text:
    Booker, Appellee, v. The Industrial Commission of Ohio, Appellant.
    (No. 7704
    Decided April 13, 1953.)

      Messrs. Hoover, Beall, Whitman & Eichel, for appellee.

      Mr. C. William O’Neill, attorney general, and Mr. David V. Attig, for appellant.
   Matthews, P. J.

The record shows that the plaintiff filed her petition; that the defendant filed its answer and a certified transcript of the record of the proceedings had before it, including defendant’s denial of the plaintiff’s claim on rehearing, and the date thereof; that a trial was had; that a verdict that plaintiff was entitled to participate in the Workmen’s Compensation Fund was returned; and that a judgment was entered thereon.

This appeal is from that judgment. No bill of exceptions was filed and, therefore, we are not advised as to what took place at the trial. The transcript shows that motions for judgment notwithstanding the verdict, and for a new trial were filed, both of which were overruled by the court. Those motions are among the original papers on file in this cause. The basis of the motion for judgment was that, “upon the pleadings and upon the evidence received upon the trial,” defendant was entitled to judgment. The basis of the motion for a new trial was that the verdict and judgment áre not sustained by the evidence and are contrary to law; that there was error in the admission and rejection of evidence, and in the general charge; and that other errors were apparent on the record.

There is sufficient in the pleadings and record to disclose that the only issue raised by the pleadings and contested at the trial was the defendant’s denial that plaintiff was a dependent of the employee whose death had occurred in the course of his employment from a cause arising out of his employment.

In the briefs and on oral argument in this court, the only ground urged for a reversal of the judgment is that the record fails to disclose facts necessary to confer jurisdiction on the court. That contention is based on the fact that there is no allegation in the petition of the date of the final disallowance of the claim or of the receipt of notice of such disallowance by the plaintiff. It is claimed that this is a permanent defect rendering all the proceedings beyond the court’s jurisdiction and void. As there is no bill of exceptions, the claim is that conclusive proof at the trial that the action was commenced within 60 days of receipt of notice of disallowance of the claim would not cure the defect. Two Ohio cases are relied on.

The first of these cases is Gillen v. Industrial Commission, 59 Ohio App., 241, 17 N. E. (2d), 663, decided by this court. It is true that one of the contentions in that case was that there was no dispute as to the facts and that, therefore, no issue of fact for decision by either court or jury as to the jurisdiction to hear and determine the cause was presented. However, on examination of the record, the court found that the plaintiff had alleged in his petition the date of the dis-allowance of his claim and that he was filing his petition within 60 days thereof, which necessarily meant that he was filing it within 60 days of notice, and that the allegation as to the filing was conclusively proven by the court records, and, for that reason, there was no such issue of fact for decision and that its submission to the jury was erroneous and prejudicial. In the course of our discussion of that contention, we stated that we were of the opinion that if such an issue of fact existed we saw no error in submitting it to the jury for its determination. We did not then say and do not now say that it was necessary in any case to submit this issue to the jury. We had in mind Section 11380, General Code, which authorizes the court, in its discretion, to submit any issue of fact to a jury. Of course, unlike when litigants are entitled under the Constitution to have the issue of fact determined by a jury, the court is not bound by the finding even though supported by substantial evidence. It is advisory only. In Morgan v. Spangler, 20 Ohio St., 38, the court held, as stated in the fifth paragraph of the syllabus, that where an issue of fact is submitted to a jury in a chancery case, its findings are not to be regarded “as necessarily conclusive, but are subject to review by the court at its discretion.” This is in accordance with and an adoption of the chancery practice.

In 19 American Jurisprudence, 277, Section 404, it is said:

“The equity court may, in its discretion, set the finding aside and grant a new trial, it may disregard the finding and proceed to hear the cause and decide contrary to the verdict, or it may adopt the verdict partially and give it a limited effect. ’ ’

At page 278, Section 404, ibid., it is said:

“The verdict is not, however, a mere form; and it will be made the basis of the decree, unless the court sees good reason for rejecting it and making a decree against it. ”

Of course, where the issue relates to a fact upon which the jurisdiction of the court depends, no relief, can be awarded until that fact has been determined, but when the court in the Gillen case entered judgment on the verdict, it approved of the jury’s finding that the jurisdictional fact existed. However, as we found that there could be no dispute as to the existence of the jurisdictional fact in that case, the court had erred in submitting it as an issue for determination by the jury-

In Beach v. Union Gas & Electric Co., 130 Ohio St., 280, 199 N. E., 181, the facts were that the plaintiff at the time he was injured was an employee of The Union Gas & Electric Company, a self-instirer. Plaintiff filed an application for compensation with the Industrial Commission, and, upon its disallowance, brought an action within 60 days thereafter under Section 1465-90, General Code, to compel its allowance, naming the Industrial Commission as defendant. About two years thereafter, the plaintiff had The Union Gas & Electric Company made a party defendant, alleging in its amended petition that making the Industrial Commission defendant originally was through mistake. The Union Gas & Electric Company demurred to the amended petition. The trial court sustained the demurrer, the Court of Appeals affirmed the judgment and on appeal, the Supreme Court affirmed the judgment of the Court of Appeals, holding that, “where the period of limitation has expired between the suit’s commencement and the time the new party is brought in, such party may plead the limitation statute in bar of his liability. ’ ’

It is manifest that neither the Gillen case nor the Beach case involved the question presented in the case at bar.

By Section 1465-90, General Code, the commission is required within 10 days after the filing of its answer to ‘ ‘ certify to such court a transcript of the record of such rehearing.” The commission has construed the phrase, “record of such rehearing,” to comprehend the original application, its action thereon, the application for rehearing, its action thereon, and a transcript of the evidence. Accordingly, its certificate includes all those items. By them, the court was advised in this case that the plaintiff’s claim was denied on rehearing on April 14, 1952. By reference to the transcript of the docket and journal entries in this case, and the clerk’s file mark on the petition, we learn that this action was commenced on April 25, at which time defendant waived issuance and service of summons, and on June 30, 1952, filed an answer. The action was, therefore, necessarily commenced within the time limited by the statute.

We are of the opinion that the trial court as well as this court is authorized to look at these documents for two reasons: (1) because they constitute a part of the record on rehearing and, therefore, were within the power of the commission to certify to the court, and (2) even though they were beyond the power of the commission to certify, the court had a right to inspect them to determine the existence of the jurisdictional fact in the absence of objection at the time. Defendant, having certified the fact, surely should have informed the court of any mistake that existed in the certification.

There is another reason that requires the affirmance of this judgment. The Common Pleas Court is a court of general jurisdiction of all civil actions.

In 1 Freeman on Judgments (5 Ed.), 819, 820, Section 383, it is said:

“To conclude from a mere want or insufficiency of jurisdictional recitals in the record of a court of general jurisdiction that jurisdiction was not actually acquired would be, in effect, to presume against the record, whereas it is a rule of general application that every intendment consistent with the record of such courts will be indulged to sustain their proceedings and judgments. The rule is that upon collateral attack of a domestic court of general jurisdiction the want of jurisdiction or invalidity of the judgment must affirmatively appear upon the record itself, and until the contrary appears it will be presumed that the court had jurisdiction. ’ ’

We think a reading of Section 1465-90, General Code, is sufficient to make it clear that this action is a civil action, governed by the Code of Civil Procedure and all the principles applicable thereto.

In Magevney v. Karsch, 167 Tenn., 32, 65 S. W. (2d), 562, 92 A. L. R., 343, it was held, as stated in the seventh paragraph of the A. L. R. headnotes:

“Where an attack is made upon a judgment or decree of a court of general jurisdiction by parties or their privies, such judgment or decree cannot be questioned except for want of authority, found in the record itself, over the matter adjudicated upon. ’ ’

The court so held as to an adoption proceeding and at page 42 (92 A. L. R., 350), quoted from the opinion of the Supreme Court of the United States in Galpin v. Page, 85 U. S. (18 Wall.), 350, 371, 21 L. Ed., 959, as follows:

“ ‘The qualification here made that the special powers conferred are not exercised according to the course of the common law is important. When the special powers conferred are brought into action according to the course of that law, that is, in the usual form of common-law and chancery proceedings,- by regular process and personal service, where a personal judgment or decree is asked, or by seizure or attachment of the property where a judgment in rem is sought, the same presumption of jurisdiction will usually attend the judgments of the court as in cases falling within its general powers. ’ ’ ’

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross and Hildebrant, JJ., concur.


source: Caselaw Access Project

author: Hornbeck, P. J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Cramer, Appellant.
    (Nos. 4741 and 4742
    Decided February 3, 1953.)

      Mr. Richard, W. Gordon, city attorney, Mr. Glenn E. Kemp and Mr. John L. VanDervoort, for appellee.

      Messrs. Smith, Clark & Holsapfel, for appellant.
   Hornbeck, P. J.

These are two appeals from convictions and sentences of the defendant on certain charges by the Municipal Court of the City of Columbus.

Appeal No. 4741 arises by reason of a charge against the defendant of the violation of Section 12705, General Code, in that he ‘ ‘ not then and there being a legally registered pharmacist under the laws of the state of Ohio, and not having in his employ a pharmacist legally registered under the laws of the state of Ohio, in full and actual charge of such retail drug store, located at 1359 West Broad street, in said city, in violation of Section 12705, G. C.”

The second charge, involved in appeal No. 4742, is that the defendant, “not being a legally registered pharmacist under the laws of the state of Ohio, did unlawfully sell, to wit: poison, Lysol, in violation of Section 12706, G. C.”

