author: By HORNBECK, PJ:

text:
    AHRENS et, Plaintiffs-Appellees, v. EGAN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2139.
    Decided May 4, 1951.
    Landis, Ferguson, Bieser & Greer, Dayton, Rowan A. Greer, of Counsel, for plaintiffs-appellees.
    Matthews & Altick, Dayton, Francis S. McDaniel, of Counsel, for defendant-appellant.
   OPINION

By HORNBECK, PJ:

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming a money judgment of the Municipal Court for plaintiffs.

The municipal judge, a jury having been waived, found for the plaintiffs and upon request of the defendant made separate findings of fact and law. The court found that plaintiff, Ahrens, on the night of accident, at about one o’clock, was driving his Ford automobile in a westerly direction on Lee Street in the City of Dayton; that defendant was driving his Buick sedan in a northerly direction on' Webster Street; that the cars came into collision in the intersection of these streets; that the area wherein the collision occurred was not a “business district,”; that plaintiff’s speed did not exceed 35 miles per hour and he kept a look out for other traffic; that the defendant approached and entered the intersection on a red traffic signal; that he observed the Ford automobile but, nevertheless, proceeded on into the intersection * * * and that defendant’s conduct in so proceeding into the intersection was the sole proximate cause of the collision.”

Appellant in his brief assigns two questions for determination:

1. Was the street upon which appellee, Ahrens, was proceeding in a business district?

2. Was the plaintiff-appellee, Ahrens, proceeding unlawfully at the time of the accident, so as to deprive him of the right of way?

The trial judge, and the Common Pleas Judge on appeal, determined that the district in which the accident occurred was not a “business district” and that the speed at which the trial judge found the plaintiff was proceeding, 35 miles per hour, was not prima facie unlawful.

We consider the errors assigned in reverse order. Was the plaintiff-appellee, Ahrens, proceeding unlawfully at the time of the accident, so as to deprive him of the right of way?

If it be said, as a matter of law, that the plaintiff was prima facie negligent or even that he was driving unlawfully as he approached the intersection where the collision occurred, we are of opinion that the specific finding of the Court that the sole proximate cause of the collision was the defendant’s negligence, in connection with the other findings, is sufficient to support the judgment. Glasco v. Mendelman, 143 Oh St 649.

We pass upon the first assignment of error only because of the requirement that we pass upon all errors assigned and not because it is controlling of our judgment.

Was the street upon which the plaintiff was proceeding in a “business district?”

“Business district” as defined in §6307-2 GC is:

“The territory fronting upon a street or highway, including the street or highway, between successive intersections within municipal corporations where 50 per cent or more of the frontage between such successive intersections is occupied by buildings in use for business, * *

Several aspects of the section of the code were considered and discussed by the trial judge, and argued by counsel. The trial judge gave weight to the fact that the collision here involved took place in the late night season by reason of which there would be little or no vehicular or pedestrian traffic in the vicinity of the Airtemp building. There is logic in this position and it might well be the basis of classification of “business district” in the statute but it is not carried into the law. If a section of a municipality is a “business district” by §6307-2 GC it is such a district at all times of the day.

Counsel assume that the record raises the other questions argued, viz.: that the Airtemp building, together with other business buildings, occupy more than 50 per cent of the space between Webster and Daniel Streets on Leo Street,, that the Airtemp building is well set back from Leo Street and that at the time of the accident it was used as a “manufacturing organization.” (Emphasis ours.) The record has to be read with much liberality to find that any of these later propositions is fully developed. It is probable that counsel and the trial judge drew upon their personal knowledge of the physical conditions in the vicinity of the accident and were not fully cognizant of the meager development of the operative facts in the record.

We assume that the Airtemp building occupied 50 per cent of the north side of Leo Street between Webster and Daniel Streets. The record shows that it sets back from Leo Street, but not how far back. It also appears that there is an entrance to the building from Leo Street. Does the building have frontage on Leo Street?

A strict interpretation of the word frontage would be “abutting upon.” In the law relating to street assessments for improvements thereon the Code uses the terms “abutting, adjacent, and contiguous or other specially benefitted lots or lands * * although such assessments are commonly spoken of as “front foot assessments.” We are of opinion that the Airtemp building has frontage on Leo Street for two reasons.

1. Because there is an entrance into this building from Leo Street and there is no structure between the building and Leo Street.

2. The language employed in defining “Residence District” in §8307-2 GC, wherein the term frontage is used, is the same as it is in defining “Business District.” If “frontage” is given a restricted meaning we seldom would have a residence district because of the prevailing practice of erecting residential structures back from the street line.

Was the Airtemp building used for business? We believe that it was.

Succeeding the definition of “Business district” in the statute, §8307-2 GC, is that of “Residence district” which is, in part, “The territory, not comprising a business district, fronting on a street or highway, * * *.” There is no other specific classification of districts. The legislation under consideration is found in the Uniform Traffic Act under the heading Police Regulations and manifestly has for its purpose the regulation of traffic as related to the safety of the public. Business establishments in their operations cause many persons to move into, from and about them and thereby intensify the flow of traffic. The Airtemp building which must accommodate many operatives as a manufacturing organization would normally fall into the classification of a business establishment. It certainly would not be considered as of residential character. Funk & Wagnalls New Standard Dictionary defines business as, First, a pursuit or occupation. Second, any occupation connected with the details of trade or industry; also commercial affairs, as, the banking business. In Re L. Myers Steel Co., 109 Fed. 456, 470, recognized a company which manufactured iron and steel products as a business concern. We are in no doubt that the Airtemp building is a structure in which business is conducted.

We hold that the record requires that the territory in the vicinity of the place where the collision occurred be classified as a “business district.”

No prejudicial error appearing, the judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


source: Caselaw Access Project

author: By DAVIES, J.

license: Public Domain

text:
    APPLEGATE, Estate of, In re.
    Probate Court, Hamilton County.
    No. 181501.
    Decided April 5, 1951.
    John B. Freiden, Cincinnati, for Ralph C. Burnett, applicant-. Leonard C. Gartner, Cincinnati, for estate of Anna Apple-gate, deceased.
   OPINION

By DAVIES, J.

This matter comes before the court upon the motion of Ralph C. Burnett to remove Theresa Pfalz, the administratrix of the estate of Anna Applegate, deceased, for the reason that said applicant “has filed no waiver of his right to administer the estate, nor has this applicant been cited by the Court for the purpose of ascertaining whether he desires to take or renounce such administration, as required by §10509-4 GC.”

According to the testimony, the said Anna Applegate died intestate on February 15, 1951, and Theresa Pfalz was appointed administratrix of said estate on February 23, 1951.

Since said decedent left no surviving spouse, children or their lineal descendants, parents, adopted children or designated heirs, her property will be distributed and descend to the following named individuals:

Theresa Pfalz, a sister, and resident of Hamilton County, Ohio, who is the person who has been appointed administratrix;

Carrie Hildenbrand, a sister, and resident of the State of Washington;

Norbert Ranz, a resident of the State of Washington, a nephew and only child of a pre-deceased sister, Tillie Ranz;

Ralph C. Burnett, who filed the motion to remove the administratrix, and Marian Mecklenborg, also resident of Hamilton County, Ohio, the children of a predeceased sister, Rose Burnett, and the nephew and niece of the decedent;

Albert W. Walsh, Irene Penker, Nellie Burns, Vesta Gartner and Blanche Wellman, all of whom are residents of Hamilton County, Ohio, nephew and nieces of the decedent and children of a predeceased sister of the decedent, Mary Walsh, and

Charles Walsh, a resident of the State of Maryland, who is also a nephew of the decedent and a son of the predeceased sister, Mary Walsh.

The record also shows that before Theresa Pfalz was appointed administratrix, no waivers were signed by any of the nieces and nephews who resided in Hamilton County, Ohio, and none of said nieces and nephews were cited by the court for the purpose of ascertaining whether they desired to take or renounce such administration.

Before passing upon the applicant’s motion to remove the administratrix, it is necessary for the Court to determine what person or persons, resident of Hamilton County, are entitled to administer the estate of Anna Applegate, deceased.

According to the provisions of §10509-3 GC, since the decedent left no surviving spouse, the administration of her estate shall be granted to one of the “next of kin” of the deceased, resident of Hamilton County.

Sec. 10509-4 GC, provides, among other things, that before being appointed executor or administrator, every person shall make and file an application under oath, which must contain the names of the surviving spouse and all the next of kin of the deceased to such person known, and provides that “the application may be accompanied by a waiver signed by the person or persons resident of the county entitled to administer the estate, and in the absence of such waiver such person or persons shall be cited by the court for the purpose of ascertaining whether they desire to take or renounce such administration.”

“The person or persons resident of the county entitled to administer the estate,” referred to in §10509-4 GC, are defined in §10509-3 GC, as “the next of kin of the deceased, resident of the county.”

