text:
    The State of Ohio, Appellee, v. Forquer, Appellant.
    (No. 497
    Decided March 13, 1944.)

      Mr. Herbert B. Freeman, prosecuting attorney, for appellee.

      Messrs. Young S Young, for appellant.
   Lloyd, J.

The defendant, F. W. Forquer, appellant herein, was found guilty by a jury in the Court of Common Pleas of a violation of Section 13043, General Code, as charged in the indictment returned against him by the grand jury; the offense charged therein being designated in the statute as “sodomy.” Motion for a new trial was overruled and sentence imposed.

The act with which he was charged, as shown in the indictment, by the explanatory bill of particulars filed by the state at the request of the defendant and by the evidence presented by the state in support thereof at the trial, is known as cunnilingus, the participant with the defendant being a girl nine years of age. State v. Besares, 75 Utah, 141, 283 P., 738; State v. Murry, 136 La., 253, 66 So., 963.

Prior to 1885 there was no statute in Ohio creating the alleged crime. Davis v. Brown, 27 Ohio St., 326.

The statute passed on May 4, 1885 (82 Ohio Laws, 241), read as follows:

“Whoever shall have carnal copulation against nature, with another human being or with a beast, shall be deemed guilty of sodomy, and shall, on conviction thereof, be imprisoned in the penitentiary not more than twenty years.”

On April 12, 1889, the statute was amended (86 Ohio Laws, 251) to read:

“Whoever shall have carnal copulation in any opening of the body, except sexual parts, with another hu-. man being, or with a beast, shall be deemed guilty of sodomy, and shall on conviction thereof be imprisoned in the penitentiary not more than twenty years.”

In the 1910 codification of the statutes, this statute was revised as Section 13043 of the General Code, to read:

“Whoever has carnal copulation with a beast, or in any opening of the body, except sexual parts, with another human being, shall be guilty of sodomy and shall be imprisoned in the penitentiary not more than twenty years.”

The statute as thus revised and numbered is now in force and effect.

The Ohio statute differs materially in phraseology from those of other states, cited to us by counsel, which make criminal the commitment of “the crime against nature ’ ’ or, as in some, ‘ ‘ the abominable and detestable crime against nature with mankind or beast.” The courts of the states having such statutes, construe them to be sufficiently broad in application to cover an act such as is under consideration in the instant case.

The Ohio statute is restrictive in application and definition, and does not include the words “any crime against nature. ’ ’ The designation of the offense in the statute as sodomy adds nothing to the nature of the acts prohibited and made punishable thereby. What are the acts thereby proscribed? They are (1) carnal copulation with a beast, and (2) carnal copulation in any opening of the body except sexual parts, with another human being.

The statute, being criminal, must be construed strictly according to its clear import and not, because of the ■disgusting and infamous nature of the act, as it may be thought it should be.

The court is constrained to hold that the alleged act -of Forquer was not within the purport of the statute and that the judgment must be reversed and he be discharged. If the statute is to be broadened to include acts such as Forquer is charged with, it is the province of the General Assembly and not of the courts to make it so.

Judgment reversed and defendant discharged.

Carpenter and Stuart, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State, ex rel. Behrens, v. Board of Elections of Hamilton County et al. The State, ex rel. Sharp, v. Board of Elections of Hamilton County et al.
    (Nos. 6365 and 6366
    Decided October 15, 1943.)

      Mr. William R. Collins, for relator.

      Mr. Carson Hoy, Mr. Edward Strasser and Mr. C. Watson Hover, for respondents.
   By the Court.

A motion for a new trial has been filed in this cause which is an original action in mandamus. As it was filed more than three days from the judgment of the court, such motion may not be considered as effective for any purpose.

On the application for rehearing, it is claimed that as the objections to the nominating petition were not filed with the board of elections before the fifty-fifth day prior to the election, such protest came too late to be effective.

If only the objections are considered, such contention is valid. Such is the holding in State, ex rel. Cassidy, v. Zaller et al., Board of Elections of Cuyahoga County, 142 Ohio St., 186, 50 N. E. (2d), 991, the syllabus of which is as follows:

“Under Section 4785-92, G-eneral Code, which permits objections to nominating petitions to be filed during the period of inspection of at least five days prior the fifty-fifth day preceding the election, objections filed on the fifty-fifth day before election are not filed within the time provided by statute, and the board of elections may refuse to consider them.”

In that case, one filing an objection sought to compel the board through mandamus to pass upon the objection. The case merely holds that such relief may not be afforded when the protest is not filed until the fifty-fifth day.

However, the board obviously has always the duty as well as the inherent power to invalidate any defective petition. The law specifies certain necessary requirements of a valid petition. If any of those are lacking, the petition is defective, and is as useless for any purpose as if no petition were filed. State, ex rel. Minor, v. Curtis et al., Deputy State Supervisors of Elections for Erie County, 101 Ohio St., 383, 130 N. E., 18; Koehler, Jr., v. Board of Elections of Butler County, 125 Ohio St., 251, 181 N. E., 107.

Section 4785-13, General Code, provides in part:

“The boards of elections within their respective jurisdictions by a majority vote shall exercise, in the manner herein provided, all powers granted to such boards in this act, and shall perform all the duties imposed by law which shall include the following: * * *

“k. To review, examine and certify the sufficiency and validity of petitions and nomination papers.”

In State, ex rel. Smith, v. Lloyd, 93 Ohio St., 20, 112 N. E., 141, it is stated:

“It appears upon the face of these petitions that in the respect referred to they were not in conformity with the requirements of the law, and therefore the board of deputy state supervisors and inspectors of elections was not required to deem them valid, although no objection had been made in writing within five days after the filing thereof. Sections 5005 and 5006, General Code, must be read and construed together. The latter section, as amended in 103 Ohio Laws, 844, provides that ‘such objections or other questions, arising in the course of the nomination of candidates, shall be considered as follows: * * * For township or municipal offices, justices of the peace, or members of the board of education, by the board of • deputy state supervisors of the county, and its decicion shall be final.’ Not only would the board have the inherent right, but authority is conferred upon it, without objection filed, to reject and refuse to act upon nominating petitions which clearly are not in conformance with the requirements of the law.

It is the manifest duty of the board of elections to examine petitions filed with it and if the same do not comply with the requirements of law, to so find and pronounce such petitions void, whether objection or protest is or is not filed with the board.

In the instant case, the nominating petition failed to meet the requirements of the law- and was therefore void.

The decision of the board to this effect may not be disturbed.

Writ denied.

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


author: Hildebrant, J.

text:
    The Central Trust Co. of Cincinnati, Exr., Appellant, v. Lamb, Appellant ; Mitchell et al., Appellees.
    (No. 6376
    Decided March 20, 1944.)

      Messrs. Taft, Stettinius & Hollister, for appellant and appellee The Central Trust Company, executor and trustee.

      Mr. Edward P. Moulinier and Mr. Graham P. Hunt, for appellant Imogene S. Lamb.

      Messrs. Marble <fc Vordenberg, for appellees Louise Mitchell and William N. Eickenhorst.
   Hildebrant, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton county in a suit seeking a declaratory judg-, ment, with other relief, construing the will of Amy R. Campbell as throwing upon her general estate the burden of the Ohio inheritance tax on a certain inter vivos gift. The executor and residuary beneficiary are both appellants.

The following facts provide the background necessary for a decision:

On February 28, 1925, testatrix, as donor, entered into the following inter vivos trust agreement:

'That whereas I, Amy R. Campbell, of Cincinnati, Ohio, in consideration of one dollar and other good and valuable considerations, have contemporaneously with the execution of these presents executed and delivered to William N. Eickenhorst one thousand (1000) shares of Proctor & Gamble stock, in trust, however, for the following uses and purposes:

“To hold, manage, control, invest and reinvest the same in liis absolute and unqualified discretion, to pay to me, Amy R. Campbell, all of the income thereof during my said natural life, and at my death to pay to Blanche R. Sexton one-third of the income thereof for the period of her natural life, and to pay to Harriet E. Jelke one-third of the income thereof for the period of her natural life, and to retain for himself one-third of the income thereof. Upon the death of either Blanche R. Sexton or Harriet E. Jelke, the income of said one-third of .said trust fund shall be divided equally between the survivors thereof, and at the death of both Blanche R. Sexton and Harriet E. Jelke the remainder of said trust fund shall pass to and vest in the said William N. Eickenhorst absolutely and in fee simple, and said trust shall be thereupon terminated.

“Provided, however, if the said William N. Eickenhorst die prior to Blanche R. Sexton and Harriet E. Jelke or either of them, I hereby appoint Charles W. Baker, Jr., as trustee to carry out the terms of this trust, having each and all the powers that I have given William N. Eickenhorst as trustee. And the said Charles W. Baker, Jr., as trustee shall pay to me the said income thereof for the period of my natural life if I be still living at the time of the death of William N. Eickenhorst, and upon my death, or if I die prior to the death of William N. Eickenhorst, upon his death,, shall pay to Blanche E. Sexton.and Harriet E. Jelke, their heirs and assigns, the principal thereof share and share alike.

“Provided further that the said William N. Eickenhorst having been provided for in said trust agreement, shall receive nothing for his services as trustee herein, and said trust agreement shall be in lieu of any and all claims that he may have against said trust other than those expressly mentioned therein.

“In the event of the refusal or inability of the said William N. Eickenhorst to accept the trust hereinbefore created, or in the event of the resignation, disqualification or subsequent inability to act of the said William N. Eickenhorst I nominate and appoint as said trustee Charles W. Baker, Jr.

