author: Carpenter, J.

text:
    Traul, Appellant, v. Kreinbihl et al., Appellees.
    (No. 372
    Decided June 9, 1947.)

      Mr. Roy Warren Roof and Mr. Howard A. Traul, for appellant.

      Mr. .Paul T. Mahon and Mr. Oren E. Dickason, for appellees.
   Carpenter, J.

This appeal on questions of law is from a judgment sustaining a demurrer, filed by the defendants, and dismissing the petition solely on the ground that the court did not have jurisdiction of the subject of the action. The demurrer raised also the questions of the capacity of the plaintiff to sue and the sufficiency of the petition, but the court, having concluded it did not have jurisdiction, expressly did not determine them.

The defendants were the executors of the estate of Phil M. Crow, deceased, appointed by the Probate Court of this county, and Emma Arndt, a resident of Allen county, Ohio: The plaintiff sued in behalf of himself and all other creditors of the Peoples Commercial Bank of Beliefontaine, Ohio, which was insolvent and was taken over for liquidation by the Superintendent of Banks February 24, 1931. Phil M. Crow had owned 118 shares in that bank and on December 30, 1930, transferred them to Emma Arndt. The shareholder’s liability on this stock was $11,800, and when the claim for it was presented to Emma Arndt and Phil M. Crow by the superintendent, they each claimed to be insolvent and unable to pay. On May 6, 1935, an action on such liability was filed against Crow in the Court of Common Pleas of Allen county. It is not alleged that Emma Arndt was a party to that action.

It is alleged that Crow falsely and fraudulently represented to the superintendent and testified he was insolvent and could not pay the $11,800 and interest then due, but could and would pay $6,000 in full settlement of that claim; and that thereby, Crow, induced that court to render its judgment against him for that amount on November 10, 1936, when in fact at that time Crow was the owner of property worth $500,000. It is alleged also that Emma Arndt, at the time she represented herself to be insolvent, was the •owner of assets in value in excess of the bank’s claim; and that, by reason of these fraudulent representations and false testimony, the creditors of the bank were defrauded out of $10,462.23, the difference between the $11,800 plus accrued interest and the $6,000 'Crow paid.

The plaintiff alleges further that he did not discover this fraud until about March 12, 1945.

The prayer is for a judgment against Emma Arndt .and the executors of the Crow estate for the amount .above stated and that the judgment of the Court of Common Pleas of Allen county “be set aside and held for naught.”

.The sole question before this court is whether the Court of Common Pleas of Hardin county had jurisdiction of the subject of this action; whether a cause of action is stated is not in this appeal.

Consideration of this question may be approached from two standpoints. If this is simply an action for money based on the fraud alleged to have been practiced by Emma Arndt and Phil M. Crow, there can be no doubt that the court had jurisdiction of both the subject of the action and the parties. The executors were appointed by the Probate Court of Hardin county, one of them resided in such county •and the service of process on them was properly made. The demurrer entered Emma Arndt’s appearance herein. As to her, this is only an action for money based upon her alleged fraud.

On the other hand, if, as the trial court and the parties seem to regard the problem, it was necessary for .plaintiff’s recovery that the judgment of the Allen •county court be nullified, especially as a possible defense herein by the Crow estate, then quite another issue is presented.

The trial court did not express in the record the basis for its judgment, but it is argued that the only relief available to the plaintiff was in the Allen county court, under Section 11631, General Code (103 Ohio Laws, 426), before its amendment in 1945, which empowered a court to set aside its own judgment after term on certain conditions. One of these, as stated in subdivision 10, was where the judgment was obtained “by false testimony” and “the guilty party has been convicted.” That is not available because Crow was-not so convicted.

Subdivision 4 of that section contains the broader language, “for fraud practiced by the successful party in obtaining a judgment or order.” Under the limitation prescribed by Section 11640, General Code, a proceeding under subdivision 4 of Section 11631 must be brought within two years after the judgment was rendered. As much more than two years had passed when the circumstances allegedly constituting fraud were discovered, proceedings under that provision were closed to the plaintiff (Phillips v. Boyd, 28 Ohio Law Abs., 378). If he is entitled to any relief, it can only be by equitable remedy — a civil action under the Code — based on the claimed fraud, the limitation on which action is four years after “the fraud is discovered” (Section 11224, General Code).

Such relief by original action has been long recognized, even before the enactment of the Code of Civil Procedure (Lockwood v. Mitchell, 19 Ohio, 448, 53 Am. Dec., 438). Since the adoption of such Code, such relief was discussed in Long v. Mulford, 17 Ohio St., 484, 93 Am. Dec., 638, which was followed in Coates v. Chillicothe Branch, State Bank of Ohio, 23 Ohio St., 415. In Darst v. Phillips, 41 Ohio St., 514, the relief was obtained by an original action in Lucas county Court of Common Pleas wherein a judgment of the Court of Common Pleas of Williams county was impeached. In this respect, it is directly in point with the case at bar. The syllabus in the Darst case clearly states the principle applicable here, as follows:

“The special proceeding provided by Section 5354 Revised Statutes [Section 11631, General Code], authorizing courts to vacate their own judgments rendered at a previous term, for fraud practiced by the successful party, is a cumulative remedy and does not exclude or limit the right of a party by original action to impeach a judgment or enjoin its collection for such fraud.”

That case was cited and followed in the memorandum case of Citizens Savings Bank & Trust Co. v. Robison, Admx., 91 Ohio St., 421, 110 N. E., 1057. Those cases were discussed by Chief Justice Marshall in Seeds v. Seeds, 116 Ohio St., 144, 156 N. E., 193, 52 A. L. R., 761, and the rule was carried into paragraph three of the syllabus.

In Christmann v. Coleman, 117 Ohio St., 1, 9, 157 N. E., 482, the principle of those cases was recognized even to the right to attack the judgment of a court in another jurisdiction, and the same is true in Northern Ohio P. & L. Co. v. Smith, 126 Ohio St., 601, 611, 186 N. E., 712.

The Coates and Darst cases were followed by the Circuit Court of the third circuit in Howenstine, Admr., v. Sweet, 13 C. C., 239, 7 C. D., 498, wherein the Common Pleas Court of Logan county was held to have had jurisdiction of a collateral attack for fraud upon a judgment of the Probate Court of that county. In Dahms v. Swinburne, 31 Ohio App., 512, 167 N. E., 486, a petition in the Common Pleas Court of Hamilton county attacking for fraud a judgment' of the Municipal Court of Cincinnati was sustained. In Kundert v. Kundert, 24 Ohio App., 342, 156 N. E., 237, it was pointed out that an action of such-a character is not one in rem against the judgment attacked, but is a proceeding “in personam against a party to the judgment, seeking to deprive him of the benefit of the judgment.”

As to both the personal and the fiduciary defendants, the trial court was in error in its conclusion that it did not have jurisdiction of the subject of the action, and its judgment dismissing the petition is reversed and the cause remanded for the determination of the other grounds of the demurrer and for further proceedings, if necessary.

Judgment reversed and cause remanded.

Stuart and Conn, JJ., concur.

Stuart, Conn and Carpenter, JJ., of the Sixth Appellate District, sitting by designation in the Third Appellate District.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Fissel, Appellant, v. Gordon et al., Appellees.
    (No. 6969
    Decided July 6, 1948.)

      Mr. John P. Strother, for appellant.

      Mr. Calvin S. Cramer and Mr. Cedric Vogel, for appellees.
   By the Court.

This is an appeal on questions of law and fact from a judgment finding on the issues joined in favor of the defendants, and entering judgment for the costs in their favor.

The plaintiff, Charles Fissel, conveyed an undivided one-half interest in certain real estate to defendant Stanley Cordon on March 18, 1941. This action is one to have the conveyance and subsequent successive conveyances by Gordon to Lovita Giffert and by her to Martha Lee Johnson and Grace Cox set aside, and the title of the plaintiff quieted, and for an accounting of rent and for damages.

The sole, ground alleged in the petition and the amended petition, or amendment to the petition as it' is variously called, is that at the time the plaintiff executed the deed to Stanley Gordon he was of unsound mind and lacked the mental capacity to execute a deed. There is no allegation or proof that Lovita Giffert at the time she acquired title knew of any defect in the title of Gordon, and, unless the deed from Gordon to her was totally void, she acquired a title that was free of any equity which the plaintiff might have had to rescind the conveyances and recover the title and possession of the property. The conveyance to Martha Lee Johnson and Grace Cox was made during the pendency of this action, and, of course, they took title subject to whatever judgment might be entered in this action, but if Lovita Giffert’s title was free of the claim of the plaintiff, their title would be equally so.

We have weighed the evidence in this case and have' been unable to find any substantial evidence that in 1941 when the deed to Gordon was executed the plaintiff lacked the mental capacity to execute a deed. At that time he was transacting every other form of business, contracts of employment, depositing in and withdrawing money from a building association, etc., and performing all other acts that would normally be performed by a sane person in his environment. There is a failure of proof of a lack of mental capacity.

As the sole ground alleged for invalidating Gordon’s deed is mental incapacity, our finding, therefore, disposes of the entire case.