Sec. 10503-2 GC, provides that “in the determination of intestate succession, next of kin shall be determined by degrees of relationship computed by the rules of civil law.”

We come next to a consideration of who were the “next of kin” of Anna Applegate, deceased. Was Theresa Pfalz, the sister, the only resident of Hamilton County entitled to administer the estate, or were the aforementioned nieces and nephews who resided in Hamilton County also entitled to administer their aunt’s estate? We believe these questions are answered by the holding In Re: Estate of Fields, decided by the Court of Appeals for the Second District of Ohio, Greene County, 44 Abs 284, 65 N. E. 70. In this case, the Court held, first of all, that the provisions of §10503-2 GC, relating to intestate succession and defining, for such purpose, the term “next of kin,” have no application in the determination of the right to appointment as administrator of a decedent’s estate. The court also held that the term “next of kin,” as used in §10509-3 GC, relating to the appointment of administrators of decedents’ estates, includes a grandchild of the decedent even though there are living children of the decedent, and finally held that under the provisions of §10509-3 GC, a grandchild of an intestate decedent who is a resident of the county is entitled to preference over a child of such decedent who is not a resident of the county, for appointment, as administrator of the estate of such decedent.

We believe, as held by the court in its decision, that the words “next of kin” mean those relatives who, at the time of the appointment, would inherit in case of intestacy, and that in its practical use the term “next of kin” has come to mean ordinarily those persons who take the estate of the deceased under the statutes of descent and distribution.

We conclude that since Ralph C. Burnett, the applicant, and Marian Mecklenborg, Albert W. Walsh, Irene Penker, Nellie Burns, Vesta Gartner and Blanche Wellman, nieces and nephews of the decedent, were “next of kin” of Hamilton County, “entitled to administer the estate” of their aunt, Anna Applegate, deceased, and since the application of Theresa Pfalz for appointment as administratrix of said decedent’s estate was not accompanied by a waiver signed by said resident nieces and nephews, and since such persons were not cited by the Court for the purpose of ascertaining whether they desired to take or renounce such administration, the said motion for removal of the administratrix will be sustained.


author: By HORNBECK, PJ.

text:
    BANKO, Petitioner, v. AMRINE, Supt. of London Prison Farm, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4477.
    Decided May 24, 1950.
    Gene A. Jones, Columbus, for petitioner.
    C. William O’Neill, Atty Geni., Max N. Dennis, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By HORNBECK, PJ.

The petitioner prays for a writ of habeas corpus stating under oath that at the time that he was arraigned on the charge for which he was indicted, viz,, armed robbery, he was told by the assistant prosecutor to plead guilty because he, the prosecutor, “had the goods on him”; that although he requested the trial judge to appoint counsel for him, his request was refused and that because of the foregoing conduct he was caused to enter a plea of guilty resulting in his sentence and commitment to the penitentiary.

The petitioner has been accorded the benefit of legal counsel in this Court, who has investigated the truth of these assertions of the petitioner. The result of this examination not only has not supported any one of the assertions of the petitioner, but, on the contrary, establishes an entirely different factual situation. There is no corroboration whatever for the statements of the petitioner in support of his action. The record is clear and convincing that no coercion was practiced when the petitioner’s plea of guilty was interposed. He admitted at the time that he understood the nature of the charge against him. He entered a plea of guilty which he had theretofore indicated to be his purpose. He made no request for counsel. There was no showing of indigency and it does not appear that he has been denied due process of law.

The writ will be denied and the petition dismissed.

WISEMAN and MILLER, JJ, concur.


author: By HURD, J:

text:
    SUTFIN, Admr., Plaintiff-Appellee, v. BURTON, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22041.
    Decided August 6, 1951.

      Spieth, Spring & Bell, Cleveland, for plaintiff-appellee.
    Bulkley, Butler & Rini, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

The parties herein will be designated as plaintiff and defendant as they appeared in the trial court.

This action in tort for wrongful death originated in the Common Pleas Court of Cuyahoga County and is here on appeal on questions of law from a verdict and judgment for the plaintiff in the sum of $35,500.00.

The plaintiff is the duly appointed and qualified administrator of the estate of his wife, Margaret D. Sutffn, late of the Village of Gates Mills, Ohio, who died on January 19, 1948, leaving surviving her the plaintiff and three adult children in whose behalf the action is brought.

The defendant is the owner of a country estate located on Foxboro Road in the Village of Gates Mills in the vicinity of the Polo Field and Old Mill Road, the residence on his property being a distance of about one-half mile from Berkshire Road in said Village.

On the night of Jan. 18, 1948, plaintiff with his deceased wife seated beside him was traveling in his Plymouth Sedan in a northerly direction on Berkshire Road in Gates Mills Village when he encountered three horses running loose on the highway. When he first observed the horses they were approaching his car in single file in a southerly direction along the easterly edge of the pavement. He operated his car past the first two horses safely, but a draft horse, the third in the line, reared up on its hind legs and brought its fore legs down on the top of the car with such force and violence that the right front top of the car was caved in and the windshield and supports shattered. Mrs. Sutfin who was seated at the point of impact was so seriously injured that she died the following day.

The events preceding the fatal accident are clearly shown in the evidence, particularly in the admissions of the defendant. The defendant testified in substance that on the night of Jan. 18, 1948, he had been at his residence in Gates Mills and that about 6:45 P. M. he left by automobile to put some straw in the “duck pen” located at an extreme corner of his property. It was a very cold night, the temperature being about zero, and it was getting dark as he left his residence. In order to reach the duck pen he drove his car down a lane which runs through a narrow opening between the stable and shed. The shed is in the corral or pasture designated as “pasture A.” He opened the gates of the pasture and drove his car through, leaving the gates open, although he knew there were three horses in pasture A at the time, a pony, a riding horse and a draft horse, all owned by defendant. When he returned from the duck pen he again drove through the pasture gates which he then closed. It was shortly after this that he noticed that the three horses had escaped through the open gates while he was at the duck pen. When he first saw them they were cantering or galloping up a path which led up a hill, the three horses being at the time the defendant first noticed them, about fifty to seventy feet from the bottom of the hill. Defendant stood and watched the horses until they had reached a point about three-quarters of the way up the hill but he did not pursue them. The defendant testified that the best judgment he could use at that time was to leave them alone and then go down to his house, check in, and then endeavor to go up on the far flank on the outside and see. if in some way he could maneuver them home. Instead of pursuing this plan, however, he told the Police Chief, who was visiting at his home at the time, to go out and look for them. As events disclosed, the Police Chief rode around in his car but never saw the horses until after he was notified of the accident by the police of a neighboring township. At about 7 P. M. defendant went to the Chagrin Valley Hunt Club for dinner. At 8:20 P. M. according to his testimony, he was notified by telephone at the Hunt Club of the accident which led to the death of plaintiff’s decedent.

Another fact to be noted, is that adjoining defendant’s property are two other properties known respectively as the Ammon and Ginn estates, both of which are large properties with driveways leading into Berkshire Road.

Defendant on cross-examination, testified that he knew that the horses, if up on the high land of the Ammon property, could then stray out out onto the highway into Berkshire Road and then go up the highway into the Ginn property. The evidence shows that there are gates located on the driveway entrances to both of these properties. Defendant testified that he knew of these gates but did not telephone either the Ginn or the Ammon residence to notify them of the escaped horses with a request to close the gates.

Other evidence in the record shows that the horses had wandered from the Ammon property on to the adjoining Ginn property; that they had been around the Ginn barn where the Ginn horses were secured and that finally they found their way out of the Ginn estate service driveway on to Berkshire Road and galloped or trotted from 100 to 150 feet to the point where the accident occurred.

Plaintiff claims that his wife’s death was due to the negligence of defendant in two respects; (1) in permitting the animals to escape from the pasture in which they were confined, especially the draft horse which caused the accident, when he opened the gates of the corral or pasture; (2) in failing, after the escape of the horses, to take the reasonable steps which would be proper to retake and re-confine them and thereby to prevent them from straying onto the public highway.

The eight grounds of error assigned by defendant, for purposes of discussion can readily be condensed and considered as follows:

1. The verdict is manifestly against the weight of the evidence.

2. Misconduct of a juror.

3. Error in charge of court, both before and after argument.

4. Verdict grossly excessive, appearing to have been rendered under the influence of passion and prejudice.

We shall first consider the claim that the verdict was manifestly against the weight of the evidence.

Negligence is never presumed, but is a question of fact for the determination of the jury under proper instructions of the trial court.

In the instant case, on the admissions of defendant himself, he opened the gates of the paddock where the horses were pastured permitting them to escape; in addition to this he saw the horses after they had escaped. There were means readily available to prevent the horses from entering upon the highway but no effectual steps were taken to prevent the animals from straying on to the public highway. The defendant testified that he was familiar with the habits of horses and had been riding horses since he was two years of age. In addition he testified that he was Master of the Hunt of the Chagrin Valley Hunt Club and engaged in fox hunting through this territory and therefore was familiar with the terrain of the surrounding countryside. In view of these and other facts and circumstances, we must conclude that there was ample evidence to justify the jury in finding defendant negligent upon either one or both of the specifications charged. Therefore we conclude that the verdict of the jury was not manifestly against the weight of the evidence and the assignment in that respect must be overruled.