“In witness whereof, I have hereunto set my hand this 28th day of February, 1925.

“In presence of Clarence H. Hallman.

“Amy E. Campbell.”

The conditions happened whereby the remainder consisting of the entire trust fund would pass to and vest in the defendant Eickenhorst upon the death of testatrix, which fact was known to her on February 27, 1939, on which date she executed her last will and testament, the pertinent parts of which are as follows:

“Item one: I direct that my executor hereinafter named pay all my funeral expenses and all of my just debts as soon after my decease as may be found practicable. I further direct my executor to pay as expenses of administration all inheritance, succession and estate taxes that may be levied or assessed by reason of my death. No such tax shall be charged by my executor against the shares of the principal or income of any beneficiary of my estate.”

“Item five: I give, devise and bequeath to my friend, Imogene S. Lamb, if she survives me, my residence property located at 2590 Grandin road, Cincinnati, Ohio, including the house and all land and buildings used in conjunction therewith, and all my household goods, furniture, clothing, personal effects, automobiles, books, pictures and other tangible personal property of all sorts whether located there or elsewhere. ’ ’

“Item seven: I have not made my friend and business manager, William N. Eickenhorst, a beneficiary under this, my will, because I have, during my lifetime, made ample provision for him.

“Item eight: I give, devise and bequeath all of the residue of my estate of every kind and description to my friend Imogene S. Lamb, to be hers absolutely and in fee simple.

“Item nine: I nominate and appoint The Central Trust Company of Cincinnati (Ohio) as executor of this my last will and testament, and direct that no bond be required of The Central Trust Company as such executor. I direct that my executor be not required to file any inventory or appraisement of my estate that may be lawfully dispensed,with, or make any sale thereof as may be required by law. I give my executor full power to settle and compound any and all claims that may be due to or from me. To enable my executor to pay my legacies, debts, funeral expenses, the expenses of administration of my estate, and all estate, inheritance and succession taxes that may be assessed by reason of my death, and to execute the provisions of this my will, and of any codicils thereto that I may execute, I authorize and empower my said executor to sell any part or parts of my estate, real or personal, not hereinabove specifically bequeathed or devised, at public or private sale, at such times and places, for such prices, and on such terms of payment, as it may deem expedient, and to execute and deliver all deeds or other instruments of writing necessary to carry out any such sale, without being required to apply to any court for authority so to do. Purchasers from my executor shall not be concerned to inquire as to the occasion for the sale nor to see to the application of the purchase money, and written receipts signed by my executor shall be good and sufficient discharges for the sums therein stated to have been received.”

The validity of the will was sustained by jury verdict in an action heretofore concluded to set the will aside. Extrinsic evidence permitted by the trial court, reveals that testatrix, a woman of large affairs, died on September 10, 1941, in her eighty-third year; that defendant Eickenhorst for some thirty-odd years enjoyed a confidential relationship with her, first, as employee, then as friend and manager; and that the residuary legatee, as companion, nurse and friend, also-enjoyed a confidential relationship with testatrix during the latter years of her life. Neither defendant Eickenhorst nor the residuary legatee were related by blood to testatrix. There was also introduced in evidence, over objection, a copy of a former will of testatrix, dated July 19, 1938, containing the following-items -.

‘ ‘ Item one: 1 direct that my executor or executrix hereinafter named pay my funeral expenses and all of my just debts. I further direct my executor or executrix to pay as expenses of administration of my estate all inheritance, succession and estate taxes that may be levied or assessed by reason of my death. No such-tax shall be charged by my executor or executrix against the bequest or devise of any non-residuary beneficiary of this will, nor shall any such beneficiary be required to pay to my executor or executrix the amount of any such tax before receiving all or any part of his or her bequest or devise,.but all such taxes shall be paid out of the residue of my estate.”

“Item nine: I give, devise and bequeath all the residue of my estate, both real and personal, of every sort and wheresoever situate, existing at my death, in equal shares to my friends, Imogene S. Lamb, hereinabove referred to, and William N. Eickenhorst who now conducts the Campbell Commercial School at 31 East Fourth street, Cincinnati, Ohio. Should either of them not survive me, I give, devise and bequeath said residue to the one of them who does survive me. Should neither of them survive me, I give, devise and bequeath said residue to my heirs at law.”

Appellants argue only two assignments of error, the first being that the court erred in admitting the copy of the former will.

To enable the court to place itself in the position of the testatrix at the time of making her will and assist it in correctly interpreting the language claimed by appellants to be subject to a latent ambiguity, to wit, just what is comprehended within the words “my estate,” the court finds such evidence was admissible. 41 Ohio Jurisprudence, 634, Section 503 reads:

“It is not uncommon for the courts to call for the original draft of a will, or for a former will, from which the will in question was made, and to inspect them. A Common Pleas Court of Ohio has held admissible a previous will from which the one in question was copied. ’ ’

See, also, Taylor et al., Exrs., v. Taylor, 7 N. P. (N. S.), 297, 19 O. D., 829; 41 Ohio Jurisprudence, 612, Section 480.

We come now to the second and principal issue of the case, which may be simply stated thus: Where does the burden of the Ohio inheritance tax rest, upon the trust estate by virtue of the law, or upon the general estate by virtue of the expressed intention of the testratrix contained in the language of her will?

The applicable sections of the Ohio General Code are:

Section 5331, General Code, relating to inheritance taxes, contains the definition of terms. In that section is found the following:,

“* * * 1. The words ‘estate’ and ‘property’ include everything capable of ownership, or any interest therein or income therefrom, whether tangible or intangible, and, except as to real estate, whether within or without this state, which passes to any one person, institution or corporation, from any one person whether by a single succession or not.

“2. ‘Succession’ means the passing of property in possession or enjoyment, present or future. * * *

“4. ‘Decedent’ includes a testator, intestate, grantor, assignor, vendor or donor. * * *”

Section 5332, General Code, likewise relating to inheritance taxes, provides in part:

“A tax is hereby levied upon the- succession to any property passing, in trust or otherwise, to or for the use of a person, institution or corporation, in the following cases: * * *

“3. When the succession is to property from a resident, or to property within this state from a nonresident, by deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property:

“ (a) In contemplation of the death of the grantor, vendor, assignor, or donor, or

'“(b) Intended to take effect in possession or enjoyment at or after such death.”

. Section 5336, General Code, provides in part as follows :

“Such taxes shall be and remain a lien upon the property passing until paid, and the successor and the executors or administrators of the general estate of the decedent, and the trustees of such property shall be personally liable for all such taxes, with interest as hereinafter provided, until they shall have been paid as hereinafter directed.

‘ ‘ Such an administrator, executor or trustee, having-in charge or in trust for distribution any property the succession to which is subject to such taxes, shall deduct the taxes therefrom, or collect the same from the person entitled thereto. He shall not deliver, or be compelled to deliver, any specific legacy or property, the succession to which is subject to said taxes, to any person, until he shall have collected the taxes thereon. He may sell so much of the estate of the decedent as will enable him to pay said taxes in like manner as he would be empowered to do for the payment of the debts of the decedent.”

It is apparent from the above-quoted sections that that law casts the tax burden upon the beneficiary of the trust, as the Probate Court found in assessing the tax against the trustee, unless testatrix, as she had the right to do, by appropriate language in her will, shifted that burden elsewhere, as found by the Common Pleas Court. Did the will then direct the tax burden otherwise than the law?

To restate here what has been variously iterated and reiterated in many Ohio cases, the cardinal rule of interpretation of a will is to ascertain and give effect to-the intention of the testator. And to that end all rules-of construction are to be followed only as they assist in determining that intention, and no rule, however sanctioned by usage is to be applied to thwart that intention. That intention is to be ascertained from the wording of the will as applied to the subject matter and considered in the light of surrounding circumstances known to the testator at the time of the execution of the will. The intention is to be gleaned from the whole will, and, except for the inclusion of the syllabus of Townsend’s Exrs. v. Townsend, 25 Ohio St., 477, set forth in appellants’ brief, which the court deems pertinent here, no further general statement of the objective of decision of this case will be indulged. The syllabus is as follows :

“1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

“2. Such intention must be ascertained from the words contained in the will.

“3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.

“4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.

“5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.”

Testatrix here said in her will:

“Item I. * * * I further direct my executor to pay as expenses of' administration all inheritance, succession and estate taxes that may be levied or assessed by reason of my death. 'X: * *”

Appellants concede that such sentence, standing alone, means testatrix intended to shift the statutory tax burden. They claim the third sentence of item I, to wit, “No such tax shall be charged by my executor against the shares of the principal or income of any beneficiary of my estate,” not only casts doubt upon that meaning, but, by use of the words “my estate,” an intention to charge only that part of her estate, upon which her will operates to direct devolution, appears, and the ordinary, plain, all-inclusive, clear statement contained in sentence two, for that reason, does not mean what it concedeclly says. They contend that the words “my estate” in effect have acquired a meaning in law limiting their -application to the testamentary estate only and thus a rule of construction of wills, in seeking to fix the burden of so-called death taxes, is born. Appellants cite numerous cases from the states of Connecticut, Massachusetts, Maryland, New Jersey, and New York, claiming that such rule is a new one to be invoked in Ohio. The court has examined all of the cited cases including Sherman et al., Exrs., v. Moore, 89 Conn., 190, 93 A., 241; United States Trust Co. of New York v. Sears, 29 F. Supp., 643; Loring et al., Exrs., v. Gardner et al., Trustees, 221 Mass., 571, 109 N. E., 635; Farmers’ Loan & Trust Co., Trustee, v. Winthrop, Jr., Exr. (1924), 238 N. Y., 488, 144 N. E., 769; In re Clark’s Estate, 7 N. Y. Supp. (2d), 176; In re Kaufman’s Estate, 10 N. Y. Supp. (2d), 616; Chase National Bank of City of New York v. Tomagno, 14 N. Y. Supp. (2d), 759; In re Aldrich’s Will, 18 N. Y. Supp. (2d), 420, and with the trial court, finds that by reason of the language used, or the extrinsic evidence involved, or the laws of the various states, or the combination of two or more of these reasons, they are insufficient to control or direct the decision of this case.

