author: Ross, P. J.

text:
    Hicks, Appellant, v. Currie et al., Appellees.
    (No. 6469
    Decided January 15, 1945.)

      Mr. Fred L. Hoffman, for appellant.

      Mr. David Howe, for appellees.
   Ross, P. J.

This is an appeal on questions of law from the Municipal Court of Cincinnati, wherein judgment was rendered for the defendants. The case was tried to the court without a jury. A narrative bill of exceptions is presented. In the petition, plaintiff alleges that the defendants had executed a contract .to purchase certain real estate owned by plaintiff, for the sum of $3,800, and that they had refused to perform such contract, although the plaintiff had performed all things required of him by the contract. He alleges special items of damage caused by the breach of the contract.

The defendants filed a joint answer in which they specifically admit the execution of such contract and that they agreed to purchase such real estate for the sum of $3,800. They further state: “That at the time of signing said agreement and prior thereto they informed the plaintiff’s agent, in charge of selling such property, they could not afford to make very large payments on the purchase price; and that the said agent thereupon promised the defendants that if they would pay five hundred ($500) dollars down, they could pay off the balance of the purchase price at the rate of twenty-four and 75/100 ($24.75) dollars per month.” (Italics added.) They further allege that, relying upon said promise they executed the contract, but that later the agent notified them the payments must be $40 per month; that they could not afford to make such payments. The defendants pray for the return of $100 down payment and for cancellation of the contract. A reply, essentially a general denial, was filed. .

Separate findings of fact and law were made by the court and filed. The findings of fact are little more than a recital of the evidence presented, and contain substantially the same statements contained in the narrative bill of exceptions.

The contract was admitted in evidence. It contains a statement that the defendants agreed to pay the sum of $3,800, “payable in the following manner.” Then follows a blank space. The manner of payment is nowhere stated in the contract. A copy of the contract of plaintiff with his agent was also admitted in evidence. ' Of course, this contract was in no way binding upon the defendants, but its admission was proper, as tending to show authority of the agent, since it showed the agent with whom they dealt, his signature appearing thereon.

One of the defendants testified, as follows:

“* * * that he had a conversation with the agent of the Colonial Realty Company, Mr. Brooks, prior to the signing of said contract [plaintiff’s exhibit 1] by the defendants; that said conversation took place in the absence of the plaintiff and the plaintiff’s wife; that in said conversation the defendants informed the real estate agent, Mr. Brooks, that they could not pay more than $24.75 per month on the balance of the purchase price above the down payment, and that said real estate agent, Mr. Brooks, said that he could get them a loan with a building and loan providing for repayment thereof at the rate of $24.75 per month and they relying on said promise of Mr. Brooks signed said contract to purchase said premises described in plaintiff’s exhibit i * * (Italics added.)

It is stated in the bill of exceptions that the other defendant would testify in the same manner. Objection was made to all of such testimony.

The defendants could have introduced evidence explaining the patent ambiguity in the contract, caused by the unfinished statement as to the manner of payment of the purchase price. 9 Ohio Jurisprudence, 410, Section 185.

The answer of defendants contained allegations, as quoted supra, so explaining such ambiguity or uncertainty, but the evidence of defendants wholly failed to sustain such allegations or offer any explanation of the defect in .the contract. The evidence of the defendants as to the promises of the agent was not in line with snch allegations. Snch promises were the individual assurance of such agent, and there is not the slightest evidence that he had any authority to make such statements, and the testimony of the defendants shows that such subagent was speaking for himself alone.

Such variation in the evidence and allegations of the answer does not constitute a “variance” as is described in Sections 11556 and 11557, General Code, but is a failure of proof, such as is described in Section 11558, General Code. The plaintiff is not bound, by the unauthorized voluntary promises of his agent or subagent i-n assuring the defendants that he would secure a loan for them.

• As the case stood at the close of the evidence, the plaintiff had proved a written contract by which the defendants promised to purchase his property for the sum of $3,800.. The defendants admitted that they had executed such contract. There was definite evidence that through no fault of plaintiff, they had refused to perform. The plaintiff had proved his damage and was entitled to judgment. The question of the amount of damages was one of fact, which this court may not pass upon, even though the evidence is undisputed. In re Estate of Johnson, 142 Ohio St., 49, 49 N. E. (2d), 950. For such error, prejudicial to the plaintiff, the judgment of the Municipal Court of Cincinnati is reversed and the cause remanded to that court for further proceedings in accordance with law.

Judgment reversed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Glassman, Appellant, v. Glassman, Appellee.
    (No. 6391
    Decided April 17, 1944.)

      Mr. Leonard H. Freiberg, for appellant.

      Mr. Oliver G. Bailey, for appellee.
   Ross, P. J.

The plaintiff has appealed to this court on questions of law from a judgment of the Court of Common Pleas of Hamilton county, Ohio, Division of Domestic Relations, dismissing her petition for divorce.

In that court there was filed and journalized a separate finding of facts and conclusions of law which present the facts necessary for our consideration of this case.

Among the conclusions of law appears “for want of jurisdiction this action should be and is hereby dismissed at plaintiff’s costs.”

No other judgment was entered.

Although the action of the court in dismissing the petition was improperly included with the conclusions of law, it did constitute a final judgment of the court in question and will be here so considered.

From the finding of facts (no bill of exceptions is presented) it appears that the plaintiff and defendant were married at Cincinnati, Hamilton county, Ohio, on the 10th day of October, 1941. The defendant at that time was an officer in the Medical Corps of the United States Army and was stationed at Ft. Thomas, a United States army post, situated in Kentucky, just across the Ohio river from Cincinnati. The defendant, at the time of his induction into the United States Army, resided at Charleston, West Virginia, where he had been engaged in the practice of medicine. It does not appear that he thereafter attempted to, or did establish any other domicile. The findings fail to show any designation by the husband of any place or mode of living.

Prior to her marriage, the plaintiff had been a bona fide resident, domiciled in Cincinnati, living with her parents, for a period of four years prior to her marriage. On the day of the marriage of plaintiff and defendant, “the parties set out on a trip by automobile to New Orleans, Louisiana, as the first part of the journey of the defendant to Panama, where he had been ordered by army authority; the defendant continued his journey by ship to Panama and the plaintiff immediately returned to the home of her parents at 809 South Crescent avenue, Cincinnati, Ohio.”

In November, 1941, the plaintiff joined defendant in Panama, and on December 9, 1941, two days after the Japanese attack on Pearl Harbor, left Panama and returned to Cincinnati “where she remained for approximately nineteen months until July, 1943.”

“In that month the defendant returned to continental United States, notified the plaintiff, and she met his train at Louisville, Kentucky, whence they returned immediately to Cincinnati. Later .on in the month of July, the defendant was ordered to Camp Rucker in Alabama and went there; the plaintiff joined him there and remained for about two weeks, when she left him and returned to Cincinnati and filed this action on October 21, 1943.
“The trial court further finds that defendant was duly served with a copy of the petition and by publication according to law and has been guilty of gross ne7 gleet of duty toward the plaintiff and that the plaintiff is entitled to a divorce as prayed for if she has the statutory residential qualifications.” (Italics added.)

In its conclusions of law, the court “finds that the residence of the defendant at the time of filing the .petition was Charleston, West Virginia, and that the residence of the plaintiff as a matter of law, followed that of the defendant, notwithstanding the fact that she had never resided with her husband in his residence.” (Italics added.)

As stated before, it nowhere appears that the defendant attempted to or did acquire any other domicile than Charleston, West Virginia, the place of his residence at the time of his induction into the United States Army.

The plaintiff at no time resided in any legal domicile of the defendant, acquired or designated, and never after her marriage voluntarily acquired any domicile other than that of her parents, in Cincinnati, Hamilton county, which she had possessed for four years prior to her marriage.

The sole question presented for decision by this court is whether the trial court had jurisdiction over the subject of the action. If the plaintiff had not been a resident of the state of Ohio for one year prior to filing her petition, then the court had no power to consider or pass upon the plaintiff’s claim for divorce. Jurisdiction over the person may be waived. Jurisdiction over the- subject of the action cannot be conferred even by consent. Was the plaintiff a resident of Ohio for one year prior to filing her action for divorce?

The residential qualifications of a plaintiff in a divorce action brought in an Ohio court are specified in Section 11980, General Code, which provides in part as follows:

“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.”

Such residential requirements in state statutes have been almost, universally held to be jurisdictional in character. If the plaintiff in a divorce action has not been a resident in the state for the period prescribed by statute, the trial court has no jurisdiction to consider the action and any judgment rendered in such a proceeding is absolutely void in the state of trial and elsewhere. Chandler v. Chandler, 132 Va., 418, 112 S. E., 856; Sang v. Sang, 240 Wis., 288, 3 N. W. (2d), 340; Miller v. Miller, 33 Fla., 453, 15 So. 222; Bradfield v. Bradfield, 154 Mich., 115, 117 N. W., 588, 129 Am. St. Rep., 468; Williams v. North Carolina, 317 U. S., 287, 87 L. Ed., 279, 63 S. Ct., 207, 143 A. L. R., 1273; Winston v. Winston, 271 F., 551; Golden v. Golden, 41 N. M., 356, 68 P. (2d), 928; DuQuesnay v. Henderson, 24 Cal. App. (2d), 11, 74 P. (2d), 294.

