text:
    Morrissey, Appellee, v. Industrial Commission of Ohio, Appellant.
    (No. 5089
    Decided November 1, 1954.)

      Mr. R. Brooke Alloway, for appellee.

      Mr. C. William O’Neill, attorney general, Mr. Paul Tague, Jr., and Mr. Van Blanchard, for appellant.
   Hornbeck, J.

This appeal on,questions of law is from a judgment entered on a verdict of a jury finding that the plaintiff is entitled to participate in the Workmen’s Compensation Fund by reason of an injury sustained in the course of and arising out of her employment while in the employ of an employer who was a contributor to the fund.

Three errors are assigned: That the verdict and judgment are contrary to law and the evidence, against the manifest weight thereof, and that the court erred in not. granting the motion of defendant for judgment in its favor notwithstanding the verdict of the jury.

On and prior to December 7, 1949, for 35 days, plaintiff was an employee of the R. G. Barry Company of Columbus as a seamstress. On the 5th or 6th of December she was assigned to work other than that on which she had theretofore been employed, the sewing of footwear called “booties.” The material upon which she worked was corduroy and, in the process of sewing, a great deal of lint was caused to rise from the material, which spread over her clothing, face and head. It is also said that the material had a very strong and unusual odor, but whether this was a causative factor of the injury of which the plaintiff complains cannot be determined from the evidence. Plaintiff testified that as soon as she began work she noticed that her nose and chest were stuffed up, that her breathing was difficult, and that her eyes and nose were watery. When she blew her nose there was a faint pinkish discharge. The “booties” were of a dark red color, and we presume that the inference to be drawn from the discharge was that this coloring matter, in part, was transmitted' to the nasal passages.

On the second night of her employment, fixed by her as the 7th of December, after she had left work, plaintiff says that her lungs were very full and congested, and that she could hardly breathe. She reported this condition to her physician and was ordered to bed. The diagnosis of her doctor was that she had possible pneumonitis of the lower right lobe and bronchitis. An examination about two weeks later disclosed that she also had a very rapid heartbeat. She was hospitalized from .January 24, 1950, to February 11, 1950. Her condition was diagnosed, upon her admission, as acute upper respiratory infection.

Two doctors who had treated plaintiff testified as to her condition and answered hypothetical questions which were propounded to them. In answer to these questions, neither doctor said that the condition from which she suffered was probably the result of the inhalation of the lint on the 6th and 7th of December. Both said that it could possibly so result.

Plaintiff testified that she had been well prior to the occurrence which occasioned her illness, although one of her doctors, Dr. Vincent, said that the infection which he found when she came to the hospital was of long standing. If this be true, and if the breathing of the lint was a causative factor of her injury, the trial judge was correct in charging the jury that it might consider whether the injury resulted in aggravation of a prior physical condition. This charge is the subject of one of the assignments of error.

Defendant urges that the plaintiff did not sustain an accidental injury within the meaning of the Workmen’s Compensation Act; that the hypothetical questions were improper in that they contained hypotheses not supported by the record; and that there is no medical evidence sufficient to causally relate plaintiff’s disability to the alleged injury.

Respecting the hypothetical questions, it is urged that certain effects of the breathing of the lint were stated therein as having occurred on the 7th of December while plaintiff was at work, when, in fact, they were noticed at night after she had returned to her home. We have examined the question and find that the statement of the plaintiff of the conditions which she observed during the time she was at the factory were substantially those carried into the question. We are satisfied that no prejudicial error could have resulted to the defendant in permitting the hypothetical questions to be answered as framed. There was no such variation from material facts as to mislead the experts who answered or the jury in the considera tion of the answers given. One of the questions as to assumed facts is almost identical with that put to the doctor who testified for the commission.

It is urged that the answers of the doctors to the hypothetical questions produced only a possibility that the injury complained of resulted as contended by plaintiff. If the testimony of the doctors was restricted exclusively to their answers to the hypothetical questions, the proof would not have been sufficient to support the verdict. Drew v. Industrial Commission, 136 Ohio St., 499, 26 N. E. (2d), 793; Aiken v. Industrial Commission, 143 Ohio St., 113, 53 N. E. (2d), 1018; Pfister v. Industrial Commission, 139 Ohio St., 399, 40 N. E. (2d), 671.

But from an examination of the testimony of the doctors at more length, in conjunction with that of the plaintiff, as to her inhalation of the lint and its subsequent effects, we are of the opinion that, whether the proof on the whole established a probability that the illness complained of was the result of an injury suffered by the plaintiff in the course of her employment, was a question for the jury.

If the testimony of plaintiff is true, the order of the occurrences at the plant and the claimed sequential results were such as are so commonly observed, and covered such a limited period of time, that independent and intervening causes were practically ruled out and lay testimony was probative of the issue of the injury and its causal effect. Village of Shelby v. Clagett, 46 Ohio St., 549, 22 N. E., 407, 5 L. R. A., 606; Boze v. Industrial Commission, 32 Ohio Law Abs., 238; McDonald v. Great Atlantic & Pacific Tea Co., 34 Ohio Law Abs., 380.

The doctors who testified for the plaintiff said that the inhaling of the lint under the circumstances appearing could have caused the subsequent physical condition of which plaintiff complained. The doctor for the defendant said it could not be so caused. The lay testimony was of some effect, in assisting the jury in determining the probable cause of the injury.

There is a marked difference between the character of proof here of the causal result of the claimed injury and that found in the cases which have held that such proof was in the field of scientific knowledge and could not be forthcoming from lay witnesses.

In Aiken v. Industrial Commission, supra, the claim was that the death of the workman from acute myocarditis was attributable to a knee injury which had occurred six years before. In Drew v. Industrial Commission, supra, the question was whether an injury from a fall caused partial paralysis. In Drakulich v. Industrial Commission, 137 Ohio St., 82, 27 N. E. (2d), 932, the issue was whether an injury to the workman’s back resulted in his subsequent death from cancer of the liver. Judge Hart, in the opinion in that ease, said:

“Even if there had been such evidence [that of lay witnesses], it would not have been sufficient to establish the fact of causal connection. This issue presented a field of scientific inquiry * * * [which] could not possibly be within the knowledge of lay witnesses * # * 99

The doctor who testified for the defendant insists that the plaintiff did not suffer an accidental injury. Judge Hart, in Malone v. Industrial Commission, 140 Ohio St., 292, 43 N. E. (2d), 266, so completely covers the cases in Ohio treating of traumatic injury that for us to attempt to do so would be merely repetition, and probably not as effective. The Malone case also discusses the addendum to Section 1465-68, General Gode (117 Ohio Laws, 109), which reads as follows:

“The term ‘injury’ as used in this section and in the Workmen’s Compensation Act shall include any injury received in the course of, and arising out of, the injured employee’s employment.”

The Malone case clearly holds that the amendment broadened the meaning of the term, “injury,” as theretofore found in Section 1465-68, General Code. The concurring opinion of Judge Matthias, concurred in by Judge Turner, gives even greater scope to the meaning of the addendum than does the majority opinion. The Malone case and Maynard v. B. F. Goodrich Co., 144 Ohio St., 22, 56 N. E. (2d), 195, in our judgment, support the conclusion of the trial judge that the question whether plaintiff had suffered an accidental injury was one for the determination of the jury.

We find no error assigned well made. The judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Matthews, P. J.

license: Public Domain

text:
    Flugel, Appellee, v. Meek, Appellee; The Ohio Casualty Ins. Co., Appellant.
    (No. 7887
    Decided July 12, 1954.)

      Mr. Ralph E. Clark and Mr. Ralph E. Clark, Jr., for appellee.

      Mr. Sanford A. Headley, for appellant.
   Matthews, P. J.

This is an action against a licensed real estate broker and the surety upon the bond which he gave under the provisions of Section 6373-35, General Code (Section 4735.12, Revised Code), to recover the amount paid to the broker in a transaction involving the purchase and sale of certain real estate. The case was submitted upon an agreed statement of facts between the plaintiff and the surety. The trial court found in favor of the plaintiff and entered judgment against the surety for the full amount paid by the plaintiff to the defendant broker. By agreement of the parties, the action against the defendant broker was allowed to remain pending. This appeal is by the surety from that judgment.

That the defendant J. Finley Meek was a duly licensed real estate broker at the time and that the defendant The Ohio Casualty Insurance Company, hereinafter referred to as appellant, was surety upon his bond, is not disputed. It is admitted that the defendant Meek was, at the time, engaged in the business of a licensed real estate broker and held himself out to the public as such.

On June 28, 1951, the defendant Meek and the plaintiff signed a written document with a printed heading, entitled, “Contract To Purchase.” It is a printed form, prepared by the Cincinnati Real Estate Board, containing blank spaces for insertion of specific provisions. Who presented this form and who filled in the specific provisions does not expressly appear, but it is a fair inference that the defendant broker did so. It purports to be an offer by the plaintiff “to purchase from the owner through you as his agent — lot No. 1 of J. Finley Meek’s Subdivision— for the sum of thirteen thousand nine-hundred dollars,” $1,500 of which was payable in cash. This was followed by the statement, “balance payable subject to a land contract for a period of three years at 5 per cent interest. Said contract is to be paid in monthly installments of $125 per month. Purchaser may at any time prior to the three years pay off said land contract without any penalty.” This was followed by a provision requiring a conveyance by general warranty deed on or before 120 days from date. The offer closed with this provision: “1/we hereby deposit one thousand five hundred dollars ($1,500) as above provided with J. Finley Meek, realtor, as agent for the seller, to apply on the purchase price which is to be retained by the agent until the terms of this contract have been complied with.”

