text:
    Routzong, Exrx., Appellee, v. Minsterman et al., Appellants.
    (No. 706
    Decided November 14, 1952.)

      Messrs. Sfidel, Staley é Mole, for appellee.

      Messrs. Goubeaux & Goubeaux, for appellants.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Darke County, in an action construing the will of Margaret D. Townsend, deceased.

Margaret D. Townsend died testate on February 2, 1945. Her last will and testament and several codicils were admitted to probate by the Probate Court of Darke County. In item two of her will, she devised certain property to her niece, Elsie Black, who died testate on March 26, 1952. In her will, Elsie Black left the residue of her estate to The First Church of Christ Scientist of Greenville, Ohio, the appellant herein. At the time of her death, Elsie Black possessed certain property which came to her under the will of Margaret D. Townsend. The question for the court to determine is whether this property passed under the will of Elsie Black to The First Church of Christ Scientist, or whether, upon the death of Elsie Black, such property passed in remainder to the devisees mentioned in item two of the will of Margaret D. Townsend.

The trial court found that by the terms of the will of Margaret D. Townsend, Elsie-Black took only a life estate with the right to use and consume, and that the property which remained at her death, to wit, the real estate; a $500 United States G Bond; one share of stock in City Service Corporation; and four shares of preferred stock in the American Aggregates Corporation, ail issued in the name of Elsie Black, passed to the devisees mentioned in item two of the will of Margaret D. Townsend.

The appellant The First Church of Christ Scientist assigns as error that the judgment is contrary to law. The contention of the appellant is that under the provisions of the will- of Margaret D. Townsend, Elsie Black took a fee simple title in the property and that, as a consequence, such property passes to the church under the provisions of her will.

The determination of this question requires the court to construe item two of the will of Margaret D. Townsend, which reads as follows:

“Item two. After payment of debts and cost of administration, the remainder of my property whatever kind or character, I hereby will, devise and bequeath to my niece, Elsie Black, for her use in any manner she may deem proper without any limit or restriction whatever, with full power and authority to sell or to exchange, and to reinvest any of my property as she deems best without any order of any court. It is, however, my wish and will that she preserve as far as she conveniently can the identity of the property she receives from me, and if any remains unusued at her death it is my will that four hundred dollars be paid to St. Paul’s Reformed Church of Greenville, Ohio, and that one hundred dollars be paid to the Women’s Missionary Society of said church.

‘ ‘ Of the remainder of my property, I will and devise one sixth thereof to Edith Dininger only child and daughter of my brother, Isaac Dininger, deceased, and five sixth thereof to my sister, Catharine Fitzgerald who has five children.”

The question for the court to determine is whether Elsie Black took a fee simple estate or a lesser estate. In a will construction suit the cardinal rule for the court to follow is to ascertain and give effect to the intention of the testator. The intention of the testator must be gathered from the four corners of the will. In the instant case, what was the intention of the testatrix? If we are to give consideration only to the first part of item two, we would be inclined to hold that Elsie Black took an estate in fee simple. But we cannot ignore other provisions in the will which indicate the true intention of the testatrix relative to the estate devised. We must give effect to all the provisions of the will, if such provisions are reconcilable.

We recognize the rule that where a fee simple estate is clearly given an attempt to give an estate over of the remainder is void._ 41 Ohio Jurisprudence, 742, Section 626. The rule is easily understood; the difficulty lies in its application. Rules of construction are to be followed only as they are found to oe aids to a deter-mi-nation of the intention. We are required to consider and give effect to the provision wherein the property is given to Elsie Black “for her use in any manner she may deem proper without any limit or restriction whatever, with full power and authority to sell or to exchange, and to reinvest any of my property as she deems best without any order of any court.” The contention of the appellant is that these words give to Elsie Black absolute power of disposition and, therefore, create a fee simple estate in Elsie Black. On the other hand, the appellee contends that the words, “for her use, ’ ’ are words of limitation and create an estate less than a fee simple estate.

The fact that the testatrix gives full power and authority to sell or exchange the property does not necessarily create a fee simple estate. An unlimited power of sale is consistent with a grant of a life estate if the will as a whole is susceptible of such a construction. The words, “It is, however, my wish and will that she preserve as far as she conveniently can the identity of the property she receives from me,” indicate an intention to give only a life interest, rather than a fee. .It is clear that the testatrix intended to and did provide for the disposition of any property which would remain unconsumed and unused at the death of Elsie Black. If it was the intention of the testatrix to devise a fee simple estate, then all the other provisions herein considered and enumerated would be given no effect. In our opinion, the fact that the testatrix devised the property to Elsie Black “for her use” and with power of sale, and provided the right to reinvest any of the proceeds of the sale without an order of court, and the further fact that the testatrix desired to preserve the identity of the property for the remaindermen, discloses an intention on the part of the testatrix to give to Elsie Black an estate for life with power to consume, and the remainder, if any, to other named devisees and legatees.

While we are satisfied that the judgment of the trial court was in every respect correct, we cannot help but observe that the question presented is a close one, and since precedents are of little value in will construction suits, we discuss briefly only a few of the Ohio cases touching this question.

In Baxter v. Bowyer, Admr., 19 Ohio St., 490, the will provided:

“I give and devise all my property to my beloved wife, Deborah Baxter, both real and personal, of every description, with full power to collect, by law or otherwise, all debts due me, and to adjust and pay all expenses resulting from my last sickness and demise, and all other just claims whatsoever. I also expressly desire that she shall have unlimited power in the possession of all property, real and personal, thus bequeathed to her; to sell, at public or private sale, on such terms as she may think best, or use in any manner as she may deem proper, any or all of the property, real or personal; and deeds to purchasers to execute, acknowledge, and deliver in fee-simple.”

In the second item of such will the testator provided that at the death of his wife, $200 should be paid to a cemetery, and in the third item provided:

“I do hereby devise and bequeath, at the death of my beloved wife, after all expenses resulting from her last sickness and demise, and expenses of tombstones and item second shall have been adjusted, all the property then remaining to the presbytery of Cincinnati.”

The court held that under this will the wife took only a life estate and life support, with power of sale for the benefit of the estate, and that the remainder went to the parties specified in the last two items.

The first and second paragraphs of the syllabus are as follows:

“Conflicting provisions in a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either of them should be rejected.

‘ ‘ Where, by one clause in a will, property is devised or bequeathed, by words prima facie importing an absolute estate, and by a subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate, and the limitation over is valid. ’ ’

In some respects the provisions in the will under construction indicate more clearly the intention to create a life estate than did the provisions of the will in the Baxter case.

In Johnson v. Johnson, 51 Ohio St., 446, 38 N. E., 61, the first paragraph of the syllabus is as follows:

“A testator, after providing for the payment of his debts, used the following language in his will: ‘Second — I give and devise unto my beloved wife, and her assigns, all of the remainder of my property, both real and personal, however the same may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters, and their children, if deceased, the children to have the same amount the parent would be entitled to if living. ’ Reid: That under this will the widow took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life support, and that what remained at the time of her death, uneonsumed in supporting her, belongs to the remaindermen designated in the will. ’ ’

The court in its opinion used language which has particular application to the question presented in the instant case. On page 457, after quoting the first part of the provision of the will there under construction, the court said:

“That this part of the will standing alone, would give to the widow a fee simple, cannot be doubted; and if what follows could be fairly construed as merely superadded words attempting to impose a limitation upon the fee thus devised, such limitation would, of course, be void, and the fee would remain.”

On page 458, the court discussed the effect of the provision in the will giving power of sale, and said:

“The fact that after using words which in themselves would give a fee, full power to bargain, sell, convey, exchange or dispose of the estate as she may think proper is expressly given to her by the testator, at once creates a slight inference that something less than a fee was intended; because a fee of its own force carries with it, and confers upon her the power, without express words from him to that effect, to bargain, sell, exchange, or dispose of the property as she may think proper. ’ ’

The court then discussed the effect of the provision of the power of sale taken in conjunction with other provisions of the will as reflecting upon the intention of the testator, and on page 458 stated:

“While the express addition of these powers to words giving a fee, would not have the effect in themselves to destroy the fee, yet when these express powers are taken in connection with what follows the part of the will above quoted, the intention of the testator to give to his wife only a life estate in his property becomes clear and manifest. After the quotation above given, the will proceeds as follows: ‘But, if, at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters and their children,’ etc.

“The plain intention of the testator as shown by the whole will, is, that the property is given to the widow to be by her used and consumed, and that while so using and consuming the same she is empowered to bargain, sell, convey, exchange, or dispose of the same as she may think proper, limited, however, in the exercise of such power, to the purpose for which the property is given to her, that is for her consumption. ’ ’

The court cites with approval and follows the case of Baxter v. Bowyer, supra.

In Tax Commission v. Oswald, Exrx., 109 Ohio St., 36, 141 N. E., 678, the first paragraph of the syllabus is as follows:

“The testator used the following language in his will: ‘ First. I will and bequeath to my wife, J ennie V. Oswald, whatever property I am possessed at my decease, both personal and real. She to have full power to sell, deed and transfer, any or all of it, as she may deem best to better her conditions.

“ ‘Second. After the death of my wife whatever property remains of my estate I will and bequeath as follows: One-half (%) to J. W. Oswald or his issue; one-half (%) to J. M. Oswald or his issue.

“ ‘Third. At the time of this distribution^ should either of my brothers above be deceased, without leaving issue — then such share shall go to the brother remaining or his issue.’