The court of a state in which a petition for divorce is filed has the power to determine from the evidence submitted to it whether statutory jurisdictional requirements have been met by the plaintiff. Black v. Black, 110 Ohio St., 392, 144 Ñ. E., 268.

It has been generally determined in courts where the matter has been considered that the word “residence” when used in statutes conferring jurisdiction in divorce actions means domiciliary residence, or, in other words, that a temporary residence, no matter how extended, does not meet the requirements of - such statutes unless accompanied by an intention of the party involved to constitute such residence a domicile. Williams v. North Carolina, supra; Howe v. Howe, 179 Va., 111, 18 S. E. (2d), 294; Ex Parte State, ex rel. Altman, 237 Ala., 642, 188 So., 685: Blair v. Blair, 149 Kan., 3, 85 P. (2d), 1004; St. John v. St. John, 291 Ky., 363, 163 S. W. (2d), 820; Lamb v. Lamb, 57 Nev., 421, 65 P. (2d), 872.

It is a rule of common law, accepted and adopted generally, that the wife upon her marriage is by law invested with the domicile of her husband, Foss v. Foss, 105 Conn., 502, 136 A., 98; Bruce v. Bruce, 176 Ark., 442, 3 S. W. (2d), 6; Wheeler, Commr., v. Burgess, 263 Ky., 693, 93 S. W. (2d), 351; Weisinger v. McGehee, 160 Miss., 424, 134 So., 148. See, also, 28 Corpus Juris Secundum, 24; 17 American Jurisprudence, 616.

It has, however, been held that this rule is subject to a qualification that such obligation on the wife is only effective when the husband has provided and designated a domicile. Ferguson’s Admr. v. Ferguson’s Admr., 255 Ky., 230, 73 S. W. (2d), 31; Gussman v. Rodgers, 190 Minn., 153, 251 N. W., 18.

The statute in Ohio giving the husband the right to fix domicile also indicates that some affirmative action is required on the part of the husband.

Section 7996, General Code, provides:

“The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.”

The domicile of one entering the armed forces of the United States remains the same throughout service in such forces unless a new domicile is voluntarily selected by such person. Dicks v. Dicks, 177 Ga., 379, 170 S. E., 245; Harris v. Harris, 205 Ia., 108, 215 N. W., 661; Winston v. Winston, supra; Alburger v. Alburger, 138 Pa. Super., 339. See, also, 28 Corpus Juris Secundum, 28; 17 American Jurisprudence, 634.

Although a member of the armed forces retains by operation of law the domicile possessed at the time of connection with such armed forces, he may select a domicile even at a post, if such selection be evidenced by bona fide intention and residence. St. John v. St. John, supra.

It has been held generally that a wife upon the aggression of her- husband may select a new domicile, independent and separate from that of her husband. Norris v. Norris, 224 Ala., 678, 141 So., 672; Caheen v. Caheen, 233 Ala., 494, 172 So., 618; Ferguson’s Admr. v. Ferguson’s Admr., supra; George v. George, 190 Ky., 706, 228 S. W., 408, 39 A. L. R., 700; Gussman v. Rodgers, supra; George v. George, 143 La., 1032, 79 So., 832; McCallum v. McCallum, 153 Wash., 1, 279 P., 88; Torlonia v. Torlinia, 108 Conn., 292, 142 A., 843; Cheever v. Wilson, 76 U. S. (9 Wall.), 108, 123, 19 L. Ed., 604. See, also, 27 Corpus Juris Secundum, 650; 17 American Jurisprudence, 617; Restatement of Conflict of Laws, 51, Section 28.

The Ohio statute, Section 11982, General Code, is but an iteration of this rule:

“When a wife files a petition for a divorce, or for alimony, the residence of her husband shall not be so construed as to preclude her from the provisions of this chapter.”

As indicating the ineffectiveness of the domicile of the husband to control that of the wife after separation, even upon the aggression of the husband, it has been held that the wife may not enter the jurisdiction of the husband’s domicile and without complying with residential requirements then give a court jurisdiction over her action for divorce. Malgras v. Malgras, 15 Ohio App., 335. The first paragraph of the syllabus of that case is :

“The courts of this state are without jurisdiction to hear an action for divorce where the plaintiff has always lived in a foreign jurisdiction although her husband’s domicile has been in the state for several years.”

See, also, Dutcher v. Dutcher, 39 Wis., 651; Hewes v. Hewes, 61 Hun., 625, 16 N. Y. Supp., 119; Thomas v. Thomas, 216 App. Div., 546, 215 N. Y. Supp., 405; Schonwald v. Schonwald, 55 N. C. (2 Jones Eq.), 367.

But it is asserted by the appellee that, in spite of the conclusions consequent upon admission of the force of what has heretofore been noted, the plaintiff must have resided in Ohio with domiciliary intention for one year prior to her filing her action for divorce. It is admitted that having so resided, she might then file an action over which the Ohio trial court would have jurisdiction. It is obvious then that the question now presented is whether the mere technical legal domicile of the husband (and it is to be noted that the trial court in its findings merely stated the residence of the defendant prior to his connection with the United States Army) is sufficient to have broken the term of continuous domiciliary residence of the plaintiff for more than four years prior to the filing of her petition.

At the outset two quotations from authorities seem most pertinent.

In Williams v. North Carolina, supra (317 U. S., 287, at page 300 of the opinion), Mr. Justice Douglas says:

“As stated by Mr. Justice Holmes in his dissent in the Haddock case (201 U. S., p. 630), they constitute a-‘pure fiction, and fiction always is a poor ground for changing substantial rights.’ ”

In Rancourt v. Hahn, 20 C. D., 245, at 248, 10 C. C. (N. S.), 313, at 317, the court says:

‘ ‘ In all the cases examined we find none where it has been held that after one has acquired a residence, in a particular state or county, he can cease to be a resident of such state or county, until he has actually left the place of which he had been a resident.”

It is to be remembered that while the plaintiff did leave temporarily at times the place of her domicile, she never at any time voluntarily chose another domicile, nor did her husband do so for her after entering the Army.

It is not claimed or even suggested that the plaintiff at any time after her marriage acquired any domicile except that foisted upon her by obeisance to a pure fiction of the common law.

A careful examination has been made of all cases dealing with the questions here involved. Only in those noted hereinafter has been found direct attention to the peculiar situation presented in the instant case.

These cases and the logic of the matter sustain the conclusion that the technical legal fiction of the common law requiring the domicile of the wife to follow that of the husband cannot be employed to destroy the domiciliary rights of a wife who has never been in any domicile of her husband, who has never by any voluntary act lost a domicile possessed for many years beyond the statutory requirement, in the jurisdiction in which she sues for divorce, whose only absences from her domicile have been attendance upon her husband at the various posts, to which under army orders he has been temporarily assigned, who has never been advised by her husband that he has chosen a “place or mode of living” amounting to the establishment of a domicile, who has suffered aggression by the husband entitling her to a divorce, ■ who has separated from him prior to the institution of an action for divorce, and where the husband’s claim to a domicile is predicated upon mere residence prior to his entering the service of the United States Army.

In the instant case, therefore, she has the necessary residential and domiciliary requirements under the statutes of Ohio to sustain the jurisdiction of the trial court over the instant action. Sustaining these conclusions upon facts very similar is the decision of the Supreme. Court of Illinois filed in 1939. That case is Berlingieri v. Berlingieri, 372 Ill., 60, 22 N. E. (2d), 675. The Supreme Court in that case reversed the judgment of the Appellate Court of Illinois, which, in turn, had set aside a judgment of divorce granted the plaintiff by the Circuit Court of Cook county. The essential facts involved are that the parties were mar-, ried July 31,1937, at, Harrison, New York. The plaintiff wife was, at the time of filing her petition, living in Chicago, Illinois, and had lived in that city all her life. After her marriage in New York the plaintiff and her husband had resided at separate hotels in New York City until August 3, 1937, and on that date she left for California and her husband followed her there by automobile. Substantial grounds for divorce occurred in California from August 7 to August 20, 1937. She then returned to her former residence in Chicago. The husband had a technical legal domicile in Rome, Italy, being styled by the court as “an international itinerant.” The Illinois statute requiring residence prior to filing a petition for divorce is much similar to our own. It reads:

“No person shall be entitled to a divorce in pursuance of the provisions of this act, who has not resided in the state one whole year next before filing his or her complaint or petition, unless the offense or injury complained of was committed within this state, or while one or both of the parties resided in this state.”

It was claimed as in the case at bar that although the plaintiff had had a bona fide residence in the state for many more' years than is required by the statute, this jurisdictional requirement was interrupted by the domiciliary status of her husband, predicated upon the legal fiction of the common law.

The reasoning and conclusions of the Supreme Court of Illinois are so logical and reasonable that in fairness to that court they are repeated here:

“While the proof fails to show that Berlingieri has ever established a permanent domicile in any country, his technical domicile may be said to be in Italy and thus it is argued that, under established rules of law, Mrs. Berlingieri’s domicile would follow that of her husband. We do not believe that the Legislature intended to withhold the right of access to our courts from a life-long resident of this state merely because she happened to marry someone technically, but not actually, domiciled elsewhere. The use of the concept of domicile in revenue cases and like matters is based upon reason and practical necessity. For example, there must be one place having jurisdiction to tax personal property; otherwise, the conflicting claims of various taxing authorities would result in confusion and possible depletion of an estate subject to tax. No such necessity appears in divorce cases. The mere fact that a person may have more than one residence and, therefore, may possibly secure a divorce in more than one jurisdiction under our interpretation of the statute, does not render that interpretation improper. The wife’s established domicile in Illinois could not shift to that of her husband until he had established one elsewhere — and this his own testimony shows he had not done.”