Referring to No. 4741, the evidence, as the trial court had a right to resolve it, discloses that the defendant jointly operated a drug store in the city of Columbus and that he was not a legally registered pharmacist and did not at the time in question have a legally registered pharmacist in his employ and in full and actual charge of such drug store.

In the most favorable light to the defendant it appears that his partner, who with him jointly owned the drug store, was a legally registered pharmacist but that at the time in question he was absent from the drug store, intending to return in a short time; and that when the pharmacist was not on duty the pharmaceutical department was closed and no prescriptions were filled. However, there is testimony in the record also to the effect that the defendant had told the agent of the State Medical Board that it was the practice of each partner to alternate with the other a day at a time in the service in the store. The trial judge had a right to accept this admission of defendant if found by him to be true.

The statute, as now framed, makes it an offense to manage or conduct a retail drug store without a registered pharmacist at all times in full charge of the store. In this particular the statute varies from the former section of the same number, which made it an offense not to have a registered pharmacist in full and actual charge of the pharmaceutical department of the store. The differentiation in the language in the section, as it now reads and as it formerly read, distinguishes the case cited by counsel for defendant. State v. Knecht, 28 N. P. (N. S.), 1.

Although the question is not raised by these appeals, or by the briefs of counsel, the court may not disregard an omission in the affidavit which renders it ineffective to charge an offense. The gist of Section 12705, General Code, is that an owner, manager or one who conducts a retail drug store must either himself be a registered pharmacist and be in charge of the store at all times, or at all times have a legally registered pharmacist in full and actual charge of the store. It is basic that a defendant charged with a violation of the section must either own, manage or conduct a retail drug store. The affidavit makes no such material charge as will be readily observed by an examination of the language thereof. Kennedy v. State, 34 Ohio St., 310; Geiger v. State, 5 C. C., 283, 3 C. D., 141; Akerman v. City of Lima, 7 N. P., 92, 8 O. D. , 430; State v. Williams, 14 Ohio Law Abs., 637.

The affidavit charging no offense, the conviction and sentence are invalid and judgment will be entered in this court, finding for the defendant and dismissing the charge against him, and the cause will be remanded.

No. 4742 is a charge that the defendant in selling “Lysol,” sold a poison which is in violation of Section 12706, General Code. There is no question that “Lysol” is a poison, and unless its sale is excepted by Section 12707, General Code, it was an offense for the defendant to sell it.

That part of Section 12707, General Code, which is applicable here reads:

“Sections * * * 12706 of the General Code shall not apply to * * * the making or vending of proprietary medicines by a retail dealer, in original packages when labeled as required by the Federal Food, Drug and Cosmetic Act, # * *.”

It is admitted that “Lysol,” which defendant sold, was “in the original package and labeled as required by the Federal Food, Drug and Cosmetic Act.” The state contends that it is not a proprietary medicine, and the defendant insists that it is. The state in its brief also directs attention to a list prepared in October 1941 by the State Board of Pharmacy which, “in effect, ruled that Lysol is not a proprietary medicine. ’ It is asserted that the court should take judicial notice of this list. We doubt if it is such a rule of public authority as that the court would take judicial notice of it. However, it probably comes within the rule that a court will consider and give weight to the construction made by state boards of statutes relating to subject matter over which they have general jurisdiction. State, ex rel. Gentsch, v. Hirstius, 15 N. P. (N. S.), 505, affirmed, 25 C. C. (N. S.), 177, 35 C. D., 233.

The meaning of the section under consideration is plain. Whether “Lysol” is a proprietary medicine presents the difficulty.

The package in which the “Lysol” was enclosed at the time it was sold carries the printed information that it is a “brand disinfectant”; that it. may be used for “an antiseptic douche * * * cuts, scratches, and lacerations * * * for ringworm of the foot * * * for burns, scalds, etc., * * * for bee stings and nonvenomous insect bites,” as well as “for disinfecting sickrooms and for all general housecleaning.” This information is presumed to be true. Manifestly, the product, “Lysol,” has many uses, which properly bring it within the classification of a proprietary medicine.

In State Board of Pharmacy v. Matthews, 197 N. Y., 353, 90 N. E., 966, 26 L. R. A. (N. S.), 1013, it was held that tincture of iodine, tincture of arnica and spirits of camphor, though commonly used as domestic remedies, are, nevertheless, medicines, within the pharmacy law prohibiting, under penalties, the sale of medicines or poisons except in the presence and under the supervision of a licensed pharmacist.

The judge writing the opinion said that the court would take judicial notice of the fact that the articles under consideration were medicines. There is much similarity between tincture of arnica and “Lysol” in the respect that both are poisonous substances. We find no other authority in point and counsel cite none.

Without pursuing the question further, it is our judgment that the product, “Lysol,” is a proprietary medicine and that, even though it is a poison, its sale by a retail dealer is excepted from the application of Section 12706, General Code.

In our judgment, the conviction of the defendant on the charge of selling a poison in violation of Section 12706, General Code, is not proven by the evidence, and the essentials to a conviction under this section do not appear because the defendant comes within the exception to Section 12707, General Code.

The judgment in this court in appeal No. 4742 is in favor of the defendant; the charge against him is dismissed, and the cause is remanded.

Judgments accordingly.

Wiseman and Miller, JJ., concur.


author: Per Curiam.

text:
    The State, ex rel. Kearns, Prosecuting Attorney, v. Rindsfoos et al.
    (No. 4908
    Decided May 22, 1953.)

      Messrs. Herbert <& Dombey, Mr. C. Richard Grieser and Mr. William E. Knepper, for relator.

      Mr. Paul R. Gingher, Mr. Luther L. Boger and Mr. Rodney B. Baldwin, for respondents.
   Per Curiam.

This is an action in quo warranto, originating in this court and presenting the question of whether the respondents were legally elected as directors of the Brunson Bank & Trust Company, a banking corporation organized and incorporated under the laws of Ohio, and doing business in Columbus, Ohio. The relator contends that the respondents are usurping the offices of the directors and should be ousted. To the petition, the respondents have filed an answer admitting the essential allegations of the petition.

The matter is submitted to the court on the motion of the relator for judgment on the pleadings. A question of law only is presented.

The question for determination is: Is cumulative voting permissible by stockholders of a banking corporation organized under the laws of Ohio ?

Cumulative voting was not permitted at common law. State, ex rel. Baumgardner, v. Shockley, 45 Ohio St., 304, 306, 13 N. E., 279. Relator contends that cumulative voting by a stockholder of a state bank is permitted by certain controlling statutory provisions.

Section 710-52, General Code (part of the banking act), provides:

“Such corporations shall be created, organized, governed and conducted, and directors shall be chosen in all respects in the same manner as provided by law for corporations organized under the general incorporation laws of this state, in so far as the same shall not be inconsistent with the provisions of this act. ’ ’

Section 710-64, General Code, in part, provides:

‘ ‘ Except as otherwise provided in the articles of incorporation, in elections of directors and in deciding questions at meetings of stockholders, each stockholder of an incorporated bank shall be entitled to one vote for each share of stock held by him. Any stockholder may vote by proxy duly authorized in writing. ’ ’

The articles of incorporation of the Brunson Bank & Trust Company do not provide for cumulative voting. The question presented would be easily resolved but for certain statutory provisions in the general corporation act.

Section 8623-132, General Code, in part, provides:

“In cases where special provision is made in the General Code for the incorporation, organization, conduct or government of any class of corporations, such special provision shall govern to the exclusion of the provisions of this act on the same subject, unless it clearly appears that the special provision is cumulative, in which case the provisions of this act also shall apply.”

Section 8623-50, General Code, in part, provides:

“Except as otherwise provided in the articles (or in the provisions of this act respecting script), every shareholder of record as of the day next preceding the date of the meeting or, if a record date for the determination of persons entitled to vote thereat is fixed as in this act provided, of record as of said date, shall be entitled at such meeting to one vote for each share then standing in his name on the books of the corporation. ’ ’

Section 8623-50o, General Code, in part, provides:

“If notice in writing is given by any shareholder to the president or a vice president or the secretary, not less than twenty-four hours before the time fixed for holding a meeting for the election of directors, that he desires that the voting at such election shall be cumulative, and if an announcement of the giving of such notice is made upon the convening of the meeting by the chairman or secretary or by or on behalf of the shareholder giving such notice, each shareholder shall have the right to cumulate such voting power as he possesses and to give one candidate as many votes as the number of directors to be elected multiplied by the number of his votes equals or to distribute his votes on the same principle among two or more candidates, as he sees fit.

“Such right to vote cumulatively shall not be restricted or qualified by any provisions in the articles or regulations.”

In the case at bar, the requisite notice was given by the relator, requesting a cumulative vote.

Relator contends that these sections of the general corporation act supplement the pertinent sections of the banking act; that the provisions of these sections relating to the election of directors are not inconsistent; and that the provision authorizing cumulative voting as provided in the general corporation act is applicable to state banks.

The sections controlling state banks are special statutes and are so regarded in Section 8623-132, General Code. It is a well established rule of statutory construction that a special statute upon the same subject matter controls over a general one. Western & Southern Indemnity Co. v. Chicago Title & Trust Co., 128 Ohio St., 422, 191 N. E., 462; Andrianos v. Community Traction Co., 155 Ohio St., 47, 97 N. E. (2d), 549. Section 710-64, General Code, is a special statute and expressly provides for the election of directors. This section authorizes straight voting. The cumulative system of voting authorized under the general corporation act is inconsistent therewith. The special provision relating to voting found in Section 710-64, General Code, does not confer an alternative or cumulative right on a stockholder as provided in Section 8623-132, Genera] Code, but is an exclusive provision. In State, ex rel. Baumgardner, v. Shockley, supra, the court held that the right to cumulative voting must be expressly conferred by statute. With respect to state banks, the Legislature has not seen fit to do so. In the Ninety-Eighth General Assembly of Ohio, 1949-1950 session, senate bill No. 71 was introduced, which would have amended Section 710-64, General Code, to provide for cumulative voting. The portion sought to be added to Section 710-64, General Code, by the bill was in the identical language of the cumulative voting provision found in Section 8623-50a, General Code. The bill failed of passage.

