means of establishing that all of the evidence offered in the trial court is contained in the bill of exceptions. It nas been said that a bill of exceptions must .state affirmatively that it contains all of the evidence, where it is essential, in order to nave all of the claimed errors reviewed, that all of the testimony talren in the trial court be .presented in the bill. Undoubtedly an express statement m the certificate that the bill of exceptions contains all the evidence offered by either party in the case would be sufficient, and it would also be desirable.”

It is true that an express recital that the bill contains all the evidence is not required, where there is an implication to that effect necessarily arising from the recital in the bill. On this subject, it is stated in 2 O. Jur., 451:

“What is a showing by necessary implication must depend upon the facts of the individual case. A recital in detail of the evidence offered does not necessarily imply that the evidence thus set forth in the bill of exceptions was all that was offered.”

In Mack, Stadler & Co. v. Great Western Despatch, 3 C. C. 36, the court was required to pass upon this question in relation to a bill of exceptions containing more indicia of completeness than the bill in this case, and yet the court held that it could not say that it contained all the evidence, saying at pages 38 and 39:

“Must it necessarily be implied from the language of this bill of exceptions thus set out, that it contained all of the evidence received in the trial court? It does not say so. It does not contain the common formula, ‘that the foregoing was all the evidence received in the case.’ And in view of the strictness required in this respect by the decisions of the supreme court, we are not able to say that such is the necessary implication. It does not expressly appear that everything which Mr. Mack testified to, is set out in the bill, nor does it affirmatively appear that no other witness was examined. It is true, that knowing the manner in which stenographers usually record everything that takes place at a trial, we may feel that it is highly probable that we have before us, all of the evidence on which the trial court acted — but this is a fact which must be shown by the bill itself, and the opinion which we may have, founded on the usual correctness of stenographers, is not to out-weigh the legal presumption that the trial court acted correctly, and therefore in the absence of proof on the face of the bill itself that such was not the fact, that there was other evidence than that which is set forth in it.”

On the effect of the omission of exhibits it is said in 2 O. Jur., 453, that:

“It has already been shown that where the certificate shows that exhibits are omitted from the bill, the court cannot review the weight of____evidence.”

We are of the opinion that the court would not be justified in holding that this bill of exceptions shows on its face that it contains all the evidence and, as the error assigned is one that cannot be determined without a consideration of all the evidence, the judgment must be affirmed.

For these reasons, the judgment is affirmed.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur.


author: By THE COURT.

text:
    KINCAID, Plaintiff-Appellee, v. DAWSON et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4308.
    Decided June 15, 1949.
    McGhee, Rowe & Evans, Columbus, for W. H. Sandusky, appellee.
    B. N. Murray, Columbus, for B. N. Murray, appellant.
    J. Weller Igo, Columbus, for D. R. Kincaid, administratorappellee.
    J. Roger McClurg, Columbus, for J. R. McClurg, administrator-appellee.
   OPINION

By THE COURT.

Submitted upon motion of W. H. Sandusky, appellee, seeking an order to dismiss the appeal for the following reasons:

1. The appeal herein is on an order quieting the title of this appellee in and to real estate and the notice recites the appeal is on law and fact, while no appeal bond was signed and filed at the time notice of appeal was filed as required by §12223-6 GC.

2. No precipe for transcript of docket and journal entries was filed when notice of appeal was filed as reqquired by §12223-8 GC.

The first branch of the motion is well taken as the giving of an appeal bond is a requisite necessary to perfect the appeal on law and fact. Sec. 12223-6 GC. However, the appeal will be retained on questions of law as provided by §12223-22 GC. The’ appellee urges that no questions of law are involved in this appeal, but this cannot be determined until the assignments of error have been filed. The appellant will be given the time allowed under supplemental Rule VII of this Court for the filing of bill of exceptions, assignments of error and brief.

The second branch of the motion will be overruled as the failure to file a precipe for the transcript of docket and journal entries is not ground for dismissing the appeal. See General Schuyler Fire Insurance Co. v. Shustick, 34 Abs 498.

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

ON MOTION SEEKING AN ORDER

No. 4308. Decided September 13, 1949.

By THE COURT.

Submitted on motion by the defendant-appellant B. N. Murray, seeking an order striking from the files the brief of the appellee for the reason that the same was not filed in accordance with Rule VII of this Court. This rule has never been strictly enforced by this Court where no injury has been suffered by the appellant by reason of the delay. Upon the facts presented and in the exercise of our discretion the motion will be overruled.

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


text:
    AMERICAN ZINC OXIDE COMPANY, Plaintiff-Appellee, v. LOCAL UNION No. 536 et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4286.
    Decided September 6, 1949.
    Vorys, Sater, Seymour & Pease, Columbus, for plaintiff-appellee.
    Mayer & Mayer, Columbus, for defendants-appellants.
    See also 54 Abs 581.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order of dismissal for failure to file assignment of errors, and brief, in conformity with the order of this Court entered on June 14, 1949. The record supports the grounds set forth in the motion and the same is sustained.