The claim of error in respect of misconduct of a juror is predicated on the claim that juror, Nellie A. Hoover, withheld information regarding a claim she filed in the United States Court at Cleveland Ohio, Mar. 4, 1950, arising out of the steamship “Noronic” disaster on Sept. 17, 1949. ■ The specific question asked by counsel was as follows:

“I would like to ask you all, have any of you got any kind of litigation of any sort pending in any court either where you have brought suit or where somebody else has sued you?”

When the question of misconduct was raised, after the trial, an affidavit was filed by Nellie A. poover, which in substance shows that on Sept. 17, 1949, she was a passenger on the steamship “Noronic” (occupying stateroom 8, Deck D) which steamer was destroyed by fire on that date while docked at Toronto, Ontario, Canada. Affiant’s son was also a passenger and came to her stateroom and aroused her, he having heard people getting up and noting some confusion. Affiant hurriedly dressed and went to the gangplank which was near her stateroom where a ship’s mate told her and her son to go ashore which they did. Affiant, at that time, did not know the ship was on fire. Affiant says that neither she nor her son were injured and she did not regard the occurrence on the “Noronic” as being an accident as far as she was concerned. Her baggage was destroyed and subsequently she received a form letter from the Canada Steamship Line Ltd., the owners of the “Noronic” requesting her to file a claim of loss with one Ralph Vince, Williamson Bldg., Cleveland, Ohio. Affiant stated that she did not consider the matter of sufficient importance to consult a lawyer. At that time she was residing temporarily with her son in Arlington, Virginia, and she simply went before a Notary Public on Mar. 4, 1950, one Margaret D. Pute, who prepared the affidavit showing her claim of loss for baggage destroyed by fire in the amount of $354.55; she then mailed the affidavit from Arlington, Va., to Ralph Vince in Cleveland, Ohio, and did not know that her affidavit was filed by Ralph Vince in the U. S. District Court at Cleveland and did not consider the filing of her affidavit as constituting any kind of litigation in court or that she was a party to any suit or litigation. She further alleged that she has not brought any suit against any one or has any one sued her in any form. She states further in her affidavit that while she was a juror in the instant case, she did not feel that any question directed either to the jury generally or to her required her to mention the “Noronic” incident; that she did' not intend to conceal the fact that she was a passenger on the “Noronic” and would have been perfectly willing to mention that fact if any of the questions had required it. She concluded her affidavit by saying that the “Noronic” incident did not affect or influence her judgment in any respect whatever in rendering the verdict in the case at bar.

The trial court in this case overruled the motion of defendant for new trial on the ground of misconduct of a juror. We are of the opinion that the principles enunciated by the Supreme Court in the case of Pearson v. Gardner Cartage Inc., 148 Oh St 425, have application here. Under the holding in that case, where a prospective juror on voir dire examination in a personal injury case remains silent on the subject of accident or claim, whether a party is prejudiced by the fact that such juror sat in the trial without disclosure, is a question to be determined according to the sound discretion of the trial court. Whether a trial court has abused its discretion is to be determined by a reviewing court in accordance with the terms of §11364 GC. We are of the opinion that the claimed error did not affect the substantial rights of defendant and that the trial court was not guilty of an abuse of discretion in overruling the motion for new trial. Conceding that the “Noronic” fire was a terrible disaster, we think that the insignificant claim for loss of baggage was not such as to affect the judgment of the juror in this case.

Coming now to consider the errors assigned in respect to the instructions of the court both before and after argument, defendant complains of three special requests to charge before argument and certain parts of the general charge. The substance of the instructions given before argument briefly summarized, is to the effect (1) that if domestic animals injure any person or property while wrongfully in a place where the injury is done, the owner may be liable without notice that the animal was accustomed to do mischief, and (2) that defendant, Burton, knowing that his three horses had strayed from their enclosure through the open gates, was obliged to take reasonable steps to pursue them or to capture them, or prevent them from straying onto the public highway; (3) that defendant, Burton, as the owner of the horse which struck the Sutfin automobile, is responsible for negligence in its keeping whereby damage is proximately occasioned.

That part of the general charge in respect to which error is claimed, is as follows:

“As has been said to you briefly in the special requests the owner of livestock is chargeable with knowledge of the propensities of that livestock. Any person who owns an animal is chargeable with knowledge of what that animal is likely to do.

“In this case, this defendant, Mr. Burton, might be, if you find that to be the fact, chargeable with knowledge that' many animals, including horses, take fright at the glare of lights that are carried by automobiles when driven in the night season, and may be chargeable with knowledge that when horses which are loose are thus frightened, they are as apt, by reason of their fright, to run directly into the front of the automobile or immediately across in front of it, as they are to make any other kind of move.”

We have examined these instructions and have compared them with the case of Drew v. Gross, 112 Oh St 485 (decided Apr. 28, 1925) from which the instructions were taken. In our opinion, the instant case is a stronger case on the facts than Drew v. Gross, but the same principles of law apply. In that case, the supreme court held, in an opinion by Allen J., concurred in by a unanimous court, that the owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned to another in his person or property. The supreme court also held that it is a question of fact for the jury, whether an owner of horses who turned them loose, unattended, in a field adjacent to a much travelled highway, in the night time, the fence of which field was in such defective condition that the horses might' easily stray out onto the highway, could have anticipated that one of the horses would stray onto the highway and collide with an automobile thereon.

In the case of Plugfelder v. Convent of Good Shepard, 55 Oh Ap 158 (1936, 6th Dist. Ct. of Appeals, Lucas Co.), the syllabus provides:

1. “The owner of a bull which has found its way out of a defective enclosure and has gone onto a highway where it is struck by a motor vehicle, resulting in injury to the driver thereof, may be held liable in an action in tort regardless of whether or not the animal had vicious propensities, or the owner’s knowledge thereof. The negligence of the owner in such case is a jury question.

2. “Where a bull suddenly leaps out of a ditch onto a public highway and is struck by a heavy motor truck, the assured clear distance statute is.not applicable as a rule of negligence per se, but the issue of contributory negligence of the motor truck becomes a question of due care.”

In the instant case, we do not have the fact of a defective fence, but rather the positive act of the owner in opening the gates to a pasture where the horses were kept, permitting them to escape to a place where they could and did stray onto the public highway. In the instant case also, there is the additional fact of the immediate knowledge of the escape of the animals, and knowledge of their propensities. In addition, defendant was familiar with the terrain and knew the paths leading to the open highway. Also, there were means at hand, if not to recapture, at least to prevent the animals from straying onto the highway. Under these circumstances, it became a question of fact for the jury to determine, whether defendant could, or could not, reasonably have anticipated the occurrence which resulted in the accidental injury and ensuing death of plaintiff’s decedent. In other words, the principal test is one of reasonable foreseeability, under all of the facts and circumstances, and this is for the determination of the jury under proper instructions by the trial court. The law on this subject is so well stated, and is so pertinent, that we deem it well to quote in part from Drew v. Gross, supra, commencing at page 489, as follows:

“But this is not an action based upon the fence law, but an action in tort, arising, as claimed, out of the negligence of the owner of live stock in permitting the same to run loose and unattended, in the night time iñ a field, practically unenclosed, abutting upon a public highway. * * * There is no question but that it would have been evidence of negligence to show that the owner had turned his horses directly onto a much travelled highway, unattended, in the night season. Ruling Case Law Vol. 1, pg. 1094; Ingham on Animals, p. 338.

“The owner of a domestic animal is responsible for negligence in its keeping whereby damage is occasioned. The principal test as to whether the owner is or is not negligent, is whether he could or could not reasonably have anticipated the occurrence which resulted in the injury. It is a question of fact for the jury whether an owner of horses who turns them loose unattended into a field adjacent to a much traveled highway in the nightime, the fence of which field is in such defective condition that the horses may easily stray out onto the highway, could have anticipated that one of the horses would stray out onto the highway and collide with an automobile thereon.

“The owner of livestock is chargeable with knowledge of the propensities of his livestock, and is bound to know that horses or cattle when placed in an inclosure where the fence is so defective that they may easily pass out of the inclosure and onto the adjacent property will probably do so.

“It is common knowledge that many animals, including horses, easily take fright at the glare of the lights that are carried by automobiles, when driven in the night season, and it is also common knowledge that when horses which are loose are thus frightened they are as apt, by reason of their fright, to run directly into the front of the automobile, or immediately across in front of it, as they are to make any other kind of movement.

