author: Ross, P. J.

text:
    The Cincinnati Camp Meeting Assn. of Methodist Episcopal Church, Appellee, v. Danby et al., Appellants.

      (No. 155
    Decided October 22, 1943.)

      Mr. Oliver M. Dock and Mr. Charles Tatgenhorst, for appellee.

      Messrs. Nichols, Speidel d> Nichols, for appellants.
   Ross, P. J.

The defendants appeal on questions of law from a decree in favor of the plaintiff entered by the Court of Common Pleas of Clermont county.

The defendants are the owners of certain parcels of real estate which they procured directly or indirectly from the plaintiff. The defendants are also members of the plaintiff association.

All the deeds to the defendants and those of their predecessors in title contained a stipulation that the particular conveyance was made subject to the restrictions that the premises were to be used for camp meeting association purposes and to be used only in accordance with the constitution and bylaws, rules, and regulations of the association, as the same then existed or might thereafter lawfully be made, and to be used in no other way and for no other purpose.

The charter of the association provided:

“III. The purpose for which said corporation is to be formed is not for profit, but to provide succession to a former board of trustees composed of the corpora-tors herein named, and support and maintain perpetually, religious camp meetings in strict accordance with the policy, established usage, and discipline of the M. E. Church, and such other meetings as shall be approved by the board of trustees, so that the members and friends of said church may assemble once annually, or oftener if desired, forever, for religious worship, in either the English or German languages.

“And to hold sacredly in trust forever for the M. E. Church, the money, property and values of every kind heretofore donated, contributed, collected, and held for camp meeting purposes, and receive and hold in like perpetual trust, all gifts, devises, bequests, grants, donations, subscriptions and acquisitions of every kind hereafter made, and all lands, buildings and property, personal and real, already acquired, or which may hereafter be acquired as necessary or convenient to the successful and proper conduct of said religious camp meetings, and the furnishing of convenient and desirable tents, cottages, and summer homes, roads, walks, light, water and all other necessaries, conveniences and accommodations upon the camp grounds of the association at Loveland, Ohio, for members and friends of the M. E. Church, who may regularly, or from time to time, attend said camp meetings for religious worship, and desire such accommodations and camp meeting homes.”

From the evidence it appears that for some considerable period camp meetings were held upon the land of the association. A hotel was operated and a large auditorium was provided for use of those attending the meetings. Later, Chautauqua courses were conducted on the grounds. For some fifteen years, however, no such activity has been associated with the property involved. During the period, the association has conveyed lots to the defendants upon which residences existed or have been built. No deed, however, was made to anyone not a member of the association.

There can be no question that the whole property and appurtenances were originally designed for use in the warmer months in the year. From time to time those who occupied the residences have continued to reside there during the entire year. The property of the association is enclosed and entrance to the same is obtained through two gates which can be locked. A watchman or caretaker of the property of the association is employed throughout the year. The hotel has been torn down and many of the facilities for holding a camp meeting or gathering of any considerable number of people have fallen into disrepair.

A number of trustees of the association are elected each year and the entire body of trustees constitutes the governing body of the association.

As early as 1904 the trustees adopted a bylaw, providing :

“Resolved that the bylaws of the association be amended by the addition of the following — Property owners will not be allowed to use or rent their cottages for use as tenements by persons or families who do not occupy them for camp meeting association purposes or for summer homes — and it is hereby declared that such use by persons permanently occupying cottages as aforesaid is contrary to the constitution of this association.”

Later a resolution was adopted by the trustees to the following effect:

“Whereas the declared purpose of this association, as expressed in its charter and constitution, is to maintain camp-meetings and other religious services, and convenient and desirable summer homes on its campground at Epworth Heights, Clermont county, Ohio, be it resolved, that this board adopts and declares as a standing rule of this association, that no person, firm, or corporation shall maintain a boarding-house or keep boarders on said camp ground, except during the summer months, and then only by special permission had upon application to this board in each particular case.”

Again the minutes of the trustees, on September 15, 1911, show:

“After a discussion of the necessities, and so on, of the camp ground, it was decided to have two signs made as follows: positively no passing through— closed eor the season, one to be put on the front gate and the other at the entrance of the back road.”

And, again, on October 20, 1913:

“On motion, the season as recognized by the board is from June 1st to October 1st. If lighting is desired previous to June 1st or after October 1st, the expense-must be borne by the cottagers.”

Thereafter, appropriate action was taken by the board to enforce the closing of the grounds from December 1st to April 1st. The gates were locked, and the locks broken by the defendants who claim first, that this action of the plaintiff association is a violation of their rights as property holders; and, second, that the regulation is an unreasonable interference with their rights as members of the association. Both of these contentions are largely based upon the premise that the original purposes of the association have been in fact long since abandoned.

The evidence is clear that for many years no effort has been made to use the premises of the association for the purposes for which the property was originally acquired.

Appropriate action could be taken by the members of the association to secure the release of the property if a proper showing was made. No such action has been taken. The defendants seek to obtain the same result by force, and have avowed their intention to continue to use their premises in violation of the regulations adopted by their trustees.

As to the first contention, the defendants received and accepted deeds containing a definite and specific stipulation in effect providing that the grantees would hold thbir property subject to the regulations of the trustees of their association. This is an answer to the first contention that the rights of the defendants as property holders have been violated.

The stipulation in the deeds was more than a mere building restriction.' The grantees from the association were members of the grantor, and as such they could not hold the property and at the same time deny their membership and the obligations and limitations incident thereto. The act of the association through its trustees is their act and they are estopped to deny the effect of this stipulation in their deeds and their membership in the association. Boone v. Century Athletic Club, 49 Ohio App., 155, 195 N. E., 395.

As was pointed out by the trial judge, the defendants have an effective remedy within their association. They cannot now deny the effect of stipulations in their deeds, which they accepted, simply because now it suits their convenience to do so..

Is the regulation so unreasonable as to constitute an abuse of the discretion lodged in the trustees by the rules of the association and the stipulations in the deeds ?

The association is bound to protect the property committed to the care "of the trustees. Fire hazards are commonly known to increase with cold weather. Roads are subject to heavier wear in winter than they are in summer.

We are unable to find that just reason does not support the action of the trustees.

Courts will not interfere with the internal management of a corporation not for profit in the absence of proof that the managing officers are acting in excess of their corporate power, or that they are guilty of collusion or fraud. “The court will not interfere to restrain the exercise of discretion on the part of the managing* agent in the absence of fraud or collusion, no matter how clearly it may appear that they are mistaken as to the best course to pursue.” 10 Ohio Jurisprudence, 1150.

We do not find the equities with the defendants.

It is apparent that they are now met with a situation which must have been a patent possibility, if not a certainty, when they became members of the association and took the deeds containing a caveat, warning them of that which has occurred. They have a remedy if enough members of their association agree with their position.

The decree of the Court of Common Pleas of Clermont county is affirmed.

Decree affirmed.

Matthews and Hildebrant, JJ., concur.


source: Caselaw Access Project

author: Montgomery, P. J.

license: Public Domain

text:
    Cummins et al., Appellants, v. Muskingum Watershed Conservancy District, Appellee.
    (No. 702
    Decided December 16, 1943.)

      Messrs. Rowland & Rowland and Messrs. Thornburg & Lewis, for appellants.

      Messrs. Fisher, Limbach, Smith & Renner, for appellee.
   Montgomery, P. J.

The appeal to this court is on a question of law. The lower court sustained a general demurrer to plaintiffs’ second amended petition and, they not desiring to plead further, the court rendered final judgment. The particular question in this case has never before been presented to this court, but the members of the court of this judicial district, having had so many phases of this Muskingum Watershed Conservancy District matter presented to them, and being familiar with the provisions of the act establishing the district, have encountered less difficulty than ordinarily would have been anticipated. This is the fifteenth opinion which the writer has written in attempting to construe the provisions of that act, and in determining the rights of interested parties thereunder, exclusive of reviews of awards made.under the provisions of Section 6828-34, G-eneral Code.

The second amended petition avers in substance that the plaintiffs were the owners and operators of a farm of about 141 acres of land in Freeport township, Harrison county, Ohio, within the boundaries of the conservancy district, through which farm runs what is known as Big Stillwater creek. The second amended petition contains a description of the topography of the land, the purposes for which it was used and the nature of its underdraining. It further avers that prior to May, 1935, Big Stillwater creek flowed through its channel without obstruction of any kind in its natural flow and was easily fordable except in times of flood. It further avers that title was obtained by the conservancy district, on or about April 1, 1935, to lands lying above plaintiffs’ farm and the construction on the land so acquired, known as the Piedmont dam, impounding the waters of such creek and valley.

It is further averred that on February 26,1936, there was duly filed, the conservancy appraisal roll, to which the plaintiffs filed exceptions, and thereafter filed a written notice demanding trial by jury, but that no condemnation proceedings have as yet been had.

As a first cause of action it is averred that during floods of such creek on June 4, July 4, August 4 and September 4,1935, sterile material, rock, clay, silt, etc., were, as the result of the construction of such dam, thrown upon the land of the plaintiffs which prevented the obtaining of ordinary crops from the farm during the years 1935, 1936, 1937 and 1938.

