author: Johnson, J.

text:
    Bahl v. Byal et al.

      Wills—Evidence—Opinion of witness not competent, when—Capacity of testator established, how^—Physician may testify as to condition of testator, when.

    1. It is not competent, in a proceeding to contest a will, for a witness to give an opinion as to whether the testator had capacity to make a’ will. -But the physical and/ mental' conditions from which it may be determined by the court and jury whether he had 'such capacity are. facts which may be shown by evidence of manifestations of such conditions.
    2. It is' competent for the physician of a testator to express an opinion as to the actual condition óf his patient’s mind, founded on his study and observation of the testator while in professional attendance on him at the time and prior to the date of the will, and whether he was capable of comprehending large and complicated business propositions or the distribution of a large estate.
    (No. 14249
    Decided March 17, 1914.)
    Error to the Court of Appeals of Hancock county.
    Clara E. Bahl filed her petition in the common pleas' court of Hancock county seeking to set aside the last will and testament and two codicils thereto of her father, Absolom P. Byal, deceased. All! heirs at law and all interested persons were made] parties defendant in the proceeding. Separate] answers were filed by George F. Byal, a son, by j Silas E. Hurin, guardian ad litem for three minor grandchildren and by the trustees of the First; Presbyterian church of Findlay. The court made up issues as to whether or not the paper writings purporting to be the last will and codicils of the deceased were his last will and codicils and entered them on the journal of the court.
    The case was first tried in November, 1911, to the court and jury, and a verdict was returned finding that the paper writings were not the last will and codicils of the decedent. This verdict was set aside on motion for a new trial. The case was again tried and again the jury returned a verdict setting aside these paper writings. The court overruled motions for a new trial and judgment was entered on the verdict. Thereupon the son, George F. Byal, and the guardian ad litem of the minors, prosecuted error to the circuit court. Its successor, the court of appeals, reversed the judgment below. The grounds of reversal are stated in the entry made by the court as follows:
    “First. Because the court erred in admitting the following questions propounded to the witness, Dr. J. A.. Kimmell, by counsel for the plantiff below and in permitting the witness to answer said questions:
    “ 'Dr. Kimmell.
    “ 'Q. Tell the jury in a general way and in your own way, what is the natural and universal condition, excepting certain degrees, of the mind of a man of eighty-five? A. Well the condition of a man’s mind of eighty-five is not considered capable of attending to business. No man over sixty is liable to get a job on a railroad or in a dry goods store because of the probable failure of his mind.- When he gets to be seventy, he is perhaps not able to run his own business. I don’t know of any man in the county today that is running a business at seventy-five. At eighty-five, no man would employ him or trust him with any business that he might see fit to give to a younger man. The governhient recognizes that by increasing the pension of old soldiers as they get older on account of their lessened ability to take care of themselves, or provide for themselves.
    “ ‘Q. And under your general statement there would be some degree of that, of men over eighty-five or more, would it or would it not, that one old mind of that kind might vary from another old mind with reference to the degree of comprehension? A. Yes, they would vary.
    “ ‘Q. What do you say as to the mind of Absolom P. Byal, after he had reached eighty-seven, as to whether or not his was such a mind as you have spoken of under your general description? A. I think that no man at eighty-seven years of age, has a mind to do business as I stated in the general statement a while ago. Nobody recognizes him as having a mind sufficient to transact business.
    “ ‘Q. When you say that such a man as Absolom P. Byal would be incapable of transacting business, I will ask whether or not you mean a rightful transaction of it? A. A legal transaction.
    “ ‘Q. Doctor, taking into consideration the diseased and enfeebled condition of A. P. Byal, both mentally and physically as you have described it, state whether or not in your opinion as a physician he was capable on. or about July 6th, 1908, of understanding and deciding large and complicated business propositions and whether or not he was then capable of comprehending the division and distribution of an estate valued at about $70,000 ? A. In my opinion he was not.
    “ ‘Q. Doctor, taking into consideration the diseased and enfeebled condition of A. P. Byal, both mentally and physically as you have described it, state whether or. not in your opinion as a physician, he was capable on or about August 13th, 1910, of understanding and deciding large and complicated business propositions and whether or not he was then capable of comprehending the division and distribution of an estate valued at about $70,000? A. In my opinion he was not.
    “ ‘Q. Doctor, taking into consideration the diseased and enfeebled condition of A. P. Byal, both mentally and physically as you have .described it, state whether or. not in your opinion as a physician, he was capable on or about July 9th, 1911, of understanding and deciding large and complicated business propositions and. whether or not he was then capable of comprehending the division and distribution of an estate valued at about $70,-000 ? A. In my opinion he was not.’
    “Second. Because the court- erred in its charge to the jury, in giving the following instructions, viz:
    “ ‘The attending physician is presumed to know the state of mind of his patient. The question of the weight of his testimony, however, is for you to determine from all the facts and surrounding circumstances. You may also take into consideration any and all declarations, statements and testimony given by said physician, either in connection with this, at the former trial of this case in this court, or on the admission of said will and codicils to probate and record in the probate court, and particularly the facts and circumstances testified to by him upon which he based his opinion as to the mental condition of the testator.’
    “The court finds no prejudicial error justifying the reversal of the judgment herein other than the errors above stated, they being the sole grounds upon, which the case is reversed.”
    The plaintiff in error prosecutes these proceedings to reverse the judgment of the court of appeals and affirm that of the common pleas.
    The First Presbyterian church seems to have taken no part in the proceedings after the verdict of the first jury. The other defendants have filed a cross-petition in error in this court, praying that they may have final judgment sustaining the will and each of the codicils thereto, or, if this cannot be done, that the will and first codicil be sustained, and if the first codicil cannot be sustained that the will be sustained.
    Further facts are stated in the opinion.

      Mr. George W. Ross and Mr. E. V. Bope, for plaintiff in error.

      Mr. Silas E. Hurin; Mr. J. H: Goeke; Mr. George F. Pendleton; Mr. John D. Snyder and Mr. Hiram Van Campen, for defendants in error.
   Johnson, J.

The ground upon which the court of appeals based its reversal of the judgment of the trial court, was that the portion of the testimony of the family physician, which is quoted in the entry of reversal, was admitted in violation of the rule declared in Runyan v. Price, 15 Ohio St., 1. In that case this court approved the refusal of the trial court to admit a question which the contestant put to an acquaintance of the testator, viz: “State what your opinon was, on the evening Bowen called upon you to witness the will, as to the sanity or insanity of William Runyan, or his capacity to make a will.” The court say: “This branch of the inquiry involved a question of law and fact, and, to the extent that capacity was involved in the issue, the very question to be determined by the jury. It, furthermore, assumed that the witness knew the degree of capacity which the law required for the performance of the act of executing a will.” The question rejected in that case called for the opinion of the witness on the ultimate question in issue between the parties. It assumed that the witness was capable of de- ' termining for himself what capacity was required for the execution of a valid will and that he was competent to give an opinion on that subject. The decided case referred to, as well as the uniform trend of authority elsewhere, has well established the rule that such a question is inadmissible.

The testimony to which objection is made in this case, however, has not the infirmities which rendered the question referred to in Runyan v. Price incompetent. The questions do not call for the opinion of Dr. Kimmell, as to the testator’s capacity to make a will or for the opinion of the witness as to what mental capacity is required by the law to enable one to make a valid will. The witness in answering the questions did not give any opinion touching the capacity of Mr. Byal to make a will, or as to what capacity was required for that purpose. Though some of his answers were rambling and not responsive.

