author: Ross, J.

text:
    The Globe Indemnity Co., Appellant, v. Schmitt, Appellee.
    (No. 6509
    Decided April 23, 1945.)

      Messrs. Pogue, Ilelmholz, Culbertson & French, for appellant.

      Mr. Robert C. McIntosh, for appellee.
   Ross, J.

The plaintiff had executed a policy of casualty insurance to The John Shillito Company. By reason of the alleged negligence of an independent contractor employed by the insured, a pedestrian using the sidewalk extending along the place of business of the insured was injured. The plaintiff settled with such pedestrian for her claim against insured. This action was brought to recoup from such independent contractor, the defendant, the amount so paid by the insurer plaintiff.

The trial was to a jury.

The plaintiff requested a special verdict. The request was granted and the verdict was proposed to the jury in the form of a questionnaire. This method is approved in Dowd-Feder Co. v. Schreyer, 124 Ohio St., 504, 179 N. E., 411.

Motions were made both by plaintiff and defendant for judgment upon the special verdict and a motion for a new trial was filed by the plaintiff, appellant herein. The trial court overruled both motions for judgment on the verdict and refrained from passing upon the motion for new trial, which still, as far as the record before this court shows, remains undisposed of.

The plaintiff appeals upon questions of law from the refusal of the trial court to render judgment upon the verdict.

Motion to dismiss this appeal has been filed by the defendant, appellee herein, on the ground that there is no final order from which such appeal may be taken ■ and, therefore, the court has no jurisdiction to entertain the same.

The appeal requires this court to examine the proceedings therein. If the special verdict was regular and complete and the plaintiff was entitled by law to judgment, and this was improperly refused by the trial court, this court would be required to render the judgment which the trial court should have rendered.

Thus being required to examine the record to see whether the plaintiff has been refused a final judgment to which it is entitled, it cannot be said that this court has no jurisdiction to entertain this appeal, filed for the purpose of making such an examination.

The situation of the plaintiff is much the same as where its motion for an instructed verdict is overruled. Such refusal of the trial court to enter judgment upon a motion for an instructed verdict or motion non obstante has been held to be a final order offering a predicate for an appeal from such refusal. Hocking Valley Mining Co. v. Hunter, 130 Ohio St., 333, 199 N. E., 184; Cincinnati Goodwill Industries v. Neuerman, 130 Ohio St., 334, 199 N. E., 178; Michigan-Ohio-Indiana Coal Assn. v. Nigh, Admx., 131 Ohio St., 405, 3 N. E. (2d), 355; Hubbuch v. City of Springfield, 131 Ohio St., 413, 3 N. E. (2d), 359; Murphy v. Pittsburgh Plate Glass Co., 132 Ohio St., 68, 4 N. E. (2d), 983; Durbin v. Humphrey Co., 133 Ohio St., 367, 14 N. E. (2d), 5.

The motion to dismiss the appeal is therefore overruled.

Coming now to the question of whether the plaintiff has been refused a final judgment to which it is by law entitled, the provisions of Section 11599, General Code, are determinative of this question. This section provides :

“When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court orders the case to be reserved for future argument or consideration immediately after the time for the filing of a motion for a new trial if it has not been filed. When a motion for a new trial is filed, then such judgment shall be entered only when the court has sustained such verdict by overruling the motion. Upon such overruling it shall immediately be entered.” .

It is apparent that the judgment for plaintiff which it demands'upon the verdict can “only” be entered after the trial court has “sustained such verdict by overruling the motion” for a new trial. This court cannot do what the trial court was not required to do. It can render only the judgment which the trial court should have rendered. The trial court was not only not required to render the judgment requested, but it had no power under the provisions of Section 11599, General Code, to render such judgment upon the verdict until it had not only passed upon the motion for new trial, but had overruled such motion. Boedker v. Warren E. Richards Co., 124 Ohio St., 12, 176 N. E., 660.

The motion for judgment was therefore premature, for the trial court could not pass upon that motion for judgment until it had passed upon the motion for new trial and overruled it.

In Wagner v. Long, 133 Ohio St., 41, 11 N. E. (2d), 247, at page 49 of the opinion it is stated:

“Appellant contends that the trial court’s refusal to render judgment on the verdict deprived him of a substantial right. This contention presupposes that a new trial has been denied. We hold to the contrary. A new trial having been granted, there reposed no duty upon the trial court to render judgment on the verdict which was vacated.”

Thus viewing the situation, the judgment of the trial court in refusing the motions is sustained, since they were premature and could not be acted upon until after its disposal of the motion for new trial in favor of the verdict.

The judgment is affirmed.

Judgment affirmed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus,, opinion and judgment.


source: Caselaw Access Project

author:
      Hornbeck, P. J.
      By the Court.

license: Public Domain

text:
    In re Estate of Decker: Evatt, Tax Commr., Appellant, v. Decker et al., Appellees.
    (No. 431
    Decided May 7, 1945.)

      Mr. Hugh S. Jenkins, attorney general, Mr. Parker L. Snycler and Mr. Joseph F. Ford, for appellant.

      Messrs. Estabrook, Finn & McKee, for appellees.
   Hornbeck, P. J.

This is an appeal which proceeds as upon questions of law from an order of the Probate Court, Miami county, dismissing a supplemental application of the appellant to redetermine inheritance tax.

The record in this court is confined to a transcript of docket and journal entries from the Probate Court of Miami county, which transcript begins' under date of May 24, 1944, with a supplemental application for redetermination of inheritance tax and certain files in the matter of the estates of Valentine Decker, deceased, and Walter J. Decker, deceased. On June 29, 1944, appellees moved to dismiss the supplemental application and thereafter filed a substitute motion to dismiss the supplemental application for the reason that the court has no jurisdiction of the cause. The court sustained the motion.

The supplemental application “moves the court for an order to determine inheritance tax on certain transfers of property made by Valentine Decker prior to death and which were not included or considered by the court in its entry determining inheritance tax on the 12th of November, 1937.”

Such application recites that the “decedent sometime prior to his death which was July 23,1937, transferred 492 shares of stock” of a total of 500 shares “of the Val Decker Packing Co. to his four sons, * * * each receiving 123 shares”; that such transferred shares were of the approximate value of $1,000 at the time of the death of Valentine Decker; “that under the will of Valentine Decker the four sons were named executors, and that when the application to determine inheritance tax was filed they wilfully neglected to include under the schedule prescribed for transfers the above noted shares of stock which was contrary to the provisions of Sections 5345-4 and 5345-5 of the General Code.”

The application concludes by stating that the Tax Commissioner moves “for an order to determine inheritance tax on the 492 shares of stock of the Val Decker Packing Co. transferred to his four sons equally, prior to death; and for a twenty-five per cent penalty against said sons, as executors * * *.”

Testimony was taken upon the hearing on the motion but it is not made the subject of a bill of exceptions or otherwise brought to our attention on the record.

Two errors are assigned:

1. The Probate Court erred in holding that it did not have jurisdiction in this cause.

2. The decision of the Probate Court is contrary to law.

It appears that Valentine Decker died testate on July 23,1937, a resident of Miami county, Ohio, leaving four sons surviving who under the will shared equally in his estate. These four sons were named executors by his will, qualified as such, administered and settled his estate. They were appointed on November 11, 1937.

The executors, in filing their application to determine inheritance tax, set out, under schedule A of the application, an itemized statement of the property owned by the decedent at his death and listed debts and costs of administration.

Under schedule C there were set forth the names and addresses of the beneficiaries under the will, their interests, the value thereof and their relationship to decedent.

Under schedule D of the application, which is headed “Transfers During Lifetime of Decedent,” the application was left blank.

On November 12, 1937, the court determined the amount of tax to be paid by each of the beneficiaries under the will including the four sons of testator. This order and copies of the application were forwarded to the Department of Taxation on November 12,1937, which waived its right to file exceptions thereto within sixty days.

Walter J. Decker, one of the sons of Valentine Decker and one of the executors of his estate, died on September ft, 1941, and tax on the successions to his estate was fixed. It appears from the briefs that airother son, Louis F. Decker, and a co-executor, died in 1943 and his estate is being administered in the Probate Court of Miami county.

It is urged in the brief of appellant that he first learned in October, 1942, of the inter vivos transfers from Valentine Decker to Ms sons, during the preparation of the case for the hearing on exceptions to the determination of the tax in the estate of Walter J. Decker. This becomes immaterial in the light of the action of the court here under consideration and,. if material, is not properly before us.

It is the claim of the appellant that the Probate Court had inherent jurisdiction to entertain the supplemental application to fix the inheritance tax on the successions to the sons of Valentine Decker and should have considered and decided whether a tax should be levied.

■ It is the claim of appellees:

First, that no fraud appears on the part of the .executors. This claim must be restricted to the record and the inferences to be drawn therefrom and precludes consideration of many aspects of the case developed and discussed by counsel in their briefs and in oral argument.

- Second, that the Probate Court has no power or jurisdiction to open up the question of the determination of the inheritance tax in this estate except that which is expressly granted by statute; that recourse is restricted to Section 11576 or to Section 11631, General Code, if the order heretofore made as to the inheritance tax is to be opened up, modified or vacated; and that these statutes afford no procedural right to the appellant.

