author: Stevens, J. Washburn, J.,

text:
    Wheatley et al., Appellants, v. The A. I. Root Co. et al., Appellees.
    (No. 191
    Decided July 2, 1945.)

      Mr. Silas J. Blair and Mr. Wilbert J. O’Neill, for appellants.

      Mr. John A. Weber and Mr. Harold L. Williams, for appellees.
   Stevens, J.

The defendant The A. I. Root Company was incorporated in 1894 under the general corporation laws of the state of Ohio.

Plaintiffs are the owners of 35 shares of cumulative 5 per cent preferred stock, the certificate for 25 shares thereof having been issued in 1916, and for 10 shares on August 29, 1933.

Upon the preferred shares outstanding on December 17, 1943, there were accumulated undeclared dividends amounting to $50 a share.

On December 17, 1943, a plan was presented by the defendant corporation to its stockholders to amend its articles of incorporation so as to (1) cancel the rights of owners of 5 per cent cumulative preferred stock to receive the accrued and unpaid dividends on their stock, amounting to $50 a share, before any dividends are paid on common stock; (2) compel the owners of preferred stock to accept for and in lieu of -each share thereof, and the accrued but undeclared dividends thereon, a share of nonvoting preferred stock without cumulative dividend rights, one share of class A common stock, redeemable at $40 a share, and $10 in cash; (3) exchange 4,250 shares of outstanding $100 par value common stock for 8,500 shares of class B common stock without par value, on the basis of 2 new shares for 1 old share; (4) create a sinking fund for the redemption of the class A common and new preferred shares; (5) provide that the articles of in-^ corporation may be amended by majority vote of the shares entitled to vote; (6) reduce the stated capital of the corporation from $700,000 to $555,000, the $145,-000 reduction thereby accomplished to be transferred to surplus.

The articles of incorporation were amended in accordance with the foregoing plan by vote of approximately 79 per cent of the old preferred shares, and 89 per cent of the old common shares; said amendments being filed with the Secretary of State of Ohio on December 31, 1943.

These plaintiffs voted their stock against said plan of recapitalization, and have refused to accept the new stock and cash provided for by this plan, but did not make claim under Section 8623-72, General Code.

On December 31, 1943, these plaintiffs filed their action against defendants,, seeking to enjoin the consummation of said plan of recapitalization, on the ground that'the same was illegal, and infringed certain constitutional rights of plaintiffs and others similarly situated.

Relief having been denied plaintiffs by the Court of Common Pleas, appeal on questions of law and fact has been perfected to this court.

The first question to be determined is whether the plaintiffs are entitled to speak for those of the class occupied by plaintiffs; in short, may plaintiffs maintain this action as a class suit, or may they speak only for themselves ?

It must be conceded that the factual situation attending the acquisition of preferred stock in the defendant company differs in each case as to time of acquiring the stock and other elements, and that claims asserted in behalf of plaintiffs might not pertain with reference to the other dissenting stockholders, or might be subject to different defenses.

It seems to us that this is not such a case as warrants the conclusion that it may be maintained as a class suit, but that, on the contrary, plaintiffs are entitled to assert rights on behalf of themselves alone.

In this connection, attention is directed to a very scholarly opinion by Judge Prank S. Day, sitting as a judge of the Court of Common Pleas in Cuyahoga county, in the case of Kuligowski v. Hart, 23 O. O., 213, 9 Ohio Supp., 89. Therein the essentials of the doctrine of virtual representation are considered and discussed, and a host of pertinent authorities cited. The conclusion there reached accords with our conclusion as to the right of these plaintiffs to represent others alleged to be similarly situated.

In this action the court has been favored with exhaustive and comprehensive briefs by counsel for the respective parties, and consideration thereof and of the transcript reduces the claims of plaintiffs to two: vis., (1) that the proposed amendment of the articles of incorporation of defendant company-is illegal because it is violative of the plaintiffs’ contracts'of stock ownership, for' the reason that the statutes under which said plan is attempted are unconstitutional, if construed to operate retroactively; and (2) that the plan of recapitalization is illegal because it is so unfair to the preferred stockholders as to amount to' the perpetration of a fraud upon them, if permitted to stand.

Plaintiffs state their contentions concerning the first proposition as follows:

“As a basis for this plan of recapitalization, the corporation and its board of directors are relying on the provisions of the new Ohio corporation code. Sections 8623-14 and 8623-15 were enacted in 1927 and subsequently amended. It was not until July 24, 1939, that 8623-14 provided for the elimination of accrued dividends.

“We take the firm position that these statutes, in so far as they -authorize changes of a substantially prejudicial nature in the stockholders’ rights, can only operate with respect to shareholders of corporation formed after the enactments or to shareholders whose shares ivere subscribed for after the enactments.- We think the statutes should be so construed, that a different construction would rend&r them unconstitutional in the following respects: It would violate (1) Article I, Section 10, of the Constitution of the United States, which provides that ‘no state * * * shall pass any law impairing- the obligations of contracts’; (2) the Fourteenth Amendment of the U. S. Constitution — the due process clause; (3) Article I, Section 19, of the Ohio Constitution — the inviolability of private property clause; and (4) Article II, Section 28, of the Ohio Constitution, which provides that ‘The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligations of contracts * * ” (Italics ours.)

Section 8623-14, General Code, effective July 24, 1939, provides: *

“A corporation for profit organized under the provisions of this act or of any previous corporation act of this state may alter or add to its articles or change issued shares in any respect by the adoption of an amendment in the manner hereinafter provided in this act * * *.

“In particular, without prejudice to the generality of such power of amendment, a corporation by the adoption of an amendment may: * * *

“ (i) change any or all of the express terms and provisions or designations of issued or unissued shares of any class or series; which change, if desired, may include the discharge, adjustment or elimination of rights to accrued undeclared cumulative dividends on any such class * *

If plaintiffs’ contention that Section 8623-14 (i), General Code, can apply only to corporations formed after July 24, 1939, or to stockholders whose shares were subscribed for after said date, be correct, then the amendment to the articles of defendant company could not operate to deprive plaintiffs of the undeclared cumulative preferred dividends which had accrued upon the preferred stock held by plaintiffs.

It is, of course, the duty of courts, iu construing statutes, to so construe them as to render them constitutional, if that can reasonably be done; and this statute would be rendered immune to valid constitutional challenge if construed to mean that a corporation, by amendment of its articles of incorporation, cannot discharge its responsibility to pay to a dissenting preferred shareholder the accumulated undeclared preferred dividends which accrued prior to the enactment of the statute, but may discharge accumulated preferred undeclared dividends which accrued subsequent to the passage of the section.

We are not unmindful of the limitation imposed by Section 8623-72, General Code, which gives to the dissenting stockholder a right to receive the fair cash value of his shares as of the day before the vote was taken amending the articles of incorporation, if within 20 days thereafter he objects in writing to the action so taken, and demands the fair cash value of his shares.

This remedy has, however, been held to be nonexclusive where fraud or illegality are present. Johnson v. Lamprecht, II, 133 Ohio St., 567, 15 N. E. (2d), 127, syllabus 3.

Under our construction of this statute (Section 8623-14 (i) ), it matters- not that plaintiffs did not avail themselves of the remedy offered by Section 8623-72, General Code, in so far as the defendant company attempted to discharge undeclared cumulative preferred dividends upon stock owned by dissenting stockholders, which dividends accrued prior to the enactment of said statute, because such attempt was illegal as impairing the obligation of plaintiffs’ contracts of stock ownership. The remedy afforded by Section 8623-72, General Code, was therefore not exclusive as to such unpaid dividends.

We hold that, inasmuch as amendments to general corporation laws become a part of the charter of a corporation as of the day of their promulgation, the provisions of Section 8623-14 (i), General Code, became a part of the contract governing plaintiffs’ stock ownership as of the day it became effective.

When plaintiffs continued to hold their preferred stock in defendant company subsequent to July 24, 1939, they held it subject to the right of the corporation, by appropriate amendment of its articles of incorporation in a reorganization proceeding, to discharge or'eliminate preferred dividends accruing after that date.

In short, it is our conclusion that this section of the corporation code cannot validly have any retrospective or retroactive effect, but that it may properly and validly be applied prospectively, and this irrespective of when the corporation was organized or when the ■ stock in question was issued or acquired by the holders ■thereof.

It follows, therefore, that, as to the dividends which aecruéd upon plaintiffs’ stock up to July 24, Í939, plaintiffs are entitled to have those dividends • paid before payment of dividends may be made to other stockholders holding .stock issued under the reorganization. As to dividends occuring thereafter, plaintiffs are not so entitled.

Plaintiffs are given 20 days after the filing of the journal entry herein to avail themselves of the remedy afforded by Section 8623-72, General Code; that is to say, to have the fair cash value of their stock determined as of the day before the articles were amended, eliminating from such determination the dividends which accrued prior to July 24, 1939.

If plaintiffs elect to take the amount thus determined, they will surrender their stock upon payment of said sum, and the accrued preferred dividends up to July 24, 1939.