“If it be a negligent act to turn horses, in the night time, loose and unattended out onto a highway much used for travel by motor vehicles that may be lawfully driven thereon at a speed two or three times greater than horse-drawn vehicles, which travel the same highway, then it is some evidence of negligence to turn horses into a field adjacent to the highway in the night time, if the fence be in such defective condition that the animals may easily stray out onto the highway. If domestic animals injure any person or property while wrongfully in the place where the injury was done, the owner is liable, without notice that the animal was accustomed to do wrong or mischief. Thus, a person who allows his horses to be at large upon a city sidewalk is liable for damages occasioned by them, if he could reasonably have foreseen that they would cause such damage. Gary, a minor, v. Arnold, Admrs. 175 I. App. 365; Hardiman v. Wholley, 172 Mass. 411, 52 N. E. 518, 70 Am. St. Rep. 292; Healey v. Ballantine, 66 N. J. L. 339, 49 A. 511.” (Emphasis ours.)

While authority in other jurisdictions is not necessary to support the decision of Drew v. Gross, supra, it is very interesting and persuasive to note that the rule laid down in Drew v. Gross is in complete harmony with decisions of other states, particularly in the Northern section of the United States. The Supreme Court of Pennsylvania, in a unanimous decision under date of Mar. 23, 1942, in the case of Bender v. Welsh, 344 Pa. 392, 25 At. Rep. (2d) 182, after first calling attention to the common law rule to the effect that an owner of domestic animals was under no legal obligation to restrain them from going upon the highway unattended, unless he had knowledge of their vicious propensities, went on to say:

“The reason for the rule was that at the time of its origin, there was little likelihood of danger from stray domestic animals on the highway. The widespread use of the motor vehicle has changed the situation, however, and the rule adapted to present-day conditions is that stated in the Restatement of Torts, Sec. 518-G): * * *

‘one who possesses or harbors a domestic animal which he does not have reason to know to be abnormally dangerous, but which is likely to do harm unless controlled, is subject to liability for harm done by such animal, but only if (a) he fails to exercise reasonable care to confine or otherwise control it, and (b), the harm is of a sort which it is normal for animals of its class to do.’

In determining whether the instant case comes within the rule of the Restatement, we can safely say without discussion that the second requisite has been satisfied; an unattended horse on the highway at night is in obvious danger of becoming involved in a collision with an automobile which is being carefully driven. The point of contention is in the first requisite. The question is whether plaintiffs have presented sufficient evidence to justify the jury in finding that defendants were negligent, the burden of proof being on plaintiffs.

Negligence is not to be presumed by the mere happening of an accident. Rennie v. Schepps, 297 Pa. 39, 41, 146 A. 261. But if the thing which causes the injury is shown to be under the management of defendant, and the accident is such as in the ordinary course of events would not happen if defendant who has the management, uses proper care, the burden is then placed on defendant, not to explain the accident, but to show that he used due care. Maltz v. Carter, 311 Pa. 550, 166 A. 852; Knox v. Simmerman, 301 Pa. 1, 151 A. 678; Folk v. Schaeffer, 186 Pa. 253, 40 A. 401; Devereaux v. Caldin, 127 Pa. Super. 595, 193 A. 372; Young v. Yellow Cab Co., 118 Pa. Super. 495, 180 A. 63; Hammil v. Phila. Rapid Trans. Co., 98 Pa. Super. 242; Latella v. Breyer Ice Cream Co. 87 Pa. Super. 325; Helfrich v. Gurnari, 78 Pa. Super. 449. If he does not show this to the jury’s satisfaction, it may infer that he was negligent. Thus, in Folk v. Schaeffer, supra, where plaintiff was injured through the slipping of a knot tied by defendant, it was held that the bare fact that the knot slipped permitted the jury to infer want of care by defendant in making it, because ordinarily a knot properly made does not slip. Likewise, horses which are properly confined ordinarily do not escape. Hence, the presence of an unattended horse on the highway is sufficient evidence to allow the jury to infer negligence- on the part of those whose duty it was to restrain him, and this has been held in a number of cases including Tassoni v. LeBoutillier, 130 Pa. Super. 303, 196 A. 534; Felsch v. Schlue, 194 Iowa 1220, 191 N. W. 63; Dickson v. McCoy, 39 N. Y. 400, Doherty v. Sweetzer 82 Hun. 556, 31 N. Y. S. 649; Kenney v. Antonetti, 211 Cal. 336, 295 P. 341 and Anderson v. I. M. Jameson Corp. 7 Cal (2d) 60, 59 Pa. (2) 962. The reason justifying the rule is aptly stated in Kenney v. Antonetti, supra 211 Cal. at p. 340, 295 P. at p. 342.

“ ‘Under any but exceptional circumstances, the exercise of ordinary care will serve to keep unattended animals in their proper inclosures. In these days of rapid automobile transportation, the extreme hazard to drivers and passengers, of animals straying unattended on the roads at night cannot be over-estimated. The driver is placed in a well-nigh helpless position because of the tendency of an animal to spring out of the darkness in front of a car when blinded or hypnotized by its headlights. Against this contingency, drivers should be protected by having our roads clear of such obstructions, and every owner of livestock should make an earnest effort to so control their movements with due care that the lives of others may not be thereby endangered.’ ” (Emphasis ours.)

In the case of Smith v. Whitlock, 19 S. E. (2d) 617, (W. Va. Sup. Ct. of App. 1942) the court in the 2nd paragraph of the headnotes said:

“Independent of any statute, the owner of a horse negligently permitted to run at large on a public highway, is liable for injury done by such horse to a traveler thereon, if, from the character of the highway, the volume and speed of traffic thereon, the time of day, or other attendant circumstances, the owner should reasonably have anticipated that injury to persons on the highway would result from the presence of the horse thereon.”

See also: Note following above case in 140 A. L. R. 742, under heading “Liability for damages to vehicle or injury to person riding therein by animal at large on street or highway,” which note refers to both the Calif, and Penna. cases, supra, at page 751.

Referring now to that part of the general charge in respect to which error is claimed by defendant, where the court charged in effect that defendant, Burton, might be, if they (the jury) find that to be a fact, chargeable with knowledge that many animals, including horses, take fright at the glare of headlights carried by automobiles when driven at night, and may be chargeable with knowledge that when horses are thus frightened they are as apt, by reason of their fright, to run directly in front of an automobile as they are to make any other kind of move. We think the claimed error in this respect cannot be sustained.

While there was no specific charge of negligence contained in the petition, to this effect, nevertheless it was an issue developed by the evidence, on which the court could properly charge. The instructions as given follow the dictum in Drew v. Gross, supra, almost verbatim as found at page 490, hereinbefore quoted.

We conclude, therefore, that the special charges as given before argument, and the general charge taken in its entirety, are in harmony with the law on the subject and applicable to the facts of the case.

We conclude that there was no prejudicial error affecting substantial rights of defendant in respect to the charges given before and after argument, and for this reason the errors assigned on this ground will be overruled.

Finally, we come to consider the error assigned that the verdict is grossly excessive, appearing to have been rendered under the influence of passion and prejudice.

We have given considerable attention to this issue raised on this appeal. Sec. 10509-167 GC provides in part that:

“A jury may give such damages as it may think in proportion to the pecuniary injury resulting from such death for the persons respectively for whose benefit the action was brought.”

The general rule in respect to the measure of damages recoverable for wrongful death, may be gleaned from American Jurisprudence on the subject “Death,” Sec. 190 to 242, the gist of which is that in determining an amount of damages recoverable for wrongful death, it is proper to take into consideration such factors varying in individual cases, as the victim’s life expectancy, character, health, habits, talents, prospects, prior earnings, probable future earnings, needs of and contributions to defendant and current returns on investments.

It is clearly within the province of the jury to determine the amount of damages to be allowed in any particular action for wrongful death. In the recent case of Detoskey, Admrx. v. Ruan Transp. Corp. decided by the Supreme Court of Iowa, Dec. 13, 1949, appearing in 17 A. L. R. (2d) 826 at page 830, 40 N. E. (2) 4 it was held that in determining the possible value of a decedent’s estate, if he had lived out his expectancy the jury can and should consider the reduced purchasing power of a dollar as it is affected by changing economic conditions and the possible return on prime investments. Citing Dedman v. McKinley, 238 Iowa, 886, 892, 29 N. W. (2d) 337.

Concerning the purchasing power of the dollar, the court further states at page 830, as follows:

“A recent apparently authoritative source states that the relative purchasing power of a consumer’s dollar based on a $1 unit in 1914, has changed as follows: 1920-$.50; 1926-$.57; 1933-$.78; 1939-$.72; and in 1949-$.43. If these figures are approximately correct it merely goes to show the futility of endeavoring to determine the excessiveness of a verdict from a mathematical or comparative basis.”