Three attorneys general have ruled that cumulative voting by a stockholder in a state bank is not permitted. See Vol. 1 Opinions of Attorney General (1914), 445, No. 856; and Yol. 2 Opinions of Attorney General (1916), 1804, No. 2050. In 1935, the Honorable John W. Bricker advised the Superintendent of Banks that he concurred in the previous opinions of Honorable Timothy S. Hogan and Honorable Edward C. Turner. A like ruling appears to have been made by the Common Pleas Court of Hamilton County in 1945 in Fagaly v. Farmers State Bank, case No. A-114777, which was affirmed by the Court of Appeals for Hamilton county in 1950 in case No. 7209, both which are unreported.

The motion of relator for judgment on the pleadings is overruled.

Judgment accordingly.

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


author: Doyle, P. J. Hunsicker, J.,

text:
    The Cleveland Trust Co., Trustee, Appellee, v. Andrus et al., Appellees; Pierce, Appellant.
    (No. 1278
    Decided March 25, 1953.)

      Messrs. Fauver & Fauver, for appellee The Cleveland Trust Company, Trustee.

      Messrs. Snoble £ Snoble and Messrs. Wilcox £ Wilcox, for appellees Irma P. Andrus and Prank Pierce.

      Mr. Joseph W. Lowdermilk, for appellees Lois Unger Cox and Robert E. Unger.

      Mr. C. E. VanDeusen and Messrs. Glitsch £ Stack,' for appellant.
   Doyle, P. J.

This action was begun in the Court of Common Pleas of Lorain County to have construed, or interpreted, item “Ninth” of the last will and testament of Fred W. Pierce, deceased. The case was submitted to us by all of counsel as an appeal on questions of law and fact. We therefore entertain the questions de novo.

The item in question is in the following words and phrases:

“Upon the death of my wife, Nellie A. Pierce, I give, devise and bequeath all the rest, residue and remainder of my estate so held for the use and benefit of my wife, Nellie A. Pierce, during her natural lifetime, to my daughters, Blanche and Irma, and to my sons, Frank and Ray, each an undivided one-fifth interest, and to the children of my daughter, Clara, an undivided one-fifth interest, they to take the same absolutely and in fee simple, and should any of my children in the meantime die, leaving heirs of their body, then the portion going to such deceased child or children shall go to their children in equal shares, the same to be theirs absolutely and in fee simple, and said trustee is hereby authorized and empowered to convey such of the rest, residue and remainder of my estate as may be in its hands at the death of my wife to my children and grandchildren aforesaid in the proportions hereinbefore set forth.”

The sole question presented is the time of vesting of the interests, whether at the time of the death of the testator, or at the time of the termination of the life interest. The question becomes especially important because the son Ray, who is specifically mentioned, died prior to the termination of the life interest, but subsequent to the death of the testator, without children, but leaving a widow (Marion Pierce). The widow now claims the interest which she declares had vested in her husband at the time of the death of the testator. In opposition, it is claimed that the interests vested at the termination of the life interest, at which time Ray was dead, leaving no children, and therefore no one can claim from or through him.

We can start, we think, by stating that the testator divided the remainder of his estate into five equal parts, an undivided one-fifth interest to go to each of his four named children, and one-fifth to go to the children of his dead daughter, Clara. He then undertook to say that if any of his children should “in the meantime die,” leaving “heirs of their body,” then the portion going to such deceased child or children should go to their respective children in equal shares. By this language he was referring to his children named in the will who might predecease him, or to those who might die later but prior to the termination of the life interest, and, in the event of the death of one or more during that time, he wanted each family group (the children) to have one-fifth of the remainder. The testator then continued with instructions to his trustee (which was also named as his executor) to pay, at the termination of the life estate, to his children and grandchildren “in the proportions hereinbefore set forth.” The “proportions hereinbefore set forth” were a one-fifth interest to each of his named children, or, in the event of death, a one-fifth interest to the children of each deceased child. It is obvious that, in his directions to pay, he was directing payment only of one-fifth interests in the residue. Under no circumstances could one family group receive more than that amount, because of the words “in the proportions hereinbefore set forth.”

If, therefore, it was the intention of the testator that the residue of his estate vest at the termination of the life interest under the circumstances here shown to exist, he died intestate as to one-fifth of the residue of his estate. The will was silent on the disposition of the one-fifth interests to his children in the event that they died before he did, without issue. Of course, if any one of them died without issue prior to the time the will took effect, his or her one-fifth interest would become intestate property, even under the so-called “other relative” statute, Section 10504-73, General Code.

We turn now to the case law relative to the vesting of estates. It has been well documented by Judge Zimmerman in Ohio National Bank, Trustee, v. Boone, 139 Ohio St., 361, 40 N. E. (2d), 149, 144 A. L. R., 1150. In the opinion appears the following:

“* * * The criterion of a vested remainder is a present capacity to take. So, when there is a person in being who would have the right to possession immediately upon the determination of the particular intervening estate, the remainder is vested. In re Hutchinson, 120 Ohio St., 542, 549, 166 N. E., 687, 690. It is not the uncertainty of actual enjoyment, but the uncertainty of the right to enjoyment that makes a remainder contingent. Smith v. Block, 29 Ohio St., 488, 497.”

In applying the “criterion” or standard of judging, consideration must always be given to language expressing an intention that the estate should vest later. So, if there is evidenced a well-defined purpose that the remainder should not vest until the time of division or distribution arrived, then the intention of the testator to postpone the vesting until the termination of a life interest must prevail.

A majority of this court, however, finds no well-defined purpose in the instrument to postpone the early vesting of the interests of the designated sons and daughters of the testator, nor indeed of the children of the deceased daughter. There is no language in the instrument suggesting that, in the event that one or more of his sons or daughters should die, without issue, the one-fifth share so given should be given to other of his children or grandchildren. In fact, the testator carefully confined the gifts to one-fifth interests in the residue. Likewise, there does not appear a gift over to any one in the case of the contingency of the death of one of his sons or daughters without issue before the termination of the life interest, except and except only of a one-fifth interest “in equal shares” to the children of a son or daughter who might die before the expiration of the life interest.

A rule of law of long standing is stated with supporting authorities in 109 A. L. R., 5, at p. 9. We subscribe to its contents and apply it to the instant case:

“Where the remainder is given to persons named or otherwise definitely designated, and there is no clause of survivorship, the fact that a construction of the will which will render the remainder contingent may produce an intestacy as to the share of any of such persons who may die without leaving children surviving, during the continuance of the precedent estate, is a consideration which -will influence the court to regard the remainder as a vested one. ’ ’

In summary, a majority of this court states:

(1) At the time of the death of the testator, there was a capacity in each of the designated children to take, with a right to enjoy, a one-fifth interest in the residue at the termination of the life interest.

(2) The estates in remainder vested at the death of the testator. The “criterions” stated in Ohio National Bank, Trustee, v. Boone, supra, all exist.

(3) The son Ray acquired a vested remainder upon the death of his father, and this interest now should pass as a part of his estate.

(4) The testator undertook to dispose of the entire residue of his estate, and there is no language in the instrument indicating that he intended to' have any of it pass as intestate property.

If, as was claimed on trial, the testator intended that only his blood relatives should take and his sons or daughters by affinity should not acquire an interest under any circumstances, a few simple words and phrases would have accomplished his purpose. In construing a will, a court must take it as written by the testator. We have no right to make a new one.

A decree for appellant may be entered.

Judgment accordingly.

Stevens, J., concurs.

Hunsicker, J.,

dissenting. I find myself unable to agree with my associates in the instant case.

“1. Technical rules of interpretation may be resorted to as aids to the construction of a will; but they can not control if they are in conflict with the apparent intention of the testator.” Barr v. Denney, 79 Ohio St., 358, 87 N. E., 267.

To me the intention of the testator is clear, and, hence, no rules of construction are needed to determine the time when the devise of the residue of the estate, as set forth in item Ninth of the will, vested.

The testator used in his will such words as “children and grandchildren,” and “heirs of their body,” which shows clearly that, when he prepared his will, he intended that only those who were of his blood should 'get his property. He never intended that others outside of this blood relationship would secure an interest, which naturally should go to his issue. In item Ninth, he specifically stated' that the trustee should convey the rest and residue of his estate “at the death of my wife to my children and grandchildren * * *.” (Italics mine.)

This will needs no interpretation. I believe that the order entered by the trial court should be entered herein.


author: Stevens, J.

text:
    Burks, Appellee, v. Louisville Title Ins. Co., Appellant.
    (No. 4383
    Decided October 7, 1953.)

      Messrs. Hinton & Konstand, for appellee.

      Mr. W. 8. Hewgley, Mr. W. P. Newton, and Mr. Wm. J. Whelton, for appellant.
   Stevens, J.

Plaintiff (appellee) purchased a tract of land from Rose and Joseph Pilcharsky and received a warranty deed therefor, which deed was dated May 3, 1951, and filed for record May 14, 1951.

