author: Fess, J. Carpenter, J.,

text:
    Krupa et al., Appellants, v. Western Union Telegraph Co., Appellee.
    (No. 4516
    Decided March 26, 1951.)

      Mr. C. William O’Neill, attorney general, and Mr. J. A. Bobenalt, for appellants.

      Messrs. Ohlinger, Roles, Wolf é Flues, for appellee.
   Fess, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court reversing the decision of the Unemployment Compensation Board of Review which allowed the claim for benefits of the individual appellant, Anna Krupa. The claimant, as well as the board, appeals.

Prior to March 8, 1949, claimant had been employed for a period of some six years by the appellee, the Western Union Telegraph Company. On February 8, 1949, she was informed that there would be no more work for her in Toledo after March 8th and that she should decide whether she was interested in a transfer to similar employment in Detroit, Michigan, or whether she would prefer to receive severance pay under the terms of the contract between her employer and the union. On April 11, 1949, she elected to receive her severance pay in the gross amount of $1,160.64.

After her separation on March 8,1949, claimant was unsuccessful in securing other employment. At the time of filing her initial claim on March 16, 1949, she was physically able and desirous of securing work and was available therefor. She had a base-period employment of more than 24 calendar weeks and her highest base-period quarterly earnings exceeded $591. Her claim, initially allowed, was thereafter disallowed by the administrator who found that claimant had elected to receive severance pay and had resigned from the service of the employer; that she was to receive $46.80 per week for 24 weeks and 4 days; and that she was entitled to severance pay until August 26, 1949. The administrator concluded that the claimant had not suffered and would not suffer loss of remuneration during the period covered by her separation pay.

Upon claimant’s appeal to the board of review, her claim was referred to a referee, who after a hearing reversed the administrator’s decision and found claimant eligible to receive benefits under the terms of the initial determination. In so holding, he found that the severance pay she received on April 11, 1949, was for services rendered prior to March 8, 1949; that she rendered no services to the employer after such date so she could receive no remuneration allocable to any period subsequent to March 8, 1949; and that the receipt of severance pay on April 11 did not disqualify her for unemployment compensation.

Thereafter, the application of the employer for leave to institute a further appeal was disallowed by the board, one member dissenting, from which decision an appeal was taken to the Common Pleas Court, which reversed the decision of the board and thereby denied unemployment compensation to the claimant. The journal entry merely recites that the decision of the board that the claimant is eligible to receive benefits is reversed. We may assume, however, that the reversal is based upon the statutory grounds that the decisión was either unlawful, unreasonable, or against the manifest weight of the evidence.

The record of the hearing before the referee consists merely of narrative statements of the claimant and the traffic manager of the employer and certain exhibits. These exhibits disclose that the employer notified the claimant on February 8, 1949, that there would be no work for her in the Toledo office after March 8, 1949. Thereafter, on March 4, 1949, claimant elected to receive severance pay in accordance with the terms of the union contract. ■ Upon her separation from employment, the employer, in accordance with the law, gave her a Bureau of Unemployment Compensation form entitled “separation report” upon which the employer indicated that the reason for separation was “resigned.”

To the report there were attached slips reciting that “this employee last worked on March 8, 1949, but received a legally required severance allowance of 24 weeks and 4 days pay at $46.80 per week until 8-26-49 in lieu of continued employment” and “this employee last worked on 3-8-49 but received in addition to remuneration paid for periods to the last day worked a vacation allowance of $99.16, which is the equivalent of at least full time wages up to and including 3-22-49. ’ ’

On April 11, 1949, claimant signed a receipt for the sum of $1,160.64 in full and complete payment and settlement of all claims of every nature which she might have against the employer and consented that her name be stricken from the employment rolls of the company as of March 8, 1949. The receipt also recited that she had voluntarily elected to receive severance pay in preference to all other options and rights to which her employment entitled her, including transfer, forced reduction furlough, seniority, pension and benefit rights; and that she “hereby voluntarily terminate my employment with the company by voluntarily resigning my position.”

It is stated in claimant’s brief that the traffic manager of the employer, on cross-examination, was unable to explain the basis for the statement attached to the separation slip that the severance pay was given as wages “until 8-26-49 in lieu of continued employment.” Upon this record, however, we must disregard this contention inasmuch as such testimony does not appear in the record.

The union contract, which consists of 49 printed pages, throws no light upon what is meant by severance pay other than a reference in the paragraphs relating thereto to “a lump sum separation allowance.” The separation slip, however, attached as .an exhibit to the record, is some indication of an intention on the part of the employer to regard severance pay as remuneration for the period during which the separated employee performs no services. It is reasonable to assume that the allowance of severance pay was in consideration of length of service of employment since it was computed on the basis of past service and loss of seniority, pension and other benefits which the employee must relinquish incident to the acceptance of such severance pay. It may also be assumed that the purpose of the payment was to tide the separated employee over a possible period of unemployment.

The only provisions of the Unemployment Compensation Act which bear upon the question here involved are to be found in the following sections of the General Code.

Section 1345-1, General Code (122 Ohio Laws, 695), as here relevant, provided:

í i * # #
“d. ‘Benefits’ mean money payments payable to an individual, as provided in the Unemployment Compensation Act, for loss of remuneration due to his unemployment.
Í { * * #
“f. ‘Remuneration’ means all compensation for personal services, including commissions and bonuses and the cash value of all compensation in any medium other than cash. * * *
Í C * # *
“k. An individual shall be deemed ‘totally unemployed’ in any week during which he performs no services and with respect to such week no remuneration is payable to him.” (Italics added.)

Section 1345-7, General Code, as pertinent here, provides :

“a. No benefits shall be paid for any week with respect to which an individual is receiving or has received remuneration in the form of
“(1) Remuneration in lieu of notice * * (Italics added.)

The regulations of the board recite that remuneration in lieu of notice constitutes a continuation of wages for a designated period after termination of employment, and that the period covered by remuneration in lieu of notice is to be considered a period of employment and so reported. Remuneration in lieu of notice normally relates to a situation where an employee is entitled to several weeks’ notice prior to separation. However, when no work is available the employee is separated but his wages are paid to him for the period during which he would be entitled to employment. During such a compensated period of unemployment the employee would not be entitled to benefits.

It will be noted that the employee is entitled to benefits in any week during which he performs no services and, with respect to such week no remuneration is payable to him. He must be unemployed and receive no remuneration from his employer during the period of such unemployment in order to qualify for benefits.

It is the contention of the employer that, inasmuch as it pays a substantial amount by way of severance pay upon which it in turn contributes unemployment compensation, it is unjust to permit a separated employee who receives such a substantial allowance to tide her over the period of unemployment to likewise receive unemployment compensation and thereby affect the employer’s merit rating. On the other hand, if the consideration for the payment of the severance pay is attributable to length of service and loss of seniority, retirement and other benefits, and is not for the purpose of reimbursing an employee for loss of the opportunity to work, the contention falls. However, upon the state of the record in the instant case, where there is some evidence from which it may be inferred that the severance pay was remuneration for the period of unemployment up to August 1949, we can not find and determine that there was prejudicial error in the judgment of the Common Pleas Court reversing the decisions of the referee and the board of review.

Judgment affirmed.

Conn, J., concurs.

Carpenter, J.,

dissenting. I am in accord with the statement of facts and comments in the majority opinion except for the last sentence wherein it concludes that “there is some evidence from which it may be inferred that the severance pay was remuneration for the period of unemployment up to August, 1949.” The only competent evidence on that subject was the contract between the company and the union.

In two instances the record contains statements which are conclusions drawn by someone from the evidence. In the “local claims examiner’s report to the central office,” signed by Genevieve Dale and dated March 31, 1949, there is a finding that claimant was to receive severance pay and the report concludes, “evidently not eligible for benefits to 8-26-49.” On this report the administrator denied the claim for benefits. The denial was reversed by the board of review.

Attached to the referee’s report to the board are two slips referred to and quoted in the majority opinion. One says the severance allowance “was in lieu of continued employment” until August 26, 1949. The other says that claimant had received $99.16 vacation allowance “which is the equivalent of at least full time wages up to and including 3-22-49.” While these two slips are with other similar slips which were properly identified as exhibits and are referred to in the record, no marks of identification appear on them and no reference is made to them in the record. Why they were attached to this record is not apparent to me. However, the statements on these slips being mere conclusions, they are not important unless they can be drawn from the terms of the contract.

In my analysis of the relations of the claimant to her employer, the Western Union Telegraph Company, and her compensation or remuneration rights arising thereunder, I see three sources: (1) Her direct and personal contract of employment under which was defined the work she was to do and the remuneration or wages she was to receive; (2) the contract her union made with the employer for the benefit of her and all other employes; and (3) the statutes of Ohio, particularly the Unemployment Compensation Act.

