text:
    Saalfeld, Appellee, v. Saalfeld, Appellant.
    (No. 186
    — Decided July 5, 1949.)

      Messrs. Ely, While S Davidson, for appellee.

      Mr. James W. Walker, for appellant.
   Ross, P. J.

This is an appeal from a decree of divorce entered by the Court of Common Pleas of Clermont County.

The contention of the defendant appellant is that the plaintiff bad not acquired a bona fide residence in Ohio for one year prior to the filing of her petition for divorce, as required by Section 11980, General Code, which, in part, provides that, “except in an action for •alimony alone, the plaintiff must have been a resident •of the state at least one year before filing the petition.”

The residence required is domiciliary in character (Glassman v. Glassman, 75 Ohio App., 47, 60 N. E. [2d], 716), that is, the residence for one year prior to 4he- filing of a petition for divorce must be accompanied by an intention of plaintiff to make Ohio his permanent home. A temporary residence, unaccompanied by such intention, no matter how long it may be ■extended, is ineffective to present compliance with the requirements of the statute. When it appears that a person has an established domicile, the presumption of fact is that such domicile continues. In order to dissipate such presumption, it is necessary to prove by a preponderance of the evidence that such person has (1) intended to change such domicile, (2) has intended to select a new domicile, and (3) has accompanied such intention with acts indicating a bona fide selection of a new domicile. Village of Indian Hill v. Atkins (July 5, 1949), No. 7109, Court of Appeals for Hamilton county.

Every person must be domiciled somewhere. Until a new domicile is selected and occupied as such, the status in the original domicile is retained. Atkins case, supra. In the instant case, the plaintiff was unquestionably domiciled prior to 1942 in Sistersville, West Virginia. She came to Ohio and began a course of nursing training in Christ Hospital in the city of Cincinnati August 25, 1942. She remained in training until February 1946. She married the defendant in Kentucky March 17, 1946. The defendant was domiciled in Kentucky at that time, and has always retained such domicile. Plaintiff traveled from one army •camp to another with her husband, who was a captain in the air corps. No permanent domicile was acquired by the plaintiff during that period.

In October 1948, plaintiff and her husband acquired a domicile in Clermont county, Ohio. The petition was filed December 10,1948. The issue involving the domicile of the plaintiff hinges upon her intention at the time she was in nurses training in Cincinnati. She was asked by the court, “Now you claim you are a resident of the state of Ohio since 1942?” Her answer was, “Yes, sir.” This is no stronger than the sworn-allegations of her petition. No corroborative evidence appears in the record. On the contrary, it appears that as late as 1948 she was attempting to vote in West Virginia, which is entirely inconsistent with a conviction that she was a resident of Ohio, that is, domiciled therein. Certainly, if she had retained a consistent intent that Ohio should be her permanent home, she would not have considered voting in West Virginia.

The evidence leaves much to be desired in the way of certainty and scope. It leaves the court in a state of uncertainty, and, in view of the burden resting upon the plaintiff to sustain the proof of her statutory residence in Ohio for one year prior to filing her petition, it must be concluded that such evidence as appears in the record renders the decree of the court one not sustained by the weight of the evidence, but contrary thereto. *

The case of Glassman v. Glassman, supra, has been cited by counsel. It is to be noted that in that case the wife entered the court with a presumption of jurisdictional domicile in her favor, and that no evidence was introduced to show that such domicile had been relinquished — the sole reason for the holding of the trial court that it had no jurisdiction over plaintiff being the two fictions, (1) that the soldier husband retained the domicile possessed upon entering the service and (2) the common-law fiction that the wife takes the domicile of her husband on marriage. The holding in the Glassman case is that a clear, factual situation showing bona fide domicile cannot be set aside by fictions, if such course will produce an injustice.

In the instant case, the evidence does show that the plaintiff at the time of filing her petition had been domiciled in Clermont county for some months, but for less than a year.

In view of the evidence showing an actual residence in Ohio for four years or more, the domicile of the plaintiff at the time of filing the petition and her positive declaration in the record that Ohio has been her permanent home, it is the conclusion of this court that it would not be justified in entering judgment for defendant, but, on the contrary, that the judgment of the trial court should be reversed and the cause remanded for a new trial, which is so ordered.

Judgment reversed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Reisz, Appellee, v. St. Paul Fire & Marine Ins. Co., Appellant.
    (No. 7091
    — Decided May 23, 1949.)

      Messrs. Cowell & Fletcher, for appellee.

      Mr. Robert O. Smith, for appellant.
   By the Court.

The judgment under review on this appeal is upon a policy on an automobile insuring against loss by fire.

In its answer the defendant pleaded affirmatively that one of the provisions in the policy was that it should not apply “while the automobile is subject to any * * * mortgage or other incumbrance not specifically declared or described in the policy. And on or about January 14, 1948, plaintiff encumbered said property by executing a mortgage thereon to the Aetna Finance Company, which encumbrance was not specifically declared and described in the policy of insurance. ’ ’

It will be observed that the allegation was that the insurance should not apply while the encumbrance was on the property, and it will' also be observed that there was no allegation that the encumbrance was on the property at the time of the loss.

The journal entry recites that a hearing was had upon the pleadings, “the evidence,” etc., and that a judgment was rendered upon the finding at that hearing. The record contains a bill of exceptions in which it is recited that a policy of insurance and a letter were introduced in evidence, but neither was incorporated in the bill in any way. The certificate of the trial judge does not recite that it contains all the evidence.

In this state of the record, it is impossible for this court to pass upon the assigned error, or to find that prejudicial error affirmatively appears on the record.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Fess, J.

text:
    Gawne, Appellant, v. Casanova et al, Appellees.
    (No. 613
    — Decided October 18, 1948.)

      Messrs. Young & Young, for appellant.

      Mr. James L. McCrystal, for appellees.
   Fess, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas sustaining a demurrer to the amended petition of plaintiff.

In her amended petition, plaintiff claims that on or about July 27, 1946, she entered into an agreement with the defendants wherein defendants agreed to purchase certain real estate from the plaintiff for the sum of $4,200, payable $54 in cash and $350 on July 29, 1946, with the balance of $3,796 payable in cash upon delivery of the deed to the premises. The agreement provided further that the defendants were to be given possession of the property on July 29, 1946; and that plaintiff should give a warranty deed free and clear of all encumbrances except taxes for the first half of the year 1946, together with evidence of title in plaintiff, in'accordance with the terms of the agreement.

Plaintiff alleges further that on or about August 10, 1946, plaintiff delivered to the Erie County United Bank, as agent f®r the defendants, a good and sufficient warranty deed to the real estate free and clear of all encumbrances; that on or about November 15, 1946, the bank advised the plaintiff that plaintiff did not have a good title to the premises; that thereafter plaintiff made repeated demands upon the defendants and upon the bank that the defendants carry out their agreement to pay plaintiff the amount due under the agreement; that on or about February 8, 1947, plaintiff sent to defendants a statement of title in the plaintiff to the real estate; that defendants failed and refused to pay the plaintiff pursuant to the agreement; that on or about April 8, 1947, plaintiff demanded that the defendants either make prompt payment to the plaintiff of the amount due on the agreement or return the real estate to the plaintiff; that defendants continued to retain possession of the property; and that on July 3,1947, the defendants caused the Erie County United Bank to pay the plaintiff the balance due upon the agreement.

Plaintiff alleges further that by reason of the refusal of the defendants to comply with the terms of the agreement she was deprived of the use of her property from August 10, 1946, until July 3, 1947; that she was deprived of the use of such sum of $3,796 from August 10,1946, until July 3,1947; and that she was compelled to pay taxes in the sum of $19 and insurance in the sum of $18.50, all to her damage in the sum of $575 for which plaintiff prays judgment.

It is apparent from the face of the petition that plaintiff did not comply fully with the agreement of July 27, 1946, until February 8, 1947, on which, date plaintiff alleges she delivered the certificate of title to the agent of the defendants; and any rights which might have accrued to plaintiff did not, therefore, accrue until February 8, 1947.

It is contended by the defendants that the plaintiff in accepting the balance due when the same was tendered on July 3, 1947, thereby waived any claim which she might have had to recover for loss of the use of the balance of the purchase price.

For aught the petition shows, the payment of the taxes and insurance premium was voluntary and was not made at the instance and request of the defendants. Essentially, the claim set forth in the petition is for damages suffered by plaintiff arising out of the delay in payment of the balance of the purchase price. Whether the amount of the damages claimed is measured by the normal rate of interest upon the upaid balance, by the reasonable value of the loss of the use of the premises, or by the amounts paid for taxes and insurance, the claim is one for an unliquidated amount.

Acceptance of less than the amount presently or past due upon a liquidated and undisputed indebtedness, even in full payment thereof, is not an accord and satisfaction. Yin v. Amino Products Co., 141 Ohio St., 21, 46 N. E. (2d), 610. Where interest is payable by the terms of a contract, it becomes an integral part of the debt and the payment of the principal sum does not prevent a subsequent recovery of the interest. 100 A. L. R., 98.

But where a contract is silent as to interest, so that, if it can be recovered at all, it is an incident of the debt sued for and recoverable only as damages to make good to the creditor the loss he has sustained by reason of the breach or default, an action to recover the interest cannot be maintained after the payment of the principal, as such interest cannot exist without the debt, and, the debt being extinguished, the right to claim interest must necessarily be extinguished also. 100 A. L. R., 105.

This principle has been followed by this court in Heidelberg College v. National City Bank of Cleveland, Exr., 65 Ohio App., 212, 29 N. E. (2d), 572.