Preceding the questions and answers refeired to, the physician had testified to his complete knowledge of, and acquaintance with, the physical and mental condition of Mr. Byal covering a period of about fifteen years prior to his death. This knowledge had been obtained by the study of those conditions while in the performance of his duties as the physician of testator during that period and through the close association and complete opportunity which follow that relationship. In that testimony the doctor had fully described the gradual, well-defined and constant decline in the mental and physical powers of the testator after the year 1900, due to the influences of extreme old age, fhe effects upon his nervous system of different attacks of sickness and of painful and exhausting operations on his eyes. The distinctions here pointed out between this case and Runyan v. Price are in harmony with the suggestions contained in the recent case of Dunlap, Exr., v. Dunlap et al., 89 Ohio St., 28, both of which cases we approve and follow.

It is not doubted that the opinions of physicians touching questions of mental strength or weakness are competent to be given in evidence in cases where those matters are in issue. The weight • to be given the evidence in a particular case is to be determined by the jury, as the testimony of witnesses touching any other matter should be determined. Where the physician has had the opportunity to observe mental conditions, by reason of having acted through a sufficient period of time as medical attendant, it is proper for him to express an opinion upon the actual condition of a patient’s mind at the times, or .during the period, in which he was so engaged. And where the grounds have been properly laid for a hypothetical question, a physician, who has properly qualified as an expert, may give his opinion as to the mental condition of the person referred to- in the question under the circumstances stated therein. These principles are well recognized. • Page on Wills, Section 389; Jones on Evidence (2 ed.), Section 373; In re Mullin’s Estate, 110 Cal., 252; In re Fenton’s Will, 97 Ia., 192; Davis v. United States, 165 U. S., 373; Hall v. Perry, 87 Me., 569; Kembsey v. McGinniss, 21 Mich., 123.

The last three of the questions which the court of appeals found to be improper, are the only ones which go directly to the mental capacity of the testator at the times he made the will and codicils. The preceding questions called for the opinion of the doctor as to the condition of persons generally who are of about the age and have been subjected to the conditions which he had already described as. to Mr. Byal. These opinions did not relate to the capacity of any man under such circumstances to transact any particular business, but were simply to the effect that a person under, such mental and physical conditions and suffering from the afflictions described was less able to properly comprehend and participate in the general business affairs of life. So far as these questions are concerned it is clear that a properly qualified physician would be able to more accurately analyze and define the mental condition of such a person than one not so qualified.

The last three questions differed from those that preceded them in that they inquired for the opinion of the doctor as to the capacity of the testator based upon the knowledge which the doctor himself had of his mental and physical condition, all of which he had fully detailed in the preceding parts of his evidence. He was asked to take into consideration the diseased and enfeebled condition of the testator, both mentally and physically, as he had already described it, and to give an opinion as to whether he was capable of understanding and deciding large and complicated business propositions and the division and distribution of an estate valued at about $70,000. It called for his opinion as an expert, based on facts within his own knowledge and as to which he had testified, concerning thé capacity of the testator to comprehend the matters referred to. This was an evidential fact, proper to be given to the jury as evidence, to be considered by them along with all the other evidence in the case in the determination of the ultimate question at issue.

A physician giving his opinion on the mental capacity of a testator, or other person, which is based on the actual knowledge which the physician has gained by personal contact with, and study of, such person as a patient occupies a different relation to the matter than a physician who has no such knowledge and who testifies in answer to hypothetical questions. A hypothetical question is wholly incompetent if it assumes elements which the testimony in the case does not tend to establish. Williams v. Brown, Exr., 28 Ohio St., 547.

An opinion based on such a question could be of no value for the purposes of the case. The only sound theory upon which the opinion of an expert is admitted at all is that he has the knowledge, training and experience with which to form a better opinion upon a certain state of facts than one not so well equipped. Necessarily, the opinion of a physician, which has been formed by the slow and sure processes of time and responsibility in connection with the performance of professional duty to a patient, is more valuable than that of one who has not such advantages and gives his opinion from a hypothetical question. The line between strength and weakness in the mind is so elusive that it may well be doubted whether a stranger can be brought by descriptions of the mental manifestations of a particular individual into a position to make his testimony concerning it of great value, except in well-defined cases. There is an increasing loss of confidence in that class of expert testimony. The doctor in this case had, by his testimony, shown himself qualified to testify as to the facts necessary to be ascertained for a proper determination of the issue made up in the case. The weight to be given it was a matter for the jury, in the light of all the other evidence, including the fact that he had acted as a witness to thesecond ■ codicil.

The court of appeals also found that the trial court erred in the portion of the charge, set out in its entry of reversal, which we have quoted above in the statement of the case. We think the reviewing court misapprehended the purpose and import of this portion of the charge. The physician was one of the witnesses to the second codicil of the testator, and, in the proceeding to probate the will and codicils in the probate court, had made and signed an affidavit as required by law. This affidavit was put in evidence by the defendants, and the doctor-was cross-examined concerning it for the purpose-of weakening his testimony with reference to the mental capacity of the testator. He gave as his explanation that he did not know whether he read it or whether it was read to him before signing it. In the portion of the charge referred to, the court instructed the jury that they might take into com sideration any and all declarations, statements and testimony given by the physician in connection with this, or the former trial of the case, or on the admission of the will and codicils to probate in 'the probate court, and particularly all facts and circumstances testified to by him upon which he based his opinion as to the mental condition of the testator. As preliminary to this the court instructed them that the attending physician is presumed to know the state of mind of his patient, that the question of the weight of his testimony, however, was for the jury to determine from all the facts and surrounding circumstances. Taken together these statements were proper precautions to be given to the jury. They impressed upon them that the testimony of the doctor was to be scrutinized the same as the testimony of every other witness, and that they could give such weight to it as they thought it was entitled to in the light of all of the circumstances.

The defendants in error insist also in their briefs and at the bar that the court of appeals should have rendered final judgment in their favor, sustaining the will, and that for error in not doing so this court should enter such judgment on their cross-petition in error. They urge that there was no evidence to sustain the verdict of the jury in setting aside the will. One of the grounds of the motion for a new trial in the trial court was that the verdict was against the manifest weight of the evidence, and another that it was not sustained by sufficient competent evidence. These grounds were alleged in the petition in error and considered by the court of appeals. That court expressly stated in its entry: “The court finds no prejudicial error justifying a reversal of the judgment herein other than the errors above stated, they being the sole grounds upon which the case is reversed.” It was the duty of the court of appeals, as well as of the trial court, to consider and weigh the evidence, and if it found that there was no competent evidence sustaining the verdict, or that it was against the manifest weight of the evidence, to reverse the judgment. By its entry it has in effect declared that after the performance of this duty it not only finds com* petent evidence to support the verdict, but that they do not find that it is against the manifest weight of the evidence.

In the disposition of cases before this court it does not' weigh evidence, but it will examine the record to ascertain whether there is any evidence to support the contention of the prevailing party in the court below, and also whether the trial court should have directed a verdict on the undisputed evidence. We have examined the record in this case to determine whether there was evidence oñ behalf of the contestants, which, if not overcome by stronger proof to the contrary, would require that the will and codicils be set aside. This is purely a question of law. On this matter we agree with both of the lower courts.

It would be impracticable and wholly unnecessary to here review the great amount of testimony offered on the trial.

From the testimony of Dr. Kimmell, already referred to in this opinion, sufficient is shown, if uncontroverted, to establish such mental weakness in the testator at the time of the making of the will and codicils as to incapacitate him in that behalf. Our decision as to the admissibility of the testimony of Dr. Kimmell would of necessity compel the conclusion that there was evidence to sustain the verdict of the jury in this case, if not overcome by stronger proof to the contrary.