If, however, plaintiffs elect to exchange their stoek under the recapitalization plan, they shall receive (1) the cumulative dividends which accrued thereon up to July 24, 1939, in cash, and (2) new preferred shares for the-old, share for share; (3) the balance of the dividends accruing after July 24, 1939, up to the time of the reorganization, shall furnish the basis for a pro rata settlement with plaintiffs in common stock and •cash, in the proportion that the balance remaining unpaid upon said cumulative dividends per share bears to $50, the entire amount of cumulative dividends per share.

Our disposition of the first question considered, in ■our judgment makes unnecessary a discussion of the second question posed by plaintiffs.

However, a saving of plaintiffs’ rights to the dividends which cumulated up to July 24,1939, eliminates, as to them, any question of unfairness.

We are of the opinion that no fraud has been here ■shown.

A decree in accordance with this opinion may be prepared.

Decree accordingly.

Doyle, J., concurs.

Washburn, J.,

concurring in part and dissenting in part. I agree that plaintiffs are entitled to an injunction preventing the payment of dividends to any stockholders until plaintiffs have been paid the dividends which accrued upon their stock up to July 24, 1939, but I am of the opinion that, the reorganization being in all other respects legal and in accordance with the Constitution and laws of Ohio and free from fraud or breach of fiduciary duty on the part of the directors of the company, who acted in good faith to strengthen and promote the stability and business of the company, and the plaintiffs having- failed to demand the value of their stock in accordance with the provisions of Section 8623-72, General Code, the plaintiffs are not entitled to any other or further relief in this action.

The preserving- of plaintiffs’ rights to the dividends which cumulated up to July 24, 1939, eliminates, as to them, any question of unfairness or illegality, and they would receive the new preferred stock and class A common stock and further cash for the unpaid preferred dividends accruing after July 24, 1939, in the same proportion as the amount of said unpaid dividends per share bears to $50, the total of the accumulated dividends per share.


source: Caselaw Access Project

author: Hobnbeck, P. J.

license: Public Domain

text:
    Lynam, Appellant, v. Schueler, Appellee.
    (No. 1891
    Decided May 22, 1946.)

      Mr. T. L. Barger, for appellant.

      Mr. Floyd F. Koogler, for appellee.
   Hobnbeck, P. J.

This is an appeal from a judgment of the Common Pleas Court affirming a judgment of the Municipal Court of Dayton, dismissing plaintiff’s action in forcible entry and detainer of certain real estate in the city of Dayton. The first cause of action of the statement of claim is in the usual form of forcible entry and detainer cases. We give no attention to the second cause of action which is for rent claimed to be due.

There were an answer and an amended answer filed and a reply to the original answer but no reply to the amended answer. After a general denial, the amended answer averred that on a date prior to the action in forcible entry and detainer the defendant had filed in the Common Pleas Court of Montgomery county, Ohio, an action against David Lynam, to which he had filed an answer; that the cause had been partially heard and is now pending in that court; and “that the issue raised by the pleadings in said pending case in the Court of Common Pleas is whether or hot the plaintiff, therein, defendant herein, Matilda Schueler, is the owner of the premises therein described, and being the same premises as described in the statement of claim herein, by virtue of her being the sole devisee and beneficiary under the last will and testament of Elnora Lynam, deceased, or whether David Lynam, defendant therein, plaintiff herein, is the owner of said premises, by virtue of an instrument purporting to be a general warranty deed, which deed is recorded in deed book 1051, page 307, of the deed records of Montgomery county, Ohio. That the relief sought by the defendant herein, plaintiff therein, is to have said deed cancelled; that she be declared the owner of said real estate; that her title be quieted and for other equitable relief.”

Upon trial had after certain formal proof was offered by the plaintiff, he also introduced a deed from Elnora Lynam to himself and proof of its recording. From the plaintiff’s evidence it appeared also that the defendant was occupying the premises in question on the date^ of the death of her niece and continued to so occupy thereafter. Upon cross-examination of the plaintiff it was developed that the suit set out in the amended answer of the defendant was pending in the Common Pleas Court and that it had been partially heard. Inquiries made as to the terms of the will of Elnora Lynam, deceased, developed little information on the subject. Upon direct inquiry it was admitted by the plaintiff that a lawsuit was pending between him and the defendant wherein both claimed ownership to the piece of property involved in the forcible entry and detainer action. Thereupon, counsel for the defendant moved for a dismissal of plaintiff’s cause of action because title was involved and the parties should be relegated for relief to a court that had jurisdiction of that subject. The motion was sustained and the finding entry recites a general finding in favor of the defendant and that “the court has no jurisdiction in this cause, and that the statement of claim of the plaintiff should be dismissed.” Judgment was entered upon the finding after the overruling of a motion for new trial. That judgment is the subject of the appeal, to which ten assignments of error are directed.

We will not recite seriatim the errors assigned but will discuss in a more general form the questions presented. The brief of plaintiff, after setting forth his claims in a general way, cites all his cases under the general heading of “the law” which is a compendium of much of the adjudications in forcible entry and detainer cases.

It is urged that it was irregular and improper to permit the defendant, prior to the opening of her case, to offer evidence of her affirmative defense by cross-examination of the plaintiff’s witnesses. Salko, Admx., v. Metropolitan Life Ins. Co., 52 Ohio App., 367, 3 N. E. (2d), 664, is cited. It is claimed also that “the only pleading contemplated in a forcible entry and detainer suit is a complaint,” and Schmidt v. Schmidt, 1 N. P. (N. S.), 177, 13 O. D. (N. P.), 663, is cited. We have no differences with the authorities cited but are satisfied from the record that the question upon which the trial judge predicated his finding and judgment is clearly projected-from the record and in the bringing of this matter to the attention of the trial judge no prejudicial error occurred.

As claimed by plaintiff, it is not necessary that any pleading other than the statement of claim or complaint be filed in a forcible entry and detainer suit. However, there can be no serious objection to an answer thereto as was filed in this cause. If the rule as to code pleading is to be given application, then the failure of the plaintiff to reply is tantamount to an admission of any factual matter set out and well pleaded in the answer. The subject matter of the answer in the instant case is also substantially elicited from the testimony. All in all, it is obvious that had the court pursued the strict rule as to the admissibility of the subject matter of the answer of the defendant and required that it be withheld until the defendant had offered her case, the result would have been no different. It is apparent that the answer sets out the factual situation as to the action pending in the Common Pleas Court between the parties. Nor can it make any substantial difference whether the code rule as to pleading be given application because, if it be held that the failure to reply is an admission of the averments of the answer, the admission goes only to the extent of conceding that suit is pending between the parties in the Common Pleas Court, the subject matter of which is as alleged. No prejudicial error intervened against the rights of plaintiff in the action of the trial judge upon the issue drawn between'the parties in the cause in the Municipal Court. Section 11361, General Code.

The principal and controlling question here is whether the trial judge was correct in the conclusion that the Municipal Court was without jurisdiction to decide the forcible entry and detainer action because it involved and required a determination of the quesT tion of the title to the land which was the subject of the action.

The Municipal Court is a creature of statute and its jurisdiction is statutory only. State, ex rel. Talaba, v. Moreland, Judge, 132 Ohio St., 71, 5 N. E. (2d), 159.

We have held in Dayton Morris Plan Bank v. Graham, 17 Ohio App., 310, 191 N. E., 817:

“Dayton Municipal Court is to be controlled according to laws conferring jurisdiction on Common Pleas Courts, except where such laws are inconsistent or plainly inapplicable, in which case laws conferring jurisdiction on justices of peace apply.” See, also, Harbine, Jr., v. Davis, 41 Ohio Law Abs., 65, 57 N. E. (2d), 121.

Forcible- entry and detainer is an action of which the Common Pleas Court does not have jurisdiction. Harbine, Jr., v. Davis, supra. Therefore, the Municipal Court of Dayton has such jurisdiction in forcible entry and detainer cases as is conferred upon a justice of the peace. The chapter in which the general jurisdiction of a justice of the peace is defined is under Part Third, Title II of the General Code, as is the chapter on forcible entry and detainer. Section 10223, General Code, defines the general jurisdiction of the justice of the peace, and Section 10224, General Code, defines the particular jurisdiction of the justice of the peace under which, in-paragraph 5, is this language: “To. try the action of forcible entry and detention * *

Section 10232, General Code, relates to eases in which justices of the peace have no jurisdiction, under which is paragraph six, which reads:

“In actions in which the title to real estate is sought to be recovered, or may be drawn in question, except in the cases provided for in' the next preceding sec- • tion. ’ ’

The cases provided for in the next preceding section do not affect the instant cause.