On May 4, 1951, beginning at 7:59 a. m., the title guaranty in the amount of $2,000, purchased by plaintiff from defendant, guaranteed that title to said premises was good in Rose Pilcharsky, as ascertained from the public records of Summit county.

Plaintiff purchased said premises for the purpose of building a home thereon, and, relying upon said title guaranty, proceeded to erect said home.

When the structure was partially constructed, a claim was made by the land owner on the north, one Masters, that plaintiff did not own the northerly portion of the premises included in the description contained in plaintiff’s deed.

Thereupon, a surveyor was employed by plaintiff, whose survey indicated that a triangular piece, of approximately 40 feet front on the Mogadore road, was not within the premises described and purchased by plaintiff. Defendant was notified of the failure of title, and refused to do anything about it; whereupon this action on the title guaranty was brought, seeking recovery of the $2,000, the amount provided in the title instrument.

Trial to a jury resulted in a verdict and judgment for plaintiff in the full amount sought. This appeal on questions of law followed.

While six assignments of error are presented, only three are argued.

1. The trial court was without jurisdiction, because, the question of the location of the disputed boundary not having been judicially determined, no loss has been established, and thus the instant action is prematurely brought.

2. The court erred in excluding evidence on the subject of limitation of tlie description contained in plaintiff’s deed by the insertion in the guaranty of a reference to a deed which showed the land purchased by plaintiff to be less than that described in plaintiff’s deed.

3. Error in the admission of evidence as to consequential damages.

It is conceded that the instrument furnished by defendant to plaintiff, for a valuable consideration, was a title guaranty, which in turn is conceded to be a contract of indemnity.

The contract between the plaintiff and defendant provides that defendant “hereby guarantees Louie A. Burks in an amount not to exceed two thousand dollars ($2,000), that the title to the premises hereinafter described, at the date hereof, as appears from said record, is good in Rose Pileharsky and free from all liens, encumbrances and defects, except as shown below. * * * The liability of the company shall not in any event exceed in all the amount stated on the first page hereof and shall be limited to the actual loss of the party guaranteed * *

The contract of defendant in terms guaranteed that, from the time the contract became effective, the title to the premises described in plaintiff’s deed, as shown by the records of Summit county, Ohio, from 1900 to the date of the contract, was good in Rose Pileharsky, and free from all liens, encumbrances and defects.

Plaintiff was required to give notice in writing to defendant within sixty days of any adverse claim of title, encumbrance, or defect, which it is conceded was done, and defendant did nothing to relieve against the defect.

There is no provision in the contract requiring plaintiff to institute an action to clear up adverse claims of title, or encumbrances or defects in title, before proceeding against defendant on its contract.

In fact, it appears to us that such procedure would be contrary to the whole concept of title guaranty contracts. As we understand that concept, it is this: that when one obtains a deed for specific real property, and for a valuable consideration procures a title guaranty that there are no encumbrances on said property, nor adverse claims to or defects in the title to said property, as shown by the records of the county where the property is located, and thereafter a defect adversely affecting the owner’s title becomes apparent, which fact is made known to the title insurance company, it is then incumbent upon the company, within the limits of its guaranty, to take the necessary steps to relieve against such defect. Failing so to do, the owner may proceed as for breach of his contract, without first himself attempting to relieve against the-effects of the defect. °

This is so, because the guaranty contract is between the owner and the title company, and the liability of the company, within the limits of the guaranty, is to the owner. The existence of the claimed defect or encumbrance is a fact to be proved, which, when established, furnishes the predicate for the recovery of damages for breach of contract.

The defendant’s first assignment of error is not well taken.

The second assignment of error has to do with the exclusion of evidence directed to showing that the following, added to the description contained in plaintiff’s deed, limited the description contained in that deed.

“Being that part of the premises formerly situated in Tallmadge Township, Summit County, Ohio, as described in deed recorded in Book 2631, pages 48-49, of Summit County Records, be the same more or less, but subject to all legal highways.”

The description contained.in plaintiff’s deed was a metes-and-bounds description fully describing the premises conveyed, and concluding with the words “and contains 3.30 acres of land, as surveyed by W. S. Matthews in April, 1951.”

The deed to which reference is made as being recorded in volume 2631, page 48, of Summit county records, is for a tract situated in both Tallmadge township and Springfield township, and containing 31.43 acres, excepting therefrom a parcel in Tallmadge township containing 1.03 acres.

That description could not conceivably be anything other than a reference showing the source of grantor’s title. It does not attempt to describe or refer to the tract purchased by plaintiff, except to indicate that plaintiff’s tract was probably included therein.

The rule is stated in 16 American Jurisprudence, Deeds, Section 276, as follows:

“* * * where the description is full and complete in itself and a reference to another deed is added, the quantity of land conveyed is not restricted by the reference.”

It has also been held that—

“2. A specific grant is neither enlarged nor limited by a mere recital of the purpose of the grantor to convey the same premises conveyed by a deed in which the premises conveyed are otherwise described. ’’ Pierce et al., Trustees, v. Adams, 137 Me., 281, 18 A. (2d), 792, 134 A. L. R., 1033, second A. L. R. headnote.

We hold the defendant’s second assignment to be without merit.

The third assignment of error urges that, assuming defendant was liable because of the defect in title, the recovery should be limited to the value of the parcel as to which the title failed, and should not include other damages proximately resulting from such failure of title.

The rule pertaining to damages has been recently

restated by the Supreme Court of Ohio in Midvale Coal Co. v. Cardox Corp., 152 Ohio St., 437, at p. 447, 89 N. E. (2d), 673, as follows:

“What are the damages which a party should recover upon the breach of a contract? This question has never been better answered than in the famous case of Hadley v. Baxendale (1854), 9 Exch., 341. Most of the accurate definitions which subsequent judges have announced are simply paraphrases of the words of Baron Alderson.

“In the Hadley case he said:

'* * * where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fully and reasonably be considered either arising naturally, that is, according to the usual course of things, from such breach of contract itself, or were such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. ’ ”

Here the parties to the contract under consideration knew that plaintiff bought the land in question for the purpose of building a home thereon. The breach of that contract, resulting from the defect of title, not only deprived plaintiff of part of the land he had bought, but required him to change the location of his driveway., to do additional grading, and to delay his construction, which, with other consequential damages suffered by plaintiff, exceeded the amount of defendant’s guaranty.

It is our conclusion that the parties contracted with all of those damages in contemplation, and that such damages arose naturally, from defendant’s breach of contract.

We find no reversible error disclosed by this record in any of the respects concerning which defendant complains.

The verdict and judgment were, in our opinion, the only ones which could properly have been returned and entered.

The judgment is affirmed.

Judgment affirmed.

Doyle, P. J., and Hunsicker, J., concur.


author: Collier, J.

text:
    Fulks, Appellee, v. Fulks et al., Appellants.
    (No. 858
    Decided November 20, 1953.)

      Mr. O. E. Irish and Messrs. Riley & Riley, for appellee..

      Mr. David E. Croioe, for appellant.
   Collier, J.

The plaintiff-appellee brought an action in the Common Pleas Court of Lawrence County for damages in which he claims that he was the owner of a steer worth $160; that the defendants converted the steer to their own use, loaded it into a truck and hauled it to the Catlettsburg, Kentucky, stock market and sold it to H. Van Bibber of Greenup, Kentucky; that in his efforts to regain possession of the steer, the plaintiff lost earnings in the sum of $90, expended $200 in pursuit of his property, paid attorney fees in repossessing the steer in the sum of $125, paid to Van Bibber, who purchased the steer, the sum of $160 for the return of the steer and other expenses in hauling the steer from Greenup, Kentucky, to his farm in Lawrence County, Ohio, and veterinary fees, making a total of $692, for which he claims judgment against the defendants.

The answer is a general denial.

At the close of all the evidence, on motion of the defendant Grover Fulks, the case was dismissed as to him. The verdict of the jury was in favor of the plaintiff against the defendant Maggie Fulks in the sum of $500. The court overruled the defendant Maggie Fulks’ motions for judgment notwithstanding the verdict and her motion for a new trial and entered judgment on the verdict. It is to reverse this judgment that the case has been appealed to this court.

The evidence shows that these parties are closely related and live on neighboring farms in the same community; that on August 28, 1952, the defendant Maggie Fulks and her husband, O. R. Fulks, sold several head of cattle consisting of steers and heifers; that the cattle which were sold were selected from a herd in their pasture and loaded into a truck driven by Grover Fulks, their son; that the defendant Maggie Fulks, her husband, O. R. Fulks, her son, Grover Fulks, and Ronnie Fulks, a brother of the plaintiff, assisted in loading the cattle, including the steer in question, into the truck; that the steers were sold in the market in the name of O. E; Fulks, and the heifers were sold in the market in the name of Mággie Fulks, and each received a check for the cattle so sold; that a few days after the sale of the cattle, the plaintiff, Curtis D. Fulks, missed a steer from his farm, began a search for the steer and sometime later, on the Van Bibber farm in Kentucky, identified one of the steers which had been sold by O. E. Fulks and Maggie Fulks as his lost steer; that after considerable effort and reimbursement of the purchase price the steer was repossessed by the plaintiff; that the plaintiff then filed criminal charges against the defendant Grover Fulks in the Municipal Court of Ironton, Ohio, and after a hearing in that court the charges were dismissed and the defendant Grover Fulks released; and that the plaintiff then instituted this action in the Common Pleas Court of Lawrence County against Grover Fulks and Maggie Fulks as defendants for conversion of the steer.

The two assignments of error relied upon and stressed in defendant’s brief are that the evidence is insufficient to establish conversion of the steer by the defendant Maggie Fulks, and that the trial court erred in permitting attorneys ’ fees expended by the plaintiff in repossessing the steer to be considered as an item of damages by the jury.