“Held, that the wife, Jennie V. Oswald, took a life estate in the property, both personal and real, coupled with power to sell, deed and transfer any or all of it ‘as she may deem best to better her condition,’ and that the gift over of what may remain unconsumed amounts to a vested remainder in the whole of the property, subject to be divested in part from time to time, or in whole by the exercise of the power. (Johnson v. Johnson, 51 Ohio St., 446, 38 N. E., 61, approved and followed.) ”

The court, on page 49, cited the case of Robbins v. Smith, Jr., Admr., 72 Ohio St., 1, 73 N. E., 1051, and quoted from page 16 as follows:

“ ‘The real question at the bottom of the inquiry, so far as the claim of repugnancy is concerned, is akin to that presented in Baxter v. Bowyer, 19 Ohio St., 490, and in Johnson v. Johnson, 51 Ohio St., 446. Those cases establish the rule that conflicting provisions of a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either should be rejected. And where, by one clause in a will, property is devised or bequeathed, by words prima facie importing an absolute estate, and by. subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate, and the limitation over is valid.’ ”

In the case at bar, we find no repugnancy between the provisions of the will of the testatrix wherein she devises an etsate to Elsie Black, and the provision made for the remaindermen. All the provisions of the will can be reconciled on the theory that it was the intention of the testatrix to give Elsie Black a life estate with the power to consume.

In the case of DeWolf v. Frazier, 80 Ohio App., 150, 73 N. E. (2d), 212, a similar question was presented. In that opinion the court reviewed a number of cases including the cases discussed in this opinion. On page 153, the court, in discussing the effect of the qualifying clause in the will, held:

“If there were no other provisions in the will to be taken into consideration it may be construed to pass a fee simple estate. However, the words ‘to do with and use as she see best fit to do,’ do not clearly and definitely show an intention to devise a fee simple estate. The fact that the testatrix used those words at all shows an intention to devise an estate less than a fee simple. ’ ’

Again, on page 154, the court said:

“In ascertaining the intention of the testatrix we have a right to assume that if the testatrix had intended to devise a fee simple estate to Agnes Frazier she would not have provided for a disposition of the remainder; neither would there have been a necessity for the use of a qualifying clause. We are required to give meaning and effect to both clauses, if possible.”

The repugnacy which was found to exist in the will under construction in the case of Krumm, Exr., v. Cuneo, 71 Ohio App., 521, 47 N. E. (2d), 1003, does not exist in the will under construction in the instant case.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The State, ex rel. Baker, v. Tehan, Sheriff.
    (No. 7758
    Decided May 22, 1953.)

      Mr. Louis C. Capelle, for petitioner.

      Mr. C. Watson Hover, prosecuting attorney, for respondent.
   Per Curiam.

From the evidence presented, it appears that the petitioner was in lawful custody, charged with a violation of probation. It also appears that the petitioner was brought before the court, that no counsel for him was present, that no statement by anyone charging violation of the terms of probation was made, and that the court summarily revoked probation and made its order accordingly.

In State v. Nowak, Jr., 91 Ohio App., 401, 108 N. E. (2d), 377, it is stated in the fourth paragraph of the syllabus:

“The minimum requirements of a judicial inquiry include a public hearing in open court with timely notice to defendant; that defendant be entitled to be present, represented by counsel and be advised of the nature of the accusation against him; that the defendant be given an opportunity to be heard and to submit evidence in his own.behalf; and, generally, that defendant be accorded reasonable opportunity to bring to the court’s attention, as far as he is able, such facts and circumstances as tend to contradict or explain the alleged violation of the probation order. ’ ’

Ordinarily, a judgment revoking probation may be set aside only by a proper review of such judgment in an appeal on questions of law. However, where it is made to appear that the provisions of Sections 13452-1 to 13452-11, General Code, were ignored by the court, no judicial inquiry occurred and the defendant is deprived of his liberty without any due process of law.

In view of the evidence presented, the writ of habeas corpus will be granted and petitioner remanded to such lawful custody as existed prior to the unwarranted order of the court revoking his probation. See 25 American Jurisprudence, 249, Section 153.

Judgment of this court may be entered accordingly.

Judgment accordingly.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


text:
    Byrkett, Appellee, v. Curtis, Appellant.
    (No. 475
    Decided March 27, 1953.)

      Mr. Michael E. Norris and Miss Marie C. Schmuecker, for appellee.

      Mr. Earl H. Moore, Jr., for appellant.
   Per Curiam.

This cause is now before this court on motion of plaintiff, appellee, to dismiss the appeal on the ground that the order appealed from is not a final order.

The action is one for partition. After judgment the defendant, appellant, filed a motion to set aside the order of partition, the writ of partition, the election to take at the appraised value, and the commissioner’s report. After hearing, the motion was overruled. From the order overruling the motion this appeal was taken.

An order overruling a motion to vacate a judgment has always been held to be a final order. 2 Ohio Jurisprudence, 225, 226, Section 110, and cases cited.

Motion to dismiss overruled.

Motion overruled.

Wiseman, P. J., Hornbeck and Miller, JJ., concur.


author: Griffith, J.

text:
    The State of Ohio, Appellee, v. Harland, Appellant.
    (No. 284
    Decided November 15, 1952.)

      Mr. Charles P. Baker, Jr., for appellee.

      Mr. George Buehwalter and Mr. Mark Sperry, for appellant.
   Griffith, J.

Stuart M. Harland, sheriff of Geauga county, was charged by indictment with pampering a prisoner who had been sentenced to imprisonment in the county jail. To this indictment, he pleaded not guilty, and a trial was had resulting in a verdict of guilty. Judgment was entered upon that verdict, and a reversal is sought in this court.

The indictment, omitting formal allegations, charged:

“Stuart Harland on or about the 4th day of April, 1951, in the county aforesaid, being sheriff of said county and having the care and custody of said county jail did permit a prisoner, to wit: one George Gordon, to be dealt with less strictly than intended by his sentence, to wit: permitted said George Gordon to go beyond the confines of his cell and use the jail telephone at 10:06 o’clock p. m., on April 4, 1951.”

Section 12849, General Code, reads as follows:

“Whoever, being a sheriff, jailer or other person having the care and custody of a jail, permits it to become foul or unclean so that the health of a prisoner may be endangered, or permits a prisoner to be dealt with less strictly than intended by his sentence, shall be fined not more than one hundred dollars.”

Gordon was a prisoner in the county jail at the time mentioned in the indictment, and he was let out of his cell not only on this occasion but at many other times to make telephone calls.

The sheriff in any county has charge of the jail and the prisoners.

Section 3157, General Code, provides:

“The sheriff shall have charge of the jail of the county, and all persons confined there, keep them safely, attend to the jail, and govern and regulate it according to the rules and regulations prescribed by the Court of Common Pleas.”

Section 13451-1, General Code, provides :

“When a person convicted of a misdemeanor is sentenced to imprisonment in jail or the workhouse, the judge or magistrate shall order him into the custody of the sheriff or constable, who shall deliver him, with the record of his conviction, to the jailer or keeper, in whose custody he shall remain in the jail of the county or workhouse, as the case may be, until the term of his imprisonment expires or he is otherwise legally discharged.”

Section 2831, General Code, provides:

“The sheriff shall be responsible for neglect of duty or misconduct in office of each of his deputies.”

There was no testimony that the sheriff personally ever let Gordon out of his cell to make calls.

The record discloses that the acts complained of were committed by the defendant’s deputies, and there is no proof of any knowledge of or consent to the acts of the deputies by the defendant sheriff. The record is entirely devoid of evidence of personal acts on the part of defendant constituting any offense, or knowledge or consent on his part to the acts of his deputies.

Section 12849, General Code, does not provide that a sheriff is the party absolutely liable thereunder, but rather provides:

“Whoever being a sheriff, jailer or other person having the care and custody of a jail.”

The important question in this case is whether the sheriff is criminally responsible for the acts of his deputies where he had no knowledge of such acts and where he neither participated in, consented to, nor ratified them.

The general rule is that the sheriff is not criminally responsible or liable for the acts of his deputies.

47 American Jurisprudence, 932, Section 158, provides in part:

“As a general rule, however, such officers are liable civilly but not criminally for the acts and omissions of their deputies appointed or selected by them when the deputies are acting officially or under color of the office.”

See, also, 1 Anderson on Sheriffs, Coroners and Constables, 271, Section 265.

Section 9, General Code, reads as follows:

“A deputy, when duly qualified, may perform all and singular the duties of his principal. A deputy or clerk, appointed in pursuance of law, shall hold the appointment only during the pleasure of the officer appointing him. The principal may take from his deputy or clerk a bond, with sureties, conditioned for the faithful performance of the duties of the appointment. In all cases the principal shall be answerable for the neglect or misconduct in office of the deputy or clerk. ’ ’

Nowhere does either Section 9 or Section 2831, General Code, say that an officer shall be criminally responsible for the acts of his deputies. These sections contain merely restatements of the common law covering the civil liability of an official for the acts of his deputies.

“A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.” State v. Meyers, 56 Ohio St., 340, 47 N. E., 138.

In the case of Williams v. Steen (Ohio App.), 23 Ohio Law Abs., 202, the court held:

“Punitive damages cannot be recovered against a sheriff for acts of the deputy sheriff in the absence of evidence that the acts were done and the assault was authorized, participated in or ratified by the sheriff.”

We hold that Sections 2830, 2831 and 9, General Code, merely restate the civil liability of the sheriff under the common law.

In charges of a criminal nature, guilt is a personal matter and must be shown by either proving that the defendant actually performed the acts alleged or otherwise participated in them by knowledge of such acts on his part coupled with a failure to stop them, or by consenting to such acts and thus participating therein.