The court finds no fault with the rule referred to in tlie cited cases, which is substantially that as the practical effect of making a legacy or devise, or other gift, tax free, is to increase the gift and shift the burden of taxation to other or residuary legatees, the intent of the testator to do so must be clear and will not be drawn from vague or uncertain language. But, after exploring the field, the court finds itself back again with the fundamental problem of ascertaining the testamentary intent from the language used.

Appellants contend that to exonerate the trust estate from the tax is in effect making defendant a beneficiary under the will, contrary to item seven. Item seven appears to the court to be merely an explanation for posthumous inspection, wherein testatrix yielded to the human desire to prevent uninformed comment on the part of those knowing of her confidential relationship with defendant during lifetime, and it appears that the word “beneficiary” is used in the sense of a named beneficiary of a specific legacy or devise.

Bearing in mind that defendant here was named as a beneficiary in the former will of July 19, 1938, the significance to be gained by a comparison of the two wills tends to substantiate the claim that the language of the last will was used designedly to accomplish a shift of the tax burden on the .succession to the trust estate, from that estate to the general or testamentary estate.

If, as appellants indicate, it is quite likely that a general intent to treat defendant and the residuary legatee equally, existed, the shift of the tax burden would more nearly accomplish this in view of the specific devise of real estate and personal property to the residuary legatee.

Testatrix plainly said that not part, but “all inheritance, succession and estate taxes that may be levied or assessed by reason of my death” shall be paid by her executor as expenses of administration. She said: “No such tax shall be charged by my executor against the shares of the principal or income of” not just certain ones, but “any beneficiary of my estate.” Obviously, she had in mind her taxable estate, the technical words of inheritance, succession, estate taxes were used, and this court is struck with their use as being skillful and by particular design. By reaching out to' indulge a technical rather than ordinary construction of the words “my estate” to upset the plain, all-inclusive language used, would, it seems, defeat rather than ascertain the meaning of the language used, taken in connection with the will as a whole and the surrounding circumstances at the time of the execution of the will. The law presumes that the testatrix knew the succession to the trust corpus was taxable when she made her will, and the words “my estate” being subject to a latent ambiguity and less clear, will not be construed to change the clear statement of intent that all taxes arising by reason of her death were to be paid by her executor as expenses of administration.

'The judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

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


author: Matthews, J.

text:
    Dunn, Appellee, v. Rostock et al., Appellants.
    (No. 6395
    Decided May 15, 1944.)

      Mr. Cedric Vogel, for appellee.

      Mr. Clarence H. Hallman, for appellants.
   Matthews, J.

TMs is an appeal from a judgment on the verdict of a jury in favor of the plaintiff in a cause of action on a contract for labor upon a residence, at the rate of $1.25 per hour.

One of the defenses was that the promise sued upon was to answer for the debt, default, or miscarriage of another, which to be enforceable was required, under Section 8621, General Code, to be in writing, and that, as there was a failure to prove any such written promise, there was a failure of proof of the kind required by the statute.

The trial court concluded that the statute of frauds was inapplicable and instructed the jury that: “A contract of this kind, if you find there was a valid contract, according to the testimony of the plaintiff, such as he has testified to, then such contract need not be in writing, and it is for you to say what if any contract was made between the plaintiff and the defendants.”

There is a conflict in the evidence as to just what was said between the parties in the conversation relied upon to prove the contract, and the issue raised by this appeal is whether any 'reasonable construction of the testimony would bring the promise within the statute as a collateral promise to answer for the default of another.

The defendant Grace Rostock owned a lot of land in the city of Cincinnati. She entered into a contract with one Jones to erect a residence thereon. Jones engaged the plaintiff to do, or furnish carpenters to do, some or all of the carpenter work at $1.25 per hour. While the work was in progress and at a time when $159 was due and unpaid, the plaintiff reached the conclusion that Jones could not build the house for the contract price and became apprehensive about being paid for the carpenter work. He went to the house and told his employees to quit work, but before they had left the premises the defendant Otto Rostock, who was the husband of Grace Rostock, appeared and thereupon, according to the plaintiff, this conversation took place with him:

“I said ‘Mr. Rostock, I came down to pull these men off.’ He said ‘What is the matter?’ I said ‘I am not getting paid, and from what I hear this job is not going to pay .out. Somebody is going to take a loss. It isn’t going to be me,’ He said, ‘What makes you think it isn’t going to pay out?’ I said ‘Prom what I heard about the contract price. I have been in this business about thirty years. I know it can’t possibly pay out.’ He acknowledge to me then they wouldn’t pay out, one thousand, fifteen hundred dollars. He said, ‘You leave your men on, go ahead and finish. I will guarantee tliat you will get every cent tliat is coming to you.’ Well, I thought enough of Mr. Rostock, — took his word. 1 said, ‘All right, I will go ahead and work.’ ”

Otto Rostock’s version was somewhat different. He testified that the plaintiff told him he intended to “ ‘take his men away.’ I said, ‘Your men away? What for?’ ‘Well,’ he says, he wants a guarantee who is going to pay for this; he hears something the job isn’t going to pay out. I said, ‘I don’t know anything about that,’ and he said that he was to have an understanding who is going to pay for the rest of the work, I said ‘I wouldn’t pull the men off. I will promise you that I will pay you from this time, on.’ ” Two of the carpenters testified to hearing a part or all of this conversation. One testified: “Well, Mr. Dunn came down to take us off the job because Mr. Jones wasn’t paying up, so Mr. Rostock says ‘Don’t do that,’ he said ‘I will see that you get all your money.’ Se we stayed on then.”

The other carpenter testified Mr. Rostock said: “Leave them here, let them finish it up for me, I will see that they get every cent coming to them.”

Jones, the principal contractor, never abandoned the work and after this conversation with Mr. Rostock the plaintiff finished the carpenter work under the supervision of Jones, apparently just as he had done before the conversation, and as though no such conversation had taken place. The house was completed and there remained due the plaintiff and unpaid, the sum of $253.16 for work done after, in addition to $159 for work done before, the conversation.

At the close of the charge, on motion, the court dismissed Grace Rostock from the action.

The jury returned a verdict against Otto Rostock for the work done after the conversation, and judgment was entered thereon.

There was evidence that the plaintiff did not proceed diligently, but that is not mentioned on this appeal.

Now, it is clear that a contract was made between the plaintiff and Otto Rostock. Was it an absolute independent promise by Otto Rostock, or was it a collateral special promise to answer for the default of Jones? Only in the event that the uncontradicted evidence proved an independent promise was the court justified in charging that it need not be in writing. If there was evidence, even though controverted, that it was a promise collateral to that of Jones, it became an issue of fact to be decided by the jury.

In Birchell v. Neaster, 36 Ohio St., 331, the facts were very similar to those of the case at bar. The question was raised in a different manner, however. The plaintiff had filed a mechanic’s lien on the theory that he had an independent contract with the owner based on his conversation with her, which was almost verbatim the conversation between the plaintiff and Otto Rostock and under almost identical circumstances. The trial court found that the statute of frauds did not apply and entered a decree for the sale of the property to satisfy the lien. The Supreme Court reversed the judgment and used language in its opinion that is susceptible to the construction that the court considered the contract so clearly within the statute that no issue of fact was presented. However, the court did not enter final judgment for the defendant, but reversed and remanded to the Common Pleas Court. The syllabus was limited to statements of conclusions of law, based on an oral promise, the terms of which were not in dispute.

In Crawford v. Edison, 45 Ohio St., 239, 13 N. E., 80, the words used by the parties were about the same as those in the case at bar and in Birchell v. Neaster, supra, but there the resemblance ends. They were uttered under entirely different circumstances. The principal contractor had abandoned the work and left the county, when the plaintiff had completed about two-thirds of his subcontract, without having paid him anything and without having made any provision for paying for work done or to be done by him. It was in that situation that the conversation between the plaintiff and defendant took place.