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


author: By DOYLE, J.

text:
    SWEIGERT, Plaintiff-Appellee, v. SWEIGERT, Defendant-Appellant, CLEVELAND TRUST CO. Exr. etc., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21274.
    Decided June 13, 1949.

      Deibel, Elbrecht & Roberts, Cleveland, for plaintiff-appellee.
    Halle, Haber, Berick & McNulty, Cleveland, for defendant-appellant.
   OPINION

By DOYLE, J.

This cause is on appeal from the Probate Court of Cuyahoga County, where a judgment was rendered in favor of the claimant to certain property by virtue of the provisions of a will therein probated.

The question to be decided is whether, under two items of the will of Catherine B. Schweigert, deceased, her husband, who survived her at her death, was entitled to the property,, both real and personal, without limitation or condition, or whether there was vested in him a life estate only, with a gift over of the remainder to their son upon his, the husband’s,, death.

The husband is now dead. The will was executed in 1914- and Mrs. Schweigert’s death occurred in 1946.

The controversial provisions are as follows:

“Second: I give, devise and bequeath to My Dear beloved Husband, Albert Schweigert, Absolutly (sic) all my real and personal property now in my possession or that which may-come into my possession hereafter of every kind and nature..

Third: And after his decease that all his real and personal property that is in his possession at the time of his death, shall become the property and possession of my dear beloved son Albert E. Schweigert, absolutly (sic) and forever.”

The Probate Court ruled that, upon the death of the testatrix “an absolute fee simple estate” in the real estate vested in the husband, as well as- “an absolute interest in all personal property” of which she was seized at the time of her death, and that “the attempted limitation over * * * to her son * * * is null and void and of no effect.”

It is this ruling which this court is now asked to reverse and to hold that a life estate only vested in the husband, and that item “Third” of the will, set out above, “vested a valid remainder in the son.”

There can be no doubt but that item “Second” standing alone, vests a fee simple title, without limitation, of the real estate, and an absolute ownership of the personal property, in the husband and that, if item “Third” attempted to impose a limitation on the ownership of the specific property devised and bequeathed by the wife, the rule announced in Gill Exe. v. Leach, Admrx., et al, 81 Oh Ap 480, would be applicable, unless §10512-7 GC should be construed to apply to the real property devised.

In the case cited above, it is stated:

«* * * when the absolute and unrestricted ownership of property is given by a will, a limitation over is void, because such a limitation is inconsistent with the full and complete title already given.”

However, under the language of item ‘Third’ of the instrument, the testatrix does not attempt to limit the unrestricted ownership of the personal property bequeathed, nor does she attempt to make the fee simple estate devised, defeasible upon the event of the death of her legatee and devisee. It therefore follows, for this reason (and perhaps for other reasons not now considered) that the statute (§10512-7 GC) has no application to the instrument in question.

As we view the language of the testatrix, she gave to her husband unrestricted title to her property, both real and personal, and then she attempted to will for her husband all of the real and personal property which he might have at his death. She made no reference to any specific property whatsoever, but simply undertook to will for her husband all of his property, without reference to kind, description or how acquired. Of course, the law does not permit her to execute a will for her husband, nor can a fee simple estate be made defeasible, even under §10512-7 GC unless the words of the instrument devising such estate indicate the specific real property upon which the limitation is intended.

It is the conclusion of the members of this court that the ownership of the property of the testatrix vested without limitation in her husband at the time of her death; item ‘Third’ of the will is inconsistent with and repugnant to item ‘Second’ and is an attempt by the testatrix to dispose of her husband’s property in her will; and §10512-7 GC and sections of the Code prior thereto have no application to this case.

The judgment must be and is affirmed. Exc. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By ROSS, PJ.:

text:
    ELLIS, Plaintiff-Appellant, v. VICTOR ELECTRIC PRODUCTS, INC., etc., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7090.
    Decided May 31, 1949.

      Scanlon & Scanlon, Cincinnati, for plaintiff-appellant.
    Dinsmore, Shohl, Sawyer & Dinsmore, Cincinnati, for defendant-appellee.
   OPINION

By ROSS, PJ.:

The appeal upon questions of law here considered is from a judgment of the Court of Common Pleas of Hamilton County, rendered in favor of the defendant upon motion of defendant for judgment on the pleadings and opening statement of counsel.

That courts should not be unduly precipate in granting such motions is apparent from the cases in which such motions have been considered by courts of review. Neckel v. Fox, 110 Oh St, 150. It is stated at page 152 of the opinion:

“This court is not disposed to give too rigid a construction to the terms employed in the statement by counsel for plaintiff.”

Wainscott v. Young, 74 Oh Ap, 463, 465.

39 O. Jur., “Trial” Section 226, pages 885, 886.

Stripped of many matters irrelevant to the questions presented, the problem involves the construction of a contract which is definitely alleged and stated by plaintiff and denied by the defendant.