It might be added, however, that a deed executed by an insane person is not void unless the person is so bereft of reason as to make him incapable of giving even an imperfect assent to the transaction. 22 Ohio Jurisprudence, 67 et seq., Section 27 et seq.; 28 American Jurisprudence, 692 et seq., Section 56 et seq. They are voidable. And mere weakness of mind in the absence of fraud or undue influence is not a ground for declaring a deed either void or voidable. 22 Ohio Jurisprudence, 79, Section 35. The title of Lovita Giffert would, therefore, be free of any claim of the plaintiff and she could transmit such title to her grantees, notwithstanding the pendency of this action. That would prevent the plaintiff from recovering the real estate, and would leave nothing to be considered except the claim for a personal judgment, and as to that there is no allegation of fraud or undue influence against any of the defendants and no substantial evidence to that effect.

For these reasons, a judgment may be entered finding on the issues in favor of the defendants and adjudging the costs against the plaintiff.

Judgment accordingly.

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


author: Hunsicker, J.

text:
    Scaglioni, Appellant, v. Oriti, d. b. a. Oriti’s Wholesale Grocery, Appellee.

      (No. 3933
    Decided June 7, 1948.)

      Mr. Stanley Denlinger, for appellant.

      Messrs. Squire, Sanders <& Dempsey and Messrs. Slabaugh, Guinther, Jeter & Pflueger, for appellee.
   Hunsicker, J.

This is an appeal on questions of law. The plaintiff below (appellant here), Joe Scaglioni, says that the trial court erred in directing a verdict at the close of the plaintiff’s case and awarding judgment thereon for the defendant below (appellee here), Joe Oriti.

Joe Seaglioni commenced an action on December 4, 1941, against Joe Oriti, alleging that on May 12, 1941, Oriti sold Mrs. Seaglioni food — to wit, a can of peas— that was unfit for human consumption, and that when the plaintiff ate the peas he became ill and suffered injuries, for which he asked to be compensated. The defendant answered by way of a general denial.

In February, 1948, at the trial in the court below, there was no evidence introduced showing anything unusual in respect to the peas as to odor, appearance or condition, and there is no evidence that any other person became ill from the eating of this food.

Plaintiff called as a witness the physician who attended him at the time he became ill. The physician, after certain qualifying questions, gave the following testimony :

“Q. Will you tell the court and jury as nearly as you can remember what was the condition in which you found Mr. Seaglioni when you called upon him at that time? A. He was quite ill. He had an attack of nausea and vomiting, with abdominal pain and distention, with a fever, and he was quite prostrated.

“Q. What did you diagnose his illness as at that time? A. I thought he had food intoxication, food poisoning.

tt $ * # *

“Q. Dr. Bowlen, based upon your examination of the plaintiff in this case, in May of 1941, and upon the objective symptoms that you saw at that time, and have testified to, and the additional fact that the plaintiff had a short time before your examination eaten eggs scrambled in peas in olive oil, together with coffee and bread, what is your opinion as to the peas in that transaction having been spoiled and unfit for human consumption ?

# iff * * #

“A. Yes, I thought they were.

# # # # #

“Q. Let me ask you what is your opinion as to the peas being the cause of this plaintiff’s illness at the time you examined him?

# * * * *

“A. Yes, I thought they were.”

These are the only questions and answers as to the cause of illness. The doctor was a competent witness, he could have testified to facts within his knowledge as attending physician, and, in accord with the rule that one skilled in a profession such as medicine may give opinion testimony, he was entitled to express his opinion as to the nature and the cause of the illness.

The opinion of an expert which must be taken as his evidence is his final conclusion at the moment of testifying. The physician examined the plaintiff in the early morning of May 13,1941; he testified at the trial in February, 1948. We do not have the benefit of his opinion as of the time of trial. It may be that, after some thought and reflection on the illness, he would have a more mature and considered opinion on the subject.

All of the questions and answers related to the time of the illness, and not to what opinion concerning the cause of the illness the physician had at the time of giving his testimony;

Since the early case of Runyan v. Price, 15 Ohio St., 1, 13, 86 Am. Dec., 459, our Supreme Court has held that the opinion of a witness must relate to the time the witness is being examined.

The latest pronouncement of our Supreme Court on that subject is found in the case of Hubach, a Minor, v. Cole, 133 Ohio St., 137, 144, 12 N. E. (2d), 283, where the court said:

‘ ‘ The general rule seems to be that a medical expert should state the opinion he holds at the time he testifies, rather than the opinion held at some previous time. 22 Corpus Juris, 675, Section 764; Lyons v. Chicago City Ry. Co., 258 Ill., 75, 101 N. E., 211; McGovern v. Hays & Smith, 75 Vt., 104, 53 A., 326. Compare, Runyan v. Price, 15 Ohio St., 1, 13, 86 Am. Dec., 459. Or, as it is expressed in Perangelo’s Case, 277 Mass., 59, 64, 177 N. E., 892, 893, ‘The opinion of an expert which must be taken as his evidence is his final conclusion at the moment of testifying.’ ”

There being before the jury no competent evidence of the medical expert as of the time of his testimony, connecting the eating of the, peas with the appellant’s illness, nor any other evidence except such as would permit only of guess and speculation, the Court of Common Pleas was justified in directing a verdict for the appellee.

The judgment is affirmed.

Judgment affirmed.

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


author: Hurd, P. J.

text:
    Blythin, Trustee, Appellee, v. Zangerle, Auditor, et al., Appellants.

      (No. 20648
    Decided October 13, 1947.)

      Mr. Alexander Mints, for appellee.

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for appellants.
   Hurd, P. J.

This action in equity for injunctive' relief is here on appeal on questions of law and fact from a judgment of the Court of Common Pleas of Cuyahoga county, wherein the defendants were enjoined from assessing and attempting to collect assessments for personal property taxes for the years 1941 and 1942, charged against The North American Mortgage Loan Company, predecessor of plaintiff, appellee herein. The trial court held that The North American Mortgage Loan Company was a dealer in intangibles and not subject to liability as a general taxpayer as claimed by the defendants.

Defendants, appellants herein, contend that the plaintiff is not entitled to injunctive relief, and claim error on the part of the trial court on two grounds which we shall consider in the order set forth, as follows:

££1. The North American Mortgage Loan Company, plaintiff’s predecessor, was not in 1941 and 1942 a dealer in intangibles as defined in Section 5414-1, General Code.

“2. The failure of the plaintiff to avail himself of his statutory remedies, bars injunctive relief under Section 12075, General Code, against the collection of assessments for personal property. ’ ’

By agreement, the case is submitted to this court on the record in the trial court. Of major importance is a stipulation that in the instant case all the facts cited in the opinion in the case of Shuster v. North American Mortgage Loan Co., 139 Ohio St., 315, 40 N. E. (2d), 130, are to be taken as the accepted facts herein so that everything that is said there, so far as it is pertinent to the issues iu this case, may be treated as part of the record in this case. .

An examination of the facts in the case of Shuster v. Mortgage Loan Co., supra, discloses that the controversy involved therein is an outgrowth of the failure of the North American Trust Company, a banking corporation, to meet its obligations in the regular course of business in the year 1933, resulting in the assumption of jurisdiction by the Superintendent of Banks under the provisions of Section 710-88a, General Code.

A plan for the reorganization of the bank under the Code involved the paying off of an obligation to the Reconstruction Finance Corporation and a waiver by the bank’s depositors of 80 per cent of the respective deposits. To accomplish this it was agreed that a new corporation, to be known as North American Mortgage Loan Company, should be organized and certain assets of the bank transferred to the mortgage loan company. This plan enabled the mortgage loan company to secure a new loan from the Reconstruction Finance Corporation sufficient to pay off the bank’s obligations thereto and to furnish a liquid condition for the new bank which resulted from the reorganization.

The plan of reorganization approved by the Superintendent of Banks and the Common Pleas Court is evidenced by a written agreement which is an exhibit in this case. It was provided as part of the plan that the mortgage loan company “shall, as soon as practicable, issue * # * nonnegotiable instruments to be known as certificates of participation which said instruments shall in no manner be a liability of said bank. Each said certificate of participation shall not bear interest and shall evidence a pro rata interest in the assets transferred by said bank to said mortgage loan company and shall, upon request, be delivered to the depositor or claimant of the bank, entitled thereto * * *. Said mortgage company shall * * # apply cash realized from the liquidation of the assets so transferred to it by the bank * * * in payment of said certificates of participation.”

It would unduly lengthen this opinion to restate here the facts set forth at length in the case of Shuster v. Mortgage Loan Co., supra, and to restate here the careful analysis of the agreement of reorganization in question which is contained in the opinion in that case. We think it sufficient to state that upon the incorporation of the mortgage loan company, the bank by proper instruments of conveyance delivered to the mortgage loan company the assets of the bank found by the Superintendent of Banks to be ineligible to remain therein and such further assets as were required to secure a loan sufficient to discharge the obligation of the bank to the Reconstruction Finance Corporation, and that the mortgage loan company made an additional advancement of cash in order to improve the liquid condition of the bank.

The North American Mortgage Loan Company was thereafter incorporated with a maximum number of authorized shares of 250, all of which were common shares without par value, and the amount of the capital was fixed at $500. It appears from the record that the mortgage loan company was organized for the purpose of liquidating the frozen assets of the bank and of distributing the proceeds of the liquidation for the benefit of depositors, creditors and shareholders of the closed bank.