This offer was signed by the plaintiff on a line at the end.

Following the plaintiff’s signature is a paragraph in print in which it is recited that the offer “submitted to me/us by you as my/our agent” is accepted and that the established commission would be paid and authorizing the application of the cash payment to such commission. There was a line for a signature following this paragraph, but no signature appears thereon.

At the bottom of the form is an acknowledgement of the receipt of “one thousand, five hundred dollars ($1,500) as above provided.” On the line below is the signature, “J. Finley Meek, Realtor,” and immediately below the line is the legend, “Name of Broker.”

It is apparent that this offer is indefinite and ambiguous. The provision for a conveyance by warranty deed in 120 days is inconsistent with the provision for the payment of $125 per month upon a land contract. It would seem that the parties contemplated that this contract would or might be followed by another contract (a land contract) for the payment of the purchase price in monthly installments. It is suggested that in the meantime the vendor was obligated to construct a residence on the lot. However, that does not appear in the record, although color is lent to the suggestion by a letter of April 25, 1952, in which defendant Meek notified the plaintiff that, owing to a change in the interpretation of a governmental regulation, he would be unable to finance a house on a land contract and suggested that the plaintiff should seek other means of financing.

While it is clear that the plaintiff intended to enter into a contract for the purchase of a lot of land and paid $1,500 to the defendant Meek to apply on the purchase price, the agreed statement of facts leaves it very doubtful whether the parties had reached a final agreement as to the specific terms. At any rate, the parties did not treat either the provision for paying $125 per month or the provision for a conveyance within 120 days as having become operative, and, finally, on defendant Meek’s refusal to finance the building of a house, as he had agreed, plaintiff demanded the return of the $2,000 which he had paid. On Meek’s failure to comply with the demand, this action was filed.

At the time the payment of $1,500 was made, the penalty in the bond of the appellant was $1,000. At the time a later payment of $500 was made, the penalty in the then current bond was $5,000. Because of this situation, it is conceded by the plaintiff that the liability of the appellant on account of the first payment is limited to $1,000 and interest, and, for that reason, the judgment must be modified by reducing it to conform to the limit prescribed in the bond.

But the appellant denies all liability. It asserts that its obligation under the statute and the bonds is limited to transactions in which the defendant Meek was in fact acting as agent or broker for another and does not apply to a transfer of his own real estate, and the admitted fact is that Meek was the owner of the lot. In such a situation, It asserts that the fact that the owner was also a licensed real estate broker is entirely immaterial.

On the contrary, the plaintiff contends that, regardless of the actual fact, the defendant Meek dealt with him as though he were representing another and held himself out to him as a licensed real estate broker in the transaction, and that, therefore, he and his surety are liable.

As more fully developed later, we agree with this contention of the plaintiff. We are of the opinion that members of the public, in the absence of knowledge to the contrary, have a right to accept the representations of a licensed real estate broker as to the capacity in which he is acting in the transaction, that this representation mav be by either words or deeds, and that the surety upon his bond is bound by such representations.

To decide in which class this case falls — whether defendant Meek assumed the guise of a licensed real estate broker in this transaction — perhaps a more detailed analysis of the facts appearing in the agreed statement is advisable.

It will be noted that the offer is not addressed to defendant Meek; that it is addressed to the owner through Meek as his agent; that the cash payment was deposited with Meek as agent of the owner; and that Meek receipted therefor as realtor and not as owner. AH through the offer are found references indicating that Meek was acting in a representative capacity. At no place is he referred to as the owner of the lot. It is true that the lot is described as being located in a subdivision known as ”J. Finley Meek’s Subdivision,” which might suggest inquiry, but is no evidence of ownership. It only identifies the property. At any rate, the trial court found in favor of the plaintiff, and by so doing must have found (if necessary to sustain its finding) that the plaintiff, without knowledge to the contrary, relied in good faith upon the repre^sentations of the defendant Meek that he was acting as a licensed real estate broker for an unnamed owner other than himself. We are of the opinion that there is sufficient data in the agreed statement to justify that inference.

Appellant assumes that it is in a position to assert the admitted fact that J. Finley Meek was the owner of the lot which was the subject matter, and points out that he was in fact acting for himself and not as the agent of another, and, therefore, was not acting as a licensed real estate broker for whose faithful performance of duties it had become surety. Counsel point to Section 6373-25, General Code (Section 4735. 01, Revised Code), defining “real estate broker” as “any person * * * who for another and for a fee * * * sells * * * or offers * * * to negotiate the sale * * * any real estate,” and particularly to the provision in the same section that the term, “real estate broker,” as therein defined, should not be construed to include any person who sells or negotiates for the sale of his own real estate or interest therein. From these postulates, the conclusion is reached that the terms of the bond are inapplicable to the transaction and therefore the appellant is not liable.

But this solution disregards the appearance of the transaction produced by the representations of the principal in the bond, that is, by J. Finley Meek. Can either the principal or his surety ignore the appearance of a transaction created by the false representations of the principal? We are of the opinion that on general principles of estoppel, defendant Meek cannot be heard to repudiate the capacity in which he appeared to act, and that the surety upon his bond is also bound by that estoppel. There is no suggestion in the agreed statement that the plaintiff knew that the defendant Meek was acting in his own, and not in a representative, capacity, or that he did not take him at his word. If the contrary was the fact, if defendant Meek notified the plaintiff that he was the owner and acting as such, after having represented the contrary, we believe the burden of going forward with such evidence was upon appellant. That the plaintiff relied on the representation is manifest. There was no other representation or fact in the record upon which he could rely. Any doubt on that score is resolved in plaintiff’s favor by the finding of the trial court.

The Real Estate Brokers’ Act creates a confidential relationship between such brokers and those with whom they deal. Therefore, a duty of disclosure was imposed on the broker. That fact, and the fact that he had created a situation justifying the conclusion that he was acting as a licensed broker in this transaction required an explanation. In the absence of explanation, a fraud was perpetrated upon the plaintiff, in that he was allowed to suppose that he was making a deposit of money with a licensed, bonded, broker, and not with defendant Meek as owner.

We have been cited to no Ohio case bearing any close analogy to this case. Appellant places some reliance upon Ruby v. Hardin, 33 Ohio Law Abs., 544, decided by this court, but its inapplicability is made manifest by pointing out that there was no transfer or negotiation for such a transfer in the transaction. The contract involved was for the construction of a building on land owned at all times by the plaintiff. The only common factor is that the defendant was a licensed real estate broker in each case.

The case of Mapes v. Foster, 38 Wyo., 244, 266 P., 109, bears a striking similarity to this case. Wyoming had a law regulating real estate agents and requiring the giving of a bond as a condition to securing a license, conditioned on accounting for all funds entrusted to them. Poster was a licensed real estate agent and the Southern Surety Company was the surety upon his bond. Poster represented to Mapes that he was acting for an unnamed widow who owned a homestead right. Mapes entered into an oral contract to buy the homestead right and paid Poster $600 therefor. The transfer was not made and Mapes demanded that Poster repay him. On his failure, the action was brought by Mapes against Poster and the Southern Surety Company to recover the amount Mapes had paid to Poster. Southern Surety Company defended on the ground “that the defendant Edwin B. Poster, in and about the transaction complained of in the petition herein, was acting for and on behalf of himself alone, and that the plaintiff at all of the times complained of, had full knowledge of the fact that the defendant Poster was so acting * *

At the trial, the plaintiff offered to prove “that the defendant Poster represented to plaintiff that he was agent for the widow lady, and that he was working for this widow lady in the sale of the real estate.” Southern Surety Company objected to this testimony and the court sustained the objection. The plaintiff introduced evidence that Poster did not represent the unnamed widow, that he and the unnamed widow had conflicting claims to the homestead, and that Poster later filed an action contesting the widow’s blaim; but lost the action. Judgment was entered for Southern Surety Company. On appeal to the Supreme Court, that court stated the issue to be:

“The principal and controlling questions' which thus arise in the case are, first: Were these admissions and representations of Foster admissible in evidence against the surety? and, second, if they were so admissible: What effect shall be given them as against that party?”