It is urged by plaintiff that the question of title is not involved in the action “because the legal title and deed, regular in every way, shows that the plaintiff is the owner; the suit to cancel or set aside the deed is conclusive proof that the title is in the plaintiff, otherwise the suit would not have been filed.” There may be some technical support for this claim because it is based upon the.theory that before the title of the defendant may be asserted it would be essential that the deed of the plaintiff to the premises be cancelled. Such a restricted view of the question of title is not, in our judgment, required by the state of the record. If it eventually be determined that the will is effective to cafry the ownership of the premises to the defendant, then, whether or not the deed is cancelled, her title is superior to that of the plaintiff. The converse of the proposition, of course, is that if the will did not operate upon the property deeded, then the plaintiff’s title is superior. This case clearly presents a situation wherein the title -to the real estate involved in the forcible entry and detainer action is drawn into question, and if Section Í0232, General Code, has application to the jurisdiction of the Municipal Court, the dismissal was properly entered.

We are of the opinion that Sections 10224, 10232, 10447 and 10449 are in pari materia and must be read together, and that the limitation on the jurisdiction of the justice of the peace set out in paragraph six of Section 10232, General Code, is effective in forcible entry and detainer actions wherein title to real estate is drawn into question. Manifestly, this has application only where there is a distinct bona fide issue on the question of title and does not have the effect of precluding a plaintiff from showing such title as is essential to his right of possession where such title is not in dispute. Brown, Gdn., v. Burdick, 25 Ohio St., 260.

There are many cases in Ohio directly or indirectly affecting our question. Page’s Ohio Digest cites Aubrey v. Almy, 4 Ohio St., 524, as decisive of the proposition that “a justice'mf the peace has no jurisdiction of an action in forcible entry and detainer in which it is necessary to draw the title to such realty into question in order to determine whether the tenant is in possession unlawfully.”

Unfortunately, that case is not so decisive of the question as the above quotation would indicate. The court does not pass on the question in the syllabus and the only observation is made in the opinion of Chief Justice Thurman at page 525 in this language:

“The facts in proof, it is said, presented a controversy in respect to the title to the premises, a question that could not be tried in an action of forcible detainer. If this position is correct, both in fact and law, there was a valid defense to the action, but it is not perceived that there was a want of jurisdiction.”

This latter observation however was made with respect to the jurisdiction of the Common Pleas Court. The Aubrey case is helpful only as a statement of opinion of the eminent Chief Justice.

However, Bridwell v. Barcroft, Beaver & Co. (a nisi prius case), 4 W. L. M., 617, 2 Dec. Rep., 697, holds expressly in the third paragraph of the syllabus:

“A justice of the peace has no jurisdiction, under the first section of the statute of forcible entry and detainer, of a case which involves the title to real estate.”

The court in that case cited Bridgmans v. Wells, 13 Ohio, 43, and Nichol v. Patterson, 4 Ohio, 200, the first of which is in point. The Bridwell case is well considered and therein are cited and discussed Massachusetts cases from which state we derived our forcible entry and detainer statute, and the court concluded that, independently of the statute, the question of title cannot be tried by a justice of the peace in forcible entry and detainer cases.

We cite a number of other cases which we have examined and which reflect some light on the question either directly or collaterally. Schmidt v. Schmidt, supra; Dennis v. Hanson, 12 C. C., 445, 5 C. D., 465; Gladwell v. Hume, 18 C. C., 845, 9 C. D., 767; Cowen v. McGoron, 12 C. C. (N. S.), 431, 21 C. D., 590.

We have found one case, Martin v. Bircher, 46 Ohio App., 239, 188 N. E., 365, which expressly holds that the Municipal Court of Canton, having the same jurisdiction as is granted to justices of the peace, has jurisdiction of forcible entry and detainer actions notwithstanding they involve the question of title to real estate. That decision arrests our attention. The rationale of the decision is that the limitation of paragraph six of Section 10232, General Code, does not have application to the jurisdiction pf the justice of the peace in forcible entry and detainer cases because of the express jurisdiction conferred upon the justice of the peace in such cases, under Section 10447, General Code.

We prefer to read all of the sections, relative to the jurisdiction of the justice of the peace, in parimateria.

The jurisdiction of the justice in forcible entry and detainer has been granted as long as has the general. jurisdiction. As early as 1831, in Swan’s Acts of a General Nature (1841), 502, there is carried an act off March 14, 1831, effective June 1, 1831, wherein the' jurisdiction of the justice in civil cases is defined and in Section 108 of this act, at page 525, it is provided:

“The jurisdiction of justices of the peace .shall extend to actions of trespass on real estate, * * * and no claim of title to such real estate, set up by the defendant, shall take away or affect the jurisdiction hereby given.”

Section 109, at page 525, provides the actions to which the jurisdiction of the justice of the peace shall not extend, among which are:

“Actions in which the title to land and tenements may be drawn in question, except actions of trespass-on real estate which are provided for in this act.”

In the same volume, at page 417, is carried an act of February 25, 1831, effective on the same date, namely, June 1, 1831, as the act of March 14, 1831, from which we. have heretofore quoted. This latter-act sets up jurisdiction and procedure in forcible entry and detainer. It is not probable that two acts enacted' at substantially the same time and effective on the same day defining jurisdiction of the justice of the peace-should not be intended to be read together and both given effect. Obviously, the legislators knew when they enacted Section 109 of the act of March 14,1831,, the jurisdiction which had been vested in the justice-of the peace in forcible entry and detainer by the act of February' 25, 1831, and intended that Section 109' should limit the jurisdiction of the justice of the peace* in forcible detainer actions when title to land and: tenements was drawn into question.

Later, the act of March 14, 1853 (51 Ohio Laws, 179), was enacted, effective July 1, 1853. This act is a complete code of the jurisdiction, duties and powers of the justice of the peace, consisting of many sections and repealing former acts relating to the same subject matter. This act (Art. I, Sec. 2, par. 5) grants jurisdiction to the justice to try the action for entry and detention or the detention only, of real property. Other sections of the same act vest the jurisdiction in actions relating to trespass to real estate and also remove the jurisdiction in all cases where the title to real estate is brought into the record or is drawn into question. It seems clear to us that this act enacted at the same time and effective the same date should in all of its language be given force and effect. If it does •not have application in forcible entry and detainer cases, it is doubtful'if it has any application of substance whatever to actions which may be tried and determined by the justice.

The question presented is interesting and as we have heretofore stated not free from difficulty.

The law as announced in the third and fourth propositions of the syllabus in Martin v. Bircher and as pronounced in the opinion of Judge Lemert is broader than the narrow issue presented required. As a matter of fact the issue may have been decided upon the strength of the adjudication of this court in State, ex rel. Kennelly, v. Miller, 43 Ohio App., 173, 183 N. E. 41. However, there is no doubt that upon the broad view which the court took of the jurisdiction of -the justice of the peace in forcible detainer cases it reached the only possible conclusion.

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Hornbeck, P. J.

text:
    Warner et al., Appellees, v. Matthews, Appellant.
    (No. 3902
    Decided June 21, 1946.)

      Mr. E. W. Dillon, for appellees.

      Mr. L. P. Henderson, for appellant.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming a judgment of the Municipal Court of Columbus in behalf of plaintiffs, appellees herein, in the sum of $960. The action was instituted by the filing of a petition to which a demurrer was filed and sustained and, thereafter, an amended, petition was filed to which a general demurrer was interposed and overruled. The defendant then answered and the cause was tried by a judge without a jury.

In this court the errors assigned are three:

1. The Court of Common Pleas erred in sustaining Ihe judgment of the Municipal Court.

2. The Court of Common Pleas erred in holding that 'the amended petition stated a cause of action against the defendant, appellant, a cotenant. .

3. Other errors apparent upon the face of the record.

No bill of exceptions was settled and allowed and we, therefore, may consider no question which would involve the evidence or the weight thereof. Nor may we consider any legal question presented on the subject matter of the original petition. Ironton v. Wiehle, 78 Ohio St., 41, 84 N. E., 425. The amended petition being complete in form and subject matter, the rights of the parties on this record are to be determined upon its averments and subsequent proceedings relative thereto.

The second assignment of error requires the determination whether the demurrer to the amended petition was properly overruled. The demurrer -raises the question of the jurisdiction of the Municipal Court to hear and determine the questions raised by the amended petition. There is a question whether the amended petition suggests such a relation between the plaintiffs and the defendant, G-rady Matthews, as co-tenants of the property in question as to make the action upon which recovery is sought necessarily one in equity.

The cases of Conard v. Conard, 38 Ohio St., 467, and West v. Weyer, 46 Ohio St., 66, 18 N. E., 537, lend considerable support to the claim that the right of action accorded one tenant in common against his cotenant by Section 12046, General Code, is an equitable right of action. The per curiam opinion in Conard v. Con ard, supra, states that the action granted by the statute is “a civil action in which neither party has a right to demand a trial by a jury,” and that it may be appealed. That case was decided when an appeal contemplated a review of a chancery case only. The court, however, then continues in language that discloses its observations were being made particularly with respect to the issues in the case then under consideration which it held to be not an action for the recovery of money merely, but an action according to the principles of equity. In Black, Recr., v. Boyd, 50 Ohio St., 46, at page 56, 33 N. E., 207, Judge Bradbury writing the opinion made an interesting observation respecting the scope of the statute. After quoting from the Conard case, supra, he says:

“That statute (now G. C. 12046) authorizes a recovery by civil action ‘according to the justice and equity of the case.’ The word ‘equity’ was evidently employed here, in its broader sense, as being consonant to natural right, not in its technical sense for the purpose of conferring jurisdiction. The remedy given was a civil action, leaving its character — whether legal or equitable- — to be determined by the nature of the relief that should be appropriate to the particular circumstances of each case. In that case (Conard v. Conard, supra) the ultimate relief sought was money only. This court, in sustaining the right of appeal, does not place that right upon the ground that the statute prescribed a suit in equity, but upon the ground that the record did not disclose an action for money only.”