The court also stated that the word “residence” as iised in the jurisdictional statute “was intended to have its ordinary and commonly accepted meaning.”

In the year 1927, the Supreme Court of Washington, in the case of Spielman v. Spielman, 144 Wash., 421, 258 P., 37, reached a similar conclusion on facts quite similar to those involved in the Illinois case. Again, the lower court was reversed. The facts are stated in the opinion of the court:

“Appellant was born and lived all of her life in the city of Spokane in this state. In the spring of 1925, appellant’s mother, being in ill health, went to the' city of Portland, in the state of Oregon, for a change of climate, or for treatment. Appellant accompanied her mother for the purpose of caring for her. While so temporarily sojourning in Oregon, appellant was married to the defendant on May 21, 1925, at Portland.
‘ ‘ The defendant was a traveling salesman, covering a territory described as being ‘west of Denver,’ and had no known home or permanent abiding place. He was born in the state of Maryland, but had left that state some fifteen years before his marriage, only returning to it once thereafter for the purpose of a brief visit with relatives. After the marriage, the couple remained in Portland at an hotel for about ten days, when the husband left to continue his usual business trip, and the wife remained in Portland for a few weeks in attendance upon her mother. In the latter part of July following, appellant, with her mother, returned to the parental home in Spokane. The defendant joined her there some time later, and for six or seven weeks the couple lived in the home of the wife’s parents in Spokane. The husband then went to Seattle, secured a position there, returned and took his wife to Seattle, where they remained for two weeks. At the end of that time he resigned the Seattle position, and the couple went again to Portland. The husband there obtained employment, which he held only four days, and following that he went to California, and the wife returned to her parents’ home in Spokane, where she has ever since remained.”

The Washington statute is similar to that of Illinois and Ohio. Quoted in the opinion, it reads :

“Any person who has been a resident of the state for one year may file his or her complaint for a divorce or decree of nullity of marriage, under oath, in the superior court of the county where he or she may reside, and like proceedings shall be had thereon as in civil cases.”

Again, the language of that court is worthy of repetition here:

“What did the Legislature intend by the language ‘Any person who has been a resident of the state for one year’? The trial court seems to have adopted the view that, when appellant married, she thereby abandoned her previous domicile and place of residence, and, in the eye of the law, her domicile and residence thereafter became that of her husband. In State, ex rel. Baldwin, v. Superior Court; 11 Wash., 111, 39 P. 818, this court recognized that the distinction between domicile and residence is an extremely technical one, but apparently recognized that there might be cases in which such a distinction should be drawn. We are, therefore, called upon to decide whether the Legislature meant, by the language quoted, the technical domicile of the law, which sometimes differs from residence, or gave to the word ‘residencé’ its usual arid commonly accepted meaning. Shumaker and Longsdorf’s Cyclopedic Law Dictionary defines domicile as being ‘ that place where a man has his true, fixed and permanent home and principal establishment, arid to which, whenever he is absent, he has the intention of returning.’ Anderson’s Law Dictionary defines it as ‘the place where a person lives or has his home; that is, where one has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.’
“Upon the theory that a domicile is abandoned only when a new domicile is established, an argument can be advanced to the effect that the husband having been born in Maryland and never having established a domicile elsewhere, the marital domicile became that of the husband, and was therefore in Maryland. But such a construction leads to absurd results in this case and leaves the wife with absolutely no forum whatever in which to seek relief. While for purposes of substantial justice the husband’s domicile might be held to be in Maryland, yet, when it leads to injustice, it cannot be held that either he or the marital community was a resident of Maryland within the meaning of that term as used in our statute.
“We are convinced that the Legislature used the word ‘resident’ in its usually accepted meaning, and, applying that meaning here, the appellant, who never had resided outside of this state, should not have that residence taken from her by any legal fiction until there is shown an intention on her part, or on the part of the marital community, to reside elsewhere. The record discloses that the husband had no residence within the meaning of our statute, and that there never was any intention on the part of either spouse, during the time they lived as such, to reside anywhere outside of this state, and therefore the wife’s residence in this state was riever abandoned, and still continues. This is not a case of sojourning within the state for the purpose of taking advantage of our laws, and calls for very different treatment. ’ ’

The cases of Wood v. Wood, 140 Ark., 361, 215 S. W., 681, and Norris v. Norris, 224 Ala., 678, 141 So., 672, also sustain the conclusions reached in the Illinois and Washington cases.

Only one other case presenting similar facts to those involved in the instant case and those in Illinois and Washington has been found and that is the case of Winston v. Winston, supra. Van Orsdel, Associate Justice, states the opinion of the Court of Appeals of the District of Columbia, handed down March 7, 1921:

“Plaintiff avers in her bill that she and defendant were married in this district on September 1, 1917; that defendant was a naval officer assigned to duty at the navy yard, in Brooklyn, N. Y.; that immediately after their marriage they took up their residence in Brooklyn, and that it was from there that plaintiff, on March 20, 1918, left defendant, refusing longer to live with him. It also appears that defendant was born in North Carolina, and had lived there with his parents until the time of his appointment in the naval academy; that he is officially registered in the navy as a resident of North Carolina; that, for several months prior to his marriage, he had been stationed in Brooklyn; and that at the time of the trial he was stationed in Philadelphia, Pa.
“It is unnecessary to determine whether the marital domicile in this case was in North Carolina or New York, since it is clear that it never was in the District of Columbia. It is not sufficient that, prior to her marriage, plaintiff had resided many years with her parents in the District of Columbia, and that, when she left her husband in Brooklyn, she returned here. Inasmuch as she and defendant went into another juris diction and acquired a domicile, it is necessary for her, upon her return, to reacquire a residence for sufficient period to confer jurisdiction upon the court to decree a divorce, which, in this instance, is three years. Harteau v. Harteau, 14 Pick. (Mass.), 181, 25 Am. Dec., 372. That plaintiff, however, could return here and acquire such domicile without reference to the domicile of her husband is settled. Frary v. Frary, 10 N. H., 61, 32 Am. Dec., 395; Carty v. Carty, 70 W. Va., 146, 73 S. E., 310, 38 L. R. A. (N. S.), 297.” (Italics added.)

In that case, the court specifically refused to place the basis for its decision upon the technical common law fiction of unity of domicile. It will be noted from the words italicized that the court found that the plaintiff and defendant had acquired a domicile outside of the District of Columbia.

Even if this case be considered authority contrary to that of Illinois and Washington, it seems that in those cases the courts squarely considered the effect of the common-law fiction of technical domicile, while in the District of Columbia case, the effect of this fiction was not specifically considered.

The situation here presented apparently is one which has not often arisen. No logical reason can be found for denying to a bona fide resident of this state access to its courts, solely because of the intervention of a technical legal fiction of the common law which comes into violent collision with facts which. prove beyond question full domiciliary residence well beyond the statutory requirements for jurisdiction.

The trial court had jurisdiction of the action for divorce; it committed error prejudicial to the plaintiff in dismissing the same; its judgment is reversed and the case remanded for further proceedings in accordance with law.

Judgment reversed.

Hildebrant and Matthews, JJ., concur.


author: Matthews, J.

text:
    Bryant, Admr., Appellee, v. Schrage, Admr., et al., Appellants.

      (No. 878
    Decided May 4, 1944.)

      Mr. C. I'F. Elliott and Messrs. Shank £ Briecle, for appellee.

      Mr. E. J. Kauts, for appellants.
   Matthews, J.

This is an appeal from -a judgment based on the negligent causing of the death of plaintiffs decedent. The negligent act alleged is that a certain common stairway was maintained, the steps or treads of which had been allowed to become and remain in a defective condition which caused the decedent to fall down the stairs, resulting in injuries from which he died two days thereafter. There is such evidence of defects in the treads that an issue of fact was made as to whether the steps were reasonably safe, and there is circumstantial evidence that the decedent’s fall and death resulted directly from the defects. This latter fact distinguishes this case from such cases as Wartik v. Miller, Admx., 48 Ohio App., 494, 194 N. E., 433, and Hall v. Ferro-Concrete Construction Co., 71 Ohio App., 545, 50 N. E. (2d), 556, in which the court found that the evidence furnished no reasonable basis for an inference that the death probably resulted from the defect. • We find the evidence sufficient to sustain a judgment against the defendant or defendants, who owed • a duty to the decedent to exercise reasonable care to provide and maintain a reasonably safe stairway.

The defendants are George D. Schrage, administrator of the estate of David Lingler, deceased, Mayme K. Utz, Edna Heerman, Bobert D. Meeker, David L. Meeker, Elizabeth Meeker, Jacques Meeker, and Arthur Reiff. The judgment is against all the defendants and all have appealed.

(1) It is clear that by retaining control of the common passageway, David Lingler remained under a duty to maintain the stairway in a reasonably safe condition, and, upon his death, that duty was cast with the title upon his heirs at law who accepted the title and assumed the duty. A more particular statement of the facts is necessary to show the relation of the two other defendants to this stairway.