Upon the first question, the court held that Foster’s statements that he was acting as agent were clearly admissible against him as an admission against interest, and then considered whether it was admissible against Southern Surety Company, saying in part on that subject:

“It being clear then, that the representations of Foster, concerning the capacity in which he dealt with the plaintiff, were admissible against him, we are led to consider the rule applicable where declarations of a principal admissible against him are offered in evidence in a suit wherein both the principal and surety are sued jointly, as in the case at bar.
“In 2 Brandt on Suretyship (3d Ed.), Sec. 795, it is said:
‘ ‘ ‘ When the suit is against the principal and surety jointly on a joint or joint and several obligation, an admission or declaration of the principal, which is competent evidence against him, is also generally held to be competent against the surety. ’
“In Stearns on Suretyship (3d Ed.), page 300, it is said:
“ ‘Where the principal and surety are sued jointly, the admission of the principal being competent against himself cannot be excluded, and being admitted as against him, will generally be considered against the sureties.’ ”

After concluding that Foster’s statements were admissible against Southern Surety Company, the court considered the effect of such statements upon the liability of the surety. The authorities holding that the surety was bound thereby were reviewed at great length, and then the court stated its own view in this language:

“Clearly, Foster would be estopped from denying the truth of his statements.
“If Foster could not set up a defense of this sort, why should his surety be permitted to do so? This is not a defense personal to the surety. In making it, the surety was undertaking to establish the capacity in which Foster acted. The surety really represented him in making the defense. Should the surety have greater rights than he — the claim arising because of his conduct and being the same against both him and his surety? Both are sued on the same bond, too, which both signed. Should the surety be permitted to establish the fact contrary to Foster’s representations, to the hurt of another, when Foster himself would, not be allowed to do that? We are not inclined to think so. A contrary view would be not only to disregard the principles announced by the authorities cited above, but in large measure to render the act licensing and bonding real estate agents passed by our Legislature quite valueless, so far as protecting the public is concerned. It must be borne in mind that such acts are passed for the express purpose of affording the public protection in the handling by agents of important and valuable transactions relating to real property. Firpo v. .Murphy, 72 Cal. App., 249, 236 P., 968. Laws are to be construed in the light of the obvious purpose for which they are enacted.”

The Wyoming Act contained a provision similar to the Ohio provision, excluding from the operation of the Act transactions by an owner relating to his own real estate. Referring to that provision, the court stated that it regarded it as “administrative merely,” and then said:

“The clause of the statute reading, ‘the provisions of this act shall not apply to any person, firm or corporation who shall perform any acts aforesaid with reference to property owned by such person, firm or corporation, or the purchase of real estate for the use of such person, firm or corporation,’ seems to us to be administrative merely. It does not release a liability which other principles of law establish. The clause simply excuses one who deals for himself, from taking out a license and giving bond, and, of course, would relieve from the criminal punishment provided by the act for its violation. In this connection it is to be observed that the statute declares that a person who ‘offers for sale, buys or offers to buy, or negotiate the purchase or sale * * * of real estate * * * for others as a vocation,’ is a real estate agent. And a single act is asserted by the statute to constitute one as such. There does not seem to be an exception in the daw, providing that one is not a real estate agent, if he offers real estate for sale for another, when the fact is that either he or someone else whom he does not represent actually, owns the land. The statute is quite broad enough to include his representations on the point, whether true or false, and thus construed the public in dealing with such an agent will be protected.”

The reasoning in these quotations is equally pertinent to the facts in this case. It is dispositive of the case.

While we have treated this case on the assumption that knowledge by the plaintiff that defendant Meek owned the land, which was the subject of negotiation, would bar a recovery, we, nevertheless, agree with plaintiff’s counsel that under Section 6373-25, General Code, where the licensed real estate broker, as in this transaction, holds himself out as such, the ownership of the real estate and the knowledge or lack of knowledge on the part of the party dealing with him are not material. Such person is justified in dealing with him according to the character chosen by him, and he is under no duty to question or inquire about it, or make any investigation to determine what, if any, record or concealed interest in the real estate may be owned by him. Nor is he obliged, on obtaining information that the broker is also the owner, to treat him from that time on as owner and not as broker. Of course, if it appeared that the plaintiff had conspired with the broker to defraud the- surety, a different question would be presented.

The defendant Meek, in the case at bar, was a licensed real estate broker. Without any collusion with the plaintiff, he held himself out and dealt with the plaintiff as a licensed real estate broker. Under such circumstances, it seems to us that the spirit and letter of the law requires that he and his surety should bear the responsibility of a licensed real estate broker.

For these reasons, the judgment will be modified, as heretofore indicated, and as modified, affirmed.

Judgment modified and affirmed as modified.

Matthews, P. J., and Hilderrant, J., concur.

Ross, J., concurs in the judgment.


author: Fess, J.

text:
    LoGuidice et al., Appellees, v. Harris et al., Appellants.
    (Nos. 3617, 3618 and 3622
    Decided June 28, 1954.)

      Mr. Charles B. Creighton, for appellees.

      Messrs. Bendtnell & Bowers and Mr. Alvy T. Witt, for appellants.
   Fess, J.

These are separate appeals on questions of law by defendants Rendinell (No. 3617) and Hall (No. 3618) from a judgment entered on a verdict directed by the court in favor of the plaintiffs and against said defendants. Plaintiffs’ appeal (No. 3622) is from a judgment dismissing defendant Larrimer. The defendant Harris (upon whom no service was had), in 1941, filed claim for compensation with the Industrial Commission for injuries alleged to have been sustained in the course of his employment by LoGuidice and others, partners — the plaintiffs in the instant action. The partners were noncomplying employers under the Workmen’s Compensation Act.

In 1944 the Industrial Commission found that Harris, on November 15, 1940, was not an employee of the partnership within the meaning of the Workmen^ Compensation Act and disallowed the claim. Thereafter Harris filed his petition in the nature of an appeal against the partners in the Common Pleas Court. To that petition the partners filed an answer denying that they had employed more than three employees or were amenable to the act. They further alleged that Harris was engaged by them as an independent contractor and not as an employee. Defendants Rendinell, Hall and Larrimer, in the instant action, were attorneys for Harris in his action against the partners. The case was assigned for trial on April 9, 1945. Pursuant to negotiations for settlement, Harris, Rendinell and Hall executed an agreement and release reciting that in consideration of the court entering a finding that Harris was entitled to participate in the benefits of the Workmen’s Compensation Act, Harris, Larrimer, Hall and Rendinell would save the partners harmless from all liability which might arise by reason of any awards made by the Industrial Commission and chargeable against said partners. They further agreed to pay personally the full amount of any award by reason of such judgment, which should be charged or would become a liability against the partners.

The agreement provides further that it was expressly understood that, this agreement was solely executed to provide an absolute indemnity to the partners from all claims, charges, or demands of any nature arising out. of the claim of Harris set forth in the pending action, and “that Harris and his attorneys, Hall and Rendinell, individually each and for himself agrees to the said guarantee and indemnity and will conform and complete any and all details and arrangements and provide that (the partners) are saved harmless from any claim of whatever kind or matter that may arise in the aforesaid mentioned cause of action.” The agreement was not signed by Larrimer but was signed by Harris, Hall and Rendinell.

On the same day, Harris signed an instrument releasing the partners from any and all claims arising out of his claim for compensation filed with the Industrial Commission.

On April 17, 1945, a consent entry was approved by the court, finding on the issues joined in favor of the plaintiff and that plaintiff was entitled to participate in the benefits of the Workmen’s Compensation Act. A further entry was filed April 23, 1945, overruling a motion for a new trial, re-entering judgment including allowance of an attorney fee to D. F. Rendinell. In compliance with the judgment, the Industrial Commission made an award and payment to Harris. In April, 1946, an action was brought by the state to recover from the partners the amount paid to Harris, and in June, 1946, judgment by default was rendered against them. In January, 1951, a petition to vacate the default judgment was filed and, upon the court’s refusal to vacate, an appeal was taken to the Court of Appeals. The claim of the state was finally settled by the payment of $2,100. Incident to this litigation, the partners incurred and paid $834.56 in attorneys’ fees and costs.

The instant action is brought on behalf of the former partners against Harris, Rendinell, Larrimer and Hall upon the agreement of April 9, 1945, for reimbursement of the $2934.56.

At the conclusion of the case, the defendant Larrimer was dismissed for failure of proof that he had entered into the agreement. Plaintiffs and defendants Hail and Rendinell severally moved the court to direct a verdict in their favor, but Rendineil reserved the right to have his case submitted to a jury in the event the motion should be overruled. The trial court correctly decided that under the proof no question of fact was presented. It thereupon directed the jury to return a verdict in favor of the plaintiffs and against the defendants Hall and Rendineil for the sum of $2934.56. From the judgment entered on the verdict, defendants Hall and Rendineil appeal.

By way of preface to the discussion of the principles supporting our decision, it must be stated that the conduct of Harris’ attorneys in executing the indemnity agreement savors of champerty and maintenance. Primarily, champerty is a bargain between one having an interest in a law suit, either as plaintiff or defendant, and another who is a stranger thereto, whereby such stranger, called the champertor, agrees to carry on the prosecution or defense of such suit at his own expense, in consideration of his receiving a part of the proceeds in the event of a favorable determination, of the litigation. Maintenance is an officious intermeddling in a suit that in no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it. Champerty is a species of maintenance. Key v. Vattier, 1 Ohio, 132; Weakly v. Hall, 13 Ohio, 167; Stewart v. Welch, 41 Ohio St., 483; Pennsylvania Co. v. Lombardo, 49 Ohio St., 1, 29 N. E., 573; Brown v. Ginn, Trustee, 66 Ohio St.., 316, 64 N. E., 123.