From the first source mentioned claimant became entitled to the. weekly wages which she received during the period of her employment,

The contract made by the union with her employer (the second source mentioned) contains many stipulations involving remuneration, among which are a provision for two weeks annual vacation with pay and, under section 23, a provision entitled “Technological Displacements.” This provision covers claimant’s loss of employment. Under the provision for technological displacement, there were five options available to claimant, one of which was acceptance of severance pay.

This option is defined in the contract as follows:

“Severance pay. Any employee who has, or who will have, two years or more of company service some time during the year in which the conversion is effected may choose to be paid a lump sum separation allowance. The separation allowance shall be determined on the basis of four weeks’ pay at the regular rate of the position last occupied, for every year of service, and two days’ pay for every month in which the employee worked in any period remaining that is less than a full year. The acceptance by an employee of a lump sum separation allowance under this proviso terminates his service with the company.” (Emphasis added.)

There was some quibbling about how claimant was separated from her employment, due to the fact that in her statement electing to take severance pay, which statement was obviously prepared for her by the company, she said she “resigned.” There is no question that her separation was involuntary and at the instance of the employer because of lack of work for her.

The real question here is: What was her severance pay for? Was it to relieve the employer, indirectly, for the loss that would accrue to it in contributions to the unemployment compensation fund if benefits were allowed to her under the statute for her period of unemployment following her discharge, or was it meant to compensate for the loss of rights and credits that had accrued to her over the sis years and two months of faithful service to her employer?

What did she lose by way of rights and credits?

She lost her seniority rights and accumulated credits under the pension plan which the company, under its contract with the union, provided for its employees. This is made manifest in section 23 of that contract, under which the first option accorded a discharged employee is “acceptance of pension if eligible.” Mrs. Krupa was 26 years and 4 months old when discharged and not eligible for the pension.

Both seniority and pension rights have assumed much significance in modern industrial life because such rights are valuable to employees as a part of their way of life. Wages are geared into large industries, such as this company, with such considerations in mind. Sis years of this young woman’s life were spent working for the Western Union Telegraph Company. When she becomes employed in some other industry her seniority rights and pension credits, if there be such in the industry which employs her, will have to start anew.

To my mind there are some similarities between these credits, particularly the pension rights, in industrial life and the cash surrender value of a policy of a reserve life insurance company.

When by the surrender of the policy the insurer is relieved of obligation to pay the principal sum of the contract, it returns to the insured the reserve built up out of the premiums paid by the insured. So the employer, when relieved of the possible future pension claims of an employee, by the severance pay, returns to him the reserve established for payment of the pension — money which otherwise would have been paid to that employee in wages from week to week, in this case, during a six-year and two-month period.

The judgment as it now stands invalidates the advantages of the union contract made for the claimant and other employees. The union contract waives for her her right to benefits under the Unemployment Compensation Act, something she herself could not do, for Section 1345-9, G-eneral Code, says: “No agreement by an employee to waive his rights to benefits under this act shall be valid * ■*

Can a union do for a member that which he can not do for himself?

It is urged that if this claimant is permitted to take her severance pay and also receive unemployment benefits she will get double pay for a period. If she were successful in getting employment when her service with the company terminated, it might be equally well reasoned that she should refund her severance pay, otherwise she would be getting double pay and would not need the money. The latter suggestion may sound absurd but is no more so than the argument that the severance pay takes the place of the right to benefits to which she would be entitled except for the credit she had built up with the company and received in severance pay. If that pay were so intended, the contract should so provide. Nowhere in it is that even suggested, and the company does not contend that it is.

It is interesting to note that no decision of any court on this question has been cited by diligent counsel. The boards of review of many states have discussed it and are divided on the answer. Some of these decisions, adverse to the allowance of benefits, have been cited and quoted. Some have been by divided boards and in some the reasoning has been exceedingly labored.

The judgment of the Court of Common Pleas should be reversed and the order of the board affirmed.


source: Caselaw Access Project

author: Jackson, J. Guernsey, P. J.,

license: Public Domain

text:
    In re Acton.
    (No. 386
    Decided March 10, 1949.)

      Mr. JRoy Warren Boof and Mr. John L. Boof, for petitioner.

      Mr. Bex W. Hanna and Mr. Charles W. Dodson, for respondent sheriff.
   Jackson, J.

The petitioner, Clyde Acton, instituted a habeas corpus proceeding to obtain his release from the custody of the sheriff of Hardin county, Ohio.

The sheriff of Hardin county, Ohio, obtained custody of the person of the petitioner by reason of extradition proceedings requested by the Governor of the state of Illinois and granted by the Governor of the state of Ohio.

The issues are made by the petition for habeas corpus, the return of the sheriff of Hardin county, Ohio, a certified transcript of the proceedings before the Governor of the state of Ohio, the original papers of the proceedings before the Governor of the state of Illinois, and a demurrer filed by the petitioner.

The demurrer of petitioner asserts nineteen reasons why it should be sustained.

All members of the court are in agreement that all specifications except Nos. 11,12, and 18 should be overruled. Two members of the court, being a majority of the members of the court, are of the opinion that specifications Nos. 11, 12, and 18 should be overruled. Therefore, this opinion is directed to specifications Nos. 11, 12, and 18.

An examination of the transcript of the proceedings before the Governor of the state of Illinois, all of which papers the said Governor duly authenticated, shows that the petitioner, Clyde Acton, was charged by an information with “being the lawful husband of and married to Opal Acton, and that on the 8th day of September 1947, at and within the village of Arthur in the county of Douglas in the state of Illinois did wilfully, maliciously and without good cause abandon the said Opal Acton, and did then and there neglect and refuse to maintain and provide for her, the said Opal Acton, then and there destitute, and in necessitous circumstances, contrary to the statute, etc.”

The Governor of the state of Ohio granted the requisition for the person of the petitioner and ordered the petitioner brought before a judge of a court of record and be dealt with as provided by law, the warrant of the Governor of the state of Ohio requiring the custodian, if directed by said judge, to deliver the petitioner to Vaughn W. Pilcher as the agent appointed by the Governor of the state of Illinois.

The pertinent statute of the state of Illinois as to the offense committed by the petitioner is duly authenticated by the Governor of the state of Illinois and is as follows:

“An act making it a misdemeanor for any person to neglect or refuse, without reasonable cause, to provide for the support or maintenance of his wife, said ivife being in destitute or in necessitous circumstances, or, without lawful excuse, to desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of eighteen years in destitute or necessitous circumstances, to provide punishment for violation thereof and to provide for suspension of sentence and release upon probation in such cases.
“Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly: That every person who shall, without any reasonable cause, neglect or refuse to provide for the support or maintenance of his wife, said wife being in destitute or in necessitous circumstances, or any person who shall, without lawful excuse, desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of eighteen years, in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not to exceed six hundred dollars or by imprisonment in the county jail, house of correction or workhouse, not to exceed one year, or by both such fine and imprisonment.” Laws of Illinois, 1915, 470 (Chapter 68, Section.24).
“If a crime be clearly charged, it will be sufficient notwithstanding the conclusion of the indictment may seemingly be inconsistent with the charge.” 18 Ohio Jurisprudence, 942, Section 16.
“ * * * it is to matters of substance, and not to matters of form, that the court will look * * *.” Ex parte Sheldon, 34 Ohio St., 319, 326.
“It is not necessary that the affidavit upon which the requisition issued should set forth the crime charged with all legal exactness necessary to be observed in an indictment, but it must distinctly charge the commission of an offense.” 18 Ohio Jurisprudence, 944, Section 17. See Thomas v. Evans, 14 O. D., 336, affirmed by the Circuit Court without opinion; In re Herrle, 47 W. L. B., 304.
“* * * a copy of an information, after a preliminary examination and a holding to answer, is entitled to the same weight as evidence, and will, on habeas corpus proceedings, be so considered.” 22 American Jurisprudence, 286, Section 48.

If the jurisdictional facts are recited the warrant is sufficient. 22 American Jurisprudence, 288, Section 51; 25 American Jurisprudence, 159, 162, 192, and 193, Sections 26, 28, 67, and 68; 100 Am. St. Rep., 36, 37, VII, a and b.