This testimony, and the testimony of other witnesses (interested, it is true, but still witnesses, whose testimony was entitled to be considered by the jury, under proper instructions from the court), tended to prove that from the year 1900 until his death Mr. Byal was seriously afflicted; that he had been compelled to submit to an operation on his eye in 1904, which very seriously affected his nervous system, and that thereafter his physical and mental powers gradually declined and grew weaker under the effects of a general breakdown until his death; that this condition had proceeded to such a state that, at the times of the making of this will and codicils, he had not sufficient mental capacity to comprehend the transaction; that from some cause he had in that period taken a dislike to several of his children and had become wrongfully impressed with the idea that their mental powers were affected. Testimony was offered tending to show that this was produced by designs of the wife of the son George. There was considerable feeling and contention between the children, and it is conceded by the defendants in error in their brief that this situation greatly distressed the father, and that the quarrel which the defendants in error believed was started by the plaintiff in error with the wife of the son, George, “caused the old gentleman, the father, many sleepless nights and somewhat braced him up against them in the further disposition of his estate.”

The defendants in error produced much testimony in support of their view as to the full capacity of the testator and the other issues in the case. The jury decided the issues against them. What we have briefly stated with reference to the matter is simply to show that there was testimony, produced by the contestants, of a very substantial character in support of the claim they made against the validity of the will.

At the request of the defendants in error the court gave to the jury a number of special charges in which they were instructed with great detail as to the nature and degree of proof, both on the issue of capacity and undue influence, which the contestants were required to produce before the jury would be authorized to set aside the will and codicils, and that although the jury might find that the testator made an unequal distribution of his property by his will and cut off one or more with nothing, or but little, who seemed to have as strong a claim on his generosity as others who fared better, such facts are of themselves not evidence of undue influence and raise no presumption of the invalidity of the will. In the charge itself all of these requirements were very fully restated and every right of the defendants preserved.

A number of other assignments of error are made by the defendants in error which they urge in support of the judgment of reversal entered by the court of appeals. We have carefully gone over and considered them and find no prejudicial error manifest on the record.

For the reasons above given the judgment of the court of appeals will be reversed and that o.f the court of common ■■ pleas affirmed.

Judgment of the court of appeals reversed and that of the common pleas affirmed.

Si-iauck, Donahue, Wanamaker and Wilkin, JJ., concur.

Nichols, C. J., and Newman, J., dissent.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    Louden v. The City of Cincinnati et al.

      Damages—Injuries to property—User of high-power explosives liable, when—Petition for damages caused by blasting—States • cause of- action, when.

    1. The use of high-power explosives in making .excavations of rock and earth is a lawful method of accomplishing that purpose, but where dirt and stone are thrown by the force of the blast upon the property of another, or where the work of blasting is done in such proximity to adjoining property that regardless of the care used the natural, necessary or.probable result of the force of the explosion will be to break the surface of the ground, destroy the buildings, and produce a concussion of the atmosphere, the force of which will'invade the adjoining premises, injuring the buildings thereon and making them ..unfit and .unsafe for habitation, the person or corporation making use of such explosives will be liable for the damage proximately and naturally resulting therefrom, irrespective of the question of negligence or want of skill in.the blasting operations.
    2. A petition averring that defendants in the use of high explosives broke into plaintiff’s land and dwelling house with force and violence by means of explosions of great power and frequency in the street adjacent to and in close proximity to plaintiff’s dwelling. house, and thereby produced concussions and vibrations of the earth and air, causing foundations, walls, chimneys, ceiling, cistern and vault and window glass of plaintiff’s house to break and fall, rendering such house unsafe for habitation and untenantable, states a cause of action.
    (No. 13944
    Decided March 17, 1914.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff filed an amended petition in the common pleas court of Hamilton county which amended petition reads as follows:
    “Now comes Nancy Louden the plaintiff herein and by leave of court files this her amended petition herein, and says that the defendant, the City of Cincinnati, is a municipal corporation under the laws of the State of Ohio; that the defendant, the Board of Trustees, ‘Commissioners of Water Works/ Cincinnati, Ohio, is a legally constituted board appointed and qualified under and in pursuance of the laws of the State of Ohio, for the construction, . enlargement, extension and improvement and addition to the' Water Works of the City of Cincinnati; that the defendant The W. J. Gawne Company is a corporation under the laws of the State of Delaware.
    “And plaintiff says that during all the times hereinafter mentioned this plaintiff was and has been ever since and still is the owner in fee simple and in possession of Lot No. — in S. W. Harts-horn’s Subdivision, with a dwelling house thereon .known and numbered as No. 3521 Humbert Avenue in the City of Cincinnati.

      “That at the time of the doing of the wrongs hereinafter stated said dwelling house was a frame and plastered building with stone and brick foundation and stone and brick chimneys, all occupied by plaintiff as her home, and dwelling house.
    “That said defendant The City of Cincinnati, through its said Board of Trustees, ‘Commissioners of Water Works,’ Cincinnati, Ohio, defendant contracted with and employed the defendant The W. J. Gawne Company to excavate and to construct for said city a tunnel for supplying water to said city.
    “That said defendants made the excavation for and construction of said tunnel along, through and under the ground adjacent to the said dwelling house of the plaintiff.
    “That in the process of so doing, said defendants loosened and removed the earth and rock by means of blasts of high power explosives.
    “And that in so doing, the said defendants trespassed upon and under and broke into the plaintiff’s said land and dwelling house with force and violence by means of said explosions of great power and frequency, and in close proximity to plaintiff’s said dwelling house.
    “And that the defendants thereby produced concussions and vibrations of the earth and air and of the material of this plaintiff’s said dwelling house.
    “And the defendants thereby caused the foundations, walls, chimneys, ceilings, cistern, vault and window glass of plaintiff’s said house to crack and break and fall and rendered said house unsafe for habitation and untenantable, and deprived plaintiff of the use of said house.
    “And that said defendants by said explosions continued through day and night caused terrifying and disturbing noises and vibrations of the ground and air and dwelling house of this plaintiff, and deprived plaintiff and her. family of sleep and rest and of the enjoyment of her home and property, and thereby caused her great inconvenience, dis-' comfort, suffering, injury, damage and loss.
    “That the excavation for and construction of said tunnel was entirely within and under the management and control of the defendants, and said plaintiff had nothing to do with it except , to endure the injuries, suffering, losses and damages herein complained of.
    “That by reason of the above described acts of the defendants, the plaintiff has been damaged by the said defendants in the sum of One Thousand Dollars ($1000).
    “Wherefore the plaintiff asks judgment against said defendants and each of them for One Thous- and Dollars.
    “And plaintiff further prays for an order directed to the defendants, The City of Cincinnati and the Board of Trustees, ‘Commissioners of Water Works,’ Cincinnati, Ohio, and each of them, from paying over any money now in their hands to the said defendant, The W. J. Gawne Company, until after the claim of this plaintiff has been fully paid and satisfied. And plaintiff further prays for her costs and for all other and further relief to which she is entitled.”

      To this amended petition the defendants filed the following demurrer:
    “Comes now the defendants herein and jointly and severally demur to plaintiff’s amended petition for the reason that same does not state facts sufficient to constitute a cause of action.”
    The common pleas court sustained the demurrer to this amended petition, and dismissed the action at plaintiff’s costs. The circuit court affirmed the judgment of the common pleas court.

      Mr. Patterson A. Reece, for plaintiff in error.

      Mr. Stanley W. Merrill; Mr. Joseph W. Heintzman and Mr. Jonas B. Frenkel, for defendants in error.
   Donahue, J.

The question in this case is raised by the demurrer to the amended petition, and it is one that materially affects property rights in this state. Plaintiff in her amended petition avers that' the defendants in the process of constructing a tunnel through and under Humbert Avenue, for supplying water to the city of Cincinnati, loosened and removed earth and. rock by means of high-power explosives; that plaintiff was the owner of a frame dwelling house, with stone and brick foundation and stone and brick chimneys, occupied, by her and her family as a home; that this tunnel, was being constructed through and under the street adjacent to this dwelling house; that defendants trespassed upon and under and broke into plaintiff’s land and dwelling house with force and violence by means of explosions of great power and frequency and in close proximity to plaintiff’s dwelling house, and thereby produced concussions and vibrations of the earth and air, destroying the cistern on her lot, the foundation of her building, breaking the glass in the windows, cracking and destroying the chimneys, and thereby rendered her house unsafe and unfit for habitation and depriving plaintiff of its use, enjoyment and occupation.