The evidence which the plaintiff claims is sufficient to establish a cause of action for conversion against the defendant Maggie Fulks is found on pages 17 and 18 of the record, where the testimony of the defendant Maggie Fulks is as follows:

“Q. Mrs. Fulks, did you help.load this steer in the truck? A. I helped load the cattle in the truck.

“Q. You say you helped load it? A. Yes sir, 1 helped load the cattle. ’ ’

There is testimony of several witnesses who were present at the hearing in the criminal case in the Municipal Court at fronton against the defendant Grover Fulks who said that the defendant Maggie Fulks testified in that case that the steer belonged to her. However, we place very little importance on this testimony and by reason of the circumstances consider it as very unreliable. Furthermore, it is not necessary to show an assertion of the ownership of the cattle in order to establish conversion.

It is held in the case of Gillespie & McCulley v. Holland, 3 Ohio App., 116, 20 C. C. (N. S.), 17, 26 C. D., 220:

“It is not necessary for the party taking wrongful possession of property to assert absolute ownership of the property in order to give the owner of the property the right to an action for conversion. If the owner, entitled to the immediate possession of his property, has been deprived of that possession by the unauthorized act of another, or by the exercise of dominion over the property inconsistent with the right of possession of the owner, it is a conversion of the property.”

“Conversion” is generally defined as the wrongful assuming of unauthorized control over the personal property of another, whether it is done purposefully or not. See Aetna Casualty & Surety Co. v. Higbee Co., 80 Ohio App., 437, 76 N. E. (2d), 404, 174 A. L. R., 1429; Miller v. Uhl, 37 Ohio App., 276, 174 N. E., 591; Bear v. Colonial Finance Co., 42 Ohio App., 482, 182 N. E., 521; North Canton Bank v. Cocklin, 46 Ohio App., 27, 187 N. E., 638. Intent or purpose to do a wrong is not a necessary element of proof to establish conversion.

It is held in Baltimore & Ohio Ry. Co. v. O’Donnell, 49 Ohio St., 489, 32 N. E., 476, 34 Am. St. Rep., 579, 21 L. R. A., 117:

“The motive hy which a party was controlled in the conversion of property is of no avail as a defense.”

The rationale of these decisions is to the effect that any unauthorized act of control or exercise of dominion over the personal property of another which deprives the owner of possession of his property is sufficient to show conversion. It is not necessary for the plaintiff to show wrongful purpose or intent by the person charged with conversion; neither is it necessary to show an assertion of ownership over the property by the person committing the wrongful, unauthorized act. The person so charged may be acting under misapprehension or mistake and.still be guilty of conversion.

Therefore, when the defendant Maggie Fulks admits that she assisted in loading into the truck the steer which the jury found was the property of the plaintiff, she became liable in conversion to the plaintiff for the damages he sustained as a proximate result of such unauthorized act.

The defendant urges there is error in the court’s instructions to the jury concerning the inclusion of attorney fees incurred by the plaintiff in repossessing the steer as a proper item of damages. It is true as a general rule that the measure of damages for conversion of personal property is compensation for the loss sustained by the wrongful act of the defendant in an amount equal to the market value of the thing converted. However, it is held in the case of Miller v. Proctor & Sturgeon, 13 Ohio Law Abs., 295: “There is no inflexible rule as to the measure of damages for a wrongful conversion.” From 53 American Jurisprudence, 897, Section 106, on the subject of conversion, we quote: “Thus, compensation for time lost as a proximate result of the conversion, or for time and money spent in pursuit of the property converted, may be recovered.”

Attorney fees incurred by the plaintiff in the prosecution of this action are not recoverable since the plaintiff is not seeking punitive damages, but attorney fees spent in recovering possession of the steer, which is properly pleaded in this case, is a proper item of special damages and the trial court correctly included this item of damages under the circumstances shown by the evidence.

We find no error in the trial of this case prejudicial to the rights of the defendant and, therefore, the judgment is affirmed.

Judgment affirmed.

Gillen, P. J., and McCurdy, J., concur.


author: Hunsicker, J.

text:
    Kay, Appellant, v. Bell et al., Appellees, et al.
    (No. 1289
    Decided November 18, 1953.)

      Mr. Richard B. Kay, for appellant.

      Mr. Paul J. Mihus, prosecuting attorney, and Mr. James Christie, for appellees.
   Hunsicker, J.

In this appeal on questions of law, a narrative bill of exceptions has been filed, which purports to be a copy of the stipulation or agreed statement of facts upon which the cause was heard in the trial court. No question is raised by either party concerning the certification required to be made by the trial court of such narrative bill of exceptions, and therefore this court will accept such bill of exceptions, since it was filed within the proper time required by the statute.- The parties have stated to this court that all the evidence presented in the trial court is contained in the narrative bill of exceptions under the title ‘ ‘ Stipulations. ’ ’

The evidence so presented in the trial court is as follows:

“It is stipulated and agreed that a divorce was granted on June 9, 1949, to Dorothy S. Kay from Norman B. Kay in the Court of Common Pleas of Cuyahoga County, Ohio, and that custody of the minor son, Bruce S. Kay, was given to the said Dorothy S. Kay, now by marriage Dorothy S. Crawford; that thereafter said Dorothy S. Kay married Robert Crawford, removed to Avon Lake, Lorain County, Ohio, and enrolled said minor child in the Avon Lake elementary school under the name of Bruce S. Crawford; that when Norman B. Kay, father of said minor child, learned of said enrollment in September of 1952 he made a written demand dated October 21, 1952, on Edna Yon Pischke, president of the Board of Education of Avon Lake, Ohio, to register said child in the name of Bruce S. Kay, the name appearing on the birth certificate of said child; that a request for an opinion was made by said Board of Education upon the prosecuting attorney of Lorain County, Ohio, a copy of which opinion is attached to the petition herein and made a part hereof and a copy of which was mailed to counsel for the plaintiff; that said child to this date is still enrolled under the name of Bruce S. Crawford in the Avon Lake elementary school.

“ It is further stipulated and agreed that in said divorce case, being number 590862 in the Court of Common Pleas of Cuyahoga County, Ohio, on January 7, 1953, the defendant, Norman B. Kay, the plaintiff in the present case, filed a motion to modify the decree of divorce, and, among other things, he asked that the court ‘ enter on its journal an order that the said minor child, Bruce S. Kay, shall at all times for all intents and purposes retain the name of Bruce S. Kay, the son of the defendant herein’; that this motion came on for hearing before Judge Donald P. Lybarger, a judge of said court, on January 15, 1953, and was overruled; that on February 4, 1953, said defendant filed a motion for a rehearing of this previous motion to modify, and' on February 20, 1953, said judge granted a rehearing, and said motion was argued, heard, and submitted for decision; that said matter is now pending in said court, no decision having as yet been rendered on said rehearing.”

The trial court had before it a petition in which the following prayer for relief is contained:

“Plaintiff requests this court to issue a temporary restraining order to enjoin the further use of [the name] Bruce S. Crawford on the rolls of the public schools of Avon Lake for his son, Bruce S. Kay, and that upon final hearing, this injunction shall be made permanent and that defendants shall pay the costs of this action.

“Wherefore, plaintiff prays for a temporary restraining order against defendants, and after the final hearing this injunction shall be made permanent and that defendants shall pay the costs of this action. ’ ’

The judgment of the Common Pleas Court denied the relief sought and dismissed the plaintiff’s petition, and from such judgment an appeal on questions of law has been made to this court.

In what name shall the child in the instant case be enrolled in the school which he now attends!

The Supreme Court of Ohio in the case of Pierce v. Brushart et al., Bd. of Elections, 153 Ohio St., 372, at p. 380, 92 N. E. (2d), 4, said:

“It is universally recognized that a person may adopt any name he may choose so long as such change is not made for fraudulent purposes.

“On this subject 38 American Jurisprudence, 610, Section 28, states:

“ ‘In the absence of a statute to the contrary, a person may ordinarily change his name at will, without any legal proceedings, merely by adopting another name. He may not do so, however, for fraudulent purposes. In most jurisdictions, a change of one’s name is regulated by statutes which prescribe the proceedings by which such change is to be accomplished.’

“And it has been held .that where a person is as well known by one name as by another, the use of either name is sufficient. ’ ’

The name chosen for the child for registration in school was selected by the mother, whose present name is Crawford, although the birth certificate shows the child to be Bruce S. Kay.

Section 4843, General Code (now Section 3319.32, Revised Code), provided that boards of education should require all teachers and superintendents to keep school records so as to exhibit the names of all pupils enrolled therein. Section 4853, General Code (now Section 3321.24, Revised Code), provided that an enumeration of all youth in a given school district should be made by the school authorities each year, and that such enumeration should designate the name of each child of school age.

In Uihlein v. Gladieux, 74 Ohio St., 232, at p. 247, 78 N. E., 363, the court said:

‘ ‘ The meaning of the word, name, is given as the distinctive appellation by which a person or thing is designated or known; or, as better given by another lexicographer, that by which an individual person or thing is designated and distinguished from others. The law recognizes one Christian name or given name and one family surname.”

The purpose of a name is to identify the person; and, since the Norman conquest of England, a full name consists of one Christian or given name and one surname. The two, using the Christian name first and the surname last, constitutes the legal name of the person. Schofield v. Jennings, Admr., 68 Ind., 232.

It has been the custom in our country since the time “when the memory of man runneth not to the contrary” to give to a child the surname of its father. 29 Ohio Jurisprudence, Names, Section 3; 38 American Jurisprudence, Name, Section 3, at p. 596; 65 Corpus Juris Secundum, Names, Section 3 a, and authorities there cited.