Third, that the Tax Commission failed to avail itself of Section 5346, General Code, which provides in part that it “may file exceptions thereto [the determination of taxes] in writing with the Probate Court within sixty days from'the entry of the order * *

We approach the determination of the question presented with some trepidation for the reason that we .reach our conclusion upon a somewhat different theory from that advanced by counsel for either party or by the trial judge, all of whom have given careful and painstaking attention to the law of the case.

It should be noted at the outset, that the order in this case was invoked by a motion directed to the one question, viz., the jurisdiction of the court to act upon the supplemental application for a determination of the inheritance tax. This fact, in our judgment, precludes any consideration of the question of laches or any statute of limitation because these defenses are inconsistent with the claim of lack of jurisdiction. There is grave doubt whether they could be set up if this proceeding reaches the place where it would be heard on its merits. A well recognized rule relating to the immunity of the state against defenses ordinarily available against an individual is set out in State v. Nagle, Exr., 100 Kan., 495, 164 P., 1073, L. R. A. 1917E, 1160, in the second paragraph of the syllabus:

“Rule followed that no inaction, procrastination of delay on the part of public officers will prevent the state from recovering its due, nor bar the state’s right thereto.”

We find no specific provision in the inheritance tax chapter of the Code for the opening up of the Valen-tine Decker estate at this late day to determine whether further succession taxes are due. Decision of the matter of inheritance taxes has been made in a formal order which, upon the face of the record at least, is valid and final.

The supplemental application for redetermination of the inheritance tax makes no charge that the transfers of the shares of stock by Valentine Decker to his four sons were in contemplation of death or without full consideration therefor. The tax is levied upon the succession to property passing by deed without valuable consideration substantially equivalent in money or money’s worth to the full value of the property:

“(a) In contemplation of the death of the grantor, * * * or
“(b) Intended to take effect in possession or enjoyment at or after such death.” Section 5332, General Code.

It is not averred that the wilful neglect of the executors to fill out schedule D of the application to fix inheritance tax was a fraud practiced by them as executors to procure the order which omitted determination of succession tax upon the transfers made to them as individuals, sons of Valentine Decker.

We are committed by Abicht, Exr., v. O’Donnell, 52 Ohio App., 513, 3 N. E. (2d), 993, to the proposition that the Probate Court has inherent equity jurisdiction to set aside its orders or judgments even after term upon proper showing. The language of Section 5340, General Code, vesting the Probate Court with power under the Inheritance Tax Act is broad. It provides that the court “shall have jurisdiction to hear and determine the questions arising under the provisions of this subdivision of this chapter, and to do any act in relation thereto authorized by law to be done by a Probate Court in other matters or proceedings coming within its jurisdiction # * *. Such jurisdiction shall •exist not only with respect to successions in which the jurisdiction of snch court would otherwise be invoked, but shall extend to all cases covered by this act, to the end that succession inter vivos, taxable under the provisions of this subdivision of this chapter, may be reached thereby.”

If the Probate Court is remanded to the statutory authority for opening up, vacating, or modifying judgments it may not proceed in this case.

Section 11576, General Code, relates to the granting of a motion for new trial which may not be invoked because the motion could not be filed either within three days succeeding the order determining the tax in the estate, or under Section 11580, General Code, which filing must be máde not later than the second term after discovery nor more than one year after final judgment rendered. Further, Section 11580, General Code, requires the proceedings thereunder to be instituted by petition.

Section 11631, General Code, may not be invoked because it is not alleged that fraud has been practiced by the successful party in obtaining the order and this section likewise contemplates that any action which could be given effect here should be instituted by petition.

We then test the application in this proceeding and the files in the administration of the Decker estates to determine whether the trial court had jurisdiction to decide whether succession tax should be levied on the shares of the stock which were transferred to the sons of Valentine Decker.

Apparently it is the view of the appellant that the court has the same authority here to proceed as it would upon original application and that nothing more is necessary to invoke that jurisdiction. We do not accede to this view.

“And we do not forget that a judgment, until reversed, must be deemed valid, because it is the sentehee of the law on the record of the facts (3 Blackstone Com., 395), and, therefore, it is immaterial whether the facts lie true or false.” Martin, J., in Darst v. Phillips, 41 Ohio St., 514.

The order here differs from that under consideration in In re Estate of Maxhimer, 139 Ohio St., 444, 40 N. E. (2d), 941, where the court had assessed inheritance taxes by a temporary order, the remaining amount of taxes thereafter accruing because of the happening of a contingency creating other successions. Sections 5336 and 5343, General Code.

A.The basis for the supplemental application to determine the inheritance tax is that the four sons, as fexecutors, “wilfully neglected to include, under schedule D of the application for determination of inheritance tax, the transfers of the shares of stock to the sons contrary to G. C. 5345-4 and 5345-5.”

Section 5345-4, General Code, provides:

“The executor, administrator or such other person or corporation as may be in possession of property, fhe succession to which is subject to inheritance taxes under this subdivision of this chapter, shall, within one year of the decedent’s death, file with the Probate Court having jurisdiction, an application, in the form •prescribed by the Tax Commission of Ohio, to determine the inheritance tax upon- the decedent’s estate. Upon the failure of the executor, administrator or other-person or corporation to file such application within one year of the decedent’s death, the Tax Commission of Ohio shall have authority to execute and file an application for the determination of inheritance taxes in such estate, which application when so executed and filed shall be prima facie good and sufficient for all purposes and the tax shall be forthwith determined thereon by tbe probate judge. Tbe time for filing tbe application may be extended by the Tax Commission not to exceed six months.”

Tbe executors did file within time with tbe Probate Court an application upon tbe form prescribed by tbe Tax Commission of Ohio, whether in conformity thereto is hereinafter discussed.

Section 5345-5, General Code, provides in part:

“In case a false or fraudulent notice or application is wilfully made, tbe probate judge shall add twenty-five per centum to tbe amount of tbe tax. * * *”

It is sought to add tbe penalty of 25 per cent here but it will be noted that tbe application does not set out tbe requisite to tbe imposition of tbe tax, namely, that tbe executors wilfully made a false or fraudulent application.

Section 5345-4, General Code, by implication, authorizes tbe Tax Commission to prescribe a form for an application to determine inheritance tax and tbe form which tbe executors of tbe Valentine Decker estate employed is that which was prescribed by the Tax Coim mission.

"What effect may be attributed to tbe wilful neglect of tbe executors to include, under schedule D of the application form, tbe transfers of tbe corporate stock to tbe sons of Valentine Decker?

Tbe application sets out tbe assets, personal and real, owned by tbe decedent at bis death, and tbe persons to whom and the proportions in which tbe real estate vested. Tbe signed application further sets out:

“Tbe decedent in bis lifetime did not convey, distribute, sell or give away any property for less than a consideration in money’s worth, except as set forth in schedule D herein. (All transfers must be set forth in schedule D whether or not tbe transfer is admitted to have been made in contemplation of death or intended to take effect at death.)”

' The appellant contends that all transfers made by the decedent during his lifetime should have been set forth in schedule D. It is required to set forth in schedule D any property which was conveyed, distributed, sold or given away in the lifetime of decedent for less than full consideration. It is probable. that only such transfers are properly included in the report.

The prime interest of the commission in the information set forth in schedule D, was to learn if any property had been conveyed in the lifetime of decedent for less than full consideration, and, if so, when. If full consideration has passed, or full money’s worth has been paid for the transfer, what more is there to be said. If transactions are properly noted in the schedule, that is to say, transfers without full consideration, then the commission (commissioner) does not call upon the applicant to state whether such transfers were made in contemplation of death or to take effect at death. If transfers were listed in schedule D other than those in which there was not a full consideration passing, it would be misleading.

What may be inferred from the charge in the application that the executors wilfully failed to complete schedule D? Certainly it may not be assumed, that if all transfers made by decedent in his lifetime were set forth, any of them was made without full consideration or in contemplation of death. Unless this may be assumed the application, if to accomplish the purpose intended, should set forth that if schedule D had been Completed it would have disclosed that the transfers now questioned were made without full consideration and in contemplation of death, or that •such was the fact. In the failure to set forth these material operative facts is found the infirmity of the application.

If this estate upon which the inheritance tax has been fixed by order is to be opened up, there must be brought to the attention of the Probate Court sufficient averments to require the exercise of its inherent power to open up an order after term. Such authority may be invoked independent of the specific provisions of statute upon proper averments and proof. In Howenstine, Admr., v. Sweet, 13 C. C., 239, 7. C. D., 498, it is said:

“The Court of Common Pleas is a court of general jurisdiction, and, independent of the provisions of Sec. 5354 Rev. Stat., has power to vacate and set aside judgments procured by fraud, in an original action for that purpose.
“The special proceeding provided by Sec. 5354 et seq., Rev. Stat., is cumulative merely, and does not in any way abridge or limit the right in an original action to impeach and annul a judgment for fraud.”

Although the Probate Court has no general jurisdiction, we believe that, because of the broad powers delegated to it in inheritance tax determination, it has jurisdiction in this special proceeding tantamount to that vested in the Common Pleas Court generally.

In the last cited case the court had released and discharged from liability sureties on original executor’s or administrator’s bond and approved a new bond which was procured by fraud. The jurisdiction of the court was challenged but the court points out that the petition, setting out in detail the facts alleged as constituting a fraud by which a judgment was procured and showing that a fraud was in fact successfully practiced, with a prayer that the judgment so procured be' vacated and set aside, was good as against general demurrer. To like effect is Darst v. Phillips, supra.