A demurrer to this amended petition was sustained by the trial court for the reason that it contained no averments of negligence or want of skill in the handling of these explosives. The amended petition charges a trespass upon plaintiff’s land by the transmission of force through the soil and subsurface and concussion of air produced by the explosion of blasts used in loosening rock and earth in the construction of the tunnel in the street in front of plaintiff’s premises.

The question presented is whether the owner of property may make use of high explosives on his own premises in the accomplishment of a lawful purpose, provided he uses due care, notwithstanding the necessary, natural or probable result thereof is to injure or destroy adjacent property. The supreme court of California, in the ease of Colton v. Onderdonk, 69 Cal., 155, has spoken in no uncertain terms upon this question. In the fourth proposition of the syllabus it is held that “Where the owner of a lot situated in a large city, and contiguous to the dwelling house of another, uses gunpowder to blast out rocks on his lot, he is liable for the damages proximately and naturally resulting to the house of the adjoining owner from the act of blasting, whether the damage was caused by rocks thrown against the house or by a concussion of the air around it.” The court, on page 159, uses this language: “The defendant seems by his contention to claim that he had a right to blast rocks with gunpowder on his own lot in San Francisco, even if he had shaken Mrs. Colton’s house'to ruins, provided he used care and skill in so doing, and although he ought to have known that by such act, which was intrinsically dangerous, the damage would be a necessary, probable, or natural consequence. But in this he is mistaken.”

In the case of Cahill v. Eastman, 18 Minn., 324, it was held: “Where it is sought to make one accountable for the consequences of acts done by him upon his own land, the question, in general, is not whether he exercised due care, but whether his acts caused the damage. If they necessarily tend to injure his neighbor in his pre-existing rights of property, he is liable in damages for the natural and necessary consequences thereof, irrespective of any consideration as to the care and skill with which such operations may have been conducted.” To the same effect is the case of Shipley v. Fifty Associates, 106 Mass., 194; Ball v. Nye, 99 Mass. 582; Wilson v. City of New Bedford, 108 Mass., 261; City of Joliet v. Harwood, 86 Ill., 110.

The New York court of appeals held, in the case of Hay v. Cohoes Co., 2 N. Y., 159, that defendant was liable for- injury caused from blasting on its own premises, although no negligence or want of skill in executing the work was alleged or proven. The same principle in relation to the storing of water is announced in the case of Pixley v. Clark, 35 N. Y., 520. Also in reference to the storage of gunpowder and other explosive materials, in the case of Heeg v. Licht, 80 N. Y., 579. In the case of McKeon v. See, 51 N. Y., 300, an injunction was granted against defendant from operation of machinery by steam power which produced jarring and shaking of plaintiff’s building. In the case of Sutton v. Clarke, decided in England in 1815, 6 Taunton, 29, it was stated in the opinion by Sir Vicary Gibbs, C. J., that where a person improves his own land for his own benefit, according to his best skill and diligence and not foreseeing that his act will produce injury, yet if he unwittingly injures his neighor he is answerable. This was the settled law of England at tha.t time, and many authorities are cited by the court. That doctrine has been modified, at least in this country, to the extent that where the injury was not the natural, necessary or probable consequence of the act of plaintiff, and could not have been foreseen, no recovery can be had unless there be an actual or constructive trespass of negligence in doing the work. In the case of Booth v. The Rome, W. & O. T. Rd. Co., 140 N. Y., 267, the court of appeals seems to have departed from the doctrine announced in the case of Hay v. Cohoes Co., supra. However, the court distinguishes these cases. In the latter the court held that defendant was not liable for the injury caused by blasting notwithstanding that during the progress of the work it was informed of the injury that was being done. This decision was largely predicated upon the particular facts m that case. The rocky surface of the upper part of Manhattan Island made blasting necessary in the work of excavating, and unless permitted the value of the lots, especially for business purposes, would be seriously affected. However, the fair and legitimate interpretation and application of the doctrine announced in that case, as elaborated and explained in the opinion at page 278, would permit the second proprietor to destroy the building of the first, and the third to destroy the building of the second, and in like manner each succeeding proprietor might destroy the building of his predecessor until the territory was exhausted, and then there would remain upon this territory but one building, the last one, fit and safe for use and occupancy, unless the several owners followed in the trail of devastation and repaired or restored their buildings. There are, of course, two very important considerations to be kept in mind in the disposition of a question of this character. First, to give to the owner the largest liberty possible, in the use, occupation and improvement of his own property, consistent with the rights of others, and the right to employ modern methods and machinery in accomplishing the improvements desired. Second, that one may not use his own property to the injury of any legal right of another. This maxim of the common law, Sic utere tuo ut alienum non laedas, is so well established and so universally recognized that it needs neither argument nor citation of authority in its support. But it must be conceded that this is no longer the law if the owner of a lot may employ such means in the improvement of his property as will naturally and necessarily result in the destruction of adjoining property. Particularly would this be true if, as in the case of Booth v. The Rome, W. & O. T. Rd. Co., supra, he is informed that the means and methods that he is employing are in fact destroying his neighbor’s property, and notwithstanding that knowledge he may continue in the use of these methods and these means without liability therefor, unless perchance he is guilty of negligence or want of skill in the handling of the explosives used. If the means employed will, in the very nature of things, injure and destroy his neighbor’s property, notwithstanding the highest possible care is used in the handling of the destructive agency, the result to the adjoining property is just as disastrous as if negligence had intervened. If one may knowingly destroy his neighbor’s property in the improvement of his own, it is little consolation to the neighbor to know that his property was destroyed with due care and in a scientific manner. If the consequences of the act could not be foreseen, if the means employed by a person in the improvement of his own property would not naturally, necessarily or probably cause the destruction of adjoining property, then the question of negligence in doing the work would become important, but when he makes use of such means as will naturally, necessarily or probably result in the destruction of property, a different rule must obtain, otherwise the maxim of the law above stated, so well established and so universally recognized, must be abandoned forever.

The doctrine announced in the case of Booth v. Rome, W. & O. T. Rd. Co., supra, was reaffirmed by the court of appeals in the case of Benner v. Atlantic Dredging Co., 134 N. Y., 156, and Holland House Co. v. Baird, 169 N. Y., 136. In the later case the court stated in its opinion that this is the settled law of that state. The great weight of authorities, however, would seem to indicate that other states have not adopted this rule. Thompson in his Commentaries on the Law of Negligence, Vol. 1, Section 765, says: “It is obvious, upon a moment’s reflection, that the work of blasting rocks, being absolutely necessary in excavating through beds of rock, in mining, in digging wells, in excavating foundations for buildings, in improving' roads and streets, in digging canals, and in building railways,—cannot under all circumstances be regarded as a nuisance per se and condemned as being negligent as a matter of law. On the other hand, it must be regarded—and the decisions so regard it—as a work which one proprietor may lawfully do upon his own land, provided he takes due care to avoid injuring persons and property in the vicinity, and subject to his obligation to pay damages for any injury which he does in case his blasting involves a direct invasion of the premises of an adjacent proprietor.” In Section 764, the rule is stated that a recovery may be had for damages to adjoining property from blasting: 1. Where dirt and stones are thrown by the blast upon the adjoining property, irrespective of the question of negligence. 2. Where the work of blasting is done in a situation where it is necessarily dangerous to persons or property, whether the injury proceeds from the impact of rocks thrown or from atmospheric concussion, irrespective of the care or skill used. 3. In all other cases liability will attach to the person or corporation carrying on the dangerous employment where the work has been negligently done.