Thereafter, in October 1942, in an action pending herein, this court removed the mortgage loan company as trustee under the trust which had been created by the Common Pleas Court of Cuyahoga county in August of 1934, and appointed the plaintiff, Edward Blythin, as successor trustee.

For the years in question involving the assessments complained of, the mortgage loan company filed with the. proper tax authorities property tax returns but-filed as a dealer in intangibles rather than as a fiduciary and general taxpayer. The difference between the two is that a dealer in intangibles under our tax laws does not pay on the intangibles which comprise the dealer’s stock in trade but rather on the paid-in capital which in this case would be nominal, whereas a general taxpayer pays on the value of the intangibles which it owns.

In the instant case, the Tax Commissioner fixed the tax in the sum of $1001.58 for the year 1941, and in the sum of $882.95 for the year 1942, and these items were certified for collection.

The Supreme Court in the Shuster case found that the mortgage loan company was created to act in a dual capacity as owner and trustee, the court stating that as between the bank and the mortgage loan company there was merely a contract relationship, but as between the mortgage loan company and its certificate holders, who were in fact the equitable owners of the assets, there was a relationship of trustee on the one hand and of beneficiaries on the other.

We have examined the record and the facts set forth in the Shuster case, all the stipulations of the parties and the exhibits which are a part of the record, and have reached the conclusion that plaintiff’s predecessor was not a dealer in intangibles during 1941 and 1942, nor during any other period covered by the record before us.

The term, “dealer in intangibles,” is defined by Section 5414-1, G-eneral Code. We think it clear from an analysis of the statute in relation to the facts herein that plaintiff’s predecessor did not come within the purview of this statute. It is stipulated that there were casual or isolated transactions with respect to securities in the hands of the liquidating corporation, but under the statute this is not sufficient for qualification as a dealer .in intangibles.

It might be argued that the directors of the mortgage loan company attempted to exercise the powers of a dealer in intangibles, when according to the record in the Shuster case they sold securities having a value of $202,101.84 and with the proceeds purchased other stocks and securities. The court held that such conduct was ultra vires, and that the directors were guilty of a breach of trust.

In our opinion, the mortgage loan company was strictly a liquidating corporation organized for the sole purpose of realizing as much as possible for the benefit of the depositors, creditors and shareholders of the bank, and at all times it was acting in a trust or fiduciary capacity. In this respect its position was precisely the same as other fiduciaries appointed to liquidate assets, either as assignees for the benefit of creditors or as fiduciaries appointed by a court.

That conclusion is supported by the Shuster case, as indicated by the second, fourth and fifth paragraphs of the syllabus.

The court in the Shuster case, at page 339, said:

“Not only the plan and the contract but the order of the. Court of Common Pleas of Cuyahoga county show clearly that a trust was created for the purpose ■of liquidation and distribution of proceeds to the holders of the certificates of participation.”

We think the essential statutory requirements for a dealer in intangibles as defined by Section 5414-1, General Code, make it clear that one must operate such a business either as a broker for others or individually ■on his own account with a view to profit; that neither ■casual nor isolated transactions are sufficient; and that in case of liquidation only one who is previously •engaged in such business as a dealer in intangibles may have the benefit of the statute during a liquidation.

The plaintiff’s predecessor had not been previously •engaged in the business of a dealer in intangibles. It was not in any sense a successor to the bank. It was a "trustee under an express trust created for a single purpose, namely, to liquidate certain ineligible securities previously held by the bank.

Plaintiff, in oral argument and by way of brief, places great reliance on the case of Lewis v. Mutual Holding Co., 20 Ohio Law Abs., 445, decided by Klinger and Guernsey, judges of the Third Appellate District, ¡sitting by designation in the Seventh Appellate District. We have examined that case carefully and we "find facts which distinguish that case from the instant case. In that case, Klinger, P. J., found as a matter of fact that the charter of the holding company was obtained for the purpose of dealing in intangibles under Section 5414-1, General Code, whereas in the instant case the charter, although broad in its provisions, obviously was not obtained for the same.purpose. Nor does it appear that the holding company •occupied the position of a trustee of an express trust •created by court order, with restrictive powers, as is the position of the mortgage loan company in the in¡stant case. Furthermore, the court in that case seemed to be considering the case on questions of law and, as-the opinion indicates, did not believe it was justified in. reversing the trial court’s finding. For instance at page 446 we find the following:

“As stated before, the record, as well as the finding-of the Court of Common Pleas discloses that during-the tax period in question The Mutual Holding Company was engaged in buying and selling intangibles-in casual or isolated transactions, but under and in accordance with the purpose for which it was incorporated, as shown by the articles of incorporation, and since-no evidence has been offered as to the number or size of transactions necessary to come within the law, we-do not believe this court would be justified in reversing-the trial court’s finding.”

It is our opinion further that the term, “dealer,” implies something more than the authority merely to sell or realize upon assets. It implies also authority to purchase, to barter and to exchange. The mortgage-loan company in the instant case did not possess such authority. This was determined by the Supreme Court-in the Shuster case.

As we interpret the Shuster case, the authority of' the mortgage loan company w-as strictly limited with respect to the use of proceeds of sale of the trusteed assets, when the court said at page 344:

“Under the terms of the plan and contract approved' by the Court of Common Pleas in cause No. 412093,. the mortgage loan company had the following options-with respect to the use of the proceeds of sale of the trusteed assets:

“(a) To reduce the indebtedness to Central United National Bank;

“ (b) To deposit same in the reorganized bank; either in the commercial department or as a savings account, at 2% per cent per annum interest;

“(c) To deposit same in another bank or financial institution;

“(d) Subject to the payment of the Reconstruction Finance Corporation loan, to apply same in fro tanto amounts to the payment of certificates of participation by depositing the cash in an unrestricted account in the bank;

“(e) To purchase certificates of participation as provided in the amended plan; and

“ (f) To distribute the proceeds of sale to certificate holders (subject to payment of any prior lien).

‘ ‘ The doctrine of expressio unius est exelusio alterius applies.”

When the parties in the instant case stipulated that this court should be bound by the facts in the Shuster case, it follows that this court is likewise bound by the law of that case.

Concluding our observations, on the first question presented, we think the findings of the Supreme Court, which fully approved the findings of this court in its affirmance as set forth therein, established the proposition that the mortgage loan company occupied the position of a trustee of a trust for the benefit of beneficiaries named therein; and that it was a liquidating trustee only, with restrictive powers which could not possibly be a qualification for dealer in intangibles under the statute.

Considering the second question raised by defendants herein, we think it was the duty of the plaintiff, feeling aggrieved by the ruling of the tax commissioner, to proceed with the statutory remedies provided for review of assessments. Instead of pursuing the remedies provided by statute, the trustee herein commenced this suit in equity.

By availing himself of the provisions of Sections 5611, 5611-1 and 5611-2, General Code, he could have appealed from the determination of the tax comwiis ■■sioner pertaining to tax assessments to the Board of 'Tax Appeals and therefrom directly to the Supreme Court of Ohio.

It has been held that where the Legislature has provided statutory remedies neither courts of equity nor law have jurisdiction of an action for injunction unless and until the parties have exhausted the remedies ■thus provided.

The plaintiff relies on a general statement of law in 'Ohio Jurisprudence and calls particular attention to the cases of Conn et al., Trustees, v. Jones, Treas., 115 Ohio St., 186, 152 N. E., 897, and Baxter v. Van Houter, Aud., 115 Ohio St., 288, 153 N. E., 266. We think that the position of the plaintiff is untenable under the authorities cited and quoted.

The plaintiff concedes that it is a taxpayer claiming to be liable only as a dealer in intangibles. It is not denying the authority or power of the state to tax in this instance. The dispute, therefore, relates solely to the formula and the measure or amount of the tax. Therefore, the remedy selected, applying for an injunction under Section 12075, General Code, cannot properly be considered by a court of equity in the light of the failure of the plaintiff trustee to pursue and exhaust his statutory remedies.

(We think the decision of this court on the first question, holding adversely to the claim of the trustee that he is a dealer in intangibles is dispositive of the issue herein. But whether our holding is correct in this respect, it is our conclusion that the Common Pleas Court was without jurisdiction to entertain the petition of injunction in the first instance, and this court similarly is without jurisdiction so to do on appeal.

For the reasons stated a decree will be entered ia favor of the defendants appellants.

Judgment for defendants^

Morgan and Skeel, JJ., concur.

       The Supreme Court in that ease affirmed the decree of the Court of Appeals of this district (No. 18025, decided June 23, 1941, without a written opinion).

       For brevity and convenience The North American Trust Company will hereinafter be referred to as the “bank,” The North American Mortgage Loan Company as “mortgage loan company,” plaintiff appellee as “plaintiff” and defendants appellants as “defendants,” as they appeared in the trial court.

       Section 710-89a, General Code.

       See case of Shuster v. North American Mortgage Loan Co., No. 18025 on docket of this court, decided June 23, 1941,— decree affirmed by the Supreme Court (139 Ohio St., 315).