“The fact that an indictment or information is lacking in technical precision or is otherwise irregular is not ground for relief by habeas corpus, at least where there is enough on the face of the pleading to charge the defendant with the commission of an offense known to the law. To hold otherwise would be not only to adapt the writ to the ordinary uses of a proceeding in error, but to permit its use to effect an intolerable interference with the ordinary and regular process of criminal prosecutions, and to substitute it illegally for a demurrer or motion to quash.” 25 American Jurisprudence, 172, Section 40.
“The sufficiency of an indictment or affidavit must be tested by the laws of the demanding state.” 25 American Jurisprudence, 195, Section 69. See People, ex rel. Carr, v. Murray, Sheriff, 357 Ill., 326, 192 N. E., 198, 94 A. L. R., 1487.
“ * * * the rule generally approved is that if the indictment or affidavit upon which extradition is sought is available, it may be examined to determine its legality and sufficiency, and the prisoner shall be discharged if it is decided that it does not substantially charge the commission of an offense.” 25 American Jurisprudence, 195, Section 69.
“* * * technical rules of pleading ordinarily applicable in criminal cases are not applicable for the purpose of testing the sufficiency of an accusatory pleading relied upon to justify the holding of a petitioner in habeas corpus for extradition. ’ ’ 25 American Jurisprudence, 196, Section 70. See People, ex rel. Carr, v. Murray, Sheriff, supra.

When the Governor of the asylum state issues his warrant it is prima facie evidence of all that is recited therein. 25 American Jurisprudence, 197, Section 70.

“* * * the fact that the commitment issued by such court or magistrate is informal, defective or erroneous is not a ground which entitles the prisoner to his discharge upon habeas corpus.” 12 Ruling Case Law, 1189, Section 11.

It is said that the statutes of Ohio which regulate extradition proceedings are plain and neither admit of construction nor require construction. In re Williams, 5 Ohio App., 55, 58.

“The Governor of a state, in issuing his warrant of extradition of a fugitive from justice, acts in an executive, and not in a judicial capacity. He is not permitted to try the question whether the accused is guilty or not guilty; he is not to regard a departure from the prescribed forms for making the application, or as to the manner of charging the crime, in any matter not of the substance; and he is not to be controlled by the question whether the offense is or is not a crime in his own state, the inquiry being whether the act is punishable as a crime in the demanding state. Nor have the courts larger powers, in any of these respects, than the Governor.” Wilcox v. Nolze, 34 Ohio St., 520, 523.

The statutes of the state of Ohio pertinent in the instant case are:

• ‘Section 109-3. No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under Section 6 [Section 109-6, General Code], that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon ; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.”
“Section 109-6.o The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in Section 3 [Section 109-3, General Code] with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this act not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom. ’ ’

These provisions of the General Code were followed and observed in every respect in the extradition proceedings, as shown by the records of the proceedings before the Governor of the state of Illinois and the Governor of the state of Ohio.

The above-referred-to sections of the General Code are constitutional and their enactment was clearly within the reserve powers of the state of Ohio. English v. Mattowits, Chief of Police, 148 Ohio St., 39, 72 N. E. (2d), 898.

The demurrer is overruled.

The entire court is also of the opinion that all evidence offered or tendered by the petitioner to show a defense to the crime charged in the requisition, or in mitigation thereof, should not be admitted, as such issues are not within the scope of the inquiry in this habeas corpus proceeding.

It is not the province of the court, on habeas corpus, to pass on the merits of the case as to the guilt or innocence of the petitioner; nor is evidence as to guilt or innocence admissible. 18 Ohio Jurisprudence, 962, Section 33; Ex parte Maloney, 27 O. C. A., 529.

The petitioner is remanded to custody, and his person shall be delivered to Yaughn W. Pilcher, heretofore appointed as agent by the Governor of the state of Illinois to receive the petitioner.

Petitioner remanded to custody.

Middleton, J., concurs.

Guernsey, P. J.,

dissenting. Por the purposes of this case, the return of the sheriff to the writ of habeas corpus, which incorporates a duly certified transcript of the whole of the extradition proceedings, pursuant to which the petitioner, Clyde Acton, is being held in the custody of the sheriff, constitutes an answer to the petition herein, the legal sufficiency of which is raised by the demurrer of the petitioner.

From the transcript of the extradition proceedings, the following facts appear:

The petition for requisition by state’s attorney of Douglas county, Illinois, the requisition by the Governor of Illinois, and warrant issued by the Governor of Ohio pursuant to said requisition each recite that the petitioner is charged with the crime of “abandonment of wife.”

The information upon which the petition for requisition is based charges abandonment of wife and neglect and refusal to maintain and support wife, but it is apparent from the context that neglect and refusal on the part of Clyde Acton to maintain and support his wife are charged solely as an essential element of the purported offense of “abandonment of wife,” and not as an offense in and of itself.

The affidavit in support of the information, among other things, recites that the affiant wife of Clyde Acton has filed her information in County Court in Douglas county, Illinois, for abandonment by her said husband.

From these various documents it appears that the extradition proceedings are based wholly and solely on the charge of “abandonment of wife.”

The copy of the statute of Illinois, set forth in the majority opinion, appears in the transcript of the extradition proceedings as the statute of the state of Illinois prescribing that the offense charged in the information is a crime.

An inspection of this statute reveals that it does not prescribe any such offense as “abandonment of wife,” but only prescribes an offense of the neglect or refusal to provide for the support and maintenance of wife and an offense of desertion or neglect or refusal to provide for the support and maintenance of a child or children.

As no such offense as “abandonment of wife” is prescribed, the Governor of Illinois was without authority in law to make requisition on the Governor of Ohio for such offense, and the Governor of Ohio was without authority in law to grant such requisition and issue said warrant, and said extradition proceedings and said warrant are null and void.

As the return of the sheriff shows that said requisition proceedings are null and void for the reasons mentioned, the demurrer of petitioner should be sustained and he ordered discharged.


author: Carpenter, J.

text:
    Ward, Appellee, v. Ward; Bacome, Appellant.
    (No. 4498
    Decided December 26, 1950.)

      Mr. Harold T. Hanley, for appellee.

      Mr. Marion W. Bacome, for appellant.
   Carpenter, J.

This is an action for divorce and alimony. From the record it appears that on April 30, 1947, after a hearing on the merits, a divorce, alimony, and the right to occupy the premises of the defendant were granted the plaintiff, and, among other things, defendant was “enjoined from selling, mortgaging or in any way encumbering or alienating any right, title or interest which he may have in said premises.” Marion W. Bacome is the attorney for the defendant in this action.

On July 29, 1947, plaintiff, by her attorney, tiled a motion herein in which she alleged that Bacome, in another action entitled Marion W. Bacome v. Henry A. Ward had taken a judgment against this defendant for $170 on a cognovit note and had levied an execution on the property occupied as a home by this plaintiff and was proceeding to foreclose the lien of that judgment, and the motion asked that Marion W. Bacome be enjoined from further proceeding in that action and that his judgment lien on that property be vacated. On May 13, 1950, a journal entry was filed herein which recites that on September 17, 1947, this cause came on to be heard upon plaintiff’s motion which the court granted and allowed the injunction prayed for.

On September 17, 1947, Marion W. Bacome, under authority of Section 11421-2, G-eneral Code, moved the court for separate conclusions of fact and law. In the same journal entry of May 13, 1950, that motion was overruled by the court “on the grounds that no question of fact was determined by the court. ’ ’ From the court’s order of May 13,1950, Marion W. Bacome filed this appeal on questions of law.

Plaintiff has moved to dismiss this appeal for the reason that Marion W. Bacome is not a party to this action.

True, he is not a party, but this plaintiff, by her motion and by taking an order thereon, is estopped from saying he is not a party. If she wanted to enjoin him, as she did, she should have made him a party. Her procedure is as irregular as his and was the beginning of this comedy of errors. She has produced a situation of which she can not now be heard to complain, and her motion to dismiss the appeal will be overruled.

The injunction could not have issued without the determination of a question of fact upon which the relief was granted. The motion itself was based upon allegations of facts which were not positively verified by affidavit or otherwise. Upon such motion the court could not take judicial notice of the action of Marion W. Bacome v. Henry A. Ward and what had been done therein (Burke, Exrx., v. McKee, 30 Ohio App., 236, 164 N. E., 776) even though the trial judge may have presided in the other case. Myers v. State, 46 Ohio St., 473, 22 N. E., 43, 15 Am. St. Rep., 638. If the injunction was issued without evidence, that was error. If the injunction was issued upon the taking of testimony, an agreed statement of facts, or admissions of counsel, a fact question was determined, and, under Section 11421-2, G-eneral Code, the request for conclusions of fact found separately from conclusions of law was timely made and the failure of the court to so state them was error. Bittmann v. Bittmann, 129 Ohio St., 123, 194 N. E., 8.

The order granting the injunction is reversed and the cause remanded to the Court of Common Pleas for further proceedings.

Judgment reversed.

