THE NORTHEASTERN REPORTER VOLUME 147 BINGHAM v. NYPANO R. CO. et al. (No. 18753.) In the trial court Bingham sought to recover damages from the railroad company on account of injuries suffered by him while an (Supreme Court of Ohio. March 17, 1925.) employé of the railroad company. The orig (Syllabus by the Court.) 1. Pleading 417 - Filing amended pleading after demurrer sustained waived any error in ruling. Where the court sustains a demurrer to a pleading and thereupon the pleader files an amended pleading tendering the same issues, any alleged error in the ruling upon such demurrer is thereby waived. Under such circumstances the amended pleading supersedes the original pleading. 2. Pleading 64(2) — Trial 4- Pleader may state in same petition cause of action for reformation of contract and one for damages for breach of contract as reformed; cause of action for reformation is chancery proceeding, and should be heard in advance of cause of action for damages. It is permissible practice to state separate causes of action in a single petition, one of which may be for reformation of contract, and the other for damages predicated upon the breach of the contract as reformed. The first is a chancery proceeding, which should be heard and determined by the court in advance of the trial of the second cause. 3. Appeal and error 80(6), 893(2)—Judgment on issue of reformation of contract is appealable and tried de novo in Court of Appeals; right to trial on appeal not defeated by immediate submission of action for damages on alleged breach of contract as reformed. A judgment upon such reformation issue is appealable and the unsuccessful party is entitled to a trial de novo in the Court of Appeals. Such right to a trial upon appeal is not defeated by an immediate submission of the cause for damages predicated upon alleged breach of the contract as reformed. Error to Court of Appeals, Marion County. Action by Houston Bingham against the Nypano Railroad Company and others, to reform a contract and for damages. Judgment on each cause of action was reversed by Court of Appeals and plaintiff brings error. Affirmed.-[By Editorial Staff.] inal petition contained a single cause of action, which alleges the employment, the injury, and that soon after the injury a written contract was entered into between Bingham and the railroad company, whereby it was agreed that in consideration of the sum of $8,000 the railroad company should be released and discharged from all claims and demands against the company for said injuries. The written agreement contained no other promises, but it is alleged that promises were made that Bingham should have "a life job on the railroad lines of the defendants and also passes to all points on its railroad," that thereafter employment was given to him later he was discharged and the railroad as a watchman, for a period of time; but that company refused thereafter to employ him, although he was willing to continue in such employment. It was further alleged that he believed that the written contract contained a promise of employment and that otherwise he would not have signed the agreement. He therefore prayed reformation of the agreement and damages in the sum of $25,000 for the failure to provide employment. A demurrer to the petition was sustained, and thereupon an amended petition was filed, which did not differ from the first except that it contained two causes of action, the first of which pleaded a cause for reformation of the contract, and the second a cause for damages based upon the contract as reformed. The answer admitted the execution of the written contract and set forth a copy of the same, denying all allegations of the amended petition which were pleaded as grounds of reformation, and claiming that the contract was a valid release from further claims for damages. The issues were completed by a reply. The parties went to trial, and the trial court sitting as a court of equity heard the first cause of action and reformed the contract and ordered the contract to include the conditions as to a life job and passes. On the next day thereafter a jury was em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes amended petition superseded the original petition and all further pleadings and proceedings in the case were addressed to the amended petition. paneled and the second cause of action, upon, This proposition can be easily disposed of. the contract as reformed, was tried, and a When that demurrer was sustained the plainverdict rendered for plaintiff in the sum of tiff did not elect not to further plead and did $12,000. Thereupon the judgment upon the not permit final judgment to be entered on first cause of action was appealed to the that demurrer and prosecute error thereCourt of Appeals, and the judgment upon the from, but on the other hand elected to file second cause of action, upon the contract as an amended petition. Whether or not the reformed, was carried to the Court of Ap-original petition was obnoxious to a demurpeals on error. The Court of Appeals first rer is not open to inquiry at this time. The heard the appeal proceeding and rendered judgment in favor of the railroad company. No motion had been filed to dismiss the appeal and the appeal was therefore heard without objection. Thereupon the judgment in the appellate proceeding was challenged in the Supreme Court by a motion to certify the record, but the motion was overruled and the judgment of the Court of Appeals upon the first cause of action thereby became final. The error proceeding which was still pending in the Court of Appeals upon the second cause of action was thereupon heard and decided, and the Court of Appeals' entry in the error proceeding contains the following: [2] The amended petition was not tested by demurrer, and for the purposes of this case it may be conceded that, if the contract had been reformed in the Court of Appeals on appeal, as it was in the trial court upon the original trial of that issue, the verdict and judgment in the trial court would be sustained throughout. The plaintiff pleaded facts which if proven entitle him to a reformation. The court proceeded to determine that question on the chancery side of the court in advance of a determination of the second cause of action, which involved a case at law. "And the cause in which the judgment in controversy herein was rendered having been