In Ohio, a contingent fee agreement, pursuant to which an attorney agrees to render legal services and to advance costs and expenses in the first instance, has been held valid and not unlawful upon the ground of champerty. Reece v. Kyle, 49 Ohio St., 475, 31 N. E., 747. In the latter case, reference was made to Weakly v. Hall, supra, and Stewart v. Welch, supra, and the court pointed out an important distinction between those cases and the Reece case, saying, at page 484:

“In each case the suit was to be prosecuted wholly without cost or expense to the original owner of the claim, and it does not appear that the party maintaining the contract had any interest in or claim upon the cause of action other than that given by the assignment. ’ ’

And in Davy v. The Fidelity & Casualty Ins. Co., 78 Ohio St., 256, 85 N. E., 504, the court holds that while a contract for an attorney fee contingent upon recovery is ordinarily valid, yet when such contract stipulates that the client shall not compromise or settle his claim without the consent of the attorney, it is champertous and voidable at the option of the client. In refusing to apply the stringent common law and English rule against champerty in Reece v. Kyle, supra, the court said, at page 488:

“Each oase as it presents itself may be safely left for disposition on its own peculiar facts.”

In the instant case, the attorneys did not apparently bear the cost expenses of the litigation, but incident to the prosecution and successful termination of the action they agreed to indemnify, the defendants against whom judgment was taken for any loss they might sustain as a result thereof.

In the absence of evidence directly disclosing the intent and purpose of the agreement, it may reasonably be inferred that it was the intent of the parties and their counsel, surreptitiously and without the knowledge of the court, to have entered a judgment by consent which would require the Industrial Commission to pay the claim. The parties and their counsel knew that under the law, upon payment of the claim, the partners would become liable for reimbursement to the commission. It may therefore be assumed that they anticipated the commission would fail to assert its lawful claim against the partners. But counsel for the partners were unwilling to have their clients gamble upon the possible failure of the commission to assert its claim, and, prior to consenting to the judgment, insisted upon the execution of the indemnity agreement not only by the claimant but by his attorneys.

After somewhat diligent research, we have discovered no decision directly bearing upon such an unusual contract. Although no statute relating thereto (other than Section 2917.43, Revised Code) has ever been enacted in Ohio, champerty and maintenance have been the subject of judicial inquiry, and the conduct of attorneys is subject to proper scrutiny by the courts. Courts continue to be careful not to sanction contracts which appear to encourage a gambling spirit — one leading to the prosecution of pretended claims for a possible reward. Reece v. Kyle, supra.

In Stewart v. Welch, supra, it was held that a contract whereby the claim was assigned to Welch, who brought suit in his own name, could not be enforced, since the contract was made for the purpose of carrying on litigation without expense to and free from control of the assignor who was to receive nothing except a share of the recovery. An attorney who agrees to bear the cost and expenses of a lawsuit regardless of recovery is guilty of maintenance; and an attorney who agrees with his client to indemnify the opposing party from loss incident to the litigation is likewise guilty of maintenance. We therefore conclude that the contract upon which the instant action is brought is against public policy and void.

The contract is also violative of Section 1465-101, General Code (Section 4123.82, Revised Code), which provides in no uncertain terms that “all contracts and agreements shall be absolutely void and of no effect which undertake to indemnify or insure an employer against loss or liability for the payment of compensation to workmen * * * for * * * injury * * * occasioned in„.the course of such workman’s employment * *

As observed by the Supreme Court in Midvale Coal Co. v. Cardox Corp., 152 Ohio St., 437, 445, 89 N. E. (2d), 673, Section 1465-101, General Code, was enacted to prevent competition with the state insurance fund by ihsurance companies engaged in the business of furnishing private insurance to indemnify or insure employers against loss or liability for the payment of workmen’s compensation. But the language quoted above is all-inclusive and in broadest terms declares any and all contracts undertaking to indemnify an employer against loss or liability for payment of workmen’s compensation absolutely void. It might have been contended that the language was intended to bar indemnity contracts with respect to prospective losses or liability, but in Truscon Steel Co. v. Trumbull Cliffs Furnace Co., 120 Ohio St., 394, 166 N. E;, 368, the Supreme Court held in the first paragraph of the syllabus:

“An employer, whether self-insurer or otherwise, cannot recover from any source any sum to reimburse an amount paid under the Workmen’s Compensation Law to injured employees, whether the injury results from the negligence of some third party, or otherwise.”

In the Truscon case, supra, a self-insurer who had paid an award to its employee was denied recovery of such amount from a third party whose negligence caused the injury to such employee. In reaching its conclusion in the Midvale case, the court distinguished the Truscon case and limited the interpretation of the syllabus to the facts and question therein presented to the court, but it did not overrule or modify the decision. In the Midvale case the court also said “that Section [1465-101* General Code] will not ;prevent a recovery for a breach of a contract which was not in any manner an indemnifying or insuring agreement. ” (Italics supplied.) The import of this expression is carried in the first paragraph of the syllabus.

Appellees seek to circumvent the application of the statute by asserting that the indemnity agreement “is a contract whereby in consideration of an employer relinquishing his defenses to an action by a claimant under the compensation act, and consenting to a consent decree in favor of the claimant being entered, the claimant and counsel for the claimant agreed to indemnify and save harmless the employer from any and all awards or expenses that the employer might be forced to pay by reason of said consent decree being entered.” In other words, it is an indemnity agreement incident to the settlement of a pending lawsuit. Nevertheless, the purpose and effect of the agreement was to indemnify an employer against loss for the payment of workmen’s compensation.

On plaintiffs ’ appeal from that part of the judgment dismissing defendant Larrimer, the judgment is affirmed. On the appeals of defendants Hall and Rendinell, the judgment is reversed and final judgment entered for such defendants.

Judgment accordingly.

Conn and Deeds, JJ., concur.

Fess, Conn and Deeds, JJ., of the Sixth Appellate District, sitting by designation in the Fifth Appellate District.


author: Wiseman, P. J.

text:
    In re Estate of Trent.
    (No. 5068
    Decided October 8, 1954.)

      Messrs. Lopper éb Martin and Mr. Robert E. Al-bright, for appellant.

      Mr..William 11. Brooks and Mr.'Ray E. Hughes, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from á judgment of the Probate Court of Franklin County, dismissing exceptions filed to an executor’s account.

■’ The exceptor alleged that the executor failed to charge himself with all the assets of the estate, namely, three mortgages on real estate, describing the property. In an amended application for determination of inheritance tax, the executor in his schedule reqúiring a listing of property transferred during the lifetime of the decedent listed these three mortgages as having been transferred to him as a gift. When this matter came on for hearing counsel, for the exceptor stated that the executor claimed that the mortgages were given to him during the lifetime of decedent. It is conceded that the question for determination was the validity of the gift and the transfer during the lifetime of the decedent.

All four assignments of error relate to one legal question: Whether the Probate Court erred in dismissing the exceptions as not being the appropriate procedure to obtain the relief sought. The- Probate Court held that the executor, on exceptions to an accounting, is not compelled to account for property, the title and possession of which passed out of the decedent during his lifetime.' Counsel for the exceptor cite the case of In Matter of Sebastian Raab’s Estate, 16 Ohio St., 273, which is distinguishable on the facts. In that case the administrator was indebted to the estate and the debt became money in the hands of the administrator by force of the provisions of the statute. Under Section 10509-67, General Code, now Section 2115.12, Revised Code, when the executor owes a debt to the estate such debt is regarded as “so much money in his hands.” In commenting on the effect of this statute the court, in James v. West, Admr., 67 Ohio St., 28, at page 45, 65 N. E., 156, said:

“The rule is so far unsatisfactory that it should not be extended, but should be confined to cases in which the administrator owes the debt individually and unconditionally.”

In the case at bar the executor claims ownership of the mortgages in question.

In the case of Raab’s Estate, supra, the court, on page 284, said:

“The Probate Judge was both empowered and required, to determine the questions thereby submitted, or to require their determination in one of the methods authorized by Law.” (Emphasis ours.)

In the instant case the Probate Court held that the exceptor did not properly invoke the jurisdiction of the court, and in dismissing the exceptions suggested that the exceptor use one of the methods authorized by law, to wit, the procedure outlined in Section 10506-67, General Code, now Section 2109.50, Revised Code. In view of the fact that the executor claims ownership of the mortgages, a civil action may be the better remedy.

In dismissing t.he exceptions the Probate Court did not commit prejudicial error.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Skeel, J.

text:
    Stone, Appellant, v. Stone, Appellee.
    (No. 23276
    Decided November 3, 1954.)

      Messrs. Jones, Day, Cocldey & Iteavis and Messrs. Apple é Apple, for appellant.

      Mr. Ezra Z. Shapiro and Mr. Joseph H. Per sky, for appellee.
   Skeel, J.

This appeal comes to this court ou questions of law from an order of the Common Pleas Court of Cuyahoga County granting defendant’s motion for alimony pendente lite, interim attorney fees and support for the twelve-year old son of the parties, pending final hearing of plaintiff’s action for divorce and defendant’s cross-petition for separate maintenance and support. The court ordered plaintiff to pay defendant $5,000 interim attorney fees, $1,725 per month temporary alimony and $325 per month for the support of their son.