The evidence in the instant case shows that decedent wife of plaintiff administrator, acted in a dual capacity in that she performed the usual domestic services for her husband, and gave assistance to her husband in his business. The husband and one son are engaged in the plumbing business. There Is evidence in the record showing that the decedent helped in her husband’s business in that she answered the telephone and routed the men on the jobs; she kept the books; she took care of invoices for supplies and materials and checked them; she assisted her husband in making out invoices for jobs done and after he had priced them she made out the invoices and sent them out and in general assisted in the business other than the actual doing of. plumbing work. She was 55 years of age and at the time of her death, under standard mortality tables, would have a life expectancy of about seventeen years.

We are of the opinion that under all the facts and circumstances developed in the evidence, the plaintiff is entitled to substantial damages. However, the members of this court are of the opinion that the verdict of the jury is excessive, but not induced by passion and prejudice. It might be that such verdict came about by virtue of lack of clarity of the court’s charge on the subject of earnings.

Therefore, a remittitur will be granted in the sum of Ten Thousand Dollars ($10,000.00) thus reducing the judgment to Twenty-Five Thousand, Five Hundred Dollars ($25,500.00). If the remittitur is accepted by plaintiff within ten (10) days from date of this judgment entry, the judgment of the common pleas court will be affirmed; otherwise, the judgment will be reversed for the reason that the damages awarded are excessive and the cause will be remanded for further proceedings according to law. Exc. Order see journal.

SKEEL, PJ, THOMPSON, J, concur.


author: By THE COURT.

text:
    CORRY, Exr., Plaintiff-Appellee, v. CENTRAL METHODIST CHURCH OF SPRINGFIELD, Defendant-Appellee, COVENANT PRESBYTERIAN CHURCH OF SPRINGFIELD, Defendant-Appellee, MEILING, Extrx., Defendant-Appellant, MEILING, as an individual, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 475.
    Decided November 4, 1950.

      Corry, Durfey, Martin & Browne, Springfield, for plaintiffappellee.
    Robert S. Ohlinger, Springfield, for Central Methodist Church, defendant-appellee.
    E. F. McKee, Springfield, for Covenant Presbyterian Church, defendant-appellee.
    Cole & Cole, Springfield, for May E. Meiling and May E. Meiling, Executrix, etc., defendant-appellant.
   OPINION

By THE COURT.

This is an appeal from the judgment of the Probate Court construing the will of Emma Kizer, deceased. The items of the will under consideration are the following:

ITEM ELEVEN: I hereby give and devise to my nieces, Nellie J. Kiser and E. May Meiling or the survivor of them, my real estate, located at No. 206 West Columbia Street, being part of Lot No. 109 Demint’s Addition to the City of Springfield, Ohio, to be theirs in equal shares, absolutely and in fee simple.

ITEM TWELVE: I hereby give and devise to my nieces, Nellie J. Kizer and E. May Meiling or the survivor of them, my real estate, located at No. 23 East Main Street and being known as part of Lot No. 59 Demint’s Addition to the City of Springfield, Ohio, in equal shares, absolutely and in fee simple.

ITEM THIRTEEN: I hereby give, bequeath and devise all the rest and residue of my property, real and personal, of every kind and description which I may own and have the right to dispose of at the time of my decease, to my nieces, Nellie J. Kizer and E. May Meiling, or to the survivor of them, in equal shares, absolutely and in fee simple.

ITEM FOURTEEN: In the event that either of my nieces, Nellie J. Kizer and E. May Meiling, shall predecease me, then in such event, it is my will that the said niece so surviving shall, after payment of my debts, legacies and costs of administration, have the entire part of my estate, absolutely and in fee simple.

The record discloses that both of the aforesaid beneficiaries survived the testatrix, but that Nellie J. Kizer, one of the beneficiaries, is now deceased. The question presented is whether she took an estate in fee simple or a life estate only with the remainder to the survivor. The trial court held that each of the devisees and legatees became vested of the one-half interest of the real estate described therein in fee simple upon the death of Emma Kizer; that upon the death of Nellie J. Kizer her one-half interest became subject to distribution in accordance with her last will and testament. We are of the opinion that the judgment of the court correctly interprets the true intention of the testatrix as expressed in the will. The law seems to be well settled that the court will construe all devises and bequests as vesting in the devisee or legatee upon the death of the testator unless the intention to postpone such vesting to some future time is clearly expressed therein. 41 Ó. Jur., Section 614, p. 727. We find no such intention clearly expressed in the will of Emma Kizer.

In the case of Renner v. Williams, 71 Oh St 340, at page 357 the Court says:

“In England from an early period to the present time and quite generally in the United States, a prevailing rule of construction has been that when the word “survivor” occurs in a will, the survivorship is understood to relate to the time when the will shall take effect, that is, the time of the testator’s death, unless a contrary intent is shown in the will. This is not an arbitrary rule, as counsel for the defendant seem to think. It is based upon clear and satisfactory reasoning. Unless it fairly appears from the will that he does not do so, the testator must be presumed to be contemplating and providing for the devolution of his property at the time of his death. Therefore when a testator devises or bequeaths to two or more jointly, it is understood that the devise or legacy takes effect immediately upon his death, when the estate vests in the devisee, or at the period of payment or distribution, as the case may be. If the will clearly discloses a different intention as to the time when devises shall vest or legacies be payable, such intention will of course control in the interpretation of the will. It seems conclusively to follow that when a testator provides merely that in case of the death of one or more of the devisees or legatees, the survivor or survivors shall take the provision made in the will, he refers to a survivorship which shall exist at the time a devise of real estate may vest or when a legacy may be payable.”

We are not unmindful of the rule that if consistent each and all of the provisions of a will are to be given full force and effect, but in case of ambiguity or uncertainty the entire will should be considered. Under the rule of'law pronounced in the Renner case, supra, it seems clear that Items Eleven, Twelve and Thirteen of the will relate to the time of the death of the testatrix. Item Fourteen says the same in express terms. Therefore, this item must be interpreted as further explaining the intention of the testatrix. See also, Parkhurst v. Jonesberg, et al., 48 N. E. (2d), 538.

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

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


author: By SKEEL, PJ.

text:
    RENNER, Admrx., Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 685.
    Decided May 17, 1951.

      L. M. Kyes, East Palestine, Falls, Hazel & Kerr, Youngstown, for plaintiff-appellee.
    Burt, Carson, Lynch & Vogelgesang, Canton, for defendant-appellant.
    (SKEEL, PJ, HURD, J, THOMPSON, J, of 8th District sitting by designation in the 7th District.)
   OPINION

By SKEEL, PJ.

This cause comes to this court on questions of law from a judgment of the Common Pleas Court of Columbiana County for the plaintiff, entered upon the verdict of the jury, the action being one for wrongful death.

The decedent came to his death in a grade crossing accident at the intersection of North Market Street and the defendant’s tracks in the City of East Palestine, Ohio, at about one A. M. April 28, 1935.

The decedent was a resident of Enon Valley, Pennsylvania. On Saturday night, April 27, he and his two brothers went for a ride in the new Plymouth automobile of Jesse Walker. They left their home about 10 P. M.. .They visited a tavern near East Palestine. At about 1 A. M., of the morning of April 28th, upon leaving the tavern they drove South on North Market Street in East Palestine. The testimony as to the manner in which they were driving is in conflict, the plaintiff’s witnesses testifying that they were going 20 to 25 miles per hour, while defendant’s witnesses describe the auto as going over 50 miles per hour. In all events, as they neared the crossing there is testimony in the record to the effect that the defendant’s gate tender, then on duty at the crossing, started to lower the crossing gates for an approaching train, and after putting them almost down they were momentarily raised and as the automobile proceeded forward the speed slackened momentarily and then went forward, and the North gate then came down and struck the automobile just in front of the windshield. The automobile then destroyed the gate, and proceeded on to the track where it was struck by defendant’s train proceeding at a high rate of speed, to-wit, about sixty miles per hour. All four boys were instantly killed.

Thereafter, one L. M. Kyes, upon application made to the Probate Court of Columbiana County was appointed ancillary administrator of the estate of Omar W. Renner and on November 7, 1935, a petition was filed against the defendant for wrongful death.

On June 15, 1936, the defendant filed a demurrer upon the ground that, as disclosed upon the face of the petition, the plaintiff did not have legal capacity to sue.

The court overruled the demurrer and after a number of other petitions and motions were filed and ruled upon, the case went to trial on the fourth amended petition and the answer filed thereto on May 22, 1944, resulting in a disagreement of the jury and retrial June 4, 1945, which trial resulted in the judgment from which this appeal has been taken.

After the demurrer was overruled, at the suggestion of the trial judge, a motion was filed in Probate Court to dismiss, for want of interest, the application of L. M. Kyes for appointment of ancillary administrator and to dissolve such administration. This motion was sustained by the Probate Court and such ancillary administration was dismissed. The order of dismissal was affirmed upon review.