‘ ‘ The husband furnishes the name, the domicile, and, generally, the support and maintenance of the family * * *.” Joyner v. McMurphy, 26 Ala. App., 549, at p. 551, 163 So., 533, at p. 534.

And see: Bilenkin v. Bilenkin, 78 Ohio App., 481, 64 N. E. (2d), 84, paragraph two of the syllabus.

For discussions on the subject of “names,” see also: 22 Central Law Journal, 220; 40 Central Law Journal, 316; 15 Yale Law Journal, 227 and 341; Vol. 1, Opinions of Attorney General (1921), 572, No. 2209.

There is nothing before this court to show that, in the order of the divorce court giving the custody of the child,' Bruce, to the mother, she was authorized to change the surname of the child (even if we assume that a court, in an action for divorce, has the authority, under the statutes, to make such an order). There is evidence to show that the court which granted the divorce decree made no order with respect to the surname of the child of the parties, for an application is pending in the court which granted the divorce to compel the mother, now Mrs. Crawford, to cease calling the child “Bruce Crawford.”

While it is true, as we have shown above, that one “may adopt any name he may choose so long as such change is not made for fraudulent purposes,” that does not mean that some other person may select, for a person, a name different from the name by which such person is known.

In the instant case, the name used to enroll the child, Bruce, in the schools of the village of Avon Lake was chosen by the mother, who did not have the legal authority or power to ■ change the name of her son in the manner chosen by her.

Prom our consideration of the matter before us, we find that the legal name of the child herein is Bruce S. Kay. The statute which requires the school authorities to keep a record of the name of all pupils enrolled in the school, means that such enrollment shall be in the legal name of the child. Where, as in this case, the child is born in lawful wedlock, the legal name is the first or Christian name, and the surname or last name of his or her natural father. In the instant case such name is shown by the record of birth, which it is agreed was known to the school authorities.

The judgment of the trial court is reversed, and, there being no dispute as to the facts in this cause, this court shall proceed to render the judgment which the trial court should have rendered and order that the appellees, as the Board of Education of Avon Lake, enroll the child in the schools of said village under his legal name — to wit, “Bruce Kay” (or, if desired, “Bruce S. Kay”).

Judgment reversed and final judgment entered.

Judgment reversed.

Doyle, P. J., and Stevens, J., concur..


author: Guernsey, J.

text:
    The State of Ohio, Appellee, v. Holbrook, Appellant.
    (No. 949
    Decided January 5, 1954.)

      Mr. John B. Kelly, for appellee.

      Mr. Fred Marhley, for appellant.
   Guernsey, J.

This is an appeal on questions of law from an order of the Juvenile Court of Logan County, Ohio, revoking the suspension of a sentence theretofore imposed by that court upon the appellant, Edna Holbrook, in a proceeding wherein the appellant pleaded guilty to a charge preferred against her in a complaint filed in such court of acting in a way tending to cause the delinquency of Deborah Peters, a child of 14 years of age, and was found guilty and sentenced to a term in the Ohio Reformatory for Women, Marysville, Ohio, but Avhich sentence was then suspended and the appellant probated upon certain conditions then fixed by the court which the appellant was later charged Avith violating.

The complaint upon which the appellant was found guilty and sentenced is, omitting the introduction and conclusion thereof, in the Avords and figures folloAving, to wit:

“That on or about the 30th day of November, 1952, in the county of Logan aforesaid, one Edna Holbrook residing at Lima, Ohio, did act in a way tending to cause the delinquency of the following child, to wit: Deborah Peters, age fourteen (14) years, in that she did come to Logan county, Ohio, and take said child with her to the city of Lima, Ohio, without the knowledge and consent of her parents thereby endangering her morals causing said child to be a truant from home and school.”

The order of suspension of sentence above mentioned, is in the words and figures following, to Avit:

“This day came James R. Goslee, prosecuting attorney of Logan county, on behalf of the state of Ohio, and the defendant was brought before the court in the custody of Ralph Watt, deputy sheriff of Logan county, Ohio, and arraigned upon the complaint filed in the above entitled case.

“Said defendant having had a reasonable time to examine the charge preferred against her, the charge was then distinctly read to her, and she was required to plead thereto.

“Whereupon, the said defendant pleads guilty to the charge preferred against her in said complaint of contributing to the delinquency of Deborah Peters; and being inquired if she had anything to say why judgment should not be pronounced against her, and having nothing but what she has already said; and showing no good and sufficient cause why judgment should not be pronounced;

“It is therefore ordered by the court that said Edna Holbrook, defendant, be fined in the sum of twenty five and 00/100 dollars, and that she pay the costs in the above entitled action, taxed at $10.67, and that she be imprisoned in the Ohio Reformatory for Women — Marysville, Ohio, for a period of six months, there to remain or until discharged by due course of law.

“The foregoing sentence of imprisonment is hereby suspended on the following conditions: 1. That she is not to violate any law of the state of Ohio and is to be of good behavior at all times for the next three years. 2. That she is to remain out of Logan county henceforth. 3. That she shall in no way associate with Deborah Peters. And this cause is continued.”

The order revoking the suspension of sentence and ordering the original sentence executed, from which this appeal is taken, is in the words and figures following, to wit:

“This day appeared the defendant, Edna Holbrook, with counsel, Fred Markley, and the prosecuting attorney of Logan county, John B. Kelly, on behalf of the state of Ohio, and being the day to which said cause was continued. This matter originated on the motion of the prosecuting attorney to revoke the suspended sentence given to Edna Holbrook, by reason of her violation of the terms thereof.

“It is the finding of this court after due consideration, that the defendant has violated the terms of her suspended sentence, to wit: ‘to remain out of Logan county henceforth.’

“Therefore, it is the order of this court that the suspended sentence be and hereby is revoked, and the original sentence is hereby ordered executed, and the defendant is remanded to the custody of the sheriff of Logan county for the execution of said sentence, to wit: ‘that she be imprisoned in the Ohio Reformatory for Women at Marysville, Ohio, for a period of six months and to there remain until discharged by due course of law.’’

The appellant assigns error in certain particulars which may be summarized as follows:

1. The complaint to which the appellant pleaded guilty and upon which she was found guilty and sentenced did not charge an offense; hence, the sentence imposed under said complaint, the suspension thereof, and the conditions upon which such suspension was ordered, were void, and the Juvenile Court was without jurisdiction to revoke such suspension and order such sentence executed, and its order purporting to do so is void.

2. The condition upon which said order of suspension was made, that the appellant “is to remain out of Logan county henceforth,” is unreasonable, contrary to public policy, contrary to law, and void.

We will now consider the first assignment.

Section 1639-2, General Code (now Section 2151.02, Revised Code), defines “delinquent child” as follows:

“For the purpose of this chapter, the words ‘delinquent child’ includes any child:

“1. Who violates any law of this state, the United States, or any ordinance or regulation of a subdivision of the state.

“2. Who does not subject itself to the reasonable control of its parents, teachers, guardian or custodian, by reason of being wayward or habitually disobedient.

“3. Who is a habitual truant from home or school.

“4. Who so deports itself as to injure or endanger the morals or health of itself or others.

“5. Who attempts to enter the marriage relation in this or any other state without the consent of its parents, custodian, legal guardian or other legal authority, as required by the laws of this state. ’ ’

The pertinent provisions of Section 1639-45, General Code (now contained in Sections 2151.41 and 2151.99, Revised Code), prescribing the’conduct which constitutes contributing to the delinquency of a minor read as follows:

“Whoever * * * aids, abets, induces, causes, encourages or contributes toward the * * * delinquency, as herein defined, of a child or ward of the court, or acts in a way tending to cause delinquency in such child * # * shall be fined not less than five dollars, nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both. * * * ”

Upon an inspection of the copy of the complaint hereinbefore set forth it will be observed that no facts •are charged which would constitute the minor child, Deborah Peters, a delinquent as defined in Section 1639-2, General Code. It will be noted further that no facts are charged showing any conduct upon the part of the appellant which, within the purview of Section 1639-45, General Code, would tend to cause the delinquency of said minor child.

In the case of Fisher v. State, 84 Ohio St., 360, 95 N. E., 908, in which the sufficiency of a complaint of contributing to the delinquency of a minor child, based upon the provisions of sections of the General Code then designated as Sections 1654 and 1644, General Code (analogous to General Code Sections 1639-45 and 1639-2, respectively), it was held that the offense of contributing to the delinquency of a child is “predicated upon the fact that S- is a ‘delinquent child,’ and that fact is the first one necessary to be proven, for it is only when she, by his aid, inducement and encouragement has become a ‘delinquent’ within the meaning of Section 1644, General Code, that the crime of contributing to her delinquency is complete.”

In the case of Edmonds v. State, 30 Ohio App., 195, 164 N. E., 649, in which a similar complaint was under consideration, it was held:

“1. There can be no valid conviction on an affidavit which charges no offense against laws of state.

“2. Affidavit charging defendant contributed to delinquency of a minor held fatally defective, even after judgment of conviction, where it did not specify some facts showing minor was delinquent child, within meaning of Section 1644, General Code.

“3. It is not sufficient to charge offense of contributing to delinquency of minor in language of Section 1654, General Code.

“4. Affidavit charging one with contributing to delinquency of a minor states no charge, under Section 1654, General Code, unless it charges some one or more acts of delinquency specified in Section 1644, since words ‘ as herein defined, ’ as used in Section 1654, insofar as they relate to delinquency, refer to definition of delinquent child contained in Section 1644.”