The plaintiff’s petition seeks a divorce on the grounds of gross neglect of duty and extreme cruelty. The defendant’s cross-petition seeks separate maintenance and support on the same grounds, denying by answer that she has failed to fully discharge her duties as plaintiff’s wife.

Evidence on the motion established that the parties separated February 27, 1954, that is to say, plaintiff claiming good cause left the then address of the parties at 2391 Ashurst Road and took up his place of abode with his parents at 3701 Washington Boulevard in University Heights. Defendant is therefore left in the occupancy of the residence on Ashurst Road. This property is a two-family house owned by defendant and the second floor suite is occupied by her mother at a rental of $75 per month which is paid to the defendant.

The plaintiff is a very successful business man, now worth in the neighborhood of one million dollars with a gross income annually in excess of $105,000. His net income after taxes is between fifty and sixty thousand dollars.

The defendant’s financial standing is substantial. Her total assets, including cash bank deposits in the sum of $33,000, government bonds, stocks and the residence valued at $20,000 are about one hundred thirty five thousand ($135,000) dollars and her yearly income derived from the foregoing property is approximately $4,800.

The minor son of the parties, now twelve years of age, attends public school and is privately tutored in Hebrew and music in addition to his regular schooling.

The parties, before separation, lived very frugally. Both parties so testified and while the record does not make a full disclosure of the total amount usually expended by them, or either of them, in maintaining the household prior to February 27, 1954, it is clearly evident that the court’s order pendente lite gave no consideration to the economic level upon which the parties chose to live or to the defendant’s needs but rather based the order entirely on the plaintiff’s ability to pay.

The appellant’s claim of error is that the court in ordering plaintiff appellant to pay $1,725 per month as temporary alimony and $325 per month as support for the minor child, or a total of $2,050 per month, plus $5,000 interim attorney fees, constituted an abuse- of discretion.

Section 3105.14, Revised Code, provides:

“On notice to the opposite party of the time and place of the application, the Court of Common Pleas, or a judge thereof in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit and allowances for the support of minor children of the marriage or by adoption during the pendency of the action for divorce, or alimony alone. When an appeal is taken by either party, the Court of Appeals, or a judge thereof in vacation, may grant like alimony and support during the pendency of the appeal, upon like notice.”

It is to be noted that this section empowers but does not require the court upon a proper showing and in a proper case, to award reasonable interim expenses, temporary alimony and support to a party in a divorce action. A party is not entitled to such an award as a matter of right. Whether or not an award should be made either for temporary alimony or interim expenses (attorney fees) is within the sound discretion of the court, giving due consideration to surrounding facts and circumstances. The factors to be considered in making such awards are the ability of the party against whom the order is made to pay, and the present needs of the party in whose favor the award is given, judged by the standard upon which the parties lived prior to the time domestic difficulties occurred, provided such standard was the free choice of the parties during such period of time.

In this case the plaintiff husband, in seeking a divorce from the defendant wife on grounds of extreme cruelty and gross neglect of duty, must, until final hearing: of the case, as head of the household (Section 3103.03, Revised Code), continue to support both his wife and child in the manner as was his custom prior to the divorce action, when there is no claim that the standard previously maintained was not the free choice of the parties or wholly inadequate. And this obligation of support continues until the final decree, regardless of the wife’s financial ability to provide for her own needs. Englund v. Englund, 92 Ohio App., 527, 110 N. E. (2d), 35.

In the case of Norton v. Norton, 111 Ohio St., 262, at page 269, 145 N. E., 253, the Supreme Court, in dealing with the question of the legal basis of an order of alimony pendente lite, said:

“The right to the amount is to be determined by the wife’s necessities and by the husband’s means.’’

The only purpose of such an award is support and not a means of allowing a wife a proportionate share of her husband’s income. In many jurisdictions, the right to temporary alimony is not only dependent upon the wife’s needs but also on the lack of her ability to provide them.

In Nelson on Divorce and Annulment (2 Ed.), 423, Section 12.27, it is said:

“The primary consideration affecting the granting of an allowance to the wife is her needs. If she applies for an allowance, she must show that she has not sufficient means to maintain herself pending the action and/or that she has' not sufficient means to pay the expenses of prosecuting or defending the matrimonial action. Ordinarily neither temporary alimony nor suit money should be granted without such proof, and the application should ordinarily be denied where she is not in need of financial assistance from her husband for her support or her expenses in prosecuting or defending the matrimonial action.”

It would seem to be the better view, however, that where action for divorce is commenced by the husband, his duty of support continued at least until final decree.

In granting interim support under the provisions of Section 3105.14, Revised Code, if the court goes clearly beyond the present needs of the wife and awards an amount far in excess of what the parties had been accustomed to use in their daily living by common consent, and bases the award entirely on the ability of the husband to pay without other limitation, such an award in effect would be a division of property and therefore without legal foundation in fact and law, and to make such an order would constitute an abuse of discretion.

Here the award would total more than $24,000 a year. The award for the living expenses of the wife and son per year is more than the value to be ascribed to the two-family house owned by the defendant in which, the family lived before the action was begun and in which defendant and her son now occupy the first floor suite.

The court received into evidence a memorandum prepared by defendant’s counsel, setting forth item by item his estimate of what the defendant’s needs would be pending the final hearing of the case. Not only was such memorandum received as evidence, over the objection of the plaintiff (for which there can be no legal justification) but a number of the items as listed were included in the exact amount as listed as a part of the award without credible or competent supporting evidence. The award included funds for charity and vacations just as if it were a final decree for the defendant granting her prayer for separate maintenance and support before the trial of the issues presented by the pleadings. The amount of the order is far in excess of. any of the reasonable immediate needs for support of the defendant and her son and was based entirely on plaintiff’s ability to pay without consideration given to other essential factors.

The discretion which a court must exercise in awarding temporary support, which award must be made before either party is required, to sustain or defend against the acts charged as a breach of the respective marital duties of the parties, that is, before the trial of the issues in the case, is a legal discretion applying recognized rules or principles of law to established facts. An abuse of discretion is manifest when such legal principles are completely disregarded. Spreckles v. Spreckles, 111 Cal. App. (2d), 529, 244 P. (2d), 917.

We must conclude that upon the undisputed facts presented by this record, the court committed an abuse of discretion in issuing its order in the amounts allowed for temporary support and alimony.

We likewise hold that the order for interim attorney fees as expenses for the suit cannot be justified on any legal basis. This defendant is possessed of sufficient funds to present her defense to plaintiff’s petition and to prosecute the claims contained in her cross-petition.

In 35 A. L. R., page 1101, in the annotation following the case of Wallman v. Wallman, 48 Rev., 239, 229 P., 1, we find the following:

“The general rule is that a wife is not entitled to ah allowance as suit money to maintain her divorce suit where she has sufficient means of her own.”

We recognize that the Supreme Court in the case of Stuart v. Stuart, 144 Ohio St., 289, 58 N. E. (2d), 656, said that the right of a wife to expense money including attorney fees was provided for by statute, but in that case the court found that “the only recourse of the plaintiff is to pay her counsel out of such alimony. ’ ’

And in the case of Norton v. Norton, supra, the court said, at page 270:

“Temporary alimony is granted the wife upon the theory that she is entitled to make her defense, and that she has no means to defend herself during the pendency of the suit. In the case herein, ample evidence exists of the wife’s financial inability to conduct the defense.”

Whatever may be the conclusion of the court upon the hearing of this case on the merits, when this subject may be fully considered, there is upon the state of the record seeking temporary support and interim expenses (attorney fees) no legal justification for an order directing the plaintiff to pay to the defendant $5,000 as attorney fees to enable her to defend against plaintiff’s action for divorce' and to prosecute her cross-petition for separate maintenance and support. Such an order upon this record constitutes an abuse of discretion.

The order appealed from is, for the foregoing reasons, reversed and the motion remanded for further proceedings.

Order reversed.

Hurd, P. J., and Kovachy, J., concur.


author: Deeds, J.

text:
    Nellis, Appellee, v. Nellis, Appellant, et al.
    (No. 4814
    Decided January 24, 1955.)

      Mr. Clarence J. Applegate, for appellee.

      Messrs. Ohlinger, Koles, Wolf & Flues, for appellant.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, Division of Domestic Relations, of Lucas County.

The cause is presented to this court for a review upon a transcript of the record and proceedings had in the Court of Common Pleas, Division of Domestic Relations, bill of exceptions, and the briefs and oral arguments of counsel for the parties respectively.

The parties will be referred to herein as they appeared in the trial court, the plaintiff-appellee as the plaintiff, and the defendant-appellant as the defendant.

The defendant has filed in this court his assignment of errors as follows:

“The trial court erred in amending and modifying the agreement of separation voluntarily entered into between the parties hereto by and with the advice of their respective attorneys without any evidence of fraud, coercion, failure to disclose or other evidence violating the confidential relationship of husband and wife, as set forth in Section 3103.05 of the Revised Code of Ohio.”

The action was instituted in the Court of Common Pleas, Division of Domestic Relations, as a suit for divorce and alimony by the filing of a petition in which the plaintiff alleged, in substance, the residence of the plaintiff, the marriage of the parties, that defendant had been guilty of extreme cruelty and gross neglect of duty toward plaintiff, a description of the real estate and personal property owned by the parties, and other allegations not pertinent to a decision on this appeal relating to the employer óf the defendant and a certain bank in which certain funds of the parties were on deposit, although both the employer and the bank were also parties defendant in the action.