It was incumbent upon the state to prove the allegations of the indictment; to prove that the sheriff of Geauga county permitted George Gordon, a prisoner, to be dealt with less strictly than intended by his sentence, not that his deputies did so.

Section 2831, General Code, is not part of Section 12849, General Code, and may not be tacked on to it. In the case of City of Cleveland v. Jorski, 142 Ohio St., 529, 53 N. E. (2d), 513, the court held:

“Penal statutes and ordinances are strictly construed and may not be extended, by implication to cases not falling within their terms.”

In 37 Ohio Jurisprudence, 823, Section 513, it is stated:

“If the meaning of a penal statute cannot be judicially ascertained or if, in defining a criminal offense, it omits certain necessary and essential provisions which go to impress the acts committed as being wrongful and criminal, the courts are not at liberty to supply the deficiency or to undertake to make the statute definite and certain.” See, also, State v. Meyers, supra.

The main and real issue in this case is whether the sheriff is criminally responsible for the acts of his deputies. We hold that he is not. He may not be convicted of crime for something a deputy has done.

Section 2831, General Code, has reference to civil liability and may not be extended to criminal liability. We hold that criminal guilt is personal, and, except in cases where the sheriff authorizes, participates in or ratifies the acts of his deputy, he may not be held criminally liable under Section 12849, General Code.

So viewing it, it follows that the judgment of the Court of Common Pleas should be reversed and the defendant-appellant discharged.

Judgment reversed.

Nichols and Phillips, JJ., concur.


author:
Thompson, J.
      Per Curiam.

text:
    Marolt, Appellee, v. Lisitz; Indemnity Ins. Co. of North America, Appellant.
    (No. 22570
    Decided November 24, 1952.)

      Messrs. Payne, Hermann & Pusti, for appellee.

      Messrs. Bulkley, Butler é Rim, for appellant.
   Thompson, J.

This is an appeal on questions of law from a judgment entered in the Municipal Court of Cleveland on a verdict of a jury, finding the defendant insurance company, appellant herein, liable to plaintiff for injuries growing out of an automobile accident.

Plaintiff, appellee herein, originally brought an action for personal injuries and damage to his automobile against one Frances Lisitz who was driving a Buick automobile at East 9th street and Superior avenue in the city of Cleveland, and, also, against one Bennie Klein, the record owner of the automobile. An answer was filed by the defendant Bennie Klein denying liability. No answer was filed by the defendant Lisitz, although service of summons had been obtained upon her. On July 28, 1950, after plaintiff had dismissed his action against the defendant Klein the case came on for hearing against the driver of the automobile, Frances Lisitz, and- default judgment for $4,400 was entered against her by the trial court.

Subsequently, on October 30, 1950, plaintiff filed a supplemental petition, under favor of Section 9510-4, General Code, naming the Indemnity Insurance Company of North America as a new party defendant on the theory that the insurance policy of the owner, Klein, under the omnibus clause, extended coverage to the driver, Frances Lisitz, thereby making the insurance company liable to plaintiff in the amount of the judgment obtained by plaintiff against her.

The omnibus clause in question reads as follows:

“The insured includes the named insured and also any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile was by the named insured, or with his permission. ’ ’ .

The answer of the insurance company admitted issuance of a policy of insurance to Klein, admitted that plaintiff had recovered a judgment against defendant Frances Lisitz, and denied that the latter was at the time operating a Buick automobile owned by Klein with the consent, express or implied, of the latter.

The case came on for hearing before a jury on the issues raised by the supplemental petition. To prove his case, plaintiff called three witnesses. The first was Ritchie, a member of the Cleveland police department on April 14, 1949, the date of the accident. Ritchie testified that when he arrived at the scene of the accident he saw plaintiff and Prances Lisitz. He ascertained that the license number of the car being driven by her was listed in the name of Bennie Klein. Ritchie testified also that about 20 minutes later a man appeared whom he understood was Bennie Klein. The witness was asked what, if anything, the individual referred to stated and, over the objection of defendant’s counsel, the court permitted Ritchie to answer the question as follows:

“He said it was all right for this lady to have the car. ’ ’

After cross-examination, the court stated that a motion to strike the testimony would be granted unless plaintiff could connect up this testimony with Bennie Klein. It does not appear, however, that this testimony was ever connected up and, on the other hand, there is no evidence in the record that the trial court subsequently instructed the jury to disregard it. As we view the evidence, it was in any event inadmissible.

The second witness, Ward, was also a police officer who was called to the scene of the accident. He saw both drivers and a third person who identified himself as Mr. Klein. Ward testified with respect to the latter :

“I asked him if he owned the car * * * and he said, ‘yes,’ and that he had given her permission to drive.”

Although objected to by defendant, the court permitted this evidence to stand. Ward further testified that Mr. Klein was “kind of short and of stocky build.”

The third witness was plaintiff’s attorney, who testified that Mr. Klein, whom he had seen personally in court, was a person of short, stocky build.

Plaintiff rested at this point and defendant moved for a directed verdict, which was overruled. Thereupon the insurance company, as a part of its defense, read the deposition of Benny Klein. Mr. Klein testified that on April 14, 1949, he was the owner of a Buick automobile and that prior to that date he had discussed the sale of the automobile with a man by the name of Marty Lisitz. Klein said he was buying a new car and was going to sell his Buick and that Lisitz inquired, ‘ ‘ Why not sell it to me ? ’ ’ Klein stated that he therefore loaned Lisitz the car for a tryout. Klein testified upon that point specifically as follows:

“I turned the key over to him and I also had my man there and I says, ‘There is the key, Jack. If he delivers the money that’s his car. If he hasn’t got the money, take the car back. ’ ’ ’

Klein was unable from memory to give the date when he thus turned over the car to Lisitz. Klein stated also that he knew a woman by the name of Frances Lisitz and had seen her two or three times in the restaurant of Martin Lisitz. Klein was then asked the specific question: “When you turned over the keys of the car to Martin Lisitz, did you tell him who could drive the car?” The answer was “No.” On cross-examination Klein stated also that he was out of town when the accident happened, that he did not go to the scene of the accident, and that he did not talk to any policeman investigating the accident.

The defendant’s counsel, upon redirect examination of Klein, asked him whether he had at any time authorized Frances Lisitz to drive the ear. The answer was, “never.” Klein said also that he did not talk to Marty Lisitz as to any limitation on the use of the car, the testimony in this respect being as follows:

“Q. You didn’t tell him whether he could loan it to anyone or not? A. I didn’t expect him to. I just wanted him to try it out.

“ Q. You didn’t talk to him about it ? A. No. ”

Defendant called one other witness, who merely gave a description of Klein. Thereupon, defendant rested and renewed its motion for a directed verdict, which was overruled by the court. The court then charged the jury, and a verdict was returned in favor of plaintiff against the insurance company. The trial judge rendered judgment against the insurance company in accordance with the verdict. A motion for a new trial on the part of defendant was overruled.

Since examination causes us to believe that the judgment of the trial court must be reversed, we shall not take up all the assignments of error urged by defendant, contenting ourselves with a discussion of two grounds of error urged which seem determinative of the case. The first of these urged errors pertains to the admission in evidence by the trial court of testimony of the two police officers over the objection of defendant. Each testified to the declaration of a late arrival at the scene of accident that it was “all right for this lady to have the car.” This testimony was hearsay and, therefore, was not admissible in evidence regardless of whether made by Klein or by some other spectator. It was not properly an item for consideration by the jury in their determination of whether or not Frances Lisitz was driving with the consent of Klein. Whoever made the statement, it was not made by a party to the case, the action having been previously dismissed as to Klein, and, therefore, it was not admissible as an admission against interest. It was likewise not admissible as a part of the res gestae, or under any other recognized exception to the hearsay rule. Its admission constituted prejudicial error so far as defendant was concerned for, without it, there was no evidence by plaintiff showing the consent, direct or indirect, of Klein to the operation of his automobile by Frances Lisitz.

The other assigned error we deem it essential to discuss is that involving defendant’s motion for a directed verdict at the conclusion of all the evidence. By accepting the ruling of the trial court on defendant’s motion for a directed verdict at the close of plaintiff’s case and proceeding with its defense, defendant waived its right to rely on the motion. In re Estate of Robinson, 145 Ohio St., 55, 60 N. E. (2d), 615; 39 Ohio Jurisprudence, 872, “Trial,” Section 216.

We have properly before us, however, the defendant’s motion for a directed verdict at the conclusion of all the testimony. We have said that the hearsay testimony offered by plaintiff, through the police officers, concerning permission of Frances Lisitz to drive the car was not properly admissible in evidence and that there was, therefore, no competent testimony of any kind introduced by plaintiff that Frances Lisitz was operating the automobile at the time of the accident with the consent of the owner or of his permittee. Was that lack in the testimony supplied by the evidence offered by defendant? Clearly not. The testimony of owner, Benny Klein, offered by defendant, was that he gave Martin Lisitz the right to try out the car and to buy it if he saw fit. At the same time, Klein stated categorically that he had never authorized Frances Lisitz to drive the car. On this state of the record, and in view of the unavailability of Frances at the trial and the failure of either side to subpoena Martin Lisitz, there was no evidence presented as to the circumstances under which she was driving the car. Such evidence is essential in view of the Ohio cases and particularly the recent ease of Gulla v. Reynolds, 151 Ohio St., 147, 85 N. E. (2d), 116. In the latter case, it was emphasized that even where permission to use an automobile is granted by the insured, the actual use by the permittee must be within the terms of the original purpose for which the consent was given.