Conn and Fess, JJ., concur.


author: Middleton, J.

text:
    Johnson, Appellant, v. McKinney, Appellee.
    (No. 1014
    Decided January 14, 1950.)

      Messrs. Strelits, Halberstein & Mitchell, for appellant.

      Mr. William P. Moloney and Mr. J. D. Williamson, for appellee.
   Middleton, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Marion County, wherein plaintiff, an automobile salesman, seeks to recover from the defendant $12,-116.18 claimed to be due him as commissions for the sale of automobiles.

At the conclusion of the plaintiff’s evidence, the defendant moved the court to arrest the testimony from the jury and direct a verdict in his favor. This motion was sustained and the court directed a verdict in favor of defendant.

It is from the judgment entered on that verdict that appeal is taken to this court.

The plaintiff’s claim, as set forth in his amended petition, is based on an oral contract under the terms of which plaintiff was employed as a salesman to sell automobiles for the defendant. Plaintiff alleges that under the terms of the contract defendant agreed to deliver to purchasers motor vehicles sold by plaintiff and to pay plaintiff six per cent of the selling price upon delivery of each car sold, irrespective of whether at the time of delivery plaintiff was in the employ of defendant. Plaintiff claims that such sales amounted to $201,936.39, and that his commissions thereon amounted to $12,116.18.

Plaintiff’s amended petition set forth further that on or about December 17, 1946, defendant sold his automobile agency to McKinney Motor Sales, Inc., an Ohio corporation organized and controlled by the defendant; that later, on or about January 12, 1948, defendant caused the McKinney Motor Sales, Inc., to sell the agency and all the assets thereof, including the purchase orders for automobiles obtained by plaintiff, to Eddie Steele, Inc., a corporation in which the defendant had no interest; and that thereby defendant intentionally rendered himself unable to deliver to the purchasers the automobiles purchased by them through the efforts of plaintiff, and unable to fulfill defendant’s obligations under the terms of the contract of employment.

At the trial, plaintiff took the stand and testified as to the terms of his employment and the names of the purchasers from whom he had secured orders for automobiles and identified and offered in evidence the claimed written contract covering each purchase order upon which commissions were claimed to be due.

The record discloses that four forms of purchase orders were used by plaintiff in obtaining orders from customers for automobiles, all of which were furnished by defendant for plaintiff’s use.

The plaintiff testified that upon the signing of an order for a car the purchaser made a deposit of $25 on the purchase price and that each purchaser was given a receipt for this deposit.

Although the order forms differ in several respects, a large number contain the following provision:

“This will acknowledge the receipt of the be Low named amount as a deposit for a new automobile. This deposit will be refunded at any time for any reason upon the cancellation of this order and presentation of this receipt.”

The other forms used do not contain the above provision.

Plaintiff took the stand and testified as follows on cross-examination that all purchasers were notified that the deposit would be refunded upon the cancellation of the purchase order for any reason:

“35. That is correct. Now when they did that, Earl they had a right to take this money that they put up and get their names off of the list any time they wanted to, didn’t they? A. That’s right.
“37. Now, Earl, you told every person you took an order from that any time they wanted to take up their money and get off the list they had a right to do it. A. No, I didn’t tell that to everybody I saw, they was on the receipt they got.
“38. It was on the receipt? A. That is right.
“39. And the very order that you took beginning here with January 8, 1946, here is one signed by the Peoples Trucking Company, the order itself, what you call an order, provided that they could come in at any time and take up their money and get off the list?
“40. Now, you knew that provision was in the order, Mr. Johnson? A. Yes sir.
“41. Now from time to time different forms of orders were used, were they not? A. Yes.
“42. But the person who signed was permitted to take up his money and get off the list regardless of form? A. That is right.”

It was therefore established by the testimony of the plaintiff that the purchase orders upon which this action is based were not orders which could be enforced against the purchasers, and that all such orders could be cancelled for any reason, at any time, by the purchasers.

Plaintiff called as one of his witnesses Eddie Steele, the owner of Eddie Steele, Inc., the successor to defendant agency, who testified that no deliveries of automobiles had been made by him on any of the orders upon which this action is founded, ■ and that at least 90 per cent of those orders had been cancelled and the deposits refunded.

Before the plaintiff is entitled to recover commissions on his sales he must show that he delivered to defendant enforceable orders for automobiles.

The testimony of the plaintiff was conclusive that he did not do so, and therefore, he is not entitled to any commissions on such claimed sales. Patton v. Alessi, 42 Ohio App., 91, 180 N. E., 387; Hrovat v. Krall, 28 Ohio App., 46, 6 Ohio Law Abs., 40, 162 N. E., 437.

The plaintiff assigns as error the admission of evidence offered by the defendant to which the plaintiff objected. This assignment of error refers to the testimony of the plaintiff, given on cross-examination, relating- to the right of purchasers to cancel their orders and secure a refund of their cash deposits.

Plaintiff complains that the admission of this testimony violates the rule that written contracts speak for themselves, and that a party’s understanding of Ihe language used in such a contract must be excluded from evidence.

The testimony offered neither construed the contract nor gave an understanding of one party of the language contained therein. This testimony was to the effect that at the time the written contracts were entered into there were oral conditions annexed to each contract, to wit, the privilege to cancel the purchase order and secure a refund of the amount placed on deposit.

The law recognizes the right to annex contemporaneous oral conditions precedent to a written contract.

The oral condition annexed in the present case was a condition precedent in that under it the written contract did not become effective as a contract of purchase except upon the subsequent nonexercise by the person, designated as purchaser, of his right to cancel the purchase order.

“Words are often used, therefore, the literal meaning of which would make some fact a condition subsequent to the duty of immediate performance, though the parties really mean to make its nonoccurence a condition precedent to such duty. So extraordinary, however, is an intention that a party to a contract shall be under a duty of immediate performance while a fact is still uncertain, on' the existence of which the duty and any right of action for breach thereof ceases, that the clearest language is necessary to justify an interpretation giving that meaning to a contract. Generally, therefore, the form in which the requirement of a condition is stated is disregarded except with reference to procedure.

“b. In an action on a promise stated in absolute terms, but followed by the further statement, that the duty will be terminated if a certain contingency occurs, the form of statement may have the effect of throwing the burden of pleading or of proof on the defendant, whereas the plaintiff must ordinarily plead and prove the happening of conditions precedent.” Restatement of the Law of Contracts, 370, 371, Section 259.

"When this right to cancel is proven and the conditions set forth are met, the parties are bound thereby.

Permitting testimony tending to prove the annexing of conditions to purchase orders at the time said orders were taken is not varying the terms of a written contract by parol or permitting a party to give his understanding of the language used in a written contract.

The court, after construing the evidence most strongly in favor of the plaintiff, finds reasonable minds could come to but one conclusion upon the evidence submitted, and that conclusion is adverse to the plaintiff.

The trial court properly sustained defendant’s motion to direct a verdict.

As we find no prejudicial error in any of the particulars set forth in the assignments of error and argued in the briefs, the judgment of the court below is affirmed.

Judgment affirmed.

Gtjernsey, P. J., and Jackson, J., concur.


author: Doyle, J.

text:
    Simmons, Appellant, v. Kieffer et al., Appellees.
    (No. 4198
    Decided May 2, 1951.)

      Mr. Paul G. Weiok and Mr. Ernest W. Teodosio, for the motion.

      Messrs. Meade, Weygandt & Leonard, contra.
   Doyle, J.

There is presented, for the consideration of this court, a motion filed by the appellee Louise Teodosio, which seeks to have stricken from the files the petition of the appellant on the grounds, first, that it is a sham petition, and second, that the issues are res judicata.

It appears from the pleadings, journal entries, and other papers in the case, brought to us from the Common Pleas Court of Summit County, that Albert C. Simmons, the appellant herein, brought his action praying that a constructive trust, in his favor, be impressed upon certain United States Government bonds, or the proceeds therefrom, and for further relief in connection therewith. Upon motion of defendant Louise Teodosio, in the said Court of Common Pleas, that the petition be stricken from the files on the grounds that it was a “sham” pleading, a “vexatious” suit, and that the suit “was not filed in good faith,” the court struck the petition from the files and entered a judgment for said defendant.

Subsequent to the entering of this final order, appeal was made to this court on questions of law and fact, and the motion first observed above was here interposed, asking this court to strike the petition from the files.