       Section 5414-1, General Code. “The term ‘dealer in intangibles’ as used in this chapter includes every person who keeps an office or other place of business in this state and engages at such office or other place in the business of lending money, or discounting, buying or selling bills of exchange, drafts, acceptances, notes, mortgages or other evidences of indebtedness, or of buying or selling bonds, stocks or other investment securities, whether on his own account, with a view to profit, or as agent or broker for others, with a view to profit or personal earnings. Said term as so used excludes institutions used exclusively for charitable purposes, insurance companies as defined in this chapter and persons engaging in the business of receiving deposits as defined in this chapter and herein designated as ‘financial institutions.’ Neither casual or isolated transactions of any of the kinds enumerated in this section, nor the mere investment of funds as personal accumulations or as business reserves or working capital shall constitute engaging in business within the meaning of this section; but a person who, having engaged in the business of lending money or discounting, buying, or selling bills of exchange, drafts, acceptances, notes or mortgages, or other evidences of indebtedness on his own account, remains in business for the purpose of realizing upon the assets of such business shall be deemed a dealer in intangibles though not presently. engaged in lending money or discounting or buying such securities.”

       Section 5370, General Code, which provides as follows:
      “* * * taxable property belonging to the persons named or indicated shall be returned by the fiduciaries named:
      “* * * and that of persons whose assets are in the hands of receivers, assignees for the benefit of creditors, trustees in bankruptcy or official custodians, by such receivers, assignees, trustees in bankruptcy or official custodians.”
      In Section 5366, General Code, defining the word, “taxpayer,” it is said that the word, “taxpayer,” means any owner of taxable property and includes “fiduciaries appointed by any court in this state or having title, possession or custody of taxable personal property in this state or engaged in business in this state.”

       “2. It is the-duty of a trustee appointed to liquidate assets to proceed as expeditiously as sound business judgment -permits. In the absence of specific authorization to the contrary, such trustee has no right or authority to invest the proceeds of sale of such assets in the hope of realizing greater value thereby.
      “4. Where a corporation is organized for the purpose of liquidating frozen assets for the benefit of former bank depositors, the directors of such corporation must personally account for their participation in any breach of the terms of the trust.
      “5. The power to sell trust assets does not include or imply the power to dispose of same by exchange or barter.”

         Bashore v. Brown, Treas., 108 Ohio St., 18, 140 N. E., 489; City of Cuyahoga Falls v. Beck, 110 Ohio St., 82, 143 N. E., 661; Hammond, Treas., v. Winder, Recr., 112 Ohio St., 158, 147 N. E., 94; Wagner v. Messner, Aud., 136 Ohio St., 514, 26 N. E. (2d), 1018; Gorham Mfg. Co. v. Tax Commission of New York, 266 U. S., 265, 269, 69 L. Ed., 279, 282, 45 S. Ct., 80, 81.

       “Injunction to restrain the collection oí taxes may be sought under G. C. Sec. 12075, where the issue involves the very power to lay the tax, as distinguished from questions as to valuation or amount oí assessment, without first proceeding under G. C. Sec. 5611-1, 5611-2, and 5616, which provide for review by the county board of revision, appeal to the state tax commission, and review of its finding by the courts, as such remedies are concurrent, whereas the fundamental question is judicial.” 38 Ohio Jurisprudence, 1209, Section 393.


text:
    In re Adoption of Burdette: Gills, an Infant, Appellant, v. Burdette et al., Appellees.
    (No. 3945
    Decided August 4, 1948.)

      Mr. Carl M. Myers, for appellant.

      Messrs. Eerberich, Rowley é Taylor, for appellees.
   Hunsicker, J.

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

Norma Gills, a minor unwed mother, was delivered of a girl child on August 15, 1947, in the Peoples Hospital of Akron, Ohio.

On August 16, 1947, Norma and her father, Homer Gills, signed and acknowledged an answer and consent to adoption. The witnesses to the acknowledgment were Geo. A. Palmer, the attending physician, John G. Rowley, attorney for the petitioners to adopt, and Mrs. O. H. Gills, wife of Homer and mother of Norma. Norma and her father then signed a waiver of notice as to “all future hearings relative to the aforesaid adoption matter.”

On August 20, 1947, Donald Allen Burdette and Thelma Mae Burdette, husband and wife, filed in the Probate Court a petition for adoption of Norma’s daughter, the answer and consent of Norma and her father, together with the waiver which Norma and Homer Gills had signed. At the same time a journal entry, approved by the court, was filed, appointing a next friend and setting September 23, 1947, as the date for a hearing on the petition.

The report of the next friend was filed on September 19, 1947, recommending the adoption.

On September 23, 1947, a copy of the notice of hearing and examination was filed, accompanied by the affidavit of John G. Rowley, which affidavit stated that he had on August 22, 1947, served a true copy of the notice “by personally handing the same to Norma Gills, a minor seventeen years of age.” To this copy of the notice was attached a post office department return receipt of registered mail signed by Norma Gills and dated August 22, 1947.

On September 23, 1947, the Probate Court, by journal entry, found. that an illegal placement of the infant child had been made, but approved the placement and granted to the petitioners an interlocutory order of adoption.

On December 16, 1947, Norma Gills filed a motion in Probate Court to withdraw her consent to adoption. On January 20, 1948, an amended motion to set aside the interlocutory order of adoption and to strike the consent from the record was filed.

On May 1, 1948, the Probate Court, by journal entry,, denied Norma Gills’ application to withdraw her consent, overruled the amended motion of January 20,. 1948, and confirmed the interlocutory order of September 23, 1947.

A motion for a new trial, filed May 1, 1948, was overruled, and notice of appeal to this court was then filed by Norma Gills, by her mother and next friend, Myrtle Gills, claiming that the Probate Court erred in the following respects:

“(1) The so-called answer and consent of the said Norma Gills was signed four (4) days before any petition for adoption was filed. The court below found1 that the answer and consent was proper even though no case was pending at the time.

“(2) Norma Gills contended that the answer and consent was blank at the time that she signed the form submitted to her. Appellant contends that the signing of a blank form was a nullity, the lower court held the answer and consent proper.

“ (3) The said Norma Gills did not appear in court and sign her consent nor did she sign it in the presence of ‘next friend,’ as provided by statute.

“(4) The trial court held that she neither had to appear in court nor to sign it before the next friend, although it is admitted in the facts that Norma Gills was in the hospital at the time she signed the alleged answer and consent, and was physically not able to appear in court.

“ (5) The said alleged answer and consent was not witnessed by the statutory next friend as required by Section 10512-14 (2) (a).

“ (6) The alleged answer and consent was signed' by Norma Gills, who is an infant. The court found that it made no difference whether she was an infant or an adult..

“(7) The court erred in finding that proper notice for the hearing on September 23, was had on Norma Gills, an infant.

“(8) The court found that Norma Gills was properly served with notice, although by agreement the facts are that no notice was left with her, but was taken away by the attorney for the adopting parents.

“(9) That the court erred in finding that proper service was had of the September 23rd hearing, although the father of said Norma Gills was not served as the next friend of an infant. •

“(10) Although the statute provides that if the child is placed in the home of the petitioners after the petition has been filed, a supplemental petition must be filed in accordance with Section 10512-12, the court totally ignored this section, and did not fix a later date for a hearing upon a supplemental petition that should have been filed.

“(11) Other errors apparent upon the face of the'' record, prejudicial to the rights of the said Norma-Gills.”

In this appeal on questions of law, we must bear in mind a fundamental principle, i. e., the judgment and findings of the trial court may be set aside or reversed only if they are contrary to the manifest weight of the evidence or are contrary to law. Where the evidence is conflicting, it is the duty of the trial court to .weigh the evidence and determine what inferences should be drawn. Therefore, a judgment based upon conflicting evidence may not be set aside by a reviewing court as against the manifest weight of the evidence, where the judgment is supported by competent evidence presented to the trial court.

The problems for our determination in this case are:

(1) Can a consent to adoption be executed before a petition to adopt is filed?

(2) Must a minor parent of an illegitimate child give consent only in the presence of the “next friend” or in open court?

(3) Can a minor parent of an illegitimate child give consent to adoption of her child?

(4) Can a consent to adoption be withdrawn by the party giving consent, after an interlocutory order of adoption has been entered on the journal of the court?

■ (5) Was Norma Gills properly served with notice of the hearing had on September 23, 1947?

(6) Was it necessary to file a supplemental petition where (a) the trial court found that there had been an illegal placement of the child, (b) there was evidence that the petition had been added to at the time of filing by someone other than the petitioners or their counsel?

“* * * adoption was unknown to the common law of England; and in states whose jurisprudence is based on that system, the right exists by virtue of the statutes.” Sommers v. Doersam, 115 Ohio St., 139, at page 148, 152 N. E., 387. See, also, Blaustein v. Blaustein, 77 Ohio App., 281, 283, 66 N. E. (2d), 156.

The General Assembly enacted, effective January 1, 1944, House Bill No. 279 (120 Ohio Laws, 434), which was an act “to revise the laws of the state of Ohio, relative to adoption and to establish an ‘adoption code,’ and to repeal Sections 10512-9 to 10512-23, inclusive. ’ ’

By that enactment, the former adoption statutes were repealed, and there was provided a complete proceeding for adoptions. Thereafter, certain of these adoption statutes were amended by changing the form of procedure and by defining the terms used in such statutes. 121 Ohio Laws, 448. Sections 10512-9, 10512-11, 10512-12, 10512-13,-10512-14, 10512-16, 10512-17,10512-18 and 10512-20, General Code.

The questions will be considered in the order in which they have been raised.