Martin Lisitz, as bailee of the vehicle, had broad authority for its use, and circumstances can readily be imagined under which the coverage of the policy extended to Martin might embrace and protect someone authorized by him to operate the car. Such a case, in fact, was Brown, a Minor, v. Kennedy, 141 Ohio St., 457, 48 N. E. (2d), 857, where the insured owner granted permission to his daughter, Dorothy, to use his automobile to go back and forth to college and she, in so doing, entrusted the wheel to her boy friend, Bennett. The Supreme Court of Ohio held that the omnibus clause was broad enough to include Bennett, but the court was careful to point out that the actual use of the car was in the furtherance of the daughter’s purposes when the accident occurred. In being transported to school, she was using the car as effectively as if she had been at the wheel at the time of the accident. In emphasizing this point, the court declared in the opinion: “Had the evidence disclosed that Bennett White was driving alone on some mission of his own a different situation would be presented.”

In the instant case, we have evidence that Frances Lisitz was driving the automobile bailed by Klein to Martin Lisitz, but not one scintilla of evidence disclosed that she was operating it with the consent either of the permittee or of the owner. There is no evidence as to whether Frances was related to Martin. Whether she was engaged in the furtherance of the general purposes of Martin Lisitz at the time of the accident, or whether she was an intermeddler, driving the car without his permission or contrary to his orders, is pure speculation.

In 7 Appelman Insurance Law and Practice (1942), 133, Section 4354, in a discussion of the conventional omnibus clause of automobile liability insurance policies such as we are here confronted with, the author states:

“An omnibus clause creates liability insurance not only for the benefit of the named insured, but also for the benefit of those who come under the clause and meet its requirements; or, in other words, it does not afford additional protection to the owner, but extends protection to third persons operating the vehicle with the insured’s consent. Of course, the necessary relationship between the additional insured and the owner must appear in order to bring such person within the protection of the contract.” (Emphasis added.)

What we are here venturing to suggest is that plaintiff in this case, in order to recover against the insurance company, was required as an essential ingredient of his claim to establish that he came within the protection of the omnibus clause of the policy and this he could only do by showing that Frances Lisitz was covered because she had permission to drive the car from someone having authority to grant it, i. e., either the owner, Klein, or the bailee, Martin Lisitz. Soukup v. Halmel (1934), 357 Ill., 576, 192 N. E., 557. See, also, 7 Appelman Insurance Law and Practice, 185, Section 4371, declaring that, in a suit to recover for injuries inflicted by one alleged to be an additional insured under the omnibus clause of an insurance policy, plaintiff has the burden of proving that permission actually existed under the facts and circumstances of the case. Failure to prove that the bailee either had authority to delegate permission from his wife or that the driver was fulfilling the bailee’s purpose.appears to us to be adequate explanation of the decision in Fox v. Crawford (Ohio App.), 50 Ohio Law Abs., 553, 80 N. E. (2d), 187. For a valuable annotation on the general subject, and a collection of authorities, we refer to 5 A. L. R. (2d), 600, the annotation being entitled, “Automobile liability insurance: Permission or consent to employee’s use of car within meaning of omnibus coverage clause, ’ ’ and particularly to Section 26, on page 666, relating to burden of proof, and cases there cited. The Ohio case mentioned, Kazdan v. Stein, 26 Ohio App., 455, 160 N. E., 506 (affirmed, 118 Ohio St., 217, 160 N. E., 704), is a decision of this court. That the burden of proof in such instance is on plaintiff, see, likewise, Bailey v. Weaver, 67 Ohio App., 259, 35 N. E. (2d), 1006. The matter of requiring plaintiff to prove the essential elements of his case is entirely different from the question of the burden of proof in connection with an affirmative defense pleaded in the answer of an insurance company denying liability under the terms of the policy, for example, lack of cooperation by the assured. In such circumstances, the burden of proof must be met by the insurance company. Ermakora v. Daillakis, 90 Ohio App., 453, 107 N. E. (2d), 392.

For the reasons indicated, we hold that the trial court committed prejudicial error in the admission of testimony which should have been excluded, and that, if properly excluded, there would have been no evidence to sustain the verdict of the jury, and that the court likewise committed error in overruling defendant’s motion for a directed verdict at the close of all the testimony.

The judgment of the trial court is reversed and final judgment is rendered for defendant.

Judgment reversed.

Skeel, P. J., and Hurd, J., concur.

(Decided December 15, 1952.)

On Application for rehearing.

Per Curiam.

Plaintiff has filed an application for rehearing, with brief, in which he argues that there is a rebuttable presumption that Frances Lisitz was operating the automobile at the time of the accident in question with the consent of Klein, the owner. Bailey v. Weaver, 67 Ohio App., 259, 35 N. E. (2d), 1006.

In the instant ease, as in the Bailey case, the rebut-table presumption was completely overcome by substantial evidence to the contrary. Through his deposition, Klein, the owner, testified, inter alia, that he was out of town at the time the accident occurred, that he did not go to the scene of the accident, and that he did not talk to any policemen investigating the accident. He testified further that he never authorized Prances Lisitz to operate his automobile.

The plaintiff repeats arguments previously presented that the testimony of the policemen, given in connection with their investigation of the accident after it had occurred, was not hearsay and was competent as admissions against interest both against the owner, Klein, and the substituted defendant insurance company. We believe this proposition was fully covered in the opinion filed herein on November 24, 1952.

To repeat, it is our view that inasmuch as Klein was not a party defendant, having been dismissed from the action by plaintiff prior to taking a default judgment against Prances Lisitz, the operator of the automobile, the statements of the policemen were not competent as admissions against interest either as against Klein or the defendant insurance company.

Por the reasons stated, we adhere to the decision heretofore entered herein, and the application for rehearing is denied.

Application denied.

Skeel, P. J., and Hurd, J., concur.

Kovachy, J., not participating.


author: Doyle, J.

text:
    Smith, Appellant, v. Frank R. Schoner, Inc., Appellee.
    (No. 4325
    Decided January 14, 1953.)

      Messrs. Meade, Weygandt é Leonard, for appellant.

      Messrs. Wise, Roetsel, Maxon, Kelly & Andress, for appellee.
   Doyle, J.

This action was brought by Russell F. Smith in the Municipal Court of the city of Akron to recover a money judgment against Frank R. Schoner, Inc., a licensed real estate broker. It was asserted that the claimant was a licensed real estate salesman associated with Schoner, Inc., and that he was entitled to a part of the commission paid to Schoner, Inc., for negotiating the sale of a parcel of real estate. The trial court, without the intervention of a jury, in consideration of the evidence, entered judgment for the defendant. An appeal from this final-order brings the case to this court for review.

In our appraisal of the case before us, we must look first to the statutes regulating real estate brokers and real estate salesmen.

Section 6373-26, General Code, provides:

“No person, partnership, association, or corporation shall act as a real estate broker or as a real estate salesman, or advertise or assume to act as such, without first being licensed so to do as provided in this act.”

Section 6373-25, General Code, in part provides:

( ( # # #

“The term ‘real estate salesman’ shall mean and include any person associated with a licensed real estate broker to do or to deal in any act, acts, or transactions set out or comprehended by the definition of a real estate broker as set forth in this act, for compensation or otherwise.”

Section 6373-48, General Code, provides:

“No right of action shall accrue to any person, partnership, association or corporation for the collection of compensation for the performance of the acts mentioned in Section 6373-25 of the General Code without alleging and proving that such person, partnership, association or corporation was duly licensed as a real estate broker or a real estate salesman, as the case may be, at the time the cause of action arose.”

Keeping before us the above statutes, we next look to the evidence and find that the following conclusions may be reasonably drawn therefrom:

In the year 1949, the plaintiff (appellant here) became associated with the defendant, a licensed real estate broker. He possessed a real estate salesman’s license and was entitled to the privileges appertaining thereto, due to his association with the defendant broker. (The statute defining a real estate salesman [Section 6373-25, General Code, supra] requires an “association” with a licensed real estate broker.) The plaintiff, prior to May, 1950, while associated with the defendant, contacted a Mrs. Hibbard and secured from her an “open” listing agreement for the sale of her property for $16,000. Circa May 1, 1950, the plaintiff first showed the property to a Mr. and Mrs. Bacon (the eventual purchasers), who discussed with him the problems of financing a purchase, as well as the adaptability of the property to a structural change. No agreement was made as to price, nor was a definite offer to purchase made. Subsequently, on May 15, because of disagreement between the defendant and this plaintiff over the subject matter of the Bacon transaction, the plaintiff was dismissed from his employment with the defendant, and his “association” with the broker was terminated. On the following day, May 16, 1950, Mr. Frank Schoner, president of the defendant company, was called to the office of an attorney representing the Bacons, where an offer was made to pay $13,650 for the property. This was the first definite offer of the Bacons to pay a definite price for the property. The offer was accepted by the owners, and a contract of sale was thereupon executed and the sale price set at $13,650. At a later date the price was paid and the property was transferred.

The appellant poses the following quaere:

“Can a real estate broker, under the laws of Ohio, employ a salesman who is licensed under the broker, and then discharge the salesman and cancel his license, thereby depriving the salesman of his rights to commissions on prospective transactions on which the salesman had worked before his discharge and which ripened into completed deals after the discharge?”

The authorities generally agree, we think, that, before a real estate salesman or a broker is entitled .to a commission, he must bring the buyer and the seller to an agreement. This implies the meeting of the minds of the parties, produced by the agency of the salesman or broker. In other words, a salesman or a broker, employed by a landowner to effect the sale of his property, has earned his commission when he produces a purchaser ready, willing and able to buy upon the terms prescribed by the landowner. See: Gilder, Chairman, v. Davis, 137 N. Y., 504, 33 N. E., 599, 20 L. R. A., 398, and cases therein cited; Dentin v. Gonsowski, 138 Conn., 43, 82 A. (2d), 157; and 6 Ohio Jurisprudence, Brokers, Section 38, et seq.