This would seem to be the rule in Ohio. This court affirmed without opinion the case of Columbus v. Williard, reported in 7 Circuit Court Reports, page 113, in which it was held that “A municipal corporation which proceeds with skill and care, and without malice, to drain a street for a lawful purpose, is liable to the owner of an abutting lot for such injury as may result to his soil from the withdrawal of its natural support, even though the support withdrawn consists of percolating waters and sand of such nature and so blended with the waters as to be inseparable from them.” In this case it is not necessary to extend the rule of liability that far. In that case it does not appear from the report that the damage caused was the necessary, natural or probable consequence of the act of the defendant. Not only that, but it involved the question of percolating waters.

We think the correct rule is stated in the case of City of Tiffin v. McCormack, 34 Ohio St., 638, in which it was held that: “Where the owner of a stone quarry, by blasting with gunpowder, destroys the building of an adjoining land owner, it is no defense to show that ordinary care was exercised in the manner in which the quarry was worked.” Judge Mcllvaine in that case said: “Neither can one in possession of a parcel of land operate and manage a mine or quarry upon it in such manner as to injure or destroy the property of an adjoining proprietor, justify himself by showing that he used ordinary care in the use of his own property.” In the case of Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 60 Ohio St., 560, it was held by this court that: “Nitroglycerine is a substance usually recognized as highly explosive and dangerous, the storage of which at any place is a constant menace to the property in that vicinity. And one who stores it on his own premises is liable for injuries caused to surrounding property by its exploding, although he neither violates any provision of the law regulating its storage nor is chargeable with negligence contributing to the explosion.”

It is insisted by counsel for defendant in error that this case does not apply to the case under consideration, but when that case was before this court it was then contended that the authorities in reference to the use of explosives did not apply to that case because in one instance the party to be charged was actively engaged in the work that caused the injury, and purposely and intentionally caused the explosion, while in the other case he was merely using the premises to store the dangerous substance, not intending that it should explode; but this court held that both cases involved the same principle and in the discussion of that question said: “The blasting doubtless is a menace to adjacent property, but so is the storing of a highly explosive substance.” In the cases of Defiance Water Co. v. Olinger, 54 Ohio St., 532, and Gas Fuel Co. v. Andrews, 50 Ohio St., 695, this question is further considered and discussed.

We are informed by counsel that the case of Armstrong v. City of Cincinnati, 12 C. C., N. S., 76, affirmed by this court, 82 Ohio St., 454, involved facts similar to the facts averred in the amended petition in the case now under consideration. In that cáse the trial court charged the jury that if the defendants exercised the highest degree of care in the use of explosives, they would not be liable for the damages resulting therefrom. The jury found for the defendant. The plaintiff prosecuted error to reverse this judgment upon two grounds: First, that the verdict was not sustained by sufficient evidence, and, second, for error in the charge of the trial court. The circuit court affirmed the judgment of the common pleas court, and among other things held there was no error in the charge of the court, citing in support of its conclusion the New York cases to which we have referred. The circuit court further found from an examination of the record that: “The jury might well find that the injury, if any, to plaintiff’s property was not caused by the work of defendants.” The fact that that case involved the weight of the evidence may have been the reason for its affirmance by this court. The law of this state in reference to this subject having been declared in the cases of City of Tiffin v. McCormack and Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., supra, it would follow that if this court intended to depart from the doctrine announced in these cases it would have reported the case and overruled these authorities.

It is insisted by counsel for defendants in error that because no rock, soil or debris was actually thrown upon plaintiff’s premises there was no actual trespass, but neither was there such a trespass in the case of Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., supra. We are unable to distinguish between a case where a fragment of rock or a portion of the soil is thrown onto an adjoining property and a case where the force of an explosion is transmitted through the soil and substratum, jarring, cracking and breaking it, destroying the cistern and foundation of the building and wrecking the building itself by a concussion of the air around it, thereby doing far more injury than a fragment of rock could do. It is a distinction without a difference. If this terrific force may be set in motion by the owner of one parcel of ground, with full knowledge upon his part that such force will invade, damage and destroy the property of the adjoining proprietor, what difference does it make how this force accomplishes the result that, in the very nature of things, must have been anticipated? Is not a concussion of the air and jarring, breaking and cracking the ground with such force as to wreck the buildings thereon as much an invasion of the rights of the owner as the hurling of a missile thereon? If there is any difference whatever, it is purely technical, and ought to find • no favor with the courts. Certainly the application of a force sufficient to crack the surface of the land to such a depth as to destroy the foundations of buildings, to break windows, and throw down chimneys, is a direct invasion of property rights.

The amended petition does not aver in terms that the injury to plaintiff’s property was the natural, or necessary, or probaole, result of defendants’ acts, but it does aver a trespass, and it also avers that these explosives were exploded in such close proximity to plaintiff’s premises and that they were of such great power and frequency, day and night, that they did result in the destruction of plaintiff’s property. It was not one single explosion, the result of which defendants might not have forseen, but it was a continuous bombardment, which finally resulted in the injury complained of. It is not necessary that a pleader should draw a conclusion from the facts pleaded. It is sufficient if the allegation of the petition states the facts upon which plaintiff relies for recovery, and if the plaintiff is able to maintain by proofs the allegations of her amended petition, she is entitled to recover for the damages resulting from the invasion of her rights and the destruction of her property.

The judgment of the circuit court affirming the judgment of the common pleas court and the judgment of the common pleas court sustaining the demurrer to the petition, are reversed, and the cause remanded to the common pleas court with directions to overrule the demurrer to the petition, and for further proceedings according to law.

Judgment reversed.

Nichols, C. J., Johnson, Wanamaker, New■man and Wilkin, JJ., concur.


author: Nichols, C. J.

text:
    Creamer, Executor, v. Harris.

      Wills—Interpretation—General description covers things ejusdem generis, when—Rule of presumption yields to testator’s intention, when.

    1. In the construction of wills a presumption prevails, especially in items not residuary, that where a more general description is coupled with an enumeration of things, the description shall cover only things ejusdem generis.

      2. ' This, however, is only a rule of presumption and must yield to the testator’s intent as gathered from the whole instrument, but where the presumption is favored and supported by the evident intention of the testator as developed from a consideration of all the parts of the instrument, then such rule of presumption should be applied to the matter in question. ., ,
    (No. 13651
    Decided March 17, 1914.)
    Error to the Circuit Court of Fayette county.
    The controversy in this action centers ! ¿round the clause, “one bureau and contents,” mentioned in the second item' of the last will and testament of Emma Weaver, late a resident of Fayette county, Ohio, and demands an interpretation thereof in order that the true intention of the testatrix may be ascertained.
    The will in its entirety reads thus:
    'T, Emma Weaver of the county of Fayette and State of Ohio do make and publish this my last will and testament.
    “Item 1. It is my will that all my just debts be first paid.
    ” “Item 2. I give to my husband Silas Weaver the sum of $10 in money and he is to have the right to occupy the house in which we now live for 6 months after my death. The above I give to him in lieu of all claims against my estate as widower and given also on the condition that he survives me.
    “Item 3. I give and bequeath to Sadie Harris widow of John Harris all my carpets, window blinds and curtains, 1 clock, 1 stand, 1 bureau and contents, 6 kitchen chairs, l1 small rocking chair, 1 safe, ’all my dishes, all crocks, jars, washtub and board, all baskets, 1 green-colored trunk and contents; and also all kitchen furniture of every character and description, which she shall have absolutely subject to the rights of my husband.
    “Item 4. I give and bequeath to William R. Harris my Bible, large looking glass, 1 rocking chair and 6 cane-bottom chairs, stepladder and all spades, shovels, hoes, etc.
    “Item 5. I give and bequeath to Frances Weaver 1 small black trunk and contents therein, except deeds and my private papers.
    “Item 6. I give and bequeath to Nora Anderson 1 bedstead and bedding complete including pillows.
    “Item 7. I give and bequeath to Sadie Harris widow of John Harris, Mattie Harris and Frances Weaver equally to be divided between them all my clothing also all other chattel property not heretofore disposed of—as I do not want sale of my chattel effects.
    “Item 8. It is my will and I order and direct that my executor 'sell all my real estate at public or private sale on such terms as he deems best, and to make and deliver deeds to purchasers as fully and completely as I might do if living and that he convert all other personal property not above disposed of in kind into money.
    “Item 9. I give and bequeath to Nellie Jones, Julia Bibba and William Shafers of Oxford, Gran-ville Co., N. C, share and share alike in money all the residue of my estate after the foregoing provisions of my will have been complied with.
    “It is my desire and I direct that my executor shall see to it that I be given a nice funeral; but not to cost over $300. I nominate A. R. [Creamer] executor of this my last will and testament.”
    This will was executed six years before the death of the testatrix, who was an aged colored woman, she having reached the advanced years of eighty-seven at the time of her death.
    The contents of the bureau were made up substantially of female wearing apparel, and in addition the sum of $320, found in one of the drawers of the bureau.
    The testatrix at the time of the execution of the will was a married woman, but childless; her husband, however, did not survive her. She had no blood relatives in Ohio, the only known next of kin being those mentioned in item 9 of the will, the residuary clause.
    Both the common pleas and circuit courts held the description in question sufficiently definite to pass title to the defendant in error, Sarah E. Har-' ris, as to both the wearing apparel and the money.