We are not prepared to say that the enabling provisions of Section 12046, General Code, restrict actions thereunder to equity. It is conceivable that there may be an action under the statute which is legal in all of its aspects and the instant case may have developed such a state of facts and the cause may have proceeded strictly upon a claim for the fair rental value of the interest of the plaintiffs in the premises under consideration.

The amended petition avers that each plaintiff is the owner of an undivided one-sixth interest in fee simple of the premises described and that the defendant is the owner of an undivided four-sixths interest in such property and that he has occupied the premises for a period of seven and three-fourths years and has paid no rent or other compensation of any kind to the plaintiffs therefor; that the reasonable value of .the property is $4,000 and the reasonable value of each plaintiff’s share of the property is $80 per year.

The answer of defendant sets up three defenses to such petition:

1. That the amended petition does not state a cause of action.

2. That the court is without jurisdiction to determine the questions attempted - to be raised by the amended petition.

3. A denial of each and every allegation set forth in the amended petition.

This specific denial reaches the averments of the amended petition that each plaintiff is the owner of an undivided one-sixth interest in the premises described and that the defendant is the owner of an undivided four-sixths interest therein. This third defense brings into consideration Section 10232, General Code, and paragraph 6 thereof:

“Justices shall-not have cognizance of any action: * * * in which the title to real estate is sought to be recovered, or may be drawn in question, except in the cases provided for in the next preceding section.”

We have recently considered the application of that paragraph of Section 10232, General Code, to the jurisdiction of the Municipal Court of Dayton in the case of Lynam v. Schueler, ante 101. We there held that the Municipal Court has no jurisdiction where there is a distinct tona fide issue on the question of title, citing, among other cases, Brown, Gdn., v. Burdick, 25 Ohio St., 260.

If the factual development in the trial of the cause raised any issue to support the denial of the title of the plaintiffs, then, clearly, the. second defense was well made and the court at that juncture should have refused to determine the issue and dismissed the action. However, the proof may have disclosed that there was no issue of fact notwithstanding the issue made by the pleadings. If so, the question of title was not involved. Every intendment must be indulged to support the correctness and validity of the finding and judgment of the trial court. We may not say that the record of the testimony, if available, would not support the judgment.

The construction of Section 12046, General Code, which we adopt on this appeal, in our judgment, is practical and necessary. It would be a harsh and unjust rule to hold that in a forcible entry and detainer suit or in any action wherein it is incumbent upon plaintiff to plead and prove his title, a defendant may by the mere act of setting up a denial of such an'averment deprive the court of its jurisdiction to hear the cause. The test must be whether the factual development affords any support for the issue made on the question of title. If it does, then the statute must be given application. •

In this case, if it be assumed that the record undisputedly disclosed that the person, from whom the title of plaintiffs to the premises in question was inherited, died without will and leaving the defendant, her widower, and two children, then manifestly, unless they had conveyed their interest, they were seized of a definite interest in the real estate as a matter of law.

Without the record disclosing that the trial judge passed upon a factual dispute involving title to the premises described in the amended petition, we would not hold that such an issue was projected into the cause.

No prejudicial error appearing upon the record as it comes to us, the judgment is affirmed and the cause is remanded.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Wiseman, J.

text:
    Hergenrather, Appellee, v. State Mutual Life Assur. Co. of Worcester; et al., Appellant. Hergenrather, Appellee, v. Metropolitan Life Ins. Co.; et al., Appellant.
    (Nos. 1894 and 1897
    Decided June 26, 1946.)

      Messrs. RoutzoTm & Nevm, for appellee Bertie E. Hergenrather.

      Messrs. Gowden, Pfarrer & Grew, for appellees State Mutual Life Assurance Company of Worcester and Metropolitan Life Insurance Company.

      Mr. G. E. Miller, for appellant.
   Wiseman, J.

These are appeals on questions of law from judgments of the Common Pleas Court of Montgomery county respectively sustaining the motion of plaintiff, an appellee herein, for judgment on the pleadings in each of the two captioned cases.

Since the material allegations in the pleadings, the factual issues involved and the legal questions raised are identical in both cases, they have been consolidated and the assignments of error, briefs and the court’s opinion, filed in case No. 1894, are considered as filed in case No. 1897. In the interest of clarity, the court will consider case No. 1894.

This is an action for declaratory judgment in which the plaintiff, Bertie E. Hergenrather, alleges that the decedent, Cory L. Hergenrather, was insured for $4,000 on September 20,1933, by the State Mutual Life Assurance Company of Worcester; that in the policy of insurance the insurer agreed to pay the plaintiff, the beneficiary named therein, the principal sum plus any earnings thereon in the event of the death of the insured; that the insured died on July 12, 1945; and that proof of death was furnished and demand made for the insurance proceeds which was refused by the insurance company for the reason that defendant William E. Hergenrather, appellant herein, refused to surrender the policy. Plaintiff prays for a declaration by the court that she is entitled to the payment of the proceeds of the policy as the beneficiary thereof.

The defendant insurance company in its answer admits all material allegations in the petition and states it is ready and willing to pay the proceeds of the policy to the plaintiff upon the surrender of the policy!

Defendant William E. Hergenrather, as an individual and as administrator of the estate of Cory L. Hergenrather, deceased,, filed an answer and cross-petition. In his answer he admits certain material allegations in the petition and in the cross-petition alleges facts which are in support of other material allegations in the petition. Such defendant further alleges that -the beneficiary of the policy of insurance was “Bertie E. Hergenrather, wife of the insured”; that approximately two years before the death of the insured, he and his wife were divorced; and that prior to the divorce the' insured and his wife had entered into a separation agreement which was approved by the court granting the divorce and which agreement, in part, is as follows:

“Each party,' by these presents, is hereby barred from any and all rights or claims by way of death, inheritance, descent, * * * and all rights or claims as widow, widower, heir, distributee, survivor or next of kin, and all other rights or claims whatsoever in or to the estate of the other * * * whether now owned or hereafter acquired which may come in any manner, arise or accrue, by virtue of said relationship. * * * Each party hereto further agrees, upon request of the other, to execute and acknowledge any and all other deeds or instruments of release free from any apparent fight of dower thereon; and to execute and acknowledge other instruments of conveyance necessary to carry out the provisions of this agreement * * *.” Defendant administrator claims that under the separation agreement he, as administrator of the estate of the insured, is entitled to the proceeds of the policy.

The trial court having given judgment for the plaintiff on the pleadings, the defendant administrator has filed assignments of error as follows:

“(1) Said court erred in sustaining the motion of plaintiff-appellee for judgment on the pleadings.

“(2) The judgment is contrary to and against the law of the case and because of said erroneous judgment, defendant-appellant was deprived of presenting evidence material to the issues, and was prejudicial to defendant-appellant.”

The legal principle is fairly well established, that where a married woman is named as a beneficiary in a policy of insurance on the life of her husband she is entitled to the proceeds of the policy, eyen though the parties were divorced before the death of the husband. In 29 American Jurisprudence, 976, Section 1309, the rule is stated thus:

“In accordance with the general rule, hereinbefore noted, that a life insurance policy, originally valid, does not cease to be so by reason of the cessation of the insurable interest or relationship of the beneficiary in the meanwhile, the rule prevailing in many, but not all, jurisdictions is that in the absence of a policy provision to the contrary or regulation of the matter by statute, the rights of the beneficiary in ah ordinary life insurance policy, including the right to receive the proceeds thereof upon maturity of the policy, are in no way affected by the mere fact that the parties are divorced subsequent to issuance of the policy. This is likewise the rule although the beneficiary was identified in the designation made prior to the divorce as the ‘wife’ of the insured, and'notwithstanding that one who sustained the relationship of legal wife to the insured by virtue of a marriage subsequent to the divorce was living at the time of his death.”

In Overhiser, Admx., v. Overhiser, 63 Ohio St., 77, 57 N. E., 965, 81 Am. St. Rep., 612, 50 L. R. A., 552, it was held:

“When a married woman is named as a beneficiary in a policy of insurance on the life of her husband she is entitled to the proceeds of the policy, notwithstanding a divorce obtained by her before his death.”

In Valentine v. Van Schoyck, 19 Ohio Law Abs., 525 (Court of Appeals, Second Appellate District), it was held:

“When a married woman is named as a beneficiary in a policy of insurance on the life of her husband, she is entitled to the proceeds of the policy notwithstanding the fact that the parties have been divorced and the husband has remarried before his death.

“The term ‘wife’ after the name of the beneficiary in an insurance policy is merely descriptive.”