The distinguishing difference between the last cited cases and the situation presented in the instant proceeding is that here, all that is set out in the application as constituting wilful neglect on the part of the executors may be conceded and we do not have any averment which, first, would invoke the inherent power of the court to open up its former order, namely, fraud in procuring the order and, second, no averment that any succession tax should be levied because the transfers to the sons were made without consideration and in contemplation of death.

(No. 431

Decided May 29, 1945.)

The inherent jurisdiction of the Probate Court which we have conceded for the purposes of this proceeding is that which is granted where it is incumbent upon the court to determine if a tax is to be levied and if so, to take the essential steps to complete the levy of the tax. It has no other or further jurisdiction in this relationship. The basis upon which it would have power to exercise its authority is not brought to its attention in the application for the reasons which we have heretofore stated.

We recognize that the application might not stand as against a demurrer, on the ground that it does not state a cause of action but that it might be good as against the claim that the court had no jurisdiction to entertain it. However, we are of opinion that on the application here presented' the trial judge was correct in concluding that he had no jurisdiction to entertain it. The order will be affirmed.

Order affirmed.

Geiger and Miller, JJ., concur.

On Application for rehearing.

By the Court.

This matter is submitted on application for rehearing consisting of three, branches.

All the questions presented on the application for rehearing were directly or inferentially considered and determined in our original opinion.

It is suggested that counsel is in doubt if the judgment of this court and remand to the trial court would permit an amendment of the application. This would not -be permissible because the appeal was on questions of law from an order dismissing the application. In such an appeal, amendment of pleadings may not be made in the reviewing court. Whether or not the application may be amended by the trial court upon remand is not raised on this appeal.

• The application will be denied.

Application denied.

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


text:
    Kut, Appellee, v. Albers Super Markets, Inc., et al., Appellees; Bureau of Unemployment Compensation et al., Appellants.
    (No. 6495
    Decided June 4, 1945.)

      Messrs. Paxton & Seasongood, for appellee Max Kut.

      Mr. Hugh 8. Jenkins and Mr. John M. Woy, for appellants.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, reversing a decision of the board of review of the Bureau of Unemployment Compensation, denying the plaintiff unemployment compensation.

The facts admitted by plaintiff are:

Max Kut was employed by Albers Super Markets, Inc., in June 1943, as an order clerk with the understanding that he would be advanced to a higher job within a reasonable time. He continued as an order clerk until about November 15, 1943, at which time he was assigned to duty as a “checker” but without receiving the pay of a regular “checker.” After receiving repeated promises that he would receive the wages of a regular checker, he was finally put on the pay roll at such higher rate, but the union objected on the ground that he was being promoted in advance of other employees who had acquired more seniority. Since the only work that Albers Super Markets, Inc., had to offer was that of order clerk, at which he had started, the employer assumed that this would not be satisfactory to Kut and gave him his release, thus terminating his employment on March 7,1944.

Kut is an orthodox Jew who has always followed the traditional tenets of his religious faith, one of which precludes working from sundown Friday to sundown Saturday. This period constitutes his Sabbath during which time labor is prohibited. While employed by Albers Super Markets, Inc., Kut had arranged to be off on his Sabbath and in lieu thereof worked Sunday afternoon and evening.

Kut was out of employment for about four weeks. On March 9,1944, he was given a referral by the United States Employment Service to the Bardes Range and Foundry Company as a shipping clerk. Kut accepted this employment, but when the company learned that he could not work on Saturday, they refused to employ him. He was then given a referral to The H. J. Heinz Company as a shipping clerk, but this company also refused to hire him unless he was willing to work on Saturday. Except for his Sabbath, Kut was available for work at all other times of the week, both day and night. He remained unemployed until April 4, 1944, when he obtained a job with George H. Thomas, where he was not required to work on his Sabbath.

On or about March 24, 1944, Kut received a “notice of ineligibility” stating that “facts available establish that.the claimant is not available for work on a Saturday. He is therefore not available for work within the meaning of Section 1345-6 a (4), General Code, and Paragraph 412 of the Rules and Regulations.”

On April 5, 1944, Kut filed an appeal from the determination of the administrator and a hearing was held before Edwin J. Hayes, a referee for the Ohio Bureau of Unemployment Compensation. The referee handed down his decision on May 4, 1944, holding that regulation 412 required Kut to be available for work each day of the week, including his traditional Sabbath, and that since he was not so available he was ineligible for benefits. The referee further held that this regulation did not violate any statutory or constitutional rights of the claimant.

On May 9, Kut made application for permission to institute a further appeal before the board of review. His application was allowed and the appeal heard on June 21, 1944.

The board of review denied the plaintiff’s application for unemployment compensation. Such order was made in conformity with the following provisions of Section 1345-6, General Code:

“Each eligible individual shall receive benefits as compensation for loss of remuneration due to total or involuntary partial unemployment in the amounts and subject to the conditions stipulated in this act; but no benefits shall be paid for total or partial unemployment occurring prior to January 1, 1939.
“a. No individual shall be entitled to any benefits unless he or she # * #
“(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted * * Section 1345-13, General Code, provides:
“(a) In addition to all other duties imposed on the administrator and powers granted by the provisions of this act, the administrator shall have full power:
“ (1) To adopt and enforce reasonable rules and regulations relative to the exercise of his powers and authority * * -

Board Regulation No. 412 provides:

“Total disqualification. An individual may not receive credit for waiting period week or benefits for any week in which he was not physically or mentally able to work, or in which he was not available for work. This means that he must be available each day of such week. ’ ’

Paragraph m. of Section 1345-1, General Code, provides :

“ ‘Week’ means the calendar week ending at midnight Saturday unless an equivalent week of seven consecutive calendar days is prescribed by the administrator.”

That-section is a part of an act as it became effective, as amended, on September 28, 1943. The same act was amended on May 14, 1941, and, as amended, became effective October 1,1941 (119 Ohio Laws, 827). The language of paragraph “m” was as it is in the present act. Previous to that, in the acts passed on April 20,1939, and on May 31,1939, paragraph “m” read:

“m. ‘Week’ means such period'or periods of seven consecutive calendar days as the administrator may by regulations prescribe.”

Section 1345-5, General Code, provides:

“No agreement by an employee to pay any portion of the contribution or other payment required to be made by his employer under this act, shall be valid; and no employer shall make a deduction for such purposes from the remuneration or salary of any individual in his employ. But nothing in this act shall affect the validity of voluntary arrangements by which employees individually or collectively agree to make contributions for the purpose of securing benefits in addition to those provided by this act.”

Section 1345-2, General Code, provides:

“ (a) There is hereby created an unemployment compensation fund (hereinafter called the unemployment fund), to be administered by the state of Ohio, without liability on the part of the state beyond the amounts paid into the fund and earned by the fund. This unemployment fund shall consist of all contributions collected under this act, together with any interest thereon collected pursuant to this act, all fines and penalties collected pursuant to provisions of this act, all interest earned upon any moneys in the fund, any property or securities acquired through the use of moneys belonging to the fund, and all earnings of such property or securities. The unemployment fund shall be used to pay benefits and refunds as provided by this act and for no other purpose.”

Under such facts and the law, the question presented is whether an employee may collect unemployment compensation, when he refuses to accept employment on the sole ground that such employment requires him to work on Saturday and that the religion to which he adheres prohibits labor from “sundown Friday evening to sundown Saturday evening.”

It is necessary to dispose of one contention of the plaintiff at once. Reliance is placed upon the provisions of Section 13045, General Code, by plaintiff, his contention being that that section puts work on Saturday for‘those “persons who conscientiously observe the seventh day of the week as the Sabbath, and abstain thereon from doing things herein prohibited on Sunday,” in the same category as work on Sunday for other persons.

Such contention is untenable and that section in no way avails to aid in the disposition of the issue presented. In the first place it is evident that no person could be charged with any offense simply because he performed on Saturday any of the. acts forbidden on Sunday, regardless of his religious belief. Section 13044, General Code, and other sections in the chapter on Sabbath desecration define crimes and provide punishment for certain acts performed upon Sunday. Section 13045, General Code, provides simply that persons holding certain religious beliefs shall not be amenable to the punishment provided for other persons who perform forbidden acts on Sunday. Insofar as it does so, there is discrimination in favor of such persons holding such religious beliefs, and against those who do not hold such beliefs. The effect of those statutes is not to provide two days upon which labor is illegal. There is no reason why the plaintiff could not have accepted the proffered employment and still not have violated any law or statute. His sole reason was that his religious belief prevented his accepting such employment.

Plaintiff also places reliance upon Section 7, Article I of the Ohio Constitution. Let us examine the provisions of that section in the light of the facts herein involved.

Nothing in the refusal to grant compensation to the plaintiff can be considered in any way an interference with his right to worship in any manner he sees fit or any interference with his rights of conscience. If he wishes to attend his church on Saturday that is his right. No one is attempting to interfere with that constitutional privilege. But what the plaintiff is saying is that, “although my conscience will not permit me to work on Saturday, I should receive the same compensation as if it did not, and that if you refuse to give me such unemployment compensation, you are discriminating against me.” In passing it will be noted that the section of the Constitution referred to also provides, “and no preference shall be given, by law, to any religious society.” Only by the employment of inverse logic can the plaintiff claim discrimination in the refusal to grant him unemployment compensation.