      Messrs. Creamer, Creamer & Thompson, for plaintiff in error.

      Messrs. Rankin & Rankin, for defendant in error.
   Nichols, C. J.

The testimony in the case shows that the testatrix died seized of real estate of the approximate value of $4,000, and chattel property, exclusive of the money in dispute, of a value less than $50.

The executor maintains that, viewing the will as a whole, it cannot be said that the testatrix intended to bequeath the $320 found in the bureau to the defendant in error, while the legatee mentioned in item 2 just as strongly contends that the plain and unambiguous meaning of the term “contents” is of such a character as to carry all the bureau might contain, whether it be wearing apparel, notes, credits, moneys, or what not.

No direct authority can be found in Ohio which will aid the court in its interpretation of the dispute which construe substantially similar expressions, in question, although in other jurisdictions, both in England and the United States, cases are not few In volume 51 of the Connecticut Reports, at page 569, in 'the case of Webster v. Wiers, the courc holds: “A testatrix made the following bequest:— “I give to M. all my household' effects, books and' papers of value, and everything the house contains/' * * * Held: Not to include a promissory note of $100, and a savings bank book with deposits of $2,500 represented by ft, which belonged to the testatrix and were found among her papers in her dwelling house immediately after her death.”

Park, C. J., in his opinion in this case, at page 575 says: “It seems clear to us that the articles intended were clearly household effects, such articles as were kept for household and family use. It is true that she uses, at the close of the bequest, the sweeping expression, ‘and everything the house contains.’ * * * It would be a very unnatural thing that a ’ testator should describe such property, and of such value, merely as household effects and as a part of all the house contained. * * * It is hardly credible that a particular allusion to them should not have been made if she had intended to embrace them in the bequest.”

In the case of Gibbs v. Lawrence, 7 Jur., N. S., 137, Vice Chancellor Woods, a jurist of great learning and high repute, held that a bequest of' “all and singular my household furniture, plate, linen, china, pictures, and other the goods, chattels, and effects which shall be in, upon or about my dwelling-house and premises at the time of my decease,” would not include a sum of money .(in that case 400 pounds) found in the house.

Consulting some of the leading text-writers on will construction, we find it to be an established course of interpretation that it is a rule of presumption, especially in clauses not residuary, that where a more general description is coupled with an enumeration of things, the description shall cover only things of the same kind; and doubtless words of a general description may, by due regard to the context, be considered as limited by an attempt at particular description.

But let us disregard for the moment all case law on the subject, and also the general rules of construction excepting the most important rule, “that all the words of the will are to be taken into view and not a part of them only; as every word is employed to develop the intention of the testator and all of them taken in connection exhibit a transcript of his mind,” and so invoking this cardinal rule, we are irresistibly forced to the conclusion that this aged colored woman did not have the remotest idea of bequeathing to Sadie Harris the money found in the bureau.

A reading of the instrument, a consideration of the circumstances surrounding the testatrix at the time of the execution of the instrument, together with the exercise of a knowledge of human nature, forbid the conclusion that the testatrix wished, to bequeath this money in this manner.

The very great detail to which the testatrix resorts in the matter of enumeration of the various articles she specifically bequeaths demonstrates that she in common with the older people of her race and condition held little things, even old trumpery, in high esteem.

Is it not unreasonable to believe that she would bequeath and specifically mention “window blinds, washtub and board, baskets, crocks and jars,” and leave unmentioned, except under the general head of “the contents of a bureau,” the sum of $320 in money, which exceeded by nearly sevenfold the total value of all her other chattels ? And is it not equally incredible that she would employ five of the nine items of her will to dispose of her chattels, of a less value than $50, and not regard the bequest of $320 in money of sufficient moment to justify a line at least for its disposal ?

The will speaks eloquently in its wealth of detail in proof of the fact that the aged woman felt that die littlest article which she owned was of sufficient mportance to have a place in her will.

Under all these circumstances we feel that it would be doing violence to the intention of the tesatrix to pass title to this money under the poor and meager description of “the contents of a bureau,” and it must be held as passing to the next of. kin, the residuary legatees mentioned in item 9 of the will.

Judgment reversed.

Shauck, Johnson, Newman and Wilkin, JJ., concur.


author: By the Court.

text:
    The State of Ohio v. Rohrer.

      Courts—Criminal law—Term of court—Continuation into another judicial year.

    There is neither constitutional nor statutory prohibition on the power of the court to continue the term into another judicial year, if the public business so demand, so long as the time to which it continues does not interfere with the order of the judges, made in their annual October session, fixing the terms and the time at which such terms shall begin.
    (No. 14519
    Decided March 17, 1914.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Montgomery county.
    The grand jury in and for the county of Montgomery, state of Ohio, was duly impaneled and sworn on the 1st day of December, 1913, for the October term, 1913. On the following 8th day of December, 1913, said grand jury filed its first and partial report with said court. On the following 31st day of December, the said grand jury renewed its sessions. On the following 3d day of January, 1914, the said grand jury filed its second and final report with said court, and among the indictments returned in such final report was one against David Rohrer, charging the said Rohrer with obtaining money or property by false pretenses.
    The journal discloses that on January 8, 1914, the defendant, Rohrer, entered a plea of not guilty, and that on February 13, 1914, the defendant, by leave of the court, withdrew his former plea of not guilty and entered a plea in abatement. The plea in abatement does not challenge the legal sufficiency of the allegations contained therein, but is based upon the claim that the body purporting to be a grand jury of the court of common pleas of Montgomery county of the October term, 1913, had been dissolved by order of court and by operation of law. ■ The “order of court” relied on for the dissolution and discharge of the jury was the following journal entry:
    “It is hereby ordered that all cases not otherwise ' ■disposed of be and the same are continued to the next term of this court.
    “Thereupon the October term, A. D. 1913, adjourned sine die this 31st day of December, 1913.
    “Hon. Carroll Sprigg,
    “Hon. E. T. Snediker,
    “Hon. U. S. Martin,
    “Judges.”
    The operation of the law “relied on” is Sections 1533 and 11432, General Code of Ohio.
    ■In brief, the contention of the defendant is that the journal of the court shows a final adjournment of the October term on the 31st day of December,' and second, that the judicial year ended on the 31st day of December, and therefore the grand jury were powerless to act as a grand jury or to find or present any indictments whatsoever after such 31st day of December.
    Three days prior to the filing of the plea in abatement, to-wit, February 10, 1914, the following journal entry appears on the records of said common pleas court:

      “It being made to appear to the court that through an error the entry of adjournment of the October term, 1913, signed by the judges- of this court, was so drawn as to imply that, said adjournment took effect, upon the 31st day of December, 1913, when in truth and in fact said adjournment. sine die was not had, nor said entry ordering the same prepared and approved, until the third day of January, 1914, upon which date said term did in. fact end. It is therefore ordered that said former entry of adjournment be corrected to conform to the facts, and speak the truth in such a manner as to set forth on the minutes of this court the sine die adjournment of the October term, A. D. 1913, as, having.taken place upon said 3rd day of January,. 1914, upon which date said term did end; and for that purpose this entry be made nunc pro ttmc.”