Prom the foregoing, it will be observed that the action was one invoking the equitable jurisdiction of the Court of Common Pleas, and, of course, if a trial had been had on the merits in that court, the case would have been properly appealable to this court on questions of law and fact for trial de novo. Under ordinary circumstances, the appellate jurisdiction of the Court of Appeals cannot be invoked to conduct a trial on issues of fact, unless such a trial has been had in the court of first instance (LeMaistre, Admr.; Warner, Admx., v. Clark, 142 Ohio St., 1, 50 N. E. (2d), 331) or unless the litigants agree to a trial de novo in the appellate court or by their conduct waive such preliminary step (Drake et al., Trustees, v. Tucker et al., 83 Ohio St., 97, 93 N. E., 534; Trumbull Savings & Loan Co. v. Saviers, 115 Ohio St., 403, 154 N. E., 317; Union Trust Co. v. Lessovitz, 122 Ohio St., 406, 171 N. E., 849).

The action of the trial court in the ease before ns was not a hearing on the merits of an action in equity. The sustaining of the motion and the dismissal of the petition was not, under the appellate procedure act, such a final order, on the merits of the controversy, as to furnish the basis for an appeal on law and fact. Under the act, the proper procedural step would have been an appeal on questions of law. However, as inferred above, if an appellee fails to challenge the right of the appellate court to hear the appeal on law and fact, or affirmatively consents to the hearing de novo, he thereafter cannot challenge the action taken, because he has waived the right to make such challenge. See, 2 Ohio Jurisprudence (Revised), Appellate Review, Section 469, and cases therein cited.

As the case now stands, it will be observed that the appellant has appealed on questions of law and fact. The appellee has moved in this court to strike the petition from the files, thereby not challenging, but affirmatively acquiescing in, the appeal on law and fact made by her adversary.

Under the circumstances heretofore shown to exist, it may be that this court could sua sponte dismiss the appeal on law and fact and retain the case on questions of law — giving, at the same time, an opportunity to the appellant to prepare and file a bill of exceptions. This question we do not decide, because it is our purpose to retain the case, with the consent of the parties, for trial de novo on the merits.

Proceeding now to rule on the motion to dismiss the petition for the claimed reasons as heretofore stated —that it is a “sham petition,” and that the issues are “res judicata” — it is determined that it should be overruled.

Motions are not regarded as pleadings in the ordinary or technical sense of the term. In most instances, they cannot be made available to settle important questions, or to dispose of the merits of a case, unless made during a trial on the merits. Certainly, a motion to strike a petition from the files on the claim of res judicata, as here attempted, is not sufficient to raise this issue. And “issue” it is, because a former adjudication which is sought to be used as a defense to a cause of action is itself an ultimate fact, or matter in issue, and the judgment not only may and should, but must, be pleaded. Norwood v. McDonald et al., Admrs., 142 Ohio St., 299, 52 N. E. (2d), 67; 23 Ohio Jurisprudence, Judgments, Section 883, and cases therein cited. Evidence was introduced on the point of res judicata, but, for the reasons heretofore stated, it cannot be considered on the motion.

The point of the right to dismiss a petition on motion prior to trial on the merits, on the ground that the petition is a “sham,” is “vexatious,” and not filed “in good faith,” we are not called upon to decide, for the reason that no evidence was introduced on this question. It is noted, however, that the case of Barrett v. W. S. Goff Co., unofficially reported in 11 Ohio Law Abs., 323, seems to sustain the claim of such a right.

Motion overruled.

Hunsicker, P. J., and Stevens, J., concur.


author: Conn, J. Carpenter, J.,

text:
    English, Appellee, v. Aubry, Appellant, et al.
    (No. 4451
    Decided May 1, 1950.)

      Mr. J. I. O’Connor and Mr. Ban H. McCullough, for appellee Howard English.

      Mr. Ralph Emery and Mr. Harold C. Moan, for appellant.

      Mr. Ned W. Thomas, for appellee John J. Kennedy, Jr.
   Conn, J.

This is an appeal on questions of law by defendant Richard Aubry from a judgment entered jointly against him and defendant John J. Kennedy, Jr., in the Court of Common Pleas. Defendant Kennedy did not appeal.

The principal error assigned and relied on by defendant Aubry is the overruling of his demurrer to plaintiff’s amended petition by reason of misjoinder of parties defendant and causes of action.

The trial court granted defendant’s motion to separately state and number the several causes of action. The amended petition contains four causes of action. It is set forth in the first that on July 3, 1948, at about 3:30 a. m., plaintiff was operating his motor vehicle in a northerly direction on Bennett road, and, as he arrived at a point on the road a short distance south of the place where he resided, was about to make a left turn from the easterly side of the road and was moving about 5 miles per hour, he “was violently struck by a 1948 Pontiac automobile driven by defendant Richard Aubry and immediately thereafter by a 1935 Ford automobile driven by defendant John J. Kennedy, Jr., both of which were driven in a northerly direction along Bennett road at a high and dangerous rate of speed, to wit: about 60 miles per hour, badly damaging plaintiff’s automobile, causing the same to catch on fire and severely injuring plaintiff and his wife, who was a passenger in plaintiff’s automobile at the time.”

It is alleged further that plaintiff’s injury and damage were the proximate result of the negligence of defendants in the several particulars set forth in the amended petition.

In the second cause of action plaintiff sets forth his claim against defendants for loss sustained by reason of injuries to his wife resulting in her death August 2, 1948. Damages sustained by reason of expenses incurred, pain and suffering, and loss of earnings are separately set forth in the third cause of action. Damages to plaintiff’s automobile are separately pleaded in plaintiff’s fourth cause of action.

There is credible evidence that the defendants, shortly before the collision and while traveling easterly on Sylvania avenue and before they reached Bennett road, were operating their automobiles “abreast of one another” and at a “high rate of speed”; that after defendants turned into Bennett road they were observed “running side by side” when they were within 500 or 600 feet of the place where the collision with plaintiff’s automobile occurred; and that at that time they were traveling “between 60 and 65 miles per hour.”

Defendant Aubry’s automobile was damaged at the end of the right rear fender and bumper and the front end of defendant Kennedy’s automobile was demolished, indicating a collision between the front end of the latter car with the rear of plaintiff’s car.

Police officers promptly arrived at the scene of the accident, and one of them testified that he found “a swerving skid mark that started just about on the center line of the street and swerved toward the west curb within a very short distance of the curb and then straightened out toward the center of the street again and then we found the debris in the center of the street”; and that the marks consisted of two solid lines and extended a distance of 124 feet. The pavement was dry.

Plaintiff testified that the paved portion of Bennett road is 36 feet wide; that as he approached his residence he reduced his speed to about 5 miles per hour and gave a signal, outside his car, for a left turn; that he heard “motors” from behind the “rear”; that he started to pull over toward the easterly curb to give room to pass; that the defendant Aubry’s automobile struck his left rear fender; and that there were two impacts and plaintiff’s automobile was driven ahead about 90 feet and partly over the east curb of the street.

The evidence offered by defendants was in sharp conflict. However, it was the province of the jury to weigh the evidence and give credence to the testimony of plaintiff and his witnesses. The evidence offered by plaintiff tended to show that the damages sustained by him resulted proximately from the failure of defendants to observe a common duty owing plaintiff, and that the collision was the direct consequence of concerted action and concurring negligence of defendants.

It is a rule of general application that where two or more persons by concurrent acts violate a common duty owing another, proximately resulting in a single, indivisible injury to such person, they may be held liable for the full amount of damage growing out of such tortious conduct, and the party sustaining the loss may proceed against one or join two or more in a single action. 30 Ohio Jurisprudence, 768, Section 46; 39 Ohio Jurisprudence, 236, Section 27; 4 Restatement of the Law of Torts, 452, Section 882; 39 American Jurisprudence, 909, Section 40; 47 Corpus Juris, 79, Section 161.

Any issue of misjoinder arising when two or more tort-feasors are joined as parties defendant is ordinarily determinable on the peculiar facts in each case. It appears in later cases that the rule requiring a common purpose, common duty, or joint or concerted action has been given greater liberality in permitting joinder of defendants in tort actions. Compare Larson v. Cleveland Ry. Co., 142 Ohio St., 20, 50 N. E. (2d), 163; Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692; Blanton, Admr., v. Sisters of Charity, 82 Ohio App., 20, 79 N. E. (2d), 688; Fink v. Young, Admx., 39 Ohio App., 95, 177 N. E., 286.

In the instant case, if it may be said that the allegations of the amended petition and all reasonable inferences that arise therefrom do not disclose any concert of action between the defendants, it appears there is substantial evidence of concurrent conduct in that the defendants were racing and driving abreast on Bennett road immediately preceding the collision with plaintiff’s automobile. This evidence was received without objection.

In view of this state of the record, the overruling of the demurrer in the first instance was not prejudicial to defendant Aubry, as the trial court had the power under the liberal provisions of the Code (Section 11363, General Code) to permit plaintiff to amend his pleading to correspond with the evidence. No amendment was requested and none was made, but the trial proceeded as if this had been done.