If the judgment of the Court of Common Pleas be' sustained, certainly, there would be discrimination, but in favor of the plaintiff. All other persons except those holding conscientious scruples would be required to accept employment and would be barred from such compensation if they did not. Certainly, this could be nothing less than discrimination against them.

The predicament of the plaintiff is not overlooked. He is bound by his conscience to refuse work on Saturday. If work on that day is offered, he feels he must refuse it. If he accepts the work, he, of course, will not be entitled to unemployment compensation. If he refuses the work, then he has denied his availability for it and disqualified himself for compensation.

His solution is to refuse the work and still claim unemployment compensation. This he cannot do, for he has rendered himself not available.

Nothing in Section 1, Article SIY of the Constitution of the United States, requires that unemployment compensation be given to one who refuses for any reason to work upon any day of the week, not excluded by law as a day of labor.

For these reasons, the judgment of the Court of Common Pleas is reversed and the decision of the board of review is affirmed.

Judgment reversed.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the syllabus, opinion and judgment.


author: Stevens, J.

text:
    Pierce et al., Appellees, v. Cherry Valley Farms, Inc., Appellee; The Marion-Reserve Power Co., Appellant.
    (No. 181
    Decided June 1, 1945.)

      Messrs. Van Epp' é Laribee, for appellees C. A. Pierce and Stanley E. McFarren.

      Mr. Raymond B. Bennett, for appellee Cherry Yalley Farms, Inc.

      Messrs. Btrelits, Dowler é Wiedemann and Mr. Harold L. Williams, for appellant.
   Stevens, J.

This is an appeal on questions of law and fact.

The petition filed herein alleges that plaintiffs are the owners and in possession of certain real property in Medina county, Ohio, therein described; that the defendants claim an interest in a strip of land 60 feet in width, running approximately diagonally across said property and containing 4.54 acres; that said claims constitute a cloud upon plaintiffs’ title.

The prayer is that plaintiffs’ title be quieted as against any claim of defendants.

Defendant Cherry Valley Farms, Inc., filed an answer and cross-petition, but did not otherwise appear in the Court below or in this court.

Defendant The Marion-Reserve Power Company filed an answer and cross-petition.

In the first defense of the answer, after certain admissions, it denied generally the allegations of plaintiffs’ petition. For a second defense, said defendant alleged that it had purchased an easement over said 4.54-acre strip of land through plaintiffs’ property from one C. J. Mayers, receiver of the Cleveland-Southwestern Light & Power Company, on November 21, 1931, and further, that for more than 21 years before the time of taking possession under the above grant, it had been in “uninterrupted, actual, open, notorious, exclusive and adverse possession of the whole of said premises under a claim of ownership to the same by virtue of said purchase.” For a third defense, said defendant claims that it has openly, adversely and notoriously claimed title to an easement for pole lines, and that it and its predecessors in title have “openly, notoriously and adversely, for more than 21 years pri- or to the time of filing plaintiffs ’ petition herein, used same for electric transmission and distribution purposes * * *; and further that the plaintiffs herein and their predecessors in title had full knowledge thereof. ’ ’

By way of cross-petition, this defendant claims ownership of an easement in the 4.54 acres of property claimed by plaintiffs, and asks that title to its easement rights be quieted as against the claims of plaintiffs.

Plaintiffs, for reply, deny the allegations of defendants’ answers, and for answer to the cross-petition of defendant Power Company, deny generally the allegations thereof.

The transcript of the evidence, introduced in this court, shows the following:

On April 4, 1899, Martin E. Cole acquired the entire title to the real estate formerly owned by his mother, Semantha A. Cole, which included the 150-acre farm in question.

On October 25, 1902, the Cleveland & Southern Railway Company filed its petition in the Probate Court of Medina county, setting forth the necessity of appropriating certain lands of Martin E. Cole, as follows:

“Plaintiff avers that the said strip or parcel of land * * *, belonging to the defendant Martin E. Cole, was and is necessary and plaintiff’s directory has so declared such necessity for the purpose of building, constructing and erecting thereon its road bed, tracks, switches, poles and electrical equipment and of maintaining and operating thereon its main line of railway and for electric railway purposes. * * *
“Wherefore, plaintiff prays for the appropriation of the above-described real estate to its use for the purposes named and for electric railway purposes % * * J j

In pursuance of proceedings had under said petition, the court entered a judgment as follows:

“It is therefore ordered and adjudged that * * * said plaintiff corporation * * * shall be entitled to take possession of and hold and use the-property, rights and interests of the defendants, Martin E. Cole and Belva Cole, so appropriated, for the uses and purposes for which the appropriation was sought, as set forth in the petition. * * *
“It is therefore considered, ordered and adjudged by the court, that the plaintiff, The Cleveland & Southern Railway Company, be entitled to the possession of, and to hold, use and enjoy, the real estate, property and rights appropriated herein to the uses of plaintiff, as set forth in the petition * *

It is conceded that on June 22, 1931, by order of the United States District Court for the Northern District of Ohio, in equity action No. 3512, the abandonment, for electric railway purposes, of that portion of the railway right of way which includes the 4.54-acre strip in controversy, was approved.

Plaintiffs are the owners of the fee title to said farm under deeds which make no exception of an easement for railway or power and light purposes. In addition thereto, after the institution of this action, and before the entry of judgment herein, they purchased, at delinquent land sale, the entire title and interest of Cherry Valley Farms, Inc., in and to said 60-foot strip of land here under consideration.

The evidence shows that at all times up to June 22, 1931, the predecessors in title of defendant The Marion-Reserve Power Company occupied said 4.54-acre strip of land, under the easement acquired in condemnation proceedings, for electric railway purposes, and that pole lines and wires were erected for the transmission-of power for use in connection with the operation of said electric railway. The evidence also shows that some power was sold to private users, although such use was not within the easement acquired by condemnation.

Under the pronouncement of the Supreme Court of Ohio in Henry v. Columbus Depot Co., 135 Ohio St., 311, 20 N. E. (2d), 921, there can be no doubt that the railway ’ company, a gitasi-public corporation, through its condemnation proceeding, acquired only an easement for railway purposes over Cole’s lands; 'and, when the railway company abandoned its operation of the railway in 1931, the land reverted to the original owner or to those claiming under him, unless an additional easement over or title to said land had been acquired by prescription or by adverse possession.

It. is the claim of The Marion-Reserve Power Company that its predecessors in title, while occupying said right of way for railway purposes, enlarged the easement acquired through condemnation proceedings, by using said premises for the transmission of power which was sold to private users, and that such part of its occupancy of the premises was adverse, open and notorious, and that the owners of the reversionary interest knew of such user. It is therefore claimed that The Marion-Reserve Power Company, and its predecessors in title for more than 21 years, through such occupancy and adverse user of said strip, acquired an easement-to use it for power and light purposes.

It is the rule that “Where an easement is granted to be exercised within certain limits, and the grantee openly exercises a privilege in excess of the limit, continuously and without interruption for the requisite period, under claim of right, a second grant may be presumed, superadded to the first and covering the larger right. This rule, however, cannot apply where the use in excess of the grant was not under an adverse claim of right * # 28 Corpus Juris Secundum, Easements, Section 14 e.

It is apparent that, up to 1931, when the railway operation was abandoned, the maintenance of poles and wires on the land covered by the easement in question, was necessary to the operation of an electric railway; it is further apparent from the evidence that certain-electric energy was sold by the railway company and its successors to private users.

There is, however, in .our opinion, a dearth of evidence to show that Cole, or his successors in title up to 1931, knew that the railway company and its successors claimed a right to maintain a pole line over said property for the purpose of furnishing light and power, to private users, independent of the operation of an electric railway.

The increased burden imposed upon the land was surreptitious, and of such character as not to put the owner of the servient estate upon inquiry.

The user to all appearances was in accord with the grant.

A concealed increased burden upon a servient estate, cannot furnish the basis for acquisition of an easement by prescription, because it lacks some of the elements necessary to create an easement by prescription: viz., that it must be adverse, under claim of right, continuous and uninterruped, open and notorious, exclusive, with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period, while the owner of the servient tenement is under no legal disability to assert his rights, or to make a grant.

It is our opinion that neither The Marion-Reserve Power Company, nor its predecessors in title, acquired, by prescription, an easement to maintain a pole line and wires over the 4.54-acre strip in controversy, for the transmission of electric energy to be sold to private users for power and light.

It is further our opinion that The Reserve Power & Light Company, the immediate predecessor in title of The Marion-Reserve Power Company, acquired no easement for said purposes under the grant from the receiver in equity case No. 3512 in the federal District Court for the Northern District of Ohio, because at the time of said grant (November 20, 1931) the rights of The Cleveland-Southwestern Railway & Light Company to an easement for railway purposes had been abandoned, said company had no easement for any purpose, and the receiver could convey no more than his defunct company had — i. e., nothing.

The user up to 1931 was under the grant. Since then sufficient time has not elapsed to permit acquisition of an easement by prescription.

A decree may be prepared, granting to plaintiffs (appellees) the relief sought in their petition, and dismissing the cross-petitions of defendants (appellee and appellant), all at the costs of the appellant.

Decree accordingly.