The trial court, in the Crawford case, did not decide as a matter of law that the contract was not within the statute of frauds, but left the issue of the intent of the parties to the jury under this charge:

“ ‘If the jury find that the defendants entered into an agreement with the plaintiff, that if he, the plaintiff, would finish the roof, they, the defendants, would pay him the price that Smith was to pay, and you find their agreement was absolute, and not that they, the defendants, would stand as security for Smith, and pay if Smith did not, then your verdict should be the amount claimed in plaintiff’s petition, with interest added from the time claimed in the petition, to the 26th day of January, 1885. For I say to you, gentlemen, that if the plaintiff and defendants were of the opinion that Smith had abandoned the contract that he had made with the plaintiff, and the plaintiff was induced to complete the roof, by the promise and agreement that defendants would unconditionally pay him the sum of $155, such agreement would be supported by a sufficient consideration. But on the contrary, if you find the promise or agreement alleged to have been made between the plaintiff and defendants, was to pay or stand for the debt, default or miscarriage of Smith; that is, to pay plaintiff if Smith failed to, in respect to his, Smith’s agreement with plaintiff,' to pay plaintiff $155 for putting on the roof, then plaintiff cannot recover in this action, as it is not claimed that such agreement was in any respect in writing, and your verdict should be for the defendants.’ ”

The jury found for the plaintiff and judgment was rendered on the verdict. This judgment was affirmed by the Supreme Court. At page 247 of the opinion, the court set forth in great detail the circumstances under which the parties had conversed and it was those circumstances upon which the court relied to give the meaning of an intent to make an absolute and independent promise not within the statute of frauds as found by the jury. The court at pages 248 and 249 of the opinion, took notice of Birchell v. Neaster, supra, saying: “But in all that classifies that case among collateral and conditional promises, and distinguishes it from original and unconditional ones, it bears no analogy to the case under discussion.” It is thus seen that the court recognized that the two cases were in different categories and expressly so placed them.

The test in every case of this kind is whether the parties intended to make an absolute and independent contract or a conditional and collateral one. Ordinarily, the parties have not so stated in express terms and the trier of the facts is driven to the drawing of inferences from facts and circumstances to determine the intent. This is pointed out in 19 Ohio Jurisprudence, 573, Section 31, where, after a comment on various indicia of intent, it is said at 575:

‘ ‘ The reader must keep in mind that the question is one of construction of contract, and like other questions of this kind, its solution is not one that can be had according to any rule of thumb.” '

So in the case of Kampman v. Pittsburgh Contracting & Engineering Co., 316 Pa., 502, 175 A., 396, 99 A. L. R., 76, where the language was that the defendant would “stand good” and “see” that plaintiff was paid, the court held that the determination of the intent under the circumstances was an issue of fact for the jury and reversed a judgment entered by the trial court, notwithstanding the verdict. Quoting with approval from its opinion in the prior case of Corcoran v. Huey, 231 Pa., 441, 80 A., 881, the court said at page 505 of the opinion:

“ ‘If the words “we will see to it that you are paid” have a fixed legal meaning which so limits their force that only a secondary or collateral liability can be derived therefrom, then, inasmuch as the evidence which was asked to be stricken out, if believed,- establishes a primary obligation, the motion to strike out should have prevailed; for the variance between the allegata and probata would in such case be obvious. But this cannot be affirmed. These words have no such certain, fixed meaning that the court could say as a matter of law that they necessarily import the one kind of obligation rather than the other. Much depends on the connection in which they occur, and the circumstances attending their use. Cases are not wanting where the words “will see you paid” have been held to imply a collateral undertaking to pay if the original promisor did not, and counsel for appellants have recited some in support of their contention; but neither are cases wanting where recovery has been allowed as on an original undertaking where the same words, or words equivalent, have been used.’ ”

In the annotation to the Kampman case in 99 A. L. R., 79, an attempt is made to classify the many cases arising out of dealings of owners with subcontractors and materialmen in which the latter have sought to enforce an oral promise of the former. Many indicia are used as a basis of classification, but it is easily detected that what is under consideration are not rules of law, but factual data from which inferences may or may not be drawn by the trier of the issues of fact.

In the case at bar, the conflicting evidence as to the exact words and the facts and circumstances herein-before set forth, furnished ample basis for reasonable difference as to the intent of the parties. There was presented, therefore, an issue of fact for decision by the trier of the facts, which in this case was the jury. The function of the court was to formulate this issue and submit it to the jury for decision, under proper instructions, as was done in the case of Crawford v. Edison, supra.

We find no other error in the record.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Lloyd, J.

text:
    The State of Ohio, Appellee, v. Preston, Appellant.
    (No. 3973
    Decided June 7, 1943.)

      Mr. Joel S. Rhinefort, prosecuting attorney, and Mrs. Geraldine Macehvane, for appellee. .

      Mr. Frank J. McManus, for appellant.
   Lloyd, J.

The defendant Preston is the father of two minor children, the custody of whom was awarded by the Court of Common Pleas of Wood county to Mrs. Preston in an action wherein a divorce was granted k> her. Thereafter they became residents of Lucas county where, on November 7, 1935, an indictment was returned against Preston for nonsupport of the children. It seems that nothing was done on the indictment until April 5, 1937, when Preston, waiving the reading of the indictment, pleaded guilty and was sentenced to twelve months in the workhouse. The sentence was suspended on condition that he comply with the order of the Court of Common Pleas of Wood county as to the support of the children, and has not been invoked, and Preston has not served any part thereof. On May 5, 1940, Preston was again hailed into court and released on the giving of a maintenance bond. This bond, dated May 6, 1940, was filed in the cause. It was executed by Preston and J. P. Hauser. It is in the sum of $500 and was given to secure the payment to the Toledo Humane Society of $6 per week for the support of the minor children.

Mrs. Preston died on December 12, 1941, and thereafter the children resided with the maternal grandparents, to whom on December 23, 1942, the custody of the children was given by the Juvenile Court of Lucas county.

The action resulting in the judgment from which this appeal is taken, was brought on the bond. A jury ■was waived and the cause tried by the court. The finding and judgment were in favor of the state in the sum of $371.18. Preston appeals. Hauser does not.

Preston claims that the judgment is erroneous because the bond was for the securing of the support of the children while in the custody of the mother and was not to secure payment to the grandparents of any part of the sum awarded by the court for the support of the children. This contention is not tenable. The weekly payments were to be made to the Toledo Humane Society for the support of the children, and there is no claim that any of them was diverted to any use other than its intended purpose.

The other claim made is that the sentence imposed on Preston having been suspended and the term of the sentence having expired, the bond has become unenforceable. A court has no power to suspend this sentence. The order of suspension is void and does not prevent the court from carrying the sentence into execution. Shondell v. Bradley, Supt. of Toledo Workhouse, 42 Ohio App., 8, 181 N. E., 559. The bond, therefore, is in force and effect for the purposes for which given.

No error appearing in the record prejudicial to Preston, the judgment is affirmed.

Judgment affirmed.

Carpenter and Stuart, JJ., concur.


author: Matthews, J. Matthews, J.

text:
    Armbruster, Appellee, v. City of Middletown, Appellant.
    (No. 874
    Decided March 8, 1944.)

      Mr. C. W. Elliott, for appellee.

      Mr. Fred J. Schatsmann, for appellant.
   Matthews, J.

This is an appeal from a judgment of the Common Pleas Court finding that the cause of' removal of the plaintiff as a police officer of the city of' Middletown was insufficient and for that reason setting aside the finding of the civil service commission of the city, affirming-the action of the commission of the city, dismissing the plaintiff from his office.

The record shows that the plaintiff had been a member of the police department for ten years on September 23, 1942, when the chain of incidents, which was the predicate for his removal, began shortly after four o’clock in the morning. He testified that at that time-he and Bryan Dineen, another police officer, were patrolling the streets in a certain district of the municipality when they noticed that the fire escapes on the-building of the Eagles lodge in Eagle alley were not in proper position, in that they were down as though in use. That circumstance caused them to investigate. The plaintiff went up the fire escape and found a door,, leading from the fire escape into an upper story of the-building, slightly ajar. He was on the fire escape near the upper door and Dineen was in the alley near the-lower end of the fire escape when Landon Webb, another police officer, came along and found them in that position. The plaintiff and Dineen told Webb what they had discovered and the three proceeded to enter and search the building. They found that the top sash of a window on the second floor was down, and that this window had no lock. They made a rather complete search of the lodge ro.oms, the bar and the refrigerator, but found nothing to indicate that any crime-had been committed. They then closed the window, locked the door, descended the fire escape, and lifted the lower section of the fire escape so that it would not form an obstruction to travel. Plaintiff and Dineen together then proceeded on. their task of patrolling; the streets, and Webb proceeded to join his companion officer in the vicinity.

Neither the plaintiff nor Dineen reported this incident to the police department until the chief of police, having learned about it from another source, called them before him on September 26, 1942, after 9:00 p. m., and questioned them, when they gave this version of the incident.

Webb testified about discovering plaintiff and Dineen in Eagle alley, that he went with them into the building and took part in the search, that everything seemed to be in order, that there was a bag of money in the refrigerator, that he left the refrigerator shortly before the plaintiff and Dineen did, find that as they were leaving the building plaintiff and Dineen said to him, “We did not find the place open, understand. And you keep your mouth shut.” However, he reported the incident to officer Martz who was his superior.

Two employees of the Eagles lodge testified that, during the day of September 23, they discovered two quarts of whiskey, seven and one-lialf cartons of cigarettes and one flash light were missing, of the total value of between fourteen and fifteen dollars. This was reported to the police department, and officer Davis came to the lodge and made an inspection of the premises and advised that a lock be placed on the window. Officer Davis reported it and it was entered on the daily report sheet under the caption “Breaking and Entering.” While there is some dispute as to when this entry was made, its position with reference to other entries seems to make it clear that it was entered on September 24.

The record makes it clear that there was a rule of long standing which made it the duty of police officers to report suspicious incidents coming to their attention while patrolling, and that these incidents were placed in writing and kept where all officers could read them, and that it was the duty of all to read them.

The plaintiff and Dineen explained their silence on the subject by the statement that they considered the incident trivial, and that when they saw on the daily report sheet that a burglary of the same place on the same night had occurred, they thought too much time had elapsed to make their report of any value.