We have examined the cases relied on by Aubry. It is not practicable to analyze each case separately. From our study of those cases it appears that the conclusion reached in each instance was grounded on a fact situation readily distinguishable from the facts now before us.

In view of the conclusion we have reached in sustaining the trial court’s ruling on the issue of misjoinder, the related assignments of error, to wit, the overruling of defendant Aubry’s motion to require plaintiff to elect which defendant he would proceed against, the refusal of the trial court to direct the jury to return a verdict for defendant Aubry, the court’s refusal to give before argument special request No. 3, which was renewed following the general charge, the refusal of the court to instruct the jury to answer special interrogatories Nos. 3 to 8, inclusive, and the overruling of the motion of Aubry for a judgment notwithstanding the verdict, are each and all not wel] taken and should not be sustained.

Aubry points out that, adding the maximum amounts which could be allowed on the first, third and fourth causes of action, the total would be less than $14,000, and that the verdict of the jury, being for $22,000, included an award of over $8,000 for loss of services of plaintiff’s wife for one month and was so excessive as to show passion and prejudice. The trial court found that the verdict should not have been for more than $13,500, ordered a remittitur accordingly, and determined that the verdict “was not given under passion or prejudice.”

It is our opinion that the jury was confused in making up its total verdict by reason of the separate causes of action, so designated, and the maximum amounts recoverable as to each. It does not appear that the verdict of the jury was given under the influence of passion and prejudice or that it is manifestly against the weight of the evidence.

The general charge of the court appears to adequately cover the issues raised on the pleadings and the evidence and is free from prejudicial error.

The court was requested to order a remittitur of $500, the amount awarded plaintiff for damages to his automobile as claimed in his fourth cause of action. This request for a remittitur arises by reason of plaintiff’s failure to offer proof of ownership pursuant to the rule announced in Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209. The request for a remittitur of $500 should be granted.

It is our opinion that none of the errors assigned are prejudicial to defendant Aubry, and that the judgment should be affirmed.

Judgment affirmed.

Carpenter and Fess, JJ., concur.

Carpenter, J.,

concurring. In addition to the reasoning stated by Judge Conn, in all of which I concur, I suggest that the record in this case gives rise to a striking application of the substantial justice statute, Section 11364, General Code, especially as interpreted in the recent decision of Hallworth v. Republic Steel Corp., 153 Ohio St., 349, 91 N. E. (2d), 690. The premise of that statute is expressed in its first two sentences:

“In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. No judgment shall be reversed, or affected, by reason of such error or defect.”

Assuming, but not saying, that the demurrer to the amended petition should have been sustained on the ground that there was a misjoinder of parties defendant, and that there was error in the court’s refusal to grant Aubry’s motion to require the plaintiff to elect against which defendant he would proceed, and in the charge of the court upon concert of action by the defendants immediately before the collision, and concurrence in causing plaintiff’s damages, the only action this court could take would be to reverse the judgment and remand the cause for further proceedings.

Then, as would undoubtedly happen with all this pointed out to him, the plaintiff would remember that early in the trial two witnesses who were near Bennett road, one said 400 the other 500 or 600 feet from the place of collision, testified without objection that they saw the automobiles of these defendants pass them at a speed of 60 to 65 miles per hour. One testified that they were “side by side” and “there wasn’t a split second when they — we seen a fire and I called in for the fire department.” The other witness said the automobiles were “abreast” and that it was “just a matter of seconds” when the collision and fire took place.

From this evidence the obvious inference was that the defendants were racing at night on that important city street. Before a retrial, the plaintiff would undoubtedly amend his petition and expressly charge the defendants with concerted and concurrent negligent conduct which caused his damages. On the retrial, the evidence, particularly that of the two witnesses above quoted, would be the same as it was in this trial.

We do not have to guess or assume what the verdict of a jury would “probably” be on that evidence, the verdict in this case tells us that. In this respect, this record differs from that which Judge Taft discussed in Hallworth v. Republic Steel Corp., supra, where the court in paragraph three of the syllabus said:

“ Generally,-in order to find that substantial justice has been done to an appellant so as to prevent reversal of a judgment for errors occurring at the trial, the reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury or other trier of the facts would probably have made the same decision. ’ ’

The evidence above quoted having been received without objection, as stated by Judge Conn in regard to an amendment of the petition which could have been made at that early stage of the trial, “the trial proceeded as if this had been done,” and, I would add, substantial justice was done.


author: Ross, J.

text:
    Bruckmann, Appellant, v. Bruckmann et al., Appellees.

      (No. 7453-
    Decided June 25, 1951.)

      Mr. Sol Goodman, for appellant.

      Mr. John C. Taylor, Mr. Walter E. Beckjord, and Messrs. Peck, Shaffer <£ Williams, for appellees.
   Ross, J.

Considered here is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County, sustaining a motion of the defendants for judgment on the pleadings which consisted of an amended petition, amended answer, and a reply, the latter modified by a stipulation of the parties amounting to an amendment of such reply. Such a motion for judgment on the pleadings has long been construed to be, in effect, a demurrer by the defendant to the allegations in the pleadings favorable to the plaintiff. 31 Ohio Jurisprudence, 881, 882, 883, “Pleading,” Sections 289, 290.

It has also been repeatedly held that upon such motion the court is required to extend to the plaintiff the benefit of a construction of all allegations in the pleadings, most favorably to him, and that, by such motion, the defendant admits “not only the proper and well-pleaded factual allegations thereof, but also the fair, reasonable and favorable intendments and inferences arising therefrom.” Guardian Life Ins. Co. of America v. Veser, 128 Ohio St., 200, 190 N. E., 405; Gugle v. Loeser, 143 Ohio St., 362, 55 N. E. (2d), 580.

The plaintiff is entitled also to a similar construction of the allegations of the answer which are not denied. Williams v. Village of Deer Park, 78 Ohio App., 231, 60 N. E. (2d), 536; 31 Ohio Jurisprudence, 883, “Pleading,” Section 290.

In the amended petition it is alleged:

“For a cause of action, plaintiff states that Henry A. Bruekmann died on or about May 14, 1901, leaving a will recorded in will book 81, page 319, of the records in the office of the Probate Court of Hamilton County, Ohio. Plaintiff states that among other things the will provided that the estate of said Henry A. Bruekmann be devised to defendant, Lena M. Bruekmann, in trust for her use and for the maintenance and support of the children, consisting of plaintiff and his brothers and sister.
“Plaintiff states that at the time of the death of his father the oldest of said children was thirteen (13) years of age. The defendant, Lena M. Bruekmann, qualified and was appointed as executrix under said will and entered into the administration of said estate. She continued to act as such until January 12, 1917, at which time it was agreed, among plaintiff and defendants, that said estate would be transferred to the defendant, Lena M. Bruckmann, who was 'to make use of so much, or all, thereof for her own needs and that she would then, either during the lifetime of said children, or upon her death, make equal distribution1 among all the children. Plaintiff states that pursuant to said oral agreement and in order to carry said agreement into effect he, together with the other defendants, signed an application with the Probate Court signifying their consent to the closing of the estate and the distribution of the assets to their said mother, Lena M. Bruckmann. Plaintiff states that the signing of said application and agreement, filed with the Probate Court, was in reliance upon oral agreement and promise made by defendant, Lena M. Bruckmann, and the other defendants.”

In the final judgment entry, it is recited:

“This cause came on to be heard upon the motion of the defendants for judgment on the pleadings.
“Upon consideration thereof, the court finds that upon the pleadings, stipulation, and argument of counsel, plaintiff and defendants have stipulated that defendants ’ amended answer shall be considered as filed in answer to plaintiff’s amended petition and that plaintiff’s reply shall be considered as filed in reply to defendants’ amended answer, except that irrespective of the terms of said reply plaintiff does not deny the execution and terms of either the application to transfer stock in kind, consent attached, and entry of the Probate Court of Hamilton County, No. 50769, dated January 12, 1917, a copy of which is set forth as exhibit A of the amended answer, or the written agreement of release dated November 20, 1939, a copy of which is set forth as exhibit B of the amended answer.”

The terms of this stipulation are not otherwise presented to this court either by bill of exceptions or by being included among the original papers. However, the trial court having recited in such final judgment entry the terms of the stipulation, this court is thereby advised of what was before that court and, therefore, what was considered by it.

An examination of the allegations referred to in the stipulation shows that, in effect, the parties to this action agreed among themselves to permit the closing of the estate of the father of' plaintiff, and that they intended thereafter to arrange for an extrajudicial administration thereof. This is a fair construction of what is alleged to have occurred, construing the facts involved most favorably to the plaintiff. Such action, in view of the allegations of the pleadings, may not, under such favorable construction, be considered as a permanent and final release executed by the plaintiff. Nor can the allegations applicable to other releases signed by the plaintiff be so considered for the same reason.