As a second cause of action it is averred that the flood waters impounded in the dam were permitted to flow out more rapidly than could be taken away, contrary to the operating purposes of the plan, and that as a result thereof plaintiffs’ ready means of crossing Big Stillwater creek from one portion of their land to the other during flood time was destroyed, thereby adding to the difficulty of. getting from one portion of the land to the other. And it is further averred that, as the result of such excessive flow of water, the tile underdraining on the land is made inadequate.

In setting out the third cause of action, it is averred that the usefulness'of plaintiff’s underdraining tiling system was completely destroyed by reason of the things theretofore averred in such pleading.

The demurrer was based upon four grounds, but, taking the view which we do, it is unnecessary to discuss any of these grounds, excepting that the second amended petition does not state a cause of action. Further, taking the view which we do, it is necessary in respect to that ground of demurrer, to consider only one reason which we regard as conclusive.

Section 6828-27, General Code, authorizes and directs the procedure by the board of appraisers of such a district, and, among other things, directs them “to appraise the damages sustained and the value of the land and other property necessary to be taken by the district for which settlement has not been made by the board of directors.”

Section 6828-30, General Code, directs the making by the appraisers of a report and includes, among other things, the requirement that there shall be reported “the amount of damages appraised.”

Provision for a decree on appraisals calling for approval or disapproval is found in Section 6828-33, General Code, which decree is to be had after hearing and determining any exceptions or objections. In the instant case the confirmation was on November 21, 1936.

The leading case in Ohio governing appraisals involved in conservancy district construction, of course, is that of Miami Conservancy District v. Ryan, 104 Ohio St., 79, 135 N. E., 282. So far as we are now con-, cerned, the importance of that case lies only in the force and dignity which the Supreme Court accords to this conservancy act and to the exclusiveness of its provisions.

By way of precedent and analogy, we direct attention to our interpretation of Section 6828-37, General Code, which is entitled “Change of Official Plan * # *,” holding such section to be exclusive as -to the matters governed by it. In our opinion in case No. 457 in this court, United States Quarry Tile Co. v. Muskingum Watershed Conservancy District (unreported), appeal dismissed, 130 Ohio St., 590, 200 N. E., 757, decided December 11, 1935, we said:

“If the assessment roll had been filed, then.it would have been necessary to proceed in the manner provided by Section 37. The assessment roll not having been filed, this exclusive procedure is not applicable.”

If a landowner be dissatisfied with the appraisal, he may file exceptions as provided by Section 6828-32, General Code, which states:

“Any property owner may accept the appraisals in his favor of benefits and of damages and of lands to be taken made by the appraisers, or may acquiesce in their failure to appraise damages in his favor, and shall be construed to have done so unless he shall within ton days after the last publication provided for in the preceding section file exceptions to said report or to any appraisal of either benefits or damages or of land to be taken which may be appropriated. * *

The second amended petition avers, as heretofore stated, the filing of exceptions which appear to have been filed on March 31, 1936. True, they appear to go only to the question of benefits, but there could have been exceptions as to damages, and, as we view it, under the provisions of Section 6828-32, above quoted, the plaintiffs shall be construed to have waived the appraisement of damages in their favor.

On December 1, 1936, bond and demand for jury trial, as required by Section 6828-34, General Code, appear to have been given, and this demand appears to have been solely for a jury trial to determine the amount of benefits. Again, however, the appeal could have been from a failure to award damages. As we stated in the case of State, ex rel. Millhone, v. Board of Directors of Muskingum Watershed Conservancy District (unreported), case No. 265, Guernsey county, decided March 19, 1940:

“If an appeal is allowed from an inadequate award, certainly an appeal should lie from the failure to make any award, and that such was the intent of the Legislature would seem evident from the provision of Section 6828-32 which authorizes the filing of exceptions from a ‘failure to appraise damages.’ ”

Plaintiffs in their reply brief take the position that express authority is given for such an action as this, by Section 6828-40, General Code. But a reading of 'this section will show that, so far as damages are concerned, reference is had only to damaging additional property not appraised in the original proceedings. Moreover, this claim is answered in the recent decision of the Supreme Court in the case of State, ex rel. Gross, v. Board of Directors of Miami Conservancy District, 141 Ohio St., 52, 46 N. E. (2d), 407. If there can be no appraisement by reason of enhanced benefits, it would follow by analogy that there could be no appraisement for enhanced damages. The second paragraph of the syllabus in the Gross case is as follows:

“Section 6828-40, General Code (Section 40 of the Conservancy Act), does not permit property, appraised in the original proceeding, to be reappraised from time to time by reason of enhanced benefits resulting from subsequent improvements thereon where there is no change in the official plan.”

• As the reason for not having availed themselves of the provisions of this conservancy act, heretofore discussed, plaintiffs assert that the damages now claimed by them to have been sustained were not foreseeable at the time of the filing of their original exceptions, or at the time of the approval of the appraisal roll. The first answer to this claim is to be seen in the dates themselves, hereinbefore mentioned. The second amended petition, itself, avers that the floods which caused the depositing of the silt were in the summer of 1935. The exceptions were on March 31, 1936, and the confirmation of the appraisal roll was on November 21, 1936. This in our judgment completely answers the claim as to the first cause of action and is directly applicable to the others, because, obviously, the floods would affect the underdraining tile and the ingress and egress across Big Stillwater creek.

We direct attention to the opinion which we wrote in the case of Village of Magnolia v. Muskingum Watershed Conservancy District (unreported), No. 674, decided on April 15, 1940, where we reversed an order of the conservancy court approving an attempted change of the official plan by the directors of the district, which change had been attempted on the ground of changed conditions due to flooding. In the course of this opinion we stated that “the character of the damage was contemplated in 1935, and the extent of it might have been foreseen.”

The reason for legislative enactment making the prescribed procedure conclusive and final is to be seen in the chaotic condition which would ensue if every landowner were permitted at any time during the operation of this Piedmont dam, or the other dams in the district, to bring claims for damages against the district, whenever he should conceive that Ms damages had been enhanced. With the hundreds and hundreds of individuals and corporations affected there would be no termination of claims or litigation. This might not be a conclusive answer, except for legislative enactment, but as we view it, the legislative enactment does cover the situation, and might well have been conceived for that purpose.

We come now finally to a discussion of Section 6828-62, General Code, which plaintiffs contend authorizes them to bring this action. If they are precluded, as we believe, by the foreseeable character of their damages at the time of the hearing of tlieir exceptions, they could not avail themselves of Section 6828-62, in any event. However, because of the reliance placed upon it, such section is entitled to some consideration.

It provides in substance that in case any individual or public corporation considers itself injuriously affected by any act performed by any official or agent of a conservancy district, and in case no other method of relief is offered, it shall have the following remedy: It shall petition the court before which such district was organized, for an appraisal of damages sufficient to compensate for such injuries and the court shall thereupon direct the board of appraisers of the district to appraise such damages and injuries and make a report to the court on or before a date named. Further procedure is therein provided for.

As we have tried to indicate, we consider that such section can not be applicable, because another and adequate method of relief was afforded under this act. In any event, that section by its terms does not authorize an action at law, but does authorize an application to the conservancy court for an order of appraisal of damages.

We direct attention to our opinion filed on December 23, 1936, in case No. 472, in this court, Superior Sand Corp. v. Muskingum Watershed Conservancy District (unreported), motion to certify overruled, February 10, 1937. Incidentally there is a parallel in the facts in that and this case. It was averred in that case that the proposed relocation of the Wheeling & Lake Brie Railroad siding would necessitate an additional haul of three quarters of a mile by the plaintiff, thereby increasing the cost of producing and marketing its moulding sand.

However, in that case the prayer of the petition was not one for damages, as in the instant case, but was for an order directing the board of appraisers to make an appraisal of such damages, and that a hearing be accorded the plaintiff, under Section 6828-62, General Code. We said:

“This section does authorize the procedure sought by the appellant ‘in case no other method of relief is offered under the act.’ Is any other method of relief offered under the act? We think so. And it follows from the language quoted that the remedies are not alternative or optional remedies. This desired remedy is available only in case no other is given.”

We then discussed Sections 6828-32 and 6828-34, holding that the relief afforded was adequate, and affirmed the judgment which had been entered on behalf of the district.

Attention is directed to the case of Hopkins v. Upper Scioto Drainage & Conservancy District, 67 Ohio App., 505, 37 N. E. (2d), 430. The court in that case, in its opinion, took the position taken by the conservancy district’s counsel in the instant case, as to another ground for sustaining the demurrer, which ground we have not discussed. Wo simply direct attention to the second paragraph of the syllabus, which is in the following language:

“Section 6828-62, General Code, providing that ‘no damages shall be allowed under this section which would not otherwise be allowed in law,’ expressly prohibits the imposition of any liability upon a conservancy district in an action brought against it by an individual for its failure to maintain the waterways or ditches in the district in such a condition as to permit the free and unobstructed flow of water, thereby causing the destruction of such individual’s crops.”

The judgment of the Common Pleas Court will be affirmed.

Judgment affirmed.

Siibrick and Doyle, JJ., concur.