Thereafter, on March 15, 1941, Anna B. Renner was appointed administratrix of the estate of Omar W. Renner in Lawrence County, Pa., and on April 22, 1941, as administratrix she made an application to the common pleas court of Columbiana County for leave to be substituted for L. M. Kyes, ancillary administratror, as plaintiff in the action, which application was granted and Anna B. Renner was substituted as party plaintiff on July 8, 1941 to which entry defendant entered its exception.

The defendant complains of the following errors:

1. Overruling demurrer to original petition on ground of lack of capacity of plaintiff to sue, and overruling objection to introduction of any testimony for the same reason.

2. Error in allowing substitution of Anna B. Renner, Administratrix in place of L. M. Kyes, Ancillary Administrator, and in overruling objection to introduction of any testimony for the same reason.

3. Excessive damages allowed to only two next of kin in full amount alleged to have been suffered by eight.

4. Verdict against the weight of the evidence.

5. Error in general charge as to raising gates.

6. Error in general charge as to warning by bell.

7. Error in general charge as to inference as to driver.

8. Error in failing to charge on effect of riding with known drunken driver as requested.

9. Error in failing to charge on burden to prove status of decedent as passenger, as requested.

10. Error in disregarding newly discovered evidence.

11. Error in overruling motion to refrain from further action for loss of jurisdiction, filed Oct. 17, 1949.

Whatever error could have been claimed because of the overruling of the defendant’s demurrer in which the capacity of the then plaintiff to maintain the action, was challenged, must now be considered in the light of the subsequent substitution of party plaintiff. If such substitution was proper and dates back to the filing of the action, then whatever error was committed in ruling upon the demurrer would no longer be available to the defendant. For that reason we direct our attention to the defendant’s second claim of error.

Did the court have the power to substitute a proper party plaintiff under §10509-167 GC, after the statute of limitations had run against the filing of a new action for the alleged wrongful death of the decedent?

It must be observed that there was no change in the cause of action as stated by plaintiff’s fourth amended petition, so that if the appointment of an administratrix as provided by law and her substitution as party plaintiff as the representative of the next of kin relates back to the filing of the original petition, then whatever lack of authority that might have been charged against the original plaintiff as ancillary administrator would have been cured.

The plaintiff relies on the case of Douglas v. Daniels Coal, Co., 135 Oh St 641, as authority for the court to make such substitution. In this case the plaintiff had brought the action as the personal representative of the next of kin in a wrongful death case. Her appointment as administratrix had never been legally completed although application had been made therefor. When this fact was discovered a motion was filed seeking to complete her appointment which was accomplished and a motion was made to correct the allegations of the petition with respect to the plaintiff’s capacity to bring the action which motion was granted, all of which took place after the statute of limitations had run. The court said:

“In the instant case the cause of action set up in the petition is in no way affected by the corrections contained in the amendment. The amendment corrects the allegations of the petition with respect to plaintiff’s capacity to sue and relates to the right of action as contra-distinguished from the cause of action. A right of action is remedial while a cause of action is substantive, and an amendment of the former does not affect the substance of the latter. See 1 Bouvier’s Law Dictionary (Rawles Rev.) 295; Pomeroy’s Code Remedies (5 Ed) 526 et seq., Sec. 346 et seq; 1 Cyc. 643. An amendment which does not substantially change the cause of action may be made even after the statute of limitations has run.

The requirement of the wrongful death statute that the prosecution of the action be in the name of the personal representative is no part of the cause of action itself, but relates merely to the right of action or remedy. That requirement was obviously intended for the benefit and protection of the surviving spouse, children and next of kin of a decedent, the real parties in interest. The personal representative is only a nominal part. Wolf Admr. v. Lake Erie & W. Ry. Co., 55 Oh St 517, 45 N. E. 708, 36 L. R. A. 812. Nor does the statute require that the personal representative shall bring the action (Wolf, Admr. v. Lake Erie & W. Ry. Co. supra) but merely provides that the action, if brought, shall be brought in the name of the personal representative. The only concern defendants have is that the action be brought in the name of the party authorized so that they may not again be hailed into court to answer for the same wrong.

We hold that where a widow institutes an action as administratrix, for damages for the wrongful death of her husband, under the mistaken belief that she had been duly appointed and had qualified as such, thereafter discovers her error and amends her petition so as to show that she was appointed administratrix after the expiration of the statute of limitation applicable to such action, the amended petition will relate back to the date of the filing of the petition, and the action will be deemed commenced within the time limited by statute.”

The supreme court followed the Douglas case, supra in the case of Moherman v. Nichols, 140 Oh St 450. See also, H. S. Leyman Co. v. Piggly Wiggly Corp., 45 Abs 528 (1944), and 123 A. L. R. note, page 768, where the author comments on the Douglas case. Likewise, in 8 A. L. R. (2d) page 51, in extending the comment on the Douglas case we find the following:

“As a general rule, either at common law or under statutes not providing expressly that the cause of action may be changed, the question whether an amendment substituting a new plaintiff for the original one will, as regards the statute of limitations, be regarded as the institution of a new action, depends upon whether such amendment will introduce a new cause of action in the case.

“If the substitution of plaintiffs by amendment does not in fact change the claim or cause of action such amendment relates back to the commencement thereof and the running of the statute of limitations is stopped at that point.”

See also; Alvez v. Toprohanian, 102 Pac (2d) 566; Amer. Nat. Bank of Enid v. Crews, 126 Pac (2d) 733.

We must conclude, therefore, that the court was vested with power to substitute a correct party plaintiff and that such substitution related back to the date of the filing of the action. The defendant’s first and second claims of error are, therefore, overruled.

The members of the court are unable to agree that the verdict is against the manifest weight of the evidence, and therefore, the defendant’s fourth claim of error is overruled. Likewise, from the special finding of fact returned by the jury as follows:

“Q. Do you find that any of the boys in the car were either drunk or under the influence of liquor at the time of the collision?

“A. No.”

the court must conclude the defendant’s 8th claim of error, which is founded on the failure of the court to charge on the duty of a passenger riding with a known drunken driver, is not well taken. This claim is, therefore overruled.

We also overrule claims of error Nos. 10 and 11.

We do not find that the evidence set forth in the affidavit of Mrs. Elsie Bacon filed with the defendant’s motion for new trial would be in the category of newly discovered evidence. Likewise, the court did not lose jurisdiction of this cause by the delay of over four years in ruling on the defendant’s motion for new trial under the provisions of §1685 GC.

Coming now to the question of whether or not there is any evidence from which the jury could find that the plaintiff’s allegation that the decedent was a passenger (which allegation is denied by defendant’s answer) could be sustained, there is no direct evidence to support this allegation except for the testimony of the plaintiff, that when the boys left her home, Walker, who was the owner of the automobile, was driving and that this decedent was riding in the back seat. The record is silent as to who was driving at the. moment of the collision. There is no question but that Walker was the owner of the automobile and that it was a new 1934 Plymouth which he had owned but a few months. It is objected that the mother’s testimony of what took place when the boys left their home is of no value because the boys left the car at the tavern some time before the collision. This does not, however, destroy the admissibility of such evidence when considered in the light of the inference which may be drawn from the fact that generally an owner is likely to drive his own automobile. We find no error in the General Charge in this respect.

The other errors claimed in the court’s general charge are not well taken. It is our opinion that the trial court in its opinion filed upon the overruling of the motion for new trial correctly disposed of these claims.

For the foregoing reasons the judgment of the trial court is affirmed.

HURD, J, THOMPSON, J, concur.


text:
    MARTIN, Ex Parte, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4570.
    Decided February 21, 1951.
    C. William O’Neill, Atty. Geni., Max Dennis, Asst. Atty. Geni., Columbus, for respondent.
    Cecil D. Martin, Columbus, for petitioner.
   OPINION

By THE COURT.

This is a motion seeking leave to appeal from a judgment in a criminal matter, more than 30 days after said judgment entry. Sec. 13459-4 GC permits such an appeal but the same will be allowed only upon good cause being shown. State v. McGahan, 86 Oh Ap 283. This appellant has set forth no grounds which would constitute a good cause for allowing the appeal. The motion will therefore be denied.

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


text:
    SIMS, Ex Parte, In re. Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4497.
    Decided August 7, 1950.
    Julius D. Sims, Columbus, for himself.
    Ralph J. Bartlett, Pros. Atty., Edmund B. Paxton, Asst. Pros. Atty., Columbus, for State of Ohio, plaintiff-appellee.
   OPINION

By THE COURT.

This is a motion seeking leave to appeal more than thirty days after the judgment from a sentence imposed under the Habitual Criminal Act. The record discloses that prior to this conviction the appellant was sentenced for a term of from one to seven years on a charge of grand larceny; that subsequent thereto he was convicted under the Habitual Criminal Act and sentenced thereunder, but the prior sentence of one to seven years was not vacated as required by §13744-3 GC. The judgment entry provides that the two sentences are to be served concurrently. It will be noted that the appeal was not directed to the first sentence but to the later one under the Habitual Criminal Act. We are of the opinion that the appeal is directed to the wrong case. The statute clearly provides that the sentence may be imposed after being sentenced under the prior conviction. The error committed was in the failure to vacate the prior sentence, and not the imposition of the latter one. A person who has served his entire sentence under the last conviction may be indicted and convicted as an habitual criminal. State v. Sudekatus, 72 Oh Ap 165; 27 O. O. 60, 51 N. E. (2d), 22.