The disputed facts in the case before us would reasonably justify a “trier of the facts” to reach the conclusion that the salesman’s efforts fell short of bringing the parties to an agreement within the above rules at the time of his dismissal from the service of his broker.

It seems obvious, from the statute defining the term “real estate salesman,” that one who is not “associated” with a licensed broker, even though holding an uncancelled license, is not such a duly licensed “real estate salesman” as to entitle him to a commission for the sale of property resulting from an agreement between the buyer and seller to buy on the seller’s terms, arrived at subsequent to the dismissal of the salesman from the association or employment of the broker; at least, where there is no showing of fraud or bad faith, or some similar element indicating that the discharge of the salesman was a mere device to cheat the salesman out of his commission.

In the instant case the cause of action accrued on May 16 (the date that the purchaser agreed to buy on the seller’s terms). On May 15th (the date of dismissal) the salesman became no longer a “duly licensed * * * real estate salesman,” and as a result “no right of action ’ ’ could accrue thereafter for him under the limitations contained in Section 6373-48, General Code, supra.

In our opinion, the trial court was justified in finding for the defendant under authority of the statutes.

There are cases which hold that, where a principal has the right to terminate the authority of an agent at any time, such principal may not do so in bad faith and as a device to escape the payment of a broker’s commission.

“Thus, if in the midst of negotiations instituted by the broker, and which were plainly and evidently approaching success, the seller should revoke the authority of the broker, with the view of concluding the bargain without his aid, and avoiding the payment of commissions about to be earned, it might well be said that the due performance of his obligation by the broker was purposely prevented by the principal. But if the latter acts in good faith; not seeking to escape the payment of commissions, but moved fairly by a view of his own interest; he has the absolute right before a bargain is made while negotiations remain unsuccessful, before commissions are earned, to revoke the broker’s authority, and the latter cannot thereafter claim compensation for a sale made by the principal, even though it be to a customer with whom the broker unsuccessfully negotiated, and even though, to some extent, the seller might justly be said to have availed himself of the fruits of the broker’s labor.” Sibbald v. Bethlehem Iron Co., 83 N. Y., 378, at pp. 384-385, 38 Am. Rep., 441.

In other words, parties are not allowed to cheat ■their licensed salesmen by discharging them after a sale has been effected through their agency, and at the same time gather the fruits of their labor.

However, in the case before us, the trial court could properly have found that the action of the broker was not a device to escape the payment of a commission. When he, within his powers, discharged the salesman, a sale had not been effected by the salesman (there had been no offer to buy on the seller’s terms), and the trial court would have been justified in finding that no bad faith attended his dismissal.

It is our conclusion that the judgment under review is neither contrary to law nor manifestly against the weight of the evidence. We find no error prejudicial to the rights of the appellant. This being our conclusion, this judgment will be affirmed.

Judgment affirmed.

Hunsicker, P. J., and Stevens, J., concur.


author: Matthews, J.

text:
    Lester, Appellee, v. Albers Super Markets, Inc., Appellant.
    (No. 7638
    Decided November 17, 1952.)

      Mr. Paul A. Holdt and Mr. Harvey A. Schultz, for appellee.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, Mr. Henry B. Street and Mr. Douglas G. Cole, for appellant.
   Matthews, J.

In her amended petition, the plaintiff alleged two causes of action, one for false imprisonment, and the other for slander. In submitting the case to the jury, the court withdrew the cause for slander from the consideration of the jury on the ground that there was no evidence of all the essential elements of that cause of action. The issues raised by the pleadings as to the cause of action for false imprisonment were submitted to the jury, resulting in a verdict for the plaintiff for $800, upon which judgment was rendered. It is from that judgment that this appeal is taken.

The defendant, appellant herein, assigns as errors the giving of certain special charges requested by the plaintiff and the refusal to give a* charge requested by it, error in the general charge, error in sustaining the motion of the plaintiff to strike certain allegations alleged as an affirmative defense, and error in overruling its motions for an instructed verdict and for judgment.

In view of the conclusion we have reached that the court erred in overruling the defendant’s motions for an instructed verdict and for judgment, we find it unnecessary to pass upon the other assignment. In reaching our conclusion, we have confined ourselves to an analysis of the plaintiff’s testimony alone.

The incident which the plaintiff characterizes as a false imprisonment took place in the defendant’s store, called a “Super Market,” of which she had been a patron for several years, visiting it to make purchases as frequently as twice a week. She was thoroughly familiar with the premises and the system of operation of the store. She saw the signs that were posted to indicate the entrance and exit. She knew that the merchandise was toward the rear of the store, that customers served themselves and after obtaining what they wanted, carried or hauled their purchases by means of carts toward the front, passing through aisles or lanes where their purchases were checked by an attendant and paid for, and that in the process all bags carried by the customer were inspected and their contents checked. There was a notice posted that all bags and packages would be checked, and the plaintiff was aware of the notice and the practice.

It is clear that she had on many prior occasions gone through the process and would have done so without protest on the occasion in question had she not been in a hurry, as will appear later.

On this occasion the plaintiff had gone to another store where she had bought some rolls which she had in a small bag within a paper marketing bag of the usual kind with handles for convenience in carrying. When she left the other store she took a bus or streetcar and obtained a transfer with which she intended to board another bus or streetcar in front of defendant’s store. While waiting for the other bus or streetcar she noticed a can of “cocktail fruit” in the window of defendant’s store and concluded to buy a can, entering the store for that purpose. She obtained the can and then, as she stated, “started to the line, through the line, — to cash it out, to pay for it. Well, the line — I was watching for my streetcar outside, I can see it coming from the window. Finally I was in two lines. The first line was too long, then I stepped over to the next line, then finding I could not get waited on, I sat the can of cocktail fruit on the table and turned to go out, turned from the checking line which was there just few feet from the checking line and then I — then the manager he came to me.”

She was asked to tell what happened after she left the second check-out line, to which she responded: “Right there from the check-out line I saw I didn’t have time to go back there and put the fruit, the can where I had gotten it so then I sat it on the bread stand and turned to go out. I got in the middle of the floor, not very far from the checking line when the manager said to me ‘ That bag will have to be searched ’ I told him, I smiled, I said to him ‘I haven’t bought anything in the store today. There is your goods on the counter.’ He stopped and he looked. He says ‘Lady that bag will have to be searched’ with a nasty rough voice. — Then he says to me again — I said: ‘Well, I haven’t time to have my bag searched.’ I told him I was on the transfer, my car was out there. He said: ‘Lady, that bag will have to be searched.’ With that I said: ‘I haven’t time to have my bag searched, my car was out there.’ He said to me this last time, he said ‘Lady, the bag will have to be searched. ’

“Well, I didn’t know what to do. He was still standing there. He is right in front of me all the time, right in front of me. I couldn’t get around. He said: ‘Lady, that bag will have to be searched.’ I said: ‘Well, all right, go ahead and search it.’ ”

Thereupon, the bag was searched, the contents removed, nothing was found that belonged to the defendant, the contents were returned to the bag and she was told: “Everything is all right now. You may go.” She then passed through the checking line and left the store.

The plaintiff testified also that there were many customers in the store at the time, and that the incident attracted the attention of several, to her embarrassment.

The plaintiff was asked whether anyone placed a hand upon her and she said no one touched her. She said that she was in the store about 15 minutes. Other witnesses called by her said the incident did not last more than five minutes. She also said there were other exits and neither she nor any other witness testified that the defendant ordered her to stay or refused to allow her to leave.

The authority of a private citizen to make an arrest was discussed at the bar. That subject is irrelevant to this inquiry. Nothing was said or done indicating that the defendant was assuming to exercise any such authority. It thought its private right of property was being violated, which it was resisting. It was not assuming to vindicate any public right. The plaintiff was not, accused of any crime. Nothing was done to indicate that she was being taken into' custody, or that she was being held for delivery to á peace officer to answer a criminal charge. Under such circumstances there is no basis for the suggestion that this is a false imprisonment, initiated by a false arrest. In 3 Ohio Jurisprudence, 128, Section 2, it is said, “nor is there any arrest where a person is forcibly seized without pretense of taking him into legal custody.” Much less is there basis for a charge of arrest where no force of any sort is used. In 6 Corpus Juris Secundum, 571, it is said: “To constitute an arrest there must be an intent to arrest, under a real or pretended authority, accompanied by a seizure or detention of the person which is so understood by the person arrested.”

As we view the record, it raises the fundamental question of what is imprisonment. Before any need for a determination of illegality arises there must be proof of imprisonment.

In 35 Corpus Juris Secundum, 512, 513, Section 11, it is said: “ * * * submission to the mere verbal direction of another, unaccompanied by force or by threats of any character, cannot constitute a false imprisonment, and there is no false imprisonment where an employer interviewing an employee declines to terminate the interview if no force or threat of force is used, and false imprisonment may not be predicated on a person’s unfounded belief that he was restrained.”

Many cases are cited in support of the text. We indicate the facts of a few. In Sweeny v. F. W. Woolworth Co., 247 Mass., 277, 142 N. E., 50, 31 A. L. R., 311, the manager of a store accused a boy of larceny, and on the manager’s demand the boy turned 1 pockets inside out under a threat that if he did not ao so an officer would be called to arrest him. Notwithstanding the boy’s testimony that the manager would not let him leave the store which the court said was a mere conclusion of fact without evidence of any action of the manager upon which to base it, the court held that the trial court should have sustained the defendant’s motion for an instructed verdict, saying: “There were no words or conduct which could have induced a reasonable apprehension by the plaintiff, notwithstanding his tender years, that he could not leave the defendant’s premises without interference if and when he desired to do so.”