(1) Section 10512-14 provides that a verified or acknowledged written consent to adoption shall be filed with the court before a final decree or interlocutory order of adoption is entered of record. Nowhere in the adoption statutes is there a requirement that the consent shall be executed or secured after the filing of a petition. It certainly would be unwise for a petitioner to apply for adoption of a child unless he knew that a consent had been obtained. One does not seek to adopt a child that is not a subject for adoption. The obtaining of the consent before a petition is filed is not unlawful.

(2) Section 10512-14 (2) (a), in part, provides:

“The mother of an illegitimate child shall be considered for purposes of this section to be the sole parent and may give such consent alone * * *; if such mother is physically unable to appear in open court to execute such consent, she may execute such consent in the presence of the next friend.”

That provision requiring the filing of consent does not say that the consent must be given in open court, although such method would be proper.

The provision referred to is not for an appearance in open court or that such consent must be executed in the presence of the next friend. No exclusive method of executing the consent is required by the statute, and, where the consent is in writing, verified or acknowledged, and then filed in the court, the terms of the statute have been complied with.

(3) The adoption statutes do not specify that a parent shall be of full age when the consent to adoption is executed. It is a matter of common knowledge that many children are born to parents who have not arrived at their majority. It must be assumed that when the General Assembly, in Section 10512-14 (2), used the words, “adult or minor,” in referring to the person giving consent, it meant that a minor parent could execute a consent to adoption.

(4) Section 10512-14 reads, in part:

“Such consents shall be applicable only to the specific adoption proposed by the petition. Such consents may not be withdrawn after the entry of an interlocutory order, or after the final decree, of adoption. ’ ’

The trial court found no fraud, deceit or duress which might have vitiated the consent. What the trial court did find was that the party giving consent changed her mind. In such a situation the statute controls, and, therefore, the consent could not be withdrawn after the entry of the interlocutory decree.

(5) Section 10512-12 provides that “the court shall fix a day for hearing * * * and shall cause notice to be given to the guardian of the person of such child, if any, and to the parents or parent of the child * * *.”

The statute does not require a summons but only notice to be served on the parent. The evidence is conflicting, but we do know that Norma Gills, the mother of the infant, signed a receipt of notice. The attorney for petitioners gave the notice to her in an envelope which he said she opened and gave back to him, and which she says she returned to him- at his request without opening it or reading it. It is certain from the evidence that she knew there was to be a hearing on the petition to adopt. The court found from the conflicting evidence that Norma Gills had notice of the time of the hearing. However, in.her desire to not know who was seeking to adopt her child, she did not retain the written notice. Her return to the attorney of the paper on which the notice was printed' did not invalidate the fact of notice.

The word “notice” is defined in Webster’s New International Dictionary (2 Ed.) as “1. Information;, intimation or warning, esp. of a formal nature; announcement * * “Notice” is used in the statute as a means of advice or information in writing, to apprise a person of some court proceeding. See Section 10501-21, General Code, as amended September 29, 1945.

The finding of the trial court on this point is not contrary to law.

(6) The appellant, Norma Gills, says that a supplemental petition should have been filed, since the child was placed with petitioners after the petition was filed in the Probate Court, which court made a finding of illegal placement.

Section 10512-11 is, in part:

“# * * when the child enters the home of the petitioner after the filing of the petition such information respecting the placement shall forthwith be furnished to the court by a supplemental petition.”

Before the amendment of Section 10512-16, effective January 1,1946, it read in part: “If the Probate Court finds that a child * * # was placed in the home of the petitioner in violation of the laws * * * it shall certify a copy of such finding to the Juvenile Court * * (Italics ours.) This section was then amended— changing, among other things, the word shall to may, and permitting the Probate Court to approve or disapprove of such placement.

The Probate Court in the instant case found an illegal placement, but also gave its approval of this placement for the purpose of adoption.

No supplemental petition is required to be filed after a finding of illegal placement.

The petition, which was filed on August 20, 1947, says that the child entered the home of the Burdettes on August 20, 1947; the report of the investigator “next friend” says that the child entered the Burdette home on August 21, 1947. Counsel for petitioners say that they did not include in the petition the date when the child came to the Burdette home, so we cannot determine who made this insertion and whether before or after filing.

The record does not disclose when the child left the hospital. The mother, Norma Gills, testified she left the hospital five days after the birth, which was August 15, 1947, that is to say, she left on August 20, 1947, and a reasonable inference is that the child was taken on the same day. It was never seen by Norma, but was in the Burdette home from the time it came from the hospital.

The finding of illegal placement did not refer to this, disparity of dates as to when the Burdettes got the child, but to the violation of the laws regarding placement of children in foster homes. Section 1352-13, General Code.

The purpose' of the supplemental petition is to bring before the court information as to a placement made in the home seeking adoption, after the petition is filed. The Probate Court had before it the petition, the report of “next friend” and the evidence. There is no bill of exceptions to show from what evidence he reached the judgment of approval, and there has been no appeal taken from that order. It must be assumed that all the facts were before the trial judge, and that he determined from those facts that no supplemental petition was required.

We have examined all the claimed errors, and find none prejudicial to the rights of the appellant.

Judgment affirmed.

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


author: Miller, J.

text:
    Snyder, Appellant, v. McClelland, Admr., et al., Appellees.
    (No. 4076
    Decided February 19, 1948.)

      Mr. Frank N. R. Redfern, Mr. Lawrence Ramey and Mr. James M. Hengst, for appellant.

      Mr. David H. Thomas and Mr. Theodore Gregg, for appellees.
   Miller, J.

This is an appeal on questions of law from tie Probate Court, in a proceeding to determine the heirs of Raymond Hopkins, deceased. The application was filed by David L. Snyder who claims to be the natural son of the decedent. The plaintiff alleges that seven other persons named in the petition ■claim to have interests in the estate as heirs next of kin. The prayer is that the court determine who the heirs of the decedent are.

There is no conflict of claims between the seven defendants, and the only question for the determination of the court is whether David L. Snyder is the son of Raymond Hopkins, deceased. The conflict is between David L. Snyder who claims to be the sole and only heir and the other answering defendants who claim to be the only heirs to the estate.

The record discloses that David L. Snyder was born while his mother was married to a person other than the deceased, to wit, Fred Snyder; that the husband of the plaintiff’s mother lived in the same vicinity in which the mother lived at the time of the conception ■of plaintiff. When plaintiff was a year or two old his mother divorced her husband and procured an order •of alimony for the support of the plaintiff and another child. When the plaintiff was about six years old his mother married the decedent and both of the children were kept in the new household. The record discloses also that the plaintiff’s mother some years later brought an action for divorce from Raymond Hopkins, ■deceased. The petition contains the allegation that no children had been born as the issue of such marriage.

During the course of the trial, evidence was offered by the plaintiff which purported to show that the deceased admitted that the plaintiff was his own son, this admission not being made in the presence of a third party. This evidence was not admitted by the trial court.

The first assignment of error is directed to that ruling. We are of the opinion that such declaration if made by the decedent to a third party would not be a privileged communication within the purview of Section 11494, General Code, subdivision 3 of which provides that communications between husband and wife during coverture are privileged unless made in the known presence or hearing of a third person competent to be a witness. We have been unable to find that such rule is applicable in the case of any other admissions or declarations. In Second National Bank of Bucyrus v. New First National Bank of Columbus, 7 Ohio App., 68, the rule as to admissibility of declarations or statements of another was declared to be as follows:

“Declarations or statements of another are admissible in evidence in an action between third parties when it' appears, first, that the declarant is dead; second, that the fact declared of is in relation to a matter concerning which the declarant was immediately and personally cognizant; and, third, that the declaration is at variance with the interest of the declarant. ’ ’

In 31 Corpus Juris Secundum, 1152, Section 369 et seq., the proof and effect of admissions is discussed without any reference to any requirement that a third person must be present when admissions against interest of a deceased are made. On page 1153, ibid., Section 370, the general rule is' stated as. follows:

“Oral admissions may be proved by any competent witness who heard them, or' by declarant himself.

“Generally a party’s statements against interest may be proved by other witnesses. An oral admission may be proved by questioning the party making it with respect thereto, or by any competent witness who heard it, even though the statement was confidential as to him * *

We are, therefore, of the opinion that the trial court committed prejudicial error in rejecting such evidence.

The next assignment of error relates to the judgment entry wherein it is said “that plaintiff is presumed by law to be the son of Fred Snyder; that in order to prevail in the claim asserted by plaintiff herein that he is not the son of said Fred Snyder but is the son of Raymond Hopkins, deceased, it is incumbent on him to overcome such presumption by clear and convincing evidence and to prove that Raymond Hopkins clearly and satisfactorily acknowledged him to be his son * * The plaintiff contends that the court erred in finding it necessary for him to overcome the presumption that he is Fred Snyder’s son, by clear and convincing evidence; that heirship is not criminal or quasi-criminal and merely involves property in an estate; that it does not arise during the lifetime of the decedent; and that the court went further than necessary in ruling that it was incumbent upon the plaintiff to prove he is the son of Hopkins, by clear and convincing evidence, in order to rebut the presumption that he is the legitimate son of Fred Snyder. It is contended that such presumption can be overcome by a preponderance of the evidence in such a case. We have been cited to no authority which sustains the plaintiff in his views on this subject, but on the contrary we find the weight of authority is that a child conceived during wedlock is presumed to be legitimate, and this présumption can be overcome only by evidence that is clear and convincing. A recent discussion of this question is found in State, ex rel. Walker, v. Clark, 144 Ohio St., 305, 58 N. E. (2d), 773, where it is said:

“2. A child conceived during the existence of a lawful marital relation is presumed in law to be legitimate — a procreation of the husband and wife.