The pertinent part of the prayer of the petition was for a divorce, alimony, temporary and permanent, or a division of the property involved and owned by the parties, and “such other and further relief as is fair and equitable in the premises.”

The defendant filed his answer to the petition and also his cross-petition, in which answer he admitted the legal residence of the plaintiff, the marriage of the parties, and generally his property and income as alleged by the plaintiff, but denied that he had been guilty of cruelty or gross neglect of duty toward the plaintiff.

In his cross-petition, omitting the formal allegations, the defendant charged the plaintiff with having been guilty of gross neglect of duty, and by the prayer asked that the petition of the plaintiff be dismissed, that defendant be granted a divorce, that an equitable division of the property be made, and “for any and all other relief to which he may be entitled in the premises. ’ ’

It appears from the journal entry recording the judgment of the trial court here for review, in reference to the answer and cross-petition of the defendant, “that said defendant has filed an answer and cross-petition in this action and has requested that said answer and cross-petition be withdrawn, and the same is hereby ordered withdrawn.”

By the judgment of the Court of Common Pleas, Division of Domestic Relations, the plaintiff is granted a divorce, and reference is made in the judgment entry to a certain property settlement and alimony agreement as follows:

“It is further ordered, adjudged and decreed that the agreement between the parties hereto be, and the same is hereby approved as modified by the judgment and decree of this court, and the same is hereby attached, marked ‘Exhibit A,’ incorporated herein and made a part of this decree the same as if fully rewritten. ’ ’

It further appears from the judgment decree as follows:

“It is further ordered, adjudged and decreed that in addition to the provision made for plaintiff in the agreement of the parties that the defendant, Albert J. Nellis, pay to the plaintiff the sum of $25 for her support and maintenance each and every week hereafter, commencing June 2, 1954, and that such payments continue until the further order of the court, and the court retains jurisdiction to modify, alter or change that part of this judgment and decree by which the defendant Albert J. Nellis is required to pay for the support and maintenance of the plaintiff, Susanne Marie Nellis, in such way as the court may consider just and proper and at any time hereafter.”

A motion for a new trial filed by the defendant was overruled by the court.

This court considers as being significant and determinative of this appeal the lack of any allegation or reference in either the petition of the plaintiff, the prayer of the petition, or in the answer and cross-petition of the defendant, including the prayer of the cross-petition, relating in any way to the executed agreement between the parties appearing in the record as exhibit A, attached to and made a part of the decree or judgment now before this court for review, in which contract the parties made a division of their property and settled finally, by mutual agreement, all property and alimony rights or claims for support existing between them.

It is an elementary proposition that the issues in a cause are. made and presented for determination by the pleadings filed in the case. Since there was no allegation made or issue raised or tendered by the. petition involving the validity of the contract of settlement between the parties, the defendant was not apprised legally of the claim and the court was, therefore, without authority to modify such contract when the issue of validity had not been raised by the pleadings. It is also significant in our view that the property division and alimony settlement contract entered into between the parties after their separation and during the pendency of the action for a divorce and alimony, referred to as exhibit A and made a part of the decree, contained a provision as follows:

“9. It is further agreed and understood by and between the parties hereto that in the event a divorce is granted to either party hereto in cause No. 39760 which is now pending in the Court of Common Pleas of Lucas County, Ohio, Division of Domestic Relations, or in any action which may hereafter be commenced, that this agreement shall be submitted to the court hearing such action and that the same may be incorporated in and made a part of the decree for divorce, and that said Susanne Marie Nellis will make no claim for alimony, support, court costs or attorney fees in such action, other than as provided for in this agreement.”

The pertinent provisions of law in this state which authorized and controlled the parties in entering into a valid and binding contract respecting their property rights and claims for alimony or support are as follows :

Section 3103.05, Revised Code (Section 8002-5, General Code). ‘‘A husband or wife may enter into an engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other.”

Section 3103.06, Revised Code (Section 8002-6, General Code). ‘‘A husband and wife cannot, by any contract with each other, alter their legal relations, except ‘hat they may agree to an immediate separation and make provisions for the support of either of them and their children during the separation.”

In considering the judgment of the Court of Common Pleas in modifying the contract between the parties in the cause before us, a statement appearing in the opinion in the decision of the Supreme Court in the case of Meyer v. Meyer, 153 Ohio St., 408, 415, 416, 91 N. E. (2d), 892, is pertinent, and, in our view, controlling in a decision on this appeal, as follows:

“Section 8000 limits the power of husband and wife to make, a contract altering their legal relations. Dubois v. Coen, Exr., 100 Ohio St., 17, 125 N. E., 121. However, it recognizes their power to make a contract in certain instances. Thus, on separation, they may enter into an agreement mutually releasing their respective rights to dower and distributive shares and releasing each other from claims of care, support' or maintenance. Hoagland v. Hoagland, 113 Ohio St., 228, 148 N. E., 585. See, also, Mendelson v. Mendelson, 123 Ohio St., 11, 173 N. E., 615. It follows that a separation agreement, such as involved in the instant case, is not void by reason of the foregoing statutory provisions.
“Where a party to such an agreement elects to avoid it, on the ground of fraud or what may have the same effect (a violation of ‘the general rules which control the actions of persons occupying confidential relations with each other.’ referred to in Section 7999, General Code), such party necessarily asks for and seeks equitable relief from the provisions of the agreement. See Hoagland v. Hoagland, supra, 240. Thus, it cannot be said that the separation agreement is unenforcible until a court has determined that it is fair as between the parties. Rather, it must be said that the agreement is enforcible until a court has determined that it is not fair as between the parties. While a party will be aided in securing such a determination by the words at the end of Section 7999, General Code, such party must ask for and seek equitable relief in order to secure such a determination.”

It should be noted that Sections 7999 and 8000, General Code, were repealed by the Legislature and reenacted as Sections 8002-5 and 8002-6, respectively, in identical language, effective August 28, 1951.

Also, a further statement appearing in the opinion in the Meyer case, supra, at page 415, is pertinent and applicable, in our view, to the evidence and contract in the record before us, as follows:

“On the record in the instant case, there is no basis for considering the separation agreement void on what has sometimes been referred to as ‘fraud in the factum.’ See Picklesimer v. Baltimore & O. Rd. Co., 151 Ohio St., 1, 3, 84 N. B. (2d), 214.”

We, therefore, hold that the contract involved in the cause now before us was binding and enforcible between the parties to the action until it had been determined upon proof in support of proper allegations in a pleading that by reason of either fraud or mistake or a violation of “the general rules which control the actions of persons occupying confidential relations with each other” it was not valid and enforcible.

Since it is clear that no claim was made by the plaintiff in her petition that the contract was invalid upon any ground, the defendant was not apprised legally that such claim would be asserted and was, therefore, deprived of the opportunity for a fair trial upon that issue, which issue could be raised only by a proper pleading.

Hoagland v. Hoaglaud, 113 Ohio St., 228, 148 N. E., 585; Mendelson v. Mendelson, 123 Ohio St., 11, 173 N. E., 615; Meyer v. Meyer, supra.

There was an abundance of evidence which warranted the granting of the divorce to the plaintiff, and the judgment for a divorce will, therefore, be affirmed.

This court is not required on this appeal to, and does not, pass upon the question as to the sufficiency of the evidence to show a violation of “the general rules which control the actions of persons occupying confidential relations with each other” referred to in Section 8Ü02-5, General Code, now Section 3103.05, Revised Code.

We do find, however, for the reasons stated that the Court of Common Pleas, Division of Domestic Relations, erred in its judgment in modifying the contract involved in the cause before us and, also, in its ruling in denying defendant’s motion for a new trial. Therefore, the judgment of the Court of Common Pleas, Division of Domestic Relations, is reversed and the cause remanded to that court for further proceedings and a new trial in accord with the rules of law stated and to which reference is made in this opinion.

Judgment affirmed in part and reversed in part and cause remanded.

Fess and Conn, JJ., concur.


text:
    Lowman, Appellee, v. Lowman, Appellant.

      (No. 4834
    Decided February 21, 1955.)

      Messrs. Lane, Downing é DeMuih, for appellee.

      Messrs. Cobourn, Yager, Notnagel, Smith & Beck, for appellant.
   Fess, J.

This is an appeal on questions of law from an order of the Court of Common Pleas, Division of Domestic Relations, granting an allowance of temporary alimony in the sum of $10 per week and ordering the defendant to pay medical and hospital bills incurred by plaintiff, pendente lite.

Plaintiff filed her petition for divorce and alimony on July 23, 1954. On July 24, 1954, plaintiff filed a motion for allowance of child support, alimony and attorney fees, and on August 13, 1954, an order was entered requiring defendant to pay to plaintiff for support of their minor child the sum of $15 per week. That portion of the motion relating to alimony and attorney fees was continued. On August 11, 1954, the parties entered into a separation agreement with respect to division of property and under the terms thereof plaintiff released defendant from all obligations of future support. The parties further agreed that they would not in any manner incur or contract any debts on the credit of the other and that in the case of a hearing of the divorce action by either party. neither would ask for either temporary or permanent alimony or make any claim for any interest in the property of the other. The agreement provided further that the division of property made therein should be in full satisfaction of all claims and demands as well as all rights of dower, inheritance and distribution. It was provided further that the amount to be paid for the support of their minor child would be paid in accordance with such order as might be made by the Common Pleas Court.