Doyle, J., of the Ninth Appellate District sitting by special assignment in the Fifth Appellate District.


author: Metcale, J.

text:
    Howe, Admr., Appellant, v. The Citizens Central Bank of Nelsonville, Appellee.
    (No. 462
    Decided May 4, 1942.)

      Messrs. Jones, Jones & Erskine, for appellant.

      Mr. John F. Netvcomb and Mr. Elmer E. Jacobs, for appellee.
   Metcale, J.

Ralph C. Howe as administrator of the estate of Alclred Wayne Antle, deceased, filed his petition on August 5, 1941, in the Court of Common Pleas of Athens county, Ohio, against The Citizens Central Bank of Nelsonville, Ohio, seeking to recover from the defendant the amount theretofore paid it on a promissory note.-

The pertinent allegations of the petition are that plaintiff’s decedent died intestate on October 18, 1938, indebted to defendant on a promissory note in the amount of $500, dated July 29, 1938, and due ninety days thereafter; that the same was duo and payable on the 27th day of October, 1938, and was paid by the plaintiff prior to the time that an inventory and appraisement were made in the estate and at a time when the exact financial condition of the estate was unknown to the plaintiff; that the inventory and.appraisement returned and approved show assets in the sum of $9,934.25 and the schedule of debts filed and approved shows debts in the sum of $29,890.44; and that the estate by reason thereof is insolvent. The petition further alleges that the payment to defendant constituted an unlawful preference and unjustly placed the defendant in a better condition than the other general creditors; that, therefore, the defendant is indebted to the plaintiff for the amount paid it with interest; and that demand for payment was made on the defendant, which was refused.

To this petition the defendant demurred on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and dismissed the petition, from which judgment plaintiff appeals on questions of law.

In support of its demurrer the defendant relies upon Section 10509-130 of the General Code of Ohio (114 Ohio Laws, 430) and the trial court in its written opinion states that the sustaining of the demurrer is based upon this section. Section 10509-130 was in force and effect at the time the cause of action, if any, arose in this case, and, if applicable, governs this proceeding, although that section was repealed, effective August 22, 1941. It read as follows:.

“When there are presented to an executor or administrator valid claims in excess of the amount of assets in his hands, he shall represent to the court that the estate is insolvent, setting forth the facts relating to such insolvency, and shall prorate and pay over the assets remaining in his hands to and among such creditors as prove their debts pursuant to such order as is made by the court. From such order any person affected thereby may take an appeal to the Common Pleas Court in the same manner as provided by law as to appeal from an order, decision and judgment of the Probate Court settling the accounts of an executor or administrator. The creditors of the deceased, who previously were paid, shall not be liable to refund any part of what was received by them.”

It is urged that the last sentence of the above section defeats the allegations of the petition. This would be true if the defendant had been paid in accordance with former Section 10509-127, General Code of Ohio (114 Ohio Laws, 429), in force and effect at that time. It read:

“If an executor or administrator, notice of whose appointment has been given as provided in this chapter, does not, within six months thereafter have notice of demands against the estate, which .will authorize him to represent it insolvent, after the expiration of such six months, he may proceed to pay the debts due from the estate. He shall not become personally liable to any other creditor in consequence of such payments made before notice of his demand, although the remaining estate be insufficient to satisfy such creditor.”

The provision in the statute relative to nonliability to refund on the part of a creditor presupposed and was dependent upon the creditor having been paid according to lav/. And, of course, if the administrator has given all the creditors an opportunity to present their claims and has followed the statute in paying them the creditors should be protected against refund in the event some other claim or claims are presented that will make the estate insolvent. Otherwise there would be no stability in the administration of estates and both {¡lie administrator and the creditor would never know7 where they stood until final distribution of the estate. A careful reading of the various enactments of the Legislature for more than one hundred years indicates clearly that, in order to protect either the administrator or the creditor, the payment away of the assets of an estate must be in accordance with law.

While not under consideration in this case, present Section 10509-127, General Code, effective August 22, 1941, contains, in substance, the provisions of former Section 10509-127 and the provisions, in regard to refund, of former Section 10509-130, clearly showing the relation of these enactments.

Section 10509-130 must be applied in relation to other provisions of the Code pertaining to the payment of debts. To permit it to stand alone, which was never the intention of the Legislature, would annul former Section 10509-127 as well as other sections pertaining to the administration of estates and would result in unlawful preference among the creditors of the estate. The provision of Section 10509-130 urged by defendant as defeating the petition is not applicable to the facts alleged.

Plaintiff urges that the case of Rogers v. Weaver, 5 Ohio, 536, is in point. The first paragraph of the syllabus of that case is as follows:

“Administrator, supposing an éstate solvent, pays creditor beyond his distributive share, upon final settlement may recover back the difference, in an action of money, had and received.”

Counsel for defendant take the position that that case, having been decided prior to any enactment of the Legislature on the subject, is not applicable. The eases in both the Court of Appeals and the Supreme Court of Ohio, which wo have examined hold that the law laid down in the Rogers case, supra, is still the law, providing the paying away was a mistake of fact and not of law, and with this we agree.

The Supreme Court in the case of Phillips, Exr., v. McConica, Gdn., 59 Ohio St., 1, 51 N. E., 445, 69 Am. St. Rep., 753, held in the first paragraph of the syllabus that “an action to recover back money paid out by an executor upon distribution, by mistake, is properly brought in the name of such executor in his official capacity,” but further held that if it was paid under a mistake of law and not of fact the money could not be recovered back.

The Court of Appeals for Butler county, in the case of Moore, Admx., v. Farmers State & Savings Bank of Oxford, 47 Ohio App., 10, 190 N. E., 42, held in the first paragraph of the syllabus:

“Administratrix who has paid assets of estate to creditor beyond his distributive share, upon final set-estate solvent,' may maintain action against creditor in representative capacity to recover excess paid.” The court in that case said on page 12:

‘ ‘ Concerning the question, has the plaintiff the right as administratrix to maintain this action, the plaintiff relies on three Ohio cases. The first is Rogers v. Weaver, 5 Ohio, 536, which holds that where an administrator, supposing an estate solvent, pays the creditor 'beyond his distributive share, he may upon final settlement recover back the difference in an action.

“Under the facts alleged in the petition this case would be directly in point. The petition alleges the payment out of assets of the estate, believing the estate solvent. If the money paid were assets of the estate, lawfully received as such, under the authority of Rogers v. Weaver, supra, the administratrix could maintain the action.”

The court in that case found a different situation by reason of the answer but in the ease before our court we are concerned at this time only with the petition.

Again, on page 13, the court in the Moore case, supra, in discussing Phillips, Exr., v. McConica, Gdn., supra, said:

“If the money paid out by the plaintiff to the defendant had been paid out of assets of the estate, the Phillips case would be in point.”

In the case before us the petition alleges that the money was paid out by reason of the administrator not knowing the estate to be insolvent. This was a mistake of fact and the petition further shows that the money was paid out of the assets of the estate. We therefore conclude that the petition states facts sufficient to constitute a cause of action and that the demurrer thereto should have been overruled.

It follows that the judgment of the Common Pleas Court in sustaining the demurrer is reversed and the cause remanded for further proceedings according to law.

Judgmand raversed.

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


author: By the Court.

text:
    Dusi, Appellee, v. Albanese et al., Appellants.
    (No. 3629
    Decided October 2, 1943.)

      Mr. Will J. Rays, for appellee.

      Mr. E. A. Moriarty, for appellants.
   By the Court.

This matter comes to this court on appeal from the judgment of the Municipal Court of the, city of Columbus, Ohio.

The plaintiff below brought an action against the defendants upon a written and an alleged verbal building contract, in which the plaintiff asserted that he agreed with the defendant to furnish the material and labor and construct a two-story, five-room dwelling house for the total sum of $4,500; that he furnished the labor and material as required by the written contract; and that the defendants paid $4,430, leaving a balance due of $70 on the written contract.

For a second cause of action, plaintiff asserted that he furnished material and performed labor for extras in accordance with the defendants’ direction, such extras being a fruit room, an extra room on the second floor, weather stripping and screening, amounting in all to $295.34; and that .the total amount due to him was $365.34. The written agreement between the parties was for the construction of a five-room dwelling to be erected in accordance with plans and specifications furnished by the second party, which plans and specifications were declared to be a part of the contract.

The answer of the defendants denied the indebtedness in any amount, and alleged that, the plaintiff entered into the written contract which provided that the drawings and specifications were a part of the contract ; that such plans called for a six-room house with the fruit room in the basement and for screens and weather stripping; and that the only item referred to in the plaintiff’s petition not covered by the specifications was the screening of the doors.

Defendants denied that there was any oral contract in reference to extras, but that all extra work was provided for in the written contract, plans and specifications, and they denied that they were indebted to plaintiff in the amount claimed ($295.34) or in any amount whatever.

Defendants also alleged that the Grandview Lumber Company had filed a lien against the property for $224 for material furnished the plaintiff for the construction of the house, which had not been paid.

In their cross-petition the defendants said that the plaintiff had not paid the claim of the lumber company for which the lien was filed. To this cross-petition an answer was filed by the plaintiff, which is not material in its allegations.