“3. Such presumption is not conclusive and maybe rebutted by evidence, which must be clear and convincing, that there was no sexual connection between husband and wife during the time in which the child must have been conceived. (Paragraph two of the syllabus in the case of Powell v. State, ex rel. Fowler, 84 Ohio St., 165, overruled.)

* # # * #

“6. In a c0.se of this kind, it is incumbent on plaintiff to prove by clear and convincing evidence that the child is not attributable to her former husband. If she does, the issue of the guilt of the accused under the bastardy complaint may be resolved against him by a preponderance of the evidence.”

Another recent case is that of McGhee v. McGhee, 45 Ohio Law Abs., 465, 64 N. E. (2d), 254, wherein this court held that a child conceived during wedlock is presumed to be legitimate and this presumption can only be overcome by evidence that is strong and convincing.

We find no error in this assignment.

The third assignment of error is that the court erred in finding that the decedent must have clearly and satisfactorily acknowledged plaintiff to be his son. The plaintiff contends that the court went beyond bounds in imposing such a rigid rule upon a mere proceeding to determine heirship which involves property only and no stigma as to immoral 'acts, the person involved being dead.

Section 10503-15, General Code, provides:

“When by a woman a man has one or more children, and afterward intermarries with her, such issue, if acknowledged by him as his child or children, will be legitimate. * * *”

It will be noted that the paternity of the child is the fact to be established before the child can be legitimated. It has, however, been held that an acknowledgment clearly and unequivocally made after the marriage showing the husband’s recognition of such child as his is sufficient to establish the parentage in the absence of clear evidence of nonaccess. 5 Ohio Jurisprudence, 608, Section 59; Eichorn v. Zedaker, 109 Ohio St., 609, 144 N. E., 258.

In Ives v. McNicoll, 59 Ohio St., 402, 53 N. E., 60, 69 Am. St. Rep., 780, 43 L. R. A., 772, the first paragraph of the syllabus reads as follows:

“A child begotten by parents who were at the time not intermarried, and who could not then enter into a legal contract of marriage, may be legitimated under Section 4175, Revised Statutes, by the subsequent legal marriage of the parents and the acknowledgment of the child by the father as his child.”

That case is similar to the one at bar in that the child was conceived and born during a former marriage of the mother. The grounds upon which the court based its decision were: (1) A finding that there was absolutely nonaccess and nonintercourse between the mother and her former husband; (2) a finding that the acknowledging husband of the mother- was actually the father of the child; and (3), in the language of the court, at page 405, “at all times from her birth, in September, 1876, until his death, in December, 1893, Henry McNicoll recognized and acknowledged the said Margaret C. McNicoll' as his daughter, and after his marriage with her mother she resided in the family of Henry McNicoll, who provided for her education and support, and by and in his last will and testament, which was duly admitted to probate, he recognized her as his daughter and named her in his said will and testament as one of his heirs and devisees. ’ ’

See, also, Garner, Gdn., v. B. F. Goodrich Co., 136 Ohio St., 397, 26 N. E. (2d), 203.

In view of those authorities, we hold that the court ■below did not err in holding that it was incumbent on David L. Snyder to prove that Raymond Hopkins •clearly and satisfactorily acknowledged him to be his son. The evidence in all the cases we have been able to find seems to support this rule, even though it is not expressly so stated.

The other assignments of error relate to the findings •of the court as being against the manifest weight of the evidence, which we cannot pass upon at this time for the reason that we find prejudicial error in the record as hereinbefore stated.

The judgment is reversed and the cause is remanded for a new trial.

Judgment reversed.

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


author: Hildebrant, J.

text:
    Shaffer, Appellee, v. Prudential Ins. Co. of America, Appellant.
    (No. 6941
    Decided April 19, 1948.)

      Mr. Floyd Anderson and Mr. W. Charles Sulau, for appellee.

      Mr. Harry E. Marble, for appellant.
   Hildebrant, J.

This is an appeal on questions of law from a judgment entered pursuant to the verdict of a jury finding plaintiff, entitled to the permanent and total disability benefits mentioned in a certificate of insurance issued to plaintiff by the Kroger company, under a group policy issued by the defendant.

Motions for judgment for defendant made at the close of the plaintiff’s case and renewed at the close of all the evidence, and for judgment non obstante veredicto were overruled by the trial court.

The policy provided:

‘ ‘ The disability benefits. hereinafter specified will be granted by the company if any person insured hereunder shall become totally and permanently disabled from bodily injury or disease, to such an extent as to be incapacitated from engaging in any occupation for remuneration or profit,

“Provided,

“(a) that the company shall have received due proof that such disability exists and that such disability will continue for the entire after-lifetime of such person, and further, if premium payments on account of the insurance of such person shall have ceased, that such proof shall have been received not later than twelve months after such cessation; (b) that such disability shall occur while the insurance on such person is in full force and effect and before the sixtieth birthday of such person, and (c) that such disability shall occur after one year from the date when the insurance of such person became effective, except in the case of any person in the service of the employer on the date of this policy whose insurance became effective prior to the expiration of three months from the date of his (or her) eligibility for the insurance hereunder, and except, further, in the case of any person included in any group or class consisting of fifty or more employees hereafter added to the groups or classes insured under this policy, whose insurance became effective prior to the expiration of three months from the date of his (or her) eligibility for insurance hereunder.”

The defense is that due proof of the permanent and total disability was not submitted to the company within 12 months after the cessation of premium payments as required by the policy.

By the pleadings and plaintiff’s evidence, it is established that the last day plaintiff worked was January 31, 1945, but that her salary was paid to February 7, 1945; that plaintiff paid premiums until February 24, 1945, and was finally dropped from the employee lists in May 1945; that the first proof of claim was signed by plaintiff on March 21, 1946, transmitted to the Kroger company on March 28, 1946, and received by the defendant on April 11, 1946, which constituted the first notice of the claim to the defendant; and that such proof of claim was received more than 12 months after cessation of premium payments. Plaintiff seeks to excuse the delay in submitting proof by claiming she was not advised by her physicians until February 20, 1946, that they considered her totally and permanently disabled.

The record discloses that for many years plaintiff had been required to wear a brace due to an áttack of polio, that she suffered a fall in her room in November 1944, that her condition thereafter became such that she was required to give up her work on January 31, 1945, that her physicians at that time and in the months immediately thereafter were of the opinion she was permanently and totally disabled, and that, while the record is not crystal clear that they so advised her at such time, she thereafter certainly had every reason, in spite of a courageous spirit and desire to continue her work, to suspect that she might be unable to do so. Plaintiff alleges in her petition that the certificate of insurance containing the disability provisions was issued to her by the Kroger company in July 1943, so that she is definitely charged with knowledge thereof..

The provision requiring due proof within 12 months after the cessation of premium payments is a valid and binding requirement and is of the essence of the contract. Her failure to comply therewith would therefore preclude recovery. Krasny v. Metropolitan Life Ins. Co., 143 Ohio St., 284, 54 N. E. (2d), 952.

It, therefore, appears that the motions for judgment for the defendant should have been sustained, and that the judgment entered is contrary to law.

The disability provisions under scrutiny here are clear and unambiguous, so that the following quoted first paragraph of the syllabus to the case of Rose v. New York Life Ins. Co., 127 Ohio St., 265, 187 N. E., 859, seems applicable:

“Where the meaning of a contract of insurance against loss resulting from total and permanent disability can be fully and'clearly ascertained from the words of the contract itself, the court may not resort to surrounding circumstances or the conduct of the parties for aid in its interpretation.”

It follows that the trial court erred in the admission of evidence objected to by the defendant.

Specific objection was recorded to that part of the general charge, wherein the court said:

“But if she became disabled during that employment and if she did file her claim within the time of one year after she became aware of the disability, then she would be entitled to recover.”

The effect of that charge is to alter the contract between the parties, which the court cannot do. State, ex rel. Curran, Gdn., v. Brookes, Jr., et al., Board of Trustees, 144 Ohio St., 582, 60 N. E. (2d), 62, wherein it is stated in the first paragraph of the syllabus :

“A court can neither create a legal right or its subject matter, a legally protected interest, nor arbitrarily fix the time when such right shall accrue. Courts can only declare and enforce legal obligations and redress injuries resulting from invasions of legal rights. The law applied to essential facts creates a legal right, and a legal right accrues as soon as such essential facts become existent.”

No further errors, prejudicial to defendant, are apparent on the record.

Prom the above it follows that the judgment must be reversed and final judgment entered in this court for the defendant.

Judgment reversed.

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


text:
    The State, ex rel. Helsel, a Taxpayer, Appellant, v. Board of County Commrs. of Cuyahoga County et al., Appellees.
    (No. 20759
    Decided January 12, 1948.)

      Messrs. Sindell S Sindell and Messrs. Schweid, Snyder, Torbet S Zucker, for appellant.

      Mr. Frank T. Gullitan, prosecuting attorney, Messrs. Squire, Sanders <& Dempsey and Mr. Ralph Edwards, for appellees.
   By the Court.