At the time the separation agreement was made, plaintiff was self-employed, but thereafter she became disabled as a result of an accident and incurred substantial medical and hospital expenses. On October 8, 1954, plaintiff filed a motion for an order granting her temporary alimony and to require defendant to pay medical and hospital bills pendente lite, and to increase the allowance for child support theretofore granted. This motion came on for hearing on October 14, 1954. In accordance with the usual practice inci-r dent to hearing applications for temporary alimony, the case was heard upon statements of counsel. Defendant objected to the allowance upon the ground that it was barred under the terms of the separation agreement which was introduced as a part of the record upon such hearing. Thereafter, on November 19, 1954, the order from which the appeal is taken was entered, requiring the defendant to pay to plaintiff $10 per week as temporary alimony from October 14, 1954, until the further order of the court, and, also, directing the defendant to pay the medical and hospital bills which had accrued as of October 14, 1954.

It is well established in Ohio that an order for temporary alimony pendente lite is not an appealable final order in the absence of a showing of abuse of discretion. Defendant contends that the failure of the court to receive testimony incident to the granting or denial of the motion constitutes an abuse of discretion. As above indicated, the motion was heard upon statements of counsel in accordance with the usual practice of the court in determining preliminary matters' in divorce actions. In our opinion, when the court made the allowance of temporary alimony and ordered the defendant to pay medical and hospital bills incurred subsequent to the execution of the separation agreement in disregard of such agreement, the entry of the order affected a substantial right of the defendant in a special proceeding. The motion to dismiss the appeal will, therefore, be overruled.

At the time Meyer v. Meyer was first before this court for decision, in an unreported opinion, we were of the opinion that the burden of showing a separation agreement to be fair, reasonable and just rested upon the party seeking to enforce the contract. We cited In re Estate of Shafer, 77 Ohio App., 105, 65 N. E. (2d), 902; and Garner, Exr., v. Miller, 16 Ohio St., 527, reached the conclusion on the appeal as one on questions of law that the defendant had failed to meet such burden, and affirmed the judgment of the court below granting alimony. Upon appeal, this court was reversed (Meyer v. Meyer, 153 Ohio St., 408, 91 N. E. [2d], 892) and the cause was remanded to this court for a trial de novo upon the equitable issue involving the validity of the separation agreement. Upon trial de novo, we held that “having due regard for the confidential relationship as husband and wife that then existed between the parties, their respective states of health, ability to earn and general financial statuses * * * the agreement was not fair, just and equitable to the plaintiff, and by reason thereof it should be set aside and held for naught.” Having complied with the mandate of the Supreme Court, we remanded the cause to the Common Pleas Court for further proceedings, including the allowance of alimony. The third and fourth paragraphs of the syllabus in Meyer v. Meyer, supra, read as follows:

“3. Where a party to such an agreement elects to avoid it, on the ground of fraud (other than ‘fraud in the factum’) or for a violation of ‘the general rulés which control the actions of persons occupying confidential relations with each other,’ such party necessarily asks for and seeks equitable relief from the provisions of the agreement.
. “4. Unless such an agreement is void for ‘fraud in the factum, ’ such equitable relief must be granted before the allowance of alimony.”

Prior to the enactment of the Husband and Wife Act (1887), the Supreme Court had sustained post-nuptial separation agreements upon the principle that in the light of all the circumstances the contract was “fair, reasonable and just.” Bettle v. Wilson, 14 Ohio, 257; Thomas v. Brown, 10 Ohio St., 247; Garver, Exr., v. Miller, supra. Cf. Hoagland v. Hoagland, 113 Ohio St,, 228, 234, 148 N. E., 585.

. As pointed out in our recent decision in Nellis v. Nellis, ante, 247, under Hoagland v. Hoagland, supra; Mendelson v. Mendelson, 123 Ohio St., 11, 173 N. E., 615; and Meyer v. Meyer, supra, 415, a separation agreement is valid until such time as it may be found and determined that it violates the provisions of Section 3103.05, Revised Code, with respect to actions of persons occupying confidential relations with each other. As in the Nellis case, we, therefore, hold that the contract involved in the instant case is binding and enforcible between the parties and the court, until it has been determined upon proof in support of proper allegations that, by reason of either fraud or mistake or a violation of “the general rules which control the actions of persons occupying confidential relations with each other,” it is invalid and unenforcible.

It may be contended that the instant case is to be distinguished from the Nellis case on the ground that in this case the application is for temporary alimony prior to the approval by the court of the separation agreement. But the Supreme Court in the Meyer case makes no exception in the principle therein announced regarding the allowance of temporary alimony. Nor is there any suggestion in the opinion that the agreement is ineffective until such time as it may be approved by a court. On the contrary, the Supreme Court said: “Thus, it cannot be said that the separation agreement is unenforcible until a court has determined that it is fair as between the parties. Rather, it must be said that the agreement is en-forcible until a court has determined that it is not fair as between the parties.” Meyer v. Meyer, supra, 416.

That an agreement may have been improvidently made to the detriment of a party is unfortunate, but, unless the evidence in support of setting it aside discloses fraud in the inducement or a violation of “the general rules which control the actions of persons occupying confidential relations with each other,” it must be sustained and enforced.

We, therefore, i*each the conclusion that the order from which the appeal is taken is a final order and must be reversed and the cause remanded to the Court of Common Pleas for further proceedings, without prejudice to the rights of the plaintiff, upon appropriate proceedings, to attack the validity of the separation agreement.

Judgment reversed and cause remanded.

Conn and Deeds, JJ., concur.


author: Hornbeck, J.

text:
    Petticrew, Jr., Appellee, v. Petticrew, Sr., Appellant.
    (No. 500
    Decided November 12, 1953.)

      Messrs. Gorry, Durfey, Martin & Browne, for appellee.

      ■ Messrs. Cole & Cole and Mr. William E. Bailey, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment in favor of the plaintiff and against the defendant in the sum of $37,807.15. The action was for damages for the value of funds and property in the sum of $134,423.74, claimed to have been appropriated and converted by defendant from the plaintiff.

Five errors are assigned, which we will consider in the order in which they are set up in the brief of defendant.

“1. Irregularity in the proceedings during said trial of the prevailing party plaintiff, through his counsel, in openly accusing defendant’s witness Stinson, in open court and in the presence of the jury, of having committed perjury in a certain deposition theretofore taken by plaintiff’s counsel, and referred to as ‘deposition of Mary E. Stinson.’ ”

Mary Stinson was called as a witness for the defendant. During her interrogation on cross-examination this question was put by counsel: “On July 2, 1951, did you know you were married to Stanley S. Petticrew, Sr., defendant in this case?” Counsel for defendant objected to this question, whereupon, counsel for plaintiff said: “We have a case of perjury here, your Honor.” Counsel for defendant then requested that the jury be excused and that he be heard on a question of law, to which the court answered: “No. 1 will instruct the jury to disregard the comment of counsel.” Thereupon, counsel for defendant moved the court that a juror be withdrawn and a mistrial be declared by reason of the remarks of the plaintiff. This motion was overruled, and exceptions were noted by counsel for the defendant. The court then instructed the jury to totally disregard the remarks of counsel, particularly the statement to the effect that “we have a case of perjury here.”

It is the contention of defendant that the comment of counsel was prejudicial to the cause of defendant and that, notwithstanding the action of the court in instructing the jury to totally disregard the remarks, they caused the jury to be prejudiced against the defendant.

Many cases are cited where remarks of counsel during trial have been held to be prejudicial, in some instances even though the court admonished the jury to disregard them.

The effect of such remarks and whether they are prejudicial must be determined upon the development in each case wherein they occur. It will serve no useful purpose to cite the cases pro and con because they have weight as controlling authority only when considered with the facts out of which they grew.

Suffice to say, there are several reasons why the remarks were not prejudicial. If they remained in the minds of the jury notwithstanding the admonition of the court, it must have been appreciated that they were but the conclusion of counsel with which the jury might or might not agree. A similar observation was made earlier in the examination of the witness to which no objection was made. Although, technically, the witness may not have committed perjury in her deposition, it was permissible for the jury to believe that she had falsified in her statement. It is indeed doubtful that she would fail to recall whether she was married. The witness was also called by the plaintiff and from her was developed testimony which the jury may have considered as probative of some elements of plaintiff’s case. If the remarks of counsel for the plaintiff stultified the witness it is only reasonable to conclude that they may have harmed his cause as much as that of the defendant. Finally, we have no reason to doubt that the jury accepted the instructions of the court as given and disregarded the statement of counsel. The conduct to which objection was taken consisted only of a single instance and did not indicate any course of action intended to prejudice the jury. We can not find that it had such effect.

“2. Error of the court in overruling this defendant’s motion to withdraw a juror and declare a mistrial in the action on account of the irregularity in the proceedings referred to in the first assignment of error. ’ ’

We have discussed this assignment sufficiently under the first assignment and find that it is not well taken.