There was no arrest of any one on the charge of stealing the missing articles.

The chief of police recommended to the commission of the city — the appointing authority — -that both the plaintiff and Dineen be discharged for incompetency,, inefficiency, and gross neglect of duty; and after a hearing, the commission ordered their discharge on those grounds. Plaintiff and 'Dineen appealed to the civil service commission which, after a full hearing,, found them guilty as charged, and that the penalty was-not too severe; and it affirmed the action of the appointing authority in dismissing them.

The plaintiff and Dineen appealed to the Common. Pleas Court, where the case was heard on the same evidence that was presented to the civil service commission. The court analyzed the evidence and concluded’ that “while the court cannot conclude but that such, investigation disclosed sufficient facts to have been reported, yet certainly the slight infraction of not making such report would not be sufficient cause of removal, especially of one who had been in the service for some ten years without complaint.” In conclusion the court found that the charge proven did not constitute sufficient cause for removal and reversed the decision of the civil service commission, affirming-the action of the commission of the city made on the-recommendation of the chief of police. That is the-judgment from which this appeal was taken.

A fair statement of the cause of removal as disclosed by the evidence is that the plaintiff was guilty of a wilful and deliberate suppression of evidence tending to prove the unlawful breaking and entering of a building in the night season with intent to commit a crime. When we consider his reason for so doing, that it was not of sufficient importance for disclosure, in the light of the fact that both he and Dineen thought the circumstances to be suspicious enough to justify them in entering a private building in the night season, the invalidity of the excuse becomes apparent. Even though their search in the buliding failed to disclose any obvious evidence of crime, that did not neutralize the suspicious circumstances that caused them to embark on the search of the building. Furthermore, when they learned that a theft had been reported by the occupant of the building, the importance of the evidence possessed by them, if not previously realized, should have become so apparent as to be obvious to any one.

In view of the fact that the plaintiff had had ten years experience as a policeman and certainly knew the rule of the department requiring reports and should have known of the necessity of pooling all information even in absence of any express rule on the subject, the conclusion is inescapable that the suppression was the result of intent rather than an omission of innocence or mere neglect. Certainly, a reviewing tribunal, not having the advantage of seeing the plaintiff and witnesses, cannot say that the tribunal which did have that advantage was unreasonable in reaching such a conclusion. That is what the appointing authority found and that was the finding of the civil service commission. .

On appeal to the Common Pleas Court from such a finding, the jurisdiction of that court, conferred by Section 486-17a, General Code, is limited to an inquiry “to determine the sufficiency of the cause of removal.” While there have been differences in terminology in phrasing the function of the court under this section, there has been no difference in thought. The second paragraph of the syllabus to Kearns v. Sherrill, City Manager, 137 Ohio St., 468, 30 N. E. (2d), 805, is:

“The jurisdiction of the Court of Common Pleas in such case is special and limited, by the terms of the statute, ‘to determine the sufficiency of the cause of removal.’ Where facts which constitute ‘sufficiency of the cause of removal’ are established by the evidence and found by the court, the trial judge may not arbitrarily reinstate such officer to his position and restore his emoluments of office from the date of his discharge on the ground that in his opinion the punishment prescribed is too severe and he is without authority to modify it.” '

And at page 472 the court said:

‘ ‘ Had it been intended by the law-making branch of the government that the Common Pleas Court should act as if ‘sitting as the entire civil service commission and also as the city manager,’ as apparently was assumed by the common pleas judge hearing the appeal, the Legislature undoubtedly would have found it possible to employ language conferring such broad power. ’ ’

In the opinion of the Court of Appeals (63 Ohio App., 533, 541, 27 N. E. (2d), 407) in the same case, we find this:

“It is clear that the Common Pleas Court could not have been vested with power in an original action to exercise the executive or administrative discretion of determining whether under all the circumstances the patrolman should be retained in office, after it is determined that good and sufficient cause for his removal had been found to exist, and tested by that rule, it is equally clear tliat it cannot be vested with such jurisdiction on appeal from an administrative tribunal.” See, also, State, ex rel. Stewart, v. Reed, Mayor, No. 6324, Hamilton County Court of Appeals.

Now whether the hearing in the Common Pleas Court is described as a hearing de novo or otherwise, it is clear that its jurisdiction is “special and limited,” and whether that special and limited character is imposed by the Constitution or the statute or both does not affect its extent. It does not include the function of “sitting as the entire civil service commission” and also as the appointing authority, either or both.

By Section 486-17a, General Code, incompetency, inefficiency, neglect of duty, or any other act of misfeasance, malfeasance, or nonfeasance in office are made grounds for removal. And it need not be evidenced by a course of conduct. One act or omission is sufficient. State, ex rel. Hardesty, v. Wells, Dir., 121 Ohio St., 139, 167 N. E., 362.

We are of the opinion that the record shows substantial evidence of neglect of duty and nonfeasance in office; that there is no evidence that the appointing authority acted in bad faith or from any motive other than the enforcement of proper discipline in the department; that the civil service commission’s finding that the appointing authority had sufficient cause for removal of the plaintiff is amply supported by the evidence; and that the Court of Common Pleas erred in reversing such finding.

For these reasons, the judgment of the Court of Common Pleas is reversed, and the finding of the civil service commission is affirmed.

Judgment reversed.

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

(No. 874 — Decided May 19, 1944.)

On Rehearing.

Matthews, J.

While the application for rehearing sets forth one ground, other than those based on State, ex rel. Arey, v. Sherrill, City Manager, 142 Ohio St., 574, 53 N. E. (2d), 501, upon which the plaintiff conceived he was entitled to a rehearing, the application was granted solely because it was fairly debatable whether that case did not require a conclusion contrary to that announced in this case. Suffice it to say as to the other ground that no new reason or authority has been presented and we adhere to the conclusion reached for the reasons set forth in our opinion. We shall confine this opinion to a consideration of the scope of the decision in the Arey case and the effect of its application to the facts of this case.

In the Arey case there was invoked the original jurisdiction in prohibition of the Supreme Court, to restrain the city manager of the city of Cincinnati from an alleged usurpation of power to hear and adjudge charges against a police officer of that city. The existence of the office of city manager was never challenged. The extent of his jurisdiction was the sole issue. The case was heard on the pleadings, in which it was alleged and admitted that there was an existing Cincinnati municipal government; that there was an office called city manager;'that the respondent occupied that office; that there was a department of public safety administered by a director of public safety; and that the city manager was assuming to hear and determine the charges preferred against the relator by the chief of police.

On that record, the existence of the various offices was not an issue. The existence of the office of city manager being admitted, the question was whether the respondent, as the incumbent of the office and under color thereof, was assuming to exercise an authority judicial in nature not lawfully attached to the office.

In contrast to that case in which the authority of the city manager was challenged, in limine, by a direct proceeding in prohibition, the plaintiff in this case submitted without protest to the jurisdiction of the city commission of the city of Middletown to hear the charges preferred against him, then appealed to the municipal civil service commission, and then to the Common Pleas Court. Only after a decision adverse to him by this court, on application for a rehearing, did he raise the issue of the jurisdiction of the city commission of Middletown and its civil service commission.

There is nothing in the majority or concurring opinion of the court in the Arey case that can be construed as showing an intent to strike down the entire municipal government, because the people had attached a power to one office thereof, which, in view of a conflict with a state law, could not, under Sections 3 and 7 of Article XVIII of the Constitution, be exercised by the incumbent, so long as the state law continued unrepealed. This is manifest from the entire tenor of the opinion and such a wide scope is excluded by the language of the sixth paragraph of the syllabus, which reads as follows:

“Where a charter of a municipality and an administrative code enacted under authority thereof grant to a municipal officer, called a city manager, power to appoint, dismiss, suspend and discipline all officers in the administrative, service (which service includes members of the police department), such provisions in the charter and administrative code cannot prevail as against the provisions of the General Code; and a police officer, suspended for the claimed violation of certain rules of the police department, has a right to insist that the director of public safety inquire into the cause of such suspension and render judgment thereon regardless of such provision in the city charter or administrative code.”

To assume that the Supreme Court entertained such a devastating purpose would attribute to it, an intent to overrule, without mention, a long line of prior decisions sustaining cle facto officers against collateral attack.

If we take judicial notice of the entire framework of the municipal government, as we must do in order to conclude that this question is presented at all, we find that the people of Middletown have lived under this charter for more than thirty years and the state has never challenged its right during all of that time and, presumably, is satisfied to permit it to continue. Under such circumstances, has a private citizen, asserting a personal right and not assuming to act for the public, the capacity to question the de facto authority of the officers created by the people originally and acquiesced in for so many years? We think the Ohio authorities are clear that he has no such power.

Under the Constitution of 1802 there was no requirement that general laws should have a uniform operation throughout the state. There was no provision as to the manner of creating corporations or of conferring corporate powers. As a result, innumerable special acts granting corporate charters and conferring corporate power, and acts having only local application, were passed. The confusion thus created was regarded as a great evil and was one of the chief reasons for calling the convention of 1851, in which it was provided that no special act conferring corporate power should be passed; that corporations should be organizecl under general laws, subject to be repealed, altered, or amended at the pleasure of the Legislature; and that all laws of a general nature should have a uniform operation throughout the state.

Notwithstanding these sweeping provisions, the General Assembly, yielding to the insistence of the populous areas for local self-government, almost immediately devised a method of classification of municipalities, which it was hoped conformed to the Constitution, and by which the demand of specific localities could be satisfied. This classification was followed by laws, general in terms, applicable to all corporations of a given class. As time went on and the demands for special powers arose the classification statute was amended by increasing the divisions, so that by 1900 it was entirely possible to confer corporate power upon a single municipality, and it became the fashion to do so as to the more populous ones.