In Great Atlantic & Pacific Tea Co. v. Billups, 253 Ky., 126, 69 S. W. (2d), 5, a customer was falsely charged with not paying for a bar of candy after she had left the store and was proceeding along the street. Except for the place it occurred and the fact that the customer paid again rather than go back to the store to continue the inquiry, the facts are very similar to the facts in the case at bar. Speaking of the conduct of the manager, the court at page 130 said: “There is nothing in his conduct or words indicating an intention on his part to take Mrs. Billups into his custody, or to subject her to his control, or reasonably calculated to lead Mrs. Billups to believe that she was deprived of her liberty or placed under restraint.” The court held that the jury should have been instructed to return a verdict for defendant. See, also, Weller v. Herzfeld-Phillipson Co., 189 Wis., 554, 208 N. W., 599.

In Fenn v. Kroger Grocery & Baking Co. (Missouri), 209 S. W., 885, the court said:

“A case was not made out for false arrest. The plaintiff said she was intercepted as she started to leave the store; that Mr. Krause stood where she could not pass him in going out. She does not say that he made any attempt to intercept her. She says he escorted her back to the desk, that he asked her to let him see the change * * *. She does not say that she went unwillingly * * *. Evidence is wholly lacking to show that she was detained by force or threats. It was probably a disagreeable experience, a humiliating one to her, but she came out victorious and was allowed to go when she desired with the assurance of Mr. Krauss that it was all right. The demurrer to the evidence on both counts was properly sustained. ’ ’

The result of the cases is epitomized in 22 American Jurisprudence, 368, Section 24, as follows:

‘ ‘ A customer or patron who apparently has not paid for what he has received may be detained for a reasonable time to investigate the circumstances, but upon payment of the demand, he has the unqualified right to leave the premises without restraint, so far as the proprietor is concerned, and it is false imprisonment for a private individual to detain one for an unreasonable time, or under unreasonable circumstances, for the purpose of investigating a dispute over the payment of a bill alleged to be owed by the person detained for cash services.”

The defendant’s answer included a general denial and also what is described as a second defense which was that if plaintiff had been detained, such detention did not exceed five minutes and was no longer than a reasonable time within which to investigate the plaintiff’s conduct. The court, on plaintiff’s motion, struck these allegations from the answer. We are of the opinion that the court did not err in so doing, for the reason that if time became material it was a part of the plaintiff’s case upon which she had the burden of proving that the time consumed was unreasonable. No burden rested upon the defendant.

Defendant’s counsel urge error in that the court failed to qualify the restraint that would constitute false imprisonment by the adjective, “unlawful,” or, “illegal.” The court used the qualifying phrase, ‘ ‘ against her will, ’ ’ and it is asserted that any restraint of one private person'by another is unlawful or illegal, and, therefore, the expressions have the same meaning. We are not prepared to concur with plaintiff in this position, but in view'of our conclusion that in no true legal sense could the plaintiff be said to have been either unlawfully restrained or restrained against her will, it becomes unnecessary to decide the point.

For these reasons, the judgment is reversed and final judgment entered for the defendant.

Judgment reversed.

Hildebrant, P. J., and Matthews, J., concur.


author: Wiseman, P. J.

text:
    Wise, Appellant, v. The Great Atlantic & Pacific Tea Co., Appellee.
    (No. 4855
    Decided February 27, 1953.)

      Mr. Dale D. Rapp and Mr. Joseph H. Carpenter, for appellant.

      Messrs. Wright, Earlor, Purpus, Morris é Arnold, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court sustaining a demurrer to plaintiff’s petition, and, plaintiff electing not to plead further, dismissing the action. The sole assignment of error is that the court erred in sustaining the demurrer.

Plaintiff alleged that the defendant company, in connection with its store, maintained a parking lot on adjoining premises, the surface of which was blacktopped. Plaintiff alleged that on the day in question she was a patron in the store and after having made some purchases was crossing the parking lot when she slipped and fell on ice, causing her injuries. The plaintiff complains that the defendant was negligent in permitting the ice to accumulate and remain on such parking lot for an unreasonable period of time; that the defendant had knowledge of such accumulation and that it created an existing hazard for defendant’s patrons, but, nevertheless, permitted such hazard to exist; and that the defendant knew that the plaintiff in leaving its store had to walk upon such ice but failed to warn the plaintiff of the dangerous and hazardous condition.

The trial court relied on Turoff v. Richman, 76 Ohio App., 83, 61 N. E. (2d), 486. In that case the facts are set forth in the opinion, beginning on page 84, as follows:

“At the time of the fall the driveway was covered with snow. It had been snowing for a week or more and on the night before the accident about two inches of snow had fallen. The plaintiff claims that under the newly fallen snow the driveway was covered with ice.

“The defendants had not cleaned the ice and snow from the driveway and automobile traffic had packed it down, in driving to and from the garages. The plaintiff had used the driveway in going to and from her rear entrance at least once every day for at least a week preceding the day of the accident. Upon trial the jury returned a verdict for the plaintiff.

“There is no claim in this ease that there was any defect in the construction of the driveway or that it was maintained in a dang’erous condition, except as to such dangers as were created by the natural accumulation of ice and snow.

“It is the claim of the plaintiff that the defendants were negligent in failing to remove from the driveway the ice and snow that had aeeumlated there from natural causes and that such negligence on their part was the proximate cause of her injuries.”

On page 86, ibid., the court said:

“Should there be a different rule applied to the owner of private property where such owner by operation of law or because of contractual obligations is under the legal duty to maintain his property in a reasonably safe condition for the benefit of others lawfully upon the property? We think not. In cases where there is no act on the part of the landlord creating a greater danger than was brought about by natural causes, the dangers that are created by the elements, such as forming of ice and the falling of snow, are universally known and, unless the landlord has contracted to provide against these dangers, all persons on his property must assume the burden of protecting themselves therefrom. ’ ’

The court held that the defendant should have been given judgment on the pleadings, that defendant’s motion for directed verdict should have been sustained, and that defendant’s motion for judgment notwithstanding the verdict should have been sustained.

In the case at bar, there is no claim that there was any defect in the parking lot or that it was maintained in a dangerous condition, except as to such dangers as were created by the natural accumulation of snow and ice. The demurrer was properly sustained.

For a contrary view see Evans v. Sears, Roebuck & Co. (Missouri), 104 S. W. (2d), 1035.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Matthews, P. J.

text:
    Securities, Inc., Appellee, v. The Louisville & Nashville Rd. Co., Appellant.
    (No. 7603
    Decided February 9, 1953.)

      Mr. Lee B. Kasson, Jr., for appellee.

      Mr. Frank F. Dinsmore and Mr. Harris K. Weston, for appellant.
   Matthews, P. J.

The plaintiff, appellee herein, Securities, Inc., having obtained a judgment against Owen F. McG-arr in the Municipal Court of Cincinnati, instituted proceedings in aid of execution, in which the defendant, appellant, Louisville & Nashville Railroad Company was served with garnishment process. Upon the answer of the garnishee that it owed McG-arr $43.87, which was not exempt, but that McGarr had filed a voluntary petition in bankruptcy and had been adjudged a bankrupt, the court ordered it to pay into court the amount held by it. Upon the failure of Louisville & Nashville Railroad Company to comply with the order, this action was filed against it under favor of Section 11851, General Code, to recover judgment for the amount held. The court rendered judgment for the plaintiff. This appeal is from that judgment.

The parties entered into a stipulation of facts, which was filed by leave of court and, by separate entry, was directed to be filed with the papers in the case at the same time that the judgment was entered. We assume that this procedure complies with Section 11571, General Code.

We learn from the stipulation of facts that the order of garnishment was served on the defendant on February 21, 1952, and that on February 26, 1952, it answered the order, stating that it was holding wages amounting to $43.87 belonging to McGarr, which were not exempt.

It is specifically agreed that the judgment debtor (MeGarr) was insolvent on February 21, 1952, and presumptively continued to be insolvent, and that on February 25, 1952, he filed a voluntary petition In bankruptcy in the United States District Court for the Eastern District of Kentucky, Covington Division, and was adjudicated a bankrupt on the same day.

At the hearing in the Municipal Court on the order of garnishment, which took place on March 5, 1952, the Louisville & Nashville Railroad Company, the garnishee, reported to the court that McGarr, the judgment debtor, had .filed a petition in bankruptcy and been adjudged a bankrupt. As a result of the hearing, the court ordered the Louisville & Nashville Railroad Company to pay the money held by it into court. This order was served on the garnishee on March 6, 1952. On the same day, the United States District Court :n the bankruptcy proceeding instituted by McGarr, made an order directing the Louisville & Nashville Railroad Company to hold all wages dne McGarr on February 25,1952, which included the wages which the Municipal Court had ordered it to pay into the Municipal Court. This order of the United States District Court was served on the Louisville & Nashville Railroad Company and on Securities, Inc., on March 8, 1952, before ■ the Louisville & Nashville Railroad Company had complied with the order of the Municipal Court. Thereupon, the Louisville & Nashville Railroad Company declined to pay over the money as ordered by the M unicipal Court, and this action was instituted against it by Securities, Inc., to recover the amount.

It is evident that this case presents a conflict of jurisdiction between the agencies of government of the United States and the state of Ohio. As the Constitution of the United States confers power upon Congress to enact uniform laws upon the subject of bankruptcy, and as the defendant invokes that law as its justification for refusal to comply with the order of the state court, it is manifest that any conflict of jurisdiction must be resolved in favor of the paramount law of Congress.