See, also, Huff v. Hartlieb, 14 Ohio App., 191, in support of the same proposition of law.

But it is contended by defendant administrator that the cases cited do not reach the question herein raised, viz., whether the separation agreement between husband and wife worked a forfeiture of the wife’s rights as beneficiary. The right of the wife to recover the proceeds of the policy does not hinge on the existence of a relationship of husband and wife, but is determined by the well established principles of contract law. The pleadings do not disclose any terms of the policy which would indicate that the right of the beneficiary to the fruits of the policy is conditioned upon her remaining the wife of the insured. The fact that her status had changed before the death of the insured did not in any manner deprive her of a right she already possessed. The words “wife of the insured” after the name of the beneficiary were merely descriptive.

The defendant administrator contends it was not the intention of the parties that the plaintiff should recover the proceeds of the policy. We cannot draw that conclusion from the pleadings. There is no allegation in the pleadings indicating whether the insured reserved the right to change the beneficiary. If he did not reserve the right to change the beneficiary, the position of defendant administrator would be most untenable. If the insured did reserve the right to change the beneficiary, he easily could have divested plaintiff’s right by changing the beneficiary, and, upon his failure to do so, the court would be justified in assuming that he intended that the beneficiary named should receive the insurance proceeds.

We concede the wife could have relinquished her right by contract. Annotation, 52 A. L. R., 400; note, 128 Am. St. Rep., 316. Did the separation agreement by its terms operate as a relinquishment of her rights to the proceeds of the policy? We do not think so. Her right did not “come in any manner, arise or accrue by virtue of said relationship” as provided in the separation agreement. Her right did not arise out of the relation of husband and wife. True, she was his wife at the time the policy was issued and this fact undoubtedly was the reason why she was named as beneficiary, but her property interest in the policy did not arise out of the marriage relation. Wallace v. Mutual Benefit Life Ins. Co., 97 Minn., 27, 106 N. W., 84, 3 L. R. A. (N. S.), 478.

We are of the opinion that the trial court did not commit error in awarding the plaintiff judgment on the pleadings. The judgment of the trial court is affirmed.

Judgment affirmed.

Miller, J., concurs.

Hornbeck, P. J., concurs in the judgment.


author: Doyle, J.

text:
    Houser, a Minor, Appellant, v. Humbel, Appellee.
    (No. 1115
    Decided November 30, 1945.)

      Mr. Alto W. Brown and Mr. J. C. Standen, for appellant.

      Mr. R. H. Rice, for appellee.
   Doyle, J.

We are called upon in this appeal on questions of law from the Court of Common Pleas of Lorain county to determine the applicability of certain statutes to the relative rights of an equestrian and a motorist at a road intersection.

•The appellant herein, while riding a horse in a westerly direction on Ivanhoe road in the village of Sheffield Lake, came into violent collision in the road intersection with an automobile being driven northeasterly on Kenilworth road by the appellee. The equestrian was seriously injured.

There were no directive signs in the vicinity of the intersection, and neither one of the highways was a main thoroughfare. The equestrian approached the intersection from 'the right, of the motorist.

A jury returned a verdict in favor of the motorist, and' judgment was entered thereon.

Among the errors charged in this appeal is the failure of the court to properly charge the jury on the relative rights and duties of the parties.

In the charge appears the following:

"The court further charges the jury that as between plaintiff and defendant the one first entering the intersection in a lawful manner and in the exercise of ordinary care would have the right of way over the other at that intersection.

“By right of way is meant the right of traffic to proceed uninterrupted in a lawful manner in the direction in which it is moving in preference to other traffic approaching from a different direction into its path.”

The sole question presented in this allegation of error is whether the statutes of this state apply -in the same manner to an equestrian and a motorist meeting at an intersection of two roads, neither one of which is a main thoroughfare or controlled by directives, as such statutes do to two motorists meeting at such an intersection.

Section 6.307-40, General Code, provides:

“ Excepting where otherwise provided the operator of a vehicle, street car or trackless trolley shall yield the right-of-way at an intersection to a vehicle, street car or trackless trolley approaching from the right.”

Section 6307-2, General Code, defines “right of way” as follows:

.“The right of a vehicle, street car, trackless trolley or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, street car, trackless trolley or pedestrian approaching from a different direction into its or his path. ’ ’

There is no question that the above statutes regulate the traffic of automobiles at this intersection, that the driver ‘of an automobile approaching from the left would be required to yield the right of way to a vehicle approaching from the right and that the vehicle approaching from the right would have an absolute right of way, qualified only by the requirement that, in proceeding uninterruptedly, it proceed in a lawful manner. Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831.

Under the same “uniform traffic act” in which the above statutes appear, also appears Section 6307-5, General Code. It is:

“Every person riding, driving or leading an animal or animals upon a roadway shall be subject to the provisions of this act applicable to the driver of a vehicle, except those provisions of this act which by their nature- can have no application. ’ ’

As we view this statute, it is our judgment that it was the intention of the Legislature to give the same right of way to an equestrian at a road intersection of the kind in question, as it specifically gave to a motorist, and that the provisions of the traffic act above quoted are not such as by their nature can have no application.

The court’s failure to instruct on the subject of these preferential rights and its specific charge to the contrary, and the failure to charge properly on the duties of the motorist approaching from the left, we determine to be prejudicially erroneous, and the error pertains both to the question of the claimed negligence of the motorist, as well as to that of the equestrian.

We have examined the other claimed errors, and find none prejudicial.

Judgment reversed for the error above noted, and the cause remanded.

Judgment reversed.

Washburn, P. J., and Stevens, J., concur.


text:
    Peterson et al., Appellees, v. Mitchener et al., Appellants.
    (No. 492
    Decided January 18, 1947.)

      Messrs. Miller & Finney, for appellees.

      Mr. Morris D. Bice and Mr. James M. Matthews, for appellants.
   Wiseman, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Greene county, Ohio. This is an action in partition, filed on June 7, 1945, wherein the plaintiffs, Mattie Peterson and Margaret Long, and the defendants, Lawrence Mitchener, Florence Mitchener, Yergo Mitchener, Thurman Mitchener, Alice Mendenhall, Walter Mitchener and H'orace Mitchener, were all children of Samuel C. and Margaret Mitchener.

The record shows that Samuel O. Mitchener died intestate on July 3, 1941, owning the undivided one-half interest in the real estate; that at the time of his death he was survived by his widow, Margaret Mitchener, and nine children; that administration of his estate was opened and Walter Mitchener and Florence Mitchener were appointed as administrator and administratrix' of the estate; that on October 23,1942, the administrator and administratrix filed a petition in the Probate Court of Greene county, Ohio, to sell the lands to pay debts; that a controversy arose between the children relative to the disposition of the property; that finally an agreement was entered into on the 17th day of April, 1944, wherein all the children agreed to allow the mother to occupy the farm and enjoy the use of the real estate during her natural life; that thereupon the land sale action which was pending in the Probate Court was dismissed; and that on July 3, 1944, a certificate of transfer was filed in the Probate Court of Greene county, transferring the undivided one-half interest in the farm, which was owned by the decedent, to the nine children and the widow, each child being entitled to two-twenty-sevenths interest, and the widow entitled to one-third interest.

On July 6, 1944, Margaret Mitchener, the widow, transferred to Walter Mitchener, a son, and to Florence Mitchener, a daughter, all her interest in the farm, which consisted of the undivided one-half interest which she owned at the time of her husband’s death and also one-third interest which she took under the intestate law in the one-half which was owned by her deceased husband. .

On April 1, 1945, the widow, Margaret Mitchener, died intestate, leaving the same nine children surviving her as her heirs at law.

As a defense to the action in partition, the defendants claim that by virtue of the deed Florence Mitchener and Walter Mitchener were each entitled to ten-twenty-sevenths interest in the real estate and the other seven children were entitled to a one-twenty-seventh interest.

The case was submitted to this court on the record taken in the trial court, together with some additional testimony which was taken before this court. The sole question for this court to determine is whether the deed which was executed by Margaret Mitchener to her two children, Florence and Walter Mitchener, is a good and valid deed. All other issues made by' the pleadings relative to consideration, execution and delivery of the deed, have been abandoned. Plaintiffs contend that the purported deed “was secured by the grantees through misrepresentation and fraud, and that undue influence was brought to bear upon the grantor in securing the execution thereof; that said deed is null and void and of no effect. ’ ’

We have been furnished with the written opinion of the trial judge, in which he has reviewed very ably, but concisely, the evidence introduced, and concludes that the mother executed the deed “under a mistaken idea as to what the facts were as to her two children and that in all probability she would not have done this had she known the true facts. The court thinks that she did it under duress and fraud, and the deed is set aside and held for naught.” We approve of the decree of the trial court. The trial judge did not elaborate on the evidence adduced in support of his conclusion that the transaction was vitiated for fraud.

After consideration of the entire record this court is of the opinion that there is ample evidence to support the finding of the trial court, and this court so finds that Margaret Mitchener was induced to execute the deed to her two children through a misrepresentation of the true facts which existed at the time, and was unduly persuaded by the two grantees in the deed, Florence and Walter Mitchener.