Returning to the allegations of the amended petition, it is the contention of the defendants that these allegations state an oral contract within the statute of frauds or an oral contract to make a will. A strict construction of such allegations, favorable to the defendants, might result in sustaining their contention. A liberal construction, favorable to plaintiff, justifies the conclusion that the parties intended to create a trust by which the mother was established as a trustee over certain property held for the ultimate benefit of her children, and that, before or at her death, she was to transfer the corpus of the trust to such children in equal shares. Such a contract is not subject to the statute of frauds. 40 Ohio Jurisprudence, 165, “Trusts,” Section 32.

It appears from the allegations of the pleadings that she has chosen to distribute appropriate shares of the corpus of the trust to all her children except the plaintiff.

It is suggested that in doing so she was within the ■ terms of the contract creating the trust. This ignores a favorable construction of the language used in the amended petition, to wit, ‘ ‘ she would then, either during the lifetime of said children, or upon her death, make equal distribution among all the children.” (Emphasis added.)

The mother has chosen to select the first alternative for distribution, to wit, “during the lifetime of said children.” In so doing she is bound (again selecting a favorable construction to the plaintiff) to distribute to all the children equally.

It must be remembered that this court is here considering purely a question of law raised by the allegations of the pleadings, and that our conclusion thereon can have no bearing on possible further incidents of this litigation. The court is simply construing the legal effect of the allegations now presented to it. Such consideration requires that the judgment of the trial court adverse to the plaintiff be reversed and the cause remanded to that court with instructions to overrule the motion for judgment on the pleadings, and for such further proceedings as may be in conformity to law and equity.

Jtidgment reversed.

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


author: Phillips, P. J.

text:
    Werner, Appellee, v. City of Youngstown, Appellant.
    (No. 3396-
    Decided December 4, 1950.)

      Mr. Paul W. Brown, for appellee.

      Mr. H. II. Hunt, director of law, Mr. 1. Freeman, and Mr. P. Richard Schumann, for appellant.
   Phillips, P. J.

In this opinion plaintiff-appellee and defendant-appellant will he called plaintiff and defendant, respectively.

Acting in accordance with an ordinance duly enacted by its council, the defendant, for the purpose of regulating traffic on Market street, a heavily travelled public highway therein, at about 7 o’clock on the dark rainy morning of January 24, 1949, placed an unlighted and unguarded dark grey or black circular traffic sign on Market street a few inches east of the center of two westbound lanes of traffic. The sign designated one lane of traffic south over the bridge, between the hours of 7 to 9 a. m. This sign, about 14 to 18 inches in diameter, was supported by an iron pipe about four feet high, which rested on a movable base of heavy iron approximately two feet in diameter. The sign was placed on Market street about 75 feet beyond the southerly sidewalk line of Front street on the northerly approach to the Market street viaduct, in such a position that the sign faced south.

About 7:10 a. m. plaintiff, while driving his automobile about 15 miles an hour in a southerly direction along Market street, passed through the intersection of Front street and collided with the sign.

Plaintiff testified that he was not warned of the existence of such sign as he approached it; that he could not see it because of weather conditions and because it was of dark color, unlighted, and was turned edgewise so as to face west; and that, as the result of such collision, his automobile was damaged to the extent of $900.

The plaintiff instituted this action in the Court of Common Pleas on the ground that the existence of such sign in Market street created a nuisance, and that defendant failed to keep Market street open, in repair, and free from nuisance.

Defendant charged plaintiff with contributory negligence.

The trial court overruled defendant’s demurrer to the petition and submitted the case to the jury on the issues of defendant’s negligence and plaintiff’s contributory negligence. The jury returned a unanimous verdict for the plaintiff for the amount prayed for, upon which the trial judge entered judgment. If is from that judgment and the order of the trial judge overruling its motion for a new trial that the defendant appealed on questions of law to this court.

By assignments of error defendant contends that the trial court erred “in overruling the city’s demurier to plaintiff’s petition as stating no cause of action; in overruling defendant’s motions for directed verdict at the close of plaintiff’s testimony and the close of all the evidence; in his general charge to the jury; in charging the jury that the placing of the sign for the separation of traffic during rush hours, pursuant to police regulations and in the interest of public safety, constituted an active nuisance for which the city may be answerable in damages to a person colliding therewith; in refusing to charge the jury on notice to the city that the traffic sign so placed was dangerous to public travel; in disregarding and rejecting the assured-clear-distance rule urged by the defendant.'’ Defendant further contends that “the judgment of the court is contrary to law and contravenes the Supreme Court ruling in Tolliver v. City of Newark, 145 Ohio St., 517, that in the installation and maintenance of traffic devices the city acts in a governmental capacity and immune from tort liability”; that “the verdict of the jury is against the manifest weight of evidence and is not supported by any evidence stating a cause of action”; and that the judgment “is contrary to law.”

By brief, counsel for defendant contend that the principal question to be determined is “whether a traffic sign placed at the entrance to a bridge, as a safety measure pursuant to ordinance provisions, constitutes a nuisance as will render the city liable to a motorist colliding therewith.”

In our opinion the trial judge did not err in overruling defendant’s demurrer to plaintiff’s petition.

Defendant waived its right to rely on the claim that the trial judge erred to its prejudice in overruling its motion for a directed verdict made at the close of plaintiff’s testimony, when it accepted the ruling and proceeded with its defense and introduced evidence in its own behalf. Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199.

As shown by the assigned grounds of error, defendant contends that the trial judge erred to its prejudice in his general charge to the jury in the respects stated. Disposition of the specifications of error as to the general charge will be made separately in this opinion.

We have carefully reviewed the general charge and find no error therein prejudicial to defendant.

In our opinion the trial judge did not err to defendant’s prejudice in charging the jury that placing such sign where it did constituted an active nuisance for which defendant may be answerable in damages to plaintiff. The duty imposed upon the defendant by Section 3714, General Code, is a duty to keep its streets open, in repair, and free from nuisance; and, where, as in the case we review, special circumstances surrounded the placing of the sign, a question is presented for determination by the jury whether there was a ‘ ‘ nuisance. ’ ’

The trial judge did not err to defendant’s prejudice “in refusing to charge the jury on notice to the city that the traffic sign so placed was dangerous to public travel.” The trial judge was under no duty to so charge, because the defendant, its agents or officers created the condition of which plaintiff complained. See City of Cleveland v. Amato, 123 Ohio St., 575, 176 N. E., 227; Taylor v. City of Cincinnati, 143 Ohio St., 426, 427, 55 N. E. (2d.), 652, 155 A. L. R., 44.

There is no error of omission or commission in the charge of the trial judge on the law of assured clear distance ahead in the respects urged by defendant. See Farris v. City of Columbus, 85 Ohio App., 385, 53 Ohio Law Abs., 369, 85 N. E. (2d), 605; Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960.

The evidence, in our opinion, was such that reasonable minds could differ as to the discernibility of the traffic sign, the existence of circumstances over which plaintiff had, or had not, control, whether he was at fault, or whether the condition which existed in dedefendant’s street, as shown by the evidence, met the definition of a nuisance. See City of Hamilton v. Dilley, 120 Ohio St., 127, 165 N. E., 715.

In our opinion the trial judge did not err to defendant’s prejudice in overruling its motion for a directed verdict made at the close of all the evidence.

It is obvious from what we have said that we conclude that the verdict of the jury and judgment of the trial judge entered thereon are not contrary to law, and that the judgment must be, and hereby is, affirmed.

Judgment affirmed.

Griffith, J., concurs.

Nichols, J., concurs in the judgment.


author: Per Curiam.

text:
    The State of Ohio, Appellee, v. Spino, Appellant.
    (No. 323
    Decided January 24, 1951.)

      Mr. Webb 8. Tomb, for appellee.

      Messrs. Miller & Miller, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment rendered on a verdict of a jury finding the defendant guilty of keeping a certain room to be used for gambling, as charged in an indictment.

The defendant, appellant, assigns errors in the following particulars:

1. The court erred in its charge to the jury.
2. The court erred in the admission of incompetent, irrelevant, and prejudicial evidence over the objection of the defendant.
3. The verdict and judgment predicated thereon are against the manifest weight of the evidence and are contrary to law.

These assignments will be considered in the order mentioned.

Under this assignment the defendant contends:

A. The court erred in reading to the jury the penal clause of the statute relating to the offense charged.
B. The court erred in answering a question submitted to it by the jury during the deliberations of the jury.