An additional reason for denying the motion is that the record now discloses that on July 10, 1950, a nunc pro tunc entry was filed in case No. 29,334 which shows that the prior sentence in case No. 29,187 has been set aside and revoked and that credit has been given for the time served on the prior conviction. The error has therefore been corrected.

The motion will be overruled.

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


author: By THOMAS, J.

text:
    GIREAK, Plaintiff, v. INDUSTRIAL COMMISSION OF OHIO, and COPPERWELD STEEL COMPANY, Defendants.
    Common Pleas Court, Trumbull County.
    No. 55701.
    Decided May 4, 1951.

      Marvin Traxler, Youngstown, for plaintiff.
    Henry Kosling, on behalf of The Industrial Commission of Ohio.
    Robert G. Day, of Hoppe, Day & Ford, Warren, on behalf of defendant Copperweld Steel Company.
   OPINION

By THOMAS, J.

In this action the Plaintiff appeals from an order of The Industrial Commission disallowing her claim for a death benefit because of her husband’s death.

Now to be decided is the propriety of Defendant’s Motions to remand the rehearing record to The Industrial Commission (a) to take additional testimony, and (b) to incorporate the testimony of one witness and one exhibit, both claimed to have been omitted from the rehearing record by mistake.

Earlier the Employer sought to be made a party Defendant to this action, and to move for a remand of the rehearing record to The Industrial Commission for the taking of the same additional testimony to which one of Defendant’s present Motions is now addressed.

The Employer was held to be an improper party to this action, which ruling by this Court was affirmed on appeal.

Over Plaintiff’s objection, based on this former ruling, the Employer is being permitted to participate in the hearing on Defendant’s Motions to remand.

Though the Employer is not a proper party to this action, he nevertheless has an interest in the prosecution of these Motions since the granting of one or both would refer the rehearing record back to The Industrial Commission for further rehearing proceedings. In such proceedings he would have the right to “participate fully.” Sec. 1465-90 GC (as amended September 13, 1947).

Basic to the disposition of both of Defendant’s Motions to remand is the determination of the power of this court to remand a rehearing record in a Workmen’s Compensation case to The Industrial Commission for additional testimony.

No express provision of the Workmen’s Compensation Laws authorizes a remand of either the case or the rehearing record to The Industrial Commission.

However it has been held that “if on the examination of the transcript, it appears that some error, omission, or mistake has been made by the commission in the preparation of the Transcript, undoubtedly the Common Pleas Court, as the Appellate Court, would have jurisdiction and power in its discretion to order a correction of the record and Transcript of the record' to preserve the legal rights of the parties.” Pyle v. Industrial Commission, 139 Oh St 644 at p. 653.

But the parties may not augment the rehearing record by stipulation made in the Common Pleas Court, Drakulich v. Industrial Commission, 137 Oh St 82. At the same time the Supreme Court tacitly recognizes that the Common Pleas Court was within its power in granting — -prior to the making of the stipulation — the Claimant’s Motion to remand the case for additional testimony.

These decisions permit the conclusion that the Supreme Court upholds the power of a Common Pleas Court to remand a rehearing record to The Industrial Commission for additional testimony and for correction of the record.

Even without the benefit of these decisions, a recognition of the existence of power in the Common Pleas Court to remand either the case or the rehearing record alone is justly warranted.

Ordinarily an appeal from a decision by an Administrative agency to Common Pleas Court is not a trial de novo. (Farrand v. State Medical Board, 151 Oh St 222.)

But a claimant’s appeal from an order of The Industrial Commission which disallows his claim entitles the Claimant to a trial de novo. Sec. 1465-90 GC.

Hearing the case on the merits the Court or Jury should decide the case upon all available evidence that is competent and relevant.

Where a party requests the reopening of a case to permit introduction of further evidence Courts should always exercise their discretion in favor of full development of all of the facts. Siegal v. Yellow Cab Company, 33 Oh Ap 438 p. 441.

The duty of the Court in the trial of a case to permit a full development of all pertinent and competent evidence vests the Court of Common Pleas with implied power to remand a rehearing record to The Industrial Commission for reopening and for the taking of such additional testimony.

As long as the requested remand is made prior to the trial of the case the conditions upon which a Court should grant a requested remand plainly should be more liberal than those which govern the granting of a Motion for new trial upon newly discovered evidence. Sheen v. Kubiac, 131 Oh St 52. In the former situation the case is yet to be tried, while in the latter situation the case has been tried.

It is concluded that, in the exercise of its discretion a Court of Common Pleas should grant the requested remand if made before trial and if the Court is satisfied that the new evidence will be competent, and relevant to the issues.

The paramount importance of giving the trier of the facts all available evidence, so long as it is competent and relevant to the issues, overrides any argument that due diligence should also be a condition of a party’s right to remand.

A resume of the testimony which the defendant seeks to prove as a part of the rehearing record includes the following points.

That Claimant Plaintiff, under the name of Katy Gurik, brought suit in Mahoning County Common Pleas Court in 1931 on a spurious claim for personal injuries.

That the same spurious incident was also the basis of a suit for damages brought by Mary Butto, the mother of Rocco Butto an important witness in the within action. Her husband, Filip Butto, father of Rocco, together with John Keifer, the Defendant in the actions brought by Katy Gurik, Mary Butto, and others received a part of a sum of $2,700.00 received in settlement of said suits.

That Keifer and Butto were indicted in Mahoning County on charges of taking said money under false pretenses and plead guilty in 1936 and 1937 respectively.

That the decedent husband of Claimant Plaintiff sued her for divorce in this County, and his Petition claimed that she hit him over the head with a poker. It is suggested that this blow on the head may be the true cause of Decedent’s death, the cause of his death being a major issue in the present case.

This proposed testimony seems elearly relevant to the issues. The Plaintiff herself testified at the rehearing. She described the physical condition of her decedent husband before he went to work and on his return home on June 21, 1944, the alleged date of the claimed injury. Plaintiff will rely on her testimony to make her case. Any evidence therefore that may attack her credibility is relevant to the issues. It is clear that the testimony which Defendant proposes to add to the rehearing record, if established, would challenge the Plaintiff’s credibility. Proof that she once made a spurious claim for personal injury would be a fact which might tip the scales in deciding whether her testimony in this case is worthy of belief.

Similarly proof of a previous head injury — as indicated by a Petition said to have been filed by the decedent — would be relevant in considering the cause of death, it being here claimed that his death resulted from being struck in the head by a crane magnet.

Defendant’s Motion to remand the rehearing record for the taking of the indicated additional testimony indicated will be GRANTED

Defendant also moves to remand the rehearing record to The Industrial Commission to correct the record by including the testimony of John Haller and an exhibit known as Claimant’s exhibit 3, which testimony and exhibit are claimed to have been omitted from the rehearing record by mistake.

Haller testified and the exhibit was offered at the hearing of the claim before the Canton Regional Claims Board.

At the hearing on the Motions to remand the testimony was in sharp dispute as to whether the parties intended to include said testimony and exhibit in the rehearing record.

Howéver since it has heretofore been decided to remand the rehearing record to The Industrial Commission, for reopening, at such time the testimony of John Haller and Claimant’s exhibit 3, taken before the Regional Claims Board, may be incorporated in the rehearing record, subject, of course to any objections to the exhibit or to any part of the testimony.

One question remains. Should the appeal be dismissed and the claim be remanded to The Industrial Commission, or should the appeal be retained here, and only the rehearing record remanded?

The latter course will be followed. Since the testimony sought to be added, will presumably aid the case of the defendant, it is not likely that the Commission would allow the claim were it reviewed upon the completion of the rehearing record.

Accordingly the record is being remanded solely for the addition of the indicated testimony — either through further cross examination of the Plaintiff or further direct testimony or both — and the addition of the testimony of John Haller and Claimant’s exhibit 3. The remand is not intended to be broad enough to include any further decision by the Commission. For if the remand were that broad, the entire jurisdiction of this matter would revest in the Commission, and this appeal would thereby terminate.


author: By MILLER, PJ. By THE COURT.

text:
    HARRIS, Petitioner, v. ALVIS, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4470.
    Decided November 18, 1950.
    Robert L. Ratchford, Columbus, for petitioner.
    Hon. Herbert S. Duffy, Atty Geni., Alan E. Schwarzwalder, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By MILLER, PJ.