A jury was waived and the cause was heard by a judge of the court which rendered judgment on October 2, 1942. The court found for the plaintiff in the sum of $365.34, the entire amount claimed in the petition, and dismissed the cross-petition. The motion for new trial was overruled and judgment rendered.

Four assignments of error have been asserted:

(1) The court erred in admitting and considering evidence of an alleged verbal contract which varied and contradicted the terms of the written agreement.

(2) The court erred in rendering judgment for the plaintiff, for the reason that there was no consideration for the alleged oral contract.

(3) The court erred in dismissing defendants’ cross-petition.

(4) The judgment is against the manifest weight of the evidence.

Lengthy briefs were filed by each party. Much of the difficulty has arisen from the fact that the contract as originally written and signed was for a five-room house with one bedroom and kitchen on the first floor and two bedrooms on the second. This did not meet with the approval of the F.H.A. which was loaning money for the structure. Afterwards, the parties had further consultation' and agreed that the structure should be altered in certain respects, mainly that there should be three bedrooms on the second floor and a kitchen, dining room and living room on the first floor, with some alterations in the basement in the construction of a fruit closet.. The written contract was not modified to provide for the six-room house instead of a five-room house. The original contract was for the completion of a two-story, five-room and one bath dwelling “in accordance with the plans, drawings and specifications for the same prepared and furnished by the party of the second part, which plans, drawings and specifications are hereby declared to be a part of this contract.”

We are of the opinion that the first assignment should not be sustained as the evidence introduced was not for the purpose of varying the terms of the written contract, but was to provide for the terms of the contract filially adopted for a different structure.

The second assignment is that the court erred in rendering judgment for the plaintiff for the reason that there was no consideration for the alleged oral contract. Inasmuch as the alleged oral contract provided for a modification of the dwelling, we are of the opinion that there was a consideration for such alleged oral contract, and the assignment is overruled. The record does not disclose a judgment of the court, being merely a copy of the court’s blotter, which discloses the fact that on October 2,1942, “the case called and the court finds for plaintiff for $365.34, interest and costs, cross-petition dismissed.” On the 3rd day of March, 1943, the notation appears, “Motion for new trial overruled. Judgment rendered for plaintiff for $365.34, interest and costs. Cross-petition dismissed.”

A motion for a new trial was filed on October 5,1942. Notice of appeal from the judgment of October 2, 1942, and from the overruling of motion for a new trial on the 3rd of March, 1943, was filed on March 16, 1943.

While we do not endorse the form in which the judgment of the court below appears upon the record, yet we recognize the fact that the parties have regarded it as a judgment of the court and will so treat it, but would suggest that if there be any future orders made by the court they be recorded with more formality.

The third assignment is that the court erred in dismissing the defendants’ cross-petition, which was to the effect that the Grandview Lumber Company has filed a lien against the property for $224 for material furnished to the plaintiff in the construction of the house which has not been paid for. The defendants were not entitled to judgment on the cross-petition for the reason that they had not paid the lien. The obligation rested upon the builder of the house to discharge this lien and nothing in the record shows that the same has been discharged. The lien may be finally asserted against the defendants’ house and if the plaintiff has recovered from the defendants the amount he claims without consideration being given to the lien, the defendants may suffer a loss and at that time would be entitled to recover. The trial court rendered judgment for the plaintiff for the entire amount claimed for the extras and for the unpaid portion of the original contract in the total sum of $365.34. While there is evidence supporting the claim of the plaintiff that the extras were to be paid for, yet we are of the opinion that some of the extras for which the plaintiff claimed payment were clearly carried in the specifications originally made a part of the contract. The plaintiff acknowledged, as will appear from answers to questions, that all that was due to him was $120. We are of the opinion that the court erred in rendering judgment for $365.34, and had the question of the lien not been presented we would hold that the judgment should have been limited to $120, the defendants having paid to the plaintiff as an advance payment two amounts, one $75, and one $5. The amount of the lien being $224, the same being in excess of that which the. plaintiff is entitled to recover, and the lien not having been paid, we are of the opinion that judgment should not have been rendered in favor of the plaintiff until there be a payment of the lien by the plaintiff, and that his action to recover from the defendants until that time was premature.

The fourth assignment is that the judgment is against the weight of the evidence and should be sustained.

Judgment reversed without prejudice. • Costs herein incurred will be borne by the plaintiff below.

Judgment reversed.

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


text:
    Simpson et al., Appellants, v. Springer, Appellee.
    (No. 6293
    Decided July 6, 1943.)

      Mr. Bert H. Long and Mr. Milton M. Bloom, for appellants.

      Mr. Walter K. Sibbalcl, for appellee.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, in favor of the defendant, rendered upon a verdict of a jury.

One of the errors assigned by the plaintiffs is iliat the answer to a special interrogatory was received, when the same was not signed by the identical jurors who signed the general verdict.

One of the nine jurors who signed the general verdict did not sign the answer to the special interrogatory, and one of the- nine jurors who signed the answer to the special interrogatory did not sign the general verdict. Eight jurors signed both verdict and answer.

It is asserted by plaintiffs that the same nine jurors must sign both the verdict and answer, otherwise the verdict can not be tested by such answer, as is provided in Section 11420-18, General Code, which reads:

‘ ‘ When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

Section 5, Article I of the Ohio Constitution provides :

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

In pursuance of such enabling- provision, the Legislature enacted Section 11420-9, General Code, which provides .-

“In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jxirors concurring therein, and they must then be conducted into court, where their names shall be called by the clerk, and the verdict handed to the clerk by the foreman. The clerk must then read the verdict to the jury and make inquiry if it is the verdict of three-fourths or more of their number.”

Section 11420-17, General Code, provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon. The verdict and finding must be entered on the journal and filed with the clerk.”

A jury in the Court of Common Pleas consists of twelve persons, no more and no less. Nine persons do not constitute a jury, although nine jurors may cause a verdict -to be the verdict of the jury. The verdict is not the verdict of three-fourths of the jury. It is the verdict of the jury, which, under the Constitution and statutes, must be comprised of twelve persons.

The same applies to the answering of special interrogatories. The answer is not the answer of nine, for nine do not constitute a jury. It is the answer of the jury which consists of twelve persons. See 24 Ohio Jurisprudence, 160, Section 25; Rummell v. Co-op Cabs, Inc., 30 Ohio Law Abs., 615.

Both the verdict and the answer to the special interrogatory were supported by the required number of the jury, and, therefore, in each case became the appropriate action of the jury. In each case the appropriate section of the statute was complied with. Nowhere, either in the Constitution, the statutes or any Ohio authority, does it appear that the same nine names must appear subscribed. If such were the case it would seem conclusive that the action in any particular case would not be the action of the jury, but of only three-fourths of it. In effect the Constitution and statutes provide for a three-fourths controlling vote of the jury, the result being not merely the action of such three-fourths, but of the jury. There is no provision in law for a jury of nine in the Court of Common'Pleas. The jury is a jury of twelve and the verdict and answer constitute action by the jury. Such is the manifest intent of the Constitution and statutes.

Hobbs, Admr., v. Nelson, 188 Wis., 108, 205 N. W., 918, is cited in support of the contention that the same portion of the jury (in Wisconsin ten) must concur in the verdict and answer. In that case, twelve jurors agreed- upon one answer to an interrogatory, which was inconsistent with the answer to another signed by ten of the jury. The court does, however, make the statement that the same ten must agree upon a verdict and answer. It is interesting to note that the Supreme Court of Wisconsin later withdrew its language that the same ten must concur in verdict and answer. In Will v. Chicago, Milwaukee & St. Paul Ry. Co., 191 Wis., 247, 210 N. W., 717, the syllabus is: '

“Where ten jurors were agreed that the defendant railroad company did not have knowledge that there was danger to its employees from a condition existing in its refrigerator cars, and that it ought not, in the exercise of ordinary care, to have known of such danger, and these two answers cover the entire range of possible liability of the defendant, judgment should be entered for the defendant notwithstanding the same ten jurors did not agree upon other questions of the special verdict. (Language in prior cases, particularly Hobbs v. Nelson, 188 Wis., 108, that ‘it is necessary for the same ten jurors to agree upon their answers to each and every question in a special verdict,’ withdrawn.) ”

Again, in this latter Wisconsin case, inconsistent answers to certain interrogatories were not considered such a clash between the answers as to make improper, a general verdict.

It might very well be that, if a given number of jurors, agreeing upon an answer to one interrogatory, signed an answer to another interrogatory and thereby created an unreconcilable inconsistency in their conclusion, both answers might be eliminated, or possibly result in a retrial, it being thus indicated that the minds of the jurors were in such a state of confusion that it was impossible for them to logically reach a conclusion. Bullock v. Yakima Valley Transportation Co., 108 Wash., 413, 184 P., 641, is also in accord with the rule than any ten jurors may answer an interrogatory.

In the instant case, the trial court submitted to the jury two interrogatories: “Was the defendant negligent? If so, state what date or dates, where on the property and in what manner defendant was negligent.” Nine jurors answered the first interrogatory in the negative, thus eliminating the necessity for an answer to the second. A juror, Kettler, who did not join in the general verdict, did, ■ however, join in the answer that the defendant was not negligent. Why he refused to be consistent and also join in the general verdict does not appear. A juror, Sutter, who joined in the general verdict, did not join in the answer to the interrogatory.