    It is admitted by counsel in argument that the court of common pleas’ sessions in the interim between December 31, 1913, and January 3, 1914, ¡ continued to transact the regular and usual order of court business.
    To the plea in abatement the state demurred. On hearing had the demurrer was overruled. Not- desiring to plead further, the plea in abatement was*, sustained, the state took its exceptions and brings its bill into this court for the purpose of having this: court determine the law agreeably to the statutes. .

      Mr. Robert C. Patterson, prosecuting attorney, for the exceptions.

      Mr. R. Earl Van Derveer and Mr. Harry N. Routzohn, against the exceptions. •
   By the Court.

We hold that the journal entry of February 10, 1914, set aside and vacated the journal entry of December 31, 1913; that our constitution provides that all courts shall be open— that is, as public business may demand; that a great many of the counties of this state have commendably followed the plan of having one term of court-open until the succeeding term begins, to the great advantage of counsel and the public; that this common custom has existed so long and is so general as to be tantamount to the unwritten common law.

We. find neither constitutional nor statutory provision prohibiting the continuation of this custom. If it were otherwise, the common pleas courts of many counties of the state would be practically disabled as to the transaction of public business for several months at the beginning of the judicial year.

This court believes that the policy, generally adopted by the courts of common pleas in this state, of continuous open sessions until the next succeeding term formally opens should be continued and commended.

We further find that the grand jury was not dissolved and discharged on the 31st day of December, and that indictments found and presented to the court, as shown by its final report, were regularly and legally found and presented by a lawful grand mry. The plea in abatement was not well taken and the demurrer thereto should have been sustained.

Exceptions sustained.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ.,, concur.


text:
    The Star Hardware & Supply Co. v. The Toledo Steel Castings Co. et al.

      Corporations—Insolvency—Directors hold property in trust—Cannot assign property to secured creditors—Rights of unsecured creditors.

    (No. 13697
    Decided March 31, 1914.)
    Error to the Circuit Court of Lucas county.

      Mr. Orville S. Brumback, for plaintiff in error.

      Mr. Ben W. Johnson, for defendant in error.
   By the Court.

The directors of an insolvent corporation hold its property in trust for the bendit of all its creditors, and have no authority to transfer, sell and assign all of the property of the insolvent corporation to its secured creditors in satisfaction of their claims and liens, regardless of the -ights of unsecured creditors, but must proceed to wind up the affairs of such- corporation and apply all of its property and assets to the payment of its debts in the order of their priority according to law.

Judgment reversed.

Nichols, C. J., Shaucic, Tohnson, Donahue, Wanamaker and Wilicin, JJ., concur.


text:
    Bower v. Bower.

      Divorce and alimony—Custody of child—Appeal will lie, when— Section 8032, General Code.

    An appeal will lie from a judgment or order of a court for the care, custody and maintenance of minor children regardless of whether such order is made in an action for divorce, divorce and alimony or alimony only, or in proceedings under the provisions of Section 8032, General Code. (Second paragraph of the syllabus in the case of Rogers v. Rogers, 51 Ohio St., 1, overruled.)
    (No. 13704
    Decided April 1, 1914.)
    Error to the Circuit court of Franklin county.

      Mr. James C. Nicholson and Mr. George S. Marshall, for plaintiff in error.

      Messrs. Vorys, Safer, Seymour & Pease, for defendant in error.
   By the Court.

The authority of a "court to make an order for the disposition, care, custody, control and maintenance of minor children when husband and wife are divorced or living separate and apart from each other, is conferred.by Sections 8032,- 8033 and .8034, General Code. Section 8035 provides that an appeal may be taken from such order. Section 11987, General Code, also provides that such order may be made in an action for divorce and alimony. Section 11994, General Code, provides that pending an action for divorce, divorce and alimony, or for alimony only, a court may grant alimony to either of the parties for his or her sustenance during the suit and an allowance for minor children dependent upon either party for support, and when an appeal is taken by either party the circuit court, or a judge thereof' in vacation, may grant like alimony and support during the pendency of the appeal. The appeal referred to in Section 11994, General Code, necessarily means an appeal from the final order and judgment of the court, for no appeal will lie from an order allowing alimony pendente lite. Taylor v. Taylor, 25 Ohio St., 71; King v. King, 38 Ohio St., 370.

The provision of Section 12002, General Code, that when judgment is rendered for both divorce and alimony the appeal will lie only to so much of the judgment as relates to the alimony, does not affect the right to appeal from the order providing for the care, custody and maintenance of minor children, conferred by Section 8035, General Code, when such order is included as a part of the' judgment in that action. The only effect that Section 12002, General Code, has upon Section 8035, General Code, is to authorize an appeal by the wife, without giving bond.

The question presented in the case of Rogers v. Rogers, 51 Ohio St., 1, with reference to appeal in that case, is not identical with the question here. In that case a judgment was entered at the January term, 1889, granting the plaintiff a divorce and the custody of one minor child. The custody of five of the minor children was given to the father, and the decree further provided that the order as to the custody, of these children should be subject to any modification in the future that the coürt might see fit to make. No appeal was taken, or attempted to be taken, from this judgment. At the January term, 1890, a motion asking for a modification of this decree was allowed by the court, and the original judgment modified by giving two of the five children theretofore committed to the custody of the father to the mother, and ordering that the father should pay to the mother for the support of these children $15 per month. From this order modifying the former decree appeal was attempted, and this court held in that case that no appeal could be taken from such an order. It is'apparent, however, that the same statutes that authorize an appeal from the original decree would also authorize an appeal from an order modifying that decree. Therefore the second paragraph of the syllabus in the case of Rogers v. Rogers, supra, is overruled.

An appeal from a final judgment in an action for divorce and alimony or alimony only, confers upon the appellate court jurisdiction to hear and determine all questions involved in such suit, or incident thereto, that are appealable under the statutes of this state. Cox v. Cox, 19 Ohio St., 502. The only part of such judgment that cannot be appealed is the decree for divorce. The question of custody, care, control and maintenance of minor children of the parties to an action is incident to the suit. Where a divorce is granted, or where alimony is allowed to the wife for her separate maintenance, it is the duty of the court to make such order for the disposition, care and maintenance of the minor children of such marriage, if any, as is just, regardless of whether such question is presented by the pleadings or not.

The judgment of the circuit court is affirmed, and this cause is remanded to that court for such further orders from time to time touching the custody and support of the minor child as to said court may seem just and proper.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Wilkin, JJ., concur.


text:
    The City of Dayton v. Rhotehamel, Admr.

      Municipal corporations—Streets and alleys—Duty as to street dedicated but not opened—Whether street improved or opened, question for jury, when—Error to direct verdict, when.

    (No. 14041
    Decided April 1, 1914.)
    Error to the Circuit Court of Montgomery county.

      Mr. Frank S. Breene; Mr. Albert J. Dwyer and Mr. John Roehm, for plaintiff in error.

      Mr. A. C. McDonald and Mr. W. S. Rhotehamel, for defendant in error.
   By the Court.