The petitioner is seeking by writ of habeas corpus his release from the Ohio Penitentiary where he is serving a sentence imposed upon him by the Common Pleas Court of Cuyahoga County. The case is submitted to this Court upon the following agreed statement of facts:

“This petitioner was arrested September 11, 1933, in Cuyahoga County, State of Ohio, upon the charge of robbery; he plead guilty to said charge; he was placed on probation in October, 1933; he violated his probation and was sent to Ohio State Reformatory in September, 1934; he was paroled from Ohio State Reformatory in 1935; he violated his parole by leaving the State of Ohio.

“Petitioner went to the State of New York and while there was charged with burglary in the third degree to which he made a plea of guilty in Onondago County, State of New York, March 23, 1937; he was sentenced by the Onondago County Court as a second offender due to his previous conviction in Ohio; on June 17, 1943, Justice Swift of the Supreme Court, Wyoming County, State of New York, remanded the petitioner into the custody of the Sheriff of Onondago County for re-sentence; this order was based on a finding of the Court that due to the correct age of the petitioner when sentenced in Ohio, the petitioner was not a second offender in New York but a first offender and, therefore, should be re-sentenced as such; he was later paroled by New York.

“Petitioner was returned .to Ohio State Reformatory in December, 1949, as a parole violator because he had left this state; he was transferred to the Ohio State Penitentiary in March of 1950.

“The actual date of birth of this petitioner, who had been born out of wedlock, had never been known by him until several years after he was sentenced in Cuyahoga County, State of Ohio; it is now ascertained that the petitioner was born on April 2, 1918, and was, therefore, fifteen (15) years of age at the time of his arrest and plea in Cuyahoga County, State of Ohio; no proceedings of any kind or nature were ever had before a Juvenile Judge, or any Juvenile Court, after this petitioner’s arrest in September, 1933, in Cuyahoga County, State of Ohio.

“At the time of his arraignment and conviction in the Cuyahoga County Common Pleas Court the petitioner made no statement as to his age for the reason that he claimed he did not know. The Court ordered an investigation to be conducted as to the petitioner’s age. As a result of that investigation Judge Silbert was of the opinion that the petitioner was over eighteen years of age, to wit, nineteen years of age.”

The question presented is'whether the trial court had jurisdiction to impose the sentence since the petitioner was never brought before the Juvenile Court of Cuyahoga County for adjudication, under the provisions of §1659 GC as amended in 1931. This section provides:

“When a minor under the age of eighteen years is arrested on and under any charge, complaint, affidavit, or indictment, whether for a felony or a misdemeanor, such child shall be taken directly before the juvenile judge; if the child is taken before a justice of the peace, judge of the police or municipal court or court of common pleas other than a juvenile court, it shall be the duty of such justice of the peace or such judge of the police or municipal court or court of common pleas to transfer the case to the juvenile judge exercising the jurisdiction herein provided. The officers having such child in charge shall take it before such juvenile judge, who shall proceed to hear and dispose of the case in the same manner as if the child had been brought before the juvenile judge in the first instance. Upon such transfer or taking of child before such juvenile judge, all further proceedings upon or under the charge, complaint, information or indictment shall be discontinued in the court of said justice of the peace, police or municipal judge or judge of the court of common pleas other than a juvenile court, and the case against or relating to such child shall thenceforth be within the exclusive jurisdiction of such juvenile judge and shall be deemed to be upon a complaint filed in such juvenile court as fully as if the appearance of such child had been upon a complaint filed in and a citation or warrant of arrest originally issued out of and by such juvenile court.”

It will be noted that upon the case being transferred to the Juvenile Court it shall have exclusive jurisdiction, but this was not done. Therefore the Juvenile Court never acquired jurisdiction over this petitioner. It was a right to which he was entitled but in failing to insist upon this before the trial court it must be assumed that he waived the same. This may be done as it was held in State of Ohio v. Klingenberger, 113 Oh St 418, syllabus 1:

“A minor charged with felony waives his right to object to the jurisdiction of the court of common pleas on the ground of his minority, by not filing a plea in abatement to an indictment in the court of common pleas.”

In discussing the question of jurisdiction over a minor Judge Allen says at page 421:

“Under §13622 GC, the proper method to raise this objection was by a plea in abatement, instead of filing a plea in abatement the defendant pleaded not guilty. Sec. 13625, (now §13439-7) GC, provides that the accused by demurring to an indictment, or pleading in bar, or the general issue, shall be taken to have waived all defects which may be excepted to by a motion to quash or plea in abatement. This rule has been construed and upheld in a number of authorities with regard to the motion to quash, the latest of which is State v. Schultz, 96 Oh St, 114, 117 N. E., 30, holding that by demurring, pleading in bar, or by pleading to the general issue, the defendant in a criminal cause is held to have waived the defects which might be taken advantage of by motion to quash. The reasoning in those authorities certainly applies to pleas in abatement. However, no case has been cited from this jurisdiction in which it has been held that this rule applies to a minor charged with crime, even though represented, as in this case, by an attorney, and therefore defendant claims that the rule should not apply.

“It is true that the general doctrine is broadly stated to be that a waiver made by an infant will be considered void. 40 Cyc., 267; Booth v. Goodwin, 29 Ark., 633. However, the authorities that we have found in favor of this rule arise only in civil actions. On the other hand, even in civil cases there is authority to the effect that an infant must object to the jurisdiction of the courts in the same way and at the same time as adults. 31 Corpus Juris, 1160. Boyd v. Martin, 9 Heisk. (56 Tenn.) 382. No decision has been cited to the effect that an infant cannot waive his procedural rights in the conduct of a criminal case.

“No authority upon this precise point exists in the state of Ohio, and the question therefore is open here. The argument of the defendant is that, as waiver arises out of the intentional relinquishment of a known right, the infant, who, it is claimed, cannot understand and appreciate to the same extent as an adult the meaning of legal steps taken or omitted in his behalf, cannot waive his rights in a criminal cause. However, some minors understand and appreciate better than some adults charged with crime, the meaning of legal procedure in their own cases. It is unsafe to depend upon such a generalization in deciding this point. Moreover, the criminal statutes in certain respects deal with the minor as if he were sui juris. For example, the right to waive defects which might be excepted to by motion to quash, or by plea in abatement, is not to be compared in its importance with the far-reaching power exercised by the infant when he pleads guilty to a felony, as he is permitted to do under Ohio statutes and under the general law. Taylor v. Means, 139 Ga., 578, 77 S. E., 373; 2 Bishop’s Criminal Procedure (2d Ed.), Section 959c; 31 C. J., 1096. Since the statute upon waiver, above cited (§13625 GO, makes no exception in the case of infants, and no case has been cited in support of the proposition, we hold that the state is correct in its contention that the defendant waived his right to question the jurisdiction of the court on the ground of his minority when he failed to file a plea in abatement.”

The Common Pleas Court is of general original jurisdiction in criminal matters. The Constitution, Section 4, Article IV, provides that the same shall be fixed by law. The provision is not self-executing, but requires appropriate legislation. In compliance with this authority §13422-5 GC has been enacted, which provides:

“The court of common pleas shall have original jurisdiction of all crimes and offenses, except in cases of minor offenses, the exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.”

It will, therefore, be seen that the Common Pleas Court had jurisdiction of the subject matter of the action. Juvenile Code, §1639-1, et seq., GC, does not give the Juvenile Court exclusive jurisdiction of the subject matter, as §1681 GC provides that after complying with certain conditions, “The same proceedings shall be had thereafter upon such complaint as now authorized by law for indictment, trial, judgment and sentence of any other person charged with a felony.” Sec. 1659 GC vests exclusive jurisdiction over the infant only upon the case being transferred to it. Jurisdiction over the person may always be waived even by a minor. State of Ohio v. Klingenberger, supra. This -identical question was passed upon in the case of In re Evans, 67 Oh Ap 66, which provides in syllabi 1, 2 and 3:

“1. A writ of habeas corpus will not be granted to release from the state reformatory a minor who, upon being arrested and taken before the Municipal Court, stated his age to be 19 years, when in fact he was but 17 years of age, and thereafter was indicted, pleaded guilty and was convicted in the Common Pleas Court on a criminal charge.

“2. The Juvenile Court Code, §1639-1 et seq., GC, does not make the jurisdiction of the Juvenile. Court exclusive throughout. It vests jurisdiction over the infant, not the crime.

“3. Jurisdiction over the person may always be waived, and waived even by a minor.”

It is our conclusion that the trial court had jurisdiction of the subject of the action and that the petitioner waived the jurisdictional question over his person when he entered a plea of guilty. In the case of In re Burson, 152 Oh St 375, it was held that a plea of guilty to an indictment raises a presumption of waiver to a constitutional right and such waiver may be either express or implied. If a constitutional right can be waived, manifestly a legal right may also be waived. Since the trial court had jurisdiction over the defendant and the subject of the action, the application will be denied.

HORNBECK and WISEMAN, JJ, concur.

ON APPLICATION FOR REHEARING

No. 4470. Decided December 18, 1950.

By THE COURT.

Application for a rehearing is denied for the reasons set forth in our previous opinion.

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