This stairway was a passageway from the street floor to the basement of a building in the city of Hamilton. On the street floor was a storeroom and on the second floor an apartment. In the basement were a toilet, wash room and other facilities used in common by the tenants of the storeroom and the apartment. The stairway was the means provided for access to such facilities.

Prior to and at the time of his death in October 1939, one David Lingler owned this building. On June 1,1939, David Lingler leased the storeroom on the first floor to the defendant Arthur Reiff for a term of five years from that date and he (Reiff) has occupied the storeroom ever since and has conducted a restaurant therein. There was no reference to the stairway in this lease, but it is conceded that the lessee had -the right to use it in common with the tenant of the apartment on the second floor.

David Lingler died intestate and George D. Schrage, one of the defendants, was appointed administrator of his estate. The defendants Mayme K. Utz, Edna Heerman, Robert D. Meeker, David L. Meeker, Elizabeth Meeker and Jacques Meeker are the heirs of David L. Lingler axxd inherited axxd have ever sixice owned the fee simple title subject to the lease to the defexidaxxt Arthur Reiff.

George D. Schrage was the son-in-law of Mayme K. Utz, but was not the owner of any part of the title to this real estate. Nevertheless, in December 1941, he obtained a policy of insurance indemnifying him against loss which he might be required to pay on account of bodily injury to persons on any part of the premises. In this policy, he is described as administrator of the estate of David Dingier and his interest that of owner.

He collected the rent from Reiff and the tenant of the apartment, and exercised a general supervision over this property, including keeping the property in'repair. What he did with the rent does not appear. It does appear that what he did was with the acquiescence and consent of the owners.

From the evidence it is not clear whether Schrage took charge of the property as owner, as agent, or as administrator, under a mistaken belief as to his powers as such.

It does not appear that he ever did anything.to this stairway or that anyone else did anything to it after the lease of the storeroom to Reiff. At the time of the lease to Reiff and by agreement between Reiff and Dingier, the former placed a substance variously described as linoleum, plywood, and masonite on the treads of the stairs and in consideration of this the rent was reduced for a few months. A loose piece of this substance was found on the afternoon shortly after this accident, on the tread near the defect, and its shape indicated that it had been broken from the point of the defect. It is in evidence that Reiff placed a sign with the word “Men” in the restaurant above the door leading to this stairway.

The rule for determining liability for injuries caused by defective premises is stated in 38 American Jurisprudence, 753, Section 94, in this language:

“A person who makes use of a dangerous, place for his own purposes may be held liable to respond in damages for an injury which results therefrom notwithstanding he cannot control the substance or thing which makes the place dangerous. However, the liability of an owner or occupant of real estate in reference to injuries caused by a dangerous or defective condi tion of the premises depends in general upon his hav ing control of the property. In fact, such liability depends upon control, rather than ownership, of the premises. As a general rule, liability for injuries caused by dangerous instrumentalities terminates with a cessation of control thereover; and the liability of a laud-owner, likewise, is terminated ordinarily when he parts with possession of the premises in question.”

And, at page 754, Section 95, it is said:

‘ ‘ The general rule is that one who assumes to be the owner of real property, and who, as such, assumes to control and manage it, cannot, by showing want of title in himself, escape liability for injuries resulting from its defective condition.” See, also, Gibson v. Johnson, 69 Ohio App., 19, 42 N. E. (2d), 689.
As control of the premises is the test for determining the duty to keep in repair, it is evident that the duty to others is not limited to the owners of the legal title, although such ownership is sufficient to give them control and impose the duty. Any one who assumes control, no matter under what guise, assumes the duty. The fact that others are under a duty which they fail to perform is no defense to one who has assumed control and uses the dangerous premises thereby bringing others within the sphere of danger. Thus, it is said in 2 Restatement of Torts, 976, Section 360, that “if the lessee knows that the common approaches to his apartment or office have been made dangerous for use by the lessor’s failure to perform his duty to maintain them in safe condition, the lessee may thereby become subject to liability even to his gratuitous licensees if he fails to warn them of the danger involved in using the common approaches.”

In 2 Restatement of Agency, 776, Section 354, the rule is stated thus:

“An agent who' undertakes to act for the principal under such conditions that some action is necessary for the protection of the person of others or of their tangible things is subject to liability to such others for physical harm to them or to their things caused by his undertaking and subsequent negligent failure to act, if the need for action is so immediate or emergent that withdrawal from the undertaking is no longer possible without unreasonable risk to them, and the agent should so realize.”

And at page 778, the application of the rule is illustrated, as follows, in comment c:

“The agent causes the damage by undertaking to afford protection and subsequently failing to give it. It is immaterial that he has not intended to give the protection or that he has done no acts in connection therewith. Thus, an agent who has undertaken to guard travelers on a main highway by placing lighted lanterns near obstructions in the road where the risk of collision is great, and where, if collision occurs, the harm likely to ensue is serious, is liable for a collision caused by his failure to do so, if he intended not to act or if he was careless in neglecting to place the lanterns, whether he placed some but not all or did not place any.”

The relation of the legal title to liability for defective condition of premises is discussed, and the cases collected, in the annotation in 96 A. L. R., 1068. The array of eases there discloses the variety of circumstances under which liability has been imposed on defendants who were strangers to the title.

In view of the rule imposing liability, we do not deem it necessary to consider at length whether the plaintiff intended to sue Schrage in a representative capacity or personally. There is no direct allegation that the áction is against him in his representative capacity. The facts imposing personal liability are pleaded. Those facts would determine the nature of the liability and the judgment would be rendered accordingly. If necessary, the allegations of representative capacity would be disregarded as surplusage or as descriptio personae. Heirs of Waldsmith v. Admrs. of Waldsmith, 2 Ohio, 156; Donohue v. Kendall, 50 N. Y. Super. (18 Jones & Spencer), 386; and Bannigan v. Woodbury, 158 Mich., 206, 122 N. W., 531, 133 Am. St. Rep., 371.

We, therefore, hold that there is evidence tending to prove that each of the defendants bore such a relation to this common stairway as to impose a duty to exercise reasonable care to maintain it in a reasonably safe condition, and that there is evidence of a failure to perform that duty.

(2) The court delivered eight forms of verdicts to the jury. Seven of these were in favor of the plaintiff against George Schrage, administrator of the estate of David Lingler, deceased, one against all defendants, five against various combinations of defendants, and one in favor of all of the defendants. No other form in favor of a defendant or defendants was submitted.

After describing the various forms, the court instructed the jury as follows:

“Now immediately upon your retiring to the jury room, and before you commence your deliberations, you will select one of your number as foreman, and when three-fourths or nine of your number have agreed to one of the forms of verdict, those of you so agreeing, provided of course there are nine or more of your number, will sign the form of verdict agreed upon, and report in open court.”

The jury used the form in fayor of the plaintiff against George D. Schrage, administrator of the estate of David Lingler, deceased, inserted the figures $4000 in the blank space therein,-and returned it, signed by all the jurors, to the court. What became of the other forms does not appear.

The plaintiff filed a motion for a new trial as to all defendants except Schrage, administrator, and also for judgment against them notwithstanding the verdict or absence of a verdict as to them.

George D. Schrage, administrator, filed a motion for a new trial and also for judgment notwithstanding the verdict against him.

The court sustained the motion of the plaintiff for judgment notwithstanding the verdict in favor of the defendants, other than George Schrage, and rendered judgment against all of the defendants. The court did not rule on the plaintiff’s motion for a new trial as to all except Schrage. It overruled the motions of the defendants.

In support of his motion for judgment, each movant asserted that the action of the jury showed a finding in his favor. As the asserted inferences are antithetical, they cannot both be right. The question is whether either is. ' '

A similar situation was presented in Dow Drug Co. v. Nieman, 57 Ohio App., 190, 13 N. E. (2d), 130. There were two defendants. Pour forms of verdicts were furnished the jury and the court instructed' the jury as to the circumstances under which each should be used. Only one form was furnished in favor of the defendants and that found in favor of both. As in this case, no form in favor of an individual defendant was furnished. The jury returned a verdict for the plaintiff against one defendant and made no express finding as to the other. We held that the jury’s action must be regarded as a finding in favor of the defendant not mentioned in the verdict. The subject is discussed fully in that case and we shall not repeat the citations here. We shall repeat only the quotation from Durst v. Southern Ry. Co., 161 S. E., 498, 506, 508, 159 S. E., 844:

“We think the construction of a verdict should, and can, depend upon, not only the language used by the jury; but other things occurring in the trial may be, and should be properly regarded in determining what a jury intended to find. In a quite recent case, this court followed the latter suggested course. * * *
“Taking the language in which the verdict was couched in connection with the instructions as to the right of the jury to find against one or both of the defendants, and the instructions as to the forms of the verdict, it is our opinion that the verdict rendered in the first trial clearly indicated the intention of the jury to find against the railway company alone, and to acquit its codefendant, Williams, and to that extent we agree with the view of the'appellants. ”

In 39 Ohio Jurisprudence, 1097, Section 369, it is said:

“However, a verdict against one of two defendants, with no mention-of the other defendant, imports a finding in the latter’s favor, especially where, with the approval of counsel for the various litigants,-forms of verdicts were submitted to the jury, none of which made provision for a verdict against one defendant and in favor of the other, and one of the approved-forms was used.” See, also, Wright v. Safeway Stores, Inc., 7 Wash. (2d), 341, 109 P. (2d), 542,’ 135 A. L. R., 1367; and Louisville & N. Rd. Co. v. Maddox, 236 Ala., 594, 183 So., 849, 118 A. L. R., 1318.