The foregoing holdings were followed by this court in the case of State v. Zaras, 81 Ohio App., 152, 78 N. E. (2d), 74, wherein the complaint was based upon the provisions of Sections 1639-45 and 1639-2, General Code, now in effect, which sections are analogous to former Sections 1654 and 1644, General Code.

In the last mentioned ease, the court, among other things, held:

“2. An affidavit drawn pursuant to Section 1639-45, General Code, charging an accused with contributing toward the delinquency of a minor by furnishing, aidT ing or participating in the sale of beer to such minor, but which does not set forth facts showing such minor to be a delinquent within the purview of Section 1639-2, General Code, does not charge an offense against the laws of Ohio.

“3. There can be no valid conviction on an affidavit which does not charge an offense against the laws of the state, and a plea of guilty will not cure such defect in the affidavit.”

In an earlier case, that of State v. Krauss, 81 Ohio App., 453, 80 N. E. (2d), 164, this court held:

“An affidavit charging that the accused contributed to the dependency of a minor child and acted in a way tending to cause such dependency, without charging that the minor was a dependent child as defined in Section 1639-4, General Code, does not charge an offense under the laws of Ohio. ’ ’

While that case involves dependency and not delinquency, the reasoning upon which the decision is based applies as well to charges of delinquency.

These holdings were recently followed and applied by this court in the case of State v. Kiessling, 93 Ohio App., 524, 114 N. E. (2d), 154.

Considering the complaint in the instant case in the light of these holdings, we find that it does not charge the appellant with any offense and that, for this reason, the sentence entered upon the complaint, the order suspending the same, and the order revoking such suspension and ordering said sentence executed are void, and that the first assignment of error above mentioned is well taken.

It follows that the order from which this appeal was taken should be and the same is hereby reversed at the costs of the state, and final judgment is entered in favor of the appellant discharging her from detention.

In the view we have taken of this case and the disposition we have made of it, it is unnecessary to consider or discuss assignment of error No. 2.

Judgment reversed.

Younger, P. J., and Middleton, J., concur.


author: Middleton, J.

text:
    Williams, Appellant, v. Williams et al., Appellees.
    (No. 417
    Decided June 12, 1953.)

      Mr. Obey VanByne and Mr. Foster King, for appellant.

      Messrs. Wetherill & Schwemmer, for appellees.
   Middleton, J.

This cause is in this court on appeal on questions of law and fact from the Court of Common Pleas of Hardin County, and was, by stipulation, submitted to the court on the transcript of the testimony taken in the court below, supplemented by certain additional testimony.

Plaintiff alleges in his petition that he is the owner of certain real estate in the village of McGuffy in Hardin county, and that he was the owner and operator of a restaurant thereon, and the holder of a D-l permit issued by the Department of Liquor Control of the State of Ohio.

The petition alleges further that plaintiff, on or about August 12, 1949, entered into an oral agreement with defendants for the operating and managing of such place of business on a 50-50 basis of the net profit; that the defendants entered into the management of said business; and that a part of said real estate was rented and the rents collected by the defendant. Plaintiff alleges also that he is the owner of all the chattel property used in connection with such business, and that during the year 1950, plaintiff received about $600 by way of a partial accounting and in 1951 about the sum of $75.

The petition states further that plaintiff had in his possession on or about March 14, 1950, two deeds, one from his parents for the real estate described in the petition, and one from plaintiff to defendants for an undivided one-half interest in such real estate; and that on March 14, 1950, such deeds, without his knowledge or consent, were presented to and recorded by the recorder, of Hardin county, Ohio.

The petition prays for an accounting by the defendants of the profits received by them in the management of such business and the rents received by them from such real estate, and that the deeds from plaintiff to defendants for one-half interest in such real estate be vacated, set aside and held for naught.

Defendants filed to this petition an answer and cross-petition, in which they admit that during the year 1949 they entered into an oral agreement with plaintiff relative to the purchase of the real estate located in McGfuffy, Ohio; admit that at said time, plaintiff was the owner of and operator of a business and holder of a D-l permit issued by the Department of Liquor Control; admit that such business was being operated in a building located upon the real estate described in plaintiff’s petition; admit that part of the building was rented and that plaintiff, from 1949 until such business was terminated, received a division of the profits from the operation of the business; and admit that on the 14th day of March, 1950, certain deeds relative to the real estate described in plaintiff’s petition were filed with the recorder of Hardin county by the defendant Mary Williams and that such deeds were recorded, as in the petition alleged.

Then follows a general denial.

Defendants, in' their cross-petition, say that they are the owners of the undivided one-half interest in the real estate described in the petition and that the plaintiff is the owner of the other undivided one-half interest in such real estate.

Defendants then say that on the 12th day of September 1949, they entered into an oral agreement with plaintiff for the purchase of the undivided one-half interest in the real estate described, together with the undivided one-half interest in all the equipment and the business located in the building on the premises therein described, and that immediately following such time, and in accordance with said agreement, entered into the operation of the business.

The cross-petition then sets forth that part of the agreement between the parties was that, the parties being the joint owners of such building and business, the plaintiff and defendant would alternate each week in the operation of the business, and that as a part of such agreement, plaintiff agreed to pay the defendant Mary Williams the sum of $15 per week to operate such business at such times as he was unable to take his turn in the operation thereof; that the plaintiff did take his turn in the operation of the business for approximately three weeks during the fall of 1949 and from that time he failed and neglected to take his turn in the operation thereof; that the defendant Mary Williams in accordance with the agreement did operate such business for the plaintiff during the times referred to and until the business was closed on November 6, 1951; that in accordance with such agreement, plaintiff paid to Mary Williams the sum of $160; and that there is now due her from the plaintiff the sum of $620, which she claims with interest.

Defendants then aver that they have fully accounted to the plaintiff for the operation of such business; that the plaintiff has received out of the profits of the business and money advanced by defendants to pay back taxes and accounts for which plaintiff was in arrears the sum of $1,319.11; and that the defendants have received out of the profits of said business $756.80 leaving an amount due these defendants from the plaintiff in the sum of $562.31, which defendants claim with interest.

The prayer of the cross-petition is that plaintiff’s petition be dismissed; that the court find that plaintiff and defendants are each the owners of the undivided one-half interest in the real estate described in the pleadings; that a partition of the real estate described may be made; that the defendant Mary Williams be awarded judgment against the plaintiff for $620, with interest; and that the defendants be awarded judgment against the plaintiff for the sum of $562.31, with interest.

The evidence is in conflict relating to the existence of a partnership between the plaintiff and the defendants.

However, there is' evidence which clearly sustains the conclusion that the plaintiff and the defendants were each the owner of an undivided one-half interest in the real estate upon which the business was operated and each the owner of an undivided one-half interest in the equipment and business conducted thereon, and that the business was conducted by the parties jointly as equal principals.

While supplies were purchased in the name of plaintiff only, this was made necessary by reason of the fact that the business was conducted under a liquor permit issued in the name of the plaintiff alone.

The agreement entered into by the parties and their acts and conduct in the operation of the business contain all the elements necessary to the formation of a partnership.

The agreement provided for a sharing of the net profits, as distinguished from gross profits, which in itself assumes the sharing of losses, if any.

Mutual agency is shown to exist by the evidence, each of the parties at times being in control of the business and authorized to bind the other in the creation of debts and obligations relating to the business.

That such an arrangement is in direct violation of the statutes of Ohio and that the parties thereto should be denied an accounting of the business between themselves, has been decided by the Supreme Court of Ohio, in the case of Nahas, Admr., v. George, 156 Ohio St., 52, 99 N. E. (2d), 898.

“2. It is unlawful for a partnership to carry on the business of selling beer and intoxicating liquor under a permit applied for by only one of the partners and issued in his name alone.

“3. The operation of such a partnership enterprise is illegal and in violation of public policy, and a court will not entertain an action by the administrator of a deceased partner, who held no permit to sell beer and intoxicating liquor, for an accounting from the surviving partner, but will leave the parties where it finds them. ’ ’

Under the above authority, the plaintiff is denied an accounting between himself and the defendants, and the defendant Mary Williams is denied a finding against the plaintiff on her claim set up in her cross-petition.

The court finds from the evidence that the plaintiff is not entitled to a cancellation of the deed from plaintiff to defendants for the one-half interest in the real estate described in plaintiff’s petition.

The court finds defendants have paid plaintiff the full purchase price of said one-half interest in the real estate described in the petition and the cross-petition, and that defendants are entitled to partition thereof, as prayed for in their cross-petition.

The court having disposed of all issues raised by the pleadings, this cause is remanded to the Court of Common Pleas for further proceedings in partition as may be required.

Judgment accordingly.

Younger, P. J., and Guernsey, J., concur.


text:
    Geyer, Appellant, v. The New York Central Rd. Co., Appellee.
    (No. 185
    Decided May 18, 1953.)

      Mr. William 8. Culp, for appellant.

      Messrs. Richmond é Richmond, for appellee.
   Per Curiam.

This appeal is on questions of law from a judgment dismissing plaintiff’s petition. Plaintiff instituted her action for damages for personal injuries claimed to have been suffered by her on May 23, 1949, because of the negligence of the defendant.. The petition was filed with the. clerk .of courts at 3:53 p. m. on May 23, 1951, and a praecipe for the issuance of summons was filed immediately thereafter. The summons was not issued until May 24, 1951, the day following the filing, and was served on the agent of the defendant company in London. Defendant demurred to the petition on the ground that the action was barred by the statute of limitations, having been brought more than two years after the cause of action arose. Section 11224-1, General Code.