This method of constitutional evasion was never universally accepted. As was said by Judge Shauck, in State, ex rel. Knisely, v. Jones, 66 Ohio St., 453, 484, 64 N. E., 424, 90 Am. St. Rep., 592:

“That there has long been classification of the municipalities of the state is true. It is also true that while most of the acts conferring corporate powers upon separate municipalities by a classified description, instead of by name, have been passed without contest as to their validity, such classification was reluctantly held by this court to be permissible.”

And while the general statute had been reluctantly acquiesced in, or at least, a condemnatory decision avoided, the court had declared specific statutes, predicated upon the- classification, to be unconstitutional. Costello v. Village of Wyoming, 49 Ohio St., 202, 30 N. E., 613; City of Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284, 43 N. E., 490.

Encouraged by the state of the decisions as to the constitutionality of such statutes, the defendant in State v. Gardner, 54 Ohio St., 24, 42 N. E., 999, 31 L. R. A., 660, raised the constitutional issue as a defense to an indictment for offering a bribe to a commissioner of the city of Akron, a municipal corporation organized under a statute of the type later declared unconstitutional. He was discharged and, on proceedings in error, the Supreme Court sustained the exceptions of the state, on the ground that the constitutionality of an office could not be thus raised, collaterally. The subject was considered at great length. The conclusion is stated at page 33 of the opinion, as follows:

“We think that principle of public policy, declared by the English courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though, we think such- officers might aptly be called ‘de facto officers.’ * * *

“Courts in the practical administration of justice should regard the substance of things and deal with conditions as they actually exist. Here are grave and important official acts actually performed by virtue of an office, created under the provisions of a statute regularly enacted by that branch of the government to which the power to make law has been delegated by the Constitution; there is a clearly established legal presumption of its validity. The public in its organized capacity as well as private citizens has acquiesced in and submitted to their authority.” '

What was said in that case is applicable with greater force to the facts in this case, in which the people have acted under clear constitutional authority. Only that part of the corporate structure created by them which comes into conflict with statutes can not be given effect, and even as to that part it remains capable of operation upon the removal of the statutory impediment.

The Supreme Court finally, in proceedings by the state in State, ex rel. Knisely, v. Jones, supra, and State, ex rel. Atty. Genl., v. Beacom, 66 Ohio St., 491, 64 N. E., 427, 90 Am. St. Rep., 599, denounced as unconstitutional the conferring of corporate power based on classification. In the latter case it did not treat the existing offices based on the invalid conferring of power, as nonexisting. On the contrary, it suspended execution of its judgment for more than three months, so that the incumbents of such offices could continue to function until the Legislature could convene and properly remedy- the situation. And the de facto officers continued to act under the new law passed and their acts both before and after were never questioned.

In 28 Ohio Jurisprudence, 47, Section 16, it is said: “The doctrine of the de facto existence of corporations is applicable to municipal as well as to private corporations.” See, also, 32 Ohio Jurisprudence, 1084, Section 230 et seq.

In City of Albuquerque v. Water Supply Co., 24 N. M., 368, 174 P., 217, 5 A. L. R., 519, it was sought to invalidate the acts of officers of a municipality organized under an alleged unconstitutional statute, by the application of the aphorism, that there cannot be a de facto officer without a de jure office. The court rejected the contention, and, after an exhaustive discussion, held as stated in the syllabus :

“A municipal corporation, created under an unconstitutional charter, is a de facto corporation, and its officers are de facto officers. The existence of the corporation, and its right to make contracts and transact business as such corporation, cannot be raised collaterally. The existence of such municipality can only be questioned by the state in a direct proceeding instituted by the Attorney General for that purpose, and until the question is thus raised, and an adjudication had, ousting the corporation from exercise of the franchise, all acts done and contracts made by the officers of such a- de facto municipality are as valid and binding upon it and the property within its limits as though such officers were de jure officers of a de jure corporation.”

Much of the doubt and confusion on this subject has resulted from the sweeping language in the opinion in Norton v. Shelby County, 118 U. S., 425, 30 L. Ed., 178, 6 S. Ct., 1121. In refusing to follow it to its coldly logical conclusion, the Supreme Court, in Chicot County Drainage District v. Baxter State Bank, 308 U. S., 371, 374, 84 L. Ed., 329, 60 S. Ct., 317, said:

"The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U. S., 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U. S., 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to -invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. ’ ’

Our conclusion is that the city of Middletown has a de jure corporate existence with authority to act through its officers in all respects, except where there is a conflict with existing statutes; that it has had a de facto government in all respects in accordance with its charter since its adoption in 1913; and that the de jure existence of the corporation,-its offices and its officers can be determined only in a direct proceeding by the state, and are not an issue in an action involving private rights, as in this case. We find nothing in the Arey case that militates against this conclusion.

For these reasons, we adhere to our conclusion previously announced.

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


author: Geiger, J.

text:
    Powell, Appellee, v. Powell et al., Appellants.

      (No. 3727
    Decided June 1, 1944.)

      Messrs. Eagleson & Laylin, for appellee.

      Mr. Wm. E. Jones, for appellant, Wm. K. Powell.

      Mr. James M. Butler and Mr. Saul Morton Isaac, for appellants, trustees.
   Geiger, J.

This matter is before this court on appeal from an order of the Court of Common Pleas, Division of Domestic Relations. The matter involved is really confined to the question as to whether the court erred in allowing temporary alimony, and to the further question as to whether the court allowed an excessive sum.

The petition is lengthy, but may be summarized as showing that the plaintiff and defendant Powell were married in 1913; that the Huntington bank and certain trustees are trustees of a spendthrift trust established by Frank E. Powell for the benefit of the defendant William K. Powell.

It is asserted in the petition that for more than eighteen years the defendant Powell has abandoned plaintiff without cause, and cruelly neglected and disregarded his marital duties. It is asserted -that the parties lived together happily from 1913 to 1920, when they were necessarily separated and the home broken by reason of the serious illness of the defendant, William; that during such defendant’s illness the plaintiff contributed all that she could for his care and comfort; and that, since his recovery in 1925; the defendant Powell has failed to re-establish the home or to renew marital relationship and has wholly neglected to provide for the plaintiff or to furnish her support or the common necessities of life, so that she has been compelled to support herself from her own resources and to rely upon the charity of her relatives and friends.

It is alleged that the defendant Powell is now and since 1939 has been possessed of property of substantial value, the legal title to which and the control of which has been during such time fixed in the trustees of the spendthrift trust provided by his father’s will. It is asserted that it is the duty of the trustees to provide the defendant Powell with sufficient income within the amounts available, to maintain plaintiff in accordance with her station in life, or to apply a sufficient amount of the income of the trust, fund directly to the maintenance of the plaintiff as the wife of the beneficiary of the trust. It is further asserted that the in-' come from the trust is more than $25,000 per year, of which sum William K. Powell has been receiving, through the trustees, approximately $12,500 annually, of which plaintiff has not received anything either directly or indirectly, from either William K. Powell or from the trustees. The trustees have accumulated $70,000 undistributed income from the trust estate, and William has lived in comfort while the plaintiff has been reduced to penury. The prayer of the petition is that alimony for her sustenance and expenses during the pendency of the suit be granted her out of the property and income of William K. Powell, that the trustees be ordered to provide such temporary alimony, that on final hearing she may be decreed a reasonable allowance for alimony out of the property and income of William in an amount comparable to the amount received by him, that the trustees be ordered to pay such permanent alimony directly to the plaintiff, and that the' plaintiff may have further relief for costs, including attorney’s fees.

There is filed with the petition a copy of the last will and testament of Frank E. Powell which is long and involved and which has five rather complicated codicils, largely dealing with the spendthrift trust established by the father for William. There is no provision in the will or in the codicils that the trustees shall be required to pay any sum to William for the support of his wife, neither does the will prohibit the application of any of the funds so produced, to the care of the wife.

The petition was filed on February 5, 1944, and on February 16, 1944, there was filed a motion of plaintiff for temporary alimony and for maintenance and support and expenses during the pendency of the suit out of the property and income of William and for an allowance of a sum comparable to the amount paid by the trustees to her husband. She also asks for $1,000' for expenses and that the bank and the trustees be ordered to pay to the plaintiff such sums or such amount as the court may deem just and proper.

It is also stated that the consideration of the payment of counsel fees may be deferred.

The trustee of the bank filed a memorandum quoting the provisions of the will and taking the position that at that time there should be no order made to compel the trustees to pay temporary alimony.

On March 1st the wife filed an affidavit in support of her motion for temporary alimony pendente lite, which is a restatement and an elaboration of the allegations made in the petition. In such affidavit it is stated that the cash income received from the trustees of the trust created under the will of Frank E. Powell for William K. Powell, from August 9,1939, to February 1944, was $117,222.65, of which there had been paid to William K. Powell up until February 9, 1944, the total of $44,187.99, leáving an undistributed reserve for the benefit of William of $73,034.66, as of February 9,1944. It is further stated in the affidavit that from that source alone of trust funds'William has been receiving cash payments from the trustee in excess of $12,000 per year, leaving still greater amounts in the trust available. It is asserted that in addition to the cash payments William K. Powell was provided with a home. It is asserted that plaintiff has been compelled to rely upon gratuities from her friends and relatives, that she has in addition incurred unpaid debts for her necessary maintenance in excess of $5,000, and that she is without home or income. In the motion she asks the court for an order directing the payment to her from either William TL Powell or the defendant trustees or both, a sum comparable to that having been paid by the trustees to her husband.