Our conclusion is that this appeal must be disposed of as though express formal verdicts had been returned in favor of all the defendants except George D. Schrage against whom the verdict was returned in favor of the plaintiff.

(3) It is said that these findings are inconsistent and necessitate a new trial. Of course, if the verdicts are so inconsistent as to show misconduct or mistake of law on the part of the jury, that result would follow. Does that appear on this record?

It is undoubtedly true that negligence is the basis of the liability, and it is also true that there is no conflict in the evidence as to the negligent act — maintaining the stairway in an unsafe condition. But that unsafe condition can be attributed to the negligence of only those defendants whose duty it was to keep the stairway in a reasonably safe state of repair. It was necessary to bring each of the defendants into some relation to the possession of, or dominion over, this property in order to impose this duty. Except as to the coheirs there was no identity of relationship to the property. They had inherited the title from a common ancestor in October 1939. The accident which resulted in the death of plaintiff’s intestate occurred on August 24, 1942. The evidence is very meager as to what action, if any, with reference to this property, was taken by any of the coheirs. They had title cast upon them by law, but whether they accepted it or any benefit from it, or exercised any dominion over it does not appear.

The evidence that imposed a duty upon Schrage was entirely different; He had no title and it was his active exercise of dominion that was relied on to impose a duty.

The evidence that carried the issue to the jury against Reiff was also distinct and different. He was the tenant and it was his use of this stairway and his invitation to his customers, knowing its condition, that was relied on to impose a duty.

It seems to us that the jury could very well have concluded that the evidence failed to show a duty on the part of any of the defendants except Schrage, and if it did, then a verdict against him and in favor of the other defendants would be entirely consistent.

We can see no reason for giving greater effect to the express verdict in favor of the plaintiff against Schrage than to the affirmative finding in favor of the other-defendants, which their omission from the verdict imports. The finding against Schrage is no basis for entering judgment against the others notwithstanding the finding in their favor.

(4) Counsel for defendants other than Reiff, requested two special charges before argument, both of which were refused. Whether the requested charges were in writing and were presented separately or as a series, does not appear. Nor does any' exception appear to have been taken at the time of the refusal. Assuming, however, that the questions were properly presented, we are of the opinion that the charge or charges were properly-refused. The first branch or charge is defective, in that it does not limit contributory negligence to such as directly contributed to the injury. The second branch or charge is defective in that it assumes to state the issues, but does not include-the essential issues, and for that reason it would have been misleading.

We find no other error prejudicial to the appellants.

For these reasons, the judgment in favor' of the plaintiff, against George D. Schrage, is affirmed and the judgment against the other defendants is reversed, and, as the court did not pass on the plaintiff’s motion for a new trial as to them, the cause is remanded for action thereon and for further proceedings according to law.

Judgment accordingly.

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


author: Geiger, J.

text:
    In re Estate of Seidensticker: Dept. of Taxation, Appellant, v. Seidensticker et al., Appellees.
    (No. 3732
    Decided June 22, 1944.)

      Mr. Thomas J. Herbert, attorney general, and Mr. Aubrey A. Wendt, for appellant.

      Mr. Allen 1. Pretzman, for appellees.
   Geiger, J.

This matter is before this court on an appeal on questions of law from a judgment of the Probate Court of Franklin county, involving tbe question whether certain transfers of chattel property and real estate made by John W. Seidenstieker were subject to inheritance tax.

The statutes applicable to the question are Section 5331 et seq., G-eneral Code.

Section 5331 is largely a definition statute. That section and certain paragraphs thereof will be hereinafter referred to.

Section 5332 provides that a tax is levied upon the succession to any property passing, in trust or otherwise, to or for the use of a person, etc., in certain cases therein enumerated.

The third paragraph of such section, relating to properties the succession to which is subject to inheritance tax, provides that such succession shall be subject to such tax “when the succession is to property * * * by deed, * * gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property:

“(a) In contemplation of the death of the grantor, vendor, assignor, or donor, or
“ (b) Intended to take effect in possession or enjoyment at or after such death.”

Section 5332-2 provides that “any transfer * * * if shown to have been made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property, if so made within two years prior to the death of the transferor, shall, unless' shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title. * * *”

Paragraph 5 of Section 5331 provides:

“ ‘Contemplation of death’ means that expectation of death which actuates the mind of a person on the execution of his will.”

The Probate Court of Franklin county in determining the inheritance tax, by entry of December 16, 1943, found that the g’ross value of the estate was $284,728.28. Due to the fact that there was a mistake in the estimated value of certain property the court, on December 28, 1943, made a second entry to the effect that the gross value of the estate was $279,728. Each of these orders provides for the amount of tax to be paid by the persons severally interested in such estate. In the entry of December 16, 1943, the total of such tax was found to be $1,255.04, and in the entry of December 28, 1943, the total was found to be $1,094.77, about $160 less than in the first entry.

In November 1943, an application and itemized statement of the assets and liabilities, necessary for the determination of the inheritance tax, were filed in the Probate Court of Franklin county in connection with the estate of the decedent.

On November 16, 1943, an order to appraise was issued to the auditor of Franklin county and on December 16, the appraisal was filed and an order was entered by the court determining the value of the property and the amount of taxes to which the several successions were liable as set out in the entry of December 16, 1943. On December 28, the court made an entry to the effect that the determination of December 16 be set aside and the court redetermine the value of the estate as provided for in Section 5345, G-eneral Code. As above stated, the second determination and entry were made to correct the error that was apparent in the first statement as to the appraised value of the property.

On January 4, 1944, exceptions to the determination of the tax as made on December 28 were filed by the executors. At the inception of this hearing objection was made by the Department of Taxation to the jurisdiction of the court, which objection was overruled and the exceptions were sustained on- March 15, 1944. A motion for new trial was overruled, and appeal taken.

The record shows, and the same is not disputed, that the decedent made certain gifts to his wife, Elizabeth, on the following dates and of the following values as ascertained by appraisal:

December 14, 1931, 100 shares Market Exchange Bank Co. stock ................$ 1,500

May 6, 1932, residence at 201 S. Dawson Ave., Bexley ......................... 13,560

Feb. 4, 1933,108 shs. Lamb Glass Co....... 51,840

June 30, 1936, 90 shs. Banner Die, Tool & Stamping Co.......................... 25,200

Feb. 1942, five U. S. treasury notes in amount of $500 each ..............;. 2,500

$ 94,600

The Probate Court held in the last entry that none of the above enumerated property was subject to inheritance tax, and that ruling of the court is the basis for the appeal.

After the making of the gifts above enumerated, the decedent left, at the time of his death, a net estate amounting to $144,390.45 which was subject to inheritance tax.

At the outset we are met with objections to the jurisdiction of the court to make the final order, which may be understood by a consideration of the assignment of errors filed by the appellant, the Department of Taxation. Those errors assigned relating to the jurisdiction are first enumerated:

(1) The Probate Court erred in holding that it had power on motion, to set aside its order-and determination of inheritance taxes, of December 16, 1943, and redetermine the tax as shown by the entry of December 28, 1943.

. (2) The Probate Court erred in considering exceptions filed to its erroneous entry of December 28, 1943.

The other errors assigned refer to the finding of the court to the effect that the property was not subject to inheritance tax. They are as follows:

(3) The Probate Court erred in holding that the gifts and each of the gifts made by the decedent to his wife on December 14, 1931, May 6, 1932, February 4, 1933, June 30, 1936, and February 1942, were not made in contemplation of death within the meaning of Section 5331 et seq., G-eneral Code.

(4) The court erred in holding that the gift of the homestead made by the decedent to his wife on May 6, 1932, was not a gift made in contemplation of death or that it was not a gift intended to take effect in possession or enjoyment at or after death, or both, within the meaning of Paragraph 3 of Section 5332, G-eneral Code.

(5) , (6) and (7) The decision of the court was contrary to law and against the evidence and contrary to the same.

It appears from the evidence and stipulations that the decedent died on July 29, 1943, leaving a large estate. The Probate Court in determining the inheritance tax, included by the entry of December 16, 1943, the gifts of $94,600 in addition to the net estate of $144,390.45. The conveyances enumerated made during the lifetime of the decedent were included on the ground that they were made in contemplation of death. The executors filed exceptions at the hearing of which the evidence on behalf of the department and of the executors was heard and considered by the court. Thereupon the court handed down its last decision finding that none of the transfers during the lifetime of the decedent was made in contemplation of death or was designed to take effect at or after the death of the decedent.

All of the transfers, with the exception of the last one made in February 1942, were accomplished many years prior to the decedent’s death.

At the time of the decedent’s death he was sixty-three years of age. The first of the gifts enumerated in the assignment of errors was made twelve years pri- or to' his death; the second, eleven years; the third, ten years; the fourth, seven years; and the last, as above stated, a year and a half.