Washburn, P. J., and Doyle, J., concur.


author: Morgan, J.

text:
    Geffine, Appellee, v. Thompson, Appellant.
    (No. 19989
    Decided February 26, 1945.)

      Mr. B. C. Boer, for appellee.

      Messrs. McAfee, Grossman, Hanning & Nexo comer, for appellant.
   Morgan, J.

The plaintiff, appellee herein, brought this action to eject the defendant, appellant herein, maintaining and operating on her land in the village of Westlake in this county, a pipe line for the transportation of gas. The defendant filed his cross-petition seeking to quiet his title and right to such pipe line against the claims of plaintiff, as contained in the petition. The case was tried on an agreed statement of facts and additional evidence. The trial court gave judgment to the plaintiff on her petition and also on the defendant’s cross-petition. From this judgment the defendant appeals.

Plaintiff’s predecessor in title, for a valuable consideration, granted in 1918 to The East Ohio Gas Company, its successors ancl assigns, “the right of way to lay, maintain, operate and remove a pipe line for the transportation of gas” over the land described in plaintiff’s petition. In addition, the grantee agreed to pay any damages which might he caused to crops and fences on the land “from the laying, maintaining, operating and removing said pipe line.”

The pipe line on plaintiff’s property, about 2,000 feet in length, was constructed along the northerly boundary of the land as a part of a longer pipe line to pipe gas from gas wells constructed in the neighborhood. Later The East Ohio Gas Company found'that no surplus gas was being produced beyond the demands of local consumers and the company in 1928 sold and assigned the pipe line on plaintiff’s premises and an additional 4,000 feet of pipe line on other lands to J. C^ Arthurs & Company, which company in turn in 1935xWd and assigned its pipe line to the defendant.

As gas wells became dry and were abandoned, other producing wells were attached to the line. At the present time the defendant is the owner of two nearby gas wells whose product is piped into the line for the use of 27 local customers, nearby property owners, who use the gas for cooking and heating. The total income to the defendant is less than $2 per day.

The plaintiff purchased the land described in the petition in 1925 and she objected to the maintenance and operation of the pipe line on her land for the first time in 1942. The part of the land where the pipe line is laid is not being farmed or used by the plaintiff.

The lower court by its judgment approved plaintiff’s contention that the easement granted to The East Ohio Gas Company in 1918 by plaintiff’s predecessor in title was not appurtenant to any land owned by The East Ohio Gas Company and accordingly was an easement in gross and therefore not assignable.

- That ruling is clearly contrary to the intention of the parties who executed the written easement which, as stated, ran “to. The East Ohio Gas Company, its successors and assigns.” The record contains nothing to support a claim that the intention of the parties should not be given effect on any ground of public policy.

In the case of Junction Rd. Co. v. Ruggles, 7 Ohio St., 1, the Supreme Court held that a railroad right of way is assignable. The court in its decision said:

“We return, then, to the question: Was this easement capable of transfer? The question seems to be one of first impression. At all events, no case is cited, and we can find none, in which the^point has been adjudicated * * *. A right of way appendant to a farm, is granted or reserved as being necessary or convenient for the occupancy and use of the farm, and is therefore transferable with the farm. A railroad is an entire thing; and the entire right of way for a railroad •is made up of a union of many rights derived from many individual owners; some by contracts, involving various duties and obligations, and others by appropriation, under a delegated right of eminent domain. Any one of them is appurtenant to all the remainder — necessary, to the enjoyment of all the remainder — and therefore from analogy to rights • of way appendant to real estate, alienable, we think, with the thing to which it is appurtenant.”

It is not our understanding that the Supreme Court in that case meant to hold that the assignability of a part of a railroad right of way is dependent on a sale and transfer of the entire right of way. If there is in the case any ambiguity on this point it was cleared up and resolved in the case of Garlick v. Pittsburgh & Western Ry. Co., 67 Ohio St., 223, 65 N. E., 896, when the Supreme Court held in the second paragraph of the syllabus:

“A railroad company organized under the laws of Ohio, may acquire title to lands within the state for railroad purposes * * * and when the right of way is thus acquired, and the company has constructed its railroad thereon * * * said company may sell an'd convey to another corporation for like railroad purposes all, or a part of the premises so acquired * *

In Boatman v. Lasley, 23 Ohio St., 614, the court held that a grant to one L, his heirs and assigns, of a ' right of way over the grantor’s land, was not assignable or inheritable. The court said (page 618):

“A mere naked right to pass and repass over the land of another, a use which excludes all participation in the profits of the land, is not, in any proper sense, an interest or estate in the land itself. Such a right is in its nature personal; it attaches itself to the person of him to whom it is granted, and must die with the person.”

The decision in Junction Rd. Co. v. Ruggles, supra, was not referred to in Boatman v. Lasley, supra, and it cannot be considered to have been overruled by the later decision. In fact the court in the former case recognized the existence of the general rule as later set forth in the latter case but said further:

“The subject matter of the question — a right of way for a railroad — is itself new; and the principles, long ago established, in regards to rights of way, personal or in gross, and rights of way appurtenant to real estate, have no direct application to this new class of rights of way. It, we apprehend, is sui generis, and must be governed by reasons peculiar to itself, and the lights which may he derived from the analogies it may bear to the old classes of easements of this kind, whose incidents have been already fixed and determined. ’ ’

Is the case we are now considering, involving a pipeline easement for the transportation of gas, controlled by the decision in Junction Rd. Co. v. Ruggles, supra, or by the holding in Boatman v. Lasley, supra? In our view there can be no doubt as to the correct answer to this question. The right to construct a pipe line on land tb transport gas is analogous to the right to construct a railroad track to transport passengers and freight and is not analagous to a right granted to an individual to pass and repass over the land.

In our view, therefore, the present case cannot be distinguished on principle from the case of Junction Rd. Co. v. Ruggles, supra, and is controlled by it.

The exact question in the present case was considered and passed on in the case of Standard Oil Co. v. Buchi, 72 N. J. Equity, 492, 66 A., 427. The New Jersey court decided in favor of the assignability of pipe-line easements.

There is an excellent article in 22 Michigan Law Review, 521, on “the assignability of casements in gross in American law” by Lewis M. Simes, now a professor of law in the University of Michigan. Professor Simes takes the position that there is no good reason why easements in gross should not be held to be 'assignable and the fact that the contrary view has been -taken in many American cases is due to a misunderstanding of certain statements of Blackstone and Kent. Grants for profits a prendre in gross are generally held to be assignable and no satisfactory reason has ever been given why a different rule should be applied to easements in gross. Professor Simes concludes his article with the following statement:

“Can we not say that, since any supposed rule making easements in gross inalienable is without adequate foundation in logic or history, its application should be strictly limited to private ways; and that in jurisdictions where the question is still an open one, these interests should bo freely assignable wherever it appears that the grantor did not restrict them to a designated person.”

The writer of this opinion is in accord with the views expressed in the above article by Professor Simes. However, as already stated, we prefer to rest our reversal of the judgment of the trial court in this case, on the authority of Junction Rd. Co. v. Ruggles, supra.

> The judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Skeel, P. J., and Lieghley, J., concur.


author: Hildebrant, P. J.

text:
    In re Estate of Hirsch: Kammeron et al., Appellants, v. Freiberg, Admr., Appellee.

      (No. 6496
    Decided April 23, 1945.)

      Mr. Joseph J. White, for appellant Edward Kammeron.

      Messrs. Bates, SIcirvin & Varnau, for appellant Eagle Savings & Loan Association.

      Mr. Leonard H. Freiberg, for appellee.
   Hildebrant, P. J.

The question presented by this record is as to the method of payment to creditors and distribution of funds in the hands of the ancillary administrator of a nonresident decedent’s estate, where such estate is insolvent, both in Missouri, the state of domiciliary administration, and in Ohio, the state of ancillary administration. The court below took the whole estate and the whole of the liabilities into account and ascertained the pro rata payment to creditors everywhere to be approximately 34 per cent and ordered the ancillary administrator to set aside 34 per cent of the funds in his hands for payment to Ohio creditors, according to the Ohio priority statute, the balance to be remitted to the domiciliary administrator.

Local creditors claim to be entitled to have all the Ohio funds applied to the payment of their duly proven claims, according to the Ohio priority statute.

In making its order, the court below followed the equitable doctrine so appealing to the conscience of the court and, in the absence of statute, widely adopted. This doctrine is expressed as follows in Restatement of Conflict of Laws, 607, Section 503:

“Where the entire -estate is insolvent, the court in which the administration proceedings are carried on will as far as possible marshal'the assets under its control in such a manner as to secure to all creditors a pro rata percentage of their claims.”

Again, in 18 Ohio Jurisprudence, 801, Section 813, it is stated:

“The general object of the ancillary administration is to administer the assets found within the state, and remit the proceeds to the parent administration, but, if there are home creditors, the courts having control of such ancillary administration will not allow the estate to be remitted to the foreign state until such creditors are first paid. Local creditors of a nonresident decedent whose estate is insolvent will not be forced to go into the domicil of the decedent to collect their demands, so long as there is property within the local jurisdiction which may be subjected to the payment of their debts. If the general estate is solvent they are paid in full; but if not, they are paid pro rata, taking the whole estate and the whole liabilities into account to ascertain such pro rata payment. Some old authorities, acting on the maxim that all foreigners are barbarians and enemies, required the home creditors to bo paid in full, if the assets within the state are sufficient, without regard to the solvency of the general estate. Such a principle is now hardly recognized as sound, or as comporting with the age, especially as between citizens of different states of a common union.”