Two errors are assigned. The first is that the court erred in holding that plaintiff had not commenced her action within two years after her cause of action arose. Specifically, it is the claim of the plaintiff that in view of the savings clause of Section 11231, General Code, her action was instituted within time.

Plaintiff orally and by brief made a forcible argument in support of the contention that she had conformed to the requirement of Section 11231, General Code, that diligent endeavor be made to secure service on the defendant, and that, having filed her petition with the clerk of courts and issued a praecipe for summons prior to the end of the limitation period, the onus of the issuance of the summons should not be placed upon her. Both of these questions were presented and determined in the first and second paragraphs of the syllabus of the case of McLarren v. Myers, Admr., 87 Ohio St., 88, 100 N. E., 121. Manifestly, it is not for this court to question the soundness of the pronouncement in the cited case. If it is erroneous, it must be corrected by the Supreme Court.

The second assignment is that by the savings clause of Section 11228, General Code, the statute of limitations does not run against the plaintiff because defendant is a foreign corporation engaged solely in interstate commerce. So much of Section 11228, General Code, as is pertinent to the assignment reads :

“When a cause of action accrues against a person, if he is out of the state * * * the period of limitation for the commencement of the action as provided in this chapter, shall not begin to run until he comes into the state. ’ ’

The only averment of the petition as to the corporate status of the defendant is “that said street (Main street in the city of London) is intersected or crossed on a level with said street by the railroad tracks of The New York Central Railroad, a corporation operating a railroad in Madison county, Ohio.”

This averment does not afford factual information from which it may be concluded either that the defendant was a foreign corporation or that it was engaged exclusively in interstate commerce.

In this court there have been proffered two certificates of the Secretary of the State of Ohio, one of which shows :

“The New York Central Railroad Company, an Ohio corporation with its principal office located at Albany, New York, was incorporated by consolidation filed December 22, 1914, and has continuously been an Ohio corporation from that date to the present time.”

The other certificate, among other things, discloses that:

“The principal office of said consolidation corporation shall be in the city of Albany, Albany county, New York, as found in consolidation agreement, filed December 22, 1914.”

These certificates may not be brought into the record in this proceeding, an appeal on questions of law.

In view of the status of the record we cannot find that the plaintiff has exemplified the facts upon which her contention is made that the quoted provision of Section 11228, General Code, tolls the running of the applicable statute of limitation against her.

Therefore, anything that we might say would be purely obiter. Several assumptions might be indulged in construing the question sought to be raised by plaintiff.

The means of accomplishing service upon a railroad company are set forth in Section 11288, General Code, as follows:

“If such corporation is a railroad company, whether foreign or domestic, and whether the charter thereof prescribes the manner and place, or either, of service of process thereon * * * the summons may be served upon any regular ticket or freight agent of such railroad company * * * or, if there be no such agent, then upon any conductor in charge of any train or car upon such railroad * * * in any county in this state, in which such railroad * * * is located, or through which it passes.”

This is a specific provision as to the method of subjecting a railroad company to the processes of a court and, so far as we know, is the sole and only method of securing such service. Thus, at all times, after the plaintiff’s cause of action arose the defendant was subject to service of summons under the statute, and this was true whether it was an Ohio or a foreign corporation. In our opinion, Section 11228, General Code, does not contemplate a situation such as is found here.

The purpose to be accomplished by Section 11228, General Code, is to prevent the statute of limitations running against a party where, during the statutory period, the defendant sought to be served may not be served with summons. There is no provision for personal service upon a nonresident person, and such person cannot be subjected to a personal judgment without such service. To permit a statute of limitation to run against a plaintiff, in such situation, would be highly inequitable and to prevent which Section 11228, General Code, was enacted.

Plaintiff cites two cases. Commonwealth Loan Co., Inc., v. Firestine, 148 Ohio St., 133, 73 N. E. (2d), 501, 172 A. L. R., 933, and Couts v. Rose, 152 Ohio St., 458, 90 N. E. (2d), 139. In the first case, the promisee held a cognovit note by the terms of which judgment could have been confessed against the defendant without service of summons during the limitation period. The court refused to restrict the plaintiff to the waiver of service so provided. Judge Zimmerman, writing the opinion, quotes from Stanley v. Stanley, Admr., 47 Ohio St., 225, 24 N. E., 493, 8 L. R. A., 333, 21 Am. St. Rep., 806, as follows:

“ ‘The first clause (of the statute) [Section 11228, General Code] provides for the case where the defendant is absent from the state when the cause of action accrues; the second for the case where he departs from the state after it has accrued. In the first, the statute begins to run when he [the defendant] comes into the state; in the second, it ceases to run, and is suspended, until he returns to the state. The purpose, then, of the statute is perfectly plain; Presence of the defendant within the state, so that he may be sued, avails in his favor; absence from the state, whether at the accruing of the action or afterwards, suspends the running of the statute. ’ ’ ’

The opinion continues to the effect that had the General Assembly intended to remove from the operation of the statute those causes of action against persons absent from the state but against whom judgment might be taken by confession, it could have done so by the use of appropriate language.

In the second case, the plaintiff also had two means of accomplishing service of summons upon the defendant. The action was for personal injuries sustained in an auto .collision and the defendant was a nonresident. The court said that the fact that service could be had upon the defendant by virtue of Section 6308-1 et seq., General Code, did not require the plaintiff to rely alone on that basis for service and that Section 11228, General Code, was effective to toll the running of the statute of limitations.

In both cases, the court declined to restrict the plaintiffs to one method of obtaining service upon defendants when another method might be available. Therein is a distinction to be made between the cited cases and the instant cause. Here, at all times, the defendant was subject to service of summons in the one manner prescribed by the statute and such service would have brought the defendant into court for all purposes and would have made it amenable to a personal judgment against it.

We do not discuss the question further because all that we have said is not required by the record and probably should not be indulged, but counsel have argued the question extensively, and we have therefore considered it briefly.

The judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, P. J.

text:
    Ballinger, d. b. a. Ballinger Trailer Sales, Appellant, v. Craig et al., Appellee.
    (No. 2257
    Decided November 16, 1953.)

      Messrs. Pickrel, Schaeffer & Ebeling, for appellant.

      Mr. J. D. Chamberlain, Jr., for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment rendered by the Municipal Court of Dayton in favor of the defendants, appellees herein, in an action on a promissory note given in the purchase of a house trailer by the defendants, who were minors at the time of the execution of the note.

The defendants defended on the ground of minority, disaffirmed the contract, and claimed the trailer was not a necessary. The trial court held that under the facts presented the trailer was not a necessary. This ruling furnishes the sole ground of error.

Section 8382, General Code, in part, provides:

“When necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor.

“Necessaries in this section mean goods suitable to the condition in life of such infant or other person, and to his actual requirements at the time of delivery. ’ ’

Under this section, in determining whether a given article is a necessary, two factors are involved, first, is the article suitable to the condition in life of the infant, and, second, is the article actually required at the time of delivery?

An article may be classified as suitable to the condition in life of the infant, but may not be actually required at the time of the delivery. The infant’s requirements may be fully satisfied. Under one set of facts an article may be a necessary and under a different set of facts it may not be. A necessary is a relative term, depending upon the station in life and the actual requirements of the infant. 21 Ohio Jurisprudence, 876, Section 14.

In the case at bar the evidence shows that the defendants were husband and wife, were approximately 19 years of age at the time of the purchase, were both employed, and that prior to the purchase of the trailer they were living with the parents of the husband.

The basic reason for the principle of law which permits an infant to bind himself for necessaries is for his own welfare; otherwise, he may be deprived of the necessities of life. Lodging falls in the class of necessaries for which an infant may be bound. What particular kind of lodging is necessary, is a question of fact. Johnson v. Newberry (Texas), 267 S. W., 476. In that case the court held that a home belongs to that class of things considered as necessaries. However, in that case the infant was in need of lodging. It was not furnished to him by a parent, as in the instant case. In that case the court observed this distinction, and quoted with approval from 14 Ruling Case Law, 256, a part of which is as follows:

“ ‘To enable an infant to contract for articles as necessaries, he must have been in actual need of them, and obliged to procure them for himself. They are not necessaries as to him, however necessary they may be in their nature, if he was already supplied with sufficient articles of the kind, or if he had a parent or guardian who was able and willing to supply them. The burden of proof is on the plaintiff to show that the infant was destitute of the articles, and had no way of procuring them except by his own contract. ’ ’ ’

In Lindsey v. Hubbard, 49 N. W. (2d), 299, it is held that lodging and a home is a necessary, but that whether a house tráiler is a necessary is a question of fact. In that case, the minors were living away from the parents’ home and receiving no support from them. However, in that case a statute of South Dakota was given controlling effect and provided that an infant may not disaffirm a contract for a necessary when not under the care of the parent. In Monnett v. Flynn, 32 Ohio Law Abs., 292, it was held that a minor is liable for house rent as a necessary, not by virtue of contract, but by virtue of occupying it with his parents. However, in that case it appears that a defense of minority was never asserted before judgment.

While it is regarded as a good social custom for the young married couple to reside apart from the parents, and while it may be advisable in the interests of family harmony, such custom or living apart does not in and of itself determine the legal liability of a minor for necessaries.

Under the facts in this case, we are of the opinion that a proper showing has not been made that defendants actually required the house trailer at the time of the delivery, due to the fact that defendants were furnished lodging by the husband’s parents. Section 8382, General Code.

We have not considered the question, which appears not to have been raised by counsel, whether the plaintiff should not have sued for the reasonable' value rather than on the note itself.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.