The record shows that up until the father’s death all the members of the family were friendly and that after the death of the father several family meetings were held, at which time there was discussed the matter of the administration of the estate of the father and the eventual disposition of the real estate. The Federal Land Bank of Louisville held a mortgage on the real estate, which complicated the matter. During those negotiations a, difference of opinion arose between the children, the two petitioners, Hattie Peterson and Margaret Long, taking the position that their mother desired to remain on the farm the rest of her lifetime, and that the children, in order to effect that purpose should enter into an agreement so that she would be assured a home on the farm and have the use of the farm during her lifetime. The record shows that the mother was desirous of accomplishing that purpose. All the children testified that that was the mother’s desire. However, several of the children, including Walter Mitchener, Florence Mitchener and Yergo Mitchener, took the position that all the children should deed their entire interest, outright, to the mother, placing the entire ownership of the farm in the mother’s name, sq that she could dispose of the farm in any way she saw fit. During those negotiations, and even prior to the father’s death, information had come to several of the children that Florence Mitehener and Walter Mitehener had designs on securing the farm the moment the father died. For that reason the petitioners herein, Hattie Peterson and Margaret Long, objected to placing the entire ownership of the farm in the mother’s name. It was their purpose to proteet the mother in her desire to live on, and have the use of, the farm during her lifetime. The evidence shows that these two petitioners believed that Florence and Walter Mitehener would induce the mother to transfer the farm to them if she had the power to do so.

The evidence further shows that these two petitioners repeatedly urged that all the children enter into a written agreement whereby they would give the mother the right to live on the farm and the exclusive use of the farm during her lifetime. The execution of that written agreement was opposed in the first instance by Florence and Walter Mitehener. Those two children refused to sign the instrument until they were assured that the execution of such instrument would not deprive the mother of making a deed to that-interest which she already possessed. Upon being assured by Mr. Rice, one of the counsel in this case, who was present at a family gathering, that the execution of that agreement would not deprive the mother of her right to transfer her interest, Florence and Walter Mitehener agreed to sign, and, thereupon, all the children entered i-nto the agreement.

It is significant to note that at that- gathering, when the question came up as to the right of the mother to make a transfer of her interest, Mr. Rice made the statement, in answer to a question put by Vergo, as follows: “It might be possible, but you still would have your consciences to live with.”

The record shows that the mother took little or no part in the negotiations; that the discussions and differences arose between the children; that the feeling between the two groups became very bitter; that the mother had expressed herself at different times that she desired all of her children to share equally in the farm-after the death of her husband and herself; that about the time the agreement was executed a change in attitude was noticed toward these two petitioners on the part of the mother; that the mother seemed'to be confused as to matters involving the farm and estate; and that after the agreement was signed she still worried because the matter was not settled) indicating a disturbance by someone.

The record shows that it was the belief of the children, at the time the agreement was executed, that the provisions of the agreement would be carried out and that the matter should be held in statu quo under the agreement until the death of the mother. However, within a few weeks after this agreement was entered into ’a deed passed between the mother, who at that time was 81 years of age, and Florence and Walter Mitehener. That transaction was not disclosed to any of the children, with the exception of Alice Mendenhall, who testified that she had knowledge of the transfer. The deed was not recorded until after the death of the mother.

There is also evidence in the record, which is not refuted, that at times when these two petitioners would call at the home to converse with the mother, Florence and Walter Mitehener and Yergo Mitehener and Yergo ’s wife, would see to it that the mother was never left alone in conversation with these two petitioners. There is also evidence in the record that at times when the mother would begin a conversation with respect to the farm, Florence would shake her head or' frown and the mother would change the conversation, and at times Florence would change the conversation.

There is ample evidence to support the conclusion that Florence and Walter Mitchener encouraged the mother in the belief that it was these two petitioners, Hattie Peterson and Margaret Long, who were attempting to sell the farm, and that it was Florence and Walter who were opposing the sale, whereas, in truth and in fact, it whs Florence and Walter Mitchener, as administratrix and administrator, who brought the land sale proceedings and Hattie and Margaret were at all times attempting to save the farm for use of the mother during her lifetime.

There is ample evidence to indicate that the mother was misled in the belief that these two petitioners w^ere opposing her desire to retain the farm for her residence during her lifetime, and that Florence and Walter Mitchener were doing everything in their power to protect her in effecting her purpose to retain the farm.

Florence Mitchener admitted that the change of attitude on the part of the mother toward these petitioners arose by reason of her belief that they were attempting to sell the farm.

Both Florence and Walter Mitchener always resided on the farm and lived with the father and the mother until Walter’s marriage. At the time of his marriage it was agreed that he should farm on the thirds and. that the father should move off the farm, which he did. However, within about six months the father, mother and Florence moved hack onto the farm, living in the small house, the father continuing to do work on the farm as he did formerly. The record shows that the agreement to farm on the thirds was never carried out, and that from 1930, the year Walter was married, until the death of the father, all the income of the farm was put into one fund, the father taking care of the checking account for a number of years, after which his account was closed, and thereupon Walter opened up a checking account in his name. The living expens.es of the father, mother, Florence and Walter all came out of that fund; payments were made on the mortgage, and all purchases of machinery or equipment for the farm were paid out of that fund.

Florence at all times lived with the father and mother, and after the death of the father continued to live with the mother. From 1924 up until Walter married, Walter lived with the father and mother, and after his marriage in 1930, he lived in the large house on the farm, while the father, mother and Florence lived in the small house. A close family relationship continued to exist up until the mother died. They worked and lived as one family unit. The mother reposed confidence solely in Florence and Walter.

The court cannot avoid the conclusion that Florence and Walter bore a confidential relationship to the mother, and, as such, owed a duty to her to exercise the utmost good faith in any transaction which took place between them. We are convinced that, based on the evidence in this case, Florence and Walter Mitchener did not exercise the utmost good faith toward the mother in effecting the transfer of the real estate, and they owed a duty to make a true disclosure of the facts, which they failed to make. On the other hand, the evidence shows that they encouraged her in a wrong belief as to the facts; they used these means to induce the mother to make a deed of her interest in the farm to them which she otherwise would not have done. Such conduct and acts show the exercise of undue influence. The conclusion, that they pursued this course of conduct is supported by the fact that both Florence and "Walter denied on the witness stand that they had brought the land sale proceeding, which was a matter of record.

For that reason this court finds the evidence to be clear and convincing that the mother was unduly influenced in the execution of the deed, and that the acts of Florence and Walter Mitehener were a breach of that duty and trust which they owed to the mother because of the confidential relationship which existed between them. Equity will not protect them in their wrongful act. Equity looks with extreme jealousy on transactions between parties who stand on a confidential relationship. Unless the person who is benefited can show the utmost good faith and that the benefit was conferred with a full knowledge of the circumstances, it will be set aside. In equity the conduct of Florence and Walter amounts to fraud which requires the court to set the deed aside. See 19 Ohio Jurisprudence, 326, 345, 509; 16 American Jurisprudence, 462, 660; Berkmeyer v. Kellerman, 32 Ohio St., 239, 251, 253, 30 Am. Rep., 577; Wasmuth v. Prugh, 31 Ohio Law Abs., 56, 60, 61; In re Estate of Chase, 31 Ohio Law Abs., 111, 114.

Under such a state of facts the court is not permitted to measure the fairness of the transaction or indulge in any presumption as to whether the grantees were more equitably entitled to the property than the other children.

Accordingly, the court orders the deed executed on July 6, 1944, set aside and held for naught; finds that each child is vested with a one-ninth interest in the land; that the plaintiffs are entitled to an order of partition, which is hereby granted; and that the Federal Land Bank of Louisville has a lawful mortgage on the premises as set up in its answer.

No order is made respecting an accounting of Walter Mitehener as tenant.

An entry may be drawn accordingly.

Decree accordingly.

IIoiinbeck, P. J., and Miller, J., concur.


author: Milleii, J.

text:
    Edwards, Appellee, v. Benedict et al., Appellants.
    (No. 3912
    Decided October 31, 1946.)

      Mr. Rodney B. Baldwin and Mr. Warren E. Insley, for appellee.

      Messrs. Burr, Porter, Stanley & Treffinger and Mr. Bruce G. Lynn, for appellants.
   Milleii, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleqs of Franklin county, Ohio. The action was one for damages as a result of injuries sustained in an automobile accident, which occurred on the 6th day of December 19-14, between a Chevrolet truck traveling in a westerly direction on Oak street and a Plymouth coupe being operated in an easterly direction -on Oak street by Harry Fisher, Jr., an employee of the defendants, appellants herein. The action is based on two theories: (1) That Fisher was in the employ of the defendants and that he was acting within the scope of his employment at the time of the accident; (2) The defendants entrusted an automobile to Fisher, when they knew or by the exercise of ordinary care should have known that Fisher was so inexperienced and so incompetent that it rendered the car á dangerous instrumentality in his hands.