Both in his petition and in the opening statement of his counsel, the plaintiff claims the defendant promised and agreed that if the plaintiff would take a reduction in his monthly salary of $200.00 that the defendant would pay plaintiff (1) $650.00 per month, (2) pay plaintiff’s moving expenses from Pittsburgh, Pennsylvania, (3) give plaintiff an annual two weeks vacation with pay, (4) and a bonus based on increased production, guaranteed to be substantially more than the difference between his previous salary and that accepted, if production continued as it had for the two previous months.

The plaintiff claims he performed his contract and this is not seriously denied.

The defendant, according to statements of plaintiff, performed part of its contract. It paid plaintiff the $650.00 per month, it paid him the amount of vacation pay, after demand for same, and no claim is made for moving expenses, so it may be presumed these’ the defendant paid also.

The defendant has refused to pay the plaintiff any extra compensation in any amount, although there is a definite allegation, which, if proved, would entitle plaintiff, without question, to, at least, the difference between $850.00 and the $650.00 temporarily accepted by plaintiff. When the promise to pay a “bonus” becomes a part of a contract of employment it is more than a mere gratuity. Mabley & Carew Co. v. Borden, 129 Oh St, 375.

See, also: 28 A. L. R. p. 332.

The holding in the Mabley & Carew Co. case was in the face of a clause in the instrument stating it was “purely voluntary and gratuitous.”

A great deal of confusion is created upon both sides of this controversy by the use of terms irrelevant to the issues presented.

However, regardless of what the plaintiff states his conception of the relief merited by the facts alleged, if he is entitled to relief on the facts alleged and stated, such relief must be extended by the courts. Schaefer v. First National Bank, 134 Oh St, 511. At page 520 of the opinion it is stated:

“When the plaintiff pleads all the facts the court should give him the relief he is entitled to, whether in equity or by declaratory judgment; even the prayer is not controlling. Riddle & Parker v. Roll, 24 Oh St, 572; Tiffin Glass Co. v. Stoehr, 54 Oh St, 157, 163, 43 N. E., 279; State, ex rel. Masters v. Beamer, 109 Oh St, 133, 151, 141 N. E., 851.”

See, also: Triff, Admx., v. Foundry Co., 135 Oh St, 191; Cook v. Crider, et al., 63 Oh Ap, 12.

The facts alleged and stated by plaintiff show the existence of a contract. Statements as to quantum meruit and unjust enrichment, if irrelevant, may be ignored as surplusage. Triff, Admx., v. Foundry Co., 135 Oh St, 191, supra.

The defendant, according to plaintiff’s allegations and statements, has agreed to pay a bonus, that is additional compensation to that paid monthly, based on increased production and guaranteed to be substantially more than his previous salary. In effect the contract was to pay compensation for services rendered in part monthly and the balance at the end of the year.

It is evident that the substantial increase over the accepted decrease in salary will have a direct relation to increased production. A mathematical ratio is this presented involving the decrease in salary accepted by plaintiff, increased production, which is charged to be 600% and a substantial payment. What will be the amount of damages for the breach of this contract will be a question for the jury largely controlled by what it determines the reasonable value of the services rendered to be, taking into consideration the increased production accomplished by plaintiff.

The use of the word “bonus” in the contract is misleading, and, as has been pointed out, is not under the circumstances a mere voluntary gratuity.

The fact that the exact amount of compensation is left to future determination between the parties does not destroy the obligation to pay the reasonable value of the services, even if partial payment is made from time to time, when such services are rendered under such an agreement. Certainly, a contract merely to pay a substantial amount for services rendered can be enforced. Such amount would necessarily have a relation to the reasonable value of the services rendered. See: Restatement of law of Contracts, Sections 323, 324; 12 Am. Jur., pages 877, 878.

The judgment should be reversed and the case remanded for further proceedings according to law.

Judgment reversed and cause remanded.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


text:
    SMITH, Plaintiff-Appellant, v. SMITH, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2061.
    Decided September 30, 1949.
    Gus W. Byttner, Dayton, for plaintiff-appellant.
    Jacobson & Drust, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of the appellant for an allowance of temporary alimony, support of her minor children, and expenses of the suit during the pendency of this appeal.

Sec. 11994 GC provides that when an appeal is taken to the Court of Appeals, that court may grant alimony and support during the pendency of the appeal. The word “appeal” as used in this section has been construed to mean an appeal on law and fact. In an appeal on questions of law, which this is, the Court of Appeals does not have jurisdiction to grant temporary alimony. This Court, as recently as March 25, 1949, in Rogers v. Rogers, in the Court of Appeals of Fayette County, in an unreported opinion, denied an application for temporary alimony. The Court approved and followed the case of Davis v. Davis, 41 Abs 189, 57 N. E. (2d) 701. See also Dann v. Dann, 71 Oh Ap 110, 48 N. E. (2d) 140.

Application denied.

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