As to the claim of plaintiff for the use of the premises, inasmuch ¿s it is one for unliquidated damages, her acceptance of the payment of the balance in full likewise extinguishes her claim for damages.

The judgment is affirmed.

Judgment affirmed.

Conn and Carpenter, JJ., concur.


text:
    The Slusser-McLean Scraper Co., Appellee, v. The United Electrical, Radio & Machine Workers of America et al., Appellants.
    (No. 143
    — Decided March 21, 1949.)

      Mr. H. K. Forsyth, for appellee.

      Messrs. Davis, Davis & Handelman and Mr. Millard E. Hussey, for appellants.
   By the Court.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Shelby county, finding 14 persons guilty of contempt for a violation of a restraining order issued by the court growing out of a strike of the employees of the Sl’usser-MeLean Scraper Company, the plaintiff, appellee herein.

We have carefully examined the record and considered the several grounds of errog assigned by the defendants, appellants herein. The determination of the issues raised depends largely on the factual development in the case. There is a clear conflict in the evidence on the determinative issues which the trial court resolved against the defendants. It was the province of the trial court to pass on the credibility of the witnesses. If the trial court believed the testimony of the witnesses for the plaintiff, which the trial court undoubtedly did accept as true, the finding of guilty was justified. There was ample evidence to support the judgment of the trial court by the degree of proof required.

There being no error in the record prejudicial to the defendants, the judgment is affirmed.

Judgment affirmed.

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


text:
    Vertich, Appellee, v. Sander, Appellant.
    (No. 956
    — Decided June 22, 1949.)

      Messrs. Baden & Fiehrer, for appellee.

      Mr. Bradley Schaeffer, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Butler County, rendered in favor of the plaintiff in an action tried to the court without a jury.

In the petition the plaintiff sets out a check for $5,000, dated January 4, 1945, and signed by the defendant, which plaintiff claims he presented for payment to the bank upon which the check was drawn and that payment was refused because the defendant-maker had no funds therein.

The defendant in his answer sets up payment of this check, on or about February 1, 1945, by delivery of pay-roll checks which defendant had cashed for employees and some $1,000 in cash, and alleges that his check to the plaintiff upon which the action was predicated was not returned to him, because the plaintiff could not find it and that he was told it would be destroyed when the plaintiff found it.

The evidence shows that this first check upon which suit is brought was found by plaintiff with a will, with' which it had been mislaid. This was in March 1947.

Now the evidence clearly shows, and it is not disputed, that the original indebtedness of the defendant to plaintiff was paid by transfer of pay-roll checks and cash, and the plaintiff did not surrender the check given by the defendant to plaintiff, because the plaintiff could not find It.

The defendant pleaded payment of this check and proved payment.

The reply was simply a general denial and raised no new issue.

It appears from the record that the trial was not confined to this simple issue. Transactions- similar in character to the original transaction were carried on, that is, the plaintiff advanced money to the defendant to cover the payment of pay-roll checks presented to the defendant, who had purchased the plaintiff’s cafe. Finally, it appears that there was an advancement by plaintiff which he claims the defendant did not cover by deposit of pay-roll checks or cash, as had been done in the past. The defendant claims this last advancement of $5,000 was paid directly to plaintiff. The plaintiff claims he never received it. Apparently, both parties accepted this development of the original action into an action for an unpaid balance of a running account, in which the plaintiff advanced money and received payment until the last advancement. Having so accepted this theory of the controversy, it is too late after judgment to question the theory upon which the case was tried.

The positions of the plaintiff and defendant are wholly irreconcilable. Hither the plaintiff or the defendant is mistaken about the final settlement.

The trial court in its opinion reviews at length the inferences to be drawn from facts collateral to the positive testimony of the parties.

It is apparent, as stated by the trial court, that the defendant assumed the burden of showing payment of any indebtedness due plaintiff.

In the opinion of the court he failed to sustain the burden of showing that he had paid the final advancement — a renewal of the original debt.

There was substantial evidence to sustain the conclusion that at the time of filing the petition, the defendant owed the plaintiff $5,000, which originated in the check forming the basis of the action.

The conclusion of the trial court, that the evidence failed to sustain the claim of defendant that this final renewal of the original debt was paid, is the result of the disposition of a factual issue, and the record does not justify setting aside such conclusion.

The judgment is affirmed.

Judgment affirmed.

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


author: Miller, P. J.

text:
    Smith, Admr., Appellee, v. Unterburger et al., Appellees; Cline et al., Appellants.
    (No. 509
    — Decided March 29, 1949.)

      Messrs. Smith & Smith and Mr. George H. Smith, for appellees.

      Messrs. Miller do Finney and Mr. Neal W. Hunter, for appellants.
   Miller, P. J.

This is an appeal on questions of law from the Probate Court of Greene county.

The sole question presented is whether the trial court erred in holding that the so-called half and half section, to wit, Section 10503-5, General Code, does not apply to the alleged and admitted facts as set forth in the pleadings and agreed statement of facts.

These facts show that Charles Cline, husband of of Barbara Cline, died on July 4, 1946, intestate, without issue, leaving no surviving parents, and Barbara Cline, his surviving spouse and sole heir at law; that Barbara Cline, prior to the death of her husband, was .an incompetent person and a ward of the Dayton State Hospital, and George H. Smith was her duly appointed, qualified and acting guardian; that it was necessary to sell the real and personal property to pay ■debts, widow’s allowance and costs of administration; and that the relict wife’s distributive share from the estate amounted to $4,345.47 which was paid to her guardian in the form of several checks drawn upon The Farmers & Traders Bank of Jamestown, Ohio. The guardian immediately deposited the checks in his name as guardian of Barbara Cline in The Spring Valley National Bank of Spring Valley, Ohio. This the guardian was authorized to do by virtue of Section 10506-46, General Code. In addition to the aforesaid amount, other checks were deposited in the guardianship account representing the widow’s exempt property and her year’s allowance. This account was in existence at the time of the relict’s death, although withdrawals had been made from time to time for her necessary expenses.

Counsel agree that Section 10503-5, General Code, is applicable to the facts here presented, provided the property the relict left was the “identical” property she received from her husband’s estate. The appellants urge that it is, that the assets came to the guardian as choses in action and that they were still such at the time of the relict’s death. This may well be true, but the question still remains, are the two choses in action “identical”? We do not think they are. The choses in action the guardian received were in the form of checks drawn upon The Farmers & Traders Bank. The chose in action of which she died seized was one against The Spring Valley National Bank. It cannot be said that they are “identical,” for they are against different banking institutions.

In the case of Speidel, Admr., v. Schaller, 73 Ohio App., 141, 55 N. E. (2d), 346, the relict widow transferred certain municipal bonds in exchange for the-same corporation’s refunding bonds. The court held that these were not identical within the meaning of Section 10503-5, General Code. Many of the cases cited by counsel are not of much assistance to us as the facts are not on all fours with the case at bar.. However, in the case of Kolthoff, Admx., v. Kolthoff, 79 Ohio App., 427, 74 N. E. (2d), 394, the facts are almost identical, with the exception that the proceeds were deposited in a savings account instead of a commercial account. At page 431 Stevens, J., says:

“Was the $3700 savings account of Philip Opper the identical property which he received from the estate of his deceased wife?
“The answer is obviously 'no,’ for deposits, whether saving's or commercial, received by a bank from a depositor, in the absence of an agreement to the contrary, become the property of the bank and give rise-to a relationship of debtor and creditor between them. Smith et al., Trustees, v. Fuller, 86 Ohio St., 57, 99 N. E., 214, L. R. A. 1916C, 6, Ann. Cas. 1913D, 387. Hence,. Philip Opper was a creditor of the bank, having owing-to him an obligation which the bank could and was required to pay in accordance with its regulations, to which Opper subscribed when he placed his money in a savings account.
“His claim was not against specific money held by the bank, but against, its commingled assets.
“There was no identity of what he received and: what he left at his death.
“The section (10503-5, General Code) had no application under the facts of this case, and the Common Pleas Court correctly resolved that question.”

We are in accord with the legal principles announced in the Kolthoff case, supra, and, therefore,, are of the opinion that the trial court did not err in-holding that the property under consideration was not identical property and, therefore, does not pass under Section 10503-5, G-eneral Code.

The judgment is affirmed.

- Judgment affirmed.

Hornbeck and Wiseman, JJ., concur.


text:
    The State, ex rel. Lee, v. Alvis, Warden.
    (No. 4294
    — Decided July 5, 1949.)

      Mr. Robert Lee, in propria persona.

      Mr. Herbert S. Duffy, attorney general, and Mr. Walter R. Hill, for respondent.
   By the Court.

This is a proceeding in habeas corpus originating in this court.

Where the court which tried and sentenced a petitioner had jurisdiction of the person and of the offense charged and there is no showing of a denial of due process, the petitioner will not, in a habeas corpus proceeding, be discharged from custody. State, ex rel. Conners, v. DeMuth, Supt., 96 Ohio St., 519, 528, 118 N. E., 98; 20 Ohio Jurisprudence, 425, Section 6.

Petitioner remanded, to custody.

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


text:
    The Univis Lens Co., Appellee, v. United Electrical Radio & Machine Workers of America, CIO, et al., Appellants.
    (No. 2011
    — Decided June 8, 1949.)

      Messrs. Smith, Schnacke é Compton, for appellee.

      Mr. Eugene A. Mayl and Mr. Thomas B. Talbot, for trial judge.

      Messrs. Davis, Davis é Handelman and Mr. John B. Ober, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Montgomery County entered on August 3, 1948, finding the defendant, appellant herein, Louis Kaplan, guilty of direct contempt of court.