Much of the controversy and argument of counsel revolves around the point raised by the trustees that the court has no right to order them to pay from the trust fund any sum for the support of the wife, it be-, ing maintained that under the provisions of the will relating to the trust fund the amount to be paid to William is entirely within the discretion of the trustees and that there is no obligation on the part of the trustees to pay any portion to the wife or to contribute to the same.

William K. Powell filed an affidavit largely devoted to disputing and denying the allegations of his wife’s petition in relation to the care that she gave to him during his sickness. Counsel for the defendant Powell made a request for a separate finding of facts and conclusions of law. The trustees filed demurrers, which seem not to have been passed upon by the court.

The matter was presented to the court and the bill of exceptions which is filed is largely made from the colloquy between counsel and the court and does not appear to present any factual question except the filing* of the petition, together with the affidavit of the plaintiff and the affidavit of the defendant Powell.

Counsel for the defendant, William K. Powell, in his argument and briefs and colloquy with the court stressed the facts that there was no evidence submitted justifying the court in fixing the amount of alimony to be paid to the plaintiff pendente lite-, that there was no showing that the defendant Powell was possessed of any sufficient funds out of which alimony might be paid. During the trial the court stated:

“I will fix an amount here which I believe to be reasonable based upon his income and ability to pay and upon the amount necessary to support her pending the hearing of this case. On the final hearing we will of course have an entirely different question, but at this time we have only the question of temporary support.” “I think I have a right to take into consideration at this time all those things mentioned by counsel for plaintiff in fixing a temporary amount.”

In speaking of the claim for $5,000, the obligation of the plaintiff, incurred during the separation, the court stated:

“The adjudication of that claim would have to remain until final bearing because that would depend some upon tbe aggressions in this case. If tbe aggressions were on ber part it might make an entirely different picture.”

Tbe court thereupon made tbe entry, from which an appeal is procured by tbe defendant, Powell, reciting that tbe case came on to be beard on tbe question of temporary alimony; that affidavits have been submitted by both parties; and that tbe same have been orally argued to tbe court. Tbe court then finds:

“Tbe court without considering tbe statements objected to upon tbe part of tbe defendant, finds from the affidavits, pleadings and admissions by counsel in open court, ‘that the parties were married as set forth in tbe petition; that they have been and are residents of tbe state of Ohio and Franklin county; and no children have been born of this marriage, and that tbe parties are and have been for some period of time living separate and apart.’ Tbe court further finds.that during tbe past several years tbe defendant has received and bad an income of approximately $12,000 per year and has bad such income up to tbe present time and there is no evidence offered on tbe part of tbe defendant that be is unable to pay to bis wife temporary alimony in tbe amount of $100 per 'week which tbe court finds is a reasonable amount for ber support pending this case.

“Therefore it is ordered that tbe defendant pay tbe sum of $100 per week (payable weekly) as alimony pendente lite, as of tbe date of February 5th, date of filing tbe petition. Tbe question of expense money tbe court reserves for further consideration.”

Tbe defendant Powell, appellant herein, filed assignment of errors as follows:

1. Error of tbe court in overruling tbe separate objections of tbe defendant Powell (appellant) to admission and consideration by the court of the statements enumerated in the petition and affidavit of plaintiff.

2. In failing and refusing to “state in writing the conclusions of fact found separately from the conclusions of law” within the meaning and purport of Section 11421-2, General Code.

3. The overruling of the motion for a new trial.

As to the first assignment of error it will appear that 'counsel and the court considered the matters presented to the court through the petition, the motion, the answer of Powell, and statement of counsel for the bank and the trustees touching their position in reference to' the spendthrift fund. It' would be impossible to segregate that portion of the facts considered by the court as exhibited by the pleadings, from the discussion and admission of counsel. The bill of exceptions, while not enlarged, involves much that might be said to be admission of counsel as distinguished from evidence. This usual condition arising in applications to fix temporary alimony and in the case at bar, we do not believe there was prejudicial error in considering all those mattérs shown rather informally admitted, and assignment No. 1 will be overruled.

Assignment No. 2 is for the refusal to state in writing the conclusions of fact separately from the conclusions of law. The court did state his conclusions of fact and also his conclusions of law and while they may not have been distinctly separated, yet it is quite easy to determine that the court did arrive at certain conclusions of fact which he announced separately from his conclusions of law.

Assignment No. 2 will be overruled.

Assignment No. 3 need not be discussed except to say that we perceive no error in the court’s overruling the motion for a new trial. It seems to us that so simpie a matter as fixing temporary alimony has been over-emphasized in this case and largely over-briefed. It is the ordinary and simple procedure of trial courts. It is asserted that the amount allowed, to wit, $100 per week is excessive. We do not so find. It does appear that for a period of years the defendant Powell has had an income of more than $12,000 per year, which did not exceed the income of the father’s estate devoted to his support, the estate being in excess of $2,000,000. As a reviewing court, we cannot say that an allowance which does not show an abuse of discretion should be reviewed or altered by this court. The court has very properly stated that the matter of a temporary alimony may be modified when the court has had an opportunity to hear the case. It does appear to us that this woman for more than fifteen years has been rather shabbily treated by her husband who has had a generous income.

The whole matter presented by the trustees, as to whether the spendthrift trust could be subjected to an order of the court, is avoided by the fact that the court has made no order requiring the trustees to do anything in spite of the fact that the petition asked for such an order. The court has gone on the theory that the defendant Powell has funds sufficient to carry out the order of the court. Counsel for the bank and the trustees have asserted that they know of no reason to anticipate that the trustees will cut down the amount heretofore allowed by them, which does not begin to exhaust the fund which might be applied to the support of William.

For the present the question of whether the court can compel the trustees to pay sufficient to care for the alimony provisions in favor of the wife is not before the reviewing court, and we are not obliged to make any ruling upon that point, if it ever becomes a point.

Tbe order is affirmed and tbe cause remanded.

Order affirmed.

Barnes, P. J., and Hornbeck, J., concur.


author: Ross, P. J. Matthews, J.,

text:
    Champs, Appellant, v. Stone, Appellee.
    (No. 6379
    Decided March 27, 1944.)

      Mr. Louis R: Schear, for appellant.

      Mr. Walter W. Harris, for appellee.
   Ross, P. J.

This is an appeal on questions of law from a judgment of tbe Court of Common Pleas of Hamilton county, in favor of tbe defendant, entered upon a verdict which such court instructed after tbe opening statement of counsel for plaintiff and bis stipulation as to what bis evidence would show.

“Mr. Sebear: If tbe court please and ladies and gentlemen of tbe jury, tbe action here is one for personal injuries. We make in our case no claim of any damages that resulted' as a loss of time. Our action, as I stated to you before, is one based upon a so-called malpractice action, a case of a patient against a physician.

“Our case sets forth that the defendant in the case represented himself as a duly qualified physician in this vicinity by signs and other, means, and that the plaintiff as a patient accepted the invitation extended to the public by the defendant, the doctor in the case, and called upon him for treatment.

“And that this was somewhat around the latter part of 1941 or the early part of 1942, and that a treatment was administered with a needle, that is, I refer to it as a needle, the needle the doctor or physicians use. That at that time the defendant doctor advised the plaintiff that it was necessary to return to take a series of injections, constituting a series of ten injections. That at that time the plaintiff in this case was contemplating, or it was around the time he was to be married, or was married. The evidence will disclose that his purpose of the call was originally for the blood test and that the doctor advised him it was necessary to follow through with a series of injections.

“I believe the evidence will show to you ladies and gentlemen of the jury that the plaintiff did return to the doctor; that the doctor was so grossly intoxicated and under the influence of alcohol that he could (not) comprehend to carry through a proper treatment. In other words, he was physically unfit to administer any aid to a patient'.

“I believe the evidence, ladies and gentlemen, will show you that the plaintiff protested about the doctor going forward, but nevertheless, he did go forward and he was unable to make a proper injection, and that he did inject the needle into the skin and flesh and that blood then came profusely from the arm of the plaintiff and that a swelling and a growth continued upon liis right arm where the needle was inserted just about between the -hand and the forearm, and that growth was quite large in size; that it lasted for some period of time and that thereafter the plaintiff returned to the defendant and that the defendant advised him that he could do nothing for him, and that thereafter the plaintiff was treated by another physician, and that still later another physician treated him.”

It is also stated in the bill of exceptions:

“That is what we are here for today and asking you ladies and gentlemen to determine.

“Mr. Harris: If the court please, I move for judgment on the opening statement of counsel.

“(Thereupon the jury was excused from the court room and counsel for plaintiff and counsel for defendant argued the' motion to the court, after which the jury was returned to the court room and resumed their seats in the jury box, and the following proceedings were had:)

“The Court: Ladies and gentlemen of the jury, this is going to be a very short case and you are going- to have nothing to do. Some of you were before me yesterday and I said I hoped the next time you were before me you would have to do the work and I would not have it all to do.

“It is agreed in this case as follows: That the plaintiff went to the defendant for the purpose of having a blood test made by the defendant physician; that the defendant at said time was grossly intoxicated; that the plaintiff saw that the defendant was grossly intoxicated and refused to be treated by him; that the defendant insisted upon treating the plaintiff and the plaintiff submitted to being treated by him, and that the plaintiff claims that as a result of the treatment, which was improper and not according to what an ordinary physician — -that by reason of not exercising the skill a physician should exercise he was damaged.