By the first paragraph of Section 107, Title 11, U. S. Code (Section 67 of the National Bankruptcy Act), Congress enacted:

“Every lien against the property of a person obtained by attachment, judgment, levy, or other legal or equitable process or proceedings within four months before the filing of a petition initiating a proceeding under this act by or against such person shall be deemed null and void (a) if at the time when such lien was obtained such person was insolvent or (b) if such lien was sought and permitted in fraud of the provisions of this act.”

The section contains many other provisions, none of which are deemed to have any relevancy to the issue in this case.

It would seem clear that in the absence of fraud as provided in the (b) alternative, the concurrence of two, and only two, conditions brings into operation the nullifying provisions of this section. The first condition is that the lien must have been obtained within four months “before the filing” of the petition in bankruptcy, and, second, the bankrupt must have been insolvent when such lien was obtained.

Applying the clear language of this section to the admitted facts in this case, the conclusion is inescapable that any lien acquired by the garnishment process was nullified.

The section has been uniformly so construed and applied to many different situations since the enactment in 1898 of the present Bankruptcy Act. In Armour Packing Co. v. Wynn, 119 Ga., 683, 46 S. E., 865, it was sustained as a defense to an action by a judgment creditor of the bankrupt’s debtor, who, within four months of the filing of the petition in bankruptcy, had garnisheed the bankrupt’s wages.

In Petty, Trustee, v. Wilkins, 129 Ark., 364, 196 S. W., 453, the petition in bankruptcy was filed while the state court action and garnishment were pending. Later, judgment was entered and the garnishee paid it. In an action by the trustee in bankruptcy, the court held that the payment to the bankrupt’s judgment creditor was no defense.

In Chicago, Burlington & Quincy Rd. Co. v. Hall, 229 U. S., 511, 57 L. Ed., 1306, 33 S. Ct., 885, the court held that the jurisdiction of the bankruptcy court superseded that of the state courts in actions pending at the time of filing of the petition in bankruptcy both as to property that was exempt as well as nonexempt property and, therefore, held void the lien acquired by the garnishment and required the garnishee to pay the amount to the bankrupt to whom it had been set off as exempt, notwithstanding it had already paid the amount to the bankrupt’s judgment creditor in accordance with the order of the state court.

We do not understand that it is seriously contended that a lien obtained by judicial process against an insolvent debtor within four months of the filing of a petition in bankruptcy by or against the debtor can stand against the nullifying provisions of Section 67 of the Bankruptcy Act.

While liens obtained by legal proceedings after the filing of the petition in bankruptcy are not nullified by Section 67, it is said:

“They are subject to nullification upon the ground that the property was in the custody of the bankruptcy court and beyond the power process of another court to impose a lien.” 6 American Jurisprudence, 1164, Section 1027.

The real contention in the ease at bar appears to be that the proceeding in the Municipal Court had progressed to the point where the lien had ceased to exist and that as the nullifying provision applies only to liens, the nonexistence of a lien renders the section inapplicable. But this contention disregards the facts as stipulated. Assuming, but not deciding, that the order of the Municipal Court directing the garnishee to pay in the $43.87 might have the effect of transferring title to the fund, that order was not made until March 5, 1952, 11 days after the bankruptcy petition was filed and the adjudication in bankruptcy was entered, of which the Municipal Court was advised at the time it made the order. At that time the lien created by the filing of the bankruptcy had attached.

In 6 American Jurisprudence, 1052, Section 852, it is said:

‘ ‘ The trustee takes the status of a lien creditor as of the time when the petition in bankruptcy was filed. ’ ’

In Neyer, Trustee, v. Reuben H. Donnelly Corp., 78 Ohio App., 216, 69 N. E. (2d), 435, this court was required to determine the relative rights of a trustee in bankruptcy and a judgment creditor of the bankrupt who had a levy upon a Dodge truck at the time the petition in bankruptcy was filed, which the execution officer sold thereafter, paying the proceeds to the judgment creditor. We think the syllabus, which we quote, fully discloses the purport of our decision:

‘ ‘ 1. Money in the hands of a sheriff realized from a sale of personal property on an execution to satisfy a personal judgment at the time a voluntary petition in bankruptcy is filed by the judgment debtor does not belong to the judgment creditor, but is in the custody of the law and the claim of the judgment creditor cannot be perfected by its payment to him thereafter.

‘ ‘ 2. The power to consummate inchoate rights ceases upon the filing of a petition in bankruptcy. ’ ’

Our decision was in accord with this statement in 6 American Jurisprudence, 1164, Section 1028:

“Even where the proceeds of the sale have been paid over to the execution .creditor, the bankruptcy court can compel their surrender if the sale was made after the filing of the petition in bankruptcy. ’ ’

We are advised that the Municipal Court followed an unreported opinion of the Court of Common Pleas in the case of Stacey v. Damels, affirmed without opinion by the judges of another appellate district, sitting by designation in the Court of Appeals of this district. As no opinion was delivered by the Court of Appeals, we have no way of knowing the ground upon which the affirmance was based. We would not be justified in assuming that, the affirmance was based on the same considerations that controlled the Court of Common Pleas.

For these reasons, the judgment of the Municipal Court of Cincinnati is reversed, and the cause is remanded with instructions to render judgment for the defendant, appellant.

Judgment reversed.

Ross and Hildebrant, JJ., concur.


author: Hornbeck, P. J.

text:
    Hudson, Appellee, v. Bennett et al., Appellants.
    (No. 4749
    Decided October 7, 1952.)

      Messrs. Coughlin, Ogier & Lloyd, for appellee.

      Mr. Collis Cundy Lane, for appellants.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of the plaintiff, against the defendant and in the sum of $1,265.99.

Plaintiff alleges that on the 10th day of June 1949 plaintiff’s wife was driving his Chrysler sedan in a northerly direction on Olentangy River Road at or near premises described in the petition, which were in the possession and control of defendant Capitol Motor Car Company. It is further averred that on said date the defendant company had on its premises, whereon was being conducted an automobile auction, a certain 1949 Chevrolet convertible automobile belonging to and in the control of snch defendant; that “at the southerly part of said premises a private driveway or passageway runs from the premises to the said Olen-tangy River Road, and that at said point the said Olentangy River Road is lower than the said premises, and that the said driveway or passageway has a sharp decline from said premises to the said Olentangy River Road. ’ ’

It is further averred that while plaintiff’s wife was operating his automobile in a northerly direction on Olentangy River Road and as she approached the premises of defendant company, at the point where the driveway from the premises runs to Olentangy River Road, the Chevrolet convertible ran wild, without a driver, down the private driveway and with force and violence crashed into plaintiff’s automobile causing the damage of which complaint is made.

After certain formal admissions and an admission that a collision occurred on the date alleged in the petition between a certain 1949 Chevrolet automobile and a 1949 Chysler automobile resulting in some damage, the defendant company denies generally the allegations of the amended petition.

Plaintiff offered testimony from which it appeared that the defendant company owned and operated an automobile auction to which dealers consigned cars for sale. The cars were sold at public auction in a building, being moved thereto from a parking lot owned and controlled by defendant company.

On the day of the accident, Russell Regula, an automobile dealer of Dover, Ohio, had brought a 1949 Chevrolet convertible to the auction to be sold. By the rules controlling the sales, the car was required to be delivered to the defendant company by 11 a. m. on the morning of the sale, and it was so delivered. It was the practice of the defendant company when a car was delivered to it for sale to give the consignor a receipt for the car, place a number upon the car and move it to and park it in the parking lot. The charge for consigning an automobile to the auction was $10 if the car was sold. If it did not sell a refund of $5 was made to the consignor. On the date in question about 150 cars had been placed for sale, and there were from 100 to 200 prospective purchasers on the sales lot. It was the practice of the defendant company to place a consigned car, number it, apply the brakes, leave it in gear and leave the keys in the car. Prospective purchasers were accorded the privilege of examining the cars, starting the motors, and driving the cars. The auction on the day involved started between 1 and 1:30 p. m. and was in progress when the damage to plaintiff’s car occurred.

At the conclusion of plaintiff’s case in chief, defendant company moved for a directed verdict, which motion was overruled, and elected to offer no testimony in its behalf, whereupon the court charged the jury and submitted the cause upon the theory that the res ipsa loquitur rule applied. The jury returned a verdict for the plaintiff, a motion for new trial was overruled, judgment was entered on the verdict, and a motion for judgment non obstante veredicto was overruled.

There are five errors assigned, all of which but one are directed to the question whether the facts pleaded and developed at the trial justified the submission of the evidence to the jury to determine the negligence of the defendant by applying the res ipsa loquitur rule. The other error assigned is that, if the doctrine was applicable, the charge was not correct.

Specifically, it is the claim of defendants that the plaintiff is not entitled to invoke the rule of res ipsa loquitur because it does not appear that the agency, i. e., the automobile which struck plaintiff’s car, was, at the time of the collision, in the exclusive control of defendant company. Defendant company cites in support of its position Soltz v. Colony Recreation Center, 151 Ohio St., 503, 87 N. E. (2d), 167; Sherlock v. Strouss-Hirshberg Co., 132 Ohio St., 35, 4 N. E. (2d), 912; Farina v. First National Bank, 72 Ohio App., 109, 51 N. E. (2d), 36, 169 A. L. R., 1341; Glaze v. Cleveland, 56 Ohio Law Abs., 414; City of Cleveland v. Amato, 123 Ohio St., 575, 176 N. E., 227; City of Cleveland v. Pine, 123 Ohio St., 578, 176 N. E., 229, 74 A. L. R., 1224; Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St., 119, 73 N. E. (2d), 498; Feinberg v. Hotel Olmsted Co., 152 Ohio St., 417, 89 N. E. (2d), 569.