The record discloses that Kaplan and four others, on August 2,1948, had been found guilty of contempt a second time for violation of the court’s injunction; that the court announced it would finally dispose of the matter at 10 o’clock on the following morning; and that these five parties had been attached under order of the court and were in the custody of the sheriff. At the adjournment of court on August 2, and upon the express promise of this defendant and the other four to appear in court at 10 o’clock on the following morning, the court permitted them to go to their homes rather than remain in jail over the night. On the following morning all the defendants appeared as promised with the exception of Kaplan. After waiting for his arrival for some time the court ordered the sheriff to produce him. At 11:30 a. m., Kaplan voluntarily appeared in court. The court thereupon demanded an explanation and Mr. Davis, counsel for the defendant, then made the statement to the effect that the defendant had personal injuries which kept him awake most of the night and that as a result he had overslept and had not intended to violate the court’s order. The court then found the defendant guilty of contempt and pronounced sentence. The defendant then apologized to the court for his indiscretion and made a further explanation which was practically the same as that made by his counsel. The court then suspended five days of the 15-day jail sentence, which had been imposed, stating that he did not think the violation of the court’s order was intentional.

The first assignment of error is that the finding of the court is contrary to law in that contemptuous intent is a necessary element of the offense which the court found not to exist. Whether intent is a necessary element, it seems, is dependent upon the nature of the act complained of. If it was committed in the presence of the court, or so near the court or judge as to obstruct the administration of justice, the proceeding would be a summary one under Section 12136, General Code. Under this section we are of the opinion that the intent is not a necessary element. On the other hand, if the act comes under any of the classifications set forth in Section 12137, General Code, it seems that a different rule applies. In 9 Ohio Jurisprudence, 14, Section 3, it is said:

“Acts committed in the presence of the court, particularly, are assumed to have been done with intent to show some disrespect. Hence in a proceeding under Section 12136 of the General Code, which is but declaratory of the common law, it is not necessary' to aver or prove intent.”

The same principle is announced in Steube v. State, 3 C. C., 383, 387, 2 C. D., 216:

“It is claimed on his behalf that he did not intend to obstruct the administration of justice by his assault upon Mr. Huling, and that the evidence fails to show any such intention. Treating this as a proceeding under Section 5639 [now 12136], which in our judgment is but declaratory of the common law, it is not necessary to aver or prove intent. Whoever by misconduct obstructs the administration of justice does so at his peril, and is guilty of contempt.”

In 12 American Jurisprudence, 439, Section 73, it is said:

“The oath of a contemner is no longer a bar to a prosecution for contempt. Under the common-law rule, a denial of the facts upon which contempt proceedings are based is absolutely conclusive upon the court, and no evidence, can be received to contradict it. The rule, however, never obtained in courts of equity. In such courts the answer of the accused may be contradicted by other evidence. The only legitimate effect of a subsequent denial of intention to insult the court, if such denial is sincere and bona fide, is to mitigate the punishment.”

A recent decision of the Supreme Court of the United States is that of Fisher v. Pace, 336 U. S., 155, 93 L. Ed., 435, at page 438, 69 S. Ct., 425, wherein we quote Justice Reed:

“Historically and rationally the inherent power of courts to punish contempts in the face of the court without further proof of facts and without aid of jury is not open to question. This attribute of courts is essential to preserve their authority and to prevent the administration of justice from falling into disre-' pute. Such summary conviction and punishment accords due process of law.”

In the footnote to the Fisher case, supra, reference is made to Ex parte Terry, 128 U. S., 289, 313, 32 L. Ed., 405, 412, 9 S. Ct., 77:

“We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge' of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the officers charged with the duty of administering them.”

It is further urged by defendant Kaplan that the court erred in finding that a direct contempt was committed by the defendant; and that if any such an act was committed it would have been under Section 12137, General Code. It is well settled, not only by statutory law but also by judicial recognition of the inherent power of the courts to orderly administer justice, that a contempt in the presence of the court or so near thereto as to obstruct the administration of justice, may be punished summarily. Section 12136, General Code. But entirely apart from the statutory authorization, the Supreme Court of Ohio has held that the courts have the inherent power to punish summarily for contempts, such power being inherent and necessary to exercise judicial functions, and that a statute cannot abridge or limit this inherent power. Hale v. State, 55 Ohio St., 210, 45 N. E., 199, 60 Am. St. Rep., 691, 36 L. R. A., 254; State, ex rel. Turner, Atty. Genl., v. Albin, 118 Ohio St., 527, 161 N. E., 792. Such statutory powers are merely cumulative and in addition to the inherent powers of the court in such matters.

In direct contempt cases punishment may be adjudged informally and at once, without the filing of charges, the issuance of process or the taking of evidence. In Matter of Lands, 146 Ohio St., 589, 595, 67 N. E. (2d), 433; In re Hannberger, ex parte, 19 C. C., 651, 10 C. D., 561. The above section of the Code, authorizing a summary punishment, has been applied by the courts to various acts which delayed and interfered with trials, or otherwise obstructed the administration of justice, even though not in the courtroom in the physical presence of the court. The Court of Appeals for Crawford county, in Beach, Jr., v. Beach, 79 Ohio App., 397, at page 404, 74 N. E. (2d), 130, very recently said:

“When they speak of ‘in the presence of the court,’ the courts have universally held that it is more than the idea of physical propinquity.
“Neither place nor distance from the court determines whether the act complained of is done constructively in the presence of the court. However, if the act is of such character and is done under such circumstances that naturally its effect would be felt in the actual administration of justice, then the act is as much done in the court’s presence as if the person doing the act were actually in the court’s presence.”

Likewise it has been held to be a contempt, which may be punished summarily, for a party being tried for contempt to fail to promptly appear at the appointed time following a court adjournment. In re Hannberger, supra. A summary proceeding has been used to punish as a contempt an assault made upon the prosecuting attorney several blocks away from the courthouse, during an adjournment of court, which resulted in a delay of the trial. Steube v. State, supra. See, also, State, ex rel. Shroder and Darby, v. Shay, 3 N. P. (N. S.), 657, 16 O. D. (N. P.), 446.

We are, therefore, of the opinion that the trial court properly found that the conduct of the defendant was a direct contempt of the court. We find no error in the record and the judgment is affirmed.

Judgment affirmed.

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


author: Hurd, J.

text:
    In re Estate of Hildebrant: Hildebrant, Exr., Appellant, v. Department of Taxation, Appellee.

      (No. 21089
    — Decided March 7, 1949.)

      Messrs. Thompson, Riñe <& Flory, for appellant.

      Mr. H. 8. Duffy, attorney general, for appellee.
   Hurd, J.

This is an appeal on questions of law from a judgment of the Probate Court wherein that court held taxable under Ohio inheritance tax laws four gifts inter vivos made by the decedent eleven years prior to her death.. The appeal is prosecuted by Robert J. Hildebrant, executor of the last will and testament of Katharina Hildebrant, deceased, from the order of the Probate Court dated February 6, 1948, overruling exceptions to the assessments of inheritance taxes upon the gifts made by the decedent to her four children in 1935, in the sum of $50,000 each. The Probate Court at the same time sustained exceptions to another gift of $50,000 made at the same time, to four grandchildren of the decedent, the same being the children of decedent’s deceased daughter, Katherine Hildebrant Pfahl, in the sum of $12,500 each, holding that such gifts were not taxable. No appeal was filed by the Department of Taxation of Ohio from the order of the Probate Court sustaining the exceptions in respect to the gifts to the grandchildren.

There appears to be no dispute as to the facts. Katharina Hildebrant who died January 31, 1947, at the age of 86 years, was born in Gruenstadt, Germany, in the year 1860. In the year 1886 she married Charles R. Hildebrant, the issue of the marriage being Katherine H. Pfahl who died in 1919; Hugo A. Hildebrant who died in 1942; Mathilda H. Pfahl who died in 1944, and Robert J. Hildebrant and Frances P. Haag. The decedent’s husband is still living.

Russell Arnold was the Hildebrant family physician from 1937 to the date of decedent’s death. From his professional observations during that period Katharina Hildebrant enjoyed good health, was active in the affairs of her household, church and family until shortly before her death. She enjoyed unusually good health until 1944. In the last years of her life she suffered from heart trouble which resulted in her death on January 31, 1947. She had a strong constitution and retained her mental faculties until the time of her death.

For some years prior to 1893, Charles R. Hildebrant, decedent’s husband, operated a wholesale, meat business in partnership with a relative. In that year his partnership was terminated and Mr. Hildebrant moved to the present location of The Hildebrant Provision Company on Walton avenue in Cleveland, Ohio. In 1906 The Hildebrant Provision Company, a corporation, was organized. The stock of this company was closely held by Charles R. Hildebrant and Katharina Hildebrant, there being only a small amount held by individuals other than the Hildebrant family. The company was a family enterprise with the father and mother and their five children being all active in company affairs.

The capital stock of the company consists of 1,500 preferred shares and 1,500 common shares, of which Katharina Hildebrant at the time of her death owned 300 preferred and 300 common shares. Substantially all the rest of the stock, both common and preferred, was owned by' Charles Hildebrant. At the time of the death of Katharina Hildebrant, a unit consisting of one preferred share and one common share was worth $500.

Katharina Hildebrant rendered numerous services to the company and acted as vice-president until the time of her death. Hugo Hildebrant, a son of the decedent, drove the delivery wagon for the company at the age of fourteen years and worked in the factory part time. After one year at Spencerian College, at the age of seventeen years, he began taking care of the books of the company and later became secretary and treasurer of the company, which position he retained until the time of his death.