The third assignment of error is “error of law occurring at the trial, and then and there excepted to by the defendant, in the following particulars:

“ (a) In the admission by the court in evidence and factual submission to the jury for consideration of plaintiff’s exhibit BB, being a written report and general summary of conclusions reached by plaintiff’s certified public accountant Peery, who had been permitted by defendant’s counsel to examine certain of defendant’s books and records for a limited purpose only.

“(b) Errors of law in the general charge of the court as given to the jury.”

Dale F. Peery, a certified public accountant, was called as a witness for the plaintiff. He had made a full audit of the transactions evidenced by plaintiff’s exhibits Q, R and U, and of certain income tax returns, and from these set up a summary of amounts owing plaintiff, amounts paid to him, and the balance due him.

The defendant had acted for the plaintiff under two powers of attorney. One was executed on January 28, 1943, just before the plaintiff had entered the armed service, and was later revoked. The second power of attorney was executed on June 22, 1948, and was revoked on October 6, 1950. The effect generally of these powers was to authorize the defendant to act for and on behalf of the plaintiff in the disposition and investment of capital and income which might accrue to him during his absence in the service and, after he had returned, during the period that he was working with and for his father, the defendant. There were income tax returns reflecting the income of plaintiff for the years 1944 to 1948, inclusive, plaintiff’s exhibits J to N, inclusive. The plaintiff was a partner with Mary Stinson in a business venture known as Springfield Rental Agency which was carried on from January 1943 to April 1949. The plaintiff shared equally with his partner in the net profits of this business, and it was profitable. Under the powers of attorney, plaintiff’s share was paid to the defendant. Defendant set up what was known as a drawing account for the plaintiff and there was also an automobile account of the company with the plaintiff. Exhibit Q-l to 10, was a copy of the salary account of plaintiff with the Springfield Rental Agency. Exhibit R-l to 7 was a copy of plaintiff’s drawing account and exhibit U was the automobile account of plaintiff with the company. These three exhibits carried some 400 or more items and it was the summary of these accounts and items and statements in the income tax returns that the witness Peery prepared and which was admitted and to which defendant objected and which .is made the subject of this assignment of error.

We understand the contention of defendant to be that counsel for plaintiff breached an agreement set forth in a letter from counsel for plaintiff to counsel for defendant under date of July 3, 1951, a part of which is as follows:

“It is understood that we may, at our own expense, employ an accountant to examine the original records in comparison with the exhibits ‘Q,’ ‘R,’ and ‘U’ to determine whether the latter correctly reflect the original book accounts, with the understanding that if any difference of [sic] discrepancy appears, the accountant is authorized to make the appropriate insertions or additions on exhibits ‘Q,’ ‘R,’ and ‘U.’ ”

The import of this letter was to confirm a prior understanding between counsel for the parties that an examination would be made by an accountant to be selected by the plaintiff to determine whether the copies were identical with the original records. The only modification that was made was that defendant insisted that an accountant be selected who was mutually agreeable to the parties.

We see nothing in this letter which would preclude the plaintiff from making any proper use of the copies in the trial of his case. Manifestly, he desired them in the preparation for trial and to secure any information therefrom which would be to his advantage. No commitment was made to the contrary.

Defendant argues that the summary and report of the accountant was not admissible because the jury had the evidence before it upon which it could make any calculations and conclusions essential to its verdict and that to permit the expert to state his conclusions in written form and send it to the jury merely accentuated his testimony; that the report is not admissible under favor of Section 12102-17 et seq., General Code; that it is not a composite report; and that such report must embody the conclusions of experts only. Plaintiff insists that the report was admissible both under the common-law rule and by statute under Section 12102-17 et seg., General Code.

We are not completely in accord with the claim of either of counsel. The rule controlling is variously stated. In 32 Corpus Juris Secundtun, 714, Section 789, it is stated:

“The result of the examination of voluminous writings and records may be admitted in evidence, if the books, etc., are properly in evidence or their absence satisfactorily explained.”

In an annotation to Hooven v. First National Bank in Ardmore (134 Okla., 217, 273 P., 257), in 66 A. L. R., 1203, at 1206, which is limited to cases in which the documents examined were not put in evidence, it is said:

“It has been generally held that it is permissible for a witness to give a summary based on an inspection of a number of documents where the documents are so numerous and intricate as to make an examination of them in court impractical.”

This type of evidence is treated in the cases and texts as secondary. The objection to it is that it offends against the hearsay, and the best evidence rules in that the persons who helped to prepare the documents are not in court and may not be examined, and the documents, the best evidence, are not in court. Courts have held that such evidence is not a violation of the parol evidence rule but a relaxation thereof, demanded by the exigencies of the case. See annotation 66 A. L. R., 1209. To obviate the latter objection, courts, so far as possible, require as a prerequisite to the admission of the report either that the documents be in court or made available to inspection. This safeguard is accomplished in our statute which, in the first instance, makes the report admissible but in a later section (Section 12102-19, -General Code), re¿ quires the party intending to use it to give notice of such intention to the opposite party with a copy of the report and a reasonable opportunity to inspect and copy any records or other documents in the offering party’s possession or control on which the report or finding is based, and, also, the names of all persons furnishing facts upon which the report or finding was based. This notice was given by plaintiff and as a precautionary measure, no doubt, was justified* because he did not know what the attitude of defendant would be at the trial toward the admissibility of exhibits Q, R, and U.

When the exhibits were offered in evidence there was no objection to the reception of any of them. The copies had been furnished defendant or were made with his knowledge of their contents. The copies were to all intents and purposes as valid as the original records. Thus, there was taken from the evidence any proper objection on the grounds ordinarily urged against its reception. There was no necessity, as the evidence developed, to invoke the provisions of the statutes (Section 12102-17 to Section 12102-21, General Code).

There, then, is presented the simple question of whether the report of the accountant, an expert, was of such a nature as to be of assistance to the jury in reaching a proper verdict.' The exhibits from which the'summary was made were somewhat voluminous, consisting of more than 400 items, made up of three different' accounts, 12 income tax returns, all of some difficulty of interpretation. In this situation, the admissibility rested largely in the discretion of the trial court, and we do not find the court’s discretion to have been abused. The computations in- the analysis were made from the exhibits with proper references thereto which enabled the jury to intelligently refer the summary to the itemized entries. The jury thus was privileged to differ from the summary if not supported by the exhibits. Defendant did not cross-examine the witness. We agree with counsel for the defendant that, if the jury was in as good position to make determination of the import and effect of the exhibits as the accountant, then it was error to admit his report. Annotation 52 A. L. R., 1268. However, we can not so find. No prejudicial error was. committed in the admission of plaintiff’s exhibit BB.

Defendant urges that the trial judge erred in the general charge wherein he permitted the jury to construe defendant’s exhibit 2. This exhibit was a paper writing which defendant claimed was a contract between the parties providing, in substance, that if plaintiff left the employ and association with his father, the defendant, he, the plaintiff, would thereupon relinquish all of his right and interest in all property or assets included in the subject matter of the agreement. Defendant insists that this contract was not ambiguous and citfes several cases to the effect that in this situation it is the function of the judge and not the jury to construe the contract. Of course, this is the law. However, it is conceded that the trial judge properly charged the jury that it should first determine whether there was a valid agreement between the parties. This was an issue. It may have been resolved in favor of the plaintiff. The verdict is general. There were no interrogatories submitted. In this situation the two-issue rule applies and we need not test the charge as against the error assigned. Sites v. Haverstick, 23 Ohio St., 626; Beecher v. Dunlap, 52 Ohio St., 64, 38 N. E., 795; State, ex rel. Lattanner, v. Hills, 94 Ohio St., 171, 113 N. E., 1045, L. R. A. 1917B, 684.

The fifth assignment is that the verdict of the jury is too large and not justified by any of the evidence submitted to it, and the sixth, is that the verdict is not sustained by sufficient evidence and is contrary to law. Without comment, we hold against the contention of defendant on both of these assignments.

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Per Curiam.

text:
    Tate, Appellee, v. Michael et al., Appellants.
    (No. 7958
    Decided September 27, 1954.)

      Mr. Harvey B. Woods, for appellee.

      Messrs. Metzger & Davis, for appellants.
   Per Curiam.

This cause comes before the court upon the appellee’s motion to dismiss the appeal and upon appellants’ motion to suspend the temporary restraining order from the granting of which and from the order of the court overruling the motion to vacate it, this appeal was taken.

An examination of the petition in this case discloses that the ultimate relief sought is an injunction, or restraining order, against a continuing trespass upon real estate and, as an incident thereto, damages for the trespass already committed.

It is apparent that this temporary restraining order restrains the defendants temporarily from doing the very things that the plaintiff seeks to have them enjoined from doing, by the final decree in this case. It is, therefore, not a final order and nó appeal lies therefrom. 2 Ohio Jurisprudence (2d), 628, Section 53.

The motion to dismiss is, therefore, sustained.

Under these circumstances, the court has no jurisdiction to pass upon the motion to suspend the temporary restraining order. Its disposition is included in the dismissal of the appeal.

Appeal dismissed.'

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