The facts disclosed by the evidence in this case were that the decedent had long been engaged in the banking business in the city of Columbus and had amassed a considerable estate. He was engaged in a number of transactions not directly connected with the banking business. His health was vigorous, he being devoted to athletic sports, but as he grew older, he confined his exercise to horseback riding and boating. Five or six years prior to his death he ]Durchased a farm and made extensive improvements thereon. Two years prior to his death he suffered a paralytic stroke from which he made a gradual recovery and resumed his work at the bank. For several years prior to his death he was interested in remodeling the banking room, and in the advancement of the salaries of the employees. His son being a contractor, he constantly importuned him to supply material for additions to his farm, constantly showing a deep interest in the conduct not only of his banking business, but in those incidental matters to which he had given some of his time.

A very important incident occurred about twelve years prior to death which must be considered in relation to determining whether his gifts to his wife were in contemplation of death or for other purposes.

He was an individual trustee of the Knights of Columbus Home Association to which The Penn Mutual Life Insurance Company loaned $300,000 on its building. The note and mortgage had been in default and, according to the testimony of a cotrustee, the. Penn Mutual as far back as 1931, or at least more than a year prior to the commencement of the suit, had been threatening a suit on the note against not only the Knights of Columbus Association, but all the individual trustees of whom the decedent was one. This threat of a suit or the suit itself continued from 1931 until 1939. A judgment was asked by Penn Mutual for $294,000 with interest at 8 per cent. Only four of the trustees were responsible financially, among- them the decedent- The decedent was much worried over the possibility of a deficiency judgment against him and discussed the situation with intimate friends, his lawyers and his cotrustees.

In 1936, he executed a will which was later probated and by the general provisions of which his entire estate was given to his two sons in trust with unrestricted authority to invest and pay a certain amount to his wife out of the income and, if necessary, to increase the payment to $3,000 per year during her lifetime. The trust made provisions for his children. ■ This is sufficient to present the question of whether the gift to his wife was in contemplation of death, and we will comment on it further.

It is necessary for us at the threshold to consider errors assigned, Nos. 1 and 2. The appellant claims in its brief that the Probate Court had no power to vacate its determination of the inheritance tax of December 16, 1943, and enter a subsequent determination on December 28, 1943. Appellees a'ssert that the appellant not having raised in that court the question of the jurisdiction of the Probate Court to modify its former order of December 16, which held that the property was subject to taxation, cannot now present this matter before this court as a prejudicial error. We prefer not to pass upon this question at present.

The Probate Court is given statutory power to determine inheritance taxes. The claim is made by the appellant that such power in that court is merely administrative and that when the court has determined the amount of the taxes, it has exhausted its power and has no power to reconsider its finding upon exceptions of those interested in the estate. The claim is to the effect that under Section 5339, General Code, certain powers are given to the Probate Court to reconsider its finding to cover matters not theretofore considered by the court, and that the question which the Probate Court determined upon the exceptions was not such as were enumerated in Section 5339, and that, therefore, the court overstepped its power in modifying its judgment of December 16, or in assuming further jurisdiction.

The appellant asserts that under the provisions of Section 5345-4, General Code, the court has a right to determine the inheritance tax and has jurisdiction in certain administrative procedure, but that under Section 5345, General Code, the court is required to forthwith find the market value of the estate, the amount of taxes, .and the fiduciaries liable therefor. It is asserted that prior to the filing of exceptions, the acts of the county auditor and the Probate Court are distinctively administrative and the auditor and court, having performed such acts, have exhausted their power unless provisions may be found for the modification or correction' other than by exception.

It is asserted that, the Probate Court having certain express powers, it must be assumed that such court in its administrative capacity has such powers only and such incidental powers as are necessary to permit it to carry out its express powers; that the entry of December 16, 1943, could be corrected only under express statutory authority which is claimed to be lacking; that, therefore, the entry of December 28, 1943, and the exceptions thereto, must be regarded as surplusage and unauthorized; and that the entry of December 16, which holds that the gifts are subject to taxation, is still in force.

The appellees assert that under Section 10501-17, General Code, the Probate Court has the same power as the Common Pleas Court, to vacate or modify its orders or judgments and for that purpose three terms of the Probate Court of four months each are provided. It is asserted by appellees that according to the plain provisions of the above statute the order of the Probate Court, vacating the order of December 16, being within the September term, brings the case squarely within the rule that a court has entire control over its own orders during term.

As we look at it, the determination of inheritance tax is initially confided in the Probate Court and any procedure taken before that court affecting such tax, calls not alone for administrative action of the court, but judicial action as well. The court has the same power in reference to the orders made in connection with inheritance tax that it has in reference to any other matter rightfully lodged in that court. It seems to us that it would be unjust to say that the Probate Court, in pursuance of administrative authority, could determine a tax, often of great burden upon a decedent’s estate, and that such determination could not be reviewed in the ordinary course so as to permit the executors and legatees to show that the court erred in imposing upon them burdensome taxes. We are unable to follow the argument of counsel for appellant on this matter, and overrule assigned errors Nos. 1 and 2.

While we have examined many cases, we find the most controlling in the case at bar is Tax Commission v. Parker, 117 Ohio St., 215, 158 N. E., 89. It is there held that the provision of Section 5332-2, General Code, that transfers made within two years prior to- the death of the testator shall be determined to have been made in contemplation of death, casts upon the transferee the burden of showing that a transfer of property made within two years of the death of the transferor, was not made in contemplation of death; and that ‘ ‘ the controlling fact in determining whether a transferor made the transfer of property in contemplation of death is whether the purpose of the transferor was to distribute or partially distribute his estate, or was simply to do an act of generosity or kindness.”

Judge Barnes of this court in In re Estate of Brenholts, 66 Ohio App., 539, 35 N. E. (2d), 766, rendered an opinion touching a trust fund created five years before the settlor’s death and not in contemplation of death, and held that it was not a part of his estate for the purpose of succession taxes; that there was no presumption that the trust was made in contemplation of death when more than two years had elapsed between its creation and the settlor’s death; and that in such case the burden was upon the taxing authorities to establish by a preponderance of the evidence that the transfer of property was made in contemplation of death.

Judge Barnes said, in substance, on page 543 of the opinion in that case, that the property transferred was a gift; that the evidence supported the conclusion that the donor so considered it; and that, had the donor died within two years following the execution of the trust instruments, a presumption would have arisen that such gift was made in contemplation of death, and the burden would have rested upon the donees to establish by a preponderance of the evidence that the gift was not so made, citing Tax Commission v. Parker, supra.

Judge Barnes then stated:

“It is inferable from the language of the syllabus and opinion in the above-cited case that where two years or more have elapsed the burden is then upon the taxing authorities to establish by a preponderance of the evidence that the transfer of property was made in contemplation of death.

“This court directly so held in the case of In re Frantz, 62 Ohio App., 271, 23 N. E. (2d), 849.”

The judge on the same proposition referred to In re Estate of Bender, 60 Ohio App., 107, 19 N. E. (2d), 781.

We adhere to our former position and now hold that as to all transactions taking place more than two years prior to the death of the decedent the burden is upon the taxing authorities to show that the same were made in contemplation of death, and that there is no presumption that places such transfer within the inhibited provisions of the statute. The General Assembly of Ohio, in the final paragraph of Section 5331, General Code, declared: “ ‘Contemplation of death’ means that expectation of death which actuates the mind of a person on the execution of his will.” We are not of the opinion that this legislative declaration affords any great help to those who must determine whether a gift was made in contemplation of death. This matter is discussed somewhat at length in Tax Commission, v. Parker, supra, where the court concluded as above quoted.

One who has had experience in the trial of will cases, as well as in determining whether an act was done in contemplation of death, can see no guiding light in the legislative definition of “contemplation of death.” We might illustrate briefly what difficulty such a provision might lead to. Let us assume that two young persons were recently married and that the man desires to protect his wife and makes a will in her favor and that at a later date he transfers property to her as a gift pure and simple. What actuated his mind upon the execution of his will has no remote connection with what may have actuated his mind when he made a transfer of property to his wife. It is frequently difficult to ascertain what the intent of a testator was in making a certain provision of a will, and the Legislature apparently has required simply that those difficulties incident to a will shall not be transferred into an inheritance tax case where there is no possible connection between the two except a legislative notion that it would make the action of the donor more understandable where it is' considered what that same donor did or might have done in making a will. Instead of giving any illumination to the question the provision’ is simply one adding additional difficulties. This, we think, is recognized by Judge Barnes in the case hereinbefore cited.

Having cleared away the preliminary matters, we consider the transfer of this property by the decedent to his wife some ten or twelve years before his death while he was in good health and enjoying the prospect of a number of years of happy and prosperous living. At that time he was confronted with the possibility of being held on a default judgment for a very large amount by virtue of a large loan made by Penn Mutual to the Knights of Colnmbns, of which organization he was a trustee. As he expressed it to his friends, he did not propose that Penn Mutual should destroy his savings and he, thereupon, at various .times, gave certain liquid assets to his wife, as gifts, with no reservations that they were in contemplation of death or were to be held by her for his own benefit during his lifetime.