Robert J. Hildebrant, a son of the decedent, began to sell sausage for the company in the market house at the age of eleven years and went with the company on a full time basis when he was 18 years of age. He worked there continuously, later becoming superintendent and at the time of his brother Hugo’s death, was general manager of the company.

Katherine H. Pfahl, a daughter of the decedent, worked in the company’s retail market stand at the West Side Market House and did clerical work for the company until the time of her death in 1919.

Prances P. Haag, a daughter of decedent, worked part time in the office and later became secretary of the company.

The company developed into a very successful family enterprise in the processing of meats, growing from an organization of about 15 employees in 1906 to about 150 employees in 1947. At the time of the death , of Katharina Hildebrant, the company owned assets worth approximately $2,000,000.

Charles R. Hildebrant, decedent’s husband, was for many years the active operating head of the company, but about 1933 he became less active in the company and some of the responsibility for operating it was placed with his two sons, Hugo A. Hildebrant and Robert J. Hildebrant.

At the Christmas season in 1935, Katharina Hildebrant made a gift to her four children above referred to, in the sum of $50,000 each and a gift of $50,000 to her four grandchildren, the children of her deceased daughter, Katherine Hildebrant Pfahl, in equal shares. The gifts were made largely in government bonds and cash and the securities were actually transferred and delivered to the donees on December 27, 1935.

According to the federal gift tax returns filed with the government the gifts were “to create or to increase independent estates of the donees and permit them to receive the enjoyment of these gifts.” After making the gifts the decedent retained property having a value of between $500,000 and $550,000. Her estate has been accumulated substantially from dividends of The Hildebrant Provision Company and from income on securities originally purchased from dividends received from the company. The gross value of her estate was $750,000 at the time of her death in 1947. She retained until her death her entire stock interest in The Hildebrant Provision Company.

Robert J. Hildebrant, son of the decedent, testified upon the hearing that his mother advised him some time prior to Christmas in 1935 that she intended to make a substantial Christmas gift to her children as a reward for their contributions to The Hildebrant Provision Company and also to create independent estates so that they could enjoy this money.

The assignment of error is as follows:

“The Probate Court erred in determining that the gifts made to the decedent’s' four children, eleven years before her death, were subject to Ohio inheritance tax as having been made fin contemplation of death’ for the following reasons: (1) The department wholly failed to sustain its burden of proof that the inter vivos gifts were made in contemplation of death, and (2) that the evidence conclusively proves that said gifts were not made fin contemplation of death.’ ”

The single question presented for our determination in this case is: Were the gifts in question made “in contemplation of death” within the meáning of Sections 5331, 5332 and 5332-2, General Code?

The law on this subject seems to have been very well charted by several authoritative decisions of our Supreme Court, of appellate courts and one case by the Probate Court of Cuyahoga County. The difficulty arises in this and similar cases in the application of the law to the facts.

From an analysis of the controlling cases, certain principles emerge as follows:

(1) Whatever may be the interpretation placed on the phrase, “in contemplation of death,” as applicable to gifts inter vivos in other jurisdictions, the meaning in Ohio is fixed by the statutory definition set forth in Section 5331, paragraph 5, General Code, viz:

“ ‘Contemplation of death’ means that expectation of death which actuates the mind of a person on the execution of his will.” See Section 5331, General Code; In re Estate of Robinson, 145 Ohio St., 55, 60 N. E. (2d), 615 (decided April 4, 1945); Tax Commission v. Parker, 117 Ohio St., 215, 158 N. E., 89 (decided June 22, 1927).

(2) The controlling test is in the purpose of the donor. If the purpose is to distribute or partially distribute an estate by the device of gifts inter vivos, the transfers are taxable. If the purpose is in good faith to perform an act of generosity or kindness or to relieve the needs of children and their families, or if it is in appreciation or of reward for services rendered, the transfers are not taxable. See In re Estate of Robinson, supra; Tax Commission v. Parker, supra; Schaefer, Exr., v. Department of Taxation, 75 Ohio App., 533, 62 N. E. (2d), 374 (decided June 4, 1945); In re Estate of Bender, 60 Ohio App., 107, 19 N. E. (2d), 781 (decided July 5, 1938); In re Estate of Perkins, 27 Ohio Law Abs., 525, 12 Ohio Opinions, 455 (decided Sept. 21, 1938).

(3) Liability to taxation must be determined in each case by all the facts and circumstances existing at the time of the transfer and if multiple transfers are made, the facts and circumstances of each transfer should be separately considered. See In re Estate of Robinson, supra.

(4) Transfers of property without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property made within two years of death are deemed presumptively in contemplation of death and the burden is cast upon the transferee to prove to the contrary. See Section 5332, General Code; Tax Commission v. Parker, supra.

(5) Where transfers are made more than two years prior to the death of donor, the burden is cast upon the Department of Taxation to show that such transfers were in fact made in contemplation of death within the meaning of the applicable General Code Sections (Sections 5331, 5332 and 5332-2, General Code). See Tax Commission v. Parker, supra; Schaefer, Exr., v. Department of Taxation, supra; In re Estate of Hamilton, 34 Ohio Law Abs., 187, 21 Ohio Opinions, 86.

In this connection it does not follow, however, that the case should not be considered on the entire record or that the burden of proof cast upon the department must be sustained by and with its own evidence and witnesses. It is sufficient if upon the entire record the Department of Taxation has sustained the burden of proof imposed on it by law.

Coming now to apply the principles of law to the facts of the instant case, the record shows that the gifts were made eleven years prior to the death of the donor. Therefore the burden of proof rests upon the Department of Taxation to show that the transfers were made in contemplation of death.

The evidence here tends to support very definitely the claim of the exceptors that the purpose of the transferor was twofold: (1) An act of generosity and kindness to the four living children and another gift in equal amount to the children of a deceased daughter, the latter gift not being challenged in this action; (2) as a reward for and in appreciation of the material assistance of the donees in assisting in producing the fortune out of which the gifts were made.

The record indicates clearly that this family enterprise was built up by the co-operation in one way or another of all the members of the family. The record with all reasonable inference indicates that the donees had worked hard, had put in long hours at comparatively modest wages or salaries from their earliest years in helping to build up and make a success of the family enterprise. It was quite natural that the mother of the children upon reaching the age of 75 years and having a substantial sum of cash and securities on hand, should wish to show parental appreciation of the efforts of her children who, with her husband, were responsible in a large measure for the accumulation of the wealth which she possessed. Likewise, there is ample evidence in the record indicating a desire on her part to do an act of kindness for them at this particular Christmas season of 1935. It should also be noted that she did not denude herself of her entire fortune. The facts show that she retained approximately a half million dollars and that when she died eleven years later her estate approximated the amount she owned when the gifts were made. The facts also show that she enjoyed the support and consortium of her husband who himself was the possessor of an independent fortune greatly in excess of that possessed by her, all derived from the successful operation of the family business enterprise.

The Department of Taxation has urged two grounds, namely, the age of the decedent at the time the gifts were made and the fact that the gifts were in equal amounts, as showing that the gifts were made in contemplation of death. If age alone were the controlling factor, a nontaxable gift inter vivos could not be made at an advanced age. The Legislature has not attempted to provide any age limits, nor can we do so by judicial interpretation. True, indeed, age must be considered a factor with other facts and circumstances at the time the gift is made. The only other factor here which is seriously urged by the Department of Taxation is that the gifts were in equal amounts.

We think the argument of equality fails when it is considered that another gift of equal amount to the grandchildren of the decedent was upheld by the Probate Court on the ground that it was for educational purposes.

It appears here that equalization of gifts, when considered with other facts and circumstances, is entirely compatible with motives of generosity and kindness as well as motives of appreciation for and reward for services rendered, the record indicating that all the children had merited substantially equal recognition in their services for and on behalf of their parents.

A consideration favoring the contention of the ex-ceptors is that the dispositive plan of decedent’s will executed eight years after the delivery of the gifts inter vivos did not follow the plan of the gifts. Neither did it provide for or constitute an equalization.

Here was a woman sound in mind and body, of advanced years, but still active and normal in all respects. The certificate of the doctor which was admitted by stipulation showed that for many years prior to her death she enjoyed good health and it was only during the last two years of her life that her health began to fail. The records show that she kept up her activities in all directions, church, social, cultural and community. She lived to the ripe old age of 86 years. These facts all point away from the claim that the gifts were made in contemplation of death.

In conclusion the members of this court are unanimously and firmly of the opinion that the Department of Taxation of the State of Ohio failed to carry the burden of proof cast upon it of showing that the gifts in question were made in contemplation of death and hence subject to the succession taxes provided by the applicable sections of the General Code.

For the reasons stated, the judgment of the Probate Court of Cuyahoga County is reversed and the cause-remanded to that court with instructions to determine the Ohio inheritance tax in accordance with the law and this judgment and opinion.

Judgment reversed.

Doyle and Skeel, JJ., concur.

Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: Miller, J. Hornbeck, J.

text:
    Brown, Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 4184
    — Decided October 28, 1948.)

      Mr. R. H. Larrimer and Mr. Robert E. Hall, for appellant.

      Mr. Hugh 8. Jenkins, attorney general, Mr. B. Brooke Alloway and Mr. V. A. Ketcham, Jr., for appellee.
   Miller, J.

This appeal arises ont of a claim filed with the Industrial Commission of Ohio, under the provisions of the Workmen’s Compensation Act. The same was disallowed and upon appeal to the Court of Common Pleas, at the conclusion of all the evidence, the defendant, appellee herein, moved for a directed verdict, which motion was sustained.

The errors assigned are:

1. The Court of Common Pleas erred in sustaining defendant’s motion for a directed verdict at the close of all the evidence.