appealed from the court of common pleas to this court, and the issue of reformation therein hav- [3] No jury was demanded upon the trial of ing been heretofore submitted to this court, the first cause of action and upon determinaand having been determined and decided against tion in plaintiff's favor and a rendition of a the plaintiff, and reformation of contract having judgment of reformation the railroad combeen refused by this court, and the averment of the amended petition confining plaintiff's pany was entitled to appeal from that judgcause of action for damages, solely to the writ-ment, and upon an appeal being perfected no ten contract, as so sought to be reformed, motion was made in the Court of Appeals to and the petition having by this court been dis- dismiss the appeal and the Court of Appeals missed as to the said issue of reformation, thereupon heard the case as an appeal case the court finds and adjudges that there is er- and decided that issue in favor of the railror to the prejudice of plaintiff in error in the road company. Upon error being prosecuted judgment assessing damages, in the overruling from that branch of the case to the Supreme of the motion for new trial on the ground that the verdict is not sustained by any evi-Court, the overruling of the motion to certify dence. It is therefore considered and adjudged left the judgment in chancery a finality. It that said judgment be and it hereby is reversed and held for naught, and that plaintiff in error be restored to all things lost by reason thereof, and that plaintiff in error recover from defendant in error their costs herein. And inasmuch as the amended petition restricts plaintiff's right to recover damages only in the event the written contract be reformed, it is further considered and adjudged that the amended petition be now dismissed, and that judgment thereon be entered in favor of defendants and against plaintiff." On is common and familiar practice to combine A motion was filed in this court to have that judgment certified to this court for review, and that motion was allowed. Justice, Young & Mouser, of Marion, for Appeals. By perfecting an appeal the judgplaintiff in error. Cook, McGowan, Foote, Bushnell & Burgess, of Cleveland, and Crissinger, Guthery & Strelitz, of Marion, for defendants in er ror. MARSHALL, C. J. [1] The first claim of error is that the trial court erred in sustaining the demurrer to the original petition. ment of the court of common pleas is utterly vacated. The railroad company could not be deprived of its right to a trial de novo of the equitable issue by the mere expedient of combining both causes of action in a single petition. After the Court of Appeals had rendered a contrary judgment on the subject of reformation, it only remained to determine wheth (147 N.E.) defendant permission to inspect, and make a copy of, a certain paper writing purported to be signed by the defendant, and purporting to be a confession made by the defendant. The trial court, having found that the prosecuting attorney had refused such inspection more than four days before the filing of the motion, sustained the motion of the defendant, and ordered that the defendant's attorneys be permitted to inspect and make a copy of the alleged confession signed by the defendant and in the hands of the prosecuting attorney. er there could be a recovery upon the con- | al, counsel for the defendant moved the tritract without reformation, and the Court of al court for an order directing the prosecutAppeals proceeded to hear the error case to ing attorney to allow the attorneys for the determine that question. An examination of the original contract of release discloses that $8,000 was paid by the railroad company to Bingham, and that in consideration of that payment Bingham released the company from all claims and demands. The contract contained no promise of a position or railroad passes, and by the denial of the reformation it becomes conclusive, so far as this case is concerned, that no such promise was made. Manifestly Bingham could not retain the $8,000 and ignore his promise to release the company from further claims for damages. By denying the reformation the record was stripped of all evidence relating to the alleged promise to provide employment and railroad passes. The contract thereby became binding between the parties according to its terms, uninfluenced and unvaried by parol testimony. The Court C. H. Conaway, Pros. Atty., of Cardington, of Appeals apparently ignored all testimony and T. B. Mateer, of Mt. Gilead, for the exrelating to the alleged promise to provide ceptions. employment and passes, and when such evidence was eliminated from the record nothing remained to sustain the verdict and judgment. The Court of Appeals judgment must therefore be affirmed. Judgment affirmed. From this order exceptions were taken by the prosecuting attorney, who, desiring a decision of this court upon his exceptions, has been given leave to file his bill of exceptions in this court. JONES, J. In his brief the prosecuting attorney states that the signed confession in his possession had been submitted to the grand jury as part of the evidence supporting the finding of the indictment. There is nothing in the record to support this state JONES, MATTHIAS, DAY, ALLEN, KIN- ment, nor is that fact determinative of the KADE, and ROBINSON, JJ., concur. STATE v. YEOMAN. (No. 18803.) (Supreme Court of Ohio. March 17, 1925.) (Syllabus by the Court.) legal question involved, which is: Can the defendant or his counsel by an order of the court, compel the prosecuting attorney to submit to them a paper writing, purporting to be a confession, signed by the defendant, and in the possession of the prosecutor, for the purpose of inspection and copy? By its order the trial court determined this question in the affirmative, conceiving that section 11552, General Code, authorized Criminal law 6272-Defendant cannot compel prosecuting attorney to submit writ- such order and compliance upon the part of ten copy for inspection and copy. In a criminal case, the defendant cannot compel the prosecuting attorney to submit to him or his counsel a written confession, signed by the defendant, and in the possession of the prosecuting attorney, for the purpose of inspection and copy. Neither section 11552, General Code, nor section 13664, General Code, requires the