This situation presents no apparent inconsistency which would cause a court to conclude that the jury as such was so confused as not to be able to render a logical verdict.

The statutes have been complied with, and this court would not be justified in setting aside the verdict, because of the inexplainable action of these two jurors.

The jury answered the interrogatory and the jury rendered a general verdict consistent therewith.

An examination of other assignments of error discloses no error in the record, prejudicial to plaintiffs, and the judgment is affirmed.

Judgment affirmed.

Hildebrant and Matthew's, JJ., concur.


author: Putnam, J.

text:
    In re Jacoby: Guthery et al., Appellants, v. Jacoby, Appellee.
    (No. 960
    Decided July 26, 1943.)

      Mr. Hoivarcl F. Guthery and Mr. II. Alfred Donithen, for appellants.

      Mr. John Wilbur Jacoby, in propria persona.

   Putnam, J.

Under tlie provisions of Sections 1707 and 1708, General Code, charges were preferred against appellee, John Wilbur Jacoby, by a committee appointed by the Common Pleas Court of Marion county. A demurrer was interposed by appellee to the charges for the reason that the facts stated in such charges do not state facts which show grounds for disciplinary action by the court. The demurrer was sustained on the authority of State, ex rel. Oregon Bar Assn., v. Prendergast, 84 Ore., 307, 164 P., 1178, for the reason that the charges do not allege that appellee defrauded or intended to defraud anyone by an unlawful use of the mails, and consequently failed to conform to Section 1708, General Code, in “stating distinctly the grounds of complaint” as specified by this section. The appellants, not desiring to pleád further, appeal to this court on question of law, viz.: That the court erred in sustaining the demurrer and dismissing the charges.

The charges filed in this case read as follows:

“That the said John Wilbur Jacoby has been convicted of a crime under the laws' of the United States of America as follows: The said John Wilbur Jacoby was, on or about the 10th day of April, 1942, in the United States District Court for the Southern District of Ohio, Eastern Division, convicted of ten counts of an indictment, charging the use of the United States mails in furtherance of a scheme to defraud, and entering into a conspiracy for that purpose; that no appeal was taken from said conviction; and that said conviction has not been reversed or set aside.”

Sections 1707 and 1708, General Code, in their pertinent parts read as follows:

“Sec. 1707. The Supreme Court, Court of Appeals or Court of Common Pleas may suspend or remove an attorney at law [from office] or may give private or public reprimand to him as the nature of the offense may warrant, for misconduct or unprofessional conduct in office involving moral turpitude, or for conviction of a crime involving moral turpitude.” (Italics ours.)

“Sec. 1708. Before an attorney is suspended or removed, or publicly or privately reprimanded, written charges must be filed against him, stating distinctly the grounds of complaint, and a copy thereof, certified by the clerk, under the seal of the court, served upon him.”

The determination of this appeal involves the answer to three questions:

1. Is the phrase “a crime involving moral turpitude,” as used in Section 1707, General Code, confined to such an offense against the law of the state of Ohio or does it include such an offense against the laws of the United States, which is not a violation of Ohio criminal statutes?

2. Do the charges as filed allege the conviction of a crime involving moral turpitude?

3. Do the charges as filed “state distinctly the grounds of complaint” as required by Section 1708, General Code?

With reference to these propositions there has been no precise determination in Ohio. The discussion in other states involving these questions as applied to similar statutes and situations are in conflict.

The decisions in Idaho (In re Dampier, 46 Idaho, 195, 267 P., 452); Oregon (State, ex rel. Oregon Bar Assn., v. Prendergast, supra); New York (In re Donegan, 282 N. Y., 285, 26 N. E. [2d], 260; In re Kauffman, 245 N. Y., 423, 157 N. E., 730); and Colorado (People, ex rel. Atty. Genl., v. Brayton, 100 Colo., 92, 65 P. [2d], 1438) tend to support the position taken by appellee.

On the other hand Alabama (State, ex rel. Sanford, v. Riddle, 213 Ala., 430, 105 So., 259); Washington (In re Comyns, 132 Wash., 391, 232 P., 269); Illinois (In re Needham, 364 Ill., 65, 4 N. E. [2d], 19); and United States Courts (United States, ex rel. Meyer, v. Day, 54 F. [2d], 336) tend to support the position of appellants.

Let us consider these questions in order. What is meant by the word “crime” as used in Section 1707, General Code of Ohio? Crime is defined as follows:

“A ‘crime’ is a wrong which the government notices as injurious to the public, and punishes in what is called a criminal proceeding.” Mossew v. United States, 266 F., 18, 11 A. L. R., 1261.

“The terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are all synonymous, and ordinarily used interchangeably, and include any breach of law established for the protection of the public, as distinguished from an infringement of mere private rights, for which a penalty is imposed or punishment inflicted in any judicial proceeding.” State v. West, 42 Minn., 147, 43 N. W., 845.

This definition is quoted with approval in Ex parte Brady, 116 Ohio St., 512, 157 N. E., 69.

A¥e can and do adopt this as the generic meaning of the term crime. Did the Legislature use this word “crime” in its generic sense? As to statutory construction, in the case of Stanton, Pros. Atty., v. Prankel Bros. Realty Co., 117 Ohio St., 345, 158 N. E., 868, Chief Justice Marshall said, at page 349:

“It is a general rule of interpretation of statutes that the intention of the Legislature must be determined from the language employed, and, where the meaning is clear, the courts have no right to insert words not used, or to omit words used, in order to arrive at a supposed legislative intent, or when it is possible to carry the provisions of the statute into effect according to its letter.”

In various sections of the General Code of Ohio, when the Legislature used the words “crime,” “felony” and “misdemeanor” in a limited sense, it has specifically used words of limitation.

Section 13457-1, General Code, provides in part as follows:

“When a.person is convicted of a misdemeanor involving moral turpitude under the laws of this state, or an ordinance of a municipal corporation * * * and a previous conviction for any such misdemeanor, in this state or elsewhere, is proved against him, the sentence for the last offense shall not be less than double the penalty imposed for such previous offense.” (Italics ours.)

Section 13457-2, General Code, contains similar language^

Section 13458-1, General Code, provides in part as follows

“A person convicted of a felony in this state,'unless his conviction is reversed or annulled, shall be incompetent to be an elector or juror, or to hold‘an office of honor, trust or profit.” (Italics ours.)

It is to be' noted that Section 1707, General Code, does not specifically limit the word “crime” to an offense against the laws of Ohio, as is done with the words “misdemeanor involving moral turpitude” and “felony” in the above-quoted sections.

Section 13444-2, General Code (formerly Section 13659), provides in part: '

“No person shall be disqualified as a witness in a criminal prosecution by reason of * * * his conviction of crime.”

In Harper v. State, 106 Ohio St., 481, 140 N. E., 364, the court held that under Section 13659, General Code, a defendant could be cross-examined as to his conviction of crime under state and federal laws. In the case of State, ex rel. Beckman, v. Bowman, 38 Ohio App., 237, 175 N. E., 891, the court held that the words “or being convicted of a felony” as used in regulations forfeiting a policeman’s right to a pension on conviction thereof, do not mean a felony under the Ohio law, but under the law of the jurisdiction where the crime was committed. That case involved a conviction of a policeman under a federal statute. The contention was made that the word “felony” as used in Section 45 of the regulations governing the police relief fund meant a felony as defined by the laws of Ohio. On page 242 the court says :

“The other proposition suggested by counsel would lead to this, that, notwithstanding, a member of the police department of the city of Cincinnati might be indicted and convicted of a robbery in another state, and escape and return to duty, it would not bar him under the terms of Section 45. The section says ‘who is discharged for any offense other than * * * being convicted of a felony.’ Certainly it has reference to the conviction of a felony in any jurisdiction, and the character of the offense must be construed under the laws of the jurisdiction where committed.”

That case is in direct conflict with the case of In re Donegan, 282 N. Y., 285, 26 N. E. (2d), 260, on which appellee strongly relies upon the point under discussion and goes further than it is necessary to hold to sustain the position of the appellants on this point. The New York statute (Section 88, Judiciary Law) provides for the summary and irrevocable disbarment of an attorney in consequence of his conviction of a felony. The court held that the term “felony,” as used in the statute providing for the summary and irrevocable disbarment of an attorney in consequence of his conviction of a “felony,” includes only those federal felonies which are also felonies under the laws of the state and excludes such federal felonies as are cognizablé by statute laws as a misdemeanor or not at all, and hence an attorney, convicted in federal court of conspiracy to use the mails to defraud, which is a felony under United States laws but which would be only a misdemeanor when cognizable under the state laws against conspiracy to commit a crime, is not subject to summary disbarment.

The Ohio statute provides for disciplinary action against an attorney, ranging from private reprimand to disbarment, not automatically, for the commission of a crime involving moral turpitude.