And, it is set forth in 21 American Jurisprudence, 863, Section 878:

“Where an estate is insolvent, different rules apply in regard to the payment of claims. Where only the ancillary estate is insolvent, nonresident creditors should look to the principal estate for payment. But where both estates are insolvent, nonresident creditors may share in both, although apparently they will not be permitted to receive, in the aggregate, a larger per cent than resident creditors receive from the ancillary estate. Thus, under the rule applied in some jurisdictions, local creditors must be paid their pro rata to the full extent that other creditors will be paid out of the decedent’s estate before nonresident creditors are permitted to participate in the local assets. The true principle which should govern in all such cases is to marshal the assets under administration so as to produce equality among creditors, whether foreign or domestic. ’ ’

In re Estate of Kelley, 68 Ohio App., 51, 34 N. E. (2d), 34, is cited in support of the equitable doctrine, but, on examination, may be distinguished from the case at bar, as a contest between the domiciliary administrator and foreign creditors and Ohio distributees, rather than a determination of rights between creditors alone.

The statutes of Ohio, Section 10511-1 et seq., General Code, are determinative of the instant case.

Section 10511-12, General Code, provides:

“Except as is otherwise provided by law, the procedure in ancillary administration shall be the same as in administration of the estates of resident decedents.”

Section 10511-14, General Code, provides:

“Creditors having claims against such estate shall file them with the ancillary administrator within the time and in the manner provided by law as to estates of resident decedents.”

It will thus be seen that the Legislature of Ohio imposed the requirement of filing claims with the ancillary administrator as a condition precedent to sharing in the Ohio estate. No limitation as to residence is imposed. The same is true of, a domiciliary administrator in Ohio. No preference as to qualifying for payment is given to any one. It is urged upon the court that evidence of the insolvent condition of the estate was submitted to the court below, but obviously the submission of such evidence did not constitute a filing of claims, nor was it within the time contemplated by the Ohio statutes.

Section 10511-25, General Code, is:

• “When the expense of the ancillary administration, including such attorney’s fee as is allowed by the court, all public charges and taxes, and all claims of creditors presented as herein provided, have been paid, any residue of the personal estate, and the proceeds of any real estate sold for the payment of debts, shall be distributed by the ancillary administrator as follows:
“(a) With the approval of the court such residue may be. paid over and delivered to the domiciliary administrator or executor, or
“(b) If the court so orders, such residue shall be paid over and delivered to the persons entitled thereto.”

The above statute is clear, and in computing the residue, if any, as contemplated by the statute, payment of the claims duly presented appears as a 'condition precedent.

Further, the statute alters the rule of public policy based on equitable considerations alone and gives to the court a discretion in directing the payment of the residue, indicating clearly the intention of the Legislature to exercise control through the court.

The order of the court below will, therefore, be reversed and the cause remanded with instructions to proceed in accordance with law and this opinion.

Order reversed.

Hildebrant, P. J., Matthews-and Ross, JJ., concur ■in the syllabus, opinion and judgment.


author: By the Court.

text:
    In re Estate of Foureman.
    (No. 632
    Decided February 10, 1945.)

      Mr. Walter F. Rhynard, for appellant.

      Mr. T. A. Billingsley, for appellee.
   By the Court.

This matter had its inception in a proceeding in the Probate Court of Darke county, .wherein, on April 18, 1944, the'appellant, Howard L. Foureman, filed an application for administration and for citation to take or renounce administration of the estate of Lazarus Foureman, who died on the 25th day of March, 1925.

The application recites the names of the decedent’s widow and his children alleged to be next of kin.

We note tlie fact that this application was filed about ninteen years after the death of the decedent.

The evidence in the Probate Court, as disclosed by the bill of exceptions, largely related to certain tools evidently connected with the trade of a blacksmith and certain other tools and machinery connected with the operation of' a farm. The evidence disclosed an estimate of the value of such property to be in the neighborhood of approximately $500.

During the course of the trial it appeared that at the time of the filing of the application and citation there was pending in the Court of Common Pleas a suit which the Probate Court held involved the same property for which administration was sought, and during the discussion of the matter by the court as the same appears in the bill of exceptions, inquiry was made by the court whether, until the Common Pleas Court passes upon the title to the property, there was any need for an executor to be appointed. The court stated:

“In other words if an executor is appointed here it still will be a question for the Common Pleas Court to determine the title of this very property, and until the court passes upon it we will be unable to determine if there is any property. If it finds that there is still property belonging to the estate, then- would be the time to appoint someone to administer it, but until it is decided I think it would be premature here after all these years.”

The court stated that the proceedings can be continued until the Common Pleas Court passes on the question. If it says that the property belonged to this estate and it is necessary to appoint an executor to administer, that would be the time to do that.

The court made inquiry of counsel for applicant as to whether the further hearing before the Probate Court should be continued until the Common Pleas Court decided the question then pending before it. Counsel for applicant not agreeing to such a continuance the court upon motion dismissed the application.

In an entry dated April 28, 1944, the court rendered final judgment and dismissed the application, to which order of the court the applicant gave notice of his appeal to the Court of Appeals.

The appellant filed an assignment of errors to the effect that the Probate Court committed prejudicial error against the applicant in the proceeding before that court, in that (1) it erred in overruling applicant’s motion for new trial, (2) in refusing to appoint an executor, (3) and (4) in refusing to admit and in admitting evidence, and (5) in committing other errors.

We have studied the briefs submitted by respective counsel and find that there is no merit in the assignment of errors and the judgment of the court below is affirmed.

Judgment affirmed.

Hornbeck, Geiger and Guernsey, JJ., concur.

Guernsey, J., of the Third Appellate District, sitting by designation in the Second Appellate District.


author: Doyle, J.

text:
    Henry, Appellant, v. The Wellington Telephone Co. et al., Appellees.
    (No. 1042
    Decided April 9, 1945.)

      Mr. James M. Schooler and Mr. Richard F. Stevens, for appellant.

      Messrs. Bricker, Marburger, Evatt S Barton, Mr. Dan B. Symons and Mr. TI. IV. Ingersoll, for appellees.
   Doyle, J.

This is a derivative suit, brought against certain of the directors of the Wellington Telephone Company, in which it is alleged that (1) the said company “was required by law to carry a proper and adequate depreciation or deferred maintenance account” to provide an amount over and above the cost of maintenance “to keep the property of the public utility in a state of efficiency corresponding .to the progress of the art or industry”; (2) the monies for depreciation charges must be set aside out of the earnings and carried as a depreciation fund and such funds “may be expended in new construction, extensions or additions to the property of the public utility, or invested, and, if invested, the income from the investment shall also be carried in the depreciation fund. . Such fund and £he proceeds thereof may be used for the purpose of renewing, restoring, replacing or substituting depreciated property in order to keep the plant in a state of efficiency. Such fund and the proceeds or income therefrom shall be used for no purpose other than as provided in this section, except upon the approval of the Commission”; (3) the defendant directors, in disregard of their duties, from the year 1931 to and including the year 1941, “distributed to the stockholders out of the monies theretofore set aside as a depreciation reserve” a total of $27,683.81, without the approval of the Public Utilities Commission, and by reason théreof are “unable to keep the property of the company !!! * * in a state of efficiency corresponding to the progress of the art or industry, resulting in a deterioration of its properties and impairment of its service tó the public”; (4) the reduction of the company’s “capital” as a result thereof “was not accomplished by proper vote of the directors and stockholders and that no approval thereof has been obtained from the Public Utilities Commission of Ohio as provided by law.”

•' The petitioner thereupon prays that the defendants “be ordered and required to come to an accounting in respect to all matters and things set forth in this second amended petition and in respect to any and all violations of their respective duties as officers and directors of the Wellington Telephone Company; that feaid defendants * 56 * be required to restore any and all ássets of such company by them respectively wrongfully and illegally paid out as dividends,” and that judgment be rendered against them for any and all sums found to be due, etc.

To this petition an answer was filed, which, as tcP the actual controversy, is a general denial. :

It is not claimed, and certainly could not be successfully urged, that this action is predicated upon the provisions of Section 8623-123b et seq., General Code (in the General Corporation Act), for the reason that' there is neither pleaded nor proved a case under such provisions. Scullin v. Mutual Drug Co., 138 Ohio St., 132, 33 N. E. (2d), 992.

Directing attention to other statutes, we encounter Section 614-49, General Code (regulation of public utilities), in the following terms:

“Every public utility shall carry a proper and adequate depreciation or deferred maintenance account, whenever the commission after investigation shall determine that a depreciation account can be reasonably required. The commission shall ascertain, determine- and prescribe what are proper and adequate charges for depreciation of the several classes of property for' each public utility. The charge for depreciation shall be such as will provide the amount required over and above the cost and expense of maintenance to keep the property of the public utility in a state of efficiency corresponding to the progress of the art or industry. The commission may prescribe such changes in such charges for depreciation from time to time as it may find necessary.”