This action in equity for injunctive relief comes to this court on appeal on questions of law and fact from a judgment of the Common Pleas Court wherein a finding and decree were entered for defendants.

Essentially this is an action involving the right of the power of eminent domain in • the appropriation to public use of land, buildings and other facilities for county airport purposes in pursuance of a vote of the people of the county authorizing the issuance of bonds in the sum of $510,000 for such purpose.

Plaintiff is a resident and taxpayer of the county and the owner of real property in the village of Richmond Heights, and brings this action on behalf of himself, on behalf of the county, on behalf of the villages of Richmond Heights and Highland Heights, on behalf of all taxpayers of the county and on behalf of all property owners and residents of such villages.

Defendants are the board of county commissioners, the county treasurer, the county auditor and CurtissWright, Inc., a Delaware corporation duly authorized to do business in the state of Ohio.

The pertinent part of the prayer of plaintiff’s petition is:

“* * # that upon final hearing hereof the court order the defendant corporation to refund the $200,000 to the defendant board, and that the defendant board, be ordered to convey the land herein involved to defendant corporation; that the notes involved herein be declared null and void and be therefore cancelled, and that the defendant board be ordered to refund to the banks the monies loaned by them; that the public officials involved be enjoined from advertising, issuing or selling bonds to obtain funds for the financing of the hei’einabove described transaction; that the plaintiff be awarded attorney fees, Ms costs herein and such other and further relief as this court deems him entitled to under the circumstances and facts of the case.”

The parties have filed a stipulation in this court, the substance of which is as follows:

“First: That this appeal shall be heard and determined upon a transcript of the evidence and proceedings in the Common Pleas Court and filed herein, except for the additional evidence hereinafter set forth, if admissible, and second: That the plaintiff appellant proffers as additional evidence in this court a letter written subsequent to the trial, from George W. Vest, regional administrator of the civil aeronautics administration of the federal government to Mr. Proctor Nye, commissioner in the department of public properties of the city of Cleveland, under date of April 14, 1947, a copy of which is hereto attached and marked ‘Exhibit A’ the defendants, however, reserving objections which they make to the admissibility of said letter while admitting its genuiness.”

The objection of defendants to the proffer of the letter is overruled and the same is admitted in evidence in this court. This court also admits in evidence exhibit 45 entitled ‘ ‘ Cleveland Regional Airport Plan” which exhibit was excluded by the trial court.

The property sought to be acquired by the board of county commissioners consists of approximately 274 acres of land with buildings thereon, owned by the defendant, Curtiss-Wright, Inc. The record shows that this property had been purchased by CurtissWright, Inc., and had’been partially developed and used by such corporate defendant as an airport up to the year 1932.

There is evidence in the record tending to show that in the purchase and development of the property as an airport, Curtiss-Wright, Inc., expended approximately $600,000. The record shows also that the property is now being acquired by the county for the sum of approximately $200,000.

The plaintiff claims that the acts of the county commissioners and other public officials in the acquisition of this property for the purposes of an airport constitute a gross abuse of discretion tantamount to fraud.

We have carefully examined the entire record including the evidence and proceeding’in the Common Pleas Court and the additional evidence in this court and we find no evidence of any kind indicating fraudulent conduct on the part of the board of county commissioners or other defendants in this action.

So far as the value of the land is concerned, there can be no reasonable claim of fraud by way of excessive expenditure when the price to be paid by the county is approximately 1/3 of the estimated original cost of acquisition and development of the property 16 years ago.

We have given careful consideration to all the issues raised by the pleadings including the question of the constitutionality of Section 2433-2, General Code, which confers authority upon counties to own and operate airports, the question of whether the zoning-ordinances of the village of Richmond Heights and Highland Heights supersede the right of eminent domain exercised by the state or the county .as a subdivision thereof; the question of whether the injunction issued in the case of Swetland v. Curtiss Airports Corp., 55 F. (2d), 201, 83 A. L. R., 319, is an insurmountable impediment to the acquisition of the property by the county as claimed by the plaintiff; and the claim of the plaintiff that the county plans to use the airport for private purposes, and as well as the other allegations of plaintiff’s petition.

We have also given careful consideration- to the arguments of counsel presented orally and by way of able and exhaustive briefs.

We find that we are in full accord with the judgment of the Court of Common Pleas for the reasons set forth in the opinion of the trial judge, wherein the questions of fact and propositions of law applicable thereto are fully and ably discussed. We think that nothing would be gained by a repetition of this discussion. However, we think it is well to emphasize the proposition that it does not lie within the province of judicial authority to substitute its judgment for the judgment of administrative boards acting within the bounds of delegated authority and proper discretion. It is only when there is a gross abuse of discretion or a want of constitutional or necessary statutory authority that the judicial branch of the government may intervene by the injunctive process. We see no cause for such intervention in the case at bar.

Therefore, a finding and decree will be entered for appellees on all issues and a journal entry may be prepared accordingly.

Decree for appellees.

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


author: Wiseman, P. J.

text:
    Gehring et al., Appellees, v. Swoll et al., Appellants.
    (No. 1945
    Decided November 18, 1947.)

      Mr. William A. Swaney, for appellees.

      Mr. Daniel L. Dwyer, for appellants.
   Wiseman, P. J.

This is an appeal on questions of-law from a judgment of the Common Pleas Court of Montgomery county, Ohio, affirming a judgment for "the plaintiffs rendered by the Municipal Court of Dayton.

The defendants, appellants herein, assigned as error that the judgment is contrary to law and is not sustained by sufficient evidence. The action is one in forcible entry and detainer. The sole question for determination is whether the notice to leave the premises which is required to be served on the tenant under the provision of Section 10451, General Code, may be ■served by registered mail. The case was tried on an ■agreed statement of facts in which it was stipulated that a copy of the notice to leave the premises was ■served by registered mail. The facts in this case and the legal questions raised are on all fours with the case of Nunlist v. Motter, 81 Ohio App., 506, decided by this court on the 17th day of November, 1947. For .a detailed discussion of the facts and the question of law reference is made' to the opinion of the court in that case.

In the case of Nunlist v. Motter, supra, this court held: The notice to leave the premises which is required to be served on the tenant under the provisions of Section 10451, General Code, may be served by registered mail; that where the notice to leave the premises is sent by registered mail with a return receipt requested and thereafter the receipt bearing the signature of the defendant is returned, a prima facie case is established of the fact of delivery of the notice to the defendant personally by the post office department; that the United States mail was the agent of the plaintiff in making service on the defendant; and that both provisions of Section 10451, General Code, relative to the mode of service are effectually complied with where an envelope containing the notice to leave the premises is delivered to the defendant personally at the defendant’s residence by a United States Post Office employee.

In the case at bar both the Municipal Court and the Court of Common Pleas held that registered mail service was valid.

Finding no error in the record the judgment is affirmed. The case is remanded for further proceedings according to law.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Hornbeck, J.

text:
    Eshelman, Appellee, v. Wilson, Appellant.
    (No. 1973
    Decided April 26, 1948.)

      Messrs. Myers, Leyland & Patterson, for appellee.

      Messrs. Landis, Ferguson, Bieser & Greer, for appellant.
   Hornbeck, J.

This appeal is on questions of law from a judgment for the plaintiff entered on a verdict •of a jury. The action was for damages for personal injuries claimed to have been suffered by plaintiff when ■struck by the automobile of defendant.

The essential facts are that plaintiff and defendant, together with other women, were in attendance at a ■social gathering and defendant had transported plaintiff to and from the place of the meeting. Preparatory to beginning the return trip, the defendant took her place to the left, back of the wheel, another guest to her right and the plaintiff to the extreme right of the front seat. The defendant had some difficulty in finding her keys, whereupon the plaintiff alighted from the Automobile and stepped away from it about two feet. The automobile had been left in reverse gear and without releasing the brake defendant stepped on the starter with the result that the automobile moved backward for a short distance and stopped. In its-movement it struck and injured the plaintiff.

The petition of the plaintiff was predicated upon the negligence of the defendant in the operation of her automobile. The answer was a general denial and there was no suggestion in either of the pleadings of guest or passenger relationship of the plaintiff. At the conclusion of plaintiff’s evidence, defendant moved for a directed verdict,

“For the reason that the plaintiff has failed to show any wilful or wanton misconduct on the part of the defendant, the evidence showing that she was being-transported in defendant’s automobile from the bridge-game to her home at the time of the injury, and that the injury was due to the operation of the defendant’s-motor vehicle, and it was all within the course of this transportation from one point to another and covered by the guest statute of the state of Ohio.”

The court overruled that motion and the cause was-submitted to the jury upon the theory of plaintiff’s petition. The one error assigned is the refusal of the trial judge to sustain the motion for a directed verdict.

The single question raised on this appeal is whether, at the time of plaintiff’s injury, she was a guest of the defendant. The answer to this question depends upon the construction of the guest statute, Section 6308-6, General Code:

“The owner, * * * responsible for the operation of a motor vehicle shall not be liable for loss or damage arising from injuries to * * * a guest while being transported without payment therefor in or upon said motor vehicle, resulting from the operation thereof, unless such injuries * * * are caused by the wilful or wanton misconduct of such operator, * * * of said motor vehicle.”