At the conclusion of the plaintiff’s case and also at the close of the case a motion was made by the defendants for an instructed verdict. The court found, however, that there was substantial evidence on both issues and overruled both motions. The jury returned a verdict of $8,000 in favor of the plaintiff, appellee herein.

The assignments of error may be epitomized by two questions:

(1) Was Fisher acting within the scope of his employment at the time of the accident ?'

(2) Did the defendants entrust an automobile to one whom they knew or should have known to be so incompetent, inexperienced or so reckless as to render it a dangerous instrumentality?

The record discloses that Capital street is a public street in the city of Columbus, running in an easterly and westerly direction between East Broad street and Oak street; that tbe defendants have a garage on tbe north side of Capital street and across the street on the south side they own and operate a body shop. Approximately 160 feet east of the garage and on Capital street is a parking lot on which the defendants park cars during the day and at night and, when needed, these ears are driven to the garage and body shop. Fisher was employed by the defendants on or about the 12th day of September 1944, to work in the body shop, but part of his duties consisted fin driving cars from the parking lot to the shop. On the day of the injury Fisher was instructed to drive the Plymouth automobile to the shop, but was not given definite instructions as to the route he was to pursue. Instead of taking a direct westerly course he drove in an easterly direction intending to cover several blocks and then return to Capital street, passing in front of the lot from which he had taken the car and then driving’ westerly to the garage. While he was traveling in an easterly direction and approximately one and one-half blocks from the parking lot he-made a left-hand turn directly in front of the plaintiff’s car, resulting in the injuries complained of.

It was conceded during the argument by counsel for the defendants that Fisher was negligent in the operation of the car.

The record discloses that the two cars came together on the north side of Oak street which runs in an easterly and westerly direction, at a point approximately 12 feet’west of its intersection with Washington avenue. The plaintiff contends that the manner in which Fisher made his turn as described, before reaching the intersection, showed clearly that the Plymouth car was being operated by a person grossly inexperienced and incapable. At the time of Fisher’s employment by the defendants in September 1944, he was 16 years of age. He had no driver’s license and had driven a car about 12 times on short trips while accompanied by his father. He was not questioned at that time as to whether he had a driver’s license or had ever driven a car before. Sometime before the injury, however, the defendants did learn that Fisher had no driver’s license.

It is claimed by the defendants that Fisher, at the time and place of the accident, was not acting within the scope of the employer’s business as a matter of law, and that the court erred in submitting the question to the jury. The court held that there was not such a divergence from his regular duties that the very character of relationship of master and servant was severed, and therefore it was a proper question to submit to the jury.

In discussing that question it seems feasible to look to the basic authority of Fisher and to the acts which he had been performing for his employer during the entire course of his employment. One of his jobs was to drive cars from the lot in question to the body shop and he was so instructed on the date of the accident. He had no specific instructions as to the route he should take or the manner in which he should operate the car. The defendants contend that Fisher was authorized to drive the car only in Capital street since the garage was only 160 feet due west on Capital street. The record does not show that Fisher was ever given any instructions as to the course he was to follow. The plaintiff contends that on the day of the injury Fisher had the option of selecting his route and that he was fully within the scope of his employer’s business even though he selected the longer route. The record discloses that Fisher was on no mission of his own at the time of the accident. He stated that his only purpose was to return the car to the garage. He did admit that he took the course he did for his own pleasure.

The principle of law here involved is well ■ settled and not disputed by counsel. Its application to the evidence is the problem. It is claimed here on behalf of the defendants that the driver of the car had so far deviated from the path of his employment as to render inapplicable the doctrine of respondeat superior. Our attention has been called to 4 Ohio Jurisprudence, 716, Section 110, which says:

“Although a servant or employee may previously be serving his principal if he deviates from the path of his employment his employer is not liable for negligence occurring during the deviation. Thus, where a servant or employee directed to deliver an automobile at a certain destination appropriates the car to his own use and devotes it to his own purposes exclusively by taking a ride for his own pleasure, he is engaged in his own exclusive enterprise. By thus stepping aside from his master’s business, to serve his own purposes, the relation of master and servant existing is suspended and no liability for the servant’s act committed during the period when he turned aside from his master’s business attaches to the latter.”

The same Subject is treated also in 26 Ohio Jurisprudence, 639, which provides:

“To sever the servant from his master’s employment, it is necessary that the act performed be such a divergence from his regular duties that its very character' severs the relationship of master and servant. An immaterial deviation, made by a servant in the performance of his duties, will not relieve his master from liability for his negligence. Thus, a truck driver who is permitted to take the truck home and leave it in his back yard over Sunday does not so deviate from the scope of his authority as to free his master from liability where he leaves the truck standing along the curb of the street without lights while he walks to the store to procure lights for it.”

The above statement of law was cited and followed by the Supreme Court of Ohio in the case of Amstutz, Admr., v. Prudential Ins. Co. of America, 136 Ohio St., 404, 26 N. E. (2d), 454. We quote from the opinion at page 409:

“An immaterial deviation by a servant will not, as a matter of law, be deemed to be an abandonment of his services to his employer, unless such deviation is so divergent ‘from his regular duties that its very character severs the relationship of master and servant.’ 26 Ohio Jurisprudence, 639, Sec. 619.”

The same principle of law is stated in 5 American Jurisprudence, 714, Section 376:

“While, as stated in the preceding section, the owner of an automobile is not liable for injuries or damages caused by the negligent operation of his automobile while it is being used by an employee for his own business or pleasure, the servant must have abandoned and turned aside completely from the master’s business, to engage in some purpose wholly his own, before the master ceases to be liable for his act; it is not every deviation from the direct line of his duties on the part of an employee that constitutes a turning aside from, and an abandonment of, his master’s business. A slight deviation by the servant in charge of a motor vehicle, for his own purposes, when he is on business for his master, does not affect the liability of the master for an injury resulting from the negligent operation of the automobile by the servant. This rule that a slight- deviation will not take the servant out of the master’s business so as to relieve the latter from liability for injuries and damage caused during such deviation lias been applied in a great variety of situations. The fact that the employee may, to serve some purpose of Ms own, deviate a few blocks out of Ms way or choose a different way back, even though it is not the most direct route, does not, as a matter of law, constitute an abandonment of the master’s work.” (Italics ours.)

Our attention has been called to the case of Bauman v. Sincavich, 137 Ohio St., 21, 27 N. E. (2d), 772, but we do not believe the facts in that case are applicable to the case at bar.- In that case the employee deviated his course of travel two and two-tenths miles in order to go on a mission for two young men he had picked up on the highway. Soon after he had completed that mission and had turned to go home the accident occurred. The court held that the submission of the case to the jury was unwarranted. However, in the case at bar the driver of defendants’ car testified, and it was not denied, that his motive at all times was to deliver the ,car to the garage. As a matter of fact this same course had been taken by him and another employee on numerous occasions. His deviation of the several blocks was made in order to derive more pleasure from the task at hand.

A general rule in passing upon a defendant’s motion for a directed verdict is that the trial court must treat as true all the evidence, together with any and all inferences which the jury may reasonably draw therefrom in favor of the plaintiff and if after so treating the evidence' the court should find that reasonable minds may reach different conclusions as to any question of fact essential to the claim of the party against whom the motion was made, the motion should be denied and the case submitted to the jury. See Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246; Amstutz, Admr., v. Prudential Ins. Co. of America, supra, at page 408.

We are referred also to Restatement of the Law o£. Agency, Volume I, Section 237:

“If, having in mind either his master’s business and his own, or only his master’s business, the servant departs too far from the space or time limits, he n© longer acts within the scope of employment. The same rule applies to re-entering the employment. He cannot re-enter it, however much he desires it, until he is within the flexible limits of employment. ’ ’

The record discloses' that Fisher was never more than approximately one and one-half blocks from Ms destinatión and had he completed his trip he at no time would have been any further away. Measured in feet he would have been approximately 600 feet from the parking lot at the furthest point. Under that rule we believe that it would still have been a jury question to determine whether he was within the flexible limits of his employment. In the light of the record we are of the opinion the court did not err in submitting that question to the jury.

The next question presented is whether there was sufficient evidence in the record showing that the defendant was negligent in entrusting an automobile t© one whom he knew or should have known to be incompetent, inexperienced and so reckless as to make it a dangerous instrumentality. On that subject we find a recent case decided on July 25, 1945, being Williamson v. Motor Lines, Inc., 145 Ohio St., 467, 62 N. E. (2d), 339, paragraphs one and three of the syllabus of which are as follows:

“ 1. A motor vehicle is not an inherently dangerous? instrumentality, and an owner thereof is not generally liable for its negligent operation by another to whom it is entrusted to be used, or when it is in fact used for the other’s own purpose. Liability may arise, however,, where an owner permits the operation of his motor vehicle by one who is so lacking in competency and skill as to- convert it into a dangerous instrumentality. ’ ’

"3. To give rise to such liability, it is essential that it be shown by competent evidence that the owner had knowledge of the driver’s incompetence, inexperience or reckless tendency as an operator, or that the owner, in the exercise of ordinary care, should have known thereof from facts and circumstances with which he was acquainted.”