2. The verdict of the jury is contrary to law and against the manifest weight of the evidence.

The facts material to the issues herein presented disclose that the plaintiff, appellant herein, Ben Brown, was employed by the Schiff Company as a sealer, and that his duties consisted of sealing iip the ends of cartons of shoes after they had been filled with shoes by other fellow employees. Brown worked by himself, although in the room with him were other employees. At about 2:30 p. m. on the date of the injury Brown observed two boys who were packers using old shoe boxes about to fall apart. Since these damaged boxes make considerably more work in the process of the sealing, Brown remarked, “Who done that packing? Those boxes are broken.” Hearing no answer to his inquiry he again asked concerning the packing, whereupon one of the packers by the name of Baker answered and called Brown some vile names. Baker was one of the packers who had used one of the broken boxes. For the following 15 minutes Baker continued Ms profanity and vile name calling towards Brown. Baker taunted Brown and told-Mm he was too yellow to take off his glasses. Brown took off his glasses and advanced towards Baker who made a pass at him with his fist and missed him. Immediately thereafter they clinched, both parties falling to the floor where they remained for about two minutes. When both parties got up, Baker pulled a knife and Brown started circling around to keep away from him. Baker then chased Brown who ran out of the building and then returned some five minutes later. Upon his return to the building Baker ran up to him and hit him over the head with a piece of pipe which resulted in the injuries complained of.

The defendant’s motion for a directed verdict was based upon the premise that the plaintiff had offered no evidence tending to show a causal connection between the injury and the employment. The trial court found that an altercation ensued between Brown and Baker, wMch arose out of the work being done for the employer, but that tMs altercation had ended some five minutes prior to the injury complained of and, therefore, there was no causal connection between the employment and the injury. This is an essential requirement in order to entitle the plaintiff to compensation under the Workmen’s Compensation Law. Industrial Comm. v. Weigandt, 102 Ohio St., 1, 130 N. E., 38. We are in accord with these conclusions of the trial court.

The plaintiff is in agreement with the finding that there wras sufficient evidence to submit to the jury concerning the connection of the employment with the first altercation, but is contending that the court erred in finding as a matter of law that the first altercation had ended some five minutes previous to the injury. He is contending that the quarrel between Brown and Baker from its inception to its termination was one continuous transaction. Brown himself testified that after he left the building it was five minutes before he saw Baker again. The trial court relied strongly on the case of Williams v. Industrial Commission, 63 Ohio App., 66, 25 N. E. (2d), 313. We think the facts are almost parallel to those in the case at bar. In the Williams case Dunbar was putting wax on a ballroom floor when Williams came in and snatched the can out of his hand, stating that he had previously waxed the floor himself. Some heated words ensued. They then walked out into the hall together where the argument was renewed, resulting in a fight and the injury. At page 70, Lloyd, J., said:

“Reverting to the evidence, it clearly shows that the fisticuff match started in jest and ended in earnest, and that it Avas instigated and commenced by Williams, and that the cause of Williams’ injury, which resulted' in his death, was entirely outside of and disconnected from the business in which he was employed.
“Under the authority of Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38; Industrial Commission v. Bankes, 127 Ohio St., 517, 189 N. E., 437, and Highway Oil Co. v. State, ex rel. Bricker, 130 Ohio St., 175, 198 N. E., 276, it is conclusively clear that the-trial court should have directed a-verdict for the appellant industrial commission. Failing to do so, it should have granted the motion of appellant for a. judgment notwithstanding the verdict.”

The trial court also relied on the case of Martin v. Sloss-Sheffield Steel & Iron Co., 216 Ala., 500, 113 So., 578, which we also think is similar to the case at bar. In that case there was a quarrel between two employees which started over the work in which they were engaged. Shortly thereafter during a rest period the argument was renewed, at which time the fatal injury was received. The court held that the injured employee was not entitled to compensation in view of the Workmen’s Compensation Act excluding liability when injury is inflicted by fellow workman for reasons personal to him and not relating to his employment.

Counsel for the plaintiff have cited a number of cases from Ohio and other jurisdictions which are of little value to us as not being based on facts similar to the- case at bar. It is our conclusion that the cessation of hostilities broke the causal connection existing at the time of the original encounter and that there was no causal connection between the employment and the injury at the time it was received. We find no merit to any of the other errors assigned, and the judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., concurs.

Hornbeck, J.

I believe there was a factual issue whether the second encounter was but a continuation of the first.

I concur in the judgment.


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

text:
    Phillip Metropolitan Colored Methodist Episcopal Church, Appellant, v. General Casualty Co. of America, Appellee.

      (No. 7080
    — Decided May 2, 1949.)

      Messrs. Berry, McClain & White, for appellant.

      Messrs. Headley, Taft é Headley, for appellee.
   Matthews, J.

The Municipal Court sustained the general demurrer of the General Casualty Company to the amended hill of particulars and, the plaintiff not desiring to plead further, the court entered judgment of dismissal at plaintiff’s costs in favor of the General Casualty Company. This appeal is from that judgment.

The sole issue raised by the appeal is whether a cause of action against General Casualty Company is alleged in the amended bill of particulars.

It is alleged in the amended bill of particulars that the General Casualty Company is, and was at all times mentioned in the amended bill of particulars, a corporation engaged in the bonding and surety business; and that its codefendant Wahn-Evans & Company is, and was at all such’times, a corporation authorized to and engaged in the business of a real estate broker,under a broker’s license issued by the state of Ohio.

The amended bill of particulars purports to state two causes of action. The first relates to the conduct of Wahn-Evans & Company as a real estate broker in a transaction between the plaintiff and the First English Lutheran Evangelical Church. The second cause of action purports to be against General Casualty Company as surety upon the real estate broker’s bond of Wahn-Evans & Company given in accordance with the requirements of Sections 6373-25 to 6373-51, both inclusive, General Code. However, as the allegations of the first cause of action are expressly incorporated into the second cause of action, it is necessary to consider all the allegations of the amended bill of particulars. The General Casualty Company recognized that it was necessary to consider all the allegations by directing its demurrer to the entire amended bill of particulars. '

From the amended bill of particulars we learn that the plaintiff owned real estate located at 643 Carlisle avenue in the city of Cincinnati and desired to purchase real estate located at 1208 Race street in that city, owned by the First English Lutheran Evangelical Church. On August 13, 1947, the plaintiff employed Wahn-Evans & Company to act as a real estate agent in purchasing the 1208 Race street property and to advise in the financing of the purchase. In due time, Wahn-Evans & Company reported to the plaintiff that the Race street property could be purchased for $50,000, and that Wahn-Evans could sell the plaintiff’s property at 643 Carlisle avenue for $20,000 and could arrange for financing the balance of $30,000 necessary to complete the purchase. Thereupon, the plaintiff made a written offer to purchase the real estate at 1208 Race street for. $50,000 and deposited $1,000 with Wahn-Evans & Company as earnest money to bind the bargain. This offer was accepted by the First English Lutheran Evangelical Church. It also appears that Wahn-Evans & Company was unable to arrange for the financing of the purchase by this plaintiff, but represented to the plaintiff that, if given an additional 90 days Wahn-Evans could .do so, and that if this extension was given and it failed to arrange for the financing within that time “then it would return to plaintiff at the direction of the seller the plaintiff’s binder money in the amount of $1,000.” The plaintiff thereupon entered into a new contract, a copy of which is attached to the amended bill of particulars and incorporated therein. It is alleged also that WahnEvans & Company failed again in its efforts to finance the purchase and, as a result, the seller rescinded the contract and notified Wahn-Evans & Company of such rescission and directed it to return to the plaintiff the $1,000 deposited as earnest money, which Wahn-Evans & Company, after repeatedly promising to do, finally failed and refused to do, although demand had been made therefor by the plaintiff.

The prayer is for judgment against both defendants for $1,000 with interest from the date of the rescission of the contract by the seller and its direction to WahnEvans & Company to return the $1,000 deposit to the plaintiff.

It is contended that the facts alleged do not show a breach of the statutory bond upon which the General Casualty Company is surety and that, therefore, the demurrer to the amended bill of particulars was properly sustained. In passing upon the validity of this contention, we must give full effect to the relevant statutes (Sections 6373-25 to 6373-51, General Code) and treat those statutes as though they were fully set forth in the bond signed by General Casualty Company and in the amended bill of particulars filed by the plaintiff.

However, before we consider the legal effect of the allegations of the amended bill of particulars, it would be well to make some reference to the terms of the contract, a copy of which is attached to and incorporated in the amended bill of particular's. It is in the form of an offer by the plaintiff to pay $50,000 for the 1208 Race street real estate, $1,000 of which was payable in cash accompanying the offer in the following manner :

“I/we hereby deposit one thousand......dollars ($1,000) as above provided with Wahn-Evans & Company as agent for the seller, to apply on the purchase price which is to be retained by the agent until the terms of this contract have been complied with. Said payment to be refunded if offer is not accepted or if title to said real estate is not as above set forth.”

Appended to this offer is an acceptance including an agreement to pay Wahn-Evans & Company the prescribed commission and authorizing it, “when this transaction is completed, to apply the above payment in your hands in connection therewith toward the payment of such commission.” Following that acceptance there is this receipt signed by Wahn-Evans & Company: “We hereby acknowledge receipt of one thousand dollars ($1,000) payment as provided above.”