Also, Section 614-50, General Code, as follows:

“The moneys for depreciation charges thus provid-' ed for shall be set aside out of the earnings and carried as a depreciation fund. The moneys in such fund may be expended in new construction, extensions or additions to the property of the public utility, or invested, and if invested, the income from the investment shall also be carried in the depreciation fund. Such fund and the proceeds thereof, may be used for the purpose of renewing, restoring, replacing or substituting depreciated property in order to keep the plant in a state of efficiency. Such fund and the proceeds or income therefrom shall be used for no purpose other than as provided in this section, except upon the approval of the commission.”

The action as pleaded and tried seems to be based upon the foregoing statutes, although it is asserted that the action is likewise bottomed upon the rules of the common law.

We meet the case de novo on appeal from the Common Pleas Court of Lorain county.

The defendant is a small, independent telephone company, operating in Wellington, Lorain county, Ohio, and was organized in 1897 under the laws of Ohio. It has an authorized capital stock of $120,000, divided into $60,000 of common stock with a par value of $100 each, and $60,000 of preferred stock, having a par value of $100 each. Of such authorized capital there are issued and outstanding, 391 shares of common stock, at a par value of $39,100, and 528 shares of-preferred stock, with a par value of $52,800, which, combined, shows the total outstanding stock to have a par value of $91,900.

■The evidence shows that, as of December 31, 1939, the assets of the compaiiy had a reproduction value before depreciation of $207,132.53, and a depreciated-value of $155,514.44; that the depreciated valúe of the property used exclusively in the operation of the business was $134,622.86, and other property not directly used in the business had a depreciated value of $20,-891.50. In other words, the evidence shows and the court finds that the financial status of the company is and has been strong and sound; and this is especially so when viewed in the light of the difference between the aggregate of its assets less deductions for. depreciation, depletion, losses and bad debts, over the aggregate of its liabilities plus stated capital. (There are no appreciable losses or bad debts, nor are there any liabilities except small current accounts.)

It is true that, during much of the period in which it is claimed dividends were unlawfully paid, the books of the company were inadequately kept and did not comply with the technical method generally approved for public utilities. Nevertheless, the values existed, whether technically reflected in the books or not.

Under the common law the directors of a corporation may incur liability to their corporation for negligence, and such liability may be enforced against them jointly or severally. “There is no liability, however, either to the corporation or to creditors,, if they act in good faith and with due care, unless liability is imposed by some statute. In other words, they are not liable for mere errors of judgment. And it has been held that at common law a mere distribution of a portion of the capital of the corporation to the stockholders in proportion to their respective interests, and which does not impair the power of the corporation to discharge its indebtedness, is not such a waste or misappropriation of its funds as will give the corporation a cause of action against the directors for the amount so distributed.” 12 Fletcher, Cyclopedia Corporations (Rev. and Perm. Ed.), Section 5431.

Assuming that the action is properly brought under the rules of the common law, we do not find that there was actionable negligence which may be asserted against the defendants. We do not find that the corporation, creditors or the general public have suffered any injury because of the action of the directors.

An individual stockholder cannot prevail in a suit on behalf of the corporation, at least under the principles of the common law, when there has been no injury either to the company, to the individual stockholders, or to the general public, merely because some formal!ties of the law have not been met. And the fact that directors have acted informally in the distribution of a dividend when the financial condition of the company has warranted such distribution, does not render them liable if they have caused no harm.

It is asserted by the petitioner that this action is brought under both the common law and the statutes.

We do not undertake to determine in this appeal whether the statutes provide an exclusive remedy or not, for the reason that, under either or both theories, the petitioner’s claims must fail.

The case of Scullin v. Mutual Drug Co., supra, when analyzed in the light of the pleadings and the evidence under investigation, demonstrates the failure of the plaintiff to establish a case under the General Corporation Act (Section 8623-123b et seq., General Code). Does it establish a case under Sections 614-49 and 614-50, General Code (public utilities commission chapter) ?

The first paragraph of Section 614-49, General Code, provides a condition precedent to a claim of statutory violation. It provides that after the Public Utilities Commission has determined that a depreciation account can be reasonably required, then such commission shall order the public utility to carry a proper and adequate depreciation or deferred maintenance account. The statute then enjoins certain duties upon the Public Utilities Commission. The following section (Section 6.14-50, General Code) provides for the various uses for which the fund so required by the commission may bo used, and concludes in the following language: ‘ ‘ Such fund and the proceeds or income therefrom shall be used for no purpose other than as provided in this section, except upon" the approval of the commission. ’ ’

We have analyzed the essentials of these statutes and their practical operation, to indicate the question in this case. Authority is not lacking that the Legislature could have gone further, but we are not called upon to determine the extent of the legislative power beyond the limits of its exercise.

While the record shows that a depreciation fund, as such, was not in existence during the period in question, it also shows that the Public Utilities Commission had never required such a fund. And in this connection, an order by the Public Utilities Commission under the provisions of Section 614-10, General Code, does not supply the condition precedent imposed by Section 614-49, General Code, and create a liability of the kind sought here.

We determine, therefore, that no case has been made under these provisions of the statute.

A decree will be entered dismissing the petition of the appellant.

Petition dismissed.

Stevens, P. J., and Washburn, J., concur.


author: Skeel, J.

text:
    Turoff, Appellee, v. Richman et al., Appellants.

      (No. 19813
    Decided December 11, 1944.)

      Mr. A. E. Dudnik, for appellee.

      Messrs. Merrick, Arter é Stewart, for appellants.
   Skeel, J.

The plaintiff was a tenant in defendants’ apartment house located on East 106th street in the city of Cleveland. The suite occupied by the plaintiff was on the first floor. There were two entrances. The front entrance was through a vestibule on the front of the building facing East 106th street and the rear entrance was from the kitchen through an areaway which led to the north side of the building. There was a wide driveway maintained by the defendants for the use of all the tenants of the building and their invitees, along the north side of the building leading from the street to the garages in the rear. This driveway was used by pedestrians going to and from the rear entrance to the plaintiff’s suite and others similarly situated.

On the morning of January 7, 1943, at about ten o’clock, the plaintiff left her suite by the rear door to go shopping. She passed through the areaway to the driveway and then started to walk toward the street. She had not taken more than a step or two when she slipped and was thereby injured.

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 case that there was any defect in the construction of the driveway or that it was maintained in a dangerous 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 accumulated there from natural causes and that such negligence on their part was the proximate cause of her injuries.

There seems to be no reported case in Ohio dealing with this question, although the rule with regard to the accumulation of ice and snow from natural causes on public sidewalks is well settled in this state.

In the case of Chase v. City of Cleveland, 44 Ohio St., 505, 9 N. E., 225, 58 Am. Rep., 813, the court held: City of Norwalk v. Tuttle, 73 Ohio St., 242, 76 N. E., 617.

“In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred, is a public highway within the corporate limits; that upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to have made the sidewalk safe before the accident, are not sufficient to show negligence.” See, also,

Likewise, the Ohio courts have considered the question of the liability of the abutting- property owner for failure to remove ice and snow from the public sidewalk in front of his premises, in violation of the provisions of a city ordinance. In all of these cases the courts have held that the violation of such an ordinance does not give rise to a cause of action against the property owner for injuries sustained by one who is injured by slipping and falling on such icy sidewalk.

29 Ohio Jurisprudence, 438, Section 42, states:

“In ordinance cases, a limitation upon the general rule that violation of a statute or ordinance is negligence per se has been suggested. It is declared that the rule that violation of a statute or ordinance is negligence per se is limited to cases of active conduct, and that it does not apply where the conduct of the defendant is entirely passive. Accordingly, it does not apply where the defendant fails to remove snow from the sidewalk, in violation of a municipal ordinance.”

And in Steinbeck v. John Hauck Brewing Co., 7 Ohio App., 18, the court held:

“An owner who fails to remove ice from a sidewalk extending along his premises, where same was formed thereon by natural causes and without any act or fault on his part, or fails to make said sidewalk safe by covering the same with sand or some other suitable substance, is not liable in damages to one who sustains injuries by falling upon such icy sidewalk, even though a city ordinance required such owner to remove the ice from such sidewalk or cover the same with sand, and provided a penalty for failure so to do.”

Should there he 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.

This rule, which is sustained by the greater weight of authority, is stated as follows in 25 A. L. R., 1301:

“Ordinarily, the landlord of premises leased to different tenants, who use in common the approaches thereto, and the halls and stairways, is not liable for accumulations of snow and ice due to natural causes, and hence is not liable for injuries to persons using these portions of the premises, due to accumulations of this character.”

In the case of Bell v. Siegel, 242 Mass., 380, 136 N. E., 109, 25 A. L. R., 1261, the court had before it an action where a tenant was seeking damages because of injuries sustained in a fall, caused by ice that had formed on the front steps, such steps being for the common use of both the landlord and the tenant. The syllabus is as follows:

“In an action by a tenant against the owner of a two story dwelling house, the upper floor of which was occupied by the plaintiff as a tenant at will and the lower floor by the defendant, for personal injuries caused by slipping on a natural accumulation of snow and ice upon the front steps of the house, which were used in common by the plaintiff and by the defendant, it appeared that the defendant had gratuitously promised the plaintiff to clear and take care of the steps and had so taken care of them for a few times before the accident but not immediately before it and that there was no contractual obligation upon the defendant to keep the premises safe for use. It did not appear that the condition of the ice was caused by any negligence or wrongful’act of the defendant. Held, that
“ (1) The relation of landlord and tenant imposed on the defendant no duty to remove from the steps ice naturally accumulating thereon;
“ (2) The defendant was not liable unless his failure to remedy the dangerous condition was evidence of gross negligence.
“(3) The existing condition not being a hidden defect nor the result of a positive act and at most being the consequence of inaction, in the circumstances the failure to remove the ice and snow, although it had been upon the steps some days, did not constitute gross negligence.”