A convincing circumstance in reference to his transactions was that while- in good health, ten or twelve years before he died, he made these transfers to his wife with the express statement to his friends that he intended to protect his estate. Eight or ten years later he had a paralytic stroke and could then contemplate a possible near approach of death. For two years he was in this condition, but recovered slightly before he finally died. During this period with death approaching, he made no further transfers to his wife, but retained his propery in his own name knowing that if he died possessed of the same his wife would be compelled to pay the inheritance tax. If there was any time when he might have transferred property in contemplation of death, it certainly was after he had had a stroke two years before his death.. No person can justly take the position that when the husband was confronted with the deficiency judgment while in robust health, he transferred his property to his wife in contemplation of death for the purpose of avoiding an inheritance tax, and did nothing after he was really within the shadow of death to accomplish this purpose. It may be that the testator was not justified in endeavoring to cover up his property by transfer of the same to his wife. However he was not doing it in contemplation of death, but in contemplation of continued life to be enjoyed by himself and his wife.

One .of tlie properties conveyed to the wife was a very desirable homestead. The wife took the title to it and he proceeded to live with her in the house without paying her anything more than the ordinary contributions for household expenses. The argument is advanced that as to this real estate the husband was providing for his own welfare during his lifetime and that the wife took the property as a trustee for the husband. There is nothing to sustain any such argument. The wife took the property because the husband wanted her to take it, and they then lived there with their children, as a family. He never requested that she re-transfer it to him or do anything to secure to him any income from that property during his lifetime. It is quite apparent that the husband and wife lived in harmony and that the husband was devoted to his wife and he had a perfect right to rely on her not turning him out of a residential property which he generously gave to her to protect herself and family against the deficiency judgment which he feared.

There was one transfer to the wife made within the two-year period prior to his death and such transfer clearly comes within the provision of Section 5332-2, General Code, which provides that such transfer shall be considered as being in contemplation of death, “unless. shown to the contrary. ’ ’ What were the facts in relation to this transfer of $2,500 of government bonds? Like a good citizen the husband had responded to the call of his government to buy government bonds, and like a wise man he used the investment in government bonds to protect himself against inevitable taxes. In other words, he invested required tax money in an income-producing asset which not only protected him, but gave to his government the money it was asking for. Having invested $5,000 he gave half of it to his wife to be held for the same purpose for which he was holding his half, to wit, to take care of the expense of taxes on the real estate and other property which he had given to her. In these days a gift might turn out to be a burden rather than a favor if the taxes on the property of such gift mount to a point where the do-nee would be better off without the property than with it. Like a kind husband, well disposed to his wife, he said to her, “You will have to pay some taxes and we will share this $5,000 equally as our contribution to the government expenses and in mutual protection for ourselves, our property-and our children.”

In addition to the cases already cited, we have studied the following:

Sherman v. Tax Commission, 125 Ohio St., 367, 181 N. E., 539; In re Estate of Donnell, 28 N. P. (N. S.), 211; In re Estate of Hamilton, 34 Ohio Law Abs., 187, 5 Ohio Supp., 289; Tax Commission v. Estate of Seltzer, 41 Ohio App., 250, 180 N. E., 65; In re Estate of Perkins, 27 Ohio Law Abs., 525, 2 Ohio Supp., 33; In re Estate of Frantz, 62 Ohio App., 271, 23 N. E. (2d), 849.

The court below rendered a very logical opinion, with which we are in entire harmony.

The judgment of the court below is affirmed. All errors assigned are overruled.

Judgment affirmed.

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


text:
    Farm Bureau Mutual Automobile Ins. Co., Appellant, v. The Alms & Doepke Co., Appellee.
    (No. 6422
    Decided October 16, 1944.)

      Messrs. Pogue, Eelmhols, Culbertson é French, for appellant.

      Mr. Clarence M. Smith, for appellee.
   Matthews, J.

The plaintiff issued an insurance policy to one Ayers, insuring Mm against theft of and damage to his automobile. This automobile was parked on the defendant’s parking lot from which it was stolen and damaged by the thief before it was recovered. The plaintiff paid the insured the amount of the damage and this action was brought as assignee or subrogee to recover from the defendant the amount so paid. A jury was waived. The court, as trier of the facts, made a finding in favor of the defendant. The plaintiff’s motion for a new trial was overruled and judgment rendered on the finding in favor of the defendant. It is from that judgment that this appeal was taken.

The defendant' operated a large department store and, in that connection and primarily to serve patrons of the store, operated a parking lot just north of the store. This lot had a frontage of almost 200 feet on Sycamore street, on the east, and was about 160 feet deep on the north and 101 feet deep on the south. Around these three sides was a concrete wall or curb high enough to prevent automobiles from passing, but which an adult could step over. There were two openings in this curb, one 36 feet wide on Sycamore street, for both entrance and exit, and one on the south side for exit only. There were buildings on the west side which prevented ingress and egress.

The automobiles were so parked that any automobile could be reached and operated to either exit without shifting others.

The lot was in charge of a manager and an assistant. The customer, upon entering, was charged 15 cents and given a ticket which could be used at the store as the equivalent of that much money, and, the ticket entitled him to park for two hours. If he allowed his automobile to remain longer than that he was charged an additional 15 cents.

Customers could either park their own automobiles, lock them and keep possession of the keys, or they could have an attendant park the automobile and either leave the keys in the automobile or take them away. The defendant preferred to have the keys left, but there was no rule and no uniform practice. The defendant did make a practice of giving a parking ticket which it took up as the automobile was driven out, and at the same time collected for any overtime.

The insured’s mother, who parked this automobile on the day in question, had been a frequent customer and knew the physical conditions and in a general way how the lot was run. On that day, about 1:00 p. m., she entered the lot, paid 15 cents, was given a ticket, and an attendant took the automobile and parked it next to the south line and facing Sycamore street. When she returned to get the automobile about four hours later, it was discovered that it was not on the lot. While she was absent, the attendants had noticed an automobile leaving the lot and they had tried to stop it to get the ticket and pay for any overtime, but the driver disregarded them and drove away. They did not know whose automobile it was or whether the driver was the person who had parked it, but presumed it was the owner who had taken it away. When it was discovered that the insured’s automobile was not on the lot and that Mrs. Ayers had not taken it away, the conclusion was reached that it was this automobile whose driver had failed to surrender his ticket. This conclusion was confirmed by the discovery of the wrecked automobile a short time thereafter.

In his decision, which was accepted by the parties as a finding of facts and journalized as such, the judge stated the issues, analyzed the evidence, quoted from certain Ohio cases the applicable law as he conceived it to be, and concluded that:

“In the case now being considered by the court, when the plaintiff proved that its insured delivered his automobile to the defendant and paid a fee for the storage of his automobile, the defendant became a bailee for hire, and when the defendant upon demand was unable to deliver the automobile to the insured’s agent, a prima facie case was established in favor of the owner of the car. The burden was then cast upon the defendant to go forward with its evidence and show that its failure to deliver the car was due to other causes consistent with due care on its part.
“The court believes that the defendant has overcome this presumption by showing that the theft of the assured’s car was not inconsistent with due care on its (the defendant’s) part.
“Having presented evidence to counterbalance the prima facie case in favor of the assured, the burden is still upon the assured, and the plaintiff in this case, to prove, as alleged in the plaintiff’s petition, ‘that on December 19, 1942, after the car had been delivered to the defendant for safe keeping, the defendant negligently and carelessly lost the custody of the car of the assured.
“The court believes, and hereby finds, that the plaintiff has not sustained its burden of proving that the loss of and damage to its assured’s automobile resulted from negligence on the part of the bailee defendant. ’ ’

It is now claimed that the court placed too great a burden upon the plaintiff in this statement and that the judgment should be reversed for that reason. Before considering this contention, it should be noted that the court properly stated that the issue was whether the defendant had exercised due care, and that the evidence was such' that reasonable minds' could reach different conclusions on that subject.

It is conceded by the plaintiff that failure of defendant to exercise reasonable care was an essential element of its case, but it is contended that when it proved the parking of the automobile and the failure of the defendant to redeliver upon demand, a prima facie case was established, and thereupon the burden of overcoming that prima facie case was cast upon the defendant. In other words, it contends that the burden of proof shifted and from that point on, the defendant must take the risk of nonpersuasion.

While there is uncertainty and perhaps conflict in other jurisdictions, the rule in Ohio is clear that the burden of persuasion never shifts during the trial of a case. As fixed by the pleadings and the law, the burden of proof remains constant throughout. 17 Ohio Jurisprudence, 140, Section 112. The establishment of a prima facie case by evidence, by an inference or presumption, does not cause the burden of proving to shift. 17 Ohio Jurisprudence, 144, Section 115. Of course, the actual establishment of a prima facie case would require the adverse party to destroy it by counter evidence of equal weight, but it would not require him to assume the burden of proving any issue. That is the Ohio rule in all classes of cases, including cases involving bailments. 5 Ohio Jurisprudence, 124, Section 30.

In the absence of any Supreme Court decision on the duty owing by a parking lot operator to the customer, the trial court followed Blackburn v. Norris, 46 Ohio App., 469, 189 N. E., 262, and North River Ins. Co. of New York v. Ohmer, 63 Ohio App., 346, 26 N. E. (2d), 767, in which the rule was applied to the bailment arising by the leaving of an automobile for repairs in one case and storage in the other. We think the trial court was correct in construing those cases and that such construction makes them conform to the Ohio rule that the burden of proof as fixed by the pleadings and law never shifts.