The decision in the Donegan case turned upon the definition of a felony. The court, after tracing the development of classification of crimes into felonies and misdemeanors, pointed out that the classification merely represented the view which the given jurisdiction takes of the gravity of the offense; that crimes might be-felonies in other jurisdictions which did not fall within the New York definition of a felony; and that the respondent was convicted of a crime, which, though a felony under United States statutes, was only a misdemeanor under the New York law. Thus the case rests merely upon the classification of crimes. Granting for the sake of argument that the conclusion is sound when applied to the New York law (it is much weakened by Judge Loughran’s dissenting opinion), its persuasiveness is lost when applied to the Ohio statute. Disciplinary action under the Ohio statute does not rest upon the classification of crimes into felonies and misdemeanors. The sole tests are: (1) Is it a crime, that is, is it a violation of law; and (2) does that law create and define a crime involving moral turpitude? Acts involving moral turpitude are not confined to felonies but may be misdemeanors or a violation of laws unclassified. Yet the norm or standard as to what constitutes moral turpitude is fixed. It is-just as easy for the courts of Ohio to determine whether the violation of a' particular federal statute involves moral turpitude as it is to make the same determination as to the laws of Ohio.

Had the Legislature intended to confine the meaning of the word “crime” to an offense against the laws of Ohio it could have done so as it did in the above quoted section. When this term is used without any qualifications we may assume that the Legislature meant to use it in its generic sense. The Legislature not having supplied words of qualifications, the courts will not do so.

If the objection is raised, and it is, that there are no common-law crimes in Ohio, and there are not, still we must bear in mind the fact that Article VI of the Constitution of the United States provides as follows:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

Under our system of government we have a dual sovereignty, yet within the sphere that the Constitution delegates power and authority to the federal government, its laws and enactments are binding upon all the people of the United States just as much as state laws, within the sphere of state sovereignty, are binding. Both are laws of a sovereign authority and a violation of those laws are crimes within the generic meaning of that term.

Consequently, we hold that the word “crime” as used in Section 1707, General Code of Ohio, is used in its generic sense and includes an offense against the laws of the United States; that the phrase “a crime involving moral turpitude” includes an offense against a law of the United States creating and defining a crime involving rporal turpitude.

This brings us to a consideration of the second question, vie.: Do the charges as filed allege the conviction of a crime involving moral turpitude? '

Moral turpitude is a term which has been much defined by the courts. In some respects this term is like the term “reasonable doubt.” Its definition does not gain in clarity by prolixity of statement. In “Words- and Phrases,” twelve pages are given to various definitions by different courts and to the statement of what crimes do and do not involve moral turpitude. Probably the simplest definition is that moral turpitude is anything done contrary to. justice, honesty, principle or good morals. It is also defined as an act of baseness, vileness or depravity in the private or social duties which a man owes to his fellow men or to society in general contrary to accepted and customary rules of right and duties between man and man. It is also generally accepted that the norm of conduct by which an act is judged to determine whether it involves moral turpitude is a standard prevailing in the United States and at the present time.

Again, there can be no question that there are various shades and degrees of moral turpitude, varying from the vilest and basest acts of moral degeneracy, punishable by the severest punishment of death, to other acts which involve a very slight degree of moral turpitude and upon which society does not frown with such severity. Murder would come in the former category and perhaps a petit larceny could be used as an example of the latter. Again, acts may involve moral turpitude even though they are not crimes and certain acts may be crimes which do not involve moral turpitude at all. The severity of punishment imposed is not controlling on the issue whether the offense involves moral turpitude. Offenses or crimes in Ohio are classified as being either felonies or misdemeanors. Felonies are those punished by death or imprisonment in the penitentiary. All others are misdemeanors and yet it is generally recognized that misdemeanors may. involve moral turpitude. The question as to whether the violation of a particular penal statute involved moral turpitude has principally caused the diversity of decision. Is it .a question of law or of the facts in a particular case? Does a statute creating and defining a crime show in itself whether a violation thereof and a conviction thereunder involves an act of moral turpitude? Can a court take a particular statute creating and defining a crime, superimpose thereon the definition of moral' turpitude and say as a matter of law that the violation of the former involves the latter ?

A consideration of the cases and reason leads to the conclusion that some crimes are of such a nature by definition that they involve moral turpitude as a matter of law. Other crimes are of such a nature as by definition do not involve moral turpitude as a matter of law. In between these two classes there is another class of crimes where the determination as to whether moral turpitude is involved becomes a question of fact in the particular case.

In federal courts the phrase “conviction of a crime involving moral turpitude” has been much construed.

Title 8, Section 155, U. S. Code, makes conviction of a crime involving moral turpitude within five years after entry of the alien to the United States a ground for deportation. Federal courts generally refuse to look behind the conviction but only to the statute to see if the crime involves moral turpitude. In United States, ex rel. Robinson, v. Day, 51 F. (2d), 1022, it was held that forgery is a crime involving moral turpitude and neither the immigration officials nor the court may consider circumstances under which the crime was in fact committed; and conversely where the crime by its definition does not involve moral turpitude collateral circumstances cannot be considered to show actual immoral conduct.

Again in United States, ex rel. Meyer, v. Day, 54 F. (2d), 336, it was said that there is no distinction between the substantive crime of grand larceny and the attempt to commit it, and the court cannot go behind the judgment of conviction to determine the precise circumstances of the crime for which the alien was sentenced. Under this section petit larceny, perjury, forgery, using mails in schemes to defraud, lewdness and manslaughter in first degree have all been held to be crimes involving moral turpitude. Second degree manslaughter and assault have been held not to involve it.

In United States, ex rel. Mongiovi, v. Karnuth, 30 F. (2d), 825, it was said that to determine whether a crime for which an alien was convicted involves moral turpitude, reference must be had to the statutes of the sovereignty under which the conviction occurred.

In the case of In re Minner, 133 Kan., 789, 3 P. (2d), 473, 79 A. L. R., 35, it was held that the words felony or misdemeanor involving moral turpitude in a statute which provided for the disbarment of an attorney on conviction thereof, included a felony under the laws of the United States and a conviction thereof subjected the attorney to disbarment.

In the case of In re Rothrock, 16 Cal. (2d), 449, 106 P. (2d), 907, 131 A. L. R., 226, the court held that an assault with a deadly weapon did not as a- matter of law involve moral turpitude. In the course of the discussion the court said:

“Therefore, in convictions presenting doubtful cases on the question of moral turpitude, where the perpetrator of the offense is an attorney, the question whether the act involves moral turpitude properly may be resolved by a consideration of the nature of the offense as it bears upon his moral fitness to continue in the practice of the law. A consideration alone of the nature of the offense, therefore, may disclose that conviction thereof would not result in loss of the respect and confidence of his fellow-men, if his name be continued on the roll of attorneys. If that be the result of the consideration of the record of conviction alone, the conclusion may well be determinative of the question of moral turpitude, and the offense of- which the attorney was convicted will be held not to involve moral turpitude. If, however, the nature of the offense, considered alone or in connection with the record of conviction and the statutes defining the particular offense, does not disclose that the commission thereof would or would not cast discredit upon the attorney’s moral fitness to practice law, then an investigation into the circumstances will be permitted.”

From the above it can be seen that this court recognizes the general principle that whether a crime involves moral turpitude or not, it is sometimes a question of law and sometimes a question of fact.

In the case of State v. O’Leary, 207 Wis., 297, 241 N. W., 621, 81 A. L. R., 1193, the court had under consideration the question as to whether under the Wisconsin law an unreversed conviction of a crime involving moral turpitude was conclusive evidence of guilt in a proceeding for the disbarment of an attorney. The Wisconsin law did not make the conviction of a crime involving moral turpitude a separate and independent ground of disbarment. In the course of the discussion the court said:

“ (2). Is the record of conviction conclusive evidence of guilt in a proceeding for the disbarment of an attorney? * * *.

“Wo have come to the conclusion, however, that question No. 2 must receive a negative answer. The statutes of Wisconsin contain no provisions constituting conviction of felony or misdemeanor involving moral turpitude a separate, distinct, and independent ground for disbarment. Hence the question in every disbarment proceeding is whether the facts show that the defendant does not possess the essential character qualifications to continue in the profession. Assuming disbarment proceedings to have followed a defendant’s conviction for a crime involving moral turpitude, the question is, What weight, if any, is to be given to the fact of conviction? What probative force has the conviction in establishing the guilt of the attorney against whom the disbarment proceedings are prosecuted, and his unfitness to continue as a member of the bar?

“It is our conclusion that evidence of a conviction which stands unreversed, and which involves the solemn finding of a jury and the judgment of a court, that defendant has been guilty of acts involving such moral turpitude as to indicate his unworthiness to continue as a member of the bar, is not merely evidence of his guilt and his unfitness to practice law, but that prima facie it establishes both facts. * * *

“To hold otherwise would be virtually equivalent to making the conviction of crime involving moral turpitude an independent cause for disbarment. The Legislature has not done this, and the court is of the opinion that such a rule is too stringent.”

This language indicates that if Wisconsin had a statute making conviction of a crime involving moral turpitude a separate ground of disbarment, it would have been conclusive.