From the facts in this case it is obvious that the collision would not have occurred had ordinary care been employed- in the handling of the Chevrolet automobile. It was placed on an incline,, where unless held by its brakes an automobile would have rolled down the incline onto a driveway which might reasonably have conducted it to the public thoroughfare where plaintiff’s wife was driving his automobile.

The testimony discloses that it was the practice of the defendant company through its employees to apply the brakes and leave a car in gear when parked, but it is not testified that this was done at the time that the Chevrolet was parked. It appears also that this Chevrolet was somewhat unusual and attracted many observers, but it does not appear that any one got into the car, that the motor was started, or that the car was driven. It is the reasonable inference that the sole cause of the collision was the inadequacy of the brakes or the failure to properly apply the brakes of the Chevrolet. But it is said that, inasmuch as any prospective purchaser had the right to inspect the car and drive it if desired, it may not be concluded that the defendant company was in exclusive control. We doubt if it may be inferred that some person other than the employees of defendant company actually operated the car at any particular time after it was parked for sale. However, it is evident that, if any one inspected the car, operated it, released its brakes, • or drove it, such act or acts were contemplated by and with the acquiescence and consent of defendant com-. pany which had the sole right to control such use. Therein, it seems to us, is found the difference between the instant case and the one case which is somewhat disturbing as to the propriety of applying the res ipsa loquitur rule, Sherlock v. Strouss-Hirshberg Co., supra. In that case, a sewing stool or footstool, which was the property of defendant storekeeper and held for sale, had been placed in the aisle of the store of defendant company and plaintiff stumbled over it and fell. The court held that an inference could not be drawn that the defendant store, its employees or servants placed the stool in the aisle. It would not reasonably appear that the store anticipated or had reason to anticipate that a customer would remove the stool from its place on a shelf, put it in an aisle and leave it there.

In the instant case, it might be inferred that the defendant company in permitting prospective purchasers to inspect and drive a car should anticipate that they might not apply the brakes at all when leaving the car or might not apply them effectively. The fact that it was the practice of the defendant company to not only apply the brakes to the car but leave it in gear is convincing that it realized that it was necessary to use every precaution to hold the car when parked on the incline.

One of the principal reasons for the application of the res ipsa loquitur rule is that the proof of the cause of the injury is more accessible to the person against whom the rule is applied than it is to the other party. See St. Marys Gas Co. v. Brodbeck, Admr., 114 Ohio St., 423, 151 N. E., 323. That case illustrates the reason for the doctrine.

In the instant case, plaintiff’s wife was moving along on a public thoroughfare when suddenly, with-, out any warning, an automobile with no driver crashed into the side of the car she was driving. She was utterly without fault and entirely unable to determine the specific cause of the collision. The defendant company which last had the possession and control of the driverless auto was in the better position to explain and account for the occurrence. But it is suggested that the defendant company could not know because there were 100 or 150 prospective purchasers, any one of whom, conceivably, might have caused the condition which brought about the accident. However, the defendant company knew of this possibility and had the opportunity (and it is inferable that such was its obligation) to take all reasonable steps to prevent such an occurrence as caused the collision. Although the company, no doubt, did not know who failed to properly brake the car, it had the means at hand of making sure that such braking or other safety measure would be taken, and it was its obligation to exercise care commensurate with the danger. At the time the Chevrolet left its place at the parking lot, in all probability it was unoccupied because it was without a driver when it struck plaintiff’s car. Who then had control of the car when at rest and as it left the parking lot? The most logical conclusion is that the defendant company had such exclusive control.

It is our judgment that the facts developed in this case warranted the application of the res ipsa loquitur rule, and that the court committed no error in charging on it and in holding against the defendant company on its motions for a new trial and for a directed verdict.

We have examined the charge of the court in the partieular in which it is challenged and do not find that the claim of such error is well made.

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Conn, J.

text:
    Roper, Appellee, v. The No-Leak Roofing & Paint Co., Appellant.
    (No. 4675
    Decided January 12, 1953.)

      Messrs. Boggs, Boggs & Boggs, for appellee.

      Mr. Jules J. Pilliod, for appellant.
   Conn, J.

Plaintiff, appellee herein, has moved to dismiss defendant’s appeal on questions of law and fact for the reason that this is an action at law and not one brought primarily for equitable relief, and, further, has moved that the appeal be dismissed in its entirety for the reason that defendant has failed to file its brief and assignments of error within the time fixed by the rules of court.

In the amended petition, plaintiff set forth three causes of action. In the first cause, plaintiff pleaded that he was employed by defendant on October 16,1948, as general manager at a salary of $100 per week and, in addition, a bonus of 10 per cent on gross profit, and, also, for services as a salesman, plaintiff was to receive 10 per cent of his gross sales, and compensation of five cents per mile for the use of his automobile.

Plaintiff averred that he received his weekly salary but that defendant has refused to pay the other sums due him under his contract from the date of his employment to January 1, 1949.

For his second cause of action, plaintiff set forth the specific amounts due on gross profit and sales from January 1,1949, to October 17,1949, and compensation for use of plaintiff’s automobile. In the third cause of action, plaintiff sought to recover damages for breach of the contract of employment.

The answer of defendant contains six defenses in addition to a general denial. Defendant admitted that plaintiff entered the employ of defendant at a salary of $100. per week and that the weekly salary has been paid, and averred that plaintiff received operating expenses for his automobile.

The gist of defendant’s answer is a denial of the contract upon which plaintiff sought a recovery. By supplemental answer, defendant averred that plaintiff has waived any claim against defendant and is estopped from asserting any further claims.

Plaintiff prayed judgment for the respective amounts alleged to be due him on each of the three causes of action and for an accounting as to amounts due on the first and second causes of action as set forth in his amended petition.

It is apparent from the pleadings that the primary-issue between the parties relates to the provisions of the contract of employment, what it embraced by way of compensation to plaintiff, and the length of the term of employment. It appears further that the primary relief sought by plaintiff was a money judgment for services alleged to have been rendered and for which he has not been paid. The third cause of action for damages for breach of contract was dismissed by plaintiff during the trial.

At the opening of the trial in the Common Pleas Court it was stipulated that the issue as to the nature and character of the contract be submitted to a jury and that following its determination, the issue of accounting be submitted to the court. The jury returned a special verdict in favor of plaintiff, and the court thereafter made a finding by way of an accounting of the amount due plaintiff for commissions and for use by plaintiff of his automobile and entered a judgment for the amount found to be due.

Whether a given action is one in chancery or at law has vexed the courts of Ohio for many years. Numerous eases illustrate the problem. These cases illustrate also the application of the rule that the character of the action is determined from the issues raised by the pleadings and the relief sought. 2 Ohio Jurisprudence, 99, Section 38, and cases cited.

However, where the issues thus raised and the relief sought partake of the character of both law and equity, the rule appears to be that the primary or paramount issue is the determining factor. Where the primary issue is legal, the action is one at law; where such issue is equitable, the action is one in chancery. Ireland v. Cheney, 129 Ohio St., 527, 196 N. E., 267; Nordin v. Coulton, 142 Ohio St., 277, 51 N. E. (2d), 717; Meyer v. Meyer, 153 Ohio St., 408, 91 N. E. (2d), 892.

It has been held in a number of cases that an action for the recovery of a money judgment wherein plaintiff also seeks an accounting is not changed from one in law to one in equity by the fact that the amount due is not known to plaintiff and is known to defendant. Brundridge v. Goodlove, 30 Ohio St., 374; Chapman v. Lee, 45 Ohio St., 356, 13 N. E., 736; Complete Bldg. Show Co. v. Albertson, 99 Ohio St., 11, 121 N. E., 817; Wall v. Dayton Federation Co., 121 Ohio St., 334, 168 N. E., 847; Borton v. Earhart, 144 Ohio St., 334, 59 N. E. (2d), 37; O’Leary, Exrx., v. Burnett, 87 Ohio App., 70, 87 N. E. (2d), 897.

In view of the issues raised on the amended petition and the prayer for relief, it is clear that the issue of an accounting was incidental to the primary issue of plaintiff’s right to recover on the contract as pleaded by him and denied by defendant. On the issues thus raised, it is apparent that the principal relief sought was for money alleged to be due plaintiff.

Plaintiff’s right to an accounting did not arise until the special verdict of the jury was returned finding that plaintiff was entitled to recover a money judgment from defendant.

The defendant claims that a fiduciary relationship existed between the parties, and for that reason the instant case is distinguishable from the cases relied on by plaintiff. It is well settled that equity will take jurisdiction in an action for an accounting between parties sustaining a fiduciary relation to each other. 1 Ohio Jurisprudence, 210, Section 29. However, on the pleadings and the issues raised in this case, the parties sustain to each other the relationship of debtor and creditor, and the authorities relied on by defendant are inapplicable.

As already pointed out, plaintiff’s right to an accounting arose and became necessary in order to determine the amount due him on his contract. It is, therefore, ancilliary and incidental merely. In view of these considerations, the right to an accounting, or the necessity for it, does not convert this case into an action in equity.

We conclude that the motion to dismiss this appeal on questions of law and fact should be sustained, and that the appeal itself should not be dismissed but retained as an appeal on questions of law pursuant to Sections 12223-22 and 11564, General Code. Inasmuch as a transcript of the testimony has been taken and filed upon this appeal as a bill of exceptions, leave is granted defendant to refile same instanter. Leave is granted defendant also to file assignments of error and its brief on or before January 26, 1953.

Judgment accordingly.

Fess and Savobd, JJ., concur.