The trial judge held, and it is contended here by the plaintiff, appellee, that inasmuch as the plaintiff, at the time she was injured, was not in or upon the motor vehicle of the defendant she was not a guest of the defendant. It is the claim of the defendant, appellant herein, that the section of the Code should not be limited to the requirement that the person transported be in or upon the motor vehicle in which she is riding; but that, inasmuch as the parties had begun their return trip when they took seats in the automobile, and the stepping aside of the plaintiff was only a temporary interruption of the trip, it must be said as a matter of law that the plaintiff was being transported as a guest at the time that she was struck. The claim of the defendant is that the plaintiff, admittedly a guest of the defendant to and from the place of meeting, continued as her guest even as a passenger in a public carrier will be held to be such passenger while in a zone near to the public conveyance preparatory to entering it.

As there is no material factual dispute in the record, the judgment rests entirely upon the proper construction of the guest statute. It is our opinion that the trial judge was correct in his determination of its meaning and its limitation. To hold as the defendant contends would require the elimination from the statute of the words “in or upon said motor vehicle.” It is a rule of construction that every word in a statute shall be given meaning, if possible. The plaintiff ■was neither in nor upon the motor vehicle of the defendant at the time she was struck and was not, within the meaning of the controlling statute, a guest of the defendant.

Counsel have been helpful in the collation of authorities which have any relation to our question. Admittedly, there is none in point in Ohio.

Massachusetts, which has no statutory guest law ¡but which has evolved a like, principle from the common law, supports the claim of the defendant that one may be a guest of the operator of an automobile while in the venture of the transportation although not in or upon the motor vehicle. Thus, in Bragdon v. Dinsmore, 312 Mass., 628, 45 N. E. (2d), 833, 146 A. L. R., 680, where defendant motorist had arranged gratuitously to transport plaintiff and his wife to a hall and thereafter defendant was to drive plaintiff and his wife home, and, as defendant was parking his automobile at the hall, he caused the automobile to strike plaintiff who had alighted to direct defendant, it was held that plaintiff’s relationship as defendant’s guest had not ceased at the time of the accident. And in Ruel v. Langelier, 299 Mass., 240, 12 N. E. (2d), 735, it was said that “The degree of automobile owner’s duty to guest does not depend on latter’s physical position or whether she was in or outside automobile when injured, but on whether owner’s act, claimed to be negligent, was performed in course of carrying out gratuitous undertaking assumed.”

The defendant was taking four women to their homes. He attempted to start his automobile in the snow and finding that he could not do so, requested that someone get out and push. The plaintiff did so and was injured. A significant statement is made in the opinion in this case at page 243:

“Our attention is also called to the definition of ‘guest occupant’ inserted in G. L. (Ter. Ed.) c. 90, Section 34A, by St. 1935, c. 459, Section 1, whereby the meaning of those words in the compulsory insurance law is limited to persons ‘being in or upon, entering or leaving’ the vehicle. But that statute merely affects the scope of compulsory insurance coverage and does not purport to change established principles of liability for negligence.”

It would seem, a fortiori, that if Massachusetts had a statute such as Ohio, limiting a guest in negligence cases to one who is being transported without payment therefor in a motor vehicle, the court would have reached a different judgment. Another Massachusetts case grounded upon the same principle as the two cases just cited but which might be determined in the same way in Ohio is Adams v. Baker, 317 Mass., 748, 59 N. E. (2d), 701. The plaintiff, riding as a gratuitous guest, was alighting from the automobile when injured. She had one foot on the running board of the car and the other in a hole of concrete. The writer of the opinion said:

“Upon the evidence the jury would have been obliged to find that the plaintiff was partly in or upon the defendant’s vehicle at the time of the accident # * *.”

Other cited Massachusetts cases are Massaletti v. Fitzroy, 228 Mass., 487, 118 N. E., 168, L. R. A. 1918C, 264, Ann. Cas., 1918B, 1088, and Comeau v. Comeau, 285 Mass., 578, 189 N. E., 588, 92 A. L. R., 1002, neither of which is helpful on the narrow question presented here.

Defendant cites also two Michigan cases, Brown v. Arnold, 303 Mich., 616, 6 N. W. (2d), 914, and Hunter v. Baldwin, 268 Mich., 106, 255 N. W., 431. The Michigan guest statute reads in part, “Transported by the owner or operator of a motor vehicle as his guest,” and does not carry the limiting words found in the Ohio statute. In Brown v. Arnold, supra, the plaintiff who had been a guest of the defendant reached her home which was the end of the trip. She had alighted and taken at least one step away from the vehicle when defendant started it suddenly, causing the rear wheels to skid toward the curb and to strike the plaintiff. The court held that the transportation had ceased and that the plaintiff was not a guest at the time of her injury. Defendant urges that that case is authority by implication for her contention. We do not so read the case, but if it be granted, it would be so determined upon a statute which is materially different from the one controlling the instant cause. The court further referred to decisions relied upon by the defendant which hold that the act of transportation continues while the passenger is alighting and held that such cases had no bearing on the guest relationship.

In the case of Cincinnati Traction Co. v. Holzenkamp, 74 Ohio St., 379, 78 N. E., 529, 113 Am. St. Rep., 980, 6 L. R. A. (N. S.), 800, it is said that the basis of the relation of the carrier and passenger is primarily contractual, and in Pullman Co. v. Roos, 9 Ohio App., 309, that the contract of coverage, so far as it is expressed in a ticket, or otherwise, is implied from the nature of the employment of the carrier. The extension of the relationship of passenger to a zone beyond the common carrier itself has been created largely because of the payment of the passenger for his transportation. The other Michigan case cited by defendant is Hunter v. Baldwin, supra, where the plaintiff had gone to town with the defendant as his guest, the automobile was parked and after being separated for two or three hours, the parties returned to the automobile and at defendant’s request, plaintiff attempted to crank it and to get it started and in so doing was injured. The court held that the plaintiff was not a guest of the defendant at the time of the injury, and, among other things, stressed the fact that because of' the extended separation of the parties and under the circumstances the relation of guest and host had not been resumed. The majority opinion is not especially helpful because it does not discuss the question here presented, but in a dissent by one of the justices the matter is met squarely in this language:

“Plaintiff was a guest on the trip to town, was present as such for the return trip and remained a guest in the operation of the car toward making the return trip, whether in or out of the car.”

This dissent brings into bold relief the distinction in the language of the Ohio and the Michigan guest statutes.

Puckett v. Pailthorpe, 207 Iowa, 613, 223 N. W., 254. That was a case where plaintiff was invited to ride home after a dinner as a guest of the defendant. Before defendant had finished dinner and reached his automobile, plaintiff went to the automobile, intending to sit in it and to wait until the defendant was ready to go home. Upon reaching the automobile, plaintiff took hold of the door handle and it came off, injuring her. The basis of the court’s opinion was that the plaintiff had not yet become a passenger because she was merely entering the automobile for the purpose of sitting in it and waiting until the defendant arrived. The opinion is of little assistance upon the decisive question here.

Plaintiff cites and comments on the following cases which support her claim directly or inferentially. Dorn, Admr., v. Village of North Olmsted, 133 Ohio St., 375, 14 N. E. (2d), 11, paragraph four of the syllabus; Miller v. Fairley, 141 Ohio St., 327, 48 N. E. (2d), 217, paragraph four of the syllabus; Puckett v. Pailthorpe, supra; Brown v. Arnold, supra; Hunter v. Baldwin, supra; Rohr v. Employers’ Liability Assurance Corp., 243 Wis., 113, 9 N. W. (2d), 627; Prager v. Isreal, 15 Cal. (2d), 89, 98 P. (2d), 729; Harrison v. Gamatero, 52 Cal. App. (2d), 178, 125 P. (2d), 904;. Frankenstein v. House, 41 Cal. App. (2d), 813, 107 P. (2d), 624; Smith v. Pope, 53 Cal. App. (2d), 43, 127 P. (2d), 292.

We have examined the' guest statutes in the states where found.

The language of the Ohio guest law is followed in Alabama.

In Cqlorado the guest statute is:

“No person transported by the owner or operator of a motor vehicle as his guest, without payment for such transportation, shall have a cause for damages against such owner or operator for injury, death or loss in case of accident, unless * * V’

Delaware, Idaho, Indiana, Kansas, Michigan, Oregon and New Mexico have similar guest statutes.

South Carolina employs the same language as above-but includes the airship. Texas also carries the language as above but its statutes are restricted to transportation over the public highways.

The California guest law is:

“No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless * * *.”

Nevada and North Dakota have similar guest laws.

The Illinois guest law reads:

“No person riding in a motor vehicle as a guest, without payment for such ride * ■* * shall have a cause of action for damages * * *.”

The Montana guest law is:

“The owner or operator of a motor vehicle shall not be liable for any damages or injuries to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire,” etc.

Nebraska has a similar guest law.

The Utah guest law provides:

“Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the state of Utah, and while so riding as such guest receives or sustains an injury, etc.”

The Vermont guest law reads:

“The owner or operator of a motor vehicle shall not be liable in damages for injuries received by any occupant of the same occasioned by reason of the operation of. said vehicle unless *■*

The Arkansas guest law is:

“No person transported or proposed to be transported by the owner or operator of a motor vehicle as a guest, without payment for such transportation, * # * shall have a cause of action for damages against such owner or operator # * for personal injury, including death resulting therefrom, by persons while in, entering, or leaving such motor vehicle, unless * *

The judgment will be affirmed.

Judgment affirmed.

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