Counsel for plaintiff cite Oskamp, Nolting & Co. v. Southern Express Co., 61 Ohio St., 341, 56 N. E., 13, and Savin v. Butler, 19 Ohio App., 68, as holding that the burden of proof is on the bailee. The first case was a common carrier case in which the defendant was an insurer with certain exceptions. All the case holds is that the burden was on the carrier to bring itself within (he exception, which is the general rule. There was no question of the shifting of the burden of proof raised or discussed. The facts in the Savin case are not stated in detail, but it appears that jewelry was left with a pawn broker as 'security for a loan under a written contract, in which the bailee expressly exempted himself from liability for loss by fire or burglary. The jewelry was taken from the bailee by robbers. From the cases cited in the Savin case (Davidson v. Graham, 2 Ohio St., 131, and T. & O. C. Ry. Co. v. Ambach, 10 C. C., 490, 6 C. D., 574) in support of its conclusion, we infer that the court considered it a case in which the defendant was relying upon an exception to an otherwise general liability and required him to show that he came within the exception and, of course, without fault or connivance on his part.

Our conclusion is, that the trial court applied the correct rule of law. The evidence is such that it could be reasonably inferred that the defendant exercised reasonable care and that the automobile was stolen from the lot notwithstanding. We, therefore, cannot say that the court erred in holding that the plaintiff had failed to sustain the burden of proof.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross, P. J., and Hildebrant, J., concur-in the syllabus and opinion.


author: Sherick, J.

text:
    Orndorff, Appellant, v. The Ohio Power Co., Appellee.
    (No. 650
    Decided December 11, 1943.)

      Messrs. Leasure, Guffey & Leasure and Messrs. Harrison & Marshman, for appellant.

      Messrs. Tussing & Lane and Messrs. Meyer, Johnson S Kincaid, for appellee.
   Sherick, J.

This appeal oil a question of law presents the single query as to whether a trial court must dismiss an action for want of prosecution on the day of trial when a plaintiff has “no intention of voluntarily dismissing the case” or of “proceeding with the trial,” but recommends that the court do so upon its own motion.

Plaintiff sustained an injury in September of 1936. His action for damages grounded thereon was commenced in 1938. Trial was not had until July of 1943. During the five years the cause was pending, preliminary matters were disposed of, pleadings were amended and answers were filed which set forth affirmative defenses. No setoff or counterclaim was pleaded or relied upon. No reply was filed denying the affirmative defenses. The cause was at least once previously brought to trial, at which a jury was impaneled. That episode resulted in the court declaring a mistrial. After numerous continuances for one cause or another, the parties agreed upon a day for trial at which a nonresident judge was to preside. Defendant with its counsel and witnesses attended. The plaintiff and his counsel did not attend. Their absence was in conformity to counsel’s letter addressed to the court stating that plaintiff would not voluntarily dismiss his case and recommending to the court that it should do so of its own motion. The obvious purpose was to avoid a voluntary dismissal by plaintiff, to establish that the action of dismissal was by the court which action defeated plaintiff other than upon the merits, and, thereby, to permit plaintiff to commence a new action within a year under favor of Section 11233, General Code, long after the limitation of two years within which such actions must be commenced.

Plaintiff did not appear when the cause was called for trial. Thereupon the court recessed a reasonable time awaiting plaintiff’s appearance and plaintiff not appearing, the court proceeded to and did impanel a jury. Shortly thereafter, plaintiff’s counsel did appear and upon request declined to make an opening statement or to go forward with the case. He did, however, reiterate his refusal to voluntarily dismiss the cause and insisted that the court dismiss it as of its own motion. This the court declined to do. Thereupon plaintiff’s counsel retired from the courtroom and defendant was permitted to produce evidence supporting its affirmative defenses. At the trial’s conclusion defendant moved for a directed verdict. The motion was sustained and the jury so instructed. In conformity therewith the jury returned a verdict for defendant upon which judgment was entered and from which plaintiff appeals.

The respective claims of the parties are confined to two sections of the General Code, which are Sections 11586 and 11587. The pertinent portions thereof are as follows:

Section 11586: “An action may be dismissed without prejudice to a future action:

“1. By the plaintiff, before its final submission to the jury, or'to the court, when the trial is by the court;
“2. By the court, when the plaintiff fails to appear on the trial; * *

Section 11587: “If a setoff or counterclaim be pleaded, the defendant shall have the right to proceed to a trial of his claim although the plaintiff has dismissed his action, or fails to appear.”

Plaintiff insists that the word “may” appearing in Section 11586, General Code, has the force of and is equivalent to the word “must”; and that Section 11587, General Code, prescribes that a defendant may be permitted in but two instances to submit his side of a controversy after a plaintiff’s cause has been dismissed; that is, only when a defendant has pleaded a setoff or* counterclaim, which the defendant did not do in the present instance. It is maintained that Section 11587, General Code, must be construed and interpreted in the light of the maxim, “expressio unius est cxclusio alterius,” which is to say that inclusion of setoff and counterclaim within the statute implies the exclusion of all other situations therefrom. The defendant (appellee) controverts these claims with two pertinent observations; first, that the language of Section 11586, General Code, is permissive and not mandatory; second, that inasmuch as setoff or counterclaim were not pleaded in this case, the latter section can have no application to this cause.

It is elemental that courts at common law possessed inherent power independent of statute to regulate practice in the trial of actions, which of course included the matter of dismissal. It is equally true that our courts still possess these powers unless they have been abridged by statute. If the entire subject of dismissals is completely covered by legislative acts then - discretion disappears and courts must follow the statutory direction. Does Section 11586, General Code, completely cover the subject of dismissals? The answer is of course in the negative. The section simply prescribes that a plaintiff or the court may dismiss a cause without prejudice in six specific ways, all of which were recognized under the common láw. In this respect the section is simply declaratory of it. The statute concludes, that “in all other cases the decision must be on the merits, upon the trial of the action.” In that regard the section is antagonistic to the common law. It forbids dismissals without prejudice in any other way than the six specified ways. From these inescapable observations it is apparent that its antagonistic feature is the only portion thereof which changed pre-existing practice, and manifested the legislative reason for so doing. It sought to curtail the right of a plaintiff and the court from effecting dismissals without prejudice other than in the six enumerated ways. It was remembered that a defendant might possess rights; that he might insist on a decision on the merits, and that the action against him be brought to an end when an involuntary dismissal worked an injustice against him.

In Conner v. Drake, 1 Ohio St., 166, 170, in a case decided before the adoption of the enactment of the Code of Civil Procedure, the court had this to say concerning dismissals:

“The propriety of permitting a complainant to dismiss his bill is a matter within the sound discretion of the Court, which discretion is to be exercised with reference to the rights of both the parties, as well the defendant as the complainant. After a defendant has been put to trouble and expense, in making his defense, if, in the progress of the case rights have been manifested that he is entitled to claim, and which are valuable to him, it would be unjust to deprive him of them, merely because the complainant might come to the conclusion that it would be for his interests, to dismiss his bill. Such a mode of proceeding would be trifling with the court, as well, as with the rights of defendants.”

It is fairly well settled, as said by Chancellor Kent, in Newburgh Turnpike v. Miller, 5 Johns. Ch. (N. Y.), 101, 9 Am. Dec., 274, 279, that:

“In respect to statutes, the rule of construction seems to be that the word may means must, or shall, only in cases where the public interests and rights are concerned, and where the public or third persons have a claim ele jure.”

The court in Fugitt v. Lake Erie & W. R. Co., 287 F., 556, considered a matter of dismissal and the force of the word “may” appearing in Section 11586, Ceneral Code. The court, though not bound to follow the statutory provision, adopted the rule of the Newburgh Turnpike case, supra, and concluded under the circumstances encountered by it, that:

“It would have been an abuse of discretion to have humored plaintiff’s thought that he was at liberty to force a dismissal by simple non-attendance on the day of trial.”

Without enumerating a considerable number of authorities which conform to the views herein expressed, we content ourselves with direction to Volume 26 of Words & Phrases at p. 795, and to 5 L. R. A. (N. S.), 340, if the subject is desired to be further pursued.

The second phase of our inquiry requires a determination of the force and intent of the provisions of Section 11587, General Code, previously quoted. Clearly it provides that neither a plaintiff nor the court may dismiss plaintiff’s claim when the defendant has pleaded a setoff or counterclaim, and thereby deny defendant his right to proceed to trial. The section forbids a practice which could be pursued under the common law. It not only was intended to prevent duplication or multiplicity of actions, and the injustice countenanced by an involuntary dismissal of defendant’s cause of action; but sought to settle all joinable claims between the same parties in one action. The Legislature in this case was dealing" with dismissals of plaintiff’s actions occurring in causes wherein defendants had countered by pleading causes of action against plaintiff. It was not legislating on matters which involved mere defensive denials or affirmative defenses. It had already taken care of such situations in the preceding Section 11586, General Code.

It has frequently been held that the maxim is not of universal application and that it should be cautiously invoked in statutory construction. It is used as an aid in determination of legislative intent, illusive as it sometimes is, but never to defeat an intent which is clearly indicated and free of donbt or ambiguity. The section deals with but one subject, that is cross causes of action where a plaintiff’s claim is dismissed. The maxim is not applicable to the section, or the section to the situation here encountered.

It is the judgment of this court that Section 11586, General Code, is the relevant statute, and that the trial court had inherent power to proceed upon the course it did pursue. In view of the state of the record before it, it did not abuse its discretion. The judgment is affirmed.

Judgment affirmed.

Montgomery, P. J., and Putnam, J., concur.