It will thus be seen that both by the facts alleged in the amended bill of particulars and also by the terms ©f the written contract itself Wahn-Evans & Company held this deposit of $1,000 in trust not only for the seller, but also for the buyer-plaintiff under certain circumstances. It will be observed also that WahnEvans & Company was under contractual obligation to the plaintiff to arrange for the financing of this purchase and was the plaintiff’s broker authorized to sell the Carlisle avenue property for $20,000, and that as between the plaintiff and Wahn-Evans & Company the purchase of the Race street property by the plaintiff was conditional upon the ability of Wahn-Evans & Company to sell the Carlisle avenue property and arrange for the financing of the residue. Under such circumstances, it could not be seriously argued that Wahn-Evans & Company in accepting the deposit of $1,000 was not acting as a real estate broker in a transaction involving the transfer of real estate titles.

Turning now to tbe conditions of the bond, we find the following set forth in Section 6373-35, General Code:

“Such bond shall be conditioned upon the faithful observance of all the provisions of this act and shall also indemnify any person who may be damaged by a failure on the part of the applicant for a real estate broker’s license to conduct his business in accordance with the requirements of this act [Sections 6373-25 to 6373-51, General Code]. Any person claiming to have been damaged by any misrepresentation or fraud on the part of a real estate broker or by reason of the violation of the terms of this act, may maintain an action at law against the broker * * * and may join as parties defendant the sureties on the bonds herein provided for. ’ ’

Section 6373-42, General Code, provides that the real estate broker’s license may be revoked where the broker in acting as “a real estate broker or real estate salesman or in any transaction involving the leasing or sale of an interest in real estate, is guilty of:

“(1) Knowingly making any misrepresentation, or
“(2) Making any false promises with intent to influence, persuade or induce, or
“(5) Failure within a reasonable time to account for or to remit any moneys coming'into his possession which belongs to others, or
“(6) Any other conduct, whether of the same or a different character than hereinabove specified, which constitutes dishonest dealing * *

All told, there are twenty-five prescribed grounds for the revocation of a real estate broker’s license.

Although the word, “may,” is used in Section 6373-42, General Code, in conferring power to revoke the license, it is clear that should the board of real estate examiners, upon hearing, find that the agent had committed one of the acts constituting a ground for revocation, it could not do otherwise than pronounce the judgment of revocation, and such revocation would be on the ground that the agent had failed to observe the provisions of the act (Sections 6373-25 to 6373-51, General Code), and such failure to observe the provisions of the act would likewise be a breach of the bond.

In Larson v. Marsh, 144 Neb., 644, 14 N. W. (2d), 189, 153 A. L. R., 101, it is said:

“The rule seems to be that where a public officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, although the wording of the statute is permissive merely and not peremptory. We are of the opinion therefore that the statute imposes a positive duty upon the Secretary of State to perform the acts required by such statute when conditions exist which make the statute applicable.”

We are of the opinion that the amended bill of particulars shows a violation of the condition of the broker’s bond in two respects: (1) It alleges fraud in representing that the broker could arrange the financing of the residue of the purchase price. We believe that the term, misrepresentation or fraud, as used in Section 6373-35, General Code, must be construed in the light of Section 6373-42, General Code, to include not only misrepresentation as to an existing fact, but also promissory misrepresentation made with intent to influence, persuade or induce action. (2) We are of the opinion that the failure to account for or remit the $1,000 constituted a breach of the bond. In this connection it should be observed that according to the allegations of the amended bill of particulars WahnEvans & Company repeatedly promised to pay the plaintiff. The amended bill of particulars, therefore, excludes the idea of a bona, fide dispute between the broker and the party claiming money due from him.

California has a real estate brokers’ licensing law not unlike the Ohio law. The California law requires a bond conditioned for faithful performance of duty. Liability on such a bond was considered in the case of Clark v. Patterson, 213 Cal., 4, 300 P., 967, 75 A. L. R., 1124, in which the facts bear a strong analogy to the facts in the case at bar. The first paragraph of the headnotes in the A. L. R., report, which we quote, is sufficient to disclose this analogy and the result of the application of the statute to the facts:

‘ ‘ The surety on a bond filed by a real estate broker under a statute requiring applicants for a broker’s license to file a bond ‘conditioned for the faithful performance by such broker of any undertaking as a licensed real estate broker, ’ on which any person injured by the failure of the broker ‘to perform his duties’ shall have a right of action, is liable to one who, on agreeing to purchase property offered by the broker, placed money in the broker’s hands to be applied on the purchase price, where through no fault of the purchaser the sale was never consummated, and the broker failed to return the money.”

But it is urged that when the plaintiff • paid the $1,000 to Wahn-Evans & Company, the title passed to its principal — the owner of the 1208 Race street property. To reach this conclusion, it is necessary to ignore the express provision of the terms of the deposit as alleged in the amended bill of particulars. And to hold that this amended bill of particulars does not state a cause of action against Wahn-Evans & Company and General Casualty Company, it is necessary to ignore the allegations that it was the failure of Wahn-Evans & Company to arrange for the financing, as it had agreed to do, which resulted in the necessary rescission of the contract. However, even though no specific agreement had been entered into by the broker and it had not been the cause of the failure to consummate the sale, it would be under an obligation to return the earnest money. In 8 American Jurisprudence, 1060, Section 130, it is said:

“If earnest money is paid to a broker, and the contract is broken by the principal, the broker, notwithstanding that he has disclosed his principal, is liable to the other party for the return of the earnest money, unless he has in good faith paid it over to his principal.”

The fact that a broker has a claim against his principal is no justification for his refusal to return the earnest money. See Gosslin v. Martin, 56 Ore., 281, 107 P., 957.

Counsel for the casualty company rely strongly on the case of S. D. Stanson, Inc., v. McDonald, 147 Ohio St., 191, 70 N. E. (2d), 359, 169 A. L. R., 760, and we are advised that the trial court considered that that case required the sustaining of the demurrer. This reliance is not placed upon anything in the syllabus, which, of course, is the law of the case. The argument is based on what we regard as a misinterpretation of statements in the opinion of the court. It is true it is said in the opinion that a broker’s surety may be held only for ex delicto acts of the broker, and that the action before the court was not based on any ex delicto act of the broker, but was an action ex contractu, that is, an action for money had and received. However, when the facts of that case and the subsequent statements in the opinion are considered, there is no doubt as to the meaning of the court, and that meaning was. that in the absence of misrepresentation or fraud, or a violation of the terms of the act, the surety was not liable, and that, if there was misrepresentation or fraud, or a violation of the terms of the act, the surety was liable. This is demonstrated by the fact that the court analyzed Section 6373-42, General Code, to determine whether it had been violated by the defendant broker. The action was by an unlicensed broker to recover a share of a commission from another broker and the surety upon, his bond. Not only did the defendant broker not violate the terms of the act by refusing to pay the unlicensed broker or agent, but if he had complied with the request to split his commission and made payment, that would have violated the act. After quoting the pertinent parts of Section 6373-42, General Code, the court said:

“As Section 6373-47, supra, forbids the splitting of a real estate commission with other than a licensed real estate broker and as S. D. Stanson, Inc., was not a licensed broker at the time the cause of action arose, we see no violation of Section 6373-42, General Code. It is argued in substance that, under the finding the deal was a continuing proposition^ McDonald’s con■duct was inequitable. However, conduct cannot be held inequitable which is forbidden by law.”

It is clear that the court reversed the judgment in favor of the unlicensed agent solely because there could be no valid contract under the statute to- split a commission with an unlicensed real estate broker or agent. The opinion clearly shows that the phrase, “ex delicto”, was used as a comprehensive phrase to include misrepresentation and fraud and violations of the statute. Of course any violation of a statute, no matter what the form, is a delict.

That there was no misunderstanding in the Supreme 'Court on this subject is shown by the ground upon which the two dissenting judges placed their dissent. They interpreted the facts to he that at the time the work was done by the plaintiff in the real estate transaction he was licensed, and concluded that the defendant broker violated Section 6373-42, General Code, in refusing to split the fee and that, therefore, his surety was liable. They also were of the opinion that Section 6373-48, General Code, denying a right of action to a real estate broker, without proof that he was licensed, was enacted solely for the protection of the property owner and not for the protections of brokers inter sese* The dissenting judges were also of the opinion that the broker was liable to the unlicensed broker for a share of the commission. If that case turned on any arbitrary technical distinction between causes of action ex contractu and causes ex delicto, the dissenting opinion would have been based on immaterial and irrelevant differences.

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

Judgment reversed. ■

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

Ross, P. J.,

dissenting. This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati dismissing the defendant the General Casualty Company of America from the action, a demurrer filed by that defendant to the amended bill of particulars having been sustained by the court, and the plaintiff having stated it did not desire to plead further.

The essential averments of the amended bill of particulars are that the casualty company “is now and was at all times hereinbefore mentioned the surety on the real estate broker’s bond” of its codefendant, “that said bond was conditioned upon the faithful observance by Wahn-Evans & Company of all provisions of Sections 6373-25 to 6373-51, inclusive, General Code, that said surety has been informed of the continued course of misrepresentation, false promises and dishonest dealings of Wahn-Evans & Company, that when the seller rescinded its contract of sale with the plaintiff said Wahn-Evans & Company breached the conditions of its bond by failing to account for or to remit to the plaintiff its binder money in the amount of $1000, which plaintiff had deposited with it; that this suit is brought pursuant to Sections 6373-35 and 6373-42, General Code of Ohio.”

These allegations are contained in the second cause of action of the amended bill of particulars, which, by reference, incorporates also the allegations of the first cause of action addressed to the defendant broker.

It appears from these latter allegations that the plaintiff gave the broker $1,000 as earnest money and part payment of the purchase price of real estate in the sale of which the defendant broker was agent for the seller. This sale was not consummated owing to the failure of the broker to secure satisfactory financing for the plaintiff, and the seller ordered the broker to return the $1,000 earnest money to the plaintiff which it has failed to do after repeated demands by plaintiff.