It is not the duty of a municipality to keep streets and alleys open, in repair and free from nuisance until it opens the same to public travel or in some other manner invites the public to use the same for street and alley purposes, notwithstanding stjch streets and alleys have been dedicated by a private owner to such'public purpose and such dedication has been accepted by the council of a municipality.

The question whether streets and alleys dedicated to public use and accepted by the public have been improved or opened up to public travel, or the public invited in any other way to make use of the same for such purpose, is one for the jury, and where there is any evidence tending to prove' such facts it is error for the trial court to direct a verdict.

Judgment of the circuit court affirmed and cause remanded.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.

Nichols, C. J., and Siiauck, J., dissent.


author: Newman, J.

text:
    Goins et al. v. The State of Ohio.

      Criminal law—Burglary—Any force used constitutes forcible breaking, when—Section IP438, General Code.

    Where any force, however slight, is required to effect an entrance into a building through a doorway partly open such act constitutes a forcible breaking under Section 12438, General Code.
    (No. 14423
    Decided April 21, 1914.)
    Error to the Court of Appeals of Clinton county.
    At the January term, 1913, of the court of com-non pleas of Clinton county plaintiffs in error wer'e indicted under Section 12438, General Code, for maliciously and forcibly breaking and entering in the night season a certain building, namely, a certain chicken house, the property of one Mary Linton, and stealing therefrom chickens of the value of $15, the property of said Mary Linton. A trial to a jury was had, and plaintiffs in error were found guilty as charged in the indictment. A motion for a new trial was overruled, sentence pronounced and judgment entered. This judgment was affirmed by the court of appeals, and plaintiffs in error here seek a reversal of the judgment below and ask for their discharge.

      Messrs. Hayes & Hayes, for plaintiffs in error.

      Mr. Joe T. Doan, prosecuting attorney, for defendant in error.
   Newman, J.

The only means of ingress to and egress from the chicken house was through a doorway of ordinary size. On the evening before the chickens were stolen the door of the chicken house, which was hung upon hinges, was open about fifteen or eighteen inches, being held open by means of a fence post placed on one side thereof and a brick on the other side. The owner of the property, Mary Linton, testified that the door had been propped open in that way—“just so that the chickens and myself could pass in and out.” She stated that the door was not open wide enough to permit her to walk in—she “had to take hold of the edge of the door and then pull around the corner.” It appears from the evidence that the morning after the chickens were stolen the door was from one-half to two-thirds open and the fence post and brick were moved out of place.

That the chicken house was entered by plaintiffs in error and chickens of the value of $15 were stolen by them is not controverted. Counsel insist, however,' that the crime of burglary was not established, that there was no evidence tending to show that there was a forcible breaking and entering of the chicken house and that the court erred in refusing to give to the jury two certain special instructions requested by them to be given before argument. These instructions are as follows:

“If the jury find from the evidence that the building charged in the indictment to have been forcibly, feloniously and burglariously broken and entered was a chicken house and if the mode of ingress to and egress from was through a common sized door hung upon hinges and that the said door was so adjusted that it was left open or partly open so that the owner and the chickens could pass in and out, and you further find that said door was in that condition at the time when it is claimed that it was broken and entered as charged in the indictment, then I charge you that your verdict should be not guilty of breaking and entering said building.”

“If the jury find from the evidence that the building in question was a chicken house and that the only mode of ingress to and egress from said chicken house was through a common sized door, hung upon hinges and a brick or piece of brick was so placed between the sill of said building and said door, so as to leave said door open for a space of from fifteen to eighteen inches, and that upon the outside of said door there was placed upon the ground a piece of fence post to prevent the door from swinging wide open and that through the space thus left the owner could pass into and from said building and that said door was in that condition at the time it is charged it was broken and entered then I charge you that your verdict must be not guilty of breaking and entering said building.”

The objection to these instructions is that there is an assumption that the door was open sufficiently wide that any person might pass in and out of the chicken house. This was a question for the jury, and in view of the fact that the fence post and brick were moved and the door was found to be from one-half to two-thirds open after the chickens were, stolen, the jury was justified in finding that the opening was not large enough to admit plaintiffs in error and that it was necessary to move the obstacles which had been placed against the door to hold it. in position before they could gain an entrance to the house.

The court in its general' charge properly instructed the jury that if it found from the evidence that the door of the chicken house was partly open, so that a person or persons could enter the same, md it was not necessary to remove the brick or post that had been placed against the door to hold it in that position when making an entrance, then that would not constitute a forcible breaking in the sense the statute uses the term.

The court further instructed the jury that if it found that the door was partly open and it was necessary to remove the post or brick placed against it to hold'it in the position in which it was and that the entrance could not have been made into the building without the removal of the brick or post, and that if the brick or post was so removed by plaintiffs in error, or either of them, and an entrance made into the chicken house, then this would constitute a forcible breaking. We are of the opinion that the court charged correctly on this proposition.

Counsel rely upon the following statement in the opinion in Timmons v. State, 34 Ohio St., 426: “The law on the point is, that if the owner leaves his doors open, or partly open, or his windows raised, or partly raised and unfastened, it will be such negligence or folly on his part, as is calculated to induce or tempt a stranger to enter; and if lie does so through the open door or window, or by pushing open the partly opened door, or further raising the window that is a little up, it will not be burglary.”

This doctrine, as was stated by the judge delivering the opinion, had no application in that case, and, aS'We .view it, was clearly obiter. We are aware, however, that it is the holding in a number of cases that where a door or window is partly open and an entrance is gained by pushing open the partly open door or further raising the window it is not a breaking and will not constitute burglary. This rule finds favor with the English authorities, with the courts of Massachusetts and is approved by some text-writers. But there is a tendency on the part of a number of courts to depart from the strict construction of the common law which required an actual breaking. They have adopted what we consider to be the more reasonable and logical rule, holding that but the slightest force is necessary to constitute a breaking.

If any force at all is necessary to effect an entrance into a building through any place of ingress, usual or unusual, whether open, partly open or closed, such entrance is a breaking sufficient in law to constitute burglary if the other elements of the offense are present. People v. White, 153 Mich., 617; Claiborne v. State, 113 Tenn., 261; and the cases cited in note to State v. Vierck, 139 Am. St. Rep., 1040.

In the common-law definition of burglary the word “forcibly” is not used in connection with the word “break,” nor does it appear in the statutes of some of the states whose courts have-adopted the rule to which we subscribe. It is used in the Ohio statute, but as was stated in Ducher v. State, 18 Ohio, 308, the offense is not changed by the statute which adds the word “forcibly” as a qualifying term. And in Timmons v. State, supra, the court say that the application of the rule does not depend upon the degree of force used, but upon the fact that force of some degree, however slight, was used. In that case the court held:

“The force necessary to push open a closed, but unfastened, transom, that swings horizontally on hinges over an outer door of a dwelling-house, is sufficient to constitute a breaking in burglary under our statute, which requires a forcible breaking.”

We think, as was said by the court in Claiborne v. State, supra, that to hold that the opening of a door or window which is closed but not fastened is sufficient evidence of breaking, but that the further opening of a door or window partly open in order to gain an entrance is not sufficient evidence, is a useless refinement.

In the case under consideration, if the door of the chicken house was further opened in order to make the opening sufficiently wide to admit the plaintiffs in error—and this was a question for the jury—unquestionably some force was required, and however slight it may have been it was all that was required to constitute a “forcible breaking” under the statufe, and, taken with the other facts established, made a case of burglary. The trial court, therefore, properly refused to direct a verdict of not guilty and committed no error in refusing to give the two special instructions requested.

As to the alleged error, the refusal of the court to adjourn the hearing of the case and permit defendants below to recall the prosecuting witness for further examination, it is sufficient to say that the request was properly refused for the reasons given by the trial court.

There being no error in the record prejudicial to plaintiffs in error, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.