As to contention A under this assignment it appears that the court did read to the jury the whole of the statute defining the offense with which the defendant was charged.

However, it appears that the court further charged the jury:

“It is my duty to say to you that you have nothing whatever to do with the consequences to the defendant in case of a verdict of guilty. That is left to the law and the court. You and you alone are to pass upon the facts in the case and are the sole judges of the facts. ’ ’

This portion of the charge conforms to the requirements of Section 13442-9, General Code, and cured the error, if any, of the court in reading the penalty clause to the jury, and such error, if any, was not prejudicial to the defendant.

As to the second claimed error under this assignment, it appears that after the jury had started its deliberations it submitted the following question to the court:

“Should the fact that there supposedly was an agreement between Sam Spino and the city officials have any bearing on our decision?”

Whereupon the court called the jury into the courtroom and answered the aforesaid question in the following language:

“Ladies and gentlemen, some testimony has been offered concerning a conversation which took place at the city hall on the subject of gambling. It is the duty of the court to say to you that whatever may have been said at the time by anyone present does not, in itself, constitute a defense to the defendant in this case and must not be considered by you as a defense to the indictment. Does that answer the question? Anything further you want to ask now?”

After some discussion with counsel, the court added the following statement to its answer: “I might add to that, you may give this evidence whatever weight you see fit in determining whether or not the defendant kept a place for gambling during the month of March, 1950.”

Virgil Bennehoff, a former mayor of the city of Tiffin called as a witness by the defendant, was asked whether he had issued any instructions to the defendant with reference to gambling. The witness denied giving any such instructions.

Paul Flynn, an attorney at Tiffin also called as a witness by the defendant, testified, in substance, that he was present during conversations with the mayor at which defendant was also present, and that these-conversations did have reference to a course of conduct for the place of business of the defendant, but there was no evidence offered tending to show any agreement between defendant and the city officials with refence to the manner in which defendant should conduct his business.

Since the testimony offered did not in any way reflect upon the guilt or innocence of the defendant, the first answer of the court to the question of the jury was proper to clarify the minds of the jurors, and properly stated the law upon the question submitted.

The further answer of the court was erroneous, but was to the advantage of the defendant and not in any way prejudicial to him.

This assignment of error relates to the admissibility of certain testimony of H. J. Fraley, chief of police of the city of Tiffin.

The defendant limited his objection to only one question, i. e., “Now, will you tell the jury what if anything, you actually saw transpiring or occurring at the counter in the Pastime during the month of March, 1950?”

This question was properly submitted and answered.

Further questions, not objected to by the defendant, broadened the scope of the inquiry, and elicited testimony that tips or similar items pulled from a cardboard holder could be called baseball pools or could be called tips. As this testimony was not objected to, it was properly admitted.

Furthermore, the offense charged in the indictment was keeping a certain room to be used for gambling, under which charge testimony of any and all types of gambling occurring in such room was properly admissible.

The latter clause of the indictment reading, “and in said room so kept by the said Samuel Spino, then and there unlawfully did cause and permit divers persons to gamble in said room by playing cards for money,” was surplusage, there being sufficient matter alleged in the indictment to indicate the crime and person charged.

Under the provisions of Section 13437-7, General Code, an indictment or information shall not be invalid, and the trial, judgment, or other proceedings stayed, arrested or affected for surplusage or repugnant allegations when there is sufficient matter alleged to indicate the crime and person charged.

The defendant made no objection to the admission of other testimony showing that the room was used for gambling in the sale of tips and baseball pools, so that if the indictment had been limited by the last clause thereof to the use of the room for gambling by way of playing cards for money, the admission of such evidence could not be considered as prejudicial to the defendant, because it was not objected to by him.

There is evidence tending to prove beyond a reasonable doubt that the defendant kept the room described in the indictment to be used for gambling by causing and permitting divers persons to gamble therein by playing cards for money, and also by the selling of tips and baseball pools to such persons, so that the charge in the indictment is fully sustained by proof of the degree required in criminal cases.

As we find no error in any of the particulars assigned and argued in defendant’s brief, the judgment of the Common Pleas Court is affirmed at costs of appellant, and the cause remanded for execution.

Judgment affirmed.

Guernsey, P. J., Middleton and Jackson, JJ., concur.


text:
    Hirschfelt, Appellant, v. The Kentucky Central Life & Accident Ins. Co., Appellee, et al.
    No. 4183
    Decided June 20, 1951.)

      Mr. Alvin C. Vinopal, for appellant.

      Mr. Carl D. Sheppard, for appellee.
   Doyle, J.

The litigation here on appeal was commenced in the Court of Common Pleas of Summit County by Ophelia Hirschfelt, as beneficiary under a life and accident insurance policy. Her claim was for $1,000, the maximum amount of indemnity under the contract, and was predicated upon her contention that the death of the insured, Thomas Lee Dunn, resulted ‘ ‘ directly and independently of all other causes through external, violent and accidental means ’ ’ within ‘ ‘ ninety days from the date of the accident.” The quoted phrases above are among the conditions of the policy.

Included in the, several defenses pleaded by the company was the following policy exception: “No indemnity * * * will be paid for accidental death * * * resulting from any of the following- causes: * * * (c) fatal or nonfatal injuries intentionally self-inflicted or intentionally inflicted upon the insured by any person, sane or insane. ’ ’

The case was tried to the court, a jury having been waived, and, at the conclusion thereof, judgment was entered for the company.

There is evidence in the record to justify the conclusion that on the evening of February 26, 1948, Dunn, the insured, while a guest in a local cafe, approached two other guests, a Mr. and Mrs. Messner, and said something- to them which apparently offended Mr. Messner, the husband. Later that evening, Dunn encountered Messner and a companion, one William Loan, on the sidewalk near the cafe, and Messner attempted to engage him in a fist fight. Dunn, while withdrawing from the aggression of Messner, was viciously struck in the face by Loan, and fell to the pavement; whereupon Messner kicked the prostrate Dunn several times in the face. As a result of the assaults, Dunn died "within a period of several minutes.

The appellant presents, among others, the following question: “Under a life and accident policy which contains a provision specifically disallowing recovery for accidental death resulting from fatal or nonfatal injuries intentionally inflicted upon the insured by another person or persons, sane or insane, should the beneficiary be denied recovery where there is no direct or positive evidence of an intent to inflict fatal injury?”

The courts of this state are committed to the general rules that the intention of the parties, as expressed in the insurance contract, must control its construction, and that “policies of insurance, which are in language selected by the insurer and which are reasonably open to different interpretation, will be construed most favorably to the insured.” Home Indemnity Co., New York, v. Village of Plymouth, 146 Ohio St., 96, 64 N. E. (2d), 248. The rule is equally well settled that contracts of insurance are to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense.

The evidence before us amply sustains the claim that the death of the insured resulted “directly and independently of all other causes through external, violent and accidental means.” Central National Bank v. General American Life Ins. Co., 105 F. (2d), 878. And this is so even though the law of this state distinguishes between “accidental means” and “accidental result” and holds the terms to be not synonymous when used in insurance contracts. New Amsterdam Casualty Co. v. Johnson, Admx., 91 Ohio St., 155, 110 N. E., 475, L. R. A., 1916B, 1018; Mitchell v. New York Life Ins. Co., 136 Ohio St., 551, 27 N. E. (2d), 243. (See citation of cases opposing this view in 166 A. L. R., 473.)

In this case, however, the contract in unambiguous terms excepted the risk for such death if the fatal injuries were intentionally inflicted upon the insured by any person. And when an insurer disclaims liability in its answer, because of such contractual exception, it presents an affirmative defense, and the burden of proof in establishing such fact is upon the company.

As we view the record, we find evidence amply sufficient to sustain the affirmative defense discussed above. The policy does not require evidence of an intent to inflict a fatal injury. The policy excepts liability if a third person intentionally injures the insured and from such injuries the insured died.

It is further claimed that the policy is ‘ ‘ ambiguous, equivocal and uncertain.” We do not find it so. It is a standard form policy which insures against definite perils and hazards, with excepted risks set out in unambiguous terms.

“Exceptions” to the liability of the company for accidental death, in addition to the one noted above, appear in the policy, and have been set forth in the answer. The appellant claims the evidence is insufficient to sustain any of them.

The judgment from which this appeal is taken does not indicate the court’s finding on any of the specific defenses. Neither do we have a “finding of fact and conclusions of law,” authorized under the Code. We therefore indulge the presumption that the court found on the exception in the policy which was established by the facts as shown above.

Examination has been made of all claimed errors, and we find none prejudicial to the rights of the appellant.

The judgment is affirmed.

Judgment affirmed.

Hunsicker, P. J., and Stevens, J., concur.