The plaintiff alleges “the seller rescinded its contract with the plaintiff in writing and at the same time notified the defendant company of its action and instructed the defendant company to return to the plaintiff its binder money in the amount of $1,000; that plaintiff made immediate demand upon the defendant company to return plaintiff’s binder money; that defendant company promised upon several occasions to return the same; that notwithstanding defendant’s promises as well as repeated demands on the part of the plaintiff said defendant has failed to account for or to remit to plaintiff its binder money and has followed a continued course of misrepresentation, dishonest dealing and false promises. ’ ’

The contract of sale is attached to and made part of the amended bill of particulars and contains the following clause:

“I/we hereby accept the above proposition submitted to me/us by you, as my/our agent, and I/we hereby agree to pay you for your services rendered the rate of commission as established by the Cincinnati Real Estate Board, and I/we hereby authorize you, when this transaction is completed, to apply the above payment in your hands in connection therewith toward the payment of such commission.
“Witness: The First English Evangelical Lutheran Church By Ralph A. Pott, Atty.
“November 4, 1947
“I/we hereby acknowledge receipt of one thousand dollars ($1,000), payment as above provided.
“Wahn-Evans & Co. (name of broker)
“By /s/ Wynne A. Evans”

Now this deposit was obviously a payment to the seller, The First English Evangelical Lutheran Church, through its agent, the defendant broker. It belonged to the seller subject to any contract existing with its agent, the broker. Any claim for its return by reason of failure to consummate the transaction should be made against the seller. It is alleged that the seller has ordered the broker to return the money to the plaintiff, but that is not an allegation of a contract requiring such performance, so that the plaintiff cannot rest its claim on a contract made for its benefit. It is apparent that the broker may have a claim upon this earnest money, which, although in the custody of the broker, belongs to the seller.

The simple facts alleged are that the plaintiff paid the seller a sum of money through the seller’s agent, which the seller has ordered returned. This order to its broker does not relieve the seller of any obligation it may have to pay the plaintiff.

It is true that one of the derelictions of which a broker may be guilty, permitting revocation of his license, is “failure within a reasonable time to account for or to remit any moneys coming into his possession which belong to others.” If the seller has a legal right to order its broker agent to make repayment to plaintiff and the broker refuses so to do, the seller might well have the right herein asserted by plaintiff against both the broker and its surety.

No facts have been alleged showing that the specific $1,000 is in the broker’s possession, and that it belongs to this plaintiff.

The broker has not failed to account to the plaintiff for anything that belongs to it.

The action involved here by virtue of the demurrer is a cause of action against the surety for misconduct of the broker.

The general conclusions of law found in the allegations in the cause of action against the surety are not supported by any factual allegations bringing the surety within the purview of the statutes. It is alleged merely that the surety “has been informed of the continued course of misrepresentations, false promises, and dishonest dealings,” but there is no allegation of the facts sustaining these conclusions connecting this plaintiff with them.

In S. D. Stanson, Inc., v. McDonald, 147 Ohio St., 191, 198, 70 N. E. (2d), 359, 169 A. L. R., 760, it is stated:

“Before recovery may be had against such surety it must be alleged and proved that the party complaining has been damaged by some misrepresentation or fraud on the part of the real estate broker or by reason of the violation of the terms of the act. No such allegation is contained in the amended petition upon which this case was tried. Plainly a broker’s surety may be held only for ex delicto acts of the broker. Here attempt is made to hold the surety as for an ex contractu act of the broker, i. e., for money had and received. Neither of the lower courts found there wa.s any misrepresentation or fraud on the part of McDonald or any violation by him of any term of the act. Neither do we find that there has been any violation of the terms of the act by McDonald to justify holding the bonding company. We are not unmindful of the fact that the State Board of Real Estate Examiners suspended McDonald’s license issued January 1,1942, the year following the matters herein complained of.
“Section 6373-42, General Code, provides that the State Board of Real Estate Examiners may suspend, or revoke or refuse to renew any license at any time 'where the licensee, in performing or attempting to perform any act as a real estate broker or real estate salesman or in any transaction involving the leasing or sale of an interest in real estate, is guilty of: * * *
“ ‘(5) Failure within a reasonable time to account for or to remit any moneys coming into his possession which belong to others, or
“ ‘ (6) Any other conduct, whether of the same or a different character than hereinabove specified, which constitutes dishonest dealing. ’ ’ ’

It would be an unwarranted extension of liability under such a surety contract as is here involved to permit recovery against the surety in every case where a broker in an endeavor to preserve his just claims refused to obey some order by his principal not warranted by the terms of the contract to which the seller, purchaser and broker were parties.

The amended bill of particulars does contain allegations that the broker promised to return the money to the plaintiff, thus acknowledging the validity of its principal’s order. The most that could be made of these allegations would be to justify an action for money had and received in favor of the plaintiff, exactly what in S. D. Stanson, Inc., v. McDonald, supra, was held not to bring the surety within the purview of the act.

It is true the plaintiff malíes broad allegations of fraud and misrepresentation, but these are unsupported by factual allegations.

The Supreme Court, it will be noted, quoted from the section of the Code, permiting an action against a surety, but still the court did not recognize such provisions as being within the purview of the bond as applied to facts similar in effect to those herein involved.

Reference is made to the case of Clark v. Patterson, 213 Cal., 4, 300 P., 967, 75 A. L. R., 1124, to the A. L. R. annotation and to 6 A. L. R., 645.

It may be that certain statutes might incorporate within the penalty of the bond a situation here presented. Evidently, our Supreme Court does not consider this accomplished by the present statutes in Ohio.

I am not unmindful of the cases of Glens Falls Indemnity Co. v. Kirkpatrick, 46 Ohio App., 23, 187 N. E., 643; Glen Falls Indemnity Co. v. Bradfute, 44 Ohio App., 189, 184 N. E., 770; and Sigler v. Massachusetts Bonding & Ins. Co., 71 Ohio App., 425, 50 N. E. (2d), 390, all of which were decided without the advantage of the decision in the Stanson case, decided December 4, 1946, which I consider overruled the conclusions reached by the Courts of Appeals.

It is my conclusion that, giving the amended bill of particulars its fullest and most favorable construction to plaintiff, a cause of action was not stated against the surety and the demurrer was properly sustained and the judgment should be affirmed.


text:
    Monroe, Admr., Appellant, v. Middle Atlantic Transportation Co., Inc., et al., Appellees.
    (No. 21118
    — Decided February 21, 1949.)

      Mr. Coleman Kiss and Mr. Albert H. Kiss, for appellant.

      Messrs. McConnell, Blackmore, Cory <& Burke and Mr. 8. Burns Weston, for appellees.
   Hurd, J.

This is an appeal on questions of law in an action for wrongful death of plaintiff’s decedent, wherein the court at the close of plaintiff’s case granted a motion to direct a verdict and to enter judgment in favor of the defendants, on the ground that there was no common-law marriage between the plaintiff, Roy L. Monroe, and the decedent, Clara Monroe, as a matter of law.

On this appeal we are presented with a single question, namely: Was there sufficient evidence on the issue of a common-law marriage to require that issue to be submitted to the jury under proper instructions from the court?

The trial judge, in directing a verdict and entering judgment for the defendants, predicated his decision on the case of In re Estate of Redman, 135 Ohio St., 554, 21 N. E. (2d), 659 (decided June 14, 1939). In that case the Supreme Court held that the essential elements of a common-law marriage were properly defined in the syllabus in the case of Umbenhower v. Labus, 85 Ohio St., 238, 97 N. E., 832 (decided June 6, 1912), as follows:

“An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law, and a child of such marriage is legitimate and may inherit from the father. ’ ’

Reducing this definition to its component parts, we have four requisites: (1) An agreement of marriage in praesenti made by the parties competent to contract; (2) followed by cohabitation by the parties as husband and wife; (3) holding themselves out as husband and wife in the community and circle in which they move; (4) being regarded as husband and wife in the community and circle in which they move.

Since the’ decision in In re Estate of Redman, we have a later decision by the Supreme Court in the case of Markley v. Hudson, 143 Ohio St., 163, 54 N. E. (2d), 304 (decided April 5, 1944), the second paragraph of the syllabus of which is as follows:

“While such agreement to marry in praesenti must be proved by clear and convincing evidence, it may be established by proof of the acts, declarations and conduct of the parties and their recognized status in the community in which they reside.”

In that case, Hart, J., speaking for the court, stated at page 165:

“In the trial court, the following interrogatory, among others, was submitted to the jury: ‘Did William T. Markley and Eleanor Hudson Markley enter into a mutual contract of present marriage accompanied and follbAved by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they lived?’
“This interrogatory was answered in the affirmative. It follows, of course, that if there was probative evidence in the record to sustain this verdict of the jury, the Court of Appeals erred in reversing the judgment of the Probate Court and in rendering final judgment for the plaintiffs.” See, also, obiter at page 167.

The Supreme Court in the Markley case further held that the weight of the evidence is for the jury to determine, citing Bates v. State, 9 C. C. (N. S.), 273, 19 C. D., 189, affirmed, State v. Bates, 77 Ohio St., 622, 84 N. E., 1132.

We have examined the record in the instant case carefully and have reached the conclusion that the evidence establishes all the elements necessary to support a common-law marriage in Ohio, as set forth in the earlier cases which we have cited and quoted from.