Also, it' is stated in 5 American Jurisprudence, 696:

"An owner who lends his automobile to another, knowing that the latter is an incompetent, reckless, or careless driver, is liable for such person’s negligence; the owner’s liability in such cases is based upon his own negligence in intrusting the automobile to such a person. Intrusting the care to a minor child known to be a reckless and incompetent driver, or to one forbidden to operate a car, or to an unlicensed driver, constitutes an act of negligence for which the owner is liable.” (Italics ours.)

'Now, what 'information did the defendants have as to Fisher’s competency as a driver prior to the alleged injury? They knew that he was a boy 16 years of age and that he had only a temporary driver’s license which permitted him to drive an automobile only when accompanied by a licensed operator who was actually occupying a seat beside the driver. They should have known all of those facts concerning Fisher’s experience as a driver which would have been inquired into by an ordinarily prudent person in the exercise of ordinary care under the same or similar circumstances. What the defendants should have known from all the facts and circumstances is a factual question which only the jury can determine.

From this record we cannot say as a matter of law that Fisher was a qualified, competent and experienced driver at tlie time of the accident. That is a question on which reasonable minds might differ, and which should, therefore, be for the determination of the jury under proper instructions. We recognize that ■ out ruling on the first epitomized assignment of error presents a very close question and should we be in error on that proposition we feel that there would be no change in results under the two-issue rule as announced in the case of Sites v. Haverstick, 23 Ohio St., 626.

We find no error in the record and the judgment is affirmed.'

Judgment affirmed.

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


author: By the Court.

text:
    Shadwick, Appellee, v. Hills et al., d. b. a. Hills Cab Co., Appellants.
    (No. 3897
    Decided October 8, 1946.)

      Mr. Russ Bothwell, for appellee.

      Mr. Clifford L. Rose, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, Ohio. The action arose in the Municipal Court of Columbus wherein the plaintiff was given judgment in the amount of $294.86 for medical expenses resulting from injuries to the minor child of the plaintiff.

The case was tried without the intervention of a jury. The trial judge rendered separate finding of facts and conclusions of law as follows:

“Separate Finding of Law and Fact.

“The court finds the facts in this cause to be as follows: that on May 25, 1945, at about 10:45 a. m. plaintiff called for one of defendant’s cabs. When the cab arrived plaintiff placed her four-year-old son in the rear seat of the cab through the left rear door of the cab. Upon invitation of the driver of the cab plaintiff seated herself in the front seat next to the operator of cab. The cab then proceeded west to Cassady Ave. and then south on Cassady toward Fifth Ave. Shortly after crossing a railroad spur track which ran across Cassady avenue it was noticed that the right rear door was open and the child was gone. Cab was being driven at approximately 20 miles per hour at that time. Driver of cab and plaintiff went back and found child in roadway. Then took him to Grant Hospital where he was treated and discharged. There was evidence that right rear - door of the cab did not. fit snugly up against the door post of the cab. Child had abrasions on back of head from the-fall from moving of cab.

“Conclusions of Law.

“Court finds for plaintiff for $294.86 and costs. It is the conclusion of the court that defendant was negligent in allowing a child of tender years to ride unattended in the rear compartment of its cab.”

We have read the record and find the evidence to be conflicting on the principal issues of fact. The trial judge resolved the issues of fact in favor of the plaintiff. On appeal to the Common Pleas Court of Franklin county the judgment of the trial court was affirmed.

There is assigned as error the action of the trial court in overruling the motion of the defendants, appellants herein, to find in their favor, which motion was made at the close of plaintiff’s case and renewed at the close of all of the evidence. The contention is made that there was no showing of negligence, but that if defendants were negligent the plaintiff’s negligence would bar recovery.

We cannot reverse the judgment unless we find it to be against the manifest weight of the evidence. There is evidence supporting the finding of the trial court that the defendants were guilty of negligence. Assuming the evidence shows the defendants were guilty of negligence as found by the trial court, with which we agree, was the plaintiff guilty of contributory negligence which would bar recovery? The fact that the defendants were acting as common carriers and w.ere charged with the exercise of a high degree of care toward the plaintiff and her four-year-old child did not relieve the plaintiff of the duty to exercise the proper parental care toward her child. If the plaintiff is found to be at fault in any degree she cannot recover. In 4 Ohio Jurisprudence, 606, Section 19, the text is as follows:

“The common law in determining responsibility for an injury takes no account of the degree in which each of the parties may be shown to have been responsible for the injury. If the plaintiff can be said to have been at fault in any degree he will be barred of recovery. It malees no difference that the defendant was responsible in a greater degree. In accordance with these principles it has been held in automobile cases that if the plaintiff was negligent and his negligence directly contributed in the ‘slightest degree’ to cause his injury, then the jury’s verdict must be for the defendant and this is true although the defendant was negligent.,* * *”

The record shows that at the time the plaintiff and her minor child entered the taxicab the plaintiff opened the left door to the rear compartment of the cab and placed her child in the compartment. She then walked around the cab and entered it from the right side, taking her seat in front at the right side of the driver. The evidence shows that she was invited by the driver to sit in the front seat. The evidence is conflicting as to whether this invitation was extended to her at the time she was placing her child in the rear compartment or whether the invitation was given after she had walked around the cab and was in the act of entering the cab on the right side. The words used by the driver in extending an invitation to the plaintiff to sit on the right of the driver cannot be construed as an order or a positive direction. The evidence is fairly clear that after the two passengers entered the cab neither the driver nor the plaintiff paid much attention to ■ the minor child in the rear compartment.

In its conclusion of law the trial court found the defendants guilty of negligence “in allowing a child of tender years to ride unattended iñ the rear compartment of its [their] cab.” The trial court did not find, and this court does not find, from the evidence that the accident was caused by a defect in the right door to the rear compartment of the cab. The trial court made no finding of fact relative to the inattention of the driver and of the plaintiff toward the child. Nevertheless, the evidence indicates in this regard that both the driver of the cab and the plaintiff were guilty of negligence and that the negligence of the plaintiff directly contributed to the proximate cause of the injury. •

In 30 Ohio Jurisprudence, 581, Section 32, the rule with reference to contributory negligence on the part of the parent is stated as follows:

“The right of action of parents to recover for personal injuries to a child is predicated upon the assumption that the parents are free from contributory negligence; the contributory negligence of the parents bars such recovery. If the parent is in fault ‘in any degree,’ he cannot recover for such injuries to his child. ’ ’

In Bellefontaine Ry. Co. v. Snyder, 24 Ohio St., 670, the second paragraph of the syllabus is as follows:

“Where an infant child, intrusted to the care and custody of another by the father, is injured through the negligence of a railroad company, the custodian of the child also being guilty of negligence contributing to the result, although the infant may maintain an action for such injury, the father cannot, the negligence of his agent, the custodian of the child, being in law the negligence of the father.”

See, also, City of St. Bernard v. Steingrube, 16 Ohio App., 151, and Marmorstein, Recr., v. Schuck, 29 Ohio App., 229, 163 N. E., 508.

The contention is made that the doctrine of res ipsa loquitur applies to the facts in the instant case. We do not agree. The plaintiff in her petition charged the defendant with specific acts of negligence and did not rely on the doctrine of res ipsa loquitur.

The failure of the trial court to sustain the motion of the defendants on the ground that the plaintiff was guilty of contributory negligence constitutes reversible error.

The defendants assign as error the improper admission of evidence. Plaintiff’s counsel was permitted over objection to examine one of defendants’ witnesses concerning defendants’ relation with an insurance company and to elicit the fact that defendants were insured. In view of the fact that, under an ordinance of the city of Columbus, taxicab companies are required to carry insurance and that the case was tried to the court and not a jury, we do not find the ruling of the trial court in admitting such testimony to be erroneous. Furthermore, we find the trial court did not commit error in permitting counsel for plaintiff to testify relative to the condition of the door on the cab as his testimony did not substantially contradict the testimony of plaintiff’s own witness and did not amount to an impeachment of such witness who testified on the same subject.

The defendants also assign as error the improper exclusion of evidence. Defense counsel sought to introduce into evidence a written statement signed by the plaintiff the day after the accident. The record does not disclose that the plaintiff contradicted substantially the written statement. To admit into the evidence such a statement would have been prejudicial error. Young v. Swartz, 33 Ohio Law Abs., 324, 34 N. E. (2d), 795. See Babbitt v. Say, Admr., 120 Ohio St., 177, 165 N. E., 721. Furthermore, most of the written statement appears in the record under cross-examination of plaintiff, and the failure to introduce the statement was not detrimental to defendants.

Finally, the defendants claim as error that the judgment is against the manifest weight of the evidence and is not supported by the evidence. As stated above, although there is sufficient evidence to support the finding of the trial court that the defendants were guilty of negligence, the plaintiff’s negligence would bar recovery. Accordingly, we hold that the judgment of the Common Pleas Court affirming the judgment of the Municipal Court was not supported by the manifest weight of the evidence. The judgment is reversed.

Judgment reversed.

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