Also, in the case of Oerter v. Ziegler, 59 Wash., 421, 109 P., 1058, (1910) (Supreme Court of Washington) the court said on page 424:

“On the other hand, the weight of authority holds that where different portions of a building are leased to different tenants, the landlord must use due diligence to keep the passageways, and such parts of the building as are used by the different tenants in common, in a reasonably safe condition, and is liable in damages for a failure so to do. 18 Am. & Eng. Enc. of Law (2 Ed.), 220. This obligation, however, only extends to general repairs, and does not impose on the landlord a liability for injuries resulting from temporary obstructions arising from natural causes, such as the accumulation of ice or snow. Woods v. Naimheag Steam Cotton Co., 134 Mass., 357, 45 Am. Rep., 344; Purcell v. English, 86 Ind., 34, 44 Am. Rep., 255; Sawyer v. McGillicuddy, 81 Me., 318, 17 A., 124, 3 L. R. A., 458, 10 Am. St. Rep., 260.”

We conclude therefore that the trial court committed prejudicial error in overruling defendants’ motion for judgment on the pleadings and opening statement of plaintiff, also in overruling defendants’ motion for a directed verdict at the end of plaintiff’s case and at the conclusion of the taking of all the evidence in the case, and also in overruling defendants’ motion for a judgment notwithstanding the verdict.

The judgment of the Common Pleas Court is reversed and final judgment rendered for the defendants.

Judgment reversed.

Morgan, P. J., and Lieghley, J., c.oncur.


author: Hornbeck, J.

text:
    Heath et al., Appellants, v. Kosier et al., Appellees.

      (No. 633
    Decided February 5, 1945.)

      Messrs. Murphy & Staley, for appellants.

      Mr. Paul W. Younker, for appellees.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court that the paper writing admitted to probate and record as the last will and testament of Florence A. Kosier, deceased, was her last will and testament.

The questioned instrument was signed and executed on June 15, 1942. It provided that after the payment of debts and funeral expenses the estate should be distributed “in accordance with the provisions of the laws of Ohio governing the descent of property.” One item of the will recited that the testatrix had recently executed a will with which she was dissatisfied, that she had demanded it for the purpose of destroying it and that she specifically revokes any and all former wills by her made. The former will to which reference was made was executed on June 3, 1942, and gave to testatrix’s husband, Alonzo Kosier, one-third of the proceeds of the sale of her property, personal and real, and the residue to her brothers, John Heath and George W. Heath, and her sister, Katherine Lewis, to be divided equally among them.

On July 11, 1942, contestee, husband of testatrix, signed and made affidavit to, and on the 22nd of July filed in the Probate Court of Darke county, Ohio, an application for appointment of a guardian for Florence Kosier on the ground that she is “incompetent by reason of her physical condition and her mental condition and by reason thereof is incapable of taking proper care of herself or her property *. * V’ On July 22, 1942, the probate judge appointed contestee guardian “of the person and estate of Florence Kosier aged 72 years on the 23rd day of March, 1942, an incompetent person.”

The issue whether the writing purporting to be the last will and testament 'of Florence A. Kosier was her last will and testament was made up under the statute.

As the evidence developed, some of it tending to prove mental incapacity of the testatrix to execute the will in question, counsel for contestants indicated that no claim of mental incapacity was asserted and eventually explicitly withdrew any such ground as the basis for a verdict in their behalf.

Four errors are assigned, the first of which is that “the trial court erred in refusing to admit evidence of application for appointment of guardian and adjudication of incompetency by the Probate Court.”

It will be’noted that the adjudication of the probate judge on the application for appointment of a guardian for Florence Kosier was that she “is incapable by reason of infirmities” without determination of the specific type of incompetency. It may be assumed that it was not because of physical infirmity as no consent to such an adjudication appears. Section 10507-2, General Code. The application having stated that Florence Kosier was “incompetent by reason of her physical condition and her mental condition, ’ ’ it would necessarily be implied that the basis for the appointment of a guardian was her mental infirmity. The record in the Probate Court, consisting of the application for appointment of the guardian for Florence Kosier and the adjudication thereon, was offered in evidence by contestants. The court refused to admit this testimony and this is the basis of the foregoing first error assigned.

The evidence disclosed that at the time of the making of both wills and subsequent thereto until her death, the testatrix was in poor health and weak in body and there is some testimony that at times, at least, she was also weak in mind.

There was express testimony on behalf of contestants, to the effect that contestee, the husband of tes.tatrix, did attempt, in no uncertain terms, to cause her to change her first will wherein her relatives were to share in her estate. This testimony disclosed threats to have her declared a crazy person, to refuse longer to provide for her and a marked dissatisfaction with the first will. This evidence was unusual in that it had probative effect, if true, to establish by direct proof actual exercise of undue influence upon the testatrix. Other testimony to support contestants’ claim was circumstantial. There was strong support for the position of the contestees that the testatrix although ill was strong willed and not the type of person who would be easily influenced or whose will could have been overcome by the circumstances appearing in the record. The testimony of the scrivener of her last will was effective to establish that she realized fully what she intended to do with her property and that she exercised her free will in so doing. Thus the evidence for and against the validity of the will was positive and had much weight depending largely upon how and in whose favor the jury resolved it.

The fact that upon the application of the sole beneficiary of her second will, within approximately a month "after its execution, she was declared to be an incompetent person because of mental infirmity, in conjunction with the other testimony, certainly had some probative effect as to her susceptibility to influence.

We are not provided with brief of counsel for appellees nor with the viewpoint of the trial judge in refusing to accept this testimony. It may be that he was of opinion that if there was no issue of mental incapacity, the adjudication had no probative effect. This, however, in our judgment, does not follow because, even though no issue was made of mental incapacity, if it appeared it might lend credence to the contention that by reason thereof the mind of the testatrix was more easily influenced than that of a normal person.

It is a well recognized principle of law that an adjudication of insanity is admissible upon the issue of the testamentary capacity of testator at the time of the execution of his will and such testimony is competent whether the adjudication is made before or after the making of the will provided that it is not too remote. When the adjudication sought to be offered is made after the execution of the will it may under all the circumstances constitute some evidence of the mental inability to withstand influence. The question is made the subject of a complete annotation following Field v. Koonce, 178 Ark., 862, 12 S. W. (2d), 772, in 68 A. L. R., 1309 et seq. The principle is also recognized in Ohio, Kennedy v. Walcutt, 118 Ohio St., 442, 161 N. E., 336; Washburn v. Winkler, 6 Ohio Law Abs., 689, Rutledge v. Inlow, 51 Ohio App., 207, 200 N. E., 204.

The evidence should have been admitted upon the issue of undue influence.

The second error assigned is that the trial judge erred “in refusing to admit evidence which tended to show that the first paper writing was consistent with the desires which said testatrix had expressed previous.”

This evidence was the testimony of John Heath, a brother of testatrix, who was questioned whether before testatrix moved to G-reenville she had talked to him about what she wanted to do with her property. The court let him answer that he did talk to testatrix but refused to permit the answers as to wbat she said on the ground that it was too remote. The answer proffered was that if permitted to answer, the witness would have stated that she did talk to him about the disposition of her property, and that she did not want it to go to Mr. Rosier’s children but wanted her property to go to her people.

The court did not err in the ruling upon the evidence as it appears because there is no time fixed to indicate whether it was one year, two years, five years or more before the making of the second will. It appears from the record that the Rosiers moved to Greenville from a farm a little more than a year before the execution of the second will. If the statement to the witness was made at or about the time of the moving it would be competent and proper to admit it as bearing upon the state of mind of testatrix.

The third error assigned is that “the court erred in refusing to instruct the jury as to where the property would go in the terms of the first paper writing,’ plaintiff’s exhibit 1.” This charge read:

“The court instructs you as a matter of law that by the terms of the paper writing executed on the 3rd day of June, 1942, Alonzo Rosier would be entitled, to take under the law of descent and distribution of this state; that under the law of descent and distribution, he would receive an exemption amounting to 20% of the value of her estate in a sum not less that $500 and not more than $2,500 and in addition thereto would receive one-half of the balance of said estate. ’ ’

The charge is not an exact statement of the law because the share of testatrix’s estate which the charge asserts he could have received would not be that portion which he would take by virtue of the will but upon his election not to take under the will. The court committed no error in refusing to give the charge as tendered.

The fourth and last assignment is that “the verdict and judgment are against the weight of the evidence. ’ ’ As we have before stated the evidence in this case for the respective parties was well balanced, the verdict depended largely upon the determination of the jury as to the probabilities and whether the testimony should be resolved in favor of or against the contestants. As they had a substantial burden the jury had the right to find against them.

We find only assignment of error No. 1 well made and, because of the state of the record, we hold it to have been prejudicial and therefore reverse the judgment and remand the cause for new trial.

Judgment reversed,.

Geiger and Sherick, JJ., concur.

Sherick, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.