The Supreme Court of Illinois in the case of In re Needham, 364 Ill., 65, 4 N. E. (2d), 19, takes the opposite view in a case involving the precise federal statute in question in this case, vie.: Title 18, Section 338, U. S. Code (Criminal Code Section 215). On page 70 the court says:

“The United States statute charged to have been violated by the respondent creates and defines a crime the commission of which involves moral turpitude. * * * Anything done knowingly contrary to justice, honesty or good morals involves moral turpitude. # * * Attempting to obtain the money or property of others by fraud or false pretenses, whether through the use of the xnails or otherwise, involves moral turpitude * * ®.

“This court will not go behind the record of the respondents conviction. It was conclusive evidence of the respondent’s guilt.”

In Illinois there is no special provision of statute making conviction of a crime involving moral turpitude a ground for disbarment. However, the court says on page 69:

“It is contended that the judgment of the federal court is not binding here, and that the respondent should have been permitted to show his innocence of the crime charged in the indictment in that coux’t. In many states statutes provide for the disbarment of attorneys upon conviction of crimes involving moral turpitude. [Citing various states including Ohio.] In Illinois, even without a statute on the subject, a judgment of conviction of an attorney of a crime involving moral turpitude is conclusive evidence of his guilt and is ground for disbarment. People v. Meyerovitz, 278 Ill., 356 [116 N. E., 189]."

These cases together with the ones hereinbefore cited show the diversity of holdings. However, it is still apparent that the courts do adhere to the classification of crimes set-forth on page 155 of this opinion. Further quotatioxx from these cases would serve no useful purpose. The questioix still remains: Does Title 18, Section 338, U. S. Code, create and define a crime involving moral turpitude ixx aixy degree? In studying these cases oxxe poixxt ixx particular staixds out. In most of the cases where the courts hold that the particular crimes do xxot involve moral turpitude as a matter of law, the statutes ixx those jurisdictions malee the conviction of a crime involving moral turpitude a ground for automatic axxd permanent disbarment. The severity of this result has made the courts particularly hesitant to say that a particular crime involves moral turpitude as a matter of law, and thus to foreclose the respondent from showing facts which would indicate the degree of moral turpitude involved. However, under the Ohio statute these objections do not obtain. The conviction of a crime involving; moral turpitude in Ohio is ground for disciplinary action, but this disciplinary action does not necessarily involve disbarment. It can be anything from a private reprimand, in cases where the moral turpitude is slight, to permanent disbarment where it is great.

Prom a consideration of the above principles, cases and reasoning we think the conclusions arrived at in the Needham case, supra, are sound. It is difficult to conceive how one could be convicted of conspiring to and using the United States mails in furtherance of a scheme to defraud without doing any act involving some degree of moral turpitude. We can understand, however, that various acts, each of which would be a violation of this section, would involve different degrees of moral turpitude. These acts and circumstances it would be proper for respondent to show in mitigation to determine what disciplinary action would subserve the ends of justice.

Consequently, we hold that the charges as filed allege the conviction of a crime involving moral turpitude; that the United States Criminal Code, Section 215, Section 338 of Title 18, U. S. Code, creating and defining the crime of using the United States mails in furtherance of a scheme to defraud and entering into a conspiracy for that purpose, prescribes a crime involving moral turpitude in some degree as a matter of law.

The third question propounded, to wit: Do the charges as filed “state distinctly the ground of the' complaint” as required by Section 1708 of the G-eneral Code? From tlie answers already given to questions one and two, it would seem obvious that the answer to this question must be in the affirmative. However, the appellee insists that Section 1708 requires the allegation not only of (1) the conviction of a crime within the meaning of Section 1707, but also (2) the commission of an act involving moral turpitude. The answer is, as already given, that No. 1 as a matter of law in this case includes No. 2.

In this connection another consideration stands forth. Section 1707 contains two grounds for disciplinary action; (A) misconduct or unprofessional conduct in office involving moral turpitude, and (B) conviction of a crime involving moral turpitude. In analyzing these two grounds, a little reflection will show that A is much broader than B, and would include B if B had not been enacted. It would seem that any crime involving moral turpitude would also be misconduct involving moral turpitude. The Legislature must have had a special reason for including ground B. Now, in a proceeding under ground A, where an attorney is charged with misconduct involving moral turpitude and it was either not a crime under the laws of the sovereign power, or being so and there had been no conviction thereof in a court of justice, it is obvious that under Section 1708 not only must the acts of misconduct be alleged in detail but they must be such as involve moral turpitude. The measure of proof however would not have to be beyond a reasonable doubt but only by clear and convincing evidence. Where there had been no previous conviction this would be necessary to apprise the respondent of the nature of the charges against him and to determine whether they involved moral turpitude.

However, the same reasoning does not apply where an attorney has already been convicted in a court of record of a crime involving moral turpitude. In such case he has been duly indicted by a grand jury, the indictment containing a detailed recital of the acts done and statute violated. A trial 'by a jury has been had and a conviction obtained by evidence beyond a reasonable doubt, and that conviction sustained by the highest court or an opportunity for review given. The safeguards surrounding the accused in a criminal trial in state and federal courts are the best the Anglo-Saxon jurisprudence has been able to devise in eight centuries and go far beyond a litigant’s rights and safeguards in a proceeding under Sections 1707 and 1708, General Code. The question naturally arises why retry the whole issue again under rules less favorable to the accused than in a criminal trial?

Where the proceeding is under the second ground of Section 1707 and the statute violated involves an act of moral turpitude as a matter of law, an allegation of a conviction of a violation of that statute is a sufficient compliance with the provision of Section 1708 which requires the charge to state “ distinctly the grounds of complaint.”

Consequently, we hold that the demurrer to the charges in the ease was not well taken, and that the same should have been overruled by the court below. The judgment of the Court of Common Pleas is reversed and the cause is remanded with instructions to that court to overrule said demurrer.

Jiidgment reversed.

Montgomery, P. J., and Nichols, J., concur;

Nichols, J., of the Seventh Appellate District, sitting by designation in the-Fifth Appellate District.


author: Metcalf, J.

text:
    In re Estate of Copeland.
    (No. 471
    Decided December 28, 1943.)

      Messrs. Woolley & Rowland, for the exceptor.

      Mr. Harold J. Rose and Mr. John W. Bolin, for the administrator.
   Metcalf, J.

Thomas E. Copeland, a resident of Athens county, Ohio, died intestate on June 21, 1942, leaving $5,650 in currency in his safe-deposit box in the First National Bank of Amesville, Athens county, which was included in the inventory and appraisement of his estate. To that item Gusta Norris, his niece, filed exceptions in the Probate Court, claiming this currency by virtue of a contract with Copeland whereby Copeland, in consideration of services performed and to be performed, agreed she should have, own and use this money. The administrator denied that any contract existed between Copeland and exceptor.

The Probate Court found that a tenancy in common existed and divided the currency equally between the administrator and' exceptor. From this finding and judgment each party appealed to this court, both appeals now standing on questions of law.

Motions for a new trial were filed by both parties on January. 13, 1943, within three days from the delivery of the written opinion by the trial court to counsel’s respective' offices although the opinion was never filed in the trial court, was not journalized and does not appear in the record or among the papers.

On February 19, 1943, the trial court journalized its finding in the same entry with the judgment, and on this date the .respective parties refiled their motions for a new trial. All of the motions were overruled on this date. Between the delivery of the written memoranda of the court’s decision and the journalizing of the finding, the court, upon the request of counsel for exceptor, signed a separate finding of fact and law under date of February 10,1943. No reference is made to this separate finding, either on the docket or in the journal, other than on that date there appears in the transcript of docket entries, the notation, “statement of facts of exceptor filed.” Counsel for exceptor maintain that inasmuch as no motion for a new trial was filed by the administrator within the prescribed time from the signing of the separate finding of law and fact by the trial court, this court is precluded from considering this case on the weight of the evidence. It is clear that counsel for both parties were, out of abundant precaution, doing everything possible to protect their respective rights in the refiling of the motions for a new trial. They were trying to conform to the pronouncement in the case of In re Estate of Lowry, 140 Ohio St., 223, 42 N. E. (2d), 987, and apparently were of the belief, by reason of the established principle that the court speaks only through its journal, that in order to preserve their rights the motions should be refiled upon the journalization of the finding and decision of the trial court.

Appreciating the confusion that exists in Ohio surrounding the due filing of a motion for a new trial, especially in view of the Lowry case, supra, this court is not going to add further to the uncertainty by holding that a third motion for a new trial should have been filed upon the signing of the separate finding of fact and law which was not journalized. It is our considered opinion that in order for the finding of the court in an action at law without the intervention of a jury, to be equivalent of a verdict of a jury, it must meet the requirement of Section 11420-17, General Code, which among other things provides that the verdict and finding of a jury must be entered in the journal and filed with the clerk. The administrator having filed a motion for a new trial within the prescribed time of the entry journalizing the finding of the court, the same was duly filed.

The record discloses that Thomas E. Copeland had been an elderly bachelor living in the home of an acquaintance of the same status; and that as his health began to fail, exceptor who lived in the adjoining county visited him from one to three times a week over a period of several months and performed services such as looking after Copeland’s laundry, preparing food and keeping his bed and body clean. The evidence also shows that others of his next of kin visited Copeland and helped him to the extent the distance between their homes would permit. There was a friendly relationship existing between Copeland and all of them.

Decedent had no bank account. He kept his money in currency, in a safe-deposit box, paying rental therefor, but at all times concerned here left the key with the bank. On April 2, 1942, he requested the cashier of the bank to bring him the contents of his box which consisted of the currency in question. After some conversation he instructed the cashier to take the currency back to the box, the cashier giving the following receipt which was found among Copeland’s effects after his decease:

“April 2 - 1942.

“Received of Thomas Copeland five thousand six hundred fifty dollars for placing in safe deposit box No. 67 in First National Bank Amesville to be subject to withdrawal by Gusta Norris.

“F. L. Thomas cashier.”

The cashier added to the typewritten name of

“Thomas Copeland” on the loose-leaf record kept by the bank of its boxholders, by writing in ink the following notation, “or Gusta Norris or the survivor.” No withdrawal was made by either Copeland or exceptor and exceptor never visited the bank until a few hours before the funeral of Copeland when she came to inquire how the money was placed.

Mr. Thomas, the cashier, was called as a witness by exceptor and testified to the circumstances surround'ing his visit to Copeland with the currency and the return thereof to the safe-deposit box, the execution of the receipt and the notation on the record. His testimony was, in effect, that he inquired of Copeland what he intended to do with this currency; that he pointed out to Copeland the danger by way of fire or otherwise of having this much currency about him; that he might live a long time and need some of this money; and that Copeland stated that he was going to keep this currency on his person because he wanted no lawyers or court to get any of his money, that he was making out a list of how his money should go, that Gusta Norris, the exceptor here, was to divide it for him, and that if anything happened to the money it would happen to him because it would be right in his clothes.

As a result of their conversation Copeland decided to let Thomas take the currency back, with the statement, “if anything happened to him it was to be paid over to Gusta Norris.” Thomas further testified that Copeland did not instruct him to place the ink notation on the record referred to above, but that he did so because he “thought it would cover the case.”

Another witness testified that Copeland subsequently stated “he had sent the money back and he had fixed the money for Gusta Norris to draw.” Exceptor’s husband testified that Copeland said “he was going to fix this money and either give it to her (exceptor) or fix it so she could get it for the services done; what she was doing for him and what he expected her to do until his death”; and that at another time Copeland handed the receipt to her and said “I have fixed this paper which gives you the money * * * it is yours, sister, it gives it to you.”

The proffered testimony of exceptor, while not to the same transaction testified to by the cashier, is to the effect that Copeland was to ‘‘either get the money * * * for her or have it fixed * * * so that she could draw it at any time,” and that after the transaction' with the cashier Copeland gave her the receipt and said “she could take that to the bank and get the money at any time.” The exclusion of this testimony by the trial court was not prejudicial for it added nothing to the essential element of delivery.

As to the insufficiency of these statements of Cope-' land to prove delivery, see Atchley, Exr., v. Rimmer, 148 Tenn., 303, 323, 255 S. W., 366, 372, 30 A. L. R., 1481, 1491; and Reynolds v. Kenney, Admr., 87 N. H., 313, 179 A., 16, 18, 98 A. L. R., 751, 754, quoted from with approval in Bolles v. Toledo Trust Co., Exr., 132 Ohio St., 21, 4 N. E. (2d), 917.

Since it is strongly urged by counsel for exceptor that this case is governed by the decided cases in Ohio relative to joint bank accounts, with the attendant incident of survivorship, we should look to those cases to determine whether Copeland, by his contract with the bank, either vested Gusta Norris with a present interest in the currency sufficient for her to take as the survivor or whether by this contract he completed the gift of the currency to her.

In such class of cases the Supreme Court of Ohio has adopted the contract theory as distinguished from the gift or trust theory followed in many jurisdictions. This contract theory simply means that there is a joint-deposit contract in such form that the execution thereof by the depositor and the bank supplies the essentials of a completed gift. Or, as expressed in slightly different language, the delivery which must accompany an ordinary gift is rendered unnecessary by the contract by which the bank becomes obligated to both donor and donee. Annotation in 48 A. L. R., 206. A deposit in a bank account creates the relationship of debtor and creditor. The title to the money deposited passes from the depositor to the bank. The depositor loses control and dominion over the money deposited and the bank becomes a debtor to the depositor in the amount of the deposit. The depositor is then in a position to so contract with the bank that a third party is vested with a present interest in the debt that will, if unrevoked, survive the death of the depositor.

One of the first decisions of the Supreme Court of Ohio under the contract theory is the case of Cleveland Trust Co. v. Scobie, Admr., 114 Ohio St., 241, 151 N. E., 373, 48 A. L. R., 182, wherein this pertinent language is used on page 247:

“In this kind of deposit the title to the money deposited passes to the bank from the depositor. The depositor is not entitled to have the identical thing deposited returned to him, but the bank becomes the depositor’s debtor in the amount of the deposit.”

This same principle runs through all the Supreme Court cases of Ohio where the contract theory is pronounced. Attention is called to the case of In re Estate of Hutchison, 120 Ohio St., 542, 166 N. E., 687. There it was the contract by and between the creditors on the one side and the debtor, the corporation, on the other. Again in the case of Oleff, Admr., v. Hodapp, Gdn., 129 Ohio St., 432, 195 N. E., 838, 98 A. L. R., 764, the relationship of debtor and creditor existed be-, tween the depositor and the building and loan association. The same is true in the case of Sage, Exr., v. Flueck, 132 Ohio St., 377, 7 N. E. (2d), 802. In that case, where a bank instead of a building and loan association was involved, the court had this to say on page 380: “Upon acceptance of the deposit, title to the money as specie passed * * * to the bank * * * the bank became their debtor, and they, in turn, became the bank’s creditors to the extent of the amount of the deposit.” The same relationship of debtor and creditor existed in the case of In re Estate of Fulk, 136 Ohio St., 233, 24 N. E. (2d), 1020. In Berberick v. Courtade, 137 Ohio St., 297, 28 N. E. (2d), 636, the court held that it was the contract pertaining to the deposit with the financial institution that governed the property passing by this contract and not any deed of gift.

The latest pronouncement affecting contracts that permit the survivor to take the joint deposit is the case of Rhorbacker, Exr., v. Citizens Building Assn. Co., 138 Ohio St., 273, 34 N. E. (2d), 751, 135 A. L. R., 988. The syllabus in that case is premised upon the relationship of creditor and debtor existing between a depositor and a financial institution. The court says on page 275, “here, the relationship of creditor and debtor existed between * * * [the depositor] and The Citizens Building Association Company.” In referring to the contract between the depositor and the survivor the court said that such participation is not always required. In other words, the court definitely held that it was the contract between the depositor, the creditor, and the banking institution, the debtor, that controlled.

The relationship between Copeland and the First National Bank of Amesville was not that of debtor and creditor. Copeland was at all times entitled to ' have the identical currency placed in the safe-deposit box returned to him. The bank in no way took title to the money as would have been the case had the money been deposited in an account. Therefore it was not possible for Copeland by contract with the bank, in the manner attempted, to complete any transfer he intended to make of the currency, effective after his death, to Gusta Norris, regardless of whether she was to have it, as she claims, outright, or was to distribute it, as testified by the cashier, in lieu of administration.

It is said in 5 Ohio Jurisprudence, 376, Section 83, in discussing safe-deposit boxes or vaults provided by a bank to be used by its patrons, that the bank “has no control over the contents of its vaults, and is not concerned with contracts made by its patrons with respect to the contents of the vaults, whether made before or after the deposit. The relation between it and its patrons is that of landlord and tenant and the tenant may do with the contents of the box as he pleases.”

In 6 American Jurisprudence, 479, Section 407, the relationship of the parties is defined as follows:

' “It appears generally to be well settled that where a safe-deposit company leases a safe-deposit box or safe and the lessee takes possession of the box or safe and places therein his securities or other valuables, the relation of bailee and bailor is created between- the parties to the transaction as to such securities or other valuables * *

In Carples v. Cumberland Coal & Iron Co., 240 N. Y., 187, 148 N. E., 185, 39 A. L. R., 1211, in discussing this relationship it was pointed out that while the status of the safe-deposit company is in some respects that of bailee, it is, in others, not much different than that of landlord.

Many jurisdictions designate the relationship as that of landlord and tenant, others as bailee and bailor, but in no jurisdiction do we find any cases fixing the relationship as debtor and creditor. Permitting the keys to, the box to remain with the bank was for the convenience of Copeland and may have had some bearing on the degree of care to be exercised by the bank but did not make it a debtor to Copeland. Neither does the fact that the contents of the box was currency change this relationship.

This case does not come within that class -of cases wherein the survivor is permitted to take by reason of a contract of deposit. Here decedent placed his own money in his own safe-deposit box and arranged only that his niece should have the right to make withdrawals. This right terminated upon the death of Copeland. Bender v. Cleveland Trust Co., 123 Ohio St., 588, 176 N. E., 452. Neither does the record divulge compliance with the procedure and requirements which the law says are essential to the completion of a valid gift inter vivos. Bolles v. Toledo Trust Co., Exr., supra.

The judgment of the Probate Court must be reversed and judgment rendered for the administrator.

Judgment reversed.

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