“Mr. Harris: We agree that would be the plaintiff’s' testimony.

“The Court: Yes, of course.

“On the opening statement, the defendant moves for a directed verdict and I grant that motion pn the ground that if I myself take the chance of being treated by someone whom I.ought not take the chance of being-treated by. In other words, if I go to a doctor who is drunk and I know he is drunk and let him treat me because he insists on treatment (treating) me I take the consequences thereof and that is my own fault, in plain language, and I am guilty of negligence in law which contributes to a proximate cause of an injury. That is the reason why I direct you all to sign the verdict. * * *”

The questions presented here are: Whether such conduct on the part of the plaintiff constituted contributory negligence as a matter of law, or an assumption of the risk presented by the physician’s condition.

Contributory negligence is such an act or omission on the part of the plaintiff, constituting- a failure to exercise the care which ordinarily prudent persons aré accustomed to employ for their own safety, which, concurring or co-operating with the negligent act of the defendant is a proximate cause or occasion of the injury of which the plaintiff complains. 29 Ohio Jurisprudence, 527, Section 87.

Paragraph two of the syllabus in the case of Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Lee, Admr., 111 Ohio St., 391, 145 N. E., 843, is:

“In an action involving- the negligence of the defendant and contributory negligence of the plaintiff when, giving to every portion of the plaintiff’s evidence the most favorable interpretation in favor of the absence of negligence on his part, such evidence under such interpretation is susceptible of no other reasonable inference than that of negligence on his part, directly contributing to his injury, the question of contributory negligence ceases to be a question of fact for the determination of the jury, but, for the purposes of the case, becomes an uncontroverted fact for a declaration by the court of the law applicable thereto. It is the duty of the court in such case to direct a verdict. ’ ’

It is not contended by plaintiff that the defendant physically overpowered him, alhough it is apparent that the defendant overpersuaded plaintiff to submit to treatment.

It is claimed the intoxicated condition of defendant was the proximate cause of plaintiff.’s injuries. Such ■condition was apparent to plaintiff before he permitted the defendant to inject the needle in his arm. Had the plaintiff the right to rely upon the skill of defendant when grossly intoxicated? Plaintiff must have •concluded that, although defendant was in such condition, he could still administer treatment without harmful results to him. Could reasonable minds differ •on the conclusion that reasonably prudent persons would not permit a physician to act under such circumstances ?

It would seem that any reasonable person would naturally ask: Why did you let the physician proceed? Why did you not at once leave his office? You certainly saw he was in no condition to use a needle upon you.

It must have been apparent to any reasonable person'that the physician in such a condition might even select the wrong drug or inject an overdose. The fourth paragraph of the syllabus in the case of New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St., 395, 185 N. E., 542, 87 A. L. R., 884, is:

“In an action for damages for personal injuries, where plaintiff’s own testimony will warrant no inference but that his own want of due care contributed proximately to causing the injury, there can be no recovery, and a motion directing the jury to return a verdict for the defendant should be sustained.”

The only possible argument against the conclusion that plaintiff was either guilty of contributory negligence or assumed the risk of the physician’s evident incapacity to properly perform his duties is that, under any such circumstances a patient has the right to' rely upon the professional representation of ability contained in the fact that the phsyician holds himself out as such and insists upon his ability to properly practice his profession.

Such implied ability and even definitely professed ability certainly may not be accepted by a patient in the presence of “gross intoxication” of which plaintiff' is fully aware. Ordinary care for one’s safety would, impel the ordinary careful and prudent person to seriously doubt the physician’s ability and cause the patient to refuse treatment.

The judgment of the trial court is affirmed.

Judgment affirmed.

Hildebrant, J., concurs.

Matthews, J.,

dissenting. Manifestly, the plaintiff concluded that the defendant was not so drunk as to preclude him from safely performing the injection by means of a hypodermic needle. The defendant, by holding himself out as a physician, represented that he had the required training and skill, and, at the time of this treatment, represented that he was in such physical and mental condition as to enable him to apply his training and skill. He occupied the dominant position in relation of trust and confidence. I do not think we are justified in holding that the patient was negligent as a matter of law in relying on the physician’s assurance that he was in condition to safely use a hypodermic needle.

It is my opinion that the opening statement of counsel was a sufficient statement of a cause for submission to the jury, and that the court erred in instructing a verdict for the defendant upon such statement.


text:
    Thompson Heating Corp., Appellant, v. Hardware Indemnity Ins. Co. of Minnesota, Appellee.
    (No. 6369
    Decided February 28, 1944.)

      Mr. Leo J. Brumleve, Jr., for appellant.

      Messrs. Dolle, O’Donnell & Gash, for appellee.
   Hildebrant, J.

Plaintiff was the insured in two policies of indemnity insurance, one a public liability policy, issued by Liberty Mutual Insurance Company, indemnifying generally any operation in which plaintiff was engaged, the other issued by defendant, being an automobile liability policy indemnifying against bodily injury, etc., for loss sustained by reason of the ownership, maintenance, and use of a certain truck. Each policy contained a proportionate liability clause.

Plaintiff is engaged in the retail and wholesale furnace and stoker business, and, as an incident thereto, purchased an especially designed, built, and equipped truck, having a van body, upon the sides of which appeared in large lettering the name of plaintiff company and certain advertising as to rock wool insulation. The truck was specially designed for transporting rock wooi insulation in bats and bags and was equipped with a bolted on or permanently attached blower machine for the purpose of unloading the bags of granulated rock wool insulation by breaking them into the hopper and blowing the contents into place in a particular building by means of a hose extending* from the truck attachments into the building.

A pedestrian suffered serious injury occasioned by tripping over the hose extending from the parked truck across the sidewalk into the building, into which the granulated rock wool insulation was being blown.

On notice, defendant denied coverage of the risk. The Liberty Mutual Insurance Company acknowledged liability and loaned plaintiff the money to effect a settlement with the injured party, under a written agreement, whereby plaintiff became obligated to test defendant’s proportionate liability, if any, by suit.

At the close of all the evidence, both parties moved for a directed verdict. The trial court granted defendant’s motion and this is an appeal on questions of law from the judgment entered on the verdict thus returned.

The prime question in the case is whether by its terms the policy issued by defendant comprehends the risk of the happening under the circumstances here present.

Under the heading “Insuring Agreements,” the policy provides:

“To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons, caused by accident and arising out of the ownership, maintenance'or use of the automobile.”

Item 5, page 1, provides:

“The purposes for which the automobile is to be used are:

“ (a) The term ‘pleasure and business’ is defined as personal, pleasure, family and business use.

“ (b) The term ‘commercial’ is defined as use principally in the business occupation of the named insured as stated in item 1, including occasional use for personal, pleasure, family and other business purposes.

“(c) Use of the automobile for the purposes staffed includes the loading and unloading thereof.”

The face of the policy discloses plaintiff’s occupation, described as “retail & wholesale furnaces & stokers,” the track is described generally only, but the actual cost including equipment is shown, and the premium charges are set forth.

The testimony shows the truck was insured on the same day it was acquired by purchase and was specially fitted and adapted as a complete unit for installation of insulation simultaneously with the unloading thereof.

In construing this policy, general rules for the construction and interpretation of written contracts are applicable. It is fundamental that the intent of the parties, when ascertained, will control. If not ambiguous or uncertain, the express terms and.plain language as ordinarily understood will be given effect as revealing the intention of the parties. If that intention be clearly revealed, there is no room for the application of rules of .construction necessary in searching for the meaning of ambiguous language. No new or changed contract is to be arrived at either by as-scribing finely drawn connotations to simple terms or by disregard for the simplicity or plainness of terms used. Counsel for both parties have furnished numerous citations, with which on their facts the court both agrees and disagrees, but none of which is dispositive of the case at bar.

The language of coverage quoted supra is all inclusive and utterly without qualification, loading and unloading are included, the truck is actually employed to house and support the blowing process and this court is of the opinion that the language is simple and clear and reveals the intention of the parties to insure the risk involved herein and incident to the normal use of the specially equipped truck.

The trial court based its decision on its finding of no coverage and while deeming it not essential to a decision went on to approve plaintiff’s right to proceed to a settlement of the personal injury claim on defendant’s refusal to participate and defend. With this view-, this court is in accord. Employers’ Liability Assurance Corp. v. Oles, 13 Ohio Law Abs., 436; 29 American Jurisprudence, 808, Section 1077; annotation, 71 A. L. R., 1479. The question of the good faith and reasonableness of the settlement was raised by the pleadings as an issue in the case, .with the burden of proof thereof resting upon the plaintiff. Jones, Exrx., v. Southern Surety Co., 210 Iowa, 61, 230 N. W., 381. Had the trial court definitely and clearly found the settlement to be a reasonable one, arrived at in good faith, this court would enter final judgment for the plaintiff. However, the record falls short of revealing such a finding with sufficient clarity to justify that action by this court.

The trial court further found no merit in the contention that the agreement between plaintiff and Liberty Mutual Insurance Company was champertous,. with which finding this court is in accord, and the-question as to the real party in interest has heretofore-been disposed of by this court. Thompson Heating Corp. v. Hardware Indemnity Ins. Co. of Minnesota, 72 Ohio App., 55, 50 N. E. (2d), 671.

The judgment is therefore reversed and the cause-remanded for further proceedings according to law.

Judgment reversed„

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