giving of such inspection. Exceptions from Court of Common Pleas, Morrow County. the prosecuting attorney. The precise question presented has not so far been determined by this court, although a principle somewhat analogous was discussed in State v. Rhoads, 81 Ohio St. 397, 91 N. E. 186, 27 L. R. A. (N. S.) 558, where Price, J., delivering the opinion, said that neither a transcript of an interview nor the stenographer's notes of the testimony taken before the grand jury could be considered as evidence within the purview of section 5290, Revised Statutes, now section 11552, Gen Annora B. Yeoman was indicted for mur-eral Code. If they could be considered as der. The trial court ordered that her attorney be permitted to inspect and make copy of an alleged confession, signed by defendant and in hands of prosecuting attorney, and latter excepts. Exceptions sustained. -[By Editorial Staff.] The defendant in error was indicted for murder. After arraignment, and before tri evidence, he queried whether they could be admitted in a criminal proceeding, and whether the provisions of that section could be extended to criminal cases by the application of section 7289, Revised Statutes, now section 13664, General Code. The signed confession executed by the defendant, if voluntary, is evidence, and could For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes be offered by the state as part of its proof, enabling a conviction. State v. Knapp, 70 Ohio St. 380, 71 N. E. 705, 1 Ann. Cas. 819; State v. Doty, 94 Ohio St. 258, 113 N. E. 811. Its admissibility, of course, depends on the fact whether the signed confession was voluntarily made. This preliminary fact is determined by the court on a voir dire examination, wherein the burden of proof is placed on the defendant to show that the confession was involuntarily made, or obtained by improper inducements. Rufer v. State, 25 Ohio St. 464. While in a civil case a signed confession of this character could be introduced as substantive evidence showing a declaration made against interest, and an inspection and copy thereof compelled under the provisions of section 11552, General Code, we are of the opinion that in criminal cases such inspection and copy cannot be compelled. That section is found in the Code of Civil Procedure, and does not apply to criminal cases, unless it is made applicable by section 13664, General Code. That section reads as follows: "Except as otherwise provided, the Code of Civil Procedure relative to compelling the attendance and testimony of witnesses, their examination, the administering of oaths and affirmations, and proceedings for contempt to enforce the remedies, and protect the rights of parties, shall extend to criminal cases so far as applicable." While the Legislature had ample power to provide that the provisions of section 11552, General Code, should apply generally to criminal cases, it did not do so. In section 13664, General Code, there is a requirement that the Code of Civil Procedure should be extended specifically to criminal cases, in so far as it relates to the attendance, testimony, examination, and oaths of witnesses. The inspection of documents does not come within either of these special provisions. The extension of the civil section to criminal cases, covering remedies and protection of the rights of the defendant generally, other than those specifically named, is confined to proceedings for contempt only. We are unable to see how a denial of such inspection and copy would seriously interfere with the rights of the defendant. This could be safeguarded on the trial. If the prosecuting attorney, after proof that the confession in his possession was signed by the defendant, should offer it as evidence tending to establish proof of guilt, or should examine a witness in relation thereto, defendant's counsel could then make a demand for it, and it would be the duty of the court to submit the written confession for inspection by counsel; but the defendant has no right to demand or compel the inspection or copy of a signed confession unless the state attempts to use it at the trial. The exceptions are sustained. Exceptions sustained. MARSHALL, C. J., and MATTHIAS, DAY, ALLEN, KINKADE, and ROBINSON, JJ., concur. O'BRIEN v. O'BRIEN et al. (No. 18757.) (Supreme Court of Ohio. March 17, 1925.) (Syllabus by the Court.) 1. Gifts 50-Proof of intention to make gift without proof of delivery to donee held not to make case for jury. In an action by an alleged donee to recover personal property, or its value, from the legal the intention on the part of the alleged donor representative of an alleged donor, proof of to make the gift, either inter vivos or causa mortis, without proof of delivery of the thing given, actual or constructive, to the donee, or to some person as agent or trustee of the donee, either designated by the donor or known by the donor to have been designated by the donee, is insufficient to carry the case to the jury. 2. Gifts 22—Delivery of paper writing, describing personal property to third person in donee's presence, held not delivery to donee. Delivery of a paper writing, describing personal property, and indicating an intention to give such personal property to the alleged donee, to a third person by an alleged donor in the presence of the alleged donee, without any direction or instruction from either, does not constitute a delivery to the alleged donee. Error to Court of Appeals, Lucas County. Action by Mary O'Brien and others against Edith I. O'Brien, administratrix. Judgment for plaintiffs was affirmed by the Court of Appeals, and defendant brings error. Reversed and entered.-[By Editorial Staff.] The record in this case discloses that the decedent of plaintiff in error died in Savannah, Ga., on the evening of the 29th day of November, 1920, and that on the morning of the 29th of November, 1920, he signed a paper writing, of which the following is a copy: "Savannah, Ga., Nov. 29, 1920. "To Whom Concerned: "I hereby authorize my Mother Mrs. Mary. OBrien the privilege of access to my Safety Deposit Vaults & all money which I have in banks. "Witnessed by [Signed] Louis V. O'Brien. "1. Walter A. Norton. "2. H. G. Lee, M. D. "3." The record further discloses that that portion of the paper writing, other than "& all money which I have in banks," was prepared For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |