author: Jones (Oliver B.), J.

text:
    OMISSIONS IN EXECUTION OF A WILL WHICH RENDERED IT INVALID.
    Court of Appeals for Hamilton. County.
    Koch et al v. Meyers et al.
    Decided, April 24, 1916.

      Wills■ — ■Failure to Properly Execute and Acknowledge — Undue Influence Generally Shown hy Circumstantial Evidence.

    1. Where, in an action 'to contest a will, it is evident from the testimony that the will was not read either to or by the testator, that it was not acknowledged by him, and that he had no knowledge of what it contained, it can not be said that such will was executed by the testator in such a manner as to comply with the requirements of Section 10&05, General Code; and the verdict of a jury sustaining such will is not sustained by the evidence and will be set aside.
    2. In an action to contest a will,, issues relating to undue influence are generally determined upon circumstantial evidence, and inferences drawn from a full presentation of facts which are inconclusive when taken separately, and a wide range of inquiry is therefore permitted to bring before the jury facts and influences bearing upon the preparation of the will.

      Cobb, Howard & Bailey and Henry L. Bochel, for plaintiffs in error.

      Cogan, Williams & Ragland, contra.
   Jones (Oliver B.), J.

Tbe action below was brought to contest tbe will of Fred Mauntel, deceased, and resulted in a verdict and judgment sustaining the will.

The decedent was a man fifty-four years of age. The cause of his death was diabetes, and he suffered from a carbuncle on the back of his neck which might bp considered as ¿a contributing cause of his death. His acknowledged sickness was of about two weeks duration, and he was under treatment by a physician for a period of only one week.

The .evidence in regard to his mental condition during the last three or four days of his illness is quite conflicting. He died on Monday, about 7 p. m., having been in a' coma for several hours before his death. The will in question was signed on Sunday, the day b.efore, after 11 a. m. There is evidence that he had periods of stupor and delirium, at intervals, during at least two days prior to the day on which the will was signed.

The testimony of the attorney who drew the will and acted •as one of the two witnesses is to the effect that when he went in response to a message to the home of testator for the purpose of drawing his will, he found him seated in a morris chair in the dining room, and after speaking to him, and being told that h,e desired a will drawn, he, the attorney, proceeded to draw the first part of the will, including the first item providing for the payment of debts, and then asked the testator but two questions: (1) “Whom do you want to leave your property to?” and (2) “Who do you want for your executor?” The answ;er to the first question was: “I want to leave it to Sophia Meyers. She is the best friend I ever had. ’ ’ The answer to the second was: “Make Dr. Sauer executor.” Nothing was said as to any other relatives; nothing-.else as to his property or the terms of the will. The testimony of this witness as given in chief and on cross-examination is quite contradictory in regard to the execution of the will, but in th,e end he is positive that the will as written was not read to testator; but that after it was written it was handed by the attorney to the testator to read and sign, and that “he took it and scrutinized it before he signed it, and then signed his name to it.” On being questioned further, the witness said that testator “scrutinized it,” “just a second or two,” and it is evident from his testimony that the will was not read either to or by the testator, that it was not acknowledged by him, and that he had no knowledge of what it contained.

A careful consideration of all the evidence as to the execution of the will convinces all the members of this court that this will was not executed or acknowledged to be his will by the testator in siich a matter as to comply with the requirements of Section 10505, General Code, and that it did not become a valid will under the law as laid down in the case of Keyl et al v. Feuchter et al, 56 Ohio St., 424, and Tims v. Tims et al, 14 C.C. (N.S.), 273. The verdict of the jury therefore in that respect is not sustained by the evidence.

Issues relating to undue influence are generally determined upon circumstantial evidence and inferences drawn from a full presentation of facts which are inconclusive when taken separately. A wide range of inquiry is therefore permitted to bring before the jury facts and influences bearing upon the preparation of the will. Schouler on Wills (5th Ed.), Section 242.

Two members of this court ar,e of the opinion that the trial court erred in withdrawing from the consideration of the jury the question of undue influence. In their opinion sufficient facts were shown by the evidence to justify and require the submission to the jury of the question of undue influence, under the rule,as recognized in Wilder v. Taylor et al, Exrs., 87 Ohio St., 520. To this proposition Judge Gorman dissents.

For the reasons stated, the judgment below is reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Jones (E. IT.), J., and Gorman, J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    CONTRACTS OF EMPLOYMENT BASED ON SATISFACTION BEING GIVEN THE EMPLOYER.
    Court of Appeals for Hamilton County.
    Frank B. Stewart, Trustee, v. Frank J. Rutterer.

    Decided, December 20, 1915.

      Employer and Employee — Construction of a Stipulation that the Work is to be Done to the Satisfaction of the Employer — Judgment of the Employer Controls, and Not that of “Reasonable Men.”

    Where a contract of employment provides that the work shall be done to the satisfaction of the employer, he is at liberty, acting in good faith, to discharge the employee without regard to the question whether the discharge would appeal to reasonable men as justified. Highland Buggy Co. v. Parker, 5 C.C.(N.S.), 383, and Railway Co. v. Tierney, 8 C.C.(N.S.), 521, affirmed without report, not followed.

      Stephens, Lincoln & Stephens, for plaintiff in error.

      Dolle, Taylor, O’Donnéll (& Geisler, contra.

      Reversing Rutterer v. Stewart, 17 N.P.(N.S.), 173.

   Gorman, J.

The defendant in error, Frank J. Rutterer, sought to recover damages for a breach of contract entered into between himself and the plaintiff in error as trustee. A verdict was rendered in his favor, and the defendant below, plaintiff in error here, prosecutes error to reverse the judgment.

The action grew out of an agreement between the parties here-. to, made January 21, 1911, which in substance recited that Rutterer was indebted to the Standard Hay & Grain Company and the Winifrede Coal Company in the aggregate sum of about twelve thousand dollars and that he was unable to pay said indebtedness ; and in consideration of the forbearance of the creditors to bring suit to collect their claims he transferred all of his property to Frank B. Stewart, as trustee, for the purposes set out in the agreement, which were to continue and manage the business in which Rutterer was engaged, the feed and coal business, and to see if the debts of said business could be paid from the proceeds. Stewart was in the exclusive 'power to manage the business in such manner as he might see fit. It was further provided that in case it developed that the business was being continued at a loss, the trustee was authorized to sell all of the property, collect the accounts, convert the assets into money, and pay Rutterer’s debts. There was also the following stipulation in the agreement:

“The party of the second part (S’tewart) will employ the party of the first part (Rutterer) in connection with said business in any capacity except as common laborer, at a salary of $15 per week so long as his services are satisfactory.”

Upon the execution of the agreement Stewart took charge of Rutterer’s business, employing Rutterer as manager, and he continued in such capacity for several months until on or about April 10, 1911, when Stewart wrote to Rutterer that he was not satisfied with his manner of conducting the business and had decided to employ one Zimmer as manager and give him full charge of the business. Mir. Rutterer was continued as a collector on the same wages until July 8, 1911, when he was discharged by Stewart.

The foregoing is a sufficient statement of the facts upon which the plaintiff bottomed his right to recover.

The sole question in the case to be determined by this court is, whether or not the trial court erred in refusing to give certain special charges, and erred in his general charge to the jury upon the question of the construction to be given to the contract providing for the employment of Rutterer “so long as his services are satisfactory.”

The bill of exceptions is in the short narrative form and does not purport to contain all of the evidence, but' there ig sufficient in the bill to raise the questions of law upon which the rulings of this court are asked. Rutterer claimed that he was discharged without reason and arbitrarily, and the jury, under the charge, held with Rutterer.

In substance the following charge, in two or three different forms, was asked by the defendant to be given to the jury before argument:

“By the contract between them, the defendant agreed to employ the plaintiff only so long as his services were satisfactory to defendant, and if the defendant was not satisfied with such services in good faith, after a fair trial, tlien your verdict should be for the defendant.”

The court refused to give this charge, to which refusal counsel for defendant excepted.

The court in its general charge to the jury used the following language:

“The question, therefore, to be determined is, what is meant by the phrase in the contract ‘so long as his services are satisfactory.’ The law in that matter is this: a person who enters into a contract of employment, -which is to continue as long as it is satisfactory, can hold his position only so long as the party to whose satisfaction he is to work is satisfied, and that satisfaction, or rather the dissatisfaction of the party for whom he is to work, and in this case for Stewart, must be dissatisfaction which would warrant Stewart in terminating the contract. This dissatisfaction can not depend upon a whim or a mere caprice, or be arbitrary on- the part of Stewart, but it must depend upon such facts as would warrant a reasonable person in the samje position that S'tewart was, under the same conditions and circumstances, in coming to the conclusion that the services of Rutterer were not satisfactory.
“Now that, gentlemen, is the test; would a reasonable person placed in the same position that Stewart was placed have come to the conclusion that Rutterer’s conduct, the work he was doing .and the manner in which he was doing it, and all the surrounding circumstances of his employment, would such a person have come to the conclusion that his work was not satisfactory ? If a reasonable person situated as Stewart was situated -would have come to that conclusion, then 'Stewart was justified in discharging Rutterer. If a reasonable person wmuld not have come to that conclusion upon all the facts that have been produced in evidence here before you, then he would not have been justified, and the plaintiff would be entitled to a verdict.”

Counsel for the defendant took a general exception to the charge of the court.

In refusing to give the special charge above set out, we think the court erred.

"We are also of the opinion that the court erred in the language employed in the general charge wherein the court said:

“This dissatisfaction can not depend upon a whim or a mere caprice, or be arbitrary on the part of Stewart, but it must depend upon such facts as would warrant a reasonable person in the sarnie position that S’tewart was, under the same condition and circumstances, in coming to the conclusion that the services of Rutterer were not satisfactory.”

And again:

“Now that, gentlemen, is the test: would a reasonable person placed in the same position that Stewart was. placed have come to the conclusion that Rutterer’s conduct, the work he was doing and the manner in which he was doing it, and all the surrounding circumstances of his employment, would such a person have come to the conclusion that his work was not satisfactory ? If a reasonable person situated as Stewart was situated would have come to that conclusion, then Stewart was justified in discharging Rutterer. If a reasonable person would not have come to that conclusion upon all the facts that have been produced in evidence here before you, then he would not have been justified, and the plaintiff would be entitled to a verdict.”

It appears from this that the trial court read into the contract a rule of reason. And the trial court justifies the language employed in this general charge and the refusal to give the special charge, as shown by the opinion in 17 N.P.(N.S.), 173, upon the authority of two cases, Highland Buggy Co. v. Parker, 5 C.C.(N.S.), 383, and Lake Shore & Western Railway Co. v. Tierney, 8 C.C.(N.S.), 521, affirmed without report 75 O. S., 565.

The case of Highland Buggy Co. v. Parker, decided by the predecessor of this court, was an action to recover damages for the wrongful discharge of an agent of the company. In deciding the case the court, on page 385, uses this language, with reference to the contract of Parker:

“Tbe dissatisfaction which would warrant the 'company in terminating the contract could not depend upon mere whim or caprice, but upon such facts as would warrant a reasonable person in the conclusion that the services of the salesman were not promoting, either directly or indirectly, the interests of his employer, provided always that the latter acted in good faith and performed his part of the contract. ’ ’

The contract under consideration in that case contained a provision, among other things, that Parker would give his entire time and attention to selling vehicles of the Highland Buggy Company at prices furnished him from time to time, and would promote the interests of the Highland Buggy Company, all to its satisfaction.

The case of Lake Shore & Western Railway Co. v. Tierney, 8 C.C.(N.S.), 521, was a ease in which William Tierney had been an employee of the railway company, had received injuries and brought suit-to recover for same. While that ease was pending he entered into a compromise agreement in writing with the railway company whereby the railroad company, among other things, agreed to employ Tierney in consideration for Tierney’s dismissing his action, and that said company was to employ him so long as his services were satisfactory. The company discharged him, and he brought an action to recover damages for the wrongful discharge. The Circuit Court of Allen County, passing upon the case was called upon to determine the correctness of a charge asked to be given to the jury on behalf of the company and held as follows:

‘ ‘ The court was asked to charge the jury that the company was to be the sole judge of the services rendered, and, if in good faith it decided that his services were unsatisfactory it had the right to discharge the plaintiff at any time. ’ ’

The court said:

■ “This does not fairly state the ease. The defendant may have been dissatisfied and may have thought that it had reason for dissatisfaction, and may have acted in good faith and so discharged plaintiff, and yet it may have been requiring unreasonable things; it may have been misinformed as to his conduct and so may have become, dissatisfied without good cause, yet in perfect good faith. This contract should not be construed from one side alone, and the court properly refused to do so in this respect. Each party had his rights and obligations. The obligations as well as rights of each must be considered. The charge as requested did not in our judgment meet this test.”

The trial court in case at bar also relied upon the statement contained in the decision of the Supreme Court in Ashley v. Hanahan, 56 O. S., 559, at page 570, where this language was employed :

“He (plaintiff) might, however, as suggested above, on an averment supported by evidence that the architect had fraudulently or unreasonably refused his certificate, recover by showing a substantial performance of the work as required by the contract.” * * *

There are other cases in this state which hold directly opposite to the rule laid down in the two circuit court decisions above cited.

In the case of Crigler v. Blair, 4 C. C., 324, the circuit court, the predecessor of this court, speaking through Cox, Swing and Smith, held that where there was to be an exchange of property provided “a satisfactory title and abstract be furnished,” the person to whom such title and abstract was to be furnished was the sole judge'of the satisfactory character of the same.

In the case of Karsner v. Union Central Life Insurance Company, 12 C. C., 394, where the decision was by the same court that decided the Tierney case, it was held:

“Where the contract between an insurance company and one of its general agents for a fixed period of years provides, ‘That whenever the amount of new business done by the agent is, in the opinion of its officers, unremunerative; or, when the business of the company is not conducted in a manner satisfactory to the officers, they may cancel the contract’ ® * *, it is for the officers alone to decide, if acting in good faith, when the condition arises for such cancellation.”

The General Term of the Superior Court of Cincinnati in Elsas v. Meyer, 21 Bull., 346, held that the question of the reasonableness of the employer’s dissatisfaction was not involved in the ease, but only the question as to whether or not he acted in good faith in the discharge.

The district court of this county, predecessor of the circuit court, in the ease of Sargent v. Sibley, 11 Bull., 177, decided in an opinion by Avery, J., that where a contract for the sale of real 'estate provided that the title was to be satisfactory to the purchaser’s attorney, the opinion of such attorney was conclusive. The court say:

“As a general rule, where it is stipulated in a contract that what is to be done by one party shall be to the satisfaction of tiie other or of a third person, the decision of such other party' or person is final. ’ ’

There have been a great number of cases in other jurisdictions upon this question, but the rule seems to be well laid down in Labatt’s Master and Servant, 2d Ed., Section 198, pages 618-619:

‘! In one group the facts, that the performance of the contracts in question involved the gratification of the employer’s personal taste, is adverted to in terms which show more or less distinctly that this element was specifically treated as being the determinative element. But the courts did not use any language from which it can reasonably be inferred that they considered his judgment to be final only in cases where the contract is of this description. ’ ’

In Section 199, page 630:

“The position taken in Ohio is that the dissatisfaction which will warrant a discharge must be a reasonable dissatisfaction, and not an arbitrary one, and that the good faith of the master in claiming the given services to be' unsatisfactory will n@t render a discharge justifiable, if the services performed were such as ought to have been satisfactory to a reasonable employer.” (Citing 8 C.C.[N.S.], 521.) This decision is obvviously opposed to the general current of authority. ’ ’

We are of the opinion that this rule laid down in the Tierney case (8 C.C.[N.S.], 521), is clearly against the great weight of authority, and we are not disposed to follow the ruling in that case, nor the rule laid down in the Parker case, supra. We hold that where the contract provides, as did the one in the case at bar, that the work is to be done to the satisfaction of the employer, the employer has the right to discharge the employee, provided he acts in good faith, whether or not the cause for the discharge is such as would appeal to a reasonable man. If any effect is to be given to the provision of 'the contract which requires the employer or employee to be satisfied, it would appear that the one to be satisfied is the one to determine whether or not he is satisfied, and not the court or jury. The parties having made their contract, it is not the province of the court to unmake it or to make a different contract by construing it to read that “satisfaction” or “dissatisfaction” should mean the “satisfaction, or dissatisfaction, of a reasonable person. ’ ’

We- think the law of Ohio upon this question should be in harmony with the law laid down in the great majority of the state and federal courts. We might cite numerous authorities to support the conclusion at which we have arrived, but we deem it unnecessary. The authorities will all be found collected in the notes under Sections 198-199, Labatt’s Master & Servant, 2nd Ed., Vol. I.

• For the reasons given, the judgment of the court of common pleas will be reversed, and the cause remanded for a new trial.

Jones (E. IT.), J., and Jones (Oliver B.), J., concur.


author: Powell, J.

text:
    A LAPSED LEGACY.
    Court of Appeals for Licking County.
    Willis A. Robbins et al, Administrators, v. David H. Pigg et al.

    Decided, March Term, 1918.

      Wills — Widow Not an Heir Per Stirpes of Her Deceased Husband— Legacy Left to Him Held to have Lapsed — Section 10581.
    Under a bequest to four legatees named in the will of a testator “or their heirs per stirpes, each the sum of $1,100 absolutely” the widow of one of the legatees, whose death without issue surviving, preceded the death of the testator, does not take as the heir-at-law of the deceased legatee, neither do the three surviving brothers take said legacy by reason of their relationship to said deceased legatee, but the said legacy lapses under the general law relative to wills and becomes the property of the residuary legatee.

      Kibler <& Kibler, for .plaintiffs.

      Fitzgibbon, Montgomery & Mach and Norpell <& Norpell, contra.

       Affirming Bobbins et al, Admrs., v. Pigg et al, 21 N.P.(N.S.), —.

   Powell, J.

This action is in this court by appeal from the judgment of the court of common pleas of this county. It was brought in that court by the plaintiffs, who are administrators with the will annexed of the estate of one Sidney Smith, deceased, asking the direction of the court relative to the discharge of their duties as such administrators, and is brought under the special provisions of Section 10857 of the General Code. The facts on which the question in controversy arises are as follows:

Sidney Smith, the testator, died testate on the 9th of September, 1916. His will had been executed on the 26th day of May, 1900. He died without issue, his wife having died several years before his death. In the third item of his will he provided as follows:

“Item 3. I give and bequeath to Charles A. Pigg, William Pigg, Geo. T. Pigg and David H. Pigg, or their heirs, per stirpes, each the sum of $1,100 absolutely, which said amount I received from my wife by inheritance, she having been a sister of the legatees mentioned in this item.”

William Pigg, one of the legatees mentioned in said item, died on the 30th of April, 1916, intestate, and without issue, leaving the defendant, Dora Pigg, his widow, who was his sole heir at law. Dora Pigg claims as such heir that the $1,100 legacy, given to her deceased husband by the will of said testator, should be paid to her. The defendants, David H. Pigg, Charles A. Pigg and Geo. T. Pigg, who are named in said Item 3 and who .each received the legacy of $1,100 therein given to them, claim that by the terms of said will they are entitled to the said legacy. Ella Smith, who is the residuary legatee of the said testator, by virtue of Item 7 of the will, also claims to be entitled to receive said legacy.

The plaintiffs in this action ask the direction of the court as to who is entitled to the same. Said Item 3 gives to the four legatees named therein the sum of $1,100 each absolutely. The legacy given to William Pigg by said Item 3 lapses and becomes a part of the residuum of the estate of said testator, unless the will itself otherwise provides. Dora Pigg claims to be the heir at law of said William Pigg, and that a proper eonstruction of- said Item 3 would give the same to her as such heir at law. This court is of opinion otherwise. While she is the heir at law of William Pigg, she is not entitled to a legacy given to him, but which never came into his possession, by reason of his. death having occurred before the death of the testator. There is nothing in said item which indicates that the said testator desired that William’s widow should receive the legacy given by him to William. The language of said item applicable to the legacy of William Pigg is as follows: “I give and bequeath to William Pigg, or his heirs, per stirpes, the sum of $1,100 absolutely.” Dora Pigg is not an heir per stirpes of William Pigg. She is his heir at law by virtue of the statute, and by reason of having survived him without leaving issue. If she is entitled in any way to this legaqy, it is because the language of the will itself makes her a legatee under the will of said testator, and there is nothing in the will which indicates that the testator intended to give this legacy to her in the event that William Pigg should die before the death' of the testator. In other words, she is not his legatee; neither is she entitled to receive said legacy as the general heir at law of William Pigg; neither is she entitled to said legacy as being heir per stirpes of William Pigg.

It is further claimed that the surviving brothers of William Pigg, named in said Item 3, are entitled to said legacy, because by the terms of the will it is shown to be the intention of the .testator that the amount of money received by him from his wife as an inheritance should be repaid to her brothers out of his estate. We do not subscribe to this view. The testator executed two codicils to his will, and it is recited in each of them that in his lifetime he paid the legacy given by said will to David PI. Pigg “in full of said legacy, the same having been paid in advance to him”; and further, that so much of said will as gave a legacy to said David II. Pigg is canceled, and the legacy itself is declared adempted or satisfied. In the second codicil he again recites that ho had paid to David H. Pigg the sum $1,100] provided to be paid to him by said Item 3; and further he says, ‘ ‘ I hereby cancel and annul the part of said Item 3 which provides for the payment of that amount to him.” PPe further adds, as a part of said codicil, that his original will, as modified by said codicil, is now his last will and testament. We think from this circumstance that the said testator did not intend to give the specified sum of $4,400 to the brothers of his deceased wife,’ but that he meant simply what he said: That he gave to them each the sum of $1,100. There is nothing in this will that shows any intention in the mind of the testator to give said total sum to the brothers of his wife as a class; and, in fact if such a construction should be placed upon the will it would be in conflict with the other provisions of said codicils, as above quoted.

It is the settled law of Ohio that a legacy given to a legatee who is either dead at the time of making the will or dies thereafter, before the death of the testator, lapses and becomes a part of the residuum of his estate; or if this is not true, that the testator dies intestate as to such legacy. There is a provision of the statutes which seeks to prevent the lapsing of legacies in certain contingencies. I refer to Section 10581 of the General Code. But none of the conditions prescribed by this section of the statutes is applicable to the provisions of this will. In the first place, Dora Pigg, the widow of William Pigg, is not the issue of William Pigg, as provided in said section. Neither is she of any degree of relationship to the said testator. So that, as far as she is concerned, there is nothing which prevents the lapsing of the legacy. Neither does it descend to the three brothers living for the same reason. There is nothing which-appears in said will which shows an intention-to give the same, or any part thereof, to said legatees.

So there is nothing in the relationship of the parties which prevents the legacy from lapsing. (Schaeffer v. Bernhardt, 76 O. S., 443.) There being no special rule applying to the claims of any of said parties, the legacy lapses under the general law relative to wills, and according to the terms and provisions of Item 2 of said will, the same becomes the property of the residuary legatee, Ella Shiith.

A decree may be drawn in her favor in accordance with the opinion herein- expressed.

Houck, J., and Shields, J., concur.


text:
    POWER TO CONVEY PROPERTY BEQUEATHED TO CHILDREN FOR LIFE.
    Court of Appeals for Richland County.
    Layer v. Kreiter et al.*
    Decided, January 29, 1917.

      'Wills — Life Estate Created in Sons — With an Estate in.Fee Simple in Grandchildren — Invalidity of Conveyance by Grandson Before Title Sad Accrued in Sim.

    Where a will creates an estate for life in certain real estate in relator’s two. sons in equal shares, an estate for life in the survivor of said two sons in the whole of said real estate, and at the death of such survivor an estate in fee simple in equal shares to the heirs of the body of each of said sons, and further provides that if, at the death of such survivor, the heirs of the 'body of either are deceased, the whole estate shall pass to the. heirs of the body of either then surviving, no estate passes to the children of said two sons of the testator until the death of the survivor, and a deed by one of said children made prior to the death of the survivor of testator’s two sons passes no title to such real estate.
    Heard on appeal.
    Philip Laver, a formfer resident of Richland county, died testate on the — day of November, 1898/ seized of certain real estate in the petition described. He was survived by two sons, Philip J. Laver and George M. Laver, who were his next of kin and heirs at law. Philip J. Laver died in 1908, leaving the plaintiff, Edith Laver, his only child and sole heir at law, and George M. Laver died on November 5, 1915, leaving the defendant Harold A. Laver, his only child and heir at law.
    The action is in partition. The parties are the plaintiff, the defendant Harold A. Laver, and other defendants claiming title or right to the undivided half of said premises, or the proceeds of the same, through conveyances from said Harold A. Laver. The rights of the parties are based on the will of Philip Laver and the deed of said Harold A.' Laver, of date December 2, 1912.

      There is no question as to the rights of the plaintiff, Edith Laver, it being conceded that she is entitled, on distribution, to one-half of the proceeds of sale of said premises.
    All the questions presented for adjudication are raised on the construction of items two and three of the will of Philip Laver. Said items are as follows:
    “Item 2. I will and devise to my two sons, George M. Laver and Philip J. Laver, the equal use and enjoyment of the rents and profits of my real estate during their natural lives, or during the natural life of the surviving one of them, in case'of death and at the decease of the surviving one of them, to descend as hereinafter designated in item three.
    “Item 3. At the decease of my said two sons George Mi Laver and Philip J. Laver, or the surviving one of them, I will and devise my real estate in item two referred to, to the heirs of the body of my said sons, namely, the children of my said son George M. Laver, the share to which he would be entitled, and to the children of my said son Philip J. Laver, the share to which he would be entitled, if living, and if at the decease of the surviving one of my said sons, George M?. and Philip Laver, the heirs oE the body of either shall have deceased, then I devise to the heirs of either so surviving, their heirs or assigns, said real estate in fee simple.”
    It is contended on the part of Harold A. Laver that at the time he made his quit-claim deed to the defendant, Martin Kreiter, he had no interest in said real estate that he could alienate, his father being still alive; while it is contended on the part of Martin Kreiter, and those claiming under him, that Harold A. Laver was then vested with a fee simple title to the half of said real estate, subject, however, to defeasance in the event of his death before the death of his father, George M. Laver.

      H. T. Manner and G. H. Workman, for plaintiff.

      Van G. Gooh, G. TS. McBride and W. H. Gifford, contra.
   Powell, J.

The facts out of which the controversy in this ease arises, and the controversy itself, are clearly presented in the above statement of facts, and, while there are other issues presented by the pleadings, they are subordinate to the question of the right and authority of Harold A. Laver to sell and convey the said real estate at the time he attempted to convey the same to Martin Kreiter. Items two and three of the will of Philip Laver create the following estates in said lands:

1. An estate for life in testator’s two sons, George M. and Philip J. Laver, in equal shares.

2. An estate for life in the survivor of said two sons, George M. and Philip J. Laver, in the whole of said real estate.

3. At the death of such survivor an estate in fee simple to the heirs of the bodies of said George M. and Philip J. Laver, in equal shares to the heirs of the body of each of said sons.

4. If, at the death of such survivor, the heirs of the body of either are all deceased, the whole estate is given to the heirs of the body of either then surviving.

It will be noticed that the fee simple title from testator’s death until the death of his surviving son is not vested anywhere, by the terms of the will. It therefore descended by operation of law to the heirs at law of the testator, viz., George M. and Philip J. Laver. It could not pass to Editli Laver or Harold 'A. Laver, as they were not heirs at law of the testator. It could only pass to them by the terms of the will itself. It did not so pass because the will fixes the death of the survivor of testator’s two sons as the date when the fee simple title should pass, and then not to Edith and Harold A. Laver, individually, but to the heirs of the bodies of George M. and Philip J. Laver, as a class. Edith and Harold A. meet the requirements 'of the will as to the class that should take said estate at the date fixed, viz., at the death of George M. Laver, which occurred on the 5th day of November, 1915.

Harold’s deed to Martin Kreiter was made December 2, 1912, nearly three years before any title whatever accrued to him under the will of Philip Laver.

We are of the opinion that the deed of Harold A. Laver to the defendant Mlartin Kreiter did not convey to the grantee named in said deed any right or title to the real estate in controversy.

The estates created by the will of Philip Laver are in legal effect entailed estates, giving to the first takers an estate for life only, and to the issue of the first takers, or to the heirs of their bodies, an estate in fee simple.

A rule of construction for such cases is laid down in the cases of Dugan v. Kline et al, 81 Ohio St., 371; Dart v. Dart, 7 Conn., 250, and Carter v. Grossnickle, 11 N.P.(N.S.), 465, affirmed without opinion, 88 Ohio St., 577.

Under these authorities Harold A. Laver had no interest in said lands that he _ could alienate. Neither is anything pleaded or shown by the testimony that would operate as an estoppel against him.

Kreiter having paid certain money for the benefit of Harold A. Laver, he ought, in equity, to have the same repaid to him, and this would be so ordered. The same decree may 'be entered in this court as was entered in the court of common pleas.

Judgment rendered in favor of defendant Harold A. Laver and against all other defendants, excepting as to the money ordered repaid to Martin Kreiter.

PIouck, J., and Shields, J., concur.


author: Jones, J.

text:
    CHILD OF DECEASED CHILD WITHOUT INTEREST IN A POLICY OF LIFE INSURANCE.
    Court of Appeals for Hamilton County.
    William Lucking, an Infant, by Emma Lucking, His Guardian and Next Friend, et al v. The Mutual Benefit Life Insurance Company et al.

    Decided, February 4, 1918.

      Life Insurance — Provision for Payment of Proceeds to Children Strictly Construed — No Interest Passes to the Children of a Deceased Child, When.

    Grandchildren have no interest in a policy of insurance made payable to their grandmother, or in case of her death before that of the insured then to her children, where the death of the parent through whom they claim preceded that of their mother.

      Matthews & Klein, John_ A. Scanlon, Chas. M. Leslie and Clarence M. Smith, for plaintiff in error.

      Vorys, Sater, Seymour Pease, Wilbur K. Benoy, A. C. -Gallagher, John K. Kennedy and Clarence M. Smith, contra.

       Affirming Lucking et al v. Life Insurance Co., 21 N.P.(N.S.),-.

   Jones, J.

A policy of life insurance for $5,000 was issued by the defendant company December 3, 1880|, upon the life of Joseph Lucking, payable within ninety days after due notice and satisfactory proof of his death to his wife, Elizabeth Lucking, or in case she should die before the decease of her husband then the amount of said insurance should be payable to their children or their guardian.

Elizabeth Lucking died December 6, 1913.

Elizabeth and Joseph Lucking had in all five children as follows: Alexander and Gertrude 0., who died in infancy without issue, on June 30, 1876, and March 31, 1882, respectively; Leo Lucking, who is still living; Joseph Lucking, Jr., who died February 24, 1914, without issue, leaving a widow, Barbara Lucking; Lawrence Lucking, who died July 11, 1912, leaving three children, one of whom, Homer, died July 16, 1914, and the other two, AVilliam Lucking and DeAVitt H. Lucking, are still living.

Plaintiffs allege that on November 27, 1914, in violation of their rights in said policy of insurance, it was canceled and annulled by the said defendant company upon the written release of the insured Joseph Lucking and his son Leo Lucking, said company then paying to them the sum of $2,666.75 in cash as consideration for the release and delivering up of said policy of insurance.

AVilliam Lucking and DeAVitt H. Lucking, infants, by their next friend, and Barbara Lucking, are the plaintiffs; and cross-petitions were filed by the administrators of Joseph Lucking, Jr., Lawrence Lucking, Alexander Lucking and Gertrude C. Lucking. The petition and all of said cross-petitions allege that all of the conditions of the policy of insurance had been performed upon their part at that'time, and that they have been damaged by the action of said defeiidant company in cancelling and annulling said policy of insurance, said parties claiming that they should have participated in the surrender value thereof which instead was improperly paid in full to said Joseph Lucking and Leo Lucking.

Demurrers were filed by the defendant, to plaintiffs’ petition and to the several cross-petitions, and upon argument said demurrers were each sustained and final judgment was entered below in favor of the defendant. Plaintiffs in error seek reversal of that judgment.

Exhaustive and elaborate arguments have been made as to the question of the respective interests of the parties in this policy and the vested rights that accrue to a beneficiary of such an insurance policy.

The case was decided upon the technical wording of the policy, that Elizabeth Lucking being dead and Leo Lucking being the only surviving child at the time of the surrender he was the only beneficiary then interested in the policy.

So far as the administrator of Alexander Lucking is concerned there is no question but that he had no interest at anytime in said policy because it was issued several years after his death.

Gertrude C. Lucking also, who died before her mother, could in no way participate in said policy.

So far as the claim of the administrator of Joseph Lucking, Jr.,' is concerned, the case of Ryan v. Rothweiler, 50 O. S., 595, is conclusive, and no interest can be allowed on his behalf.

The claims that are not disposed of by Ryan v. Rothweiler are those made on behalf of the children of'Lawrence Lucking, who survived their grandmother, Elizabeth Lucking, and are still living, namely, "William Lucking and DeWitt H. Lucking.

This court had occasion to look into this question, although it was not there necessary to decide it, in the case of Schuermann v. Twachtman, 24 C.C.(N.S.), 459, wherein it was stated that, in the absence of Ohio decisions, if it were necessary to construe such policy we should be inclined to follow the rule laid down in the case of Continental Life Insurance Co. v. Palmer, 42 Conn., 60, and other eases there referred to, as carrying out the natural intention of the parties and being more in accord with the law of descent and distribution. As a matter of principle we see no reason to change that view.

Two unreported eases were referred to in that decision: Frank v. Bauman, 54 O. S., 621, and Dovel v. Dovel, 69 O. S., 576, which are relied upon here on behalf of defendants in error. Both of these decisions are without report other than the statement that they are decided on the authority of Ryan v. Rothweiler.

Certain notes in regard to Frank v. Bauman are published in 35 W. L. B., 59. An examination of the record, however, in that case shows that while one of the parties in that case was a granddaughter, Bessie Frank, occupying a position similar to that of William Lucking and DeWitt H. Lucking in this case, no cross-petition in error was filed in her behalf, and the only error proceeding before the Supreme Court was that of her mother’s administrator; so that the question in that case as it was presented to the Supreme Court was strictly within the facts of Ryan v. Rothweiler.

The record of the case of Dovel v. Dovel clearly shows that Lizzie O. Dovel was a grandchild occupying a position similar to that of William and DeWitt IT. Lucking in this case, and there the question was squarely put to the Supreme Court in the same manner in which this case is presented to this court. The judgment of the circuit court was there affirmed by the Supreme Court, adjudging that she was not entitled to participate in the proceeds of the policy. .

While the Dovel ease, so far as we have been advised, has not been reported in either the circuit court or the Supreme Court, through the industry of the librarian of the Cincinnati Law Library a published copy of the record and briefs which were used in the Supreme Court has been made available to this court. We understand from its repeated declarations that the attitude of the Supreme Court as to the binding force of unreported cases has' not been modified, yet in the recent ease of Bumiller v. Walker, 95 O. S., 351, the following language is used in the opinion of the court:

“Ordinarily this court does not regard its unreported cases as judicial authority, for the reason that it is generally impossible to ascertain the concrete legal propositions involved and decided; but where a single question is involved, and that succinctly stated and decided, it can not be said that such unreported case is wholly without influence.”

This Dovel case having been brought to our attention by the briefs of counsel and the same question having apparently been tbe basis of the Supreme Court’s decision there, we feel bound under the rule of judicial subordination, regardless of any contrary view of tbe law we might otherwise be inclined to hold

We therefore hold that no error was committed -by the court below in sustaining the demurrers, and its judgment is’ affirmed.

Gorman, J., and Hamilton, J., concur.


author: Allread, J.

text:
    INJUNCTION. BINDING ON REORGANIZED COMPANY.
    Court of Appeals for Franklin County.
    The Farmers Fertilizer Co. v. Ruh et al.
    Decided, February 13, 1917.

      Injunction — Standing Against a Corporation — Operative Against the Reorganized Company, When.

    Where the property and business of a corporation is transferred to and accepted by a 'new corporation of the same name and with the same managing officers, an injunction issued and in force against the old company prior to and at the time of the transfer is binding upon the new company while -managing the plant amt property so acquired and engaged in the same or similar business, thereon, although the order of injunction d-i-d not expressly include the -officers, agents and assignee of the original company.

      J. JE. Todd and George H. Jones., for plaintiff in error.

      D. N. Postlewaite, contra.
   Allread, J.

On August 16, 1911, the Farmers Fertilizer Company, a corporation owning a commercial fertilizer plant, was, at the suit of residents of the vicinity, enjoined “from doing anything upon its premises that will set free offensive smells, stenches and noxious vapors.”

In the month of November, 1915, a new corporation was formed. By consent of the old corporation the same name was used. A majority of the stockholders of the old company were stockholders of the new company.

The chief officers and six directors of the old company were chosen to like positions in the new. The corporate purpose of the new company was substantially the same as the old, to-wit, dealing in and manufacturing fertilizer and the ingredients thereof and kindred products.

The old company sold its property and plan to the new company, which took possession of the plant, erected new buildings thereon, and largely changed the business thereof' — from a commercial fertilizer to a sulphuric acid plant. Upon affidavit and complaint the new corporation was cited to answer for violation of the injunction, and upon a hearing was convicted.

Counsel for plaintiff in error contend that the conviction was unlawful:

1. Because there was a new company in possession and charge, not a party to the 'original case, nor named nor included in the injunction.

2. Because the business from which the noxious vapors and stench are claimed to have emanated was a new business conducted in new buildings and not described in the original petition and order of injunction.

While it is true that the restraining order was directed against the original corporation- and did not expressly include its agents, successors or assigns, yet we are of opinion that the. injunction operated against its controlling officers and managing agents. 3 Cook on Corporations (7th Ed.), Section 755.

This arises out of the very nature of the ease. A corporation can not act except through its officers and agents and can not act in opposition to the will of its directors and stockholders.

The reincorporation of the Farmers Fertilizer Company was for convenience in the' transaction of business. Its controlling officers and stockholders were practically the same.

A corporation is defined to be:

“A collection of. many individuals, united in one body under a special denomination, and vested by the policy of the law with the capacity of acting in several respects as an individual.” State, ex rel, v. Standard Oil Co., 49 Ohio St., 137, 178, and First Natl. Bank v. Trebein Co., 59 Ohio St., 316, 327.

The fiction that a corporation is a legal entity separate -and apart from the individuals composing the corporation is introduced for convenience of the corporation in the transaction of its business. For many purposes, however, the fiction may be disregarded and the corporation held to be the individuals composing it.

In the case at bar the new corporation succeeded the old in the ownership of the property and plant and in the conduct of the ■business. The new corporation was controlled by officers and agents and stockholders who were bound by the injunction, and who were acting under a charter. Looking at the new company as a collection of individuals, it would be subject to the injunction. It is a case, therefore, where the fiction of reincorporation should, as to the injunction, be disregarded. Besides, even if the new corporation were a new entity, the circumstances of the transfer of title and the knowledge of the officers and agents of the new company would hold them liable to the injunction of which they had notice, and which affected the management of the business to which they had succeeded. Miller et al v. Toledo Grain & Milling Co., 21 C. C., 325; In re Lennon, 166 U. S., 548; 22 Cyc., 1012, and 3 Cook on Corporations (7th Ed.), Section 755.

There is a conflict of authority upon the proposition as to whether agents or third parties not named in the order of injunction can be held for contempt, but we think that the weight of authority sustains the conclusion herein announced.

"While it is true that the business of the new corporation has been changed, yet it is a kindred business and employs a process productive of stenches and noxious vapors similar in character to those arising out of the business conducted by the old company.

The order of injunction was very broad. "While the petition under which it was granted described the business of the old company, yet the injunction as modified was "from doing anything upon said premises that will set free offensive smells, stenches and noxious vapors.” This broad injunction was within the scope of the prayer of the petition and remained valid until modified.

The change of business did not, therefore, exonerate the new corporation from the injunction.

It therefore follows that the judgment of the court of common pleas should be affirmed.

Ferneding, J., and Kunkde, J., concur.


text:
    EFFECT OF CONTINUING IN POSSESSION BY ONE HOLDING OPTION.TO RENEW LEASE.
    Court of Appeals for Hamilton County.
    Gross v. Clauss.
    Decided, June 1, 1915.

      Landlord and Tenant — Lessee Holding over under an Option so to do Becomes Bound for a New Term — Notice of Intention to Exercise Option Not Necessary.

    1. A lease for a term with a privilege or option in tlie tenant of a renewal or extension for a further term upon the same terms and conditions, is a present demise -as to the renewal to begin at a -future time, -and under such covenant no new lease need be required, but any indication on the part of the tenant of his intention to avail himself of his privilege operates to extend to him the right of the additional term.
    2. A lease -contained a provision that if the lessee should have performed all the conditions of the lease then upon its expiration the lessee should have the privilege of renewing the same for a four-year term upon the terms and conditions of the original lease. Upon the expiration of the original term the lessee remained in ■possession of the premises without anything being said or done by either of the parties with reference to a new lease, no notice being given by the lessee of his intention to exercise his option or privilege of a renewal. Lessee continued to occupy the premises and pay the rent for three months after the expiration -of the original term. Held: That the lessee by continuing in possession of the premises and paying the stipulated rent without notifying the lessor of his intention not to make his election to renew, thereby bound himself for the term of four years from the date of the expiration of the original lease.

      E. A. Hafner and Walter C. Muhlhauser, for plaintiff in error.

      W. A. Rinclchoff, contra.
   Gorman, J.

This is a proceeding in error to reverse a judgment of the municipal court of Cincinnati, in favor of defendant in error. The action below was one to recover $125 r,ent claimed to be due under a lease between defendant in ,error, Elizabeth Clauss, the lessor, and plaintiff in error, George P. Gross, lessee.

The lease was in the usual form, containing the usual covenants, and was duly signed, attested, aeknowleged and recorded. The term was for one year from October 1, 1911, at a yearly rental of $300 payable in monthly installments of $25 in advance. There is the following proviso in the lease: ‘ ‘ provided that if the said lessee shall have performed all the conditions of this lease, that said lessee shall have the privilege oP renewing the said lease for the term of four years from Oct. 1, 1912, upon the same terms and conditions herein set forth.”

Upon the expiration of the term of one year the lessee, Gross, remained in possession of the premises without anything being said or done by either of the parties with reference to a new lease, and no notice being given by the lessee of his intention to exercise his option or privilege of a renewal. Lessee continued to occupy the premises thereafter, and to pay the $25 rent each month, down to December 31, 1912, three months after the expiration of the original term. On December 31, 1912, he notified the lessor of his intention to relinquish the premises and remove therefrom, but he continued to pay the rent monthly down to September 1,1913, although he had vacated on December 31, 1912. The premises continued vacant thereafter down to February 1, 1914. The action was for the recovery of the rent for the five months, September, October, November and December, 1913, and January, 1914, upon the claim of the lessor, Mrs. Clauss, that by holding over his term, and nothing being said as to a renewal, the lessee thereby made his election to take the premises under his privilege of renewal for the further term of four years. The court below held with the defendant in error in her contention, and found that by holding over his term under the circumstances shown the lessee became bound for the additional four years. In this holding we are of the opinion that the court below committed no error.

We are of the opinion that the lessee, Gross, by continuing in possession of the premises and paying the stipulated rent, without notifying the lessor of his intention not to make his .election to renew, thereby bound himself for the term of four years from October 1, 1912. See Foster et al v. Ellison, 12 C.C.(N.S.), 399, where' the court says on page 400, in speaking of the effect of holding over under a lease containing a provision for a renewal similar to the one under consideration:

“The term under the lease is for three and a half years, renewable forever, without any express notice required of the intention of lessee to renew. He held over the term of three and one-half years for a period of twenty days before notice to quit the premises [by the landlord] was served upon him, and thereby elected to renew.”

In 1 Taylor on Landlord and Tenant (9th Ed.), Section 332, at page 407, the author says:

“And where no notice is stipulated for, the tenant’s mere continuance in possession-and paying rent, without express notice of his desire for the further term, entitles and binds him thereto.” Citing numerous cases.

In Jones on Landlord and Tenant, Section 338, the author discusses the question of whether or not a new lease is necessary under a privilege of renewal or whether at the option of the lessee it is extended by force of the covenant itself and becomes in effect a lease for the additional term. He states that there is a conflict of authorities on this point, New Hampshire, Massachusetts, Missouri and Maine holding that the election is exercised, where no notice is required, by the tenant remaining in possession and paying the rent. See Ranlet v. Cook, 44 N. H., 512; Hall v. Spaulding, 42 N. H., 259; Ferguson v. Jackson, 180 Mass., 557, and Insurance & Law Building Co. v. National Bank, 5 Mo. App., 333, affirmed 71 Mo., 58.

The author further states that there are authorities holding that the word “renew” and “extend” should be construed to mean that a new lease should be executed, citing Kollock v. Scribner, 98 Wis., 104, and Orton v. Noonan, 27 Wis., 272.

We think that the best considered authorities hold that a lease for a term with a privilege or option in the tenant of a renewal or extension for a further term upon the same terms and conditions is a present demise as to the renewal to begin at a future time, and under such leases no new lease need be required, but any indication on the part of the tenant of his intention to avail himself of his privilege operates to extend to him the right of the additional term.

It is true that some authorities make a distinction between a privilege of “renewal” and a privilege of “extension,” but for all practical purposes, and to the mind of any ordinary person, a privilege of “renewal” and a privilege of “extension” vest in the lessee the same right, a right that adheres to the land and A covenant that runs with it.

The ease of Stevenson v. Alms, 9 W. L. B., 17, is cited as an authority by counsel for plaintiff in .error, to the effect that a tenant holding over under a lease similar to the one in the case at bar is not bound for the additional term. An examination of the facts in that case discloses that the tenant before the expiration of his term notified the lessor of his intention not to avail himself of his privilege and that he intended to vacate at the end of his term, and it was known to the lessor that the tenant had made arrangements to vacate and take other premises in the vicinity; so that it could not be held, as a matter of law, that by holding over in that case the lessee had impliedly elected to renew the lease.

In the case at bar the tenant, by continuing for three months in the premises, paying the rent under the lease and not notifying the lessor of his intention to surrender the premises and relinquish his privilege of a renewal, must be held to have thereby impliedly made his election to avail himself of his privilege of renewal, and to have thereby bound himself, and also the lessor, for the additional term. The rent not having been paid for the five months, and having accrued under the renewed term of the lease, the lessee became liable therefor, and the judgment was properly entered against him.

Judgment affirmed.

Jones (E. H.), J., and Jones (Oliver B.), J., concur.


text:
    IMPLIED CONTRACT FOR SERVICES AS HOUSEKEEPER.
    Court of Appeals for Richland County.
    Salisbury v. Frank, Administrator.
    Decided, January 29, 1918.

      Services — Family Relationship Not Created by Performance of Household Duties — Recovery on on Implied Contract — Master and Servant.

    The fact that a woman lives in the home of a man and performs services for him does not create a family relationship, where the parties are not of blood kin and not related by intermarriage. Under such circumstances there may be a recovery for services rendered under an implied contract.

      Van C. Cook, for plaintiff in error.

      James P. Seward, contra.
   Powell, J.

The parties to this proceeding hold the same relative position in this court that they held in the court below; the plaintiff in error having been plaintiff and the defendant in error having ■been defendant in that court.

The action was commenced by the plaintiff, Lina Salisbury, to recover compensation for service rendered by her to one Louis Frank, deceased. She sets out in her petition two causes of action. The first is for service rendered as housekeeper for the said Louis Frank from November 1, 1913, to September 1, 1914, in the total sum of $217. For her second cause of action she seeks to recover judgment for bhe value of services rendered by her as housekeeper and nurse for the said Louis Frank from September 1, 1914, to the time of his death, May 27, 1915, in the sum of $577; making a total of $794 in said two causes of action for which she asks judgment.

The answer does not deny the rendition of the service by plaintiff to the said Louis Frank, or the value claimed for them.

The defendant seeks to defeat a recovery upon the ground that the plaintiff became, and was at the time the said services were rendered, a member of the family of the said Lonis Frank, and that by reason thereof she could not recover for services rendered except upon an express contract alleged and proved. There was no express contract alleged in the petition, but suit is brought upon an implied contract. There is no other defense set up. There is, however, a denial of indebtedness of the amount claimed. This is only a denial of a legal conclusion and does not amount to a defense to the cause or causes of action set out in the petition.

A reply was filed by plaintiff in the nature of a general denial, excepting that in her reply she admitted the payment to her of the sum of $85 by the said Louis Frank in his lifetime, which should be credited on the amount sued for by her; but she denies each and every other allegation in the answer set forth.

Trial was had upon the issues thus made, resulting in a verdict of $1 for the plaintiff. A motion for new trial was made and overruled, a bill of exceptions was taken embodying the entire testimony and the charge of the court, and the case was brought into this court by petition in error for review.

We have carefully examined the entire record, with all the exceptions and objections thereto taken and filed, and the authorities cited by counsel in their briefs.

Upon such examination we have arrived at the opinion that the testimony presented does not sustain the averments of the answer; and, further, that the relationship that existed between Louis Frank in his lifetime and the plaintiff was not a family relationship. It was only the ordinary relationship of master and servant, or employer and employee.

The evidence shows that they were not of blood kin and were not related by intermarriage, so that if any family relationship existed it must have been by operation of law and have grown out of the fact that she lived with the .defendant and performed services for him.

The court finds that the relationship that did exist was not a family relationship, and that such relationship as was shown is not a defense against the claim of plaintiff as set forth in her petition.

At the time plaintiff entered into his employment the said Lonis Frank, deceased, was without any family relationship. His wife was dead, his two sons had abandoned his home, and he was the only occupant of his dwelling-house. -Under these circumstances plaintiff entered his home and became his housekeeper. She occupied this position from November 1, 1913, to September 1, 1914, when by reason of illness and failing health said Louis Frank became in need of the services of a nurse, and these services were rendered for him by the plaintiff until his death May 27, 1915. If plaintiff occupied any other relationship toward said decedent than that of housekeeper and nurse, during the period-mentioned, both the pleadings and the evidence fail to show it.

It is said that she was a member of his family, and therefore not entitled to compensation for services without an express contract. Any domestic or servant is a member of her employer’s family in the same sense that plaintiff was a member of decedent’s family.

Defendant attempted to show by the evidence that an immoral relationship existed between plaintiff and decedent.

This the court thinks should not have been permitted, as nothing of that kind is alleged or set forth in the pleadings, and, while it is the law that immoral considerations of the character claimed to exist are not such considerations ag will sustain an action, a party in order to avail himself of such defense must allege and prove that they exist. This was not done and no such claim appears in the pleadings. The testimony shows that plaintiff’s services were of the value alleged by her, and that only the ordinary value or price of such services in this community was sought to be recovered by her.

We think “the laborer is worthy of his hire” and that the amount returned by the jury was inadequate and the verdict should be reversed and set aside. Section 11576,.General Code, Subsection 5.

The court is of the opinion that the court below erred in not sustaining the motion for a new trial, for the reasons set forth in said motion.

The judgment of the court of common pleas will be reversed, and the cause remanded for a new trial and such other proceedings as are authorized by law.

Shields, J., and Houck, J., concur.


author: By the Court.

text:
    LIMITATION OF INDEMNITY ON ACCOUNT OF AUTOMOBILE ACCIDENT.
    Court of Appeals for Hamilton County.
    Walter L. Klein, H. George Sickles and Joseph D. Klein, Executors of the Estate of Samuel Klein, Deceased, v. The Employers’ Liability Assurance Corporation, Limited, of London, England.

    Decided, February 4, 1918.

      Liability Insurance — 'Construction of Provision in Policy Covering Accident in the Use of an Automobile.

    Tbe limitation of liability on tbe part of tbe defendant insurance company, under tbe policy issued by it indemnifying tbe plaintiff bolder against bodily injuries suffered by any person >or persons by reason of tbe maintenance or use by bim of a certain automobile, is limited to five thousand dollars.

      Kramer &■ Bettman, for plaintiffs in error.

      Worthington, Strong & Stettinius, contra.

       Affirming Klein et al v. Employers’ Liability Co., 19 N.P.(N.S,), 426,

   By the Court.

The policy upon which this action is based indemnifies plaintiffs “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death resulting therefrom, accidentally suffered by any person or persons by means of the maintenance or use” of a certain automobile, within certain limits of time'and place, subject to certain conditions among which is.:

“Condition A. The corporation’s liability on account of an accident resulting in such injuries to one person, including death, is limited to five thousand dollars ($5,000), and subject to the same limit for each person; the corporation’s total liability on account of any one accident resulting in injuries to more than one person, including death, is limited to ten thousand dollars ($10,000).”

By reason of bodily injuries to Jennie Goldstein damages have ■been recovered and paid to her and also to her husband, Daniel Goldstein. It is conceded by defendant that it is bound to indemnify plaintiffs for both these recoveries, subject to the limitation expressed in the policy. The only question to be determined is whether the limit of liability is five thousand or ten thousand dollars.

We hold that this limit is five thousand dollars.

This is clearly fixed by the first clause of Condition A: “ The corporation’s liability on account of an accident resulting in such injuries to one person, including death, is limited to five thousand dollars.” This clause by the use of the word “such” injuries refers only to bodily injuries, and limits the indemnity, no matter how many may recover because of such injury, since, as in this case,* more than one person may claim and secure damages for bodily injuries to the one person.

The latter part of Condition. A, which increases the limit where more than one person is injured as a result of any one accident, is distinctly stated to be “subject to the. same limit for each person” — that is, to the five thousand dollar limit for each 'person receiving bodily injuries.

We are in accord with the opinion of Judge May in the trial court, as found in 19 N.P.(N.S), 426.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur; Gorman, J., not participating.