There is no doubt that there was evidence of an agreement in praesenti, as instance the following quotation from the record:

“Q. Tell us what was said, what Clara said and what you said. A. Clara told me she had obtained her divorce. I said, ‘well, all right, Clara, we can get married now that you have your divorce.’ Clara says, ‘well, we can’t get a license in Painesville. It might be embarrassing or it will be embarrassing because we lived together as man and wife for some time.’ I said, ‘Clara, we can actually get married without getting a license.’ I said, ‘I will take you for my wife from now on and everything that I have or ever will own will be yours as much as it is mine. ’
“Q. What did Clara say? A. Clara says, ‘Roy, I will take you for my husband and I promise to be your wife from now on.’ I told Clara I says, ‘All right. We will start out by buying a home. We will start looking for a home so we can move out of here.’ She says, ‘That will be fine, and we will furnish it and move in the home and get out of here. ’ ’ ’

Likewise, there is no doubt that there was sufficient evidence with respect to the other essential elements, such as capacity to contract, cohabitation, publication, and the fourth element of being regarded as husband and wife in the community and circle in which they moved. In fact the evidence is very definite on all of these points.

Therefore, we hold, in accordance with the decision of the Supreme Court in the Markley case, that the question here presented was one for the jury to determine on the weight of the evidence under proper instructions of law by the trial judge-.

Therefore, it is our view that there was error prejudicial to the rights of the plaintiff, in directing a verdict for the defendants and for this reason the judgment of the Common Pleas Court is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

Morgan, P. J., and Skeel, J., concur.

       “In the judgment of this court, the Court of Appeals misinterpreted the pronouncement of this court in the Redman case above cited, quoted from and relied upon by the Court of Appeals. This court still adheres to the doctrine that it is essential to show an agreement between the parties in praesenti to become husband and wife in order to establish a common-law marriage, but this does not mean that such proof must establish an express agreement resulting in contract, or that such result may not be established by circumstances from which an agreement in praesenti may be inferred. It is to be observed that in the Redman case one of the parties specifically disclaimed any intention to marry.”


text:
    The Hoefler & Stoecklein Co., Appellee, v. Martin et al., Appellants.
    (No. 2050
    — Decided May 3, 1949.)

      Messrs. Shaman, Winer & Shulman, for appellee.

      Messrs. Estabrooh, Finn & McKee, for appellee.

      Mr. Drewey H. Wysong, for appellants.
   By the Court.

This cause is submitted on motion of defendant Fidelity Building Association, appellee herein, to dismiss the appeal on questions of law and fact on the ground that an appeal bond was not filed within the time the notice of appeal is required to be filed as provided in Section 12223-6, General Code.

The judgment from which an appeal was taken was filed with the clerk for journalization on February 23, 1949. The notice of appeal was filed on March 11,1949. The last day on which the notice of appeal and bond were required to be filed was March 15, 1949. The bond was filed on March 23, 1949.

It appearing that the bond was not filed within the time notice of appeal was required to be filed, an appeal on questions of law and fact can not be maintained. Under Section 12223-22, General Code, the appeal shall not be dismissed but shall stand as an appeal on questions of law.

The motion to dismiss' the appeal on questions of law and fact will be sustained. The appeal shall stand for hearing as an appeal on questions of law. The defendants, appellants herein, will be required to file their bill of exceptions, assignments of error and briefs in conformity to the provisions of the Supplement to Rule VII.

. Judgment accordingly.

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


author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. McGahan, Appellant.
    (No. 4310
    — Decided October 6, 1949.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. Edmund B. Paxton, for appellee.

      Mr. Jesse 8. Heslip and Mr. Ray E.-Hughes, for appellant.
   Wiseman, J.

This cause is submitted on motion of George McGahan for leave to appeal. This is a criminal case and is controlled by Section 13459-4, General Code.

Sentence and judgment were pronounced on October 30, 1948. The defendant failed to file an appeal within 30 days as a matter of right. Section 13459-4 provides that “after thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof. ’ ’ Obviously this provision was not intended to confer on the court the authority to grant leave to appeal without a showing of good cause. In determining whether leave to appeal shall be granted or refused the court is required to exercise sound discretion. In our opinion leave to appeal should be granted only where, if an appeal were refused, a miscarriage of justice might result. There must be some impelling reason which would require the court to act. No attempt was made to make such showing in the case at bar.

The point is made that the principal counsel for the defendant became ill during the trial and that other counsel assisted him and proceeded with the trial. However, counsel stated to this court that the principal counsel was in court at every session during the trial. It appears also that while principal counsel was ill during the 30-day period after sentence and judgment he, nevertheless, was in and out of his law office taking care of legal work. It appears that the assistant counsel had prepared and filed a bill of exceptions within the 30-day period.

Counsel for defendant claim that some time after sentence and judgment were pronounced, the exact date not being stated, the assistant prosecuting attorney prepared an entry and submitted it to counsel for defendant for approval, and that, because the entry was submitted, counsel for defendant were misled into believing that the time within which to prosecute an appeal was not running. No showing is made that counsel for defendant were not present or aware that sentence and judgment had been pronounced on October 30, 1948.

In our opinion the record in this case and the facts presented do not constitute good cause for granting leave to file an appeal.

The motion is overruled.

Motion overruled.

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


author: Hildebrant, J.

text:
    Green et al., Appellees, v. Green, Admx., et al., Appellants.
    (No. 7052
    — Decided May 31, 1949.)

      Messrs. Clark & Robinson and Mr. John F. Hellebush, for appellees.

      Mr. Walter K. Sibbald, for appellants.
   Hildebrant, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court, setting aside the will of George C. Green, deceased, in conformity to a jury verdict.

The court has carefully read the voluminous record of nearly 500 pages, and has concluded that the verdict here is manifestly against the weight of the evidence. In fact, the close question appearing to the court is whether a verdict sustaining the will should not have been directed.

The attack on the will was made on the basis of lack of testamentary capacity and undue influence.

As to the lack of capacity, the record is most meagre. Plaintiffs introduced the coroner’s report of an autopsy, finding death due to coronary arteriosclerosis and disclosing a slight narrowing of the middle cerebral arteries due to the arteriosclerotic condition.

Plaintiffs called Dr. Striker, who never saw testator during his lifetime, as an expert witness. He answered a hypothetical question, the last paragraph of which is:

“Now assuming all this, would you say that in your opinion, based on your experience, that this man on October 29, 1947, two days before his death, the day on which he signed a paper writing purporting to be his last will and testament, had sufficient mind and memory to comprehend generally and would you say that the mind of this person on that day was so altered that he could be restrained from disposing of this property in accordance with his own independent judgment and wisdom?
* • * * *
“Q. Would you say that the mind of this person on that day, that is, October 29, 1947, was so altered that he could be restrained from disposing of his property in accordance with his own independent wishes and judgment? A. I would say, yes. May I qualify?
“Q. Yes. A. Yes — in view of the history, the medical history and the facts' of the postmortem, chronic hypertrophic gastritis, showing that he has had a long standing chronic alcoholism as manifested by the-gastritis. Secondly, by the very marked fibrosis of myocardium, replacement of normal tissues; third, by the evidence of coronary artery insufficiency as manifested by thickening arteries of the coronary and lastly by changes in the middle cerebral artery of his brain.
* * $ # :*
“Q. Now doctor, assuming this same man that I have just described to you, would you say that in your 'opinion, on October 29, 1947, two days before his -death which was the last day — which was the day he signed this paper writing purporting to be his last will and testament, would you say from the history ;and your own experience that this man had sufficient mind and memory to hold in his mind the names and •identity of those who had natural claims upon his bounty? * * * A. I would say this man could not exercise normal judgment in view of these particular circumstances.
“Q. I put the same question to you and ask you whether or not in your opinion, this same man on that same day had the sufficient mind and memory to be able "to appreciate his relation to the members of his family? * * * A. I would say this man, that, the same •explanation applies to that question. He would not have the capacity to exercise normal cerebral mental •function. ’ ’

No other evidence as to the mental condition at the time of the making of the will in question is in the record, except testimony that some two hours after making his will his wife called Dr. Hess to attend to him while in bed in a drunken condition.

The answers of the expert are not too responsive to the questions put and certainly fall far short of being direct testimony impeaching testator’s capacity to make a will. The answer directed to undue influence is subject to the same defect. At the time the will was 'executed by testator himself, the record shows that the two witnesses, who were ladies rooming in the house, were called- from their second floor rooms by testator himself, and while the second wife was in the room, there is no evidence of any influence being exerted on her part at the time. Both witnesses testify testator was not then drunk, and the witness Miller •stated:

“Q. Did he make any statements to you at the time the will was being written? A. Yes, he wanted Consetta to have everything that she was very, very good to him. I saw that myself. ’ ’

The witness Gallenstein, now a railway mail clerk, a fellow worker with decedent up to the time of his death, seeing him every day, testified testator was the best salesman the company ever had, and he had declared to him on three or four occasions that his first wife and boys had taken his fruit business away from him, robbed his bank box, and if he made a will he did not want them to receive any part of his estate.

One of the plaintiffs saw his father about ten days before his death and testified he was sober, well dressed, apparently in good health, and was making a business call on the same customer as the son at the time.

There is much conflicting testimony in the record, from which different inferences might be drawn, as to whether the second wife generally had an influence over testator, frustrating a desire to return to his former family. Also, the record reveals many inconsistencies in action on his part from his quoted statements concerning his feelings for both his original family and the second wife, and made while both drunk and sober. It, therefore, seems a jury question is presented.

From a careful consideration of the whole record, however, we conclude that the evidence is insufficient to justify a finding of lack of testamentary capacity or undue influence and that the verdict is, therefore, manifestly against the weight of the evidence, and the judgment is reversed.

Judgment reversed.

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